UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE 

ENCYCLOPEDIA 


OF 


UNITED  STATES  SUPREME 
COURT  REPORTS 


be:ing  a' 


Complete  Encyclopedia  of  All  the  Case  Law  of  the  Federal 
Supreme  Court  up  to  and  including  Volume  225  U.  S. 
Supreme   Court   Reports  (Book   56   Lawyers'  Edition) 


UNDER  the;  editorial  supervision  oe 
THOMAS    JOHNSON    MICHIE 


VQlume   XII---Supplement 


THE    MICHIE    COMPANY,    LAW    PUBLISHERS 

CHARLOTTESVILLE,    VA. 

1913 


Copyright,  1913 

BY 

The  ]\IiCHiE  Company 


n-^^ry 


HOW    TO    USE   THE   SUPPLEMENT. 


Having  first  consulted  the  original  work,  refer  to  the  same  title  in  the  Sup- 
plement and  the  same  page  and  note  number.  The  first  number  in  the  notes  re- 
fers to  the  page  of  the  original  work  where  the  additional  matter  belongs.  The 
second  numbjer  refers  to  the  note  on  that  page.  New  matter  is  placed  in  the 
Supplement  where  it  would  have  been  placed  in  the  original  work  if  it  had  been 
then  available  and  the  notes  for  such  new  matter  are  distinguished  by  the  ad- 
dition of  letters.  Thus  3 4- 7a  indicates  that  new  matter  has  been  inserted  on 
page  34  between  notes  7  and  8.  In  the  Supplement  the  analysis  of  the  original 
work  has  been  preserved. 


TABLES  OF  TITLES  AND  WORDS  AND  PHRASES. 


I.  TITLES. 


Italics   indicate   cross-references. 


Abandoned   and    Captnred    Property,    1. 

Abatement,  1. 

Abatement,    Revival  axd    Survival,    1. 

Abduction  and  Kidnapping,  ?,. 

Abiding   the  Event,   3. 

Abode,   3. 

Abolition,  3. 

Absconding,  4. 

Absentees,  4. 

Abutting  Ozcners,  i. 

(Accession.  Accretion  and  Reliction,  4. 

Accident  Insurance,   5. 

Accommodation  Paper,  o. 

Accomplices  and  Accessories,  5. 

Accord  and  Satisfaction,  5. 

Accounting,  5. 

Accounts  and  Accounting,  6. 

Accretion,   6. 

Accrual  of  Action.   6. 

Accrued  Interest,  6. 

Accusation,  6. 

Acknozvledge,  6. 

Acknowledgments,  7. 

Acquiescence,   7. 

Acquit,   7. 

Action    of  Deceit,   7. 

Actions,  7. 

Act  of  God,  8. 

Acts  of  Bankruptcy,   8. 

Act  of  Congress,   8. 

Actual  Controversy.   8. 

Additional  Costs,  8. 

Additional  Punishment,  8. 

Additional  Security  on  Appeal,  8. 

Additional  Servitude,   8. 

Adequate  Remedy  at  Lazv,  8. 

Adjoining  Landozvners,   8. 

Adjourned  Session,  8. 

Adjournments,  9. 

Adjudication,  9. 

Administration.   9. 

Administrators,   9. 

Administratrix,  9. 

Admiralty.   10. 

Admissions,    14. 

Admissions  in  Evidence,   14. 

Admissions  in  Pleading,  14. 

Adultery,  Fornication  and  Lewdness,   15. 

Advancements,   15. 

Adverse   Interest,    15. 

Adverse  Possession,  15. 

Affidavits,  16. 

Affirmance,    16. 

Affreightment.  16. 

Against  the  State,  16. 

^4^(7»cv,   16. 

Aggregation,   16. 


Aggrieved  Party,  16. 
Agistment,  16. 
Agreed  Case,  17. 
Agreement,   17. 
Alcoholic  Liquors,   17. 
Aliens,   18. 
Alimony,   25. 

Allegata  and  Probata,   25. 
Allegiance,  25. 
Allotment,  25. 
Allozvance,  25. 
Alluvion,   25. 

Alteration  of  Instruments,  25. 
Alternative   JVrits,  25. 
Ambassadors  and  Consuls,  25. 
Ambiguity,   25. 
Amendments,  26. 
Americans,   26. 
Amicus    Curia,    26. 
Amount  in  Controversy,  27. 
Ancestor,  27. 
Anchored  Vessels,  27. 
Ancient  Documents,  27. 
Ancillary  Jurisdiction,  27. 
Animals.  27. 
Animals  Ferce  Naturce,  31. 
Annexation  of  Territory,  31. 
Annuity,  31. 

Another  Suit  Pending.  31. 
Anszver,  31. 
Anticipation,    31. 
Anti-Trust  Lazvs,   31. 
^/>^:t:,   33. 

Appeal  and  Error.  34. 
Appeal  Bonds,  143. 
Appearance  Bail,   143. 
Appearances,  144. 
Arbitrary   Classification,   147. 
Arbitration  and  Award,  148. 
Argentine    Confederation.    148. 
Argument  of  Counsel.  149. 
Army  and  Navy,  150. 
Arrest,  152. 
Arrestment,  152. 
Arrest   of  Judgment,   152. 
.4rf.y,    153. 

Assault  and  Battery,    153. 
^4.y.y^.f.y;nf;!/.y.  153. 
Assignments,  153. 

Assignments  for  Benefit  of  Creditors,  154. 
Assistance,    Writ  of,    154. 
Associations,    155. 
Assumpsit,  155. 
Assumption   of  Risks,  155. 
Attachment  and  Garnishment,  156. 
Attempts  and  Solicitations  to  Commit  Crime, 
157. 


VI 


TABLE  OF  TITLES. 


Attestation,    157. 
Attorney  and  Client,  158. 
Attorney  General,  160. 
Auctions  and  Auctioneers,  160. 
Audita   Querela,  160. 
Autrefois,  Acquit  and  Convict,  161. 
Avulsion,  165. 
Azvard,   165. 
Badges  of  Fraud,  165. 
Bail  and  Recognizance,  166. 
Bailments,   167. 
Bank  Bill— Bank  Kates,  167. 
Banker's  Lien,  167. 
Bank  Examiner,  167. 
Bank  Guaranty  Fund,  167. 
Bankruptcy,    168. 
Banks  and  Banking,  184. 
Barratry,   200. 
Bastardy,   201. 

Beneficial  and  Benevolent  Associations,  201. 
Beneficiaries,  201. 
Bequest,  201. 

Best  and  Secondary  Evidence,  202. 
Beyond  a  Reasonable  Doubt,  202. 
Bigamv  and  Polygamy,  202. 
Bill  of  Exceptions,  202. 
Bill  of  Exchange,  202. 
Bill  of  Lading,  202. 
Bill  of  Particulars,  202. 
Bill  oe  Review,  203. 
Bill  of  Revivor,  203. 
Bill  of  Rights,  203. 
Bill  of  Sale,  203. 
Bills,  Notes  and  Checks,  204. 
Bill   to   Quiet   Title,  205. 
Blasting  Powder,  205. 
Blockade,   205. 
Bloodstains,  205. 
Board  of  Directors,  205. 
Boats,  205. 
Bona  Fide,   205. 
5on^.y,   205. 

Bottomry  and  Respondentia,   205. 
Boundaries,  206. 
Bounties,  210. 

Boxing  and  Cutting   Timber,  210. 
Boycott,  210. 
Brakeman,  210. 
Branch   Road,   210. 
Branding,  210. 
Breach  of  Contract,  210. 
Breach  of  the  Peace,  211. 
Bribery,  211. 
Bridges,   211. 
5nV/.y,  212. 
Brokers,  212. 

Building  and  Loan  Associations,  214. 
Building   Contracts,   214. 
Building  Restrictions  and  Restrictive  Agree- 
ments, 214. 
Burden  of  Proof,   214. 
Cfl//j,  214. 
Canals.  214. 
Cancellation,   214. 
Capture,  215. 
Carriers,   216. 

Car  Trust  Associations,  227. 
Cn.r<'  Agreed,  227. 
Caj^  Certified,  227.  i 


CoJ^  5;a/^rf,  227. 

Cashier,   227. 

Cause  of  Action,  227. 

Caveat— Caveator,  227. 

Ceded  Territory,  227. 

Cemeteries,   227. 

Certificate  of  Acknowledgment,  227. 

Certificate  of  Deposit,  227. 

Certificate  of  Division  of  Opinion,  227. 

Certificate  of  Stock,  228. 

Certified  Check,  228. 

Certified  Copies,  228. 

Certiorari,  228. 

Cession,  228. 

Challenge,   228. 

Chambers  and  Vacation,  228. 

Champerty  and  Maintenance,  228. 

Chancery^   228. 

Change  'of   Venue,   228. 

Charities,    229. 

Charter,  229. 

Charter  Party,  229. 

Chattel  Mortgages,   230. 

Checks,   231. 

Cherokee  Children,  232. 

Chinese  Exclusion  Acts,  232. 

Choctaw   Treaty,  234. 

C hoses    in   Action,   234.  ♦ 

Church,   234. 

Circumstantial  Evidence,  234. 

Citizenship,   235. 

Civil   Rights,   236. 

C/t'//   Service,    240. 

C/t'//    fi^ar,   240. 

Claims,  241. 

C/a.y.y  Legislation,  241. 

Clerks  of  Court,  241. 

C/2>H^    242. 

Closed  Season,   242. 

Cloud  on   Title,   242. 

Coa/  Lands,   242. 

Coc?^    Pleading,    242. 

Coemployees,    242. 

Co/«,   242. 

Collateral   Attack,    242. 

Collateral  Security,  242. 

Collections,    242. 

Colleges   and    Universities,    242. 

Collision.  243. 

Co/or  o/   Tj7/c,  244. 

Combinations,    244. 

Combinations  in  Restraint  of  Trade,  244. 

Comity,   244. 

Commercial    Agreements    and    Conventions, 

244. 
Commercial  Paper.  244. 
Commercial   Treaties,  244. 
Commitment   and   Preliminary   Examination 

of  Accused,   245. 
Common    Carriers,   245. 
Common  Law,  245. 
Common  Property,   246. 
Common   Stock,    246. 
Community  Estate,  246. 
Community  Property,  246. 
Commutation   of  Sentence,  246. 
Compacts,   246. 

Comparative  Negligence,   247. 
Compromise  and  Settlement,   247. 


TABLE  OF  TITLES. 


VII 


Comptroller    of    Currency,   247. 

Computation  of  Pay  of  Officers,  24:7. 

Concealment,  247. 

Conclusions    of  Law,   247. 

Concurrent   Jurisdiction,    247. 

Concurring    Xegligcnce,    247. 

Condemnation    of   Prise,   247. 

Condemnatio)i   of  Property,  247. 

Condemnation    Proceeding,    247. 

Conditional  Sales,    247. 

Conditions,   248. 

Confession    of  Judgment,   248. 

Confessions,    249. 

Confidential    Communications,    249. 

Confirmation    of   Land    Claims,    249. 

Confiscation  of  Property,  249. 

Conflicting    Jurisdiction,    249. 

Conflict  of  Laws,  250. 

Conformity  Act,   254. 

Confusion   of   Goods,   254. 

Congress,  254. 

Connecting  Carriers,  254. 

Conquered    Territory,    254. 

Conquest,    254. 

Consent  Judgments  and  Decrees,  255. 

Consideration,  255. 

Consignee,    255. 

Consolidation   of  Actions,   256. 

Conspiracy,   256. 

Constitution,   263. 

Constitutional   Law,   264. 

Construction,    366. 

Consuls,   366. 

Contemporaneous    Construction,    366. 

Contempt,   367. 

Contest,    371. 

Contingent  Remainder,  371. 

Continuances,  371. 

Contract   Labor   Law,   372. 

Contractors,    373. 

Contractor's  Bond,  373. 

Contracts,   373. 

Contracts    of    Affreightment,    375. 

Contracts  of  Guaranty,  375. 

Contracts    of   Hire,    375. 

Contribution    and    Exoneration,    375. 

Contributory    Negligence,    375. 

Conversion  and  Reconz'crsion,   376. 

Copies,   376. 

Copyright,  377. 

Coram  Nobis,   381. 

Cor^,   381. 

Coroners,  381. 

Corporation    Commission,    381. 

Corporations,   381. 

Corporation    Tax,    395. 

Costs,   396. 

Cotenants,    396. 

Counterclaim,  396. 

Counties,    397. 

Coin;  fo^"  397. 

Counts,    397. 

Coupons,    397. 

Court  of  Claims,  397. 

Court    of    Inquiry,    397. 

Courts,  398. 

Courts-Martial,    433. 

Covenant,  Action  of,  433. 

Covenants,    433. 


Coverture,  433. 

Cr£7rf!f,   433. 

Creditors'   Suits,    434. 

Crimes,   434. 

Criminal   Conspiracy,   434. 

Criminal  Law,  434. 

Cross    Bills.   453. 

Cr OSS-Examination,   454. 

Crossings,   454. 

O'ift?/  and    Unusual  Punishment,   455. 

Cuba,  455. 

Cuban  Laze,  455. 

Cumulative  Evidence,   455. 

C/n-^cjv,   455. 

Custodia    Legis,    455. 

Custody   of  Prisoner,  455. 

Custom  Duties,  455. 

Custom    Laws,    455. 

Customs,   455. 

Cutting   Timber   on    Public  Lands,   455. 

Damages,   455. 

Damnum   Absque    Injuria,    456. 

Dams,    456. 

Da/^,   456. 

Da/j   Work,   456. 

Dealing    in    Futures,    456. 

Death,   456. 

Death   by   Wrongful  Act,   456. 

D^flf/t  Dm/j',  457. 

Z?(?  Bonis  Non,  457. 

Debt.  The  Action  of,  457. 

!)£•&?.?,   458. 

D^i'/.y  o/  Decedents,  458. 

Decedents,  458. 

Deceit,    458. 

Decision,   458. 

Declaration,   459. 

Declarations  and  Admissions,   459. 

Decrees,  459. 

Decrees  Pro   Confesso,   459. 

Dedication,    459. 

Deeds,   459. 

Deeds   of   Trust,   459. 

D(?  Far^o   Corporations,  459. 

De  Facto  Officers,  460. 

F't'   Fac^o    Sovereign,   460. 

Defalcation,   460. 

Defa)nation,    460. 

Default,  460. 

Default  in  Pleading,  460. 

Default  Judgments,  460. 

Definitions,   460. 

Z?^   /j/re   Officers,   460. 

Dr/rtv.   460. 

Delaying  Creditors,  461. 

Delegation,    461. 

Delinquents,   461. 

Delivery,  461. 

Demand,    461. 

Demurrer   to   the   Evidence,   461. 

Demurrers,   461. 

Denial,   462. 

Deportation,    462. 

Deposit,   462. 

Depositions,  462. 

Depositor,   462. 

Deposito/s  Guaranty,  462. 

Depreciated  Currency,  462. 

Deputies,  462. 


VIII 


TABLE  OF  TITLES. 


Descent  and  Distribution,  463. 

Desertion,  463. 

Desert  Land,  463. 

Destruction,  463. 

Detinue,   463. 

Devise,   464. 

Diligence,    464. 

Diplomatic    and    Consular    Officers,    464. 

Directing    Verdict,    464. 

Directors,  464. 

Direct    Tax,   464. 

Disbursing  Officers  and  .Igents,  464. 

Discontinuance,    464. 

Discontinue,    464. 

Discount,    464. 

Discovery,  465. 

Discretional   Duties,   465. 

Discrimination,  465. 

Discrimination  on  Account  of  Color,  465. 

Dijc  Sound  Records,  465. 

Disfranchisement,   465. 

Dishonor,   465. 

DisMiss.\L,   Discontinu.\nce  and   Nonsuit, 

466. 
Dissolution,  467. 
Dissolution   of   Trusts,.  467. 
Distance,   467. 
Distiller's   Bond,   467. 
Distress,  467. 
Distribution,   467. 

District   and   Prosecuting    Attorneys,    467. 
District    Court,    467. 
District  of   Columbia,   46S. 
Diverse   Citizenship,   468. 
Divestiture  of  Jurisdiction,  468. 
Division    of    Opinion,   468. 
Division  of   Territory,   468. 
Divorce  and  Alimony,   468. 
Docket,   469. 

Documentary   Evidence,   469. 
Documents,  471. 
Domestic  Relations,  472. 
Domicile,   472. 
Dominion,  472. 
Double  Taxation,  472. 
Dower,    472. 
Dra/f,   472. 
Drainage,  472. 
Drains   and   Sewers,   472. 
Drawback,    474. 
Drawbridge,   474. 
Drawer,    474. 
Drummers,  474. 
Drunkenness,   474. 
Dm^?  Diligence,   474. 
Due  Process  of  Law,  475. 
Duress,  533. 
Duties  and  Imposts,  533. 
Dying  Declarations,  533. 
Easements,   534. 
£&t  fl»rf  F/ow,   534. 
Eight-Hour  Lazv,  534. 
Ejectment,   535. 
Ejusdeni  Generis,  535. 
Election  of  Remedies,   535. 
Elections,  535. 
Electricity,  536. 
Elements,  536. 
Embargo   and   Xonintercourse   Laws,    536. 


Embezzlement,   536. 

Emergency,   536. 

Emigration,   536. 

Eminent  Domain,   537. 

Employers  and  Employees,  549. 

Employers'  Liability  Act,  549. 

Endorsement,  549. 

Engrossing,  549. 

Enjoin,    549. 

Entirety,   Estates   by,   549. 

Entrymen,   549. 

Equal  Protection   of  Law',   549. 

Equitable  Defenses,  550. 

Equitable  Estate,  550. 

Equitable  Estoppel,   550. 

Equitable  Relief  against  Judgment,   550. 

Equitable    Set-Off,    550. 

Equity,   550. 

E,quity  of  Redemption,   552. 

Equivalents,    552. 

Error,  Writ  of,  552. 

Escape,    552. 

Escheat,    552. 

Escrozv,   553. 

Estate,  552. 

Estates,    552. 

Estates  of  Absentees,  552. 

Estates    of   Decedents,    552. 

Estoppel,  553. 

Estoppel  by  Record,  557. 

Estoppel  in  Pais,  557. 

Evidence,   558. 

Examination   of  Witnesses,  558. 

Exceptions  and  Objections,  558. 

Exceptions,    Bill    of,    and    Statement    of- 

Facts  on  Appeal,  559. 
Excessive  Damages,  562.  ' 

Excessive    Taxation,    562. 
Exchange,   Bill   of,   562. 
Exchange   of  Property,   562. 
Exchanges,    562. 
Excise   Tax,   562. 
Exclusive   Rights,    562. 
Excusable   Homicide,    562. 
Executed   Contracts,   562. 
Executed   Trusts,   562. 
Execution   against    the  Body   and   Arrest   in 

Civil  Cases,   562. 
Execution  and  Proof  of  Documents,  562. 
Execution    of    Wills,    522. 
Executions,  563. 

Executors  and  Administrators,   564. 
Executory  Interest,  568. 
Exemplification,  568. 
Exemptions,   568. 
Exoneration,  568. 
Expatriation,   568. 
Experiments  in  Evidence,   568. 
Expert  and  Opinion  Evidence,  569. 
Expert    Witnesses,   569. 
Explosions  and  Explosives,  569. 
Ha-  Po.yf  Fac^o  Laws,  570. 
Express  Companies,  570. 
Expressio    Unius,   570. 
Express  Alalice, '570. 
Express   Trust,   570. 
Extension,   570. 
Extortion,    570. 
£.r/ra   Allowance,   570. 


TABLE  OF  TITLES. 


IX 


Extra    Compensation,    570. 

Extradition,   571. 

Extraordinary  Remedies,   577. 

Extra  Pay,  577. 

Extraterritorial,   557. 

Factors  and  Commission   Merchants,   577. 

Failure  of  Comideration,  578. 

Faith,  578. 

Faith  and  Credit,   578. 

False    Entry,    578. 

False  Imprisonment,  578. 

/'"a/.s-c  Pretenses  and  Cheats,  578. 

/'o/.?L"   Representations,   578 

Falsification  of  Public  Documents,  578. 

Falsifying  Records,   578. 

Family  Settlements,  578. 

Favored   Nation    Clause,    578. 

Federal  Constitution,   578. 

Federal    Courts,    578. 

Federal    Employers'    Liability    Act,    578. 

Federal   Question,   578. 

/^^^.y  fl»rf  Emoluments,  579. 

Fellow  Serv.\nts,  579. 

Felony,  582. 

Feme  Covert  or  Feme  Sole,  582. 

Fence  Lazv.   582. 

Fences.   582. 

i^^rff  Naturcc,   582. 

Ferries,  582. 

Fidelity  and  Guaranty  Insurance,  582. 

F;VrJ  Facias,  582. 

Final  Judgments   or  Decrees,   583. 

Findings  of  Court,  583. 

Fines,  583. 

F/r^  Insurance,  583. 

f  iV^5,  583. 

Fish  and  Fisheries,  583. 

Fixtures,  583. 

f/a^,   583. 

F/a^   Lieut enani,   583. 

/^o/fo   Charge,   583. 

Foods  and  Drugs,   584. 

Forcible  Entry  and  Detainer,  584. 

Foreclosure,  584. 

Foreign   Commerce,  584. 

Foreign    Corpor.\tions,   584. 

Foreign  Executors  and  Administrators,  591. 

Foreign    Extradition,    591. 

Foreign  Judgments,  Records  and  Judicial 

Proceedings,  592. 
Foreign  Laws,  595. 
Foreign  Ministers,  596. 
Forest  Reserve.  596. 
Forfeiture,    596. 
Forged,  596. 

Forgery  and  Counterfeiting,  596. 
Former  Acquittal  and   Conviction,    596. 
Former  Recovery,   596. 
Forthcoming  and  Delivery  Bonds,   590. 
Fourteenth  Amendment,  597. 
Franchise,    597. 
Fraud  and  Deceit,  597. 
Frauds,  Statute  of,  600. 
Fraudulent  .\nd  Voluntary  Conveyances, 

600. 
Fraudulent  Representations,    604. 
Friend  of  the  Court,  604. 
Frivolous   Appeals,    604. 
Fugitive  from  Justice,   604. 


/^?(//   Cr^zc  .r^t-/,    604. 

Fh//  Fa;7A  fl«d   Credit  Clause,  604. 

Future  Earnings,   605. 

Gambling  Contracts,   605. 

Game  and  Game  L.-\ws,  605. 

Gaining,  607. 

Garnishment,  607. 

Gas,  607. 

General  Agent,  607. 

General   Appearance,   607. 

General  Average,  608. 

General   Custom,   608. 

General  Deposit,   608. 

Giyf.y,  608. 

GooJ  FojV/!,  608. 

Goo(/   fF///,   608. 

Government,   608. 

Governor,  608. 

Grand  Jury,  309. 

Grantee,   611. 

Grants,    611. 

Grants  for  Parks,  611. 

Grants  in  Prcesenti,  611. 

Gross  Negligence,  611. 

Ground  Rents,   611. 

Guaranty,   611. 

Guaranty  Insurance,   611. 

Guardian  Ad  Litem,  611. 

Guardian  and  Ward,  611. 

Habeas    Corpus,    612. 

Habitual  Criminals,  617. 

Handzvriting,  617. 

Harmless  Error,    617. 

Harter  Act,  617. 

Hawkers  and  Peddlers,  617. 

Heads  of  Departments,  617. 

Health,   617. 

Hearing,  617. 

Hearsay   Evidence,   618. 

//(?/r,   Heirs  and   the  Like,   618. 

Highivaxs,   618. 

HiV^,  618. 

Homestead,    618. 

Homestead  Claim.   019. 

Homestead  Exemptions,  619. 

Homestead  Law,  019. 

Homicide,  619. 

Hospitals  and  Asylums,  619. 

Husband  and  Wife,  620. 

/Jr;/t   Sonans,   621. 

Identical,  621. 

Identification,  G21. 

Identity,    621. 

Identity  of  Parties,  621. 

I  dent  it  V  of  Suits,  621. 

Mo/.y,'022. 

Illegal  Contracts.  022. 

////ViV    Gratuities— Graft,    622. 

Immigration,   023. 

Immunity,    623. 

Immunity  from  Suit,  023. 

Inununity    from    Trial,    623. 

Impairment   of   Obmg.\tion   of   Contracts, 

624. 
Impeachment,   639. 
Impeachment  of   Witness,   639.- 
Implied    Contracts.    639. 
Implied  Trusts,  639. 
Implied    Warranty,   639. 


TABLE  OF  TITLES. 


Imports — Imported,  639. 

Impost,    639. 

Imprisonment  for  Debt,   639. 

Improvements,    640. 

Imputable  Negligence,  640. 

Imputed   Knozvledge,    640. 

Inadequate   Consideration,   640. 

Incidental  and  Implied  Pozvers,  640. 

Income   Tax,  640. 

Incorporation,    640. 

In   Cnstodia   Lcgis,   641. 

Indemnity,  641. 

Indemnity  Lands,   641. 

Indemnity  Limit,   641. 

Independent  Contractors,  641. 

Index,  641. 

Indian  Agent,  641. 

Indian   Commerce,  641. 

Indian  Country,  641. 

Indian  Depredation  Act,  641. 

Indian   Lands,    641. 

Indians,  641. 

Indictments,  Informations,  Presentments 

AND  Complaints,  652. 
Indorsements,    655. 
Indorser,  655. 
Infants,  655. 
Inferior   Courts,   656. 
Informations,    656. 
Informers,   656. 
Infringement,  656. 
Inhabitant,  656. 
Inheritance    Tax,    656. 
Initials,  656. 

Initiative  and  Referendum,  656. 
Injunctions,  657. 
Innocent  Purchaser,   668. 
/n«j  ajid  Innkeepers,  668. 
/»  Pari  Materia,   668. 
Inquests  and  Inquiries,  668. 
Insanity,   669. 
Inscription,   669. 
Insolvency,  669. 

Inspection    and   Physical   Examination,    669. 
Inspection   Laws,   670. 
Inspection  of  Ships,  672. 
Instructions,   672. 
Insurable  Interest,  673. 
Insurance,  674. 
Insurance  Adjusters,  685. 
Insurrection,  685. 
Intent,   685. 
Interest,  685. 

Interlocutory  Injunction,  686. 
Interlocutoiry  Judgments,  etc.,  686. 
Infernal   Commerce,   686. 
Internal  Revenue,   686. 
Internal  Revenue  License,  686. 
International  Law,   686. 
Interpleader,  687. 

Interpretation    and    Construction,    688. 
Interpreters,  689. 
Interrogatories,  689. 

Interstate  and  Foreign  Commerce,  689. 
Interstate  Extradition,  803. 
Intervention,  803. 
Intestate,  803. 

Intoxicating  Liquors,  803. 
Invention,  805. 


Inventory,   805. 

Irreparable  Injury,  805. 

Irrigation,  805. 

Irrigation  Corporation,  805. 

Islands,  805. 

Issue,   805. 

Issues  to  Jury,  805. 

Jeopardy,  805. 

Joinder,   805. 

Joinder  of  Parties,  805. 

/o/«f  Stock  Companies,  805. 

Joint  Tenants  and  Tenants  in  Co.mmon, 

806. 
Journal  Entries,  806. 
Judges,  806. 

Judgments  and  Decrees,  807. 
Judicial  Admissions,  810. 
Judcial  Notice,  810. 
Judicial  Records,  811. 
Judicial  Sales,  812. 
Judiciary  Act,  812. 
Jurisdiction,  812. 
Jurisdictional  Facts,  813. 
/wror,  813. 
Jury,  813. 

/M.yto  Prescription,  815. 
Justice,  Department  of,  815. 
Justices  of  the  Peace,  815. 
Justifiable  Homicide,  815. 
/j<j/o   Titulo,  815. 
Knowledge,  815. 
Labor,  816. 

Labor  Combinations,  817. 
Laches,  818. 
Z,(7/e^.y,  820. 

La»d  Department,   820. 
Landlord  and  Tenant,  820. 
Landlord's  Lien,   822. 
Landmarks,  822. 
/,a«(/   Oj^f<?,   822. 
Z.a»rf  Officers,  822. 
Z-(nic?  Patents,   822. 
Larceny,  822. 
Z,flj/  C/car  Chance,  822. 
Lateral  or  Branch  Roads,  822. 
Law  Merchant,  822. 
Lazy  o/  Nations,   822. 
Law  o/  //!£?   Ca.r^,  822. 
Law  o/  //!^  i?oac?,  822. 
Lawyer,  822. 
Laying   Venue,   822. 
Lav    Witness,   822. 
Legacy,  822. 

Legal  Conclusions,  822. 
L^-ga/  Representative,  823. 
Legatees  and  Distributees,  823. 
Legislative,   823. 
Legislative  Board,  823. 
Legitimation.  823. 
Lessor  and  Lessee,  823. 
Letters,  823. 

Letters  of  Administration,  823. 
Letters  of  Attorney,  823. 
Letters    of   Credit,    823. 
Letters  Patent,  823. 
Levees,  823. 
Lt'^x   823. 
Lr.r  Domicilii,   823. 
L«?.t-  for;,  823. 


TABLE  OF  TITLES. 


XI 


Lex  Loci  Contractus,  823. 

Lex  Loci  Rei  Sita,  823. 

Libel  and  Slander,  824. 

Libel  in  Admiralty,  826. 

Liberty,  826. 

Liberty   of   Contract,   826. 

License   (Real  Property),  826. 

Licenses,  826. 

Liens,  828. 

Lieu   Lands,   828. 

Life  Boats  and  Raffs,   828. 

Life  Insurance,  828. 

Limitation  of  Actions  and  adverse  Pos- 
session, 828. 

Limitation  of  Liability,  834. 

Limited  Liability  Act',  834. 

Liquors,  834. 

Lis  Pendens,    834. 

Live  Animals,  835. 

Live  Stock,  835. 

Loan  and  Discount,  835. 

Loans,   835. 

Loan,  Trust  and  Safe  Deposit  Companies, 
835. 

Locator,  835. 

Lo(f^  Mining,  835. 

Log.?  anrf  Logging,  835. 

Lookout,  835. 

1,05^  Instruments  and  Records,  835. 

Lotteries,  836. 

Low  Water,  836. 

.l/aiV.   837. 

Malice.  837. 

Malicious  Mischief,  837. 

Malicious  Prosecution,  837. 

Mandamus,  838. 

Mandate   and    Proceedings    Thereon,    846. 

Manslaughter,  849. 

Manuscript,  851. 

Marine  Insurance,   851. 

Mariners,  851. 

Marine  Torts,  851. 

Marital  Rights,  851. 

Maritime  Liens,  851. 

Maritime  Torts,  851. 

Market,  851. 

Marriage,   851. 

Marriage  Contracts  and  Settlements,   851. 

Married  Women,  851. 

Marshaling  Assets  and  Securities,  851. 

Marital  Law,   851. 

Master  and  Servant.  851. 

Masters  in  Chancery,  861. 

Masters  of  Vessels,  861. 

AL'VXiMS,   861. 

Afrfl.s-jn-r  o/  Damages,  861. 

Mechanical  Equivalents,  861. 

Mechanics'  Liens,   861. 

Merger,  862. 

Metes  and  Bounds,   862. 

Military    Courts,    862. 

Military  Law,  862. 

Military  Officers,  864. 

Militarx    Tribunals,   864. 

Militia",  864. 

71////.?  fl»c?  Milldams,  864. 

Mineral  Lands,  865. 

Minerals,  865. 

Mines  and  Minerals,  865. 


Mitiisterial,  873. 

Ministerial  Action,  873. 

Ministerial  Duties,   873. 

Minors,  873. 

Minute  Entries,  873. 

Misapplication  of  Funds,  873. 

Misbranding  Goods,  873. 

Misdemeanor,   873. 

Misjoinder  of  Actions,  873. 

Misjoinder  of  Parties,  873. 

Misrepresen tation,  873. 

Mistake  and  Accident,  873. 

Misuser,  873. 

Mixed  Jury,  874. 

Monopolies  and  Corporate  Trusts,  874. 

Monuments,   891. 

AIortgages  and  Deeds  of  Trust,  891. 

Motions  and  Summary  Proceedings,  893. 

Moving  Pictures,  893. 

Multifariousness,  893. 

Multiplicity  of  Suits,  894. 

Municipal  Bonds,   895. 

Municipal  Corporations,  895. 

Municipal,    Count\,   State   and  Federal  Aid, 

905. 
Municipal,    County,    State    and    Federal 

Securities,  906. 
Municipal  Courts,  910. 
Municipal   Officers,  910. 
Municipal  Ordinances,  910. 
Municipal   Taxation,  910. 
Murder,  910. 

Mutual  Insurance,  910. 
Mutuality,  911. 
Names,    911. 
National  Banks,   911. 
Native-Born   Citizen,   911. 
Natural  Gas,  911. 
Naturalization,  911. 
Naval  Officers,  913. 
Naval  Service,  913. 
Navigable  Waters,  914. 
Navigation,  920. 
A'ot'j,  920. 
-V(?   Exeat,    920. 
Neglect,  920. 
Negligence,  920. 
Negotiable   Paper,    923. 
A>groc.y,  923. 
Neutrality,    923. 

N ewly-Discovered  Evidence,   923. 
Nezvspapers,  923. 
New  Trial,  923. 
Ninety-Fourth  Equity  Rule,  924. 
Nominal  Party,  924. 
Nonjoinder,  924. 
Non-Maritime   Torts,  924. 
Nonsuit,  924. 
Nonuser,  924. 
Notary  Public,  924. 
Notes,    924. 
Notice,   924. 

Notice  of  Pendency,  924. 
Novation,  924. 
Novelty,  924. 
Nuisances,  924. 
Ort//z,   924. 
OfeZ/cr  D/c/a,   924. 
Obstructing  Justice,   924. 


XII 


TABLE  OF  TITLES. 


Occupation    Tax.   924. 
Offenses   against    Civil   Service,   924. 
Officers,  924. 

Officers  and  Agents  of  Private  Corpora- 
tions, 925. 
Oil,  927. 

Once  in  Jeopardy,  927. 
Onus  Probandi,  927. 
Open  and  Close,  927. 
Opening  Judgments,  927. 
Opinion  Evidence,  927. 
Opinions  of  Courts,  927. 
Orders  of  Court,  927. 
Ordinances,  928. 
Ordinary  Care,   928. 
Ordinary  Negligence,  928. 
Ore,  928. 

Oregon   Donation  Act,   928. 
Organic  Lazv,  928. 
Organized   Labor,   928. 
Original  Bill,  928. 
Original  Jurisdiction,  928. 
Outlazvry,  930. 
Overflozved  Lands,  930. 
Oysters,   930. 
Fa/m  Oj7,  930. 
Paw^/,   930. 
Pardon,  930. 
Par£?;jf  a»rf  C/n/rf,  930. 
Pari  Delicto,  931. 
Par^.j,    931. 
Paroi,  Evidence,  931. 
Parties,   932. 

Parties  by  Representation,  933. 
Partition^  933. 
Partnership,  933. 
Part  Ozvners,  935. 
Farfy   Walls,  935. 
Pa.y.y  5oo^,  935. 
Passenger,   935. 
Pasturage,   935. 
Patents,  936. 
Patent  to  Land,  945. 
Paupers,   945. 
Pawn,   945. 
Paj,   945. 
Payment,  945. 
Pavment  into  Court,  945. 
Peddler,   945. 
Pedigree,  945. 

Penalties    and   Forfeitures,    945. 
Pendente  Lite,  946. 
Pensions,  946. 
Peremptory  Instruction,  947. 
Perjury,  948. 
Perpetuities,  948. 
Personal  Actions,  949. 
Personal  Property.  949. 
Personal  Service,  949. 
Petition,  949. 
Philippine  Islands,  949. 
Photographs,   949. 
Physicians  and  Surc.eons,  949. 
Pilots,   950. 
Fm^  LoMt?,  953. 
Piracy,  953. 
Place  of  Trial,  953. 
Placer  Mines,  953. 
Pleading,  953. 


P/ra  in  Abatement,  953. 

Pledge  and  Collateral  Security,  954. 

Police  Power,  955. 

Policy  of  Insurance,  995. 

Political   Contributions,   995. 

Por/o  i?/co,  995. 

Possession,  995. 

Possession,    Writ    of,    995. 

Postal  Laws,  996. 

Postmaster  General,  998. 

Po.f^  Roads,  998. 

Pozver  of  Attorney,  998. 

Powers,   998. 

Practice  Conformity  Act,  999. 

Practice  of  Lazu,  999. 

Prc-Emption,   999. 

Preference,  999. 

Preferential  Transfer,  999. 

Premature  Suits,  999. 

Prescription,  999. 

Presentment,  1000. 

President  of  the  United  States,  1000. 

Presumptio  Juris,  1000. 

Presumption   of  Innocence,   1000. 

Presumptions  and  Burden  of  Proof,  1000,. 

Prima  Facie,   1001. 

Primary  Evidence,   1001. 

Primary  Limits,   1001. 

Principal  and  Agent,  1001. 

Principal  and  Surety,   1003. 

Priorities,  1005. 

Prisons  and  Prisoners,  1005. 

Private  Corporations,   1005. 

Private  Entries,  1005. 

Private  Land  Claims,  1005. 

Private  Ways,  1005. 

Private  Wharves,  1005. 

Privilege,  1006. 

Privileged  Communications,  1006. 

Privileges  and  Immunities,  1007. 

Prize,   1007. 

Probable  Cause,   1007. 

Probate,  1007. 

Probate   Court,   1007. 

Probate  of   Wills,  1007. 

Probate  Proceedings,   1008. 

Process,   1008. 

Pro  Confesso.  1008. 

Production  of  Documents,  1008. 

Profert  and  Oyer,  1010. 

Prohibition,  1010. 

Promissory  Notes,   1010. 

Proprietor,   1011. 

Protest,  1011. 

Provable    Claims   and   Debts,   1011. 

Province  of  Court  and  Jury,   1011. 

Proving   a    Will,    1011. 

Provisional  Courts.   1011. 

Proximate  Cause,  1011. 

Publication  of  Libel.  1011. 

Public  Documents,   1011. 

Public  Domain,  1011. 

Pj(fo/jc  Health,  1011. 

Public  Improvements,    1011. 

Public  Lands,  1012. 

Public  Ministers,   1035. 

Public  Officers,  1035. 

Pj<fo/;V    Parks,    1039. 

P»&//c   Policv,   1039. 


TABLE  OF  TITLES. 


XIIJ 


Public   Schools,    1039. 

Public  Service,  1039. 

Public  Service  Commission,   1039. 

Public  Service   Corporations,    1039. 

Public   Waters,   1039. 

Purchasers,   1040. 

Pure  Food  Lazv,   1040. 

Quarantine,    1040. 

Questions  of  Law  and  Fact,  1040. 

Quieting    Title,    1040. 

Quo  Warranto,  1044. 

Railroad  Commission,   1046. 

Railroad  Land  Grants,  104G. 

Railroad  Pools,  1046. 

Railroads,   1046. 

Railzvav  Mail  Service,   1049. 

Raikva\!  Postal  Clerks.  1049. 

Rank,  1049. 

i^a/T,  1049. 

Rate  of  hiterest,  1049. 

i^^a/    Actions,    1049. 

i?ra/  Property,  1049. 

Reasonable   Care   and   Prudence,   1049. 

Reasonable    Certainty,   1049. 

Reasonable  Compensation,  1049. 

Reasonable   Doubt,    1049. 

Reason,  Rule  of,  1049. 

Rebates,   1049. 

Recaption,  1049. 

Receipts,  1049. 

Receiver   General,    1049. 

Receivers.  1050. 

Receiving  Stolen  Goods,  1052. 

Reciprocity   Treaties,  1052. 

Recitals,   1052. 

Reclamation,   1052. 

Recognizance,  1052. 

Recordation,  1052. 

Recording   Acts,   1052. 

Records,  1054. 

Recoupment,    1054. 

Redelivery  Bond,   1054. 

Referee,    1054. 

Reference,  1054. 

Referendum,   1054. 

Rehearing,   1055. 

Relation,    1055. 

Release,  i055. 

Relevancy,   1055. 

Relief  against  Judgment,  1055. 

Religious  Liberty,  1055. 

Religious  Societies.  1055. 

Remainders,  Reversions  and  Executory 
Interests,  1057. 

Remand.  1057. 

Remittitur,  1057. 

Removal  of  Causes,  1058. 

Rendition   of  Judgment,  1063. 

/?rnf,   1063. 

Repeal   of  Statutes,    1063. 

Replacement.   1063. 

Replevin,    1063. 

Replevin  Bond,  1064. 

Reports  and  Reporters,   1064. 

Representations,    1064. 

Reprieves,  1064. 

Requisition,  1064. 

Res  Adjudicata,  1065. 

Rescission,  Cancellation  and  Reforma- 
tion,  1069. 


Rescissory  Actions,   1069. 

Reservation,  1069. 

i^cj   G^j/ff,    1070. 

Residence,   1070. 

Residuary  Clause,  1070. 

Residuary   Interest,   1070. 

7?r.y    //'.ya    Loquitur,    1070. 

i?r.f   Judicata,    1070. 

Restitution,  1070. 

Restraining  Orders,  1070. 

Restraint  of  Trade,  1070. 

Restraint  on  Alienation,  1070. 

Return,   1070. 

Return  Nihil,  1070. 

''Return  on  Process,  1070. 

Revenue  Laws,  1071. 

Reversible   Error,   1084. 

Reversions,    1084. 

Review,   1084. 

Revival,   1084. 

Revocation,    1084. 

Rewards,    1084. 

i^/g/!^  p/  Contract,  1084. 

Right  of  Eminent  Domain,  1084. 

/?;;?/rf    of   £«/rv,    1084. 

/?;>/!?   o/  Fishery,    1084. 

Riparian    Ozuners,    1084. 

Riparian  Rights,  1084. 

/?rcrr.y,    1084. 

7?oad.y,   1084. 

Robbery,  1084. 

Roman   Catholic  Church,  1084. 

7?;//c   /»   Shelley's   Case,  1085. 

/^m/c  o/  Reason,  1085. 

Rules  of  Court,  1085. 

.Sac  a»(i  Fo;ir  Annuities,  1085. 

Sacrifice,   1085. 

5a/^^v  Appliance  Act,  1085. 

Sailing    Vessels,   1085. 

Sailors,  1085. 

.^a/^  o/  Land,  1085. 

Sales,  1086. 

.^a/mc   Lands,  1088. 

Salvage,   1088. 

S'ajne  Offense,  1089. 

Satisfaction,   1089. 

Savings  Banks,  1089. 

Schedule.    1089. 

.S'c/too/  A<nrf.y,  1089. 

School  Grants.  1089. 

Schools  and  School  Districts,  1089. 

.Vctrr  Facias,  1089. 

5"c;-fl/',   1089. 

.S'^'a.    1089. 

.S"c(7/.f  a»cf  Sealed  Instruments,  1090. 

Seamen,  1090. 

Searches  and  Seizures,   1090. 

5^a   Service,  1092. 

Seazvgrthiness,  1092. 

Secondary   Evidence,    1092. 

Secretary  of  Interior,  1092. 

Sectarian   School  Appropriations,    1092. 

Section,  1092. 

Securitv  for  Costs.  1092. 

Self-Defense,  1092. 

Self-incrimination,  1093. 

Semaphores,    1093. 

Sentence  and  Punishment,   1093. 

Separable  Controversy,  1094. 

Separate   Coiches.   1094. 


XIV 


TABLE  OF  TITLES. 


Separate  Estate  of  Married  Women,  1094. 

Separate  School,   1094. 

Separate  Trials,  1094. 

Sequestration,  1094. 

Service  of  Process,  1094. 

Session,  1094. 

Set-Off,    Recoupment   and    Counterclaim, 

1094. 
Settlement  of  Decedents'  Estates,   1095. 
Shares  of  Stock,  1095. 
Shelley's  Case   (Rule  in),  io95. 
Sheriffs  and  Constables,  1096. 
Sheriffs',    Constables'    and    Marshals'    Sales, 

1096. 
Sherman  Antitrust  Act,  1096. 
Ships  and  Shipping,  1096. 
Ship  Subsidy  Money,  1108. 
Shore,   1108. 
Sidezvalks,   1108. 
Signals,  1108. 
Silence,    1108. 
5"//!^.?,  1108. 

Slavery  and  Involuntary  Servitude,  1108. 
Soliciting  Political   Contributions,   1110. 
Sovereignty,  1110. 
Spanish  Grants,  1110. 
Spanish  Lazv,   1110. 
Spanish  Officials,  1110. 
Special  Appearance,  1110. 
Special  Assessments,  1110. 
Special  Interrogatories,   1113. 
Special  Master,  1113. 
Special   Privileges,    1113. 
Specific  Performance,  1114. 
Speed,   1115. 

Spendthrifts   and   Spendthrift    Trusts,    1115. 
Spirits,   Wines  and  Beverages,  1115. 
Spirituous  Liquors,  1115. 
Sponges,  1115. 
.S'/fl/^  Demand,  1115. 
Stamp   Tax,  1115. 
Stare  Decisis,   1115. 
5"fa/<?   Lands,    1116. 
Statement    of   Facts,    1116. 
5'/af^   Officers,  1116. 
States,  1117. 
5/af^    Taxation,    1122. 
Statute   of  Elizabeth,   1122. 
Statute  of  Frauds,  1122. 
Statute   of  Limitations,   1122. 
Statute  of  Uses,  1122. 
Statutes.  1122. 
5/av  5o«(f,  1134. 
^fa^v   Law.    1134. 
.S'^ov  o/  Proceedings,   1134. 
Steam,   1134. 
Stipulations,   1134. 
vS'foc^,    1135. 

Stock  and  Stockholders,  1135. 
5"/oc^   Grazing,  1145. 
Stockholders,    1145. 
Stockyards,   1145. 
5/o»^  La;i(f,  1145. 
Stoppage  in  Transit,  1145. 
Streams,  1145. 
Street   Railways,   1145. 
Streets   and  Highzvays,   1148. 
Striking  Out  Evidence,  1148. 
Subletting,  1148. 


Submission    of   Controversy,    1148. 

Submission   to   Arbitration,   1148. 

Subornation   of  Perjury,  1148. 

Subpwna,  1148. 

Subpcena  Duces  Tecum,   1148. 

Subrogation,  1148. 

Substitution,   1149. 

Succession,  1149. 

Succession  Taxes,  1149. 

Suicide,  1150. 

5zH>,  1150. 

5ji27.y   against    United  States,    1150. 

5!n7.s-  /or  Accounting,   1150 

Summary  Proceeding,  1150. 

Summary   Seizure,    1150. 

Summons  and   Process,   1151. 

Sundays  and  Holidays,   1154. 

Supersedeas  and  Stay  of  Proceedings,  1154. 

Supplemental  Bill,  1155. 

Supreme    Court,    1155. 

Sureties,    1155. 

Suretyship,    1155. 

Surface   Boundaries,    1155. 

Surgeons,  1155. 

5»rt'^j,  1155. 

Survival  of  Actions,  1155. 

Survivor,  1155. 

Suspension,  1155. 

Szxjanip    and    OvcriiozL'ed    Lands,    1155. 

Szvearing,  1155. 

Talesmen,    1155. 

Ta  ;-/■#,    1155. 

Taxation,   1156. 

Taxation  of  Costs,  1195. 

Ta.r  Collector,  1195. 

TflA-  D^^c?,   1196. 

TcfA-cy,    1196. 

Ta.r  Lct/j,  1196. 

Tff.r  5a /^,   1196. 

Telegrams,  1196. 

Telegraphs    and    Telephones,    1196. 

Telephones,    1200. 

Temporary  Injunction,   1200. 

Tenant,  1200. 

Tenants  in   Coj>iinon,   1200. 

Tc/irf,   1200. 

Tender,   1201. 

Ten-Hour  Labor  Lazv,  1201, 

Terminal  Facilities,   1201. 

r^ir;;?  <?/  Court,  1201. 

Trrj;?   o/   Officer,^  1201. 

Territorial  Courts,  1201. 

Territorial    Government,    1201. 

Territorial  Jurisdiction,   1201. 

Territories.   1201. 

Testamentary    Capacity,    1202. 

Testators'   Estates,    1202. 

Testimony,    1202. 

Ticket  Brokers,  1202. 

Tickets,   1202. 

Tirfa/    Waters,    1203. 

Tic?£?    Lands,    1203. 

Timber,    1203. 

Timber   Land,   1203. 

Tf;;;^,   1203. 

Tobacco,    1203. 

Tollroads  and    Turnpikes,   1203. 

To    Monopolize,    1203. 

Tonnage    Duties,    1203. 


TABLE  OF  TITLES. 


XV 


Torts,    1203. 

Towage,  Tugs  and  Tozcs.  1203. 

Towns  and   Townships,    1203. 

Toii'n  Site,  1203. 

Trade— Trading— Trader,    1203. 

Trade   Cotnbinations,   1203. 

Trademarks,      Tradenames     axd     Unfair 

Competition,    1203. 
Trading  Stamps,   1207. 
Traffic  Contracts,   1207. 
Transcript,   1207. 
Transfer,   1207. 
Transfer  Tax,  1207. 
Transitory   Action,    1207. 
Treason,   1207. 
Treaties,  1208. 
Trees  and  Timber.  1211. 
Trespass,   1211. 
Trespassers,    1211. 
Trespass   to   Try    Title,   1211. 
Trial,  1211. 
Trm/  fc3>  /mo'.  1211. 
rrifli  !?£•  Novo,   1211. 
rWfcfli   Citizenship,  1211. 
Tribal   Government,   1211. 
Tn^a/  Property,    1211. 
Trover  and   Conversion.   1212. 
Tnaf  Z)r<?rf.y,  1212. 
Trustee,   1212. 

Trusts  and  Trustees,  1212. 
Turnpikes  and  Tollroads,  1215. 
Twice  in  Jeopardy,  1215. 
Ultra    Vires,   12li. 
Unavoidable   Accident,   1215. 
Underzvriters,   1215. 
Undue  Influence,  1215. 
Undue  Restraint  of  Trade.   1215. 
Unfair  Competition,   1216. 
Uniform   Taxation,  1216. 
United    States.   1216. 
United  States  Commissioners,  1223. 
United  States   Courts,   1223. 
United  States  Marshals,   1223. 
University   Grants,'  1223. 
University  Lands,  1223. 
Unlawful   Use   of  Mails,   1223. 
Unmixed   Jury,    1223. 
L^/>ow    Condition,    1223. 
Usages  and  Customs,  1224. 
^'.jMrv,   1224. 
Vaca'nt  Lands,  1224. 
Vacation,   1224. 


Validation   of  Land   Claims,   1224. 

Variance,   1224. 

Venditioni  Exponas,  1225. 

Vendor  and  Purchaser,  1225. 

Vendor's  Liens,  1226. 

Venire   Facias,    1226. 

Venue,  1226. 

Verbal   Agreements,    1229. 

Verbal    Contracts,    1229. 

Verdict,   1229. 

Vessel,  1231. 

Vested  Renminders,   1231. 

Fe.yfrrf  Rights,  1231. 

Vexatious   Litigation,   1231. 

J'oluntary   Bankruptcy,    1231. 

J'oluntary  Confessions,  1231. 

J'oluntary    Conveyances,    1231. 

Voting   Trusts,   1231. 

Fojog£?5,   1231. 

Waiver  and  Abandonment,  1231. 

War,  1232. 

fFarrf,   1233. 

Warehouses  and   Warehousemen,   1233. 

Warrants,  1233. 

Warranty,   1233. 

ff'or  Revenue  Act,  1233. 

fFa.yfe,   1233. 

Waste-Wasting,   1233. 

Water  Commissioners,  1233. 

Water  Companies  and  Waterworks,  1233. 

Watercourse,  1236. 

PFa^er  i?(7H/.y,   1236. 

Waters    and    Watercourses,    1237. 

Waterworks,   1239. 

f-Faj'.y,  1239. 

Weapons,   1239. 

Weights  and  Measures,  1239. 

Whar\-es  and  Wharfingers.  1240. 

White  Sla*\-e  Traffic,  1240. 

Wholesale,    1240. 

Widow's  Commuiiitv,  1240. 

Wills,  1241. 

Witnesses,    1243. 

Women  Employees,  1245. 

Working  Contracts,  1246. 

f^^or^5  o/  /4;-f,   1261. 

Wrecks,  1261. 

PFWf  of  G^o   Warranto,  1261. 

H^n^  o"/  i?!>/;/^,  1261. 

PFrj7.y,   1261. 

Written   Contracts.    1261. 

Wyandotte   Cession,   1261. 


II.  \\ORDS  AND  PHRASES. 


Italics   indicate   cross-references. 


ABAXDONMnxT.     1. 

About,  3. 

Abrogate,  4. 

Accounts  Receivable,  6. 

Adequate   Facilities,   8. 

Administrati\'E,   9. 

Adulteration,    14. 

After.  16. 

Aid,  17. 

All,  25. 

Among,   26. 

Annul.   31. 

Another  Country.  31. 

Any,   32. 

Anything  Else,  33. 

Apparatus,  33. 

Appraisement.  147. 

Appropriate,   147. 

Arise,    149. 

Arraign,   1.52. 

Article,    152. 

Artificial  Coloration,  152. 

Assigns,  154. 

At,   155. 

Between,  202. 

Bookkeeping.   205. 

Booty  of  War,  205. 

Braids,  210. 

Bringing,  212. 

Brought,  214. 

Business,   214. 

Calculated,  214. 

Capital — Capital    Stock.    214. 

Capital   Crime.  215. 

Carbonate  of  Lead,  215. 

Carried  Out,  215. 

Case,  227. 

Channel,   228. 

Charge,  229. 

Chartreuse,  229. 

Child — Children.  232. 

Ciz'il  Action,  Case,  Suit,   etc.,  235. 

Civil  Officers.  235. 

Claim,  240. 

Combination,   244. 

Commerce,    244. 

Commodity,  245. 

Compensation,   247. 

Compliance,    247. 

Concrete.  247. 

confirm.ation,  '  249. 

CoNSECUTl\-E,    254. 

Consent,  255. 
Consideration,  255. 
Contingent    Rights.    371. 
Continuous — -Continuously,  372. 
Contributory  Infringement,  375. 
Controversy.   375. 
Conveyance,  376. 
Copy.  376. 
Country,  397. 


Creditors,  433. 

Current,    455. 

Dealer,  456. 

Debt,  457. 

Debtor  and  Creditor.  458. 

Defraud,  460. 

Descendants.   462. 

Description,  463. 

Deviation.  463. 

Device,   463. 

Different,  464. 

Doing   Business,   471. 

Double  Insurance.  472. 

dram.a.tization.  474. 

Drugs,   474. 

Dry  Dock.  474. 

Duties,  533. 

Edition,   534. 

Either,  534. 

Employee,   548. 

Enemy.  549. 

Enemy  Property.   54!). 

Enforce.   549. 

Enter — Entry.  549. 

Equal — Equally,   549. 

Especial  Privileges,  552. 

E\-ERY,   557. 

Excise,  562. 

Exercise,    5G8. 

Exigency,   568. 

Exports  and  Imports,  570. 

Extraordinary,    577. 

Failure.  577. 

Fair,    578. 

Federal  Corporation-,  578. 

Fees.  578.  ^ 

Fishing  Bill,  583. 

Foreigner,   591. 

Forwarding  Agent,  596. 

Freight.   604. 

From.  604. 

Function,   604. 

Gas  Check,  607. 

Gift  Enterprise.  608. 

Grant,  611. 

Hereafter,    618. 

HUNYADI.     610. 

If,   622. 

Imitation  Horsehair,  622. 

Immoral,   623. 

Immovable    Property,    623. 

Imposed,   639. 

Inchoate  Liens,  640. 

Including,  640. 

Indirect  Tax.   655. 

Innocence.   668. 

Insidious   Machinations.  669. 

Interlocking  Plant,  686. 

Inter\t:ne,  803. 

Involved,  805. 

Judicial,  LEGiSLATrnt  and  Ministerial.  810. 


XV  HI 


TABLE  OF  WORDS  ASD  PHRASES. 


Just,  815. 

Labor    Associations,    817. 

Land,  820. 

Lateral  Branch  Line,  822. 

Law,   822. 

Liability — Liable,  823. 

Life,    828. 

Locate — Location,  835. 

Machine,   837. 

Magistrate,   837. 

Manufacture — Manufactures,    850. 

Mature,  861. 

Measured  in  Place,  861. 

Merchant  —  Mercantile  —  Merchandise, 

861. 
Mineral,   864. 
Misbranded,  873. 
Mitigation  of  Sentence,  873. 
Money,  874. 
Moot  Questions,  891. 
Nation,  911. 
Natural  State,  913. 
Of,   924. 
Office,  924. 
Or,  927. 
Original,  928. 
Osteopath,   928. 
Other,   928. 
Otherwise,  929. 
Out,    930. 

Passage  of  Act,  935. 
Peonage,  947. 
Perils  of  the  Sea,  947. 
Person,  948. 
Polariscopic  Test,  954. 
Political  Community,  995. 
Powder,  998. 

Practicing  Medicine,  999. 
Private  Property,  1005. 
Privy-Privity,  1007. 
Proceedings    in    Rem    and    in     Personam, 

1008. 


Process  of  Law,  1008. 

Profits,  1010. 

Propiedad,  1010. 

Prosecuted — Prosecution,  1011. 

Prostitution,   1011. 

Publication,   1011. 

Public  Taxes,   1039. 

Public  Works,    1039. 

Purchase,  1040. 

Pure  Colors,  1040. 

Purpose  or  Intent,  1040. 

Putative    Criminals,    1040. 

Qui,    Serius,   etc.,    1044. 

Real  Estate,  1049. 

Regulate — Regulation,    1054. 

Repair,   1063. 

Retail,  1070. 

Right  of  Way,  1084. 

Rubberoid,    1084. 

Schemes,   1089. 

Sea   Beach,    1089. 

Sold,  1109. 

Sole  Rights,  1109. 

Solicit,   1109. 

Sounding  in   Tort,   llio. 

Statuary,  1122. 

Sued,  1150. 

Suppress,    1155. 

Take— Taking— Taken,    1155. 

Their,  1202. 

Thereafter,    1202. 

TiTULO,    1203. 

Trade  Rights,  1207. 

Transport — Transportation,    1207. 

Treaty    Fund,    1210. 

Unfair — Unfairly,    1216. 

Union,  1216. 

Unmanufactured  Tobacco,  1223. 

Verbal  Acts,  1229. 

Vested,   1231. 

Women,   1245. 

Would,    1261. 


Encyclopedia  of   United   States  Supreme 

Court  Reports. 


ABANDONED  AND  CAPTURED  PROPERTY.— See  the  title  Abandoned 
AND  Capture;d  Property,  vol.  1,  p.  1,  and  references  there  given.  In  addition, 
see  post,  ^^^\R. 

ABANDONMENT.— See  note  1. 

ABATEMENT. — As  to  abatement  of  suits,  see  post,  Abatement,  Revival 
AND  Survival.  As  to  destroying  unwholesome  food  as  a  public  nuisance,  see 
post,  Due  Process  oe  Law. 

ABATEMENT,  REVIVAL  AND  SURVIVAL 

I.  Grounds  of  Abatement,  2. 

B.  Another  Suit  Pending,  2. 

1.  Statement  of  Rule,  2. 

2.  Essentials  of  Defense,  2. 

b.  Identity  of  Suits  or  Actions,  2. 

(1)  Test  of  Identity,  2. 

c.  Necessity    for    Action    to    Be    Pending    in    Courts    of    Same 

State,  2. 

(2)  Action  in  State    Court    as    Barring   Action    in    Federal 

Court,  2. 
(a)   In  General,  2. 
D.  Termination,  Change  or  Transfer  of  Interest,  2. 
1.  Termination  of  Official  Authority,  2. 

ll-L  Abandonment  or  forfeiture  of  min-  tioii   to   give   up   and   relinquish   tlie   right 

ing   claims. — There     may      l)e      a      distinc-  claimed.'      Saxlehner   v.    Eisner,    etc.,    Co., 

tion  between  the  abandonment  of  a  claim  179  U.  S.  19,  31,  45  L.   Ed.  60.     And  this 

and   its  forfeiture,   but   no   distinction   was  court   in    referring   in    Singer   Mfg.    Co.   v. 

intended    in    §    3241,    Rev.    Stat.    Arizona,  June  Mfg.  Co.,  163  U.  S.  169,  186,  41  L.  Ed. 

providing    for    "the     relocation      of      for-  118,   to   the   loss   of  the   right   of  property 

feited  or  abandoned  lode  claims."     Clason  in  a  name  'like  the  right  to  an  arbitrary 

V.  Matko,  223  U.  S.  646,  653,  56  L.  Ed.  588,  mark'     by     dedication     or     abandonment, 

32    S.    Ct.    392.      See    post,    MINES    AND  quoted  with  approval  the  definition  of  De 

MINERALS.  Marag3\    in    his    International    Dictionary 

"The  loss   of   the   right  of  property   in  of       Industrial       Property      as       follows: 

trademarks  upon  the  ground  of  abandon-  'Abandonment  in  industrial  property  is  an 

ment   is   not   to    be   viewed   as    a     penalty  act  by  which  the  public  domain  originally 

either  for  nonuser  or  for  the  creation  and  enters  or  re-enters  into  the  possession  of 

use    of    new    devices.       There      must      be  the    thing    (commercial     name,    mark     or 

found  an  intent  to  abandon,  or  the  prop-  sign)  by  the  will  of  the  legitimate  owner, 

erty  is   not  lost;   and  while,   of   course,   as  The     essential      condition      to      constitute 

in    other    cases,    intent    may    be    inferred  abandonment    is    that    the    one    having    a 

when    the    facts   are   shown,   yet   the   facts  right  should  consent  to  the  dispossession, 

must  be   adequate   to   support   the  finding.  Outside   of   this   there   can   be    no   dedica- 

'To    establish    the     defense     of     abandon-  tion    of   the    right,   because   there   can    not 

ment  it  is  necessary  to  show  not  onlj'  acts  be  abandonment  in    the     juridical     sense 

indicating    a    practical    abandonment,    but  of   the    word."  "      Baglin    v.    Cusenier    Co., 

an  actual   intent  to  abandon.     Acts  which  221  U.  S.  580,  597,  55  L.  Ed.  863,  81  S.  Ct. 

unexplained   v.-ould   be   sufficient   to   cstab-  669.     See  post,  TR.A.DEMARKS,  TRADE- 

lish  an  abandonment  may  be  answered  by  NAMES     AND     UNFAIR     COMPETI- 

showing    that    there    never    was    an    inten-  TION. 


15-26  ABATBMBNT,  REVIVAL  AND  SURVIVAL.  Vol.  I. 

b.  Actions  or  Suits  against  Officers  or  Boards,  2. 

(1)  Suits  Involving  Personal  Delinquency  of  Officer,  2. 

(2)  Suits  Involving  Continuing  Duty  of  Officer  or  Board,  3. 

II.  Raising  and  Waiving  Grounds  of  Abatement,  3. 

A.  Raising  Grounds  of  Abatement,  3. 
1.  Dilatory  Plea,  3. 

a.  Pleas  in  Abatement,  3. 

(2)   In  Criminal  Cases,  3. 

(b)  Time  of  Filing,  3. 

(c)  Form   and   Sufficiency,   3. 

III.  Revival  or  Continuance  of  Suits  or  Actions,  3. 

H.  Proceedings  Subsequent  to  Revival,  3. 

CROSS  REFERENCES. 
See  the  title  Abatement,  Revival  and  Survival,  vol.  1,  p.  12. 
As  to  effect  of  death  of  party  pending  appeal  or  error,  and  revival  of  such 
proceedings,  see  post.  Appeal  and  Error.     As  to  judgments  and  decrees,  see 
post.  Judgments  and  Decrees. 

I.  Grounds  of  Abatement. 

B.  Another  Suit  Pending — 1.    Statement  oe  Rule. — See  note  2. 

2.  Essentials  oe  Defense — b.  Identity  of  Suits  or  Actions — (1)  Test  of 
Identity. — See  note  5. 

c.  Necessity  for  Action  to  Be  Pending  in  Courts  of  Same  State — (2)  Action 
in  State  Court  as  Barring  Action  in  Federal  Court — (a)  In  General. — See 
note  12. 

D.  Termination,  Change  or  Transfer  of  Interest — 1.  Termination  oe 
Oeeicial  Authority — b.  Actions  or  Suits  against  Officers  or  Boards — (1)  Suits 
Involving  Personal  Delinquency  of  Officer. — See  note  65.     After  his  official  au- 

15-2.     Another  suit  pending — Libel  pro-  of  the  ship,  as  authorized  by  §  4285,  Rev. 

ceedings. — All    further    proceedings    on    a  Stat.,  is  fully  supported  by  the  leading  case 

libel  instituted  by  salvage  .claimants  who  of  Providence,  etc..  Steamship  Co.  v.  Hill 

towed  to  port  a  vessel  disabled  in  a  colli-  Mfg.  Co.,  109  U.  S.  578,  607,  27  L.  Ed.  1038, 

sion   must   stop   upon  pleading  the   pend-  3    S.  Ct.  379,     617;    The    San    Pedro,    223- 

ency  in  the  same  court  of  a  separate  pro-  U.  S.  365,  56  L.  Ed.  473,  32  vS.  Ct.  275. 
ceeding    by    the     owners    of    the    vessel,  16-5.      Test    of    identity. — See    Helm    v. 

claiming   the   benefits    of    the   limited    lia-  Zarecor,  222  U.  S.  32.  56  L.  Ed.  77,  32  S. 

bility    provisions    of  U.    S.  Rev.    Stat.,    §§  Ct.   10.     See  post.  LIS   PENDENS;   RES 

4283-4285,     U.     S.     Comp.     Stat.    1901,     pp.  AD  JUDICATA. 

2943,  2944,  as  amended  by  the  act  of  June  18-12.  Action  in  state  court  as  barring 
26,  1884  (23  Stat,  at  L.  57,  chap.  121,  U.  S.  action  in  federal  court.— "The  rule  is  well 
Comp.  Stat.  1901,  p.  2945),  §  18,  in  which,  recognized  that  the  pendency  of  an  ac- 
conformabl}^  to  admiralty  rule  54,  there  tion  in  the  state  court  is  no  bar  to  pro- 
has  been  an  appraisement  of  the  vessel  ceedings  concerning  the  same  matter  in 
and  her  pending  freight,  and  a  stipula-  the  federal  court  having  jurisdiction,  for 
tion  entered  into  for  the  payment  of  the  Ijoth  the  state  and  federal  courts  have 
appraised  value  into  court,  and  a  moni-  certain  concurrent  jurisdiction  over  such 
tion  duly  issued,  requiring  all  persons  to  controversies,  and  when  they  arise  be- 
present  their  claims  and  make  proof.  tween  citizens  of  different  states  the  fed- 
The  San  Pedro,  223  U.  S.  365,  56  L.  Ed.  eral  jurisdiction  may  be  invoked  and  the 
473.  32  S.  Ct.  275.  See  post,  ADMI-  cause  carried  to  judgment,  notwithstand- 
RALTY;  SALVAGE;  SHIPS  AND  ing  a  state  court  may  also  have  taken  ju- 
SHIPPING.  risdiction   of  the   same   case."     McClellan 

The   view    the      federal    supreme    court  t'.   Carland.  217  U.   S.   268,  54  L.   Ed.   762, 

takes  of  the  statutory  injunction  declared  30  S.  Ct.  501. 

by  §  4285,  Rev.  Stat.,  and  of  its  applica-  26-65.     Personal   delinquency   of  officer, 

tion   to  cases  where   the  vessel   has   been  —Richardson    v.    McChesney,    218    U     S. 

surrendered     and     a      stipulation     entered  487,  54  L.  Ed.  1121,  31  S.  Ct.  43.     See,  also, 

mto,  as  provided  by  admiralty  rule  54,  as  Duffield   v.   Ashurst,   225   U.    S.   697,   56   L- 

a   proceeding  tantamount  to   a   "transfer"  Ed.  1262,  32  S.  Ct.  838. 


Vol.  I.  ABOUT.  '  26-47 

thority  terminates,  the  case,  as  far  as  it  seeks  to  accomplish  the  object  of  the  bill, 
is  at  an  end,  there  being  no  statute  providing  for  the  substitution  of  his  suc- 
cessor in  a  suit  of  this  character.^-^^ 

(2)    Suits  Involving  Continuing  Duty  of  Officer  or  Board. — See  note  66. 

II.  Raising  and  Waiving  Grounds  of  Abatement. 

A.  Raising  Grounds  of  Abatement — 1.  Dilatory  Plea — a.  Pleas  in 
Abatement — (2)  In  Criminal  Cases — (b)  Time  of  Filing. — A  plea  in  abatement 
on  account  of  irregularities  in  selecting  and  impaneling  the  grand  jury  must  be 
filed  at  the  first  opportunity.^* 

(c)  Form  and  Sufficiency. — Pleas  in  abatement  on  account  of  irregularities  in 
selecting  and  impaneling  the  grand  jury  which  do  not  relate  to  the  competency 
of  the  individual  jurors  must  be  pleaded  with  strict  exactness.'''* 

III.  Revival  or  Continuance  of  Suits  or  Actions. 

H.  Proceedings  Subsequent  to  Revival. — Where  a  suit,  originally  against 
a  nonresident,  is  revived  after  his  death,  the  revivor  operates  only  against  the 
personal  representative  in  the  state  wherein  the  suit  is  brought,  the  executors  and 
residuary  legatees  in  the  other  state  not  being  parties,  under  the  elementary  rule 
that  service  of  process  outside  of  the  limitation  of  the  state  is  not  operative  to 
bring  the  parties  served  within  the  jurisdiction  of  the  court  ordering  the 
process, ^^* 

ABDUCTION  AND  KIDNAPPING.— See  the  title  Abduction  and  Kid- 
napping, vol.  1,  p.  48,  and  references  there  given. 

ABIDING  THE  EVENT. — See  cross  references  under  Abiding  the;  EvKnt, 
vol.  1,  p.  49. 

ABODE. — See  post,  Domicile. 

ABOLITION. — See  post.  Slavery  and  Involuntary  Servitude. 

ABOUT. — About  is  a  relative  and  frequently  ambiguous  term,  and  its  pre- 
cise meaning  is  affected  by  circumstances  existing  when  the  word  is  used  in  a 
contract,  and  known  to  and  recognized  by  the  parties.     Hence  where  there  was 

26-65a.     Termination   of  official  author-  34-6a.      At    first    opportunity. — Hyde    v. 

ity. — Richardson    v.     McChesney,    218    U.  United    States,    225  U.    S.  347,    56  L.    Ed. 

S.  487,  54  L.   Ed.  1121,  32  S.  Ct.  43.     This  1114,  32  S.  Ct.  793,  citing  Agnew  V.  United 

case  is  governed  by  United  States  v.  Bout-  States.  165  U.  S.  36,  41  L.  Ed.  624. 

well,    17    Wall.    604,  21  L-    Ed.  721;    Ber-  Under  Code  of  District  of  Columbia.— 

nardin   v.    Butterworth,   169   U.    S.   600,   42  The  defendants  contest  the  application  of 

L.    Ed.    873,    and    Caledonian  Coal    Co.  ^'.  the    case    on    the  ground    that    under    the 

Baker,  196  U.   S.  432,  441,  49  L.   Ed.  540,  District  Code  a  plea  in  abatement  comes 

which   are    cited    as    sustaining    the    above  properly    after    a   demurrer   to   the   indict- 

proposition  in  vol.  1,  U.  S.  E.,  pages  27,  28.  ment    and    before    pleas    to  the  matter    of 

The  expiration  of  the  term  of  office  of  the  indictment,  such  as  not  guilty  or  spe- 
3.  state  official,  and  the  induction  of  his  cial  pleas.  The  proposition  may  be  form- 
successor  into  office,  abates  a  suit  to  re-  ally  correct,  but  does  not  preclude  the 
quire  him,  when  certifying  the  names  of  court  from  itself  noticing  an  unreason- 
nominees  for  congress  to  the  clerks  of  able  delay  or  treating  the  demurrer  as 
the  various  county  courts,  to  proceed  un-  raising  that  objection.  Hyde  v.  United 
der  a  specified  apportionment  act  rather  States,  225  U.  S.  347,  373,  56  L.  Ed.  1114, 
than    under    a    later    one,  attacked  as    in-  32  S.  Ct.  793. 

valid,   there  being  no   statutory   authority  34-7a.     Form  and  sufficiency — Strict  ex- 

for  the  substitution  of  his   successor  in  a  actness. — Hyde  v.  Unted  States,  225  U.  S. 

suit  of  this  character.     Richardson  v.  Mc-  347.  5G  L.  Ed.  1114,  32  S.  Ct.  793.  citing  Ag- 

Chesney,  218  U.  S.  487,  54  L.  Ed.  1121,  31  new  v.  United  States,  165  U.  S.  36.  41   L. 

S.  Ct.  43.  Ed;  624,  which  will  be  found  cited  in  1  U. 

27-66.     Suits  involving  continuing  duty.  S.  E.  31.     And  see  post.  JURY. 

— Richardson    z'.    McChesney,    218    U.    S.  47-86a.     Revivor  operating  against  per- 

487,  54  L.  Ed.  1121,  31  S.  Ct.  43.     See,  also,  sonal  representative.— Brown   z:   Fletcher, 

Duffield  V.  Ashurst.  225  U.  S.  697,  56  L.  210  U.  S.  82,  52  L.  Ed.  966,  28  S.  Ct.  702. 
Ed.   1262,   32   S.   Ct.   838. 


49-52  ACCESSION,  ACCRETION  AND  RELICTION.  Vol.  I. 

ambigiiity  as  to  the  meaning  of  the  term  in  a  contract,  parol  evidence  was  prop- 
erly adm'issible.  The  oral  evidence  identified  the  premises  and  gave  point  and 
certainty  to  the  meaning  of  the  word.-^'' 

ABROGATE.— See  note  la. 

ABSCONDING.— See  post,  Attachment  and  Garnishment. 

ABSENTEES. — As  to  distributing  estate  of  absentee,  see  post,  Exe;cutors 
AND  Administrators. 

ABUTTING  OWNERS.— See  post.  Due  Process  of  Law;  Special,  Assess- 
ments;   Streets  and  Highv^^ays. 

ACCESSION,  ACCRETION  AND  RELICTION. 

I.  Definitions  and  Distinctions,  4. 

XL  Property  Rights,  4. 

A.  Accretion  and  Reliction,  4. 

1.  Gradual  Accretions,  4. 

a.  Statement  of  the  Rule,  4. 

b.  Application  of  the  Rule,  3. 

(4)   As  Affected  by  Character  of  the    Stream  or  Body  of 

Water,   5. 
(GYi)   x\ccretions  under  Civil  Law,  5. 

B.  Avulsion,   5. 

in.  Determination  of  Property  Rights,  5. 

D>^.  Pleading,  5. 

CROSS  REFERENCES. 

See  the  title  Accession,  Accretion  and  Reliction,  vol.  1,  p.  51,  and  references 
there  given. 

In  addition,  see  post,  Boundaries. 

As  to  refusal  of  court  to  reverse  decision  of  court  o,f  Hawaii  in  regard  to  ap- 
portionment of  accretions,  see  post,  Appeal  and  Error.  As  to  effect  of  accre- 
tion on  boundaries  between  states,  see  post,  Boundaries. 

I.  Definitions  and  Distinctions. 
See  note  5. 

n.  Property  Rights. 

A.  Accretion  and  Reliction — 1.  Gradual  Accretions — a.  Statement  of  the 
Rule. — See  note  6. 

49-3a.     "About"   a    relative   term. — Har-  by  a    stream,    the     banks    of    which    are 

ten   V.   Loftier,   212   U.    S.   397,   404,   53    L-  changed   by   the   gradual    and   impercepti- 

Ed.  568,  29  S.  Ct.  351.     See  post,  PAROL  ble  process  of  accretion   or  erosion,   con- 

EVIDENCE.  tinues  to  hold  to  the  stream  as  his  bound- 

50-la.    Abrogation   of    statutes   and   de-  ary;   if    his    land  is    increased    he  is    not 

struction   of   rights   acquired. — There   is   a  accountable  for  the  gain,  and  if  it  is  dimin- 

broad    distinction    between    tlie    power    to  ished    he    has  no    recourse  for    the    loss." 

abrogate   a    statute    and    the    authority   to  Philadelphia  Co.  v.  Stimson.  223  U.  S.  605, 

destroy    rights    acquired    under    such    law.  624,  56  L.  Ed.  570,  32  S.  Ct.  340.     See  post, 

Choate  v.  Trapp,  224  U.  S.  665,  56  L.  Ed.  BOUNDARIES. 

941,   ,32   S.    Ct.   565.      See   post,    CONST!-  The   loss   of  land,   caused   by   its   wash- 

TUTIONAL    LAW;    STATUTES.  ing    away    from    time  to    time,  by    heavy 

_    52-5.    Test   as   to   what  is    gradual    and  floods    and   freshets   in   a    rapidly    flowing 

imperceptible.— Philadelphia    Co.   v.    Stim-  stream,   during  the   course  of  years,   falls 

f^on,  223  U.   S.  605,  624,  56   L.   Ed.  570,  32  upon  the  riparian  owner,  so  as  to  preclude 

S.   Ct.  340.  him  from  reclaiming  land  thus  submerged 

_    52-6.     General  rule  as  to  property  rights  inside     the    former    line    of    high    water. 

m   accretion.— "It    is    the    established    rule  Philadelphia    Co.    v.    Stimson,    223   U.    S. 

that  a  riparian  proprietor  of  land  bounded  605,  56  L.  Ed.  570,  32  S.  Ct.  340. 


Vol.  I. 


ACCOUNTING. 


54-57 


d.  Application  of  the  Rule — (4)  As  Affected  by  Character  of  the  Stream  or 
Body  of  Water. — See  notes  17,  18,  19. 

(6^)  Accretions  under  Civil  Laze. — Lands  formed  gradually  in  the  Philippine 
Islands  by  the  action  of  the  sea  belong  to  the  sovereign. ^^^^ 

B.   Avulsion. — See  note  25. 

III.  Determination  of  Property  Rights. 

DJ.  Pleading. — Allegations  as  to  Avulsion. — An  allegation  that  land  was 
washed  away  from  time  to  time  by  heavy  floods  and  freshets  and  that  a  large 
part  of  the  land  became  slightly  submerged  during  a  course  of  years  is  insuffi- 
cient to  show  that  there  was  at  any  particular  time  such  a  sudden,  violent  and 
forcible  change  in  the  channel  of  the  stream  as  to  entitle  the  riparian  owner  to 
retain  the  boundary  to  the  original  line.^^^ 

ACCIDENT  INSURANCE.— See  the  title  Accident  Insurance,  vol.  1,  p.  58, 
and  references  there  given. 

ACCOMMODATION  PAPER.— See  post,  Biels,  Notes  and  Checks. 

ACCOMPLICES  AND  ACCESSORIES.— See  the  title  Accomplices  and 
Accessories,  vol.  1,  p.  63,  and  references  there  given. 

ACCORD  AND  SATISFACTION.— See  the  title  Accord  and  Satisfaction, 
vol.  1,  p.  69,  and  references  there  given. 

ACCOUNTING. — See  post,  Partnership;  Principal  and  Agent;  United 
States. 


54-17.     As  affected  by  height  of  banks. 

— Philadelphia  Co.  v.  Stimson.  223  U.  S. 
G05,  624,  56  L.  Ed.  570,  32  S.  Ct.  340. 

54-18.  As  affected  by  rapidity  of  cur- 
rent and  nature  of  soil. — ^Philadelphia  Co. 
z'.  Stimson,  223  U.  S.  605,  624,  56  L.  Ed. 
570,  32   S.  Ct.  340. 

54-19.  As  affected  by  size  of  stream. — 
"For  example,  the  general  principle  of  ac- 
cretion, which  has  that  of  diminution  as 
its  correlative,  applies  to  such  rivers  as 
the  Mississippi  and  the  Missouri,  not- 
withstanding the  extent  and  rapidity  of 
the  changes  constantly  effected."  Phila- 
delphia Co.  V.  Stimson,  223  U.  S.  605,  625, 
56  L.   Ed.  570.  32  S.  Ct.  340. 

55-23a.  Land  added  to  the  shore  in  the 
Philippine  Islands. — Land  formed  gradu- 
ally in  the  Philippine  Islands  since  1811, 
by  the  action  of  the  sea  must  be  deemed 
to  belong  to  the  sovereign,  and  not  to 
the  owner  of  the  uplands,  in  view  of  the 
declaration  of  the  Spanish  law  of  waters 
of  1866,  efifective  in  the  Philippine  Is- 
lands in  1871,  that  lands  added  to  the 
shores  by  the  accession  and  accretions 
caused  by  the  sea  shall  belong  to  the  pub- 
lic domain  unless  the  government  shall 
declare  otherwise,  which  must  be  re- 
garded as  expressing  the  imderstanding 
of  the  codifiers  as  to  what  the  earlier  law 
had     been.      This      is     especially     true    in 


view  of  the  fact  that  other  leading  civil 
law  countries  have  adopted  the  same  doc- 
trine. It  is  plain  that  the  law  includes 
and  principally  means  additions  that 
turn  the  shore  to  drv  land.  Ker  &  Co.  v. 
Couden,  223  U.  S.  268,  278,  56  L.  Ed.  432, 
32   S.  Ct.  284. 

That  the  question  of  accretion  and  al- 
luvion to  the  shore  is  a  vexed  one  is 
shown  not  only  by  the  different  views  of 
Spanish  commentators  but  by  the  con- 
trary provisions  of  modern  codes  and  by 
the  occasional  intimations  of  the  doctors 
of  the  Roman  law.  Ker  &  Co.  v.  Couden, 
223  U.  S.  268,  275,  56  L.  Ed.  432,  32  S. 
Ct.   284. 

55-25.  Avulsion. — Philadelphia  Co.  z/. 
Stimson,  223  U.  S.  605.  624,  56  L.  Ed.  570, 
32    S.    Ct.   340. 

"It  is  when  the  change  in  the  stream 
is  sudden,  or  violent,  and  visible,  that  the 
title  remains  the  satne.  It  is  not  enough 
that  the  change  may  be  discerned  by 
comparison  at  two  distinct  points  of  time. 
It  must  be  perceptible  when  it  takes 
place."  Philadelphia  Co.  v.  Stimson,  223 
U.  S.  605,  624,  56  L.  Ed.  570,  32  S.  Ct. 
340. 

57-35a.  Allegations  as  to  avulsion. — ■ 
Philadelphia  Co.  r.  Stimson,  223  U.  S. 
605,   56   L.    Ed.   570,   32   S.   Ct.   340. 


74  ACKNOWLEDGE.  Vol.  I. 


ACCOUNTS  AND  ACCOUNTING. 

in.  Jurisdiction,  6. 

IV.  Limitations  and  Laches,  6. 

CROSS   REFERENCES. 

See  the  title  Accounts  and  Accounting,  vol.  1,  p.  70,  and  references  there 
given. 

In  addition,  see  post,  Appeal  and  Error  ;  Limitation  op  Actions  and  Ad- 
ve;rse;  Possession. 

As  to  liability  of  estate  for  an  attorney  to  account  for  fees  under  an  agree- 
ment of  division  of  fees,  see  post,  Attorne^y  and  CuEnt.  As  to  suits  for  ac- 
counting by  policy  holders,  see  post.  Insurance.  As  to  accounts  between  partners, 
see  post,  Partnership.  As  to  accounting  between  principal  and  agent,  see  post. 
Principal  and  Agent.  As  to  accounting  by  trustees,  see  post,  Trusts  and 
Trustees. 

III.  Jurisdiction. 

Rights  of  Creditors. — A  mere  creditor,  as  such,  has  no  right  to  compel  his 
debtor  to  account  in  equity,  in  the  absence  of  any  trust  relation  between  them.2<5a 

VI.  Limitations  and  Laches. 

Suit  on  Agreement  as  to  Division  of  Attorney's  Fees. — Failure  to  bring 
suit  for  an  accounting  under  an  agreement  to  divide  the  net  attorneys'  fees  re- 
ceived in  the  prosecution  of  French  spoliation  claims  until  two  years  after  the 
enactment  of  Appropriation  Act  March  3,  1899,  c.  426,  30  Stat.  1161,  1191,  [U. 
vS.  Comp.  St.  1901,  p.  751],  from  which  payment  might  be  made,  is  not  such  laches 
as  defeats  a  recovery.^^^ 

ACCOUNTS  RECEIVABLE.— See  note  a. 

ACCRETION. — See  ante.  Accession,  Accretion  and  Reliction,  p.  4. 

ACCRUAL  OF  ACTION.— See  post,  Actions;  Bail  and  Recognizance; 
Banks  and  Banking;    Limitation  op  Actions  and  Adverse  Possession. 

ACCRUED  INTEREST.— See  post.  Interest;  Mortgages  and  Deeds  of 
Trust. 

ACCUSATION. — See  post,  Indictments,  Informations,  Presentments  and 
Complaints. 

ACKNOWLEDGE.— See  post,  Acknowledgments. 

74-26a.     Rights     of     creditors.— Decree  86,  28  S.  Ct.  86.     See  post,  LIMITATION 

(1907)    Brown   v.   Equitable    Life     Assur.  OI-    ACTIONS    AND    ADVERSE    POS- 

Society  of  United   States,   151    Fed.    1,   81  SESSION. 

C.     C.     A.     1,    reversed.     Equitable    Life  74-a.      "Accounts     receivable     of      the 

Assur.   Soc.  7'.  Brown,  213  U.   S.  2.5,  53   L-  debtor,    that    is,    the    amounts    owing    to 

Ed.  G82,  29   S.   Ct.  404.  him    on    open    account,    are    of    course    as 

_74-30a.     Suit    on   agreement   as     to      di-  susceptible   of   preferential    disposition    as 

vision      of      attorney's      fees. — Judgment,  other    property."      National    Bank   v.    Na- 

Waggaman    v.    Earle    (1905),    25    App.    D.  tional,   etc..    County   Bank,   225   U.   S.   178, 

C.  582;  Earle  z'.  Waggaman,  Id.,  reversed.  184,   56   L.    Ed.    1042,   32    S.    Ct.    633.      See 

Earle  i:  Myers,  207  U.  S.  244,  52  L.   Ed.  post,    BANKRUPTCY. 


Vol.  I.  ACTIONS.  77-101 


ACKNOWLEDGMENTS. 

II.  Necessity  for  Acknowledgment,  7. 

A.  In  General,  7. 
1.  Of  Deed,  7. 

CROSS  REFERENCES. 

See  the  title  Acknowle:dgme:nts,  vol.  1,  p.  76,  and  references  there  given. 
In  addition,  see  post,  Re^cgrding  Acts. 

II.  Necessity  for  Acknowledgment. 
A.    In  General — 1.   Of  Dee^d. — See  note  4. 

ACQUIESCENCE.— See  post,  Lachks. 

ACQUIT. — See  post,  Autrefois,  Acquit  and  Convict. 

ACTION  OF  DECEIT.— See  post.  Banks  and  Banking. 

ACTIONS. 

I.  Definitions,  Distinctions  and  General  Consideration,  7. 

L.  Kinds  of  Actions  Generally,  7. 

III.  Statutory  Remedies,  8. 

C.  Statute  Creating  New  Right    or    Offense  and  Prescribing    a    Specific 
Remedy  or  Punishment,  8. 

CROSS   REFERENCES. 

See  the  title  Actions,  vol.  1,  p.  96,  and  references  there  given. 

In  addition,  see  post.  Conflict  of  Laws. 

As  to  judgment  in  criminal  action  as  bar  to  civil  action,  see  post,  Rfs  Adju- 

DICATA. 

I.    Definitions,   Distinctions  and  General  Consideration. 
L.    Kinds  of  Actions  Generally. — See  note  21. 

77-4.    Deed. — Acknowledgment    by     the  An   action    by   an   individual   to   recover 

grantor  before  a  proper  officer  is  made  as  damages   for  a  personal   injury  alleged  to 

much    a   prerequisite    to   the   validity   of   a  have  been   caused  by  the   negligence  of  a 

deed    as  the    signing,    by  Rev.    St.    Ariz.  corporation,  is  a  strictly  civil  proceeding. 

1901,  par.  725,  providing  that  "every  deed  Chicago,  etc.,  R.  Co.  v.  United  States,  220 

or    conveyance    of    real    estate     must      be  U.    S.   559,    55    L.    Ed.    582,    31    S.    Ct.   612. 

duly    acknowledged    by    some    officer    au-  See   post,   DAMAGES, 

thorized    to    take    acknowledgments,    and  An  action  by  the   United   States  to   re- 

properly  certified  to  by  him  for  registra-  cover    from   a    carrier    the    penalty    pre- 

tion."     Judgment   (Ariz.   1906),   85   P.   245,  scribed    for    violations    of    the    safety    ap- 

affirmed.      Lewis    v.    Herrera,    208    U.    S.  pliance    acts    of    March    2,    1893,    April    1. 

309,   :)2    L.    F.d.   506.  28   S.   Ct.   412.  1896,    and    March    2,    1903,    is    a   civil,    and 

101-21.    Civil  action. — An  action  of  debt  not   a   criminal,   action.     Chicago,   etc..   R. 

brought   by   the   United   States   to   recover  Co.  v.  United  States.  220  U.   S.  559,  55   L. 

a   penalty   under    the    statute    of    congress  Ed.      582,     31     S.    Ct.   612.      See  post.   IN- 

of  March  3,  1903.  regulating  the  immigra-  TERSTATE     AND      FOREIGN      COM- 

tion  of  aliens  into  this  country.     32  Stat.  MERGE:      PENALTIES      AND       FOR- 

1213,    1214,    c.    1012,    is    in    all    substantial  FEITURES. 

respects,    a    civil    action    as    distinguished  It  is  settled  law  that  a  certain  sum.  or 

from   a   strictly  criminal   case   or   criminal  a   sum  which  can   readily  be  reduced  to  a 

prosecution.      Hepner   z\     United      States,  certainty,    prescribed    in    a    statute     as      a 

213   U.    S.    103.    104.   53    L.    Ed.    720.   29    S.  penalty   for   the  violation   of  law,   may  be 

Ct.  474.     See,  also,  post.  DEBT.  THE  AC-  recovered   by   civil   action,   even   if  it   mav 

TION    OF:    PENALTIES    AND    FOR-  also  be  recovered   in   a  proceeding  which 

FEITURES.  is   technically  criminal.     Chicago,  etc.,   R. 


107-116 


ADJOURXED  S  ESS  I  OX. 


Vol.  L 


III.  Statutory  Remedies. 

C.  Statute  Creating  New  Right  or  Offense  and  Prescribing  a  Specific 
Remedy  or  Punishment. — See  note  58. 

ACT  OP  GOD. — See  post,  Carrie:rs;    Ships  and  Shipping. 

ACTS  OF  BANKRUPTCY.— See  post,  Bankruptcy. 

ACTS  OF  CONGRESS.— See  post,  Statutes. 

ACTUAL  CONTROVERSY. — See  post.  Appeal  and  Error;    Courts. 

ADDITIONAL  COSTS.— See  post,  Costs. 

ADDITIONAL  PUNISHMENT.— See  post,  Sentence  and  Punishment. 

ADDITIONAL   SECURITY  ON  APPEAL.— See  post,  Appeae  and  Error. 

ADDITIONAL  SERVITUDE.— See  post,  Eminent  Domain. 

ADEQUATE  FACILITIES.— See  note  3a. 

ADEQUATE  REMEDY  AT  LAW.— See  post,  Appeal  and  Error  ;  Equity  ; 
Injunctions;  Judgments  and  Decrees;  Mandamus;  Multiplicity  of  Suits; 
Prohibition  ;  Quieting  Title. 

ADJOINING'^LANDOWNERS.— See  the  title  Adjoining  Landowners,  vol. 
1,  p.  117,  and  references  there  given. 

ADJOURNED  SESSION.— See  Adjourned  Session,  vol.  1,  p.  117.  See 
post,  Adjournments;  Courts. 


Co.  V.  United  States,  220  U.  S.  559,  55  L. 
Ed.  582,  31  S.  Ct.  612;  Hepner  v.  United 
States,  213  U.  S.  103,  108,  53  L.  Ed.  720,  29 
S.   Ct.  474. 

107-58.  Statute  providing  particular  or 
special  remedy. — "The  rule  which  ex- 
cludes other  remedies  where  a  statute 
creates  a  right  and  provides  a  special 
remedy  for  its  enforcement  rests  upon 
the  presumed  prohibition  of  all  other 
remedies.  If  such  prohibition  is  intended 
to  reach  the  government  in  the  use  of 
known  rights  and  remedies,  the  language 
must  be  clear  and  specific  to  that  effect." 
United  States  v.  Stevenson,  215  U.  S.  190, 
200,  54  L.   Ed.  153,  30  S.   Ct.  35. 

Congress,  by  providing  in  the  immigra- 
tion act  of  February  20,  1907  (34  Stat,  at 
L.  898,  chap.  1134,  U.  S.  Comp.  Stat. 
Supp.  1907,  p.  389),  §  5,  a  civil  action  for 
the  recovery  of  a  penalty  in  case  of  a 
violation  of  §  4  of  that  act,  making  it  a 
misdemeanor   to    assist    or    encourage    the 


importation  of  alien  contract  laborers, 
did  not  preclude  a  prosecution  by  indict- 
ment to  enforce  such  penalty.  United 
States  V.  Stevenson,  215  U.  S.  190,  54  L. 
Ed.  153.  30  S.  Ct.  35.  See  post,  PEN- 
ALTIES  AND    FORFEITURES. 

116-3a.  The  term  "adequate  or  reason- 
able facilities,"  in  relation  to  the  opera- 
tion of  trains,  is  not  in  its  nature  capable 
of  the  exact  definition.  It  is  a  relative 
expression  and  is  to  be  considered  as 
calling  for  such  facilities  as  might  be 
fairly  demanded,  regard  being  had, 
among  other  things,  to  the  size  of  the 
place,  the  extent  of  the  demand  for  trans- 
portation, the  cost  of  furnishing  the  ad- 
ditional accommodations  asked  for,  and 
to  all  other  facts  which  would  have  a 
bearing  upon  the  question  of  convenience 
and  cost.  Atlantic,  etc.,  R.  Co.  v.  Whar- 
ton, 207  U.  S.  328,  52  L.  Ed.  230,  28  S. 
Ct.  121.  See  post.  INTERSTATE  AND 
FOREIGN   COMMERCE. 


Vol.  I. 


ADMIXISTRATRIX. 


118 


ADJOURNMENTS. 

CROSS   REFERENCES. 

See  the  title  Adjournments,  vol.  1.  p.  118.  and  references  there  given. 

Adjournment  of  Circuit  Court  by  Written  Order  of  Circuit  Judge. — By  § 

672  of  the  United  States  Revised  Statutes,  it  is  provided  that  if  neither  of  the 
judges  of  the  circuit  court  be  present  to  open  and  adjourn  any  regular  or  ad- 
journed special  session,  either  of  them  may,  by  a  written  order,  directed  al- 
ternatively to  the  marshal,  and  in  his  absence,  to  the  clerk,  adjourn  the  court 
from  time  to  time  as  the  case  may  require,  to  any  time  before  the  next  regular 
term.-^ 

ADJUDICATION. — See  post.  Courts.  As  to  former  adjudication,  see  post. 
Res  Adjudicata. 

ADMINISTRATION.— See  post.  Bankruptcy:  Wills.  As  to  administra- 
tion of  decedents'  estates,  see  post,  Executors  -and  Administrators.  As  to 
administration  of  trust  estates,  see  post,  Trusts  and  Trustees. 

ADMINISTRATIVE.— See  note  3a. 

ADMINISTRATORS.— See  post,  Executors  and  Administrators. 

ADMINISTRATRIX. — See  post.  Admiralty;  Executors  and  Adminis- 
trators ;  Parties. 


118-2a.  Adjournment  of  circuit  court  by 
written  order  of  either  judge. — Harlan  f. 
:McGourin,  218  U.  S.  442.  54  L.  Ed.  1101, 
31  S.  Ct.  44.     See,  also,  post.  COURTS. 

118-3a.  Administrative  provisions  in 
War  Revenue  Act. — The  War  Revenue 
Act  of  June  13,  1898,  itself  provides  that 
payment  may  be  enforced  by  acti<jn. 
Section  31  makes  "all  administrative, 
special,  or  stamp  provisions  of  law.  in- 
cluding the  laws  in  relation  to  the  as- 
sessment of  taxes,  not  heretofore  specif- 
icall}^  repealed,"  applicable  to  the  act. 
Within  administrative  provisions  must  be 
included  those  which  relate  to  the  collec- 
tion ot  the  taxes  imposed.  For  the  ad- 
ministration of  the  statute  may  well  be 
taken  to  embrace  all  appropriate  meas- 
ures for  its  enforcement,  and  there  is  no 
substantial  reason  for  assigning  to  the 
phrase  which  is  used  in  the  section  quoted 
a  narrower  interpretation.  It.  therefore, 
comprehends  the  authority  conferred  by 
§   3213    of   the    Revised    Statutes.      United 


States  z:  Chamberlin.  219  U.  S.  250,  269, 
55  L.  Ed.  204,  31  S.  Ct.  155.  See  post. 
REVENUE   LAWS. 

Administrative  regulations. — An  order 
of  a  railroad  commission  requiring  a  rail- 
road company  to  make  track  connections 
was  not  a  mere  administrative  regulation, 
but  it  was  the  taking  of  property,  since  it 
compelled  the  defendant  to  expend  money 
and  prevented  it  from  using  for  other  pur- 
poses the  land  on  which  the  tracks  were 
to  be  laid.  Its  validity  could  not  be  sus- 
tained merely  because  of  the  fact  that  the 
carrier  had  been  given  an  opportunity  to 
be  heard,  but  was  to  be  tested  by  consid- 
ering whether,  in  view  of  all  the  facts,  the 
taking  was  arbitrarj^  and  unreasonable  or 
was  justified  by  the  public  necessity  which 
the  carrier  could  lawfully  be  compelled 
to  meet.  Oregon  R..  etc.,  Co.  v.  Fair- 
child,  224  U,  S.  510,  56  L.  Ed.  863,  32  S. 
Ct.  535.  See  oost.  INTERSTATE  AND 
FOREICxX   COMMERCE. 


136-144  ADMIRALTY.  Vol.  I. 

ADMIRALTY. 

I.  Jurisdiction,  10. 

5.  Vessels  or  Property  within  Jurisdiction,  10. 

a.  Vessels,  10. 

(4a)  Vessels  in  Dock  Undergoing  Repairs,  10. 

b.  Torts,  10. 

(3)  Nature  and  Character  of  Tort,  10. 

(d)  Injuries  to  Ships  or  Vessels,  10. 
bb.  Collision,  10. 

(e)  Injuries  on  Land  Caused  by  Ships  or  Vessels,  11. 

II.  Maritime  Law,   12. 
III.  Procedure,  13. 

E.  Appearance,  Process  and  Attachment,  13. 

3.  Attachment,  13. 

h.  Irregular  Writ  as  Protecting  Officer,  13. 
H.  Intervention  and  Claim,  14. 

1.  Intervention,   14. 
P.  Disposition  of  Proceeds  of  Sale,  14. 

1.  Right  to  Share  in  Proceeds  of  Sale,  14. 
R.  Review,  14. 

2.  Jurisdiction,    14. 

a.  Courts,  14. 

(4)  Supreme  Court,  14. 

c.  Appealable  Decisions,  14. 
9.  Trial  and  Hearing,  14. 

c.  Efifect  Where  Evidence  Is  Conflicting,  14. 

(2)   Efifect  of  Concurring  Decisions  of  District  and  Circuit 
Courts  on  Questions  of  Fact,  14. 

CROSS   REFERENCES. 

See  the  title  Admiralty,  vol.  1,  p.  119,  and  references  there  given. 
In  addition,  see  post,  Collision;  Salvage;  Ships  and  Shipping. 
As  to  jurisdiction  in  criminal  cases,  see  post,  Criminal  Law. 

I.  Jurisdiction. 

5.  Vessel  or  Property  within  Jurisdiction — a.  Vessels — (4a}  Vessels 
in  Dock  Undergoing  Repairs. — A  vessel  used  for  navigation  and  com- 
merce does  not  cease  to  be  a  subject  of  admiralty  jurisdiction  because  tempo- 
rarily in  a  dry  dock  without  water  actually  flowing  around  her.^^^ 

b.  Torts — (3)  Nature  and  Character  of  Tort — (d)  Injuries  to  Ships  or  Ves- 
sels— bb.  Collision. — The  right  to  contribution  is  not  a  mere  incident  of  a  form 
of  procedure,  but  it  belongs  to  the  substantive  law  of  admiralty.^^a  ^  court  of 
itdmiralty  has  jurisdiction  of  a  libel  to  enforce  contribution  from  the  owner  of 
one  of  two  vessels,  which  were  both    at    fault    for    a    collision  with  a  third,  in 

136-55a.    Vessel  in  dock  undergoing  re-  ship    Jefferson,    215  U.    S.  130,    54  L.    Ed. 

pairs.— A    court    of    admiralty    has    juris-  125.   30   S.   Ct.   54.      See,    generally,     post, 

diction    of   a    libel    claiming     salvage      for  SALVAGE. 

services   rendered   by  tugs   in   subduing  a  144-98a.      Collision     —     Contribution. — 

fire    communicated    from    the    shore    to    a  The   Ira   M.   Hedges.  218  IJ.   S.  ?>('.4,   54   L. 

vessel   undergoing   repairs   in   a    dry   dock  Ed.    1039,    31    S.    Ct.    17;    Erie    R.    Co.    v. 

from    which    all     the      water      had      been  Western  Transp.  Co.,  204  U.  S.  220,  51  L. 

emptied.      Decree,    The    Jefferson    (D.    C.  Ed.  450.  See  the  title  ADMIRALTY,  vol. 

1908),    158    F.   358,    reversed.     The    Steam-  1,   p.   142. 

10 


Vol.  I. 


ADMIRALTY. 


144-145 


favor  of  the  charterer  of  the  other  vessel  at  fault,  who  has  paid  a  judgment 
recovered  against  him  in  a  suit  at  common  law,  founded  upon  the  wrong,  to 
which  the  other  wrongdoer  was  not  made  a  party.^^^ 

(e)  Injuries  on  Land  Caused  by  Ships  or  Vessels. — Whether  a  tort  be  mari- 
time or  nonmaritime  must  be  determined  by  the  character  and  locality  of  the 
injured  thing  at  the  time  the  tort  was  committed,  and  subsequent  facts  as  to^ 
location  furnish  no  criterion.-^  The  true  meaning  of  the  rule  of  locality  in 
cases  of  maritime  torts  is  that  the  wrong  must  be  committed  wholly  on  navi- 
gable waters,  or,  at  least,  the  substance  and  consummation  of  the  same  must 
take  place  upon  waters  within  the  admiralty  jurisdiction.  A  substantial  cause 
of  action  arising  out  of  the  wrong  must  be  complete  within  the  locality  on 
which  the  jurisdiction  depended. ^"^  Where  a  vessel  by  its  own  fault  collides 
with  and  injures  a  structure  which  is  essentially  a  land  structure  and  which 
is  maintained  and  used  as  an  aid  to  commerce  or  other  business  on  land,  the 
tort  is  nonmaritime.-*^ 


144-98b.  The  Ira  M.  Hedges,  218  U.  S. 
264,  54  L.  Ed.  1039,  31  S.  Ct.  17,  revers- 
ing Decree  The  Ira  M.  Hedges  (D.  C.) 
163  Fed.  .587.  See,  also,  post,  COL- 
LISION. 

145-2a.  Injuries  on  land  caused  by  ves- 
sel.— Johnson  v.  Chicago,  etc.,  Elevator 
Co.,  119  U.  S.  388,  30  L.  Ed.  447,  7  S.  Ct. 
254;  Martin  v.  West,  223  U.  S.  191,  56  L. 
Ed.   159,  32   S.   Ct.  42. 

A  collision  between  a  vessel  and  a  sup- 
porting pier  of  a  bridge  over  a  navigable 
waterway  of  the  United  States,  caused 
by  the  negligent  management  of  the  ves- 
sel, and  resulting  in  the  collapse  of  a 
span  of  the  bridge,  and  its  fall  into  the 
stream,  is  a  nonmaritime  tort,  and  a 
cause  of  action  arising  thereon  is  there- 
fore not  within  the  exclusive  admiralty 
jurisdiction  of  the  federal  courts,  but  the 
owner  of  the  bridge  may  pursue  the 
remedy  afforded  by  a  state  statute,  even 
though  that  law  gives  a  lien  on  the  ves- 
sel. Martin  v.  West,  222  U.  S.  191,  56 
L.  Ed.  159,  32  S.  Ct.  42,  affirming  judg- 
ment. West  V.  Martin,  97  P.  1102,  51 
Wash,  85,  21  L.   R.   A.   (N.   S.)   324. 

It  may  be  that  the  damage  ensuing 
from  the  collision  was  aggravated  by  the 
fact  that  the  span  fell  into  the  stream  and 
was  subjected  to  the  force  of  the  cur- 
rent and  submerged  in  the  water,  but,  if 
that  be  so,  it  furnishes  no  criterion  for 
determining  whether  the  tort  was  mari- 
time or  nonmaritime,  because  that  ques- 
tion must  be  resolved  according  to  the 
locality  and  character  of  the  injured 
thing — the  bridge  with  its  spans  and  sup- 
porting piers — at  the  time  of  the  col- 
lision. It  was  then  that  the  causal  in- 
fluence of  the  negligent  management  of 
the  vessel  took  effect  injuriously  and 
gave  rise  to  a  cause  of  action,  and  what 
followed  is  important  only  as  bearing 
upon  the  extent  of  the  injury  and  result- 
ing liability.  Martin  v.  West,  222  U.  S. 
191,   197,   5fi   L.    Ed.    159,   32    S.    Ct.   42. 

145-2b.  Rule  construed  and  explained. — 
Ex  parte   Phenix   Ins.   Co.,   118   U.   S.   filO, 


30  L.  Ed.  274,  7  S.  Ct.  25;  Cleveland,  etc., 
R.  Co.  V.  Cleveland  Steamship  Co.,  208  U. 
S.  316,  319,  52  L.  Ed.  508,  28  S.  Ct.  414, 
citing  The  Plymouth,  3  Wall.  20,  18  L.  Ed. 
125. 

"The  rule  stated  has  been  accepted 
generally  by  bench  and  bar,  and  has 
never  been  overruled,  though  counsel  ex- 
press the  hope  that  it  may  be  because  of 
our  decision  in  The  Blackheath,  195  U. 
S.  361,  49  L.  Ed.  236.  In  that  case  Mr. 
justice  Brown,  in  concurring,  announced 
the  view  that  the  effect  of  the  decision 
was  to  overrule  what  had  previously  been 
laid  down  in  the  cases  we  have  cited. 
But  the  court  held  that  the  opinion  was 
not  opposed  to  the  prior  adjudications, 
and,  without  entering  into  the  elements 
of  distinction  between  that  case  and  The 
Plymouth,  3  Wall.  20,  37,  18  L.  Ed.  125, 
said:  'It  is  enough  to  say  that  we 
are  now  dealing  with  an  injury  to  a 
government  aid  to  navigation  from 
ancient  times  subject  to  the  admiralty,  a 
beacon  emerging  from  the  water,  injured 
by  the  motion  of  the  vessel,  by  a  con- 
tinuous act  beginning  and  consummated 
upon  navigable  water,  and  giving  char- 
acter to  the  effects  upon  a  point  which  is 
only  technically  land,  through  a  connec- 
tion at  the  bottom  of  the  sea.' "  Cleve- 
land, etc.,  R.  Co.  z'.  Cleveland  Steamship 
Co.,  208  U.  S.  316,  321,  52  L.  Ed.  508,  28 
S.    Ct.    414. 

145-2C.  Land  structure. — Martin  v.  West, 
222  U.  S.  191,  56  L.  Ed.  159,  32  S.  Ct.  42; 
The  Blackheath,  195  U.  S.  361,  49  L.  Ed. 
236;  Cleveland,  etc..  R.  Co.  v.  Cleveland 
Steamship  Co..  208  U.  S.  316,  52  L.  Ed. 
508,  28  S.  Ct.  414;  The  Troy.  208 
U.  S.  321,  52  L.  Ed.  512,  28  S.  Ct. 
416;  Johnson  ■:'.  Chicago,  etc..  Ele- 
vator Co.,  119  U.  S.  388,  30  L.  Ed.  447, 
7  S.  Ct.  254;  Knapp,  etc.,  Co.  v.  Mc- 
Caffrey, 177  U.  S.  638,  44  L.  Ed.  921; 
The  Winnebago,  205  U.  S.  354.  51  L.  Ed. 
836:  Martin  v.  West,  222  U.  S.  191,  197, 
56  L.  Ed.  159,  32  S.  Ct.  42;  The  Plymouth, 
3  Wall.  20.  18  L.  Ed.  125;  The  Troy,  208 


1 1 


156 


ADMIRALTY. 


Vol.  I. 


II.  Maritime  Law. 

The  power  of  congress  to  legislate  upon  the  subject  of  maritime  law  has 
been  derived  both  from  the  power  to  regulate  commerce  and  from  the  clause 
in  the  constitution  extending  the  judicial  power  to  "all  cases  of  admiralty  and 
maritime  jurisdiction/'^s^  In  the  absence  of  congressional  legislation,  a  state 
mav  legislate  in  regard  to  the  duties  and  liabilities  of  its  citizens  and  corpora- 
tions while  on  the  high  seas  and  not  within  the  territory  of  any  other  sov- 
creign.ss"     Accordingly,    it    has    been    held    that    a    statute  giving  damages  for 


U.  S.  321,  52  L.  Ed.  512.  28  S.  Ct.  416; 
Richardson  z:  Harmon,  222  U.  S.  96,  101, 
56  L.  Ed.  110,  32  S.  Ct.  27.  See,  also, 
post,  COLLISION. 

"Prior  to  the  18th  section  of  the  act  oi 
June  26,  1884,  23  Stat,  at  L.,  pp.  53,  57, 
(chap.  121  U.  S.  Comp.  Stat.  1901,  pp. 
2804,  2945),  it  had  been  the  settled  law 
that  the  district  court,  sitting  as  a  court 
of  admiralt^^  had  no  jurisdiction  to  try 
an  action  for  damages  against  a  ship- 
owner, arising  from  a  fire  on  land,  com- 
municated by  the  ship,  or  from  a  col- 
lision between  the  ship  and  a  structure 
on  land,  such  as  a  bridge  or  pier.  The 
tort  in  both  cases  would  have  been  a  non- 
maritime  tort,  and,  as  such,  not  within 
the  cognizance  of  an  admiralty  court. 
The  Plymouth.  3  Wall.  20,  18  L.  Ed.  125; 
The  Troy,  208  U.  S.  321,  52  L.  Ed.  512. 
28  S.  Ct.  416."  Richardson  v.  Harmon, 
222  U.   S.  96,  56  L.   Ed.  110,  32  S.  Ct.  27. 

Abutment  to  bridge. — A  court  of  ad- 
miralty has  no  jurisdiction  of  a  libel  in 
rem  against  a  vessel,  based  on  injuries 
inflicted  to  the  piers  or  abutments  of  a 
railroad  bridge  spanning  a  navigable 
stream,  to  the  piling  placed  around  the 
center  abutment  in  order  to  protect  ves- 
sels from  injury,  and  to  a  shore  dock  or 
wharf.  Cleveland,  etc..  R.  Co.  v.  Cleve- 
land Steamship  Co..  208  U.  S.  316.  52  L- 
Ed.    508.    28    S.    Ct.    414. 

Drawbridge. — Redress  can  not  be  af- 
forded in  admiralty  for  injuries  inflicted 
by  a  colliding  A-essel  upon  the  drav.f^  of  a 
bridge  over  a  navigable  stream,  and  to 
its  center  pier  protection.  The  Troy.  208 
U.   S.   321.  52   L.    Ed.   512,  28   S.   Ct.   416. 

Surface  borings. — A  collision  in  a 
navigable  river  between  vessels  and 
the  surface  part  of  borings  made  to  lo- 
cate an  aqueduct  under  the  bed  of  the 
river  for  municipal  purposes  is  not  in  any 
sense  maritime,  and  a  suit  to  recover  dam- 
ages for  injury  to  such  borings  is  not 
within  the  admiralty  jurisdiction.  De- 
cree, The  Poughkeepsie  CD.  C).  162  F. 
494;  The  Homer  Ramsdell.  Id.,  affirmed. 
Phoenix  Const.  Co.  v.  Steamer  Pough- 
keensie.  212  U.   S.  558.   53   L.   Ed.   651.  " 

Warehouse. — This  is  well  illustrated 
in  Johnson  z'.  Chicago.  etc.,  Eleva- 
tor Co.,  119  U.  S.  388,  30  L.  Ed.  447. 
7  S.  Ct.  254.  There,  the  jib  bootn  of  a 
schooner,  in  the  Chicago  River,  was  neg- 
ligently driven  through  the  wall  of  a  ware- 
house on   adjacent  land,  whereby  a  large 


quantity  of  shelled  corn,  stored  in  the 
warehouse,  ran  out  into  the  river  and  was 
lost.  It  was  held  that  the  substance  and 
consummation  of  the  wrong  took  place 
on  land  and  that  the  tort  was  nonmari- 
time,  although  the  damage  inflicted  con- 
sisted chiefly  of  the  loss  of  the  corn.  Other 
applications  of  the  same  principle  are 
shown  in  The  Strabo,  90  Fed.  Rep.  110, 
and  The  Haxby,  95  Fed.  Rep.  170.  Sec 
Martin  v.  West,  222  U.  S.  191,  197,  56  L. 
Ed.  159,  32  S.  Ct.  42;  Cleveland,  etc.,  R. 
Co.  f.  Cleveland  Steamship  Co..  208  U. 
S    316,  319,  52  L.  Ed.  508,  28  S.   Ct.  414. 

156-58a.  The  Hamilton,  207  U.  S.  398, 
52  L.  Ed.  264,  28  S.  Ct.  133,  citing  Butler 
v.  Boston,  etc..  Steamship  Co.,  130  U.  S. 
527,  558,  32  L.  Ed.  1017,  9  S.  Ct.  612. 

156-58b.  Power  of  state  to  legislate. — 
The  Hamilton,  207  U.  S.  398,  52  L.  Ed. 
264,  28  S.  Ct.  133. 

And  as  the  state  courts  in  their  de- 
cisions would  follow  their  own  notions 
about  the  law  and  might  change  them 
from  time  to  time,  it  would  be  strange 
if  the  state  might  not  make  changes  by 
its  other  mouthpiece,  the  legislature.  The 
same  argument  that  deduces  the  legisla- 
tive power  of  congress  from  the  juris- 
diction of  the  national  courts,  tends  to 
establish  the  legislative  power  of  the 
state  where  congress  has  not  acted.  The 
Hamilton,  207  U.  S.  398,  404,  52  L.  Ed. 
264,   28   S.    Ct.    133. 

So  far  as  the  objection  to  the  state  law 
is  founded  on  the  admiralty  clause  in  the 
constitution,  it  would  seem  not  to  mat- 
ter whether  the  accident  happened  near 
shore  or  in  mid-ogean.  notwithstanding^ 
some  expressions  of  doubt.  The  same 
conclusion  was  reached  in  McDonald  z'. 
Mallory.  77  N.  Y.  546,  where  the  death 
occurred  on  the  high  seas.  Sherlock  v. 
Ailing,  93  U.  S.  99,  23  L.  Ed.  819,  rein- 
forces Chase's  case,  and  answers  any 
argument  based  on  the  power  of  con- 
gress over  commerce,  as  to  which  we 
hardly  need  refer  also  to  Coolcy  tj.  Board 
of  Wardens,  12  How.  299,  13  L.  Ed.  096; 
Ex  parte  McNeil,  13  Wall.  236,  20  L. 
Ed.  624;  Wilson  z:  McNamee.  102  U.  S. 
572.  26  L.  Ed.  234,  and  Homer  RamsdelT 
Transp.  Co.  ta  La  Compagnie  Generale 
Transatlantique,  182  U.  S.  406,  45  L.  Ed. 
1155.  concerning  state  pilotage  laws.  The 
Hamilton,  207  ""U.  S.  398,  404.  52  L.  Ed- 
264.    28    S.    Ct.   133. 


12 


Vol.  I. 


ADMIRALTY 


156-163 


death  caused  by  a  tort  might  be  enforced    in    a    state  court,  although  the  tort 
was  committed  at  sea.^^*^ 

III.  Procedure. 

E.  Appearance,  -Process  and  Attachment — 3.  Attachment — h.  Irreg- 
ular Writ  as  Protecting  Ojficer. — Although  a  writ  in  the  usual  form  of  a 
monition  and  warrant  of  arrest  in  a  suit  in  rem,  the  court  having  power  to 
issue  it  in  a  proper  case,  may  have  been  irregularly  issued,  a  marshal  is'  au- 
thorized and  bound  to  act  thereunder  if  it  comes  into  his  hands  as  an  appar- 
ently valid  writ.'^^     If  process  in  rem  is  apparently  valid  and  it  does  not  appear 


156-58C.  Statute  giving  damages  for 
death  by  wrongful  act. — The  Hamilton, 
307  U.  S.  398,  52  L.  Ed.  264,  28  S.  Ct.  133, 
citing  American  Steamboat  Co.  :•.  Chase, 
16    Wall.    522,   21    L.    Ed.    369. 

Applying  to  a  claim  for  a  death  on  the 
high  seas,  due  to  a  tortious  collision  of 
two  vessels  belonging  to  Delaware  cor- 
porations, the  provision  of  Del.  act  of 
January  26,  1886,  as  amended  by  the 
act  of  ^larch  9,  1901,  authorizing  per- 
sonal representatives  to  maintain  an  ac- 
tion and  recover  damages  for  a  death 
occasioned  bj^  unlawful  violence  or  neg- 
ligence, does  not  render  such  provision 
repugnant  to  either  the  commerce  or 
admiralty  clauses  of  the  federal  constitu- 
tion, where  congress  has  not  legislated 
upon  the  subject.  The  Hamilton,  207  U. 
S.  398,  52  L.  Ed.  264,  28  S.  Ct.  133. 

A  state  law,  being  valid,  will  be  ap- 
plied in  the  admiralty.  Being  valid,  it 
creates  an  obligate,  a  personal  liability. 
This,  of  course,  the  admiralty  will  not 
disregard,  but  will  respect  the  right  when 
brought  before  it  in  any  legitimate  \\'3.y. 
Ex  parte  McNiel.  13  Wall.  2"36,  243.  20  L. 
Ed.  624:  The  Hamilton,  207  U.  S.  398.  405. 
52  L.  Ed.  264,  28  S.  Ct.  133. 

163-6a.  Irregular  writ  as  protecting  of- 
ficer.— Bryan  v.  Ker,  222  U.  S.  107,  56  L. 
Ed.  114,  32  S.  Ct.  26.  See,  also,  post, 
SUMMONS  AXD  PROCESS. 

A  writ  in  the  usual  form  of  a  monition 
and  warrant  of  arrest  in  a  suit  in  rem, 
issued  from  the  office  of  the  clerk  of  a 
federal  district  court,  and  bearing  the 
seal  of  that  court,  will  protect  the  mar- 
shal in  seizing  and  detaining  a  vessel  in 
conformity  to  the  command  of  the  wit, 
although  the  purported  signature  of  the 
deputy  clerk  was  affixed  under  an  at- 
tempted but  ineffectual  delegation  of  au- 
thority, and  although  the  case  stated  in 
the  libel  upon  which  the  writ  issued  was 
not  cognizable  as  a  suit  in  rem  in  :id- 
miralty,  but  only  as  a  personal  action 
for  damages.  Bryan  7".  Ker,  222  U.  S. 
107.  56  L.  Ed.  114,  32  S.  Ct.  26.  reversing 
judgment,  163  F.  233.  90  C.  C.  A.  179. 

Although  the  attempted  delegation  of 
authority  may  have  been  ineffectual  to 
clothe  the  person  signing  a  writ  with 
power  to  do  so,  the  marshal  is  protected 
in   executing  it,   if  it   is   in   the   usual   form 


and  bears  the  seal  of  the  court;  such  an 
irregularity  can  be  cured  by  amendment 
substituting  the  signature  of  the  person 
properly  authorized.  Bryan  v.  Ker,  222 
L'.   S.   107,  56  L.  Ed.  114,  32   S.  Ct.  26. 

"In  short,  although  thus  irregularly  is- 
sued, it  came  into  the  hands  of  the  mar- 
shal as  an  apparently  valid  writ.  Be- 
sides, this  irregularity  did  not  render  the 
writ  void,  but  voidable  merely,  for  it 
could  have  been  amended  by  substituting 
the  true  for  the  purported  signature  of 
the  deputy.  Rev.  Stat.,  §  948;  Texas,  etc., 
R.  Co.  V.  Kirk,  111  U.  S.  486,  28  L.  Ed. 
481;  Miller  v.  Texas,  153  U.  S.  535,  38 
L.  Ed.  812;  Semmes  v.  United  States,  91 
U.  S.  21,  23  L.  Ed.  193;  Cotter  v.  Ala- 
bama G.  S.  Railroad  Co.,  61  Fed.  Rep. 
747;  Long  v.  Farmers'  State  Bank,  147 
Fed.  Rep.  360;  Ambler  v.  Leach,  15  W. 
Va.  677."  Bryan  v.  Ker,  222  U.  S.  107,  56 
L.    Ed.    114,   32   S.    Ct.   26. 

The  process  that  shall  protect  an  of- 
ficer niust,  to  use  the  customary  legal  ex- 
pression, be  fair  on  its  face.  See  Conner 
T.  Long,  104  U.  S.  228,  237.  26  L.  Ed. 
723;  Matthews  v.  Densmore,  109  U.  S. 
216.  27  L.  Ed.  912;  Harding  v.  Wood- 
cock, 137  U.  S.  43.  34  L.  Ed.  580;  Stuts- 
man County  V.  Wallace,  142  U.  S.  293, 
309,  35  L.  Ed.  1018;  Marks  v.  Shoup,  181 
U.  S.  562,  45  L.  Ed.  1002;  Erskine  v. 
Hohnbach.  14  Wall.  613.  20  L.  Ed.  745; 
Haffin  V.  Mason,  15  Wall.  67],  21  L.  Ed. 
196;  Bragg  v.  Thomson.  19  So.  Car.  572; 
Goodgion  v.  Gilreath,  32  So.  Car.  388; 
Clarke  v.  May.  2  Gray  (Mass.).  410; 
People  t'.  Rix.  6  Michigan,  144;  Henline 
V.  Reese.  54  Oh.  St.  599;  Savacool  v. 
Boughton.  5  Wend.  (N.  Y.)  170.  Brvan 
r.  Ker,  222  U.  S.  107,  113.  56  L.  Ed.  114. 
32  S.  Ct.  26.  See,  generally,  the  title 
SUMMONS    AND    PROCESS. 

Liable  of  collection  of  port  for  detention 
of  vessel. — While  a  vessel  was  in  the 
custody  of  a  marshal,  the  defendant,  as 
collector  of  the  port,  acting  under  direc- 
tions from  the  secretary  of  the  treasury, 
placed  an  inspector  on  board  the  vessel 
and  thereby  assumed  a  qualified  control 
over  her.  The  custody  of  the  marshal 
was  not  disturbed  or  questioned,  or  in- 
tended to  be,  the  defendant's  purpose  be- 
ing only  to  make  sure  that  the  vessel 
would    be    detained,    according   to    the    di- 


13 


163-194 


ADULTERATION. 


Vol.  I. 


on  the  face  thereof  that  the  Hbel  on  which  it  is  issued  discloses  only  a  personal 
action  for  damages,  the  marshal  is  protected  in  executing  it.*"' 

H.  Intervention  and  Claim— 1.  Intervention.— Intervention  to  Claim 
Proceeds  of  Sale.— See  post,  "Disposition  of  Proceeds  of  Sale,"  III,  P. 

P.  Disposition  of  Proceeds  of  Sale— 1.  Right  to  Share  in  Proceeds  oe 
SAI.E.— \\'here  the  statutes  of  the  United  States  have  enabled  the  shipowner 
to  transfer  liability  to  a  fund  and  to  the  exclusive  jurisdiction  of  the  admiralty, 
ixW  claims  to  which  the  admiralty  does  not  deny  existence  must  be  recognized, 
vhether  admiralty  liens  or  not.°''^ 

R.  Reviev/ — 2.  Jurisdiction — a.  Courts — (4)  Supreme  Court. — It  is  settled 
that,  under  the  act  of  1891,  in  order  to  entitle  to  a  direct  appeal  from  the  de- 
cree' of  a  district  or  circuit  court  dismissing  a  cause  for  want  of  jurisdiction, 
the  decree  which  is  sought  to  be  reviewed  must  have  involved  the  jurisdiction 
of  the  court  below  as  a  federal  court.^s^  So  where  the  decree  of  the  lower 
court  is  founded  on  denial  of  jurisdiction  of  the  admiralty  court,  the  supreme 
court  has  jurisdiction  of  the  appeal. ^^'' 

c.  Appealable  Decisions. — See  cross  reference,  vol.  1,  p.  185. 

9.  Trial  and  Hearing — c.  Effect  Where  Evidence  Is  Conflicting — (2)  Ef- 
fect of  Concurring  Decisions  of  District  and  Circuit  Courts  on  Question  of 
fact. — See  note  28. 

ADMISSIONS. — See  post.  Declarations  and  .\dmissions  ;  Demurrer  to 
THE  Evidence;  Legal  Conclusions.  As  to  admissions  by  demurrer,  see  post. 
Demurrers.  As  to  admissions  in  pleading  by  failure  to  deny  or  traverse,  see 
post.  Pleading. 

ADMISSIONS  IN  EVIDENCE.— See  post,  Declarations  and  Admissions. 

ADMISSIONS   IN   PLEADING.— See   post,   Demurrers;    Pleading. 

ADULTERATION.— See  note  a. 


rections  of  the  secretary  of  the  treasury, 
in  the  event  that  the  custody  of  the  mar- 
shal should  be  terminated.  The  secretary 
of  the  treasury  abandoned  the  purpose  to 
detain  the  vessel,  and  the  defendant  there- 
upon withdrew  the  inspector,  the  mar- 
shal still  retaining  his  custody.  Held,  that 
the  collector  could  not  be  held  respon- 
sible for  the  destruction  of  the  vessel. 
Bryan  v.  Ker,  222  U.  S.  107,  111,  56  L. 
Ed.    114,    32    S.    Ct.    26. 

163-6b.  Process  in  rem  apparently 
valid.— Bryan  v.  Ker.  222  U.  S.  107.  56 
L.    Ed.   114,   32    S.    Ct.   26. 

180-57a.  Right  to  share  in  proceeds.— 
The  Hamilton,  207  U.  S.  398,  52  L.  Ed. 
264.  28  S.  Ct.  133.  See,  also,  post, 
SHIPS  AND  SHIPPING. 

This  is  not  only  a  general  principle, 
Andrews  v.  Wall,  3  How.  567.  573.  11  L- 
Ed.  729.  The  J.  E.  Rumbell,  148  U.  S.  1. 
15,  37  L.  Ed.  345;  Admiralty  Rule,  43; 
Cargo  Ex  Galam.  2  Moore  P.  C.  (N.  S.) 
216_.  236,  but  is  the  result  of  the  statute, 
Avhich  provides  for,  as  well  as  limits  the 
liability,  and  allows  it  to  be  proved 
against  the  fund.  The  Albert  Dumois, 
177  U.  S.  240.  260.  44  L.  Ed.  751.  See 
Workman  v.  New  York.  179  U.  S.  552, 
563,  45  L.  Ed.  314;  The  Hamilton.  207  U 
S.  398,  406,  52  L.   Ed.  264,  28  S.  Ct.  133. 


184-88a.  Review — Jurisdiction  of  su- 
preme court. — Louisville  Trust  Co.  v. 
Comingor,  184  U.  S.  18,  46  L.  Ed.  413; 
Schweer  v.  Brown,  195  U.  S.  171,  49  L. 
Ed.  144,  citing  in  The  Steamship  Jeffer- 
son. 215  U.  S.  130,  54  L.  Ed.  125,  30  S. 
Ct.  54.  See,  also,  post,  APPEAL  AND 
ERROR. 

184-88b.  Decree  founded  on  denial  of 
jurisdiction. — The  Ira  M.  Hedges,  218  U. 
S.   264,    54   L.    Ed.   1039,   31    S.   Ct.   17. 

192-28.  Concurring  decisions. — Con- 
current findings  of  both  the  courts  below 
as  tC'  the  density  of  a  fog  and  the  rate  of 
the  speed  of  a  steamship  at  the  time  of 
collision  will  not  be  disturbed  by  the  fed- 
eral supreme  court  on  appeal,  unless  such 
findings  are  so  unwarranted  by  the  evi- 
dence as  clearly  to  be  erroneous.  Judg- 
ment, La  Bourgogne,  144  F.  781,  75 
C,  C.  A.  647.  affirmed.  La  Bourgogne,  210 
U.  S.  95,  32  L.  Ed.  973,  28  S.  Ct.  664. 

194-a.  Adulteration  or  misbranding. — 
"As  is  well  known,  products  may  be  sold, 
and,  in  the  case  of  so-called  propriety 
articles,  frequently  are  sold,  under  trade 
names  which  do  not  reveal  the  ingredients 
of  the  composition  and  the  proprietors 
refrain  from  revealing  them.  ^Moreover, 
in  defining  what  shall  be  adulteration  or 
misbranding  for   the   purpose   of  the   fed- 


14 


Vol.  I.  AD] ^ ERSE  POSSESSION.  195-198 


ADULTERY,  FORNICATION  AND  LEWDNESS. 

I.  Definitions,  15. 
III.  Unlawful  Cohabitation,  15. 

B.  AMiat  Constitutes  Cohabitation.   15. 
V.  Prosecution  and  Punishment,  15. 
D.  Punishment,  15. 

3.  For  Keeping  House  of  Prostitution.   15. 

CROSS   REFERENCES. 

See  the  title  Adultery,  Fornication  and  Lewdness,  vol.  1,  p.  195,  and  ref- 
erences there  given. 

In  addition,  see  post,  White  Slave  Traffic. 

I.  Definitions. 
Concubinage  has  been  defined  to  be  a  living  in  a  state  of  illicit  sexual  inter- 
course, not  under  the  sanction  of  a  valid  or  legal  marriage.-'' 

III.  Unlawful  Cohabitation. 
B.    What  Constitutes  Cohabitation. — Living  in  State  of  Concubinage. 

— It  has  been  held  that  a  person  living  in  a  state  of  concubinage  is  leading  an 
immoral  life.^^ 

V.  Prosecution  and  Punishment. 
D.  Punishment — 3.    For    Keeping    House   of    Prostitutiox. — It  has  been 
said  that  congress  is  without  jurisdiction  to  pass  laws  prescribing  punishment 
for  keeping  a  house  of  prostitution  within  the  boundary  of  a  state.^^^ 

ADVANCEMENTS.— See  the  title  Advancements,  vol.  1.  p.  198,  and  ref- 
erences there  given. 

ADVERSE  INTEREST.— See  Adverse  Interest,  vol.  1,  p.  199.  See  post, 
Parties. 

ADVERSE  POSSESSION.— See  post,  Limitation  of  Actions  and  Ad- 
verse Possession. 

eral    act    (Food    and    Drugs    Act    of   June  lations    which    may    rightfully,    from    the 

30,  1906),  it  is  provided  that  mixtures  or  standpoint    of     morahty,      exist     between 

compounds  known  as  articles  of  food  un-  man  and  woman  in  the  matter  of  sexual 

der  their  own  distinctive  names,  not  tak-  intercourse."     United  States  v.   Bitty,  208 

ing   or   imitating   the    distinctive   name    of  U.    S.    393,    402,   52    L.    Ed.    543,   28    S.    Ct. 

another    article,    which    do     not      contain  396. 

'any    added    poisonous    or    deleterious    in-  198-16a.    Punishment  for  keeping  house 

gredients,'    shall    not    be    deemed     to      be  of   prostitution. — Keller  v.   United   States, 

adulterated  or  misbranded  if  the  name  be  213  U.  S.  138,  53  L.  Ed.  737,  29  S.  Ct.  470. 

accompanied  on  the  same  label  or  brand  "While   the   keeping   of  a   house   of  ill- 

with   a   statement   of  the   place   of  manu-  fame  is  offensive  to  the  moral   sense  yet 

facture.     C§  SV'     Savage  -v.  Jones,  225  U.  that   fact   must   not  close   the    eye  to   the 

S.  501,  532,   56   L.  Ed.   1182.  32   S.   Ct.   715.  question    whether    the    power     to     punish 

See   post,    FOOD    AND    DRUGS.  therefor    is    delegated    to    congress    or    is 

195-2a.    United    States   v.    Bitty,   208   U.  reserved    to    the    state.     Jurisdiction    over 

S.  393.  52  L.  Ed.  543,  28  S.   Ct.  396.  such     an    oflfense    comes    within    the    ac- 

197-8a.  Status  of  party  living  in  con-  cepted  definition  of  the  police  power. 
cubinage. — "The  prostitute  may.  in  the  Speaking  generally,  that  power  is  re- 
popular  sense,  be  more  degraded  in  char-  served  to  the  states,  for  there  is,  in  the 
acter  than  the  concubine,  but  the  latter  constitution,  no  grant  thereof  to  con- 
none  the  less  must  be  held  to  lead  an  gress."  Keller  v.  United  States,  213  U. 
immoral  life,  if  any  regard  whatever  be  S.  138,  144,  53  L.  Ed.  737,  29  S.  Ct.  470. 
had  to  the  views  that  are  almost  univer-  See,  also,  post,  POLICE  POWER. 
sally    held    in    this    country    as    to    the    re- 

15 


202-203 


AGISTMENT. 


\'o\.  I. 


AFFIDAVITS. 


VII.  Use  in  Evidence,  16. 

A.  Admissibility,   16. 

CROSS   REFERENCES. 

See  the  title  Affidavits,  vol.  1,  p.  200,  and  references  there  given. 
In  addition,  see  post,  AppFal  and  Error;    Courts. 

VII.  Use  in  Evidence. 

A.  Admissibility. — Ex  Parte  Affidavits. — Counsel  may  agree  that  the  ef- 
fect of  a  deposition  shall  be  given  to  an  ex  parte  affidavit  and  thereby  bind  the 
court  to  admit  it  in  evidence,  unless,  perhaps,  as  against  the  United  States. 
Such  depositions  forming  exhibits  in  departmental  reports  printed  as  congres- 
sional documents  were  not  made  evidence  in  a  suit  in  the  court  of  claims  brought 
under  the  act  of  March  1,  1907  (34  Stat,  at  L.  1055,  2290)  by  the  provisions 
of  that  act  that  such  reports  shall  be  evidence,  to  be  given  such  weight  as  the 
court  may  determine  for  them.^'^ 

AFFIRMANCE.— See  post.  Appeal  and  Error. 

AFFREIGHTMENT.— See  post,  Carriers;    Ships  and  Shipping. 

AFTER.— See  note  2. 

AGAINST  THE  STATE.— As  to  suits  against  the  state,  see  post,  Courts; 
States. 

AGENCY. — See  post.  Principal  and  Agent  ;    Public  Lands. 

AGGREGATION. — See  post,  Patents.  As  to  aggregation  of  claims  to  pro- 
A'ide  jurisdictional  amount,  see  post.  Appeal  and  Error;    Courts. 

AGGRIEVED  PARTY.— See  post.  Appeal  and  Error. 

AGISTMENT.— See  post,  Animals. 


202-3a.     Ex  parte  affidavit. — Sac  &  Fox 

Indians  v.  Sac  &  Fox  Indians,  220  U.  S. 
481,  55  L.  Ed.  552,  31  S.  Ct.  473.  See 
post.  COURTS. 

203-2.  "After  that"  synonymous  with 
"thereafter." — A  charter  granted  to  a 
raih-oad  companj^  by  the  state  of  Geor- 
gia provided:  "The  stock  of  the  said 
company  and  its  branches  shall  be  ex- 
empt from  taxation  for  and  during  the 
term  of  seven  years  from  and  after  the 
completion  of  the  said  railroads,  or  anj^ 
of  them;"  and  after  that  shall  be  subject 
to  a  tax  not  exceeding  one-half  of  one 
per  cent,  per  annum,  on  the  net  proceeds 
of   their    investments.      The    words    "after 


that,"  which  immediately  follow  the  ex- 
emption clause,  was  construed  as  synony- 
mous with  "thereafter,"  and  as  fixing  the 
time  when  that  property  which  was 
theretofore  exempt  should  be  subject  to 
the  sj'^stem  of  taxation  provided  by  the 
succeeding  clause.  The  thirty-six  year 
limitation  is  one  obviously  applicable 
only  to  the  grant  of  an  exclusive  right, 
within  a  defined  territory,  to  construct 
and  operate  railroads.  This  was  intended 
to  protect  this  pioneer  railroad  from  be- 
ing paralleled  within  that  time.  Wright 
z\  Georgia  R.,  etc..  Co.,  216  U.  S.  420,  422, 
54  L.  Kd.  544,  30  S.  Ct.  242.  See  post, 
TAXATION. 


16 


A''ol.  I. 


ALCOHOLIC  LIOUORS. 


207-209 


AGREED  CASE. 
VII.  Submission  of  Controversy,  17. 

A.  Definition  and  What  Constitutes,  17. 

CROSS   REFERENCES. 

See  the  title  Agreed  Case,  vol.  1,  p.  204,  and  references  there  given. 

VII.  Submission  of  Controversy. 

A.    Definition  and  What  Constitutes. — See  note  15. 

t 

AGREEMENT. — As  to  agreement  for  admission  of  affidavits,  see  ante,  As- 
EiDAviTs,  p.  16.  See,  also,  post,  Contracts;  Monopolies  and  Corporate 
Trusts. 

AID. — See  note  1. 

ALCOHOLIC  LIQUORS.— See  post.  Interstate  and  Foreign  Commerce; 
Intoxicating  Liquors. 


207-15.  Requesting  court  to  instruct 
verdict. — "It  was  settled  in  Beuttell  v. 
Magone,  157  U.  S.  154,  39  L.  Ed.  654, 
that  where  both  parties  request  a  per- 
emptory instruction  and  do  nothing  more, 
they  thereby  assume  the  facts  to  be  un- 
disputed and  in  effect  submit  to  the  trial 
judge  the  determination  of  the  inferences 
proper  to  be  drawn  from  them."  Empire 
State  Cattle  Co.  v.  Atchison,  etc.,  R.  Co., 
210  U.  S.  1,  8,  52  L.  Ed.  931,  28  S.  Ct.  607. 

"But  nothing  in  that  ruling  sustains 
the  view  that  a  party  may  not  request  a 
peremptory  instruction,  and  j'et,  upon  the 
refusal  of  the  court  to  give  it,  insist,  by 
appropriate  requests,  upon  the  submis- 
sion of  the  case  to  the  jury,  where  the 
evidence  is  conflicting  or  the  inferences 
to  be  drawn  from  the  testimonj'  are  di- 
vergent.'' Empire  State  Cattle  Co.  v. 
Atchison,  etc.,  R.  Co..  210  U.  S.  1,  S,  52 
L.  Ed.  931,  28  S.  Ct.  607.  See,  also,  post, 
INSTRUCTIONS;    VERDICT. 

"The  distinction  between  a  case  like  the 
one  before  us  and  that  which  was  under 
consideration  in  Beuttell  i\  Mangone.  157 
U.  S.  154,  39  L.  Ed.  654,  has  been  pointed 
out  in  several  recent  decisions  of  cir- 
cuit    courts     of    appeals.       It    was    accu- 

12    U   S   Enc— 2  17 


rately  noted  in  an  opinion  deliv- 
ered by  Circuit  Judge  Severens,  speak- 
ing for  the  circuit  court  of  appeals 
for  the  sixth  circuit,  in  Minahan  v.  Grand 
Trunk  Ry.  Co.,  138  Fed.  Rep.  37,  41,  and 
was  also  lucidly  stated  in  the  concurring 
opinion  of  Shelby,  circuit  judge,  iii  Mc- 
Cormack  v.  National  City  Bank  of  Waco, 
142  Fed.  Rep.  132,  where,  referring  to 
Beuttell  V.  Magone."  Empire  State  Cat- 
tle Co.  V.  Atchison,  etc.,  R.  Co.,  210  U. 
S.   1.    8,    52    L.    Ed.    931,   28   S.    Ct.   C07. 

209-1.  Flag  lieutenant  on  personal  staff 
of  rear-admiral. — Where  a  lieutenant  in 
the  navj-  served  as  flag  lieutenant  on  the 
personal  staff  of  a  rear-admiral,  he  is  to 
all  intents  and  purposes  an  aid  to  the 
rear-admiral,  though  not  technically 
designated  as  such;  and  is  entitled  to  the 
extra  pay  due  such  officer.  United  States 
r.  Miller.  208  U.  S.  32,  52  L.  Ed.  376,  28 
S.  Ct.  199.  See  post,  ARMY  AND 
NAVY. 

A  to  municipal  aid,  see  post,  MU- 
NICIPAL. COUNTY.  STATE  AND 
FEDERAL  AID. 

As  to  land  grants  in  aid  of  railroads,  see 
post.   PUBLIC  LANDS. 


ALIENS.  Vol.  I. 


ALIENS. 

I.  Definition  and  Status,  18. 

II.  What  Determines  Relation,  19. 

A.  Birth,  Domicile  or  Marriage,  19. 

3.  Marriage,  19. 

B.  Annexation,  19. 

C.  Conquest,  19. 

III.  Duties,  Rights  and  Powers,  19.  • 

C^.  Admission  to  Practice  Law,  19. 

D.  Suing  and  Being  Sued,  19. 

y2.  In  General,  19. 

2.  Suits  between  Aliens  and  Citizens,  19. 

a.  In  General,  19. 

3.  Personalty,  19. 

a.  Rights  under  Copyright  Law,  19. 
6.  Treaty  Rights,  19. 

e.  Treaty  with  Prussia,  19. 

f.  Treaty  with  Italy,  19. 

IV.  Pleading  and  Practice,  20. 

A.  Declaration  or  Bill,  20. 

1.  Averments  as  to  Alienage  or  Citizenship,  20. 

V.  Admission  or  Exclusion  of  Aliens  or  Immigrants,  20. 

A.  Power  of  Congress  and  States,  20. 

1.  In  General,  20. 

8.  Importation  of  Prostitutes,  20. 

B.  Classes  Excluded,  20. 

1.  Paupers,  Criminals  and  Diseased  Persons,  20. 
5.  Prostitutes,  20. 

C.  Procedure,  21. 

1.  Delegation  to  Inspector  and  Other  Officers,  or  a  Department,  21. 

c.  Finality  of   Decisions  and  Court  Review,  21. 
3.  Detention  and  Expulsion  or  Deportation,  21. 

a.  Delegation  to  Executive  Officials,  21. 

(1)  Power  ard  Finality  of  Decisions,  21. 

(2)  Departmental  Regulations,  21. 
5.  Due  Process  of  Law,  21. 

D.  Liability  of  Person  Bringing  in  Immigrants  Not  Permitted  to  Land,  22. 

1.  Liability  for  Failure  to  Adopt  Precautions  to  Prevent  Landing,  22. 

2.  Penalty  for  Bringing  in  Diseased  Aliens,  23. 

3.  Importation,  Keeping  or  Harboring  Alien  Women  for  Purpose  of 

Prostitution  or  Concubinage,  23. 

4.  Charge  for  Return  Passage,  24. 

CROSS  REFERENCES. 

See  the  title  Ai^iEns,  vol.  1,  p.  210,  and  references  there  given. 

In    addition,    see    post.  Executors   and    Administrators;     International 

I,AW. 

I.  Definition  and  Status. 

An  alien  has  been  defined    to    be    "one    born    out  of  the  jurisdiction  of  the 

18 


Vol.  I.  ALIENS.  212-239 

United  States,  and  who  has  not  been  naturahzed  under  their  constitution  and 
laws."^^ 

II.  What  Determines  Relation. 

A.  Birth,   Domicile  or  Marriage — 3.    jNIarriage;. — See  post,  Citizenship. 

B.  Annexation. — See  post.  International  Law. 

C.  Conquest. — See  post,  International  Law. 

III.  Duties,  Rights  and  Powers. 

C^.  Admission  to  Practice  Law. — An  alien  may  be  denied  admission  to 
practice  law  on  the  ground  that  he  does  not  possess  the  political  cjualifications 
required  by  law.^"^^ 

D.  Suing  and  Being  Sued-*-J<.  In  General. — Alien  citizens,  by  the  poHcy 
find  practice  of  the  courts  of  this  country,  are  ordinarily  permitted  to  resort  to 
the  courts   for  the  redress  of  wrongs  and  protection  of   their  rights.-"'' 

2.  Suits  between  Aliens  and  Citizens — a.  In  General. — What  property  may 
be  removed  from  a  state  and  subjected  to  the  claims  of  alien  creditors  is  a 
matter  of  comity  and  not  a  matter  of  absolute  right  in  favor  of  creditors  of 
other  sovereignty,  when  citizens  of  a  local  state  or  country  are  asserting  rights 
against  property  within  the  local  jurisdiction.^^a 

3.  Personalty. — a.    Rights  under  Copyright  Laiv. — See  post,  Copyright. 

6.  Treaty  Rights — e.  Treaty  with  Prussia. — Rights  of  Creditors  Citizens 
of  Prussia. — The  right  of  citizens  of  Prussia  under  the  treaty  of  May  1st,  1828 
(8  Stat,  at  L.  378),  art.  1,  to  attend  to  their  affairs  in  the  United  States,  and 
for  that  purpose  to  enjoy  the  same  security  and  protection  as  natives  in  the 
country  wherein  they  reside,  is  not  violated  by  the  refusal  of  a  state  court,  on 
grounds  of  public  policy,  to  apply  the  doctrine  of  comity  so  as  to  subject  by 
^i.ttachment,  to  the  payment  of  an  indebtedness  due  a  German  corporation  from 
a  German  subject,  a  fund  within  the  state  to  which  one  of  its  own  citizens  as- 
serts a  claim,  where  the  efifect  of  judgment  in  favor  of  the  corporation  would 
be  to  remove  the  fund  to  a  foreign  country,  there  to  be  administered  in  favor 
of  the  foreign  creditors. ^^^ 

f.  Treaty  ivith  Italy. — Death  by  Wrongful  Act. — Stipulations  securing  equal- 
ity with  the  natives  to  the  citizens  of  each  of  the  contracting  parties  in  respect  of 
protection   and  security  of  person   and  property,  contained   in  treaty  Nov.    18, 

212-la.     Definition. — Low  Wah   Suey  v.  ratior.    is    not    deprived    of    its    property 

Backus,   22o  U.  S.  460,  56  L.   Ed.   1165,  33  without    due   process    of   law,    contrary   to 

S.  Ct.  734.  United     States     Constitution,     Fourteenth 

220-27a.      Admission   to   practice   law. —  Amendment,     bj'   the     refusal    of   a     state 

Bosque  v.  United   States,  209  U.   S.  91,  52  court,    on    grounds    of    public    policy,    to 

L.   Ed.   698,  28   S.   Ct.   501.     See  post,  AT-  apply  the  doctrine  of  comity  so  as  to  sub- 

TORNEY    AND    CLIENT;     CITIZEN-  ject  by  attachment,  to  the  payment  of  an 

SHIP;   PUBLIC   OFFICERS.  mdebtedness   due  the  corporation   from  a 

220-27b.       Right      of    aliens    to      sue. —  German   subject,   a  fund  within   the   state 

Disconto   Gesellschaft  v.  Umbreit,  208   U.  to   which    one   of   its   own   citizens   asserts 

S.  570,  52  L  Ed.  625,  28  S.  Ct.  337.  a   claim,   where  the   effect   of  judgment  in 

At  common  law  an  alien  enemy  can  not  favor  of  the  corporation  would  be  to  re- 
maintain  a  suit  in  his  own  name,  but  the  move  the  fund  to  aforeign  country,  there 
court  would  have  jurisdiction  to  enquire  to  be  administered  in  favor  of  the  foreign 
whether  such  disability  in  fact  existed  creditors.  Disconto  Gesellschaft  v.  Um- 
and  the  case  would  not  be  dismissed  on  breit.  208  U.  S.  570,  52  L  Ed.  625,  28  S. 
motion  for  want  of  jurisdiction.  Venner  Ct.  337.  See  post,  DUE  PROCESS  OF 
V.  Great  Northern  R.  Co.,  209  U.  S.  24,  52  LAW. 
L.  Ed.  666,  28  S.  Ct.  328.  239-89a.     Rights  of  creditors  citizens  of 

221-32a.  Disconto  Gesellschaft  v.  Um-  Prussia.— Disconto  Gesellschaft  v.  Um- 
breit, 208  U.  S.  570,  52  L  Ed.  625.  28  S.  breit,  208  U.  S.  570,  52  L  Ed.  625,  28  S- 
Ct.  337.  Ct.  337. 


Due  process  of  law. — A  German  corpo- 


19 


239-250 


ALIENS. 


Vol.  I. 


1871,  17  Stat.  845,  between  the  United  States  and  Italy,  do  not  require  a  state 
to  give  nonresident  alien  relatives  of  an  Italian  subject  a  right  of  action  for 
damages  for  his  death,  although  such  action  is  afiforded  to  native  resident  rela- 
tives and  though  the  existence  of  such,  an  action  may  indirectly  promote  his 
safety.  89b 

IV.  Pleading  and  Practice. 

A.  Declaration  or  Bill — 1.  Averments  as  to  Alienage  or  Citizenship. — 
A  declaration  averring  that  plaintiffs  are  aliens  and  the  defendant  a  citizen  of 
Alaryland  is  a  sufficient  averment  of  alienage  and  citizenship  to  give  juris- 
diction.^^'' 

V.    Admission   or  Exclusion  of  Aliens   or  Immigrants. 

A.  Power  of  Congress  and  States — 1.  In  GENERAE.^Congress  has  the 
power  to  exclude  aliens  from  the  United  States ;  to  prescribe  the  terms  and 
conditions  on  which  they  may  come  in;  to  establish  regulations  for  sending 
out  of  the  country  such  aliens  as  have  entered  in  violation  of  law,  and  to  com- 
mit the  enforcement  of  such  conditions  and  regulations  to  executive  officers. ^•^•'' 

8.    Importation  of  Prostitutes. — See  post,  "Importation,  Keeping  or  Har-. 
boring  Alien  Women  for  Prostitution  or  Concubinage,"  Vl,  D,  3. 

B.  Classes  Excluded — 1.  Paupers,  Criminals  and  Diseased  Persons. — 
See  note  '26. 

5.  Prostitutes. — Congress  can  forbid  the  entry  and  order  the  subsequent 
deportation   of   professional   prostitutes. -^^ 

Wife  of  Citizen.— A  foreign-born  Chinese  woman,  though  married  to  a 
Chinaman  of  American  birth,  is  an  alien,  within  the  meaning  of  the  provisions 
of  the  act  of  February  20,  1907,  as  amended  by  the  act  of  March  26,  1910,  for 
the  deportation  of  any  alien  found  as  an  inmate  of  a  house  of  prostitution 
within  three  years  subsequent  to  her  entry  into  the  United  States. -'^^ 


239-89b.  Treaty  with  Italy. — Maiorano 
V.  Baltimore,  etc.,  R.  Co.,  213  U.  S.  268,  53 
L.  Ed.  792,  29  S.  Ct.  424,  affirming  65  Atl. 
1077,  216  Pa.  402,  116  Am.  St.  Rep.  778. 

241-94a.  Allegation  of  alienage. — Wa- 
ters T'.  Barrill,  j31  U.  S.,  appx.,  Ixxxiv,  18 
L.  Ed.  878. 

245-13a.  Keller  v.  United  States,  213 
U.  S.  138,  53  L.  Ed.  737,  29  S.  Ct.  470,  cit- 
ing Turner  v.  Williams,  194  U.  S.  279,  289, 
48  L.  Ed.  979,  983,  24  S.  Ct.  719.  See, 
also,  Fong  Yue  Ting  v.  United  States,  149 
U.  S.  G98,  708,  37  L.  Ed.  905,  911,  13  S. 
Ct.  1016;  Head  Money  Cases,  112  U.  S. 
580,  591,  28 'L.  Ed.  798,  5  S.  Ct.  247; 
Lees  V.  United  States,  150  U.  S.  476,  480, 
37  L.  Ed.  1150,  14  S.  Ct.  163;  United 
States  V.  Bitty,  208  U.  S.  393,  52  L.  Ed. 
543,  28  S.  Ct.  396. 

"That  Congress  may  pass  laws  forbid- 
ding aliens  or  classes  of  aliens  from 
coming  within  the  United  States,  and  may 
provide  for  the  expulsion  of  aliens  or 
classes  of  aliens  from  its  territory,  and 
may  devolve  upon  the  executive  depart- 
ment or  subordinate  officials  the  right  and 
duty  of  identifying  and  arresting  such 
persons,  is  settled  by  previous  decisions 
of  this  court.  Wong  Wing  v.  United 
States,  163  U.  S.  228,  237,  41  L.  Ed.  140, 
16  S  Ct.  977."  Low  Wah  Suey  v.  Backus, 
225  U.  S.  460,  56  L.  Ed.  1165,  32  S.  Ct.  735. 


249-26.  Exclusion  of  diseased. — Con- 
gress, in  the  exercise  of  its  authority  over 
foreign  commerce  and  of  its  power  to 
regulate  immigration,  could  lawfully  en- 
act the  provisions  of  Act  March  .3,  1903, 
c.  1012,  §  9,  32  Stat.  1215,  which  make  it 
unlawful  to  bring  into  the  United  States 
any  alien  afiflicted  with  a  loathsome,  or 
dangerous  contagious  disease,  provide  for 
the  exacting  of  a  penalty  for  bringing  in  an 
alien  so  afflicted,  and  authorize  the  refusal 
of  clearance  papers  to  a  vessel  while  any 
such  fine  imposed  upon  it  remains  un- 
paid. Judgment,  International  Mercantile 
Marine  Co.  t.  Stranahan  (C.  C.  1907)  155 
F.  428,  affirmed.  Oceanic  Steam  Nav.  Co. 
V.  Stranahan,  214  U.  S.  320,  53  L.  Ed.  1013. 
29  S.  Ct.  671;  International,  etc..  Marine 
Co.  V.  Stranahan,  214  U.  S.  344,  53  L.  Ed. 
1024.   29   S.   Ct.   678. 

250-28a.  Prostitutes.— Keller  v.  United 
States,  213  U.  S.  138,  53  L.  Ed.  737,  29  S. 
Ct.  470;  Low  Wah  Suey  v.  Backus, 
225  U.  S.  460,  56  L.  Ed.  1165,  32  S.  Ct.  734. 
See  post,  "Detention  and  Expulsion  or 
Deportation.''  V,  C,  3;  "Due  Process  of 
Law,"  V,  C,  5;  "Importation,  Keeping  or 
Harboring  Alien  Women  for  Purpose  of 
Prostitution,"  V,  D,  3. 

250-28b.  Wife  of  citizen. — Low  Wah 
Suey  V.  Backus,  225  U.  S.  460,  56  L.  Ed. 
1165,  32  S.  Ct.  734;  Yeung  How  v.  North, 
223  U.  S.  705,  56  L.  Ed.  621,  32  S.  Ct.  517. 


20 


\'ol.  I.  ALIEXS.  2  53-256 

C.  Procedure — 1.  Delegatiox  to  Ixspector  and  Other  Officers,  or  a 
Department — c.  Finality  of  Decisions  and  Court  RevienK — Congress  may  de- 
volve upon  the  executive  department  or  subordinate  officers  the  right  and  duty 
of  identifying  and  arresting  such  ahens  as  have  entered  the  United  States  in 
violation  of  law,  and  such  hearings  before  executive  officers  may  be  made  con- 
clusive when  fairly  conducted.  In  order  to  successfully  attack  by  judicial  pro- 
ceedings the  conclusions  and  orders  made  upon  such  hearings  it  must  be  shown 
that  the  proceedings  were  manifestly  unfair,  that  the  action  of  the  executive 
officers  was  such  as  to  prevent  a  fair  investigation,  or  that  there  was  a  man- 
ifest abuse  of  the  discretion  committed  to  them  by  the  statute.  In  other  cases 
the  order  of  the  executive  officers  within  the  arithority  of  the  statute  is  final.^^^ 

3.  Detention  and  Expulsion  or  Deportation — a.  Delegation  to  Executive 
Officials — (1)  Pozuer  and  Finality  of  Decisions. — See  ante,  "Finality  of  De- 
cisions and  Court  Review,"  V,  C,  1,  c. 

(2)  Depiartmental  Regulations. — The  rules  of  the  secretary  of  commerce  and 
labor  governing  the  deportation  of  aliens  found  as  inmates  of  houses  of  prosti- 
tution within  three  years  subsequent  to  their  entry  into  the  United  States  are 
not  so  arbitrary  as  to  be  beyond  his  power,  under  the  act  of  February  20,  1907, 
as  amended  by  the  act  of  March  26,  1910,  because  provision  is  thereby  made 
for  an  examination  in  the  absence  of  counsel,  where  they  also  provide  for  a 
hearing  at  which  the  alien  shall  have  opportunity  to  show  cause  why  she  should 
not  be  deported,  and  for  her  apprisal  at  such  stage  of  the  proceedings  as  the 
person  before  whom  the  hearing  was  held  shall  deem  proper  that  she  may  there- 
after be  represented  by  counsel,  and  for  the  forwarding  to  the  department  of 
all  papers,  including  the  minutes  and  any  written  argument,  submitted  by 
counsel.^^'^ 

5.  Due  Process  of  Law. — An  alien  who  lawfully  comes  into  the  United 
States  may  be  deported  under  the  act  of  Feb.  20,  1907,  as  amended  March  26, 
1910,  without  a  hearing  of  a  judicial  character.-* ^^ 

Assistance  of  Counsel. — Proceedings  resulting  in  the  deportation  of  an 
alien  found  as  an  inmate  of  a  house  of  prostitution  within  three  years  subse- 
quent to  her  entry  into  the  United  States  are  not  wanting  in  due  process  of 
law  because  she  had  no  counsel  when  first  under  examination,  where  such  an 
examination  is  within  the  authority  of  the  act  of  Feb.  20,  1907,  as  amended 
by  act  of  March,  1910,  and  at  subsequent  stages  in  the  proceeding,  and  before 
the  hearing  was  closed  or  the  orders  for  deportation  made,  she  had  the  as- 
sistance and  advice  of  counsel.'*^*' 

Attendance  of  Witnesses. — The  immigration  officer's  lack  of  power  to 
issue  process  to  compel  the  attendance  of  witnesses  does  not  render  invalid, 
as  denying  due  process  of  law,  the  proceedings  had  conformably  to  the  act  of 
February  20,  1907,  as  amended  by  the  act  of  March  26,  1910,  resulting  in  the 
deportation  of  an  alien  found  as  an  inmate  of  a  house  of  prostitution  within 
three  years  subsequent  to  her  entry  into  the  United  States.'*^'^ 

253-35a.       Finality      of      decision. — Low  How  v.   North,   223   U.   S.   705,   56   L.   Ed. 

Wah  Suey  v.   Backus,  225  U.  S.  460,  56  L.  621.  32  S.  Ct.  '517. 

Ed.   1165,  32   S.   Ct.   734;   United  Slates  v.  256-44b.     Assistance     of    counsel. — Low 

Bitty.  208   U.   S.   393,   52   L.    Ed.   543,  28   S  Wah   Suey  v.  Backus,  225  U.  S.  460,  56  L. 

Ct.  396;  Tang  Tun  v.  Edsell,  223  U.  S.  673,  Ed.     1165.    32     S.    Ct.     734.      Act     of     Feb. 

56  L.  Ed.  606,  32  S.   Ct.  359.  20,  1907   (34  Stat,  at  L.  898,  chap.  1134,  U. 


255-40a.      Departmental      regulations. — 


S.   Comp.    Stat.   1911,   p.   499)    as  amended 


Tr        AAyr;       x.eF-""--c.x       .c^uxcxuuix:,.—  ^    ^^      j^    ^6.    1910    (36    Stat,    at    L 

^fiT  ^H    i?^'^o-c?rh'"';a    '          ^-         '  263,    chap.    128,    U.    S.    Comp.    Stat.    Supp. 

.,6  L.    bd.  110,.,  .3„   b.  Lt.    ,..4.  jgjj_  p    gQj^_     g^^  p^g^^   ^^^  PROCESS 

256-44a.     Due     process     of     law. — Low  OF  LAW. 

Wah  Suey  v.  Backus,  225  U.  S.  460,  56  L.  256-44c.      Attendance      of     witnesses. — 

Ed.   1165,   32   S.   Ct.  734;   following  Yeung  Low  Wah   Suey  r.   Backus,  225  U.   S.  460, 

21 


256 


ALIENS. 


Vol.  1. 


Punishment  of  Perjured  Witness. — The  fact  that  the  statute  makes  no 
provision  for  the  punishment  of  a  witness  giving  false  testimony  against  the 
detained  person  is  not  an  infraction  of  constitutional   right-^^*^ 

D.  Liability  of  Person  Bringing  in  Immigrants  Not  Permitted  to 
Land — 1.  Liability  for  Failure  to  Adopt  Precautions  to  Prevent  Land- 
lAjG  — Liability  of  Vessel,  Owner,  or  Master. — The  provisions  of  Act 
March  3,  1903,  c.  1012,  §  18,  32  Stat.  1217  [U.  S.  Comp.  St.  Supp.  1905,  p. 
283],  requiring  officers  of  any  vessel  bringing  an  alien  to  the  United  States  to 
'"adopt  due  precautions"  to  prevent  the  landing  of  any  such  alien  at  any  time 
or  place  other  than  that  designated  by  the  immigration  officers,  and  making 
any  person  in  charge  of  a  vessel  liable  to  prosecution  if  he  shall  "land  or  per- 
mit to  land"  any  alien  except  at  such  designated  time  and  place,  are  to  be 
construed  together,  and  the  master  of  a  ship  cannot  be  held  liable  for  the  un- 
lawful landing  of  an  alien  from  his  vessel,  if  he  adopted  due  precautions  to 
prevent  it.^^'*  Of  course  it  is  possible  for  a  master  unlawfully  to  permit  an 
alien  to  land,  even  if  the  alien  is  a  sailor  ;^-^''  but  the  ordinary  case  of  a  sailor 


56  L.  Ed.  1165,  32  S.  Ct.  734,  following 
Yeung  How  v.  North,  223  U.  S.  705,  56 
L  Ed.  621,  32  S.  Cl.  517.  See  post,  DUE 
PROCESS   OF  LAW;  WITNESSES. 

256-44d.  Punishment  of  perjured  wit- 
ness.—Low  Wall  Suey  v.  Backus.  225  U. 
S.  460.  56  L.  Ed.  1165,  32  S.  Ct.  734;  Yeung 
How  V.  North.  223  U.  S.  705,  56  L.  Ed. 
C2],  32  S.  Ct.  517. 

256-45a.  Liability  of  vessel,  owner  or 
master. — Taylor  v.  United  States,  207 
U.    S.   120,  52   L.   Ed.   130,   28   S.    Ct.  53. 

"Bringing  to  the  United  States,"  in  the 
phrase  "bringing  an  alien  to  the  United 
States,"  taken  literally  and  nicely,  means, 
as  a  similar  phrase  in  §  8  plainly  means, 
transporting  with  intent  to  leave  in  the 
United  States  and  for  the  sake  of  trans- 
port— not  transporting  with  intent  to 
carry  back,  and  merely  as  an  incident  to 
employment  on  the  instrument  of  trans- 
port. Taylor  v.  United  States,  207  U.  S. 
120,   52   L.   Ed.   130,   28   S.   Ct.   53. 

Literally,  the  words  "to  land"  means  to 
go  ashore.  To  avoid  certain  inconven- 
iences the  government  and  the  courts  say 
that  sailors  do  not  land  unless  they  per- 
manently leave  the  ship.  "Landing  from 
such  vessel"  takes  place  and  is  complete 
the  moment  the  vessel  is  left  and  the 
shore  reached.  Taylor  v.  United  States, 
207   U.   S.   120,   52   L.   Ed.   130,  28   S.   Ct.   53. 

256-45b.  Unlawful  landing — Even  of 
sailor.— Taylor  v.  United  States.  207  U.  S. 
120,  52  L   Ed.  130,  28   S.  Ct.  53. 

In  Immigration  Act  March  3,  1903,  c. 
1012,  §  18.  32  Stat.  1217  [U.  S.  Comp.  St. 
Supp.  1905,  p.  283],  which  requires  officers 
of  vessels  to  take  due  precautions  to  pre- 
vent aliens  from  landing  therefrom,  ex- 
cept at  the  time  and  place  designated  by 
the  immigration  officers,  the  word  "aliens" 
is  used  in  its  broad  and  full  meaning  and 
is  not  restricted  to  alien  immigrants,  but 
includes  as  well  aliens  who  are  members 
of  the  ship's  crew.  While  the  master  of 
a  vessel  is  not  required  to  prevent  officers 


or  members  of  his  crew  who  are  aliens 
from  going  on  shore  in  a  port  of  the 
United  States  in  every  case,  such  section 
requires  him  to  take  reasonable  precau- 
tions suited  to  the  nature  of  the  case  to 
prevent  them  from  deserting  and  remain- 
ing in  this  country.  Taylor  v.  United 
States,  152  F.  1,  81  C.  C.  A.  197,  judgment 
affirmed  in  Taylor  v.  United  States,  207 
U.  S.  120.  52  L.  Ed.  130,  28  S.  Ct.  53. 

Deserting  seaman  a  stowaway. — The 
fact  that  an  alien  seaman  deserting  while 
on  shore  leave  was  a  stowaway  under  or- 
der of  deportation  does  not  bring  the 
case  within  the  provisions  of  Immigra- 
tion Act  March  3,  1903,  c.  1012,  §  18,  32 
Stat.  1213,  1217,  making  it  the  duty  of  any 
officer  in  charge  of  any  vessel  bringing 
an  alien  to  the  United  States  to  adopt 
precautions  to  prevent  the  landing  of  such 
alien  at  any  time  or  place  other  than  that 
designated  by  the  immigration  officers, 
and  punishing  him  if  he  lands  or  permits 
to  land  any  alien  at  any  other  time  or 
place.  Judgment  (C.  C.  A.),  152  F.  1,  af- 
firmed. Taylor  v.  United  States,  207  U. 
S.  120,  52  L.  Ed.  130,  28  S.  Ct.  53;  Schrot- 
ter  V.  United  States  (C.  C.  A.  1908),  157 
F.  1005. 

Criminal  prosecutions  under  immigra- 
tion laws — Cross-examination. — The  mas- 
ter of  a  vessel  on  trial  for  permitting  an 
alien  member  of  his  crew  to  leave  his  ves- 
sel in  New  York,  in  Aaolation  of  Act  March 
3,  1903,  c.  1012,  §  18,  32  Stat.  1217  [U.  S. 
Comp.  St.  Supp.  1905,  p.  283],  was  prop- 
erly allowed  to  be  asked  on  his  cross-ex- 
amination as  a  witness  whether  a  number 
of  other  alien  members  of  his  crew  did 
not  also  desert  in  that  port,  as  material 
to  the  question  whether  or  not  he  took 
due  precautions  to  prevent  aliens  from 
leaving  the  vessel,  as  required  by  the  stat- 
ute. Taylor  v.  United  States,  152  F.  1,  81 
C.  C.  A.  197,  judgment  affirmed  in  Taylor 
V.  United  States,  207  U.  S.  120,  52  L.  Ed. 
130,  28  S.  Ct.  53. 


22 


Vol.  I. 


ALIENS. 


256 


deserting  while  on  shore  leave  is  not  comprehended  by  said  act,  notwithstand- 
ing the  omission  from  this  section  of  the  word  "immigrants,"  which  had  fol- 
lowed the  word  "alien,"  in  the  earlier  acts.^^*" 

2.  Penalty  for  Bringing  in  Diseased  i\LiENS. — Empowering  the  secre- 
tary of  commerce  and  labor  to  exact  a  money  penalty  for  bringing  into  the 
United  States  an  alien  afflicted  with  a  loathsome  or  dangerous  contagious  dis- 
ease, in  violation  of  the  act  of  March  3,  1903,  §  9,  when  the  official  medical 
examination  at  the  port  of  arrival  shows^  that  the  alien  was  suffering  from  the 
disease  at  the  time  of  embarkation,  the  existence  of  which  might  have  been 
detected  by  a  competent  medical  examination  made  as  the  statute  requires, 
does  not  render  such  statute  open  to  the  objection  that  it  defines  a  crirninal 
offense,  and  authorizes  a  purely  administrative  officer  to  determine  whether 
the  defined  crime  has  been  committed,  and,  if  so,  to  inflict  a  punishment.'* ^"^ 
In  such  case  congress  could  constitutionally  empower  the  secretary  of  com- 
merce and  labor  to  enforce,  without  invoking  the  judicial  power,  the  penalty 
imposed  by  the  act.^°®  The  enforcement  of  such  penalty  is  not  necessarily 
controlled  by  the  rules  which  govern  criminal  prosecutions  ;^^^  and  the  fact  that 
no  notice  or  hearing  is  provided  for  does  not  render  the  act  void  as  taking 
property  without  due  process  of  law.'*^^ 

3.  Importation,  Keeping  or  Harboring  Alien  Women  for  Purpose  op 
Prostitution  or  Concubinage. — Power  of  Congress. — Congress  has  the 
power  to  prohibit  the  importation  of  alien  women  for  purposes  of  prostitution 
and  to  punish  those  who  assist  in  their  importation.-*-^'^  But  Congress  had  no 
power  to  enact  Act  Feb.  20,  1907,  c.  1134,  §  3,  34  Stat.  899  (U.  S.  Comp.  Stat. 
Supp.  1907,  p.  392),  for  the  criminal  punishment  of  the  mere  keeping,  main- 
taining, supporting,  or  harboring,  for  the  purpose  of  prostitution,  any  alien 
woman  within  three  years  after  she  shall  have  entered  the  United  States.  The 
power  of  congress  to  punish  those  who  assist  in  the  importation  of  a  prostitute 
is  not  involved.'*^* 


256-45C.  Sailor  deserting. — Judgment 
(C.  C.  A.)  152  F.  1,  affirmed.  Taylor  v. 
United  States,  207  U.  S.  120,  52  L.  Ed.  130, 

28  S.  Ct.  53;  Schrotter  v.  United  States 
(C.   C.   A.   1908)    157   F.   1005. 

256-45d.  Bringing  in  diseased  aliens — 
Oceanic  Steam  Nav.  Co.  z'.  Stranahan, 
214  U.  S.  320,  53  L.  Ed.  1013,  29  S.  Ct.  671. 

256-45e.  Enforcement  of  penalty. — 
Oceanic  Steam  Nav.  Co.  v.  Stranahan,  214 
U.   S.  320,  53   L.   Ed.  1013,  29   S.  Ct.  671. 

256-45f.  Not  controlled  merely  by  rules 
of  criminal  prosecutions. — The  enforce- 
ment of  the  exaction  of  $100  which  the 
secretary  of  commerce  and  labor  is  au- 
thorized by  Act  March  3,  1903,  c.  1012,  § 
9,  32  Stat.  1215,  to  impose  for  violations 
of  its  provisions  against  bringing  into  the 
United  States  aliens  afflicted  with  loath- 
some or  dangerous  contagious  diseases, 
is  not  necessarily  governed  by  the  rules 
controlling  in  criminal  prosecutions  merely 
because  such  exaction  is  a  penalty.  Judg- 
ment, International  Mercantile  Marine 
Co.  V.  Stranahan  (C.  C.  1907)  155  F.  428, 
affirmed.  Oceanic  Steam  Nav.  Co.  v. 
Stranahan,  214  U.   S.   320,  53   L.   Ed.  1013, 

29  S.  Ct.  671;  International,  etc.,  Marine 
Co.  V.  Stranahan,  214  U.  S.  344,  53  L.  Ed. 
1024,   29    S.    Ct._678. 

256-45g.  Notice  or  hearing — Due  proc- 
ess  of  law. — Making   the   official    medical 


examination  at  the  port  of  arrival  con- 
clusive for  the  purpose  of  imposing  the 
penalty,  enforceable  by  refusing  clearance 
papers  until  paid,  which  is  authorized  by 
the  act  of  March  3,  1903,  §  9,  for  violating 
its  provisions  by  bringing  into  the  United 
States  an  alien  afflicted  with  a  loathsome 
or  contagious  disease  from  which  he  was 
suffering  at  the  time  of  embarkation,  the 
existence  of  which  might  have  been  de- 
tected by  means  of  a  competent  medical 
examination  then  made,  does  not  render 
such  statute  repugnant  to  U.  S.  Const., 
5th  Amend.,  as  taking  property  without 
due  process  of  law.  Oceanic  Steam  Nav. 
Co.  V.  Stranahan,  214  U.  S.  320,  53  L.  Ed. 
1013,  29   S.   Ct.  071. 

256-45h.  Importation  for  prostitution. 
—Keller  v.  United  States,  213  U.  S.  138, 
53  L.  Ed.  737,  29  S.  Ct.  470;  United  States 
V.  Bitty,  208  U.  S.  393,  52  L.  Ed.  543,  28 
S.   Ct.  396. 

256-45i.  Harboring,  etc.,  alien  women. 
—Keller  v.  United  States,  213  U.  S.  138, 
53  L.  Ed.  737,  29  S.  Ct.  470. 

Jurisdiction  over  such  an  ofTense  comes 
within  the  accepted  definition  of  the  police 
power.  Speaking  generally,  that  power 
is  reserved  to  the  states,  for  there  is  in 
the-  Constitution  no  grant  thereof  to 
Congress.  Keller  v.  United  States,  213 
U.  S.  138,  53  L.  Ed.  737,  29  S.  Ct.  470. 


23 


256 


ALIENS. 


Yo\.  I. 


Importation  for  Concubinage. — The  importation  of  an  alien  woman  into 
the  United  States  in  order  that  she  may  live  with  the  person  importing  her  as 
his  concubine  is  for  an  immoral  purpose,  within  the  meaning  of  the  act  of 
Feb.  20,  1907,  (34  Stat,  at  L.,  898,  chap.  1134;  U.  S.  Comp.  Stat.  Supp.  1907, 
p.  389),  making  it  a  crime  against  the  United  States  to  import  alien  women 
for  the  purpose  of  prostitution  or  for  any  other  immoral  purpose.^  ^^j  in  ac- 
cordance with  the  rule  of  ejusdem  generis  the  immoral  purpose  must_  be  one  of 
the  same  general  class  or  kind  as  the  particular  purpose  of  "prostitution"  speci- 
fied in  the  same  class.  Concubinage  is  of  the  same  general  class  or  kind  as 
prostitution."*"'" 

4.  Charge  for  Return  Passage. — A  foreign  steamship  company  which  law- 
fully collected  in  Germany  the  return  passage  money  from  emigrants  embarking 
fnr  New  York  violates  the  prohibition  of  the  immigration  act  of  Feb.  20,  1907 
(34  Stat,  at  L.,  898,  chap.  1134,  U.  S.  Comp.  Stat.  Supp.  1909,  p.  447),  §  19. 
against  makmg  any  charge  for  the  return  of  aliens  unlawfully  brought  into  the 
United  States,  or  taking  security  therefor,  wdiere,  after  the  deportation  of  such 
emigrants  had  been  ordered,  the  steamship  company  "retained  the  money  with 
intent  to  make  charge  and  secure  payment  for  their  return  passage.^^* 


256-45J.      Importation    for    concubinage. 

—United  States  v.  Bitty,  208  U.  S.  393,  52 
L.  Ed.  543,  28  S.  Ct.  396,  reversing  155 
Fed.  938. 

256-45k.  United  States  v.  Bitty,  208  U. 
S.  393,  52  L.  Ed.  543,  28  S.  Ct.  396. 

The  statute  was  intended  to  keep  out 
of  the  country  immigrants  whose  per- 
manent residence  here  would  not  be 
desirable  or  for  the  common  good,  and  it 
can  not  be  supposed  either  that  Congress 
intended  to  exempt  from  the  operation 
of  the  statute  the  importation  of  an  alien 
woman  brought  here  only  that  she  might 
live  in  a  state  of  concubinage  with  the 
man  importing  her,  or  that  it  did  not  re- 
gard such  an  importation  as  being  for  an 
immoral  purpose.  United  States  v.  Bitty, 
208  U.  S.  393,  403,  52  L.  Ed.  543,  28  S.  Ct. 
396. 

The  earlier  statutes  were  directed 
against  the  importation  into  this  country 
of  alien  women  for  the  purpose  of  prosti- 
tution. But  the  statute,  on  which  the 
amendment  rests,  is  directed  against  the 
importation  of  an  alien  woman  "for  the 
purpose  of  prostitution  or  for  any  other 
immoral  purpose;"  and  the  indictment 
distinctly  charges  that  the  defendant  im- 
ported the  alien  woman  in  question  "that 
she  should  live  with  him  as  his  concubine," 
that  is,  "in  illicit  intercourse,  not  under 
the  sanction  of  a  valid  or  legal  marriage." 
United  States  v.  Bitty,  208  U.  S.  393,  400, 
52  L.  Ed.  543,  28  S.  Ct.  396. 

256-451.  Charge  for  return  passage. — 
United  States  v.  Nord  Deutscher  Lloyd, 
223  U.   S.  512,  56  L.   Ed.  531,  32   S.   Ct.  244. 

"Section  19  of  the  immigration  act  of 
1907  (34  Stat,  at  L.  898,  904,  chap.  1134, 
U.  S.  Comp.  Stat.  Supp.  1909,  pp.  447,  458) 
is  not  aimed  at  the  aliens  of  the  excluded 
class,    l)ut    at    the    owners    of   vessels   un- 


lawfully bringing  thein  into  this  country. 
The  government  might  in  large  measure 
protect  itself  by  inspection,  rejection,  and 
order  of  deportation,  but  it  is  purposed, 
also,  as  far  as  possible,  to  protect  the 
alien.  He  might  be  ignorant  of  our  laws, 
and  ought  to  be  deterred  from  incurring 
the  expense  of  making  a  passage  which 
could  only  end  in  his  being  returned  to 
the  country  from  whence  he  came.  This 
policy  could  best  be  subserved  by  secur- 
ing the  co-operation  of  the  transportation 
companies,  and  to  this  end  the  statute 
required  that  they  should  not  only  main- 
tain the  aliens  unlawfully  brought  by 
them  into  this  country,  but  should  take 
them  back  free  of  charge."  United  States 
V.  Nord  Deutscher  Lloyd,  223  U.  S.  512, 
56  L.  Ed.  531,  32  S.  Ct.  244. 

"The  statute,  of  course,  has  no  extra- 
territorial operation,  and  the  defendant 
can  not  be  indicted  here  for  what  he  did 
in  a  foreign  country.  American  Banana 
Co.  V.  United  Fruit  Co.,  213  U.  S.  347,  53 
L.  Ed.  826,  29  S.  Ct.  511.  But  the  parties 
in  Germany  could  make  a  contract  which 
would  be  of  force  in  the  United  States. 
When,  therefore,  in  Bremen  the  alien  paid 
and  the  defendant  received  the  150  rubles 
for  a  return  passage,  they  created  a  con- 
dition which  was  operative  in  New  York. 
If,  in  that  city,  the  company  had  refused 
to  honor  the  ticket,  the  alien  could  there 
have  enforced  his  rights.  In  like  man- 
ner, if  by  reason  of  facts  occurring  in 
New  York  the  statute  operated  to  rescind 
the  contract,  the  rights  and  duties  of  the 
parties  could  there  be  determined,  and 
acts  of  commission  or  omission,  which, 
as  a  result  of  the  rescission,  were  there 
unlawful.  could  there  be  punished." 
United  States  v.  Nord  Deutscher  Lloyd, 
223   U.    S.  512,  56   L.    Ed.  531,   32   S.    Ct.   244. 


24 


Vol.  I.  AMBIGUITY.  2  56 

ALIMONY. — See  post,  Divorce;  and  Alimony. 

ALL. — See  note  1. 

ALLEGATA  AND  PROBATA.— See  post.  Pleading;  Variance.  And  see 
post,  Specific  Performance. 

ALLEGIANCE.— See  Allegiance,  vol.  1,  p.  258.  See  ante,  Aliens,  p.  18; 
post,  Citizenship. 

ALLOTMENT.— See  post,  Indians;   Public  Lands. 

ALLOWANCE. — See  Allovv^ — ^Allowance,  vol.  1,  p.  259.  See  post,  Army 
and  Navy.    As  to  allowance  of  interest  as  damages,  see  post,  Interest. 

ALLUVION. — See  Alluvion,  vol.  1,  p.  260.  See  ante.  Accession,  Accre- 
tion AND  Reliction,  p.  4;  post,  Boundaries. 

ALTERATION  OF  INSTRUMENTS.— See  the  title  Alteration  of  Instru- 
ments, vol.  1,  p.  261. 

ALTERNATIVE  WRITS.— See  post.  Mandamus. 

AMBASSADORS  AND  CONSULS.— See  the  title  Ambassadors  and  Con- 
suls, vol.  1,  p.  273,  and  references  there  given.  As  to  right  of  a  consul  to  ad- 
minister the  estate  of  a  deceased  national,  under  terms  of  a  treaty,  see  post. 
Executors  and  Administrators. 

AMBIGUITY. — See  post.  Interpretation  and  Construction;  Parol  Evi- 
dence. 

256-1.    All  cases. — As  to  judicial  power  Privileges    meaning     all    the    privileges. 

of  the  United  States  as  to  all  cases  in  — A  charter  for  a  toll  road  provided, 
law  and  equity  arising  under  the  con-  that  "The  privileges  granted  in  this 
stitution,  laws  and  treaties,  see  post,  charter  shall  continue  for  fifty  years;" 
APPEAL  AND  ERROR:  COURTS.  with  a  provision  that  the  county  courts 
Power  of  congress  as  to  rules  and  of  designated  counties  might,  at  the  ex- 
regulations  as  to  United  States  prop-  piration  of  twenty  years,  or  any  time 
erty  and  territory. — Section  3,  art.  -4,  of  thereafter,  purchase  said  road,  at  the  ac- 
the  constitution,  declares  that  "congress  tual  cost  of  construction,  and  make  it  a 
shall  have  power  to  dispose  of  and  make  free  road.  "The  privileges  granted  in 
all  the  needful  rules  and  regulations  re-  this  charter"  means  all  the  privileges,  in- 
specting the  territorj^  and  the  property  eluding  the  privilege  of  taking  toll.  The 
belonging  to  the  United  States."  The  full  limitation  of  fifty  years  would  be  almost 
scope  of  this  paragraph  has  never  been  meaningless  if  tolls  were  not  embraced, 
definitely  settled.  Primarily,  at  least,  it  Scott  County,  etc..  Road  Co.  v.  Hines,  21.5 
is  a  grant  of  power  to  the  United  States  U.  S.  3.36,  339,  54  L.  Ed.  221.  30  S.  Ct. 
to  control  over  its  property.  Light  v.  110.  See  post,  CORPORATIONS; 
United  States,  220  U.  S.  .523,  55  L.  Ed.  TURNPIKES  AND  TOLLROADS. 
570,  31   S.   Ct.   485. 

25 


296-312 


AMONG. 


Vol.  I. 


AMENDMENTS. 
n.  Amendment  of  Pleadings  in  Civil  Cases,  26. 

C.  In  What  Particulars  Amendable,  26. 

1.  In  Equity,  26. 

b.  Bill  26. 

(2)   Amendments  Changing  Case  Alade  by  Original  Bill,  26. 

2.  Pleadings  at  Law,  26. 

c.  Declaration,  Petition  or  Complaint,  26. 

(1)    Proper  Scope  of  Amendments,  26. 

(d)   To  Conform  to  Facts  Proved,  26. 

CROSS   REFERENCES. 

See  the  title  AmendmiJnts,  vol.  1,  p.  288,  and  references  there  given. 

II.    Amendment  of  Pleading's  in  Civil  Cases. 

C.  In  What  Particulars  Amendable — 1.  In  Equity — b.  Bill — (2)  Amend- 
Clients  Changing  Case  Made  by  Original  Bill. — See  note  39. 

2.  Pleadings  at  Law — c.  Declaration,  Petition  or  Complaint — (1)  Proper 
Scope  of  Amendments — (d)    To  Conform  to  Pacts  Proved. — See  note  47. 

AMERICANS. — See  Americans,  vol.   1,  p.  311.     See  ante.  Aliens,  p.   18; 
post,  International  Law. 
AMICUS  CURI.ffi.— See  post.  Appeal  and  Error. 
AMONG.— See  note  4. 


296-39.  Amendment  held  germane  to 
original  cause  of  action. — A  proposed 
amendment  to  the  bill  in  a  suit  by  the 
federal  government  to  enjoin  railway  car- 
riers from  interstate  transportation  of 
commodities  with  which  tliey  are  associ- 
ated, or  in  which  they  are  interested  is 
germane  to  the  original  cause  of  action, 
where  its  allegations  tend  to  show  such 
an  exercise  by  the  carrier  of  its  power  as 
a  stockholder  in  the  corporation  manu- 
facturing, mining,  producing,  or  owning 
the  commodity  carried,  as  to  deprive  the 
latter  of  all  independent  existence,  and 
to  make  it  virtually  but  an  agency,  or 
dependenc3%  or  department  of  the  carrier. 
United  States  v.  Lehigh  Valley  R.'  Co., 
220  U.  S.  257.  .55  L.  Ed.  458.  31  S.  Ct.  387. 

300-47.  Increasing  ad  damnum  in  re- 
plevin to  conform  declaration  to  evi- 
dence as  to  value. — Increasing  the  ad 
damnum  of  a  suit  in  replevin  to  an  amount 
within  the  penalty  of  the  bond  by  amend- 
ments to  make  the  declaration  conform 
to  the  evidence  as  to  value,  does  not  in- 
troduce a  new  cause  of  action.  Bierce  v. 
Waterhouse,  219  U.  S.  320,  55  L.  Ed.  237. 
31    S.    Ct.   241. 

Amendment  of  declaration  seeking  re- 
covery of  entire  amount  on  contract  so 
as  to  claim  only  for  goods  shown  to  have 
been  delivered. — Allowing  amendment 
after    full    trial    of    a    declaration    seeking 


recoverj'-  of  the  entire  amount  due  on  a 
contract  for  purchase  of  cattle  and  feed, 
so  as  to  claim  recovery  for  the  portion 
shown  to  have  been  delivered,  should  not 
be  denied  on  the  ground  of  surprise. 
Judgment,  Snyder  v.  Stribling,  89  P.  222, 
18  Okl.  168,  affirmed.  Snyder  v.  Rosen- 
baum,  215  U.  S.  261.  54  L.  Ed.  ]86.  30  S. 
Ct.   73. 

312-4.  Commerce  among  the  states. — 
Commerce  among  the  states  is  not  a 
technical  legal  conception  but  a  practical 
one,  drawn  from  the  course  of  business. 
Savage  v.  Jones,  225  U.  S.  501,  56  L.  Ed. 
1182,  32  S.  Ct.  715.  See  post,  INTER- 
STATE AND  FOREIGN  COMMERCE. 

In  the  constitutional  provision  con- 
ferring upon  congress  the  power  "to 
regulate  commerce  *  *  *  among  the  sev- 
eral states,"  the  phrase  "among  the  several 
states"  marks  the  distinction,  for  the  pur- 
pose of  governmental  regulation,  between 
coinmerce  which  concerns  two  or  more 
states  and  commerce  which  is  confined  to 
a  single  state  and  does  not  affect  other 
states,  the  power  to  regulate  the  former 
being  conferred  upon  congress  and  the 
regulation  of  the  latter  remaining  with 
the  states  severally.  Second  Employers' 
Liability  Cases,  223  U.  S.  1,  46,  56  L.  Ed. 
327,  32  S.  Ct.  169.  See  post,  INTER- 
STATE AND  FOREIGN   COMMERCE. 


26 


Vol.  I.  ANIMALS.  320-321 

AMOUNT  IN  CONTROVERSY.— See  post,  Appeal  and  Error;  Courts; 
Removal  oe  Causes. 

ANCESTOR. — See  post.  Descent  and  Distribution. 

ANCHORED  VESSELS.— See  ante,  Admiralty,  p.  10;    post,  Collision. 

ANCIENT  DOCUMENTS.— See  the  title  Ancient  Documents,  vol.  1,  p. 
313,  and  references  there  given. 

ANCILLARY  JURISDICTION.— See  post,  Courts;    Injunctions. 

ANIMALS. 

III.  Injuries  from  Animals,  27. 

B.  From  Animals  Grazing  upon  Unenclosed  Lands,  27. 

1.  At  Common  Law,  27. 

3.  Upon  Lands  of  the  United  States,  27. 
5.  Driving  Cattle  upon  Another's  Land,  28. 

VII.  Health  and  Sanitary  Regulations  Regarding  Animals,  29. 

A.  Power  to  Prescribe  Sanitary  Regulations,  29. 

2.  Of  State  Government,  29. 

d.  Effect  of  Animal  Industry  Act  on  State  Regulations,  30. 

e.  What  Constitutes  Violation  of  Quarantine  Laws,  30. 

CROSS   REFERENCES. 
See  the  title  Animals,  vol.  1,  p.  316,  and  references  there  given. 
In  addition,  see  post.  Interstate  and  Foreign  Commerce. 

III.  Injuries  from  Animals. 

B.  From  Animals  Grazing  upon  Unenclosed  Lands — 1.  At  Common 
Law. — See  note  16. 

3.    Upon  Lands  of  the  United  States. — See  note  18. 

Right  to  Graze  Cattle  on  Forest  Reservation. — The  United  States  has  by 
statutory  enactment  provided  that  the  president  may  set  apart  from  time  to 
time  portions  of  the  public  land  as  a  public  forest  reservation.  And  these  stat- 
utes provide  that  the  right  to  graze  cattle  upon  the  forest  reservation  shall  be 
subject  to  such  rules  and  regulations  as  the  secretary  of  agriculture  shall  pre- 
scribe.^^^  These  statutes  modify  the  rule  previously  laid  down  that  there  is  an 
implied  license  that  all  persons  have  a  right  to  graze  cattle  upon  the  public  land 
of  the  United  States,  in  so  far  as  it  limits  its  application  to  land  not  set  apart  as 

320-16.  Owner's  duty  at  common  law.  sort  of  implied  license  that  these  lands, 
— At  common  law,  the  owner  was  re-  thus  left  open,  might  be  used  so  long  as 
quired  to  confine  his  live  stock,  or  else  the  government  did  not  cancel  its  tucit 
was  held  liable  for  any  damage  done  by  consent.  Buford  z'.  Houtz,  133  U.  S. 
them  upon  the  land  of  third  persons.  820,  33  L.  Ed.  618,  10  S.  Ct.  305.  Its  fail- 
Light  z'.  United  States,  220  U.  S.  523,  55  ure  to  object,  however,  did  not  confer 
L.   Ed.   570.  31   S.  Ct.   485.  any  vested  right  on  the   complainant,  nor 

321-18.    License  implied  from  continuous  did    it    deprive    the    United    States    of    the 

practice. — The    common-law     rule     which  power    of    recalling    any    implied    license 

required    an    owner    to    confine  his    stock  under  which  the  land  had  been  used  for 

was  not  adapted  to  the  situation  of  those  private  purposes.     Light  v.  United  States, 

states  where   there  were  great  plains   and  220   U.    S.   523,   535,   55    L.    Ed.    570.   31    S. 

vast    tracts    of    unenclosed    land,    suitable  Ct.  485,  citing  Steele  v.  United  States,  113 

for   pasture.      And    so,   without   passing   a  U.   S.   128,   130,   28   L.   Ed.   952;   Wilcox  v. 

statute,    or    taking   any    affirmative    action  Jackson,  13  Pet.  498,  513,  10  L.  Ed.  264. 

on    the    subject,    the    United    States    suf-  321-18a.    Grazing  on  forest  reservation. 

fered    its    publi::    domain    to    be    used    for  — United    States    z'.    Grimaud,    220    U.    S. 

such    purposes.      There    thus    grew    up    a  506,   55   L.    Ed.   563,   31    S.    Ct.   480. 

27 


321-322 


ANIMALS. 


Vol.  I. 


a  forest  reservation. ^^'^  Under  these  laws  the  secretary  of  agriculture  may  make 
■a  regulation  providing  that  no  person  shall  graze  cattle  upon  any  of  the  lands  of 
the  forest  reservation  without  first  obtaining  a  necessary_  permit.^^"  And  a  fail- 
ure to  obey  such  regulations  may  be  punished  as  a  criminal  offense. ^'^"^ 

Injunction  to  Restrain  Grazing  on  Forest  Reserve. — An  injunction  will  lie 
to  restrain  an  owner  from  pasturing  his  cattle  upon  lands  belonging  to  the  forest 
reserve  of  the  United  States,  without  obtaining  the  permit  required  by  law.^^^ 

Failure  to  Comply  with  Fence  Laws. — And  the  failure  of  the  United 
States  to  comply  with  the  fence  laws  of  the  state  in  which  the  lands  of  the  re- 
serve are  located  will  not  affect  the  right  to  relief. i^' 

5.    Driving  Cattle:  upon  Another's  Land. — See  note  20. 


321-18b.    Relative    to   implied   license.— 

United  States  v.  Grimaud,  220  U.  S.  506, 
55  L.  Ed.  563,  31  S.  Ct.  480;  Light 
V.  United  States,  220  U.  S.  523,  55  L.  Ed. 
570,    31    S.    Ct.    485. 

"The  implied  license  under  which  the 
United  States  had  suffered  its  public  do- 
main to  be  used  as  a  pasture  for  sheep 
and  cattle,  mentioned  in  Buford  v.  Houtz. 
133  U.  S.  320,  33  U.  Ed.  618,  10  S.  Ct. 
305,  was  curtailed  and  qualified  by  con- 
gress, to  the  extent  that  such  privilege 
should  not  be  exercised  in  contravention 
of  the  rules  and  regulations.  Wilcox  v. 
Jackson,  13  Pet.  498,  513,  10  L-  Ed.  264." 
United  States  v.  Grimaud,  220  U.  S.  506, 
521.    55   L.   Ed.    563,   31    S.    Ct.   480. 

321-180.  Regulations  by  secretary  of 
agriculture. — United  States  v.  Grimaud, 
220  U.   S.  506,  55  L.  Ed.  563,  31   S.  Ct.   480. 

A  regulation  by  the  secretary  of  agri- 
culture, forbidding  stock  grazing  on  a 
forest  reservation  without  securing  a  per- 
mit, must  be  regarded  as  within  the  au- 
thority conferred  upon  him  by  congress 
in  the  forest  reserve  acts  (Act  June  4, 
1897,  c.  2,  30  Stat.,  35  [U.  S.  Comp.  St. 
1901,  p.  1539];  Act  February  1,  1905,  c. 
288,  §  5.  33  Stat.  628  [U.  S.  Comp.  St. 
Supp.  1909,  p.  577]),  to  make  rules  and 
regulations  governing  occupancy  and  use, 
and  for  the  preservation  of  the  forests,  al- 
though a  fee  is  charged  for  such'  permits, 
especially  in  view  of  the  provisions  in 
the  later  of  the  two  statutes  and  in  sub- 
sequent acts  respecting  the  disposition  of 
forest  reservation  revenue.  United  States 
7>.  Grimaud,  220  U.  S.  506,  55  L.  Ed.  563, 
31  S.  Ct.  480,  reversing  judgment  in  170 
Fed.   205. 

321-18d.  Disobedience  rendered  criminal. 
—United  States  v.  Grimaud,  220  U.  S. 
506,    55    L.    Ed.    563,    31    S.    Ct.   480. 

Grazing  stock  upon  a  forest  reserva- 
tion without  the  permit  required  by  a  rule 
made  and  promulgated  by  the  secretary 
of  agriculture  under  the  authority  con- 
ferred upon  him  by  forest  reserve  acts 
(.\ct  June  4,  1897.  c.  2,  30  Stat.  35  [U.  S. 
Comp.  St.  1901,  p.  1539];  Act  February 
1,  1905,  c.  288,  §  5,  33  Stat.  628  [U.  S. 
Comp.  St.  Supp.  1909,  p.  577]),  is  made 
an    ofTense    against   the   United    States   by 


the  provisions  of  those  acts  that  viola- 
tions of  such  rules  and  regulations  shall 
be  criminally  punishable.  United  States 
V.  Grimaud,  220  U.  S.  506,  55  L.  Ed.  563, 
31  S.  Ct.  480,  reversing  judgment  in  170 
Fed.  205. 

321-18e.  Injoining  grazing  on  forest 
reservations. — Light  v.  United  States,  220 
U.  S.  523,  55  L.  Ed.  570,  31  S.  Ct.  485. 
As  to  forest  reservations,  see  post,  PUB- 
LIC  LANDS. 

"It  appears  that  the  defendant  turned 
out  his  cattle  under  circumstances  which 
show  that  he  expected  and  intended  that 
they  would  go  upon  the  reserve  to  graze 
thereon.  Under  the  facts  the  court  prop- 
erly granted  an  injunction.  The  judg- 
ment was  right  on  the  meriJs,  wholly  re- 
gardless of  the  question  as  to  whether 
the  government  had  enclosed  its  prop- 
erty." Light  V.  United  States,  220  U.  S. 
523,    538.    55    L.    Ed.    570,   31    S.    Ct.    485. 

321-18f.  Failure  to  comply  with  fence 
laws. — Light  v.  United  States,  220  U.  S. 
523,  55  L.  Ed.  570,  31  S.  Ct.  485.  See, 
also,   post,   FENCES. 

The  United  States  is  entitled  to  in- 
junctive relief  where  a  cattle  owner  who 
has  not  secured  the  requisite  stock-graz- 
ing permit  from  the  secretary  of  agricul- 
ture turns  out  his  cattle  under  circum- 
stances which  show  that  he  expected  and 
intended  that  they  v/ould  graze  on  a 
forest  reservation,  although  the  govern- 
ment may  not  have  complied  with  the 
local  fence  laws,  even  assuming  that  such 
laws  can  apply  to  the  United  States. 
Light  V.  United  States,  220  U.  S.  523,  55 
L.    Ed.   570,    31    S.    Ct.   485. 

322-20.  Driving  cattle  upon  another's 
land. — "Fence  laws  do  not  authorize 
wanton  and  willful  trespass,  nor  do  they 
afford  immunity  to  those  who,  in  disre- 
gard of  property  rights,  turn  loose  their 
cattle  under  circumstances  showing  that 
they  were  intended  to  graze  upon  the 
lands  of  another."  Light  r.  United  States, 
220  U.  S.  523,  537,  55  L.  Ed.  570,  31  S.  Ct. 
485. 

"Even  a  private  owner  would  be  en- 
titled to  Drotection  against  willful  tres- 
passes, and  statutes  providing  that  dam- 
age   done    by   animals    can    not   be    rccov- 


28 


A'ol.  I. 


ANIMALS. 


325 


VII.    Health  and  Sanitary  Regulations  Regarding  Animals. 

A.    Power  to  Prescribe   Sanitary  Regulations — 2.    Of  State  Govern- 
ment.— See  note  oZ. 


erecl,  unless  the  land  had  been  enclosed 
with  a  fence  of  the  size  and  material  re- 
quired, do  not  give  permission  to  the 
owner  of  cattle  to  use  his  neighbor's  land 
as  a  pasture.  They  are  intended  to  con- 
done trespasses  by  straying  cattle;  Vaty 
have  no  application  to  cases  where  they 
are  driven  upon  unfenced  land  in  order 
that  they  may  feed  there."  Light  v. 
United  States,  220  U.  S.  523,  537,  55  L. 
Ed.  570,  31  S.  Ct.  485,  citing  Lazarus  v. 
Phelps,  152  U.  S.  81,  38  L.  Ed.  303;  Mon- 
roe V.  Cannon,  24  Montana.  316;  Si. 
Louis  Cattle  Co.  z'.  Vaught,  1  Tex.  Cr.  App. 
388;  The  Union  Pacific  t.  Rollins.  5 
Kansas,    165,    176. 

325-32.  State  enactments. — Until  there 
is  a  congressional  enactment  upon  the 
subject  a  state  may,  in  the  exercise  of 
its  police  powers,  pass  laws  providing  for 
the  inspection  of  cattle  transported  into 
it  from  other  states.  Asbell  v.  Kansas, 
209  U.   S.  251,  52   L.   Ed.   778.  28  _S.  Ct.  485. 

There  is  no  federal  legislation  which 
takes  from  a  state  the  right  to  provide 
for  the  inspection  of  cattle  and  to  prohibit 
the  transportation  into  the  state  of  cattle 
which  have  not  been  declared  to  be 
healthy  after  a  proper  inspection,  cither 
by  the  proper  state  or  federal  officials. 
Asbell  V.  Kansas,  209  U.  S.  251,  52  L.  Ed. 
778,   28    S.    Ct.    485. 

Cattle  subject  to  inspection. — "Cattle, 
while  in  the  course  of  transportation  from 
one  state  to  another,  and  in  that  respect 
under  the  exclusive  control  of  the  law 
of  the  national  government,  may  at  the 
same  time  be  the  conveyance  by  which 
disease  is  brought  within  the  state  to 
which  they  are  destined,  and  in  that  re- 
spect subject  to  the  power  of  the  state 
exercised  in  good  faith  to  protect  the 
health  of  its  own  animals  and  its  own 
people.  In  the  execution  of  that  power 
the  state  may  enact  laws  for  the  inspec- 
tion of  animals  coming  from  other  states 
Avith  the  purpose  of  excluding  those 
which  are  diseased  and  admitting  those 
which  are  healthy."  Asbell  v.  Kansas. 
209  U.  S.  251,  256,  52  L.  Ed.  778,  28  S.  Ct. 
485,  citing  Reid  v.  Colorado,  187  U.  S. 
137,    47    L.    Ed.    108. 

No  application  to  interstate  shipments. 
— ''The  state  may  not,  however,  for  this 
purpose  exclude  all  animals,  whether  dis- 
eased or  not,  coming  from  other  states 
("Railroad  Co.  v.  Husen,  95  U.  S.  465,  24  L. 
Ed.  527),  nor  under  the  pretense  of  pro- 
tecting the  public  health,  employ  inspec- 
tion laws  to  exclude  from  its  borders  the 
products  or  merchandise  of  other  states; 
and  this  court  will  assume  the  duty  of 
determining  for  itself  whether  the  statute 


before  it  is  genuine  exercise  of  an  ac- 
knowledged state  power,  or  whether,  on 
the  other  hand,  under  the  guise  of  an 
inspection  law  it  is  really  and  substan- 
tially a  regulation  of  foreign  or  interstate 
commerce  which  the  constitution  has 
conferred  exclusively  upon  the  congress.'' 
Asbell  V.  Kansas,  209  U.  S.  251,  256,  52 
L.  Ed.  778,  28  S.  Ct.  485.  And  see  post, 
INTERSTATE  AND  FOREIGN  COM- 
MERCE. 

Police  power — Interstate  commerce.^ 
A  statute  of  the  state  of  Kansas  makes  it 
a  misdemeanor,  punishable  by  fine  or  im- 
prisonment or  both,  for  any  'person  to 
transport  into  the  state  cattle  from  any 
point  south  of  the  south  line  of  the  state, 
except  for  immediate  slaughter,  without 
having  first  caused  them  to  be  inspected 
and  passed  as  healthy  by  the  proper  state 
officials  or  by  the  Bureau  of  Animal  In- 
dustry of  the  interior  department  of  the 
United  States.  See  §  27,  chap.  494,  Laws 
of  Kansas  1905.  It  has  been  held  that, 
this  statute,  it  is  a  proper  police  regu- 
lation within  the  power  of  the  state  and 
is  not  in  conflict  with  the  act  of  congress 
of  February  2,  1903,  32  Stat.  791,  or  the 
act  of  March  3,  1905,  33  Stat.  1204,  relat- 
ing to  the  inspection  of  cattle  and  that 
it  is  not  in  contravention  of  the  United 
States  constitution  as  a  direct  regulation 
of  interstate  commerce.  Asbell  v.  Kan- 
sas. 209  U.  S.  251,  52  L.  Ed.  778.  28  S. 
Ct.   485. 

Interstate  commerce  is  not  unlawfully 
regulated,  in  the  absence  of  controlling 
federal  legislation,  by  Laws  Kan.  1905, 
p.  823,  c.  495,  §  27,  making  it  a  misde- 
meanor for  any  person  to  transport  into 
the  state  cattle  from  any  point  south,  ex- 
cept for  immediate  slaughter,  without 
having  first  caused  them  to  be  inspected 
and  passed  as  healthy  by  the  proper  state 
officials,  or  by  the  Bureau  of  Animal  In- 
dustry of  the  Interior  Department  of  the 
United  States.  Judgment,  State  v.  Asbell 
(1906),  86  P.  457,  74  Kan.  397,  affirmed. 
Asbell  V.  Kansas.  209  U.  S.  251.  52  L.  Ed. 
778,   28   S.    Ct.   485. 

"The  obvious  purpose  of  the  law  was 
to  guard  against  the  introduction  into  the 
state  of  cattle  infected  with  a  communi- 
cable disease.  It  undoubtedly  restricts 
the  absolute  freedom  of  interstate  com- 
merce in  cattle,  but  only  to  the  extent  that 
all  cattle  coming  across  the  guarded 
boundary  are  subjected  to  inspection  to 
ascertain  whether  or  not  they  are  dis- 
eased. If  healthy  thc}^  are  admitted,  if 
diseased  they  are  excluded.  The  validity 
of  such  a  restriction  for  such  purposes 
has    been    frequently    considered    by    this 


29 


327 


ANIMALS. 


Vol.  I. 


d.  Uffect  of  Animal  Industry  Act  on  State  Regulations.— S&q  note  39. 

e.  What  Constitutes  Violation  of  Quarantine  Laws. — A  carrier  who  receives 
cattle  from  another  carrier  at  a  point  within  a  state  to  be  transported  to  another 


court,  and  the  principles  applicable  to  the 
settlement  of  the  question  have  been 
clearly  defined.  The  governmental  power 
over  the  commerce  which  is  interstate  is 
vested  exclusively  in  the  congress  by  the 
commerce  clause  of  the  constitution,  and 
therefore  is  withdrawn  from  the  states. 
It  is  not  now  necessary  to  cite  the  many 
cases  supporting  this  proposition,  or  to 
consider  some  expressions  in  the  books 
somewhat  qualifying  its  generality,  be- 
cause in  carefully  chosen  words  it  has 
recently  been  affirmed  by  us.  At  this 
term,  Mr.  Justice  Peckham,  speaking  for 
the  court,  said:  'That  any  exercise  ,of 
state  authority,  in  whatever  form  mani- 
fested, which  directly  regulates  interstate 
commerce,  is  repugnant  to  the  commerce 
clause  of  the  constitution  is  obvious.' " 
Asbell  V.  Kansas,  209  U.  S.  251,  254.  52 
L.  Ed.  778,  28  S.  Ct.  485,  citing  Atlantic 
Coast  Line  R.  Co.  v.  Wharton,  207  U.  S. 
328,  334,  52  L.  Ed.  230,  28  S.  Ct.  121. 

327-39.  Effect  of  animal  industry  act. — 
Nothing  in  the  provision  of  act  February 
2,  1903,  c.  349,  32  Stat.  791  (U.  S.  Comp. 
St.  Supp.  1907,  p.  923),  that,  when  an 
inspector  of  the  Bureau  of  Animal  In- 
dustrj'-  has  issued  a  certificate  that  he  has 
inspected  animals  and  found  them  free 
from  disease,  such  animals  may  be  intro- 
duced into  any  state  without  further  in- 
spection, or  exaction  of  fees  of  any  kind 
except  such  as  may  be  ordered  or  ex- 
acted by  the  secretary  of  agriculture,  pre- 
cluded the  enactment  of  Laws  Kan.  1905, 
p.  823,  c.  495,  §  27,  making  it  a  misde- 
meanor for  any  person  to  transport  into 
the  state  cattle  from  any  point  south,  ex- 
cept for  immediate  slaughter,  without 
having  first  caused  them  to  be  inspected 
and  passed  as  healthy  by  the  proper  state 
officials,  or  by  the  Bureau  of  Animal  In- 
dustry of  the  Interior  Department  of  the 
United  States.  Judgment,  State  z>.  As- 
bell (1906),  86  P.  457,  74  Kan.  397.  af- 
firmed. Asbell  V.  Kansas,  209  U.  S.  251, 
52   L.   Ed.   778,  28   S.   Ct.   485. 

A  regulation  promulgated  by  the  secre- 
tary of  agriculture  under  the  authority  of 
Act  February  2,  1903,  c.  349,  32  Stat."  791 
(U.  S.  Comp.  St.  Supp.  1907,  p.  923), 
which  is  directed  to  the  transportation  of 
cattle  from  quarantined  states,  and  which 
in  terms  recognizes  restrictions  imposed 
by  the  state  of  destination,  does  not  in- 
validate— at  least,  where  no  quarantined 
areas  are  involved — the  provision  of 
Laws  Kan.  1905,  p.  823,  c.  495,  §  27,  mak- 
ing it  a  misdemeanor  for  any  person  to 
transport  into  the  state  cattle  from  any 
point  south,  except  for  immediate  slaugh- 
ter, without  having  first  caused  them  to 
be    inspected    and    passed    as    healthy    by 


the  proper  state  officials,  or  by  the 
Bureau  of  Animal  Industry  of  the  Interior 
Department  of  the  United  States.  Judg- 
ment, State  57.  Asbell  (1906),  86  P.  457,  74 
Kan.  397,  aff.rmed.  Asbell  v.  Kansas,  209 
U.  S.  251,  52  L.  Ed.  778,  28  S.  Ct.  485. 
See  post,  INSPECTION  LAWS. 

"This  question  was  considered  and 
the  national  legislation  carefully  ex- 
amined in  Reid  v.  Colorado,  187  U.  S.  137, 
47  L.  Ed.  108,  and  the  conclusion  reached 
that  congress  had  not  then  taken  any  ac- 
tion which  had  the  effect  of  destroying 
the  right  of  the  state  to  act  subject.  It 
was  there  said,  p.  148:  Tt  did  not  under- 
take to  invest  any  officer  or  agent  of  the 
department  with  authority  to  go  into  a 
state,  and,  without  its  assent,  take  charge 
of  the  work  of  suppressing  or  extirpating 
contagious,  infectious  or  communicable 
diseases  there  prevailing,  and  which  en- 
dangered the  health  of  domestic  animals. 
Nor  did  congress  give  the  department  au- 
thority, by  its  officers  or  agents,  to  in- 
spect cattle  within  the  limits  of  a  state, 
and  give  a  certificate  that  should  be  of 
superior  authority  in  that  or  other  states, 
or  which  should  entitle  the  owner  to 
carry  his  cattle  into  or  through  another 
state  without  reference  to  the  reasonable 
and  valid  regulations  which  the  latter 
state  may  have  adopted  for  the  protec- 
tion of  its  own  domestic  animals.  It 
should  never  be  held  that  congress  in- 
tends to  supersede  or  by  its  legislation 
suspend  the  exercise  of  the  police  powers 
of  the  states,  even  when  it  may  do  so, 
unless  its  purpose  to  effect  that  result  is 
clearly  manifested.'  There  has,  however, 
been  later  national  legislation  which 
needs  to  be  noticed."  Asbell  v.  Kansas, 
209  U.  S.  251,  257,  52  L.  Ed.  778,  28  S. 
Ct.   485. 

"Larger  powers  to  control  the  inter- 
state movement  of  cattle  liable  to  be 
afflicted  with  a  communicable  disease 
have  been  conferred  upon  the  secretary 
of  agriculture  by  the  act  of  February  2, 
1903,  32  Stat.  791,  and  the  act  of  March 
3,  1905,  33  Stat.  1204.  The  provisions  of 
these  acts  need  not  be  fully  stated.  The 
only  part  of  them  which  seems  relevant 
to  this  case  and  the  question  under  con- 
sideration which  arises  in  it  is  contained 
in  the  law  of  1903.  In  that  law  it  is  en- 
acted that  when  an  inspector  of  the 
Bureau  of  Animal  Industry  has  issued  a 
certificate  that  he  has  inspected  cattle  or 
live  stock  and  found  them  free  from  in- 
fectious, contagious  or  communicable  dis- 
ease, 'such  animals  so  inspected  and 
certified  may  be  shipped,  driven,  or  trans- 
ported =•=  *  *  into  *  *  *  any  state  or  terri- 
tory  *   *   *   without   further   inspection   or 


30 


A'ol.  I. 


ANTI-TRUST  LAWS. 


327-330 


point  within  the  same  state,  does  not  violate  the  law  forbidding  the  transporta- 
tion of  cattle  from  a  quarantined  state  into  another  state,  although  the  initial 
carrier  may  have  received  the  cattle  in  a  quarantined  state." ^^ 

ANIMALS  FER^  NATURE.— See  post,  Gas. 

ANNEXATION  OF  TERRITORY.— See  post,  Foreign  Laws;    Municipai, 
Corporations. 

ANNUITY. — See  the  title  Annuity,  vol.  1,  p.  329,  and  references  there  given. 
As  to  granting  of  annuities  to  Indians,  see  post,  Indians. 

ANNUL. — See  note  a. 
"  ANOTHER  COUNTRY.— See  note  b. 

ANOTHER   SUIT  PENDING.— See  ante,  Abatement,  Revival  and  Sur- 
vival, p.  1. 

ANSWER. — See  post,  Equity;    Pleading;    Quieting  Title. 

ANTICIPATION.— See  post,  Patents. 

ANTI-TRUST  LAWS.— See  post,  AIgngpolies  and  Corporate  Trusts. 


the  exaction  of  fees  of  any  kind,  except 
such  as  may  at  any  time  be  ordered  or 
exacted  by  the  secretary  of  agriculture.' 
There  can  be  no  doubt  that  this  is  the 
supreme  law,  and  if  the  state  law  con- 
flicts with  it  the  state  law  must  yield. 
But  the  law  of  Kansas  now  before  us 
recognizes  the  supremacy  of  the  national 
law  and  conforms  to  it."  Asbell  v.  Kansas, 
209  U.  S.  251,  257,  52  L.  Ed.  778,  28  S. 
Ct.    485. 

327-39a.  What  constitutes  violation  of 
quarantine  laws. — United  States  v.  Balti- 
more, etc.,  R.  Co.,  222  U.  S.  8,  56  L.  Ed. 
68,  32    S.    Ct.   6. 

"A  sensible,  definite  meaning  is  ex- 
pressed. There  must  be  a  delivery  for  or 
a  receiving  for  transportation  'from  the 
quarantined  portion  of  any  state  or  terri- 
tory *  *  *  into  any  other  state  or  terri- 
tory *  *  *'  That  reception  and  that  trans- 
portation are  the  elements  of  the  crime 
and  must  exist  to  constitute  it.  None  of 
these  elements  are  charged  against  the 
defendant.  It  did  not  receive  the  sheep 
for  transportation  in  Kentuckj^  or  trans- 
port them  'from'  Kentucky  'into'  Ohio." 
United  States  v.  Baltimore,  etc.,  R.  Co., 
222  U.  S._8,  14,  56  L.  Ed.  68,  32  S.  Ct.  6. 

A  carrier  does  not  transport,  or  de- 
liver, or  receive  live  stock  for  transporta- 
tion, from  a  quarantined  portion  of  a 
state,  into  another  state,  in  violation  of 
the  prohibition  of  Act  ]\rarch  3.  1905,  c. 
1496,  §  2,  33  Stat.  1264  (U.  S.  Comp.  St. 
Supp.  1909,  p.  1185),  where,  being  a  con- 
necting carrier,  it  receives  the  live  stock 
from  the  preceding  carrier,  at  a  point  m 
a  state  other  than  the  quarantined  state, 
for  delivery  to  a  point  in  the  same  state. 
United  States  v.  Baltimore,  etc.,  R.  Co., 
222  U.  _S.   8.   56  L.   Ed.   68,   32   S.   Ct.   6. 

"Section  2  forbids  railroad  companies 
and  others  engaged  in  transportation  to 
'receive  for  transportation  or  transport 
*  *  *  from  any  quarantined  portion  of 
any   state   or  territory  or   the   District   of 


Columbia  into  any  other  state  or  terri- 
tory or  the  District  of  Columbia,  any  cat- 
tle or  other  live  stock.'  The  statute  also 
forbids  the  delivery  for  transportation, 
or  the  driving  on  foot  or  transporting  by 
private  conveyance,  of  such  stock  'from 
a  quarantined  state  or  territory  or  the 
District  of  Columbia,'  or  from  any  por- 
tion of  either,  'into  any  other  state  or 
territory  or  the  District  of  Columbia.' 
And  these  words  are  repeated  in  other 
sections  as  descriptive  of  the  transporta- 
tion to  which  the  statute  applies."  United 
States  V.  Baltimore,  etc.,  R.  Co.,  222  U. 
S.  8,  13,  56  L.   Ed.  68,  32  S.  Ct.  6. 

330-a.  Annul  not  meaning  rescission 
or  avoidance. — In  a  contract  between  the 
United  States  in  a  partnership  for  dredg- 
ing it  was  provided  that  if  the  parties  of 
the  second  part  should  fail  to  begin  on 
time  or  should  fail  to  prosecute  faith- 
fully and  diligently  the  work,  the  part}^ 
of  the  first  part  should  be  entitled  to 
annul  the  contract  on  giving  notice  in 
writing  to  that  effect,  it  was  held  that  the 
ill-chosen  word  annul  in  the  contract  re- 
peated in  the  notice  to  the  contractors 
and  contained  in  the  complaint,  can  not  be 
taken  literally  in  any  of  them.  It  means 
to  refuse  to  perform  further,  not  to  re- 
scind or  avoid.     United  States  v.  O'Brien, 

220  U.  S.  321,  55  L.  Ed.  481.  31  S.  Ct.  406. 
See  United  States  v.  McMullen,  222  U.  S. 
460.  56  L.  Ed.  269.  32  S.  Ct.  128.  See, 
also.   post.   UNITED    STATES. 

330-b.  Philippine  Islands  not  another 
country. — The  Philippine  Islands,  notwith- 
standing their  remoteness,  are  not  an- 
other country  within  the  meaning  of  the 
eighth  article  of  the  Cuban  Treaty,  of  De- 
cember 17,  1903,  providing  that  the  rates 
therein  granted  shall  continue  "preferen- 
tial in  respect  to  all  like  imports  from 
other  countries."     Eaber  v.  United  States,. 

221  U.  S.  649.  658.  55  L.  Ed.  897.  31  S.  Ct.. 
659.     See  post,  REVENUE  LAWS. 


31 


330 


ANY. 


Vol.  I. 


ANY.— See  note  3. 


330-3.  Any  agent. — Under  the  pro- 
visions of  §  5209,  Rev.  Stat.,  prohibiting 
associations  from  making  false  entries  or 
statements  with  intent  to  deceive  "any 
agent  appointed  to  examine  the  affairs  of 
any  such  association,"  a  false  entry  as 
to  the  condition  of  a  bank  made  to  the 
comptroller  of  the  currency  under  §  5311. 
Rev.  Stat.,  is  within  the  prohibition.  The 
words  "any  agent  appointed  to  examine," 
etc.,  are  all  embraced,  and  can  not  rea- 
sonably be  held  to  exclude  the  comp- 
troller, the  principal  agent  endowed  by 
the  statute  with  the  power  to  examine 
national  banks.  The  rule  of  strict  con- 
struction does  not  require  tliat  the  nar- 
rowest technical  meaning  be  given  to  the 
words  employed  in  a  criminal  statute,  in 
disregard  of  their  context  and  in  frustra- 
tion of  the  obvious  legislative  intent. 
United  States  v.  Corbett.  215  U.  S.  233. 
54  L.  Ed.  173,  30  S.  Ct.  81.  See  post, 
BANKS  AND  BANKING. 

Any  employee. — The  Employers'  Lia- 
bility x\ct,  July  11,  1906.  provides  that  a 
common  carrier  engaged  in  interstate  and 
foreign  commerce  shall  be  liable  for  the 
death  or  injury  of  "any  of  its  employees" 
which  may  result  from  the  negligence  of 
"any  of  its  officers,  agents  or  employers." 
As  the  word  any  is  unqualified,  it  follows 
that  liability  to  the  servant  is  coextensive 
with  the  business  done  by  the  employers 
whom  the  statute  embraces;  that  is,  it  is 
in  favor  of  any  of  the  employees  of  all 
carriers  who  engage  in  interstate  com- 
merce. This  also  is  the  rule  as  to  the 
one  who  otherwise  would  be  a  fellow 
servant,  by  whose  negligence  the  injury 
or  death  may  have  been  occasioned,  since 
it  is  provided  that  the  right  to  recover 
on  the  part  of  any  servant  will  exist,  al- 
though the  injury  for  which  carrier  is  to 
be  held  resulted  from  "the  negligence  of 
any  of  its  officers,  agents  or  employees." 
The  act,  then,  being  addressed  to  all  com- 
mon carriers  engaged  in  interstate  com- 
merce, and  imposing  a  liability  upon  them 
in  favor  of  any  of  their  employees,  with- 
out qualification  or  restriction  as  to  the 
business  in  which  the  carriers  or  their 
employees  may  be  engaged  at  the  time 
of  the  injury,  of  necessity  includes  sub- 
jects wholly  outside  of  the  power  of  con- 
gress to  regulate  commerce.  The  statute 
was  held  repugnant  to  the  constitution 
and  invalid.  The  Employers'  Liabilitv 
Cases,  207  U.  S.  463,  52  L.  Ed.  297,  28  S. 
Ct.  141.  See  El  Paso,  etc.,  R.  Co.  v. 
Gutierrez,  215  U.  S.  87,  54  L.  Ed.  106,  30 
S.  Ct.  21.  See,  also,  post,  INTERSTATE 
AND  FOREIGN  COMMERCE. 

Any  immoral  purpose. — See  post,  IM- 
MORAL. 

Any  part  of  the  trade  or  commerce. — 
In   the    second   section    of   the    Anti-Trust 


Act  of  July  2,  1890,  providing  "that  every 
person  who  shall  monopolize,  or  attempt 
to  monopolize,  or  combine  or  conspire 
with  any  other  person  or  persons,  to 
monopolize  any  part  of  the  trade  or  com- 
merce among  the  several  states,  or  with 
foreign  nations,'"  shall  be  deemed  guilty 
of  a  misdemeanor,  the  commerce  referred 
to  b}^  the  words  "any  part"  construed  in 
the  light  of  the  manifest  purpose  of  the 
statute  has  both  a  geographical  and  'a. 
distributive  significance,  that  is,  it  in- 
cludes any  portion  of  the  United  States 
and  any  one  of  the  classes  of  things  form- 
ing a  part  of  interstate  or  foreign  com- 
merce. Standard  Oil  Co.  z'.  United 
States,  221  U.  S.  1,  61,  55  L.  Ed.  619,  31 
S.  Ct.  502.  See  post,  MONOPOLIES 
AND   CORPORATE  TRUSTS. 

Any  patent  heretofore  issued. — A  pat- 
ent from  the  United  States,  invalid  when 
made,  after  five  years  without  attack, 
must  be  deemed  to  have  the  same  effect 
as  against  the  United  States  in  a  suit  to 
remove  a  cloud  on  title  as  though  it  were 
valid  when  issued,  in  view  of  the  act  of 
March  3,  1891  (26  Stat,  at  L.  1099,  chap. 
561),  §  8,  although  this  section  in  form 
only  bars  suits  to  annul  the  patent.  When 
the  statute  refers  to  "any  patent  hereto- 
fore issued,"  it  describes  the  purport  and 
source  of  the  document,  not  its  legal  ef- 
fect. If  the  act  were  confined  to  valid 
patents  it  would  be  almost  or  quite  with- 
out use.  United  States  v.  Chandler- 
Dunbar,  etc.,  Power  Co.,  209  U.  S.  447. 
52  L.  Ed.  881,  28  S.  Ct.  579.  See  post, 
PATENTS. 

Any  person.— See  post,   PERSON. 

Any  railroad. — Cars  used  in  moving  in- 
trastate traffic  on  a  railway  which  is  a 
highway  of  interstate  commerce  are  com- 
prehended by  the  Safety  Appliance  Act 
of  March  2,  1893,  declaring,  inter  alia,  that 
its  provisions  and  requirements  shall  ap- 
ply to  all  trains,  locomotives,  tenders, 
cars,  and  similar  vehicles  used  on,  any 
railroad  engaged  in  interstate  commerce, 
or  in  the  territories  and  District  of  Co- 
lumbia, and  to  all  other  locomotives, 
tenders,  cars,  and  similar  vehicles  used  in 
connection  therewith.  Southern  R.  Co.  v. 
United  States,  222  U.  S.  20,  56  L.  Ed.  72, 
32  S.  Ct.  2.  See  post.  INTERSTATE 
AND  FOREIGN  COMMERCE. 

Any  case. — In  §  14  of  the  Act  of 
March  3,  1891,  establishing  a  court  of 
private  land  claims,  provides  that  if,  in 
any  case  it  shall  appear  that  the  lands  or 
any  part  thereof  decreed  to  any  claimant 
under  the  provisions  of  this  act  shall 
have  been  sold  or  granted  by  the  United 
States  to  any  other  person,  such  title 
from  the  LTnited  States  to  such  other  per- 
son shall  remain  valid,  notwithstanding 
such  decree,  with   a  provision   for  a  judg- 


32 


Vol.  I 


APPARATUS. 


332 


ANYTHING  ELSE.— See  note  la. 
APEX.— See  Apex,  vol.  1,  p.  332. 
APPARATUS.— See  note  2a. 


See  post,  Minims  and  Minerals. 


ment  in  favor  of  the  claimant,  against  the 
United  States.  It  was  contended  that  the 
words  "if  in  any  case"  it  shall  appear 
that  the  lands  have  been  sold  by  the 
United  States  apply  as  well  to  the  pro- 
ceeding by  the  United  States  as  to  one 
where  the  claimant  goes  forward.  The 
court  held  that  the  words  did  not  require 
that  construction.  "If  in  any  case''  means 
in  any  case  before  the  court  that  the  act 
establishes.  When  the  section  goes  on, 
"it  shall  appear  that  the  lands  or  any 
part  thereof  decreed  to  any  claimant  un- 
der the  provisions  of  this  act  shall  have 
been  sold,"  it  is  reasonable  to  suppose 
that  it  has  reference  to  those  cases  in 
which  a  claimant  is  seeking  a  decree;  that 
is  to  say,  where  the  claimant  is  the  plain- 
tiff in  the  case.  Richardson  z'.  Amsa,  ;218 
U.  S.  289,  54  L.  Ed.  1044,  31  S.  Ct.  23.  See 
post,  COURTS;  PUBLIC  LANDS. 

332-la.  Property  subject  to  seizure  and 
forfeiture  under  revenue  laws. — Sub- 
stances which  are  not  in  themselves  tax- 
able under  the  laws  of  the  United  States 


are  not  embraced  in  the  words  anything 
else,  as  used  in  U.  S.  Rev.  Stat.,  §  3455. 
U.  S.  Comp.  Stat.  1901,  p.  2279,  providing 
for  a  seizure,  forfeiture,  and  penalty  for 
selling  packages  which  contain,  at  the 
time  of  sale,  anything  else  than  the  con- 
tents when  the  same  were  lawfully 
stamped  by  a  revenue  officer,  even  where 
there  is  no  intent  to  defraud,  and  for  a 
much  heavier  penalty  where  there  is  such 
fraudulent  intent.  United  States  v.  Graf 
Distilling  Co.,  208  U.  S.  198,  52  L.  Ed.  452. 
28  S.  Ct.  264.  See  post,  REVENUE 
LAWS. 

332-2a.  Apparatus  and  process  dis- 
tinguished.— "A  process  and  an  apparatus 
by  which  it  is  performed  are  distinct 
things.  They  may  be  found  in  one  pat- 
ent; they  may  be  made  the  subject  of 
different  patents."  Leeds,  etc.,  Co.  v. 
Victor,  etc.,  Mach.  Co.,  213  U.  S.  301,  318, 
53  L.  Ed.  805.  29  S.  Ct.  495;  Expanded 
Metal  Co.  r.  Bradford.  214  U.  S.  366,  385. 
53  L.  Ed.  1034.  29  S.  Ct.  652.  See  post, 
PATENTS. 


12  U  S  Enc— 3 


33 


APPEAL  AND  ERROR.  Vol.  I. 


APPEAL  AND  ERROR. 

n.  The  Various  Remedies  Considered,  44. 

B.  Appeal  and  Writ  of  Error,  44. 

2.  Writ  of  Error,  44. 

b.  Proceedings  Reviewable  by  Writ  of  Error,  44. 
(1)   Common-Law  Proceedings,  44. 
6.  Review  of  Proceedings  in  Territorial  Courts,  44. 
•a.  In  General,  44. 

D.  Mandamus,  44. 

1.  In  General,  44. 

E.  Habeas  Corpus,  44. 

1.  In  General,  44. 

F.  Certiorari,  45. 

1.  In  General,  45. 

III.  Appellate  Jurisdiction,  45. 

A.  Acquisition  and  Extent,  45. 

3.  Source  of  Appellate  Power,  45. 

C.  Jurisdiction  in  Particular  Proceedings,  45. 

1.  In  Criminal  Cases,  45. 

d.  Exceptions  to  General  Rule,  45. 

(4)   Habeas  Corpus  Proceedings,  45. 

e.  Statutory   Provisions,  46. 

D.  Appellate  Jurisdiction  over  Particular  Courts  and  Tribunals,  46. 

1.  Over  District  Courts,  46. 

b.  Under  Circuit  Court  of  Appeals  Act,  46. 
(i^)   In  General,  46. 
(1)   In  Cases  in  Which  the  Jurisdiction  of  the  Court  Is  in 
Issue,  46. 

(3)  In  Cases  of  Conviction  of  Infamous  Crimes,  47. 

(4)  In  Cases  Involving  the  Construction  or  Application  of 

the  Federal   Constitution,  47. 

(5)  In  Cases  Involving  the  Constitutionality  of  Any  Law 

of  the  United  States  or  the  Validity  or  Construction 
of  Treaties,  47. 

2.  Over  Circuit  Courts,  47. 

b.  By  Direct  Appeal,  47. 

(1)   Under  Circuit  Court  of  Appeals  Act,  47. 
bb.  In  \\'hat  Cases  Allowable,  47. 

aaa.  In    Cases  in    Which    the   Jurisdiction   of    the 
Court  Is  in  Issue,  47. 
aaaa.  In  General,  47. 
bbbb.  Jurisdiction  of  Court  as  a  Federal  Court 

I\Iust   Be   Involved,  48. 
eeee.  What  Are  Questions  of  Jurisdiction.  49. 
bbbbb.    Specific    Applications    of    General 
Rule.  49. 
ffff.  Necessity  for  Finality  of  Judgment,  50. 
hhhh.  The   Certificate.   51.  ^ 
bbbbb.  Necessity  for,  51. 
ddddd.  Form  and  Requisites,  51. 

34 


Vol.  I.  APPEAL  AND  ERROR. 

eeeee.  Presumptions  on  Appeal  with  Re- 
spect to  Certificate,  51. 
jjjj.  Double   Appeals,   51. 
kkkk.  Hearing  and  Determination,  52. 
1111.  Scope  of  Review,  52. 
mmmm.  \\'aiver,  53. 

nnnn.  Perfecting  Appeal,   53. 
ccc.  In  Cases  of  Conviction  of  Capital  or  Infamous 
Crimes,  53. 
aaaa.  By  Act  of   Alarch  3rd,   1891,  53. 
aaaaa.  In  General,  53. 
ddd.  In   Cases   Involving  the  Construction  or  Ap- 
plication of  the   Federal  Constitution,  53. 
bbbb.  Determination  of   Question,   53. 
cccc.  Proceedings   Reviewable,   56. 
ffff.  Time    When      Constitutional     Question 

Alust  Exist,  56. 
gggg.  Scope  of  Review,  56. 
eee.  In    Cases    Involving    the    Constitutionality   of 
Any  Law  of  the  United  States  or  the  Va- 
lidity or  Construction  of  Treaties,  56. 
aaaa.  In  General,  56. 
bbbb.  Determination  of  Question,  57. 
fff.  In    Cases    Involving    the    Constitutionality   of 
State  Laws  and  Constitutions,  57. 
aaaa.  In  General,  57. 
dddd.  Showing  as  to  Jurisdiction,   57. 

3.  Over  Circuit  Court  of  Appeals,  58. 

b.  By  Appeal  or  Writ  of  Error,  58. 

(4)  Decisions  Reviewable,  58. 

ee.  Cases  Dependent  upon  Citizenship  of  Parties,  58. 

gg.  Cases  Arising  under  the  Criminal  Laws,  61. 

hh.  Cases  Arising  under  the  Trademark  Laws,  61. 
(7)   Reversal  or  Affirmance,  62. 
d.  By  Certiorari,  62. 

(1)   In  General,  62. 

(3)   In  What  Cases  the  Writ  May  Issue,  62. 

aa.  In  General,  62. 

(5)  Review  of  Interlocutory  Orders,  63. 
(9)   Scope  of  Review,  63. 

(9>4)  Affirmance,  64. 
CIO)   Rendering  and  Ordering  Final  Judgment,  64. 

4.  Over  Courts  of  the  District  of  Columbia,  64. 

a.  Right  to  Appellate  Review,  64. 

b.  W^hat  Law  Governs,  65. 

(1)  In  General,  65. 

d.  Decisions  Reviewable,  65. 

(2)  Necessity  for  Finality  of  Judgments  and  Decrees,  65. 

(3)  Summary   and    Special   Proceedings,   65. 

5.  Over  Court  of  Claims,  65. 

a.  In  General.  65. 

f.  Decisions  Reviewable,  66. 

(3)  Jurisdiction  as  Dependent  upon  Nature  and  Form  of 
Judgment,  66. 

33 


APPEAL  AND  ERROR.  Vol.  I. 

bb.  Decision  Must  Be  Judicial  in  Its  Nature,  66. 
h.  Review  of  Findings  on  Questions  of  Fact,  66. 

(1)   In  General,  6b. 
j.  Transfer  of  Cause,  66. 

(4)  The  Record,  66. 

6.  Over  Territorial  Courts,  66. 

a.  In  General,  66. 

b.  Under  Circuit  Court  of  iVppeals  Act,  67. 

c.  Over  the  Indian  Territory,  67. 

d.  Over  Territory  of  Hawaii,  67.    * 

f.  Over  Particular  Proceedings,  68. 

(1)   In  Criminal  Cases,  68. 
h.  Assignment  of  Errors,  68. 
i.  Scope  and  Extent  of  Review,  68. 

(1)  In  General,  68. 

(2)  Necessity  for  Finality  of  Decision,  68. 

(3)  Review  of  Questions  of  Fact,  69. 
•aa.  In  General,  69. 

bb.  Review  of  Findings  of  Fact  by  Territorial  Court,  69. 

(5)  Questions  of  Practice,  69. 
j.  The  Statement  of  the  Facts,  70. 
1.  Mandate,  71. 

m.  Afifirmance  or  Reversal,  71. 

7.  Over  State  Courts,  71. 

a.  In  General,  71. 

g.  Decision  Must  Be  That  of  "Highest  Court"  in  State,  72. 
h.  What  Is  the  Assertion  of  "a  Right  or  Immunity,"  7c). 

i.  Decisions   Reviewable,   74. 

(2)  Necessity  for  Finality  of  Judgment  or  Decree,  74. 
k.  Necessity  for  Adverse  Decision,  74. 

(3)  Under  Third  Clause  of  the  Statute,  74. 
1.  Parties,  74. 

(1)   In  General,  74. 
m.  Who  May  Make  the  Objection,  74. 
p.  Showing  as  to  Jurisdiction,  75. 

(1)  In  General,  75. 

(2)  That    Federal   Question    W^as    Actually   or   Necessarily 

Raised  and  Decided,  75. 
aa.  In  General,  75. 

(3)  Where  Decision  Is  Based  on  Independent  Grounds,  76. 

(4)  Questions   Must  Be  Re.al   and  Not  Fictitious  or  Friv- 

olous, 78. 
(10)  Time  and  Manner    of    Showing  Existence  of  Federal 
Question,   79. 
aa.  In  General,  79. 
bb.  Must  Be  "Specially  Set  Up  or  Claimed,"  79. 

aaa.  In  General,  79. 
ee.  Certificate  of   Presiding  Judge  of   State  Court,  80. 

ddd.  Weight  and  Sufficiency,  80. 
ff.  Time  of  Claiming  Federal  Question,  80. 
aaa.  In  General,  80. 
aaa>4.  In    Assignments    of     Error     in     Federal    Su- 
preme Court,  80. 
iii.  On  Second  Appeal,  81. 
kkk.  In     Petition     for    Writ    of    Error    to    This 
Court,  81. 

36 


Vol.  I.  APPEAL  AND  ERROR. 

mmm.  In  Petition   for  Rehearing,  81. 
aaaa,.  In  General,  81. 

bbbb.  Qualifications  of  General  Rule,  81. 
000.  Raising  Federal  Question   for   First   Time  in 
This  Court,  82.'^ 
cj.  Decisions  Reviewable,  82. 

(2  1/5)   Denial  of  Defenses  Claimed  under  Statutes    of    Ter- 
ritories, 82. 
(2  2/5)   Claim  of  Right  under  Safety  Appliance  Act,  82. 
(2  3/5)   Denial  of  Rights -under  the  Copyright  Laws,  82. 
(2  4/5)   Denial  of  Rights  under  Federal  Incorporation  Act,  83. 

(4)  Denial  of  Rights  under  National  Bank  Act,  83. 
bb.  Showing  as  to  Jurisdiction,  83. 

(5)  Denial  of  Rights  under  Bankrupt  Act,  83. 

(6)  Denial     of     Right     to     Remove     Causes     to     Federal 

Courts,  84. 
aa.  In  General,  84. 

(7)  Denial  of  Full  Faith  and  Credit  of  Judgments,  Records 

and  Judicial  Proceedings  of   Sister  States,  84. 
(7y2)   Denial    of    Full    Faith    and    Credit    to    Judgments    of 
Courts  of   Foreign   States   and   Nations,  85. 
(17)   Denial  of  Due  Process  of  Law  or  Equal  Protection  of 
the  Laws,  85. 
aa.  In  General,  85. 
jj.   Showing  as  to  Jurisdiction,  86. 
(19)   Denial   of   Rights   under   the   Commerce   Clause  of  the 

Constitution,  86. 
(24)   Claim  of  Title  to  Land  under  United  States,  88. 
aa.  In  General,  88. 
bb.  Construction  of   Patents,  88. 

cc.  Titles  Claimed  under  Patents   Based  upon   Spanish 
or  Mexican  Grants,  88. 
( 39)   Questions  Arising  under  Federal  Mining  Statutes,  89. 
(46)   Questions  xA-rising  under  the  Public  Land  Acts,  89. 
(50)   Federal  Statutes  Relating  to  Rivers  and  Harbors,  89. 
{S5)   Impairment  of  Obligation   of   Contract,  89. 
aa.  In  General,  89. 

bb.  Prior  or  Subsequent  Legislation,  90. 
kk.  Determination    as    to    Validity.    Interpretation    and 
Existence  of  Contract,  90. 
11.  Showing  as  to  Jurisdiction,  90. 

(61)  Questions  of  General  Law,  91. 
aa.  In  General,  91. 

bb.  Various     Specific     Applications     of     the     General 

Rules,  91. 
dd.  General  Principles  of  Equity,  93. 
ee.  Principles  of   Comity,  93. 
ff.  Res  Adjudicata,  Laches  and  Estoppel,  93. 
gg.  Qualifications  of  General   Rules,  94. 

(62)  Where  Decision  of  State  Court  Depends  upon  the  Con- 

struction of   State  Statutes  and  Constitutions,  94. 
aa.  In  General,  94. 

bb.  Various     Specific     Applications     of     the     General 
Rules,  94. 

37 


APPEAL  AND  ERROR.  Vol.  I. 

cc.  Enactment  of  State   Statutes,  95. 
(63)   Where  Decision  of   State  Court  Depends  upon  Ques- 
tions of  State  Practice  and  Procedure,  95. 
s.  Transfer  of  Cause,  96. 

(4)   Allowance  of  Writ  of  Error,  96. 
cc.  By  Whom  Allowed,  96. 
(13)   Assignment   of   Errors,   96. 
t.  The  Record,  96. 

(1)  In  General,  96. 

(2)  Form  and  Contents  of  Record,  96. 
dd.  Petition   for  Rehearing,  96. 
hh.  Assignment  of  Errors,  96. 

u.  Scope  of  Review,  97. 

(1)  In  General,  97. 

(2)  Irregularities  and  Mere  Errors,  98. 
(4)   Questions  of  Fact,  98. 

aa.  In  General,  98. 

bb.  Rulings  on  Questions  of  Evidence.  99. 
cc.  Findings   of   Fact  by   Referee,   100. 
ee.  Rule  in  Equity  Proceedings,   100. 
V.  Affirmance,  Reversal  or  Dismissal,   100. 

(3)  Reversal,   100. 

aa.  In  General,  100. 

(4)  Dismissal,   100. 

aa.  Grounds   for  Dismissal,    100. 

ddd.  Want  of  Substantiality  in  Claim,   100. 
eee.  Moot  Cases,   101. 

(5)  Hearing  and  Determination,  101. 

(6)  Modification,   101. 
y.  Mandate,  101. 

(1)  Remand   for  Further  Proceedings,   101. 
(4)   Compliance  with   Mandate,   101. 

8.  Over  Military  Courts  and  Tribunals,   102. 

9.  Over  Supreme  Court  of  Philippine  Islands.   102. 

a.  In  General,   102. 

b.  Amount  in   Controversy,  102. 

c.  Remedies  for  Transferring  Cause,   103. 

d.  Re-Examination  of  Facts,   103. 
h.  The  Record,  103. 

i.  Scope  of  Review,   104. 
11.  Over  Supreme  Court  of  Porto  Rico  and  United  States  District 
Court,   104. 

a.  In  General,  104. 

b.  Jurisdiction  as  Dependent  on  Amount  in  Controversy,  104. 

c.  Jurisdiction  as  Dependent  on  Claim  of  Federal  Right,  105. 

e.  Necessity  for  Finality  of  Judgment,  105. 

f.  Review  of  Findings  of  Fact,   106. 
E.  Under  Circuit  Court  of  Appeals  Act,   106. 

3.  Purpose  or  Object  of  Statute,  106. 

9.  Appellate  Jurisdiction  of  Circuit  Court  of  Appeals,   106. 

a.  In  General,  106. 

i.  Finality  of  Judgments  and  Decrees,  106. 

(2)  Interlocutory    Orders    Granting    or     Refusing    Injunc- 

tions,   106. 
j.  Limitations  upon  Appeal,   107. 
k.  Double  Appeals,  107. 

38 


Vol.  I.  APPEAL  AND  ERROR. 

(1>^)   Scope  of  Review,   107. 
m.  Mandate,   107. 
F.  Appellate  Jurisdiction  as  Dependent  upon  Amount  or  Value  in  Con- 
troversy, 107. 

2.  What  Law  Governs,   107. 

a.  In  General,  107. 

3.  Review  of   Proceedings   in   Particular   Courts,    108. 

a.  Appeals  from  Territorial  Courts,  108. 

d.  Appeals  from  District  of  Columbia.   108. 
11.  Amount  Actually  in  Dispute  Controls,   108. 

a.  In  General,  108. 

e.  Collateral  Efifect  of  Judgment,  108. 

13.  Aggregate  Amount  of  Demand,  108. 

g.  Suit  to  Recover  Possession  of  Land,  108. 
h.  Hearing  Causes  Together,    109. 
i.  Qualification  of  General  Rule,  109. 

( 1 )   Persons  Having  Common  and  Undivided  Interests,  109. 

14.  Set-Ofif  and  Counterclaim,   109. 

16.  Showing  and  Determination  of  Amount,  109. 
d.  Affidavits,  109. 

o.  Determination  of  Amount  in  Particular  Proceedings,  109. 
(3)   In  Probate  Proceedings,  109. 

(5)  In  Suits  to  Foreclose  Mortgages,   109. 

(6)  In  Suit  to  Compel  City  to  Lew  Tax  to  Pay  Its  Debt, 

110. 

IV.  Decisions  Reviewable,   110. 

B.  Nature,  Form  and  Validity  of  Judgment  as  Governing  Right  of  Re- 

view, 110. 

1.  In  General,  110. 

2.  Decision  Must  Be  Exercise  of  Judicial  Power,  110. 

C.  Finality  of  Decision  as  Governing  Right  of  Review,  111. 

2.  Necessity  for  Finality,  111. 

a.  In  General,  111. 

b.  Under  Circuit  Court  of  Appeals  Act,  111. 

3.  Statement  of  General  Rules  or  Tests,  111. 

a.  In  General,  111. 

4.  Particular  Judgments,  Orders  and  Decrees  Considered,  112. 

k.  Decisions  with  Respect  to  Reference,  112. 

(1)   Decree  Ordering  a   Reference,   112. 
n.  Decisions  Affecting  Pleadings,   112. 

(1)   Judgments  on  Demurrers,   112. 
p.  Vacating  and  Setting  Aside  Judgment,  112. 
s.  Judgments  Reversing  and  Remanding  Causes,   113. 

(1)   In  General,  113. 
t.  Orders  Made  in  Progress  of  Cause,  113. 

(6)   Order  Directing  Witness  to  Testify  and  Produce  Doc- 
uments, 113. 

D.  Discretionary  Matters.   113. 

2.  Amendments,  113. 

3.  Bail,  113. 

8.  Continuances,  113. 

9.  Costs,   114. 
13.  Evidence,  114. 

d.  Witnesses,    114. 
16.  Injunctions,   114. 
18.  Intervention,  114. 

39 


APPEAL  AND  ERROR.  ^  Vol.  I. 

25.  New  Trials,  114. 
27.  Pleadings,  114. 

a.  Supplemental  Pleadings,  ll4. 

e.   Withdrawal   and   Striking   Out   Pleadings,    115. 
27 Yz.  Power  to  Punish  for  Contempt,  115. 
39.  Acts  of  Ofificers  of  the  Various  Departments,   115. 
E.  Review  of  Questions  of  Fact,  115. 

I.  In  General,  115. 

3.  Concurrent   Decisions   of   Two   Inferior   Courts,    115. 

a.  In  General,  115. 

7,  Weight  and  Sufficiency  of  Evidence,  116. 

8.  Excessiveness  of  Damages,  117. 

10.  Decisions  of  Land  Department,   117. 

12.  How  Findings  of  Fact  by  the  Court  May  Be  Reviewed,  117. 

b.  Review  of  Findings  of  Court,  117. 

(2)    Statutory  Rule,    117. 

bb.  To  What  Courts  Applicable,  117. 

ff.  Form  and  Sufficiency  of  Findings,  117. 

bbb.  Facts  Must  Be  Found  by  Circuit  Court,  117. 
kk.  Review  of  Findings  upon  Questions  of  Fact,  118. 
e.   Review  of  Findings  by  Referees,  Arbitrators,   etc.,   118. 

V.  Certificate  of  Division  of  Opinion,   118. 

A.  Under  the  Acts  of  1802  and  1872,  118. 

II.  Affirmance  or  Reversal,   118. 
b.  Division  of  Opinion,  118. 

B.  Under  Circuit  Court  of  Appeals  Act,  118. 

1.  In  General,  118. 

5.  Questions  to  Be  Brought  Up  and  Considered,   118. 

e.  Discretionary  Matters,  118. 

6.  Form,  Contents  and  Sufficiency  of  Certificate,  119. 

a.   In  General,   119. 

d.  Certificate  Must   Present  a  Distinct  Point  or  Proposition  of 
Law,  119. 

7.  Review  of  Questions  of  Fact,  119. 

8.  Right  to  CerTify  the  Whole  Case  to  This  Court,  119. 

11.  Affirmance — Division  of  Opinion,   119. 

VI.  Parties  and  Persons  Entitled  to  Appeal,  119. 

A.  Who  Entitled  to  Appeal,  119. 

1.  In  General,  119. 

3.  Party  Aggrieved,    120. 

4.  Appealable  Interest,   120. 

a.  In  General,  120. 

5.  Particular  Parties  and  Persons  Considered,   120. 

k.  States,  120. 

(2)  The  State  or  Lmited  States  in  Criminal  Cases,  120. 

(a)  Former  Rule  as  to  Right  of  United  States  to  Ap- 

peal, 120. 

(b)  Statutes    Allowing    United    States    an    Appeal  in 

Criminal  Cases,  120. 
aa.  Right  of  Appeal  and  Construction  of   Statute, 

120. 
bb.  Scope  of  Review,  123. 

B.  Proper  and  Necessary  Parties,  124. 

1.  Plaintiff  in  Error,  124. 
a.  In  General,  124. 

40 


Vol.  I.  APPEAL  AND  ERROR. 

c.  Parties  to  Joint  Judgments  and  Decrees,  125. 

(l)-In  General,  125. 

(3)  Summons    and    Severance   or   Equivalent    Proceedings, 

125. 

(4)  Limitations  of  General  Rule,   125. 
E.  Death  of  Party,  125. 

2.  Of  PlaintiiT  in  Error,  125. 

3.  Of  Defendant  in  Error,  125. 

VII.  Waiver  of  Right,  125. 

B.  Implied  Waiver  or  Release  of  Errors,  125. 
1.  In  General,  125. 

VIII.  Exceptions  and  Objections,  126. 

A.  General  Principles,  126. 

3.  Necessity  for  Exceptions,  126. 

4.  Time  for  Perfecting  Exceptions,  126. 

B.  Application  of  Rules  to  Particular  Instances,  126. 

1.  Form  of  Action,  Modes  of    Procedure  and    Irregularities    at  the 

Trial,  126. 
6.  Matters  of  Defense,  126. 
13.  Instructions,  126. 

b.  Objections  Must  Be  Made  below,  126. 

d.  Form  and  Sufficiency  of  Exceptions  and  Objections,  126. 

e.  Time  for  Excepting,  126. 

17.  Jurisdiction  and  A'enue,  127. 

a.  In  General,  127. 

b.  Equity  Jurisdiction,  127. 

(2)  Adequate  Remedy  at  Law,  127. 

18.  Parties,  127. 

a.  For  Want  of  Proper  Parties,  127. 

b.  For  Misjoinder  of  Parties,  127. 

19.  Pleadings,  128. 

b.  Plea  or  Replication,  128. 
30.  Criminal  Proceedings,  128. 

IX.  Transfer  of  Cause,  128. 

C.  Prayer  for  and  Allowance  of  Appeal,  128. 

2.  The  Petition  or  Application,  128. 

d.  Amendment  of  Petition,  128. 

D.  Limitations  upon  Time  for  Taking,  128. 

2.  In  Particular  Proceedings  and  Courts,  128. 

h.  In  Criminal  Cases,  128. 

3.  When  Statute  Begins  to  Run,  128. 

4.  Postponement,   Suspension  or  Interruption,   129. 

a.  When  Is  an  Appeal  Taken,  129. 

b.  Motion  for  New  Trial  or  Petition  for  Rehearing,  129. 

E.  The  Writ  of  Error,  129. 

6.  Amendment  of  Writ,  129. 

c.  Amendable  Defects,  129. 

(6)   Defects  with  Respect  to  the  Parties,  129. 

F.  The  Citation,  129. 

3.  Necessity  for,  129. 

b.  Appeals  Allowed  in  Open*  Court,  129. 
(1)  In  General,  129. 

G.  Appeal  Bond,  129. 

41 


APPEAL  AND  ERROR.  Vol.  I. 

2.  Necessity  for,  129. 

a.  In  General,  129. 
4.  Form  and  Sufficiency,  129. 

g.  Dismissal,  129. 
8.  Obviating  Defects  in  Bonds  and  New  Bonds,  129. 
12.  Actions  on  Bond,  129. 

a.  Liability  of  Sureties  on  Appeal  Bonds,  129. 

(4)  Liability  Fixed  by  Affirmance  of  Judgment,  129. 

(5)  Right  of  Sureties  to  Reimbursement,   129. 
H,  The  Record  or  Transcript,  130. 

4.  Errors  Not  Apparent  on  Face  of  Record  and  Matters  to  Be  Shown 
by  Record,  130. 
a.  In  General,  130. 
h.  Evidence,  130. 

(4)   Witnesses,  130. 
j.  Papers  and  Documentary  Evidence,  130. 
(1)  In  General,  130. 

7.  Filing,  130. 

c.  Time  of  Filing,  130. 

(7)    Docketing  and  Dismissing  Causes,   130. 
aa.  The  Rules  of  Court  Stated,  130. 

8.  Authentication  and  Certification,  130. 

a.  Necessity  for,  130. 
12.  Impeachment  or  Contradiction  of  Record,   130. 

X.  Assignment  of  Errors,  131. 
C.  Necessity  for,  131. 

1.  In  General,  131. 
E.  Form  and  Sufficiency,  132. 

1.  In  General,  132. 

XL  Briefs,  132. 
C.  Filing,  132. 

1.  Who  May  File,  132. 

XII.  Effect  of  Appeal,  132. 

B.  On  Jurisdiction  of  Trial  Court,  132. 
1.  In  General,  132. 
4.  Effect  on  Injunctions  Below,  132. 

XIV.  Dismissal  and  Reinstatement,  133. 
A.  Dismissal,  133. 

1.  Grounds  for  Dismissal,  133. 

a.  No  Actual  Controversy  Existing,  133. 
(1)  In  General,  133. 
(3)   Specific  Applications  of  General  Rules,  133. 

bb.    Compromise   or   Settlement  of   Controversy,    133. 
aaa.    Controversies     between    Private     Individuals, 
133. 
cc.  Criminal  Prosecutions,  133. 
aaa.  In  General,  133. 
6.  The  Motion,  134. 

a.  Uniting  Motion  to  Affirm  with  Motion  to  Dismiss,  134. 

(1)  In  General,  134. 
c.  Notice  of  Motiop,  134. 
(1)  Necessity  for,  134. 

XV.  Presumptions  on  Appeal,  134. 

A.  In  Support  of  Proceedings  Below.  134. 

42 


Vol.  I.  APPEAL  AND  ERROR. 

1.  In  General,  134. 

5.  As  to  Jurisdiction,  134. 

a.  Of  Trial  Court,  134. 

(5)   Change  of  \'enue,  134. 

6.  As  to  the  Pleadings,  134. 

e.  Waiver  or  Abandonment  of  Issues.   134. 

XVI.  Reversible  Error,  134. 

A.  Right  to  Complain  of  Error,  134. 

1.  Parties  not  Appealing,  134. 

a.  In  General,   134. 

2.  Errors   Afifecting   Co-Party,    135. 

B.  Statement  of  General  Principles,  135. 

1.  Error  Must  Be  Prejudicial,  135. 

a.  In  General,  135. 

b.  Illustrative  Cases,  135. 

(2)  Defects  and  Irregularities  in  the  Pleadings,  135. 
bb.   Striking  Out  Pleadings,   135. 

(3)  Errors  with  Respect  to  the  Evidence,  135. 
bb.  Admission  of  Evidence,   135. 

aaa.  In  General,  135. 
cc.  Exclusion  of  Evidence,  136. 

aaa.  Harmless  Error,  136. 
dd.  Witnesses,  136. 

aaa.  In  General,  136. 
ee.  Curing  Errors,  136. 

(4)  Errors  with  Respect  to  the  Instructions,   137. 
aa.  In  General,  137. 

bb.  Inaccuracies  in  Expression,  138. 
dd.  Invasion  of  Province  of  Jury,   138. 
aaa.  In  General,  138. 

(5)  Rule  in  Criminal  Cases,  138. 

2.  Presumption  as  to  Prejudice,  138. 

3.  Other  Kinds  of  Harmless  Errors  Considered,  138. 

a.  Invited  Errors,  138. 
(1)  In  General,  138. 

C.  Waiver  of  Error,  139. 

2.  Implied  Waiver,  139. 

XVII.  Hearing  and  Determination,  139. 

A^.  Determination  of  Unadjudicated  Questions,  139. 
C.  Advancement  of  Causes,  139. 

2.  What  Causes  Advanced,  139. 
e.  Criminal  Cases,  139. 
M.  Effect  of  Change  in  Law  Pending  Appeal,  139. 

2.  Repeal  of  Statutes,  139. 
O.  Scope  of  Review,  140. 

1.  In  General,  140. 

1^.  Matters  Not  Raised  in  Court  below,  140. 

7.  Matters  Not  Decided  below,  140. 

8.  In  Particular  Cases,  140. 

g.  Review  by  Supreme  Court  of  Philippine  Islands,  140. 
h.  Appeal   from  Order  Granting  Preliminarv  Injunction.    141. 
Q.  Reversal,  141. 

2.  Grounds  for  Reversal,  141. 

43 


384-399  APPEAL  AND  ERROR.  Vol.  I. 

a.  In  General,  141. 

f.  Changing  Theory  of  Case  on  Appeal,  141. 
8.  Rendition  and  Entry  of  Judgment,  141. 

a.  Rendering  and  Ordering  Final  Judgment,   141. 
(1)   In  General,  141. 
R.  Affirmance,  141. 

2.  Grounds  for  Affirmance,  141. 

aj^.  That  Contentions  Urged  for  Reversal  Are  Stare  Decisis,.  141. 

g.  Division  of  Opinion,  142. 

(1)   In  General,  142. 

(4)   Force  and  Effect  of  Judgment,  142. 

bb.  The  Rule  of  Precedents  or   Stare  Decisis,   142. 
5^.  Affirmance  without  Prejudice,  142. 
S.  Modification,  142. 
U.  Force  and  Effect  of  Decision,  142. 
1.  On  Second  Appeal,  142. 
a.  In  General,  142. 
e.  Matters  Concluded,  143. 

(1)  Jurisdictional  Matters.   143. 

CROSS   REFERENCES. 
See  the  title  Appe^\l  and  Error,  vol.  1,  p.  333,  and  references  there  given. 
In  addition,  see  post.  Bankruptcy;  Chinese;  Exclusion  Acts;  Contempt; 
Courts;   Exceptions,  Bill  of,  and  Statement  of  Facts  on  Appeal;   Man- 

HAMUS. 

As  to  appeals  from  commerce  court,  see  post.  Interstate  and  Foreign 
Commerce. 

II.   The  Various  Remedies  Considered. 

B.  Appeal  and  Writ  of  Error — 2.  Writ  oe  Error — b.  Proceedings  Reviezv- 
able  by  Writ  of  Error — (1)  Common-Law  Proceedings. — A  writ  of  error  is  the 
general  method  of  bringing  cases  to  the  federal  supreme  court ;  an  appeal  the 
exception,  confined  to  equity  in  the  main.'*-^ 

6.  Revievv^  of  Proceedings  in  Territorlvl  Courts — a.  In  General. — See 
note  72. 

D.  Mandamus — 1.  In  General. — See  note  2. 

E.  Habeas  Corpus — 1.  In  General. — See  note  26. 

384-42a.    Writ   of   error    and     appeal.—  parte  Leaf  Tobacco  Board,  222  U.  S.  578, 

Carino  v.   Insular   Government,   212   U.   S.  56  L.   Ed.  323,  32   S.  Ct.  833. 
449,  456,  53  L._  Ed.  594,  29  S.  Ct.  334.  Mandamus    can    not   be   used   as   a    sub- 

388-72.    Review   of  proceeding  in  terri-  stitute  for  an  appeal  or  writ  of  error  to 

torial  courts. — A   decree   of    the    supreme  correct  the  error,  if  any,  committed  by  a 

court    of    the    territory    of    Oklahoma,    af-  federal   circuit  court  in  denying  a  motion 

firming   a    decree    of    the    trial    court,    set-  to    remand,   which   presented    for   decision 

ting  aside   a  sale   made  under   attachment  the    question    whether    there    was    in    the 

proceedings   as    a    cloud   on    title,    and    di-  case    a    controversy    wholly   between    citi- 

recting   the    enforcement    of   a   trust   deed  zens    of   different    states,    to   the   complete 

by   sale,   is   reviewable    in     the     supreme  determination  of  which   the  state,  though 

court    of   the   United    States    only   by    ap-  named   as  a  party  plaintiff,    was     not     a 

peal.     Judgment  (1906),  85  P.  459,  16  Okl.  necessary  party.     Ex  parte   Nebraska,  209 

131,  affirmed.     Southern  Pine  Lumber  Co.  U.    S.    436,   52    L.    Ed.    876,   28    S.    Ct.    581. 

r.  Ward,  208  U.  S.  126,  52  L.  Ed.   420,  28  See    post,    MANDAMUS. 
S.   Ct.  239.  399-26.   Habeas  corpus  can  not  be  made 

395-2.    Mandamus  can  not  perform   of-  a  substitute  for  writ  of  error.      Ex  parte 

fice  of  writ  of  error.— Ex  parte   Harding,  Glasgow,  223  U.  S.  709,  56  L.  Ed.  623,  32 

219  U.  S.  363,  55  L.  Ed.  252,  31  S.  Ct.  324;  S.    Ct    519,    citing    Ex    parte    Mirzan,    119 

Ness  V.   Fisher,   223   U.    S.   683,   56   L.    Ed.  U.    S.    584,    30    L.    Ed.    513,    7    S.    Ct.    341; 

610,   32    S.    Ct.    356;    In    re    Riggs,    214    U.  Riggins   v.    United    States,   199    U.    S.    547, 

S.  9,   14,  53  L.   Ed.  887,   29   S.   Ct.  598;   Ex  50   L.    Ed.    303,   26    S.    Ct.    147;    In    re   Lin- 

44 


Vol.  I. 


APPEAL  AXD  ERROR. 


403-407 


F.   Certiorari — 1.  Ix  General. — See  note  41.  • 

III.   Appellate  Jurisdiction. 
A.  Acquisition  and  Extent — 3.  Source  of  Appellate  Power. — See  note  71. 
C.   Jurisdiction    in    Particular    Proceedings — 1.   Ix   Criminal   Cases 

cl.  Excepiions  to  General  Rule — [A)  Habeas  Corpus  Proceedings. — Certificate 
of  Probable  Cause. — Under  the  act  of  March  10,  1908,  c.  76,  35  Stat.  40  tio 
appeal  is  allowable  from  a  final    decision   of   the    court   of   the  United  States  in 


coin,  202  U.  S.  178,  50  L.  Ed.  98-4,  26  S. 
Ct.  602;  Glasgow  v.  Moyer,  225  U.  S. 
420,  56  L.  Ed.  1147,  32  S.  Ct.  753;  Wil- 
liams V.  Walsh,  222  U.  S.  415,  422,  56  L. 
Ed.  253.  32  S.  Ct.  137;  Wise  v.  Henkel, 
220  U.  S.  556,  55  L.  Ed.  581,  31  S.  Ct.  599; 
•Harlan  v.  McGourin,  218  U.  S.  442,  445, 
54  L.  Ed.  1101,  31  S.  Ct.  44.  See  post. 
HABEAS  CORPUS. 

Where  a  court  has  jurisdiction,  mere 
errors  which  have  been  committed  in  the 
course  of  the  proceedings  can  not  be 
corrected  upon  a  writ  of  habeas  corpus, 
which  may  not  in  this  manner  usurp  the 
functions  of  a  writ  of  error.  Kaizo  v. 
Henry,  211  U.  S.  146.  148.  53  L.  Ed.  125. 
29    S.    Ct.    41. 

"The  principle  is  not  the  less  appli- 
cable because  the  law  which  was  the 
foundation  of  the  indictment  and  trial  is 
asserted  to  be  unconstitutional  or  un- 
certain in  the  description  of  the  offense. 
Those  questions,  like  others,  the  court  is 
invested  with  jurisdiction  to  try  if  raised, 
and  its  decision  can  be  reviewed,  like  its 
decisions  upon  other  questions,  by  writ 
of  error.  The  principle  of  the  cases  is 
the  simple  one  that  if  a  court  has  juris- 
diction of  the  case,  the  writ  of  habeas 
corpus  can  not  be  employed  to  retry  the 
issues,  whether  of  law,  constitutional  or 
other,  or  of  fact."  Glasgow  v.  Moyer, 
225  U.  S.  420.  56  L.  Ed.  1147,  32  S.  Ct. 
753. 

Habeas  corpus  will  not  issue  as  a  sub- 
stitute for  a  writ  of  error  in  favor  of  a 
person  in  custody  under  a  conviction  in 
a  federal  circuit  court  having  jurisdiction 
of  the  case,  to  review  its  holding  that 
the  affidavit  of  prejudice  authorized  by 
the  Judicial  Code  of  March  3,  1911  (36 
Stat,  at  L.  1087,  chap.  231.  U.  S.  Comp. 
Stat.  Supp.  1911,  p.  128).  §  21,  could  not 
be  filed  after  the  case  had  been  tried  and 
verdict  rendered,  or  to  test  the  correct- 
ness of  the  court's  rulings  upon  his  de- 
fenses of  law  or  fact,  although  the  lavv' 
which  was  the  foundation  of  the  indict- 
ment and  trial  is  asserted  to  be  uncon- 
stitutional or  uncertain  in  the  description 
of  the  offense.  Glasgow  v.  Moyer,  225 
U.  S.  420,   56  L.  Ed.   1147,  32  S.  Ct.  753. 

To  test  jurisdiction  of  court  over  In- 
dians.— Hal)eas  corpus  will  not  be  issued 
as  a  substitute  for  a  writ  of  error  on  be- 
half of  one  convicted  in  a  federal  circuit 
court  under  an  indictment  charging  the 
murder   of   one    Indian   by   another,   upon 


an  Indian  reservation,  en  the  ground  that 
such  court  was  without  jurisdiction  be- 
cause in  fact  the  accused  was  a  citizen 
of  the  United  States,  and  the  place  of 
the  crime,  by  reason  of  allotment  and 
patent,  had  ceased  to  be  a  part  of  the 
reservation.  Toy  Toy  v.  Hopkins.  2].2  U. 
S.   542.   53    L.   Ed.   644,   29   S.    Ct.   416. 

403-41.  Certiorari  can  not  independently 
be  used  to  supply  the  place  of  a  writ  of 
error  for  the  mere  correction  of  errors 
below,  because  of  the  provision  of  Act 
September  24,  1789.  c.  20,  §  14,  1  Stat, 
81  (U.  S.  Comp.  St.  1901,  p.  580),  sub- 
stantially re-enacted  as  Rev.  St.  U.  S., 
§  716  (U.  S.  Comp.  St.  1901,  p.  580),  giv- 
ing the  federal  supreme  court  power  to 
issue  all  writs  not  especially  provided  for 
by  statute  which  m.ay  be  necessary  for 
the  exercise  of  its  jurisdiction,  and  agree- 
able to  the  principles  and  usages  of  law. 
United  States  v.  Dickinson,  ^213  U.  S. 
92.  53  L.  Ed.  711,  29  S.  Ct.  485.  See  post. 
CERTIORARI. 

407-71.  The  appellate  jurisdiction  in 
the  federal  system  of  procedure  is  purely 
statutory.  Heike  v.  United  States.  217  U. 
S.  423.  428.  54  L.   Ed.  821,  30  S.  Ct.  539. 

In  United  States  v.  Dickinson,  213  U. 
S.  92,  53  L.  Ed.  711,  29  S.  Ct.  485,  Mr. 
Justice  Fuller,  in  a  lengthy  opinion  in 
which  he  rcA-iewed  all  prior  decisions, 
sums  up  the  rule  as  follows:  "The  rule 
remains  that  appeal  and  writ  of  error, 
being  the  proper  forms  of  procedure  pro- 
vided for  the  mere  correction  of  error, 
the  appellate  jurisdiction  of  this  court  for 
that  purpose  is  limited  to  the  cases  in 
which  express  provision  is  made  for  ap- 
peals or  writs  of  error.'" 

Except  in  cases  affecting  ambassadors, 
other  public  ministers  and  consuls  and 
those  in  which  a  state  shall  be  a  party — 
in  which  cases  the  federal  suoreme  court 
may  exercise  original  jurisdiction.  the 
federal  supreme  court  exercises  appellate 
jurisdiction  both  as  to  law  and  fact  with 
such  exceptions  and  with  such  regula- 
tions as  congress  shall  make  in  the  other 
cases  to  which,  by  the  constitution,  the 
judicial  power  of  the  United  States  ex- 
tends. Const.,  art.  Ill,  §  2.  What  such  ex- 
ceptions and  regulations  should  be  it  is 
for  congress  in  its  wisdom  to  establish, 
having,  of  course,  due  regard  for  the 
provision  of  the  constitution.  United 
States  V.  Bitty.  208  U.  S.  393,  52  L.  Ed. 
543.    28    S.    Ct.    396. 


45 


420-431 


APPEAL  AND  ERROR. 


Vol.  I. 


habeas  corpus  proceedings  issued  from  state  court,  unless  the  United  States 
court  from  which  the  final  decision  was  rendered,  or  justices  of  the  suprerne 
court,  shall  be  of  opinion  that  there  exists  probable  cause  for  an  appeal,  in 
which  event,  on  allowing  same,  the  said  court  or  justice  shall  certify  that  there 
is  probable  cause  for  such  allowance.  Where  there  is  no  certificate  of  prob- 
able cause,  the  case  will  be  dismissed  for  want  of  jurisdiction.^^a 

e.  Statutoyv  Provisions. — See  note  38. 

D.  Appellate  Jurisdiction  over  Particular  Courts  and  Tribunals — 
1.  Over  District  Courts — b.  Under  Circuit  Court  of  Appeals  Act — (^)  In 
General. — A  writ  of  error  issues  directly  from  the  supreme  court  to  the  dis- 
trict court  of  the  United  States  under  §  5  of  the  act  of  March  3,  1891,  c.  517, 
26  Stat.  827,  as  amended  by  the  act  of  July  20,  1897,  c.  68,  29  Stat.  492,  and 
can  not  be  maintained  unless  a  case  of  "conviction  of  a  capital  crime,"  or  a 
case  involving  "the  construction  or  application  of  the  constitution  of  the  United 
States,"  or  a  case  in  which  "the  constitutionality  of  any  law  of  the  United  States 
is  drawn  in  question. "^^^  Assertions  of  errors  of  construction  of  federal  statutes 
furnish  no  basis  for  jurisdiction  on  constitutional  grounds  under  Act  March  3,  1891, 
c.  517,  §  5,  26  Stat.  827,  as  amended  by  Act  Jan.  20,  1897,  c.  68,  29  Stat.  492 
(U.  S.  Comp.  St.  1901,  p.  549),  of  a  writ  of  error  from  the  federal  supreme 
court  to  a  district  court. '^^'' 

(I)  In  Cases  in  Which  the  Jurisdiction  of  the  Court  Is  in  Issue. — See  note  96. 


420-26a.  Act  of  March  10,  1908. — Bilik 
V.  Strassheini,  212  U.  S.  551,  53  L.  Ed. 
649,  29  S.  Ct.  684;  Ex  parte  Patrick,  212 
U.   S.   555,   53   L.    Ed.   650,   29   L.    Ed.   686. 

422-38.  By  circuit  court  of  appeals  act. 
— For  many  years  appellate  jurisdiction 
did  not  exist  in  criminal  cases  in  the  fed- 
eral system.  It  has  been  granted  by 
statute  in  certain  cases;  and  criminal  cases 
in  which  are  involved  a  deprivation  of 
constitutional  rights,  may  be  brought  to 
the  supreme  court  by  writ  of  error  under 
§  5  of  the  court  of  appeals  act.  Heike  t'. 
United  States,  217  U.  S.  423,  428,  54  L. 
Ed.  821,  30  S.  Ct.  539. 

At  the  time  when  the  circuit  court  of 
appeals  act  was  passed  the  only  existing 
method  by  which  a  decision  of  the  su- 
preme court  could  be  obtained  on  a  ques- 
tion of  law  arising  in  a  criminal  case  not 
capital  was  upon  certificate  of  difiference 
of  opinion  by  the  judges  of  the  circuit 
court,  under  §§  651  and  697  of  the  Rev. 
Stat.  In  capital  cases,  by  the  act  of 
February  6,  1889  (25  Stat,  at  L.  656,  chap. 
113,  §  6,  U.  S.  Comp.  Stat.  1901.  p.  569), 
the  defendant  was  gi^-en  the  right  to  ob- 
tain a  review  in  federal  supreme  court 
by  writ  of  error.  The  act  of  1891  super- 
seded the  existing  statutory  provisions  as 
to  a  certificate  of  difference  of  opinion. 
United  States  z\  Rider,  163  U.  S.  132,  41 
L.  Ed.  101,  16  S.  Ct.  983;  The  Paquete 
Habana,  175  U.  S.  677,  44  L.  Ed.  320,  20 
S.  Ct.  290;  United  States  z\  Dickinson, 
213  U.  S.  92.  53  L.  Ed.  711.  717,  29  S. 
Ct.   485. 

430-95a.  When  writ  of  error  issues  di- 
rectly.—Rakes  z'.  United  States.  212  U. 
S.  55,  53  L.  Ed.  401,  29   S.   Ct.  244. 

430-95b.     Assertions    of    errors    of    con- 


struction.— Rakes  t'.  United  States,  212  U. 
S.    55.    53    L.    Ed.    401,    29    S.    Ct.   244. 
431-96.    Where   jurisdiction  is   in  issue. 

— The  jurisdiction  of  the  federal  supreme 
court  of  a  direct  appeal  from  a  decree 
of  a  federal  district  court  sitting  as  a 
court  of  admiralty,  which  dismissed  a 
libel  for  contribution  in  favor  of  a  joint 
wrongdoer  who  had  paid  a  judgment  re- 
covered against  him  in  a  suit  at  common 
law,  founded  on  the  wrong,  to  which  the 
other  wrongdoer  was  not  made  a  party, 
can  not  be  defeated  on  the  theory  that 
the  dismissal,  although  expressed  to  be 
for  want  of  jurisdiction,  is  really  upon 
the  merits,  because  payment  of  a  judg- 
ment at  common  law  is  not  a  ground  for 
contribution  from  a  wrongdoer  not  a 
party  to  the  suit.  The  Ira  M.  Hedges,  218 
U.  S.  264,  54  L.  Ed.  1039,  31  S.  Ct.  17,  re- 
versing decree  The  Ira  M.  Hedges,  163 
Fed.  587. 

"The  first  question  is  whether  this 
court  has  jurisdiction  of  the  appeal.  It 
is  said  that  the  dismissal  of  the  libel,  al- 
though expressed  to  be  for  want  of  ju- 
risdiction, really  is  on  the  merits.  *  *  * 
There  sometimes  is  difficulty  in  distin- 
guishing between  matters  going  to  the 
jurisdiction  and  those  determining  the 
merits.  *  *  *  g^t  perhaps  it  may  be 
said  that  the  two  considerations  coalesce 
here.  The  admiralty  has  a  limited  juris- 
diction. If  there  are  no  merits  in  the 
claim  it  is  of  a  kind  that  the  admiralty  not 
only  ought  not  to  enforce  but  has  no 
power  to  enforce.  At  all  events,  the  form 
of  the  decree  must  be  taken  to  express  the 
meaning  of  the  judge.  If  the  decree  v/as 
founded,  as  it  purports  to  be.  on  a  denial 
of  jurisdiction  in  the  court,  this  court  has 


46 


\'ol.  I.  APPEAL  AXD  ERROR.  431-434 

(3)  In  Cases  of  Conviction  of  Infamous  Crimes. — A  conviction  in  a  federal 
district  court  of  murder  in  the  second  degree,  punishable  only  by  imprisonment, 
is  not  reviewable  in  the  supreme  court  under  Act  March  3,  1891,  c.  517,  §  5, 
26  Stat.  827,  as  amended  by  Act  Jan.  20,  1897,  c.  68,  29  Stat.  492  (U.  S.  Comp. 
St.  1901,  p.  549),  as  a  case  of  "conviction  of  capital  crime,"  although  accused 
could  have  been  convicted  of  a  capital  ofifense.^"'' 

(4)  In  Cases  Involving  the  Construction  or  Application  of  the  Federal  Con- 
stitution.— The  question  of  the  accused's  constitutional  right  to  a  speedy  trial  is 
not  so  involved  as  to  give  the  federal  supreme  court  jurisdiction  of  a  v^^rit  of 
error  to  a  district  court,  where  the  latter  court  has  permitted  the  entry  of  a 
nolle  prosequi. 9"^ 

(5)  In  Cases  Involving  the  Constitutionality  of  Any  Law  of  the  United  States 
or  the  Validity  or  Construction  of  Treaties. — Constitutionality  of  Enabling 
Acts.— An  order  of  a  federal  district  court  denying  relief  by  habeas  corpus  to 
a  person  convicted  in  a  United  States  court  for  the  Indian  Territory  is  not 
reviewable  in  the  federal  supreme  court  as  involving  the  construction  of  the 
federal  constitution,  where  the  allegation  in  the  petition  that  the  accused  was 
deprived  of  his  liberty  without  due  process  of  law  was  based  entirely  upon  the 
supposed  want  of  jurisdiction  in  the  court  where  the  conviction  was  had  over  an 
offense  committed  during  the  interim  between  the  passage  of  the  Oklahoma  en- 
abling act  (Act  June  16,  1906,  c.  ZZii,  34  Stat.  267),  and  the  admission  of  the 
state  into  the  Union,  which  is  a  question  involving  the  construction,  and  not 
the  constitutionality,   of   the   enabling  act.^^^ 

Frivolous  Appeals. — The  constitutionality  of  the  provision  of  Rev.  St.  U.  S. 
§  5509  (U.  S.  Comp.  St.  1901,  §  3712),  for  such  punishment  of  persons  com- 
mitting any  other  felony  or  misdemeanor,  when  conspiring  contrary'  to  the  pre- 
ceding section,  as  is  attached  to  such  felony  or  misdemeanor  by  the  laws  of  the 
state  in  which  the  offense  is  committed  is  too  well  settled  to  permit  the  ques- 
tion as  to  such  constitutionality  to  serve  as  the  basis  of  a  writ  of  error  from  the 
federal  supreme  court  to  a  district  court. ^^'^ 

2.  Over  Circuit  Courts — b.  By  Direct  Appeal — (1)  Under  Circuit  Court 
of  Appeals  Act — bb.  In  What  Cases  Allowable — aaa.  In  Cases  in  Which  the 
Jurisdiction  of  the  Court  Is  in  Issue — aaaa.    In  General. — See  note  11. 

jurisdiction   of   the   appeal."'     The    Ira    ^I.  431-98a.     Constitutionality     of     enabling 

Hedges,  218  U.  S.  261,  270,  54  L.  Ed.  1039.  act.— Childers    z:    McClaughry,    216    U.    S. 

31    S.    Ct.   17.  139,   54   L.   Ed.   420,   30   S.   Ct.   370. 

Dismissal  of  information  under  revenue  431-98b.     Frivolous    appeals. — Rakes     v. 

laws. — A    judgment    of    a    federal    district  United  States.  212  U.  S.  55,  53  L.  Ed.  401. 

court,    dismissing,    for    want    of    a    lawful  29   S.   Ct.  244. 

seizure  in  the   district,  an  information  for  434-11.    Where   jurisdiction   is   in   issue, 

the  forfeiture  of  certain  jewels  ^lleged  to  — Repeated    decisions     cf     the     supreme 

have    been    sm.uggled     into      the      United  court  hold  that  the  jurisdiction  of  a  cir- 

States,    does    not    present    a    question    re-  cuit    or    district    court    is    in    issiie    in    the 

specting  the   jurisdiction   of  that   court   as  sense    intended    whenever    the    power    of 

a  federal  court,  which  is  essential  to  sus-  the    court    to    hear     and      determine      the 

tain  the  direct  writ  of  error  from  the  su-  cause,   as   defined   or  limited   by  the   con- 

preme      court      of      the      United       States  stitution  or  statutes  of  the  United  States, 

authorized   by   Act   March   3.   1891,   c.   517,  is  in   controversy.     United   States  v.  Con- 

§  5.  26  Stat.  827   (U.  S.  Comp.  St.  1901,  p.  gress    Constr.    Co..    222    U.    S.    199,    56    L. 

549),   when    the   jurisdiction    of   the   lower  Ed.  163.  32  S.  Ct.  44. 

court  is   in   issue.     United    States   v.   Lar-  Jurisdiction    of    admiralty     court. — The 

kin,  208  U.  S.  333.  52  L.  Ed.  517,  28  S.  Ct.  jurisdiction    of   a   federal   district   court   of 

417.  the   United    States  was   in   issue   so   as   to 

431-97a.  Conviction  of  murder  in  second  sustain  a  direct  appeal  to  the  federal  su- 

degree. — Rakes    :■.    United    States.    212    U.  preme    court,    where    the    exceptions   to    a 

S.  ."..■,.  53  L.  Ed.  401,  20   S.  Ct.  244.  libel    and    intervening     petition      claiming 

431-97b.    Where  nolle  prosequi  entered.  salvage  for  services  rendered  to  a  vessel 

— Lewis   f.   United    States.   216   U.    S.    611,  on   fire   in   a   dry   dock   challenged   the  ju- 

54  L.   Ed.  637,   30   S.  Ct.  438.  risdiction    because,    from    the    situation    of 

47 


434 


APPEAL  AND  ERROR. 


Vol.  I. 


bbbb.   Jurisdiction  of  Court  as  a  Federal  Court  Must  Be  Involved. — In  Gen- 
eral.— See  note  13. 


the  vessel,  the  place  where  the  services 
were  rendered,  and  their  nature  and  char- 
acter, they  afforded  no  basis  for  the  ju- 
risdiction of  the  court  as  a  court  of 
admiralty  of  the  United  States,  and  this 
was  the  conception  upon  which  that  court 
acted  in  dismissing  such  libel  and  inter- 
vening petition.  The  Steamship  Jeffer- 
son, 215  U.  S.  130,  54  L.  Ed.  125,  30  S. 
Ct.    54. 

Action  for  damages  for  infringement  of 
copyright. — A  judgment  of  a  federal  cir- 
cuit court  in  favor  of  plaintiff  in  an  ac- 
tion to  recover  damages  for  the  infringe- 
ment of  a  copyrighted  map,  in  which  a 
prior  judgment  sustaining  a  demurrer  to 
and  dismissing  the  declaration  on  the 
ground  that  the  copyright  law  gave  no 
such  action  was  reversed  by  the  circuit 
court  of  appeals,  to  which  the  case  was 
carried  by  the  plaintiff,  may  be  reviewed 
by  the  federal  supreme  court  on  a  direct 
writ  of  error  sued  out  by  the  defendant 
below  under  act  March  3,  1891,  c.  517,  §  5, 
26  Stat.  827  (U.  S.  Comp.  St.  1901,  p. 
549),  as  presenting  the  question  of  the 
jurisdiction  of  the  circuit  court.  Judg- 
ment. Walker  v.  Globe  Newspaper  Co. 
(1905),  140  F.  305,  72  C.  C.  A.  77,  2  L- 
R.  A.  (N.  S.)  913,  reversed.  Globe  News- 
naper  Co.  v.  Walker,  210  U.  S.  356,  52  L. 
Ed.    T096,    28    S.    Ct.    726. 

Validity  of  service  on  foreign  corpora- 
tion.— A  decree  of  a  federal  circuit  court 
sustaining  a  plea  to  the  jurisdiction  may 
be  brought  to  the  federal  supreme  court, 
under  the  act  of  March  3,  1891  (26  Stat. 
at  L.  827.  chap.  517,  U.  S.  Comp.  St.  1901, 
p.  549),  §  5,  by  direct  appeal,  where  the 
question  presented  involves  issues  of  fact 
as  to  whether  the  corporate  defendant  was 
doing  business  in  the  state,  and  whether 
the  person  attempted  to  be  served  as 
agent  was  such  at  that  time.  "It  is  well 
settled  that  a  question  of  this  character 
may  be  brought  to  this  court  by  direct 
appeal  under  the  circuit  court  of  appeals 
act.  Remington  v.  Central  Pac.  R.  Co., 
198  U.  S.  95,  49  L.  Ed.  959,  25  S.  Ct.  577; 
Commercial  Mut.  Acci.  Co.  v.  Davis,  213 
U.  S.  245,  256,  5,3  L.  Ed.  782,  29  S.  Ct.  445; 
Mechanical  Appliance  Co.  v.  Castleman. 
215  U.  S.  437,  54  L-  Ed.  272,  30  S.  Ct.  125." 
Herndon-Carter  Co.  v.  Norris,  etc.,  Co., 
224  U.   S.  496,  56  L.  Ed.  857,  32   S.  Ct.  550. 

Question  of  right  to  remove  from  state 
court. — The  federal  supreme  court  can 
not  review,  as  presenting  a  question  of 
jurisdiction,  a  decree  of  a  federal  circuit 
court  dismissing  a  bill  in  aid  of  an  attempt 
to  remove  condemnation  proceedings 
from  a  state  court,  which  decree  was 
necessitated  by  the  mandate  of  a  circuit 
court  of_  appeals,  which  court,  being  of 
the    opinion    that    the    condemnation    pro- 


ceedings did  not  amount  to  a  "suit"  within 
the  meaning  of  the  removal  statutes,  had 
reversed  an  order  of  the  circuit  court, 
granting  a  temporary  injunction  restrain- 
ing the  further  prosecution  of  the  pro- 
ceedings, and  had  remanded  the  cause 
with  directions  to  proceed  in  accordance 
with  its  opinion,  since  there  was  an  op- 
portunity afforded  to  obtain  a  review  of 
the  jurisdictional  question,  either  upon  a 
certificate  of  the  circuit  court  of  appeals, 
or  on  a  writ  of  certiorari  to  that  court. 
Metropolitan  Water  Co.  v.  Kaw  Valley, 
etc..  District,  223  U.  S.  519,  56  L.  Ed.  533, 
32  S.  Ct.  246,  following  Brown  v.  Alton 
Water  Co.,  222  U.  S.  325,  56  L.  Ed.  221,  32 
S.  Ct.  156. 

434-13.  Jurisdiction  as  a  federal  court. — 
By  the  first  clause  of  §  5  of  the  act  of 
March  3,  1891,  c.  517,  26  Stat.  826,  827,  it 
is  provided  that  appeals  or  writs  of  error 
may  be  taken  from  the  district  courts  or 
from  the  existing  circuit  courts  direct  to 
this  court  "in  any  case  in  which  the  juris- 
diction of  the  court  is  in  issue;  in  such 
cases  the  question  of  jurisdiction  alone 
shall  be  certified  to  the  supreme  court 
from  the  court  below  for  decision."  The 
scope  and  meaning  of  this  clause  has  not 
infrequently  been  the  subject  of  consider- 
ation, and  the  prior  authorities  are  re- 
viewed in  Board  v.  Hammond  Elevator 
Co.,  198  U.  S.  424,  49  L.  Ed.  1111,  25  S- 
Ct.  740,  where  the  court  said:  "It  has 
been  definitely  settled  that  it  [the  section] 
must  be  limited  to  causes  where  the  ju- 
risdiction of  the  federal  court,  as  a  federal 
court,  is  put  in  issue,  and  that  questions 
of  jurisdiction  applicable  to  the  state 
courts,  as  well  as  to  the  federal  courts, 
are  not  within  its  scope."  Bien  v.  Robin- 
son, 208  U.  S.  423,  426,  52  L.  Ed.  556,  28 
S.  Ct.  379;  Abrams  v.  White,  212  U.  S.  558, 
53  L.  Ed.  651,  29  S.  Ct.  686. 

"The  court  has  had  frequent  occa- 
sion to  determine  what  is  meant  in 
the  statute  providing  for  review  of  cases 
in  which  the  jurisdiction  of  the  court  is 
in  issue,  and  it  has  been  held  that  the 
statute  means  to  give  a  review,  not  of  the 
jurisdiction  of  the  court  upon  general 
grounds  of  law  or  procedure,  but  of  the 
jurisdiction  of  the  court  as  a  federal 
court."  Louisville  Trust  Co.  v.  Knott,  191 
U.  S.  225,  48  L.  Ed.  159,  24  S.  Ct.  119; 
Bache  v.  Hunt,  193  U.  S.  523,  48  L.  Ed. 
774,  24  S.  Ct.  547;  Fore  River,  etc.,  Co. 
V.  Hagg,  219  U.  S.  175,  178,  55  L.  Ed.  163, 
31  S.  Ct.  185. 

For  example,  the  jurisdiction  of  the 
court  below  as  a  federal  court  is  not  in- 
volved if  it  is  plain  from  the  record  that 
the  declaration  did  not  state  a  cause  of 
action  because  of  the  failure  to  allege  the 
existence   of  a   supposed   condition   prece- 


48 


Vol.  I. 


APPEAL  AND  ERROR. 


440 


eeee.    What  Are  Questions  of  Jurisdiction- 
General  Rule. — See  notes  27.  32. 


-bbbbb.    Specific  Applications  of 


dent  to  recovery  in  a  court  of  law.  Dar- 
nell z:  Illinois  Cent.  R.  Co.,  225  U.  S.  243, 
56  L.  Ed.  1072,  32  S.  Ct.  760. 

A  writ  of  error  from  the  federal  su- 
preme court  to  a  circuit  court,  authorized 
by  Act  March  3,  1891,  c.  517,  §  5,  30  Stat. 
827  (U.  S.  Comp.  St.  1901,  p.  549),  when 
the  jurisdiction  of  the  lower  court  is  in 
issue,  can  not  be  maintained  because  of  a 
ciuestion  as  to  the  jurisdiction  of  that 
court  in  respect  to  its  general  authority 
as  a  judicial  tribunal,  or  its  power  as  a 
court  of  equity.  Bien  v.  Robinson,  208  U. 
S.  423,   52    L.    Ed.   556,   28    S.    Ct.   379. 

An  appeal  from  the  United  States  cir- 
cuit court  to  review  a  decree  sustaining  a 
demurrer  to  a  bill  which  seeks  the  dissolu- 
tion of  a  corporation  will  be  dismissed  for 
want  of  jurisdiction.  Hirsh  v.  Taylor,  225 
U.  S.  698,  56  L.  Ed.  1263,  32  S.  Ct.  841, 
citing  Fore  River,  etc.,  Co.  v.  Hagg,  219 
U.  S.  175,  55  L.  Ed.  163,  31  S.  Ct.  185; 
Louisville  Trust  Co.  v.  Knott,  191  U.  S. 
225,  48  L.  Ed.  159,  24  S.  Ct.  119;  Bache  v. 
Hunt.  193  U.  S.  523,  48  L.  Ed.  774.  24  S. 
Ct.  547. 

The  question  whether  a  federal  circuit 
court,  in  a  suit  in  which  the  requisite  di- 
versity of  citizenship  exists  may  enforce 
a  cause  of  action  based  on  a  state  statute 
alleged  to  be  penal  in  its  nature  does  not 
involve  the  jurisdiction  of  the  court  as  a 
federal  court,  which  alone  can  support  a 
direct  writ  of  error  from  the  federal  su- 
preme court,  under  Act  March  3.  1891.  c. 
517,  §  5,  26  Stat.  827  (U.  S.  Comp.  St.  1901. 
p.  549),  as  a  case  in  which  the  jurisdiction 
of  the  circuit  court  was  in  issue.  Fore 
River,  etc.,  Co.  v.  Hagg,  219  U.  S.  175,  55 
L.  Ed.'  163.  31  S.  Ct.  185. 

Jurisdiction  over  absent  defendants. — 
The  dismissal  of  a  bill  filed  against  non- 
resident aliens  in  a  federal  circuit  court 
because  complainant  offered  no  proof  to 
establish  the  fact  that  the  property  sought 
to  be  affected  was  within  the  district,  as 
contemplated  by  the  act  of  March  3,  1875 
(18  Stat,  at  L.  472.  chap.  137,  U.  S.  Comp. 
Stat.  1901.  p.  513).  §  8.  which  authorized 
the  exertion  of  jurisdiction  as  to  the  prop- 
erty of  absent  defendants,  the  bill's  aver- 
ment in  this  regard  having  been  traversed 
by  plea,  involves  a  question  as  to  the 
power  of  the  court  as  a  federal  court, 
reviewable  by  direct  appeal  to  the  su-^. 
preme  court.  Chase  7:  Wetzlar.  225  U.  S.' 
79,  56  L.   Ed.  990,  32   S.   Ct.  659. 

Sufficiency  of  averments  in  declarations. 
— The  dismissal  by  a  federal  circuit  court 
of  an  action  brought  by  a  domestic  cor- 
poration to  recover  from  nonresident 
railway  companies  the  excess  over  a  rea- 
sonable freight  rate  exacted  by  them 
because  the  declaration  contained  no 
averment    that    the    Interstate    Commerce 


Commission  had  sustained  plaintiff's  right 
to  reparation,  does  not  present  a  question 
of  the  jurisdiction  of  that  court  as  a  fed- 
eral court,  so  as  to  sustain  a  direct  appeal 
to  the  supreme  court,  since  precisely  the 
same  question  would  have  arisen  for  de- 
cision had  the  suit  been  pending  in  a  state 
court  of  general  authority,  having  juris- 
diction over  the  defendants.  Darnell  v. 
Illinois  Cent.  R.  Co..  225  U.  S.  243.  56  L. 
Ed.  1072,  32  S.  Ct.  760,  citing  Bache  v. 
Hunt,  193  U.  S.  523.  48  L.  Ed.  774,  24  S. 
Ct.  547;  Fore  River,  etc.,  Co.  v.  Hagg,  219 
U.  S.  175,  55  L.  Ed.  163,  31  S.  Ct.  185; 
United  States  z'.  Congress  Constr.  Co..  222 
U.  S.  199.  56  L.  Ed.  163,  32  S.  Ct.  44. 

Removal  of  causes. — The  contention 
that  a  federal  circuit  court  has  no  juris- 
diction of  a  suit  founded  on  a  decree  of 
that  court  because  the  state  court  from 
which  the  suit  was  removed  was  without 
jurisdiction  does  not  present  a  question  of 
the  jurisdiction  of  the  circuit  court  as  a 
federal  court,  so  as  to  sustain  a  direct 
appeal  to  the  supreme  court,  on  the 
ground  that  the  jurisdiction  of  the  circuit 
court  was  in  issue.  Kansas,  etc.,  R.  Co.  z: 
Zimmerman.  210  U.  S.  336.  52  L.  Ed.  1084, 
28  S.  Ct._  7.30. 

Jurisdiction  under  patent  right  or  copy- 
right laws. — This  case  is  here  upon  writ 
of  error  to  the  circuit  court  of  the  United 
States  for  the  district  of  ^Massachusetts, 
upon  a  question  of  its  jurisdiction  to  en- 
tertain a  suit  to  recover  damages  for  an 
alleged  infringement  of  the  copyright  of 
a  map.  The  Revised  Statutes  of  the 
United  States.  §  711,  par.  5,  give  jurisdic- 
tion to  the  courts  of  the  United  States  in 
cases  arising  ynder  the  patent  right  or 
copyright  laws  of  the  United  States,  ex- 
clusive of  the  courts  of  the  several  states. 
Thecase  is  one,  therefore,  which  involves 
the  jurisdiction  of  a  federal  court  as  such. 
Globe  Newspaper  Co.  r.  Walker,  210  U. 
S.  356.  360.  52  L.  Ed.  1096.  28  S.  Ct.  726. 

Decree  of  dismissal  for  want  of  jurisdic- 
tion— It  is  settled  that,  under  the  act  of 
1891.  in  order  to  entitle  to  a  direct  appeal 
from  the  decree  of  a  district  or  circuit 
court  dismissing  a  cause  for  want  of  juris- 
diction, the  decree  which  is  sought  to  be 
reviewed  must  have  involved  the  jurisdic- 
tion of  the  court  below  as  a  federal  court. 
The  Steamship  Jefferson,  215  U.  S.  130, 
137.  54  L.   Ed.   125.  30  S.  Ct.   54. 

Whether  the  bill  presents  a  case  for 
equitable  relief  or  not  does  not  involve  a 
ciuestion  of  the  jurisdiction  of  a  federal 
circuit  court  as  a  federal  court,  so  as  to 
sustain  a  direct  appeal  to  the  .supreme 
court.  Scullv  V.  Bird.  209  U.  S.  481,  52  L. 
Ed.  899,  28  S.  Ct.  597. 

440-27.  Sufficiency  of  service  of  process. 
— The  contention  that  there  was  no  valid 


12  U  S   Enc— 4 


49 


441-442 


APPEAL  AND  BRROR. 


Vol.  I. 


Construction  of  Statute. — The  ruling  of  the  district  court  in  a  proceeding 
under  Food  and  Drugs  Act,  §  10,  imposing  costs  on  the  claimant,  where  the 
court  has  jurisdiction  of  the  person  as  well  as  the  res,  may  be  considered  as  a 
question  of  construction  of  the  statute,  and  not  one  of  jurisdiction,  reviewable 
by  the  supreme  court.^^^ 

Venue  of  Suit. — The  objection  that  an  action  brought  by  the  United  States 
against  the  principal  and  sureties  on  the  bond  of  a  public  contractor,  given  con- 
formably to  Act  Feb.  24,  1905,  c.  778,  33  Stat.  811  (U.  S.  Comp.  St.  Supp. 
1909,  p.  948),  amending  Act  Aug.  13,  1894,  c.  280,  28  Stat.  278  (U.  S.  Comp. 
St.  1901,  p.  2523),  for  his  failure  to  pay  certain  designated  subcontractors  for 
labor  and  materials  used  in  construction,  should,  under  such  statutes,  when 
rightly  construed,  have  been  brought  in  the  federal  circuit  court  for  the  dis- 
trict wherein  the  contract  was  to  be  performed,  instead  of  in  the  court  for  the 
district  where  the  defendants  reside,  raises  a  question  of  the  jurisdiction  of  the 
circuit  court  which  will  sustain  a  direct  writ  of  error  from  the  federal  supreme 
court.-^'''' 

ffff.    Necessity  for  Finality  of  Judgment. — See  note  36. 


seivice  of  process  upon  a  foreign  corpo- 
rate defendant  in  a  suit  removed  by  it 
from  a  state  to  a  federal  court,  because 
the  corporation  was  not  doing  business  in 
the  state,  and  the  person  attempted  to  be 
served  was  not  its  agent  at  that  time,  in- 
volves the  jurisdiction  of  the  latter  court 
as  a  federal  court,  so  as  to  sustain  a  direct 
review  "of  the  judgment  of  that  court, 
under  Act  March  3,  1891,  c.  517,  §  5,  26 
Stat.  827  (U.  S.  Comp.  St.  1901,  p.  549\ 
by  writ  of  error  from  the  federal  supreme 
court.  Mechanical  Appliance  Co.  v.  Castle- 
man,  215  U.  S.  437,  54  L.  Ed.  272,  30  S.  Ct. 
125. 

441-32.  Judgment  of  dismissal  for  want 
of  jurisdiction, — Where  the  judgment  of 
the  circuit  court  that  the  declaration  was 
"insufficient  in  law"  was  reversed  by  the 
circuit  court  of  appeals  and  remanded  for 
further  proceedings  according  to  law,  and 
at  the  trial  there  was  a  verdict  for  plain- 
tifif  but  during  the  hearing  defendant 
moved  that  the  action  be  dismissed  be- 
cause the  court  was  without  jurisdiction, 
it  was  held  that  from  this  decision  an  ap- 
peal could  be  taken,  under  §  5  of  the  act 
of  1891.  Globe  Newspaper  Co.  v.  Walker, 
210  U.  S.  356,  52  L.  Ed.  1096,  28  S.  Ct.  726. 
But  the  supreme  court  refused  to  review 
as  presenting  a  question  of  jurisdiction  a 
decree  of  the  circuit  court  dismissing  a 
bill  in  aid  of  an  attempt  to  remove  con- 
demnation proceedings  from  the  state 
court,  which  decree  was  necessitated  by 
the_  mandate  of  a  circuit  court  of  appeals, 
which  court  being  of  the  opinion  that  the 
condemnation  proceedings  did  not  amount 
to  a  "suit"  within  the  meaning  of  the  re- 
moval_  statutes,  had  reversed  an  order  of 
the  circuit  court  granting  a  temporary 
injunction  restraining  the  further  prose- 
cution of  the  proceedings  and  had  re- 
manded the  cause  with  directions  to  pro- 
ceed in  accordance  with  its  opinion,  since 
there    was     an     opportunity    afforded     to 


obtain  a  review  of  the  jurisdiction  of  the 
question,  either  upon  a  certificate  of  the 
circuit  court  of  appeals  or  a  writ  of  cer- 
tiorari to  that  court.  Metropolitan  Water 
Co.  V.  Kaw  Valley,  etc.,  District,  223  U. 
S.  519.  56  L.  Ed.  533,  32  S.  Ct.  246. 

A  direct  appeal  will  not  lie  to  the  fed- 
eral supreme  court  under  Act  March  3, 
1891,  c.  517,  26  Stat.  826  (U.  S.  Comp.  St. 
1901,  p.  488),  to  review,  as  presenting  a 
question  of  jurisdiction,  a  decree  of  a  cir- 
cuit court  entered  pursuant  to  the  man- 
date of  a  circuit  court  of  appeals,  which, 
being  of  the  opinion  that  the  bill  was 
within  the  ancillary  jurisdiction  of  the 
circuit  court,  had  reversed  a  decree  of  that 
court  dismissing  such  bill  for  want  of  ju- 
risdiction, since  there  was  an  opportu- 
nity aflforded  by  the  statute  to  obtain  a  re- 
view of  the  jurisdictional  question  in  the 
supreme  court,  either  upon  a  certificate  of 
the  circuit  court  of  appeals,  or  on  writ  of 
certiorari  to  that  court.  Brown  v.  Alton 
Water  Co.,  222  U.  S.  325,  56  L.  Ed.  221, 
32  S.  Ct.  156. 

The  jurisdiction  of  a  federal  circuit 
court  as  a  federal  court  is  so  involved  as 
to  sustain  a  direct  writ  of  error  from  the 
federal  supreme  court  under  Act  March 
3,  1891.  c.  517.  §  5,  26  Stat.  827  (U.  S. 
Comp.  St.  1901,  p.  549),  in  a  judgment  dis- 
missing the  suit  on  the  ground  of  the  in- 
validity of  the  attachment  and  garnish- 
ment of  the  property  of  the  nonresident 
defendant,  and  upon  the  lack  of  a  general 
appearance  by  such  defendant.  Davis  v. 
Cleveland,  etc.,  R.  Co.,  217  U.  S.  157,  54  L. 
Ed.  708,  30  S.  Ct.  463. 

442-35a.  Ruling  under  Food  and  Drugs 
Act.— Hipolite  Egg  Co.  v.  United  States, 
220  U.  S.  45.  55  L.  Ed.  364,  31  S.  Ct.  364. 

442-35b.  United  States  v.  Congress 
Constr.  Co.,  223  U.  S.  199,  56  L.  Ed.  163, 
32  S.  Ct.  44. 

442-36.  Necessity  for  finality  of  judg- 
ment.— "It  may  be  regarded  as  the  settled 


50 


Vol.  I 


APPEAL  AND  ERROR. 


443-450 


hhhh.    The  Certificate — bbbbb.   A'ecessiiy  for. — See  note  42. 

ddddd.   Form  and  Requisites. — See  note  49. 

eeeee.  Presumptions  on  Appeal  with  Respect  to  Certificate. — Upon  a  direct 
appeal  from  the  circuit  court  to  the  federal  supreme  court,  the  grounds  on 
which  the  action  was  dismissed  in  the  lower  court  will  be  presumed  to  be  those 
recited  in  the  certificate  when  there  is  an  inconsistency  between  the  court's 
opinion  and  the  order  of  dismissal.^^^ 

jjjj.  Double  Appeals. — See  note  64.  If  the  question  of  the  jurisdiction  of 
the  circuit  court  as  a  federal  court  is  presented,  a  dismissal  of  a  writ  of  error 
from  the  circuit  court  of  appeals  to  the  circuit  court  is  no  bar  to  a  direct  writ 
of  error  to  the  circuit  court.^^* 


practice  of  this  court  that  a  case  can  not 
be  brought  here  by  piecemeal,  and  is  only 
to  be  reviewed  here  after  final  judgment 
by  direct  appeal  or  writ  of  error  in  a  lim- 
ited class  of  cases  under  §  5  of  the  Court 
of  Appeals  Act."  Heike  v.  United  States, 
217  U.  S.  423,  429,  54  L.  Ed.  821,  30  S.  Ct. 
539,  following  McLish  z:  Roff,  141  U.  S. 
661,  35  L.  Ed.  893. 

443-42.  Necessity  for. — A  decree  show- 
ing dismissal  for  want  of  jurisdiction  only  ^ 
takes  the  place  of  the  certificate  required 
by  the  act  of  March  3,  1891,  §  5,  govern- 
ing a  direct  review  in  the  federal  supreme 
court  of  decrees  .  of  the  circuit  court. 
Herndon-Carter  Co.  v.  Norris,  etc.,  Co., 
224  U.  S.  496,  56  L.  Ed.  857,  32  S.  Ct.  550. 

Ordinarily,  a  formal  certificate  is  es- 
sential, and  it  must  be  made  at  the  same 
term  as  that  at  which  the  judgment  is 
rendered.  But  where  the  record  shows 
that  the  only  matter  tried  and  decided  in 
the  circuit  court  was  one  of  jurisdiction, 
and  the  petition  upon  which  the  writ  of 
error  was  allowed  asked  only  for  a  re- 
view of  the  judgment  that  the  court  had 
no  jurisdiction  of  the  action,  the  question 
of  jurisdiction  alone  is  suf^ciently  certi- 
fied. United  States  v.  Larkin.  208  U.  S. 
333,  338,  52  L.  Ed.  517.  28  S.  Ct.  417;  Da- 
vis V.  Cleveland,  etc.,  R.  Co.,  217  U.  S.  157, 
54  L.   Ed.  70S,  30   S.   Ct.   463. 

The  absence  of  a  certificate  of  the  ques- 
tion of  jurisdiction  is  not  fatal  to  the  right 
to  maintain  a  direct  appeal  from  a  fed- 
eral district  court  to  the  supreme  court, 
where,  upon  the  face  of  the  record,  aside 
from  the  recitals  in  the  order  made  on  the 
allowance  of  the  appeal,  it  is  apparent 
that  the  only  question  which  was  decided 
below  was  one  of  jurisdiction,  and  the  de- 
cree appealed  from  on  its  face  shows  that 
the  cause  was  dismissed  for  want  of  ju- 
risdiction. Decree,  The  Jefferson  (D.  C. 
1908)  158  F.  358.  reversed.  The  Steam- 
ship JefTerson,  215  U.  S.  130,  54  L.  Ed. 
125,  30  S.  Ct.  54. 

The  lack  of  a  certificate  of  jurisdiction 
is  not  fatal  to  an  appeal  to  the  federal  su- 
preme court  from  a  decree  of  a  circuit 
court  which  necessarily  decided  constitu- 
tional questions  expressly  raised  in  the 
bill.     Railroad   Comm.   v.    Louisville,   etc, 


R.  Co.,  225  U.  S.  272,  56  L.  Ed.  1087,  32  S. 
Ct.  756. 

The  issue  of  the  jurisdiction  of  a  fed- 
eral circuit  court,  whether  certified  or  not. 
is  open  on  an  appeal  to  the  federal  supreme 
court  from  a  decree  which  necessarily  de- 
cided constitutional  questions  raised  in 
the  bill.  Railroad  Comm.  v.  Louisville, 
etc.,  R.  Co..  225  U.  S.  272,  56  L.  Ed.  1087, 
32  S.  Ct.  756,  citing  Chappell  v.  United 
States,  160  U.  S.  499,  40  L.  Ed.  510,  16  S. 
Ct.  397. 

446-49.  Sufficiency  of  certificate. — 
Formal  defects  in  the  certificate  as  to  ju- 
risdiction filed  by  a  federal  circuit  court 
under  Act  March  3,  1891,  c.  517,  §  5,  26 
Stat.  827  (U.  S.  Com.  St.  1901,  p.  549). 
for  the  purpose  of  sustaining  a  writ  of  er- 
ror from  the  federal  supreme  court,  are 
not  material,  where  the  record  clearly 
shows  that  the  only  matter  tried  and  de- 
cided in  the  circuit  was  one  of  jurisdic- 
tion. Davis  T'.  Cleveland,  etc.,  R.  Co..  217 
U.   S.   157,   54  L.   Ed.  70S,  30   S.   Ct.  463. 

448-56a.  Presumption  as  to  certificate. 
—Scully  V.  Bird,  209  U.  S.  481,  52  L.  Ed. 
899.   28  S.   Ct.   597. 

The  ground  of  the  action  of  a  federal 
circuit  court  in  dismissing  a  bill,  as  re- 
cited in  the  certificate  presenting  a  ques- 
tion of  jurisdiction,  will  be  accepted  by 
the  supreme  court  on  a  direct  appeal, 
where  a  dififerent  course  requires  an  as- 
sumption of  inconsistency  between  the 
lower  court's  opinion  and  order  of  dis- 
missal and  such  certificate.  Scully  v. 
Bird,  209  U.  S.  481,  52  L.  Ed.  899,  28  S.  Ct. 
597. 

450-64.  Effect  of  prior  appeal  to  circuit 
court  of  appeals. — Where  a  real,  substan- 
tial constitutional  question  exists  and  a 
writ  of  error  might  have  been  sued  out 
originally  direct  from  the  circuit  court  to 
the  supreme  court  of  the  United  States, 
but  this  was  not  done,  and  an  appeal  taken 
to  a  circuit  court  of  appeals,  the  right  of 
appeal  to  the  supreme  court  is  lost.  Mac- 
Fadden  ?'.  United  States,  213  U.  S.  288,  53 
L.  Ed.  801,  29  S.  Ct.  490,  following  Rob- 
inson r.  Caldwell,  165  U.  S.  359,  41  L.  Ed. 
745.   17   S.   Ct.   343. 

450-64a.  Where  jurisdiction  of  circuit 
court  is  in  issue. — Davis  f.  Cleveland,  etc., 


51 


451-452 


APPEAL  AND  ERROR. 


Vol.  I. 


kkkk.   Hearing  and  Determination. — See  note  70. 

1111.  Scope  of  Review. — See  note  73.  The  federal  supreme  court,  on  appeal 
from  the  decision  of  a  circuit  court,  may  decide  local  questions  only,  and  omit 
to  decide  the  federal  questions  which  gave  the  lower  court  jurisdiction,  or  may 
decide  such  questions  adversely  to  the  party  claiming  their  benefit.'^sa  fj^g  gu. 
preme  court  has  jurisdiction  to  declare  the  circuit  court's  denial  of  its  own  juris- 
diction correct,  but  when  the  decision  of  the  circuit  court  is  so  plainly  right  that 
the  question  is  frivolous,  the  appeal  will  be  dismissed.'^  =^''  The  objection  that  a 
federal  circuit  court  to  which  a  suit  has  been  removed  from  a  state  court  was 
without  jurisdiction  because  the  removal  was  improper  is  not  open  on  a  direct 
appeal  to  the  supreme  court,  presenting  the  question  of  the  jurisdiction  of  the 
circuit  court,  where  the  record  and  certificate  show  that  the  jurisdiction  of  that 
court  was  denied  on  the  single  ground  that  the  state  court  where  the  proceedings 
started  was  without  jurisdiction.^^^ 


R.  Co.,  217  U.  S.  157,  54  L.  Ed.  708,  30  S. 
Ct.  463,  citing  Excelsior,  etc..  Pipe  Co.  v. 
Pacific  Bridge  Co.,  185  U.  S.  282,  46  L.  Ed. 
<tlO,  22  S.  Ct.  681;  United  States  v.  Lar- 
kin,  208  U.  S.  333,  52  L.  Ed.  517,  28  S.  Ct. 
417. 

"A  preliminary  objection  is  made  that 
this  court  can  not  entertain  jurisdiction 
of  this  writ  of  error,  because  the  case  is 
not  one  which  may  properly  come  here 
tmder  §  5  of  the  court  of  appeals  act  of 
1891,  and  it  is  contended  that,  as  the  case 
went  to  the  circuit  court  of  appeals  and 
that  court  determined  it,  if  the  present 
plaintiff  in  error  wished  to  save  the  ques- 
tion of  jurisdiction  it  should  have  been 
duly  certified  to  this  court  from  the  court 
of  appeals.  But  we  are  of  the  opinion 
that  this  objection  is  untenable.  The  case 
was  taken  to  the  circuit  court  of  appeals 
by  Walker  &  Company.  The  judgment 
of  the  circuit  court  was  in  favor  of  the 
newspaper  company.  It  had  no  occasion 
to  take  the  case  to  the  court  of  appeals. 
When  the  court  of  appeals  reversed  the 
decision  of  the  circuit  court  and  remanded 
the  case  for  trial,  because  of  its  holding 
that  the  declaration  contained  a  cause  of 
action  in  favor  of  Walker  &  Company, 
the  circuit  court  was  bound  by,  and  of 
course  followed,  the  decision  of  the  cir- 
cuit court  of  appeals."  Globe  Newspaper 
Co.  V.  Walker,  210  U.  S.  356.  361,  52  L.  Ed. 
1096,  28  S.  Ct.  726. 

451-70.  Determination  of  question  of 
jurisdiction — From  certificate. — The  ques- 
tion of  the  jurisdiction  of  the  federal  cir- 
cuit court  must  be  regarded  as  fairly  pre- 
sented, so  as  to  sustain  a  writ  of  error 
from  the  federal  supreme  court,  under  Act 
March  3,  1891,  c.  517,  §  5,  26  Stat.  827  (U. 
S.  Comp.  St.  1901,  p.  549).  despite  the  in- 
definiteness  of  the  allegations  of  the  plea 
to  the  jurisdiction,  where  the  certificate 
below  states  that  the  defendant  raised  by 
such  plea  the  objections  that  it  was  a  for- 
eign corporation  not  doing  business  in 
the  state,  and  that  the  person  attempted 
to  be  served  was  not  its  agent  at  the  time, 
and  shows  that  the  court  did  not  consider 


the  affidavits  which  the  bill  of  exceptions 
states  were  filed,  but  overruled  the  plea 
on  the  sole  ground  that  the  facts  stated 
in  the  return  of  the  sheriff  to  the  suin- 
mons  were  conclusive,  and  also  recites 
that  when  the  case  was  filed  for  trial  the 
same  objection  was  made  and  overruled 
for  the  same  reason.  Mechanical  Appli- 
ance Co.  V.  Castleman,  215  U.  S.  437,  54 
L.  Ed.  272,  30  S.  Ct.  125. 

452-73.  Questions  of  comity. — "It  has 
long  since  been  settled  that  a  mere  con- 
flict between  courts  concerning  the  right 
to  adjudicate  upon  a  particular  subject 
matter  growing  out  of  a  priority  of  ju- 
risdiction in  another  forum  involves  a 
question  of  comity,  which  there  would  be 
no  right  to  consider  if  the  direct  appeal 
involved  solely  a  question  of  jurisdiction. 
Courtney  v.  Pradt,  196  U.  S.  89,  91,  49  L. 
Ed.  398,  25  S.  Ct.  208."  Railroad  Comm.  v. 
Louisville,  etc.,  R.  Co.,  225  U.  S.  272,  56  L. 
Ed.  1087,  32  S.  Ct.  756. 

452-73a.  Omitting  decision  of  federal 
question. — Siler  v.  Louisville,  etc.,  R.  Co., 
213  U.  S.  175,  53  L.   Ed.  753,  29  S.  Ct.  451. 

452-73b.  Proceedings  frivolous  or  for 
delay. — A  decree  of  a  federal  circuit  court, 
dismissing  for  want  of  the  requisite  di- 
versity of  citizenship,  a  bill  by  which,  on 
the  ground  of  fraud,  injunctive  relief 
against  the  collection  of  a  judgment 
against  a  railway  company  and  of  a  sub- 
sequent judgment  against  the  surety  on 
its  appeal  bond  is  sought  by  such  surety 
and  by  the  person  who  is,  by  contract, 
ultimately  liable  to  pay  the  original  judg- 
ment, is  so  plainly  correct  as  to  require 
the  dismissal  of  an  appeal  to  the  supreme 
court,  where  such  decree  is  based  upon 
the  proposition  that  such  railway  com- 
pany, although  insolvent,  is  an  indispen- 
sable party,  which  must  be  aligned  with 
the  plaintiffs  for  the  purpose  of  determin- 
ing the  question  of  jurisdiction.  Steele  f. 
Culver,  211  U.  S.  26,  53  L.  Ed.  74,  29  S. 
Ct.  9. 

452-73C.  Improper  removal. — Kansas, 
etc.,  R.  Co.  V.  Zimmerman,  210  U.  S.  336, 
52   L.   Ed.   1084,  28   S.  Ct.  730. 


52 


Vol.  I. 


APPEAL  AND  ERROR. 


452-461 


Questions  of  Fact. — The  decision  below,  even  on  a  question  of  fact,  may,  if 
clearly  erroneous,  be  set  aside  by  the  federal  supreme  court  on  a  direct  writ  of 
error  sued  out  to  a  circuit  court  under  Act  March  3,  1891,  c.  517,  §  5,  26  Stat. 
S27  (U.  S.  Comp.  St.  1901,  p.  549),  to  review  a  case  in  which  the  question  of 
jurisdiction  alone  is  involved,  and  which  is  duly  certified  for  decision.'^^'^ 

mmmm.  Waiver. — A  defendant  which,  on  an  appeal  to  a  circuit  court  of  ap- 
peals from  a  decree  of  a  federal  circuit  court  sustaining  a  demurrer  to  a  bill 
on  the  ground  of  want  of  jurisdiction  of  the  state  court  from  which  the  case 
was  removed,  does  not  insist  upon  the  jurisdictional  objection,  but  takes  its 
chances  on  the  merits,  stands  in  no  better  position,  so  far  as  its  right  to  appeal 
to  the  supreme  court  from  a  decree  of  the  circuit  court,  entered  pursuant  to  the 
direction  of  the  circuit  court  of  appeals,  is  concerned,  than  if  it  had  itself  taken 
the  appeal  to  that  court.^*^^ 

nnnn.  Perfecting  Appeal. — A  direct  appeal  from  a  federal  circuit  court  to 
the  supreme  court  in  a  case  in  which  the  lack  of  a  certificate  of  jurisdiction  is 
supplied  by  the  decree  which  shows  dismissal  for  want  of  jurisdiction  only  may 
be  perfected  after  the  term,  if  within  two  years  from  the  entry  of  the  decree.^""' 

ccc.  In  Cases  of  Conviction  of  Capital  or  Infamous  Crimes — aaaa.  By  Act  of 
March  ^rd,  i8gi — aaaaa.  In  General. — The  contention  that  under  Rev.  St.  § 
1342,  art.  62  (U.  S.  Comp.  St.  1901,  p.  957),  a  court-martial  has  exclusive  juris- 
diction over  the  crimes  committed  by  a  military  officer  which  are  cognizable  by 
courts-martial  under  the  provisions  of  that  article,  is  too  clearly  unfounded  to 
serve  as  the  basis  of  a  writ  of  error  from  the  federal  supreme  court  to  review 
a  conviction  in  a  cicuit  court.^^^ 

ddd.  In  Cases  Involving  the  Construction  or  Application  of  the  Federal  Con- 
stitution— bbbb.    Determination   of  Question. — See  note  23. 


452-73d.  Questions  of  fact. — Commer- 
cial Mut.  Acci.  Co.  V.  Davis,  213  U.  S. 
245,   53    L.    Ed.   782,  29   S.    Ct.   445. 

A  finding  of  a  federal  circuit  court  that 
a  foreign  insurance  company  was  not  in- 
duced by  fraud  to  send  its  medical  repre- 
sentative into  the  state,  clothed  with  au- 
thority to  settle  a  loss,  so  as  to  permit 
service  of  process  on  him  in  an  action 
against  the  companJ^  will  not  be  set  aside 
by  the  federal  supreme  court  as  erro- 
neous, where  the  lower  court  might  have 
found  on  the  testimony  that  there  was  a 
bona  fide  attempt  to  settle  the  contro- 
versy, and  that  it  was  only  upon  failure 
to  reach  a  settlement  that  service  of  sum- 
mons was  made.  Commercial  Mnt.  Acci. 
Co.  i:  Davis,  213  U.  S.  245,  53  L.  Ed.  782. 
29  S.  Ct.  445. 

454-80a.  Waiver. — Kansas,  etc..  R.  Co.  v. 
Zimmerman,  210  U.  S.  336,  52  L.  Ed.  1084, 
28   S.  Ct.  730. 

454-80b.  Perfecting  appeal. — Herndon- 
Carter  Co.  v.  Norris.  etc..  Co.,  224  U.  S. 
496,  56  L.   Ed.  857.  32  S.  Ct.  550. 

454-83a.  Crimes  committed  by  military 
officer. — Franklin  7\  United  States,  216  U. 
S.   559,   54    L.    Ed.   615,   30   S.   Ct.   434. 

461-23.  Question  must  be  substantial. — 
It  is  established  that  to  give  the  supreme 
court  jurisdiction  on  a  direct  appeal  from, 
or  writ  of  error  to,  a  circuit  court  on  the 
ground  of  a  constitutional  question,  such 
question  must  be  real  and  substantial,  and 
not  a  mere  claim  in  words.     Kaufman   & 


Sons  Co.  V.  Smith,  216  U.  S.  610,  54  L. 
Ed.   636,   30    S.   Ct.   419. 

The  mere  fact  that  a  constitutional 
question  is  alleged  does  not  suffice  to 
confer  jurisdiction  to  review  by  direct  ap- 
peal a  decision  of  the  circuit  court,  if  such 
question  is  unsubstantial,  and  so  devoid 
of  merit  as  to  be  clearly  frivolous.  Good- 
rich V.  Ferris,  214  U.  S.  71,  53  L.  Ed.  914, 
29   S.   Ct.  580. 

Sufficiency  of  indictment. — The  conten- 
tion that  an  indictment  charging  subor- 
nation of  perjury  before  a  federal  grand 
jury  did  not  sufficiently  set  forth  "the  na- 
ture and  cause  of  the  accusation,"  within 
the  meaning  of  U.  S.  Const.,  6th  Amend., 
because  it  did  not  "set  forth  in  some  defi- 
nite way  the  matter  or  thing  which  was 
under  investigation  at  the  particular  time, 
so  that  the  defendant  may  know  as  to 
what  particular  controversy  the  alleged 
false  testimony  is  claimed  to  be  material, 
and  how  to  meet  the  allegation  of  ma- 
teriality," is  too  frivolous  to  serve  as  the 
basis  of  a  writ  of  error  from  a  federal  su- 
preme court  to  a  circuit  court,  to  review 
a  conviction  under  such  indictment,  where 
the  description  therein  of  the  proceeding 
in  which  the  perjury  was  committed  is 
as  follows:  "*  *  *  Sitting  as  a  grand 
jurj^  *  *  *  and,  among  otlier  matters,  in- 
quiring into  certain  criminal  violations  of 
the  laws  of  the  said  United  States  relat- 
ing to  the  public  lands  and  the  disposal 
of   the    same,    and    the     unlawful      fencing 


53 


461 


APPEAL  AND  ERROR. 


Vol.  I. 


thereof,  which  liad  then  lately  before  been 
committed  within  the  said  district."  Hen- 
dricks V.  United  States.  223  U.  S.  178,  56 
L.    Ed.   394,   32   S.    Ct.   313. 

Constitutional  privilege  from  arrest.— 
The  contention  that  the  constitutional 
privilege  of  a  congressman  from  arrest 
embraces  arrest  and  punishment  for  a 
criminal  offense  while  congress  is  not  in 
session  is  not  so  frivolous  as  not  to  sus- 
tain a  direct  writ  of  error  from  the  su- 
preme court  of  the  United  States  to  a  cir- 
cuit court.  Williamson  v.  United  States, 
207  U.  S.  425,  52  L.  Ed.  278,  28  S.  Ct.  163. 
See   post,   PRIVILEGE. 

Revenue  cases. — A  contention  by  im- 
porters that  the  treasury  regulations  re- 
specting the  polariscopic  test  for  sugar 
assumed  to  add  something  to  the  dutiable 
standard  prescribed  by  Tariff  Act  July  24, 
1897,  c.  11,  §  1,  Schedule  E,  par.  209,  30 
Stat.  168  (U.  S.  Comp.  St.  1901.  p.  1647), 
and  that  the  secretary  of  the  treasury  thus 
exercised  legislative  power  confided  by 
the  constitution  solely  to  congress,  does 
not  constitute  a  real  and  substantial  dis- 
pute or  controversy  concerning  the  con- 
struction or  application  of  the  federal  con- 
stitution within  the  meaning  of  Act  March 
3.  1891,  c.  517,  §  5,  26  Stat.  828  (U.  S. 
Comp.  St.  1901,  p.  549),  so  as  to  sustain 
a  direct  appeal  from  a  federal  circuit  court 
to  the  supreme  court.  '  American  Sugar 
Refin.  Co.  v.  United  States.  211  U.  S. 
155,  53  L.  Ed.  129,  29  S.   Ct.  89. 

No  direct  appeal  lies  from  a  circuit 
court  where  the  only  real,  substantial 
point  was  that  an  officer  of  the  United 
States  misconstrued  the  tariff  act  of  1897. 
Shaw  V.  United  States,  212  U.  S.  559,  53 
L.  Ed.  652,  29  S.  Ct.  687.  following  Ameri- 
can Sugar  Refin.  Co.  v.  United  States,  211 
U.   S.   155,   53   L.   Ed.   129.  29   S.   Ct.   89. 

The  contention  that  merchandise  com- 
ing into  the  United  States  from  the  Canal 
Zone  in  the  Isthmus  of  Panama  could  not 
be  subjected,  as  is  attempted  by  Act 
March  2.  1905  (33  Stat.  843,  c.  1310),  to 
the  duties  imposed  on  merchandise  im- 
ported from  foreign  countries,  is  too 
frivolous  to  serve  as  the  basis  of  a  direct 
writ  of  error  from  the  federal  supreme 
court  to  a  circuit  court.  Kaufman  & 
Sons  Co.  7'.  Smith,  216  U.  S.  610,  54  L. 
Ed.  636.  30   S.   Ct.   419. 

Production  of  books  and  papers. — A 
judgment  of  a  federal  circuit  court 
discharging  a  writ  of  habeas  corpus  to 
inquire  into  a  detention  under  an  order 
committing  a  district  attorney  for  con- 
tempt in  refusing  to  obey  an  order  di- 
recting him  to  return  to  the  owners  cer- 
tain books  and  papers  in  his  possession  is 
not  reviewable  in  the  federal  supreme 
court,  under  Act  March  3,  1891,  c.  517  §  5 
26  Stat.  827  (U.  S.  Comp.  St.  1901,  p.  549). 
as  mvolving  a  federal  question,  although 
the  reason  assigned  for  the  order  for  the 


return  of  the  books  and  papers  was  that 
they  had  been  seized  in  violation  of  con- 
.-titutional  rights.  Wise  v.  Henkel,  220 
U.   S.  556,  55   L.   Ed.  581,  31   S.   Ct.  599. 

Habeas  corpus  proceedings  on  behalf  of 
a  person  whose  interstate  extradition  is 
sought  pursuant  to  the  federal  constitu- 
tion and  laws,  and  who  contends  that  his 
detention  in  custody  is  unlawful  because 
the  indictment,  which  is  its  only  excuse, 
is  not  a  charge  of  crime  within  the  mean- 
ing of  Const.  U.  S.,  art.  4,  §  2,  par.  2, 
regulating  extradition,  involve  the  con- 
struction of  the  constitution  of  the  United 
States,  within  the  meaning  of  Act  March 
3,  1891,  c.  517,  §  5,  26  Stat.  826  (U.  S. 
Comp.  St.  1901,  p.  488),  governing  direct 
appeals  from  the  circuit  courts  to  the  su- 
preme court.  Judgment,  Ex  parte  Pierce 
(C.  C.  1907),  155  F.  663,  affirmed.  Pierce 
V.  Creecy,  210  U.  S.  387,  52  L.  Ed.  1113, 
28    S.    Ct.    714. 

"The  first  inquiry  must  be  whether 
there  is  jurisdiction  of  this  appeal,  which 
was  taken  from  the  circuit  court  directly 
to  this  court.  Since  the  passage  of  the 
act  establishing  the  circuit  court  of  ap- 
jjeals  (26  Stat.  826),  appeals  in  habeas 
corpus  cases  from  the  district  and  circuit 
courts  can  only  be  taken  to  the  circuit 
court  of  appeals,  unless  they  are  of  the 
kind  specified  in  §  5  of  the  act,  wherein  a 
direct  appeal  to  this  court  is  allowed.  *  *  * 
Of  the  latter  class  is  'any  case  that  in- 
volves the  construction  or  application  of 
the  constitution  of  the  United  States."' 
Pierce  v.  Creecy.  210  U.  S.  387,  400,  52  L. 
Ed.  1113,  28  S.  Ct.  714. 

An  appeal  from  a  federal  circuit  court 
to  review  an  order  refusing  relief  by 
habeas  corpus  to  an  alien  in  custody  un- 
der a  warrant  of  deportation,  will  be  dis- 
missed for  want  of  jurisdiction.  Yeung 
How  v.  North,  223  U.  S.  705,  56  L.  Ed. 
621.  32  S.  Ct.  517,  citing  Farrell  v. 
O'Brien.  199  U.  S.  89,  100,  50  L.  Ed.  101, 
35  S.  Ct.  727;  Kaufman  &  Sons  Co.  v. 
Smith,  216  U.  S.  610,  54  L.  Ed.  636,  30  S. 
Ct.  419;  Fong  Yue  Ting  v.  United  States, 
149  U.  S.  698,  763,  37  L.  Ed.  905,  13  S.  Ct. 
1016,  §  14  of  Act  of  May  6,  1882  (22  Stat, 
at  L.  61,  chap.  126.  U.  S.  Comp.  Stat.  1901, 
p.   1333). 

Injunction  against  state   gaugers. — The 

construction  of  the  federal  constitution  is 
not  involved  so  as  to  sustain  a  direct  ap- 
peal to  the  federal  supreme  court  under 
Act  March  3,  1891,  c.  517,  §  5.  26  Stat. 
827  (U.  S.  Comp.  St.  1901,  p.  549),  from  a 
decree  of  a  circuit  court  enjoining  state 
gaugers  from  proceeding  under  acts  La. 
1904.  p.  201,  Act.  No.  80,  to  gauge  coal 
except  as  to  coal  sold  or  intended  for 
saje  by  boat  or  barge  loads  or  some 
aliquot  part  thereof,  unless  there  is  a 
question  as  to  the  relation  between  some 
provision  of  the  federal  constitution  and 
the  state  statute.     Knop  v.  Monongahela, 


54 


Vol.  I. 


APPEAL  AND  ERROR. 


463 


Showing  as  to  Jurisdiction. — If  a  case  is  brought  up  from  the  circuit 
court  on  the  ground  that  it  involves  the  construction  or  application  of  the  con- 
stitution of  the  United  States,  the  record  must  show  that  the  question  was 
raised  for  the  consideration  of  the  court  below. -^"^ 

Hearing  and  Determination. — A  decision  on  the  merits  may  be  had  in  the 
federal  supreme  court  on  a  direct  appeal  taken  under  Act  March  3,  1891  c  517 
26  Stat.  827,  c.  517  (U.  S.  Comp.  St.  1901,  p.  488),  §  5,  in  a  case  involving  a 


etc.,  Coke  Co.,  211  U.  S.  485,  53  L.  Ed. 
294,   29   S.   Ct.   188. 

The  contention  that  the  provisions  of 
Acts  La.  1904,  p.  201,  Act  No.  80,  for 
gauging  coal,  apply  to  sales  by  weight 
and  measurement,  and,  if  so  construed, 
violate  the  federal  constitution,  does  not 
present  a  federal  question  which  will  sus- 
tain a  direct  appeal  to  the  federal  supreme 
court  under  x\ct  March  3,  1891,  c.  517, 
§  5,  26  Stat.  827  (U.  S.  Comp.  St.  1901,  p. 
549),  from  a  decree  of  a  federal  circuit 
court  enjoining  the  state  gangers  from 
proceeding  under  the  state  statute  except 
as  to  coal  sold  or  intended  for  sale  by 
boat  or  barge  load  or  some  aliquot  part 
thereof,  where  the  statute,  construed  as 
applying  to  boat  and  barg-e  loads,  has 
been  declared  valid  by  the  federal  su- 
preme court,  and  appellee  does  not  con- 
tend that  the  statute  is  invalid,  but  only 
thai:  it  is  inapplicable  to  the  facts.  Knop 
v.  Monongahela,  etc..  Coke  Co.,  211  U. 
S.  485,_  53   L.   Ed.  294,  29  S.   Ct.   188. 

Navigable  waters. — An  appeal  from  the 
United  States  circuit  court  to  review  its 
decree  upholding,  the  title  of  the  vendees 
of  the  state  to  land  between  high  and  low 
water  mark,  will  be  dismissed  for  want 
of  jurisdiction.  Bird  v.  Ashton,  220  U.  S. 
604.  55  L.  Ed.  605,  31  S.  Ct.  718,  citing 
McGilvra  v.  Ross.  215  U.  S.  70,  54  L.  Ed. 
95,  30  S.  Ct.  27;  Shively  v.  Bowlby,  152  U. 
S.  1,  38  L.  Ed.  331,  14  S.  Ct.  548;  Good- 
rich V.  Ferris,  214  U.  S.  71,  81,  53  L.  Ed. 
914,  919.  29  S.  Ct.  580;  Farrell  v.  O'Brien, 
199  U.  S.  89,  50  L.  Ed.  101,  25  S.  Ct.  727: 
United  States  Fidelity,  etc.,  Co.  v.  United 
States.  204  U.  S.  349,  51  L.  Ed.  516,  27 
S.  Ct.  381. 

Denial  of  due  process  of  law. — A  writ 
of  error  to  a  circuit  court  to  review  a 
judgment  for  a  tenant  in  a  writ  of  entry 
under  the  Massachusetts  practice,  which 
seeks  to  invalidate  a  charitable  bequest 
on  the  ground  that  a  subsequent  state 
statute  increasing  the  value  of  the  prop- 
erty which  the  corporate  beneficiary 
might  hold  contravenes  the  14th  amend- 
ment to  the  federal  constitution,  will  be 
dismissed  for  want  of  jurisdiction.  Hub- 
"bard  v.  Worcester  Art  Museum,  220  U. 
S.  605,  55  L.  Ed.  606,  31  S.  Ct.  718,  citing 
First  Nat.  Bank  ?■.  Citv  Council,  215  U. 
S.  341,  346,  54  L.  Ed.  223,  30  S.  Ct.  152; 
Rogers  r.  Clark  Iron  Co.,  217  U.  S.  589, 
54  L.  Ed.  895,  30  S.  Ct.  693:  Water';- 
Pierce  Oil   Co.  t'.  Texas,  No.  2.  212  U.   S. 


112,  117,  53  L.  Ed.  431,  29  S.  Ct.  227;  Cin- 
cinnati, etc.,  R.  Co.  7A  Slade,  216  U.  S.  78, 
S3,  54  L.  Ed.  390,  30  S.  Ct.  230.  See 
Home  for  Destitute  Children  v.  Brigham 
Hospital,  220  U.  S.  603,  55  L.  Ed.  604,  31 
S.   Ct.  716. 

The  contention  that  constitutional  rights 
to  trial  by  jury  and.  to  due  process  of  law 
are  infringed  by  the  action  of  a  federal 
circuit  court,  after  appointing  receivers  of 
the  assets  and  property  of  a  corporation, 
and  enjoining  any  interference  with  such 
property,  in  compelling  repayment  by 
summary  process,  after  due  .notice  and 
opportunity  for  hearing,  from  one  who, 
with  knowledge  of  the  injunction,  collects 
a  check  drawn  in  his  favor  by  the  cor- 
poration to  satisfy  a  debt,  and  in  denying 
his  application  to  compel  the  bringing  of 
an  action  at  law  for  the  recovery  of  the 
proceeds  of  the  check,  is  too  frivolous  to 
i.erve  as  the  foundation  of  a  writ  of  error 
from  the  supreme  court.  Bien  v.  Robin- 
son, 208  U.  S.  423,  52  L.  Ed.  556,  28  S. 
Ct.  379. 

An  appeal  from  a  United  States  cir- 
cuit court  to  review  a  decree  sustaining 
a  demurrer  to  and  dismissing  a  bill  to 
have  a  charitable  bequest  declared  void 
on  the  ground  that  a  subsequent  state 
statute  increasing  the  amount  of  the  value 
of  the  property  which  the  corporate 
l^eneficiary  might  hold  was  invalid  as 
taking  property  without  due  process  of 
law,  will  be  dismissed  for  want  of  juris- 
diction, because  the  claim  of  a  federal 
question  is  frivolous.  Home  for  Desti- 
tute Children  r.  Brigham  Hospital,  220  U. 
S.  603,  55  L.  Ed.  604,  31  S.  Ct.  716,  citing 
Farrell  v.  O'Brien.  199  U.  S.  89,  100.  50 
L.  Ed.  101,  25  S.  Ct.  727:  Kaufman  &  Sons 
Co.  V.  Smith.  216  U.  S.  610.  5,4  L.  Ed.  636, 
30   S.    Ct.   419. 

A  claim  that  ten  days'  statutory  notice 
of  the  time  appointed  for  action  upon  a 
petition  for  the  settlement  of  the  final  ac- 
count of  an  executor  and  for  the  final  dis- 
tribution of  the  decedent's  estate  is  so  un- 
reasonable as  to  a  nonresident  claimant 
as  to  be  wanting  in  due  orocess  of  law  is 
too  clearlv  unsubstantial  and  devoid  of 
merit  to  furnish  a  basis  for  a  direct  appeal 
to  the  supreme  court  from  a  decree  of  a 
circuit  court.  Goodrich  7-.  Ferris.  214  U. 
S.  71.  53  L.   Fd.  914.  29  S.   Ct.  580. 

463-29a.  Showing  as  to  jurisdiction. — 
Paraiso  7'.  I/nited  \States.  207  U.  S.  36S. 
■^-0.   52    L     Fd.   249.   28    S.    Ct.    127. 


463-464 


APPEAL  AND  ERROR. 


Vol.  I. 


question  under  the  federal  constitution,  although  the  circuit  court  dismissed  the 
case  for  want  of  jurisdiction,  and  has  certified  the  question  of  jurisdiction  alone 
to  the  supreme  court  for  decision.^^'' 

cccc.    Proceedings  Reviezvable. — See  note  30. 

ffff.  Time  When  Constitutional  Question  Must  Exist. — If  a  constitutional 
question  exist  when  the  writ  of  error  is  sued  out  to  review  by  direct  appeal  a 
decision  of  the  circuit  court,  the  federal  supreme  court  has  jurisdiction  even 
though  the  question  has  later  become  a  mere  abstraction.s^^ 

gggg.  Scope  of  Reinetv. — Where  a  writ  of  error  to  review  a  criminal  convic- 
tion is  prosecuted  directly  from  the  federal  supreme  court  to  the  trial  court 
upon  the  assumption  that  rights  under  the  constitution  are  involved,  but  the 
errors  assigned  relate  not  only  to  such  question  but  also  to  many  other  subjects, 
if  there  be  a  constitutional  question  adequate  to  the  exercise  of  jurisdiction,  the 
duty  exists  to  review  the  whole  case.-^"*" 

eee.  In  Cases  Involving  the  Constitutionality  of  Any  Lazif  of  the  United 
States  or  the  Validity  or  Construction  of  Treaties — aaaa.  In  General. — See 
note  35. 


463-29b.     Hearing   and   determination, — 

North  American  Cold  Storage  Co.  v.  Chi- 
cago, 211  U.  S.  306,  53  L.  Ed.  195,  29  S. 
Ct.  101. 

463-30.  Proceeding  reviewable — The 
clauses  as  to  appeals  or  writs  of  error 
where  constitutional  questions  were  in- 
volved made  no  distinction  in  their  lan- 
guage between  civil  and  criminal  cases, 
and  no  distinction  as  to  the  party  who  was 
aggrieved  by  the  decision  in  the  court 
below.  United  States  z'.  Dickinson,  213 
U.  S.   92,  53   L.   Ed.  711,  718,  29   S.   Ct.   485. 

464-34a.  When  question  must  exist. — 
Williamson  v.  United  States,  207  U.  S. 
425,   52   L.   Ed.   278,  28   S.    Ct.   163. 

A  writ  of  error  from  the  federal  su- 
preme court  to  review  the  conviction  of  a 
congressman  in  a  circuit  court,  presenting 
a  question  respecting  his  alleged  consti- 
tutional privilege  from  arrest,  will  not  be 
dismissed  because  the  congress  of  which 
the  accused  was  a  member  has  ceased  to 
exist,  since,  even  if  the  question  has  thus 
become  a  mere  abstraction,  jurisdiction  of 
the  writ  of  error  depends  upon  the  ex- 
istence of  a  constitutional  question  when 
the  writ  was  sued  out.  Williamson  v. 
United  States,  207  U.  S.  425,  52  L.  Ed.  278, 
28    S.    Ct.   163. 

464-34b.  Scope  of  review. — Williamson 
V.  United  States,  207  U.  S.  435,  432,  52  L. 
Ed.   278,  28   S.   Ct.   163. 

464-35.  Revenue  case — Constitutionality 
of  law  involved.— The  federal  supreme 
court  will  entertain  a  direct  review  in  a 
revenue  case  v/hich  involves  not  only 
questions  of  classification  and  amount  of 
duty  thereunder,  as  specified  in  the  reve- 
nue act,  but  also  a  question  under  the  5th 
section  as  to  the  constitutionality  of  a 
law  of  the  United  States,  or  the  validity 
or  construction  of  a  treaty  under  its  au- 
thority. Altman  &  Co.  v.  United  States, 
224  U.  S.  583.  56  L.  Ed.  894.  32   S.   Ct.  593. 

A   direct   appeal   lies  to   the   federal   su- 


preme court  from  a  circuit  court  in  a 
revenue  case  in  which,  in  addition  to  an 
objection  to  the  classification  and  the  rate 
of  duty,  there  is  involved  the  construction 
of  a  federal  law,  or  the  validity  or  con- 
struction of  a  treaty,  within  the  meaning 
of  the  act  of  March  3,  1891  (26  Stat,  at 
L.  826,  827,  828,  chap.  517,  U.  S.  Comp. 
Stat.  1901,  pp.  488,  549),  §  5,  governing 
such  direct  appeals,  notwithstanding  the 
provision  of  §  6  of  that  act,  making  the 
circuit  courts  of  appeals  the  proper  and 
final  tribunals  in  revenue  cases,  and  the 
special  provision  of  the  act  of  May  27, 
1908  (35  Stat,  at  L.  403,  chap.  205), 
amendatory  of  the  revenue  act  of  June 
10,  1890  (26  Stat,  at  L.  131,  chap.  407,  U. 
S.  Comp.  Stat.  1901,  p.  1886),  for  the  re- 
view by  the  circuit  courts  of  appeals  of  de- 
cisions as  to  the  construction  of  the  tariff 
laws  and  the  facts  respecting  the  classi- 
fication of  merchandise,  and  the  rate  of 
duty  imposed  thereon  under  such  classi- 
fication. Altman  &  Co.  v.  United  States, 
224  U.  S.  583,  56  L.  Ed.  894,  32  S.  Ct.  593. 

"We  think  the  cases  show  that  this 
court,  so  far  as  it  has  had  occasion  to 
deal  with  the  question,  has  permitted  di- 
rect appeal  to  this  court  in  all  revenue 
cases  where,  in  addition  to  the  objection 
to  classification  of  merchandise  and  rate 
of  duty  imposed,  a  real  question  under 
§  5  has  been  involved."  Altman  &  Co.  v. 
United  States,  224  U.  S.  583,  56  L.  Ed. 
894,  32   S.   Ct.   593. 

Nor  did  the  amendment  of  the  revenue 
act  by  the  act  of  May  27,  1908,  effect  any 
change  in  this  respect,  for  its  provisions 
with  respect  to  the  review  of  the  decision 
of  a  circuit  court  are  substantially  iden- 
tical with  the  act  of  Tune  10,  1890,  except 
that  the  decision  of  a  circuit  court  is 
made  final,  unless  the  court  certifies  that 
it  is  of  the  opinion  that  the  question  in- 
volved is  of  such  importance  as  to  re- 
quire   a    review    of    such    decision    by    the 


56 


Vol.  I. 


APPEAL  AND  ERROR. 


466-471 


bbbb.   Determination  of  Question. — See  note  42. 

fff.   In  Cases  Involving  the  Constitutionality  of  State  Laivs  and  Constitutions 
— aaaa.    In  General. — See  note  51. 

dddd.    Shoii'ing  as  to  lurisdiction. — See  note  59.     The  claim  to  give  a  right 


circuit  court  of  appeals,  tlie  decree  of 
which  may  be  reviewed  in  the  supreme 
court  in  any  of  the  ways  provided  in  cases 
arising  under  the  revenue  laws  by  the  act 
approved  March  3,  1891,  being  the  circuit 
court  of  appeals  act;  but  that  act  (amend- 
ment of  May  27,  1908),  like  the  act  of 
June  10,  1890,  provides  only  for  the  re- 
view of  decisions  of  the  board  of  gen- 
eral appraisers  "as  to  the  construction  of 
the  law  and  the  facts  respecting  the 
classification  of  such  merchandise  and  the 
rate  of  duty  imposed  thereon  under  sucli 
classification."  This  act  does  not  change 
the  eft'cct  of  the  circuit  court  of  appeals 
act,  and  operates  to  prevent  an  appeal 
here  in  cases  really  involving  the  consti- 
tution of  the  United  States  or  the  con- 
struction of  a  treaty.  Altman  &  Co.  v. 
United  States,  224  U.  S.  583,  56  L.  Ed. 
894,   32   S.    Ct.   593. 

466-42.  Validity  or  construction  of 
treaties — In  general. — Direct  appeals  lie 
from  the  circuit  court  to  the  federal  su- 
preme court  under  §  5  of  the  circuit  court 
of  appeals  act.  if  the  interpretation  or 
construction  of  a  treaty  is  involved.  Alt- 
man  &  Co.  V.  United  States,  224  U.  S.  583. 
56    L.    Ed.    894,    32    S.    Ct.    593. 

An  international  compact  or  commer- 
cial agreement,  authorized  by  the  federal 
congress  and  negotiated  and  proclaimed 
under  the  authority  cf  the  president  is  a 
treaty  within  the  meaning  of  the  circuit 
court  of  appeals  act,  and  where  its  con- 
struction is  directly  involved  there  is  a 
right  of  review  by  direct  appeal  to  the 
federal  supreme  court.  Altman  &  Co.  t. 
United  States,  224  U.  S.  583.  56  L.  Ed. 
894,   32    S.    Ct.    593. 

The  commercial  reciprocal  agreement 
with  France,  negotiated  under  the  au- 
thority contained  in  the  tariff  act  of  1897 
(30  Stat,  at  E.  151,  chap.  11.  U.  S.  Comp. 
Stat.  1901,  p.  1626),  §  3,  to  make  recipro- 
cal agree>ments  with  reference  to  certain 
specified  articles,  is  a  treaty  within  the 
meaning  of  the  act  of  March  3.  1891,  §  5, 
giving  a  direct  appeal  from  a  federal  cir- 
cuit court  to  the  supreme  court  in  cases 
where  the  validity  or  construction  of  an}' 
treaty  made  under  the  authority  of  the 
United  States  is  drawn  in  question.  Alt- 
man  &  Co.  V.  United  States,  224  U.  S. 
583,   56   L.   Ed.   894,   32    S.   Ct.   593. 

469-51.  A  suit  to  enjoin  a  state  official 
from  enforcing  the  provisions  of  a  regis- 
tration and  inspection  law  is  one  in  which 
the  law  of  a  state  is  claimed  to  be  in  con- 
travention of  the  constitution  of  the 
United  States,  within  the  meaning  of  the 
Act  of  March  3.   1891    (26   Stat,  at  L.   827, 


chap.  517,  U.  S.  Comp.  Stat.  1901,  p.  549), 
§  5,  so  as  to  permit  a  direct  appeal  to  the 
federal  supreme  court  from  a  decree  of  a 
circuit  court,  sustaining  a  general  de- 
murrer to  the  bill  for  want  of  equity, 
where  such  bill,  although  averring  that 
complainant's  product  is  not  compre- 
hended by  the  statute,  properly  inter- 
preted, also  alleges  that  the  defendant, 
who  was  authorized  to  enforce  the  stat- 
ute, had  construed  it  to  be  applicable  to 
such  product,  and  challenges  the  consti- 
tutionality of  the  statute  as  so  construed. 
Savage  v.  Jones,  225  U.  S.  501,  56  L.  Ed. 
1182,   32   S.   Ct,   715, 

471-59.  Validity  of  tax  on  spirits. — The 
contention  that  due  process  of  law  is 
denied  by  a  tax  imposed  under  the  au- 
thority of  Code  Pub.  Gen.  Laws  Md.  1904, 
art.  81,  §§  214,  215,  upon  a  custodian  of 
distilled  spirits,  which  rests  upon  the  the- 
ory that  the  taxing  power  of  the  state  is, 
by  its  constitution,  confined  exclusively 
to  the  levy  of  taxes  in  personam  upon  the 
owners  of  property,  is  too  devoid  of  merit 
to  present  a  substantial  federal  question 
which  will  sustain  a  direct  writ  of  error 
from  the  federal  supreme  court  to  a  cir- 
cuit court,  where  the  highest  state  court 
has  upheld  the  statute  m  controversy  as 
an  exercise  of  the  taxing  power  of  the 
state,  and,  in  so  doing,  declared  that  it 
but  reiterated  and  re-expounded  the  rul- 
ings by  it  previously  made.  Hannis  Dis- 
tilling Co.  71.  Baltimore,  216  U,  S,  285,  54 
L.  Ed.  482.  30  S.  Ct.  326. 

Delegation  of  legislative  power. — The 
claim  that  power  of  legislation  is  uncon- 
stitutionall}'  delegated  to  the  state  legis- 
latures by  Act  July  7,  1898,  c.  576,  §  2,  30 
Stat,  717  (U.  S.  Comp,  St.  1901,  p.  3652), 
adopting  such  punishment  for  offenses 
committed  in  places  under  the  exclusive 
jurisdiction  and  control  of  the  United 
States  as  the  laws  of  the  state  in  which 
such  places  are  situated  "now  provide" 
for  a  like  ofifense,  the  punishment  there- 
for not  being  otherwise  provided  for  by 
any  law  of  the  United  States,  is  too  clearly 
unfounded  to  serve  as  the  basis  of  a  writ 
of  error  from  a  federal  supreme  court  to 
a  circuit  court,  Franklin  v.  United  States, 
216  U.   S.  559,  51  E.  Ed.  615,  30  S.   Ct.  434, 

Statutes  forfeiting  land  for  nonpay- 
ment of  taxes.— Any  question  respecting 
the  invalidity  of  the  provisions  of  the 
West  Virginia  constitution  for  the  forfei- 
ture of  lands  to  the  state  for  five  years' 
neglect  to  pay  taxes  is  too  clearly  fore- 
closed by  prior  decisions  of  the  federal 
supreme  court  to  serve  as  the  basis  of  a 


rr\t   of   error   to   a   circuit   court. 


•ay 


57. 


471-483 


APPEAL  AND  ERROR. 


Vol.  I. 


of  appeal,  under  §  5  of  the  Court  of  Appeals  Act,  need  not  necessarily  be  in  the 
pleading  of  the  party  invoking  the  jurisdiction  of  the  court;  it  is  sufficient  if 
such  right  is  duly  claimed  in  the  case  because  the  statute  is  silent  as  to  how  this 
claim  shall  be  made.*^""" 

3.  Ove:r  Circuit  Court  of  Appe^als — b.  By  Appeal  or  Writ  of  Error — 
(4)  Decisions  Reviezvable — ee.  Cases  Dependent  upon  Citizenship  of  Parties. 
See  notes  26,  27,  30.     A  constitutional  question  first  advanced  on  the  trial 


Crozer,  217  U.  S.  455,  54  L.  Ed.  837,  30 
S.    Ct.   568. 

471-60a.  Claim  need  not  be  in  plead- 
ings.— Memphis  v.  Cumberland,  etc.,  Tel. 
Co.,  218  U.  S.  624,  54  L.  Ed.  1185,  31  S. 
Ct.   115. 

A  suit  to  enjoin  the  enforcement  of  a 
municipal  ordinance  regulating  telephone 
rates  is  not  one  in  which  the  constitution 
or  law  of  a  state  is  "claimed"  to  violate 
the  federal  constitution  within  the  mean- 
ing of  Act  March  3,  1891,  c.  517,  §  5,  26 
Stat.  827  (U.  S.  Comp.  St.  1901,  p.  549), 
governing  direct  review  in  the  federal  su- 
preme court  of  decrees  of  circuit  or  dis- 
trict courts,  where  the  first  and  only 
reference  to  the  federal  constitution  is  in 
the  opinion  of  the  circuit  judge,  on  final 
hearing,  holding  that  the  rates  are  con- 
fiscatory and  destructive  of  the  telephone 
company's  rights  under  that  constitution; 
the  case  as  made  by  the  bill  being  that  the 
ordinance  was  passed  without  legislative 
authority,  and  its  further  allegations  as 
to  the  confiscatory  character  of  the  or- 
dinance being  referable  only,  if  con- 
sistency with  its  other  provisions  is_  to 
be  observed,  to  the  state  constitution, 
which  would  be  violated  if  such  allega- 
tions were  true.  Memphis  v.  Cumber- 
land, etc.,  Tel.  Co.,  218  U.  S.  624,  54  L. 
Ed.    1185,   31    S.    Ct.    115. 

483-26.  Cases  dependent  upon  citizen- 
ship of  parties. — Where  the  jurisdiction 
of  the  court  below  depended  entirely  upon 
the  diverse  citizenship  of  the  parties,  a 
writ  of  error  to  the  United  States  circuit 
court  of  appeals  will  be  dismissed  for 
want  of  jurisdiction.  Erie  R.  Co.  v.  Rus- 
sell, 220  U.  S.  607,  55  L.  Ed.  607,  31  S. 
Ct.  722;  Tolliver  v.  Great  Northern  R. 
Co.,  223  U.  S.  711,  56  L.  Ed.  624,  32  S.  Ct. 
520,  citing  Weir  v.  Rountree,  216  U.  S. 
607.  54  L.  Ed.  635,  30  S  Ct.  418;  Van  Sice 
V.  Ibex  Min.  Co.,  223  U.  S.  712,  56  L.  Ed. 
625,  32  S.  Ct.  520;  Bagley  v.  General  Fire, 
etc.,  Co.,  212  U.  S.  477,  53  L.  Ed.  605,  29 
S.  Ct.  341;  Macfadden  v.  United  States, 
213  U.  S.  288,  293,  53  L.  Ed.  801,  29  S. 
Ct.  490;  Pope  V.  Louisville,  etc.,  R.  Co., 
173  U.  S.  573,  582,  43  L.  Ed.  814,  19  S. 
Ct.    500. 

Section  of  the  Act  of  March  3,  1891  (26 
Stat,  at  L.  828.  chap.  517,  U.  S.  Comp. 
Stat.  1901,  p.  550),  declaring  that  "the 
judgments  or  decrees  of  the  circuit  court 
of  appeals  shall  be  final  in  all  cases  in 
which  the  jurisdiction  is  dependent  en- 
tirely upon  the  opposite  parties  to  a  suit 


or  controversy  being  *  *  *  citizens  of 
different  states,"  refers  to  the  jurisdic- 
tion of  the  federal  court  of  first  instance. 
Thus,  it  often  becomes  necessary  to  con- 
sider whether  the  jurisdiction  of  the  cir- 
cuit court  depended  entirely  upon  di- 
versity of  citizenship.  If  it  did,  the 
appeals  must  be  dismissed.  Shulthis  t'. 
McDougal,  225  U.  S.  561,  56  L.  Ed.  1205, 
32  S.  Ct.  704. 

'Tt  is  not  enough  that  grounds  of  ju- 
risdiction other  than  diverse  citizenship 
may  be  inferred  argumentatively  from 
the  statements  in  the  bill,  for  jurisdiction 
can  not  rest  on  any  ground  that  is  not  af- 
firmatively and  distinctly  set  forth. 
Hanford  v.  Davies  163  U.  S.  273,  280.  41 
L.  Ed.  157,  16  S.  Ct.  1051;  Mountain  View 
Min.,  etc.,  Co.  v.  McFadden,  180  U.  S. 
533,  45  L.  Ed.  656,  21  S.  Ct.  488;  Bankers 
Mut..  etc.,  Co.  V.  Minneapolis,  etc.,  R.  Co.. 
192  U.  S.  371,  386,  48  L.  Ed.  484,  24  S.  Ct. 
325."  Shulthis  v.  McDougal,  225  U.  S. 
561,  56  L.   Ed.  1205,  32  S.  Ct.  704. 

A  decree  of  a  circuit  court  of  appeals 
is  none  the  less  final  under  the  act  of 
March  3,  1891,  §  6,  upon  the  theory  that 
the  jurisdiction  of  the  circuit  court  de- 
pended upon  diverse  citizenship  alone,  be- 
cause other  grounds  of  jurisdiction  may 
be  inferred  argumentatively  from  the 
statements  in  the  bill.  Shulthis  v.  Mc- 
Dougal, 225  U.  S.  561,  56  L.  Ed.  1205,  32 
S.    Ct.   704. 

Jurisdiction  below  depends  entirely 
upon  diverse  citizenship  within  the  mean- 
ing of  .\ct  March  3,  1891,  c.  517,  §  6,  26 
Stat.  828  fU.  S.  Comp.  St.  1901,  p.  549). 
making  judgments  of  the  circuit  courts  of 
appeals  final  in  such  cases,  where  that  is 
the  only  ground  of  jurisdiction  disclosed 
by  the  complaint,  although  a  federal 
question  may  have  been  raised*  at  the 
trial.  Bagley  7'.  General  Fire,  etc.,  Co., 
212  U.  S.  477,  53  L.  Ed.  605,  29  S.  Ct.  341. 

A  decree  of  a  circuit  court  of  appeals 
affirming  a  decree  of  dismissal  rendered 
hv  a  federal  circuit  court  is  not  review- 
able in  the  federal  supreme  court  where, 
if  the  allegations  which  set  up  diversity 
of  citizenship  were  stricken  from  the  bill, 
the  circuit  court  would  have  had  no  ju- 
risdiction of  the  suit.  Weir  v.  Rountree, 
216  U.  S.  607,  54  L.  Ed.  635,  30  S.  Ct.  418. 

Illustrative  cases. — An  appeal  from  the 
United  States  circuit  court  of  appeals  to 
review  its  decree  affirming  a  decree  of  the 
''ircuit  court  dismissing  the  bill  in  a  suit 
]iy   a    secured    creditor     to     enforce     his 


58 


\'ol.   I. 


APPEAL  AXD  ERROR. 


483-484 


security  as  against  tlie  trustee  in  bank- 
ruptcy, will  be  dismissed  for  want  of  ju- 
risdiction because  the  jurisdiction  of  the 
circuit  court  depended  entirely  on  the 
citizenship  of  the  parties.  Burgoyne  v. 
AIcKillip,  220  U.  S.  604,  55  L.  Ed.  605,  31 
S.  Ct.  718,  citing  First  Nat.  Bank  v.  City 
Council,  215  U.  S.  341,  348,  54  L.  Ed.  223, 
30  S.  Ct.  152;  Rogers  v.  Clark  Iron  Co., 
217  U.   S.  589,  54  L.  Ed.  895,  30  S.   Ct.  693. 

An  appeal  from  the  circuit  court  of  ap- 
peals to  review  its  decree,  affirming  a  de- 
cree of  the  circuit  court  in  a  suit  to  quiet 
title,  will  be  dismissed  for  want  of  ju- 
risdiction. Bryan  z'.  Bliss-Cook  Oak  Co., 
223  U.  S.  705,  56  L-  Ed.  621.  32  S.  Ct.  517, 
citing  Louisville,  etc.,  R.  Co.  v.  Mottley, 
211  U.  S.  149,  53  L.  Ed.  126,  29  S.  Ct.  42; 
Macfadden  v.  United  States,  213  U.  S. 
288.  53  L.  Ed.  801,  29  S.  Ct.  490;  Bryan 
z'.  Layman,  223  U.  S.  706,  56  L.  Ed.  621, 
32  S.  Ct.  517;  Bryan  v.  Bagnell,  223  U.  S. 
706.  56  L.  Ed.  622.  32  S.  Ct.  517;  Rider  v. 
Bliss-Cook  Oak  Co.,  223  U.  S.  706,  56  L. 
Ed.  622,  32  S.  Ct.  518;  Moser  v.  Layman, 
223  U.  S.  707,  56  L.  Ed.  622,  32  S.  Ct.  518. 

An  appeal  from  a  circuit  court  of  ap- 
peals to  review  a  decree  reversing  a  de- 
cree of  the  circuit  court  in  favor  of 
cornplainant,  suing  for  infringement  of  a 
trademark,  and  for  unfair  competition, 
with  directions  to  dismiss  the  bill,  will 
be  dismissed  by  the  supreme  court  for 
want  of  jurisdiction.  Scriven  Co.  v.  Rice- 
Stix  Dry  Goods  Co.,  223  U.  S.  708,  56  L- 
Ed.  622,  32  S.  Ct.  518,  citing  Farrell  z: 
O'Brien.  199  U.  S.  89,  100,  50  L.  Ed.  101, 
25  S.  Ct.  727;  Kaufman  &  Sons  Co.  v. 
Smith,  216  U.  S.  610,  54  L.  Ed.  636,  30  S. 
Ct.  419,  §  6  of  Act  of  March  3.  1891  (26 
Stat,  at  L.  828,  chap.  517,  U.  S.  Comp. 
Stat.  1901,  p.  549).  And  see  Hutchinson, 
etc.,  Co.  V.'  Loewy,  217  U.  S.  457,  54  L. 
Ed.   838.   30   S.   Ct.   613. 

The  decree  of  a  federal  circuit  court, 
entered  pursuant  to  the  mandate  of  a  cir- 
cuit court  of  appeals,  upon  a  petition  to 
enforce  rights  granted  by  a  decree  in  in- 
tervention proceedings  in  a  foreclosure 
suit,  is  not  appealable  to  the  federal  su- 
preme court  where  the  jurisdiction  of  the 
original  foreclosure  suit  was  based  solely 
uoon  diverse  citizenship,  although,  when 
the  case  went  back  from  the  circuit  court 
of  appeals  to  the  circuit  court,  the  latter 
court  authorized  an  amendment  to  the  pe- 
tition, alleging  that  the  decree  ordered 
by  the  circuit  court  of  appeals  failed  to 
give  full  faith  and  credit  to  the  original 
decree  in  the  intervention  proceedings. 
Decree  (1907),  152  F.  849,  81  C.  C.  A. 
643.  modified.  St.  Louis,  etc.,  R.  Co.  v. 
Waba<^h  R.  Co..  217  U.  S.  247,  54  L.  Ed. 
752.  30   S.  Ct.'olO. 

Effect  of  petition  in  intervention. — The 
finality  of  a  decision  of  a  circuit  court  of 
appeals  under  the  act  of  March  3.  1891 
("26  Stat,  at  L.  828.  chap.  517..  U.  S.  Comp. 
Stat.  1901.  p.  550).  §  6.  on  the  theory  that 


diverse  citizenship  was  the  sole  ground 
of  the  jurisdiction  of  the  circuit  court,  is 
not  affected  by  a  petition  in  intervention 
which  was  entertained  and  disposed  of  in 
virtue  of  the  jurisdiction  already  invoked. 
"If  the  decree  is  final  in  respect  of  the 
original  suit,  it  is  equally  so  in  respect 
of  the  intervention.  Rouse  v.  Letcher, 
156  U.  S.  47,  31  L.  Ed.  341,  15  S.  Ct.  266; 
Gregory  v.  Van  Ee,  160  U.  S.  643,  40  L. 
Ed.  566,  16  S.  Ct.  431;  Pope  v.  Louisville, 
etc..  R.  Co.,  173  U.  S.  573,  43  L.  Ed.  814, 
19  S.  Ct.  500;  St.  Louis,  etc.,  R.  Co.  ?7.  Wa- 
bash R.  Co.,  217  U.  S.  247,  54  L.  Ed.  752, 
no  S.  Ct.  510."  Shulthis  V.  McDougal,  225 
U.   S.  561,  56  L.   Ed.  1205,  32   S.   Ct.  704. 

Determination  of  question. — Whether 
the  jurisdiction  of  the  federal  circuit  court 
depended  on  diverse  citizenship  alone, 
within  the  meaning  of  the  act  of  March 
:;.  1891,  §  6,  making  the  decrees  of  the 
circuit  courts  of  appeals  final  in  such 
cases,  or  was  rested  on  other  grounds  as 
well,  must  be  determined  from  the  com- 
plainant's statement  of  his  own  cause  of 
action  as  set  forth  in  the  bill,  without 
regard  to  any  questions  that  might  have 
been  brought  into  the  suit  by  the  answers 
or  in  the  course  of  the  subsequent  pro- 
ceedings. Shulthis  z'.  McDougal,  225  U. 
S.  561,  56  L.  Ed.  1205,  32  S.  Ct.  704,  cit- 
ing Colorado,  etc.,  Min.  Co.  v.  Turck,  150 
U.  S.  138,  37  L.  Ed.  1030,  14  S.  Ct.  35; 
Tennessee  v.  Union,  etc..  Bank,  152  U. 
S.  454,  38  L.  Ed.  511.  14  S.  Ct.  654;  Soen- 
cer  z'.  Duplan  Silk  Co..  191  U.  S.  526'.  48 
L.  Ed.  287,  24  S.  Ct.  174;  Devine  v.  Los 
Angeles,  202  U.  S.  313,  319,  50  L.  Ed. 
1046,    26    S.    Ct.    652. 

483-27.  Where  jurisdiction  rests  on  in- 
dependent grounds. — A  decree  of  a  fed- 
eral circuit  court  of  appeals  which,  on  the 
appeal  authorized  by  the  act  of  March  3, 
1891  (26  Stat,  at  L.  826,  chap.  517,  U.  S. 
Comp.  Stat.  1901,  p.  488),  §  7,  as  amended 
'w  the  act  of  April  14,  1906  (34  Stat,  at 
L.  116,  chap.  1627),  to  review  interlocu- 
tory decrees  of  a  circuit  court  granting 
r'n  injunction,  reversed  such  a  decree  and 
directed  both  that  the  injunction  be  dis- 
solved and  the  bill  dismissed,  is  a  final 
decree,  and  appealable  to  the  federal  su- 
preme court  under  §  6  of  the  former  act. 
where  the  jurisdiction  of  the  circuit  court 
was  invoked  not  solely  upon  the  groimd 
of  diverse  citizenship,  but  also  upon  the 
"■round  that  the  suit  was  one  arising  un- 
f'er  an  act  of  congress,  and  the  requisite 
Jurisdictional  amount  was  involved. 
United  States  Fidelitv.  etc.,  Co.  v.  Brav, 
r?25  U.  S.  205,  56  L.  Ed.  1055,  32  S.  Ct. 
620. 

484-30.  Cases  arising:  under  federal  con- 
stitution and  laws. — The  supreme  court  of 
tli^  LTnited  States  has  jurisdiction  of  an 
appeal  from  the  circuit  court  of  appeals 
in  cases  where  the  jurisdiction  of  the 
circuit  court  is  not  dependent  alone  upon 
the   diversity    of   citizenship,   but    there    is 


59 


484 


APPEAL  AND  ERROR. 


Vol.  I. 


involved  also  the  validity  of  a  state  law 
as  being  in  conflict  v^^ith  the  federal  con- 
stitution or  the  construction  of  a  federal 
statute.  Louisville,  etc.,  R.  Co.  v.  Cook 
Brew.  Co.,  223  U.  S.  70,  56  L.  Ed.  355,  32 
S.  Ct.  189. 

If  the  case  is  one  in  which  the  jurisdic- 
tion of  the  court  below  was  invoked  not 
only  upon  the  grounds  of  diverse  citizen- 
ship, but  upon  grounds  which  involve  al- 
leged infractions  of  the  federal  constitution 
or  rights  secured  thereby,  the  case  is  not 
one  made  final  in  the  circuit  court  of 
appeals  by  the  act  creating  that  couri, 
but  may  be  appealed  to  the  federal  su- 
preme court  if  the  amount  in  controversy 
exceeds  $1,000.  Railroad  Comm.  v. 
Worthington,  225  U.  S.  101,  56  L.  Ed.  1004, 
32  S.  Ct.  653,  citing  Spreckels  Sugar 
Refin.  Co.  v.  McClain,  192  U.  S.  397,  48  L. 
Ed.  496,  24  S.  Ct.  376;  Macfadden  v. 
United  States,  213  U.  S.  288,  53  L-  Ed. 
801,  29  S.  Ct.  490;  Standard  Paint  Co.  v. 
Trinidad,  etc.,  Mfg.  Co.,  220  U.  S.  446,  55 
L.   Ed.  536,  31   S.   Ct.  456. 

An  appeal  from  a  circuit  court  of  ap- 
peals to  the  federal  supreme  court  will 
not  be  dismissed  on  the  ground  that  the 
jurisdiction  of  the  circuit  court  was  in- 
voked solely  on  the  grounds  of  diverse 
citizenship,  where  grounds  of  suit  and  re- 
lief were  also  based  upon  federal  statutes 
which  were  necessary  elements  of  the 
decision  of  the  circuit  court  of  appeals. 
Judgment  (1906),  143  F.  810,  74  C.  C.  A. 
484,  affirmed.  Henningsen  v.  United 
States  Fidelity,  etc.,  Co.,  208  U.  S.  404, 
53   L.    Ed.   547,   28    S.    Ct.   389. 

The  jurisdiction  of  a  federal  circuit 
court  of  a  suit  brought  by  the  receiver  of 
a  railway  company  appointed  in  another 
suit  in  that  court,  by  which  he  seeks  to 
enjoin  the  enforcement  of  an  order  of  a 
state  railroad  '  commission,  regulating 
freight  rates,  as  interfering  with  inter- 
state commerce,  as  depriving  the  owners 
of  the  receivership  estate  of  their  prop- 
erty without  due  process  of  law  and  with- 
out compensation,  and  as  denying  them 
the  equal  protection  of  the  laws,  was  not 
dependent  entirely  upon  diverse  citizen- 
ship, within  the  meaning  of  the  act  of 
March  3,  1891  (26  Stat,  at  L.  828,  chap. 
517,  U.  S.  Comp.  Stat.  1901,  p.  550),  mak- 
ing the  decrees  of  the  circuit  courts  of 
appeals  final  in  such  cases.  Railroad 
Comm.  V.  Worthington,  225  U.  S  101  56 
L.    Ed.    1004,    32    S.    Ct.    653. 

Validity  of  state  regulations  of  inter- 
state commerce.— The  jurisdiction  of  a 
federal  circuit  court  of  a  suit  by  an  In- 
diana corporation  to  enjoin  a  common 
carrier  incorporated  under  the  laws  of 
Kentucky  from  refusing  to  accept  inter- 
state shipments  of  intoxicating  liquors 
consigned  to  local-option  points  in  Ken- 
tucky was  not  dependent  upon  diverse 
citizenship  alone,  so  as  to  make  the  judg- 


ment of  the  circuit  court  of  appeals  final, 
where  there  was  involved  not  only  the 
validity  of  the  Kentucky  statute  as  a 
regulation  of  interstate  commerce,  but  the 
question  as  to  whether  the  sole  remedy 
was  not  by  an  application  to  the  interstate 
commerce  commission.  Louisville,  etc., 
R.  Co.  f.  Cook  Brew.  Co.,  223  U.  S.  70, 
56  L.  Ed.  355,  32  S.  Ct.  189. 

Cases  involving  trade-mark  laws. — The 
issue  of  unfair  competition  must  be  re- 
garded as  open  for  consideration  by  the 
federal  supreme  court,  on  an  appeal  from 
the  circuit  court  of  appeals,  where  there 
was  both  diversity  of  citizenship  and  the 
assertion  of  a  valid  trade-mark  to  give  ju- 
risdiction to  the  circuit  court,  in  view  of 
the  statutory  provision  making  the  judg- 
ments of  circuit  courts  of  appeals  final 
only  where  the  jurisdiction  below  de- 
pended entirely  upon  diversity  of  citizen- 
ship, or  where  the  case  arose  under  the 
patent,  revenue,  criminal,  or  admiralty 
laws.  (1911),  Standard  Paint  Co.  v. 
Trinidad,  etc.,  Mfg.  Co.,  220  U.  S.  446,  55  L. 
Ed.  536.  31  S.  Ct.  456,  affirming  decree 
(1908),  Trinidad  Asphalt  Mfg.  Co.  v. 
Standard  Paint  Co.,  163  Fed.  977,  90  C. 
C.    A.    195. 

A  complaint  invoking  full  faith  and 
credit  for  judgments  of  another  state  does 
not  present  a  case  arising  under  the  fed- 
eral constitution  so  as  to  permit  a  review 
in  the  federal  supreme  court  under  Act 
March  3,  1891,  c.  517,  §  6,  26  Stat.  828  (U. 
S.  Comp.  St.  1901,  p.  549),  of  the  judgment 
of  a  circuit  court  of  appeals,  where  the 
defendant  was  not  a  party  to  the  judg- 
ments, and,  if  bound  by  them,  is  so  bound 
not  by  their  own  operation,  but  by  an  es- 
toppel arising  out  of  the  contract  rela- 
tions between  the  parties  and  notice  to 
defend  the  suits  in  which  the  judgments 
were  rendered,  the  ground  of  the  decision 
of  the  courts  below  being  that  there  was 
no  such  estoppel,  the  decision  turning 
wholly  on  construction  of  the  contract  as 
excluding  liability  over  in  the  event  that 
happened.  Bagley  v.  General  Fire,  etc., 
Co.,  212  U.  S.  477,  53  L.  Ed.  605,  29  S.  Ct. 
341. 

A  question  as  to  the  full  faith  and  credit 
to  be  given  judgments  of  another  state  is 
not  disclosed  so  as  to  permit  a  review  in 
the  federal  supreme  court,  under  Act 
March  3,  1891.  c.  517,  §  6.  26  Stat.  828  (U. 
S.  Comp.  St.  1901,  p.  549),  of  a  judgment 
of  the  circuit  court  of  appeals,  by  a  com- 
plaint in  which  such  judgments  seem  to 
be  referred  to  primarily,  if  not  solely,  as 
fixing  the  amount  of  the  plaintiff's  claim. 
Bagley  r.  General  Fire,  etc..  Co.,  212  U.  S. 
477,  53  L.  Ed.  605,  29  S.  Ct.  341. 

Action  based  upon  safety-appliance  act. 
— An  action  to  recover  damages  for  per- 
sonal injuries,  based  upon  the  federal 
safety-appliance  act,  is  one  in  which  the 
judgment  of  a  circuit  court  of  appeals  may 


60 


Vol.  I. 


APPEAL  AND  ERROR. 


484-488 


of  a  cause  cannot  serve  as  the  basis  for  a  writ  of  error  from  the  federal  su- 
preme court  to  a  circuit  court  of  appeals." ^'^ 

gg.  Cases  Arisitig  under  the  Criminal  Lazvs. — x\  judgment  of  a  circuit  court 
of  appeals  in  a  case  of  which  the  district  court  had  jurisdiction  solely  because 
arising  under  the  criminal  laws  is  bv  the  very  terms  of  Act  March  3,  1891,  c. 
517,  §  6,  26  Stat.  828  (U.  S.  Comp.  St.  1901,  p.  549),  "final,"  and  is  not  review- 
able in  the  federal  supreme  court,  although  constitutional  rights  were  invoked 
by  the  accused,  and  the  case  might  therefore,  under  section  5  of  that  act,  have 
been  brought  directly  from  the  district  court  to  the  supreme  court.^^^ 

hh.  Cases  Arising  under  the  Trademark  Lazvs. — A  final  decree  of  a  circuit 
court  of  appeals  in  a  suit  to  enjoin  the  infringement  of  a  trademark  registered 
under  the  act  of  February  20,  1905  {33  Stat,  at  L.  728,  chap.  592,  U.  S.  Comp. 
Stat.  Supp.  1909,  p.  1283),  can  not  be  reviewed  by  the  federal  supreme  court 
by  appeal,  but  only  upon  certiorari,  in  view  of  §  18  of  that  act,  placing  suits 
brought  under  its  provisions  within  the  scope  of  the  act  of  ■March  3,  1891  (26 
Stat,  at  L.  828,  chap.  517,  U.  S.  Comp.  Stat.  1901,  p.  549),  §  6,  which  makes 
decisions  of  the  circuit  courts  of  appeals  final  "in  all  cases  under  the  patent 
laws,  under  the  revenue  laws,  under  the  criminal  laws,  and  in  admiralty  cases," 
with  power  in  the  supreme  court  to  require  any  such  case  to  be  certified  thereto 
for  review  and  determination,  with  the  same  power  and  authority  in  the  case 
as  if  it  had  been  carried  up  by  appeal  or  writ  of  error.^^'' 


be  reviewed  in  the  federal  supreme  court. 
Chicago  Junction  R.  Co.  v.  King,  222  U. 
S.  222,  56  L.  Ed.  173,  32  S.  Ct.  79. 

Suit  must  really  and  substantially  in- 
volve a  federal  question. — A  suit  involving 
rights  to  land  acquired  under  a  law  of  the 
United  States  does  not  arise  under  that 
law  for  jurisdictional  purposes  unless  it 
really  and  substantially  involves  a  dispute 
or  controversy  respecting  the  validity, 
construction,  or  effect  of  such  law,  upon 
the  determination  of  which  the  result  de- 
pends. Shulthis  v.  McDougal,  225  U.  S. 
561,  56  L.  Ed.  1205,  32  S.  Ct.  704. 

"A  suit  to  enforce  a  right  which  takes 
its  origin  in  the  laws  of  the  ITniced  States 
is  not  necessarily,  or  for  that  reason 
cilone,  one  arising  under  those  laws,  for 
a  suit  does  not  so  arise  unless  it  really 
and  substantially  involves  a  dispute  or 
controversy  respecting  the  validity,  con- 
struction, or  efifect  of  such  a  law,  upon  the 
determination  of  which  the  result  depends. 
This  is  especially  so  of  a  suit  involving 
rights  to  land  acquired  under  a  law  of  the 
United  States.  If  it  were  not,  every  suit 
to  establish  title  to  land  in  the  central 
and  western  states  would  so  arise,  as  all 
titles  in  those  states  are  traceable  back  to 
those  laws.  Gold-Washing,  etc.,  Co.  z'. 
Keyes,  96  U.  S.  199,  24  L.  Ed.  656;  Colo- 
rado, etc.,  Min.  Co.  v.  Turck,  150  U.  S.  138, 
37  L.  Ed.  1030,  14  S.  Ct.  35;  Blackburn 
i:  Portland  Gold  iMin.  Co.,  175  U.  S.  571, 
44  L.  Ed.  276,  20  S.  Ct.  222;  Florida, 
etc.,  R.  Co.  V.  Bell.  176  U.  S.  321. 
44  L.  Ed.  486,  20  S.  Ct.  399;  Shoshone 
Min.  Co.  v.  Rutter,  177  U.  S.  505,  44  L.  Ed. 
864,  20  S.  Ct.  726;  De  Lamar's,  etc.,  Min. 
Co.  V.    Nesbitt,    177  U.  S.    523.  44    L.    Ed. 


872,  20  S.  Ct.  715."  Shulthis  v.  McDougal, 
225  U.  S.  561,  56  L.  Ed.  1205,  32  S.  Ct.  704. 

A  suit  to  determine  conflicting  claims 
to  a  tract  of  land  allotted  to  Creek  In- 
dians can  not  be  said  to  arise  under  the 
federal  statutes  governing  such  allotments, 
so  as  to  permit  an  appeal  to  the  federal 
supreme  court  under  the  act  of  March  3, 
]891,  §  6,  from  a  decree  of  the  circuit 
court  of  appeals,  where  the  bill,  although 
containing  enough  to  indicate  that  those 
statutes  constitute  the  source  of  the  com- 
plainant's title  or  right,  and  that  the  de- 
fendants are  in  some  way  claiming  the 
land,  and  particularly  4he  oil  and  gas 
therein,  adversely  to  him,  makes  no  men- 
tion of  those  statutes  or  of  any  contro- 
versy respecting  their  validity,  construc- 
tion,, or  effect,  and  leaves  the  precise 
nature  of  the  controA-ersy  unstated  and 
uncertain.  Shulthis  v.  McDougal,  225  U. 
S.   561.  56  L.   Ed.  1205,  32   S.   Ct.  704. 

484-31a.  Question  first  advanced  at  trial. 
— Chicago  Junction  R.  Co.  v.  King,  222 
U.  S.  222,  56  L.  Ed.  173,  32  S.  Ct.  79,  af- 
firming judgment  169  Fed.  372,  94  C.  C.  A. 
652,  and  following  Macfadden  v.  United 
States,  213  U.  S.  288,  53  L.  Ed.  801,  29  S- 
Ct.  490. 

488-39a.  Cases  under  the  criminal  laws. 
—Macfadden  v.  United  States,  213  U.  S. 
288,  53  L.  Ed.  801,  29  S.  Ct.  490. 

488-39b.  Cases  under  trade-mark  laws. 
— Hutchinson,  etc..  Co.  z\  Lnewy,  217  U. 
S.  457,  54  L.  Ed.  838,  30  S.  Ct.  613. 

A  final  decree  of  a  circuit  court  of  ap- 
peals in  a  suit  to  enjoin  the  infringement 
of  a  trade-mark  registered  under  .\ct  Feb. 
20,  1905,  c.  592,  33  Stat.  724  (U.  S.  Comp. 
St.   Supp.  1909,  p.   1275\  can   be  reviewed 


61 


489-492 


APPEAL  AND  ERROR. 


Vol.  I. 


(7)  Reversal  or  Affirmance. — Plain  error  alone  will  justify  the  federal  su- 
preme court  in  reversing  a  judgment  of  a  circuit  court  of  appeals  in  a  personal- 
injury  case,  which  is  brought  to  the  supreme  court  solely  on  the  ground  that 
the  defendant  corporation  has  a  chapter   from  the  United   States.42^ 

d.   By  Certiorari — (1)    In  General. — See  note  51. 

(3)    In  What  Cases  the  Writ  May  Issue — aa.    In  General. — See  note  55. 

In  Criminal  Cases. — Certiorari  to  review  a  judgment  of  the  circuit  court 
of  appeals  reversing  a  conviction  below  can  not  be  granted  by  the  federal  su- 
preme court  under  the  authority  given  by  Act  March  3,  1891,  c.  517,  §  6,  26  Stat. 
828  (U.  S.  Comp.  St.  1901,  p.  489)  to  require  the  circuit  courts  of  appeals,  by 
certiorari  or  otherwise,  to  certify  to  the  supreme  court  for  review  any  case 
otherwise  made  final  in  those  courts.^^''  Want  of  power  in  the  federal  supreme 
court  under  the  act  of  March  3,  1891,  §  6,  to  review  by  certiorari  a  judgment 
of  the  circuit  court  of  appeals,  reversing  a  conviction  below,  can  not  be  helped 
out  by  the  act  of  March  2,  1907  (34  Stat,  at  L.  1246,  chap.  2564,  U.  S.  Comp. 
Stat.  Supp.  1907,  p.  209),  providing  for  writs  of  error  on  behalf  of  the  govern- 
ment in  certain  instances  in  criminal  cases,  which,  being  an  innovation  in  crim- 
inal jurisdiction  in  certain  classes  of  prosecutions,  can  not  be  extended  beyond 
its  term.5^'' 

Source  of  Power  to  Issue  Certiorari. — The  power  of  the  supreme  court 
to  issue  certiorari  is  not  limited  to  the  cases  mentioned  in  the  Circuit  Courts  of 
Appeals  Act  (Act  March  3,  1891.  c.  517,  26  Stat.  826  [U.  S.  Comp.  Stat.  1901, 
p.  488]),  but  the  writ  may  issue  in  the  exercise  of  the  power,  under  Rev.  Stat. 
U.  S.,  §  716  (U.  S.  Comp.  Stat.  1901,  p.  580),  to  issue  all  writs  not  specifically 
provided  for  by  the  statute,  which  may  be  necessary  for  the  exercise  of  its 
jurisdiction,  and  agreeable  to  the  usages  and  principles  of  law.^^*^ 


by  the  federal  supreme  court  only  upon 
certiorari  in  view  of  section  18  of  that 
act  placing  suits  brought  under  its  pro- 
visions within  the  scope  of  Act  March  3, 
1891,  c.  517,  §  6,  26  Stat.  828  (U.  S.  Comp. 
St.  1901,  p.  549),  virhich  makes  decisions 
of  the  circuit  court  of  appeals  final  "in  all 
cases  under  patent  laws,  under  the  rev- 
enue laws,  under  the  criminal  laws,  and  in 
admiralty  cases,"  with  power  in  the  su- 
preme court  to  require  any  such  case  to 
be  certified  thereto  for  review,  in  deter- 
mination, with  the  same  power  and  au- 
thority in  the  case  as  if  it  had  been  car- 
ried up  by  appeal  or  writ  of  error.  Hut- 
chinson, etc.,  Co.  7'.  Loewv,  217  U.  S.  457. 
54  L.  Ed.  838,  30  S.  Ct.  613'. 

489-42a.  When  personal  injury  case  will 
be  reversed.— Texas,  etc.,  R.  Co.  v.  How- 
ell, 224  U.  S.  577,  56  L.  Ed.  892,  32  S.  Ct. 
601. 

No  reversible  error  is  committed  in 
leaving  to  the  jury  an  action  for  personal 
injuries  sustained  by  an  employee  from 
a  falling  timber,  while  he'  was  digging  a 
post  hole  under  a  coal  chute  and  other 
employees  were  tearing  up  the  floor  above 
him,  with  instructions  that  if  the  injury 
was  due  to  the  negligence  of  the  master 
in  sending  men  to  work  above  the  em- 
ployee, as  a  contributing  cause,  the  mas- 
ter was  liable,  but  not  if  the  injury  was 
due  only  to  the  negligence  of  fellow  serv- 
ants   in     their   way    of    performing    their 


work.  Texas,  etc.,  R.  Co.  r.  Howell,  224 
U.   S.  577,  56  L.   Ed.  892,  32   S.   Ct.  601. 

490-51.  Adequacy  of  other  remedies. — 
No  power  rests  in  the  supreme  court  to 
allow  a  certiorari  under  the  act  of  1891  in 
a  case  where  there  is  authority  to  review 
the  action  of  the  lower  .court  by  appeal 
or  error.  Title  Guaranty,  etc.,  Co.  z\  Gen- 
eral Elect.  Co.,  222  U.  S.  401,  403,  56  L.  Ed. 
248,  32   S.   Ct.   168. 

491-55.  In  what  cases  the  writ  may  is- 
sue.—"While  the  power  to  grant  this  writ 
(certiorari)  will  be  sparingly  used,  as  has 
been  frequently  declared  by  this  court,  we 
should  be  slow  to  reach  a  conclusion 
which  would  deprive  the  court  of  the 
power  to  issue  the  writ  in  proper  cases 
to  review  the  action  of  the  federal  courts 
inferior  in  jurisdiction  to  this  court."  Mc- 
Clellan  v.  Garland.  217  U.  S.  268,  279,  54 
L.  Ed.  762,  30  S.  Ct.  501.  See,  also,  post, 
CERTIORARI. 

492-59a.  In  criminal  cases. — United 
States  V.  Dickinson,  213  U.  S.  92,  53  L.  Ed. 
711.  29  S.  Ct.  485. 

492-59b.  Act  of  March  2,  1907.— United 
States  f.  Dickinson,  213  U.  S.  92,  53  L.  Ed. 
711,  29  S.  Ct.  485. 

492-59C.  Source  of  power  to  issue  cer- 
tiorari.—AlcClellan  z:  Garland.  217  U.  S. 
2GS.  54  L.   Ed.  762,  30  S.  Ct.   501. 

The  federal  supreme  court  may  issue 
certiorari  to  bring  up  for  review  the  de- 
nial   by  a    circuit    court  of    appeals  of    an 


62 


Vol.  I.  APPEAL  AXD  ERROR.  492-497 

Cases  Involving  Construction  of  Decrees  of  Lower  Courts. — Certiorari 
to  a  federal  circuit  court  of  appeals  should  be  granted  by  the  supreme  court  in  a 
case  in  which  is  involved  the  construction  of  a  prior  decree  of  a  circuit  court, 
affirmed  by  the  supreme  court,  upon  which  depends  the  extent  of  the  use  by  one 
railway  company  of  the  track,  right  of  way,  and  terminal  facilities  of  another, 
as  well  as  the  rights  of  access  by  the  one  company  to  industries  es.tablished 
along  the  line  of  the  other. ^^^^ 

Determination  of  Importance  of  Case. — A  writ  of  certiorari  to  a  circuit 
court  of  appeals,  granted  on  the  application  of  the  United  States,  upon  the 
ground  that  the  decision  below  involved  a  principle  of  far-reaching  importance, 
will  be  dismissed  where  the  federal  supreme  court  is  convinced,  after  final  hear- 
ing, that  the  action  of  the  court  below  did  not  deal  with  that  principle."^^ 

(5)  Reviczv  of  Interlocutory  Orders. — See  note  74.  The  power  of  the  federal 
supreme  court  to  require  a  circuit  court  of  appeals  by  certiorari  to  send  up  for  re- 
view cases  pending  before  the  latter  court  extends  to  a  case  pending  in  that 
court  on  an  appeal  from  a  decree  of  a  circuit  court  entered  pursuant  to  the 
mandate  of  the  circuit  court  of  appeals  on  a  prior  appeal."^^ 

Hearing  and  Determination. — The  federal  supreme  court  will  determine  a 
cause  brought  before  it  by  certiorari  to  a  circuit  court  of  appeals  upon  the 
record  made  in  that  court,  and  certified  to  the  supreme  court."^^ 

(9)  Scope  of  Refiezi'. — The  scope  of  review  on  certiorari  will  not  be 
broadened  to  include  technical  questions  tending  to  delay  the  final  ending  of  an 
action,  the  merits  of  which  are  with  the  respondents.^^*  It  is  undoubted  that 
by  the  operation  of  a  writ  of  certiorari,  granted  in  accordance  with  the  pro- 
visions of  the  Judiciary  Act  of  1891,  the  entire  record  is  before  the  federal 
supreme  court  with  power  to  decide  the  case  as  it  is  presented  to  the  circuit 
court  of  appeals,  by  reason  of  a  writ  of  error  issued  out  of  that  court. ^^"^ 

In  Patent  Cases. — Defenses  of  anticipation  and  want  of  infringement  will 
not  ordinarily  be  passed  upon  by  the  federal  supreme  court  on  certiorari  to  a 

original  application  for  mandamus  to  com-  statutes,  reversed  a  decree  of  a  circuit 
pel  the  judge  of  a  circuit  court  to  proceed  court  granting  a  temporary  injunction  on 
with  and  determine  an  action  pending  be-  a  bill  in  aid  of  an  attempt  to  remove  such 
fore  it,  since  the  power  of  the  supreme  proceedings  from  a  state  court,  and  re- 
court  to  issue  certiorari  is  not  limited  to  manded  the  cause  with  directions  to  pro- 
the  cases  mentioned  in  the  circuit  courts  ceed  in  accordance  with  its  opinion,  must 
of  appeals  act  of  March  3.  1891  (26  Stat.  be  treated,  for  the  purpose  of  testing  the 
at  L.  826,  chap.  517,  U.  S.  Comp.  Stat.  1901,  right  to  a  review  by  certiorari,  as  the 
p.  488),  but  the  writ  may  issue  in  the  exer-  equivalent  of  a  direction  to  enter  a  final 
cise  of  the  power,  under  U.  S.  Rev.  Stat.,  decree  against  the  complainant  for  want 
§  716,  U.  S.  Comp.  Stat.  1901,  p.  580,  to  is-  of  jurisdiction.  Metropolitan  Water  Co. 
sue  all  writs  not  specifically  provided  for  v.  Kaw  Valley,  etc.,  District.  223  U.  S.  519, 
by  the  statute,  which  may  be  necessary  56  L.  Ed.  533.  32  S.  Ct.  246. 
for  the  exercise  of  its  jurisdiction,  and  496-78a.  Cases  pending  on  an  appeal. 
agreeable  to  the  usages  and  prmciples  of  _st  Louis  etc  .  R.  Co  z'  Wabash  R.  Co., 
law.  McClellan  r.  Carland,  217  U.  S.  268,  217  ij.  S.  247,  54  L.  Ed.  752.  30  S.  Ct.  510, 
54  L.  Ed    762    30  S.  Ct.  501.  modifving  152  Fed.  849.  81  C.  C.  A.  643. 

492-59d.       Construction     of      decree     of  „n^ '-«        tt     -•  j    j  *  -^: *;«^ 

i„„,„, ,.      e<-   T  ^       T>    n  \TkT„  496-79a.     Hearmg   and   determmation. — 

lower  court. — St.  Louis,  etc..  R.  Co.  7'.  Wa-  at   r-i   n  n     1       ]    oi~  t-    c    .tco    -<  t 

bash   R.  Co.,  217  U.   S.  247,  54  L.   Ed.  752,  l^f}'o''^'%  S.^"'""?-  ~''    ^^   ^^  ~^^-  '^  ^■ 

30S.  Ct.  510.  Ed.   .62,  .30  S.  Ct.  dOI. 

492-59e.      Determination    of   importance  497-88a.     Scope    of     review.— Judgment 

of  case.— United   States  r.   Rimer.  220  U.  C^-  C  A.  1908)  Thomas  f.  Green  County, 

S.  547,  55  L.  Ed.  578,  31  S.  Ct.  596.  159    F.    339,    affirmed.     Green    County    v. 

495-74.     Review  of  interlocutory  orders.  Thomas,  211  U.  S.  598,  53  L.  Ed.  343,  29 

— A  judgment  of  a  circuic  court  of  appeals  S.   Ct.  168. 

which,  being  of  the  opinion  that  condem-  497-88b.     Entire  record  is  before  court. 

nation   proceedings   did    not   amount   to   a  — Lutclier.  etc..  Lumber  Co.  z\  Knight,  217 

"suit"'  within  the  meaning  of  the  removal  U.  S.  257,  267,  54  L.  Ed.  757,  30  S.  Ct.  505. 

63 


497-499  APPEAL  AND  ERROR.  Vol.  I. 

circuit  court  of  appeals,  to  review  an  order  granting  a  preliminary  injunction 
in  a  patent  suit.^^*^ 

An  objection  to  the  sufficiency  of  an  indictment  will  not  be  consid- 
ered by  the  federal  supreme  court  on  certiorari,  although  the  grounds  of  the 
demurrer  and  the  general  language  of  the  exceptions  taken  on  the  trial  are 
broad  enough  to  embrace  such  objection,  where  the  conduct  of  counsel  for  the 
accused  in  the  courts  below  is  wholly  inconsistent  with  any  intention  to  rely 
upon  such  objection,  and  the  point  was  not  referred  to  in  the  petition  for  writ 
of  certiorari,  or  in  the  brief  submitted  in  support  of  that  petition-S^** 

Review  of  Questions  of  Fact. — Whether  or  not  the  inventions  covered  by 
the  claims  of  the  patent  in  suit  were  exhibited  in  an  expired  foreign  patent  will 
not  be  considered  by  the  federal  supreme  court  on  certiorari  to  a  circuit  court 
of  appeals,  to  review  an  order  granting  a  preliminary  injunction,  where  the 
question  is  largely  one  of  fact,  and  pertains  rather  to  the  evidence  than  to  a 
construction  of  the  patents.^^® 

(9^)  Affirmance. — Where  the  circuit  court  of  appeals  reverses  a  judgment 
of  the  trial  court  and  the  supreme  court  on  certiorari  reverses  the  circuit  court 
of  appeals,  if  no  error  of  law  has  been  committed  by  the  trial  court,  its  judg- 
ment will  be  affirmed. ^^^ 

(10)  Rendering  and  Ordering  Final  Judgment. — Upon  a  writ  of  certiorari 
to  review  a  judgment  of  the  circuit  court  of  appeals  the  supreme  court  has  the 
entire  record  before  it,  with  the  power  to  review  the  action  of  that  court  as  well 
■as  direct  such  a  disposition  of  the  case  as  that  court  might  have  done  when 
hearing  the  writ  of  error  sued  out  for  the  review  of  the  action  of  the  circuit 
court.  Accordingly,  if  the  judgment  of  the  circuit  court  of  appeals  is  reversed 
and  the  supreme  court,  upon  looking  further  into  the  record  from  the  trial 
court,  finds  that  no  error  w^as  committed  by  that  court,  the  judgment  of  the 
latter  court  will  be  affirmed. ^^^ 

4.  Over  Courts  oe  the  District  of  Columbia. — See  post,  "Weight  and  Suf- 
ficiency of  Evidence,"  IV,  E,  7. 

a.  Right  to  Appellate  Review. — The  Judicial  Code  of  March  3,  1911,  ch. 
231,  36  Stat,  at  L.  1087,  made  substantial  changes  in  the  right  of  appeal  to  the 
federal  supreme  court  from  the  court  of  appeals  of  the  District  of  Columbia.^'''* 
By  §  250  of  the  New  Judicial  Code  (act  of  March  3,  1911,  ch.  231,  36  Stat,  at 
L.  1087,  U.  S.  Comp.  Stat.  Supp.  1911,  p.  128),  any  final  judgment  of  the  court 
of  appeals  of  the  District  of  Columbia  may  be  re-examined  in  cases  in  which 
the  construction  of  any  law  of  the  United  States  is  drawn  in  question  by  the 

497-88C.  In  patent  cases. — Leeds,  etc.,  action  against  a  carrier  to  recover  dam- 
Co.  V.  Victor,  etc.,  Mach.  Co.,  213  U.  S.  ages  for  personal  injuries  alleged  to  have 
301,  53  L.  Ed.  805,  29  S.  Ct.  495.  been    cnused   by   its    negligence,    furnishes 

497-88d.      Sufficiency     of     indictment. —  no  reason  for  disturbing  the  judgment  of 

Judgment  CC.  C.  A.  1907)  155  F.  945,  84  C.  the  trial  court,  v^rhere  no  error  of  law  ap- 

C.  A.  93,  affirmed.     Great  Northern  R.  Co.  pears    to    have    been    committed  in    that 

T.  United  States,  208  U.  S.  452,  52  L.  Ed.  court  to  the  prejudice  of  the  carrier.  Delk 

567,  28  S.  Ct.  313.  v.  St.  Louis,  etc.,  R.  Co..-  220  U.  S.  580,  55 

497-88e.  Questions  of  fact.— Leeds,  etc.,  U  Ed.  590,  31  S.  Ct.  617. 
Co.  V.    Victor,    etc.,    Mach.    Co.,  213    U.  S.  497-89a.    Rendering    and    ordering    final 

301,  53  L.  Ed.  805,  29  S.  Ct.  495.  judgment.— Delk  r.  St.  Louis,  etc.,  R.  Co., 

497-88f.    Affirmance.— Delk  v.  St.  Louis,  220  U.  S.  580,  55  L.  Ed.  590,  31  S.  Ct.  617, 

etc..   R.   Co.,  220  U.  S.  580,  55  L.  Ed.  590,  reversing  judgment   (1908)   St.  Louis  &  S. 

31  S.  Ct.  617.  F.  R.  Co.  V.  Delk,  158  F.  931,  86  C.  C.  A. 

A  reversal  on  certiorari  for  error  in  con-  ^5,  14  A.  &  E.  Cas.  233. 
struing  the  safety  appliance  act  of  March  499-97a.      Code   of   March   3,   1911.— See 

2,  1893,  of  the  judgment  of  a  circuit  court  Washington     Home     v.      American,     etc., 

of  appeals  reversing  a  judgment  of  a  cir-  Trust  Co.,  224  U.  S.  486,  56  L.  Ed.  854,  32 

cuit  court  in  favor  of  an  employee  in  an  S.  Ct.  554. 

64 


Vol.  I. 


APPEAL  AND  ERROR. 


499-506 


defendant,^"''  and  in  cases  involving  the  constitutionality  of  any  law  of  the 
United  States.^''^ 

b.   What  Lazu  Governs — (1)    In  General. — See  note  98. 

d.  Decisions  Reviezvable — (2)  Necessity  for  Finality  of  Judgments  and  De- 
crees.— See  note  22. 

(3)  Stimmary  and  Special  Proceedings. — In  proceedings  to  condemn  land 
under  the  acts  of  Congress  relating  to  the  elimination  of  grade  crossings  and 
providing  for  a  union  station  (31  Stat.  767,  c.  353,  31  Stat.  775,  c.  354,  and 
32  Stat.  909,  c.  856),  the  supreme  court  has  power  to  review  the  final  order  of 
the  court  of  appeals  of  the  District  of  Columbia  confirming  the  award  of  the 
appraisers. 26a 

5.  Over  Court  of  Claims — a.  In  General. — The  general  rules  governing  the 
subject  of  prosecuting  error  or  taking  appeals  from  final  judgments  or  decrees 
is  applicable  to  judgments  or  decrees  of  the  court  of  claims. ^^'^ 


499-97b.     3250  of  New  Judicial  Code.— 

American,  etc..  Trust  Co.  z\  Commission- 
ers, 224  U.  S.  491,  50  L.  Ed.  856,  32  S.  Ct. 
553. 

Congressional  enactments  having  gen- 
eral application  throughout  the  United 
States,  and  not  the  purely  local  laws  of 
the  District  of  Columbia,  are  what  are 
meant  by  the  provision  of  the  Federal  Ju- 
dicial Code,  §  250,  for  the  appellate  review 
in  the  federal  supreme  court  of  judgments 
and  decrees  of  the  court  of  appeals  of  the 
district  in  cases  in  which  the  construction 
of  "any  law  of  the  United  States"  is  drawn 
in  question  by  the  defendant.  American, 
etc..  Trust  Co.  z'.  Commissioners,  224  U. 
S.  491,  56  L.  Ed.  856,  32  S.  Ct.  553. 

499-970.  Constitutionality  of  any  law 
of  the  United  States. — American,  etc.. 
Trust  Co.  V.  Commissioners,  224  U.  S. 
491,  56  L.  Ed.  856,  32  S.  Ct.  553. 

499-98.  Law  regulating  appeals  from 
circuit  court  governs. — The  act  of  Febru- 
ary 9,  1893,  ch.  74,  §  8,  27  Stat,  at  Large, 
436,  concerning  writs  of  error  and  appeals 
from  the  court  of  appeals  of  the  District 
of  Columbia,  provides  that  they  shall  be 
allowed  in  the  "same  manner  and  under 
the  same  regulations  as  heretofore  pro- 
vided for  in  cases  of  writs  of  error  on  judg- 
ments or  appeals  from  decrees  rendered  in 
the  supreme  court  of  the  District  of  Co- 
lumbia." The  procedure  referred  to  is 
that  found  in  §  705,  Rev.  Stat.,  which  pro- 
vides that  such  writs  or  appeals  shall  be 
allowed  in  the  "same  manner  and  under 
the  same  regulations  as  are  provided  in 
cases  of  writs  of  error  on  judgments  or 
appeals  from  decrees  rendered  in  a  circuit 
court."  Columbia  Heights  Realty  Co.  f. 
Rudolph,  217  U.  S.  547,"551,  54  L.  Ed.  877, 
30  S.  Ct.  581. 

504-22.  Decision  of  commissioner  of  pat- 
ents.— A  decision  of  the  court  of  appeals  of 
the  District  of  Columbia  on  an  appeal 
from  a  decision  of  the  commissioner  of 
patents  in  proceedings  under  application 
made  pursuant  to  Act  Feb.  20,  1905,  c.  592, 

12   U   S   Enc— 5  65 


§  1,  33  Stat.  724  (U.  S.  Comp.  St.  Supp. 
1907,  p.  1008),  for  the  registration  of  a 
trade-mark,  which  affirms  the  latter's  de- 
cision, and  directs  the  clerk  to  certify  its 
opinion  to  the  commissioner,  according  to 
law,  is  not  final  for  the  purpose  of  an  ap- 
peal to,  or  writ  of  error  from,  the  federal 
supreme  court,  since  the  proceedings  un- 
der that  act  are  governed  by  the  same 
rules  of  practice  and  procedure  as  in  pat- 
ent cases.  Atkins  &  Co.  v.  Moore,  212  U. 
S.  285,  53   L.   Ed.  515,  29   S.   Ct.  390. 

A  judgment  of  the  court  of  appeals  of 
the  District  of  Columbia,  affirming  the  de- 
cision of  the  commissioner  of  patents  in 
an  interference  proceeding,  and  directing 
that  its  own  decision  be  certified  to  the 
commissioner,  as  required  by  law,  is  not 
final  for  the  purpose  of  a  writ  of  error 
from  the  federal  supreme  court.  John- 
son V.  Mueser,  212  U.  S.  283,  53  L.  Ed. 
514,  29  S.  Ct.  390. 

A  decree  of  the  court  of  appeals  of  the 
District  of  Columbia  on  an  appeal  from 
the  commissioner  of  patents,  which  af- 
firms the  latter's  decision  and  directs  the 
clerk  of  the  court  to  "certify  this  opinion 
and  proceedings  in  this  court  in  the 
premises  to  the  commissioner  of  patents, 
according  to  law,"  is  not  "final"  within 
the  meaning  of  Act  February  9,  1893  (27 
Stat.  436,  c.  74,  U.  S.  Comp.  St.  1901,  p. 
573),  §  8,  defining  the  appellate  jurisdic- 
tion of  the  federal  supreme  court,  since 
under  Rev.  St.  U.  S.,  §§  4914,  4915  (U.  S. 
Comp.  St.  1901,  p.  3392).  decisions  on  such 
appeals  do  not  preclude  any  person  in- 
terested from  contesting  the  validity  of 
the  patent  in  court,  and  a  remedy  by  bill 
in  equity  is  given  where  a  patent  is  re- 
fused. Frasch  r.  Moore,  211  U.  S.  1.  53 
L.  Ed.  65,  29  S.  Ct.  6. 

504-26a.  Summary  and  special  proceed- 
ings.— Winslow  r.  Baltimore,  etc..  R.  Co., 
208  U.  S.  59,  52  L.  Ed.  388,  28  S.  Ct.  190. 

506-34a.  General  rules  applicable. — 
United  States  ::  Ellicntt.  223  U.  S.  524,  56 
L.  Ed.  535,  32   S.  Ct.  334. 


511-522 


APPEAL  AND  ERROR. 


Vol.  I. 


f.  Decisions  Reviewable — (3)  Jurisdiction  as  Dependent  upon  Nature  and 
Form  of  Judgment — bb.  Decision  Must  Be  Judicial  in  Its  Nature. — See  note  57. 

h.  Review  of  Findings  on  Questions  of  Fact—{\)  In  General— See  note  87. 

j.    Transfer  of  Cause — (4)     The  Record. — See  note  11. 

The  record  on  cross-appeals  from  an  award  by  the  Court  of  Claims  under 
a  contract  for  a  public  work  will  be  remanded  for  correction,  where  the  court 
failed  to  make  an  explicit  finding  as  to  the  knowledge  and  good  faith  of  the 
government  inspector  whose  action  is  alleged  to  have  impeded  greatly  the 
progress  of  the  work,  to  the  claimant's  injury,  or  to  find  as  a  fact  whether  or 
not  complaint  of  the  inspector's  action  was  made  by  the  claimant  to  a  superior 
officer,  and,  if  made,  as  to  the  date  of  such  complaint,  and  the  action  taken 
upon  it.^^^ 

6.  Over  Territorial  Courts — a.  In  General. — See  note  29. 


511-57.  Decision  must  be  judicial  in  its 
nature. — The  pendency  in  the  courts  of 
the  District  of  Columbia  of  suits  to  enjoin 
the  secretary  of  the  interior  from  carrying 
into  effect  certain  congressional  legisla- 
tion when  congress  attempted,  by  the  act 
of  March  1,  1907,  to  confer  jurisdiction 
upon  the  court  of  claims,  and,  by  appeal, 
upon  the  federal  supreme  court,  of  suits 
against  the  United  States,  to  be  brought 
by  the  petitioners  in  the  then  pending 
litigation,  to  determine  the  validity  of  such 
legislation,  does  not  remove  the  objection 
that  action  not  judicial  in  its  nature  within 
the  meaning  of  the  federal  constitution 
was  thereby  required  of  the  supreme  court. 
Muskrat  v.  United  States,  219  U.  S.  346,  55 
L.  Ed.  246,  31  S.  Ct.  250. 

Congress  could  not,  as  was  attempted  by 
the  act  of  March  1,  1907  (34  Stat,  at  L. 
1015,  chap.  2285),  confer  jurisdiction  upon 
the  court  of  claims,  and,  by  appeal,  upon 
the  federal  supreme  court,  of  suits  against 
the  United  States,  to  be  brought  by  cer- 
tain named  Cherokee  Indians,  for  them- 
selves and  all  others  similarly  situated,  to 
determine  the  A^alidity  of  acts  of  congress 
passed  since  the  act  of  July  1,  1902  (32 
Stat,  at  L.  716,  chap.  1375),  so  far  as  such 
acts  purport  to  increase  or  extend  the 
restrictions  upon  alienation,  encumbrance, 
or  the  right  to  lease  the  allotments  of  lands 
of  Cherokee  citizens,  or  to  increase  the 
number  of  persons  entitled  to  share  in  the 
final  distribution  of  the  Cherokee  lands 
and  funds,  since  this  is  nothing  more  than 
an  attempt  to  provide  for  a  final  judicial 
determination  in  the  supreme  court  of  the 
constitutional  validity  of  congressional 
legislation,  without  a  "case"  or  "contro- 
versy" to  which,  under  the  federal  con- 
stitution, the  judicial  power  alone  extends. 
Muskrat  v.  United  States,  219  U.  S.  346, 
55  L.  Ed.  246,  31  S.  Ct.  250. 

516-87.  Review  of  findings  on  questions 
of  fact. — The  refusal  of  the  court  of  claims 
to  make  an  allowance  for  the  transporta- 
tion from  the  Philippine  Islands  to  Spain, 
under  a  contract  with  the  United  States, 
of  certain  Spanish  prisoners  of  war,  cer- 
tified by  an  American  consul  to  have  been 


landed  in  a  Spanish  port,  will  not  be  dis- 
turbed on  appeal  where  the  method  pre- 
scribed by  tile  contract  for  determining 
the  initial  fact  that  such  persons  had  been 
taken  on  board  in  the  Philippine  Islands 
had  not  been  pursued,  and  the  evidence 
did  not  establish  to  the  satisfaction  of  that 
court  that  such  persons  were  entitled  to 
transportation  under  the  contract.  Judg- 
ment (1907),  J.  M.  Ceballos  v.  United 
Stales,  42  Ct.  CI.  318,  reversed.  Ceballos 
&  Co.  V.  United  States,  214  U.  S.  47,  53 
L.   Ed.  904,  29  S.  Ct.  583. 

A  finding  of  the  court  of  claims  upon 
the  question  of  the  compensation  to  be 
paid  by  the  United  States  for  its  use  of  a 
patent,  to  which  finding  there  was  no  ob- 
jection taken  nor  exception  reserved,  is 
conclusive  on  the  federal  supreme  court, 
being  in  the  nature  of  a  special  verdict  of 
the  jury.  United  States  v.  Societe 
Anonyme,  etc.,  Cail,  224  U.  S.  309,  56  L. 
Ed.   778,   32   S.    Ct.   479. 

520-11.  Record. — A  case  will  not  be  re- 
manded to  the  court  of  claims  on  a  mo- 
tion which  in  effect  calls  for  the  certifica- 
tion of  the  evidence  and  not  the  court's 
conclusions  from  the  evidence,  since  this 
would  contravene  a  rule  of  the  federal  su- 
preme court  which  requires  the  record  on 
an  appeal  from  the  court  of  claims  to  con- 
tain a  finding  "of  the  facts  in  the  case 
established  by  the  evidence  in  the  nature 
of  a  special  verdict,  but  not  the  evidence 
establishing  it."  United  States  v.  Societe 
Anonyme,  ^etc.  Cail.  224  U.  S.  309,  56  L. 
Ed.   778,  32   S.   Ct.  479. 

520-lla.  Record  on  cross  appeals. — 
Ripley  v.  United  States,  220  U.  S.  491, 
55  L.  Ed.  557,  31  S.  Ct.  478,  remaining 
record  for  additional  findings  in  45  Ct. 
CI.   621. 

522-29.  As  the  power  of  the  federal  su- 
preme court  to  review  depends  upon  the 
acts  of  congress,  which  it  is  bej^ond  the 
authority  of  a  territory  by  forms  of  legal 
procedure  to  modif}'  or  change,  it  results 
that  whatever  may  be  the  forms  of  proce- 
dure prevailing  in  the  territory  for  the 
review  of  judgments  or  decrees,  nothing 
in    the    territorial    laws    or    procedure    can 


66 


A'ol.  I. 


APPEAL  AND  ERROR. 


523-528 


b.  Under  Circuit  Court  of  Appeals  Act. — See  note  31. 

c.  Over  the  Indian    Territory. — See  note  46. 

d.  Over  Territory  of  Hazcaii. — See  notes  54,  37,  58. 


have  the  effect  of  conferring  upon  the 
supreme  court  appellate  powers  not  given 
bv  congress.  Cotton  v.  Hawaii,  211  U.  S. 
1G2,  170,  53   L.   Ed.  131.  29   S.   Ct.  85. 

523-31.  Under  circuit  court  of  appeals 
act. — The  judgment  of  a  territorial  su- 
preme court  for  the  recovery  of  fees  by 
a  de  jure  officer  from  a  de  facto  one  is 
not  reviewable  in  the  federal  supreme 
court,  as  involving  the  validity  of  an  au- 
thority exercised  under  the  United  States 
in  the  passage  of  the  territorial  legisla- 
tion from  which  it  was  contended  that  the 
right  to  the  fees  was  derived,  where  the 
decision  was  rested  in  fact  upon  the  con- 
struction of  the  statute,  and  not  upon  the 
want  of  power  of  the  territorial  legisla- 
ture to  pass  them.  Albright  z:.  Sandoval, 
No.  2.  216  U.  S.  342,  54  L.  Ed.  509,  30  S. 
Ct.   321. 

526-46.  Act  of  March  1,  1895.— The  ab- 
sence of  any  specific  reference  to  the  fed- 
eral sypreme  court  in  the  provisions  of 
Act  March  1.  1895,  c.  145.  §  11,  28  Stat. 
698,  and  Act  March  3,  1905,  c.  1479.  §  12, 
33  Stat.  1081  (U.  S.  Comp.  St.  Supp.  1907, 
p.  208),  for  an  appellate  review  in  the  cir- 
cuit court  of  appeals  for  the  eighth  circuit 
of  the  final  decisions  of  the  court  of  ap- 
peals in  the  Indian  Territory  in  the  same 
manner  as  decisions  of  the  circuit  courts, 
precludes  any  further  review  in  the  su- 
preme court  by  appeal  from  or  writ  of 
error  to  the  circuit  court  of  appeals. 
Laurel  Oil.  etc..  Co.  v.  Morrison,  212  U. 
S.  291,  53  L.   Ed.   517,  29   S.   Ct.  394. 

Full  appellate  jurisdiction  over  the  final 
decisions  of  the  court  of  appeals  in  the 
Indian  Territory  was  conferred  upon  the 
circuit  court  of  appeals  for  the  eighth  cir- 
cuit by  the  provisions  of  Act  March  1, 
1895,  c.  145,  §  11,  28  Stat.  698.  that  "writs 
of  errors  and  appeals  from  the  final  de- 
cision of  said  appellate  court  shall  be 
allowed  and  may  be  taken  to  the  circuit 
court  of  appeals  for  the  eighth  judicial 
circuit  in  the  same  manner  and  under  the 
same  regulations  as  appeals  are  taken 
from  the  circuit  courts,"  and  such  juris- 
diction is  not  in  any  way  measured  or 
limited  by  the  jurisdiction  on  appeal  from 
or  error  to  the  district  or  circuit  courts. 
Laurel  Oil,  etc.,  Co.  v.  Morrison,  212  U. 
S.  291,  53  L.  Ed.  517,  29  S.  Ct.  394. 

527-54.  Source  of  jurisdiction. — "Our 
authority  to  review  the  judgments  of  the 
supreme  court  of  the  Territory  of  Hawaii 
is  derived  from  the  act  of  April  30.  1900, 
c.  339.  §  86,  31  Stat.  141,  158,  and  the 
amendatory  act  of  March  3,  1905,  c.  1465, 
§  .3,  33  Stat.  1035.  In  the  first  act  juris- 
diction   is    conferred    over    judgments    or 


decrees  of  the  supreme  court  of  the  Ter- 
ritory only  in  cases  like  unto  those  where 
we  would  be  empowered  to  review  the 
judgments  or  decrees  of  the  several 
states,  conferred  by  §  709,  Rev.  Stat.  By 
the  amendatory  act  our  jurisdiction  was 
extended  so  as  to  embrace,  in  addition,  all 
cases,  irrespective  of  the  nature  of  the 
questions  presented,  where  the  amount  in- 
volved, exclusive  of  costs,  exceeds  the 
sum  or  value  of  five  thousand  dollars.  In 
other  words,  whilst  the  first  act  conferred 
the  power  only  in  cases  where  it  would 
exist  if  the  decree  or  judgment  had  been 
rendered  in  a  state  court,  the  second, 
adopting  the  principle  and  necessarily 
therefore  carrj'ing  with  it  the  rules  gen- 
erally prevailing  as  to  the  review  of  judg- 
ments or  decrees  of  the  supreme  courts 
of  the  incorporated  territories  of  the 
United  States,  gives  an  additional  right  to 
review,  depending  solelj^  upon  the  amount 
iuA'olved."  Cotton  v.  Hawaii,  211  U.  S. 
162,   169,  53   L.   Ed.  131,  29  S.   Ct.   85. 

527-57.  Amount  in  controversy. — A 
writ  of  error  from  the  supreme  court  of 
the  United  States  to  the  Hawaiian  supreme 
court,  to  review  v.  judgment  sustaining  an 
assessment  for  taxation,  will  not  lie  under 
Act  March  3,  1905,  c.  1465,  §  3,  33  Stat. 
1035,  where  the  amount  of  the  tax  as- 
sessed is  less  than  the  jurisdictional 
amount  prescribed  by  that  section.  Hono- 
lulu, etc.,  Land  Co.  v.  Wilder,  211  U.  S. 
144,  53  L.  Ed.  124,  29  S.  Ct.  46. 

A  writ  of  error  to  review  a  judgment 
of  the  supreme  court  of  Hawaii  in  eject- 
ment will  not  be  dismissed  because  the 
value  of  the  land  is  less  than  $5,000,  where 
the  contrary  sufficiently  appears  by  affi- 
davits in  the  record  and  in  the  federal  su- 
preme court.  Spreckels  v.  Brown,  212  U. 
S.   208,   53    L.    Ed.   476,  29   S.    Ct.   256. 

Owners  of  real  property  are  not  es- 
topped by  their  tax  returns  under  oath, 
valuing  it  at  less  than  $5,000,  from  assert- 
ing that  such  property  has  that  value,  to 
sustain  the  jurisdiction  of  the  federal  su- 
preme court  of  a  writ  of  error  to  review  a 
judgment  of  the  Hawaiian  supreme  court 
in  ejectment.  Spreckels  v.  Brown,  212  U. 
S.  208,  53   L.   Ed.  476,  29  S.   Ct.  256. 

528-58.  Retrospective  operation  of  stat- 
ute.— A  judgment  of  the  Hawaiian  su- 
preme court  did  not  become  final  before 
the  enactment  of  Act  March  3,  1905,  c. 
]465,  33  Stat.  1035,  and  hence  not  review- 
able in  the  federal  supreme  court  under 
that  act,  where,  although  tlie  opinion  was 
filed  prior  to  that  enactment,  a  petition 
for  rehearing  was  duly  filed  and  enter- 
tained  by  the   court,   and  was  not  denied 


67 


529-535 


APPEAL  AND  ERROR. 


Vol.  I. 


f.  Over  Particular  Proceedings — (1)   ///  Criminal  Cases. — See  note  67. 

h.  Assignment  of  Errors. — The  failure  of  the  record  to  show  that  any  federal 
question  was  raised  or  suggested  before  the  assignment  of  error  in  the  federal 
supreme  court  precludes  the  maintenance  of  a  writ  of  error  from  that  court 
under  Act  April  30,  1900,  c.  339,  §  86,  31  Stat.  141,  to  review  a  judgment  of 
the  Hawaiian  Supreme  Court.^^'' 

i.  Scope  and  Extent  of  Revieiv — (1)  In  General. — The  entire  case  is  open 
for  the  consideration  of  the  federal  supreme  court  on  a  writ  of  error  to  a  ter- 
ritorial supreme  court,  to  review  a  judgment  of  that  court,  which,  on  a  second 
writ  of  error,  affirmed  a  judgment  below,  entered  pursuant  to  its  mandate, 
issued  on  the  first  writ  of  error.^'^a  Errors  assigned  in  the  supreme  court  of  a 
territory,  but  passed  by  it  without  decision,  are  open  for  review  in  the  federal 
supreme  court  on  writ  of  error,  if  that  court  finds  that  the  former  court  erred 
in  reversing  the  judgment  of  the  trial  court  upon  the  single  error  considered. ^^'^ 

(2)    Necessity  for  Finality  of  Decision. — See  note  98. 


until  after  the  passage  of  such  statute. 
Bierce  v.  Waterhouse,  219  U.  S.  320,  55  L- 
Ed.  237,  31   S.   Ct.  241. 

Where  the  merits  of  the  case  had  been 
finally  determined  by  the  supreme  court 
of  Hawaii  before  passage  of  the  act  ex- 
tending the  jurisdiction  here  to  review 
cases  from  that  court  involving  over 
$5,000,  no  jurisdiction.  Notley  v.  Brown, 
212  U.   S.  570,  53  L.  Ed.  655,  29  S.   Ct.  692. 

Jurisdiction  of  a  writ  of  error  directed, 
on  its  face,  to  a  supposed  judgment  of  the 
supreme  court  of  the  territory  of  Hawaii, 
disposing  of  exceptions  on  nonfederal 
grounds  prior  to  Act  March  3,  1905,  c. 
1465,  33  Stat.  1035,  enlarging  the  appellate 
jurisdiction  of  the  federal  supreme  court 
over  the  territorial  court,  can  not  be 
taken  by  treating  the  writ  as  addressed 
to  a  later  judgment  of  that  court,  quash- 
ing a  writ  of  error  to  the  trial  court,  which 
judgment  was  not  formally  entered  until 
long  after  the  writ  of  error  from  the  fed- 
eral supreme  court  was  sued  out,  where  to 
regard  the  entry  as  relating  back  to  the 
time  when  the  opinion  of  the  court  was 
announced  would,  if  the  same  rule  be  ap- 
plied to  the  nunc  pro  tunc  entry  of  the 
judgment  of  the  trial  court,  require  an  af- 
firmance of  the  judgment  of  the  territorial 
supreme  court  on  the  ground  that  the  writ 
of  error  to  the  trial  court  was  not  sued  out 
in  time.  Notley  v.  Brown,  208  U.  S.  429, 
52  L.   Ed.  559,  28   S.   Ct.  385. 

A  writ  of  error  directed,  on  its  face,  to 
the  supposed  judgment  of  the  supreme 
court  of  the  tenitory  of  Hawaii,  disposing 
of  exceptions  on  nonfederal  grounds, 
prior  to  Act  March  3,  1905,  c.  1465,  33 
Stat.  1035,  enlarging  the  appellate  juris- 
diction of  the  federal  supreme  court  over 
the  territorial  court,  can  not  be  sustained 
on  the  theory  that  a  final  judgment  in  the 
case  was  not  rendered  until  after  the  pas- 
sage of  that  act,  when  judgment  on  the 
verdict  was  entered  in  the  trial  court  in 
connection  with  a  nunc  pro  tunc  entry, 
since  such  judgment  must  necessarily  have 
been  entered  after  the  judgment  which  the 


writ  seeks  to  review.  Notlev  y.  Brown, 
208  U.   S.  429,  52  L.   Ed.  559,  28   S.   Ct.  385. 

529-67.  In  criminal  cases. — "We  have  no 
authority  to  review  the  action  of  the  su- 
preme court  of  a  territory  of  the  United 
States  in  a  criminal  case  like  this  [em- 
bezzlement]. (Amado  v.  United  States, 
195  U.  S.  172,  49  L.  Ed.  145.)"  Kent  v.  Porto 
Rico,  207  U.  S.  113,  52  L.  Ed.  127,  28  S. 
Ct.  55. 

534-95a.  Assignment  of  errors. — Hono- 
lulu, etc..  Land  Co.  v.  Wilder,  211  U.  S. 
144,   53    L.    Ed.    124,   29    S.    Ct.    46. 

534-96a.  Scope  of  review. — Bierce  v. 
Waterhouse,  219  U.  S.  320,  55  L.  Ed.  237, 
31    S.    Ct.   241. 

534-96b.  Errors  passed  by  without  de- 
cision.— Bierce  %'.  Waterhouse,  219  U.  S. 
320,   55    L.   Ed.   237,   31   S.   Ct.   241. 

535-98.  Finality  of  decision. — It  is  ele- 
mentary, however,  that  the  power  to  re- 
view judgments  of  the  supreme  court  of 
Hawaii  under  §  709,  Rev.  Stat.,  and  under 
the  laws  governing  the  right  to  review  the 
judgments  or  decrees  of  the  supreme 
courts  of  the  incorporated  territories  gen- 
erally, extends  only  to  final  judgments  or 
decrees.  Cotton  v.  Hawaii,  211  U.  S.  162, 
170,  53  L.   Ed.   131,  29  S.   Ct.  85. 

There  is  no  final  judgment  below  to 
sustain  an  appeal  to  the  federal  supreme 
court  from  the  supreme  court  of  the  ter- 
ritory of  Hawaii  in  a  case  in  which  the 
latter  court  has  pursued  the  usual  course 
upon  exceptions,  and  has  not  entered  or 
directed  a  judgment.  Hutchins  v.  Bierce, 
211  U.  S.  429,  53  L.  Ed.  267,  29  S.  Ct.  122. 

A  judgment  of  the  supreme  court  of 
Hawaii  on  a  writ  of  error,  overruling  ex- 
ceptions to  a  verdict  and  judgment  in 
ejectment,  and  affirming  the  judgment,  is 
final  for  the  purpose  of  a  review  in  the 
supreme  court  of  the  United  States. 
Spreckles  v.  Brown,  212  U.  S.  208,  53  L. 
Ed.  476.  29  S.  Ct.  256,  distinguishing  Cot- 
ton V.  Hawaii,  211  U.  S.  162,  53  L.  Ed.  131, 
29   S.   Ct.  85. 

The  order  of  a  territorial  supreme  court, 
reversing   the   order    of   the    court    below. 


08 


Vol.  I. 


APPEAL  AND  ERROR. 


535-541 


(3)   Reviczv  of  Questions  of  Fact — aa.  In  General. — See  note  2. 

bb.    Rezneiv  of  Findings  of  Fact  by  Territorial  Court. — See  notes  5,  6. 

(5)    Questions  of  Practice. — See  note  19. 


granting-  a  new  trial,  can  not  be  reviewed 
by  the  federal  supreme  court  on  a  writ  of 
error  directed  alone  to  a  later  decision  in 
the  same  case,  overruling  exceptions,  the 
record  of  which  can  not  be  regarded  as 
embracing  the  proceedings  had  below  in 
respect  to  the  matter  of  a  new  trial.  Cot- 
ton V.  Hawaii,  211  U.  S.  162,  53  L.  Ed.  131, 
29  S.  Ct.  85. 

The  mere  entry  upon  the  minutes  by 
the  clerk  of  the  supreme  court  of  the  ter- 
ritory of  a  decision  overruling  exceptions 
taken  under  Rev.  Laws  Haw.  1905,  §  1862, 
et  seq.,  which  did  not  bring  up  the  whole 
case,  and  called  upon  the  reviewing  court 
merely  to  pass  upon  'specific  questions 
raised  by  the  bill,  does  not  make  such 
decision  a  final  judgment,  so  as  to  be  sub- 
ject to  review  in  the  federal  supreme  court. 
Cotton  V.  Hawaii,  211  U.  S.  162,  53  L.  Ed. 
131.  29   S.   Ct._  85. 

535-2.  Review  of  questions  of  fact. — 
Sherman  v.  Goodwin,  223  U.  S.  711.  56 
L.  Ed.  624.  33  S.  Ct.  519,  citing  Idaho,  etc., 
Improv.  Co.  V.  Bradbury,  132  U.  S.  509, 
513,  33  L.  Ed.  433,  10  S.  Ct.  177;  Garzot 
V.  De  Rubio,  209  U.  S.  284,  52  L.  Ed.  794, 
28  S.  Ct.  548.  _ 

536-5.  Review  of  findings  of  fact  by 
territorial  court.— Gonzales  v.  Buist,  224 
U.  S.  126,  56  L.  Ed.  693,  32  S.  Ct.  463. 

The  jurisdiction  of  the  federal  supreme 
court,  under  Act  April  7,  1874,  c.  80,  18 
Stat.  27,  on  an  appeal  froin  a  territorial 
court,  is  limited  to  the  inquiry  whether  the 
findings  of  fact  made  by  the  court  below 
support  its  judgment,  and  to  a  review  of 
exceptions  which  have  been  duly  taken  to 
rulings  upon  the  admission  or  rejection  of 
evidence.  Eagle  Min.,  etc.,  Co.  v.  Hamil- 
ton, 218  U.  S.  513,  54  L.  Ed.  .1131,  31  S. 
Ct.  27,  affirming  decree  (1907),  91  P.  718, 
41  N.   M.  511. 

Findings  of  a  territorial  supreme  court 
that  commissioners  appointed  in  a  street 
improvement  proceeding  examined  the  lo- 
cality thereof,  ascertained  the  extent  of 
public  benefit,  and  of  benefits  to  property, 
found  amounts  that  property  would  be 
benefited,  and  apportioned  and  assessed 
the  amounts  on  the  several  parcels  in  the 
proportion  of  which  they  were  severally 
benefited,  and  that  no  lot  was  assessed  for 
more  than  it  was  actually  benefited,  fore- 
close any  contention  in  the  federal  su- 
preme court  that  assessment  was  made  ac- 
cording to  the  front-foot  rule,  and  not  on 
basis  of  benefits.  English  v.  Arizona.  214 
U.   S.   359,  53  L.   Ed.   1030,  29   S.   Ct.  658. 

537-6.  In  suit  to  cancel  corporate  lease. 
— In  reviewing  a  decree  of  a  territorial 
supreme  court,  which  reversed  the  decree 
of  the  trial  court  in  a  suit  to  cancel  a  cor- 
porate lease,  the  federal  supreme  court  is 


confined,  as  vv-as  the  court  below,  to  de- 
termining whether  there  was  some  evi- 
dence supporting  the  findings  of  the  trial 
court,  and  whether  the  facts  found  were 
adequate  to  sustam  the  legal  conclusions. 
Judgment,  Anderson  v.  Shawnee  Com- 
press Co.  (1906J,  87  P..  315,  17  Okl.  231, 
affirmed.  Shawnee  Compress  Co.  v.  An- 
derson, 209  U.  S.  423,  52  L.  Ed.  865,  28  S. 
Ct.  572. 

Review  of  decree  of  supreme  court  of 
Oklahoma  Territory. — The  jurisdiction  of 
the  supreme  court  of  the  United  States  on 
an  appeal  from  a  decree  of  the  supreme 
court  of  the  territory  of  Oklahoma  in  a 
case  submitted  to  the  trial  court  by  stipu- 
lation, without  a  jury,  is  confined  to  de- 
termining whether  there  was  evidence 
tending  to  support  the  findings,  and 
whether  such  findings  sustained  the  judg- 
ment; since  the  trial  court,  by  virtue  of 
Rev.  St.  Okl.  1903,  §  279,  was  empowered 
to  make  findings  of  fact  as  the  basis  of 
its  conclusions  of  law,  and  the  supreme 
court  of  the  territory  was  confined  to  de- 
termining whether  the  findings  below 
sustained  the  judgment,  if  there  was  evi- 
dence supporting  the  findings,  and  was  not 
at  liberty  to  consider  the  mere  weight  of 
the  evidence  upon  which  the  findings  were 
made  by  the  trial  court.  Judgment  (1906), 
85  P.  459,  16  Okl.  131,  affirmed.  Southern 
Pine  Lumber  Co.  v.  Ward,  208  U.  S.  126, 
52  L.  Ed.  420,  28  S.  Ct.  239. 

541-19.  Questions  of  practice. — The  fed- 
eral supreme  court  should  certainly  lean 
to  the  construction  placed  upon  a  terri- 
torial statute  by  the  supreme  court  of  the 
territory.  Copper  Queen,  etc.,  Min.  Co. 
7-.  Territorial  Board.  206  U.  S.  474,  51  L. 
Ed.  1143,  27  S.  Ct.  695;  Sweeney  v.  Lomme, 
22  Wall.  208,  22  L.  Ed.  727;  Fox  v. 
Haarstick,  156  U.  S.  674,  39  L.  Ed.  576,  15 
S.  Ct.  457;  Clason  v.  Matko,  223  U.  S.  646, 
56  L.  Ed.  588,  32  S.  Ct.  392. 

The  view  of  a  territorial  supreme  court, 
that  an  alias  attachment  is  not  authorized 
by  the  local  statutes,  is  very  persuasive 
upon  the  federal  supreme  court  in  con- 
struing such  statutes.  Crary  v.  Dj^e,  208 
U.  S.  515,  52  L.  Ed.  595,  28  S.  Ct.  360. 

There  is  no  such  manifest  error  as  calls 
for  reversal  of  judgment  below  by  the 
federal  supreme  court  in  a  decision  of  the 
territorial  supreme  court  that  a  method 
of  collecting  delinquent  taxes,  prescribed 
by  Laws  .\riz.  1903,  No.  92,  viz.,  a  suit  by 
county  tax  collector  in  the  name  and  for 
use  of  the  territory,  is  made  applicable  to 
delinquent  special  assessments  for  public 
improvements  by  reason  of  provisions  of 
§§  84  and  96  of  that  act,  requiring, 
respectively,  the  clerks  of  county  boards 
to  correctly  list  all  tracts  on  which  back 


69 


541 


APPEAL  AND  ERROR. 


Vol.  I. 


j.  The  Statement  of  the  Facts. — See  note  21. 


taxes  shall  be  due,  and  all  back  taxes  of 
whatever  kind  to  be  collected  by  the  col- 
lector under  authority  of  such  statute. 
English  V.  Arizona,  214  U.  S.  359,  53  L. 
Ed.  1030,  29  S.  Ct.  658,  following  Copper 
Queen,  etc.,  Min.  Co.  v.  Territorial  Board, 
206  U.  S.  474,  479,  51  L.  Ed.  1143,  27  S. 
Ct.  695. 

The  federal  supreme  court  will  adopt  the 
view  of  officers  concerned  with  adminis- 
tration of  law  respecting  a  public  im- 
provement, concurred  in  by  the  court  in 
which  condemnation  proceedings  were 
conducted,  and  apparently,  also,  by  the 
territorial  supreme  court,  as  to  which  of 
two  sections  of  Arizona  Revised  Statutes 
governs  appointinent  of  commissioners, 
where  the  statute  will  bear  that  construc- 
tion, though  plausible  objections  may  be 
urged  against  it.  Decree  (Ariz.  1907),  89 
P.  501.  affirmed.  English  v.  Arizona,  214 
U.  S.  359,  '53  L.  Ed.  1030,  29  S.  Ct.  658,  fol- 
lowing Copper  Queen,  etc.,  Min.  Co.  v. 
Territorial  Board.  206  U.  S.  474,  479,  51  L. 
Ed.  1143,  27  S.  Ct.  695. 

The  question  of  the  power  of  a  terri- 
torial supreme  court,  under  its  local  stat- 
utes and  procedure,  to  render  a  modified 
judgment  on  appeal  in  mandamus,  will  or- 
dinarily not  be  reviewed  by  the  federal 
supreme  court.  Commissioners  v.  Coler, 
215  U.  S.  296,  54  L.  Ed.  202,  30  S.  Ct.  111. 

The  construction  placed  by  a  territorial 
supreme  court  upon  a  local  statute  will 
not  be  disturbed  by  the  federal  supreme 
court  on  appeal,  unless  manifestly'  erro- 
neous. Judgment,  Territory  v.  Board  of 
Com'rs  of  Santa  Fe  County  (N.  M.  1907\ 
89  P.  252,  affirmed.  Commissioners  v. 
Coler,  215  U.  S.  296,  54  L.  Ed.  202,  30  S. 
Ct.  111.  following  Sweeney  v.  Lomme,  22 
Wall.  208.  22  L.  Ed.  727:  .A^rmijo  z:  Armijo, 
181  U.  S.  558,  45  L.  Ed.  1000,  21  S.  Ct.  707; 
English  v.  Arizona.  214  U.  S.  359,  53  L. 
Ed.  1030,  29  S.  Ct.  658. 

The  construction  given  by  a  territorial 
supreme  court  to  the  statutes  of  that  ter- 
ritory will  ordinarily  not  be  disturbed  by 
the  federal  supreme  court  on  writ  of  er- 
ror to  the  territorial  court.  Judgment 
(1908).  Sandoval  v.  Albright.  93  P.  717, 
affirmed.  Albright  v.  Sandoval,  No.  2,  216 
U.  S.  342,  54  L.  Ed.  509,  30  S.  Ct.  321,  fol- 
lowing Fox  7'.  Haarstick,  156  U.  S.  674, 
39  L.  Ed.  576,  15  S.  Ct.  457;  English  v. 
Arizona.  214  U.  S.  359,  53  L.  Ed.  1030,  29 
S.  Ct.  658;  Crary  v.  Dye,  208  U.  S.  515,  52 
L.  Ed.  595,  28  S.  Ct.  360. 

The  decision  of  the  Arizona  supreme 
court  that  a  railway  company  organized  in 
1901  under  Laws  Ariz.  1897,  No.  3,  for  the 
purpose  of  buying  the  property  of  a  rail- 
road sold  on  foreclosure,  may  claim  the 
benefit  of  the  provision  of  Laws  Ariz. 
1899.  No.  68,  that  property  used  or  neces- 
sary in  the  construction  and  operation  of 


railroads  thereafter  constructed,  whether 
owned  or  operated  by  a  person,  associa- 
tion, or  railway  corporation,  their  succes- 
sors or  assigns,  shall  be  exempt  from  all 
manner  of  taxation  for  ten  years  from  the 
date  of  the  act,  although  by  §  8  of 
the  earlier  act  it  was  provided  that  that 
act  should  not  be  construed  to  give  to  any 
corporation  created  under  it  any  exemp- 
tion from  taxation  created  by  any  existing 
or  future  exemption  laws,  is  not  so  clearly 
erroneous  as  to  require  reversal  in  the 
federal  supreme  court.  Treat  v.  Grand 
Canyon  R.  Co.,  222  U.  S.  448,  56  L.  Ed. 
265,  32  S.  Ct.  125,  affirming  decree  (1909), 
100  P.  438,  12  Ariz.  117,  following  Fox  v. 
Haarstick,  156  U.  S.  674,  679,  39  L.  Ed. 
576,  15  S.  Ct.  457;. English  v.  Arizona,  214 
U.  S.  359,  53  L.  Ed.  1030,  29  S.  Ct.  658. 

Stipulation. — The  federal  supreme  court 
will  not  reverse  the  decision  of  a  terri- 
torial court  upon  its  construction  of  a 
stipulation,  where  the  stipulation  pertains 
simply  to  the  conduct  of  the  trial.  Clason 
V.  Matko,  223  U.  S.  646.  56  L.  Ed.  588,  32 
S.   Ct.  392. 

A  judgment  for  plaintiffs  in  an  action 
to  quiet  title  to  a  mining  claiin  which  de- 
fendant claims  under  a  relocation  after  an 
alleged  forfeiture  for  failure  to  do  the 
necessary  assessment  work  before  re- 
sumption of  work  by  plaintififs,  on  the 
ground  that  defendant's  relocation  was 
void,  because  the  location  notice  attached 
to  his  cross  complaint  did  not  state  that 
the  claim  was  located  as  forfeited  or 
abandoned  property,  as  required  by  Ariz. 
Rev.  Stat.  par.  3241.  and  that  a  stipulation 
that  the  respective  locations  on  which  the 
parties  based  their  rights  were  each  "duly 
made,"  and  that  all  acts  required  by  the 
laws  of  the  United  States  and  the  terri- 
tory of  Arizona  necessary  to  vest  good 
and  valid  titles  in  the  locators  had  been 
duly  performed  at  the  time  of  the  location, 
except  that  plaintiffs  do  not  admit  that  at 
the  time  of  defendant's  location  the 
ground  was  open  to  location,  because  of 
failure  to  do  assessment  work,  was  en- 
tered into  only  to  take  the  place  of  evi- 
dence, and  not  to  supplant  the  pleadings, 
and  that  the  cross  complaint  was  insuffi- 
cient for  failure  to  show  a  proper  loca- 
tion notice,  will  not  be  disturbed  on  ap- 
peal, even  though  the  stipulation  might  be 
regarded  as  admitting  the  sufficiency  of 
defendant's  notice,  where  both  parties 
amended  their  pleadings  after  the  filing  of 
the  stipulation,  and  defendant  was  not  de- 
prived of  any  right  by  the  decision  as  to 
the  nature  of  the  stipulation.  Clason  v. 
Matko,  223  U.  S.  646,  56  L.  Ed.  588,  33 
S.  Ct.  392. 

541-21.  The  statement  of  facts. — A  ter- 
ritorial supreme  court  does  not  discharge 
its  duty  under  the  act  of  April  7,  1874  (18 


70 


Vol.  I. 


APPEAL  AND  ERROR. 


545-546 


1.  Mandate. — See  note  39. 

m.  Affirmance  or  Reversal. — The  general  rule  is  to  affirm  a  judgment  on  an 
appeal  from  a  territorial  court  where  the  record  contains  no  exceptions  to  rul- 
ings upon  the  admission  or  rejection  of  evidence,  and  where  there  is  absence 
of  the  statement  of  facts  required  by  the  statute  to  enable  the  reviewing 
power  to  be  exerted,  and  when  there  is  no  showing  that  the  appellant 
has  used  due  diligence  to  exact  a  compliance  with  the  statute,  so  as  to 
enable  an  appeal  to  be  prosecuted."* ^^  But  to  this  general  rule  an  exception  will 
be  recognized;  first,  where  the  action  of  the  court  below  is  plainly  the  result 
not  of  a  mere  omission  to  perform  its  duty  to  make  a  statement  of  facts,  but 
arises  from  a  misconception  of  its  powers  in  discharging  that  statutory  duty. 
Second,  where  the  initial  action  by  which  the  error  was  committed  was  am- 
biguously manifested  and  may  have  misled  the  unsuccessful  party.  And  third, 
where  the  final  order  shows  that  the  court  intended  to  make  no  findings  of  fact, 
and  deemed  that,  consistently  with  the  right  to  review  its  action  which  is  vested 
in  the  federal  supreme  court,  it  had  the  power  to  decide  the  case  upon  a  mere 
hypothesis  as  to  the  correctness  of  the  findings  of  the  trial  court."* -'^ 

7.  Over  State  Courts — a.  In  General. — See  notes  44,  48. 


Stat,  at  L.  27,  chap.  80),  to  make  an  ade- 
quate statement  of  facts  in  the  nature  of 
a  special  verdict,  where  it  merely  hypo- 
thetically  assumes  the  findings  of  the  trial 
court  to  be  correct,  and  upon  such  mere 
hypothesis  bases  a  judgment  which  re- 
verses a  decree  for  complainant  below  and 
remands  the  cause,  with  a  direction  to 
enter  a  final  decree  against  such  com- 
plainant. Nielsen  v.  Steinfeld,  224  U.  S. 
534,   56   L.    Ed.   872,   32   S.   Ct.   609. 

Sufficiency  of  certified  statement  of 
facts. — But  whether  the  court  adopts  an 
agreed  statement  of  facts  or  itself  finds 
the  facts,  the  agreed  statement  or  findings 
must  be  of  the  ultimate  facts,  and  if  they 
be  merely  recital  of  testimony  or  eviden- 
tiary facts,  it  brings  nothing  before  the 
federal  supreme  court  for  consideration. 
Gonzales  v.  Buist,  224  U.  S.  126,  56  L.  Ed. 
693,  32  S.  Ct.  463,  citing  Thompson  v. 
Ferry,  180  U.  S.  484,  45  L.  Ed.  633,  21  S. 
Ct.  453;  United  States  Trust  Co.  v.  New 
Mexico,  183  U.  S.  535,  540,  46  L.  Ed.  315, 
22  S.  Ct.  172;  Crowe  v.  Trickey,  204  U.  S. 
228,  235,  51  L.  Ed.  454,  27  S.  Ct.  275;  Glenn 
V.  Fant,  134  U.  S.  398,  33  L.  Ed.  969,  10 
S.  Ct.  583. 

545-39.  Admission  of  territory  pending 
appeal.— Nielsen  r.  Steinfeld,  224  U.  S.  534, 
56  L.   Ed.  872,  32  S.  Ct.  609. 

546-42a.  General  Rule. — Gonzales  v. 
Buist,  224  U.  S.  126,  56  L.  Ed.  693,  32  S. 
Ct.  463;  Nielsen  v.  Steinfeld,  224  U.  S.  534, 
56  L.  Ed.  872,  32  S.  Ct.  609. 

546-42b.  Exception  to  rule. — Nielsen  v. 
Steinfeld,  224  U.  S.  534,  56  L.  Ed.  872,  32 
S.  Ct.  609. 

The  hypothetical  assumption  by  a  ter- 
ritorial supreme  court  of  the  correctness 
of  the  findings  of  the  trial  court,  and  the 
basing  upon  such  mere  hypothesis  of  a 
judgment  which  reversed  a  decree  in 
favor  of  complainant  below,  and  re- 
manded the  cause,  with  a  direction  to  en- 


ter a  final  decree  against  such  complainant, 
instead  of  discharging  its  duty  under  the 
act  of  April  7,  1874,  to  make  a  statement 
of  the  facts  in  the  nature  of  a  special  ver- 
dict, calls  for  a  reversal  in  the  federal  su- 
preme court,  rather  than  the  usual  affirm- 
ance, where  such  action  arose  from  the 
court's  misconception  as  to  the  nature  and 
extent  of  its  power  in  discharging  its 
statutory  duty,  and  where  the  initial  ac- 
tion by  which  the  error  was  committed 
was  ambiguously  manifested,  and  may 
have  misled  the  unsuccessful  party,  and  the 
final  order  which  made  clear  the  court's 
intent  and  misconception  was  not  entered 
until  months  after  the  appeal  to  the  fed- 
eral supreme  court  had  been  taken. 
Nielsen  v.  Steinfeld,  224  U.  S.  534,  56  L. 
Ed.   872,   32   S.   Ct.   609. 

546-44.  The  Revised  Statutes  of  the 
United  States,  §  709,  authorize  the  supreme 
court  to  review  final  judgments  in  the 
highest  court  of  the  state  in  which  a  de- 
cision in  the  suit  could  be  had,  where  any 
title,  right,  privilege  or  immunity  under 
the  federal  constitution  or  under  any 
statute  of  or  authority  exercised  under  the 
United  States,  is  specially  claimed  and  de- 
nied. Atchison,  etc.,  R.  Co.  v.  Sowers, 
213  U.  S.  55,  62,  53  L-  Ed.  695,  29  S.  Ct. 
397. 

"It  was  settled,  once  for  all  time,  in  Co- 
hens V.  Virginia,  6  Wheat.  264,  52  L.  Ed.  257, 
that  the  appellate  jurisdiction,  authorized 
by  the  constitution  to  be  exercised  by  this 
court,  warrants  it  in  reviewing  the  judg- 
ments of  state  courts  so  far  as  they  pass 
upon  a  law  of  the  United  States.  It  was 
said  in  that  case  (p.  416) :_  'They  [the 
words  of  the  constitution]  give  to  the  su- 
preme court  appellate  jurisdiction  in  all 
cases  arising  under  the  constitution,  laws, 
and  treaties  of  the  United  States.  The 
words  are  broad  enough  to  comprehend  all 
cases  of  this  description,  in  whatever  court 


71 


547-558 


APPEAL  AND  ERROR. 


Vol.  I. 


g.  Decision  Must  Be  That  of  "Highest  Court"  in  State. — See  note  84. 

Rule  Where  Highest  Court  Denies  Petition  for  Writ  of  Error. — The 

judgment  of  the  trial  court  is  that  of  the  highest  court  of  the  state  for  the 
purpose  of  a  writ  of  error  from  the  federal  supreme  court,  where  the  highest 
state  tribunal  has  denied  a  writ  of  error  to  the  trial  court.^^^ 


they  may  be  decided;'  and  it  was  further 
said  (p.  379) :  'A  case  in  law  or  equity  con- 
sists of  the  right  of  the  one  party,  as  well 
as  of  the  other,  and  may  truly  be  said  to 
arise  under  the  constitution  or  a  law  of 
the  United  States,  whenever  its  correct 
decision  depends  on  the  construction  of 
either.'  But  the  appellate  jurisdiction  of 
this  court  must  be  «exercised  'with  such 
exceptions  and  under  such  regulations  as 
the  congress  shall  make.'  "  St.  Louis,  etc., 
R.  Co.  V.  Taylor,  210  U.  S.  281,  292,  52  L. 
Ed.  1061,  28  S.  Ct.  616. 

547-48.  Right  is  limited  by  the  statute. 
— The  supreme  court  has  had  frequent  oc- 
casion to  say  that  its  right  to  review  the 
judgment  of  the  highest  court  of  a  state 
is  specifically  limited  by  the  provisions  of 
§  709.  Rev.  Stat.,  of  the  United  States. 
Appleby  v.  Buffalo,  221  U.  S.  524.  529.  55 
L.  Ed.  838,  31  S.  Ct.  699;  Chesapeake,  etc., 
R.  Co.  V.  McDonald,  214  U.  S.  191,  192,  53 
L.  Ed.  963,  29  S.  Ct.  546. 

"Congress  has  regulated  and  limited  the 
appellate  jurisdiction  of  this  court  over 
the  state  courts  by  §  709,  Rev.  Stat.,  and 
our  jurisdiction  in  this  respect  extends 
only  to  the  cases  there  enumerated,  even 
though  a  wider  jurisdiction  might  be  per- 
mitted by  the  constitutional  grant  of 
power."  St.  Louis,  etc.,  R.  Co.  v.  Taylor, 
210  U.  S.  281,  292,  52  L.  Ed.  1061,  28  S. 
Ct.    616. 

A  case  can  only  be  brought  to  the  fed- 
eral supreme  court  from  a  suprem.e  court 
of  a  state  by  writ  of  error  under  §  709, 
Rev.  Stat.,  of  the  United  States,  in  order 
to  determine  federal  rights  asserted  under 
that  section  of  the  statutes  which  it  is 
claimed  have  been  denied  by  the  decision 
and  judgment  of  the  supreme  court  of  the 
state.  Los  Angeles,  etc.,  Milling  Co.  7'. 
Los  Angeles,  217  U.  S.  217,  225,  54  L. 
Ed.  736,  30  S.  Ct.  452. 

556-84.  The  court  of  civil  appeals  of 
the  state  of  Texas  is  the  highest  court  of 
the  state  for  the  purpose  of  a  review  in 
the  federal  supreme  court  in  a  case  in 
which  the  supreme  court  of  the  state  has 
dismissed,  for  want  of  jurisdiction,  an  ap- 
plication to  review  the  judgment  of  court 
of  civil  appeals.  Judgment  (Tex.  Civ. 
App.  1906),  95  S.  W.  645.  affirmed.  Sulli- 
van V.  Texas,  207  U.  S.  416,  52  L.  Ed.  274, 
28  S.  Ct.  215. 

558-90a.  Where  highest  court  denies  pe- 
tition for  writ  of  error. — Western  Union 
Tel.  Co.  V.  Crovo,  220  U.  S.  364,  55  L.  Ed. 
498,   31   S.    Ct.   399. 

But  in  a  late  important  case  Mr.  Chief 
Justice    White    made     the     following      an- 


nouncement: "Hereafter,  a  writ  of  error 
to  review  an  alleged  judgment  or  decree 
of  a  court  of  last  resort  of  the  state,  de- 
clining to  allow  a  writ  of  error  to,  or  an 
appeal  from,  a  lower  state  court,  will  be 
dismissed  unless  it  plainly  appears  on  the 
face  of  the  record,  by  an  affirmance  in  ex- 
press terms  of  the  judgment  or  decree 
sought  to  be  reviewed,  that  the  refusal  of 
the  court  to  allow  an  appeal  or  writ  of 
error  was  the  exercise  by  it  of  jurisdiction 
to  review  the  case  upon  the  merits."  Nor- 
folk, etc.,  Turnpike  Co.  v.  Virginia,  225  U. 
S.  264,  56  L.  Ed.  1082,  32  S.  Ct.  828. 

"While,  therefore,  in  this  case,  for  the 
reasons  stated,  we  entertain  jurisdiction, 
and  do  not  of  our  own  motion  dismiss  the 
writ,  for  the  purpose  df  avoiding  the  com- 
plexity and  doubt  which  must  continue  to 
recur,  and  for  the  guidance  of  suitors  in 
the  future,  we  now  state  that  from  and 
after  the  opening  of  the  next  term  of  this 
court,  where  a  writ  of  error  is  prosecuted 
to  an  alleged  judgment  or  decree  of  a 
court  of  last  resort  of  a  state,  declining  to 
allow  a  writ  of  error  to  or  an  appeal  from 
a  lower  state  court,  unless  it  plainly  ap- 
pears, on  the  face  of  the  record,  by  an  af- 
firmance in  express  terms  of  the  judg- 
ment or  decree  sought  to  be  reviewed, 
that  the  refusal  of  the  court  to  allow  an 
appeal  or  writ  of  error  was  the  exercise 
by  it  of  jurisdiction  to  review  the  case 
upon  the  merits,  we  shall  consider  our- 
selves constrained  to  apply  the  rule  an- 
nounced in  the  Crovo  Case  (Western 
Union  Tel.  Co.  v.  Crovo,  220  U.  S.  364, 
366,  55  L.  Ed.  498,  31  S.  Ct.  390),  and  shall 
therefore,  by  not  departing  from  the  face 
of  the  record,  solve  against  jurisdiction 
the  ambiguity  created  by  the  form  in 
which  the  state  court  has  expressed  its 
action."  Norfolk,  etc.,  Turnpike  Co.  v. 
Virginia,  225  U.  S.  264,  56  L.  Ed.  1082.  32 
S.  Ct.  828. 

The  plaintiff  in  error  has  sued  out  two 
writs  of  error;  one  to  the  law  and  equity 
court  of  the  city  of  Richmond,  the  trial 
court,  and  anot^'er  to  the  supreme  court 
of  appeals  of  Virginia.  Inasmuch  as  the 
latter  court  denied  a  writ  of  error,  the 
judgment  of  the  law  and  equity  court  was 
the  highest  court  of  the  state  to  which  the 
case  could  be  carried,  and  a  writ  will 
therefore  lie  to  that  court  if  a  federal 
question  is  properly  saved.  Western 
Union  Tel.  Co.  v.  Crovo.  220  U.  S.  364,  55 
L.   Ed.   498.  31    S.   Ct.   300. 

Tn  Western  U"ion  Tel.  Co.  7'.  Crovo, 
220  IT.  S.  364.  55  L.  Ed.  498.  31  S.  Ct.  399, 
the    federal    suoreme    court    held    without 


Vol.  I. 


APPEAL  AND  ERROR. 


558 


h.   JJlwt  Is  the  Assertion  of  "a  Right  or  Itiiiniuiity." — See  note  92. 


discussion  that  the  judgment  of  the  trial 
court  is  that  of  the  highest  court  of  the 
state  for  the  purpose  of  a  writ  of  error 
from  a  federal  supreme  court  where  the 
highest  state  tribunal  has  denied  a  writ 
of  error  to  the  trial  court.  But  in  Nor- 
folk, etc..  Turnpike  Co.  v.  Virginia,  325 
U.  S.  264,  56  L.  Ed.  1082,  32  S.  Ct.  828, 
where  the  highest  state  tribunal  had  de- 
nied a  writ  of  error  to  the  trial  court,  and 
a  writ  of  error  was  sought  to  the  highest 
state  court  and  not  to  the  trial  court,  it 
was  held  that  if  the  rule  announced  in  the 
Crovo  case  were  applied,  the  writ  of  er- 
ror would  have  to  be  dismissed;  but  since 
the  highest  state  court  had  denied  the 
writ  to  the  trial  court  on  the  ground  that 
the  judgment  was  "plainly  right,"  an  am- 
biguity^ exists  whether  it  is  a  refusal  to 
take  jurisdiction  or  an  exercise  of  juris- 
diction and  affirmance,  and  the  ambiguity 
would  be  solved  in  favor  of  jurisdiction, 
because  there  is  little  doubt  that  when  the 
form  of  expression  used  by  the  court  be- 
low is  read  in  the  light  of  the  previous 
rulings  it  was  quite  clear  that  the  court 
deemed  it  was  exercising  jurisdiction  over 
the  cause  and  virtually  affirming  the  judg- 
ment, and  was  expressing  its  action  in 
such  way  as  to  clearly  indicate  that  such 
was  its  intention,  especially  where  the 
writ  of  error  was  allowed  by  the  presid- 
ing judge  of  the  court.  But  the  court 
warned  that  for  the  purpose  of  avoiding 
the  ambiguity  and  doubt  which  must  con- 
tinue to  occur  and  for  the  guidance  of 
suitors  in  the  future  that  from  and  after 
the  next  term  of  the  court  where  a  writ 
of  error  is  prosecuted  to  an  alleged  judg- 
ment or  a  decree  of  a  court  of  last  resort 
of  a  state  declining-  to  allow  a  writ  of  er- 
ror to  or  an  appeal  from  the  lower  state 
court,  unless  it  plainly  appears  on  the 
face  of  the  record  by  an  affirmance  in  ex- 
press terms  of  the  judgment  or  decree 
sought  to  be  reviewed  that  the  refusal  of 
the  court  to  allow  an  appeal  or  writ  of 
error  was  the  exercise  by  it  of  jurisdiction 
to  review  the  case  upon  the  merits,  it 
would  consider  itself  constrained  to  apply 
the  rule  announced  in  the  Crovo  case  and 
would,  therefore,  by  not  departing  from 
the  face  of  the  record,  solve  against  ju- 
risdiction the  ambiguity  created  by  the 
judgment  in  which  the  state  court  has  ex- 
pressed its  action.  For  an  interesting  dis- 
cussion of  this  decision,  see  Va.  Law  Reg- 
ister, vol.  18,  p.  30,3. 

558-92.  What  is  the  assertion  of  "a  right 
or  immunity." — The  principles  to  be  de- 
rived from  the  cases  are  these:  Where  a 
party  to  litigation  in  a  state  court  insists, 
by  way  of  objection  to  or  requests  for  in- 
structions, upon  a  construction  of  a  stat- 
ute of  the  United  States  which  will  lead, 
or,  on  possible  findings  of  fact  from  the 


evidence  maj^  lead,  to  a  judgment  in  his 
favor,  and  his  claim  in  this  respect,  being 
duly  set  up,  is  denied  by  the  highest  court 
of  the  state,  then  the  question  thus  raised 
may  be  reviewed  in  the  federal  supreme 
court.  The  plain  reason  is  that  in  all 
such  cases  he  has  claimed  in  the  state 
court  a  right  or  immunity  under  a  law 
of  the  United  States  and  it  has  been 
denied  to  him.  Jurisdiction  so  clearly 
warranted  by  the  constitution  and  so  ex- 
plicitly conferred  by  the  act  of  congress 
needs  no  justification.  But  it  may  not  be 
out  of  place  to  say  that  in  no  other  man- 
ner can  a  uniform  construction  of  the 
statute  laws  of  the  United  States  be 
secured,  so  that  they  shall  have  the  same 
meaning  and  effect  in  all  the  states  of  the 
union.  St.  Louis,  etc.,  R.  Co.  v.  Taylor, 
210  U.  S.  281,  293,  52  L-  Ed.  1061,  28  S. 
Ct.  616. 

A  party  who  insists,  by  way  of  objection 
to  or  requests  for  instructions,  upon  a 
construction  of  a  federal  statute  which  will 
lead  to  a  judgment  in  his  favor,  sets  up 
a  claim  of  a  right  or  immunity  under  such 
statute  within  the  meaning  of  Rev.  St.  U. 
S.,  §  709  (U.  S.  Conip.  St.  1901,  p.  575), 
governing  writs  of  error  from  the  supreme 
court  of  the  United  States  to  state  courts. 
Judgment,  St.  Louis,  L  M,  &  S.  Ry.  Co. 
v.  Neal  (1906),  98  S.  W.  958,  83  Ark.  591, 
reversed.  St.  Louis,  etc.,  R.  Co.  v.  Taylor, 
210  U.  S.  281,  52  L.  Ed.  106L  28  S.  Ct.  61G. 

Right  claimed  under  territorial  statute. 
— The  decision  of  a  state  court  denying 
the  force  and  effect  speciallj^  claimed  un- 
der the  federal  constitution  and  laws  for 
a  territorial  statute  is  reviewable  in  the 
supreme  court  of  the  United  States  under 
Rev.  St.  U.  S.,  §  709  (U.  S.  Comp.  St.  1901, 
p.  575),  as  a  case  in  which  a  right,  title, 
privilege,  or  immunity  under  the  federal 
constitution,  or  under  a  statute  of,  or  au- 
thority exercised  under,  the  United  States, 
was  specially  claimed  and  denied.  Judg- 
ment (Tex.  Civ.  App.  1907),  99  S.  W.  190, 
affirmed.  Atchison,  etc.,  R.  Co.  v.  Sowers, 
213  U.  S.  55,  53  L.  Ed.  695,  29  S.  Ct.  397. 

Title  claimed  under  supply  lien  law 
of  state. — Claims  by  the  United  States,  in 
proceedings  under  the  supply  lien  law  of 
a  state,  to  establish  the  rights  of  creditors 
furnishing  supplies  for  the  construction  of 
vessels  building  for  the  United  States,  that 
under  the  contract  for  the  construction 
of  one  of  the  vessels  the  title  vested  in 
the  government  as  fast  as  paid  for;  that 
a  lien  was  reserved  to  the  government  un- 
der the  contract  for  building  the  other 
vessels,  superior  to  the  claim  of  the  sup- 
ply lien  creditors  under  the  state  law; 
that  the  right  of  the  government  to  its 
superior  claims  could  not  be  affected  by, 
and  was  not  subject  to,  such  law;  and  that 
the  state  had  no  power  to  retard,  impede. 


73 


560-570 


APPEAL  AND  ERROR. 


Vol.  I. 


i.  Decisions  Reviezvable — (2)  Necessity  for  Finality  of  Judgment  or  Decree. 
— See  post,  "Finality  of  Decision  as  Governing  Right  of  Review,"  IV,  C. 

In  Case  of  Successive  Appeals. — The  judgment  of  the  highest  court  of  a 
state,  affirming,  on  a  third  appeal,  a  judgment  entered  on  a  verdict  in  favor  of 
plaintiff,  is  the  first  final  judgment  in  the  action  which  is  reviewable  in  the 
federal  supreme  court,  where  the  highest  state  court,  on  the  first  appeal,  re- 
versed the  order  of  the  lower  court,  granting  a  petition  for  the  removal  of  the 
action  to  a  federal  circuit  court,  and  remanded  the  case  for  trial,  and,  on  the 
second  appeal,  reversed  a  judgment  entered  on  a  directed  verdict  in  favor  of 
defendant,  although  the  court,  on  such  third  appeal,  regarded  itself  as  bound 
by  its  prior  decision  as  the  law  of  the  case,  and  declined  again  to  consider  the 
federal  question. ^•^'^ 

k.  Necessity  for  Adverse  Decision — (3)  Under  Third  Clause  of  the  Statute. 
— If  the  question  in  the  state  court  involves  the  right  of  a  party  to  be  protected 
against  a  law  which  violates  a  right  under  the  federal  constitution,  whether  by 
its  terms  or  the  manner  of  its  enforcement,  it  is  manifest  that  a  decision  which 
denies  such  protection  gives  effect  to  the  law,  and  the  decision  is  reviewable 
by  the  supreme  court.^^^ 

1.  Parties. — See  post,  "Parties  and  Persons  Entitled  to  Appeal,"  VI. 

{I)  In  General. — Although  a  state  was  not  named  as  a  party  to  the  proceed- 
ings initiated  in  the  court  below,  yet  if  the  proceedings  in  that  court  were  in 
reality  begun  and  prosecuted  on  behalf  of  the  state,  this  is  sufficient. ^^"^ 

m.  Who  May  Make  the  Objection. — See  note  24. 


or  control  the  operation  of  the  federal 
government  in  making  and  carrying  out 
such  contracts,  are  assertions  of  rights 
and  immunities,  the  creation  of  federal 
authority,  which,  when  denied  by  a  state 
court,  present  a  case  under  Rev.  St.  U. 
S.,  §  709  (U.  S.  Comp.  St.  1901,  p.  575), 
for  a  writ  of  error  from  the  federal  su- 
preine  court.  United  States  v.  Ansonia 
Brass,  etc.,  Co.,  218  U.  S.  452,  54  L.  Ed. 
1107,  31  S.  Ct.  49. 

560-96a.  In  case  of  successive  appeals. 
—Chesapeake,  etc.,  R.  Co.  v.  AlcCabe,  213 
U.  S.  207,  53  L.  Ed.  765.  29  S.  Ct.  430,  re- 
versing Maysville  &  B.  S.  R.  Co.  v.  Mac- 
abe's  Adm'x,  100  S.  W.  219,  30  Ky.  Law 
Rep.   1009. 

568-17a.  'Under  third  clause  of  the  stat- 
ute.—General  Oil  Co.  c'.  Crain,  209  U.  S. 
211.  52  L.  Ed.  754,  28   S.  Ct.  475. 

A  decision  of  a  state  court  dismissing-, 
on  the  ground  that  the  suit  was  one 
against  the  state,  and  therefore  not  within 
its  jurisdiction,  a  bill  which  seeks  to  en- 
join a  state  oil  inspector  from  enforcing  a 
state  inspection  law,  on  the  theory  that 
such  law.  if  applied  to  the  oils  in  contro- 
versy, violates  the  commerce  clause  of  the 
federal  constitution,  gives  effect  to  such 
law,  and  is  reviewable  by  the  supreme 
court  of  the  United  States.  Judgment 
(1906),  95  S.  W.  824,  117  Tenn.  82.  affirmed. 
General  Oil  Co.  v.  Crain,  209  U.  S.  211.  52 
L.  Ed.  754,  28  S.  Ct.  475. 

Where  act  of  congress  erroneously  con- 
strued.— Where  the  action  is  brought  un- 
der an  act  of  congress,  if  the  act  has  been 
erroneously  construed  and  exceptions 
saved,    or    if    a   particular    construction    to 


which  the  party  asking  was  entitled  was 
denied,  a  right  has  been  denied  under  the 
statute,  and  the  question  may  be  reviewed 
by  the  supreme  court.  St.  Louis,  etc.,  R. 
Co.  V.  Taylor,  210  U.  S.  281,  293,  52  L.  Ed. 
1061,  28  S.  Ct.  616;  Seaboard  Air  Line 
Railway  v.  Duvall,  225  U.  S.  477,  56  L. 
Ed.    1171,    32    S.    Ct.   790. 

569-23a.  State  as  defendant  in  error. — 
Norfolk,  etc..  Turnpike  Co.  v.  Virginia, 
225  U.  S.  264,  56  L.  Ed.  1082,  32  S.  Ct.  828, 
citing  Pearson  v.  Yewdall,  95  U.  S.  294,  24 
L.  Ed.  436.     See,  also,  post,  COURTS. 

The  state  is  properly  made  the  defend- 
ant in  error  in  a  writ  of  error  sued  out  to 
review  the  judgment  of  a  state  court  sus- 
pending the  collection  of  tolls  by  a  turn- 
pike company  until  the  roads  were  put  in 
proper  repair,  although  the  state  was  not 
named  as  a  party  to  the  proceedings 
leading  up  to  such  judgment,  where  such 
proceedings  were  in  reality  begun  and 
prosecuted  on  behalf  of  the  state.  Nor- 
folk, etc.,  Turnpike  Co.  v.  Virginia,  225 
U.  S.  264,  56  L.  Ed.  1082,  32  S.  Ct.  828,  cit- 
ing Pearson  v.  Yewdall,  95  U.  S.  294,  24 
L.   Ed.  436. 

570-24.  Who  may  make  the  objection. — 
It  is  well  settled  in  the  federal  supreme 
court  that,  because  a  state  statute,  when 
enforced  in  a  state  court  against  a  class 
to  which  the  party  complaining  does  not 
belong,  may  work  a  deprivation  of  con- 
stitutional i-ights,  that  fact  does,  not  au- 
thorize the  reversal  of  a  judgment  of  a 
state  court  not  enforcing  the  statute  so  as 
to  deprive  the  party  complaining  of  rights 
which  are  protected  by  the  federal  con- 
stitution. Hatch  V.  Reardon,  204  U.  S.  152, 


Vol.  I. 


APPEAL  AND  ERROR. 


571-574 


p.  Shoziing  as  to  Jurisdiction — (1)   In  General. — See  note  28. 
(2)   That  Federal  Question  Was  Actually  or  Necessarily  Raised  and  Decided 
— aa.  /;/   General. — See  notes  41,  46. 


]60,  51  L.  Ed.  415,  27  S.  Ct.  188;  Lee  v.  New 
Jersey,  207  U.  S.  67,  70,  52  L.  Ed.  106,  28 
S.   Ct.  22. 

A  judgment  of  a  state  court  which  does 
not  so  enforce  a  state  statute  as  to  de- 
prive the  party  complaining  of  rig'hts 
which  are  protected  by  the  federal  con- 
stitution will  not  be  reversed  in  the  su- 
preme court  of  the  United  States  because 
such  statute,  when  enforced  against  a 
class  to  which  the  party  complaining  does 
not  belong,  may  work  a  deprivation  of 
such  constitutional  rights.  Lee  v.  New 
Jersey,  207  U.  S.  67.  52  L.  Ed.  106.  28  S. 
Ct.  22. 

571-28.  Showing  as  to  jurisdiction. — ^The 
federal  supreme  court  will  review  by  writ 
of  error  a  decision  of  a  state  court,  re- 
fusing habeas  corpus  to  a  person  in  cus- 
tod3'  upon  the  charge  of  practicing  medi- 
cine without  complying  with  the  require- 
ments of  Tex.  Laws  1907,  chap.  123.  with 
respect  to  licensing  and  registration, 
where,  the  facts  being  admitted,  the  ques- 
tion of  the  validity  of  that  statute  under 
the  federal  constitution  appears  as  plainly 
as  it  ever  will.  Collins  v.  Texas.  22.^  U. 
S.  288.  56  L.   Ed.  439,   32   S.   Ct.  286. 

574-41.  Question  must  have  been  neces- 
sarily raised  and  decided. — In  order  f> 
give  the  federal  supreme  court  jurisdic- 
tion of  a  writ  of  error  to  the  highest  court 
Oi  a  .-•t.'.te  in  which  a  ('ecis,u>n  couM  be 
had  it  must  appear  affirmatively  that  a 
federal  question  v/.ts  presented  fot  de- 
cision, that  its  decision  was  necessary  to 
the  determination  of  the  cause,  and  that  it 
was  actually  decided  or  that  the  judgment 
rendered  could  not  have  been  given  with- 
out deciding  it.  First  Nat.  Bank  t'.  City 
Council.  215  U.  S.  341.  346.  54  L.  Ed.  223, 
30  S.  Ct.  152._    See,  also,  post,  COURTS. 

Where  the  jurisdiction  of  the  supreme 
court  depends  Upon  the  denial  by  the  --late 
court  of  some  right,  privilege,  or  immunity 
claimed  under  the  constituti.'n  or  au- 
thority of  the  United  States,  it  must  ap- 
pear on  the  record  that  such  riglit,  privi- 
lege or  immunity  was  specially  set  up  and 
tlaimed  and  was  expressly  denied  or  5uch 
was  the  necessary  effect  in  law  of  ihe 
judgment.  .A.pplebv  v.  Buffalo.  221  U.  S. 
524.  55   L.   Ed.  838.  31  S.   Ct.  699. 

In  any  of  the  classes  of  cases  men- 
tioned in  §  709  it  is  essential  that  the 
record  disclose  that  the  federal  question 
involved  was  decided,  or  that  the  judg- 
ment necessarily  involved  the  federal  right 
and  decided  it  adversely  to  the  claim  of 
the  plaintiff  in  error.  Chesapeake,  etc..  R. 
Co.  V.  McDonald.  214  U.  S.  191.  193,  53 
L.   Ed.  963.  29   S.  Ct.   546. 

"According  to  the  well-settled  doctrine 
of  this  court  with  regard  to  cases  coming 


from  state  courts,  unless  a  decision  upon 
a  federal  question  w&s  necessary  to  the 
judgment  or  in  fact  was  made  the  ground 
of  it,  the  writ  of  error  must  be  dismissed." 
Bonner  v.  Gorman,  213  U.  S.  86,  91,  53 
L.  Ed.  709,  29  S.  Ct.  483. 

"In  a  case  xoming  from  a  state  court 
this  court  can  consider  only  federal  ques- 
tions, and  that  it  can  not  entertain  the 
case  unless  the  decision  was  against  the 
plaintiff  in  error  upon  those  questions. 
''  *  *  A  decision  upon  those  questions  must 
have  been  necessary  to  the  decision  of  the 
case,  so  that  if  the  judgment  complained 
of  is  supported  also  upon  other  and  inde- 
pendent grounds,  the  judgment  must  be 
affirmed  or  the  writ  of  error  dismissed,  as 
the  case  may  be.  *  *  *  It  is  further  estab- 
lished that  when  the  record  discloses  such 
other  and  completely  adequate  grounds  this 
court  commonly  does  not  inquire  whether 
the  decision  upon  them  was  or  w^as  not 
correct,  or  reach  a  federal  question  by  de- 
termining that  they  ought  not  to  have 
been  held  to  warrant  the  result.  *  *  *  Of 
course,  there  might  be  cases  where,  al- 
though the  decision  put  forward  other  rea- 
sons, it  would  be  apparent  that  a  federal 
question  was  involved  whether  mentioned 
or  not.  It  may  be  imagined  *  *  *  that  it 
might  appear  that  a  state  court  even  if,  os- 
tensibh^  deciding  the  federal  question  in  fa- 
vor of  the  plaintiff  in  error,  really  must  have 
been  against  him  upon  it,  and  was  seeking 
to  evade  the  jurisdiction  of  this  court.  If 
the  ground  of  decision  did  not  appear  and 
that  which  did  not  involve  a  federal  ques- 
tion was  so  palpably  unfounded  that  ft 
could  not  be  presumed  to  have  been  en- 
tertained, it  may  be  that  this  court  would 
take  jurisdiction."  Leathe  z'.  Thomas.  207 
U.  S.  93,  98,  52  L.  Ed.  118,  28   S.  Ct.  30. 

The  decision  of  a  state  court  that  the 
federal  questions  alleged  to  be  involved  in 
mandamus  proceedings  were  entirely  put 
out  of  the  case  by  the  facts  set  forth  in  the 
return  to  the  alternative  writ,  presenting  a 
question  obviously  not  of  a  federal  char- 
acter, will  not  be  reviewed  by  the  federal 
supreme  court,  where  there  is  nothing  in 
the  case  to  justify  a  suspicion  that  the  fed- 
eral questions  were  sought  to  be  avoided, 
or  were  avoided  by  giving  an  unreason- 
able construction  to  the  pleadings.  Van- 
dalia  R.  Co.  r.  South  Bend,  207  U.  S.  359, 
52  L.   Ed.  246,  28   S.   Ct.   130. 

No  federal  question  respecting  due  proc- 
ess of  law  or  full  faith  and  credit  which 
will  sustain  a  writ  of  error  from  the  fed- 
eral supreme  court  to  the  highest  court  of 
the  state  is  involved  in  a  suit  in  which  the 
state  court,  after  reversing  a  judgment  for 
defendant  on  the  ground  that  a  judgment 
of  a  federal  circuit  court,  set  up    as     res 


75 


579-585 


APPEAL  AND  ERROR. 


Vol.  I 


(3)    Where  Decision  Is  Based  on  Independent  Grounds, — See  note  66. 


judicata  in  a  special  replication  to  two  or 
lour  pleas  in  s^t-off,  is  binding,  decided  on 
rehearing  that,  conceding  the  judgment  of 
the  federal  court  to  be  binding  as  to  the 
two  pleas  to  which  the  replication  of  res 
judicata  applies,  judgment  for  defendant 
can  be  upheld  upon  the  other  two  pleas 
referring  to  earlier  stages  of  the  same 
transaction;  nor  does  it  matter  that  the 
federal  supreme  court  may  think  the  state 
court  wrong  in  believing  that  there  is  evi- 
dence to  support  these  pleas.  Leathe  v. 
Thomas,  207  U.  S.  93,  52  L.  Ed.  118,  28  S. 
Ct.  30. 

The  decision  of  a  state  court  will  not  be 
deemed  to  present  a  question  respecting 
due  process  of  law  which  will  sustain  a 
writ  of  error  from  the  supreme  court  of 
the  United  States,  on  the  theory  that  such 
decision  gave  retroactive  effect  to  a  stat- 
ute passed  since  the  argument  of  the  ap- 
peal before  the  state  court,  where  the  lan- 
guage of  the  court's  opinion  maj^  equally 
well  be  interpreted  as  a  declination  to  pass 
upon  a  question  not  necessary  to  the  de- 
cision, which  had  been  set  at  rest  for  the 
future  by  legislation.  Stickney  v.  Kelsey, 
209  U.  S.  419.   52  L.   Ed.  863.  28   S.   Ct.  508. 

579-46.  Was  necessarily  involved  in  the 
decision. — "This  case  comes  here  from  a 
state  court,  and,  of  course,  therefore  it 
must  appear  that  a  federal  question  neces- 
sarily was  involved  in  the  decision  before 
this  court  can  take  jurisdiction  or  under- 
take to  reverse  the  judgment  of  a  tribunal 
over  which  it  has  no  general  power.  It 
is  not  enough  that  a  right  under  the  con- 
stitution of  the  United  States  was  spe- 
cially set  up  and  claimed.  It  must  be  made 
manifest  either  that  the  right  was  denied 
in  fact,  or  that  the  judgment  could  not 
have  been  rendered  without  denying  it." 
Western  Union  Tel.  Co.  v.  Wilson,  213  U. 
S.  52,  53,  53  L.  Ed.  693,  29  S.  Ct.  403. 

The  refusal  of  the  state  court  to  permit 
the  filing  of  a  plea  setting  up  a  federal 
question  does  not  necessarily  involve  a  de- 
cision of  such  question  so  as  to  sustain  the 
appellate  jurisdiction  of  the  supreme  court 
of  the  United  States,  where  the  state  court 
may  have  refused  such  permission  either 
because  the  plea  was  not  filed  until  more 
than  nine  months  after  the  declaration,  and 
not  until  the  case  was  called  for  trial,  or 
because  such  plea,  which  went  in  terms  to 
the  whole  declaration,  and  prayed  judg- 
ment, was  clearly  bad  as  to  the  second 
count  in  the  declaration.  Western  Union 
Tel.  Co.  V.  Wilson,  213  U.  S.  52,  53  L.  Ed. 
693,  29  S.   Ct.  403. 

It  is  the  obvious  duty  of  counsel,  if  they 
wished  any  particular  construction  of  the 
Employers'  Liability  Act  of  April  22.  1908, 
to  put  the  request  in  such  definite  terms  as 
that  the  attention  of  the  court  might  be 
directed  to  the  point,  o.nd  the  record  here 


should  show  that  the  right  now  claimed 
was  the  right  "specially  set  up"  and  de- 
nied by  the  court.  "It  must  appear  on  the 
face  of  the  record  that  it  was  in  fact 
raised;  that  the  judicial  mind  of  the  court 
was  exercised  upon  it;  and  then  a  decision 
against  the  right  claimed  under  it."  Or, 
at  all  events,  it  must  appear  from  the 
record  that  there  was  necessarily  present  a 
definite  issue  as  to  the  correct  construc- 
tion of  the  act,  so  directly  involved  that 
the  court  could  not  have  given  the  judg- 
ment it  did  without  deciding  the  question 
against  the  contention  of  the  plaintiff  in 
error.  Seaboard  Air  Line  Railway  v. 
Duvall,  225  U.  S.  477,  56  L.  Ed.  1171,  32 
S.  Ct.  790. 

To  sustain  a  writ  of  error  from  the  fed- 
eral supreme  court  to  review  a  judgment 
of  the  highest  court  of  a  state  on  the 
ground  that  there  was  set  up  and  denied  a 
right,  privilege,  or  immunity  claimed  un- 
der a  federal  statute,  it  must  appear  from 
the  record  that  there  was  necessarilj'-  pres- 
ent a  definite  issue  as  to  the  correct  con- 
struction of  the  act  so  directly  involved 
that  the  state  court  could  not  have  given 
the  judgment  it  did  without  deciding 
against  the  contention  of  the  plaintiff  in 
error.  Seaboard  Air  Line  Railway  v.  Du- 
vall, 225  U.  S.  477,  56  L.  Ed.  1171,  32  S.  Ct. 
790. 

Federal  question  held  to  be  necessarily 
in  issue  and  decided. — The  objection  that 
the  federal  question  was  not  properly  and 
seasonabl}"  raised  in  the  state  courts  is  not 
available  to  defeat  the  jurisdiction  of  the 
supreme  court  of  the  United  States  of  a 
writ  of  error  to  the  highest  court  of  a 
state,  where  it  clearly  and  unmistakably 
appears  from  the  opinion  of  that  court  that 
the  federal  question  was  assumed  to  be  in 
issue,  was  decided  against  the  claim  of 
federal  right,  and  that  the  decision  of  the 
question  was  essential  to  the  judgment 
rendered.  Judgment,  Baltimore  &  O.  R. 
Co.  v.  Chambers  (1905),  76  N.  E.  91.  73 
Ohio  St.  16.  afilrmed.  Chambers  v.  Balti- 
more, etc..  R.  Co.,  207  U.  S.  142,  52  L.  Ed. 
143.  28   S.   Ct.  34. 

585-66.  Where  decision  is  based  upon  in- 
dependent grounds. — "According  to  the 
well-settled  doctrine  of  this  court  with 
regard  to  cases  coming  from  state  courts, 
imless  a  decision  upon  a  federal  question 
was  necessary  to  the  judgment  or  in  fact 
was  made  the  ground  of  it,  the  writ  of 
error  must  be  dismissed.  And  even  when 
an  erroneous  decision  upon  a  federal  ques- 
tion is  made  a  ground,  if  the  judgment 
also  is  supported  upon  another  which  is 
adequate  by  itself,  and  which  contains  no 
federal  question,  the  same  result  must 
follow  as  a  general  rule.  Moreover,  ordi- 
narily this  court  will  not  inquire  whether 
the  decision  upon  the  matter  not  subject 


76 


Vol.  I. 


APPEAL  AND  ERROR. 


585 


to  its  revision  was  right  or  wrong."  Ar- 
kansas, etc.,  R.  Co.  z'.  German  Xat.  Bank, 
207  U.  S.  270,  52  L.  Ed.  201,  28  S.  Ct.  78. 

The  supreme  court  will  not  review  a 
judgment  of  a  state  court  where  the  latter 
has  decided  the  case  on  a  sufficient  ground 
not  within  the  federal  objections  taken. 
Waters-Pierce  Oil  Co.  7,:  Texas,  Xo.  2,  212 
U.  S.  112,  53  L.  Ed.  431,  29  S.  Ct.  227; 
St.  Louis,  etc.,  R.  Co.  v.  Tyler,  212  U.  S. 
552,  53  L.  Ed.  649,  29  S.  Ct.  684. 

Where  the  disposition  of  federal  ques- 
tion was  not  necessary  to  the  determina- 
tion of  the  cause  and  the  judgment  is 
based  on  a  distinct  ground  or  grounds 
broad  enough  to  sustain  it.  over  which  the 
supreme  court  has  no  jurisdiction,  the 
writ  of  error  can  not  be  maintained.  Rog- 
ers V.  Jones,  214  U.  S.  196,  204,  53  L-  Ed. 
965.  29  S.  Ct.  635. 

If  the  record  shows  that  the  verdict  and 
judgment  of  a  state  court  can  stand  upon 
other  grounds,  free  from  objection  so  far 
as  federal  rights  are  concerned,  no  federal 
question  is  presented.  Judgment  (Tex. 
Civ.  App.  1908)  106  S.  W.  918,  affirmed. 
Waters-Pierce  Oil  Co.  v.  Texas,  No.  1,  212 
U.  S.  86,  53  L.  Ed.  417,  29  S.  Ct.  220. 

When  a  state  court  decides  a  case  upon 
two  grounds,  one  federal  and  the  other 
nonfederal,  the  federal  supreme  court  will 
not  disturb  the  judgment  if  the  nonfed- 
eral ground,  fairly  construed,  sustains  the 
decision.  Berea  College  <••.  Kentucky,  211 
U.  S.  45,  53,  53  L.  Ed.  81,  29  S.  Ct.  33. 

Where  the  supreme  court  of  the  state 
rested  its  judgment  upon  principles  of 
common  law  as  it  understood  them,  the 
federal  supreme  court  should  go  no  far- 
ther, although  that  court  also  upheld  and 
relied  upon  a  statute  claimed  to  be  repug- 
nant to  the  federal  constitution.  Arkan- 
sas, etc.,  R.  Co.  V.  German  Nat.  Bank,  207 
U.   S.  270.  52  L.  Ed.  201,  28  S.  Ct.  78. 

Dismissal  of  suit  to  remove  cloud  from 
title. — A  decree  of  a  state  court  dismissing 
a  bill  in  a  suit  to  remove  a  cloud  is  not 
reviewable  in  the  supreme  court  because 
of  a  ruling  that  execution  sale  by  a  federal 
marshal,  relied  on  as  foundation  of  title, 
was  made  at  the  wrong  place,  where  it  is 
also  based  on  grounds  that  the  alleged 
return  on  the  fi.  fa.  did  not  describe  lands 
in  controversy,  that  title  had  not  been  de- 
raigned  as  required  by  the  state  statute 
under  which  suit  was  brought,  and  that 
suit  was  barred  by  the  state  statute  of 
limitations.  Rogers  n.  Jones,  214  U.  S.  196, 
53   L.   Ed.   965.  29   S.   Ct.  635. 

No  federal  question  respecting  due  proc- 
ess of  law  or  full  faith  and  credit  which 
will  sustain  a  writ  of  error  from  the  fed- 
eral supreme  court  to  the  highest  court  of 
a  state  is  involved  in  a  suit  in  which  the 
state  court,  after  reversing  a  judgment  for  * 
defendant  on  the  ground  that  a  judgment 
of  a  federal  circuit  court,  set  up  as  res 
judicata  in  a  special  replication  to  two  of 
four    pleas  in    set-ofT,    is    binding,    decided 


on  rehearing  that,  conceding  the  judg- 
ment of  the  federal  court  to  be  binding  as 
to  the  two  pleas  to  which  the  replication 
of  res  judicata  applies,  judgment  for  de- 
fendant can  be  upheld  upon  the  other  two 
pleas  referring  to  earlier  stages  of  the 
same  transaction;  nor  does  it  matter  that 
the  federal  supreme  court  may  think  the 
state  court  wrong  in  believing  that  there 
is  evidence  to  support  these  pleas.  Leathe 
v.  Thomas,  207  U.  S.  93,  52  L.  Ed.  118,  28 
S.   Ct.  30. 

The  question  of  the  validity,  under  the 
due  process  of  law  clause  of  Const.  U.  S. 
Amend.  14,  of  a  tax  sale  made  upon  a  no- 
tice published  only  in  a  Sunday  newspaper, 
is  not  open  on  a  writ  of  error  from  the 
supreme  court  of  the  United  States  to  the 
highest  court  of  a  state,  whose  decision 
upholding  the  tax  title  was  based  upon  the 
grounds  that  a  state  statute  made  the  tax 
deed,  which,  upon  its  face,  was  a  valid  in- 
strument, prima'  facie  evidence  of  the 
sufficiency  of  the  notice,  and  that  posses- 
sion under  such  deed  for  the  prescribed 
period  met  the  requirements  of  the  state 
statute  of  limitations.  Judgment,  Wood 
v.  McCombe  (1906),  86  P.  319,  37  Colo.  174, 
affirmed.  Elder  z\  Wood,  208  U.  S.  226,  52 
L.  Ed.  464,  28  S.  Ct.  263. 

A  judgment  of  a  state  court  against 
a  carrier  for  the  value  of  a  shipment  of 
cotton  which  it  delivered  without  the  sur- 
render of  the  bills  of  lading  is  not  review- 
able in  the  supreme  court  of  the  United 
States,  although  the  state  court  refers  to, 
and  upholds,  over  an  objection  of  repug- 
nancy to  the  federal  constitution,  a  state 
statute  forbidding  delivery  under  such 
circumstances,  where  the  court  treats  the 
contract  of  shipment  itself  as  requiring  a 
delivery  to  shipper's  order,  and  only  upon 
the  production  of  the  bills  of  lading,  prop- 
erly indorsed.  Arkansas,  etc.,  R.  Co.  v. 
German  Nat.  Bank.  207  U.  S.  270,  52  L- 
Ed.  201,  28  S.  Ct.  78. 

The  validity  of  Acts  Ky.  1904.  p.  181,  c. 
85,  so  far  as  it  prohibits  domestic  corpora- 
tions from  teaching  white  and  negro  pu- 
pils in  the  same  institution,  can  not  be 
deemed  affected  by  its  possible  invalidity 
under  the  federal  constitution  as  to  indi- 
viduals, where  the  highest  state  jtourt 
considers  the  act  separable,  and,  while 
sustaining  it  as  an  entirety,  gives  an  inde- 
pendent reason  which  applies  only  to 
corporations.  Judgment  (1906),  94  S.  W. 
623.  123  Ky.  209,  affirmed.  Berea  College 
V.  Kentucky,  211  U.  S.  45,  53  L.  Ed.  81.  29 
S.    Ct.   33. 

Validity  of  paving  assessment  law. — 
A  federal  question  respecting  the  validity 
of  a  paving  assessment  against  a  street 
railway  company  is  not  open  on  writ  of 
error  from  the  supreme  court  of  the 
United  States  to  a  state  court,  where  the 
latter  court  based  its  ruling  that  the  ques- 
tion had  no  standing  in  the  case  upon  its 
view  as  to  the  scope  of  the  application  of 


593 


APPEAL  AND  ERROR. 


Vol.  I. 


Determination  of  Question, — Doubtless  the  federal  supreme  court  is  not 
concluded  by  the  ruling  of  the  state  court,  and  must  determine  for  itself  whether 
there  is  really  involved  any  federal  question  which  will  entitle  it  to  review  the 
judgment.  A  case  may  arise  in  which  it  is  apparent  that  a  federal  question  is 
sought  to  be  avoided  or  is  avoided  by  giving  an  unreasonable  construction  to 
pleadings.'^^^ 

(4)   Questions  Must  Be  Real  and  Not  Fictitious  or  Frivolous. — See  note  78. 


the  railway  company  for  relief  from  the 
assessment,  and  of  the  pleadings,  and  it  is 
not  contended  that  such  view  is  erroneous. 
Judgment  (1903),  53  A.  9G0,  75  Conn.  442, 
affirmed.  Fair  Haven,  etc.,  R.  Co.  v.  New 
Haven.  203  U.  S.  379,  51  L.  Ed.  237,  27  S. 
Ct.  74. 

593-75a.  Determination  of  question. 
— Vandalia  R.  Co.  v.  South  Bend,  207  U. 
S.  359,  367,  52  L.  Ed.  246,  28  S.   Ct.  130. 

593-78.  Additional  tax  as  impairing  con- 
tract, etc. — Questions  respecting  the  im- 
pairment of  contract  obligations  and  the 
denial  of  due  process  of  law  because  of 
the  additional  burden  of  taxation  to  which 
the  citizens  and  taxpayers  of  a  lesser  city, 
annexed  under  the  authority  of  Act  Pa. 
Feb.  7,  1906,  §§  1-9  (P.  L.  7-11),  to  an  ad- 
joining and  larger  city,  will  be  subjected, 
are  not  so  unsubstantial  and  devoid  of  all 
color  of  merit  as  to  require  the  dismissal 
of  a  writ  of  error  from  the  supreine  court 
of  the  United  States  to  a  state  court. 
Judgment,  In  re  City  of  Pittsburg,  66  A. 
348,  217  Pa.  227;  Appeal  of  Hunter,  Id., 
affirmed.  Hunter  v.  Pittsburgh,  207  U.  S. 
161,  52  L.  Ed.  151,  28  S.  Ct.  40. 

Grounds  for  forfeiting  corporate  fran- 
chise.— Contentions  that  immunities  se- 
cured by  Const.  U.  S.  Amend.  14,  are 
violated  by  a  decision  of  a  state  court, 
that  forfeiture  of  a  corporate  franchise 
may  be  declared  for  nonuser,  and  by  its 
ruling,  following  its  conception  of  the 
rules  of  pleading,  that  the  charges  of  non- 
user  contained  in  an  information  in  the 
nature  of  quo  warranto  stand  as  confessed 
under  the  pleadings,  so  as  to  sustain  a 
motion  for  final  judgment  of  ouster,  are 
too  frivolous  to  serve  as  the  basis  of  a 
writ  of  error  from  the  federal  supreme 
court  to  a  state  court.  Delmar  Jockey 
Club  T'.  Missouri,  210  U.  S.  324,  52  L.  Ed. 
1080,  28  S.  Ct.  732. 

Validity  of  condemnation  proceedings. 
— A  writ  of  error  to  a  state  court  to  re- 
view a  judgment  of  its  highest  court,  af- 
firming a  judgment  of  a  lower  court  in  that 
state  condemning  for  public  use  land  in- 
cluded in  the  Utah  enabling  act,  over  the 
objection  that  the  legal  title  was  in  the 
United  States  when  the  proceedings  were 
begun,  will  be  dismissed  for  want  of  juris- 
diction. Box  Elder  Power,  etc.,  Co.  v. 
Brigham,  220  U.  S.  603,  55  L.  Ed.  604,  31 
S.  Ct.  716,  citing  Mutual  Life  Ins.  Co.  v. 
McGrew,  188  U.  S.  291,  308,  47  L.  Ed.  480,  23 
S.  Ct.  375;  Farrell  v.  O'Brien,  199  U.  S.  89, 
100,  50  L.  Ed.  101,  25  S.  Ct.  727;  Kaufman 


&  Sons  Co.  V.  Smith,  216  U.  S.  610,  54  L- 
Ed.  636,  30  S.  Ct.  419. 

Validity  of  statute  providing  for  venue 
of  suit  against  corporations. — A  writ  of 
error  to  the  highest  state  court  to  review 
its  judgment  affirming,  after  ordering  a 
remission  of  part  of  the  damages,  a  judg- 
ment of  the  lower  court  in  that  state  in 
favor  of  the  plaintiff  in  an  action  for  libel, 
in  which  the  corporate  defendant  asserted 
the  invalidity,  under  the  due  process  of 
law  and  the  equal  protection  of  the  laws, 
clauses  of  the  14th  amendment  to  the  fed- 
eral constitution,  of  a  state  statute  provid- 
ing that  suits  against  corporations  may  be 
commenced  either  in  the  county  where 
the  cause  of  action  accrued,  or  in  any 
county  where  such  corporation  shall  have 
or  usually  keep  an  office  or  agent  for  the 
transaction  of  their  usual  or  customary 
liusiness,  will  be  dismissed  for  want  of  ju- 
risdiction. Globe  Printing  ,Co.  v.  Cook, 
220  U.  S.  603,  55  L.  Ed.  604,  31  S.  Ct.  717, 
citing  Farrell  v.  O'Brien,  199  U.  S.  89,  100, 
50  L.  Ed.  101,  25  S.  Ct.  727;  Kaufman  & 
Sons  Co.  V.  Smith,  216  U.  S.  610,  54  L.  Ed. 
636,  30  S.  Ct.  419;  Waters-Pierce  Oil  Co. 
z:  Texas,  No.  2,  212  U.  S.  112,  116.  53  L.  Ed. 
431,  29  S.  Ct.  227;  Kansas  City  Star  Co.  v. 
Julian,  215  U.  S.  589,  590,  54  L.  Ed.  340,  30 
S.  Ct.  406. 

Suit  to  set  aside  decree  of  foreclosure. 
— A  writ  of  error  to  the  state  court  to  re- 
view a  decree  of  its  highest  court  affirm- 
ing the  decree  in  a  lower  court  of  the  state 
in  favor  of  defendants  in  a  suit  to  set  aside 
certain  foreclosure  decrees  for  want  of  ju- 
risdiction, fraud,  and  certain  irregularities 
in  the  proceedings  will  be  dismissed  for 
frivolousness.  Venner  v,  Denver  Union 
Water  Co.,  219  U.  S.  583,  55  L.  Ed.  346,  31 
S.  Ct.  472. 

Damages  for  removing  timber  from 
state  lands. — A  writ  of  error  to  the  high- 
est state  court  to  review  a  judgment  re- 
versing a  judgment  of  the  trial  court  and 
awarding  damages  to  the  state  for  remov- 
ing timber  from  state  lands  after  the  expi- 
ration of  a  permit,  will  be  dismissed  for 
want  of  jurisdiction,  although  it  is  con- 
tended upon  rehearing  that  such  judg- 
ments violated  the  due  process  law,  equal 
protection  of  the  laws,  and  contract  clauses 
of  the  federal  constitution,  and  took  prop- 
'erty  without  compensation.  Rat  Portage 
Lumber  Co.  v.  Minnesota,  220  U.  S.  606, 
55  L.  Ed.  606,  31  S.  Ct.  718,  citing  First 
Nat.  Bank  7;.  City  Council,  215  U.  S.  341, 
346,  54  L.  Ed.  223,  30  S.  Ct.  152;  Rogers 


78 


Vol.  I. 


APPEAL  AND  ERROR. 


593-601 


Where  federal  questions  clearly  presented  in  the  answer  in  the  state  court 
and  the  decree  could  not  have  been  made  without  deciding  them,  they  are  sub- 
stantial and  important."^'' 

Limitation  of  General  Rules. — See  note  88. 

(lOj  Time  and  Manner  of  Shoiving  Existence  of  Federal  Question — aa.  In 
General. — See  note  2.  ^^ 

bb.  Must  Be  "Specially  Set  Up  or  Claimed" — aaa.  In  General. — See  note  9. 


V.  Clark  Iron  Co.,  217  U.  S.  589,  54  L.  Ed. 
895,  30  S.  Ct.  693;  Farrell  v.  O'Brien,  199 
U.  S.  89,  100,  50  L.  Ed.  lOl,  25  S.  Ct.  727; 
Griffith  V.  Connecticut,  218  U.  S.  563,  571, 
54  L.  Ed.  1151,  31  S.  Ct.  132;  St.  Paul  Gas 
Light  Co.  V.  St.  Paul,  181  U.  S.  142,  151,  45 
L.   Ed.  788,  21    S.   Ct.   575. 

Suit  to  quiet  title. — Error  to  a  state 
court  to  review  a  decree  dismissing  a  pe- 
tition in  one  suit  to  quiet  title,  and  grant- 
ing the  relief  sought  in  another  such  suit, 
will  be  dismissed  as  raising  a  frivolous 
federal  question.  Collier  v.  Smaltz,  223  U. 
S.  710,  56  L.  Ed.  624,  32  S.  Ct.  519,  citing 
Hannis  Distilling  Co.  z\  Baltimore,  216  U. 
S.  2S5,  288,  54  L.  Ed.  482,  30  8.  Ct.  326; 
Turner  v.  New  York,  168  U.  S.  90,  42  L. 
Ed.  392,  18  S.  Ct.  38;  Terry  v.  Anderson, 
95  U.  S.  628,  24  L.  Ed.  365. 

593-78a.  Where  decree  necessarily  de- 
cided question. — Wabash  R.  Co.  v.  Adel- 
bert  College,  208  U.  S.  38,  52  L.  Ed.  379, 
28  S.  Ct.  182. 

596-88^  .  Limitations  of  general  rule. — ■ 
It  is  not  necessary  to  lay  the  foundation 
for  jurisdiction  that  the  claims  of  federal 
rights  asserted  sliould  be  well  founded;  it 
is  enough  if  they  are  substantial  claims 
of  federal  rights  within  the  statute,  and 
such  as  were  duly  asserted  and  directly  or 
necessarily  denied  in  the  judgment  and 
decision  of  the  state  court.  United  States 
V.  Ansonia  Brass,  etc.,  Co.,  218  U.  S.  452, 
463,  54  L.   Ed.  1107,  31  S.  Ct.  49. 

A  writ  of  error  to  review  a  judgment 
of  the  highest  court  of  a  state  will  not  be 
dismissed  on  the  ground  that  the  federal 
question  relied  upon  to  confer  jurisdiction 
has  been  so  conclusively  foreclosed  by 
prior  decisions  of  the  federal  supreme 
court  as  to  cause  it  to  be  frivolous,  where 
analysis  and  exposition  are  necessary  in 
order  to  make  clear  the  decisive  effect  of 
such  prior  decisions  upon  the  issue  pre- 
sented, and  there  is  some  conflict  in  the 
opinions  of  the  various  state  courts  of  last 
resort  upon  the  question,  and  a  division 
of  opinion  in  the  court  below.  Louisville, 
etc.,  R.  Co.  V.  Melton,  218  U.  S.  36,  54  L. 
Ed.  921,  30  S.  Ct.  676,  affirming  judgment 
(1907),  105  S.  W.  366,  127  Ky.  276. 

The  contention  that  full  faith  and  credit 
were  not  given  to  the  judgment  of  a  fed- 
eral court  dismissing  an  action  by  a  for- 
eign corporation  because  of  its  failure  to 
register  within  the  state  before  entering 
into  the  contract  in  suit,  by  a  decision  of 
a   state   court  holding  that   such  judgment 


was  not  a  bar  to  a  second  action  between 
the  same  parties  upon  the  same  contract, 
where  the  corporation  had  brought  itself 
within  the  curative  provisions  of  Act  Pa 
May  23,  1907  (P.  L.  205),  is  not  so  far  friv- 
olous as  not  to  serve  as  the  basis  of  a  writ 
of  error  from  the  federal  supreme  court 
to  the  state  court.  West,  etc.,  R.  Co. 
V.  Pittsburgh  Constr.  Co.,  219  U.  S. 
92.  55  L.  Ed.  107,  31  S.  Ct.  196,  affirming 
judgment  Pittsburg  Const.  Co.  v.  West 
Side  Belt  R.  Co.  (1910),  75  A.  1029,  227 
Pa.  90. 

599-2.  Time  and  manner  of  showing 
question. — An  affidavit  in  support  of  a  pe- 
tition for  rehearing  in  the  highest  state 
court,  stating  that,  in  the  brief  as  well  as 
upon  oral  argument,  a  specified  federal 
question  had  been  presented  and  discussed, 
will  not  support  a  wrif  of  error  from  the 
federal  supreme  court,  where  the  state 
court  denied  the  petition,  with  the  state- 
ment that  no  federal  question  had  been 
raised  in  that  court,  which  may  be  con- 
strued as  denying  that  any  such  matter 
was  brought  to  its  attention,  as  stated  in 
the  affidavit,  or  as  holding  that  it  presented 
no  federal  question.  Judgment  (1907) 
St.  John  V.  Andrews  Institute  for  Girls, 
102  N.  Y.  S.  808,  117  App.  Div.  698,  af- 
firmed. Smithsonian  Institution  v.  St. 
John,  214  U.  S.  19,  53  L.  Ed.  892,  29  S.  Ct. 
601. 

601-9.  A  right  or  immunity  under  a  stat- 
ute of  the  United  States  is  "specially  set 
up  and  claimed"  in  the  state  court  within 
the  meaning  of  U.  S.  Rev.  Stat.,  §  709,  U. 
S.  Comp.  Stat.  1901,  p.  575,  where  a  rail- 
road company  insists,  throughout  garnish- 
ment proceedings  brought  against  it  for 
charges  in  excess  of  a  special  rate  en- 
tered into  with  the  garnishment  debtor 
alone,  that  no  recovery  could  be  had 
against  it  consistently  with  the  interstate 
commerce  act,  as,  in  disregarding  the 
agreement  for  the  special  rate,  it  only  con- 
formed to  the  provisions  of  such  act  gov- 
erning rates  to  be  applied  to  interstate 
shipments.  "This  was  an  adequate  asser- 
tion of  a  right  or  immunity  under  that  act, 
for  it  named  the  act,  indicated  wherein  it 
was  claimed  to  be  applicable,  and  invoked 
its  protection.  Nutt  v.  Knut.  200  U.  S. 
12.  50  L.  Ed.  348.  26  S.  Ct.  216;  Texas,  etc., 
R.  Co.  V.  Abilene,  etc.,  Oil  Co..  204  U.  S. 
426.  51  L.  Ed.  553,  27  S.  Ct.  350."  Kansas 
City,  etc.,  R.  Co.  v.  .Mbers  Comm.  Co., 
223  U.  S.  573,  56  L.   Ed.  556,  32   S.   Ct.  316. 


r9 


606-619 


APPEAL  AND  ERROR. 


Vol.  I. 


General  Allegations. — See  note  20. 

ee.  Certificate  of  Presiding  Judge  of  State  Court— ddd.  Weight  and  Suffi- 
ciency.— See  note  57.  * 

iL  Time  of  Claiming  Federal  Question— 2.2.2..  In  General— "^ht  appellate 
jurisdiction  of  the  federal  supreme  court  over  a  state  court  cannot  be  based 
upon  the  supposed  denial  of  a  federal  right  which  was  not  urged  in  the  trial 
court,  or  called  to  the  attention  of  or  decided  by  the  state  appellate  court.^^^ 
The  objection  that  no  federal  right  was  "specially  set  up  and  claimed"  within 
the  meaning  of  Rev.  St.  U.  S.,  §  709  [U.  S.  Comp.  .St.  1901,  p.  575],  governing 
the  appellate  jurisdiction  of  the  federal  supreme  court  over  state  courts,  can 
not  successfullv  be  maintained,  where  judicial  proceedings  in  New  Jersey  were 
clearly  relied  upon  in  New  York  by  executors  in  an  "appeal  to  the  surrogate" 
as  a  defense  to  the  assessment  of  the  New  York  transfer  tax,  although  such 
right  was  not  in  terms  stated  to  be  one  claimed  under  the  federal  constitution, 
especially  where  the  constitutional  right  was  specifically  claimed  in  writing  while 
the  surrogate  still  had  the  "appeal"  under  consideration,  and  its  denial  was 
made  the  subject  of  exceptions.®^'' 

aaa)^.  In  Assignments  of  Error  in  Federal  Supreme  Court. — It  is  too  late  to 
raise  the  federal  question  for  the  first  time  in  the  assignments  of  error  in  the 
federal  supreme  court.®^^ 


606-20.  General  allegations. — A  conten- 
tion that  certain  instructions  to  the  jury 
in  a  criminal  case  in  effect  deprived  the 
accused  of  his  liberty  without  due  process 
of  law  does  not,  of  itself,  raise  a  federal 
question,  under  Const.  U.  S.  Amend.  14, 
with  sufficient  distinctness  to  sustain  a 
writ  of  error  from  the  federal  supreme 
court  to  a  state  court.  Thomas  v.  Iowa, 
209  U.  S.  258,  52  L.  Ed.  782,  28  S.  Ct.  487. 

Something  more  than  a  vague  and  in- 
ferential suggestion  of  a  right  under  the 
constitution  of  the  United  States  must  be 
presented  to  the  state  courts  to  give  us 
the  limited  authority  to  review  their  judg- 
ments, which  exists  under  the  constitu- 
tion and  is  regulated  by  §  709,  Rev.  Stat. 
A  mere  claim  in  the  court  below,  that 
there  has  been  a  denial  of  due  process  of 
law,  does  not  of  itself  raise  a  federal  ques- 
tion with  sufficient  distinctness  to  give  us 
jurisdiction  to  consider  whether  there  has 
been  a  violation  of  the  fourteenth  amend- 
ment of  the  constitution.  Thomas  v. 
Iowa,  209  U.  S.  258,  263,  52  L.  Ed.  782,  28 
S.  Ct._487. 

Assignments  of  error  which  simply  al- 
lege in  various  forms  that  the  state  court 
erred  in  its  decision  of  the  cause  present 
no  federal  question  for  consideration  bj' 
the  supreme  court  of  the  United  States  on 
a  writ  of  error  to  the  state  court.  Stick- 
ney  v.  Kelsey,  209  U.  S.  419,  52  L.  Ed.  863. 
28  S.  Ct.  508. 

617-57.  Weight  and  sufficiency  of  cer- 
tificate.— The  certificate  of  the  chief  jus- 
tice of  the  highest  court  of  a  state  can  not 
cure  the  entire  failure  of  the  record  to 
show  that  a  federal  question  was  so  raised 
and  decided  as  to  sustain  a  writ  of  error 
from  the  supreme  court  of  the  United 
States.'   Seaboard  Air  Line  Railway  v.  Du- 


vall,  225  U.  S.  477,  56  L.  Ed.  1171,  32  S.  Ct. 
790. 

"Such  a  certificate  is,  however,  not  suf- 
ficient to  confer  jurisdiction  to  review  the 
judgment  of  a  state  court  under  §  709, 
Rev.  Stat.  (U.  S.  Comp.  Stat.  1901,  p.  575). 
That  there  was  set  up  and  denied  some 
claim  or  right  under  the  constitution  or  a 
statute  of  the  United  States  must  appear 
upon  the  record;  and  such  certificate  is 
only  of  value  to  make  more  definite  or 
certain  that  the  federal  right  was  definitely 
asserted  and  decided.  Sayward  v.  Denny, 
158  U.  S.  180,  183,  39  L.  Ed.  941,  15  S.  Ct. 
777;  Louisville,  etc.,  R.  Co.  v.  Smith,  etc., 
Co.,  204  U.  S.  551,  51  L.  Ed.  612.  27  S.  Ct. 
401."  Seaboard  Air  Line  Railway  v.  Du- 
vall,  225  U.  S.  477,  56  L-  Ed.  1171,  32  S.  Ct. 
790. 

619-64a.  Time  of  claiming  federal  ques- 
tion.— Cincinnati,  etc.,  R.  Co.  v.  Slade,  216 
U.   S.   78.  54  L.   Ed.  390.  30  S.   Ct.  230. 

619-64b.  Claiming  right  while  surro- 
gate had  "appeal"  under  consideration. — 
Order,  In  re  Tilt's  Estate  (1905)  75  N.  E. 
1134,  182  N.  Y.  557.  reversed.  Tilt  v.  Kel- 
sey, 207  U.  S.  43.  52  L.  Ed.  95,  28   S.  Ct.  1. 

619-65a.  In  assignment  of  error  in  fed- 
eral supreme  court. — Thomas  v.  Iowa.  209 
U.   S.  258,  52   L.   Ed.  782,  28  S.  Ct.  487. _ 

A  federal  question  which  will  sustain  a 
writ  of  error  from  the  federal  supreme 
court  to  a  state  court  can  not  be  first  raised 
in  the  assignment  of  errors  in  the  federal 
court.  Mailers  v.  Commercial  Loan,  etc., 
Co.,  216  U.  S.  613,  54  L.  Ed.  638,  30  S.  Ct. 
438. 

To  lay  the  foundation  for  right  to  re- 
view a  judgment  of  a  state  court  it  is  nec- 
essary to  bring  the  federal  question  in 
some  proper  manner  to  the  consideration 
of    the    state    court   whose   judgment    it  is 


80 


Vol.  I. 


APPEAL  AND  ERROR. 


623-627 


iii.    Oil  Second  Appeal. — See  note  79. 

kkk.    /;/  Petition  for  Writ  of  Error  to  This  Court. — See  note  83. 
mmm.    In  Petition  for  Rehearing — aaaa.    In   General. — See  note  86. 
bbblx    Qualifications  of  General  Rule. — See  note  92. 


sought  to  review;  if  this  is  not  done,  the 
federal  question  can  not  be  originated  by 
assignments  of  error  in  the  federal  su- 
preme court.  If  the  federal  right  asserted 
comes  within  the  third  class  named  in  § 
709,  Rev.  Stat.,  wherein  a  right,  title,  priv- 
ilege or  immunity  is  claimed  under  the 
United  States,  and  the  decision  is  against 
such  right,  title,  privilege  or  immunity. 
The  statute  requires  that  such  right  or 
privilege  must  be  specifically  set  up  and 
claimed  in  the  state  court.  Chesapeake, 
etc.,  R.  Co.  V.  McDonald,  214  U.  S.  191, 
192,  53   L.  Ed.  963,  29  S.  Ct.  546. 

The  assignments  of  error  in  the  federal 
supreme  court  can  not  cure  the  failure  of 
the  record  in  the  state  court  to  show  that 
a  question  w^as  there  raised  and  decided  of 
the  character  described  in  Rev.  Stat.,  §  709 
(U.  S.  Comp.  St.  1901,  p.  575),  govern- 
ing writs  of  error  from  the  federal  su- 
preme court  to  a  state  court.  Appleby  v. 
Buffalo,  221  U.  S.  524,  55  L.  Ed.  838,  31  S. 
Ct.  699,  affirming  judgment  (1907)  In  re 
City  of  Bufifalo,  81  N.  E.  954.  189  N.  Y.  163. 
and  which  reverses  (1906)  101  N.  Y.  S. 
966. 

623-79.  On  second  appeal. — The  federal 
supreme  court  has  no  jurisdiction  or  a  writ 
of  error  to  a  state  court  in  a  case  in 'which 
the  only  suggestion  that  a  federal  ques- 
tion was  involved  was  put  forward  after 
the  highest  state  court  had  affirmed,  on  a 
second  appeal,  a  judgment  rendered  by  the 
court  below  in  strict  obedience  to  its  man- 
date, compliance  with  such  mandate  be- 
ing, in  fact,  the  only  question  open  to  and 
determined  by  the  highest  court.  Bonner 
V.  Gorman,  213  U.  S.  86,  53  L.  Ed.  709,  29 
S.   Ct.  483. 

624-83.  It  is  too  late  to  raise  the  federal 
question  for  the  first  time  in  the  petition 
for  writ  of  error  from  the  federal  supreme 
court.  Thomas  v.  Iowa.  209  U.  S.  2'58,  52 
L.  Ed.  782.  28   S.  Ct.  487. 

624-86.  In  petition  for  rehearing. — "This 
court  has  decided  many  times  that  it  is  too 
late  to  raise  a  federal  question  for  the 
first  time  in  a  petition  for  rehearing  in  the 
court  of  last  resort  of  a  state  after  that 
court  has  pronounced  its  final  decision. 
*  *  *  It  is  true  that  we  have  also  decided 
that  if  the  court  entertains  the  motion  and 
passes  on  the  federal  question,  we  will  re- 
view its  decision."  MsCorquodale  z\ 
Texas,  211  U.  S.  432.  437.  52  L.  Ed.  269,  29 
S.  Ct.  146;  Missouri  Pac.  R.  Co.  v.  Lessen- 
den,  225  U.  S.  696,  56  L-  Ed.  1262.  32  S.  Ct. 
838,  citing  Waters-Pierce  Oil  Co.  r.  Texas. 
No.  2,  212  U.  S.-  112,  118.  53  L.  Ed.  431,  29 
S.  Ct.  227. 


Where  a  federal  question  was  raised  for 
the  first  time  on  petition  for  rehearing  in 
the  supreme  court  of  the  state  and  that 
court  declined  to  pass  on  it,  writ  of  error 
dismissed.  Clay  Center  Elect.,  etc.,  Co. 
V.  Clay  Center,  212  U.  S.  564.  53  L.  Ed. 
653,  29   S.  Ct.  690. 

627-92.  Qualification  of  rule.— It  has 
been  many  times  held  in  the  federal  su- 
preme court  that  an  attempt  to  introduce 
a  federal  question  into  the  record  for  the 
first  time  by  a  petition  for  rehearing  is  too 
late.  There  is  an  exception  to  this  rule 
when  it  appears  that  the  court  below  en- 
tertained the  motion  for  rehearing,  and 
passed  upon  the  federal  question.  But  it 
must  appear  that  such  federal  question 
was  in  fact  passed  upon  in  considering  the 
motion  for  rehearing;  if  not,  the  general 
rule  applies.  Eorbes  v.  State  Council,  216 
U.  S.  396,  399,  54  L.  Ed.  534,  30  S.  Ct.  295. 

The  federal  supreme  court  has  jurisdic- 
tion of  a  writ  of  error  to  the  highest  state 
court  in  a  case  in  which  federal  questions 
were  first  raised  by  a  petition  for  rehear- 
mg,  where  the  court  entertained  the  peti- 
tion and  decided  the  question  so  pre- 
sented. Illinois  Cent.  R.  Co.  v.  Kentucky, 
218  U.  S.  551,  54  L.  Ed.  1147,  31  S.  Ct.  95, 
affirming  judgment  (1908)  108  S.  W.  245, 
128  Ky.  268. 

A  federal  question  was  raised  in  time 
to  sustain  a  writ  of  error  from  the  su- 
preme court  of  the  United  States  to  a 
state  court,  where  it  was  distinctly  pre- 
sented in  a  petition  to  the  state  court  for 
a  rehearing,  was  considered  by  that  court, 
and  was  decided  adversel)'-  to  the  plaintifif 
in  error.  Judgment  (Tex.  Civ.  App.  1906) 
95  S.  W.  645,  affirmed.  Sullivan  v.  Texas, 
207  U.   S.  416,  52  L.  Ed.  274.  28  S.  Ct.  215. 

A  federal  question  first  raised  by  a  peti- 
tion for  rehearing  in  the  highest  state 
court  is  open  for  review  in  the  federal  su- 
preme court  on  writ  of  error  to  the  state 
court,  if  that  court  considered  such  ques- 
tion in  denying  the  petition.  Kentucky 
Union  Co.  v.  Kentuck,v.  219  U.  S.  140,  55 
L.  Ed.  137,  31  S.  Ct.  171,  affirming  judg- 
ments (1907)  106  S.  W.  260,  127  K}'.  667, 
and  (1908)  108  S.  W.  931,  128  Ky.  610,  111 
S.  W.  362,  33  Ky.  Law  Rep.  857. 

An  order  of  the  highest  state  court, 
made  in  passing  upon  a  petition  for  re- 
hearing, which  recites  that,  "on  mature 
consideration,"  the  prayer  of  said  petition 
is  denied,  does  not  show  that  the  court 
passed  upon  the  federal  questions  first 
raised  by  such  petition,  so  as  to  sustain  a 
writ  of  error  from  the  supreme  court  of 
the  United  States.     Forbes  v.  State  Coun- 


12    U    S    Enc— 6 


81 


628-640 


APPEAL  AND  ERROR. 


Vol.  I. 


000.    Raising  Federal  Question  for  First  Time  in  This  Court. — See  note  97. 

q.  Decisions  Reviezvuble — (2  1/5)  Denial  of  Defenses  Claimed  under  Stat- 
utes of  Territories.— Where  suit  is  brought  in  a  state  court,  a  claim  of  defeiise 
under  the  provisions  of  a  territorial  statute  is  a  claim  of  federal  right,  which, 
when  adversely  adjudicated,  gives  jurisdiction  to  the  federal  supreme  court  to 
review  the  judgment.^^^  Thus,  a  claim  of  immunity  under  a  territorial  act, 
because  of  the  failure  of  the  plaintiff  in  error  to  comply  with  its  provisions  as 
to  the  affidavit  within  ninety  days,  etc.,  presents  a  federal  question  within  the 
meaning  of  §  709  of  the  Revised  Statutes.^sb 

(2  2/5)  Claim  of  Right  under  Safety  Appliance  Act. — Whether  or  not  leg- 
islative power  is  unconstitutionally  delegated  to  the  American  Railway  Asso- 
ciation and  the  Interstate  Commerce  Commission  by  the  provision  of?  Safety 
Appliance  Act  March  2,  1893,  c.  196,  §  5,  27  Stat.  531  (U.  S.  Comp.  St.  1901, 
p.  3174),  that,  after  a  date  named,  only  cars  with  drawbars  of  uniform  height 
shall  be  used  in  interstate  commerce,  and  that  the  standard  shall  be  fixed  by 
the  association  and  declared  by  the  commission,  is  a  federal  question  within 
the  meaning  of  Rev.  St.  U.  S.,  §  709  (U.  S.  Comp.  St.  1901,  p.  575).  governing 
writs  of  error  from  the  supreme  court  of  the  United  States  to  state  courts. ^■^'= 

(2  3/5)  Denial  of  Rights  under  the  Copyright  Laivs. — A  decision  of  a  state 
court  enforcing  the  exclusive  common-law  performing  rights  of  the  owners  of 
an  unprinted  and  unpublished  play  as  against  the  owner  of  a  copyrighted  adap- 
tion substantially  identical  with  the  original  play,  who  stood  upon  his  copyright, 
denies  a  federal  right  specially  set  up  and  claimed,  within  the  meaning  of  U.  S. 
Rev.  Stat.,  §  709,  U.  S.  Comp.  Stat.  1901.  p.  575,  governing  writs  of  error  from 
the  federal  supreme  court  to  state  courts.'*^'' 


cil.  216  U.  S.  396.  54  L.  Ed.  534,  30  S.  Ct. 
295. 

An  order  of  the  highest  court  of  a  state, 
on  a  motion  for  rehearing,  reciting  that 
the  cause  came  on  to  be  heard  on  such 
motion,  and,  "the  same  being  considered 
by  the  court,  said  motion  is  overruled," 
does  not  show  that  the  court  passed  on 
the  federal  question  first  raised  by  such  pe- 
tition. McCorquodale  v.  Texas,  211  U.  S. 
432,  53  L.   Ed.  269,  29   S.  Ct.  146. 

628-97.  Where  a  federal  question  is 
raised  for  the  first  time  in  the  federal  su- 
preme court  it  is  too  late.  Rogers  v.  Clark 
Iron  Co.,  217  U.  S.  589,  54  L.  Ed.  895,  30  S. 
Ct.  693. 

640-45a.  Defenses  claimed  under  stat- 
utes of  territories. — El  Paso,  etc.,  R.  Co-. 
V.  Gutierrez.  215  U.  S.  87,  54  L.  Ed.  106,  30 
S.  Ct.  21.  following  Atchison,  etc.,  R.  Co.  v. 
Sowers,  2J3  U.  S.  55,  53  L.  Ed.  695,  29  S. 
Ct.  397. 

640-45b.  Claim  of  immunity  under  ter- 
ritorial act. — El  Paso,  etc.,  R.  Co.  z-'.  Gu- 
tierrez, 215  U.  S.  87,  54  L.  Ed.  106,  30  S. 
Ct.  21. 

A  claim  by  a  railway  in  a  state  court  of 
immunity  from  liability  for  the  negligent 
killing  of  an  employee  in  the  territory  of 
New  Mexico  because  of  noncompliance 
with  the  requirements  of  a  statute  of  that 
territory  governing  actions  for  personal 
injuries  received  therein  presents  a  federal 
question  within  the  meaning  of  Rev.  St. 
U.  _S..  §  709  (U.  S.  Comp.  St.  1901,  p.  575), 
which,  when  adversely  adjudicated,  con- 
fers  jurisdiction    on    the    federal    supreme 


court  of  a  writ  of  error  to  the  state  court. 
Judgment,  Gutierrez  v.  El  Paso  &  N.  E. 
R.  Co.  (Tex.),  117  S.  W.  426,  affirmed.  El 
Paso,  etc.,  R.  Co.  v.  Gutierrez,  215  U.  S.  87, 
54  L.  Ed.  106,  30  S.  Ct.  21. 

A  judgment  of  the  Texas  supreme  court, 
which,  reversing  the  judgment  of  the  court 
of  civil  appeals  of  that  state,  affirmed  the 
judgment  of  the  trial  court  entered  on  a 
verdict  in  favor  of  the  plaintiff  in  an  ac- 
tion against  a  railway  company  for  the 
negligent  killing  of  an  employee  in  the 
territory  of  New  Mexico,  is  reviewable  in 
the  federal  supreme  court,  as  necessarily 
deciding  against  a  federal  right  specially 
set  up,  within  the  meaning  of  Rev.  St.  U. 
S..  §  709  (U.  S.  Comp.  St.  1901,  p.  575), 
where  the  trial  court  sustained  a  demur- 
rer to  a  plea  setting  up  a  defense  under  a 
statute  of  the  territory,  which,  if  appli- 
cable, was  a  complete  bar  to  the  action, 
because  of  noncompliance  with  its  require- 
ments, although  the  decision  of  the  state 
supreme  court  proceeded  upon  the  theory 
that  the  case  was  controlled  by  the  federal 
employers'  liability  act,  which  it  held  to  be 
valid.  El  Paso,  etc.,  R.  Co.  v.  Gutierrez, 
215  U.   S.  87,  54  L.  Ed.  106,  30  S.  Ct.  21. 

640-45C.  Right  under  Safety-Appliance 
Act. — Judgment,  St.  Louis.  T.  M.  &  S.  Ry. 
Co.  V.  Neal  (1906)  98  S.  W.  958.  83  Ark. 
591,  reversed.  St.  Louis,  etc.,  R.  Co.  v. 
Taylor,  210  U.  S.  281,  52  L.  Ed.  1061.  28  S. 
Ct.  616. 

640-45d.  Right  under  copyright  law. — • 
Eerris  v.  Frohman,  223  U.  S.  424,  56  L.  Ed. 
492,  32  S.  Ct.  263. 


82 


Vol.  I. 


APPEAL  AND  ERROR. 


640-643 


(2  4/5)  Denial  of  Riglits  under  Federal  Incorporation  Act. — Where  on  a 
writ  of  error  to  a  state  court  the  right  or  privilege  alleged  to  have  been  denied 
by  the  state  court  is  claimed  in  virtue  of  the  authority  to  incorporate  conferred 
by  the  general  incorporation  act  of  May  5,  1870,  enacted  by  congress,  this  con- 
stitutes a  right  or  privilege  claimed  under  an  authority  exercised  under  the 
United  States,  which  is  reviewable  by  the  federal  supreme  court  by  virtue  of 
the  provisions  of  §  237  of  the  new  Judicial  Code.'*-'''' 

(4)  Denial  of  Rights  nndcr  National  Bank  Act — bb.  Showing  as  to  Juris- 
diction.— See  note  51. 

(5)  Denial  of  Rights  under  Bankrupt  Act. — See  note  53. 


640-45e.  Rights  under  Federal  Incorpo- 
ration Act. — Creswill  v.  Grand  Lodge 
Knights,  225  U.  S.  246,  56  L.  Ed.  1074,  32 
S.  Ct.  822,  citing  Dupasseur  v.  Rochereau, 
21  Wall.  130,  22  L.  Ed.  588;  Embry  v.  Pal- 
mer, 107  U.  S.  3,  27  L.  Ed.  346,  2  S.  Ct.  25; 
Ferris  v.  Frohman,  223  U.  S.  424,  431,  56 
,L.  Ed.  492,  32  S.  Ct.  263;  36  Stat,  at  L- 
1156,  chap.  231,  U.  S.  Comp.  Stat.,  Supp. 
1911.  p.  227,  §  709  U.  S.  Rev.  Stat.,  U.  S. 
Comp.  Stat.  1901,  p.  575. 

The  right  of  a  fraternal  order  to  the  use 
of  its  corporate  name,  and  the  incidental 
right  to  use  the  distinctive  words  in  such 
name  to  designate  the  order,  and  to  use 
the  appropriate  insignia,  emblems,  etc., 
when  invoked  in  virtue  of  the  authority  to 
incorporate  conferred  by  the  Federal  Gen- 
eral Incorporation  Act  of  May  5,  1870  (16 
Stat,  at  L.  98,  chap.  80),  is  claimed  under 
an  authority  exercised  under  the  United 
States  vi'ithin  the  meaning  of  U.  S.  Rev. 
Stat.,  §  709,  U.  S.  Comp.  Stat.  1901,  p.  575, 
Judicial  Code  (36  Stat,  at  L.  1156,  chap. 
231,  U.  S.  Comp.  Stat.  Supp.  1911,  p.  227), 
§  237,  governing  writs  of  error  from  the 
federal  supreme  court  to  state  courts. 
Creswill  v.  Grand  Lodge  Knights,  225  U. 
S.  246.  56  L.   Ed.  1074,  32   S.   Ct.  822. 

"The  fact  that  corporations  created  by 
the  general  law  of  1870  and  the  special  act 
of  congress  of  1894,  heretofore  referred 
to,  derived  their  rights  and  powers  under 
a  law  of  the  LTnited  States,  is  recognized 
in  the  following  cases  which  were  removed 
from  state  courts-  Knights  of  Pythias  7' 
Kalinski,  163  U.  S.  289,  41  L.  Ed.  163,  16  S 
Ct.  1047;  Knights  of  Pythias  v.  Withers 
177  U.  S.  260,  44  L.  Ed.  762,  20  S.  Ct.  611 
and  Pythias  Knights'  Supreme  Lodge  7' 
Beck,  181  U.  S.  49,  45  L.  Ed.  741,  21  S.  Ct 
532."  Creswill  v.  Grand  Lodge  Knights 
225  U.  S.  246,  56  L.  Ed.  1074,  32  S.  Ct.  822 

642-51.  Valuation  of  national  bank  stock 
for  taxation. — Objections  to  the  valuation 
of  national  bank  stock  for  taxation,  as  be- 
ing in  excess  of  the  actual  value,  exorbi- 
tant and  unjust,  and  not  in  proportion  to 
other  like  personal  property,  but  grossly 
in  excess  thereof,  and  constituting  unfair 
and  unequal  taxation,  do  not  raise  anyfed- 
eral  question  which  will  sustain  a  writ  of 
error  from  the  federal  supreme  court  to  a 
state  court,  where  no  mention  of  the  na- 
tional bank  act  was  made,  nor  of  any  right 


or  privilege  claimed  under  it,  and  the  pro- 
visions of  the  United  States  Revised  Stat- 
utes were  not  invoked,  by  name  or  other- 
wise, and  there  was  no  assertion  that  the 
local  statutes  under  which  the  assessment 
was  made  were  repugnant  to  the  terms  of 
Rev.  St.,  §  5219  (U.  S.  Comp.  St.  1901,  p, 
3502),  or  to  the  federal  constitution.  First 
Nat.  Bank  v.  City  Council.  215  U.  S.  341, 
54  L.  Ed.  233,  30  S.  Ct.  152. 

643-53.  Title  or  right  claimed  under 
bankrupt  laws. — The  decision  of  the  high- 
est state  court  that  a  trustee  of  a  bank- 
rupt partnership  can  avoid  a  preference 
under  the  state  law,  without  ascertaining 
the  existence  of  creditors  of  the  individual 
estate,  does  not  rest  on  a  nonfederal 
ground  so  as  to  defeat  appellate  jurisdic- 
tion of  the  federal  supreme  court.  Judg- 
ment (1906)  New  Orleans  Acid  &  Fertili- 
zer Co.  V.  O.  Guillory  &  Co.,  42  So.  329,  117 
La.  821,  affirmed.  Miller  v.  New  Orleans, 
etc..  Fertilizer  Co.,  211  U.  S-  496,  53  L.  Ed. 
300,  29  S.  Ct.  176. 

The  right  to  have  a  review  in  the  fed- 
eral supreme  court  of  a  judgment  of  a 
state  court  in  which  the  defeated  party 
set  up  the  pendency  of  bankruptcy  pro- 
ceedings as  a  bar  to  the  action,  and  fur- 
ther relied  upon  an  injunction  issued  out 
of  the  bankruptcy  court,  undertaking  to 
sta^-  the  proceedings  in  the  state  court, 
and  also  contended  that  the  proper  con- 
struction of  the  bankruptcy  act  precluded 
the  state  court  from  taking  jurisdiction, 
can  not  be  defeated  by  the  finding-  of  the 
state  court  as  a  matter  of  fact  that  the 
bankruptcy  proceedings  had  been  con- 
cluded by  denial  of  the  adjudication  in 
bankruptcy  and  an  abandonment  of  the 
proceedings.  Acme  Harvester  Co.  v. 
Beekman  Lumber  Co.,  222  U.  S.  300,  56  L. 
Ed.  208.  32  S.  Ct.  96,  affirming  judgment 
(1908)  Beekman  Lumber  Co.  r.  Acme  Har- 
vester  Co.,   114  S.  W.   1087.  215   Mo.  221. 

A  judgment  of  a  state  court  adverse  to 
the  plaintiff  in  an  action  in  which  he  spe- 
cially set  up  a  title  acquired  by  a  purchase 
of  property  from  a  trustee  in  bankruptcy, 
under  the  sanction  of  the  bankruptcy 
court,  does  not  involve  a  decision  of  the 
federal  aucstion  so  set  up  which  will  sus- 
tain a  writ  of  error  from  the  supreme  court 
of  the  United  States,  where  the  state  court 
rests  its  judgment  solely  upon  the  ground 


83 


647-651 


APPEAL  AND  ERROR. 


Vol.  I. 


(6)  Denial  of  Right  to  Remove  Causes  to  Federal  Courts — aa.    In  General. — 
See  note  55. 

(7)  Denial  of  Full  Faith  and  Credit  to  Judgments,  Records  and  Judicial  Pro- 
ceedings of  Sister  States.— See  notes  66,  68,  71,  79,  83. 


that,  being-  a  purchaser  pendente  lite  from 
the  trustee,  he  ^vas  bound  by  a  decree  ren- 
dered against  the  trustee  in  a  suit  brought 
by  him  in  equity  to  set  aside  certain  bills 
of  sale  executed  by  the  bankrupt,  cover- 
ing the  same  property.  Kenney  v.  Cra- 
ven, 215  U.  S.  125,  54  L.  Ed.  122,  30  S. 
Ct.  64. 

647-55.  Right  to  remove  causes  to  ied- 
eral  courts. — A  question  of  a  federal  na- 
ture which  will  sustain  a  writ  of  error 
from  the  federal  supreme  court  to  a  state 
court  was  raised  by  the  contention,  denied 
by  the  state  court,  that  a  right  or  privi- 
lege existed  under  a  statute  of  the  United 
States  to  remove  the  cause  to  a  federal 
circuit  court.  Judgment  (1908)  95  P.  457, 
20  Okl.  274,  affirmed.  Williams  r.  First 
Nat.  Bank,  216  U.  S.  582,  54  L.  Ed.  625,  30 
S.  Ct.  441. 

The  refusal  by  an  inferior  state  court  of 
an  application  to  remove  a  cause  to  a  fed- 
eral circuit  court  presents  no  federal  ques- 
tion which  will  sustain  a  writ  of  error  un- 
der U.  S.  Rev.  Stat.,  §  709,  U.  S.  Comp. 
Stat.  1901,  p.  575,  from  the  supreme  court 
of  the  United  States,  to  review  a  judgment 
of  the  highest  state  court,  affirming  the 
judgment  below,  where  there  is  nothing- 
in  the  record  to  indicate  that  the  question 
of  the  right  of  removal  was  brought  to 
the  attention  of  the  highest  state  court, 
and  that  court  could  not  have  considered 
the  question  even  if  presented,  because, 
at  the  time  the  appeal  from  the  final  judg- 
ment was  taken,  it  was  too  late  to  review 
the  order  refusing  the  removal.  Chesa- 
peake, etc..  R.  Co^z\  McDonald,  214  U.  S. 
191,  53  L.  Ed.  963,  29  S.  Ct.  546. 

No  real  federal  question  which  will  sup- 
port a  writ  of  error  from  the  federal  su- 
preme court  to  a  state  court  is  raised  by 
the  contention  that  the  state  court  denied 
a  federal  right  in  overniling  an  application 
to  remove  the  cause  to  a  federal  circuit 
court,  where  the  granting  of  such  applica- 
tion would  have  necessitated  the  aligning 
on  the  side  of  the  plaintiff,  in  a  suit 
founded  on  an  express  trust,  a  trustee  who 
was  charged  with  a  repudiation  of  his  ob- 
ligations as  trustee  by  a  refusal  to  apply 
the  trust  funds  as  required  by  the  trust 
agreement,  and  as  to  whom  not  only  was 
an  accounting  asked  and  an  injunction 
prayed  to  prevent  him  from  disposing  of 
the  trust  property,  but  his  removal  as 
trustee  was  also  sought.  Gerald  f.  Thomp- 
son, 222  U.  S.  555,  56  L.  Ed.  314,  32  S.  Ct. 
185. 

650-66.  Full  faith  and  credit — Sister 
states. — When  a  party  asserts  that  due 
faith  and  credit  have  not  been  given  to  a 


judgment  rendered  in  an  action  between 
him  and  the  other  party  he  asserts  a  right 
under  the  constitution  of  the  United 
States,  and  necessarily  this  raises  a  federal 
question.  West,  etc.,  R.  Co.  v.  Pittsburgh 
Constr.  Co.,  219  U.  S.  92,  99,  55  L.  Ed.  107, 
31  S.  Ct.  196. 

That  a  federal  question  is  presented  is 
not  open  to  doubt  where  the  contention  is 
that  one  state  has  not  given  full  faith  and 
credit  to  the  public  acts,  records  and  judi- 
cial proceedings  of  a  sister  state.  Brown 
V.  Fletcher,  210  U.  S.  82,  52  L.  Ed.  966,  28 
S.  Ct.  702,  following  Huntington  v.  Attrill, 
146  U.  S.  657,  36  L.  Ed.  1123,  13  S.Ct.  224. 

The  federal  supreme  court  has  jurisdic- 
tion of  a  writ  of  error  sued  out  to  review 
the  decision  of  a  state  court  adverse  to  the 
contention  that  no  recovery  against  the 
plaintiff  in  error  can  be  had  if  the  judg- 
ment of  a  court  of  a  sister  state  be  given 
the  full  faith  and  credit  to  which  it  is  en- 
titled under  the  constitution  and  laws  of 
the  United  States.  American  Exp.  Co.  v. 
Mullins,  212  U.  S.  311,  53  L.  Ed.  525,  29  S. 
Ct.  381. 

651-68.  Principles  of  general  law. — No 
refusal  by  the  courts  of  one  state  to  give 
full  faith  and  credit  to  the  judgment  of 
that  of  another  is  shown,  so  as  to  give  the 
supreme  court  of  the  United  States  juris- 
diction to  review  their  final  judgment  dis- 
missing, because  such  judgment  deter- 
mined the  question  of  the  legality  of  her 
marriage  against  her,  a  proceeding  by  a 
wife  to  set  aside  a  judgment  annulling  her 
marriage,  where  it  appears  that  such  other 
court,  being  a  court  of  competent  jurisdic- 
tion, and  having  jurisdiction  of  the  parties 
and  the  subject-matter,  dismissed  a  suit  by 
her  for  separate  maintenance  while  she 
was  living  apart  from  her  husband  for  al- 
leged justifiable  cause,  in  which  the  de- 
fense was  that  she  never  became  the  wife 
of  defendant,  because,  at  the  time  of  her 
alleged  marriage  to  him,  she  had  a  hus- 
band living,  which  allegation  was  sup- 
ported by  evidence  at  the  hearing,  al- 
though the  dismissal  might  have  been 
merely  upon  the  ground  that  she  was  not 
justified  in  living  apart  from  him,  if  she 
made  no  attempt  to  prove  that  it  was  in 
fact  upon  such  ground.  Everett  7'.  Ever- 
ett. 215  U.  S.  203,  54  L.  Ed.  158.30  S.  Ct.  70. 

A  decision  of  a  state  court  in  an  action 
founded  on  a  statute  of  another  state 
creating  an  action  for  death,  qualified  by 
a  one-year's  limitation,  that  the  failure  to 
plead  the  statute  in  the  complaint  was 
cured  by  its  inclusion  in  the  answers,  filed 
more  than  one  year  after  the  death,  pre- 
sents no  question  as  to  the  full  faith  and 


84 


Vol.  I. 


APPEAL  AND  ERROR. 


651-664 


(7>^).  Denial  of  Full  Faith  and  Credit  to  Judgments  of  Courts  of  Foreig^n. 
States  and  Nations. — Section  709  of  the  Revised  Statutes  giving  an  appeal  to 
the  federal  supreme  court  from  a  judgment  or  decree  in  any  suit  in  the  highest 
court  of  the  state  where  any  title,  right,  privilege  or  immunity  is  claimed  under 
the  constitution  and  denied,  can  not  be  invoked  so  as  to  review  a  denial  of  full 
faith  and  credit  by  a  state  court  to  the  judgments  of  foreign  states  and  na- 
tions.s*^^ 

(17)  Denial  of  Due  Process  of  Lazsj  or  Equal  Protection  of  the  Lazvs — aa.  In 
General. — See  note  19. 


credit  to  be  given  such  statute,  so  as  to 
sustain  a  writ  of  error  from  the  federal 
supreme  court,  but  involves  nothing  more 
than  a  question  of  local  pleading  and  prac- 
tice. Texas,  etc..  R.  Co.  z\  :\Iiller,  221  U. 
S.  408.  55  L.  Ed.  789,  31  S.  Ct.  534,  affirm- 
ing judgment  (Tex.  Civ.  App.  1910)  128  S. 
W.  1165;  Texas,  etc.,  R.  Co.  v.  Gross.  221 
U.  S.  417,  55  L.  Ed.  796,  31  S.  Ct.  536,  af- 
firming judgment  (Tex.  Civ.  App.  1910) 
128  S.  W.  1173. 

651-71.  Construction  of  state  statutes. — 
A  decision  of  a  state  court  sustaining  the 
validity  of  a  statute  of  another  state,  which 
is  asserted  to  violate  the  constitution  of 
that  state,  does  not  necessarily  involve  a 
decision  respecting  the  full  faith  and 
credit  to  be  given  such  constitution,  so  as 
to  sustain  a  writ  of  error  from  the  federal 
supreme  court,  where  the  state  court  did 
not  question  the  validity  of  the  state  con- 
stitution, but  held  that  the  statute  was  not 
repugnant  to  it.  Judgment  (1907)  St. 'John 
v.  Andrews  Institute  for  Girls,  102  N.  Y. 
S.  808,  117  App.  Div.  698,  affirmed.  Smith- 
sonian Institution  v.  St.  John,  214  U.  S. 
19,  53  L.  Ed.  892,  29  S.  Ct.  601. 

The  exercise  by  a  state  court  of  its  in- 
dependent judgment  in  interpreting  the 
statute  of  another  state  upon  which  the 
cause  of  action  is  based  can  present  no 
question  under  the  full  faith  and  credit 
clause  of  the  federal  constitution  for  re- 
view in  the  federal  supreme  court  by  writ 
of  error  to  a  state  court,  where  there  is  no 
local  statute  controlling  the  construction 
of  statutes  of  other  states,  and  no  settled 
construction  of  the  statute  by  the  courts 
of  the  state  enacting  it  is  pleaded  or 
proved.  Louisville,  etc.,  R.  Co.  v.  Melton, 
218  U.  S.  36,  54  L.  Ed.  921,  30  S.  Ct.  676. 

653-79.  Determination  of  question. — 
Whether  the  provisions  of  Act  Pa.  May  23, 
1907  (P.  L.  205).  validating  contracts  of 
foreign  corporations,  extended  to  a  con- 
tract which  had  previously  been  adjudged 
invalid  by  a  federal  court  because  of  the 
corporation's  failure  to  register  v^ithin  the 
state  before  entering  into  such  contract, 
Mnll  be  determined  by  the  federal  supreme 
court  for  itself  on  a  writ  of  error  to  a  str.te 
court,  presenting  the  question  whether  full 
faith  and  credit  were  given  to  such  judg- 
ment by  the  decision  of  the  state  court 
that  it  was  not  a  bar  to  a  second  action 
between    the    same    parties    on    the    same 


contract,  after  the  corporation  had  brought 
itself  within  the  terms  of  such  statute. 
West,  etc.,  R.  Co.  v.  Pittsburgh  Constr. 
Co.,  219  U.  S.  92,  55  L.  Ed.  107,  31  S.  Ct. 
196,  affirming  judgment  Pittsburgh  Const. 
Co.  c'.  West  Side  Belt  R.  Co.  (1910)  75  A. 
1029.  227   Pa.  90. 

654-83.  Showing  as  to  jurisdiction. — 
The  full  faith  and  credit  clause  of  the  fed- 
eral constitution  must  be  pleaded,  or  the 
attention  of  the  court  below  directed  to 
the  fact  that,  in  connection  with  the  proper 
construction  of  a  statute  of  another  slate, 
reliance  was  placed  upon  that  clause,  in 
order  to  present  a  federal  question  for  re- 
view in  the  federal  supreme  court  by  writ 
of  error  to  a  state  court.  Louisville,  etc., 
R.  Co.  V.  Melton,  218  U.  S.  36,  54  L.  Ed. 
921,  30  S.  Ct.  676.  affirming  judgment 
(1907)  105  S.  W.  366,  127  K}-.  276. 

654-86a.  Full  faith  and  credit — Foreign 
states. — ^tna  Life  Ins.  Co.  v.  Tremblay, 
223  U.   S.  185,  56  L.   Ed.  398,  32  S.  Ct.  309. 

Judgments  of  Canadian  courts. — The 
contention  that*  full  and  proper  faith  and 
credit  were  not  given  to  a  judgment  of  a 
Canadian  court  by  a  decision  of  a  state 
court  does  not  involve  a  federal  question 
which  will  support  a  writ  of  err-^ir  from 
the  federal  supreme  court.  ^tna  Life 
Ins.  Co.  v.  Tremblay,  223  U.  S.  185,  56  L. 
Ed.  398,  32  S.  Ct.  309. 

664-19.  Former  jeopardy. — A  specific 
contention  on  the  trial  of  a  criminal  cause 
in  a  state  court  that  the  denial  to  the  ac- 
cused of  the  benefit  of  his  plea  of  former 
jeopardy  operates  to  deprive  him  of  his 
liberty  without  due  process  of  law,  con- 
trary to  const.  U.  S.  Amend.  14,  raises  a 
federal  question  which  will  sustain  a  writ 
of  error  from  the  federal  supreme  court 
to  review  the  judgment  of  the  highest 
court  of  the  state,  affirming  the  conviction. 
Judgment  (1906)  85  P.  862.  33  Mont.  501, 
affirmed.  Keerl  v.  Montana,  213  U.  S.  135, 
53  L.  Ed.  734,  29  S.  Ct.  469. 

The  contention  that  a  second  conviction 
of  a  public  officer  for  failing,  on  demand, 
to  pay  over  certain  public  moneys,  de- 
prives him  of  his  liberty  without  due  proc- 
ess of  law,  in  violation  of  U.  S.  Const..  14th 
Amend.,  by  twice  subjecting  him  to  jeop- 
ard}^ for  the  same  oflfense.  presents  no 
federal  question  which  will  sustain  a  writ 
of  error  from  the  federal  supreme  court 
to  the  highest  court  of  a  state,  where  the 


85 


672-677 


APPEAL  AND  ERROR. 


Vol.  I. 


jj.    Showing  as  to  Jurisdiction. — See  note  42. 

(19)  Denial  of  Rights  under  the  Commerce  Clause  of  the  Constitution. — See 
note  58. 


latter  court  decides  that  the  accused  was 
not  put  in  jeopardy  by  his  prior  convic- 
tion, because  such  conviction  was  re- 
versed on  the  ground  that  there  had  then 
been  no  legal  demand.  Shoener  v.  Com- 
monwealth, 207  U.  S.  188,  52  L.  Ed.  163, 
28  S.  Ct.  110. 

672-42.  Approval  of  receivers  bond. — 
The  time  or  manner  in  which  a  state  court 
sees  fit  to  approve  the  bond  of  a  receiver 
of  the  property  of  a  corporation  convicted 
of  violating  the  state  anti-trust  laws  pre- 
sents no  substantial  federal  question  un- 
der Const.  U.  S.  Amend.  14.  Waters- 
Pierce  Oil  Co.  V.  Texas,  No.  2,  212  U.  S. 
112,  53  L.   Ed.  431,  29  S.   Ct.  227. 

Rights  of  riparian  owners. — Federal 
questions  of  serious  import,  essential  to 
support  a  writ  of  error  from  the  federal 
supreme  court,  are  not  involved  in  con- 
tentions that  riparian  owners  were  denied 
due  process  of  law  or  the  equal  protection 
of  the  laws  by  the  decision  of  a  state  court 
awarding  a  municipality  paramount  rights 
in  the  waters  of  the  stream  under  Spanish 
and  Mexican  laws,  confirmed  by  the 
United  States  to  the  municipality  as  the 
successor  of  a  vSpanish  pueblo.  Los 
Angeles,  etc.,  Milling  Co.  v.  Los  Angeles, 
217  U.  S.  217,  54  L.  Ed.  736,  30  S.  Ct.  452. 

Receiver  of  foreign  corporation. — The 
contention  that  a  state  court,  in  appoint- 
ing a  receiver  of  a  foreign  corporation 
convicted  of  violating  state  anti-trust 
laws,  deprives  the  corporation  of  rights 
under  Const.  U.  S.  Amend.  14,  does  not 
present  a  substantial  federal  question. 
Waters-Pierce  Oil  Co.  v.  Texas,  No.  2,  212 
U.  S.  112,  53  L.  Ed.  431,  29  S.  Ct.  227. 

Per  cent  on  loans. — The  contention  that 
the  exemption  of  banks  or  trust  com- 
panies and  bona  fide  mortgages  from  the 
operation  of  Conn.  Pub.  Acts  1907,  c.  238, 
prohibiting  exacting  more  than  15  per 
cent  on  loans,  or  accepting  a  note  for  a 
greater  amount  than  that  actually  loaned, 
with  intent  to  evade  this  provision,  denies 
the  equal  protection  of  the  laws  guaran- 
teed by  Const.  U.  S.  Amend.  14,  is  not  so 
clearly  lacking  in  merit  as  not  to  serve  as 
the  basis  of  a  writ  of  error  from  the  fed- 
eral supreme  court  to  a  state  court. 
Griffith  V.  Connecticut,  218  U.  S.  563,  54 
L.  Ed.  1151.  31  S.  Ct.  132;  S.  C,  218  U. 
S.  572,  54  L.  Ed.  1155,  31  S.  Ct.  134.  Af- 
firming judgment  State  v.  Griffith,  74  A. 
1068,  S3  Conn.  1. 

Disqualification  of  grand  jurors. — A  mo- 
tion to  quash  an  indictment  against  a  ne- 
gro for  disqualification  of  the  grand  jurors, 
who  must  be  electors,  because  of  a  change 
in  the  state    constitution     respecting     the 


qualifications  of  electors,  alleged  to  vio- 
late Act  Cong.  June  25,  1868,  c.  70,  15  Stat. 
73,  does  not  present  any  question  of  the 
denial  of  a  federal  right,  where  there  is 
nothing  in  the  record  to  show  that  the 
grand  jury,  as  actually  impaneled,  con- 
tained any  person  who  was  not  qualified 
as  an  elector  under  the  earlier  constitu- 
tion, or  was  so  made  up  as  to  exclude 
negro  citizens  on  account  of  their  race. 
Franklin  v.  South  Carolina,  218  U.  S.  161, 
54  L.  Ed.  980,  30  S.  Ct.  640,  affirming  judg- 
ment in  State  v.  Franklin  (1908),  00  S.  E. 
953,   80    S.    Ct.    332. 

Forfeiture  of  land  under  tax  laws. — 
The  contention  that  Const.  U.  S.,  Amend. 
14,  is  violated  by  the  provisions  of  Const. 
W.  Va.,  art.  13  (Code  1906,  p.  Ixxxiv),  and 
Code,  ch.  105,  for  the  forfeiture  to  the 
state  of  lands  not  listed  by  the  owner  for 
taxation  for  five  successive  years,  with  lib- 
erty to  the  owner  to  intervene  and  re- 
deem, having  been  decided  adversely  in  a 
prior  decision  of  the  federal  supreme 
court,  aflfords  no  basis  for  a  writ  of  error 
from  that  court  to  a  state  court.  King  v. 
West  Virginia,  etc.,  Lumber  Co.,  216  U. 
S.  92,  54  L.  Ed.  396,  30  S.  Ct.  225. 

677-58.  The  adequacy  of  the  local  facili- 
ties existing  at  a  station  at  which  a  through 
interstate  railroad  train  is  required  to  stop 
by  an  order  made  under  state  authority, 
though  not  inherently  a  federal  question, 
may  be  considered  by  the  federal  supreme 
court  on  writ  of  error  to  a  state  court  in 
so  far  as  the  existence  of  such  adequate 
local  facilities  is  involved  in  the  determi- 
nation of  the  federal  question  as  to 
whether  the  order  does  or  does  not  di- 
rectly regulate  interstate  commerce.  Judg- 
ment, Railroad  Com'rs  v.  Atlantic  Coast 
Line  R.  Co.  (1906),  54  S.  E.  224,  74  S.  C. 
80,  reversed  in  Atlantic,  etc.,  R.  Co.  v. 
Wharton,  207  U.  S.  328,  52  L.  Ed.  230,  28 
S.  Ct.  121. 

Suit  to  recover  excess  charges. — A  gen- 
eral finding  against  a  common  carrier  in 
garnishment  proceedings  against  it  by  a 
creditor  of  a  shipper,  to  recover  charges 
in  excess  of  a  special  rate  agreed  upon, 
necessarily  involves  the  decision  of  ques- 
tions of  the  interpretation  and  application 
of  the  interstate  commerce  acts  of  Feb- 
ruary 4,  1887  (24  Stat,  at  L.  379,  chap. 
104,  U.  S.  Comp.  Stat.  1901,  p.  3154),  and 
March  2.  1889  (25  Stat,  at  L.  855,  chap. 
382,  U.  S.  Comp.  Stat.  1901,  p.  3158),  so  as 
to  give  the  United  States  supreme  court 
jurisdiction,  where  such  carrier  claimed  in 
the  state  court  that  the  rates  collected, 
though  in  excess  of  the  special  rate  agreed 
on,  were  the  lawful  rates  applicable  to  the 
shipments,    as    shown    by    schedules    filed 


86 


Vol.  I.  APPEAL  AND  ERROR.  677-678 

Powers  of  State  Railroad  Commission. — Questions  whose  determination 
depends  upon  the  power  of  a  state  railroad  commission,  upon  the  petition  of 
certain  railway  companies  for  the  approval  of  a  consolidation,  and  upon  the 
order  of  the  commission,  made  on  the  petition,  are  local,  and  not  federal,  and 
can  not  be  reviewed  on  a  writ  of  error  from  the  federal  supreme  court  to  a 
state  court.^^^ 

Showing  as  to  Jurisdiction. — A  state  court,  by  resting  its  decision  in  a 
suit  to  require  railway  companies  to  construct  their  railroad  through  a  speci- 
fied county  seat,  and  to  restrain  them  from  abandoning  a  portion  of  the  road, 
upon  the  ground  that  the  petition  by  the  railway  companies  to  the  railroad  com- 
mission for  approval  of  a  consolidation,  and  its  order  thereon,  constituted  a 
binding  contract,  is  not  using  a  mere  pretext  to  avoid  the  determination  of  the 
federal  questions  arising  in  the  case  under  the  contract  and  commerce  clauses 
of  the  federal  constitution,  where  the  power  of  the  commission  and  the  effect  of 
its  order  were  necessarily  presented  by  the  case.^^a  q^ jig  question  whether  the 
commerce  clause  of  the  federal  constitution  is  violated  by  the  provisions  of 
Laws  Kan.  1907,  c.  250,  making  it  unlawful  to  sell  or  deliver  black  powder  for 
use  in  any  coal  mines  in  the  state  except  in  original  sealed  packages  containing 
12^  pounds  of  powder,  is  not  open  on  a  writ  of  error  from  the  federal  su- 
preme court  to  review  a  judgment  of  the  state  court  refusing  a  writ  of  habeas 
corpus  to  one  convicted  of  a  violation  of  the  state  statute,  where  the  latter  court 
refused  to  consider  the  contention  because  the  fact  of  the  importation  of  the 
package  sold  from  outside  the  state  did  not  appear  at  the  trial.'^^b  q^j-jg  ruling 
of  a  state  court  that  the  power  to  penalize  a  railway  company  for  failure  to  fur- 
nish cars  on  demand  arose  from  a  state  statute  instead  of  from  a  rule  adopted 
by  the  railroad  commission,  which  was  challenged  as  repugnant  to  the  federal 
constitution,  does  not  eliminate  the  federal  questions  from  the  case,  so  as  to 
require  the  dismissal  of  a  writ  of  error  from  the  federal  supreme  court,  where 
the  constitutional  defenses  asserted  by  the  pleadings  and  embraced  in  the  in- 
structions asked  and  refused  were  not  confined  to  the  mere  order  as  such,  but 
plainly  challenged  the  power  of  the  state  to  inflict  the  penalty  for  the  failure  to 
furnish  the  cars  under  the  circumstances  disclosed  by  the  pleadings. ^2"°  The 
decision  of  a  state  court  sustaining  its  jurisdiction  of  a  suit  against  a  foreign 
railway  corporation,  commenced  by  attaching  a  box  car  belonging  to  that  com- 
pany, does  not  involve  a  ruling  upon  the  company's  contention  that  the  levy 
upon  such  car  was  invalid,  as  burdening  interstate  commerce,  where  the  court 
did  not  pass  upon  the  question  whether  the  levy  of  the  attachment  was  regular, 
or  whether  the  property  seized  was  subject  to  levy,  but  held,  construing  the 
state  statutes  relating  to  attachments  and  the  decisions  of  the  highest  court  of 
that  state,  that  it  was  unnecessary  to  decide  those  questions,  because  they  had 
been  waived  by  the  conduct  of  the  railway  company  in  giving  a  replevy  bond 
and  answering  without  protestation.^^a 

with  the  interstate  commerce  commission.  upon    question. — Williams    v.    Walsh,    222 

Kansas  City,  etc.,  R.  Co.  v.  Albers  Comm.  U.  S.  415,  56  L.  Ed.  253,  32  S.  Ct.  137,  af- 

Co.,  223  U.  S.  573,  56  L.  Ed.  556,  32  S.  Ct.  firming  order  in  Ex  parte  Williams,  98  P. 

316.  777,  79   Kan.  212. 

677-59a.    Power  of  State  Railroad  Com-  678-62c.'  Penalizing  railway  for  refusal 

mission. — Mobile,    etc.,    R.    Co.    v.    Missis-  to  furnish  cars. — Judgment    (1907)    107   S. 

sippi.  210  U.   S.   187,   52  L.   Ed.  1016,  28  S.  W.  1180,  85  Ark.  311,  122  Am.  St.  Rep.  33, 

Ct.  650,  affirming  in  41   So.  259,  89   Miss.  reversed  in   St.  Louis,  etc.,   R.  Co.  v.  Ar- 

724.  kansas,  217  U.  S.  136,  54  L.  Ed.  698,  30  S. 

678-62a.    Showing  as    to    jurisdiction. —  Ct.  476. 

Mobile,  etc.,  R.  Co.  ?■.  Mississippi,  210  U.  678-62d.      Burdening      interstate      com- 

S.  187,  52   L.   Ed.  1016,  28   S.   Ct.  650,  af-  merce— Attaching     box      car.— Cincmnati, 

firming  41    So.   259,   89    Miss.   724.  etc.,  R.  Co.  v.  Slade,  216  U.  S.  78,  54  L.  Ed. 

678-62b.    Where  state  court  did  not  pass  390,  30  S.  Ct.  230. 

87 


681-686 


APPEAL  AND  ERROR. 


Vol.  I. 


(24)  Claim  of  Title  to  Land  under  United  States — aa.  In  General. — ^See 
note  68. 

bb.    Construction  of  Patents. — See  note  71. 

cc.  Titles  Claimed  under  Patents  Based  upon  Spanish  or  Mexican  Grants. — • 
See  note  72. 


681-68.  Claim  of  title  to  land  under 
United  States. — A  judgment  of  a  state 
court,  dismissing  a  suit  founded  upon  the 
making  and  approval  of  a  plat  of  a  town 
site,  although  resting  in  some  respects 
upon  the  proposition  that,  under  Act 
Idaho,  Jan.  8,  1873  (Laws  1873,  p.  16),  en- 
acted pursuant  to  Rev.  St.  U.  S.,  §  2387 
(U.  S.  Comp.  St.  1901,  p.  1457),  to  pro- 
vide for  the  disposal  of  the  land,  there  was 
no  power  given  to  make  a  survey  or  plat 
which  did  not  conform  to  the  lines  of  oc- 
cupation, is  reviewable  in  the  federal  su- 
preme court,  where  the  basis  of  the  suit 
is  that  the  federal  laws  authorize  an  of- 
ficial ascertainment  of  boundaries;  that 
equitable  rights  under  those  laws  vest 
upon  condition  that  the  owners,  within  a 
reasonable  time,  have  their  rights  con- 
firmed by  the  trustee  upon  an  official  sur- 
vey; and  that  those  laws  require  each 
town-site  occupant  to  see  that  the  official 
ascertainment  is  true  before  accepting 
confirmation.  Decree  (1907),  90  P.  573.  13 
Idaho,  417,  affirmed.  Scully  v.  Squier,  215 
U.  S.  144,  54  L.   Ed.   131,  30  S.   Ct.  51. 

Claim  of  title  under  Oregon  Donation 
Act. — A  decision  of  the  Washington  su- 
preme court  adverse  to  a  claim  of  title 
founded  upon  the  invalidity,  under  the 
Oregon  Donation  Act  of  September  27, 
1850  (9  Stat.  496,  c.  76),  of  their  ances- 
tors' deed  to  the  territory  of  Washington, 
and  upon  the  incapacity  of  the  territory  to 
accept  the  deed  under  Act  March  2,  1853 
(10  Stat.  172,  c.  90),  by  which  such  terri- 
tory was  organized,  is  reviewable  on  a 
writ  of  error  from  the  federal  supreme 
court.  Judgment  (1907),  91  P.  15,  46 
Wash.  585,  affirmed.  Sylvester  v.  Wash- 
ington, 215  U.  S.  80,  54  L.  Ed.  101,  30  S. 
Ct.   25. 

Claim  of  title  under  United  States  pat- 
ents.— The  federal  question  presented  by 
a  claim  of  right  and  title  under  a  patent 
from  the  United  States  to  land  within  the 
place  limits  of  the  grant  made  by  Act  July 
1,  1862.  c.  120,  12  Stat.  489.  and  the  amend- 
atory act  of  July  2,  1864  (13  Stat.  356,  c. 
216"),  in  aid  of  branch  railroads,  which 
rests  upon  the  theory  that  such  grant  was 
not  one  in  prjesenti,  and  that  therefore  the 
title  did  not  pass  upon  completion  of  the 
railroads  and  compliance  with  the  terms 
and  conditions  of  the  grant,  but  the  land 
remained  in  the  jurisdiction  of  the  land 
department,  which,  up  to  a  short  time  be- 
fore the  execution  of  the  patent,  had  as- 
sumed and  exercised  jurisdiction  over 
controversies  respecting  the  land,  is  not 
so    frivolous    as    to    require    the    dismissal 


of  a  writ  of  error  from  the  federal  su- 
preme court  to  review  a  decision  of  a  state 
court  against  the  right  or  title  claimed. 
Missouri,  etc.,  Land  Co.  v.  Wiese,  208  U. 
S.  234,  52  L.  Ed.  466,  28  S.  Ct.  294,  affirm- 
ing judgment  in  Wiese  t'.  Union  Pac.  Ry. 
Co.  (Neb.  1906),  108  N.  W.  175;  Missouri, 
etc.,  Land  Co.  v.  Wrich,  208  U.  S.  250,  52 
L.  Ed.  473,  28  S.  Ct.  299,  affirming  judg- 
ment in  Wrich  v.  Union  Pac.  Ry.  Co. 
(Neb.  1906),  108  N.  W.  178. 

685-71.  Construction  of  patents.— Where 
the  state  court  merely  decides  who  is  en- 
titled to  land  under  a  federal  patent  the 
federal  supreme  court  has  no  jurisdiction. 
Rogers  v.  Clark  Iron  Co..  217  U.  S.  589,  54 
L.    Ed.   895,   30   S.    Ct.   693. 

686-72.  Riparian  rights  asserted  to  have 
been  secured  by  the  treaty  of  Guadalupe 
Hidalgo  between  the  United  States  and 
Mexico,  and  Act  Cong.  March  3,  1851,  c. 
41,  9  Stat.  631,  for  the  confirmation  of 
titles  derived  from  Spanish  and  Mexican 
grants,  are  not  rights  of  federal  origin, 
which,  when  denied,  lay  the  basis  for  a 
writ  of  error  from  the  federal  supreme 
court  to  a  state  court.  Los  Angeles,  etc., 
Milling  Co.  V.  Los  Angeles.  217  U.  S.  217, 
54   L.   Ed.  736,  30  S.   Ct.   452. 

The  assertion  that  state  statutes  have 
undertaken  to  confer  water  rights  upon  a 
municipality,  and  were  given  such  efifect 
in  violation  of  federal  rights  of  riparian 
owners,  can  not  serve  as  the  basis  of  a 
writ  of  error  from  the  federal  supreme 
court  to  a  state  court,  where  the  latter 
court  holds  that  the  municipal  rights  were 
not  determined  by  the  effect  of  those 
statutes,  but  upon  the  right  and  title 
secured  by  Spanish  and  Mexican  laws, 
and  the  subsequent  confirmation  thereof 
under  a  federal  statute.  Los  Angeles,  etc., 
Milling  Co.  v.  Los  Angeles,  217  U.  S.  217, 
54   L.   Ed.  736,  30  S.   Ct.   452. 

Pueblo  lands. — The  contention  that  the 
confirmation  of  a  pueblo  claim  under  Act 
March  3,  1851,  c.  41,  9  Stat.  631.  bars  the 
municipal  successor  to  the  pueblo  for  set- 
ting up  water  rights  not  claimed  in  the 
petition  for  confirmation,  is  too  clearly 
unfounded  to  support  a  writ  of  error  from 
the  federal  supreme  court  to  a  state  court. 
Los  Angeles,  etc.,  Milling  Co.  v.  Los 
Angeles,  217  U.  S.  217,  54  L.  Ed.  736,  30' 
S.   Ct.   452. 

Ihe  contention  that  the  disposition  of 
the  public  lands  by  the  United  States  is 
interfered  with  by  a  judgment  awarding 
a  municipality  rights  in  the  waters  of  a 
stream  paramount  to  those  of  riparian 
owners,  which  rests  upon  the  effect  of  the 


88 


\^ol.   I. 


APPEAL  AND  ERROR. 


693-703 


(39)     Questions  Arising  under  Federal  Alining  Statutes. — See  note  95. 

(46)  Questions  Arising  under  the  Public  Land  Acts. — See  note  15.  And  see 
ante,  "Claim  of  Title  to  Land  under  United  States,"  III,  D,  7,  q,  (24). 

(50)  Federal  Statutes  Relating  to  Rivers  and  Harbors. — The  contention  that 
a  marine  railway  which  projected  beyond  the  harbor  line  established  by  the 
secretary  of  war  conformably  to  Act  March  3,  1899,  c.  425,  §  10,  30  Stat.  1151 
(U.  S.  Comp.  St.  1901,  p.  3541),  is  illegal  and  a  public  nuisance,  which  the 
owner  of  a  vessel  might  wantonly  injure  or  destroy,  although  such  railway  was 
constructed  and  had  been  in  operation  many  years  before  the  establishment  of 
such  harbor  line,  is  so  clearly  unfounded  as  not  to  serve  as  the  basis  of  a  writ 
of  error  from  the  federal  supreme  court  to  review  the  judgment  of  a  state 
court  adverse  to  such  contention. -"^^ 

(55)    Impairment  of  Obligation  of  Contract — aa.    In  General. — See  note  32. 


Spanish  and  Mexican  laws  governing  the 
rights  of  a  pueblo  of  which  the  munici- 
pality is  the  successor,  and  the  subsequent 
confirmation  thereof  under  the  federal 
laws,  is  too  clearly  unfounded  to  serve  as 
the  basis  of  a  writ  of  error  from  the  fed- 
eral supreme  court  to  the  state  court  ren- 
dering such  judgment.  Los  Angeles,  etc.. 
Milling  Co.  V.  Los  Angeles,  2t7  U.  S.  217, 
54   L.   Ed.   736,  30   S.   Ct.  452. 

The  question  whether  the  California 
legislature  could  enact  Act  April  2,  1866, 
ratifying  conveyances  made  by  the  cor- 
porate authorities  of  the  city  of  Monterey 
of  pueblo  lands  confirmed  to  that  city  by 
the  United  States,  and  afterwards  patented 
to  it,  its  successors  and  assigns,  is  not  so 
far  unsubstantial  as  to  justify  dismissal  of 
a  writ  of  error  to  a  state  court.  Monterey 
t'.  Jacks,  203  U.  S.  360,  51  L.  Ed.  220,  27 
S.  Ct.  67,  afiirming  73  P._436,  139  Cal.  542. 

693-95.  Questions  arising  under  federal 
mining  statutes. — The  decision  of  the 
highest  court  of  a  state  that  the  determi- 
nation of  the  trial  court,  based  on  con- 
flicting testimony,  that  the  original  loca- 
tors of  a  mining  claim  had  resumed  their 
assessment  work  within  the  meaning  of 
Rev.  St.  U.  S.,  §  2324  [U.  S.  Comp.  St. 
190],  p.  1426],  before  an  attempted  ad- 
verse relocation,  was  conclusive  on  appeal, 
does  not  amount  to  a  denial  of  the  right 
of  relocation  claimed  under  that  section, 
so  as  to  permit  a  review  in  the  supreme 
court  of  the  United  States  on  writ  of  er- 
ror. Judgment,  Emerson  v.  Yosemite 
Gold  Min.  &  Mill.  Co.  (1906),  85  P.  122, 
149  Cal.  50,  affirmed.  Yosemite  Gold,  etc., 
Co.  7'.  Emerson,  208  U.  S.  25,  52  L  Ed. 
374,  28  S.  Ct.  196. 

698-15.  Admissibility  of  evidence  of  lo- 
cation.— A  federal  question  is  presented 
and  decided  in  ejectment  for  a  tract  of 
land  derived  by  the  parties  from  the 
United  States  under  two  different  surveys, 
by  passing  adversely  on  plaintiff's  objec- 
tion to  the  admission  of  all  evidence  bear- 
ing on  the  location  of  the  tract  in  con- 
troversy other  than  the  field  notes  of  the 
survej''  under  which  plaintiffs  claimed,  and 
which  they  contended  were  the  best  and 
only   evidence,   as   by   such    decision     the 


court  passed  on  the  competency  and  le- 
gal effect  of  the  evidence  as  bearing  on 
the  effect  of  the  requirements  of  U  S. 
Rev.  Stat.,  §  2396,  U.  S.  Comp.  Stat.  1901, 
p.  1473,  as  to  the  mode  of  surveying  lands. 
Graham  v.  Gill,  223  U.  S.  643.  56  L  Ed. 
586,  32   S.   Ct.   396. 

702-26a.  Statutes  relating  to  rivers  and 
harbors.— Gring  v.  Ives,  222  U.  S.  365,  56 
L.   Ed.  235,  32   S.   Ct.   167. 

703-32.  Impairment  of  obligation  of  con- 
tract.— The  question  whether  a  provision 
in  a  railway  charter  exempting  the  com- 
pany from  liability  for  the  death  of  any 
person  in  its  service,  even  if  caused  by 
its  negligence,  created  a  contract  right 
protected  .against  repeal  by  the  contract 
clause  of  the  federal  constitution,  is  suffi- 
ciently substantial  to  sustain  a  writ  of 
error  from  the  federal  supreme  court  to  a 
state  court.  Texas,  etc.,  R.  Co.  v.  Miller 
221  U.  S.  408,  55  L.  Ed.  789,  31  S.  Ct.  534, 
affirming  128  S.  W.  1165;  Texas,  etc.,  R. 
Co.  V.  Gross,  221  U.  S.  417,  55  L.  Ed.  796, 
31   S.   Ct.  536,  affirming  in  12S   S.  W.  1173. 

If  the  plaintiff  in  error  sets  up  a  claim 
of  contract  upon  substantial  grounds  and 
with  allegations  showing  an  impairment 
of  its  obligation  by  state  or  municipal  leg- 
islation, a  case  is  presented  which  may  be 
brought  to  the  federal  supreme  court  in 
event  such  legislation  was  upheld.  North- 
ern Pac.  R.  Co.  V.  Duluth,  208  U.  S.  583, 
590,  52  L.  Ed.  630,  28  S.  Ct.  341. 

Municipal  legislation  carried  into  effect 
by  mandamus,  which  requires  a  railroad 
company  to  make  repairs  in  a  viaduct  at 
its  own  expense,  in  accordance  with  plans 
adopted  and  approved  by  the  municipal 
council,  can  not  be  regarded  as  a  mere 
repudiation  by  the  municipality  of  its 
agreement  to  maintain  the  viaduct,  so  as 
to  defeat  the  appellate  jurisdiction  of  the 
supreme  court  of  the  United  States  over 
a  state  court,  invoked  on  the  ground  that 
contract  obligations  were  thereby  im- 
paired. Judgment,  State  f.  Northern  Pac. 
Ry.  Co.  (-I906),  108  N.  W.  269,  98  Minn. 
429,  affirmed.  Northern  Pac.  R.  Co.  7-. 
Duluth,  208  U.  S.  583,  52  L.  Ed.  630,  28 
S.  Ct.  341. 


8d 


703-721 


APPEAL  AND  ERROR. 


\'ol.  I. 


While  errors  committed  by  a  state  court  when  passing  upon  the  vahdity 
or  effect  of  the  contract  under  the  laws  in  existence  when  it  was  made  imay 
operate  to  impair  the  obhgation  of  a  contract,  they  do  not  give  rise  to  a  fed- 
eral question.^  2a 

bb.    Prior  or  Subsequent  Legislation. — See  note  33. 

kk.  Determination  as  to  Validity,  Interpretation  and  Existence  of  Contract. — 
See  note  54. 

11.    Showing  as  to  Jurisdiction. — See  note  69. 

Where  Decision  Rests  on  Rules  of  General  Law. — See  note  72. 


703-32a.  Errors  committed  by  state 
court. — Cross  Lake  Shooting,  etc..  Club  v. 
Louisiana,  224  U.  S.  632,  56  L.  Ed.  924,  32 
S.  Ct.  577. 

Mere  errors  committed  by  a  state  court 
when  passing  upon  the  validity  and  ef- 
fect of  a  contract  under  the  laws  in  ex- 
istence when  it  was  made  can  not  give 
rise  to  a  question  of  the  impairment  of 
contract  obligations,  reviewable  in  the 
federal  supreme  court  by  writ  of  error, 
where  no  effect  has  been  given  to  any 
subsequent  legislation,  even  though  the 
rulings  are  not  m  accord  with  prior  de- 
cisions, on  the  faith  of  which  the  rights  in 
question  were  acquired.  Cross  Lake 
Shooting,  etc.,  Club  r.  Louisiana,  224  U.  S. 
€32.  56  L.  Ed.  924.  32  S.  Ct.  577. 

706-33.  Prior  or  subsequent  legislation. 
— Only  when  a  judgment  of  a  state  court 
gives  effect  to  subsequent  legislation  can 
the  federal  supreme  court  review,  as  pre- 
senting a  question  of  the  impairment  of 
contract  obligations,  its  decision  holding 
invalid,  under  the  state  constitution,  a 
state  law  which  is  alleged  to  constitute  a 
contract.  Judgment  (1906),  41  So.  259.  89 
Miss.  724.  affirmed.  Mobile,  etc.,  R.  Co. 
V.  Mississippi,  210  U.  S.  187,  52  L.  Ed. 
1016.  28  S.  Ct.  650. 

"When  the  state  court,  either  expressly 
or  by  necessary'  implication,  gives  effect 
to  a  subsequent  law  of  the  state  whereby 
the  obligation  of  the  contract  is  alleged 
to  be  impaired,  a  federal  question  is  pre- 
sented. In  such  a  case  it  becomes  our 
duty  to  take  jurisdiction  and  to  determine 
the  existence  and  validity  of  the  contract.  . 
what  obligations  arose  from  it,  and 
whether  they  are  impaired  by  the  subse- 
quent law.  But  if  there  be  no  such  lav/, 
or  if  no  effect  be  given  to  it  by  the  state 
court,  we  can  not  take  jurisdiction,  no 
matter  how  earnestly  it  may  1)e  insisted 
that  that  court  erred  in  its  conclusion  re- 
specting the  validity  or  effect  of  the  con- 
tract; and  this  is  true  even  where  it  is  as- 
serted, as  it  is  here,  that  the  judgment  is 
not  in  accord  with  prior  decisions  on  the 
faith  of  v/hich  the  rights  in  question  were 
acquired."  Cross  Lake  Shooting,  etc., 
Club  7,'.  Louisiana.  224  U.  S.  632,  56  L. 
Ed.  924,  32  S.  Ct.  577. 

A  decree  of  a  state  court  avoiding  a  con- 
veyance by  the  board  of  commissioners 
•of  the  Caddo  levee  district  iinder  the  sup- 


posed authority  of  La.  Acts  1892,  No.  74, 
§  9,  on  the  ground  that  under  that  section, 
properly  construed,  the  board  had  no  au- 
thority to  sell  until  a  proper  instrument 
conveying  the  land  to  the  board  had  been 
duly  executed  by  the  proper  state  officers, 
does  not  give  effect  to  Acts  1902,  No.  171, 
repealing  the  earlier  act,  so  as  to  present 
a  question  of  the  impairment  of  contract 
obligations,  reviewable  in  the  federal  su- 
preme court  by  writ  of  error.  Cross  Lake 
Shooting,  etc.,  Club  v.  Louisiana,  224  U. 
S.   632.   56   L.    Ed.   924,   32    S.   Ct.   577. 

715-54.  Determination  as  to  validity,  in- 
terpretation and  existence  of  contract. — 
Whether  or  not  municipal  taxation  under 
a  subsequent  statute  is  a  public  tax  within 
the  meaning  of  a  covenant  by  the  lessee 
of  a  municipality  to  pay  the  public  taxes 
which  sliall  become  due  on  the  land  is  a 
question  which  the  federal  supreme  court 
will  determine  for  itself  on  writ  of  error 
to  a  state  court  in  a  case  involving  the 
question  of  the  impairment  of  contract 
obligations  by  the  enforcement  of  the  tax. 
Perry  Co.  v.  Norfolk,  220  U.  S.  472,  55  L. 
Ed.  548.  31  S.  Ct.  465,  affirming  City  of 
Norfolk  V.  Perry  Co.,  108  Va.  28,  61  S.  E. 
867;  City  of  Norfolk  -■.  White.  108  Va.  35, 
61   S.   E.  870. 

720-69.  Showing  as  to  jurisdiction. — 
Whether  or  not  a  statute  of  a  sister  state 
alleged  to  create  contract  obligations  pro- 
tected against  impairment  by  the  contract 
clause  of  the  federal  constitution  has  been 
repealed  by  subsequent  legislation  pre- 
sents no  federal  question  for  review  on 
writ  of  error  from  the  federal  supreme 
court  to  a  state  court,  where  there  was 
neither  allegation  nor  proof  that  the  court 
of  last  resort  in  the  state  where  the  legis- 
lation was  enacted  had  considered  the 
question  or  made  any  ruling  upon  it. 
Texas,  etc..  R.  Co.  v.  Miller.  221  U.  S. 
408.  55  L.  Ed.  789.  31  S.  Ct.  534.  affirming 
judgment  (Tex.  Civ.  App.  1910),  128  S. 
W.  1165;  (1911).  Texas,  etc.,  R.  Co.  v. 
Gross,  221  U.  S.  417,  55  L.  Ed.  796,  31 
S.  Ct.  536.  affirming  judgment  in  (Tex. 
Civ.  App.  1910).   128   S.'W.   1173. 

721-72.  Action  by  city  for  water  rents. 
— A  writ  of  error  to  a  state  court  to  re- 
view a  judgment  in  favor  of  a  municipality 
in  an  action  for  water  rents  will  be  dis- 
missed for  want  of  jurisdiction.  Ander- 
son  V.    Inhabitants.   223   U.    S.    714,   56   L. 


90 


Vol.  I. 


APPEAL  AND  ERROR. 


721-729 


Where  Decision  Rests  on  Independent  Grounds. — See  note  73. 

(61)    Questions  of  General  Law — aa.    In  General. — See  note  *J1. 

bb.    Various  Specific  Applications  of  the  General  Rules. — See  notes  9,  20,  22. 


Ed.  626,  32  S.  Ct.  521.  citing  St.  Paul,  etc, 
R.  Co.  V.  Todd  County,  142  U.  S.  282,  35 
L.  Ed.  1014,  12  S.  Ct.  281;  St.  Paul  Gas 
Light  Co.  V.  St.  Paul,  181  U.  S.  142,  45  L. 
Ed.  788,  21  S.  Ct.  575;  New  Orleans 
Waterworks  Co.  :•.  Louisiana,  185  U.  S. 
336,  350,  46  L.  Ed.  936,  22  S.  Ct.  691; 
Hamblin  v.  Western  Land  Co.,  147  U.  S. 
531,  37  L.  Ed.  267,  13  S.  Ct.  353;  FarrelJ 
V.  O'Brien,  199  U.  S.  89,  100,  50  L.  Ed.  101, 
25  S.  Ct.  727;  Los  Angeles,  etc.,  Milling 
Co.  V.  Los  Angeles,  217  U.  S.  217,  226,  54 
L.    Ed.   736,   30    S.    Ct.   452. 

721-73.  Where  decision  rests  on  inde- 
pendent grounds. — As  was  said  by  Mr. 
Justice  Gray  in  New  Orleans  Waterworks 
Co.  V.  Louisiana  Sugar  Refin.  Co.,  125  U. 
S.  18,  39,  31  L.  Ed.  607:  "But  when  the 
state  court  gives  no  effect  to  the  subse- 
•quent  law,  but  decides,  on  grounds  inde- 
pendent of  that  law,  that  the  right  claimed 
was  not  conferred  by  the  contract,  the 
case  stands  just  as  if  the  subsequent  law 
had  not  been  passed,  and  this  court  has  no 
jurisdiction."  Missouri,  etc.,  R.  Co.  v. 
Olathe,  Xo.  2,  222  U.  S-  187,  190,  56  L.  Ed. 
156.  32  S.  Ct.  47. 

"The  plaintiff  says  that  there  is  no  con- 
stitutional question  before  this  court  be- 
cause the  supreme  court  of  Louisiana  put 
its  decision  partly  upon  the  ground  that 
the  defendant  had  not  acquired  all  of  its 
contract  rights  before  the  adoption  of  the 
constitution  of  1898.  Of  course  this  court 
must  satisfy  itself  upon  that  point  and 
therefore  has  jurisdiction."  Arkansas, 
etc..  R.  Co.  z'.  Louisiana,  etc.,  R.  Co.,  218 
U.  S.  431,  436,  54  L.  Ed.  1097,  31  S. 
Ct.  56. 

A  decision  of  the  highest  court  of  a 
state,  enforcing  the  payment  by  a  street 
railway  company  to  a  municipality  of  the 
sum  contracted  to  be  paid  when  the  road 
should  be  completed,  is  not  reviewable  in 
the  federal  supreme  court,  as  giving  ef- 
fect to  a  resolution  of  the  common  coun- 
cil which  the  company  asserts  impaired  its 
contract  right  to  construct  a  certain  turn- 
out, where  the  court  placed  its  decision 
distinctly  upon  the  ground  that,  without 
regard  to  that  resolution  or  to  the  ques- 
tion of  the  right  of  the  company  to  con- 
struct the  turnout,  the  money  was  payable 
because  the  road  had  been  substantially 
completed.  Missouri,  etc.,  R.  Co.  v.  Olathe, 
No.  2,  222  U.  S.  187.  56  L.  Ed.  156.  32  S. 
Ct.  47,  dismissing  writ  of  error  in  City  of 
Olathe  r.   Edson,  114  P.  228.  84  Kan.  408. 

A  decree  of  a  state  court  adverse  to  the 
contention  that,  if  the  state  constitution 
confers  on  one  railway  company  an  ex- 
emption from  a  special  tax  granted  in  aid 
of   another   railway   company,    it     impairs 


contract  obligations,  is  reviewable  in  the 
federal  supreme  court,  although  the  state 
court  rested  its  decision  in  part  upon  the 
ground  that  the  latter  railway  company 
had  not  acquired  all  of  its  contract  rights 
before  the  adoption  of  the  constitution. 
Arkansas,  etc.,  R.  Co.  v.  Louisiana,  etc., 
R.  Co.,  218  U.  S.  431,  54  L.  Ed.  1097,  31 
S.  Ct.  56,  affirming  decree  in  Louisiana  & 
A.  Ry.  Co.  V.  Shaw  (1908),  46  So.  994,  121 
La.  997. 

The  contention  that  an  attempt  in  the 
state  constitution  to  limit  taxation  im- 
pairs the  obligation  of  contracts  with  a 
municipal  school  board  does  not  present 
a  case  for  a  writ  of  error  from  the  federal 
supreme  court  to  review  a  decree  of  a  state 
court  which  refused  mandamus  to  compel 
the  levy  of  a  tax  to  pay  claims  and  judg- 
ments based  upon  such  contracts,  which 
rests  mainly  on  the  grounds  that  the  re- 
lators were  guilty  of  laches,  and  that  the 
statute  relied  upon  as  authorizing  such 
contracts  did  not  empower  the  school 
board  to  make  contracts  in  such  wise  as  to 
bind  the  municipality  to  levy  the  tax, 
neither  the  constitution  nor  any  subse- 
quent legislation  having  been  invoked  or 
enforced  by  the  court.  Fisher  v.  New  Or- 
leans, 218  U.  S.  438,  54  L.  Ed.  1099,  31  S. 
Ct.   57. 

726-91.  Questions  of  general  law. — 
Where  a  state  court  has  decided  against 
the  plaintiff  in  error  on  a  matter  of  general 
law  broad  enough  to  sustain  the  judgment, 
the  federal  supreme  court  will  not  con- 
sider the  federal  questions,  even  though 
they  may  have  been  actually  considered 
and  determined  adversely  to  his  conten- 
tion. Hale  z:  .A.kers,  132  U.  S.  554,  564,  33 
L.  Ed.  442.  10  S.  Ct.  171;  Gaar,  etc..  Co. 
z\  Shannon,  223  U.  S.  468,  56  L.  Ed.  510, 
32   S.   Ct.  236. 

The  principle  has  been  enforced  in  cases 
where  the  ruling  of  the  state  court  was 
based  on  the  application  of  the  doctrine 
of  res  judicata,  laches,  and  the  statute  of 
limitations.  Northern  Pac.  R.  Co.  v.  El- 
lis, 144  U.  S.  458.  36  L.  Ed.  504.  12  S.  Ct. 
724;  Hale  v.  Lewis,  181  U.  S.  473.  45  L- 
Ed.  959,  21  S.  Ct.  677;  Moran  z\  Horsky, 
178  U.  S.  205,  44  L.  Ed.  1038,  20  S.  Ct.  856; 
Pierce  v.  Somerset  Railway,  171  U.  S. 
641,  648,  43  L.  Ed.  316.  19  S.  Ct.  64;  Rec- 
tor z:  Ashlev.  6  Wall.  142,  18  L.  Ed.  733; 
Gaar.  etc..  Co.  z:  Shannon.  223  U.  S.  468. 
56  L.   Ed.  510,  32  S.   Ct.  236. 

729-9.  A  ruling  that  the  evidence  is  in- 
sufficient to  sustain  a  recovery  under  a 
petition  which,  while  founded  on  the 
Safety-Appliance  Act  of  March  2,  1893. 
fails  to  state  a  cause  of  action  under  that 
statute,  but  at  most  shows  a  right  of  re- 


91 


730-731 


APPEAL  AND  ERROR. 


Vol.  I. 


covery  at  common  law,  does  not  involve  a 
federal  question  open  to  examination  in 
the  federal  supreme  court  on  a  writ  of 
error  to  a  state  court.  Brinkmeier  v.  Mis- 
souri Pac.  R.  Co.,  224  U.  S.  268,  56  L.  Ed. 
758,  32  S.  Ct.  412. 

730-20.  Negligence. — Error  to  a  state 
court  to  review  a  judgment  of  its  highest 
court,  affirming  a  judgment  of  the  court 
below  in  favor  of  an  emploj^ee  in  a  suit 
for  personal  injuries  will  be  dismissed  for 
want  of  jurisdiction.  Quincy,  etc.,  R.  Co. 
V.  Shohoney,  223  U.  S.  705,  56  L.  Ed.  621, 
32  S.  Ct.  517;  Chicago,  etc.,  R.  Co.  v.  Brad- 
bury, 223  U.  S.  711,  56  L.  Ed.  624,  32  S. 
Ct.  520,  citing  Waters-Pierce  Oil  Co.  v. 
Texas,  No.  2,  212  U.  S.  112,  117.  53  L.  Ed. 
431,  29  S.  Ct.  227;  Leathe  t'.  Thomas,  207 
U.  S.  93,  52  L.  Ed.  118,  28  S.  Ct.  30;  Giles 
V.  Teasley,  193  U.  S.  146.  48  L.  Ed.  655, 
24  S.  Ct.  359;  Eustis  v.  Bolles,  150  U.  S. 
361,   37    L.    Ed.    1111,    14   S.    Ct.    131. 

A  writ  of  error  to  the  highest  state 
court  to  review  its  judgment,  affirming  a. 
judgment  of  the  court  below  in  that  state 
in  favor  of  the  plaintiff  in  a  suit  to  re- 
cover damages  for  the  death  of  an  em- 
ployee, will  be  dismissed  for  want  of  ju- 
risdiction. Coalgate  Co.  v.  Hurst,  225  U. 
S.  697,  56  L.  Ed.  1262,  32  S.  Ct.  838,  citing 
Wabash  R.  Co.  v.  Flannigan,  192  U.  S. 
29,  38,  48  L.  Ed.  328,  24  S.  Ct.  224;  United 
States  i\  Pridgeon,  153  U.  S.  48,  54,  38  L. 
Ed.  631,  14  S.  Ct.  746;  Shoshone  Min. 
Co.  V.  Rutter.  177  U.  S.  505,  508,  44  L.  Ed. 
864,  20  S.  Ct.  726;  Matter  of  Moran,  203 
U.  S.  96,  104,  51  L.   Ed.  105,  27  S.  Ct.  25. 

731-22.  Waiver  of  rights.— Whether  rail- 
way companies  waive  their  charter  rights- 
to  change  the  line  of  a  narrow-gauge  road, 
and  are  estopped  to  revoke  such  waiver, 
by  obtaining  the  consent  of  the  state, 
through  its  railroad  commission,  to 
broaden  and  standardize  that  line  through 
its  entire  length,  is  a  local,  and  not  a  fed- 
eral question,  and  can  not  be  reviewed 
on  a  writ  of  error  from  the  supreme  court 
of  the  United  States  to  a  state  court. 
Judgment  (1906),  41  So.  259,  89  Miss.  724, 
affirmed.  Mobile,  etc.,  R.  Co.  v.  Missis- 
sippi, 210  U.  S.  187,  52  L.  Ed.  1016,  28  S. 
Ct.  650. 

The  effect  of  a  valid  conveyance  to  the 
territory  of  Washington  by  a  claimant, 
under  the  Oregon  Donation  Act  of  Sep- 
tember 27,  1850  (9  Stat.  496,  c.  76).  after 
occupation  for  more  than  four  years,  but 
before  he  had  made  final  proof  under  that 
act,  upon  the  title  subsequently  given  him 
by  a  patent  from  the  United  States,  is  a 
question  of  local  law,  not  open  for  review 
upon  a  writ  of  error  from  the  federal  su- 
preme court  to  a  state  court.  Sylvester 
V.  Washington.  215  U.  S.  80,  54  L.  Ed.  101. 
30  S.  Ct.  25. 

Resulting  trust. — A  writ  of  error  to  a 
state  court  to  review  a  decree  of  its 
highest  court  affirming  a  decree  establish- 


ing resulting  trusts  in  land  will  be  dis- 
missed for  want  of  jurisdiction.  Thomas 
V.  Thomas,  220  U.  S.  607,  55  L.  Ed.  607,  31 
S.   Ct.  722. 

Domestication  of  corporations  created 
under  federal  statute. — Whether  or  not  the 
officers  of  the  state  grand  lodge  of  a  fra- 
ternal order  incorporated  under  the  fed- 
eral general  incorporation  act  of  May  5, 
1870,  may  prosecute  in  the  state  courts  an 
application  to  be  made  a  domestic  cor- 
poration is  a  question  nonfederal  in  char- 
acter, which  can  not  be  reviewed  by  the 
federal  supreme  court  on  writ  of  error  to 
a  state  court.  Creswill  v.  Grand  Lodge 
Knights,  225  U.  S.  246,  56  L.  Ed.  1074,  32 
S.   Ct.  822. 

Effect  of  a  voluntary  payment. — A  de- 
cision of  a  state  court  dismissing  a  suit  by 
a  foreign  corporation  to  recover  back  a 
franchise  tax  imposed  under  a  state  stat- 
ute which  is  alleged  to  contravene  the 
federal  constitution,  which  decision  rests 
in  part  on  the  ground  that  the  tax  was 
voluntarily  paid,  can  not  be  reviewed  in 
the  federal  supreme  court  if  the  question 
as  to  voluntary  payment  fairly  arises  on 
the  record,  although  the  federal  questions 
may  have  been  actually  considered  and 
determined  by  the  state  court.  Gaar,  etc., 
Co.  V.  Shannon,  223  U.  S.  468,  56  L.  Ed. 
510,  32  S.   Ct.  236. 

Amendment  of  'pleadings. — The  refusal 
to  allow  an  amendment  to  the  petition  in 
an  action  founded  on  the  original  Safety- 
Appliance  Act  of  March  2,  1893,  after  the 
cause  had  twice  been  tried  without  de- 
cisive result,  and  the  period  of  limitation 
had  expired,  so  as  to  allege  that  the  cars 
were  used  in  moving  interstate  traffic, 
involves  only  a  question  of  pleading  and 
practice  under  the  local  law,  which  is  not 
reviewable  in  the  federal  supreme  court 
on  writ  of  error  to  a  state  court.  Brink- 
meier V.  Missouri  Pac.  R.  Co.,  224  U.  S. 
268,  56  L.   Ed.   758.  32  S.   Ct.  412. 

Petition  for  assessment  of  land  for 
taxation. — The  dismissal  of  the  petition 
of  '  the  owner,  brought  under  Act 
Ky.  March  15,  1906,  c.  22,  art.  3, 
for  the  assessment  and  taxation  of  his 
lands  to  escape  the  forfeiture  provided  by 
that  statute,  because  such  petition  did  not 
contain  a  description  of  the  land  suffi- 
cient to  identify  it,  involves  no  federal 
question  which  can  be  reviewed  by  the 
federal  supreme  court  on  writ  of  error  to 
a  state  court,  unless  the  ruling  was  so 
arbitrarv  and  baseless  as  to  amount  to  a 
deprivation  of  due  process  of  law.  Ken- 
tucky Union  Co.  v.  Kentucky,  219  U.  S. 
140.  55  L.  Ed.  137,  31  S.  Ct.  171,  affirming 
judgments  (1907),  106  S.  W.  260,  127  Ky. 
667,  and  (1908),  108  S.  W.  931,  128  Ky. 
610,  111  S.  W.  362,  33  Ky.  Law  Rep.  85.7. 

Ouster  in  quo  warranto. — Error  to  a 
state  court  to  review  a  judgment  of  ouster 
in   quo  warranto   proceedings  will   be   dis- 


92 


Vol.  I. 


APPEAL  AND  ERROR. 


733 


dd.    General  Principles  of  Equity. — See  note  28. 

ee.  Principles  of  Comity. — Each  state  may,  subject  to  the  restrictions  of  the 
federal  constitution,  determine  the  limits  of  the  jurisdiction  of  its  courts,  the 
character  of  the  controversies  which  shall  be  heard  in  them,  and  specifically  how 
far  it  will,  having  jurisdiction  of  the  parties,  entertain  in  its  courts  transitory 
actions  where  the  cause  of  action  has  arisen  outside  its  borders.  The  federal 
supreme  court  has,  therefore,  no  authority  to  review  the  decision  of  the  state 
court,  so  far  as  it  holds  that  there  was  jurisdiction  to  hear  and  determine  a 
case.     On  that  question  the  decision  of  that  court  is  final. ^^^ 

ff.    Res  Adjiidicata,  Laches  and  Estoppel. — See  note  30. 


missed  for  want  of  jurisdiction.  Cassidy 
V.  People,  223  U.  S.  707,  56  L.  Ed.  622,  32 
S.  Ct.  518,  citing  Farrell  v.  O'Brien.  199 
U.  S.  98,  100,  50  L.  Ed.  101,  25  S.  Ct.  727; 
Kaufman  &  Sons  Co.  v.  Smith,  216  U.  S. 
610,  54  L.  Ed.  636,  30  S.  Ct.  419;  Elder  v. 
Badgley,  204  U.  S.  85,  51  L.  Ed.  381,  27 
S.   Ct.  223. 

Prosecution  for  keeping  disorderly 
house. — A  writ  of  error  to  a  state  court  to 
review  a  judgment  of  its  highest  court, 
affirming  a  judginent  of  an  intermediate 
court  of  appeals  in  the  state,  affirming  a 
conviction  of  the  trial  court  for  keeping 
a  disorderly  house,  will  be  dismissed  for 
want  of  jurisdiction.  Moore  v.  State,  223 
U.  S.  709,  56  L.  Ed.  623,  33  S.  Ct.  519,  cit- 
ing Farrell  v.  O'Brien,  199  U.  S.  89,  100, 
50  L.  Ed.  101,  25  S.  Ct.  727;  Kaufman  & 
Sons  Co.  V.  Smith,  216  U.  S.  610,  54  L. 
Ed.  636,  30  S.  Ct.  419;  Simon  v.  Craft,  182 
U.  S.  427.  45  L.  Ed.  1165,  21  S.  Ct.  836; 
Twining  v.  New  Jersey,  211  U.  S.  78,  111, 
53  L.  Ed.  97,  29  S.  Ct.  14;  FeUs  v.  Murphy, 
201  U.   S.  123,  50L.  Ed.  689,  26  S.  Ct.  366. 

Ejectment. — A  writ  of  error  to  a  state 
court  to  review  a  judgment  in  favor  of 
the  defendant  in  an  action  of  ejectment 
involving  title  to  school  lands  will  be 
dismissed  for  want  of  jurisdiction.  Thayer 
V.  Schaben.  223  U.  S.  714,  56  L.  Ed.  626, 
32  S.  Ct.  521,  citing  California  Nat.  Bank 
v.  Thomas,  171  U.  S.  441.  43  L.  Ed.  231.  19 
S.  Ct.  4;  Appleby  v.  Buffalo,  221  U.  S.  524. 
529.    55    L.    Ed.    838.    31    S.    Ct.    699. 

Discharge  from  attachment. — A  writ  of 
error  to  the  highest  state  court  to  review 
its  judgment,  reversing  an  order  of  the 
lower  court  releasing  and  discharging  cer- 
tain bonds  and  coupons  attached  thereto 
from  the  operation  of  a  writ  of  attach- 
ment, will  be  dismissed  for  want  of  juris- 
diction. De  Beam  v.  De  Beam,  225  U. 
S.  695.  56  L.  Ed.  1261.  32  S.  Ct.  834,  citing 
Toland  v.  Sprague,  12  Pet.  300,  331,  9  L. 
Ed.  1093;  Boyle  v.  Zacharie,  6  Pet.  648.  8 
L.  Ed.  532;  Loeber  v.  Schroeder.  149  U. 
S.  580.  37  L.  Ed.  856.  13  S.  Ct.  934;  Mis- 
souri, etc.,  R.  Co.  V.  Olathe,  222  U.  S.  185, 
56  L.  Ed.  155,  32  S.  Ct.  46. 

General  law  of  landlord  and  tenant. — A 
decision  of  a  state  court  that  the  general 
rule  making  the  landlord  responsible  for 
the  taxes  has  no  application  to  the  case 
of  a  perpetual  leaseholder  where  the  ten- 


ant is,  in  effect,  the  virtual  owner  of  the 
property  and  entitled  to  its  use  forever, 
presents  no  federal  question  which  can  be 
reviewed  by  the  federal  supreme  court  on 
writ  of  error.  Perry  Co.  v.  Norfolk,  220 
U.  S.  472,  55  L.  Ed.  548,  31  S.  Ct.  465,  af- 
firming judgments  (1908),  City  of  Nor- 
folk V.  J.  \V.  Perry  Co.,  61  S.  E.  867,  108 
Va.  28,  and  (1908),  J.  W.  Perry  Co.  v. 
White.  61  S.  E.  870,  108  Va.  35. 

733-28.  General  principles  of  equity. — 
A  writ  of  error  to  a  supreme  court  of  a 
state  to  review  a  decision  dismissing  a 
bill  in  a  suit  to  establish  a  trust,  will  be 
dismissed  for  want  of  jurisdiction.  Baird 
V.  Howison,  223  U.  S.  712,  56  L.  Ed.  625. 
32  S.  Ct.  520.  citing  Dewey  v.  Des  Moines, 
173  U.  S.  193.  205,  43  L.  Ed.  665,  19  S.  Ct. 
379;  Haire  v.  Rice,  204  U.  S.  291,  301,  51 
L.  Ed.  490,  27  S.  Ct.  281;  Thomas  v.  Iowa, 
209  U.  S.  258,  52  L.  Ed.  782,  28  S.  Ct.  487; 
Waters-Pierce  Oil  Co.  v.  Texas,  No.  2, 
212  U.  S.  112,  118,  53  L.  Ed.  431,  29  S.  Ct. 
227;  Goodrich  z\  Ferris,  214  U.  S.  71,  79, 
53   L.   Ed.  914,  29   S.   Ct.  580. 

733-29a.  Principles  of  comity. — St. 
Louis,  etc.,  R.  Co.  v.  Taylor,  210  U.  S.  281, 
S85,  52   L.  Ed.  1061,  28  S.  Ct.  616. 

The  contention  that  the  courts  of  Ar- 
kansas have  no  jurisdiction  of  causes  of 
action  arising  under  the  laws  of  the  In- 
dian Territory,  giving  a  right  of  action 
for  death,  does  not  present  a  federal 
question  which  will  sustain  a  writ  of  error 
from  the  supreme  court  of  the  United 
States  to  a  state  court.  Judgm,ent,  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Neal  (1906). 
98  S.  W.  958.  83  Ark.  591.  reversed.  St. 
Louis,  etc..  R.  Co.  v.  Taylor,  210  U.  S. 
281.   52   L.    Ed.   1061.  28   S.   Ct.  616. 

733-30.  Res  adjudicata. — A  writ  of  error 
to  a  state  court  to  review  a  judgment, 
which,  on  final  hearing,  dismissed,  on  the 
ground  of  res  judicata,  a  bill  seeking  to 
revoke  a  decree  of  adoption,  will  be  dis- 
missed for  want  of  jurisdiction.  Chase  v. 
Phillips.  223  U.  S.  715,  56  L-  Ed.  627,  32 
S.  Ct.  521.  citing  Farrell  v.  O'Brien,  199 
U.  S.  89,  100,  50X  Ed.  101.  25  S.  Ct.  727; 
San  Francisco  7.  Itsell,  133  U.  S.  65,  33 
L.  Ed.  570,  10  S.  Ct.  241;  Empire  State- 
Idaho  Min.,  etc..  Co.  v.  Hanley,  205  U.  S. 
225,  236,  51.  L.  Ed.  779,  27  S.  Ct.  476; 
Chase  V.  Phillips,  216  U.  S.  616,  54  L.  Ed. 
6.'5«.  30  S.  Ct.  577. 


93 


735-743 


APPEAL  AND  ERROR. 


Vol.  L 


gg.    Qualifications  of  General  Rules. — See  note  36. 

(62)  Where  Decision  of  State  Court  Depends  upon  the  Construction  of  State 
Statutes  and  Constitutions — aa.    In  General. — See  note  39. 

bb.  Various  Specific  Applications  of  the  General  Rules. — See  notes  54,  57^ 
58,  62,  74. 


Estoppel  by   abandonment    of    grant. — 

Contentions  in  a  suit  between  two  rail- 
way companies,  each  claiming  the  same 
right  of  way  through  an  Indian  reserva- 
tion, that  the  congressional  grant  to  one 
company  was  abandoned  by  the  grantee, 
and  that  the  circumstances  show  an  es- 
toppel to  claim  under  it,  do  not  present 
federal  questions  which  may  be  reviewed 
on  a  writ  of  error  from  the  federal  su- 
preme court  to  a  state  court.  Spokane, 
etc.,  R.  Co.  V.  Washington,  etc.,  R.  Co.. 
219  U.  S.  166,  55  L.  Ed.  159,  31  S.  Ct.  182, 
affirming  decree  (1908),  95  P.  64,  49 
Wash.  280. 

735-36.  Qualifications  of  general  rules. 
— "It  is,  however,  equally  well  settled  that 
if  the  federal  question  is  properly  pre- 
sented and  necessarily  controls  the  de- 
termination of  the  case,  the  appellate  ju- 
risdiction of  this  court  is  not  defeated  be- 
cause the  decision  is  put  upon  some  matter 
of  local  law.  West  Chicago  St.  R.  Co.  v. 
Chicago,  201  U.  S.  506,  520.  50  L.  Ed.  845, 
26  S.  Ct.  518."  Gaar,  etc.,  Co.  t-.  Shannon, 
223  U.  S.  468,  56  L.   Ed.  510,  32   S.  Ct.  236. 

736-39.  Where  decision  of  state  courts 
depend  upon  the  construction  of  state 
statutes  and  constitutions. — The  interpre- 
tation of  a  state  constitution  and  the  con- 
formity of  an  enactment  of  the  state  leg- 
islature to  that  constitution  are  questions 
solely  for  the  consideration  of  the  state 
courts,  whose  decision  thereon  concludes 
the  federal  supreme  court.  Hunter  v. 
Pittsburgh,  207  U.  S.  161,  52  L.  Ed.  151, 
28   S.    Ct.   40. 

The  construction  by  a  state  court  of 
the  statutes  of  that  state  and  its  rulings 
as  to  the  admissibility  of  evidence  furnish 
no  basis  for  a  writ  of  error  from  the  fed- 
eral supreme  court.  Los  Angeles,  etc., 
Milling  Co.  v.  Los  Angeles,  217  U.  S  217 
54  L.   Ed.  736.  30   S.  Ct.  452. 

The  decision  of  a  state  court  that  a 
void  provision  of  a  state  statute  is  sepa- 
rable from  its  valid  provisions  does  not 
present  a  federal  question  which  will  sus- 
tain a  writ  of  error  from  the  federal  su- 
preme court  to  a  state  court.  King  v. 
West  Virginia,  etc.,  Lumber  Co.,  216  U. 
S.  92,  54  h.  Ed.  396.  30  S.  Ct.  225. 

The  misconstruction  of  a  state  statute 
by  a  state  court  can  not  present  a  ques- 
tion which  will  sustain  a  writ  of  error 
from  the  federal  supreme  court  to  a  state 
court.  King  v.  West  Virginia,  etc..  Lum- 
ber Co.,  216  U.  S.  92,  54  L.  Ed.  396,  30  S. 
Ct.  225. 

740-54.  Prohibition  to  inferior  court.— 
A  writ  of   error   to   the   supreme   court   of 


the  state  to  review  a  judgment  denying  a 
petition  for  a  writ  of  prohibition  to  re- 
quire the  court  below  to  proceed  under 
the  juvenile  delinquent  act,  which  denial 
is  based  upon  a  repeal  of  such  act  after 
the  petition  was  filed  and  the  cause  sub- 
mitted, will  be  dismissed  for  want  of  ju- 
risdiction. Ferryman  v.  Coleman,  220  U. 
S.  602,  55  L.  Ed.  604,  31  S.  Ct.  716,  citing 
Mutual  Life  Ins.  Co.  v.  McGrew,  188  U. 
S.  291,  308,  47  L.  Ed.  480,  23  S.  Ct.  375; 
Farrell  v.  O'Brien,  199  U.  S.  89,  100,  50 
L.  Ed.  101,  25  S.  Ct.  727;  Kaufman  &  Sons 
Co.  V.  Smith,  216  U.  S.  610,  54  L.  Ed.  636, 
30  S.   Ct.  419. 

741-57.  Taxation.— "The  construction  of 
a  state  statute  and  the  conformity  to  it 
of  the  proceedings  of  the  taxing  officials 
were  questions  exclusively  for  the  supreme 
court  of  the  state,  and  we  have  no  au- 
thority to  review  its  determination  of 
them."  Elder  v.  Wood,  208  U.  S.  226.  233, 
52   L.   Ed.   464,  28  S.   Ct.   263. 

742-58.  Local  assessments  for  street  im- 
provements.— Whether  or  not  a  city  coun- 
cil has  determined  that  the  board  of 
public  works  has  complied  with  the  con- 
ditions of  its  jurisdiction  to  order  a  street 
improvement  is  not  a  federal  question, 
which  can  be  reviewed  by  the  federal  su- 
preme court  on  writ  of  error  to  a  state 
court.  Judgment,  City  of  Denver  v. 
Londoner  (1905)  80  P.  117,  33  Colo.  104, 
reversed.  Londoner  z'.  Denver,  210  U.  S. 
373,   52  L.   Ed.   1103,  28    S.   Ct.  708. 

A  w^rit  of  error  to  the  highest  state 
court  to  review  its  judgment  affirming  the 
judgment  of  the  trial  court  condemning 
certain  lands  for  street  railway  purposes 
in  proceedings  in  which  the  contention 
was  made  that  the  state  statute  was 
erroneously  construed  as  conferring  the 
power  of  eminent  domain  upon  a  suburban 
electric  railway  company,  and  by  such 
erroneous  construction  deprived  the  land- 
owner of  property  without  due  process 
of  law  and  denied  the  equal  protection  of 
the  laws,  will  be  dismissed  for  want  of 
iurisdiction.  Devon  ?'.  Cincinnati,  etc., 
R.  Co..  220  U.  S.  605,  55  L.  Ed.  605.  31  S. 
Ct.  718,  citing  First  Nat.  Bank  t'.  City 
Council.  215  U.  S,  341,  346.  54  L.  Ed.  223, 
30  S.  Ct.  152;  Rogers  v.  Clark  Iron  Co., 
217  U.  S.  589,  54  L.  Ed.  895,  30  S.  Ct.  693; 
Waters-Pierce  Oil  Co.  7-.  Texas,  No.  2, 
212  U.  S.  112,  117,  53  L.  Ed.  431.  29  S.  Ct. 
227;  Cincinnati,  etc.,  R.  Co.  v.  Slade.  216 
U.   S.  78,  83.  54  L.  Ed.  390,  30  S.  Ct.  230. 

743-62.  Criminal  Practice  Act.— The  con- 
struction given  by  the  Maryland  court  of 
appeals    to    Code    Pub.    Gen.     Laws      Md. 


94 


Vol.  I. 


APPEAL  AND  ERROR. 


745-748 


cc.    Bnactineut  of  State  Statutes. — See  note  75. 

(63)    Where  Decision  of  State  Court  Depends  upon  Questions  of  State  Prac- 
tice and  Procedure. — See  note  78. 


3  904,  art.  43,  §  99,  making  it  a  misdemeanor 
to  attempt  to  practice  medicine  without 
registration,  as  not  being  subject  to  the 
limitations  of  §  80  of  that  article,  relatmg 
to  the  sending  of  notice  to  unregistered 
physicians,  is  conclusive  upon  the  federal 
supreme  court  on  writ  of  error  to  the 
state  court.  Watson  v.  Maryland,  218  U. 
S.  173,  54  L.  Ed.  987,  30  S.  Ct.  644.  affirm- 
ing judgment  (1907),  66  A.  635,  105  Md. 
650. 

745-74.  Validity  of  initiative  and  refer- 
endum act. — Questions  as  to  the  validity 
under  the  state  constitution  of  Or.  Laws 
1907,  chap.  226,  authorizing  the  voters  of 
a  municipality  to  resort  to  the  initiative 
to  amend  its  charter,  and  as  to  the  regu- 
larity of  the  proceedings  leading  up  to  the 
adoption  of  an  amendment,  and  of  the 
proceedings  culminating  in  the  adoption 
of  a  particular  ordinance,  are  not  federal, 
and  hence  will  not  support  a  writ  of  error 
from  the  federal  supreme  court  to  a  state 
court.  Kiernan  v.  Portland,  223  U.  S. 
151,   56  L.    Ed.   386.   32   S.   Ct.   231. 

Construction  of  boom  in  river. — 
Whether  construction  of  a  boom  in  a 
navigable  stream  lying  entirely  within  the 
state  is  authorized  by  state  statutes  is  not 
a  federal  question  which  will  sustain  a 
writ  of  error  from  the  supreme  court  of 
the  United  States  to  a  state  court.  North 
Shore  Boom,  etc.,  Co.  v.  Nicomen  Boom 
Co.,  212  U.  S.  406,  53  L.  Ed.  574,  29  S.  Ct. 
355. 

Whether  the  notice  to  a  corporation  to 
produce  books  and  papers  before  a  grand 
jury  is  broader  than  that  provided  for  by 
Vermont  Act  of  November  9,  1906,  is  a 
question  of  the  construction  of  the  statute 
and  of  the  notice,  on  which  the  decision 
of  the  state  court  is  final,  and  not  review- 
able by  the  federal  supreme  court  on  writ 
of  error.  Consolidated  Rendering  Co.  v. 
Vermont,  207  U.  S.  541.  52  L.  Ed.'  327,  28 
S.    Ct.    178. 

Quo  warranto. — The  ruling  of  the 
highest  court  of  a  state  that,  under  the 
state  constitution,  it  had  jurisdiction  of 
the  subject  matter,  and  authority  to  enter 
judgment  of  ouster  and  fine  in  civil  quo 
warranto  proceedings  against  foreign  cor- 
porations holding  licenses  to  do  business 
in  the  state,  is  conclusive  on  the  federal 
supreme  court  rn  a  writ  of  error  to  the 
state  court,  regardless  of  whether  the 
judgment  is  civil  or  criminal,  or  both 
combined.  Standard  Oil  Co.  v.  Missouri, 
224  U.   S.  270.  56  L.  Ed.  760.  32   S.   Ct.  406. 

Collateral  questions  as  to  whether  quo 
warranto  proceedings  abated  as  against 
a  foreign  corporation  when  it  gave  notice 
of  its  withdrawal   from   the    state,   and   as 


to  whether  an  amendment  to  the  state 
anti-trust  act  operated  to  relieve  the  cor- 
poration from  the  penalties  for  all  com- 
binations in  restraint  of  trade  entered  into 
prior  to  the  adoption  of  the  amendatory 
statute,  are  not  reviewable  on  writ  of  er- 
ror from  the  federal  supreme  court  to  a 
state  court,  to  review  a  judgment  of 
ouster  and  fine,  where  such  judginent  was 
within  the  jurisdiction  of  the  state  court, 
and  within  the  issues  submitted.  Standard 
Oil  Co.  V.  Missouri,  224  U.  S.  270,  56  L. 
Ed.   760,  32   S.   Ct.  406. 

Delegation  of  legislative  power. — A  de- 
cision sustaining  the  validity  under  the 
state  constitution  of  an  alleged  delegation 
of  legislative  power  to  a  building  com- 
mission does  not  present  a  federal  ques- 
tion for  determination  by  the  federal  su- 
preme court  on  writ  of  error  to  a  state 
court.  Judgment  (1907),  79  N.  E.  745,  193 
:\lass.  364,  118  Am.  St.  Rep.  523.  Welch 
z'.  Swasey,  214  U.  S.  91,  53  L.  Ed.  923,  29 
S:  Ct.   .567. 

Married  women's  laws. — Whether  or 
not  the  rights  of  a  surviving  wife  in  the 
community  property  as  they  existed  when 
the  marriage  was  celebrated  were  correctly 
subjected  to  a  state  inheritance  tax  law 
subsequently  enacted  can  not  be  reviewed 
by  the  federal  supreme  court  when  de- 
termining, on  writ  of  error  to  a  state  court, 
the  validity  of  such  statute  under  the  con- 
tract clause  of  the  federal  constitution. 
Moffitt  z:  Kelly,  218  U.  S.  400,  54  L.  Ed. 
1086,  31  S.  Ct.  79,  afiirming  judgments  In 
re  Moffitt's  Estate  (1908),  95  P.  653,  1025, 
153   Cal.  359,  20   L.   R.  A.    (N.  S.)   207. 

The  nature  and  character  of  the  rights 
of  the  surviving  wife  in  the  community 
property  are  peculiarly  local  questions,  not 
open  to  review  by  the  federal  supreme 
court  when  determining,  on  a  writ  of  er- 
ror to  a  state  court,  whether  the  imposi- 
tion of  an  inheritance  tax  under  the  state 
laws  denies  to  the  wife  the  enual  protec- 
tion of  the  laws.  Moffitt  r.  Kelly.  218  U. 
S.  400,  54  L.  Ed.  1086.  31    S.  Ct.  19. 

746-75.  Enactment  of  state  statutes — 
Where  the  highest  court  of  a  state  decided 
that  a  state  statute  was  properly  enacted 
and  this  decision  was  sought  to  be  re- 
viewed in  the  federal  supreme  court,  hejd, 
that  the  stipreme  court  had  no  authority 
to  review  the  determination  of  the  highest 
court  of  the  state  of  the  proper  method 
of  proving  the  existence  of  its  own  laws. 
Sticknev  7'.  Kelsev.  209  U.  S.  419.  52  L. 
Ed.   863.   28    S.    Ct.   508. 

748-78.  Where  decision  of  state  court 
depends  upon  questions  of  state  practice 
and  procedure. — TIic  construction  and  ef- 
fect of  a  prior  decree  of  a  state  court,  and 


95 


754-770 


APPEAL  AND  ERROR. 


Vol.  I. 


s.  Transfer  of  Cause— (4)  Alloumice  of  Writ  of  Error — cc.  By  Whom  Al- 
loived. — See  note  3. 

(13)     Assignment  of  Errors.— See  post,  "Assignmgnt  of  Errors,"   X. 

Requisites  and  Sufficiency. — An  assignment  of  error  in  a  state  court  which 
has  refused  to  give  effect  to  a  judgment  of  a  circuit  court  of  the  United  States 
in  deciding  a  controversy  before  it,  which  states  the  refusal  of  the  trial  court 
to  give  proper  and  full  credit  to  the  judgment  of  the  circuit  court,  thereby  de- 
nying to  the  complaining  party  "a  right  arising  under  the  authority  of  the  United 
States,"  does  not  lack  certainty  of  specification,  so  as  to  prevent  the  supreme 
court  of  the  United  States  from  taking  jurisdiction  of  the  cause.'*''' 

t.    The  Record — (1)    In  General. — See  note  48. 

(2)  Fonn  and  Contents  of  Record — dd.  Petition  for  Rehearing. — Where  it 
appears  that  the  highest  court  of  the  state  delivered  two  opinions  in  the  case, 
one  on  the  first  hearing  and  the  other  on  a  rehearing,  the  petition  for  rehearing 
should  be  embraced  in  the  record  on  appeal  to  the  Supreme  Court  of  the  United 
States  especially  where  it  was  denied  by  the  state  court.  It  may,  however,  be 
assumed  that  the  court  in  denying  the  rehearing  considered  the  federal  ques- 
tion urged  on  the  first  hearing  of  the  court.^^^ 

hh.    Assignment  of  Errors. — See  note  71. 


how  far  it  bound  the  state,  and  whether 
or  not  it  bound  parties  subsequently  com- 
ing in,  are  matters  of  state  procedure,  the 
rulings  upon  which  can  not  present  any 
question  which  will  sustain  a  writ  of  er- 
ror from  the  federal  supreme  court  to  a 
state  court.  King  v.  West  Virginia,  etc., 
Lumber  Co.,  216  U.  S.  '32,  54  L.  Ed.  396, 
30  S.   Ct.  223. 

Whether  or  not  the  amount  due  to  the 
holders  of  certain  railroad  equipment 
bonds  on  the  issue  of  an  execution  against 
the  railway  company  can  be  determined  in 
a  proceeding  to  enforce  the  lien  of  such 
bonds  by  a  sale  of  the  railroad  property 
IS  not  open  on  a  writ  of  error  from  the 
supreme  court  of  the  United  States  to  a 
state  court.  Wabash  R.  Co.  v.  Adelbert 
College,  208  U.  S.  38,  52  L-  Ed.  379,  28  S. 
Ct.  182;  S.  C,  208  U.  S.  609,  52  L.  Ed. 
642.  28   S.   Ct.   425. 

754-3.  By  whom  allowed. — A  writ  of  er- 
ror from  the  federal  supreme  court  to  the 
supreme  court  of  the  state  of  Nebraska 
sufficiently  conforms  to  the  requirement 
of  Rev.  St.  U.  S.,  §  999  [U.  S.  Comp.  St. 
1901,  p.  712],  respecting  allowance  by  the 
Chief  Justice  of  the  state  court,  where  it 
is  signed  "John  B.  Barnes,  Presiding 
Judge  of  Supreme  Court  of  Nebraska,  in 
absence  of  Sedgwick,  ,C.  J.,  from  this 
state,"  and  the  truth  of  this  recital  is  not 
challenged.  Missouri,  etc.,  Land  Co.  7'. 
Wiese.  208  U.  S.  234,  52  L.  Ed.  460,  28  S. 
Ct.  294,  affirming  judgment  in  Wiese  f. 
Union  Pac.  Ry.  Co.  (Neb.  1906),  108  N. 
W.  175;  Missouri,  etc..  Land  Co.  z'.  Wrich, 
208  U.  S.  250,  52  L.  Ed.  473,  28  S.  Ct.  299, 
affirming  judgment  in  Wrich  v.  Union  Pac. 
Ry.    Co.    CNeb.    1906).   108    N.   W.    178. 

762-47a.  Requisites  and  sufficiency. — 
Judgment,     Kirven     r.     Virginia-Carolina 


Chemical  Co.  (1907),  58  S.  E.  424,  77  S. 
C.  493,  affirmed.  Virginia-Carolina  Chem- 
ical Co.  V.  Kirven,  215  U.  S.  252,  54  L.  Ed. 
179,  30  S.  Ct.  78. 

763-48.  A  federal  question  entirely  out- 
side the  record,  and  having  no  connection 
with  any  federal  question  which  is  raised 
in  the  record,  can  not  be  considered  by 
the  supreme  court  of  the  United  States  on 
writ  of  error  to  a  state  court.  Judgment, 
In  re  City  of  Pittsburg,  66  A.  348,  217  Pa. 
227;  Appeal  of  Hunter,  Id.,  affirmed. 
Hunter  v.  Pittsburgh,  207  U.  S.  161,  52  L. 
Ed.   151,  28   S.   Ct.   40. 

765-59a.  Petition  for  rehearing. — Kier- 
nan  t'.  Portland.  223  U.  S.  151,  56  L.  Ed. 
386,  32   S.  Ct.  231. 

770-71.  Assignment  of  errors. — The  as- 
signment of  errors  in  the  supreme  court 
can  not  raise  a  federal  question,  but  such 
review  is  confined  to  the  assignments  of 
error  made  and  passed  on  in  the  judg- 
ment brought  up  for  review.  Waters- 
Pierce  Oil  Co.  V.  Texas,  No.  2.  212  U.  S 
112,   53    L.   Ed.   431.   29   S.   Ct.   227. 

"It  is  well  settled  in  this  court  that  a 
review  of  the  judgment  of  a  state  court 
is  confined  to  the  assignments  of  error 
made  and  passed  upon  in  the  judgment  of 
the  state  court  brought  here  for  review. 
The  assignment  of  errors  in  this  court 
can  not  bring  into  the  record  any  new 
matter  for  our  consideration."  Waters- 
Pierce  Oil  Co.  V.  Texas,  No.  2,  212  U.  S. 
112,  115,  53  L.  Ed.  431,  29  S.  Ct.  227. 

An  attempt  to  assign  new  errors  in  a 
petition  for  rehearing  in  a  state  court 
which  is  overruled  without  an  opinion 
passing  on  federal  questions  can  not  avail 
to  import  such  questions  into  the  record. 
Waters-Pierce  Oil  Co.  v.  Texas,  212  U.  S. 
112,   53   L.   Ed.   431.  29   S.   Ct.   227. 


96 


Vol.  I. 


APPEAL  AND  ERROR. 


772-773 


u.  Scope  of  Reviezv — (1)  In  General. — See  note  85.  Questions  as  to  the 
validity,  under  Const.  U.  S.  Amends.  13,  14,  of  the  provision  of  Gen.  Acts  Ala. 
1907,  p.  636,  creating  a  presumption  of  criminal  intent  from  the  refusal  of  an 
employee  to  perform  service  without  refunding  money  obtained  from  his  em- 
ployer, are  not  open  on  a  writ  of  error  from  the  federal  supreme  court  to  re- 
view a  judgment  of  the  highest  court  of  the  state,  affirming  the  refusal  of  an 
inferior  court  to  discharge  the  accused  on  habeas  corpus,  where  all  that  appears 
from  the  record  is  that  the  accused  is  held  to  await  trial  on  a  charge  of  having 
obtained  money  from  his  employer  under  a  written  contract,  with  intent  to  de- 
fraud.ssa  "In  ascertaining,  on  a  writ  of  error  to  a  state  court,  what  credit  is 
given  to  these  judicial  proceedings  by  the  laws  and  usages  of  the  state  of  New 
Jersey,  we  are  limited  to  the  evidence  on  that  subject  before  the  court  whose 
judgment  we  are  reviewing. "'^f"' 

Qualifications  of  General  Rule. — The  exercise  of  the  appellate  jurisdiction 
of  the  federal  supreme  court  over  state  courts  extends  to  the  inquiry  whether, 
by  some  intervening  event,  the  federal  questions  presented  have  ceased  to  be 
material  to  the  right  disposition  of  the  cause,  and  to  the  disposition  of  the 
cause  in  the  light  of  that  event. ^^^  Thus,  the  rule  which  ordinarily  would  con- 
fine the  scope  of  review  in  the  federal  supreme  court  on  a  writ  of  error  to  an 
inferior  state  court,  presenting  questions  of  the  validity,  under  the  federal  con- 
stitution, of  a  state  statute  under  which  an  attorney's  fee  was  awarded  to  the 
successful  plaintiff^  below,  to  the  consideration  and  determination  of  the  federal 
question,  does  not  preclude  it  from  recognizing  the  changed  situation  produced 
by  a  decision  of  the  highest  state  court  pending  the  writ  of  error,  by  which  the 
statute  was  adjudged  invalid  because  the  subject  was  not  sufficiently  expressed 
in  the  title,  and  from  reversing  the  judgment  so  that  the  inferior  state  court  may 
•apply  the  decision  of  the  highest  state  court  by  awarding  a  new  judgment  in 
conformity  therewith. ^s'' 


772-85.  Scope  of  review. — "The  juris- 
diction of  this  court  to  review  the  pro- 
ceedings of  the  state  courts,  as  we  have 
had  frequent  occasion  to  declare,  is  not 
that  of  a  general  reviewing  court  in  er- 
ror, but  is  limited  to  the  specific  instances 
of  denials  of  federal  rights,  whether  those 
pertaining  to  the  constitutionality  of  fed- 
eral or  state  statutes,  or  to  certain  rights, 
immunities  and  privileges  of  federal  origin, 
specially  set  up  in  the  state  court  and  de- 
nied by  the  rulings  and  judgment  of  that 
court."  Waters-Pierce  Oil  Co.  v.  Texas, 
No.  2,  212  U.  S.  86,  97,  53  L.  Ed.  417,  29  S. 
Ct.  220. 

On  error  to  a  state  court,  the  supreme 
court  has  no  jurisdiction  to  notice  other 
errors  than  those  which  involve  alleged 
violations  of  federal  rights  secured  by  the 
constitution  of  the  United  States  or  fed- 
eral statutes.  The  states  have  the  right 
to  administer  their  own  laws  for  the 
prosecution  of  crime,  and  the  jurisdiction 
of  the  federal  supreme  court  extends  only 
to  the  reversal  of  such  state  proceedings 
where  fundamental  rights  secured  by  the 
federal  law  have  been  denied  by  the  pro- 
ceedings in  the  state  courts.  Franklin  7'. 
South  Carolina,  218  U.  S.  161,  164,  54  L. 
Ed.  980,  30  S.  Ct.  640. 

773-86a.  Bailey  v.  Alabama,  211  U.  S. 
452,  53  L.  Ed.  278.  29  S.  Ct.  141,  affirming 
judgment   in   48    So.    498. 

12   U   S    Enc— 7 


773-86b.    Tilt  v.  Kelsey,  207  U.  S.  43,  57, 
52   L.   Ed.  95,  28   S.   Ct.  1. 
773-88a.    Qualification  of  general  rule. — 

Gulf,  etc.,  R.  Co.  V.  Dennis,  224  U.  S.  503, 
56  L.  Ed.  860,  32  S.  Ct.  542. 

"While,  on  a  writ  of  error  to  a  state 
court,  our  province  ordinarily  is  only  to 
inquire  whether  that  court  has  erred  in 
the  decision  of  some  federal  question,  it 
does  not  follow  that  where,  pending  the 
writ,  a  statute  of  the  state  or  a  decision 
of  its  highest  judicial  tribunal  intervenes 
and  puts  an  end  to  the  right  which  the 
judgment  sustains,  we  should  ignore  the 
changed  situation,  and  affirm  or  reverse 
the  judgment  with  sole  regard  to  the  fed- 
eral question.  On  the  contrary,  we  are 
of  opinion  that  in  such  a  case  it  becomes 
our  duty  to  recognize  the  changed  situa- 
tion, and  either  to  apply  the  intervening 
law  or  decision,  or  to  set  aside  the  judg- 
ment and  remand  the  case  so  that  the 
state  court  may  do  so.  To  do  this  is  not 
to  review,  in  any  proper  sense  of  the 
term,  the  decision  of  that  court  upon  a 
nonfederal  question,  but  only  to  give  ef- 
fect to  a  matter  arising  since  its  jvidgment, 
and  bearing  directly  upon  the  right  dis- 
position of  the  case."  Gulf,  etc.,  R.  Co.  z: 
Dennis,  224  U.  S.  503,  56  L.  Ed.  860,  32  S. 
Ct.    542. 

773-88b.  Gulf,  etc.,  R.  Co.  z'.  Dennis.  224 
U.   S.  503,  56  L.   Ed.  860,  32  S.  Ct.  542. 


773-778 


APPEAL  AND  ERROR. 


Vol.  I. 


(2)    Irregularities  and  Mere  Errors. — See  note  90. 

(4)   Ouestions  of  Fact — aa.  In  General. — See  note  93. 

Quahfications  of  General  Rule.— While  it  is  true  that  upon  a  writ  of  error 
to  a  state  court  the  supreme  court  of  the  United  States  can  not,  as  a  general 
rule,  review  its  decision  upon  pure  questions  of  fact,  but  only  upon  questions 
of  law  bearing  upon  the  federal  right  set  up  by  the  unsuccessful  party,  it 
equally  is  true  that  such  court  may  examine  the  entire  record,  including  the  evi- 
dence, if  properly  incorporated  therein,  to  determine  whether  what  purports  to 
be  a  finding  upon  questions  of  fact  is  so  involved  with  and  dependent  upon 
such  questions  of  law  as  to  be  in  substance  and  effect  a  decision  of  the  latter. 
That  this  is  so  is  amply  shown  by  the  prior  rulings  of  the  federal  supreme 
court.''^''  Perhaps  the  most  frequent  exercise  of  this  power  occurs  in  cases 
arising  under  the  clause  of  the  constitution  forbidding  a  state  to  pass  any  law 
impairing  the  obligation  of  a  contract,  the  existence  of  the  contract  in  such 
cases  being  a  mixed  question  of  law  and  fact.^^''  A  like  exercise  of  this  power 
is  shown  in  cases  arising  under  the  clause  of  the  constitution  requiring"  full 
faith  and  credit  to  be  given  in  each  state  to  the  judicial  proceedings  of  every 
other  state.^^*^ 


773-90.    Power  to  correct  errors  in  trial. 

— "We  have  not  the  power  to  correct 
mere  errors  in  the  trials  in  state  courts, 
although  affirmed  by  the  highest  state 
courts.  This  court  is  not  a  general  court 
of  appeals,  with  the  general  right  to  re- 
view the  decisions  of  the  state  courts.  We 
may  only  inquire  whether  there  has  been 
error  committed  in  the  decision  of  those 
federal  questions  which  are  set  forth  in 
§  709,  Rev.  Stat."  St.  Louis,  etc.,  R.  Co. 
V.  Taylor,  210  U.  S.  281,  291,  52  L.  Ed. 
lOGl,  28   S.   Ct.  616. 

774-93.  Questions  of  fact  in  general. — 
The  ordinary  rule  is  that  questions  of  fact 
will  not  be  reviewed  by  the  federal  su- 
preme court  on  writs  of  error  to  state 
courts.  Thomas  v.  Texas.  212  U.  S.  278. 
281,  53  L.  Ed.  512,  29  S.  Ct.  393. 

Findings  of  fact  are  conclusive  on  writ 
of  error  to  a  state  court.  Judgment  (Tex. 
Civ.  App.  1908),  106  S.  W.  918,  affirmed. 
Waters-Pierce  Oil  Co.  v.  Texas.  No.  2,  212 
U.  S.  86,  53  L.  Ed.  417,  29  S.  Ct.  220. 

Findings  of  fact  of  a  state  court  are 
binding  on  the  federal  supreme  court  on  a 
writ  of  error  to  the  state  court.  Rankin 
V.  Emigh,  218  U.  S.  27,  54  L.  Ed.  915, _  30 
S.  Ct.  672,  affirming  judgment  in  Emigh 
V.  Earling  (1908),  115  N.  W.  128,  134  Wis. 
565. 

Acceptance  of  deed. — The  decision  of  a 
state  court  that  a  trust  deed  was  accepted 
by  a  national  bank  is  a  finding  of  fact  not 
reviewable  by  the  federal  supreme  court 
on  writ  of  error  to  the  state  court.  Ker- 
foot  V.  Farmers',  etc.,  Bank,  218  U.  S.  281, 
54  L.  Ed.  1042,  31  S.  Ct.  14,  affirming  de- 
cree in  Hall  v.  Same,  46  S.  W.  1000,  145 
Mo.   418. 

Location  of  vein  or  lode. — The  decision 
of  a  state  court  rejecting  the  contention 
of  an  owner  of  a  mining  claim  that  a  cer- 
tain  vein  or  lode  has  part  of  its  apex  in 
his  claim  is  not  reviewable  in  the  federal 


supreme  court,  where  the  case  turned 
upon  a  question  of  fact.  Mammoth  Min. 
Co.  V.  Grand  Cent.  Min.  Co.,  213  U.  S.  72, 
53  L.  Ed.  702,  29  S.  Ct.  413. 

Location  of  boundaries. — A  decision  by 
a  state  court  that  certain  tracts  of  land 
were  not  within  the  boundaries  of  a  land 
grant  rests  upon  a  question  of  fact,  which 
can  not  serve  as  the  basis  of  a  writ  of  er- 
ror from  the  federal  supreme  court  to  a 
state  court.  King  v.  West  Virginia,  etc., 
Lumber  Co.,  216  U.  S.  92,  54  L.  Ed.  396, 
30  S.   Ct.  225. 

Whether  discrimination  against  negroes 
because  of  race  or  color  was  practiced  by 
jury  commissioners  in  selection  of  grand 
and  petit  jurors  is  a  question  of  fact,  de- 
cision of  which  by  the  state  court  is  con- 
clusive on  the  federal  supreme  court,  on 
writ  of  error,  unless  so  grossly  wrong  as 
to  amount  to  infraction  of  the  federal  con- 
stitution. Judgment  (1906),  95  S.  W. 
1069.  49  Tex.  Cr.'R.  633,  affirmed.  Thomas 
V.  Texas,  212  U.  S.  278,  53  L.  Ed.  512,  29  S. 
Ct.  393. 

778-98a.  Qualification  of  general  rule. — 
Kansas  City,  etc..  R.  Co.  z:  Albers  Comm. 
Co.,  223  U.  S.  573,  56  L.  Ed.  556,  32  S.  Ct. 
316. 

778-98b.  Impairing  obligation  of  con- 
tract.— Kansas  City,  etc.,  R.  Co.  7'.  Albers 
Comm.  Co..  223  U.  S.  573,  56  L.  Ed.  556, 
32   S.   Ct.   316. 

778-98C.  Full  faith  and  credit. — Kansas 
City,  etc.,  R.  Co.  v.  Albers  Comm.  Co., 
223  U.  S.  573.  56  L.  Ed.  556,  32  S.   Ct.  316. 

"Thus,  in  Mackay  v.  Dillon,  4  How.  421, 
447,  11  L.  Ed.  1038,  where  the  state  courts 
had  given  to  certain  evidence  an  effect 
claimed  to  be  unwarranted  by  an  appli- 
cable law  of  congress,  it  was  held  that 
their  decision  'on  the  effect  of  such  evi- 
dence may  be  fully  considered  here.' " 
Kansas  City,  etc.,  R.  Co.  v.  Albers  Comm. 


98 


Vol.  I. 


APPEAL  AND  ERROR. 


779 


bb.  Rulings  on  Questions  of  Evidence. — ^While  it  is  true  that  upon  a  writ  of 
error  to  a  state  court  the  supreme  court  does  not  review  findings  of  fact,  never- 
theless two  propositions  are  as  well  settled  as  the  rule  itself,  as  follows:  (a)  That 
where  a  federal  right  has  been  denied  as  the  result  of  a  finding  of  fact  which 
it  is  contended  there  was  no  evidence  whatever  to  support,  and  the  evidence  is 
in  the  record,  the  resulting  question  of  law  is  open  for  decision ;  and  (b)  that 
where  a  conclusion  of  law  as  to  a  federal  right  and  a  finding  of  fact  are  so 
intermingled  as  to  cause  it  to  be  essentially  necessary,  for  the  purpose  of  pass- 
ing upon  the  federal  question,  to  analyze  and  dissect  the  facts,  to  the  extent 
necessary  to  do  so  the  power  exists  as  a  necessary  incident  to  a  decision  upon 
the  claim  of  denial  of  the  federal  right. ^'^ 


Co.,  223  U.  S.  573,  56  L.  Ed.  556,  32  S.  Ct. 
316. 

"In  Dower  v.  Richards,  151  U.  S.  658, 
667,  38  L.  Ed.  305,  14  S.  Ct.  452,  where  the 
conclusiveness  of  findings  of  fact  by  a 
state  court  was  elaborately  considered,  it 
was  recognized  that  where  the  question  is 
'of  the  competency  and  legal  effect  of  the 
evidence  as  bearing  upon  a  question  of  fed- 
eral law,  the  decision  may  be  reviewed  by 
this  court.'  "  Kansas  City,  etc.,  R.  Co.  v. 
Albers  Comm.  Co.,  223  U.  S.  573,  56  L.  Ed. 
556,   32   S.   Ct.  316. 

"In  Stanley  v.  Schwalby,  162  U.  S.  255, 
279,  40  L.  Ed.  960,  16  S.  Ct.  754,  which 
was  an  action  of  ejectment,  the  validity 
of  an  authority  exercised  under  the 
United  States  was  drawn  in  question, 
and  depended  upon  whether  the  United 
States  had  a  good  title  to  the  land  in  con- 
troversy. That  question  turned  upon 
whether  the  attorney  for  the  United 
States,  who  had  represented  it  in  the  ac- 
quisition of  the  land,  knew  at  the  time  of 
a  prior  deed  to  one  McMillan,  and  the 
state  court  found  that  he  had  such  knowl- 
edge. In  this  court  it  was  insisted,  on  the 
one  hand,  that  the  finding  was  conclusive, 
and,  on  the  other,  that  the  evidence  was 
insufficient,  as  matter  of  law,  to  warrant 
the  finding,  and  could  be  examined  to  de- 
termine whether  this  was  so.  In  that  con- 
nection this  court,  although  recognizing 
the  general  rule  that  findings  upon  pure 
questions  of  fact  are  not  open  to  review, 
said:  'But  so  far  as  the  judgment  of  the 
state  court  against  the  validity  of  an  au- 
thority set  up  by  the  defendants  under  the 
United  States  necessarily  involves  the  de- 
cision of  a  question  of  law,  it  must  be  re- 
viewed by  this  court,  whether  that 
question  depends  upon  the  constitution, 
laws,  or  treaties  of  the  United  States,  or 
upon  the  local  law,  or  upon  principles  of 
general  jurisprudence.'  And,  upon  examin- 
ing the  evidence,  this  court  held  it  to  be 
'wholly  insufficient,  in  fact  and  in  law,  to 
support  the  conclusion  that  the  attorney 
had  any  notice  of  the  previous  deed  to 
McMillan,'  and  accordingly  reversed  the 
judgment  of  the  state  court."  Kansas 
City,  etc.,  R.  Co.  v.  Albers  Comm.  Co., 
223  U.  S.  573,  56  L.  Ed.  556,  32  S.  Ct.  316. 


"And  in  Schlemmer  v.  Buffalo,  etc.,  R. 
Co.,  205  U.  S.  1,  51  L.  Ed.  681,  27  S.  Ct. 
407,  a  case  arising  under  the  federal  safety 
appliance  law,  wherein  the  state  court 
found  that  the  deceased  contributed  to  his 
injury  by  his  own  negligence,  thereby 
preventing  a  recovery,  this  court  exer- 
cised the  power  to  examine  the  evidence, 
notwithstanding  a  contention  that  the 
finding  was  conclusive,  and  reversed  the 
jud";ment  upon  the  ground  that  it  ap- 
peared that  what  had  been,  found  to  be 
contributory  negligence  was  at  most  an 
assumption  of  the  risk,  which  was  not  a 
defense  under  the  federal  statute."  Kansas 
City,  etc.,  R.  Co.  v.  Albers  Comm.  Co., 
223  U.  S.  573,  56  L.  Ed.  556,  32  S.  Ct.  316. 

779-4a.  Rulings  on  questions  of  evi- 
dence.— Kansas  City,  etc..  R.  Co.  v.  Al- 
bers Comm.  Co.,  223  U.  S.  573,  591,  56  L. 
Ed.  556,  32  S.  Ct.  316;  Cedar  Rapids  Gas, 
etc..  Co.  V.  Cedar  Rapids,  223  U.  S.  655, 
668,  56  L.  Ed.  594,  32  S.  Ct.  389;  Oregon 
R.,  etc.,  Co.  V.  Fairchild,  224  U.  S.  510,  56 
L.  Ed.  863,  32  S.  Ct.  535;  Creswill  v.  Grand 
Lodge  Knights.  225  U.  S.  246,  56  L.  Ed. 
1074,  32  S.  Ct.  822. 

A  question  of  law  arising  out  of  the 
contention  that  there  was  no  evidence 
whatever  to  support  a  finding  of  fact  as 
the  result  of  which  a  federal  right  was 
denied  is  open  to  review  in  the  federal 
supreme  court  on  writ  of  error  to  a  state 
court,  if  the  evidence  is  in  the  record. 
Creswill  v.  Grand  Lodge  Knights,  225  U. 
S.   246,   56   L.    Ed.   1074,   32   S.    Ct.   822. 

Necessity  for  trackage  connections  be- 
tween competing  railways. — Whether  or 
not  as  a  matter  of  law,  the  facts  proved 
show  the  existence  of  such  a  public  neces- 
sity for  trackage  connections  between 
competing  railway  companies  for  the  in- 
terchange of  business  as  authorizes  a  tak- 
ing of  propert}^  is  a  question  for  con- 
sideration in  the  federal  supreme  court  on 
writ  of  error  to  a  state  court,  in  a  case  in 
which  the  order  of  a  state  railway  com- 
mission requiring  such  connections  is  at- 
tacked as  denying  due  process  of  law. 
Oregon  R.,  etc.,  Co.  v.  Fairchild,  224  U. 
S.   510,  56  L.   Ed.  863.  32   S.   Ct.  535. 


99 


780-789 


APPEAL  AND  ERROR. 


Vol.  I. 


cc.   Findings  of  Fact  by  Referee. — See  note  6. 

ee.  Rule  in  Equity  Proceedings. — Since  §  709,  U.  S.  Comp.  Statutes,  1901,  p. 
575,  provides  that  a  writ  of  error  to  a  state  court  shall  have  the  same  effect  as 
if  the  judgment  or  decree  complained  of  had  been  rendered  or  passed  in  a  court 
of  the  United  States,  the  facts  are  not  open  to  re-examination  in  the  federal 
supreme  court.  And  merely  because  a  decree  of  the  state  court  can  be  reviewed 
only  by  a  writ  of  error  is  no  reason  for  construing  the  words  of  this  statute  as 
giving  to  a  writ  of  error  in  the  chancery  case  the  eft'ect  of  an  appeal,  thereby 
opening  the  evidence  to  re-examination  to  the  same  extent  as  upon  an  appeal. ^^^ 
But  the  evidence  in  an  equity  case  will  be  examined  by  the  supreme  court  of 
the  United  States  in  proceedings  in  error  to  the  state  court,  in  so  far  as  such 
examination  is  necessary  to  answer  questions  properly  saved,  coming  within 
the  appellate  jurisdiction  of  the  supreme  court  of  the  United  States,  where  the 
findings  to  be  reviewed  depend  on  questions  which  are  re-examinable  in  such 
court.i^'" 

v.  Affirmance,  Reversal  or  Disniissal — (3)  Reversal — aa.  In  General. — It 
would  require  a  very  clear  case  to  warrant  the  reversal  of  the  decree  of  the 
state  court,  which,  though  final  in  form,  merely  postpones  a  decision  upon  the 
merits  for  further  experience.^^a 

(4)  Dismissal — aa.  Grounds  for  Dismissal — ddd.  JVont  of  Substantiality  in 
Claim. — See  note  43.     The  consideration  which  the  highest  state  court  gives  to 


780-6.    Findings  of    fact    by     referee. — 

Exceptions  to  the  findings  of  fact  of  a 
referee,  or  to  his  refusal  to  find  facts  as 
requested,  can  not  be  considered  on  a  writ 
of  error  to  review  a  judgment  entered 
upon  the  facts  found.  Lupton's  Sons  Co. 
V.  Automobile  Club,  225  U.  S.  489,  56  L. 
Ed.  1177,  32  S.  Ct.  711,  citing  Roberts  v. 
Benjamin,  124  U.  S.  64,  74,  31  L.  Ed.  334, 
8  S.  Ct.  393;  Shipman  v.  Straitsville  Cent. 
Min.  Co..  158  U.  S.  356,  361,  39  L.  Ed. 
1015.  15  S.  Ct.  886;  Chicago,  etc.,  R.  Co. 
V.  Clark,  178  U.  S.  353,  364,  44  L.  Ed.  1099, 
20  S.  Ct.  924;  Heckers  v.  Fowler.  2  Wall 
123.  17  L.  Ed.  759;  Bond  v.  Dustin,  112  U. 
S.  604,  28  L.  Ed.  835,  5  S.  Ct.  296;  Paine 
V.  Central  Vermont  R.  Co.,  118  U.  S.  152, 
158.  30  L.  Ed.  193,  6  S.  Ct.  1019. 

Where  the  trial  is  had  before  a  referee 
pursuant  to  stipulation,  the  only  question 
presented  in  the  appellate  court  is  whether 
there  is  any  error  of  law  in  the  judgment 
rendered  by  the  court  upon  the  facts  found 
by  the  referee.  Lupton's  Sons  Co.  v.  Au- 
tomobile Club,  225  U.  S.  489,  56  L.  Ed. 
1177,  32  S.  Ct.  711. 

781-lOa.  Rule  in  equity  proceedings. — 
Cedar  Rapids  Gas.  etc.,  Co.  :■.  Cedar  Rap- 
ids, 223  U.  S.  655,  56  L.  Ed.  594,  32  S.  Ct. 
389. 

781-lOb.  Qualification  of  rule. — Cedar 
Rapids  Gas,  etc..  Co.  7\  Cedar  Rapids,  223 
U.  S.  655,  56  L.  Ed.  594.  32  S.  Ct.  389. 

787-32a.  Reversal. — Cedar  Rapids  Gas, 
etc.,  Co.  r.  Cedar  Rapids,  223  U.  S.  655,  56 
L.  Ed.  594,  32  S.  Ct.  389. 

A  judgment  of  a  state  court,  dismissing 
a  bill  to  restrain  the  enforcement  of  an  or- 
dinance fixing  90  cents  per  thousand  cubic 
feet  as  a  maximum  gas  rate,  without  prej- 
udice  to   a   later   suit  after   the   ordinance. 


which  had  not  been  enforced  before  the 
coinmencement  of  the  suit,  had  been  given 
a  fair  test,  the  court  estimating  on  a  value 
fixed  by  it  for  the  plant  considerably  in 
excess  of  its  cost,  that  the  return  under 
the  ordinance  would  be  over  6  per  cent, 
will  not  be  disturbed  on  review  by  the  su- 
preme court  of  the  United  States.  Cedar 
Rapids  Gas,  etc.,  Co.  v.  Cedar  Rapids,  223 
U.  S.  655,  56  L.  Ed.  594,  32  S.  Ct.  389. 

789-43.  Want  of  substantiality  in  claim. 
— Where  upon  a  writ  of  error  to  a  state 
court  it  appears  that  the  questions  pre- 
sented as  federal  questions  to  sustain  the 
jurisdiction  of  the  federal  supreme  court 
are  manifestly  frivolous,  the  writ  of  error 
must  be  dismissed.  Hendricks  v.  United 
States,  223  U.  S.  178,  56  L.  Ed.  394,  32  S. 
Ct.  313. 

If  it  appears  upon  the  hearing  of  a  writ 
of  error  to  a  state  court  that  the  federal 
question  is  frivolous  as,  for  example, 
where  it  involves  the  validity  of  a  sentence 
to  work  in  streets  and  public  places  the 
writ  of  error  will  be  dismissed.  Loeb  v. 
Jennings,  219  U.  S.  582,.  55  L.  Ed.  345.  31 
S.  Ct.  469,  citing  Waters-Pierce  Oil  Co.  v. 
Texas,  No.  2,  212  U.  S.  112,  118,  53  L.  Ed. 
431,  29  S.  Ct.  227;  Goodrich  v.  Ferris,  214 
U.  S.  71,  79.  53  L.  Ed.  914,  29  S.  Ct.  580; 
Griffith  7'.  Connecticut.  218  U.  S.  563,  54  L. 
Ed.  1151,  31  S.  Ct.  132. 

An  error  to  the  highest  state  court  to 
review  a  judgment  affirming  a  conviction 
of  manslaughter  had  in  the  trial  court  in 
the  state  will  be  dismissed  for  want  of  ju- 
risdiction. Hunter  v.  South  Carolina,  219 
U.  S.  582,  55  L.  Ed.  345,  31  S.  Ct.  470.  cit- 
ing Farrell  v.  O'Brien,  199  U.  S.  89,  100.  50 
L.  Ed.  101,  25  S.  Ct.  727;  Waters-Pierce 
Oil  Co.  V.  Texas,  No.  1,  212  U.  S.  86,  113, 


100 


Vol.  I.  APPEAL  AND  ERROR.  789-796 

a  question  claimed  to  be  a  federal  question  may  be  invoked  to  show  that  it  is  not 
so  far  frivolous  as  to  sustain  a  motion  to  dismiss.'*"*^ 
eee.    Moot  Cases. — See  note  45. 

(5)  Hearing  and  Determination. — Where  the  only  federal  question  involved 

has  been  decided  in  another  case  at  the  same  term,  the  hearing  of  a  motion  to 

dismiss   will  be  postponed  to   allow  it  to  be  amended  bv  adding  a  motion  to 
af!irm.52a 

(6)  Modification. — A  judgment  of  ouster  and  iine.  entered  against  a  foreign 
corporation  in  quo  warranto  proceedings  in  the  highest  court  of  a  state,  which 
can  not  be  reversed  on  the  federal  question  involved,  can  not  be  modified  so 
as  to  provide  that  the  judgment  shall  not  be  construed  to  conflict  with  a  decree 
entered  in  an  equity  cause  in  another  court,  to  which  the  corporation  is  a  party, 
nor  be  amended  by  adding  a  provision  that  the  judgment  of  ouster  shall  not 
operate  to  make  those  who  buy  the-  products  of  the  corporation  subject  to 
prosecution  under  a  statute  making  it  a  felony  for  any  person  to  deal  in  articles 
manufactured  by  a  corporation  whose  license  has  been  forfeited,  which  the 
court  has  no  right  to  assume  will  be  applied  so  as  to  interfere  with  interstate 
commerce. ^2b 

y.  Mandate — (1)  Remand  for  Further  Proceedings. — Where  it  appears  that, 
after  a  case  is  brought  to  the  federal  supreme  court  from  the  highest  court  of 
a  state,  the  questions  involved  have  ceased  to  be  material  to  the  right  disposition 
of  any  particular  case  by  reason  of  some  intervening  event,  the  court  in  declining 
to  hear  the  cause  will  not  dismiss  the  writ  because  that  would  leave  the  judg- 
ment to  be  enforced  as  rendered  contrary  to  the  changed  conditions  brought 
about  by  the  intervening  event.  Accordingly,  the  supreme  court  of  the  United 
States  will  vacate  the  judgment  so  that  the  state  court  may  apply  the  change  of 
conditions  to  the  case  by  awarding  a  new  judgment  in  conformity  therewith.^^a 

(4)  Compliance  with  Mandate. — The  order  and  remittitur  of  the  highest 
court  of  the  state,  to  be  in  compliance  with  the  mandate  of  the  federal  supreme 
court  which  has  reversed  the  state  court,  should  require  further  proceedings  to 
conform  to  the  opinion  of  the  federal  supreme  court.^^^  The  action  of  the  high- 
est court  of. a  state  in  remanding  a  cause  to  be  retried  on  the  settled  principles 
of  law  as  theretofore  declared  in  its  decisions,  instead  of  requiring  the  further 
proceedings  to  conform  to  the  opinion  of  the  federal  supreme  court,  as  the  man- 
date of  that  court,  which  had  reversed  a  judgment  of  the  state  court,  required, 
is  not  cause  for  reversing  the  judgment  rendered   on  the  second  trial  and  af- 

53  L.  Ed.  417,  29  S.  Ct.  220;  King  v.  West  missed  as  presenting  a  moot  case,  where 

Virginia,  etc.,  Lumber  Co.,  216  U.  S.  92.  54  the  election  to  be  afifected  by  the  decree 

L.   Ed.  396,  30  S.  Ct.  225;   Griffith  v.  Con-  has  long  since  been  held,  and  the  persons 

necticut.  218  U.  S.  563,  54  L.  Ed.  1151,  31  elected    have    been    admitted  to    their    re- 

S    Ct    13''  spective  seats,  and  their  successors  elected 

'789-44a.'     Determination    of   question.-  according  to  the   same   schenne  of  appoi^ 

West,    etc..  R.    Co.    v.    Pittsburgh    Constr.  Vt^'^c'''.^-    -?'r   rf  i?9i\^  c;^rrf.-'' 

Co.,    219  U.  S.  92.  55    L.  Ed.  107,  31  S.    Ct.  U.  S.  48..  o4  L.  Ed.  1121    31  S.  Ct  43. 

196    affirming  judgment  Pittsburgh  Const.  ^  791-52a      Hearing  and  determmation.- 

Co.  r.  West  Side  R.  R.  Co.  (1910),  75  A.  '^''\^^'\  ¥0,^""'''  ^^^  ^^  ^■'  ^^    '  ' 

iu„y,  ,^.<   l^a.  yj.  791-52b.    Modification.— Standard  Oil  Co. 

789-45.    Moot  Cases.— A  writ  of  error  to  ,,    ^jj^^o^ri    ^24  U.  S.  270,  56  L.  Ed.  760, 

review  a   decree   of  a   state  court   refusmg  .^\.,  ^    q^   ^q". 

to  require  a  state  official,  when  certifying  ^■' ^^  ^^^^  Mandate.-Gulf.  etc.,  R.  Co.  v. 
the  names  of  nommees  for  congres.  to  the  .  ^  g.  503.  56  L.  Ed.  800,  32  S. 
clerks  of  the  various  county  court?,  to  pro-  p.  .,0  --  ^  ^  ' 
ceed  under  the  Kentucky  congressional  '-t.  o4_.  ^  ,.  .  ,  ,  ^ 
apportionment  act  (Act  April  15.  1882),  796-69a,  Compliance  with  mandate- 
rather  than  under  Act  March  12,  1900,  Schlemmer  :•.  Buffalo,  etc.,  R.  Co.,  220  U. 
which  is  attacked  as  invalid,  must  be  dis-  S.  590,  55  L.  Ed.  596,  31  b.  Lt.  06I. 

101 


796-798 


APPEAL  AND  ERROR. 


Vol.  I. 


firmed  by  the  highest  state  court,  where  the  change  in  the  form  of  the  mandate 
has  not  worked  prejudice.^^*' 

8.  Over  Military  Courts  and  Tribunals. — See  notes  72,  74. 

9.  Over  Supreme  Court  of  Philippine  Islands — a.  In  General. — Section 
248  of  the  New  Judicial  Code  of  the  Act  of  March  3,  1911,  simply  re-enacts 
§  10  of  the  Philippine  Act  of  July  1,  1902,  as  set  forth  in  1  U.  S.  E.  797,  ex- 
cept, however,  in  the  latter  part  of  the  section  in  which  it  is  provided  that  the 
appeal  or  writ  of  error  must  be  brought  within  the  same  time,  in  the  same  man- 
ner, under  the  same  regulations,  and  by  the  same  procedure,  as  final  judgments 
and  decrees  of  the  district  courts  of  the  United  States  instead  of  the  circuit 
courts  as  provided  in  the  old  act,  the  circuit  courts  having  been  abolished.'^^^ 

b.  Amount  in  Controversy. — See  note  77. 


796-69b.  Schlemmer  v.  Buffalo,  etc.,  R. 
Co.,  220  U.  S.  590,  55  L.  Ed.  596,  31  S.  Ct. 
561,  affirming  judgment  71  A.  1053,  222  Pa. 
470. 

796-72.  Over  military  courts  and  tribu- 
nals.—See  post,  MILITARY  LAW. 

797-74.  By  certiorari. — Errors  and  in- 
justice done  in  the  proceedings  before  the 
examining  board  convened  under  the  au- 
thority of  the  act  of  October  1,  1890,  en- 
acted to  provide  for  the  promotion  or  re- 
tirement of  army  officers,  which  resulted 
in  the  discharge  of  an  officer  with  one 
year's  pay,  bj^  an  order  made  by  the  pres- 
ident, in  the  exercise  of  his  reserved  power 
to  review  the  proceedings  and  decisions 
of  such  board,  can  not  be  corrected  by  the 
courts  on  certiorari.  Reaves  v.  Ainsworth, 
219  U.  S.  296,  55  L.  Ed.  225,  31  S.  Ct.  230. 

797-76a.  In  general. — Error  to  the  su- 
preme court  of  the  Philippine  Islands  to 
review  a  judgment  which,  on  an  appeal 
taken  by  the  accused  from  a  sentence  to 
life  imprisonment  imposed  by  the  court  of 
first  instance  upon  a  conviction  of  murder, 
reversed  the  judgment  and  imposed  sen- 
tence of  death,  will  be  dismissed  as  not 
involving  anj^  federal  question.  Beecham 
V.  United  States,  223  U.  S.  708,  56  L.  Ed. 
.623,  32  S.  Ct.  518,  citing  Farrell  v.  O'Brien, 
199  U.  S.  89,  TOO,  50  L.  Ed.  101.  25  S.  Ct. 
727:  Kaufman  &  Sons  Co.  7'.  Smith,  216  U 
S.  610,  54  L.  Ed.  636.  30  S.  Ct.  419;  Downes 
V.  Bidwell,  182  U.  S.  344.  45  L.  Ed.  1088, 
21  S.  Ct.  770;  Hawaii  v.  Mankichi,  190  U. 
S.  197,  47  L.  Ed.  1016,  23  S.  Ct.  787;  Rass- 
mussen  v.  United  States,  197  U.  S.  516,  520, 
49  L.  Ed.  862'.  25  S.  Ct.  514;  Dorr  v.  United 
States,  19.S  U.  S.  1.^8.  49  L._Ed.  128.  24  S. 
Ct.  808;  Trono  z:  United  States,  199  U.  S. 
521.  50  L.  Ed.  292.  26  S.  Ct.  121;  Grafton 
z:  United  States.  206  U.  S.  333,  51  L.  Ed 
1084.  2T   S.  Ct.  749. 

Conduct  of  trial. — The  error,  if  any, 
committed,  by  the  court  of  first  instance,' 
when  determining  the  guilt  or  innocence 
of  accused,  in  considering  the  latter's  fail- 
ure to  testify  in  his  own  behalf,  is  not 
available  on  a  writ  of  error  from  the  fed- 
eral suprerne  court  to  the  supreme  court 
of  the  Philippine  Islands,  where  the  latter 
court,  in  denying  a  motion  for  new  trial 
after  its  decision  reducing  the  sentence  on 


the  accused's  appeal,  stated  that  it  did  not, 
as  the  trial  court  did,  take  the  accused's 
failure  to  testify  into  consideration.  Pen- 
dleton V.  United  States,  216  U.  S.  305,  54 
L.  Ed.  491,  30  _S.  Ct.  315. 

Cases  involving  a  treaty. — Judgments  of 
the  supreme  court  of  the  Philippine  Islands 
denying  any  liability  of  the  present  city 
of  Manila  upon  municipal  obligations  in- 
curred prior  to  the  cession  of  the  Philip- 
pine Islands  to  the  United  States  by  treaty 
with  Spain  (Act  Dec.  10,  1898,  30  Stat. 
1754),  are  rendered  in  cases  in  which  a 
treaty  of  the  United  States  is  involved, 
within  the  meaning  of  Act  July  1,  1902,  c. 
1369,  §  10,  32  Stat.  695  (U.  S.  Comp.  St. 
Supp.  1909,  p.  226),  governing  the  appel- 
late jurisdiction  of  the  federal  supreme 
court,  although  no  distinct  claim  under 
that  treaty  was  made  in  the  pleadings.  Vi- 
las V.  Manila,  220  U.  S.  345,  55  L.  Ed.  491, 
31  S.  Ct.  416. 

Denial  of  protection  afforded  by  Philip- 
pine Bill  of  Rights. — A  conviction  of  fal- 
sification of  documents  under  Pen.  Code 
P.  I.  art.  300,  els.  4,  7,  is  not  reviewable  in 
the  federal  supreme  court  as  involving  the 
denial  of  the  protection  aflforded  by  the 
Philippine  Bill  of  Rights,  where  the  most 
that  can  be  gathered  from  the  record  is 
that  the  accused  contended  that  the  com- 
plaint was  bad  by  the  rules  of  criminal 
pleading.  Paraiso  v.  United  States,  207  U. 
S.   368,  52   L.   Ed.  249,  28   S.   Ct.   127. 

Cases  involving  statute  of  United  States. 
— A  suit  to  restrain  the  defendant  from 
setting  up  title  to  certain  gold  mines  in 
the  Philippine  Islands,  or  interfering  with 
the  same,  and  to  obtain  an  accounting,  in 
which  the  meaning  and  effect  of  the  pro- 
visions of  Act  July  1,  1902  (32  Stat.  703,  c. 
1369),  §  45,  concerning  mining  titles,  are 
in  question,  is  one  in  which  a  statute  of 
the  United  States  is  "involved,"  within  the 
meaning  of  section  10  of  the  act  (32  Stat. 
695  [U.  S.  Comp.  St.  Supp.  1907,  p.  214]) 
defining  the  appellate  jurisdiction  of  the 
supreme  court  of  the  United  States  over 
the  supreme  court  of  the  Philippine  Is- 
lands. Reavis  v.  Fianza,  215  U.  S.  16.  54 
L.  Ed.  72.  30  S.  Ct.  1. 

798-77.  Amount  in  controversy. — State- 
ments in  the  complaint  and  amended  com- 


102 


Vol.  I. 


APPEAL  AND  ERROR. 


798-799 


c.  Remedies  for  Transferring  Cause. — See  note  79. 

d.  Rc-Examination   of  Facts. — See   notes   81.   85. 

Concurrent  findings  of  fact  by  the  two  lower  courts  in  support  of  a 
claim  of  certain  natives  of  the  Philippine  Islands  to  have  held  possession  of 
certain  mines,  and  to  have  worked  them  to  the  exclusion  of  all  others  down  to 
the  bringing  of  suit,  will  not  be  disturbed  by  the  supreme  court  of  the  United 
States  on  appeal  from  the  supreme  court  of  the  Philippine  Islands,  if  there  is 
some  evidence  of  the  facts  found. ^*^^ 

h.  The  Record. — The  denial  of  a  motion  for  rehearing  by  the  supreme  court 
of  the  Philippine  Islands  can  not  serve  to  bring  federal  questions  into  the  record, 
so  as  to  sustain  a  writ  of  error  from  the  supreme  court  of  the  United  States.^^^ 


plaint  in  a  suit  to  set  aside  a  convej^ance 
of  real  property,  from  which  inight  Se  in- 
ferred the  existence  of  the  jurisdictional 
amount  requisite,  under  Act  July  1,  1902, 
c.  1369,  §  10,  32  Stat.  695  (U.  S.  Comp.  St. 
Supp.  1909,  p.  226),  to  sustain  an  appeal 
from  the  supreme  court  of  the  Philippine 
Islands  to  the  federal  supreme  court,  are 
insufficient  as  against  a  motion  to  dismiss, 
where  the  record  otherwise  shows  that 
such  amount  is  not  involved.  Enriquez  v. 
Enriquez.  222  U.  S.  123.  56  L.  Ed.  122,  32 
S.  Ct.  62. 

The  value  of  the  real  property  involved 
in  a  suit  to  set  aside  conveyances  thereof 
as  fraudulent  simulations  can  not  be  said 
to  be  shown  by  a  preponderance  of  evi- 
dence to  be  in  excess  of  the  jurisdictional 
amount  prescribed  for  appeals  from  thf 
supreme  court  of  the  Philippine  Islands 
to  the  federal  supreme  court  by  an  affida- 
vit to  that  effect,  where  there  is  an  oppos- 
ing affidavit,  and  the  record  shows  that 
the  requisite  value  does  not  exist.  Enri- 
quez v.  Enriquez,  222  U.  S.  123,  56  L.  Ed. 
122.  32  S.   Ct.  62. 

An  affidavit  that  the  value  of  the  real 
property,  the  title  to  and  possession  of 
which  is  involved  in  a  suit  to  set  aside  a 
conveyance,  is  in  excess  of  the  jurisdic- 
l^ional  amount  prescribed  by  Act  July  1. 
1902.  c.  1369,  §  10,  32  Stat.  695  (U.  S.  Comp. 
St.  Supp.  1909,  p.  226),  governing  appeals 
to  the  federal  supreme  court  irom  the  su- 
preme court  of  the  Philippine  Islands,  is 
inadequate  to  sustain  such  an  appeal  from 
a  decree  which,  on  the  appeal  of  the  de- 
fendants alone,  reversed  a  decree  of  the 
trial  court,  upholding  such  conveyance  as 
against  the  objections  of  forgery  and 
mental  incapacity,  and  setting  the  same 
aside  as  to  one-half  of  the  property  only, 
on  the  ground  that  it  belonged  to  the  es- 
tate of  the  grantor's  deceased  wife,  as  an 
acquet  of  the  community.  Enriquez  v.  En- 
riquez. 222  U.  S.  123,  56  L.  Ed.  122,  32  S. 
Ct.  62. 

798-79.  Remedies  for  transferring  cause. 
— Writ  of  error  is  the  proper  mode  of 
bringing  up  to  the  federal  supreme  court 
for  review  a  judgment  of  the  supreme 
court  of  the  Philippine  Islands,  affirming 
a  judgment  below,  dismissing,  upon 
grounds  of  law.  an  application  for  the  reg- 
istration of  land.     Carino  v.  Insular  Gov- 


ernment, 212  U.  S.  449,  53  L.  Ed.  594,  29  S. 
Ct.  334. 

Writ  of  error,  and  not  appeal,  is  the 
proper  mode  of  bringing  up  to  the  federal 
supreme  court  for  review  a  judgment  of 
the  supreme  court  of  the  Philippine  Is- 
lands, affirming  a  judgment  of  the  court  of 
land  registration,  granting  registration  of 
a  part  only  of  a  tract  of  land.  Costas  v. 
Insular  Government.  221  U.  S.  623.  55  L. 
Ed.  884,  31  S.  Ct.  664. 

Writ  of  error,  and  not  appeal,  is  the 
proper  proceeding  to  obtain  a  review  in 
the  federal  supreme  court  of  a  judgment 
of  the  supreme  court  of  the  Philippine  Is- 
lands, affirming  a  judgment  of  the  court  of 
land  registration,  which  denied  registra- 
tion of  a  tract  of  land.  Tiglao  v.  Insular 
Government,  215  U.  S.  410,^54  L.  Ed.  257. 
30  S.  Ct.  129. 

798-81.  The  facts,  when  the  courts  be- 
low differ,  will  be  reviewed  bj'  the  federal 
supreme  court  under  Act  July  1,  1902,  c. 
1369,  §  10,  32  Stat.  695  (U.  S.  Comp.  St. 
Supp.  1907,  p.  214),  on  appeal  from  or  writ 
of  error  to  the  judgment  of  the  supreme 
court  of  the  Philippine  Islands.  Strong  z\ 
Repide,  213  U.  S.  419,  53  L.  Ed.  853,  29  S. 
Ct.  521. 

799-85.  Only  questions  of  law  are 
brought  up  for  review  bj'  a  writ  of  error 
from  the  federal  supreme  court  to  the  su- 
preme court  of  the  Philippine  Islands. 
Santos  V.  Holy  Roman  Catholic,  etc.. 
Church,  212  U.  S.  463.  53  L.  Ed.  599,  29  S. 
Ct.  338. 

Assignments  of  error  which  challenge 
the  sufficiency  of  the  evidence  to  warrant 
a  conviction  can  not  be  considered  by  the 
federal  supreme  court  on  a  writ  of  error  to 
the  supreme  court  of  the  Philippine  Is- 
lands, to  review  a  judgment  affirming  such 
conviction,  where  it  is  not  contended  that 
there  was  no  evidence  of  guiit.  since  only 
errors  of  law  can  be  considered  upon  a 
writ  of  error.  Ling  Su  Fan  v.  United 
States,  218  U.  S.  302,  54  L.  Ed.  1049.  31  S. 
Ct.  21. 

799-86a.  Concurrent  findings  of  fact. — 
Reavis  ;•.  Fianza.  315  U.  S.  16,  54  L.  Ed.  72, 
30  S.  Ct.  1. 

799-89a.  The  record. — Paraiso  v.  United 
States,  207  U.  S.  368.  52  L.  Ed.  249.  28  S. 
Ct.  127. 


103 


799-806  APPEAL  AND  ERROR.  Vol.  I. 

i.  Scope  of  Revieiv.— Theory  of  the  Case.— The  right  to  registration  of  a 
land  title  in  the  Philippine  Islands  on  the  ground  of  established  possession  when 
a  composition  deed  from  the  Spanish  authorities  was  issued  will  not  be  consid- 
ered by  the  federal  supreme  court,  when  reviewing  a  judgment  of  the  supreme 
court  of  the  Philippine  Islands,  which  affirmed  a  judgment  of  the  trial  court, 
refusing  registration  on  the  opposition  of  the  insular  government,  where  the 
case,  as  made  by  the  pleadings,  is  rested  solely  upon  the  right  to  register  result- 
ing from  the  composition  deed,  without  the  slightest  averment  of  possession 
prior  to  the  time  such  deed  was  issued,  except  as  it  may  be  considered  that  such 
possession  was  alleged  as  a  necessary  result  of  the  averments  as  to  the  deed, 
and  no  evidence  whatever  was  offered  concerning  the  possession  prior  to,  or 
at  the  time  of,  the  composition  deed,  irrespective  of  the  administration  proceed- 
ings leading  up  to  the  issue  of  such  deed,  and  following  upon  its  annulment,  the 
validity  of  the  deed,  as  depending  upon  the  competency  of  the  administrative 
officers  to  avoid  it  and  to  annul  the  composition  proceedings,  being  the  one  issue 
which,  as  understood  by  the  court  below  and  by  the  parties,  arose  upon  the  op- 
position of  the  government.^^*' 

11.  Over  Supreme  Court  oe  Porto  Rico  and  United  States  District  Court 
— a.  In  General. — See  note  18.  Only  matters  of  law  can  be  considered  by  the 
federal  supreme  court  on  the  appeal  authorized  by  Act  April  12,  1900,  c.  191, 
§  35,  31  Stat.  85,  to  be  taken  from  the  district  court  of  the  United  States  for 
the  District  of  Porto  Rico  in  the  same  manner  and  under  the  same  regulations 
as  from  the  supreme  courts  of  the  territories.^®*  But  §  244  of  the  New  Judi- 
cial Code  of  March  3,  1911,  makes  many  important  changes  in  appeals  and  writs 
of  error  from  the  supreme  court  of,  and  the  United  States  district  courts  for, 
Porto  Rico.  Such  writs  of  error  and  appeals  are  now  taken  within  the  same 
time,  in  the  same  manner,  and  under  the  same  regulations  as  writs  of  error  and 
appeals  are  taken  to  the  supreme  court  of  the  United  States  from  the  district 
courts,  and  is  not  to  conform  in  such  respects  to  writs  of  error  and  appeals  from 
territorial  courts  as  was  the  case  under  former  enactments. 

b.  Jurisdiction  as  Dependent  on  Amount  in  Controversy. — See  note  25.  Under 
§  244  of  the  New  Judicial  Code  of  March  3,  1911,  writs  of  error  and  appeals 
from  the  final  judgments  and  decrees  of  the  supreme  court  of,  and  the  United 
States  district  court  for,  Porto  Rico,  may  be  taken  and  prosecuted  to  the  su- 
preme court  of  the  United  States,  in  any  case  wherein  is  involved  the  validity 
of  any  copyright,  or  in  which  is  drawn  in  question  the  validity  of  a  treaty  or 

799-89b.  Theory  of  the  case. — Roura  zf.  appeals  to  the  federal  supreme  court  from 

Philippine  Islands,  218  U.  S.  386,  54  L.  Ed.  final    judgments    of  the    district    court    of 

1080,  31  S.  Ct.  73.  Porto  Rico  "in  the  same  manner  and  under 

805-18.    Over    supreme    court    of    Porto  the  same  regulations  and  in  the  same  cases 

Rico  and  the  United  States  district  court.  as  from  the  supreme  courts  of  territories." 

—The    appellate    jurisdiction    of    the    su-  Tefft,   etc.,  Co.  v.   Munsuri,  222   U.   S.  114, 

preme  court  of  the  United  States  over  the  56    L.   Ed.    118,  32    S.  Ct.  67.      See    post, 

supreme    court    of    Porto    Rico    formerly  BANKRUPTCY. 

arose  from  the  thirty-fifth   section  of  the  806-25.     Jurisdiction     as     dependent     on 

act  of  April  12,  1900  (31  Stat.  77,  85,  chap.  amount    in     controversy.— Under     act     of 

191).     Kent  t;.   Porto  Rico,  207  U.   S.   113,  April  12,  1900,  31  Stat.  77,  85,  c.  191,  when 

114,  52  L.  Ed.  127,  28  S.  Ct.  55.  ^hg  jurisdiction  of  the  supreme  court  to  re- 

805-18a.  Under  Act  April  12,  1900. — Gar-  view  the  decisions  of  the  district  court  of 

zot  V.  De  Rubio,  209  U.  S.  284,  52  L.  Ed.  the  United  States  for  the  district  of  Porto 

794.  28  _S.  Ct.  548.  Rico   depends  upon   amount.   $5,000  is   the 

No  right  to  have  an  order  of  the  district  criterion.    Aran  v.  Zurrinach,  222  U.  S.  395, 

cpurt  of  the  United  States  for  Porto  Rico  56  L.  Ed.  246,  32  S.  Ct.  162. 

sitting  as  a  court  of  bankruptcy  disallow-  Writs   of  error   to   the   district   court   of 

ing    certain    claims    against    a    bankrupt's  the  United  States  for  Porto  Rico  will  be 

estate    reviewed    in    the    federal    supreme  dismissed   where   judgments    reached    less 

court    is  given    by  the    provisions    of    Act  than  $5,000.     Valdes  v.  Munich,  212  U.  S. 

April  12,  1900,  c.  191,  §  35,  31  Stat.  85,  for  568,  53  L.  Ed.  654,  29  S.  Ct.  692. 

104 


Vol.  I. 


APPEAL  AND  ERROR. 


807-808 


statute  of,  or  authority  exercised  under,  the  United  States,  or  wherein  the  consti- 
tution of  the  United  States,  or  a  treaty  thereof,  or  an  act  of  congress  is  brought 
in  question  and  the  right  claimed  thereunder  is  denied,  without  regard  to  the 
sum  or  value  of  the  matter  in  dispute;  and  in  all  other  cases  in  which  the  sum 
or  value  of  the  matter  in  dispute,  exclusive  of  costs,  to  be  ascertained  by  the 
oath  of  either  party  or  of  other  competent  ^yitnesses,  exceeds  the  sum  or  value 
of  five  thousand  dollars. 

c.  Jurisdiction  as  Dependent  on  Claim  of  Federal  Right. — See  note  30. 

e.  Necessity  for  Finality  of  Judgment. — An  appeal  from  the  United  States 
district  court  for  Porto  Rico,  to  review  a  decree  in  a  suit  for  the  dissolution  of 
a  partnership,  which  finds  a  certain  lease  to  be  of  no  force  or  eflfect,  leaving 
for  future  determination  the  accounting  and  separation  of  the  property,  the 
case  being  retained  for  all  necessary  purposes,  will  be  dismissed  for  lack  of 
finality  of  the  judgment.^^* 


807-30.  Jurisdiction  as  dependent  on 
claim  of  Federal  right. — It  is  settled  that 
the  provisions  of  the  thirty-fifth  section  of 
the  act  of  April  12,  1900,  which  gives  a 
right  to  bring  the  federal  supreme  court 
from  the  district  court  of  Porto  Rico  by- 
writs  of  error  or  appeal  all  final  decisions 
of  such  court  in  all  cases  where  "an  act  of 
congress  is  brought  in  question  and  the 
right  claimed  thereunder  is  denied"  does 
not  contemplate  that  the  right  to  review 
thus  conferred  should  be  confined  solely 
to  cases  where  the  validity  of  an  act  of 
congress  is  called  in  question  or  its  inter- 
pretation is  necessarily  involved,  but  also 
gives  power  to  review  where  a  right  under 
an  act  of  congress  was  asserted  and  denied 
in  the  court  below.  Aran  v.  Zurrinach, 
222  U.  S.  395,  398,  56  L.  Ed.  246,  32  S.  Ct. 
163.  _ 

Frivolous  claim  that  federal  question  is 
involved. — Not  every  mere  question  of  ir- 
regularity, in  applying  the  law  of  the 
United  States,  which  arises  in  the  case  in 
the  court  below,  confers  a  right  to  review 
on  the  federal  supreme  court  which  other- 
wise would  not  exist,  and  when  from  the 
manner  in  which  questions  are  raised,  that 
is,  their  generality  of  statement  and  the 
absence  of  all  specification  to  sustain  thein, 
the  conclusion  is  justified  that  they  are  of 
a  frivolous  character,  the  appeal  will  be 
dismissed.  Aran  7'.  Zurrinach,  222  U.  S. 
395,  56  L.  Ed.  246,  32  S.  Ct.  162. 

The  federal  question  presented  by  the 
contention  that  the  changes  made  by  the 
Porto  Rico  Legislature  in  the  boundaries 
of  judicial  districts  and'  in  the  number  of 
judges  deprived  the  courts  affected  of  their 
validity,  under  Act  April  12,  1900,  c.  191, 
§  33,  31  Stat.  85,  legalizing  existing  tribu- 
nals, must  be  deemed  too  frivolous  to  sus- 
tain a  writ  of  error  to  the  supreme  court 
of  Porto  Rico  under  section  35  of  that  act, 
when  the  whole  of  section  33  is  consid- 
ered together  with  the  context  of  the  act, 
and  especially  with  section  15,  giving  the 
local  Legislature  the  power  of  amendment, 
alteration,    modification,    or   repeal.      Kent 


V.  Porto  Rico,  207  U.  S.  113,  52  L.  Ed.  127, 
28  S.  Ct.  55. 

Errors  assigned  with  respect  to  the  ac- 
tion of  the  trial  court  with  reference  to  an 
alleged  confession  of  guilt  furnish  no  basis 
for  the  exercise  by  the  supreme  court  of 
the  United  States  of  its  appellate  jurisdic- 
tion over  the  Porto  Rican  supreme  court, 
under  Act  April  12,  1900,  c.  191,  §  35,  31 
Stat.  85,  where  the  record  does  not  show 
even  the  semblance  of  the  assertion  or  de- 
nial of  a  right  under  the  federal  constitu- 
tion. Kent  v.  Porto  Rico,  207  U.  S.  113, 
52  L.  Ed.  127,  28  S.  Ct.  55. 

General  objections  to  the  jury  panel, 
based  upon  the  political  status  of  the  clerk 
of  the  court  and  of  the  jury  commissioner, 
or  upon  the  political  opinions  of  the  ju- 
rors, are  too  frivolous  and  wanting  in 
merit  to  afford  any  support  for  the  con- 
tention that  the  court,  in  overruling  a  mo- 
tion to  quash  the  panel  on  those  grounds, 
denied  a  right  claimed  under  an  act  of  con- 
gress, within  the  meaning  of  Act  Cong. 
April  12,  1900,  c.  191,  §  35  (31  Stat.  85), 
governing  the  appellate  jurisdiction  of  the 
federal  supreme  court  over  the  district 
court  of  the  United  States  for  the  district 
of  Porto  Rico.  Aran  v.  Zurrinach,  222  U. 
S.  395,  56  L.  Ed.  246,  32  S.  Ct.  162. 

Determination  of  existence  of  federal 
question. — "Tn  determining  whether  the  as- 
signments of  error  present  federal  ques- 
tions it  is  to  be  borne  in  mind  that  the 
mere  fact  that  some  of  the  assignments  re- 
lied on  assert  federal  rights  is  not  deter- 
minative, since,  even  although  the  assign- 
ments formally  involve  such  rights,  we 
are  nevertheless  without  jurisdiction  'where 
it  indubitably  appears  that  the  federal 
right  asserted  is  frivolous,  that  is,  without 
color  of  merit.'  American  R.  Co.  z'.  Cas- 
tro, 204  U.  S.  453,  51  L.  Ed.  564,  27  S.  Ct. 
466."  Kent  ?'.  Porto  Rico,  207  U.  S.  113, 
114,  52  L.  Ed.  127.  28  S.  Ct.  55. 

808-39a.  Finality  of  judgment. — Van 
Syckel  v.  Arsuaga,  220  U.  S.  601,  55  L.  Ed. 
603,  31  S.  Ct.  716,  citing  St.  Louis,  etc.,  R. 
Co.  v.  Southern  Exp.  Co.,  108  U.  S.  24,  28. 


105 


808-825 


APPEAL  AND  ERROR. 


Vol.  I. 


f.  Review  of  Findings  of  Fact. — The  findings  of  fact  made  by  the  district 
court  of  the  United  States  for  Porto  Rico  are  not  such  as  will  enable  the  federal 
supreme  court  to  determine  whether  or  not  they  support  the  judgment  on  an 
appeal  which,  under  the  act  of  April  12,  1900  (31  Stat,  at  L.  85,  chap.  191), 
§  35,  is  governed  by  the  rules  applicable  to  appeals  from  the  territorial  supreme 
courts,  where,  instead  of  stating  the  ultimate  facts,  the  findings  merely  embody 
conflicting  statements  of  counsel  concerning  the  facts  as  they  suppose  them  to 
be,  and  their  appreciation  of  the  law  which  they  deem  applicable. ^^^ 

E.  Under  Circuit  Court  of  Appeals  Act — 3.  Purpose:  or  Object  of  Stat- 
ute.— See  note  54. 

9.  Appellate  Jurisdiction  oe  Circuit  Court  oe  Appeals — a.  In  General. — 
A  circuit  court  of  appeals  has  jurisdiction  to  review  a  decree  of  a  federal  cir- 
cuit court,  dismissing  a  bill  to  restrain  a  municipality  from  removing  the  poles 
and  wires  of  a  telephone  and  telegraph  company  from  the  city  streets,  and 
from  preventing  the  placing  of  further  poles  and  wires  therein,  on  the  ground 
that  the  company  had  rights  under  the  act  of  July  24,  1866  (14  Stat,  at  L.  221, 
chap.  230,  Rev.  Stat.,  §§  5263,  et  seq.,  U.  S.  Comp.  Stat.  1901,  p.  3579),  that 
were  infringed,  and  that  the  conduct  of  the  city  has  given  rise  to  a  contract 
protected  against  impairment. ^^'^ 

Power  to  Issue  Writs. — Mandamus  to  require  a  federal  circuit  court  to 
proceed  with  and  determine  a  pending  suit  which  it  has  stayed  to  await  the  com- 
mencement and  prosecution  to  final  judgment  of  a  suit  in  a  state  court  may  be 
issued  by  a  circuit  court  of  appeals  as  in  aid  of  its  appellate  jurisdiction  under 
Act  March  3,  1891,  c.  517,  §  12,  26  Stat.  829  (U.  S.  Comp.  St.  1901,  p.  553), 
giving  the  circuit  courts  of  appeals  the  powers  specified  in  Rev.  St.  U.  S.,  §  716 
(U.  S.  Comp.  St.  1901,  p.  580),  to  issue  all  writs  not  specifically  provided  for 
by  statute,  and  necessary  for  the  exercise  of  the  court's  jurisdiction,  and  agree- 
able to  the  usages  and  principles  of  law.*'^'' 

i.  Finality  of  Judgments  and  Decrees — (2)  Interlocutory  Orders  Granting  or 
Refusing  Injunctions. — See  note  17. 


27  L.  Ed.  638,  2  S.  Ct.  6;  Southern  R.  Co. 
V.  Postal  Tel.,  etc.,  Co.,  179  U.  S.  G41,  644, 
45  L.  Ed.  355,  21  S.  Ct.  249;  Covington  v. 
Covington  First  Nat.  Bank,  185  U.  S.  270, 
277,  46  L.  Ed.  906,  22  S.  Ct.  645;  Heike  v. 
United  States,  217  U.  S.  423,  429,  54  L.  Ed. 
821,  30  S.  Ct.  539. 

808-39b.  Review  of  findings  of  fact. — 
Gonzales  v.  Buist,  224  U.  S.  126,  56  L.  Ed. 
693,  32  S.  Ct.  463. 

811-54.  Purpose  or  object  of  statute. — 
That  act  (26  Stat,  at  L.  826,  chap.  517,  U. 
S.  Comp.  Stat.  1901,  p.  488)  was  framed 
for  the  purpose  of  relieving  the  supreme 
court  from  the  excessive  burden  imposed 
upon  it  by  its  increasingly  crowded  docket, 
and  assigned  to  the  circuit  courts  of  ap- 
peals thereby  established  a  considerable 
part  of  the  appellate  jurisdiction  formerly 
exercised  by  the  supreme  court.  Ameri- 
can Constr.  Co.  v.  Jacksonville,  etc.,  R. 
Co.,  148  U.  S.  372,  37  L.  Ed.  486,  13  S.  Ct. 
758;  United  States  v.  Dickinson,  213  U.  S. 
92,  53  L.   Ed.  711,  29   S.   Ct.  485. 

The  object  of  the  act  of  March  3,  1891, 
c.  517,  26  Stat.  826.  was  to  distribute  the 
appellate  jurisdiction  of  the  supreme  court 
between  it  and  the  newly-created  circuit 
courts  of  appeal,  and  to  abolish  the  appel- 
late    jurisdiction     of     the     circuit     courts. 


Macfadden  v.  United  States,  213  U.  S.  288, 
292,  53  L.   Ed.  801,  29  S.  Ct.  490. 

814-66a.  Jurisdiction  of  circuit  court  of 
appeals. — Pomona  v.  Sunset  Tel.,  etc.,  Co., 
224  U.  S.  330,  56  L-  Ed.  788,  32  S.  Ct.  477. 

814-66b.  Power  to  issue  writs. — McClel- 
lan  V.  Carland,  217  U.  S.  268,  54  L.  Ed.  763, 
30  S.  Ct.  501. 

825-17.  Interlocutory  orders  granting  or 
refusing  injunctions. — On  appeal  to  the 
circuit  court  of  appeals  from  an  interlocu- 
tory decree  granting  or  continuing  an  in- 
junction or  appointing  a  receiver  the  court 
is  authorized  to  review  the  whole  of  the 
mterlocutory  decree,  not  merely  the  part 
granting  the  injunction,  but  also  to  deter- 
mine whether  there  was  any  insuperable 
objection,  in  point  of  jurisdictional  merits, 
to  the  maintainahce  of  the  suit,  and  if 
there  was  to  direct  a  final  decree  dismiss- 
ing the  bill.  United  States  Fidelity,  etc., 
Co.  V.  Bray,  225  U.  S.  205,  56  L.  Ed.  1055, 
32  S.  Ct.  620,  citing  Smith  v.  Vulcan  Iron 
Works,  165  U.  S.  518,  41  L.  Ed.  810,  17  S. 
Ct.  407;  In  re  Tampa,  etc.,  R.  Co.,  168  U.  S. 
583,  42  L.  Ed.  589,  18  S.  Ct.  177;  Mast,  etc., 
Co.  V.  Stover  Mfg.  Co..  177  U.  S.  485,  44 
L.  Ed.  856,  20  S.  Ct.  708;  Ex  parte,  etc.. 
Stamping  Co.,  201  U.  S.  156,  50  L.  Ed.  707, 
26  S.  Ct.  404. 


106 


Vol.  I. 


APPEAL  AND  ERROR. 


827-831 


j.  Limitations  upon  Appeal. — See  note  23. 

Appeals  in  Injunction  Cases.— The  thirty-day  limitation  prescribed  by  the 
act  of  March  3,  1891,  §  7,  for  appeals  in  injunction  cases,  applies  only  to  ap- 
peals thereunder  to  the  circuit  courts  of  appeals. ^S'^ 

k.  Double  Appeals. — See  note  32. 

(1^^)  Scope  of  Review. — The  entire  case  may  be  taken  to  the  circuit  court 
of  appeals  for  review  where  the  district  court  takes  jurisdiction  of  a  writ  of 
habeas  corpus  and  then  proceeds  to  determine  the  merits. ^^^ 

m.  Mandate. — The  circuit  court  of  appeals,  on  an  appeal  from  a  mere  inter- 
locutory order,  may  direct  the  bill  to  be  dismissed,  if  it  appears  that  the  com- 
plainant is  not  entitled  to  maintain  the  suit."^^ 

P.  Appellate  Jurisdiction  as  Dependent  upon  Amount  or  Value  in 
Controversy. — See  ante,  ''Over  Supreme  Court  of  Porto  Rico  and  United 
States  District  Court,"  III,  D,  11. 

2.  What  Law  Governs — a.  In  General. — The  limitation  with  reference  to  the 


827-23.  Limitations  upon  appeal.— A  writ 
of  error  for  the  review  in  a  circuit  court 
of  appeals  of  a  judgment  of  a  federal  dis- 
trict court  can  not  be  allowed  by  the  court 
after  the  expiration  of  the  six  months 
given  by  Act  Cong.  March  3,  1891,  c.  517, 
§  11,  26  Stat.  829  (U.  S.  Comp.  St.  1901,  p. 
552),  for  suing  out  such  writs.  Judgment 
(1907)  152  F.  925,  82  C.  C.  A.  73,  affirmed. 
Old  Nick  Williams  Co.  v.  United  States, 
215  U.  S.  541,  54  L.  Ed.  318,  30  S.  Ct.  221. 

Delay  in  settling  the  bill  of  exceptions, 
due  to  judicial  engagements  of  the  trial 
judge,  is  no  excuse  for  the  failure  to  sue 
out  a  writ  of  error  from  a  circuit  court  of 
appeals  to  a  federal  district  court  within 
the  six  months  allowed  by  x\ct  March  3, 
1891,  c.  517,  §  11,  20  Stat.  829  (U.  S.  Comp. 
St.  190],  p.  552),  although  an  assignment 
of  errors  should  accompany  the  petition 
for  the  writ  of  error,  since  such  assign- 
ment may  be  formulated  without  the  pre- 
vious settlement  of  the  bill  of  exceptions, 
and,  besides,  is  not  a  jurisdictional  require- 
ment. Old  Nick  Williams  Co.  v.  United 
States,  215  U.  S.  541,  54  L.  Ed.  318,  30  S. 
Ct.  221. 

827-25a.  Appeals  in  injunction  cases — 
United  States  Fidelity,  etc.,  Co.  v.  Bray, 
225  U.  S.  205,  56  L.  Ed.  1055,  32  S.  Ct.  620. 

830-32.  Double  appeals.— The  fact  that 
the  case  involves  grounds  which  warrant 
a  direct  appeal  to  the  federal  supreme 
court  does  not  deprive  the  circuit  court  of 
appeals  of  jurisdiction  if  the  case  is  one 
which  might  be  taken  to  the  latter  court. 
Railroad  Comm.  v.  Worthington,  225  U. 
S.  101,  56  E.  Ed.  1004,  32  S.  Ct.  653,  citing 
American  Sugar  Refin.  Co.  v.  New  Or- 
leans, 181  U.  S.  277,  45  E.  Ed.  859,  21  S.  Ct. 
646;  Macfadden  v.  United  States,  213  U.  S. 
288,  53  L.  Ed.  801,  29  S.  Ct.  490. 

An  appeal  lies  to  the  appropriate  federal 
circuit  court  of  appeals  from  a  final  decree 
of  a  circuit  court  in  a  suit  in  which  juris- 
diction was  invoked  both  because  the  case 
was  ancillary  to  a  receivership  suit  which 
depended    upon    diverse    citizenship,    and 


upon  grounds  which  involved  alleged  in- 
fractions of  the  federal  constitution  and 
rights  secured  thereby  which  might  have 
warranted  a  direct  appeal  to  the  federal 
supreme  court.  Railroad  Comm.  v.  Wor- 
thington, 225  U.  S.  101,  56  L.  Ed.  1004,  32 
S.  Ct.  653. 

A  circuit  court  of  appeals  is  not  without 
jurisdiction  of  an  appeal  from  a  decree  of 
a  federal  circuit  court  in  a  suit  founded 
upon  a  decree  of  that  court  because  the 
petition  for  the  removal  of  the  suit  from 
the  state  court  in  which  it  was  brought 
alleges  that  the  construction  of  the  federal 
constitution  is  involved.  Kansas,  etc.,  R. 
Co.  V.  Zimmerman,  210  U.  S.  336,  52  L.  Ed. 
1084,  28  S.  Ct.  730. 

The  question  as  to  jurisdiction  below, 
when  in  issue,  is  reviewable  in  the  circuit 
court  of  appeals  on  a  writ  of  error  to  a 
circuit  court,  bringing  up  the  whole  case, 
although  the  circuit  court,  under  Act 
March  3,  1891,  c.  517,  §  5,  26  Stat.  827  (U. 
S.  Comp.  St.  1901,  p.  549),  might  have  cer- 
ti^ed  the  sole  question  of  jurisdiction 
directly  to  the  supreme  court.  Judgment 
(1906)  149  F.  42,  79  C.  C.  A.  64,  affirmed. 
Eoston.  etc..  Railroad  i:  Gokey,  210  U.  S. 
155,  52  L.  Ed.  1002,  28  S.  Ct.  057. 

831-35a.  Scope  of  review. — Tang  Tun  v. 
Edsell,  223  U.  S.  073,  56  L.  Ed.  606,  32  S. 
Ct.  359,  citing  United  States  v.  Jahn,  155 
U.  S.  109,  39  L.  Ed.  87,  15  S.  Ct.  39; 
Spreckles  Sugar  Ref^n.  Co.  v.  McClain,  192 
U.  S.  397,  407.  48  L.  Ed.  496,  24  S.  Ct.  376; 
United  States  v.  Ju  Tov,  198  U.  S.  253.  259, 
49   L.   Ed.   10 to.  25   S.  Ct.  644. 

831-36a.  Mandate. — Metropolitan  Water 
Co.  V.  Kaw  Valley,  etc..  District.  223  U.  S. 
519,  56  L.  Ed.  533,  32  S.  Ct.  246.  following 
Smith  V.  Vulcan  Iron  Works,  165  U.  S.  518, 
41  L.  Ed.  810,  17  S.  Ct.  407;  In  re  Tamna, 
etc..  R.  Co.,  168  U.  S.  583,  42  L.  Ed.  589, 
18  S.  Ct.  177;  Ex  parte,  etc..  Stamping  Co., 
201  U.  S.  156,  50  L.  Ed.  707,  26  S.  Ct.  404; 
Bissell,  Carpet-Sweeper  Co.  v.  Goshen 
Sweeper  Co.,  19  C.  C.  A.  25,  43  U.  S.  App. 
47,  72  Fed.  545  (5),  556-560. 


107 


833-866 


APPEAL  AND  ERROR. 


Vol.  I. 


amount  in  dispute,  prescribed  by  the  act  of  March  3,  1887  (24  Stat,  at- L.  505, 
chap.  359,  U.  S.  Comp.  Stat.  1901,  p.  754),  for  appeals  from  or  writs  of  error 
to  a  federal  district  court  sitting  as  a  court  of  claims,  remains  in  force,  not- 
withstanding the  provision  of  the  circuit  courts  of  appeals  act  of  March  3,  1891 
(26  Stat,  at  L.  826,  chap.  517,  U.  S.  Comp.  Stat.  1901,  p.  488),  §  14,  that  "all 
acts  and  parts  of  acts  relating  to  appeals  or  writs  of  error  inconsistent  with  the 
provisions  for  review  by  appeals  or  writs  of  error  in  the  preceding  §§  5  and  6 
of  this  act  are  hereby  repealed. ^^^ 

3.  RkviE-w  of  Proce;edings  in  ParticuIvAr  Courts — a.  Appeals  from  Terri- 
torial Courts. — See  note  58. 

d.  Appeals  from  District  of  Columbia. — See  note  65. 

11.  Amount  Actually  in  Dispute  Controls — a.  In  General. — See  note  82. 

e.  Collateral  Effect  of  Judgment. — See  note  89. 

13.  Aggre^gate;  Amount  of  Dfmand^ — g.  Suit  to  Recover  Possession  of  Land. 
— See  note  29. 


8S3-55a.  What  law  governs. — Reid  v. 
United  States,  211  U.  S.  529,  53  L.  Ed.  529, 
29  S.  Ct.  171. 

835-58.  Appeals  from  territorial  courts. 

— Appeals  and  writs  of  error  were  allowed 
from  the  supreme  court  of  Oklahoma  to 
the  federal  supreme  court  where  the  value 
of  the  property  or  the  amount  in  contro- 
versy, to  be  ascertained  by  the  affidavit  of 
either  party  or  other  competent  witness, 
exceeds  $5,000.  Supplement  U.  S.  Revised 
Stats,  vol.  1,  p.  724;  Beadles  v.  Smyser, 
209  U.  S.  393,  400,  52  L.  Ed.  849,  28  S".  Ct. 
522. 

836-65,  Appeals  from  District  of  Colum- 
bia.— Jurisdictional  limit  upon  writs  of 
error  and  appeals  to  or  from  the  court  of 
appeals  of  the  District  of  Columbia  is 
$5,000,  exclusive  of  interest  and  costs.  See 
act  of  February  9,  1893,  c.  74,  27  Stat.  434, 
436.  Wallach  v.  Rudolph,  217  U.  S.  561, 
562,  54  L.  Ed.  883,  30  S.  Ct.  587. 

840-82.  Amount  actually  in  dispute  con- 
trols.— "The  value  of  the  matter  in  dispute 
in  this  court  is  the  test  of  our  jurisdicticm. 
Hilton  V.  Dickinson,  108  U.  S.  165,  27  L 
Ed.  688,  2  S.  Ct.  424."  Martinez  v.  Inter- 
national Banking  Corp..  220  U.  S.  214,  221, 
55  L.   Ed.  438,  31   S.  Ct!  408. 

842-89.  Collateral  effect  of  judgment. — 
"Jurisdiction  is  to  be  determined  by  the 
amount  directly  involved  in  the  decree  ap- 
pealed from,  and  not  by  any  contingent 
demand  which  may  be  recovered,  or  any 
contingent  loss  which  may  be  sustained 
by  either  one  of  the  parties  through  the 
probative  effect  of  the  decree,  however 
direct  its  bearing  upon  such  contingency." 
Hollander  v.  Fechheimer,  162  U.  "S.  326, 
328,  40  L.  Ed.  985.  16  S.  Ct.  795;  Wallach 
T'.  Rudolph,  217  U.  S.  561.  562,  54  L.  Ed. 
883,  30  S.  Ct.  587. 

The  contingent  liability  of  owners  of 
property  assessed  for  benefits  accruing 
from  a  street  extension,  incurred  by  rea- 
son of  their  disposal  of  other  property 
pending  the  condemnation  proceedings, 
under   an  undertaking  to  remove   the   lien 


of  any  assessment  for  benefits  which 
might  be  made  therein,  does  not  enter  into 
the  amount  in  dispute  on  a  writ  of  error 
from  the  federal  supreme  court  to  review 
a  judgment  of  the  court  of  appeals  of  the 
District  of  Columbia,  confirming  the  as- 
sessment as  to  the  property  owned  by 
them.  Wallach  7-'.  Rudolph,  217  U.  S.  561. 
54   L.   Ed.  883,  30  S.   Ct.  587. 

866-29.  Suit  to  recover  possession  of 
land. — Where  a  complaint  alleges  a  joint 
entry  and  ouster,  and  the  answer  takes  is- 
sue, without  setting  up  separate  claims  to 
distinct  parcels  by  the  several  defendants, 
and  the  judgment  for  the  recovery  of  pos- 
session is  against  all  the  defendants 
jointly,  then  the  measure  of  appellate 
jurisdiction  is  the  value  of  the  whole  land. 
Tupino  v.  La  Compania  General  De  Tab- 
acos,  214  U.  S.  268,  53  L.  Ed.  992,  29  S.  Ct. 
GIO,  following  Friend  v.  Wise,  111  U.  S. 
797,  28  L.  Ed.  602,  4  S.  Ct.  695. 

Where  the  pleadings  show  that  there 
v.^as  no  allegation  of  joint  ownership  or 
joint  possession,  and  that  the  controversy 
with  each  defendant  related  to  a  separate 
and  distinct  lot  of  land,  and  the  judgment 
is  rendered  separately  against  the  defend- 
ants, then  the  measure  of  jurisdiction  on 
appeal  or  writ  of  error  is  not  the  value  of 
the  whole  land,  but  the  value  of  each  part 
separately.  Tupino  v.  La  Compania  General 
De  Tabacos.  214  U.  S.  268,  53  L.  Ed.  992, 
29  S.  Ct.  610,  following  Tupper  v.  Wise, 
110  U.  S.  398,  28  L.  Ed.  189,  4  S.  Ct.  26. 

The  judgment  in  a  suit  to  recover  realty 
in  which  olaintiff,  though  claiming  under 
a  single  title  all  land  occupied  separately 
by  various  defendants,  does  not  allege 
joint  ownership  or  joint  possession  or 
joint  action  of  any  kind,  controversy  with 
each  defendant  relating  to  a  separate  and 
distinct  parcel,  does  not  show  an  amount 
in  dispvite  svifficient  to  sustain  writ  of  error 
from  the  federal  supreme  court,  where 
such  judgment,  while  apparently  rendered 
jointly,  so  far  as  damages  are  concerned, 
against    all     defendants,     runs     separately 


108 


Vol.  I. 


APPEAL  AND  ERROR. 


867-900 


h.  Hearing  Causes  Together. — Two  suits  separately  commenced,  but  tried  to- 
gether for  convenience,  will  not  be  treated  as  consolidated,  for  the  purpose  of 
increasing  the  amount  in  dispute  so  as  to  sustain  an  appeal  to  the  federal  su- 
preme court  from  the  supreme  court  of  the  Philippine  Islands,  where  the  un- 
derstanding of  court  and  counsel  below  was  that  there  was  in  fact  no  consoli- 
dation.^^^^ 

i.  Qualification  of  General  Rule — (1)  Persons  Having  Common  and  Undir- 
vided  Interests. — The  aggregate  sum  of  the  possible  penalties  sued  for  in 
several  actions  brought  by  the  United  States  against  a  carrier  under  Act  June  29, 
1906,  c.  3594,  34  Stat.  607  (_U.  S.  Comp.  St.  Supp.  1909,  p.  1178),  requiring  the 
unloading  of  live  stock  during  transit,  and  consolidated,  is  the  amount  in  dis- 
pute for  the  purpose  of  susta'ining  the  appellate  jurisdiction  of  the  federal  su- 
preme court. 22* 

14.  Set-Oi^f  and  Counterclaim. — See  note  38. 

16.  Showing  and  Dstermination  of  Amount — d.  Affidavits. — Affidavits 
in  Rebuttal — Necessity.— Where  the  affidavits  filed  show  a  value  large  enough 
to  give  the  federal  supreme  court  jurisdiction,  a  sufficient  showing  has  been 
made  in  the  absence  of  affidavits  in  rebuttal. ■^^'^ 

o.  Determination  of  Amount  in  Particular  Proceedings — (3)  In  Probate  Pro- 
ceedings.— The  necessary  jurisdictional  amount  to  sustain  a  writ  of  error  to  the 
court  of  appeals  of  the  District  of  Columbia  to  review  decree  denying  probate 
of  a  will  is  not  involved  where  the  total  amount  of  legacies  to  those  interested 
is  less  than  $5,000."'^ 

(5)  In  Suits  to  Foreclose  Mortgages. — The  value  of  a  mortgaged  vessel  and 
the  profits  from  its  use,  demanded  in  a  dismissed  counterclaim  in  a  suit  to  fore- 
close the  mortgage,  cannot  be  added  to  the  amount  of  the  mortgage  debt  in  de- 
termining the  value  of  the  matter  in  controversy,  for  the  purpose  of  an  appeal 
to  the  federal  supreme  court  from  the  supreme  court  of  the  Philippine  Islands.'^o^ 


against  each  for  recovery  of  possession  of 
that  part  of  the  land  of  which  he  was  al- 
leged and  found  to  be  in  possession,  and 
the  whole  amount  of  damages  added  to 
value  of  land  in  controversy  with  any  of 
defendants  does  not  equal  the  jurisdic- 
tional amount.  Tupino  v.  La  Compania 
General  De  Tabacos,  214  U.  S.  268,  53  L. 
Ed.  992,  29  S.  Ct.  610,  following  Tupper  v. 
Wise,  110  U.  S.  398,  28  L.  Ed.  189,  4  S. 
Ct.  26. 

867-31a.  Hearing  causes  together. — Mar- 
tinez z'.  International  Banking  Corp.,  220 
U.  S.  214,  55  L.  Ed.  438,  31   S.  Ct.  408. 

871-33a.  Aggregate  sum  of  possible  pen- 
alties.— Baltimore,  etc.,  R.  Co.  v.  United 
States,  220  U.  S.  94,  55  L.  Ed.  384,  31  S.  Ct. 
368,  modifying  judgment  United  States  v. 
Baltimore  &  O.  S.  W.  R.  Co.  (1908)  159  F. 
33,  86  C.  C.  A.  223. 

872-38.  Set-off  and  counterclaim. — The 
amount  in  dispute  in  a  suit  to  recover 
damages  for  refusal  of  vendor  to  carry  out 
a  contract  for  sale  of  real  property  is  suf- 
ficient to  give  the  federal  supreme  court 
jurisdiction  of  a  writ  of  error  to  the  court 
of  appeals  of  the  District  of  Columbia  to 
review  a  judgment  in  favor  of  plaintiff  for 
$1,250,  where  defendant,  in  his  set-ofT, 
claims  an  unpaid  balance  of  $11,750  of  the 
purchase  price,  and  claims  that  the  amount 
of  the  judgment  against  him  is  erroneous, 
and    that  a    reversal    will    permit    him  to 


claim  before  the  jury  on  another  trial  the 
full  amount  of  his  set-ofif,  or,  at  least,  the 
balance  due  for  the  purchase  price.  Judg- 
ment (1907)  Harten  v.  Loffler,  29  App.  D. 
C.  490,  affirmed.  Harten  z:  Loffler,  212  U. 
S.  397,  53  L.  Ed.  568,  29  S.  Ct.  351,  dis.tin- 
guished  in  Martinez  v.  International  Bank- 
ing Corp.,  220  U.  S.  214,  55  L.  Ed.  438,  31 
S.  Ct.  408. 

883-88a.  Affidavits  in  rebuttal — Neces- 
sity.— "The  right  to  prosecute  the  writ  is 
challenged  on  the  ground  that  the  amount 
involved  is  not  sufficient  to  confer  juris- 
diction, and  because  there  are  no  questions 
arising  adequate  alone  to  give  jurisdiction. 
Without  going  into  detail,  we  say,  in  view 
of  the  affidavits  filed  in  this  court  concern- 
ing the  value  of  the  propeity,  after  allow- 
ing for  the  elements  of  speculation  pos- 
sibly entering  into  the  amount  fixed  in 
the  affidavits,  we  think,  in  the  absence  of 
affidavits  in  rebuttal,  a  sufficient  show- 
ing has  been  made  to  give  jurisdiction." 
Roura  v.  Philippine  Is^^nds,  218  U.  S.  386, 
54  L.  Ed.  1080,  31    S.  Ct.  73. 

900-48a.  In  probate  proceedings. — Mor- 
gan z:  Adams.  211  U.  S.  627,  53  L.  Ed. 
.362,  29   S.   Ct.   213. 

900-50a.  In  suits  to  foreclose  mortgages. 
— Martinez  v.  International  Banking  Corp., 
220  U.  S.  214,  55  L.  Ed.  438,  31  S.  Ct.  408, 
citing  Peyton  v.  Robertson,  9  Wheat.  527, 
6  L.  Ed.  151. 


109 


900-923 


APPEAL  AND  ERROR. 


Vol.  I. 


(6)  In  Suit  to  Compel  City  to  Levy  Tax  to  Pay  Its  Debt. — The  amount  of 
all  the  judgments  against  a  municipality  concerning  which  relief  was  sought, 
and  which  were  directly  adjudicated  to  be  barred  by  the  statute  of  limitations, 
and  not  simply  the  judgment  fund  in  the  hands  of  the  treasurer,  is  the  amount 
in  controversy,  for  the  purpose  of  a  writ  of  error  from  the  federal  supreme 
court  to  a  territorial  supreme  court,  to  review  a  judgment  denying  relief  by 
mandamus,  where  the  prayer  was  for  a  continuous  levy  of  taxes  by  the  mu- 
nicipal officers  for  the  amount  permitted  by  law  annually  to  be  applied  in  pay- 
ment of  the  judgments.^*^'' 

IV,  Decisions  Reviewable. 

B.  Nature,  Form  and  Validity  of  Judgment  as  Governing  Right  of 
Review — 1.  In  General. — The  answer  to  the  question  whether  an  order  is  final 
and  appealable  often  turns  upon  the  character  of  the  order.  If  it  is  remedial 
and  interlocutory,  it  is  reviewable  only  on  appeal  from  the  final  decree;  but  if 
it  is  punitive  or  criminal  in  its  nature,  it  is  reviewable  upon  a  writ  of  error 
without  awaiting  the  final  decree. ^^^ 

Judgment  in  Contempt  Proceedings. — Thus,  a  judgment  finding  defend- 
ants in  a  pending  suit  in  equity  guilty  of  contempt  of  its  authority  in  violating 
an  interlocutory  injunction  previously  granted  in  a  suit  for  the  benefit  of  the 
complainant,  and  ordering  the  payment  of  specified  fines,  three-fourths  of  which 
when  paid  would  go  to  the  complainant  "as  compensation  in  part  for  the  ex- 
penses incurred  in  prosecuting  these  contempt  proceedings,"  is  punitive  instead 
of  remedial,  and  reviewable  on  writ  of  error  without  awaiting  a  final  decree  in 
the  suit  in  equity.^**" 

2.   Decision  Must  Be  Exercise  oe  Iudiciae  Power. — See  note  44. 


900-50b.    To  compel  city  to  levy  tax. — 

Beadles  r.  Smyser,  209  U.  S.  393,  52  L. 
Ed.  849,  28  S.  Ct.  522,  reversing  judgment 
in   87   P.   292,   17   Okl.  162. 

922-34a.  Character  of  order. — In  re 
Merchants'  Stock,  etc.,  Co.,  223  U.  S.  639, 
56  L.  Ed.  584,  32  S.  Ct.  339.  See  post, 
"Statement  of  General  Rules  or  Tests," 
IV,  C,  3.  And  see  post,  JUDGMENTS 
AND  DECREES. 

922-34b.  Judgment  in  contempt  proceed- 
ings.— In  re  Merchants'  Stock,  etc.,  Co., 
223  U.  S.  639,  56  L.  Ed.  584,  32  S.  Ct.  339. 

923-44.  Decision  must  be  exercise  of 
judicial  power.— Section  2,  art.  3,  Const., 
which  limits  the  judicial  power  of  the  su- 
preme court  to  "cases"  and  "controversies" 
has  frequently  been  the  subject  of  judicial 
interpretation,  especially  in  those  cases 
involving  the  right  of  appeal  from  the 
court  of  claims,  and  it  has  been  definitely 
determined  from  the  earliest  times  that 
the  power  conferred  on  that  court  is  ex- 
clusively judicial  and  it  can  not  be  re- 
quired or  authorized  to  exercise  any  other, 
and  it  is  apparent  that  from  its  earliest 
history  that  the  supreme  court  has  con- 
sistently declined  to  exercise  any  powers 
other  than  those  which  are  strictly  judicial 
in  their  nature.  Muskrat  v.  United  States, 
219_U.  S.  346,  55  L.  Ed.  246,  31  S.  Ct.  250, 
reviewing  this  question  at  length  and 
quoting  from  state  papers  and  citing 
United  States  v.  Ferreira,  13  How.  40,  14 
L.   Ed.   42;   Gordon  v.   United   States,   117 


U.  S.,  appx.,  697;  Baltimore,  etc.,  R.  Co.  v. 
Interstate  Commerce  Comm.,  215  U.  S. 
216,  54  L.  Ed.  164.  30  S.  Ct.  86.  See  ante, 
"Over   Court   of   Claims,"   III,   D,   5. 

All  attempts  to  provide  for  judicial  de- 
termination, final  in  the  supreme  court,  of 
the  constitutional  validity  of  an  act  of 
congress  in  a  suit  arising  between  par- 
ties concerning  a  property  right  not  neces- 
sarily involved  in  the  decision  in  ques- 
tion have  been  declared  futile.  It  is 
merely  an  attempt  to  obtain  a  judicial 
declaration  of  the  validity  of  an  act  of 
congress  in  proceedings  in  a  case  or  con- 
troversy in  which,  under  the  constitution 
of  the  United  States,  the  judicial  power 
alone  extends.  Muskrat  v.  United  States, 
219  U.  S.  346,  55  L.  Ed.  246,  31  S.  Ct.  250. 

It  therefore  becomes  necessary  to  in- 
quire what  is  meant  by  the  judicial  power 
thus  conferred  by  the  constitution  upon 
the  federal  supreme  court,  and  with  the 
aid  of  appropriate  legislation  upon  the  in- 
ferior courts  of  the  United  States.  "Ju- 
dicial power,"  says  Mr.  Justice  Miller  in 
his  work  on  the  constitution,  "is  the 
power  of  a  court  to  decide  and  pronounce 
a  judgment  and  carry  it  into  effect  be- 
tween persons  and  parties  who  bring  a 
case  before  it  for  decision."  Miller  on  the 
Constitution,  314.  Muskrat  v.  United 
States,  219  U.  S.  346,  356,  55  L.  Ed.  246, 
31  S.  Ct.  250. 

As  to  the  meaning  of  the  words  "cases" 
and    "controversies"    within    the    meaning 


110 


Vol.  I. 


APPEAL  AND  ERROR. 


929-933 


C.  Finality  of  Decision  as  Governing  Right  of  Review — 2.  Necessity 
FOR  Finality — a.  Iti  General. — See  note  76. 

b.  Under  Circuit  Court  of  Appeals  Act. — In  the  federal  courts  an  appeal,  as 
a  general  rule,  lies  only  from  a  final  decree.  But  §  7  of  the  act  of  March  3^ 
1891,  26  Stat,  at  L.  826,  chap.  517,  U.  S.  Comp.  Stat.  1901,  p.  488,  as  amended 
April  14,  1906,  34  Stat,  at  L.  116,  chap.  1627,  establishes  an  exception  by  pro- 
viding for  an  appeal  to  the  circuit  court  of  appeals  from  an  interlocutory  decree 
granting  or  continuing  an  injunction  or  appointing  a  receiver. ^^^ 

3.  Statement  of  General  Rules  or  Tests — a.  In  General. — See  notes  90,  95. 


of  §  1,  art.  2,  Fed.  Const.,  limiting  the  ju- 
risdiction of  the  federal  supreme  court, 
see  post,   CASE;   CONTROVERSY. 

History  of  previous  attempts  to  get  ex- 
trajudicial opinions  from  supreme  court. 
— In  1793.  by  direction  of  the  president, 
secretarj^  of  state,  Jefferson,  addressed  to 
the  justices  of  the  supreme  court  a  com- 
munication soliciting  their  views  upon  the 
question  whether  their  advice  to  the  ex- 
ecutive would  be  available  in  the  solution 
of  important  questions  of  the  construc- 
tion of  treaties,  laws  of  nations  and  laws 
of  the  land,  which  the  secretary  said  were 
often  presented  under  circumstances 
which  "do  not  give  a  cognizance  of  them 
to  the  tribunals  of  the  country."  The 
answer  to  the  question  was  postponed  un- 
til the  subsequent  sitting  of  the  supreme 
court,  when  Chief  Justice  Jay  and  his  as- 
sociates answered  to  President  Washing- 
ton that  in  consideration  of  the  lines  of 
separation  drawn  b}^  the  constitution  be- 
tween the  three  departments  of  govern- 
ment, and  being  judges  of  a  court  of  last 
resort,  afforded  strong  arguments  against 
the  propriety  of  extrajudicially  deciding 
the  questions  alluded  to,  and  expressing 
the  view  that  the  power  given  by  the  con- 
stitution to  the  president  of  calling  on 
heads  of  departments  for  opinions  "seems 
to  have  been  purposely,  as  well  as  ex- 
pressl3^  united  to  the  executive  depart- 
ments." Correspondence  and  public  pa- 
pers of  John  Jav.  vol.  3,  p.  486.  Muskrat 
z:  United  States',  219  U.  S.  346,  354.  55  L. 
Ed.  246,  31  S.  Ct.  250. 

"If  such  actions  as  are  here  attempted, 
to  determine  the  validity  of  legislation, 
are  sustained,  the  result  will  be  that  this 
court,  instead  of  keeping  withhi  the  limits 
of  judicial  power  and  deciding  cases  or 
controversies  arising  between  opposing 
parties,  as  the  constitution  intended  it 
should,  will  be  required  to  give  opinions 
in  the  nature  of  advice  concerning  legis- 
lative action,  a  function  never  conferred 
upon  it  by  the  constitution,  and  against  the 
exercise  of  which  this  court  has  steadily 
set  its  face  from  the  beginning."  Musk- 
rat  r.  United  States,  219  U.  S.  346.  362, 
55  L.   Ed.   246,  31    S.   Ct.  250. 

929-76.  Necessity  for  finality  in  gen- 
eral.— Ordinarily,  in  the  federal  courts,  in 
the  absence  of  express  statutory  authority, 
no  appeal  can  be  taken  or  writ  of  error 


brought  except  from  a  final  decree  or  to 
a  final  judgment.  Baltimore,  etc.,  R.  Co. 
z\  Interstate  Commerce  Comm.,  215  U.  S. 
216,   224,  54  L.   Ed.   164,  30  S.   Ct.   86. 

Where  it  does  not  appear  from  the 
record  that  the  judgment  sought  to  be 
reviewed  was  one  which  finally  determined 
the  cause,  this  court  is  without  jurisdic- 
tion. ^Iiner!s  Bank  v.  Grant,  5  How.  213, 
12  L.  Ed.  121;  McComb  z:  Commissioners, 
91  U.  S.  1,  23  L.  Ed.  185;  Great  Western 
Tel.  Co.  V.  Burnham,  162  U.  S.  339,  40  L. 
Ed.  991.  16  S.  Ct.  850;  Haseltine  v.  Cen- 
tral Bank.  No.  1,  183  U.  S.  130.  46  L.  Ed. 
117,  22  S.  Ct.  49;  Missouri,  etc.,  R.  Co.  v. 
Olathe.  222  U.  S.  185,  186,  56  L.  Ed.  155, 
32  S.  Ct.  46. 

"The  foundation  upon  which  rests  the 
doctrine  which,  as  a  general  rule,  limits 
the  appellate  jurisdiction  of  this  court  to 
final  judgments  is  that  cases  should  not 
be  brought  here  by  piecemeal  through  the 
medium  of  successive  appeals."  Martinez 
V.  International  Banking  Corp.,  220  U.  S. 
214,   223,  55  L.   Ed.  438,  31    S.   Ct.  408. 

931-81a.  Under  Circuit  Court  of  Ap- 
peals Act. — United  States  Fidelity,  etc., 
Co.  v.  Bray,  225  U.  S.  205,  56  L.  Ed.  1055, 
32   S.   Ct.   6'20. 

933-90.  Judgment  of  respondeat  ouster 
with  leave  to  plead  over. — A  judgment  of 
a  federal  circuit  court  entered  upon  a  ver- 
dict directed  in  favor  of  the  government 
on  the  issues  raised  by  a  special  plea  in 
bar,  by  which  the  accused  claimed  im- 
munity from  prosecution  under  Act  Feb. 
25.  1903,  c.  755,  32  Stat.  904  (U.  S.  Comp. 
St.  Supp.  1909,  p.  1142).  as  amended  by 
Act  June  30,  1906,  c.  3920,  34  Stat.  798  (U. 
S.  Comp.  St.  Supp.  1909,  p.  1168).  because 
of  his  testimony  before  the  grand  jury,  is 
not  a  final  judgment,  reviewable  under 
Act  March  3,  1891,  c.  517,  §  5,  26  Stat. 
827  (U.  S.  Comp.  St.  1901,  p.  549),  by  a 
direct  writ  of  error  from  the  federal  su- 
preme court,  where  leave  was  given  to 
plead  over,  and  a  plea  of  not  guilty  was 
entered,  uoon  which  no  trial  has  been 
had.  Heike  z'.  United  States.  217  U.  S. 
423.   54   h.   Ed.   821.   30   S.   Ct.   539. 

"It  is  unnecessary  to  enter  upon  a  full 
consideration  of  what  constitutes  a  final 
judgment,  a  subject  of  much  discussion. 
The  definition  of  a  final  judgment  or  de- 
cree was  tersely  stated  by  Mr.  Chief  Jus- 


111 


935-964 


APPEAL  AND  ERROR. 


Vol.  I. 


4.  Particular  Judgments,  Orders  and  Decrees  Considered — k.  Decisions 
ivith  Respect  to  Reference — (1)   Decree  Ordering  a  Reference. — See  note  70. 

n.  Decisions  Affecting  Pleadings — (1)  Judgments  on  Demurrers. — See  note  78. 

p.  Vacating  and  Setting  Aside  Judgment. — An  appeal  from  the  United  States 
circuit  court  to  review  an  order  vacating  an  order  directing  that  certain  non- 
resident defendants  be  served  wherever  they  might  be  found,  will  be  dismissed 
for  lack  of  finality.'^* 


tice  Waite  in  St.  Louis,  etc.,  R.  Co.  v. 
Southern  Exp.  Co.,  108  U.  S.  24,  28,  27 
L.  Ed.  638,  2  S.  Ct.  6,  in  these  terms:  'A 
decree  is  final  for  the  purposes  of  an  ap- 
peal to  this  court  when  it  terminates  the 
litigation  between  the  parties  on  the 
merits  of  the  case  and  leaves  nothing  to 
be  done  bat  to  enforce  b^^  execution  what 
has  been  determined.'  If  we  apply  the 
definition  herein  contained  of  a  final  judg- 
ment or  decree  it  appears  certain  that  the 
judgment  of  respondeat  ouster,  leaving 
the  case  with  issue  joined  upon  the  plea 
of  not  guilt}',  does  not  dispose  of  the 
whole  matter  litigated  in  this  proceeding, 
leaving  nothing  to  be  done  except  the 
ministerial  act  of  executing  the  judg- 
ment." Heike  z:  United  States,  217  U.  S. 
423,  429,  54  L.  Ed.  821,  30  S.  Ct.  539. 

935-95.  Failure  to  ascertain  amount  of 
judgment. — A  judgment  of  the  supreme 
court  of  the  Philippine  Islands  which  di- 
rects the  entry  of  judgment  for  the  plain- 
tifif  below,  in  accordance  with  its  decision, 
but  leaves  to  the  lower  court  the  judicial 
determination  of  the  exact  amount  for 
which  the  judgment  shall  be  entered,  is 
not  final  for  the  purpose  of  an  appeal  to 
the  federal  supreme  court.  Martinez  v. 
International  Banking  Corp.,  220  U.  S.  214. 
55  L.  Ed.  438,  31  S.  Ct.  408. 

952-70.  Decree  ordering  reference. — A 
decree  in  proceedings  in  admiralty  for 
limitation  of  liability,  which  gfants  such 
limitation,  determines  the  question  of 
pending  freight  to  be  surrendered,  and 
disallows  all  claims  for  loss  of  life,  but 
refers  all  other  claims  to  a  commissioner 
to  take  testimony  and  report,  can  not  be 
regarded  as  final  for  the  purpose  of  an 
appeal,  especially  where  the  court  below 
and  the  parties  have  treated  such  decree 
as  a  mere  interlocutory  one.  Judgment, 
La  Bourgogne  (1906).  144  F.  781,  75  C.  C 
A.  647,  affirmed.  La  Bourgogne,  210  U.  S. 
95,  52  L.  Ed.  973.  28  S.  Ct.  664.  See,  also, 
post,  REFERENCE. 

957-78.  A  writ  of  error  to  a  state  court 
to  review  a  decree,  reversing  a  decree  of 
the  court  below,  sustaining  a  demurrer  to 
the  answer  in  a  suit  to  enjoin  an  assess- 
ment for  taxing  purposes,  will  be  dis- 
missed for  lack  of  finality  in  the  judg- 
ment. State  Nat.  Bank  v.  Richardson, 
225  U.  S.  696,  56  L-  Ed.  1262,  32  S.  Ct.  838, 
citing  Haseitine  v.  Central  Bank,  No 
1,   183  U.   S.   130,   46  L.   Ed.   117,   22   S.    Ct. 


49;  Schlosser  v.  Hemphill,  198  U.  S.  173, 
175,  49   L.   Ed.  1000,  25  S.  Ct.  654. 

A  writ  of  error  to  a  state  court  to  re- 
view a  judgment  of  its  highest  court,  af- 
firming a  judgment  below  sustaining  a 
demurrer  to  an  application  to  assess  com- 
pensation for  land  appropriated  in  eminent 
domain  proceedings,  will  be  dismissed  for 
want  of  finality  of  the  judgment.  Nichols 
z:  Cleveland,  220  U.  S.  602,  55  L.  Ed.  604, 
31  S.  Ct.  716,  citing  Great  Western  Tel. 
Co.  v.  Burnham,  162  U.  S.  339,  341,  40  L. 
Ed.  991,  16  S.  Ct.  850;  Schlosser  v.  Hemp- 
hill, 198  U.  S.  173,  49  L.  Ed.  lOOO*  25  S. 
Ct.   654. 

A  decree  of  the  highest  state  court,  af- 
firming a  decree  of  the  trial  court  in  that 
state  sustaining  a  demurrer  to  a  bill  by 
which  injunctive  relief  is  sought,  and  dis- 
solving a  preliminary  injunction,  is  not 
such  a  final  judgment  as  is  reviewable 
upon  error  to  a  state  court.  Vicksburg 
Water,  etc.,  Co.  t'.  Yazoo,  etc.,  R.  Co.,  220 
U.  S.  601,  55  L.  Ed.  603,  31  S.  Ct.  715,  fol- 
lowing Great  Western  Tel.  Co.  v.  Burn- 
ham,  162  U.  S.  339,  40  L.  Ed.  991,  16  S.  Ct. 
850;  Schlosser  v.  Hemphill,  198  U.  S.  173, 
49  L.  Ed.  1000,  25  S.  Ct.  654. 

A  judgment  of  the  highest  court  of  a 
state,  afiirming,  without  directing  a  dis- 
missal, the  judgment  of  the  court  below, 
which  had  sustained  a  demurrer  to  the 
petition  in  a  civil  suit  upon  the  ground 
that  it  did  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action,  but  had  not  dis- 
missed the  suit,  lacks  the  finality  requisite 
to  sustain  a  writ  of  error  from  the  federal 
supreme  court.  Missouri,  etc..  R.  Co.  v. 
Olathe,  222  U.  S.  185,  56  L.  Ed.  155,  32  S. 
Ct.  46,  dismissing  appeal  (Kan.  1909),  Ed- 
son  r.  Same,  105  P.  521. 

A  writ  of  error  to  a  state  court  to  re- 
view a  judgment  of  its  highest  court,  af- 
firming a  judgment  of  an  intermediate  ap- 
pellate court,  reversing  a  judgment  of  the 
trial  court,  which  overruled  demurrers  to 
the  petition  in  a  suit  for  the  recovery  of 
money,  will  be  dismissed  for  lack  of 
finality  of  the  judgment.  Meyers  v.  Sam- 
uels, 223  U.  S.  715.  56  L.  Ed.  627,  32  S.  Ct. 
.■)21,  citing  Missouri,  etc.,  R.  Co.  7'.  Olathe, 
222  U.   S.   185,   56   L.    Ed.   155,  32   S.   Ct.   46. 

964-7a.  Vacating  and  setting  aside  judg- 
ments.— Walker  v.  Harriman,  220  U.  S. 
606,  55  L.  Ed.  606,  31  S.  Ct.  722,  citing 
Southern  R.  Co.  v.  Postal  Tel.,  etc..  Co., 
179  U.   S.  641,  45  L.  Ed.  355,  21   S.  Ct.  249. 


112 


Vol.  I. 


APPEAL  AND  ERROR. 


966-987 


s.  Judgments  Reversing  and  Remanding  Causes — (1)  In  General. — See  note  16. 
t.  Orders  Made  in  Progress  of  Cause — (6)  Order  Directing  Witness  to  Tes- 
tify and  Produce  Documents.- — See  note  43. 

D.    Discretionary  Matters — 2.    Amendments. — See  notes  93,  94. 

3.  Bail. — See  note  99. 

8.  Continuances. — See  note  8. 


966-16.  Judgments  reversing  and  re- 
manding causes  in  general. — Although  the 
appellate  court  fixes  the  rights  and  lia- 
bilities of  the  party,  yet  if  it  in  effect  re- 
fers the  question  in  the  case  to  the  subor- 
dinate court  for  further  judicial  action,  its 
judgment  is  not  final  for  the  purpose  of 
an  appeal  or  writ  of  error.  Martinez  v. 
International  Banking  Corp.,  220  U.  S.  214, 
55  L.  Ed.  438,  31  S.  Ct.  408,  citing  Drake 
V.  Kochersperger,  170  U.  S.  303,  42  L.  Ed. 
1046,  18  S.  Ct.  942;  Clark  v.  Kansas  City, 
172  U.   S.  334,  43  L.   Ed.  467,  19   S.  Ct.  207. 

A  decree  which  reversed  some  of  the 
findings  and  conclusions  of  law  of  the 
court  below  in  an  action  for  an  account- 
ing, and  directed  a  new  decree  to  be  entered 
in  accordance  with  the  opinion  of  the 
court,  is  not  final  for  the  purpose  of  an 
appeal  to  the  supreme  court  of  the  United 
States.  Judgment,  Waggaman  v.  Earle 
(1905),  25  App.  D.  C.  582;  Earle  v.  Wagga- 
man, Id.,  reversed.  Earle  :■.  flyers,  207 
U.  S.  244,  52  L.  Ed.  191,  28  S.  Ct.  86. 

974-43.  Order  directing  witness  to  pro- 
duce documents. — An  order  entered  in  an 
action  to  recover  damages  from  a  carrier 
for  violations  of  Interstate  Commerce 
Act  Feb.  4.  1887,  c.  104,  24  Stat.  379  [U. 
S.  Comp.  St.  1901,  p.  3154],  requiring  cer- 
tain specified  officers  and  employees  who 
are  not  parties  to  produce  relevant  books 
and  papers,  is  not,  as  to  those  persons,  a 
final  decree  within  the  meaning  of  the 
provision  of  Act  March  3,  1891.  c.  517, 
§  6,  26  Stat.  828  [U.  S.  Comp.  St.  1901,  p. 
549],  governing  writs  of  error  from  circuit 
courts  of  appeals  to  the  circuit  courts,  and 
hence  will  not  sustain  a  writ  of  error  sued 
out  by  them.  Judgment,  Cassatt  v.  Web- 
ster Coal  &  Coke  Co.  (C.  C.  A.).  150  F. 
48,  81  C.  C.  A.  97;  Same  v.  Pennsylvania 
Coal  &  Coke  Co.,  Id.,  affirmed.  Webster 
Coal,  etc.,  Co.  v.  Cassatt.  207  U.  S.  181, 
52  L.  Ed.  160,  28  S.  Ct.  108;  Pennsylvania 
Coal,  etc.,  Co.  v.  Cassatt.  207  U.  S.  187,  52 
L.  Ed.  163.  28   S.   Ct.  110. 

984-93.  Amendments. — The  principle  is 
elementary  "that  the  action  of  the  court 
below  in  refusing  to  permit  the  proposed 
amendment,  however  germane  that  amend- 
ment may  have  been  to  the  cause  of  ac- 
tion stated  in  the  original  bill  ard  even  al- 
though the  subject  matter  of  the  amend- 
ment was  not  foreclosed  by  our  previous 
decision,  is  not  susceptible  of  being  re- 
viewed, because  the  allowance  of  amend- 
ments to  pleadings  is  discretionary  with  a 
trial  court,  and  the  action  of  the  court  be- 
low in  refusing  to  permit  the  amendment, 

12   U   S   Enc— 8  113 


even  though  erroneous,  may  not  be  re- 
versed for  error  unless  a  gross  abuse  of 
discretion  was  committed."  United  States 
V.  Lehigh  Valley  R.  Co.,  220  U.  S.  257, 
270,   55    L.   Ed.   458,  31   S.   Ct.   387. 

985-94.  But  v/here  there  is  an  absolute 
abuse  of  discretion  by  the  court  below  in 
refusing  to  permit  an  amendment,  such 
action  of  the  court  below  is  reviewable, 
even  though  such  abuse  was  obviously  oc- 
casioned by  a  misconception  of  the  char- 
acter of  the  action  of  the  supreme  court 
and  the  scope  of  its  mandate.  United 
States  V.  Lehigh  Valley  R.  Co.,  220  U.  S. 
257,  55  L.   Ed.  458,  31   S.   Ct.  387. 

Abuse  of  discretion  which  may  be  re- 
viewed on  appeal  is  committed  by  the  trial 
court  when  it  refuses  to  permit  an  amend- 
ment to  the  bill  in  a  suit  by  the  federal 
government  to  enjoin  railway  carriers 
from  interstate  transportation  of  com- 
modities with  which  they  are  associated 
or  in  which  they  are  interested,  where 
such  amendment  is  germane  to  the  origi- 
nal cause  of  action,  and  was  not  fore- 
closed by  the  decision  of  the  federal  su- 
preme court,  which  on  appeal  had  reversed 
a  prior  decree  of  dismissal  founded  upon 
the  alleged  unconstitutionality  of  the 
statute  upon  which  the  suit  was  based,  and 
had  remanded  the  cause  for  further  pro- 
ceedings. United  States  v.  Lehigh  Valley 
R.  Co.,  220  U.  S.  257,  55  L.  Ed.  458,  31  S. 
Ct.  387. 

986-99.  Bail. — A  person  convicted  of  a 
crime  is  not  entitled  to  bail,  pending  an 
appeal,  as  a  matter  of  right,  but  the  ac- 
ceptance or  refusal  of  bail  rests  in  the 
discretion  of  the  court  to  which  the  appeal 
was  taken.  Harlan  v.  McGourin.  218  U. 
S.  442,  54  L.  Ed.  1101,  31  S.  Ct.  44.  See, 
also,  post,  BAIL  AND  RECOGNI- 
ZANCE. 

987-8.  Continuances. — "The  elementary 
rule  is  that  the  granting  of  a  continuance 
of  the  cause  was  peculiarly  within  the 
sound  discretion  of  the  court  below,  a  dis- 
cretion not  subject  to  be  reviewed  on  ap- 
peal except  in  case  of  such  clear  error  as 
to  amount  to  a  plain  abuse  springing  from 
an  arbitrary  exercise  of  power."  Valdes 
V.  Central  Altagracia,  225  U.  S.  58,  56  L. 
Ed.  980.  32  S.  Ct.  664. 

Continuances  are  within  the  discretion 
of  the  court,  and  unless  great  abuse  is 
shown,  the  action  of  the  court  below  will 
not  be  disturbed.  Pickett  v.  United  States. 
216  U.  S.  456,  461,  54  L.  Ed.  566.  30  S.  Ct. 
265.     See,  also,  post,   CONTINUANCES. 

Refusing  to  grant  a  continuance    of     a 


988-1001 


APPEAL  AND  ERROR. 


Vol.  I. 


9.  Costs. — See  note  12. 

13.  EviDENCi:— d.  Witnesses.— K,novr\e&ge  as  Expert.— See  note  38. 

16.  Injunctions. — The  refusal  of  the  court  of  original  jurisdiction  to  allow 
damages  for  the  period  during  which  the  temporary  restraining  order,  granted 
pursuant  to  U.  S.  Rev.  Stat.,  §  718,  U.  S.  Comp.  Stat.  1901,  p.  580,  was  in  force, 
upon  the  undertaking  given  as  a  condition  of  granting  such  order,  can  not  be 
sustained  as  an  appropriate  exercise  of  discretion,  where,  by  such  order,  the 
postmaster  general  was  restrained  from  refusing  to  transmit  certain  publica- 
tions at  second-class  rates,  as  theretofore,  and  the  result  of  the  litigation  was 
to  establish  not  only  the  right  of  the  government  to  receive  additional  postage 
pending  the  controversy,  but  also  the  fact  that  the  publishers  had  received  a 
very  considerable  service  from  the  government  in  carrying  the  publications 
through  the  mails  at  a  rate  less  than  that  which  it  was  entitled  to  charge.-*"^^ 

18.  Interve^ntion. — See  note  49. 

25.  Nkw  Triai^s. — See  note  75. 

27.  Pleadings — a.  Supplemental  Pleadings. — The  granting  of  leave  to  file 
an  amended  and  supplemental  bill  is  a  matter  within  the  discretion  of  the 
court,  and  its  action  will  not  be  reviewed  in  an  appellate  court  unless  there  has 
been  a  gross  abuse  of  this  discretion. ^■^^ 


consolidated  cause  arising  out  of  the  fi- 
nancial difficulties  of  a  corporation  whose 
property  is  in  the  hands  of  a  receiver, 
based  upon  an  affidavit  as  to  the  absence 
of  material  witnesses,  is  not  an  abuse  of 
discretion,  where  the  matter  had  been 
pending  for  more  than  a  year,  and  ail  the 
parties  in  interest  had  acquiesced  in  the 
ateps  taken  by  the  court  for  the  purpose 
of  bringing  the  cause  to  a  speedy  con- 
clusion and  thus  avoiding  further  loss,  and 
had  complied  with  the  terms  of  the  order 
setting  the  cause  for  trial,  and  taken  ad- 
vantage of  the  rights  which  it  conferred. 
Valdes  v.  Central  Altagracia,  225  U.  S. 
58,  56  L.  Ed.  980,  32  S.  Ct.  664. 

988-12.  Costs  in  general. — It  is  well 
settled  in  the  federal  supreme  court  that 
an  appeal  prosecuted  only  for  costs  must 
be  dismissed.  Wingert  v.  First  Nat.  Bank, 
223  U.  S.  670,  56  L.  Ed.  605,  32  S.  Ct.  391, 
citing  Paper  Bag  Cases,  105  U.  S.  766,  26 
L.  Ed.  959.    See,  also,  post,  COSTS. 

An  appeal  from  a  decree  refusing  to  en- 
join the  construction  of  a  new  building  by 
a  national  bank,  which  is  prosecuted  as 
one  for  costs  only,  because  of  the  com- 
pletion of  the  new  building  pending  the 
litigation,  will  be  dismissed.  Wingert  v. 
First  Nat.  Bank,  223  U.  S.  670,  56  L.  Ed. 
605,  32  S.  Ct.  391. 

992-38.  Witnesses — Expert  witness. — 
The  discretion  of  the  trial  judge  in  de- 
termining whether  a  given  nonexpert  wit- 
ness has  the  qualifications  which  will  per- 
mit him,  to  the  profit  of  the  jury,  to  state 
his  opinion  upon  an  issue  of  mental  ca- 
pacity, should  not  be  reviewed  on  appeal 
unless  the  decision  is  clearly  erroneous. 
Decree  (1907),  29  App.  D.  C.  460,  affirmed. 
Turner  v.  American,  etc.,  Trust  Co.,  213 
U.   S.  257,  53  L.  Ed.  788,  29   S.   Ct.  420. 


993-47a.  Injunctions. — Houghton  v. 
Meyer,  208  U.  S.  149,  52  L.  Ed.  4S2,  28  S. 
Ct.  234.     See,  also,  post.  INJUNCTIONS. 

993-49.  Disallowance  of  motion  to  in- 
tervene not  reviewable. — Ex  parte  Leaf 
Tobacco  Board,  222  U.  S.  578,  56  L.  Ed. 
323,  32  S.  Ct.  833. 

998-75.  Allowance  or  refusal  of  new 
trial. — It  has  been  frequently  decided  that 
the  allowance  or  refusal  of  a  new  trial 
rests  in  the  sound  discretion  of  the  trial 
court  and  its  action  in  that  respect  can 
not  be  made  the  basis  of  review  by  writ 
of  error  to  the  federal  supreme  court. 
Holmgren  v.  United  States,  217  U.  S.  509, 
521,  54  L.  Ed.  861,  30  S.  Ct.  588.  See, 
also,  post,  NEW  TRIALS. 

The  denial  of  a  motion  for  a  new  trial 
can  not  be  treated  as  more  than  a  matter 
of  discretion  on  a  ground  for  reversal  ex- 
cept in  very  plain  circumstances  indeed. 
Holt  V.  United  States,  218  U.  S.  245,  54  L. 
Ed.  1021,  31  S.  Ct.  2,  citing  Mattox  v. 
United  States,  146  U.  S.  140,  36  L.  Ed. 
917,  13  S.  Ct.  50;  Holmgren  v.  United 
States,  217  U.  S.  509,  54  L.  Ed.  861,  30  S. 
Ct.  588;  Pickett  v.  United  States.  216  U. 
S.  456,  54  L.  Ed.  566,  30  S.   Ct.  265. 

The  denial  of  a  motion  for  a  new  trial, 
raising  for  the  first  time  the  objection 
that  the  jury  was  permitted  to  take  into 
the  jury  room  the  indictment,  which  con- 
tained an  indorsement  showing  the  con- 
viction of  the  accused  on  a  count  thereof 
at  a  former  trial,  is  not  reviewable  in  the 
federal  supreme  court.  Holmgren  v. 
United  States,  217  U.  S.  509,  54  L.  Ed.  861, 
30  S.  Ct.  588.  affirming  judgment  (1907), 
156  F.  439,  84  C.  C.  A.  301. 

1001-84a.  Leave  to  file  amended  and 
supplemental  bill. — Rio  Grande  Dam.,  etc., 
Co.  V.  United  States,  215  U.  S.  266,  277,  54 


114 


Vol.  I. 


APPEAL  AND  ERROR. 


1001-1012 


e.  JVithdraival  and  Striking  Out  Pleadings. — See  note  95. 

27^.  Powe:r  to  Punish  for  Contempt. — The  only  question  that  can  arise 
on  the  review  of  a  contempt  proceeding  in  the  supreme  court  is  as  to  the  juris- 
diction of  the  lower  court,  since  the  power  to  punish  for  contempt  is  a  discre- 
tionary power,  and,  if  fairly  exercised  in  a  case  within  the  jurisdiction  of  the 
court,  no  review  can  be  had.^^'' 

39.  Acts  of  Officers  of  thf  Various  Dfpartmfnts. — See  note  17. 

E.  Review  of  Questions  of  Fact — 1.  In  General. — See  notes  24,  27. 

3.  Concurrent  Decisions  of  Two  Inferior  Courts — a.  In  General. — See 
note  42. 


L.  Ed.  190,  30  S.  Ct.  97.  See,  generally, 
post,  PLEADING. 

Permitting  the  filing  of  a  supplemental 
bill  after  the  case  has  been  remanded  by 
an  appellate  court  for  the  production  of 
further  evidence  can  not  be  deemed  an 
abuse  of  the  trial  court's  discretion,  where 
the  facts  set  forth  in  such  bill  grew  out  of 
and  were  connected  with  the  same  trans- 
action out  of  which  the  litigation  arose, 
and  were  germane  to  the  object  of  the 
suit,  and  where  all  the  grounds  of  relief, 
even  if  not  existing  when  the  original  bill 
was  filed,  were  alleged  to  exist  when  the 
supplemental  bill  was  tendered,  especially 
in  view  of  the  provisions  of  Comp.  Laws 
N.  M.  1897,  §  2685  (Code  Civ.  Proc. 
subsec.  87),  that  a  party  may  be  allowed, 
on  motion,  to  make  a  supplemental  com- 
plaint, answer,  or  reply  alleging  facts  ma- 
terial to  the  cause,  or  praying  for  any 
other  or  dififerent  relief,  order,  or  judg- 
ment. Decree,  United  States  v.  Rio 
Grande  Dam  &  Irrigation  Co.  (1906).  85 
P.  393,  13  N.  M.  386,  affirmed.  Rio 
Grande  Dam.  etc.,  Co.  v.  United  States. 
215  U.  S.  266.  54  L.  Ed.  190,  30  S.  Ct.  97. 

1001-95.  Withdrawal  and  striking  out 
pleadings. — -An  exception  to  the  refusal  of 
the  trial  court  to  reconsider  its  order, 
made  on  defendant's  motion,  permitting 
the  withdrawal  of  a  plea  in  abatement  and 
the  filing  of  a  plea  in  bar,  and  to  allow  the 
trial  of  the  issue  joined  on  the  plea  in 
abatement,  is  not  available  in  the  federal 
supreme  court.  Judgment  (1904).  23  App. 
D.  C.  551,  reversed.  Chunn  v.  City,  etc.. 
Railway,  207  U.  S.  302,  52  L.  Ed.  219.  28 
S.  Ct.  63.     See,  also,  post.  PLEADING. 

■'002-99a.  Power  to  punish  for  contempt. 
— In  re  Consolidated  Rendering  Co.,  66 
A.  790.  80  Vt.  55.  judgment  affirmed.  Con- 
solidated Rendering  Co.  ?'.  Vermont,  207 
U.  S.  541.  52  L.  Ed.  327,  28  S.  Ct.  178.  See 
post,  CONTEMPT. 

1005-17.  Acts  of  officers  of  the  various 
departments  in  general. — If  it  does  not 
affirmatively  appear  that  the  executive  of- 
ficers of  the  federal  government  have  acted 
in  some  unlawful  or  improper  way  and 
abused  their  discretion,  their  findings  are 
conclusive  and  irreviewable  bj^  the  federal 
supreme  court.  Tang  Tun  7'.  Edsell,  223 
U.  S.  673,  56  L.  Ed.  606,  32  S.  Ct.  359,  cit- 


ing United  States  v.  Ju  Toy,  198  U.  S.  253, 
49  L.  Ed.  1040,  25  S.  Ct.  644;  Chin  Yow 
z\  United  States,  208  U.  S.  8,  52  L.  Ed.  369, 
28  S.  Ct.  201;  Ness  v.  Fisher,  223  U.  S. 
683,  56  L.  Ed.  610,  32  S.   Ct.  356. 

1005-24.  Review  of  questions  of  fact  in 
general. — The  facts  and  the  conclusions  to 
be  drawn  from  them  are  for  the  jury,  and 
can  not  be  reviewed  by  the  federal  su- 
preme court  upon  writ  of  error.  Standard 
Oil  Co.  V.  Brown,  218  U.  S.  78,  54  L.  Ed. 
939,  30  S.  Ct.  669,  affirming  judgment  in 
31  App.   D.   C.  371. 

1008-27.  The  federal  supreme  court 
must  accept  the  conclusions  of  the  court 
below  on  a  question  of  fact,  unless  clearly 
and  manifestly  wrong.  Judgment,  United 
States  Min.  Co.  v.  Lawson  (1904),  134  F. 
769,  67  C.  C.  A.  587,  affirmed.  Lawson  z: 
United  States  Min.  Co.,  207  U.  S.  1,  52 
L.  Ed.  65,  28  S.  Ct.  15. 

1012-42.  Concurrent  decisions  of  two  in- 
ferior courts  in  general. — Continental  Pa- 
per Bag  Co.  V.  Eastern  Paper  Bag  Co., 
210  U.  S.  405,  52  L.  Ed.  1122,  28  S.  Ct. 
748. 

The  verdict  of  the  jury,  approved  by 
the  trial  and  appellate  courts,  settles  the 
disputed  questions  of  fact.  El  Paso,  etc., 
R.  Co.  r.  Vizard,  211  U.  S.  608,  611,  53  L. 
Ed.  348,  29  S.  Ct.  210. 

Suit  in  equity. — Concurrent  findings  of 
facts  of  the  courts  below  in  a  suit  in 
equity  will  not  be  disturbed  by  the  fed- 
eral supreme  court  on  appeal  unless  clearly 
erroneous.  Judgment  (1906),  144  F.  83, 
75  C.  C.  A.  241,  affirmed.  Dun  v.  Lun^ber- 
men's  Credit  Ass'n,  209  U.  S.  20,  53  L. 
Ed.  66.3,  28  S.  Ct.  335;  Page  7'.  Rogers.  211 
U.   S.   575,   53   L.   Ed.  332.  29   S.   Ct.   159. 

Suit  to  set  aside  fraudulent  conveyance. 
— Concurrent  findings  of  fact  In'  the  two 
lower  courts  in  a  suit  to  set  aside  a  con- 
veyance as  in  fraud  of  creditors  will  or- 
dinarily be  accepted  by  the  federal  su- 
preme court  on  appeal.  Merillat  v.  Ilen- 
sey,  221  U.  S.  333.  55  L.  Ed.  758.  31  S.  Ct. 
575.  affirming  decree  (1908).  32  App.  D. 
C.   64. 

Translation  of  will. — Concurrent  find- 
ings of  the  two  lower  courts  on  the  ques- 
tion as  to  what  is  the  correct  English 
translation  of  a  will  written  in  the  Ha- 
waiian  language  will   be   followed   by  the 


115 


1018 


APPEAL  AND  ERROR. 


Vol.  I. 


7.  We;ight  and  SuFficiKNCY  OF  Evidence. — See  note  61. 


supreme  court  on  appeal  from  the  Ha- 
waiian suoreme  court.  Gray  v.  Noholoa, 
214  U.  S."l08,  53   L.   Ed.  931,  29  S.  Ct.  571. 

Patent  infringement  cases. — Concurrent 
findings  of  fact  bj^  the  two  lower  courts 
on  the  question  of  infringement  of  a  pat- 
ent will  ordinarily  not  be  revised  by  the 
federal  supreme  court.  Decrees  (1907), 
154  F.  65,  83  C.  C.  A.  177,  affirmed,  and 
(1908),  159  F.  436,  86  C.  C.  A.  416,  re- 
versed. Rumford  Chemical  Works  v. 
Hygienic  Chemical  Co.,  215  U.  S.  156,  54 
L.   Ed.   137,  30   S.   Ct.   45. 

Concurrent  findings  of  the  courts  below 
that  the  Liddell  patent  No.  558,  969,_  for 
an  improvement  in  paper  bag  machines, 
which  combines  a  rotary  cylinder  with  a 
forming  plate  oscillating  about  its  rear 
edge  upon  the  surface  of  the  cylinder,  is 
a  broad  invention,  and  is  infringed  by  a 
machine  in  which  the  surface  of  the 
cylinder  is  depressed  away  from  the  form- 
ing plate,  while  the  patent  adopts  the  de- 
vice of  causing  the  pivot  or  axis  of  the 
forming  plate  to  yield  away  from  the 
cylinder,  will  not  be  disturbed  by  the  fed- 
eral supreme  court  on  certiorari,  as  clearly 
erroneous.  Continental  Paper  Bag  Co.  ^'. 
Eastern  Paper  Bag  Co.,  210  U.  S.  405,  52 
L.    Ed. _  1122,,   28   S.   Ct.   748. 

Findings  of  fact  made  by  an  auditor  to 
whom  a  case  is  referred  to  state  the  ac- 
count, and  confirmed  by  the  courts  below, 
will  be  affirmed  by  the  supreme  court  of 
the  United  States,  unless  clearly  erro- 
neous. Judgment,  Waggaman  v.  Earle 
(1905),  25  App.  D.  C.  582;  Earle  v.  Wagga- 
man, reversed.  Earle  v.  Myers,  207  U.  S. 
244,   52  L.   Ed.  191.  28  S.   Ct.  86. 

Suit  to  restrain  sale  of  copyrighted  pub- 
lications.— Concurrent  findings  of  the 
courts  below  in  a  suit  to  restrain  the  sale 
of  copyrighted  publications  at  less  than 
the  fixed  price,  that  there  was  no  satisfac- 
tory proof  that  the  defendant  had  induced 
and  persuaded  sundry  jobbers  and  dealers, 
Avho  had  obtained  copyrighted  books  from 
the  complainants,  to  deliver  the  same  to 
tlie  (defendant  for  sale  at  retail  at  less  than 
the  prices  fixed  by  the  complainants,  and 
in  violation  of  the  agreement  upon  which 
the  books  were  obtained,  will  not  be  dis- 
turbed by  the  federal  supreme  court,  on 
aopeal,  if  not  clearly  erroneous.  Judg- 
ment (1906).  147  F.  28,  78  C.  C.  A.  122,  af- 
firmed. Scribner  v.  Straus,  210  U.  S.  352, 
52  L.   Ed.   1094,  28  S.   Ct.  735. 

Negligence. — A  verdict  finding  that  a 
construction  company  was  guilty  of  neg- 
ligence toward  a  locomotive  fireman  in 
its  employ  who  was  injured  by  the  giv- 
insr  way  of  a  pile  bridge  during  high  water 
will  not  be  disturbed  by  the  federal  su- 
preme court,  where  it  has  been  approved 
by  both  the  trial  and  territorial  supreme 
courts,   and   there   was   evidence    that   the 


bridge  had  once  before  given  way  in  time 
of  high  water,  and  was  rebuilt  without 
change  of  plan.  Judgment  (1906),  87  P. 
320,  17  Okl.  355,  affirmed.  McCabe,  etc., 
Constr.  Co.  v.  Wilson,  209  U.  S.  275,  52 
L.   Ed.   788,  28   S.   Ct.  558. 

Collision  cases. — Concurrent  findings  of 
both  the  courts  below  as  to  the  density  of 
a  fog  and  the  rate  of  the  speed  of  a  steam- 
ship at  the  time  of  collision  will  not  be 
disturbed  by  the  federal  supreme  court 
on  appeal,  unless  such  findings  are  so  un- 
warranted by  the  evidence  as  clearly  to 
be  erroneous.  La  Bourgogne,  210  U.  S. 
95.  52  L.  Ed.  973,  28  S.  Ct.  664. 

Partnership. — Concurrent  findings  of  the 
two  courts  below  that  two  brothers  were 
partners,  and  that  the  stock  in  trade  be- 
longed to  the  firm,  are  not  so  clearly  er- 
roneous as  to  call  for  reversal,  where 
there  was  evidence  that  one  brother,  with 
the  original  intention  of  forming  a  cor- 
poration, furnished  the  capital,  and  the 
other  his  personal  services  in  disposing  of 
it,  and  that  the  latter  was  interested  in  the 
profits,  if  any,  and  at  the  same  time  was 
not  a  debtor  of  the  former,  and  there  was 
some  evidence  that  he  also  contributed  to 
the  assets.  Manson  v.  Williams,  213  U. 
S.   453,   53    L.    Ed.   869,   29   S.   Ct.   519. 

An  allowance  for  counsel  fees  out  of 
funds  in  court  will  not  be  disturbed  as  ex- 
cessive, where  the  two  lower  courts  have 
concurred  in  the  amount  allowed  as  rea- 
sonable. Decree  (1909),  172  F.  1,  96  C. 
C.  A.  587,  affirmed.  United  States  v.  Car- 
ter, 217  U.  S.  286,  54  L.  Ed.  769,  30  S.  Ct. 
515. 

1018-61.  Weight  and  sufficiency  of  evi- 
dence.— Where  there  is  evidence  proper 
for  the  consideration  of  the  jury,  the  ob- 
jection that  the  verdict  is  against  the 
weight  of  evidence  or  that  the  damages  al- 
lowed are  excessive  can  not  be  considered 
by  the  federal  supreme  court.  Lincoln  v. 
Power,  151  U.  S.  436,  438,  38  L.  Ed.  224, 
14  S.  Ct.  387;  Humes  v.  United  States. 
170  U.  S.  210,  42  L.  Ed.  1011,  18  S.  Ct.  602; 
Herencia  z\  Guzman,  219  U.  S.  44,  55  L. 
Ed.  81,  31  S.  Ct.  135,  citing  Express  Co. 
7'.  Ware,  20  Wall.  543,  22  L.  Ed.  422;  New 
York,  etc.,  R.  Co.  v.  Winter,  143  U.  S.  60, 
75.   36  L.   Ed.  71. 

The  objection  that  the  verdict  in  a  neg- 
ligence action  was  against  the  weight  of 
evidence  can  not  be  considered  by  the  fed- 
eral supreme  court  on  a  writ  of  error, 
where  there  is  evidence  proper  for  the 
consideration  of  the  jury.  Herencia  v. 
Guzman,  219  U.  S.  44,  55  L-  Ed.  81,  31  S. 
Ct.    135. 

Appeal  from  District  of  Columbia. — 
Upon  a  writ  of  error  to  the  court  of  ap- 
peals of  the  District  of  Columbia  it  is  not 
within  the  province  of  the  federal  supreme 
court  to  weigh  questions  of  evidence.    Co- 


116 


Vol.  I. 


APPEAL  AND  ERROR. 


1020-1032 


8.  ExcESSivKNEss  OP  Damages. — See  note  69. 

10.  Decisions  oe  Land  Department. — See  note  80. 

12.  How  Findings  oe  Fact  by  the  Court  May  Be  Reviewed — b.  Review  of 
Findings  of  Court— (2)  Statutory  Rule— hh.  To  What  Courts  Applicable.— See 
note  8. 

ff.  Form  and  Sufficiency  of  Findings — bbb.  Facts  Must  Be  Found  by  Circuit 
Court. — See  note  18. 


lumbia    Heights    Realty    Co.    v.    Rudolph, 
217  U.  S.  547,  54  L.  Ed.  877,  30  S.  Ct.  581. 

1020-69.  Excessiveness  of  damages  in 
general. — The  objection  that  the  damages 
allowed  in  a  negligence  action  were  ex- 
cessive can  not  be  considered  by  the  fed- 
eral supreme  court  on  a  writ  of  error 
where  there  is  evidence  proper  for  the  con- 
sideration of  the  jury.  Herencia  v.  Guz- 
man. 219  U.  S.  44,  55  L.  Ed.  81,  31  S.  Ct. 
135. 

1022-80.  Decisions  of  land  department. 
— As  far  as  a  decision  of  the  land  depart- 
ment involves  a  question  of  fact  it  is  con- 
clusive upon  the  courts.  And  this  rule  is 
applied  in  cases  where  there  is  a  mixed 
question  of  law  and  fact,  unless  the  court 
is  able  to  separate  the  question  as  to  see 
clearly  what  and  where  the  mistake  of  law- 
is.  Whitcomb  v.  White,  214  U.  S.  15,  53 
L.  Ed.  889,  29  S.  Ct.  599.  See,  also,  post, 
PUBLIC  LANDS. 

A  finding  of  the  land  department  in 
favor  of  a  homestead  entry  in  a  contest 
with  persons  claiming  to  have  been  oc- 
cupants of  the  premises  as  a  town  site, 
which  rests,  not  solely  upon  the  fact  that 
the  application  for  the  homestead  entry 
was  filed  a  few  hours  before  that  of  the 
trustee  for  the  occupants  of  the  town  site, 
but  rather  chiefly  on  the  priority  of  the 
homesteader's  equitable  rights,  must  be 
regarded  as  conclusive  by  the  federal  su- 
preme court,  especially  where  such  finding 
is  reinforced  by  the  judgments  of  the 
state  courts,  unless  there  is  the  clearest 
and  most  convincing  evidence  of  mistake 
or  injustice.  Whitcomb  v.  White,  214  U. 
S.  15,  53  L.  Ed.  889,  29  S.  Ct.  599. 

1031-8.  Reviev^^  of  findings  of  district 
court. — Where  the  trial  is  in  the  district 
court  without  a  jury  in  the  nature  of  a 
submission  to  a  arbitrator,  the  court's  de- 
termination of  the  issues  of  fact  and  of 
the  questions  of  law  supposed  to  arise 
upon  its  special  finding  is  not  a  judicial 
determination,  and  therefore  the  circuit 
court  of  appeals  is  without  power  to  con- 
sider the  sufficiency  of  the  facts  found  to 
support  the  judgment.  The  power  of  that 
court  is  limited  to  a  consideration  of  such 
questions  of  law  as  may  have  been  pre- 
sented by  the  record  proper,  independ- 
ently of  the  special  finding;  such  as 
whether  the  pleadings  were  sufficient  to 
support  the  judgment.  Campbell  v. 
United  States,  224 "^U.  S.  09.  BC,  L.  Ed.  684, 
32  S.  Ct.  398,  citing  Campbell  v.  Boyreau, 


21    How.    223,    16   L.    Ed.   96;     Rogers     v. 
United  States,  141  U.  S.  548,  35  L.  Ed.  853. 

The  circuit  court  of  appeals  has  no 
power  to  consider  the  sufficiency  of  the 
facts  found  by  the  district  court  to  sup- 
port the  judgment  in  an  action  at  law, 
tried  without  a  jury,  contrary  to  U.  S. 
Rev.  Stat.,  §  566,  U.  S.  Comp.  Stat.  1901, 
p.  461,  since  such  a  trial  was  in  the  nature 
of  an  unauthorized  submission  to  an  ar- 
bitrator, and  the  court's  determination  was 
not  a  judicial  one;  the  provisions  of 
§§  649,  700,  which  provide  for  such  a  trial 
and  review,  being  in  terms  limited  to  cases 
in  the  circuit  courts.  Campbell  v.  United 
States,  224  U.  S.  99,  56  L.  Ed.  684,  32  S. 
Ct.  398. 

1032-18.  Facts  must  be  found  by  cir- 
cuit court. — "It  is  insisted  that  the  find- 
ings of  the  circuit  court  should  have  bound 
and  concluded  the  court  of  appeals  upon 
questions  of  fact.  The  difficulty  with 
this  contention  is  that  there  is  nothing  to 
show  what  the  circuit  court  found  to  be 
the  facts.  Whatever  might  have  been  sug- 
gested by  the  course  of  the  argument  at 
the  hearing,  the  comments  of  the  court 
upon  such  argument,  or  in  announcing  its 
decision,  there  is  nothing  in  the  record  to 
indicate  whether  its  decision  was  based 
upon  a  question  of  fact  or  a  matter  of 
law.  The  record  only  contains  its  decree, 
dismissing  the  bill.  All  else  is  a  matter  of 
surmise,  except  as  may  be  inferred  from 
the  allegations  of  the  pleadings  and  the 
scope  of  the  testimony.  While  it  is  ap- 
parent that  the  circuit  court  must  have 
based  its  decision  upon  one  of  two  or 
three  grounds,  yet  upon  which  it  is  not 
certain.  The  circuit  court  of  appeals  made 
no  separate  finding  of  facts,  but  it  filed 
an  opinion  which  indicates  the  scope  of 
its  decision,  and  it  is  the  decree  of  that 
court  which  is  before  us  for  consideration. 
The  attitude  of  the  case  is  very  like  that 
of  one  in  which  a  trial  court  refers  all 
things  to  a  master  who  takes  the  testi- 
mony and  reports  it,  with  a  general  find- 
ing for  the  plaintiff  or  defendant,  upon 
which  report  the  trial  court  states  its 
views  of  the  facts  and  the  law  and  en- 
ters its  decree.  An  appellate  court  re- 
viewing such  decree  will  give  its  consid- 
eration to  the  conclusions  stated  by  the 
trial  court,  irrespective  of  the  report  of 
the  master,  unless  the  issue  be  so  nar- 
row that  sustaining  the  decree  of  the 
court  necessarily  involves  an  overruling  of 


117 


1048-48 


APPEAL  AND  ERROR. 


Vol.  II. 


kk.  Review  of  Findings  upon  Questions  of  Fact.— The  federal  supreme  court 
will  not  review  the  conclusions  of  the  court  below  upon  the  merits  of  the  con- 
troversy, when  such  conclusions  are  embraced  in  the  findings  of  fact."^^"" 

e.  Review  of  Findings  by  Referees,  Arbitrators,  etc. — Findings  of  facts  made 
by  an  auditor  to  whom  a  cause  is  referred  to  ascertain  the  damages  resulting 
from  the  wrongful  suing  out  of  a  temporary  restraining  order  will  not  be  set 
aside  on  appeal  unless  it  is  shown  that  there  has  been  an  error  in  law  or  a  con- 
clusion of  fact  unwarranted  by  the  evidence.^^*  The  general  rule  respecting 
the  conclusiveness  of  a  master's  findings  of  fact  when  confirmed  by  the  court 
will  not  be  applied  by  the  federal  supreme  court  on  an  appeal  from  a  decree 
enjoining  the  enforcement  of  a  municipal  ordinance  fixing  maximum  water 
rates,  on  the  ground  that  the  ordinance  is  invalid  under  Const.  U.  S.  Amend. 
14,  as  confiscatory.*^" 

V.   Certificate   of  Division  of  Opinion, 

A.  Under  the  Acts  of  1802  and  1872—11.  Affirmance:  or  Reversal — 
b.  Division  of  Opinion. — See  note  68. 

B.  Under  Circuit  Court  of  Appeals  Act — 1.  In  General. — By  the  Judiciary 
Act  of  March  3,  1891,  a  review  by  certificate  is  limited  to  the  certificate  of  its 
equivalent  by  the  circuit  courts,  made  after  final  judgment,  of  the  question, 
when  raised,  of  their  jurisdiction  as  courts  of  the  United  States,  and  to  the 
certificate  by  the  circuit  courts  of  appeal  of  questions  of  law  in  relation  to 
which  the  advice  of  the  federal  supreme  court  is  sought  as  therein  provided,  which 
certificates  are  governed  by  the  same  rules  as  were  formerly  applied  to  certifi- 
cates of  division.'^  1^ 

5.  Questions  to  Be  Brought  Up  and  Considered — e.  Discretionary  Mat- 
ters.— See  note  83. 


the  master  on  a  matter  of  fact."  Lawson 
V.  United  States  Min.  Co.,  207  U.  S.  1,  11, 
52    L.    Ed.   65,   28   S.   Ct.   15. 

1048-78a.  Review  of  findings  upon 
questions  of  fact. — Will  t'.  Tornabells,  217 
U.  S.  47,  54  L.   Ed.  660,  30  S.   Ct.  424. 

The  findings  of  fact  in  a  creditors'  suit, 
which  are  not  reviewable  in  the  federal  su- 
preme court,  embrace  a  statement  accom- 
panying the  findings,  to  the  effect  that 
certain  conversations  between  an  attorney 
and  client  were  excluded  because  the  plan 
outlined  by  the  latter  did  not  tend  to  es- 
tablish a  fraud  on  creditors  so  as  to  ex- 
clude the  claim  of  privilege,  since  such 
statement  really  shows  that,  instead  of  re- 
jecting the  testimony,  the  court  weighed 
and  considered  it,  and  its  finding  that  the 
conversation  did  not  tend  to  show  the 
fraud  which  it  was  asserted  it  did  show, 
and  which  was  the  same  fraud  charged  in 
the  bill,  was  but  an  expression  of  the  con- 
clusion of  the  court  upon  the  facts  in- 
volved in  the  merits  of  the  controversy. 
Will  V.  Tornabells,  217  U.  S.  47,  54  L.  Ed. 
660,   30   S.   Ct.   424. 

1062-48a.  Findings  of  facts  made  by  an 
auditor. — Decree  (1906),  28  App.  D.  C. 
271,  affirmed.  Hutchins  v.  Munn,  209  U. 
S.   246,    52    L.    Ed.   776,   28    S.    Ct.    504. 

1062-48b.  Exception  to  rule. — Knoxville 
V.  Knoxville  Water  Co..  212  U.  S.  1,  53 
L.    Ed.   371.   29    S.    Ct.   148. 


45-68.  Division  of  opinion. — Where  the 
supreme  court  is  equally  divided  on  a  cer- 
tificate of  division  in  opinion  of  the  judges 
of  the  circuit  court,  the  case  will  be  re- 
manded to  the  circuit  court  without  an- 
swer. Richey  v.  Williams  (U.  S.),  20  L. 
Ed.  238. 

46-71a.  Under  Circuit  Court  of  Appeals 
Act. — Baltimore,  etc.,  R.  Co.  v.  Interstate 
Commerce  Comm.,  215  U.  S.  216,  220,  54 
L.   Ed.  164,  30  S.  Ct.  86. 

48-83.  Discretionary  matters. — Defend- 
ants in  an  action  for  contributory  infringe- 
ment of  a  patented  rotary  mimeograph  by 
a  sale  of  ink  to  the  purchaser  in  violation 
of  a  license  restriction  that  it  should  be 
used  only  with  the  ink  made  by  the  pat- 
entee can  not,  where  the  facts  certified  to 
the  United  States  supreme  court  state  that 
they  made  a  direct  sale  of  the  ink  to  the 
user  of  the  patented  article  with  knowl- 
edge that,  under  the  license  from  the 
patentee,  she  could  not  use  such  ink  in 
connection  with  the  machine  without  in- 
fringement of  the  monopoly  of  the  pat- 
ent, and  that  the  sale  was  made  with  the 
expectation  that  it  would  be  used  in  con- 
nection with  such  mimeograph,  claim  that 
the  sale  of  the  ink  was  not  an  infringe- 
ment as  it  might  be  used  in  a  noninfring- 
ing way.  Henry  v.  Dick  Co.,  224  U.  S.  1, 
56    L.    Ed.  645,   32   S.    Ct.   364. 


118 


Vol.  II. 


APPEAL  AND  ERROR. 


48-52 


6.  Form,   Contents  and  Sufficiency  of  Certificate — a.    In   General. 

If  the  certificate  conforms,  in  substance,  with  the  statute,  §  6    act  March  3 
1891,  c.  517,  26  Stat.  826,  it  is  sufficient.s^a 

d.  Certificate  Must  Present  a  Distinct  Point  or  Proposition  of  Law — See 
note  91. 

7.  Review  of  Questions  of  Fact. — See  note  92. 

8.  Right  to  Certify  the  Whoee  Case  to  this  Court. — See  note  93. 

11.  Affirmance — Division  of  Opinion. — Afftrmances  in  the  federal  su- 
preme court,  upon  equal  division  of  opinion,  of  rulings  of  the  circuit  courts  of 
appeals  against  the  legality  of  a  tax,  are  not  such  authoritative  determinations 
of  the  question  as  to  preclude  one  of  the  latter  courts,  when  called  upon  again 
to  consider  the  question,  and  finding  a  decision  of  another  circuit  court  of  ap- 
peals opposed,  from  certifying  such  question  to  the  supreme  court  for  determina- 
tion.99^ 

VI.    Parties  and  Persons  Entitled  to  Appeal. 

A.    Who  Entitled  to  Appeal — 1.    In  General. — See  note  1. 


48-85a.       Conformity      in      substance. — 

Hertz  V.  Woodman,  218  U.  S.  205,  211,  54 
L.  Ed.  1001,  30  S.  Ct.  621. 

49-91.  Certificate  must  present  a  dis- 
tinct point  or  proposition  of  law, — It  has 
been  established  by  repeated  decisions 
that  questions  certified  to  the  federal  su- 
preme court  upon  a  division  of  opinion 
must  be  distinct  points  of  law  clearly 
stated  so  that  they  can  be  distinctly  an- 
swered without  regard  to  other  issues  of 
law  or  of  fact;  and  not  questions  of  fact 
or  of  mixed  law  and  fact  involving  in- 
ferences of  fact  from  particular  facts 
stated  in  the  certificates;  nor  yet  the 
whole  case  even  if  divided  into  several 
points.  Baltimore,  etc.,  R.  Co.  v.  Inter- 
state Commerce  Comm.,  215  U.  S.  216, 
221,  54  L.   Ed.   164,  30  S.   Ct.  86. 

A  question  presented  to  the  federal  su- 
preme court  by  a  certificate  from  a  circuit 
court  of  appeals  need  not  be  answered 
where  it  does  not  propound  a  distinct  is- 
sue of  law,  but,  in  effect,  calls  for  a  de- 
cision of  the  whole  case.  The  Folmina, 
212  U.  S.  354.  53  L.  Ed.  546,  29  S.  Ct.  363. 

50-92.  Review  of  questions  of  fact. — 
Mixed  questions  of  law  and  fact  which  re- 
quire the  construction  of  various  acts  of 
congress  and  the  determination,  in  the 
light  of  all  the  testimony  in  a  criminal 
case,  of  the  question  of  whether  or  not 
the  accused  can  be  held  guilty  of  any  of- 
fense legally  punishable  by  the  United 
States,  can  not  be  certified  by  a  circuit 
court  of  appeals,  under  Act  March  3, 
1891.  c.  517,  §  6,  26  Stat.  828  (U.  S.  Comp. 
St.  1901,  p.  549),  to  the  federal  supreme 
court  for  decision.  Hallowell  v.  United 
States,  209  U.  S.  101,  52  L.  Ed.  702.  28  S. 
Ct.    498. 

51-93.  Can  not  certify  whole  case  to  the 
federal  supreme  court. — Questions  which 
involve  the  determination  of  the  whole 
case  can  not  be  sent  up  to  the  federal  su- 


preme court  by  a  certificate  from  a  circuit 
court  of  appeals.  Chicago,  etc.,  R.  Co.  v. 
Williams,  214  U.  S.  492,  53  L.  Ed.  1058,  29 
S.   Ct.  514. 

It  has  been  settled  that  the  whole  case, 
even  when  its  decision  turns  upon  matter 
of  law  only,  can  not  be  sent  to  the  federal 
supreme  court  by  certificate  of  division. 
Baltimore,  etc.,  R.  Co.  v.  Interstate  Com- 
merce Comm.,  215  U.  S.  216,  221,  54  L.  Ed. 
164,   30   S.   Ct.   86. 

Cases  involving  monopolies  and  inter- 
state commerce. — The  provisions  of  Act 
Feb.  11,  1903,  c.  544,  32  Stat.  823  (U.  S. 
Comp.  St.  Supp.  1907,  p.  951),  permitting 
the  judges  sitting  in  a  suit  arising  under 
the  acts  involving  monopolies  and  inter- 
state commerce,  in  case  of  division  in 
opinion,  to  certify  the  case  to  the  supreme 
court  of  the  United  States  for  review, 
does  not  authorize  the  sending  up  of  the 
whole  case,  and  therefore  that  court  will 
not  consider  a  case  where  no  final  judg- 
ment, order,  or  decree  determinative  of 
the  merits  is  rendered,  but  the  lower  court 
orders  that  this  case  be  certified  for  re- 
view to  the  supreme  court,  and  that  "a 
transcript  of  the  record  and  proceedings 
of  the  cause  aforesaid,  together  with  all 
things  thereunto  relating,  be  transmitted 
to"  that  court,  "and  the  same  is  trans- 
mitted accordingly."  Baltimore,  etc.,  R. 
Co.  V.  Interstate  Commerce  Comm.,  215 
U.  S.  216,  54  L.  Ed.  164,  30  S.  Ct.  86; 
Southern  Pac.  Co.  v.  Interstate  Com- 
merce Comm.,  215  U.  S.  226,  54  L.  Ed.  169, 
30  S.   Ct.  89. 

52-99a.  Affirmance — Division  of  opinion. 
—Hertz  V.  Woodman,  218  U.  S.  205,  54 
L.  Ed.  1001,  30  S.  Ct.  621. 

52-1.  One  who  is  not  a  party  to  a  record 
and  judgment  is  not  entitled  to  appeal 
therefrom.  Ex  oarte  Leaf  Tobacco  Board, 
222  U.  S.  578,  581,  56  L.  Ed.  323,  32  S.  Ct. 
833. 


119 


53-61 


APPEAL  AND  ERROR. 


Vol.  IL 


3.  Party  AcGRmvKD. — A  person  indicted  for  a  crime  can  not  sue  out  a  writ 
of  error  to  review  the  entry  of  a  nolle  prosequi. ^"^ 

4.  Appealable;  Interest — a.    In  General. — See  note  9. 

5.  Particular  Parties  and  Persons  Considered — k.  States — (2)  The 
State  or  United  States  in  Criminal  Cases — (a)  Former  Rule  as  to  Right  of 
United  States  to  Appeal. — As  to  the  right  of  the  United  States  to  appeal  in 
criminal  cases  under  the  laws  of  the  District  of  Columbia,  1901,  §  935,  the  cir- 
cuit court  of  appeals  act  of  March  3,  1891,  and  the  prior  statutes,  see  foot- 
note 55. 

(b)  Statutes  Allozving  United  States  an  Appeal  in  Criminal  Cases — aa.  Right 
of  Appeal  and  Construction  of  Statute.^^^ — By  a  recent  statute,^^''  it  is  provided 


53-8a.  Party  aggrieved. — Where  a  de- 
fendant charged  with  illegally  using  the 
mails  was  discharged  by  nolle  prosequi 
and  sued  out  a  writ  of  error,  held  that  no 
one  may  complain  until  he  has  suffered 
and  that  the  defendant  had  not  been  le- 
gally aggrieved  when  discharged  from  cus- 
tody. Lewis  V.  United  States,  216  U.  S. 
611,  54  L.  Ed.  637,  30  S.   Ct.  438. 

53-9.  Appealable  interest  in  general.— 
The  jurisdiction  of  the  federal  supreme 
court  can  only  be  invoked  by  a  party  hav- 
ing a  personal  interest  in  the  litigation. 
McCandless  v.  Pratt.  211  U.  S.  437,  53  L. 
Ed.  271,  29   S.   Ct.  144. 

Appeal  from  supreme  court  of  Hawaii. 
— A  property  ov/ner  and  taxpayer  has  no 
such  personal  interest  in  a  suit  brought 
by  him  to  restrain  territorial  officers  from 
exchanging  certain  public  lands  of  the 
territory  of  Hawaii  for  other  lands  as  will 
sustain  a  writ  of  error  from  the  federal 
supreme  court  to  review  a  judgment  of 
the  territorial  suprem.e  court,  denying  the 
relief  sought,  where  the  suit  is  grounded 
on  the  theory  that  the  proposed  exchange 
is  illegal  under  the  territorial  laws  be- 
cause the  lands  sought  to  be  exchanged 
are  under  lease  and  are  in  parcels  of  more 
than  1,000  acres.  McCandless  v.  Pratt, 
211  U.  vS.  437,  53  L.  Ed.  271,  29  S.  Ct.  144. 

Error  to  state  court. — Although  the  act 
of  the  state  is  charged  to  be  in  violation 
of  the  national  constitution,  and  though 
the  charge  is  not  frivolous,  this  does  not 
always  give  the  federal  supreme  court  ju- 
risdiction to  review  the  judgment  of  a 
state  court.  The  party  raising  the  ques- 
tion of  constitutionality  and  invoking  the 
federal  supreme  court's  jurisdiction  must 
be  interested  in  and  affected  adversely  by 
the  decision  of  the  state  court  sustaining 
the  act,  and  the  interest  must  be  of  a  per- 
sonal and  not  of  an  official  nature.  Brax- 
ton Countv  Court  v.  State  Tax  Comm'rs, 
208  U.  S.  192.  197,  52  L.  Ed.  450,  28  S.  Ct. 
275. 

A  West  Virginia  county  court  and  its 
members  have  no  personal  interest  in  a 
controversy  over  the  validity,  under  Const. 
U.  S.,  art.  1,  §  10,  as  affecting  county 
bondholders,  of  a  state  statute  limiting  the 
amount  which  may  be  raised  by  taxation, 
so  as  to  sustain  a  writ  of  error  from  the 


supreme  court  of  the  United  States  to  re- 
view a  judgment  of  the  West  Virginia  su- 
preme court  of  appeals,  awarding  a  man- 
damus to  compel  the  county  court  to 
change  its  assessment  to  conform  to  the 
requirements  of  the  statute.  Braxton 
County  Court  v.  State  Tax  Comm'rs,  208 
U.   S.  192,  52   L.  Ed.  450,  28  S.  Ct.  275. 

61-55.  Former  rule  as  to  right  of  the 
United  States  to  appeal. — See  the  title 
APPEAL  AND  ERROR,  vol.  2,  pp.  59,  60, 
61,  footnote  43-56,   inclusive. 

"In  United  States  v.  Sanges,  144  U.  S. 
310,  36  L.  Ed.  445,  12  S.  Ct.  609  (decided 
April  4,  1892),  it  was  held,  on  great  con- 
sideration, that  the  right  of  review  given 
by  that  provision  of  §  5,  so  far  as  it  related 
to  criminal  cases,  must  be  limited  to  re- 
view at  the  instance  of  the  defendant 
after  a  decision  in  favor  of  the  govern- 
ment. The  decision  was  reached  after  a 
thorough  examination  of  the  federal  leg- 
islation as  to  appellate  jurisdiction  in 
criminal  cases  and  of  the  authorities  in 
England  and  in  the  United  States  relating 
to  criminal  appeals,  in  which  the  court 
finds  no  precedent  without  express  statu- 
tory enactment  for  any  review  of  any 
judgment  in  favor  of  the  accused." 
United  States  v.  Dickinson,  213  U.  S.  92, 
53  L.  Ed.  711,  29  S.  Ct.  485. 

Laws  of  District  of  Columbia,  1901, 
§  935. — An  appeal  after  a  verdict  of  not 
guilty  in  a  criminal  case  was  not  author- 
ized on  behalf  of  the  government  by  the 
provisions  of  Code  of  Laws  D.  C.  1901, 
§  935,  that,  "in  all  criminal  prosecutions, 
the  United  States  or  the  District  of  Co- 
lumbia, as  the  case  may  be,  shall  have  the 
same  right  of  appeal  as  is  given  to  the 
defendant,  including  the  right  to  a  bill  of 
exceptions;  provided,  that  if,  on  such  ap- 
peal, it  shall  be  found  that  there  was  er- 
ror in  the  ruHngs  of  the  court  during  the 
trial,  a  verdict  in  favor  of  the  defendant 
shall  not  be  set  aside."  United  States  v. 
Evans.  213  U.  S.  297,  53  L.  Ed.  803,  29  S. 
Ct.   507. 

61-56a.  See  post,  "In  Criminal  Cases," 
IX.  D.  2,  h. 

61-56b.  Recent  statute. — Act  of  March  2, 
1907,  chap.  2564,  34  Stat,  at  L.  1246.  See 
Herer.cia  v.  Guzman,  219  U.  S.  44,  55  L- 
Ed.  81.  31   S.  Ct.  135. 


120 


Vol.  II. 


APPEAL  AND  ERROR. 


61 


that  a  writ  of  error  may  be  taken  by  and  on  behalf  of  the  United  States  from 
the  district  courts  direct  to  the  supreme  court  of  the  United  States  in  all  crim- 
inal cases,  in  the  following  instances,  to  wit:  From  a  decision  or  judgment 
quashing,  setting  aside,  or  sustaining  a  demurrer  to  any  indictment  or  any  count 
thereof,  where  such  decision  or  judgment  is  based  upon  the  invalidity  or  con- 
struction of  the  statute  upon  which  the  indictment  is  founded. ^^"^     From  a  de- 


61-56C.  Decisions  quashing  indictments 
— Construction     of     Immigration    Act. — 

The  United  States  may  bring  error  under 
Act  Marcli  2,  1907,  c.  2564,  34  Stat.  1246 
[U.  S.  Comp.  St.  Supp.  1907,  p.  209],  to 
review  a  judgment  of  a  federal  circuit 
court,  quashing  an  indictment  for  violat- 
ing Immigration  Act  March  3,  1903,  c. 
1012,  §  18,  32  Stat.  1213,  1217,  by  willfully 
permitting  an  alien  to  land  at  another 
place  than  that  designated  by  the  immi- 
gration officers,  because  the  indictment 
disclosed  that  the  alien  in  question  was  a 
seaman.  Judgment  (C.  C.  A.),  152  F.  1, 
affirmed.  Taylor  v.  United  States,  207  U. 
S.  120,  52  L.  Ed.  130,  28  S.  Ct.  53;  Schrot- 
ter  V.  United  States,  157  F.  1005. 

Construction  of  oleomargarine  laws. — • 
The  United  States  may  sue  out  a  writ  of 
error  to  the  federal  supreme  court  where 
the  lower  court  quashes  an  indictment  on 
the  ground  that  the  sixth  section  of  the 
act  of  congress  May  1902,  c.  784,  §  6.  32 
Stat.  193,  197,  requiring  wholesale  dealers 
in  oleomargarine,  etc.,  to  keep  certain 
books  and  make  certain  returns,  is  not 
applicable  to  corporations.  United  States 
V.  Union  Supply  Co.,  215  U.  S.  50,  54  L. 
Ed.   87,   30   S.  Ct.  15. 

Construction  of  statute  as  misapplica- 
tion national  bank  funds. — A  judgment 
of  a  federal  circuit  court,  quashing,  on 
motion,  certain  counts  of  an  indictment 
for  willfully  misapplying  the  funds  of  a 
national  bank,  in  violation  of  Rev.  St.  U. 
S.,  §  5209  (U.  S.  Comp.  St.  1901,  p.  3497), 
because  they  possessed  the  defects  which 
that  court  had  found  in  a  prior  indictment, 
which  it  held  did  not  charge  a  crime  un- 
der the  statute,  is  reviewable  in  the  fed- 
eral supreme  court  under  Act  March  2, 
1907,  c.  2564,  34  Stat.  1246  (U.  S.  Comp. 
St.  Supp.  1909,  p.  220),  as  a  decision  quash- 
ing a  count  in  an  indictment  based  upon 
the  construction  of  the  statute  upon  which 
the  indictment  is  founded.  United  States 
V.  Heinze,  No.  2,  218  U.  S.  547,  54  L.  Ed. 
1145,  31  S.  Ct.  102. 

The  construction  of  a  statute  is  con- 
cerned so  as  to  give  the  supreme  court  of 
the  United  States  jurisdiction  of  a  writ  of 
error  to  the  United  States  district  court 
in  behalf  of  the  government  in  a  criminal 
case,  under  Act  March  2,  1907,  c.  2564,  34 
Stat.  1246  (U.  S.  Comp.  St.  Supp.  1907,  p. 
209),  where  an  indictment  against  a  na- 
tional bank  officer  for  making  false  re- 
ports to  the  comptroller  of  the  currency 
is  quashed  because  such  officer  is  not  an 
agent   within    the   meaning  of  the    statute 


defining  the  crime.  United  States  v.  Cor- 
bett,  215  U.  S.  233,  54  L.  Ed.  173,  30  S. 
Ct.  81,  reversing  162  Fed.  687. 

Construction  of  statute  relative  to  ille- 
gally acquiring  coal  lands. — Jurisdiction  of 
the  federal  supreme  court  of  a  writ  of 
error  sued  out  under  Act  March  2,  1907,  c. 
2564,  34  Stat.  1246  (U.  S.  Comp.  St.  Supp. 
1907,  p.  209),  to  review  a  judgment  of  a 
federal  district  court  quashing  an  indict- 
ment for  a  conspiracy  illegally  to  acquire 
coal  lands  from  the  United  States,  be- 
cause of  the  opinion  that  the  federal  stat- 
ute did  not  prohibit  the  acts  complained 
of,  can  not  be  successfully  challenged  on 
the  theory  that  the  indictment,  and  not 
the  statute,  was  construed.  Order  (D.  C. 
1907),  157  F.  396,  reversed.  United  States 
V.  Keitel,  211  U.  S.  370,  53  L.  Ed.  230,  29 
S.  Ct.  123;  United  States  v.  Herr,  211  U. 
S.  404,  53  L.  Ed.  251.  29  S.  Ct.  134;  S.  C, 
211  U.  S.  406,  53  L.  Ed.  252,  29  S.  Ct.  135. 

Interpretation  is  included  in  the  term 
"construction,"  as  used  in  the  act  of 
March  2,  1907  (34  Stat,  at  L.  1246,  chap. 
2564,  U.  S.  Comp.  Stat.  Supp.  1907.  p. 
209),  authorizing  a  writ  of  error  on  behalf 
of  the  government  from  the  federal  su- 
preme court  to  review  the  judgment  of  a 
district  or  circuit  court  sustaining  a  de- 
murrer to  an  indictment  when  based  upon 
the  construction  of  the  statute  upon  which 
such  indictment  is  founded.  United  States 
V.  Biggs,  211  U.  S.  507,  53  L.  Ed.  305,  29 
S.    Ct.    181. 

Interpretation  as  v/ell  as  construction  of 
the  statute,  conceding  an  abstract  dis- 
tinction between  these  two  terms,  is  com- 
prehended by  the  provision  of  Act  March 
2,  1907,  c.  2564,  34  Stat.  1246  (U.  S.  Comp. 
St.  Supp.  1907,  p.  209),  authorizing  a 
writ  of  error  on  behalf  of  the  government 
froin  the  federal  supreme  court  to  review 
a  judgment  of  a  district  or  circuit  court, 
quashing  an  indictment,  when  based  upon 
the  construction  of  the  statute  upon  which 
the  indictment  is  founded.  Order  (D.  C. 
1907),  157  F.  396,  reversed.  United  States 
V.  Keitel,  211  U.  S.  370.  53  L.  Ed.  230,  29 
S.  Ct.  123;  United  States  v.  Herr.  211  U. 
S.  404,  53  L.  Ed.  251,  29  S.  Ct.  134;  S.  C, 
211  U.  S.  406,  53  L.  Ed.  252,  29  S.  Ct.  135. 

But  the  action  of  the  court  below  as  to 
the  mere  construction  of  an  indictment  is 
not  open  to  review  on  the  writ  of  error 
authorized  by  such  act.  United  States  v. 
Biggs,  211  U.  S.  507,  53  L.  Ed.  305,  29  S. 
Ct.  181;  United  States  v.  Sullenberger,  211 
U.    S.   522,   53    L.   Ed.   311,   29   S.    Ct.     186; 


121 


61 


APPEAL  AND  ERROR. 


Vol.  II. 


cision  arresting  a  judgment  of  conviction  for  insufficiency  of  the  indictment, 
where  such  decision  is  based  upon  the  invalidity  or  construction  of  the  statute 
upon  which  the  indictment  is  founded.^*"*  From  the  decision  or  judgment  sus- 
taining a  special  plea  in  bar,  when  the  defendant  has  not  been  put  in  jeopardy.^*'^ 
There  is,  however,  the  important  proviso  that  no  writ  of  error  shall  be  taken 
by  or  allowed  the  United  States  in  any  case  where  there  has  been  a  verdict  in 
favor  of  the  defendant.  This,  of  course,  was  added  to  obviate  the  constitutional 
<ibjection  of  former  jeopardy. °°^ 


United  States  v.  Freeman,  211  U.  S.  525, 
.53    L.    Ed.    ^;ll,   29    S.    Ct.    ]S5. 

Judgments  sustaining  demurrers  to  in- 
dictments.— Where  the  trial  court  sus- 
tains a  demurrer  to  the  indictment  on  the 
ground  that,  as  to  the  offense  charged,  the 
statute,  properly  construed,  does  not  in- 
clude the  defendant,  the  case  is  one  that 
may  be  brought  to  the  federal  supreme 
court.  United  States  v.  Mescall,  215  U. 
S.  26,  54  L.  Ed.  77,  30  S-  Ct.  19,  following 
United  States  v.  Keitel,  211  U.  S.  370,  53 
L.  Ed.  230,  29  S.  Ct.  123. 

A  judgment  of  a  federal  district  court 
sustaining  a  demurrer  to  an  indictment 
upon  two  grounds,  one  of  which  involves 
the  construction  of  the  federal  statute  on 
which  the  indictment  is  founded,  and  the 
•other  the  sufficiency  of  such  indictment 
upon  general  principles  of  criminal  law,  is 
reviewable  in  the  federal  supreme  court  on 
writ  of  error,  under  Act  March  2,  1907,  c. 
2564,  34  Stat.  1246  (U.  S.  Comp.  St.  Supp. 
3  907,  p.  209),  authorizing  such  writs  of 
error  to  review  a  judgment  sustaining  a 
demurrer  to  an  indictment,  when  such 
judgment  is  "based  upon  the  invalidity  or 
construction  of  the  statute  upon  which  the 
indictment  is  founded."  United  States  v. 
Stevenson,  215  U.  S.  190.  54  L.  Ed.  153, 
30   S.    Ct.   35. 

Introducing  liquor  into  Indian  country. 
— The  decision  of  a  federal  district  court 
sustaining  a  demurrer  to  an  indictment  for 
introducing  liquor  into  the  Indian  coun- 
try is  reviewable  in  the  federal  supreme 
•court  by  writ  of  error,  under  Act  March  2, 
1907,  c.  2564,  34  Stat.  1246  (U.  S.  Comp. 
St.  Supp.  1909.  p.  220).  where  the  ques- 
tion whether  the  indictment  charges  any 
offense  against  the  United  States  involves 
the  validity  of  Act  Jan.  30,  1897,  c.  109, 
29  Stat.  506,  as  applied  to  the  facts  stated 
United  States  v.  Sutton,  215  U.  S.  291,  54 
L.  Ed.  200,  30  S.  Ct.  116,  reversing  judg- 
ment   ("Wash.),   ]65   Fed.  253. 

Misapplying  funds  of  national  bank. — 
A  judgment  of  a  federal  circuit  court 
holding  insufficient  on  demurrer  certain 
counts  of  an  indictment  charging  willful 
misapplication  of  the  funds  of  a  national 
bank,  in  violation  of  Rev.  St.  U.  S..  §  5209 
rU.  S.  Comp.  St.  1901,  p.  3497),  because 
the  facts  alleged  did  not  constitute  a  crime 
under  that  section,  as  it  should  be  con- 
strued, is  reviewable  in  the  supreme  court, 
under  Act  March  2,  1907,  c.  2564,  34  Stat. 


1246  (U.  S.  Comp.  St.  Supp.  1909,  p.  220), 
as  based  upon  the  construction  of  the 
statute  upon  which  the  indictment  was 
founded.  United  States  v.  Heinze,  218 
U.    S.   532,   54   L.    Ed.   1139,   31    S.    Ct.   98. 

61-56d.  Appeal  from  decision  arresting 
a  conviction  for  insufficiency  of  the  indict- 
ment.— This  section  has  not  yet  been  ju- 
diciall}'  construed.  See  post,  "Scope  of 
Review."  VI,  A,  5,  k,  (2),  (b),  bb. 

61-56e.  Appeal  from  decision  sustaining 
plea  in  bar. — The  judgment  actually  en- 
tered below,  and  not  the  terms  of  a  stipu- 
lation of  counsel  previously  made  and 
filed,  controls  the  federal  supreme  court 
in  determining  whether  such  judgment  is 
reviewable  on  writ  of  error  under  Act 
]\Iarch  2,  1907,  c.  2564,  34  Stat.  1246  (U.  S. 
Comp.  St.  Supp.  1909,  p.  220),  as  one  sus- 
taining a  special  plea  in  bar  when  the  de- 
fendant has  not  been  put  in  jeopardy. 
United  States  v.  Barber,  219  U.  S.  72,  55 
L.  Ed.  99,  31  S.  Ct.  209. 

The  decision  of  a  federal  circuit  court 
sustaining  a  special  plea  in  bar  to  an  in- 
dictment is  reviewable  in  the  supreme 
court,  under  Act  March  2,  1907,  c.  2564, 
34  Stat.  1246  (U.  S.  St.  Supp.  1909,  p.  220), 
although  the  decision  may  involve  the  ap- 
plication rather  than  the  invalidity  or  con- 
struction, strictly  speaking,  of  the  statute 
upon  which  the  indictment  was  founded. 
United  States  v.  Celestine,  215  U.  S.  278, 
54    L.    Ed.    195,   30   S.    Ct.   93. 

A  judgment  of  a  federal  district  court 
purporting  to  dismiss  an  indictment  upon 
the  ground  that  the  statute  of  limitations 
was  a  bar  to  the  prosecution  is  one  sus- 
taining a  special  plea  in  bar  within  the 
meaning  of  Act  March  2,  1907,  c.  2564,  34 
Stat.  1246  (U.  S.  Comp.  St.  Supp.  1909,  p. 
220),  governing  the  right  of  the  govern- 
ment to  a  review  in  a  criminal  case,  al- 
though the  plea  of  the  statute  of  limita- 
tions filed  and  heard  by  consent  and 
stipulation  was  denominated  a  plea  in 
abatement.  United  States  v.  Barber,  219 
U.   S.   72,  5.-)   L.   Ed.   99.  31   S.   Ct.  209. 

61-56f.  Qualification.— West.  etc..  R.  Co. 
V.  Pittsburgh  Constr.  Co.,  219  U.  S.  92.  55 
L.  Ed.  107\  31  S.  Ct.  196.  See  the  title 
.\UTREFOTS.  ACQUIT  AND  CON- 
VICT, vol.  2,  p.  751.  See  post.  AUTRE- 
FOIS, ACQUIT  AND  CONVICT.  And 
see  post,  CONSTITUTIONAL  LAW. 

The  act  is  directed  to  judgments  ren- 
dered before   the   moment   of  jeopardy   is 


122 


Vol.  II. 


APPEAL  AND  ERROR. 


61 


Purpose  of  Act. — If  a  court  of  original  jurisdiction  errs  in  quashing,  setting 
aside  or  dismissing  an  indictment  for  an  alleged  offense  against  the '  United 
States,  upon  the  ground  that  the  statute  on  which  it  is  based  is  unconstitutional, 
■or  upon  the  ground  that  the  statute  does  not  embrace  the  case  made  by  the 
indictment,  there  is  no  mode  in  which  the  error  can  be  corrected  and  the  provi- 
sions of  the  statute  enforced,  except  the  case  be  brought  here  by  the  United 
States  for  review.  Hence,  that  there  might  be  no  unnecessary  delay  in  the  ad- 
ministration of  the  criminal  law  and  that  the  courts  of  original  jurisdiction  may 
be  instructed  as  to  the  validity  and  meaning  of  the  particular  criminal  statute 
sought  to  be  enforced,  the  above  act  of  1907  was  passed. ^^^g 

Strict  Construction, — So  far  as  the  statute  is  an  innovation  in  criminal 
jurisdiction  in  certain  classes  of  prosecutions,  it  can  not  be  extended  beyond  its 
terms.^^'' 

bb.  Scope  of  Reviezi'. — In  General. — The  whole  case  is  not  open  to  review 
in  the  supreme  court  of  the  United  States  on  the  writ  of  error  to  a  federal  dis- 
trict or  circuit  court,  authorized  on  behalf  of  the  government  in  criminal  cases 
by  Act  Alarch  2,  1907,  c.  2564,  34  Stat.  1246  (U.  S.  Comp.  St.  Supp.  1907,  p. 
-209),  but  the  scope  of  review  is  limited  to  the  particular  decisions  enumerated 
in  that  statute.^*^' 

Appeals  from  Decisions  Sustaining  Demurrers  to  Indictments. — Upon 
a  direct  writ  of  error  from  judgments  of  the  trial  court  sustaining  demurrers 
to  an  indictment,  the  federal  supreme  court  must  accept  that  court's  interpreta- 
tion of  the  indictments  and  confine  its  review  to  the  question  of  the  construc- 
tion of  the  statute  involved  in  its  decision. ^^'^ 


reached  and  is  therefore  not  in  conflict 
with  the  5th  Amend,  of  the  federal  consti- 
tution. Taylor  z:  United  States,  207  U.  S. 
120,  52  L.  Ed.  130,  28  S.  Ct.  53. 

Constitutional  rights  of  the  accused  are 
^ot  violated  by  the  act  of  March  2,  1907 
(34  Stat,  at  L.  1246,  chap.  2564,  U.  S.  Comp. 
:Stat.  Supp.  1907,  p.  209),  authorizing  the 
United  States  to  bring  up  a  criminal  case 
-from  a  circuit  court  to  the  supreme  court 
•by  a  direct  writ  of  error  where  an  indict- 
ment has  been  quashed  or  set  aside,  or  a 
'demurrer  to  the  indictment  or  any  count 
thereof  has  been  sustained  on  the  ground 
of  the  invalidity  or  construction  of  the 
statute  upon  which  the  indictment  was 
founded,  although  such  statute  does  not 
allow  the  accused  to  bring  up  the  case  in 
the  same  way  when  a  demurrer  to  the  in- 
dictment or  some  count  thereof  has  been 
-overruled.  United  States  z\  Bitty,  208  U. 
S.  393,  52   L.   Ed.  543,  28   S.  Ct.  396. 

61-56g.  Purpose  of  act. — United  States 
-V.  Bitty,  208  U.  S.  393,  400,  52  L.  Ed.  543, 
28    S.   Ct.   396. 

61-56h.  Strict  construction.  —  United 
States  V.  Dickinson.  213  U.  S.  92,  53  L.  Ed. 
Til,  29  S.  Ct.  485. 

Hence,  want  of  power  in  the  federal  su- 
preme court  under  Act  March  3,  1891,  c. 
517,  §  6.  26  Stat.  828  (U.  S.  Comp.  St.  1901. 
p.  549),  to  review  by  certiorari  a  judgment 
of  the  circuit  court  of  appeals,  reversing 
a  conviction  below,  can  not  be  helped  out 
by  Act  March  2,  1907,  c.  2564,  34  Stat.  1246 
(U.  S.  Comp.  St.  Supp.  1907,  p.  209),  pro- 
viding for  writs  of  error  on  behalf  of  the 


government  in  certain  instances  in  crimi- 
nal cases,  which,  being  an  innovation  in 
criminal  jurisdiction  in  certain  classes  of 
prosecutions,  can  not  be  extended  beyond 
its  terms.  United  States  v.  Dickinson,  213 
U.  S.  92,  53  L.  Ed.  711,  29  S.  Ct.  485. 

61-56i.  Scope  of  review  in  general. — 
Order  (D.  C.  1907)  157  F.  396,  reversed. 
United  States  v.  Keitel,  211  U.  S.  370,  53 
L.  Ed.  230,  29  S.  Ct.  123;  United  States  v. 
Herr,  211  U.  S.  404,  53  L.  Ed.  251,  29  S.  Ct. 
134;  S.  C,  211  U.  S.  406,  53  L.  Ed.  252,  29 
S.  Ct.  135. 

Every  question  of  the  character  referred 
to  in  the  act  of  March  2,  1907,  authorizing 
a  writ  of  error  on  behalf  of  the  govern- 
ment from  the  federal  supreme  court,  to 
review  certain  judgments  of  the  federal 
district  and  circuit  courts  in  criminal  cases, 
need  not  be  decided  by  the  supreme  court 
when,  by  the  decision  of  one  of  such  ques- 
tions, the  case  is  completely  disposed  of 
and  the  other  questions  have  become  irrel- 
evant. United  States  v.  Biggs,  211  U.  S. 
507.  53  L.  Ed.  305,  29  S.  Ct.  181. 

61-56J.  Interpretation  and  construction 
of  indictment. — United  States  z\  Miller, 
223  U.  S.  599,  56  L.  Ed.  568,  32  S.  Ct.  323, 
citing  United  States  v.  Keitel,  211  U.  S. 
370,  398,  53  L.  Ed.  230,  29  S.  Ct.  123;  United 
States  V.  Kissel.  218  U.  S.  601,  606,  54  L. 
Ed.  1168,  31  S.  Ct.  124. 

Where  the  trial  court  sustains  a  demur- 
rer to  the  indictment  on  the  ground  that, 
as  to  the  offense  charged,  the  statute, 
properly  construed,  does  not  include  the 
defendant,  the  scope  of  the  inquiry  in  the 


123 


61-62  APPEAL    AND    ERROR.  Vol.  II. 

The  sufficiency  of  the  indictment  upon  general  principles  of  criminal 

law  is  not  open  for  review  in  the  federal  supreme  court  on  the  writ  of  error 
to  a  federal  district  court  authorized  on  behalf  of  the  government  by  Act  March 
2,  1907,  c.  2564,  34  Stat.  1246  (U.  S.  Comp.  St.  Supp.  1907,  p.  209),  to  review 
judgments  or  decisions  sustaining  demurrers  to  an  indictment,  when  based  upon 
the  construction  of  the  federal  statute  on  which  the  indictment  is  founded.^^'^ 

Prosecution  for  Receiving  Rebates. — The  question  presented  for  decision 
on  direct  writ  of  error  to  a  circuit  court  from  judgments  sustaining  demurrers 
to  indictments  under  the  act  to  regulate  commerce  of  June  29,  1906  (34  Stat,  at 
L.  584,  chap.  3591,  U.  S.  Comp.  Stat.  Supp.  1909,  p.  1149),  making  it  a  mis- 
demeanor for  a  shipper  knowingly  to  solicit,  accept,  or  receive  a  rebate  or  con- 
cession whereby  property  is  transported  in  interstate  commerce  at  a  less  rate 
than  that  named  in  the  tariffs  "published  and  filed"  by  the  carrier,  on  the 
ground  that  the  indictments  did  not  allege  that  the  schedules  and  tariffs  claimed 
to  have  been  violated  were  posted  in  the  manner  required  by  law,  is  whether 
compliance  with  the  requirements  of  the  act  as  to  posting  of  tariffs  is  essential 
to  bring  a  tariff  within  the  descriptive  terms  of  the  act.'^^' 

Appeals  from  Decisions  Sustaining  Pleas  in  Bar. — The  only  question 
before  the  federal  supreme  court  on  an  appeal  taken  under  Act  March  2,  1907, 
c.  2564,  34  Stat.  1246  (U.  S.  Comp.  St.  Supp.  1909,  p.  220),  from  a  judgment 
sustaining  a  special  plea  in  bar  when  the  defendant  has  not  been  put  in  jeopardy, 
is  whether  such  plea  in  bar  can  be  sustained.^*'™ 

The  various  grounds  of  demurrer  to  the  indictment  can  not  be  con- 
sidered on  a  writ  of  error  sued  out  by  the  government  in  a  criminal  case,  under 
Act  March  2,  1907,  c.  2564,  34  Stat.  1246  (U.  S.  Comp.,St.  Supp.  1907,  p.  209), 
to  review  a  judgment  "sustaining  a  special  plea  in  bar  when  the  defendant  has 
not  been  put  in  jeopardy,"  but  the  court  has  jurisdiction  to  review  only  the  rul- 
ing of  the  court  below  on  the  sufficiency  of  such  plea.^^" 

B.  Proper  and  Necessary  Parties — 1.  Plaintiff  in  Error— a.  In  Gen- 
eral.— See  note  63. 

federal  supreme  court  is  limited  to  the  par-  Stat.  12G4   (U.  S.  Comp.  St.  Supp.  1909,  p. 

ticular  question  decided  by  the  court  be-  220),  the  act  of  the  trial  court  sustaining 

low.     United  States  v.  Mescall,  215  U.  S.  a  plea  in  bar  of  the  statute  of  limitations 

26,    54  L.    Ed.    77,  30  S.'   Ct.  19,    following  to    an    indictment    charging    a    continuing 

United  States  v.  Keitel,  211  U.  S.  370,  53  conspiracy,     is    not    concerned    with    the 

L.  Ed.  230,  29  S.  Ct.  123.  technical  sufficiency  or  redundancy  of  the 

The  action  of  the  court  below  as  to  the  indictment,  or  even  with  any  consideration 

mere  construction  of  the  indictment  is  not  of    the    nature    of  the    overt    acts    alleged, 

open  to  review  on  the  writ  of  error  author-  United  States  v.  Barber,  219  U.  S.  72,  55 

ized  by   the  act    of  March  2,    1907,  on    be-  L.  Ed.  99,  31  S.  Ct.  209;     United  States  v. 

half  of  the  government,  to  review  a  judg-  Kissel,  218  U.  S.  601,  54  L.  Ed.  1168,  31  S. 

ment  of  a  district  or  circuit  court  sustain-  Ct.  124. 

ing  a    demurrer    to    an    indictment  on    the  61-56n,     Various  grounds  of  demurrer. — 

ground  of  the  construction  of  the  statute  United  States  v.  Mason,  213  U.  S.  115,  53 

upon    which    the    indictment    is    founded.  L.  Ed.  725,  29  S.  Ct.  480. 
United  States  v.   Biggs,  211  U.  S.  507,  53  62-63.      Judges.— A  writ  of  error  to  the 

L.  Ed.  305,  29  S._  Ct.  181.         _  circuit  court  of  appeals  to  review  a  judg- 

61-56k.     Sufficiency  of  indictment  upon  ment  of  that  court  issuing  a  peremptory 

general  principles. — United  States  v.   Ste-  mandamus    requiring   a     district    court    to 

venson,  215  U.  S.  190,  54  L.  Ed.  153,  30  S.  modify  its  judgment   entered  in   supposed 

Ct.  35.  ^  ^  compliance    with    the    mandate  of  the    su- 

61-561.      Prosecution    for    receiving    re-  preme  court  will  not  be  dismissed  because 

bates.— United  States  v.  Miller,  223  U.  S.  the    district  judge    obeyed    the  order    and 

599,  56  L.  Ed.  568,  32  S.  Ct.  323.  did  not  sue  out  the  writ,  where  it  appears 

_    61-56m.  _  Appeals  from  decisions  sustain-  on    the  record   that  the   judge  declined    to 

ing  pleas  in  bar.— United  States  v.  Kissel,  join,    that  he    has  no    personal  interest    in 

218  U.  S.  601,  54  L.  Ed.  1168,  31  S.  Ct.  124,  the  judgment,  and  that  the  plaintiffs  in  er- 

reversmg  judgment  173  Eed.  823.  ror  have  such  an  interest,  and  were  made 

_    The  federal  supreme  court  when  review-  parties  for  the  purpose  of  protecting  their 

mg   under  Act    March  2,    1907,  c.  2564,    34  rights.     Judgment,  Ex  parte  Chicago  Title 

124 


Vol.  II. 


APPEAL  AND  ERROR. 


64-80 


c.   Parties  to  Joint  Judgments  and  Decrees — (1)    In  General. — See  note  66. 

(3)  Summons  and  Severance  or  Equivalent  Proceedings. — See  note  70. 

(4)  Limitations  of  General  Rtile. — See  note  76. 

E.  Death  of  Party — 2.  Of  Plaintiff  in  Error. — Rule  in  Habeas  Cor- 
pus Proceedings. — The  death  of  the  appellant  abates  an  appeal  to  the  federal 
supreme  court  from  an  order  of  a  federal  circuit  court  denying  relief  by  habeas 
corpus.--'^ 

3.  Of  Defendant  in  Error. — Proceedings  to  make  the  representatives  of  a 
deceased  appellee  parties  are  rightfully  taken  in  the  supreme  court  of  the  United 
States  rather  than  in  the  court  below,  where  the  appeal  had  not  only  been  al- 
lowed, but  the  citation  issued  and  acceptance  of  service  thereon  made  by  the 
attorney  of  record  of  such  appellee  during  his  lifetime. -^^ 

VII.  Waiver  of  Right. 

B.  Implied  Waiver  or  Release  of  Errors — 1.  In  General. — The  maxim 
of  volenti  non  fit  injuria  may  be  invoked  to  estop  a  plaintiff  in  error  from  in- 
sisting upon  an  error  in  which  he  has  acquiesced."^^^ 

And  where  the  owner  of  land,  in  condemnation  proceedings,  accepts  the 
award  on  the  commissioners,  the  objection  that  part  and  not  all  of  his  land  was 
taken,  as  required  by  statute,  is  waived  and  can  not  be  maintained  on  appeal.^^'' 


&  Trust  Co.,  146  F.  742,  77  C.  C.  A.  408,  re- 
versed. Ex  parte  First  Nat.  Bank,  207  U. 
S.  61,  52  L.  Ed.  103,  28  S.  Ct.  23. 

64-66.  Parties  to  joint  judgments  and 
decrees. — The  rule  which  requires  the  par- 
ties to  a  judgment  or  decree  to  join  in  an 
appeal  or  writ  of  error,  or  be  detached 
from  the  right  by  some  proper  proceed- 
ing, or  by  their  renunciation,  is  firmly  es- 
tablished. Winters  v.  United  States,  207 
U.  S.  564,  574,  52  L.  Ed.  340,  28  S.  Ct.  207, 
citing  many  early  cases. 

66-70.  Summons  and  severance  or  equiv- 
alent proceedings. — An  appeal  by  one  of 
several  defendants  below  will  be  dismissed 
by  the  federal  supreme  court,  where 
the  other  defendants  do  not  join  in  the  ap- 
peal, and  there  is  no  summons  and  sever- 
ance or  its  equivalent.  Maytin  v.  Vela, 
216  U.  S.  598,  54  E.  Ed.  632,  30  S.  Ct.  439. 
See  Winters  v.  United  States,  207  U.  S. 
564,  52  L.   Ed.  340,  28  S.  Ct.  207. 

68-76.  Limitations  of  general  rule. — 
The  rule  which  requires  the  parties  to  a 
judgment  or  decree  to  join  in  an  appeal 
or  writ  of  error,  or  be  detached  from  the 
right  by  some  proper  proceeding,  or  by 
their  renunciation,  only  applies  to  joint 
judgments  or  decrees.  In  other  words, 
when  the  interest  of  a  defendant  is  sepa- 
rate from  that  of  other  defendants  he  may 
appeal  without  them.  Winters  v.  United 
States,  207  U.  S.  564,  574,  52  L.  Ed.  340,  28 
S.  Ct.  207. 

Those  defendants  in  a  suit  to  enjoin  the 
diversion  of  water  who  have  defaulted,  and 
against  whom  a  decree  pro  confesso  has 
been  entered,  are  not  necessary  parties  to 
an  appeal  from  a  decree  granting  a  perma- 
nent injunction  taken  by  the  answering 
defendants,  who  justified  by  counter  rights 


and  submitted  those  rights  for  judgment. 
Judgment  (1906)  148  F.  684,  78  C.  C.  A. 
546,  affirmed.  Winters  v.  United  States, 
207  U.  S.  564,  52  L.  Ed.  340,  28  S.  Ct.  207. 

All  the  defendants  named  in  a  bill  to 
enjoin  the  diversion  of  water  need  not 
join  in  an  appeal  from  a  decree  granting 
a  permanent  injunction,  where  the  bill 
does  not  necessarily  imply  concert  of  ac- 
tion or  union  of  interest,  and  the  answer 
is  joint  and  several,  and  in  effect  avers 
separate  rights,  interests,  and  action  on 
the  part  of  the  defendants.  Judgment 
(1906)  148  F.  684,  78  C.  C.  A.  546,  affirmed 
Winters  v.  United  States,  207  U.  S.  564,  52 
L.   Ed.  340,  28  S.   Ct.  207. 

77-22a.  Rule  in  habeas  corpus  proceed- 
ings.— Johnson  v.  Tennessee,  214  U.  S. 
-185,  53  "L.  Ed.  1056,  29  S.  Ct.  651.  See  post, 
HABEAS  CORPUS. 

77-23a.  Defendant  in  error. — Judgment 
(1906)  85  P.  459,  16  Okl.  131,  affirmed. 
Southern  Pine  Lumber  Co.  v.  Ward,  208 
U.   S.   126,  52  L.   Ed.  420.  28  S.   Ct.  239. 

80-45a.  Implied  waiver  or  release  of 
errors. — Herencia  ?■.  Guzman,  219  U.  S.  44, 
55  L.  Ed.  81,  31  S.  Ct.  135. 

No  question  is  presented  to  an  appellate 
court  with  respect  to  the  admissibility  of 
the  testimony  of  a  phj'sician  appointed  by 
the  trial  court  in  a  negligence  action  to 
examine  the  plaintiflf  in  order  to  ascertain 
liis  present  condition,  where  such  appoint- 
ment was  made  with  the  consent  of  coun- 
sel, and  the  witness  su1)sequently  testified 
svithout  objection.  Herencia  v.  Guzman, 
:219  U.  S.  44,  55  L.  Ed.  81.  31  S.  Ct.  135. 
See  post,  "Implied  Waiver."  XVI,  C,  2. 

80-45b.  Condemnation  proceedings. — 
Winslow  T'.  Baltimore,  etc.,  R.  Co.,  208  U. 
S.  59,  52  L.  Ed.  388,  28  S.  Ct.  190.  See  post, 
EMINENT  DOMAIN. 


125 


86-103 


APPEAL  AND   ERROR. 


Vol.  IL 


VIII.    Exceptions  and  Objections. 

A.  General  Principles — 3.    Necessity  for  Exceptions. — See  note  72. 
4.    Time  for  Perfecting  Exceptions. — See  note  79. 

B.  Application  of  Rules  to  Particular  Instances — 1.  Form  of  Action^ 
Modes  of  Procedure  and  Irregularities  at  the  Triae. — See  note  89. 

Want  of  Hearing. — The  objection  that  a  judgment  of  the  district  court  of 
the  United  States  for  Porto  Rico,  sustaining  a  plea  of  res  judicata,  and,  upon- 
that  ground,  dismissing  the  complaint,  was  erroneous  because  plaintiff  was  not 
accorded  a  proper  hearing,  is  not  available  on  an  appeal  to  the  federal  supreme 
court,  where  there  was  no  formal  exception  taken  to  any  ruling  or  decision  on 
the  subject. ^^^ 

6.  Matters  of  Defense. — Equitable  Defenses. — In  an  action  at  law,  the 
objection  that  the  defense  is  of  equitable  cognizance  can  not  be  raised  for  the 
first  time  in  the  supreme  court. ^'^ 

Failure  to  Plead  Counterclaim  or  Set-Off. — A  contractor  for  screen- 
wagon  mail  service  whose  petition  for  compensation  from  the  government  has 
been  dismissed  by  the  court  of  claims  can  not  avail  himself  of  the  objection, 
first  raised  on  appeal,  to  the  absence  of  any  pleading  setting  up  as  a  counter- 
claim or  set-off  the  difference  between  the  cost  of  the  service  under  a  reletting 
and  the  entire  contract  price  for  the  full  term  under  his  contract.^** 

13.    Instructions — b.    Objections  Must  Be  Made  Below. — See  note  65. 

d.  Form  and  Sufficiency  of  Exceptions  and  Objections. — See  note  71. 
Where  Series  of  Propositions  Embodied  in  Instructions. — See  note  81. 

e.  Time  for  Excepting. — See  note  88. 


86-72.  Failure  to  except  to  remarks  by 
the  court  regarded  as  prejudicial  is  not  ex- 
cused because  of  the  belief  of  counsel  that 
to  make  objection  would  make  a  bad 
matter  worse.  Judgment  (1906)  87  P.  311, 
17  Okl.  344,  affirmed.  Drumm-Flato 
Comm.  Co.  V.  Edmission,  208  U.  S.  534,  52 
L.  Ed.  606,  28  S.  Ct.  367. 

87-79.  Time  for  perfecting  exceptions. 
— The  objection  that  possession  and  work- 
ing of  mining  claims  in  the  Philippine  Is- 
lands for  the  time  required  under  the  act 
of  July  1,  1902.  §  45,  to  establish  a  right  to 
patent,  will  not  support  a  suit  to  enjoin 
setting  up  title  or  interfering  with  the 
same,  comes  too  late  after  a  trial  upon  the 
inerits.  Reavis  v.  Fianza,  215  U.  S.  16,  54 
L.  Ed.  72,  30  S.  Ct.  1. 

88-89.  An  objection  to  the  form  of  rem- 
edy comes  too  late  to  be  available  in  an 
appellate  court  when  first  made  on  a  mo- 
tion for  a  new  trial  after  the  verdict.  Judg- 
ment (1906),  146  F.  375,  76  C.  C.  A.  647, 
affirmed.  American  Tobacco  Co.  z'.  Werck- 
meister,  207  U.  S.  284,  52  L.  Ed.  280,  28 
S.  Ct.  72. 

89-91a.  Want  of  hearing. — Gonzales  v. 
Buist,  224  U.  S.  126,  56  L.  Ed.  693,  32  S.  Ct. 
463. 

90-5a.  Equitable  defenses. — Lutcher, 
etc.,  Lumber  Co.  v.  Knight,  217  U.  S.  257, 
54  L.  Ed.  757,  30  S.  Ct.  505,  following  Bur- 
bank  V.  Bigelow,  154  U.  S.  558,  19  L.  Ed. 
51,  23  L.  Ed.  542,  14  S.  Ct.   1163. 

90-5b.  Failure  to  plea  counterclaim  or 
set-off.— Huse  v.  United  States,  222  U.  S. 
496,  56  L.  Ed.  285,  32  S.  Ct.  119,  affirming 
judgment  44  Ct.  CI.  19. 


98-65.     Objections  must  be  made  below. 

— Objections  to  the  rulings  of  the  court  on 
instructions  must  be  taken  in  the  trial 
court.  Dotson  v.  Milliken,  209  U.  S.  237,. 
52  L.  Ed.  768,  28  S.  Ct.  489. 

99-71.  Necessity  of  specific  exception. — 
An  objection  that  an  instruction  justify- 
ing a  recovery  of  the  agreed  commission 
by  a  broker  employed  to  find  a  purchaser 
for  the  whole,  or  any  considerable  part,  of 
a  tract  of  coal  lands,  who  had  found  a  pur- 
chaser for  10,000  acres,  where  the  sale 
failed  through  the  fault  of  the  owner,  did 
not  require  or  permit  the  jury  to  find  that 
any  particular  land  was  agreed  upon,  is 
not  available  on  appeal,  especially  upon  a 
mere  general  exception,  the  point  not  hav- 
ing been  raised  in  the  trial  court.  Judg- 
ment (1906)  27  App.  D.  C.  500,  affirmed. 
Dotson  V.  Milliken.  209  U.  S.  237,  52  L.  Ed. 
768,  28  S.   Ct.  489. 

101-81.  An  exception  taken  as  an  en- 
tirety to  the  ruling  of  the  court  upon  sev- 
eral requested  instructions  is  not  sufficient 
to  raise  the  correctness  of  the  ruling.  Mc- 
Cabe,  etc.,  Constr.  Co.  v.  Wilson,  209  U. 
S.  275,  52  L.  Ed.  788,  28   S.   Ct.  558. 

103-88.  Rule  58  of  the  circuit  court  for 
the  district  of  Montana,  which  permits  ex- 
ceptions to  the  charge  of  the  court  or  to 
the  refusal  of  instructions  requested  to  be 
taken  after  the  jury  have  retired,  but,  if 
practicable,  before  the  verdict  has  been 
returned,  was  intended  to  permit  such 
course  to  be  followed,  where  it  would  be 
in  the  interest  of  justice  by  avoiding  the 
confusing  of  the  jury  or  where  further  in- 
structions   were    given  in    the  absence    of 


126 


Vol.  II. 


APPEAL  AND  ERROR. 


105-112 


17.  Jurisdiction  and  Venue; — a.    In  General. — See  note  3. 

b.    Equity  Jurisdiction — (2)    Adequate  Remedy  at  Lazv. — See  note  16. 

18.  Parties — a.    For  Want  of  Proper  Parties. — See  note  25. 
b.    For  Misjoinder  of  Parties. — See  note  34. 


counsel,  and  not  to  permit  exceptions  gen- 
erally to  be  taken  after  the  close  of  the 
trial  contrary  to  the  settled  rule  of  the  fed- 
eral courts;  and  where  the  judge,  after  in- 
structing the  jury  but  before  sending  them 
out,  retired  to  his  room  with  counsel  and 
there  heard  and  allowed  the  exceptions, 
the  rule  does  not  require  him  to  afterward 
entertain  or  allow  further  exceptions. 
(C.  C.  A.  1906),  Montana  Min.  Co.  v.  St. 
Louis  Min.  &  Mill.  Co.,  147  F.  897,  78  C. 
C.  A.  33,  judgment  reversed.  Montana 
Min.  Co.  V.  St.  Louis  Min.,  etc.,  Co.,  204  U. 
S.  204,  51  L.  Ed.  441,  27  S.  Ct.  254. 

105-3.  Jurisdiction  and  venue  in  general. 
— It  is  peculiarly  the  duty  of  the  federal 
supreme  court  to  see  to  it  that  the  subor- 
dinate courts  of  the  United  States  do  not 
usurp  authority  not  affirmatively  given  to 
them.  Accordingly,  the  failure  of  the  par- 
ties to  object  to  the  court's  jurisdiction 
can  never  preclude  the  consideration  of 
this  question  at  any  stage  of  the  cause. 
The  objection  can  be  raised  in  the  federal 
supreme  court;  if  not  by  the  parties,  then 
by  the  court  itself.  Chicago,  etc.,  R.  Co. 
V.  Willard,  220  U.  S.  413,  55  L.  Ed.  521.  31 
S.  Ct.  460.  Opinion  by  Harlan,  J.,  in  which 
the  question  is  reviewed  at  great  length 
and  many  authorities  cited. 

"It  is  firmly  established  by  many  deci- 
sions that  in  every  case  pending  in  an  ap- 
pellate federal  court  of  the  United  States 
the  inquiry  must  always  be  whether,  under 
the  constitution  and  laws  of  the  United 
States,  that  court  or  the  court  of  original 
jurisdiction  could  take  cognizance  of  the 
case.  The  leading  authority  on  the  sub- 
ject is  Mansfield,  etc.,  R.  Co.  v.  Swan,  111 
U.  S.  379,  382,  28  L.  Ed.  462,  4  S.  Ct.  510, 
where  the  cases  are  fully  reviewed."  Chi- 
cago, etc.,  R.  Co.  V.  Willard,  220  U.  S.  413, 
419,  55  L.  Ed.  521,  31  S.  Ct.  460. 

The  federal  supreme  court  will  inquire 
whether  it  has  jurisdiction  of  the  writ  of 
error  before  it,  although  counsel  do  not 
raise  that  question.  Fore  River,  etc.,  Co. 
V.  Hagg,  219  U.  S.  175,  55  L.  Ed.  163,  31  S. 
Ct.  185;  Mansfield,  etc,  R.  Co.  v.  Swan,  111 
U.  S.  379,  28  L.  Ed.  462,  4  S.  Ct.  510. 

An  appellate  federal  court  can  and 
should  consider  on  its  own  motion  the 
question  of  the  jurisdiction  of  a  federal 
circuit  court  to  which  a  cause  has  been 
removed  from  the  state  court,  as  present- 
ing a  separable  controversy,  although  the 
plaintiff  withdrew  and  did  not  renew  his 
motion  to  remand  to  the  state  court,  but 
went  to  trial  in  the  federal  court  without 
objection.  Chicago,  etc.,  R.  Co.  v.  Willard, 
220  U.  S.  413,  55  L.  Ed.  521,  31  S.  Ct.  460, 


affirming  judgment  Willard  v.  Chicago, 
B.  &  Q.  R.  Co.  (1908)  165  F.  181,  91  C.  C 
A.  215. 

109-16.  The  objection  that  there  was  an 
adequate  remedy  at  law  where  a  common 
carrier  refused  to  accept  interstate  ship- 
ments of  intoxicating  liquors  destined  to 
local-opticn  or  "dry"  points  in  another 
state,  and  announces  its  purpose  to  persist 
in  such  refusals,  comes  too  late,  if  ever 
available,  when  first  made  on  appeal. 
Louisville,  etc.,  R.  Co.  v.  Cook  Brew.  Co., 
223  U.  S.  70,  56  L.  Ed.  355,  32  S.  Ct.  189. 

110-25.  For  want  of  proper  parties. — 
An  objection  that  the  vendee  in  a  contract 
for  the  sale  of  real  property  is  not  made 
a  party  to  a  suit  for  specific  performance 
by  a  person  to  whom  she  afterwards  con- 
tracted to  sell  the  land  is  not  available  to 
defeat  the  suit,  especially  when  first  raised 
on  appeal,  since  such  vendee  had  no  real 
interest  in  the  suit,  and  the  vendor  was  put 
in  no  danger  by  the  decree.  Lenman  v. 
Jones.  222  U.  S.  51,  56  L.  Ed.  89.  32  S.  Ct. 
18,  affirming  decree_(1909)  33  App.  D.  C.  7. 

112-34.  An  objection  to  joining  a  prose- 
cuting attorney  and  the  secretary  of  state 
as  parties  defendant  in  the  same  bill  will 
not  be  considered  in  an  appellate  court, 
where  no  such  objection  was  specially 
taken  below.  Herndon  v.  Chicago,  etc.,  R. 
Co.,  218  U.  S.  135,  54  L.  Ed.  970,  30  S.  Ct. 
633;  Roach  v.  Atchison,  etc.,  R.  Co.,  218 
U.  S.  159.  54  L.  Ed.  978,  30  S.  Ct.  639.  Af- 
firming decree  Chicago,  R.  I.  &  P.  Ry.  Co. 
V.  Swanger  (C.  C.  1908),  157  F.  783. 

"It  is  asserted  that  the  bill  is  multifari- 
ous, and  that  there  is  no  right  to  join  the 
defendants,  the  prosecuting  attorney  and 
secretary  of  state  in  the  same  bill.  But  no 
objection  to  such  joinder  of  the  parties 
was  specially  taken,  and  it  is  well  settled 
that  an  objection  of  this  character  must  be 
promptly  made.  The  proper  way  to  raise 
such  question  is  by  special  demurrer 
specifically  directed  to  the  objection. 
Street  Fed.  Equity  Practice,  vol.  1,  §  936. 
It  is  true  that  a  court  may  itself  take  the 
objection  in  extreme  cases,  when  that 
course  is  essential  to  the  necessary  and 
proper  administration  of  justice.  But,  as 
laid  down  in  Oliver  v.  Piatt.  3  How.  333, 
412,  11  L.  Ed.  622,  Mr.  Justice  Story, 
speaking  for  the  court,  says,  'if  the  court 
can  get  to  a  final  decree  without  serious 
embarrassment,  it  will  do  so,'  and,  contin- 
ues the  learned  justice:  'fortiori,  an  appel- 
late court  would  scarcely  entertain  the  ob- 
jection, if  it  was  not  forced  upon  it  by  a 
moral  necessity.'"  Herndon  v.  Chica.go, 
etc.,  R.  Co.,  218  U.  S.  135,  154,  54  L.  Ed. 
970.  30  S.  Ct.  633. 


127 


114-133  APPEAL  AND  ERROR.  Vol.  11. 

19.  Pleadings — b.  Plea  or  Replication. — Sufficiency  of  Denial  in  Code 
Pleading. — The  objection  that  an  answer  alleging  that  defendants,  who  were 
sureties  on  the  official  bond  of  a  receiver  of  public  moneys,  had  not  and  could 
not  obtain  "sufficient  information"  upon  which  to  base  a  belief  as  to  the  default 
of  their  principal,  set  up  in  the  complaint,  and  that  they  therefore  denied  the 
same,  is  not  a  sufficient  denial,  under  Colo.  Code,  §  56,  requiring  such  a  denial 
to  be  based  upon  a  disavowal  of  "sufficient  knowledge  or  information,"  can  not 
be  first  raised  in  an  appellate  court.^^^ 

30.    CrimixxVl  Proceedings. — See  note  98. 

Allowing  Indictment  to  Go  to  Jury  Room. — An  objection  that  the  court 
erred  in  permitting  an  indictment  to  go  to  the  jury  and  be  taken  with  them  into 
the  jury  room  comes  too  late  if  it  is  not  taken  until  a  motion  is  made  for  a 
new  trial. ^''^ 

The  objection  that  there  was  no  venire  facias  summoning  the  grand 
jury  is  not  available  on  a  writ  of  error  to  review  a  conviction,  where  there  is 
nothing  in  the  record  to  show  that  this  objection,  if  tenable  at  all,  v/as  taken 
before  plea,  or,  indeed,  at  any  time  during  the  trial. ^^^ 

Form  and  Sufficiency  of  Objections  and  Exceptions. — In  criminal  cases 
courts  are  ifot  inclined  to  be  as  exacting,  with  reference  to  the  specific  character 
of  the  objection  made,  as  in  civil  cases.  They  will,  in  the  exercise  of  a  sound 
discretion,  sometimes  notice  error  in  the  trial  of  a  criminal  case,  although  the 
question  was  not  properly  raised  at  the  trial  by  objection  and  exception. '^^'^ 

IX.    Transfer  of  Cause. 

C.  Prayer  for  an  Allowance  of  Appeal — 2.  The  Petition  or  Applica- 
tion— d.  Amendiiicnt  of  Petition. — The  circuit  court  of  appeals  is  justified  in 
allowing  an  amendment  to  correct  a  petition  for  a  writ  of  error  which,  owing 
to  the  illness  of  counsel,  does  not  set  forth  accurately  the  parties  plaintiff.^^* 

D.  Limitations  upon  Time  for  Taking — 2.  In  Particular  Proceedings 
AND  Courts — h.  In  Criminal  Cases. — The  writ  of  error  allowed  by  and  on  be- 
half of  the  United  States  in  criminal  cases  must  be  taken  within  thirty  days 
after  decision  or  judgment  has  been  rendered.  Act  March  2,  1907,  ch.  2564,  34 
Stat,  at  L.  1246.9"^^ 

3.  \Yhen  Statute  Begins  to  Run. — It  seems  that  the  limitation  as  to  time 
for  taking  an  appeal  does  not  necessarily  date  from  the  original  decree  entered 
in  the  cause,  but  if  there  are  intervening  proceedings  and  a  supplemental  decree 
is  rendered,  the  running  of  the  statute  may  be  suspended  and  the  time  will  be 
computed  from  the  second  decree. ^^ 

114-53a.  Sufficiency  of  denial  in  Code  217,"  reaches  the  question  whether  the  re- 
pleading.—Campbell  V.  United  States.  224  lation  of  the  juror  to  the  government,  as 
U.  S.  99,  56  L.  Ed.  684,  32  S.  Ct.  398.  appears  from  his  voir  dire,  disqualifies  him 

118-98.     Criminal     proceedings Objec-  ''s  a  juror  on  the  trial  of  an  indictment  for 

tions   to   the    sufficiencj^   of   an   indictment  ^  conspiracy  to  defraud  the  United  States, 

can  not  first  be  raised  upon  a  writ  of  error.  Judgment  (1907)  30  App.  D.  C.  1,  reversed. 

Pickett  V.  United  States,  216  U.  S.  456    54  Crawford  v.  United   States,  212  U.   S.  183, 

L.   Ed.  566,  30  S.   Ct.  265.  '  53  L.  Ed.  465.  29  S.  Ct.  260. 

119-99a.   Allowing   indictment   to    go    to  ^  123-33a.      Illness      of      counsel.— Green 

jury    room.— Hohngren   z:    United    States  County  r.   Thomas,  211  U.  S.  598,  53  L.  Ed. 

217   U.   S.  509,  54  L.  Ed.  861,  30  S.  Ct.  588.        ^'^hol'P.    ?}■ -I^a   o.   .       ■  •     •      i 

1 1 Q  QQK     TVT^  .-       r„  •         Ti  132-97a.  United  States  m  criminal  cases. 

TTnit;?q;..       ooTtt    c   ^0^:^?°^^         '''  "^est,  etc..  R.  Co.  v.  Pittsburgh  Constr. 

?2  S    Ct Osi                                 '                              '  ^°-'  219  U.  S.  92,  55   L.   Ed.  107!  31  S.  Ct. 

"'/■■"_  196.     See  ante,  "Statutes  Allowing  United 

119-99C.     Form  and  sufficiency  of  objec-  States  an  Appeal  in  Criminal  Cases,"  VI, 

tions  and  exceptions.— An  objection   to  a  A,  5.  k.  (2),  (b). 

juror  as  a  "salaried  officer  of  the  govern-  133-ia.   When   statute   begins   to    run.— 

ment,    which    is    one    of    the    exemptions  Cherokee    Nation   v.   Whitmire,   223   U.    S. 

mentioned  in  Code  of  Laws  D.   C.  1901,  §  108,  56  L.  Ed.  370.  32  S.  Ct.  200. 

128 


\ol.  II. 


APPEAL  AND  ERROR. 


135-190 


4.    Postponement,  Suspension  or  Interruption — a.    Ulien  Is  an  Appeal 
Taken. — See  note  13. 
b.    Motion  for  AVtc  Trial  or  Petition  for  Rehearing. — See  note  25. 

E.  The  Writ  of  Error — 6.  Amendment  op  Writ — c.  Amendable  Defects 
—  (6)    Defects  z^^itli  Respect  to  the  Parties. — See  note  33. 

F.  The  Citation — 3.  Necessity  for — b.  Appeals  Allowed  in  Open  Court— 
(1)    In  General. — See  note  62. 

G.  Appeal  Bond — 2.    Necessity  for — a.    In  General. — See  note  88. 

4.  Form  and  Sufficiency — g.  Dismissal. — By  rule  of  court  in  the  District 
of  Columbia  an  appeal  will  not  be  dismissed  for  defects  in  the  form  of  the 
bond  unless  made  within  twenty  days  next  after  the  receipt  of  the  transcript  or 
a  satisfactory  excuse  is  given  for  the  delay. ^^^ 

8.    Obviating  Defects  in  Bonds  and  New  Bonds. — See  note  83.      • 

12.  Actions  on  Bonds — a.  Liability  of  Sureties  on  Appeal  Bonds — (4)  Lia- 
bility Fixed  by  Affirmance  of  Judgment. — See  note  22. 

(5)  Right  of  Sureties  to  Reimbursement. — The  surety  on  an  appeal  bond 
may  recover  from  its  principals  the  amount  of  the  judgment  which  it  paid  after 
an  affirmance  on  the  appeal  to  a  territorial  supreme  court,  although,  when  mak- 
ing such  payment,  it  took  from  the  judgment  creditor  a  bond  with  collateral 
security  conditioned   for  the   reimbursement  oi  the  money  so  paid  in  case  the 


135-13.  When  is  an  appeal  taken. — A  writ 
of  error  is  not  brought  in  the  legal  mean- 
ing of  the  tenn  until  it  is  filed  in  the  court 
which  rendered  the  judgment.  Judgment 
(1907)  152  F.  925,  82  C.  C.  A.  73,  affirmed. 
Old  Nick  Williams  Co.  z\  United  States, 
215  U.  S.  541,  54  L.  Ed.  .31S,  30  S.  Ct.  221. 

137-25.  Motion  for  new  trial  or  petition 
for  rehearing. — A  judgment  of  the  court 
of  claims  is  not  final,  so  as  to  set  in  motion 
the  time  for  taking  an  appeal  therefrom, 
until  a  motion  for  a  new  trial,  if  enter- 
tained by  the  court  has  been  disposed  of. 
United  States  :■.  Ellicott,  223  U.  S.  524,  56 
L.  Ed.  535.  32  S.  Ct.  334. 

151-33.  Defects  with  respect  to  parties. 
— The  circuit  court  of  appeals  is  justified 
in  allowing  an  amendment  to  correct  a 
writ  of  error  which,  owing  to  the  illness 
of  counsel,  does  not  set  forth  accurately' 
the  parties  plaintiff,  and  in  denying  a 
motion  to  dismiss  the  writ,  founded  upon 
such  mistake.  Judgment  (C.  C.  A.  1908) 
Thomas  z'.  Green  County,  159  F.  339,  af- 
firmed. Green  County  z'.  Thomas,  211  U. 
S.  598.  53  L.  Ed.  343.  29  S.  Ct.  168. 

156-62.  Appeals  taken  in  open  court  needs 
no  citation. — When  an  appeal  is  taken  in 
open  court  it  does  not  need  the  formalities 
of  ancient  law  to  indicate  that  it  is  taken 
against  all  adverse  interests.  All  parties 
are  present  in  fact  or  in  law,  and  they  have 
notice  then  and  there.  No  citation  is  re- 
quired. Railroad  Co.  z:  Blair,  100  U.  S. 
661.  25  L.  Ed.  587:  Brockett  f.  Brockett, 
^  How.  238.  11  L.  Ed.  251;  Taylor  z:  Lees- 
nitzer,  220  U.  S.  90,  93,  55  L.  Ed.  382,  31  S. 
Ct.  371. 

174-88.  Rule  in  District  of  Columbia. — 
The  requirement  of  a  bond  by  a  rule  of  the 
court  of  appeals  of  the  district  does  not 
go    to    the    essence    of    the    appeal,    as    is 

12    U    S    Enc— 9  129 


shown  by  the  condition  in  the  rule  that  the 
motion  to  dismiss  for  want  of  one  must 
be  "made  within  the  first  twenty  days  next 
after  the  receipt  of  the  transcript  in  this 
court."  Taylor  v.  Leesnitzer,  220  U.  S.  90, 
93,  55  L.  Ed.  382,  31  S.  Ct.  371. 

181-51a.  Time  for  making  motion  to  dis- 
miss.— Taylor  z:  Leesnitzer,  220  U.  S.  90, 
55  L.  Ed.  382,  31  S.  Ct.  371,  reversing  31 
App.  D.  C.  92. 

The  omission  of  one  of  the  adverse  par- 
ties from  the  supersedeas  bond  does  not 
justify  the  court  of  appeals  of  the  District 
of  Columbia  in  dismissing  on  motion  an 
appeal  to  that  court,  where  such  motion 
was  not  made  within  the  time  prescribed 
by  a  court  rule  for  moving  to  dismiss  for 
want  of  a  ^ond,  and  then  was  not  based 
upon  the  defect  in  the  bond,  but  upon  a 
defect  of  parties  to  the  appeal,  which  the 
bond  is  supp.osed  to  disclose,  but  which 
could  not  in  fact  exist,  because  the  appeal 
was  taken  in  open  court.  Taylor  Zy\  Lees- 
nitzer, 220  U.  S.  90,  55  L.  Ed.  382,  31  S.  Ct. 
371,  reversing  decree  (1908)  31  App.  D. 
C.  92. 

185-83.  Obviating  defects  in  bonds  and 
new  bonds. — Although  the  time  has  gone 
bj-  when  an  appeal  may  be  dismissed  for 
nonjoinder  of  an  obligee  to  an  appeal 
bond,  yet  if  all  the  parties  are  before  the 
higher  court  leave  will  generally  be  given 
to  file  an  additional  bond  if  an  amendment 
is  desired.  Taylor  :•.  Leesnitzer,  220  U.  S. 
90,  55   L.    Ed.  382,   31    S.   Ct.  371. 

190-22.  Liability  of  sureties  on  super- 
sedeas bond  is  fixed  by  the  affirmance  of 
the  judgment;  the  issuance  of  an  execution 
is  unnecessary.  United  States  Fidelity, 
etc..  Co.  V.  Sandoval.  223  U.  S.  227,  56  L. 
Ed.  415.  32  S.  Ct.  298. 


190-243 


APPEAL  AND  ERROR. 


Vol.  II. 


judgment  should  be  reversed  on  a  proposed  further  appeal  to  the  federal  su- 
preme court,  since  the  surety,  by  so  acting,  was  not  speculating  out  of  its  prin- 
cipals, but  was  benefiting  them  by  acquiring  security  to  which  they  could  be 
subrogated  in  case  of  a  reversal  of  the  judgment.^^^  The  payment  of  the  judg- 
ment in  good  faith  by  the  surety  on  an  appeal  bond,  after  an  affirmance  on  the 
appeal  to  a  territorial  supreme  court,  and  after  receiving  notice  from  the  gov- 
ernor that  unless  the  judgment  was  paid  the  surety  would  forfeit  its  right  to 
do  business  in  the  territory,  can  not  be  said  to  have  been  made  voluntarily  or 
negligently,  so  as  to  defeat  the  surety's  right  to  reimbursement  from  its  prin- 
cipals, although  execution  had  not  been  issued  on  the  judgment,  and  the  gov- 
ernor may  not  have  had  power  to  carry  out  his  threat.^^b 

H.  The  Record  or  Transcript — \.  Errors  Not  Apparent  on  Face  oe 
Reco«d  and  Matters  to  Be  Shown  by  Record — a.   In  General. — See  note  99. 

h.  Evidence — (4)  Witnesses. — An  assignment  of  error  to  refusal  to  allow  a 
witness  to  testify  can  not  be  considered  on  appeal  where  it  does  not  appear 
what  testimony  the  witness  was  expected  to  give  or  that  he  was  qualified  to  give 
any.'^^^ 

j.    Papers  and  Documentary  Evidence — (1)    In  General. — See  note  76. 

7.  Filing — c.  Time  of  Filing — (7)  Docketing  and  Dismissing  Causes — aa. 
The  Rules  of  Court  Stated. — See  note  79. 

8.  AuthExNTication  and  Certification — a.  Necessity  for. — Authentication 
of  Amendments  to  Record. — Where  a  court  is  correcting  a  record  before  it 
as  an  appellate  tribunal,  questions  as  to  the  proper  authentication  of  amend- 
ments to  the  record  are  matters  within  its  discretion. 22a 

12.    Impeachment  or  Contradiction  of  Record. — The  record  on  appeal  im- 


190-22a.  Right  of  sureties  to  reimburse- 
ment.— United  States  Fidelity,  etc.,  Co.  v. 
Sandoval,  223  U.  S.  227,  56  L.  Ed.  415,  32 
8.  Ct.  298. 

190-22b.  Payment  of  judgment  in  good 
faith. — United  States  Fidelity,  etc.,  Co.  v. 
Sandoval,  223  U.  S.  227,  56  L.  Ed.  415,  32 
S.  Ct.  298. 

205-99.  A  question  of  estoppel  by  judg- 
ment can  not  be  considered  in  the  absence 
of  the  record  on  which  such  estoppel  is 
predicated.  Judgment,  United  States 
Ass'n  V.  Pacific  Imp.  Co.  (1902)  69  P.  1064. 
139  Cal.  370,  affirmed.  United  States  Land 
Ass'n  V.  Abrahams.  208  U.  *S.  614,  52  L. 
Ed.  645,  28  S.  Ct.  569. 

219-70a.  Refusal  to  allow  witness  to  tes- 
tify.— Herencia  v.  Guzman,  219  U.  S.  44,  55 
L.  Ed.  81.  31  S.  Ct.  135. 

The  refusal  to  permit  a  physician  called 
as  an  expert  to  testify  in  a  negligence  ac- 
tion is  not  ground  for  reversal,  where  the 
record  does  not  show  what  testimony  the 
witness  was  expected  to  give,  or  that  he 
was  qualified  to  give  any.  Herencia  v. 
Guzman,  219  U.  S.  44,  55  L-  Ed.  81,  31  S. 
Ct.    135. 

219-76.  Papers  and  documentary  evi- 
dence in  general. — On  appeal  in  an  action 
involving  title  to  realty,  a  deed  introduced 
in  evidence  below,  but  not  appearing  in  the 
record,  or  having  its  contents  shown 
therein,  can  not  be  considered  as  having 
any     bearing    on     the    case.      Judgment. 


United  Land  Ass'n  v.  Pacific  Imp.  Co. 
(1902)  69  P.  1064,  139  Cal.  370,  affirmed. 
United  States  Land  Ass'n  v.  Abrahams, 
208  U.   S.  614.  52  L.   Ed.  645,  28  S.   Ct.  569. 

237-79.  Failure  to  file  record  in  time. — 
An  appeal  to  the  federal  supreme  court, 
allowed  on  June  12,  1906,  to  review  a  judg- 
ment of  the  supreme  court  of  the  terri- 
tory of  Oklahoma,  rendered  on  September 
7,  1905,  will  not  be  dismissed  because  not 
docketed  until  August  10,  1906,  for  the  rea- 
son that  the  counsel  who  originally  for- 
warded the  record  were  not  attorneys  of 
the  federal  supreme  court,  and  hence  not 
qualified  to  enter  their  appearance,  where 
no  motion  to  docket  and  dismiss  under 
rule  9  was  made.  Judgment  (1906)  85  P. 
459,  16  Okl.  131,  affirmed.  Southern  Pine 
Lumber  Co.  v.  Ward,  208  U.  S.  126,  52  L. 
Ed.   420,  28   S.   Ct.  239. 

243-22a.  Authentication  of  amendments 
to  record. — Dowdell  v.  United  States,  221 
U.  S.  325,  55  L.  Ed.  753,  31   S.   Ct.  590. 

Certificates  of  the  judge  and  the  clerk 
of  the  court  below,  returned  to  the  su- 
preme court  of  the  Philippine  Islands  in 
a  proceeding  to  supply  deficiencies  in  the 
record  in  a  criminal  cause,  could  be  ac- 
cepted by  that  court,  so  far  as  any  ques- 
tions under  the  federal  constitution  and 
statutes  are  concerned,  although  they  were 
not  under  oath,  and  although  the  court's 
seal  was  not  attached  to  the  clerk's  cer- 
tificate. Dowdell  V.  United  States,  221  U. 
S.  325,  55  L.  Ed.  753,  31  S.  Ct.  590. 


130 


Vol.  11. 


APPEAL  AND  ERROR. 


255-264 


ports  verity,  and  can  not  be  contradicted  by  an  affidavit  which  counsel  files  in 
the  cause. ^^ 

X.    Assignment  of  Errors. 

C.    Necessity  for — 1.    In  General. — See  note  54. 

Qualifications  of  General  Rule. — See  note  58. 


255-3a.  Record  can  not  be  contradicted 
by  affidavit. — Johnson  z\  United  States, 
225  U.  S.  405,  56  L.  Ed.  1142,  32  S.  Ct.  748. 

263-54.  Necessity  for  assignment  of 
errors. — Errors  not  assigned  will  not  be 
considered  by  the  federal  supreme  court 
on  writ  of  error.  Paraiso  v.  United  States, 
207  U.  S.  368,  52  L.  Ed.  249,  28  S.  Ct.  127. 

Where  an  attachment  was  based  on  two 
separate  and  distinct  grounds,  on  each  of 
which  issue  was  taken,  and  a  special  find- 
ing was  made  in  favor  of  plaintiff,  it  is  im- 
material that  error  may  have  been  com- 
mitted in  the  instructions  as  to  one,  there 
being  no  error  assigned  as  to  the  other. 
Holloway  v.  Dunham,  170  U.  S.  615,  42  L. 
Ed.  1165,  18  S.  Ct.  784. 

Sections  997,  1012,  Rev.  Stat.,  require  the 
transcript  from  the  circuit  court  to  be 
filed  with  an  assignment  of  errors,  and 
the  thirty-fifth  rule  of  the  federal  supreme 
court  prescribes  the  character  of  such  as- 
signments, and  "that  no  writ  of  error  or 
appeal  shall  be  allowed  until  such  assign- 
ment of  errors  shall  have  been  filed, 
*  *  *"  and  that  "errors  not  assigned  ac- 
cording to  this  rule  will  be  disregarded, 
but  the  court,  at  its  option,  may  notice 
a  plain  error  not  assigned."  This  rule  re- 
fers in  terms  only  to  writs  of  error  and 
appeals  under  §  5  of  the  act  of  March  3, 
1891,  but  it  is,  in  efifect,  extended  to  every 
writ  of  error  or  appeal  to  or  from  any 
court  by  rule  21,  which  requires  that  the 
brief  shall  set  out  "a  specification  of  the 
errors  involved."  This  "specification  of 
error"  must  conform  to  rule  35  in  par- 
ticularity. Thus  the  fourth  paragraph  of 
rule  21  provides:  "When  there  is  no  as- 
signment of  errors,  as  required  by  §  997, 
Rev.  Stat.,  counsel  will  not  be  heard,  except 
at  the  request  of  the  court;  and  errors  not 
specified  according  to  this  rule  will  be 
disregarded;  but  the  court,  at  its  option, 
may  notice  a  plain  error  not  assigned  or 
specified."  The  court  has,  however,  not 
regarded  itself  as  under  any  absolute 
obligation  to  dismiss  a  writ  of  error  or 
appeal  because  of  the  nonassignment  of 
errors  as  required  §§  997,  1012.  Rev.  Stat., 
having,  by  its  rules,  reserved  the  option 
to  notice  a  plain  error  whether  assigned 
or  not.  Columbia  Heights  Realty  Co.  v. 
Rudolph,  217  U.  S.  547.^551,  54  L.  Ed.  877, 
30  S.   Ct.   581. 

The  specification  of  errors  in  appel- 
lant's brief  on  appeal  from  the  court  of 
appeals  of  the  District  of  Columbia  does 
not  satisfy  the  requirements  of  Rev.  St., 
§§  997,  1012  (U.  S.  Comp.  St.  1901,  pp.  712, 
716),  and  supreme  court  rule  35  (29  Sup. 


Ct.  xxii),  that  an  assignment  of  errors  be 
filed  with  the  transcript  of  record. 
Briscoe  v.  Rudolph,  221  U.  S.  547,  55  L. 
Ed.  848.  31  S.  Ct.  679,  affirming  decree 
(1908),  Same  v.  MacFarland,  32  App.  D. 
C.   167. 

264-58.  Plain  errors  noticed  without  as- 
signment.— "It  is  admitted,  as  we  have 
seen,  that  the  questions  presented  by  the 
third  and  fourth  assignments  of  error 
were  not  made  in  the  courts  below,  but 
a  consideration  of  them  is  invoked  under 
Rule  35,  which  provides  that  this  court, 
'at  its  option,  may  notice  a  plain  error  not 
assigned.'  It  is  objected  on  the  other  side 
that  Paraiso  v.  United  States,  207  U.  S. 
368,  52  E.  Ed.  249.  28  S.  Ct.  127,  stands 
in  the  way.  But  the  rule  is  not  altogether 
controlled  by  precedent.  It  confers  a  dis- 
cretion that  may  be  exercised  at  any  time, 
no  matter  what  may  have  been  done  at 
some  other  time.  It  is  true  we  declined 
to  exercise  it  in  Paraiso  v.  United  States, 
207  U.  S.  368,  52  L-  Ed.  249,  28  S.  Ct.  127. 
but  we  exercised  it  in  Wiborg  v.  United 
States.  163  U.  S.  632,  658,  41  L.  Ed.  289, 
16  S.  Ct.  1127,  Clyatt  v.  United  States,  197 
U.  S.  207,  221,  49  L.  Ed.  726,  25  S.  Ct.  204, 
and  Crawford  v.  United  States,  212  U.  S. 
183.  53  L.  Ed.  465,  29  S.  Ct.  260.  It  may 
be  said,  however,  that  Paraiso  f.  United 
States  is  more  directly  applicable,  as  it 
was  concerned  with  the  same  kind  of  a 
crime  as  that  in  the  case  at  bar,  and  that 
it  was  contended  there  as  here  that  the 
amount  of  fine  and  imprisonment  im- 
posed inflicted  a  cruel  and  unusual  punish- 
ment. It  may  be  that  we  were  not  suffi- 
ciently impressed  with  the  importance  of 
those  contentions  or  saw,  in  the  circum- 
stances of  the  case,  no  reason  to  exercise 
our  right  of  review  under  rule  35.  As  we 
have  already  said,  the  rule  is  not  a  rigid 
one,  and  we  have  less  reluctance  to  dis- 
regard prior  examples  in  criminal  cases 
than  in  civil  cases,  and  less  reluctance  to 
act  under  it  when  rights  are  asserted 
which  are  of  such  high  character  as  to 
find  expression  and  sanction  in  the  con- 
stitution or  bill  of  rights.  And  such  rights 
are  asserted  in  this  case."  Weems  v. 
United  States,  217  U.  S.  349.  362.  54  L. 
Ed.  793.  30  S.   Ct.   544. 

Plain  error  noticed  without  assignment. 
— The  option  reserved  under  supreme 
court  rules  21  and  35,  of  examining  the 
transcript  of  record  on  writ  of  error  or 
appeal,  in  order  that  the  court  may  be 
advised  as  to  wliether  there  has  occurred 
any  "plain  error"  which  obviously  de- 
mands correction  will  be  exercised  where 


131 


265-278 


APPEAL  AND  ERROR. 


\o\.  II. 


E.  Form  and  Sufficiency — 1.  Ix  General. — An  assignment  of  error  must 
not  be  double."  ^^ 

XI.    Briefs. 

C.    Filing — 1.    Who  May  File. — See  note  33. 

XII.    Effect  of  Appeal. 

B.  On  Jurisdiction  of  Trial  Court — 1.  Ix  General. — The  court  of  claims 
did  not  lose  jurisdiction  of  a  case  upon  the  filing  of  an  application  for  an  appeal 
from  its  decree  to  the  federal  supreme  court,  so  as  to  preclude  it  from  allowing 
a  subsequent  motion  to  withdraw  the  application,  and  from  entertaining  a  mo- 
tion for  a  new  trial.-''-'' 

4.  Effect  on  Injunctions  below. — See  notes  64,  68. 


the  defendants  in  error  have  made  no  ob- 
jection to  the  failure  to  assign  error,  un- 
der Rev.  St.  U.  S.,  §§  997,  1012  (U.  S. 
Comp.  St.  1901,  pp.  712,  716),  but  have  sub- 
mitted the  case  upon  the  specifications  of 
error  in  the  brief  of  the  plaintiffs  in  error. 
Columbia  Heights  Realty  Co.  v.  Rudolph. 
217  U.  S.  547,  54  L.  Ed.  877,  30  S.  Ct.  581. 
affirming  judgment  in  Columbia  Heights 
Realty  Co.  z:  MacFarland  (1908).  31  App. 
D.  C.  112. 

Rule  in  District  of  Columbia. — Where 
an  appeal  was  taken  prior  to  the  warn- 
ing contained  in  Columbia  Heights  Realty 
Co.  V.  Rudolph,  217  U.  S.  547.  54  L.  Ed. 
877,  30  S.  Ct.  581.  that  specifications  of 
errors  in  appellant's  brief  on  appeal  from 
the  court  of  appeals  of  the  District  of  Co- 
lumbia would  not  satisfy  the  requirements 
of  Rev.  Stat.,  §§  997,  1012  (U.  S.  Comp. 
Stat.  1901,  pp.  712.  716),  and  supreme 
court  rule  35  (29  S.  Ct.  Rep.  XXH),  the 
court  noticed  the  error,  even  though  it 
was  not  "plain"  on  account  of  the  gravity 
of  the  question  and  in  view  of  the  prac- 
tice heretofore  prevailing  in  the  courts  of 
the  District  of  Columbia.  Briscoe  v. 
Rudolph.  221  U.  S.  547,  55  L.  Ed.  848,  31 
S.   Ct.   679.  _ 

Constitutional  question. — Questions  not 
raised  below,  respecting  the  denial  of 
rights  which  find  expression  and  sanction 
in  the  federal  constitution  and  the  Philip- 
pine Bill  of  Rights,  may  be  considered  by 
the  federal  supreme  court,  on  error  to  the 
supreme  court  of  the  Philippine  Islands, 
in  the  exercise  of  its  discretion,  under  su- 
preme court  rule  35,  to  notice  a  plain  error 
not  assigned.  Weems  v.  United  States, 
217  U.   S.  349,  54  L.   Ed.  793,  30  S.  Ct.  544. 

Custody  and  conduct  of  jury. — An  ob- 
jection first  made  on  a  motion  for  a  new 
trial  that  the  court  erred  in  permitting 
the  jurj^  to  take  into  the  jury  room  the 
indictment,  which  contained  an  indorse- 
ment of  a  conviction  of  the  accused  on  a 
coimt  thereof  at  a  former  trial,  will  not 
be  considered  by  the  federal  supreme 
court,  in  the  exercise  of  its  power  under 
supreme  court  rule  35,  to  notice  a  plain 
error  not  properly  reserved,  where  the 
record  contains  all  the  testimony,  and   it 


is  ample  to  sustain  the  conviction  without 
giving  weight  to  the  effect  of  the  indorse- 
ment, and  the  indorsement  itself  shows 
that  a  new  trial  was  granted  upon  the 
former  conviction,  which  is  quite  as  likely 
to  have  inlluenced  the  jury  favorably  to  the 
accused  as  was  the  fact  of  the  former  con- 
viction to  work  to  his  prejudice.  Holm- 
gren z:  United  States,  217  U.  S.  509,  54 
L.  Ed.  861,  30  S.  Ct.  588,  affirming  judg- 
ment  (1907).  156   F.  439,  84  C.  C.  A.  301. 

265-71a.  Duplicity.— Pickett  v.  United 
States,  216  U.  S.  456,  54  L.  Ed.  566,  30  S. 
Ct.  265. 

273-33.  Amicus  curiae  may  file  brief. — 
In  these  consolidated  cases,  tried  sepa- 
rately below,  the  department  of  justice 
asked  leave  to  intervene  on  behalf  of 
the  United  States  at  the  trial,  which  was 
permitted  in  one  case  and  denied  in  the 
other,  but  the  United  States  was  allowed 
to  be  heard  as  a  friend  of  the  court.  In 
the  supreme  court  the  attorney  general 
was  allowed  to  take  part  by  printed  brief 
and  oral  argument  as  a  friend  of  the  court. 
The  Employers'  Liability  Cases,  207  U. 
S.   463,   52    L.   Ed.   297,  28   S.    Ct.   141. 

277-58a.  Court  of  claims. — Cherokee  Na- 
tion r.  Whitmire,  223  U.  S.  108,  56  L.  Ed. 
370.   32   S.   Ct.  200. 

277-64.  Effect  of  appeals  on  injunctions 
below. — It  is  well  settled  that  the  force 
and  effect  of  a  decree  dismissing  a  bill 
and  discharging  an  injunction  is  neither 
suspended  or  annulled  as  a  mere  conse- 
quence of  an  appeal  to  the  federal  su- 
preme court,  even  if  a  supersedeas  is  al- 
lowed. jMerrimack  River  Sav.  Bank  v. 
Clay  Center,  219  U.  S.  527,  534,  55  L.  Ed. 
320.  31  S.  Ct.  295.  See  post,  INJUNC- 
TIONS. 

278-68.  The  federal  supreme  court,  by 
an  additional  rule  of  practice  in  equity, 
adopted  in  October  term,  1878,  declared 
that  "When  an  appeal  from  a  final  de- 
cree, in  an  equity  suit,  granting  or  dis- 
solving an  injunction,  is  allowed  by  a  jus- 
tice or  judge  who  took  part  in  the  decision 
of  the  cause,  he  inay,  in  his  discretion,  at 
the  time  of  such  allowance,  make  an  order 
suspending  or  modifying  the  injunction 
during  the  pendcncj'^   of  the   appeal   upon 


132 


Vol.  II. 


APPEAL  AXD  ERROR. 


292-295 


XIV.    Dismissal  and  Reinstatement. 

A.  Dismissal — 1.  Grounds  for  Dismissal, — a.  Xo  Actual  Controvcrsx  Ex- 
isting—  (  1  )    In   General. — See  note  51. 

Qualification  of  General  Rule. — Where,  however,  the  interests  to  be  passed 
upon  are  of  a  public  character  and  are  of  a  continuing  nature  so  that  they  may 
effect  future  controversies,  a  motion  to  dismiss  on  the  ground  that  there  is  no 
actual  controversy  will  be  denied. ^^^ 

(3)"  Specific  Applications  of  General  Rules — bb.  Compromise  or  Settlement 
of  Controversy — aaa.    Controversies  hetiveen  Private  Individuals. — See  note  61. 

cc.  Criminal  Prosecutions — aaa.  In  General. — Crime  Barred  by  Statute 
of  Limitations. — The  federal  supreme  court  has  no  jurisdiction  to  review  an 
order  of  a  federal  district  court,  permitting  the  entry  of  a  nolle  prosequi  to  an 
indictment  for  violating  Rev.  Stat.,  §  5480  (U.  S.  Comp.  St.  1901,  p.  3696),  pun- 
ishing the  sending  of  letters  through  the  mails  with  intent  to  defraud,  where 


such  terms  as  to  bond  or  otherwise  as  he 
may  consider  proper  for  the  security  of 
the  rights  of  the  opposite  party."  Rule 
93.  Obviously  this  may  include  a  con- 
tinuancy  of  an  injunction  which  would  be 
otherwise  vacated.  Merrimack  River  Sav. 
Bank  v.  Clay  Center.  219  U.  S.  527,  535, 
5.J  L.  Ed.  320.  31   S.  _Ct.  295. 

292-51.  Impossibility  of  court  granting 
any  effectual  relief. — "Almost  from  the  be- 
ginning it  has  been  the  settled  rule  in  this 
court  that  when,  pending  a  writ  of  error 
to  a  lower  federal  court,  and  without  the 
fault  of  the  defendant  in  error,  an  event 
occurs  which  renders  it  impossible,  if  the 
cases  was  decided  in  favor  of  the  plaintiff 
in  error,  to  grant  him  any  efifectual  re- 
lief whatever,  the  court  will  not  proceed 
to  a  formal  judgment,  but  will  dismiss  the 
writ."  Gulf,  etc..  R.  Co.  v.  Dennis.  224 
U.  S.  503.  56  L.  Ed.  860,  32  S.  Ct.  542. 

292-51a.  Qualification  of  general  rule. — 
Southern  Pac,  etc..  Co.  v.  Interstate  Com- 
merce Comm.,  219  U.  S.  498.  55  L.  Ed. 
310,  31  S.  Ct.  279,  following  United  States 
V.  Trans-Missouri  Freight  Ass'n,  166  U.  S. 
290,  308,  41  L.  Ed.  1007,  17  S.  Ct.  540. 

"This  court  has  said  a  number  of  times 
that  it  will  only  decide  actual  controver- 
sies, and  if.  pending  an  appeal,  something 
occurs  without  any  fault  of  the  defendant 
which  renders  it  impossible,  if  our  de- 
cision should  be  in  fav^r  of  the  plaintifif. 
to  grant  hiin  efifectual  relief,  the  appeal 
will  be  dismissed.  Jones  v.  Montague,  194 
U.  S.  147,  48  L.  Ed.  913.  24  S.  Ct.  611,  and 
Richardson  r.  McChesnej\  218  U.  S.  487, 
54  L.  Ed.  1121,  31  S.  Ct.  43.  But  in  those 
cases  the  acts  sought  to  he  enjoined  had 
been  completely  executed,  and  there  was 
nothing  that  the  judgment  of  the  court,  if 
the  suits  had  been  entertained,  could  have 
afifected.  The  case  at  bar  comes  within 
the  rule  announced  in  United  States  7'. 
Trans-^Iissouri  Freight  Ass'n.  166  U.  S. 
290,  1007.  41  L.  Ed.  290.  17  S.  Ct.  540,  and 
Boise  City  Irr.  &  Land  Co.  v.  Clark  (C. 
C.  App.  9th  Cir.),  131  Fed.  Rep.  415." 
Southern  Pac,  etc.,  Co.  v.  Interstate  Com- 


merce Comm.,  219  U.  S.  498,  514.  55  L. 
Ed.   310.   31   S.   Ct.  279. 

Appeal  from  orders  of  interstate  com- 
merce commission.— An  appeal  from  a  de- 
cree dismissing  a  suit  to  enjoin  the  en- 
forcement of  an  order  of  the  interstate 
commerce  commission  requiring  a  carrier 
to  desist  from  granting  a  shipper  an  al- 
leged undue  preference  over  his  com- 
petitors will  not  be  dismissed  as  present- 
ing merely  a  moot  case  because  the  time 
during  which  such  order  v/as  by  its  ex- 
press terms  to  continue  in  force  has  ex- 
pired. Southern  Pac,  etc.,  Co.  v.  Inter- 
state Commerce  Comm..  219  U.  S.  498.  55 
L.  Ed.  310.  31  S.  Ct.  279,  citing  United 
States  V.  Trans-Missouri  Freight  .A.ss'n, 
166  U.  S.  290,  41  L.  Ed.  1007,  17  S.  Ct.  540. 

The  lapse  of  more  than  two  years  since 
an  order  of  the  interstate  commerce  com- 
mission setting  aside  new  rates  and  re- 
storing old  ones  on  the  theory  of  a  sup- 
posed equitable  estoppel  became  effective 
does  not  require  that  an  appeal  from  a 
decree  of  a  federal  circuit  court,  re.'^using 
to  enjoin  the  enforcement  of  such  order, 
be  dismissed  as  presenting  a  moot  con- 
troversy, especially  in  view  of  the  pos- 
sible liability  for  reparation  to  which  the 
carriers  may  be  subjected  if  the  legality 
of  the  order  is  not  determined,  and  the 
influence  and  effect  which  the  existence 
of  the  rate  fixed  for  two  years,  if  legal, 
will  have  upon  the  exercise  by  the  car- 
riers of  their  authority  to  fix  just  and  rea- 
sonable rates  in  the  future.  Southern  Pac. 
etc.,  Co.  V.  Interstate  Commerce  Comm.. 
219  U.  S.  433,  55  L.  Ed.  283,  31  S.  Ct.  2SS. 
reversing  decree   (C  C.  1910),  177   F.  963. 

295-61^  Compromise  of  controversies  be- 
tween private  individuals. — Where  it  ap- 
pears on  argument  that  the  case  has  been 
settled  by  the  parties,  so  that  nothing  re- 
mains but  a  moot  question,  the  appeal  will 
be  dismissed.  Buck's  Stove,  etc.,  Co.  v. 
American  Federation,  219  U.  S.  581,  55  L. 
Ed.  345.  31  S.  Ct.  472.  citing  Richardson  v. 
McChesney.  218  U.  S.  487,  54  E.  Ed.  1121, 
31    S.    Ct.   43. 


i: 


297-331 


APPEAL  AND  ERROR. 


Vol.  II. 


no  new  indictment  has  been  returned  within  three  years  from  the  date  of  the 
commission  of  the  alleged  offense,  or,  if  returned,  is  not  still  pending,  since, 
under  the  circumstances,  the  case  has  become  merely  a  moot  one.'^*^'' 

6.  The  Motion — a.  Uniting  Motion  to  Affirm  with  Motion  to  Dismiss — (1) 
In  General. — If  a  party  desires  to  obtain  an  affirmance  under  the  operation  of 
Rule  6  his  motion  must  be  to  affirm  as  well  as  to  dismiss. ^^^ 

c.    Notice  of  Motion — (1)    Necessity  for. — See  note  61. 

XV.    Presumptions  on  Appeal. 
A.  In  Support  of  Proceedings  below — 1.    In  General. — See  notes  20,  21. 

5.  As  TO  Jurisdiction — a.  Of  Trial  Court — (5)  Change  of  Venue. — It  will 
be  presumed  on  appeal  that  the  jurisdictional  facts  and  findings  authorizing  a 
change  of  venue  were  presented  to  the  court  below  and  constituted  its  ground 
of  action,  although  such  facts  and  findings  are  not  shown  by  the  record.^"^^ 

6.  As  TO  THE  Pleadings — e.  Waiver  or  Abandonment  of  Issues. — The  issues 
raised  by  a  plea  will  be  presumed  to  have  been  waived  or  abandoned  at  the  trial, 
where,  after  a  demurrer  to  such  plea  had  been  sustained  without  exception 
taken,  defendant  went  to  trial  upon  the  merits  without  objection,  and  intro- 
duced evidence  upon  other  issues,  and  no  evidence  was  offered  or  introduced 
on  either  side  relating  to  the  matters  set  out  in  such  plea.^'^ 

XVI.  Reversible  Error. 

A.  Right  to  Complain  of  Error — 1.  Parties  Not  Appealing — a.  /;;  Gen- 
eral.— See  note  4. 


297-70a.  Crime  barred  by  statute  of  limi- 
tations.—Lewis  V.  United  States,  216  U.  S. 
611.   54   L.   Ed.   637,  .30   S.   Ct.   438. 

309-39a.      Affirmance    under     rule      6. — 

Foree    v.     McVeigh,     131    U.     S.,     appx., 
cxlii,  23  L.  Ed.  1010. 

312-61.  Necessity  for  notice  of  motion.' 
— Where  a  party  is  desirous  of  obtaining 
an  affirmance  under  the  operation  of  rule 
6  the  plaintiff  in  error  must  have  the  req- 
uisite notice  so  that  he  may  resist  if  he 
chooses.  Foree  v.  McVeigh,  131  U.  S., 
appx.,  cxlii,  23  L-  Ed.  1010. 

320-20.  On  appeal  in  a  criminal  case  the 
record  in  the  trial  court  will  not  be  in- 
terpreted to  show  error,  if  it  is  susceptible 
of  a  reasonable  interpretation  to  the  con- 
trary. Judgment,  State  v.  Durein  (1905), 
80  P.  987.  70  Kan.  1,  affirmed.  Durein  v. 
Kansas.  208  U.  S.  613,  52  L.  Ed.  645,  28 
S.  Ct.  567. 

321-21.  Order  granting  or  refusing  new 
trial.:— The  grounds  for  refusing  a  new 
trial  for  newly  discovered  evidence  will  be 
presumed  to  have  been  sufficient,  where 
they  do  not  appear  on  the  record.  Santos 
V.  Holy  Roman  Catholic,  etc..  Church,  212 
U.    S.   463,   53    L.   Ed.   599,  29   S.   Ct.  338. 

Matters  determined  below. — Without  de- 
termining what  would  be  the  efifect  of  a 
judgment  in  an  adverse  suit  in  respect  to 
subterranean  rights,  if  any  were  in  fact 
presented  and  adjudicated,  it  is  enough 
now  to  hold  that  there  is  no  presumption, 
in  the  absence  of  the  record,  that  any  such 
rights  were  considered  and  determined. 
Indeed,  in  the  absence  of  a  record,  or 
some  satisfactory  evidence,  it  is  to  be  as- 


sumed that  the  patents  were  issued  with- 
out any  contest  and  upon  the  surveys 
made  under  the  direction  of  the  United 
States  surveyor  general,  and  included  only 
ground  in  respect  to  which  there  was  no 
conflict.  Lawson  v.  United  States  Min. 
Co.,  207  U.  S.  1,  17,  52  L.  Ed.  65.  28  S. 
Ct.   15. 

329-87a.  Change  of  venue.— Hendrix 
V.  United  States.  219  U.  S.  79,  55  L.  Ed. 
102,  31  S.  Ct.  193. 

The  presumption  will  be  indulged  that 
the  jurisdictional  fact  of  the  Indian  citi- 
zenship of  the  accused  in  a  homicide  case 
was  presented  to  the  United  States  court 
in  the  Indian  territory,  and  constituted 
the  ground  of  its  order  changing  the 
venue,  pursuant  to  Act  June  28,  1898,  c. 
517,  §  29,  30  Stat.  511,  to  the  federal  dis- 
trict court  at  Paris.  Tex.,  where  such  citi- 
zenship is  admitted,  and  the  affidavit  upon 
which  the  order  of  removal  was  made  is 
not  in  the  record,  and  the  order  recited 
that  the  court  granted  the  motion,  "being 
well  advised  in  the  premises,"  and  it  is 
stated  in  the  affidavit  of  the  attorney  for 
the  accused,  filed  in  support  of  a  motion 
to  send  the  case  back  to  Oklahoma,  that 
the  motion  for  removal  was  made  "under 
the  federal  statute  permitting  said  re- 
moval to  be  made."  Hendrix  v.  United 
States,  219  U.  S.  79,  55  L.  Ed.  102.  31  S. 
Ct.  193.     See  post,  VENUE. 

330-97a.  Waiver  or  abandonment  of  is- 
sues.— German,  etc.,  Ins.  Co.  v.  Hale,  219 
U.   S.   307,  55  L.  Ed.  229,  31    S.   Ct.  246. 

331-4.  Only  parties  appealing  can  al- 
lege  error. — Parties   who     have      not     ap- 


134 


Vol.  11. 


APPEAL  AND  ERROR. 


334-339 


2.   Errors  Affecting  Co-Party. — See  note  10. 

B.  Statement  of  General  Principles — 1.  Error  Must  Be  Prejudicial 
— a.    In  General. — See  note  13. 

b.  Illustrative  Cases — (2)  Defects  and  Irregularities  in  the  Pleadings — 
bb.    Striking  Out  Pleadings. — See  note  40. 

Curing  Error  in  Refusing  to  Strike  Out  Pleadings. — A  refusal  of  the 
court  to  strike  out  objectionable  counts  or  paragraphs  in  a  pleading  may  be 
rendered  harmless  by  curative  instructions  from  the  court.'*  ^^ 

(3)  Errors  ivith  Respect  to  the  Evidence — bb.  Admission  of  Evidence — 
aaa.    In  General. — See  note  43.     The  general  rule  is  that  the  admission  of  in- 


pealed  from  the  judgment  below  can  not 
object,  on  an  appeal  sued  out  by  their  ad- 
versaries, to  the  failure  of  the  court  below 
to  sustain  a  motion  to  dismiss  the  cause. 
Judgment  (1906),  85  P.  459,  16  Okl.  131, 
affirmed.  Southern  Pine  Lumber  Co.  r. 
Ward.  ;J08  U.  S.  126,  52  L.  Ed.  420,  28  S. 
Ct.  239. 

Counsel  for  the  executors  has  no  right 
to  appear  and  be  heard  against  the  decree 
below  in  an  action  involving  the  validity 
and  construction  of  a  testamentary  trust 
where  his  clients  have  not  appealed. 
Fitchie  r.  Brown,  211  U.  S.  321.  53  L.  Ed. 
202.  29  S.  Ct.  106. 

334-10.  Errors  affecting  co-party. — An 
objection  on  behalf  of  one  of  several  de- 
fendants, during  a  trial  for  criminal  con- 
spiracy, passes  out  of  the  case  with  the 
acquittal  of  that  defendant,  and  can  not 
be  taken  advantage  of  bj^  those  of  the  de- 
fendants who  are  convicted.  Hyde  z'. 
United  States,  35  App.  D.  C.  451,  writ  of 
certiorari  granted.  Hyde  z'.  United  States, 
218  U.  S.  681,  54  L.  Ed.  1207,  31  S.  Ct. 
228. 

334-13.  Sending  the  jury  out  before 
counsel  had  stated  all  of  his  exceptions 
to  the  charge  is  not  reversible  error,  where 
the  judge  allowed  all  the  exceptions  to  be 
noted  in  open  court.  Gandia  r.  Pettingill, 
222  U.   S.  452,  56  L.   Ed.  267,  32   S.   Ct.  127. 

Overruling  exception  for  impertinence. 
— The  overruling  of  the  exceptions  taken 
on  the  ground  of  impertinence  to  so  much 
of  the  bill  filed  by  the  United  States  un- 
der Act  July  2,  1890.  c.  647,  §  4.  26  Stat. 
209  (U.  S.  Comp.  St.  1901.  p.  3201"),  to 
restrain  violations  of  that  act.  as  counted 
upon  facts  occurring  prior  to  its  enact- 
ment, can  not  be  regarded  as  prejudicial 
error,  where  the  court  gave  no  weight  to 
the  testimony  adduced  under  the  aver- 
ments complained  of.  except  in  so  far  as 
it  tended  to  throw  light  upon  the  acts 
done  after  the  passage  of  the  statute,  the 
results  of  which,  it  was  charged,  were  be- 
ing participated  in  and  enjoyed  by  the  al- 
leged combination  at  the  time  of  the  filing 
of  the  bill.  Standard  Oil  Co.  z:  United 
States,  221  U.  S.  1.  55  L.  Ed.  619,  31  S.  Ct. 
502,  affirming  judgment  in  (C.  C.  1909), 
United  States  z:  Standard  Oil  Co.  of  New 
Jersey.  173  F.  177. 

The  denial  of  a  motion  for  judgment  be- 


cause of  the  insufficiency  of  an  affidavit 

of  defense,  without  passing  upon  the 
merits  of  the  motion,  can  not  possibly 
constitute  reversible  error,  where  the  de- 
fendant afterwards  filed  formal  pleas  to 
the  statement  of  plaintiff's  claim,  and 
joined  issue  thereon;  the  effect  of  the  rul- 
ing being  simply  to  postpone  considera- 
tion of  the  subject  until  the  trial.  United 
States  V.  United  States  Fidelity,  etc.,  Co., 
222  U.  S.  283,  56  L.  Ed.  200,  32  S.  Ct.  101, 
affirming  judgment  in  (C.  C.  A.),  186  F. 
477. 

Affidavits  of  jurors  to  impeach  verdict. 
— The  error,  if  any,  in  admitting  affidavits 
of  jurors,  to  show  that  they  were  not  in- 
fluenced by  newspapers,  is  immaterial, 
where  the  order  overruling  the  motion  is 
right  on  other  grounds.  Spreckels  v. 
Brown,  212  U.  S.  208.  53  L.  Ed.  476.  29  S. 
Ct.   256.      See   post.   VERDICT. 

338-40.  Refusal  to  strike  from  the  com- 
plaint, in  an  action  for  negligence  causing 
the  death  of  plaintiff's  husband,  a  para- 
graph relating  to  exemplary  damages,  if 
erroneous,  is  harmless,  where  the  jury  are 
instructed  that  there  can  be  no  recovery 
of  exemplary  damages.  San  Tuan  Light. 
etc..  Co.  z:  Requena,  224  U.  S.  89,  56  L. 
Ed.  680,  32  S.  Ct.  399. 

338-41a.  Curing  error  in  refusing  to 
strike  out  pleadings. — San  Juan  Light,  etc., 
Co.  z:  Requena.  224  U.  S.  89,  56  L.  Ed. 
680.  32   S.   Ct.   399. 

339-43.  Evidence  of  an  alleged  confes- 
sion, not  objected  to  on  the  ground  that 
it  was  obtained  by  improper  means  by  the 
conspirator  who  is  alleged  to  have  made 
it.  is  not  prejudicial  to  a  coconspirator 
whom  it  did  not  and  could  not  affect,  but 
who  did  so  object  to  it.  Hyde  v.  United 
States.  35  App.  D.  C.  451.  writ  of  certiorari 
eranted.  Hyde  z\  United  States,  218  U. 
S.    681,    54    L.    Ed.    1207,    31    S.    Ct.    228. 

Subornation  of  perjury, — One  accused 
of  conspiring  to  suborn  perjury  in  pro- 
ceedings for  the  purchase  of  public  lands 
under  the  Timber  and  Stone  Act  is  not 
prejudiced  by  admitting  evidence  nf_ an  at- 
tempt to  acquire  and  of  the  acquisition, 
by  like  unlawful  methods,  of  state  school 
lands,  because  it  tends  to  show  the  com- 
mission of  crimes  other  than  those 
charged  in  the  indictment,  especially 
where  the  trial  judge  in  his  charge  care- 


]  35 


339-343 


APPEAL  AND  ERROR. 


Vol.  11. 


competent  evidence  is  not  reversible  error  if  it  subsequently  is  distinctly  with- 
drawn from  the  consideration  of  the  jury.'*^^ 

cc.   Exclusion  of  Ezndence — aaa.    Harmless  Error. — See  note  55. 

dd.  Witnesses— aaa.  In  General.— Exi^tert  Witnesses.— Error,  if  any,  in 
refusing  to  strike  out  expert  testimony  as  to  the  reasonable  value  of  legal  serv- 
ices, because,  on  cross-examination,  it  appeared  that  such  testimony  was  based 
upon  an  assumption  of  fact  not  disclosed  to  the  jury,  is  not  prejudicial,  where 
the  jury,  by  its  verdict,  finds  that  the  amount  of  compensation  to  be  paid  for 
such  services  was  fixed  by  contract,  and  each  witness  testified  upon  the  assump- 
tion that  the  compensation  was  not  so  fixed,  and  it  was  upon  that  assumption 
alone  that  their  testimony  was  submitted  to   the  jury.*^'^ 

ee.    Curing  Errors. — See  note  71. 


fully  limited  the  application  of  the  testi- 
mony so  as  to  prevent  any  improper  use. 
Williamson  v.  United  States,  207  U.  S.  425, 
52  L.   Ed.  278,  28  S.  Ct.  163. 

339-44a.  General  rule. — Turner  v.  Ameri- 
can, etc.,  Trust  Co.,  213  U.  S.  257,  267,  53 
L.    Ed.   788,   29    S.   Ct.   420. 

341-55.  When  exclusion  of  evidence 
harmless. — The  exclusion  of  the  testimony 
of  a  witness  for  one  of  four  persons 
charged  with  criminal  conspiracy,  which 
had  no  bearing  upon  the  specific  charges 
against  two  of  the  accused  who  were 
found  guilty,  can  not  be  properly  made 
the  basis  of  an  assignment  of  error  on  an 
appeal  by  them.  Hyde  v.  United  States. 
35  App.  D.  C.  451,  writ  of  certiorari 
granted.  Hvde  v.  United  States,  218  U. 
S.  681,  54_  L.   Ed.   1207,  31  S.   Ct.  228. 

Error,  if  any,  in  excluding  copies  of 
books  of  account,  is  harmless  where  all 
persons  from  whose  reports  the  books  are 
made  up  were  permitted  to  testify.  Judg- 
ment (1906),  87  P.  311,  17  Okl.  344,  af- 
firmed. Drumm-Flato  Comm.  Co.  v. 
Edmission,  208  U.  S.  534.  52  L.  Ed.  606. 
28   S.   Ct.  367. 

The  error,  if  any,  in  rejecting  testimony 
in  a  creditors'  suit,  offered  only  as  against 
the  widow  of  the  alleged  fraudulent 
grantor  and  her  children,  and  not  against 
the  other  defendants,  is  not  prejudicial, 
where  the  court  decrees  that  the  claimants 
are  not  entitled  to  any  relief  under  their 
bill.  Will  7'.  Tornabells,  217  U.  S.  47,  54 
L.   Ed.   660,  30  S.   Ct.  424. 

Practice  in  Oklahoma. — The  refusal, 
based  upon  the  state  of  the  pleadings,  to 
permit  a  corporate  defendant  to  prove 
facts  tending  to  show  that  the  partnership 
out  of  which  it  grew  was  the  real  party 
in  interest,  does  not  afifect  "substantial 
rights"  within  the  meaning  of  Wilson's 
Rev.  &  Ann.  St.  Okl.  1903,  c.  66,  art.  8, 
§  146,  governing  the  reversal  of  judg- 
ments, where  no  testimony  on  that  point 
was  offered  after  the  pleadings  were 
amended,  and  the  incorporation  was  evi- 
dently merely  for  business  convenience. 
the  partners  taking  nearly  all  the  stock 
in  their  own  names,  and  was  followed  by 
no  change  in  the   manner  of  doing  busi- 


ness. Judgment  (1906),  87  P.  320,  17  Okl. 
355,  affirmed.  McCabe,  etc.,  Constr.  Co. 
V.  Wilson,  209  U.  S.  275,  52  L.  Ed.  788,  28 
S.    Ct.    558. 

Ex  parte  affidavits. — The  errors,  if  any, 
on  the  part  of  the  court  of  claims,  in  ex- 
cluding ex  parte  affidavits  which  counsel 
had  agreed  might  be  given  the  effect  of 
depositions,  does  not  call  for  the  reversal 
of  a  judgment  dismissing  the  petition  of 
Indian  claimants  for  their  alleged  pro- 
portionate shares  of  appropriations  to 
fulfill  treaty  obligations,  where  the  admis- 
sion of  the  evidence  could  not  have 
changed  the  result.  Sac  and  Fox  Indians 
7.  Sac  and  Fox  Indians,  220  U.  S.  481,  55 
L.  Ed.  552,  31  S.  Ct.  473.  affirming  judg- 
ment   (1910),    45    Gt.    CI.    287. 

The  refusal  by  the  trial  court  to  permit 
the  accused  in  a  criminal  case  to  show 
that  certain  letters  addressed  to  him  had 
never  reached  the  dead  letter  office  is  not 
prejudicial  error,  where  it  is  apparent 
from  other  evidence  that  the  letters  had 
been  unlawfully  obtained  by  agents  of  the 
prosecution.  Hyde  v.  United  States,  35 
App.  D.  C.  451,  writ  of  certiorari  granted. 
Hyde  v.  United  States,  218  U.  S.  681,  54 
L.    Ed.    1207.   31    S.    Ct.   228. 

The  exclusion  of  evidence  in  an  equity 
cause,  even  if  erroneous,  is  not  ground  for 
reversal,  where,  if  admitted,  it  could  not 
have  affected  the  result.  Reavis  v.  Fianza, 
215  U.  S.   16.  54   L.   Ed.   72,  30   S.   Ct.   1. 

342-67a.  Expert  witnesses. — Judgment 
(N.  M.  1905),  82  P.  232,  affirmed.  Cun- 
ningham t'.  Springer,  204  U.  S.  647,  51  L. 
Ed.  662,  27   S.  Ct.  301. 

343-71.  Error  in  permitting  an  improper 
use  of  a  letter  on  the  cross  examination 
of  the  addressee  is  cured  by  instructing 
the  jury  that  such  letter  is  not  to  be  taken 
as  evidence  of  the  truth  of  any  of  its 
statements,  or  even  allowed  to  be  used 
for  the  purpose  of  cross  examination. 
Turner  t'.  American,  etc..  Trust  Co.,  213 
U.   S.   257,   53   L.    Ed.   788,   29   S.   Ct.   420. 

Error  in  taking  judicial  notice. — In  a 
suit  to  quiet  title  to  lands,"  any  alleged  er- 
ror in  a  statement  by  the  court  that  it 
would  take  notice  of  a  certain  patent,  and 
that  the  lands  in    controversy     were     in- 


136 


Vol.  II. 


APPEAL  AND  ERROR. 


344 


(4)    Errors  with  Respect  to   the  Instructions — aa. 
Giving  Instructions. — See  note  73. 


In  General. — Errors  in 


eluded  therein,  was  cured  by  the  subse- 
quent introduction  in  evidence  of  the 
patent  and  maps,  from  which  it  fully  ap- 
peared that  the  land  was  so  included. 
Judgment,  United  Land  Ass'n  v.  Pacific 
Imp.  Co.  (1902),  69  P.  1064,  139  Cal.  370, 
affirmed.  United  States  Land  x^ss'n  v. 
Abrahams,  208  U.  S.  614,  52  L.  Ed.  645. 
28  S.   Ct.   569. 

344-73.  Error,  if  any,  in  a  charge  by  the 
trial  court,  in  a  criminal  prosecution  for 
conspiracy  against  four  persons,  to  the  ef- 
fect that  as  some  evidence  was  admitted 
as  against  each  defendant,  it  was  not  ad- 
mitted as  against  the  others,  the  verdict 
might  be  against  one  only,  is  not  preju- 
dicial and  reversible  error,  where  two  of 
the  accused  were  found  guilty.  Hyde  v. 
United  States,  35  App.  D.  C.  451,  writ  of 
certiorari  granted.  Hyde  t'.  United  States. 
218  U.  S.  681,  54  L.  Ed.  1207,  31  S.  Ct.  228. 

Instructing  the  jury  in  the  criminal 
prosecution  of  a  carrier  for  giving  rebates 
to  take  into  consideration  the  absence  of 
a  certain  witness  and  the  nonproduction 
of  books  in  which  entries  were  made  con- 
cerning the  transactions  in  question  is  not 
prejudicial  error,  where  the  jurors  are  left 
to  attach  such  weight  to  these  circum- 
stances as  they  see  fit,  and  are  further  in- 
structed that  there  is  no  evidence  that  the 
defendant  or  those  who  controlled  its  cor- 
porate action  destroyed  or  failed  to  pro- 
duce any  paper  for  which  the  government 
asked.  New  York,  etc.,  R.  Co.  v.  United 
States,  212  U.  S.  481,  53  L.  Ed.  613,  29  S. 
Ct.  304. 

Submitting  to  the  jury  on  a  prosecution 
against  a  shipper  for  accepting  rebates  in 
violation  of  the  Elkins  Act  of  February  19, 
1903,  the  question  whether  or  not  there 
was  a  device  to  avoid  the  operation  of  the 
act  and  to  obtain  the  transportation  at 
less  than  the  carrier's  published  rates,  did 
not  prejudice  the  accused,  where,  under 
the  act,  no  device  or  contrivance,  secret 
or  fraudulent  in  its  nature,  is  requisite  to 
the  commission  of  the  offense,  any  means 
by  which  transportation  by  a  concession 
from  the  established  rate  was  had  being 
sufficient  to  work  a  conviction.  Armour 
Packing  Co.  v.  United  States,  209  U.  S. 
56,  52   L.    Ed.   681,   28   S.   Ct.   428. 

Instructions  as  to  boundaries. — An  in- 
struction that  a  grant  from  the  King  of 
Hawaii  of  the  upland  above  a  street  down 
to  what  was  then  its  upper  side,  "and  also 
the  sea  beach  in  front  of  the  same  down 
to  low-water  mark,"  includes  the  strip  be- 
tween the  front  lines  of  the  upland,  as  de- 
scribed by  metes  and  bounds,  and  high- 
water  mark,  can  not  be  deemed  erroneous 
by  the  federal  supreme  court  without 
having  the  evidence  before  it,  where 
the  supreme  court  of  Hawaii,  in  upholding 


the  instruction,  said  that  the  area  between 
the  part  described  and  high-water  mark 
was  not  very  extensive,  was  of  little  value, 
and  was  closely  connected  with  the  upper 
part  in  use.  Spreckels  v.  Brown,  212  U. 
S.  208,  53  L.   Ed.  476,  29  S.  Ct.  256. 

Error  in  the  instructions  as  to  the  ap. 
portionment  of  accretions  does  not  re- 
quire the  federal  supreme  court,  without 
the  evidence  before  it,  to  reverse  a  judg- 
ment for  plaintiff  in  ejectment  on  a  writ 
of  error  to  the  supreme  court  of  Hawaii, 
where  that  court,  though  believing  that 
the  instructions  were  wrong,  believed  that 
the  verdict  was  right,  and  declined  to  set  it 
aside  or  require  a  remittitur  as  a  condi- 
tion of  not  doing  so.  Spreckels  z'.  Brown, 
212  U.  S.  208,  53  L.  Ed.  476,  29  S.  Ct.  256. 

Instructions  defining  measure  of  proof. 
— A  verdict  for  plaintiff  in  ejectment  will 
not  be  disturbed  for  error  in  instructing 
to  find  against  defendants  on  the  defense 
of  adverse  possession,  unless  satisfied,  by 
preponderance  of  evidence,  that  they  have 
"clearly"  proved  such  defense.  Spreckels 
f.  Brown,  212  U.  S.  208,  53  L.  Ed.  476,  29 
S.   Ct.  256._ 

Instructions  after  submission  of  cause. 
— A  further  charge  to  the  jury  upon  their 
return  into  court,  which,  standing  alone, 
might  permit  a  conviction  for  violating  the 
Interstate  Commerce  Act  under  an  indict- 
ment framed  under  Elkins  Act  Feb.  19, 
1903,  c.  708,  32  Stat.  847  (U.  S.  Comp.  St. 
Supp.  1907,  p.  880),  is  not  ground  for  re- 
versal if  the  whole  charge,  taken  to- 
gether, submits  to  the  jury  as  a  basis  of 
conviction  only  the  acts  which  occurred 
after  the  passage  of  the  Elkins  act.  Judg- 
ment (C.  C.  1906),  United  Slates  v.  New 
York  Cent.  &  H.  R.  R.  Co..  146  F.  298; 
New  York,  etc.,  R.  Co.  v.  United  States, 
No.  2,  212  U.  S.  500,  53  L.  Ed.  624,  29  S.  Ct. 
309. 

Applicability  to  issues  and  evidence. — 
A  defendant  setting  up  another  contract 
in  defense  of  an  action  to  enforce  payment 
for  property  sold  and  delivered,  which 
plaintiff  alleges  to  be  void  for  duress,^  is 
not  prejudiced  by  an  instruction  limiting 
a  definition  of  duress  to  a  kind  as  to 
which  there  is  no  pretense  that  it  exists  in 
the  case.  Judgment,  Snyder  ?'.  Stribling 
(1907),  89  P.  222,  18  Okl.  168,  affirmed. 
Snyder  7\  Rosenbaum,  215  U.  S.  261,  54 
L.  Ed.  186.  30  S.  Ct.  73. 

Submission  of  issues  or  questions  to 
jury. — Submitting  the  question  of  the  ex- 
istence of  a  custom  to  use  coal  oil  in 
kindling  fires  is  harmless  error,  where  the 
custom  in  the  community  is  so  universal 
as  to  justify  the  court  in  taking  judicial 
notice  thereof.  Judgment  (1007),  89  P. 
212  18  Okl.  107,  affirmed.  Waters-Pierce 
Oil  Co.  f.  Deselms.  212  U.  S.  159,  53  L. 
Ed.  453.  29  S.  Ct.  270. 


IT, 


345-348 


APPEAL  AND  ERROR. 


Vol.  II. 


Refusal  to  Give  Instruction. — See  note  77. 

bb.    Inacc^iracics  in  Expression. — See  note  82. 

dd.    Invasion  of  Province  of  Jury — aaa.    In  General. — See  note  87. 

(5)    Rule  in  Criminal  Cases. — See  notes  91,  94. 

2.  Pre;sumption  as  to  Pre;judice;. — See  note  99. 

3.  Other   Kinds  of   Harmless  Errors   Considered — a.    Invited  Errors — 
(1)    In  General. — See  note  5. 


345-77.  The  refusal  of  requested  in- 
structions in  a  criminal  case,  concerning 
motive  and  intent,  and  the  efifect  of  ad- 
vice of  counsel,  can  not  prejudice  the  ac- 
cused, where  the  trial  judge  in  instructing 
the  jury  on  the  subject  wrent  as  far  in 
favor  of  the  accused  as  it  w^as  possible  for 
him  to  go  consistently  with  right.  Wil- 
liamson V.  United  States,  207  U.  S.  425,  52 
L.   Ed.  278,  28   S.   Ct.  163. 

The  refusal  to  give  a  requested  instruc- 
tion upon  the  necessity  of  corroborating 
the  testimony  of  an  accomplice  is  not  er- 
ror, where  the  request  assumes  that  the 
witness  was  an  accomplice,  a  conclusion 
which  was  controverted,  and  against 
which  the  jury  might  have  found,  in  the 
light  of  the  testimony.  Holmgren  v. 
United  States,  217  U.  S.  509,  54  L.  Ed.  861, 

30  S.   Ct.  588. 

The  refusal  to  instruct  the  jury,  on  the 
trial  of  a  conspiracy  to  defraud  the  United 
States  by  fraudulently  obtaining  Cali- 
fornia and  Oregon  school  lands  and  ex- 
changing them,  under  the  act  of  June  4, 
1897,  for  other  public  lands,  that  want  of 
personal  knowledge  of  the  character  of 
the  land  applied  for,  or  that  it  was  not  ad- 
versely occupied,  did  not  make  the  appli- 
cations void,  is  not  error,  where  the  ques- 
tion is  immaterial,  the  applications  being 
fraudulent  because  the  applicants  did  not 
buy  for  their  own  benefit.  Hyde  z'.  United 
States,  225  U.  S.  347.  56  L.  Ed.  1114,  32 
S.    Ct.   793. 

345-82.  Substituting  the  word  "would" 
for  "could"  in  a  requested  instruction  to 
the  effect  that  an  employee  assumed  the 
ordinary  risks  not  only  actually  known  to 
him,  but  so  far  as  they  could  have  been 
known  to  him  by  the  exercise  of  ordinary 
care  on  his  part,  and  that  if  he  knew,  or 
by  the  exercise  of  care  and  prudence  could 
have  known,  of  the  defect,  he  could  not 
recover,  is  not  reversible  error.  Standard 
Oil  Co.  V.  Brown,  218  U.  S.  78,  54  L.  Ed. 
939,   30   S.   Ct.   669,   affirming  judgment   in 

31  App.  D.  C.  371. 

346-87.   Comments  of  the  trial  court  as 

to  the  consideration  to  be  given  to  writ- 
ten evidence  are  not  ground  for  reversal 
where  they  amount  only  to  the  declaration 
of  an  abstract  principle,  and  not  to  an  at- 
tempt to  enforce  some  particular  part  of 
the  testimony,  and  to  take  from  the  jury 
their  province  of  considering  it  all,  or 
weighing   the    respective    parts.      Hyde   v. 


United  States,  225  U.  S.  347,  56  L.  Ed. 
1114,  32  S.  Ct.  793. 

347-91.  The  conduct  of  a  federal  district 
attorney  on  a  trial  for  murder,  in  char- 
acterizing as  confessions  certain  alleged 
statements  of  the  prisoner  which  were  ex- 
cluded because  they  were  not  freely  made, 
does  not  require  a  reversal  of  the  convic- 
tion, where  the  court  told  the  jurors  that 
they  were  to  decide  the  case  on  the  testi- 
mony of  the  witnesses,  and  not  on  what 
counsel  might  say.  Holt  v.  United  States, 
218  U.  S.  245,  54  L.  Ed.  1021,  31  S.  Ct.  2, 
affirming  judgment  in  United  States  v. 
Holt    (C.    C.   1909),   168    F.   141. 

347-94.  Sufficiency  of  indictment. — A 
want  of  particularity  in  describing  the  of- 
fense intended  to  be  charged  is  not  a 
ground  for  reversing  a  conviction,  where 
the  indictment  states  the  elements  of  the 
offense  with  sufficient  particularity  fully 
to  advise  defendant  of  the  crime  charged, 
and  to  enable  a  conviction,  if  had,  to  be 
pleaded  in  bar  of  a  subsequent  prosecution 
for  the  same  offense,  in  view  of  Rev.  St. 
U.  S.,  §  1025  (U.  S.  Comp.  St.  1901,  p. 
720),  providing  that  a  conviction  shall  not 
be  affected  by  any  defect  or  imperfection 
in  matter  of  form  not  tending  to  preju- 
dice defendant.  Judgment  (C.  C.  1906), 
United  States  v.  New  York  Cent.  &  H.  R. 
R.  Co.,  146  F.  298;  affirmed.  New  York, 
etc.,  R.  Co.  V.  United  States,  212  U.  S.  481, 
53  L.  Ed.  613,  29 'S.  Ct.  304. 

Only  substantial  defects  in  an  indict- 
ment are  available  to  reverse  a  conviction. 
Judgment  (C.  C.  1906),  United  States  v. 
New  York  Cent.  &  H.  R.  R.  Co.,  146  F. 
298;  affirmed.  New  York,  etc.,  R.  Co.  7'. 
United  States,  No.  2,  212  U.  S.  500,  53  L. 
Ed.  624,  29  S.  Ct.  309. 

347-99.  Presumption  as  to  prejudice. — 
There  is  a  presumption  of  harm  arising 
from  the  existence  of  an  error  committed 
by  a  trial  court  against  the  party  complain- 
ing, in  excluding  material  evidence  on  a 
trial,  especially  before  a  jury.  It  is  only 
in  cases  where  the  absence  of  harm  is 
clearly  shown  from  the  record  that  the 
commission  of  such  an  error  against  a 
party  seeking  to  review  it  is  not  cause  for 
the  reversal  of  the  judgment.  Crawford 
V.  United  States.  212  U.  S.  183,  203,  53  L. 
Ed.  465,  29  S.  Ct.  260. 

348-5.  Forcing  to  trial  a  consolidated 
cause  arising  out  of  the  financial  difficul- 
ties of  a  corporation  whose  property  is  in 
the  hands  of  a  receiver,  without  affording 


138 


Vol.  II.  APPEAL  AND  ERROR.  352-365 

C.  Waiver    of    Error — 2.    Implied    Waiver. — Overruling    Demurrer    to 
Evidence. — Any  supposed  error  committed  by  the  trial  court  in  overruling  a 
demurrer  to  the  evidence  is  waived  where  the  defendant  thereafter  proceeds  to 
introduce  testimony  in  his  own  behalf. ^^^ 
f 
XVII.    Hearing  and  Determination. 

A|.  Determination  of  Unadjudicated  Questions. — The  disposition  of  the 
authorities  of  the  state  of  West  Virginia  to  await  the  next  regular  session  of  the 
Legislature,  convening  more  than  one  year  hence,  before  considering  the  mat- 
ters left  open  by  the  federal  supreme  court  when  determining  the  amount 
which  such  state  should  pay  as  its  equitable  share  of  the  public  debt  of  the  origi- 
nal state  of  Virginia,  which  was  assumed  by  West  Virginia  at  the  time  of  its 
creation  as  a  state,  does  not  furnish  sufficient  reason  for  granting  a  motion  on 
behalf  of  the  state  of  Virginia  that  the  court  proceed  to  settle  and  determine  all 
the  c|uestions  left  open  by  its  decision. ^^^^ 

C.  Advancement  of  Causes — 2.  What  Causes  Advanced — e.  Criminal 
Cases. — The  writ  of  error  allowed  on  behalf  of  the  United  States  in 
criminal  cases  takes  precedence  over  all  other  cases.  Act  March  2,  1907,  ch. 
2564,  34  Stat.  L.  1246.«i^ 

M.  Effect  of  Change  in  Law  Pending  Appeal — 2.  Repeal  oe  Statutes. 
— When,  during  the  pendency  in  an  appellate  court  of  an  action  for  a  penalty, 
civil  or  criminal,  the  statute  prescribing  the  penalty  is  repealed,  without  any 
saving  clause,  the  appellate  court  must  dispose  of  the  case  under  the  law  in 
force  when  its  decision  is  given,  even  although  to  do  so  requires  the  reversal 
of  a  judgment  which  was  right  when  rendered. ^'^'^  Under  §  299  of  the  Judicial 
Code  of  March  3,  1911,  which  makes  a  saving  as  to  cases  pending  on  a  writ  of 
error,  appeal,  certificate,  or  writ  of  certiorari,  in  any  appellate  court  referred 
to  or  included  within  the  provisions  of  this  act,  pending  at  the  time  it  took  ef- 
fect, it  has  been  held  that  it  must  appear  clearly  that  the  case  is  saved  or  it  will 
fall  under  the  general  rule.  At  any  rate  the  act  only  saves  jurisdiction  when 
an  appeal  has  been  taken  and  does  not  save  a  suit  not  yet  begun.-^*^''  The  gen- 
eral provision  in  §  299  of  the  Judicial  Code  of  March  3,  1911,  that  the  repeal 
shall  not  afifect  any  right  or  suit  is  ambiguous,  and  is  qualified  and  explained 

the  corporation  the  time  to  plead  allowed  U.  S.  17,  56  L.  Ed.  71,  32  S.  Ct.  4. 
by  the  equity  rules,  is  not  reversible  error,  355-61a.    Writ   of  error  allowed   United 

where  the  proceedings   leading  up   to  tlie  States  in  criminal  cases. — See  Act  of  March 

appointment  of  the  receiver  and  the  power  2,  1907,  cha]).  2564,  34  Stat,  at  L.  1246. 
given  to  administer    the     property     were  365-36a.    Repeal  of  statutes — In  general. 

largely  the  result  of  the  assent  of  the  cor-  — The  Peggy,  1  Cranch  103,  110,  2  L.  Ed. 

poration,    and    where    the    steps    taken    by  49;  The  General  Pinkney.  5  Cranch  281,  3 

the  court  for  the  purpose  of  bringing  the  L.  Ed.  101;  The  Rachel,  6  Cranch  329,  3  L. 

cause   to   a   speedy   conclusion    and     thus  Ed.  239;  Vance  v.  Rankin,  194  111.  625,  88 

avoiding  further  loss  were  also  acquiesced  Am.   St.   Rep.   173,  62   N.   E.  807;   Hartung 

in  by  all  the  parties  in  interest,  who  com-  v.  People,  22  N.  Y.  95;  Musgrove  z/.  Vicks- 

plied  with  the  terms  of  the  order  setting  burg  &  N.  R.  Co.,  50  Miss.  677;  Montague 

the  cause  for  trial,  and  took  advantage  of  z'.  State,  54  Md.  481;  Denver  &  R.  G.   R. 

the  rights  which   it  conferred,  and  where  Co.  v.  Crawford,  11  Colo.  598,  19  Pac.  673; 

the  corporation's  objection  was  the  result  Sheppard    v.    State,    1    Tex.    App.    522,    28 

of  a  change  of  front  because  of  the  action  Am.   Rep.   422;    Kenyon  z>.   State,   31    Tex. 

of  the   court   in    refusing    a      continuance  Crim.  Rep.  13,  23  S.  W.  191 ;  Cooley,  Const, 

based    upon    the     absence      of     witnesses.  Lim.   6th    Ed.    469;    2      Sutherland,      Stat. 

Valdes  v.  Central  Altagracia,  225  U.  S.  58,  Constr.  2d  Ed.,  §  286;  Gulf,  etc.,  R.  Co.  f. 

56  L.   Ed.  980,  32  S.  Ct.  664.  Dennis,   224   U.    S.    503,    56    L.    Ed.   860,   32 

352-25a.     Overruling   demurrer    to     evi-  S.   Ct.  542. 
dence.— McCabe,  etc.,  Constr.  Co.  v.  Wil-  365-36b.    Under  Code  of  March  3,  1911. 

son,   209   U.    S.   275,   52   L.    Ed.   788,   28    S.  —Washington    Home   v.    .'Xmerican,     etc., 

Ct.   558.  _  Trust  Co.,  224  U.  S.  486,  56  L.  Ed.  854,  32 

352-26a.  Determination  of  unadjudicated  S.    Ct.    554. 
questions. — Virginia  f.  West  Virginia,  222 

139 


365-372  APPEAL  AND  ERROR.  Vol.  11. 

by  the  words,  "including  those  pending  on  appeal,"  etc.,  which  suggest  that  but 
for  them  appeals  already  taken  would  have  fallen.^^c 

0.  Scope  of  Review — 1.  In  Gene^ral. — The  federal  supreme  court,  when 
reviewing  a  judgment  of  a  circuit  court  of  appeals,  affirming  a  judgment  of  a 
circuit  court  in  an  action  to  recover  damages  for  personal  injuries,  discharges 
its  whole  duty,  with  reference  to  the  contention  that  the  plaintiff  was  so  clearly 
guilty  of  contributory  negligence  that  it  was  the  duty  of  the  court  to  have  di- 
rected a  verdict  for  defendant,  by  giving  to  the  record  such  examination  and 
consideration  as  may  be  necessary  in  order  to  determine  whether  plain  error 
was  committed  by  the  court  below,  and  is  not  called  upon  to  scrutinize  the  whole 
record  for  the  purpose  of  discovering  whether  it  may  not  be  possible  by  a  min- 
ute analysis  of  the  evidence  to  draw  inferences  therefrom  which  may  possibly 
conflict  with  the  conclusions  below  as  to  the  tendencies  of  the  proof.^^^ 

1^.  Matters  Not  Raised  in  Court  rElow. — Contentions  which  the  record 
does  not  show  to  have  been  presented,  directly  or  indirectly,  to  the  trial  court, 
by  way  of  pleading  or  otherwise,  before  final  judgment,  and  which  were  not 
made  the  subject  of  complaint  in  the  motion  for  a  new  trial,  and  which  were 
evidently  regarded  by  the  supreme  court  of  the  territory,  on  writ  of  error,  as  an 
afterthought,  and  not  open  under  the  state  of  the  record,  can  not  be  considered- 
by  the  federal  supreme  court  on  an  appeal  from  the  supreme  court  of  the  ter- 
ritory.s^^ 

7.  Matters  Not  Decided  bEeow. — Where  the  circuit  court  had  not  passed 
upon  the  question  of  whether  it  should  follow  the  decisions  of  the  federal  su- 
preme court  or  the  state  court,  in  determining  the  rights  of  certain  bond  holders, 
the  supreme  court  refused  to  express  or  intimate  any  opinion  upon  that  subject, 
and  held  that  the  questions  in  the  first  instance  must  be  passed  upon  by  the 
circuit  court.*'"^ 

8.  In  Particular  Cases — g.  Revieiv  by  Supreme  Court  of  Philippine  Islands. 
— The  supreme  court  of  the  Philippine  Islands,  in  reviewing  the  judgment  of 
the  court  of  first  instance,  in  a  criminal  case,  may  determine  for  itself  the  guilt 
or  innocence  of  the  defendant,  upon  the  proofs  presented  at  the  trial."^^  The 
supreme  court  of  the  Philippine  Islands,  upon  reversing  a  judgment  of  the  court 
below  in  a  criminal  case  on  an  appeal  taken  by  the  accused,  has  jurisdiction 
to  convict  him,  on  the  same  facts,  of  a  different  offense,  carrying  an  increased 
sentence.'''^'' 

365-36C.    Railroad  Co.  v.  Grant,  98  U.  S.  arising  or   acts   done   prior   to   such   date, 

398,  25  L.  Ed.  231;  Washington  Home  v.  may  be  commenced  and  orcsecuted  within 

American,   etc..   Trust   Co.,   224   II.   S.   4SG,  the   same   time,  and  with   the  same  effect. 

56  L.  Ed.  854,  32  S.  C_t.  554.  as   if  said   repeal   or  amendments   had  not 

Appeals  from  District    of     Columbia. —  been  made."    Washington  Home  v.  Ameri- 

The   right   to   a   review   in   the   federal   su-  can,   etc.,  Trust   Co.,  224  U.   S.   486,   56   L- 

preme  court  by  writ  of  error  or  appeal  of  Ed.   854,  32   S.   Ct.  554. 

a  judgment  or  decree  of  the  court  of  ap-  368-55a.    Scope   of  review  in   general.^ 

peals    of    the    District    of    Columbia    in    a  Chicago  Junction   R.   Co.   v.   King,   222   U. 

case   in   which   the   matter   in    dispute    ex-  .S.  222^  56  L.  Ed.  173,  32  S.  Ct.  79. 

coeds  $5,000  was  not  saved  as  to  a  cause  368-55b.   Matters  not  raised  in  court  be- 

pendmg  in   the   court   of  appeals   on   Jan-  low.— Southern      Pine      Lumber     Co.      v. 

uary  1,  1912,  when  the  federal  judicial  code  Ward,   208   U.   S.  126,    52  L.   Ed.  420,   28  S. 

took  effect,  by  §  299  of  that  code,  provid-  Ct.  239,  affirming  in  85  P.  259,  16  Okl.  131. 

mg  that  its  repealing  provision  "shall  not  r,r-n  nn       -n/r  .^^              ^    j     -j   j    u  i 

afifect  any  act  done,  ^^or'any  right  accruing  ^'ms,  \    cf  "\?elben  Colfe^e    °oTu 

or  accrued,  or  any  suit  or  proceeding,  m-  ^^  rno   \o  T     t?  1 '  ^  to    o«  Q    r,    ±or 

eluding   those   pending   on    writ    of    error,  ^^-  ''^^-  ^"  ^-  ^^^-  ^'^'^^  ^8  S.   Ct.  425. 

appeal,    certificate,    or    writ    of    certiorari,  372-79a.    Review  by  supreme    court     of 

in   any  appellate   court  referred  to   or   in-  Philippmes.— Pendleton   v.    United    States, 

eluded   within   the   provisions   of   this   act,  216  U.  S.  305,  54  L.  Ed.  491.  30  S.  Ct.  315. 

pending  at  the  tim.e   of  the  taking  effect  372-79b.   Jurisdiction  to  convict  of  a  dif- 

of  this  act,  but  all  such  suits  and  proceed-  ferent  offense. — Flemister  v.  United  States, 

ings,  and  suits  and  proceedings  for  causes  207  U.  S.  372,  52  L.  Ed.  252,  28  S.  Ct.  129. 

140 


Vol.  II.  APPEAL  AND  ERROR.  372-385 

h.  Appeal  from  Order  Granting  Preliminary  Injunction. — \\'here  an  appeal 
is  allowed  from  an  order  granting  a  preliminary  injunction  the  reviewing  court 
is  put  to  the  duty  of  determining  whether,  on  the  face  of  the  papers,  the  court 
below  erred  as  a  matter  of  law  in  granting  the  preliminary  injunction.'^^'^ 

Q.  Reversal — 2.  Grounds  for  Reversal — a.  In  General.-^Oia.  Matters  of 
Local  Practice. — While  the  federal  supreme  court  is  loath  to  overrule  the 
decisions  of  courts  other  than  courts  of  the  United  States  upon  matters  of  local 
practice,  yet  if  such  court  unwillingly  yields  a  consideration  of  the  merits  to 
matters  of  form,  the  supreme  court  will  feel  less  hesitancy  in  overriding  such 
decision."* 

f.  Changing  Theory  of  Case  on  Appeal. — It  is  a  well-settled  rule  of  appellate 
practice  that  where  the  parties,  with  the  assent  of  the  court,  unite  in  trying  a 
case  on  the  theory  that  a  particular  matter  is  within  the  issues,  that  theory  can 
not  be  rejected  when  the  case  comes  before  an  appellate  court  for  review. ^"^^  A 
judgment  can  not  be  reversed  in  the  appellate  court  on  the  mere  suggestion  that, 
upon  some  other  theory  than  that  on  which  the  case  was  tried,  evidence  might 
'have  been  introduced  which  might  have  changed  the  result.^^*^ 

A  suggestion  as  to  want  of  parties  below,  made  after  final  judgment,  is 
not  available  on  appeal  when  that  suggestion  conflicts  with  the  issues  as  made 
up  and  upon  which  the  case  is  tried,  and  which,  if  the  suggestion  be  correct,  will 
involve  reversing  the  judgment  at  the  request  of  appellants  because  of  deceit 
practised  by  them  upon  the  courts  below. ^'^'^ 

8.  Rendition  and  Entry  oe  Judgme^nt — a.  Rendering  and  Ordering  Pinal 
Judgment — (1)  In  General. — Final  judgment  for  plaintiff  in  error  may  be  en- 
tered where  the  findings  of  the  court  below^  are  full  and  adequate,  and  protect 
every  substantial  right  of  the  party  in  whose  favor  the  judgment  originally  was 
entered.''^'' 

R.  Affirmance — 2.  Grounds  for  Affirmance — aj^.  That  Contentions 
Urged  for  Reversal  Are  Stare  Decisis. — A  judgment  of  a  federal  circuit  court 
will  be  affirmed  on  motion,  under  supreme  court  rule  6,  subd.  5,  where  the  ques- 

372-79C.    Order  granting  preliminary  in-  tion  against  them  for  attesting  a  false  re- 

3  unction. — United  States    v.  Baltimore,  port   of  the   condition   of  the   bank,   in   re- 

etc,  R.  Co.,  225  U.  S.  306,  56  L.  Ed.  1100,  liance  upon  vv^hich  plaintiff  purchased  stock 

32  S.  Ct.  817.  of  the  bank,  can  not  urge  on  appeal  that 


374-7a.    On  matters  of  local  practice. — 


if    the    action    in    the    trial    court    had    not 


Taylor  v.  Leesnitzer,  220  U.   S.  90,  55   L.  '^^^^    based    on    deceit,    instead    of    on    a 

Ed   38''    3]   S   Ct   371.  violation    of   the    national    bank    act,    they 

oDft  oc      /->i.        •       iU  «         f  „  „-.  « would  have  been  able  to  make  a  showing 

380-35a.   Changing    heory  of  case  on  ap-  ^^^^^^  ^j^j^j^              ^^^^.   ^^^,^    ^^^^^     ^^ 

peal.-ban    Juan    Light     etc      Co^  z'.    Re-  j^^^^,   ^^   knowingly  violating   such   act, 

cTZo                          '                             '  ^^here  the  action  was  tried  on  the  theory 

that,    to    maintain    an    action    for    deceit. 

An   objection   that  the   complaint  m   an  knowledge  of  the  falsity  of  the  represen- 

action  for  negligence  causing  the  death  of  tations  must  be  shown,  and  their  defense 

plaintiff's    husband     did      not      sufficiently  ^^-^s  that  the  requirements  of  the  national 

charge    the    negligence    which    was    found  ^jj^i^  ^ct  had  not  been  violated.     Thomas 

to   have   caused   the   accident  is   not  avail-  ^.    Taylor.  224  U.   S.  73,  56  L.   Ed.  673.  32 

able  in  an  appellate  court,  where  the  case  g    qi_  403. 

was  tried  on  the  theory  that  such   negli-  380-35c.  Suggestion  as  to  want  of  parties 

gence   was   within   the   issues,    and     both  below. — Southern    Pine     Lumber     Co.     z: 

parties    introduced    evidence    bearing     on  Ward,    208  U.  S.  126,   52  L.  Ed.   420,  28  S. 

that     question,      v^^ithout      objection.      San  Ct.  239.  affirming  16  Okl.  131.  So  P.  259. 

Juan   Light,   etc.,   Co.  v.   Requena,   224  U.  385-66a.     Rendering    and   ordering    final 

S.  89,  56  L.  Ed.  680,  32  S.  Ct.  399.  judgment.— Judgment    (C.    C.     A.      1908). 

380-35b.     Suggestion    that    another    the-  Thomas  v.  Green   County,  159  F.  339,  af- 

ory  might  have  changed  result. — Thomas  firmed.     Green  County  f.  Thomas,  211  U. 

t'    Tavlor    224   U.   S.   73.  56  L.   Ed.  673,   32  S.   598.   53   L.   Ed.   343,  29   S.   Ct.   168.     See 

S.  Ct.'  403.  post,  MANDATE  AND  PROCEEDINGS 

Directors   of  a   national  bank,  in  an   ac-  THEREON. 

141 


392-412 


APPEAL  AND  ERROR. 


Vol.  11. 


tions  urged  as  a  basis  for  reversal  have  been  so  plainly  foreclosed  by  the  de- 
cisions of  the  supreme  court  as  to  make  further  argument  unnecessary. ^^^ 

g.    Division  of  Opinion — (1)    In  General. — See  note  39. 

(4)  Force  and  Effect  of  Judgment — bb.  The  Rule  of  Precedents  or  Stare 
Decisis. — See  note  52. 

5y2.  Affirmance  without  PrFjudicf. — Where  the  ends  of  justice  require 
that  the  appellant's  right  to  further  relief  be  not  foreclosed  by  the  judgment  of 
affirmance,  the  appellate  court  may  affirm  without  prejudice  to  his  right  to  any 
such  relief. ^■^^ 

S.  Modification. — Power  to  modify,  on  appeal,  a  judgment  of  a  dis- 
trict court  in  mandamus,  is  included  in  the  grant  to  the  New  ]\Iexico  su- 
preme court  by  Comp.  Laws  N.  M.  1897,  §  897,  of  the  authority  to  render  such 
other  judgment  as  may  be  right  and  just  and  in  accordance  with  law  in  cases 
which  may  have  been  tried  by  the  equity  side  of  the  court,  or  which  may  have 
been  tried  by  a  jury  on  the  common-law  side  of  the  court,  or  in  which  a  jury 
may  have  been  waived  and  the  case  tried  by  the  court  or  judge.'*-*^ 

U.  Force  and  Effect  of  Decision — 1.  On  Second  Appeal — a.  In  General. 
— See  note  64. 


392-20a.  Contentions  urged  are  stare 
decisis. — Missouri  Pac.  R.  Co.  v.  Castle, 
224  U.  S.  541,  56  L-  Ed.  875,  32  S.  Ct.  606. 

395-39.  Upon  equal  division  among 
judges,  judgment  is  affirmed. — Hertz  v. 
Woodman,  218  U.  S.  205,  54  L.  Ed.  1001, 
30  S.   Ct.  621,  citing  early  cases. 

When  the  federal  supreme  court  in  the 
exercise  of  its  appellate  powers  is  called 
upon  to  decide  whether  that  which  has 
been  done  in  the  lower  court  shall  be  re- 
versed or  affirmed,  it  is  obvious  that  that 
which  has  been  done  must  stand  unless 
reversed  by  the  affirmative  action  of  a  ma- 
jority. Hertz  V.  Woodman,  218  U.  S.  205, 
212,  54  L.   Ed.  1001,  30  S.  Ct.  621. 

Therefore,  it  has  been  the  invariable 
practice  to  affirm,  without  opinion,  any 
judgment  or  decree  w*hich  is  not  decided 
to  be  erroneous  by  a  majority  of  the 
court  sitting  in  the  cause.  Hertz  z'. 
Woodman.  218  U.  S.  205,  212,  54  L.  Ed. 
1001,   30    S.    Ct.    621. 

Rule  in  England. — "A  diflferent  rule 
seems  to  have  been  sanctioned  in  the  Eng- 
lish courts.  Calherwood  z'.  Caslin,  13 
Meeson  &  Welby,  261;  Beemish  v.  Beem- 
ish,  9  H.  L.  Cases,  274."  Hertz  v.  Wood- 
man, 218  U.  S.  205,  213,  54  L.  Ed.  1001,  30 
S.    Ct.   621. 

397-52.  The  rule  of  precedents  or  stare 
decisis. — Under  the  precedents  of  the  su- 
preme court,  and  as  seems  justified  by 
reason  as  well  as  by  authority,  an  affirm- 
ance by  an  equally  divided  court  is  as  be- 
tween the  parties  a  conclusive  determina- 
tion and  adjudication  of  the  matter 
adjudged,  but  the  principles  of  law  in- 
volved not  having  been  agreed  upon  by 
a  majority  of  the  court  sitting  prevents 
the  case  from  becoming  an  authority  for 
the  determination  of  other  cases,  either  in 
the  supreme  or  in  inferior  courts.     Hertz 


V.  Woodman,  218  U.  S.  205,  213,  54  L.  Ed. 
1001,  30  S.   Ct.  621. 

397-54a.  Affirmance  without  prejudice. 
— Northern  Pac.  R.  Co.  v.  McCue,  216  U. 
S.  579,  54  L.  Ed.  624,  30  S.  Ct.  423,  af- 
firming State  t'.  Northern  Pac.  Ry.  Co., 
120    N.   W.    869. 

The  decree  of  a  state  court  enjoining  a 
carrier  from  further  violation  of  a  law 
fixing  rates  for  the  carriage  of  coal  within 
the  state,  over  the  objection  that  the 
maximum  rates  so  fixed  are  inadequate 
and  confiscatory,  will  be  affirmed  by  the 
federal  supreme  court,  where  the  evidence 
leaves  the  question  of  reasonableness  in 
doubt,  but  without  prejudice  to  the  right 
of  the  carrier  to  reopen  the  case  by  ap- 
propriate proceedings,  if,  after  adequate 
trial,  it  thinks  it  can  prove  more  clearly 
the  confiscatory  character  of  the  rates. 
Decree,  State  f.  Northern  Pac.  Ry.  Co. 
(1909),  120  N.  W.  869.  affirmed.  North- 
ern Pac.  R.  Co.  z'.  McCue,  216  U.  S.  579, 
54  L.  Ed.  624,  30  S.  Ct.  423,  following 
Willcox  z:  Consolidated  Gas  Co.,  212  U. 
S.   19,   53    L.    Ed.   382,   29    S.    Ct.   192. 

410-49a.  Modification  in  general. — Judg- 
ment, Territory  z'.  Board  of  Com'rs  of 
Santa  Fe  County  (N.  M.  1907).  89  P.  252, 
affirmed.  Commissioners  z'.  Coler,  215  U. 
S.  296,  54  L.  Ed.  202.  30  S.  Ct.  111. 

412-64.  On  second  appeal  in  general. — 
"In  the  absence  of  statute,  the  phrase, 
'law  of  the  case,'  as  applied  to  the  effect 
of  previous  orders  on  the  later  action  of 
the  court  rendering  them  in  the  same  case, 
merely  expresses  the  practice  of  courts 
generally  to  refuse  to  reopen  what  has 
been  decided,  not  a  limit  to  their  power. 
King  z'.  West  Virginia,  etc..  Lumber  Co., 
216  U.  S.  92,  100,  54  L.  Ed.  396,  30  S.  Ct. 
225;  Remington  7'.  Central  Pac.  R.  Co., 
198  U.  S.  95,  100.  49  L.  Ed.  959,  25  S.  Ct. 
577;  Great  Western  Tel.  Co.  v.  Burnham, 


142 


Vol.  II. 


APPEARANCE  BAIL. 


415-416 


Qualifications  of  Rule. — The  holding  of  a  territorial  supreme  court  on  the 
first  appeal  is  not  the  law  of  the  case  for  the  federal  supreme  court  when  re- 
viewing a  decree  rendered  on  the  second  appeal.*'"^  Nor  is  a  prior  decision  of 
a  federal  circuit  court  of  appeals  the  law  of  the  case  for  the  supreme  court 
when  reviewing  a  later  decision  of  the  former  court  in  the  same  case.^'"'' 

e.    Matters  Concluded — (1)    Jurisdictional  Matters. — See  note  75. 

APPEAL  BONDS.— See  ante,  Appeal  and  Error,  p.  34. 
APPEARANCE  BAIL.— See  post,  Bail  and  Recognizance. 


1(32  U.  S.  339,  343,  40  L.  Ed.  991,  16  S.  Ct. 
850."  Messenger  v.  Anderson,  225  U.  S. 
436,  56  L.  Ed.  1152,  32  S.  Ct.  739. 

"Of  course  this  court,  at  least,  is  free 
when  the  case  comes  here.  Panama  R. 
Co.  V.  Napier  Shipping  Co.,  166  U.  S.  280, 
41  L.  Ed.  1004,  17  S.  Ct.  572;  United  States 
V.  Denver,  etc.,  R.  Co.,  191  U.  S.  84,  48  L. 
Ed.  106,  24  S.  Ct.  33."  Messenger  z:  An- 
derson, 225  U.  S.  436,  56  L.  Ed.  1152,  32 
S.    Ct.   739. 

An  appeal  from  the  circuit  court  to  re- 
view an  order  refusing  to  modify  a  de- 
cree of  dismissal  of  a  bill  to  enjoin  the 
enforcement  of  a  municipal  ordinance,  en- 
tered pursuant  to  the  mandate  of  the  su- 
preme court  on  a  former  appeal,  so  as  to 
make  the  dismissal  without  prejudice,  will 
be  dismissed  for  want  of  jurisdiction. 
United  R.  Co.  z'.  St.  Louis,  220  U.  S.  607. 
55    L.    Ed.    607,    31    S.    Ct.    722. 

The  right  of  the  attorneys  for  the 
Cherokee  Nation  to  counsel  fees  payable 
out  of  the  moneys  recovered  for  the  bene- 
fit of  the  Eastern  Cherokees  in  a  suit  over 
a  claim  against  the  United  States,  arising 
out  of  treaty  stipulations,  can  not  be  chal- 
lenged by  a  supplemental  petition  filed  in 
the  court  of  claims,  where  the  decree  of 
that   court,   as   affirmed   on   appeal   by   the 


supreme  court,  has  determined  every  ques- 
tion bearing  upon  the  right  of  such  at- 
torneys to  have  their  fees  paid  out  of  the 
award,  save  the  single  question  of  the 
amount  of  such  fees.  Eastern  Cherokees 
V.  United  States,  225  U.  S.  572,  56  L.  Ed. 
1212.  32   S.   Ct.   707. 

415-67a.  Qualification  of  rule.^Zecken- 
dorf  V.  Steinfeld,  225  U.  S.  445,  56  L.  Ed. 
115G,  32  S.  Ct.  728. 

415-67b.  Prior  decision  of  federal  cir- 
cuit court. — Messenger  v.  Anderson,  225 
U.   S.   436,   56   L.   Ed.   1152,   32   S.    Ct.   739. 

416-75.  Matters  concluded.— The  de- 
cision of  the  federal  supreme  court  on  a 
former  appeal  that  the  lower  court  had 
jurisdiction  of  the  case  is  conclusive  on  a 
second  appeal.  Richardson  v.  Ainsa,  218 
U.  S.  289,  54  L.  Ed.  1044,  31  S.  Ct.  23,  af- 
firming decree  in  95  P.  103,  11  Ariz.  359. 

A  judgment  of  the  circuit  court  of  ap- 
peals affirming  a  conviction  does  not  pre- 
clude a  subsequent  reversal  for  want  of 
the  trial  court's  jurisdiction,  where  the 
question  is  not  presented  on  the  first  ap- 
peal. (C.  C.  1909),  Ex  parte  Harlan,  180 
F.  119,  decrees  affirmed  in  Harlan  7'.  Mc- 
Gourin,  218  U.  S.  442,  54  L.  Ed.  1101,  31 
S.   Ct.  44. 


143 


440  APPEARANCES.  '  Vol.  II. 


APPEARANCES. 

II.  Persons  Who  May  Appear,  144. 

4.  In  Suits  in  Rem,  144. 

III.  Mode  of  Making  and  Acts  Which  Constitute,  144 

A.  General  Appearance,   144. 

6.  Filing  Petition   for  Removal,   144. 
8.  Demurrer,   144. 
10.  Pleading  to  the  Merits,  144. 
a.  In  General,   144. 

B.  Special  Appearance,  145. 

IV.  Effect  of  Appearance,   145. 

A.  General  Appearance,  145. 

1.  Respecting  Jurisdiction,   145. 

a.  Jurisdiction  of  Subject  Matter,   145. 

b.  Jurisdiction  over  the  Person,  145. 

(1)  In  General,  145. 

2.  As  Waiving  Privilege  Respecting  Particular  Court,   145. 

3.  Summons  and  Process,  146. 

a.  Want  of  Process,   146. 

(2)  Nonservice  of  Process,   146. 
(a)   In  General,   146. 

c.  Defective  Service,  146. 

8.  Exemption    from   Arrest,    146. 

B.  Effect  of  Special  Appearance  with  Respect  to  Jurisdiction,  146. 

1.  Where  General  Rule  Obtains,  146. 

2.  State  Statutes  Making  Special  Equivalent  to  General  Appearance, 

146. 
c.  Not  Binding  on  Federal  Courts,  146. 

3.  Rules  of  Court  Treating  a  Special  as  a  General  Appearance,  146. 

CROSS   REFERENCES, 

See  the  title  Appearances,  vol.  2,  p.  429,  and  references  there  given. 
In  addition,  see  post.  Removal  of  Causes. 

II.  Persons  Who  May  Appear. 

4.    In  Suits  in  Rem. — See  post,  "Special  Appearance,"  III,  B. 
Ill,  Mode  of  Making  and  Acts  Which  Constitute. 

A.  General  Appearance — 6.  Filing  Petition  for  Removal. — See  post. 
Removal  of  Causes. 

8.  Demurrer. — The  objection  that  a  particular  federal  circuit  court  is  with- 
out jurisdiction  of  a  suit  between  citizens  of  different  states  because  neither  of 
the  parties  is  a  resident  of  the  district  is  waived  by  demurring  upon  grounds 
reaching  to  the  merits  of  the  cause  of  action  in  addition  to  jurisdictional  grounds, 
where,  under  the  local  practice,  defendant  could  have  made  a  special  appear- 
ance by  motion  aimed  at  the  jurisdiction  of  the  court  over  his  person,  or  by 
motion  to  quash  the  service  of  process.'*^ 

10.  Pleading  to  the  Merits — a.  In  General. — See  post,  "As  Waiving  Priv- 

440-43.    Demurrer.— Western  Loan,  etc.,   Co.  z'.  Butte,  etc.,  Min.  Co.,  210  U.  S.  368, 
52  L.  Ed.  1101,  28  S.  Ct.  730. 

144 


Vol.  II. 


APPEARANCES. 


442-448 


ilege  Respecting  Particular  Court,"  IV,  A,  2 ;  "Summons  and  Process  "  IV 
A,  3.  '     .     ' 

B.  Special  Appearance. — A  defendant  may  raise  the  objection  to  the  ju- 
risdiction over  his  person  by  making  a  special  appearance  by  motion  aimed  at 
the  jurisdiction  of  the  court  over  his  person  to  quash  the  service  of  process 
undertaken  to  be  made  upon  him  in  the  district  wherein  he  was  not  personally 
liable  to  suit  under  the  act  of  congress. ^*^ 

.  Motion  to  Set  Aside  Attachment. — A  person  over  whom  personal  juris- 
diction has  not  been  obtained  can  appear  specially  to  set  aside  an  attachment 
of   his  property. ^'^^ 

IV.    Effect  of  Appearance. 

A.  General  Appearance — 1.  Respecting  Jurisdiction — a.  Jurisdiction  of 
Subject   Matter. — See   note   51. 

b.    Jurisdiction  over  the  Person — (1)    In  General. — See  note  52. 

2.    As  Waiving  PrivilRgr  Respecting  Particular  Court. — See  note  62. 

Where  diversity  of  citizenship  exists,  so  that  the  suit  is  cognizable  in 
some  circuit  court,  the  objection  that  there  is  not  jurisdiction  in  a  particular 
district  may  be  waived  by  appearance  and  pleading  to  the  merits.*^-^ 


442-50.  Special  appearance. — Western 
Loan,  etc.,  Co.  v.  Butte,  etc.,  Min.  Co., 
210  U.  S.  368,  371,  52  L-  Ed.  1101,  28  S.  Ct. 
720,  following  Shaw  v.  Quincy  Min.  Co., 
145  U.  S.  444,  36  L.  Ed.  768,  12  S.  Ct.  935; 
Matter  of  Moore,  209  U.  S.  490,  503,  52 
L.   Ed.  904,  28   S.  Ct.  585,  706. 

In  Shaw  V.  Quincy  Min.  Co.,  145  U.  S. 
444,  36  L.  Ed,  768,  12  S.  Ct.  935,  the  par- 
ties were  "a  citizen  of  Massachusetts  and 
a  corporation  of  Michigan,  being  citizens 
of  states  other  than  New  York.  A  motion 
was  made  entering  a  special  appearance 
for  the  purpose  of  setting  aside  the  serv- 
ice. This  matter  of  raising  the  question, 
it  was  held,  did  not  amount  to  a  waiver 
of  the  objection  to  jurisdiction.  The  same 
course  was  pursued  with  the  approval  of 
this  court  in  In  re  Keasbey.  etc.,  Co.,  160 
U.  S.  221,  40  L.  Ed.  402."  Western  Loan, 
etc.,  Co.  V.  Butte,  etc.,  Min.  Co..  210  U. 
S.  368,  371,  52  L.  Ed.  1101,  28  S.  Ct.  720. 

Foreign  corporations. — Mechanical  Ap- 
pliance Co.  T'.  Castleman.  215  U.  S.  437, 
444,   54   L.   Ed.   272,   30   S.    Ct.    125. 

442-50a.  Motion  to  quash  attachment. 
— A  nonresident  defendant  over  wliom  per- 
sonal jurisdiction  has  not  been  obtained 
may  appear  specially  in  a  suit  in  a  federal 
circuit  court  for  the  sole  purpose  of  mov- 
ing to  quash  the  service  of  writs  of  at- 
tachment and  garnishment  upon  its  prop- 
erty in  the  district,  on  the  ground  that 
such  property  v/as  not  subject  to  attach- 
ment or  garnishment.  Davis  v.  Cleveland, 
etc.,  R.  Co..  217  U.  S.  157,  54  L.  Ed.  708, 
30   S.    Ct.   463. 

"The  jurisdiction  of  the  court,  *  *  * 
depended  upon  the  attachment,  and  the  ap- 
pearance to  set  that  aside  was  an  appear- 
ance to  obj.ect  to  the  jurisdiction.  In 
other  wcjrds.  the  defendant  was  only  in 
court  through  its  property,  and  it  appeared 

12   U   S   Enc— 10  145 


specially  to  show  that  it  was  improperly 
in  court."  Davis  v.  Cleveland,  etc.,  R.  Co., 
217  U.  S.  157,  174,  54  L.  Ed.  708,  30  S.  Ct. 
463. 

443-51.  Jurisdiction  of  subject  matter. 
—In  re  Winn,  213  U.  S.  458,  53  L.  Ed.  873, 
29  S.  Ct.  515,  is  a  case  where,  upon  its  face, 
no  circuit  court  of  the  United  States  had 
jurisdiction  of  the  controversy,  originally 
or  by  removal.  In  such  a  case  the  consent 
of  the  parties  can  not  confer  jurisdiction. 
Louisville,  etc.,  R.  Co.  v.  Mottley,  211  U. 
S.  149,  53  L.  Ed.  126,  29  S.  Ct.  42,  and  cases 
cited. 

A  general  appearance  by  the  plaintiff 
in  a  federal  circuit  court  after  the  cause 
has  been  removed  from  a  state  court  does 
not  waive  an  objection  to  the  jurisdiction 
founded  upon  the  total  lack  of  any  con- 
troversy of  a  federal  nature,  since  in  such 
cases  consent  of  both  parties  can  not  con- 
fer jurisdiction.  In  re  Winn,  213  U.  S. 
458.  53   L.  Ed.  873,  29  S.   Ct.  515. 

444-52.  Jurisdiction  of  person. — David- 
son Bros.  Marble  Co.  v.  United  States. 
213  U.  S.  10,  53  L.  Ed.  675,  29  S.  Ct.  324. 
327;  Mechanical  Appliance  Co.  v.  Castle- 
man, 215  U.  S.  437,  54  L.  Ed.  272,  30  S- 
Ct.   125. 

Foreign  corporations. — iMechanical  Ap- 
pliance Co.  f.  Castleman.  215  U.  S.  437. 
442,  54  L.  Ed.  272,  30  S.  Ct.  125. 

448-62.  Privilege  respecting  particular 
court. — Western  Loan,  etc.,  Co.  v.  Butte, 
etc..  Min.  Co.,  210  U.  S.  368,  372,  52  L.  Ed. 
1101,  28  S.   Ct.  720. 

448-62a.  Pleading  to  merits — Where  di- 
versity of  citizenship  exists. — flatter  of 
Moore,  209  U.  S.  490,  52  L.  Ed.  904,  28  S. 
Ct.  585,  706,  overruling  anything  to  the 
contrary  said  in  Ex  parte  Wisner.  203  U. 
S.  449,  51  L.  Ed.  264.  but  leaving  it  other- 
wise  untouched.      In    re   Winn,   213   U.    S. 


448-458 


APPEARANCES. 


Vol.  IL 


The  exemption  of  national  banks  from  suits  in  state  courts  established 
elsewhere  than  in  the  county  or  city  in  which  such  bank  is  located,  is  a  personal 
privilege  which  it  waives  by  appearing  and  making  defense  without  claiming 
the  immunity. ^2b 

3.  Summons  and  Process — a.  Want  of  Process — (2)  Nonservice  of  Process 
(a)  In  General. — Want  of  service  of  process  may  be  waived  by  a  defendant 
appearing  and  pleading  to  the  merits.^^'^ 

c.    Defectk'e  Service. — See  note  67. 

8.  Exemption  from  Arrest. — Exemption  from  arrest  in  a  district  in 
which  the  defendant  is  not  an  inhabitant,  or  in  which  he  is  not  found  at 
the  time  of  serving  the  process,  is  the  privilege  of  the  defendant,  which  he  may 
waive  by  a  voluntary  appearance.^"^ 

B.  Effect  of  Special  Appearance  with  Respect  to  Jurisdiction — 1. 
Where  General  Rule  Obtains. — See  ante,  "Special  Appearance,"  III,  B. 

2.  State  Statutes  Making  Special  Equivalent  to  General  Appearance 
— c.  Not  Binding  on  Federal  Courts. — A  state  statute,  giving  to  a  special  ap- 
pearance, made  solely  to  challenge  the  court's  jurisdiction,  the  effect  of  a  gen- 
eral appearance,  is  not  binding  upon  the  federal  courts  sitting  in  the  state,  not- 
withstanding the  provisions  of  §  914  of  the  Revised  Statutes  of  the  United 
States,  and  must  not  be  followed  by  the  courts  of  the  United  States.*^^ 

3.  Rules  oe  Court  Treating  a  Special  as  a  Gener.^l  Appearance. — A 
rule  of  a  federal  circuit  court  which  treats  as  a  general  appearance  a  special 
appearance  by  a  party  sued  in  the  wrong  federal  district,  made  solely  for  the 
purpose  of  objecting  to  the  jurisdiction,  without  stating  that,  if  the  purpose  for 
which  such  special  appearance  is  made  shall  not  be  sanctioned  or  sustained  by 
the  court,  he  will  appear  generally  in  the  case,  is  invalid,  as  substantially  impair- 
ing his  right  under  the  act  of  March  3,  1891,  §  5,  to  appear  specially  and  object 
to  the  jurisdiction  of  the  court,  and  bring  an  adverse  decision  directly  to  the 
supreme  court  for  review. •^^'' 


458,  5.3  L.  Ed.  873,  29  S.  Ct.  515; 
Western  Loan,  etc.,  Co.  f.  Butte,  etc.,  Min. 
Co.,  210  U.  S.  368,  369,  52  L.  Ed.  llOl,  28 
S.  Ct.   720. 

Foreign  corporation. — Mechanical  Ap- 
pliance Co.  f.  Castleman,  215  U.  S.  437, 
442.  54  L.  Ed.  272,  30  S.  Ct.  125. 

448-62b.  National  banks. — Matter  of 
Moore,  209  U.  S.  490,  502,  52  L.  Ed.  904, 
28  S.   Ct.  585,  706. 

449-64a.  Want  of  service. — Mechanical 
Appliance  Co.  r.  Castleman,  215  U.  S.  437, 
54  L.  Ed.  272,  30  S.  Ct.  125. 

451-67.  Defective  service. — Western 
Loan,  etc.,  Co.  v.  Butte,  etc.,  Min.  Co., 
210  U.  S.  368,  372,  52  L.  Ed.  1101,  28  S.  Ct. 
720. 

Foreign  corporations. — Mechanical  Ap- 
pliance Co.  V.  Castleman,  215  U.  S.  437, 
442.    54    L.    Ed.    272,    30    S.    Ct.    125. 

451-67a.  Exemption  from  arrest. — Mat- 
ter of  Moore,  209  U.  S.  490,  501.  52  L.  Ed. 
904,  28  S.   Ct.  585,  706. 

458-81a.  Not  binding  on  federal  courts. 
- — Western  Loan,  etc.,  Co.  7'.  Butte,  etc., 
Min.  Co.,  210' U.  S.  368,  369,  52  L.  Ed.  1101, 
28  S.  Ct.  720,  following  Mexican  Cent.  R. 
Co.  V.  Pinkney,  149  U.  S.  194,  37  L.  Ed. 
699,  13  S.  Ct.  859;  Davidson  Bros.  Marble 


Co.  v.  United  States,  213  U.  S.  10,  53  L. 
Ed.  675,  29  S.  Ct.  324.  327,  approving 
Southern  Pac.  Co.  v.  Denton,  146  U.  S 
202,  36  L.  Ed.  943,  13  S.  Ct.  44;  Galves- 
ton, etc.,  R.  Co.  V.  Gonzales.  151  U.  S. 
496.  38  L.  Ed.  248,  14  S.  Ct.  401.  See  post, 
COURTS. 

458-81b.  Rules  of  court  treating  special 
as  general  appearance. — Davidson  Bros. 
]\Iarbie  Co.  :•.  United  States,  213  U.  S.  10, 
53  L.  Ed.  675,  29  S.  Ct.  324,  26  Stat,  at  L. 
826,  chap.  517,  U.  S.  Comp.  Stat.  1901,  p. 
488,   §   5. 

"It  is  bej^ond  the  power  of  the  circuit 
court  to  make  and  enforce  a  rule  which 
imposes  upon  defendants  such  conditions, 
and  transforms  an  objection  to  the  juris- 
diction into  a  waiver  of  the  objection  it- 
self. The  jurisdiction  of  the  circuit  courts 
is  fixed  by  statute,  *  *  *  and  a  defend- 
ant can  not  be  compelled  to  waive  an  ob- 
jection to  the  jurisdiction  over  his  person 
if  he  chooses  seasonably  to  insist  upon  it, 
and  any  rule  of  court  which  seeks  to  com- 
pel a  waiver  is  unauthorized  by  law  and  in- 
valid." Davidson  Bros.  Marble  Co.  t'. 
United  States.  213  U.  S.  10,  53  L.  Ed.  675, 
29  S.  Ct.  324.  327. 


146 


Vol.  II. 


ARBITRARY  CLASS  I  PICA  TION. 


461 


APPRAISEMENT.— See  note  la. 

APPROPRIATE.— See  note  3. 

ARBITRARY  CLASSIFICATION.— See  post,  Constitutionai.  Law. 


461-la.  Arbitration  and  appraisement 
distinguished. — "An  arbitration  implies  a 
difference,  a  dispute,  that  involves  or- 
dinarily a  hearing  and  all  thereby  implied. 
The  right  to  notice  of  hearings,  to  pro- 
duce evidence  and  cross-examine  that  pro- 
duced is  implied  when  the  matter  to  be 
decided  is  one  of  dispute  and  difference. 
But  when,  as  here,  the  parties  had  agreed 
that  one  should  sell  and  the  other  buy  a 
specific  thing,  and  the  price  should  be  a 
valuation  fixed  by  persons  agreed  upon,  it 
can  not  be  said  that  there  was  any  dis- 
pute or  difference.  Such  an  arrangement 
precludes  or  prevents  difference,  and  is 
not  intended  to  settle  any  which  has 
arisen.  This  seerns  to  be  the  distinction 
between  an  arbitration  and  an  appraise- 
ment, though  the  first  term  is  often  used 
when  the  other  is  more  appropriate." 
Omaha  v.  Omaha  Water  Co.,  218  U.  S. 
180,  194,  54  L.  Ed.  991,  30  S.  Ct.  615.  See 
post,  ARBITRATION  AND  AWARD. 

The  valuation  of  a  waterworks  plant, 
made  by  a  board  of  appraisers  where  a 
municipality  has  elected,  under  legislative 
authority,  to  exercise  its  option  to  pur- 
chase at  a  value  to  be  determined  by  three 
engineers,  one  each  to  be  selected  by  the 
city  and  the  waterworks  company,  and 
the  third  by  the  two  so  selected,  is  not 
vitiated  in  the  absence  of  any  evidence  of 
actual  bad  faith,  by  the  examination  of 
the  company's  books  by  the  appraisers 
without  the  consent  of  the  city  or  the 
presence  of  its  representatives.  If  this 
was  a  technical  arbitration  of  a  matter  of 
dispute  or  difference  between  the  parties, 
to  be  heard  and  decided  upon  the  evidence 
admitted,    the   action    of     the     appraisers 


would  be  such  misconduct  as  would 
vitiate  the  award.  In  such  matters  the 
rule  relating  to  judicial  inquiry  would  ap- 
ply. But  in  an  appraisement,  such  as  that 
herein  involved,  the  strict  rules  relating 
to  arbitration  and  awards  do  not  apply, 
and  the  appraisers  are  not  so  rigidly  re- 
quired to  confine  themselves  either  to  mat- 
ters within  their  own  knowledge  or  to 
those  submitted  to  them  formally  in  the 
presence  of  the  parties;  but  might  reject, 
if  they  saw  fit,  evidence  so  submitted,  and 
inform  themselves  from  any  other  source, 
as  experts  who  were  at  last  to  act  upon 
their  own  judgment.  Omaha  z'.  Omaha 
Water  Co.,  218  U.  S.  180,  54  L.  Ed.  991,  30 
S.  Ct.  615. 

461-3.  Lands  reserved  and  appropriated, 
—In  art.  2,  Treaty  of  Jan.  31,  1855, 
whereby  the  Wyandotte  Nation  ceded 
their  land  to  the  United  States  for  sub- 
division in  severalty  to  the  members,  "ex- 
cept as  follows,  viz,  the  portion  now 
enclosed  and  used  as  a  public  burying 
ground,  shall  be  permanently  reserved  and 
appropriated  for  that  purpose;"  etc.,  the 
words  "shall  be  permanently  reserved  and 
appropriated  for  that  purpose,"  like  the 
rest  of  the  treaty,  were  addressed  only  to 
the  tribe  and  rested  for  their  fulfillment 
on  the  good  faith  of  the  United  States — 
a  good  faith  that  would  not  be  broken 
by  a  change  believed  by  congress  to  be 
for  the  welfare  of  the  Indians.  A  disposi- 
tion of  the  property  under  an  act  of  con- 
gress could  not  be  enjoined.  Conlev  v. 
Ballinger,  216  U.  S.  84,  88,  54  L.  Ed.  393,  30 
S.  Ct.  224.  See  post,  INDIANS;  TREA- 
TIES. 


147 


471-478  ARGBNTINB   CONFEDERATION.  Vol.  11. 


ARBITRATION  AND  AWARD. 

IV.  The  Submission,   148. 

C.  Basis  and  Scope  of   Submission,    148. 

1.  Necessity  for  Dispute  or  Controversy  between  Parties,   148. 

VII.  Hearing  before  Arbitrators,   148. 

A.  Necessity  for  Hearing  in  Presence  of  Parties,  148. 
VIII.  The  Award,  148. 

B.  Validity  of  Award  by  Majority  of  Arbitrators,  148. 

CROSS   REFERENCES. 

See  the  title  Arditration  and  Award,  vol.  2,  p.  464,  and  references  there 
given. 

IV.  The  Submission. 

C.  Basis  and  Scope  of  Submission — 1.  Necessity  egr  Dispute  or  Con- 
troversy BETWEEN  Parties. — See  note  20. 

VII.    Hearing  before  Arbitrators. 

A.  Necessity  for  Hearing  in  Presence  of  Parties. — See  note  61. 

VIII.  The  Award. 

B.  Validity  of  Award  by  Majority  of  Arbitrators. — See  note  70. 

ARGENTINE  CONFEDERATION.— See  post,  Executors  and  Administra- 
tors. 

471-20.     "An    arbitration    implies    a    dif-  out  being  guilty  of  misconduct, 
ference,  a  dispute,  and  involves  ordinarily  478-70.    Validity   of   award   by   majority 

a  .  hearing     and     all     thereby     implied."  of  arbitrators. — When  a  matter  of  purely 

Omaha   v.    Omaha   Water    Co.,   318    U.    S.  private    concern    is    submitted    to    the    de- 

180,  54  L.  Ed.  991,  30  S.  Ct.  615.  termination   of  either  arbitrators,    or     ap- 

477-61.  Right  to  hearing  in  presence  of  praisers,  the  rule  seems  to  be  that  there 
parties. — The  right  to  notice  of  hearings,  must  be  unanimity  of  conclusion  by  such 
to  produce  evidence,  and  cross  examine  board,  unless  otherwise  indicated  by  the 
that  produced  is  implied  when  the  matter  terms  of  the  submission.  The  rule  is. 
to  be  decided  is  one  of  dispute  and  dif-  however,  otherwise  when  the  submission 
ference.  Omaha  v.  Omaha  Water  Co.,  is  one  which  concerns  the  public.  In  such 
218  U.  S.  180,  54  L.  Ed.  991,  30  S.  Ct.  615,  submissions,  whether  it  be  the  arbitration 
in  which  case  the  court  held  that  in  the  of  a  difference  or  the  ascertainment  of  a 
case  of  an  appraisal  such  rule  did  not  ap-  value,  a  majority  inay  act,  imless  other- 
ply,  but  the  appraisers  might  properly  ex-  wise  indicated  by  the  agreement  for  sub- 
amine  books  and  papers  relating  to  the  mission.  Omaha  v.  Omaha  Water  Co., 
property  in  the  absence  of  counsel,  with-  218  U.  S.  180,  54  L.  Ed.  991,  30  S.  Ct.  615. 

148 


Vol.  II. 


ARISE. 


489-492 


ARGUMENT  OF  COUNSEL 
I.  Control  of  Argument  by  Court,  149. 
C.  Interruption  of  Argument,   149. 

II.  Latitude  of  Argument,   149. 

CROSS   REFERENCES. 

See  the  title  Argument  of  Counsel,  vol.  2,  p.  489,  and  references  there 
given. 

I.  Control  of  Argument  by  Court. 

C.  Interruption  of  Argument. — The  court  may  properly  interrupt  counsel 
to  ask  him  to  make  an  argument  that  does  not  tend  to  degrade  the  administra- 
tion of  justice. ^'^ 

II.  Latitude  of  Argument. 

Comment  on  Admission  of  Evidence. — Any  comment  by  counsel  which  is 
practically  an  impeachment  of  a  ruling  of  the  court  on  the  admission  of  evi- 
dence is  improper.3^ 

Comment  on  Written  Statement  Made  Part  of  Evidence. — A  written 
statement  made  a  part  of  a  witness'  testimony  is  a  proper  subject  of  comment.-'*'' 

ARISE.— See  note  1. 


489-2a.    Interruption  of  argument. — The 

court  properly  interrupts  counsel  to  ask 
him  to  make  an  argument  that  does  not 
tend  to  degrade  the  administration  of 
justice,  where  counsel  is  appealing  to  race 
prejudice,  and  is  asking  the  jury  to  be- 
lieve a  white  man  not  on  his  oath  before 
a  negro  who  is  sworn,  adding  that  the 
jury  can  "swallow  those  niggers"  if  it 
wishes,  but  counsel  will  not.  Judgment, 
United  States  z'.  Battle  (C.  C.  1907),  154 
F.  540,  affirmed.  Battle  v.  United  States, 
209  U.  S.  .36,  52  L.  Ed.  670.  28  S.  Ct.  422. 

489-3a.  Comments  on  admission  of  evi- 
dence.— Thus  it  is  improper  for  counsel 
for  the  accused  in  a  criminal  case  to  argue 
to  the  jury  that  the  accused  have  been  sub- 
stantially deprived  of  their  constitutional 
right  to  be  confronted  by  the  witnesses 
against  them.     Hyde  f.  United  States,  35 


App.  D.  C.  451,  writ  of  certiorari  granted 
in  Hyde  v.  United  States,  218  U.  S.  681. 
54   L.    Ed.    1207,   31    S.    Ct.   228. 

489-3b.  Written  statement  admitted  to 
be  true. — Where  a  witness  for  the  prose- 
cution in  a  criminal  case  admits  that  a 
written  statement  made  by  him  before  the 
trial,  and  read  to  him  at  the  trial,  is  true, 
he  makes  the  statement  a  part  of  his  testi- 
mony, and  the  statement  is  a  proper  sub- 
ject of  comment  by  the  prosecuting  of- 
ficer in  his  argument  to  the  jury.  Hyde 
V.  United  States.  35  App.  D.  C.  451,  writ 
of  certiorari  granted.  Hyde  v.  United 
States,  218  U.  S.  681,  54  L.  Ed.  1207.  31 
S.    Ct.    228. 

492-1.  Arise. — Cases  arising  under  the 
constitution  of  laws  of  the  United  States, 
see  ante,  APPEAL  AXD  ERROR,  p.  34; 
post,  COURTS;   REVENUE  LAWS. 


149 


504-507  ARMY  AND  NAJ'Y.  Vol.  II. 


ARMY  AND  NAVY. 

VI.  Officers,  150. 

F.  Pay  and  Allowances,   150. 
1.  Pay,  150. 

c.  Amount,  150. 

(1)  Army   Officers.    150. 
(g)   Longevity  Pav.  150. 

(2)  Naval  Officers,   15"0. 

(c)  Increased   Pay   for  Foreign   Service,   150. 
(c>4)  Additional  Pay  to  Aid  to  Admiral,  150. 

(d)  Additional  Pay  to  Aid  to  Rear  Admiral,  151. 
(h)   Longevity  Pay,  151. 

aa.  In  General,  151. 

dd.  In    What    Grade    Prior    Services    Are    to    Be 
Treated  as  Having  Been  Rendered,   151. 
(j)   Assistant  Surgeons,  152. 
f.  Recovery  Back  of  Amount  Improperly  Paid  to  Officer,   152. 
K.  Dismissal,  152. 

1.  Dismissal  of  Officers,  152. 

c.  Relief  of  Officer  Wrongfully  Dismissed,  152. 

CROSS  REFERENCES. 

See  the  title  Army  and  Navy,  vol.  2,  p.  494,  and  references  there  given. 
As  to  taxation  of  money  received  by  a  naval  officer  as  salary  and  deposited 
in  bank,  see  post.  Taxation. 

VL  Officers. 

F.  Pay  and  Allowances — 1.  Pay — c.  Amount — (1)  Army  Officers — (g) 
Longevity  Pay. — The  calculation  of  the  longevity  pay  of  officers  of  the  army 
under  the  act  of  May  13,  1908,  3S  Stat.  127,  c.  166,  should  be  made  on  the  sum 
of  the  base  pay  and  not  the  base  pay  and  previous  increases  thereof."*^^ 

(2)  Naval  Officers — (c)  Increased  Pay  for  Foreign  Service. — An  officer  on 
duty  beyond  seas  is  not  entitled  to  the  extra  ten  per  cent,  allowed  to  officers 
of  the  navy  detached  for  shore  duty  beyond  seas,  while  in  hospital  and  not 
rendering  service. ^'^^  And  when  an  officer  is  detached  from  one  service  and 
assigned  to  another,  he  is  not  considered  as  attached  to  the  latter  until  he  enters 
upon  his  duties.^^*" 

(c5^)  Additional  Pay  to  Aid  to  Admiral. — An  officer  of  the  navy  serving  as 
aid  to  the  admiral  is  not  entitled,  under  the  assimilating  provisions  of  the  Navy 
Personnel  Act,  to  the  higher  rank  and  pay  of  aid  to  the  general  of  the  army, 
when  that  office  existed,  irrespective  of  actual  rank  of  such  naval  officer  during 

504-45a.     Longevity    pay.— Plummer     v.  United  States  and  assigned  to  another  be- 

United    States,   224   U.    S.    137,   56   L.    Ed.  yond  seas  his  pay  will  be  only  shore  pay, 

697.  32  S.  Ct.  467.     See  post,  "In  General."  as  if  within   the  continental  limits  of  the 

VI.  F,  1,  c,  (2).  (h).  aa.  United    States,    until  he    enters    upon    the 

_    507-65a.    Increased  pay  for  foreign  serv-  new  duties  to  which  he  is  assigned.    An  of- 

ice.— Farenhalt  v.  United  States,  42  Ct.  CI.  iicer  detached  from  one  service  is  not  at- 

114,  judgment  affirmed.     United  States  v.  tached    to    another    until    he    enters    upon 

Farenholt.  206  U.   S.  226,  51  L.  Ed.  1036.  its  duties.     Farenholt  v.  United  States,  42 

27  S.  Ct.  629.  Ct.  CI.    114.    judgment    affirmed  in    United 

507-65b.    Detached  from  one  service  and  States  i:  Farenholt,  206  U.  S.  226,  51  L.  Ed. 

assigned  to  another.— Where  a  naval  offi-  1036,  27  S.  Ct.  629. 
cer  is  detached  from  one  duty  within   the 

150 


Vol.  II. 


ARMY  AXD  NAVY. 


507-511 


his  period  of  service  as  such  aid.'^^'^  The  statute  which  created  the  office  of 
general  of  the  army  ceased  to  be  effective  by  reason  of  death  of  the  general  of 
the  army,  since  which  time  there  has  been  no  such  office  to  which  pay  of  aids  to 
the  admiral  of  the  navy  can  be  assimilated.^^"*  And  the  fact  that  the  pay  of 
all  other  naval  officers  is  assimilated  to  the  corresponding  army  officers,  except 
the  aids  to  the  admirals,  is  a  matter  which  must  be  corrected,  if  it  is  corrected, 
by  congress  and  not  by  the  court.^^^ 

(d)    Additional  Pay  to  Aid  to  Rear  Admiral. — See  note  66. 

(h)  Longevity  Pax — aa.  In  General. — The  calculation  of  the  longevity  pay 
of  officers  of  the  navy  under  the  act  of  :\Iay  13,  1908,  35  Stat.  127,  c.  166, 
should  be  made  on  the  sum  of  the  base  pay  and  not  the  base  pay  and  pre- 
vious increases  thereof.'*^^  It  has  been  said  in  this  connection  that  where  con- 
gress passes  a  statute  declaring  that  certain  words  shall  be  construed  as  having 
a  definite  meaning  different  from  the  construction  already  given  by  the  court, 
that  those  words,  when  used  in  a  later  statute  on  the  same  subject,  will  be  pre- 
sumed to  have  the  meaning  so  given  to  it  by  congress.'''^'' 

dd.  In  What  Grade  Prior  Services  Are  to  Be  Treated  as  Having  Been  Ren- 
dered.— Under  the  statute  the  calculation  of  an  officer's  longevity  pay  is  to  be 
made  on  the  yearly  pay  affixed  by  law  to  the  grades  or  rank  to  which  the  officer 
belongs  and  not  upon  his  increased  allowance  as  an  aid  to  a  rear  admiral. ^^'^ 


50r-65c.  Additional  pay — Aid  to  ad- 
miral.—\\'ood  V.  United  States.  2.24  U.  S. 
1.32,  .56  L.   Ed.  G96,  32   S.   Ct.  461. 

507-65d.  Statute  repealed  by  virtue  of 
death  of  officer. — Wood  v.  United  States. 
224  U.   S.   132,  .56  L.   Ed.  696.  32  S.  Ct.  461. 

507-65e.  Correction  of  the  discrepancy. 
—Wood  z:  United  States,  224  U.  S.  132,  56 
L.   Ed.  696,  32   S.  Ct.  461. 

507-66.  Additional  pay  to  aid  to  rear  ad- 
miral.—Wood  c'.  United  States,  224  U.  S. 
132,  56  L.  Ed.  696,  32  S.  Ct.  461. 

A  naval  officer  assigned  to  duty  on  the 
personal  staff  of  the  commander  in  chief 
on  the  Pacific  station  as  flag  lieutenant, 
and  bj"  no  other  designation,  is  an  aid  and 
entitled  to  the  additional  pay  of  $200  given 
to  the  aid  of  a  major  eeneral  in  the  army 
by  Rqv.  St.,  §  1261  [UT  S.  Comp.  St.  1901, 
p.  8931.  (1906)  Miller  v.  United  States,  41 
Ct.  CI.  400,  judgment  affirmed  in  United 
States  V.  Miller.  208  U.  S.  32,  52  L.  Ed.  376. 
28  S.  Ct.  199. 

A  lieutenant  in  the  navy,  assigned  to 
duty  on  the  personal  staff  of  a  rear  ad- 
miral as  flag  lieutenant,  is  entitled  to  the 
extra  pay  due  an  aid  of  the  rear  admiral, 
although  he  is  not  technically  designated 
as  an  aid  in  the  provisions  of  the  navy 
regulations,  1896.  §§  343-345,  authorizing 
such  selection,  and  although  such  regula- 
tions expressly  provide  for  the  selection 
of  juniors  to  the  flag  lieutenant  to  serve 
as  aids.  Judgment.  Miller  v.  United  States. 
41  Ct.  CI.  400,  affirmed.  United  States  v. 
Miller.  208  U.  S.  32.  52  L.  Ed.  376,  28  S.Ct. 
199,  modifying  judgment  Miller  v.  United 
States,  42  Ct.  CI.  121. 

509-76a.  Longevity  pay  in  general. — 
Plummer  z:  United  States.  224  U.  S.  137. 
56  L.  Ed.  697,  32  S.  Ct.  467. 


509-76b.  Construction  given  by  con- 
gress.— Plummer  v.  United  States,  224  U. 
S.  137.  56  L.  Ed.  697,  32  S.  Ct.  467. 

"Current  yearly  pay." — The  act  of  June 
30,  1882,  22  Stat.  118,  c.  254,  expressly  pro- 
vided that  the  current  yearly  pay  on  which 
longevity  pay  of  officers  of  the  army  and 
navy  is  to  be  computed  is  base  pay,  and 
not  base  pay  and  increases.  This  does 
away  with  the  construction  given  to  the 
words  "current  yearly  pay''  in  United 
States  z:  Tyler,  105  U.  S.  244,  26  L.  Ed. 
985.  The  phrase  should  be  construed  in 
the  same  manner  when  used  in  the  subse- 
quent act  of  May  13,  1908.  35  Stat.  125,  c. 
166.  and  not  as  construed  in  United  States 
V.  Tyler,  45  Ct.  CI.  614.  reversed.  Plum- 
mer V.  United  States.  224  U.  S.  137.  56  L. 
Ed.  697,  32  S.  Ct.  467. 

511-85a.     Computation  of  longevity  pay. 

—United  States  :•.  Miller,  208  U.  S.  32.  52 
L.  Ed.  376.  28  S.  Ct.  199,  modifying  Miller 
V.  United  States.  41  Ct.  CI.  400. 

"In  the  case  of  United  States  v.  Tyler. 
105  U.  S.  244,  26  L.  Ed.  985,  this  court  held 
that  current  yearly  pay  upon  which  lon- 
gevity increase  was  to  be  computed  should 
include  previous  longevity  increases,  and 
in  United  States  r.  Mills,  197  U.  S.  223,  49 
L.  Ed.  732,  it  was  held  that  the  ten  per 
cent  increase  upon  'pay  proper'  of  the 
compensation  of  officers  serving  beyond 
the  continental  limits  should  be  computed 
upon  the  total  amount  which  the  officer 
was  entitled  to  receive  at  the  time  of  such 
service,  both  for  longevity  pay  and  the 
pay  provided  by  §  1261,  Rev.  Stat."  United 
States  V.  Miller.  208  U.  S.  32,  37,  52  L.  Ed, 
376.  28  S.   Ct.  199. 


151 


512-545 


ARTIFICIAL  COLORATION. 


Vol.  11- 


(j)  Assistant  Surgeons. — The  pay  of  acting  assistant  surgeons  was,  by  the 
Navy  Personnel  Act  and  subsequent  acts,  enhanced  and  assimilated  to  that  of 
assistant  surgeons  in  the  army,  and  did  not  remain  fixed  as  regulated  by  §  1556, 
Rev.  Stat.9"^ 

f.  Recovery  Back  of  Amount  Improperly  Paid  to  Officer. — Sums  improvi- 
dently  paid  to  an  army  officer  by  the  auditor  for  the  war  department  can  not  be 
deducted  from  the  extra  pay  sued  for  in  the  court  of  claims,  where  the  United 
States  filed  no  set-off  or  counterclaim. '^i^ 

K.  Dismissal— 1.  Dismissal  of  Officers — c.  Relief  of  Officer  IVrongfully 
Dismissed. — See  note  81. 

ARRAIGN.— See  note  1. 

ARREST. — See  the  title  Arrest,  vol.  2,  p.  541,  and  references  there  given.  In 
addition,  see  post.  Imprisonment  for  Debt.  As  to  congressional  privileges  from 
arrest,  see  post.  Privilege. 

ARRESTMENT.— See  post.  Attachment  and  Garnishment. 

ARREST  OF  JUDGMENT.— See  ante.  Appeal  and  Error,  p.  34;  post, 
judgments  and  Decrees. 

ARTICLE.— See  note  2. 

ARTIFICIAL  COLORATION.— See  note  la. 


512-90a.  Assistant  surgeons. — Plummer 
z,'.  United  States.  224  U.  S.  137,  56  L.  Ed. 
697,  32  S.   Ct.  467. 

The  Navy  Personnel  Act  of  1899,  pro- 
vides for  a  standard  by  which  to  determine 
rank  and  pay  of  officers,  and  it  will  not  be 
presumed  that  congress  intended  to  create 
an  inequality  of  compensation  while  leav- 
ing unmodified  equality  of  rank  and  duty. 
The  provisions  for  pay  of  assistant  sur- 
geons and  acting  assistant  surgeons  in  the 
navy,  is  determined  under  the  statute  ac- 
cording to  this  construction.  Plummer  i'. 
United  States,  224  U.  S.  137,  56  L.  Ed.  697. 
32  S.  Ct.  467. 

Contemporaneous  construction  of  stat- 
ute by  department. — Plummer  v.  United 
States,  224  U.  S.  137,  56  L.  Ed.  697,  32  S. 
Ct.  467. 

516-lla.  Recovery  back  of  money  paid. 
—United  States  t'.  Mitchell,  205  U.  S.  161, 
51  L.  Ed.  752.  27  S.  Ct.  463,  reversing  Mit- 
chell V.  United  States.  41  Ct.  CI.  36.  See, 
also,  post,  PAY^IEXT. 

527-81.  Relief  of  officer  wrongfully  dis- 
missed.— As  to  certiorari  to  correct  deci- 
sions of  military  tribunals,  see  ante,  AP- 
PEAL AND  ERROR,  p.  34. 

540-1.  Arraign. — Johnson  v.  United 
States,  225  U.  S.  405,  410,  56  L.  Ed.  1142, 
32  S.  Ct.   748. 

No  implicit  provision  as  to  what  con- 
stitutes arraignment. — "There  is  no  ex- 
plicit provision  in  the  laws  of  the  United 
States  describmg  what  shall  constitute  an 
arraignment.  But  so  far  as  it  is  expressed 
it  has  a  definite  meaning.  By  §  1032  of 
the  Revised  Statutes  it  is  provided  that 
'when  any  person  indicted  for  any  ofifensp 
against  the  United  States,  whether  capital 
or  otherwise,  upon  his  arraignment  stands 
mute,     or    refuses    to     plead     or     answer 


thereto,  it  shall  be  the  duty  of  the  court 
to  enter  the  plea  of  not  guilty  on  his  be- 
half, in  the  same  manner  as  if  he  had 
pleaded  not  guilty  thereto.  And  when  the 
party  pleads  not  guilty,  or  such  plea  is 
entered  as  aforesaid,  the  cause  shall  be 
deemed  at  issue,  and  shall,  without  further 
form  or  ceremony,  be  tried  by  the  jury.' 
It  will  be  observed  that  the  word  arraign- 
ment is  used  as  comprehensively  descrip- 
tive,of  what  shall  precede  the  plea.  If  it 
be  so  used  in  the  law,  it  certainly  can  be 
used  in  the  record  as  showing  the  per- 
formance of  that  which  the  law  prescribes 
by  it."  Johnson  z:  United  States,  225  U. 
S.  405,  410,  56  L.  Ed.  1142,  32  S.  Ct.  748. 
See  post.  CRniTXAL  LAW. 

Record  showing  arraignment. — The  rec- 
ord sufliciently  shows  that  the  indictment 
was  read  to  the  accused,  where,  after  re- 
citing the  presence  of  the  attorney  for  the 
United  States,  the  defendant  in  a  proper 
person  and  by  his  attorney,  it  adds  that 
"thereupon  the  defendant,  being  arraigned 
upon  the  indictment,  pleads  thereto  not 
guilt}',  at  the  trial  puts  himself  upon  the 
country  and  the  attorney  for  the  United 
States  doth  the  like."  Johnson  v.  United 
States,  225  U.  S.  405,  56  L.  Ed.  1142,  32 
S.    Ct.    748. 

544-2.     Articles  of  food.— See   DRUGS. 

545-la.  Ingredients  of  oleomargarine. — 
"When  any  substance,  although  named  as 
a  possible  ingredient  of  oleomargarine,  sub- 
stantially serves  only  the  function  of  color- 
ing the  mass  and  so  as  to  cause  the  prod- 
uct to  'look  like  butter  of  any  shade  of 
yellow,'  it  is  an  artificial  coloration." 
Moxley  r.  Hertz,  216  U.  S.  344,  353,  54 
L.   Ed.  510,   30  S.   Ct.   305. 

Oleomargarine  made  to  look  like  butter 
of  a  shade  of  yellow  by  the  use  of  one- 


152 


Vol.  II. 


ASSIGNMENTS. 


563 


ARTS. — See  post.  Patents  ;   Revenue  Laws. 
_  ASSAULT  AND  BATTERY.— See  the  title  Assault  and  Battery,  vol.  2,  p. 
546,  and  references  there  given. 

ASSESSMENTS.— See  post,  Special,  Assessments. 

ASSIGNMENTS. 
II.  Modes,  Requisites  and  Validity,  153. 

C.  Parties  to  Assignment,  153. 

D.  Subject  Alatter  of  Assignment,  153. 

2.  Choses  in  Action,  153. 

c.  Modern   Doctrine,    153. 

(3)    Particular  Choses  in  Action,   153. 

(c)   Claims  against  United  States,   153. 
(e)   Insurance  Policies,   153. 
(i)    Future    Wages,    154. 

CROSS  REFERENCES. 

See  the  title  Assignments,  vol.  2,  p.  549,  and  references  there  given. 

II.  Modes,  Requisites  and  Validity. 

C.  Parties  to  Assignment. — A  state  may,  under  proper  conditions,  pre- 
scribe that  an  assignment  by  a  married  man  of  wages  to  be  earned  by  him  in 
future  shall  be  invalid  unless  consented  to  by  his  wife  on  the  ground  that  she 
has  an  interest  in  the  right  use  of  his  wages  though  she  has  no  legal  title  in 
them.^"^ 

D.  Subject  Matter  of  Assignment — 2.  Choses  in  Action — c.  Modern 
Doctrine — (3)  Particular  Choses  in  Action — (c)  Claims  against  United  States. 
— As  to  assignment  of  claims  against  the  United  States,  see  the  title  United 
States. 

(e)  Insurance  Policies. — As  to  assignment  of  insurance  policies,  see  the  in- 
surance titles  throughout  this  work. 


half  of  one  per  cent  of  palm  oil,  a  vege- 
table oil  recognized  as  a  possible  in- 
gredient by  the  second  section  of  the  act 
of  August  2,  1886,  is  not  "free  from  arti- 
ficial coloration"  within  the  meaning  of 
the  proviso  of  §  8  of  that  act,  as  amended 
by  the  act  of  May  9,  1902,  imposing  a  les- 
sor tax  on  oleomargarine  when  free  from 
artificial  coloration  that  causes  it  to  look 
like  butter  of  any  shade  of  yellow,  al- 
though the  addition  of  such  palm  oil  may 
give  the  product  a  slightlj^  better  grain  or 
texture,  and  a  slightly  better  physiolog- 
ical effect  upon  those  who  eat  it,  where, 
but  for  its  coloring  power,  it  probably 
would  not  have  been  used.  Moxley  v. 
Hertz,  216  U.  S.  344.  54  L.  Ed.  510,  30  S. 
Ct.  305.     See  post,  REVENUE  LAWS. 

563-57a.  Parties  to  assignment. — Mu- 
tual Loan  Co.  r.  Martell,  222  U.  S.  225,  56 
L.  Ed.  175,  32  S.  Ct.  74. 

The  form  and  manner  of  execution  and 
authentication  of  legal  instruments  in  re- 
gard to  property,  its  devolution  and  trans- 
fer, is  the  proper  subject  matter  for  state 
legislation.  Mutual  Loan  Co.  v.  Martell, 
222  U.  S.  225,  56  L.  Ed,  175,  32  S.  Ct.  74; 
Arnett  v.  Reade,  220  U.  S.  311,  55  L.  Ed. 


477,  31  S.  Ct.  425. 

Legal  restrictions  may  be  placed  by  a 
state  on  the  liberty  of  contract  in  many 
cases,  and  the  supreme  court  will  not  in- 
terfere except  in  a  clear  case  of  abuse  of 
power.  Mutual  Loan  Co.  z'.  Martell,  222  U. 
S.  225.  56  L.  Ed.  175.  32  S.  Ct.  74;  Chicago, 
etc.,  R.  Co.  z:  McGuire,  219  U.  S.  549,  55 
L.  Ed.  328,  31  S.  Ct.  259. 

The  wide  range  of  discretion  of  state 
legislatures,  in  classifying  objects  of  leg- 
islation, has  often  been  discussed  and  it 
is  held  that  even  if  the  classification  be  not 
scientifically  nor  logically  appropriate,  if 
it  is  not  palpably  arbitrary  and  is  uniform 
within  the  class,  it  does  not  deny  equal 
protection.  Mutual  Loan  Co.  v.  'Martell, 
222  U.  S.  225,  56  L.  Ed.  175.  32  S.  Ct.  74. 

The  supreme  court  has  expressed  "the 
propriety  of  deferring  to  tribunals  on  the 
spot"  and  does  not  oppose  its  notions  of 
necessity  to  legislation  adopted  by  such 
legislatures  for  the  accomplishment  of  le- 
gitimate purposes.  Mutual  Loan  Co.  z: 
Martell.  222  U.  S.  225,  56  L.  Ed.  175.  32  8. 
Ct.  74;  Laurel  Hill  Cemetery  v.  San  Fran- 
cisco, 216  U.  S.  358,  54  L.  Ed.  515.  30  L.  Ed. 
301. 


153 


568-631 


ASSISTANCE,   WRIT  OF. 


Vol.  ir 


(i)  Future  IVages.— Assignments  of  future  wages  may,  under  the  proper 
exercise  of  the  police  power,  be  rendered  invalid  unless  made  under  conditions 
that  will  properly  restrict  extravagance  and  improvidence  of  wage  earners.s2^ 

ASSIGNMENTS  FOR  BENEFIT  OF  CREDITORS. 

V.  Preference  of  Creditors,   154. 
B.  Effect  of  Statutes,  154. 

2    As  to  Preferences  by  Separate  Instruments  Prior  to  Assignment, 
154. 

CROSS  REFERENCES. 

See  the  title  Assign me;nts  for  Benefit  of  Creditors,  vol.  2,  p.  599,  and 
references  there  given. 

V.  Preference  of  Creditors. 

B.  Effect  of  Statutes — 2.  As  to  Preferences  by  Separate  Instruments 
Prior  to  Assignment. — See  note  53. 


ASSIGNS.— See  note  1. 

ASSISTANCE,  WRIT  OF.— See  the  title  Assistance,  Writ  of,  vol.  2, 
and  references  there  given. 


p.  632, 


568-82a.  Future  wages. — Mutual  Loan 
Co.  V.  Martell,  222  U.  S.  225,  56  L.  Ed.  175, 
32  S.  Ct.  74.  See  ante,  "Parties  to  Assign- 
ment," II,  C. 

614-53.  Validity  of  preferences  by  prior 
conveyances,  etc.,  made  in  good  faith, — 
Under  the  law  of  Porto  Rico,  contracts 
made  by  an  insolvent  debtor  which  were 
not  fraudulent  simulations  because  made 
upon  adequate  consideration,  are  not  sus- 
ceptible of  being  rescinded  merely  because 
their  execution  operated  a  preference  in 
favor  of  a  creditor.  Will  v.  Tornabells, 
217  U.  S.  47,  54  L.  Ed.  660,  30  S.  Ct.  424. 

631-1.  Copyright  laws.— Section  4552,  U. 
S.  Rev.  Stat.,  as  amended  by  the  Act  of 
March  3,  1891,  provides  that  "the  author, 
inventor,  designer,  or  proprietor"  of  cer- 
tain copj^rightable  things  therein  men- 
tioned, and  the  "executors,  administrators, 
or  assigns  of  any  such  persons  shall,  upon 
complying  with  the  provisions  of  this 
chapter  have  the  sole  liberty  of  printing, 
*  *  *  publishing,  *  *  *  and  vending  the 
same."  The  word  assigns  in  this  section 
is  not  used  as  descriptive  of  the  character 
of  the  estate  which  the  "author,  inventor, 
designer  or  proprietor,"  may  acquire  un- 
der the  statute,  for  the  assigns  or  any 
such  person,  as  well  as  the  persons  them- 
selves, may,  "upon  complying  with  the 
provisions  of  this  chapter,"  have  the  sole 
liberty  of  printing,  publishing  and  vend- 
ing the  same.  This  demonstrates  the  in- 
tention of  congress  to  vest  in  assigns  be- 
fore copyright,  the  same  privilege  of 
subsequently  acquiring  complete  statutory 


copyright  as  the  original  author,  inventor, 
designer,  or  proprietor  has.  Hence  the 
artist  may,  before  publication  of  his 
painting,  assign,  independently  of  the 
ownership  of  the  painting  itself,  the  right 
or  privilege  of  taking  out  a  copyright 
secured  by  the  statute.  American  Tobacco 
Co.  V.  Werckmeister,  007  U.  S.  284,  52  L. 
Ed.  208,  28  S.  Ct.  72;  Bong  v.  Campbell 
Art  Co.,  214  U.  S.  236,  53  L.  Ed.  979,  29 
S.  Ct.  628.     See  post,  COPYRIGHT. 

Public  lands. — An  assign,  within  the 
meaning  of  the  Act  of  June  16,  1880,  pro- 
viding for  repayment  of  purchase  price  of 
land  by  government  on  cancellation  of 
entry,  is  one  who  becomes  invested  with 
the  entryman's  right  in  the  land  through 
some  voluntary  act  of  his.  United  States 
V.  Colorado  Anthracite  Co.,  225  U.  S.  219, 

223,  56  L.  Ed.  1063.  32  S.  Ct.  617.  See 
post.  PUBLIC  LANDS. 

The  court  accepts  the  decision  of  the 
land  department  that  the  words  assigns 
and  assignors  in  the  Act  of  March  3,  1891. 
amending  the  desert  land  Act  of  March 
3.  1877,  evidenced  the  intention  of  con- 
gress to  remove  the  restriction  of  the 
earlier  act  upon  the  assignment  of  the 
desert  land  entry,  and  was  not  merely  in 
recognition  of  the  right  that  every  entry- 
man  has  under  the  public  land  laws  of  the 
United  States  to  make  an  assignment 
after  he  has  acquired  the  equitable  right 
to  the  land  embraced  within  his  entry. 
United  States  z:  Hammers.  221  U.  S.  220, 

224.  55  L.  Ed.  710,  31  S.  Ct.  593.  See  post, 
PUBLIC  LANDS. 


154 


Vol.  II. 


AT. 


658 


ASSOCIATIONS.— See  the  title  Associatioxs,  vol.  2,  p.  633,  and  references 
there  given.  In  addition,  as  to  a  state's  revocation  of  a  social  club  charter  for 
violation  of  the  liquor  laws  being  an  impairment  of  the  obligation  of  contracts, 
see  post,  Impairment  of  Obligation  of  Contracts.  As  to  associations  being 
classified  with  corporations  in  a  tax  measure  such  as  the  corporation  tax,  see 
post,  Taxation. 

_  ASSUMPSIT.— See  the  title  Assumpsit,  vol.  2,  p.  636,  and  references  there 
given. 

ASSUMPTION  OF  RISKS.— See  post,  ^Iastfr  and  Servant. 

AT.— See  note  2. 


658-2.  "At"  or  "near."— Where  an  act 
contemplates  to  railroad  connections  "at 
or  near"  a  certain  place,  a  distance  of  four 
miles  was  held  to  be  reasonablj'  within  the 
terms  of  the  act.  Union  Pac.  R.  Co.  z\ 
Mason  City,  etc.,  R.  Co..  222  U.  S.  237. 
245.  56  L.  Ed.  180.  32  S.  Ct.  86.  See  post. 
INTERSTATE  AND  FOREIGN  COM- 
MERCE. 

At  the  expiration  of  a  specified  period. 
— A  charter  granting  a  privilege  for  main- 
taining toll  gates  provided  that  the  privi- 
leges granted  in  the  charter  should 
continue  for  fifty  years,  with  the  proviso 
that  the  county  courts  of  certain  desig- 
nated counties  may,  "at  the  expiration  of 
twenty  years,  or  at  any  time  thereafter, 
purchase  said  road  at  the  actual  cost  of 
construction  and  make  it  a  free  road." 
The  words  of  purchase,  "at  the  expiration 
of  twenty  j'ears,  or  at  any  time  there- 
after." do  not  convey  the  meaning  that 
the  express  limitation  of  fifty  years  be 
done  away  with  in  the  same  section  that 
imposes  it,  but  must  be  read  subject  to 
that  more  specific  phrase,  even  if  "an}^ 
time  thereafter"  practically  is  cut  down  to 
any  time  within  the  fifty  years,  so  far  as 
its  value  to  the  grantee  is  concerned.  It 
was  a  reservation  in  favor  of  the  county, 
not  the  grant  of  a  new  right  to  the  grantee, 
and  its  operation  is  suf^cient  if  as  ex- 
tensive as  the  need.  Scott  Count}',  etc.. 
Road  Co.  V.  Hines,  215  U.  S.  336.'  54  L. 
Ed.   221,   30   S.   Ct.   110.     See  post.   COR- 


PORATIONS; TURNPIKES  AND 
TOLLROADS. 

Devisees    living    at    testator's    death. — 

Where  a  testator  in  a  will  provided  that 
on  the  death  or  marriage  of  the  last  of 
his  daughters,  "I  direct  that  said  estate 
shall  be  sold  by  my  executors  and  the 
proceeds  thereof  be  distributed  by  my 
said  executors  among  my  daughters  liv- 
ing at  my  death  and  their  children  and 
descendants  (per  stirpes),"  the  words  liv- 
ing at  my  death  may  not  be  disregarded. 
They  are  not  to  be  eliminated  in  the  in- 
terest of  a  construction  which  would  leave 
the  clause  as  though  it  read,  "among  my 
daughters  who  shall  be  living  at  the  time 
of  the  death  or  marriage  of  my  last  un- 
married daughter  and  the  children  or  de- 
scendants (per  stirpes)  of  such  of  my 
daughters  as  may  have  previously  died." 
At  the  time  of  the  death  of  the  testator 
his  five  daughters  were  living  and  none 
of  them  had  children  or  descendants.  By 
the  definite  language  of  the  clause,  these 
daughters  were  then  ascertained  and  iden- 
tified as  those  entitled  to  the  immediate 
enjoyment  of  the  property  on  the  termi- 
nation of  the  preceding  estate.  They, 
therefore,  had  a  vested  remainder  in  fee. 
Johnson  z:  W'ashington  Loan.  etc..  Co.. 
224  U.  S.  224.  56  L.  Ed.  741.  32  S.  Ct.  421. 
See  post.  REMAINDERS,  REVER- 
SIONS AND  EXECUTORY  IN- 
TERESTS. 


155 


664-665  ATTACHMBXr    AXD    GARNISHMENT.  Vol.  II. 


ATTACHMENT  AND  GARNISHMENT. 

I.  Definitions  and  General  Consideration,   156. 
A.  Definitions,   156. 
C.  Nature,  156. 

2.  Mesne  Process,   156. 

3.  Attachment   and    Execution    Contrasted,    157. 
F^.  Alias  Attachments,  157. 

II.  Jurisdiction,  157. 

C.  Conflict  between   State  and  Federal  Jurisdiction,   157. 

5.  As  Affected  by  Rules  Regulating  Interstate  Commerce,  157. 

IX.  The  Writ  or  Order,  157. 

H.  Execution  of  \\'rit  or  Order.  157. 
1.  Service  of  Copy  of  Writ,   157. 

XIII.  Notice,   157. 

A.  Notice  by   Publication,    157. 

CROSS   REFERENCES. 

See  the  title  Attachment  and  Garnishment,  vol.  2,  p.  660,  and  references 
there  given. 

In  addition,  see  ante,  Appeal  and  Error,  p.  34;  post,  Estoppel;  Seaman; 
Summons  and  Process;    Waiver. 

As  to  following  decisions  of  state  courts  in  matters  of  attachment,  see  post, 
Courts.  As  to  attachment  of  property  engaged  in  interstate  commerce,  see 
post.  Interstate  and  Foreign  Commerce.  As  to  attachment  of  seamen's 
wages,  see  post,  Seamen. 

I.  Definitions   and   General   Consideration. 

A.  Definitions. — "The  word  'attachment,'  as  ordinarily  understood  in  Amer- 
ican law,  has  reference  to  a  writ  the  object  of  which  is  to  hold  property  to  abide 
the  order  of  the  court  for  the  payment  of  a  judgment  in  the  event  the  debt  shall 
be  established. "^'^ 

The  word  "arrestment"  is  of  Scottish  origin  and  pertains  to  obligations 
due  arrester's  debtor.^'' 

C.  Nature — 2.  Mesne  Process. — See  notes  8,  9. 

664-la.     Definition  of  attachment.— Wil-  person  holds  for  behoof  of  his  debtor.     It 

der  V.  Inter-Island,  etc.,  Nav.  Co.,  211  U.  bears  a  general  resemblance  to  foreign  at- 

vS.  239,  245,^53  L.  Ed.  164,  29  S.  Ct.  58.  tachment    by    the     custom    of    London.'" 

664-lb.     "'Arrestment,'   a  word   derived  Wilder  z'.  Inter-Island,  etc.,  Nav.  Co.,  211 

from    the    English    statute,    is    a    word    of  U.  S.  239,  246.  53  L.  Ed.  164,  29  S.  Ct.  58. 

Scotch  origin    and  derived  from  the  Scot-  665-8.    Attachment  is  a  mesne  process.- 

ush    law,    and    thus    defined    by    Bouvier:  ^^^^^  .^,    inter-Island,  etc.,  Nav.  Co.,  211 

The  order  of  a  judge,  by  which  he  who  is  u.  S.  239,  245.  53  L.  Ed.  164,  29  S.  Ct.  58. 

debtor  in  a  movable  obligation  to  the  ar-  nm:  n.      a  ^. '   u         ^  •              i     •      -j      .  i 

Tester's  debtor  is  prohibited  to  make  pay-  ^^^J^"     Attachment  is  merely  mcidental. 

ment   or  delivery  till  the   debt   due  to  the  7.    .  """        '<^  Ubarri.  214  U.   S.  173,  53   L. 

arrester  be  paid  or  secured.     Erskine,  Inst.  '  ^^  ^'  ^^'  ^^~- 

3,  6.  1;  1,  2,  12.  Where  arrestment  pro-  "'Unless  the  suit  can  be  maintained,  the 
ceeds  on  a  depending  action  it  may  be  attachment  must  fall.'  Ex  parte  R.  Co., 
loosed  by  the  common  debtor's  giving  se-  1^3  U.  S.  794,  796,  26  L.  Ed.  461.  'Unless 
curity  to  the  arrester  for  his  debt,  in  the  the  suit  can  be  maintained'  means,  of 
event  it  shall  be  found  due.'  And  in  the  course,  unless  the  court  has  jurisdiction 
Century  Dictionary  it  is  defined  to  be:  'A  over  the  person  of  the  defendant."  Lab- 
process  by  which  a  creditor  may  attach  orde  v.  Ubarri,  214  U.  S.  173,  53  L.  Ed.  955, 
money  or  movable  property  which  a  third  29  S.  Ct.  552. 

156 


Vol.  II. 


ATTEST  ATI  OX 


665-688 


3.  Attachment  axd  Execution  Contrasted. — See  note  10. 
F|.  Alias  Attachments. — There  is  no  provision  for  alias  attachments  in  the 
Territory  of  Xew  ^lexico.^"'' 

II.  Jurisdiction. 

C.  Conflict  between  State  and  Federal  Jurisdiction — 5.  As  Affected 
EY  Rules  Regulating  Interstate  Commerce. — As  to  jurisdiction  of  state 
courts  as  affected  by  rules  regulating  interstate  commerce,  see  post.  Interstate 
AND  Foreign  Commerce. 

IX.  The  Writ  or  Order. 

H.  Execution  of  Writ  or  Order — 1.  Service  of  Copy  of  Writ. — Agents 
of  Nonresident  Railroad  Company. — Service  on  the  division  superintendent 
of  a  nonresident  railroad  company  is  sufficient  under  the  A'ermont  statute.^''*^ 

XIII.   Notice. 

A.  Notice  by  Publication. — Attachment  Prior  to  Publication. — The  at- 
tachment must  precede  the  publication.^"^ 

ATTEMPTS  AND  SOLICITATIONS  TO  COMMIT  CRIME.— See  the  title 
Attempts  and  Solicitations  to  Commit  Crime,  vol.  2,  p.  702.  and  references 
there  given. 

ATTESTATION.— See  ante.  Acknowledgments,  p.  7. 


665-10.  Attachment  and  execution  con- 
trasted.— "An  attachment  has  but  few  of 
the  attributes  of  an  execution;  the  execu- 
tion contemplated  by  the  statute  being 
the  judicial  process  for  obtaining  the  debt 
or  damage  recovered  by  judgment,  and 
final  in  its  character,  while  the  attachment 
is  but  mesne  process,  liable  at  any  time  to 
be  dissolved,  and  the  judgment  upon  which 
may  or  may  not  aflfect  the  propertj'  seized."' 
Wilder  f.  Inter-Island,  etc..  Xav.  Co.,  211 
U.  S.  239,  245,  53  L.  Ed.  164,  29  S.  Ct.  58; 
quoting  with  approval  ^Ir.  Justice  Alvey 
in  Thomson  z-.  Baltimore  and  Susque- 
hanna Steam  Co.,  33  Md.  312,  318.  See 
post.  EXECUTIONS. 

Neither  of  the  words  "attachment"  or 
"arrestment,"  considered  literallj'.  have 
reference  to  executions  or  proceedings  in 
aid  of  execution  to  subject  property  to  the 
paj^ment.  of  judgments,  but  refer,  to  the 
process  of  holding  property  to  abide  the 
judgment.  Wilder  f.  Inter-Island,  etc., 
Xav.  Co.,  211  U.  S.  239,  53  L.  Ed.  164.  29 
S.  Ct.  58. 

666-17a.  Alias  unauthorized  in  the  Ter- 
ritory of  New  Mexico. — The  statutes  of 
the  Territory  of  Xew  Mexico  distinguished 
between  original  and  ancillar}^  attach- 
ments. Sections  2686  and  2721  of  the 
Compiled  Laws  of  New  Mexico.  There 
is  no  provision  for  an  alias  attachment, 
and  it  has  been  decided  by  the  supreme 
court  of  the  Territory  that  an  alias  attach- 
ment is  not  authorized.  The  implication 
of  the  statute  is  against  it;  certainly 
against  it  except  upon  filing  a  new  affidavit 
and  bond  and  a  nev.-  publication  of  notice. 


Crary  z:  Dye,  208  U.  S.  515.  516,  52  L.  Ed. 
595.  28  S.  Ct.  3(10. 

680-19a.  Service  on  division  superin- 
tendent of  a  railroad. — The  division  super- 
intendent of  a  nonresident  railroad  coin- 
pany  is  a  "known  agent"'  of  such  company 
within  the  meaning  of  V.  S.  1109,  provid- 
ing for  the  service  of  attachment,  although 
he  may  not  be  a  person  upon  whom,  pur- 
suant to  section  3948,  service  of  process 
generally  upon  such  corporation  may  be 
made.  Judgment,  149  F.  42.  79  C.  C.  A.  64. 
affirmed.  Boston,  etc..  Railroad  z\  Gokev, 
210  U.  S.  155.  52  L.  Ed.  1002,  28  S.  Ct.  6.57. 

688-80a.  Attachment  must  precede  pub- 
lication.— An  alias  attachment,  even  if  au- 
thorized by  the  X'ew  ]^Iexico  statutes,  can 
not  support  a  judgment,  where  such  at- 
tachment did  not  precede  publication,  as 
is  required  by  the  scheme  provided  by 
those  statutes  for  the  commencement  of 
actions  by  attachment.  "The  attachment 
must  precede  the  publication  and  consti- 
tutes the  ground  of  publication.  The  sum- 
mons to  the  defendant  is  through  his  prop- 
erty and  does  not  extend  beyond  it.  The 
only  consequence  of  his  default  is  the  sale 
of  the  property  attached,  not  some  other 
property  or  property  attached  subse- 
quently to  publication.  The  publication 
can  not  be  ordered  until  the  execution  oi' 
the  writ  of  attachment  and  its  return." 
Dve  V.  Crary  (N.  M.  1906).  85  P.  1038.  9 
L."  R.  A.  (N.  S.)  1136,  affirmed  in  Crary  r. 
Dye,  208  U.  S.  515,  52  L.  Ed.  595.  28  S.  Ct. 
360.  See  post,  SUMMONS  AND  PROC- 
ESS. 


15"; 


706-724  ATTORNEY  AND  CLIENT.  Yo\.  II. 


ATTORNEY  AND  CLIENT. 

II.  Admission,  158. 

A.  Eligibility.   158. 

B.  Qualifications  for  Admission,  158. 

1.  In  General,  158. 

XL  Compensation  for  Services,   158. 

A.  Right  of  Attorney  to  Compensation,   158. 

2.  Under  Express  Contract,  158. 

b.  Contracts   for  Contingent  Fees,   158. 

d.  \''alidity  as  Dependent  on  Nature  of   Service  Contemplated. 
159. 

C.  Allowance  from  Funds  in  Court,  159. 

D.  Recovery,  159. 

E.  Construction  of  Contract  between  Attorney  of  Record  and  Associate 

Counsel  as  to  Fees,  159. 

XII.  Lien  of  Attorney,   160. 

2.  On  Judgments  or  Decrees,  160. 

CROSS  REFERENCES. 

See  the  title  Attorxky  and  Client,  vol.  2,  p.  703,  and  references  there  given. 

XL  Admission. 

A.  Eligibility. — Right  to  Practice  Not  Property. — The  right  to  practice 
law  was  not  embraced  in  the  provision  of  the  treaty  of  peace  with  Spain  of 
December  10,  1898,  art.  8,  that  the  cession  of  sovereignty  can  not,  in  any  re- 
spect, impair  the  property  rights  which,  by  law,  belong  to  the  peaceful  pos- 
session of  property  of  all  kinds. ^* 

B.  Qualifications  for  Admission — 1.  In  Gene^ral. — The  military  gov- 
ernor of  the  Philippine  Islands  was  authorized  to  prescribe  as  a  political 
qualification  to  practice  law  in  those  islands  that  the  applicant  should  not  be  a 
citizen  or  subject  of  any  foreign  government. ^^^ 

XL  Compensation  for  Services. 
A.  Right  of  Attorney  to  Compensation — 2.  Under  Express  Contract — 
b.  Contracts  for  Contingent  Fees. — See  note  84. 

706-8a.     Right  to  practice  not  property.  A    Spanish    lawyer   who  had    previously 

— Bosque  v.  United  States,  209  U.  S.  91,  52  been  denied  permission  to  practice  law  by 

L.      Ed.    698,    28    S.     Ct.    501.    See     post,  the    supreme    court  of    the   Philippine    Is- 

TREATIES.                         _  lands,    upon    the    ground    that    he    did    not 

70J-13a.     Power  of  military  governor  of  possess  the  political  qualifications  required 

Philippine    Islands    to    prescribe    political  by  law,  was  not  entitled  to  such  permis- 

qualification. — Bosque    f.     United     States,  sion  by  virtue  of  the  provisions   of  Code 

209  U.  S.  91.  52  L.  Ed.  698,  28  S.  Ct.  501.  Civ.  Proc.  Philippine  Islands,  §  13,  for  the 

A  Spanish  lawyer  may  be  denied  per-  admission  to  practice  of  those  "not  spe- 
mission  to_  practice  by  the  supreme  court  cially  declared  ineligible,"  who  have  been 
of  the  Philippine  Islands  because  he  did  duly  licensed  under  the  laws  and  orders 
not  possess  the  political  qualifications  re-  of  the  islands,  under  the  sovereignty  of 
quired  by  law,  although  this  is  not  one  of  Spain  or  of  the  United  States,  and  are  "in 
the  grounds  recognized. by  Code  Civ.  Proc.  good  and  regular  standing  as  members  of 
Philippine  Islands,  §  13,  for  depriving  a  the  bar  of  the  Philippine  Islands  at  the 
lawyer  of  the  right  to  practice,  since  these  time  of  the  adoption  of  this  Code."  Bos- 
grounds  relate  solely  to  the  removal  or  que  v.  United  States,  209  U.  S.  91,  52  L. 
suspension   from  the   bar  of   attorneys   al-  Ed.  698,  28  S.  Ct.  501. 

ready  practicing.    Bosque  v.  United  States,  724-84.  Substantial  compliance  with  con- 

209  U.  S.  91,  52  L.  Ed.  698,  28  S.  Ct.  501.  tract  as  entitling  to  fee.— The  condition  in 

158 


Vol.  II. 


ATTORNEY  AND  CLIENT. 


725-730 


d.  Validity  as  Dependent  on  Nature  of  Services  Contemplated. — See  notes 
88,  90. 

C.  Allowance  from  Funds  in  Court. — Where  litigation  is  over  a  fund  aris- 
ing from  treaty  stipulations,  and  supposed  to  be  in  the  United  States  treasury 
in  trust  for  the  parties  entitled  thereto,  such  fund,  being  the  stake  in  contro- 
versy, should  bear  the  expense. ^"^ 

Stipulation  in  Suit  by  United  States  as  to  Allowance  of  Defendant's 
Counsel  Fees. — A  stipulation  or  agreement  by  the  United  States  as  to  the 
allowance  for  counsel  fees  and  other  expenses  out  of  funds  in  court  into  which 
the  illicit  gains  of  its  agent  have  been  paid  is  valid  and  binding  upon  the  gov- 
ernment.^'^ 

D.  Recovery.— Recovery  by  Administrator  of  Attorney  for  His  Own 
and  Intestate's  Services. — The  estate  of  an  attorney  who  agreed  to  divide 
the  net  fees  received  in  the  prosecution  of  French  spoliation  claims,  in  consid- 
eration of  the  exclusive  use  of  certain  papers,  may  be  required  to  account  for 
fees  received  for  services  performed  by  his  administrator,  where  the  accounting 
has  been  treated  by  both  parties  as  one  proper  to  be  made  for  the  whole 
period. ^*^^ 

Laches  in  Suit  for  Accounting. — Failure  to  bring  suit  for  an  accounting 
under  an  agreement  to  divide  the  net  attorneys'  fees  received  in  the  prosecu- 
tion of  French  spoliation  claims  until  two  years  after  the  enactment  of  the 
appropriation  act  of  March  3.  1899  (30  Stat,  at  L.  1161.  1191,  chap.  426,  U.  S. 
Comp.  Stat.  1901,  p.  751),  from  which  payment  might  be  made,  is  not  such 
laches  as  defeats  a  recovery. ^•^'' 

E.  Construction  of  Contract  between  Attorney  of  Record  and  Asso- 
ciate Counsel  as  to  Fees. — A\'here  an  attorney  of  record  and  his  associate 
counsel  conducting  litigation  in  the  court  of  claims  provide  by  contract  that  if 


a  contract  to  pay  an  attorney  in  a  will  con- 
test a  stipulated  fee  "in  case  the  will  is  de- 
feated and  our  clients  get  their  shares"  is 
satisfied  where  the  contest  and  the  at- 
torney's services  result  in  a  compromise 
agreement  by  which  the  will,  which,  as 
propounded,  disinherited  such  clients,  was 
so  qualified  in  probate  that  thej^  received 
a  larger  proportion  of  the  estate  than  if 
the  testator  had  died  intestate.  Decree, 
Coram  v.  Ingersoll.  148  Fed.  169,  78  C.  C. 
A.  303,  reversed.  Ingersoll  v.  Coram,  211 
U.  S.  335,  53  L.  Ed.  208,  29  S.  Ct.  92. 

725-88.  Preparation  and  advocation  of 
claims.— Earle  v.  Myers,  207  U.  S.  244,  52 
L.  Ed.  191,  28  S.  Ct.  86. 

726-90.  Lobbying  contracts  void. — 
Earle  v.  Mvers.  207  U.  S.  244,  52  L.  Ed. 
191.  28  S.  Ct.  86.  See  pest,  ILLEGAL 
CONTRACTS. 

730-8a.  Litigation  over  funds  in  United 
States  Treasury  arising  from  treaty  stipu- 
lations.— Eastern  Cherokees  v.  United 
States.  225  U.  S.  572,  50  L.  Ed.  1212,  32  S. 
Ct.  707.  quoting  from  opinion  of  Peele,  C. 
J.,  in  45  Ct.  CI.  104,  130,  131.  and  holding 
that  under  the  decree  of  the  court  of 
claims,  as  afifirmed  by  the  supreme  court, 
the  attorneys  for  the  Cherokee  Nation 
were  entitled  to  be  paid  their  fees  on  the 
amount  of  the  recovery,  including  the 
items  recovered  in  the  name  of  the  nation 
for  the  Eastern  Cherokees. 


730-8b.  Stipulation  by  United  States  al- 
lowing defendant's  counsel  fees  from  fund. 

— The  condition  upon  which  the  United 
States  agreed  to  allowances  for  counsel 
fees  and  other  expenses  out  of  funds  in 
court  into  which  the  illicit  gains  of  its 
agent  had  been  traced,  viz.,  the  turning 
over  by  the  defendants  to  the  receiver  of 
all  assets  which  had  not  been  theretofore 
"bona  fide  disposed  of  by  them,  and  there- 
fore beyond  their  control,"  was  not  so 
violated  as  to  defeat  the  right  to  such  al- 
lowances by  the  insistence  by  the  defend- 
ants upon  a  credit  for  all  disbursements 
made  bj^  them  in  defense  of  the  suit  and 
in  the  care  of  the  property  in  their  hands, 
and  for  sums  retained  by  them  as  compen- 
sation for  their  services.  Decree,  172  F.  1, 
96  C.  C.  A.  587,  affirmed.  United  States 
V.  Carter,  217  U.  S.  286,  54  L.  Ed.  769.  30 
S.  Ct.  515. 

730-lOa.  Recovery  by  administrator  of 
attorney  for  services  of  himself  and  intes- 
tate.—Earle  r.  ]\[vers,  207  U.  S.  244,  52  L. 
Ed.  191.  28  S.  Ct.  86. 

730-lOb.  Suit  for  accounting  held 
brought  within  reasonable  time. — Earle  i . 
Myers,  207  U.  S.  244,  52  L.  Ed.  191.  28  S. 
Ct.  86,  holding  that  in  the  case  at  bar  two 
years  was  not  unreasonable.  See  post, 
LACHES. 


159 


730 


AUDITA   QUERELA. 


Vol.  II. 


the  fees  in  such  litigation  are  not  provided  for  by  legislation  but  are  required 
1o  be  proved,  each  party  must  look  out  for  himself,  and  the  fees  a,re  allowed 
in  full  by  the  court  of  claims,  such  allowance  dispenses  with  proof  of  services 
such  as  was  contemplated  by  the  contract  and  the  associate  counsel  is  entitled 
lo  his  agreed  proportion  of  the  fee  under  the  contract. ^'^'^ 

Xn.  Lien  of  Attorney. 

2.  On  Judgments  or  De^crees. — See  note  14. 

ATTORNEY  GENERAL.— See  the  title  Attorney  General,  vol.  2,  p.  739, 
and  references  there  given. 

AUCTIONS  AND  AUCTIONEERS.— See  the  title  Auctions  and  Auction- 
eers, vol.  2,  p.  743,  and  references  there  given. 

AUDITA  QUERELA.— See  the  title  Audita  Querela,  vol.  2,  p.  749,  and  ref- 
erences there  given. 


730-lOc.  Contracts  for  division  between 
attorneys,  and  apportionment. — The  fees 
of  the  attorney  of  record  for  the  Eastern 
Cherokees  were  provided  for  by  law, 
within  the  meaning  of  a  contract  between 
him  and  his  associate  counsel,  by  which 
he  was  to  pay  his  associates  a  specified 
sum  for  their  services  out  of  his  stipulated 
fees,  upon  collection  thereof,  provided 
that,  "in  the  contingency  of  the  fees  not 
being  provided  for  by  legislation  *  *  *  but 
upon  proof  of  services,"  each  party  should 
look  out  for  himself,  where  his  fees  were 
allowed  in  full  by  the  court  of  claims,  un- 
der the  authority  of  the  subsequent  act 
(Act  March  3,  1903,  c.  994,  32  Stat.  996), 
since  such  statute,  though  not  directly  fix- 
ing the  fees,  dispensed  with  the  necessity 
of  making  proof,  under  Rev.  St.  U.  S.,  §§ 
2103,  2106,  before  the  commissioner  of  In- 


dian affairs  and  the  secretary  of  the  inte- 
rior, which  must  have  been  the  "proof  of 
services"  conteinplated  by  the  parties. 
Owen  V.  Dudley,  217  U.  S.'488,  54  L.  Ed. 
851,  30  S.  Ct.  602,  affirming  judgment  Dud- 
ley V.  Owen  (1908),  31  x\pp.  D.  C.  177. 

730-14.  Lien  for  contingent  fee. — An 
agreement  to  pay  a  stipulated  fee  for  legal 
services  to  be  rendered  in  a  will  contest, 
contingent  upon  success,  which  agreement, 
by  way  of  exception  in  favor  of  one  of  the 
signers,  stipulated  against  any  other  lia- 
bility on  his  part  than  to  pay  such  fee  "out 
of  the  funds  secured  from  the  estate," 
gives  the  attorney,  in  case  his  efforts  are 
successful,  an  equitable  lien  on  such  funds 
for  his  fee.  Decree,  Coram  v.  Ingersoll, 
148  Fed.  169,  78  C.  C.  A.  303,  reversed.  In- 
gersoll V.  Coram,  211  U.  S.  335,  53  L.  Ed. 
208,  29  S.  Ct.  92. 


IK  a 


Vol.  II.  AUTREFOIS,  ACQUIT  AND  CONVICT.  752-753 


AUTREFOIS,  ACQUIT  AND  CONVICT. 
I.  Definitions  and  General  Consideration,  161. 
B.  Statement  of  Rule,  161. 

D.  Doctrine  Applicable  to   Philippine  Islands,  161. 

F.  Prosecutions  and   Proceedings  as  to  Which  Former  Jeopardy  a  De- 
fense, 161. 

II.  Essential  Elements  of  Jeopardy,   162. 

A.  Jurisdiction  of  Court,  162. 

B.  Validity  of  Indictment,  162. 

III.  Identity  of  Offenses,  162. 

A.  Rule  as  to  Identity,  162. 

C.  Single  Act  Involving  More  than  One  Offense,  162. 

I.  Where  Same  Evidence  Will  Not  Support  Both  Indictments,  162. 
J.  Same  Act  as  a  Distinct  Offense  against  Different  Sovereigns,  163. 

1.  United  States  and  a  State,  163. 

2.  United  States  and  the  Philippine  Islands,  164. 
K.  Severer  Punishment  for  Second  Offense,   164. 
M.  Separate  Parts  of  Transactions,  164. 

IV.  What  Constitutes  a  Jeopardy,   164. 

B.  Instances  Not  Constituting  Jeopardy,  164. 

1.  Discharge  of  Jury  from  Necessity,  164. 

7.  Prosecution  \\'hich  Can  Not  Legally  Result  in  Conviction,  164. 

8.  Arraignment  and  Plea,  165. 

9.  Dismissal  of  Indictment,  165. 

10.  Conviction  of   Different   Offenses    or    Higher  Grade    of  Offense 
after  Reversal,   165. 

V.  Pleading,   165. 

•  D.  Effect  of  Plea  as  Preventing  Prosecution  to  Final  Judgment.  165. 

CROSS   REFERENCES. 

See  the  title  Autref'ois,  Acquit  and  Convict,  vol.  2,  p.  751,  and  references 
there  given. 

In  addition,  see  post.  Due  Process  of  Law^. 

I.   Definitions   and  General  Consideration. 

B.  Statement  of  Rule. — See  note  4. 

D.  Doctrine  Applicable  to  Philippine  Islands. — See  note  9. 
F.    Prosecutions  and  Proceedings  as  to  Which  Former  Jeopardy  a  De- 
fense.— Persons  sued  for  double  damages  imposed  by  a  statute  for  making  a 

752-4.      "Necessarily,    there    must    be    a  ardy    of    punishment.'      This    statute    was 

first  jeopardy  before  there  can  be  a  second,  before  this  court  in  the  case  of  Kepner  v. 

and  only  when  a  second  is   sought  is   the  United  States,  19,5  U.  S.  100,  49  L.  Ed.  114, 

constitutional  immunity  from  double  pun-  34  S.  Ct.  797,  and  it  was  there  held  that  the 

ishment    threatened    to    be    taken    away."  protection  against  double  jeopardy  therem 

Shelvin-Carpenter  Co.  v.  Minnesota,  218  U.  provided    had.    by    means    of    this    statute, 

S.  57,  54  L.  Ed.  930,  30  S.  Ct.  663.  l^een   carried   to   the   Phdippine   Islands   m 

753-9.      Doctrine    applicable    to    Philip-  the  sense  and  in  the  meaning  which  it  had 

pine    Islands.— "Section    5    of    the    act    of  obtained  under  the  constitution  and  laws 

congress  of  July  1.  1902  (32  Stat,  at  L.  691,  of  the  United  States."    Gavieres  v.  United 

chap.  1369),  provides:     'No  person,  for  the  States,  220  U.  S.  338,  55  L.  Ed.  489,  31  S. 

same   offense,   shall   be   twice   put   in   jeop-  Ct.  421. 

12   U  S   Enc— 11  1«1 


754-758 


AUTREFOIS,  ACQUIT  AND  CONVICT. 


Vol.  11. 


casual  and  involuntary  trespass  by  cutting  or  assisting  to  cut  timber  upon  state 
lands  can  not  complain  that  because  of  the  further  penal  features  of  the  law 
applicable  to  those  offending  against  its  provisions  they  are  subject  to  be  put 
twice  in  jeopardy  for  the  same  offense.^^a 

II.  Essential  Elements  of  Jeopardy. 

A.  Jurisdiction  of  Court. — The  jeopardy  incident  to  a  trial  for  an  assault 
and  battery  before  a  justice  did  not  extend  to  an  offense  beyond  his  jurisdic- 
tion. All  that  can  be  claimed  for  that  jeopardy  is  that  it  protected  the  accused 
from  being  again  prosecuted  for  the  assault  and  battery,  and,  therefore,  in  a 
prosecution  for  the  death  of  the  injured  person,  required  that  the  former  be  not 
treated  as  included,  as  a  lesser  offense,  in  the  charge  of  homicide. ^-''^ 

B.  Validity  of  Indictment. — It  is  an  established  rule  that  one  is  not  put  in 
jeopardy  if  the  indictment  under  which  he  is  tried  is  so  radically  defective  that 
it  would  not  support  a  judgment  of  conviction,  and  that  a  judgment  thereon 
would  be  arrested  on  motion. i^'' 

III.  Identity  of  Offenses. 

A.  Rule  as  to  Identity. — See  note  17. 

C.  Single  Act  Involving  More  than  One  Offense. — Conviction  of  Lesser 
Offense  as  Acquittal. — A  single  transaction  may  involve  more  than  one  of- 
fense and  a  conviction  on  a  charge  of  the  lesser  does  not  necessarily  bar  a  sub- 
sequent conviction  for  the  greater.^o^ 

I.  Where  Same  Evidence  Will  Not  Support  Both  Indictments. — See 
note  30. 


754-12a.  Offense,  etc.,  to  which  former 
jeopardy  a  defense. — Shelvin-Carpenter 
Co.  V.  Minnesota,  218  U.  S.  57,  54  L-  Ed. 
930,  30  S.  Ct.  663._ 

754-13a.  Jurisdiction  of  court. — Diaz  v. 
United  States,  223  U.  S.  442,  56  L.  Ed.  500, 
32  S.  Ct.  250.  This  is  the  rule  under  Phil- 
ippine Comp.  Stat.,  §  3284. 

754-14a.  Validity  of  indictment. — Shoe- 
ner  v.  Pennsylvania,  207  U.  S.  188,  52  L. 
Ed.  163,  28  S.  Ct.  110. 

"So,  where  the  defense  is  that  the  ac- 
cused was  put  in  jeopardy  for  the  same 
offense  by  his  trial  under  a  former  indict- 
ment, if  it  appears  from  the  record  of  that 
trial  that  the  accused  had  not  then  or  pre- 
viously committed,  and  could  not  possibly 
have  committed,  any  such  crime  as  the 
one  charged,  and  therefore  that  the  court 
was  without  jurisdiction  to  have  rendered 
any  valid  judgment  against  him,  and  such 
is  the  case  now  before  us,  then  the  accused 
was  not,  by  such  trial,  put  in  jeopardy  for 
the  offense  specified  in  the  last  or  new  in- 
dictment." Shoener  v.  Pennsylvania, 
207  U.  S.  188,  52  E.  Ed.  163,  28  S.  Ct.  110. 

755-17.  Rules  as  to  identity. — Gavieres  v. 
United  States,  220  U.  S.  338,  55  L.  Ed.  489, 
31  S.  Ct.  421,  quoting  from  Burton  v. 
United  States,  202  U.  S.  344,  381,  50  L.  Ed. 
1057,  26  S.  Ct.  688. 

"The  provision  against  double  jeopardy, 
in  the  Philippine  Civil  Government  Act 
of  July  1,  1902,  32  Stat.  691,  c.  1369,  §  5,  is 
in  terms  restricted  to  instances  where  the 
second  jeopardy  is  'for  the  same  offense' 


as  was  the  first.  Gavieres  v.  United 
States,  220  U.  S.  338,  55  L.  Ed.  489,  31  S. 
Ct.  421."  Diaz  V.  United  States,  223  U.  S. 
442,  56  L.  Ed.  500,  32  S.  Ct.  250. 

755-20a.  Assault  resulting  in  death  of  as- 
sailed.— The  prosecution  for  homicide  of  a 
person  previously  convicted  of  an  assault 
and  battery  from  which  the  death  after- 
wards ensued  does  not  place  the  accused 
twice  in  jeopardy  for  the  same  offense, 
contrary  to  the  act  of  July  1,  1902  (32  Stat, 
at  L.  691,  chap.  1369),  §  5,  enacting  a  bill  of 
rights  for  the  Philippine  Islands;  espe- 
cially where  the  jurisdiction  of  the  justice 
of  the  peace  before  whom  the  assault  and 
battery  charged  was  tried  did  not  extend 
to  homicide  cases.  Diaz  v.  United  States, 
223  U.  S.  442,  56  L.  Ed.  500.  32  S.  Ct.  250. 

The  homicide  charged  against  the  ac- 
cused in  the  court  of  first  instance  and  the 
assault  and  battery  for  which  he  was  tried 
before  the  justice  of  the  peace,  although 
identical  in  some  of  their  elements,  were 
distinct  offenses  both  in  law  and  in  fact. 
The  death  of  the  injured  person  was  the 
principal  element  of  the  homicide,  but  was 
no  part  of  the  assault  and  battery.  At  the 
time  of  the  trial  for  the  latter  the  death 
had  not  ensued,  and  not  until  it  did  ensue 
was  the  homicide  committed.  Then,  and 
not  before,  was  it  possible  to  put  the  ac- 
cused in  jeopardy  for  that  offense.  Diaz 
V.  United  States,  223  U.  S.  442,  56  L.  Ed. 
500,   32   S.   Ct.   250. 

758-30.  Where  same  evidence  will  not 
support  both  indictments. — "  '.\  conviction 


162 


Vol.  II. 


AUTREFOIS,  ACQUIT  AND  CONVICT. 


758 


J.    Same  Act  as  a  Distinct  Offense  against  Different  Sovereigns 1. 

United  States  and  a  State. — When  Judgment  of  State  Court  Accepted 
by  Federal  Court. — The  Federal  court-  accepts  the  judgment  of  a  state  court, 
based  upon  a  verdict  of  acquittal  of  a  crime  against  the  state,  whenever,  in  a 
case  in  the  federal  court,  it  hecomes  material  to  inquire  whether  that  particular 
crime  against  the  state  was  committed  by  the  defendants  on  trial  in  the  federal 
court  for  an  offense  against  the  United  States.^^a  'j^j^jg  jg  ^■\^^  ^^^^^^  -^^  prosecu- 
tions for  conspiring  criminally  in  violation  of  the  federal  statutes,  where  it  is 
alleged  that  an  offense  against  a  state  has  been  committed  in  carrying  out  such 
conspiracy.^'"' 


.32b 


or  acquittal  upon  one  indictment  is  no  bar 
to  a  subsequent  conviction  and  sentence 
upon  another,  unless  the  evidence  required 
to  support  a  conviction  upon  one  of  them 
would  have  been  sufficient  to  warrant  a 
conviction  upon  the  other.  The  test  is 
not  whether  the  defendant  had  already 
been  tried  for,  the  same  act,  but  whether 
he  has  been  put  in  jeopardy  for  the  same 
offense.  A  single  act  may  be  an  offense 
against  two  statutes;  and  if  each  statute 
requires  proof  of  an  additional  fact  which 
the  other  does  not,  an  acquittal  or  convic- 
tion under  either  statute  does  not  exempt 
the  defendant  from  prosecution  and  pun- 
ishment under  the  other.'  *  *  *  Carter 
V.  IMcClaughry,  183  U.  S.  365,  395,  46  L. 
Ed.  236,  22  S.  Ct.  181."  Gavieres  v.  United 
States,  22Q  U.  S.  338,  55  L.  Ed.  489,  31  S. 
Ct.  421. 

In  Carter  v.  McClaughry,  183  U.  S.  365, 
395,  46  L.  Ed.  236,  22  S.  Ct.  181,  speaking 
of  the  identity  of  offenses  charged,  the 
court  said:  "The  offenses  charged  under 
this  article  were  not  one  and  the  saine  of- 
fense. This  is  apparent  if  the  test  of  the 
identity  of  offenses,  that  the  same  evidence 
is  required  to  sustain  them,  be  applied. 
The  first  charge  alleged  'a  conspiracy  to 
defraud,'  and  the  second  charge  alleged 
'causing  false  and  fraudulent  claims  to  be 
made,'  which  were  separate  and  distinct 
offenses,  one  requiring  certain  evidence 
which  the  other  did  not.  The  fact  that 
both  charges  related  to  and  grew  out  of 
one  transaction  made  no  difference."  Gav- 
ieres V.  United  States,  220  U.  S.  338,  55  L. 
Ed.  489.  31  S.  Ct.  421. 

"In  Burton  v.  United  States.  202  U.  S. 
344,  381,  50  L.  Ed.  1057,  26  S.  Ct.  688;  Bish- 
op's Criminal  Law,  vol.  1,  §  1051,  was 
quoted  with  approval  to  the  effect,  'Jeop- 
ardy is  not  the  same  when  the  two,  indict- 
ments are  so  diverse  as  to  preclude  the 
same  evidence  from  sustaining  both.' " 
Gavieres  v.  United  States.  220  U.  S.  338.  55 
L.  Ed.  489.  31  S.  Ct.  421. 

Instances. — The  offenses  of  behaving  in 
an  indecent  manner  in  a  public  place,  open 
to  public  view,  punishable  under  munici- 
pal ordinances,  and  of  insulting  a  public 
officer  by  deed  or  word  in  his  presence, 
contrary  to  Pen.  Code  P.  I.,  art.  257,  are 
not   identical,   so   that   a   conviction   of  the 


first  will  bar  a  prosecution  for  the  other, 
although  the  acts  and  words  of  the  accused 
set  forth  in  both  charges  are  the  same. 
Gavieres  v.  United  States,  220  U.  S.  338, 
55  L.  Ed.  489,  31  S.  Ct.  421. 

"It  is  apparent  that  evidence  sufficient 
for  conviction  under  the  first  charge  would 
not  have  convicted  under  the  second  in- 
dictment. In  the  second  case  it  was  nec- 
essary to  aver  and  prove  the  insult  to  a 
public  official  or  agent  of  the  authorities, 
in  his  presence  or  in  a  writing  addressed 
to  him.  Without  such  charge  and  proof, 
there  could  have  been  no  conviction  in  the 
second  case.  The  requirement  of  insult  to 
a  public  official  was  lacking  in  the  first  of- 
fense. Upon  the  charge,  under  the  ordi- 
nance, it  was  necessary  to  show  that  the 
offense  was  committed  in  a  public  place^ 
open  to  public  view;  the  insult  to  a  public 
official  need  only  be  in  his  presence  or  ad- 
dressed to  him  in  writing.  Each  offense 
required  proof  of  a  fact  which  the  other 
did  not.  Consequently  a  conviction  of  one 
would  not  bar  a  prose^cution  for  the  other." 
Gavieres  v.  United  States,  220  U.  S.  338, 
55  L.  Ed.  489.  31   S.   Ct.  421. 

758-32a.  Where  judgment  of  state  court 
accepted  by  federal  court. — United  States 
v.  Mason,  213  U.  S.  115,  53  L.  Ed.  725,  29 
S.  Ct.  480. 

758-32b.  In  prosecution  for  conspiring 
criminally. — An  acquittal  of  murder  after 
a  regular  trial  in  a  state  court  having  full 
jurisdiction  in  the  premises  is  a  bar  to  so 
much  of  an  indictment  for  conspiring 
criminally  in  violation  of  Rev.  St.,  §§  5508. 
5509  (U.  S.  Comp.  St.  1901,  p.  3712),  as 
seeks  by  charging  defendants  with  the 
commission  of  such  murder,  to  enforce 
the  provision  of  §  5509,  that  if,  in  carry- 
ing out  such  conspiracy,  an  offense 
against  the  state  has  been  committed,  the 
punishment  provided  for  by  the  state  for 
such  offense  shall  be  imposed.  United 
States  V.  Mason,  213  U.  S.  115,  53  L.  Ed. 
725,  29  S.  Ct.  480. 

"The  reference  in  that  section  to  an  of- 
fense committed  against  the  state  was  not 
for  the  purpose  of  restricting  or  suspend- 
ing the  power  of  the  state  to  determine 
whether  its  laws  had  been  violated,  and  to 
punish  the  offense  therefor.  That  refer- 
ence was  for  the  purpose  only  of  mcasur- 


163 


759-762 


AUTREFOIS,  ACQUIT  AXD  CONVICT. 


Vol.  II. 


2.  UNiTiiD  States  and  the  Philippine  Islands. — See  note  36. 

K.  Severer  Punishment  for  Second  Offense. — A  former  convict  is  not 
placed  twice  in  jeopardy  by  bringing  him  after  conviction  before  the  court  of 
another  county  in  a  separate  proceeding  instituted  conformably  to  W.  Va.  Code, 
chap.  165,  §§  1-5,  by  information  charging  him  with  prior  convictions  which 
were  not  alleged  in  the  indictment  on  which  he  was  last  tried  and  convicted, 
and,  on  the  finding  of  the  jury  that  he  was  the  former  convict,  sentencing  him 
to  the  additional  punishment  which  chap.  152,  §§  23,  24,  in  such  cases  pre- 
scribes.''^^ 

M.  Separate  Parts  of  Transactions. — Treating  as  two  different  offenses 
assaults  on  tw^o  different  individuals  does  not  place  the  accused  twice  in  jeopardy 
for  the  same  offense,  within  the  meaning  of  Act  July  1,  1902,  c.  1369,  §  5,  32 
Stat.  692,  even  if  these  assaults  occurred  very  near  each  other,  in  one  contin- 
uing attempt  to  defy  the  law.-"*^^ 

IV.  What  Constitutes  a  Jeopardy. 

B.  Instances  Not  Constituting  Jeopardy — 1.  Discharge  of  Jury  erom 
Necessity. — See  note  45. 

7.  Prosecution  Which  Can  Not  Legally  Result  in  Conviction. — An  ac- 
cused is  not  put  in  peril  by  a  prosecution  which  could  not  legally  result  in  a 
conviction  for  crime.^*^"^ 


ing  the  punishment  for  the  conspiracy 
charged  by  the  United  States,  upon  it  be- 
ing found,  at  the  trial  in  the  federal  court, 
that  such  conspiracy  in  violation  of  the 
federal  statute  had  been  aggravated  by  the 
commission  of  an  offense  against  the  state; 
'an  aggravation  merely  of  the  substantive 
offense  of  consp'iracy,'  not  a  distinct,  sep- 
arate offense  against  the  United  States,  to 
be  punished  by  it  without  reference  to  the 
conspiracy  charged  in  the  indictment. 
Rakes  v.  United  States,  212  U.  S.  55,  57, 
53  L.  Ed.  401,  29  S.  Ct.  244;  Davis  z'.  United 
States,  46  C.  C.  A.  619,  107  Fed.  753." 
United  States  v.  Mason,  213  U.  S.  115,  53 
L.  Ed.  725,  29  S.  Ct.  480. 

759-36.  United  States  and  Philippine  Is- 
lands.— In  Grafton  z'.  United  States.  206 
U.  S.  333,  51  L.  Ed.  1084,  27  S.  Ct.  7  49,  "the 
supreme  court  of  the  Philippine  Islands 
held  that  a  soldier  of  the  United  States 
army  might  be  prosecuted  for  homicide 
before  a  military  court-martial  and  also 
before  a  civil  court  exercising  authority 
in  the  islands.  That  judgment  was  re- 
versed and  the  conviction  before  the  mili- 
tary court-martial  held  to  bar  a  prosecu- 
tion for  the  same  homicide  in  the  civil 
courts  of  the  Philippine  Islands.  It  ap- 
peared that  Grafton  had  been  acquitted  of 
the  unlawful  homicide  of  a  Filipino  by  a 
duly  convened  court-martial  having  juris- 
diction of  the  offense.  After  acquittal  he 
was  charged  in  the  court  of  first  instance 
of  the  province  of  Iloilo  with  the  crime  of 
assassination  in  committing  the  same 
homicide.  He  was  convicted,  notwith- 
standing his  plea  of  former  jeopardy,  of 
infraction  of  art.  404,  Penal  Code,  of  the 
crime  of  homicide  in  killing  the  Filipino. 
This  court  held  that  the  court-martial  had 
full  jurisdiction  to  try  the  accused  for  the 


offense;  that  it  derived  its  authority  for 
the  same  governmental  power  as  did  the 
civil  court  in  the  Philippine  Islands,  and 
that  if  the  conviction  in  the  civil  court 
were  allowed  to  stand,  the  accused  would 
be  for  the  second  time  in  jeopaijdy  for  the 
same  homicide."  Gavieres  v.  United 
States,  220  U.  S.  338,  55  L-  Ed.  489.  31 
S.  Ct.  421. 

759-37a.  Severer  punishment  for  second 
offense. — Graham  t'.  West  Virginia,  224  U. 
S.   616,   56   L.    Ed.   917,   32   S.    Ct.   583. 

760-38a.  Separate  parts  of  transactions, 
— Flemister  z\  United  States,  207  U.  S. 
372,  56  L.  Ed.  252,  28  S.  Ct.  129. 

761-45.  Failure  of  jurors  to  agree. — A 
plea  of  former  jeopardy  can  not  be  based 
upon  a  discharge  of  the  jury  on  a  prior 
trial  after  they  had  been  out  at  least  24 
hours,  and  the  trial  court  had  found  that 
there  was  a  reasonable  probability  that  the 
jury  could  not  agree.  Judgment,  85  P. 
862,  32  Mont.  501,  afifirmed.  Keerl  v.  Mon- 
tana, 213  U.  S.  135,  53  L.  Ed.  734,  29  S. 
Ct.  469. 

762-60a.  Prosecution  which  can  not  le- 
gally result  in  conviction. — Shoener  v. 
Pennsylvania,  207  U.  S.  188,  52  L.  Ed.  163, 
28  S.  Ct.  no. 

A  plea  of  autrefois  acquit  can  not  be 
sustained,  where  a  judgment  of  conviction 
was  reversed  because  the  prosecution  had 
been  instituted  before  the  offense  charged 
against  the  defendant  was  or  could  have 
been  committed  under  admitted  facts  of 
the  case;  as  a  bar  to  a  new  indictment 
against  him  for  an  offense  subsequently 
committed,  for  he  never  was  in  peril. 
Shoener  z:  Pennsylvania,  207  U.  S.  188, 
52  L.  Ed.  163,  28  S.  Ct.  110. 

A   second   conviction   of  a  public   officer 


164 


Vol.  II.  BADGES  OF  FRAUD.  762 

8.  Arraign  MKXT  and  Plea. — The  mere  arraignment  of  the  accused  and  his 
pleading  to  the  indictment  does  not  put  him  in  judicial  jeopardy.-^*"' 

9.  Dismissal  of  Indictment. — The  accused  is  not  put  in  jeopardy,  because 
the  indictment  was  dismissed.  It  may  have  been  that  the  dismissal  was  be- 
cause the  state  was  without  sufficient  evidence  at  the  time  to  hold  the  defend- 
ant; or  there  may  have  been  other  and  adequate  reasons  for  the  course  taken 
by  the  state's  attorney."^^ 

10.  Conviction  of  Different  Offenses  or  Higher  Grade  of  Offense 
after  Reversal. — Conviction  of  Lower  as  Acquittal  of  Higher  Degree  of 
Homicide. — A  person  convicted  of  a  lesser  grade  of  homicide  than  that  charged 
in  the  indictment,  who  obtains  a  reversal  of  the  judgment  upon  appeal,  is  not 
placed  twice  in  jeopardy  by  a  second  trial  for  murder  under  the  same  indict- 
ment.-^^'^ 

Different  Offense  Carrying  Increased  Punishment, — An  accused  is  not 
placed  twice  in  jeopardv  for  the  same  offense  within  the  meaning  of  Act 
July  1,  1902,  c.  1369,  §  o,  32  Stat.  692,  because  the  supreme  court  of  the  Philip- 
pine Islands,  upon  reversing  judgment  below  in  a  criminal  case,  on  an  appeal 
taken  by  the  accused,  convicted  him  on  the  same  facts,  of  a  different  offense, 
carrying  an  increased  sentence. ■^''^'^ 

V.  Pleading. 

D.  Effect  of  Plea  as  Preventing  Prosecution  to  Final  Judgment. — A 
plea  of  former  conviction  under  the  constitutional  provision  that  no  person  shall 
be  twice  put  in  jeopardy  for  the  same  oft"ense  does  not  have  the  effect  to  pre- 
vent a  prosecution  to  final  judgment,  although  the  former  conviction  or  ac- 
quittal may  be  finally  held  to  be  a  complete  bar  to  any  right  of  prosecution ;  and 
this  notwithstanding  the  person  is  in  jeopardy  a  second  time,  if,  after  one  con- 
viction or  acquittal,  the  jury  is  impaneled  to  try  him  again. •'^•'^^ 

AVULSION. — See  ante,  Accession,  Accretion  and  Reliction,  p.  4. 
AWARD. — See  post,  Special  Assessments. 

BADGES  OF  FRAUD. — See  post,  Fraudulent  and  \'oluntary  Convey- 
ances. 

for  failing  on  demand  to  pay  over  public  ing  v.  Cady,  208  U.  S.  386,  52  L.  Ed.  540, 

moneys  does  not  twice  subject  the  defend-  28   S.  Ct.  392. 

ant   to   jeopardy    for    the     same      offense,  762-50C.      Dismissal      of      indictment.— 

where    the    first    conviction    was    reversed  Bassing  7:  Cady,  208  U.  S.  386.  52   L.  Ed. 

en  the  ground  that  there  had  been  no  le-  540.  28    S.   Ct.   392. 

gal  demand  for  the  payment  of  the  money  762-50d.   Conviction  of  different  oflenses, 

without  which  the  offense  charged  against  etc.— Brantley  v.   Georgia,   217   U.   S.   284. 

him      could      not     have     been    committed.  54   L.   Ed.   768,  30   S.  Ct.   514,  affirming  65 

Such  a  conviction  is  not  a  deprivation  of  S.  E.  42G. 

liberty  without  due  process  of  law.  in  vio-  762-50e.    Flemister  z'.  United  States,  207 

lation   of  United  States   constitution,  four-  U.   S.  372,  50  L.  Ed.  252    28  S.  Ct.  129._ 

teenth   amendment.     Shoener  v.   Pennsyl-  762-55a.      Effect    of   plea    as   preventing 

vania    207  U.   S.  188,  52  L.  Ed.  163,  28  S.  prosecution   to   final  judgment.— I leike   v. 

Ct    no  United  States,  217  U.  S.  423.  54  L.  Ed.  821, 


762-50b.    Arraignment   and  plea. — Bass-       30  S.   Ct. 


539. 


165 


767-780 


BAIL  AND  RECOGNIZANCE. 


Vol.  II. 


BAIL  AND  RECOGNIZANCE. 

II.  Definitions  and  Distinction,   166. 
IV.  In  Criminal  Prosecutions,  166. 
A.  Admission  to  Bail,  166. 
3.  After  Conviction,  166. 

a^.  Constitutional  Right  to  Bail,  166. 

b.  Upon  Appeal  or  Writ    of    Error    from  a  Circuit  or  District 
Court  of  the  United  States,  166. 
E.  Forfeiture  of  Bail  Bond,  166. 

1^.  When  Cause  of  Action  Accrues,  166. 

2y2.  Venue,  167. 

2>y2.  Service  of  Process,   167. 

CROSS  REFERENCES. 

See  the  title  Baii,  and  Recognizance,  vol.  2,  p.  7'65,  and  references  there 
given. 

II.  Definitions  and  Distinction. 

Distinguished  from  Suretyship. — It  would  seem  to  have  been  held  that 
there  is  little  distinction  between  bail  and  suretyship."^ 

IV.  In  Criminal  Prosecutions. 

A.  Admission  to  Bail — 3.  After  Conviction — a>2.  Constitutional  Right  to 

Bail. — A  person  convicted  of  a  criminal  offense  has  no  constitutional  right  to 
bail.^'^a 

b.  Upon  Appeal  or  Writ  of  Error  from   a    Circuit  or  District  Court  of  the 
United  States. — See  ante.  Appeal  and  Error,  p.  34. 

E.  Forfeiture  of  Bail  Bond — V/z.  When  Cause  of  Action  Accrues. — 
VkHiere  a  defendant  fails  to  appear  as  required  by  the  obligation  of  the  bond, 
a  right  of  action  accrues  against  the  surety.*^ '''^ 


767-73.    Distinguished    from    suretyship. 

— Leary  v.  United  States,  224  U.  S.  567, 
56  L.  Ed.  889,  32  S.  Ct.  599.  See  post, 
PRINCIPAL  AND  SURETY. 

"The  distinction  between  bail  and 
suretyship  is  pretty  nearly  forgotten.  The 
interest  to  produce  the  body  of  the  prin- 
cipal in  court  is  impersonal  and  wholly 
pecuniary.  If,  as  in  this  case,  the  bond 
was  for  $40,000,  that  sum  was  the  measure 
of  the  interest  on  anybody's  part,  and  it 
did  not  matter  to  the  government  what 
person  ultimately  felt  the  loss  so  long  as 
it  had  the  obligation  it  was  content  to 
take.  The  law  of  New  York  recognizes 
the  validity  of  contracts  like  the  one  al- 
leged, and,  without  considering  whether 
the  law  of  New  York  controls,  we  are  con- 
tent to  say  merely  that  the  New  York 
decisions  strike  us  as  founded  in  good 
sense."  Leary  v.  United  States,  224  U. 
S.   567,   575,   56   L.   Ed.   889,  32   S.   Ct.   599. 

"It  is  said  that  the  bail  contemplated 
by  the  Rev.  Stat.,  §  1014,  is  common-law 
bail  and  that  nothing  should  be  done  to 
diminish  the  interest  of  the  bail  in  pro- 
ducing the  body  of  his  principal.     But  bail 


no  longer  is  the  mundium,  although  a 
trace  of  the  old  relation  remains  in  the 
right  to  arrest.  Rev.  Stat.,  §  1018."  Leary 
V.  United  States,  224  U.  S.  567,  575.  56 
L.    Ed.   889,  32   S.   Ct.  599. 

773-45a.  Constitutional  right  to  bail. — 
Harlan  v.  McGourin,  218  U.  S.  442,  54  L- 
Ed.  1101,  31  S.  Ct.  44,  affirming  180  Fed. 
119. 

There  is  no  constitutional  right  to  bail 
after  a  conviction  in  any  case;  it  being 
properly  granted  or  denied  as  best  effects 
justice,  determined  in  the  light  of  the  com- 
mon law,  as  affected  by  acts  of  congress. 
Ex  parte  Harlan,  180  F.  119,  decrees  af- 
firmed in  Harlan  v.  McGourin,  218  U.  S. 
442.    54   L.    Ed.    1101,    31    S.    Ct.    44. 

780-68a.  When  cause  of  action  accrues. 
—United  States  v.  Kirk.  204  U.  S.  668. 
51  L.  Ed.  671,  27  S.  Ct.  788.  affirming  137 
Fed.  753. 

Where  a  defendant  indicted  for  con- 
spiracy to  defraud  the  United  States  ex- 
ecuted a  bond  conditioned  that  he  would 
appear  on  a  specified  day.  and  from  day 
to  day  and  from  term  to  term  should  the 
case    be    continued,    and    answer    to    such 


166 


Vol.  II. 


BANK  GUARANTY  FUND. 


780 


2y2.  Venue.— x^n  action  to  recover  the  penalty  of  a  bail  bond  should  be 
brought  in  the  district  court  of  the  district  in  which  the  surety  resides.'^'^^  And 
a  district  court  of  another  district  than  that  in  which  the  surety  resides  and  in 
which  he  has  never  been  personally  has  no  jurisdiction  to  recover  the  penalty ."^o" 

3>4.  Service  oe  Process. — In  action  against  a  surety  to  recover  the  penalty 
of  a  bail  bond,  the  fact  that  the  officer  endeavoring  to  serve  process  made  two 
returns  "defendant  not  found,"  is  not  sufficient  service  to  authorize  judgment 
against  a  defendant  not  residing  in  the  district  where  the  action  is  brought.' ^^ 

BAILMENTS.— See  the  title  Bailments,  vol.  2,  p.  782,  and  references  there 
given. 

BANK  BILL— BANK  NOTES.— See  post,  Banks  and  Banking. 
BANKER'S  LIEN.— See  post.  Banks  and  Banking. 
BANK  EXAMINER.— See  post,  Banks  and  Banking. 
BANK  GUARANTY  FUND.— See  post.  Constitutional  Law. 


things  as  should  be  objected  against  him, 
etc.,  and  on  his  failure  to  appear  as  re- 
quired the  bond  was  duly  estreated,  the 
Cjnited  States  thereby  acquired  a  perfect 
cause  of  action  against  the  surety,  en- 
forceable in  a  proper  forum  after  due  no- 
tice. Decree,  Kirk  v.  United  States.  137 
F.  753,  70  C.  C.  A.  187,  affirmed.  United 
States  7'.  Kirk,  204  U.  S.  668,  51  L.  Ed. 
671,   27   S.   Ct.  788. 

780-70a.  Venue.— United  States  f.  Kirk, 
204  U.  S.  668.  51  L.  Ed.  671,  27  S.  Ct.  788. 
See  post,  VENUE. 

780-70b.  District  other  than  where 
surety  resides. — United  States  z\  Kirk,  204 
U.  S.  668,  51  L.  Ed.  671,  27  S.  Ct.  788,  af- 
firming  137    Fed.    753. 

Where  a  surety  on  a  bail  bond  resided 
in  another  district  from  that  in  which  the 
bond  was  filed,  and  remained  in  the  dis- 
trict of  his  domicile,  his  personal  liability 
on  the  bond  could  not  be  established  in 
any   other  district   than   that  where  he   re- 


sided. Decree,  Kirk  v.  United  States 
(1905).  137  F.  753.  70  C.  C.  A.  187,  af- 
firmed. United  States  v.  Kirk,  204  U. 
S.  668,  51   L.   Ed.  671,  27   S.   Ct.  788. 

780-71a.  Service  of  process. — United 
States  V.  Kirk,  204  U.  S.  668,  51  L.  Ed.  671, 
27  S.  Ct.  788.  See  post,  SUMMONS  AND 
PROCESS. 

Where  the  surety  on  a  bail  bond  filed 
in  a  federal  court  sitting  in  Georgia  con- 
tinued openly  to  reside  in  New  York  dur- 
ing all  the  time  proceedings  were  pending 
in  Georgia  on  the  bond,  two  returns  nihil 
in  Georgia  to  a  writ  of  certiorari  after  for- 
feiture of  the  bond  in  the  district  in  which 
the  bond  was  filed  were  not  equivalent  to 
personal  service,  so  as  to  authorize  a 
personal  judgment  against  such  a  surety. 
Decree,  Kirk  r.  United  States,  137  F.  753. 
70  C.  C.  .A..  187,  affirmed.  United  States 
7-.  Kirk,  204  U.  S.  668,  51  L.  Ed.  671,  27 
S.    Ct.   788. 


167 


BANKRUPTCY.  Vol.  11. 


BANKRUPTCY. 

II.  Bankrupt  Laws,  170. 

B.  Purpose,  170. 

III.  Who  May  Become  Bankrupts,  170. 

C.  Under  the  Present  Bankrupt  Act,  170. 

2.  Involuntary  Bankrupt,  170. 

V.  Jurisdiction,  170. 

A.  Creation  and  Original  Jurisdiction  of  Courts  of  Bankruptcy,  170. 

1.  Creation,  170. 

2.  Jurisdiction  and  Powers,   171. 

a.  In  General,  171. 

b.  Enumeration  of  Specific  Powers,  171. 

(7)   Collection   and   Distribution   of   Bankrupt  Estates,   and 
Determination  of  Controversies  Relating  Thereto,  171. 

B.  Jurisdiction  of  United  States  and  State  Courts  in  Controversies  Other 

than  Bankruptcy  Proceedings,   171. 
1.  Proceedings  between   Trustees   and  Adverse  Claimants  of   Bank- 
rupts' Property,   171. 

b.  Under  Present  Bankrupt  Act,  171. 

C.  Appellate  Jurisdiction,  172. 

1.  Jurisdiction  of  Controversies  Arising  in  Bankruptcv  Proceedings, 

172.  '   , 

2.  Supervisory  Jurisdiction  in  Matters  of  Law  over  Superior  Courts 

of   Bankruptcy, 
a.  Right  to  Exercise,  172. 

c.  Exercise   of   Power   Not   Reviewable   on   Appeal  to   Supreme 

Court,  173. 

3.  Appeals  in  Bankruptcy  Proceedings,   173. 

a.  From  Courts  of  Bankruptcy  to  Courts  of  Appeal,  173. 

(1)  When  Proper,  and  to  What  Courts  Taken,  173. 

(2)  When  to  Be  Taken,  173. 

b.  From  Final  Decisions  of  Court  of  Appeals  to  United  States 

Supreme  Court,  174. 

(1)  When  Proper,   174. 

(2)  Record  on  Appeal.  175. 

VII.  Procedure  to  Obtain  Adjudication  of  Bankruptcy,  175. 
B.  Involuntary  Proceedings,   175. 
3.  By  Whom  Instituted,  175. 
5.  Petition,  175. 

a.  Definition,  175. 

c.  Amendment,  175. 

8.  Appearance  and  Pleading  by  Bankrupt  or  Creditors,  176. 

a.  Right  to  Appear  and  Plead  to  Petition,  176. 

9.  Hearing  and  Adjudication,  176. 

a.  Duty  of  Judge    to    Determine   Issues   Where  Allegations  of 
Petition  Controverted,  176. 

IX.  Protection  of  Property  and  Riis^hts  of  Creditors  Pending  Adjudica- 
tion and  Appointment  of  Trustee,  176. 
B.  Injunctions  to  Restrain  Interference,  17'6. 

168 


Vol.  II.  BANKRUPTCY. 

C.  Receivers,  176. 

2.  Powers  and  Duties,  176. 

XI.  Duties,  Exemptions  and  Rights  of  Bankrupt,  177. 
A.  Duties  of  Bankrupt,   177. 

XII.  Discharge  of  Bankrupt,  177. 
A.  Definition,  177. 

E.  Application  and  Hearing  Thereon,   177. 

3.  Granting  or  Refusal  of  Discharge,  177. 

F.  Efifect  of  Discharge,  177. 

1.  Upon  Debts  of  Bankrupt,  177. 

a.  In  General,  177. 

XV.  Proof  and  Allowance  of  Claims,  177. 

A.  Proof,  177. 

2.  What  Debts  ]\Iay  Be  Proved.  177. 

b.  Unliquidated  and  Contingent  Claims  against  Bankrupt,  177. 

B.  Allowance,  177. 

3.  Allowance   of   Claims    of    Secured   Creditors   and   Those   Having 

Priority,  177. 

4.  Allowance  of   Claims  of   Creditors  \Mio   Have   Received   Prefer- 

ence, 178. 

XVI.  Trustees  or  Assignees,  178. 

E.  Rights,  Powers,  Duties,  and  Liabilities,  178. 

1.  Rights  and  Powers,   178. 

b.  Title  and  Rights  as  to  Property  of  Bankrupt,  178. 

(1)  General  Rules,  178. 

(a)   \"ested   with   Title   to   All   Unexempt   Property   of 
Bankrupt,   178. 
aa.  Rule  Stated,  \7^. 

bb.  Power    of     Court    to     Compel     Surrender    to 
Trustee,  178. 

c.  Takes  Title  Subject  to  Equities  and  Encumbrances,  178. 

(2)  Enumeration  of  Specific  Property  and  Rights  Passing 

to  Trustees,  179. 

XVII.  Administration  and  Distribution  of  Estate,  179. 

D.  Payment  of  Taxes,  Priority  of  Debts,  and  Order  of  Payment,  179. 

2.  Order  of  Priority  and  Payment  of  Debts,  179. 

d.  \\'ages  of  Workmen,  Clerks  or  Servants,  179. 

f.  Prioritv  of  Debts  Due  United  States  and  States  under  Former 
Statutes,   180. 
(1)   Debts  Due  United   States,   180. 

XIX.  Provisions  of  Bankrupt  Act  as  to  Liens,  Transfers  and  Prefer- 
ences, 180. 

A.  Liens,  180. 

1.  What  Claims  Are  Not  Liens  against  Bankrupt  Estate.  180. 

3.  Dissolution  of  Liens  Obtained  Through  Legal  Proceedings  withni 

Four  Months  before  Filing  the  Petition,  180. 

4.  Liens  Which  Are  Not  Affected  by  Bankrupt  Act,  180. 

B.  Conveyances,    Assignments    or    Encumbrances    to    Delay    or    Defraud 

Creditors,  180. 
1.  Invalidity  of  Such  Acts,  180. 

C.  Preferences,  181. 

1.  Invalidity  of  Preferences,  181. 

169 


804-814  BANKRUPTCY.  Vol.  II. 

b.  What    Constitutes    Preference    within    Meaning   of    Bankrupt 

Act,  181. 
d.  Effect   of   Statutory   Provisions   upon   Insolvents'   Right  to 
Deal  with  His  Property  in  Good  Faith,  182. 
D.  V^alidity  of  Payment  or  Transfer  to  Attorneys,  etc.,  for  Future  Serv- 
ices,  182. 

XX.  Application  of  Bankrupt  Acts  to  Partners  and  Partnership  Estates, 
182. 

C.  Appointment,  Powers  and  Duties  of  Trustees,  182. 

2.  Possession  and  Recovery  of  Assets,  182. 

D.  Administration  and  Distribution  of  Assets,   182. 

3.  Application  of  Proceeds  of  Partnership  and  Individual  Estates,  182. 

XXI.  Nature,  Operation,  and  Effect  of  Bankruptcy  Proceedings,  183. 

B.  Operation  and  Effect,  183. 

2.  Eff'ect  upon  Right  to  Institute  Suits,  183. 

3.  Effect  on  Pending  Suits,  183. 

a.  Effect  of  Proceedings  as  Stay  of  Suits  in  Other  Courts,  183. 
(1)    Provisions  of  Former  and  Present  Bankrupt  Acts,  183. 

C.  Conclusiveness  and  Effect  of  Adjudication,  183. 

CROSS   REFERENCES. 

See  the  title  Bankruptcy,  vol.  2,  p.  792,  and  references  there  given. 

II.    Bankrupt  Laws. 

B.  Purpose. — See  note  18. 

Ill,    Who  May  Become  Bankrupts. 

C.  Under  the  Present  Bankrupt  Act — 2.    Ixvoi^untary  Bankrupt, — See 
note  44. 

V.    Jurisdiction. 
A,    Creation    and    Original    Jurisdiction    of    Courts    of    Bankruptcy — 
1.    Creation. — See  note  64. 

804-18.      A     distinct     purpose     of     the  A  corporation  whose  principal  business 

Bankruptcy  Act  is  to  subject  the  admin-  is  making  and  constructing  arches,  walls, 

istration    of   the    estates    of    bankrupts    to  and    abutments,    bridges,    buildings,    etc., 

the   control   of   tribunals  clothed  with   au-  out  of  concrete,  in  carrying  on  which  busi- 

thority  and  charged  with  the  duty  of  pro-  ness    it   buys   and   combines   together   raw 

ceeding   to    final   settlement   and    distribu-  materials,     and     supplies     the     necessary 

tion  in  a  summary  way,  as  are  the  courts  labor,     machinery,    and    appliances,     is    a 

of    bankruptcy.       United     States     Fidelity  "corporation   engaged   principally  in   man- 

etc,  Co.  V.  Bray,  225  U.  S.  205.  56  L.   Ed,  ufacturing."  within  the  meaning  of  Bankr. 

1055.  32   S.  Ct.  620.  Act  July  1,  1898,  c.  541,  §  4b,  30   Stat.  547 

809-44.       A      corporation      engaged      in  (U.  S.  Comp.  St.  1901,  p.  3423),  as  amended 

conducting  hotels  at  various  points  is  not  by  Act  Feb.  5,  1903,  c.  487,   §  3,  32   Stat, 

engaged    principally    in    trading    or    mer-  797   (U.  S.  Comp.  St.  Supp.  1909,  p.  1309), 

cantile   pursuits,   so   as   to   be   liable   to   an  defining  the  persons  or  corporations  which 

involuntary     adjudication    in     bankruptcy  may   be    adjudged    involuntary    bankrupts, 

under  Bankr.  Act  July  1,  1898,  c.  541,  §  4b,  although  such  company  makes  its  product. 

30    Stat.    547     (U.   S.    Comp.   St.    1901,    p.  and  gives  it  form  and  shape,  at  the  place 

3423),  as  amended  by  Act  Feb.  5.  1903.  c.  where  it  is  to  remain.     Judgment,   Hall  & 

487,    §  3,    32  Stat.    797     (U.   S.    Comp.    St.  Kaul    Co.  v.   Friday    (1907)    158    F.   593,   87 

Supp.    1909,    p.     1309),    although    it    also  C.  C.  A.  23,  reversed.     Friday  v.  Hall.  etc.. 

maintains   two    country   stores,    largely   as  Co.,  216  U.  S.  449,  54  L.  Ed.  562,  30  S.  Ct. 

an   incident   to   the   location   of  its   hotels  261. 

in    a    thinly    settled    mountainous    region.  814-64.       Enumeration      of     bankruptcy 

Toxaway   Hotel   Co.   v.    Smathers    &   Co.,  courts   under    act    of    1898,    §§  1  and   2.— 

216  U.  S.  439,  54  L.  Ed.  558,  30  S.  Ct.  263;  Babbitt   v.    Butcher,    216    U.    S.    102,    54    L. 
Nollman  &  Co.  v.  Wentworth  Lunch  Co.,  Ed.  402,  30  S.  Ct.  372. 

217  U.   S.  591,  54  L.   Ed.  895.  30  S.  Ct.  694. 

170 


Vol.  II. 


BAXKRUPTCY. 


815-827 


2.    JuRiSDicTiox  AND  PowERS — a.    In  General. — See  note  67. 

Ancillary  Jurisdiction.— In  a  case  in  which  the  original  court  of  bank- 
ruptcy can  act  summarily,  another  court  of  bankruptcy,  sitting  in  another  dis- 
trict, can  do  so  in  aid  of  the  court  of  original  jurisdiction.'^"^ 

b.    Enumeration    of    Specific    Pozvers—(7)     Collection    and   Distribution    of 

Bankrjipt  Estates,  and  Determination  of  Controversies  Relating  Thereto. See 

r.ote  76. 

B.  Jurisdiction  of  United  States  and  State  Courts  in  Controversies 
Other  than  Bankruptcy  Proceedings—!.  Proceedings  between  Trustees 
AND  Adverse  Claimants  of  Bankrupts'  Property — b.  Under  Present  Bank- 
rupt Act. — See  note  4. 


815-67.      Jurisdiction      and       Powers. — 

"Section  2  of  the  Bankruptcy  Act  invests 
the  courts  of  bankruptcy  Svith  such  juris- 
diction at  law  and  in  equity  as  will  enable 
them  to  exercise  original  jurisdiction  in 
bankruptcy  proceedings." '"  United  States 
Fidelity,  etc.,  Co.  v.  Bray,  225  U.  S.  205. 
216,  56  L.   Ed.  1055,  32  S.  Ct.  620. 

"The  jurisdiction  of  the  bankruptcy 
courts  in  all  'proceedings  in  bank- 
ruptcy' is  intended  to  be  exclusive  of  all 
other  courts,  and  such  proceedings  in- 
clude, among  others,  all  matters  of  ad- 
ministration, such  as  the  allowance,  re- 
jection and  reconsideration  of  claims,  the 
reduction  of  the  estates  to  money  and  its 
<listribution,  the  determination  of  the  pref- 
erences and  priorities  to  be  accorded  to 
claims  presented  for  allowance  and  pay- 
ment in  regular  course,  and  the  supervision 
and  control  of  the  trustees  and  others 
Avho  are  employed  to  assist  them."  United 
States  Fidelity,  etc..  Co.  v.  Bray,  225  U. 
S.    205,   217,    56    L.    Ed.    1055,    32    S.    Ct.   620. 

815-6ra.  Ancillary  jurisdiction  of  court 
sitting  in  another  district. — Babbitt  :■. 
Butcher,  216  U.  S.  102,  54  L.  Ed.  402,  30 
S.  Ct.  372;  In  re  Elkus,  216  U.  S.  115,  54 
L.  Ed.  407,  30  S.  Ct.  377. 

A  federal  district  court  has  jurisdiction 
to  grant  an  order  for  the  examination  of 
witnesses  who  are  residents  of  the  dis- 
trict, on  the  application  of  a  trustee  in 
bankruptcy,  appointed  in  proceedings  in 
bankruptcy  pending  in  another  district. 
In  re  Elkus,  216  U.  S.  115,  54  L.  Ed.  407, 
30  S.  Ct.  377. 

Since  the  decisions  in  Babbitt  v.  But- 
cher, 216  U.  S.  102,  54  L.  Ed.  402,  30  S.  Ct. 
372,  and  In  re  Elkus,  216  U.  S.  115,  54  L. 
Ed.  407,30  S.  Ct.  377,  Congress  passed  the 
act  of  June  25th,  1910,  36  Stat.  838,  c.  412, 
amending  the  bankruptcy  law,  specifically 
giving  ancillary  jurisdiction  over  persons 
and  property'  within  their  respective  terri- 
torial limits  to  the  district  courts  of  the 
United  States  in  aid  of  the  receiver  or 
trustee  appointed  in  a  bankruptcy  pro- 
ceeding pending  in  another  court  of  bank- 
ruptcy. Acme  Harvester  Co.  v.  Beekman 
Lumber  Co.,  222  U.   S.  300.  56  L.   Ed.  208. 


32    S.    Ct.   96.      See.   also,   post,   COURTS. 

818-76.  Collection  and  distribution  of 
estates,  etc. — Ex  parte  First  Nat.  Bank, 
207  U.  S.  61,  52  L.  Ed.  103,  28  S.  Ct.  23. 

827-4.  Amendment  of  February,  1903. 
— A  federal  Bistrict  Court  has  jurisdiction 
to  entertain  proceedin-gs  instituted  by  a 
trustee  in  bankruptcj%  dul}^  appointed  in 
a  bankruptcy  proceeding  pending  in  an- 
other district,  to  compel  the  officers  of 
the  bankrupt  to  deliver  to  such  trustee 
the  documents  in  their  possession  relating 
to  the  business  of  the  bankrupt,  since  the 
general  jurisdiction  conferred  on  bank- 
ruptcy courts  by  Bankr.  Act  July  1,  1898, 
c.  541,  §  2,  30  Stat.  545  (U.  S.  Comp.  St. 
1901,  p.  3420),  is  not  cut  down,  so  far  as 
summary  jurisdiction  is  concerned,  by 
the  provisions  of  section  23a  (30  Stat.  552, 
c.  541,  U.  S.  Comp.  St.  1901,  p.  3431)  and 
23b  (Act  1898,  as  amended  by  Act  Feb.  5, 
1903,  32  Stat.  798,  c.  487  [U.  S.  Comp.  St. 
Supp.  1909,  p.  1312]),  section  60,  subd.  "b," 
or  section  67,  subd.  "e"  (32  Stat.  800.  c. 
487  [U.  S.  Comp.  St.  Supp.  1909,  pp.  1315. 
1316]),  which  aflfect  only  those  cases 
where  there  is  a  claim  of  adverse  title 
based  upon  a  transfer  antedating  the 
bankruptc3^  Babbitt  v.  Butcher,  216  U. 
S.  102,  54  L.   Ed.  402,  30  S.  Ct.  372. 

A  suit  by  the  trustee  in  bankruptcy  to 
recover  property  held  by  a  third  person, 
which,  if  the  allegations  of  the  petition 
are  true,  belonged  to  the  bankrupt,  and 
consequently  passed  to  the  trustee  as  the 
representative  of  the  bankrupt's  estate,  is 
not  made  justifiable  in  the  bankruptcy 
court  by  the  provision  of  the  Bankr.  Act 
July  1,  1898.  c.  541,  §  70e,  30  Stat.  565  (U. 
S.  Comp.  St.  1901,  p.  3452),  as  amended  by 
Act  Feb.  5.  1903,  c.  487,  §  16,  32  Stat.  800 
(U.  S.  Comp.  St.  Supp.  1909,  p.  1316), 
conferring  concurrent  jurisdiction  on 
courts  of  bankruptcy  of  suits  by  the  trus- 
tee to  avoid  any  transfer  of  the  bankrupt's 
property  which  his  creditors  might  have 
avoided,  and  to  recover  such  property,  or 
its  value,  from  persons  who  are  not  bona 
fide  holders  for  value.  Harris  v.  First 
Xat.  Bank.  216  U.  S.  382,  54  L.  Ed.  528,  30 
S.  Ct.  296. 


171 


828-829 


BANKRUPTCY. 


Vol.  II. 


C.  Appellate  Jurisdiction — 1.  Jurisdiction  of  Controversies  Arising 
IN  Bankruptcy  Proceedings. — See  notes  8,  9. 

2.  Supervisory  Jurisdiction  in  Matters  of  Law  over  Superior  Courts! 
oE  Bankruptcy — a.  Right  to  Exercise. — See  note  12. 


828-8.  Jurisdiction  of  controversies 
arising  in  bankruptcy  proceedings. — Con- 
troversies arising  in  bankruptcy  proceed- 
ings, as  distinguished  from  bankruptcy 
proceedings,  are  appealable  to  the  circuit 
court  of  appeals  under  the  Court  of  Ap- 
peals Act  of  March  3,  J891.  Matter  of 
Loving,  224  U.  S.  183,  56  L.  Ed.  725,  32 
S.  Ct.  446;  Coder  v.  Arts,  213  U.  S.  223, 
53  L.  Ed.  772,  29  S.  Ct.  436. 

"The  proceeding  under  §  24b,  permitting 
a  review  of  questions  of  law  arising  in 
bankruptcy  proceedings,  was  not  intended 
as  a  substitute  for  the  right  of  appeal  un- 
der §  25.  Coder  v.  Aits,  213  U.  S.  223, 
233,  53  L.  Ed.  772,  29  S.  Ct.  436.  Un- 
der §  24b  a  question  of  law  only  is 
taken  to  the  circuit  court  of  appeals;  un- 
der the  appeal  section,  controversies  of 
fact  as  well  are  taken  to  that  court,  with 
findings  of  fact  to  be  made  therein  if  the 
case  is  appealable  to  this  court.  We  do 
not  think  it  was  intended  to  give  to  per- 
sons who  could  avail  themselves  of  the 
remedy  by  appeal  under  §  25  a  review  by 
petition  under  §  24b.  The  object  of  §  24b 
is  rather  to  give  a  review  as  to  matters  of 
law,  where  facts  are  not  in  controversy, 
of  orders  of  courts  of  bankruptcy  in  the 
ordinary  administration  of  the  bankrupt's 
estate."  Matter  of  Loving,  224  U.  S.  183, 
56  L.  Ed.  725,  32  S.  Ct.  446. 

"In  our  judgment  the  rule  was  well 
stated  in  In  re  Mueller,  68  C.  C.  A.  349, 
135  Fed.  711,  by  Mr.  Justice  Lurton,  then 
circuit  judge  (p.  715)  :  "The  'proceedings' 
reviewable  (under  §  24b)  are  those  ad- 
ministrative orders  and  decrees  in  the 
ordinary  course  of  a  bankruptcy  between 
the  filing  of  the  petition  and  the  final 
settlement  of  the  estate,  which  are  not 
made  specially  appealable  under  25a.  This 
would  include  questions  between  the 
bankrupt  and  his  creditors  of  an  adminis- 
trative character,  and  exclude  such  mat- 
ters as  are  appealable  under  §  24a." 
Matter  of  Loving,  224  U.  S.  183,  56  L  Ed. 
725,    32    S.    Ct.   416. 

828-9.  Further  provisions  of  §  24a. — 
Armstrong  v.  Fernandez,  208  U.  S.  324, 
52  L.  Ed.  514,  28  S.  Ct.  419. 

The  disallowance  of  certain  claims 
against  a  bankrupt's  estate  by  the  district 
court  of  the  United  States  for  Porto  Rico, 
sitting  as  a  court  of  bankruptcy,  is  not 
reviewable  in  the  federal  Supreme  Court 
under  Bankrupt  Act  July  1,  1898,  c.  541, 
§  24a,  30  Stat.  553  (U.  S.  Comp.  St.  1901, 
p.  34.31),  investing  that  court  with  appel- 
late jurisdiction  of  "controversies  arising 
in  bankruptcy  proceedings''  from  the 
courts  of  bankruptcy  from  which  it  has 
appellate  jurisdiction   in   other  cases,   and 


"a  like  jurisdiction"  from  courts  of  bank- 
ruptcy not  within  any  organized  circuit, 
since  the  allowance  or  disallowance  of  a 
claim  in  bankruptcy  is  not  a  controversy 
arising  in  bankruptcy  proceedings,  but  is 
a  proceeding  in  bankruptcy,  the  mode  of 
reviewing  which  is  confined,  by  §  25a,  to 
an  appeal  to  the  appropriate  circuit  court 
of  appeals  or  territorial  Supreme  Court. 
Tefft,'etc.,  Co.  v.  Munsuri,  222  U.  S.  114, 
56  L.   Ed.  118,  32  S.  Ct.  67. 

The  right  to  have  an  order  of  the  dis- 
trict court  of  the  United  States  for  Porto 
Rico,  sitting  as  a  court  of  bankruptcy, 
disallowing  certain  claims  against  a 
bankrupt's  estate,  reviewed  in  the  federal 
supreme  court,  must  be  found  in  the  bank- 
rupt act,  which  furnishes  the  exclusive 
modes  of  review  of  questions  arising  in 
steps  in  proceedings  in  bankruptcy.  Tefift, 
etc.,  Co.  V.  Munsuri,  222  U.  S.  114,  56  L 
Ed.  118,  32  S.  Ct.  67. 

An  order  of  a  court  of  bankruptcy  in  a 
proceeding  in  which  there  was  a  contro- 
versy between  the  creditors  and  one  of 
the  members  of  a  bankrupt  partnership 
as  to  whether  he  was  liable  as  a  general 
or  limited  partner  can  not  be  regarded  as 
rendered  in  a  controversy  arising  in  bank- 
ruptcy proceedings  for  the  purpose  of 
sustaining  an  appeal  to  the  federal  su- 
preme court  under  Bankr.  Act  July  1, 
1898,  c.  541,  §  24a,  30  Stat.  553  (U.  S. 
Comp.  St.  1901,  p.  3431),  where  such  ap- 
peal was  specifically  taken  from  the  or- 
der as  one  disallowing  the  claim  of  the 
appellants  of  an  alleged  .indebtedness  to 
them  from  the  bankrupt  firm,  and  such 
was  the  character  necessarily  attributed 
to  the  order  by  the  judge  when  he  entered 
it,  and  which  was  affixed  to  it  by  the  as- 
signments of  error  filed  at  the  time  the 
appeal  was  taken.  Tefift,  etc.,  Co.  z'.  Mun- 
suri, 222  U.  S.  114,  56  L.  Ed.  118,  32  S. 
Ct.   67. 

829-12.  Under  act  of  1898,  §  24b.— A 
decision  of  a  Circuit  Court  of  Appeals, 
affirming,  on  the  revisory  proceeding  au- 
thorized by  Bankr.  Act  July  1,  1898,  c. 
541.  §  24b,  30  Stat.  553  (U.  S.  Comp.  St. 
1901,  p.  3432),  an  interlocutory  order  of 
the  court  of  bankruptcy  which  overruled 
a  motion  to  dismiss  the  proceedings,  can 
not  preclude  a  writ  of  error  from  the  fed- 
eral supreme  court  to  the  bankruptcy 
court  to  review  the  final  decision,  bringing 
up  the  question  of  the  jurisdiction  of  that 
court  to  make  an  adjudication  of  bank- 
ruptcy on  a  claim  for  unliquidated  dam- 
ages. Judgment  (D.  C.  1903)  In  re  Fred- 
eric L.  Grant  Shoe  Co.,  125  F.  576,  af- 
firmed. Grant  Shoe  Co.  v.  Laird  Co.,  212 
U.  S.  445,  53   L.  Ed.  591,  29  S.  Ct.  332. 


172 


Vol.  II. 


BAXKRUPTCY. 


831-834 


c.    EA-ercisc    of   Pozi'er  Not   Reviezuahle  on  Appeal  to   Supreme    Court. See 

note  17. 

3.  AppjSals  in  Bankruptcy  Proceedings— a.  From  Courts  of  Bankruptcy 
to  Courts  of  Appeal— (!)  When  Proper,  and  to  What  Courts  Taken —See 
notes,  19,  20,  22. 

(2)    When  to  Be  Taken. — ^See  note  24. 


831-17.  Net  reviewable  on  appeal  to 
supreme  court. — "Before  the  repeal  of 
the  Bankruptcy  Act  of  18G7  the  decision 
of  the  circuit  court  would  have  been 
final.  Wiswall  v.  Campbell,  93  U.  S.  347, 
348,  23  L.  Ed.  923,  and  cases  cited;  Cleve- 
land Ins.  Co.  V.  Globe  Ins.  Co.,  98  U.  S. 
366,  25  L.  Ed.  201.  In  view  of  the  saving 
clause  of  the  repealing  act  of  June  7,  1878, 
20-  Stat.  99,  we  are  of  opinion  the  review 
of  such  an  order  was  not  provided  for  by 
the  Judiciary  Act  of  1891."  Kyle  v.  Ham- 
mond, 225  U.  S.  692,  56  L.  Ed.  1260,  32  S. 
Ct.  406. 

The  right  to  have  an  order  of  the  dis- 
trict court  of  the  United  States  for  Porto 
Rico,  sitting  as  a  court  of  bankruptcy, 
holding  a  member  of  a  bankrupt  partner- 
ship to  be  a  general  partner  and  generally 
liable  for  the  firm  debts,  reviewed  by  the 
federal  supreme  court,  must  be  found  in 
the  bankruptcy  act.  Munsuri  v.  Fricker, 
222  U.   S.   121,  56  L.  Ed.  121,  32   S.   Ct.  70. 

No  support  can  be -found  in  the  pro- 
visions of  Bankr.  Act  July  1,  1898,  c.  541, 
§  24b,  30  Stat.  553  (U.  S.  Comp.  St.  1901, 
p.  3432),  authorizing  a  petition  to  super- 
intend and  revise  in  matters  of  law  the 
proceedings  of  courts  of  bankruptcy,  for 
an  attempt  to  have  reviewed  in  the  fed- 
eral supreme  court  an  order  of  the  dis- 
trict court  of  the  United  States  for  Porto 
Rico,  sitting  as  a  court  of  bankruptcy, 
holding  a  member  of  a  bankrupt  partner- 
ship to  be  a  general  partner  and  gen- 
erally liable  for  the  firm  debts.  Munsuri 
V.  Fricker,  222  U.  S.  121,  56  L.  Ed.  121,  32 
S.  Ct.  70,  following  Tefift,  etc.,  Co.  v.  Mun- 
suri, 222  U.  S.  114.  56  L.  Ed.  118,  32  S.  Ct. 
67.  See,  also,  Andrews  v.  Partridge,  225 
U.  S.  696,  56  L.  Ed.  1261,  32  S.  Ct.  835. 

An  attempt  to  have  reviewed  in  the 
federal  supreme  court  an  order  of  the  dis- 
trict court  of  the  United  States  for  Porto 
Rico,  sitting  as  a  court  of  bankruptcy, 
holding  a  member  of  a  bankrupt  partner- 
ship to  be  a  general  partner  and  gen- 
erally liable  for  the  firm  debts,  can  not 
be  sustained  under  Judiciary  Act  March 
3,  1891,  c.  517,  §  5,  26  Stat.  827  (U.  S. 
Comp.  St.  1901,  p.  549),  as  an  appeal 
solely  upon  the  question  of  jurisdiction. 
Munsuri  v.  Fricker,  222  U.  S.  121,  56  L. 
Ed.  121.  32  S.  Ct.  70. 

832-19.  Review  of  order  establishing 
lien  against  bankrupt  estate. — An  order 
establishing  as  a  lien  against  the  bank- 
rupt estate  a  claim,  the  validity  of  which 
as  a  general  claim  the  trustee  does  not 
contest,   is   not   reviewable    by     a     circuit 


court  of  appeals,  in  the  exercise  of  its 
power  under  the  bankrupt  act  of  July  1 
1898  (30  Stat,  at  L..553,  chap.  541,  U. 
S.  Comp.  Stat.  1901,  p.  3432),  §  24b,  to 
superintend  and  revise  in  matter  of  law 
the  preceedings  of  inferior  courts  of  bank- 
ruptcy, since  this  revisory  proceeding  is 
not  intended  as  a  substitute  for  the  ap- 
peal which  would  lie  under  §  25a,  giving 
appellate  jurisdiction  to  the  circuit  courts 
of  appeals  in  bankruptcy  proceedings. 
Matter  of  Loving,  224  U.  S.  183,  56  L. 
Ed.  725.  32  S.  Ct.  446. 

833-20.  Adjudication  as  to  bankruptcy 
of  defendant. — Armstrong  z'.  Fernandez 
208  U.   S.  324,  52  L.   Ed.  514,  28   S.  Ct.  419. 

833-22.  Allowance  or  rejection  of  claim. 
— A  proceeding  in  bankruptcy  within  the 
meaning  of  Bankr.  Act  July  1,  1898,  c. 
541,  §  25,  30  Stat.  553  (U.  S.  Comp.  St. 
1901,  p.  3432),  providing  for  appeals  in 
bankruptcy  proceedings  from  courts  of 
bankruptcy  to  the  circuit  courts  of  ap- 
peals to  review  judgments  allowing  or  re- 
jecting a  debt  or  claim  of  $500  or  more, 
is  instituted  by  presenting  to  the  trustee 
in  bankruptcy  a  claim  upon  notes  of  the 
bankrupt  in  excess  of  that  amount,  joined 
with  the  statement  that  the  claimant  had 
security  upon  the  estate  which  it  was  his 
purpose  to  maintain,  and  upon  which  he 
was  entitled  to  priority  in  the  distribution 
of  the  assets,  although  the  trustee  makes 
no  objection  to  the  amount  found  due 
upon  the  notes,  and  only  seeks  by  his 
appeal  to  contest  further  the  right  to 
security.  Judgment  (1907)  In  re  Coder, 
152  F.  943,  82  C.  C.  A.  91,  15  L.  R.  A. 
(N.  S.)  372;  In  re  Arts,  Id.;  Arts  v.  Coder, 
id.,  afifirmed.  Coder  v.  Arts,  213  U.  S.  223, 
53  L.  Ed.  772,  29  S.  Ct.  436. 

I'he  claims  of  a  creditor  against  a 
bankrupt  estate  have  been  rejected  so  as 
to  give  the  right  to  appeal  where  he  in- 
sisted that  his  claims  were  for  a  definite 
amount,  viz.,  the  amount  stated  in  the 
proofs  of  debt,  less  the  sum  derived  from 
the  sale  of  collateral,  and  the  referee  de- 
clined to  allow  the  claims  as  established 
as  the  proof  stood,  and  the  bankruptcy 
court  approved  and  affirmed  the  ruling 
of  the  referee  as  a  disallowance  of  th6 
claims,  and  entered  an  order  accordingly. 
Decree,  In  re  Mertens  (1906),  144  F.  818, 
75  C.  C.  A.  548.  affirmed.  Hiscock  v. 
Varick  Bank,  206  U.  S.  28,  51  L.  Ed.  945, 
27  S.   Ct.  681. 

834-24.  Time  of  taking  appeal  under 
act  of  1898,  §  25a.— Brady  :■.  I'.crnard,  217 
U.  S.   595,  54  L.   Ed.  896,  30  S.   Ct.  695. 


173 


835-836 


BAXKRUPTCY. 


Vol.  II. 


b.    From   Final   Decisions    of    Court    of    Appeals  to    United  States   Supreme 
Court — (1)   When  Proper. — See  notes  26,  27,  28. 


835-26.  When  proper. — Clause  3,  of  the 
general  order  in  bankruptcy  xxxvi,  ap- 
plies to  appealable  cases  and  must  be  com- 
plied with.  Chapman  v.  Bowen,  207  U. 
S.  89,  52  L.  Ed.  IIG,  28   S.   Ct.  32. 

The  30-day  limitation  for  appeals  in 
bankruptcy  cases,  made  by  general  or- 
ders in  bankruptcy,  rule  36  (32  C.  C.  A. 
xxxvi),  does  not  apply  to  a  writ  of  error 
from  the  federal  supreme  court  to  a  court 
of  bankruptcy,  presenting  the  question  ot 
the  jurisdiction  to  make  an  adjudication 
of  bankruptcy  on  a  claim  for  unliquidated 
damages,  but  such  proceeding  is  gov- 
erned by  the  2-year  limitation  fixed  by 
Rev.  St.  U.  S.,  §  1008  (U.  S.  Comp.  St. 
1901,  p.  715),  and  Act  March  3,  1891,  c. 
517,  §§  4,  5,  26  Stat.  826,  827  (U.  S.  Comp. 
St.  1901,  pp.  548,  549).  Judgment  (D.  C. 
1903),  In  re  Frederick  L.  Grant  Shoe  Co., 
]25  F.  576,  affirmed.  Grant  Shoe  Co.  v. 
Laird  Co.,  212  U.  S.  445,  53  L.  Ed.  591,  29 
S.  Ct.  332. 

An  appeal  to  the  federal  supreme  court 
from  a  decree  of  a  circuit  court  of  ap- 
peals on  a  bill  in  equity  brought  by  a 
trustee  in  bankruptcy  to  set  aside  a  trans- 
fer made  by  the  bankrupt  in  fraud  of 
creditors  need  not  be  taken  within  the 
thirty  days  prescribed  by  General  Orders 
in  Bankruptcy  No.  36,  for  appeals  under 
the  bankrupt  act,  but  the  appellate  juris- 
diction being  under,  or  the  same  as  that 
under,  the  circuit  courts  of  appeals  act 
(Act  March  3,  1891,  c.  517,  §  6,  26  Stat. 
828  [U.  S.  Comp.  St.  1901,  p.  549]),  the 
appeal  is  in  time  if  taken  within  a  year. 
(1910)  Thomas  v.  Sugarman.  218  U.  S. 
129,  54  L.  Ed.  967,  30  S.  Ct.  650,  re- 
versing decree,  Same  v.  Sugarman 
(1907),  157  F.  669,  85  C.  C.  A.  337,  15  L. 
R.  A.  (N.  S.)   1267. 

836-27.  A  decision  of  a  circuit  court  of 
appeals  that  certain  creditors  from  whom 
a  bankrupt  obtained  goods  by  fraud 
were  entitled  to  preferential  payment 
of  their  claim,  presented  by  an  inter- 
vening petition  after  their  further  prose- 
cution of  an  action  of  replevin  against  a 
receiver  appointed  by  a  state  court  had 
been  enjoined  by  the  bankruptcy  court,  is 
not  reviewable  in  the  federal  supreme 
court,  as  involving  a  question  which 
would  sustain  a  writ  of  error  to  a  state 
court,  because  the  replevin  suit  in  the 
state  court  was  considered  by  the  circuit 
court  of  appeals  as  showing  the  purpose 
of  the  creditors  to  rescind  the  sale  of  the 
goods  replevied,  and  as  a  means  of  iden- 
tifying what  part  of  the  goods  sued  for 
was  in  the  possession  of  the  state  court, 
and,  afterwards,  what  proceeds  of  sales 
went  into  the  possession  of  the  bank- 
ruptcy court  under  an   order   of  the   state 


court  for  the  delivery  of  the  property  to 
the  receiver  in  bankruptcy,  upon  the  con- 
dition that  the  latter  should  assume  and 
pay  the  liabilities  incurred  in  the  state 
court.  Blake  v.  Openhym,  216  U.  S.  322, 
54  L.  Ed.  498,  30  S.  Ct.  309. 

A  decision  of  a  circtiit  court  of  appeals 
that  a  creditor  is  entitled  to  have  his 
claim  allowed  against  the  bankrupt  estate 
of  an  individual  partner  as  well  as  against 
the  estate  of  the  bankrupt  partnership, 
which  proceeds  upon  a  well-settled  prin- 
ciple of  general  law,  broad  enough  to 
sustain  it  without  reference  to  the  pro- 
visions of  Bankr.  Act  July  1,  1898,  c.  541, 
30  Stat.  544  [U.  S.  Comp.  St.  1901,  p. 
3418],  is  not  reviewable  in  the  federal  su- 
preme court  under  §  25b  of  that  act,  as  in- 
volving a  question  which  would  sustain  a 
writ  of  error  to  a  state  court.  Chapman 
V.  Bowen,  207  U.  S.  89,  52  L.  Ed.  116,  28 
S.  Ct.  32. 

The  bare  denial  by  a  trustee  in  bank- 
ruptcy of  a  claim  of  a  creditor  asserted 
under  Bankr.  Act  July  1,  1898,  c.  541,  30 
Stat.  544  [U.  S.  Comp.  St.  1901,  p.  3418], 
is  not  the  assertion  by  the  trustee  of  a 
right  under  such  statute,  so  as  to  give 
him  the  right  to  appeal  to  the  federal  su- 
preme court  from  a  decision  of  a  circuit 
court  of  appeals  in  favor  of  the  creditor, 
under  §  25b  of  that  act,  which  gives  such 
appeal  when  the  question  involved  is  one 
which  would  sustain  a  writ  of  error  to  a 
state  court.  Chapman  v.  Bowen,  207  U. 
S.  89,  52  L.  Ed.  116,  28  S.  Ct.  32. 

A  decision  of  a  circuit  court  of  appeals 
which  affirmed  a  ruling  of  the  bankruptcy 
court,  made  in  the  course  of  the  de- 
termination of  an  issue  as  to  the  alleged 
])ankruptcy,  upon  a  subordinate  issue  as 
to  whether  or  not  the  petitioning  credit- 
ors held  "provable"  claims,  is  not  a  final 
decision  allowing  or  rejecting  a  claim 
within  the  meaning  of  the  provisions  of 
the  bankrupt  act  of  July  1,  1898  (30  Stat, 
at  E.  553,  chap.  541,  U.  S.  Comp.  Stat. 
1901.  p.  3432),  §  25b,  governing  appeals 
to  the  federal  supreme  court.  Calnan  Co. 
V.  Dohertv,  224  U.  S.  145,  56  L.  Ed.  702, 
32  S.  Ct.  460. 

The  question  involved  in  a  proceeding 
in  bankruptcy  is  one  which  within  the 
meaning  of  Bankr.  Act  July  1,  1898,  c. 
541,  §  25b,  30  Stat.  553  (U.  S.  Comp.  St. 
1901,  p.  3432).  giving  appeals  to  the  fed- 
eral supreme  court,  would  have  sustained 
a  writ  of  error  from  that  court  had  the 
case  been  decided  by  the  highest  court  of 
the  state,  where,  in  determining  the 
validity  of  a  lien  asserted  to  secure  a 
claim  against  the  bankrupt's  estate,  a 
construction  of  the  bankrupt  act  is  di- 
rectly   involved,    one    party     asserting      a 


174 


Vol.  II. 


BAXKRUPTCY. 


836-844 


(2)    Record  on  Appeal. — See  note  29. 

VII.    Procedure  to  Obtain  Adjudication  of  Bankruptcy. 
B.    Involuntary  Proceedings— 3.    Bv  Whom  Instituted.— See  note  54. 


5.    Petition— a.   Definition. — See  note  60. 
c.    Aniendmcnt. — See  note  65. 


construction  which  would  defeat  the  lien, 
and  the  other  party  one  which  would 
give  it  validity.  Judgment  (1907).  In  re 
Coder,  152  F.  943,  82  C.  C.  A.  91,  15  L- 
R.  A.  (N.  S.)  372;  In  re  Arts,  Id.;  Arts  v. 
Coder.  Id.,  affirmed.  Coder  v.  Arts,  213 
U.  S.  223,  53  L.  Ed.  772,  29  S.  Ct.  436. 

Appeal  dismissed,  for  want  of  jurisdic- 
tion, on  authority  of  Coder  v.  Arts,  213 
U.  S.  223,  53  L.  Ed.  772,  29  S.  Ct.  436. 
Logan  V.  Farmers'  etc.,  Nat.  Bank,  214  U. 
S.  500.  53  L.  Ed.  1060,  29  S.  Ct.  698. 

An  appeal  lies  to  the  federal  supreme 
court  from  a  judgment  of  a  circuit  court 
of  appeals,  on  an  appeal  from  a  court  of 
bankruptcy,  sustaining  the  contention,  as- 
serted by  a  petition  in  intervention,  that 
advances  by  a  railway  company  to  enable 
a  coal  company  under  contract  to  supply 
the  railway  company  with  coal  to  meet 
its  pay  rolls  amount  to  a  pledge,  enforce- 
able as  a  prefer<=ntial  claim  against  the 
assets  of  the  bankrupt  estate  of  the  coal 
company  in  the  hands  of  its  trustees,  who 
assumed  and  continued  performance  of 
the  contract,  of  such  a  quantity  of  coal 
when  mined  as  the  inoneys  so  advanced 
would  pa5'  for  according  to  the  terms  of 
the  original  contract.  Judgment  (1907) 
Atchison,  T.  &  S.  F.  Vy.  Co.  f.  Hurlev, 
153  F.  503.  82  C.  C.  A.  453,  affirmed. 
Hurlev  v.  Atchison.  R.  Co..  213  U.  S.  126. 
53  E.   Ed.   729,  2<)   S.   Ct.   466. 

836-28.  Certificate  of  justice  of  su- 
preme court,  etc. — Chapman  v.  Bowen. 
207   U.   S._S9.  52  L.   Ed.   116,  28   S.   Ct.  32. 

Necessity  for  final  decision. — The  re- 
visory order  of  a  federal  circuit  court  of 
appeals  in  the  proceedings  authorized  by 
Bankr.  Act  July  I,  1898,  c.  541,  §  24b.  30 
Stat.  553  (U.  S.  Comp.  St.  1901,  p.  3432), 
which  reversed  a  decree  of  the  bank- 
ruptcy court,  confirming  the  order  of  the 
referee,  refusing  to  allow  a  certain  claim 
to  be  filed  for  the  purpose  of  voting  at 
the  election  of  the  trustee,  and  directed 
that  court  to  allow  the  claim  to  be  proved, 
is  not  reviewable  in  the  federal  supreme 
court,  even  if  the  ci''cuit  court  of  appeal^ 
treated  the  proceeding  as  an  appeal. 
Duryea  Power  Co.  v.  Sternbergh,  218  U. 
S.  299.  54  L.  Ed.  1047,  31  S.  Ct.  25. 

837-29.  Record  on  appeal. — Calnan  Co. 
v.  Dohertv.  224  U.  S.  145.  56  L.  Ed.  702, 
32  S.   Ct.  460. 

A  sufficient  compliance  witli  gen- 
eral order  No.  36  (18  Sup.  Ct.  ix), 
providing  that  appeals  under  the  bank- 
rupt act  from  the  supreme  court  shall  be 
taken   within    thirty   days   after   judgment. 


and  that  the  court  below  shall,  at  or  be- 
fore the  time  of  entering  the  judgment, 
make  and  file  findings  of  fact  and  con- 
clusions of  law,  which,  together  with  the 
pleadings  and  judgment,  shall  constitute 
the  record,  is  shown  where  the  appeal 
was  taken  within  thirty  days,  and  the 
circuit  court  of  appeals  made  its  findings 
of  fact  and  conclusions  of  law  part  of  the 
record  by  an  order  made  within  thirty 
days,  directing  the  same  to  be  filed  nunc 
pro  tunc  as  of  the  date  of  the  judgment. 
Judgment  (1907),  In  re  Coder,  152  F.  943 
82  C.  C.  A.  91,  15  L.  R.  A.  (N.  S.)  372; 
In  re  Arts,  Id.;  Arts  v.  Coder,  Id.,  af- 
firmed. Coder  V.  Arts,  213  U.  S.  223,  53 
L.   Ed.  772,  29  S.  Ct.  436. 

The  special  finding  of  fact  requisite  un- 
der general  order  in  bankruptcy  No.  36 
(89  F.  xiv.  32  C.  C.  A.  xxxvi),  on  an  ap- 
peal to  the  federal  supreme  court,  under 
Rankr.  Act  July  1,  1898,  c.  541,  §  25b,  30 
Stat.  553  (U.  S.  Comp.  St.  1901,  p.  3432). 
from  a  final  decision  of  a  circuit  court  of 
appeals  allowing  or  rejecting  a  claim  un- 
der that  act,  is  not  required  where  the 
decision  below  is  one  denying  the  right 
invoked  by  a  petition  in  intervention"  to 
have  the  lien  of  a  chattel  mortgage  es- 
tablished as  a  first  lien  on  the  property 
of  the  bankrupt,  and  satisfied  out  of  the 
proceeds  of  a  proposed  sale  by  the  trus- 
tee in  bankruptcy,  since  such  a  conten- 
tion presents  a  controversy  arising  in 
bankruptcy  proceedings  over  which  the 
circuit  courts  of  appeals,  under  §  24a  of 
the  bankrupt  act,  exercise  appellate  juris- 
diction as  in  other  cases,  and  the  circuit 
court  of  .ippeals  act  (Act  March  3,  1891. 
c.  517,  26  Stat.  826  [U.  S.  Comp.  St.  1901, 
p.  546]),  governs  the  manner  of  review 
in  the  supreme  court.  Decree  (1908), 
162  F.  675,  89  C.  C.  A.  467,  affirmed. 
Knapp  V.  Milwaukee  Trust  Co.,  216  U.  S. 
545,   54  L.   Ed.   610,  ?A)  S.  Ct.  412. 

841-54.  Who  may  institute. — ^Grant  Shoe 
Co.  T'.  Laird  Co.,  212  U.  S.  445.  53  L.  Ed. 
591,  29  S.  Ct.  332. 

843-60.  Effect  of  filing  petition  as  a 
caveat — In  effect  an  attachment  and  in- 
junction.— Acme  Harvester  Co.  v.  Beek- 
man  Lumber  Co.,  222  U.  S.  300,  56  L. 
Ed.  208,  32  S.  Ct.  9f). 

844-65.  Amendment  showing  alleged 
bankrupt  dees  not  come  within  excepted 
classes  of  persons. — .\  court  of  bankruptcy 
does  not  abuse  its  discretion  by  ]ierniit- 
ting  a  defective  verification  of  an  involun- 
tary petition  to  be  cured  by  amendment, 
or  by  allowing  an  amendment  to  such  pe- 


175 


845-852 


BANKRUPTCY. 


Vol.  II. 


8.  Appearance  and  Pleading  by  Bankrupt  or  Creditors — a.   Right  to  Ap- 
pear and  Plead  to  Petition. — See  note  69. 

9.  Hearing   and    Adjudication — a.    Duty    of   Judge    to   Determine    Issues 
Where  Allegations  of  Petition  Controverted. — See  note  74. 

IX.    Protection  of  Property  and  Rights  of  Creditors  Pending  Ad- 
judication and  Appointment  of  Trustee. 

B.  Injunctions  to  Restrain  Interference. — See  note  96. 

C.  Receivers — 2.    Powers  and  Duties. — See  notes  2,  4. 


tition  to  show  that  the  alleged  bankrupt 
does  not  come  within  the  excepted  classes 
of  persons  who  may  not  be  declared 
bankrupt.  Armstrong  v.  Fernandez,  208 
U.  S.  324,  53  L.  Ed.  514,  28  S.  Ct.  419. 

845-69.  Waiver  of  objections  not  raised 
by  creditors  below. — The  objection  of  the 
want  of  evidence  or  findings  respecting 
the  acts  of  bankruptcy  is  not  available  on 
appeal  from  the  adjudication  of  bank- 
ruptcy to  creditors  who  only  contested 
the  proceedings  on  the  ground  of  the  oc- 
cupation of  the  alleged  bankrupt.  and 
raised  no  objection  below  to  the  want  of 
proof  of  the  acts  of  bankruptcy,  and 
asked  no  findings  in  respect  thereto,  and 
did  not  object  to  the  findings  that  were 
made  for  deficiencies  in  that  regard.  Arm- 
strong V.  Fernandez,  208  U.  S.  324,  52  L. 
F:d.  514,  28  S.  Ct.  419. 

845-74.  Duty  of  court  to  promptly  de- 
termine question  of  adjudication. — Acme 
Harvester  Co.  z'.  Beeknian  Lumber  Co., 
222  U.   S.  300,  56  L.   Ed.  208,  32   S.  Ct.  96. 

851-96.  Issuance  of  ex  parte  injunction 
against  suit  in  state  outside  jurisdiction 
of  district  court. — A  federal  district  court 
sitting  as  a  court  of  bankruptcy  has  no 
power  to  issue  an  ex  parte  injunction 
without  notice  or  service  of  process,  at- 
tempting to  restrain  a  creditor  from  suing 
in  a  state  outside  the  jurisdiction  of  the 
district  court,  but  such  proceeding  could 
only  have  binding  force  upon  the  creditor 
if  jurisdiction  were  obtained  over  it  by 
ancillary  proceedings  in  a  court  having 
jurisdiction,  and  upon  service  of  process 
upon  such  creditor.  Acme  Harvester  Co. 
V.  Beekman  Lumber  Co.,  222  U.  S.  300,  56 
Iv.  Ed.  208,  32  S.  Ct.  96,  affirming  judg- 
ment (1908),  Beekman  Lumber  Co.  v. 
Acme  Harvester  Co.,  114  S.  W.  1087,  215 
Mo.  221. 

Vacation  by  a  bankruptcy  court  of  its 
order  enjoining  any  interference  under 
process  from  a  state  court  with  property 
then  in  the  possession  of  its  receiver  is 
not  an  abandonment  of  its  possession  of 
the  property,  and  a  turning  over  of  such 
property  to  be  dealt  with  by  the  state 
court,  where,  in  the  meantime,  there  had 
been  various  dealings  with  the  property 
by  the  bankruptcy  court,  including  sale 
by  the  trustee.  Judgment  (1907),  John 
Hofman  Co.  v.  Murphy,  80  N'.  E.  1111, 
187  N.  Y.  548,  reversed.     Murphy  v.  Hof- 


man Co.,  211  U.  S.  562,  53  L.  Ed.  327,  29 
S.  Ct.  154.  See,  also,  post,  INJUNC- 
TIONS. 

852-2.  Power  of  court  to  require  de- 
posit of  books  of  account  with  receiver. 
— Requiring  the  bankrupt  to  deposit  his 
books  of  account  in  the  office  of  the  re- 
ceiver, there  to  remain  in  the  custody  of 
the  bankrupt,  who  is  to  alTord  the  re- 
ceiver free  opportunity  to  inspect  them, 
the  receiver  to  use  and  permit  them  to 
be  used  only  for  the  purpose  of  the  civil 
administration  of  the  bankrupt  estate,  and 
not  for  any  criminal  proceeding,  .  is  a 
proper  exercise  of  the  authority  of  the 
bankruptcy  court,  and  does  not  compel 
the  bankrupt  to  be  a  witness  against  him- 
self in  a  criminal  case  in  the  constitu- 
tional sense,  although  the  knowledge 
gained  from  the  books  may  be  used  to 
procure  other  evidence  for  use  against 
him  in  a  criminal  prosecution.  In  re 
Harris,  221  U.  S.  274,  55  L.  Ed.  732,  31  S. 
Ct.  557. 

A  trustee  in  bankruptcy  is  bound  by 
the  stipulation  of  the  receiver  in  bank- 
ruptcy, approved  bj'  the  referee,  on  the 
faith  of  which  the  bankrupt's  conditional 
vendor  surrendered  possession,  that  all 
the  property  in  dispute  should  be  deemed 
to  have  been  that  delivered  under  the 
conditional  contract  or  to  be  the  proceeds 
of  the  resale  of  property  so  delivered. 
Judgment,  In  re  E.  M.  Newton  &  Co., 
153  V.  841,  83  C.  C.  A.  23;  Swofiford  Bros. 
Dry  Goods  Co.  v.  Bryant,  Id.  (1907),  af- 
firmed. Bryant  v.  Swofiford  Bros.  Dry 
Goods  Co..  214  U.  S.  279,  53  L.  Ed.  997, 
29   S.   Ct.  614. 

852-4.  Goods  in  the  possession  of  a  re- 
ceiver in  bankruptcy  can  not  be  seized  on 
replevin  from  a  state  court  on  the  theory 
that  the  receiver  is  holding  them  as  an 
individual,  where  the  only  circumstance 
tending  to  support  such  theory  is  that, 
pending  the  settlement  of  a  dispute  over 
the  title,  and  for  no  other  reason  than 
that  the  dispute  existed,  the  goods  in 
question  were  not  included  in  the  schedule 
of  the  property  of  the  bankrupt  filed  by 
the  receiver.  Judgment  (1907),  John  Hof- 
man Co.  V.  Murphy,  80  N.  E.  1111,  187  N. 
Y.  548,  reversed.  Murphy  v.  Hofman  Co., 
211  U.  S.  562,  53  L.  Ed.  327.  29  S.  Ct.  154. 
And  see  post,  RECEIVERS. 


176 


Vol.  II. 


BAXKRUPTCY. 


853-881 


XI.    Duties,  Exemptions  and  Rights  of  Bankrupt. 
A.    Duties  of  Bankrupt. — See  notes  12,  13. 

XII.    Discharge  of  Bankrupt. 
A.    Definition. — See  note  24. 

E.  Application  and  Hearing  Thereon— 3.  Gr-\xtixg  or  Refusal  of  Dis- 
charge.— See  notes  36,  37. 

F.  Effect  of  Discharge— 1.  Upox  Debts  of  Baxkrupt— a.  In  General.— 
A  debt  owing  to  creditors  of  a  bankrupt  which  is  provable  in  the  bankruptcy 
proceedings  is  none  the  less  barred  by  a  discharge  granted  without  objection 
because  the  bankrupt  had  been  refused  a  discharge  in  a  prior  proceeding,  on  the 
objection  of  the  same  creditors,  in  respect  of  the  same  indebtedness,  where  the 
ground  for  the  refusal  does  not  appear,  and  the  debt  is  not  one  which,  by  the 
terms  of  the  bankruptcy  statutes,  is  excepted  from  the  operation  of  the  dis- 
charge.^^^ 

XV.    Proof  and  Allowance  of  Claims. 

A.  Proof— 2.  ^^'HAT  Debts  :\Iay  Be  Proved — b.  Unliquidated  and  Con- 
tingent Claims  against  Bankrupt. — See  note  3. 

B.  Allowance — 3.  Allowaxce  of  Claims  of  Secured  Creditors  axd 
Those  Havixg  Priority. — See  note  28. 


853-12.     Submission    to     examination. — 

Glickstein  f.  United  States.  2:22  U.  S. 
139.  56  L.  Ed.  128.  32  S.  Ct.  71. 

854-13.  Immunity  does  not  extend  to 
perjury  committed  on  examination. — 
The  grant  of  immunit}'  contained  in  the 
ninth  subdivision  of  §  7  of  the  bankruptcy 
act  does  not  bar  a  prosecution  for  perjury 
for  false  swearing  in  giving  testimony 
under  the  command  of  the  section. 
Glickstein  z:  United  States.  222  U.  S.  139. 
56  L.  Ed.  128.  3  S.  Ct.  71.  See  post.  WIT- 
NESSES. 

855-24.  Discharge  defined. — Bluthenthal 
T-.  Jones.  208  U.  S.  64.  52  L.  Ed.  390.  28 
S.   Ct.   192. 

858-36.  Discharge  in  absence  of  com- 
mission of  offense  punishable  by  imprison- 
ment.— Bluthenthal  r.  Jones.  208  U.  S.  64, 
52   L.    Ed.   390.  28   S.   Ct.   192. 

859-37.  Destruction,  concealment  or 
failure  to  keep  books  of  accounts,  etc. — 
Bluthenthal  :■.  Tones.  208  U.  S.  64.  52  L. 
Ed.  390,  28  S.  Ct.  192. 

859-38a.  Effect  of  refusal  of  discharge 
in  prior  proceeding. — Bluthenthal  r.  Tones. 
208  U.  S.  64,  52  L.  Ed.  390,  28  S.  Ct. 
192.  afifirming  decree  (1906),  51  Fla.  396. 
41   So.   533. 

874-3.  Unliquidated  claims  against 
bankrupt. — An  involuntary  petition  may 
be  based  on  a  claim  for  unliquidated  dam- 
ages arising  out  of  a  breach  of  warranty 
on  sale  of  personaItJ^  although  by  the 
provision  of  Bankr.  Act  Julj'  1.  1898.  c. 
541,  §  59b,  30  Stat.  561  (U.  S.  Comp.  St. 
1901,  p.  3445),  such  petitions  may  be  filed 
only  by  creditors  who  have  provable 
claims,  since,  if  the  claim  is  of  a  provable 
kind,  this  provision  is  satisfied;  and  the 
claim  in  question  is  provable  under  §  63a 


of  that  act,  as  founded  on  a  contract, 
even  if,  in  case  of  fraud,  there  may  be  an 
independent  claim  purely  in  tort.  Judg- 
ment (D.  C.  1903),  In  re  Frederic  L. 
Grant  Shoe  Co..  125  F.  576,  affirmed. 
Grant  Shoe  Co.  v.  Laird  Co.,  212  U.  S.  445. 
53  L.   Ed.  591.  29  S.  Ct.  332. 

881-28.  Allowance  of  claims  of  secured 
creditors,  etc. — Sexton  v.  Drevfus.  219  U. 
S.  339,  55  L.  Ed.  244,  31  S.  ^.'256. 

Secured  creditors  of  a  bankrupt,  selling 
their  security'  after  the  filing  of  the  peti- 
tion in  bankruptc}',  and  finding  the  pro- 
ceeds insufficient  to  pay  the  whole  amount 
of  their  claims,  are  not  entitled  to  apply 
such  proceeds  first  to  interest  accrued 
since  the  filing  of  the  petition,  then  to 
the  principal  debt,  and  then  prove  for  the 
balance,  although,  bj^  Bankr.  Act  July  1. 
1898.  c.  541.  §§  57h,  '67d.  30  Stat.  560.  565 
(U.  S.  Comp.  St.  1901.  pp.  3443,  3449), 
§  67d,  liens  remain  unaffected  by  that 
statute,  and  the  value  of  securities  is,  by 
§  57h,  to  be  determined  by  converting 
them  into  money,  "according  to  the  terms 
of  the  agreement."  Sexton  z-.  Dreyfus,  219 
U.  S.  339.  55  L.  Ed.  244.  31  S.  Ct.  256,  re- 
versing decree  (C.  C.  A.  1910)  In  re  Kess- 
ier,  180  F.  979.  103  C.  C.  A.  582. 

Interest  and  dividends  accruing  upon 
pledged  securities  after  the  filing  of  a 
petition  in  bankruptcj-  against  the  pledgor 
may  be  first  applied  by  the  pledgees  to 
the  after-accruing  interest  upon  the  debt. 
Sexton  r.  Dreyfus.  219  U.  S.  339.  55  L. 
Ed.  244.  31  S.  Ct.  256,  reversing  decree 
CC.  C.  A.  1910)  In  re  Kessler,  180  F.  979, 
103  C.  C.  A.  582. 

A  creditor  holding  security  liquidated 
after  the  filing  of  the  bankruptcy  petition 
is   entitled   to   interest   on  his   claim   after 


12  U   S   Enc— 12 


177 


882-891 


BANKRUPTCY. 


Vol.  11. 


4.  AlIvOwance  of  Claims  of  CrFditors  Who  Havf  Rfcfived  Prfferfnce. 
— See  note  29. 

XVI.    Trustees  or  Assignees. 

E.  Rights,  Powers,  Duties,  and  Liabilities — 1.  Rights  and  Powers — 
b.  Title  and  Rights  as  to  Property  of  Bankrupt — (1)  General  Rules — 
(a)  Vested  with  Title  to  All  Unexempt  Property  of  Bankrupt — aa.  Rule 
Stated. — See  notes  62,  63. 

bb.    Power  of  Court  to  Compel  Surrender  to  Trustee. — See  note  66. 

c.    Takes  Title  Subject  to  Equities  and  Bncumbrances. — See  note  69. 


the  filing  of  the  petition,  where  the  pro- 
ceeds of  the  sales  of  the  security  are  in- 
adequate to  pay  the  face  of  the  claim. 
(C.  C.  A.  1910)  In  re  Kessler,  180  F.  979, 
103  C.  C.  A.  582.  affirming  order  In  re 
Kessler  &  Co.  (D.  C.  1909)  171  F.  751. 
Decree  reversed  in  Sexton  v.  Dreyfus 
219  U.   S.  339,  55  L.   Ed.  244,  31  S.  Ct  256. 

882-29.  A  creditor  compelled  to  sur- 
render an  unlawful  preference  may  prove 
his  claim,  and  receive  a  dividend  upon  an 
equality  with  the  other  creditors.  Decree 
(1906)  149  F.  194,  79  C.  C.  A.  153,  reversed. 
Page  V.  Rogers,  211  U.  S.  575,  53  L.  Ed. 
332,  29  S.  Ct.  159. 

A  court  of  bankruptcy,  in  compelling 
a  surrender  of  an  unlawful  preference, 
should  permit  the  creditor  to  prove  his 
claim  against  the  bankrupt  estate,  and 
deduct  from  the  amount  of  the  preference 
which  he  is  required  to  surrender  the 
dividend  which  the  court  finds  is  coming 
to  him.  Page  v.  Rogers,  211  U.  S.  575, 
53  L.  Ed.  332,  29  S.  Ct.  159. 

Payments  held  not  to  constitute  prefer- 
ences which  must  be  surrendered. — Pay- 
ments made  on  an  open  account  for  goods 
sold  and  delivered  within  four  months 
prior  to  an  adjudication  in  bankruptc3^ 
which  are  received  in  good  faith,  without 
the  creditor's  knowledge  of  the  debtor's 
insolvency,  the  account  being  made  up 
of  debts  and  credits,  leaving  a  net  amount 
due  from  the  bankrupt's  estate,  do  not 
constitute  preferences  which  the  creditor 
is  bound  to  surrender  before  proving  his 
claim.  Judgment  (1907)  153  F.  562.  82  C. 
C.  A.  516.  reversed.  Wild  &  Co.  v.  Provi- 
dent Life,  etc.,  Co.,  214  U.  S.  292,  53  L. 
Ed.  1003.  29  S.   Ct.  619. 

888-62.  Title  vests  as  of  date  when  ad- 
judged bankrupt. — Knapp  v.  Milwaukee 
Trust  Co.,  216  U.  S.  545,  54  L.  Ed.  610,  30 
S.  Ct.  412. 

890-63.  Takes  title  to  all  unexempt 
property. — Knapp  :■.  Milwaukee  Trust  Co., 
216  U.  S.  545,  54  L.  Ed.  610,  30  S.  Ct. 
412. 

893-66.  Court  may,  in  summary  way, 
compel  surrender  to  trustee. — A  court  of 
bankruptcy  has  power  upon  a  petition  and 
rule  to  show  cause,  there  being  no  adverse 
holding  to  compel  delivery  to  the  trustee 
of  the  records  and  stock  books  of  the 
corporate   bankrupt.     Babbitt  v.   Dutcher, 


21G  U.   S.  102,  54  L.   Ed.  402,   30  S.   Ct.  372. 

894-69.  Takes  subject  to  equities,  liens 
or  encumbrances. — Hurley  v.  Atchison, 
etc..  R.  Co.,  213  U.  S.  126,  53  L.  Ed.  729,  29 
S.   Ct.  466. 

A  title  which  is  good  as  against  a  bank- 
rupt and  his  creditors  at  the  time  the 
trustee's  title  accrues  does  not  pass  to 
the  trustee,  and  such  property  or  its  pro- 
ceeds, if  sold,  should  be  restored  to  the 
true  owner.  Judgment,  In  re  Jacob, 
Berry  &  Co.  (1906)  149  F.  176,  79  C.  C. 
A.  124.  affirmed.  Thomas  v.  Taggart,  209 
U.  S.  385.  52  L.  Ed.  845,  28  S.  Ct.  519. 

The  advantage  derived  from  a  mistake 
made  by  a  bankrupt  when  reducing  to 
writing  a  contract  made  by  him  is  not 
an  asset  in  the  hands  of  the  trustee  in 
bankruptcy,  as  part  of  the  bankrupt  es- 
tate. Judgment,  First  Nat.  Bank  z'.  Zart- 
man  (1907)  82  N.  E.  1126,  189  N.  Y.  533, 
affirmed.  Zartman  tj.  First  Nat.  Bank,  216 
U.  S.  134,  54  L.  Ed.  418.  30  S.  Ct.  368. 

The  trustee  in  bankruptcy  is  not  a  bona 
fide  purchaser  for  value,  so  as  to  bar  the 
reformation  in  equity,  for  mistake,  of  a 
contract  made  bj'  the  bankrupt  but  he 
takes  the  property  of  the  bankrupt  as  the 
latter  held  it  at  the  time  of  the  petition, 
subject  to  all  valid  claims,  liens,  and 
equities.  First  National  Bank  v.  Zartman, 
189  N.  Y.  533,  82  N.  E.  1126,  affirmed  in 
Zartman  v.  First  Nat.  Bank.  216  U.  S.  134, 
54   L.   Ed.   418.   30   S.   Ct.   368. 

Rights  of  pledgee. — Only  when  the  col- 
lateral held  by  secured  creditors  of  the 
bankrupt  has  not  been  disposed  of  by  the 
creditor  in  accordance  with  the  contract 
of  pledge  can  a  court  of  bankruptcy  exer- 
cise its  power,  under  Bankr.  Act  July  1, 
1898.  c.  541.  §  57h,  30  Stat.  560  [U.  S. 
Comp.  St.  1901,  p.  3443],  to  determine  the 
value  of  such  securities,  and  to  direct 
their  disposition.  Decree,  In  re  Mertens 
(1906),  144  F.  818,  75  C.  C.  A.  548,  af- 
firmed. Hiscock  z'.  Varick  Bank,  206  U. 
S.  28,  51  L.  Ed.  945,  27  S.  Ct.  681. 

A  sale  of  collateral  security  at  public 
auction,  without  notice,  and  the  purchase 
thereof  by  the  pledgee,  are  not  void  as 
against  the  trustee  in  bankruptcy  of  the 
pledgor,  in  the  absence  of  fraud,  where 
the  contract  of  pledge  permits  such  ac- 
tion, and  is  valid  under  the  law  of  the 
state  where   such   contract  was  made  and 


178 


Vol.  II. 


BANKRUPTCY. 


897-918 


(2)    Enumeration  of  Specific  Property  and  Rights  Passing  to  Trustee. — See 
notes  75,  81. 

XVII.    Administration  and  Distribution  of  Estate. 

D.    Payment    of   Taxes,  Priority   of  Debts,  and   Order  of   Payment — 

2.    Order    of  Priority    axd    Paymext    of    Debts — d.     Wages    of    Workmen, 
Clerks  or  Servants. — See  note  50. 


executed  and  was  to  be  performed.  De- 
cree, In  re  Mertens  (1906),  144  F.  818,  75 
C.  C.  A.  548,  affirmed.  Hiscock  v.  Varick 
Bank,  206  U.  S.  28,  51  L.  Ed.  945,  27  S.  Ct. 
681. 

The  burden  of  proving  that  a  sale  by 
a  pledgee  of  the  property  of  a  bankrupt, 
made  conformably  to  the  contract  of 
pledge,  was  unfair,  is  on  the  trustee  in 
bankruptcy  of  the  pledgor,  who  seeks  to 
avoid  the  sale.  Decree,  In  re  Mertens 
(1906),  144  F.  818,  75  C.  C.  A.  548,  af- 
firmed. Hiscock  V.  Varick  Bank,  206  U. 
S.  28,  51  L.  Ed.  945,  27  S.  Ct.  681. 

A  creditor  of  a  bankrupt  partnership 
may  apply  the  proceeds  of  the  sale  of 
collateral  in  his  hands,  the  property  of 
one  of  the  partners,  to  the  extinction  of 
the  individual  indebtedness  of  such  part- 
ner. Decree,  In  re  Mertens  (1906),  144 
F.  818,  75  C.  C.  A.  548.  affirmed.  Hiscock 
V.  Varick  Bank,  206  U.  S.  28,  51  L.  Ed.  945, 
27   S.   Ct.  681. 

Securities  held  by  stockbrokers  as  col- 
lateral to  their  customers'  accounts  maj% 
where  the  latter  are  not  indebted  to  the 
brokers,  be  recovered  b}^  such  customers 
from  the  trustees  in  bankruptcy  of  the 
brokers'  estates.  Judgment,  In  re  Jacob 
Berry  &  Co.  (1906)  149  F.  176,  79  C.  C. 
A.  124,  affirmed.  Thomas  v.  Taggart,  209 
U.  S.  385,  52  L.  Ed.  845,  28  S.  Ct.  519. 

Filing  a  claim  and  participating  in  the 
bankruptcy  proceedings  does  not  waive 
the  right  of  a  customer  of  stockbrokers  to 
recover  from  the  trustees  of  their  bank- 
rupt estate  certain  stock  held  as  collateral 
to  such  customer's  account,  but  on  which 
he  was  not  indebted,  where  he  expressly 
reserved,  in  his  proof  of  claim,  whatever 
rights  he  might  have  in  such  stock.  Judg- 
ment. In  re"  Jacob  Berry  &  Co.  (1906), 
349  F.  176.  79  C.  C.  A.  124.  affirmed. 
Thomas  v.  Taggart,  209  U.  S.  385,  52  L. 
Ed.  845,  28  S.  Ct.  519. 

Equitable  pledge. — Advances  made  by 
a  railway  company  to  enable  a  coal  com- 
panj^  under  contract  to  supply  the  railway' 
company  with  coal  to  meet  its  pay  rolls 
amount  to  a  pledge,  enforceable  as  a 
preferential  claim  against  the  assets  of 
the  bankrupt  estate  of  the  coal  company 
in  the  hands  of  its  trustees,  who  assumed 
and  continued  performance  of  the  con- 
tract, of  such  a  quantity  of  coal  when 
mined  as  the  moneys  so  advanced  would 
pay  for  according  to  the  original  con- 
tract.    Judgment    (1907),    Atchison,   T.    & 


S.  F.  Ry.  Co.  V.  Hurley,  153  F.  503,  82 
C.  C.  A.  453,  affirmed.  Hurley  v.  Atchi- 
son, etc.,  Co.,  213  U.  S.  126,  53  L.  Ed.  729, 
29  S.  Ct.  466. 

Property  delivered  to  bankrupt  under 
conditional  contract  of  sale. — A  trustee  in 
bankruptcy  has  no  higher  rights  than  the 
bankrupts  themselves  in  property  de- 
livered to  the  bankrupts  under  a  contract 
of  conditional  sale.  Judgment,  In  re  E. 
M.  Newton  &  Co.,  153  F.  841,  83  C.  C. 
A.  23;  Swofford  Bros.  Dry  Goods  Co.  v. 
Brvant,  Id.  (1907),  affirmed.  Bryant  v. 
Swofiford  Bros.  Dry  Goods  Co.,  214  U.  S. 
279,   53   L.   Ed.  997,   29   S.   Ct.   614, 

897-75.  Books  of  account. — In  re  Har- 
ris, 221  U.  S.  274,  55  L.  Ed.  732.  31  S.  Ct. 
557. 

Corporate  records  and  stock  books. — 
The  corporate  records  and  stock  books 
passed  on  an  adjudication  in  bankruptcy 
against  the  corporation  to  the  trustee,  by 
virtue  of  the  provisions  of  Bankr.  Act 
July  1,  1898,  c.  541,  §  1,  subd.  13,  §  70,  30 
Stat.  544,  565  (U.  S.  Comp.  St.  1901,  pp. 
3419,  3451),  vesting  in  such  trustee  the 
title  of  the  bankrupt  to  all  documents  re- 
lating to  his  property,  and  §  1,  subd.  13, 
providing  that  the  word  "documents" 
shall  include  any  book,  deed,  or  instru- 
ment in  writing.  Babbitt  v.  Dutcher,  216 
U.  S.  102,  54  L.  Ed.  402.  30  S.  Ct.  372. 

900-81.  Claims  against  United  States — 
Effect  of  assignment  of  such  claims. — As- 
signments as  collateral  security  for  a  loan 
of  unallowed  claims  against  the  United 
States  on  account  of  contracts  for  furnish- 
ing materials  to  the  various  departments 
of  the  government,  being  in  direct  op- 
position to  Rev.  St.  U.  S.,  §  3477  (U.  S. 
Comp.  St.  1901,  p.  2320),  making  abso- 
lutely null  and  void  voluntary  transfers 
of  claims  against  the  United  States  be- 
fore their  allowance,  can  confer  no  in- 
terest in  the  assignees,  as  against  the 
trustee  in  bankruptcy  of  the  assignors. 
National  Bank  v.  Downie,  218  U.  S.  345. 
54  L.  Ed.  1065,  31  S.  Ct.  89,  affirming 
judgment  (1908),  161  F.  8.59.  88  C.  C.  A 
G57. 

918-50.  Wages  of  workmen,  clerks  or 
servants. — The  bankruptcy  act  of  1898  was 
not  an  affirmation  of  the  act  of  1797  or 
of  Rev.  Stat.,  §§  3467.  3468,  3469,  and  the 
change  of  provisions  in  regard  to  priority 
indicates  a  change  of  purpose  in  that  re- 
spect. Under  a  beneficent  policy,  which 
favors    those    working     for     their     daily 


179 


919-936 


BANKRUPTCY. 


Vol.  II. 


f.    Priority  of  Debts  Due  United  States  and  States  under  Former  Statutes — 
(1)    Debts  Due  United  States. — See  note  53. 
XIX.  Provisions  of  Bankrupt  Act  as  to  Liens,  Transfers  and  Preferences. 

A.  Liens — 1.    What  Claims  Are  Not  LiExs  against  Bankrupt  Estate. 
— See  note  98. 

3.  Dissolution  of  Liens  Obtained  Through  Legal  Proceedings  within 
Four  Months  before  Filing  the  Petition. — See  note  6. 

4.  Liens  ^^■I^CH  Are  Not  Affected  by  Bankrupt  Act. — See  note  7. 

B.  Conveyances,  Assignments  or  Encumbrances  to  Delay  or  Defraud 
Creditors — L    Invalidity  of  Such  Acts. — See  notes  14,  18. 


bread  and  does  not  seriously  affect  the 
sovereign,  congress,  in  enacting  the  bank- 
ruptcy law  of  1898,  preferred  labor  claims 
and  gave  them  priority  over  all  other 
claims  except  taxes,  and  the  courts  must 
assume  a  change  of  purpose  in  the  change 
of  order.  Guarantee  Title,  etc.,  Co.  v. 
Title  Guaranty,  etc..  Co..  224  U.  S.  152, 
56  L.  Ed.  706,  32  S.  Ct.  457. 

The  priority  over  claims  for  labor 
against  a  bankrupt  estate  which  the 
United  States  possessed  under  U.  S.  Rev. 
Stat.,  §  3466,  U.  S.  Comp.  Stat.  1901,  p. 
2314,  (providing  that  in  case  of  insol- 
vency debts  due  to  the  United  States 
shall  be  first  satisfied,  and  the  "like  pri- 
ority" which,  under  §  3468,  was  given  to 
a  surety  which  had  paid  to  the  United 
States  the  money  due  on  the  bankrupt's 
bond,  no  longer  exist  since  the  enact- 
ment of  the  bankrupt  act  of  July  1,  1898 
(30  Stat,  at  L.  544,  chap.  541,  U.  S. 
Comp.  Stat.  1901,  p.  3418),  §  64,  which 
declares  that,  with  the  exception  of  "taxes 
legally  due  and  owing  by  the  bankrupt 
to  the  United  States,  state,  county,  dis- 
trict, or  municipality,"  claims  for  labor 
shall  be  preferred  over  "debts  owing  to 
any  person  who.  by  the  laws  of  the 
states  or  the  United  States,  is  entitled  to 
priority."  Guarantee  Titfe,  etc.,  Co.  v. 
Title  Guaranty,  etc.,  Co..  224  U.  S.  152, 
56  L.  Ed.  706.  32  S.  Ct.  457. 

919-53.  Debts  due  United  States.— See 
ante,  "Wages  of  Workmen,  Clerks  or 
Servants."   XVIT,   D.   2,   d. 

929-98.  Claims  not  liens  against  es- 
tate under  act  1898,  §  67a.— Holt  v.  Cru- 
cible Steel  Co..  224  U.  S.  262,  56  L.  Ed. 
756,  32   S.   Ct.  414. 

The  efifect  to  be  given  in  bankruptcy 
proceedings  to  an  unrecorded  chattel 
mortgage  as  against  subsequent  creditors 
of  the  bankrupt  mortgagor,  without  no- 
tice, must  be  determined  by  the  record- 
ing law  of  the  state,  in  view  of  the  dec- 
laration of  the  bankrupt  act  of  July  1, 
1898  (30  Stat,  at  L.  564,  chap.  541,  U.  S. 
Conip.  Stat.  1901,  p.  3449),  §  67a,  that 
claims  which,  for  want  of  record,  or  for 
other  reasons,  would  not  have  been  valid 
liens  as  against  the  claims  of  the  cred- 
itors of  the  bankrupt,  shall  not  be  liens 
against  his  estate.     Holt  v.   Crucible  Steel 


Co.,  224  U.  S.  262,  56  L.  Ed.  756,  32  S. 
Ct.    414. 

Subsequent  creditors  without  notice  of 
an  unrecorded  chattel  mortgage,  who 
have  not  secured  any  specific  lien  upon 
the  mortgaged  property  by  execution,  at- 
tachment, or  otherwise,  are  not  compre- 
hended by  the  term  "creditors,"  as  used 
in  Ky.  Stat.  1903,  §  496,  which  provides 
that  no  unrecorded  mortgage  shall  be 
valid  against  a  purchaser  for  a  valuable 
consideration,  without  notice  thereof,  or 
against  creditors.  Holt  v.  Crucible  Steel 
Co.,  224  U.  S.  262,  56  L.  Ed.  756,  32  S. 
Ct.    414. 

931-6.  Preservation  of  lien  for  benefit 
of  estate. — Miller  :■.  Xew  Orleans  Acid, 
etc.,  Co..  211  U.  S.  496.  53  L.  Ed.  300,  29  S. 
Ct.  176. 

The  liens  of  execution  creditors  on 
property  held  b}'  the  insolvent  judgment 
debtor  under  a  contract  of  conditional 
sale,  as  they  existed  when  a  petition  in 
involuntary  bankruptcy  was  filed,  could 
not  be  subsequently  destroyed  so  as  to 
prevent  a  court  of  bankruptcy  from  pre- 
serving them  for  the  benefit  of  the  estate 
by  the  act  of  the  conditional  vendor  in 
retaking  the  property.  Rock  Island  Plow 
Co  V.  Reardon,  222  U.  S.  354,  56  L.  Ed. 
231,  32  S.  Ct.  164,  afiirming  decree  (1909), 
Peardon  :■.  Rock  Island  Plow  Co.,  168  F. 
654,  94  C.  C.  A.  118. 

931-7.  Validity  of  liens  given  in  good 
faith.— Sexton  v.  Dreyfus,  219  U.  S.  339, 
55  L.  Ed.  244,  31  S.  Ct.  256. 

The  general  lien  of  a  landlord  for  rent, 
given  by  Ga.  Code,  §  2795.  to  "date  from 
the  time  of  the  levy  of  a  distress  warrant 
to  enforce  the  same,"  is  not  created  by 
judgment,  nor  obtained  through  legal  pro- 
ceedings, within  the  meaning  of  the  bank- 
rupt act  of  July  1,  1898  (30  Stat,  at  L. 
565,  chap.  541,  U.  S.  Comp.  Stat.  1901.  p. 
3450\  §  67f,  and  is  therefore  not  defeated 
by  the  provisions  of  that  section,  al- 
though the  levy  was  made  within  four 
months  of  the  filing  of  the  petition  in 
bankruptcy  against  the  tenant.  Hender- 
son r-.  "Maver,  225  U.  S.  631,  56  L.  E&. 
1233.  32   S.    Ct.   699. 

936-14.  Intent  to  hinder,  delay  or  de- 
fraud creditors. — The  necessar}'  effect 
upon  other  creditors  of  a  mortgage  by  an 


180 


\'ol.   II. 


BAXKRUPTCY. 


938-941 


C.     Preferences — 1.     Ixvaliditv    of    Preferences — b.    lllmt    Constitutes 
Preference  zcithin  Meaning  of  Bankrupt  Act. — See  notes  27,  29. 


insolvent  within  four  months  of  tlie  filing 
of  a  petition  in  bankruptcy  to  secure  a 
pre-existing  debt  does  not  dispense  with 
the  necessity  of  showing  an  actual  intent 
on  his  part  to  hinder,  delaj\  or  defraud 
creditors,  which  is  essential  under  Bankr. 
Act  July  1,  1898,  c.  541,  §  67e,  30  Stat. 
564  (U.  S.  Comp.  St.  1901,  p.  3449),  in 
order  to  avoid  such  mortgage,  where  the 
mortgagee  was  ignorant  of  the  insolvency 
of  the  mortgagor,  and  had  no  reason  to 
believe  that  a  preference  was  intended. 
Judgment  (1907).  In  re  Coder.  152  F. 
943.  82  C.  C.  A.  91.  15  L.  R.  A.  (X.  S.) 
372;  In  re  Arts,  Id.;  Arts  v.  Coder.  Id., 
affirmed.  Coder  v.  Arts,  213  U.  S.  223,  53 
L.  Ed.  772,  29. S.  Ct.  436. 

A  creditor  of  a  bankrupt  who  has  taken 
a  mortgage  to  secure  his  debt,  which  is 
not  voidable  under  the  bankrupt  act,  is 
entitled  to  interest  on  the  mortgage  debt, 
where  the  estate  is  ample  for  that  pur- 
pose. Judgment  (1907),  In  re  Coder,  152 
F.  943.  82  C.  C.  A.  91,  15  L.  R.  A.  (N.  S.) 
372;  In  re  Arts,  Id.;  Arts  v.  Coder,  Id., 
affirmed.  Coder  v.  Arts,  213  U.  S.  223.  53 
L.   Ed.  772.  29  S.  Ct.  436. 

938-18.  Transfers  void  under  state  laws. 
— A  chattel  mortgage  which,  under  the 
Wisconsin  laws  and  decisions,  is  void  as 
to  the  creditors  of  the  mortgagor  for 
want  of  change  of  possession,  is  invalid 
as  to  the  trustee  in  bankruptcy  of  such 
mortgagor,  since,  under  Bankr.  Act  July 
1.  1898,  c.  541,  §  70a,  30  Stat.  565  (U.  S. 
Comp.  St.  1901,  p.  3451),  the  trustee  in 
bankruptcy  takes  title  to  the  property  of 
the  bankrupt  which  could  have  been 
levied  upon  and  sold  under  judicial  proc- 
ess against  the  bankrupt  at  the  time  of 
the  adjudication  in  bankruptcy.  Decree 
(1908).  162  F.  675,  89  C.  C.  A.  467.  af- 
firmed. Knapp  V.  [Milwaukee  Trust  Co.. 
216  U.  S.  545,  54   L.   Ed.  610,  30   S.   Ct.  412. 

941-27.  Amendment  of  §§  60a,  60b.— 
Richardson  v.  Shaw,  209  U.  S.  365,  52  L. 
Ed.  835,  28  S.  Ct.  512;  In  re  Wood,  210 
U.  S.  246,  52  L.  Ed.  1046,  28  S.  Ct.  621; 
National  Bank  v.  National,  etc.,  Countv 
Bank,  225  U.  S.  178,  56  L.  Ed.  1042,  32  S. 
Ct.  633. 

To  constitute  a  preference  voidable  un- 
der the  bankrupt  act  of  July  1,  1898  (30 
Stat,  at  L.  562.  chap.  541,  U.  S.  Comp. 
Stat.  1901,  p.  3445),  §  60.  as  amended  by 
the  act  of  February  5,  1903  (32  Stat,  at 
L.  799,  chap.  487.  U.  S.  Comp.  Stat.  Supp. 
1909.  p.  1314).  it  is  not  necessary  that  the 
transfer  of  the  insolvent's  property  be 
made  directly  to  the  creditor.  It  ma}"-  be 
made  to  another,  for  his  benefit.  Na- 
tional Bank  t'.  National,  etc..  County  Bank, 
225  U.  S.  178.  56  L.  Ed.  1042,  32  S.  Ct.  633. 

A    creditor    of    a    bankrupt    can    n'^t    be 


charged  with  receiving  a  voidable  prefer- 
ence by  transfer,  within  the  meaning  of 
the  bankrupt  act  of  July  1,  1898,  §  60,  as 
amended  by  the  act  of  February  5,  1903, 
unless  he  takes  by  virtue  of  a  disposition 
by  the  insolvent  debtor  of  his  property 
for  the  creditor's  benefit,  so  that  the  es- 
tate of  the  debtor  is  thereby  diminished. 
National  Bank  v.  National,  etc..  County 
Bank.  225  U.  S.  178,  56  L.  Ed.  1042,  32  S. 
Ct.  633. 

A  bank  discounting  a  note  on  the  in- 
dorsement of  the  payee,  who  took  the 
avails  for  his  own  use,  and  demanding 
and  receiving  as  collateral  upon  renewal 
specific  property  of  the  payee,  having  al- 
ready been  given  a  general  pledge  of  the 
payee's  property  to  secure  this  and  other 
indebtedness,  is  not  chargeable  with  re- 
ceiving a  preference  voidable  under  the 
bankrupt  act  of  July  1.  1898,  §  60,  where 
the  payee,  within  four  months  of  the 
maker's  adjudication  in  bankruptcy,  paid 
the  note  before  maturity  with  his  own 
funds  and  received  back  the  collateral, 
charging  the  amount  so  paid  to  the 
maker,  to  which  he  was  indebted  in  a 
larger  sum  on  open  account,  and  receiv- 
ing a  corresponding  credit  on  the  maker's 
books.  National  Bank  v.  National,  etc.. 
County  Bank,  225  U.  S.  178.  56  L.  Ed. 
1042,  32   S.  Ct.  633. 

941-29.  The  return  of  excessive  margins 
by  an  insolvent  stockbroker  to  a  customer 
does  not  constitute  a  preference,  for'oid- 
den  by  Bankr.  Act  Julv  1.  1898.  c.  541, 
§  60a,  30  Stat.  562  (U.  S.  Comp.  St.  1901, 
p.  3445).  as  amended  ])y  Act  Feb.  5,  1903, 
c.  487,  §  13,  32  Stat.  799  (U.  S.  Comp.  St. 
Supp.  1907,  p.  1031).  \vhere  the  customer 
had  demanded  settlement,  and,  on  the 
following  day,  the  sum  paid  over  was 
taken  into  account  in  the  settlement  be- 
fore turning  over  to  the  customer  stock 
belonging  to  him,  according  to  the  un- 
derstanding of  the  parties.  Judgment 
(1906),  147  F.  650,  77  C.  C.  A.  643,  af- 
firmed. Richardson  v.  Shaw.  209  \J.  S. 
365,   52  L.   Ed.  835,  28   S.   Ct.   512. 

Return  of  margined  stocks  by  stock- 
broker.— No  preferential  transfer.  forl)id- 
den  by  Bankr.  Act  July  1.  1898,  c.  541, 
§  60a.  30  Stat.  562  (U.  S.  Comp.  St.  1901, 
p.  3445),  as  amended  by  Act  Feb.  5,  1903, 
c.  487,  §  13,  32  Stat.  799  (U.  S.  Comp. 
St.  Supp.  1907,  p.  1031),  results  from  the 
action  of  a  stockbroker  who  has  pledged 
certain  stocks  with  the  consent  of  the 
customer  for  whom  he  was  carrying  them 
on  margin  in  redeeming  the  stocks  and 
turning  them  over  to  such  customer  on 
demand  when  insolvent,  even  if  the  theory 
be  adopted  that  the  broker  is  the  owner, 
carrying  the   siiares   upon    a     conditional 


181 


948-952 


BAXKRUPTCY. 


Vol.  II. 


d.    Effect  of  Statutory  Provisions  upon  Insolvents'  Right  to  Deal  with  His 
Property  in  Good  Faith. — See  note  44. 

D.    Validity  of  Payment  or  Transfer  to  Attorneys,   etc.,  for  Future 
Services. — See  note  53. 
XX.    Application  of  Bankrupt  Acts  to  Partners  and  Partnership  Estates. 

C.  Appointment,  Powers  and   Duties   of    Trustees — 2.   Possession  and 
Recovery  of  Assets. — See  note  57. 

D.  Administration    and    Distribution    of    Assets — 3.     Application    of 
Proceeds  of  Partnership  and  Individual  Estates. — See  notes  62,  63. 


contract  of  sale.  Judgment  (1906),  1-17 
F.  C59,  77  C.  C.  A.  G43,  affirmed.  Richard- 
son V.  Shaw,  209  U.  S.  365,  52  L.  Ed.  835, 
28  S.  Ct.  512;  Sexton  v.  Kessler  &  Co.,  225 
U.  S.  90.  56  L.   Ed.  995,  32   S.   Ct.  657. 

948-44.  Effect  of  statutory  provision 
upon  insolvent's  right  to  deal  with  his 
property  in  good  faith. — A  creditor  who, 
within  four  months  of  the  bankruptcy  of 
his  debtor,  takes  possession  of  securities 
negotiable  by  delivery  or  indorsed  in 
blank,  contained  in  a  separate  package 
in  the  debtor's  safe  deposit  vaults,  marked 
"escrow"  for  the  creditor's  account,  does 
not  obtain  a  preference  voidable  under 
the  bankruptcy  law,  where  these  securi- 
ties, or  others  for  which  they  had  from 
time  to  time  been  substituted,  were  so 
set  apart  years  before,  at  the  creditor's 
request,  to  secure  the  debtor's  drawing 
credit,  since  an  equitable  lien  was  thus 
created,  and  in  taking  the  securities  the 
creditor  only  exercised  an  equitable  right 
to  possession  that  had  been  created  in 
good  faith  long  before  the  bankruptcy. 
Sexton  V.  Kessler  &  Co.,  225  U.  S.  90,  56 
L.  Ed.  995,  32  S.  Ct.  657. 

950-53.  Validity  of  payments  or  trans- 
fers to  attorneys,  etc. — A  trustee  in  bank- 
ruptcy can  not  maintain  a  plenary  suit 
in  a  court  of  bankruptcy  to  recover  in  an- 
other jurisdiction  excessive  payments  or 
transfers  to  counsel  made  by  a  bankrupt, 
in  contemplation  of  bankruptcy  proceed- 
ings, for  services  to  be  rendered,  where 
that  court  has  made  no  order  in  the  pro- 
ceeding authorized  by  Bankr.  Act  July 
1,  1898,  c.  541,  §  60d,  30  Stat.  562  (U.  S. 
Comp.  St.  1901.  p.  3446),  to  re-examine 
and  reduce  such  payments  or  transfers. 
In  re  Wood.  210  U.  S.  246,  52  L.  Ed.  1046, 
28  S.  Ct.  621. 

Jurisdiction  of  a  court  of  bankruptcy 
under  Bankr.  Act  July  1,  1898.  c.  541, 
§  60d,  30  Stat.  562  (U.  S.  Comp.  St.  1901, 
p.  3446),  to  re-examine  and  reduce,  on 
petition  of  the  trustee,  paj^ments  and 
transfers  made  by  a  bankrupt  to  counsel, 
in  contemplation  of  bankruptcy,  for  serv- 
ices to  be  rendered,  extends  to  a  case 
where  such  counsel  are  nonresidents  of 
the  state  and  district,  and  where  the  trans- 
actions occurred  and  the  notice  of  the 
proceeding  was  served  outside  the  district. 
In  re  Wood.  210  U.  S.  246,  52  L.  Ed.  1046, 
28   S.  Ct.   621. 

Such    notice,    by    mail    or    otherwise,    as 


the  court  shall  direct,  of  the  proceeding 
taken  under  Bankr.  Act  July  1,  1898,  c. 
541,  §  60d,  30  Stat.  562  (U.  S.  Comp.  St. 
1901,  p.  3446),  to  re-examine  and  reduce 
pajaiients  or  transfers  to  counsel  made  by 
a  bankrupt,  in  contemplation  of  bank- 
ruptcy proceedings,  for  services  to  be 
rendered,  is  sufficient,  provided  that  an 
opportunity  is  given  to  appear  and  con- 
test the  reasonableness  of  the  charges. 
In  re  Wood,  210  U.  S.  246.  52  L.  Ed.  1046, 
28  S.  Ct.  621. 

950-57.  Prosecution  of  pending  suits  to 
avoid  preferences. — A  pending  action 
brought  by  creditors  of  an  insolvent  part- 
nership to  avoid,  as  an  unlawful  prefer- 
ence, a  sale  by  an  individual  partner  of 
his  individual  property,  may  be  prosecuted 
to  final  judgment  by  the  trustee  in  bank- 
ruptcj\  though  the  cause  of  action  arose 
from  the  state  law,  and  the  application  of 
that  law  is  essential  to  secure  the  relief 
sought,  provided  only  that  such  trustee  is 
properl}-  authorized,  conformably  to  the 
Bankr.  Act  July  1,  1898,  c.  541,  §  67,  subd. 
"f,"  30  Stat.  565  (U.  S.  Comp.  St.  1901,  p. 
3450),  empowering  a  court  of  bank- 
ruptcy to  direct  the  trustee  to  preserve 
liens  for  the  benefit  of  the  bankrupt  es- 
tate. Judgment  (1906),  New  Orleans  Acid 
&  Fertilizer  Co.  v.  O.  Guillory  &  Co.,  43 
So.  329,  117  La.  821.  affirmed.  Miller  v. 
New  Orleans  Acid,  etc.,  Co.,  211  U.  S. 
496,  53  L.  Ed.  300,  29  S.  Ct.  176. 

Establishing  the  existence  of  other  in- 
dividual creditors  is  not  essential  to  the 
prosecution  by  the  trustee  of  a  bankrupt 
partnership  of  a  pending  suit  to  avoid  a 
sale  by  an  individual  partner  of  his  in- 
dividual property,  where,  under  such  law, 
partnership  and  individual  creditors  have 
a  coequal  right  to  payment  out  of  his  in- 
dividual estate,  although,  if  the  preferred 
creditor  proves  to  be  the  only  individual 
creditor,  he  will  be  entitled,  by  way  of 
distribution  under  Bankr.  Act  July  1, 
1898,  c.  541,  §  5,  subd.  "f,"  30  Stat.  547 
(U.  S.  Comp.  St.  1901,  p.  3424),  to  have  the 
full  amount  paid  in  by  him  returned. 
Miller  r.  New  Orleans  Acid,  etc.,  Co.,  211 
U.   S.  496,  53   L.  Ed.  300,  29  S.   Ct.   176. 

951-62.  Payment  of  partnership  debts 
from  partnership  property. — Miller  v. 
New  Orleans  Acid,  etc.,  Co.,  211  U.  S.  496, 
53   L.   Ed.  300,  29   S.   Ct.   176. 

952-63.  Payment  of  individual  debts 
from    individual    estates. — Miller    v.    New 


182 


Vol.  II. 


BANKRUPTCY. 


955-960 


XXI.    Nature,  Operation,  and  Effect  of  Bankruptcy  Proceedings. 

B.  Operation  and  Effect — 2.    Effect  upon  Right  to  Institute  Suits. 

By  Debtor. — The  bankrupt  is  not  divested  of  his  property  by  fihng  a  petition 
in  bankruptcy,  but  is  still  the  owner,  holding  in  trust,  pending  the  appointment 
and  qualification  of  the  trustee,  and  until  such  election  of  the  trustee,  the  bank- 
rupt may  institute  and  maintain  a  suit  on  any  cause  of  action  possessed  by 
him.81^ 

3.  Effect  on  Pending  Suits— a.  Bjfect  of  Proceedings  as  Stay  of  Suits  in 
Other  Courts — (1)  Provisions  of  Former  and  Present  Bankrupt  Acts. — See 
note  84. 

C.  Conclusiveness  and  Effect  of  Adjudication. — See  note  1. 


Orleans  Acid,  etc.,  Co.,  211  U.  S.  496,  53  L. 
Ed.  300,  29  S.  Ct.  176. 

955-81a.  Right  of  bankrupt  to  sue  pend- 
ing election  of  trustee. — Johnson  v.  Col- 
lier, 222  U.  S.  538,  56  L.  Ed.  306,  32  S.  Ct. 
.04. 

A  voluntary  bankrupt  has  sufficient  title, 
prior  to  the  election  of  the  trustee,  to  the 
personal  property  included  in  his  schedule 
of  assets,  to  enable  him  to  bring,  and,  in 
case  the  trustee  neither  sues  nor  inter- 
venes, to  prosecute  to  judgment,  a  suit 
for  damages  occasioned  by  the  alleged 
unlawful  judicial  sale  of  a  portion  of  such 
property  after  he  had  filed  a  claim  of  ex- 
emption. Johnson  v.  Collier,  222  U.  S. 
538,  56  L.  Ed.  306,  32  S.  Ct.  104,  affirming 
judgment  in  49  So.  761,  161  Ala.  204. 

956-84.  Stay  of  attachment  proceed- 
ings.— The  pendency  of  bankruptcy  pro- 
ceedings in  a  federal  court  when  an 
attachment  suit  of  a  single  creditor  was 
begun  in  a  state  court  precludes  that 
court,  when  that  fact  is  made  to  appear, 
from  proceeding  in  such  suit  to  judgment 
and  appropriation  of  the  property.  Acme 
Harvester  Co.  v.  Beekman  Luiuber  Co., 
222  U.  S.  300,  56  L.  Ed.  208,  32  S.  Ct.  96, 
affirming  judgment  in  Beekman  Lumber 
Co.  v.  Acme  Harvester  Co.,  114  S.  W. 
1087,  215   Mo.  221. 

With  the  question  of  adjudication  de- 
termined against  the  right  to  proceed  in 
bankruptcy,  the  jurisdiction  of  the  dis- 
trict court  ends,  and  the  property  be- 
comes subject  to  the  ordinary  methods 
of  procedure  in  courts  of  competent  ju- 
risdiction. Acme  Harvester  Co.  v.  Beek- 
man Lumber  Co..  222  U.  S.  300,  56  L.  Ed. 
208,  32  S.  Ct.  96. 

A   state  court  is  justified  in  proceeding 


to  judgment  on  the  attachment  suit  of  a 
single  creditor,  notwithstanding  the  sug- 
gestion of  the  pendency  of  bankruptcy 
proceedings,  where  the  bankruptcy  court, 
finding  an  outstanding  creditors'  com- 
mittee under  which  it  was  proposed  to 
administer  and  distribute  the  debtor's  es- 
tate, declined  to  appoint  a  receiver,  rec- 
ognizing the  propriety  of  the  .  proceed- 
ings of  the  creditors'  committee,  and  re- 
ceived the  reports  of  such  committee,  and 
allowed  it  for  years  to  operate  the  prop- 
erty and  to  mature  a  plan  for  the  settle- 
ment of  the  debts  outside  of  the  court, 
and  not  contemplated  in  the  bankruptcy 
act,  the  creditors  in  large  numbers  hav- 
ing signified  a  purpose  to  take  stock  in  a 
reorganization,  and  for  more  than  five 
years  after  the  filing  of  the  petition  in 
bankruptcy,  having  made  no  attempt  to 
adjudicate  the  debtor  a  bankrupt,  or  pro- 
ceed to  the  settlement  of  the  estate  un- 
der the  requirements  of  the  act,  since,  un- 
der the  circumstances,  the  state  court  was 
justified  in  determining  that  the  bank- 
ruptcy court  had  lost  its  jurisdiction. 
Acme  Harvester  Co.  v.  Beekman  Lum- 
ber Co.,  222  U.  S.  300,  56  L.  Ed.  208,  32 
S.  Ct.  96. 

960-1.  Conclusiveness  of  adjudication 
putting  company  into  bankruptcy. — An 
adjudication  against  two  brothers  as  part- 
ners is  not  conclusive  as  to  the  existence 
of  the  partnership  and  the  title  to  the  as- 
.-ets  as  against  the  trustees  in  bankruptcy 
of  one  of  the  brothers,  who  were  not 
heard,  although  they  had  filed  a  denial 
and  answer.  Decree  (1907),  153  F.  525, 
82  C.  C.  A.  475.  aflirmed.  Manson  v.  Wil- 
liams. 213  U.  S.  453,  53  L.  Ed.  869,  29  S. 
Ct.   519. 


183 


BANKS  AXD  BAXKIXG.  Vol.  III. 


BANKS  AND  BANKING. 

I.  Definitions,    185. 

A.  Bank  or  Banker,  185. 

II.  Incorporation,   Organization  and  Control,    185. 

B.  Control  and  Regulation,   185. 

1.  In  General,  185. 

III.  Exercise  of  Banking  Functions,  189. 

A.  Right  and  Alode  of  Exercise,  189. 

5.  Ultra  Vires  Acts,  189. 

6.  Incidental  Powers,  189. 

7.  Acting  as  Trustee,  189. 

B.  Dealings,  Duties  and  Liabilities,  189. 

2.  With  Respect  to  Deposits,  189. 

c.  Special  Deposits  and  Depositaries,  189. 
f.  Unclaimed  Deposits,  191. 

3.  With  Respect  to  Collections,  192. 

a.  Authority,  192. 

b.  Title  to  Paper  Deposited  and  Lien  Thereon,  193. 

4.  With  Respect  to  Loans  and  Discounts,  193. 

d.  Illegality  of  Loans  as  Affecting  \"alidity,  193. 

f.  Rate  of  Interest  or  Discount,  193. 

g.  Rights  and  Liabilities,  194. 

(2)  As  to  Collateral,  194. 

(5)  Lien  on  Deposits,  194. 

(6)  As  to  Paper  Refused  Discount.  194. 

5.  With  Respect  to  Ownership  of  Property,  194. 

7.  \\'ith  Respect  to  Contracts  in  General,  195. 

c.  National   Banks,    195. 

(2)   Contracts  of  Guaranty,  195. 

8.  Restitution    of    or    Compensation    for    Property    Obtained    Ultra 

Vires,  195. 

IV.  Officers  and  Agents,  195. 

B.  Powers,  Duties  and  Liabilities,  195. 

1.  Powers    and  Duties,   195. 

f.  Borrow  INIoney  for  Bank's  Use,  195. 

2.  Liabilities,  195. 

a.  Civil  Liability,   195. 

(1)  Of  Directors,  195. 

(a)  In  General,  195. 

(b)  To  Bank  and  Stockholders,  196. 

(2)  Of  Cashier  or  Other  Officer,  and  His  Sureties.  196. 

(a)  Scope  of  Bond  and  Liability  Thereon,   196. 

^  (c)    Supervision  and  Notice  of  Default  or  Loss.  196. 

(3)  Enforcement,  196. 

b.  Criminal  Liability,   196. 

(3)   Embezzlement,    Misappropriation   or   Misapplication   of 
Funds,  197. 

(b)  Misappropriation  or  Misapplication  of  Funds,  197. 

184 


Vol.  III.  BAXKS  AXD  BAXKIXG.  7-16 

aa.  Elements  of  Offense  and  Indictment  Therefor, 

197. 
bb.  Application  of  Rules  to  Specific  Acts.  198 

(4)  Making  False  Entries,   198. 
(c)    In  Reports,    198. 

V.  Stock  and  Stockholders,  199. 

E.  Rights   and   Liabilities   of   Stockholders,    199. 

2.  Liabilities,  199. 

b.  Extraordinary  Statutory  Liability.   199. 

(5)  As  Affected  by  Transfer  of  Stock,  199. 
(a)   In  General,  199. 

(c)   Transferee's  Liability,   199. 
(5a)   Nonassenting    Stockholder    to    Extension    of    Bank's 
Corporate  Existence,   199. 

3.  Rights  of  Action.  199. 

a.  Power  to  Enjoin  L'nwise  and  Ultra  \'ires  Act,  199. 

b.  Recovery  of  Damages  Resulting  from  L'nwise  or  L'ltra  \'ires. 

Acts,  199. 

VL  Taxation,  200. 
VII.  Insolvency,  Assignment  and  Receivership,  200. 

F.  Receivers.  200. 

3.  Title  to  Assets  and  Recovery  Thereof.  200. 
I.  Set-Off.   200. 

CROSS   REFERENCES. 

See  the  title  Banks  and  Banking,  vol.  3,  p.  1.  and  references  there  given. 

In  addition,  see  post,  Bills,  Xotes  and  Checks  ;    Payment. 

As  to  recovery  back  of  money  paid  to  bank  on  forged  indorsement  of  pension 
check,  see  the  titles  Payment;  Pensions.  And  see.  also,  the  title  Bills, 
Notes  and  Checks,  vol.  3,  p.  257. 

I.  Definitions. 

A.  Bank  or  Banker. — Banking. — The  business  of  receiving  deposits  of 
money  in  small  sums  from  time  to  time  until  they  reach  an  amount  sufficient 
to  be  sent  to  other  states  or  foreign  countries  is  banking,  and  as  such  is  a  proper 
subject  for  regulation  in  the  exercise  of  the  police  power  of  the  state.^'^ 

II.  Incorporation,   Organization  and  Control. 

B.  Control  and  Regulation — 1.  In  General. — The  police  power  of  a 
state  extends  to  the  regulation  of  the  banking  business,  and  even  to  its  pro- 
hibition, except  on  such  conditions  as  the  state  may  prescribe.^^* 

Power  to  Make  Right  a  Franchise. — The  right  to  engage  in  banking  can  be 
made  a  franchise  by  the  state,  and  prohibited,  except  upon  such  conditions  as  it 
may  prescribe.-'^-'''' 

Right  to  Require  Incorporation. — The  state  may  provide  that  no  banking 
business  shall  be  done  except  by  corporations  and  that  corporations  shall  not  be 

7-6a.  Banking.— Engel  z:   O'Malley,  219  Ed.  117,  31   S.  Ct.  189.  reversing  decree  in 

U.  S.  128    .55  L    Ed.  128.  31  S.  Ct.  191,  af-  First  State   Bank  of  Holstein  z:   Shallen- 

firrning   182    F.    36.5    (C.   C.   1910).  berger  fC.  C.  1909).  172  F.  999. 

16-35a.    Control  of   state  banks. — Noble  16-35b.     Power   to    make    right    a    fran- 

State   Bank   z:    Haskell.   219   U.   8.   104,   55  chise.— Xoblc    State    Rank  v.    Haskell.   219 

L.  Ed.  112,  31   S.  Ct.  186,  affirming  decree  U.    S.   104,    55    L.    Ed.    112.   31    S.   Ct.   186; 

(1908).  97  P.  590.  22  Okl.  48;  Shallenberger  Engel   z:    O'Malley.    219    U.S.    128,55    L. 

z:   First   State   Bank.   219  U.   S.   114,   55   L.  Ed.  128,  31  S.  Ct.  191. 

185 


16 


BANKS  AND  BANKING. 


Vol.  III. 


formed  or  continue  with  less  than 'a  surplus  of  a  specified  per  cent,  both  provi- 
sions being  for  the  purpose  of  assuring  safety. ^•■^'^ 

Requiring  License  of  Private  Bankers. — A  state  under  its  police  power 
may  make  the  pursuit  of  private  banking  dependent  upon  obtaining  a  license.-"^^*^ 

Not  a  Regulation  of  Interstate  Commerce. — Interstate  commerce  is  not 
miconstitutionally  regulated  by  the  requirement  of  N.  Y.  Laws  1910,  chap.  348, 
that  a  license  from  the  comptroller  be  obtained  by  individuals  or  partnerships 
desiring  to  engage  in  the  business  of  private  banking,  as  applied  to  one  whose 
business  chiefly  consists  in  receiving  deposits  in  very  small  sums  from  time  to 
time  until  they  reach  an  amount  sufficient  to  be  sent  to  other  states  and  foreign 
countries.^^^ 

Equal  Protection  of  the  Laws. — No  unconstitutional  discrimination  is 
made  by  exempting  those  private  bankers  in  whose  business  the  average  amount 
of  each  sum  received  is  not  less  than  $500,  and  those  who  give  a  bond  in  a 
specified  amount,  from  the  requirement  of  N.  Y.  Laws  1910,  chap.  348,  that  a 


16-35C.    Right  to  require  incorporation. 

— Assara  State  Bank  v.  Dolley,  219  U. 
S.  121,  55  L.  Ed.  123,  31  S.  Ct.  189. 

16-35d.  Requiring  license  of  private 
banker.— Engel  z:  O'Malley,  219  U.  S.  128, 
55  L.  Ed.  128,  31  S.  Ct.  191.  See  post, 
LICENSES. 

The  police  power  of  the  state  justifies 
the  requirement  of  Laws,  N.  Y.,  1910,  c. 
348,  that  a  license  from  the  comptroller 
be  obtained  by  individuals  or  partnerships 
desiring  to  engage  in  the  business  of  re- 
ceiving deposits  of  money  for  safe-keep- 
ing, or  for  the  purpose  of  transmission  to 
another,  or  for  any  other  purpose.  Engel 
■V.  O'Malley,  219  U.  S.  128,  55  L.  Ed.  128, 
.31    S.    Ct.    191,   affirming   182    Fed.   365. 

"The  receipt  of  money  by  a  bank,  al- 
though it  only  creates  a  debt,  is  in  a  popu- 
lar sense,  the  receipt  of  money  for  safe- 
keeping, since  the  depositor  can  draw  it 
out  again  at  such  time  and  in  such  sums 
as  he  chooses.  It  is  safe  to  assume  that 
the  transmission  of  money  contemplated 
very  generally  is  accomplished  by  a  draft, 
and  practically  never  by  sending  on  the 
identical  currency  received.  One  form,  at 
least,  of  the  business  aimed  at,  and.  on 
the  face  of  the  bill,  that  carried  on  by  the 
plaintiflf.  is  a  branch  of  the  banking  busi- 
ness. Furthermore,  it  is  a  business 
largely  done  with  poor  and  ignorant 
immigrants,  especially  on  their  first  ar- 
rival here."  Engel  v.'  O'Malley,  219  U.  S. 
128,  55   L.  Ed.  128,  31   S.   Ct.  191. 

"Experience  has  shown  that  the  protec- 
tion of  such  depositors  against  fraud, 
which  is  the  purpose  running  through  the 
statute,  is  especially  needed  by  at  least 
that  class  of  them  with  whom  the  persons 
hit  by  the  statute  largely  deal.  The  case 
cited  establishes  that  the  state  may  regu- 
late that  business,  and  may  take  strong 
measures  to  render  it  secure.  It  also  es- 
tablishes that  the  plaintiff  has  no  such 
constitutional  right  to  carry  it  on  at  will 
as  to  raise  him  above  state  laws  not  mani- 
festly   unfit    to    accomplish    the    supposed 


end,  greatly  in  excess  of  the  need,  or  ar- 
bitrarj^  and  capricious  in  discrimination. 
The  quasi  paternal  relations  shewn  in 
argument  and  by  documents  to  exist  be- 
tween those  following  the  plaintifT's  call- 
ing and  newly-arrived  immigrants  justifies 
a  supervision  more  paternal  than  is  needed 
in  ordinary  afTairs.  Whether  the  court 
thinks  them  wise  or  not,  such  laws  are 
within  the  scope  of  the  discretion  which 
belongs  to  legislatures,  and  which  is  usual 
for  them  to  exert."  Engel  v.  O'Mallev. 
219  U.  S.  128,  55  L.  Ed.  128,  31  S.  Ct.  191. 

16-35e.  Not  a  regulation  of  commerce. 
—Engel  V.  O'Malley,  219  U.  S.  128,  55  L. 
Ed.  128,  31  S.   Ct.   191. 

"The  money  received,  even  when  re- 
ceived for  transmission,  becomes  the 
money  of  the  depositary,  and  his  obliga- 
tion that  of  a  debtor  under  contract  to 
pay  as  may  be  directed.  Presumably  the 
depositor  retains  the  right  to  call  for  his 
money  himself,  or  to  change  any  direction 
that  may  have  been  given,  until  the 
money  has  left  the  'private  banker's' 
hands.  The  law,  as  was  said  of  a  similar 
one  by  the  New  York  court  of  appeals, 
was  passed  for  the  purpose  of  regulating 
and  safeguarding  the  business  of  receiv- 
ing deposits  which  precedes  and  is  not 
to  be  confounded  with  the  later  transmis- 
sion of  money,  although  leading  to  it. 
Musco  v.  Uni'ted  Suretv  Co.,  196  N.  Y. 
459.  466,  467,  134  Am.  St.  Rep.  851,  90  N. 
E.  171.  The  fact  that  it  is  very  likely  to 
lead  to  it  does  not  change  the  result. 
Diamond  Glue  Co.  ?'.  United  States  Glue 
Co.,  187  U.  S.  611,  616,  47  L.  Ed.  328,  23 
S.  Ct.  206.  The  case  is  similar  in  prin- 
ciple to  Ware  v.  Mobile  County.  209  U. 
S.  405,  52  L.  Ed.  855.  28  S.  Ct.  526,  where 
the  nearest  cases  on  the  other  side  are 
distinguished.  See  further  Williams  z\ 
Fears,  179  U.  S.  270,  45  L.  Ed.  186,  21  S. 
Ct.  128.  We  are  of  opinion  that  the  com- 
merce clause  of  the  constitution  is  not  in- 
fringed." Engel  7'.  O'Malley.  219  U.  S. 
128,  55  L.  Ed.  128,  31  S.  Ct.  191. 


186 


Vol.  III. 


BANKS  AND  BANKING. 


16 


license  from  the  comptroller  be  obtained  by  individuals  or  partnerships  desiring 
to  engage  in  the  business  of  receiving  deposits  of  money  for  safe-keeping,  or 
for  the  purpose  of  transmission  to  another,  or  for  any  other  purpose.^^^ 

Possibility  of  Arbitrary  Refusal  of  License.— The  possibility  that  the 
comptroller  may  refuse  a  license  to  a  private  banker  upon  his  arbitrary  whim 
does  not  invalidate,  under  U.  S.  Const.,  14th  Amend.,  the  requirement  of  N.  Y. 
Laws  1910.  chap.  348,  that  a  license  from  that  official  be  obtained  by  individuals 
or  partnerships  desiring  to  engage  in  that  business. ^^s 

Persons  Who  May  Question  Constitutionality. — One  who  can  satisfy  the 
requirement  of  N.  Y.  Laws  1910,  chap.  348,  for  licensing  private  bankers,  that 
the  applicant  for  license  must  have  been  continuously  for  five  years  immediately 
preceding  his  application  a  resident  of  the  United  States,  can  not  complain  that 
such  provision  is  unconstitutional. ^-'^'^ 

Inspection. — Inspections  may  be  required  of  banks  by  a  state  and  the  cost 
thrown  on  the  bank.-^-J' 

Fixing  Minimum  Capital.— A  state  may  fix  a  minimum  of  capital  required 
of  those  who  would  engage  in  banking.^^^ 

Restricting  Investments. — A  state  has  power  to  restrict  investments  by 
banks  to  securities  regarded  as  relatively  safe.-^°^ 

Creation  of  Bank  Depositor's  Guarantee  Fund. — A  state  statute  creating 
a  bank  depositor's  guarantee  fund,  by  the  levy  and  collection  of  an  assessment 
based  upon  average  daily  deposits  for  the  purpose  of  securing  the  full  repay- 
ment of  deposits  in  case  it  or  any  other  bank  existing  under  the  state  laws 
becomes  insolvent,  is  a  valid  exercise  of  the  police  power  of  the  state,^^'  one 


16-35f.    Equal  protection  of  the  laws 

Engel  r.  OAIalley.  219  U.  S.  128.  55  L.  Ed. 
128.  31   S.  Ct.   191. 

16-35g.  Possibility  of  arbitrary  dis- 
crimination.— Engel  t'.  O'Malley,  219  U. 
S.   128.  55   L.   Ed.   128,  31   S.   Ct.  191. 

"It  is  said  that  even  if  the  plaintiff  could 
furnish  the  money  and  bond  required,  the 
comptroller  might  refuse  a  license  upon 
his  arbitrary  whim.  No  guides  are  given 
in  §  25  for  the  discretion  that  he  is  to  ex- 
ercise, and  a  provision  in  §  29e  that  noth- 
ing in  the  article  shall  be  construed  to  re- 
quire the  -comptroller  to  make  any  in- 
quiry as  to  the  solvency  of  any  applicant 
is  thought  to  exclude  solvency  as  the  test, 
and  to  leave  the  matter  at  sea.  We  do 
not  so  understand  the  purpose  and  pur- 
port of  the  §  29e,  and  should  suppose  that 
the  discretion  to  be  exercised  in  the  re- 
fusal to  grant  the  license  under  §  25  was 
similar  to  that  exercised  under  §  26  in 
revoking  one;  and  that  in  each  case  the 
comptroller  was  expected  to  act  for  cause. 
But  the  nature  and  extent  of  the  remedy, 
if  any.  for  a  breach  of  duty  on  his  part, 
we  think  it  unnecessary  to  consider;  for 
the  power  of  the  state  to  make  the  pursuit 
of  a  calling  dependent  upon  obtaining  a 
license  is  well  established,  where  safety 
seems  to  require  it,  and  what  we  have  said 
before  sufficiently  indicates  that  this  call- 
ing is  one  to  which  the  requirement  myj'- 
be  attached.  See  Gundling  z:  Chicago,  177 
U.  S.  183,  44  L.  Ed.  725.  20  S.  Ct.  QSa; 
Lieberman  v.  Van  de  Carr.  199  U.  S.  552. 
50    L.    Ed.    305,   26    S.    Ct.    144."      Engel   z: 


O'AIalley,  219  U.  S.  128,  55  L.  Ed.  128, 
31   S.   Ct.   191. 

16-35h.  Persons  who  may  question  con- 
stitutionality.—Engel  z:  0':\[allev.  219  U. 
S.    12S,    55    L.    Ed.    128,    31    S.    Ct. 'l91. 

16-35i.  Inspection. — \oble  State  Bank 
f.  Haskell,  219  U.  S.  104,  55  L.  Ed.  112, 
31    S.   Ct.   186, 

16-35J.  Minimum  capital. — Noble  State 
Bank  v.  Haskell,  219  U.  S.  104.  55  L.  Ed. 
112,  31  S.  Ct.  186.  See  Assara  State  Bank 
z:  Dollev.  219  U.  S.  121.  55  L.  Ed.  123,  31 
S.   Ct.  189. 

16-35k.  Restricting  investments. — Noble 
State  Bank  z:  Haskell.  219  U.  S.  104,  55 
L.    Ed.    112,    31    S.    Ct.    186. 

16-351.  Creation  of  depositor's  guar- 
antee fund. — Xoble  State  Bank  z'.  Haskell, 
219  U.   S.  104,  55  L.  Ed.  112,  31  S.   Ct.  186. 

"The  power  to  compel,  beforehand,  co- 
operation, and  thus,  it  is  believed,  to  make 
a  failure  unlikely  and  a  general  panic  al- 
most impossible,  must  be  recognized,  if 
the  government  is  to  do  its  proper  work, 
unless  we  can  say  that  the  means  have  no 
reasonable  relation  to  the  end.  Gundling  f. 
Chicago,  177  U.  S.  183.  188,  44  L.  Ed.  725, 
20  S.  Ct.  633.  So  far  is  that  from  being 
the  case  that  the  device  is  a  familiar  one. 
It  was  adopted  by  some  states  the  better 
part  of  a  century  ago.  and  seems  never 
to  have  been  questioned  until  now."  Noble 
State  Bank  v.  Haskell.  219  U.  S.  104,  55 
L.   Ed.  112,  31   S.  Ct.   186. 

When  a  state  legislature  declares  by  im- 
plication "that  free  banking  is  a  public 
danger,  and  that  incorporation,  inspection, 


187 


16 


BANKS  AND  BANKING. 


Vol.  IIL 


of  the  chief  objects  and  justification  of  which  is  securing  the  currency  of 
checks.^sm  ^^Q  wisdom  of  the  legislation  is  no  concern  of  the  courts-^-"-"  Con- 
tract obligations  under  a  banker's  charter  which  is  subject  to  alteration  or  repeal 
are  not  unconstitutionally  impaired  by  the  levy  and  collection  of  an  assessment 
under  such  statute,-"*^"  and  such  statutes  does  deprive  the  bank  of  liberty  or 
property  without  due  process  of  law/^^P  The  levy  and  collection  of  such  assess- 
ment is  for  a  public  use,  although  judged  from  the  proximate  effect  of  the  taking, 
the  use  seems  to  be  a  private  one.-^""" 

Preference  of  Depositors  over  Other  Creditors— Equal  Protection  of 
the  Laws. — An  unconstitutional  discrimination  does  not  result  from  the  pref- 
erence of  ordinary  depositors  over  other  creditors,  given  by  a  state  statute 
creating  a  bank  depositors'  guaranty  fund  for  the  purpose  of  securing  the  full 
repayment  of  deposits  in  case  of  the  insolvency  of  any  bank  contributing  to  the 
fund.35r 


and  the  above-described  co-operation  are 
necessary  safeguards,  this  court  certainly 
can  not  say  it  is  wrong."  Noble  State 
Bank  v.  Haskell,  219  U.  S.  104,  55  L.  Ed. 
112,   31    S.    Ct.    186. 

16-35m.  Securing  currency  of  checks. — 
Noble  State  Bank  v.  Haskell,  219  U.  S. 
104,  55  L.  Ed.  112,  31  S.  Ct.  186.  See, 
also,  Engel  v.  O'Malley,  219  U.  S.  128,  55 
L.  Ed.  128,  31  S.  Ct.  191. 

"Among  matters  of  that  sort,  probably 
few  would  doubt  that  both  usage  and 
preponderant  opinion  give  their  sanction 
to  enforcing  the  primary  conditions  of 
successful  commerce.  One  of  those  con- 
ditions at  the  present  time  is  the  possi- 
bility of  payment  by  checks  drawn  against 
bank  deposits,  to  such  an  extent  do  checks 
replace  currency  in  daily  business.  If, 
then,  the  legislature  of  the  state  thinks 
that  the  public  welfare  requires  the  meas- 
ure under  consideration,  analogy,  and 
principle  are  in  favor  of  the  power  to  en- 
act it.  Even  the  primary  object  of  the  re- 
quired assessment  is  not  a  private  benefit, 
*  *  *  but  it  is  to  make  the  currency  of 
checks  secure,  and  by  the  same  stroke  to 
make  safe  the  almost  compulsory  resort  of 
depositors  to  banks  as  the  only  available 
means  for  keeping  money  on  hand.  The 
priority  of  claim  given  to  depositors  is 
incidental  to  the  same  object,  and  is  jus- 
tified in  the  same  way."  Noble  State  Bank 
V.  Haskell.  219  U.  S.  104,  55  L.  Ed.  112,  31 
S.   Ct.   186. 

16-35n.  Wisdom  of  legislation. — Noble 
State  Bank  v.  Haskell.  219  U.  S.  575.  55 
L.  Ed.  341,  31   S.   Ct.  299. 

16-350.  Impairment  of  contract  obliga- 
tions— Right  to  amend  charter  reserved. — 
Contract  obligations  under  a  bank's  char- 
ter which  is  subject  to  alteration  or  repeal 
are  not  unconstitutionally  impaired  by  the 
levy  and  collection,  under  a  state  statute, 
of  an  assessment  based  upon  average 
daily  deposits,  for  the  purpose  of  creating 
a  depositors'  guaranty  fund  to  secure  the 
lull  repayment  of  deposits  in  case  it  or 
any   other   bank    existing   under   the    state 


laws  becomes  insolvent,  unless  such  stat- 
ute deprives  the  bank  of  liberty  or  prop- 
erty without  due  process  of  law.  Noble 
State  Bank  v.  Haskell,  219  U.  S.  104,  55 
L.  Ed.  112,  31  S.  Ct.  186,  affirming  decree 
in  97  P.  590,  22  Okl.  48;  Shallenberger  v. 
First  State  Bank,  219  U.  S.  114.  55  L.  Ed. 
117.  31  S.  Ct.  189,  reversing  decree  (C.  C. 
1909).  First  State  Bank  of  Holstein,  Neb., 
v.    Shallenberger,    172    F.   999. 

16-35p.  Deprivation  of  due  process  of 
law. — The  levy  and  collection,  under  a 
state  statute,  from  every  bank  existing 
under  the  state  laws,  of  an  assessment 
based  upon  the  average  daily  deposits,  for 
the  purpose  of  creating  a  depositors' 
guaranty  fund  to  secure  the  full  repay- 
ment of  deposits  in  case  any  such  bank 
becomes  insolvent,  can  not  be  regarded 
as  depriving  a  solvent  bank  of  its  liberty 
or  property  without  due  process  of  law. 
Noble  State  Bank  z:  Haskell.  219  U.  S. 
104,  55  L.   Ed.  112.  31   S.  Ct.  186. 

"In  this  case  there  is  no  out-and-out 
unconditional  taking  at  all.  The  payment 
can  be  avoided  by  going  out  of  the  bank- 
ing business,  and  is  required  only  as  a 
condition  for  keeping  on,  from  corpora- 
tions created  by  the  state."  Noble  State 
Bank  z:  Haskell,  219  U.  S.  575, -55  L.  Ed. 
341,  31   S.  Ct.  299. 

16-35q.  Public  use. — The  levy  and  col- 
lection, under  a  state  statute,  from  every 
bank  existing  under  the  state  laws,  of  an 
assessment  based  upon  average  daily  de- 
posits, for  the  purpose  of  creating  a  de- 
positor's guaranty  fund  to  secure  the  full 
repayment  of  deposits  in  case  any  such 
l^ank  becomes  insolvent,  is  for  a  public 
use.  Although  judged  from  the  proxi- 
mate efifect  of  the  taking,  the  use  seems  to 
be  a  private  one.  Noble  State  Bank  v. 
Haskell,  219  U.  S.  575,  55  L.  Ed.  341,  31 
S.  Ct.  299. 

16-35r.  Preference  of  depositors  over 
other  creditors. — Assara  State  Bank  z'. 
Dolley,  219  U.  S.  121,  55  L.  Ed.  123,  31 
S.    Ct.    189. 


188 


Vol.  III. 


BANKS  AND  BANKING. 


16-39 


Contribution  Not  Absolutely  Required.— A  state  statute  creating  a  bank 
depositor's  guaranty  fund  for  the  purpose  of  securing  the  full  repayment  of 
deposits  in  case  of  the  insolvency  of  any  bank  contributing  to  the  fund  is  no 
less  a  valid  exercise  of  the  police  power  because  contribution  to  such  fund  i<5 
not  absolutely  reciuired.^-'"'' 

The  exclusion  of  unincorporated  banks,  and  banks  not  having  a  sur- 
plus of  10  per  cent,  from  availing  themselves  of  the  privileges  of  a  state  statute 
creating  a  bank  depositors'  guaranty  fund  for  the  purpose  of  securing  the  full 
repayment  of  deposits  in  case  of  the  insolvency  of  any  bank  contributing  to  the 
fund,  is  not  an  unconstitutional  discrimination  against  them.'-'"' 

Exemption  of  Certain  Classes  of  Banks. — The  exempting  of  national 
banks  and  banks  under  the  supervision  of  bank  commissioners  and  loan  com- 
panies from  the  operation  of  otherwise  valid  exercises  of  the  police  power  of 
the  state  is  not  discriminatory  and,  therefore,  not  a  denial  of  the  equal  protec- 
tion of  the  laws.2^" 

III.    Exercise  of  Banking  Functions. 

A.  Right  and  Mode  of  Exercise— 5.  Ultra  Aires  x\cts. — See  post,  "Res- 
titution of  or  Compensation  for  Property  Obtained  Ultra  \"ires,"  III,  B,  8. 

6.  Incidental  Powers. — Under  U.  S.  Rev.  Stats.,  §  5136,  a  national  bank 

may  exercise  all  such  incidental  ])owers  as  shall  be  necessary  to  carry  on  bank- 
'ng.^ca 

7.  Acting  as  Trustee.— Trustee. — Under  U.  S.  Rev.  Stats.,  §  5136,  a 
national  bank  may  act  as  a  fiduciary  and  occupy  a  trust  relation  in  matters  con- 
nected with  the  banking  business."**^'' 

B.  Dealings,  Duties  and  Liabilities — 2.  With  Respect  to  Deposits — 
c.    Special  Deposits  and  Depositaries. — See  note  15.     A  general  lien  in  favor  of 


16-35S.      Contributions     voluntary. — As- 

sara  State  Bank  v.  Dolley,  219  U.  S.  121, 
55  L.  Ed.  123,  31  S.  Ct.  189,  affirming  de- 
cree   (C.   C.   1909),  175    F.   365. 

16-35t.  Exclusion  of  unincorporated 
banks  and  banks  having  surplus  less  than 
10  per  cent. — Assara  State  Bank  v.  Dolley, 
219  U.  S.  121,  55  L.  Ed.  123,  31  S.  Ct.  189. 

If  instead  of  requiring  incorporation,  by 
providing  that  no  banking  business  shall 
be  done  except  by  corporations,  and 
further  finding  that  corporations  shall  not 
be  formed  or  continue  with  less  than  a 
surplus  of  10  per  cent,  both  provisions 
being  for  the  purpose  of  assuring  safety, 
the  state  allows  the  plaintiffs  to  keep  on 
without  incorporation,  and  with  a  smaller 
surplus,  they  can  not  complain  that  the 
safer  banks  will  outstrip  them  as  the  re- 
sult of  the  law.  Assara  State  Bank  r. 
Dolley.  219  U.  S.  121.  55  L.  Ed.  123,  31 
S.    Ct.    189. 

16-35U.  Exemption  of  certain  classes  of 
banks.— :\Iutual  Loan  Co.  z\  Martell,  222 
U.  S.  225,  56  L.  Ed.  175,  32  S.  Ct.  74:  As- 
sara State  Bank  z:  Dolley,  219  U.  S.  121. 
55    L.    Ed.    123,    31    S.    Ct.    189. 

Regulating  assignments  of  future  earn- 
ings.— Exempting  national  banks,  and 
banks  under  the  supervision  of  the  l^ank 
commissioner,  and  certain  loan  companies, 
from  the  provisions  of  Mass.  Laws  1908, 
chap.  605.  §§  7,  8,  making  invalid  against 
the    cmploj'er    assignments    nf.    or    orders 


for,  wages  to  be  earned  in  the  future,  un- 
less recorded,  accepted  in  writing  by  the 
employer,  and  accompanied  by  the  written 
consent  of  the  wife  of  the  einployee,  does 
not  deny  the  equal  protection  of  the  laws 
to  an  assignee  not  falling  within  one  of 
the  excepted  classes.  Mutual  Loan  Co.  v. 
Martell,  222  U-  S.  225,  56  L.  Ed.  175,  32 
S.    Ct.   74. 

20-46a.  Incidental  powers. — Miller  v. 
King,  223  U.  S.  505,  56  L.  Ed.  528,  32  S. 
Ct.    243. 

20-46b.  Trustee.— Miller  z\  King,  223  U. 
S.    505,   56    L.    Ed.    528,    32    S.    Ct.    243. 

"A  national  bank  can  not  act  as  a  tech- 
nical trustee  and  hold  land  for  the  benefit 
of  third  persons.  It  can  not,  for  ex- 
ample, act  as  trustee  under  a  railroad 
mortgage,  nor  take  title  to  property  to  be 
held  for  the  life  of  the  grantor,  with  re- 
mainder to  his  children.  Every  such 
transaction  would  be  voidable  at  the  in- 
stance of  the  government.  Kerfoot  v. 
Farmers',  etc.,  Bank,  218  U.  S.  281,  54  L. 
Ed.  1042.  31  S.  Ct.  14."  Miller  v.  King, 
223  U.   S.  505.  56  L.   Ed.  528,  32  S.   Ct.  243. 

39-15.  Banker's  lien. — A  general  bank- 
er's lien  arises  in  favor  of  a  bank  or 
banker  out  of  contract,  expressed  or  im- 
plied, 1'rom  the  usage  of  the  business,  in 
the  absence  of  anvthing  to  show  a  con- 
trary intention.  Ordinarily,  the  Hen  at- 
taches in  favor  of  a  hank  upon  securities 
and  moneys  of  the  cu.<tomer,  deposited  in 


189 


39 


BANKS  AND  BANKING. 


Vol.  III. 


a  bank  can  not  attach  to  securities  which  are  dehvered  to  it  in  order  that  it 
may  do  a  particular  thing  with  them,  when  it  refuses  to  do  that  thing,  the  duty 
to  return  exists. ^^'^ 

A  bank  which  refuses  to  discount  notes  sent  to  it  by  a  correspondent 
bank  for  discount  and  credit  has  no  right,  by  virtue  of  its  general  banker's 
lien,  to  apply  such  notes  as  collateral  to  the  payment  of  a  loan  voluntarily  made 
to  cover  an  overdraft  of  such  correspondent  bank.^^"  Nor  has  it  such  right  by 
virtue  of  an  agreement  embodied  in  a  printed  form  prepared  by  such  bank,  and 
in  general  use  by  it,  which  gives  the  said  bank  power  to  appropriate  any  securi- 
ties "deposited  with  said  bank,  or  which  may  hereafter  be  deposited  wi^-h  said 
bank,  or  which  may  be  in  any  wise  in  said  bank  or  under  its  control,  as  collat- 
eral security  for  loans  or  advances  already  made  or  hereafter  to  be  made  to  or 
for  account  of"  its  said  correspondent  by  said  bank,  or  otherwise. ^^'^  The  in- 
action of  a  bank  upon  receiving  notification  that  certain  notes  sent  by  it  to  an- 
other bank  for  discount  and  credit  would  not  be  discounted,  but  would  be  held 
as  collateral,  and  that  credit  should  either  be  transferred  from  other  banks  or 
currency  shipped,  is  not  equivalent  to  a  request  on  its  part  to  pay  overdrafts 


the  usual  course  of  business,  etc.  It  does 
not  arise  upon  securities  accidentally  in 
the  possession  of  the  bank,  or  not  in  its 
possession  in  the  course  of  its  business, 
as  such,  nor  where  the  securities  are  in 
its  hands  under  circumstances,  or  where 
there  is  a  particular  mode  of  dealing,  in- 
consistent with  such  general  lien.  Han- 
over Nat.  Bank  z>.  Suddath,  215  U.  S.  110, 
54  L.  Ed.  115,  30  S.  Ct.  58,  following 
Reynes  v.  Dumont,  130  U.  S.  354,  32  L. 
Ed.   934,    9    S.    Ct.   486. 

39-15a.  Securities. — Hanover  Nat.  Bank 
V.  Suddath,  215  U.  S.  110,  54  L.  Ed.  115, 
30  S.  Ct.  58. 

In  Reynes  v.  Dumont,  130  U.  S.  354.  32 
L.  Ed.  934,  9  S.  Ct.  486,  "securities  had 
been  sent  to  bankers  for  a  specific  pur- 
pose. That  purpose  having  been  accom- 
plished, the  securities  were  permitted  to 
remain  in  the  custody  of  the  bankers  as 
depositaries,  because  they  were  in  a  good 
market  and  a  place  convenient  for  pro- 
curing loans,  and  because  the  expressage 
upon  their  return  would  have  been  great. 
The  right  to  a  general  bankers'  lien  upon 
the  securities  was  denied."  Hanover  Nat. 
Bank  r.  Suddath.  215  U.  S.  110,  54  L.  Ed. 
115.   30   S.   Ct.   58. 

"In  Biebinger  v.  Continental  Bank,  99  U. 
S.  143,  23  L.  Ed.  271.  it  appeared  a  deed 
had  been  denosited  with  the  bank  as  col- 
lateral security  for  the  customer's  current 
indebtedness  and  discounts.  After  pay- 
ment of  this  indebtf'dness  and  a  temporary 
suspension  of  dealings,  the  customer  in- 
curred new  indebtedness  to  the  bank;  but, 
as  it  did  not  appear  that  the  money  was 
loaned  or  debt  created  on  tl^e  faith  of  the 
deposit  of  the  deed,  the  bank's  claim  of  a 
lien  thereon  was  denied."  Hanover  Nat. 
Bank  z'.  Suddath,  215  U.  S.  110,  54  L.  Ed. 
115,   30   S.   Ct.   58. 

39-15b.  Notes  discount  of  which  de- 
clined.— Tudsment  (1907).  153  F.  1021.  83 
C.    C.    A.    676,    affirmed    in    Hanover    Nat. 


Bank  v.  Suddath,  215  U.  S.  110,  54  L.  Ed. 
115,   30  S.   Ct.   58. 

The  mere  possession  of  the  notes  by 
the  bank  after  its  refusal  to  discount  them 
did  not  justify  it  in  relying  upon  the  notes 
as  collateral  security  for  the  indebtedness 
which  arose  from  the  voluntary  payment 
of  the  draft  drawn  bj'  the  correspondent 
bank  upon  it,  when  there  were  no  funds 
in  its  possession  to  meet  the  draft.  Han- 
over Nat.  Bank  v.  Suddath,  215  U.  S.  122, 
54  L.  Ed.   120,  30   S.   Ct.  63. 

In  Bank  v.  White,  154  U.  S.  660,  26  L. 
Ed.  307,  14  S.  Ct.  1191,  which  was  an  ac- 
tion to  recover  upon  a  promissory  note, 
in  order  to  escape  the  contention  that  it 
was  not  an  innocent  holder,  the  bank  con- 
tended that,  before  the  note  was  sent  to  it 
for  discount,  the  sender  was  under  a 
promise  to  furnish  security  for  advances 
to  be  made,  and  therefore  the  rights  of 
the  bank  as  an  innocent  holder  were  to 
be  determined  by  the  state  of  its  knowl- 
edge at  the  time  the  note  was  received, 
although  the  discount  was  declined,  and 
not  by  the  state  of  knowledge  existing 
when,  at  a  subsequent  date,  the  note  was 
actually  discounted.  In  disposing  of  a 
contention  that  the  trial  court  has  com- 
mitted error  in  not  giving  an  instruction 
which  the  bank  asked  in  accord  with  its 
contention  as  just  stated.  It  was  in  ef- 
fect held  that  the  bank  had  no  lien  on  the 
note,  there  having  been  no  pledge  of  the 
note  if  the  discount  was  declined.  Han- 
over Nat.  Bank  zk  Suddath.  215  U.  S.  110. 
54    L.    Ed.    115,   30   S.    Ct.    58. 

39-15C.  Effect  of  agreement  in  general 
use. — Hanover  Nat.  Bank  v.  Suddath,  215 
U.   S.   110,   54   L.   Ed.   115.   30   S.   Ct.   58. 

It  was  so  held  as  to  notes  sent  to  a 
bank  by  its  correspondent  for  discount 
and  credit,  which  such  bank  refuses  to- 
rediscount.  Hanover  Nat.  Bank  r.  Sud- 
dtith.  215  U.  S.  110,  54  L.  Ed.  115.  30  S.. 
Ct.  58. 


190 


Vol.  III. 


BANKS  AND  BANKING. 


39-47 


previously  drawn  when  presented,  and  to  hold  as  collateral  the  notes  which 
had  been  sent  for  discount. ^-^"^ 

Pledge  to  Secure  Specified  Loan  or  Debt.— A  special  deposit  may  be 
specifically  pledged  to  the  bank  to  secure  a  specified  loan  or  debt.^^'^ 

f.  Unclaimed  Deposits. — Laws  Mass.  1907,  c.  340,  providing  that  deposits 
which  have  remained  inactive  and  unclaimed  for  thirty  years,  where  the  claim- 
ant is  unknown  or  the  depositor  can  not  be  found,  shall  be  paid  to  the  treasurer 
and  receiver  general,  to  be  held  by  Rim  as  trustee  for  the  true  owner  or  his 
legal  representative,  is  not  unconstitutional,-^^""  being  a  valid  exercise  of  the 
police  power  of  the  state. ^^^    It  is  not  a  deprivation  of  property  without  due  proc- 


39-15d.  Inaction  not  equivalent  to  re- 
quest to  pay. — Judgment  (1907),  153  F. 
1021.  82  C.  C.  A.  6T6.  affirmed.  Hanovei 
Nat.  Bank  v.  Suddath,  215  U.  S.  110,  54 
L.   Ed.   115,   30   S.   Ct.   58. 

39-15e.  Pledge  to  secure  specified  loan 
or  debt. — A  bank  wliich.  in  order  to  de- 
ceive a  bank  examiner,  discounts  the  note 
of  a  president  of  another  national  bank 
and  places  the  proceeds  to  the  credit  of 
his  bank  in  a  special  account,  not  subject 
to  check,  does  not.  by  charging  the  note 
against  the  account,  in  accordance  with 
the  agreement,  without  knowledge  of  the 
other  bank's  failing  condition,  become  li- 
able to  the  receiver  of  such  other  bank  as 
for  a  conversion,  on  the  theory  that,  be- 
cause such  president  drew  his  check  on 
the  other  bank  for  the  full  amount,  and 
deposited  it  to  his  eredit  in  bis  own  bank, 
and.  by  means  of  a  corresponding  check 
against  his  personal  account,  removed 
from  the  assets  of  his  bank  certain  notes 
objected  to  by  the  bank  examiner,  the 
transaction  must  be  regarded  as  really  a 
loan  to  the  president,  secured  by  an  at- 
tempted pledge  of  the  funds  of  his  bank. 
Judgment,  Cherry  f.  City  Nat.  Bank  of 
Kansas  City,  Mo.  (1906)",  144  F.  587.  75 
C.  C.  A.  343.  affirmed.  Rankin  v.  City 
Nat.  Bank,  208  U.  S.  541.  52  L.  Ed.  610.  28 
S.  Ct.  346. 

47-35a.  Unclaimed  deposits. — Provident 
Institution  v.  Malone.  221  U.  S.  660,  55 
L.  Ed.  899,  31  S.  Ct.  661,  affirming  judg- 
ment in  Malone  v.  Provident  Institution 
for  Savings  in  Boston.  86  N.  E.  912.  201 
Mass.  23. 

47-35b.  ''Savings  banks  are  maintained 
in  the  expectation  that  the  deposits  may, 
for  years,  remain  uncalled  for,  to  the  mu- 
tual advantage  of  bank  and  customer.  So 
that,  if  the  statute  had  provided  that  the 
money  should  be  paid  over  to  the  receiver 
general  if  the  owner,  after  a  short  absence, 
could  not  be  found,  or  if  the  account  re- 
mained inactive  for  a  brief  period,  a  very 
different  question  would  be  presented  from 
that  arising  under  an  act  which  deals  with 
absence  and  nonaction  so  long  continued 
as  to  suggest  that  the  law  of  escheats  or 
of  lost  property  might  be  enforced.  This, 
however,  is  not  a  statute  of  escheats, 
since   it   does   not   proceed   on   the   theory 


that  the  depositor  is  dead,  leaving  no 
heirs.  It  does  not  purport  to  dispose  of 
lost  property,  but  deals  with  a  deposit  the 
owner  of  which,  though  known,  can  not 
be  found.  The  act  is  like  those  which 
provide  for  the  appointment  of  custo- 
dians for  the  real  and  personal  property 
of  an  absentee."  Provident  Institution  v. 
Malone,  221  U.  S.  660,  55  L.  Ed.  899,  31 
S.  Ct.  661. 

"In  this  case,  though  the  money  is  on 
deposit  with  a  bank,  which  has  faithfully 
kept  its  contract,  yet  the  statute  proceeds 
on  the  general  principle  that  corporations 
may  become  involved,  or  may  be  dis- 
solved; or  that,  after  long  lapses  of  time, 
changes  may  occur  which  would  require 
someone  to  look  after  the  rights  of  the 
depositor.  The  statute  deals  with  ac- 
counts of  an  absent  owner,  who  has  so 
long  failed  to  exercise  any  act  of  owner- 
ship as  to  raise  the  presumption  that  he 
has  abandoned  his  property.  And  if 
abandoned,  it  should  be  preserved  until 
he  or  his  representative  appear  to  claim 
it;  or,  failing  that,  until  it  should  be 
escheated  to  the  state.  The  right  and 
power  so  to  legislate  is  undoubted.  Cun- 
nius  c'.  Reading  School  Dist..  198  U.  S. 
458,  49  L.  Ed.  1125,  25  S.  Ct.  721."  Provi- 
dent Institution  v.  Malone,  221  U.  S.  660, 
55  L.   Ed.   899,  31  S.   Ct.   661. 

'"The  statute  here  is  reasonable  in  its 
terms  and  is  so  framed  as  to  work  in- 
justice to  no  one.  It  only  applies  to  cases 
where  no  deposit  has  been  made,  no  in- 
terest added  on  pass  book,  no  check 
drawn  against  the  account,  for  thirty 
years,  and  where  no  claimant  is  known, 
and  the  depositor  can  not  be  found.  Be- 
fore the  money  can  be  turned  over  to  the 
receiver  general,  proceedings  must  be  in- 
stituted in  the  probate  court,  and,  under 
the  decision  of  the  supreme  court  of  the 
state,  personal  notice  must  be  given  to 
the  bank,  and  citation  and  notice,  usual  in 
the  probate  court,  published,  so  as  to  give 
the  depositor,  if  living,  and  his  heirs,  if 
dead,  opportunitj^  to  appear  and  be  heard. 
Even  then  the  property  is  not  escheated, 
but  deposited  with  the  treasurer,  to  hold 
as  trustee  for  the  owner  or  his  legal  repre- 
sentatives, to  whom  it  is  paj'able  when 
the3"  establish  their  right."     Provident  In- 


191 


47-48 


BANKS  AND  BANKING. 


Vol.  III. 


ess  of  law;^^'^  it  is  not  a  denial  of  the  equal  protection  of  the  laws  by  reason 
of  an  arbitrary  discrimination  ;^^'^  nor  is  it  an  impairment  of  the  obligation  of 
the  contract  between  a  savings  bank  and  its  depositor.-"'^^ 

Persons  Who  May  Assail  Validity  or  Attack  Judgment. — A  savings 
bank,  so  far,  at  least,  as  its  rights  are  involved  in  those  of  its  depositors,  may 
raise  the  objection  that  property  is  taken  without  due  process  of  law  by  Mass. 
Laws  1907,  chap.  340,  in  question  ;^^'  but  as  the  statute  only  applies  where  the 
owner  can  not  be  found,  in  the  nature  of  the  case,  therefore,  no  depositor  could 
except  to  the  judgment  of  the  probate  court  which  directed  the  money  to  be 
turned  over  to  the  treasurer.*^ ^= 

3.  With  Respp;ct  to  Collections — a.  Authority. — A  national  bank,  un- 
der U.  S.  Rev.  Stat.,  §  5136,  may  do -those  acts  and  occupy  those  relations 
which  are  usual  or  necessary  in  making  collections  of  commercial  papers  or  other 
evidences  of  debt.^^'^ 


stitution   V.    Malone,"  221   U.   S.   660,   55   L. 
Ed.  899,  31  S.  Ct.  661. 

"On  dissolution,  the  share  of  a  de- 
positor who  could  not  be  found  would  be 
paid  over  to  his  legal  representative,  who 
might  be  an  administrator  in  case  his 
death  was  established,  or  a  guardian,  in 
case  of  mental  incapacity,  or  a  trustee  in 
bankruptcy  in  case  of  insolvency,  or  a 
representative  appointed  under  statutes 
applicable  to  abandoned  property.  But 
it  is  not  necessary  to  wait  for  the  dissolu- 
tion of  the  bank.  If  the  facts  warrant  it, 
a  legal  representative  can  be  appointed  at 
any  time,  with  all  the  rights  incident  to 
such  appointment,  including  that  of  with- 
drawing the  funds  and  holding  them  for 
the  true  owner  when  he  shall  establish 
his  claim."  Provident  Institution  z'.  Ma- 
lone. 221  U.  S.  660,  55  L.  Ed.  899,  31  S. 
Ct.   661. 

"It  is  true  that  the  rate  of  interest  paid 
by  the  state  is  not  the  same  as  that  paid 
by  the  bank,  as  to  sums  under  $1,600  it  is 
less,  and  as  to  those  over  $1,600  it  is  more. 
But  this  is  a  matter  with  which  the  plain- 
tiff in  error  is  not  concerned,  and  can 
arise  only  between  the  state  and  the 
claimant  when  he  asserts  a  right  to  prop- 
erty long  neglected  and  apparently  aban- 
doned." Provident  Institution  t'.  Malone, 
221   U.  S.  660,  55  L.   Ed.  899,  31    S.   Ct.  661. 

47-35C.  Due  process  of  law. — The  prop- 
erty of  a  savings  bank  is  not  taken  with- 
out due  process  of  law  by  Mass.  Laws 
1907,  chap.  340,  providing  that  deposits 
which  have  remained  inactive  and  un- 
claimed for  thirty  years,  where  the  claim- 
ant is  unknown  or  the  depositor  can  not 
be  found,  shall  be  paid  to  the  treasurer 
and  receiver  general,  to  be  held  by  him  as 
trustee  for  the  true  owner  or  his  legal 
representatives.  Provident  Institution  r-. 
Malone,  221  U.  S.  660,  55  L.  Ed.  899  31 
S.  Ct.  661. 

47-35d.  Discrimination. — Savings  bank 
are  not  unconstitutionally  discriminated 
against  by  making  applicable  to  them 
alone  the  provisions  of  Mass.  Laws  1907. 
chap.   340,  that   deposits  which    have     re- 


mained inactive  and  unclaimed  for  thirty 
years,  where  the  claimant  is  unknown  or 
the  depositor  can  not  be  found,  shall  be 
paid  to  the  treasurer  and  receiver  general, 
to  be  held  by  him  as  trustee  for  the  true 
owner  or  his  legal  representatives.  Provi- 
dent Institution  v.  Malone,  221  U.  S.  660, 
55   L.   Ed.  899,  31   S.   Ct.   661. 

"There  is  nothing  unequal  or  discrimi- 
natory in  making  the  act  applicable  only 
to  abandoned  deposits  in  a  savings  bank. 
The  classification  is  reasonable.  Deposits 
in  savings  banks  are  made  in  expectation 
that  they  may  remain  much  longer  un- 
called for  than  is  usual  in  deposits  in 
other  banks.  This  fact  makes  savings  de- 
posits all  the  more  likely  to  be  forgotten 
and  abandoned.  And  as  the  depositors  are 
often  wage  earners,  moving  from  place 
to  place,  there  is  special  reason  for  in- 
tervening to  protect  their  interest  in  this 
class  of  property  in  banks  as  to  which  the 
state's  supervisory  power  is  constantly 
exercised."  Provident  Institution  v.  Ma- 
lone, 221  U.  S.  660.  55  L.  Ed.  899.  31  S.  Ct. 
661. 

47-35e.  Impairment  of  obligation  of  con- 
tract.— The  obligation  of  the  contract  be- 
tween a  savings  bank  and  its  depositor  is 
not  unconstitutionally  impaired  by  Mass. 
Laws,  1907,  chap.  340,  providing  that  de- 
posits which  have  remained  inactive  and 
unclaimed  for  thirty  years,  where  the 
claimant  is  unknown  or  the  depositor  can 
not  be  found,  shall  be  paid  to  the  treasurer 
and  receiver  general,  to  be  held  by  him  as 
trustee  for  the  true  owner  or  his  legal 
representatives.  Provident  Institution  t'. 
Malone.  221  U.  S.  660,  55  L.  Ed.  899,  31  S. 
Ct.  661. 

47-35f.  Persons  who  may  question  valid- 
ity of  statute. — Provident  Institution  t-. 
Malone.  221  U.  S.  660,  55  L.  Ed.  899,  31  S. 
Ct.   661. 

47-35g.  When  statute  applies. — Provi- 
dent Institution  r.  Malone,  221  U.  S.  660. 
55    L.    Ed.   899.   31    S.    Ct.   661. 

48-38a.  National  bank. — Miller  r.  King, 
223  U.   S.   505.  56   L.   Ed.  528,  32  S.   Ct.  243. 

Assignment  of  judgment  for  collection. 
— A   national    i^ank   is   acting    within      the 


19^ 


Vol.  III.  BANKS  AND  BANKING.  50-64 

b.  Title  to  Paper  Deposited  and  Lien  Thereon. — It  is  both  usual  and  proper 
for  the  legal  title  to  negotiable  instruments  to  be  vested  in  a  bank  by  mere 
indorsement  for  purposes  of  collection,  holding  the  proceeds  as  the  indorser 
directs.  There  is  no  difference  in  law  if  the  title  is  conveyed  by  a  lengthier 
and  more  formal  instrument.  In  both  cases  the  bank  takes  the  legal  title  for 
the  purpose  of  demand  and  coUection.'*^^ 

Right  to  Sue. — In  a  proper  case,  there  is  no  reason  why  a  bank  might  not 
go  further  and  institute  suit  in  its  own  name  on  commercial  paper  and  other 
evidences  of  debt  intrusted  to  it  for  collection  for  the  recovery  of  what  may  be 
due.  If  the  transfer  was  made,  or  the  suit  was  being  maintained,  for  purposes 
not  authorized  by  the  charter  of  the  bank,  and  if  the  defendant  was  in  a  position 
where  his  rights  were  prejudiced  thereby,  it  would  be  incumbent  on  him  to 
raise  that  defense  at  the  outset  of  the  litigation,  or  as  soon  as  he  learned  that 
fact.-'s^ 

4.  With  Respect  to  Loans  and  Discounts. — See  ante,  "Special  Deposits 
and  Depositaries,"  III,  B,  2,  c. 

d.  Illegality  of  Loans  as  Affecting  Validity. — Although  the  statute  by  clear 
implication  forbids  a  national  bank  from  making  a  loan  upon  real  estate,  the 
security  is  not  void,  and  it  can  not  be  successfully  assailed  by  the  debtor  or  by 
subsequent  mortgagees  because  the  bank  was  without  authority  to  take  it ;  and 
the  disregard  of  the  provisions  of  the  act  of  congress  upon  that  subject  only 
lays  the  bank  open  to  proceedings  by  the  government  for  exercising  powers  not 
conferred  by  law.^^^ 

f.  Rate  of  Interest  or  Discount. — National  banks  are  prohibited  from  making 
usurious  contracts.  If  they  disregard  its  provisions,  the  law  not  only  furnishes 
a  defense,  but  gives  a  right  of  action.  As  a  defense,  there  is  no  statute  of  lim- 
itations. \Mienever  sued,  the  debtor  may  plead  the  usurious  contract,  and  be 
relieved  from  paying  any  interest  whatever.  But  if  he  elects  to  avail  himself 
of  the  cause  of  action,  he  must  sue  "within  two  years  from  the  time  the  usu- 
rious transaction  occurred.'"-*-^ 

Accrual  of  Cause  of  Action. — The  "usurious  transaction,"  from  the  date 
of  which  the  two  years'  limitation  prescribed  by  U.  S.  Rev.  Stat.,  §  5198,  U.  S. 
Comp.  Stat.  1901,  p.  3493,  for  actions  to  recover  back  twice  the  amount  of  in- 
terest paid  a  national  bank,  begins  to  run,  occurs  on  the  date  of  the  payment  of 
the  usurious  interest,  and  not  on  the  date  of  the  loan  or  from  the  date  when  the 
debt  was  paid.^-'' 

scope  of  its  power,  under  U.  S.  Rev.  Stat.,  transferred  to  it  prior  to  the  rendition  of 

§  5136,  U.  S.  Comp.  Stat.  1901,  p.  3455,  to  the    judgment,    the    bank    may    sue    in    its 

exercise   "all   such   incidental    powers     as  own  name  conformably  to  the  local  law, 

shall   be   necessary  to   carry   on   banking,"  to    recover    from    such    attorney    the    pro- 

where  it  accepts  an  assignment  of  a  judg-  ceeds    of   the    judgment.     Miller   v.    King, 

ment  for  collection,  and  agrees  to  hold  the  223  U.  S.  505,  56  L.  Ed.  528.  32  S.  Ct.  243. 

proceeds   subject   to   the   order  of   the  as-  62-83a.     Taking    real    estate    security.— 

signer.     Miller  v.  King,  223  U.   S.   505,   55  Kerfoot    v.    Farmers',    etc..    Bank.    218    U. 

L.  Ed.  528.  32  S.  Ct.  243.  S.  281.  54  L.  Ed.  1042.  31  S.  Ct.  14. 

50-43a.    Title  to  paper  and  lien  thereon.  64-92a.    Rate   of  interest   or  discount.— 

—Miller  v.  King.  223  U.  S.  505.  56  L.  Ed.  McCarthy   7'.    First   Nat.    Bank,   223   U.    S. 

528.  32  S.  Ct.  243.     See  ante.  "Special  De-  493.  56  L.   Ed.  523.  32   S.  Ct.  240. 

posits  and  Depositaries,"  TIT,  B,  2,  c.  64-92b.    Accrual   of  cause    of    action.— 

52-48a.    Right  to  sue.— Miller    v.    King,  McCarthy  v.   First    Nat.   Bank,   223    U.   S. 

223  U.   S.  505,  56  L.   Ed.  528,  32   S.  Ct.  243.  493,   56   L.   Ed.   523,  32   S.  Ct.   240. 

Where  a  native  bank  accepts  an  assign-  This   "appears   from  an  analysis   of  the 

ment  of  a  judgment    for     collection,     and  two   classes   of   cases   referred   to   m    Rev. 

agrees  to  hold  the  proceeds  subject  to  the  Stat.,  §  5198,  noting  that  'mterest  paid'  in 

order   of   the    assignor,    and,   its   attorney,  the  last  clause  is  used  in  contradistinction 

after   collecting    the     money,     improperly  to    interest    'reserved    or    charged.'    in    the 

pays    it    over     to      a      corporation      which  first  sentence  of  the  section.     Banks  may 

claimed  that  the  cause  of  action  had  been  make   ordinary  loans  and  charge   interest 

12   U   S    Enc— 13  193 


67 


BANKS  AND  BANKING. 


Vol.  III. 


g.  Rights  and  Liabilities — (2)  As  to  Collateral. — See  post,  Pledge  and  Col- 
lateral Security.  See,  also,  ante,  "Special  Deposits  and  Depositaries,"  III, 
B,  2,  c. 

(5)  Lien  on  Deposits. — See  ante,  "Special  Deposits  and  Depositaries,"  III, 
B,  2,  c. 

(6)  As  to  Paper  Refused  Discount. — See  ante,  "Special  Deposits  and  Depos- 
itaries," III,  B,  2,  c. 

5.    With  Respect  to  Ownership  qe  Property. — See  note  4. 


to  be  collected  at  the  maturity  of  the  note. 
But,  as  they  usually  reserve  and  deduct  it 
in  advance,  by  way  of  discount,  the  stat- 
ute is  framed  so  as  to  apply  to  cases 
where  the  interest  is  paid  by  the  debtor 
as  well  as  to  those  in  which  it  is  reserved 
by  the  bank.  These  deductions,  by  way  of 
discount,  are  not  treated  as  payments. 
They  do  not  come  out  of  the  debtor's 
pocket,  though  they  lessen  the  amount 
which  he  receives  when  the  loan  is  made, 
and  when  sued  he  may  plead  usury  and 
escape  liability  for  the  amount  thus 
charged  or  retained.  But  such  reserva- 
tion by  the  bank,  not  being  a  payment 
made  by  the  debtor,  he,  of  course,  can 
not  avail  himself  of  the  right  to  maintain 
a  suit  given  only  to  those  who  have  paid 
interest."  McCarthy  v.  First  Nat.  Bank, 
223  U.  S.  493,  56  L.  Ed.  523,  32  S.  Ct.  240. 

"But  when  the  debtor  actually  makes  a 
payment,  as  interest  and  the  bank  know- 
ingly receives  and  appropriates  it  as  such, 
the  usurious  transaction  is  complete,  the 
right  of  the  one  and  the  liability  of  the 
other  is  fixed,  the  cause  of  action  arises,  and 
vbe  statute  of  limitations  begins  to  run. 
There  is  no  locus  penitentise.  That  privi- 
lege is  only  granted  to  those  banks  which, 
having  charged  usury,  may,  by  a  refusal 
to  accept  interest  when  tendered,  show 
that  they  will  not  carry  the  illegal  con- 
tract into  execution,  and  thus  escape  the 
twofold  penalty."  McCarthy  v.  First  Nat. 
Bank,  223  U.  S.  493,  56  L.  Ed.  523,  32  S. 
Ct.   240, 

"Those  courts  which  hold  that  the  stat- 
ute begins  to  run  from  the  payment  of  the 
debt,  instead  of  the  payment  of  the  in- 
terest, have  been  influenced  by  statements 
of  Mr.  Justice  Harlan  in  McBroom  v. 
Scottish  Mortg.,  etc.,  Co.,  153  U.  S.  318, 
38  L.  Ed.  729,  14  S.  Ct.  852,  which  in- 
volved the  construction  of  the  usury  stat- 
ute of  the  territory  of  New  Mexico.  That 
act  dififered  in  several  respects  from  Rev. 
Stat.,  §  5198.  But  that  case  did  not  rule 
that  in  a  suit  under  the  act  of  congress, 
the  statute  did  not  run  from  the  date 
usury  was  paid  and  received  as  such.  This 
court  did  not  understand  that  such  was 
the  meaning  of  that  case,  as  appears  from 
his  opinion  in  Brown  v.  Marion  Nat.  Bank, 
169  U.  S.  416,  42  L.  Ed.  801.  18  S.  Ct.  390, 
which  involved  a  construction.  Rev.  Stat  , 
§  5198.     For  he  there  points  out  the   dif- 


ference between  'paying'  and  'agreeing  to 
pay,'  and  says  that,  'if  at  any  time  the 
obligee  actually  pays  usurious  interest,  as 
such  the  usurious  transaction  must  be  held 
to  have  then,  and  not  before,  occurred, 
and  he  must  sue  within  two  years  there- 
after.' "  McCarthy  v.  First  Nat.  Bank,  223 
U.   S.   493,   56   L.    Ed.   523,  32   S.    Ct.   240. 

67-4.  With  respect  to  ownership  of 
property. — Where  a  bank  is  incompetent 
to  acquire  and  hold  real  estate,  a  convey- 
ance to  it  is  not  void,  but  voidable,  and 
the  sovereign  alone  can  object.  Neither 
the  grantor  nor  his  heirs,  nor  third  per- 
sons can  impugn  it  on  the  ground  that  the 
grantee  has  exceeded  its  powers.  It  is 
valid  until  assailed  by  the  sovereign  in  di- 
rect proceedings  instituted  for  that  pur- 
pose. Kerfoot  v.  Farmers',  etc..  Bank,  218 
U.  S.  281,  54  L.  Ed.  1042,  31  S.  Ct.  14,  fol- 
lowing Smith  V.  Sheeley,  12  Wall.  358,  20 
L.  Ed.  430;  National  Bank  v.  Matthews, 
98  U.  S.  621,  25  L.  Ed.  188;  National  Bank 
V.  Whitney,  103  U.  S.  99,  26  L.  Ed.  443; 
Reynolds  v.  Crawfordsville  First  Nat. 
Bank,  112  U.  S.  405,  28  L.  Ed.  733.  5  S. 
Ct.  213;  Fritts  v.  Palmer,  132  U.  S.  282, 
33  L.  Ed.  317,  10  S.  Ct.  93;  and  Swope  v. 
Leffingwell,  105  U.  S.  3.  26  L.  Ed.  939,  and 
stating  that  McCormick  v.  Market  Bank, 
165  U.  S.  538,  41  L.  Ed.  817,  17  S.  Ct. 
433;  California  Bank  v.  Kennedy,  167  U. 
S.  362,  42  L.  Ed.  198,  17  S.  Ct.  831.  and 
Concord,  etc.,  Nat.  Bank  v.  Hawkins,  174 
U.  S.  364,  43  L.  Ed.  1007,  19  S.  Ct.  739,  are 
in  no  way  inconsistent  with  the  doctrine 
laid  down. 

"This  rule,  while  recognizing  the  au- 
thority of  the  government  to  which  the 
corporation  is  amenable,  has  the  salutary 
effect  of  assuring  the  security  of  titles  and 
of  avoiding  the  injurious  consequences 
which  would  otherwise  result."  Kerfoot 
V.  Farmers',  etc..  Bank.  218  U.  S.  281,  54 
L.  Ed.  1042,  31  S.  Ct.  14. 

The  United  States  alone  can  object  to 
the  want  of  authority  of  a  national  bank, 
under  Rev.  St.  U.  S.,  §  5137  (U.  S.  Comp. 
St.  1901,  p.  3460),  to  accept  a  conveyance 
of  real  property  to  be  held  in  trust.  Ker- 
foot V.  Farmers',  etc.,  Bank,  218  U.  S. 
281,  54  L.  Ed.  1042,  31  S.  Ct.  14,  affirming 
decree  Hall  v.  Same  (1898),  46  S.  W.  1000, 
145  _Mo.  418. 

Right  to  hold  as  trustee. — See  ante, 
"Acting  as  Trustee,"  HI,  A,  7. 


194 


Vol.  III. 


BANKS  AND  BANKING. 


78-96 


7.  With  Respect  to  Contracts  ix  General— c.  National  Banks— (2)  Con- 
tracts of  Guaranty. — A  national  bank  which,  in  pursuance  of  a  previous  agree- 
ment with  its  debtor  that  he  will  devote  to  the  discharge  of  his  indebtedness  a 
part  of  the  proceeds  of  a  loan  to  be  obtained  by  him  from  another  bank,  re- 
quests the  making  of  such  loan,  and  guarantees  its  payment  at  maturity,  must 
account  to  the  lending  bank  for  the  sum  which  it  receives  for  its  own  use  in  the 
execution  of  the  agreement,  even  though  such  guaranty  is  beyond  its  powers 
under  the  national  banking  statutes.'^^^ 

8.  Restitution  of  or  Compensation  eor  Property  Obtained  Ultr.\  Vires. 
— Although  restitution  of  property  obtained  by  a  bank  under  contract  which 
was  illegal  because  ultra  vires,  can  not  be  adjusted  by  force,  of  the  illegal  con- 
tract, yet,  as  the  obligation  to  do  justice  rests  in  all  persons,  natural  and  artifi- 
cial, if  a  bank  obtains  the  money  or  property  of  others  without  authority,  the 
law,  independently  of  expressed  contract,  will  compel  restitution  or  compensa- 
tion.^"^^  The  relief  afforded  by  the  court  in  such  cases  gives  to  the  owners  so 
much  of  their  money  or  property  as  actually  passed  into  the  hands  of  the  bank.-*'*' 

IV.  Officers  and  Agents. 

B.  Powers,  Duties  and  Liabilities— 1.  Powers  and  Duties— f.  Borrozv 
Money  for  Bank's  Use. — The  executive  officers  of  a  national  bank  may  legiti- 
mately borrow  money  for  the  bank's  use,  in  the  usual  course  of  business,  with- 
out special  authority  from  their  board  of  directors.^^ 

2.  Liabilities — a.  Ciml  Liability — (1)  Of  Directors — (a)  In  General. — 
False  Report  by  Directors. — The  act  of  directors  of  a  national  bank  in  in- 
cluding as  a  part  of  the  resources  in  a  report  of  the  condition  of  the  bank,  pur- 
suant to  a  call  of  the  comptroller  of  the  currency,  assets  which  had  previously 
been  called  to  their  attention  by  the  comptroller  as  doubtful,  with  directions  for 
their  immediate  collection  or  removal  from  the  bank,  is  in  effect  an  intentional 
violation  of  the  national '  bank  act,  knowingly  committed,  so  as  to  render  them 
liable  for  a  loss  resulting  to  one  purchasing,  in  reliance  on  such  renort,  stock 


78-38a.  Contract  of  guaranty. — Judg- 
ment, Appleton  V.  Citizens'  Cent.  Nat. 
Bank  of  New  York  (1908),  83  N.  E.  470, 
190  N.  Y.  417,  affirmed  in  Citizens'  Cent. 
Nat.  Bank  v.  Appleton,  216  U.  S.  196,  54 
L.  Ed.  443,  30  S.  Ct.  364,  citing  and  quot- 
ing with  approval  in  Logan  County  Nat. 
Bank  z:  Townsend,  139  U.  S.  67,  74,  3.5 
L.  Ed.  107.  11  S.  Ct.  496.  and  Aldrich  z: 
Chemical  Nat.  Bank.  176  U.  S.  618,  44  L. 
Ed.  611,  20  S.   Ct.  498. 

80-47a.  Restitution  of  or  compensation 
for  property  obtained  ultra  vires. — Citizens' 
Cent.  Nat.  Bank  z\  Appleton,  216  U.  S. 
196,  54  L.  Ed.  443,  30  S.  Ct.  364,  reviewing 
and  commenting  upon  the  rulings  in  Lo- 
gan County  Nat.  Bank  v.  Townsend,  139 
U.  S.  67,  35  L.  Ed.  107,  11  S.  Ct.  496; 
Aldrich  v.  Chemical  Nat.  Bank,  176  U.  S. 
618,  44  L.  Ed.  611,  20  S.  Ct.  498;  Central 
Transp.  Co.  v.  Pullman's,  etc.,  Car  Co., 
139  U.  S.  24,  35  L.  Ed.  55,  11  S.  Ct.  478. 
and  Pullman's,  etc..  Car  Co.  v.  Central 
Transp.  Co..  171  U.  S.  138,  43  L.  Ed.  108. 
18  S.  Ct.  808.  followed  and  approved  in 
Rankin  z'.  Emigh,  218  U.  S.  27,  54  L.  Ed. 
015,   30   S.   Ct.   672. 

Those  portions  of  the  collections  on  ac- 
count  of  sales  of  butter  actually  coming 


into  the  hands  of  the  receiver  of  a  national 
bank  which  had  virtually  acquired  and 
operated  through  its  officers  an  insolvent 
creamery  company  doing  business  under 
an  arrangement  by  which  the  proceeds  nf 
sales,  less  a  stated  compensation,  were  to 
be  divided  pro  rata  among  those  furnish- 
ing the  milk,  may  be  recovered  by  the 
latter,  even  though  the  transaction  maj'' 
have  been  beyond  the  powers  of  the  bank, 
and  they  are  further  entitled  to  participate 
pro  rata  as  general  creditors  to  the  ex- 
tent that  the  proceeds  of  such  sales  had 
been  diverted  and  appropriated  by  the 
bank.  Rankin  v.  Emigh,  218  U.  S.  27.  54 
L.  Ed.  915,  30  S.  Ct.  672,  affirming  judg- 
ment in  Emigh  v.  Earling  (1908),  115  N. 
W.  128,  134  Wis.  565,  following  Citizens' 
Cent.  Nat.  Bank  r'.  .Appleton.  216  U.  S. 
196.  54   L.   Ed.  44:].  ;iO   S.   Ct.  364. 

Contract  of  guaranty. — See  ante.  "Con- 
tracts of  Guaranty,"  Til.  B.  7,  c.  (2). 

80-47b.  Relief  afforded.  —  Rankin  :•. 
Emigh.  218  U.  S.  27.  54  L.  Ed.  915,  30  S.  Ct. 
672. 

96-3a.  Borrow  money. — Rankin  v.  Citv 
Nat.  Bank,  208  U.  S.  541.  52  L.  Ed.  610.  28 
S.  Ct.  346,  affirming  Cheney  v.  City  Xat. 
Bank,  141   Fed.  587,  75  C.  C.  A.  343. 


195 


97-104  BANKS  AND  BANKING.  Vol.  III. 

of  the  bank  on  which  an  assessment  is  soon  after  made  on  announcement  by  the 
comptroller  that  its  capital  stock  has  become  totally  impaired.^^ 

(b)  To  Bank  and  Stockholders.— StoclsholdeY  Purchasing  Stock  in  Re- 
liance upon  Report  of  Directors.— See  ante,  "In  General."  I\'.  B,  2,  a, 
(1),  (a). 

(2)  Of  Cashier  or  Other  Officer  and  His  Sureties — (a)  Sco/^e  of  Bond  and 
Liability  T/z^r^o;?.— Representation  That  Accounts  Examined,  etc.,  As 
Warranty. — An  official  certificate,  made  in  contemplation  of  the  renewal  of  a 
bank  cashier's  bond,  that,  just  prior  thereto,  his  books  and  accounts  "were  ex- 
amined and  found  correct  in  every  respect,  and  all  moneys  accounted  for,"  is 
not  a  warranty  of  the  correctness  of  such  accounts,  and  the  existence  of  dis- 
crepancies covered  up  by  false  entries  or  other  bookkeeping  devices  will  not 
avoid  the  new  bond  if  due  diligence  was  used  in  making  the  examination. ^^^^ 

(c)  Supervision  and  Notice  of  Default  or  Loss. — Liability  under  the  bond 
will  be  defeated  if.it  appears  that  the  loss  attributable  to  the  dishonesty  of  the 
employee  was  due  to  the  neglect  of  the  bank  to  make  the  examinations  required 
by  the  bond. 2'^'' 

Burden  of  Pleading  and  Proof. — The  burden  is  upon  the  surety,  in  an 
action  on  a  cashier's  bond,  to  plead  and  prove  a  breach  of  the  bank's  agree- 
ment that  monthly  examinations  of  the  cashier's  books  should  be  made,  since 
such  requirement,  if  a  condition  at  all,  was  a  condition  subsequent  rather  than 
precedent."''^ 

The  question  whether  reasonably  proper  monthly  examinations  of  the 
cashier's  books  were  made  is  for  the  jury,  in  an  action  on  his  bond,  where 
there  is  evidence  that  such  cashier  made  monthly  reports  which  v»^ere  regularly 
inspected  once  a  month  by  the  bank's  officers ;  that  the  embezzlements  which 
were  not  detected  by  such  inspection  were  concealed  by  false  entries  relating  to 
remittances  to  the  bank's  correspondents,  whereby  the  balances  in  such  corre- 
spondent banks  were  made  to  appear  much  larger  than  they  actually  were,  and 
that  the  officers  were  misled  by  the  bookkeeper's  innocent  use,  as  the  basis  for 
ledger  entries,  of  the  cashier's  falsified  slips,  purporting  to  show  the  cash  used 
to  buy  exchange  for  remittances. 2- ''  The  good  faith  of  the  bank  in  certifying, 
in  contemplation  of  a  renewal  of  the  cashier's  bond,  that  just  prior  thereto  his 
books  and  accounts  "were  examined  and  found  correct  in  every  respect,  and  all 
moneys  accounted  for,"  is  a  question  for  the  jury  in  an  action  on  the  new  bond, 
where  there  is  evidence  that  due  diligence  was  used  in  making  the  examination, 
although  it  failed  to  disclose  discrepancies  covered  up  by  false  entries  or  other 
bookkeeping  devices. 2*^*^ 

(3)  Enforcement. — Form  of  Action. — The  common-law  action  of  deceit 
does  not  lie  against  the  director  of  a  national  bank.  The  only  measure  of  their 
liability  is  laid  down  in  the  banking  laws,  but  if  the  pleading  in  an  action  in  a 
state  court  satisfy  the  test  of  liability  imposed  by  the  banking  laws,  the  action 

97-8a.  False  reports  to  comptroller.—  Nichols,  224  U.  S.  346.  .56  L.  Ed.  795,  32  S. 
Thomas  v.  Taylor,  224  U.  S.  73,  56  L.  Ed.        Ct.  475. 


673,  32  S.  Ct.  403. 


104-28a.  Burden  of  proving  breach. — Ti- 


The   fact   that    such    statement    was    not  tie  Guaranty,  etc..  Co.  v.  Nichols,  224"u.  S. 

voluntary,    does    not   relieve    the    directors  345.  55  l.  Ed.  795,  32  S.  Ct.  475. 

from   liability.      Ihomas  z'.    1  aylor.  224  U.  ,_.  __,        •,,,,    ^,                     ■       .                 , 

S    '~3    56  L    Ed    673    S''  S    Ct    403  104-28b.      Whether     examination     made 

^  lOO-l'sa.    Representations  as  to  examina-  ^1"^^*^°"    ^'^^   ^Z^/^^^^^l  .PTaT^^\  1'.' 

tion  of  accounts,  as  warranty.-Title  Guar-  ^.''■J'-^'''}'''^^'  ^-^  U.  S.  346.  56  L.  Ed.  795, 

anty,  etc..  Co.  z:  Nichols,  224  U.  S.  346.  56  "^"  ^-  ^^-  ^'^• 

L.  Ed.  795,  32  S.  Ct.  475.  104-28C.    Question  of  good  faith  for  jury. 

102-25a.     Supervision  and  notice  of  de-  —Title  Guaranty,  etc..  Co.  r.  Nichols,  224 

fault  or  loss.— Title  Guaranty,  etc.,  Co.  z:  U.  S.  346.  56  L.  Ed.  795.  32  S.  Ct.  475. 

196 


Vol.  III. 


BANKS  AND  BANKING. 


106-111 


will  be  sustained  without  regard  to  the  form  of  the  pleadings  or  the  designation 
of  the  ■action.^^'^ 

b.  Criminal  Liability — (3)  Bmbezdement,  Misappropriation  or  Misapplica- 
tion of  Funds — (b)  Misappropriation  or  Misapplication  of  Funds — aa.  Ele- 
ments of  Offense  and  Indictment  Therefor. — To  constitute  a  misapplication 
by  an'  officer  of  a  national  bank,  of  its  funds,  under  §  520^),  U.  S.  Rev.  Stat., 
there  must  be  a  conversion  by  the  party  charged  of  the  funds  of  the  bank  to 
his  own  use  or  the  use  of  some  person  other  than  the  bank.^*  There  is  a  dis- 
tinction between  embezzlement  and  a  willful  misapplication  of  the  funds.  There 
may  be  a  willful  misapplication  of  the  funds,  even  though  the  officer  have  not 
the  actual  possession  of  them.  He  may  have  such  control  and  power  of  man- 
agement "as  to  direct  an  application  of  the  funds  in  such  manner  and  under 
such  circumstances  as  to  constitute  an  offense."-* ^^  The  indictment  must  con- 
tain an  averment  of  the  conversion  ^'^^  but  need  not  charge  a  conversion  bv  the 


106-33a.  Form  of  action. — Thomas  v. 
Taylor,  224  U.  S.  73,  56  L.  Ed.  673,  32  S. 
Ct.  403.  See,  also,  post,  FRAUD  AND 
DECEIT. 

Pleading — Designation  of  action. — The 
tacts  pleaded  in  an  action  for  attesting  as 
directors  a  false  report  of  the  condition  of 
a  national  bank,  in  reliance  upon  which 
plaintifif  was  induced  to  purchase  some  of 
its  stock,  determine  the  rights  of  plaintiff, 
so  that  a  recovery  is  not  prevented  by  the 
designation  of  the  action  as  one  for  de- 
ceit, instead  of  as  one  arising  under  the 
national  bank  act.  Thomas  t.  Taylor,  224 
U.  S.  73,  56  L.  Ed.  073,  32  .S.  Ct.  403. 

Change  of  theory  of  case  on  appeal. — 
Directors  of  a  national  bank,  in  an  action 
against  them  for  attesting  a  false  report 
of  the  condition  of  the  bank,  in  reliance 
upon  which  plaintiff  purchased  stock  of  the 
bank,  can  not  urge  on  appeal  that  if  the 
action  in  the  trial  court  had  not  been  based 
on  deceit,  instead  of  on  a  violation  of  the 
National  Bank  Act,  they  would  have  been 
able  to  make  a  showing  under  which  they 
would  have  been  acquitted  of  knowingly 
violating  such  act,  where  the  action  was 
tried  on  the  theorj'  that,  to  maintain  an 
action  for  deceit,  knowledge  of  the  falsity 
of  the  representations  must  be  shown,  and 
their  defense  was  that  the  requirements  of 
the  National  Bank  Act  had  not  been  vio- 
lated. Thomas  v.  Taylor,  224  U.  S.  73,  56 
L.  Ed.  673,  32  S.  Ct.  403. 

109-44.  United  States  v.  Heinze,  218  U. 
S.  532,  54  L.  Ed.  1139,  31  S.  Ct.  98.  follow- 
ing United  States  v.  Britton,  107  U.  S.  655, 
27  L.  Ed.  520,  2  S.  Ct.  512. 

"In  United  States  v.  Britton,  107  U.  S. 
655,  27  L.  Ed.  520,  2  S.  Ct.  512,  it  was  de- 
cided that  the  'misapplication  made  an  of- 
fense by  this  statute  means  a  misapplica- 
tion for  the  use,  benefit,  or  gain  of  the 
party  charged,'  or  someone  other  than  the 
association.  And  further,  that  to  consti- 
tute the  offense  'there  m.ust  be  a  conver- 
sion to  his  own  use  or  the  use  of  someone 
else  of  the  moneys  and  funds  of  the  asso- 
ciation by    the    party  charged."  ''      United 


States  V.  Heinze,  218  U.  S.  532,  54  L.  Ed. 
1139,  31  S.  Ct.  98. 

"The  case  of  United  States  z'.  Britton, 
107  U.  S.  655,  27  L.  Ed.  520,  2  S.  Ct.  512, 
was  referred  to  in  United  States  v.  North- 
way,  120  U.  S.  327,  30  L.  Ed.  664,  7  S.  Ct. 
580,  as  holding  that  it  was  of  the  essence 
of  the  criminality  of  the  misapplication 
that  there  should  be  a  conversion  of  the 
funds  to  the  use  of  the  defendant  or  of 
some  person  other  than  the  association, 
with  intent  to  injure  or  defraud  the  asso- 
ciation." United  States  z'.  Heinze,  218  U.  S. 
532,  54  L.   Ed.   1139,  31   S.   Ct.  98. 

Ill -48a.  Embezzlement  and  willful  mis- 
application distinguished. — United  States 
z'.  Heinze,  218  U.  S.  532,  54  L.  Ed.  1139,  31 
S.  Ct.  98,  following  United  States  z'.  Brit- 
ton, 107  U.  S.  655,  27  L.  Ed.  520,  2  S.  Ct. 
512.  and  United  States  v.  North  way,  120 
U.  S.  327,  30  L.  Ed.  664,  7  S.  Ct.  580. 

lll-48b.  Averment  of  conversion. — 
United  States  z:  Heinze,  218  U.  S.  532,  54 
L.  Ed.  1139,  31  S.  Ct.  98,  following  Coffin 
v.  United  States,  156  U.  S.  432,  39  L.  Ed. 
481,   15  S.  Ct.  394. 

In  United  Slates  v.  Britton,  107  U.  S. 
655,  27  L.  Ed.  520,  2  S.  Ct.  512,  "a  count  in 
an  indictment  was  sustained  which  charged 
the  misapplication  to  have  been  made  by 
causing  funds  to  be  paid  out  to  the  use 
and  l)enefit  of  the  officer  indicted  in  an  un- 
authorized and  unlawful  purchase  of  the 
shares  of  stock  of  certain  stock  companies, 
without  the  knowledge  and  consent  of  the 
association,  and  with  intent  to  injure  it." 
United  States  f.  Heinze,  218  U.  S.  532,  54 
L.  Ed.  1139,  31  S.  Ct.    98. 

In  Coffin  V.  United  States.  156  U.  S.  432, 

39  L.  Ed.  481,  15  S.  Ct.  394.  an  indictment 
was  held  sufficient  as  it  described  the  con- 
version to  consist  of  paying  money  out  of 
the  funds  of  the  bank  to  a  designated  per- 
son when  that  person  was  not  entitled  to 
take  the  funds,  and  that,  owing  to  the  in- 
solvency of  such  person,  the  money  was 
lost  to  the  bank.  United  States  z:  Heinze. 
218  U.  S.  532,  54  L.  Ed.  1139,  31  S.  Ct.  98. 

Tn  Coffin  v.  United  States,  162  U.  S.  664. 

40  L.  Ed.    1109,  16  S.  Ct.    943,    the    willful 


111-119 


BANKS  AND  BANKING. 


Vol.  III. 


defendant  of  the  bank's  funds  to  his  own  use,  if  it  does  allege  a  conversion  by 
him,  as  the  conversion  may  be  to  the  use  of  another  than  the  bank.^s'=  The  in- 
tent to  injure  and  defraud  must  be  averred  but  ho  averment  that  the  defendant 
procured  the  discount  by  the  use  of  fraudulent  means,  or  that  he  was  insolvent 
or  knew  himself  to  be  so,  is  necessary. ^^"^ 

bb.  Application  of  Rules  to  Specific  Acts. — See  note  51. 

(4)  Making  False  Entries— {c)  In  Reports.— The  intention  to  deceive  is 
essential  to  constitute  a  violation  of  §  5209,  U.  S.  Rev.  Stat.,  forbidding  the 
making  of  false  entries  in  a  report  to  an  agent  appointed  to  examine  the  afifairs 
of  a  bank.'^"''     Intent  to  injure  a  bank  by  a  false  report  to  the  comptroller  of 


misapplication  was  alleged  to  have  been 
done  "'with  intent  to  convert  the  same  to 
the  use  of  the  Indianapolis  Cabinet  Com- 
pany," whose  check  was  paid,  though  it 
had  no  funds  in  the  bank.  And  such  aver- 
ment, it  was  said,  stated  the  misapplication 
and  actual  conversion  of  money  by  the 
methods  described;  that  is  to  say,  by  pay- 
ing it  out  of  the  funds  of  the  bank  to  a 
designated  person  when  that  person  was 
not  entitled  to  take  the  funds,  and  that, 
owing  to  the  insolvency  of  such  person, 
the  money  was  lost  to  the  bank.  United 
States  i:  Heinze,  218  U.  S.  532,  54  L.  Ed. 
1139,  31  S.  Ct.  98. 

111-48C.  United  States  r.  Heinze,  218 
U.  S.  532,  54  L.  Ed.  1139,  31  S.  Ct.  98. 

Discount  of  unsecured  note. — An  indict- 
ment for  the  willful  misapplication  of 
funds  of  a  national  bank  by  an  officer,  with 
intent  to  defraud,  in  violation  of  Rev.  St. 
U.  8.,  §  5209  (U.  S.  Comp.  St.  1901,  p. 
3497),  by  receiving  and  discounting  with 
its  money  as  absolutely  unsecured  prom- 
issory note  of  a  named  partnership,  where- 
by the  proceeds  of  the  discount  of  the  note 
were  wholly  lost  to  the  bank,  need  not 
charge  a  conversion  by  the  recipient  of 
the  proceeds  of  the  discount,  provided  it 
does  allege  a  conversion  by  such  officer. 
The  conversion  may  be  to  the  use  of  ei- 
ther. United  States  v.  Heinze,  218  U.  S. 
532,  54  L.  Ed.  1139,  31   S.  Ct.  98. 

A  conversion  is  charged  by  the  allega- 
tion of  an  indictment  for  willful  misappli- 
cation of  the  funds  of  a  national  bank,  in 
violation  of  U.  S.  Rev.  Stat.,  §  5209,  U.  S. 
Comp.  Stat.  1901,  p.  3497,  that  defendant, 
being  president  of  the  bank,  and  having 
control  of  its  funds,  with  intent  to  injure 
and  defraud,  received  and  discounted  a 
promissory  note  for  a  specified  sum,  for 
his  use.  benefit,  and  advantage,  knowing 
that  the  note  was  wholly  unsecured, 
whereby  the  proceeds  of  the  discount  were 
wholly  lost  to  the  bank.  United  States  v. 
Heinze,  218  U.  S.  532,  54  L.  Ed.  1139.  31  S. 
Ct.  98. 

lll-48d.  Averment  of  intent  to  injure 
and  defraud. — In  Evans  v.  United  States, 
153  U.  S.  584.  38  L.  Ed.  830,  14  S.  Ct.  934, 
where  the  sufficiency  of  an  indictment  was 


considered,  "the  misapplication  was  de- 
scribed to  be  the  unlawful  receiving  and 
discounting  with  the  money  and  funds  of 
the  bank,  with  intent  to  defraud  the  bank, 
and  for  the  use,  etc.,  of  Evans,  a  note  made 
l;y  Evans,  which,  when  so  discounted,  'was 
not  then  and  there  well  secured,'  which  he 
and  the  cashier  well  knew,  and  which  note 
v>-as  never  paid,  by  reason  of  which  the 
bank  suffered  loss  in  that  amount,  with  in- 
tent in  Evans  to  injure  and  defraud  the 
bank.  It  was  said:  *  *  *  'Xo  averment 
was  necessary  that  such  discount  was  pro- 
cured by  fraudulent  means,  since  the  of- 
fense consists  not  in  the  use  of  fraudu- 
lent means,  but  in  the  discount  of  a  note 
which  both  parties  knew  to  be  unsecured, 
with  the  intent  thereby  to  defraud  the 
l)ank.  An  averment  that  Evans  was 
*  *  *  insolvent  or  knew  himself  to  be 
so  was  also  unnecessary,  in  view  of  the  al- 
legation that  Evans  knew  that  the  note  was 
not  secured,  and  procured  the  same  to  be 
discounted  with  intent  to  defraud  the 
bank.'  It  was  said  that  weight  must 
be  given  to  the  words  knowingly,  wilfully, 
and  vmlawfully  and  fraudulently,  and  'to 
the  general  allegation  of  an  attempt  to  de- 
fraud.' "  United  States  v.  Heinze,  218  U. 
S.  532,  54  L.  Ed.  1139,  1144,  31  S.  Ct.  98. 

112-51.  Discounting  unsecured  paper. — 
While  the  mere  discount  of  an  unsecured 
note,  even  if  the  maker  and  the  officer 
making  the  discount  knew  it  was  not  well 
secured,  would  not  necessarily  be  a  crime, 
if  the  maker  believed  that  he  would  be 
able  to  provide  for  it  at  maturity,  yet,  if 
his  original  intent  was  to  procure  the  note 
to  be  discounted  in  order  to  defraud  the 
bank,  every  element  of  criminality  is  pres- 
gj^^  *  *  *_  fiig  criminality  really  de- 
pends upon  the  question  whether  there 
was,  at  the  time  of  the  discount,  a  deliber- 
ate purpose  on  the  part  of  the  defendant 
to  defraud  the  bank  of  the  amount.  United 
States  V.  Heinze,  218  U.  S.  532.  54  L.  Ed. 
1139,  31  S.  Ct.  98,  approving  Evans 
z..  United  States,  153  U.  S.  584,  38  L.  Ed. 
830,  14  S.  Ct.  934. 

119-77a.  Intention  to  deceive. — United 
States  v.  Corbett,  215  U.  S.  233,  54  L.  Ed. 
173,  30  S.  Ct.  81. 


198 


Vol.  III.  BANKS  AND  BANKING.  119-164 

the  currency  is  not  negatived  as  matter  of  law  by  the  fact  that  the  report  showed 
the  bank  to  be  in  better  condition  than  it  really  was.'^'^'' 

The  comptroller  of  the  currency  is  an  agent  within  the  provisions  of 
Rev.  Stat.  U.  S.,  §  5209  (U.  S.  Comp.  St.  1901,  p.  3497),  that  every  oflficer  of 
a  national  bank  who  makes  any  false  entry  in  a  report  to  any  agent  appointed  to 
examine  the  affairs  of  such  association  shall  be  guilty  of  a  misdemeanor,  and  it 
is  immaterial  that  Rev.  Stat.  §  5240  (U.  S.  Comp.  St.  1901,  p.  3516),  confers 
power  upon  him  to  appoint  suitable  agents  to  examine  the  affairs  of  such 
banks.'^"^ 

V.  Stock  and  Stockholders. 

E.  Rights  and  Liabilities  of  Stockholders — 2.  Liabilities — b.  Extraordi- 
nary Statutory  Liability — (5)  As  Affected  by  Transfer  of  Stock — (a)  In  Gen- 
eral.— \\'here  one  permits  his  name  to  be  registered  on  the  books  of  the  bank 
as  a  shareholder,  or  where  he  fails  to  obtain  a  transfer  of  the  shares  to  another 
name,  although  he  has  in  fact  parted  with  his  stock,  such  shareholder  remains 
liable  to  the  creditors.-^*^^  Where  the  shareholder  has  performed  every  duty 
which  the  law  imposes  upon  him  in  order  to  secure  a  transfer  of  the  stock,  the 
fact  that  it  is  not  transferred  on  the  register  of  the  bank  does  not  continue  his 
liability  as  such  shareholder. ^"^ 

(c)  Transferee's  Liability. — One  who  was  notified  that  shares  in  a  national 
bank  had  been  transferred  in  his  name,  although  he  had  in  fact  no  interest 
therein,  and  who  indorsed  the  certificates  in  blank,  but  took  no  steps  to  have 
the  stock  transferred  to  the  name  of  the  true  owner,  can  not  avoid  liability  for 
an  assessment  thereon  made  by  the  comptroller  to  meet  the  debts  of  the  bank 
after  its  insolvency."^  ^^ 

(5a)  Nonassenting  Stockholder  to  Extension  of  Bank's  Corporate  Existence. 
— Shareholders  in  a  national  bank  which  has  extended  its  corporate  existence, 
conformably  to  Act  July  12,  1882,  c.  200,  22  Stat.  162  (U.  S.  Comp.  St.  1901, 
p.  3457),  ceased  to  be  such  upon  the  expiration  of  the  original  term  of  the 
bank's  corporate  life,  and  therefore  could  not  thereafter  be  chargeable  with 
personal  liability  for  its  debt,  where  they  took  the  steps  required  of  nonassent- 
ing stockholders  in  §  5  of  that  act  by  giving  notice  of  a  desire  to  withdraw,  and 
by  appointing  an  appraiser  to  obtain  a  valuation  of  their  sh'ares."^^^ 

3.  Rights  of  Action — a.  Poicer  to  Enjoin  Unnnse  and  Ultra  Vires  Act. — • 
Quaere,  the  right  of  a  stockholder  to  prevent  by  injunction  acts  beyond  the 
corporate  powers  of  the  bank  or  commercially  unwise. ^'^ 

b.  Recoverx  of  Damages  Resulting  from  Unnnse  or  Ultra  Vires  Acts. — Con- 
struction of  New  Bank  Building. — A  stockholder  in  a  national  bank  can  not 
recover  damages  or  make  any  claim  against  the  bank  for  tearing  down  its  old 
building  and  constructing  a  new  one  during  the  pendency  of  an  action  by  him 

119-77b.  United  States  t.  Corbett,  215  U.  148-71a.      Transferee's      liability.— Judg- 

S.  233,  .54  L.  Ed.  173,  30  S.  Ct.  81.  ment  155  F.  107,  S3  C.  C.  .\.  567,  affirmed. 

119-77C.    Comptroller   as   agent. — United  Kenyon  v.  Fowler,  215  U.  S.  593,  54  L.  Ed. 

States  V.  Corbett,  215  U.  S.  233.  54  L.  Ed.  341,  30  S.  Ct.  409. 
173,  30  S.  Ct_.  81    reversing  162  Fed.  687.  i49-73a.    Nonassenting    stockholders    to 

142-56a.  Liability  as  affected  by  transfer  ^^^^^^{^.^  of  bank's  corporate  existence.— 

of  stock— Apsey  z;.  Kimball,  221  US.  ol4,  ^  ,,    Kimball.  221   U.  S.  514.  55  L.  Ed. 

55  L.  Ed.  834    31  S.  Ct.  690    698,  followmg  ^^    ^^   g^   ^^    gg.    affirming  judgments  in 

National  Bank  v.  Case    99  U.  S.  628    2oL.  g^^^^  „^,     Whittemore.    85    X.     E.   91.     199 

Ed.  448;  Matteson  v    Dent,  176  U.  S.  o21.  ^         g^   ^^^  Kimball  v.  .\psev.  164  F.  830, 

44  L.  Ed.  571,  20  S.  Ct.  419.  ^r.  c    C    \    6^4 

142-57a.  Apsev  '■.  Kimball,  221  U.  S.  514,  "^^  ^-  ^-  -^-  ''"'"*• 
55  L    Ed    834    31  S.  Ct.  695.  698,  following  164-27a.  Enjoining  ultra  vires  or  unwise 

Whitney  z:  Butler,  118  U.  S.  655,  30  L.  Ed.  acts.— Wingert  ::   First  Nat.   Bank.  223  U. 

266,  7  S.  Ct.  61:  Earle  z:  Carson,  188  U.  S.  S.  670,  56  L.  Ed.  605.  32  S.  Ct.  391. 
42,  47  L.  Ed.  373,  23  S.  Ct.  254. 

199 


164-195  BARRATRY.  Vol.  IIL 

to  restrain  it  from  doing  so,  whether  such  action  by  the  bank  was  lawful  or 
unlawful. 2' '^ 

VI,  Taxation. 

See  post,  Revenue  Laws  ;   Taxation. 

Vin,  Insolvency,  Assignment  and  Receivership. 

F.  Receivers — 3.  Title  to  Assets  and  Recovery  Thereof. — With  Re- 
spect to  the  Title  to  Its  Assets. — A  receiver  of  a  bank  stands  in  no  better 
position  than  the  bank  while  it  was  a  going  concern. ^ 2b 

I.  Set-Off. — Xo  right  of  equitable  set-off  in  favor  of  a  bank  against  the  re- 
ceiver of  its  insolvent  correspondent  arises  out  of  the  voluntary  payment  by 
the  former  bank  of  an  overdraft  of  its  correspondent,  in  reliance  upon  certain 
notes  sent  for  discount  and  credit,  after  receiving  no  response  to  its  notification 
that  such  notes  would  not  be  discounted,  but  w^ould  be  held  as  collateral,  and 
that  credits  should  either  be  transferred  from  other  banks  or  currency  shipped.^*^ 

BARRATRY. — See  the  title  Barratry,  vol.  3.  p.  201,  and  references  there 
given. 

164-27b.       Construction     of     new     bank  damages.     Milkman  v.  Ordway,  106  Mass. 

building.— Wingert  r'.  First  Xat.  Bank.  223  232,  253;  Lewis  r.  North  Kingston,  16  R.  I. 

U.  S.  670,  56  L.  Ed.  605,  32  S.  Ct.  391.  15,    27    Am.    St.    Rep.    724,    11    Atl.    173." 

"No  doubt,  after  the  filing  of  a  bill  for  Wingert  z:  First  Nat.  Bank,  223  U.  S.  670, 

an  injunction   defendants  proceed  at  their  56  L.  Ed.  605,  32  S.  Ct.  391. 
peril,  even  though  no  injunction  is  issued;  184-12b.      Title     to    assets. — Rankin     v. 

and,    if    they    go    on    to    inflict  an    action-  City  Nat.  Bank.  208  U.  S.  541.  546,  52  L.  Ed. 

able  wrong  upon  the  plaintiff,  will  not  be  610.  28  S.  Ct.  346.     See  post,  RECEIVERS, 
allowed   to    defeat    the   jurisdiction  of   the  195-48a.     Set-off. — Hanover    Nat.     Bank 

court  by  their  own  act.     In  such  a  case  the  v.  Suddath,  No.  2,  215  U.  S.  122,  54  L.  Ed. 

bill  will  be  retained  for  the  assessment  of  120,  30  S.  Ct.  63. 

200 


Vol.  III. 


BEQUEST. 


208 


BASTARDY. 
III.  Legitimation,  201. 

B.  How   Legitimation   Is   AlTected,  201. 
2.  By  Statute.  201. 

a.  Construction  of  Statutes,  201. 

CROSS   REFERENCES. 
See  the  title  Bastardy,  vol.  3,  p.  204,  and  references  there  given. 

III.  Legitimation. 

B.  How  Legitimation  Is  Affected — 2.  By  Statute — a.  Construction  of 
Statutes. — The  federal  courts  will  adopt  the  construction  of  the  Hawaiian  stat- 
ute legitimatizing  children  born  out  of  wedlock  upon  the  marriage  of  their 
parents,  as  not  applicable  to  the  offspring  of  adulterous  intercom  se.-^^ 

BENEFICIAL  AND  BENEVOLENT  ASSOCIATIONS.— See  the  title  Ben- 
eficial AXD  BexevolExt  Associatioxs,  vol.  3,  p.  211.  and  references  there 
given. 

BENEFICIARIES. — As  to  beneficiaries  of  school  fund,  see  post,  Public 
Laxds. 

BEQUEST.— See  post,  \\'ills. 


208-23a.     Construction   of   statute. — The 

courts  of  Hawaii  liaving,  prior  to  the  an- 
nexation, construed  the  statute  of  'Ms.y  24, 
1866,  legitimatizing  children  born  out  of 
wedlock  by  the  subsequent  marriage  of 
the  parents  as  not  applicable  to  the  off- 
spring of  adulterous  intercourse,  and  the 
organizing  act  of  the  Hawaii  territory 
having  continued  the  laws  of  Hawaii  not 
inconsistent  with  the  constitution  or  laws 
of  the  United  States,  this  Court  adopts 
the  construction  of  the  Hawiian  statute 
given  by  the  courts  of  that  countrjr.  Kea- 
ioha  f.  Castle,  210  U.  S.  149.  52  L.  Ed.  998, 
28  S.  Ct.  684. 

While  in   different  jurisdictions   statutes 
legitimatizing   children    born    out    of   wed- 


lock by  the  subsequent  marriage  of  the 
parents  have  been  differently  construed  as 
to  the  application  thereof  to  the  offspring 
of  adulterous  intercourse,  in  construing 
such  a  statute  of  a  territory  the  federal 
supreme  court  will  lean  towards  the  inter- 
pretation of  the  local  court.  Kealoha  v. 
Castle.  210  U.  S.  149,  52  L.  Ed.  998,  2S  S. 
Ct.  684. 

The  construction  of  a  statute,  affixed 
thereto  for  many  years  before  territory  is 
acquired  by  the  United  States,  should  be 
considered  as  written  into  the  law  itself. 
Kealoha  v.  Castle,  210  U.  S.  149,  52  L.  Ed. 
998,  28  S.  Ct.  684.  See,  generally,  post, 
STATUTES. 


201 


216-223 


BILL  OF  PARTICULARS. 


Vol.  III. 


II. 


III. 


BEST  AND  SECONDARY  EVIDENCE. 

Rules  as  to  Best  Evidence,  202. 
C.  Application  of  the  Rule,  202. 
1.  Writings  Generally,  202. 

Secondary  Evidence,  202. 
A.  General  Statement,  202. 

CROSS   REFERENCES. 

See  the  title  Best  and  Secondary  Evidence,  vol.  3,  p.  214,  and  references 
there  given. 

In  addition,  see  post.  Documentary  Evidence;   Parol  Evidence. 

II.  Rules  as  to  Best  Evidence. 
C.  Application  of  the  Rule — 1.    Writings  Generally. — Where  the  object- 
ing party  gives  notice  that  the  production  of  the  originals  themselves  will  be  in- 
sisted upon,  copies  can  not  be  used.^^^ 

III.  Secondary  Evidence. 

A.  General  Statement. — See  note  26.  Although  the  testimony  offered  may 

not  be  the  best  evidence,    it    can    not    be  disregarded  if  offered  and  admitted 
-without   objection.^ ^^ 


BETWEEN.— See  note  1. 

BEYOND  A  REASONABLE  DOUBT.— See  post,  Reasonable  Doubt. 

BIGAMY  AND  POLYGAMY.— See  the  title  Bigamy  and  Polygamy,  vol.  3, 
p.  225,  and  references  there  given. 

BILL  OF  EXCEPTIONS.— See  post,  Exceptions,  Bill  of,  and  Statement 
oE  Facts  on  Appeal. 

BILL  OF  EXCHANGE.— See  post.  Bills,  Notes  and  Checks. 

BILL  OF  LADING.— See  the  title  Bill  oe  Lading,,  vol.  3,  p.  232,  and 
references  there  given. 

BILL  OF  PARTICULARS.— See  the  title  Bill  oe  Particulars,  vol.  3,  p. 
243,  and  relerences  there  given. 


216-lla.  Necessity  for  production  of 
originals. — Under  par.  4277,  §  399,  Code 
Civ.  Proc,  Oklahoma  of  1893,  the  original 
books  of  entry  must  be  produced  on  the 
trial;  their  production  before  the  notary 
taking  the  deposition  of  the  witness  who 
kept  the  books  is  not  sufficient,  and  copies 
made  by  the  notary  can  not  be  used  where 
the  objecting  party  gives  notice  that  the 
production  of  the  books  themselves  will 
lae  insisted  upon.  Drum-Flato  Comm.  Co. 
V.  Edmisson,  208  U.  S.  534,  52  L.  Ed.  606, 
28  S.  Ct.  367.  And  see  post,  DOCU- 
MENTARY EVIDENCE. 

218-26.  Non-production  of  originals.^ — 
After  showing  that  an  inventory  of  a  stock 
of  goods  destroyed  by  fire  was  taken  and 
accidentally  lost,  parol  testimony  of  what 
the  inventory  showed  the  goods  to  be 
worth  is  competent  as  to  the  value  of  the 
stock.  Liverpool,  etc.,  Ins.  Co.  v.  Kearney, 
46    S.  W.  414,   2  Ind.    T.  67,  affirmed  94    F. 


314,  36  C.  C.  A.  265,  affirmed  in  Liverpool, 
etc.,  Ins.  Co.  V.  Kearney,  180  U.  S.  132,  45 
L.  Ed.  460,  21  S.  Ct.  326. 

222-31a.  Effect  of  failure  to  object. — 
Kansas  City,  etc.,  R.  Co.  v.  Albers  Comm. 
Co.,  223  U.  S.  573,  56  L.  Ed.  556,  32  S.  Ct. 
316.  See,  also,  Daiz  v.  United  States,  223 
U.  S.  442,  56  L.  Ed.  500,  32  S.  Ct.  250. 

223-1.  Computation  of  time. — In  the 
provisions  of  the  organic  act  that  "all 
franchises  granted  by  the  Hawaiian  gov- 
ernment in  conformity  with  the  laws  of 
Hawaii,  between  the  seventh  day  of  July, 
eighteen  hundred  and  ninety-eight,  and 
the  twenty-eighth  day  of  September, 
eighteen  hundred  and  ninety-nine,  are 
hereby  ratified  and  confirmed;"  July  7  was 
not  excluded  from  the  ratification  by  the 
word  between.  Honolulu,  etc.,  land  Co. 
V.  Wilder,  211  U.  S.  137,  142,  53  L.  Ed.  121, 
29   S.   Ct.  44.     See   post,  TIME. 


202 


Vol.  III.  BILL  OF  SALE.  250-252 


BILL  OF  REVIEW. 

IV.  Filing  BiU,  203. 

A.  Performance  of  Decree  as  Prerequisite,  203. 
C.  Statute  of  Limitations  and  Laches,  203. 

CROSS  REFERENCES. 

See  the  title  BilIv  of  Review,  vol.  3,  p.  244,  and  references  there  given. 

IV.  Filing  Bill. 

A.  Performance  of  Decree  as  Prerequisite. — Permitting  a  bill  of  review- 
to  be  filed  without  a  previous  payment  of  the  moneys  awarded  by  the  decree 
sought  to  be  reviewed  is  not  an  abuse  of  discretion,  where  leave  to  file  is  con- 
ditional upon  the  furnishing  of  an  indemnity  bond,  which  is  thereafter  ex- 
ecuted.'^'^* 

C,    Statute  of  Limitations  and  Laches. — See  note  50. 

BILL  OF  REVIVOR. — See  ante,  Abatement,  Revival  and  Survival,  p.  I. 
BILL  OF  RIGHTS. — See  post,  Constitutional  Law  ;  Due  Process  of  Law. 
BILL  OF  SALE. — See  post.  Mortgages  and  Deeds  of  Trust  ;    Sales. 

250-33a.    Performance    of  decree  as   pre-  counted  in    applying    the  two    years'    lim- 

requisite. — Frsenkl  z'.  Cerecedo  Hermanos,  itation  for  filing  such  bill,  fixed  by  anal- 

216  U.  S.  295,  54  L,  Ed.  486,  30  S.  Ct.  322.  ogy   to   the   time    allowed    by   law    for   an 

252-50.     Limitations    and    Laches. — The  appeal     to     the     federal     supreme     court, 

time  which  elapsed  between  the  tendering  Frsenkl  v.   Cerecedo   Hermanos,  216   U.   S. 

of  a   bill  of  review   to  the    federal    district  295,  54  L.  Ed.  486,  30  S.  Ct.  322.     See  post, 

court    for  Porto    Rico  for    filing,  and    the  LIMITATION  OF  ACTIONS  AND  AD- 

permission    given    to    file,    should    not    be  VERSE  POSSESSION. 

203 


276-350  BILLS,  NOTES  AXD  CHECKS.  Vol.  III. 


BILLS,  NOTES  AND  CHECKS. 

II.  Form  and  Requisites,  204. 

1.  Delivery,  204. 

III.  Consideration,  204. 

D.  Legality  of  Consideration,  204. 

2.  What  Contracts  Are  Invalid,  204. 

g.  Abandonment  of  Contest  of  Right  to  Indian  Allotment,  204. 

XII.  Payment  and  Discharge,  204. 
A.  Payment,  204. 

9.  Recovery  Back  of  Payments,  204. 
b.  Payment  of  Forged  Paper,  204. 

»(1)   Where  Payor's  Own  Name  Is  Forged,  204. 

CROSS  REFERENCES. 

See  the  title  Bills,  Notks  axd  Ciikcks.  vol.  3,  p.  257,  and  references  there 
given. 

II.  Form  and  Requisites. 

1.  Delivery. — Delivery  is  essential  to  the  validity  of  a  note,  and  is  insufficient 
if   surreptitiously  obtained. ^'^ 

III.   Consideration. 

D.  Legality  of  Consideration — 2.  \\'hat  Contracts  Are  Invalid — g. 
Abandonment  of  Contest  of  Right  to  Indian  Allotment. — The  abandonment  of 
a  bona  fide  contest  between  two  Indians  before  the  commission  to  the  Five 
Civilized  Tribes  as  to  the  right  to  an  allotment,  arising  from  a  claim  based 
upon  selection  by  the  contestee  and  upon  occupancy  and  improvements  by  the 
contestant,  is  a  lawful  consideration  for  a  promissory  note  given  by  the  former 
to  the  latter.ssa 

XII.  Payment  and  Discharge. 
A.  Payment — 9.  Recovery  Back  of  Payments. — See  note  54. 

b.  Payment  of  Forged  Paper — (1)  Ulierc  Payor's  Ozvn  Name  Is  Forged. — • 
See  note  55. 

276-5?a,     Delivery — Surreptitious     deliv-  rule,  however,  to  tlie  government  and  its 

ery. — McKim  z'.  Elton,  4  Dall.  58,  1  L.  Ed.  duty  in  paying  out  the  millions  of  pension 

'■11.  claims,    which    are    yearly    discharged    by 

_  280-88a.     Abandonment     of     contest     of  means    of  checks,    would  require  it    to  be 

right    to    Indian     allotment. — Williams    :■.  assumed  that  that  was  known,  or  ought  to 

First  Xat.   Bank,  216  U.   S.  582,  54  L-   Ed.  have  been  known,  which  on  the  face  of  the 

625,   30   S.  Ct.  441,  affirming  95   P.   457,  20  situation    was    impossible    to    be    known, 

Okl.  274.  would   besides  wholly  disregard   the   rela- 

350-54.  As  to  recovery  back  of  money  rion  between  the  parties  and  would  also 
paid  on  pensions  where  the  payee's  name  require  that  to  be  assumed  which  the  ob- 
is forged,  see  post,  PEXSTOXS.  vious  dictates  of  common  sense  make  clear 

350-55.  Where  payor's  name  is  forged. —  could  not  be  truthfully  assumed."     United 

United  States  z'.  National  Exch.  Bank,  214  States  z'.   National   Exch.   Bank,  214  U.   S- 

U.  S.  302,  312,  53  L.  Ed.  1006,  29  S.  Ct.  665.  302,  317,  53  L.  Ed.  1006,  29  S.  Ct.  665. 

"The  exceptional  rule,  (referring  to  rule  "The  United   States  is  not  before  us  as 

laid  down  in  the  text),  as  to  certain  classes  the  acceptor  of  a  draft  drawn  upon  it  and 

of  commercial  paper  proceeds  upon  an  as-  charged   with   knowledge   of  the   signature 

sumption   of  knowledge  of  duty  to  know,  of  t!ie  drawer;  nor  was  it  a  bank  which  had 

naturally  arising  from  the  situation  of  the  paid    the    check    of    a    depositor    and    was 

parties,     entirely     consonant     with     their  charged  with   knowledge  of  the   signature 

capabilities,  and  in  accord  with  the  common  of  such  depositor.     The  forgery  here  was 

sense  view  of  their  relation.     To  apply  the  in  the  name  of  the  payee,  and  it  is  there- 

204 


Vol.  III. 


BOTTOMRY  AND  RESPONDENTIA. 


446 


BILL  TO  QUIET  TITLE.— See  post.  Ouikting  Title. 

BLASTING  POWDER.— See  post,  Powder. 

BLOCKADE.— See  the  title  Blockade,  vol.  3,  p.  364,  and  references  there 
given. 

BLOODSTAINS.— See  the  title  Bloodstains,  vol.  3.  p.  380,  and  references 
there  given. 

BOARD  OF  DIRECTORS.— See  ante.  Banks  and  Banking,  p.  184;  post,  Of- 
EicERS  and  Agents  oe  Private  Corporations. 

BOATS.— See  ante,  Admiralty,  p.  10;  post,  Maritime  Liens;  Salvage; 
Ships  and  Shipping. 

BONA  FIDE.— See  ante,  Bills.  Notes  and  Checks,  p.  204;  post,  Bonds; 
Chattel  Mortgages;  Coupons;  Judicial  Salens;  Municipal,  County,  State 
and  Federal  Securities  ;  Sales  ;  Vendor  and  Purchasii^r.  And  see  cross  ref- 
erences under  Good  Faith. 

BONDS.— See  the  title  Bonds,  vol.  3,  p.  382,  and  references  there  given. 

BOOKKEEPING.— See  note  la. 

BOOTY  OF  WAR.— See  note  lb. 

BOTTOMRY  AND  RESPONDENTIA.— See  tlfe  title  Bottomry  and  Re- 
spondentia, vol.  3.  p.  448,  and  references  there  given. 


fore  impossible,  as  it  was  in  the  case  of 
White  V.  The  Continental  Bank  and  in  the 
Leather  Manufacturers'  Bank  case,  to 
bring  this  cause  within  the  exceptional 
rule  without  holding  that  the  United 
States  was  charged  with  knowledge  of  the 
signature  of  the  vast  multitude  of  pers6ns 
who  are  entitled  under  the  law  to  receive 
pensions."  United  States  v.  National 
Exch.  Bank.  214  U.  S.  303,  317,  .53  L.  Ed. 
lOOG,  S9  S.  Ct    665. 

446-la.  Bookkeeping  as  interstate  com- 
merce.— The  uniform  system  of  account- 
ing prescribed  and  the  report  called  for 
are  such  as  it  is  within  the  power  of  the 
interstate  commission  to  require  under 
§  20  of  the  Act  of  June  29,  1906.  Nor  do 
the  requirements  exceed  the  constitu- 
tional authority  of  congress  to  pass  such 
a  law.  While  bookkeeping  is  not  inter- 
state commerce,  it  may  and  ought  to  show 
how  a  business  which,  in  part  at  least,  is 
interstate  commerce,  is  carried  on,  in  or- 
der that  the  commission,  charged  with  the 
duty  of  making  reasonable  rates  and  pro- 
hibiting unfair    and     unreasonable     ones. 


may  know  the  nature  and  extent  of  the 
business  of  the  corporation,  the  cost  of  its 
interstate  transactions  and  otherwise  to 
inform  itself  so  as  to  enable  it  to  properly 
regulate  the  matters  which  are  within  its 
authority.  Interstate  Commerce  Comm. 
V.  Goodrich  Trans.  Co.,  224  U.  S.  194,  216, 
56  L.  Ed.  729.  32  S.  Ct.  436.  See  post,  IN- 
TERSTATE AND  FOREIGN  COM- 
MERCE. 

446-lb.  "  'Booty  of  war'  was  distin- 
guished from  'a  seizure  for  immediate  use 
of  the  army.'  This  is  a  distinction  impor- 
tant to  observe,  and  is  recognized  explicitly 
or  implicitly  in  all  of  the  cases  and  refer- 
ences contained  in  the  able  argument  of 
counsel.  It  accommodates,  when  its  full 
range  is  properly  understood,  the  neces- 
sities of  the  conqueror  and  the  personal 
and  property  rights,  if  they  may  be  called 
such,  of  the  conquered.  And  there  is 
nothing  in  the  president's  proclamation  of 
July  13,  1898,  which  militates  against  it.'" 
Herrera  v.  United  States,  222  U.  S.  558. 
573.  56  L.  Ed.  316,  32  S.  Ct.  179.  See  post, 
PRIZE. 


205 


469-476  BOUNDARIES.  Vol.  III. 


BOUNDARIES. 

II.  Boundaries  of  Private  Property,  206. 

A.  Description  and  Indication  of  Boundaries,  206. 
3.  Conflicting  Elements,  206. 

a.  Relative  Importance  of  Conflicting  Elements,  206. 

(2)  Monuments,  206. 

(b)  Natural  Monuments,  206. 

5.  Waters  and  Watercourses  as  Boundaries,  206. 

b.  Navigable  Waters,  206. 

(3)  Boundaries  in  United  States,  206. 

(a)  State  Laws  Control,  206. 
aa.  In  General,  206. 

(d)  Tidal  Waters,  207. 

(c)  Nontidal  Waters,  207. 

aa.  Navigable  Nontidal  Waters,  207. 

c.  Nonnavigable  Waters,  207. 

III.  State  Boundaries,  207. 

A.  In  General,  207. 

D.  Boundaries  of  Particular  States,  207. 

E.  Waters  and  Watercourses  as  Boundaries,  208. 

1.  Rivers  as  Boundaries  between  States,  208. 

a.  In  General,  208. 
3.  Shifting  of  Shore  or  Channel,  208. 

F.  Construction  of  Description,  209. 

G.  Establishment  of  Territorial  Boundaries,  209. 

1.  By  the  States,  209. 

a.  Power  to   Settle — Compact — Convention,  209. 

(1)  In  General,  209. 

b.  Recognition  and  Acquiescence,  209. 

2.  By  Judicial  Proceedings,  210. 

b.  Mode  of  Proceedings,  210. 

(2)  Commission  of  Boundary,  210. 

(b)  Commissioners    to    Retrace,    Remark    and    Re-Es- 

tablish,  210. 
g.  Costs,  210. 

CROSS  REFERENCES. 

See  the  title  Boundarie;s,  vol.  3,  p.  461,  and  references  there  given. 

II.  Boundaries  of  Private  Property. 

A.  Description  and  Indication  of  Boundaries — 3.  Conflicting  Ele- 
ments— a.  Relative  Importance  of  Conflicting  Elements — (2)  Monuments — 
(b)  Natural  Monuments. — See  note  39. 

5.  Waters  and  Watercourses  as  Boundaries — b.  Navigable  Waters — (3) 
Boundaries  in  United  States — (a)  State  Lazvs  Control — aa.  In  General. — See 
note  80. 

469-39.    Monuments. — Monuments    in    a  476-80.     State     law     controls     navigable 

royal   grant  prevail   over  a  description   by  waters. — Government     grants      for      lands 

courses,   distances,  and  area  where  a  dis-  bordering   upon    navigable   waters   extend 

crepancy  exists.     Spreckels  v.  Brov,-n,  212  only  to   high-water  mark,   for  the   title   to 

U.  S.  208,  53  L.  Ed.  476,  29  S.  Ct.  256.  the    shore    and    to    the    lands    under    such 

206 


Vol.  III. 


BOUNDARIES. 


478-494 


(b)  Tidal  Waters. — See  note  85. 

(c)  Nontidal   Waters — aa.    Navigable  Nontidal   Waters. — See  note  89. 
c.  Nonnavigahle  Waters. — See  note  95. 

III.   State  Boundaries. 

A.  In  General.— "Boundary  means  sovereignty,  since  in  modern  times 
sovereignty  is  mainly  territorial,  unless  a  different  meaning  clearly  appears. "^''^ 

Concurrent  Jurisdiction. — Concurrent  jurisdiction,  properly  so  called,  on 
rivers  is  familiar  to  our  legislation,  and  means  jurisdiction  of  two  powers  over 
one  in  the  same  place.  There  is  no  reason  to  give  unusual  meaning  to  the 
phrase.  The  Columbia  river  is  made  the  common  boundary  to  Oregon  and 
Washington,  and  to  each  of  these  states  is  given  concurrent  jurisdiction  on  the 
water  to  that  river.  It  was  held  to  extend  to  civil  as  well  as  criminal  matters 
and  was  broadly  a  grant  of  jurisdiction  to  each  of  the  states.*^^''  Congress  can 
not  change  the  boundary  of  a  state  without  its  consent.'^^^  In  the  settlement 
of  boundary  disputes  between  states  the  court  should  apply  the  principles  of 
law  and  equity  to  the  facts  in  the  case,  in  such  manner  as  will  least  disturb 
private  rights  and  titles  regarded  as  settled  by  the  people  most  affected,  and 
the  lawmaking  bodies  of  the  adjoining  states  should  confirm  such  private  rights 
in  accordance  with  such  principles.^^'^ 

D.  Boundaries  of  Particular  States.— For  the  boundary  of  particular 
states,  see  note  72. 


waters  is  in  the  state  within  which  the 
waters  are  situated,  as  an  incident  of  sov- 
ereignty. Niles  V.  Cedar  Point  Club,  85  F. 
45,  29  C.  C.  A.  5,  affirmed  Xiles  v.  Cedar 
Point  Club,  175  U.  S.  300,  44  L.  Ed.  171,  20 
S.  Ct.  124. 

478-85.  Tidal  waters. — A  patent  by  the 
United  States  to  land  along  a  stream 
where  the  tide  ebbs  and  flows  conveys  to 
the  high-tide  line  along  the  shore.  Mo- 
bile Transp.  Co.  v.  City  of  Mobile,  30  So. 
645,  128  Ala.  335,  64  L.  R.  A.  333,  86  Am. 
St.  Rep.  143.  affirmed  Mobile  Transp.  Co. 
V.  Mobile,  187  U.  S.  479,  47  L.  Ed.  266,  23 
S.  Ct.  170. 

478-89.  Navigable  nontidal  river. — United 
States  V.  Chandler-Dunbar  Water  Power 
Co.,  209  U.  S.  447,  52  L.  Ed.  881,  28  S.  Ct. 
579. 

A  patent  from  the  United  States,  de- 
scribing the  land  granted  as  bounded  by 
the  St.  iNIary's  river,  carries  with  it  the 
title  to  small,  unsurveyed  islands  on  the 
American  side  of  the  international  bound- 
ary line  where,  under  the  laws  of  the  state, 
a  grant  of  land  bounded  by  a  stream, 
whether  navigable  in  fact  or  not,  carries 
with  it  the  bed  of  the  stream  to  the  center 
of  the  thread.  Decree  (1907)  152  F.  25,  81 
C.  C.  A.  221,  affirmed.  United  States  v. 
Chandler-Dunbar  Water  Power  Co.,  209 
U.  S.  447,  52  L.  Ed.  881,  28  S.  Ct.  579. 

480-95.  Nonnavigable  waters. — United 
States  V.  Chandler-Dunbar  Water  Power 
Co.,  209  U.  S.  447,  52  L.  Ed.  881,  28  S.  Ct. 
579. 

494-69a.  State  boundaries — Meaning  of 
boundary. — Central  R.  Co.  v.  Jersey  City. 
209  U.  S.  473,  479,  52  L.  Ed.  896,  28  S.  Ct. 
592. 


494-69b.    Concurrent   jurisdiction. — Xiel- 

son    V.    Oregon,    212  U."S.    315,  53  L.    Ed. 
528,  29   S.   Ct.  383. 

494-69C.  Power  of  congress. — Washing- 
ton V.  Oregon,  211  U.  S.  127,  53  L.  Ed.  118, 
29  S.  Ct.  47. 

494-69d.  Adjustment  of  boundary  dis- 
putes.— Maryland  v.  West  Virginia.  217  U. 
S.  1,  47.  54  L.  Ed.  645,  30  S.  Ct.  268. 

494-72.  Kansas  and  Missouri. — The  ob- 
ject of  the  Act  of  June  7,  1836,  c.  86,  5  Stat. 
34,  altering  the  western  boundary  of  Mis- 
souri, was  not  to  add  territory  to  the  state 
but  to  substitute  the  Missouri  river  as  an 
ideal  line.  Missouri  v.  Kansas,  213  U.  S. 
78,  53  L.  Ed.  706,  29  S.  Ct.  417. 

It  follows  from  what  has  been  said  that 
an  island  in  the  Missouri  river  west  of  the 
centre  of  its  main  channel,  as  the  channel 
exists  at  present,  belongs  to  Kansas,  al- 
though it  is  east  of  the  original  boundary 
line  of  Missouri.  Missouri  v.  Kansas,  213 
U.  S.  78,  53  L.  Ed.  706.  29  S.  Ct.  417. 

Maryland  and  West  Virginia. — The 
south  bank  of  the  Potomac  river  at  low- 
water  mark  on  the  West  Virginia  shore  is 
the  true  southern  boundary  line  of  the 
state  of  Maryland.  Maryland  v.  West  Vir- 
ginia, 217  U.  S.  577,  54  L.  Ed.  888,  30  S.  Ct. 
630. 

The  boundary  line  between  the  states  of 
Maryland  and  West  Virginia  from  the 
head  waters  of  the  Potomac  to  the  Penn- 
sylvania line  is  adjudged  to  be  the 
"beakins"'  or  "old  state"  line,  run  in  or 
about  the  year  1788,  which  ever  since  has 
been  recognized  as  the  boundary,  and  has 
served  as  such,  although  steps  have  been 
taken  from  time  to  time,  looking  towards 
a  more  effectual  legal  settlement  and  de- 


207 


495-497 


BOUXDARIBS. 


Vol.  III. 


E.  Waters  and  Watercourses  as  Boundaries— 1.  Rivers  as  Boundaries 
BETWEEN  States — a.  In  General. — See  note  74.  There  is  no  fixed  rule  making 
the  center  of  a  channel  of  a  river  the  boundary  between  the  two  states  border- 
ing on  that  river."'*'^ 

"Middle  Channel." — The  middle  of  the  main  channel  of  the  river  is  what 
is  meant  by  the  words  "the  middle  channel  of  said  river,"  in  the  act  admitting 
Oregon  into  the  Union,  with  the  Columbia  River  as  its  northern  boundary.'-*'' 

"Widest  Channel." — The  widest  expanse  of  water  which  can  reasonably 
be  called  a  channel  is  what  is  meant  by  the  words  "widest  channel."'^'' 

3.  Shifting  oe  Shore  or  Channel. — See  note  80.     Where  the  boundary  is 


limitation  of  the  boundary,  none  of  which 
have  been  efifectual  or  such  as  to  disturb 
the  continuous  possession  of  the  people 
claiming  rights  up  to  the  boundary  line. 
Maryland  v.  West  Virginia,  217  U.  S.  1,  54 
L.  Ed.  645,  30  S.  Ct.  268. 

The  state  of  West  Virginia  is  not,  as 
against  the  state  of  Maryland,  entitled  to 
the  Potomac  river  to  the  north  bank 
thereof.  Her  title  runs  only  to  high-water 
mark  on  the  West  Virginia  shore.  Mary- 
land V.  West  Virginia,  217  U.  S.  1.  54  L. 
Ed.  645,  30  S.  Ct.  268. 

Mississippi  and  Louisiana. — Leech  v. 
Louisiana.  214  U.  S.  175,  53  L.  Ed.  956,  29 
S.  Ct.   552. 

New  York  and  New  Jersey. — Central  R. 
Co.  V.  Jersey  City,  209  U.  S.  473,  52  L.  Ed. 
896,  28  S.  Ct.  592. 

Oregon  and  Washington. — Nielsen  i'. 
Oregon,  212  U.  S.  315,  53  L.  Ed.  528,  29  S. 
Ct.  383. 

495-74.  Middle  channel — River  as  bound- 
ary.— Evidence  which  goes  no  further 
than  to  raise  a  doubt  as  to  whether  the 
main  channel  of  the  Mississippi  river  has 
not  at  different  times  varied  from  one  side 
of  Island  No.  76  to  the  other  will  not  sup- 
port a  finding  that  this  channel  ran  to  the 
west  of  the  island  when  Mississippi  was 
admitted  to  the  Union,  and  was  therefore  a 
part  of  that  state,  where  such  finding  is 
opposed  by  testimony  from  memorj''  and 
tradition,  by  the  presumption  from  the 
establishment  of  the  channel  on  the  east 
side  for  a  time  running  back  nearly  or 
quite  to  the  admission  of  Arkansas,  and  by 
consensus  of  action  on  the  part  of  the  two 
states  concerned  and  the  United  States. 
Decree,  Moore  &  McFerrin  v.  McGuire 
(C.  C.  1906)  142. F.  787,  reversed.  Moore 
V.  McGuire,  205  U.  S.  214,  51  L.  Ed.  776.  27 
S.  Cl.  483. 

495-74a.  No  fixed  rule. — Washington  v. 
Oregon,  211  U.  S.  127,  53  L.  Ed.  118.  29  S. 
Ct.  47. 

Thus,  the  grant  of  Virginia,  of  all  right, 
title  and  claim  which  the  said  common- 
wealth had  to  the  territory  northwest  of 
the  Ohio  river,  was  held  to  place  the 
boundary  on  the  northern  bank  of  that 
river.  Washington  v.  Oregon,  211  U.  S. 
127,  53  L.  Ed.  118,  29  S.  Ct.  47,  citing 
Handly  v.  Anthony,  5  Wheat.  374,  5  L.  Ed. 


113.      See,    also,    Howard   i\    Ingersoll,    13 
How.  380,  14  L.  Ed.  189. 

And  when  congress  provided  for  the  ad- 
mission of  the  state  of  Oregon  it  estab- 
lished as  the  boundary  between  Oregon 
and  Washington  the  middle  of  the  north 
channel  of  the  Columbia  river,  and  that 
remains  the  boundary,  although  some 
other  channel  may  in  the  course  of  time 
become  so  far  superior  as  to  be  practically 
the  only  channel  for  navigable  purposes. 
Washington  v.  Oregon,  211  U.  S.  127,  53 
L.  Ed.  118.  29  S.  Ct.  47. 

The  middle  of  the  north  ship  channel 
of  the  Columbia  river,  described  as  the 
boundary  between  Oregon  and  Washing- 
ton in  Act  Feb.  14.  1859.  c.  33,  11  Stat.  383, 
admitting  Oregon  into  the  Union,  remains 
the  boundary,  subject  to  the  changes  in  it 
which  come  by  accretion,  and  is  not  moved 
to  the  other  channel  because  the  latter,  in 
the  course  of  years,  becomes  the  more 
important  and  is  properly  called  the  main 
channel  of  the  river.  Washington  v.  Ore- 
gon, 211  U.  S.  127,  53  L.  Ed.  118,  29  S. 
Ct.  47. 

The  middle  of  the  north  ship  channel 
remains  the  boimdary,  subject  to  changes 
by  accretion,  and  is  not  moved  to  the  other 
channel  because  the  latter,  in  the  course 
of  years,  becomes  the  more  important,  and 
is  properly  called  the  main  channel. 
Washington  v.  Oregon,  214  U.  S.  205,  53 
L.  Ed.  969,  29   S.  Ct.  631. 

495-74b.  "Middle  channel." — Washing- 
ton V.  Oregon,  214  U.  S.  205,  53  L-  Ed. 
969,  29   S.   Ct.  631. 

Desdemona  Sands  and  Snag  Island  are 
within  the  territorial  limits  of  the  state  of 
Oregon;  its  northern  boundary  lieing  de- 
scribed as  a  point  due  west  and  opposite 
the  middle  of  the  north  ship  channel  of 
the  Columbia  river,  thence  easterly  to  and 
up  the  middle  channel  of  said  river,  and, 
where  it  is  divided  by  islands,  up  the  mid- 
dle of  the  widest  channel.  Washington 
V.  Oregon,  214  U.  S.  205,  53  L.  Ed.  969,  29 
S.    Ct.    631. 

495-74C.  "Widest  channel."— Washing- 
ton V.  Oregon.  214  U.  S.  205,  53  L-  Ed. 
969,  29  S.  Ct.  631. 

497-80.  Shifting  on  shore  or  channel.— 
The  western  boundary  line  of  Missouri. 
extended  by  .\ct  Cong.  June  7,  1836,  c.  86, 


208 


Vol.  III. 


BOUNDARIES. 


497-500 


properly  established  in  the  center  of  a  particular  channel,  it  so  remains,  subject 
to  changes  by  accretion,  notwithstanding  another  channel  may  become  more 
important  and  be  regarded  as  the  main  channel  of  the  river.^^^ 

F.  Construction  of  Description. — A  law  altering  the  boundary  of  a  state 
should  be  construed  in  the  light  of  the  extrinsic  facts.^^a 

G.  Establishment    of    Territorial    Boundaries — 1.    By    the  States a. 

Power  to  Settle — Compact — Convention — (1)  In  General. — The  word  "juris- 
diction" in  most  all  cases  of  compacts  between  states  has  a  more  limited  sense 
than  "sovereignty."^"^^ 

b.   Recognition   and  Acquiescence. — See  note  97. 


5  Stat.  34,  to  the  Missouri  river,  remains 
the  center  of  that  stream,  even  if,  by 
erosion,  the  result  may  be  to  take  from 
Missouri  territory  which  lies  east  of  the 
original  boundary,  defined  as  a  meridian 
line  running  due  north  from  the  mouth 
of  the  Kansas  river.  Missouri  v.  Kansas, 
213  U.  S.  78,  53  L.  Ed.  706,  29  S.  Ct.  417. 

497-80a.  Subsequent  importance  of  other 
channels. — See  Washington  z\  Oregon,  211 
U.  S.  127,  53  L.  Ed.  118,  29  S.  Ct.  47. 

"So  whatever  changes  have  come  in  the 
north  channel,  and  although  the  volume 
of  water  and  the  depth  of  that  channel 
have  been  constantly  diminishing,  yet,  as 
all  resulted  from  processes  of  accretion, 
or,  perhaps,  also  of  late  years  from  the 
jetties  constructed  by  congress  at  the 
mouth  of  the  river,  the  boundary  is  still 
that  channel,  the  precise  line  of  separa- 
tion being  the  varying  center  of  that  chan- 
nel." Washington  v.  Oregon,  214  U.  S- 
205,  215,  53  L.  Ed.  969,  29  S.  Ct.  631,  cit- 
ing Jeflferis  v.  East  Omaha  Land  Co.,  134 
U.  S.  178,  33  X.  Ed.  872,  10  S.  Ct.  518; 
Nebraska  z'.  Iowa,  143  U.  S.  359,  36  L.  Ed. 
186;  Iowa  r.  Illinois,  147  U.  S.  1.  37  L. 
Ed.  55;  Missouri  v.  Nebraska,  196  U.  S. 
23,  49  L.  Ed.  372;  Louisiana  v.  Mississippi. 
202  U.  S.  1,  50  L.   Ed.  913. 

4d7-83a.  Construction  of  law. — The  act 
of  June  7,  1836,  c.  86,  5  Stat.  34,  altering 
the  western  boundar}^  of  ^Missouri,  is  to 
be  construed  in  the  light  of  extrinsic  facts. 
Missouri  r.  Kansas,  213  U.  S.  78,  53  L. 
Ed.    706.    29    S.    Ct.    417. 

498-87a.  "Jurisdiction."— Central  R.  Co. 
V.  Jersey  City,  209  U.  S.  473.  52  L.  Ed. 
896.  28  S.  Ct.  592.     See  post,  STATES. 

The  provision  in  a  compact  that  a  state 
shall  retain  its  "present"  jurisdiction  over 
them,  would  seem  on  its  face  simply  to 
be  intended  to  preserve  the  status  quo 
ante,  whatever  it  may  be.  Central  R.  Co. 
V.  Jersey  City.  209  U.  S.  473.  479.  52  L. 
Ed.  896.  28  S.  Ct.  592.  See  post.  TREA- 
TIES. 

"The  word  jurisdiction  has  occurred  in 
other  cases  where  a  river  was  a  l^oundary, 
and  in  the  Virginia  Compact  was  held  to 
mean,  primarily  at  least,  jurisdictio,  au- 
thority to  apply  the  law  to  the  acts  of 
men."  Central  R.  Co.  v.  Jersey  City,  209 
U.  S.  473.  479.  52  L.  Ed.  896.  28  S.  Ct.  592, 


citing  Wedding  v.   Meyler,   192  U.   S.  573, 
584,   48    L.    Ed.    570.     See   ante,   "In   Gen- 
eral," III,  A. 
500-97.    Recognition  and  acquiescence.— 

Length  of  time  that  raises  a  right  by  pre- 
scription in  private  parties,  likewise  raises 
such  a  presumption  in  favor  of  states. 
Maryland  v.  West  Virginia,  217  U.  S.  577, 
54  L.  Ed.  888,  30  S.  Ct.  630. 

"Independently  of  any  effect  due  to  the 
compact  as  such,  a  boundary  line  between 
states  or  provinces,  as  between  private 
persons,  which  has  been  run  out,  located 
and  marked  upon  the  earth,  and  after- 
wards recognized  and  acquiesced  in  by 
the  parties  for  a  long  course  of  years,  is 
conclusive,  even  if  it  be  ascertained  that 
it  varies  somewhat  from  the  courses 
given  in  the  original  grant;  and  the  line 
so  established  takes  effect,  not  as  an 
alienation  of  territory,  but  as  a  definition 
of  the  true  and  ancient  boundary."  Marj-- 
land  V.  West  Virginia,  217  U.  S.  1,  42,  54 
L.  Ed.  645,  30  S.  Ct.  268.  citing  Lord  Hard- 
wicke  in  Penn.  v.  Lord  Baltimore,  1  Vesey 
Sen.  444,  448;  Boyd  v.  Graves,  4  Wheat. 
513,  4  L.  Ed.  628;  Rhode  Island  z:  :\Iassa- 
chusetts,  12  Pet.  657,  754,  9  L.  Ed.  1233: 
United  States  v.  Stone,  2  Wall.  525,  537. 
17  L.  Ed.  765;  Kellogg  z\  Smith,  7  Cush. 
375,  382;  Chenery  z:  Waltham.  8  Cush. 
327;  Hunt  on  Boundaries  (3d  Ed.),  396. 
See  post,  ESTOPPEL;  PRESCRIPTION. 

A  meridian  boundary  line,  though  as- 
tronomically incorrect,  should  be  main- 
tained after  it  has  been  recognized  for 
man}^  j'ears  and  become  the  basis  for 
property  rights.  ]\Iaryland  v.  West  Vir- 
ginia, 217  U.  S.  1,  54  L.  Ed.  645,  30  S.  Ct. 
268. 

"In  this  case  we  think  a  right,  in  its  na- 
ture prescriptive,  has  arisen,  practically 
undisturbed  for  many  years,  not  to  be 
overthrown  without  doing  violence  to 
principles  of  established  right  and  justice 
equally  binding  upon  states  and  individ- 
uals." Maryland  7'.  West  Virginia,  217  U. 
S.  1.  44.  54  L.  Ed.  645,  30  S.  Ct.  268.  Sec. 
also,  Rhode  Island  r.  Massachusetts,  12 
Pet.  657.  9  L.  Ed.  1233. 

In  Louisiana  z:  Mississippi,  202  U.  S.  1. 
53,  50  L.  Ed.  913,  the  federal  supreme 
court  said:  "The  question  is  one  of 
boundary,  and  this  court  has  many  times 


12   U    S    Enc— 14 


209 


502-513 


BREACH  OF  CONTRACT. 


Vol.  III. 


2.  By  Judicial  Proceedings — b.  Mode  of  Proceedings — (2)  Commission  of 
Boundary — (b)  Commissioners  to  Retrace,  Remark  and  Re-Estcthlish. — See 
note  4. 

g.  Costs. — Where  both  parties  are  ahke  interested  in  a  boundary  case,  the 
costs  are  equally   divided  between  them.^*^^ 

BOUNTIES. — See  the  title  Bounties,  vol.  3,  p.  508,  and  references  there 
given. 

BOXING  AND  CUTTING  TIMBER.— See  post.  Trees  and  Timber. 

BOYCOTT. — See  post,  Conspiracy;  Injunctions;  Monopolies  and  Cor- 
porate Trusts;    Restraint  of  Trade. 

BRAIDS.— See  note  a. 

BRAKEMAN.— See  post.  Fellow  Servants. 

BRANCH  ROAD.— See  post,  Public  Lands. 

BRANDING. — See  post,  Foods  and  Drugs. 

BREACH  OF  CONTRACT.— See  post,  Contracts;  Damages;  Sales; 
Vendor  and  Purchaser;    Water  Companies  and  Waterworks. 


held  that,  as  between  the  states  of  the 
union,  long  acquiescence  in  the  assertion 
of  a  particular  boundary  and  the  exercise 
of  dominion  and  sovereignty  over  the 
territory  within  it  should  be  accepted  as 
conclusive,  whatever  the  international  rule 
might  be  in  respect  of  the  acquisition  by 
prescription  of  large  tracts  of  country 
claimed  by  both."  Maryland  i'.  West 
Virginia,  217  U.  S.  1,  43,  54  L.  Ed.  645,  30 
S.   Ct.  268. 

"As  said  by  this  court  in  tlie  recent 
case  of  Indiana  v.  Kentucky,  136  U. 
S.  479,  510.  34  L.  Ed.  329,  'it  is  a  principle 
of  public  law,  universally  recognized,  that 
long  acquiescence  in  the  possession  of 
territory,  and  in  the  exercise  of  dominion 
and  sovereignty  over  it,  is  conclusive  of 
the  nation's  title  and  rightful  authority.' 
In  the  case  of  Rhode  Island  v.  Massa- 
chusetts, 4  How.  590,  639,  11  L.  Ed.  1116. 
this  court,  speaking  of  the  long  posses- 
sion of  Massachusetts,  and  the  delays  in 
alleging  any  mistake  in  the  action  of  the 
commissioners  of  the  colonies,  said: 
'Surely  this,  connected  with  the  lapse  of 
time,  must  remove  all  doubts  as  to  the 
right  of  the  respondent  under  the  agree- 
ments of  1711  and  1718.'"  Maryland  ?'. 
West  Virginia,  217  XJ.  S.  1,  42,  54  L.  Ed. 
645,  30  S.   Ct.  268. 

502-4.  Retracing,  remarking,  etc. — The 
decree  should  provide  for  the  appointment 
of  commissioners  to  run  and  permanentlj^ 
mark,  as  the  boundary  line  between 
Maryland  and  West  Virginia,  the  old 
Deakins  line,  beginning  at  a  point  where 
Ihe  north  and  south  line  from  the  Fairfax 
Stone  crosses  the  Potomac  river  and  run- 
ning thence  northerly  along  said  line  to 
the  Pennsylvania  border.  Maryland  v. 
West  Virginia,  217  U.  S.  1,  2,  54"  L.  Ed. 
645,    30    S.    Ct.    268. 

505-16a.    Costs. — Washington  v.  Oregon, 


211  U.  S.  127,  53  L.  Ed.  118,  29  S.  Ct.  47. 

The  cost  of  the  surveys  made  by  the 
surveyors  of  the  respective  states  in  a 
boundary  dispute,  pursuant  to  an  order 
entered  by  the  consent  of  both  parties, 
should  be  equally  divided  between  those 
states.  Maryland  v.  West  Virginia,  217 
U.    S.    577,    54   L.    Ed.   888,   30   S.    Ct.    630.    ' 

In  making  an  order  for  the  division  of 
costs  between  states  in  a  boundary  dis- 
pute the  matter  involved  is  one  govern- 
mental in  character  in  which  each  party 
has  but  a  real  and  yet  not  a  litigous  in- 
terest. The  object  to  be  obtained  is  the 
promotion  of  the  peace  and  good  of  the 
communities,  and  all  expenses  should  be 
borne  in  common  and  included  in  the 
costs  equally  divided  between  the  states. 
Maryland  v.  West  Virginia,  217  U.  S. 
577,  54  L.  Ed.  888,  30  S.  Ct.  630,  citing 
Nebraska  v.  Iowa,  143  U.  S.  359,  370,  38 
L.   Ed.   186. 

513-a.  Classification  of  braids  in  the 
revenue  acts. — Xarrow  woven  cotton  strips 
bearing  "featherstitch"  or  "herringbone" 
ornamentation,  used  largely  for  binding 
seams,  but  commercially  known  as  feather- 
stitch braids  at  and  prior  to  the  enactment 
of  the  Tariff  Act  of  July  24,  1897,  which 
shifted  braids  from  the  lower  duty  of  the 
notion  schedule  to  the  higher  duty  of  the 
trimmings  schedule,  without  any  change 
of  phraseology  to  indicate  that  it  was  the 
purpose  to  depart  from  the  commercial 
meaning  of  the  word  braids,  must  be 
deemed  dutable  under  the  trimmings 
schedule,  as  cotton  braids  and  not  under 
the  notions  schedule,  as  bindings  or  as 
tapes,  especially  in  view  of  the  settled  ad- 
ministrative construction  to  that  cfifect. 
United  States  v.  Barucb,  223  U.  S.  191.  56 
L.  Ed.  399,  32  S.  Ct.  306.  See  post, 
REVENUE   LAWS. 


210 


Vol.  III.  BRIDGES.  523-528 

BREACH  OF  THE  PEACE.— As  to  the  terms  "treason,  felony,  and  breach 
of  the  peace,"  as  used  in  the  constitutional  provision  exempting  senators  and 
representatives  from  arrest,  see  post.  Privilege:. 

BRIBERY. — See  the  title  Bribery,  vol.  3,  p.  514,  and  references  there  given. 

BRIDGES. 

II.  Erection,  Maintenance  and  Repair,  211. 
r>.  Duty  to  Construct  and  Repair,  211. 

III.  Control,  Regulation,  Alteration  and  Removal,  211. 
B.  Authority  to  Require  Alteration  or  Removal,  211. 
3.   Power  of  the  Secretary  of  War,  211. 

V.  Injunction  to  Restrain,  and  Liability  for,  Injuries  to  Bridges,  211. 

CROSS  REFERENCES. 
See  the  title  Bridges,  vol.  3,  p.  517,  and  references  there  given. 
In  addition,  see  ante,  Admiraty,  p.  10. 

II.  Erection,  Maintenance  and  Repair. 
B.  Duty  to  Construct  and  Repair. — The  expense  of  constructing  a 
railway  bridge  over  a  highway,  made  necessary  by  the  action  of  the  mu- 
nicipality in  opening  such  highway  through  the  railway  company's  embankment, 
may  be  cast  upon  the  railway  company  without  denying  the  due  process  of  law 
guaranteed  by  the  federal  constitution,  which  recjuires  that  compensation  be  made 
when  private  property  is  taken  for  public  use.-^""" 

III.  Control,   Regulation,    Alteration  and  Removal. 
B.    Authority   to    Require    Alteration    or    Removal — 3.    Power   oe   the 
Secretary  oe  War. — See  note  56. 

V.  Injunction  to   Restrain,    and  Liability  for,   Injuries   to   Bridges. 

Redress  can  not  be  afforded  in  admiralty  for  injuries  inflicted  by  a  colliding 
vessel  upon  a  bridge  over  a  navigable  stream."'"^ 

523-37a.     Expense   of  constructing  rail-  NAVIGABLE   WATERS. 

way    bridge     over     highway. — Cincinnati,  A  notice  to  a  bridge  company  to  make 

etc.,  R.  Co.  V.  Connersville,  218  U.  S.  336.  certain  alterations  in  a  bridge  over  an  in- 

54  L.    Ed.    1060,    31    S.    Ct.    93.      See   post.  terstate    water    way,    conformably    to    the 
DUE  PROCESS  OF  LAW.  Act  of  March  3,  1899  (30  Stat,  at  L.  1121, 

525-56.  Special  act  subject  to  provisions  chap.  425),  §  18,  enacted  to  secure  naviga- 
of  River  and  Harbor  Act. — A  bridge  over  tion  against  unreasonable  obstructions,  is 
the  Mississippi  river,  constructed  under  not  insufficient  as  the  basis  of  a  criminal 
the  authority  of  the  special  act  of  con-  prosecution  in  case  of  noncompliance  be- 
gress  of  July  25,  1866  (14  Stat,  at  L.  244,  cause  it  bears  the  signature  of  the  as- 
chap.  246),  which  expressly  reserves  the  sistant  secretary  of  war,  instead  of  the 
right  of  alteration  or  amendment  so  as  secretary  himself,  who  is  the  official  named 
to  prevent  or  remove  all  material  obstruc-  in  the  statute  as  the  one  to  give  such  no- 
tions to  navigation  by  the  construction  of  tice,  -where  the  communication  shows 
bridges,  is  subject  to  the  provisions  of  upon  its  face  that  it  was  from  the  war 
the  River  and  Harbor  Act  of  March  3,  department,  and  from  the  secretary  of  vvar, 
1899.  §  18,  empowering  the  secretary  of  and  that  the  latter,  without  abrogating 
war,  when  satisfied,  after  a  hearing  of  the  bis  authority  under  the  statute,  only  used 
parties  interested,  that  a  bridge  over  a  the  hand  of  the  assistant  secretary  in  or- 
navigable  water  way  of  the  United  States  der  to  give  the  owners  of  the  bridge  no- 
is  an  unreasonable  obstruction  to  naviga-  tice  of  what  was  required  of  them, 
tion,  to  require  such  changes  or  altera-  Hannibal  Bridge  Co.  v.  United  States.  221 
tions  as  will  render  navigation  reasonably  U.  S.  194,  55  L.  Ed.  699,  31  S.  Ct.  003. 
free,  easy,  and  unobstructed.  Hannibal  528-79a.  Injuries  by  vessel  to  bridge 
Bridge  Co.  v.  United  States,  221  U.  S.  194.  over  navigable  stream— No  redress  m  ad- 

55  L.     Ed.   699,   31    S.    Ct.   603.     See   post.  miralty.— Cleveland,   etc.,   R.   Co.  v.  Clevo- 

211 


530-533 


BROKERS. 


\'ol.  III. 


BRIEFS. — See  ante,  Appeal  and  Error,  p.  34. 
BRINGING.— See  note  a. 

BROKERS. 

II.  Nature  of  Business,  212. 
IV.  Compensation  and  Reimbursement,  213. 

A.  Right  to  Compensation  for    Services  and  Reimbursement  for  Advances, 
213. 
2.  Necessity  for  Completion  of  Transaction,  213. 

a.  General  Rule,  213. 

b.  Where  Principal  Refuses  to  Fulfill  Agreement.  213. 

CROSS  REFERENCES. 

See  the  title  Brokers,  vol.  3,  p.  531,  and  references  there  given. 

II.  Nature  of  Business. 

A  stockbroker  is  not  the  owner  of  the  shares  of  stock  which  he  purchases 
and  carries  for  his  customers  on  margin,  but  is  essentially,  if  not  strictly,  as' 
understood  at  common  law,  a  pledgee.^^ 


land  Steamship  Co.,  208  U.  S.  316,  52  L. 
Ed.  508,  28  S.  Ct.  414;  The  Troy,  208  U. 
S.  321,  52  L.  Ed.  512,  28  S.  Ct.  416.  See 
ante,  ADMIRALTY,  p.  in. 

530-a.  Bringing  aliens  to  the  United 
States. — Section  18  of  the  Immigration  Act 
of  March  3,  1903,  makes  it  the  duty  of  any 
officer  in  charge  of  any  vessel  bringing 
an  alien  to  the  United  States  to  adopt  due 
precaution  to  prevent  the  landing  of  such 
alien  at  any  time  or  place  other  than  that 
designated  by  the  immigration  officers, 
punishing  him  if  he  lands  or  permits  to 
land  any  alien  at  any  other  time  or  place. 
"Bringing  to  the  United  States,"  taken 
literally  and  nicely,  means,  as  a  similar 
phrase  in  §  8  plainly  means,  transporting 
with  intent  to  leave  in  the  United  States, 
and  for  the  sake  of  transport —  not  trans- 
porting with  the  intent  carry  back,  and 
merely  as  incident  to  employment  on  the 
instrument  of  transport.  The  ordinary 
case  of  a  sailor  deserting  while  on  shore 
leave  is  not  comprehended  by  the  pro- 
visions of  the  act.  notwithstanding  the 
omission  from  this  section  of  the  word 
"immigrant"  which  had  followed  the  word 
"alien"  in  the  earlier  case.  Taylor  f. 
United  States,  207  U.  S.  120,  52  L.  Ed.  130. 
28   S.    Ct.   53. 

533-4a.  Stockbroker  purchasing  and 
carrying  for  customers  on  margiji. — Rich- 
ardson c'.  Shaw.  209  U.  S.  365,  52  L.  Ed. 
835,  28  S.  Ct.  512,  affirming  147  Fed.  659, 
77   C.   C.   A.   643. 

"There  has  been  much  discussion  upon 
this  subject  in  the  courts  of  the  union. 
The  leading  case,  and  one  most  frequentl}^ 
cited  and  followed,  is  ]\Iarkham  v.  Jaudon. 
41  N.  Y.  235,  a  case  which  was  argued  by 
eminent  counsel  and  held  over  a  term  for 
consideration.     The  opinion  in  the  case  is 


by  Chief  Judge  Hunt,  afterwards  Mr.  Jus- 
tice Hunt  of  this  court.  He  summarized 
the  conclusions  of  the  court  as  follows; 
'The  broker  undertakes  and  agrees:  1. 
At  once  to  buj"  for  the  customer  the 
stocks  indicated.  2.  To  advance  all  the 
money  required  for  the  purchase  beyond 
the  ten  per  cent  furnished  by  the  cus- 
tomer. 3.  To  carry  or  hold  such  stocks 
for  the  benefit  of  the  customer  so  long  as 
the  margin  of  ten  per  cent  is  kept  good, 
or  until  notice  is  given  by  either  party 
that  the  transaction  must  be  closed.  An 
appreciation  in  the  value  of  the  stocks  is 
the  gain  of  the  customer  and  not  of  the 
broker.  4.  At  all  times  to  have  in  his 
name  and  under  his  control  ready  for  de- 
livery the  shares  purchased,  or  an  equal 
amount  of  other  shares  of  the  same  stock. 
5.  To  deliver  such  shares  to  the  customer 
when  required  by  him,  upon  the  receipt 
of  the  advances  and  commissions  accru- 
ing to  the  broker.  6.  To  sell  such  shares, 
upon  the  order  of  the  customer,  upon  pay- 
ment of  the  like  sums  to  him.  and  account 
to  the  customer  for  the  proceeds  of  such 
sale.  Under  this  contract  the  customer 
undertakes:  1.  To  pay  a  margin  of  ten 
per  cent  on  the  current  market  value  of 
the  shares.  2.  To  keep  good  such  margin 
jiccording  to  the  fluctuations  of  the  mar- 
ket. 3.  To  take  the  shares  so  purchased 
on  his  order  whenever  required  by  the 
broker,  and  to  pa};-  the  diflference  between 
the  percentage  advanced  by  him  and  the 
amount  paid  therefor  by  the  broker.  The 
position  of  the  broker  is  twofold.  Upon 
the  order  of  the  customer  he  purchases 
shares  of  stocks  desired  by  him.  This  is 
a  clear  act  of  agency.  To  complete  the 
purchase  he  advances  from  his  own  funds. 
for   the    benefit    of   the    purchaser,    ninety 


212 


Vol.  III. 


BROKERS. 


534 


IV.  Compensation  and  Reimbursement. 

A.  Right  to  Compensation  for  Services  and  Reimbursement  for  Ad- 
vances— 2.  Necessity  for  Completion  of  Traxsactiox — a.  General  Rule. — 
See  note  8.  A  binding  agreement  between  the  vendor  and  purchaser  is  not, 
however,  necessary,  before  a  broker's  commission  can  be  earned,  under  an 
agreement  by  which  such  broker  was  employed  to  find  a  purchaser. ^^ 

b.  Where  Principal  Refuses  to  Fulfill  Agreement. — The  inability  of  the  pros- 
pective purchaser  to  complete  the  purchase  is  not  available  as  an  afterthought 
to  defeat  the  right  of  the  broker  employed  to  find  a  purchaser  to  recover  his 
agreed  commissions,  where  the  sale  failed  wholly  through  the  fault  of  the 
owner,  who  made  no  objection  to  the  purchaser. ^"^     Where  the  broker,  relying 


per  cent  of  the  purchase  money.  Quite 
hs  clearly  he  does  not  in  this  act  as  an 
agent,  but  assumes  a  new  position.  He 
also  holds  or  carries  the  stock  for  the 
benefit  of  the  purchaser  until  a  sale  is 
made  by  the  order  of  the  purchaser  or 
upon  his  own  action.  In  thus  holding  or 
carrying  he  stands  also  upon  a  different 
ground  from  that  of  a  broker  or  agent 
whose  office  is  simply  to  buy  and  sell.  To 
advance  money  for  the  purchase,  and  to 
hold  and  carry  stocks,  is  not  the  act  of 
the  broker  as  such.  In  so  doing  he  en- 
ters upon  a  new  duty,  obtains  other  rights, 
and  is  subject  to  additional  responsibili- 
ties *  *  *.  In  my  judgment  the  contract 
between  the  parties  to  this  action  was  in 
spirit  and  efifect,  if  not  technically  and  in 
form,  a  contract  of  pledge.'  The  case  has 
been  approved  in  other  cases  in  New  York, 
some  of  which  are:  Stewart  z'.  Drake,  46 
N.  Y.  449:  Stenton  r.  Jerome.  54  N.  Y. 
480;  Baker  z,;  Drake,  66  N.  Y.  518;  Gru- 
man  v.  Smith,  81  N.  Y.  25;  Gillet  v.  Whit- 
ing, 120  N.  Y.  402;  Content  v.  Banner,  184 
N.  Y.  121;  Douglas  t'.  Carpenter,  17  App. 
Div.  329.  And  approved  in  other  States: 
Cashman  v.  Root.  89  California  373; 
Brewster  t'.  Van  Liew.  119  Illinois  554; 
Gilpin  V.  Howell,  5  Pa.  St.  41;  Wynkoop 
z'.  Seal.  64  Pa.  St.  361;  Esser  v.  Linder- 
man.  71  Pa.  St.  76.  The  subject  was  fully 
considered  in  a  case  which  leaves  nothing 
to  be  added  to  the  discussion.  Skiff  z\ 
Stoddard,  63  Connecticut,  198,  in  which  the 
conclusions  in  Markham  z'.  Jaudon  were 
adopted  and  approved.  These  views  have 
been  very  generally  accepted  as  settled 
law  by  the  text  writers  on  the  subiect. 
1  Dos  Passos  on  Stockbrokers  (2d  Ed.), 
179-200;  Jones  on  Pledges,  §  496;  Mechem 
on  Agency.  §  936.  Mr.  Jones,  in  his  work 
on  pledges,  summarizes  the  law  as  fol- 
lows: "The  broker  acts  in  a  threefold  re- 
lation: First,  in  purchasing  the  stock,  he 
is  an  agent;  then  in  advancing  money  for 
the  purchase  he  becomes  a  creditor,  and 
finally,  in  holding  the  stock  to  secure  the 
advance  made,  he  becomes  a  pledge  of  it. 
It  does  not  matter  that  the  actual  pos- 
session of  the  stock  was  never  in  the  cus- 
tomer. The  form  of  the  delivery  of  the 
stock  to  the  customer,  and  a  redelivery  by 


him  to  the  broker,  would  have  constituted 
a  strict,  fonnal  pledge.  But  this  delivery 
and  redelivery  would  leave  the  parties  in 
precisely  the  saine  situation  they  are  in 
when,  waiving  this  formality,  the  broker 
retains  the  certificate  as  security  for  ad- 
vances.'" Richardson  z\  Shaw,  209  U.  S. 
365,  374,  52  L.  Ed.  835,  28  S.  Ct.  512. 

"In  Dos  Passos  on  Stockbrokers,  at 
page  114.  the  author  says:  'Upon  the 
whole,  while  it  must  be  conceded  that  there 
are  incongruous  features  in  the  relation, 
there  seems  to  be  no  hardship  in  holding 
that  a  stockbroker  is  a  pledgee;  for  al- 
though it  is  true  that  he  may  advance  all 
or  the  greater  part  of  the  money  em- 
braced in  the  speculation,  if  he  acts  hon- 
estly, faithfully  and  prudently,  the  entire 
risk  is  upon  the  client  *  *  *.  To  introduce 
a  different  rule  would  give  opportunities 
for  sharp  practices  and  frauds,  which  the 
law  should  not  invite.'  "  Ricl^ardson  z'. 
Shaw\  209  U.  S.  365.  376,  52  L.  Ed.  835,  28 
S.   Ct.  512. 

534-8.  Instruction  held  to  presuppose 
agreement  between  vendor  and  purchaser 
as  to  terms. — A  finding  that  the  owner  and 
purchaser  had  agreed  upon  terms  is  pre- 
supposed, in  an  instruction  authorizing  the 
recovery  of  agreed  commissions  by  a 
broker  employed  to  find  a  purchaser  for 
the  whole,  or  any  considerable  part,  of  a 
tract  of  coal  lands,  who  had  found  a  pur- 
chaser able,  ready,  and  willing  to  purchase 
10.000  acres  of  the  said  lands  at  the  stipu- 
lated price,  where  the  sale  failed  because 
of  the  inaccuracy  of  the  owner's  repre- 
sentations to  the  brokeV  that  a  railway 
company  had  consented  or  agreed  to  con- 
struct a  branch  railroad  into  such  lands. 
Tudgment,  27  App.  D.  C.  500,  affirmed. 
Dotson  z:  Milliken.  209  U.  S.  237,  52  L. 
Ed.  768.  28  S.  Ct.  489. 

534-8a.  Binding  agreement  between 
vendor  and  purchaser  not  essential. — Dot- 
son  z:  Milliken,  200  U.  S.  237,  52  L.  Ed. 
768,  28  S.  Ct.  480.  affirming  27  .App.  D.  C. 
500. 

534-lOa.  Inability  of  prospective  pur- 
chaser, etc. — Dotson  z'.  Milliken.  209  U. 
S.  237,  52  L.  Ed.  768,  28  S.  Ct.  480,  affirm- 
ing 27  App.  D.  C.  500. 


213 


534-553 


CAPITAL— CAPITAL  STOCK. 


Vol.  III. 


upon  the  representations  of  the  owner  of  property,  with  regard  to  such  prop- 
erty, finds  a  purchaser,  and  the  purchase  fails  because  of  the  inaccuracy  of  such 
representation,  the  broker  is  entitled  to  his  agreed  commissions. i'"' 

BROUGHT.— See  note  2. 

BUILDING  AND  LOAN  ASSOCIATIONS.— See  the  title  Building  and 
Lo.\N  Associations,  vol.  3.  p.  542,  and  references  there  given. 

BUILDING  CONTRACTS.— See  post.  Workinc  CoNTrxACTS. 

BUILDING  RESTRICTIONS  AND  RESTRICTIVE  AGREEMENTS.— See 
Building  Rlstrictions  and  Restrictive;  Agreements,  vol.  3,  p.  543,  and  ref- 
erences there  given.  And  see  post.  Constitutional  Law  ;  Due  Process  of  Law  ; 
Police  Power. 

BURDEN  OF  PROOF. — See  post.  Presumptions  and  Burden  of  Proof. 
And  see  the  particular  titles  throughout  this  supplement. 

BUSINESS. — Business  is  a  very  comprehensive  term  and  embraces  everything 
about  which  a  person  can  be  employed — that  which  occupies  the  time,  attention, 
and  labor  of  men  for  the  purpose  of  a  livelihood  or  profit.-'^ 

CALCULATED.— See  note  7a. 

CALLS. — See  ante.  Boundaries,  p.  206. 

CANALS. — See  the  title  Canals,  vol.  3,  p.  546,  and  references  there  given. 

CANCELLATION. — See  post.  Rescission,  Cancellation  and  Reformation. 

CAPITAL— CAPITAL  STOCK.— See  note  2a. 


534-lOb.  Where  purchase  fails  on  ac- 
count of  inaccuracy  of  owner's  represen- 
tations.—Dotson  r.  Milliken,  209  U.  S.  2.37, 
52  L.  Ed.  768,  28  S.  Ct.  489,  affirming  27 
App.   D.   C.  500. 

A  broker  employed  to  find  a  purchaser 
for  the  whole,  or  any  considerable  part,  of 
a  tract  of  coal  land,  is  entitled  to  his 
agreed  commission,  where  he  finds  a  pur- 
chaser for  10,000  acres,  and  the  sale  fails 
because  of  the  inaccuracy  of  the  owner's 
representations  to  the  broker  that  a  rail- 
way company  had  consented  or  agreed  to 
construct  a  branch  railroad  into  such 
lands.  Judgment,  27  App.  D.  C.  500,  af- 
firmed. Dotson  V.  Milliken,  209' U.  S.  237, 
52   L.   Ed.  768,  28   S.   Ct.  489. 

The  failure  of  the  prospective  purchaser 
of  coal  lands  to  rely  upon  the  owner's 
representations  to  the  broker  employed  to 
find  a  purchaser  that  a  railway  company 
had  consented  or  agreed  to  construct  a 
branch  railroad  into  such  lands  does  not 
defeat  the  broker's  right  to  his  agreed 
commissions,  where,  relying  upon  such 
representations,  he  finds  a  purchaser,  and 
the  sale  fails  because  of  their  inaccuracy. 
Judgment,  27  App.  D.  C.  500,  affirmed. 
Dotson  v.  Milliken,  209  U.  S.  237,  52  L. 
Ed.   768,   28    S.    Ct.   489. 

541-2.  A  writ  of  error. — Old  Nick  Wil- 
liams Co.  7'.  United  States,  215  U.  S.  541, 
54  L.  Ed.  318,  30  S.  Ct.  221. 

544-3a.  Business. — Flint  v.  Stone  Tracy 
Co.,  220  U.  S.  107,  55  L.  Ed.  389,  31  S.  Ct. 
342.  See  post,  DOING  BUSINESS.  See, 
also,  post,  FOREIGN  CORPORATIONS. 

544-7a.  Reasonably  calculated  to  fix 
prices. — In    referring   the   Texas   Antitrust 


Act  of  1899,  denouncing  contracts  and  ar- 
rangements "reasonably  calculated"  to  fix 
and  regulate  the  prices  of  commodities, 
etc.,  the  court  said:  "as  to  the  phrase,  'rea- 
sonai)ly  calculated,'  what  does  it  include 
less  than  acts,  which,  when  fairly  consid- 
ered, tend  to  accomplish  the  prohibited 
thing,  or  which  make  it  highly  probable 
that  the  given  result  will  be  accom- 
plished?" The  act  was  not  unconstitu- 
tional on  the  grounds  that  it  was  vague, 
indefinite  and  uncertain.  Waters-Pierce 
Oil  Co.  V,  Texas,  No.  1,  212  U.  S.  86,  53  L. 
Ed.  417,  29  S.  Ct.  220.  See  post,  MO- 
NOPOLIES AND  CORPORATE 
TRUSTS. 

553-2a.  Capital  stock  and  shares  distin- 
guished.— "There  is  an  obvious  distinction 
between  the  capital  stock  of  an  incorpo- 
rated company  and  the  'shares'  of  the 
company.  The  one  is  the  capital  upon 
which  the  business  is  to  be  undertaken, 
and  is  represented  by  the  property  of 
every  kind  acquired  by  the  company. 
Shares  are  the  mere  certificates  which 
represent  a  subscriber's  contribution  to 
the  capital  stock  and  measure  his  interest 
in  the  company."  Wright  t'.  Georgia  R., 
etc.,  Co.,  216  U.  S.  420.  54  L.  Ed.  544.  30 
S.  Ct.  242.  See  post,  CORPORATIONS, 
STOCK  AND  STOCKHOLDERS. 

Capital  embraced  in  the  term  stock. — 
"The  word  'stock'  is  not  uniformly  used 
to  designate  the  capital  of  a  corporation, 
although  its  primary  meaning  is  capital, 
in  whatever  form  it  may  be  invested.  In- 
deed, it  is  not  at  all  unusual  to  find  the 
word  used  synonymously  with  'shares,' 
and  meaning  the  certificates  issued  to  sub- 
scribers to  the  company's  stock."    Wright 

214 


Vol.  III. 


C'ARRIED  OUT 


554-555 


CAPITAL  CRIME.— See  note  3a. 
CAPTURE.— See  post.  Prize. 
CARBONATE  OF  LEAD.— See  note  la. 
CARRIED  OUT.— See  note  2a. 


V.  Georgia  R..  etc..  Co..  216  U.  S.  420.  54 
L.    Ed.    544,    30    S.    Ct.    242. 

Capital,  in  whatever  form  invested,  ap- 
propriate to  the  purpose  of  the  company, 
and  not  merely  the  shares  held  by  stock- 
holders, must  be  regarded  as  meant  by 
the  W':^rd  "stock,"  as  used  in  a  provision 
of  a  railway  charter  that  the  stock  of  the 
company  and  its  branches  shall  be  ex- 
empt from  taxation  for  seven  years,  and 
after  that  shall  be  subject  to  a  tax  not 
exceeding  a  given  per  cent  upon  the  net 
proceeds  of  their  investments,  in  view  of 
the  recognition  in  other  provisions  of  the 
charter  of  the  distinction  between  capital 
stock  and  "shares,"  and  of  at  least  six*-y 
j'ears'  legislative  and  executive  ac- 
quiescence in  reading  this  partial  exemp- 
tion as  applicable  to  the  capital  stock  of 
the  company,  and  of  a  series  of  decisions 
of  the  highest  state  court,  holding  either 
that  the  whole  of  the  capital, was  exempt, 
in  whatever  form  invested,  or  so  much  of 
the  investment  as  corresponded  in  value 
to  the  authorized  capital  stock-  Wright 
V.  Georgia  R.,  etc.,  Co..  216  U.  S.  420.  54 
L.  Ed.  544,  30  S.  Ct.  242.  See  post. 
TAXATION. 

554-3a.  Conviction  of  capital  crime. — 
The  conviction  in  a  federal  district  court 
of  murder  in  the  second  degree,  punish- 
able only  by  imprisonment,  is  not  a  "con- 


viction of  capital  crime,"  within  the 
meaning  of  §  5  of  the  Act  of  March  3, 
1891,  as  amended  by  the  Act  of  January 
20,  1897,  allowing  a  writ  of  error  directly 
from  the  supreme  court  to  the  district 
court  of  the  United  States  in  case  of  "con- 
viction of  a  capital  crime."  This  is  true 
although  the  accused  could  have  been 
convicted  under  the  indictment  of  a  capital 
offense.  The  jurisdiction  of  the  supreme 
court,  in  this  regard,  does  not  depend 
upon  the  crime  charged  in  the  indictment. 
Rakes  v.  United  States,  212  U.  S.  55,  5:; 
L.  Ed.  401,  29  S.  Ct.  244.  See  ante,  AP- 
PEAL AND  ERROR,  p.  34;  post. 
COURTS;    CRniTNAL    LAW. 

555-la.  Pure  carbonate  of  lead. — In  the 
Act  of  North  Dakota,  of  January  1,  1906 
requiring  the  manufactures  of  mixed 
paints  to  label  the  ingredients  composing 
them,  the  enumeration  of  "pure  carbonate 
of  lead"  may  be  corrected  into  commer- 
cial carbonate  by  a  perfectly  allowable 
exercise  of  construction.  Heath,  etc.. 
Mfg.  Co.  V.  Worst,  207  U.  S.  338,  358,  52 
L.  Ed.  230.  28  S.  Ct.  114.  See  post. 
POLICE   POWER. 

555-2a.  Carried  out  used  in  sense  of 
performance. — See  Parish  v.  MacVeagh, 
214  U.  S.  124,  136,  53  L.  Ed.  936.  29  S.  Ct. 
556. 


215 


CARRIERS.^  Vol.  Ill 


CARRIERS. 
I.  Definitions  and  General  Considerations,  217. 

A.  Who  Are  Common  Carriers,  217. 

7.  Duty  to  Engage  in  Business,  217. 

II.  Carriers  of  Passengers,  217. 

E.  Tickets  and  Fares,  217. 

2.  Conditions   in  Ticket,  217. 
d.  Transferability,  217. 

4.  Purchase  and  Sale  of  Nontransferable  Tickets — Ticket  Scalpers, 
218. 
G.  Duty  as  to  Passenger  Alighting  from  Train.  219. 
H.  Duties  and  Rights  as  to  Stations  and  Terminals,  219. 

1.  Duty  to  Provide  Safe  Station,  219. 
L.  Contributory  Negligence  of  Passenger,  219. 

14.  In  General,  219. 

III.  Carriers  of  Goods,  219. 

A.  Duty  to  Receive  and  Carrv,  219. 
1.  In  General,  219. 

E.  Duties  and  Liabilities  in  Course  of  Transportation,  220. 

1.  In  General,  220. 

2.  Care  Required  of  Carrier,  220. 

•a.  General  Rule — Liability  That  of  Insurer,  220. 
b.  Circumstances  Exempting  Carrier  from  Liability  as  Insurer, 
220. 
(6)   Duty  to  Resist  Judicial  Process,  220. 

6.  Loss  by  Deviation,  220. 

8.  Delay  in  Transportation,  221. 

10.  Stoppage  in  Transit  for  Inspection  or  Reconsignment,  221. 

F.  Delivery  by  Carrier,  221. 

1.  Necessity  for  Delivery,  221. 
H.  Connecting  Carriers,  221. 

1.  Liability  of  Initial  Carrier,  221. 

a.  Loss  or  Damage  on  Its  Own  Line,  221. 

b.  Duty  to  Deliver  to  or  Notify  Connecting  Carrier,  221. 

(\)   In  General,  221. 

c.  Liability  for  Loss  or  Damage  on  Route  of  Connecting  Carrier, 

221. 

(1)  In  Absence  of  Contract,  221. 

(2)  Under    Contract    for    Through    Carriage,    221. 
(a)    Power  to  Make  Contract,  221. 

aa.  Power  of  Railroad   Corporation,  221. 
(aa)   In  General,  221. 

(3)  Under   Statutes,   222. 
I.  Freight  and  Charges  of  Carrier,  223. 

2.  Liability  of  Connecting  Carrier,  223. 

7.  Recovery  Back  of  Freight  Charges   Improperly  Collected,  223. 

8.  Compensation   for   Stoppage   in   Transit  for  Inspection,  etc.,  223. 

IV.  Carriers  of  Live  Stock,  223. 

A.  Duties  and  Liabilities  in  General,  223. 

216 


Vol.  III.  CARRIERS.  565-571 

C.  Duty  to  Unload.  Feed,  Water  and  Rest  Stock,  223. 

F.  Damages  for  Injuries  in  Course  of  Transportation,  224. 

V.  Regulation  of  Carriers,  224. 

A.  Regulation  by   State,  224. 

1.  Amount  of  Charges,  224. 

a.  Power  of  State,  224. 

(1)  Nature  and  Extent  of  Power,  224. 
(a)    In   General,  224. 

b.  Alode  of  Regulation,  224. 

(2)  By  Railroad  Commission,  224. 
(a)   In   General,   224. 

c.  Reasonableness  and  Validity  of  Regulation,  225. 

(2)  Mode   of    Determining   Reasonableness,   225. 

(a)   Carrier  Entitled  to  Fair  Return  on  Investment,  225. 
aa.  In  General,  225. 
(1)   Reasonableness  a  Judioial  Question,  225. 
aa.  In  General,  225. 

(3)  Authority  and  Power  of  Railroad  Commission,  225. 

f.  Relief  against  Enforcement  of  Rates  Fixed  by  Legislature  or 
Commission,  225. 

(1)  Right  to  and  Mode  of  Obtaining  Relief.  225. 
(a)   Relief  to  Carrier,  225. 

bb.  Rates  Fixed  by  Railroad  Commission,  225. 

(2)  Jurisdiction,  226. 

2.  Discrimination  in  Charges  or  Facilities,  226. 

b.  Discrimination  in  Favor  of  One  of  Several  Connecting  Car- 
riers, 226. 

(2)  Providing   Stations   and    Interchanging   Freight,  226. 

(3)  Requiring  Delivery  and  Receipt  of  Cars  between  Con- 

necting Carrier,  226. 
e.  Requiring  Connection  between  Trains  or  Roads,  227. 

B.  Regulation  by  United  States,  227. 

CROSS  REFERENCES. 

See  the  title  Carriers,  vol.  3,  p.  556,  and  references  there  given. 

I.  Definitions  and  General  Considerations. 

A.  Who  Are  Common  Carriers — 7.  Duty  to  Engage  in  Business. — Xo 
one  can  be  compelled  to  engage  in  the  business  of  a  common  carrier,  but  if  he 
does  so,  he  becomes  subject  to  the  duties  imposed  on  common  carriers.^^ 

II.  Carriers  of  Passengers. 

E.  Tickets  and  Fares — 2.  Coxditioxs  in  Ticket — d.  Transferability —\ 
common  carrier  has  the  right  to  sell  nontransferable  reduced  rate  excursion 
tickets.'"''^  The  nontransferability  and  forfeiture  embodied  in  such  tickets^  is 
not  only  binding  upon  the  original  purchaser  and  any  one  subsequently  acquiring 
them,3fb  but,  under  the  provisions  of  §  22  of  the  act  to  regulate  commerce,  24 

565-6a.    Duty  to  engage    in    business. —  St.   Louis,   etc..   R.   Co.,   127  U.   S.  390,  32 

Missouri    Pac.    R.    Co.    v.    Larabee    Flour  L.  Ed.  249.                                             . 

Mills  Co.,  211  U.  S.  612,  53  L.  Ed.  352,  29  571-37b.    Binding  effect— On   third  per- 

S    Ct.  214.  sons. — Bitterman  v.  Louisville,  etc.,  R.  Co., 

571-373.     Transferability.— Bitterman    v.  207  U.  S.  205,  52  L.  Ed.  171.  28  S.  Ct.  91. 

Louisville,  etc.,   R.   Co.,  207  U.   S.   205.  52  A     carrier     may     sell     nontransferable 

L.  Ed.  171,  28  S.  Ct.  91,  citing  Mosher  v.  round-trip,  reduced-rate  excursion  tickets. 

217 


571 


CARRIERS. 


Vol.  III. 


Stat.  387,  25  Stat.  862,  it  is  the  duty  of  the  railroad  company  to  prevent  the 
wrongful  use  of  such  tickets  and  the  obtaining  of  a  preference  thereby  by  any- 
one other  than  the  original  purchaser.-""'^  And  it  may  well  be  questioned  whether 
the  purchaser  of  such  ticket  acquires  anything  more  than  a  limited  and  qualified 
ownership  thereof,  and  whether  the  carrier  does  not,  for  the  purpose  of  enforc- 
ing the  forfeiture,  retain  a  subordinate  interest  in  the  ticket  amounting  to  a  right 
of  property  therein  which  a  court  of  equity  would  protect.^'^'* 

4.  Purchase  and  Sale  oe  Nontranseerable  Tickets — Ticket  Scalpers. — 
An  actionable  wrong  is  committed  by  one  who  maliciously  interferes  in  a  con- 
tract between  two  parties  and  induces  one  of  them  to  break  that  contract  to  the 
injury  of  the  other. •'•'*^  This  principle  applies  to  carrying  on  the  business  of  pur- 
chasing and  selling  nontransferable  reduced  rate  railroad  tickets  for  profit  to 
the  injury  of  the  railroad  company  issuing  them,  and  this  even  though  the  ingre- 
dient of  actual  malice,  in  the  sense  of  personal  ill-will,  does  not  exist. •■^^'' 

Power  of  Equity  to  Grant  Relief. — When  the  dealings  of  a  class  of  spec- 
ulators in  nontransferable  tickets  have  assumed  great  magnitude,  involving  large 
cost  and  risk  to  the  railroad  company  in  preventing  the  wrongful  use  of  such 
tickets,  and  the  parties  so  dealing  in  them  have  expressly  declared  their  intention 
of  continuing  so  to  do,  a  court  of  equity  has  power  to  grant  relief  by  injunc- 
tion.•'^*'=     No  adequate  remedy  at  law  exists  in  such  cases  which  will  deprive  the 


and  the  condition  of  nontransferability  and 
forfeiture  embodied  therein  is  not  only 
binding  upon  the  original  purchaser,  but 
upon  anyone  who  acquires  such  a  ticket 
and  attempts  to  use  the  same  in  violation 
of  its  terms.  Judgment,  Louisville  &  N. 
R.  Co.  V.  Bitterman,  144  F.  34,  75  C.  C. 
A.  192,  af^rmed.  Bitterman  v.  Louisville, 
etc.,  R.  Co.,  207  U.  S.  205,  52  L.  Ed.  171, 
28   S.   Ct.   91. 

571-37C.  Duty  of  carrier  to  prevent  trans- 
fer and  use. — The  express  recognition  in 
the  act  to  regulate  commerce  of  the  power 
of  carriers  engaged  in  interstate  commerce 
to  issue  nontransferable  reduced-rate  ex- 
cursion tickets,  when  considered  with  the 
restrictions  embodied  in  the  act  concern- 
ing equality  of  rates,  and  with  the  prohibi- 
tion against  preferences,  must  be  regarded 
as  charging  the  carrier  with  the  duty  of 
exercising  due  diligence  to  prevent  the 
use  of  such  tickets  by  other  than  the 
original  purchasers,  and  hence  causes  the 
nontransferable  clause  to  be  operative  and 
effective  against  anyone  who  wrongfully 
attempts  to  use  such  tickets.  Judgment, 
Louisville  &  N.  R.  Co.  v.  Bitterman  (1906), 
144  F.  34,  75  C.  C.  A.  192,  affirmed.  Bitter- 
man V.  Louisville,  etc.,  R.  Co.,  207  U.  S. 
205,  52  L.  Ed.  171,  28  S.  Ct.  91. 

571-37d.  Ownership — Interest  of  car- 
rier.— Bitterman  v.  Louisville,  etc.,  R.  Co., 
207  U.  S.  205,  222,  52  L.  Ed.  171,  28  S.  Ct. 
91;  Board  v.  Christie  Grain,  etc.,  Co.,  198 
U.  S.  236,  49  L.  Ed.  1031,  and  authorities 
there  cited.  See,  also,  Sperry  &  Hutchin- 
son Co.  V.  Mechanics'  Clothing  Co.,  128 
Fed.   Rep.  800. 

571-38a.  An  actionable  wrong. — Bitter- 
man V.   Louisville,   etc.,   R.   Co.,  207    U.   S. 


205,  52  L.  Ed.  171,  28  S.  Ct.  91,  citing 
Angle  V.  Chicago,  etc.,  R.  Co.,  151  U;  S. 
1,   38   L.    Ed.   55. 

As  to  power  of  United  States  court  to 
discharge  on  habeas  corpus  a  person  ar- 
rested under  the  state  law  for  illegally 
selling  tickets,  see  post^  HABEAS  COR- 
PUS. 

571-38b.  Action  for  sale  of  ticket. — 
Carrying  on  the  business  of  purchasing 
and  selling  nontransferable  reduced-rate 
excursion  railroad  tickets  for  profit,  to 
the  injury  of  the  railroad  company  issuing 
such  tickets,  is  an  actionable  wrong,  al- 
though actual  malice  in  the  sense  of  per- 
sonal ill-will  may  not  exist.  Judgment, 
Louisville  &  N.  R.  Co.  v.  Bitterman 
(1906),  144  F.  34,  75  C.  C.  A.  192,  affirmed. 
Bitterman  v.  Louisville,  etc.,  R.  Co.,  207 
U.  S.  205,  52  L.  Ed.  171,  28  S.  Ct.  91. 

571-38C.  Power  of  equity  to  grant  relief. 
— Bitterman  c'.  Louisville,  etc.,  R.  Co.,  207 
U.  S.  205,  52  L.  Ed.  171,  28  S.  Ct.  91.  See 
post,  INJUNCTIONS. 

Every  injunction  contemplates  the  en- 
forcement, as  against  the  party  enjoined, 
of  a  rule  of  conduct  for  the  future  as  to 
the  wrongs  to  which  the  injunction  re- 
lates, and  a  court  of  equity  may  extend  an 
injunction  so  as  to  restrain  the  defend- 
ants from  dealing  not  only  in  nontrans- 
ferable tickets  already  issued  by  com- 
plainant, but  also  in  all  tickets  of  a  similar 
nature  which  shall  be  issued  in  the  future; 
and  the  issuing  of  such  an  injunction  does 
not  amount  to  an  exercise  of  legislative, 
as  distinct  from  judicial,  power  and  a  de- 
nial of  due  process  of  law.  Bitterman  v. 
Louisville,  etc.,  R.  Co..  207  U.  S.  205,  52 
L.   Ed.   171,  28   S.   Ct.   91. 


218 


Vol.  III.  CARRIERS.  571-590 

company  of  its  right  to  resort  to  equity  to  restrain  such  wrong  deahngs.-"''^'* 

G.    Duty  as  to  Passenger  Alighting  from  Train. — See  note  70. 

H.  Duties  and  Rights  as  to  Stations  and  Terminals — 1.  Duty  to  Pro- 
vide Safe  Station. — Where  the  plaintitl  is  not  a  trespasser,  if  he  intends  to 
become  a  passenger  and  has  come  to  a  place  recognized  by  the  practice  of  the 
defendant  as  a  convenient  and  suitable  one  from  which  to  enter  the  car,  and  the 
car  stops  to  receive  him,  the  defendant  owes  him  an  affirmative  duty,  and  is 
liable  for  an  injury  to  him  which  is  the  proximate  result  of  the  carrier's  negli- 
gence.'^^ 

L.  Contributory  Negligence  of  Passenger — }/,.  In  General. — It  is  not 
clear  that  the  plaintiff's  negligence  is  necessarily  the  proximate  cause  of  the  in- 
jury, although  he  may  have  not  been  free  from  fault.  If  he  carelessly  placed 
himself  in  a  position  exposed  to  danger,  and  it  is  discovered  by  the  defendant  in 
time  to  avoid  the  injury  by  the  use  of  reasonable  care  on  its  part,  and  the  de- 
fendant fails  to  use  such  care,  that  failure  may  be  found  to  be  the  sole  cause  of 
the  resulting  injury.^-^^     Such  questions  is  one  for  the  jury  to  decide. ^^^'^ 

Acting  According  to  Custom. — A  person  is  not,  as  a  matter  of  law,  guilty  of 
such  contributory  negligence  in  following  the  customary  practice  sanctioned  by  a 
street  car  company  of  standing  upon  the  platform  between  the  two  inner  rails  at 
a  usual  stopping  place,  awaiting  an  approaching  car,  as  precludes  a  recovery  for 
injuries  sustained  from  being  struck  by  a  car  which  ran  by  this  stopping  place 
on  the  other  track  at  full  speed,  where  the  space  between  the  rails,  though  leav- 
ing but  a  narrow  margin  of  safety,  was  wide  enough  to  permit  a  person  standing 
directly  in  the  center  to  escape  injury.^^"^ 

III.  Carriers  of  Goods. 

A.  Duty  to  Receive  and  Carry — 1.  In  Gener-vl. — Whenever  one  engages 
in  the  business  of  a  common  carrier,  the  obligation  of  equal  service  to  all  arises.^"^ 
Even  in  the  absence  of  legislative  enactment  or  special  contract,  a  common  car- 
rier is  bound  to  treat  all  shippers  alike  and  can  be  compelled  to  perform  this 
common-law  duty  by  mandamus  or  other  proper  writ.^-^'' 

571-38d.  No  adequate  remedy. — Bitter-  persons  can  plainly  be  seen  standing 
man  i'.  Louisville,  etc.,  R.  Co.,  207  U.  S.  upon  the  platform  between  the  inner  rails, 
205,  206,  52  L.  Ed.  171,  28  S.  Ct.  91.  See  awaiting  a  car  approaching  from  the  op- 
post.    IXJUXCTIONS.  posite  direction,  is  a  question  for  the  jury, 

577-70.    Duty  as  to  alighting  passenger,  where   the   street  car  company  had   sanc- 

— Atchison,  etc.,  R.  Co.  z'.  Calhoun,  213  U.  tioned    such    a    practice    on    the    part    of 

S.  1,  53  L.  Ed.  671,  29  S.  Ct.  321.  intending    passengers,   and   the    space   be- 

577-72a.  Duty  to  provide  safe  place  for  iween  the  rails,  while  wide  enough  to  en- 
boarding  cars. — Chunn  f.  City,  etc..  Rail-  able  a  person  standing  in  the  center  to  es- 
way,  207  U.  S.  302,  307,  52  L.  Ed.  219,  28  cape  injury,  left  but  a  narrow  margin  of 
S.   Ct.   63.     See  post,   NEGLIGENCE.  safety.     Judgment    (1904),  23   App.   D.   C. 

579-83a.    Contributory  negligence  in  gen-  551,    reversed.     Chunn   v.   City,   etc.,   Rail- 

eral.— Chunn  v.  City,  etc..  Railway.  207  U.  way.   207    U.    S.   302,   52    L.    Ed.   219,   28    S. 

S.    302,    309,    52   L.    Ed.   219,   28    S.    Ct.    63;  Ct.   63. 

Inland,   etc.,   Coasting  Co.  v.  Tolson,   139  579-83c.    Acting  according  to  custom.— 

U.  S.  551,  35  L.  Ed.  270;  Grand  Trunk  R.  Chunn    z\    City,    etc.,    Railway,    207    U.    S. 

Co.  V.   Ives,  144  U.   S.   408,   429,   36   L.    Ed.  302,  52   L-   Ed.  219,  28   S.  Ct.  63,  reversing 

485;   Washington,  etc.,  R.  Co.  v.  Harmon,  23  App.  D.  C.  551. 

147  U.  S.  571,  583,  37  L.   Ed.  284;  Tuff  z'.  590-55a.    Duty  to  receive  and  carry  for 

Warman,  5  C.  B.  N.  S.  573;  Radley  t-.  Lon-  all  alike.— Missouri  Pac.  R.  Co.  z:  Larabee 

don  &  North  Western  Railway  Co.,  1  App.  Flour  Mills  Co.,  211   U.   S.  612,  619,  53   L. 

Cas.    754;    Thompson    on  .  Negligence    (2d  Ed.  352,  29  S.  Ct.  214. 

Ed.).  §§  238.  239;  Pollock  on  Torts  (6th  590-55b.  Enforcement  of  duty.— Mis- 
Ed.),  pp.  441  to  447  inclusive.  See  post.  souri  Pac.  R.  Co.  z'.  Larabee  Flour  Mdls 
NEGLIGENCE.  Co.,   211    U.   S.   612,  53   L.   Ed.   352,  29   S. 

579-83b.  Question  for  jury.— Whether  it  Ct.  214. 

is    negligence   to   run   a    street   car   at   full  A  common  carrier  may  be  compelled  by 

speed   past   a   usual    stopping   place   when  mandamus  or  other  writ  to  treat  all  ship- 

219 


593-595 


CARRIERS. 


Vol.  III. 


E.  Duties  and  Liabilities  in  Course  of  Transportation — 1.  In  General. 
— See  post,  "Delay  in  Transportation,"  III,  E,  8. 

Liability  of  Connecting  Carriers. — As  to  liability  of  initial  carrier  for  loss 
or  damages  arising  on  line  of  intermediate  or  last  carrier,  see  post,  "Liability  of 
Initial  Carrier,"  III,  H,  1.  As  to  liability  of  intermediate  or  last  carrier,  see 
post,  "Liability  of  Connecting  Carrier,"  III,  H,  2. 

2.  Care  Required  of  Carrier — a.  General  Rule — Liability  That  of  Insurer. 
— Tbe  rule  of  the  common  law,  which  treated  a  common  carrier  as  an  insurer, 
grew  out  of  a  situation  which  required  that  kind  of  security  for  the  protection  of 
the  public.'^^'^ 

b.  Circumstances  Bxempting  Carrier  from  Liability  as  Insurer — (6)  Duty  to 
Resist  Judicial  Process. — The  duty  of  the  carrier  to  carry  safely  and  to  deliver 
promptly  to  the  consignee  the  goods  entrusted  to  it  does  not  require  it  to  resist 
forcibly  judicial  proceedings  in  the  courts  of  the  state  into  or  through  which  the 
goods  are  carried. ^^'^  While  the  carrier  may  appear  and  contest  the  validity  of 
a  seizure  under  judicial  process  of  goods  in  its  custody,  if  it  seasonably  notify 
the  owner  and  call  upon  him  to  defend,  it  is  relieved  from  further  responsibility; 
and,  in  absence  of  fraud  or  connivance  on  its  part,  it  may  plead  the  judgment 
rendered  against  it  as  a  bar  in  an  action  brought  by  the  owner.^^''  But  if  the 
carrier,  through  connivance  or  fraud,  permits  a  judgment  to  be  rendered  against 
it,  such  judgment  can  not  be  invoked  by  it  as  a  bar  to  an  action  brought  by  the 
owner  of  the  goods. ^^° 

6.    Loss  BY  Deviation. — See  note  88. 

Deviation  in  Case  of  Necessity. — The  duty  that  may  rest  on  a  carrier  under 
normal  conditions  to  transport  merchandise  by  a  particular  and  the  most  ad- 
vantageous route  is  restrained  and  limited  by  the  right  of  the  carrier,  in  case  of 


pers  alike.  Judgment,  Larabee  Flour  Mills 
Co.  V.  Missouri  Pac.  Ry.  Co.,  88  P.  72, 
74  Kan.  808,  affirmed.  Missouri  Pac.  R. 
Co.  V.  Larabee  Flour  Mills  Co.,  211  U. 
S.  612,  53  L.  Ed.  3.52,  29  S.  Ct.  214. 

593-70a.  Liability  that  of  insurer. — At- 
lantic Coast  Line  R.  Co.  v.  Riverside  Mills, 
219  U.  S.  186,  208,  55  L  Ed.  167,  31  S. 
Ct.   164. 

"To  quote  the  quaint  but  expressive 
words  of  Lord  Holt,  in  Coggs  v.  Bernard, 
2  Ld.  Raymond,  909,  when  defending  and 
applying  the  doctrine  of  absolute  liability 
against  loss  not  due  to  the  act  of  God  or 
the  public  enemy,  'this  rule,^  said  he,  'is 
a  politick  establishment  contrived  by  the 
policy  of  the  law  for  the  safely  of  all 
persons,  the  necessity  of  whose  afifairs 
oblige  them  to  trust  these  sort  of  persons 
that  they  may  be  safe  in  their  ways  of 
dealing.'  "  Atlantic  Coast  Line  R.  Co.  v. 
Riverside  Mills,  219  U.  S.  ISfi,  20.5,  55  L. 
Ed.  167.  31  S.  Ct.  164. 

595-8la.  Duty  to  resist  judicial  process. 
— American  Exp.  Co.  v.  MuUins,  212  U.  S. 
311,  53  L.  Ed.  525,  29  S.  Ct.  381. 

595-81b.  Rights  of  carrier  when  judicial 
process  interferes. — "It  might  also  notify 
the  owner  of  the  property  and  call  upon 
him  to  carry  on  the  litigation.  This  it  did; 
notified  him  in  time,  and  received  from 
him  an  assurance  that  he  would  contest 
the  legality  of  the  seizure.  This  relieved 
the   company   from   further   responsibility. 


and  the  owner  can  no  longer  complain  of 
it  because  the  judgment  of  the  Kansas 
court  seized  and  disposed  of  the  prop- 
erty." American  Exp.  Co.  v.  Mullins,  212 
U.  S.  311,  315,  53  L.  Ed.  525,  29  S.  Ct. 
381;  Stiles  v.  Davis,  1  Black  101,  17  L.  Ed. 
33;  Wells  v.  Maine  Steamship  Company, 
4  Clifif.  228;  Edwards  z'.  White  Line  Tran- 
sit Company,  104  Massachusetts,  159; 
Bliven  t'.  Hudson  River  R.  R.  Co..  36  N.  Y. 
403;  Ohio  &  Mississippi  Ry.  Co  v.  Yohne, 
51  Indiana,  181;  Savannah,  etc.,  R.  R.  Co. 
V.  Wilcox,  Gibbs  &  Co.,  48  Georgia.  432; 
Railroad  Company  z:  O'Donnell,  49  Ohio 
St.  489,  501. 

595-810.    Effect  of  fraudulent  judgment. 

—American  Exp.  Co.  v.  Mullins,  212  U.  S. 
311,  314,  53  L.  Ed.  525.  29  S.  Ct.  381;  Har- 
ris V.   Balk,  198  U.  S.  215,  49   L   Ed.  1023. 

595-88.  Deviation — Under  usage  of  trade. 

— "By  the  admiralty  law,  a  departure  from 
the  regular  course  of  a  shipment  when 
done  under  the  usage  of  trade  is  no  de- 
viation. Hostetter  v.  Park,  137  U.  S. 
30.  40.  34  L.  Ed.  568.  So,  also,  in  Con- 
stable V.  National  Steamship  Co.,  154  U. 
S.  51,  52,  38  L.  Ed.  903,  it  was  said:  'In 
the  law  maritime  a  deviation  is  defined  as 
a  "voluntary  departure  without  necessity 
or  any  reasonable  cause,  from  the  regular 
and  usual  course  of  the  ship  issued."  ' " 
Empire  State  Cattle  Co.  v.  Atchison,  etc., 
R.  Co..  210  U.  S.  1,  21,  52  L  Ed.  931,  28 
S.   Ct.  607. 


220 


A'ol.  III. 


CARRIERS. 


596-610 


necessity,  to  resort  to  such  other  reasonably  direct  route  as  may  be  available 
under  the  existing  conditions  to  carry  the  freight  to  its  destination,  and  if  such 
necessity  exists,  in  the  absence  of  negligence  in  selecting  the  changed  route,  the 
carrier  is  not  responsible  for  damages  resulting  from  the  change  even  if  such 
change  may  be,  in  law,  a  concurring  and  proximate  cause  of  such  damages.^^^ 

8.  Delay  in  Transportation. — The  implied  agreement  of  a  common  carrier 
is  to  carry  safely  and  deliver  at  destination  within  a  proper  time;  evidence  of 
diligence  and  no  unreasonable  delay  excuses. ^^^^  It  is  otherwise  when  the  action 
is  for  a  breach  of  a  contract  to  carry  within  a  particular  time,  or  to  make  a  par- 
ticular connection,  or  to  carry  by  a  particular  train.  The  railroad  company,  by 
its  contract,  becomes  liable  for  the  consequence  of  a  failure  to  transport  accord- 
ing to  its  terms.    Evidence  of  diligence  will  not  excuse.^"^ 

10.  Stoppage  in  Transit  for  Inspection  or  Reconsignment. — The  stop- 
ping of  a  commodity  in  transit  for  the  purpose  of  treatment  or  reconsignment 
is  in  the  nature  of  special  privilege  which  the  carrier  may  concede,  but  whicli 
the  shipper  can  not,  in  the  present  state  of  the  law,  demand  as  a  matter  of  lawful 
right. ^^^  Carriers  may  not,  however,  discriminate  between  markets  nor  between 
individuals  in  the  granting  of  such  privileges. ^^"^ 

P.  Delivery  by  Carrier — 1.  Necessity  for  Delivery. — See  note  1. 

H.  Connecting'  Carriers — 1.  Liability  of  Initial  Carrier — a.  Loss  or 
Damage  on  Its  Ozvn  Line. — See  note  51. 

b.  Duty  to  Deliver  to  or  Notify  Connecting  Carrier — (1)  In  General. — See 
note  52. 

c.  Liability  for  Loss  or  Damage  on  Route  of  Connecting  Carrier — (1)  In  Ab- 
sence of  Contract. — See  note  59. 

(2)  Under  Contract  for  Through  Carriage — (a)  Pozver  to  Make  Contract — 
aa.  Pozver  of  Railroad  Corporation — (aa)  In  General. — See  note  60. 


596-88a.    Deviation  in  case  of  necessity. 

— Empire  State  Cattle  Co.  v.  Atchison, 
etc.,  R.  Co.,  ^10  U.  S.  ],  52  L.  Ed.  931.  28 
S.    Ct.    607. 

Deviation  by  a  carrier  of  live  stock  from 
the  usual  and  most  direct  route  because 
of  a  washout  on  a  connecting  line,  and 
the  bad  condition  of  its  own  tracks,  will 
not,  in  the  entire  absence  of  all  negli- 
gence in  selecting  the  new  route,  which  is 
as  reasonably  direct  as  is  available  under 
existing  conditions  render  the  carrier  li- 
able for  a  loss  occasioned  by  a  flood  at  a 
point  on  such  new  route.  Judgments 
(1906),  147  F.  457,  77  C.  C.  A.  601,  and  147 
F.  463,  77  C.  C.  A.  607,  affirmed.  Empire 
State  Cattle  Co.  v.  Atchison,  etc.,  R.  Co., 
210  U.  S.  1,  52  L.  Ed.  931,  28  S.  Ct.  607. 

597-95a.  Delay  in  transportation. — Chi- 
cago, etc.,  R.  Co.  ■?■.  Kirby,  225  U.  S.  155, 
56    L.    Ed.    1033.   32    S.    Ct.   648. 

597-95b.  Contract  to  carry  with  particu- 
lar time. — Chicago,  etc.,  R.  Co.  v.  Kirby, 
225  U.  S.  155,  164,  56  L.  Ed.  1033,  32  S. 
Ct.  648. 

"The  company,  by  entering  into  an 
agreement  for  expediting  the  shipment, 
came  under  a  liability  different  and  more 
Intrdensome  than  would  exist  to  a  shipper 
who  made  no  such  special  contract."  Chi- 
cago, etc.,  R.  Co.  V.  Kirby,  225  U.  S.  155, 
164,  56  L.  Ed.  1033.  32  S.  Ct.  648. 

598-99a.    Stoppage  in  transit. — Southern 


R.  Co.  V.  St.  Louis  Hay,  etc.,  Co.,  214  U- 
S.  297,  300,  53  L.  Ed.  1004,  29  S.  Ct.  678. 

As  to  compensation  for  this  privilege, 
see  post,  "Compensation  for  Stoppage  in 
Transit  for  Inspection,  etc.,"  Ill,  I,  8. 

598-99b.  Discrimination  as  to  privilege. 
— Southern  R.  Co.  v.  St.  Louis  Hay,  etc., 
Co.,  214  U.  S.  297,  300,  53  L.  Ed.  1004,  29 
S.  'Ct.   678. 

598-1.  Necessity  for  delivering. — The 
implied  agreement  of  a  common  carrier  is 
not  only  to  carry  safely  but  to  deliver  at 
destination  within  a  proper  time.  Chi- 
cago, etc.,  R.  Co.  V.  Kirby,  225  U.  S.  155, 
56  L.   Ed.   1033,  32   S.   Ct.   648.  _ 

608-51.  Loss  or  damage  on  its  own  line. 
— .Atlantic  Coast  Line  R.  Co.  v.  Riverside 
Mills,  219  U.--  S.  186,  197,  55  L.  Ed.  167,  31 
S.  Ct.  104. 

609-52.  Duty  to  deliver  or  notify  con- 
necting carrier. — Atlantic  Coast  Line  R. 
Co.  V.  Riverside  Mills,  219  U.  S.  186,  197, 
55  L.  Ed.  167.  31  S.  Ct.  164. 

610-59.  Liability  in  absence  of  contract. 
— Atlantic  Coast  Line  R.  Co.  v.  Riverside 
Mills,  219  U.  S.  186,  196,  55  L.  Ed.  167,  31 
S.   Ct.   164. 

610-60.  Special  contract  for  through 
carnage. — "The  general  doctrine  accepted 
by  this  court,  in  the  absence  of  legislation. 
is,  that  a  carrier,  unless  there  be  a  special 
contract,  is  only  bound  to  carry  over  its 
own  line  and  then  deliver  to  a  connecting 


221 


611-613 


CARRIERS. 


Vol.  III. 


Effect  of  Provision  in  Bill  of  Lading. — A  provision  in  a  bill  of  lading  is- 
sued by  the  initial  carrier  that  it  should  not  be  liable  for  loss  or  damage  not 
occurring  on  its  portion  of  the  route  is  not  a  contract  of  exemption  from  its 
own  liability  as  a  carrier,  but  a  provision  of  nonassumption  of  the  liabilities  of 
others  and  at  common  law  relieves  it  of  such  liabilities.'' i'' 

(3)  Under  Statutes. — Carmack  Amendment  to  Interstate  Commerce  Act. 
— Congress  has  power  to  prohibit  a  carrier-  engaged  in  interstate  commerce  from 
limiting  by  contract  its  liability  beyond  its  own  line,  and  the  Carmack  amend- 
ment of  January  29,  1906,  c.  3591,  34  Stat.  584,  595,  to  §  20  of  the  Interstate 
Commerce  Act,  making  such  carriers  liable  for  loss  or  damage  to  merchandise 
ieceived  for  interstate  transportation  beyond  their  own  lines,  notwithstanding 
any  contract  of  exemption  in  the  bill  of  lading,  is  a  valid  exercise  of  such  pov/er 
■and  is  not  in  conflict  with  the  due  process  provision  of  the  fifth  admendment.'^^^ 


carrier.  Thai  such  an  initial  carrier  might 
contract  to  carry  over  the  whole  route 
was  never  doubted.  It  is  equally  indis- 
putable that  if  it  does  so  contract,  its  com- 
mon-law carrier  liability  will  extend  over 
the  entire  route."  Atlantic  Coast  Line  R. 
Co.  V.  Riverside  Mills,  219  U.  S.  186,  197, 
55  L.  Ed.  167,  31  S.  Ct.  164,  citing  Railway 
Co.  V.  McCarthy,  96  U.  S.  258,  266,  24  L. 
Ed.  693;  Railroad  Co.  v.  Pratt,  22  Wall. 
123,  22  L.  Ed.  827;  Northern  Pac.  R.  Co. 
7'.  American  Trading  Co.,  195  U.  S.  439, 
49  L.  Ed.  269;  Muschamp  v.  Lancaster 
Railway  Co.,  8  M.  &  W.  421. 

"Independently  of  statute  the  carrier, 
when  tendered  property  for  such  trans- 
portation, might  elect  to  contract  to  carry 
to  destination,  in  which  case  it  necessarily 
agreed  to  do  so  through  the  agency  of 
other  and  independent  carriers  in  the 
line;  or,  it  might  elect  to  carry  safely  over 
its  own  lines  only  and  then  deliver  to  the 
next  carrier,  who  would  then  become  the 
agent  of  the  shipper.  In  the  first  case  the 
receiving  carrier's  liability,  as  carrier,  ex- 
tends over  the  whole  route,  for,  on  pb- 
vious  grounds,  the  principal  is  liable  for 
the  acts  of  its  agent.  In  the  other  case  its 
carrier  liability  ends  at  its  own  terminal, 
and  its  further  liability  is  merely  that  of 
a  forwarder."  Atlantic  Coast  Line  R.  Co. 
7-.  Riverside  IMills,  219  U.  S.  186,  196,  55 
L.  Ed.  167,  31   S.   Ct.  164. 

611-6la.  Effect  of  provision  in  bill  of 
lading. — Atlantic  Coast  Line  R.  Co.  v. 
Riverside  Mills,  219  U.  S.  186,  55  L.  Ed. 
167,  31   S.  Ct.  164. 

"At  the  common  law,  an  initial  carrier 
under  such  a  state  of  facts  would  not  be 
liable  for  a  loss  through  the  fault  of  a 
connecting  carrier  to  whom  it  had,  in  due 
course,  safely  delivered  the  goods  for 
further  transportation."  Atlantic  Coast 
Line  R.  Co.  7'.  Riverside  Mills.  219  U.  S. 
186,  195,  55  L.  Ed.  167,  31  S.  Ct.  164,  cit- 
ing Railroad  Co.  v.  Pratt.  22  Wall.  123, 
22  L.  Ed.  827;  Myrick  v.  Michigan  Cent. 
R.  Co.,  107  U.  S.  102,  27  L.  Ed.  325; 
Southern  Pac.  R.  Co.  v.  Interstate  Com- 
merce Comm..  200  U.  vS.  536,  554,  50  L. 
Ed.  585. 


613-75a.  Under  statutes  —  Carmack 
Amendment. — Atlantic  Coast  Line  R.  Co. 
7-.  Riverside  Mills,  219  U.  S.  186,  55  L.  Ed. 
167,  31  S.  Ct.  164;  Galveston,  etc.,  R.  Co. 
7'.  Wallace,  223  U.  S.  481,  56  L.  Ed.  516, 
32  S.  Ct.  205.  See  post,  CONSTITU- 
TIONAL LAW;  INTERSTATE  AND 
FOREIGN  COMMERCE. 

Initial  carrier  liable  as  principal. — Un- 
der the  Carmack  amendment  to  the  In- 
terstate Commerce  Act,  the  initial  carrier 
is,  as  principal,  liable  not  only  for  its  own 
negligence,  but  that  of  any  agency  which 
it  may  use.  Atlantic  Coast  Line  R.  Co. 
7'.  Riverside  Mills,  219  U.  S.  186,  55  L.  Ed. 
167,  31   S.   Ct.  164. 

Effect  of  voluntary  acceptance  of 
through  shipment. — Under  the  Carmack 
amendment,  wherever  the  carrier  volun- 
tarily accepts  goods  for  shipment  to  a 
point  on  another  line  in  another  state,  it 
is  conclusively  treated  as  having  made  a 
through  contract.  "  Atlantic  Coast  Line  R. 
Co.  7'.  Riverside  Mills,  219  U.  S.  186,  55 
L.  Ed.  167,  31  S.  Ct.  164.  It  thereby 
elects  to  treat  connecting  carriers  as  its 
agents  and  the  presumptions  are  that  if 
goods  are  lost  results  from  the  negligence 
of  itself  or  of  its  agents.  Galveston,  etc.. 
R.  Co.  7'.  Wallace,  223  U.  S.  481,  56  L. 
Ed.   516,   32   S.   Ct.  205. 

"Congress  has  said  that  a  receiving  car- 
rier, in  spite  of  any  stipulation  to  the  con- 
trary, shall  be  deemed,  when  it  receives 
propert}^  in  one  state  to  be  transported  to 
a  point  in  another  involving  the  use  of  a 
connecting  carrier  for  some  part  of  the 
way,  to  have  adopted  such  other  carrier 
as  its  agent,  and  to  incur  carrier  liability 
throughout  the  entire  route,  with  the 
right  to  reimbursement  for  a  loss  not  due 
to  his  own  negligence."  Atlantic  Coast 
Line  R.  Co.  7-. '^Riverside  Mills.  219  U.  S. 
186,  205,   55   L.    Ed.   167.  31    S.   Ct.    164. 

Stipulation  against  liability  for  damage 
not  caused  by  negligence. — And  the  ques- 
tion has  arisen  but  not  been  decided 
whether  the  Carmack  amendment  makes 
the  initial  carrier  an  insurer,  or  deprives 
it  of  the  right  to  contract  with  the  shipper 
against    liability    for   damages    not    caused 


222 


Vol.  III.  CARRIERS.  613-620 

Under  that  amendment,  when  a  carrier  accepts  goods  for  shipment  to  a  point 
on  another  hne  in  another  state,  the  burden  of  proof  falls  on  it  as  the  initial 
carrier  to  prove  that  the  loss  has  not  resulted  from  some  cause  for  which  it  is 
in  law  or  by  contract  responsible.'^^'' 

2.  Liability  of  Connecting  Carrier. — Though  the  receiving  carrier  is,  as 
principal,  liable  not  only  for  its  own  negligence,  but  for  that  of  any  agency  it 
may  use,  yet,  as  between  themselves,  the  company  actually  causing  the  loss 
may  be  primarily  liable."''"^ 

I.  Freight  and  Charges  of  Carrier. —  (7)  Recovery  Back  of  Freight 
Charges  Improperly  Collected. — A  carrier  is  not  liable  to  an  action  to  refund 
the  excess  over  an  illegal  special  rate  if  the  rate  actually  collected  is  the  ap- 
plicable legal  published  rate.^^^ 

,8.  Compensation  for  Stoppage  in  Transit  for  Inspection,  etc. — A  car- 
rier is  entitled  to  compensation  in  addition  to  the  actual  cost  involved  in  taking 
loaded  cars  in  transit  to  the  shipper's  warehouses  at  an  intermediate  point  for 
unloading,  inspection,  and  reloading,  and  taking  away  the  reloaded  cars, 
whether  or  not  the  carrier  is  under  any  obligation  to  extend  such  a  privilege  to 
shippers.'^-'' 

IV.  Carriers  of  Live  Stock. 

A.  Duties  and  Liabilities  in  General. — Where  a  flood  is  unexpected  and 
of  an  unprecedented  character  a  railroad  company  may  not,  under  the  circum- 
stances of  the  case,  be  chargeable  with  negligence  in  sending  cattle  trains  by 
another  route  or  for  failing  to  move  the  cattle  from  the  stock  yards  before  the 
climax  of  the  flood.^*^ 

C.  Duty  to  Unload,  Feed,  Water  and  Rest  Stock.— The  Act  of  June  29. 
1906,  c.  3594,  34  Stat.  607,  to  prevent  cruelty  to  animals  in  transit,  is  general 
and  applies  to  all  shipments  of  cattle  as  made.  The  statute  is  not  for  the  ben- 
efit of  shippers  but  is  restrictive  of  their  rights,  and  violations  are  not  to  be 
measured  by  the  number  of  shippers,  but  as  to  the  time  when  the  duty  is  to  be 
performed. '^^     Under  the  nearly  identical  Act  of  1873,  Rev.  Stat.,  §  4386,  it  was 

by  its  own  or  the  connecting  carrier's  neg-  297,  53  L.  Ed.  1004,  29  S.  Ct.  678,  reversing 

ligence.      Galveston,   etc.,    R.    Co.   z:    Wal-  153   Fed.  728,  82  C.  C.  A.  614. 

lace,   223   U.   S.   481,   56   L.    Ed.   516,   32   S.  If  stopping  freight  while  in   transit,   for 

Ct.  205.  inspection   and   reloading,   is   of  benefit   to 

613-75b.  Burden  of  proving  cause  of  loss.  the    shipper   and   involves   service   bj^   and 

— Galveston,    etc.,    R.    Co.   z:    Wallace,   223  expense    to    the    carrier    the    latter    is    not 

U.  S.  481,  56  L.  Ed.  516,  32  S.  Ct.  205.  limited   to    the    actual   cost    of   that   privi- 

It  was  not  only  the  legal  elements  of  lege,  and  it  is  justified  in  receiving  some 
the  situation,  but  also  the  fact  that  the  compensation  in  addition  thereto.  South- 
business  prosperity  of  the  country  largely  ern  R.  Co.  z\  St.  Louis  Hay,  etc.,  Co.,  21  i 
depends  on  through  rates  and  routes  of  U.  S.  297,  301,  53  L.  Ed.  1004,  29  S.  Ct.  6J8. 
transportation,  that  induced  congress  to  619-4a.  Duties  and  liabilities  of  carrier 
enact  such  regulations  in  regard  to  the  of  live  stock. — Empire  State  Cattle  Co.  z: 
duties  and  liabilities  of  interstate  carriers  Atchison,  etc..  R.  Co.,  210  U.  S.  1,  52  L. 
as   would   relieve    shippers    whose     goods  Ed.  931,  28  S.  Ct.  607. 

were   damaged  from  the  burden   of  prov-  620-8a.    Duty    to    feed,    water    and    rest 

ing     where     the    loss   occurred.      Atlantic  stock — Act  of  1906  construed.— Baltimore. 

Coast  Line  R.  Co.  v.  Riverside  Mills,  219  etc..  R.  Co.  v.  United  States,  220  U.  S.  94, 

U.    S.   186,   55   L.    Ed.   167,   31    S.    Ct.   164.  55    L.    Ed.   384,   31    S.    Ct.   368. 

614-76a.    Liability  of  connecting  carrier.  As  to  consolidation  of  actions,  see  post, 

—Atlantic  Coast  Line  R.  Co.  :•.  Riverside  COXSOLIDATIOX  OF  ACTIOXS. 

Mills,   219   U.    S.    186,   206,   55    L.    Ed.    167.  The    number    of    the    penalties    recover- 

31   S.   Ct.   164.  able   under   .A.ct   June   29,   1906,   c.   3594.   34 

617-92a.    Recovery  back  of  charges— II-  Stat.  607   (U.  S.  Comp.  St.  Supp.   1909,  p. 

legal  special  rate.— Kansas,  etc.,  R.  Co.  z:  1178),   making  28   hours   the  limit   of  con- 

Albers    Comm.    Co.,   223   U.    S.    573,    56   L.  finement   of   live   stock   in   transit   without 

Ed.  556,  32  S.  Ct.  316.  unloading,    and   prescribing   a   penalty    for 

617-92b.    Compensation  for  stoppage  in  every  failure  of  the  carrier  to  comply  with 

transit   for   inspection,   etc. — Southern     R  this   provision,   is   not   measured    by     the 

Co.   c'.  St.  Louis  Hay,  etc.,  Co.,  214  U.  S.  number   of   shipments  on   the   same  train, 

223 


620-629 


CARRIERS. 


Vol.  III. 


held  that  the  penalties  were  not  to  be  measured  by  the  number  of  cattle  in  the 
shipment,  nor  the  number  of  cars  in  which  they  were  transported.^" 

F.  Damages  for  Injuries  in  Course  of  Transportation. — See  ante,  "Duties 
and  Liabilities  in  General,"  IV,  A. 

V.  Regulation  of  Carriers. 

A.  Regulation  by  State — 1.  Amount  of  Charges — a.  Power  of  State — ^(1) 
Nature  and  Extent  of  Power — (a)  In  General. — Upon  the  admission  of  a  state 
into  the  Union,  reserving  the  riglit,  to  congress,  to  regulate  rates  until  the  state 
government  should  exist,  when  that  government  shall  possess  the  power  to  reg- 
ulate, the  whole  subject  of  domestic  rate  regulation  passes  under  the  control  of 
the  state  when  the  government  thereof  comes  into  existence.^'^'' 

b.  Mode  of  Regulation — (2)  By  Railroad  Commission — (a)  In  General. — The 
establishment  of  a  rate  is  the  making  of  a  rule  for  the  future,  and  therefore 
is  an  act  legislative  and  not  judicial  in  kind.'*^''     A  state  constitution,  if  it  sees 


nor  is  the  train  the  unit  of  offense,  but 
where  the  same  train  contains  live  stock 
loaded  at  different  periods,  one  penalty 
accrues  when  the  period  of  lawful  con- 
finement for  the  cattle  first  loaded  ex- 
pires, and  other  separate  and  distinct  pen- 
alties accrue  as  the  time  for  the  lawful 
confinement  of  the  cattle  loaded  at  later 
periods  successively  expires.  Baltimore, 
etc.,  R.  Co.  V.  United  States,  220  U.  S. 
94,  55  L.  Ed.  384,  31  S.  Ct.  308,  modifying 
judgment.  United  States  v.  Baltimore  & 
O.  S.  W.  R.  Co.,  159  F.  33,  86  C.  C.  A. 
223. 

But  one  penalty  may  be  recovered 
against  a  carrier  violating  the  provisions 
of  Act  June  29,  1906,  c.  3594,  34  Stat.  607 
(U.  S.  Comp.  St.  Supp.  1909,  p.  1178), 
making  28  hours  the  limit  of  confinement 
of  live  stock  in  transit  without  unloading, 
unless  extended  by  request  of  the  owner 
to  36  hours,  and  prescribing  a  penalty  for 
every  failure  of  the  carrier  to  comply  with 
this  provision,  where  the  time  for  the  re- 
quired unloading  of  two  shipments  loaded 
at  different  times  coincides,  because  one 
shipment  was  forwarded  under  the  36-liour 
rule,  and  the  other  was  made  eight  hours 
later,  under  the  28-hour  rule,  from  a  dif- 
ferent station.  Baltimore,  etc.,  R.  Co.  v. 
United  States,  220  U.  S.  94,  55  L.  Ed.  384, 
31  S.  Ct.  368,  modifying  Judg.  U.  S.  v. 
Baltimore  &  O.  S.  W.  R.  Co.,  159  F.  23, 
86   C.   C.   A.  223. 

620-8b.  Act  of  1873  construed.— Balti- 
more, etc.,  R.  Co.  V.  United  States,  220 
U.  S.  94,  103,  55  L.  Ed.  384,  31  S.  Ct.  368, 
citing  United  States  v.  Boston  &  Albany 
R.  R.  Co.,  15  Fed.  Rep.  209;  United  States 
V.  St.  Louis  R.  R.  Co.,  107  Fed.  Rep.  807.  _ 

623-16a.  Admission  of  state — Domestic 
rates  subject  of  state  control. — Upon  the 
admission  of  Oklahoma  into  the  Union 
under  Enabling  Act  June  16,  1906,  c.  3335, 
§  4,  34  Stat.  271,  §  4,  "on  an  equal  footing 
with  the  original  states,"  the  congressional 
requirement  that  the  Kansas  rates  should 
be  the  test  of  the  rates  which  the  South- 
ern    Kansas     Railway     Company     might 


charge  the  inhabitants  of  the  Indian  Ter- 
ritory, made  by  Act  Cong.  July  4,  1884,  c. 
]79,  23  Stat.  73,  reserving  to  congress  the 
right  to  regulate  rates  until  a  state  gov- 
ernment should  exist,  when  that  govern- 
ment should  possess  the  right  of  regula- 
tion, ceased  to  be  of  any  force,  and  the 
whole  subject  of  domestic  rates  passed 
under  the  control  of  the  state.  Okla- 
homa V.  Atchison,  etc.,  R.  Co.,  220  U.  S. 
277,  55  L.   Ed.  465,  31  S.  Ct.  434. 

Upon  the  admission  of  Oklahoma  into 
the  Union  under  Enabling  Act  June  16, 
1906,  c.  3335,  §  4,  34  Stat.  271,  the  con- 
gressional requirement  that  the  Kansas 
rates  should  be  the  test  of  the  rates  which 
the  Chicago,  Kansas,  &  Nebraska  Railway 
Company  might  charge  the  inhabitants  of 
the  Indian  Territory  for  domestic  ship- 
ments, made  by  Act  March  2,  1887,  c.  319, 
24  Stat.  446,  reserving  to  congress  the 
right  to  regulate  such  rates  until  a  state 
government  should  exist,  when  that  gov- 
ernment should  possess  the  right  of  regu- 
lation, ceased  to  be  of  any  force  in  the 
state,  and  the  whole  subject  of  domestic 
rates  passed  under  the  control  of  the 
state.  Oklahoma  v.  Chicago,  etc.,  R.  Co., 
220  U.  S.  302,  55  L.  Ed.  474,  31  S.  Ct.  442, 
affirming  judgment  in  Chicago,  R.  I.  & 
P.  Ry.  Co.  V.  Territory,  97  P.  267,  21  Okl. 
334.  See,  also,  post,  INTERSTATE  AND 
FOREIGN  COMMERCE. 

629-44a.  Regulation  by  commission — 
Act  legislative  when. — Prentis  v.  Atlantic 
Coast  Line  Co.,  211  U.  S.  210,  226,  53  L. 
Ed.  150,  29  S.  Ct.  67.  See  post,  "Rates 
Fixed  bv  Railroad  Commission,"  V,  A,  1, 
f,   (1),   (a),  bb. 

This  seems  to  be  fully  recognized  by 
the  supreme  court  of  appeals  in  Common- 
wealth V.  Atlantic  Coast  Line  Ry.  Co.,  106 
Virginia  61,  64;  Winchester  and  Strasburg 
R.  R.  Co.  and  others  v.  Commonwealth, 
106  Virginia,  264,  281.  See,  further.  In- 
terstate Commerce  Comm.  v.  Cincinnati, 
etc.,  R.  Co.,  167  U.  S.  479,  505,  42  L.  Ed. 
243;  San  Diego  Land,  etc.,  Co.  v.  Jasper. 
189  U.  S.  439,  440,  47  L-  Ed.  982. 


224 


\'ol.    III. 


CARRIERS. 


629-637 


fit,  may  unite  legislative  and  judicial  powers  in  a  railroad  commission.  There 
is  nothing  in  the  constitution  of  the  United  States  which  forbids  such  action.'^'*" 
c.  Reasonableness  and  Validity  of  Regulation — (2)  Mode  of  Determining  Rea- 
sonableness—  (a)  Carrier  Entitled  to  Fair  Return  on  Investment — aa.  In  Gen- 
eral.— Whether  a  railroad  rate  is  confiscatory  so  as  to  deprive  the  company  of 
its  property  without  due  process  of  law  within  the  meaning  of  the  fourteenth 
amendment  depends  upon  the  valuation  of  the  property,  the  income  derivable 
from  the  rate,  and  the  proportion  between  the  two,  which  are  matters  of  fact 
which  the  company  cannot  be  prevented  from  trying  before  a  competent  tribunal 
of  its  own  choosing.^2^ 

(1)  Reasonableness  a  Judicial  Question — aa.  In  General. — See  post,  "Rates 
Fixed  by  Railroad  Commission,"  V,  A,  1,  f,   (1),  (a),  bb. 

(3)  Authority  and  Pozver  of  Railroad  Commission. — Jurisdiction  so  extensive 
as  to  place  in  the  hands  of  a  commission  power  to  make  general  maximum  rates 
lor  all  commodities  between  all  points  in  the  state  is  not  to  be  implied,  but  must 
be  given  in  language  admitting  no  other  reasonable  construction."  ^^ 

Partial  Invalidity— Whole  Rate  Falls.— Where  a  railroad  commission 
after  a  hearing  on  specific  complaint  as  to  a  rate  on  a  particular  commodity 
makes  a  general  rate  tariff  for  maximum  rates  on  all  commodities  which  is  be- 
yond its  statutory  power,  the  whole  tariff  falls,  and  the  rate  on  the  tariff  on  the 
particular  commodity  will  not  be  separately  sustained.'^ s** 

f.  Relief  against  Enforcement  of  Rates  Fi.ved  by  Legislature  or  Commission — 
(1)  Right  to  and  Mode  of  Obtaining  Relief — (a)  Relief  to  Carrier — bb.  Rates 
Fixed  by  Railroad  Commission. — The  proceedings  of  a  state  railroad  commis- 


629-44b.  Power  to  unite  legislative  and 
judicial  authority  in  commission. — Pren- 
tis  ?'.  Atlantic  Coast  Line  Co.,  211  U.  S. 
210,  22.5,  53  L.  Ed.  150,  29  S.  Ct.  67; 
Dreyer  t'.  Illinois,  187  U.  S.  71,  84,  47  L. 
Ed.  79;  Winchester  &  Strasburg  R.  R. 
Co.  r.  Commonwealth,  106  Virginia  264, 
268.  See.  also,  post,  CONSTITU- 
TIOXAL  LAW. 

631-52a.  Mode  of  determining  reason- 
ableness.— Prentis  z'.  Atlantic  Coast  Line 
Co.,  211  U.  S.  210,  211,  53  L.  Ed.  150,  29 
S.  Ct.  67.  See  post,  CONSTITUTIONAL 
LAW;  DUE  PROCESS  OF  LAW. 

637-78a.  Power  to  make  general  maxi- 
mum rates. — Siler  t'.  Louisville,  etc..  R. 
Co..  213  U.  S.  175.  176,  53  L.  Ed.  753,  29 
S.  Ct.  451  (construing  Kentucky  railroad 
commission   act). 

The  fact  that  the  legislature  of  a  state 
gives  to  a  railroad  commission  no  power 
to  raise  rates,  but  only  power  to  reduce 
rates  found  to  be  exorbitant  after  hearing 
on  specific  complaint,  is  an  argument 
against  construing  the  statute  so  as  to 
give  the  commission  power  to  fix  maxi- 
mum, rates  on  all  commodities.  Siler  v. 
Louisville,  etc.,  R.  Co.,  213  U.  S.  175,  176, 
53  L.  Ed.  753,  29  S.   Ct.  451. 

Power  to  make  a  general  schedule  of 
maximum  rates  for  the  transportation  of 
all  commodities,  upon  all  railroads,  to  and 
from  all  points  within  the  state,  upon  a 
general  and  comprehensive  complaint  that 
rates  are  too  high,  or  upon  like  informa- 
tion of  the  commission  itself,  is  not  con- 


ferred upon  the  Kentucky  railroad  com- 
mission by  Act  Ky.  March  10,  1900  (Acts 
1900,  p.  5,  c.  2),  authorizing  it,  upon  com- 
plaint that  the  rates  of  any  railway  com- 
pany are  extortionate,  or  upon  its  own 
information,  to  fix  a  reasonable  rate  if, 
after  hearing,  it  finds  the  rates  extortion- 
ate. Siler  ?■.  Louisville,  etc.,  R.  Co.,  213 
U.  S.  175,  53  L.  Ed.  753,  29  S.  Ct.  451; 
Siler  T'.  Illinois  Cent.  R.  Co.,  213  U.  S. 
199,  53  L.  Ed.  760,  29  S.  Ct.  458. 

Construction  by  federal  court. — Not- 
withstanding the  highest  court  of  the 
state  has  not  yet  construed  the  statute 
involved,  the  federal  supreme  court  must, 
in  a  case  of  which  it  has  jurisdiction,  con- 
strue it.  Siler  v.  Louisville,  etc..  R.  Co., 
213  U.   S.  175,  53   L.  Ed.  753,  29   S.  Ct.  451. 

637-78b.  Partial  invalidity— What  rate 
falls.— Siler  z\  Louisville,  etc..  R.  Co.,  213 
U.   S.  175,  176,  53  L.  Ed.  753,  29  S.  Ct.  451. 

A  particular  rate  on  a  specific  com- 
modity fixed  by  the  Kentucky  railroad 
commission  will  not,  in  order  to  sustain 
its  validity,  be  separated  from  the  general 
order  fixing  a  general  schedule  of  maxi- 
mum rates  for  all  commodities,  upon  all 
railroads,  to  and  from  all  points  within 
the  state,  where  the  specific  order  was 
made  after  a  general  complaint  was  filed, 
and  is  itself  a  general  order,  and  was  made 
in  the  exercise  of  the  unfounded  assump- 
tion of  the  power  under  Act  Ky.  March 
10,  1900  (Acts  1900,  p.  5,  c.  2),  to  make 
a  general  tarifif  of  rates.  Siler  v.  Louis- 
ville, etc.,  R.  Co.,  213  U.  S.  175,  53  L.  Ed. 
753,  29  S.  Ct.  451. 


12   U    S    Enc— 15 


225 


637-639 


CARRIERS. 


Vol.  IIL 


sion  which  are  legislative  in  nature  are  not  proceedings  in  a  court,  and  are  sub- 
ject to  injunctive  process,  no  matter  v^hat  may  be  the  character  of  the  body  in 
which  they  take  place. ^^a  when  a  rate  is  fixed  by  a  railroad  commission,  a  bill 
against  the  commission  to  restrain  the  members  from  enforcing  it  is  not  as  bad 
as  an  attempt  to  enjoin  legislation  or  as  a  suit  against  a  state,  but  is  the  proper 
form  of  remedy.^-''  But  such  proceedings  should  not  be  commenced  in  the  fed- 
eral court  until  the  rate  has  been  fixed  by  the  state  tribunal  having  the  last 
word.^-° 

(2)  Jurisdiction. — See  note  84. 

2.  Discrimination  in  Charges  or  Facilities — b.  Discrimination  in  Favor  of 
One  of  Several  Connecting  Carriers — (2)  Providing  Stations  and  Interchanging 
Freight. — The  duty  of  a  carrier  to  accept  goods  tendered  at  its  station  does  not 
require  it  to  accept  cars  offered  by  competing  roads  at  arbitrary  points  near  its 
terminus  for  the  purpose  of  using  its  terminal  station.  A  law  requiring  the  car- 
rier so  to  do  is  unconstitutional  as  taking  property  without  due  process  of  law.^^a 

(3)  Requiring  Delivery  and  Receipt  of  Cars  betzv'een  Connecting  Carrier. — A 
provision  in  the  constitution  of  a  state  that  a  carrier  must  deliver  its  cars  to 
connecting  carriers  without  providing  adequate  protection  for  their  return,  or 
compensation  for  their  use,  amounts  to  a  taking  of  property  without  due  process 
of  law  within  the  meaning  of  the  fourteenth  amendment;  and  so  held  as  tO' 
§§  213,  214,  of  the  constitution  of  Kentucky.^^b     ^j-^^j  ^|-,g  property  of  a  railway 


637-82a.  Enjoining  rate  established  by 
commission. — Prentis  7'.  Atlantic  Coast 
Line  Co.,  211  U.  S.  210,  211,  53  L.  Ed.  150, 
29  S.  Ct.  67.  See  ante,  "By  Railroad  Com- 
mission," V,  A,  1,  b,  (2).  See,  also,  post, 
INJUNCTIONS. 

The  making  of  a  rate  by  a  legislative 
body,  after  hearing  the  interested  parties, 
is  not  res  judicata  upon  the  validity  of 
the  rate  when  questioned  by  those  par- 
ties in  a  suit  in  a  court.  Litigation  does 
not  arise  until  after  legislation;  nor  can  a 
state  make  such  legislative  action  res 
judicata  in  subsequent  litigation.  Prentis 
v.  Atlantic  Coast  Line  Co.,  211  U.  S.  210, 
53   L.   Ed.   150,  29  S.   Ct.  67. 

637-82b.  Not  bad  as  injoining  legisla- 
tion— Suit  not  against  state. — Prentis  z\ 
Atlantic  Coast  Line  Co.,  211  U.  S.  210, 
230,  53  L.  Ed.  150,  29  S.  Ct.  67;  Reagan  v. 
Farmers'  Loan,  etc.,  Co.,  154  U.  S.  362, 
38  S.  Ct.  1014;  Smyth  v.  Ames,  169  U.  S. 
466,  43  L.  Ed.  819;  Chicago,  etc.,  R.  Co.  v. 
Tompkins,  176  U.  S.  167,  44  L.  Ed.  417; 
Hanley  z'.  Kansas,  etc.,  R.  Co.,  187  U.  S. 
617,  47  L.  Ed.  333;  McNeill  zk  Southern 
Ry.  Co.,  202  U.  S.  543,  50  L._  Ed.  1142;  Mis- 
sissippi R.  Comm.  z'.  Illinois  Cent.  R.  Co., 
203  U.  S.  335,  51  L.  Ed.  209;  Ex  parte 
Young,  209  U.  S.  123,  52  L.  Ed.  714,  28  S. 
Ct.  441.  See  post,  COURTS;  INJUNC- 
TIONS. 

637-820.  Resort  to  state  tribunals  first. 
— While  a  party  does  not  lose  his  right 
to  complain  of  action  under  an  unconsti- 
tutional law  by  not  using  diligence  to  pre- 
vent its  enactment,  on  a  question  of  rail- 
road rates,  when  an  appeal  to  the  supreme 
court  of  the  state  from  an  order  of  the 
state  corporation  commission  fixing  such 
rates  is  given  hv  the  state  constitution,  it 
is  proper  that  dissatisfied  railroads  should 


take  this  matter  to  the  supreme  court  of 
their  state  before  bringing  a  bill  in  the 
circuit  court  of  the  United  States.  Under 
the  circumstances  of  this  case  action  on 
a  bill  was  suspended  to  await  the  result 
of  such  an  appeal.  Prentis  v.  Atlantic 
Coast  Line  Co.,  211  U.  S.  210,  211,  53  L- 
Ed.  150,  29   S.   Ct.  67. 

638-84.  Jurisdiction. — Ex  parte  Young, 
209  U.  S.  123,  149,  52  L.  Ed.  714,  28  S.  Ct. 
441. 

As  to  grounds  of  federal  jurisdiction, 
see  post,  COURTS.  As  to  equitable  juris- 
diction of  federal  courts,  see  post, 
EQUITY. 

639-92a.  Providing  for  interchanging 
freight. — Louisville,  etc.,  R.  Co.  rj.  Cen- 
tral Stock  Yards  Co.,  212  U.  S.  132,  133,  53 
L.  Ed.  441,  29  S.  Ct.  246.  See,  also,  post, 
INTERSTATE  AND  FOREIGN  COM- 
MERCE. 

639-92b.  Requiring  delivery  of  cars  tci 
connecting  carrier. — Louisville,  etc,  R.  Co. 
V.  Central  Stock  Yards  Co.,  212  U.  S.  132, 
53  L.  Ed.  441,  29  S.  Ct.  246.  (Decided  with 
reference  to  §§  213,  214  of  the  Kentucky 
constitution.)  See  post,  DUE  PROCESS 
OF  LAW. 

Requiring  a  railway  company  to  delivcx^ 
its  own  cars  to  another  railway  company 
when  performing  its  duty  under  Con.-^t. 
Ky.,  §  213,  to  receive,  deliver,  and  trans- 
port freight  from  and  to  any  point  where 
there  is  a  physical  connection  between 
its  tracks  and  those  of  any  other  railway 
company  deprives  the  former  company  of 
its  property  without  due  process  of  law. 
Judgment  in  97  S.  W.  778,  30  Ky.  Law 
Rep.  18,  reversed.  Louisville,  '"tc.  R.  Co. 
z:  Central  Stock  Yards  Co.,  212  U.  S.  132, 
53  L.  Ed.  441,  29  S.  Ct.  246. 


226 


Vol.  III.         CERTIFICATE  OF  DIFISIOX   OF   OPINION.         639-644 

company  is  taken  witliout  due  process  of  law  where  such  company  is  compelled, 
upon  payment  simply  for  the  service  of  carriage,  to  accept  cars  oflfered  to  it  at 
an  arbitrary  connecting  point  near  its  terminus,  by  a  competing  road,  for  the 
purpose  of  reaching  and  using  the  former's  terminal  facilities. ^2*^ 

e.  Requiring  Connection  between  Trains  or  Roads. — But  such  requirement 
must  not  violate  the  constitution  prohibiting  taking  property  without  due 
process. ^^^  The  places  and  persons  interested,  the  volume  of  business  to  be 
affected,  and  the  saving  in  time  and  expense  to  the  shipper,  as  against  the  cost 
and  loss  to  the  carrier,  must  be  considered  in  determining  the  reasonableness 
of,  and  the  public  necessity  for,  an  order  of  a  state  railroad  commission  requir- 
ing trackage  connections  at  certain  points  between  competing  railway  companies 
for  the  interchange  of  business,  which  is  attacked  as  taking  property  without 
due  process  of  law.^^'' 

B.  Regulation  by  United  States. — See  post,  Interstatk  and  Foreign 
Commerce. 

CAR  TRUST  ASSOCIATIONS.— See  the  title  Car  Trust  Associations,  vol. 
3.  p.  642,  and  references  there  given. 

CASE.— See  note  1. 

CASE  AGREED.— See  ante.  Agreed  Case,  p.  17. 

CASE  CERTIFIED.— See  ante.  Appeal  and  Error,  p.  34. 

CASE  STATED. — See  post.  Exceptions,  Bile  of,  and  Statement  oe  Facts 
ON  Appeal. 

CASHIER. — See  ante,  Banks  and  Banking,  p.  184. 

CAUSE  OF  ACTION. — See  ante,  Actions,  p.  7,  and  references  there  given. 

CAVEAT— CAVEATOR.— See  post,  Wills. 

CEDED  TERRITORY.— See  post.  Constitutional  Law. 

CEMETERIES.— See  the  title  Cemeteries,  vol.  3,  p.  647,  and  references 
there  given.  In  addition,  see  post.  Constitutional  Law  ;  Health  ;  Police 
Power. 

CERTIFICATE  OF  ACKNOWLEDGMENT.— See  ante.  Acknowledgments, 
p.  7. 

CERTIFICATE  OF  DEPOSIT.— See  ante.  Banks  and  Banking,  p.  184. 

CERTIFICATE  OF  DIVISION  OF  OPINION.— See  ante,  Appeal  and  Er- 
ror, p.  34. 

639-92C.     Requiring     receipt     of     cars. —  no    testimony    that   any    freight    had   been 

Louisville,    etc.,    R.    Co.    v.    Central    Stock  offered  in  the  past  for  shipment  between 

Yards  Co.,  212  U.  S.  132,  53  L.  Ed.  441,  29  those   points,   or   that    any     such     freight 

S.  Ct.  246.  would  be   offered  in   the  future,  and  with 

641-98a.    Due  process  of  law  required. —  no  proof  as  to  the  volume  of  business  at 

Oregon    R.,  etc.,    Co.  r.    Fairchild,    224  U.  any   of   these    points,    nor   the   amount   of 

S.  510,    56  L.    Ed.  863,    32  S.    Ct.    535.     See  fre'ight    that    would    be    routed     over     the 

post.  DUE  PROCESS  OF  L.\W.  track     connections     if     they     were     con- 

641-98b.    Places  and  person  interested —  structed,  and  with  no  testimony  as  to  the 

Volume  of    business. — Oregoa  R.,    etc.,  probable    revenue    that    would    be    derived 

Co.  V.  Fairchild.  224  U.   S.  510,  56   L.   Ed.  from  the  use  of  the  track  connections,  or 

863,  32  S.  Ct.  535.  if  the  saving  in  freight  or  otherwise  that 

No  public  necessity  is  shown  which  will  would  result  to  the  shippers.     Oregon  R., 

justify,   under    the    due     process      of      law  etc.,  Co.  z-.   Fairchild,  224  U.  S.  510,  56  L. 

clause  of  the  federal  constitution,  an  order  Ed.  863,  32  S.  Ct.  535. 

of   a    state   railroad    commission    requiring  644-1.     Case    or    controversy    to    which, 

trackage  connections  at  certain  points  be-  under  the  federal  constitution,  the  federal 

tween    competing    railwaj'-    companies    for  power  extends. — See  ante,  APPEAL  AND 

the  interchange  of    business,     where     the  ERROR,  p.  34. 

commission  acted  without  any  evidence  of  Cases   in   law   and   equity  arising   under 

inadequate  service,  with  no  proof  of  pub-  the    constitution    or   laws    of    the    United 

lie  complaint  or  of  a  public  demand,  with  States. — See  post,  COURTS. 


664-673  CHANNEL.  Vol.  III. 

CERTIFICATE  OF  STOCK. — See  post,  Stock  and  Stockholdi^rs. 
CERTIFIED  CHECK. — See  ante,  Banks  and  Banking,  p.  184. 
CERTIFIED  COPIES. — See  post.  Documentary  Evidence:. 

CERTIORARI. 

VI.  The  Writ,  228. 

B.  Return,  228. 

4.  Manner  and  Requisites  of  Return,  228. 

CROSS  REFERENCES. 

See  the  title  CeIrtiorari,  vol.  3,  p.  651,  and  references  there  given. 
■    As  to  certiorari  to  circuit  court  of  appeals,  see  Appel\l  and  Error,  ante,  p.  34. 

VI.  The  Writ. 

B.  Return — 4.  Manne;r  and  Re:quisite;s  of  Re;turn. — Waiver  of  Defects 
in  Return. — Defects  in  the  return  of  a  writ  of  certiorari  are  waived  by  failure 
to  object  when  tbe  return  is  made.^"'' 

CESSION.— See  post,  Constitutionai.  Law  ;  Tri^aties. 
CHALLENGE.— See  post,  Grand  Jury;    Jury. 

CHAMBERS  AND  VACATION. 

I.  Powers  and  Duties  of  Judges  at  Chambers,  228. 
A.  In  General,  228. 

CROSS  REFERENCES. 

See  the  title  Chambers  and  Vacation,  vol.  3,  p.  666,  and  references  there 
given. 

I.  Powers  and  Duties  of  Judges  at  Chambers. 

A.  In  General. — Exercise  of  Powers  in  Different  Courts.— A  federal  cir- 
cuit Judge  can  dispose  of  any  administrative  matter  in  any  circuit  court  in  his 
circuit  properly  ordered  at  chambers,  without  personally  going  into  its  territorial 
limits,  if  his  chambers  are  held  in  the  circuit. ^^ 

CHAMPERTY    AND    MAINTENANCE.— See    the    title    Champerty    and 
Maintenance,  vol.  3,  p.  668,  and  references  there  given. 
CHANCERY.— See  post,  Equity.     • 

CHANGE  OF  VENUE.— See  post.  Habeas  Corpus;   Venue. 
CHANNEL.— See  note  1. 

664-57a.  Waiver  of  defects  in  return. —  6/3-1.  Middle  channel. — The  middle  of 
Technical  defects  in  the  return  of  munici-  the  main  channel  of  the  river  is  what  is 
pal  officers  in  a  proceeding  by  certiorari  meant  by  the  words  "the  middle  channel 
to  quash  an  alleged  illegal  drainage  tax  of  said  river,"  in  the  Act  of  February  14, 
assessment  are  waived  by  failure  to  ob-  1859,  admitting  Oregon  into  the  Union 
ject  when  the  return  to  the  rule  to  show  with  the  Columbia  as  its  northern  bound- 
cause  was  made  the  return  to  the  writ.  afy.  Washington  v.  Oregon,  214  U.  S. 
Judgment  in  29  App.  D.  C.  563,  reversed.  205,  53  L.  Ed.  969,  29  S.  Ct.  631.  See  ante, 
District  of  Columbia  v.  Brooke,  214  U.  S.  BOUNDARTHS,  p.  206. 
138.  53  L.  Ed.  94],  29  S.  Ct.  560.       _  Widest  channel.— In   the  Act  of   Febru- 

666-la.    Exercise  of  powers  in  different  ary   14,    1859,   admitting    Oregon    into    the 

courts. — Ex    parte    Harlan,    180    Fed.    119,  Union,    with    the    Columbia    River    as    its 

decrees   affirmed   in    Harlan   v.    McGourin,  northern    boundary,     the      term      "widest 

218  U.  S.  442,  54  L.  Ed.  1101,  31  S.  Ct.  44.  channel"  does  not  mean  the  broadest  ex- 

228 


Vol.  III. 


CHARTREUSE. 


673-698 


CHARGE.— See  note  3. 

CHARITIES.— See  the  title  Charities,  vol.  3,  p.  675,  and  references  there 
given.     In  addition,  see  post,  Citizenship;    Jurisdiction. 

CHARTER. — See  ante.  Banks  and  Banking,  p.  184;  post,  Corporations; 
Turnpikes  and  Tollroads.  As  to  construction  of  term  of  charter  of  a  street 
railw^ay,  see  post.  Street  Railways. 

CHARTER  PARTY.— See  post.  Ships  and  Shipping. 

CHARTREUSE.— See  note  la. 


panse  of  water.  Tliere  must  be,  in  the 
first  instance,  a  channel — that  is,  a  flow  of 
water  deep  enough  to  be  used,  and  in  fact 
used,  by  vessels  in  passing  up  and  down 
the  river;  but  that  does  not  mean  the  deep- 
est channel  but  simply  the  widest  expanse 
of  water  which  can  be  reasonably  be  called 
a  channel.  Washington  v.  Oregon,  214  U. 
S.  205.  53  L.  Ed.  969,  29  S.  Ct.  631.  See 
ante,  BOUNDARIES,  p.  206. 

673-3.  Charged  vrith  crime. — In  the  con- 
gressional provisions,  §  5278,  U.  S.  Revised 
Statutes,  enacted  in  aid  of  the  constitu- 
tional provision  as  to  extradition,  directing 
that  the  charge  of  crime  shall  be  made 
either  by  "an  indictment  found  or  an  affi- 
davit made  before  the  magistrate,"  the 
word  charge  was  doubtless  used  in  its 
broad  significance  to  cover  any  proceed- 
ing which  the  state  might  see  fit  to  adopt, 
by  which  the  formed  accusation  was  made 
against  the  alleged  criminal.  An  indict- 
ment, whether  good  or  bad,  as  a  plead- 
ing, which  unmistakably  described  every 
element  of  the  crime  false  swearing  under 
art.   209.  Tex.   Pen.    Code,    was    sufficient. 


Pierce  v.  Creecv,  210  U.  S.  387,  52  L.  Ed. 
1113,  28  S.  Ct.  7'l4.  See  post,  EXTRADI- 
TION. 

698-la.  Chartreuse  not  a  geographical 
name. — The  word  Chartreuse,  as  applied 
to  the  liqvieur  which  for  generations  they 
made  and  sold,  can  not  be  regarded  in  a 
proper  sense  as  a  geographical  name.  It 
had  exclusive  reference  to  the  fact  that 
it  was  tile  liqueur  made  by  the  Carthusian 
monks  at  their  monastery.  So  far  as  it 
embraced  the  notion  of  place,  the  descrip- 
tion was  not  of  a  district,  but  of  the  mon- 
astery of  the  order — the  abode  of  the 
monks — and  the  term  in  its  entirety 
pointed  to  production  by  the  monks.  The 
word  was  susceptible  of  executive  appro- 
priation as  a  trademark  by  the  Carthusian 
monks  of  the  monastery  of  La  Grande 
Chartreuse  to  designate  a  liquer  made  and 
sold  by  them  for  generations.  Baglin  v. 
Cusenier  Co.,  221  U.  S.  580.  55  L.  Ed.  863, 
31  S.  Ct.  669.  See  post,  TRADEMARKS, 
TRADENAMES  AND  UNFAIR  COM- 
PETITION. 


229 


712-721  CHATTEL  MORTGAGES.  Vol.  III. 


CHATTEL  MORTGAGES. 

II.  Form,  Requisites  and  Validity,  230. 
K.  Recording  or  Filing,  230. 
3.  Necessity,  230. 

b.  As  against  Assignees  of  Mortgagor,  230. 
(2)   Assignee  in   Bankruptcy,  230. 
,        c.  As  against  Creditors  and  Purchasers,  230. 

(1)  Subsequent    Creditors    and    Purchasers,    230. 
(d)      Persons    Who    Are    Creditors,   230. 

bb.  Lien  Creditors,  230. 
cc.  Notice,  231. 

(2)  Prior   Creditors   and    Purchasers,    231. 

L.  Delivery  of  Possession  to  Mortgagee  or  Retention  by  Mortgagor,  231. 
2.  Under  the  Recordirig  Acts,  231. 
c.  Power  of   Disposal   in   Mortgagor,  231. 

(2)   Power  for  Benefit  of  Mortgagor  Alone,  231. 

III.  Construction,   Operation  and  Effect,  231. 
B.  Rules  of  Construction,  231. 

2.  Whether  Instrument,   Mortgage  or  Note,  231. 

b.  Distinguished  from  Other  Instruments  or  Transactions,  231. 
(4)   Sale,  231. 

CROSS  REFERENCES. 

See  the  title  Chatte;l  Mortgages,  vol.  3,  p.  699,  and  references  there  given. 
In  addition,  see  post.  Recording  Acts. 

II.  Form,  Requisites  and  Validity. 

K.  Recording  or  Filing — 3.  Necessity — b.  As  against  Assignees  of  Mort- 
gagor—  (2)  Assignee  in  Bankruptcy. — The  effect  to  be  given  in  bankruptcy  pro- 
ceedings to  an  unrecorded  chattel  mortgage  as  against  subsequent  creditors  of 
the  bankrupt  mortgagee,  without  notice,  must  be  determined  by  the  recording 
law  of  the  state,  in  view  of  the  declaration  of  the  Bankrupt  Act  of  Julv  1.  1898 
(30  Stat,  at  L.  564,  chap.  541,  U.  S.  Comp.  Stat.  1901,  p.  3449),  § '67a,  that 
claims  which,  for  want  of  record,  or  for  other  reasons,  would  not  have  been 
valid  liens  as  against  the  claims  of  the  creditors  of  the  bankrupt,  shall  not  be 
liens  against  his  estate.^*^^ 

c.  As  against  Creditors  and  Purchasers — (1)  Subsequent  Creditors  and  Pur- 
chasers—  (d)  Persons  Who  Are  Creditors — bb.  Lien  Creditors. — The  term  "cred- 
itors" as  used  in  Ky.  Stat.  1903,  §  496,  includes  subsequent  creditors  without 
notice,  who,  by  their  diligence,  secure  a  specific  lien  upon  the  property,  as  by 
execution  or  attachment,  before  the  mortgage  is  recorded.^"^  Subsequent  cred- 
itors without  notice  of  an  unrecorded  chattel  mortgage,  who  have  not  secured 
any  specific  lien  upon  the  mortgaged  property  by  execution,  attachment,  or  other- 
wise, are  not  comprehended  by  the  term  "creditor,"  as  used  in  Ky.  Stat.  1903, 
§  496,  which  provides  that  no  unrecorded  mortgage  shall  be  valid  against  a  pur- 
chaser for  a  valuable  consideration,  without  notice  thereof,  or  against  cred- 
itors.''^^ 

712-363.    Assignee  in  bankruptcy.— Holt  ble  Steel  Co.,  224  U.  S.  262,  56  L.  Ed.  756. 

V.   Crucible  Steel  Co.,  224  U.  S.  262,  56  L.  32   S.   Ct.  414. 

Ed.     756,     32    S.   Ct.  414.     And  see  ante,  721-77b.    Holt  r.  Crucible  Steel  Co.,  224 

BANKRUPTCY,  p.  168.  U.   S.  262,  56  L.   Ed.  756,  32   S.  Ct.  414. 


721-77a.    Lien  creditors. — Holt  v.  Cruci- 


230 


Vol.  III. 


CHECKS. 


722-744 


cc.  Notice. — The  terms  "creditors''  in  Ky.  Stat.  1903,  §  496,  does  not  include 
subsequent  creditors  whose  claims  are  acquired  with  notice  of  an  unrecorded 
chattel  mortgage. ^2* 

(2)  Prior  Creditors  and  Purchasers. — The  term  "creditors"  in  Ky.  Stat.  1903, 
§  496,  does  not  include  antecedent  creditors. ^-^^ 

L.  Delivery  of  Possession  to  Mortgagee  or  Retention  by  Mortgagor — 
2.  Under  the  Recording  Acts — c.  Pozver  of  Disposal  in  Mortgagor — (2) 
Power  for  Benefit  of  Mortgagor  Alone. — Where  the  stipulations  of  a  chattel 
mortgage  practically  permit  the  mortgagor  to  retain  possession  and  to  dispose 
of  the  property  for  his  own  benefit,  it  is  void,  because  the  efifect  of  such  pro- 
visions is  to  give  the  beneficial  use  of  the  mortgaged  property  to  the  mortgagor 
in  possession,  and  to  make  possible  the  use  of  the  mortgage  as  a  protection 
against  creditors  of  the  mortgagor  when  they  shall  undertake  to  assert  their 
rights. -^^    Such  mortgage  is  invalid  as  against  a  trustee  in  bankruptcy. -°'* 

in.  Construction,  Operation  and  Effect. 

B.    Rules  or  Construction — 2.  Whether  Instrument,  Mortgage  or  Not — 

b.  Distinguished  from  Other  Instruments  or  Transactions — (A^  Sale. — Abso- 
lute Bill  of  Sale  as  Mortgage. — Evidence  to  show  that  a  bill  of  sale  which 
appears  on  its  face  to  have  been  given  in  discharge  of  a  debt  was  really  intended 
to  give  the  creditor  additional  security  is  admissible  under  the  Porto  Rico  law 
of  evidence  (section  101)  declaring  that  the  rule  which  raises  a  conclusive  pre- 
sumption of  the  truth  of  the  facts  recited  in  a  written  instrument  does  not  apply 
to  the  recital  of  a  consideration. ^^a 

Vendor  a  Guarantor. — Whether  the  vendor  in  a  bill  of  sale  which  was  held 
to  be  a  chattel  mortgage  was  a  guarantor  or  not  can  not  make  the  bill  of  sale 
something  other  than  what  it  was  or  effect  the  liability  of  the  guarantor 
upon  it.-^2b 


CHECKS. — See    ante,    Banks   and    Banking,    p. 
Checks,  p.  204:   post.  Pensions. 


184;    Bills,    Notes   and 


722-83a.  Notice.— Holt  r.  Crucible  Steel 
Co.,  224  U.  S.  262,  56  L.  Ed.  756,  32  S.  Ct. 
414. 

722-84a.  Prior  creditors. — Holt  v.  Cruci- 
ble Steel  Co.,  224  U.  S.  262,  56  L.  Ed.  756. 
32    S.    Ct.   414. 

734-25a.  Power  for  benefit  of  mort- 
gagor.— Knapp  z\  r^Iihvaukee  Trust  Co.. 
216  U.   S.  54.5,  54  L.   Ed.  610,  30  S.   Ct.  412. 

Wisconsin. — A  chattel  mortgage  is  in- 
valid as  to  the  creditors  of  the  mortgagor 
under  the  Wisconsin  statutes,  as  construed 
by  the  highest  court  of  that  state,  where 
it  permits  the  mortgagor  to  remain  in 
possession  of  the  property,  applying  the 
proceeds  thereof  to  its  own  use,  except 
that  no  dividend  shall  be  declared  or  paid 
without  first  making  provision  for  a  sink- 
ing fund  and  for  interest  on  its  bonds,  un- 
less the  trustee  shall  waive  the  sinking 
fund  payment,  in  which  case  the  mone}'? 
which  would  otherwise  go  into  such  fund 
may  be  applied  for  the  benefit  of  the  mort- 
gagor, either  as  dividends  or  for  the  bene- 
fit of  its  business  and  property.  Decree, 
162  F.  675,  89  C.  C.  A.  467,  affirmed.  Knapp 
V.  Milwaukee  Trust  Co.,  216  U.  S.  545, 
54  L.  Ed.  610,  30  S.  Ct.  412. 


734-25b.  Validity  as  against  trustee  in 
bankruptcy. — A  chattel  mortgage  which, 
under  the  Wisconsin  laws  and  decisions, 
is  void  as  to  the  creditors  of  the  mort- 
gagor, for  want  of  change  of  possession, 
is  invalid  as  to  the  trustee  in  bankruptcy 
of  such  mortgagor,  since,  under  the  Bank- 
rupt Act  of  July  1,  1898,  §  70a,  the  trus- 
tee in  bankruptcy  takes  title  to  the  prop- 
erty of  the  bankrupt  which  could  have 
been  levied  upon  and  sold  under  judicial 
process  against  the  bankrupt  at  the  time 
of  the  adjudication  in  bankruptC3^  Knapp 
V.  Milwaukee  Trust  Co..  216  U.  S.  545,  54 
L.   Ed.  610.  30  S.  Ct.  412. 

744-52a.  Cabrera  v.  American  Colonial 
Bank.  214  U.  S.  224,  53  L.  Ed.  974,  29  S.  Ct. 
623.  In  this  case  the  court  said:  "In  Mor- 
gan V.  Shinn,  15  Wall.  105.  21  L.  Ed.  87,  the 
rule  of  equity  was  enforced  against  the  bill 
of  sale  of  a  vessel,  though  it  was  enrolled 
and  was  insured  in  the  name  of  the  trans- 
feree. See  Livingston  v.  Story,  11  Pet. 
351.  9  L.  Ed.  746." 

744-52b.  Vendor  a  guarantor. — Cabrera 
V.  American  Colonial  Bank,  214  U.  S.  224, 
53  L.  Ed.  974.  29  S.  Ct.  623. 


231 


767-773  CHINESE  EXCLUSION  ACTS.  Vol.  III. 

CHEROKEE  CHILDREN.— See  post,  Indians. 
CHILD— CHILDREN.— See  note  4. 

CHINESE  EXCLUSION  ACTS. 

II.  Classes  Excluded,  232. 

C.  Laborers,  232. 

E.  Wife  or  Minor  Child  of  Person  Entitled  to  Enter,  232. 

III.  Procedure,    232. 

B.  Provisions   for  Registration  and  Identification,  232. 
2.  Certificate  of  Identity,  232. 

a.  For  Entry  of  Persons  Entitled  Other  than  Laborers,  232. 

D.  Finality  of  Decision  of  Ministerial  Officers,  233. 

F.  Habeas  Corpus,  234. 

CROSS  REFERENCES. 

See  the  title  Chine;sS  Exclusion  Acts,  vol.  3,  p.  769,  and  references  there 
given. 

II.  Classes  Excluded. 

C.  Laborers. — Chinese  laborers  are  not  tacitly  exempted  from  the  general 
provisions  of  the  Immigration  Act  of  February  20,  1907  (34  Stat,  at  L.  898,  908, 
chap.  1134,  U.  S.  Comp.  Stat.  Supp.  1909,  pp.  447,  466),  for  the  deportation  of 
any  alien  unlawfully  entering  the  United  States,  because  of  the  Chinese  ex- 
clusion acts  of  earlier  date,  which  make  it  unlawful  for  any  Chinese  laborer  to 
come  from  any  foreign  place  into  the  United  States,  or,  having  so  come,  to  re- 
main there,  and  provide  a  dififerent  procedure  for  removing  him,  although  by 
§  43  of  the  later  act  its  provisions  shall  not  be  construed  to  repeal,  alter,  or 
amend  the  laws  relating  to  the  Chinese. ^"^^ 

E.  Wife  or  Minor  Child  of  Person  Entitled  to  Enter. — Inmate  of  House 
of  Prostitution. — See  ante,  AuKns,  p.  18. 

in.  Procedure. 

B.  Provisions  for  Registration  and  Identification — 2.  Cf;rtificate.of 
Ide;ntity — a.  For  Entry  of  Persons  Entitled  Other  than  Laborers. — -Effect  of 
Certificate. — A  certificate  of  identity  duly  issued  and  vised  by  a  consular  rep- 
resentative of  the  Lhiited  States,  to  a  Chinese  subject  entitled  to  enter  the  United 
States  under  the  treaty  of  December,  1894,  is,  upon  application  for  admission, 
prima  facie  evidence  of  the  facts  set  forth  therein.  22  Stat,  at  L.  58,  §  6, 
chap.  126,  U.  S.  Comp.  Stat.  1901,  p.  1307;  33  Stat,  at  L.  428,  chap.  1630.  This 
certificate  is  the  method  which  the  two  countries  contracted  in  the  treaty  should 
establish  a  right  of  admission  of  students  and  others  of  the  excepted  class  into 
the  United  States,  and  certainly  it  ought  to  be  entitled  to  some  weight  in  de- 
termining the  rights  of  the  one  thus  admitted.  While  this  certificate  may  be 
overcome  by  proper  evidence  and  may  not  have  the  efifect  of  a  judicial  determi- 

767-4.     Children   that  were  minors   at  a  minors  living  March  4.  1906."     The  words 

certain    date. — Children   born    to    enrolled  "children  who  were  minors  living  March 

members  of  the  Cherokee  Tribe  after  Sep-  4,    1906,"    as  naturally    and  aptly    embrace 

tember  1,  1902,  though  expressly  excluded  children  born  after  as  before  September  1, 

by   the   Act   of   July   1,   1902,   from    enroll-  1902.     Gritts  v.  Fisher,  224  U.  S.  640,  56  L. 

ment    or   participation    in    the    distribution  Ed.    928.    32    S.    Ct.    580.      See    post,    IN- 

of  the   tribal   propertj',   were,   if   living   on  DIANS. 

March  4,  1906,  embraced  by  the  provisions  7<3-17a.     Laborers. — United     States     v. 

of   the   Act   of   April   26,     1906,      §     2,      as  Wong  You,  223  U.  S.  67,  56  L.  Ed.  354,  32 

amended  by  the  Act  of  June  21,  1906,  for  S.  Ct.  195. 
the    enrollment    of    "children     who      were 


A'bl.  III. 


CHINESE  EXCLUSION  ACTS. 


in-iso 


nation,  yet,  being  made  in  conformity  to  the  treaty,  and  upon  it  the  Chinaman 
having  been  duly  admitted  to  a  residence  in  this  country,  he  can  not  be  deported, 
because  of  wrongfully  entering  the  United  States  upon  a  fraudulent  certificate, 
unless  there  is  some  competent  evidence  to  overcome  the  legal  effect  of  the 
certificate.^^^ 

D.  Finality  of  Decision  of  Ministerial  Officers. — Appeal  to  Secretary 
of  Commerce  and  Labor. — The  decision  of  the  secretary  of  commerce  and 
labor,  affinning  the  denial  by  the  inspector  in  charge  of  the  right  of  a  person  of 
Chinese  descent  to  admission  into  the  United  States,  is,  under  the  acts  of  con- 
gress making  the  decision  of  the  appropriate  immigration  officer  final  unless 
reversed  on  appeal  to  the  secretary  of  commerce  and  labor,  conclusive,  and  not 
subject  to  review  by  the  court,  unless  it  affirmatively  appears  that  they  acted 
improperly  or  abused  their  discretion.^^^  The  finality  of  the  decision  by  the 
secretary  of  commerce  and  labor  of  an  appeal  from  the  decision  of  an  inspector 
rejecting  tlie  application  of  a  person  of  Chinese  descent  for  admission  into  the 
United  States  is  not  afifected  by  the  fact  that  the  department  held  the  case  under 
consideration  for  less  than  two  days,  where  the  issue  was  a  narrow  one  and  per- 
mitted of  speedy  disposition. ^i'^  The  decision  of  an  appeal  from  the  rejection 
of  the  application  of  a  person  of  Chinese  descent  for  admission  into  the  United 
States  is  none  the  less  that  of  the  secretary  of  commerce  and  labor,  because 
communicated  by  a  telegram  from  the  assistant  secretary.*  1*= 

A  hearing  de  novo  before  the  district  judge  is  contemplated  by  the  pro- 
vision of  Act  Sept.  13,  1888,  c.  1015,  §  13,  25  Stat.  476  (U.  S.  Comp.  St.  1^01, 
p.  1312),  giving  a  Chinese  person  convicted  before  a  United  States  commissioner 
of  being  unlawfully  within  the  United  States  the  right  to  appeal  to  the  judge  of 
the  federal  district  court  for  the  district.'*^'^ 


777-33a.    Effect  of  certificate. — Liu  Hop 

Fong  z'.  United  States,  209  U.  S.  453,  52 
L.   Ed.   888,  28  S.   Ct.   576. 

780-41a.  Tang  Tun  z:  Edsell,  223  U.  S. 
673,  56  L.  Ed.  606,  32  S.  Ct.  359,  so  hold- 
ing under  acts  of  congress  of  Aug.  18, 
1894  (25  Stat,  at  L.  372,  390,  chap.  301, 
U.  S.  Comp.  Stat.  1901,  p.  1303).  and  of 
Feb.  14,  1903  (32  Stat,  at  L.  825,  828,  chap. 
55^,  U.  S.  Comp.  Stat.  Supp.  1909,  p.  87). 

780-41b.  Tang  Tun  7-.  Edsell,  223  U.  S. 
673,  56  L.   Ed.  606.  32   S.   Ct.  359. 

780-41C.  Tang  Tun  t>.  Edsell,  223  U.  S. 
673,  56  L.   Ed.  606,  32  S.  Ct.   359. 

780-4ld.  Appeal  and  certiorari. — Liu 
Hop  Fong  V.  United  States,  209  U.  S.  453, 
52  L.  Ed.  888,  28  S.  Ct.  576. 

The  deportation  of  a  Chinaman  law- 
fully admitted  to  the  United  States  upon 
a  student's  certificate,  complying  with  the 
treaty  with  China  of  December  8.  1894,  art. 
3,  28  Stat.  1210,  can  not  be  ordered  by  a 
federal  district  court  uoon  the  transcript 
of  the  proceedings  before  the  commis- 
sioner, which  presents  merely  such  stu- 
dent's certificate  and  a  statement  that 
witnesses  were  examined,  without  any  find- 
ings, or  the  giving  of  any  testimony,  al- 
though additional  separate  findings  of  the 
commissioner  were  afterwards  filed,  where 
this  was  done  without  the  order  of  the 
court,  and  there  was  no  consent  to  a  hear- 
ing upon  such  additional  findings.  Liu 
Hop  Fong  V.  United  States,  209  U.  S.  453, 
52  L.  Ed.  888,  28  S.  Ct.  576. 


"In  the  case  of  Ah  How  z'.  United 
States,  193  U.  S.  65,  48  L.  Ed.  619,  24  S. 
Ct.  357.  it  was  assumed  that  the  judge 
who  tried  the  case  upon  appeal  did  so 
solely  upon  the  commissioner's  report, 
and  heard  no  witnesses.  In  Tom  Hong 
z'.  United  States.  193  U.  S.  517,  48  L.  Ed. 
772,  24  S.  Ct.  517,  the  commissioner  made 
a  finding,  which  was  made  part  of  the 
record  by  order  of  the  district  court."  Liu 
Hop  Fong  z:  United  States,  209  U.  S.  453, 
52  L.   Ed.   888.  28   S.   Ct.   576. 

Fairness  of  hearing. — The  refusal  to  ad- 
mit a  person  of  Chinese  descent  into  the 
United  States,  on  the  ground  that  he  was 
not  born  in  the  United  States,  does  not 
show  a  denial  of  a  fair  hearing,  where  all 
but  one  of  the  witnesses  except  himself  to 
testify  on  such  point  were  shown  to  be 
unworthy  of  belief,  and  that  one  relied 
upon  his  identification  of  him  at  eighteen, 
as  the  same  person  he  had  last  seen  as  a 
boy  of  five  years  old.  Tang  Tun  z\  Edsell. 
223  U.   S.  673.  56  L.   Ed.  606,  32   S.  Ct.  359. 

Acts  of  inspector. — The  rights  of  an 
applicant  of  Chinese  descent  for  admis- 
sion to  the  United  States,  who  present.^; 
papers  bearing  apparent  indorsement  of 
the  collector,  showing  the  applicant's  ad- 
mission on  a  former  arrival  from  China, 
are  not  violated  by  the  acts  of  the  in- 
spector in  examining  the  records  of  the 
customhouse,  which  contain  a  statement 
over  the  apparent  signature  of  the  same 
collector   that   the   applicant  had   been   re- 


233 


780 


CIRCUMSTANTIAL  EVIDENCE. 


Vol.  III. 


Taking  Entire  Case  to  the  Circuit  Court  of  Appeals. — The  entire  case 
may  be  taken  to  the  circuit  court  of  appeals  for  review  where  the  district  court 
took  jurisdiction  of  a  writ  of  habeas  corpus  by  a  person  of  Chinese  descent, 
whose  application  for  admission  into  the  United  States  had  been  rejected,  and 
then  proceeded  to  determine  the  merits,  sustaining  his  claim  of  citizenship.^^® 

F.  Habeas  Corpus. — Habeas  corpus  should  be  granted  by  the  federal  courts 
to  a  Chinese  person,  claiming  to  be  a  citizen  of  the  United  States,  who  has  ar- 
bitrarily been  denied  such  a  hearing  and  opportunity  to  prove  his  right  to  enter 
the  United  States  as  the  exclusion  acts  demand,  and  has  been  placed  in  custody 
of  a  steamship  company,  to  be  returned  to  China,  pursuant  to  the  decisions  of 
the  commissioner  of  immigration  and  the  department  of  commerce  and  labor.^^' 

CHOCTAW  TREATY.— See  post,  Indians. 
CHOSES  IN  ACTION.— See  ante,  Assignments,  p.  153. 
CHURCH. — See  post,  Reugious  Societies. 

CIRCUMSTANTIAL  EVIDENCE.— See  the  title  Circumstantial  Evi- 
dence, vol.  3,  p.  786,  and  references  there  given.    See,  also,  post.  Evidence. 


jected  on  his  previous  application,  and  in 
asking  for  an  explanation  of  such  apparent 
lejection,  nor  by  his  communicating  with 
immigration  officers  after  an  order  reject- 
ing such  applicant,  to  the  end  that  the 
matter  should  be  sifted,  and  that  witnesses 
who  had  made  affidavits  in  support  of  the 
applicant's  appeal  should  be  carefully  ex- 
amined. Tang  Tun  v.  Edsell,  223  U.  S. 
673,  56  L.  Ed.  606,  32   S.   Ct.  359. 

An  inspector  who  has  rejected  the  ap- 
plication of  a  person  of  Chinese  descent 
for  admission  into  the  United  States  can 
not,  on  appeal  from  a  writ  of  habeas  cor- 
pus by  such  applicant,  be  held  guilty  of 
unfair  or  improper  conduct  in  inserting  in 
the  record  transmitted  by  him  to  the 
secretary  of  commerce  and  labor  state- 
ments as  to  the  result  of  investigations 
made  by  him  as  to  arrivals  and  clearings 
of  vessels  at  the  time  of  an  application 
for  admission  by  the  same  applicant  on  a 
previous  return  from  China,  comments 
on  the  practice  which  had  obtained  in 
dealing  with  Chinese  applicants  for  ad- 
mission, and  references  to  entries  in  the 
official  records,  where  such  matters  were 
called  to  the  attention  of  the  witnesses 
for  the  applicant,  are  not  shown  to  have 
been  false,  or  made  with  any  attempt  to 
deceive    the    secretarj',    and    on    the    hear- 


ing of  the  writ  of  habeas  corpus  it  was 
stipulated  that  the  matter  should  be  heard 
on  the  record,  including  such  statements, 
comments  and  references,  and  that  the 
writ  should  be  dismissed"  if  the  court 
should  find  that  there  had  been  no  abuse 
of  discretion.  Tang  Tun  v.  Edsell,  223 
U.  S.  673,  56  L.  Ed.  606,  32  S.  Ct.  359. 

An  inspector  who  had  rejected  the  ap- 
plication of  a  person  of  Chinese  descent 
for  admission  into  the  United  States  can 
not  be  held  guilty  of  bad  faith  or  im- 
proper conduct  in  forwarding  to  the  secre- 
tary of  commerce  and  labor  papers  found 
by  examination  of  the  records  in  the  cases 
of  other  Chinese  persons  who  arrived  on 
the  same  steamer  with  the  applicant  at 
the  time  of  an  application  for  admission 
on  a  previous  return  from  China,  which 
records  show  his  rejection  at  such  time, 
although  the  papers  presented  by  him  on 
the  later  application  show  an  apparent 
admission.  Tang  Tun  v.  Edsell,  223  U. 
S.  673,  56  L.  Ed.  606,  32  S.  Ct.  359. 

780-41e.  Tang  Tun  v.  Edsell,  223  U.  S. 
673,  56  L.  Ed.  606,  32  S.  Ct.  359. 

780-4lf.  Habeas  corpus. — Chin  Yow  v. 
United  States,  208  U.  S.  8,  52  L.  Ed.  369, 
28  S.  Ct.  201.  See  post,  HABEAS  COR- 
PUS. 


234 


Vol.  III. 


CiriL  OFFICERS. 


800-813 


CITIZENSHIP. 

II.  Acquisition  of  Citizenship,  235. 
C.  By  ^Marriage,  235. 

F.  By  Annexation  or  Conquest,  235. 

G.  By  Naturalization,  235. 

V.  Termination  or  Loss  of  Citizenship,  235. 

CROSS  REFERENCES. 
See  the  title  Citizenship,  vol.  3,  p.  788,  and  references  there  given. 

II.  Acquisition  of  Citizenship. 

C.  By  Marriage. — The  status  of  a  foreign  born  woman  who  marries  an 
American  by  birth,  who  is  consequently  an  American  citizen,  is  regulated  by 
statute.39^ 

F.  By  Annexation  or  Conquest. — See  post.  International  Law.  The  ab- 
sence of  a  Spanish  subject  from  the  Philippine  Islands  during  the  entire  period 
allowed  by  article  9  of  the  treaty  of  peace  with  Spain  of  December  10,  1898  (30 
Stat.  1759),  for  making  a  declaration  of  his  intention  to  preserve  his  allegiance 
to  the  crown  of  Spain,  prevents  the  loss  of  his  Spanish  nationality  by  reason 
of  his  failure  to  make  such  declaration.^^^ 

G.  By  Naturalization. — See  post.  Naturalization. 

V.  Termination  or  Loss  of  Citizenship. 

See  ante,  "By  Annexation  or  Conquest,"  II,  F. 

CIVIL  ACTION,  CASE,  SUIT,  ETC.— See  note  1. 
CIVIL  OFFICERS.— See  note  3. 


800-39a.  By  marriage. — Rev.  Stat.,  § 
1994  (U.  S.  Comp.  Stat.  1901,  p.  1268),  Low 
Wah  Suey  v.  Backus,  22.5  U.  S.  460,  56  L. 
Ed.  1165,  32  S.  Ct.  734.  See,  also,  Yeung 
How  V.  North,  223  U.  S.  705,  56  L.  Ed.  021, 
32  S.  Ct.  517.  See  ante.  CHINESE  EX- 
CLUSION ACTS,  p.  232. 

This  section  is  said  to  originate  in  the 
act  of  congress  of  February  10,  1885  (10 
Stat,  at  L.  604,  chap.  71),  2d  section,  and 
was  held  to  confer  the  privileges  of  citi- 
zenship upon  women  married  to  citizens 
of  the  United  States,  if  they  were  of  the 
class  of  persons  for  whose  naturalization 
the  acts  of  congress  provide.  So,  under 
the  present  statute,  when  a  v/oman  who 
could  be  naturalized  marries  a  citizen  of 
the  United  States,  she  becomes  by  that 
act  a  citizen  herself.  A  Chinese  person 
not  born  in  this  country,  and  can  not  be- 
come a  naturalized  citizen  unrler  the  laws 
of  the  United  States.  Being  incapable  of 
naturalization  herself,  a  Chinese  woman, 
although  the  wife  of  a  Chinaman  of  Ameri- 
can birth,  remains  an  alien.  Low  Wah 
Suey  r.  Backus.  225  U.  S.  460,  56  L.  Ed. 
1165,  32  S.  Ct.  734. 


803-46a.     Absence  of  Spanish  subject. — 

Bosque  v.  United  States.  209  U.  S.  91,  52 
L.  Ed.  698.  28  S.  Ct.  501. 

813-1.  Civil  action. — See  ante,  AC- 
TIONS, p.  7. 

813-3.  Civil  officers. — The  acceptance  by 
an  army  officer  on  the  active  list,  detached 
to  command  a  battalion  of  Philippine 
scouts,  of  a  small  sum  from  the  civil  gov- 
ernment of  the  Philippine  Islands,  to  be 
used  bj''  him  in  connection  with  his  mili- 
tary command  in  the  preparation  and  dis- 
play of  the  exhibit  at  the  Louisiana  Pur- 
chase Exposition,  did  not  make  him  a 
civil  officer,  so  as  to  be  amendable  to  P.  T. 
Penal  Code,  art.  300,  punishing  the  falsifi- 
cation of  a  public  document  by  a  public 
official.  The  fact  that  in  signing  the  false 
document  he  added,  after  his  name,  D. 
O..  meaning,  it  may  be  presumed,  disburs- 
ing officer,  does  not  change  the  result. 
Carrington  r.  United  States,  208  U.  S.  1. 
52  L.  Ed.  367,  28  S.  Ct.  203.  See  Weems 
z:  United  States.  217  U.  S.  349,  54  L.  Ed. 
793.  30  S.  Ct.  544.  See,  also,  ante. 
■\r:\IY  and  NAVY,  p.  150. 


235 


CniL  RIGHTS.  .  Vol.  III. 


CIVIL  RIGHTS. 

I.  Of  the  General  Power  of  Congress  to  Protect  Civil  Rights,  236. 

A.  Rights  Protectable  by  Congress.  236. 

1.  Generally;    Rights  Granted  or  Secured  by  the  Constitution  of  the 

United  States,  236. 
6.  Right  to  Make  and  Carry  Out  Contracts,  237. 

B.  Form  and  Manner  of  Protection.  237. 

2.  Revised  Statutes,  _§§  5508,  5509,  et  seq..  237. 

a.  Constitutionality,   237. 

c.  Offenses  under  §   5508,  237. 

(6)   Conspiracy   to    Prevent   Execution   or    Performance   of 
Contracts,  237. 

3.  Civil  Actions ;    Jurisdiction  of  Federal  Circuit  Courts,  237. 

a.  Generally ;    Statutes  Governing  Jurisdiction,  237. 

b.  Actions  Relating  to  Civil  Rights  within  the  Meaning  of  the 

Statutes,  238. 
(3^)   Imprisonment  under  Executive  Order  in  Time  of 
Insurrection,   etc.,   238. 

II.  Powers  of  Congress  under  the  Prohibitions  against  State  Infringe- 

ment of  Civil  Rights,  238. 

A.  Of  the  General  Purpose  of  the  War  Amendments  and  Legislation  En- 

acted Pursuant  Thereto,  238. 
1.  Generally,  238. 

B.  Fourteenth  and  Fifteenth  Amendments  Refer  to  State  and  Not  to  In- 

dividual Action,  238. 

F.  Rights  Protected,  238. 

4.  Equal  and  Impartial  Justice,  238. 

b.  Discrimination   in  the  Selection  of  Jurors,  238. 

6.  Expenditure  of    School   Fund ;     Separate   Schools    for  the   Races, 

239. 

7.  Right  to  Occupy  Same  Coach  or  Compartment,  239. 

G.  Of  the  Form  and  Manner  of  Protection,  239. 

8.  Writ  of  Error  to  United  States  Supreme  Court,  239. 

c.  Motion  or  Plea  in  Abatement,  239. 

f .  Evidence  to  Support  Motion ;    Necessity ;    Presumptions,  240. 

g.  Same:   \Miat  Record  J\Iust  Show,  240. 

CROSS  REFERENCES. 

See  the  title  Civil  Rights,  vol.  3,  p.  814,  and  references  there  given. 

In  addition,  see  ante.  Aliens,  p.  18;  C.\rrilrs,  p.  216;  Chinese  Exclusion 
Acts,  p.  232;  Citizenship,  p.  235;  post.  Constitutional  Law;  Due  Process 
OP  Law  ;  Grand  Jury  ;  Jury  ;  Police  Power  ;  Schools  and  School  Dis- 
tricts. 

I.  Of  the  General  Power  of  Congress  to  Protect  Civil  Rights. 

A.  Rights  Protectable  by  Congress — 1.  Generally;  Rights  Granted  or 
Secured  by  the  Constitution  oe  the  United  States. — Effect  of  War 
Amendments. — There  can  be  no  dovibt,  so  far  as  the  decision  in  the  Slaughter- 
House  Cases  has  determined  the  question,  that  the  civil  rights  sometimes  de- 
scribed as  fundamental  and  inalienable,  which  before  the  war  amendments,  were 

236 


Vol.  III. 


CIJIL  RIGHTS. 


817-822 


enjoyed  by  state  citizenship  and  protected  by  state  government,  were  left  un- 
touched by  this  clause  of  the  fourteenth  amendment."*^ 

6.    Right  to  Maku  and  Carry  Out  Contracts. — See  notes  8,  9. 

Civil  Rights  as  to  Business  Relations  and  Associations. — It  is  a  part  of 
every  man's  civil  rights  that  he  be  left  at  liberty  to  refuse  business  relations 
with  any  person  whomsoever,  whether  the  refusal  rests  upon  reason,  or  is  the 
result  of  whim,  caprice,  prejudice  or  malice.  With  his  reasons  neither  the 
public  nor  third  persons  have  any  legal  concern.  It  is  also  his  right  to  have 
business  relations  with  anyone  with  whom  he  can  make  contracts,  and,  if  he  is 
wrongfully  deprived  of  this  right  by  others,  he  is  entitled  to  redress.^'' 

Contracts  for  Labor  and  Personal  Services — Rights  of  Employer  and 
Employee. — The  right  of  a  person  to  sell  his  labor  upon  such  terms  as  he 
deems  proper  is,  in  its  essence,  the  same  as  the  right  of  the  purchaser  of  labor 
to  prescribe  the  conditions  upon  which  he  will  accept  such  labor  from  the  person 
offering  to  sell  it ;  and  the  right  of  the  employee  to  quit  the  service  of  the  em- 
ployer, for  whatever  reason,  is  the  same  as  the  right  of  the  employer,  for  what- 
ever reason,  to  dispense  with  the  services  of  such  employee. ''*'  In  all  such  par- 
ticulars the  employer  and  employee  have  equality  of  right,  and  any  legislation 
that  disturbs  that  equality  is  an  arbitrary  interference  with  the  liberty  of  con- 
tract which  no  government  can  legally  justify  in  a  free  land.^*^ 

B.  Form  and  Manner  of  Protection — 2.  Revised  Statutes,  §§  5508,  5509, 
e;t  sEQ. — a.    Constitutionality.— See  note  13. 

c.  Offenses  under  §  jjo8 — (6)  Conspiracy  to  Prevent  Bxecution  or  Perform- 
ance of  Contracts. — See  ante,  "Right  to  Make  and  Carry  Out  Contracts,"  I,  A,  6. 

3.  Civil  Actions  ;  Jurisdiction  oe  Federal  Circuit  Courts — a.  Generally; 
Statutes  Governing  Jurisdiction. — See  note  28. 


817-4a.      Effect    of    war    amendments. — 

Twining  -■.  New  Jersey,  211  U.  S.  78,  96, 
53  L.  Ed.  97,  29  S.  Ct.  14. 

818-8.  Right  to  make  and  carry  out  con- 
tracts.—United  States  V.  Powell,  212  U.  S. 
564,  53  L.  Ed.  653,  29  S.  Ct.  690,  following 
Hodges  V.  United  States,  203  U.  S.  1,  51  L. 
Ed.  65.  27  S.  Ct.  6. 

818-9.  Same — Thirteenth  amendment. — 
United  States  v.  Powell,  212  U.  S.  564,  53 
L.  Ed.  653,  29  S.  Ct.  690,  following  Hodges 
V.  United  States,  203  U.  S.  1,  51  L.  Ed.  65, 
27  S.  Ct.  6. 

818-9a.  Civil  rights  as  to  business  rela- 
tions and  associations. —  Adair  t'.  United 
States,  208  U.  S.  161,  52  L.  Ed.  436,  28  S. 
Ct.  277. 

818-9b.  Contracts  for  labor  and  per- 
sonal services — Rights  of  employer  and 
employee. — Adair  v.  United  States.  208  U. 
S.  161.  52  E.  Ed.  436,  28  S.  Ct.  277. 

818-9C.  Adair  v.  United  States,  208  U. 
S.  161.  52  L.  Ed.  436.  28  S.  Ct.  277r  See, 
also,  post,  DUE  PROCESS  OF  LAW. 

Personal  liberty  as  well  as  the  right  of 
property  is  invaded  without  due  process 
of  law  in  violation  of  the  fifth  amendment 
of  the  constitution  of  the  United  States  by 
the  provisions  of  Act  of  June  1,  1898,  c. 
370,  §  10,  30  Stat.  424  (U.  S-  Comp.  Stat. 
1901,  p.  3205)  making  it  a  criminal  offense 
against  the  United  States  for  an  agent  or 
officer  of  an  interstate  carrier  having  full 
authority  in  the   premises   from   his  prin- 


cipal, to  discharge  an  employee  from  serv- 
ice to  such  carrier  because  of  his  mem- 
bership in  a  labor  organization.  United 
States  V.  Adair  (D.  C),  152  Fed.  737.  re- 
versed Adair  v.  United  States,  208  U.  S. 
161,  52  L.  Ed.  436,  28  S.  Ct.  277. 

819-13.  Rev.  Stats:,  §§  5508,  5509— Con- 
stitutionality.— The  contention  that  §  5509 
is  unconstitutional,  however  presented, 
was  long  since  put  at  rest.  Rakes  v. 
United  States,  212  U.  S.  55,  58,  53  L.  Ed. 
401,  29  S.  Ct.  244;  Motes  v.  United  States, 
178  U.  S.  458,  44  L.  Ed.  1150;  Logan  v. 
United  States,  144  U.  S.  263,  36  L.  Ed.  429; 
In  re  Quarles,  158  U.  S.  532,  39  L.  Ed.  1080. 

822-28.  Civil  jurisdiction  of  federal 
courts. — Rev.  Stat.,  §  629,  sixteenth  clause, 
gives  original  jurisdiction  to  the  federal 
circuit  court  "of  all  suits  authorized  by 
law  to  be  brought  by  any  person  to  re- 
dress the  deprivation,  under  color  of  any 
law,  statute,  ordinance,  regulation,  custom, 
or  usage  of  any  state,  of  any  right,  privi- 
lege, or  immunity,  secured  by  the  constitu- 
tion of  the  United  States,  or  of  any  right 
secured  by  any  law  providing  for  equal 
rights  of  citizens  of  the  United  States,  or 
of  all  persons  within  the  jurisdiction  of 
the  United  States."  Rev.  Stat..  §  1979,  au- 
thorizes suit  to  be  brought  for  such  depri- 
vation as  above  described.  Moj'er  v.  Pea- 
body.  212  U.  S.  78,  83,  53  L.  Ed.  410,  29  S. 
Ct.  235. 


23i 


822-832 


CIVIL  RIGHTS. 


Vol.  III. 


b.  Actions  Relating  to  Civil  Rights  ivithin  the  Meaning  of  the  Statutes — 
(3>2)  Imprisonment  under  Executive  Order  in  Time  of  Insurrection,  etc. — 
Where  the  governor  of  a  state  is,  by  law  of  the  state,  made  the  commander-in- 
chief  of  the  national  guard  of  the  state  and  empowered  to  call  out  the  national 
guard  to  repel  invasion  and  to  suppress  insurrection  within  the  state,  his  decla- 
ration that  a  state  of  insurrection  exists  is  conclusive  of  that  fact,  and  the  power 
to  suppress  includes  not  only  the  power  to  kill  men  in  the  actual  clash  of  arms, 
but  the  power  to  order  the  arrest  of  those  engaged  in  the  insurrection  without 
resorting  to  civil  process  and  to  detain  such  parties  until  the  insurrection  is  sup- 
pressed and  danger  of  its  renewal  is  over,  and  for  so  doing  he  can  not  be  held 
responsible  in  a  personal  action  brought  against  him  by  the  imprisoned  party 
after  his  term  of  office  has  expired;  and  a  declaration,  basing  a  cause  of  action 
upon  such  arrest  and  detention,  does  not  disclose  a  "suit  authorized  by  law  to 
be  brought  in  the  federal  circuit  courts  to  redress  the  deprivation  of  any  right 
secured  by  the  constitution  of  the  United  States,"  within  the  meaning  of  U.  S. 
Rev.  Stat.,  §§  629,  1979.3 1^ 

II.  Powers  of  Congress  under  the  Prohibitions  against  State  Infringe- 
ment of  Civil  Rights. 

A.  Of  the  General  Purpose  of  the  War  Amendments  and  Legislation 
Enacted  Pursuant  Thereto — 1.  Generally. — The  Thirteenth  Amendment. 

— See  notes  43,  44. 

B.  Fourteenth  and  Fifteenth  Amendments  Refer  to  State  and  Not  to 
Individual  Action. — See  note  57. 

F.  Rights  Protected — 4.  Equal  and  Impartlal  Justice — b.  Discrimina- 
tion in  the  Selection  of  Jurors. — See  notes  79,  80.  81. 


822-31a.  Imprisonment  under  executive 
order  in  time  of  insurrection,  etc. — Meyer 
V.  Peabody,  212  U.  S.  78,  83,  53  L.  Ed.  410, 
29  S.  Ct.  235. 

825-43.  Thirteenth  amendment — Char- 
acter of  servitude  forbidden.  —  United 
States  V.  Powell,  212  U.  S.  564,  53  L.  Ed. 
G53,  29  S.  Ct.  690,  following  Hodges  v. 
United  States,  203  U.  S.  1,  51  L.  Ed.  65,  27 
S.  Ct.  6. 

825-44.  Same— Same.— United  States  v. 
Powell,  212  U.  S.  564,  53  L.  Ed.  653,  29  S. 
Ct.  690,  following  Hodges  v.  United  States, 
203  U.  S.  1.  51  L.  Ed.  65.  27  S.  Ct.  6. 

827-57.  Fourteenth  and  fifteenth  amend- 
ments refer  to  state  actions — Thirteenth 
amendment. — The  14tli  and  15th  amend- 
ments are  restraints  upon  the  state  action 
solely  and  not  upon  the  actions  of  individ- 
uals. The  13th  amendment  operates  to 
abolish  slavery  and  involuntary  servitude 
whether  the  same  is  attempted  to  be  en- 
forced by  states  or  individuals.  Hodges 
V.  United  States,  203  U.  S.  1,  51  L.  Ed.  65, 
27  S.  Ct.  6,  following  United  States  v. 
Powell,  212  U.  S.  564,  53  L.  Ed.  653,  29  S. 
Ct.  690. 

831-79.  Constitution  does  not  guarantee 
mixed  jury. — Thomas  t.  Texas,  212  U.  S. 
278,  282,  53  L.  Ed.  512,  29  S.  Ct.  393,  fol- 
lowing Martin  v.  Texas,  200  U.  S.  316,  50 
L.  Ed.  497;  Franklin  ?'.  South  Carolina, 
318  U.   S.  161,  54  L.   Ed.  980.  30  S.   Ct.  640. 

832-80.  But  forbids  discrimination  on  ac- 
count of  race  or  color. — Thomas  v.  Texas, 


212  U.  S.  278,  282,  53  L.  Ed.  512,  29  S.  Ct. 
393,  following  Martin  v.  Texas.  200  U.  S. 
316,  50  L.  Ed.  497;  Franklin  v.  South  Car- 
olina, 218  U.  S.  161,  54  L.  Ed.  980,  30  S.  Ct. 
640. 

832-81.  Same. — Thomas  v.  Texas,  212 
U.  S.  278,  282,  53  L.  Ed.  512,  29  S.  Ct.  393, 
following  Martin  v.  Texas,  200  U.  S.  316, 
50  L.  Ed.  497;  Franklin  v.  South  Carolina, 
218  U.  S.  161,  54  L.  Ed.  980,  30  S.  Ct.  640. 

No  discrimination  against  negroes  be- 
cause of  their  race,  in  the  selection  of  the 
grand  jury,  is  made  by  Laws  S.  C.  1902,  p. 
1066,  §  2,  giving  the  jury  commissioners 
the  right  to  select  electors  of  good  moral 
character,  such  as  they  may  deem  quali- 
fied to  serve  as  jurors,  being  persons  of 
sound  judgment  and  free  from  all  legal 
exceptions.  Franklin  v.  South  Carolina, 
218  U.  S.  161,  54  L.  Ed.  980,  30  S.  Ct.  640, 
affirming  judgment  State  ?'.  Franklin 
(1908).  60  S.  E.  953,  80   S.   C.  332. 

Speaking  upon  the  constitutionality  of 
the  vSoiith  Carolina  statute,  the  court  says: 
"It  is  next  contended,  concerning  the  jury 
law  of  South  Carolina,  that  it  confers  ar- 
bitrary power  upon  the  jury  commission- 
ers in  selecting  jurors.  Section  2  of  the 
act  of  1902  provides  (p.  1066.)  'They  (the 
jury  commissioners)  shall  *  *  *  prepare  a 
list  of  such  qualified  electors  under  the 
provisions  of  the  constitution,  between  the 
ages  of  twenty-one  and  sixty-five  years, 
and  of  good  moral  character,  of  their  re- 
spective counties,  as  they  may  deem  other- 


238 


Vol.  III. 


CIVIL  RIGHTS. 


833 


6.  Expenditure  of  Schooe  Funds;  Separate  Schools  for  the  Races. — 
Right  of  Corporation  to  Conduct  Mixed  School — Due  Process — Exercise 
of  Reserved  Power  to  Alter  or  Amend  Charter. — See  note  87a. 

7.  Right  to  Occupy  Same  .Coach  or  Compartment. — Right  of  Carrier  to 
Adopt  Regulations. — The  interstate  commerce  clause  of  the  federal  constitu- 
tion does  not  constrain  the  action  of  carriers,  but,  on  the  contrary,  leaves  them 
to  adopt  rules  and  regulations  for  the  government  of  their  business  free  from 
any  interference  except  by  congress.  Such  rules  and  regulations,  O'f  course, 
must  be  reasonable,  but  whether  they  be  such  can  not  depend  upon  a  passenger 
being  state  or  interstate.^^^  Congressional  inaction  is  equivalent  to  a  declara- 
tion that  a  carrier  may,  by  its  regulations,  separate  white  and  negro  interstate 
passengers. ^^'^ 

G.  Of  the  Form  and  Manner  of  Protection — 8.  Writ  oe  Error  to 
United  States  Supreme  Court — c.  Motion  or  Plea  in  Abatement. — Motion 
for  Peremptory  Instruction. — Even  though  the  state  law  and  the  warrant 
issued  under  it  were  unconstitutional  and  of  no  validity,  because  of  the  statute 
being  opposed  to  the  thirteenth  and  fourteenth  amendments  of  the  federal  con- 
stitution and  to  the  federal  statutes  abolishing  and  prohibiting  peonage  (Rev. 
Stats.,  §§  1990,  5526,  Comp.  Stat.  1901,  p.  3715)  and  declaring  null  and  void 
state  laws  and  usages  in  conflict  therewith  and  penalizing  state  officers  or  any 
persons  arresting  or  attempting  to  return  any  person  to  a  state  of  peonage  under 
the  authority  of  such  unconstitutional  acts,  a  defendant  accused  of  homicide  in 
resisting  an  arrest  under  such  a  statute,  in  that  without  warning  he  shot  and 
killed  the  officer  who  knocked  for  admission  on  his  door,  does  not  raise  the 
question  of  the  denial  of  his  federal  rights  in  the  premises  by  merely  requesting 
a  peremptory  instruction  for  an  acquittal  upon  the  ground  that  the  state  statute 
under  which  the  officer  was  proceeding  was  unconstitutional  and  that  the  war- 


wise  well  qualified  to  serve  as  jurors,  be- 
ing persons  of  sound  judgment  and  free 
from  all  legal  exceptions,  which  list  shall 
include  not  less  than  one  from  every  three 
of  such  qualified  electors,'  etc.  We  do  not 
think  there  is  anything  in  this  provision  ♦of 
the  statute  having  the  efifect  to  deny  rights 
secured  by  the  federal  constitution.  It 
gives  to  the  jury  commissioners  the  right 
to  select  electors  of  good  moral  character, 
such  as  they  may  deem  qualified  to  serve 
as  jurors,  being  persons  of  sound  judg- 
ment and  free  from  all  legal  exceptions. 
There  is  nothing  in  this  statute  which  dis- 
criminates against  individuals  on  account 
of  race  or  color  or  previous  condition,  or 
which  subjects  such  persons  to  any  other 
or  different  treatment  than  other  electors 
who  may  be  qualified  to  serve  as  jurors. 
The  statute  simply  provides  for  an  exer- 
cise of  judgment  in  attempting  to  secure 
competent  jurors  of  proper  qualification. 
Murray  v.  Louisiana,  163  U.  S.  101,  108,  41 
L.  Ed.  87,  16  S.  Ct.  990;  Gibson  v.  Mis- 
sissippi, 162  U.  S.  565,  589,  40  L.  Ed.  1075, 
16  S.  Ct.  904.  Under  this  statute,  the  su- 
preme court  of  South  Carolina  held  that 
the  jurj'-  commissioners  were  only  required 
to  select  men  of  good  moral  character,  and 
that  competent  colored  men  were  equally 
eligible  with  others  for  such  service.  We 
find  no  denial  of  federal  rights  in  this  pro- 


vision of  the  statute.''  Franklin  f.  South 
Carolina,  218  U.  S.  161,  54  L.  Ed.  980,  30  S. 
Ct.  640. 

833-87a.  Right  of  corporation  to  conduct 
mixed  school — Due  process — Exercise  of 
reserved  power  to  alter  or  amend  charter. 
— The  prohibition  against  teaching  white 
and  negro  pupils  in  the  same  institution, 
which  is  made  by  Acts  of  Ky.  1904,  p.  181, 
c.  85,  does  not,  when  applied  to  a  corpora- 
tion as  to  which  the  state  has  reserved  the 
power  to  alter,  amend,  or  repeal  its  char- 
ter, deny  due  process  of  law  nor  otherwise 
violate  the  federal  constitution,  since  the 
corporation  had  no  inherent  or  property 
right  to  teach,  nor  any  right  of  that  char- 
acter whatever,  except  as  conferred  by  the 
state;  and  under  its  charter  it  had  no  such 
irrevocable  right  as  against  the  reserved 
power  of  the  state  to  alter  or  amend  its 
charter.  Berea  College  v.  Commonwealth. 
211  U.  S.  45,  53  L.  Ed.  81,  29  S.  Ct.  33.  af- 
firmed in  123  Ky.  209,  94  S.  W.  623. 

833-88a.  Right  of  carrier  to  adopt  regu- 
lations.— Chiles  7'.  Chesapeake,  etc.,  R.  Co.. 
218  U.  S.  71,  54  L.  Ed.  936,  30  S.  Ct.  667. 
affirming  125  Ky.  299.  101  S.  W.  386. 

833-88b.  May  separate  white  and  negro 
passengers  where  congress  has  not  acted. 
—Chiles  V.  Chesapeake,  etc.,  R.  Co..  218  U. 
S.  71,  54  L.  Ed.  936.  30  S.  Ct.  667,  affirming 
125  Ky.  299,  101   S.  W.  386. 


239 


842-847 


CLAIM. 


Vol.  III. 


rant,  if  any,  was  of  no  validity,  and  that  the  officer  was  acting  without  any  law- 
ful authority.28a 

f.  Evidence  to  Support  Motion;  Necessity;  Presumptions. — Unmixed  Jury 
Not  Proof  of  Discrimination. — See  note  36. 

g.  Same;  What  Record  Must  Shozv. — Record  Must  Show  Discrimination 
in  Impaneling  Jury. — A  motion  to  quash  an  indictment  against  a  negro  for 
disqualification  of  the  grand  jurors,  who  must  be  electors,  because  of  a  change 
in  the  state  constitution  respecting  the  qualifications  of  electors,  alleged  to  vio- 
late the  act  of  congress  of  June  25,  1868  (15  Stat,  at  L.  73,  chap.  70),  does 
not  present  any  question  of  the  denial  of  a  federal  right,  where  there  is  nothing 
in  the  record  to  show  that  the  grand  jury,  as  actually  impaneled,  contained  any 
person  who  was  not  qualified  as  an  elector  under  the  earlier  constitution,  or 
was  so  made  up  as  to  exclude  negro  citizens  on  account  of  their  race.'*^^ 

Same;  Presumption;  Conclusiveness  of  State  Decision. — Where  the 
statutes  of  the  state  make  no  discrimination,  and  provide  a  method  fair  on  its 
face  for  selecting  grand  and  petit  jurors,  the  question  whether  or  not  discrim- 
mation  against  negroes  because  of  their  race  or  color  was  practiced  by  the  jury 
commissioners  in  the  selection  of  grand  and  petit  jurors  is  one  of  fact,  the  de- 
cision of  which  by  the  state  court  is  conclusive  on  the  federal  supreme  court,  on 
writ  of  error,  unless  so  grossly  wrong  as  to  amount  to  an  infraction  of  the 
federal  constitution,  which  will  not  be  presumed  in  the  absence  of  any  showing 
upon  the  record  to  that  efifect.^^'' 

CIVIL  SERVICE. — See  post.  Forgery  and  Counterfeiting. 
CIVIL  WAR.— See  post.  War. 
CLAIM.— See  note  la. 


842-28a.  Motion  for  peremptory  instruc- 
tion.— Franklin  z'.  South  Carolina,  218  U. 
S.   161,  54  L.   Ed.  980,  30   S.   Ct.  640. 

"It  is  next  contended  that  the  court 
erred  in  refusing  to  direct  a  verdict  upon 
motion  of  the  defendant's  counsel  at  the 
close  of  the  testimony,  because  the  war- 
rant on  which  the  deceased  attempted  to 
arrest  the  plaintiff  in  error  was  null  and 
void,  because  the  act  under  which  it  was 
issued  was  unconstitutional,  and  this,  so 
far  as  federal  questions  are  concerned,  be- 
cause it  was  in  violation  of  art.  4,  and  re- 
pugnant to  the  13th  and  14th  Amendments 
of  the  federal  constitution.  *  *  *  The  only 
federal  question  raised  in  this  connection  is 
■found  in  this  denial  of  the  motion  to  direct 
a  verdict  in  favor  of  the  accused,  because 
t'he  statute  under  which  he  was  sought  to 
be  arrested  was  void  under  the  federal 
constitution,  and  the  warrant  issued  for 
his  arrest  under  such  unconstitutional  law 
therefore  void  and  of  no  effect.  *  *  *  An  in- 
spection of  this  record  does  not  disclose 
that  by  any  request  to  charge,  or  other- 
wise, any  advantage  was  sought  to  be 
taken  of  the  unconstitutionality  of  the  act 
other  than  is  found  in  the  request  for  the 
peremptory  instruction  to  acquit  the  ac- 
cused. *  *  *  The  supreme  court  of  South 
Carolina  considered  and  overruled  certain 
grounds  of  appeal,  which  embrace  objec- 
tions to  the  charge.  But  we  do  not  find 
in  these  rulings  any  determination  of  fed- 


eral questions  adverse  to  the  plaintiff  in 
error  which  would  warrant  a  reversal  of 
the  judgment  by  this  court."  Franklin  v. 
South  Carolina,  218  U.  S.  161,  54  L.  Ed. 
980.  30  S.  Ct.  640.     See  post.  VERDICT. 

844-36.  Unmixed  jury  not  proof  of  dis- 
crimination.— Thomas  v.  Texas,  212  U.  S. 
278,  282,  53  L.  Ed.  512,  29  S.  Ct.  393.  fol- 
lowing Martin  v.  Texas,  200  U.  S.  316,  50 
L.  Ed.  497:  Franklin  v.  South  Carolina, 
218  U.  S.  161,  54  L.  Ed.  980,  30  S.  Ct_.  640. 

844-39a.  Record  must  show  discrimina- 
tion in  empaneling  jury. — Franklin  v. 
South  Carolina,  218  U.  S.  161,  54  L-  Ed. 
980,  30  S.  Ct.  640. 

844-39b.  Some — Presumption — Conclu- 
siveness of  state  decision. — Thomas  v. 
Texas,  212  U.  S.  278,  53  L.  Ed.  512.  29  S. 
Ct.  393.  See  ante,  APPEAL  AND  ER- 
ROR, p.  34. 

847-la.  Claim  to  real  property. — The 
asserted  right  of  citizens  of  New  York 
and  West  Virginia  as  owners  of  timber 
lands  in  Georgia,  near  the  Tennessee 
boundarj^  line,  to  protection  against  the 
destruction  of  their  forests  by  the  dis- 
charge of  deleterious  fumes  and  gases 
from  the  works  of  a  New  Jersey  corpora- 
tion situated  within  the  territorial  juris- 
diction of  the  federal  circuit  for  the  east- 
ern district  of  Tennessee,  is  not  a  claim 
to  real  property  within  the  district,  within 
the  meaning  of  the  Act  of  March  3,  1875 
(18  Stat,  at  L.  470,  chap.  137),  §  8,  provid- 


240 


Vol.  III. 


CLERKS  OF  COURT. 


856-863 


CLAIMS. — See    post,    Courts;     International    Law;    States;    Trh:aties; 
United  States. 

CLASS  LEGISLATION.— See  post,  Constitutional  Law. 


CLERKS  OF  COURT. 

IV.  Compensation,  24L 

A.  In   General,  241. 

1.  As  Dependent  upon  Statute,  241. 

2.  Compensation  Per  Diem,  24L 
D.  Duty  to  Account  for  Fees,  241. 

CROSS  REFERENCES. 

See  the  title  Clerks  of  Court,  vol.  3,  p.  849.  and  references  there  given. 

IV.  Compensation. 

A.  In  General — 1.  As  Dependent  upon  Statute. — See  post,  "Duty  to  Ac- 
count for  Fees,"  IV,  D. 

2.  Compensation  Per  Diem. — The  bankruptcy  court  of  the  United  States  is 
always  open  for  the  transaction  of  business,  whether  the  judge  be  personally 
present  or  not."*'^'^ 

D.  Duty  to  Account  for  Fees. — Prior  to  1841  the  clerks  were  not  required 
to  render  any  account  of  their  fees  to  the  government.*^^  The  fees  and  emolu- 
ments stand  in  a  different  category  from  other  moneys  which  a  clerk  may  re- 
ceive by  virtue  of  his  office,  as,   for  example,  moneys  paid  into  court.'^''     And 


ing  for  bringing  in  absent  defendants  in 
local  actions,  so  as  to  confer  jurisdiction 
upon  that  court  over  the  New  Jersey  cor- 
poration, which  refused  to  appear  volun- 
tarily in  the  suit  as  a  defendant.  Ladew  v. 
Tennessee  Copper  Co.,  218  U.  S.  357,  54 
L.    Ed.    1069,    31    S.    Ct.    81. 

856-44a.  Clerk  of  bankruptcy  court. — 
United  States  v.  Marvin,  212  U.  S.  275,  53 
L.  Ed.  510,  29  S.  Ct.  297,  citing  United 
States  V.  Finnell,  185  U.  S.  236,  46  L.  Ed. 
890;  Owen  v.  United  States,  41  C.  CI.  69. 
See,  also,  post,  COURTS. 

A  clerk  of  a  federal  district  and  circuit 
court  is  entitled  to  his  statutory  per  diem 
compensation  for  days  on  which  he  refers 
to  the  referee  in  bankruptcy  voluntary  pe- 
titions in  bankruptcy  filed  during  the  ab- 
sence of  the  judge  from  the  district, 
though  without  written  orders  to  open  the 
court  for  that  or  anv  other  purpose.  United 
States  V.  Marvin,  212  U.  S.  275,  53  L.  Ed. 
510,  29  S.  Ct.  297. 

863-7a.  Duty  to  account  for  fees. — 
United  States  v.  Mason,  218  U.  S.  517,  54 
L.  Ed.  1133,  31  S.  Ct.  28,  citing  United 
States  V.  Hill,  120  U.  S.  169,  176.  30  L.  Ed. 
627. 

"The  act  of  March  3,  1791,  chapter  22, 
§  1  (1  Stat.  217),  fixed  their  compensation 
for  attending  court  and  made  an  allow- 
ance for  traveling.  That  of  May  8,  1792, 
chapter  36,  §  3  (1  Stat.  277),  added  such 
fees  as  were  allowed  by  the  supreme  court 
of  the  state,  and  authorized  the  court  to 
grant  a  reasonable   compensation  for  the 

12   U   S    Enc— 16  241 


discharge  of  duties  not  performed  by  the 
clerks  of  the  state  court  and  for  which  the 
laws  of  the  state  made  no  allowance.  But, 
under  these  statutes,  the  fees  and  emolu- 
ments received  by  the  clerks  were  their 
own  property.  And  they  were  to  be  re- 
covered 'in  like  manner  as  the  fees  of  the 
officers  of  the  states  respectively  for  like 
services.'  1  Stat.  278,  §  6.  United  States 
V.  Mason,  218  U.  S.  517,  522,  54  L.  Ed.  1133, 
31   S.  Ct.  28. 

"This  was  followed  by  the  act  of  May 
18,  1842,  chapter  29  (5 'Stat.  483),  which 
limited  the  amount  which  the  clerk  could 
retain  out  of  the  fees  and  emoluments  of 
his  office."  United  States  v.  Mason,  218 
U.  S.  517,  523,  54  L.  Ed.  1133,  31  S.  Ct.  28. 

863-7b.  Fees  not  held  as  trust  funds. — 
United  States  v.  Mason,  218  U.  S.  517,  529, 
54  L.  Ed.  1133,  31  S.  Ct.  28.  Rev.  Stat., 
§§  995-996. 

There  is  a  separate  system  with  respect 
to  the  fees  and  emoluments  of  clerks,  and 
the  amounts  which  the  clerk  receives  are 
not  moneys  or  property  of  the  United 
States  but  a  fund  from  which  he  receives 
his  compensation  and  expenses,  and  as  to 
the  surplus  for  which  he  must  account  to 
the  United  States  he  is  not  trustee  but 
debtor.  United  States  v.  Mason,  218  U.  S. 
517,  54  L.  Ed.  1133,  31  S.  Ct.  28. 

In  United  States  v.  Hill,  123  U.  S.  681,  31 
L.  Ed.  275,  8  S.  Ct.  308,  the  action  was  on 
the  official  bond  of  the  clerk  of  the  district 
court  of  the  United  States  for  the  district 
of    Massachusetts,    and    it    was    asserted 


863  COLLEGES  AND  UNIVERSITIES.  Vol.  III. 

clerks  of  the  federal  courts  are  not  controlled  in  respect  to  their  fees  and  emol- 
uments and  accounting  therefor  by  the  provisions  of.  the  act  of  March  3,  187o, 
c.  144,  18  Stat.  479,  or  of  Rev.  Stat.,  §§  5490  and  5497,  relating  to  embezzle- 
ment of  moneys  and  property  of  the  United  States  by  officers  and  other  persons 
charged  with  the  safe-keeping  thereof."'^ 

CLIENT. — See  ante,  Attgrne^y  and  Cue:nt,  p.  158. 

CLOSED  SEASON. — See  post,  Game  and  Game  Laws. 

CLOUD  ON  TITLE.— See  post.  Quieting  Title. 

COAL  LANDS. ^See  post.  Mines  and  Minerals. 

CODE  PLEADING.— See  post,  Pleading. 

COEMPLOYEES.— See  post.  Fellow  Servants. 

COIN. — As  to  exportation  of  coin,  see  post.  Constitutional  Law. 

COLLATERAL  ATTACK.— See  post,  Judgments  and  Decrees;  Military 
Law;    Public  Lands. 

COLLATERAL  SECURITY.— See  post,  Pledge  and  Collateral  Security. 

COLLECTIONS.— See  ante.  Banks  and  Banking,  p.  184. 

COLLEGES  AND  UNIVERSITIES.— See  the  title  Colleges  and  Universi- 
ties, vol.  3,  p.  867,  and  references  there  given. 

In  addition,  see  post.  Impairment  oe  Obligation  of  Contracts  ;  Public 
Lands  ;   Taxation.    As  to  actions  against  colleges,  see  post,  States. 

that  the  federal  supreme  court  had  juris-  a  revenue  law  within  the  meaning  of  §  699. 
diction  to  review  the  judgment  because  the  United  States  v.  Mason,  318  U.  S.  517,  529, 
suit  was  brought  for  the  enforcement  of  54  L.  Ed.  1133,  31  S.  Ct.  28. 
a  "revenue  law."  The  court  held  that  863-7c.  Embezzlement  statute  not  appli- 
§  844,  Rev.  Stat.,  requiring  the  clerk  to  pay  cable. — United  States  v.  Mason,  218  U.  S. 
into  the  treasury  any  surplus  of  fees  and  517,  54  L.  Ed.  1133,  31  S.  Ct.  28.  See,  gen- 
emoluments  shown  by  his  return  was  not  erally,  post,   EMBEZZLEMENT. 

242 


Vol.  III.  COLLISION.  923-932 


COLLISION. 

III.  Precautions  to  Avoid  Collision,  243. 

D.  Special  Precautions  Required  in  Fog  or  Thick  Weather.  243. 

2.  Speed,  243. 

b.  Steam  Vessels,  243. 
G.  Tugs  and  Vessels  in  Tow.  243. 

1.  Injury  to  Third  \'essels.  243. 

d.  Liability  as  between  Tug  and  Tow,  243. 
(3)  When  Tug  Liable  Alone,  243. 
4.  Precaution  to  Prevent  Collision,  243. 

V.  Rights  and  Liabilities  Growing  Out  of  Collision,  243. 
A.  What  Law  Governs,  243. 

E.  Division  of  Loss  in  Case  of  Mutual  Fault,  244. 

2.  Admiralty  Rule,   244. 

a.  Loss  or  Injury  Sustained  by  Vessels,  244. 

VI.  Actions  or  Suits  for  Collision,  244. 

A.  Jurisdiction,  244. 

CROSS  REFERENCES. 

See  the  title  Collision,  vol.  3,  p.  870,  and  references  there  given. 

III.  Precautions  to  Avoid  Collision. 

D.  Special  Precautions  Required  in  Fog  or  Thick  Weather — 2.  Speed 
— b.   Steam  Vessels. — See  note  50. 

G.  Tugs  and  Vessels  in  Tow — 1.  Injury  to  Third  Vessels — d.  Liability 
as  between  Tug  and  Tow — (3)  When  Tug  Liable  Alone. — A  car  afloat  in  tow 
of  a  tug  is  not  responsible  to  a  scow  for  damages  resulting  from  a  collision  be- 
tween the  scow  and  the  float,  where  the  tug  alone  was  at  fault. ^^^ 

4.  Precaution  to  Prevent  Collision. — Under  rule  11  of  the  supervising 
inspectors  of  steam  vessels,  adopted  pursuant  to  section  2  of  the  inland  rules 
CAct  June  7,  1897,  c.  4.  30  Stat.  102  [U.  S.  Comp.  St.  1901,  p.  2884]),  the  lights 
thereby  required  to  be  carried  by  a  scow  in  tow  are  not  solely  to  prevent  collision 
with  herself,  but  also  to  assist  in  indicating  to  approaching  vessels  the  number 
and  length  of  the  tow  and  positions  of  the  vessels ;  and  she  may  be  charged 
with  contributory  fault  for  a  collision  with  another  vessel  of  the  tow  because 
of  her  failure  to  comply  with  such  rules. ^^* 

V.  Rights  and  Liabilities  Growing  Out  of  Collision. 
A.     What  Law  Governs. — See  post,  Conflict  of  Laws.     See,  also,  ante, 
Admiralty,  p.  10. 

923-50.        Steam     vessels— Speed.— "L'n-  Eugene  F.  Moran,  154  F.  41,  83  C.  C  A. 

doubtedly  the  fog  was  exceedingl}'  dense,  153;  The  Charles  fi.  Matthews,  Id.;  The  15 

that  fact  is  uncontradicted,  and  the  steamer  D  and  18  D,  Id.,  and  (C.  C.  A.)  170  F.  928. 

had  not  'reduced  her  speed  to  such  a  rate  answered.     The  Eugene  F.  Moran,  212  U. 

as    would    enable    her  to    stop  in    time    to  S.  4G6.  53  L.  Ed.  000.  29  S.  Ct.  339. 
avoid  collision  after  an  approaching  vessel  932-99a.  Lights  and  other  visible  signals, 

cafne  in  sight,  provided  such  approaching  — (U.  S.  C.  C.  A.,  N.  Y.)  The  Eugene  F. 

vessel  were  herself  going  at  the  moderate  Moran,    170   F.  928,   96  C.    C.  A.  144:    The 

speed  required  by  law.'"     La  Bourgogne,  Charles  E.  Matthews,  Id.;  Scows  15  D  and 

210  U.  S.  95,  114.  52  L.   Ed.  973,  28  S.  Ct.  18    D.    Id.      Certified    questions    answered 

G64,   citing  The   Chattahoochee,   173   U.    S.  The  Eugene  F.  Moran,  212  U.  S.  466.  53  L. 

540,  43  L.  Ed.  801.  Ed.  600,  29  S.  Ct.  339. 

931-95a.    When    tug    alone    liable.— The 

243 


935-949 


COMMERCIAL  TREATIES. 


Vol.  III. 


E.  Division  of  Loss  in  Case  of  Mutual  Fault — 2.  Admiralty  Rule — a. 
Loss  or  Injury  Sustained  by  Vessels. — See  note  20. 

VI.  Actions  or  Suits  for  Collision. 

A.  Jurisdiction. — As  to  admiralty  jurisdiction  in  suit  for  collision,  see  ante, 
Admiralty,  p.  10.  As  to  concurrent  remedy  at  common  law,  see  ante,  Ad- 
miralty, p.  10. 

COLOR  OF  TITLE. — See  post,  Limitation  of  Actions  and  Adverse  Pos- 
session. 

COMBINATION.— See  note  a. 

COMBINATIONS. — See  post.  Patents.  As  to  combinations  to  control  trans- 
portation, see  post,  Monopolies  and  Corporate  Trusts. 

COMBINATIONS  IN  RESTRAINT  OF  TRADE.— See  post.  Interstate 
and  Foreign  Commerce;  Monopolies  and  Corporate  Trusts;  Restraint  of 
Trade. 

COMITY. — See  post.  Conflict  of  Laws;  Constitutional  Law. 

COMMERCE.— See  note  1. 

COMMERCIAL  AGREEMENTS  AND  CONVENTIONS.— See  post.  Rev-. 
ENUE  Laws;  Treaties. 

COMMERCIAL  PAPER.— See  ante,  Bills,  Notes  and  Checks,  p.  204. 

COMMERCIAL  TREATIES.— See  post,  Revenue  Laws;  Treaties. 


935-20.  Apportionment. — The  damages 
sustained  by  a  car  afloat  in  tow  of  a  tug 
hired  to  carry  her  from  place  to  place  in 
a  harbor  as  the  result  of  a  collision  with 
one  of  two  scows  in  tow  of  another  tug, 
for  which  both  scows  and  both  tugs  were 
severally  at  fault,  should  be  assessed 
equally  upon  the  four  offending  vessels, 
although  the  scows  are  the  property  of 
the  same  owner.  Certified  questions 
(1906)  The  Eugene  F.  Moran.  154  F.  41, 
83  C.  C.  A.  153;  The  Charles  E.  Matthews, 
Id.;  The  15  D  and  18  D.  Id.,  and  (C.  C.  A. 
1909)  170  F.  928,  answered.  The  Eugene 
F.  Moran,  212  U.  S.  466,  53  L.  Ed.  600,  29 
S.  Ct.  339. 

The  damages  sustained  by  one  of  two 
scows  in  tow  of  a  tug  as  a  result  of  a  col- 
lision with  a  car  float  in  tow  of  another 
tug,  for  which  both  scows  and  both  tugs 
were  severally  at  fault,  should  be  assessed 
equally  on  all  four  offending  vessels,  the 
libelant's  two  scows  each  bearing  its  pro- 
portion of  the  loss.  Certified  questions 
(1906)  The  Eugene  F.  Moran,  154  F.  41,  83 
C.  C.  A.  153;  The  15  D  and  18  D,  and  (C. 
C.  A.  1909)  170  F.  928,  answered.  The  Eu- 
gene F.  Moran,  212  U.  S.  466.  53  L.  Ed.  600, 
29  S.  Ct.  339.  See  post,  TOWAGE,  TUGS 
AND  TOWS. 

948-a.  Combination  within  meaning  of 
patent  law.- — "A  combination  is  a  composi- 
tion of  elements,  some  of  which  may  be 
old  and  others  new,  or  all  old  or  all  new. 
It  is,  however,  the  combination  that  is  the 
invention,   and   is   as   much   a  unit   in   con- 


templation of  law  as  a  single  or  non- 
composite  instrument.  Whoever  uses  it 
without  permission  is  an  infringer  of  it." 
Leeds,  etc.,  Co.  v.  Victor,  etc.,  Mach.  Co., 
213  U.  S.  325,  332,  53  L.  Ed.  816,  29  S.  Ct. 
503.     See  post,   PATENTS. 

949-1.  Commerce  among  the  states. — 
In  the  constitutional  provision  conferring 
upon  congress  the  power  "to  regulate 
commerce  *  *  *  among  the  several  states," 
the  term  commerce  comprehends  more 
than  the  mere  exchange  of  goods.  It  em- 
braces commercial  intercourse  in  all  its 
branches,  including  transportation  of  pas- 
sengers and  property  by  common  carriers, 
whether  carried  on  by  water  or  by  land. 
Second  Employers'  Liability  Cases,  223  U. 
S.  1,  46,  56  L.  Ed.  327,  32  S.  Ct.  169.  .See 
post,  INTERSTATE  AND  FOREIGN 
COMMERCE. 

Commerce  atnong  the  several  states 
comprehends  traffic,  intercourse,  trade, 
navigation,  communication,  the  transit  of 
persons  and  the  transmission  of  inessages 
by  telegraph — indeed,  every  species  of 
commercial  intercourse  among  the  several 
States,  but  not  to  that  commerce  "com- 
pletely internal,  which  is  carried  on  be- 
tween man  and  man,  in  a  state,  or  be- 
tween different  parts  of  the  saine  state, 
and  which  does  not  extend  to  or  affect 
other  states."  Adair  v.  United  States,  208 
U.  S.  161,  176,  52  L.  Ed.  436,  28  S.  Ct.  277. 
See  International  Textbook  Co.  v.  Pigg, 
217  U.  S.  91,  106,  54  L.  Ed.  678>  30  S.  Ct. 
481. 


244 


Vol.  III.  COMMON  LAW.  956-962 

COMMITMENT  AND  PRELIMINARY  EXAMINATION  OP  ACCUSED.— 

See  the  title  Commitment  and  PrHliminary  Examination  of  Accused,  vol.  3, 
p.  951,  and  references  there  given. 
COMMODITY.— See  note  1. 

COMMON  CARRIERS.— See  post,  Carriers;  Ships  and  Shipping;  Street 
Railways;  Telegraphs  and  Telephones. 

COMMON  LAW. 

I.  Definitions,  Nature  and  General  Consideration,  245. 
A.  Definitions,  245. 

V.  Adoption  of  Common  Law,  245. 

A.  Adoption  in  States,  245. 

3.  Methods  of  Adoption,  245. 

b.  Constitutional  Provisions,   145. 

c.  Recognition  by  Courts,  245. 

7.  Adoption  of   Particular  Common-Law  Principles,  245. 
u.  \\'ater  and  Riparian  Rights,  245. 
D.  Adoption  in  the  District  of  Columbia,  246. 

IX.  Evidence  of,  246. 

D.  Presumption  and   Burden  of   Proof,  246. 

CROSS  REFERENCES. 

See  the  title  Common  Law,  vol.  3,  p.  958,  and  references  there  given. 
In  addition,  see  post.  Conflict  of  Laws;    Foreign  Laws. 

I.  Definitions,  Nature  and  General  Consideration. 
A.    Definitions. — See  note  2. 

V.  Adoption  of  Common  Law. 

A.  Adoption  in  States — 3.  Methods  of  Adoption — b.  Constitutional  Pro- 
visions.-— Constitutional  and  Statutory  Provisions  or  Judicial  Decisions. 

— The  common  law  has  been  adopted  by  constitutional  provision,  by  statute  or 
decision. ^"^ 

c.    Recognition  by  Courts. — See  ante,  "Constitutional  Provisions,"  V,  A,  3,  b. 

7.  Adoption  of  Particular  Common-Law  Principles — u.  Water  and  Ri- 
parian  Rights. — Riparian  Rights    in    Arizona. — The  general  adoption  of  the 

956-1.  Interest  in  commodities. — The  other  written  can  make  no  difference  in 
ownership  by  a  railway  carrier  of  stock  their  validity  or  effect.  Western  Union 
in  a  bona  fide  corporation  manufacturing,  Tel.  Co.  v.  Commercial  Milling  Co.,  218  U. 
mining,  producing  or  owning  the  com-  S.  406,  54  L.  Ed.  1088,  31  S.  Ct.  59. 
modity  carried  is  not  the  "interest,  direct  962-17a.  Constitutional  and  statutory 
or  indirect."  in  such  commodity,  forbidden  provisions  or  judicial  decision. — The  com- 
to  the  carrier  by  the  Hepburn  Act  of  June  mon  law  did  not  become  a  part  of  the  laws 
29,  1906,  but  such  words  are  to  be  taken  of  the  states  of  its  own  vigor.  It  has  been 
as  embracing  only  the  legal  and  equitable  adopted  by  constitutional  provision,  by 
interests  in  the  commodities  to  which  statute  or  decision,  and  is  not  the  same  in 
they  refer.  Attorney  General  v.  Dela-  all  particulars  in  all  the  states.  But  how- 
ware,  etc..  Co.,  213  U.  S.  366,  53  L.  Ed.  ever  adopted,  it  expresses  a  policy  of  the 
835,  29  S.  Ct.  527.  See  post.  INTER-  state  for  the  time  being  only  and  is  sub- 
STATE   AND  FOREIGN  COMMERCE.  ject  to  change  by  the  power  that  adopted 

960-2.  Rules  of  conduct  proceeding  from  it.     It   can    not    have   an  efficacy   that   the 

supreme  power  of  state. — Both   the   com-  statute     changing    it    does    not     possess, 

mon  law  and  statutes  are  rules  of  conduct  Western    Union    Tel.    Co.    v.    Commercial 

proceeding  from  the  supreme  power  of  the  Milling  Co.,  218  U.  S.  400,  54  L.  Ed.  1088, 

state.      That    one    is    unwritten    and    the  31  S.  Ct.  59. 

245 


966-976 


COMPACTS. 


Vol.  III. 


common  law  in  Arizona  did  not  include  the  common-law  doctrine  of  riparian 
rights.'' ^^ 
D.    Adoption  in  the  District  of  Columbia. — See  note  89. 

IX.  Evidence  of. 

D.  Presumption  and  Burden  of  Proof. — Presumption  as  to  Law  of  a 
Foreign  Country. — As  between  two  common-law  countries,  the  common  law  of 
one  reasonably  may  be  presumed  to  be  what  it  is  decided  to  be  in  the  other  in 
a  case  tried  in  the  latter  state,  but  this  is  not  true  of  a  country  in  which  the  com- 
mon law  is  not  in  vog::2.^^^ 

COMMON  PROPERTY.— See  post,  Joint  Tenants  and  Tenants  in 
Common. 

COMMON  STOCK.— See  post.  Stock  and  Stockholders. 

COMMUNITY  ESTATE. — See  post.  Executors  and  Administrators. 

COMMUNITY  PRO±'ERTY.— See  post.  Husband  and  Wife. 

COMMUTATION  OF  SENTENCE.— See  post.  Habeas  Corpus;  Military 
Law;  Pardon;  Sentence  and  Punishment.  And  see  post,  Mitigation  o^ 
Sentence. 

COMPACTS.— See  post.  Revenue  Laws;  States;  Treaties. 


966-61a.  The  general  adoption  of  the 
common  law  by  Howell's  Ariz.  Code,  1864. 
chap.  6],  §  7,  can  not  be  deemed  to  have 
included  the  common-law  doctrine  of  ri- 
parian rights,  in  view  of  the  declaration 
of  the  Bill  of  Rights,  art.  22.  that  streams 
susceptible  of  use  for  irrigation  purposes 
are  public  property,  and  of  the  various 
provisions  of  chap.  55  of  the  Code,  giving 
those  owning  or  possessing  irrigable  lands 
the  right  to  divert,  by  means  of  irrigating 
canals,  necessary  water  from  any  conven- 
ient stream.  This  was  merely  the  adop- 
tion of  a  general  system  <as  against  another 
general  system  (the  Spanish-MexicanY 
that  had  been  in  force.  Boquillas  Land, 
etc..  Co.  T'.  Curtis,  213  U.  S.  339,  53  L,  Ed. 
822.  29  S.  Ct.  493.  See  post,  WATERS 
AND  WATERCOURSES. 

973-89.  District  of  Columbia.— The  com- 
mon law  in  force  in  Maryland.  Feb.  27, 
1801.  remains  in  force  in  the  District  of 
Columbia,  except  as  the  same  may  be  in- 
consistent with  or  replaced  by  some  provi- 
sion of  the  Code  for  the  district.  Craw- 
ford r.  United  States,  212  U.  S.  183,  195, 
53  L.  Ed.  465,  29  S.  Ct.  260. 

976-1  la.  Presumption  as  to  law  of  a  for- 
eign country. — The  law  of  Spain  was  in- 
herited by  Cuba,  and  it  may  be  presumed 
has  continued  it  with  such  modifications 
as  later  years  may  hav  brought.  There 
is  no  general  presumption  that  that  law  is 
the  same  as  the  common  law:  on  the  other 
hand,  it  may  be  properly  said  that  it  is 
known  to  be  otherwise.  "Whatever  pre- 
sumption there  is,  is  purely  one  of  fact, 
that  may  be  corrected  by  proof.  There- 
fore, the  presumption  should  be  limited  to 
cases   in  which  it  reasonably  may  be  be- 


lieved to  express  the  fact.  Generally 
speaking,  as  between  two  common-law 
countries,  the  common  law  of  one  reason- 
ably may  be  presumed  to  be  what  it  is  de- 
cided to  be  in  the  other,  in  a  case  tried  in 
the  latter  state.  But  a  statute  of  one 
would  not  be  presumed  to  correspond  to 
a  statute  in  the  other,  and  when  we  leave 
common-law  territory  for  that  where  a 
different  system  prevails  obviously,  the 
limits  must  be  narrower  still."  Cuba  R. 
Co.  r.  Crosbv,  222  U.  S.  473,  479,  56  L.  Ed. 
274.  32  S.  Ct.  132.  See  post,  FOREIGN 
LAWS. 

While  it  may  be  that  in  dealing  with 
rudimentary  contracts  or  torts  made  or 
committed  abroad,  such  as  promises  to 
pay  money  for  goods  or  services,  or  bat- 
tery of  the  person  or  conversion  of  goods, 
courts  will  assume  a  liability  to  exist  if 
nothing  to  the  contrary  appears,  as  such 
matters  are  likely  to  impose  an  obligation 
in  all  civilized  countries,  it  can  not  be  as- 
sumed without  proof  that,  under  the  law 
of  Cuba,  like  that  of  the  forum,  a  promise 
to  repair  or  replace  defective  machinery, 
when  notified  by  an  employee  of  the  de- 
fect, throws  upon  the  master  the  risk  of 
injury  to  such  employee  from  such  defect 
until  the  time  for  performance  has  ex- 
pired, or  that  it  does  away  with  or  leaves 
to  the  jury  what  otherwise  would  be  neg- 
ligence as  a  matter  of  law.  This  liability 
of  the  master  is  evidence  of  the  great 
consideration  with  which  workmen  are 
treated  here,  but  can  not  be  deemed  a 
necessary  incident  to  all  civilized  codes. 
Cuba  R.  Co.  T'.  Crosbv.  222  U.  S.  473,  478, 
56  L.  Ed.  274,  32  S.  Ct.  132. 


246 


Vol.  III.  CONDITIONAL  SALES.  977-1004 

COMPARATIVE  NEGLIGENCE.— See  post,  Master  and  Servant;  Neg- 
ligence. 

COMPENSATION.— See  note  3. 

COMPLIANCE.— See  note  la. 

COMPROMISE  AND  SETTLEMENT.— See  the  title  Compromise  and  Set- 
tlement, vol.  3,  p.  980,  and  references  there  given.  As  to  construction  of  term 
"remainder,"  as  used  in  a  family  settlement,  see  post,  Descent  and  Dis- 
tribution. 

COMPTROLLER  OF  CURRENCY.— As  to  false  reports  made  to  the  comp- 
troller of  the  currencv,  see  ante,  Banks  and  Banking,  p.   184. 

COMPUTATION  OF  PAY  OF  OFFICERS.— See  ante,  Army  and  Navy, 
p.  150. 

CONCEALMENT.— See  post.  Estoppel;  Fraud  and  Deceit. 

CONCLUSIONS  OF  LAW.— See  post,  Legal  Conclusions. 

CONCRETE. — "Concrete  is  an  artificial  stone.  It  is  a  product  resulting  from 
a  comhination  of  sand  or  gravel  or  broken  bits  of  limestone,  with  water  and 
cement ;  a  combination  which  requires  ordinarily  the  use  of  both  skill  and  ma- 
chinery."'^ 

CONCURRENT  JURISDICTION.— See  ante.  Admiralty,  p.  10;  Bound- 
aries, p.  206 ;  post,  Courts. 

CONCURRING  NEGLIGENCE.— See  post.  Fellow  Servants. 

CONDEMNATION  OF  PRIZE.— See  post,  Prize. 

CONDEMNATION   OF   PROPERTY.— See  post.   Eminent  Domain. 

CONDEMNATION  PROCEEDING.— See  post.  Eminent  Domain;  Es- 
toppel. 

CONDITIONAL  SALES.— See  post.  Sales. 

977-3.      Just     compensation. — Just    com-  measured    by    the    loss    resulting    to    him 

pensation  to  the  owner  of  a  farm,  a  part  from    the    appropriation.      In    recognition 

of  which  is  taken  by  the  United  States  by  of  this   principle   of  justice   it   is   required 

permanently  flooding  it  in  improving  navi-  that  regard  be  had  to  the  effect  of  the  ap- 

gation,   as   an   incident   to  which   a  public  propriation    of   a   part    of   a    single   parcel 

highway  crossing  the  flooded  land  is  also  upon  the  remaining  interest  of  the  owner, 

flooded,    demands    an    award    of   the    dam-  by   taking  into   account   both   the   benefits 

ages   to   that   part   of   the   farm   not   taken  which   accrue   and   the   depreciation   which 

by  reason   of  the  destruction  of  the  ease-  results    to    the    remainder   in    its    use    and 

ment  of  access  to  the  turnpike  by  way  of  value.     United  States  v.   Grizzard,  219  U. 

the    highway    thus    destroyed.      The    con-  S.   180.   55   L.   Ed.   165,  31   S.   Ct.   162.     See 

stitutional   limitation    upon    the    power   of  post,   EMINENT  DOMAIN, 
eminent   domain   possessed   by  the  United  979-la.    Compliance. — See  Cherokee  Na- 

States  is  that  "private  property  shall  not  tion  v.  Whitmire,  223  U.  S.  108,  56  L.  Ed. 

be  taken  for  public  use  without  just  com-  370,  32   S.  Ct.  200.     See  post,  INDIANS; 

pensation."       The     "just     compensation"  TREATIES. 

ihus    guaranteed    obviously    requires    that  1004-a.    Concrete. — Friday  v.   Hall,   etc., 

the  recompense  to  the  owner  for  the  loss  Co.,  216  U.   S.  449,   455,  54' L.   Ed.  562,  30 

caused  to  him  by  the  taking  of  a  part  of  S.    Ct.   261. 
a  parcel,  or   single  tract  of  land,   shall   be 

247 


1005-1008  COXFESSIOX  OP  JUDGMEXTS.  \'ol.  HI. 


CONDITIONS. 

in.  Conditions  Precedent  and  Subsequent  Defined  and  Distinguished, 

248. 
VIII.  Manner  of  Asserting  Reserved  Right  upon  Breach  of  Condition, 

248. 
IX.  Conditions  Distinguished  from  Covenants  and  Agreements,  248. 

CROSS  REFERENCES. 
See  the  ptle  Conditions,  vol.  3,  p.  1004,  and  references  there  given. 
In  addition,  see  post,  Limitation  op  Actions  and  Adverse  Possession.  As 
to  conditions  in  bonds  generally,  see  ante,  Bonds,  p.  205 ;  in  contracts,  see  post, 
Contracts;  in  contracts  for  the  sale  of  land,  see  post.  Vendor  and  Purchaser; 
in  deeds,  see  post,  Deeds;  Vendor  and  Purchaser;  in  gifts,  see  post.  Gifts; 
in  grants  of  public  land,  see  post.  Public  Lands. 

III.   Conditions  Precedent  and"  Subsequent  Defined  and  Distinguished. 

Conditions  Precedent  in  Contracts. — See  note  3. 

Conditions  Subsequent  in  Contracts. — A  condition  subsequent  in  a  con- 
tract presupposes  a  contract  in  effect  which  may  be  defeated  by  the  happening 
or  performance  of  a  condition.^^ 

Vni.  Manner  of  Asserting  Reserved  Right  upon  Breach  of  Condition. 

See  note  20. 

IX.  Conditions   Distinguished   from   Covenants   and  Agreements. 

It  frequently  has  been  the  case  that  the  word  condition  has  been  used  in  writ 
ten  instnmients  in  a  looser  and  broader  sense  than  the  law  attaches  to  it.  In 
ascertaining  the  true  meaning  of  instruments  in  writing  courts  do  not  confine 
their  attention  to  single  words,  phrases,  or  sentences.  The  meaning  is  sought 
from  the  whole  instrument,  viewed  in  the  light  of  the  subject  with  which  it 
deals.  This  general  rule  of  interpretation  often  makes  it  manifest  that  that 
which  is  called  a  condition  is  really  but  a  covenant  or  agreement,  to  be  per- 
formed independently  of  the  counter  obligation  with  which  it  is  associated. 
When  such  an  intent  is  discovered  the  courts  have  no  difficulty  in  giving  it  ef- 
fect, though  the  result  be  to  disregard  the  technical  meaning  of  the  word  "con- 
dition."2i 

CONFESSION  OF  JUDGMENT.— See  post,   ^'dcments  and  Decrees. 

1005-3.    Conditions    precedent    in    con-  right  upon  breach  of  condition  in  public 

tracts. — Title   Guaranty,   etc.,   Co.  v.   Nich-  grant. — Spokane,  etc.,  R.  Co.  v.  Washing- 

ols,  224  U.  S.  346,  56  L.  Ed.  795,  32  S.  Ct.  ton,  etc.,   R.   Co.,  219  U.   S.  166,   55   L.   Ed. 

475.                                _  159,   31    S.   Ct.    182. 

1006-5a.    Conditions   subsequent   in   con-  1008-21.     Conditions   distinguished   from 

tracts. — Title   Guaranty,   etc..   Co.  z'.   Nich-  covenants  and  agreements. — Green  County 

ols,  224  U.  S.  346,  56  L.  Ed.  795,  32  S.  Ct.  v.   Quinlan.   211    U.    S.   582,   594,   53   L.    Ed. 

475.  335,    29    S.    Ct.    162. 


1008-20.    Manner    of    asserting    reserved 


i48 


Vol.  III.  COXFLICTIXG   JURISDICTION.  1010-1018 


CONFESSIONS. 

II.  Admissibility,  249. 

A.  Extrajudicial   Confessions,  249. 

3.  Test  of  Admissibility,  249. 

4.  Voluntary  Character,  249. 

d.  Questions  of  Law  and  Fact,  249. 

IV.  Weight  and  Sufficiency,  249. 

B.  Necessity  for  Corroboration,  249. 

CROSS  REFERENCES. 

See  the  title  CoxFESsioxs,  vol.  3,  p.  1009,  and  references  there  given. 
In  addition,  see  ante,  Appeal  and  Error,  p.  34. 

n.  Admissibility. 

A.  Extrajudicial  Confessions — 3.    Test  oe  Admissibility. — See  note  7. 
4.    Voluntary  Character — d.    Questions  of  Lazv  and  Fa^t. — See  note  29. 

IV.  Weight  and  Sufficiency. 

B,  Necessity  for  Corroboration. — Corroboration  of  Confession  of 
Conspirator. — An  objection  to  a  confession  by  an  alleged  criminal  conspirator 
on  the  ground  that  it  is  uncorroborated,  and  is  therefore  insufficient  to  support 
a  conviction,  can  not  be  sustained  where  there  is  evidence  tending  to  show  the 
formation  of  the  conspiracy,  his  complicity  therein,  and  his  acts  in  furtherance 
thereof,  without  the  confession.^^^ 

CONFIDENTIAL  COMMUNICATIONS.— See  post.  Privileged  Commuxi- 
catioxs. 

CONFIRMATION. — "Confirmation  is  the  approbation  or  assent  to  an  estate 
already  created,  which,  as  far  as  is  in  the  confirmer's  power,  makes  it  good  and 
valid ;  so  that  the  confirmation  doth  not  regularly  create  an  estate ;  but  yet  such 
words  may  be  mingled  in  the  confirmation,  as  may  create  and  enlarge  an  estate ; 
but  that  is  by  force  of  such  words  that  are  foreign  to  the  business  of  con- 
firmation."^^ 

CONFIRMATION  OF  LAND   CLAIMS.— See  post.  Public  Laxds. 

CONFISCATION   OF  PROPERTY.— See  post,  War. 

CONFLICTING  JURISDICTION.— See  ante,  Boundaries,  p.  206:  post, 
Col'RTs  ;    Fisii  axd  Fisheries;    Foretgx  Corporatioxs. 

1010-7.    Test   of   admissibility. — Kent   v.  Patent  to  land  confirming  a  decree. — It 

Porto  Rico,  207  U.   S.  113,  52   L.   Ed.   127,  is    not    to    be    understood    that    when    the 

28  S.  Ct.  55.  United  States  executed  a  document  on  the 

1014-29.     Conflict   of   evidence. — Kent  z\  footing   of  an    earlier  grant   bj'   a   former 

Porto   Rico,   207  U.   S.  113,  52   L.   Ed.  127.  sovereign  it  intended  or  purported  to  en- 

28  S.  Ct.  55.  large  the  grant.     A  patent  of  the  United 

1018-61a.    Corroboration  of  confession  of  States  issued  pursuant  to  a  decree  of  the 

cofispirator. — Hyde    z:    United    States,    35  court    of   private    land    claims    confirming 

App.  D.  C.  451,  writ  of  certiorari  granted.  a  Mexican  grant,  did  not  confer  additional 

Hyde  t'.   United   States,   218   U.   S.   681,   54  riparian  rights.     Boquillas  Land,  etc.,   Co. 

L.   Ed.   1207,   31    S.   Ct.  228.  r.    Curtis,    213    U.    S.    339,    344.    53    L.    Ed. 

1018-la.    Confirmation.— Boquillas  Land,  822,    29    S.    Ct.    493.      See    post,    PUBLIC 

etc..  Co.  z\  Curtis.  213  U.  S.  339,  344,  53  L-  LANDS. 
Ed.   822.  29   S.   Ct.   493. 

249 


CONFLICT  OF  LAWS.  Vol.  III. 


CONFLICT  OF  LAWS. 

I.  Definition  and  General  Consideration,  251. 
B.  General   Consideration,  251. 

II.  Exclusiveness  of  Powers  Exercised  by  States  and  Countries,  251. 
A.  In  General,  251. 

III.  Extraterritorial  Operation  of  Laws,  251. 

A.  In  General,  251. 

B.  Comity,   251. 

1.  Definitions  and  Nature,  251. 

2.  Operation  and  Effect  of  Comity,  251. 

a.  In  General,  251. 

b.  Exceptions  to  General  Rule,  252. 

(2)    Injustice  or  Detriment  to  Citizens  of  Forum,  252. 
e.  Comity  between   State  and   F'ederal  Courts,  252. 

VI.  Realty  and  Personalty,  252. 

A.  Realty,  252. 

1.  In  General,  252. 

5.  Conveyance  of  Land  by  Foreign  Decree.  252. 

VII.  Contracts,  252. 

B,  Lex  Loci  Contractus,  252. 

2.  Place  of  Making,  252. 

VIII.  Wills,  Descent,   Distribution  and  Administration,  252. 

A.  Wills.  252. 

1.  Disposing  of  Realty,  252. 

a.  In  General,  252. 

B.  Descent  and  Distribution,  252. 

3.  Realty,  252. 

C.  Administration,  253. 

X.  Penal  and  Criminal  Laws,  253. 

A.  Penal  Laws,  253. 

2.  General  Rule,  253. 

B.  Criminal  Laws,  253. 

XI.  Torts,  253. 

A.  Injuries  to  Persons  or  Personalty,  253. 

1.  General  Consideration,  253. 

2.  Agreement  of  Lex  Fori  and  Lex  Loci,  253. 

b.  Statutory  Torts,  253. 

XII.  Admiralty,  Maritime  Law  and  Navigation,  253. 

D.  Cases  Arising  on  High  Seas  beyond  Jurisdiction  of  Any  Nation,  253. 
F.  Torts,  254. 

CROSS  REFERENCES. 

See  the  title  Conflict  of  Laws,  vol.  3,  p.  1020,  and  references  there  given. 

In  addition,  see  ante,  AliFns,  p.  18;  Appeal  and  Error,  p.  34;  post.  Foreign 
Judgments,  Records  and  Judicial  Proceedings. 

As  to  federal  decision  in  conformity  with  decision  of  state  courts,  see  post. 
Courts. 

250 


Vol.  III. 


COXFLICT  OF  LAWS. 


1025-1031 


I.  Definition  and  General  Consideration. 
B.  General  Consideration. — See  note  4. 

II.  Exclusiveness  of  Powers  Exercised  by  States  and  Countries. 
A.  In  General. — See  note  7. 

III.  Extraterritorial  Operation  of  Laws. 

A.  In  General. — See  note  24. 

B.  Comity — 1.  Definitions  and  Nature:. — See  note  28. 

2.  Operation  and  Effect  of  Comity — a.  In  General. — See  note  30. 


1025-4.  Rights  generally  determined  by 
laws  of  country  where  they  arise. — When 
an  action  is  brought  upon  a  cause  arising 
outside  of  the  jurisdiction  it  always 
should  be  borne  in  mind  that  the  duty  of 
the  court  is  not  to  administer  its  notion 
of  justice  but  to  enforce  an  obligation 
that  has  been  created  by  a  different  law. 
The  law  of  the  forum  is  material  only  as 
setting  a  limit  of  policy  beyond  whicli 
such  obligations  will  not  be  enforced 
there.  With  very  rare  exceptions  the  lia- 
bilities of  parties  to  each  other  are  fixed 
by  the  law  of  the  territorial  jurisdiction 
within  which  the  wrong  is  done  and  the 
parties  are  at  the  time  of  doing  it.  That 
and  that  alone  is  the  foundation  of  their 
rights.  Cuba  R.  Co.  v.  Crosby,  222  U.  S. 
473,  478,  56  L.  Ed.  274,  32  S.  Ct.  132.  See 
American  Banana  Co.  v.  United  States 
Fruit  Co.,  213  U.  S.  347,  356,  53  L.  Ed. 
826,  29  S.  Ct.  511;  Bean  v.  Morris.  221  U. 
S.  485,  55  L.  Ed.  821,  31  S.  Ct.  703.  See 
post.  FOREIGN  LAWS. 

"The  only  justification  for  allowing  a 
party  to  recover  when  the  cause  of  ac- 
tion arose  in  another  civilized  jurisdiction 
is  a  well  founded  belief  that  it  was  a  cause 
of  action  in  that  place.  The  right  to  re- 
cover stands  upon  that  as  its  necessary 
foundation.  It  is  part  of  the  plaintiff's 
case,  and  if  there  is  reason  for  doubt  he 
must  allege  and  prove  it.  The  extension 
of  the  hospitality  of  our  courts  to  for- 
eign suitors  must  not  be  made  to  cover 
for  injustice  to  the  defendants  of  whom 
they  happen  to  be  able  to  lay  hold."  Cuba 
R.  Co.  V.  Crosby,  222  U.  S.  473,  479,  56 
L.   Ed.  274,  32   S.   Ct.   132. 

It  is  the  settled  law  of  the  federal  su- 
preme court  that  in  statutory  actions  for 
personal  injuries,  the  law  of  the  place  is 
to  govern  in  enforcing  the  right  in  an- 
other jurisdiction.  Atchison,  etc.,  R.  Co. 
V.  Sowers,  213  U.  S.  55,  53  L.  Ed.  695.  29 
S.   Ct.    397. 

1025-7.  Each  state  or  country  sovereign. 
— "Each  state  may,  subject  to  the  restric- 
tions of  the  federal  constitution,  determine 
the  limits  of  the  jurisdiction  of  its  courts, 
the  character  of  the  controversies  which 
shall  be  heard  in  them,  and,  specifically, 
how,  far  it  will,  having  jurisdiction  of  the 
parties,  entertain  in  its  courts  transitory 
actions,    where    the    cause    of    action  has 


arisen  outside  its  borders.''  St.  Louis, 
etc.,  R.  Co.  V.  Taylor,  210  U.  S.  281,  285, 
32  L.  Ed.  1061,  28  S.  Ct.  616;  Atchison, 
etc.,  R.  Co.  V.  Sowers,  213  U.  S.  55,  53  L. 
Ed.   695,   702,   29   S.   Ct.  397. 

Powers  ceded  to  federal  government. — 
Atchison,  etc.,  R.  Co.  z\  Sowers,  213  U.  S. 
.)5,  53  L.  Ed.  695,  29  S.  Ct.  397.  See  post, 
CONSTITUTIONAL  LAW. 

1029-24.  Statutes.— Galveston,  etc.,  R. 
Co.  V.  Wallace,  223  U.  S.  481,  490,  56  L. 
Ed.  510.  32  S.  Ct.  205. 

1030-28.  Comity  defined.  —  Disconto 
Gesellschaft  v.  Umbreit,  208  U.  S.  570,  579, 
52  L.  Ed.  625,  28  S.  Ct.  337. 

1031-30.  Operation  and  effect  of  comity. 
— "At  one  time  there  was  some  question 
both  as  to  the  duty  and  power  to  try 
civil  cases  arising  solely  under  the  stat- 
utes of  another  state.  But  it  is  now  recog- 
nized that  the  jurisdiction  of  state  courts 
extends  to  the  hearing  and  determination 
of  any  civil  and  transitory  cause  of  action 
created  by  a  foreign  statute,  provided  it 
is  not  of  a  character  opposed  to  the  pub- 
lic policy  of  the  state  in  which  the  suit  is 
brought.  Where  the  statute  creating  the 
right  provides  an  exclusive  remedy,  to  be 
enforced  in  a  particular  way,  or  before  a 
special  tribunal,  the  aggrieved  party  will 
be  left  to  the  remedy  given  by  the  statute 
which  created  the  right.  But  jurisdiction 
is  not  defeated  by  implication."  Galves- 
ton, etc.,  R.  Co.  V.  Wallace.  223  U.  S.  481, 
490,  56  L.  Ed.  516,  32  S.  Ct.  205. 

Considering  the  relation  between  the 
federal  and  the  state  government,  there  is 
no  presumption  that  congress  intended  to 
prevent  state  courts  from  exercising  the 
general  jurisdiction  already  possessed  by 
them,  and  under  which  they  had  the 
power  to  hear  and  determine  causes  of 
action  created  by  federal  statute.  Robb 
V.  Connolly,  111  U.  S.  624.  637,  28  L.  Ed. 
542,  4  S.  Ct.  544.  On  the  contrary,  the  ab- 
sence of  such  provision  would  be  con- 
strued as  recognizing  that  where  the 
cause  of  action  was  not  penal,  but  civil 
and  transitory,  it  was  to  be  subject  to  the 
principles  governing  that  class  of  cases, 
and  might  be  asserted  in  a  state  court  as 
well  as  in  those  of  the  LTnited  States.  This 
presumption  would  be  strengthened  as  to 
a  statute  like  this  passed,  not  only  for  the 
purpose  of  giving  a  right,  but  of  affording 


251 


1033-1072 


COXFLICT  OF  LAWS. 


Vol.  III. 


b.  Exceptions    to    General  Rule — (2)   Injustice    or    Detriment  to  Citizens  of 
Forum. — See  note  Zh. 

e.  Comity  between  State  and  Federal  Courts. — See  post,  Courts. 

VI.  Realty  and  Personalty. 

A.  Realty — 1.    In  General. — See  note  45. 

5.    Conveyance   of  Land  by    Foreign    Decree. — See    post,  Foreign    Judg- 
ments, Records  and  Judicial  Proceedings. 

VII.  Contracts. 

B.  Lex  Loci  Contractus — 2.  Place  of  Making. — See  note  68. 

VIII.   Wills,   Descent,  Distribution  and  Administration. 

A.  Wills — 1.  Disposing  of  Realty — a.  In   General. — See  note  4. 

B.  Descent  and  Distribution — 3.  Realty. — See  note  22. 


a  convenient  remedy.  Galveston,  etc.,  R. 
Co.  V.  Wallace,  223  U.  S.  481,  490,  56  L. 
Ed.  516,   32   S.   Ct.  205. 

1033-35.  Rights  of  local  creditors. — AH 
civilized  nations  have  recognized  and  en- 
forced the  doctrine  that  international  com- 
ity does  not  require  the  enforcement  of 
judgments  in  such  wise  as  to  prejudice  the 
rights  of  local  creditors  and  the  superior 
claims  of  such  creditors  to  assert  and  en- 
force demands  against  property  within  the 
local  jurisdiction.  Such  recognition  is  not 
inconsistent  with  that  moral  duty  to  re- 
spect the  rights  of  foreign  citizens  which 
mheres  in  the  law  of  nations.  Speaking 
of  the  doctrine  of  comitj',  Mr.  Justice 
Story  says:  "Every  nation  must  be  the 
final  judge  for  itself,  not  only  of  the  na- 
ture and  extent  of  the  duty,  hnt  of  the 
occasions  on  which  its  exercise  may  be 
justly  demanded."  Story.  Confl.  L.,  §  33. 
Disconto  Gesellschaft  v.  Umbreit,  208  U. 
S.  570,  52  L.   Ed.  625,  629,  28  S.  Ct.  337. 

The  extent  to  which  foreign  creditors 
will  be  protected  and  their  rights  enforced 
depends  upon  the  circumstances  of  each 
case.  Disconto  Gesellschaft  v.  Umbreit, 
208  U.  S.  570,  579,  52  L.  Ed.  625,  28  S.  Ct. 
337. 

Voluntar}^  assignments  for  the  benefit 
of  creditors  should  be  given  force  in  other 
states  as  to  property  therein  situate,  ex- 
cept so  far  as  they  come  in  conflict  with 
the  rights  of  local  creditors,  or  with  the 
public  polic3^  of  the  state  in  which  it  is 
sought  to  be  enforced:  and,  "national 
comitj'-  does  not  require  any  government 
to  give  effect  to  such  assignment  (for  the 
benefit  of  creditors)  when  it  shall  impair 
the  remedies  or  lessen  the  securities  of 
its  own  citizens."  Disconto  Gesellschaft 
'v.  Umbreit,  208  U.  S.  570,  52  L.  Ed.  625,  28 
S.   Ct.  337. 

The  right  of  citizens  of  Prussia  under 
the  treaty  of  May  1st,  1828  (8  Stat,  at  L. 
378),  art.  1,  to  attend  to  their  affairs  in  the 
United  States,  and  for  that  purpose  to 
enjoy    the    same    security    and    protection 


as  natives  in  the  country-  wherein  they  re- 
side, is  not  violated  by  the  refusal  of  a 
state  court,  on  grounds  of  public  policy, 
to  apply  the  doctrine  of  comity  so  as  to 
.-subject  by  attachment,  to  the  payment  of 
an  indebtedness  due  a  German  corpora- 
tion from  a  German  subject,  a  fund  within 
the  state  to  which  one  of  its  own  citizens 
asserts  a  claim,  where  the  effect  of  judg- 
ment in  favor  of  the  corporation  would 
be  to  remove  the  fund  to  a  foreign  coun- 
try, there  to  be  administered  in  favor  of 
the  foreign  creditors.  The  extent  to 
which  the  public  policy  of  the  state  per- 
mitted recognition  of  rights  of  the  for- 
eign creditors  was  a  matter  for  the  state 
to  determine  for  itself.  Disconto 
Gesellschaft  v.  Umbreit,  208  U.  S.  570,  52 
L.  Ed.  625,  28  S.  Ct.  337. 

1035-45.  Realty  governed  by  lex  loci  rei 
sitae.— Fall  v.  Eastin,  215  U-  S.  1,  54  L. 
Ed.  65,  30  S.  Ct.  3;  Olrnsted  v.  Olmsted, 
216  U.  S.  386,  394,  54  L.  Ed.  530,  30  S. 
Ct.    292. 

"It  is  a  principle  firmly  established  that 
to  the  law  of  the  state  in  which  the  land 
is  situated  we  must  look  for  the  rules 
which  govern  its  descent,  alienation  and 
transfer,  and  for  the  effect  and  construc- 
tion of  wills  and  other  conveyances." 
Olmsted  v.  Olmsted,  216  U.  S.  386,  393,  54 
L.  Ed.  530.  30  S.  Ct.  292.  See  Fall  v. 
Eastin.  215  U.  S.  1.  54  L.  Ed.  65,  30  S.  Ct. 
3.  See  post.  DESCENT  AND  DISTRI- 
BUTION. 

1040-68.  Contracts  governed  by  law  of 
place  of  making. — "The  obligation  of  a 
contract  undoubtedly  depends  upon  the 
law  under  which  it  is  made."  Northwest- 
ern Mut.  Life  Ins.  Co.  v.  McCue,  223  U. 
S.  234.  246,  56  L.  Ed.  419.  32  S.  Ct.  220. 

1067-4.  Lex  loci  rei  sitae  governs  dis- 
position by  will. — Olmsted  f.  Olmsted,  216 
U.  S.  386,  393.  54  L-  Ed.  530.  30  S.  Ct.  292: 
Fall  7'.  Eastin,  215  U.  S.  1.  54  L.  Ed.  65, 
30  S.  Ct.  3. 

1072-22.  Realty.— Olmsted  v.  Olmsted. 
216    U.    S.    386,    393,    54  L.    Ed.    530,  30    S. 


252 


A'ol.  III. 


COXFUCT  OF  LAIVS. 


1073-1081 


C.  Administration. — See  post.  Executors  axd  Administrators. 

X.  Penal  and  Criminal  Laws. 

A.  Penal  Laws — 2.  General  Rule. — See  note  28. 

B.  Criminal  Laws. — See  note  38. 

XL  Torts. 

A.    Injuries    to    Persons    or    Personalty — 1.    General    Consideration. — 
See  note  40. 

2.  Agreement  of  Lex  Fori  and  Lex  Loci — b.  Statutory  Torts. — See  note  46. 

XII.  Admiralty,  Maritime  Law  and  Navigation. 

D.  Cases  Arising  on  High  Seas  beyond  Jurisdiction  of  Any  Nation. — 

See  note  60. 


Ct.  292;  Fall  v.  Eastin,  215  U.  S.  1.  oi  L. 
Ed.  65,  30  S.-  Ct.  3.  See  ante,  'Tn  Gen- 
eral." III.  A. 

1073-28.  Penal  laws. — Galveston,  etc.,  R. 
Co.  f.  Wallace,  223  U.  S.  481,  490,  56  L. 
Ed.  516,  32  S.  Ct.  205. 

1076-38.  Crimes. — "No  doubt  in  regions 
subject  to  no  sovereign,  like  the  high 
seas,  or  to  no  law  that  civilized  countries 
would  recognize  as  adequate,  such  coun- 
tries may  treat  some  relations  between 
their  citizens  as  governed  by  their  own 
law,  and  keep,  to  some  extent,  the  old  no- 
tion of  personal  sovereignty  alive.  *  *  * 
They  go  further,  at  times,  and  declare  that 
they  will  punish  anyone,  subject  or  not, 
who  shall  do  certain  things,  if  they  can 
catch  him.  as  in  the  case  of  pirates  on  the 
high  seas.  In  cases  immediately  affecting- 
national  interests  they  may  go  further  still 
and  may  make,  and,  if  they  get  the  chance, 
execute,  similar  threats  as  to  acts  done 
within  another  recognized  jurisdiction. 
An  illustration  from  our  statutes  is  found 
with  regard  to  criminal  correspondence 
with  foreign  governments.  Rev.  Stat., 
§  5335  (U.  S.  Comp.  Stat.  1901,  p.  3624). 
*  *  *  And  the  notion  that  English  statutes 
bind  British  subjects  everywhere  has  found 
expression  in  modern  times  and  has  had 
some  startling  applications.  *  *  *  But  the 
general  and  almost  universal  rule  is  that  the 
character  of  an  act  as  lawful  or  unlawful 
must  be  determined  wholly  by  the  law  of 
the  country  where  the  act  is  done.  *  *  *  For 
another  jurisdiction,  if  it  should  happen 
to  lay  hold  of  the  actor,  to  treat  him  ac- 
cording to  its  own  notions  rather  than 
those  of  the  place  where  he  did  the  acts, 
not  only  would  be  imjust.  but  would  be  an 
interference  with  the  authority  of  another 
sovereign,  contrary  to  the  comity  of  na- 
tions, which  the  other  state  concerned 
justly  might  resent."  American  Banana 
Co.  v.  United  States  Fruit  Co.,  213  U.  S. 
347,  53  L.  Ed.  826.  29  S.  Ct.  511.  See 
Cuba  R.  Co.  f.  Crosby.  222  U.  S.  473.  478, 
56  L.  Ed.  274,  32  S.  Ct.  132.  See  post, 
CRIMINAL  LAW. 


1077-40.  Action  for  personal  injuries 
transitory. — An  action  for  personal  in- 
juries is  universally  held  to  be  transitory, 
and  maintainable  wherever  a  court  may 
be  found  that  has  jurisdiction  of  the  par- 
ties and  the  subject  matter.  Atchison,  etc., 
R.  Co.  V.  Sowers,  213  U.  S.  55,  53  L.  Ed. 
695,  29  S.  Ct.  397. 

Death  by  wrongful  act. — Undoubtedly, 
where  the  cause  of  action  is  created  by 
the  state,  as  in  the  action  to  recover  for 
death  bj'  wrongful  injury,  there  is  no  ob- 
jection to  the  enforcement  of  the  law  be- 
cause it  arose  in  another  jurisdiction. 
Atchison,  etc.,  R,  Co.  v.  Sowers,  213  L'. 
S.   55,  53   L.   Ed.   695.  700.  29   S.   Ct.   397. 

1078-46.  Death  by  wrongful  act. — Atchi- 
son, etc.,  R.  Co.  T'.  Sowers,  213  U.  S.  55. 
53  L.  Ed.  695.  29  S.  Ct.  397. 

1081-60.  Collisions. — "It  was  also  de- 
cided in  The  Scotland,  105  U.  S.  24, 
29,  26  L.  Ed.  1001,  that,  'if  a  collision 
occurs  on  the  high  seas,  where  the 
law  of  no  particular  state  has  exclu- 
sive force,  but  all  are  equal,  any  forum 
called  upon  to  settle  the  rights  of  the 
parties  would,  prima  facie,  determine  them 
by  its  own  law,  as  presumptively  ex- 
pressing the  rules  of  justice;  but,  if  the 
contesting  vessels  belonged  to  the  same 
foreign  nation,  the  court  would  assume 
that  they  were  subject  to  the  law  of  their 
nation,  carried  imder  their  common  flag, 
and  would  determine  the  controversy  ac- 
cordingly. If  they  belonged  to  different 
nations,  having  different  laws,  since  it 
would  be  unjust  to  apply  the  laws  of 
either  to  the  exclusion  of  the  other,  the 
law  of  the  forum;  that  is.  the  maritime 
law.  as  received  and  practiced  therein, 
would  properly  furnish  the  rule  of  de- 
cision. In  all  other  cases  each  nation  will 
also  administer  justice  according  to  its 
own  laws.  And  it  will  do  this  without  re- 
spect to  persons,  to  the  stranger  as  well 
as  to  the  citizen.'"  La  Bourgogne,  210 
U.  S.  95.  52  L.  Ed.  973.  28  S.  Ct.  664.  See 
ante.  ADMIRALTY,  p.  10. 

The  international  rule  as  to  speed  per- 


253 


1082-1095  CONSBCUTIVB. 

F.    Torts.— See  note  67. 


Vol.  III. 


CONFORMITY  ACT.— See  post,  Courts. 

CONFUSION  OF  GOODS.— See  the  title  Confusion  of  Goods,  vol.  3,  p. 
10j^3,  and  references  there  given. 

CONGRESS. — See   post,   Constitutional   Law;   Statutes. 

CONNECTING  CARRIERS.— See  ante,  Carriivrs,  p.  216;  post,  Interstate 
AND  Foreign  Com  amerce. 

CONQUERED  TERRITORY.— See  post.  Constitutional  Law;  War. 

CONQUEST.— See  post.  International  Law;  War. 

CONSECUTIVE.— See  note  a. 


missible  in  a  fog,  as  interpreted  by  tlie 
courts  of  the  United  States,  and  not  by 
the  practice  under  that  rule  prevailing  in 
the  French  courts,  must  be  applied  in  a 
proceeding  by  the  owner  of  a  French  ves- 
sel lost  in  a  collision  with  a  British  ship 
en  the  high  seas,  to  obtain,  in  the  courts 
of  the  United  States,  the  benefit  of  the 
law  of  the  United  States  for  the  limitation 
of  liability  of  shipowners.  La  Bourgogne, 
210  U.  S.  95.  52  L.  Ed.  973,  28  S.  Ct.  664. 
See  ante,  COLLISION,  p.  24,3. 

1082-67.  Death  by  wrongful  act. — "It 
was  settled  in  The  Harrisburg,  1]9  U.  S- 
199,  30  L.  Ed.  358,  7  S.  Ct.  140,  that  no 
damages  can  be  recovered  in  admiralty 
for  the  death  of  a  human  being  on  the 
high  seas,  or  on  the  waters  navigable  from 
the  seas,  caused  by  negligence,  in  the  ab- 
sence of  an  act  of  congress,  or  a  statute 
of  a  state,  giving  the  right  of  action  there- 
for. As  said  in  Butler  v.  Boston,  etc.. 
Steamship  Co.,  130  U.  S.  527,  555,  32  L. 
Ed.  1017,  9  S.  Ct.  612,  the  maritime  law 
of  this  country,  at  least,  gives  no  such 
right.  But  in  The  Hamilton,  207  U.  S. 
398,  52  L.  Ed.  264,  28  S.  Ct.  133,  it  was 
also  settled  that  where  the  law  of  the  stale 
to  which  a  vessel  belonged,  in  other 
words,  the  law  of  the  domicile  or  flag, 
gives  a  right  of  action  for  wrongful  death 
if  such  death  occurred  on  the  high  seas  on 
board  of  the  vessel,  the  right  of  action 
given  by  the  law  of  the  domicile  or  flag- 
will  be  enforced  in  an  admiralty  court  of 
the  United  States  as  a  claim  against  the 
fund  arising  in  a  proceeding  to  limit  lia- 
bility." La  Bourgogne.  210  U.  S.  95,  138. 
52  L.  Ed.  973,  28  S.  Ct.  664.  See  ante, 
ADMIRALTY,  p.  10;  post,  DEATH  BY 
WRONGFUL  ACT. 

The  law  of  France  which  authorizes  a 
recovery  for  loss  of  life  against  a  vessel 
in  fault  will  be  enforced  by  the  courts  of 
the  United  States  in  a  proceeding  to  limit 
liability  for  claims  against  a  French  ves- 
sel foimd  to  be  at  fault  for  a  cnliision  in 
a  fog  on  the  high  seas,  although  the 
French  courts,  in  applying  to  the  facts 
found  the  international  rule  as  to  the 
speed  of  vessels  in  a  fog,  might  not  have 
held  such  vessel  to  be  at  fault.  The  duty 
to  enforce  the  cause  of  action  given  by  the 


French  law  does  not  carry  with  it  the 
obligation  to  disregard  the  proof  by  de- 
clining to  give  it  that  effect  to  which  it  is 
entitled  under  the  law  as  administered  in 
the  courts  of  the  United  States.  La 
Bourgogne,  210  U.  S.  95,  52  L.  Ed.  973,  28 
S.    Ct.    664. 

1095-a.  Employment  for  a  specific  num- 
ber of  consecutive  hours. — The  Act  of 
March  4,  1907,  makes  it  unlawful  for  com- 
mon carriers  to  permit  employees  to  be 
on  duty  "for  a  longer  period  than  sixteen 
consecutive  hours,"  or,  after  that  period, 
to  go  on  duty  again  until  they  have  had 
at  least  ten  consecutive  hours  off  duty,  or 
eight  hours  after  sixteen  hours'  work  in 
the  aggregate  with  a  proviso  that  no  tele- 
graph operator  and  the  like  shall  be  per- 
mitted to  be  on  duty  for  a  longer  period 
than  nine  hours  in  any  twenty-four  hour 
period  in  all  towers,  offices,  places,  and 
stations  continuously  operated  night  and 
day  nor  for  a  longer  period  than  thirteen 
hours  where  operated  only  during  the 
daj^time,  with  immaterial  exceptions.  The 
defendant  had  a  station  and  telegraph  of- 
fice at  a  place,  which  was  shut  from  12  to 
3  by  day  and  night,  but  open  the  rest  of 
the  time.  At  this  station  the  same  tele- 
graph operator  was  employed  from  half- 
past  6  o'clock  in  the  morning  until  12, 
and  again  from  3  p.  m.  to  half-past  6,  or 
nine  hours,  in  all,  of  actual  work.  The 
government  contended  that  when  nine 
hours  have  passed  from  the  moment  of 
beginning  work,  the  statute  allows  no 
more  labor  within  twenty-four  hours  from 
the  same  time,  even  though  the  nine 
hours  have  not  all  of  them  been  spent  in 
work;  that  the  operator's  nine  hours  ex- 
pired at  half-past  3  in  the  afternoon.  The 
court  said:  "It  is  impossible  to  extract 
the  requirement  of  fifteen  hours'  con- 
tinuous leisure  from  the  words  of  the 
statute  by  grammatical  construction  alone. 
The  proviso  does  not  say  nine  consecu- 
tive hours,  as  was  said  in  the  earlier  part 
of  the  section,  and  if  it  had  said  so,  or 
even  'for  a  longer  period  than  a  period  of 
nine  consecutive  hours,'  still  the  defend- 
ant's conduct  would  not  have  contravened 
the  literal  meaning  of  the  words.  A  man 
employed  for  six  hours  and  then,  after  an 


254 


Vol.  III. 


CONSIGNEE. 


1095 


CONSENT.— See  note  b. 

CONSENT  JUDGMENTS  AND   DECREES.— See  ante,  Appeai.  and  Er- 
ror, p.  34;  post,  Judgments  and  Decrees. 

CONSIDERATION.— See  note  c. 
■     CONSIDERATION.— See  ante,  Biees,  Notes  and  Checks,  p.  204;  Bonds; 
post,  Deeds. 

CONSIGNEE.— See  post.  Sales. 


interval,  for  three,  in  the  same  twenty- 
four,  is  riot  employed  for  a  longer  period 
than  nine  consecutive  hours.  Indeed,  the 
word  consecutive  was  struck  out  when  the 
bill  was  under  discussion,  on  the  sugges- 
tion that  otherwise  a  man  might  be 
worked  for  a  second  nine  hours  after  an 
interval  of  half  an  hour.  In  order  to 
bring  about  the  effect  contended  for  it 
would  have  been  necessary  to  add,  as  the 
section  does  add  in  the  earlier  part,  a 
provision  for  the  required  number  of  con- 
secutive hours  ofif  duty.  The  presence  of 
such  a  provision  in  the  one  part  and  its 
absence  in  the  other  is  an  argument 
jigainst  reading  it  as  implied."  United 
States  V.  Atchison,  etc.,  R.  Co.,  220  U.  S. 
37,  55  L.  Ed.  361,  31  S.  Ct.  362.  See  post, 
INTERSTATE  AND  FOREIGN  COM- 
AIERCE. 

1095-b.  Consent  to  conveyance  of  land. 
— The  consents  of  the  Puyallup  Indian  al- 
lottes  and  owners  to  the  sale  of  such  por- 
tion of  the  lands  allotted  to  them  under 
the  treaty  with  the  Omahas  as  was  not 
required  for  their  homes,  when  given  and 
proved  conformably  to  the  Act  of  March 
3,  1893,  must  be  deemed  to  survive  their 
deceased,  in  view  of  the  provision  of  the 
act  that  such  consents  should  make  the 
commissioner  appointed  thereunder  trus- 
tee to  sell  lands  and  make  deeds  to  the 
purchasers  for  the  same,  subject  to  the 
approval  of  the  secretary  of  the  interior, 
which  deeds  should  operate  as  a  full  con- 
veyance of  the  lands  upon  the  full  pay- 
ment of  the  purchase  money.  It  is  mani- 
fest that  the  consent  required  created 
inore  than  the  mere  revocable  agency.  It 
was  a  written  agreement  giving  the  com- 
missioner full  power  to  execute   the  pro- 


vision and  policy  of  the  act  of  congress, 
the  power  which  could  be  confidently 
counted  on  as  continuing  against  con- 
tingencies, and  to  terminate  at  the  com- 
plete conveyance  of  the  land.  Jacobs  v. 
Prichard,  223  U.  S.  200,  56  L.  Ed.  405,  32 
S.  Ct.  289.     See  post,  PUBLIC  LANDS. 

1095-c.  Consideration  used  in  sense  of 
inducement. — By  the  treaty  of  February 
19,  April  22,  1867,  15  Stat.  505,  the  Sisseton 
and  Wahpeton  Sioux  Indians  ceded  rights 
of  way  to  the  United  States,  and  the 
United  States,  in  consideration  of  the  ces- 
sion, the  services  of  the  friendly  bands, 
and  the  forfeiture  of  their  annuities,  pur- 
ported to  set  aside  for  them  certain  res- 
ervations. It  was  further  provided  that, 
"in  consideration  of  the  destitution  of 
said  bands  of  Sisseton  and  Wahpeton 
Sioux,  parties  hereto,  resulting  from  the 
confiscation  of  their  annuities  and  im- 
provements, it  is  agreed  that  congress 
will,  in  its  own  discretion,  from  time  to 
time,  make  such  appropriations  as  may  be 
deemed  requisite  to  enable  said  Indians 
to  return  to  an  agricultural  life,"  etc.  The 
words  "in  consideration  of"  do  not  im- 
port a  technical  consideration,  such  as  is 
needed  in  a  private  bargain  not  under  seal, 
but  the  inducement  that  led  congress  to 
make  the  promise.  It  indicates  the  only 
inducement,  and  a  different  one  can  not 
be  substituted  in  its  place,  on  the  ground 
that  assumpsit  would  not  lie  on  the  one 
named.  United  States  v.  Sisseton  and 
Wahpeton  Bands  of  Sioux  Indians.  208  U. 
S.  561,  567,  52  L.  Ed.  621,  28  S.  Ct.  352. 
See  post,  INDIANS.  See.  also,  ante. 
BILLS,  NOTES  AND  CHECKS,  p.  204; 
post,  CONTRACTS;  DEEDS. 


255 


1096-1100  CONSPIRACY.  Vol.  III. 


CONSOLIDATION  OF  ACTIONS. 

CROSS  REFERENCES. 

See  the  title  Coxsolidation  of  Actions,  vol.  3,  p.  1096,  and  references  there 
given. 

Power  to  Consolidate. — See  note  1. 

Effect  of  Consolidation. — Although  several  claims  by  different  parties 
against  the  same  defendant  are  consolidated  in  a  single  suit,  they  are  several, 
and  represent  distinct  causes  of  action.'^^ 

CONSPIRACY. 

I.  Definition  of  Conspiracy,  256. 
II.  Conspiracy  as  a  Crime,  257. 

A.  Elements  of  Offense,  257. 

1.  Combination  of  Minds   in  Unlawful  Purpose,  257. 

2.  Overt  Acts,  257. 

B.  Indictable  Conspiracies,  257. 

2.  Conspiracies  to  Commit  Offenses  against  the  United  States,  257. 

b.  By   Statute,   257. 

c.  Particular  Offenses,  258. 

4.  Conspiracies   to   Restrain   Trade   or   Commerce,   259. 

5.  Conspiracies  to  Injure  One  in  His  Reputation,  Business  or  Pro- 

fession,  259. 

D.  Jurisdiction   and   \^enue,   259. 
'2.  Venue,  259. 

E.  The  Indictment,  260. 

1.  -Necessary  Allegations,  260. 

c.  Purpose  and  Means  of  Accomplishing,  260. 

d.  Overt  Acts,  260. 

e.  Particular  Conspiracies  Considered,  260. 

2.  Requisites  and   Sufficiency,  261. 

a.  In  General,  261. 

F.  Statute  of  Limitations,  261. 
Gy2.  Instructions,  262. 

H.  Punishment,  262. 

IV.  Evidence,  262. 

CROSS   REFERENCES. 

See  the  title  Conspiracy,  vol.  3,  p.  1099,  and  references  there  given. 
In  addition,  see  ante,  Appe.\l  and  Error,  p.  34 ;  post.  Monopolies  and  Cor- 
porate; Trusts. 

I.  Definition  of  Conspiracy. 

Conspiracy  is  a  partnership  in  criminal  purposes. ^^    That  as  such  it  may  have 

1096-1.     A    federal     circuit      court      may  220  U.  S.  94.  55  L.  Ed.  384,  31  S.  Ct.  368. 

properly    consolidate,    under    U.    S.    Rev.  1097-7a.    Title    Guaranty,    etc.,     Co.     7'. 

Stat..  §  921.  U.  S.  Comp.  Stat.  1901.  p.  685.  Crane  Co.,  219  U.   S.  24,  35,  55  L.  Ed.  72. 

several    actions    brought    by     the     United  31  S.  Ct.  140.     See  post.   COSTS. 

States    against    a    carrier    to    recover    the  1100-la.      Definition      of     conspiracy. — 

penalty  prescribed  by  the   act  of  June  29,  United   States  ?■.   Kissel.  218  U.  S.  601,  54 

1906,   for  violations   of  its   requirement   as  L.   Ed.   1168,  31   S.   Ct.   124. 

to   unloading   live    stock     during      transit.  A    conspiracy    in    restraint    of    trade    is 

Baltimore,   etc.,    R.    Co.   z'.   United   States.  different  from  and  more  than  a  contract 

256 


Vol.  III. 


COXSPIRACY. 


1100-1101 


continuation  in  time  is  shown  by  the  rule  that  an  overt  act  of  one  partner  may  be 
the  act  of  all  without  any  new  agreement  specifically  directed  to  that  act.^'' 

II.  Conspiracy  as  a  Crime. 

A.  Elements  of  Offense — 1.    Combixation  of  AIixds  in  Unlawful  Pur- 
pose.— See  note  2. 

2.    Overt  Acts. — See  notes  3,  4. 

B.  Indictable    Conspiracies — 2.     Coxspiracies    to    Commit     Offexses 
AGAixsT  THE  UxiTED  STATES — b.    By  Statute. — See  v-^^e  9.     Acts  made  crim- 


in  restraint  of  trade. — A  conspiracy  is 
constituted  b}'  an  agreement,  it  is  true, 
but  is  the  result  of  the  agreement,  rather 
than  the  agreement  itself,  just  as  a  part- 
nership, although  constituted  by  a  con- 
tract, is  not  the  contract  but  is  a  result  of 
it.  The  contract  is  instantaneous,  the 
partnership  may  endure  as  one.  and  the 
same  partnership  for  years.  United  States 
V.  Kissel.  218  U.  S.  601,  608,  54  L.  Ed. 
1168,  31  S.  Ct.  124.  See  post,  RESTRAINT 
OP  TRADE.     .  _ 

1100-lb.  Continuation  of  conspiracy. — 
United  States  z:  Kissel,  218  U.  S.  GOl.  54 
L.  Ed.  1168.  31  S.  Ct.  124.  See  post, 
"Statute    of    Limitations,"    II,    F. 

1100-2.  Combination  of  minds  in  unlaw- 
ful purpose. — Hyde  v.  United  States,  225 
U.  S.  347,  359,  56  L.  Ed.  1114,  32  S.  Ct. 
793;  United  States  v.  Kissel,  218  U.  S.  601, 
54  L.  Ed.  1168,  31  S.  Ct.  124. 

The  unlawful  agreement  satisfies  the 
•definition  of  the  crime,  but  it  does  not  ex- 
haust it.  United  States  z\  Kissel,  218  U. 
S.   601.  54  L.   Ed.  1168,  31   S.   Ct.  124. 

Under  §  5440,  Rev.  Stat.,  the  conspiracy 
to  commit  a  crime  against  the  United 
States  is  itself  the  ofifense  without  refer- 
<?nce  to  whether  the  crime  which  the  con- 
spirators have  conspired  to  commit  is 
consummated,  or  agreed  upon  by  the  con- 
spirators in  all  its  details.  Williamson  v.  , 
United  States,  207  U.  S.  425,  52  L.  Ed. 
^78,    28    S.    Ct.    163. 

1100-3.  No  overt  act  necessary  at  com- 
mon law. — Hvde  r.  United  State?.  225  U. 
S.  347.  359.  56  L.  Ed.  1114,  32   S.   Ct.  793. 

1100-4.  By  statute  overt  act  is  necessary 
— §  5440,  Rev.  Stat.— Hyde  7'.  United 
States,  225  U.  S.  347,  363,  56  L.  Ed.  1114,  32 
S.  Ct.  793;  United  States  v.  Stevenson.  No. 
2,  215  U.  S.  200.  54  L.  Ed.  157,  30  S.  Ct.  37; 
Williamson  z:  United  States,  207  U.  S.  425, 
52  L.  Ed.  278,  28  S.  Ct.  163;  Hyde  v.  United 
States,  35  App.  D.  C.  451,  writ  of  cer- 
tiorari granted  in  Hyde  t'.  United  States, 
218  U.  S.  681,  54  L.  Ed.  1207,  31  S.  Ct.  228; 
Brown  z:  Elliott,  225  U.  S.  392,  56  L.  Ed. 
1136,  32   S.   Ct.   812. 

As  to  necessity  of  alleging  place  of 
overt  act,  see  post,  "Overt  Acts,"  II,  E, 
1,  d.  As  to  commencement  of  the  period 
of  limitation  from  last  overt  act,  see  post, 
"Statute  of  Limitations,"  II,  F. 

Section  5440  Rev.  Stat.,  prescribes,  as 
necessary  to  the  oflFense,  not  only  the  un- 
lawful conspiracy,  but  that  one  or  more  of 

12  U  S  Enc— 17  2J 


the  parties  must  do  an  "act  to  effect"  its 
object,  and  provides  that  when  such  act 
is  done  "all  the  parties  to  such  conspiracy 
become  liable."  Hyde  v.  United  States, 
225  U.  S.  347,  359,  56  L.  Ed.  1114,  32  S. 
Ct.   793. 

As  said  by  Mr.  Justice  ]McKenna  in 
Hyde  v.  United  States,  225  U.  S.  347,  56 
L.  Ed.  1114,  32  S.  Ct.  793,  it  seems  like  a 
contradiction  to  say  that  a  thing  is  neces- 
sary to  complete  another  thing  and  yet 
that  other  thing  is  complete  without  it. 
It  seems  like  a  paradox  to  say  that  any- 
thing, to  quote  the  solicitor  general,  "can 
he  a  crime  of  which  no  court  can  take 
cognizance."  The  conspiracy,  therefore, 
can  not  alone  constitute  the  ofifense.  It 
needs  the  addition  of  the  overt  act.  Such 
act  is  something  more,  therefore,  than 
evidence  of  a  conspiracy.  It  constitutes 
the  execution  or  part  execution  of  the  con- 
spiracy and  all  incur  guilt  by  it,  or  rather 
complete  their  guilt  by  it,  consummating 
a  crime  by  it  cognizable  then  bj'  the  judi- 
cial tribunals,  such  tribunals  only  then  ac- 
quiring jurisdiction. 

1101-9.  Provisions  of  statute. — William- 
son V.  United  States.  207  U.  S.  425,  52  L. 
Ed.  278,  28  S.  Ct.  163;  United  States  z: 
Keitel.  211  U.  S.  370,  53  L.  Ed.  230,  29  S. 
Ct.  123;  Crawford  v.  United  States,  212 
U.  S.  183,  53  L.  Ed.  465,  29  S.  Ct.  260. 

Section  5440,  Rev.  Stat.,  embraces  two 
classes  of  conspiracies:  the  first  "to  com- 
mit any  ofifense  against  the  United  States;" 
and  the  other,  "to  defraud  the  United 
States  in  any  manner  or  for  any  purpose." 
United  States  z'.  Keitel,  211  U.  S.  370,  53 
L.   Ed.  230,  29  S.  Ct.  123. 

The  statute  is  broad  enough  in  its  terms 
to  include  any  conspiracy  for  the  purpose 
of  impairing,  obstructing,  or  defeating  the 
lawful  functions  of  any  department  of  the 
government.  Hyde  z'.  L'nited  States,  35 
App.  D.  C.  451,  writ  of  certiorari  granted. 
Hyde  z:  United  States,  218  U.  S.  681,  54 
L.    Ed.    1207,   31    S.    Ct.   228. 

Quere  as  to  the  extent  of  the  agency 
between  conspirators  in  violation  of 
§  5440.  Rev.  Stat.  Hyde  v.  United  States, 
225  U.  S.  347.  56  L.  Ed.  1114,  32  S.  Ct. 
793. 

Overt  act  under  §  5440.  — See  ante, 
"Overt    Act?."    IT.    A.    2. 

Construction  of  word  "defraud"  in 
§  5440,  Rev.  Stat. — See  post.  "Particular 
Offenses,"  II,   B,  2,  c. 


1101-1102 


CONSPIRACY. 


Vol.  III. 


inal  after  the  amendment  of  §  5440,  Rev.  Stat.,  can  be  made  a  basis  of  a  charge 
of  conspiracy  to  defraud  the  United  States  under  said  section. '■^^  It  does  not 
make  any  difference  that  congress  has  seen  fit  to  affix  a  greater  punishment  to 
the  conspiracy  to  commit  the  offense  than  is  denounced  against  the  offense  it- 
self,^"^  nor  is  it  essential  that  a  conspiracy  to  defraud  the  United  States  under 
Rev.  Stat.,  §  5440,  shall  contemplate  a  financial  loss  to  the  United  States,  or 
that  one  should  actually  result. ^'^ 

c.  Particular  Offenses. — See  notes   12,   13.     Conspiring"  to  assist  the  importa- 


1101-9a.  Ex  post  facto  laws. — United 
States  v.  Keitel,  211  U.  S.  370,  53  L.  Ed. 
230,  29  S.  Ct.  123. 

1101-9b.  No  valid  objection  to  constru- 
ing Rev.  St.  U.S.,  §5440  (U.S.  Comp.  St. 
190],  p.  3676),  providing  for  the  criminal 
punishment  of  persons  conspiring  to  com- 
mit an  ofifense  against  the  United  States 
as  embracing  assisting  the  importation  of 
alien  contract  laborers,  in  violation  of  Act 
Feb.  20,  1907,  c.  1134,  §  4,  34  Stat.  900  (U. 
S.  Comp.  St.  Supp.  1907,  p.  393),  can  be 
founded  upon  the  fact  that  a  greater  pun- 
ishment may  thereby  be  affixed  to  the 
conspiracy  to  commit  the  offense  than  is 
provided  for  the  offense  itself.  United 
States  V.  Stevenson.  No.  2,  215  U.  S.  200. 
54  L.  Ed.  157.  30  S.  Ct.  37. 

1101-9C.  Necessity  for  financial  loss. — 
Hyde  v.  United  States,  35  App.  D.  C.  451, 
writ  of  certiorari  granted.  Hyde  v. 
United  States,  218  U.  S.  681,  54  L.  Ed. 
1207,   31    S.   Ct.   228. 

1102-12.  Conspiracy  to  defraud  the 
United  States  out  of  land. — A  conspiracy 
to  obtain  title  to  coal  lands  of  the  United 
States,  in  clear  violation  of  the  prohibi- 
tion of  the  coal  land  laws  against  making 
more  than  one  entry,  is  embraced  by  the 
provision  of  Rev.  St.  U.  S..  §  5440  (U.  S. 
Comp.  St.  1901,  p.  3676),  making  criminal 
conspiracies  "to  defraud  the  United  States 
in  any  manner  or  for  any  purpose."  Or- 
der (D.  C.  1907),  157  F.  396,  reversed. 
United  States  v.  Keitel,  211  U.  S.  370,  53 
L.  Ed.  230,  29  S.  Ct.  123;  United  States  r. 
Herr,  211  U.  S.  404,  53  L.  Ed.  251,  29  S. 
Ct.  134.  See  post,  MINES  AND  MIN- 
ERALS. 

But  a  conspiracy  to  induce  entrymen 
who  have  made  application  under  the  tim- 
ber and  stone  act  (Act  June  3,  1878,  c. 
151.  20  Stat.  89),  as  amended  by  Act  Aug. 
4.  1892,  c.  375,  27  Stat.  348  (U.  S.  Comp. 
St.  1901.  p.  1545),  to  agree  to  convey  after 
patent,  is  not  one  to  defraud  the  United 
States  "in  any  manner  or  for  any  pur- 
pose," within  the  meaning  of  Rev.  St.  U. 
S..  §  5440  (U.  S.  Comp.  St.  1901.  p.  3676). 
Since  the  former  statute  not  only  does 
not  expressly  prohibit  an  entr3'man  from 
making  such  an  agreement,  but  impliedly 
sanctions  it.  Judgment  (D.  C.  1907),  157 
F.  264.  affirmed.  United  States  7'.  Biggs. 
211  U.  S.  507,  53  L.  Ed.  305.  29  S.  Ct.  181; 
United  States  z'.  Freeman,  211  U.  S.  525, 
53  L.  Ed.  311.  29  S.  Ct.  185;  United  States 
v.  SuUenberger,  211   U.   S.  522,  53  E.   Ed. 


311,    29    S.    Ct.    186.      Sec    post,    PUBLIC 
LANDS. 

Effect  of  validity  of  titles  obtained  from 
states. — Persons  conspiring  to  acquire 
fraudulently  school  lands  from  the  states 
of  California  and  Oregon,  and  to  corrupt 
or  use  the  officers  of  the  General  Land  Of- 
fice to  make  or  facilitate  their  selection, 
under  the  act  of  June  4,  1897,  m  exchange 
for  other  public  land,  can  not  success- 
fully urge,  to  escape  conviction  under  U. 
S.  Rev.  Stat.,  §  5440,  U.  S.  Comp.  Stat. 
1901,  p.  3676,  of  conspiring  tc  defraud  the 
United  States,  that  the  titles  obtained 
from  the  states  were  valid,  except  as  to 
the  particular  state  which  had  given  the 
title,  and  which  alone  could  assail  it.  Hvde 
z:  United  States,  225  U.  S.  347,  56  L.  Ed. 
1114,  32   S.   Ct.  793. 

The  word  "defraud"  in  §  5440,  Rev.  Stat., 
when  construed  in  connection  with  the  ac- 
companying words  "in  any  manner  or  for 
any  purpose"  includes  obtaining  public 
lands  in  violation  of  the  statutes  as  to 
qualities  to  be  taken  by,  and  qualification 
of  entryman,  notwithstanding  the  United 
States  be  paid  for  the  price  of  the  land. 
United  States  t'.  Keitel,  211  U.  S.  370,  53  L. 
Ed.  230.  29  S.  Ct.  123.  See,  generally,  post, 
STATUTES. 

1102-13.  Conspiracy  to  commit  subor- 
nation of  perjury. — A  conspiracy  by  two 
or  more  persons  to  procure  the  commis- 
sion of  perjury,  which  embraces  an  un- 
successful attempt,  is  punishable  under  the 
criminal  laws  of  the  United  States,  even 
though  it  be  conceded  that  an  attempt  by 
one  person  to  suborn  another  to  commit 
perjury  may  not  be  so  punishable,  since 
under  Rev.  St.  U.  S.,  §  5440  [U.  S.  Comp. 
St.  1901,  p.  3676],  it  is  clearly  criminal  for 
two  or  more  persons  to  conspire  to  com- 
mit any  offense  against  the  United  States, 
provided  only  that  one  or  more  of  the 
parties  to  the  conspiracy  do  an  act  to- 
wards effecting  the  object  of  the  con- 
spiracy. Williamson  v.  United  States,  207 
U.   S.   425,   52   L.    Ed.   278,  28   S.   Ct.   163. 

The  precise  persons  to  be  suborned,  or 
the  time  and  place  of  such  suborning, 
need  not  be  agreed  upon  in  the  minds  of 
the  conspirators,  in  order  to  constitute 
the  crime  of  conspiracy  to  suborn  perjury 
in  proceedings  for  the  purchase  of  public 
land  under  the  timber  and  stone  act.  Wil- 
liamson V.  United  States.  207  U.  S.  425, 
52  L.  Ed.  278,  28  S.  Ct.  163.  See,  generally, 
post,  PERJURY;   PUBLIC  LANDS. 


258 


Yol  III. 


CONSPIRACY. 


1102-1103 


tion  of  alien  contract  laborers  in  violation  of  §  4  of  the  Immigration  Act  of 
February  20,  1907,  c.  1134,  34  Stat.  898,1-*'^  and  an  agreement  by  an  official  of 
the  United  States  under  which  he  secretly  receives  any  portion  of  what  is  paid 
for  supplies  furnished  on  his  requisition,  is  one  to  defraud  the  United  States 
within  §  5440,  Rev.  Stat.i'*'' 

4.  CoxspiRACiEs  TO  Restrain  Trade  or  Commerce. — See  note  16. 

5.  Conspiracies  to  Injure  One  in  His  Reputation,  Business  or  Proees- 
SiON. — Where  private  individuals  take  a  prisoner  from  the  custody  of  the  state 
officers  and  murder  him  to  prevent  his  trial,  they  did  not  deprive  him  of  the 
enjoyment,  in  the  constitutional  sense,  of  any  right  secured  to  him  by  the  con- 
stitution and  laws,  in  violation  of  Const.  U.  S.  Amend.  14,  and  therefore  were 
not  indictable,  under  Rev.  St.,  §§  5508, -5509  [U.  S.  Comp.  St.  1901,  p.  3712], 
for  conspiracy  to  injure  such  person. ^"^ 

D.    Jurisdiction  and  Venue — 2.    Venue. — See  note  22. 


1102-14a.  Assisting  immigration  of  alien 
contract  laborers. — Assisting  the  importa- 
tion of  alien  contract  laborers  is  an  "of- 
fense against  the  United  States,"  within 
the  meaning  of  Rev.  St.  U.  S.,  §  5440  (U. 
S.  Comp.  St.  1901,  p.  3676).  providing  for 
the  criminal  punishment  of  persons  con- 
spiring to  commit  such  offenses,  since 
congress,  in  making  it  a  misdemeanor,  by 
Act  Feb.  20,  1907,  c.  1134,  §  4,  34  Stat.  900 
(U.  S.  Comp.  St.  Supp.  1907,  p.  393),  to 
assist  the  immigration  of  such  persons,  has 
made  such  action  a  crime,  indictable  as 
such,  although,  by  section  5  of  that  act,  it 
has  provided  a  remedy  in  the  nature  of  a 
civil  action  for  the  recovery  of  a  penalty 
for  a  violation  of  the  act.  United  States 
V.  Stevenson,  No.  2,  215  U.  S.  200,  54  L. 
Ed.  157,  30  S.  Ct.  37.  See  ante,  ALIENS, 
p.  18. 

1102-14b.  An  agreement  to  receive  por- 
tion of  what  is  paid  for  supplies.— Craw- 
ford 7'.  United  States.  212  U.  S.  183,  53 
L.   Ed.   465,   29   S.   Ct.  260. 

1102-16.  To  restrain  trade  or  commerce. 
— Anti-trust  Act  of  Julv  2.  1890.  •?G  Stat. 
2C9:  Loewe  z:  Lawlor,  208  U.  S.  274,  52 
L.  Ed.  488.  28  S.  Ct.  301.  See  post.  "Stat- 
ute of  Limitations."  III.  F.  .\nd  see  post, 
INTERST.\TE  AND  FOREIGN  COAI- 
MERCE;  MONOPOLIES  AND  COR- 
POR.\TE  TRUSTS;  RESTRAINT  OF 
TRADE. 

1102-17a.  United  States  v.  Powell,  212 
U.   S.   564.  53  L.  Ed.  653,  29  S.   Ct.  690. 

1103-22.  Venue.— Brown  v.  Elliott,  225 
U.  S.  392,  400.  56  L.  Ed.  1136,  32  S.  Ct. 
812;  Hyde  z\  United  States,  225  U.  S.  347, 
56  L.  Ed.  1114,  32  S.  Ct.  793;  Hyde  v. 
United  States,  35  App.  D.  C.  451,  writ  of 
certiorari  granted.  Hyde  v.  United  Spates. 
218  U.  S.  681.  54  L.  Ed.  1207,  31  S.  Ct. 
228. 

The  doing  of  the  overt  act  prescribed  by 
U.  S.  Rev.  Stat.,  §  5440,  as  necessary  to 
the  offense  of  a  conspiracy  to  defraud  the 
United  States,  defined  by  that  section, 
renders  applicable,  where  the  place  of  the 
overt  act  and  of  the  entry  into  the  unlaw- 
ful  combination   were   in   different   federal 


judicial  districts,  the  provision  of  §  731 
(U.  S.  Comp.  Stat.  1901,  p.  585),  creating 
a  double  jurisdiction  where  an  offense 
against  the  United  States  is  begun  in  one 
district  and  completed  in  another.  Hyde 
v.  United  States.  225  U.  S.  347,  56  L.  Ed. 
ni4,  32  S.  Ct.  793.     See  post,  VENUE. 

At  common  law,  the  venue  in  conspiracy 
could  be  laid  in  any  county  in  which  it 
could  be  proven  that  an  overt  act  was 
done  by  any  one  of  the  conspirators  in 
furtherance  of  their  common  design. 
Hyde  v.  United  States,  225  U.  S.  347,  365, 
56  L.   Ed.   in4.  32   S.   Ct.  793. 

Constructive  presence. — There  is  no 
reason  why  a  constructive  presence  should 
not  be  assigned  to  conspirators  as  well 
as  to  other  criminals.  Hyde  v.  United 
States,  225  U.  S.  347,  363,  56  L.  Ed.  1114, 
32  S.  Ct.  793.  See,  also,  Hyde  v.  United 
States,  35  App.  D.  C.  451.  writ  of  certiorari 
granted.  Hyde  v.  United  States,  218  U.  S. 
681,    54   L.    Ed.    1207,   31    S.    Ct.   228. 

A  conspiracy  is  not  necessarily  the  con- 
ception and  purpose  of  the  moment,  but 
may  be  continuing.  If  so  in  time,  it  may 
be  in  place,  carrying  to  the  whole  area  of 
its  operations  the  guilt  of  its  conception 
and  that  which  follows  .guilt,  trial  and 
punishment.  Hyde  f.  United  States.  225 
U.  S.  347,  363,  56  L.  Ed.  1114,  32  S.  Ct. 
793. 

In  Hyde  f.  United  States,  225  U.  S.  347, 
56  L.  Ed.  1114.  32  S.  Ct.  793,  Mr.  Justice 
McKenna  in  delivering  the  opinion  of  the 
court  said;  "We  realize  the  strength  of 
the  apprehension  that  to  extend  the  ju- 
risdiction of  conspiracy  by  overt  acts  may 
give  to  the  government  a  power  which 
may  be  abused,  and  we  do  not  wish  to 
put  out  of  view  such  possibility.  But 
there  are  counter  considerations.  It  is 
not  an  oppression  in  the  law  to  accept  the 
place  where  an  unlawful  purpose  is  at- 
tempted to  be  executed  as  the  place  of  its 
punishment,  and  rather  conspirators  be 
taken  from  their  homes  than  the  victims 
and  witnesses  of  the  conspiracy  be  taken 
from  theirs.  We  must  not.  in  too  .great 
a   solicitude   for   the   criminal,   give   him   a 


259 


1104-1105 


CONSPIRACY. 


Vol.  III. 


E.  The  Indictment — 1.  Necessary  Aeeegations — c.  Purpose  and  Means  of 
Accomplishing. — An  indictment  for  the  conspiracy  to  defraud  the  United  States 
need  not  allege  in  what  particular  manner  the  con-spirators  intended  to  defraud 
the  United  States.^^"^ 

d.  Overt  Acts. — Place  of  Overt  Act. — As  the  place  of  the  overt  act  may  be 
the  place  of  jurisdiction,  it  follows  that  the  exact  place  where  the  conspiracy 
was  formed  need  not  be  ajleged.^^^ 

e.  Particular  Conspiracies  Considered. — Conspiracy  to  Suborn  Perjury. — 
An  indictment  alleging  a  conspiracy  to  suborn  perjury  need  not,  with  technical 
precision,  state  all  the  elements  essential  to  the  commission  of  the  crimes  of  sub- 
ornation of  perjury  and  of  perjury.s^a 


kind  of  immunity  from  punishment  be- 
cause of  the  difficulty  in  convicting  him, 
indeed,  of  even  detecting  him.  And  this 
may  result,  if  the  rule  contended  for  be 
adopted.  Let  him  meet  with  his  fellows 
in  secret  and  he  will  try  to  do  so;  let  the 
place  be  concealed,  -as  it  can  be,  and  he 
and  they  may  execute  their  crime  in  every 
state  in  the  Union  and  defeat  punishment 
in  all.  And  the  suppositions  are  not  fanci- 
ful, as  illustrated  by  a  case  submitted 
coincidently  with  this.  Brown  v.  Elliott, 
225  U.  S.  392,  56  L.  Ed.  1136,  32  S.  Ct.  812. 
The  possibility  of  such  result  repels  the 
contention  and  demonstrates  that  to  yield 
to  it  would  carry  technical  rules  and 
rigidity  of  reasoning  too  far  for  the  prac- 
tical administration  of  criminal  justice." 

One  may  be  guilty  of  conspiracy  to 
bribe  city  officers,  without  having  been 
personally  present  within  the  state  where 
such  city  is  located.  (C.  C),  Ex  parte 
Hoffstot,  180  F.  240,  order  affirmed  in 
Hofifstot  7'.  Flood,  218  U.  S.  665,  54  L.  Ed. 
1201,    31    S.    Ct.   222. 

Acts  permitted  by  local  law. — A  con- 
spiracy in  this  country  to  do  acts  in  an- 
other jurisdiction  does  not  draw  to  itself 
those  acts  and  make  them  unlawful,  if 
they  are  permitted  by  the  local  law. 
American  Banana  Co.  v.  United  States 
Fruit  Co.,  213  U.  S.  347,  53  L.  Ed.  826,  29 
S.   Ct.  511. 

Effect  of  sixth  amendment  to  the  con- 
stitution.— The  requirement  of  U.  S. 
Const.,  6th  Amend.,  that  a  criminal  prose- 
cution shall  be  had  in  the  state  and  dis- 
trict wherein  the  crime  shall  have  been 
committed,  is  satisfied  by  laying  the  venue 
of  the  trial  of  an  indictment  for  conspiracy 
to  defraud  the  United  States,  contrary  to 
U.  S.  Rev.  Stat.,  §  5440,  U.  S.  Comp.  Stat. 
1901,  p.  3676,  at  the  place  where  an  overt 
act  was  performed,  since  such  section  pre- 
scribes as  necessary  to  the  offense  not 
only  the  unlawful  conspiracy,  but  that  one 
or  more  of  the  parties  must  do  an  "act  to 
effect"  its  object,  and  provides  that  when 
such  act  is  done  "all  the  parties  to  such 
conspiracy"  become  liable.  Hyde  z'.  United 
States.  225  U.  S.  347.  56  L.  Ed.  1114,  32 
S.  Ct.  793;  Brown  v.  Elliott,  225  U.  S.  392, 
56   L.   Ed.   1136,   32    S.    Ct.   812. 


1104-29a.  Indictment  to  defraud  the 
United  States. — ^An  indictment  for  a  con- 
spiracy to  defraud  the  United  States,  in 
violation  of  Rev.  St.  U.  S.,  §  5440  (U.  S. 
Comp.  St.  1901,  p.  3676),  which  charges 
a  corrupt  agreement  by  which  an  officer 
of  the  United  States  is,  in  substance,  to 
have  a  secret  interest  in  a  public  contract 
as  to  the  fulfilling  of  which  by  the  con- 
tractor that  officer  is  to  be  the  judge,  is 
sufficient  without  averring  that  the  in- 
terest was  given  him  or  the  money  paid 
to  him  to  influence  his  official  conduct 
upon  the  very  contract  in  question,  or 
alleging  which  of  the  various  ways  of  de- 
frauding the  government  was  in  the  minds 
of  the  conspirators,  or  that  they  all  were. 
Judgment  (1907),  30  App.  D.  C.  1,  re- 
versed. Crawford  v.  United  States,  212 
U.  S.  183,  53  L.  Ed.  465,  29  S.  Ct.  260.  See 
post,  INDICTMENTS,  I  N  F  O  R  M  A- 
TIONS,  PRESENTMENTS  AND  COM- 
PLAINTS. 

1104-31a.  Place  of  overt  act. — The  ex- 
act place  of  the  formation  of  a  conspiracy 
to  commit  the  offense  against  the  United 
States  denounced  by  U.  S.  Rev.  Stat., 
§  5480,  U.  S.  Comp.  Stat.  1901,  p.  3696, 
making  criminal  the  use  of  the  mails  to 
carry  on  a  scheme  or  artifice  to  defraud, 
need  not  be  stated  in  an  indictment  which 
lays  the  venue  at  the  place  where  an 
overt  act  was  committed.  Brown  v.  El- 
liott. 225  U.  S.  392,  56  L.  Ed.  1136,  32  S. 
Ct.    812. 

1105-35a.  Conspiracy  to  suborn  perjury. 
—Williamson  v.  United  Slates.  207  U.  S. 
425,   52   L.   Ed.  278,   28   S.    Ct.   163. 

Any  doubt  as  to  whether  the  allegations 
of  an  indictment  charging  a  conspiracy  to 
suborn  the  commission  of  perjury  in  pro- 
ceedings to  purchase  public  land  under 
the  timber  and  stone  act  embrace  a  con- 
spiracy to  suborn  perjury  in  respect  to  the 
making  of  final  proofs,  as  well  as  in  mak- 
ing the  original  applications,  must  be 
resolved  in  favor  of  the  accused.  William- 
son V.  United  States,  207  U.  S.  425,  52  L. 
Ed.   278,   28    S.    Ct.    163. 

The  object  of  the  conspiracy  is  suffi- 
ciently charged  in  an  indictment  for  con- 
spiracy to  suborn  perjury,  where  its  al- 
legations plainly  import  that  the  unlawful 


260 


Vol.  III. 


CONSPIRACY. 


1106-1107 


2.    Ri:quisites  and  Suf^Ficiency — a.    In  General—See  note  40. 

P.  ^Statute  of  Limitations. — As  a  criminal  conspiracy  under  Rev.  Stat.  U. 
S.,  §  5440,  may  be  a  continuing  offense,  each  overt  act  in  furtherance  of  it  amounts 
to  a  renewal  of  the  original  agreement,  and  the  statute  of  limitations  must  be  com- 
puted from  the  date  of  the  last  of  them  of  which  there  is  appropriate  allegation 
and  proof,  and  this  although  some  of  the  earlier  acts  may  have  occurred  more 
than  three  years  before  the  indictment  was  found.^s^  Some  affirmative  action 
to  disavow  or  defeat  the  purpose  of  a  continuing  conspiracy  must  be  taken  by 
a  conspirator  in  order  to  prevent  the  overt  acts  of  any  of  his  associates  from 
continuing  him  in  the  conspiracy,  so  far  as  the  statute  of  limitations  is  con- 
cerned.■^•'^''     A  special  plea  of  the  statute  of  limitations  is  not  good  as  against  an 


agreement  contemplates  a  future  solicita- 
tion of  unnamed  individuals  to  enter  pub- 
lic lands  under  the  timber  and  stone  act, 
who  in  so  doing  will  necessarily  knowingly 
state  and  subscribe  under  oath,  before  a 
named  person,  stated  to  be  a  United 
States  commissioner  of  the  district  of 
Oregon,  material  false  statements  as  to 
their  purpose  in  respect  to  entering  the 
land,  known  to  be  such  by  the  conspira- 
tors. Williamson  v.  United  States,  207  U. 
S.  425.  52  L.  Ed.  278.  28  S.  Ct.  163.  See, 
generally,  post.  INDICTMENTS.  IN- 
FORMATIONS. PRESENTMENTS 
AND  COMPLAINTS;   PERJURY. 

1106-40.  Effect  of  insufficient  averments. 
—Hyde  z:  United  States.  225  U.  S.  347, 
362,  56  L.  Ed.  1114,  32  S.  Ct.  793. 

1107-45a,  Commencement  of  period  of 
limitations. — Hyde  v.  United  States,  225  U. 
S.  347,  56  L.  Ed.  1114.  32  S.  Ct.  793;  Brown 
V.  Elliott.  225  U.  S.  392,  401,  56  L-  Ed.  1136, 
32  S.  Ct.  812;'  Hyde  v.  United  States,  35 
App.  D.  C.  451,  writ  of  certiorari  granted 
Hyde  z:  United  States,  218  U.  S.  681,  54  L. 
Ed.  1207,  31  S.  Ct.  228;  United  States  v. 
Kissel,  218  U.  S.  601,  54  L.  Ed.  1168,  31  S. 
Ct.  124.    See  post,  CRIMINAL  LAW. 

In  United  States  v.  Kissel,  218  U.  S.  601, 
54  L.  Ed.  1168,  31  S.  Ct.  124,  holding  that 
conspiracy  might  be  a  continuous  crime. 
The  court  said,  distinguishing  a  crime 
from  its  results:  "But  when  the  plot 
contemplates  bringing  to  pass  a  continu- 
ous result  that  will  not  continue  without 
the  continuous  co-operation  of  the  con- 
spirators to  keep  it  up.  and  there  is  such 
continuous  co-operation,  it  is  a  preserva- 
tion of  natural  thought  and  of  natural  lan- 
guage to  call  such  continuous  co-operation 
a  cinematogrriphic  series  of  distinct  con- 
spirators, rather  than  to  call  it  a  single 
one."  Brown  v.  Elliott,  225  U.  S.  392,  400, 
56  L.  Ed.  1136,  32  S.  Ct.  812. 

A  conspiracy  to  commit  the  offense 
against  the  United  States  denounced  by 
U.  S.  Rev.  Stat.,  §  5480,  U.  S.  Comp.  Stat. 
1901,  p.  3696,  making  criminal  the  use  of 
the  mails  to  carry  on  a  scheme  or  artifice 
to  defraud,  which  the  indictment  alleges 
was  designed  to  be  and  was  in  fact  con- 
tinuous, continues,  so  far  as  the  statute  of 
limitations   is    concerned,    so   long   as    any 


overt  acts  are  done  by  any  of  the  conspira- 
tors in  furtherance  of  the  conspiracy. 
Brown  v.  Elliott,  225  U.  S.  392,  56  L.  Ed. 
1136,  32  S.  Ct.  812. 

A  conspiracy  to  restrain  or  monopolize 
trade,  in  violation  of  the  Sherman  act  (Act 
July  2,  1890,  c.  647,  26  Stat.  209  [U.  S. 
Comp.  St.  1901,  p.  3200]).  by  obtaining 
control  of  a  competitor  through  a  pledge 
of  the  majority  of  its  stock  to  secure  a  loan 
to  a  stockholder,  and  then  voting  to  sus- 
pend business  until  further  order  of  the 
board  of  directors,  continues,  so  far  as  the 
statute  of  limitations  is  concerned,  so 
long  as  any  further  action  is  taken  in  fur- 
therance of  the  conspiracy.  United  States 
r.  Kissel,  218  U.  S.  601.  54  L.  Ed.  1168,  31 
S.  Ct.  124.  reversing  judgment  (C.  C.  1909) 
173  F.  823.  See  post,  MONOPOLIES 
AND  CORPORATE  TRUSTS;  RE- 
STRAINT OF  TRADE. 

A  conspiracy  to  acquire  fraudulently 
school  lands  from  the  states  of  California 
ajid  Oregon,  and  to  corrupt  or  use  the  of- 
ficers of  the  general  land  office  to  make  or 
facilitate  their  selection,  under  the  act  of 
June  4,  1897  (30  Stat,  at  L.  11.  chap.  2),  in 
exchange  for  other  public  lands,  continues, 
so  far  as  the  statute  of  limitations  is  con- 
cerned, so  long  as  any  overt  acts  are  done 
by  any  of  the  conspirators  in  furtherance 
of  the  conspiracy.  Hyde  v.  United  States, 
225  U.  S.  347.  56  L.  Ed.  1114,  32  S.  Ct.  793. 
See  post,  PUBLIC  LANDS. 

1107-45b.  Necessity  of  affirmative  dis- 
avowal.— Hyde  f.  United  States,  225  U.  S. 
347,  56  L.  Ed.  1114,  32  S.  Ct.  793. 

Mere  failure  further  actively  to  partici- 
pate is  not  sufficient. — An  indictment  for 
criminal  conspiracy  is  not  barred  by  the 
statute  of  limitations  as  to  one  of  the  ac- 
cused, although  the  evidence  shows  that 
he  did  not  participate  in  any  act  in  fur- 
therance of  the  conspiracy  within  the  stat- 
utory period,  where  the  conspiracy  con- 
templated acts  to  be  done  after  it  was 
formed,  in  furtherance  of  it,  from  time  to 
time,  through  a  series  of  years,  until  its 
object  should  be  accomplished,  and  such 
acts  were  committed  by  the  other  conspir- 
ators within  the  statutory  period,  and  were 
not  expressly  repudiated  by  him.  Hyde  v. 
United   States,  35   .\pp.   D.   C.  451.  writ  of 


>G1 


1107-1110  CONSPIRACY.  Vol.  III. 

indictment  charging  a  conspiracy  to  restrain  or  monopolize  trade,  in  violation 
of  the  Sherman  act  (Act  July  2,  1890,  c.  647,  26  Stat.  209  [U.  S.  Comp.  St. 
1901,  p.  3200]),  by  improperly  excluding  a  competitor  from  business,  although 
the  conspiracy  is  alleged  to  have  been  formed  on  a  specified  date,  which  was 
more  than  three  years  before  the  finding  of  the  indictment,  where  such  indict- 
ment, consistently  with  the  other  facts,  alleges  that  the  conspiracy  continued  to 
the  date  of  its  presentment.^^'^ 

G|.  Instructions. — Where  four  persons,  B.,  H.,  D.,  and  S.,  are  indicted  for 
a  criminal  conspiracy,  it  is  sufficient  to  show  that  any  two  of  them  entered  into 
the  conspiracy;  and  a  direction  to  the  jury,  asked  by  the  defendants,  that, 
unless  the  jury  shall  find  H.  and  B.  both  guilty  as  charged,  their  verdict  shall 
be  in  favor  of  all  the  defendants,  is  properly  refused.^^*^ 

H.    Punishment. — See  note  48. 

IV.  Evidence. 

Relevancy. — Evidence  that  certain  letters  in  the  possession  of  the  govern- 
ment on  the  trial  of  a  criminal  conspiracy  to  defraud  the  United  States,  which 
were  addressed  to  one  of  the  defendants  under  an  alias,  could  only  have  been 
obtained  by  robbing  the  mails,  is  not  relevant.*^ i'^ 

Intention. — The  refusal  to  permit  one  accused  of  conspiring  to  defraud 
the  United  States  to  testify  as  to  his  intent  in  abstracting  correspondence  from 
the  files  of  a  corporation,  which  the  government  claims  was  to  suppress  evi- 
dence against  himself,  is  reversible  error  where  the  conviction  rests  largely 
upon  the  testimony  of  a  felon  and  self-confessed  accomplice,  although  there 
may  have  been  other  testimony  from  which  inferences  as  to  such  intent  might 
have  been  drawn.^'^" 

Circumstances  with  Which  Party  Connected. — Where  the  guilt  of  con- 
spirators depends  upon  the  intent,  purpose,  design  or  knowledge  with  which 
an  act  is  done,  circumstances  in  which  they  have  taken  a  principal  part  may  be 
examined  into  for  the  purpose  of  establishing  such  guilty  intent,  purpose,  de- 
sign or  knowledge. ^1*^ 

certiorari  granted.  Hyde  v.  United  States,  347,    357,    56  L.    Ed.    1114,    32    S.    Ct.    793; 

218  U.  S.  681,  54  L.  Ed.  1207,  31  S.  Ct.  228;  Hyde  v.  United  States,  35  App.  D.  C.  451, 

S.  C,  225  U.  S.  347,  56  L.  Ed.  1114,  32  S.  writ  of  certiorari  granted.    Hyde  v.  United 

Ct.  793.  States,  218  U.  S.  681,  54  L.  Ed.  1207,  31  S. 

Silent  acquiescence  in  later  acts. — The  Ct.  228. 

disclosure   by  a  government   employee   of  1110-61a.    Relevancy. — Hyde    v.    United 

the   existence   of  a   continuing   conspiracy.  States,  225  U.  S.  347,  56  L.  Ed.  1114,  32  S. 

to   which  he    was  a    party,  to    defraud  the  Ct.  793.     See  post,  EVIDENCE. 

United  States  out  of  its  public  lands,  con-  1110-61b.  Intention. — Crawford  v.  United 

trary    to  U.    S.    Rev.    Stat.,  §    5440,    U.    S-  States,  212  U.  S.  183,  53  L.  Ed.  465,  29  S. 

Comp.  Stat.  1901,  p.  3676,  is  not  sufificient  Ct.  260. 

to    prevent  the    subsequent    overt  acts    of  1110-61c.      Circumstances     with     which 

any  of  his  associates  from  continuing  him  party    connected. — Williamson    v.    United 

in  the  conspiracy  so  far  as  the  statute  of  States,  207  U.  S.  425,  52  L.   Ed.  278,  28  S. 

limitations  is  concerned,  if,  after  the  first  Ct.  163. 

disclosure,    he    silently    acquiesced    in    the  Understanding  of  agreement. — Evidence 

later  acts.     Hyde  v.  United  States,  225  U.  as    to    how    the    entrymen    of    timber    and 

S.  347,  56  L.  Ed.  1114,  32  S.  Ct.  793.  Stone  lands  understood  their  arrangement 

1107-45C.     Pleading     limitation. — United  with  one  of  the  defendants  charged  with 

States  V.   Kissel,  218  U.   S.   601,  607,  54  L.  a    conspiracy    to    suborn    perjury,    and    of 

Ed.  1168,  31  S.  Ct.  124.  their  purpose  in  applying  for  the  land,  is 

1107-45d.  Instructions. — Hyde  v.  United  admissible  where  no  formal  contracts 
States,  35  App.  D.  C.  451,  writ  of  certiorari  were  executed  between  the  alleged  con- 
granted.  Hyde  v.  United  States,  218  U.  S.  spirators  and  the  proposed  entrymen,  the 
681,  54  L.  Ed.  1207,  31  S.  Ct.  228.  See  post,  alleged  understandings  being  of  an  ambig- 
INSTRUCTIONS.  uous  nature,  and   proof  of   the   conspiracy 

1107-48.  Punishment  under  §  5440,  Rev.  depending  upon  a  variety  of  circumstances 

Stat. — Hyde    v.  United    States.    225  U.    S.  tending   to    show    motive  or    intent.     Wil- 

263 


Vol.  III. 


CONSTITUTION. 


1110 


Overt  Acts. — In  a  criminal  prosecution  for  conspiracy  to  defraud  the  United 
States  out  of  public  lands,  evidence  tending  to  show  acts  of  forgery  of  applica- 
tions for  the  land  is  admissible,  although  conviction  is  not  asked  for  the  forgery, 
when  such  acts  are  so  intimately  connected  with  the  other  acts  of  the  accused 
as  to  tend  to  show  a  common  scheme  to  defraud. ^^"^ 


CONSTITUTION.— See  post.  Coxstitutional  Law 


,Hamson  v.  United  States,  207  U.  S.  425,  52 
L.  Ed.  278,  28  S.  Ct.  163. 

Character  of  timber  land  in  respect  to 
suitability  for  grazing  purposes. — Testi- 
mony as  to  the  character,  in  respect  to 
suitability  for  grazing  purposes,  of  land 
sought  to  be  acquired  under  the  timber 
and  stone  act,  is  adm.issible  on  a  trial  for 
conspiracy  to  suborn  perjury  in  the  pro- 
ceedings, where  it  is  insisted  that  the  rfio- 
tive  which  impelled  the  formation  of  the 
alleged  conspiracy  was  the  desire  to  ac- 
quire a  large  tract  of  land  for  sheep-graz- 
ing purposes,  which  acquisition  had  be- 
come necessary  by  reason  of  the  fact  that 
a  rival  had  obtained  a  leasehold  interest 
in  a  considerable  portion  of  the  land  which 
the  alleged  conspirators  had  theretofore 
used  in  their  sheep-raising  business.     Wil- 


liamson V.  United  States,  207  U.  S.  425,  52 
L.  Ed.  278,  28  S.  Ct.  1G3. 

Attempt  to  acquire  and  the  acquisition 
of  state  school  lands. — Evidence  of  an  at- 
tempt to  acquire,  and  of  the  acquisition, 
by  like  unlawful  methods,  of  state  school 
lands,  is  admissible  of  a  trial  for  conspir- 
ing to  suborn  perjury  in  proceedings  for 
the  purchase  of  public  land  under  the  tim- 
ber and  stone  act,  as  tending  to  establish 
guilty  intent,  purpose,  design,  or  knowledge 
on  the  part  of  the  alleged  conspirators. 
Williamson  v.  United  States,  207  U.  S.  425, 
52   L.   Ed.   278,  28   S.   Ct.   163. 

1110-61d.  Overt  acts. — Hyde  v.  United 
States,  35  App.  D.  C.  451,  writ  of  certio- 
rari granted.  Hyde  v.  United  States,  218 
U.  S.  681,  54  L.  Ed.  1207,  31  S.  Ct.  228. 


263 


CONSTITUTIONAL  LAW.  Vol.  IV. 


CONSTITUTIONAL  LAW. 

I.  Definition  and  Nature  of  a  Constitution,  273. 
ni.  Construction  of  Constitutions,  273. 

A.  By  Whom  Construed.  273. 

2.  State  Constitutions,  273. 

B.  General  ^Rules  and  Principles  of  Construction,  274. 

3.  Construction  in  the  Light  of  Contemporaneous  History  and  Ex- 

isting Conditions,  274. 
10.  Conflicting  and   Ineffective   Provisions,   274. 
17.  Construction    Strict   or  Liberal,   When,  274. 

IV.  Operation  and  Effect,  274. 

B.  Supremacy  as  the  Law,  274. 

2.  The  Federal  Constitution,  Laws  and  Treaties,  274. 
a.  Generally,  274. 

c.  Supreme   over   State   Laws,   Officers   and   Agents  as   \\'ell   as 

Federal.  275. 

(\)   Generally,  275. 

(2)  Supremacy  of  Federal  Constitution,  Laws  and  Treat- 
ies in  Case  of  Conflict  with  Reserved  Powers  of  the 
States,  275. 

d.  Limitations  upon  the  Supremacy  of  the  Federal  Constitution, 

Treaties  and  Laws,  275. 

(2)  Limitations  upon  Treaties  as  the  Supreme  Law,  275. 
(b)   Supremacy  over  Acts  of  Congress,  275. 

e.  Duty  of   Courts  to  Uphold  and   ^Maintain  the   Supremacy  of 

^:he   Federal    Constitution,   Treaties   and   Laws.   275. 

F.  Self-Executing  Provisions,  275. 

G.  W^ho  Mav  Raise  Constitutional  Questions.  275. 

1.  Generally.  275. 

V.  System  or  Theory  of  Constitutional  Government  in  General,  278. 

A.  State  or  Government  Defined.  278. 

B.  Powers   Possessed  by  Government,  279. 

VI.  Organization  of  Government  in  the  United  States,  279. 
D.  Government   under  the   Constitution,   279, 

1.  Dual  Nature  of  Government,  279. 

2.  The  United  States  as  a  Nation,  279. 

a.  Generally,  279. 

c.  Incidents  of  Sovereignty,  280. 

(3)  Power  to  Accjuire,  Govern  and  Dispose  of  Territory,  280. 

(b)  Status  of   Accjuired  Territory  as  Foreign  or  Do- 

mestic, 280. 
(aa)   Generally,    280. 

(c)  Government  of  Territory,  280. 

(bb)   Usage  as  to  Conquered  or  Ceded  Territory, 
280. 
(aaa)   As  to  Private,   Personal,   and   Property 
Rights ;      Continuation     of     Existing 
Laws,  280. 
(cc)   Power  of  Congress  to  Govern  Territorv,  282. 
(bbb)   Nature    and    Extent,    282. 

264 


^'ol.  IV.  COXSTITUTIOXAL  LAW. 

(aaaa)   Generally,  282. 
(cccc)   Form    and    Character   of    Govern- 
ment \\'hich  Congress  May  Es- 
tablish, 282. 
(aaaaa)   Generally,   282 
(dddd)   Powers    of    Territorial    Govern- 
ments, 282. 
(eeee)   Control    of    Territorial    Govern- 
ment by  Congress,  283. 
(d)   Effect  of   Constitution  upon  Ordinances  of  the 
Old  Confederation,  283. 
3.  Generally  of  the  Powers  of  the  State  and  Federal  Governments,  283. 

a.  Powers  of  the  Federal  Government,  283. 

(2)  Limited  in  Number  and  Scope,  283. 

(3)  The  Federal  Constitution  a  Grant  of  Powers.  284. 

(5)   Incidental  and  Implied  Powers  of  the  Federal  Govern- 
ment, 284. 

(a)  Generally,  284. 

b.  Powers  of  the  States,  284. 

(1)  Generally,   284. 

(2)  \\'hence   Derived,   284. 

(3)  Applicability  of  Constitutional  Limitations  to  the  Pow- 

ers of  the  States,  284. 

(b)  Limitations   Contained   in   the   First    Ten   Amend- 

ments, 284. 

(c)  Limitations  Contained  in  the  War  Amendments,  285. 

c.  Division  of  Powers  between  the  Federal  and  State  Govern- 

ments, 285. 

(3)  Exclusive   Powers   of   Federal   Government,   285. 

(b)  Jurisdiction  in  the  District  of  Columbia  and  Places 

under  Exclusive   Federal   Control,  285. 

(c)  Exclusive  Control  and  Disposition  of  Property,  285. 

(4)  Exclusive  Powers  of  the  States,  286. 

(b)  Local     Municipal     Jurisdiction,     Sovereignty     and 

Eminent  Domain,  286. 

(c)  Persons  and  Property  within   State  Limits,  287. 
(bb)   To    Define   Property,   Prescribe  the   Tenures 

Therein,   and   Regulate   Its   Descent,    Dis- 
tribution  and   Transfer,   287. 
^  (e)    State  Courts;  Their  Constitution,  Jurisdiction  and 

Procedure,  288. 

(f)  To  Define  and  Punish  Crime,  289. 

(g)  Actions   for  Injuries  to   Person  or  Property,  289. 

(5)  Concurrent  Powers  of  State  and  Federal  Governments, 

290. 
(b)  As  to  Subject  flatter,  290. 
(aa)   General   Principles,   290. 
(bb)   Illustrations,  290. 

(bbb)   The   Taxing   Power,  290. 
(ccc)   Foreign  and  Interstate  Commerce.  29L 
iggg)   Enforcement  of  Federal  Law,  291. 

(6)  Each   Government   Supreme  within    the    Scope   of   Its 

Authority,  292. 

(a)  Generally,   292. 

(b)  Neither    Government   to    Intrude   upon    the   Juris- 

265 


CONSTITUTIONAL  LAW.  Vol.  IV. 

diction.      Interfere     with     the     Operation,     nor 
Burden  the  Instrumentalities  of  the  Other,  292. 
(aa)   Generally,   292. 

(bb)   Encroachment     through     Implied     or     Con- 
structive   Powers,    or    through    Strained    or 
Unusual   Construction,  292. 
(cc)    State    Encroachment     upon     Federal    Power 
■and  Prerogatives,  292. 
(bbb)    State  Interference  with  Proceedings  in 

Federal  Courts,  292. 
(fff)    State    Encroachment   through    Exercise 
^  of  Taxing  Power,  293. 

(aaaa)   Generally;  the  Power  to  Tax  the 

Power  to  Destroy,  293. 
(dddd)   Taxation  of   Property  Owned  by 
Federal    Government,   293. 
(jjjj)   Telegraph     Companies     Employed 
as     Federal    Agencies ;    Messages 
Sent  by  the   United   States,   293. 
(mmmm)   Limitation   of   Doctrine,   293. 

(aaaaa)  Validity  of   Tax   Dependent 
upon  Its  Effect,  293. 
(ggg)   State     Obstruction     of     Rights     under 
Federal    License,    293. 
•  (iii)   State  Encroachment  through  the  Exer- 

cise of  the  Police  Power,  294. 
(dd)   Federal  Encroachment  upon  the  States,  294. 
(bbb)   Federal    Government   Not    to    Control 
the   Power    nor    Review  the  Discre- 
tion of  State  Legislatures,  294. 
(ccc)   Power  of  Federal  Government  to  Con- 
trol   or    Revise    the    Proceedings    of 
State  Courts.  294. 
(ddd)   Federal  Encroachment  upon  the  States 
through  the  Exercise  of  the  Taxing 
Power,  295. 
(aaaa)   Generally,  295. 
(g&g)   Power   of   Federal   Courts   to   Restrain 
State   Officers    Acting   under    Uncon- 
stitutional Laws,  296. 
(hh)   Supremacy     in     Case     of     Conflict     between 
State  and   Federal   Powers,  296. 
d.  Separation  of  Departments  and  Distribution  of  Powers,  297. 
(1)   Power  of  Body  Politic  with  Respect  to  Distribution  of 

Powers,  297. 
(3)   The   Departments    Separate;    None   to   Encroach   upon 
or  Exercise  the  Powers  of  Another,  297. 

(a)  Generally,   297. 

(b)  Legislative  Exercise  of  Judicial  Powers,  297. 
(aa)   Generally,  297. 

(bb)   What  Constitutes,  297. 

(aaa)   Legislation  Affecting  Pending  Suits  or 
Judgments  Rendered,  297. 
(eeee)    Statute  Amending,  Overruling  or 
Setting     Aside     Judgment     or 
Decree,  297. 

266 


Vol.  IV.  CONSTITUTIONAL  LAW. 

(bbb)   Legislative  Judgments  and  Decrees,  298. 

(aaaa)   Generally,  298. 
(ccc)   Legislative  Construction  of  Statutes,  298. 

(c)  Exercise  of   Legislative  or   Political   Functions  by 

the  Judiciary.  298. 

(aa)   Generally  as  to  Judicial  Legislation,  298. 

(cc)  Generally  as  to  International  Relations;  De- 
termination of  Rightful  Sovereign  or 
Government,  298. 

(kk)   The   Power   of   Taxation   Not   Judicial,   299. 

(qci)  Regulation  of  Public  Service  Corporation, 
Including  Regulation  of  Rates,  299. 

(rr)  Exercise  of  Administrative  Functions  in 
Carrying   Decrees    into   Effect,   300. 

(d)  Power    of     Congress    to    Impose    Legislative    or 

Executive  Duties  upon  the  Judiciary,  300. 
(aa)   Generally,  300. 

(e)  Power    to    Impose  Judicial  Functions   upon  Non- 

judicial  Tribunals,   300. 
(4)   The  Departments  Independent  and  Co-Ordinate;  None 
to  Coerce  or  Control  Another,  300. 

(b)  Independence  of  the  Legislative  Branch,  301. 
(aa)    Power  of  Judiciary  to  Declare  Statutes  Un- 
constitutional,  301. 

(bb)   Judicial  Control  of  Legislative  Discretion,  304. 
(aaa)   Generally,  304. 

(bbb)   Legislative  Discretion   as    to    Occasion 
or  Necessity,   Choice  of   Means,  etc., 
305. 
(cc)   Motives  of  Legislature  Not   Subject    to    Ju- 
dicial  Enquiry,   305. 
(ff)    Where     Statute     Otherwise    Unobjectionable 
Is  Unfaithfully  Administered,  306. 

(c)  Independence  of  the  Executive,  306. 

(bb)   Judicial   Control   of  the   Executive,   306. 

(aaa)   The    Federal    Executive   and   His    Sub- 
ordinates, 306. 
(bbb)    State   Executive   Officers.   307. 

e.  Delegation  of  Constitutional  Powers,  308. 

(1)  Devolution   of   Power  by   One   Department   upon   An- 

other, 308. 
(c)   Devolution  of  Judicial   Functions  upon  the  Legis- 
lative and  Executive  Departments,  308. 

(2)  Delegation  of  Powers  bv  the  Legislative  Departments, 

308. 

(a)  By  Congress,  308. 
(aa)   Generally,   308. 

(ee)  Exceptions  and  Limitations;  Statutes  De- 
pendent upon  the  Discretion  of  the  Exec- 
utive, etc.,  308. 

(b)  Delegation  of  Power  by  State  Legislative   Bodies, 

309. 
(bb)   To      Boards,     Commissions      and       Similar 
Agencies.  309. 

f.  The  Legislative  Departments,  30'). 


CONSTITUTIONAL  LAW.  Vol.  IV. 

(1)  Legislative    Department    of    the    Federal    Government, 

309. 
(h)   Legislative  Powers  of  Congress,  309. 

(bb)   Constitutional    Limitations    upon    Legislative 
Powers,  309. 
(aaa)   Generally,   309. 
(dd)   Particular  Powers  of  Congress,  309. 

(iii)   To  Define  and  Punish  Crime,  309. 
(qqq)   Power  to  Borrow  Money  and  Provide 
a  Currency,  309. 
(cccc)   Of  the  Power  to  Provide  a  Cur- 
rency,  309. 
(ddddd)    Power  to  Protect  Currency 
and     Secure    the     Benefit 
Thereof,  309. 
(eeeee)   Power     to      Coin      Money, 
Emit  Bills  of   Credit,   and 
Prescribe  a  Legal  Tender, 
an   Exclusive   Power,  310. 

(2)  State  Legislative  Departments,  310. 

(a)  Nature   and    Scope   of   Powers,   310. 
(aa)   Generally,  310. 

(b)  Constitutional   Limitations   upon   Legislative   Pow- 

ers, 310. 
(ff)   Powers  Restricted  to  State  Limits,  310; 
{gg)   Power  to   Barter   Sovereign  Rights  or  Bind 
Succeeding  Legislatures,  31 L 

4.  Equality  of  the  States,  311. 

5.  The  Federal  Guaranty  of  Republican  Government  to  the  States 

and  Protection  against  Domestic  Violence,  311. 

a.  Sense  in  Which  Term  "State"  L^sed  in  This  Connection,  311. 

b.  Republican  Form  of  Government  Defined,  311. 

d.  Right  and  Duty  of  Federal  Government  to  Intervene  for  Pur- 
pose of  Suppressing  Violence  and  Maintaining  Republican 
Form  of  Government,  311. 
(2)   Political  Department  Charged  with  Duty  of  Enforcing 
Guaranty,  311. 

6.  New  States  and  Admission  into  the  L'inion,  311. 

b.  Equality  of  States  upon  Admission  into  the  Union,  311. 

(1)  Generally,  311. 

(2)  Power   of    Congress   to    Impose    Conditions    Incompat- 

ible with  the  Equality  of  the  State  as  a  Member  of 
the  Union,  311. 

(3)  Efifect  of  Admission  upon  Laws  and   Ordinances  Re- 

specting the  Territories,  313. 

7.  The  Union  Indissoluble;    the  States  Indestructible,  313. 

a.  The  Union  Indissoluble,  313. 

(1)  Generally,  313. 

b.  The  States  Indestructible,  314. 

9.  Relations  of  the  States  to  One  Another,  314. 

a.  In  What  Respects  States  Foreign  to  One  Another.  314. 

(2)  No  State  to  Exercise  Its  Legislative  or  Judicial  Pow- 

ers within  the  Limits  of  Another,  314. 

VII.  Equal  Protection  of  the  Laws;    Class  Legislation,  315. 

A^.  Equal  Protection  as  Guaranteed  by  the  Due  Process  Clause  of  the 

268 


Vol.  IV  CONSTITUTIOXAL  LAW. 

Fifth  Amendment,  315. 
B.  Equal  Protection  as  Guaranteed  by  the  Fourteenth  Amendment,  316. 

1.  Persons  Protected,  316. 

a.  Citizens  and  Aliens,  316. 

b.  Corporations,  316. 

c.  Protects  Only  Those  Persons  and  Corporations  within  the  Ju- 

risdiction of  the  State,  317. 

2.  Nature  and  Object  of  the  Guaranty,  317. 

c.  Refers  to   Infringement  by  the   States ;    Not  by  Individuals, 
317. 

f.  As  a  Limitation  upon  the  Police  Power,  318. 

g.  Has  No  Concern  with  the  Impolicy  or  Injustice  of  Legisla- 

tion, 318. 
h.  Equality  Rule   Does  Not  Require   Statute  to  Operate  Indis- 
criminately;   Admits  of  Classification,  319. 

(1)  Generally,  319. 

(5)  Nor  in  All  Portions  of  the  Same  State,  319. 

(6)  Nor  in  All  Portions  of  the  Same  City,  319. 

(7)  But   Requires   Uniformity  as   to   All   in   Like   Circum- 

stances within  the  Sphere  of  Its  Operation,  320. 

(8)  Classification     Must    Be     Reasonable ;     Arbitrary    and 

Hostile  Classification  Forbidden,  320. 

(9)  Rigid  Equality  Not  Required;    Legislature  Permitted  a 

Wide  Discretion,  321. 
i.  Equality  Rule  Forbids  That  Individual  Shall  Be  Subjected  to 
xA.rbitrary  Exercise  of  Power,  324. 
(4)   Arbitrary  and   Oppressive  Administration  of   Statutes, 
324. 

3.  Regulation  of  Business,  Trade,  Occupation  or  Profession,  324. 

a.  Generally,  324. 

b.  Right  to  Pursue  Lawful  Occupation,  Acquire  and  Dispose  of 

Property,  without  Discrimination,  324. 
b   1/2.  Distinctions  Based  upon  Sex,  325. 
b  1/4.  Fraudulent  and  Voluntary  Conveyances,  326. 
b  1/8.  Distinctions  Based  upon  the  Degree  of  Evil,  326. 
d  1/2.  Securing   Payment  of   Wages   Promptly  and   in   Money, 

327. 
f.  Eight  Hour  Laws,  327. 
h.  Regulation  of  Rates,  327. 

i.  Abolishing  the  Doctrine  of  Fellow  S.ervants,  Z27. 
i   1/2.  Abolishing    the    Doctrine    of  Comparative    and    Contrib- 
utory Negligence,  328. 
j.  Particular  Business,  Occupation  or  Profession,  328. 

(2)  Laundries,  328. 

(4)  Imitation  and  Adulterated  Food  Stufifs,  328. 
(4  1/2)   Other  Imitations  and  Adulterations,  328. 

(5)  Practice  of  Medicine,  329. 

(6)  Manufacture  and  Sale  of  Intoxicating  Liquors,  329. 

(7)  Insurance,  329. 

(9)   Dealing  in  Futures,  329. 
(14)  Railroads,  329. 
(14  1/2)   Street  Railroads,  329. 

(16)  Banks  and  Banking,  329. 

(17)  Sale  of  Patented  Articles,  329. 

(18)  Mines  and  Mining;  Mineral  Waters,  Oil,  Gas.  etc..  329. 

269 


CONSTITUTIONAL  LAW.  Vol.  IV. 

(19)  Advertising  on  Streets,  in  Public  Conveyances,  etc.,  329. 

(20)  Drumming  and  Soliciting  on  Trains,  about  Railway  Sta- 

tions, etc.,  329. 

(21)  Telegraphs  and  Telephones,  329. 

4.  As  Requiring  Equal  and  Impartial  Justice,  330. 

a.  Generally  in  Civil  Proceedings,  330. 
(1)   Generally,  330. 

(4)  Change  of  Venue;    Transfer  of  Cause,  etc.,  330. 
(4  1/2)   Right  of  Action  or  Defense,  331. 

(5)  Statutes  Respecting  the  Rules  of  Evidence,  331. 

(7)  Laws  Respecting  Damages  and  Penalties,  2)Z2. 

(8)  Statutes    Awarding   Attorney's     Fees    against     Certain 

Classes  of  Defendants,  332. 
d.  In  Criminal  Proceedings,  333. 

(1)  Generally,  333. 

(2)  Constitution  of  Grand  Jury,  ?>?)?). 

(5)  Rules  of  Evidence;   Absent  Witnesses,  333. 

(6)  Mode  of  Trial,  334. 

•    (8)  Unequal  Punishment,  334. 
f.  Equal  Protection   as   Regards  the  Right  of  Review  by  New 
Trial,  Appeal,  Writ  of  Error,  etc.,  335. 

5.  As  Requiring  Equal  and  Uniform  Taxation,  335. 

a.  Prescribes  No  Iron  Rule  of  Equal  Taxation,  335. 

c.  State  May  Adjust  System  in  All  Reasonable  and  Proper  Ways, 

335. 

d.  Permits  Classification  and  Diversity  in  Taxation,  336. 

e.  Does  Not  Forbid  Exemptions,  339. 

f.  Limitations   upon   Powers  of  Adjustment   and  Classification, 

339. 

(1)  Generally,  339. 

(2)  Classification  Not  to  Be  Arbitrary;   Hostile  Discrimina- 

tions Forbidden,  339. 

(3)  State  Permitted  a  Wide  Discretion,  340. 

(4)  Statute  Not  Invalid  Because  of  Mere  Inequality  of  Re- 

sults, 340. 
f  1/2.  Failure  to  Enforce  Law  as  to  Other  Taxpayers,  340. 

g.  Special  Assessments,  341. 

(1)  Generally  as  to  the  Power  of  the  Legislature  to  Appor- 

tion Public  Burdens,  341. 

(2)  Requiring  Public  Service  Companies  to  Bear  Expense 

Incident  to  Abolition  of  Crossings,  Removal  of  Tracks, 
Pipes,  etc.,  341. 
G.  Special,  Private  and  Local  Acts;    Class  Legislation,  341. 

2,  Special  and  Exclusive  Franchises,  Powers  and  Privileges,  341. 
d.  Prohibition  Contained  in  Organic  Act  of  Territory,  341. 

VIII.  Vested  Rights  and  Retrospective  Legislation,  341. 

A.  What  Rights  Are  Vested,  341. 

4.  Title  to  Public  Office  and  Emoluments  Thereof,  341. 

5.  Vested  Rights  under  Treaties,  342. 

6.  Vested  Rights  in  Rule  or  Policy  of  Law,  343. 

11.  Rights  under  Corporate  Charters,  343. 

a.  Generally ;    Charter  a  Contract,  343. 

b.  Charter  Rights   Subject  to  Police  Powers,  343. 

12.  Same — Franchises  and  Privileges,  343. 

270 


Vol.  IV.  CONSTITUTIONAL  LAW. 

18.  Property  Rights  Jure  ]\Iaritii,  344. 

19.  Right  to  Dispose  of  Property  by  Will ;    Rights  of  Heirs,  Devisees, 

etc.,  344. 
21.  Interest  or  Estate  in  Profession  or  Occupation,  345. 

26.  Riparian  Rights,  345. 

27.  Vested  Rights  under  Contracts,  345. 

28.  Citizenship  as  a  Vested  Right,  345. 

C.  What  Constitutes  Impairment  of  Vested  Rights,  345. 

2.  Impairment  by  Legislative  Construction  of  Statutes,  345. 
8.  Retrospective  Tax  Laws ;    Collection  of  Back  Taxes,  345. 

11.  Laws  Affecting  Rights  of  Action  and  Defenses,  345. 

a.  Rights  of  Action,  345. 

b.  Defenses,  346. 

12.  Vested  Rights  under  Judgments  and  Decrees,  346. 

13.  Laws  Touching  Remedies  and  Procedure,  346. 

e.  Retrospective  Statutes  of  Limitations,  346. 

(1)   Statutes  Limiting  Time  for  Bringing  Action,  346. 

f.  Laws  Affecting  the  Rules  of  Evidence,  347. 

IX.  Due  Process  of  Law,  348. 

X.  Impairment  of  the  Obligation  of  Contracts,  349. 

XI.  The  Rights  of  Life,  Liberty,  Private  Property  and  the  Pursuit  of 
Happiness,  349. 

XrV.  Justice  without  Denial,  Purchase  or  Delay,  349. 

XVII.  Political  Rights  and  Privileges  and  Their  Protection,  349. 

A.  Of  the  General  Rights  and  Privileges  Pertaining  to  Citizenship,  349. 

2.  Citizenship  in  the  States  and  the  Protection  Afforded  by  Art.  4,  § 

2,  of  the  United  States  Constitution,  349. 
a.  Persons  Entitled  to  Invoke  the  Protection  of  Art.  4,  §  2,  349. 

(6)  Corporations,  349. 

c.  Privileges  and  Immunities  Secured  to  Citizen  by  Art.  4,  §  2, 

349. 
(4)   Right  to  Fish  or  Fowl  in  Public  Waters  of  Another 
State,  349. 

(7)  The  Right  to  Engage  in  Trade,  Commerce  or  Lawful 

Business,  349. 
(10)   The  Right  to  Bring  Actions;  Remove  Causes,  350. 
(12)   As  to  Diverting  Waters  of  Interstate  Stream,  350. 

3.  Citizenship  of  the  L^nited  States,  351. 

a.  Generally,  351. 

b.  Citizenship  under  the  Fourteenth  Amendment  and  the  Privi- 

leges and  Immunities  of  United  States  Citizenship,  351. 

(1)  Who  Are  Citizens  under  the  Fourteenth  Amendment, 

351. 

(2)  Of  the  General  Object  and  Purpose  of  the  Fourteenth 

Amendment,  351. 
(a)   To  Define  Citizenship  and  Confer  the  Same  upon 
the  Negro  Race,  351. 

(c)  Police  Powers  Remain  Unrestricted.  351. 

(d)  Protection  of  Life,  Liberty  and  Property  Rests  Pri- 

marily with  the  States,  351. 

(e)  Provides  Additional  Security  against  State  Infringe- 

ment;  but  against  State  Infringement  Only,  352. 

271 


COXSTITUTIOKAL  LAW.  Vol.  IV. 

(f)    Privileges  and  Immunities  Clause  Protects  Only  the 
Privileges  and  Immunities  Pertaining  to  Citizen- 
ship of  the  United  States,  352. 
(3)    Privileges  and  Immunities  of  United  States  Citizenship, 
352. 

(a)  Privileges  and  Immunities  Defined,  352. 

(b)  Rights    Protected   bv   the  First   Ten   Amendments, 

352. 
(i)   Access  to  All  the  Courts;  Removal  of  Causes,  353. 
(n)   Right  to  Pursue  Ordinary  Trade  or  Calling,  353. 
(o)   Equal   Protection   of   the   Laws;    Equal   Taxation, 

etc.,  353. 

XVIII.  Protection  to  Persons  Accused  of  Crime,  354. 

A.  Persons  Protected,  354. 

2.  Residents  in  the  Territories,  354. 

D.  Requirement  as  to  Presentment  or  Indictment  in  Capital  and  Infamous 

Cases,  354. 

1.  General  Nature  and  Purpose  of  Requirement,  354. 

2.  Not  a  Restriction  upon  the  States,  354. 
4.  Persons  Protected,  354. 

c.  Residents  within  the  Territories,  354. 

E.  Right  to  Be  Informed  of  Nature  and  Cause  of  Accusation,  354. 

1.  S'xth  Amendment  Not  a  Limitation  upon  State  Power,  354. 

F.  Right  to  Confront  Accusers  and  Witnesses,  354. 

1.  Provision  Not  Applicable  to  Trials  in  State  Courts,  354. 

2.  General  Object  and  Purpose  of  the  Constitutional  Guaranty,  354. 
4.  Exceptions  and  Limitations  to  Constitutional  Guaranty.  355. 

a.  Generally,  355. 

c.  Specific  Exceptions   and  Limitations,  355. 

(6)  Names  of  Witnesses  Appearing  before  Grand  Jury,  ZSd. 

(7)  Upon  Suggestion  of  Diminution  of  Record,  355. 

(8)  Waiver  of  Consent.  355. 

G.  Right  to  Speedy  Trial,  355. 

2.  Under  the  Constitution,  355. 

c.  Implies  the  Right  to  a  Trial  Itself,  355. 
I.  Assistance  of  Counsel.  356. 
L.  Self-incrimination,  356. 

2.  Provision  in  the  Fifth  Amendment  Not  Applicable  to  the  States, 

356. 

3.  Who  jMay  Invoke  Benefit  of  This  Provision,  356. 

a.  Witness  Need  Not  Be  a  Party  Defendant,  356. 

b.  Distinctions  between  Natural  Persons  and  Corporations,  356. 
b  ^.  As  Dependent  upon  Capacity  in  \Miich  Books  Are  Held; 

Right  of  Corporate  Officers  to  Refuse  to  Produce  Cor- 
porate Books,  ZS7. 

c.  A  Personal  Privilege.  359. 

4.  In  \Miat  Proceedings  Applicable,  359. 

5.  What  Constitutes  a  Violation  of  the  Constitutional  Principle,  359. 

b.  Seizure    or    Compulsory    Production    of    Private    Books    and 

Papers  to  Be  Used  in  Evidence,  359. 

c.  Compelling  Accused  to  Stand  LTp,  Walk  before  Jury,  etc.,  359. 
c  Yz.  Compelling  Bankrupt  to  Produce  Books  and  Papers,  360. 
c  ]/4.  Compelling  Publicity  as  to  Tax  Returns,  360. 

272 


Vol.  IV.  COXSTITUTIONAL  LAW.  25-31 

d.  Exceptions  and  Limitations,  360. 

(4)  Immunity  Statutes,  360. 

(5)  Waiver  of  Privilege,  361. 

(6)  Witness  Taking  Stand  in  His  Own  Behalf;  Cross-Exam- 

ination,  Impeachment,  etc.,  362. 
M.  Excessive  Bail  or  Fines ;    Cruel  and  Unusual  Punishment,  364. 

2.  Excessive  Fines ;    Cruel  and  Unusual  Punishments,  364. 

c.  What  Constitutes  Cruel  or  Unusual  Punishment,  or  Excessive 

Fine,  364. 

XIX.   Ex  Post  Facto  Laws  and  Bills  of  Attainder,  364. 

C.  Definitions  and  General  Principles,  364. 
1.  Ex  Post  Facto  Laws,  364. 

d.  Refer  Only  to  Crimes,  364. 
E.  Rule  of  Construction,  365. 

I.  Infringement  of  the  Constitutional  Guaranty,  365. 

1.  Laws  Making  That  Criminal  Which  \\'as  Not  So  in  Its  Inception. 
365. 
b  3' J-   Penalizing    the  Carrying  Out  of    Contracts  \Miich    \\'ere 
Lawful  When  Entered  into,  365. 

3.  Increase  of  Punishment  for  Subsequent  Offenses,  366. 
ZYi.  Indeterminate  Sentence  Acts,  366. 

CROSS   REFERENCES. 

See  the  title  Constitutional  Law,  vol.  4,  p.  1,  and  references  there  given. 

See  ante,  Aliens,  p.  18;  Appeal  and  Error,  p.  34;  Autrhfois,  Acquit  and 
Convict,  p.  161 ;  Bankruptcy,  p.  168;  Boundaries,  p.  206;  Chinese  Exclusion 
Acts,  p.  232 ;  Citizenship,  p.  235 ;  Civil  Rights,  p.  236 ;  Common  Law,  p.  245 ; 
post,  Corporations;  Courts;  Criminal  Law;  District  oe  Columbia;  Dub 
Process  oe  Law  ;  Eminent  Domain  ;  Extradition  ;  Foreign  Judgments, 
Records  and  Judicial  Proceedings  ;  Grand  Jury  ;  Habeas  Corpus  ;  Health  ; 
Impairment  oe  Obligation  of  Contracts;  Indians;  Injunctions;  Intoxi- 
cating Liquors;  Jurisdiction;  Jury;  Labor;  Lotteries;  Military  Law; 
Monopolies  and  Corporate  Trusts;  Navigable  Waters;  Postal  Laws; 
Public  Lands;  Religious  Societies;  Removal  oe  Causes;  Revenue  Laws; 
Special  Assessments  ;  States  ;  Statutes  ;  Succession  Taxes  ;  Summons  and 
Process;  Territories;  Treaties;  War;  Water  Companies  and  Waterworks; 
Waters  and  Watercourses;  Wharves  and  WharEingers;  Witnesses. 

I.  Definition  and  Nature  of  a  Constitution. 

Permanent  in  Design. — See  note  5. 

III.  Construction  of  Constitutions. 

A.  By  Whom  Construed — 2.  State  Constitutions. — The  interpretation  of 
a  state  constitution  and  the  conformity  of  an  enactment  of  the  state  legislature 
to  that  constitution  are  questions  solely  for  the  consideration  of  the  state  courts, 
whose  decision  thereon  concludes  the  federal  supreme  court.  That  court  has 
no  authority,  upon  a  writ  of  error  to  a  state  court,  to  declare  a  state  enactment 
void  on  the  ground  that  it  is  in  conflict  with  the  state  constitution,  but  is  lim- 
ited to  the  consideration  of  the  question  whether  or  not  it  is  in  conflict  with  the 
federal  constitution.--^'^ 

25-5.     Permanent  in  design.— Wcems  i\  161,  52  L.  Ed.  1.51,  28  S.  Ct.  40;  Seaboard 

United  States,  217  U.  S.  349,  54  L.  Ed.  793,  Air  Line  Railway  v.  Seegers.  207  U.  S.  73, 

30   S.   Ct.    544.  52    L.    Ed.  108,    28  S.    Ct.    28;    Palmer    v. 

31-25a.    Hunter  v.    Pittsburg,    207    U.    S.  Texas,  212   U.   S.   118,   131,   53   L.   Ed.   435, 

12    U    S    Enc— 18  273 


37-53  CONSTITUTIOXAL  LAW.  Vol.  IV. 

Conflict  of  State  Law  with  Federal  Constitution — Acceptance  of  Con- 
struction of  State  Court. — See  post,  "Power  of  Judiciary  to  Declare  Statutes 
Unconstitutional,"  VI,  D,  3,  d,   (4),   (b),   (aa). 

B.  General  Rules  and  Principles  of  Construction — 3.  Construction  in 
Tiir;  Light  of  CoNTEMPORiVNEous  History  and  Existing  CoKtditions. — Lan- 
guage Embraces  New  Conditions  as  They  Arise. — Legislation,  both  stat- 
utory and  constitutional,  is  enacted,  it  is  true,  from  an  experience  of  evils  but 
its  general  language  should  not,  therefore,  be  necessarily  confined  to  the  form 
that  evil  had  theretofore  taken.  Time  works  changes,  brings  into  existence  new 
conditions  and  purposes.  Therefore  a  principle,  to  be  vital,  must  be  capable  of 
wider  application  than  the  mischief  which  gave  it  birth.  This  is  peculiarly  true 
of  constitutions.  They  are  not  ephemeral  enactments,  designed  to  meet  passing 
occasions.  They  are,  to  use  the  words  of  Chief  Justice  Marshall,  "designed  to 
■approach  immortality  as  nearly  human  institutions  can  approach  it."  The  future 
is  their  care,  and  provision  for  events  of  good  and  bad  tendencies  of  which  no 
prophecy  can  be  made.  In  the  application  of  a  constitution,  therefore,  con- 
templation can  not  be  only  of  what  has  been,  but  of  what  may  be.  LTnder  any 
other  rule  a  constitution  would  indeed  be  as  easy  of  application  as  it  would  be 
deficient  in  efficacy  and  power.  Its  general  principles  would  have  little  value, 
and  be  converted  by  precedent  into  impotent  and  lifeless  formulas.  Rights  de- 
clared in  words  might  be  lost  in  reality.  And  this  has  been  recognized.  The 
meaning  and  vitality  of  the  constitution  have  developed  against  narrow  and  re- 
strictive construction."*  2a 

10.  CoNFucTiNG  AND  INEFFECTIVE  PROVISIONS. — Where  fundamental  prin- 
ciples of  the  constitution  are  of  equal  dignity,  neither  should  be  so  enforced  or 
construed  as  to  nullify  or  substantially  impair  the  other."^^ 

17.  Construction  Strict  or  Liberal,  When. — Limitations  upon  Powers 
of  Congress. — W^hile  tl\e  provisions  granting  powers  to  congress  are  to  be 
liberally  construed  in  order  to  enable  it  to  carry  into  effect  the  powers  conferred, 
it  is  equally  true  that  prohibitions  and  limitations  upon  those  powers  should  be 
fairly  and  reasonably  enforced. ^^^^ 

IV.  Operation  and  Effect. 

B.  Supremacy  as  the  Law — 2.  The  Federal  Constitution,  Laws  and 
Treaties — a.  Generally. — The  federal  constitution,  it  is  only  elementary  to  say, 
is  the  supreme  law  of  the  land,  and  all  its  applicable  provisions  are  binding  upon 
all  within  the  territory    of    the  L^nited  States.     Wlienever  its  protection  is  in- 

29    S.    Ct.    230;    Kiernan    v.    Portland,    223  States,  217  U.  S.  349,  54  L.  Ed.  793,  30  S. 

U.  S.  151,  56  L.  Ed.  386,  32  S.  Ct.  231.  Ct.  544,  551. 

Constitutionality  of  the  initiative  and  49-79a.  Conflicting  and  ineffective  pro- 
referendum  in  Oregon.— For  example,  visions.— Dick  v.  United  States,  208  U.  S. 
questions  as  to  the  validity  under  the  state  340,  353,  53  L.  Ed.  520.  28  S.  Ct.  399. 
constitution  of  Oregon  of  the  Laws  of  For  example,  m  regulatmg  commerce 
1907,  chap.  226,  authorizing  the  voters  of  with  the  Indian  tribes,  congress  must 
a  municipality  to  resort  to  the  initiative  have  regard  to  the  general  authority 
to  amend  its  charter,  and  as  to  the  reg-  which  the  state  has  over  all  persons  and 
ularity  of  the  proceedings  leading  up  to  things  within  its  jurisdiction.  On  the 
the  adoption  of  an  amendment,  and  of  other  hand,  the  authority  of  the  state 
the  proceeding  culminating  in  the  adop-  "^ust  not  be  so  exerted  as  to  impair  the 
tion  of  a  particular  ordinance,  are  not  POwer  of  congress  to  regulate  commerce 
federal,  and  hence  will  not  support  a  with  the  Indian  tribes.  Dick  v.  United 
writ  of  error  from  the  federal  supreme  States,  208^  U.  S.  340,  353,  52  L.  Ed.  520, 
court  to  a  state  court.     Kiernan  v.  Port-  ^^    5-    ^t.   .''.99.  _      _ 

land,  223  U.  S.  151,  56  L.  Ed.  386,  32  S.  Ct.  53-96a.      Limitations    upon     powers     of 

231  congress. — Keller    v.    United    States,     213 

o^  .„  T  o  u  A-  U.  S.   138,  53  L.  Ed.  737,  29  S.  Ct.  470,  cit- 

37-42a.  Language  embraces  new  condi-  r>  ■  u     ^         tt   -i-^a   c*^<^«^    ioi   tt    c 

tlonc!    a^  tViPv    ar^<!«.      Wpf>m<;    7,     TTnitPfl  '"^  Fairbank  V.   United   States,   181  U.    S. 

tions    as  they    anse.— Weems    v.     United  ^gg^  ^^  j^    ^^    gg^^  2i  S.  Ct.  648. 

274 


Vol.  I\'.  CONSTITUTIONAL  LAW.  58-73 

j^oked,  the  courts  of  the  United  States,  both  state  and  federal,  are  bound  to  see 
that  rights  guaranteed  by  the  federal  constitution  are  not  violated  by  legislation 
of  the  state.i-'^ 

Unconstitutionality  Not  Cured  by  Inserting-  Constitutional  Requisites 
in  Judgment. — The  want  of  the  requisite  provisions  in  a  statute  to  render  it 
constitutional  can  not  be  cured  by  inserting  them  in  judgments  under  it.  The 
law  itself  must  save  the  parties'  rights,  and  not  leave  them  to  the  discretion  of 
the  courts  as  such.^^^ 

c.  Supreme  over  State  Lazvs,  Officers  and  Agents  as  ffV//  as  Federal — (1) 
Generally. — See  note  22. 

Including  New  States  and  Territories. — The  enactment  of  a  law  by  a  ter- 
ritorial government  is  the  exercise  of  an  authority  under  the  United'  States 
within  the  meaning  of  that  provision  of  the  federal  constitution  which  declares 
the  supremacy  of  the  authority  of  the  national  government  within  the  limits  of 
the  constitution."'^^ 

(2)  Supremacy  of  Federal  Constitution,  Lazes  and  Treaties  in  Case  of  Con- 
flict zvitJi  Resewed  Powers  of  the  States. — See  post,  "Supremacy  in  Case  of 
Conflict  between  State  and  Federal  Powers,"  VI,  D,  3,  c,  (6),  (b),   (hh). 

d.  Limitations  upon  the  Supremacy  of  the  Federal  Constitution,  Treaties  and 
Laws — (2)  Limitations  upon  Treaties  as  the  Supreme  Lazo- — (b)  Supremacy 
over  Acts  of  Congress. — See  note  35. 

e.  Duty  of  Courts  to  Uphold  and  Maintain  the  Supremacy  of  the  Federal  Con- 
stitution. Treaties  and  Lazes. — See  note  40. 

F.  Self-Executing  Provisions. — See  note  60. 

G.  Who  May  Raise  Constitutional  Questions — 1.  GexiCrally. — One  who 
is  not  harmed  by  the  operation  of  a  statute  alleged  to  be  unconstitutional  is  not 
entitled  to  draw  in  question  or  test  its  validity,  and  it  is  the  settled  law  of  the 
federal  supreme  court  that  one  who  would  strike  down  a  state  statute  as  vio- 
lative of  the  federal  constitution  must  bring  himself,  by  proper  averments  and 
showing,  within  the  class  as  to  whom  the  act  thus  attacked  is  unconstitutional. 
He  must  show  that  the  alleged  unconstitutional  feature  of  the  law  injures  him, 

58-12a.    Supremacy   of  the   federal  con-  Cherokee    Tobacco,    11    Wall.    616,    20    L. 

stitution,  laws,  and  treaties. — Southern  R.  Ed.  227:  Fong  Yue  Ting  v.  United  States, 

Co.    z:    Greene,    216    U.    S.    400,    54    L.    Ed.  149  U.  S.  698,  720,  37  L.  Ed.  90.5,  13  S.  Ct. 

536,  30  S.  Ct.  287.  1016:  Ward  :■.  Race  Horse.  163  U.  S.  504, 

58-13a.     Unconstitutionality    not    cured  511,  41  L.  Ed.  244,  16  S.  Ct.  1076,  Draper  v. 

by    inserting    constitutional    requisites    in  United    States,    164   U.    S.   240,-  243,   41    L. 

judgment.— Louisville,  etc.,  R.  Co.  v.  Cen-  Ed.  419,  17  S.  Ct.  107. 

tral    Stock  Yards    Co.,  212    U.  S.  132.    144.  An     act    of     congress    passed     after    a 

53    L.    Ed.    441,   29    S.    Ct.   246.      See.    also,  treaty  takes  effect  must  be  respected  and 

Security  Trust,  etc.,  Co.  v.  Lexington,  203  enforced  despite  any  previous  or  existing 

U.    S.    323,   333,    51    L.    Ed.    204:    Roller   z:  treaty    provision     on     the     same     subject. 

Holly.   176   U.    S.   398,   409,   44   L.    Ed.    520.  Sanchez   z:    United    States,   216    U.    S.    167, 

20  S    Ct    410  54    L.    Ed.    432.    30    S.    Ct.    361. 

fin  22        «;iinrPmP     ovpr      «!tate     laws      of  ^^-^^-      ^"^y    °^    COUrtS    to    uphold     SU- 

60-22.     Supreme    over     state    laws,    ot-  ^^emacy  of  constitution— Laws  and  trea- 

ricers    and    agents. — Adams    Exp.    Co.    z\  ".          c      ,.1            r.      r^               n.-     „„      --y-ia 

n                       1T1,     »-,A    1-    c    010     -o   T      -CA  ties. — Southern     R.     Co.     z\     Greene.     216 

Commonwealth.   214   L.   S.   218,   o3   L.   Ed.  -r^     e     ,nn     -it      -ca     -q«    qa    c     r*-    o«7- 

n-.T    nn  o    /-<i    /-oo     o      i.1            T>    r'            T)    -A  L .    b.    400,    o4    L.    Lcl.    d36.    30    b.    L-t.    iioi , 

9/2,  29  S.  Ct.  633:  Southern  R.  Co.  z'.  Reid.  o          j    t:^       i            >    t  •  u-r*      r<^c«o     ooi 

999  TT    Q    ^91    ^A  T     JTA    9=7    Q9  Q    Pf    i^fi-  Sccoud    Employers     Liability    Cases,    223 


222  U.  S.  424,  56  L.  Ed.  257.  32  S.  Ct.  140; 


U.    S.    1,    56    L.    Ed.    327.    32    S.    Ct.    169. 


?rr?  ^T^v^rLHo^i^'%  ?«q'''    ~~'^  73-60.'    Self-executing'  pro;isions-Ilius- 

u.  s.  1,  Ob  u  lid.  6Zi.  6Z  b.  ^i.  iby.  trations— Provision  for  suits  against  state. 

6_3-30a.    Includmg  new  states  and  tern-  _Const.    1870.    providing    that    suits    may 

tories. — Atchison,   etc.,    R.    Co.   v.    Sowers.  i^g    brought    against    the     state     in     such 

213  U.   S.  55,  53  L.  Ed.  695.  29   S.   Ct.  397.  manner  and  in  such  courts  as  the  legisla- 

65-35.   Supremacy  over  acts  of  congress.  ture  may  by  law  direct,  is  not  self-execut- 

— An  act  of  congress   may  repeal   a  prior  ing.      General   Oil   Co.  v.   Grain,   95   S.   W. 

treaty   as    well    as   it    may    repeal    a   prior  824,   117   Tenn.   82,   121   .\m.   St.    Rep.   967, 

act.      Ex   parte    Webb,   225    U.    S.    663,   56  affirmed     in  General  Oil  Co.  z\  Grain.  209 

L.    Ed.    1248,    32    S.    Ct.    769,    citing    The  U.   S.  211,  52  L.  Ed.  754,  28   S.   Ct.  475. 

275 


74 


CONSTITUTIONAL  LAW 


Vol.  IV. 


and  so  operates  as  to  deprive  him  of  rights  protected  by  the  federal  constitu- 
tion.^^^ 


74-62a.  Who  may  raise  constitutional 
questions — Generally. — Southern  R.  Co.  z'. 
King,  217  U.  S.  524,  54  L.  Ed.  868,  30  S. 
Ct.  594;  Tyler  v.  Judges,  179  U.  S.  405,  45 
L.  Ed.  252,  21  S.  Ct.  206;  Turpin  v.  Lemon, 
187  U.  S.  51.  60,  47  L.  Ed.  70,  23  S.  Ct.  20; 
Hooker  v.  Burr,  194  U.  S.  415,  48  L.  Ed. 
1046.  24  S.  Ct.  706;  Hatch  v.  Reardon,  204 
U.  S.  152,  160,  51  L.  Ed.  415,  27  S.  Ct.  188; 
Lindsey  v.  Natural  Carbonic  Gas  Co.,  220 
U.  S.  61,  55  L.  Ed.  369,  31  S.  Ct.  337, 
citing  Clark  v.  Kansas  City,  176  U.  S. 
114,  118,  44  L.  Ed.  392,  20  S.  Ct.  284; 
»  Standard  Stock  Food  Co.  v.  Wright,  225 
U.  S.  540,  56  L.  Ed.  1197,  32  S.  Ct.  784; 
Collins  V.  Texas,  223  U.  S.  288,  295,  56  L. 
Ed.  439,  32  S.  Ct.  286;  Brown-Forman 
Co.  V.  Commonwealth,  217  U.  S.  563,  54 
L.  Ed.  883,  30  S.  Ct.  578,  affirming  Brown- 
Foreman  Co.  V.  Kentucky,  125  Ky.  402, 
101  S.  W.  421;  Lee  v.  New  Jersey,  207 
U.  S.  67,  52  L.  Ed.  106,  28  S.  Ct.  22; 
Atlantic,  etc.,  R.  Co.  v.  Riverside  Mills, 
219  U.  S.  186,  55  L.  Ed.  167,  31  S.  Ct.  164; 
Williams  v.  Walsh,  222  U.  S.  415,  56  L. 
Ed.  253,  32  S.  Ct.  137;  Laurel  Hill  Ceme- 
tery V.  San  Francisco,  216  U.  S.  358,  54 
L.  Ed.  515.  30  S.  Ct.  301;  Engel  v.  O'Mal- 
ley,  219  U.  S.  128,  55  L.  Ed.  128,  31  S. 
Ct.  191;  Grenada  Lumber  Co.  v.  Missis- 
sippi, 217  U.  S.  433,  54  L.  Ed.  826,  30  S.  Ct. 
535;  Citizens'  Nat.  Bank  v.  Common- 
wealth, 217  U.  S.  443,  54  L.  Ed.  832,  30 
S.  Ct.  532;  Southwestern  Oil  Co.  r.  Texas, 

217  U.  S.  114,  54  L.  Ed.  688,  30  S.  Ct. 
496;  Provident  Institution  for  Savings  v. 
Malone,  221  U.  S.  660,  55  L.  Ed.  899,  31 
S.    Ct.    661:    Calder   v.    Attorney    General, 

218  U.  S.  591,  54  L.  Ed.  11Q3,  31  S.  Ct. 
122;  District  of  Columbia  z>.  Brooke,  214 
U.  S.  138,  53  L.  Ed.  941,  29  S.  Ct.  560; 
New  York,  etc.,  R.  Co.  v.  United  States, 
212  U.  S.  481,  53  L.  Ed.  613,  29  S.  Ct.  304; 
S.  C,  212  U.  S.  500,  53  L.  Ed.  624,  29 
S.  Ct.  309;  Home  Tel.,  etc.,  Co.  v.  Los 
Angeles,  211  U.  S.  ;i65,  280,  53  L.  Ed.  176, 
29  S.  Ct.  50;  Berea  College  v.  Common- 
wealth, 211  U.  S.  45,  53  L.  Ed.  81,  29  S. 
Ct.  33;  Keeney  v.  Comptroller,  222  U.  S. 
525,  56  L.  Ed.  299,  32  S.  Ct.  105;  Waters- 
Pierce  Oil  Co.  r.  Deselms.  212  U.  S.  159, 
53  L.  Ed.  453,  29  S.  Ct.  270;  Hammond 
Packing  Co.  v.  Arkansas,  212  U.  S.  322, 
344,  53  L.  Ed.  530,  29  S.  Ct.  370;  Murphy 
V.  California.  225  U.  S.  623,  56  L.  Ed. 
1229.  32  S.  Ct.  697;  Kentucky  Union  Co. 
V.  Commonwealth,  219  U.  S.  140.  55  L. 
Ed.  137,  31  S.  Ct.  171;  .Muminum  Co.  z'. 
Ramsey,  222  U.  S.  251,  56  L.  Ed.  185,  32 
S.    Ct.   76. 

"Unless  appellant  can  show  that  he 
himself  has  been  wrongfully  included  in 
the  terms  of  the  law,  he  can  have  no 
just  ground  of  complaint."  The  same 
principle    has    been    often    announced    by 


this  court  in  many  cases,  the  last  instance 
being  in  Citizens'  Nat.  Bank  v.  Common- 
wealth an  opinion  handed  down  with. 
Citizens'  Nat.  Bank  v.  Commonwealth,  217 
U.  S.  443,  54  L.  Ed.  832,  30  S.  Ct.  532;  Gren- 
ada Lumber  Co.  v.  jMississippi,  217  U.  S. 
433,  54  L.  Ed.  826,  30  S.  Ct.  535. 

Statute  invalid  as  to  other  persons  or 
classes — Possibility  of  unconstitutional 
construction  on  enforcement  in  other 
cases. — A  judgment  of  a  state  court 
which  does  not  so  enforce  a  state  statute 
as  to  deprive  the  party  complaining  of 
rights  which  are  protected  by  the  federal 
constitution  will  not  be  reversed  in  the 
supreme  court  of  the  United  States  be- 
cause such  statute,  when  enforced  against 
a  class  to  which  the  party  complaining 
does  not  belong,  may  work  a  deprivation 
of  such  constitutional  rights.  Judgment, 
State  V.  Lee  (1905)  59  A.  1118,  affirmed. 
Lee  V.  New  Jersey,  207  U.  S.  67,  52  L. 
Ed.   106,  28   S.   Ct.   22. 

Same — New  Jersey  oyster  laws. — For 
example,  in  a  prosecution  under  the  New 
Jersey  statute  for  the  illegal  use  of  oys- 
ter dredges  in  the  tidal  waters  of  that 
state,  the  defendant  can  not  object  to 
the  constitutionality  of  the  statute  upon 
the  ground  that  the  statute  might  be  so 
construed  as  to  infringe  and  penalize  the 
mere  navigation  of  such  waters,  in  viola- 
tion of  the  14th  Amendment  and  the 
interstate  commerce  clause  of  the  fed- 
eral constitution  where  it  was  shown  at 
the  trial  that  defendant  was  not  engaged 
in  merely  navigating  such  waters,  but 
was  unlawfully  engaged  in  dredging  for 
oysters,  and  where  the  state  court,  in 
instructing  the  jury,  construed  the  stat- 
ute as  authorizing  a  conviction  only  in 
case  they  should  find  that  the  defendant 
was  unlawfully  engaged  in  taking  oysters 
contrary  to  its  provisions.  Lee  v.  New 
Jersey,  207  U.  S.  67,  52  L.  Ed.  106,  28  S. 
Ct.    22.  •  _ 

Same  objection  to  penal  provisions 
where  no  penalty  sought  to  be  recov- 
ered.— Objections  to  the  invalidity  under 
the  federal  constitution  of  the  provisions 
as  to  penalties  in  Gen.  Laws  Tex.  1905, 
c.  148,  §  9,  taxing  wholesale  dealers  in 
oils,  are  not  open  in  a  civil  suit  brought 
by  the  state  to  recover  the  taxes  so  im- 
posed, where  no  penalties  are  sought  to 
be  recovered  in  that  suit,  and  where  the 
provision  as  to  penalties  is  not  so  neces- 
sarily connected  with  the  other  parts  of 
the  statutes  as  to  violate  the  entire  act, 
even  if  that  provision  should  be  held  to 
be  void.  Southwestern  Oil  Co.  v.  Texas, 
217  U.  S.  114,  54  L.  Ed.  688,  30  S.  Ct.  496, 
affirmed  in  100  Tex.  647,  103  S.  W.  489. 

The  validity  of  the  penalties  prescribed 
by  the  Mississippi  anti-trust  laws  can  not 


276 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


74 


be  challenged  in  a  suit  in  which  the 
state,  instead  of  seeking  to  enforce  the 
penalties  prescribed  by  the  act,  contents 
itself  with  a  bill  in  equity  to  dissolve  an 
association  which  those  laws  condemned 
as  a  combination  in  restraint  of  trade. 
Grenada  Lumber  Co.  v.  Mississippi,  217 
U.  S.  433.  54  L.  Ed.  826,  30  S.  Ct.  535, 
affirming  Retail  Lumber  Dealers'  Ass'n  f. 
State,  48   So.   1021. 

The  penaltjr  provisions  are  plainly  sep- 
arable from  the  section  under  which  such 
a  combination  is  declared  illegal.  The 
penalty  section  not  being  invoked,  the 
court  is  not  called  upon  to  give  any 
opinion  in  respect  to  it.  Grenada  Lum- 
ber Co.  V.  Mississippi,  217  U.  S.  433,  54 
L.  Ed.  826,  30  S.  Ct.  535;  Attorney  Gen- 
eral V.  Delaware,  etc.,  Co.,  213  U.  S.  366, 
417,  53  L.  Ed.  835,  29  S.  Ct.  527;  South- 
western Oil  Co.  V.  Texas,  217  U.  S.  114, 
54    L.    Ed.    688,    30    S.    Ct.    496. 

Same — Federal  act  imposing  liability 
upon  initial  carrier. — The  constitutional- 
ity of  the  act  of  Feb.  4,  1887,  ch.  104,  § 
8,  24  Stat.  386  (U.  S.  Comp.  Stat.  1901, 
p.  3154),  as  amended  by  act  of  June  29, 
1906,  ch.  3591,  §  7,  34  Stat.  593  (U.  S. 
Comp.  Stat.  Supp.  1909,  p.  1163)  appli- 
cable to  interstate  carriers  and  imposing 
upon  the  initial  carrier  liability  for  loss 
regardless  of  whether  the  same  occurred 
on  its  portion  of  the  route  or  upon  that 
of  a  connecting  carrier,  can  not  be  at- 
tacked upon  the  ground  that  it  deprives 
the  receiving  carrier  of  its  liberty  to 
select  its  own  agencies  for  a  continuous 
route  for  the  transportation  beyond  its 
own  line,  where  it  appears  that  in  the 
instant  case  the  defendant  had  selected 
its  own  agencies  and  connecting  carriers 
and  made  its  own  arrangements  and  rates 
before  receiving  the  shipment  and  of 
which  the  action  arose.  Atlantic,  etc.,  R. 
Co.  V.  Riverside  Mills,  219  U.  S.  186,  55 
I,.  Ed.  167,  31  S.  Ct.  164;  followed  in 
Louisville,  etc.,  R.  Co.  v.  Scott,  219  U. 
S.  209.  55  L.  Ed.  183,  31  S.  Ct.  171. 

Objections  to  statutes  denying  the 
equal  protection  of  the  laws — Corpora- 
tion can  not  object  to  statute  which  is  in- 
valid only  as  to  individuals  or  other  cor- 
porations.— Where  a  statute  is  unconstitu- 
tional as  to  individuals,  but  not  as  to 
corporations,  and  is  separable,  so  that 
it  may  be  sustained  as  to  corporations, 
they  can  not  object  to  it  on  the  ground 
that  it  is  unconstitutional  as  applied  to 
individuals.  Berea  College  v.  Common- 
wealth, 211  U.  S.  45,  53  L.  Ed.  81,  29  S. 
Ct.    33. 

Where  the  state  court  by  its  construc- 
tion treated  the  statute,  in  so  far  as  its 
prohibitions  were  addressed  to  individ- 
uals, as  separable  from  its  requirements 
as  to  corporations,  the  want  of  con- 
stitutional power  to  include  individuals 
within  the  prohibitions  of  the  act,  does 
not   afTect   the   validity   of  the   laws   as   to 


corporations.  Hammond  Packing  Co.  v. 
Arkansas,  212  U.  S.  322,  344,  53  L.  Ed. 
530,   29    S.    Ct.    370. 

Same — Same — Kentucky  act  enforcing 
separation  of  races  in  schools. — The  pos- 
sil)le  invalidity,  as  applied  to  individuals, 
of  the  Kentucky  acts  of  1904,  chap.  85, 
prohibiting  the  teaching  of  white  and 
negro  pupils  in  the  same  institution,  can 
not  be  raised  by  a  corporation,  which 
desires  to  conduct  a  mi.xed  school,  where 
the  highest  court  of  the  state  considers 
the  act  separable,  and  while  sustaining  it 
in  its  entirety,  gives  an  independent 
reason  which  applies  only  to  corpora- 
tions. Berea  College  i'.  Commonwealth, 
211    U.    S.    45,    53    L.    Ed.    81,   29    S.    Ct.    33. 

Same — Same — Arkansas  act  abolishing 
fellow  servant  rule. — A  corporation  oper- 
ating a  railroad  in  the  state  can  not 
challenge  the  validity  of  Act  Ark.  March 
8,  1907,  p.  162;  abolishing  the  fellow  serv- 
ant rule,  because  such  statute  may  make 
an  unconstitutional  discrimination  be- 
tween individuals  and  corporations  en- 
gaged in  mining,  but  not  operating  rail- 
roads. It  is  limited  in  its  complaint  to 
the  effect  of  the  statute  on  it,  and  can 
not  appropriate  the  grievance  that  cor- 
porations engaged  in  mining,  but  not  oper- 
ating railroads,  may  have  on  account  of 
the  distinction  made  between  them  and 
individuals.  Aluminum  Co.  v.  Ramsey, 
222   U.   S.   251,  56   L.    Ed.   185,  32   S.   Ct.   76. 

Same — Same — Oklahoma  oil  inspection 
act. — A  contention  that  §  4  of  the  Okla- 
homa oil  inspection  act  of  1899  was  void 
because  of  the  alleged  unequal  punish- 
ment therein  provided  for  persons  and 
corporations  performing  the  same  act; 
will  not  be  considered  since  such  section 
is  clearly  separable  from  the  rest  of  the 
act,  as  held  by  the  court  below,  and  no 
wise  affected  the  unlawful  use  within  the 
territory  of  oil  which  did  not  conform 
to  the  standard  fixed  by  the  statute. 
Waters-Pierce  Oil  Co.  v.  Deselms,  212  U. 
S.    159,    174,    53    L.    Ed.    453,   29    S.    Ct.    270. 

Same — Same — Elkins  act  making  inter- 
state carriers  liable  for  acts  of  agents. — 
A  corporate  carrier  engaged  in  interstate 
commerce  has  no  standing  to  object  that 
the  last  paragraph  of  §  1  of  the  Elkins 
act  (32  Stat.  847)  is  unconstitutional  m 
that  it  applies  to  individual  carriers  as 
well  as  those  of  a  corporate  character 
and  attributes  the  acts  of  the  agents  of 
such  individual  carriers  to  them,  thereby 
making  the  crime  of  one  person  that  of 
another,  and  thus  depriving  the  latter  of 
due  process  of  law  and  the  presumption 
of  innocence  which  the  law  raises  in  his 
favor.  Moreover,  this  section  of  the  act 
is  separable,  and  even  if  the  presumption 
thus  created  as  to  individuals  were  un- 
constitutional, the  act  would  still  remain 
valid  as  to  corporate  carriers.  New  York, 
etc.,    R.    Co.    T'.    United    States,    212    U.    S. 


277 


74 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


V.  System  or  Theory  of  Constitutional  Government  in  General. 

A.  State  or  Government  Defined. — See,  also,  post,  "Sense  in  Which  Term 
'State'  Used  in  This  Connection,"  \  I,  D,  5,  a.     The  definition  of  "a  state"  is 


481,  53  L.  Ed.  613,  29  S.  Ct.  304;  S.  C, 
313  U.  S.  500,  53  L.   Ed.   624,  29   S.  Ct.  309. 

Same — Forfeiture  of  unlisted  lands — 
Rights  of  subsequent  purchasers. — Land 
owners  who  did  not  acquire  their  title 
until  after  the  delinquencies  had  occurred 
can  not  claim  to  have  been  denied  the 
equal  protection  of  the  laws  by  the  ap- 
plication to  them  of  the  provisions  of  the 
act  of  Kentucky  March  15,  1906,  c.  22, 
art.  3,  for  the  forfeiture  of  such  lands  to 
the  state,  because  of  the  failure  of  the 
owners  to  list  lands  for  taxation  and 
pay  the  taxes  thereon  for  certain  speci- 
fied years.  Kentucky  Union  Co.  v.  Com- 
monwealth, 219  U.  S.  140,  55  L.  Ed.  137,  31 
S.    Ct.    171. 

Same — Ordinance  excepting  certain  ho- 
tels from  regulations  concerning  pool 
rooms. — Only  hotel  keepers  having  less 
than  twenty-five  bedrooms  are  in  a  posi- 
tion to  assail  the  validity  of  a  discrimina- 
tion made  in  favor  of  larger  hotels  by  a 
municipal  ordinance  forbidding  the  keep- 
ing of  billiard  or  pool  tables  for  hire  or 
public  use,  but  permitting  hotel  keepers 
having  twenty-five  or  more  bedrooms  to 
maintain  a  billiard  or  pool  room  in  which 
their  regular  and  registered  guests  may 
play.  Murphy  v.  California,  225  U.  S. 
623,    56    L.    Ed.    1229,   32    S.    Ct.    697. 

Same — Inheritance  and  legacy  taxes. — 
The  children  of  a  decedent,  who,  because 
of  their  relationship,  are  assessed  at  the 
lowest  rate  fixed  by  N.  Y.  Laws,  1896, 
chap.  908,  imposing  a  tax  when  property 
is  transferred  by  deed  intended  to  take 
effect  at  the  death  of  the  grantor,  can  not 
urge  that  such  statute  operates  to  deny 
the  equal  protection  of  the  laws  because 
transfers  to  collaterals  and  strangers  in 
blood  are  taxed  a  higher  rate.  Keeney  v. 
Comptroller,  222  U.  S.  525,  56  L.  Ed.  299, 
32    S.    Ct.    105. 

Regulating  practice  of  medicine,  oste- 
opathy, etc. — Duty  of  complainant  to  show 
injury,  to  bring  himself  within  the  inhibi- 
tions of  the  statute,  etc. — An  osteopath 
whose  constitutional  rights  are  not  in- 
fringed by  the  requirements  of  Tex.  Laws, 
1907,  chap.  123,  with  respect  to  register- 
ing and  licensing  medical  practitioners, 
can  not  complain  that  the  statute  may  be 
unconstitutioTial  in  other  cases,  or  as  to 
followers  of  Christian  Science,  or  others. 
Collins  V.  Texas,  223  U.  S.  288,  56  L.  Ed. 
439,   32   S.    Ct.   286. 

The  requirements  of  Tex.  Laws  1907, 
chap.  123,  with  respect  to  licensing  and 
registering  medical  practitioners,  which 
do  not  contemplate  any  inquiry  into  the 
applicant's  knowledge  of  therapeutics  or 
materia  medica,  do  not  infringe  the  rights, 


under  U.  S-  Const.,  14th  Amend.,  of  a 
person  holding  a  diploma  from  a  school 
of  osteopathy,  who  has  not  presented 
this  diploma  to  the  board  of  medical  ex- 
aminers created  by  the  statute,  or  at- 
tempted to  secure  a  license  in  any  form. 
Collins  V.  Texas,  223  U.  S.  288,  56  L-  Ed. 
439,   32    S.    Ct.   286. 

Location  of  cemeteries — Rights  of  own- 
ers of  other  available  tracts. — The  avail- 
abilitj'  for  burial  purposes  of  other  large 
tracts  of  land  within  the  limits  of  the 
city  of  San  Francisco  can  not  be  alleged 
by  a  cemetery  association  owning  a  burial 
ground  within  those  limits,  to  invalidate, 
under  the  federal  constitution,  an  or- 
dinance forbidding  the  burial  of  the  dead 
within  the  city  and  county  of  San  Fran- 
cisco since,  as  regards  such  other  lots 
the  plaintiffs  have  no  grievance.  Decree 
(1907)  93  P.  70,  152  Cal.  464,  14  A.  &  E. 
Ann.  Cas.  1080,  affirmed.  Laurel  Hill 
Cemetery  v.  San  Francisco,  216  U.  S. 
358,  54  L.   Ed.   515,  30  S.  Ct.  301. 

Kentucky  act  taxing  shares  of  non- 
resident shareholders. — Only  nonresident 
shareholders  in  a  national  bank  can  com- 
plain of  the  supposed  invalidity,  as  to 
them,  of  the  retroactive  features  of  Ky. 
Act  of  March  21,  1900,  making  it  the 
duty  of  certain  officers  of  the  bank  to 
list  its  shares  of  stock  for  taxation,  and 
requiring  the  bank  to  pay  the  tax,  and 
a  penalty  for  delinquency.  Citizens'  Nat. 
Bank  v.  Commonwealth,  217  U.  S.  443, 
54    L.    Ed.    832,    30    S.    Ct.    532. 

Such  an  objection  can  not  be  made  by 
one  unaffected  by  the  alleged  invalid 
feature.  Citizens'  Nat.  Bank  v.  Common- 
wealth, 217  U.  S.  443,  54  L.  Ed.  832,  30  S. 
Ct.  532;  Austin  v.  Aldermen,  7  Wall.  694, 
19  L.  Ed.  224;  Supervisors  v.  Stanley, 
105  U.  S.  305,  26  L.  Ed.  1044;  The  Win- 
nebago, 205  U.  S.  354,  51  L.  Ed.  836,  27 
S.    Ct.    509. 

New  York  act  prescribing  residence 
requirement  for  private  bankers. — The 
constitutionality  of  a  state  statute  pro- 
viding for  the  licensing  of  private  banks 
can  not  be  attacked,  on  the  ground  that 
it  permits  the  licensing  only  of  persons 
who  have  been  residents  of  the  United 
States  for  five  years,  by  one  who  has 
been  a  resident  for  such  length  of  time, 
and  is  therefore  not  affected  by  the  pro- 
vision. (C.  C.  1910)  Engel  V.  O'Malley, 
182  F.  365.  Decree  affirmed  in  Engel  v. 
O'Malley,  219  U.  S.  128,  55  L.  Ed.  128, 
31    S.    Ct.   191. 

Massachusetts  act  requiring  payment  of 
inactive  and  unclaimed  deposits  to  state 
treasurer — Right  of  bank  to  object. — A 
savings  bank,  so  far,  at  least,  as  its  rights 


278 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


81-93 


found  in  the  powers  possessed  by  the  original  states  which  adopted  the  consti- 
tution.'^"'* 

B.  Powers  Possessed  by  Government. — Primarily,  governments  exist  for 
the  maintenance  of  social  order.  Hence  it  is  that  the  obligation  of  the  govern- 
ment to  protect  life,  liberty  and  property  against  the  conduct  of  the  inditlerent, 
the  careless,  and  the  evil  minded  may  be  regarded  as  lying  at  the  very  foundation 
of  the  social  compact.  A  recognition  of  this  supreme  obligation  is  found  in 
those  exertions  of  the  legislative  power  which  have  as  an  end  the  preservation 
of  social  order  and  the  protection  of  the  welfare  of  the  public  and  of  the  in- 
dividual.^-^^ 

VI.  Organization  of  Government  in  the  United  States. 

D.  Government  under  the  Constitution — 1.  Dual  Nature;  of  Govern- 
ment.— See  notes  18,   19. 

2.  The  United  States  as  a  Nation — a.  Generally. — See  note  21. 


are  involved  in  those  of  its  depositors, 
may  raise  the  objection  that  property  is 
taken  without  due  process  of  law  by 
Laws  Mass.  1907,  c.  340,  providing  that 
deposits  which  have  remained  inactive 
and  unclaimed  for  30  years,  where  the 
claimant  is  unknown  or  the  depositor 
can  not  be  found,  shall  be  paid  to  the 
treasurer  and  receiver  general,  to  be  held 
b}^  him  as  trustee  for  the  true  owner  or 
his  legal  representatives.  Provident  In- 
stitution for  Savings  v.  Malone,  221  U.  S. 
660,  55  L.  Ed.  899,  31  S.  Ct.  661,  affirming 
judgment  Malone  v.  Provident  Institu- 
tion for  Savings  in  Boston,  86  N.  E.  912, 
201   Mass.   23. 

Repeal  of  corporate  charter — Rights  of 
bondholders — Right  of  directors  to  urge. 
—The  directors  of  a  corporation  do  not 
represent  the  bondholders,  so  as  to  urge 
the  invalidity  as  to  them  of  a  statute 
repealing  the  corporate  charter.  Calder 
V.  Attorney  General.  218  U.  S.  591,  54  L. 
Ed.  1163,  31  S.  Ct.  122,  affirming  judgment 
People  V.  Calder  (1908)  117  N.  W.  314,  153 
Mich.  724,  126  Am.  St.  Rep.  550. 

Kansas  act  regulating  sale  of  black 
powder — Rights  of  importers,  who  may 
urge. — One  who  does  not  appear  to  have 
imported  black  powder  from  outside  the 
state  can  not  raise  the  question  of  the 
validity  under  the  commerce  clause  of 
the  federal  constitution  of  the  provisions 
of  Laws  Kan.  1907,  c.  250,  making  it 
unlawful  to  sell,  offer  for  sale,  or  deliver 
black  powder  for  use  in  any  coal  mines  in 
the  state  except  in  original  sealed  pack- 
ages containing  12J/2  pounds  of  powder. 
Williams  v.  Walsh,  222  U.  S.  415,  56  L. 
Ed.  253,  32  S.  Ct.  137,  affirming  order  Ex 
parte  Williams,  98  P.  777,  79  Kan.  212. 

Drainage  law; — Objections  applicable 
only  to  unimproved  property  not  avail- 
able to  owners  of  improved  property. 
— An  abutting  owner  of  property  on 
which  dwellings  have  been  erected  can 
not  deny  the  validity  of  Act  May  19, 
1896,  29  Stat.  125,  c.  206,  creating  a  drain- 
age system  in  the  District  of  Columbia, 
which  affects   only  owners  of  unimproved 


"property.  Judgment  29  App.  D.  C.  563, 
reversed.  District  of  Columbia  v.  Brooke, 
214  U.  S.  138,  53  L.  Ed.  941,  29  S.  Ct.  560. 

Validity  of  provision  for  adoption  of 
ordinance  by  direct  vote — Not  determined 
where  ordinance  not  adopted  in  that  man- 
ner.— The  constitutionality  of  an  ordi- 
nance prescribing  rates  can  not  be  at- 
tacked upon  the  ground  that,  under  the 
charter  of  the  city,  such  ordinances  are 
required,  upon  the  petition  of  fifteen  per 
cent  of  the  electors  of  the  city,  to  be 
submitted  to  the  people  for  adoption  or 
rejection,  where  the  ordinance  in  ques- 
tion was  not  adopted  in  that  manner. 
Home  Tel.,  etc.,  Co.  v.  Los  Angeles,  211  U. 
S.  265,  280,  53  L.  Ed.  176,  29  S.  Ct.  50. 

81-77a.  State  or  government  defined — 
In  the  constitutional  sense. — Coyle  v. 
Smith,  221  U.  S.  559,  55  L.  Ed.  853,  31  S. 
Ct.  688.     See  post,  STATES. 

82-83a.  Powers  possessed  by  government 
— To  maintain  social  order,  protect  life  and 
property,  etc. — Chicago  v.  Sturges,  222  U. 
S.  313,  56  L.  Ed.  215,  32  S.  Ct.  92. 

For  example,  in  the  exercise  of  this 
power,  it  is  competent  for  the  state  to  im- 
pose upon  municipal  corporations  within 
its  borders  an  absolute  liability  for  prop- 
erty destroyed  by  mob  violence.  Chicago 
V.  Sturges,  222  U.  S.  313,  56  L.  Ed.  215,  32 
S.  Ct.  92. 

91-18.  Dual  nature  of  government. — 
Coyle  V.  Smith,  221  U.  S.  559,  55  L.  Ed. 
853,  31  S.  Ct.  688. 

Federal  government  a  part  of  the  gov- 
ernment of  each  state. — Second  Employ- 
ers' Liability  Cases.  223  U.  S.  1,  56  L.  Ed. 
327,  32  S.  Ct.  169,  quoting  Clafliin  v.  House- 
man, 93  U.  S.  130,  136,  23  L.   Ed.  833. 

92-19.  United  States  not  a  foreign  sover- 
eignty— Operates  upon  states  and  people. 
—Second  Employers'  Liability  Cases,  223 
U.  S.  1.  56  L.  Ed.  327,  32  S.  Ct.  169,  quot- 
ing Claflin  V.  Houseman,  93  U.  S.  130,  136. 
23  L.  Ed.  833. 

•  93-21.  The  United  States  as  a  nation. — 
Coyle  f.  Smith.  221  U.  S.  559,  55  L.  Ed. 
853,  31  S.  Ct.  688. 


279 


97-101 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


c.  Incidents  of  Sovereignty — (3)  Power  to  Acquire,  Govern  and  Dispose  of 
Territory — (b)  Status  of  Acquired  Territory  as  Foreign  or  Domestic — (aa) 
Generally. — See  note  36. 

(c)  Government  of  Territory — (bb)  Usage  as  to  Conquered  or  Ceded  Terri- 
tory—{di^id.)  As  to  Private,  Personal,  and  Property  Rights;  Continuation  of  Ex- 
isting La^i'S. — It  is  a  general  rule  of  public  law,  recognized  and  acted  upon  by 
the  United  States,  that  whenever  political  jurisdiction  and  legislative  power  over 
any  territory  are  transferred  from  one  nation  or  sovereign  to  another,  the  mu- 
nicipal laws  of  the  country,  that  is,  laws  which  are  intended  for  the  protection 
of  private  rights,  continue  in  force  until  abrogated  or  changed  by  the  new  gov- 
ernment or  sovereign.  By  the  cession,  public  property  passes  from  one  govern- 
ment to  the  other,  but  private  property  remains  as  before,  and  with  it  those  mu- 
nicipal laws  which  are  designed  to  secure  its  peaceful  use  and  enjoyment.  As  a 
matter  of  course,  all  laws,  ordinances,  and  regulations  in  conflict  with  the  polit- 
ical character,  institutions,  and  constitution,  and  constitution  of  the  new  gov- 
ernment are  at  once  displaced.  Thus,  upon  a  cession  of  political  jurisdiction 
and  legislative  power — and  the  latter  is  involved  in  the  former — to  the  United 
States,  the  laws  of  the  country  in  support  of  an  established  religion,  or  abridg- 
ing the  freedom  of  the  press,  or  authorizing  cruel  and  unusual  punishments 
and  the  like,  would  at  once  cease  to  be  of  obligatory  force  without  any  declara- 
tion to  that  efl:'ect;  and  the  laws  of  the  country  on  other  subjects  would  neces- 
sarily be  superseded  by  existing  laws  of  the  new  government  upon  the  same 
matters.  But  with  respect  to  other  laws  afl:ecting  the  possession,  use  and  trans- 
fer of  property,  and  designed  to  secure  good  order  and  peace  in  the  community, 
and  promote  its  health  and  prosperity,  which  are  strictly  of  a  municipal  char- 
acter, the  rule  is  general  that  a  change  of  government  leaves  them  in  force  un- 
til, by  direct  action  of  the  new  government,  they  are  altered  or  repealed."***^ 


97-36.  Status  of  Porto  Rico — With 
respect  to  requisitions  for  fugitives  from 
justice. — Porto  Rico  is  a  completely  or- 
ganized territory,  although  not  a  territory 
incorporated  into  the  United  States,  and 
that  there  is  no  reason  why  Porto  Rico 
should  not  be  held  to  be  such  a  territory 
as  is  comprised  in  §  5278,  Rev.  Stats.,  re- 
lating to  requisitions  for  fugitive  criminals. 
Kopel  v.  Bingham,  211  U.  S.  468,  476,  53  L. 
Ed.  286,  29  S.  Ct.  190. 

Status  of  Philippines  within  meaning 
of  tariff  laws. — The  Philippine  Islands  are 
not  "another  country"  within  the  meaning 
of  the  provision  of  the  commercial  con- 
vention with  Cuba,  December  17,  1903, 
granting  to  the  island  of  Cuba  a  reduction 
of  20  per  cent  from  the  rates  prescribed 
by  the  tariffs  acts  of  the  United  States, 
and  providing  that  such  reduction  shall 
continue  preferential  in  respect  to  all  like 
imports  from  other  countries.  Faber  zf. 
United  States,  221  U.  S.  649,  55  L.  Ed.  897, 
31  S.  Ct.  659. 

Status  of  Alaska — Within  meaning  of 
statute  extending  interstate  commerce  act, 
etc. — The  status  of  Alaska  is  that  of  an  or- 
ganized territory.  Interstate  Commerce 
Comm.  V.  Humbolt  Steamship  Co.,  224  U. 
S.  474,  56  L.  Ed.  849,  32  S.  Ct.  556. 

Alaska  is  a  territory  of  the  United  States 
within  the  meaning  of  the  Act  of  June  29„ 
1906  (34  Stat,  at  L.  584,  ch.  35.91,  U.  S. 
Comp.  Stat.  Supp.  1909,  p.  1150),  extend- 
ing the  provisions  of  the  interstate  com- 


merce act  to  carriers  engaged  in  the  trans- 
portation of  passengers  or  property  from 
one  state  or  territory  of  the  United  States 
to  any  other  state  or  territory,  or  from  one 
place  in  a  territory  to  another  place  in  the 
same  territory.  Interstate  Commerce 
Comm.  V.  Humbolt  Steamship  Co..  224  U. 
S.  474,  56  L.  Ed.  849,  32  S.  Ct.  556. 

101-44a,  Usage  as  to  conquered  or  ceded 
territory — Public  and  private  rights  of 
property,  etc. — Continuation  of  existing 
laws.— Vilas  ?•.  Manila,  220  U.  S.  345,  55  L. 
Ed.  491,  31  S.  Ct.  416,  quoting,  with  ap- 
proval, Chicago,  etc.,  R.  Co.  v.  McGHnn, 
114  U.  S.  542,  546,  29  L.  Ed.  270,  5  S.  Ct. 
1005,  see  the  same  language  quoted  with 
approval  in  Downes  v.  Bidwell,  182  U.  S. 
244,  298,  45  L.  Ed.  1088,  21  S.  Ct.  770.  See, 
also,  post,  INTERNATIONAL  LAW. 

That  there  is  a  total  abrogation  of  the 
former  political  relations  of  the  inhabit- 
ants of  the  ceded  region  is  obvious.  That 
all  laws  theretofore  in  force  which  are  in 
conflict  with  the  political  character,  con- 
stitution, or  institutions  of  the  substituted 
sovereign,  lose  their  force,  is  also  plain. 
Sanchez  v.  United  States,  216  U.  S.  167,  54 
L.  Ed.  432.  30  S.  Ct.  367.  But  it  is  equally 
settled  in  the  same  public  law  that  that 
great  body  of  municipal  law  which  regu- 
lates private  and  domestic  rights  contin- 
ues in  force  until  abrogated  or  changed 
by  the  new  ruler.  Vilas  ?'.  Manila,  220  U., 
S.  345,  55  L.  Ed.  491,  31  S.  Ct.  416. 


280 


\^ol.  IV 


COXSTITUTIOXAL  LAW. 


103 


Private  Property  in  Public  Office  in  Ceded  Territory. — It  is  true  that  a 
treaty  negotiated  by  the  United  States  is  a  part  of  the  supreme  law  of  the  land, 
and  that  it  is  expressly  provided  in  the  treaty  by  which  Porto  Rico  and  the 
Philippines  were  acquired  that  it  "can  not  in  any  respect  impair  the  property  or 
rights  wliich  by  law  belong  to  the  peaceful  possession  of  property  of  all  kinds 
*  *  *  of  private  individuals."  But,  clearly,  those  provisions  have  no  refer- 
ence to  public  or  quasi  public  officers  and  stations,  the  functions  and  duties  of 
which  it  is  the  province  of  government  to  regulate  or  control  for  the  welfare 
of  the  people,  even  where  the  incumbents  of  such  stations  are  permitted,  while 
in  the  discharge  of  their  duties,  to  earn  and  receive  emoluments  or  fees  for  serv- 
ices rendered  by  them.  The  words  in  the  treaty,  "property  *  *  *  of  pri- 
vate individuals,"'  evidently  referred  to  ordinary  private  property,  of  present, 
ascertainable  value,  and  capable  of  being  transferred  between  man  and  man. 
It  is  inconceivable  that  the  United  States,  when  it  agreed  in  the  treaty  not  to 
impair  the  property  or  rights  of  private  individuals,  intended  to  recognize,  or 
to  feel  itself  bound  to  recognize,  the  salability  of  such  positions  in  perpetuity, 
or  to  so  restrict  its  sovereign  authority  that  it  could  not,  consistently  with  the 
treaty,  abolish  a  system  that  was  entirely  foreign  to  the  conceptions  of  the  Amer- 
ican people,  and  inconsistent  with  the  spirit  of  American  institutions.'*'^^ 

Effect  of  Cession  upon  Government  and  Property  of  Municipal  Cor- 
porations.— A  municipal  corporation  is  not  totally  dissolved  as  a  mere  con- 
sequence of  military  occupation  or  territorial  cession.'*^^  In  view  of  the  dual 
character  of  municipal  corporations  there  is  no  public  reason  for  presuming 
their  total  dissolution  as  a  mere  consequence  of  military  occupation  or  terri- 
torial cession.  The  suspension  of  such  governmental  functions  as  are  obviously 
incompatible  with  the  new  political  relations  thus  brought  about  may  be  pre- 
sumed. But  no  such  implication  may  be  reasonably  indulged  beyond  that  re- 
sult.^ec 


103-46a.  Private  property  in  public  of- 
fice in  ceded  territory. — Sanchez  v.  United 
States,  216  U.  S.  167,  54  L.  Ed.  4.32,  30  S. 
Ct.  361. 

Congress  could,  by  the  act  of  April  12, 
1900  (31  Stat,  at  L.  7~,  ch.  191),  confiscate 
without  compensation,  so  far  as  the  fed- 
eral constitution  is  concerned,  the  office  of 
solicitor  of  the  courts  of  first  instance  of 
the  capital  of  Porto  Rico,  lawfully  pur- 
chased in  perpetuity,  prior  to  the  occupa- 
tion of  Porto  Rico  by  the  military  author- 
ities of  the  United  States,  and  the  cession 
of  that  island  to  the  United  States.  San- 
chez V.  United  States,  216  U.  S.  167,  54  L. 
Ed.  432,  30  S.  Ct.  361. 

The  appellant,  an  inhabitant  and  citizen 
of  Porto  Rico,  sought  to  recover  from  the 
United  States  the  value  of  a  certain  office 
held  by  him  in  that  island  before  and  dur- 
ing the  war  with  Spain,  of  which  office,  it 
was  alleged,  he  was  illegally  deprived  by 
the  United  States.  "It  is  clear"  said  the 
court,  "that  claimant  is  not  entitled  to  be 
compensated  for  his  office  by  the  United 
States  because  of  its  exercise  of  an  author- 
ity unquestionably  possessed  by  it  as  the 
lawful  sovereign  of  the  island  and  its  in- 
habitants. The  abolition  of  the  office  was 
not,  we  think,  in  violation  of  any  provi- 
sion of  the  constitution,  nor  did  it  infringe 


any  right  of  property  which  the  claimant 
could  assert  against  the  United  States." 
Sanchez  v.  United  States,  216  U.  S.  167,  54 
L.  Ed.  432,  30  S.  Ct.  361.  See  O'Reilly  de 
Camara  v.  Brooke,  209  U.  S.  45,  49.  52  L. 
Ed.  676,  28  S.  Ct.  439. 

103-46b.  Effect  of  cession  upon  govern- 
ment and  property  of  municipal  corpora- 
tions.—Vilas  V.  Manila,  220  U.  S.  345,  55  L. 
Ed.  491,  31   S.  Ct.  416. 

103-46C.  Same.— Vilas  v.  Manila,  220  U. 
S.  345.  55  L.  Ed.  491,  31   S.  Ct.  416. 

Same — Public  property  of  municipal  cor- 
poration.— Public  property  belonging  to 
the  city  of  Manila  as  a  m.unicipal  corpora- 
tion can  not  be  regarded  as  having  passed 
to  the  United  States  under  the  cession  by 
Spain  of  the  Philippine  Islands  for  a  cash 
consideration,  under  the  treaty  of  Paris  of 
December  10,  1898,  of  all  "buildings, 
wharves,  barracks,  forts,  structures,  public 
highways,  and  other  immovable  property 
which,  in  conformity  with  law,  belong  to 
the  public  domain,  and  as  such  belong  to 
the  Crown  of  Soain,"  especially  in  view  of 
the  further  stipulation  protecting  and  sate- 
guarding  the  property  and  property  rights 
of  municipal  corporations  precisely  as 
were  those  of  individuals.  Vilas  v.  Manila, 
220  U.  S.  345,  55  L.   Ed.  491.  31    S.   Ct.  416. 


281 


107-122 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


(cc)  Power  of  Congress  to  Govern  Territory — (bbb)  Nature  and  Extent — 
(aaaa)  Generally. — Congress  Possessed  of  Plenary  Power. — Congress,  in 
the  government  of  the  territories,  as  well  as  of  the  District  of  Columbia,  has 
plenary  power,  save  as  contracted  by  the  provisions  of  the  constitution.*^!'^ 

(cccc)  Form  and  Character  of  Government  Which  Congress  May  Establish 
— (aaaaa)  Generally. — The  form  of  government  which  congress  shall  establish 
for  the  territories  is  not  prescribed,^^'^  and  need  not  be  the  same  in  all  the  ter- 
ritories.*'^'* 

(dddd)  Pozvers  of  Territorial  Governments. — Territorial  Enactments  as 
the  Exercise  of  an  Authority  under  the  United  States. ^ — The  enactment 
of  a  law  by  a  territorial  government  is  the  exercise  of  an  authority  under  the 
United  States^  within  that  provision  of  the  federal  constitution  which  declares 
the  supremacy  of  the  authority  of  the  national  government  within  the  limits 
of  the  constitution.^'^ 

Defined  and  Limited  by  Organic  Act — Prohibition  against  Granting 
Special  Privileges. — A  provision  in  an  organic  act  that  the  territorial  legis- 
lature shall  not  grant  private  charters  or  special  privileges,  but  may  enact  gen- 
eral incorporation  acts,  forbids  the  granting  of  especial  privileges  by  any  form 
of  legislative  action,  and  not  merely  the  conferring  of  such  privileges  as  a  part 
of  the  grant  of  a  forbidden  private  charter. i"''  The  assent  of  congress  to  the 
grant  of  an  especial  privilege  by  the  territorial  legislature,  contrary  to  the  ex- 
press provisions  of  the  organic  act,  can  not  be  implied  from  its  failure  to  dis- 
approve such  enactment.!!^ 

Rightful  Subjects  of  Legislation — Illustrations. — See  note  20. 


107-61a.  Congress  possessed  of  plenary 
power. — Interstate  Commerce  Comm.  v. 
Humbolt  Steamship  Co.,  224  U.  S.  474,  56 
L.   Ed.  849,  32   S.   Ct.   55G. 

108-63a.  Form  and  character  of  terri- 
torial government. — Interstate  Conmicrce 
Comm.  V.  Humbolt  Steamship  Co.,  224  U. 
S.  474,  oG  L.   Ed.  849,  32  S.  Ct.  556. 

108-66a.  Need  not  be  the  same  in  all 
the  territories. — Interstate  Commerce 
Comm.  V.  Humbolt  Steamship  Co.,  224  U. 
S.  474,  56  L.   Ed.  849,  32  S.  Ct.  556. 

121-9a.  Territorial  enactments  as  the 
exercise  of  an  authority  under  the  United 
States. — Atchison,  etc.,  R.  Co.  v.  Sowers, 
213  U.  S.  55,  53  L.  Ed.  695,  29  S.  Ct.  397. 

121-lOa.  Defined  and  limited  by  organic 
act — Prohibition  against  granting  special 
privileges. — Berryman  v.  Board,  222  U.  S. 
334,   56   L.    Ed.   225,  32   S.   Ct.   147. 

The  granting  of  especial  privileges  by 
any  form  of  legislative  action,  and  not 
merely  the  conferring  of  such  privileges 
as  a  part  of  the  grant  of  a  forbidden 
private  charter,  was  what  was  prohibited 
by  the  provision  of  the  Washington  Or- 
ganic Act  of  March  2,  1867  (14^' Stat,  at 
_L.  426,  chap.  150),  that  the  territorial  leg- 
islature should  not  grant  private  charters 
or  especial  privileges,  but  might  enact 
general  incorporation  acts.  Berryman  v. 
Board,  222  U.  S.  334,  56  L.  Ed.  225.  32  S. 
Ct.^147. 

The  generic  prohil^ition  against  the 
granting  of  especial  privileges,  made  by 
the  Washington  Organic  Act  of  March  2, 
1867,  can  not  be  construed  as  intended  to 


forbid  merely  the  creation  of  such  privi- 
leges as  a  legislative  grant  of  an  ex- 
clusive right  to  ferries,  bridges,  etc.,  even 
if  it  be  conceded  that  such  grants  were  a 
common  form  of  territorial  legislative 
abuse  prior  to  the  adoption  of  that  stat- 
ute, and  were  the  generating  cause  of  the 
insertion  of  this  prohibition.  Berryman 
V.  Board,  222  U.  S.  334,  56  L.  Ed.  225,  32 
S.    Ct.   147. 

A  territorial  statute  giving  perpetual 
succession  to  an  incorporated  educational 
institution,  and  endowing  it  with  a  per- 
petual exemption  from  taxation  as  to  all 
Its  propert}^  real  and  personal,  grants  an 
especial  privilege  within  the  meaning  of 
the  provisions  of  the  Washington  Or- 
ganic Act  of  March  2,  1867,  that  the  ter- 
ritorial legislature  shall  not  grant  private 
charters  or  especial  privileges,  but  may 
enact  general  incorporation  acts.  Berry- 
man V.  Board,  222  U.  S.  334,  56  L.  Ed. 
225,    32    S.    Ct.    147. 

121-lla.  Same — Assent  of  congress  not 
implied  from  failure  to  disapprove. — 
Berryman  v.  Board,  222  U.  S.  334,  56  L- 
Ed.  225,  32  S.  Ct.  147,  following  Clayton 
V.  Utah  Territorv,  132  U.  S.  632,  642,  33 
L.    Ed.  455.   10   S.   Ct.   190. 

122-20.  Rightful  subjects  of  legislation 
— Elements  of  actions  ex  delicto — Right 
to  supersede  common-law  doctrines. — Au- 
thority to  legislate  concerning  personal 
injuries  and  rights  of  action  therefor  was 
conferred  upon  the  territory  of  New 
Mexico  by  the  provisions  of  the  Organic 
Act  of  September  9,  1850.  extending  such 


283 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


124-130 


(eeee)  Control  of  Territorial  Government  by  Congress. — Vitality  of  Legis- 
lation Not  Dependent  upon  Approval  by  Congress. — The  effect  of  a  pro- 
vision in  an  organic  act  establishing  a  territory  that,  "All  of  the  laws  passed 
by  the  legislative  assembly  and  governor  shall  be  submitted  to  congress  of  the 
United  States,  and,  if  disapproved,  shall  be  null  and  of  no  eft'ect,"  is  merely  to 
reserve  to  congress  revisory  power  over  territorial  legislation,  and  it  does  not 
operate  to  render  laws  duly  enacted  and  within  the  legislative  power  of  the  terri- 
tory null  and  void  from  the  beginning,  upon  their  annulment  by  congress.^^^ 

(d)  Effect  of  Constitution  itpon  Ordinances  of  the  Old  Confederation. — See 
note  27. 

3.  Generally  of  the  Powers  of  the  State  and  Federal  Governments — 
a.  Pozi-ers  of  the  Federal  Government — (2)  Limited  in  Number  and  Scope. — 
See  note  43. 


authority  to  all  rightful  subjects  of  legis- 
lation consistent  with  the  constitution  of 
the  United  States,  although  such  act  also 
provides  that  the  constitution  and  all  laws 
of  the  United  States  which  are  not  lo- 
cally inapplicable  shall  have  the  same 
force  and  efifect  within  the  territory  as 
elsewhere  within  the  United  States.  Atchi- 
son, etc.,  R.  Co.  V.  Sowers,  213  U.  S.  55, 
53   L.   Ed.  695,  29  S.   Ct.   397. 

The  territory  of  New  Mexico  has  the 
right  which  each  state  has  to  pass  laws 
regulating  recovery  for  injuries  incurred 
within  the  territory.  Martin  v.  Pittsburg, 
etc.,  R.  Co.,  203  U.  S.  284,  5J  L.  Ed.  184, 
27  S.  Ct.  100.  (This  is  under  the  principle 
that  each  state  has  the  right  to  prescribe 
what  shall  constitute  actionable  wrongs 
justifiable  in  its  courts  and  among  its  in- 
habitants, and  under  the  principle  that 
there  is  no  vested  right  in  an  individual  in 
the  rules  of  law  respecting  these  subjects.) 
Atchison,  etc.,  R.  Co.  v.  Sowers,  213  U. 
S.  55.  53  L.  Ed.  695,  29  S.  Ct.  397. 

Section  7  of  the  Organic  Act  of  the 
territory  of  New  Mexico  (Comp.  L.  1897, 
p.  43)  declaring,  "That  the  legislative 
power  of  the  territory  shall  extend  to  all 
rightful  subjects  of  legislation,  consistent 
with  the  constitution  of  the  United  States 
and  the  provisions  of  this  act,"  conferred 
authority  upon  the  territory  to  legislate 
concerning  the  subject  of  personal  in- 
juries, and  to  pass  the  laws  respecting 
rights  of  action  of  that  character.  And  the 
right  to  supersede  the  common-law  doc- 
trines in  such  cases  and  to  enact  statu- 
tory rules  upon  the  subject  was  not  af- 
fected by  further  provisions  contained  in 
§  17  of  the  organic  act  to  tlie  effect  "Tha: 
the  constitution  r.nd  all  laws  of  the  United 
States  which  are  not  locally  inapplicable 
shall  have  the  same  force  and  eflfect 
within  the  said  territory  of  New  Mexico 
as  elsewhere  in  the  United  States."  Atrhi- 
scn,  etc..  R.  Co.  v.  Sowers.  213  TT.  S.  55, 
53  L.  Ed.  605,  20  S    Ct.  397. 

124-26a.  Vitality  of  acts  not  dependent 
upon  approval  of  congress. — Atchison, 
etc.,  R.   Co.  V.   Sowers.  213  U.   S.  55.  53   L. 


Ed.  695,  29  S.  Ct.  397.  See,  also.  Miners' 
Bank  v.  Iowa,  12  How.  1,  8,  13  L.  Ed.  867. 

The  annulment  b}'  congress  of  terri- 
torial legislation  confoimabl}'  to  the  pro- 
visions of  the  Organic  Act  of  September 
9,  1850  (9  Stat,  at  L.  449,  chap.  49  Comp. 
L.  1897,  §  7.  p.  43),  establishing  the  terri- 
tory of  New  Mexico,  that  all  territorial 
lav.s  shall  be  submitted  to  congress,  and, 
if  disapproved,  shall  be  null  and  or  no  ef- 
fect, does  not  relate  back,  so  as  to  render 
invalid  from  the  time  of  enactment,  terri- 
torial laws  duly  enacted  and  v,-'thin  the 
legislative  power  of  the  territory,  but  such 
laws  remain  in  force  until  congress  ex- 
erts its  authority.  .  Otherwise  rights  ac- 
quired on  the  faith  of  territorial  laws 
passed  within  the  scope  of  the  legislative 
power  of  the  territory  might  be  stricken 
dc'wn  by  the  retroactive  effect  of  an  act 
congress  annulling  such  legislatinr.  Atchi- 
son, etc.,  R.  Co.  V.  Sowers.  213  U.  S  55, 
53   L.   Ed.  695,  29   S.  Ct.  397. 

124-27.  Ordinance  1787  superseded  by 
the  constitution. — The  ordinance  1787, 
as  an  instrument  limiting  the  powers  of 
government  of  the  Northwest  territory, 
and  declaratory  of  certain  fundamental 
principles  which  must  find  place  in  the 
organic  law  of  states  to  be  carved  out  of 
that  territory,  ceased  to  be,  in  itself, 
obligatory  upon  such  states  from  and 
after  their  admission  into  the  Union  as 
states,  except  in  so  far  as  adopted  by  such 
states  and  made  a  part  of  the  law  thereof. 
This  has  been  the  view  of  this  court,  so 
often  announced  as  to  need  no  further 
argument.  Cincinnati  v.  Louisville,  etc., 
R.  Co.,  223  U.  S.  390,  56  L.  Ed.  481,  33 
S.  Ct.  267;  Pollard  v.  Hagan,  3  How.  212, 
11  L.  Ed.  565;  Permoli  v.  New  Orleans,  3 
How.  588,  11  L.  Ed.  739;  Escanaba  Co.  v. 
Chicago,  107  U.  S.  678,  688.  27  L.  Ed.  442, 
2  S.  Ct.  185.  See,  also,  post,_  "Eflfect  of 
Admission  upon  Laws  and  Ordinances  Re- 
specting the  Territories."  VI,  D,  6.  b.  (3). 

130-43.  Powers  limited  in  nurnber  and 
scope. — Second  Emnlovcrs'  Liability  Cases, 
2^3  U.  S.  1.  56  L.  Ed.  327.  32  S.  Ct.  169; 
House  V.  Mayes,  219  U.  S.  270,  55  L.  Ed. 


283 


131-141 


CO XS TI TU TIONA L  LA  I V. 


Vol.  IV. 


(3)  The  Federal  Constitution  a  Grant  of  Pozvers. — See  note  46. 
(5)  Incidental  and  I lu plied  Pozvers  of  the  Federal  Government — (a)   Gener- 
ally.— See  note  54. 

b.  Pozjuers  of  the  States — (1)  Generally. — See  note  59. 

(2)  Whence  Derived. — See  note  60. 

(3)  Applicability  of  Constitutional  Limitations  to  the  Pozvers  of  the  States — 
(b)  Limitations  Contained  in  the  First  Ten  Aincndmcnts. — See  notes  62,  63. 


213,  31  S.  Ct.  234;  Keller  v.  United  States, 
213  U.  S.  138,  53  L.  Ed.  737,  29  S.  Ct.  470; 
Atlantic,  etc.,  R.  Co.  v.  Riverside  Mills, 
219  U.  S.  186,  55  L.  Ed.  167,  31  S.  Ct.  134, 
followed  in  Louisville,  etc.,  R.  Co.  v. 
Scott,  219  U.  S.  209,  55  L.  Ed.  183,  31  S. 
Ct.  171. 

The  government  created  by  the  federal 
constitution  is  one  of  enumerated  pov^ers. 
and  can  not,  by  any  of  its  agencies,  exer- 
cise any  authority  not  granted  by  that  in- 
strument, either  in  express  words  or  by 
necessary  implication.  House  v.  Mayes, 
219  U.  S.  270,  55  L.  Ed.  213,  31  S.  Ct.  234. 

"This  government  is  acknowledged  by 
all  to  be  one  of  enumerated  powers.  The 
principle  that  it  can  exercise  only  che  pow- 
ers granted  to  it  would  seem  too  apparent 
to  have  required  to  be  enforced  by  all 
those  arguments  which  its  enlightened 
friends,  while  it  was  depending  before  the 
people,  found  it  necessarj^  to  urge.  That 
principle  is  now  universally  admitted.  But 
the  question  respecting  the  extent  of  the 
powers  actually  granted  is  perpetually 
arising,  and  will  probably  continue  to 
arise,  as  long  as  our  system  shall  exist." 
Keller  v.  United  States,  213  U.  S.  138,  53 
L.  Ed.  737,  29  S.  Ct.  470,  following  Mc- 
CuUoch  V.  Maryland,  4  Wheat.  316.  405,  4 
L.  Ed.  579. 

131-46.  The  constitution  a  grant  of 
powers. — Second  Employers'  Liability 
Cases,  223  U.  S.  1,  56  L.  Ed.  327.  32  S.  Ct. 
169;  House  v.  Mayes,  219  U.  S.  270,  55  L. 
Ed.  213,  31  S.  Ct.  234;  Keller  v.  United 
States,  213  U.  S.  138,  53  L.  Ed.  737,  29  S. 
Ct.  470;  Atlantic,  etc.,  R.  Co.  v.  Riverside 
Mills.  219  U.  S.  186,  55  L.  Ed.  167.  31  S. 
Ct.  164,  followed  in  Louisville,  etc.,  R.  Co. 
V.  Scott.  219  U.  S.  209,  55  L.  Ed.  183,  31 
S.   Ct.  171. 

Undoubtedly  the  United  States  is  a 
government  of  limited  and  delegated  pow- 
ers, but  in  respect  to  those  powers  which 
have  been  expressly  delegated,  the  power 
to  regulate  commerce  between  the  states 
being  one  of  them,  the  power  is  absolute, 
except  as  limited  by  other  provisions  of 
the  constitution  itself.  Atlantic,  etc.,  R. 
Co.  V.  Riverside  Mills,  219  U.  S.  186,  55  L. 
Ed.  167.  31  S.  Ct.  164,  followed  in  Louis- 
ville, etc.,  R.  Co.  V.  Scott,  219  U.  S.  209, 
55   L.    Ed.    183,   31    S.    Ct.   171. 

In  Houston  v.  Moore,  5  Wheat.  1,  48,  5 
L.  Ed.  19,  Mr.  Justice  Story  says:  "Nor 
ought  any  power  to  be  sought,  much  less 
to  be  adjudged,   in   favor  of    the     United 


States,  unless  it  be  clearly  within  the 
reach  of  its  constitutional  charter.  Sitting 
here,  we  are  not  at  liberty  to  add  one  jot 
of  power  to  the  national  government  be- 
yond what  the  people  have  granted  by 
the  constitution."  Keller  :■.  United  States, 
213   U.   S.  138,  53   L.   Ed.  737,  29  S.   Ct.  470. 

135-54.  Incidental  and  implied  powers. 
— A  power  may  be  implied  when  neces- 
sary to  give  effect  to  a  power  expressly 
granted.  House  v.  Mayes,  219  U.  S.  270, 
55    L.    Ed.   213,   31   S.   Ct.   234. 

137-59.  Powers  of  the  states. — While 
the  constitution  of  the  United  States  and 
the  laws  enacted  in  pursuance  thereof, 
together  with  any  treaties  made  under  the 
authority  of  the  United  States,  constitute 
the  supreme  law  of  the  land,  a  state  of  the 
union  may  exercise  all  such  governmental 
authority  as  is  consistent  with  its  own 
constitution,  and  not  in  conflict  with  the 
federal  constitution.  House  v.  Mayes, 
219  U.  S.  270.  55  L.  Ed.  213,  31  S.  Ct.  234. 

138-60.  Powers  of  the  states — Whence 
derived. — Such  a  power  in  the  state,  gen- 
erally referred  to  as  its  police  power,  is 
not  granted  by  nor  derived  from  the  fed- 
eral constitution,  but  exists  independently 
of  it,  by  reason  of  its  never  having  been 
surrendered  by  the  state  to  the  general 
government.  House  v.  Mayes,  219  U.  S. 
270.  55  L.  Ed.  213.  31   S.  Ct.  234. 

139-62.  Limitations  contained  in  the 
first  ten  amendments. — By  the  unvarying 
decisions  of  the  federal  supreme  court, 
the  first  ten  amendments  of  the  federal 
constitution  are  restrictive  only  of  na- 
tional action.  Twining  v.  New  Jersey,  211 
U.  S.  78,  92,  53  L.  Ed.  97,  29  S.  Ct.  14; 
Hunter  v.  Pittsburgh.  207  U.  S.  161,  52  L. 
Ed.  151.  28  S.  Ct.  40;  Ughbanks  v.  Arm- 
strong, 208  U.  S.  481.  52  L.  Ed.  582,  2S 
S.   Ct.   372. 

Same— Fifth 
Pittsburgh,  207 
28  S.  Ct.  40. 

Same — Sixth  and  eighth  amendments. — 
The  sixth  and  eighth  amendments  do  not 
limit  the  powers  of  the  states  as  has  been 
many  times  decided.  Ughbanks  v.  Arm- 
strong. 208  U.  S.  481,  52  L.  Ed.  582.  28  S. 
Ct.    372.   collecting   cases. 

141-63.  Effect  of  fourteenth  amendment 
as  forbidding  the  states  to  abridge  the 
rights  secured  by  the  first  ten  amend- 
ments.— The  fourteenth  amendment  did 
not  forbid  the  states  to  abridge  the  per- 
sonal   rights    enumerated    in    the    first   ten 


amendment. — Hunter       v. 
U.    S.    161,   52   L.    Ed.    151, 


284 


Vol.  IV. 


COXSTITUTIOXAL  LAW 


141-154 


(c)  Limitations  Contained  in  the  War  Amendments. — See  note  65. 

c.  Division  of  Powers  betzveen  the  Federal  and  State  Governments — (3)  Ex- 
clusive Pozcers  of  Federal  Government — (b)  Jurisdiction  in  the  District  of  Co- 
lumbia and  Places  under  Exclusive  Federal  Control. — See  note  98. 

(c)  Exclusive  Control  and  Disposition  of  Property. — As  to  Public  Lands 
within  the  States. — See  note  10. 


amendments,  because  those  rights  are  not 
within  the  meaning  of  the  clause  "privi- 
leges and  immunities  of  citizens  of  the 
United  States."  Twining  v.  New  JerseJ^ 
211  U.  S.  78,  53  L.  Ed.  97,  29  S.  Ct.  14. 

It  is  possible  that  some  of  the  personal 
rights  safeguarded  by  the  first  eight 
amendments  against  national  action-  may 
also  be  safeguarded  against  state  action, 
because  a  denial  of  them  would  be  a  de- 
nial of  due  process  of  law.  Chicago,  etc., 
R.  Co.  V.  Chicago,  166  U.  S.  226.  41  L.  Ed. 
1)79.  If  this  is  so.  it  is  not  because  those 
rights  are  enumerated  in  the  first  eight 
amendments,  but  because  thej'  are  of 
such  a  nature  that  they  are  included  in 
the  conception  of  due  process  of  law. 
Twining  v.  New  Jersev.  211  U.  S.  78,  99. 
53  L.  Ed.  97,  29  S.  Ct.  14. 

141-65.  Limitations  contained  in  the 
war  amendments. — The  fourteenth  amend- 
ment withdrew  from  the  states  powers 
theretofore  enjoyed  b}^  them  to  an  extent 
not  yet  fully  ascertained,  or  rather,  to 
speak  more  accurately,  limited  those  pow- 
ers and  restrained  their  exercise.  Twining 
V.  New  Jersey,  211  U.  S.  78.  53  L.  Ed.  97. 
29  S.  Ct.  14. 

The  fourteenth  amendment  was  not  in- 
tended to,  and  does  not.  limit  the  powers 
of  a  state  in  dealing  with  crime  committed 
within  its  borders,  nor  with  the  punish- 
ment thereof,  although  no  state  can  de- 
prive particular  persons  nor  classes  of 
persons  of  equal  and  impartial  justice  un- 
der the  la\v.  Ughbanks  v.  .\rmstrGng.  20S 
TJ.   S.  481.  487.  52   L.   Ed.  582.  28  S.  Ct.  372. 

151-98.  Jurisdiction  in  places  under  ex- 
clusive federal  control — Norfolk  navy 
yard. — The  exclusive  legislative  power 
which  congress  possesses  over  the  Nor- 
folk navy  yard  excludes  the  giving  of  any 
operation  or  effect,  within  the  limits  of 
such  navy  yard,  to  the  provisions  of  Va. 
Code  1904,  pp.  696,  697.  imposing  a  penalty 
^jpon  telegraph  companies  for  failure  to 
deliver  a  message  to  the  addressee.  West- 
ern Union  Tel.  Co.  i:  Chiles.  214  U.  S. 
■274,  53   L.   Ed.   994,   29    S.   Ct.   613. 

"The  Norfolk  navy  yard  is  one  of  the 
places  where  congress  possesses  exclusive 
legislative  power.  It  follows  that  the 
laws  of  the  state  of  Virginia,  with  the  ex- 
ception referred  to  in  the  acts  of  as- 
sembly, can  not  be  allowed  any  opera- 
tion or  effect  within  the  limits  of  the 
yard.  The  exclusive  power  of  legisla- 
tion necessarily  includes  the  exclusive  ju- 


risdiction. The  subject  is  so  fully  dis- 
cussed by  ^Ir.  Justice  Field,  delivering 
the  opinion  of  the  court  in  Ft.  Leaven- 
worth R.  Co.  V.  Lowe,  114  U.  S.  525,  29 
L.  Ed.  264,  5  S.  Ct  995,  that  we  need  do 
no  more  than  refer  to  that  case  and  the 
cases  cited  in  the  opinion.  It  is  of  the 
highest  public  importance  that  the  juris- 
diction of  the  state  should  be  resisted  at 
the  borders  of  those  places  where  the 
power  of  exclusive  legislation  is  vested  in 
the  congress  by  the  constitution.  Con- 
gress already,  with  the  design  that  the 
places  under  the  exclusive  jurisdiction  of 
the  United  States  shall  not  be  freed  from 
the  restraints  of  the  law,  has  enacted  for 
them  (Revised  Statutes,  title  70,  chapter 
3,  U.  S.  Comp.  Stat.  1901,  p.  3625)  an  ex- 
tensive criminal  code,  ending  with  the 
provision  (§  5391,  U.  S.  Comp.  Stat.  1901, 
p.  3651)  that  where  an  oflfense  is  not 
specially  provided  for  by  any  law  of  the 
United  States,  it  shall  be  prosecuted  in 
the  courts  of  the  United  States,  and  re- 
ceive the  same  punishment  prescribed  bj' 
the  laws  of  the  state  in  which  the  place  is 
situa^ted  for  like  offenses  committed  within 
its  jurisdiction.  We  do  not  mean  to  sug- 
gest that  the  statute  before  us  creates  a 
crime  in  the  technical  sense.  If  it  is  de- 
sirable that  penalties  should  be  inflicted 
for  a  default  in  the  delivery  of  a  telegram 
occurring  within  the  jurisdiction  of  the 
United  States,  congress  onh-  has  the 
power  to  establish  them."  Western 
Union  Tel.  Co.  v.  Chiles.  214  U.  S.  274. 
53   L.   Ed.   994,  29   S.   Ct.   613. 

154-10.  Scope  of  §  3,  art.  4. — The  con- 
stitution declares.  §  3,  art.  4,  that  "con- 
gress shall  have  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  re- 
specting the  territory-  or  the  property  be- 
longing to  the  United  States."  "The  full 
scooe  of  this  paragraph  has  never  been 
definitely  settled.  Primarily,  at  least,  it 
is  a  grant  of  power  to  the  United  States 
of  control  over  its  property."  Li.ght  r. 
United  States.  220  U.  S.  523,  55  L.  Ed.  570, 
31  S.  Ct.  485:  Kansas  f.  Colorado,  206  U. 
S.  46.  51  L.  Ed.  956.  27  S.  Ct.  655. 

Power  to  establish  public  forest  reserve. 
— Congress,  in  the  exercise  of  its  control 
of  the  property  of  the  United  States,  un- 
der U.  S.  Const,  art.  4,  §  3.  could  consti- 
tutionally enact  the  act  of  March  3,  1891 
(26  Stat,  at  L.  1103,  chap.  561,  U.  8. 
Comp.  Stat.  1901.  p.  1537).  under  which 
public  forest  reservations  may  be  estab- 
lished  on  the  public  domain   without  the 


285 


159-160 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


(4)  Exclusive  Pozvers  of  the  States — (b)  Local  Mwiicipal  Jurisdiction, 
Sovereignty  and  Eminent  Domain. — Soil  under  or  Adjacent  to  Navigable 
or  Public  Waters.— vSee  note  28. 

Same — Law  Governing  Rights  of  Riparian  Owners. — See  note  32. 


consent  of  the  state  where  the  land  lies. 
Light  V.  United  States,  220  U.  S.  523,  55 
L.  Ed.  570,  .31  S.  Ct.  485.  See  post,  PUB- 
LIC  LANDS. 

159-28.  Soil  under  or  adjacent  to  navi- 
gable waters. — "The  principle  has  long  been 
settled  in  this  court  that  each  state  owns 
the  beds  of  all  tide  waters  within  its  ju- 
risdiction, unless  they  have  been  granted 
away."  The  Abbey  Dodge,  223  U.  S.  166. 
56  L.  Ed.  390,  32  S.  Ct.  310,  citing  Pollard 
V.  Hagan,  3  How.  212,  11  L.  Ed.  565; 
Smith  V.  Maryland,  18  How.  71,  74,  15  L. 
Ed.  269;  Mumford  v.  Wardwell,  6  Wall. 
423,  436,  18  L.  Ed.  756;  Weber  v.  Board, 
18  Wall.  57,  21  L.  Ed.  798.  See  post, 
NAVIGABLE  WATERS. 

In  like  manner  the  states  own  the  tide 
waters  themselves,  and  the  fish  in  them, 
so  far  as  they  are  capable  of  ownership 
while  running.  For  this  purpose  the  state 
represents  its  people,  and  the  ownership 
is  that  of  the  people  in  their  united 
sovereignty.  Martin  v.  Waddell,  16  Pet. 
367,  410,  10  L.  Ed.  997.  The  right  which 
the  people  of  the  state  thus  acquire  comes 
not  from  their  citizenship  alone,  but  from 
their  citizenship  and  property  combined. 
It  is,  in  fact,  a  property  right,  and  not  a 
mere  privilege  or  immunity  of  citizenship. 
The  Abbey  Dodge,  223  U.  S.  166,  56  L.  Ed. 
390,  32   S.   Ct.  310. 

State  control  of  fisheries,  oyster  beds, 
sponge  fishing,  etc. — The  power  of  the 
state  to  regulate  the  oyster  industry,  al- 
though the  same  is  carried  on  under  tidal 
waters  within  the  state,  can  not  be  suc- 
cessfully contested.  Lee  v.  New  Jersey, 
207  U.  S.  67,  69,  52  L.  Ed.  106,  28  S.  Ct. 
22,  citing  Smith  v.  Maryland,  18  How.  71, 
15  L.  Ed.  269;  McCready  v.  Virginia,  94 
U.  S.  391,  24  L.  Ed.  248;  Manchester  v. 
Massachusetts,  139  U.  S.  240,  35  L-  Ed. 
159.    See  post,  FISH  AND  FISHERIES. 

Rights  under  the  fourteenth  amendment 
of  the  federal  constitution  are  not  in- 
fringed by  the  provision  of  Act  of  N.  J., 
March  24,  1899,  p.  514,  §  20,  as  amended 
by  Act  March  22,  1901,  p.  317,  under  which 
a  conviction  may  be  had  for  using  a 
dredge  in  tidal  waters  of  the  state  for  the 
purpose  of  catching  oysters  upon  leased 
lands  without  the  consent  of  the  lessees. 
Judgment,  State  v.  Lee  (1905),  59  Atl. 
Ills,  afifirmed  in  Lee  v.  New  Jersey,  207 
U.   S.  67,  52  L.   Ed.   106,  28  S.   Ct.  22. 

The  taking  or  gathering  of  sponges 
from  land  under  water  within  state  terri- 
torial limits  is  not  subject  to  congressional 
control.  The  Abbey  Dodge,  223  U.  S.  166, 
56  L.   Ed.  390,  32   S.   Ct.  310. 

But    under    its    power    to    regulate    for- 


eign and  interstate  commerce,  and,  as  in- 
cident thereto,  to  forbid  merchandise  car- 
ried in  such  coinmerce  from  entering  the 
United  States,  congress  may  validly  pro- 
hibit, as  it  did  by  the  Act  of  June  20,  1906, 
the  landing  at  any  port  or  place  in  the 
United  States  of  sponges  taken  during 
certain  seasons  outside  of  state  territorial 
waters.  The  Abbey  Dodge,  223  U.  S 
166,  56  L.   Ed.  390,  32   S.   Ct.  310. 

160-32.  Rights  of  riparian  owners — By 
what  law  governed. — ^The  rights  of  ri- 
parian owners  upon  navigable  streams  in 
this  country  are  governed  by  the  law  of 
the  state  in  which  the  stream  is  situated. 
Weems  Steamboat  Co.  v.  People  Steam- 
boat Co.,  214  U.  S.  345,  53  L.  Ed.  1024,  29 
S.   Ct.  661. 

But  while  as  between  the  state  and  in- 
dividual riparian  proprietors,  tb.e  limits  of 
proprietorship,  as  extending  to  high  water 
or  low  water  marks,  etc.,  is  determined  by 
the  state  law,  yet  with  respect  to  public 
navigable  waters  constituting  iiighways  of 
interstate  and  foreign  commerce,  this 
power  of  the  state,  and  the  rights  of  in- 
dividuals acquired  under  state  laws  and 
regulations,  are  subject  to  the  paramount 
control  of  congress  and  ;ts  right  to  im- 
prove and  secure  the  uninterrupted  navi- 
gability of  all  public  navigable  streams 
within  the  limits  of  the  United  States. 
Philadelphia  Co.  v.  Stimson,  223  U.  S.  605, 
56  L.  Ed.  570,  32  S.  Ct.  340;  Weems  Steam- 
boat Co.  V.  Peoples  Steamboat  Co.,  214 
U.   S.  345,  53   L.   Ed.  1024,  29  S.   Ct.  661. 

It  is  not  within  the  power  of  a  ftate, 
therefore,  as  against  this  supreme  power 
of  congress,  to  establish  a  highwater  line 
and  vest  a  right  of  property  in  the  riparian 
owners  out  to  this  line,  as  a  fixed  and 
permanent  limit  of  their  property,  without 
regard  to  subsequent  shiftings,  variations 
and  encroachments  of  such  line  caused  by 
natural  forces.  The  jurisdiction  of  con- 
gress follov/s  the  stream,  and  attaches  to 
it  in  its  actual  location  at  the  time  congress 
undertakes  to  deal  with  it.  Hence,  if  at  the 
time  congress  undertakes  to  deal  with  the 
stream,  the  waters  thereof  have  en- 
croached up  the  land  of  a  riparian  pro- 
prietor, and  the  actual  highwater  line  has 
moved  landward  over-  his  land,  so  that  it 
no  longer  coincides  with  the  statutory  line 
fixed  by  the  state,  it  is  competent  for  con- 
gress, in  establishing  harbor  lines  or  de- 
fining the  navigable  channel,  to  establish 
such  lines  coincident  with  the  then  actual 
and  existing  highwater  line,  and  prevent 
the  riparian  proprietor  from  wharfing  out, 
filling  in,  or  otherwise  reclaiming  or  exer- 
cising dominion   out  to  the  former  statu- 


286 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


161-163 


Same — Limitations  of  Rule. — See  note  33. 

Right  of  State  to  Frame  Its  System  of  Laws— Subdivision  of  Territory 
for  Municipal  Purposes. — See  notes  39,  40. 

(c)  Persons  and  Property  zvithin  State  Limits — (bb)  To  Define  Property,  Pre- 
scribe the  Tenures  Therein,  and  Regulate  Its  Descent,  Distribution  and  Trans- 
fer.— See  note  46. 


lory  line  established  by  the  state  and 
fixed  by  it  as  the  perpetual  boundary  of 
his  land  and  limit  of  his  proprietorship  as 
a  riparian  owner;  and  in  so  doing,  con- 
gress does  not  deprive  him  of  his  prop- 
erty without  compensation,  and  therefore 
without  due  process  of  law,  since,  as 
against  the  paramount  right  of  the  United 
States  over  interstate  commerce  and  pub- 
lic navigable  interstate  streams,  it  was 
not  competent  for  the  state  to  confer  any 
such  property  right  upon  him.  Phila- 
delphia Co.  V.  Stirnson,  223  U.  S.  005,  56 
L.   Ed.   570,  32  S.   Ct.  340. 

161-33.  Same — Limitations  of  rule. — 
The  rights  thus  held  to  exist  in  the  states 
are  "subject  to  the  paramount  right  of 
navigation,  the  regulation  of  vvhich,  in 
respect  to  foreign  and  interstate  com- 
merce, has  been  granted  to  the  United 
States.  The  Abbey  Dodge,  223  U.  S.  166, 
56  L.  Ed.  390,  32  S.  C.  310.  See,  also, 
ante,  paragraphs  under  footnote  32. 

162-39.  Same — Power  to  make  municipal 
subdivisions  and  govern  same. — Citizens 
and  taxpayers  of  a  lesser  municipality  an- 
nexed under  the  authority  of  Act  Pa. 
Feb.  7,  1906,  §§  1-9  (P.  L.  7-11)  to  an  ad- 
joining and  large  municipality,  are  not 
deprived  of  their  property  without  due 
process  of  law  by  reason  of  the  burden  of 
additional  taxation  resulting  from  the  con- 
solidation, although  the  method  of  voting 
prescribed  by  the  statute  has  permitted 
the  voters  of  the  larger  city  to  overpower 
the  voters  of  the  smaller  one,  and  compel 
the  union  without  their  consent  and 
against  their  protest.  Judgment,  In  re 
City  of  Pittsburg,  66  A.  348,  217  Pa.  227, 
affirmed.  Hunter  v.  Pittsburgh,  207  U.  S. 
161,  52  L.  Ed.  151,  28  S.  Ct.  40. 

Act  of  Feb.  7,  1906  (P.  L.  7),  authoriz- 
ing contiguous  cities  to  consolidate,  is 
not  contrary  to  the  federal  constitution, 
as  not  due  process  of  law,  in  that  it  au- 
thorizes the  electors  of  the  consolidated 
territory  to  determine  the  question  of  the 
annexation  of  a  smaller  city  to  a  larger 
one,  instead  of  leaving  the  matter  to  the 
electors  of  the  smaller  city  to  decide.  (U. 
S.  Sup.  Pa.  1907),  In  re  City  of  Pittburg, 
66  A.  348,  217  Pa.  227;  Appeal  of  Hunter, 
Id.,  judgment  affirmed  in  Hunter  z>.  Pitts- 
burgh, 207  U.  S.  161,  52  L.  Ed.  151,  28  S. 
Ct.  40  (Pa.  Super.  Ct.  1906),  In  re  City 
of  Pittsburgh.  32  Pa.   Super.   Ct.  210. 

Same — Location  or  change  of  seat  of 
government. — The  power  to  locate  its 
own  seat  of  government,  and  to  determine 


when  and  how  it  shall  be  changed  from 
one  place  to  another,  and  to  appropriate 
its  own  public  funds  for  that  purpose,  are 
essentially  and  peculiarly  state  powers. 
Coyle  V.  Smith,  221  U.  S.  559,  55  L.  Ed. 
853,   31    S.    Ct.   688. 

162-40.  Same— Effect  of  fourteenth 
amendment. — The  fourteenth  amendment 
does  not  deprive  a  state  of  the  power  to 
determine  what  duties  may  be  performed 
by  local  officers,  nor  whether  they  shall 
be  appointed,  or  elected  by  the  people. 
Soliah  V.  Heskin,  222  U.  S.  522,  56  L.  Ed. 
294,  32  S.  Ct.  103;  Dreyer  v.  Illinois,  187 
U.  S.  71,  83,  47  L.  Ed.  79,  23  S.  Ct.  28; 
Prentis  v.  Atlantic  Coast  Line  Co.,  211  U. 
S.  210,  53  L.  Ed.  150,  29  S.  Ct.  67;  County 
of  Mobile  v.  Kimball,  102  U.  S.  691,  706, 
26  L.  Ed.  238;  Fallbrook  Irrig.  Dist.  v. 
Bradley,  164  U.  S.  112,  167,  41  L.  Ed.  369, 
17   S.   Ct.  56. 

Nor  does  that  amendment  deprive  a 
state  of  the  power  to  compel  a  tovvTiship, 
as  one  of  its  political  subdivisions,  to  levy 
and  collect  taxes  for  the  purpose  of  pay- 
ing the  amount  assessed  against  such 
township  for  the  public  benefits  accruing 
for  the  construction  of  a  drain.  Soliah  v. 
Heskin,  222  U.  S.  522,  56  L.  Ed.  294,  32 
S.  Ct.  103;  Bauman  v.  Ross,  107  U.  S.  548, 
42  L.  Ed.  270,  17  S.  Ct.  966;  County  of 
Mobile  V.  Kimball,  102  U.  S^  691.  704,  26 
L.   Ed.  238. 

163-46.  Legal  incidents  of  estates  in 
real  property — Liability  for  taxes  as  be- 
tween particular  estate  and  remainder  or 
reversionary  interest. — The  legal  incidents 
of  estates  in  real  property,  as,  for  ex- 
ample, whether  the  taxes  upon  property 
are  to  be  paid  by  the  tenant  of  the  par- 
ticular estate  or  by  the  owner  of  the  re- 
version, is  a  question  to  be  determined  by 
the  state.  Perry  Co.  v.  Norfolk,  220  U. 
S.  472,  55  L.   Ed.  548,  31   S.  Ct.  465. 

Therefore,  the  decision  of  the  state 
court  that  the  general  rule  making  the 
landlord  responsible  for  the  taxes  has  no 
application  to  the  case  of  a  perpetual 
leaseholder  where  the  tenant  is,  in  efifect,' 
the  virtual  owner  of  the  property  and  en- 
titled to  its  use  forever,  presents  no  fed- 
eral question  which  can  be  reviewed  by 
the  federal  supreme  court  upon  writ  of 
error.  Perry  Co.  v.  Norfolk,  220  U.  S. 
472,  55  L.   Ed.  548,  31   S.  Ct.  465. 

It  is  otherwise,  of  course,  where  the 
leaseholder  in  such  a  case  claims  a  con- 
tract exemption  as  to  certain  taxes,  and 
alleges   that    the    obligation    of   such    con- 


287 


164-170 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


Transfer  of  Property — Descent  and  Distribution,  Right  to  Devise  or 
Inherit,  Interest  or  Estate  Acquired  by  Heirs,  Devisees,  etc. — See  note  48. 

( e)  State  Courts;  Their  Constitution,  Jurisdiction  and  Procedure. — See  notes 
64,  65. 

Rules  of  Evidence. — See  note  69. 


tract  is  impaired  by  attempting  to  sub- 
ject the  property  to  taxation  in  violation 
of  such  contract.  Perry  Co.  v.  Norfolk, 
220  U.   S.  472,  55  L.   Ed.  548,  31    S.   Ct.  465. 

164-48.  Descent  and  distribution — Right 
to  devise  or  inherit — Interest  or  estate  ac- 
quired by  heirs,  devisees,  etc. — Whatever 
title  heirs  may  take  upon  the  death  of 
their  ancestor,  they  take  by  virtue  of  the 
state  law,  and  it  is  for  tne  courts  of  the 
state  to  interpret  that  law  and  define  that 
title.  It  is  for  the  courts  of  the  state  to 
say  whether  the  state  law  has  cast  upon 
them  such  a  title  to  mortgaged  property 
as  to  require  that  they  should  be  made 
parties  to  a  foreclosure  proceeding  against 
the  personal  representative  and  be  given 
notice  and  opportunity  to  be  heard,  and 
the  decision  of  the  state  court  that  they 
acquired  no  such  title  or  estate  will  not 
be  reviewed  by  the  federal  supreme  court. 
McCaughey  v.  Lyall,  224  U.  S.  558,  56  L. 
Ed.   883,   32   S.    Ct.    602. 

Construing  Cal.  Code,  Civ.  Proc,  §1582, 
to  mean  that  the  heirs  are  not  necessary 
parties  to  a  suit  against  the  administratrix 
to  foreclose  a  mortgage  executed  by  the 
decedent,  does  not  deprive  such  heirs, 
without  due  process  of  law,  of  the  title 
which  Cal.  Civ.  Code,  §  1384,  casts  upon 
them  upon  the  death  of  their  ancestor. 
McCaughey  v.  Lyall,  224  U.  S.  558,  56  L. 
Ed.  883,  32  S.  Ct.  602. 

The  nature  and  character  of  the  interest 
of  a  surviving  wife  in  community  property 
for  the  purpose  of  taxation  is  peculiarly 
a  local  question  to  be  decided  by  the  state 
courts.  There  is  no  merit,  therefore,  in  a 
contention  that  an  inheritance  tax  upon 
such  an  interest  is  illegal,  and  that  the 
surviving  wife  is  denied  equal  protection 
■of  the  laws  upon  the  theory  that  her 
share  in  the  community  property  was  an 
interest  which  became  vested  during  the 
life  of  the  husband,  and  could  not,  on  the 
death  of  the  husband,  be  taxed  differently 
from  other  property,  that  is  to  say,  other 
than  according  to  value,  without  violating 
the  state  constitution  and  creating  an  in- 
equality repugnant  to  the  constitution  of 
the  United  States.  Moffitt  v.  Kelly,  218 
U.   S.   400,   54   L.    Ed.    1086,   31    S.   Ct.   79. 

167-64.  Constitution,  jurisdiction  and 
procedure  of  state  courts. — Each  state 
may,  subject  to  the  restrictions  of  the  fed- 
eral constitution,  determine  the  limits  of 
the  jurisdiction  of  its  courts,  the  character 
of  the  controversies  which  shall  be  heard 
in  them,  and,  specif^call3^  how  far  it  will, 
having  jurisdiction   of   the   parties,   enter- 


tain in  its  courts  transitory  actions, 
where  the  cause  of  action  has  arisen  out- 
side its  borders.  Atchison,  etc.,  R.  Co.  v. 
Sowers,  213  U.  S.  55,  53  L.  Ed.  695,  29  S. 
Ct.  397.  See,  also,  St.  Louis,  etc.,  R.  Co. 
c.  Taylor,  210  U.  S.  281,  285,  52  L.  Ed. 
1061,  28  S.  Ct.  616. 

168-65.  Remedies  and  procedure  in  state 
courts. — The  practice  of  the  state  courts 
m  acting  upon  matters  within  their  juris- 
diction IS  left  for  the  states  and  their 
courts  administering  their  laws  to  de- 
termine. Waters-Pierce  Oil  Co.  v.  Texas, 
No.  2,  212  U.  S.  112,  118,  53  L.  Ed.  431,  29 
S.    Ct.   227. 

For  example,  if  in  the  appointment  of 
a  receiver  the  court  saw  fit  to  act  upon 
the  testimony  already  heard  and  a  con- 
viction already  had  for  the  violation  of 
the  anti-trust  laws  of  the  state,  there  is 
nothing  in  the  federal  constitution  which 
.prevents  it  from  so  doing.  Nor  does  the 
time  or  manner  in  which  the  state  court 
saw  fit  to  approve  the  receivers  bond 
present  any  question  under  the  fourteenth 
amendment.  Waters-Pierce  Oil  Co.  v. 
Texas,  No.  2,  212  U.  S.  112,  118,  53  L.  Ed. 
431,  29  S.  Ct.  227.  See,  also,  the  cases 
cited  in  Waters-Pierce  Oil  Co.  v.  Texas, 
No.  1,  212  U.  S.  86,  53  L.  Ed.  417,  29  S. 
Ct.   220. 

The  limit  of  the  full  control  which  the 
state  has  of  a  proceeding  in  its  courts 
both  in  civil  and  criminal  cases,  is  sub- 
ject only  to  the  qualification  that  such 
procedure  must  not  work  a  denial  of  fun- 
damental rights,  nor  conflict  with  specific 
and  applicable  provisions  of  the  federal 
constitution.  Waters-Pierce  Oil  Co.  v. 
Texas,  No.  1,  212  U.  S.  86,  107,  53  L.  Ed. 
417,  29  S.  Ct.  220;  Twining  v.  New  Jersey, 
211  U.  S.  78,  53  L.  Ed.  97,  29  S.  Ct.  14. 

170-69.  Rules  of  evidence. — Each  state 
possesses  the  general  power  to  prescribe 
the  evidence  which  shall  be  received  in  the 
courts  of  that  state  and  the  ef¥ect  which 
shall  be  given  to  it  in  those  courts.  Linds- 
ley  V.  Natural  Carbonic  Gas  Co.,  220  U. 
S.  61,  55  L.  Ed.  369,  31  S.  Ct.  337;  Bailey 
V.  Alabama,  219  U.  S.  219,  55  L.  Ed.  191, 
31  S.  Ct.  145;  Reitler  n.  Harris,  223  U.  S. 
437,  56  L.  Ed.  497,  32  S.  Ct.  248;  Mobile, 
etc.,  R.  Co.  V.  Turnipseed,  219  U.  S.  35. 
55    L.    Ed.   78,    31    S.    Ct.    136. 

Same — Prima  facie  presumptions. — As 
to  the  power  of  the  state  to  create  prima 
facie  presumptions,  and  the  rules  and 
limitations  with  respect  thereto,  see  post, 
"Laws  Afifecting  the  Rules  of  Evidence," 
VIII,  C,  13,  f. 


288 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


170-172 


(f)  To  Define  and  Punish  Cnm^.— Excluding  Elements  of  Knowledge, 
Intent  and  Negligence. — It  is  competent  for  the  legislature  to  declare  an  of- 
fense and  to  exclude  the  elements  of  knowledge  and  due  diligence  from  any  in- 
quiry as  to  its  commission.'^  ^'^ 

Acts  Which  "Tend"  to  Prohibit  Result.— See  note  70b. 

Fixing  the  Amount  of  Fines. — Fixing  the  amount  of  fines  for  the  violation 
of  state  legislation  is  within  the  police  power  of  the  state,  subject  only  to  the 
limitation  that  such  fines  must  not  be  so  grossly  excessive  as  to  amount  to  a  dep- 
rivation of  property  without  due  process  of  law.'^*"^ 

Power  of  Congress  to  Suppress  Crime  and  Immorality  under  Interstate 
Commerce  Clause. — The  keeping  of  a  house  of  ill  fame  within  state  limits  is 
an  offense  against  the  state,  and  it  rests  with  the  state,  in  the  exercise  of  its  re- 
served police  powers,  to  define  and  punish  such  offense.''"^ 

(g)  Actions  for  Injuries  to  Person  or  Property. — See  note  78. 


170-70a.  Excluding  elements  of  knowl- 
edge, intent  and  negligence. — Chicago,  etc., 
R.  Co.  V.  United  States,  220  U.  S.  559,  55 
L.  Ed.  582,  31  S.  Ct.  612,  following  St. 
Louis,  etc.,  R.  Co.  v.  Taylor,  210  U.  S.  281, 
52   L.   Ed.   1061,  28   S.   Ct.   616. 

170-70b.  Acts  which  "tend"  to  prohibit 
result. — Due  process  of  law  is  not  denied 
a  corporation  convicted  of  violating  the 
Texas  anti-trust  laws  of  May  25,  1899,  and 
March  31,  1903,  because  the  legislation 
permits  and  the  trial  court  charges  that 
there  may  be  conviction  not  only  for  acts 
which  accomplished  the  prohibited  result, 
but  also  for  those  which  "tend,"  or  which 
are  reasonably  calculated  to  bring  about 
such  result.  Waters-Pierce  Oil  Co.  v. 
Texas,  No.  1,  212  U.  S.  86,  53  L.  Ed.  417, 
29   S.   Ct.  220. 

170-70C.  Fixing  the  amount  of  fines. — 
Waters-Pierce  Oil  Co.  v.  Texas,  No.  1, 
212  U.  S.  86,  53  L.  Ed.  417,  29  S.  Ct.  220. 

Penalties  imposed  by  the  jury  and  con- 
firmed by  the  state  courts  at  the  rate  of 
$1,500  and  $50  per  day  for  violating,  re- 
spectively, through  a  series  of  years,  the 
Texas  anti-trust  laws  of  May  25,  1899 
(Laws,  1899,  p.  246,  c.  146),  and  of  March 
31,  1903  (Laws  1903,  p.  119,  c.  94),  are  not 
so  excessive  as  to  deprive  the  defendant 
corporation  of  its  property  without  due 
process  of  law,  where  such  property 
amounts  to  more  than  $40,000,000,  and  its 
dividends  have  been  as  high  as  700  per 
cent  per  annum.  Waters-Pierce  Oil  Co. 
V.  Texas,  No.  1.  212  U.  S.  86,  53  L.  Ed. 
417,  29  S.  Ct.  220,  affirmed  (Civ.  App.), 
106   S.   W.   918. 

171-77a.  Power  to  suppress  crime  and 
immorality  under  interstate  commerce 
clause. — Hence,  congress  had  no  power 
under  the  interstate  commerce  clause,  to 
enact  the  provisions  of  the  Act  of  Febru- 
ary 20.  1907  (34  Stat,  at  L.  ^98,  chap.  1134, 
§  3),  for  the  criminal  punishment  of  the 
mere  keeping,  maintaining,  supporting  or 
harboring,  for  the  purpose  of  prostitution, 
any  alien  woman  within  three  years  after 


she  shall  have  entered  the  United  States. 
Keller  v.  United  States,  213  U.  S.  138,  53 
L.   Ed.  737,  29  S.   Ct.  470. 

172-78.  Action  for  injuries  to  persons 
and  property. — Each  state  may,  subject  to 
restrictions  of  the  federal  constitution,  de- 
termine the  limits  of  the  jurisdiction  of  its 
courts,  the  character  of  the  controversies 
which  shall  be  heard  by  them,  and,  specif- 
ically, how  far  it  will,  having  jurisdiction 
of  the  parties,  entertain  in  its  courts 
transitory  actions,  where  the  cause  of  ac- 
tion has  arisen  outside  its  borders.  St. 
Louis,  etc.,  R.  Co.  v.  Taylor,  210  U.  S. 
281,  285,  52  L.  Ed.  1061,  28  S.  Ct.  616; 
Atchison,  etc.,  R.  Co.  v.  Sowers,  213  U.  S. 
55,    53    L.    Ed.   695,    29    S.    Ct.   397. 

It  also  rests  with  the  states  to  declare 
what  shall  constitute  actionable  wrongs 
to  person  or  property,  that  is,  to  define 
the  elements  necessary  to  sustain  the  ac- 
tion and  the  matters  admissible  in  defense. 
Thus  it  is  a  general  principal  of  law  that 
there  is  no  individual  liability  for  an  act 
which  ordinary  human  care  and  foresight 
could  not  guard  against.  It  is  also  a  gen- 
eral principle  of  the  same  law  that  a  loss 
from  any  cause  purely  accidental  must 
rest  where  it  chances  to  fall.  But  behind 
and  above  these  general  principles  which 
the  law  recognizes  as  ordinarily  prevail- 
ing, there  lies  the  legislative  power,  which, 
in  the  absence  of  organic  restraint  may, 
for  the  general  welfare  of  society,  impose 
obligations  and  responsible  otherwise  non- 
existent. Chicago  V.  Sturges,  222  U.  S. 
313,  56  L.  Ed.  215,  32  S.   Ct.  92. 

Imposing  liability  for  property  de- 
stroyed by  mob  violence. — Thus,  it  is  com- 
petent for  the  state,  under  its  police 
power,  to  create  a  right  of  action  against 
its  municipal  subdivisions  in  favor  of  the 
owners  of  property  destroyed  by  mob 
violence,  and  it  m.ay  make  such  liability 
absolute.  Chicago  v.  Sturges,  222  U.  S. 
313,    56   L.    Ed.    215.   32    S.    Ct.   92. 

Abolishing  fellow  servant  rule. — So  it  is 
competent    for    the    state    to    abolish    the 


12   U   S    Enc— 19 


289 


174-178 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


(5)  Concurrent  Powers  of  State  and  Federal  Goz'ernuients — (b)  As  to  Sub- 
ject Matter — (aa)  General  Principles. — It  not  infrequently  happens  that  the 
same  act  may  be  referable  to  the  power  of  the  state,  as  well  as  to  that  of  con- 
gress; and  if  there  be  collision  in  such  a  case,  the  superior  authority  of  congress 
prevails.^"" 

Exclusive  Intervention  Supersedes  State  Enactments. — It  is  well  settled 
that  if  the  state  and  congress  have  a  concurrent  power,  that  of  the  state  is  su- 
perseded when  the  power  of  congress  is  exercised.''^'' 

Where  Congress  Has  Not  Occupied  the  Full  Sphere  of  Its  Power. — It 
should  never  be  held,  however,  that  congress  intends  to  supersede  or  by  its  leg- 
islation suspend  the  exercise  of  the  police  powers  of  the  states,  even  when  it 
may  do  so,  unless  its  purpose  to  eftect  that  result  is  clearly  manifested. ^-'^ 

(bb)  Jlliistratiois — (  bbb  )   The  Taxing  Poiver. — See  note  96. 

In  What  Respects  the  Power  of  the  States  Remains  Unabridged. — See 
note  1. 


fellow  servant  rule  in  actions  by  servants 
against  masters  to  recover  for  personal 
injuries.  Aluminum  Co.  v.  Ramsey,  222  U. 
S.  251,  56  L.  Ed.   185,  32  S.  Ct.  76. 

174-87a.  Concurrent  jurisdiction  as  to 
subject  matter. — Keller  v.  United  States, 
213  U.  S.  138,  53  L.  Ed.  737,  29  S.  Ct.  470, 
citing  New  York  v.  Aliln,  11  Pet.  101,  137, 
9  L.  Ed.  648;  Adams  Exp.  Co.  v.  Com- 
monwealth, 214  U.  S.  218,  53  L.  Ed.  972, 
29    S.    Ct.    633. 

176-91a.  Same — Exclusive  intervention 
supersedes  state  enactments. — Southern 
R.  Co.  V.  Reid,  222  U.  S.  424.  56  L.  Ed.  257, 
32   S.   Ct.   140. 

176-92a.  Where  congress  has  not  oc- 
cupied the  full  sphere  of  its  powers. — 
Asbell  V.  Kansas,  209  U.  S.  251,  52  L.  Ed. 
778,    28    S.    Ct.    485. 

177-96.  The  taxing  power  of  the  federal 
government. — Enactments  levying  taxes, 
as  other  laws  of  the  federal  government 
when  acting  within  constitutional  au- 
thority, are  the  supreme  law  of  the  land. 
The  constitution  contains  only  two  limi- 
tations on  the  right  of  congress  to  levy 
excise  taxes:  They  must  be  levied  for 
the  public  welfare,  and  are  required  to  be 
uniform  throughout  the  United  States. 
Mr.  Chief  Justice  Chase  said,  speaking 
for  the  court  in  license  tax  cases,  5 
Wall.  462,  471,  18  L.  Ed.  497,  "Congress 
can  not  tax  exports,  and  it  must  impose 
direct  taxes  by  the  rule  of  apportionment, 
and  indirect  taxes  by  the  rule  of  uni- 
formity. Thus  limited,  and  thus  only,  it 
reaches  everj-  subject  and  may  be  exer- 
cised at  discretion."  The  limitations  to 
which  the  chief  justice  refers  were  the 
only  ones  imposed  in  the  constitution 
upon  the  taxing  power.  Flint  v.  Stone 
Tracy  Co.,  220  U.  S.  107,  55  L.  Ed.  389, 
31  S.  Ct.  342.  See,  generally,  post, 
TAXATION. 

178-1.  Manner  of  collecting  taxes. — 
Each  state  is  left  to  choose  its  own 
method   of   taxation   and    the    form     and 


manner  of  enforcing  the  payment  of  pub- 
lic revenues,  subject,  only  to  the  restrict- 
ing power  of  the  federal  constitution  of 
the  United  States.  Unless  the  state  law 
is  in  conflict  with  some  provision  of  the 
federal  constitution,  it  can  not  be  invali- 
dated upon  the  ground  that  it  is  imprac- 
ticable or  inexpedient,  or  that  the  legisla- 
ture has  not  chosen  the  best  method  to 
the  desired  end.  Kentucky  Union  Co.  zk 
Commonwealth.  219  U.  S.  140,  55  L.  Ed. 
137.    31    S.    Ct.    171. 

Except  as  restrained  by  its  own  con- 
stitution or  by  the  constitution  of  the 
United  States,  the  state  of  Texas,  by  its 
legislature,  has  full  power  to  prescribe 
any  system  of  taxation  which,  in  its  judg- 
ment, is  best  or  necessary  for  its  people 
or  government.  Southwestern  Oil  Co.  v. 
Texas,  217  U.  S.  114,  54  L.  Ed.  688,  30  S. 
Ct.  496. 

The  federal  courts  can  not  interfere 
with  the  enforcement  of  the  tax  laws  of 
the  state  simply  because  they  disapprove 
of  their  terms,  or  question  the  wisdom  of 
their  enactment,  or  because  they  can  not 
be  sure  a^  to  the  precise  recourses  induc- 
ing the  state  to  enact  such  laws.  South- 
western Oil  Co.  7'.  Texas,  217  U.  S.  114, 
54   L.   Ed.   688,  30   S.   Ct.   496. 

But  upon  the  adoption  of  the  fourteenth 
amendment,  the  states  become  bound,  as 
was  the  United  States  by  the  fifth  amend- 
ment, not  to  deprive  any  person  of  prop- 
erty without  due  process  of  law.  Still,  it 
was  never  contemplated,  when  that  amend- 
ment was  adopted,  to  restrain  or  cripple 
the  taxing  power  of  the  state,  whatever 
the  methods  they  devised  for  the  purposes 
of  taxation,  unless  those  methods,  by 
their  necessary  operation,  were  incon- 
sistent with  the  fundamental  principles 
embraced  by  the  requirements  of  due 
process  of  law  and  the  equal  protection 
of  the  laws  in  respect  to  rights  of  prop- 
erty. Southwestern  Oil  Co.  v.  Texas,  217 
U.  S.   114,  54  L.  Ed.  688,  30  S.   Ct.  496. 


290 


\'ol.  I\".  COXSTirUTlOXAL  LAW.  178-180 

Where  Incompatible  with  Power  of  Congress  or  Nature  of  Govern- 
ment.— See  note  2. 

Taxation  of  Imports  by  State. — See  post.  Interstate  and  Foreigx  Com- 
merce ;   Taxation. 

(ccc)  Foreign  and  Interstate  Commerce. — Where  fundamental  principles  of 
the  constitution  are  of  equal  dignity,  neither  must  be  so  enforced  as  to  nullify 
or  substantially  impair  the  other.''^ 

Supremacy  in  Case  of  Conflict. — See  note  7. 

(gggj  Enforcement  of  Federal  Laic. — The  laws  of  the  United  States  are  laws 
in  the  several  states,  and  just  as  much  binding  on  the  citizens  and  courts  thereof 
as  the  state  laws  are.  The  United  States  is  not  a  foreign  sovereignty  as  regards 
the  several  states,  but  is  a  concurrent,  and,  within  its  jurisdiction,  paramount, 
sovereignty.  If  an  act  of  congress  gives  a  penalty  (meaning  civil  and  remedial) 
to  a  party  aggrieved,  without  specifying  a  remedy  for  its  enforcement,  there  is 
no  reason  why  it  should  not  be  enforced,  if  not  provided  otherwise  by  some  act 
of  congress  by  a  proper  action  in  a  state  court.  The  fact  that  a  state  court  de- 
rives its  existence  and  functions  from  the  state  laws  is  no  reason  why  it  should 
not  afford  relief;  because  it  is  subject  also  to  the  laws  of  the  United  States,  and 
is  just  as  much  bound  to  recognize  these  as  operative  within  the  state  as  it  is  to 
recognize  the  state  laws.  The  two  together  form  one  system  of  jurisprudence, 
which  constitutes  the  law  of  the  land  for  the  state;  and  the  courts  of  the  two  ju- 
risdictions are  not  foreign  to  each  other,  nor  to  be  treated  by  each  other  as  such, 
but  as  courts  of  the  same  country,  having  jurisdiction  partly  different  and  partly 
concurrent.  It  is  true,  the  sovereignties  are  distinct,  and  neither  can  interfere 
with  the  proper  jurisdiction  of  the  other,  as  was  so  clearly  shown  by  the  Chief 
Justice  Taney,  in  case  of  Ableman  v.  Booth,  21  How.  506,  16  L.  Ed.  169;  and 
hence  the  state  courts  have  no  power  to  revise  the  action  of  the  federal  courts, 
nor  the  federal  the  state,  except  where  the  federal  constitution  or  laws  are  in- 
volved. But  this  is  no  reason  why  the  state  courts  should  not  be  open  for  the 
prosecution  of  rights  growing  out  of  the  laws  of  the  United  States,  to  which 
their  jurisdiction  is  competent,  and  not  denied. ^'^ 

178-2.    Where  incompatible   with   power  wealth,  214  U.  S.  218,  53  L.  Ed.  972,  29  S. 

of  congress  or    nature     of     government. —  Ct.   6.33. 

Enactments  levying  taxes,  hke  other  laws  180-8a.     Enforcement    of   federal   law. — • 

of    the    federal    government    when    acting  Second    Employers'    Liability    Cases,    223 

within    constitutional    authority,     are      the  U.  S.  1.  56  L.  Ed.  327,  32  S.  Ct.  169,  quot- 

supreme   law  of  the  land.      Flint  i'.   Stone  mg  Clatlin  z:  Houseman,  93  U.  S.  130,  136, 

Tracy  Co.,  220  U.  S.  107,  55  L.  Ed.  389,  31  23   L.    Ed.   833. 

S.  Ct.  342.  Recovery   of  damages  from  initial  car- 

179-6a.     Fundamental   principles   not    to  ner    under     Carmack     Amendment.— The 

nullify  each  other.— Dick  v.  United  States,  damage    caused   by   the    tailure   ot   a   con- 

208  U.  S.  340.  353,  52  L.  Ed.  520,  28  S.  Ct.  necting   earner   m   an   mterstate   shipment 

399  to  deliver  the  goods  to  the  consignee,  tor 

r^,         ■               1     •                                  -^u    T  which    failure    the    initial    carrier    is    made 

Thus   in   regulatmg   commerce   with   In-  jj^,^j^    ^      ^j^^     Carmack     amendment      of 

dian  tribes  congress  must  have  regard  to  ,    ^^    ^g,    1906    (34    Stat,   at    L.    584,    chap, 

the  general  authority  which  the  state  has  -^           ^     g     ^             g^^^     g^pp^     ^gog.      p. 

oyer  all  persons  and  things  within  its  ju-  ^^^g.    ^^  ^,^g  Interstate  Commerce  Act  of 

risdiction.     So  the   authority  of  the   state  ^^^   '^    ^gg.     ^^  g^^^    ^^  L.  379,  chap.  104, 

can    not    be    so    exerted    as    to   impair   the  ^     g    -q             g^at.    1901,   p.   3154);   is    not 

povver  of  congress  to  regulate  commerce  ^^aceable  to  a  violation  of  the  statute,  re- 

with    the    Indian    tribes.      Dick   v    United  ^          ^       which,  under  §  9  of  the  original 

States,  208  U.  S.  340.  353,  52  L-  Ed.  520,  28  ^ct,   can   o^ly   be   had   by  proceedings  be- 

b.    Ct.    399.                                                      ^  £Qj.g  ^j.,g  interstate   commerce   commission 

180-7.  Supremacy  in  case  of  conflict. —  qj.  [^  ^he  federal  courts,  but  may  be  en- 
Dick  f.  United  States,  208  U.  S.  340,  353,  forced  in  the  state  courts  also.  Galveston, 
52  L.  Ed.  520,  28  S.  Ct.  399;  Southern  R.  etc..  R.  Co.  z:  Wallace,  223  U.  S.  481.  56 
Co.  V.  Reid,  222  U.  S.  424,  56  L.  Ed.  257,  32  L_  ]7±  516,  32  S.  Ct.  205,  distinguishing 
S.   Ct.  140;   Adams   Exp.   Co.  v.   Common-  Texas,   etc..   R.   Co.  v.  Abilene  Cotton   Oi! 

291 


185-188 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


(6)  Bach  Government  Supreme  zi'ithin  the  Scope  of  Its  Authority — (a)  Gen- 
erally.— See  note  19. 

(b)  Neither  Government  to  Intrude  upon  the  Jurisdiction,  Interfere  with  the 
Operation,  nor  Burden  the  Instrumentalities  of  the  Other — (aa).  Generally. — 
See  note  20. 

(bb)  Encroachment  through  Implied  or  Constructive  Pozvers,  or  through 
Strained  or  Unusual  Construction. — See  note  23. 

(cc)  State  Encroachment  upon  Federal  Pozver  and  Prerogatives — (bbb)  State 
Interference  zcith  Proceedings  in  Federal  Courts. — See  note  27. 


Co.,  204  U.  S.  426,  51  L.  Ed.  553,  27  S.  Ct. 
350.  See,  also,  Atlantic,  etc.,  R.  Co.  v. 
Riverside  Mills,  219  U.  S.  186,  208,  55  L. 
Ed.  167,  31   S.  Ct.  164. 

185-19.  Each  government  supreme  within 
the  scope  of  its  authority. — The  laws  of 
the  states  and  of  the  federal  government 
together  form  one  system  of  jurisprudence 
for  the  states;  but  while  this  is  true,  the 
sovereignties  are  distinct,  and  neither  can 
interfere  with  the  proper  jurisdiction  of 
the  other.  Hence  the  state  courts  have 
no  power  to  revise  the  action  of  the  fed- 
eral courts,  nor  the  federal  the  state,  ex- 
cept where  the  federal  constitution  or 
laws,  or  rights  arising  thereunder,  are  in- 
volved. Second  Employers'  Liability 
Cases,  223  U.  S.  1,  56  L.  Ed.  327,  32  S.  Ct. 
169,  citing  Ableman  v.  Booth,  21  How. 
506,  16  L.  Ed.  169,  and  Claflin  v.  House- 
man, 93  U.   S.  130,  136,  23  L.  Ed.  833. 

Undoubtedly  the  United  States  is  a 
government  of  limited  and  delegated  pow- 
ers, but  in  respect  to  those  powers  which 
have  been  expressly  delegated,  the  power 
to  regulate  commerce  between  the  states 
being  one  of  them,  the  power  is  absolute, 
except  as  limited  by  other  provisions  of 
the  constitution  itself.  Atlantic,  etc.,  R. 
Co.  V.  Riverside  Mills,  219  U.  S.  186,  55 
L.  Ed.  167,  31  S.  Ct.  164,  followed  in 
Louisville,  etc.,  R.  Co.  v.  Scott,  219  U.  S. 
209,  55  L.  Ed.  183,  31  S.  Ct.  171;  Second 
Employers'  Liability  Cases,  223  U.  S.  1, 
56  L.  Ed.  327,  32  S.  Ct.  169,  citing  Mc- 
Culloch  V.  Maryland,  4  Wheat.  316,  4  L. 
Ed.  579. 

186-20.  Neither  government  to  intrude 
upon  the  jurisdiction  nor  burden  the  in- 
strumentalities of  the  other. — The  sov- 
ereignties are  distinct.  Neither  can  inter- 
fere with  the  proper  jurisdiction  of  the 
other.  The  state  courts  have  no  power 
to  revise  the  action  of  the  federal  courts 
nor  the  federal  the  state,  except  where  the 
federal  constitution  or  laws,  or  rights 
arising  thereunder,  are  involved.  Second 
Employers'  Liability  Cases,  223  U.  S.  1, 
56  L.  Ed.  327,  32  S.  Ct.  169,  citing  Claflin 
V.  Houseman,  93  U.  S.  130,  136,  23  L.  Ed. 
833;  Ableman  v.  Booth,  21  How.  506,  16 
L.  Ed.  169. 

187-23.  Encroachment  through  implied 
or  constructive  powers,  strained  and  un- 
usual construction,  etc. — In  Houston  z: 
Moore,   5   Wheat.   1,   48,   5   L.   Ed.   19.   Mr. 


Justice  Story  says:  "Nor  ought  any 
power  to  be  sought,  much  less  to  be  ad- 
judged, in  favor  of  the  United  Stated,  un- 
less it  be  clearly  within  the  reach  of  its 
constitutional  charter.  Sitting  here,  we 
are  not  at  liberty  to  add  one  jot  of  power 
to  the  national  government  beyond  what 
the  people  have  granted  by  the  constitu- 
tion." Keller  v.  United  States,  213  U.  S. 
138,   53   L.    Ed.  737,  29   S.   Ct.  470. 

188-27.  State  interference  with  federal 
courts — Persons  or  property  in  custody 
of  courts  of  other  jurisdiction. — The  fed- 
eral and  state  courts  exercise  jurisdiction 
within  the  same  territory,  derived  from 
and  controlled  by  separate  and  distinct 
authority,  and  are  therefore  required,  upon 
every  principle  of  justice  and  propriety 
to  respect  the  jurisdiction  once  acquired 
over  property  by  a  court  of  the  other 
sovereignty.  If  a  court  of  competent  ju- 
risdiction, federal  or  state,  has  taken  pos- 
session of  property,  or  by  its  procedure 
lias  obtained  jurisdiction  over  the  same, 
svtch  property  is  withdrawn  from  the  ju- 
risdiction of  the  courts  of  the  other  au- 
thority as  effectually  as  if  the  property 
had  been  entirely  removed  to  the  terri- 
tory of  another  sovereignty.  Palmer  v. 
Texas,  212  U.  S.  118,  125,  53  L.  Ed.  435, 
29  S.  Ct.  230;  Wabash  R.  Co.  v.  Adelbert 
College,  208  U.  S.  38,  52  L.  Ed.  379,  28  S. 
Ct.  182,  and  previous  cases  in  this  court 
cited  therein  at  p.  54. 

As  was  said  by  the  '  federal  supreme 
court  in  Claflin  v.  Houseman,  93  U.  S.  130, 
136,  23  L.  Ed.  833:  "The  laws  of  the 
United  States  are  laws  in  the  several 
states,  and  just  as  much  binding  on  the 
citizens  and  courts  thereof  as  the  state 
laws  are.  The  United  States  is  not  a  for- 
eign sovereignty  as  regards  the  several 
states,  but  is  a  concurrent,  and,  within  its 
jurisdiction,  paramount,  sovereignty.  *  *  * 
If  an  act  of  congress  gives  a  penalty 
(meaning  civil  and  remedial)  to  a  party 
aggrieved,  without  specifying  a  remedy 
for  its  enforcement,  there  is  no  reason 
why  it  should  not  be  enforced,  if  not  pro- 
vided otherwise  by  some  act  of  congress, 
by  a  proper  action  in  a  state  court.  The 
fact  that  a  state  court  derives  its  existence 
and  functions  from  the  state  laws  is  no 
reason  why  it  should  not  afford  relief; 
because  it  is  subject  also  to  the  laws  of 
the    United    States,    and    is    just    as    much 


293 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


192-204 


(fff)  State  Bmroachincnt  through  Exercise  of  Taxing  Pozver — (aaaa)  Gen- 
erally; the  Pozver  to  Tax  the  Pozver  to  Destroy. — Limitation  of  Doctrine  That 
Power  to  Tax  Is  the  Power  to  Destroy. — See  note  43. 

(dddd)    Taxation  of  Property  Ozmied  by  Federal  Government. — See  note  49. 

(jjjj.)  Telegraph  Companies  Employed  as  Federal  Agencies;  Messages  Sent 
by  the  United  States. — See  note  82. 

(mmmm)  Limitation  of  Doctrine — (aaaaa)  Validity  of  Tax  Dependent  upon 
Its  Effect. — See  note  86. 

(ggg)  State  Obstruction  of  Rights  under  Federal  License. — A  state  may  not 
so  exert  its  police  power  as  to  directly  hamper  or  destroy  a  lawful  authority  of 
the  government  of  the  United  States.^^*^ 


bound  to  recognize  these  as  operative 
within  the  state  as  it  is  to  recognize  the 
state  laws.  The  two  together  form  one 
system  of  jurisprudence,  which  constitutes 
the  law  of  the  land  for  the  state,  and  the 
courts  of  the  two  jurisdictions  are  not 
foreign  to  each  other,  nor  to  be  treated 
by  each  other  as  such,  but  as  courts  of  the 
same  country,  having  jurisdiction  partly 
different  and  partly  concurrent.  *  *  *  j^ 
is  true,  the  sovereignties  are  distinct,  and 
neither  can  interfere  with  the  proper  ju- 
risdiction of  the  other,  as  was  so  clearly 
shown  by  the  Chief  Justice  Taney,  in 
case  of  Ableman  v.  Booth,  21  How.  506, 
16  L.  Ed.  169,  and  hence  the  state  courts 
have  no  power  to  revise  the  action  of  the 
federal  courts,  nor  the  federal  the  state, 
except  where  the  federal  constitution  or 
laws  are  involved.  But  this  is  no  reason 
why  the  state  courts  should  not  be  open 
for  the  prosecution  of  rights  growing  out 
of  the  laws  of  the  United  States,  to  which 
their  jurisdiction  is  competent,  and  not 
denied."  Second  Employers'  Liability 
Cases,  223  U.  S.  1,  56  L.  Ed.  327,  32  S.  Ct. 
169. 

192-43.  Limitations  of  doctrine. — Flint 
V.  Stone  Tracy  Co.,  220  U.  S.  107,  55  L. 
Ed.  389,  31  S.  Ct.  342,  quoting  Knowlton 
V.  Moore,  178  U.  S.  41,  60,  44  L.  Ed.  969, 
20    S.    Ct.    742. 

193-49.  Taxation  of  federal  property  by 
states — Lands — Tax  upon  right  of  posses- 
sion not  a  tax  upon  land  itself. — Lands 
belonging  to  the  United  States  within  a 
state  are  exempt  from  taxation  by  the 
state.  Elder  v.  Wood,  208  U.  S.  226,  52 
L.  Ed.  464,  28  S.  Ct.  263;  Wisconsin  Cent. 
R.  Co.  V.  Price  County,  133  U.  S.  496,  33 
L.  Ed.  87,  10  S.  Ct.  341. 

But  a  tax  upon  the  right  of  possession 
of  such  lands  before  patent  issues  is  not 
a  tax  upon  the  land  itself.  Elder  v.  Wood, 
208  U.  S.  226,  52  L.   Ed.  464,  28   S.   Ct.   263. 

Lands  of  the  United  States  are  not 
taxed  in  violation  of  the  Act  of  March 
3,  1875  (18  Stat,  at  L.  474,  chap.  139),  §  4, 
by  the  imposition,  under  the  authority  of 
Colo.  Laws  1887,  pp.  340,  341,  of  a' tax 
upon  the  right  of  possession,  for  mining 
purposes,  of  a  lode  mining  claim,  and  the 
enforcement  of  the  collection  of  such  tax 


by  a  sale  of  such  right  of  possession. 
Elder  V.  Wood,  208  U.  S.  226,  52  L.  Ed. 
464,  28   S.   Ct.  263. 

200-82.  Effect  of  acceptance  of  Revised 
Statutes,  §  5263 — Rights  of  company  sub- 
ject to  reasonable  municipal  regulation. — 
See  Western  Union  Tel.  Co.  z\  Richmond, 
224  U.  S.  160,  56  L.  Ed.  710,  32  S.  Ct.  449. 
See,  also,  post,  LICENSES;  POLICE 
POWER;  TELEGRAPHS  AND  TELE- 
PHONES.  • 

202-86.  Limitation  of  doctrine  as  to  state 
taxation  of  federal  agencies. — It  has  been 
held  in  a  number  of  cases  that  the  state 
can  not  tax  franchises  created  by  the 
United  States  or  the  agencies  or  corpora- 
tions which  are  created  for  the  purpose 
of  carrying  out  governmental  functions 
of  the  United  States.  McCulloch  f.  Mary- 
land. 4  Wheat.  316,  4  L.  Ed.  579;  Osborn 
z:  Bank,  9  Wheat.  738,  6  L.  Ed.  204;  Rail- 
road Co.  V.  Peniston,  18  Wall.  5,  21  L.  Ed. 
787;  California  v.  Central  Pac.  R.  Co.,  127 
U.  S.  1,  32  L.  Ed.  150,  8  S.  Ct.  1073.  An 
examination  of  these  cases  will  show  that 
in  each  case  where  the  tax  was  held  in- 
valid, the  decision  rested  upon  the  propo- 
sition that  the  corporation  was  created 
to  carry  into  effect  powers  conferred  upon 
the  federal  government  in  its  sovereign 
capacity,  and  the  attempted  taxation  was 
an  interference  with  the  effectual  exercise 
of  such  powers.  Flint  v.  Stone  Tracy  Co., 
220  U.   S.  107,  55  L.   Ed.  389,  31  S.   Ct.  342. 

204-96a.  State  obstruction  of  rights  con- 
ferred by  federal  license. — Flaherty  v. 
Hanson,  215  U.  S.  515,  54  L.  Ed.  307.  30 
S.    Ct.    179. 

State  law  requiring  internal  revenue  tax 
receipts  to  be  registered  and  published. — ■ 
The  requirement  that  receipts  for  the  paj^- 
ment  of  the  federal  internal  revenue  tax 
upon  the  business  of  selling  intoxicating 
liquors  be  registered  and  published  at  the 
holder's  expense,  which  is  made  by  N.  D. 
Act  of  March  13,  1907,  is  not  a  valid  exer- 
cise of  the  poh'ce  power,  but  is  invalid,  as 
placing  a  direct  burden  upon  the  taxing 
power  of  the  federal  government.  Flaherty 
V.  Hanson,  215  U.  S.  515,  54  L.  Ed.  307,  30 
S.   Ct.   179. 

The  state  of  North  Dakota,  on  March 
13,  ]907,  enacted  a  law  requiring  a  regis- 


293 


206-209 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


(iii)  State  Bncroachment  through  the  Exercise  of  the  Police  Pozi'er. — See, 
generally,  post,  Inte:rstati;  and  ForiJign  Comme;rce;  Police  Power.  See, 
also,  ante,  "State  Obstruction  of  Rights  under  Federal  License,"  VI,  D,  3,  c, 
(6),  (b),  (bb),  (ggg). 

(dd)  federal  Bncroachment  upon  the  States — (bbb)  Federal  Government 
Not  to  Control  the  Power  nor  Revieiv  the  Discretion  of  State  Legislatdires. — 
See  note  4. 

(ccc)  Poiver  of  Federal  Government  to  Control  or  Revise  the  Proceedings  of 
State  Courts. — See  note  6. 


tration  and  publication  of  any  receipt, 
stamp,  or  license,  showing  the  payment  of 
the  special  tax  levied  under  the  laws  of 
the  United  States  upon  the  business  of 
selling  distilled,  malted,  and  fermented 
liquor.  Brielly,  the  law  provides  as  fol- 
lows: A  notice  of  the  particulars  con- 
tained in  the  receipt  or  license,  and  other 
details  respecting  the  place  where  the  tax 
receipt  or  license  is  posted,  etc..  is  re- 
quired to  be  made  for  three  weeks  in  of- 
ficial newspapers,  and  the  fees  for  pub- 
lication are  declared  to  be  tne  same  "as 
allowed  by  law  for  the  publication  of  other 
legal  notices."  Upon  complaint  made  be- 
fore a  committing  magistrate  for  the 
county  of  Grand  Forks,  state  of  North 
Dakota,  R.  E.  Flaherty,  by  the  name  of 
R.  C.  Flarty,  was  held  to  answer  upon  a 
charge  of  neglecting  to  register  and  pub- 
lish a  government  receipt  for  the  pay- 
ment of  an  internal  revenue  tax  on  the 
business  of  a  retail  dealer  in  malt  liquors. 
The  detention  complained  of  was  as- 
serted to  be  illegal  upon  the  ground  that 
the  laws  upon  which  the  prosecution  was 
based  was  repugnant  to  the  federal  con- 
stitution. "We  see  no  escape  from  the 
conclusion,"  said  the  court,  "that  it  im- 
mediately and  directly  places  a  burden 
upon  the  lawful  taxing  power  of  the 
United  States,  or,  what  is  equivalent 
thereto,  places  the  burden  upon  the  per- 
son v/ho  pays  the  United  States  tax. 
solely  because  of  the  payment  of  such  tax. 
and  wholly  without  reference  to  the  do- 
ing by  the  person  of  any  act  within  the 
state  which  is  subject  to  the  regulating 
authority  of  the  state.  That  the  at- 
tempted exertion  of  such  a  power  is  re- 
pugnant to  the  constitution  of  the  United 
States  is  so  elementary  as  to  require  noth- 
ing but  statement."  Flaherty  %.'.  Hanson, 
215  U.  S.  515,  54  U.   Ed.  307,  30  S.   Ct.  179. 

206-4.  State  legislative  povirer  and  dis- 
cretion not  subject  to  federal  control. — 
The  federal  supreme  court  can  not  set 
aside  legislation  because  it  is  harsh. 
Shevlin-Carpenter  Co.  v.  Minnesota,  218 
U.  S.  57,  54  L.   Ed.  930,  30  S.  Ct.  6G3. 

The  policy,  wisdom,  justice  and  fair- 
ness of  a  state  statute  is  not  subject  to 
review  or  criticism,  by  the  federal  su- 
preme   court.      Hunter   f.    Pittsburgh,    207 


U.    S.    161,    52    L.    Ed.   151,   28    S.    Ct.    40. 

Although  the  means  employed  by  the 
state  to  accomplish  an  object  which  it  is 
entitled  to  accoinplish  inay  be  deemed 
unwise  and  inexpedient  and  not  the  best 
or  most  efifective  which  might  have  been 
employed,  they  will  not,  for  that  reason, 
be  condemned  or  disregarded  by  the  fed- 
eral courts  if  they  have  a  real  relation  to 
the  object  sought  to  be  accomplished. 
Chicago,  etc.,  R.  Co.  v.  Arkansas,  219  U. 
S.   453,   55   L.    Ed.  290,   31   S.    Ct.   275. 

Same — Uncontrollable  power  of  state  to 
tax. — -Except  as  restrained  by  its  own  con- 
stitution or  by  the  constitution  of  the 
United  States,  the  state  of  Texas,  by  its 
legislature,  has  full  power  to  prescribe  any 
system  of  taxation  which,  in  its  judgment, 
is  best  or  necessary  for  its  people  and 
government;  that,  so  far  as  the  power  of 
the  United  States  is  concerned,  the  state 
has  the  right,  by  any  rule  it  deems  proper, 
to  classify  persons  or  business  for  the  pur- 
poses of  taxation,  subject  to  the  condition 
that  such  classification  shall  not  be  in 
violation  of  the  constitution  of  the  United 
States;  that  the  requirement  by  the  state, 
that  all  wholesale  dealers  in  specified  ar- 
ticles shall  pay  a  tax  of  a  given  amount 
on  their  occupation,  without  exacting  a 
similar  tax  on  the  occupations  of  whole- 
sale dealers  in  other  articles,  can  not,  on 
the  face  of  the  statute  or  by  reason  of 
anjr  facts  within  the  judicial  knowledge 
of  the  court,  be  held,  within  the  meaning 
of  the  fourteenth  amendment,  to  deprive 
the  taxpayer  of  his  property  without  due 
process  of  law,  or  to  deny  him  the  equal 
protection  of  the  laws;  and  that  the  fed- 
eral court  can  not  interfere  with  the  eji- 
forcement  of  the  statute  simply  because  it 
may  disapprove  its  terms,  or  question  the 
wisdom  of  its  enactment,  or  because  it  can 
not  be  sure  as  to  the  precise  reasons  in- 
ducing the  state  to  enact  it.  Southwest- 
ern Oil  Co.  V.  Texas,  217  U.  S.  114,  54  L- 
Ed.  688,  30  S.   Ct.  496. 

209-6.  Power  to  control  or  revise  pro- 
ceedings in  state  courts. — Second  Em- 
ployers' Liability  Cases,  223  U.  S.  1,  56  L. 
Ed.  327,  32  S.  Ct.  169,  citing  Claflin  v. 
Houseman,  93  U.  S.  130,  137,  23  L.  Ed.  833. 
See,  generally,  ante,  APPEAL  AND  ER- 
ROR, p.  34;  post,  COURTS. 


294 


Vol.  IV 


COXSTiruriONAL  LAW 


209-210 


Enjoining  Criminal  Proceedings  in  State  Courts. — See  note  7. 

(dddl  Federal  Encroachment  upon  the  States  through  the  Exercise  of  the 
Taxing  Pozver — (aaaa)  Generally. — The  cases  unite  in  exempting  from  federal 
taxation  the  means  and  instrumentalities  employed  in  carrying  on  the  govern- 
mental operations  of  the  state. ^"^  But  this  limitation  has  never  been  extended 
to  the  exclusion  of  the  activities  of  a  merely  private  business  from  the  federal 
taxing  power,  although  the  power  to  exercise  them  is  derived  from  an  act  of  in- 
corporation by  one  of  the  states.  The  mere  fact  that  the  business  taxed  is  done 
in  pursuance  of  authority  granted  by  a  state  in  the  creation  of  private  corpora- 
tions does  not  exempt  it  from  the  exercise  of  federal  authority  to  levy  excise 
taxes  upon  such  privileges. i"''  In  short,  the  exemption  of  state  agencies  and  in- 
strumentalities from  national  taxation  is  limited  to  those  of  a  strictly  govern- 
mental character,  and  the  true  distinction  is  between  the  attempted  taxation  of 
those  operations  of  the  states  essential  to  the  execution  of  its  governmental 
functions,  and  which  the  state  can  only  do  itself,  and  those  activities  which  are 
of  a  private  character.  The  former,  the  United  States  may  not  interfere  with 
by  taxing  the  agencies  of  the  state  in  carrying  out  its  purposes ;  the  latter,  al- 
though regulated  by  the  state,  and  exercising  delegated  authority,  such  as  the 
right  of  eminent  domain,  are  not  removed  from  the  field  of  legitimate  federal 
taxation  ^^^ 


209-7.  Enjoining  criminal  proceedings 
in  state  courts. — Individuals  who,  as  of- 
ficers of  tile  state,  are  clothed  with  some 
duty  in  regard  to  the  enforcement  of  the 
laws  of  the  state,  and  who  threaten  to 
commence,  and  are  about  to  commence, 
proceedings,  either  of  a  civil  or  criminal 
nature,  to  enforce  against  the  persons  af- 
fected thereby  an  act  of  the  state  legisla- 
ture which  violates  the  federal  constitu- 
tion, may  be  enjoined  by  a  federal  court 
of  equity  from  such  action.  Ex  parte 
Young,  209  U.  S.  123,  52  L.  Ed.  714,  28  S. 
Ct.  441.  See,  also.  Western  Union  Tel. 
Co.  7'.  Andrews,  216  U.  S.  165,  54  L.  Ed. 
430,  30  S.  Ct.  286;  Ludwig  ?>■.  Western  Union 
Tel.  Co..  216  U.  S.  146,  54  L.  Ed.  423,  30 
S.  Ct.  280.     See  post,  INJUNCTIONS. 

210-lOa.  Federal  encroachment  through 
exercise  of  the  taxing  power. — Flint  z'. 
Stone  Tracy  Co.,  220  U.  S.  107,  55  L.  Ed. 
389,  31  S.  Ct.  342.  Citing  The  Collector  f. 
Day,  11  Wall.  113,  20  L.  Ed.  122;  United 
States  V.  Railroad  Co.,  17  Wall.  322.  21  L. 
Ed.  597;  Ambrosini  v.  United  States,  187 
U.  S.  1.  47  L.  Ed.  49,  23  S.  Ct.  1.  See  post, 
TAXATION. 

210-lOb.  Same — Limitations  of  doctrine. 
—Flint  r.  Stone  Tracy  Co..  220  U.  S.  107. 
55  L.  Ed.  389,  31  S.  Ct.  342. 

In  the  case  of  South  Carolina  7'.  United 
States,  199  U.  S.  437,  50  L.  Ed.  261,  26  S. 
Ct.  no,  the  federal  supreme  court  held  that 
when  a  statute,  acting  within  the  lawful 
authority,  undertook  to  carry  on  the  liquor 
business,  it  did  not  withdraw  the  agencies 
of  the  state,  carrying  on  the  traffic,  from 
the  operation  of  the  internal  revenue  laws 
of  the  United  States.  If  a  state  may  not 
thus  withdraw  from  the  operation  of  a 
federal  taxing  law  a  subject  matter  of 
such  taxation,  it  is  difficult  to  see  how  the 


incorporation  of  companies  whose  service, 
though  of  a  public  nature  is,  nevertheless, 
with  a  view  to  private  profit,  can  have  the 
effect  of  denying  the  federal  right  to 
reach  such  properties  and  activities  for  the 
purposes  of  revenue.  It  is  no  part  of  the 
essential  governmental  functions  of  a  state 
to  provide  means  of  transportation,  sup- 
ply artificial  light,  water,  and  the  like. 
These  objects  are  often  accomplished 
through  the  medium  of  private  corpora- 
tions, and  though  the  public  may  derive  a 
benefit  from  such  operations,  the  com- 
panies carrying  on  such  enterprises  are 
nevertheless  private  coinpanies,  whose 
business  is  prosecuted  for  private  emolu- 
ment and  advantage.  For  the  purpose  of 
taxation  they  stand  upon  the  same  footing 
as  other  private  corporations  upon  which 
special  franchises  have  been  conferred. 
Flint  V.  Stone  Tracy  Co.,  220  U.  S.  107,  55 
L.  Ed.  389,  31  S.  Ct.  342. 

210-lOc.  Same — Same. — Flint  v.  Stone 
Tracy  Co.,  220  U.  S.  107,  55  L.  Ed.  389,  31 
S.  Ct.  342. 

A  tax  imposed  upon  the  exercise  of  the 
privilege  of  doing  business  in  a  corporate 
capacity,  as  such  business  is  done  under 
authority  of  state  franchises,  is  within  the 
right  of  the  federal  government.  The 
right  to  tax  the  activities  of  private  cor- 
porations which  arise  from  the  exercise  of 
franchises  granted  by  the  state  in  creating 
and  conferring  powers  upon  such  corpora- 
tions is  not  beyond  the  taxing  power  of 
the  United  States.  Flint  7'.  Stone  Tracy 
Co.,  220  U.  S.  107.  55  L.  Ed.  389,  31  S.  Ct. 
342;  Railroad  Co.  v.  Collector,  100  U.  S. 
595.  25  L.  Ed.  647;  United  States  v.  Erie 
R.  Co..  106  U.  S.  327.  27  L.  Ed.  151.  1  S.  Ct. 
223;    Spreckels    Sugar    Refin.    Co.    v.    Mc- 


295 


215-218 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


(gg?)  Power  of  Federal  Courts  to  Restrain  State  Officers  Acting  under  Un- 
constitutional Lazvs. — See  ante,  "Power  of  Federal  Government  to  Control  or 
Revise  the  Proceedings  of  State  Courts,"  VI,  D,  3,  c,  (6),  (b),  (dd),  (ccc). 
See,  also,  post,  Courts;  Due  Process  of  Law;  Injunctions;  Jurisdiction; 
States. 

(hh)  Supremacy  in  Case  of  Conflict  betzveeii  State  and  Federal  Pozvers. — See 
notes  29,  30,  ZZ. 


Clain,  192  U.  S.  397,  48  L.  Ed.  496,  24  S.  Ct. 
376. 

Public  service  corporations,  such  as 
street  railway  companies  created  under 
state  laws,  may  constitutionally  be  sub- 
jected to  the  excise  imposed  by  the  Act 
of  August  5,  1909,  §  38,  upon  the  doing  or 
carrying  on  of  business  in  a  corporate  or 
quasi  corporate  capacity.  Flint  v.  Stone 
Tracy  Co.,  220  U.  S.  107,  55  L.  Ed.  389,  31 
S.  Ct.  342. 

The  excise  imposed  by  the  Act  of 
August  5,  1909,  §  38,  upon  the  carrying  on 
or  the  doing  of  business  in  a  corporate  or 
quasi  corporate  capacity,  is  not  invalid  be- 
cause the  business  taxed  is  done  in  pursu- 
ance of  the  authority  granted  by  a  state, 
in  the  creation  of  private  corporations. 
Flint  V.  Stone  Tracy  Co.,  220  U.  S.  107,  55 
L.  Ed.  389,  31  S.  Ct.  342. 

The  possibility  that  the  rights  of  the 
several  states  to  create  corporations  may 
practically  be  destroyed  by  the  exercise  of 
the  power  assumed  by  congress  in  the  Act 
of  August  5,  1909,  §  38,  to  impose  an  ex- 
cise upon  the  doing  or  the  carrying  on  of 
business  in  a  corporate  or  quasi  corporate 
capacity,  furnishes  no  ground  for  judicial 
interference  with  the  tax.  Flint  v.  Stone 
Tracy  Co.,  220  U.  S.  107,  55  L.  Ed.  389,  31 
S.  Ct.  342. 

Corporations  acting  as  trustees,  guard- 
ians, etc.,  under  the  authority  of  the  laws 
or  courts  of  a  state,  are  not  the  agents  of 
the  state  government  in  such  a  sense  as  to 
be  exempt  from  the  imposition,  under  the 
Act  of  August  5,  1909,  §  38,  of  an  excise 
measured  by  net  income  upon  the  doing 
or  the  carrying  on  of  business  in  a  corpo- 
rate or  quasi  corporate  capacity.  Flint  v. 
Stone  Tracy  Co.,  220  U.  S.  107,  55  L.  Ed. 
389,  31   S.  Ct.  342. 

215-29.  Supremacy  in  case  of  conflict  be- 
tween state  and  federal  powers. — It  not 
infrequently  happens  that  the  same  act 
may  be  referable  to  the  power  of  the  state 
as  well  as  to  that  of  congress,  and  it  is 
w&\\  settled  that  if  there  be  a  collision  in 
such  a  case,  the  superior  authority  of  con- 
gress prevails,  since  the  constitution  of 
the  United  States,  together  with  the  laws 
and  treaties  enacted  under  the  authority 
thereof,  is  the  supreme  law  of  the  land, 
anything  in  the  constitution  or  laws  of 
any  state  to  the  contrary  notwithstanding, 
and  the  government  of  the  United  States, 
though  one  of  limited  and  enumerated 
powers,  is  supreme  within  its  sphere  of 
action.     Keller  v.  United  States,  213  U.  S. 


138,  53  L.  Ed.  737,  29  S.  Ct.  470;  New  York 
V.  Miln,  11  Pet.  101,  137,  9  L.  Ed.  648;  Sec- 
ond Employers'  Liability  Cases,  223  U.  S. 
1,  56  L.  Ed.  327,  32  S.  Ct.  169,  quoting 
Chief  Justice  Marshall  in  McCuHoch  v. 
Maryland,  4  Wheat.  316,  4  L.  Ed.  579; 
Adams  Exp.  Co.  v.  Commonwealth,  214  U. 
S.  218,  53  L.  Ed.  972,  29  S.  Ct.  633. 

It  is  well  settled  that  if  the  state  and 
congress  have  concurrent  power,  that  of 
the  state  is  superseded  when  the  power  of 
congress  is  exercised.  Southern  R.  Co.  v. 
Reid,  222  U.  S.  424,  56  L.  Ed.  257,  32  S.  Ct. 
140. 

217-30.  Immaterial  to  what  class  conflict- 
ing state  power  may  belong. — -It  has  long 
been  settled  that  when  an  "act  of  the  leg- 
islature of  a  state  prescribes  a  regulation 
repugnant  to  and  inconsistent  with  a  regu- 
lation of  congress,  the  state  law  must  give 
way,  and  this  without  regard  to  the  source 
of  power  whence  the  state  legislature  de- 
rived its  authority  for  the  enactment." 
Sinnot  V.  Davenport,  22  How.  227,  243,  16 
L.  Ed.  243;  Missouri,  etc.,  R.  Co.  v.  Haber, 
169  U.  S.  613,  626,  42  L.  Ed.  878,  18  S.  Ct. 
488;  Reid  7'.  Colorado,  187  U.  S.  137,  47  L. 
Ed.  108,  23  S.  Ct.  92.  This  results,  Chief 
Justice  Marshall  said  in  Gibbons  v.  Ogden, 
9  Wheat.  1,  6  L.  Ed.  23,  as  well  from  the 
nature  of  the  government  as  from  the 
words  of  the  constitution.  Chicago,  etc., 
R.  Co.  V.  United  States,  219  U.  S.  486,  55 
L.  Ed.  305,  31  S.  Ct.  272. 

218-33.  State  law  not  to  be  held  invalid 
unless  conflict  is  clear. — When  the  ques- 
tion is  whether  a  federal  act  overrides  a 
state  law,  the  entire  scheme  of  the  statute 
must  of  course  be  considered  and  that 
which  needs  must  be  iinplied  is  of  no  less 
force  than  that  which  is  expressed.  If  the 
purpose  of  the  act  can  not  otherwise  be 
accomplished — if  its  operation  within  its 
chosen  field  else  must  be  frustrated  and  its 
provisions  be  refused  their  natural  effect — 
the  state  law  must  yield  to  the  regulation 
of  congress  within  the  sphere  of  its  dele- 
gated power.  Savage  v.  Jones,  225  U.  S. 
501,  533,  56  L.  Ed.  1182,  32  S.  Ct.  715,  fol- 
lowed in  Standard  Stock  Food  Co.  v. 
Wright,  225  U.  S.  540,  56  L.  Ed.  1197,  32 
S.  Ct.  748;  Texas,  etc.,  R.  Co.  v.  Abilene 
Cotton  Oil  Co.,  204  U.  S.  426,  51  L.  Ed. 
553,  27  S.  Ct.  350;  Northern  Pac.  R.  Co.  v. 
Atkinson,  222  U.  S.  370,  378,  56  L.  Ed.  237, 
32  S.  Ct.  160;  Southern  R.  Co.  v.  Reid,  222 
U.  S.  424,  436,  56  L-  Ed.  257,  32  S.  Ct.  140. 

But  the  intent  to  supersede  the  exercise 
by  the  state  of  its  police  power  as  to  mat- 


296 


Vol.  IV, 


COXSTITUTIOXAL  LAW. 


219-222 


d.  Separation  of  Departments  and  Distribution  of  Pozuers — (1)  Pozver  of 
Body  Politic  zvith  Respect  to  Distribution  of  Pozvers. — In  the  Several  States. 
— See  note  37. 

(3)  The  Departments  Separate;  None  to  Encroach  upon  or  Exercise  the 
Pozvers  of  Another — (a)  Generally. — Legislative  and  Judicial  Functions 
Distinguished. — A  judicial  inquiry  investigates,  declares  and  enforces  liabilities 
as  they  stand  on  present  or  past  facts  and  under  laws  supposed  already  to  exist. 
That  is  its  purpose  and  end.  Legislation  on  the  other  hand  looks  to  the  future 
and  changes  existing  conditions  by  making  a  new  rule  to  be  applied  thereafter 
to  all  or  some  part  of  those  subject  to  its  power.-* ^"^ 

(b)  Legislative  Exercise  of  Judicial  Pozvers — (aa)  Generally. — Federal 
Constitution  Not  Prohibitive  to  State  Legislatures. — See  ante,  "Power  of 
Body  Politic  with  Respect  to  Distribution  of  Powers,"  VI,  D,  3,  d,  (1). 

(bb)  What  Constitutes — (aaa)  Legislation  Affecting  Pending  Suits  or  Judg- 
ments Rendered — (eeeej  Statute  Amending,  Overruling  or  Setting  Aside  Judg- 
ment or  Decree. — See  note  50. 


ters  not  covered  by  the  federal  legislation 
is  not  to  be  inferred  from  the  mere  fact 
that  congress  has  seen  fit  to  circumscribe 
its  regulation  and  to  occupy  a  limited 
field.  In  other  words,  such  intent  is  not 
to  be  implied  unless  the  act  of  congress 
fairly  interpreted  is  in  actual  conflict  with 
the  law  of  the  state.  Sa^-age  v.  Jones,  225 
U.  S.  501,  533,  56  L.  Ed.  1182,  32  S.  Ct.  715, 
followed  in  Standard  Stock  Food  Co.  v. 
Wright,  225  U.  S.  510,  56  L.  Ed.  1197,  32 
S.  Ct.  784;  Asbell  v.  Kansas,  209  U.  S.  251, 
52  L.  Ed.  778,  28  S.  Ct.  485;  Northern  Pac. 
R.  Co.  v.  Atkinson,  222  U.  S.  370,  379,  56 
L.  Ed.  237,  33  S.  Ct.  160;  Southern  R.  Co. 
V.  Reid,  222  U.  S.  424,  442,  56  L.  Ed.  257,  32 
S.  Ct.  140. 

219-37.  Powers  of  state  with  respect  to 
distribution  of  powers. — When  a  state 
constitution  sees  fit  to  unite  legislative  and 
judicial  powers  in  a  single  hand,  there  is 
nothing  to  hinder,  so  far  as  the  constitti- 
tion  of  the  United  States  is  concerned. 
Prentis  v.  Atlantic  Coast  Line  Co.,  211  U. 
S.  210,  225.  53  L.  Ed.  150,  29  S.  Ct.  67; 
Dreyer  z:  Illinois,  187  U.  S.  71,  47  L.  Ed. 
79,  23  S.  Ct.  28;  Winchester  &  Strasburg  R. 
R.  Co.  V.  Commonwealth,  106  Va.  264,  268. 

There  is  nothing  in  the  federal  constitu- 
tion which  directly  or  impliedly  forbids  a 
state  to  confer  judicial  functions  upon 
nonjudicial  bodies.  Judgment,  In  re  Con- 
solidated Rendering  Co.  (Vt.  1907)  66  A. 
790,  affirmed.  Consolidated  Rendering  Co. 
V.  Vermont,  207  U.  S.  541,  52  L.  Ed.  327,  28 
S.  Ct.  178. 

The  bounds  of  judicial  authority  are  not 
transcended  by  the  appointment  by  a 
court  of  a  water  commission  charged  with 
the  duty  of  distributing  the  waters  of  a 
river  among  the  various  irrigation  canals 
according  to  the  adjudged  priorities,  and 
imposing  upon  the  parties  a  pro  rata  lia- 
bility for  his  salary.  ]\Iontezuma  Canal 
Co.  V.  Smithville  Canal  Co.,  218  U.  S.  371, 
54  L.  Ed.  1074,  31  S.  Ct.  67.  reversing  11 
Ariz.  99,  89  Pac.  512. 

220-41a.     Legislative   and   judicial   func- 


tions distinguished, — Prentis  v.  Atlantic 
Coast  Line  Co..  211  U.  S.  210,  226.  53  L. 
Ed.  150,  29  S.  Ct.  G7. 

222-50.  Impeachment  of  fraudulent 
judgment  awarding  certificate  of  naturali- 
zation.— Congress  did  not  unconstitution- 
ally exercise  judicial  power  by  enacting 
the  provisions  of  the  Act  of  June  29,  1906, 
§  15,  under  which  certificates  of  naturaliza- 
tion theretofore  issued  ex  parte  in  the  or- 
dinary way  may  be  impeached  where 
fraudulently  and  illegally  procured  by  per- 
jured testimony.  Johannessen  v.  United 
States,  225  U.  S.  227,  56  L.  Ed.  1066,  32  S. 
Ct.  613. 

The  contention  that  the  Act  of  June  29, 
1906,  in  authorizing  the  impeachment  of 
certificates  of  naturalization  theretofore 
issued  for  fraud  consisting  of  the  introduc- 
tion of  perjured  testimony  is  unconstitu- 
tional, as  an  exercise  of  judicial  power  by 
the  legislative  department  is  without 
merit.  The  act  does  not  purport  to  de- 
prive a  litigant  of  the  fruits  of  a  success- 
ful controversy  in  the  courts,  for  the 
proceedings  for  naturalization  are  not  in 
any  proper  sense  adversary  proceedings, 
but  are  ex  parte  and  conducted  by  the 
applicant  for  his  own  benefit.  The  act 
in  effect  provides  for  a  new  form  of  judi- 
cial review  of  a  question  that  is  in  form, 
but  not  in  substance,  concluded  by  the 
previous  record,  and  under  conditions  af- 
fording to  the  party  whose  rights  are 
brought  into  question  full  opportunity  to 
be  heard.  Retrospective  acts  of  this  char- 
acter have  often  been  held  not  to  be  an 
assumption  by  the  legislative  department 
of  judicial  powers.  Johannessen  v.  United 
States,  225  U.  S.  227,  56  L.  Ed.  1066.  32  S. 
Ct.  613,  citing  Sampeyreac  v.  United 
States,  7  Pet.  222,  239,  8  L.  Ed.  665;  Free- 
born v.  Smith,  2  Wall.  160,  175,  17  L.  Ed. 
922;  Garrison  v.  New  York,  21  Wall.  196, 
202,  22  L.  Ed.  612;  Freeland  v.  Williams, 
13l'  U.  S.  405,  413,  33  L.  Ed.  193,  9  S.  Ct. 
763;  Stephens  f.  Cherokee  Nation,  174  U. 
S.   445,   478,   43    L.    Ed.    1041,   19    S.    Ct.   722. 


297 


223-231 


COXSTITUriONAL  LAW. 


Vol.  IV. 


(bbb)  Legislative  Judgments  and  Decrees — (aaaa)  Generally. — The  state 
can  not  make  a  legislative  act  res  judicata  by  providing  for  notice  and  hearing 
of  interested  persons  before  the  enactment  of  the  law.  Nor  can  a  citizen  be  de- 
prived of  the  right  to  resort  to  the  courts  for  the  purpose  of  redressing  the 
prosecution  of  an  act  upon  the  ground  that  he  was  negligent  or  guilty  of  laches 
in  not  appearing  before  the  legislative  body  and  opposing  the  enactment  of  the 
act  of  which  he  complains.  On  the  other  hand,  it  may  be  said  that  a  citizen  has 
the  right  to  assume  that  the  legislature  will  act  with  respect  to  the  constitutional 
limitations  and  that  he  may  safely  rest  upon  the  assumption  that  he  is  not  bound 
to  be  continually  on  the  alert  against  the  enactment  of  unconstitutional  legisla- 
tion, and  that  he  will  have  the  right,  if  such  legislation  should  be  enacted,  to  re- 
sort to  tlie  courts  for  protection  against  it.-""-*^ 

(ccc)  Legislative  Construction  of  Statutes. — See  post,  "Impairment  by  Legis- 
lative Construction  of  Statutes,"  \'III,  C,  2. 

(c)  Exercise  of  Legislative  or  Political  Functions  by  the  Judiciary — (aa) 
Generally  as  to  Judicial  Legislation. — See  note  86. 

(cc)  Generally  as  to  International  Relations;  Determination  of  Rightful  Sov- 
ereign or  Government. — Admission  or  Exclusion  of  Aliens. — See  note  3. 


223-53a.  Legislative  judgments  and  de- 
crees— Due  process — Power  to  make  leg- 
islation res  judicata. — Prentis  v.  Atlantic 
Coast  Line  Co.,  211  U.  S.  :310,  53  L.  Ed. 
150,    29    S.    Ct.    67. 

Same — Prescribing  rates. — For  example 
the  making  or  prescribing  of  rates  is  a 
legislative  function  whether  done  by  leg- 
islature or  a  state  railroad  corporation 
commission;  and  the  decision  or  order  ot 
such  body  in  prescribing  the  rates  can 
not  be  made  res  judicata,  and  a  citizen 
deprived  of  the  right  to  resort  to  the 
courts  to  protect  his  constitutional  rights, 
by  reason  of  the  fact  that  he  was  given 
notice  and  opportunity  to  be  heard,  be- 
fore the  commission  or  legislative  body, 
before  the  proposed  rule  or  order  pre- 
scribing the  rates  was  promulgated.  Such 
a  decision  is  not  judicial  nor  rendered  in 
a  judicial  proceeding,  since  litigation  can 
not  arise  until  legislation  has  been  enacted. 
Prentis  v.  Atlantic  Coast  Line  Co.,  211 
U.    S.   210,   53   L.   Ed.   150.   29   S.    Ct.   67. 

228-86.  Generally  as  to  judicial  legisla- 
tion.— The  legislature  provided  it  acts 
within  its  constitutional  authority,  is  the 
arbiter  of  the  public  policy  of  the  state, 
and  while  the  courts,  unaided  by  legis- 
lative declaration,  and  applying  the  prin- 
ciples of  the  common  law,  may  uphold 
or  condemn  contracts  in  the  light  of 
what  is  conceived  to  be  public  policy,  its 
determination  as  a  rule  for  future  action, 
must  yield  to  the  legislative  will  when 
expressed  in  accordance  with  the  organic 
law.  Chicago,  etc.,  R.  Co.  v.  McGnire, 
219  U.   S.   549,   55  L.   Ed.  328.  31   S.   Ct.   259. 

231-3.  Admission  and  exclusion  of 
aliens.— vSee,  generally,  ante,  ALIENS, 
p.   IS. 

"Repeated  decisions  of  this  court  have 
determined  that  congress  has  the  power 
to  exclude  aliens  from  the  United  States; 
to  prescribe   the   terms  and   conditions  on 


which  they  may  come  in;  to  establish 
regulations  for  sending  out  of  the  country 
such  aliens  as  have  entered  in  violation 
of  law,  and  to  commit  the  enforcement  of 
such  conditions  and  regulations  to  exec- 
utive officers;  that  the  deportation  of  an 
alien  who  is  found  to  be  here  in  viola- 
tion of  law  is  not  a  deprivation  of  liberty 
without  due  process  of  law,  and  that  the 
provisions  of  the  constitution  securmg 
the  right  of  trial  by  jury  have  no  appli- 
cation." Oceanic  Steam  Nav.  Co.  v. 
Stranahan,  214  U.  S.  320,  53  L.  Ed.  1013, 
29    S.    Ct.    671. 

Congress  could  empower  the  secretary 
of  commerce  and  labor  to  enforce,  with- 
out invoking  the  judicial  power,  the  pen- 
alty   imposed    by    Act    March    3,    1903,    c. 

1012,  §  9,  32  Stat.  1215,  for  bringing  into 
the  United  States  an  alien  afiflicted  with 
a  loathsome  or  dangerous  contagious  dis- 
ease. Judgment,  International  Mercan- 
tile Marine  Co.  v.  Stranahan  (C.  C.  1907) 
155  F.  428,  affirmed.  Oceanic  Steam  Nav. 
Co.  V.   Stranahan,  214  U.   S.  320,  53  L.   Ed. 

1013,  29  S.  Ct.  671;  International,  etc.. 
Marine  Co.  v.  Stranahan,  214  U.  S.  344, 
53    L.    Ed.    1024,    29    S.    Ct.    678. 

Making  the  official  medical  examina- 
tion at  the  port  of  arrival  conclusive  for 
the  purpose  of  imposing  the  penalty,  en- 
forceable by  refuJsing  clearance«  papers 
until  paid,  which  is  authorized  by  Act 
March  3,  1903,  c.  1012,  §  9,  32  Stat.  1215, 
for  violating  its  provisions  by  bringing 
into  the  United  States  an  alien  afflicted 
with  a  loathsome  or  contagious  disease, 
does  not  render  such  statute  repugnant 
to  Const.  U.  S.  Amend.  5,  as  taking  prop- 
erty without  due  process  of  law.  judg- 
ment. International  Mercantile  Marine 
Co.  V.  Stranahan  (C.  C.  1907)  155  F.  428, 
affirmed.  Oceanic  Steam  Nav.  Co.  v. 
Stranahan,  214  U.  S.  320,  53  L.  Ed.  1013, 
29   S.   Ct.   671;    International,    etc..   Marine 


298 


Vol.  IV 


COXSTITUTIOXAL  LAW. 


232-244 


Rightful  Government  of  States  of  the  United  States. — See  note  6. 

(kkj   The  Pozi'er  of  Taxation  Not  Judicial.— ^See  note  38. 

(qq)  Regulation  of  Public  Serzice  Corporation,  Including  Regulation  of 
Rates. — The  power  to  regulate  public  service  corporations,  including  the  regu- 
lation of  rates,  is  legislative  in  its  character  and  may  be  exercised  directly  by  the 
legislature  itself.  But  the  legislature  may  delegate  to  an  administrative  body 
the  execution  in  detail  of  the  legislative    power  of  regulation.-*^^     So  far    as  the 


■Co.  V.  Stranahan,  214  U.  S.  344,  53  L.  Ed. 
1024,  29   S.   Ct.   678. 

Congress  had  power  to  confide  to  the 
secretary  of  coinnierce  and  labor  the  en- 
forcement of  the  penalty  for  bringing  into 
the  United  States  an  alien  afflicted  with 
a  loathsome  or  dangerous  contagious  dis- 
ease, in  violation  of  Act  March  3,  1903, 
c.  1012,  §  9.  32  Stat.  1215,  and,  when  the 
official  medical  examination  at  the  port 
of  arrival  shows  that  the  alien  was  suf- 
fering from  the  disease  at  the  time  of 
embarkation,  the  existence  of  which  might 
have  been  detected  by  a  competent  med- 
ical examination  then  made  as  the  stat- 
ute requires,  does  not  render  such  statute 
open  to  the  objection  that  it  defines  a 
criminal  ofifense,  and  authorizes  a  purely 
administrative  officer  to  determine  whether 
the  defined  crime  has  been  committed, 
and,  if  so,  to  inflict  a  punishment.  In- 
ternational, etc.,  Marine  Co.  v.  Stranahan. 
214  U.  S.  344,  53   L.   Ed.   1024,  29  S.  Ct.  678. 

232-6.  Rightful  government  of  one  ot 
the  United  States. — Pacific  States  Tel., 
etc.,  Co.  :■.  Oregon,  223  U.  S.  118,  56  L. 
Ed.  377,  32  S.  Ct.  224:  Kiernan  v.  Port- 
land. 223  U.  S.  151,  56  L.  Ed.  386,  32  S. 
Ct.  231.  See,  also,  post,  "Political  De- 
partment Charged  with  Duty  of  Enforc- 
ing Guaranty,"  VI,  D,  5,  d,   (2). 

241-38.  The  power  of  taxation  not  judi- 
cial.— In  the  federal  government,  the  right 
to  select  the  measure  and  objects  of  taxa- 
tion devolves  upon  congress,  and  not  upon 
the  courts,  and  such  selections  are  valid 
imless  constitutional  limitations  are  over- 
stepped. It  is  no  part  of  the  function  of 
a  court  to  inquire  into  the  reasonableness 
of  the  excise,  either  as  respects  the 
amount  or  the  property  upon  which  it  is 
imposed.  Flint  v.  Stone  Tracy  Co.,  220 
U.  S.  107,  55  L.  Ed.  389,  31  S.  Ct.  342; 
Patton  V.  Brady,  184  U.  S.  608,  46  L.  Ed. 
713,  22  S.  Ct.  493;  McCray  v.  United 
States,  195  U.  S.  27,  58,  49  L.  Ed.  78,  24 
S.    Ct.  769. 

Except  as  restrained  by  its  own  con- 
stitution or  by  the  constitution  of  the 
United  States,  the  state  of  Texas,  by  its 
legislature,  has  full  power  to  prescribe 
any  system  of  taxation  which,  in  its  judg- 
ment, is  best  or  necessary  for  its  people 
and  government;  and,  so  far  as  the  power 
of  the  United  States  is  concerned,  the 
state  has  the  right,  by  any  rule  it  deems 
proper,  to  classify  persons  or  businesses 
for    the    purposes    of   taxation,    subject   to 


the  condition  that  such  classification  shall 
not  be  in  violation  of  the  constitution  of 
the  United  States.  The  requirement  by 
the  state,  that  all  wholesale  dealers  in 
specified  articles  shall  pay  a  tax  of  a  given 
amount  on  their  occupation,  without  ex- 
acting a  similar  tax  on  the  occupations  of 
wholesale  dealers  in  other  articles,  can  not, 
on  the  face  of  the  statute  or  by  reason  of 
any  facts  within  the  judicial  knowledge 
of  the  court,  be  held,  within  the  meaning 
of  the  14th  amendment,  to  deprive  the 
taxpayer  of  his  property  without  due  proc- 
ess of  law,  or  to  deny  him  the  equal  pro- 
tection of  the  laws;  and  the  federal  court 
can  not  interfere  with  the  enforcement 
of  the  statute  simply  because  it  may  dis- 
approve its  terms,  or  question  the  wisdom 
of  its  enactment,  or  because  it  can  not  be 
sure  as  to  the  precise  reason  inducing  the 
the  state  to  enact  it.  Southwestern  Oil 
Co.  V.  Texas,  217  U.  S.  114.  54  L.  Ed.  688, 
30    S.    Ct.   496. 

244-49a.  Regulation  of  public  service 
corporations  including  regulation  of  rates. 
— Honolulu,  etc..  Land  Co.  v.  Territory  of 
Hawaii,  211  U.  S.  282,  291,  53  L.  Ed.  186, 
29  S.  Ct.  55;  Prentis  v.  Atlantic  Coast 
Line  Co.,  211  U.  S.  210.  225.  53  L.  Ed.  150, 
29  S.  Ct.  67.    See  post,  POLICE  POWER. 

The  power  to  regulate  rates  and  sched- 
ules is  a  legislative  function,  and  it  is  an 
unwarranted  assumption  of  legislative 
powers  for  a  court,  not  invested  with  any 
special  statutory  authority,  tior  having 
the  property  in  its  control  by  receiver- 
ship, to  undertake,  solely  by  virtue  of  its 
general  judicial  powers,  to  control  to 
such  an  extent  and  in  such  detail  the 
business  of  a  transportation  corporation. 
A  fortiori  is  this  true  .where  the  legis- 
lature has  delegated  this  power  to  an 
administrative  body.  Honolulu,  etc..  Land 
Co.  V.  Territory  of  Hawaii,  211  U.  S.  282, 
53  L.  Ed.  186,  29  S.  Ct.  55. 

The  enforcement  of  the  continuance  by 
a  Hawaiian  street  railway  company  of  a 
ten  minutes  schedule  on  certain  of  its 
lines,  upon  the  giound  that  the  public  con- 
venience demands  such  a  schedule,  is  net 
within  the  limits  of  the  judicial  power, 
and  is  totally  inconsistent  with  the  power 
to  regulate  the  management  of  the  street 
railway  in  this  respect,  which  is  ulti- 
mately vested  by  Haw.  Rev.  Laws.  §  843 
(Sess.  Laws  1905.  act  No.  78),  in  the  exec- 
utive authorities.  Plonolulu,  etc..  Land 
Co.  V.  Territory  of  Hawaii,  211  U.  S.  282, 
53   L.   Ed.    186,  29   S.   Ct.   55. 


299 


244-248 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


constitution  of  the  United  States  is  concerned,  there  is  nothing  to  prevent  any 
state,  if  it  sees  fit  to  do  so,  frorrt  uniting  legislative  and  judicial  functions  with 
respect  to  these  matters  in  the  same  hands.'*  ^^ 

(rr)  Exercise  of  Administrative  Functions  in  Carrying  Decrees  into  Effect. — 
The  exercise  of  administrative  functions  by  a  court  of  equity  in  carrying  out 
the  provisions  of  its  valid  decrees  is  not  unlawful  as  an  assumption  of  execu- 
tive or  legislative  functions.^^'^ 

(d)  Poiver  of  Congress  to  Impose  Legislative  or  E.vecntive  Duties  upon  the 
Judiciary — (aa)   Generally. — See  note  50. 

(e)  Poiver  to  Impose  Judicial  Functions  upon  Nonjudicial  Tribunals. — See 
note  61. 

Judicial  Powers  of  the  States. — See  ante,  "Power  of  Body  Politic  with  Re- 
spect to  Distribution  of  Powers,"  VI,  D,  3,  d,  (1). 

(4)  The  Departments  Independent  and  Co-Ordinatc;  None  to  Coerce  or  Con- 


244-49b.  Same — State  may  unite  legis- 
lative and  judicial  functions  in  same 
hands. — Prentis  v.  Atlantic  Coast  Line 
Co.,  211  U.  S.  210.  225,  53  L.  Ed.  150,  29 
S.  Ct.  67. 

244-49C.  Exercise  of  administrative 
functions  in  carrying  decrees  into  effect. 
— Montezuma  Canal  Co.  v.  Smithville  Ca- 
nal Co.,  218  U.  S.  371,  54  L.  Ed.  1074,  31 
S.  Ct.  67,  reversing  11  Ariz.  99,  89  Pac. 
512. 

The  bounds  of  judicial  authoritj-  are 
not  transcended  by  the  appointment  by 
a  court  of  a  water  commissioner  charged 
with  the  duty  of  distributing  the  waters 
of  a  river  among  the  various  irrigation 
canals  according  to  the  adjudged  prior- 
ities, and  imposmg  upon  the  parties  a  pro 
rata  liability  for  his  salary.  (1910)  Monte- 
zuma Canal  Co.  v.  Smithville  Canal  Co., 
218  U.  S.  371,  54  L.  Ed.  1074,  31  S.  Ct. 
67,  reversing  decree  (1907)  89  Pac.  512, 
11    Ariz.    99. 

Because  it  was  within  the  legislative 
power  to  provide  administrative  machin- 
ery to  supervise  the  common  use  of  water 
in  a  flowing  stream  by  those  having  a 
lawful  right  to  appropriate  the  water  of 
that  stream  for  beneficial  use,  it  does 
not  result  that  the  decree  entered  by  the 
court  was  in  excess  of  its  authority.  On 
the  contrary,  in  view  of  the  absence  of 
legislative  action  on  the  subject,  and  of 
the  necessity  which  manifestly  existed 
for  supervising  the  use  of  the  stream  by 
those  having  the  right  to  take  the  water 
in  accordance  with  the  decree  which,  un- 
doubtedly to  that  extent,  the  court  was 
authorized  to  render,  the  action  taken 
by  the  court  did  not  transcend  the 
bounds  of  judicial  authority,  and  there- 
fore is  not  justly  amenable  to  the  attack 
made  upon  it.  Montezuma  Canal  Co.  v. 
Smithville  Canal  Co.,  218  U.  S.  371,  54 
L.    Ed.    1074,    31    S.    Ct.    67. 

244-50.  Power  of  congress  to  impose 
legislative  or  executive  functions  upon 
the  judiciary. — United  States  v.  Evans, 
213  U.  S.  297,  53  E.  Ed.  803,  29  S.  Ct.  507; 


Standard  Oil  Co.  v.  United  States,  221 
U.  S.  1,  55  h.  Ed.  619,  31  S.  Ct.  502,  af- 
firming  173    Fed.   177. 

Same — Determination  of  moot  ques- 
tions.— The  review  of  rulings  of  the  trial 
court  in  a  criminal  case  by  the  appeal 
taken,  under  D.  C.  Code,  §  935,  on  be- 
half of  the  government  after  acquittal,  on 
which  the  court  has  no  power  to  set  aside 
the  verdict,  involves  a  determination  of 
moot  questions  only,  which  is  not  a  ju- 
dicial function,  and  can  not  be  required 
of  a  federal  court  by  congress.  United 
States  V.  Evans,  213  U.  S.  297,  53  L.  Ed. 
803,  29  S.  Ct.  507,  following  United  States 
V.  Ferreira,  13  How.  40,  52,  14  L.  Ed.  42; 
Hayburn's  Case,  2  Dall.  408,  410,  1  L.  Ed. 
436. 

Monopolies  in  restraint  of  trade — Leav- 
ing judiciary  to  determine  what  consti- 
tutes, within  the  statute. — Legislaiive 
power  is  not  unconstitutionally  delegated 
to  the  courts  by  the  provisions  of  Act 
July  2.  1890,  c.  647,  §§  1,  2,  26  Stat.  209 
(U.  S.  Comp.  St.  1901,  p.  3200),  prohibit- 
ing combinations  in  restraint  of  interstate 
or  foreign  trade  or  commerce,  or  the  ino- 
nopolization  or  attempt  to  monopolize 
any  part  of  such  commerce,  because  the 
general  language  of  these  provisions 
leaves  it  to  the  judiciary  to  decide 
whether  in  a  given  case  the  particular 
acts  come  within  the  condemnation  of 
the  statute.  Standard  Oil  Co.  v.  United- 
States,  221  U.  S.  1,  55  L.  Ed.  619,  31  S. 
Ct.  502,  affirming  judgment  (C.  C.  1909) 
United  States  v.  Standard  Oil  Co.  of  New 
Jersey,  173  F.  177. 

248-61.  Same  matters  may  or  may  not 
be  brought  under  judicial  cognizance. 
— It  is  within  the  competency  of  con- 
gress, when  legislating  as  to  matters  ex- 
clusively within  us  control,  to  impose 
appropriate  obligations  and  sanction  their 
enforcement  by  reasonable  money  pen- 
alties, without  the  necessity  of  invoking 
the  judicial  power.  Oceanic  Steam  Nav.. 
Co.  V.  Stranahan,  214  U.  S.  320,  53  L> 
Ed.    1013,    29    S.    Ct.    671. 


300 


\^ol.  IV. 


COXSTITUTIOXAL  LAW. 


251-252 


trol  Another — (b)  Independence  of  the  Legislative  Branch — (aa)  Po-d'er  of 
Judiciary  to  Declare  Statutes  l'uconstitutio)ial. — See  note  68. 

Beyond  Power  of  Legislature  to  Make  Statutes  Res  Adjudicata. — The 
state  can  not  make  a  legislative  act  res  adjudicata  by  providing  for  notice  and 
hearing  of  interested  parties  before  the  enactment  of  the  law.  Nor  can  a  citi- 
zen be  deprived  of  the  right  to  resort  to  the  courts  for  the  purpose  of  redressing 
the  prosecution  of  an  act  upon  the  ground  that  he  was  negligent  or  guilty  of 
laches  in  not  appearing  before  the  legislative  body  and  opposing  the  enactment 
of  the  act  of  which  he  complains.  On  the  other  hand,  it  may  be  said  that  a  citi- 
zen has  the  right  to  assume  that  the  legislature  will  proceed  with  due  respect  to 
constitutional  restrictions,  and  may  safely  rest  upon  the  assumption  that  he  is 
not  bound  to  be  continually  on  the  alert  against  the  enactment  of  unconstitu- 
tional legislation,  and  that  he  will  have  the  right,  if  such  legislation  should  be 
enacted,  to  resort  to  the  courts  for  protection  against  the  same.*'^^  For  exam- 
ple, the  making  or  prescribing  of  rates  is  a  legislative  function,  whether  done 
by  the  legislature  or  by  a  state  railroad  or  corporation  commission,  and  the  deci- 
sion or  order  of  such  body  in  prescribing  the  rates  can  not  be  made  res  adjudi- 
cata and  persons,  natural  or  corporate,  deprived  of  the  right  to  resort  to  the 
courts  to  protect  their  constitutional  rights,  by  reason  of  the  fact  that  all  inter- 
ested persons  were  given  notice  and  afforded  opportunity  to  be  heard  before  the 
commission  or  other  legislative  body  in  opposition  to  the  rule  or  order  prescrib- 
ing the  rates  while  the  matter  was  yet  pending  before  such  body.  Such  a  deci- 
sion is  not  judicial,  nor  rendered  in  a  judicial  proceeding,  since  litigation  can 
not  arise  until  after  legislation  out  of  which  it  must  arise  has  been  enacted.^^'' 

Statute  to  Be  Invalidated  Only  in  Clear  Cases. — See  note  69. 


251-68.  Power  and  duty  of  court  to  de- 
clare statute  unconstitutional. — There  can 
be  at  this  day  no  doubt,  on  the.  one  hand, 
that  the  courts,  on  constitutional  grounds, 
may  exercise  the  power  of  refusing  to 
enforce  legislation,  nor,  on  the  other 
hand,  that  that  power  ought  to  be  exer- 
cised onl}^  in  the  clearest  cases.  The 
constitutional  invalidity  should  be  mani- 
fest, and  where  that  invalidity  rests  upon 
disputed  questions  of  fact,  the  invali- 
dating facts  must  be  proved  to  the  satis- 
faction of  the  court.  Knoxville  v.  Knox- 
ville  Water  Co.,  212  U.  S.  1,  53  L.  Ed. 
371,   29    S.   Ct.   148. 

251-68a.  Beyond  power  of  legislature  to 
make  statute  res  adjudicata. — Prentis  z'. 
Atlantic  Coast  Line  Co..  211  U.  S.  210, 
53    L.    Ed.    150,   29    S.    Ct.    67. 

251-68b.  Prentis  v.  Atlantic  Coast  Line 
Co.,  211  U.  S.  210,  53  L.  Ed.  150,  29  S. 
Ct.    67. 

252-69.  Statute  to  be  invalidated  only 
in  clear  cases. — An  act  of  congress  is  not 
to  be  declared  invalid  except  for  reasons 
so  clear  and  satisfactory  as  to  leave  no 
doubt  of  its  unconstitutionality.  To  be 
unconstitutional,  it  is  not  sufficient  that 
a  statute  goes  to  the  verge  of  constitu- 
tional power;  it  must  go  beyond  that 
power,  and  in  case  of  real  doubt  the  law 
must  be  sustained.  El  Paso,  etc.,  R.  Co. 
V.  Gutierrez,  215  U.  S.  87,  54  L.  Ed.  106, 
30  S.  Ct.  21;  Interstate,  etc.,  R.  Co.  v. 
Commonwealth,  207  U.  S.  79,  52  L.  Ed. 
111.  28  S.  Ct.  26;  St.  Louis,  etc.,  R.  Co. 
V.  Taylor,   210   U.   S.   281,   52   L.   Ed.   1061, 


28  S.  Ct.  616;  McLean  v.  Arkansas,  211  U. 
S.  539,  53  L.  Ed.  315,  29  S.  Ct.  206;  Wil- 
liams V.  Arkansas,  217  U.  S.  79,  54  L.  Ed. 
673,  30  S.  Ct.  493;  Home  Tel.,  etc.,  Co. 
V.  Los  Angeles,  211  U.  S.  265,  281,  53  L. 
Ed.  176,  29  S.  Ct.  50;  The  Employers' 
Liability  Cases,  207  U.  S.  463,  52  L.  Ed. 
297,  28  S.  Ct.  141;  New  York,  etc..  R.  Co. 
V.  United  States,  212  U.  S.  481,  53  L.  Ed. 
613,  29  S.  Ct.  304;  S.  C,  212  U.  S.  500, 
53    L.    Ed.    624,   29    S.    Ct.    309. 

Statutes  construed  so  as  to  maintain 
constitutionality — Statutes  susceptible  of 
two  constructions. — Every  statute  is  to 
be  construed  so  as  to  uphold  its  consti- 
tutionality where  it  can  be  done  without 
doing  violence  to  the  language  of  the  act 
itself;  and  where  two  interpretations  of 
a  statute  are  in  reason  admissible,  one 
of  which  creates  a  repugnancj-  to  the 
constitution  and  the  other  avoids  such 
repugnancy,  the  one  which  makes  the 
statute  harmonize  with  the  constitution 
must  be  adopted.  New  York,  etc.,  R. 
Co.  Z-.  United  States,  212  U.  S.  481,  53 
L.  Ed.  613,  29  S.  Ct.  304;  S.  C,  212  U. 
S.  500,  53  L.  Ed.  624,  29  S.  Ct.  309;  The 
Abbey  Dodge,  223  U.  S.  166,  56  L.  Ed. 
390,  32  S.  Ct.  310;  Attorney  General  v. 
Delaware,  etc.,  Co.,  213  U.  S.  366,  407,  53 
L.  Ed.  835,  29  S.  Ct.  527;  Knights,  etc., 
Indemnity  Co.  v.  Jarman.  187  U.  S.  197, 
205,  47  L.  Ed.  139,  23  S.  Ct.  108;  The  Em- 
ployers' Liability  Cases,  207  U.  S.  463, 
501.    52    L.    Ed.   297,   28    S.    Ct.    141. 

The  rule  plainly  must  mean  that  where 
a    statute   is   susceptible   of  two   construc- 


301 


252 


CONSTITUTIONAL  LAW. 


\'ol.  IV. 


Conflict  of  State  with  Federal  Constitution — Acceptance  of  Construc- 
tion of  State  Court. — In  determining  the  constitutionality  of  a  state  law  as 
being  in  conflict  with  the  federal  constitution  or  not,  whether  from  the  stand- 
point of  due  process  of  law  or  otherwise,  the  federal  supreme  court  takes  the 
statute  as  the  state  court  has  construed  it,  and  accepts  it  to  mean  as  a  local  law 
what  the  state  court  says  it  means.  In  other  words,  whatever  may  be  the  seem- 
ing effect  of  the  statutes  upon  its  face,  or  whatever  construction  the  federal  su- 
preme court  might  have  placed  upon  it  independent  of  the  construction  given  by 
the  state  court,  it  will  not  be  held  invalid  as  being  in  conflict  with  the  federal 
constitution  or  with  the  laws  and  treaties  made  under  the  authority  thereof,  if 
it  has  been  construed  by  the  state  court  in  such  a  manner  as  to  remove  any  ap- 
parent conflict  with  the  federal  constitution,  or  with  the  laws  and  treaties  made 
under  the  authority  thereof. "^^ 


tions,  b}'  one  of  which  grave  and  doubt- 
ful constitutional  questions  arise  and  by 
the  other  of  which  such  questions  are 
avoided,  the  duty  of  the  federal  supreme 
court  is  to  adopt  the  latter.  Attorney 
General  v.  Delaware,  etc.,  Co.,  213  U.  S. 
366,  53  L.  Ed.  835,  29  S.  Ct.  527;  Harri- 
man  v.  Interstate  Commerce  Comm.,  211 
U.   S.   407,   53    L.    Ed.   253,   29   S.   Ct.   115. 

But  this  does  not  imply  if  the  text  of 
an  act  is  unambiguous  that  it  maj'  be 
rewritten  to  accomplish  that  purpose. 
The  Employers'  Liability  Cases,  207  U. 
S.   463,   52   L.    Ed.   297,   28   S.    Ct.    141. 

It  is  the  court's  duty  to  uphold  a  stat- 
ute when  it  is  fairly  susceptible  of  two 
interpretations,  one  which  will  uphold  its 
constitutionality,  and  the  other  defeat  it, 
though  the  former  be  the  less  natural. 
(U.  S.  Sup.,  Pa.,  1909)  Attorney  General 
V.  Delaware,  etc.,  Co.,  213  U.  S.  366,  53 
L.  Ed.  835,  29  S.  Ct.  527,  reversing  judg- 
ment   (C.   C.    1908)    164    F.    215. 

Not  sufficient  that  possible  evil  or  in- 
justice may  result  from  operation  of  stat- 
ute.— It  is  not  sufficient  to  invalidate  a 
statute  that  possible  evil  or  injustice  may 
result  from  its  operation.  Constitutional 
law,  it  is  said,  like  all  mortal  contrivances, 
must  take  some  chances,  and  statutes  are 
not  to  be  invalidated  because  of  the  pos- 
sibility that  hard  cases  may  arise  there- 
under. Attorney  General  v.  Delaware, 
etc.,  Co.,  213  U.  S.  366,  53  L.  Ed.  835,  29 
S.  Ct.  527;  The  Employers'  Liability 
Cases,  207  U.  S.  463,  52  L.  Ed.  297,  28 
S.  Ct.  141;  Waters-Pierce  Oil  Co.  v. 
Deselms,  212  U.  S.  159,  53  L.  Ed.  453,  29 
S.  Ct.  270;  American  Land  Co.  v.  Zeiss, 
219  U.  S.  47,  55  L.  Ed.  82,  31  S.  Ct.  200; 
Blinn  v.  Nelson,  222  U.  S.  1,  56  L.  Ed. 
65,    32    S.    Ct.    1. 

Thus  the  Oklahoma  Act,  Laws  1899, 
p.  186,  §  2,  excluding  from  the  territory 
illuminating  fluids  which  have  a  specific 
gravity  above  46  degrees  Baume,  was 
held  not  to  be  unconstitutional  because 
of  the  possibility  that  it  might  operate 
to  exclude  some  oils  which  were  as  safe 
for  use  as  those  which  complied  with  the 
statutory     standard.       Waters-Pierce     Oil 


Co.  V.    Deselms,    212  U.    S.  159.    53  L.    Ed. 
453,  29   S.   Ct.   270. 

If  the  legislature  thinks  that  a  year  is 
long  enough  to  allow  a  party  to  recover 
his  property  from  a  third  hand,  and  es- 
tablishes that  time  in  cases  where  he  has 
not  been  heard  of  for  fourteen  years,  and 
presumably  is  dead,  it  acts  within  its  con- 
stitutional discretion.  Xow  and  then  an 
extraordinary  case  may  turn  up,  but  con- 
stitutional law,  like  other  mortal  con- 
trivances, has  to  take  some  chances,  and 
in  the  great  majority  of  cases,  no  doubt, 
justice  will  be  done.  Blinn  v.  Nelson, 
222   U.   S.    1,   56   L.   Ed.   65,   32    S.    Ct.    1. 

To  argue  that  the  provisions  of  a  stat- 
ute are  repugnant  to  the  due  process 
clause  because  a  case  may  be  conceived 
where  rights  in  and  to  property  would 
be  adversely  affected  without  notice  be- 
ing actually  conveyed  by  the  proceed- 
ings is,  in  effect,  to  deny  the  power  of 
the  state  to  deal  with  the  subject.  The 
criterion  is  not  the  possibility  of  con- 
ceivable injury,  but  the  just  and  reason- 
able character  of  the  requirements,  hav- 
ing reference  to  the  subject  with  which 
the  statute  deals.  American  Land  Co.  v. 
Zeiss,  219  U.  S.  47,  55  L.  Ed.  82,  31  S. 
Ct.    200. 

Where  statute  may  or  may  not  be 
within  legislative  authority  according  to 
circumstances. — It  is  a  well  settled  rule 
of  constitutional  exposition  that  if  a  stat- 
ute may  or  may  not  be,  according  to  cir- 
cumstances, within  the  limits  of  legis- 
lative authority,  the  existence  of  the  cir- 
cumstances necessary  to  support  it  must 
be  presumed.  Home  Tel.  Co.  v.  Los 
Angeles,  211  U.  S.  265,  281,  53  L.  Ed.  176, 
29    S.    Ct.    50. 

State  enactments — As  being  in  conflict 
with  the  state  constitution. — See  ante, 
"State  Constitutions,''  III,  A,  2. 

252-69a.  Conflict  of  state  law  with  fed- 
eral constitution — Acceptance  of  con- 
struction of  state  court. — Kentucky  Union 
Co.  V.  Commonwealth,  219  U.  S.  140,  55 
L.  Ed.  137,  31  S.  Ct.  171;  Brodnax  v.  Mis- 
souri, 219  U.  S.  285.  55  L.  Ed.  219,  31  S. 
Ct.   238;    Palmer   v.   Texas,   212   U.    S.    118, 


302 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


252-254 


Same — Limitations  of  Doctrine — Bailey  v.  Alabama. — Uut  while  it  has 
been  generally  held  that  the  supreme  court  of  the  United  States,  in  determining 
whether  a  state  law  is  in  conflict  with  any  provision  of  the  federal  constitution 
will  accept,  as  a  part  thereof,  the  construction  placed  upon  the  same  by  the  state 
court,  this  doctrine  received  a  severe  jolt  in  the  case  of  Bailey  %'.  Alabama,  219  U 
S.  219,  55  L.  Ed.  191,  31  S.  Ct.  145,  in  which  Mr.  Justice  Hughes,  delivering  the 
opinion  of  the  majority  of  the  court,  held  that  the  Alabama  statute  making  it  a 
crime  for  any  person  to  contract  for  labor  and  services  of  another  and  receive 
advances  in  money  or  property  with  the  intention  of  defrauding  such  other  out 
of  such  advances,  and  making  the  failure  to  perform  the  contract  or  to  refund  the 
advances  without  just  cause  prima  facie  evidence  of  such  fraudulent  intent,  was 
not  relieved  of  this  objectionable  feature  by  the  ruling  of  the  state  court  to  the 
effect  that  the  jury  was  not  controlled  by  the  presumption  even  though  unre- 
butted  and  migh.t  still  find  the  accused  not  guilty,  even  in  the  absence  of  evidence 
tending  to  rebut  the  statutory  presumption. "''''' 

Court   Will   Not   Volunteer   an   Opinion   as   to   Constitutionality. — See 
note  70. 


131,  53  L.  Ed.  435,  29  S.  Ct.  230;  Collins 
V.  Texas,  223  U.  S.  288,  56  L.  Ed.  439.  32 
S.  Ct.  286;  Lindsley  v.  Natural  Carbonic 
Gas  Co.,  220  U.  S.  61,  55  L.  Ed.  369,  31 
S.  Ct.  337,  citing  Weightman  v.  Clark, 
103  U.  S.  256,  260,  26  L.  Ed.  392;  IMorley 
V.  Lake  Shore,  etc.,  R.  Co.,  146  U.  S.  162, 
166,  36  L.  Ed.  925,  13  S.  Ct.  54;  Olsen  v. 
Smith,  195  U.  S.  332,  342,  49  L.  Ed.  224, 
25  S.  Ct.  52.     See  post,  COURTS. 

For  example,  the  construction  placed 
by  the  highest  court  of  the  state  upon 
N.  Y.  Laws  1908,  chap.  429.  enacted  to 
safeguard  natural  mineral  springs  against 
waste  and  impairment,  must  be  accepted 
by  the  federal  courts  in  determining  the 
validity  of  such  statute  under  the  federal 
constitution.  Lindsley  c'.  Natural  Car- 
bonic Gas  Co.,  220  U.  S.  61,  55  L.  Ed. 
369,    31    S.    Ct.    337. 

The  ruling  of  the  state  court  that 
osteopaths  are  persons  practicing  medi- 
cine, within  the  meaning  of  Tex.  Laws 
1907,  chap.  123,  providing  for  licensing 
and  registering  medical  practitioners,  will 
be  followed  by  the  federal  supreme  court 
in  determining  the  constitutionality  of 
such  statute  on  writ  of  error  to  the  state 
court.  Collins  v.  Texas,  223  U.  S.  288.  56 
L.    Ed.   439,   32    S.    Ct.   286. 

The  objection  that  the  retrospective 
features  of  the  act  of  Ky.,  March  15,  1906, 
c.  22,  art.  3,  forfeiting  land  titles  for  fail- 
ure to  list  and  pay  taxes,  make  the  law 
an  ex  post  facto  one,  is  not  valid,  since 
such  legislation,  as  construed  by  the  high- 
est court  of  the  state,  imposes  no  retro- 
spective penalties  or  punishment  of  a 
criminal  nature.  Kentucky  Union  Co.  v. 
Commonwealth,  219  U.  S.  140,  55  L.  Ed. 
137.    31    S.    Ct.    171. 

The  validity  of  Kentucky  Acts  1904, 
chap.  85,  so  far  as  it  prohibits  domestic 
corporations  from  teaching  white  and 
negro   pupils   in   the    same  institution,   can 


not  be  deemed  affected  by  its  possible 
invalidity  under  the  federal  constitution 
as  to  individuals,  where  the  highest  state 
court  considers  the  act  separable,  and, 
while  sustaining  it  as  an  entirety,  gives 
an  independent  reason  which  applies  only 
to  corporations.  In  other  words  since 
the  state  court  held  that  corporations 
are  not  entitled  to  all  the  privileges  and 
immunities  to  which  individuals  are  en- 
titled and  that  although  the  statute,  as 
applied  to  individuals  might  be  invalid, 
yet  if  it  was  separate,  it  would  be  upheld 
as  to  corporations.  Berea  College  v. 
Commonwealth,  211  U.  S.  45,  53  L.  Ed. 
81,   29    S.   Ct.   33. 

252-69b.  Same — Limitations  of  doc- 
trine— Bailey  v.  Alabama. —  Bailey  v.  Ala- 
bama, 219  U.  S.  219,  55  L.  Ed.  191.  31  S. 
Ct.    145. 

Speaking  upon  this  point  ^Ir.  Justice 
Hughes  says:  "But  the  controlling  con- 
struction of  the  statute  is  the  affirmance 
of  this  judgment  of  conviction.  It  is  not 
sufficient  to  declare  that  the  statute  does 
not  make  it  the  duty  of  the  jury  to  con- 
vict, where  there  is  no  other  evidence  but 
the  breach  of  the  contract  and  the  failure 
to  pay  the  debt.  The  point  is  that,  in 
such  a  case,  the  statute  authorizes  the 
jury  to  convict.  It  is  not  enough  to  say 
that  the  jury  may  not  accept  that  evi- 
dence as  alone  sufficient;  for  the  jury 
may  accept  it,  and  they  have  the  express 
warrant  of  the  statute  to  accept  it  as  z 
basis  for  their  verdict.  And  it  is  in  this 
light  that  the  validity  of  the  statute  must 
be  determined."  Bailev  v.  Alabama.  219 
U.    S.    219,    55    L.    Ed.    191,   31    S.    Ct.    145. 

254-70.  Court  will  not  volunteer  opin- 
ion as  to  constitutionality — Point  must 
be  directly  involved. — Xo  objections  to 
the  validity  of  a  statute  will  be  consid- 
ered which  do  not  properly  arise  in  the 
case    before    the    court.      Flint    v.    Stone 


303 


255 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


Statutes  Void  in  Part  and  Valid  in  Part. — See  post,  Statutes. 
(bb)      Judicial    Control    of    Lcgislatizfe    Discretion — (aaa)      Generally. — See 
note  75. 


Tracy    Co.,   220    U.    S.    107,    55   L.    Ed.    389, 
31   S.   Ct.  342. 

The  federal  supreme  court  will  not 
undertake  to  decide  the  constitutionality 
of  a  statute  upon  a  point  not  presented 
by  the  record;  in  other  words,  where  no 
case  is  presented  involving  the  question 
which  it  sought  to  have  determined. 
Flint  V.  Stone  Tracy  Co.,  220  U.  S.  lOT, 
55  L.  Ed.  389,  31  S.  Ct.  342.  See,  also, 
Willcox  V.  Consolidated  Gas  Co.,  212  U. 
S.  19,  53,  53  L.  Ed.  382,  29  S.  Ct.  192; 
Southern  R.  Co.  v.  King,  217  U.  S.  524, 
525,  54  L.  Ed.  868,  30  S.  Ct.  594;  Western 
Union  Tel.  Co.  v.  Crovo,  220  U.  S.  364, 
55  L.  Ed.  498,  31  S.  Ct.  399;  Waters-Pierce 
Oil  Co.  V.  Deselms,  212  U.  S.  159,  53  L. 
Ed.  453,  29  S.  Ct.  270. 

The  federal  supreme  court  will  not 
consider  the  question  of  the  constitution- 
ality of  the  clause  of  Hepburn  Act  June 
29,  1906,  c.  3591,  34  Stat.  584  (U.  S.  Comp. 
St.  Supp.  1907,  p.  892),  imposing  penalties 
for  violations  of  its  provisions  forbidding 
railway  carriers  from  transporting  in  in- 
terstate commerce  commodities  with 
which  they  are  associated  or  in  which 
they  are  interested,  in  an  action  seeking 
to  enforce  such  provisions  by  injunction 
or  mandamus,  in  which  no  recovery  of 
penalties  is  sought.  Judgment  (C.  C. 
1908)  164  F.  215,  reversed.  Attorney  Gen- 
eral V.  Delaware,  etc.,  Co.,  213  U.  S.  366, 
53  L.  Ed.  835,  29  S.  Ct.  527. 

The  constitutionality  of  an  ordinance 
prescribing  rates  can  not  be  attacked 
upon  the  ground  that  under  the  charter 
of  a  city,  such  ordinances  upon  the  peti- 
tion of  15  per  cent  of  the  electors  of  the 
city  are  required  to  be  submitted  to  the 
people  for  adoption  or  rejection,  where 
the  ordinance  in  question  was  not  adopted 
in  that  manner.  Home  Tel.,  etc.,  Co.  v. 
Los  Angeles.  211  U.  S.  265,  280,  53  L. 
Ed.    176,  29   S.    Ct.   50. 

255-75.  Judicial  control  of  legislative 
discretion — Wisdom,  policy,  justice  or 
expediency,  etc.,  of  legislation — Abuse  of 
power,  etc. — Courts  have  no  responsibil- 
ity for  the  justice,  wisdom,  policy  or 
expediency  of  legislation,  and  no  duty  ex- 
cept to  enforce  the  law  as  it  is  written, 
unless  it  is  clearlj'^  beyond  the  constitu- 
tional power  of  the  law  making  body. 
The  legislature  being  familiar  with  local 
conditions,  is  primarily  the  judge  of  the 
necessity  of  its  enactments,  and  the  mere 
fact  that  a  court  may  differ  with  the  leg- 
islature in  its  views  of  public  policy,  or 
that  judges  may  hold  views  inconsistent 
with  the  propriety  of  the  legislation  in 
question,    affords    no    ground    for    judicial 


interference,  unless  the  act  in  question  is 
unmistakably  and  palpably  in  excess  of 
the  legislative  power.  McLean  v.  Arkan- 
sas, 211  U.  S.  539,  53  L.  Ed.  315,  29  S.  Ct. 
206;  Jacobson  v.  Massachusetts,  197  U. 
S.  11,  49  L.  Ed.  643,  25  S.  Ct.  358;  Mugler 
V.  Kansas,  123  U.  S.  623,  31  L.  Ed.  205, 
8  S.  Ct.  273;  Williams  v.  Arkansas,  217 
U.  S.  79,  54  L.  Ed.  673,  30  S.  Ct.  493;  St. 
Louis,  etc.,  R.  Co.  v.  Taylor,  210  U.  S. 
281.  52  L.  Ed.  1061,  28  S.  Ct.  616. 

The  policy,  wisdom,  justice  and  fair- 
ness of  a  state  statute  is  not  subject  to 
review  or  criticism  by  the  federal  su- 
preme court.  That  court  is  not  invested 
with  the  jurisdiction  to  pass  upon  the 
expediency,  wisdom,  or  justice  of  the 
laws  of  the  states  as  declared  by  their 
courts,  but  only  to  determine  their  con- 
formity with  the  federal  constitution  and 
the  paramount  laws  enacted  pursuant  to 
it.  Hunter  v.  Pittsburgh,  207  U.  S.  161, 
.■)2  L.  Ed.  151,  28  S.  Ct.  40;  Twining  v. 
Xew  Jersey,  211  U.  S.  78,  53  L.  Ed.  97, 
29    S.    Ct.    14. 

The  scope  of  judicial  inquiry  in  decid- 
ing the  question  of  power  is  not  to  be 
confused  with  the  scope  of  legislative 
considerations  in  dealing  with  the  matter 
of  policy.  Whether  the  enactment  is 
wise  or  unwise,  whether  it  is  based  on 
sound  economic  theory,  whether  it  is  the 
best  means  to  achieve  the  desired  result, 
whether,  in  short,  the  legislative  discre- 
tion within  its  prescribed  limits  should 
be  exercised  in  a  particular  manner,  are 
matters  for  the  judgment  of  the  legisla- 
ture, and  the  earnest  conflict  of  serious 
opinion  does  not  suffice  to  bring  them 
within  the  range  of  judicial  cognizance. 
Chicago,  etc.,  R.  Co.  v.  McGuire,  219  U. 
S.    549,    55    L.    Ed.    328,    31    S.    Ct.    259. 

The  legislature,  provided  it  acts  within 
its  constitutional  authority,  is  the  arbiter 
of  the  public  policy  of  the  state.  While 
the  court,  unaided  by  legislative  declara- 
tion, and  applying  the  principles  of  the 
common  law,  may  uphold  or  condemn 
contracts  in  the  light  of  what  is  con- 
ceived to  be  public  policy,  its  determina- 
tion as  a  rule  for  future  action  must  yield 
to  the  legislative  will  when  expressed  in 
accordance  with  the  organic  law.  Chi- 
cago, etc.,  R.  Co.  V.  McGuire,  219  U.  S. 
549,    55    L.    Ed.    328,    31    S.    Ct.    259. 

In  testing  the  constitutionality  of  an 
act  the  court  must  confine  itself  to  the 
power  to  pass  it,  and  may  not  consider 
evils  which  it  is  supposed  will  arise  from 
the  execution  of  the  law,  whether  they 
be  real  or  imaginary.  The  Employers' 
Liability  Cases,  207  U.  S.  463,  52  L.  Ed. 
297,   28   S.-  Ct.   141;   Waters-Pierce  Oil   Co. 


304 


Vol.  I\' 


CONSTITUTIONAL  LAW. 


260-269 


(bbb )    Legislative  Discretion  as  to  Occasion  or  Necessity,  Choice  of  Means, 
etc. — See  notes  78,  88. 

(cc)    Motives  of  Legislature  Not  Subject  to  Judicial  Enquiry. — See  note  23. 


V.  Deselms,  212  U.  S.  159,  53  L.  Ed.  453, 
29    S.    Ct.    270. 

]Mere  suggestions  of  inconvenience  or 
harm  are  wholly  irrelevant,  as  they  can 
not  be  allowed  to  influence  the  court  in 
determining  the  question  of  the  consti- 
tutional power  of  congress  to  enact  a 
law.  Attorney  General  v.  Delaware,  etc.. 
Co.,  213  U.  S.  366,  53  L.  Ed.  835.  29  S. 
Ct.    527. 

That  because  of  possible  results,  a 
power  lawfully  exercised  may  work  dis- 
astrously, is  no  reason  why  the  courts 
must  interfere  to  prevent  its  exercise,  be- 
cause of  the  consequences  feared.  No 
such  authority  has  ever  been  invested  in 
any  court.  The  remedy  for  such  wrongs, 
if  such  in  fact  exist,  is  in  the  abilitj^  of 
the  people  to  choose  their  own  repre- 
sentatives, and  not  in  the  exertion  of  un- 
warranted powers  by  courts  of  justice. 
Flint  V.  Stone  Tracy  Co.,  220  U.  S.  107, 
55   L.   Ed.   389,   31   S.   Ct.   342. 

Abuse  of  power. — The  principle  that 
the  power  to  tax  is  the  power  to  destroy 
is  pertinent  only  when  there  is  no  power 
to  tax  a  particular  subject,  and  has  no 
relation  to  a  case  where  such  right  ex- 
ists. Flint  V.  Stone  Tracy  Co.,  220  U.  S. 
107.  55  L.  Ed.  389.  31  S.  Ct.  342,  quoting 
Knowlton  v.  Moore,  178  U.  S.  41,  60,  44 
L.    Ed.    969,    20    S.    Ct.    747. 

In  other  words,  the  power  to  destroy, 
which  may  be  the  consequence  of  taxa- 
tion, is  a  reason  why  the  right  to  tax 
should  be  confined  to  '  subjects  which 
may  be  lawfully  embraced  therein,  even 
though  it  happens  that  in  some  partic- 
ular instance  no  great  harm  rnay  be 
caused  by  the  exercise  of  the  taxing  au- 
thority as  to  a  subject  which  is  bej'ond 
its  scope.  But  this  reasoning  has  no  ap- 
plication to  a  lawful  tax.  for  if  it  had, 
there  would  be  an  end  of  all  taxation; 
that  is  to  say.  if  a  lawful  tax  can  be  de- 
'feated  because  the  power  which  is  mani- 
fested by  its  imposition  may,  when  fur- 
ther exercised,  be  destructive,  it  would 
follow  that  every  lawful  tax  would  be- 
come unlawful,  and  therefore  no  taxation 
whatever  could  be  levied.  Flint  v.  Stone 
Tracy  Co.,  220  U.  S.  .  107.  55  L.  Ed.  389, 
31  S.  Ct.  342.  quoting  Knowlton  v.  Moore, 
178  U.  S.  41,  60,  44  L.  Ed.  969,  20  S.  Ct. 
747. 

The  federal  supreme  court  can  not  set 
aside  legislation  because  it  is  harsh. 
Shevlin-Carpenter  Co.  z:  Minnesota,  218 
U.    S.    57,    54    L.    Ed.    930,    30  _S.    Ct.    663. 

260-78.  Legislative  discretion  as  to  oc- 
casion, necessity,  choice  of  means,  etc. — 
See,  also,  ante,  "Generally,"  VI,  D,  3,  4- 
(4),  (b),  (bb),  (aaaV 

12  U   S   Enc— 20  305 


Although  the  means  employed  by  the 
state  to  accomplish  an  object  which  it  is 
entitled  to  accomplish  may  be  deemed  un- 
wise and  inexpedient  and  not  the  best  or 
most  efYective  which  might  have  been  em- 
ployed, they  will  not  be  condemned  or 
disregarded  by  the  courts  if  they  have  a 
real  relation  to  that  object.  Chicago,  etc., 
R.  Co.  V.  Arkansas,  219  U.  S.  453,  55  L.  Ed. 
290,  31  S.  Ct.  275. 

Although  there  may  be  room  for  contro- 
versy as  to  whether  a  state  law  is  neces- 
sary, yet  if  it  can  not  be  said  that  it  was  so 
unreasonable  as  to  justify  the  court  in  ad- 
judging that  it  is  merely  an  arbitrary  ex- 
ercise of  power  and  not  germane  to  the 
objects  which  the  legislature  had  in  view, 
it  is  a  valid  enactment  and  can  not  be  de- 
clared unconstitutional  bj'  the  federal 
courts.  Chicago,  etc..  R.  Co.  v.  Arkansas. 
219  U.   S.  453,  'oo  L.   Ed.  290,  31   S.   Ct.  275. 

261-88.  Congress  permitted  a  wide  dis- 
cretion.— If  a  federal  statute  imposing  a 
lax  is  within  the  legitimate  powers  of 
congress,  it  is  for  that  body  to  determine 
what  means  are  appropriate  and  adapted 
to  the  purpose  of  making  the  law  effectual. 
In  this  connection  the  often-quoted  dec- 
laration of  Chief  Justice  Marshall  in  Mc- 
Culloch  V.  Marj^land,  4  Wheat.  316,  421,  4 
L.  Ed.  579,  is  appropriate:  "Let  the  end 
be  legitimate,  let  it  be  within  the  scope  of 
the  constitution,  and  all  means  which  are 
appropriate,  which  are  plainly  adapted  to 
that  end,  which  are  not  prohibited,  but 
consist  with  the  letter  and  spirit  of  the 
constitution,  are  constitutional."  Flint  z'. 
Stone  Tracy  Co.,  220  U.  S.  107,  55  L.  Ed. 
389.  31   S.  Ct.  342. 

269-23.  Motives  of  legislature  not  sub- 
ject to  judicial  enquiry. — The  power,  and 
not  the  motive,  is  the  test  to  be  resorted 
to  for  the  purpose  of  determining  the  con- 
stitutionality of  legislative  action.  If  a 
statute  is  enacted  in  due  form,  the  courts 
will  not  enquire  into  the  knowledge,  negli- 
gence, methods  or  motives  of  the  legisla- 
ture. Hammond  Packing  Co.  v.  Arkansas, 
212  U.  S.  322.  343.  53  L.  Ed.  530,  29  S.  Ct. 
370;  Calder  v.  Attornev  General.  218  U.  S. 
591,  54  L.  Ed.  1163,  31  S.  Ct.  122;  United 
States  V.  Des  Moines,  etc.,  R.  Co..  142  U. 
S.  510,  544,  35  L.  Ed.  1099,  12  S.  Ct.  308. 

The  knowledge,  negligence,  methods,  or 
motives  of  the  legislature  will  not  be  in- 
quired into  by  the  courts  in  determining 
the  validity  of  a  statute  repealing  a  cor- 
porate charter,  if  the  statute  is  passed  in 
due  form.  Calder  f.  Attorney  General.  218 
U.   S.  501.  54  L.  Ed.  1163.  31    S.  Ct.  122. 

Motives  of  persons  who  procured  enact- 
ment of  legislation. — Tiie  constitution- 
ality of  statutes  will  not  be  judged  by  the 


271-277 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


Limitation  of  Doctrine. — See  note  25. 

(ff)  Where  Statute  Othcnvisc  Unobjectionable  Is  Unfaithfully  Adininis- 
tered. — Statute  Not  Invalidated  because  of  Mere  Possibility  of  Evil  Ad- 
ministration.— See  ante,  "J^-^dicial  Control  of  Legislative  Discretion,"  VI,  D, 
3,  d,   (4),   (b),   (bb),  et  seq. 

(c)  Independence  of  the  Executive — (bb)  Judicial  Control  of  the  Executive — 
(aaa)    The  Federal  Executive  and  His  Subordinates. — See  notes  40,  42,  47. 


motives  and  purposes  of  those  who  per- 
suaded the  legislature  to  enact  them.  Polk 
V.  Mutual,  etc.,  Life  Ass'n,  207  U.  S.  310. 
52  L.  Ed.  222,  28  S.  Ct.  65. 

271-25.  Limitations  of  doctrine. — In 
Mugler  V.  Kansas,  123  U.  S.  623,  661,  31  L. 
Ed.  205,  8  S.  Ct.  273,  it  was  said  that  the 
courts,  when  determining  whether  a  stat- 
ute is  consistent  with  the  fundamental 
law,  must  not  deem  themselves  bound  by 
mere  forms,  nor  are  they  to  be  misled  by 
mere  pretenses.  They  are  at  liberty,  in- 
deed, are  under  a  solemn  duty,  to  look  at 
the  substance  of  things,  whenever  they  en- 
ter upon  the  inquiry  whether  the  legisla- 
ture has  transcended  the  limits  of  its  au- 
thority. Western  Union  Tel.  Co.  v.  Cole- 
man, 216  U.  S.  1,  54  L.  Ed.  355,  30  S.  Ct. 
190. 

But  the  courts  will  not  lightly  attribute 
improper  motives  to  the  lawmaking  power. 
Red  "C"  Oil  Mfg.  Co.  v.  Board,  222  U.  S. 
380,  56  L.  Ed.  240,  32  S.  Ct.  152;  Florida, 
etc.,  R.  Co.  V.  Reynolds,  183  U.  S.  471,  46 
L.  Ed.  283,  22  S.  Ct.  176;  Ellis  v.  United 
States,  206  U.  S.  246,  51  L.  Ed.  1047,  27  S. 
Ct.  600. 

276-40.  Other  officers — Interstate  com- 
merce commission. — The  courts  can  not, 
imder  the  guise  of  exerting  judicial  power, 
usurp  merely  administrative  functions  by 
setting  aside  an  order  of  the  interstate 
commerce  commission  within  the  scope  of 
the  power  delegated  to  such  commission, 
upon  the  ground  that  such  power  was  un- 
wisely or  inexpediently  exercised.  De- 
cree, Chicago,  &  A.  R.  Co.  v.  Interstate 
Commerce  Commission  (C.  C.  1908),  173 
F.  930,  reversed.  Interstate  Commerce 
Comm.  V.  Illinois  Cent.  R.  Co.,  215  U.  S. 
452,  54  L.  Ed.  280,  30  S.  Ct.  155;  Interstate 
Commerce  Comm.  v.  Chicago,  etc.,  R.  Co.. 
215  U.  S.  479,  54  L-   Ed.  291,  30  S.  Ct.  163. 

276-42.  As  to  absolute  and  ministerial 
duties. — Since  Marbury  z;.  Madison,  1 
Cranch  137,  2  L.  Ed.  60,  it  has  been  held 
that  there  is  a  distinction  between  those 
acts  which  require  the  exercise  of  discre- 
tion or  judgment  and  those  which  are 
purely  ministerial,  or  are  undertaken  with- 
out authority,  which  may  become  the  sub- 
ject of  review  in  the  courts.  Garfield  v. 
Goldsby,  211  U.  S.  249,  261,  53  L.  Ed.  168, 
29  S.  Ct.  62,  following  in  Garfield  v.  Alli- 
son, 211  U.  S.  264,  53  L.  Ed.  176,  29  S. 
Ct.  67. 

Mandamus  to  compel  restoration  of 
names  illegally  stricken  from  Indian  land 
enrollment. — Thus,  where  pursuant  to  an 


act  of  congress  the  name  of  an  Indian  has 
been  certified  by  the  Dawes  commission 
as  one  found  to  be  entitled  to  enrollment 
for  distribution,  and  such  list  has  been  ap- 
proved by  the  secretary  of  the  interior  and 
the  roll  made  up  and  distributed  as  re- 
quired by  statute,  the  land  allotted  and  a 
certificate  therefor  awarded  to  such  en- 
rolled Indian,  as  provided  by  §  23  of  act 
of  July  1,  1902,  such  Indian  has  acquired 
a  valuable  right  and  the  secretary  of  in- 
terior has  no  power  to  strike  down  with- 
out notice  and  having  the  rights  thus  ac- 
quired by  striking  such  name  from  the 
rolls.  Such  action  on  the  part  of  the  sec- 
retary is  without  due  process  of  lav,',  and 
mandamus  will  lie  to  compel  restoration  of 
the  name.  Garfield  v.  Goldsby,  211  U. 
S.  249,  53  L.  Ed.  168,  29  S.  Ct.  62;  Garfield 
V.  Allison,  211  U.  S.  264,  53  L.  Ed.  176.  29 
S.  Ct.  67. 

277-47.  Injunction  against  secretary  of 
war — Enforcement  of  unconstitutional  act 
— Enjoining  criminal  proceedings. — The 
exemption  of  the  United  States  from  suit 
does  not  preclude  an  action  to  prevent  the 
secretary  of  war  from  causing  criminal 
proceedings  to  be  instituted  against  a  ri- 
parian owner  because  of  the  reclamation 
and  occupation  of  his  land  outside  the  pre- 
scribed harbor  limits,  if  his  rights  of  prop- 
erty were  wrongfully  invaded  in  fixing 
such  limits.  Philadelphia  Co.  v.  Stimson, 
223  U.  S.  605,  56  L.  Ed.  570,  32  S.  Ct.  340. 

One  whose  property  rights  have  been 
invaded  in  fixing  harbor  lines  may  main- 
tain an  action  to  restrain  the  secretary  of 
war  from  causing  threatened  criminal  pro- 
ceedings to  be  instituted  against  him  in 
accordance  with  the  provisions  of  the  act 
of  congress  of  March  3,  1889  (30  Stat,  at 
L.  1121,  1151-1153.  chap.  425,  U.  S.  Comp. 
Stat.  1901,  pp.  3541,  3542,  3544),  §§  11,  12, 
117,  for  undertaking  the  reclamation  and 
occupation  of  land  belonging  to  him  be- 
yond the  prescribed  harbor  limits.  Phil- 
adelphia Co.  V.  Stimson,  223  U.  S.  605,  56 
L.  Ed.  570,  32  S.  Ct.  340. 

If  the  conduct  of  the  defendant  consti- 
tutes an  unwarrantable  interference  with 
property  of  the  complainant,  its  resort  to 
equity  for  protection  is  not  to  be  defeated 
upon  the  ground  that  the  suit  is  one 
against  the  United  States.  The  exemp- 
tion of  the  United  States  from  suit  does 
not  protect  its  officers  from  personal  lia- 
bility to  persons  whose  rights  of  property 
they  have  wrongfully  invaded.  Philadel- 
phia   Co.  V.    Stimson,  223  U.    S.  605,  56    L. 


306 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


278 


(bbb)    State  Executive  Officers. — Injunction  to  Prevent  Enforcement  of 
Unconstitutional  Act. — See  note  52. 


Ed.  570,  32  S.  Ct.  340;  The  Flying  Fish,  2 
Cratich  170,  2  L.  Ed.  243;  United  States  v. 
Lee,  106  U.  S.  196,  221,  27  L.  Ed.  171,  1  S. 
Ct.  240;  Belknap  v.  Schild,  161  U.  S.  10,  18, 
40  L.  Ed.  599,  16  S.  Ct.  443;  Tindal  v.  Wes- 
ley, 167  U.  S.  204,  42  L.  Ed.  137,  17  S.  Ct. 
770;  Scranton  v.  Wheeler,  179  U.  S.  141, 
152,  45  L.  Ed.  126,  21  S.  Ct.  48. 

278-52.  Enjoining  enforcement  of  un- 
constitutional law  —  Enjoining  criminal 
proceedings. — A  court  of  equity,  said  this 
court  In  re  Sawyer,  124  U.  S.  200,  210,  31 
L.  Ed.  402,  8  S.  Ct.  482,  "has  no  jurisdic- 
tion over  the  prosecution,  the  punishment, 
or  the  pardon  of  crimes  or  misdemeanors. 
*  *  --;•  Xo  assume  such  a  jurisdiction,  or  to 
sustain  a  bill  on  equity  to  restrain  or  re- 
lieve against  proceedings  for  the  punish- 
ment of  offenses,  *  *  *  is  to  invade  the  do- 
main of  the  courts  of  common  law,  or  of 
the  executive  and  administrative  depart- 
ment of  the  government."  Harkrader  v. 
Wadley,  172  U.  S.  148,  170.  43  L.  Ed.  399, 
19  S.  Ct.  119;  Fitts  V.  McGhee,  172  U.  S. 
516,  531,  43  L.  Ed.  535,  19  S.  Ct.  269;  2 
Story,  Eq.  Jur.,  §  893.  .But  a  distinction 
obtains  when  it  is  found  to  be  essential  to 
the  protection  of  the  property  rights,  as 
to  which  the  jurisdiction  of  a  court  of 
equity  has  been  invoked,  that  it  should 
restrain  the  defendant  from  instituting 
criminal  actions  involving  the  same  legal 
questions.  This  is  illustrated  in  the  de- 
cisions of  the  federal  supreme  court  in 
which  officers  have  been  enjoined  from 
bringing  criminal  proceedings  to  compel 
obedience  to  unconstitutional  require- 
ments. Davis,  etc.,  Mfg.  Co.  v.  Los  Ange- 
les, 189  U.  S.  207,  218,  47  L.  Ed.  782,  23  S. 
Ct.  498;  Dobbins  v.  Los  Angeles,  195  U.  S. 
223,  241,  49  L.  Ed.  169,  25  S.  Ct.  18;  Ex 
pai-te  Young,  209  U.  S.  123,  162.  52  L.  Ed. 
714,  28  S.  Ct.  441;  Western  Union  Tel.  Co. 
V.  Andrews,  216  U.  S.  165,  54  L.  Ed.  430, 
30  S.  Ct.  286.  In  this,  there  is  no  attempt 
to  restrain  a  court  from  trying  persons 
charged  with  crime,  or  the  grand  jury 
from  the  exercise  of  its  functions,  but  the 
injunction  binds  the  defendant  not  to  re- 
sort to  criminal  procedure  to  enforce  il- 
legal demands.  Philadelphia  Co.  v.  Stim- 
son,  223  U.  S.  605.  56  L.  Ed.  570,  32  S.  Ct. 
340. 

Where  the  officer  is  proceeding  under 
an  unconstitutional  act,  its  invalidity  suf- 
fices to  show  that  he  is  without  authority, 
and  it  is  this  absence  of  lawful  power  and 
his  abuse  of  authority  in  imposing  or  en- 
forcing, in  the  name  of  the  state,  unwar- 
rantable exactions  or  restrictions,  to  the 
irreparable  loss  of  the  complainant,  which 
is  the  basis  of  the  decree.  Ex  parte  Young, 
209  U.  S.  123,  159,  52  _L.  Ed.  714,  28  S.  Ct. 
441.  And  a  similar  injury  may  be  inflicted, 
and  there  may  exist  ground  for  equitable 


relief,  when  an  officer,  insisting  that  he  has 
the  warrant  of  the  statute,  is  transcending 
its  bounds,  and  thus  unlawfully  assuming 
to  exercise  the  power  of  government 
against  the  individual  owner,  is  guilty  of 
an  invasion  of  private  property.  Phila- 
delphia Co.  Zf.  Stimson,  223  U.  S.  605,  5G  L. 
Ed.  570,  32  S.  Ct.  340. 

And  in  case  of  an  injury  threatened  by 
his  illegal  action,  tlie  officer  can  not  claim 
immunity  from  injunction  process.  Phil- 
adelphia Co.  V.  Stimson,  223  U.  S.  605,  56 
L.  Ed.  570,  32  S.  Ct.  340. 

Individuals,  who  as  officers  of  the  state, 
are  clothed  with  some  duty  in  regard  to 
the  enforcement  of  the  laws  of  the  state, 
and  who  threaten  and  are  about  to  com- 
mence proceedings,  either  of  a  civil  or 
criminal  nature,  to  enforce  against  parties 
affected,  an  unconstitutional  act,  violating 
the  federal  constitution,  may  be  enjoined 
by  a  federal  court  of  equity  from  such  ac- 
tion. Ex  parte  loung,  209  U.  S.  123,  52  L. 
Ed.  714,  28  S.  Ct.  441. 

A  federal  court  may  enjoin  the  attorney 
general  of  a  sttxte,  whose  general  duty  is 
to  enforce  the  state  statutes,  from  pro- 
ceeding to  enforce,  against  persons  af- 
fected, a  state  statute  which  violates  the 
federal  constitution,  such  proceedings  be- 
ing not  prohibited  by  the  provision  of  the 
federal  constitution  forbidding  the  main- 
tenance of  actions  against  a  state.  Ex 
parte  Young,  209  U.  S.  123,  52  L.  Ed.  714, 
28  S.  Ct.  441. 

The  general  discretion  of  the  attorney 
general  of  a  state,  regarding  the  enforce- 
ment of  the  laws  when  and  as  he  deems 
appropriate,  is  not  interfered  with  by  an 
injunction  restraining  him  from  taking 
any  steps  towards  the  enforcement  of  an 
unconstitutional  enactment  to  the  injury 
of  a  complainant.  Ex  parte  Young,  209  U. 
S.  123,  52  L.  Eu.  714,  28  S.  Ct.  441. 

In  making  an  officer  of  the  state  a  party 
defendant  in  a  suit  to  enjoin  the  enforce- 
ment of  an  act  alleged  to  be  unconstitu- 
tional, it  is  plain  that  such-  officer  must 
have  some  connection  with  the  enforce- 
ment of  the  act,  or  else  it  is  merely  mak- 
mg  him  a  party  as  a  representative  of  the 
state,  and  there^^y  attempting  to  make  the 
state  a  party.  Ex  parte  Young,  209  U.  S. 
123,  52  L.  Ed.  714,  728,  28  S.  Ct.  441. 

The  fact  that  the  state  officer,  by  vir- 
tue of  his  office,  has  some  connection  with 
the  enforcement  of  the  act,  is  the  impor- 
tant and  material  fact,  and  whether  it 
arises  out  of  the  general  law,  or  is  specially 
created  by  the  act  itself,  is  not  material  so 
long  as  it  exists.  Ex  parte  Young,  209  U. 
S.   123,  52  L.   Ed.  714,  28   S.  Ct.  441. 

Where  the  state  official,  instead  of  di- 
rectly interfering  with  tangible  property, 
is    aliout    to    commence    suits   which   have 


307 


284-287 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


e.  Delegation  of  Constitutional  Powers — (1)  Devolution  of  Power  by  One 
Department  upon  Another — (c)  Devolution  of  Judicial  Functions  upon  the  Leg- 
islative and  Executive  Departments. — See  note  7'6a. 

(2)  Delegation  of  Pozvers  by  the  Legislative  Departments — (a)  By  Con- 
gress—  (aa)  Generally. — See  post,  "Exceptions  and  Limitations;  Statutes  De- 
pendent upon  the  Discretion  of  the  Executive,  etc.,"  VI,  D,  3,  e,  (2),  (a),  (ee). 

(ee)  Exceptions  and  Limitations;  Statutes  Dependent  upon  the  Discretion 
of  the  Executive,  etc. — See  note  94. 


for  their  object  the  enforcement  of  an 
act  which  violates  the  federal  constitu- 
tion, to  the  great  and  irreparable  injury 
of  the  complainants,  he  is  seeking  the 
same  justification  from  the  authority  of 
the  state  as  in  other  cases.  The  sov- 
ereignty of  the  state  is,  in  reality,  no  more 
involved  in  one  case  than  in  the  other. 
The  state  can  not,  in  either  case,  impart 
to  the  official  immunity  from  responsi- 
bility to  the  supreme  authority  of  the 
United  States.  Ex  parte  Young,  209  U. 
S.   ]23,  .52   L.   Ed.  714,   732,  28   S.   Ct.   441. 

284-76a.  Devolution  of  judicial  func- 
tions upon  the  legislative  and  executive 
departments. — Judicial  powers  are  not  un- 
constitutionally delegated  to  the  secretary 
of  war  by  the  River  and  Harbor  Act  of 
March  3,  1899.  c.  425,  §  18,  30  Stat.  1153 
(U.  S.  Comp.  St.  1901,  p.  3545),  empower- 
ing that  official,  when  satisfied,  after  a 
hearing  of  the  parties  interested,  that  a 
bridge  over  a  navigable  water  way  of  the 
United  States  is  an  unreasonable  obstruc- 
tion to  navigation,  to  require  such  changes 
as  will  render  navigation  reasonably  free, 
easy,  and  unobstructed.  Judgment  United 
States  V.  Monongahela  Bridge  Co.  (D.  C. 
1908),  160  F.  712,  affirmed.  President,  etc.. 
Bridge  Co.  v.  United  States,  216  U.  S.  177, 
54  L.   Ed.   435,  30  S.   Ct.  356. 

287-94.  Delegation  of  power  to  heads  of 
departments  and  administrative  bodies. — 
That  congress  can  not  delegate  legislative 
power  is  a  principle  universally  recog- 
nized as  vital  to  the  integrity  and  main- 
tenance of  the  system  of  government 
ordained  by  the  constitution.  United 
States  V.  Grimaud,  220  U.  S.  506,  55  L.  Ed. 
563,  31  S.  Ct.  480;  Field  v.  Clark,  143  U.  S. 
649,  692,  36  L.   Ed.  294,  12  S.   Ct.  495. 

_  But  the  authority  to  make  administra- 
tive rules  is  not  a  delegation  of  legisla- 
tive power,  nor  are  such  rules  raised  from 
an  administrative  to  a  legislative  char- 
acter because  the  violation  thereof  is  pun- 
ished as  a  public  offense.  United  States 
V.  Grimaud.  220  U.  S.  506,  55  L.  Ed.  563, 
31   S.   Ct.  480. 

It  must  be  admitted  that  it  is  difficult 
to  define  the  line  which  separates  legisla- 
tive power  to  make  laws,  from  adminis- 
trative authority  to  make  regulations. 
This  difficulty  has  often  been  recognized, 
and  was  referred  to  by  Chief  Justice  Mar- 
shall in  Wayman  v.  Southard,  10  Wheat. 
1,  42,  6  L,.  Ed.  253,  where  he  was  consider- 


ing the  authority  of  courts  to  make  rules. 
He  there  said:  "It  will  not  be  contended 
that  congress  can  delegate  to  the  courts, 
or  to  any  other  tribunals,  powers  which 
are  strictly  and  exclusively  legislative. 
But  congress  may  certainly  delegate  to 
others  powers  which  the  legislature  may 
rightfully  exercise  itself."  What  were 
these  nonlegislative  powers  which  con- 
gress could  exercise,  but  which  might  also 
be  delegated  to  others,  was  not  de- 
termined, for  he  said:  "The  line  has  not 
been  exactly  drawn  which  separates  those 
important  subjects  which  must  be  entirely 
regulated  by  the  legislature  itself,  from 
those  of  less  interest,  in  which  a  general 
provision  may  be  made,  and  power  given 
to  those  who  are  to  act  under  such  gen- 
eral provisions  to  fill  up  the  details." 
United  States  v.  Grimaud,  220  U.  S.  506, 
55    L.    Ed.   563,   31    S.    Ct.   480. 

Legislative  power  was  not  unconstitu- 
tionally delegated  to  the  secretary  of  agri- 
culture by  the  provisions  of  the  Forest 
Reserve  Act  (Act  June  4,  1897,  c.  2,  30 
Stat.  35  [U.  S.  Comp.  St.  1901,  p.  1539]) 
and  Act  Feb.  1,  1905,  c.  288,  §  5,  33  Stat. 
628  (U.  S.  Comp.  St.  Supp.  1909,  p.  577), 
making  criminal  the  violation  of  the  rules 
and  regulations  covering  forest  reserva- 
tions, made  and  promulgated  by  him  under 
authority  of  those  statutes.  (1911)  United 
Slates  V.  Grimaud,  220  U.  S.  506,  55  L.  Ed. 
563,  31  S.  Ct.  480,  reversing  judgment  (D. 
C.   1909),   170  F.  -205. 

Secretary  of  agriculture — Rules  con- 
cerning forest  reservations. — Light  v. 
United  States,  220  U.  S.  523,  55  L.  Ed.  570, 
31  S.  Ct.  485. 

In  the  nature  of  things  it  was  impracti- 
cable for  congress  to  provide  general 
regulations  for  these  various  and  varying 
details  of  management.  Each  reservation 
had  its  peculiar  and  special  features:  and 
in  authorizing  the  secretary  of  agriculture 
to  meet  these  local  conditions,  congress 
was  merely  conferring  administrative 
functions  upon  an  agent,  and  not  delegat- 
ing to  him  legislative  power.  United 
States  V.  Grimaud,  220  U.  S.  506,  55  L. 
Ed.   563.   31    S.    Ct.   480. 

Secretary  of  war — Control  over  navi- 
gable waters. — Legislative  powers  are  not 
unconstitutionally  delegated  to  the  secre- 
tary^ of  war-bv  the  River  and  Harbor  Act 
of  March  3,  1899,  c.  425,  §  18,  30  Stat.  1153 
(U.  S.  Comp.  St.  1901.  p.  3545),  empower- 


308 


Vol.  IV 


CONSTITUTIOXAL  LAW. 


291-298 


(b)  Delegation  of  Power  by  State  Legislative  Bodies — (bb)  To  Boards, 
Commissions  and  Similar  Agencies. — See  note  1. 

f.  The  Legislative  Departments — (1)  Legislative  Department  of  the  Federal 
Government — (h)  Legislative  Pozvcrs  of  Congress — (bb)  Constitutional  Lim- 
itations upon  Legislative  Powers — (aaa)    Generally. — See  note  47. 

(dd)    Particular  Pozi'ers  of  Congress — (iii)    To  Define  and  Punish  Crime. 

Assumption  of  State's  Power  by  Congress. — See  ante,  ''To  Define  and  Pun- 
ish Crime."  VI,  D,  3,  c,  (4),  (f  j. 

(qqq)  Pozcer  to  Borrow  Money  and  Provide  a  Currency — (cccc)  Of  the 
Power  to  Provide  a  Currency — fddddd)  Pozcer  to  Protect  Currency  and  Se- 
cure the  Benefit  Thereof. — By  Prohibiting  Exportation  of  Coins.— However 


ing  that  official,  when  satisfied,  after  a 
hearing  of  the  parties  interested,  that  a 
bridge  over  a  navigable  water  way  of  the 
United  States  is  an  unreasonable  obstruc- 
tion to  navigation,  to  require  such  changes 
as  will  render  navigation  reasonably  free, 
easy,  and  unobstructed.  Judgment,  United 
States  V.  Monongahela  Bridge  Co.  (D.  C. 
1908),  160  F.  712,  affirmed.  President,  etc.. 
Bridge  Co.  v.  United  States,  216  U.  S. 
177,  54  L.  Ed.  435,  30  S.  Ct.  356. 

The  18th  section  of  the  River  and  Har- 
bor Act  of  March  3d,  1899,  could  not  re;'- 
sonably  be  taken  as  a  delegation  of  legis- 
lative and  judicial  power  to  an  executive 
department  of  the  government;  that  the 
statute  did  not,  in  any  real,  constitutional 
sense,  delegate  to  the  secretary  of  war 
any  power  that  must,  under  our  system  of 
government,  be  exclusively  exercised 
either  by  the  legislative  or  judicial  branch 
of  the  government.  President,  etc.,  Bridge 
Co.  V.  United  States,  216  U.  S.  177,  54  L. 
Ed.  435,  30  S.   Cl.  356. 

Interstate  commerce  or  other  commis- 
sion.— The  congress  may  not  delegate  its 
purely  legislative  power  to  a  commission, 
but,  having  laid  down  the  general  rules  of 
action  under  which  a  commission  shall 
proceed,  it  maj^  require  of  that  commis- 
sion the  application  of  such  rules  to  par- 
ticular situations  and  the  investigation  of 
facts,  with  a  view  to  making  orders  in  a 
particular  matter  within  the  rules  laid 
down  by  the  congress.  This  rule  has  been 
frequently  stated  and  illustrated  in  recent 
cases  in  the  federal  supreme  court,  and 
needs  no  amplification  here.  Interstate 
Commerce  Com.m.  v.  Goodrich  Transit 
Co..  224  U.  S.  194.  50  L.  Ed.  729,  32  S.  Ct. 
436;  Buttfield  v.  Stranahan,  192  U.  S.  470. 
48  L.  Ed.  525.  24  S.  Ct.  349;  Union  Bridge 
Co.  T'.  United  States,  204  U.  S.  364.  51 
L.  Ed.  523,  27  S.  Ct.  367;  United  States 
T.  Grimaud,  220  U.  S.  506,  55  L.  Ed.  563, 
31    S.    Ct.   480. 

Legislative  power  is  not  unconstitu- 
tionally delegated  to  the  American  Rail- 
way Association  and  the  interstate  com- 
merce commission  by  the  provision  of 
Safety  Appliance  Act  March  2,  1893,  c. 
196,  §  5.  27  Stat.  531  (U.  S.  Comp.  St.  1901, 
p.  3174),  that,  after  a  date  named,  only 
cars  with  drawbars  of  uniform  height  shall 


be  used  in  interstate  commerce,  and  that 
the  standard  shall  be  fixed,  by  the  asso- 
ciation and  declared  by  the  commission. 
Judgment.  St.  Louis,  L  M.  &  S.  Ry.  Co. 
V.  Neal  (1906),  98  S.  W.  958,  83  Ark.  591, 
reversed.     St.  Louis,  etc.,  R.  Co.  v.  Taylor, 

210  U.  S.  281,  52  L.  Ed.  1061,  28  S.  Ct.  616. 
291-1.    Delegation    of    slate     legislative 

powers   to    boards,     commissions,     etc 

Red  "C"  Oil  ^Ifg.  Co.'  v.  Board,  222  U.  S. 
380,  56  L.  Ed.  240,  32  S.  Ct.  152;  Honolulu, 
etc..  Land  Co.  v.  Territorv  of  Hawaii,  211 
U.  S.  282,  291,  53  L.  Ed.  186,  29  S.  Ct.  55; 
Interstate  Commerce  Comm.  v.  Cincin- 
nati, etc.,  R.  Co.,  167  U.  S.  479,  494,  42 
L.  Ed.  243. 

Inspection  of  oil — Powers  of  state  board 
of  agriculture.— Legislative  powers  are  not 
unconstitutionally  delegated  to  the  board 
of  agriculture  by  the  provisions  of  the 
Xorth  Carolina  Oil  Inspection  Act  of 
March  8,  1909  (Acts  1909,  c.  554),  which 
requires  that  illuminating  oils  sold  or  of- 
fered for  sale  in  the  state  be  safe,  pure, 
and  afforded  a  satisfactory  light,  leaving 
it  to  the  board  to  determine  what  oils  will 
measure  up  to  these  standards.  Red  "C" 
Oil  Mfg.  Co.  V.  Board.  222  U.  S.  380,  56 
L.  Ed.  240,  32  S.  Ct.  152,  affirming  decree 
(C.    C.   1909),   172    F.    695. 

The  power  to  regulate  public  service 
corporations  is  legislative  in  its  character 
and  may  be  exercised  directly  by  the  legis- 
lature itself,  or  the  legislature  may  dele- 
gate to  an  administrative  body  the  execu- 
tion in  detail  of  the  power  of  regulation, 
including  the  regulation  of  rates.  Hono- 
lulu, etc..  Land  Co.  v.  Territorj''  of  Hawaii, 

211  U.  S.  282,  291,  53  L.  Ed.  186.  29  S.  Ct. 
55;  Prentis  v.  Atlantic  Coast  Line  Co..  211 
U.   S.  210.   225.  53   L.   Ed.   150.  29   S.  Ct.   67. 

298-47.  Express  powers  subject  to  ex- 
press limitations. — The  power  to  regulate 
interstate  and  foreign  commerce,  like  all 
others  vested  in  congress,  is  complete  in 
itself,  may  be  exercised  to  its  utmost  ex- 
tent, and  acknowledges  no  limitations 
other  than  are  prescribed  in  the  constitu- 
tion. The  Employers'  Liability  Cases.  207 
U.  S.  463.  52  L.  Ed.  297.  28  S.  Ct.  141.  See, 
also,  ante,  "Supremacy  in  Case  of  Conflict 
between  State  and  Federal  Powers,"  VI, 
D,  3,  c,  (6),  (b),  (hh). 


309 


305-318 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


unwise  a  law  may  be,  aimed  at  the  exportation  of  such  coins,  in  the  face  of  the 
axioms  against  obstructing  the  free  flow  of  commerce,  there  can  be  no  serious 
doubt  but  that  the  power  to  coin  money  includes  the  power  to  prevent  its  out- 
flow from  the  country  of  its  origin.  To  justify  the  exercise  of  such  a  power  it  is 
only  necessary  that  it  shall  appear  that  the  means  are  reasonably  adapted  to 
conserve  the  general  public  interest,  and  are  not  an  arbitrary  interference  with 
private  rights  of  contract  or  property.^^a 

(eeeee)  Pozver  to  Coin  Money,  Emit  Bills  of  Credit,  and  Prescribe  a  Legal 
Tender,  an  Exclusive  Power. — The  power  to  "coin  money  and  regulate  the  value 
thereof,  and  of  foreign  coin,"  is  a  prerogative  of  sovereignty  and  a  power  ex- 
clusively vested  in  the  congress  of  the  United  States.  The  power  which  the 
government  of  the  Philippine  Islands  has  in  respect  to  a  local  coinage  is  derived 
from  the  express  act  of  congress. ^^^ 

(2)    State   Legislative   Departments — (a)    Nature   and   Scope    of   Powers 

(aa)   Generally. — See  note  42. 

(b)  Constitutional  Limitations  upon  Legislative  Powers — (ff)  Powers  Re- 
stricted to  State  Limits.— See  post,  "No  State  to  Exercise  Its  Legislative  or  Ju- 
dicial Powers  within  the  Limits  of  Another,"  VI,  D,  9,  a,   (2). 


305-84a,  By  prohibiting  exportation  of 
coins. — Ling  »Su  Fan  v.  United  States,  218 
U.    S.    302,   54   L.    Ed.    1049,    31    S.    Ct.   21. 

A  law  which  prohibits  the  exportation 
of  Philippine  silver  coin  from  the  Philip- 
pine Islands  is  not  a  law  which  deprives 
the  owner  of  his  property  in  such  coins 
without  due  process  of  law,  in  violation 
of  that  prohibition  of  the  Organic  Act  of 
July  1,  1902,  which  provid<=s  that  "no  law 
shall  be  enacted  in  said  islands  which  shall 
deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law."  32 
Stat,  at  L.  692,  chap.  1369.  Ling  Su  Fan 
V.  United  States,  218  U.  S.  302,  54  L.  Ed. 
1049,  31   S.   Ct.  21. 

The  owner  of  Philippine  silver  coin  is 
not  deprived  of  his  proppi-ty  therein  with- 
out due  process  of  law,  contrary  to  Act 
July  1,  1902,  c.  1369,  32  Stat.  692,  by  the 
prohibition  against  the  exportation  of  such 
coin  from  the  Philippine  Islands,  under 
penalty  of  forfeiture  and  fine  or  imprison- 
ment, which  is  made  by  the  Philippine  law 
No.  1411.  enacted  by  the  Philippine  Com- 
mission in  the  exercise  cT  the  power  un- 
der Act  Cong.  March  2,  1903,  c.  980,  §  6, 
32  Stat.  953  (U.  S.  Comp  St.  Supp.  1909, 
p.  895),  to  adopt  such  measures  as  are 
deemed  proper,  not  inconsistent  with  the 
organic  act,  to  maintain  the  parity  be- 
tween gold  and  silver  pesos,  but  such 
statute  is  within  the  limits  of  the  police 
power.  Ling  Su  Fan  v.  United  States,  218 
U.   S.  302,  54  L.   Ed.  1049.  31   S.   Ct.  21. 

Pas.'^ing  by  any  consideration  of  the 
wisdom  of  such  a  law  prohibiting  the  ex- 
portation of  the  Philippine  Islands  silver 
pesos  as  not  relevant  to  the  question  of 
power,  a  substantial  reason  for  such  a  law 
is  indicated  by  the  fact  that  the  bullion 
value  of  such  coin  in  Hong  Kong  was 
some  9  per  cent  greater  than  its  face 
value.  The  law  was  therefore  adapted  to 
keep  the  silver  pesos  in  circulation  as  a 
medium  of  exchange  in  the  islands  and  at 


a  parity  with  the  gold  peso  of  Philippine 
mintage.  The  law  here  in  question  is 
plainly  within  the  limits  of  the  police 
power,  and  not  an  arbitrary  or  unreason- 
able interference  with  private  rights.  Ling 
Su  Fan  v.  United  States,  218  U.  S.  302,  54 
L.  Ed.  1049,  31   S.  Ct.  21. 

Conceding  the  title  of  the  owner  of 
such  coins,  yet  there  is  attached  to  such 
ownership  those  limitations  which  pub- 
lic policy  may  require  by  reason  of  their 
quality  as  a  legal  tender  and  as  a  medium 
of  exchange.  These  limitations  are  due 
to  the  fact  that  public  law  gives  to  such 
coinages  a  value  which  does  not  attach 
as  a  mere  consequence  of  intrinsic  value. 
Their  quality  as  a  legal  tender  is  an  at- 
tribute of  law  aside  from  their  bullion 
value.  They  bear,  therefore,  the  impress 
of  sovereign  power  which  fixes  value  and 
authorizes  their  use  in  exchange.  As  an 
incident,  government  may  punish  deface- 
ment and  mutilation,  and  constitute  any 
such  act,  when  fraudulently  done,  a  mis- 
demeanor. Rev.  Stat.,  §§  5189,  5459,  U. 
S.  Comp.  Stat.  1901,  pp.  3484,  3684.  Ling 
Su  Fan  v.  United  States,  218  U.  S.  302, 
54   L.    Ed.    1049,   31    S.    Ct.   21. 

305-85a.  Power  to  coin  money,  emit  bill 
of  credit,  and  prescribe  a  legal  tender,  and 
exclusive  power.— Ling  Su  Fan  v.  United 
States.  218  U.  S.  302,  54  L.  Ed.  1049,  31 
S.    Ct.   21. 

318-42.  State  legislative  departments — 
Nature  and  scope  of  powers. — While  the 
constitution  of  the  United  States  and  the 
laws  enacted  in  pursuance  thereof,  together 
with  any  treaties  made  under  the  au- 
thority of  the  United  States,  constitute  the 
supreme  law  of  the  land,  a  state  of  the 
Union  may  exercise  all  such  governmental 
authority  as  is  consistent  with  its  own 
constitution,  and  not  in  conflict  with  the 
federal  constitution.  House  v.  Mayes,  219 
U.    S.   270,  55   L   Ed.   213,   31    S.   Ct.   234. 


310 


Vol.  IV.  CONSTITUTIONAL  LAW.  320-334 

{gg)  Pozver  to  Barter  Sovereign  Rights  or  Bind  Succeeding  Legislatures. — ■ 
The  surrender  by  contract,  of  a  power  of  government,  though  in  certain  well- 
defined  cases  it  may  be  made  by  legislative  authority,  is  a  very  grave  act,  and  the 
surrender  itself,  as  well  as  the  authority  to  make  it,  must  be  closely  scrutinized. 
No  other  body  than  the  supreme  legislative  body  of  the  state  has  the  authority 
to  make  such  a  surrender,  unless  the  authority  is  clearly  delegated  to  it  by  the 
supreme  legislature.  The  general  powers  of  a  municipality  or  of  any  other  polit- 
ical subdivision  of  the  state  are  not  sufficient.  Specific  authority  for  that  pur- 
pose is  required.^^^ 

4.  Equauty  of  thf  States. — See  post,  "Equality  of  the  States  upon  Admis- 
sion into  the  Union,"  VI,  D,  6,  b,  et  seq. 

5.  The  Federal  Guaranty  of  Republican  Government  to  the  States  and 
Protection  against  Domestic  Violence — a.  Sense  in  Which  Term  "State" 
Used  in  This  Connection. — See  ante,  "State  or  Government  Defined,"  VI,  A. 

b.  Republican  Form  of  Government  Defined. — Form  of  Government  Em- 
bodying Initiative  and  Referendum  Features. — See  post,  "Political  Depart- 
ment Charged  with  Duty  of  Enforcing  Guaranty,"  VI,  D,  5,  d,  (2). 

d.  Right  and  Duty  of  Federal  Government  to  Intervene  for  Purpose  of  Sup- 
pressing Violence  and  Maintaining  Republican  Form  of  Government — (2)  Po- 
litical Department  Charged  zvith  Duty  of  Enforcing  Guaranty. — Where  State 
Government  Embodies  Initiative  and  Referendum  Features  a  Political, 
and  Not  a  Judicial,  Question. — \\liether  or  not  a  state  has  ceased  to  be  repub- 
lican in  form  within  the  meaning  of  the  guaranty  in  U.  S.  Const.,  art.  4,  §  4,  be- 
cause of  its  adoption  of  the  initiative  and  referendum,  is  not  a  judicial  question, 
but  a  political  one,  which  is  solely  for  congress  to  determine. ^^ 

Same — State  Questions. — See  note  9b. 

6.  New  States  and  Admission  into  the  Union — ^b.  Equality  of  States  upon 
Admission  into  the  Union — (1)  Generally. — A  state,  upon  its  admission  in  the 
Union,  is  thereafter  upon  an  equal  footing  with  every  other  state  and  has  full 
and  complete  jurisdiction  over  all  persons  and  things  within  its  limits,  except  as 
it  may  be  restrained  by  the  provisions  of  the  federal  constitution  or  by  its  own 
constitution. -s* 

(2)  Pozver  of  Congress  to  Impose  Conditions  Incompatible  zvith  the  Equality 
of  the  State  as  a  Member  of  the  Union. — The  power  of  congress  under  U.  S. 
Const.,  art.  4,  §  3,  to  admit  new  states  into  the  Union,  extends  only  to  their  ad- 
mission on  an  equal  footing  with  their  sister  states.  That  provision  is  that,  "new 
states  may  be  admitted  by  the  congress  into  this  Union."  The  only  expressed 
restriction  upon  this  power  is  that  no  new  state  shall  be  formed  within  the  juris- 
diction of  any  other  state,  nor  by  the  junction  of  two  or  more  states,  or  parts 
of  states,  without  the  consent  of  such  states,  as  well  as  of  the  congress.     This 

320-56a.     Power     to     barter       sovereign  authorizing-  the   voters   of   a   municipality 

rights    or   bind    succeeding    legislatures. — ■  to    resort    to    the    initiative    to    amend    its 

Home  Tel,  etc.,  Co.  z^.  Los  Angeles,  211    U.  charter,   and   as   to   the    regularity   of   the 

S.  265,  273,  53  L.  Ed.  176,  29  S.  Ct.  50.     See,  proceedings  leading  up  to  the  adoption  of 

also,    post,    IMPAIRMENT    OF    OBLI-  an   amendment,   and   of    the     proceedings 

GATION     OF    CONTRACTS;  POLICE  culminating  in  the  adoption  of  a  particular 

POWER.  ordinance,  are  not  federal,  and  hence  will 

331-9a.  Form  of  government  embodying  not  support  a  writ  of  error  from  the  fed- 
initiative  and  referendum  features — A  po-  eral  supreme  court  to  a  state  court.  Kier- 
litical,  and  not  a  judicial  question. — Kier-  nan  v.  Portland,  223  U.  S.  151,  56  L.  Ed. 
nan  v.  Portland,  223   U.   S.   151,  56   L.   Ed.  386,  32  S.  Ct.  231. 

386,  32  S.  Ct.  231 ;  Pacific  States  Tel.,  etc.,  334-28a.  Equality  of  states  upon  ad- 
Co.  7K  Oregon,  223  U.  S.  118,  56  L.  Ed.  mission.— Dick  v.  United  States,  208  U. 
377.  32  S.  Ct.  224.  S.   340,   353,   52   L.    Ed.  520,   28   S.    Ct.   399; 

331-9b.     Same— State    questions.— Ques-  Coyle  v.   Smith,  221  U.  S.  559,  55  L.   Ed. 

tions   as  to  the  validity  under    the     state  853,  31  S.  Ct.  688;  Ex  parte  Webb,  225  U. 

constitution   of   Or.   Laws   1907,   chap.   226,  S.  663,  56  L.  Ed.  1248,  32  S.  Ct.  769. 

311 


335-336  CONSTITUTIONAL  LAW.  Vol.  IV. 

power  is  not  a  power  to  admit  political  organizations  w^hich  are  less  or  greater, 
or  different  in  dignity  or  power,  from  those  political  entities  which  constitute  the 
Union.  It  is  a  "power  to  admit  states  into  this  Union,"  and  "this  Union"  was 
and  is  a  union  of  states,  equal  in  power,  dignity,  and  authority,  each  competent 
to  exert  that  residuum  of  sovereignty  not  delegated  to  the  United  States  by  the 
constitution  itself.  When  a  new  state  is  admitted  into  the  Union,  it  is  so  ad- 
mitted with  all  of  the  powers  of  sovereignty  and  jurisdiction  which  pertains  to 
the  original  states,  and  such  powers  may  not  be  constitutionally  diminished,  im- 
paired or  shorn  away  by  any  conditions,  compacts  or  stipulations  embraced  in 
the  act  under  which  the  new  state  came  into  the  Union,  which  would  not  be  vahd 
and  eft'ectual  if  the  subject  of  congressional  legislation  after  admission.-^-^ 

As  Affected  by  Provision  as  to  Republican  Form  of  Government. — The 
constitutional  duty  of  guaranteeing  each  state  in  the  Union  a  republican  form  of 
government  gives  congress  no  power  to  impose  restrictions  in  admitting  a  new 
state  into  the  Union  which  deprive  it  of  equality  with  the  other  states.^-'' 

Right  of  New  State  to  Frame  Its  Own  Constitution. — As  to  requirements 
in  such  enabling  acts  which  relate  only  to  the  contents  of  the  constitution  for  the 
proposed  new  state,  little  need  to  be  said.  The  constitutional  provision  concern- 
ing the  admission  of  new  states  is  not  a  mandate,  but  a  power  to  be  exercised 
with  discretion.  From  this  alone  it  would  follow  that  congress  may  require, 
under  penalty  of  denying  admission,  that  the  organic  law  of  a  new  state  at  the 
time  of  admission  shall  be  such  as  to  meet  its  approval.  A  constitution  thus  su- 
pervised by  congress  would,  after  all,  be  a  constitution  of  a  state,  and  as  such 
subject  to  alteration  and  amendment  by  the  state  after  admission.  Its  force 
would  be  that  of  a  state  constitution,  and  not  that  of  an  act  of  congress.-"^^^ 

Limitation  of  Doctrine  with  Respect  to  Those  Matters  as  to  Which 
Authority  of  Congress  Constitutionally  Extends. — It  may  well  happen  that 
congress  should  embrace  in  an  enactment  introducing  a  new  state  into  the  Union 
legislation  intended  as  a  regulation  of  commerce  among  the  states,  or  with  In- 
dian tribes  situated  within  the  limits  of  such  new  state,  or  regulations  touching 
the  sole  care  and  disposition  of  the  public  lands  or  reservations  therein,  which 
might  be  upheld  as  legislation  within  the  sphere  of  the  plain  power  of  congress. 
But  in  every  such  case  such  legislation  would  derive  its  force  not  from  any  agree- 
ment or  compact  with  the  proposed  new  state,  nor  by  reason  of  its  acceptance  of 
such  enactment  as  a  term  of  admission,  but  solely  because  the  power  of  congress 
extended  to  the  subject,  and  therefore  would  not  operate  to  restrict  the  state's 
legislative  power  in  respect  of  any  matter  which  was  not  plainly  within  the  reg- 
ulating power  of  congress. ^"^^ 

335-32a.    Power  of  congress  to  impose  336-33a.   Right  of  new  state  to  frame  its 

conditions   incompatible    with    equality. —  own  constitution. — Coyle  v.  Smith,  221  U. 

Coyle   f.    Smith.   221   U.    S.   .559,   55    L.    Ed.  S.   559,   55   L.    Ed.   853,  31    S.    Ct.   688. 

853,  31   S.   Ct.  688.  Requirement  as  to  seat  of  government. 

335-32b.    As  affected  by  provision  as  to  — A    condition    in    the    Enabling    Act      of 

republican  form  of  government. — Covle  z:  June  16,  1906  (3-i  Stat,  at  L.  chap.  3335,  p. 

Smith,  221  U.   S.  559,  55  L.  Ed.  853,  "si   S.  267).  for  the  admission  of  Oklahoma  into 

Ct.  688.  the   Union   on  an   equal   footing  with   the 

The  duty  of  "guaranteeing  to  each  state  original  states,  that  the  capital  of  the  state 
in  this  Union  a  republican  form  of  gov-  shall  temporarily  be  at  the  city  of  Guth- 
ernment,"  may  imply  the  duty  of  such  new  rie,  and  shall  not  be  changed  therefrom 
state  to  provide  itself  with  such  state  gov-  previous  to  1913,  although  accepted  by  an 
ernment,  and  impose  upon  congress  the  irrevocable  ordinance,  ceased  to  be  a  valid 
duty  of  seeing  that  such  form  is  not  limitation  upon  the  power  of  the  state 
changed  to  one  anti-republican,  ]Minor  z\  after  its  admission,  and  can  not  override 
Happersett,  21  Wall.  162,.  174,  22  L.  Ed.  any  subsequent  repugnant  state  legisla- 
627,  but  it  obviously  does  not  confer  power  tion.  Coyle  z'.  Smith,  221  U.  S.  559.  55 
to  admit  a  new  state  which  shall  be  any  L.  Ed.  853,  31  S.  Ct.  688. 
less  a  state  than  those  which  compose  the  336-34a.  Limitation  of  doctrine  with  re- 
Union.  Coyle  V.  Smith,  221  U.  S.  559,  55  spect  to  those  matters  as  to  which  au- 
L.  Ed.  853,  31  S.  Ct.  688.  thority    of    congress    constitutionally    ex- 

312 


Vol.  IV. 


COXSTITUTIOXAL  LAW. 


339-340 


(3)    Effect   of  Admission   upon  Lazvs  and  Ordinances   Respecting  the    Terri- 
tories.—The  Ordinance  of  1787.  —See  note  42. 

7.    Thk  Uxiox  Indissoluble;    the  States  Indestructible— a.    The  Union 
Indissoluble — (Ij    Generally. — See  note  45. 


tends. — Coyle  z:  Smith,  221  U.  S.  559,  55 
L.  Ed.  8^3,  31  S.  Ct.  688;  Willamette  Iron 
Bridge  Co.  v.  Hatch,  125  U.  S.  1,  9,  31  L. 
Ed.  629,  8  S.  Ct.  811;  Pollard  v.  Hagan, 
3  How.  212,  223,  11  L.  Ed.  565;  Ex  parte 
Webb,  225  U.  S.  663,  56  L.  Ed.  1248,  32  S. 
Ct.   769. 

In  announcing  this  limitation  of  the  doc- 
trine, however,  the  court  says:  "It  is  not 
our  purpose  to  qualify  the  doctrine  estab- 
lished by  repeated  decisions  of  this  court 
that  the  admission  of  a  new  state  into  the 
Union  on  an  equal  footing  with  the  origi- 
nal states  imports  an  equality  of  power 
over  internal  afifairs.  The  cases  cited  by 
counsel  for  the  petitioner  under  this  head 
are  cases  that  dealt  with  matters  wholly 
internal."'  Ex  parte  Webb,  225  U.  S.  663, 
56  L.  Ed.  1248,  32  S.  Ct.  769;  United  States 
V.  McBratney,  104  U.  S.  621,  26  L.  Ed.  869; 
Draper  v.  United  States.  164  U.  S.  240,  41 
L.  Ed.  419.  17  S.  Ct.  107:  In  re  Hefif,  197 
U.  S.  488,  505,  49  L.  Ed.  848,  25  S.  Ct.  506, 
and  see  Ward  v.  Race  Horse,  163  U.  S. 
504,  41  L.  Ed.  244,  16  S.  Ct.  1076;  United 
States  V.  Celestine,  215  U.  S.  278,  288,  54 
L.  Ed.  195,  30  S.  Ct.  93;  United  States  r. 
Sutton,  215  U.  S.  291.  294,  54  L.  Ed.  200,  30 
S.  Ct.  116;  Hallowell  z:  United  States,  221 
U.  S.  317.  323.  5^  L.  Ed.  750,  31  S.  Ct.  587; 
Dick  V.  United  States,  208  U.  S.  340,  52  L. 
520,  28  Sup.  Ct.  Rep.  399. 

Same — Commerce  with  Indian  tribes 
within  the  states. — The  power  of  congress 
to  regulate  commerce  between  the  states, 
and  with  Indian  tribes  situate  within  the 
limits  of  a  state,  justifies  congress  when 
creating  a  new  state  out  of  territory  in- 
habited by  Indian  tribes,  and  into  which 
territory  the  introduction  of  intoxicating 
liquors  is  by  existing  laws  and  treaties 
prohibited,  in  so  legislating  as  to  preserve 
those  laws  and  treaties  in  force  to  the  ex- 
tent of  excluding  interstate  traffic  in  in- 
toxicating liquors  that  would  be  incon- 
sistent with  the  prohibition.  Dick  v. 
United  States,  208  U.  S.  340.  353,  52  L. 
Ed.  520.  28  S.  Ct.  399.  This  being  so,  and 
since  there  is  no  repeal  in  the  Oklahoma 
Enabling  Act,  express  or  implied,  of  the 
Act  of  1895  so  far  as  pertains  to  the  carry- 
ing of  liquor  from  without  the  new  state 
into  that  part  of  it  which  was  the  Indian 
territory  (saving  as  to  liquor  brought  in 
by  the  state  for  the  use  of  state  agencies 
established  imder  the  provisions  of  the 
Enabling  Act),  it  follows,  upon  the  ad- 
mitted facts,  that  the  United  States  dis- 
trict court  had  jurisdiction  to  punish  the 
petitioner  for  the  ofTense  that  he  had 
committed.  Ex  parte  Webb.  225  U.  S. 
663,  56  L.  Ed.  1248,  32  S.  Cf.  769. 


The  reservation  in  the  Oklahoma  En- 
abling Act  of  June  16,  1906,  §  1,  of  the  au- 
thority of  congress  to  legislate  in  the  fu- 
ture respecting  the  Indians  residing  within 
the  new  state,  is  within  the  constitutional 
power  of  congress  to  regulate  commerce 
with  the  Indian  tribes.  Ex  parte  Webb 
225  U.  S.  663,  56  L.  Ed.  1248,  32  S.  Ct.  769! 

The  stipulation  in  the  agreement  of  May 
1,  1893,  between  the  United  States  and 
the  Nez  Perce  Indians,  that  the  federal 
laws  prohibiting  the  introduction  of  m- 
toxicating  liquors  into  the  Indian  country 
shall,  for  a  period  of  twenty-five  years, 
apply  to  the  lands  thereby  ceded  to  the 
United  States  and  to  those  retained  by 
the  Indians  and  to  those  allotted  to  them 
in  severalty,  was  a  valid  regulation,  based 
upon  the  treaty-making  power  of  the 
United  States  and  upon  the  power  of 
congress  to  regulate  commerce  with  the 
Indians,  and  was  not  an  invasion  of  the 
sovereignty  of  the  state  of  Idaho,  which 
had,  by  the  Act  of  1890  (26  Stat,  at  L.  215, 
chap.  656),  been  admitted  into  the  Union 
upon  an  equal  footing  with  the  other 
states.  Dick  v.  United  States,  208  U.  S. 
340,  52  L.  Ed.  520,  28  S.  Ct.  399.  See.  also, 
post.  INTERSTATE  AND  FOREIGN 
CO^niERCE. 

339-42,  Ordinance  of  1787— As  a  re- 
striction upon  state's  power  of  eminent 
domain.— The  power  of  eminent  domain 
possessed  by  the  state  of  Ohio  was  not 
restricted  in  any  way  after  its  admission 
into  the  Union  by  the  provisions  of  the 
2d  article  of  the  ordinance  of  1787  for  tHe 
government  of  the  Northwest  Territory, 
relating  to  that  subject.  Cincinnati  v. 
Louisville,  etc..  R.  Co..  223  U.  S.  390,  56 
L.  Ed'.  481,  32  S.  Ct.  267.  See,  also,  ante, 
"Effect  of  Constitution  upon  Ordinances 
of  the  Old  Confederation,"  VI,  D.  2,  c, 
(3),  (d).  And  see  post.  OIPAIRMENT 
OF  OBLIGATION  OF  CONTRACTS. 

340-45.  The  union  indissoluble. — In 
Lane  County  z\  Oregon,  7  Wall.  71,  76, 
19  L.  Ed.  101.  it  is  said:  "'The  people  of 
the  United  States  constitute  one  nation, 
under  one  government;  and  this  govern- 
ment, within  the  scope  of  the  powers  with 
which  it  is  invested,  is  supreme.  On  the 
other  hand,  the  people  of  each  state  com- 
pose a  state,  having  its  own  government, 
and  endowed  with  all  the  functions  essen- 
tial to  separate  and  independent  existence. 
The  states  disunited  might  continue  to 
exist.  Without  the  states  in  union,  there 
could  be  no  political  body  as  the  United 
States.'  To  this  we  may  add  that  the  con- 
stitutional equality  of  the  states  is  essen- 
tial to  the   harmonious   operation    of    the 


313 


343-344 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


b.    The  States  Indestructible. — See  note  56. 

9.  Re];.ations  of  the  States  to  One  Another — a.  In  What  .Respects  States 
Foreign  to  One  Another — {2)  No  State  to  Exercise  Its  Legislative  or  Judicial 
Pozi'ers  zvithin  the  Limits  of  Another. — See  note  59. 


scheme  upon  which  the  republic  was  or- 
ganized. When  that  equality  disappears 
we  may  remain  a  free  people,  but  the 
union  will  not  be  the  union  of  the  con- 
stitution." Coyle  V.  Smith,  221  U.  S.  559, 
55  L.  Ed.  853,  31  S.  Ct.  G88. 

"The  constitution,  in  all  its  provisions, 
looks  to  an  indestructible  union,  com- 
posed of  indestructible  states."  Texas  v. 
White,  7  Wall.  700,  725,  19  L.  Ed.  227, 
quoted  in  Keller  v.  United  States,  213  U. 
S.  138,  53  E.  Ed.  737,  29  S.  Ct.  470,  and  in 
Coyle  V.  Smith,  221  U.  S.  559,  55  L.  Ed. 
853,    31    S.    Ct.    688. 

343-56.  The  states  indestructible. — See 
ante,    GENERALLY,   VL    D.   7,   a,    (l). 

344-59.  State  powers  not  to  be  exer- 
cised within  the  limits  of  other  states. — 
Atchison,  etc.,  R.  Co.  v.  Sowers,  213  U. 
S.  55,  53  L.  Ed.  695,  29  S.  Ct.  397.  See, 
also,  Pennoyer  v.  Neff,  95  U.  S.  714,  722, 
24  L.   Ed.   565. 

Laws  respecting  taxation — Generally. — 
It  is  firmly  established  that,  consistently 
with  the  due  process  clause  of  the  con- 
stitution of  the  United  States,  a  state  can 
not  tax  property  Jocated  or  existing  per- 
manently beyond  its  limits.  Western 
Union  Tel.  Co.  v.  Coleman,  216  U.  S.  1, 
54  L.  Ed.  355,  30  S.  Ct.  190;  Louisville, 
etc.,  Ferry  Co.  v,  Kentucky,  188  U.  S.  385, 
398,  47  L.  Ed.  513,  23  S.  Ct.  463;  Union 
Refrigerator,  etc.,  Co.  v.  Kentucky,  199  U. 
S.  194,  209.  50  L.  Ed.  150,  26  S.  Ct.  36. 

Same — German  warehouse  receipts — 
Kentucky  Statute. — A  state  can  not  tax 
German  warehouse  receipts,  valuing  them 
at  the  value  of  the  whiskey  they  represent, 
where  it  can  not  tax  the  whiskey  itself, 
either  because  it  was  exported  from  the 
United  States  or  because  of  its  situs. 
Judgment  (1907),  Commonwealth  v.  Sel- 
liger,  98  S.  W.  1040,  39  Ky.  Law  Rep.  451, 
reversed.  Selliger  v.  Commonwealth,  213 
U.   S.  200,  53  L.  Ed.  761,  29   S.   Ct.  449. 

As  to  movables  having  no  fixed  situs 
elsewhere,  and  whose  owner  resides 
in  state. — In  the  case  of  Union  Refriger- 
ator, etc.,  Co.  V.  Kentucky,  199  U.  S.  194, 
195,  50  L.  Ed.  150,  26  S.  Ct.  36,  the  ques- 
tion of  decision  as  stated  in  the  forepart 
of  the  opinion,  was,  "whether  a  corpora- 
tion organized  under  the  law  of  Kentucky 
is  subject  to  taxation  upon  its  property 
permanently  located  in  other  states,  and 
employed  "there  in  the  prosecution  of  its 
business."  The  property  in  question  was 
railroad  cars,  a  kind  of  movables  obviously 
capable  of  acquiring  a  permanent  location 
other  than  that  of  the  owner.  The  judg- 
ment of  the  court  was  that  the  taxation 
of  such  property  so  permanently  located 


elsewhere  by  the  law  of  the  domicile  of 
the  owner  would  be  a  denial  of  due  proc- 
ess of  law,  and  beyond  the  power  of  the 
state.  The  principle  was  not  a  new  one. 
and  was  declared  to  rest  upon  repeated 
judgments  of  the  federal  supreme  court, 
the  cases  of  Railroad  Co.  v.  Jackson,  7 
Wall.  262,  19  L.  Ed.  88;  Delaware,  etc.,  R. 
Co.  V.  Pennsylvania,  198  U.  S.  341,  49  L. 
Ed.  1077,  25  S.  Ct.  669;  Louisville,  etc., 
Ferry  Co.  v.  Kentucky,  188  U.  S.  385,  47 
L.  Ed.  513,  23  S.  Ct.  463,  being  cited  as 
precedents.  That  judgment  did  not  deny 
to  the  state  of  the  domicile  of  the  owner 
power  to  tax  tangibles  which  had  not  ac- 
quired an  actual  situs  elsewhere.  South- 
ern Pac.  Co.  V.  Commonwealth,  222  U. 
S.   63,   56   L.    Ed.   96,   32   S.    Ct.   13. 

Same — Domicile  of  vessels. — Making  the 
domicile  of  the  corporate  owner  of  ocean- 
going steamships  the  situs  of  taxation, 
where  such  vessels  have  acquired  no  ac- 
tual situs  elsewhere,  is  not  inconsistent 
with  the  due  process  of  law  guaranteed  by 
the  fourteenth  amendment  to  the  federal 
constitution.  Southern  Pac.  Co.  v.  Com- 
monwealth, 222  U.  S.  63,  56  L.  Ed.  96,  32 
S.  Ct.  13,  affirming  judgment  (1909),  Com- 
monwealth V.  Southern  Pac.  Co.,  120  S. 
W.   311,   134   Ky.   417,   20   Ann.   Cas.   965. 

Same — Property  of  foreign  corporations 
situated  without  the  state. — See,  also,  post, 
INTERSTATE  AND  FOREIGN  COM- 
MERGE. 

If  a  statute,  by  its  necessary  operation, 
really  and  substantially  burdens  the  in- 
terstate business  of  a  foreign  corporation 
seeking  to  do  business  in  a  state,  or  im- 
poses a  tax  on  its  property  outside  of  such 
state,  then  it  is  unconstitutional  and  void, 
although  the  state  legislature  may  not 
have  intended  to  enact  an  invalid  statute. 
Ludwig  V.  Western  Union  Tel.  Co.,  216 
U.  S.  146,  54  L.  Ed.  423,  30  S.  Ct.  280. 
Pullman  Co.  v.  Coleman,  216  U.  S. 
56,  54  L.  Ed.  378,  30  S.  Ct.  232;  Western 
Union  Tel.  Co.  v.  Coleman,  216  U.  S.  1, 
54   L.    Ed.   355.   30   S.   Ct.    190. 

Same — Foreign  property  of  telegraph 
company — Laws  Ark.  1907,  p.  744. — An  il- 
legal burden  on  the  interstate  business  of 
a  foreign  telegraph  company,  as  well  as 
a  tax  upon  its  property  beyond  the  juris- 
diction of  the  state,  is  imposed  by  the 
Laws  of  Ark.  1907,  p.  744,  under  which 
such  company,  as  a  condition  of  continu- 
ing to  do  local  business  in  the  state,  and 
of  escaping  the  heavj'-  penalties  therein 
prescribed,  must  pay  a  given  amount, 
based  on  all  its  capital  stock,  merely  for 
filing  its  articles  of  incorporation  with  the 
secretary  of  state.     Chicago,  etc.,  R.  Co.  v. 


314 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


344 


Limited  Exception  as  to  Jurisdiction  of  Courts  of  Equity. The  territo- 
rial limitation  of  the  jurisdiction  of  courts  of  a  state  over  property  in  another 
state  has  a  limited  exception  in  the  jurisdiction  of  a  court  of  equity,  but  it  is  an 
exception  well  defined.  A  court  of  equity,  having  authority  to  act  upon  the  per- 
son, may  indirectly  act  upon  real  estate  in  another  state,  through  the  instrumen- 
tality of  this  authority  over  the  person.  Whatever  it  may  do  through  the  party, 
it  may  do  to  give  efit'ect  to  its  decree  respecting  property,  whether  it  goes  to  the 
entire  disposition  of  it  or  only  to  affect  it  with  liens  or  burdens.^'j^ 

VII.  Equal  Protection  of  the  Laws;  Class  Legislation. 
A|.    Equal  Protection  as  Guaranteed  by  the  Due  Process  Clause  of 
the  Fifth  Amendment. — Whether  the  principle  embodied  in  the  explicit  clause 
of  the  fourteenth  amendment  prohibiting  the  states  from  denying  to  any  person 


Ludwig-  (C.  C.  1907),  156  Fed.  152  affirmed. 
Ludwig  V.  Western  Union  Tel.  Co.,  216 
U.  S.  146,  54  L.  Ed.  423,  30  S.  Ct.  280;  Ac- 
cord Pullman  Co.  v.  Coleman,  216  U.  S. 
56,  54  L.  Ed.  378,  30  S.  Ct.  232;  Western 
Union  Tel.  Co.  v.  Coleman,  216  U.  S.  1, 
54   L.    Ed.   355,    30    S.    Ct.    190. 

Same — Property  of  nonresident  express 
company — Oklahoma  Laws  1910,  ch.  44. — 
As  applied  to  express  companies  whose 
receipts  are  derived  largely  from  com- 
merce among  the  states  and  which  also 
receives  large  sums  as  income  from  in- 
vestments in  bonds  and  land  all  outside 
the  state,  a  statute  which  imposes  upon 
public  service  corporations  operating 
within  the  state  a  "gross  revenue  tax," 
"which  shall  be  in  addition  to  the  taxes 
levied  and  collected  upon  an  ad  valorem 
basis  upon  the  property  and  assets  of  such 
corporation,"  is  unconstitutional,  not  only 
as  an  attempt  to  tax  interstate  commerce, 
but  as  an  attempt  to  levy  a  tax  upon 
property  situated  without  and  beyond  the 
jurisdiction  of  the  state.  Meyer  v.  Wells, 
etc.,  Co.,  223  U.  S.  298,  56  L.  Ed.  445,  32 
S.   Ct.  218. 

A  nonresident  express  company  whose 
receipts  are  largely  derived  from  inter- 
state commerce  and  from  investments  in 
bonds  and  land  outside  the  state  can  not 
validly  be  subjected  to  the  "gross  revenue 
tax"  exacted  by  Okla.  Laws  1910,  chap. 
44,  from  public  service  corporation, 
"which  shall  be  in  addition  to  the  taxes 
levied  and  collected  upon  ad  valorem 
basis  upon  the  property  and  assets  of  such 
corporation,"  equal  to  such  proposition  of 
a  specified  percentage  of  its  gross  receipts 
from  every  source  whatsoever  as  the  por- 
tion of  its  business  done  within  the  state 
bears  to  the  whole  of  its  business.  Meyer 
V.  Wells,  etc.,  Co.,  223  U.  S.  298,  56  L.  Ed. 
445,  32  S.  Ct.  218,  following  Fargo  v.  Hart, 
193  U.  S.  490,  48  L.  Ed.  761,  24  S.  Ct.  498; 
Galveston,  etc.,  R.  Co.  v.  Texas,  210  U. 
S.  217,  52  L.  Ed.  1031,  28  S.  Ct.  638. 

The  "gross  revenue  tax"  exacted  from 
a  nonresident  express  company  by  Okla. 
Laws  1910,  chap.  44,  "which  shall  be  in 
addition  to  the  taxes  levied  and  collected 
upon  an  ad  valorem  basis  upon  the  prop- 


erty and  assets  of  such  corporation"  equal 
to  such  proportion  of  a  specified  percent- 
age of  its  gross  receipts  from  every  source 
whatsoever  as  the  portion  of  its  business 
done  within  the  state  bears  to  the  whole 
of  its  business,  can  not  be  construed,  for 
the  purpose  of  saving  its  constitutionality, 
as  referring  only  to  the  receipts  from 
commerce  wholly  within  the  state.  Meyer 
V.  Wells,  etc.,  Co.,  223  U.  S.  298,  56  L.  Ed. 
445,  32  S.  Ct.  218. 

Same — Capital  stock  of  foreign  railway 
company. — The  tax  imposed  under  Colo. 
Laws  1907,  chap.  211,  upon  the  capital 
stock  of  a  foreign  railway  company,  the 
greater  part  of  whose  property  and  busi- 
ness is  outside  the  state,  and  whose  busi- 
ness done  within  the  state  is  principally 
interstate  commerce,  is  invalid  under  the 
commerce  and  due  process  of  law  clauses 
of  the  federal  constitution,  even  if  the 
temporary  forfeiture  of  the  right  to  do 
business,  declared  by  the  statute  in  case 
of  failure  to  pay  the  tax,  can  be  confined 
by  construction  to  business  wholly  within 
the  state.  Atchinson,  etc.,  R.  Co.  v.  O'Con- 
nor, 223  U.  S.  280,  56  L-  Ed.  436,  32  S.  Ct. 
216. 

The  greater  part  of  its  property  and 
business  is  outside  of  the  state  of  Colo- 
.rado,  and  of  the  business  done  within  that 
state  but  a  small  proportion  is  local,  the 
greater  part  being  commerce  among  the 
states.  Therefore,  it  is  obvious  that  the 
tax  is  of  the  kind  decided  by  the  federal 
supreme  court  to  be  unconstitutional, 
since  the  decision  below  in  the  present 
case,  even  if  the  temporary  forfeiture  of 
the  right  to  do  business  declared  by  the 
statute  be  confined  by  construction,  as  it 
seems  to  have  been  below,  to  business 
wholly  within  the  state.  Atchinson,  etc., 
R.  Co.  V.  O'Connor,  223  U.  S.  280,  56  L. 
Ed.  436.  32  S.  Ct.  216;  Western  Union  Tel. 
Co.  V.  Coleman,  216  U.  S.  1.  54  L.  Ed.  355, 
30  vS.  Ct.  190;  Pullman  Co.  v.  Coleman, 
216  U.  S.  56,  54  L.  Ed.  378,  30  S.  Ct.  232; 
Ludwip-  7'.  Western  Union  Tel.  Co..  216 
U.   S.   146,   54   L.    Ed.   423,   30   S.   Ct.   280. 

344-59a.  Limited  exception  as  to  juris- 
diction of  courts  of  equity. — Fall  v.  Eastin, 
215  U.  S.  1,  54  L.  Ed.  65,  30  S.  Ct.  3. 


315 


351-352 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


within  their  respective  jurisdictions  the  equal  protection  of  the  laws  is  an  essen- 
tial constituent  of  the  due  process  of  law  guaranteed  by  the  fifth  amendment,, 
thus  making  that  principle  a  limitation  upon  the  powers  of  congress  as  effectual 
in  its  operation  as  if  it  had  been  expressed  in  so  many  words,  is  a  question  which 
has  never  been  decided.'^-''  It  is  well  settled,  however,  that  even  if  it  should  be 
conceded  or  assumed  that  the  due  process  clause  of  the  fifth  amendment  operates 
to  prohibit  congress  from  denying  the  equal  protection  of  the  laws,  the  prohibi- 
tion can  not  be  stricter  or  more  extensive  than  the  fourteenth  amendment  is  upon 
the  states ;  that  it  does  not  take  from  congress  the  power  to  classify,  nor  does  it 
condemn  executions  of  that  power  merely  because  they  occasion  some  inequal- 
ities. On  the  contrary,  it  admits  of  the  exercise  of  a  wide  discretion  in  classify- 
ing according  to  general  rather  than  minute  distinctions,  and  condemns  only  those 
discriminations  which  rest  upon  no  reasonable  basis,  and  which  are  purely  arbi- 
trary.*^-'' 

B.  Equal  Protection  as  Guaranteed  by  the  Fourteenth  Amendment — 
1.  Persons  Protecte:.d — a.  Citi::ens  and  Aliens. — See  ante,  Ai^iiiNs,  p.  18;  post, 
Due  Process  oe  Law. 

b.    Corporations. — See  note  65. 


351-62a.  Equal  protection  as  guaranteed 
by  the  due  process  clause  of  the  fifth 
amendment. — United  States  v.  Heinze,  218 
U.  S.  532,  54  L.  Ed.  1139,  31  S.  Ct.  98; 
District  of  Columbia  v.  Brooke,  214  U.  S. 
138,  149,  53  L.  Ed.  941,  29  S.  Ct.  560; 
Flint  V.  Stone  Tracy  Co.,  220  U.  S.  107, 
55  L.  Ed.  389,  31  S.  Ct.  342;  Second  Em- 
ployers' Liability  Cases,  223  U.  S.  1,  56 
L.    Ed.   327,  32   S.   Ct.   169. 

351-62b.  Imposes  no  greater  restriction 
than  the  fourteenth  amendment  does  upon 
the  states. — Second  Employers'  Liability 
Cases,  223  U.  S.  1,  56  L  Ed.  327,  32  S. 
Ct.  169;  District  of  Columbia  v.  Brooke, 
214  U.  S.  138,  53  L  Ed.  941,  29  S.  Ct.  660; 
Flint  V.  Stone  Tracy  Co.,  220  U.  S.  107, 
55  L.  Ed.  389.  31  S.  Ct.  342;  United 
States  V.  Heinze,  218  U.  S.  532,  54  L  Ed. 
1139,  31  S.  Ct.  98;  Lindsley  v.  Natural  Car- 
bonic Gas  Co..  220  U.  S.  61,  78,  55  L.  Ed. 
369,  31   S.   Ct.   337. 

Federal  excise  tax  upon  corporations. 
— There  is  such  a  substantial  difference 
between  the  carrying  on  of  business  by 
corporations  and  the  same  business  when 
conducted  by  a  private  firm  or  individual 
as  would  justify,  even  were  the  principles 
of  the  fourteenth  amendment  to  the  fed- 
eral constitution  applicable,  the  excise 
imposed  by  Act  Aug.  5,  1909,  c.  6,  §  38, 
36  Stat.  113  (U.  S.  Comp.  St.  Supp.  1909, 
p.  844),  Upon  the  carrying  on  or  the  doing 
of  business  in  a  corporate  or  quasi  cor- 
porate capacity.  Flint  v.  Stone  Tracy  Co., 
220  U.  S.  107,  55   L  Ed.  389,  31   S.   Ct.  342. 

Federal  practice  in  criminal  cases — Dis- 
crimination against  accused  as  to  right  of 
appeal. — Congress  could,  by  Act  March  2, 
1907.  c.  2564,"^  34  Stat.  1246  (U.  S.  Comp. 
St.  Supp.  1909,  p.  220),  authorize  the  gov- 
ernment to  bring  up  a  criminal  case  from 
a  federal  circuit  court  to  the  supreme 
'court  when  a  demurrer  to  an  indictment 
has   been    svistained,    although    the     same 


privilege  is  denied  the  accused  when  the 
indictment  is  sustained,  even  assuming 
that  the  United  States  is  bound  to  afford 
the  equal  protection  of  the  laws  to  persons 
within  its  jurisdiction.  United  States  v. 
Heinze,  218  U.  S.  532,  54  L  Ed.  1139,  31 
S.  Ct.  98. 

352-65.  Corporations. — That  a  corpora- 
tion is  a  person,  within  the  meaning  of 
the  fourteenth  amendment,  is  no  longer 
open  to  discussion.  This  point  was  de- 
cided in  Pembina,  etc.,  Milling  Co.  v. 
Pennsylvania,  125  U.  S.  181,  31  L  Ed.  650, 
8  S.  Ct.  737,  wherein  this  court  declared: 
"The  inhibition  of  the  amendment  that  no 
state  shall  deprive  any  person  within  its 
jurisdiction  of  the  equal  protection  of  the 
laws  was  designed  to  prevent  any  person 
or  class  of  persons  from  being  singled  out 
as  a  special  subject  for  discriminating  and 
hostile  legislation.  Under  the  designation 
of  oerson  there  is  no  doubt  that  a  private 
corporation  is  included."  Southern  R.  Co.. 
V.  Greene,  216  U.  S.  400,  54  L.  Ed.  536,  30 
S.  Ct.  287. 

Corporations  subject  to  same  restric- 
tions which  could  not  be  enforced  as  to 
individuals. — But  since  a  corporation  has 
no  right  to  exist  except  by  permission  of 
the  state,  it  must  content  itself  with  such 
powers,  privileges  and  immunities  as  the 
state  may  see  fit  to  bestow  upon  it.  Not 
being  entitled  to  all  the  privileges  and  im- 
munities of  an  individual,  corporations- 
may  be  restricted  in  ways  in  which  an  in- 
dividual could  not  be.  Berea  College  v. 
Commonwealth,  211  U.  S.  45,  53  L.  Ed.  81, 
29   S.   Ct.  33. 

Thus  the  Kentucky  Statute  Act  of  1904, 
ch.  85,  forbidding  the  teaching  of  white 
and  negro  children  in  the  same  schools, 
was  upheld  as  against  a  corporation,  al- 
though it  was  admitted  that  some  of  its 
provisions  might  be  invalid  if  applied  to- 
individuals.      Berea    College    v.    Common- 


316 


Vol.  IV 


CONSTITUTIONAL  LAW. 


353-355 


c.  Protects  Only  Those  Persons  and  Corporations  within  the  lurisdiction  of 
the  State. — See  notes  68,  70. 

2.  Nature  and  Object  of  the  Guaranty — c.  Refers  to  Infringement  by  the 
States;  Not  by  Individuals. — See  notes  74,  75. 


wealth,  211  U.  S.  45,  53  L.  Ed.  81,  29  S. 
Ct.  33. 

See  further,  as  to  special  legislation 
based  upon  the  fact  that  the  thing  af- 
fected is  a  corporation,  post,  "Classifica- 
tion jMust  Be  Reasonable,  Arbitrary  and 
Hostile  Classification  Forbidden,"  VII,  B, 
2,  h,  (8). 

353-68.  Foreign  corporations  must  have 
come  within  the  jurisdiction. — Where  a 
foreign  corporation,  with  the  permission 
of  the  state,  has  come  into  its  borders  for 
the  purpose  of  carrying  on  business,  and, 
under  the  sanction  of  state  law,  has  ac- 
quired a  large  amount  of  property  within 
the  state,  it  is  a  person  within  the  state 
within  the  meaning  of  the  equal  protec- 
tion clause  of  the  fourteenth  amendment, 
and  is  entitled  to  the  protection  of  that 
clause;  and  a  state  law  which  undertakes 
to  prevent  such  corporations  from  resort- 
ing to  the  federal  courts  for  the  protection 
of  their  rights,  and  which  forbids  them  to 
undertake  to  remove  causes  from  the  state 
to  the  federal  courts,  under  penalty  of  a 
forfeiture  of  their  right  to  do  business 
within  the  state,  but  which  imposes  no 
such  restrictions  as  to  domestic  corpora- 
tions, is  unconstitutional  as  a  denial  of  the 
equal  protection  of  the  laws  guaranteed 
by  the  fourteenth  amendment.  Herndon 
V.  Chicago,  etc.,  R.  Co.,  218  U.  S.  135,  54 
L.  Ed.  970,  30  S.  Ct.  633;  Roach  v.  Atchin- 
son,  etc.,  R.  Co.,  218  U.  S.  159.  54  L.  Ed. 
978,  30  S.  Ct.  639.  See,  also,  Western 
Union  Tel.  Co.  v.  Coleman,  216  U.  S.  1, 
54  L.  Ed.  355,  30  S.  Ct.  190;  Pullman  Co. 
V.  Coleman.  216  U.  S.  56,  54  L.  Ed.  378,  30 
S.  Ct.  232:  Ludwig  v.  Western  Union  Tel. 
Co.,  216  U.  S.  146,  54  L.  Ed.  423.  30  S.  Ct. 
280:  Southern  R.  Co.  v.  Greene,  216  U. 
S.  400,  54  L.  Ed.  536,  30  S.  Ct.  287. 

A  foreign  railway  corporation  which 
has  come  into  the  state  in  compliance  with 
its  laws,  and  has  therein  acquired  property 
•of  a  permanent  nature,  upon  which  it  has 
paid  all  state  taxes,  is  a  person  within  the 
jurisdiction  of  the  state,  and  is  protected 
by  the  equal  protection  clause  of  the 
fourteenth  amendment  of  the  federal  con- 
stitution against  the  imposition,  under 
Code  Ala.  1907,  §§  2391-2400,  of  an  addi- 
tional franchise  tax  for  the  privilege  of 
doing  business  within  the  state,  where  no 
such  tax  is  imposed  upon  domestic  cor- 
porations carrying  on  a  similar  business. 
Southern  R.  Co.  v.  Greene.  216  U.  S.  400, 
54  L.  Ed.  536,  30  S.  Ct.  287;  Louisville, 
etc..  R.  Co.  V.  Gaston.  216  U.  S.  418,  54 
L.    Ed.    542.   30    S.    Ct.   291. 

354-70.  Expulsion  of  foreign  corporation 
by  special  act  or  proceedings. — .\  foreign 
■corporation    ousted    and    fined    fifty    thou- 


sand dollars  in  civil  quo  warranto  pro- 
ceedings in  the  highest  court  of  the  state, 
for  a  misuser  of  its  license  to  do  business 
within  the  state,  can  not  claim  to  have 
been  denied  the  equal  protection  of  the 
laws  because  corporation  prosecuted  in 
the  inferior  state  courts  for  identically  the 
same  acts,  in  violation  of  the  state  Anti- 
Trust  Act,  are  entitled  to  a  trial  by  jury, 
and,  if  convicted,  can  be  ousted  of  their 
franchises  and  subjected  to  a  fine  not  to 
exceed  one  hundred  dollars  per  day  dur- 
ing the  time  the  combination  continued  in 
efifect.  Standard  Oil  Co.  v.  Missouri,  224 
U.   S.  270,   56   L.   Ed.   760,  32    S.    Ct.   406. 

355-74.  Refers  to  state,  and  not  individ- 
ual infringement. — The  restriction  and 
prohibitions  embodied  in  the  fourteenth 
amendment  operate  as  a  restriction  upon 
state  action  solely,  and  not  upon  individ- 
uals. Instead  of  being  general,  as  in  the 
case  of  the  prohibition  of  slavery  and  in- 
voluntary servitude  contained  in  the 
thirteenth  amendment,  the  inhibition  is 
"that  no  state"  shall  deprive  any  person 
of  life,  liberty  or  property  except  by  due 
process  of  law,  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection 
of  the  laws,  etc.  United  States  v.  Powell, 
212  U.  S.  564,  53  L.  Ed.  653,  following 
Hodges  V.  United  States,  203  U.  S.  1,  51 
L.   Ed.  65,  27  S.  Ct.  6. 

355-75.  Refers  to  all  the  agencies  and 
instrumentalities  of  the  state. — The  pro- 
visions of  the  fourteenth  amendment  are 
not  confined  to  the  action  of  the  state 
through  its  legislature,  or  through  the  ex- 
ecutive or  judicial  authority.  Those  pro- 
visions relate  to  and  cover  all  the 
instrumentalities  by  which  the  state  acts, 
and  so  it  has  been  held  that  whoever,  bj' 
virtue  of  public  position  under  a  state  gov- 
ernment, deprives  another  of  any  right 
protected  by  that  amendment  against  dep- 
rivation by  the  state,  violates  the  con- 
stitutional inhibition,  and  as  he  acts  in 
the  name  of  the  state  and  for  the  state, 
and  is  clothed  with  the  state's  powers,  his 
act  is  that  of  the  state.  Chicago,  etc.,  R. 
Co.  z'.  Chicago,  166  U.  S.  226,  41  L.  Ed. 
979,  17  S.  Ct.  581;  Ravmond  v.  Chicago 
Union  Tract.  Co.,  207  U.  S.  20,  52  L.  Ed. 
78,   28   S.   Ct.  7. 

The  action  of  a  state  through  any  of  its 
officers  charged  with  the  administration 
of  the  law  may  be  of  such  a  character  as 
to  constitute  a  denial  of  the  equal  pro- 
tection of  the  laws.  Bailey  v.  .Mabama, 
219  U.  S.  219.  55  L.  Ed.  191,  31  S.  Ct.  145. 

The  judicial  act  of  the  highest  court  of 
the  state,  in  authoritatively  construing  and 
enforcing  its  laws,  is  the  act  of  the  state. 
Twining  v.  New  Jersey,  211   U.   S.  78,  90, 


317 


356-358 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


i.   As  a  Limitation  upon  the  Police  Pozver. — See  note  79. 

g.    Has   No    Concern    with    the    Impolicy    or    Injustice  of    Legislation. — See 
note  82. 


53  L.  Ed.  97,  29  S.  Ct.  14;  Ex  parte  Vir- 
ginia, 100  U.  S.  339,  25  L.  Ed.  676;  Scott 
V.  McN'eal,  154  U.  S.  34,  38  L.  Ed.  896; 
Chicago,  etc.,  R.  Co.  v.  Chicago,  166  U.  S. 
226,    41    E.    Ed.    979,    17    S.    Ct.    581. 

An  ordinance  is  to  be  regarded  as  in 
effect  a  statute  of  the  state,  adopted  un- 
der a  power  granted  it  by  the  state  legis- 
lature, and  hence, it  is  an  act  of  the  state 
within  the  fourteenth  amendment.  North 
American  Cold  Storage  Co.  v.  Chicago, 
211  U.  S.  306,  53  L.  Ed.  195,  29  S.  Ct.  101; 
New  Orleans  Waterworks  Co.  v.  Louisi- 
ana Sugar  Refin.  Co.,  125  U.  S.  18,  31,  31 
L.   Ed.  607,  8   S.   Ct.  741. 

The  Illinois  state  board  of  equalization, 
when  making  an  assessment  pursuant  to 
the  supposed  command  of  a  writ  of  man- 
damus, represents  the  state,  there  being 
no  method  of  reviewing  its  decision  ex- 
cept by  judicial  proceedings  for  relief 
from  the  assessment,  and  its  action  is 
therefore  repugnant  to  Const.  U.  S.  Amend. 
14,  if  it  denies  anyone  equal  protection  of 
the  laws  protected  by  that  amendment 
against  impairment  by  the  state.  Judg- 
ment, Chicago  Union  Traction  Co.  v. 
State  Board  of  Equalization  (C.  C.  1902), 
114  F.  557;  Chicago  Consol.  Traction  Co. 
V.  Same,  Id.;  South  Chicago  City  Ry. 
Co.  V.  Baird,  Id.;  Chicago  Edison  Co. 
V.  Raymond,  Id.;  Chicago  City  Ry.  Co. 
V.  Same,  Id.;  People's  Gas  Light  & 
Coke  Co.  V.  Same,  Id.;  Chicago  Telephone 
Co.  V.  Same,  Id.,  affirmed.  Raymond  v. 
Chicago  Union  Tract.  Co.,  207  U.  S.  20, 
52  L.  Ed.  78,  28  S.  Ct.  7;  Raym.ond  v. 
Chicago  Edison  Co.,  207  U.  S.  42,  52  L. 
Ed.  89,  28  S.  Ct.  14. 

356-79.  As  a  limitation  upon  the  police 
power. — The  fourteenth  amendment  does 
not  operate  to  deprive  the  states  of  their 
lawful  power,  and  of  the  right,  in  the 
exercise  of  such  power,  to  resort  to  rea- 
sonable methods  inherently  belonging  to 
the  power  exerted.  On  the  contrary,  the 
provisions  of  the  due  process  clause  re- 
strain only  those  arbitrary  and  unreason- 
able exertions  of  power  which  are  not 
really  within  lawful  state  power,  since 
they  are  so  unreasonable  and  unjust  as 
to  impair  or  destroy  fundamental  rights. 
American  Land  Co.  v.  Zeiss,  219  U.  S.  47, 
55  L.  Ed.  82,  31  S.  Ct.  200. 

And  in  determining  whether  a  person 
has  been  denied  the  equal  protection  of 
the  laws  or  deprived  of  his  property  with- 
out due  process  of  law  in  violation  of  the 
fourteenth  amendment,  we  are  to  give  to 
that  amendment  and  to  the  alleged  ob- 
jectionable legislation  a  practical  con- 
struction in  the  light  of  concrete  facts  and 
existing  conditions,  especially  local  con- 
ditions and   the   nature   of  the   evil  which 


it  is  sought  to  reach  and  correct.  To 
quote  the  language  of  Mr.  Justice  Holmes 
in  a  recent  case:  "We  must  be  cautious 
about  pressing  the  broad  words  of  the 
fourteenth  amendment  to  a  drily  logical 
extreme.  Many  laws  which  it  would  be 
vain  to  ask  the  court  to  overthrow  could 
be  shown,  easily  enough,  to  transgress  a 
scholastic  interpretation  of  one  or  an- 
other of  the  great  guarantees  in  the  bill 
of  rights.  They  more  or  less  limit  the 
liberty  of  the  individual,  or  they  diminish 
property  to  a  certain  extent.  We  have 
few  scientifically  certain  criteria. of  legis- 
lation, and  as  it  is  often  difficult  to  mark 
the  line  where  what  is  called  the  police 
power  of  the  states  is  limited  by  the  con- 
stitution of  the  United  States,  judges 
should  be  slow  to  read  into  the  latter  a 
nolumus  mutare  as  against  the  law  mak- 
ing power."  Noble  State  Bank  v.  Has- 
kell, 219  U.  S.  104,  55  L.  Ed.  112,  31  S.  Ct. 
18G,  followed  in  Shallenberger  v.  First 
State  Bank,  219  U.  S.  114,  55  L.  Ed.  117, 
31  S.   Ct.  189. 

The  due  process  and  equal  protection 
clauses  of  the  fourteenth  amendment  dO' 
not  limit  the  powers  of  a  state  in  dealing 
with  crime  committed  within  its  borders 
or  with  the  punishment  thereof,  although 
no  state  can  deprive  particular  persons  or 
classes  of  persons  of  equal  and  impartial 
justice  under  the  law.  Ughbanks  v.  Arm- 
strong, 208  U.  S.  481,  52  L.  Ed.  582,  28  S- 
Ct.  372. 

358-82.  Has  no  concern  with  the  im- 
policy or  injustice  of  legislation. — The 
legislature,  being  familiar  with  local  con- 
ditions, is  primarily  the  judge  of  the  neces- 
sity of  such  enactments,  and  the  mere 
fact  that  a  court  may  differ  with  the  leg- 
islature in  its  views  of  public  policy,  or  that 
judges  may  hold  views  inconsistent  with 
the  propriety  of  the  legislation  in  ques- 
tion, affords  no  ground  for  judicial  inter- 
ference, unless  the  act  in  question  is  un- 
mistakably and  palpably  in  excess  of  leg- 
islative power.  Williams  v.  Arkansas,  217 
U.  S.  79,  54  L.  Ed.  673,  30  S.  Ct.  493.  See, 
also,  ante,  "Judicial  Control  of  Legislative 
Discretion,"  VI,  D,  3,  d,   (4),   (b).  (bb). 

It  is  for  the  state,  keeping  within  the 
limits  of  its  constitutional  powers,  to  say 
what  particular  means  it  will  prescribe  for 
the  protection  of  the  public  in  such  mat- 
ters, and  although  the  means  adopted  may 
not  be  the  best  that  could  have  been  de- 
vised, the  court  can  not  for  that  reason 
declare  them  illegal  or  beyond  the  power 
of  the  state  to  establish,  unless  they  are 
not,  in  any  real  or  substantial  sense, 
germane  to  the  end  sought  to  be  attained 
by  the  statute.  German  Alliance  Ins.  Co. 
7'.  Hale,  219  U.  S.  307,  55  L.  Ed.  229,  37 
S.  Ct.  246. 


318 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


358-361 


h.    Equality    Rule  Does    Not  Require    Statute  to    Operate    Indiscriminately ; 
Admits  of  Classification — (1)    Generally. — See  note  83. 

(5)  Nor  in  All  Portions  of  the  Same  State. — See  note  88. 

(6)  Nor  in  All  Portions  of  the  Sa)ne  City. — See  note  94. 


358-83.  Equality  rule  admits  of  classifi- 
cation.— The  equal  protection  clause  of 
the  fourteenth  amendment  does  not  take 
from  the  state  the  power  to  classify  in 
the  adoption  of  police  lavv^s,  but  admits  of 
the  exercise  of  a  wide,  scope  of  discretion 
in  that  regard,  and  avoids  what  is  done 
only  when  it  is  without  any  fair  and  rea- 
sonable basis,  and  therefore  is  purely  ar- 
bitrary. Lindsley  v.  Natural  Carbonic 
Gas  Co.,  220  U.  S.  61,  55  L.  Ed.  369,  31  S. 
Ct.  337;  Williams  v.  Walsh,  223  U.  S.  415, 
56  L.  Ed.  253,  32  S.  Ct.  137;  German  Alli- 
ance Ins.  Co.  V.  Hale.  219  U.  S.  307,  55 
L.  Ed.  229,  31  S.  Ct.  246;  Williams  v.  Ar- 
kansas, 217  U.  S.  79,  54  L.  Ed.  673,  30  S. 
Ct.  493;  District  of  Columbia  v.  Brooke, 
214  U.  S.  138,  53  L.  Ed.  941,  29  S.  Ct. 
560;  Heath,  etc.,  Mfg.  Co.  v.  Worst,  207 
U.   S.  338,  52  L.  Ed.  236,  28   S.  Ct.  114. 

The  fourteenth  amendment  is  not  to 
be  construed  as  introducing  a  factitious 
equality  without  regard  to  practical  dif- 
ferences that  are  best  met  by  correspond- 
ing dififerences  of  treatment.  Graham  v. 
West  Virginia,  224  U.  S.  616.  56  L.  Ed.  917, 
32  S.  Ct.  583;  Standard  Oil  Co.  v.  Ten- 
nessee, 217  U.  S.  413,  420,  54  L.  Ed.  817, 
30   S.   Ct.   543. 

Does  not  forbid  statutes  and  statutory 
changes  to  have  a  beginning. — The  four- 
teenth amendment  does  not  forbid  stat- 
utes and  statutory  changes  to  have  a  be- 
ginning, and  thus  to  discriminate  be- 
tween rights  of  an  earlier  and  later  time. 
Sperry,  etc.,  Co.  v.  Rhodes,  220  U.  S.  502, 
55  L.  Ed.  561,  31  S.  Ct.  490;  Williams  v. 
Walsh,  222  U.  S.  415,  56  L.  Ed.  253,  32  S. 
Ct.   137. 

For  example  a  statute  which  makes  it 
a  misdemeanor  to  use  the  name,  portrait 
or  picture  of  any  living  person  for  ad- 
vertising purposes  without  the  written 
consent  of  such  person,  first  obtained, 
and  which  gives  a  right  of  action  to  the 
person  whose  name,  portrait  or  picture  is 
so  used,  is  not  obnoxious  to  the  equal  pro- 
tection clause  of  the  fourteenth  amend- 
ment, because,  by  its  express  terms,  the 
statute  is  made  to  apply  only  to  the  use 
of  photographs  taken  after,  and  not  to 
those  taken  previous  to  its  enactment. 
Sperry,  etc.,  Co.  v.  Rhodes,  220  U.  S.  502, 
55  L.   Ed.   561,  31   S.   Ct.  490. 

Legislation  which  makes  acts  criminal 
which  are  done  after  they  are  forbidden, 
and  which  assigns  no  penalties  to  acts 
done  in  pursuance  of  obligations  pre- 
viously legally  incurred,  is  not  arbitrary 
classification.  Williams  v.  Walsh,  222  U. 
S.   415,   56   L.   Ed.   253,   32    S.    Ct.   1.37. 

The  exception  in  favor  of  existing  con- 


tracts, contained  in  Laws  Kan.  1907,  c. 
250,  making  it  criminal  to  sell  or  deliver 
black  powder  for  use  in  any  coal  mines 
in  the  state  except  in  original  sealed 
packages  containing  twelve  and  one-half 
pounds  of  powder,  does  not  make  such 
statute  repugnant  to  the  fourteenth 
amendment  as  denying  the  equal  protec- 
tion of  the  laws.  Williams  v.  Walsh,  222 
U.   S.  415,  56  L.  Ed.  253,  32  S.   Ct.  137. 

359-88.  Nor  in  all  portions  of  the  same 
state — Forfeitures  for  failure  to  list  prop- 
erty and  pay  taxes. — The  provisions  for 
the  forfeiture  of  land  titles  to  the  state 
for  failure  to  list  and  pay  taxes  thereon 
for  certain  specified  years,  made  by  Ky. 
Act  of  March  15,  1906,  art.  3,  do  not  deny, 
the  equal  protection  of  the  laws  because, 
in  the  application  of  such  statute,  it  can 
only  meet  conditions  such  as  are  em- 
braced within  the  law  in  a  part  of.  the 
counties  of  the  state.  Kentucky  Union 
Co.  V.  Commonwealth,  219  U.  S.  140,  55  L. 
Ed.  137,  31  S.  Ct.  171. 

Same — Tenement  house  act — Discrimi- 
nation as  to  localities. — The  fact  that  the 
Tenement  House  Act  (Laws  1901,  p.  912, 
c.  334,  §  100,  as  amended  by  Laws  1902, 
p.  937,  c.  352,  §  47),  is  applicable  to  tene- 
ment houses  in  cities  of  the  first  class 
only,  does  not  render  it  a  violation  of  the 
fourteenth  amendment  to  the  United 
States  constitution,  forbidding  any  state 
to  deny  to  any  person  within  its  jurisdic- 
tion equal  protection  of  the  laws.  Judg- 
ment, Tenement  House  Department  of 
City  of  New  York  v.  Moeschen  (1904),  72 
N.  E.  231,  179  N,  Y.  325,  70  L.  R.  A.  704, 
103  Am.  St.  Rep.  910,  affirmed.  Moeschen 
v.  Tenement  House  Department.  203  U. 
S.   583.   51    L.   Ed.   328,   27   S.    Ct.   781. 

361-94.  Nor  in  all  portions  of  the  same 
city  regulating  height  of  buildings. — Equal 
protection  of  the  laws  is  not  denied  an 
owner  of  property  in  the  residential  sec- 
tion of  Boston  by  the  discrimination  or 
classification  made  between  the  com- 
mercial and  residential  sections  of  that 
city  by  Pub.  Acts  Mass.  1904,  p.  283,  c. 
333,  and  Acts  1905,  p.  309,  c.  383,  limiting 
the  height  of  buildings  in  the  commercial 
district^to  125  feet,  and  in  the  residential 
districts  to  from  80  to  100  feet.  Judgment, 
79  N.  E.  745,  193  Mass.  364.  118  Am.  St. 
Rep.  523.  Welch  v.  Swasey,  214  U.  S. 
91,  53  L.  Ed.  923,  29  S.  Ct.  567. 

In  passing  upon  questions  of  this  char- 
acter as  to  the  validity  and  rea.sonable- 
ness  of  a  discrimination  or  classification 
in  relation  to  limitations  as  to  height  of 
buildings  in  a  large  city,  the  matter  of  lo- 
cality assumes  an  important  aspect.     The 


319 


361-363 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


(7)  But    Requires  Uniformity    as  to  All   in  Like    Circumstances  zuitliin    the 
Sphere  of  Its  Operation. — See  note  95. 

(8)  Classification  Must  Be  Reasonable;   Arbitrary  and  Hostile  Classification 
Forbidden. — See  notes  97,  98,  1. 


particular  circumstances  prevailing  at  the 
place  or  in  the  state  where  the  law  is  to 
become  operative,  whether  the  statute  is 
really  adapted,  regard  being  had  to  all 
the  dififerent  and  material  facts,  to  bring 
about  the  results  desired  from  its  passage; 
whether  it  is  well  calculated  to  promote 
the  general  and  public  welfare,  are  all 
matters  which  the  state  court  is  familiar 
with;  but  a  like  familiarity  can  not  be  as- 
cribed to  the  federal  supreme  court,  even 
assuming  that  judicial  notice  may  be 
taken  of  what  is  or  ought  to  be  generally 
known.  For  such  reason  that  court,  in 
cases  of  this  kind,  feels  the  greatest  re- 
luctance in  interfering  with  the  well 
considered  judgments  of  the  courts  of  a 
"State  whose  people  are  to  be  affected  by 
the  operation  of  the  law.  The  highest 
court  of  the  state  in  which  statutes  of  the 
kind  under  consideration  are  passed  is 
more  familiar  with  the  particular  causes 
which  led  to  their  passage,  although  they 
may  be  of  a  public  nature,  and  with  the 
general  situation  surrounding  the  subject 
matter  of  the  legislation  than  that  court 
can  possibly  be,  "We  do  not,  of  course," 
says  that  court,  "intend  to  say  that,  under 
such  circumstances,  the  judgment  of  the 
state  court  upon  the  question  will  be  re- 
garded as  conclusive,  but  simply  that  it 
is  entitled  to  the  very  greatest  respect, 
and  will  only  be  interfered  with,  in  cases 
of  this  kind,  where  the  decision  is,  in  our 
judgment,  plainly  wrong."  Welch  ?'. 
Swasey,  214  U.  S.  91,  53  L.  Ed.  923,  29 
S.   Ct.  5G7. 

361-95.  Requires  uniformity  as  to  all  in 
like  circumstances  within  the  sphere  of  its 
operation. — Statutes  that  apply  equally  to 
all  of  the  same  class  and  under  like  con- 
ditions can  not  be  to  deny  the  equal  pro- 
tection of  the  laws,  since  "the  equal  pro- 
tection of  the  laws  is  a  pledge  of  the 
protection  of  equal  laws"  to  all  under  like 
circumstances.  German  Alliance  Ins.  Co. 
V.  Hale,  219  U.  S.  307.  55  L-  Ed.  229,  31 
S.  Ct.  246,  and  cases  cited. 

It  is  settled  that  legislation  which  in 
carrying  out  a  public  purpose,  is  limited 
in  its  application,  is  not  within  the  pro- 
hibition contained  in  the  fourteenth 
amendment,  if  within  the  sphere  of  its 
operation  it  af¥ects  alike  all  persons  simi- 
larly situated.  Williams  t'.  Arkansas,  217 
U.  S.  79,  54  Iv.  Ed.  673,  30  S.  Ct.  493;  Mis- 
souri, etc..  R.  Co.  v.  May,  194  U.  S.  267, 
48  L.   Ed.  971,  24   S.   Ct.   63S. 

362-97.  Laws  must  be  reasonable — Ar- 
bitrary classification  forbidden. — It  is  ele- 
mentary that  the  contention  that  a  statute 
is  opposed  to   the  equal  protection   clause 


of  the  fourteenth  amendment  is  to  be 
tested  by  considering  whether  there  is  a 
reasonable  basis  for  the  classification  made 
by  the  statute.  Finley  v.  California,  222 
U.   S.  28,  56   L.   Ed.   75,  32   S.    Ct.   13. 

While  reasonable  classification  is  per- 
mitted, without  doing  violence  to  the 
equal  protection  of  the  laws,  such  classifi- 
cation must  be  based  upon  some  real  and 
substantial  distinction,  bearing  a  reason- 
able and  just  relation  to  the  things  in  re- 
spect to  which  such  classification  is  im- 
posed; and  classification  can  not  be  arbi- 
trarily made  without  any  substantial  basis. 
Arbitrary  selection,  it  has  been  said,  can 
not  be  justified  by  calling  it  classification. 
Southern  R.  Co.  v.  Greene,  216  U.  S.  400, 
54  L.   Ed.  536,  30   S.   Ct.  287. 

363-98.  A  pledge  of  equal  laws. — The 
equal  protection  of  the  laws  means  sub- 
jection to  equal  laws,  applying  alike  to 
all  in  the  same  situation.  Southern  R. 
Co.  V.  Greene,  216  U.  S.  400.  54  L.  Ed.  536, 
30  S.   Ct.  287. 

Statutes  that  apply  equally  to  all  of  the^ 
same  class  and  under  like  conditions  can 
not  be  held  to  deny  the  equal  protection 
of  the  laws;  for,  as  the  federal  supreme 
court  has  adjudged,  "the  equal  protection 
of  the  laws  is  a  pledge  of  the  protection 
of  equal  laws"  to  all  under  like  circum- 
stances. German  Alliance  Ins.  Co.  v. 
Hale,  219  U.  S.  307,  55  L.  Ed.  229,  31  S. 
Ct.  246;  Yick  Wo  v.  Hopkiits,  118  U.  S. 
356,  367,  30  L-  Ed.  220,  6  S.  Ct.  1064;  Bar- 
bier  V.  Connolly,  113  U.  S.  27,  28  L.  Ed. 
923,  5  S.  Ct.  357;  Soon  Hing  v.  Crowley, 
113  U.  S.  703,  28  L.  Ed.  1145,  5  S.  Ct.  730. 

363-1.  Classification  based  upon  fact  of 
incorporation. — Since  a  corporation  has 
no  right  to  exist,  except  by  permission  of 
the  state,  it  must  content  itself  with  such 
poweis,  privileges,  and  immunities  as  the 
state  may  see  fit  to  bestow  upon  it.  Not 
being  entitled  to  all  the  privileges  and  im- 
munities of  an  individual,  the  corporation 
may  be  restricted  in  ways  in  which  an  m- 
dividual  could  not  be.  Berea  College  v. 
Commonwealth,  211  U.  S.  45,  53  L.  Ed. 
81,  29   S.   Ct.   33. 

Although  it  be  conceded  that  the  pro- 
visions of  a  statute  regulating  corporations 
doing  business  within  its  borders  can  not, 
consistently  with  constitutional  limitations 
be  applied  to  individuals,  such  concession 
would  not  cause  the  act  to  amount  to  a 
denial  of  the  equal  protection  of  the  laws. 
The  difference  between  the  extent  of  the 
power  which  the  state  may  exert  over  the 
doing  of  business  within  the  state  by  an 
individual  and  that  which  it  can  exercise 
as  to  corporations  furnishes  a  distinction 


320 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


363 


(9)    Rigid    Equality  Not  Required;    Legislature    Permitted  a   Wide    Discre- 
tion.— See  notes  2,  3,  5,  6,  7. 


authorizing  a  classification  between  the 
two.  Hammond  Packing  Co.  z'.  Arkansas, 
212  U.  S.  322,  343,  53  L.  Ed.  530,  29  S.  Ct. 
370. 

Same — Rules  as  to  production  of  evi- 
dence, books,  papers,  etc. — The  fact  that 
the  remedy  given  by  an  act  for  the  pro- 
duction of  books  and  papers  and  the  ex- 
amination of  witnesses  is  confined  to 
corporations  and  joint  stock  associations, 
and  does  not  extend  to  individuals,  fur- 
nishes no  ground  for  the  proposition  that 
a  denial  of  the  equal  protection  of  the 
laws  thereby  resulted.  The  wider  scope 
of  the  power  which  the  state  possesses 
over  corporations  and  joint  stock  associa- 
tions in  and  of  itself  affords  a  ground  for 
the  classification  adopted.  Hammond 
Packing  Co.  v.  Arkansas,  212  U.  S.  322, 
349,  .53  L.   Ed.  530,  29  S.  Ct.  370. 

Abolishing  fellow-servant  rule  as  to 
corporations. — Abolishing  fellow- servant 
rule  as  to  corporations  operating  rail- 
roads within  the  state,  as  is  done  by  Act 
Ark.  March  8,  1907,  p.  162,  does  not  deny 
s.uch  a  corporation  the  equal  protection 
of  the  laws  because  the  statute  does  not 
apply  to  individual  employers.  Alumi- 
num Co.  V.  Ramsey,  222  U.  S.  251,  56  L. 
Ed.  185,  32  S.  Ct.  76,  affirming  89  Ark. 
522.   117   S.   W.   568. 

The  distinction,  among  others,  it  makes 
is  between  railroads  operating  in  the 
state  and  individuals,  and  such  distinc- 
tion has  been  maintained  by  this  court  as 
not  ofifending  the  constitution  of  the 
United  States.  Aluminum  Co.  v.  Ramsey, 
232  U.  S.  251,  56  L.  Ed.  185,  32  S.  Ct.  76; 
Tullis  c'.  Lake  Erie,  etc.,  R.  Co.,  175  U. 
S.  348,  44  L.  Ed.  192,  20  S.  Ct.  136;  Min- 
nesota Iron  Co.  V.  Kline,  199  U.  S.  593, 
50  L.  Ed.  322,  26  S.  Ct.  159.  See,  also, 
The    Employers'    Liability    Cases,    207    U. 

5.  463,  504,  52  L.  Ed.  297,  28  S.  Ct.  141, 
and  El  Paso,  etc.,  R.  Co.  v.  Gutierrez, 
215  U.  S.  87.  54  L.  Ed.  106,  30  S.  Ct.  21. 

Excise  applicable  only  to  corporations. 
— There  is  such  a  substantial  difference 
between  the  carrying  on  of  business  by 
corporations  and  the  same  business  when 
conducted  by  a  private  firm  or  individ- 
ual as  would  justify,  even  were  the  prin- 
ciples of  the  fourteenth  amendment  to 
the  federal  constitution  applicable,  the 
excise    imposed    by    Act    Aug.    5,    1909,    c. 

6,  §  38,  36  Stat.  112  (U.  S.  Comp.  St.  Supp. 
1909,  p.  844),  upon  the  carrying  on  or 
the  doing  of  business  in  a  corporate  or 
quasi  corporate  capacity.  Flint  v.  Stone 
Tracy  Co.,  220  U.  S.  107,  55  L.  Ed.  389, 
31    S.    Ct.    342. 

Forbidding  corporation  to  conduct 
mixed  school  for  whites  and  negroes. — 
The  Kentucky  Act  of  1904,  ch.  85  forbid- 
ding  the    teaching     of     white    and    negro 

12    U    S    Enc— 21  321 


children  in  the  same  school  was  upheld 
as  against  a  corporation,  although  it  was 
admitted  that  the  same  provisions  might 
be  invalid  if  applied  to  individuals.  Berea 
College  V.  Commonwealth,  211  U.  S.  45, 
53    L.    Ed.    81,    29    S.    Ct.    33. 

363-2.  Rigid  equality  not  required — 
Legislature  permitted  a  wide  discretion. 
— -The  fourteenth  amendment  is  unquali- 
fied in  its  declaration  that  a  state  shall  not 
"deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws."  Passing 
on  that  amendment,  it  has  been  repeat- 
edly decided,  so  often  that  a  citation  of 
the  cases  is  unnecessary,  that  it  does  not 
take  from  the  states  the  power  of  clas- 
sification; and  also  that  such  classification 
need  not  be  either  logically  appropriate 
or  scientifically  accurate,  and  if  not  pal- 
pably arbitrary,  and  is  uniform  with  the 
class,  it  is  within  such  discretion.  Dis- 
trict of  Columbia  v.  Brooke,  214  U.  S. 
138,  53  L.  Ed.  941,  29  S.  Ct.  560;  Mutual 
Loan  Co.  V.  Martell.  222  U.  S.  225,  56  L. 
Ed.    175,    32    S.    Ct.    74. 

A  classification  which  is  not  arbitrary 
is  not  repugnant  to  the  constitution  of 
the  United  States.  Williams  v.  Walsh, 
222  U.   S.  415,  56  L.   Ed.  253,  32   S.   Ct.   137. 

Same — Distinction  between  residents 
and  nonresidents. — "The  problems  which 
are  met  in  the  government  of  human 
beings  are  different  from  those  involved 
in  the  examination  of  the  objects  of  the 
physical  world,  and  assigning  them  to 
their  proper  associates.  A  wide  range 
of  discretion,  therefore,  is  necessary  in 
legislation  to  mlake  it  practical,  and  we 
have  often  said  that  the  courts  can  not 
be  made  a  refuge  from  ill-advised,  un- 
just, or  oppressive  laws.  Billings  v.  Illi- 
nois, 188  U.  S.  97,  47  L.  Ed.  400,  23  S.  Ct. 
272:  Heath,  etc.,  Mfg.  Co.  v.  Worst,  207  U. 
S.  338,  52  L.  Ed.  236,  28  S.  Ct.  114.  In  the 
light  of  these  principles  the  contentions 
of  defendant  in  error  must  be  judged. 
The  act  in  controversy  makes  a  distinc- 
tion in  its  provision  between  resident  and 
nonresident  lot  owners,  but  this  is  a 
proper  basis  for  classification.  Regarded 
abstractly  as  human  beings,  regarded 
abstractly  as  lot  owners,  no  legal  diflfer- 
ence  may  be  observed  between  residents 
and  nonresidents;  but,  regarded  in  their 
relation  to  their  respective  jots  under 
regulating  laws,  the  limitations  upon 
jurisdiction,  and  the  power  to  reach  one 
and  not  the  other,  important  dififerences 
immediately  appear."  District  of  Colum- 
bia V.  Brooke,  214  U.  S.  138,  53  L.  Ed. 
941,    29    S.    Ct.    560. 

The  contention  that  because  a  statute 
relating  to  the  production  of  books  and 
papers  in  evidence  applies  only  to  books 
and    papers    outside    of    the    state,    there- 


365 


CONSTITUTIONAL  LA W. 


Vol.  IV. 


fore  it  denies  the  equal  protection  of  the 
laws  is  not  open,  since  it  has  been  con- 
clusively settled  that,  without  denying  the 
equal  protection  of  the  laws,  relations 
may  be  based  upon  the  fact  that  persons 
or  property  dealt  with  are  not  within 
the  territorial  jurisdiction  of  the  regulat- 
ing authority.  Hammond  Packing  Co.  v. 
Arkansas,  212  U.  S.  322,  349,  53  L.  Ed. 
530,  29  S.  Ct.  370.  Central  Loan,  etc., 
Co.  V.  Campbell  Comm.  Co.,  173  U.  S.  84, 
43   L.   Ed.   623. 

365-3.  Law  not  involved  because  of 
mere  inequality  of  result. — A  classifica- 
tion having  some  reasonable  basis  does 
not  offend  against  that  clause  merely 
because  it  is  not  made  with  mathemati- 
cal nicety,  or  because  in  practice  it  re- 
sults in  some  inequality.  Lindsley  v.  Nat- 
ural Carbonic  Gas  Co.,  220  U.  S.  61,  55 
L.    Ed.    369,    31    S.    Ct.    337. 

"You  can  not  carry  a  constitution  out 
with  mathematical  nicety  to  logical  ex- 
tremes. If  you  could,  we  never  should 
have  heard  of  the  police  power.  And 
this  is  still  more  true  of  taxation,  which 
in  most  communities  is  a  long  way  off 
from'  a  logical  and  coherent  theory." 
Paddell  v.  New  York,  211  U.  S.  446,  450, 
53    L.    Ed.    275,    29    S.    Ct.    139. 

It  is  settled  as  the  essential  result  of 
the  elementary  doctrine  that  the  equal 
protection  of  the  law  clause  does  not 
restrain  the  normal  exercise  of  govern- 
mental power,  but  only  abuse  in  the  ex- 
ertion of  such  authority,  therefore  that 
clause  is  not  offended  against  simply  be- 
cause, as  the  result  of  the  exercise  of 
the  power  to  classify,  some  inequality 
may  be  occasioned.  That  is  to  say,  as 
the  power  to  classify  is  not  taken  away 
by  the  operation  of  the  equal  protection 
of  the  law  clause,  a  wide  scope  of  leg- 
islative discretion  may  be  exerted  in  clas- 
sifying without  conflicting  with  the  con- 
stitutional prohibition.  Louisville,  etc.,  R. 
Co.  V.  Melton,  218  U.  S.  36,  54  L.  Ed. 
921,   30   S.   Ct.   676. 

In  Magoun  v.  Illinois  Trust,  etc..  Bank. 
170  U.  S.  283,  294,  42  L.  Ed.  1037,  18  S.  Ct. 
594,  there  is  no  precise  application  of 
the  rule  of  reasonableness  of  classifica- 
tion, and  the  rule  of  equality  permits 
many  practical  inequalities.  And  neces- 
sarily so.  In  a  classification  for  govern- 
mental purposes  there  can  not  be  an 
exact  exclusion  or  inclusion  of  persons 
and  things.  Louisville,,  etc.,  R.  Co.  v. 
Melton,  218  U.  S.  36,  54  L.  Ed.  921,  30 
S.   Ct.  676. 

365-5.  Greater  latitude  permitted  in  the 
exercise  of  the  taxing  power. — A  state 
does  not  deny  the  equal  protection  of  the 
laws  merely  by  adjusting  its  revenue  lav/s 
and  taxing  system  in  such  a  way  as  to 
favor  certain  industries  or  forms  of  in- 
dustry. Like  the  United  States,  although 
with  more  restriction  and  in  less  degree, 
the    state    may    carry    out   a    policy,    even 


though  it  be  a  policy  with  which  the 
courts  may  not  agree,  provided  the  dis- 
criminations made  by  it  are  founded  on 
distinctions  not  unreasonable  nor  purely 
arbitrary.  Quong  Wing  v.  Kirkendall, 
223  U.  S.  59,  56  L.  Ed.  350,  32  S.  Ct.  192. 
See,  also,  McLean  v.  Arkansas,  211  U. 
S.  539,  547,  53  L.   Ed.  315,  29  S.  Ct.  206. 

Thus,  if  the  state  sees  fit  to  encourage 
steam  laundries  and  discourage  hand 
laundries  by  adopting  a  system  of  taxa- 
tion that  bears  more  lightly  upon  the  one 
than  upon  the  other,  that  is  its  own  affair. 
Quong  Wing  v.  Kirkendall,  223  U.  S.  59, 
56  L.   Ed.  350,  32  S.  Ct.  192. 

365-6.  Presumption  in  favor  of  valid- 
ity.— One  who  assails  the  classification  in 
such  a  law  must  carry  the  burden  of 
showing  that  it  does  not  rest  upon  any 
reasonable  basis,  but  is  essentially  arbi- 
trary. Lindsley  v.  Natural  Carbonic  Gas 
Co.,  220  U.  S.  61,  55  L.  Ed.  369,  31  S.  Ct. 
337. 

In  Sweet  v.  Rechel,  159  U.  S.  380,  392, 
40  L.  Ed.  188,  16  S.  Ct.  43,  it  was  said: 
"But,  in  determining  whether  the  legisla- 
ture, in  a  particular  enactment,  has 
passed  the  limits  of  its  constitutional  au- 
thority, every  reasonable  presumption 
must  be  indulged  in  favbr  of  the  validity 
of  such  enactment.  It  must  be  regarded 
as  valid  unless  it  can  be  clearly  shown 
to  be  in  conflict  with  the  constitution." 
Home  Tel.,  etc.,  Co.  v.  Los  Angeles,  211 
U.    S.   265,   53   L.   Ed.   176,   29   S.   Ct.   50. 

Every  presumption  should  be  indulged 
in  favor  of  the  constitutionality  of  legis- 
lation including  legislation  prescribing 
rates.  Home  Tel.,  etc.,  Co.  z'.  Los  An- 
geles, 211  U.  S.  265,  281,  53  L.  Ed.  176, 
29  S.   Ct.  50. 

Presumption  of  circumstances  neces- 
sary to  sustain  validity. — It  is  a  well  set- 
tled rule  of  constitutional  exposition  that, 
if  a  statute  may  or  may  not  be,  accord- 
ing to  circumstances,  within  the  limits  of 
legislative  authority,  the  existence  of  the 
circumstances  necessary  to  support  it 
must  be  presumed.  Home  Tel.,  etc.,  Co. 
V.  Los  Angeles,  211  U.  S.  265,  53  L.  Ed. 
176,   29    S.    Ct.   50. 

When  the  classification  in  such  a  law 
is  called  in  question  if  any  state  of  facts 
reasonably  can  be  conceived  that  would 
sustain  it,  the  existence  of  that  state  of 
facts  at  the  time  the  law  was  enacted 
must  be  assumed.  Lindsley  v.  Natural 
Carbonic  Gas  Co.,  220  U.  S.  61,  55  L.  Ed. 
369,    31    S.    Ct.   337. 

Where  the  unconstitutionality  of  an  act 
is  attacked  on  the  ground  that  the  clas- 
sification made  by  it  is  opposed  to  the 
provision  guaranteeing  the  equal  protec- 
tion of  the  laws,  the  presumption  is  that 
such  classification  is  valid  if  any  such 
state  of  facts  as  would  sustain  it  can 
reasonably  be  conceived,  and  in  such  case 
the  court,  in  the  absence  of  evidence 
tending   to   show   the   absence   and   impos- 


322 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


365 


sibilitj^  if  such  a  state  of  facts,  may  look 
not  only  to  the  allegations  contained  in 
the  bill  or  petition  but  will  also  consider 
those  matters  within  the  range  of  com- 
mon knowledge  and  subject  to  judicial 
notice.  Lindsley  v.  Natural  Carbonic  Gas 
Co.,  220  U.  S.  61,  55  L.  Ed.  369,  31  S.  Ct. 
337;  Brown  v.  Piper,  91  U.  S.  37,  43,  23 
L.  Ed.  200;  Brown  v.  Spilman,  155  U.  S. 
665,  |70,  39  L.  Ed.  304,  15  S.  Ct.  245; 
McLean  &  Co.  v.  Denver,  etc.,  R.  Co.,  203 
U.  S.  38,  51,  51  L.  Ed.  78,  27  S.  Ct.  1;  Mc- 
Nichols  V.  Pease,  207  U.  S.  100,  111,  52  L- 
Ed.   121,  28  S.  Ct.  58. 

Must  be  palpably  unreasonable — 
Weight  given  to  local  conditions — Opin- 
ion of  legislature  and  local  courts. — 
When  the  state  legislature  has  declared 
that,  in  its  opinion,  policy  requires  a  cer- 
tain measure,  its  action  should  not  be 
disturbed  by  the  courts  under  the  four- 
teenth amendment,  unless  they  can  see 
clearly  that  there  is  no  fair  reason  for 
the  law  that  would  not  require  with  equal 
force  its  extention  to  others  whom  it 
leaves  untouched.  Williams  v.  Arkansas, 
217  U.  S.  79,  54  L.  Ed.  673,  30  S.  Ct.  493; 
Missouri,  etc.,  R.  Co.  v.  May,  194  U.  S. 
267,  48  L.  Ed.  971,  24  S.  Ct.  638;  Watson 
V.  Maryland,  218  U.  S.  173,  54  L.  Ed.  987. 
30   S.    Ct.    644. 

The  legislature,  being  familiar  with  lo- 
cal conditions,  is  primarily  the  judge  of 
the  necessity  of  such  enactments.  Tht 
mere  fact  that  a  court  may  dififer  with 
the  legislature  in  its  views  of  public 
policy,  or  that  judges  may  hold  views 
inconsistent  with  the  propriety  of  the 
legislation  in  question,  affords  no  ground 
for  judicial  interference,  unless  the  act 
under  consideration  is  unmistakably  and 
palpably  in  excess  of  legislative  power. 
Williams  v.  Arkansas,  217  U.  S.  79,  54  L. 
Ed.    673,    30    S.    Ct.    493. 

365-7.  In  passing  upon  questions  oi 
this  character,  the  particular  circum- 
stances prevailing  at  the  place  or  in  the 
state  where  the  law  is  to  become  opera- 
tive, whether  the  statute  is  really 
adopted,  regard  being  had  to  all  the  dif- 
ferent and  material  facts,  to  bring  about 
the  results  desired  from  its  passage; 
whether  it  is  well  calculated  to  promote 
the  general  and  public  welfare,  are  all 
matters  which  the  state  court  is  familiar 
with;  but  a  like  familiarity  can  not  be 
ascribed  to  the  supreme  court  of  the 
United  States,  even  assuming  that  judicial 
notice  may  be  taken  of  what  is  or  ought 
to  be  generally  known.  For  these  rea- 
sons, that  court,  in  cases  of  this  kind, 
will  feel  the  greatest  reluctance  in  inter- 
fering with  the  well  considered  judgments 
of  the  courts  of  the  state  whose  people 
are  to  be  affected  by  the  law.  The  highest 
court  of  the  state  in  which  the  statute 
was    passed    is    more     familiar    with     the 


causes  which  led  to  its  passage,  although 
they  may  be  of  a  public  nature,  and  with 
the  general  situation  surrounding  the  sub- 
ject matter  of  the  legislation,  than  the 
supreme  court  of  the  United  States  can 
possibly  be.  It  is  not  intended  to  say, 
of  course,  that,  under  such  circumstances, 
the  judgment  of  the  state  court  upon 
the  question  will  be  regarded  as  conclu- 
sive, but  simply  that  it  is  entitled  to  the 
very  greatest  respect,  and  will  only  l)e 
interfered  with,  in  cases  of  this  kind, 
where  the  decision  is,  in  the  judgment 
of  the  United  States  supreme  court,  plainly 
wrong.  Welsh  v.  Swasey,  214  U.  S.  91, 
53  L.  Ed.  923,  29  S.  Ct.  567. 

It  is  held  that  in  determining  whether 
the  fourteenth  amendment  has  been  vio- 
lated, and  an  individual  denied  the  equal 
protection  of  the  laws  or  deprived  of 
liberty  or  property  without  due  process 
of  law,  the  courts  must  be  cautious  about 
pressing  the  broad  words  of  that  amend- 
ment to  a  drily  logical  extreme.  Manj^ 
laws  which  it  would  be  vain  to  ask  the 
court  to  overthrow  could  be  shown  easily 
enough,  to  transgress  a  scholastic  inter- 
pretation of  one  or  another  of  the  great 
guarantees  in  the  bill  of  rights.  They 
more  or  less  limit  the  liberty  of  the  in- 
dividual, or  they  diminish  property  to  a 
certain  extent.  There  are  few  scientific- 
ally certain  criteria  of  legislation,  and- 
as  it  is  often  difficult  to  mark  the  line 
where  what  is  called  the  police  power  of 
the  states  is  limited  by  the  constitution 
of  the  United  States,  judges  should  be 
slow  to  read  into  the  latter  a  nolumus 
mutare  as  against  the  law  making  power. 
In  other  words,  the  fourteenth  amend- 
ment is  to  be  given  a  practical  construc- 
tion in  the  light  of  concrete  facts  and 
existing  conditions,  and  in  determining 
the  validity  of  legislation  alleged  to  be 
obnoxious  to  that  amendment,  the  courts 
will  take  into  consideration  the  local  con- 
ditions and  the  nature  of  the  evil  which 
it  was  intended  to  reach  and  correct. 
Noble  State  Bank  v.  Haskell,  219  U.  S. 
104,  55  L.  Ed.  112,  31  S.  Ct.  186,  followed 
in  Shallenberger  v.  First  State  Bank,  219 
U.  S.  114,  55  L.  Ed.  117,  31  S.  Ct.  189. 

The  criterion  is  not  the  possibility  of 
conceivable  injury,  but  the  just  and  rea- 
sonable character  of  the  requirements  of 
the  act,  having  reference  to  the  subject 
with  which  it  deals.  It  is  not  sufficient 
to  invalidate  the  act  that  now  and  then 
an  extraordinary  case  may  turn  up.  Con- 
stitutional law,  like  other  mortal  con- 
trivances, has  to  take  some  chances. 
Blinn  V.  Nelson,  222  U.  S.  1,  56  L.  Ed. 
65,  32  S.  Ct.  1 ;  American  Land  Co.  v. 
Zeiss,  219  U.  S.  47,  67,  55  L.  Ed.  82.  21 
S.  Ct.  200.  See,  also,  ante,  "Judicial  Con- 
trol of  Legislative  Discretion,"  VI,  D,  3, 
d,  (4),  (b),  (bb). 


323 


367-373 


CONSTITUTIONAL  LAW. 


\'ol.  lY. 


i.  Equality  Rule  Forbids  That  Indiz'idual  Shall  Be  Subjected  to  Arbitrary  Ex- 
ercise of  Pozver — (4)  Arbitrary  and  Oppressive  Administration  of  Statutes. — 
See  notes  15,  19. 

3.  ReguIwAtion  of  Business,  Trade,  Occupation  or  Profession — a.  Gen- 
erally.—See  note  23.     See,  also,  post,  Police  Power. 

b.    Right  to  Pursue   Lazvful  Occupation,    Acquire  and  Dispose  of   Property, 

without  Discrimination. — See  note  31. 

c 


367-15.  Where  statute  so  framed  as  to 
be  susceptible  of  arbitrary  or  oppressive 
administration — Possibility  of  evil  under 
statute. — See  ante,  "Rigid  Equality  Not 
Required:  Legislature  Permitted  a  Wide 
Discretion."  VIl,  B,  2,  h,  (9). 

368-19.  Vesting  discretion  in  some  sub- 
ordinate tribunal  board  or  officer. — The 
possibilit}-  that  the  comptroller  may  re- 
fuse a  license  to  a  private  banker  upon 
his  arbitrary  whim  does  not  invalidate, 
under  Const.  U.  S.  Amend.  14,  the  re- 
quirement of  Laws  N.  Y.  1910,  c.  348, 
that  a  license  from  that  official  be  ob- 
tained by  individuals  or  partnerships  de- 
siring to  engage  in  that  business.  Engel 
V.  O'Malley,  219  U.   S.  128,  55  L.   Ed.  128, 

31  S.    Ct.    191,    affirming    decree     (C.    C. 
1910\  182  F.  365. 

The  municipal  power  to  make  reason- 
able regulations  respecting  the  occupancy 
of  the  city  streets  by  a  telegraph  com- 
pany accepting  the  provisions  of  the  Act 
of  July  24,  1866,  giving  the  right  to  con 
struct,  maintain,  and  operate  lines  over 
the  post  roads  of  the  United  States,  is 
not  exceeded,  as  granting  arbitrary  dis- 
cretion to  municipal  officers,  by  an  ordi- 
nance which  leaves  to  the  determination 
of  the  city  engineer  the  size,  quality, 
character  number,  condition,  appearance, 
and  manner  of  erection  of  poles  and 
wires,  and  to  the  judgment  of  other  of- 
ficials the  safety  and  suitableness  of 
poles,  wires,  attachments,  insulations,  etc., 
and  which  empowers  the  committee  on 
streets  to  require  permission  to  be  given 
to  others  to  place  lighting  wires  upon 
the  poles,  where,  in  the  committee's  opin- 
ion, they  will  not  interfere  with  the 
owner's  business,  and  which  authorizes 
such  committee  to  pass  upon  under- 
ground plans,  and  invests  other  officials 
with  supervisory  powers  over  the  carry- 
ing out  of  such  plans,  including  the  lay- 
ing of  conduits  and  the  replacement  of 
paveinents.  Western  Union  Tel.  Co.  v. 
Richmond,   224   U.    S.    160,   56   L.    Ed.   710, 

32  S.    Ct.   449. 

There  is  nothing  in  the  constitution  of 
the  United  States  to  prevent  the  grant 
of  these  discretionary  powers  to  the  com- 
mittees and  officers  named.  Western 
Union  Tel.  Co.  v.  Richmond,  224  U.  S. 
160,    56    L.    Ed.    710,    32    S.    Ct.    449. 

372-23.  Regulation  of  business,  trade, 
occupation  or  profession. — In  Gundling  v. 
Chicago,    177  U.   S.   183,  44   L.    Ed.   725,  20 


S.  Ct.  633,  the  federr.l  supreme  court  sum- 
marized the  doctrine  as  follows:  "Regula- 
tions respecting  the  pursuit  of  a  lawful 
trade  or  business  are  of  very  frequent  oc- 
currence in  the  various  cities  of  the  coun- 
try, and  what  such  regulations  shall  be, 
and  to  what  particular  trade,  business,  or 
occupation  they  shall  apply,  are  questions 
for  the  state  to  determine,  and  their  de- 
termination comes  within  the  proper  ex- 
ercise of  the  police  power  by  the  state; 
and  unless  the  regulations  are  so  utterly 
unreasonable  and  extravagant  in  their 
nature  and  purpose  that  the  property  and 
personal  rights  of  the  citizens  are  un- 
necessarily, and  in  a  manner  wholly  ar- 
bitrary, interfered  with  or  destroyed,  with- 
out due  process  of  law,  they  do  not  ex- 
tend beyond  the  power  of  the  state  to 
pass,  and  they  form  no  subject  for  fed- 
eral interference."  Williams  v.  Arkansas, 
217  U.   S.  79,   54  L.   Ed.  673,  30  S.  Ct.  493. 

Insurance  companies,  and.  indeed,  all 
corporations,  associations,  and  individ- 
uals, within  the  jurisdiction  of  a  state 
are  subject  to  such  regulations,  in  respect 
to  their  relative  rights  and  duties,  as  the 
state  may.  in  the  exercise  of  its  police 
power,  and  in  harmony  with  its  own  and 
the  federal  constitution,  prescribe  for  the 
public  convenience  and  the  general  good. 
German  Alliance  Ins.  Co.  z:  Hale,  219  U. 
S.  307,  55  L.  Ed.  229,  31  S.  Ct.  246.  See, 
also.  House  v.  Mayes,  219  U.  S.  270,  55 
L.    Ed.    213,   31    S.    Ct.    234. 

It  may  be  stated  as  a  general  rule  that 
an  act  which  puts  in  one  class  all  engiged 
in  business  of  a  special  and  public  char- 
acter requires  of  them  the  performance  of 
a  duty  which  they  can  do  better  and  more 
quickly  than  others,  and  imposes  a  not 
exorbitant  penalty  for  a  failure  to  per- 
form that  duty  within  a  reasonable  time, 
can  not  be  adjudged  unconstitutional  as 
a  purely  arbitrary  classification.  Sea- 
board Air  Line  Railway  z'.  Seegers,  207 
U.  S.  73,  52  L.  Ed.  108,  28  S.  Ct.  28. 

373-31.  Regulating  different  branches 
of  the  same  business. — See  post,  POLICE 
POWER. 

As  is  said  in  Carroll  z'.  Greenwich  Ins. 
Co.,  199  U.  S.  401,  411.  50  L.  Ed.  246,  2G 
S.  Ct.  66:  "If  an  evil  is  specially  experi- 
enced in  a  particular  branch  of  business, 
the  constitution  embodies  no  prohibition 
of  laws  confined  to  the  evil,  or  doctrin- 
aire requirement  that  they  should  be 
couched  in  all  embracing  terms."   Lindsley 


324 


Vol.  I\'. 


CONSTITUTIONAL  LAW. 


373 


b  1/2.  Distinctions  Based  upon  Sex. — The  two  sexes  differ  in  structure  of 
body,  in  the  functions  to  be  performed  by  each,  in  the  amount  of  physical 
strength,  in  the  capacity  for  long-continued  labor,  particularly  when  done  stand- 
ing, the  influence  of  vigorous  health  upon  the  future  well-being  of  the  race,  the 
self-reliance  which  enables  one  to  asse,rt  full  rights,  and  in  the  capacity  to  main- 
tain the  struggle  for  subsistence.  This  difference  justifies  a  difference  in  legis- 
lation, and  upholds  that  which  is  designed  to  compensate  for  some  of  the  burdens 
which  rest  upon  woman. ^^a  jf  ^  g^^^-g  ^^^^  \^  advisable  to  put  a  lighter  burden 
upon  women  than  upon  men  with  regard  to  an  employment  that  people  commonly 
regard  as  more  appropriate  for  the  former,  the  fourteenth  amendment  does  not 
interfere  by  creating  a  fictitious  equality  where  there  is  a  real  difference.^-" 


V.  Natural  Carbonic  Gas  Co.,  220  U.  S.  61, 
55  L.  Ed.  369,  31  S.  Ct.  337. 

Their  validity  has  been  uniformly  rec- 
ognized save  where  they  have  been  found 
to  be  merely  arbitrary  mandates,  or  to 
discriminate  invidiously  between  differ- 
ent persons  in  substantially  the  same  sit- 
uation. Lindsley  v.  Natural  Carbonic  Gas 
Co.,  220  U.  S.  61,  55  L.  Ed.  369,  31  S.  Ct. 
337. 

Regulation  of  banks  and  banking. — The 
exemption  of  banks  or  trust  companies 
and  bona  fide  mortgages  from  the  opera- 
tion of  Conn.  Pub.  Acts  1907,  c.  238,  pro- 
hibiting the  exacting  of  more  than  15  per 
cent  interest  on  loans,  or  accepting  a 
note  for  a  greater  amount  than  that  actu- 
ally loaned,  with  intent  to  evade  this  pro- 
vision, does  not  render  such  statute 
repugnant  to  the  equal  protection  of  the 
laws  clause  of  the  federal  constitution, 
but  such  classification  has  a  reasonable 
basis.  Griffith  v.  Connecticut,  218  U.  S. 
563,  54  L.  Ed.  1151,  31  S.  Ct.  132;  Griffith 
V.  Connecticut,  218  U.  S.  572,  54  L.  Ed. 
1155,  31  S.  Ct.  134,  affirming  judgment 
State   V.    Griffith.    74   .\.    1068,   83    Conn.    1. 

Savings  banks  are  not  unconstitution- 
ally discriminated  against  by  making  ap- 
plicable to  them  alone  the  provisions  of 
Laws  Mass.  1907,  c.  340,  that  deposits 
which  have  remained  inactive  and  un- 
claimed for  thirtj^  years,  where  the 
claimant  is  unknown  or  the  depositor  can 
not  be  found,  shall  be  paid  to  the  treasurer 
and  receiver  general,  to  be  held  by  him 
as  trustee  for  the  true  owner  or  his  legal 
representatives.  Provident  Institution  for 
Savings  v.  Malone,  221  U.  S.  660,  55  L. 
Ed.  899,  31  S.  Ct.  661,  affirming  judgm.ent 
Malone  v.  Provident  Institution  for  Sav- 
ings in  Boston.  86  N.  E.  912,  201  Mass.  23. 

No  unconstitutional  discrimination  is 
made  by  exempting  those  private  bankers 
in  whose  business  the  average  amount  of 
each  sum  received  is  not  less  than  $500, 
and  those  who  give  a  bond  in  a  specified 
amount,  from  the  requirement  of  Laws  N. 
Y.  1910,  c.  348,  that  a  license  from  the 
comptroller  be  obtained  by  individuals  or 
partnerships  desiring  to  engage  in  the 
business  of  receiving  deposits  of  money 
for  safe-keeping,  or  for  the  purpose  of 
transmission  to  another,  or  for  any  other 


purpose.  Engel  v.  O'Malley,  219  U.  S.  128, 
55  L.  Ed.  128,  31  S.  Ct.  191,  affirming  de- 
cree  (C.  C.  1910)   182  F.  365. 

Uniformity  under  the  same  conditions, 
embracing  persons  not  subject  to  same 
uniformity  or  degree. — The  federal  su- 
preme court  has  never  so  construed  the 
limitation  imposed  by  the  fourteenth 
amendment  upon  the  power  of  the  state 
to  legislate  with  reference  to  particular 
employments  as  to  render  ineffectual  a 
general  classification  resting  upon  obvi- 
ous principles  of  public  policy,  because 
it  may  happen  that  the  classification  in- 
cludes persons  not  subject  to  a  uniform 
degree  of  danger.  For  example,  legis- 
lation abolishing  the  fellow-servant  doc- 
trine as  to  railway  employees  is  not 
obnoxious  to  the  fourteenth  amendment 
because  it  embraces  within  its  terms  other 
employees  than  those  actually  engaged  in 
the  operation  of  trains,  and  therefore  not 
exposed  to  the  hazards  peculiar  to  the 
operation  of  railways.  Mobile,  etc..  R. 
Co.  V.  Turnipseed,  219  U.  S.  35,  55  L.  Ed. 
78,    31    S.    Ct.    136. 

373-32a.  Distinctions  based  upon  sex — 
As  to  hours  of  labor. — Muller  v.  Oregon, 
208  U.   S.  412,   52   L.   Ed.  551,  28   S.  Ct.  324. 

Rights  under  Const.  U.  S.  Amend.  14 
are  not  infringed  by  the  limitation  of  the 
hours  of  labor  of  women  employed  in 
laundries  to  10  hours  daily,  which  is  made 
by  Laws  Or.  1903,  p.  148,  although  like 
legislation  affecting  male  employees  may 
be  invalid.  Judgment,  State  ;;■.  Muller 
(1906),  85  P.  855,  48  Or.  252,  affirmed. 
Muller  V.  Oregon,  208  U.  S-  412,  52  L.  Ed. 
551,    28    S.    Ct.    324. 

373-32b.  Same — Discrimination  in  favor 
of  females  employed  in  laundries. — Quong 
Wing  V.  Kirkendall,  223  U.  S.  59.  56  L.  Ed. 
350,   32    S.    Ct.    192.      See   post,   L.\BOR. 

E-xempting  steam  laundries  and  women 
engaged  in  the  laundry  business,  where 
not  more  than  two  women  are  employed, 
from  the  license  tax  imposed  by  Mont. 
Rev.  Codes,  §  2776,  upon  the  laundry 
business,  does  not  deny  the  equal  pro- 
tection of  the  laws  to  a  man  operating  a 
hand  laundry.  Quong  Wing  v.  Kirken- 
dall, 223  U.  S.  59,  56  L.  Ed.  350,  32  S.  Ct. 
192. 


325 


373 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


b  1/4.  Fraudulent  and  Voluntary  Conveyances. — Sales  in  Bulk  Acts. — 
Statutes  designed  to  prevent  conveyances  in  fraud  of  the  rights  of  creditors  and 
forbidding  sales  in  bulk  otherwise  than  in  the  regular  course  of  business,  unless 
an  inventory  has  been  first  made  and  notice  of  the  proposed  sale  given  to  cred- 
itors, are  within  the  police  power  of  the  state  and  not  invalid  as  denying  the  equal 
protection  of  the  laws  or  as  a  deprivation  of  liberty  or  property  without  due 
process  of  law."^*" 

b  1/8.  Distinctions  Based  upon  the  Degree  of  Evil. — Legislation  which  reg- 
ulates business  may  recognize  degrees  of  evil  and  make  distinctions  based  thereon 
without  being  arbitrary,  unreasonable,  or  in  conflict  with  the  equal  protection 
provision  of  the  fourteenth  amendment  to  the  constitution  of  the  United 
States.^-*^  But  where  size  is  not  an  index  to  an  admitted  evil,  the  law  can  not 
discriminate  between  the  great  and  small. •"'-'' 


373-32C.  Fraudulent  and  voluntary  con- 
veyances— Sales  in  bulk  acts. — Kidd,  etc., 
Co.  V.  Mussehnan  Grocery  Co.,  217  U.  S. 
461,  54  L.  Ed.  839,  31  S.  Ct.  606;  Lemieux 
V.  Young,  211  U.  S.  489,  53  L.  Ed.  295,  29 
S.  Ct.  174.  See  post,  FRAUDULENT 
AND   VOLUNTARY    CONVEYANCES. 

Conn.  Gen.  Laws,  §§  4868,  4869,  avoid- 
ing, as  against  creditors,  sales  by  retail 
dealers  of  their  entire  stock  at  a  single 
transaction,  and  not  in  the  regular  course 
of  business,  unless  notice  of  intention  to 
make  such  sale  be  recorded  seven  days 
before  its  consummation,  is  a  valid  ex- 
ercise of  police  power  and  does  not  deny 
the  equal  protection  of  the  laws.  Lemieux 
V.  Young,  311  U.  S.  489,  53  L.  Ed.  295,  29 
S.    Ct.   174. 

The  Michigan  sales  in  hulk  act  (Pub. 
Acts  1905,  No.  223),  avoiding,  as  against 
creditors,  sales  in  bulk  otherwise  than  in 
the  regular  course  of  business,  unless  an 
inventory  is  made  at  least  five  days  be- 
fore the  sale,  and  the  purchaser  receives 
a  list  of  the  seller's  creditors,  and  notifies 
them  of  the  proposed  sale  personally,  or 
by  registered  mail,  at  least  five  days  be- 
fore its  consummation,  and  making  a 
purchaser  not  conforming  to  the  statute 
a  receiver  for  the  benefit  of  the  seller's 
creditors,  is  a  valid  exercise  of  the  police 
power,  and  does  not  deny  the  equal  pro- 
tection of  the  laws.  Kidd,  etc.,  Co.  v. 
Musselman  Grocery  Co.,  217  U.  S.  461,  54 
L  Ed.  839,  31  S.  Ct.  606,  affirming  judg- 
ment, Musselman  Grocery  Co.  v.  Kidd, 
Dater  &  Price  Co.  (1908)  115  N.  W.  409, 
151  Mich.  478,  following  Lemieux  v. 
Young,  211  U.  S.  489,  53  L.  Ed.  295,  29  S. 
Ct.    174. 

The  Michigan  sales  in  bulk  act  (Pub. 
Acts  1905,  No.  223),  avoiding  as  against 
creditors  sales  in  bulk  otherwise  than  in 
the  regular  course  of  business,  unless  an 
inventory  is  made  at  least  five  days  be- 
fore the  sale,  and  the  purchaser  receives 
a  list  of  the  seller's  creditors  and  notifies 
them  of  the  proposed  sale  personally,  or 
by  registered  mail,  at  least  five  days  be- 
fore its  consummation  and  making  a 
purchaser  in  conforming  to  the  statute  a 
receiver    for    the    benefit    of    the    seller's 


creditors,  is  a  valid  exercise  of  the  police 
power,  and  does  not  deny  due  process  of 
law.  Kidd,  etc.,  Co.  v.  Musselman  Gro- 
cery Co.,  217  U.  _S.  461,  54  L  Ed.  839,  31 
S.  Ct.  606,  affirming  judgment  Musselman 
Grocery  Co.  v.  Kidd,  Dater  &  Price  Co. 
(1908)    115    N.    W.   409,   151    Mich.    478. 

373-32d.  Distinctions  based  upon  the  de- 
gree of  evil. — Mutual  Loan  Co.  v.  Martell, 
222  U.  S.  225,  56  L  Ed.  175,  32  S.  Ct.  74; 
Engel  V.  O'Malley,  219  U  S.  128,  55  L. 
Ed.  128,  31  S.  Ct.  191;  Heath,  etc.,  Mfg. 
Co.  V.  Worst,  207  U.  S.  338,  356,  52  L  Ed. 
236,  28  S.  Ct.  114;  Ozan  Lumber  Co.  v. 
Union  County  Nat.  Bank,  207  U.  S.  251,  52 
L  Ed.  195,  28  S.  Ct.  89. 

Forbidding  assignments  of  or  orders  for 
wages. — Exempting  national  banks,  and 
banks  under  the  supervision  of  the  bank 
commissioner,  and  certain  loan  companies, 
from  the  provisions  of  Laws  Mass.  1908, 
c.  605,  §§  7,  8,  making  invalid  against  the 
employer  assignments  of,  or  orders  for, 
wages  to  be  earned  in  the  future,  unless 
recorded,  accepted  in  writing  by  the  em- 
ployer, and  accompanied  by  the  written 
consent  of  the  wife  of  the  employee,  does 
not  deny  the  equal  protection  of  the  laws 
to  an  assignee  not  falling  within  one  of 
the  excepted  classes.  Mutual  Loan  Co.  v. 
Martell,  222  U.  S.  225,  56  L.  Ed.  175,  32  S. 
Ct.  74,  affirming  judgment  (1909)  86  N.  E. 
916,  200  Mass.  482. 

But  even  if  some  degree  of  evil  which 
the  statute  was  intended  to  prevent  could 
be  ascribed  to  loans  made  by  the  exempted 
institutions,  their  exceptions  would  not 
make  the  law  unconstitutional.  Legisla- 
tion may  recognize  degrees  of  evil  without 
being  arbitrary,  unreasonable,  or  in  con- 
flict with  the  equal  protection  provision  of 
the  14th  amendment  to  the  constitution  of 
the  United  States.  Mutual  Loan  Co.  v. 
Martell,  222  U.  S.  225,  56  L  Ed.  175,  32  S. 
Ct.  74;  Ozan  Lumber  Co.  v.  Union  County 
Nat.  Bank,  207  U.  S.  251,  52  L.  Ed.  195,  28 
S.  Ct.  89;  Heath,  etc.,  Mfg.  Co.  v.  Worst. 
207  U.  S.  338,  52  L.  Ed.  236,  28  S.  Ct.  114. 

373-32e.  Where  size  not  an  index  to  evil. 
—Engel  V.  O'Malley,  219  U.  S.  128,  55  L 
Ed.  128,  31  S.  Ct.  191. 


336 


Vol.  IV 


coxsriTurioxAL  law. 


374 


d  1/2.  Securing  PayDicut  of  Wages  Promptly  and  in  Money. — See,  generally, 
post,  Police  Power.  x\s  to  statutes  forbidding  assignments  of  and  orders  for 
wages,  see  ante,  "Distinctions  Based  upon  the  Degree  of  Evil,"  VII,  B,  3,  b  1/8. 

f.  Eight  Hour  Lazvs. — See  ante,  "Distinctions  Based  upon  Sex,"  VII,  B,  3, 
b  1/2.  See,  also,  the  titles  Interstate  and  Foreign  Commerce;  Labor;  Po- 
lice Power. 

h.    Regulation  of  Rates. — See  post.  Police  Power. 

i.  Abolishing  the  Doctrine  of  Fellozv  Servants. — The  federal  supreme  court 
has  never  so  construed  the  limitation  imposed  by  the  fourteenth  amendment  upon 
the  power  of  the  state  to  legislate  with  reference  to  particular  employments  as 
to  render  ineffectual  a  general  classification  resting  upon  obvious  principles  of 
public  policy,  because  it  may  happen  that  the  classification  includes  persons  not 
subject  to  a  uniform  degree  of  danger.  The  insistence,  therefore,  that  legisla- 
tion in  respect  of  railway  employees  generally  is  repugnant  to  the  clause  of  the 
constitution  guaranteeing  the  equal  protection  of  the  law,  merely  because  it  is 
not  limited  to  those  engaged  in  the  actual  operations  of  trains,  is  without  merit. ^^^ 
Neither  is  such  legislation  a  denial  of  the  equal  protection  of  the  laws  because 
it  applies  to  corporations  and  not  to  individual  employers. "^'^ 


374-35a.  Abolishing  the  doctrine  of  fel- 
low servants. — ^lobile,  etc.,  R.  Co.  c'. 
Turnipseed.  219  U.  S.  35,  55  L.  Ed.  78,  31 
S.  Ct.  136;  Louisville,  etc.,  R.  Co.  v.  Mel- 
ton, 218  U.  S.  36.  54  L.  Ed.  921,  30  S.  Ct. 
676. 

A  classification  of  railway  employees, 
which  may  be  justified  from  general  con- 
siderations based  upon  the  hazardous 
character  of  the  occupation,  does  not  be- 
come arbitrary  and  a  denial  of  the  equal 
protection  of  the  law  the  moment  it  is 
found  to  embrace  employees  not  exposed 
to  hazards  peculiar  to  railway  operation. 
Mobile,  etc.,  R.  Co.  v.  Turnipseed,  219  U. 
S.  35,  55  L.  Ed.  78,  31  S.  Ct.  136,  following- 
Louisville,  etc.,  R.  Co.  V.  Melton,  218  U.  S. 
36,  54  L.  Ed.  921.  30  S.  Ct.  676.  See  post, 
FELLOW  SERVANTS. 

The  abrogation  of  the  fellow-servant 
rule  as  to  railway  employees,  made  by 
Code  Miss.  1892,  §  3559,  does  not  offend 
against  the  equal  protection  of  the  laws 
clause  of  the  federal  constitution  because 
construed  as  applying  to  the  foreman  of 
a  section  crew  charged  with  keeping  the 
track  in  repair.  Such  employees,  though 
not  directl}'  engaged  in  the  management 
of  trains,  are  nevertheless  within  the  gen- 
eral line  of  hazard  inherent  in  the  railwa}' 
business.  Mobile,  etc..  R.  Co.  z\  Turnip- 
seed, 219  U.  S.  35,  55  L.  Ed.  78,  31  S.  Ct. 
136;  Mobile,  etc.,  R.  Co.  v.  Hicks,  91  Miss. 
273,  46  So.  360,  124  Am.  St.  Rep.  679. 

The  modification  of  the  fellow-servant 
rule  as  to  railway  employees,  made  by  Act 
Ind.  March  4,  1893  (Acts  1893.  c.  130)  §  1. 
does  not  offend  against  the  equal  protec- 
tion of  the  laws  clause  of  the  federal  con- 
stitution because  construed  as  applying  to 
all  employees  doing  work  essential  to  en- 
able the  carrying  on  of  railway  operations, 
and  not  as  limited  to  those  engaged  in  or 
about  the  movement  of  trains,  but  such 
general  classification  of  railway  employees 


is  a  proper  exercise  of  the  police  power. 
Louisville,  etc.,  R.  Co.  v.  Melton,  218  U.  S. 
36,  54  L.  Ed.  921,  30  S.  Ct.  676,  affirming 
judgment  (1907)  105  S.  W.  366,  127  Ky. 
276. 

It  is  beyond  doubt  foreclosed  that  the 
Indian  Statute  Act  1893,  c.  130,  §  1  docs 
not  offend  against  the  equal  protection 
clause  of  the  14th  amendment,  because  it 
subjects  railroad  employees  to  a  different 
rule  as  to  the  doctrine  of  fellow  servant 
from  that  which  prevails  as  to  other  em- 
ployments in  that  state.  Louisville,  etc.. 
R.  Co.  V.  Melton,  218  U.  S.  36,  54  L.  Ed. 
921,  30  S.  Ct.  676;  Tullis  v.  Lake  Erie,  etc., 
R.  Co.,  175  U.  S.  348,  44  L.  Ed.  192,  20  S. 
Ct.  136;  Pittsburg,  etc.,  R.  Co.  v.  Light- 
heiser,  212  U.  S.  560,  53  L.  Ed.  652,  29  S. 
Ct.  688. 

374-35b.  Statute  applicable  only  to  cor- 
porate employers. — Aluminum  Co.  v.  Ram- 
sey, 222  U.  S.  251,  56  L.  Ed.  185.  32  S. 
Ct.  76. 

Abolishing  the  fellow-servant  rule  as  to 
corporations  operating  railroads  within 
the  state,  as  is  done  by  Act  Ark.  March  8, 
1907,  p.  162,  does  not  deny  such  a  corpora- 
tion the  equal  protection  of  the  laws  be- 
cause the  statute  does  not  applj'  to  individ- 
ual employers.  Aluminum  Co.  v.  Ramsey, 
222  IT.  S.  251,  56  L.  Ed.  185,  32  S.  Ct.  76, 
affirming  judgment  (1909)  117  S.  W.  568, 
89  Ark.  522. 

The  distinction,  among  others,  which 
the  statute  makes  is  between  railroads 
operating  in  the  state  and  individuals,  and 
such  distinction  has  been  maintained  by 
the  federal  supreme  court  as  not  offending 
the  constitution  of  the  United  States. 
Aluminum  Co.  v.  Ramsey,  222  U.  S.  251. 
56  L.  Ed.  185,  32  S.  Ct.  76;  Tullis  7.  Lake 
Erie,  etc.,  R.  Co..  175  U.  S.  348.  44  L.  Ed. 
192,  20  S.  Ct.  136;  Minnesota  Iron  Co.  v. 
Kline,  199  U.  S.  593,  50  L.  Ed.  322,  26  S.  Ct. 
159.     See    also.  The    Employers'    Liability 


327 


374-376 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


i  1/2.  Abolishing  the  Doctrine  of  Comparative  and  Contributory  Negli- 
gence.— The  police  power  of  the  state  justifies  a  statutory  modification  of  the 
doctrine  of  contributory  negligence  by  providing  that  such  negligence  on  the 
part  of  an  injured  employee  shall  not  be  a  bar  to  a  recovery  against  the  employer, 
where  the  employee's  negligence  was  slight,  and  that  of  the  employer  gross  in 
comparison,  but  that  damages  shall  be  diminished  in  proportion  to  the  amount 
of  negligence  attributable  to  the  injured  employee. ^^"^ 

j.  Particular  Business,  Occupation  or  Profession. — See,  also,  post,  Police 
Power. 

(2)  Laundries. — Distinctions  Based  upon  Sex. — See  ante,  ''Distinctions 
Based  upon  Sex,"  VII,  B,  3,  b  1/2. 

(4)  Imitation  and  Adulterated  Food  Stuffs. — See  post,  Food  and  Drugs; 
Interstate:  and  Foreign  Commerce;   Police  Power. 

(4  1/2)  Other  Imitations  and  Adulterations. — A  statute  which  is  directed 
against  the  adulteration  of  articles  and  designed  to  secure  a  true  representation 
of  their  character  or  composition,  and  which  prohibits  certain  ingredients  from 
being  used  therein,  as  in  mixed  paints,  for  example,  without  a  specific  declara- 
tion that  they  are  used,  is  irremediable  by  the  courts  even  though  it  imposes  a 
burden  on  that  class  of  manufacturers  and  sellers  of  paints. ^'^'^ 


Cases,  207  U.  S.  463,  504,  52  L.  Ed.  297,  28 
S.  Ct.  141;  and  El  Paso,  etc.,  R.  Co.  v. 
Gutierrez,  215  U.  S.  87,  54  L.  Ed.  106,  30  S. 
Ct.  21. 

374-3 5c.  Abolishing  the  doctrine  of  com- 
parative and  contributory  negligence. — 
Missouri  Pac.  R.  Co.  v.  Castle,  224  U.  S. 
541,  56  L.  Ed.  875,  32  S.  Ct.  606.  See  post, 
NEGLIGENCE. 

As  applied  to  railway  companies. — Rail- 
way companies  are  not  denied  the  equal 
protection  of  the  laws,  nor  are  their  priv- 
i'leges  and  immunities  as  citizens  of  the 
United  States  abridged,  by  Neb.  Conip. 
Stat.  chap.  21,  §  4,  under  which  the  con- 
tributory negligence  of  a  railway  employee 
injured  while  engaged  in  train  service  will 
not  bar  a  recovery  from  the  company, 
where  his  negligence  was  slight,  and  that 
of  the  company  gross  in  comparison,  the 
damages  being  diminished  in  proportion 
to  the  amount  of  negligence  attributable 
to  the  injured  employee.  Missouri  Pac. 
R.  Co.  V.  Castle,  224  U.  S.  541,  56  L.  Ed. 
875,  32  S.  Ct.  606. 

The  court  has  repeatedly  upheld  the 
power  of  a  state  to  impose  upon  a  railway 
company  liability  to  an  employee  engaged 
in  train  service  for  an  injury  inflicted 
through  the  negligence  of  another  em- 
ployee in  the  same  service.  Missouri  Pac. 
R.  Co.  V.  Castle,  224  U.  S.  541,  56  L-  Ed. 
875,  32  S.  Ct.  606;  Missouri  Pac.  R.  Co.  v. 
Mackey,  127  U.  S.  205,  32  L.  Ed.  107,  8  S. 
Ct.  1161;  Minneapolis,  etc.,  R.  Co.  v.  Her- 
rick,  127  U.  S.  210,  32  L.  Ed.  109,  8  S.  Ct. 
1176;  Tullis  V.  Lake  Erie,  etc.,  R.  Co.,  175 
U.  S.  348,  44  L.  Ed.  192.  20  S.  Ct.  136;  Chi- 
cago, etc.,  R.  Co.  V.  Pontius,  157  U.  S.  209, 
39  L.  Ed.  675,  15  S.  Ct.  585;  and  Second 
Employers'  Liability  Cases,  223  U.  S.  1.  56 
L.  Ed.  327,  32  S.  Ct.  169. 

The  same  reasons  which  justified  a  de- 
parture from  the  common-law  rule  in  re- 


spect to  the  negligence  of  a  fellow  servant 
also  justify  a  similar  departure  in  regard 
to  the  effect  of  contributory  negligence. 
Missouri  Pac.  R.  Co.  v.  Castle,  224  U.  S. 
54],  56  L.  Ed.  875,  32  S.  Ct.  606. 

376-39a.  Other  imitations  and  adultera- 
tions.— Heath,  etc.,  Mfg.  Co.  v.  Worst.  207 
U.  S.  338.  52  L.  Ed.  236,  28  S.  Ct.  114. 

Same — Paints. — When  a  legislature  en- 
acts a  statute  to  remedy  evils  in  the  adul- 
teration of  paints,  by  prohibiting  the  use 
of  certain  ingredients,  without  a  specific 
declaration  on  the  label  that  they  have 
been  used,  it  would  be  limiting  the  power 
of  the  state,  too  much,  to  say  that  the 
judgment  of  the  legislature,  exercised 
under  such  circumstances,  must  be  con- 
demned as  denying  the  equal  protection  of 
the  laws,  assured  by  the  constitution  of 
the  United  States  in  the  14th  amendment. 
Heath,  etc.,  Mfg.  Co.  v.  Worst,  207  U.  S. 
338,  52  L.   Ed.  236,  28  S.  Ct.  114. 

Manufacturers  and  sellers  of  mixed 
paints  containing  other  ingredients  than 
pure  linseed  oil,  pure  carbonate  of  lead, 
oxid  of  zinc,  turpentine,  Japan  dryer,  and 
pure  colors,  are  not  deprived  of  their  lib- 
erty without  due  process  of  law  by  a  state 
statute  which  makes  such  manufacture 
and  sale  a  misdemeanor  unless  the  label 
shows  the  constituent  ingredients  and 
quantity  or  amount  of  each.  Heath,  etc., 
Mfg.  Co.  V.  Worst,  207  U.  S.  338,  52  L.  Ed. 
236,  28  S.  Ct.  114. 

The  equal  protection  of  the  laws  is  not 
denied  to  manufacturers  and  sellers  of 
mixed  paints  containing  other  ingredients 
than  pure  linseed  oil,  pure  carbonate  of 
lead,  oxid  of  zinc,  turpentine,  Japan  dryer, 
and  pure  colors,  by  a  state  statute  which 
makes  the  manufacture  and  sale  of  such 
paints  a  misdemeanor  unless  the  label 
shows  the  constituent  ingredients  and  the 
quantity  or  amount  of  each,  because  the 


328 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


380-383 


(5)  Practice  of  Medicine. — See  post,  Police  Power. 

(6)  Manufacture  and  Sale  of  Intoxicating  Liquors. — See  post,  Intoxicating 
Liquors. 

(7)  Insurance. — See  post,  Insurance;    Poeice:  Power. 
(9)    Dealing  in  Futures. — See  post.  Police  Power. 
(14)    Railroads. — See  note  54. 

(14  1/2)    Street  Railroads. — See  post.  Police  Power;    Street  Railways. 

(16)  Banks  and  Banking. — See  ante.  Banks  and  Banking,  p.  184;  post, 
Police  Power.  And  see,  also,  ante,  "Right  to  Pursue  Lawful  Occupation ; 
Acquire  and  Dispose  of  Property,  without  Discrimination,"  Vll,  B,  3,  b;  "Dis- 
tinctions Based  upon  the  Degree  of  Evil,"  VII,  B,  3,  b  1/8. 

(17)  Sale  of  Patented  Articles. — A  statute  requiring  negotiable  instruments 
given  in  payment  for  patented  articles  to  show  on  their  face  for  what  they  were 
given  is  not  obnoxious  to  the  equal  protection  clause  of  the  federal  constitution 
because  it  exempts  from  its  operation  merchants  and  dealers  who  sell  such  ar- 
ticles in  the  usual  course  of  their  business.^^'* 

(18)  Mines  and  Mining;  Mineral  Waters,  Oil,  Gas,  etc. — See  post.  Inter- 
state AND  Foreign  Commerce;    Mines  and  Minerals;    Police  Power. 

(19)  Advertising  on  Streets,  in  Public  Conveyances,  etc. — See  post.  Police 
Power. 

(20)  Druniming  and  Soliciting  on  Trains,  about  Raihvay  Stations,  etc. — See 
post,  Police  Power. 

(21)  Telegraphs  and  Telephones. — See  post.  Police  Power;  Telegraphs 
AND  Telephones.  As  to  statutes  or  ordinances  vesting  power  and  discretion 
in  some  single  officer,  board,  or  tribunal,  see  ante,  "Arbitrary  and  Oppressive 
Administration  of  Statutes,"  VII,  B,  2,  i,  (4). 


manufacture  and  sale  of  mixed  paints  con- 
taining only  the  ingredients  specified  in 
the  statute,  and,  possibly,  of  all  paste 
paints,  are  free  from  such  consequence  or 
condition.  Heath,  etc.,  Mfg.  Co.  v.  Worst. 
.207  U.  S.  338,  53  L.  Ed.  236,  28  S.  Ct.  114. 
380-54.  Forbidding  railway  company  to 
plead  acceptance  of  benefits  from  relief 
fund  as  a  defense  to  action  for  personal 
injuries. — An  unconstitutional  discrimina- 
tion is  not  made  by  amending  Code  Iowa, 
§  2071,  which  defined  the  liability  of  rail- 
way corporations  for  injuries  resulting 
from  negligence  or  mismanagement  in  the 
use  and  operation  of  their  railways,  so  that 
a  railway  company,  when  sued  on  such  lia- 
bility, may  not  raise  the  defense  that  a 
recovery  is  barred  by  the  acceptance  of 
benefits  under  a  contract  of  membership 
in  its  relief  department,  although  this  pro- 
vision of  the  amendatory  act  applies  only 
to  those  employees  who  were  einbraced 
within  the  provisions  of  the  original  stat- 
ute, and  to  the  enforcement  of  the  particu- 
lar liabilities  which  that  statute  defined, 
and  the  benefits  of  such  statute  were  con- 
fined to  those  engaged  in  the  hazardous 
business  of  operating  railroads.  Chicago, 
etc.,  R.  Co.  V.  McGuire,  219  U.  S.  549,  55 
L.  Ed.  328,  31  S.  Ct.  259,  affirming  judg- 
ment McGuire  ?■.  Chicago,  B.  &  Q.  R.  Co; 
(1908),  IIG  N.  W.  801,  138  Iowa,  604;  Phil- 
adelphia, etc.,  R.  Co.  V.  vSchubert,  224  U. 
S.  603,  56  L.  Ed.  911,  32  S.  Ct.  589. 


Modifying  or  abolishing  doctrines  as  to 
fellow  servants,  contributory  negligence, 
and  comparative  negligence. — See  .  ante, 
"Abolishing  the  Doctrine  of  Fellow  Serv- 
ants," VII,  B,  3,  i;  "Abolishing  the  Doc- 
trine of  Comparative  and  Contributory 
Negligence,"  VII,  B,  3,  ii/<. 

Excluding  same  roads  from  provision 
respecting  number  of  brakemen. — The  ex- 
clusion of  railroads  less  than  50  miles  in 
length  from  the  operation  of  Ark.  Laws, 
1907,  No.  116,  prescribing  a  minimum  of 
three  brakemen  for  freight  trains  of  more 
than  twenty-five  cars,  does  not  deny  to 
other  railroads  the  equal  protection  of  the 
laws.  Chicago,  etc.,  R.  Co.  v.  Arkansas, 
219  U.  S.  453,  55   L.   Ed.  290,  31  S.   Ct.  275. 

383-59a.  Sale  of  patented  articles. — Ozan 
Lumber  Co.  v.  Union  County  Nat.  Bank, 
207  U.  S.  251,  52  L.  Ed.  195,  28  S.  Ct.  89. 

The  exemption  of  merchants  and  dealers 
who  sell  patented  things  in  the  usual 
course  of  business  from  the  operation  of 
Kirby's  Ark.  Dig.,  §§  513-516,  requiring  a 
negotiable  instrument  taken  in  payment 
for  a  patented  article  to  show  on  its  face 
for  what  it  was  given  or  be  void,  does  not 
render  such  statute  repugnant  to  Const. 
U.  S.  Amend.  14,  as  denying  the  equal  pro- 
tection of  the  laws.  Judgment  145  F.  344, 
76  C.  C.  A.  218.  reversed.  Ozan  Lumber 
Co.  V.  Union  Countv  Nat.  Bank,  207  U.  S. 
251,  52  L.  Ed.  195,  28  S.  Ct.  89. 


329 


383-385 


CONSTITUTIONAL  LAW. 


Vol.  IV 


4.   As  Requiring  Equal  and  Impartial  Justice; — a.  Generally  in  Ciiil  Pro- 
ceedings—  (1)    Generally. — See  notes  60,  61. 

(4j    Change  of  Venue;  Transfer  of  Cause,  etc. — See  note  69. 


383-60.  As  requiring  equal  and  impartial 
justice — Right  to  resort  to  the  courts — 
Imposing  pencilties  so  severe  as  to  deter 
exercise  of  right. — A  statute  providing  for 
the  establishment  of  rates  for  railroad 
transportation  without  giving  the  corpora- 
tion an  opportunity  to  be  heard,  which 
fixes  penalties  for  disobedience  of  its  pro- 
visions by  fines  so  enormous  and  impris- 
onment so  severe  as  to  intimidate  the  cor- 
porations and  their  officers  from  resorting 
to  the  courts  to  test  the  validity  of  the 
rates,  is  unconstitutional  on  its  face,  and 
without  reference  to  the  sufficiency  of  the 
rates,  as  depriving  the  corporations  of  the 
equal  protection  of  the  laws.  Ex  parte 
Young,  209  U.  S.  123,  52  L.  Ed.  714,  28  S. 
Ct.  441. 

Whether  or  not  a  railroad  company  is 
deprived  of  the  equal  protection  of  the 
laws,  and  its  property  rendered  liable  to 
be  taken  without  due  process  of  law,  by  a 
state  statute  providing  for  the  establish- 
ment of  rates  of  transportation,  because 
the  penalties  fixed  for  violation  of  the 
statute  are  so  enormous  as  to  require 
obedience  to  the  law  rather  than  risk  the 
penalties  in  testing  it,  although  such  obe- 
dience might,  in  the  end,  result  in  confis- 
cation of  the  railroad  property,  is  a  fed- 
eral question,  within  the  jurisdiction  of 
the  circuit  court  of  the  United  States.  Ex 
parte  Young,  209  U.  S.  123,  52  L.  Ed.  714, 
28  S.  Ct.  441. 

Section  4  of  the  North  Carolina  Act  of 
1907  (Pub.  Laws  1907,  p.  250,  c.  216),  pre- 
scribing the  maximum  rates  which  may  be 
charged  by  railroad  companies  for  the  car- 
riage of  passengers  within  the  state,  which 
provides  that  any  railroad  company  violat- 
ing any  provision  of  the  act  shall  be  liable 
to  a  penalty  of  $500  for  each  violation 
payable  to  the  person  aggrieved,  and  any 
agent  of  such  company  violating  the  act 
shall  be  guilty  of  a  misdemeanor  and  sub- 
ject to  fine  or  imprisonment  or  both,  is 
unconstitutional  as  a  denial  to  the  equal 
protection  of  the  laws  by  subjecting  them 
to  excessive  and  ruinous  penalties  if  they 
exercise  their  right  to  contest  the  valid- 
ity of  the  law  in  the  courts.  Ex  parte 
Wood,  155  Fed.  190,  affirmed.  Hunter  z'. 
Wood,  209  U.  S.  205,  52  L.  Ed.  747,  28  S. 
Ct.  372. 

383-61.  State  not  to  deny  equal  and  im- 
partial justice. — No  state  can  deprive  par- 
ticular persons  or  classes  of  persons  of 
equal  and  impartial  justice  under  the  law. 
Ughbanks  v.  Armstrong,  208  U.  S.  481,  52 
L.  Ed.  582,  28  S.  Ct.  372,  citing  In  re 
Kemmler,  136  U.  S.  436,  448,  34  L.  Ed.  519, 
10  S.  Ct.  930;  Caldwell  7j.  Texas,  137  U.  S. 
692,  34  L.  Ed.  816,  11  S.  Ct.  224. 


385-69.  Right  to  remove  cause  to  fed- 
eral courts. — Under  the  Missouri  Act  of 
March  7,  1907,  a  domestic  railway  com- 
pany might  bring  an  action  in  the  federal 
court,  or,  in  a  proper  case,  remove  one 
thereto,  without  being  subject  to  forfei- 
ture of  its  right  to  do  business,  or  the  im- 
position of  the  penalties  provided  for  in 
the  act;  but  as  to  foreign  railway  com- 
panies the  statute  provided  that  in  case 
they  should  bring  a  suit  in  the'  federal 
courts,  or  remove  it  from  the  state  courts 
to  the  federal  courts,  their  right  to  do  busi- 
ness in  the  state  should  be  forfeited  and 
that  they  should  be  subject  to  the  penal- 
ties prescribed  in  the  act.  Held,  that  as 
to  a  foreign  corporation  which  had  come 
within  the  state  and  complied  with  its 
laws,  and  which  had  acquired,  under  the 
sanction  of  the  state,  a  large  amount  of 
property  within  its  borders,  and  which  had 
thus  become  a  person  within  the  state, 
within  the  meaning  of  the  constitution 
and  entitled  to  its  protection,  the  statute 
was  unconstitutional  as  denying  the  equal 
protection  of  the  laws.  Herndon  v.  Chi- 
cago, etc.,  R.  Co.,  218  U.  S.  135,  54  L.  Ed. 
9^0,  30  S.  Ct.  633;  Roach  v.  Atchinson.  etc., 
R.  Co.,  218  U.  S.  159,  54  L.  Ed.  978,  30  S. 
Ct.  639.  See,  also,  Western  Union  Tel. 
Co.  V.  Coleman,  216  U.  S.  1,  54  L.  Ed.  355, 
30  S.  Ct.  190;  Pullman  Co.  v.  Coleman,  216 
U.  S.  56,  54  L.  Ed.  378,  30  S.  Ct.  232;  Lud- 
wig  V.  Western  Union  Tel.  Co.,  216  U.  S. 
146,  54  L.  Ed.  423,  30  S.  Ct.  280;  Southern 
R.  Co.  V.  Greene,  216  U.  S.  400,  54  L.  Ed. 
536,  30  S.  Ct.  287.  See  post,  REMOVAL 
OF  CAUSES. 

Speaking  with  reference  to  this  act,  the 
court  says:  "As  to  the  validity  of  the  Act 
of  March  13,  1907,  forfeiting  the  right  of 
the  companj^  to  do  business  in  the  state  of 
Missouri,  and  subjecting  it  to  penalties  in 
case  it  should  bring  a  suit  in  the  federal 
courts,  or  remove  one  from  the  state 
courts  to  the  federal  courts,  but  little  need 
be  said.  This  is  so  because  of  the  cases 
decided  at  this  term,  involving  conten- 
tions kindred  to  the  one  made  in  this  case. 
See  Western  Union  Tel.  Co.  v.  Coleman, 
216  U.  S.  1,  54  L.  Ed.  355,  30  S.  Ct.  190; 
Pullman  Co.  v.  Coleman,  216  U.  S.  56,  54 
L.  Ed.  378,  30  S.  Ct.  232;  Ludwig  v.  West- 
ern Union  Tel.  Co.,  216  U.  S.  146.  54  L- 
Ed.  423,  30  S.  Ct.  280;  Southern  R.  Co.  v. 
Greene,  216  U.  S.  400,  54  L.  Ed.  536,  30  S. 
Ct.  287.  Applying  the  principles  an- 
nounced in  those  cases,  it  is  evident  that 
the  act  in  controversy  can  not  stand,  in 
view  of  the  provisions  of  the  constitution 
of  the  United  States.  Moreover,  this  is 
not  a  case  where  the  state  has  undertaken 
to  prevent  the  coming  of  the  corporation 


330 


\'ol.    I\' 


COXSTITUTIOKAL  LAW. 


385 


(4  1/2)    Right  of  Action  or  Defense.— See,  generally,  post,  "Laws  Afifecting 
Rights  of  Action  and  Defenses,"  VIII,  C,  11,  et  seq.     See  note  69b. 
(?)    Statutes  Respecting  the  Rules  of  Evidence. — See  note  70. 


into  its  borders  for  the  purpose  of  carry- 
ing on  business.  The  corporation  was 
within  the  state,  complying  with  its  laws, 
and  had  acquired,  under  the  sanction  of  the 
state,  a  large  amount  of  property  within 
its  borders,  and  thus  had  become  a  person 
within  the  state,  within  tfie  meaning  of 
the  constitution,  and  entitled  to  its  protec- 
tion. Under  the  statute  in  controversy,  a 
domestic  railroad  compan}''  might  bring 
an  action  in  the  federal  court,  or,  in  a 
proper  case,  remove  one  thereto,  without 
being  subject  to  the  forfeiture  of  its  right 
to  do  business,  or  to  the  imposition  of  pen- 
alties provided  for  in  the  act.  In  all  the 
cases  in  this  court,  discussing  the  right  of 
the  states  to  exclude  foreign  corporations, 
and  to  prevent  them  from  removing  cases 
to  the  federal  courts,  it  has  been  conceded 
that  while  the  right  to  do  local  business 
within  the  state  may  have  been  derived 
from  the  federal  constitution,  the  right  to 
resort  to  the  federal  courts  is  a  creation 
of  the  constitution  of  the  United  States 
and  the  statutes  passed  in  pursuance 
thereof.  It  is  enough  now  to  say  that 
within  the  principles  decided  at  this  term, 
in  the  cases  cited  above,  the  Act  of  March 
13,  1907,  as  applied  to  the  complainant  rail- 
road company,  in  view  of  the  admitted 
facts  set  out  in  the  bill  in  this  case,  is  un- 
constitutional and  void."'  Herndon  v.  Chi- 
cago, etc.,  R.  Co.,  218  U.  S.  135,  54  L.  Ed. 
970.  30  S.  Ct.  633. 

385-69b.  Right  of  action  or  defense.— A 
foreign  life  insurance  company  doing  busi- 
ness in  Missouri  is  not  denied  the  equal 
protection  of  the  laws  by  Rev.  St.  Mo..  § 
7890,  which  cuts  ofif  any  defense  by  a  life 
insurance  company  domestic  or  foreign, 
based  upon  the  false  and  fraudulent  state- 
ments in  the  application,  unless  the  mat- 
ter misrepresented,  in  the  judgment  of  the 
jury,  actually  contributed  to  the  death  of 
the  insured.  Northwestern  Nat.  Life  Ins. 
Co.  V.  Riggs.  203  U.  S.  243.  51  L.  Ed.  168. 
27  S.  Ct.  126.  See,  also.  post.  DUE  PROC- 
ESS OF  LAW. 

385-70.  Rules  of  evidence — Statutory 
presumptions. — See  post,  "Laws  Affectins; 
the  Rules  of  Evidence,"  VIII,  C,  13,  f. 

Production  of  books,  papers,  records, 
etc. — Distinction  between  corporations  and 
individuals — Books  and  papers,  outside  the 
state  and  those  within. — Although  it  be 
conceded  that  the  provisions  of  a  statute 
regulating  corporations  doing  business 
within  its  borders  can  not,  consistently 
with  constitutional  limitations,  be  applied 
to  individuals,  such  concession  would  not 
cause  the  act  to  amount  to  a  denial  of  the 
equal  protection  of  the  laws.  The  differ- 
ence   between    the     extent    of    the    power 


which  the  state  may  exert  over  the  doing 
of  business  within  the  state  by  an  individ- 
ual and  that  which  it  can  exercise  as  to 
corporations  furnishes  a  distinction  au- 
thorizing a  classification  between  the  two. 
Hammond  Packing  Co.  v.  Arkansas,  212  U. 
S.  322,  343,  53  L.  Ed.  530,  29  S.  Ct.  370. 

The  fact  that  the  remedy  given  by  an 
act  for  the  production  of  books  and  papers 
and  the  examination  of  witnesses  is  con- 
fined to  corporations  and  joint  stock  asso- 
ciations, and  does  not  extend  to  individu- 
als, furnishes  no  ground  for  the  proposi- 
tion that  a  denial  of  the  equal  protection 
of  the  laws  thereby  resulted.  The  wider 
scope  of  the  power  which  the  state  pos- 
sesses over  corporations  and  joint  stock  as- 
sociations in  and  of  itself  affords  a  ground 
for  the  classification  adopted.  Hammond 
Packing  Co.  v.  Arkansas,  212  U.  S.  322,  349, 
53  L.  Ed.  530,  29  S.  Ct.  370. 

The  remedy  given  by  the  Arkansas  An- 
titrust Act  (Act  Ark.  Jan.  23,  1905  [Acts 
1905,  p.  8]  §  8),  to  secure  the  attendance 
of  witnesses  before  a  commission,  and  the 
production  of  books  and  papers  in  a  pro- 
ceeding under  that  act,  does  not  deny  the 
equal  protection  of  the  laws  because  it  ap- 
plies only  to  books  and  papers  outside  the 
state,  or  because,  properly  construed,  it 
rna^r  be  conhned  to  corporations  and  joint- 
stock  associations,  and  not  extended  to  in- 
dividuals. Judgment  (1907),  100  S.  W.  407, 
81  Ark.  519,  affirmed.  Hammond  Packing 
Co.  V.  Arkansas,  212  U.  S.  322.  53  L.  Ed. 
530,  29  S.  Ct.  370. 

The  contention  that  because  §  8  applies 
only  to  books  and  papers  outside  of  the 
state,  therefore  it  denies  the  equal  protec- 
tion of  the  laws  is  not  open,  since  it  has 
been  conclusively  settled  that,  without  de- 
nying the  equal  protection  of  the  laws, 
relations  may  be  based  upon  the  fact  that 
persons  or  property  dealt  with  are  not 
within  the  territorial  jurisdiction  of  the 
regulating  authority.  Hammond  Packing 
Co.  V.  Arkansas.  212  U.  S.  322,  349,  53  L. 
Ed.  530.  29  S.  Ct.  370;  Central  Loan,  etc., 
Co.  V.  Campbell  Comm.  Co.,  173  U.  S.  84, 
43  L.  Ed.  623. 

Corporations  are  not  denied  the  equal 
protection  of  the  laws  secured  by  Const. 
U.  S.  Amend.  14,  by  the  provisions  of  Act 
Vt.  Oct.  9,  1906,  p.  79,  Xo.  75,  under  which 
corporations  alone  may  be  compelled  to 
produce  before  a  court  or  grand  jury  ma- 
terial books  and  papers  in  their  custody 
or  control.  Judgment,  In  re  Consolidated 
Rendering  Co.  (Vt.  1907)  66  .A..  790.  af- 
firmed. Consolidated  Rendering  Co.  v. 
Vermont.  207  U.  S.  541,  52  L.  Ed.  327,  28 
S.  Ct.  178. 


331 


386-387 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


(7)  Laws  Respecting  Damages  and  Penalties. — See  note  72. 

(8)  Statutes  Awarding  Attorney's  Fees  against  Certain  Classes  of  Defend- 
ants.— See  note  73. 


386-72.  Laws  respecting  damages  and 
penalties — Distinctions  between  residents 
and  nonresidents.— The  distinction  be- 
tween resident  and  nonresident  owners  of 
abutting  property  in  Act  May  19,  1896,  29 
Stat.  125,  c.  20i3,  creating  a  drainage  system 
for  the  District  of  Columbia,  in  that  the 
coercion  of  the  law  as  to  making  connec- 
tions with  a  sewer  is  by  criminal  punish- 
ment in  the  case  of  residents,  whereas, 
against  nonresident  owners,  the  district 
does  the  work  in  case  of  their  neglect,  and 
assesses  the  cost  against  the  property  as 
a  tax.  does  not  invalidate  the  statute  for 
discrimination,  even  if  congress  can  not 
enact  discriminating  legislation.  District 
of  Columbia  v.  Brooks,  214  U.  S.  138,  53 
L.  Ed.  941,  29  S.  Ct.  560,  reversed  29  App. 
D.  C.  563. 

The  statute  under  consideration  in  the 
case  at  bar  enjoins  a  duty  on  both  resident 
and  nonresident  lot  ov/ners,  a  duty  neces- 
sary to  be  followed  to  preserve  the  health 
of  the  city.  There  is  a  difference  only  in 
the  manner  of  enforcing  it,  a  difTerence 
arising  from  the  different  situation  of  the 
lot  owners,  and  therefore  competent  for 
congress  to  regard  in  its  legislation.  In 
other  words,  under  the  circumstances  pre- 
sented by  this  record,  the  distinction  be- 
tween residents  and  nonresidents  is  a 
proper  basis  for  classification.  It  might 
not  be  under  other  circumstances.  Dis- 
trict of  Columbia  v.  Brooke,  214  U.  S.  138. 
53  L.  Ed.  941,  29  S.  Ct.  560;  Blake  v.  Mc- 
Clung,  172  U.  S.  239,  43  L.  Ed.  432,  19  S. 
Ct.  165;  S.  C,  176  U.  S.  59,  44  L.  Ed.  371, 
20  S.  Ct.  307;  Sullv  v.  American  Nat.  Bank, 
178  U.S.  289,  44  t.  Ed.  1072,  20  S.  Ct.  93."). 

Distinctions  between  individuals  and 
corporations. — The  possible  invalidity  as 
to  individuals  of  the  provisions  of  Act  Ark. 
Jan.  23,  1905  (Acts  1905,  p.  2),  §  1,  penaliz- 
ing the  doing  of  business  within  the  state 
by  members  of  a  trust  or  combination  to 
control  prices,  does  not  render  such  pro- 
visions invalid  as  to  corporations,  as  deny- 
ing the  equal  protection  of  the  laws.  Judg- 
ment 100  S.  W.  407,  81  Ark.  519,  affirmed. 
Hammond  Packing  Co.  v.  Arkansas,  212 
U.   S.  322,  53  L.   Ed.  530,  29  S.   Ct.  370. 

Singling  out  particular  class  of  corpora- 
tions or  individuals. — It  may  be  stated  as 
a  general  rule  that  an  act  which  puts  in 
one  class  all  engaged  in  business  of  a  spe- 
cial and  public  character,  requires  of  them 
the  performance  of  a  duty  which  they  can 
do  better  and  more  quickly  than  others, 
and  imposes  a  not  exorbitant  penalty  for 
a  failure  to  perform  that  duty  within  a 
reasonable  time,  can  not  be  adjudged  un- 
constitutional as  a  purely  arbitrary  classi- 
fication.     Seaboard    Air    Eine  Railway    v. 


Seegers,  207  U.  S.  73,  52  L.  Ed.  108,  28  S. 
Ct.  28. 

Common  carriers  are  not  denied  the 
equal  protection  guaranteed  by  U.  S. 
Const.,  fourteenth  amendment,  by  the 
provisions  of  S.  C.  Act  Eebruary  23,  1903, 
p.  81,  §  2,  requiring  them  to  adjust  and 
pay  every  claim  for  loss  or  damage  to 
an  intrastate  shipment  within  forty  days 
after  the  filing  of  a  claim,  under  penalty 
of  $50  for  each  failure  or  refusal,  where 
there  can  be  no  award  of  a  penalty  under 
the  statute  unless  there  is  a  recovery  of 
the  full  amount  claimed.  Seaboard  Air 
Line  Railway  v.  Seegers,  207  U.  S.  73,  52 
L.   Ed.   108,  28   S.   Ct.  28. 

It  is  not  an  act  imposing  a  penalty  for 
the  nonpayment  of  debts.  Seaboard  Air 
Line  Railway  v.  Seegers,  207  U.  S.  73,  52 
L.   Ed.   108,  28   S.   Ct.  28. 

The  purpose  of  this  legislation  is  not 
primarily  to  enforce  the  collection  of 
debts,  but  to  compel  the  performance  of 
duties  which  the  carrier  assumes  when  it 
enters  upon  the  discharge  of  its  public 
functions,  and  while  there  are  limits  be-' 
yond  which  penalties  may  not  go  even 
in  cases  where  classification  is  legitimate, 
in  this  case  the  amount  of  penalty  im- 
posed is  not  so  great,  or  the  length  of 
time  within  which  the  adjustment  and 
payment  are  to  be  made  so  short,  as  to 
render  the  act  imposing  the  penalty  and 
fixing  the  time  beyond  the  power  of  the 
state.  Seaboard  Air  Line  Railvv?ay  v. 
Seegers,  207  U.  S.  73,  52  L.  Ed.  108,  28 
S.   Ct.  28. 

387-73.  Statutes  awarding  attorney's 
fees  against  certain  classes  of  defendants. 
— Exacting  double  liability  and  an  at- 
torney's fee  under  the  authority  of  Ark. 
Laws  1907,  No.  61,  from  a  railway  com- 
pany refusing  to  pay  within  thirty  days  an 
excessive  demand  for  the  killing  of  live 
stock  by  one  of  its  trains,  takes  the  com- 
pany's property  without  due  process  of 
law.  St.  Louis,  etc.,  R.  Co.  v.  Wynne,  224 
U.   S.  354,  56   L.  Ed.  799,  32  S.  Ct.  493. 

The  owner  of  two  horses  which  were 
killed  by  a  train  of  a  railway  company 
served  upon  the  company  a  written  notice 
demanding  damages  in  the  sum  of  $500. 
The  company  refused  to  pay  the  demand, 
and  after  the  expiration  of  thirty  days  the 
owner  brought  suit  in  a  court  of  the  state 
to  recover  his  damages,  alleged  in  the 
complaint  to  be  $400.  A  trial  to  a  jury 
resulted  in  a  verdict  for  the  'owner,  as- 
sessing his  damages  at  the  amount  sued 
for,  and  the  court,  deeming  the  statute 
applicable,  gave  judgment  for  double  that 
amount  and  for  an  attorney's  fee  of  $50. 
It  will  be  perceived  that,  while  before  the 


333 


Vol.  IV. 


CONSTITUTIONAL  LAW 


390-391 


d.    In  Criiiiiiial  Proceedings — (1)    Generally. — See  note  81. 
(2)   Constitution  of  Grand  Jury. — See,  generally,  ante.  Civil  Rights,  p.  236. 
See  note  82a. 

(5)    Rules  of  Ecndence;  Absent  Witnesses. — See  note  87. 


suit  the  owner  demanded  $500  as  dam- 
ages, which  the  company  refused  to  pay, 
he  did  not  in  his  suit  either  claim  or  es- 
tablish that  he  was  entitled  to  that 
amount.  On  the  contrary,  by  the  allega- 
tions in  his  complaint,  he  confessed,  and 
by  the  verdict  of  the  jury  it  was  found, 
that  his  damages  were  but  $400.  Evi- 
dently, therefore,  the  prior  demand  was 
excessive  and  the  company  rightfully  re- 
fused to  pay  it.  The  application  made 
of  the  statute  was  such  that  the  company 
was  subjected  to  this  extraordinary  lia- 
bility for  refusing  to  pay  the  excessive  de- 
mand made  before  the  suit.  Held,  that 
the  statute,  as  so  construed  and  applied, 
was  an  arbitrary  exercise  of  the  powers 
of  government  and  violative  of  the  funda- 
mental rights  embraced  within  the  con- 
ception of  due  process  of  law.  St.  Louis, 
etc..  R.  Co.  V.  Wynne,  224  U.  S.  354,  56  L. 
Ed.  799,  32  S.   Ct.  493. 

390-81.  Equal  and  impartial  justice  in 
criminal  proceedings. — The  fourteenth 
amendment  was  not  intended  to,  and  does 
not,  limit  the  powers  of  a  state  in  dealing 
with  crime  committed  within  its  own 
borders  or  with  the  punishment  thereof, 
although  no  state  can  deprive  particular 
persons  or  classes  of  persons  of  equal  and 
impartial  justice  under  the  law.  In 
re  Kemmler,  136  U.  S.  436,  448,  34  L.  Ed. 
519,  10  S.  Ct.  930;  Caldwell  v.  Texas,  137 
U.  S.  692,  34  L.  Ed.  816,  11  S.  Ct.  224; 
Ughbanks  v.  Armstrong,  208  U.  S.  481, 
52  L.   Ed.   582,  28   S.   Ct.  372. 

The  fourteenth  amendment  does  not 
forbid  statutes  to  have  a  beginning — Dis- 
criminations in  point  of  time. — "The  four- 
teenth amendment  does  not  forbid  statutes 
and  statutory  changes  to  have  a  be- 
ginning, and  thus  discriminate  between 
the  rights  of  an  earlier  and  later  time." 
Williams  v.  Walsh,  222  U.  S.  415,  56  L.  Ed. 
253,  32  S.  Ct.  137;  Sperry,  etc..  Co.  v. 
Rhodes,  220  U.  S.  502,  505,  55  L.  Ed.  561, 
31    S.    Ct.   490. 

Legislation  which  makes  acts  criminal 
which  are  done  after  they  are  forbidden, 
and  assigns  no  penalties  to  acts  done  in 
pursuance  of  obligations  previously  le- 
gallj^  incurred,  is  not  arbitrary  classifica- 
tion. Williams  v.  Walsh,  222  U.  S.  415,  56 
L.  Ed.  253,  32  S.  Ct.  137. 

The  exception  in  favor  of  existing  con- 
tracts, contained  in  Laws  Kan.  1907.  c. 
250.  making  it  criminal  to  sell  or  deliver 
black  powder  for  use  in  any  coal  mines  in 
the  state  except  in  original  sealed  pack- 
ages containing  12^/^  pounds  of  powder, 
does  not  make  such  statute  repugnant  to 
Const.   U.    S.   Amend.   14,   as   denying   the 


equal  protection  of  the  laws.  Williams  v. 
Walsh,  222  U.  S.  415,  56  L.  Ed.  253,  32  S. 
Ct.  137,  affirming  Ex  parte  Williams,  79 
Kan.   212,   98    P.   777. 

A  statute  which  makes  it  a  misdemeanor 
to  use  the  name,  portrait  or  picture  of  any 
living  person  for  advertising  purposes 
without  the  written  consent  of  such  per- 
son, first  obtained,  and  which  gives  a 
right  of  action  to  the  person  whose  name, 
portrait  or  picture  is  so  used,  is  not  ob- 
noxious to  the  equal  protection  clause  of 
the  fourteenth  amendment,  because,  by 
its  express  terms,  it  is  made  to  apply  only 
to  the  use  of  photographs  taken  after,  and 
not  to  those  taken  previous  to  its  enact- 
ment. Sperry,  etc.,  Co.  v.  Rhodes,  220  U. 
S.   502,   55   L.    Ed.   561,   31    S.    Ct.   490. 

390-82a.  Constitution  of  grand  jury. — 
The  provision  in  Act  March  27,  1874  (Rev. 
St,  1874,  p.  372),  §  6,  that  no  exception  to 
a  grand  juror  on  account  of  his  age  shall 
be  allowed  after  he  has  been  sworn,  does 
not  deny  the  equal  protection  of  the  laws, 
under  Const.  U.  S.  Amend.  14,  to  one  in- 
dicted for  crime  committed  after  such 
grand  juror  had  been  sworn.  Judgment 
(Sup.),  66  A.  942,  affirmed.  (1907),  State 
■:■.  Lang,  68  A.  210,  judgment  affirmed. 
Lang  V.  New  Jersey,  209  U.  S.  467,  52  L. 
Ed.  894,  28   S.  Ct.  594. 

A  person  indicted  for  a  crime  committed 
after  the  grand  jury  was  impaneled  is  not 
denied  the  equal  protection  of  the  laws 
because  he  is  precluded  from  raising  the 
objection  that  two  of  the  grand  jurors 
were  over  the  age  fixed  b}'^  Laws  N,  J. 
1876,  p.  360,  c.  196.  under  which  objections 
on  that  ground  must  be  made  before  the 
iury  is  sworn,  where  the  object  sought  to 
be  attained  by  the  statute,  according  to 
the  view  adopted  by  the  state  court,  was 
to  make  the  grand  jurj'-  a  more  efficient 
instrument  of  justice,  and  not  to  benefit 
any  particular  defendant  or  class  of  de- 
fendants. Judgment.  State  v.  Lang  (N. 
T.  1907).  68  A.  210,  affirmed.  Lang  v. 
New  Jersey.  209  U.  S.  467,  52  L.  Ed.  894, 
28    S.    Ct.   594. 

391-87.  Rules  or  evidence — General 
nower  of  state  to  prescribe  rules  of  evi- 
dence.— See  ante,  "State  Courts;  Their 
Constitution,  Jurisdiction;  and  Procedure," 
VL  D.  3,  c,  (4),  (e). 

Rules  of  evidence — Prima  facie  pre- 
sumptions.— See  post,  "Laws  Affecting  the 
Rules    of    Evidence,"   VTri,    C,    1.^,    f. 

Production  of  books,  papers  and  docu- 
ments— Distinction  between  corporations 
and  individuals.— See  ante,  "Statute?.  Re- 
specting the  Rules  of  Evidence,"  VH,  B, 
4.  a,   (5). 


333 


391-392 


CONSTITUTIONAL  LAJV. 


\o\.  IV. 


(6)    Mode  of  Trial. — See  note  88. 

(8)     Unequal  Punishment.— '^tt  note  96. 


391-88.  Mode  of  trial. — A  state  maj- 
make  different  arrangements  for  trials  un- 
der different  circumstances  of  even  the 
same  class  of  offenses.  Graham  v.  West 
Virginia,  224  U.  S.  616,  56  L.  Ed.  917.  32 
S.  Ct.  583;  Brown  v.  New  Jersey,  175  U. 
S.  172,  177,  44  L.  Ed.  119,  20  S.  Ct.  77; 
Missouri  v.  Lewis,  101  U.  S.  22,  31,  25  L. 
Ed.  989;  Hayes  v.  Missouri,  120  U.  S.  68, 
71,  30  L.  Ed.  578,  7  S.  Ct.  350;  Lang  v. 
New  Jersey,  209  U.  S.  467,  52  L.  Ed.  894. 
28    S.    Ct.   594. 

As  to  persons  previously  convicted  of 
crime. — It  may  suitably  adapt  to  the  ex- 
igency the  method  of  determining  whether 
a  person  found  guilty  of  crime  has  pre- 
viously been  convicted  of  other  offenses. 
Graham,  v.  West  Virginia,  224  U.  S.  616, 
56  L.   Ed.  917,  32   S.   Ct.  583. 

Bringing  a  convict  after  judgment  be- 
fore the  court  of  another  county  in  a 
separate  proceeding  instituted  conform- 
ably to  W.  Va.  Code,  chap.  165,  §§  1-5,  by 
information  charging  him  with  prior  con- 
victions which  were  not  alleged  in  the  in- 
dictment on  which  he  was  last  tried  and 
convicted,  and,  on  the  finding  of  the  jury 
that  he  was  the  former  convict,  sentenc- 
ing him  to  the  additional  punishment 
which  chap.  152,  §§  23,  24,  in  such  cases 
prescribes,  does  not  deny  him  the  equal 
protection  of  the  laws  because  of  the  dif- 
ference in  procedure  between  the  case 
Vi'here  the  fact  of  former  conviction  is  al- 
leged in  the  indictment  and  determined  by 
the  jury  on  the  trial  of  the  charge  of 
crime,  and  the  case  where  it  is  charged 
in  the  information,  and  determined  by  a 
iury  in  a  proceeding  thereby  instituted 
Graham  v.  West  Virginia,  224  U.  S.  616. 
56   L.   Ed.   917,  32   S.   Ct.  583. 

Distinctions  between  corporations  and 
individuals. — Corporations  are  not  denied 
the  equal  protection  of  the  laws  because 
corporate  violators  of  the  Tennessee 
Anti-Trust  Act  of  March  16,  1903  (Laws 
1903,  c.  140),  may  be  proceeded  against 
by  bill  in  equity  on  relation  of  the  at- 
torney general,  while  natural  persons  of- 
fending against  its  provisions  can  not  be 
tried  without  a  preliminary  investigation 
by  a  grand  jury,  and  indictment  or  pre- 
sentment, and  a  trial  by  jur3^  with  the 
right  to  an  acquittal  unless  their  guilt  is 
established  beyond  a  reasonable  doubt, 
and  to  the  benefit  of  a  statute  of  limita- 
tions of  one  year.  Standard  Oil  Co.  v. 
Tennessee,  217  U.  S.  413,  54  L.  Ed.  817, 
30  S.  Ct.  543,  affirming  decree.  State  v. 
Standard  Oil  Co.  of  Kentucky  (1908),  110 
S.  W.   565.   120  Tenn.  86. 

Different  methods  of  trial  for  different 
corporations. — A  foreign  corporation 
ousted  and  fined  $50,000  in  civil  quo  war- 
ranto proceedings  in   the  highest  court  of 


a  state,  for  misuser  of  its  license  to  do 
business  in  the  state,  can  not  claim  to 
have  been  denied  the  equal  protection  of 
the  laws  because  corporations  prosecuted 
in  the  inferior  state  courts  for  identically 
the  same  acts,  in  violation  of  the  state 
Anti-Trust  Act,  are  entitled  to  a  trial  by 
jury,  and,  if  convicted,  can  be  ousted  of 
their  franchises  and  subjected  to  a  fine 
not  to  exceed  $100  per  day  during  the 
time  the  combination  continued  in  ef- 
fect. Standard  Oil  Co.  v.  Missouri,  224 
U.   S.  270,  56  L.   Ed.  760,  32   S.  Ct.  406. 

It  is  contended  that  the  defendants  were 
denied  the  equal  protection  of  the  law. 
This  claim  is  based  upon  the  fact  that, 
without  indictment  or  trial  by  jury,  they 
were  ousted  of  their  franchise  and  sub- 
jected to  a  fine  of  $50,000,  at  the  discre- 
tion of  the  supreme  court,  v.^hile  corpora- 
tions prosecuted  in  the  circuit  court  for 
the  identically  same  acts  in  violation  of 
the  anti-trust  statute  were  entitled  to  a 
trial  by  jur}%  and  if  convicted,  could  be 
ousted  of  their  franchises  and  subjected 
to  a  fine  not  to  exceed  $100  per  day,  dur- 
ing the  time  the  combination  continued 
in  effect.  But  proceedings  by  information 
in  the  nature  of  quo  warranto  differ  in 
form  and  consequence  from  a  prosecution 
by  indictment  for  violation  of  a  criminal 
statute.  In  the  one,  the  state  proceeds 
for  a  violation  of  the  companj^'s  private 
contract;  in  the  other,  it  prosecutes  for  a 
violation  of  public  laAV.  The  corporation 
may  be  deprived  of  its  franchise  for  non- 
user,  a  mere  failure  to  act.  It  may  also 
be  deprived  of  its  character  for  that 
which,  though  innocent  in  itself,  is  beyond 
the  power  conferred  upon  it  as  an  artificial 
person.  If,  however,  the  act  of  m.isuser 
is  not  only  ultra  vires  but  criminal,  there 
is  no  merger  of  the  civil  liability  in  the 
criminal  offense.  Separate  proceedings 
may  be  instituted,  one  to  secure  the  civil 
judgment,  and  the  other  to  enforce  the 
criminal  law.  Both  cases  may  involve 
a  consideration  of  the  same  facts;  and  evi- 
dence warranting  a  judgment  of  ouster 
may  be  sufificient  to  sustain  a  conviction 
for  crime.  A  judgment  maj^  in  one  case 
sometimes  be  a  bar  to  the  other,  but 
neither  remedy  is  exclusive.  The  double 
liability,  in  civil  and  criminal  proceedings, 
finds  its  counterpart  in  many  instances; 
as,  for  example,  where  an  attornej^  is  dis- 
barred or  ousted  of  his  right  to  practice 
in  the  court  because  of  conduct  for  which 
he  may  likewise  be  prosecuted  and  fined. 
Standard  Oil  Co.  -'.  Missouri.  224  U.  S. 
270.   56   L.    Ed.   760.   770,   32    S.   Ct.    406. 

392-96.  Increased  punishment  for  per- 
sons previously  convicted. — The  propriety 
of  inflicting  severer  punishment  upon  old 
offenders  has  lone  been  recognized  in  this 


334 


Vol.  R' 


COXSTITUTIOXAL  LAW. 


393-394 


f.  Equal  Protection  as  Regards  the  Right  of  Reiieiv  by  Xezv  Trial,  Appeal, 
Writ  of  Error,  etc. — Allowing  Appeal  to  Government  and  Not  to  the  Ac- 
cused.— The  equal  protection  of  the  laws  is  not  denied  by  an  act  of  conoress 
which  authorizes  the  government  to  bring  up  a  criminal  case  from  a  lower  court 
to  the  supreme  court  of  the  United  States  when  a  demurrer  to  an  indictment  has 
been  sustained,  although  the  same  privilege  is  denied  the  accused.'*^ 

5.  As  Requiring  Equal  and  Uniform  Taxation — a.  Prescribes  No  Iron 
Rule  of  Equal  Taxation. — See  note  5. 

c.  State  May  Adjust  System  in  All  Reasonable  and  Proper  JVays. — See 
note  7. 


country  and  in  England.  They  are  not 
punished  the  second  time  for  the  earlier 
offense,  but  the  repetition  of  criminal  con- 
duct aggravates  their  guilt  and  justifies 
heavier  penalties  when  they  are  again  con- 
victed. This  legislation  has  uniformly 
been  sustained  in  the  state  courts  and  it 
has  been  held  by  the  federal  supreme 
court  not  to  be  repugnant  to  the  federal 
constitution.  Graham  v.  West  Virginia, 
224  U.  S.  616,  56  L.  Ed.  917,  32  S.  Ct.  583; 
Moore  z:  ^Missouri.  159  U.  S.  673,  40  L. 
Ed.  301,  16  S.  Ct.  179;  McDonald  v.  Mas- 
sachusetts, 180  U.  S.  311.  45  L.  Ed.  542,  21 
S.   Ct.   389. 

A  person  sentenced  under  the  Michigan 
Indeterminate  Sentence  Act  (Pub.  Acts 
1903,  No.  136),  after  having  been  twice 
before  convicted  of  felony,  is  not  denied 
the  equal  protection  of  the  laws  because 
he  is  deprived  by  that  act,  of  the  privi- 
lege therein  accorded  to  other  convicts  at 
the  end  of  the  minimum  term  of  the 
sentence  to  make  application  for  parole, 
although  the  statute  gives  no  hearing 
upon  the  question  of  prior  conviction. 
Ughbanks  z:  Armistrong,  208  U.  S.  481. 
52   L.   Ed.  582,  28   S.   Ct.  372. 

Singling  out  convicts  serving  life  sen- 
tences in  a  state  prison  as  proper  subjects 
for  the  imposition  of  the  death  penalty,  as 
is  done  by  Cal.  Pen.  Code,  §  246,  in  case 
they  shall,  with  malice  aforethought, 
commit  an  assault  upon  the  person  of  an- 
other with  a  deadly  weapon  or  instrument, 
or  by  any  means  of  force  likelj^  to  pro- 
duce great  bodily  injury,  does  not  deny 
such  life  prisoners  the  equal  protection  of 
the  laws.  Finley  z\  California,  222  U.  S. 
28,  56  L.   Ed.  75.  32   S.   Ct.   13. 

393-4a.  Allowing  appeal  to  government, 
and  not  to  the  accused. — United  States  v. 
Heinze,  218  U.  S.  532.  54  L.  Ed.  1139,  31 
S.  Ct.  98;  United  States  v.  Bitty,  208  U. 
S.  393,  52  L.  Ed.  543,  28  S.  Ct.  396;  Taylor 
V.  United  States,  207  U.  S.  120,  52  L.  Ed. 
130,   28    S.    Ct.    53. 

Congress  could,  bv  Act  March  2,  1907. 
c.  2564,  34  Stat.  '  1246  CU.  S.  Comp.  St. 
Supp.  1909,  p.  220X,  authorize  the  govern- 
ment to  bring  up  a  criminal  case  frcJm  a 
federal  circuit  court  to  the  supreme  court 
when  a  demurrer  to  an  indictment  has 
been  sustained,  although  the  same  privi- 
lege  is   denied   the    accused   when    the   in- 


dictment is  sustained,  even  assuming  that 
the  United  States  is  bound  to  afford  the 
equal  protection  of  the  laws  to  persons 
within  its  jurisdiction.  United  States  v. 
Heinze,  218  U.  S.  532,  54  L.  Ed.  1139,  31 
S.   Ct.   98. 

Constitutional  rights  of  the  accused  are 
not  violated  by  Act  March  2.  1907,  c.  2564, 
34  Stat.  1246  (U.  S.  Comp.  St.  Supp.  1907, 
p.  209),  authorizing  the  United  States  to 
bring  up  a  criminal  case  from  a  circuit 
court  to  the  supreme  court  by  a  direct 
writ  of  error  where  an  indictment  has 
been  quashed  or  set  aside,  or  a  demurrer 
to  the  indictment  or  any  count  thereof 
has  been  sustained  on  the  ground  of  the 
invalidity  or  construction  of  the  statute 
upon  which  the  indictment  was  founded, 
although  such  statute  does  not  allow  the 
accused  to  brmg  up  the  case  in  the  same 
way  when  a  demurrer  to  the  indictment 
or  some  count  thereof  has  been  overruled^ 
Judgment  (C.  C.  1907),  155  F.  938,  re- 
versed. United  States  v.  Bitty,  208  U.  S. 
393,  52  L.  Ed.  543,  28  S.  Ct.  396;  Taylor  :■. 
United  States.  207  U.  S.  120,  52  L.  Ed.  130. 
28    S.    Ct.   53. 

393-5.  Prescribes  no  iron  rule  of  equal 
taxation. — The  fourteenth  amendment  was 
not  intended  to  compel  the  state  to  adopt 
an  iron  rule  of  equal  taxation.  If  that 
were  its  proper  construction,  it  would  not 
only  supersede  all  those  constitutional 
provisions  and  laws  of  some  of  the  states, 
whose  object  is  to  secure  equality  of 
taxation,  and  which  are  usuallj'  accom- 
panied with  qualifications  deemed  ma- 
terial, but  it  would  render  nugatory  those 
discriminations  which  the  best  interests 
of  societ3^  require;  which  are  necessary 
for  the  encouragement  of  needed  and  use- 
ful industries,  and  the  discouragement  of 
intemperance  and  vice;  and  which  every 
state,  in  one  form  or  another,  deems  it  ex- 
pedient to  adopt.  Bell's  Gap  R.  Co.  v. 
Pennsylvania,  134  U.  S.  232,  237,  33  L. 
Ed.  892.  10  S.  Ct.  533;  Southwestern  Oil 
Co.  V.  Texas,  217  U.  S.  114,  54  L.  Ed.  688, 
30  S.  Ct.  496;  Brown-Forman  Co.  v.  Ken- 
tuckv,  217  U.  S.  563,  54  L.  Ed.  883,  30  S. 
Ct.  5"78. 

394-7.  State  may  adjust  system  in  all 
reasonable  ways. — "The  provision  in  the 
fourteenth  amendment.  that_  no_  state_  shall 
deny  to  any  person  within  its  jurisdiction 


335 


394 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


d.   Permits  Classification  and  Diversity  in  Taxation. — See  note  8. 


the  equal  protection  of  the  laws,  was  not 
intended  to  prevent  a  state  from  adjusting- 
its  system  of  taxation  in  all  proper  and 
reasonable  ways.  It  may,  if  it  chooses, 
exempt  certain  classes  of  property  from 
any  taxation,  at  all,  such  as  churches,  li- 
braries, and  the  property  of  charitable  in- 
stitutions. It  may  impose  different  specific 
taxes  upon  different  trades  and  profes- 
sions, and  may  vary  the  rates  of  exercise 
upon  various  products;  it  may  tax  real 
estate  and  personal  property  in  a  different 
manner;  it  may  tax  visible  property  only, 
and  not  tax  securities  for  payment  of 
money;  it  may  allow  deductions  for  in- 
debtedness, or  not  allows  them.  All  such 
regulations,  and  those  of  like  character, 
so  long  as  they  proceed  within  reasonable 
limits  and  general  usages,  are  within  the 
discretion  of  the  state  legislature,  or  the 
people  of  the  state,  framing  their  constitu- 
tion. But  clear  and  hostile  discrimina- 
tions against  particular  persons  and 
classes,  especially  such  as  are  of  an  un- 
usual character,  unknown  to  the  practice 
of  our  governments,  might  be  obnoxious 
to  the  constitutional  prohibition.  It 
would,  however,  be  impracticable  and  un- 
wise to  attempt  to  lay  down  any  general 
rule  or  definition  on  the  subject,  that 
would  include  all  cases.  They  must  be 
decided  as  thev  arise."  Bell's  Gap  R.  Co. 
V.  Pennsylvania,  134  U.  S.  232,  237,  33  L. 
Ed.  892.  10  S.  Ct.  533;  Southwestern  Oil 
Co.  V.  Texas,  217  U.  S.  114,  54  L.  Ed.  688. 
30  S.  Ct.  496. 

Except  as  restrained  by  its  own  con- 
stitution or  by  the  constitution  of  the 
United  States,  the  state  of  Texas,  by  its 
legislature,  has  full  power  to  prescribe 
an}'  system  of  taxation  which,  in  its  judg- 
ment, is  best  or  necessary  for  its  people 
and  government;  that,  so  far  as  the  power 
of  the  United  States  is  concerned,  the 
state  has  the  right,  by  any  rule  it  deems 
proper,  to  classify  persons  or  businesses 
for  the  purposes  of  taxation,  subject  to 
the  condition  that  such  classification  shall 
not  be  in  violation  of  the  constitution  of 
the  United  States;  that  the  requirement 
by  the  state,  that  all  wholesale  dealers  in 
specified  articles  shall  pay  a  tax  of  a 
given  amount  on  their  occupation,  without 
exacting  a  similar  tax  on  the  occupations 
of  wholesale  dealers  in  other  articles,  can 
not,  on  the  face  of  the  statute  or  by  rea- 
son of  any  facts  within  the  judicial  knowl- 
edge of  the  court,  be  held,  within  the 
meaning  of  the  fourteenth  amendment,  to 
deprive  the  taxpayer  of  his  property  with- 
out due  process  of  law,  or  to  deny  him  the 
equal  protection  of  the  laws;  and  that  the 
federal  court  can  not  interfere  with  the 
enforcement  of  the  statute  simply  because 
it  may  disapprove  its  terms,  or  question 
the  wisdom  of  its  enactment,  or  because 


it  can  not  be  sure  as  to  the  precise  rea- 
sons inducing  the  state  to  enact  it.  South- 
western Oil  Co.  V.  Texas,  217  U.  S.  114, 
54   L.    Ed.    688.   30   S.    Ct.   496. 

394-8.  Permits  classification  and  diver- 
sity in  taxation. — It  is  elementary  that  the 
constitution  of  the  United  States  does  not, 
generally  speaking,  control  the  power  of 
the  states  to  select  and  classify  subjects 
of  taxation.  Moffitt  v.  Kelly,  218  U.  S. 
400,  54  L.   Ed.   1086,  31   S.  Ct.  79. 

Fundamental  to  the  very  existence  of 
the  governmental  power  of  the  states  as 
is  this  function  of  taxation,  it  is  neverthe- 
less subject  to  the  beneficient  restriction 
that  it  shall  not  be  so  exercised  as  to  deny 
to  any  the  equal  protection  of  the  law. 
But  this  restriction  does  not  compel  the 
adoption  of  "an  iron  rule  of  equal  taxa- 
tion," nor  prevent  variety  in  methods  of 
taxation,  or  discretion  in  the  selection  of 
subjects,  or  classification  for  purposes  of 
taxation  of  either  properties,  businesses, 
trades,  callings,  or  occupations.  This 
much  has  been  over  and  over  announced 
by  the  federal  supreme  court.  Brown- 
Forman  Co.  v.  Kentucky,  217  U.  S. 
563,  54  L.  Ed.  883.  30  S.  Ct.  578;  Bell's 
Gap  R.  Co.  V.  Pennsylvania,  134  U.  S.  232, 
33  L.  Ed.  892,  10  S.  Ct.  533;  Cargill  Co.  V. 
Minnesota,  180  U.  S.  452,  45  L.  Ed.  619, 
21  S.  Ct.  423;  American  Sugar  Refin.  Co. 
7'.  Louisiana,  179  U.  S.  89.  45  L.  Ed.  102. 
21  S.  Ct.  43;  Beers  v.  Glynn,  211  U.  S. 
477,  53  L.   Ed.  290,  29  S.  Ct.  186. 

The  fourteenth  amendment  does  not 
diminish  the  taxing  power  of  the  state, 
but  only  requires  that,  in  its  exercise,  the 
citizen  must  be  aft'orded  an  opportunity 
to  be  heard  on  all  questions  of  liability 
and  value,  and  shall  not,  by  arbitrary  and 
discriminatory  provisions,  be  denied  equal 
protection.  It  does  not  deprive  the  state 
of  the  power  to  select  the  subjects  of 
taxation.  Keeney  v.  Comptroller,  222  U. 
S.  525.  56  L.  Ed.  299,  32  S.  Ct.  105. 

Discriminating  between  real  and  per- 
sonal property. — The  state  may  tax  real 
estate  and  personal  property  in  a  different 
manner.  Southwestern  Oil  Co.  z'.  Texas, 
217  U.   S.  114.   5  4  L.   Ed.  fiS8.  30  S.  Ct.  496. 

May  classify  occupations,  trades,  pro- 
fessions, etc. — The  state  may  impose  dif- 
ferent specific  taxes  upon  different  trades 
and  professions.  Southwestern  Oil  Co.  v. 
Texas,  217  U.  S  114,  54  L.  Ed.  688,  30  S. 
Ct.   496. 

A  very  wide  discretion  must  be  con- 
ceded to  the  legislative  power  of  the  state 
in  the  classification  of  trades,  callings, 
liusinesses,  or  occupations  which  may  be 
subjected  to  special  forms  of  regulation 
or  taxation  through  an  excise  or  license 
tax.  If  the  selection  or  classification  is 
neither  capricious  nor  arbitrary,  and  rests 
upon    some    reasonable     consideration     of 


336 


Vol.  IV. 


COXSTITUTIOXAL  LA]V. 


394 


difference  or  policy,  there  is  no  denial  of 
the  equal  protection  of  the  law.  South- 
western Oil  Co.  V.  Texas,  217  U.  S.  114,  54 
L.  Ed.  688,  30  S.  Ct.  496;  Brown-Forman 
Co.  V.  Kentucky,  217  U.  S.  563,  54  L.  Ed. 
883,  30  S.  Ct.  578. 

"It  may  make  discriminations,  if  founded 
on  distinctions  that  we  can  not  pronounce 
unreasonable  and  purely  arbitrary." 
Quong  Wing  v.  Kirkendall,  223  U.  S.  59. 
56  L.   Ed.   350,  32   S.   Ct.   192. 

Same — May  favor  certain  business, 
trades,  or  forms  of  industry. — "'A  state 
does  not  deny  the  equal  protection  of  the 
laws  merely  by  adjusting  its  revenue  laws 
and  taxing  sj'^stem  in  such  a  way  as  to 
favor  certain  industries  or  forms  of  in- 
dustry. Like  the  United  States,  although 
with  more  restriction  and  in  less  degree, 
a  state  may  carry  out  a  policy,  even  a 
policy  with  which  we.  might  disagree." 
Quong  Wing  v.  Kirkendall.  223  U.  S.  59, 
56  L.  Ed.  350.  32  S.  Ct.  192;  McLean  v. 
Arkansas,  211  U.  S.  539,  547,  53  L.  Ed. 
315,  29  S.  Ct.  206;  Armour  Packing  Co.  v. 
Lacy,  200  U.  S.  226,  235,  50  L.  Ed.  451,  26 
S.  Ct.  232;  Connolly  v.  Union  Sewer  Pipe 
Co..  184  U.  S.  540,  562.  46  L.  Ed.  679,  22 
S.   Ct.   431. 

If  the  state  sees  fit  to  encourage  steam 
laundries  and  discourage  hand  laundries, 
that  is  its  own  affair.  And  if,  again,  it 
finds  a  ground  of  distinction  in  sex,  that 
is  not  without  precedent.  Quong  Wing 
7'.  Kirkendall.  223  U.  S.  59.  56  L.  Ed.  350, 
32  S.  Ct.  192.  See,  also,  ante,  "Distinc- 
tions Based  upon  Sex,"  VII,  B,  3,  b^/^. 

Same — May  discriminate  between  in- 
dividuals and  corporations. — There  is  such 
a  substantial  difference  between  the  carry- 
ing on  of  business  by  corporations  and  the 
same  business  when  conducted  by  a  pri- 
vate firm  or  individual  as  would  justify, 
even  were  the  principles  of  the  fourteenth 
amendment  to  the  federal  constitution  ap- 
plicable, the  excise  imposed  by  Act  Aug. 
5.  1909,  c.  6.  §  38.  36  Stat.  112  (U.  S.  Comp. 
St.  Supp.  1909,  p.  844),  upon  the  carrying 
on  or  the  doing  of  business  in  a  corporate 
or  quasi  corporate  capacity.  Flint  v. 
Stone  Tracy  Co.,  220  U.  S.  107,  55  L.  Ed. 
SSn.  31  S.  Ct.  342. 

Same — Intoxicating  liquors — Distinction 
between  distillers  and  rectifiers. — The  rea- 
sons for  discriminating  between  distillers 
and  rectifiers  is  not  obscure,  and  a  classifi- 
cation which  includes  one  and  omits  the 
other  is  by  no  means  arbitrary  or  unrea- 
sonable. Brown-Forman  Co.  v.  Ken- 
tucky, 217  U.  S.  563,  54  L.  Ed.  883,  30  S. 
Ct.  578. 

The  license  or  occupation  tax  imposed 
upon  the  business  of  compounding,  recti- 
fying, adulterating,  or  blending  distilled 
spirits  by  Act  Ky.  March  28.  1906  (Acts 
1906,  p.  549),  is  not  invalid  as  denying  the 
equal  protection  of  the  laws  because  no 
such  tax  is  exacted  from  either  resident 
or  nonresident  distillers  who  neither  rec- 

12  U  S  Enc— 22 


tify,  compound,  adulterate,  nor  blend 
their  products,  nor  from  rectifiers  and 
blenders  of  other  states  and  countries  who 
vend  in  the  state  untaxed  rectified  or 
Idended  spirits,  in  direct  competition  with 
the  spirits  of  local  rectifiers  or  blenders. 
Brown-Forman  Co.  v.  Kentucky,  217  U. 
S.  563,  54  L.  Ed.  883,  30  S.  Ct.  578,  affirm- 
ing judgment,  Brown-Forman  Co.  v. 
Same    (1907),   101   S.  W.  321,   125   Ky.  402. 

Same — Special  rule  as  to  distilled  spirits 
in  bond. — The  distinction  made  by  the 
taxing  statutes  of  the  state  of  Kentucky 
between  distilled  spirits  in  bond  and 
other  property  does  not  constitute  a  dis- 
crimination condemned  by  the  fourteenth 
amendment.  The  power  of  the  state  to 
classify  persons  and  property  in  its  legis- 
lation is  welL  established  and  the  power  is 
not  transcended  by  the  statutes  under  re- 
view. Thompson  v.  Kentucky,  209  U.  S. 
340,  52  L.  Ed.  822.  28  S.  Ct.  533;  Billings 
V.  Illinois,  188  U.  S.  97.  47  L.  Ed.  400,  23  S. 
Ct.  272. 

Same — Making  warehouseman  primarily 
liable  for  the  tax. — Neither  due  process 
nor  the  equal  protection  of  the  laws  is  de- 
nied to  the  warehouseman  by  the  taxation 
of  distilled  spirits  in  bonded  warehouses 
in  the  state,  provided  for  by  Act  Ky. 
:\Iarch  29,  1902  (Acts  1902,  p.  226,  c.  102), 
-  under  which  the  warehouseman  is  made 
liable  to  pay  the  tax,  and  is  given  a  lien 
on  the  property  for  the  amount  paid. 
Judgment  (1906),  94  S-  W.  654,  29  Ky. 
Law  Rep.  705.  affirmed.  Thompson  v. 
Kentuck3\  209  U.  S.  340,  52  L.  Ed.  822,  28 
S.  Ct.  533. 

Same — Special  rules  to  wholesale  deal- 
ers in  oils. — Wholesale  dealers  in  oils  are 
not  denied  the  equal  protection  of  the  laws 
by  the  occupation  tax  miposed  upon  such 
dealers  by  Gen.  Laws  Tex.  1905,  c.  148, 
§  9,  although  no  similar  tax  is  exacted 
from  wholesale  dealers  in  other  articles 
of  merchandise,  such  as  sugar,  bacon,  coal 
and  iron.  Judgment  (1907),  103  S.  W. 
489,  100  Tex.  647,  affirmed.  Southwestern 
Oil  Co.  V.  Texas,  217  U.  S.  114,  54  L.  Ed. 
688,  30  S.  Ct.  496. 

With  reference  to  this  case,  the_  court 
says:  "In  our  judgment,  the  objection 
that,  within  the  true  meaning  of  the  four- 
teenth amendment,  the  statute  of  Texas 
has  the  effect  to  deny  to  the  Oil  Company 
the  equal  protection  of  the  laws,  does  not 
rest  upon  any  solid  basis.  The  statute 
makes  no  distinction  among  such  whole- 
sale dealers  as  handle  the  particular  ar- 
ticles specified  in  §  9.  The  state  had  the 
right  to  classify  such  dealers  separately 
from  those  who  sold,  by  wholesale,  other 
articles  than  those  mentioned  in  that  sec- 
tion. The  statute  puts  the  constituents  of 
each  of  those  separate  classes  in  the  same 
plane  of  equ3lity.  It  is  not  arbitrary  leg- 
islation, except  in  the  sense  that  all  legis- 
lation is  arbitrary.  If  it  be  within  the 
power  of  the  legislature  to  enact  the  stat- 


337 


394 


CONSTITUTIOXAL  LAW. 


\o\.  IV. 


ute,  then  arbitrariness  can  not  be  pred- 
icated of  it  in  a  court  of  law.  And  it 
can  not  be  held  to  be  beyond  legislative 
power  simply  because  of  its  classification 
of  occupations.  What  were  the  special 
reasons  or  motives  inducing  the  state  to 
adopt  the  classification  of  which  the  Oil 
Company  complains,  we  do  not  certainly 
know.  Nor  is  it  important  that  we  should 
certainly  know.  It  may  be  that  the  main 
purpose  of  the  state  was  to  encourage  re- 
tail dealing  in  the  particular  articles  men- 
tioned m  §  9.  If  the  statute  had  its 
origin  in  such  a  view,  we  do  not  perceive 
that  this  court  can  deny  the  power  of  the 
state  to  Droceed  on  that  ground."  South- 
western Oil  Co.  V.  Texas,  217  U.  S.  114. 
54  L.   Ed.   CSS.  30  S.   Ct.  496. 

Special  rule  as  to  bucket  shops  and  deal- 
ing in  futures. — See  post,  POLICE 
POWER. 

Equal  protection  in  the  collection  of 
back  taxes. — The  provisions  for  the  for- 
feiture of  land  titles  to  the  state  for  fail- 
ure to  list  and  pay  taxes  thereon  for  cer- 
tain specified  j^ears.  made  by  Act  Ky. 
March  15,  1906.  c.  22,  art.  3,  do  not  deny 
the  equal  protection  of  the  laws  because, 
in  the  application  of  such  statute,  it  can 
only  meet  conditions  such  as  are  embraced 
within  the  law  in  a  part  of  the  counties 
of  the  state.  Kentucky  Union  Co.  z'. . 
Kentucky.  219  U.  S.  140,  55  L.  Ed.  137, 
31  S.  Ct.  171,  affirming  judgment  (1907). 
106  S.  W.  260,  127  Ky.  667.  and  (1908). 
lO.S  S.  W.  931,  128  Ky.  610,  111  S.  W.  362, 
33  Ky.  Law  Rep.  857. 

Landowners  who  did  not  acquire  their 
title  until  after  the  delinquencies  had  oc- 
curred can. not  claim  to  have  been  denied 
the  equal  protection  of  the  laws  by  the 
application  to  them  of  the  provisions  of 
Act  Ky.  March  15,  1906,  c.  22,  art.  3,  for 
the  forfeiture  of  such  lands  to  the  state, 
because  of  the  failure  of  the  owners  to 
list  lands  for  taxation  and  pay  the  taxes 
thereon  for  certain  specified  years.  Ken- 
tucky Union  Co.  v.  Kentucky,  219  U.  S. 
140,  55  L.   Ed.  137,  31  S.  Ct.  171. 

Subjecting  foreign  corporation  to  spe- 
cial rule. — To  tax  foreign  corporations  for 
carrying  on  business,  by  a  different  and 
much  more  onerous  rule  than  is  used  in 
taxing  dom.estic  corporations  for  the  same 
privilege,  is  a  denial  of  the  equal  protec- 
tion of  the  laws,  and  the  plaintiff  a  person 
within  the  state,  is  in  a  position  to  in- 
voke the  protection  of  the  fourteentii 
amendment,  on  the  other  ground  that  such 
attempted  taxation  does  violence  to  the 
federal  constitution.  Southern  R.  Co.  t'. 
Greene,  216  U.  S.  400,  54  L.  Ed.  536,  30  S. 
Ct.   287. 

A  foreign  railway  corporation  which 
has  come  into  the  state  in  compliance  with 
its  laws,  and  has  therein  acquired  prop- 
erty of  a  permanent  nature,  upon  which  it 
has  paid  all  state  taxes,  is  a  person  within 
the  jurisdiction   of  the   state,  and   is  pro- 


tected by  the  equal  protection  of  the  laws 
clause  of  Const.  U.  S.  Amend.  14,  against 
the  imposition,  under  Code  Ala.  1907, 
§§  2391-2400,  of  an  additional  franchise  tax 
for  the  privilege  of  doing  business  within 
the  state,  where  no  such  tax  is  imposed 
upon  domestic  corporations  carrying  on 
a  similar  business.  Southern  R.  Co.  v. 
Greene,  216  U.  S.  400,  54  L.  Ed.  536,  30 
S.  Ct.  287.  reversing  judgment  (1909),  49 
So.  404;  Louisville,  etc.,  R.  Co.  v.  Gaston, 
216  U.  S.  418,  54  L.  Ed.  542,  30  S.  Ct.  291. 
reversing   judgment    (1909),   49    So.   412. 

Neither  can  such  tax  be  sustained  upon 
the  ground  that  the  tax  upon  domestic 
corporations  is  for  the  privilege  of  being 
a  corporation  while  the  one  upon  foreign 
corporations  is  for  the  privilege  of  doing 
business  within  the  state.  It  would  be  a 
fanciful  distinction  to  say  that  there  is 
any  real  dififerenc.e  in  the  burden  imposed 
because  the  one  is  taxed  for  the  privilege 
of  a  foreign  corporation  to  do  business  in 
the  state,  and  the  other  for  the  right  to 
be  a  corporation.  The  fact  is  that  both 
corporations  do  the  same  business  in 
character  and  kind,  and  under  the  statute 
in  question  a  foreign  corporation  may  be 
taxed  many  thousands  of  dollars  for  the 
privilege  of  doing,  within  the  state,  ex- 
actly the  same  business  as  the  domestic 
corporation  is  permitted  to  do  by  a  tax 
upon  its  privilege,  amounting  to  only  a 
few  hundred  dollars.  vSouthern  R.  Co.  %■. 
Greene,  216  U.  S.  400,  54  L.  Ed.  536.  30 
S.  Ct.  287. 

"The  corporation  plaintiff,  under  the 
conditions  which  we  have  detailed,  is, 
within  the  meaning  of  the  fourteenth 
amendment,  a  person  within  the  iurisdic- 
tion  of  the  state  of  Alabama,  and  entitled 
to  be  protected  against  any  statute  of  the 
state  which  deprives  it  of  the  equal  pro- 
tection of  the  laws."  Southern  R.  Co.  -v. 
Greene,  216  U.  S.  400,  54  L.  Ed.  536,  30  S- 
Ct.   287. 

Intervention  and  legacy  taxes — Upon 
right  of  surviving  wife  to  take  community 
property. — The  nature  and  character  (^f 
the  interest  of  the  surviving  wife  in  the 
community  property  for  the  purpose  of 
taxation  is  peculiarly  a  local  question  to 
be  decided  by  the  state  courts!  There  is 
therefore  no  merit  in  a  contention  that  an 
inheritance  tax  upon  such  interest  is  il- 
legal and  that  the  surviving  wife  is  denied 
equal  protection  of  the  laws  upon  the  the- 
ory that  her  share  in  the  community 
propert}'  was  a  vested  interest  during  the 
life  of  the  husband  and  could  not  on  the 
death  of  the  husband  be  taxed  differently 
from  any  other  property,  namel3^  accord- 
ing to  value,  without  violating  the  state 
constitution  and  creating  an  inequality 
repugnant  to  the  constitution  of  the 
United  States.  Moffitt  v.  Kelly,  218  U.  S. 
400,  54  L.  Ed.  1086.  31   S.  Ct.  79. 

Even  although  the  wife's  right  in  the 
community   property   was    a   vested    right 


338 


Vol.  IV 


COXSTITUTIOXAL  LAW. 


401-402 


e.  Docs  Xot  Forbid  Exemptions. — See  note  9. 

f.  Limitations    upon   Pozcers    of  Adjustment   and    Classification — (1)    Gen- 
erally.— See  note   13. 

(2)    Classification  Xot  to  Be  Arbitrary;  Hostile  Discriminations  Forbidden. — 
See  note  14. 


which  could  not  be  impaired  by  subse- 
quent legislation,  it  was  nevertheless 
within  the  power-  of  the  state,  without 
violating  the  equal  protection,  due  process, 
or  impairment  of  obligation  clauses  of  the 
constitution  of  the  United  States,  in  se- 
lecting objects  of  taxation,  to  select  as  a 
subject  of  taxation,  the  vesting  in  com- 
plete possession  and  enjoj^ment  by  wives 
of  their  shares  in  community  property, 
consequent  upon  the  death  of  their  hus- 
bands, and  the  resulting  cessation  of  their 
power  to  control  the  same  and  enjoy  the 
fruits  thereof.  :\Ioffitt  v.  Kell3%  218  U. 
S.  400,  54  L.   Ed.  1086,  31   S.   Ct.  79. 

The  mere  fact  that  the  wife  had  a  pre- 
existing right  to  the  property,  created  no 
exemption  from  taxation  if  the  selection 
for  taxation  would  be  otherwise  legal. 
Moffitt  V.  Kelly.  218  U.  S.  400,  54  L.  Ed. 
1086,    31    S.    Ct.    79. 

Same — Distinction  where  nonresident 
decedent  owns  both  realty  and  personalty. 
— The  equal  protection  of  the  laws  is  not 
denied  by  the  imposition  of  the  inheritance 
tax  provided  for  by  Laws  X.  Y.  1887,  p. 
921,  c.  713,  upon  certain  bequests^  of  per- 
sonalty by  a  nonresident  decedent  owning 
both  real  and  personal  property  within  the 
state  because,  under  that  statute,  the  tax 
could  not  be  collected  if  the  only  property 
belonging  to  the  decedent  situated  within 
the  state  was  personalty.  Judgment,  In 
re  Lord's  Estate,  79  N.  E.  1110,  186  N.  Y. 
549,  affirmed.  Beers  v.  Glynn,  211  U.  S. 
477,  53  L.  Ed.  290.  29  S.   Ct.   186. 

Same — Tax  upon  transfer  by  deed  in- 
tended to  take  effect  at  death. — Subject- 
ing to  the  tax  authorized  by  Laws  X.  Y. 
1896,  c.  908,  a  transfer  of  property  by  deed 
intended  to  take  effect  at  the  death  of  the 
grantor,  without  taxing  transfers  intended 
to  take  effect  upon  the  death  of  some  per- 
son other  than  the  grantor,  or  upon  the 
happening  of  a  certain  or  contingent 
event,  does  not  involve  such  a  discrimina- 
tion as  to  deny  the  equal  protection  of  the 
laws  guaranteed  by  the  fourteenth  amend- 
ment to  the  federal  constitution.  Keeney 
V.  Comptroller.  222  U.  S.  525,  56  L.  Ed. 
299.  32  S.  Ct.  105. 

The  tax  measured  by  the  value  of  the 
propert3%  authorized  by  Laws  X^.  Y.  1896, 
c.  908,  when  propertj'  is  transferred  by 
deed  intended  to  take  effect  upon  the 
death  of  the  grantor,  is  one  in  the  nature 
of  an  excise  tax  on  the  transfer,  and  is 
not  void  as  denying  the  equal  protection 
of  the  laws  guaranteed  by  Const.  U.  S. 
Amend.  14,  because  lacking  in  the  ele- 
ments   of    uniformity,     and     equality      re- 


quired in  the  assessment  of  property 
taxes.  Keeney  v.  Comptroller,  222  U. 
S.  525,  56  L.  Ed.  299,  32  S.  Ct.  105,  affirm- 
ing judgment  (1909),  In  re  Keeney's  Es- 
tate, 87  N.  E.  428,  194  X.  Y.  281. 

As  to  the  other  discriminatory  features 
which,  it  is  alleged,  operate  to  deny  the 
equal  protection  of  the  law,  it  is  sufficient 
to  say  that  it  is  now  well  settled  that  the 
state  may  impose  a  graduated  tax  in  this 
class  of  cases,  inheritance  taxes.  Keeney 
V.  Comptroller,  222  U.  S.  525,  56  L.  Ed. 
299,  32  S.  Ct.  105;  Magoun  v.  Illinois 
Trust,  etc..  Bank.  170  U.  S.  283.  298.  42  L. 
Ed.    1037.    18    S.    Ct.    594. 

Requiring  purchase  at  tax  sale  to  give 
notice  of  intention  to  foreclose  owner's 
equity  of  redemption. — The  grantee  in  a 
tax  deed  can  not  claim  to  have  been  de- 
nied the  equal  protection  of  the  laws  by 
Pub.  Laws  Mich.  1897,  p.  294,  Xo.  229, 
requiring  the  giving  of  notice  to  the  origi- 
nal owners  to  cut  off  the  right  of  re- 
demption, on  the  theory  that,  by  the  pro- 
ceedings under  the  tax  laws,  the  state 
acquired  an  absolute  title,  which  it  con- 
veyed by  the  tax  deed,  and  that  the  stat- 
ute operated  to  divest  such  title  and 
transfer  it  to  another.  Rusch  v.  Duncan 
Land,  etc.,  Co.,  211  U.  S.  526,  53  L.  Ed. 
312.   29   S.    Ct.   172. 

401-9.  Does  not  forbid  exemptions. — 
The  state  may.  if  it  chooses,  exempt  cer- 
tain classes  of  property  from  any  taxa- 
tion at  all,  such  as  churches,  libraries,  and 
the  property  of  charitable  institutions. 
Southwestern  Oil  Co.  v.  Texas,  217  U.  S. 
114,  54  L.  Ed.  688.  30  S.  Ct.  496;  Beers 
V.  Glynn,  211  U.  S.'  477,  53  L.  Ed.  290.  29 
S.  Ct.  186. 

402-13.  Limitation  of  powers  of  adjust- 
ment and  classification. — Fundamental  to 
the  very  existence  of  the  governmental 
power  of  the  states  as  is  this  function  of 
taxation,  it  is  nevertheless  subject  to  the 
beneficent  restriction  that  it  shall  not  be 
so  exercised  as  to  deny  to  any  the  equal 
protection  of  the  law.  Brown-Forman  Co. 
V.  Kentucky,  217  U.  S.  563,  54  L.  Ed. 
883,  30  S.  Ct.  578:  Southwestern  Oil  Co. 
V.  Texas.  217  U.  S.  114.  54  L.  Ed.  688,  30 
S.    Ct.    496. 

402-14.  Arbitrary  and  hostile  discrimma- 
tions  forbidden. — "Clear  and  hostile  dis- 
criminations against  particular  persons 
and  classes,  especially  such  as  are  of  un- 
usual character,  unknown  to  the  practice 
of  our  governments,  might  be  obnoxious 
to  the  constitutional  prohibition.  It\youId, 
however,  be  impracticable  and  unwise  to 
attempt  to  lay  down  any  general  rule  or 


339 


403-404 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


(3)  State  Permitted  a  Wide  Discretion. — See  note  18. 

(4)  Statute  Not  Invalid  Because  of  Mere  Inequality  of  Results. — See  notes 
19,  24, 

iy2.  Failure  to  Enforce  Law  as  to  Other  Taxpayers. — The  mere  fact  that 
the  state  authorities  have  failed  or  refused  to  enforce  a  valid  tax  law  as  to  certain 
other  taxpayers,  and  that  they  have  thereby  succeeded  in  escaping  their  just 
portion  of  the  burdens  of  taxation,  is  not  per  se  proof  that  there  has  been  a 
denial  of  the  equal  protection  of  the  laws  as  to  those  persons  who  have  been 
compelled  to  pay  the  taxes  lawfully  assessed  against  them.--*'' 


definition  on  the  subject  that  would  in- 
clude all  cases.  They  must  be  decided  as 
they  arise."  Southwestern  Oil  Co.  v. 
Texas,  217  U.  S.  114,  54  L.  Ed.  688,  30  S. 
Ct.  496;  Quong  Wing  v.  Kirkendall,  223 
U.  S.  59,  56  L.   Ed.  350,  32  S.   Ct.  192. 

There  can  be  no  arbitrary  and  unreason- 
able discimination.  But  when  there  is  a 
difference,  it  need  not  be  great  or  con- 
spicuous in  ord^r  to  warrant  classification. 
Keeney  v.  Comptroller,  222  U.  S.  525,  56 
L.   Ed.  299,  32   S.   Ct.   105. 

Assessing  the  franchises  and  other 
property  of  certain  corporations  at  a  dif- 
ferent rate  and  by  different  method  from 
that  employed  for  other  corporations  of 
the  same  class  for  the  same  year,  which 
results  in  enormous  disparity  and  dis- 
crimination, denies  the  equal  protection 
of  the  law  protected  by  Const.  U.  S. 
Amend.  14,  against  impairment  by  a  state. 
Judgment,  Chicago  Union  Traction  Co.  7'. 
State  Board  of  Equalization  (C.  C.  1902), 
114  F.  557;  Chicago  Consol.  Traction  Co. 
V.  Same,  Id.;  South  Chicago  City  Ry.  Co. 
V.  Baird,  Id.;  Chicago  Edison  Co.  v.  Ray- 
mond, Id.;  Chicago  City  Ry.  Co.  v.  Same, 
Id.;  People's  Gas  Light  &  Coke  Co.  v. 
Same,  Id.;  Chicago  Telephone  Co.  v. 
Same,  Id.,  affirmed.  Raymond  v.  Chicago 
Union  Tract.  Co.,  207  U.  S.  20,  52  L.  Ed. 
78,  28  S.  Ct.  7;  Raymond  z'.  Chicago  Edi- 
son Co.,  207  U.  S.  42,  52  L.  Ed.  89,  28  S. 
Ct.  14. 

403-18.  State  permitted  a  wide  discre- 
tion.— The  power  of  the  state  in  respect 
to  the  matter  of  taxation  is  very  broad,  at 
least,  so  far  as  the  federal  constitution  is 
concerned.  It  may  exempt  certain  prop- 
erty from  taxation  while  all  other  is  sub- 
jected thereto.  It  may  tax  one  class  of 
property  by  one  method  of  procedure  and 
another  by  a  different  method.  Beers  7'. 
Glynn.  211  U.  S.  477,  53  L.  Ed.  290,  29  S. 
Ct.  186;  Bell's  Gap  R.  Co.  v.  Pennsylvania, 
134  U.  S.  232,  238.  33  L.  Ed.  892,  10  S- 
Ct.   533. 

The  state  is  permitted  a  very  w'de  dis- 
cretion with  respect  to  the  classification 
of  business,  trades,  professions,  and  oc- 
cupations for  the  purpose  of  taxation. 
Brown-Forman  Co.  v.  Kentucky,  217  U. 
S.  563,  54  L.  Ed.  883,  30  S.  Ct.  578. 

403-19.  Statute  not  invalid  because  of 
mere  inequality  of  results. — It  may  be 
laid  down  as  a  general  rule  that  mere  in- 


equalitie*  or  exemptions  in  the  matter  of 
state  taxation  are  not  forbidden  by  the 
federal  constitution.  Beers  t'.  Glynn,  211 
U.   S.  477,  53  L.   Ed.  290,  29   S.   Ct.  186. 

You  can  not  carry  a  constitution  out 
with  mathematical  nicety  to  logical  ex- 
tremes. If  you  could,  we  never  should 
have  heard  of  the  police  power,  and  this 
is  still  more  true  of  taxation,  which  in 
most  communities  is  a  long  way  off  from 
a  logical  and  coherent  theory.  Paddell  v. 
New  York,  211  U.  S.  446,  450,  53  L.  Ed. 
275,  29  S.  Ct.  139. 

404-24.  Applies  to  benefits  as  well  as 
burdens. — The  legality  of  a  tax  is  not  to 
he.  measured  by  the  benefit  received  by 
the  taxpayer,  although  equality  of  bur- 
dens be  the  general  standard  sought  to  be 
attained.  Protection  and  taxation  are  not 
necessarily  correlative  obligations,  nor 
precise  equality  of  burden  attainable, 
however  desirable.  The  taxing  power  is 
one  which  inay  be  interfered  with  upon 
grounds  of  unjustness  only  when  there 
has  been  such  flagrant  abuse  as  may  be 
remedied  by  some  affirmative  principle  of 
constitutional  law.  Southern  Pac.  Co.  v. 
Commonwealth,  222  U.  S.  63,  56  L.  Ed. 
96,  32   S.   Ct.   13. 

404-24a.  Failure  to  enforce  law  as  to 
other  taxpayers. — Illinois  Cent.  R.  Co.  f. 
Kentucky,  218  U.  S.  551,  54  L.  Ed.  1147, 
31    S.    Ct.    95. 

The  contention  of  a  railroad  company 
that  it  has  been  denied  equal  protection 
of  the  laws  because  of  the  fact  that  other 
railroad  corporations  in  the  state  have  not 
been  assessed  upon  the  same  basis  or  by 
the  same  method,  is  rot  sustained  by 
proof  which  fails  to  show  any  discrimina- 
tion in  the  method  or  basis  of  assess- 
ment, as  claimed  by  the  company,  but 
which  does  show  that  other  roads  of  the 
state  have  succeeded  in  escaping  or  evad- 
ing the  taxes  to  which  they  were  justly 
subject.  That  some  roads  have  thus  suc- 
ceeded in  escaping  taxation  is  no  reason 
that  others  should  go  free  while  other 
taxpayers  of  other  classes  have  paid  their 
taxes,  especially  so  when  the  other  roads 
which  have  escaped  are  still  liable  for 
their  taxes  unless  barred  by  the  statute  of 
limitations.  Illinois  Cent.  R.  Co.  v.  Ken- 
tucky, 218  U.  S.  551,  54  L.  Ed.  1147,  31 
S.  Ct.  95. 


340 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


404 


g.  Special  Assessments — (Ij  Generally  as  to  the  Pozver  of  the  Legislature 
to  Apportion  Public  Burdens. — See  note  25. 

(2)  Requiring  Public  Service  Companies  to  Bear  Expense  Incident  to  Abo- 
lition of  Crossings,  Removal  of  Tracks,  Pipes,  etc. — See  post,  Interstate  and 
Foreign  Commerce;    Police  Power. 

G.  Special,  Private  and  Local  Acts;  Class  Legislation — 2.  Special 
AND  Exclusive  Franchises,  Powers  and  Privileges — d.  Prohibition  Con- 
tained in  Organic  Act  of  Territory. — See  ante,  "Powers  of  Territorial  Govern- 
ments," VI,  D,  2,  c,  (3),   (c),  (cc),  (bbb),  (dddd). 

Vin.  Vested  Rights  and  Retrospective  Legislation. 

A.  What  Rights  Are  Vested — I.  Title  to  Public  Office  and  the  Emol- 
uments Thereof. — See,  generally,  post.  Impairment  of  Obligation  of  Con- 
tracts; Public  Officers.  As  to  private  property  in  public  office  lawfully  pur- 
chased in  Porto  Rico  or  the  Philippines  prior  to  their  cession  to  the  United 
States,  see  ante,  "As  to  Private,  Personal,  and  Property  Rights ;  Continuation 
of  Existing  Laws,"  Nl.  D,  2.  c,  (3),  (c),  (bb),  faaa). 


404-25.  Apportionment  of  public  bur- 
dens— Powers  of  legislature. — The  four- 
teenth amendment  docs  not  deprive  a  state 
of  the  power  to  compel  a  tov/nship,  as  one 
of  its  political  subdivisions,  to  levy  and 
collect  taxes  for  the  purpose  of  paying: 
the  amount  assessed  against  such  town- 
ship for  the  public  benefits  accruing  for 
the  construction  of  a  drain.  Soliah  z\ 
Heskin,  222  U.  S.  522,  56  L.  Ed.  294,  32 
S.  Ct.  10.3;  Bauman  v.  Ross,  167  U.  S.  548, 
593,  42  L.  Ed.  270,  17  S.  Ct.  966;  County 
of  Mobile  v.  Kimball,  102  U.  S.  691,  704. 
26   L.    Ed.   238. 

Taxing  districts — Adjustment  of  bur- 
dens between  abutting  and  nonabutting 
property. — The  equal  protection  of  the 
law  is  not  denied  to  the  owner  of  prop- 
erty lying  directly  back  of  property 
abutting  on  a  street  improvement  by  a 
law  creating  a  taxing  district  of  the  prop- 
erty along  the  line  of  the  iinprovement 
and  extending  back  therefrom  150  feet  and 
providing  that  property  50  or  more  feet 
distant  from  the  street  and  within  150  feet 
therefrom  shall  be  liable  if  the  abutting 
50  feet  which  are  primarily  liable  prove 
insufficient  to  pay  the  cost  of  the  improve- 
ments. Judgment,  74  N.  E.  260.  38  Ind. 
App.  220,  affirmed.  Cleveland,  etc.,  R.  Co. 
V.  Porter.  210  U.  S.  177,  52  L.  Ed.  1012,  28 
S.  Ct.  647. 

Manner  of  enforcing  special  assessment 
— Destruction  between  residents  and  non- 
residents.— The  distinction  between  resi- 
dent and  nonresident  owners  of  abutting 
property  in  Act  May  19.  1896.  29  Stat.  125, 
c.  206,  creating  a  drainage  sj^stem  for  the 
District  of  Columbia,  in  that  the  coercion 
of  the  law  as  to  making  connections  with 
a  sewer  is  by  criminal  punishment  in  the 
case  of  residents,  whereas,  against  non- 
resident owners,  the  district  does  the 
work  in  case  of  their  neglect,  and  as- 
sesses the  cost  against  the  property  as  a 
tax,    does    not    invalidate    the    statute    for 


discrimination,  even  if  congress  can  not 
enact  discriminating  legislation.  District 
of  Columbia  z:  Brooke,  214  U.  S.  138,  53 
L.  Ed.  941,  29  S.  Ct.  560,  reversed  in  29 
App.    D.    C.    563. 

The  statute  under  consideration  in  the 
case  at  bar  enjoins  a  duty  on  both  resi- 
dent and  nonresident  lot  owners;  a  duty 
necessary  to  be  followed  to  preserve  the 
health  of  the  city.  There  is  a  difference 
only  in  the  manner  of  enforcing  it.  a  dif- 
ference arising  from  the  different  situa- 
tion of  the  lot  owners,  and  therefore 
competent  for  congress  to  regard  in  its 
legislation.  In  other  words,  under  the 
circumstances  presented  by  this  record, 
the  distinction  between  residents  and  non- 
residents is  a  proper  basis  for  classifica- 
tion. It  might  not  be  under  other  circum- 
stances. District  of  Columbia  z:  Brooke. 
214  U.  S.  138,  53  L.  Ed.  941,  29  S.  Ct.  560; 
Blake  v.  McClung,  172  U.  S.  239,  43  L. 
Ed.  432.  19  S.  Ct.  165;  S.  C.  176  U.  S.  59, 
44  L.  Ed.  371.  20  S  Ct.  307;  Sully  z: 
American  Nat.  Bank,  178  U.  S.  289.  44 
L.  Ed.  1072.  20  S.  Ct.  935. _ 

Same — Notice  and  hearing. — An  owner 
of  property  lying  directly  back  of  property 
abutting  on  a  street  improvement  can  not 
claim  to  be  denied  the  equal  protection  of 
the  laws  guaranteed  by  Const.  U.  S. 
Amend.  14,  on  the  theory  that  the  hear- 
ing afforded  him  does  not.  as  in  the  case 
of  abutting  owners,  give  him  an  oppor- 
tunity to  be  heard  as  to  the  amount  of 
the  assessment  against  his  property, 
where  the  amount  of  such  assessment  is 
the  same  as  the  assessment  against  the 
abutting  property,  and  measures  the  con- 
tingent liability  to  which  the  back-lying 
property  may  be  subjected  if  the  abutting 
property,  which  is  made  primarily  liable. 
fails  to  satisfy  the  assessment.  Judgment 
in  74  N.  E.  260.  38  Tnd.  App.  226,  affirmed. 
Cleveland,  etc..  R.  Co.  v.  Porter.  210  U.  S. 
177,  52  L.  Ed.  1012.  28  S.  Ct.  647. 


341 


417 


CONSTITUTIONAL  LAIV. 


\o\.  IV 


5.    Vested  Rights  under  Treaties. — See  note  66. 


417-66.  Embraces  only  rights  of  prop- 
erty— ^Property  and  citizenship  in  Indian 
tribes.— See,  also,  post,  DUE  PROCESS 
OF  LAW;  INDIANS. 

There  are  many  cases,  Thomas  v.  Gay, 
169  U.  S.  264,  271,  42  L.  Ed.  740,  18  S.  Ct. 
340;  Lone  Wolf  v.  Hitchcock,  187  U.  S. 
553,  47  L.  Ed.  299,  23  S.  Ct.  216,  recogniz- 
ing that  the  plenary  power  of  congress 
over  the  Indian  Tribes  and  tribal  prop- 
erty can  not  be  limited  by  treaties  so  as 
to  prevent  repeal  or  amendment  by  a 
later  statute.  The  tribes  have  been  re- 
garded as  dependent  nations,  and  treaties 
with  them  have  been  looked  upon  not  as 
contracts,  but  as  public  laws  which  could 
lie  abrogated  at  the  will  of  the  United 
States.  Choate  v.  Trapp,  224  U.  S.  665, 
56  L.  Ed.  941,  32  S.  Ct.  565;  Gleason  v. 
Wood,  224  U.  S.  679,  56  L.  Ed.  947,  32  S. 
Ct.  571. 

But  there  is  a  broad  distinction  between 
tribal  property  and  private  property,  and 
l)etween  the  power  to  abrogate  a  statute 
or  treaty  and  the  authority  to  destroy 
rights  acquired  under  such  law.  Choate  v. 
Tn-ipp,  224  U.  S.  665,  56  L.  Ed.  941,  32  S. 
Ct.  565;  Gleason  v.  Wood,  224  U.  S.  679. 
56  L.  Ed.  947,  32  S.  Ct.  571;  Reichart  v. 
Felps,  6  Wall.  160,  18  L.  Ed.  849. 

For  example,  where  the  Indians,  as  in- 
dividuals, have  acquired  vested  property 
rights,  or  a  vested  right  to  an  exemption 
from  taxation,  under  a  treaty  entered  into 
by  their  tribe  and  under  the  acts  of  con- 
gress enacted  pursuant  thereto,  such 
rights  are  entitled  to  the  protection  of  the 
constitutional  guaranties  of  property  the 
same  as  those  of  citizens  of  the  states  or 
of  the  United  States.  Choate  v.  Trapp, 
224  U.  S.  665,  56  L.  Ed.  941,  32  S.  Ct.  565. 
See,  also,  English  v.  Richardson,  224  U.  S. 
680.   56   L.   Ed.  949,   32   S.   Ct.   571. 

There  have  been  comparatively  few 
cases  which  discuss  the  legislative  power 
over  private  property  held  by  the  Indians. 
But  those  few  all  recognize  that  he  is  not 
excepted  from  the  protection  guaranteed 
by  the  constitution.  His  private  rights 
are  secured  and  enforced  to  the  same  ex- 
tent and  in  the  same  way  as  other  resi- 
dents or  citizens  of  the  United  States. 
Choate  v.  Trapp,  224  U.  S.  665,  56  L.  Ed. 
941,  32  S.  Ct.  565;  Gleason  v.  Wood,  224 
U.  S.  679,  56  L.  Ed.  947.  32  S.  Ct.  571; 
Matter  of  Heflf,  197  U.  S.  488,  504,  49  L. 
Ed.  848,  25  S.  Ct.  506;  Cherokee  Nation 
V.  Hitchcock,  187  U.  S.  294,  307,  47  L.  Ed. 
183.  23   S.   Ct.   115. 

Vested  rights  of  members  of  the  Chero- 
kee tribe  living  on  September  1,  1902,  and 
enrolled  under  the  Act  of  July  1,  1902,  to 
participate  in  the  allotment  and  distribu- 
tion of  the  remaining  tribal  lands  and 
funds,  were  not  destroyed,  their  individual 
allotments  not  being  affected,  by  the  pro- 


vision of  the  Act  of  April  26,  1906,  §  2,  as 
amended  by  the  Act  of  June  21,  1906,  for 
admitting  newly  born  members  of  the 
tribe  to  the  earlier  act  if  born  after  Sep- 
tember 1,  1902.  Gritts  V.  Fisher,  224  U. 
S.   640,  56  L.   Ed.  928,  32  S.   Ct.   580. 

The  difficulty  with  the  appellant's  con- 
tention is  that  it  treats  the  Act  of  1902 
as  a  contract,  when  "it  is  only  an  act  of 
congress,  and  can  have  no  greater  effect." 
Cherokee  Intermarriage  Cases,  203  U.  S. 
76,  93,  51  L.  Ed.  96,  27  S.  Ct.  29.  It  was 
but  an  exertion  of  the  administrative  con- 
trol of  the  government  over  the  tribal 
property  of  tribal  Indians,  and  was  sub- 
ject to  change  by  congress  at  any  time 
before  it  was  carried  into  effect  and  while 
the  tribal  relations  continued.  Stephens  v. 
Cherokee  Nation,  174  U.  S.  445,  488,  43  L. 
Ed.  1041,  19  S.  Ct.  722;  Cherokee  Nation 
V.  Hitchcock,  187  U.  S.  294,  47  L.  Ed. 
183,  23  S.  Ct.  115;  Wallace  v.  Adams,  204 
U.  S.  415,  423,  51  L.  Ed.  547,  27  S.  Ct.  363; 
Gritts  V.  Fisher,  224  U.  S.  640,  56  L.  Ed. 
928,  32  S.  Ct.  580. 

Where,  under  the  provision  of  acts-  of 
congress,  and  after  a  hearing,  the  names 
of  relators  were  duly  entered  as  Creek 
freedmen  by  blood  on  the  rolls  made  and 
approved  by  the  secretary  of  the-  interior, 
rights  were  acquired  of  which  the  freed- 
men could  not  be  deprived  without  that 
character  of  notice  and  opportunity  to  be 
heard  essential  to  due  process  of  law. 
Turner  v.  Fisher,  222  U.  S.  204,  56  L.  Ed. 
165,  32  S.  Ct.  37;  Garfield  v.  Goldsby,  211 
U.  S.  249,  53  L.  Ed.  168,  29  S.  Ct.  62. 

Notice  to  the  attorney  of  such  freed- 
men, given  a  few  hours  before  the  hear- 
ing of  a  motion  to  strike  names,  on  the 
ground  that  their  enrollment  had  been 
secured  by  perjury,  was  not  such  notice 
as  afforded  due  process.  Turner  v. 
Fisher,  222  U.  S.  204,  56  L.  Ed.  165,  32  S. 
Ct.  37;  Roller  v.  Holly,  176  U.  S.  398, 
409,  44  L.  Ed.  520,  20  S.  Ct.  410;  Hagar  v. 
Reclamation  Dist.  No.  108,  111  U.  S.  701, 
708.  28  L.  Ed.  569,  4  S.  Ct.  663;  Iowa  Cent. 
R.  Co.  V.  Iowa,  160  U.  S.  389,  393,  40  L. 
Ed.  467,  16  S.  Ct.  344;  Hovev  v.  Elliott, 
167  U.  S.  409,  42  L.  Ed.  215,  17  S.  Ct.  841. 

Where,  pursuant  to  the  act  of  congress, 
the  name  of  an  Indian  -has  been  certified 
by  the  Dawes  commission  to  the  secre- 
tary of  the  interior  as  one  found  by  the 
commission  to  be  entitled  to  enrollment 
for  distribution,  and  such  list  has  been  ap- 
proved by  the  secretary  of  the  interior 
and  the  roll  made  up  and  distributed,  as 
required  by  statute,  the  land  allotted,  and 
a  certificate  therefor  awarded  to  such  en- 
rolled Indian,  as  provided  by  Act,  §  23, 
July  1.  1902,  such  Indian  has  acquired  a 
valuable  right,  and  the  secretary  of  the  in- 
terior has  no  power  or  authority  to  strike 
down    without    notice    and     hearing,      the 


342 


\'ol.  IV 


CONSrirUTlOXAL  LAW. 


417-423 


6.    Vested  Rights  in  Rule  or  Policy  of  Law. — See  note  67. 

11.  Rights  under  Corporate  Charters — a.  Generally;  Charter  a  Contract. 
— See,  generally,  post,  Corporations;  Impairment  of' Obligation  of  Con- 
tracts. 

b.  Charter  Rights  Subject  to  Police  Pozvers. — See,  generally,  as  to  the  po- 
lice powers  of  the  state  with  respect  to  charter  and  contract  rights,  post,  Po- 
lice Power. 

Reorganization  of  Insurance  Company. — As  to  the  right  of  the  state  to 
reorganize  an  association  insuring  lives  upon  the  co-operative  plan  into  a  mutual 
level  premium  company,  see  post.  Police  Power. 

12.  Same — Franchises  and  Privileges. — See  note  89. 


rights  thus  acquired  by  striking  such  a 
name  from  the  rolls.  Such  action  is  with- 
out due  process  of  law,  and  mandamus 
will  lie  to  compel  restoration  of  the  name. 
Garfield  v.  Goldsby,  211  U.  S.  249,  53  L- 
Ed.  168.  29  S.  Ct.  62;  Garfield  v.  Allison, 
211  U.  S.  264,  53  L.   Ed.   176,  29   S.  Ct.  67. 

As  has  been  affirmed  by  the  federal  su- 
preme court  in  former  decisions  there  is 
no  place  in  our  constitutional  system  for 
the  exercise  of  arbitrary  power,  and  if  the 
secretary  of  the  interior,  in  striking  from 
the  roll  Indians  found  by  the  Dawes  com- 
mission to  be  entitled  to  distribution  has 
exceeded  the  authority  conferred  upon 
him  by  law,  then  there  is  power  in  the 
courts  to  restore  the  status  of  the  parties 
aggrieved  by  such  unwarranted  action. 
Garfield  v.  Goldsby,  211  U.  S.  249,  262,  53 
L.  Ed.  168.  29  S.  Ct.  62,  citing  Garfield  v. 
Allison,  211  U.  S.  264,  53  L.  Ed.  176,  29 
S.    Ct.   67. 

Same — Property  in  public  oflfice. — As  to 
private  property  in  public  ofiice  lawfully 
purchased  in  Porto  Rico  or  the  Philip- 
pines prior  to  their  cession  to  t'ne  United 
States,  see  ante,  "As  to  Private,  Personal, 
and  Propertv  Rights ;  Continuation  of  Ex- 
isting Laws',"  VI,  D,  2,  c,  (3),  (c),  (bb). 
(aaa). 

417-67.  Vested  right  in  rule  or  policy 
of  law. — "A  person  has  no  property,  no 
vested  interest,  in  any  rule  of  the  com- 
mon law.  That  is  only  one  of  the  forms 
of  municipal  law,  and  is  no  more  sacred 
than  any  other.  Rights  of  property  which 
have  been  created  by  the  common  law 
can  not  be  taken  away  without  due  proc- 
ess; but  the  law  itself,  as  a  rule  of  con- 
duct, may  be  changed  at  the  will  *  *  * 
of  the  legislature,  unless  prevented  by  the 
constitutional  limitations.  Indeed,  the 
great  office  of  statutes  is  to  remedy  de- 
fects in  the  common  law  as  they  are 
developed,  and  to  adapt  it  to  the  changes 
of  time  and  circumstances."  Second  Em- 
ployers' Liability  Cases,  223  U.  S.  1,  56 
L.  Ed.  327,  32  S.  Ct.  169;  Munn  v.  Illinois, 
94  U.  S.  113,  134,  24  L.  Ed.  77;  Martin  v. 
Pittsburg,  etc.,  R.  Co..  203  U.  S.  284,  294, 
51  L.  Ed.  184,  27  S.  Ct.  100;  The  Lotta- 
wanna,  21  Wall.  558,  577,  22  L.  Ed.  654: 
Western    Union    Tel.    Co.    t'.    Commercial 


Milling  Co..  218  U.  S.  406.  417,  54  L.  Ed. 
1088,  31  S.   Ct.  59. 

Change  in  rule  or  policy  of  law  as  af- 
fecting existing  contracts. — See.  generally, 
post,  IMPAIRMENT  OF  OBLIGATION 
OF  CONTRACTS;  INTERSTATE  AND 
FOREIGN  COMMERCE;  POLICE 
POWER;  DUE  PROCESS  OF  LAW. 

As  to  vested  rights  under  contract  for 
rebates,  and  power  of  congress  to  outlaw 
and  prohibit  the  carrying  out  of  such 
agreements,  see  post,  INTERSTATE 
AND  FOREIGN  COMMERCE.  (Treat 
whole    subject   there.) 

Policy  as  to  trade  with  foreign  coun- 
tries.—See     post,     INTERSTATE     AND 

FOREIGN  Commerce. 

Laws  respecting  rights  of  action  and 
defenses,  including  actionable  wrongs,  re- 
covery of  damages,  and  defenses  thereto. 

— See  post.  "Laws  Affecting  Rights  of 
Action  and  Defenses,"  VIII,  C,  11. 

As  to  statute  abolishing  the  doctrine  of 
fellow  servants,  see  post,  FELLOW 
SERVANTS;  INTERSTATE  AND  FOR- 
EIGN COMMERCE;  POLICE  POWER. 
See,  also,  ante,  "Abolishing  the  Doctrine 
of  Fellow  Servants,"  VII,  B,  3,  i;  and 
post,  "Defenses,"  VIII.  C,  11.  b. 

As  to  statutes  abolishing  the  doctrines 
of  comparative  and  contributory  negli- 
gence, see  post,  MASTER  AND  SERV- 
ANT; POLICE  POWER.  See,  also,  ante, 
"Abolishing  the  Doctrine  of  Comparative 
and    Contributory     Negligence,"     VII,    B, 

3.    \V2. 

423-89.  Franchises  are  property — Special 
and   exclusive   franchises   inviolable. — The 

charter  right  of  a  telephone  company  to 
use  the  streets  of  a  city  for  the  purposes 
necessary  in  constructing  a  telephone 
business,  is  a  franchise,  and  whether  it  is 
called  an  incorporeal  hereditament,  an  in- 
terest in  landj  an  easement,  a  right  of  way, 
or  hov/ever  designated,  it  is  property  and 
a  vested  right.  Louisville  v.  Cumberland 
Tel.,  etc.,  Co.,  224  U.  S.  649,  56  L.  Ed.  934, 
32  S.  Ct.  572.  Citing  Detroit  v.  Detroit, 
etc.,  St.  R.  Co..  184  U.  S.  368,  394,  46  L. 
Ed.  610,  22  S.  Ct.  410;  West  River  Bridge 
Co.  V.  Dix,  6  How.  507,  534,  12  L.  Ed.  535. 

The  assent  of  the  municipality,  when 
once  given,  conformably  to  the  charter  of 


343 


428 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


18.  Property  Rights  Jure  Maritii. — See  note  5. 

19.  Right  to  Dispose  of  Property  by  Wile;  Rights  of  Heirs,  Devisees, 
ETC. — See  notes   6,  7,  11. 


a  telephone  company,  empowering  said 
company,  by  and  with  the  consent  of  the 
city  council,  to  construct  and  maintain  a 
telephone  system  in  the  city,  perfects  the 
company's  franchise,  which  thereby  be- 
comes a  vested  contract  and  property 
rig-ht  under  legislative  grant,  and  not  un- 
der license  from  the  city.  It  is  not  com- 
petent, therefore,  for  the  city,  by  ordi- 
nance, to  impair  such  contract  nor  revoke 
the  rights  conferred.  Louisville  v.  Cum- 
berland Tel.,  etc.,  Co.,  224  U.  S.  649,  56  L. 
Ed.  934,  32  S.  Ct.  572. 

Where  a  public  utility  company,  such 
as  a  telephone  company,  operating  under 
a  perpetual  charter,  receives  from  the  leg- 
islature the  grant  of  a  franchise  to  con- 
struct and  maintain  its  system  and  to  use 
the  streets  of  the  city,  and  such  grant  is 
not,  by  its  terms,  limited  and  revocable, 
the  grant  is  in  fee.  Louisville  v.  Cumber- 
land Tel.,  etc.,  Co.,  224  U.  S.  649,  56  L.  Ed. 
934.  32  S.  Ct.  572,  quoting  Detroit  v.  De- 
troit, etc.,  St.  R.  Co.,  184  U.  S.  368,  395,  46 
L.  Ed.  610,  22  S.  Ct.  410. 

The  right  to  use  the  city  streets  for  tele- 
phone purposes,  acquired  by  a  telephone 
company  conformably  to  its  charter,  by 
which  it  was  empowered,  with  and  by  the 
consent  of  the  city  council,  to  construct 
and  maintain  a  telephone  system  in  Louis- 
ville, Kentucky,  was  not  withdrawn  or 
made  subject  to  municipal  revocation  by 
Ky.  Const.  1891,  §§  156,  163,  164,  199,  or 
Ky.  Stat.,  §§  2742,  2783,  2825,  conferring 
upon  municipalities  the  right  to  grant 
street  franchises,  or  by  Ky.  Stat.,  §  573, 
enacted  under  the  reserve  power,  repeal- 
ing all  special  corporate  privileges,  since 
such  repeal  relates  to  exclusive  grants,  tax 
exemptions,  monopolies,  and  similar  im- 
munities, and  the  other  provisions  are  in 
the_  main  prospective,  the  constitution, 
while  limiting  for  the  future  the  power  to 
sell  street  franchises,  distinctly  protecting 
the  interests  of  those  public-utility  com- 
panies whose  charters  had  been  thereto- 
fore granted  conferring  such  rights,  where 
work  had  in  good  faith  been  begun  there- 
under. Louisville  v.  Cumberland  Tel,  etc., 
Co.,  224  U.  S.  649,  56  L.  Ed.  934,  32  S.  Ct.  ' 
572. 

The  right  to  use  the  city  streets  for 
telephone  purposes,  acquired  under  the 
perpetual  charter  of  a  telephone  com- 
pany, empowering  it,  with  and  by  the 
consent  of  the  city  council,  to  construct 
and  maintain  a  telephone  system  in  Louis- 
ville, Kentuck}',  was  not  revocable  by 
the  city  at  will,  and  did  not  expire  when, 
by  Ky.  Stat.,  §  2742,  Louisville  was  made 
a  city  of  the  first  class,  with  new  and  en- 
larged powers.     Louisville  v.  Cumberland 


Tel.,  etc.,  Co.,  224  U.  S.  649,  56  L.  Ed.  934, 
32    S.    Ct.    572. 

Franchise  or  contract  rights  of  street 
railway  under  ordinance  or  charter — As 
to  rates.— See  post,  IMPAIRMENT  OF 
OBLIGATION  OF  CONTRACTS;  PO- 
LICE POWER. 

Same — Disposition  of  property  after 
cessation  of  use  or  expiration  of  charter, 
or  franchise.— See  post,  DUE  PROCESS 
OF  LAW.  '^ 

428-5.  Rights  jure  maritii — Community 
interests — State  law. — A  husband  had  no 
vested  rights  in  the  community  property 
acquired  prior  to  the  passage  of  Laws  N. 
M.  1901,  c.  62,  §  6  (a),  of  which  he  would 
be  deprived  by  applying  to  such  property 
the  provision  of  that  section  that  neither 
husband  nor  wife  shall  dispose  of  real  es- 
tate acquired  during  coverture  by  oner- 
ous title  unless  both  join  in  the  execution 
of  the  deed.  Arnett  v.  Reade,  220  U.  S. 
311,  55  L.  Ed.  477,  31  S.  Ct.  425,  reversing 
judgment  Reade  v.  De  Lea  (1908)  95  P. 
131,   14   N.   M.   442. 

There  was  some  suggestion  at  the  argu- 
ment that  the  husband  acquired  from  his 
marriage  rights  by  contract  that  could 
not  be  impaired,  but  the  court  held  that 
there  was  nothing  in  that,  even  if  it  had 
appeared,  as  it  did  not,  that  the  parties 
were  married  in  New  Mexico,  then  being 
domiciled  there.  Arnett  v.  Reade,  220  U. 
S.  311,  55  L.  Ed.  477,  31  S.  Ct.  425;  May- 
nard  v.  Hill,  125  U.  S.  190,  210,  31  L.  Ed. 
654,  8  S.  Ct.  723;  Baker  v.  Kilgore,  145 
U.   vS.  487,  491,  36  L.   Ed.  786,  12  S.  Ct.  943. 

Right  to  impose  tax  upon  right  of  sur- 
viving wife  to  take  community  property, 
— See  ante,  "Permits  Classification  and 
Diversity  in  Taxation,"  VII,  B,  5,  d.  See, 
also,  the  titles  IMPAIRMENT  OF  OB- 
LIGATION OF  CONTRACTS;  TAXA- 
TION. 

428-6.  Right  to  disprove  of  property  by 
will,  deed  taking  effect  at  death — Right  to 
create  artificial  and  technical  estates  and 
limitations. — There  is  no  natural  right  to 
create  artificial  and  technical  estates  with 
limitations  over,  nor  has  the  remainder- 
man any  more  right  to  succeed  to  the 
possession  of  property  under  such  deeds 
than  legatees  and  devisees  under  a  will. 
The  privilege  of  acquiring  property  by 
such  an  instrument  is  as  much  dependent 
upon  the  law  as  that  of  acquiring  prop- 
erty by  inheritance,  and  transfers  by 
deed  to  take  effect  at  death  have  fre- 
quently been  classed  with  death  duties, 
legacy  and  inheritance  taxes.  Keeney  v. 
Comptroller,  222  U.  S.  525,  56  L.  Ed.  299, 
32   S.   Ct.   105. 

428-7.  Right  to  take  by  devise  or  de- 
scent.— Whatever     title     heirs     may     take 


344 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


429-438 


21.  Interest  or  Estate  in  Profession  or  Occupation. — See  post,  Po- 
lice Power. 

26.  Riparian  Rights. — See  ante,  "Local  Municipal  Jurisdiction,  Sovereignty 
and  Eminent  Domain,"  VI,  D,  3,  c,  (4),  (b).  See,  also,  post,  DuE  Process  of 
Law  ;  Police  Power  ;  Navigable  Waters  ;  Waters  and  Watercourses. 

27.  Vested  Rights  under  Contracts. — See,  generally,  post.  Impairment  of 
Obligation  of  Contracts  ;  Police  Power. 

Statutes  Regulating  Commerce  as  Affecting  Existing  Contracts. — As 
to  the  power  of  congress  to  prescribe,  as  is  done  by  the  employer's  liability  act 
of  April  22,  1908  (35  Stat,  at  L.  65,  chap.  149,  U.  S.  Comp.  Stat.  Supp.  1911,  p. 
1322),  §  5,  that  the  occupation  of  benefits  under  a  contract  of  membership  in  a 
railway  relief  department  shall  not  operate  as  a  bar  to  the  recovery  of  damages 
for  the  injury  or  death  of  any  employee,  and  to  avoid  any  agreement  to  that  ef- 
fect, see  post.  Interstate  and  Foreign  Commerce.  As  to  the  power  of  con- 
gress to  outlaw  and  prevent  the  carrying  out  of  contracts  for  rebates  entered  into 
previous  to  the  enactment  of  the  statute,  see  post.  Interstate  and  Foreign  Com- 
merce. 

28.  Citizenship  as  a  Vested  Right. — See  ante,  "Vested  Rights  under 
Treaties,"  VIII,  A,  5.  As  to  the  power  of  congress  to  provide  for  the  impeach- 
ment of  fraudulent  judgments  awarding  certificate  of  naturalization,  see  ante, 
"Statute  Amending,  Overruling,  or  Setting  Aside  Judgment  or  Decree,"  VI,  D^ 
3,  d,  (3),  (b),  (bb),  (aaa),  (eeee)  ;  "Vested  Rights  under  Judgments  and  De- 
crees," VIII,  C,  12.     See,  generally,  ante.  Citizenship,  p.  235. 

C.  What  Constitutes  Impairment  of  Vested  Rights — 2.  Impairment  by 
Legislatwe  Construction  of  Statutes. — See  note  41. 

8.    Retrospective  Tax  Laws  ;  Collection  of  Back  Taxes. — See  note  56. 

11.  Laws  Affecting  Rights  of  Action  and  Defenses — a.  Rights  of  Action, 
— See,  generally,  post.  Due  Process  of  Law;  Police  Power.  See,  also,  ante,. 
"Actions  for  Injuries  to  Person  or  Property,"  VI,  D,  3,  c,  (4),  (g). 


upon  the  death  of  their  ancestor,  they 
take  by  virtue  of  the  state  law,  and  it  is 
for  the  courts  of  the  state  to  interpret 
that  law  and  define  that  title.  It  is  for 
the  courts  of  the  state  to  say  whether 
the  state  law  has  cast  upon  them  such 
a  title  to  mortgaged  property  as  to  re- 
quire that  they  should  be  made  parties 
to  a  foreclosure  procedure  against  the 
personal  representative  and  be  given 
notice  and  opportunity  to  be  heard,  and 
their  decision  that  they  acquired  no  such 
title  or  estate  will  not  be  reviewed  by  the 
federal  supreme  court.  McCaughey  v. 
Lyall.  224  U.  S.  558,  56  L.  Ed.  883,  32  S. 
Ct.  602. 

Construing  Cal.  Code  Civ.  Proc,  §  1582, 
to  mean  that  the  heirs  are  not  necessary 
parties  to  a  suit  against  the  administra- 
trix to  foreclose  a  mortgage  executed  by 
the  decedent,  does  not  deprive  such  heirs, 
without  due  process  of  law,  of  the  title 
which  Cal.  Civ.  Code,  §  1384,  casts  upon 
them  upon  the  death  of  their  ancestor. 
McCaughey  v.  Lyall,  224  U.  S.  558,  56  L. 
Ed.   883,   32    S.    Ct.    602. 

429-11.  Inheritance  and  legacy  taxes. 
— Property  is  not  taken  without  due  proc- 
ess of  law,  contrary  to  Const.  U.  S. 
Amend.  14,  by  the  imposition  of  the  tax 
authorized    by    Laws    N.    Y.    1896,    c.    908, 


when  property  is  transferred  by  deed  in- 
tended to  take  effect  upon  the  death  of 
the  grantor.  Keeney  v.  Comptroller,  222 
U.  S.  525,  56  L.  Ed.  299,  32  S.  Ct.  105, 
affirming  judgment  (1909)  In  re  Keeney's 
Estate,  87  N.  E.  428,  194  N.  Y.  281.  See, 
also,  ante,  "Permits  Classification  and  Di- 
versity in  Taxation,"  VII,  B,  5,  d. 

435-41.  Impairment  by  legislative  con- 
struction of  statutes. — When  several  acts 
of  congress  are  passed,  touching  the  same 
subject  matter,  subsequent  legislation 
may  be  considered  as  an  aid  to  the  inter- 
pretation of  prior  legislation  upon  the 
same  subject.  Tiger  v.  Western  Invest. 
Co.,  221  U.  S.  286,  55  L.  Ed.  738,  31  S.  Ct. 
578;  Cope  v.  Cope,  137  U.  S.  682,  34  L. 
Ed.  832,  11  S.  Ct.  222;  United  States  v. 
Freeman,  3  How.  556,  11  L.   Ed.  724. 

438-56.  Collection  of  back  taxes. — Laws 
of  retroactive  nature,  imposing  taxes  or 
providing  remedies  for  their  assessment 
and  collection,  and  not  impairing  vested 
rights,  are  not  forbidden  by  the  federal 
constitution.  Kentucky  Union  Co.  v. 
Kentucky,  219  U.  S.  140,  55  L.  Ed.  137, 
31  S.  Ct.  171;  League  v.  Texas,  184  U. 
S.  156,  46  L.  Ed.  478,  22  S.  Ct.  475.  See,, 
also,  ante,  "Permits  Classification  and  Di- 
versity in  Taxation,"  VJI,  B,  5,  d. 


345 


440-446 


CONST  I TUTIONAL  LA  IV. 


Vol.  IV. 


As  to  the  power  of  territorial  legislatures  to  prescribe  what  shall  consti- 
tute an  actionable  wrong  and  the  defenses  which  may  set  up  in  bar  thereof,  see 
ante,  "Powers  of  Territorial  Governments,"  VI,  D,  2,  c,  (3),  (c),  (cc),  (bbb), 
(dddd). 

As  to  the  power  of  the  legislature  to  protect  property  rights  from  mob 
violence  and  to  give  the  owner  of  property  a  right  of  action  against  the  munic- 
ipality for  property  destroyed  by  mobs,  see  post,  Due  Process  of  Law  ;  Police 
Power. 

b.   Defenses. — See  notes  66,  67. 

12.  Vested  Rights  under  Judgments  and  Decrees. — See  note  68. 

13.  Laws  Touching  Remedies  and  Procedure — e.  Retrospective  Statutes 
of  Limitations — (1)    Statutes  Limiting  Time  for  Bringing  Action. — See  note  91. 


440-66.  Vested  right  in  defense  to  ac- 
tion.—See  post,  DUE  PROCESS  OF 
LAW;  POLICE  POWER.  See,  also, 
ante,  "Actions  for  Injuries  to  Person  or 
Property,"  VI,  D,  3,  c,  (4),  (g). 

As  to  the  power  of  territorial  legisla- 
tures to  prescribe  what  shall  constitute 
an  actionable  wrong  and  the  defenses 
which  may  be  set  up  in  bar  thereof,  see 
ante,  "Powers  of  Territorial  Govern- 
ments," VI,  D,  2,  c,  (3),  (c),  (cc),  (bbb), 
(dddd). 

Defense  of  fellow  servants. — Act  Ark. 
March  8,  1907,  p.  162,  abolishing  the  fel- 
low-servant rule  as  to  corporations  oper- 
ating railroads  within  the  state  is  not  un- 
constitutional. Aluminum  Co.  v.  Ramsey, 
222  U.  S.  251,  56  L.  Ed.  185,  32  S.  Ct.  76. 
affirming  judgment  (1909)  117  S.  W.  568, 
89  Ark.  522.  See,  also,  ante,  "Abolishing 
the  Doctrine  of  Fellow  Servants,"  VII, 
B,  3,  i.  See,  also,  post,  DUE  PROCESS 
OF  LAW;  INTERSTATE  AND  FOR- 
EIGN COMMERCE;  POLICE  POWER. 

Doctrines  of  comparative  and  contribu- 
tory negligence. — See  ante,  "Abolishing 
the  Doctrine  of  Comparative  and  Con- 
tributory Negligence,"  VII,  B,  3,  i^. 

Receipt  of  benefits  from  memberships 
of  railway  relief  department. — As  to  power 
of  congress  to  prescribe  that  the  accept- 
ance of  benefits  under  a  contract  of  mem- 
bership in  a  railway  relief  department 
shall  not  operate  to  bar  a  recovery  of 
damages  for  the  death  or  injury  of  an 
employee,  see  post,  INTERSTATE  AND 
FOREIGN  COMMERCE. 

440-67.  Technical  and  inequitable  de- 
fenses.— Defendant  was  subpoenaed  as  a 
witness,  and  obeyed  by  going  to  the  fis- 
cal's  where  he  answered  questions  put  to 
him  without  knowing  that  he  had  a  right 
to  refuse,  or  being  notified  that  he  had 
such  right,  and  not  knowing  that  "the 
object  of  securing  his  statement  was  in 
order  to  search  for  proof  against  him." 
The  affidavit  also  stated  that  he  was  not 
represented  by  counsel,  and  did  not  know 
that  he  had  a  right  to  consult  a  lawyer. 
Motion  was  made,  presumably  based  .on 
the  affidavit,  for  an  order  to  the  fiscal  to 
return  to  the  defendant  the  statement, 
together  with  all  copies  of  the  same,  and 


that  the  fiscal  be  prohibited  from  using 
the  statement  in  any  manner  what- 
ever. Nothing  seems  to  have  been  done 
with  that  motion,  and  subsequently  it 
was  repeated  and  denied  on  the  ground 
"that  it  was  not  a  proper  time  to  make 
such  motion,  as  the  court  could  not  then 
decide  on  the  admissibility  of  proofs 
which  had  not  yet  been  offered  in  the 
cause."  An  exception  was  entered.  It 
was  not  contended  that  the  statement  was 
afterwards  used  in  any  way,  but  the  ac- 
tion of  the  court  was  urged  nevertheless 
as  an  error  "so  grave  and  so  material," 
to  use  counsel's  words,  "as  to  call  for  a 
new  trial."  The  argument  to  support  it 
was  based  on  suppositions  of  what  might 
have  been  done,  and  the  potency  of  the 
statement  in  the  hands  of  the  prosecuting 
officer.  "It  left  the  defendant  open,"  it 
was  said,  "to  the  fire  of  a  masked  bat- 
tery." Replying  to  this  argument,  the 
court  said:  "But  the  law  has  no  measure 
to  apply  to  such  a  situation.  Defendant 
was  certainly  not  disabled  from  telling 
the  truth  in  other  statements  if  he  wished 
to  make  them,  and  to  be  able  not  to  tell 
the  truth  can  hardly  be  urged  as  legal 
and  to  constitutional  right.  The  assign- 
ment of  error,  therefore,  is  not  well 
taken."  Pendleton  v.  United  States,  216 
U.    S.   305,  54   L.    Ed.   491,   30   S.    Ct.   315. 

440-68.  Vested  rights  under  judgments 
and  decrees — Judgments  procured  by 
fraudulent  means — Fraudulent  naturaliza- 
tion certificate. — An  alien  has  no  vested 
right  under  a  certificate  of  citizenship 
granted  by  a  decree  in  an  ordinary  ex 
parte  naturalization  proceeding  where 
such  decree  was  procured  by  fraud,  and 
it  is  entirely  competent  for  congress  to  en- 
act a  law  authorizing  proceedings  for  a 
direct  attack  upon  such  decree  and  can- 
cellation of  the  certificate  thus  obtained. 
Johannessen  v.  United  States,  225  U.  S. 
227,  56  L  Ed.  1066,  32  S.  Ct.  613.  See, 
also,  ante,  "Statute  Amending,  Overrul- 
ing, or  Setting  Aside  Judgment  or  De- 
cree," VI,  D,  3,  d,  (3),  (b),  (fif),  (aaa), 
eeee. 

446-91.  Retrospective  statutes  of  limita- 
tion— Limiting  time  for  bringing  action. 
— If  the  legislature  thinks  a  year  is  long 


346 


\'ol.  IV 


CONSTITUTIONAL  LAW. 


448-449 


f.  Lazvs  Ajfccting  the  Rules  of  Evidence. — See  notes  97,  2. 


enough  to  allow  a  party  to  recover  his 
property  from  a  third  hand,  and  estab- 
lishes that  time  in  cases  where  he  has  not 
been  heard  of  for  fourteen  years,  and  pre- 
sumably dead,  it  acts  within  its  constitu- 
tional discretion.  Now  and  then,  an 
extraordinary  case  may  turn  up,  but  con- 
stitutional law,  like  mortal  contrivances, 
has  to  take  some  chances,  and  in  the 
great  majority  of  instances,  no  doubt, 
justice  will  be  done.  Blinn  v.  Nelson,  222 
U.  S.  1,  56  L.  Ed.  65,  32  S.  Ct.  1.  See 
American  Land  Co.  v.  Zeiss,  219  U.  S.  47, 
67,  55  L.  Ed.  82,  31  S.  Ct.  200.  See,  also, 
ante,  "Judicial  Control  of  Legislative  Dis- 
cretion," VL  D,  3,  d,  (4),  (b),  (bb). 

448-97.  Laws  affecting  the  rules  of  evi- 
dence.— As  to  the  general  power  of  the 
state  to  prescribe  the  evidence  receivable 
in  the  courts  and  effect  thereof,  see  ante, 
"State  Courts;  Their  Constitution,  Juris- 
diction and  Procedure,"  VL  D,  3,  c, 
(4),    (e). 

449-2.  Prima  facie  presumptions — 
Power  to  create — Rules  and  Limitations. 
— ^.Generally  speaking,  the  legislature  of 
each  state  has  the  power  to  prescribe 
the  evidence,  which  shall  be  received  in 
the  courts  of  that  state,  and  the  effect 
thereof.  Bailey  v.  Alabama,  219  U.  S.  219, 
55  L.  Ed.  191,  31  S.  Ct.  145;  Lindsley  Z'. 
Natural  Carbonic  Gas  Co.,  220  U.  S.  61, 
55  L.  Ed.  369,  31  S.  Ct.  337. 

In  the  exercise  of  this  power  the  legis- 
lature may  enact  a  law  providing  that 
proof  of  one  fact,  or  of  several  collect- 
ively, shall  be  prima  facie  evidence  of 
the  main  proposition,  provided  the  infer- 
ence is  not  purely  arbitrary.  There  must 
be  a  rational  relation  between  the  two 
facts  and  the  defendant  or  accused  must 
not  be  deprived  of  opportunity  to  rebut 
such  presumption  by  submitting  all  the 
facts  bearing  upon  the  issue.  Such  stat- 
utes do  not  violate  the  requirements  of 
the  provision  of  due  process  of  law,  deny 
the  equal  protection  of  the  laws,  nor  de- 
prive litigants  of  any  contract  or  vested 
right.  Bailey  v.  Alabama,  219  U.  S.  219, 
55  L.  Ed.  191,  31  S.  Ct.  145;  Lindsley  v. 
Natural  Carbonic  Gas  Co.,  220  U.  S.  61, 
55  L.  Ed.  369,  31  S.  Ct.  337. 

Legislation  providing  that  proof  of  one 
fact  shall  constitute  prima  facie  evidence 
of  the  main  fact  in  issue  is  but  to  enact 
a  rule  of  evidence,  and  quite  within  the 
general  power  of  government.  Statutes, 
national  and  state,  dealing  with  such 
methods  of  proof  in  both  civil  and  crimi- 
nal cases,  abound,  and  the  decisions  up- 
holding them  are  numerous.  Mobile,  etc., 
R.  Co.  V.  Turnipseed,  219  U.  S.  35,  55  L. 
Ed.   78,   31    S.    Ct.    136. 

That  a  legislative  presumption  of  one 
fact  from  evidence  of  another  may  not 
constitute  a  denial  of  due  process  of  law 


or  a  denial  of  the  equal  protection  of  the 
law,  it  is  only  essential  that  there  shall  be 
some  rational  connection  between  the  fact 
proved  and  the  ultimate  fact  presumed, 
and  that  the  inference  of  one  fact  from 
proof  of  another  shall  not  be  so  unrea- 
sonable as  to  be  a  purely  arbitrary  man- 
date. So,  also,  it  must  not,  under  guise 
of  regulating  the  presentation  of  evidence, 
operate  to  preclude  the  party  from  the 
right  to  present  his  defense  to  the  main 
fact  thus  presumed.  Mobile,  etc.,  R.  Co. 
V.  Turnipseed,  219  U.  S.  35,  55  L.  Ed.  78, 
31    S.    Ct.    136. 

If  a  legislative  provision  not  unreason- 
able in  itself,  prescribing  a  rule  of  evi- 
dence, in  either  criminal  or  civil  cases, 
does  not  shut  out  from  the  party  affected 
a  reasonable  opportunity  to  submit  to  the 
jury  in  his  defense  all  of  the  facts  bearing 
upon  the  issue,  there  is  no  ground  for 
holding  that  due  process  of  law  has  been 
denied  him.  Mobile,  etc.,  R.  Co.  v.  Tur- 
nipseed, 219  U.  S.  35,  55  L.  Ed.  78,  31  S. 
Ct.    136. 

Same — Illustrations. — Making  the  en- 
gaging in  pumping  mineral  waters  from 
wells  bored  or  drilled  into  the  rock  for 
the  purpose  of  collecting  and  vending 
as  a  separate  commodity  the  carbonic 
acid  gas  contained  therein  prima  facie 
evidence  of  the  common  underground 
source  of  supply  and  of  injury  to  other 
proprietors,  as  is  done  by  Laws  N.  Y. 
1908,  c.  429,  forbidding  the  pumping  of 
the  waters  under  such  conditions,  does 
not  render  the  statute  invalid,  either  as 
infringing  the  due  process  or  equal  pro- 
tection guaranties  of  the  fourteenth 
amendment.  Lindsley  v.  Natural  Carbonic 
Gas  Co.,  220  U.  S.  61,  55  L.  Ed.  369,  31  S. 
Ct.  337,  affirming  decree  (C.  C.  1909)  170 
F.  1023. 

Making  the  entry  upon  the  official  rec- 
ord of  the  forfeiture  of  school  land  for 
default  in  payment  of  the  purchase  price 
prima  facie  but  not  conclusive  evidence 
that  all  the  preliminary  steps  essential  to 
a  valid  forfeiture  were  properly  taken,  and 
that  the  forfeiture  was  duly  declared,  as 
is  done  by  Kan.  Laws  1907,  chap.  373, 
does  not  offend  against  either  the  con- 
tract or  the  due  process  of  law  clause  of 
the  federal  constitution,  although  con- 
strued as  applicable  to  pending  causes. 
Reitler  v.  Harris,  223  U.  S.  437,  56  L.  Ed. 
497,   32   S.    Ct.   248. 

The  statute  dealt  only  with  a  rule  of 
evidence,  not  with  any  substantive  right. 
That  such  a  statute  does  not  offend 
against  either  the  contract  clause  or  the 
due  process  of  law  of  the  constitution, 
even  where  the  change  is  made  appli- 
cable to  pending  causes,  is  now  settled. 
Reitler  v.  Harris,  223  U.  S.  437,  56  L.  Ed. 
497,  32   S.   Ct.  248;   Pillow  V.  Roberts,  13 


347 


449 


COXSriTUTIOXAL  LAJV. 


\'ol.  IV. 


IX.  Due  Process  of  Law. 

See  post,  Due  Process  of  Law. 


How.  472,  476,  14  L.  Ed.  228;  Marx  :■. 
Hanthorn,  148  U.  S.  172,  181,  37  L.  Ed.  410, 
13  S.  Ct.  508;  Turpin  v.  Lemon,  187  U. 
S.  51,  59,  47  L.  Ed.  70,  23  S.  Ct.  20;  Linds- 
ley  V.  Natural  Carbonic  Gas  Co.,  220  U. 
S.  61,  81,  55  L.  Ed.  369,  31  S.  Ct.  337; 
Curtis  V.  Whitney,  13  Wall.  68,  20  L.  Ed. 
513. 

Due  process  of  law  is  not  denied  by 
Code  Miss.  1906,  §  1985,  under  which,  in 
actions  against  railway  companies  for 
damages  done  to  persons  or  property, 
proof  of  injury  inflicted  by  the  running  of 
the  locomotives  or  cars  is  made  prima 
facie  evidence  of  negligence.  Mobile,  etc., 
R.  Co.  V.  Turnipseed,  219  U.  S.  35,  55 
L.  Ed.  78,  31  S.  Ct.  136,  affirming  judg- 
ment Same  v.  Hicks  (1908)  46  So.  360, 
91   Miss.   273,  124  Am.   St.   Rep.   679. 

The  equal  protection  of  the  laws  is  not 
denied  by  Code  Miss.  1906,  §  1985,  under 
which,  in  actions  against  railway  com- 
panies for  damage  done  to  persons  or 
property,  proof  of  injury  inflicted  by  the 
running  of  the  locomotives  or  cars  is 
made  prima  facie  evidence  of  negligence. 
Mobile,  etc.,  R.  Co.  v.  Turnipseed.  219  U. 
S.  35,  55  L.  Ed.  78,  31  S.  Ct.  136,  affirm- 
ing judgment  Same  v.  Hicks  (1908)  46 
So.  360,  91  Miss.  273,  124  Am.  St.  Rep. 
679. 

Due  process  of  law  is  not  denied  an 
abutting  owner  of  property  on  which 
dwellings  have  been  erected  by  the  at- 
tempt, in  Act  May  19,  1896,  29  Stat.  125, 
c.  206,  creating  a  drainage  system  in  the 
District  of  Columbia,  under  which  she  is 
assessed  for  the  expense  of  connecting 
her  property  with  a  sewer,  to  give  a  con- 
trolling evidential  efifect  to  the  existence 
of  such  improvements  as  dwellings,  as 
indicating  the  necessity  for  making  such 
connection.  Judgment  (1907)  29  App.  D. 
C.  563,  reversed.  District  of  Columbia  z: 
Brooke,  214  U.  S.  138,  53  L.  Ed.  941,  29 
S.   Ct.   560. 

Same — Creation  of  more  than  mere 
temporary  inference. — A  statute  of  this 
character  does  not  deny  the  equal  protec- 
tion of  the  law  or  otherwise  fail  in  due 
process  of  law,  because  as  construed  by 
the  state  court  it  goes  beyond  the  crea- 
tion of  a  mere  temporary  inference  of 
fact  and  creates  a  presumption  of  liabil- 
ity, where  its  operation  is  only  to  supply 
an  inference  of  liability  in  the  absence  of 
other  evidence  contradicting  such  infer- 
ence. Mobile,  etc.,  R.  Co.  v.  Turnipseed, 
219  U.  S.  35,  55  L.  Ed.  78,  31  S.  Ct.  136. 

Power  to  create  presumptions  not  to 
be  used  to  evade  constitutional  restric- 
tions.— In  this  class  of  cases  where  the 
entire  subject  matter  of  the  legislation  is 
otherwise  within   state   control,  the  ques- 


tion has  been  whether  the  prescribed 
rule  of  evidence  interferes  with  the  guar- 
anteed equality  before  the  law,  or  violates 
those  fundamental  rights  and  immutable 
principles  of  justice  which  are  embraced 
within  the  conception  of  due  process  of 
law.  But  where  the  conduct  or  fact,  the 
existence  of  which  is  made  the  basis  of 
the  statutory  presumption,  itself  falls 
within  the  scope  of  a  provision  of  the 
federal  constitution,  a  further  question 
arises.  It  is  apparent  that  a  constitu- 
tional prohibition  can  not  be  transgressed 
indirectly  by  the  creation  of  a  statutory 
presumption  any  more  than  it  can  be  vio- 
lated by  direct  enactment.  The  power  to 
create  presumptions  is  not  a  means  of  es- 
cape from  constitutional  restrictions. 
And  the  state  may  not  in  this  way  inter- 
fere with  matters  withdrawn  from  its 
authority  by  the  federal  constitution,  or 
subject  an  accused  to  conviction  for  con- 
duct which  it  is  powerless  to  prescribe. 
Bailey  v.  Alabama,  219  U.  S.  219,  55  L.  Ed. 
191,  31   S.    Ct.   145. 

For  example,  a  state  can  not  evade  the 
prohibition  against  slavery  and  involun- 
tary servitude  contained  in  the  thirteenth 
amendment  and  in  the  federal  statutes 
designed  to  prohibit  and  punish  the  same, 
by  enacting  a  law  making  it  a  crime  for 
any  person  to  enter  into  a  contract  to 
render  labor  or  personal  services  to  an- 
other and  obtain,  under  such  contract,  ad- 
vances in  money  or  personal  property 
with  the  intent  to  defraud  the  party 
advancing  the  same,  and  making  the  fail- 
ure to  perform  such  services  without 
refunding  the  money  or  property  so  ad- 
vanced prima  facie  evidence  of  the  intent 
to  defraud,  the  defendant  being  denied 
the  right,  under  other  laws  of  the  state, 
to  testify  as  to  his  motive  or  intent  at 
the  time  he  entered  into  the  contract  and 
received  the  money  on  goods  advanced. 
Bailey  v.  Alabama,  219  U.  S.  219,  55  L.  Ed. 
191,  31   S.   Ct.   145. 

And  it  is  immaterial  in  such  case  that 
the  state  court  of  last  resort  has  held, 
construing  the  statute,  that  it  does  not 
bind  the  jury  to  convict  upon  the  strength 
of  such  prima  facie  presumption  created 
by  the  statute,  and  that  the  jury  is  at 
liberty  to  aquit.  even  though  there  be  no 
evidence  to  rebut  the  presumption  cre- 
ated by  the  statute.  It  was  held  in  such 
a  case  that  the  controlling  construction 
of  the  statute  was  the  affirmance  of  the 
judgment  of  conviction;  that  it  was  not 
sufficient  to  declare  that  the  statute  did 
not  make  it  the  duty  of  the  jury  to  con- 
vict where  there  was  no  other  evidence 
but  the  breach  of  the  contract  and  the 
failure    to    pay    the    debt;    that    the    point 


348 


A'ol.  IV 


COXSTITUTIOXAL  LAW. 


459-475 


X.  Impairment  of  the  Obligation  of  Contracts. 

See  post,  Impairment  of  Obligation  of  Contracts. 

XI.    The  Rights  of  Life,  Liberty,  Private  Property  and  the  Pursuit  of 

Happiness. 

See  notes  40,  47. 

XIV.  Justice  without  Denial,  Purchase  or  Delay. 

See,  generally,  post,  Due  Process  of  Law.  See,  also,  ante,  "Equal  Protection 
of  the  Laws ;  Class  Legislation,"  VII,  et  seq.  As  to  statutes  which  impose  pen- 
alties so  severe  as  to  deter  persons  atTected  thereby  from  resorting  to  the  courts 
for  the  purpose  of  testing  their  validity,  see  ante,  "Generally,"  \'II,  B,  4,  a,  (1). 
See,  also,  post.  Due  Process  of  Law;    Interstate  and  Foreign  Commerce. 

XVII.    Political  Rights  and  Privileges  and  Their  Protection. 

A.    Of  the  General  Rights  and  Privileges  Pertaining  to  Citizenship — 

2.  Citizenship  in  the  States  and  the  Protection  Afforded  by  Art.  4,  §  2, 
of  the  United  States  Constitution — a.  Persons  Entitled  to  Invoke  the  Pro- 
tection of  Art.  4,  §  2 — (6)  Corporations. — See,  generally,  post.  Corporations; 
Foreign  Corpoil\tions ;  Interstate  and  Foreign  Commerce;  Removal  of 
Causes.  See,  also,  ante,  "Equal  Protection  of  the  Laws;  Class  Legislation,"  \  II, 
et  seq. 

c.  Privileges  and  Immunities  Secured  to  Citizen  by  Art.  4.  §  2 — (4)  Right  to 
Fish  or  Fold  in  Public  Waters  of  Another  State. — See  note  8. 

Same — Right  of  Congress  to  Regulate  Taking  and  Importation  of 
Sponges. — As  to  the  right  of  congress  to  regulate  the  taking  of  sponges  in  ter- 
ritorial waters  of  any  state,  see  post,  Interstate  and  Foreign  Commerce. 

(7)  The  Right  to  Engage  in  Trade,  Commerce  or  Lazvful  Business. — See 
note  16. 


was  that,  in  such  a  case,  the  statute  au- 
thorized the  jury  to  convict,  and  it  was 
not  enough  to  say  that  the  jury  were  at 
liberty  to  refuse  to  accept  that  evidence 
as  alone  sufficient,  since  the  jury  might 
accept  it,  and  they  had  the  express  war- 
rant of  the  statute  to  accept  it  as  a  basis 
for  their  verdict;  that  it  was  in  this  light 
tnat  the  validity  of  the  statute  must  be 
determined.  Bailey  v.  Alabama,  219  U.  S. 
219,   55   L.    Ed.    191,   31    S.   Ct.   145. 

459-40.  The  right  to  life,  liberty  and 
the  pursuit  of  happiness;  as  including 
right  to  pursue  lawful  business,  trade,  oc- 
cupation or  orofession. — See  post,  DUE 
PROCESS  OF  LAW:  POLICE  POWER. 

461-47.  Aliens — Right  to  invoke  consti- 
tutional guaranties. — See,  generally,  ante, 
ALIENS,  p.  18;  CITIZENSHIP,  p.  235: 
CIVIL  RIGHTS,  p.  236;  post,  DUE 
PROCESS  OF  LAW.  See,  also,  ante, 
'"Generally  as  to  International  R'^lations; 
Determination  of  Rightful  Sovereign  or 
Government,"   VI,   D,   3.  d,    (3),    (c),    (cc). 

474-8.  Right  to  fish  or  fowl  in  public 
waters  of  another  state. — The  principle 
has  long  been  settled  in  the  federal  su- 
preme court  that  each  state  owns  the 
beds  of  all  tide  waters  within  its  juris- 
diction, unless  they  have  been  granted 
away.  The  Abbey  Dodge,  223  U.  S-  166, 
56   L.    Ed.   390,   32    S.    Ct.    310;    Pollard   t: 


Hagan,  3  How.  212,  11  L.  Ed.  565;  Smith 
c'.  Maryland,  18  How.  71,  74,  15  L.  Ed. 
269;  Mumford  v.  Wardwell,  6  Wall.  423, 
436,  18  L.  Ed.  756;  Weber  v.  Board,  18 
Wall.  57,  66,  21  L.  Ed.  798. 

In  like  manner  the  states  own  the  tide 
waters  themselves,  and  the  fish  in  them, 
so  far  as  they  are  capable  of  ownership 
while  running.  For  this  purpose  the 
state  represents  its  people,  and  the  owner- 
ship is  that  of  the  people  in  their  united 
sovereignty.  Martin  v.  Waddell,  16  Pet. 
367,  10  L.  Ed.  997.  The  right  which  the 
people  of  the  state  thus  acquire  comes 
not  from  their  citizenship  alone,  but  from 
their  citizenship  and  property  combined. 
It  is,  in  fact,  a  property  right,  and  not  a 
mere  privilege  or  immunity  of  citizenship. 
The  Abbey  Dodge,  223  U.  S.  166,  56  L. 
Ed.   390,   32   S.   Ct.   310. 

The  rights  thus  held  to  exist  in  the 
states  are  "subject  to  the  paramount  right 
of  navigation,  the  regulation  of  which, 
in  respect  to  foreign  and  interstate  com- 
merce, has  been  granted  to  the  United 
States."  The  Abbey  Dodge,  223  U.  S.  166, 
56  L.  Ed.  390,  32  S.  Ct.  310. 

475-16.  Right  to  engage  in  trade,  com- 
merce or  lawful  business. — To  carry  on 
interstate  commerce  is  not  a  franchise  or 
a  privilege  granted  by  the  state;  it  is  a 
right  which   every   citizen   of   the   United 


349 


478-479 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


(10)  The  Right  to  Bring  Actions;  Remove  Causes. — As  to  Transitory  Ac- 
tions Arising  Out  of  State. — Each  state  may,  subject  to  restrictions  of  the 
federal  constitution,  determine  the  hmits  of  the  jurisdiction  of  its  courts,  the 
character  of  the  controversies  which  shall  be  heard  by  them,  and,  specifically, 
how  far  it  will,  having  jurisdiction  of  the  parties,  entertain  in  its  courts  transitory 
actions,  where  the  cause  of  action  has  arisen  outside  its  borders. ^^^ 

Removal  of  Causes. — As  to  the  validity  of  statutes  requiring  a  surrender  of 
the  right  to  remove  causes  into  the  federal  courts  as  a  condition  precedent  to  the 
right  to  do  business  in  the  state,  and  of  kindred  legislation,  see  post,  Removal, 
6f  Causes. 

(12)  As  to  Diverting  Waters  of  Interstate  Stream. — Privileges  and  immunities 
under  art.  4,  §  3.  are  not  denied  to  citizens  of  other  states  by  a  state  law  which 
prohibits  riparian  owners  from  diverting  the  waters  of  a  stream  of  that  state  into 
any  other  state  for  use  therein. ^^^ 


States  is  entitled  to  exercise  under  the 
constitution  and  laws  of  the  United  States; 
and  the  accession  of  mere  corporate  fa- 
cilities, as  a  matter  of  convenience  in  car- 
rying on  their  business,  can  not  have  the 
efifect  of  depriving  them  of  such  right, 
unless  congress  should  see  fit  to  interpose 
some  contrary  regulation  on  the  subject. 
International  Textbook  Co.  v.  Pigg,  217 
U.  S.  91,  54  L.  Ed.  678,  30  S.  Ct.  481; 
International  Textbook  Co.  v.  Peterson, 
318  U.  S.  664,  54  L.  Ed.  1201,  31  S.  Ct. 
225.  See.  also,  post,  INTERSTATE  AND 
FOREIGN  COMMERCE. 

Foreign  corporations. — See,  generally, 
post,  CORPORATIONS;  FOREIGN 
CORPORATIONS;  INTERSTATE 
AND  FOREIGN  COMMERCE;  RE- 
MOVAL OF  CAUSES.  See,  also,  ante, 
"Corporations,"  VII,  B,  1,  b;  post,  "The 
Right  to  Bring  Actions;  Remove  Causes," 
XVII,  A,  2,  c,  (10). 

478-21a.  As  to  transitory  actions  aris- 
ing out  of  state. — St.  Louis,  etc.,  R.  Co. 
V.  Taylor,  210  U.  S-  281,  285,  52  L.  Ed. 
1061,  28  S.  Ct.  616;  Atchison,  etc.,  R.  Co. 
V.  Sow^ers,  213  U.  S.  55,  53  L.  Ed.  695,  29 
S.   Ct.   397. 

The  privileges  and  immunities  of  citi- 
zens in  the  several  states,  secured  by 
Const.  U.  S.,  art.  4,  §  2,  par.  1,  to  the 
citizens  of  each  state,  are  not  denied  by 
the  provision  of  an  Ohio  statute  under 
which,  as  construed  by  the  highest  court 
of  that  state,  the  right  of  action  created 
by  Act  Pa.  April  15,  1851,  p.  674,  §  19,  in 
favor  of  the  widow  or  personal  represent- 
atives of  one  whose  death  is  caused  by 
negligence,  can  be  maintained  in  the  Ohio 
courts,  only  when  the  deceased  was  an 
Ohio  citizen.  Judgment,  Baltimore  &  O. 
R.  Co.  V.  Chambers  (1905)  76  N.  E.  91,  73 
Ohio  St.  16,  afifirmed.  Chambers  v.  Bal- 
timore, etc.,  R.  Co.,  207  U.  S.  142,  52  L. 
Ed.  142,  28  S.  Ct.  34. 

The  statute  of  Ohio  provided  that 
"whenever  the  death  of  a  citizen  of  this 
state  has  been  or  may  be  caused  by  a 
wrongful  act,  neglect,  or  default  in  an- 
other state,  territory,  or  foreign   country, 


for  which  a  right  to  maintain  an  action 
and  recover  damages  in  respect  thereof 
is  given  by  a  statute  of  such  other  state, 
territory,  or  foreign  country,  such  right 
of  action  may  be  enforced  in  this  state 
within  the  time  prescribed  for  the  com- 
mencement of  such  action  by  the  statute 
of  such  other  state,  territory,  or  foreign 
country."  A  citizen  of  Pennsylvania  re- 
ceived injuries  from  which  he  died.  His 
widow,  also  a  citizen  of  Pennsylvania, 
brought  action  in  Ohio  alleging  negli- 
gence. The  supreme  court  held  the  action 
could  not  be  maintained  because  the  de- 
ceased was  not  a  citizen  of  Ohio.  Cham- 
bers V.  Baltimore,  etc.,  R.  Co.,  207  U.  S. 
142,  52  L.  Ed.  142,  28  S.  Ct.  34. 

Commenting  on  the  case,  the  court  says: 
"It  appears  clearly,  therefore,  that  the 
cause  of  action  which  the  plaintifif  sought 
to  enforce  was  one  created  for  her  bene- 
fit and  vested  originally  in  her.  She  has 
not  been  denied  access  to  the  Ohio  courts 
because  she  is  not  a  citizen  of  that  state, 
but  because  the  cause  of  action  which 
she  presents  is  not  cognizable  in  those 
courts.  She  would  have  been  -  denied 
hearing  of  the  same  cause  for  the  same 
reason  if  she  had  been  a  citizen  of  Ohio. 
In  excluding  her  cause  of  action  from 
the  courts  the  law  of  Ohio  has  not  been 
influenced  by  her  citizenship,  which  is  re- 
garded as  immaterial.  We  are  unable  to 
see  that  in  this  case  the  plaintifif  has  been 
refused  any  right  which  the  constitution 
of  the  United  States  confers  upon  her, 
and  accordingly  the  judgment  is  afifirmed." 
Chambers  v.  Baltimore,  etc.,  R.  Co.,  207 
U.    S.    142,    52    L.    Ed.    142,   28    S.    Ct.   34. 

479-26a.  As  to  diverting  waters  of  in- 
terstate stream. — Hudson  County  Water 
Co.  V.  McCarter,  209  U.  S.  349,  52  L-  Ed. 
828,   28   S.   Ct.   529. 

On  May  11,  1905,  the  state  of  New 
Jersey,  reciting  the  need  of  preserving 
the  fresh  water  of  the  state  for  the  health 
and  prosperity  of  the  citizens,  enacted 
that  "it  shall  be  unlawful  for  any  person 
or  corporation  to  transport  or  carry, 
through    pipes,    conduits,    ditches,    or    ca- 


350 


A'ol.  IV. 


COXSTITUTIOXAL  LAJJ 


479-481 


3.  Citizenship  of  the  United  States — a.  Generally. — See  ante,  Citizen- 
ship, p.  235. 

b.  Citizenship  under  the  Fourteenth  A)nendment  and  the  Privileges  and  Im- 
munities of  United  States  Citizenship — (1)  Who  Are  Citizens  imder  the  Four- 
teenth Amendment. — See,  generally,  ante,  Citize;nship,  p.  235. 

Corporations  as  Citizens. — See  note  27. 

(2)  Of  the  General  Object  and  Purpose  of  the  Fourteenth  Amendment — (a) 
To  Define  Citizenship  and  Confer  the  Same  upon  the  Negro  Race. — See  note  28. 

(c)  Police  Powers  Remain  Unrestricted. — See  note  33. 

(d)  Protection  of  Life,  Liberty  and  Property  Rests  Primarily  z^'ith  the  States. 
— See  note  34. 


nals,  the  waters  of  any  fresh  water  lake, 
pond,  brook,  creek,  river,  or  stream  of 
this  state  into  any  other  state,  for  use 
therein."  Held,  that  privileges  of  citizens 
of  New  Jersey  are  not  denied  to  the 
citizens  of  other  states  by  Laws  N.  J. 
1905,  p.  461,  c.  238,  under  which  a  ripa- 
rian owner  may  be  prevented  from  divert- 
ing the  waters  of  a  stream  of  that  state 
into  any  other  state,  for  use  therein.  De- 
cree, McCarter  z'.  Hudson  County  Water 
Co.  (1906),  65  A.  489,  70  N.  J.  Eq.  695, 
affirmed.  Hudson  County  Water  Co.  i'. 
McCarter,  209  U.  S.  349,  52  L.  Ed.  828, 
28  S.  Ct.  529. 

479-27.  Corporations  not  citizens  within 
privileges  and  immunities  clause. — Since 
a  corporation  lias  no  right  to  exist  except 
by  permission  of  the  state,  it  must  con- 
tent itself  with  such  powers,  privileges, 
and  immunities  as  the  state  may  see  fit 
to  bestow  upon  it.  Not  being  entitled  to 
all  the  privileges  and  immunities  of  an 
individual,  the  corporation  may  be  re- 
stricted in  ways  in  which  an  individual 
could  not  be.  Berea  College  v.  Common- 
wealth, 211  U.  S.  4^.  53  L.  Ed.  81,  29  S. 
Ct.  33.  See,  also,  ante.  CITIZENSHIP, 
p.  235;  post,  CORPORATIONS;  FOR- 
EIGN   CORPORATIONS. 

Thus,  the  Kentucky  Act  of  1904,  ch.  85, 
forbidding  the  teaching  of  white  and  ne- 
gro children  in  the  same  school,  was  up- 
held as  against  a  corporation,  although 
it  was  admitted  that  the  same  provisions 
might  be  invalid  if  applied  to  individuals. 
Berea  College  v.  Commonwealth,  211  U. 
S.  45.  53   L.   Ed.   81.  29   S.   Ct.  33. 

480-28.  General  object  and  purpose — 
Citizenship  of  the  United  States. — The 
fourteenth  amendment,  it  is  observed  by 
Mr.  Justice  Miller,  delivering  the  opinion 
of  the  court,  removed  the  doubt  whether 
there  could  be  a  citizenship  of  the  United 
States  independent  of  citizenship  of  the 
state,  by  recognizing  or  creating  and  de- 
fining the  former.  "It  is  quite  clear, 
then,"  he  proceeds  to  say,  "that  there  is 
a  citizenship  of  the  United  States  and  a 
citizenship  of  a  state,  which  are  distinct 
from  each  other,  and  which  depend  upon 
different   characteristics   or   circumstances 


in  the  individual."  Twining  v.  New  Jer- 
sey, 211  U.  S.  78,  94,  53  L.  Ed.  97,  29  S. 
Ct.   14. 

481-33.  Police  powers  remain  unre- 
stricted.— See.  generally,  post,  POLICE 
POWER. 

The  privileges  and  immunities  of  fed- 
eral citizenship  have  never  been  held  to 
prevent  governmental  authority  from 
placing  such  restraints  upon  the  conduct 
or  property  of  citizens  as  is  necessary 
for  the  general  good.  The  privileges  and 
immunities  of  citizenship  were  said  in  the 
Slaughter-House  Cases,  16  Wall.  36,  76, 
21  L.  Ed.  394,  408,  to  comprehend:  "Pro- 
tection by  the  government,  with  the  right 
to  acquire  and  possess  property  of  every 
kind,  and  to  pursue  and  obtain  happiness 
and  safety,  subject,  nevertheless,  to  such 
restraints  as  the  government  may  pre- 
scribe for  the  general  good  of  the  whole.'' 
Tiger  v.  Western  Invest.  Co.,  221  U.  S. 
286,    55    L.    Ed.    738,   31    S.    Ct.    578. 

Regulation  of  business,  trade,  occupa- 
tion, profession,  etc. — Privileges  and  im- 
munities of  citizens  of  the  United  States 
are  not  abridged,  contrary  to  U.  S.  Const. 
Amend.  14,  by  a  state  statute  under 
which,  as  construed  by  the  state  courts, 
a  telegraph  company  can  not  limit  its 
liability  for  its  negligent  failure  to  de- 
liver a  telegram  addressed  to  a  person  in 
another  state.  Western  L'nion  Tel.  Co. 
z'.  Commercial  Milling  Co.,  218  U.  S.  406, 
54  L.  Ed.  1088,  31  S.  Ct.  59,  affirming  Com- 
mercial Milling  Co.  v.  Western  Union 
Tel.  Co.  151  Mich.  425,  115  N.  E.  698. 
See,  also,  post,   POLICE  POWER. 

481-34.  Protection  of  life,  liberty  and 
property  rests  primarily  with  the  states. 
— There  can  be  no  doubt,  so  far  as  the 
decision  in  the  Slaughter-House  Cases 
has  determined  the  question,  that  the 
civil  rights  sometimes  described  as  fun- 
damental and  inalienable,  which  before 
the  war  amendments  were  enjoyed  by 
state  citizenship  and  protected  by  state 
government,  were  left  untouched  by  this 
clause  of  the  fourteenth  amendment. 
Twining  z:  New  Tersey,  211  U.  S.  78.  96, 
53   L.    Ed.   97,  29   S.   Ct.   14. 


351 


481-484 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


(e)  Provides  Additional  Security  against  State  Infringement;  hut  against 
State  Infringement  Only. — See  note  37. 

(f)  Privileges  and  Immunities  Clause  Protects  Only  the  Privileges  and  Im- 
munities Pertaining  to  Citizenship  of  the  United  States. — Distinction  between 
State  and  Federal  Citizenship. — See  note  38. 

(3)  Privileges  and  Immunities  of  United  States  Citizenship — (a)  Privileges 
and  Immunities  Defined. — Privileges  and  immunities  of  citizens  of  the  United 
States,  are  only  such  as  arise  out  of  the  nature  and  essential  character  of  the 
national  government,  or  are  specifically  granted  or  secured  to  all  citizens  or 
persons  by  the  constitution  of  the  United  States.'*^^ 

As  Including  Right  to  Acquire  and  Possess  Property,  Pursue  and  Ob- 
tain Happiness. — The  privileges  and  immunities  of  citizenship  were  said,  in 
the  Slaughter-House  Cases,  16  Wall.  36,  76,  21  L.  Ed.  394,  to  comprehend 
"Protection  by  the  government,  with  the  right  to  acquire  and  possess  property 
of  every  kind,  and  to  pursue  and  obtain  happiness  and  safety,  subject,  never- 
theless, to  such  restraints  as  the  government  may  prescribe  for  the  general  good 
of  the  whole."^^'' 

(b)    Rights  Protected  by  the  First  Ten  Amendments. — See  note  46. 


481-37.  Protects  against  state  infringe- 
ment only. — The  fourteenth  and  fifteenth 
amendments  are  restraints  upon  state  ac- 
tion solely,  and  not  upon  the  actions  of 
individuals.  United  States  v.  Powell,  212 
U.  S.  564,  53  L.  Ed.  653.  See,  also,  ante, 
"Refers  to  Infringement  by  States;  Not 
by   Individuals,"   VII,   B,   2,   c. 

482-38.  A  distinction  between  state 
and  federal  citizenship. — "It  is  quite  clear 
then  *  *  *  that  there  is  a  citizenship  of 
the  United  States  and  a  citizenship  of  a 
state,  which  are  distinct  froin  each  other, 
and  which  depend  upon  different  character- 
istics or  circumstances  in  the  individual." 
Twining  v.  New  Jersey,  211  U.  S.  78,  94, 
53  L.  Ed.  97,  29  S.  Ct.  14,  quoting  lan- 
guage of  Mr.  Justice  Miller  in  Slaughter- 
House  Cases.   16  Wall.   36,  21   L.   Ed.   394. 

484-45a.  Privileges  and  immunities  of 
federal  citizenship  defined. — Twining  z'. 
New  Jersey,  211  U.  S.  78,  97,  53  L.  Ed. 
97,  29  S.  Ct.  14;  Slaughter-House  Cases, 
16  Wall.  36,  21  L.  Ed.  394;  In  re  Kemm- 
ler,  136  U.  S.  436,  448,  34  L.  Ed.  519,  10 
S.  Ct.  930;  Duncan  v.  Missouri,  152  U.  S. 
377,  382,  38   L.   Ed.  485,  14  S.   Ct.   570. 

484-45b.  As  including  right  to  acquire 
and  possess  property,  pursue  and  obtain 
happiness,  etc. — Tiger  r.  Western  Invest. 
Co.,  221  U.  S.  286,  55  L.  Ed.  738,  31  S. 
Ct.    578. 

Same — Restraint  upon  conduct  and 
property — Restraints  upon  incompetent 
persons. — The  privileges  and  immunities 
of  federal  citizenship  have  never  been 
held  to  prevent  governmental  authority 
from  placing  such  restraints  upon  the 
conduct  or  property  of  citizens  as  is  nec- 
essary for  the  general  good.  Incompe- 
tent persons,  though  citizens,  may  not 
have  the  full  right  to  control  their  per- 
sons and  property.  Tiger  v.  Western 
Invest.  Co.,  221  U.  S.  286,  55  L.  Ed.  738, 
31    S.    Ct.   578. 


Same — Restraints  upon  Indians  who 
have  been  made  citizens. — The  rights  of 
the  Creek  Indians  in  the  Indian  territory 
who  were  made  citizens  of  the  United 
States  by  the  Act  of  March  3,  1901  (31 
Stat,  at  L.  1447,  chap.  868),  with  all  of  the 
rights,  privileges,  and  immunities  of  such 
citizens,  were  not  unconstitutionally  im- 
paired by  the  Act  of  April  26,  1906,  §  22, 
extending  the  prohibition  against  the  al- 
ienation of  allotted  lands  by  the  allottee 
or  his  heirs  without  the  approval  of  the 
secretary  of  the  interior,  created  by  the 
supplemental  Creek  agreement  of  June 
30,  1902,  beyond  the  five  year  limitation 
therein  expressed.  Tiger  v.  Western  In- 
vest. Co.,  221  U.  S.  286,  55  L.  Ed.  738,  31 
S.    Ct.   578. 

484-46.  Rights  protected  by  the  first 
ten  amendments. — The  fourteenth  amend- 
ment did  not  forbid  the  states  to  abridge 
the  personal  rights  enumerated  in  the  first 
eight  Amendments,  because  those  rights 
were  not  within  the  meaning  of  the 
clause  "privileges  and  immunities  of  citi- 
zens of  the  United  States."  Twining  v. 
New  Jersey,  211  U.  S.  78,  53  L.  Ed.  97, 
29   S.   Ct.   14. 

Same  —  Exemption  from  compulsory 
self-incrimination. — Exemption  from  self- 
incrimination,  though  secured  as  against 
federal  action  by  Const.  U.  S.  Amend.  5, 
is  not  one  of  the  fundamental  rights  of 
national  citizenship,  so  as  to  be  included 
among  the  privileges  and  immunities  of 
citizens  of  the  United  States  which  the 
states  are  forbidden  by  the  fourteenth 
amendment  to  abridge.  Judgment,  State 
of  New  Jersey  v.  Twining  (1906)  64  A. 
1073,  73  N.  J.  Law,  683,  affirmed.  Twin- 
ing V.  New  Jersey,  211  U.  S.  78,  53  L. 
Ed.   97,   29    S.    Ct.    14. 

Upon  this  point,  the  court  says:  "If 
then  it  be  assumed,  without  deciding  the 
point,    that    an    exemption    from    compul- 


352 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


486-487 


(i)  Access  to  All  the  Courts;  Removal  of  Causes. — In  all  the  cases  in  the  su- 
preme court,  discussing  the  right  of  the  states  to  exclude  foreign  corporations, 
and  to  prevent  them  from  removing  cases  to  the  federal  courts,  it  has  been  con- 
ceded that  while  the  right  to  do  local  business  within  the  state  may  have  been 
derived  from  the  federal  constitution,  the  right  to  resort  to  the  federal  courts 
is  a  creation  of  the  constitution  of  the  United  States  and  the  statutes  passed 
in  pursuance  thereof,  and  can  not  be  taken  away  by  state  enactments. ^^'^ 

(n)  Right  to  Pursue  Ordinary  Trade  or  Calling. — See,  generally,  post,  Po- 
i^ice;  Power. 

Police  Regulation  of  Trade,  Occupation  or  Business. — See,  generally, 
post.  Police  Power.  See,  also,  ante,  "Regulation  of  Business,  Trade.  Occupa- 
tion or  Profession,"  VII,  B,  3,  et  seq. ;  "Privileges  and  Immunities  Defined," 
XVII,  A,  3,  b,  (3),  (a);  "Police  Powers  Remain  Unrestricted,"  XVII,  A,  3, 
b,   (2),   (c). 

(o)  Equal  Protection  of  the  Laws;  Equal  Taxation,  etc. — See,  generally, 
ante,  Civie  Rights,  p.  236 ;  post,  Taxation.  See,  also,  ante,  "Equal  Protec- 
tion of  the  Laws;    Class  Legislation,"  VII,  et  seq. 

Discriminating  against  Nonresidents  in  Character  of  Process  Served. 
— See  note  65a. 

Abolishing  Doctrines  of  Fellow  Servants,  Comparative  Negligence, 
Contributory  Negligence,  etc. — See  ante,  "Abolishing  the  Doctrine  of  Fel- 
low Servants,"  VII,  B,  3,  i;  "x\bolishing  the  Doctrine  of  Comparative  and  Con- 
tributory Negligence,"  VII,  B,  3,  i  ^.  See,  also,  post,  Feelow  Servants; 
Master  and  Servant  ;    Poeice  Power. 


sory  self-incrimination  is  what  is  de- 
scribed as  a  fundamental  right  belonging 
to  all  who  live  under  a  free  government, 
and  incapable  of  impairment  by  legisla- 
tion or  judicial  decision,  it  is  so  far  as 
the  states  are  concerned,  a  fundamental 
right  inherent  in  state  citizenship,  and 
is  a  privilege  or  immunity  of  that  citizen- 
ship only."  Twining  v.  New  Jersey,  211 
U.  S.  78,  97,  53  L.  Ed.  97,  29  S.  Ct.  14. 

486-55a.  Access  to  all  the  courts — Re- 
moval of  causes. — See,  also,  post,  RE- 
MOVAL OF  CAUSES.  Herndon  v.  Chi- 
cago, etc.,  R.  Co.,  218  U.  S.  135,  54  L. 
Ed.  970,  30  S.  Ct.  633. 

Under  the  Missouri  Act  of  March  7, 
1907,  a  domestic  railway  company  might 
bring  an  action  in  the  federal  court,  or, 
in  a  proper  case,  remove  one  thereto, 
without  being  subject  to  forfeiture  of  its 
right  to  do  business,  or  the  imposition  of 
the  penalties  provided  for  in  the  act;  but, 
as  to  foreign  railway  companies,  the 
statute  provided  that  in  case  they  should 
bring  a  suit  in  the  federal  courts,  or  re- 
move it  from  the  state  courts  to  the  federal 
courts,  their  right  to  do  business  in  the 
state  should  be  forfeited  and  that  they 
should  be  subject  to  the  penalties  pre- 
scribed in  the  act.  Held,  that  as  to  a 
foreign  corporation  which  had  come 
within  the  state  and  complied  with  its 
laws,  and  which  had  acquired,  under  the 
sanction  of  the  state,  a  large  amount  of 
property    within    its    borders,    and    which 

12    U    S    Enc— 23  353 


had  thus  become  a  person  within  the 
state,  within  the  meaning  of  the  consti- 
tution and  entitled  to  its  protection,  the 
statute  was  unconstitutional  as  denying 
the  equal  protection  of  the  laws.  Hern- 
don V.  Chicago,  etc.,  R.  Co.,  218  U.  S. 
135,  54  L.  Ed.  970,  30  S.  Ct.  633;  Roach 
V.  Atchinson,  etc.,  R.  Co.,  218  U.  S.  159,  54 
L.  Ed.  978,  30  S.  Ct.  639;  see,  also,  West- 
ern Union  Tel.  Co.  v.  Coleman,  216  U. 
S.  1,  54  L.  Ed.  355,  30  S.  Ct.  190;  Pull- 
man Co.  V.  Coleman,  216  U.  S.  56,  54 
L.  Ed.  378,  30  S.  Ct.  232;  Ludwig  v.  West- 
ern Union  Tel.  Co.,  216  U.  S.  146,  54  L. 
Ed.  423,  30  S.  Ct.  280;  Southern  R.  Co. 
V.  Greene,  216  U.  S.  400,  54  L.  Ed.  536,  30 
S.     Ct.     287. 

487-65a.  Discriminating  against  non- 
residents in  character  of  process  served. 
— Nonresident  owners  of  lands  within 
the  levee  district  created  by  Act  Ark. 
Feb.  15,  1893,  p.  31,  are  not  denied  the 
privileges  and  immunities  of  citizens  of 
the  United  States  because  section  11  of 
that  act,  as  amended  in  Act  Ark.  April  2, 
1895,  p.  88,  §  1,  while  requiring  personal 
service  of  summons  on  resident  owners 
or  occupants  for  at  least  20  days  before 
rendering  a  decree  of  sale  for  unpaid 
levee  taxes,  provides  for  constructive 
service  by  publication  upon  nonresident 
owners  of  only  4  weeks.  Decree  (1905) 
85  S.  W.  252,  74  Ark.  174,  affirmed.  Bal- 
lard V.  Hunter,  204  U.  S.  241,  51  L.  Ed. 
461,  27   S.   Ct.   261. 


487-496 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


In  Criminal  Procedure — Mode  of  Trying  Issue  of  Former  Conviction. 

— See  note  65b. 

XVIII.  Protection  to  Persons  Accused  of  Crime. 

A.    Persons    Protected — 2.    Re;side:nts    in    the:    Territories. — Philippine. 
Bill  of  Rights.— By  act  of  congress  of  July  1,  1902  (32  Stat,  at  L.  691,  chap. 
1369)  congress  undertook  to  enact  for  the  inhabitants  of  the  Philippine  Islands 
a  bill  of  rights,  the  provisions  of  which  are  taken,  substantially,   from  the  bill 
of  rights  of  the  federal  constitution.^^'' 

D.  Requirement  as  to  Presentment  or  Indictment  in  Capital  and  In- 
famous Cases — 1.  General  Nature  and  Purpose  of  Requirement. — See 
note  90. 

2.    Not  a  Restriction  upon  the  States. — See  note  91. 

4.  Persons  Protected^ — c.  Reddents  ivithin  the  Territories. — The  require- 
ment of  the  fifth  amendment  to  the  federal  constitution  that  infamous  crimes 
must  be  presented  by  indictment,  has  no  application  to  the  Philippine'  Islands, 
nor  is  there  any  such  requirement  in  the  Philippine  Act  of  July  1,  1902. ^^^ 

E.  Right  to  Be  Informed  of  Nature  and  Cause  of  Accusation — 1.  Sixth 
Amendment  Not  a  Limitation  upon  State  Power. — See  note  7. 

F.  Right  to  Confront  Accusers  and  Witnesses — 1.  Provision  Not  Ap- 
plicable TO  Trials  in  State  Courts. — See  note  20. 

2.  General  Object  and  Purpose  oe  the  Constitutional  Guaranty. — ► 
See  note  21. 


487-65b.  In  criminal  procedure — Mode 
of    trying    issue    of    former    conviction. — 

None  of  the  privileges  or  immunities  of 
a  former  convict  as  a  citizen  of  the 
United  States  are  abridged  by  bringing 
him,  after  conviction,  before  the  court 
of  another  county  in  a  separate  proceed- 
ing instituted  conformably  to  W.  Va. 
Code,  chap.  165,  §§  1-5,  by  information 
charging  him  with  prior  convictions 
which  were  not  alleged  in  the  indictment 
on  which  he  was  last  tried  and  convicted, 
and,  on  the  finding  of  the  jury  that  he 
was  the  former  convict,  sentencing  him 
to  the  additional  punishment  which  chap. 
152,  §§  23,  24,  in  such  cases  prescribes. 
Graham  v.  West  Virginia,  224  U.  S.  616, 
56    L.    Ed.   917,   32   S.   Ct.   583. 

490-81a.  Residents  in  the  territory — 
Philippine  bill  of  rights. — Dowdell  v. 
United  States.  221  U.  S.  325,  55  L.  Ed. 
753,  31  S.  Ct.  590;  Kepner  v.  United 
States,  195  U.  S.  100,  49  L.  Ed.  114,  24 
S.    Ct.    797. 

Requirement  as  to  presentment  by  in- 
dictment.— See  post,  "Residents  within 
the  Territories,"  XVIII,  D,  4,  c. 

492-90.  Requirement  as  to  presentment 
or  indictment — Names  of  witnesses  be- 
fore grand  jury. — Neither  the  Sixth 
Amendment  to  the  federal  constitution, 
nor  U.  S.  Rev.  Stats.,  §  829,  U.  S.  Comp. 
Stats.,  1901,  p.  636,  accords  to  the  ac- 
cused the  right  to  be  apprised  of  the 
names  of  the  witnesses  who  appeared  be- 
fore the  grand  jury.  Wilson  t'.  United 
States,  221  U.  S.  361,  55  L.  Ed.  771,  31  S. 
Ct.    538. 


492-91.      Not     a     restriction     upon     the 

states.— Hunter  v.  Pittsburgh,  207  U.  S. 
161,  52  L.  Ed.  151,  28  S.  Ct.  40;  Ughbanks 
V.  Armstrong,  208  U.  S.  481,  52  L.  Ed. 
582,   28    S.    Ct.    372. 

492-93a.  Residents  within  the  territo- 
ries.— Dowdell  V.  United  States,  221  U.  S. 
325,   55   L.    Ed.   753,   31   S.    Ct.   590. 

495-7.  Not  a  limitation  upon  the  pow- 
ers of  the  states. — Ughbanks  v.  Arm- 
strong, 208  U.  S.  481,  52  L.  Ed.  582,  28 
S.    Ct.   372,   and    cases    cited. 

496-20.  Right  to  confront  accusers  and 
witnesses — Provision  not  applicable  to 
state  courts. — Ughbanks  v.  Armstrong, 
208  U.   S.  481,  52  L.   Ed.  582,  28  S.   Ct.  372. 

496-21.  General  object  and  purpose  of 
guaranty — Tn  Philippine  Bill  of  Rights. — 
Section  5  of  the  Act  of  Congress  of  July 
1,  1902  (32  Stat,  at  L.  691,  chap.  1369), 
embodying  the  so-called  Philippine  bill 
of  rights  provides:  "That  in  all  criminal 
prosecutions  the  accused  shall  enjoy  the 
right  to  be  heard  by  himself  and  counsel, 
*  *  *  to  have  a  speedy  and  public 
trial,  to  meet  the  witnesses  face  to  face, 
etc."  This  is  substantially  the  provision 
of  the  6th  amendment  of  the  constitution 
of  the  United  States,  which  provides  that 
the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial,  and  to  be  con- 
fronted with  the  witnesses  against  him. 
This  provision  of  the  statute  intends  to 
secure  the  accused  in  the  right  to  be 
tried,  so  far  as  facts  provable  by  wit- 
nesses are  concerned,  by  only  such  wit- 
nesses as  meet  him  face  to  face  at  the 
trial,    who    give    their    testimony    in    his 


354 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


497-500 


4.  Exceptions  and  Limitations  to  Constitutionai.  Guaranty — a.  Gen- 
erally.— See  note  26. 

c.  Specific  Exceptions  and  Limitations — (6)  Names  of  Witnesses  Appearing 
before  Grand  Jury. — Neither  the  sixth  amendment  to  the  federal  constitution, 
nor  U.  S.  Rev.  Stat.,  §  829,  U.  S.  Comp.  Stat.  1901,  p.  636,  accords  the  right 
to  the  accused  to  be  apprised  of  the  names  of  the  witnesses  who  appeared  before 
the  grand  jury.^^"^ 

(7)  Upon  Suggestion  of  Diniinution  of  Record. — The  right  of  confrontation 
is  not  denied  to  the  accused  in  a  criminal  case  by  the  amendment  of  the  record 
in  the  appellate  court  by  ordering  the  judge  and  the  clerk  of  the  court  below 
to  supply  omitted  parts  upon  a  suggestion  of  diminution  made  in  the  appellate 
court.39'' 

(8)  Waiver  of  Consent. — The  right  of  confrontation  secured  by  the  Philip- 
pine Civil  Government  Act  is  in  the  nature  of  a  privilege  extended  to  the  ac- 
cused, rather  than  a  restriction  upon  him,  and  he  is  free  to  assert  it  or  waive  it, 
as  to  him  may  seem  advantageous.^^^ 

G.  Right  to  Speedy  Trial — 2.  Under  the  Constitution — c.  Implies  the 
Right  to  a  Trial  Itself. — Rights  of  Aliens. — See,  generally,  ante.  Aliens,  p. 
18.  See,  also,  ante,  "Generally  as  to  International  Relations ;  Determination 
of  Rightful  Sovereign  or  Government,"  VI,  D,  3,  d,  (3),  (c),   (cc). 


presence,  and  give  to  the  accused  an  op- 
portunity of  cross-examination.  It  was 
intended  to  prevent  the  conviction  of  the 
accused  upon  depositions  or  ex  parte  af- 
fidavits, and  particularly  to  preserve  the 
right  of  the  accused  to  test  the  recollec- 
tion of  the  witness  in  the  exercise  of  the 
right  of  cross-examination.  Dowdell  v. 
United  States,  221  U.  S.  325,  55  L.  Ed. 
753,  31  S.  Ct.  590;  Mattox  v.  United 
States,  156  U.  S.  237,  242,  39  L.  Ed.  409, 
15  S.  Ct.  337;  Kirby  v.  United  States,  174 
U.  S.  47,  55,  43  L.  Ed.  890,  19  S.  Ct.  575; 
2  Wigmore,  Ev.,  §§  1396,  1397. 

497-26.  Exceptions  and  limitations — 
Generally. — But  this  general  rule  of  law 
embodied  in  the  constitution,  and  carried 
by  statute  to  the  Philippines,  and  in- 
tended to  secure  the  right  of  the  accused 
to  meet  the  witnesses  face  to  face,  and  to 
thus  sift  the  testimony  produced  against 
him,  has  always  had  certain  well-recog- 
nized exceptions.  Dowdell  v.  United 
States,  221  U.  S.  325,  55  L.  Ed.  753,  31 
S.   Ct.    590. 

500-39a.  Names  of  witnesses  appearing 
before  grand  jury. — Wilson  v.  United 
States,  221  U.  S.  361,  55  L.  Ed.  771,  31 
S.    Ct.    538. 

500-39b.  Upon  suggestion  of  diminution 
of  the  record. — Dowdell  v.  United  States, 
221  U.  S.  325,  55  L-  Ed.  753,  31  S.  Ct.  590. 

The  rights  of  the  accused,  under  the 
Philippine  Islands  Bill  of  Rights  of  July 
1,  1902  (Act  July  1,  1902,  c.  1369,  §  10),  32 
Stat.  695,  to  meet  the  witnesses  face  to 
face,  was  not  infringed  by  the  action  of 
the  supreme  court  of  the  Philippine  Is- 
lands, upon  suggestion  of  diminution  of 
the  record,  in  ordering  the  judge  and 
clerk  of  the  court  below  to  supply  the  fail- 
ure of  the  record  to  show  whether  the  ac- 


cused pleaded  to  the  complaint,  and  were 
present  in  court  during  the  entire  trial. 
Dowdell  V.  United  States,  221  U.  S.  325,  55 
L.  Ed.  753,  31  S.  Ct.  590. 

500-39C.  Waiver  of  consent. — Diaz  v. 
United  States,  223  U.  S.  442,  56  L.  Ed.  500, 
32  S.  Ct.  250. 

Where  accused  offers  record  of  previous 
trial  in  evidence,  same  admissible  gener- 
ally.— The  right  "to  meet  the  witnesses 
face  to  face,"  secured  to  one  accused  of 
crime  in  the  Philippine  Islands  by  the  Act 
of  July  1,  1902,  §  5,  was  not  infringed  by 
resting  a  judgment  of  conviction  for  homi- 
cide in  part  upon  the  testimony  produced 
before  the  justice  of  the  peace  at  a  pre- 
vious trial  for  the  assault  and  battery 
from  which  the  death  afterwards  ensued, 
and  at  a  preliminary  investigation  of  the 
homicide  charges,  where  the  record  of 
these  proceedings  were  offered  in  evidence 
by  the  accused  without  qualification  or 
restriction,  and  included  some  testimony 
favorable  to  him.  Diaz  v.  United  States, 
223  U.  S.  442,  56  L.  Ed.  500,  32  S.  Ct.  250. 

In  these  circumstances  the  testimony 
was  rightly  treated  as  admitted  generally, 
as  applicable  to  any  issue  which  it  tended 
to  prove,  and  as  equally  available  to  the 
government  and  the  accused.  Diaz  v. 
United  States,  223  U.  S.  442,  56  L.  Ed.  500, 
32  S.  Ct.  250. 

True,  the  testimony  could  not  have  been 
admitted  without  the  consent  of  the  ac- 
cused, first,  because  it  was  within  the  rule 
against  hearsay,  and  second,  because  the 
accused  was  entitled  to  meet  the  witnesses 
face  to  face.  But  it  was  not  admitted 
without  his  con.sent,  but  at  his  request,  for 
it  was  he  who  offered  it  in  evidence.  Diaz 
V.  United  States,  223  U.  S.  442,  56  L.  Ed. 
500,  32  S.  Ct.  250. 


355 


504-505 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


I.  Assistance  of  Counsel. — Right  to  Be  Heard  in  Person  and  by  Coun- 
sel as  Requiring  Person  of  Accused  at  Trial. — See  post,  Criminal  Law. 

L.  Self-incrimination — 2.  Provision  in  thu  Fifth  Ame^ndmient  Not  Ap- 
plicable: TO  THE  States. — Not  a  Privilege  or  Immunity  Protected  by  the 
Fourteenth  Amendment. — Exemption  from  self-incrimination,  though  se- 
cured as  against  federal  action  by  U.  S.  Const.,  fifth  amendment,  is  not  one  of 
the  fundamental  rights  of  national  citizenship,  so  as  to  be  included  among  the 
privileges  and  immunities  of  citizens  of  the  United  States  which  the  states  are 
forbidden  by  the  fourteenth  amendment  to  abridge. ^"^^ 

3.  Who  May  Invoke  Benefit  op  This  Provision — a.  Witness  Need  Not 
Be  a  Party  Defendant. — Not  Necessary  That  Prosecution  Should  Have 
Been  Instituted. — The  privilege  against  self-incrimination  holds  that  although 
the  pursuit  of  the  person  required  to  produce  the  incriminating  books  or  docu- 
ments has  not  yet  begun,  it  is  the  incriminating  tendency  of  the  disclosure,  and 
not  pendency  of  a  prosecution  against  the  witness,  upon  which  the  right  de- 
pends.^" "^ 

b.  Distinction  hetzveen  Natural  Persons  and  Corporations. — A  private  cor- 
poration can  not  resist  production  of  its  books  and  papers  upon  the  ground  of 
self-incrimination.  Although  the  object  of  the  inquiry  may  be  to  detect  the 
abuses  it  has  committed,  to  discover  its  violations  of  law,  and  to  inflict  punish- 
ment by  forfeiture  of  franchises  or  otherwise,  it  must  submit  its  books  and 
papers  to  duly  constituted  authority  when  demand  is  suitably  made.  This  is 
involved  in  the  reservation  of  the  visitorial  power  of  the  state,  and  in  the  au- 
thority of  the  national  government  where  the  corporate  activities  are  in  the  do- 
main subject  to  the  powers  of  congress. ^^^ 


504-66a.  Not  applicable  to  the  state — Not 
a  privilege  or  immunity  protected  by  the 
fourteenth  amendment. — Twining  z'.  New 
Jersey,  211  U.  S.  78,  53  L.  Ed.  07,  29  S. 
Ct.  14. 

504-67a.  Not  necessary  that  prosecution 
should  have  been  instituted. — Wilson  v. 
United  States,  221  U.  S.  361,  55  L.  Ed.  771, 
31  S.  Ct.  538;  Counselman  v.  Hitclicock, 
142  U.  S.  547,  35  L.  Ed.  1110,  12  S.  Ct.  195. 

505-68a.  Distinction  between  natural 
persons  and  corporations. — Wilson  v. 
United  States,  221  U.  S.  361,  55  L.  Ed.  771, 
31  S.  Ct.  538;  Hale  v.  Henkel,  201  U. 
S.  43,  50  L.  Ed.  652,  26  S.  Ct.  370;  Bal- 
timore, etc.,  R.  Co.  V.  Interstate  Commerce 
Comm.,  221  U.  S.  612,  55  L.  Ed.  878,  31  S. 
Ct.  621;  Hammond  Packing  Co.  v.  Arkan- 
sas, 212  U.  S.  322,  349,  53  L.  Ed.  530,  29  S. 
Ct.  370. 

A  corporation  is  not  entitled,  under  the 
fourth  and  fifth  amendments  of  the  consti- 
tution of  the  United  States,  to  object  to 
the  admission  in  evidence  of  entries  from 
its  books.  As  to  this,  it  is  only  necessary 
to  refer  to  the  recent  decisions  of  the  su- 
preme court.  American  Lithographic  Co. 
V.  Werckmeister,  221  U.  S.  603,  55  L-  Ed. 
873,  31  S.  Ct.  676;  Hale  v.  Henkel.  201  U. 
S.  43,  50  L.  Ed.  652,  26  S.  Ct.  370;  Nelson 
V.  United  States,  201  U.  S.  92,  50  L.  Ed. 
673,  26  S.  Ct.  358;  Hammond  Packing  Co. 
V.  Arkansas,  212  U.  S.  322,  349,  53  L.  Ed. 
530,  29  S.  Ct.  370;  Wilson  v.  United  States, 
221  U.  S.  361,  55  L.  Ed.  771.  31   S.  Ct.  538. 

In    view    of    the    visitorial    powers  of    a 


state  over  corporations  doing  business 
within  its  borders  and  the  right  of  the  state 
to  know  whether  the  business  of  a  corpo- 
ration was  being  carried  on  in  a  lawful 
manner,  it  is  competent  for  the  state  to 
compel  the  production  of  the  books  and 
papers  of  the  corporation  in  an  investiga- 
tion to  ascertain  whether  the  laws  of  the 
state  have  been  complied  with.  And  of 
course  such  power  embraces  the  author- 
ity to  require  the  giving  of  testimony  by 
the  officers,  agents  and  other  employees  of 
the  corporation  for  like  and  analogous 
purposes.  Hammond  Packing  Co.  v.  Ar- 
kansas, 212  U.  S.  322,  348,  53  L.  Ed.  530, 
29  S.  Ct.  370;  Consolidated  Rendering  Co. 
V.  Vermont,  207  U.  S.  541,  52  L.  Ed.  327, 
28  S.  Ct.  178. 

Where  books  never  within  the  states. — 
The  rule  is  not  different  because  the  books 
of  the  foreign  company,  which  were  called 
for,  may  not  have  been  at  any  time  kept 
within  the  state.  Hammond  Packing  Co. 
V.  Arkansas,  212  U.  S.  322,  348,  53  L.  Ed. 
530,  29  S.  Ct.  370. 

Due  process — Proof  relevant  to  defense 
against  claim  asserted  by  state. — There  is 
no  merit  in  the  contention  that  the  order 
to  produce  was  wanting  in  due  process  be- 
cause it  v/as  made  in  a  pending  suit  and 
sought  to  elicit  proof  not  only  as  to  the 
liability  of  the  company,  but  also  the  proof 
in  the  possession  of  the  company  relevant 
to  its  defense  to  the  claim  which  the  state 
asserted.  As  these  subjects  were  within 
the    scope  of  the    visitorial  power,  of    the 


356 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


505 


Unreasonable   Searches    and    Seizures. 

ZURES. 


-See    post,   Searches  and  Sei- 


hy2.  As  Dependent  upon  Capacity  in  Which  Books  Are  Held;  Right  of  Cor- 
porate Officers  to  Refuse  to  Produce  Corporate  Books. — The  physical  custody  of 
incriminating  documents  does  not  of  itself  protect  the  custodian  against  their 
compulsory  production.  The  question  still  remains  with  respect  to  the  nature 
of  the  documents  and  the  capacity  in  which  they  are  held.  It  may  appear  that 
they  are  of  a  character  which  subjects  them  to  the  scrutiny  demanded  and  that 
the  custodian  has  voluntarily  assumed  a  duty  which  overrides  his  claim  of  priv- 
ilege.^^^  The  fundamental  ground  of  decision  in  this  class  of  cases  is  that 
where,  by  virtue  of  their  character  and  the  rules  of  law  applicable  to  them,  the 
books  and  papers  are  held  subject  to  examination  by  the  demanding  authority, 
the  custodian  has  no  privilege  to  refuse  production  although  their  contents  tend 


state  and  concerning  which  it  had  the 
right  to  be  fully  informed,  the  mere  inci- 
dent or  purpose  for  which  the  lawful 
power  was  exerted  affords  no  ground  to 
deny  its  existence.  Hammond  Packing 
Co.  V.  Arkansas,  212  U.  S.  322,  348,  53  L. 
Ed.  530,  29  S.  Ct.  370. 

In  Consolidated  Rendering  Co.  v.  Ver- 
mont, 207  U.  S.  541,  556,  52  L.  Ed.  327,  28  S. 
Ct.  178,  the  books  and  papers  were  required 
for  an  investigation  before  a  grand  jury 
concerning  supposed  misconduct  of  the 
corporation.  The  power  to  compel  the 
production  to  ascertain  whether  wrong  had 
been  done,  in  the  nature  of  things,  as  the 
greater  includes  the  less,  is  decisive  as  to 
the  right  to  exact  the  production  for  tbe 
purpose  of  proof  in  a  pending  cause.  See 
Hale  V.  Henkel,  201  U.  S.  43,  50  L.  Ed. 
652,  26  S.  Ct.  370.  H,  as  was  in  that  case 
decided,  the  power  of  visitation  could  be 
exercised,  even  although  it  might  lead  to 
the  production  of  incriminating  evidence 
merely  because  the  order  to  produce  in 
this  case  called  for  evidence  in  the  posses- 
sion of  the  corporation  relevant  to  its  de- 
fense did  not  afifect  the  validity  of  the  or- 
der. Hammond  Packing  Co.  v.  Arkansas, 
212  U.  S.  322,  348.  53  L.  Ed.  530,  29  S.  Cr. 
370. 

Under  subpoena  duces  tecum. — A  corpo- 
lation  can  not  object,  on  the  ground  of  a 
constitutional  protection  against  self-crim- 
ination, to  the  admissibility  in  evidence 
against  it,  in  an  action  to  recover  a  stat- 
utory penalty,  of  the  entries  in  the  cor- 
porate books,  produced  by  a  corporate 
officer  in  obedience  to  a  subpoena  duces 
tecum.  American  Lithographic  Co.  v. 
Werckmeister,  221  U.  S.  603,  55  L-  Ed.  873, 
31  S.  Ct.  676,  affirming  judgn.'ent  (1908^ 
165   F.  426,  91   C.   C.  A.  376. 

Same — Before  grand  jury. — A  corpora- 
tion can  not  resist,  upon  the  ground  of  the 
constitutional  protection  against  self- 
crimination,  the  compulsory  production  oi 
its  books  and  papers  before  the  grand 
jury  under  a  subpoena  duces  tecum.  Wil- 
son V.  United   States,  221  U.  S.  361,  55   L. 


Ed.  771,  31  S.  Ct.  538. 

Same — Same,  where  injury  not  directed 
against  corporation. — Xor  is  it  an  answer 
to  say  that  in  the  present  case  the  inquiry 
before  the  grand  jury  was  not  directed 
against  the  corporation  itself.  The  appel- 
lant had  no  greater  right  to  withhold  the 
books  by  reason  of  the  fact  that  the  cor- 
poration was  not  charged  with  criminal 
abuses.  Wilson  v.  United  States,  221  U. 
S.  361,  55  L.  Ed.  771,  31  S.  Ct.  538. 

Verified    reports    by    interstate    carriers 

under    act    prescribing    hours    of    labor 

Carriers  subject  to  the  Act  of  March  4, 
1907,  regulating  hours  of  labor  of  employ- 
ees, can  not  claim  a  privilege  against  self- 
crimination  to  justify  the  refusal  to  com- 
ply with  an  order  of  the  interstate 
commerce  commission,  requiring  the  sec- 
retary or  similar  officer  to  make  monthly 
reports  under  oath,  showing  instances 
where  employees  subject  to  the  act  have 
rendered  excess  service,  and  giving  the 
cause  and  explanatory  facts,  if  any,  or 
where  there  has  been  no  excess  service, 
to  m.ake  a  separate  oath  to  that  effect,  in 
lit'U  of  the  form  to  be  used  in  detailing  ex- 
cess service.  Baltimore,  etc.,  R.  Co.  v.  In- 
terstate Commerce  Comm.,  221  U.  S.  612, 
55  L.   Ed.  878,  31   S.   Ct.  621. 

Where  corporation  is  in  contempt. — The 
objection  that  incriminating  books  and 
papers  were  required  to  be  produced  be- 
fore a  grand  jury  under  Vermont  Act  of 
October  9,  1906,  without  extending  immu- 
nity from  criminal  prosecution,  is  not  avail- 
able to  a  corporation  which  has  been  fined 
for  contempt  in  failing  and  absolutely  re- 
fusing to  produce  any  of  the  books  and 
papers  called  for,  with  some  unimportant 
exceptions,  and  has  thus  prevented  the 
court  from  inquiring  into  the  validity  ol 
the  objection.  Consolidated  Rendering 
Co.  V.  Vermont,  207  U.  S.  541,  52  L.  Ed. 
327,  28  S.   Ct.   178. 

505-69a.  As  dependent  upon  capacity  in 
which  books  are  held. — Wilson  v.  United 
States.  221  U.  S.  361,  55  L.  Ed.  771.  31  S. 
Ct.  538. 


357 


505 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


to  incriminate  him.  In  assuming  their  custody  he  has  accepted  the  incident  obli- 
gation to  permit  inspection. '^^'' 

Right  of  Corporate  Officers  to  Refuse  to  Produce  Books  and  Papers. 

— An  ofificer  of  a  corporation  can  not,  upon  the  ground  that  it  may  tend  to  in- 
criminate him,  assert  a  personal  right  to  retain  the  corporate  books  and  papers 
against  any  demand  of  government  which  the  corporation  is  bound  to  recognize; 
and  it  is  immaterial,  in  such  case,  that  he  wrote  or  signed  the  entries  or  letters 
which  he  is  called  upon  to  produce.^'^*^  • 


505-69b.  Same. — Wilson  v.  United  States, 
221  U.  S.  ?,C,\.  53  L.  Ed.  771,  31  S.  Ct.  538. 

505-69C.  Right  of  corporate  officers  to 
refuse  to  produce  books  and  papers. — Wil- 
son V.  United  States,  221  U.  S.  361,  55  L. 
Ed.  771,  31  S.  Ct.  538;  Dreier  v.  United 
States,  221  U.  S.  394,  55  L.  Ed.  784,  31  S. 
Ct.  550. 

A  corporate  officer  can  not  urge  his  con- 
stitutional privilege  against  self-crimina- 
tion to  excuse  his  refusal  to  produce  the 
corporate  records  in  his  custody  before 
the  grand  jury  under  a  subpoena  duces  te- 
cum directed  to  him,  because  their  con- 
tents may  tend  to  incriminate  him.  Dreier 
z\  United  States,  221  U.  S.  394,  55  L.  Ed. 
784,  31   S.  Ct.  550. 

By  virtue  of  the  fact  that  they  were  the 
documents  of  the  corporation  in  his  cus- 
tody, and  not  his  private  papers,  he  was 
under  obligation  to  produce  them  when 
called  for  by  proper  process.  Wilson  v. 
United  States,  221  U.  S.  361,  55  L.  Ed.  771, 
31  S.  Ct.  538.  In  that  case  the  writ  was 
directed  to  the  corporation,  and  here  it 
was  addressed  to  the  custodian.  As  he 
had  no  privilege  with  respect  to  the  cor- 
porate books  and  papers,  it  was  his  duty 
to  obey.  Dreier  v.  United  States,  221  U. 
S.  394,  55  L.  Ed.  784,  31  S.  Ct.  550. 

The  privilege  against  self-crimination 
afiforded  by  U.  S.  Const.,  5th  Amend.,  does 
not  protect  the  officer  of  a  corporation  in 
resisting  the  compulsory  production  be- 
fore the  grand  jury  under  a  subpoena 
duces  tecum  directed  to  the  corporation, 
of  the  letter  press  copy  books  of  such 
corporation  in  his  possession,  because  the 
contents  thereof  may  tend  to  incriminate 
him,  even  though  the  inquiry  before  the 
grand  jury  was  not  directed  to  the  corpo- 
ration itself.  Wilson  v.  United  States,  221 
U.  S.  361,  55  L.  Ed.  771,  31  S.  Ct.  538. 

The  mere  fact  that  the  appellant  him- 
self wrote,  or  signed,  the  official  letters 
copied  into  the  corporate  books,  neither 
conditioned  nor  enlarged  his  privilege. 
Wilson  V.  United  States,  221  U.  S.  361,  55 
L.   Ed.  771,  31   S.   Ct.   538. 

He  could  assert  no  personal  right  to  re- 
tain the  corporate  books  against  any  de- 
mand of  government  which  the  corpora- 
tion was  bound  to  recognize.  Wilson  ir. 
United  States,  221  U.  S.  361,  55  L.  Ed.  771, 
31   S.  Ct.  538. 

The  appellant  held  the  corporate  books 
subject  to  the  corporate  duty.     If  the  cor- 


poration were  guiltj'  of  misconduct,  he 
could  not  withhold  its  books  to  save  it; 
and  if  he  were  implicated  in  the  violations 
of  law,  he  could  not  withhold  the  books 
to  protect  himself  from  the  effect  of  their 
disclosures.  The  reserved  power  of  the 
visitation  would  seriously  be  embarrassed, 
if  not  wholly  defeated  in  its  effective  exer- 
cise, if  guilty  officers  could  refuse  inspec- 
tion of  the  records  and  papers  of  the  cor- 
poration. No  personal  privilege  to  which 
they  are  entitled  requires  such  a  conclu- 
sion. It  would  not  be  a  recognition,  but 
an  unjustifiable  extention,  of  the  personal 
rights  they  enjoy.  They  may  decline  to 
utter  upon  the  witness  stand  a  single  self- 
incriminating  word.  They  may  demand  that 
any  accusation  against  them  individually 
be  established  without  the  aid  of  their  oral 
testimony  or  the  compulsory  production 
by  them  of  their  private  papers.  But  the 
visitorial  power  which  exists  with  respect 
to  the  corporation  of  necessity  reaches 
fhe  corporate  books,  without  regard  to 
the  conduct  of  the  custodian.  Wilson  v. 
United  States,  221  U.  S.  361.  55  L.  Ed.  771, 
31   S.  Ct.  538. 

Right  of  officer  of  interstate  carrier  to 
refuse  to  make  reports  under  hours  of  La- 
bor Act. — The  secretary  or  similar  officer 
of  a  carrier  subject  to  the  Act  of  March 
4,  1907,  regulating  hours  of  labor  of  em- 
ployees, can  not  claim  a  personal  privilege 
against  self-incrimination  to  justify  a  re- 
fusal to  comply  with  an  order  of  the  inter- 
state commerce  commission,  requiring 
such  official  to  make  monthly  reports  un- 
der oath,  showing  the  instances  where  em- 
ployees subject  to  the  act  have  rendered 
excess  service,  and  giving  the  cause  and 
explanatory  facts,  if  any,  or,  where  there 
has  been  no  excess  service,  to  make  a 
separate  oath  to  that  efifect,  in  lieu  of  the 
form  to  be  used  in  detailing  excess  serv- 
ice. Baltimore,  etc.,  R.  Co.  v.  Interstate 
Commerce  Conim.,  221  U.  S.  612,  55  L.  Ed. 
878,  31  S.  Ct.  621. 

The  transactions  to  which  the  required 
reports  relate  are  corporate  transactions, 
subject  to  the  regulating  power  of  con- 
gress. And,  with  regard  to  the  keeping 
of  suitable  records  or  corporate  adminis- 
tration, and  the  making  of  reports  of  cor- 
porate action,  where  these  are  ordered  by 
the  commission  under  the  authority  of 
congress,  the  officers  of  the  corporation, 
by  virtue  of  the  assumption  of  their  duties 


358 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


505-508 


Otherwise  as  to  Officer's  Private  Books  and  Papers. — The  privilege 
against  self-incrimination  protects  a  corporate  officer  against  the  compulsory  pro- 
duction of  his  private  books  and  papers,  although  they  may  have  been  actually 
written  by  another.'^ '^'^ 

As  Affected  by  Provision  against  Unreasonable  Searches  and  Seizures. 
— The  protection  against  unreasonable  searches  and  seizures  afforded  by  U.  S. 
Const.,  fourth  amendment,  can  not  ordinarily  be  invoked  to  justify  the  refusal 
of  an  officer  of  a  corporation  to  produce  its  books  and  papers  in  obedience  to  a 
subpoena  duces  tecum  issued  in  an  action  against  the  corporation  to  recover  a  stat- 
utory penalty.'' '"" 

c.  A  Personal  Privilege.— -Th^  testimonial  privilege  on  account  of  tendency 
to  incriminate  is  purely  personal,  and  can  be  claimed  only  by  the  witness  himself."**^ 

4.  /;;  What  Proceedings  Applicable. — See  ante.  "Distinction  between  Natural 
Persons  and  Corporations,"  XVIII,  L,  3,  b;  "As  Dependent  upon  Capacity  in 
Which  Books  Are  Held ;  Right  of  Corporate  Officers  to  Refuse  to  Produce  Cor- 
porate Books."  X\'III,  L,  3,  hy2  ;  post,  "What  Constitutes  a  \'iolation  of  the  Con- 
stitutional Principle,"  XVIII,  L,  5,  et  seq. 

5.  What  Constitutes  a  Isolation  of  the  Constitutional  Principle — b.  Seizure  or 
Compulsory  Production  of  Private  Books  and  Papers  to  Be  Used  in  Evidence. — 
See,  also,  post.  Searches  and  Seizures. 

Admissibility  of  Papers,  etc.,  Unlawfully  Seized.— See  note  82. 

c.  Compelling  Accused  tO  Stand  Up,  Walk  before  Jury,  etc. — The  protection 
against  self-incrimination  afforded  by  U.  S.  Const.,  Fifth  Amendment,  extends 
to  the  us^  against  the  accused  of  communications  extorted  from  him  by  phys- 
ical or  moral  compulsion,  but  not  to  evidence  obtained  from  the  exhibition  of  his 
person,  such  as  testimony  as  to  the  fit  of  a  blouse  which  he  was  forced  to  put 
on.^^^ 


as  such,  are  bound  by  the  corporate  obli- 
gation, and  can  not  claim  a  personal  priv- 
ilege in  hostility  to  the  requirement.  Bal- 
timore, etc.,  R.  Co.  V.  Interstate  Com- 
merce Comm.,  221  U.  S.  612,  55  L.  Ed.  878, 
31  S.  Ct.  621;  Wilson  v.  United  States,  221 
U.  S.  361.  55  L.  Ed.  771,  31  S.  Ct.  538. 

505-69d.  Otherwise  as  to  officer's  pri- 
vate books  and  papers. — Wilson  v.  United 
vStates.  221  U.  S.  361.  55  L-  Ed.  771,  31  S. 
Ct.  538;  Boyd  v.  United  States,  116  U.  S. 
616,  29  L.  Ed.  746,  6  8.  Ct.  524;  Ballmann 
V.  Fagin,  200  U.  S.  186,  195,  50  L.  Ed.  433, 
26  S.  Ct.  212. 

Where  one's  private  documents  would 
tend  to  incriminate  him,  the  privilege  ex- 
ists although  they  were  actually  written 
by  another  person.  And  where  an  officer 
of  a  corporation  has  possession  of  corpo- 
rate records  which  disclose  his  crime,  there 
is  no  ground  upon  which  it  can  be  said 
that  he  will  be  forced  to  produce  them  if 
the  entries  were  made  by  another,  but  may 
withhold  them  if  the  entries  were  made 
by  himself.  The  books  are  no  more  his 
private  books  in  the  latter  case  than  in 
the  former.  Wilson  v.  United  States,  221 
U.   S.  361,  55  L.   Ed.  771,   31    S.   Ct.   538. 

505-69e.  As  affected  by  provision  against 
unreasonable  searches  and  seizure  s. — 
American  Lithographic  Co.  v.  Werckme- 
ister,  221  U.  S.  603,  55  L.  Ed.  873,  31  S.  Ct. 
676.  See  post,  SEARCHES  AND  SEI- 
ZURES. 


505-70a.  A  personal  privilege. — Consoli- 
dated Rendering  Co.  v.  Vermont,  207  U. 
S.  541,  52  L.  Ed.  327,  28  S.  Ct.  178,  affirm- 
ing  80    Vt.    55,    66   Atl.    790. 

With  respect  to  corporate  officers,  it  is 
sufficient  to  say  that  the  privilege  guar- 
anteed to  them  by  this  amendment  is  a 
personal  one,  which  can  not  be  asserted 
on  their  behalf  by  the  corporation.  Balti- 
more, etc.,  R.  Co.  V.  Interstate  Commerce 
Comm.,  221  U.  S.  612,  55  L.  Ed.  878,  31 
S.  Ct.  621. 

508-82.  Admissibility  of  papers  unlaw- 
fully seized. — Constitutional  rights  of  a 
corporate  defendant  against  self-incrimi- 
nation and  unlawful  searches  and  seizures 
in  an  action  for  the  forfeiture  of  infring- 
ing copies  of  a'  painting  protected  by 
copj'right,  are  not  violated  by  the  seizure 
and  admission  in  evidence  of  the  infring- 
ing copies  not  by  the  admission  in  evi- 
dence of  the  replevin  proceedings  under 
which  they  were  seized,  over  the  objec- 
tion that,  by  such  proceedings,  rights  un- 
der the  fourth  and  fifth  amendments  to 
the  federal  constitution  were  invaded. 
American  Tobacco  Co.  v.  Werckmeister, 
207    U.    S.  284,   52   L.    Ed.  208,  28   S.   Ct.   72. 

508-84a.  Compelling  accused  to  stand 
up,  walk  before  jury,  etc.— Fit  of  blouse. 
—Holt  V.  United  States,  218  U.  S.  245,  54 
L.  Ed.  1021,  30  S.  Ct.  2. 


3.59 


508-509 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


Where  Order  Goes  Too  Far. — When  he  is  exhibited,  whether  voluntarily 
or  by  order,  and  even  if  the  order  goes  too  far,  the  evidence,  if  material,  is  com- 
petent.84'' 

cy2.  Compelling  Bankrupt  to  Produce  Books  and  Papers. — Requiring  a  bank- 
rupt to  deposit  his  books  of  account  in  the  office  of  the  receiver,  there  to  remain 
in  the  custody  of  the  bankrupt,  who  is  to  afiford  the  receiver  free  opportunity  to 
inspect  them,  the  receiver  to  use  and  permit  them  to  be  used  only  for  the  pu*rpose 
of  the  civil  administration  of  the  bankrupt  estate,  and  not  for  any  criminal  pro- 
ceeding, is  a  proper  exercise  of  the  authority  of  the  bankruptcy  court,  and  does 
not  compel  the  bankrupt  to  be  a  witness  against  himself  in  a  criminal  case  in  the 
constitutional  sense,  although  the  knowledge  gained  from  the  books  may  be  used 
to  procure  other  evidence  for  use  against  him  in  a  criminal  prosecution.^'*'^ 

c^.  Compelling  Publicity  as  to  Tax  Returns. — The  provision  of  the  fifth 
amendment  protecting  persons  against  compulsory  self-incriminating  testimony 
was  not  intended  to  prevent  the  ordinary  procedure  of  requiring  tax  returns  to 
be  made  under  oath,  nor  is  that  guaranty  of  the  constitution  infringed  by  a 
statutory  provision  making  such  returns  public  documents  and  open  to  inspec- 
tion as  such.8-1'^ 

d.    Exceptions  and  Limitations — (4)    Immunity  Statutes. — See  notes  89,  91. 


508-84b.  Evidence  competent  even 
though  order  goes  too  far. — Holt  v.  United 
States,  218  U.  S.  245,  o-4  L.  Ed.  1021,  30 
S.  Ct.  2;  Adams  v.  New  York,  192  U. 
S.   585,  48  L.   Ed.  575,  24  S.   Ct.  372. 

Testimony  that  the  accused  put  on  a 
blouse,  and  that  it  fitted  him,  is  not  made 
inadmissible  on  the  question  whether  or 
not  it  belonged  to  him  because  the  pris- 
oner did  this  under  duress,  since,  even  as- 
suming that  such  evidence  was  improp- 
erly obtained,  it  is  still  competent.  Holt 
V.  United  States,  218  U.  S.  245,  54  L.  Ed. 
1021,  31   S.   Ct.  2. 

508-84C.  Compelling  bankrupt  to  pro- 
duce books  and  papers. — Matter  of  Harris, 
221  U.  S.  274,  55  L.  Ed.  732,  31  S.  Ct.  557. 

"If  the  order  to  the  bankrupt,  standing 
alone,  infringed  his  constitutional  rights, 
it  might  be  true  that  the  provisions  in- 
tended to  save  them  would  be  inadequate, 
and  that  nothing  short  of  statutory  im- 
munity would  suffice.  But  no  constitu- 
tional rights  are  touched.  The  question 
is  not  of  testimony,  but  of  surrender,  not 
of  compelling  the  bankrupt  to  be  a  wit- 
ness against  himself  in  a  criminal  case, 
present  or  future,  but  of  compelling  him 
to  yield  possession  of  ^property  that  he 
no  longer  is  entitled  to  keep.  If  a  trustee 
had  been  appointed,  the  title  to  the  books 
would  have  vested  in  him  by  the  express 
terms  of  §  70,  and  the  bankrupt  cou'd 
not  have  withheld  possession  of  what  he 
no  longer  owned,  on  the  ground  that 
otherwise  he  might  be  punished.  That 
is  one  of  the  misfortunes  of  bankruptcy 
if  it  follows  crime.  The  right  not  to  be 
compelled  to  be  a  witness  against  onese'f 
is  not  a  right  to  appropriate  property  that 
may  tell  one's  story.  As  the  bankruptc}' 
court  could  have  enforced  title  in  favor 
of  the  trustee,  it  could  enforce  possession 
ad  interim  in  favor  of  the  receiver.    Section 


2.  In  the  properly  careful  provision  to  pro- 
tect him  from  use  of  the  books  in  aid  of 
prosecution,  the  bankrupt  got  all  that  he 
could  ask."  Matter  of  Harris,  221  U.  S. 
274,  55  L.  Ed.  732,  31   S.   Ct.  557. 

508-84d.  Compelling  publicity  as  to  tax 
returns. — Flint  v.  Stone  Tracy  Co.,  220  U. 
S.  107,  55  L.  Ed.  389,  31  S.  Ct.  342.  See, 
also,  post,  SEARCHES  AND  SEI- 
ZURES. 

509-89.  Immunity  statutes. — Congress 
may  compel  the  giving  of  testimony  which 
may  serve  to  incriminate  the  witness,  pro- 
vided immunity  be  accorded  in  all  re- 
spects commensurate  with  the  guaranty 
of  U.  S.  Const.,  5th  Amend.,  against  self- 
crimination.  The  authorities  which  es- 
tablish this  elementary  proposition  are  too 
numerous  to  be  cited,  and  the  federal 
supreme  court  therefore  simply  refer  to 
a  few  of  the  leading  cases  on  the  subject. 
Glickstein  v.  United  States,  222  U.  S.  139, 
56  L.  Ed.  128,  32  S.  Ct.  71,  citing  Coun- 
selman  v.  Hitchcock,  142  U.  S.  547,  35  L. 
Ed.  1110,  12  S.  Ct.  195;  Brown  v.  Walker, 
161  U.  S.  591,  40  L.  Ed.  819,  16  S.  Ct. 
644;  Burrell  v.  Montana,  194  U.  S.  572, 
578,  48  L.  Ed.  1122,  24  S.  Ct.  787;  Jack  v. 
Kansas,  199  U.  S.  372,  50  L.  Ed.  234,  26 
S.  Ct.  73;  Ballmann  v.  Fagin,  200  U.  S. 
186,  195,  50  L.  Ed.  433,  26  S.  Ct.  212; 
Hale  V.  Henkel,  201  U.  S.  43,  66,  50  L. 
Ed.  652,  26  S.  Ct.  370:  Heike  v.  United 
States,  217  U.  S.  423,  54  L.  Ed.  821,  30 
S.   Ct.   539. 

Statutes  construed — Admissibility  of 
evidence  obtained  in  present  proceeding. 
— Entries  in  the  books  of  a  corporation 
defendant,  produced  in  obedience  to  a 
subpoena  duces  tecum,  were  not  rendered 
inadmissible  on  the  trial  by  U.  S.  Rev. 
Stat.,  §  860,  U.  S.  Comp.  Stat.  1901,  p. 
661,  providing  that  no  discovery  or  evi- 
dence   obtained    from   a   party   or   witness 


360 


Vol.  IV. 


COXSTITUTIOXAL  LAW. 


510-512 


Relates  Only  to  Past  Offenses. — The  immunity  which  must,  under  U.  S. 
Const.,  fifth  amendment,  be  accorded  to  a  witness  compelled  to  give  evidence 
against  himself,  relates  only  to  past  offenses,  and  need  not  exempt  the  witness 
from  prosecution  for  perjury  committed  when  so  testifying.^i*^ 

(5)  Waiver  of  Privilege. — If  the  privilege  of  a  witness  is  not  claimed  by  him 
it   will   be   waived. ^^^ 

Duty  to  Appear  in  Obedience  to  Subpoena  and  Claim  Privilege. — A  wit- 
ness can  not  refuse  to  obey  a  subpoena  and  still  claim  the  privilege  that  his  tes- 
timony, if  given,  would  incriminate  himself.     He  must  obey  the  subpoena  and 


by  means  of  a  judicial  proceeding  shall 
be  given  in  evidence  or  used  against  "him 
in  a  criminal  case,  or  in  a  proceeding  to 
enforce  a  penahy  or  forfeiture,  since  these 
provisions  manifestly  refer  to  a  case 
where,  in  some  prior  judicial  proceeding, 
a  discovery  had  been  made  or  testimony 
had  been  given,  and  the  evidence  so  ob- 
tained was  sought  to  be  used.  American 
Lithographic  Co.  v.  Werckmeister,  221  U. 
S.  603,  55  L.  Ed.  873,  31  S.  Ct.  676. 

Section  860,  since  repealed  by  the  Act 
of  May  7,  1910,  chap.  216  (36  Stat,  at  L. 
352),  was  a  re-enactment  of  §  1  of  the 
act  of  February  25,  1868,  chap.  13  (15  Stat. 
at  L.  37),  and  provided:  "Section  860. 
No  pleading  of  a  party,  nor  any  discovery 
or  evidence  obtained  from  a  party  or  wit- 
ness by  means  of  a  judicial  proceeding  in 
this  or  any  foreign  country,  shall  be  given 
in  evidence,  or  in  any  manner  used 
against  him  or  his  property  or  estate,  in 
any  court  of  the  United  States,  in  any 
criminal  proceeding,  or  for  the  enforce- 
ment of  any  penalty  or  forfeiture:  Pro- 
vided, that  this  section  shall  not  exempt 
any  party  or  witness  from  prosecution  and 
punishment  for  perjury  committed  in  dis- 
covering or  testifying  as  aforesaid."  This 
language  is  inapposite  here,  for  it  mani- 
festly refers  to  a  case  where,  in  some 
prior  judicial  proceeding,  discovery  had 
been  made  or  testimony  had  been  given, 
and  the  evidence  so  obtained  was  sought 
to  be  used.  The  object  of  the  statute  is 
sufficiently  plain.  It  was  intended  to  give 
immunity  as  to  subsequent  proceedings  to 
the  one  making  discovery  or  testifying. 
But  it  was  held  to  be  inadequate,  because 
it  was  not  coextensive  with  the  constitu- 
tional privilege.  American  Lithographic 
Co.  V.  Werckmeister,  221  U.  S.  603,  55  L. 
Ed.  873,  31  S.  Ct.  676;  Counselman  v. 
Hitchcock,  142  U.  S.  547,  564,  35  L.  Ed. 
1110,  12  S.  Ct.  195;  Brown  v.  Walker,  161 
U.  S.  591,  594,  40  L.  Ed.  819,  16  S.   Ct.  644. 

510-91.  Immaterial  that  witness  may  be 
indicted  and  compelled  to  plead  immunity. 
— A  shield  against  successful  prosecution. 
available  to  the  accused  as  a  defense,  and 
not  immunity  from  the  prosecutions  it- 
self, is  what  was  secured  by  the  Act  of 
February  25,  1903,  as  amended  by  the  Act 
of  June  30,  1906,  providing  that  no  person 
shall  be  prosecuted  or  subjected  to  any 
penalty    or    forfeiture    for   or    on    account 


of  any  transaction,  matter,  or  thing  con- 
cerning which  he  may  testify  or  produce 
evidence  in  any  proceeding,  suit,  or  pros- 
ecution under  the  Sherman  anti-trust  and 
interstate  commerce  acts.  Heike  x-. 
United  States,  217  U.  S.  423,  54  L.  Ed. 
821,   30    S.    Ct.    539. 

510-91a.  Relates  only  to  past  oflenses. 
— Glickstein  ^•.  United  States,  222  U.  S. 
139,  56  L.  Ed.  128,  32  S.  Ct.  71. 

The  immunity  clause  in  the  Bankrupt 
Act  of  July  1,  1898  (30  Stat,  at  L.  548, 
chap.  541,  U.  S.  Comp.  Stat.  1901,  p.  3425), 
§  7,  subd.  9,  that  no  testimony  given  by 
the  bankrupt  under  the  command  of  that 
section  shall  be  offered  in  evidence  against 
him  in  any  criminal  proceeding,  does  not 
bar  a  criminal  prosecution  for  perjury 
for  false  swearing  when  giving  such  tes- 
timony. Glickstein  v.  United  States,  222 
U.   S.  139,  56  L.  Ed.  128,  32  S.  Ct.  71. 

"The  argument  that  because  the  section 
does  not  contain  an  expression  of  the  res- 
ervation of  a  right  to  prosecute  for  per- 
jury in  harmony  with  the  reservations  in 
Rev.  Stat.  860,  and  the  Act  of  1893,  there- 
fore it  is  to  be  presumed  that  it  was  in- 
tended that  no  such  right  should  exist, 
we  think,  simply  begs  the  question  for 
decision,  since  it  is  impossible  in  reason 
to  conceive  that  congress  commanded  the 
giving  of  testimony,  and  at  the  same  time 
intended  that  false  testimony  might  be 
given  with  impunity,  in  the  absence  of  the 
most  express  and  specific  command  to 
that  effect."  Glickstein  v.  United  States, 
222   U.   S.   139,   56   L.   Ed.   128,   32   S.   Ct.  71. 

512-99a.  Waiver  of  privilege — By  fail- 
ure to  claim  same. — Consolidated  Render- 
ing Co.  :■.  \'ermont,  207  U.  S.  541,  52  L. 
Ed.  327,  28  S.  Ct.  178,  judgment  affirmed, 
80  Vt.  55,  66  Atl.  790.  See,  also,  post, 
"Witness  Taking  Stand  in  His  Own  Be- 
half; Cross-Examination,  Lnpeachment, 
etc.,"  XVin,  L.  5,  d,   (6). 

The  question  whether  a  witness  was 
privileged  to  refuse  to  answer  a  question 
on  the  ground  that  the  answer  might  in- 
criminate him  is  not  before  an  appellate 
court  for  review,  where  the  witness  did 
not  stand  on  his  privilege,  but  answered 
the  question.  Taylor  v.  United  States,  152 
F.  1,  81  C.  C.  A.  197,  judgment  affirmed. 
Taylor  v.  United  States,  207  U.  S.  120,  52 
L.   Ed.  130,  28  S.  Ct.  53. 


361 


512 


CONSTITUTIONAL  LAW. 


Vol.  IV. 


be  sworn  before  he  can  claim  his  privilege  from  giving  evidence. ^^'^ 

How  Privilege  Claimed. — In  a  contempt  proceeding  for  failure  to  obey  an 
order  to  produce  certain  books  and  papers,  where  the  petition  in  the  proceeding 
contains  no  allegation  relating  to  any  claim  of  privilege  or  any  testimony  that 
appears  to  be  incriminating,  the  question  of  privilege  on  account  of  the  tend- 
ency to  incriminate  can  not  be  raised  in  a  motion  to  dismiss  the  petition,  since 
a  motion  to  dismiss  is  not  issuable,  and  reaches  defects  only  which  appear  on 
the  face  of  the  pleading  affected  by  it.^^*^ 

Claim  to  Be  Made  by  Witness  in  Person,  etc. — A  witness  can  not  dis- 
obey a  subpoena  duces  tecum  and  refuse  to  produce  books  and  papers  when 
called  for,  and  still  claim  through  his  attorney  the  privilege  that  the  books  and 
papers,  if  produced,  would  tend  to  incriminate  him,  since  the  claim  of  privilege 
must  be  made  by  himself  under  oath  in  court,  and  the  claim  considered  and 
acted  upon  by  the  court  in  the  proceeding  for  which  the  witness  was  called. ^^"^ 

Same — Province  of  Court  and  Jury. — Whether  certain  testimony  sought 
is  privileged  must  be  determined  by  the  court. ^^'' 

(6)  Witness  Taking  Stand  in  His  Ozvn  Behalf;  Cross-Bxammation,  Im- 
peachment, etc. — See  note  1. 


512-99b.  Duty  to  appear  in  obedience  to 
subpoena  and  claim  privilege. — Consoli- 
dated Rendering  Co.  v.  Vermont,  207  U. 
S.  541,  52  L.  Ed.  327,  28  S.  Ct.  178,  judg- 
ment affirmed,   80  Vt.   55,   66  Atl.   790. 

Laws  1906,  p.  79,  No.  75,  provides  that 
any  corporation  doing  business  in  the 
state  shall,  upon  notice,  produce  before 
any  court,  grand  jury,  tribunal,  or  com- 
mission, acting  under  authority  of  the 
state,  all  books,  correspondence,  memo- 
randa, papers,  and  data  which  may  con- 
tain any  account,  reference,  or  information 
concerning  the  proceedings  or  subject  of 
inquiry  pending  before  the  body,  and 
which  may  at  any  time  have  been  made 
or  kept  within  the  state,  and  are  in  the 
custody  of  the  corporation,  or  which  re- 
late to  an}^  transaction  within  the  state 
or  with  parties  residing  or  having  a  place 
of  business  therein,  and  providing  for  the 
manner  of  service  of  the  order  to  produce 
and  for  punishment  for  contempt  in  case 
of  noncompliance.  An  order  was  issued 
under  this  statute  directing  a  corporation 
to  produce  before  a  grand  jury  certain 
books  and  papers,  and  for  a  violation  of 
this  order  proceedings  for  contempt  were 
instituted.  Held,  that  the  statute,  order, 
and  contempt  proceedings  were  not  con- 
trary to  Const.,  art.  10,  providing  that  no 
one  can  be  compelled  to  give  evidence 
against  himself,  since  the  company  was 
not  a  party,  nor  charged  with  any  crime, 
and  was  simply  summoned  to  appear  be- 
fore the  grand  jury  with  the  documentary 
evidence,  where  the  privilege  could  have 
been  claimed  if  desired.  In  re  Consoli- 
dated Rendering  Co.,  66  A.  790,  80  Vt.  55, 
judgment  affirmed.  Consolidated  Render- 
ing Co.  v.  Vermont,  207  U.  S.  541,  52  L. 
Ed.   .327,  28   S.    Ct.   178. 

512-99C.  How  privilege  claimed. — Con- 
solidated   Rendering   Co.   v.   Vermont,   207 


U.  S.  541,  52  L.  Ed.  327,  28  S.  Ct.  178,  af- 
firming judgment,   80   Vt.    55,   66   Atl.    790. 

512-99d.  Claim  to  be  made  by  witness 
in  person,  etc. — Consolidated  Rendering 
Co.  V.  Vermont,  207  U.  S.  541,  52  L.  Ed. 
327,  28  S.  Ct.  178,  80  Vt.  55,  66  Atl.  790, 
affirmed. 

512-99e.  Same — Province  of  Court  and 
jury. — Consolidated  Rendering  Co.  v.  Ver- 
mont, 207  U.  S.  541,  52  L.  Ed.  327,  28  S. 
Ct.   178,  80  Vt.   55,  66   Atl.   790,  affirmed. 

Whether  the  documentary  evidence  is 
relevant,  and  would  be  proper  testimony 
to  be  used  in  the  case  when  produced, 
is  for  the  court,  and  not  for  the  witness, 
to  say.  In  re  Consolidated  Rendering 
Co.,  66  A.  790,  80  Vt.  55,  judgment  af- 
firmed. Consolidated  Rendering  Co.  v. 
Vermont,  207  U.  S.  541,  52  L.  Ed.  327,  28 
S.    Ct.    178. 

512-1.  Witness  taking  stand  in  his  own 
behalf — Cross-examination,  impeachment, 
etc. — An  accused  who  voluntarily  takes 
the  stand  in  his  own  behalf,  thereby  waiv- 
ing his  privilege,  may  be  subjected  to 
cross-examination  concerning  his  state- 
ment. Powers  V.  United  States,  223  U. 
S.  303,  56  L.   Ed.  448,  32   S.   Ct.  281. 

The  rule  recognized  in  the  federal  su- 
preme court  is  that  a  defendant  who  vol- 
untarily takes  the  stand  in  his  own  be- 
half, thereby  waiving  his  privilege,  may 
he  subjected  to  a  cross-examination  con- 
cerning his  statement.  "Assuming  the 
position  of  a  witness,  he  is  entitled  to  all 
its  rights  and  protection,  and  is  subject 
to  all  its  criticisms  and  burdens;"  and 
may  be  fully  cross-examined  as  to  the 
testimony  voluntarily  given.  Powers  v. 
United  States,  223  U.  S.  303,  56  L.  Ed.  448, 
32  S.  Ct.  281;  Reagan  v.  United  States, 
157  U.  S.  301,  305,  39  L.  Ed.  709,  15  S. 
Ct.   610. 

The    rule    is    thus    stated    in    Brown    v. 


362 


Vol.  IV 


CONSTITUTIONAL  LAW. 


513 


Evidence  and  Statements  Previously  Given — Failure  to  Warn  Accused 
That  They  May  Be  Used  against  Him. — Statements  voluntarily  made  by  the 
accused  previous  to  his  trial  are  admissible  against  him,  as  well  as  evidence  vol- 
untarily and  imderstandingly  given  at  a  preliminary  hearing;  and  it  is  not  es- 
sential to  the  admissibility  of  such  statements  or  evidence  that  the  accused 
should  have  been  warned  that  what  he  said  might  be  used  asrainst  him.^^ 


Walker,  161  U.  S.  591,  597,  40  L.  Ed.  819, 
16  S.  Ct.  644:  "Thus,  if  the  witness  him- 
self elects  to  waive  his  privilege,  as  he 
may  doubtless  do,  since  the  privilege  is 
for  his  protection,  and  not  for  that  of 
other  parties,  and  discloses  his  criminal 
connections,  he  is  not  permitted  to  stop, 
but  must  go  on  and  make  a  full  disclos- 
ure." Powers  V.  United  States,  223  U.  S. 
303,  56   L.   Ed.  448,  32   S.  Ct.  281. 

One  accused  of  illegal  conduct  with  ref- 
erence to  the  distillation  of  spirits,  who 
has  testified  in  chief  that  he  was  em- 
ployed to  beat  apples  near  a  still,  with 
no  interest  in  them,  or  in  the  product,  or 
in  the  still,  may  be  asked  on  cross-exami- 
nation whether  he  had  not  previously 
worked  with  his  alleged  employer  at  a 
distillery  and  made  brandy  with  him.  as 
relevant  to  his  claitn  that  he  was  inno- 
cently occupied.  Powers  v.  United  States, 
223  U.   S.  303,   56  L.   Ed.  448,  32   S.   Ct.   281. 

513-3a.  Evidence  and  statements  previ- 
ously given — Failure  to  warn  accused  that 
same  may  be  used  against  him. — Powers 
^.  United  States,  223  U.  S.  303,  56  L.  Ed. 
448,   32    S.    Ct.    281. 

The  admission  in  evidence  at  the  trial 
of  the  testimony  of  the  accused,  volun- 
taril}^  and  understandingly  given  at  the 
preliminary  hearing,  does  not  violate  at 
the  privilege  against  self-crimination  ac- 
corded by  U.  S.  Const.,  5th  Amend.,  al- 
though he  was  not  warned  at  the  time 
that  what  he  said  might  be  used  against 
Tiim.  Powers  v.  United  States.  223  U.  S. 
303,   56   L.    Ed.   448,   32   S.   Ct.  281. 

Testimony  of  an  accused,  voluntarily 
given  at  the  preliminary  hearing,  is  not 
rendered  inadmissible  at  the  trial  bv  U. 
S.  Rev.  Stat.,  §  860,  U.  S.  Comp.  Stat.  1901, 
p.  661,  providing  that  no  pleading  nor 
any  discovery  or  evidence  obtained  from 
a  part}'  by  means  of  a  judicial  proceeding 
shall  be  used  in  evidence  against  him  in 
a  criminal  proceeding.  Powers  v.  United 
States,  223  U.  S.  303,  56  L.  Ed.  448,  32 
S.   Ct.   281. 

In  Wilson  v.  United  States,  162  U.  S. 
613,  40  L.  Ed.  1090,  16  S.  Ct.  895,  Wilson 
was  charged  with  murder.  Before  a 
United  States  commissioner,  upon  a  pre- 
liminary hearing,  he  made  a  statement 
which  was  admitted  at  the  trial.  He  had 
no  counsel,  was  not  warned  or  told  of 
his  right  to  refuse  to  testify,  but  there 
was  testimony  tending  to  show  that  the 
statement  was  voluntary.  At  page  623  the 
federal  supreme  court  said:  "And  it  is 
laid   down   that  it   is   not   essential   to   the 


admissibility  of  a  confession  that  it 
should  appear  that  the  person  was  warned 
that  what  he  said  would  be  used  against 
him,  but,  on  the  contrary,  if  the  confes- 
sion was  voluntary,  it  is  sufficient,  though 
it  appear  that  he  was  not  so  warned.  Joy, 
Confessions,  §§  45,  48,  and  cases  cited. 
*  *  *  He  (Wilson)  did  not  testify 
that  he  did  not  know  that  he  had  a 
right  to  refuse  to  answer  the  questions, 
or  that,  if  he  had  known  it,  he  would  not 
have  answered.  *  *  *  He  did  not  have 
the  aid  of  counsel,  and  he  was  not  warned 
that  the  statement  might  be  used  against 
him,  or  advised  that  he  need  not  answer. 
These  were  matters  which  went  to  the 
weight  or  credibility  of  what  he  said  of 
an  incriminating  character:  but  as  he  was 
not  confessing  guilt,  but  the  contrary,  we 
think  that,  under  all  the  circumstances  dis- 
closed, they  were  not  of  themselves  suffi- 
cient to  require  his  answers  to  be  excluded 
on  the  ground  of  being  involuntary  as 
matter  of  law."  Powers  v.  United  States, 
223  U.   S.  303.  56  L.   Ed.  448,  32   S.   Ct.  281. 

Statements  made  by  accused  in  igno- 
rance of  his  rights,  or  without  knowledge 
of  purpose  for  which  obtained. — The  ac- 
cused can  not  claim  to  have  been  com- 
pelled to  be  a  witness  against  himself,  in 
violation  of  the  Philippine  Islands  Civil 
Government  Act  of  July  1,  1902  (32  Stat, 
at  L.  692,  chap.  1369),  §  5,  because  of  the 
denial  of  a  motion  to  compel  the  pro- 
vincial fiscal  to  return  a  statement  made 
by  accused  in  ignorance  of  his  rights,  and 
to  prohibit  the  fiscal  from  using  the  state- 
ment, where  such  statement  was  not 
afterwards  used  in  any  way.  Pendleton 
f.  United  States,  216  U.  S.  305,  54  L.  Ed. 
491,    30    S.    Ct.    315. 

Same — Right  to  be  in  a  position  to  be 
able  not  to  tell  the  truth. — Defendant  was 
subpoenaed  as  a  witness,  and  obej^ed  by 
.^roing  to  the  fiscal's,  where  he  answered 
questions  put  to  him  without  knowing  that 
'^e  had  a  right  to  refuse,  or  being  notified 
that  he  had  such  right,  and  not  knowing 
that  "the  object  of  securing  his  statement 
was  in  order  to  search  for  proof  against 
him."  The  affidavit  also  stated  that  he 
was  not  represented  by  counsel,  and  did 
not  know  that  he  had  a  right  to  consult 
a  lawyer.  Motion  was  made,  presumably 
based  on  the  affidavit,  for  an  order  to  the 
fiscal  to  return  to  the  defendant  the  state- 
ment, together  with  all  copies  of  the  same, 
and  that  the  fiscal  be  prohibited  from 
using  the  statement  in  any  manner  what- 
ever.     Nothing  seems  to   have   been   done 


363 


514-518 


COXSTITUTIOKAL  LAW. 


Vol.  IV. 


M.    Excessive  Bail  or  Fines;    Cruel  and  Unusual  Punishment— 2.   Ex- 

cKssivE  Finks;    Crue^l  and  Unusual   Punishments — c.     What   Constitutes 
Cruel  or  Unusual  Punishment,  or  Excessive  Pine. — See  notes  11,  14. 

XIX.    Ex  Post  Facto  Laws  and  Bills  of  Attainder. 

C.  Definitions  and  General  Principles — 1.  Ex  Post  Facto  Laws — d.  Re- 
fer Only  to  Crimes. — See  note  29. 


with  that  motion,  and  subsequently  it 
was  repeated  and  denied  on  the  ground 
"that  it  was  not  a  proper  time  to  make 
such  motion,  as  the  court  could  not  then 
decide  on  the  admissibility  of  proofs  which 
had  not  yet  been  offered  in  the  cause." 
An  exception  was  entered.  It  was  not 
contended  that  the  statement  was  after- 
wards used  in  any  way,  but  the  action  of 
the  court  was  urged  nevertheless  as  an 
error  "so  grave  and  so  material,"  to  use 
counsel's  words,  "as  to  call  for  a  new 
trial."  The  argument  to  support  it  was 
based  on  suppositions  of  what  might  have 
been  donej  and  the  potency  of  the  state- 
ment in  the  hands  of  the  prosecuting  of- 
ficer. "It  left  the  defendant  open,  it  was 
said,  to  the  fire  of  a  masked  battery." 
Replying  to  this  argument,  the  court  said: 
"But  the  law  has  no  measure  to  apply  to 
such  a  situation.  Defendant  was  certainly 
not  disabled  from  telling  the  truth  in 
other  statements  if  he  wished  to  make 
them,  and  to  be  able  not  to  tell  the  truth 
can  hardly  be  urged  as  a  legal  and  con- 
stitutional right.  The  assignment  of  error, 
therefore,  is  not  well  taken."  Pendleton 
V.  United  States,  216  U.  S.  305,  54  L.  Ed. 
491,   30   S.   Ct.   315. 

514-11.  What  constitutes  excessive  fine 
or  cruel  and  unusual  punishment. — What 
constitutes  a  cruel  and  unusual  punish- 
ment has  not  been  exactly  decided.  It 
has  been  said  that  ordinarily  the  terms 
imply  something  inhuman  and  barbarous, 
torture  and  the  like.  Weems  v.  United 
States,  217  U.  S.  349,  54  L.  Ed.  793,  30  S. 
Ct.  544. 

Cruel  and  unusual  punishment,  forbid- 
den by  the  Philippine  bill  of  rights,  is  in- 
flicted by  the  provisions  of  the  Philippine 
Penal  Code  under  which  the  falsification 
by  a  public  official  of  a  public  and  official 
document  must  be  punished  by  fine  and 
imprisonment  at  hard  and  painful  labor 
for  a  period  ranging  from  12  years  and  a 
day  to  20  years,  the  prisoner  being  sub- 
ject, as  accessories  to  the  main  punish- 
ment, to  carrying,  during  his  iinprison- 
ment,  a  chain  at  the  ankle,  hanging  from 
the  wrist,  to  deprivation  during  the  term 
of  imprisonment  of  civil  rights,  and  to 
perpetual  absolute  disqualification  to  enjoy 
political  rights,  hold  office,  etc.,  and  to 
surveillance  of  the  authorities  during  life. 
Weems  v.  United  States,  217  U.  S.  349, 
54  L.  Ed.  793,  30  S.  Ct.  544. 

514-14.  Increased  punishment  for  habit- 
ual criminals. — Cruel  and  unusual  punish- 


ment is  not  inflicted  upon  a  former  con- 
vict by  bringing  him,  after  conviction, 
before  the  court  of  another  county  in  a 
separate  proceeding  instituted  conform- 
ably to  W.  Va.  Code,  chap.  165,  §§  1-5, 
by  information  charging  him  with  prior 
convictions  which  were  not  alleged  in  the 
indictment  on  which  he  was  last  tried 
and  convicted,  and,  on  the  finding  of  the 
jury  that  he  was  the  former  convict,  sen- 
tencing him  to  the  additional  punishment 
which  chap.  152,  §§  23,  24,  in  such  cases- 
prescribes.  Graham  v.  West  Virginia,  224 
U.   S.  616,  56  L.   Ed.  917,  32  S.   Ct.   583. 

518-29.  Refer  only  to  crimes. — "This 
court  had  occasion  in  a  very  early  case  to 
consider  the  meaning  of  an  ex  post  facto 
law  as  the  term  is  used  in  the  federal 
constitution,  prohibiting  the  states  from 
passing  any  law  of  that  character.  Calder 
z:  Bull,  3  Dall.  385,  390,  1  L.  Ed.  648.  In 
that  case  it  held  that  such  laws,  within  the 
meaning  of  the  federal  constitution,  had 
reference  to  ci:iminal  punishments,  and 
did  not  include  retrospective  laws  ot  a 
different  character.  That  case  has  been 
cited  and  followed  in  later  cases  in  this 
court.  See  Kring  f.  Missouri,  107  U.  S. 
221.  27  L.  Ed.  506,  2  S.  Ct.  443;  Orr  v. 
Oilman,  183  U.  S.  278,  285,  46  L.  Ed.  196. 
In  the  latter  case  a  former  decision  of 
this  court,  in  Carpenter  v.  Pennsylvania, 
17  How.  456,  463,  15  L.  Ed.  127,  opinion 
by  Mr.  Justice  Campbell,  was  quoted  with 
approval.  It  was  therein  said:  'The  de- 
bates in  the  federal  convention  upon  the 
constitution  show  that  the  terms  "ex  post 
facto  laws"  were  understood  in  a  re- 
stricted sense,  relating  to  criminal  cases- 
only,  and  that  the  description  of  Black- 
stone  of  such  laws  was  referred  to  for 
their  meaning.  3  Madison  Papers,  1399,. 
1450,  1579.'  "  Kentucky  Union  Co.  v.  Ken- 
tucky, 219  U.  S.  140,  152,  55  L.  Ed.  137,  81 
S.  Ct.  171. 

The  retroactive  feature  of  the  provi- 
sions of  the  Act  of  June  29,  1906,  §  15,  au- 
thorizing the  impeachment  of  naturaliza- 
tion certificates  where  fraudulently  or  il- 
legally procured,  do  not  invalidate  that 
section  under  U.  S.  Const,  art.  1,  §  9, 
prohibiting  ex  post  facto  laws.  Johan- 
nessen  v.  United  States,  225  U.  S.  227,  56 
L.   Ed.   1066,  32   S.   Ct.   613. 

It  is  insisted  that,  if  retrospective  in 
form,  §  15,  Act  of  June  29,  1906,  chap. 
3592  (34  Stat,  at  L.  596,  601,  U.  S.  Comp. 
Supp.  1909,  pp.  97,  485),  is  void,  as 
an   ex  post  facto   law   within   the   prohibi- 


364 


Vol.  IV. 


CONSTITUTIONAL  LAW. 


519 


E,  Rule  of  Construction. — Taking  Statute  as  Construed  by  State 
Court. — Where  the  highest  court  has  construed  a  law  of  the  state  in  such  a 
manner  as  to  avoid  giving  it  an  ex  post  facto  operation,  the  federal  supreme 
court  will  not  construe  it  otherwise  so  as  to  bring  it  in  conflict  with  the  federal 
constitutional  provision.-'^^'^ 

I.  Infringement  of  the  Constitutional  Guaranty — 1.  Laws  Making 
That  Criminal  Which    Was    Not    So    in    Its  Inception — b>4.  Penalizincf 

the   Carrying   Out   of   Contracts   Which    Were   Lazafid   When  Entered   into. 

There  is  no  vested  right  to  carry  into  effect  a  contract  which  was  originally 
made  contrary  to  the  provisions  of  law,  or  which,  though  made  consistently 
with  the  rules  of  law  at  that  time,  has  become  illegal  in  virtue  of  some  subse- 
quent law.  Wliile,  therefore,  it  is  beyond  the  power  of  government,  consistently 
with  the  ex  post  facto  provisions  of  the  constitution,  to  penalize  the  execution 
or  entering  into  a  contract  by  a  law  enacted  subsequent  to  the  making  of  the 
contract,  it  is  entirely  competent  for  government  to  penalize  the  carrying  out 
of  a  contract  which  has  become  illegal  or  opposed  to  public  policy  by  reason  of 


tion  of  art.  1,  §  9  of  the  constitution. 
It  is,  however,  settled  that  this  prohibi- 
tion is  confined  to  laws  respecting  crimi- 
nal punishments,  and  has  no  relation  to 
retrospective  legislation  of  any  other 
description.  Coolev,  Const.  Lim.  6th  ed. 
319;  Calder  ?■.  Bull^  3  Dall.  385,  390,  1  L. 
Ed.  648;  and  Rose's  Note  thereon.  The 
act  imposes  no  punishment  upon  an  alien 
who  has  previously  procured  a  certificate 
of  citizenship  by  fraud  or  other  illegal 
conduct.  It  simply  deprives  him  of  his 
ill-gotten  privileges.  Johannessen  v. 
United  States,  225  U.  S.  227,  56  L.  Ed. 
1066,  32  S.  Ct.  613. 

519-39a.  Taking  statute  as  construed  by 
state  court. — Kentucky  Union  Co.  v. 
Kentucky,  219  U.  S.  140,  55  L.  Ed.  137, 
31  S.  Ct.  171;  Ughbanks  z'.  Armstrong, 
208  U.  S.  481,  52  L.  Ed.  582,  28  S.  Ct.  372. 

The  objection  that  the  retrospective  fea- 
tures of  Act  Ky.  March  15,  1906,  c.  22, 
art.  3,  forfeiting  land  titles  for  failure  to 
list  and  pay  taxes,  make  the  law  an  ex 
post  facto  one,  is  not  valid,  where  such 
legislation,  as  construed  by  the  highest 
court  of  the  state,  imposes  no  retrospec- 
tive penalties  or  punishment  of  a  criminal 
nature.  Kentucky  Union  Co.  v.  Ken- 
tucky, 219  U.  S.  140,  55  L.  Ed.  137,  31 
S.  Ct.  171,  affirming  judgments  (1907)  106 
S.  W.  260,  127  Ky.  667,  and  (1908)  108 
S.  W.  931,  128  Ky.  610,  111  S.  W.  362,  33 
Ky.  Law  Rep.  857. 

State  construction  as  to  r^eal  of  stat- 
utes— Michigan  indeterminate  sentence 
act. — "A  constitutional  amendment  was 
adopted  (1901),  which  authorized  the  leg- 
islature to  provide  for  an  indeterminate 
sentence  law,  as  punishment  for  crime,  on 
conviction  thereof.  Art.  4,  §  47,  constitu- 
tion of  Michigan,  as  amended.  *  *  *  Un- 
der the  authority  of  this  amendment  the 
legislature,  in  1903,  passed  Act  No.  136  of 
the  public  acts  of  that  year.  This  act  was 
held  to  be  valid.  In  re  Campbell,  138 
Mich.  597,  101   N.  W.  826;   In  re  Duff,  141 


Mich.  623,  105  N.  W.  138.  An  act  of  a 
character  very  similar  has  been  held  to 
violate  no  provision  of  the  federal  consti- 
tution. Dreyer  7'.  Illinois,  187  U.  S.  71,  47 
L.  Ed.  79,  23  S.  Ct.  28.  While  the  act  in 
question  here  was  in  force,  the  crime  of 
plaintiff  in  error  was  committed,  and  on 
the  17th  of  March,  1904,  he  was  sentenced 
as  already  stated.  The  sentence  fixed  the 
maximum  as  well  as  the  minimum  term 
of  imprisonment,  but  the  fixing  of  the 
maximum  term  in  the  sentence  has  been 
held  to  be  void,  as  not  intended  or  au- 
thorized by  the  law  of  1903  in  any  case 
where  the  statute  providing  for  the  pun- 
ishment of  a  crime  itself  fixes  the  maxi- 
mum term  of  imprisonment  at  a  certain 
number  of  years.  In  re  Campbell,  and  In 
re  Duff,  supra.  *  *  *  In  1905,  Public  Acts 
of  Michigan,  No.  184,  p.  268,  the  legisla- 
ture passed  another  act  on  the  same  sub- 
ject and  repealed  the  Act  of  1903.  The 
plaintiff  in  error  contends  that  the  provi- 
sions of  the  Act  of  1905  are  more  unfav- 
orable to  him  than  that  of  the  Act  of  1903, 
and  that  it  is  invalid  as  to  him  because  it 
is  an  ex  post  facto  law,  and,  as  the  Act  of 
1903  has  been  repealed,  there  is  no  act  in 
force  by  which  he  can  be  further  impris- 
oned. Without  stopping  to  inquire 
whether  the  Act  of  1905  would  be,  in  his 
case,  an  ex  post  facto  law,  it  may  be  stated 
that  the  supreme  court  of  Michigan  has 
held  that  the  Act  of  1903  is  not  repealed 
as  to  those  who  were  sentenced  under  it, 
and  that,  as  to  them,  it  is  in  full  force,  and 
the  statute  of  1905  has  no  application.  In 
re  Manaca,  146  Mich.  697,  110  N.  W.  75.  In 
such  a  case  as  this  we  follow  that  con- 
struction of  the  constitution  and  laws  of 
the  state  which  has  been  given  them  by 
the  highest  court  thereof.  There  is  there- 
fore, no  force  in  the  contention  made  on 
the  part  of  the  plaintiff  in  error  that  the 
Act  of  1905  applies  in  his  case  and  is  ex 
post  facto."  Ughbanks  z'.  -Armstrong, 
208  U.  S.  481,  52  L.   Ed.  582,  28  S.   Ct.  372. 


365 


520 


CONTEMPORANEOUS  CONSTRUCTION. 


Vol.  IV. 


subsequent  statutes  or  change  of  policy.^^^ 

3.  Increase  of  Punishment  eor  Subsequent  Oeeenses. — See  ante,  "Un- 
equal Punishment,"  VII,  B,  4,  d,  (8). 

3^.  Indeterminate  Sentence  Acts. — See  ante,  "Rule  of  Construction," 
XIX,  E. 

CONSTRUCTION. — See  ante.  Constitutionae  Law,  p.  264;  post.  Interpre- 
tation AND  Construction;  Principal  and  Surety;  Statutes;  Treaties; 
Wills.     As  to  construction  of  United  States  contracts,  see  United  States. 

CONSULS. — See  ante,  Ambassadors  and  Consuls,  p.  25 ;  post,  Executors 
AND  Administrators. 

CONTEMPORANEOUS  CONSTRUCTION.— See  ante.  Constitutional 
Law,  p.  264;   post,  Statutes. 


520-45a.  Penalizing  the  carrying  out  of 
contracts  which  were  lawful  when  entered 
into. — Louisville,  etc.,  R.  Co.  z:  Mottley, 
219  U.  S.  467,  55  L.  Ed.  297.  31  S-  Ct.  265; 
Waters-Pierce  Oil  Co.  v.  Texas,  No.  1,  212 
U.    S.   86,    53   L.    Ed.    417,   29    S.    Ct.   220. 

A  retroactive  effect,  in  violation  of 
Const.  U.  S.  art.  1,  §  10,  is  not  given  to 
the  Texas  anti-trust  laws  of  May  25,  1899 
(Laws  1899,  p.  246.  c.  146)  and  of  March 
31,  1903  (Laws  1903,  p.  119,  c.  94),  by  con- 
struing them  to  authorize  a  conviction  of 
a  foreign  corporation  for  carrying  out, 
after  the  passage  of  those  laws,  an  agree- 
ment for  division  of  territory  in  suppres- 


sion of  competition,  entered  into  before 
the  enactment  of  those  laws  and  before 
the  creation  of  the  defendant  corporation, 
and  at  a  time  when  such  agreement  was 
legal.  Judgment  (Tex.  Civ.  App.  1908) 
106  S.  W.  918,  affirmed.  Waters-Pierce 
Oil  Co.  V.  Texas,  No.  1,  212  U.  S.  86,  53 
L.    Ed.    417,    29    S.    Ct.    220. 

Statutes  regulating  interstate  commerce. 
— As  to  statutes  regulating  interstate  com- 
merce and  penalizing  the  carrying  out  of 
existing  contracts  for  rebates,  free  passes, 
reduced  transportation,  etc.,  see  post,  IN- 
TERSTATE AND  FOREIGN  COM- 
MERCE. 


366 


\'ol.  IV. 


COXTEMPT. 


532 


CONTEMPT. 

II.  Purpose  and  Nature  of  Proceedings,  367. 

A.  Purpose,  367. 

B.  Nature,  367. 

III.  Power  to  Punish,  369. 
A.  Power  of  Court,  369. 

1.  Inherent  Power.  369. 

V.  What  Constitutes  Contempt,  369. 
A.  In  General,  369. 

C.  Disobedience  of  Order  of  Court,  370. 

1.  Necessity  for  Notice  of  Order,  370. 

2.  A^iolation  of  Order  of  Injunction.  370. 

4.  Disobeying  Order  to  Produce  Books  and  Papers,  370. 

VIII.  Procedure  and  Practice,  370. 

G.  Effect  of   Settlement  of  Alain  Cause- — Dismissal,  370. 
XI.  Appeal  and  Error,  371. 

CROSS   REFERENCES. 

See  the  title  Contempt,  vol.  4,  p.  531,  and  references  there  given. 

II.  Purpose  and  Nature  of  Proceedings. 

A.  Purpose. — See  post,  '"Inherent  Power,"  III,  A,  1. 

B.  Nature. — There  is  an  essential  difference  between  civil  and  criminal  con- 
tempt,^'' and  they  are  governed  by    different  rules  of    procedure. ^^     But  whether 


532-5a.  Civil  and  criminal  contempt  dis- 
tinguished.— Gompers  -'.  Bucks  Stove,  etc., 
Co.,  221  U.  S.  418,  55  L.  Ed.  797,  31  S.  Ct. 
492. 

532-5b.  Different  rxiles  of  procedure. — 
Gompers  v.  Bucks  Stove,  etc.,  Co.,  221  U. 
S.  418,  55   L.   Ed.  797.  31   S.   Ct.   492. 

Proceedings  for  civil  contempt  are  be- 
tween the  original  parties  and  are  insti- 
tuted and  tried  as  a  part  of  the  main 
cause.  But  on  the  other  hand,  proceed- 
ings at  law  for  criminal  contempt  are 
between  the  public  and  the  defendant,  and 
are  not  a  part  of  the  original  cause.  Gom- 
pers V.  Bucks  Stove,  etc.,  Co.,  321  U.  S. 
418,  444,  55  L.  Ed.  797,  31  S.  Ct.  492. 

A  proceeding,  instituted  by  an  ag- 
grieved party  to  punish  the  other  party 
for  contempt  for  affirmatively  violating 
an  injunction  in  the  same  action  in  which 
the  injunction  order  was  issued,  and  pray- 
ing for  damages  and  costs,  is  a  civil  pro- 
ceeding in  contempt,  and  is  part  of  the 
main  action,  and  the  court  can  not  punish 
the  contempt  by  imprisonment  for  a  def- 
inite term;  the  only  punishment  is  by 
fine  measured  by  the  pecuniary  injury 
sustained.  Gompers  -•.  Bucks  Stove,  etc., 
Co.,  221  U.  S.  418.  55  L.  Ed.  797,  31  S.  Ct. 
492. 

In  proceedings  for  civil  contempt  the 
complainant,     if     successful,     is      entitled 


to  costs.  Rapalje  on  Contempt,  §  132, 
And  evidently  on  the  theory  that  this 
was  a  civil  proceeding  and  to  be  governed 
by  the  rules  applicable  to  an  equity  cause, 
the  Bucks  Stove  &  Range  Co.  moved  the 
court  to  amend  the  decree  so  as  to  award 
to  it  "its  costs."  After  argument  by 
solicitors  for  both  parties,  the  motion 
was  granted,  and  the  court  adjudged  that 
the  complainant  do  recover  against  the 
defendants  its  costs  in  said  contempt  pro- 
ceeding. This  ruling  was  no  doubt  cor- 
rect as  this  was  a  civil  case,  but  could  not 
have  been  granted  in  a  proceeding  for 
criminal  contempt,  where  costs  are  not 
usually  imposed  in  addition  to  the  im- 
prisonment. Where  they  are  awarded 
they  go  to  the  government,  for  the  use 
of  its  officers.  Gompers  v.  Bucks  Stove, 
etc..  Co.,  221  U.  S.  418,  444,  55  L.  Ed.  797, 
31    S.    Ct.    492. 

In  another  most  important  particular 
the  parties  clearly  indicated  that  they 
regarded  this  as  a  civil  proceeding.  The 
complainant  made  each  of  the  defendants 
a  witness  for  the  company,  and,  as  such, 
each  was  required  to  testify  against  him- 
self, a  thing  that  most  likely  would  not 
have  been  done,  or  suffered,  if  either 
party  had  regarded  this  as  a  proceeding 
at  law  for  criminal  contempt,  because  the 
provision  of  the  constitution  that  "no  per- 


361 


532 


CONTEMPT. 


Vol.  IV. 


the  proceedings  be  civil  or  criminal,  there  must  be  an  allegation  that  in  contempt 
of  court  the  defendant  has  disobeyed  the  order,  and  a  prayer  that  he  be  attacked 
and  punished  therefor.^''  It  is  not  the  fact  of  punishment  but  rather  its  character 
and  purpose  that  often  ser\'e  to  distinguish  between  the  two  classes  of  cases. ^"^ 


son  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself"  is 
applicable,  not  only  to  crimes,  but  also 
to  quasi-criminal  and  penal  proceedings. 
Gompers  v.  Bucks  Stove,  etc.,  Co.,  221 
U.  S.  418;  447,  55  L.  Ed.  797,  31  S.  Ct.  492. 
See,  also,  post,  WITNESSES. 

532-5C.  Necessity  for  prayer  that  de- 
fendant be  punished. — Gompers  v.  Bucks 
Stove,  etc.,  Co.,  221  U.  S.  418,  55  L.  Ed. 
797,   31    S.    Ct.    492. 

532-5d.  Character  of  punishment  as 
serving  to  distinguish. — Gompers  v.  Bucks 
Stove,  etc.,  Co.,  221  U.  S.  418,  55  L.  Ed. 
797;  31  S.  Ct.  492;  In  re  Merchants'  Stock, 
etc.,  Co.,  223  U.  S.  639,  56  L.  Ed.  584,  32 
S.  Ct.  339. 

Thus,  if  it  is  for  civil  contempt,  the 
punishment  is  remedial,  and  for  the  bene- 
fit of  the  complainant.  But  if  it  is  for 
criminal  contempt  the  sentence  is  puni- 
tive, to  vindicate  the  authority  of  the 
court.  It  is  true  that  punishment  by  im- 
prisonment may  be  remedial,  as  well  a.« 
punitive,  and  many  civil  proceedings  have 
resulted  not  only  in  the  imposition  of  a 
fine,  payable  to  the  complainant,  but  also 
in  committing  the  defendant  to  prison. 
But  imprisonment  for  civil  contempt  is 
ordered  where  the  defendant  has  refused 
to  do  an  affirmative  act  required  by  the 
provisions  of  an  order  which,  either  in 
form  or  substance,  was  mandatory  in  its 
character.  Imprisonment  in  such  cases 
is  not  inflicted  as  a  punishment,  but  is 
intended  to  be  remedial  by  coercing  the 
defendant  to  do  what  he  had  refused  to 
do.  The  decree  in  such  cases  is  that  the 
defendant  stand  committed  unless  and 
until  he  performs  the  affirmative  act  re- 
quired by  the  court's  order.  Gompers  v. 
Bucks  Stove,  etc.,  Co.,  221  U.  S.  418  441, 
55  L.  Ed.  797,  31  S.  Ct.  492. 

For  example:  If  a  defendant  should' 
refuse  to  pay  alimony,  or  to  surrender 
property  ordered  to  be  turned  over  to  a 
receiver,  or  to  make  a  conveyance  re- 
quired by  a  decree  for  specific  perform- 
ance, he  could  be  committed  until  he  com- 
plied with  the  order.  Unless  these  were 
special  elements  of  contumacy,  the  re- 
fusal to  pay  or  to  comply  with  the  order 
is  treated  as  being  rather  in  resistance 
to  the  opposite  party  than  in  contempt 
of  the  court.  The  order  for  imprisonment 
in  this  class  of  cases,  therefore,  is  not  to 
vindicate  the  authority  of  the  law,  but 
is  remedial  and  is  intended  to  coerce  the 
defendant  to  do  the  thing  required  by 
the  order  for  the  benefit  of  the  complain- 
ant. If  imprisoned,  as  aptly  said  in  re 
Nevitt,  117  Fed.   Rep.  451,  "he  carries  the 


keys  of  his  prison  in  his  own  pocket." 
He  can  end  the  sentence  and  discharge 
himself  at  any  moment  by  doing  what  he 
had  previously  refused  to  do.  Gompers 
V.  J3ucks  Stove,  etc.,  Co.,  221  U.  S.  418 
442,  55  L.  Ed.  797,  31  S.  Ct.  492. 

On  the  other  hand,  if  the  defendant 
does  that  which  he  has  been  commanded 
not  to  do,  the  disobedience  is  a  thing  ac- 
complished. Imprisonment  can  not  undo 
or  remedy  what  has  been  done  nor  afford 
any  compensation  for  the  pecuniary  in- 
jury caused  by  the  disobedience.  If  the 
sentence  is  limited  to  imprisonment  for 
a  definite  period,  the  defendant  is  fur- 
nished no  key,  and  he  can  not  shorten 
the  term  by  promising  not  to  repeat  the 
offense.  Such  imprisonment  operates, 
not  as  a  remedy  coercive  in  its  nature, 
.  but  sorely  as  punishment  for  the  com- 
pleted act  of  disobedience.  Gompers  v. 
Bucks  Stove,  etc.,  Co.,  221  U.  S.  418,  442 
55  L.  Ed.  797,  31  S.  Ct.  492. 

It  is  true  that  either  form  of  irtiprison- 
ment  has  also  an  incidental  effect.  For  if 
the  case  is  civil  and  the  punishment  is 
purely  remedial,  there  is  also  a  vindica- 
tion of  the  court's  authority.  On  the 
other  hand,  if  the  proceeding  is  for  crimi- 
nal contempt  and  the  imprisonment  is 
sorely  punitive,  to  vindicate  the  authority 
of  the  law,  the  complainant  may  also 
derive  some  incidental  benefit  from  the 
fact  that  such  punishment  tends  to  pre- 
vent a  repetition  of  the  disobedience. 
But  such  indirect  consequences  will  not 
change  imprisonment  which  is  merely  co- 
ercive and  remedial,  into  that  which  is 
sorely  punitive  in  character,  or  vice  versa. 
Gompers  v.  Bucks  Stove,  etc.,  Co.,  221  U 
S.   418,  443,  55   L.    Ed.  797,  31   S.   Ct.   492. 

The  fact  that  the  purpose  of  the  pun- 
ishment could  be  examined  with  a  view 
to  determining  whether  it  was  civil  or 
criminal,  is  recognized  in  Doyle  v.  Lon- 
don, etc.,  Acci.  Co.,  204  U.  S.  599,  607,  51 
L.  Ed.  641,  where  it  was  said  that  "While 
It  is  true  that  the  fine  imposed  is  not 
made  payable  to  the  opposite  party,  com- 
pliance with  the  order  relieves  from  pay- 
nient,  and  in  that  event  there  is  no  final 
judgment  of  either  fine  or  imprisonment. 
*  *  *  The  proceeding  is  against  a  party, 
the  compliance  with  the  order  avoids  the 
punishment  and  there  is  nothing  in  the 
nature  of  a  criminal  suit  or  judgment  im- 
posed for  public  purposes  upon  a  defend- 
ant in  a  criminal  proceeding."  Gompers 
V.  Bucks  Stove,  etc.,  Co.,  221  U  S  418 
443,   55    L.    Ed.   797,   31    S.    Ct.    492. 

The  distinction   between  refusing  to  do 
an    act   commanded,    remedied   by   impris- 


368 


Vol.  IV. 


COX  TEMPT. 


532-534 


III.    Power  to  Punish. 

A.    Power  of  Court — 1.    Ixherext  Power. — See  notes  8  and  10. 
Necessity  of. — See  note  11. 

V.    What  Constitutes  Contempt. 
A.    In  General. — See  note  17. 


onment  until  the  party  performs  the  re- 
quired act;  and  doing  an  act  forbidden, 
punished  by  imprisonment  for  a  definite 
term;  is  sound  in  principle,  and  generally, 
if  not  universally,  affords  a  test  by  which 
to  determine  the  character  of  the  punish- 
ment. Gompers  v.  Bucks  Stove,  etc.,  Co., 
221  U.  S.  418.  443.  55  L.  Ed.  797,  31  S.  Ct. 
492. 

532-8.  Inherent  power. — Gompers  v. 
Bucks  Stove,  etc..  Co.,  221  U.  S.  418,  55 
L.    Ed.    797,    31    S.    Ct.    492. 

County  court. — Under  Laws  1906,  p.  79, 
No.  75,  the  county  court  has  jurisdiction 
to  fine  a  corporation  for  contempt  for  a 
violation  of  an  order  to  produce  books 
and  papers  before  the  grand  jury  in  an 
investigation  of  an  alleged  breach  of  a 
criminal  statute  b}^  citizens  of  the  state 
in  their  dealings  with  the  corporation 
therein.  (1907)  In  re  Consolidated  Ren- 
dering Co..  66  A.  790,  80  Vt.  55,  judgment 
affirmed.  Consolidated,  etc.,  Co.  v.  Ver- 
mont. 207  U.  S.  541,  52  L.  Ed.  327,  28  S. 
Ct.  178. 

533-10.  Congress  in  recognition  of  the 
necessity  of  the  case  has  also  declared 
(Rev.  Stat.,  §  725)  that  the  courts  of  the 
United  States  "shall  have  power  to  pun- 
ish by  fine  or  imprisonment  contempts 
of  their  authority  *  *  *"  including  "dis- 
obedience *  *  *  l5y  any  party  to  anj^ 
lawful  order  *  *  *  of  the  said  courts." 
But  the  very  amplitude  of  the  power  is 
a  warning  to  use  it  with  discretion,  and 
a  command  never  to  exert  it  where  it  is 
not  necessary  or  proper.  Gompers  v. 
Bucks  Stove,  etc.,  Co..  221  U.  S.  418,  450, 
55  L.  Ed.  797.  31  S.  Ct.  492. 

533-11.  Necessity  of. — While  it  is  spar- 
ingly to  be  used,  yet  the  power  of  courts 
to  punish  for  contempts  is  a  necessary 
and  integral  part  of  the  independence  of 
the  judiciary,  and  is  absolutely  essential 
to  the  performance  of  the  duties  imposed 
on  them  by  law.  Without  it  they  are 
mere  boards  of  arbitration  whose  judg- 
ments and  decrees  would  be  only  advis- 
ory. Gompers  v-  Bucks  Stove,  etc.,  Co., 
221  U.  S.  418,  450.  55  L.  Ed.  797,  31  S.  Ct. 
492. 

If  a  party  can  make  himself  a  judge  of 
the  validity  of  orders  which  have  been 
issued,  and  by  his  own  act  of  disobedience 
set  them  aside,  then  are  the  courts  im- 
potent, and  what  the  constitution  now 
fittingly  calls  the  "judicial  power  of  the 
United  States"  would  be  a  mere  mockery. 


Gompers  v.  Bucks  Stove,  etc.,  Co.,  221 
U.  S.  418,  450,  55  L.   Ed.  797,  31  S.  Ct.  492. 

This  power  "has  been  uniformly  held  to 
be  necessary  to  the  protection  of  the 
courts  from  insults  and  oppressions  while 
in  the  ordinary  exercise  of  its  duties, 
and  to  enable  it  to  enforce  its  judgments 
and  orders  necessary  to  the  due  adminis- 
tration of  law  and  the  protection  of  the 
rights  of  suitors."  Bessette  v.  Conkey 
Co..  194  U.  S.  324,  333,  48  L.  Ed.  997; 
Gompers  v.  Bucks  Stove,  etc,,  Co.,  221  U. 
S.  418,  450,  55  L.  Ed.  797,  31  S.  Ct.  492. 

There  has  been  general  recognition  of 
the  fact  that  the  courts  are  clothed  with 
this  power  and  must  be  authorized  to  ex- 
ercise it  without  referring  the  issues  of 
fact  or  law  to  another  tribunal  or  to  a 
jury  in  the  same  tribunal.  For  if  there 
was  no  such  authority  in  the  first  in- 
stance there  would  be  no  power  to  en- 
force its  orders  if  they  were  disregarded 
in  such  independent  investigation.  With- 
out authority  to  act  promptly  and  inde- 
pendently the  courts  could  not  administer 
public  justice  or  enforce  the  rights  of 
private  litigants.  Bessette  v.  Conkey  Co., 
194  U.  S.  324,  48  L.  Ed.  997;  Gompers 
V.  Bucks  Stove,  etc..  Co.,  221  U.  S.  418, 
450.  55  L.   Ed.   797.  31   S.   Ct.  492. 

534-17.  Lynching  defendant  who  has  ap- 
pealed  to  supreme  court. — The  sheriff  and 
night  jailer  in  charge  of  a  prisoner  under 
sentence  of  death  in  a  state  court  are 
chargeable  with  contempt  of  the  mandate 
of  the  supreme  court  of  the  United  States, 
staying  all  proceedings  pending  an  appeal, 
where  such  officials  made  no  preparation 
to  prevent  the  murder  of  the  prisoner  by 
a  mob,  actuated  by  the  intent  to  prevent 
the  delay  attendant  upon  such  appeal,  al- 
though such  action  was  reasonably  to  be 
anticipated,  and  made  no  effort  to  resist 
the  mob,  to  save  the  prisoner,  or  to  iden- 
tify the  participants  in  the  crime.  United 
States  V.  Shipp,  214  U.  S.  386,  53  L.  Ed. 
1041,  29  S.  Ct.  637.  See.  also.  United 
States  V.  Shipp.  215  U.  S.  580.  54  L.  Ed. 
337,  30  S.   Ct.   397. 

Participants  in  the  murder  of  a  prisoner 
under  sentence  of  death  in  a  state  court, 
after  an  appeal  to  the  supreme  court  of 
the  United  States  has  been  allowed,  are 
guilty  of  contempt  of  the  supreme  court, 
where  their  crime  was  actuated  by  the 
intent  to  prevent  the  delay  attendant  upon 
such  appeal.     United  States  v.  Shipp,  214 


12  U  S   En( 


-24 


369 


535-536 


CONTEMPT. 


Vol.  IV. 


C.  Disobedience  of  Order  of  Court— 1.  Necessity  for  Notice  of  Order. 
— An  objection  that  a  notice  to  produce  books  and  papers  is  too  broad  can  not  be 
urged  against  the  vaUdity  of  the  order  adjudging  the  party  refusing  to  comply 
therewith  guilty  of  contempt.--'' 

2.  Violation  of  Order  of  Injunction. — See  note  23. 

Excuse  for  Disobedience. — See  note  26. 

4.  Disobeying  Order  to  Produce  Books  and  Papers. — A  corporation  which 
refuses  to  produce  certain  books  and  papers  before  a  grand  jury,  in  compliance 
with  Vermont  Act  of  October  9,  1906,  is  guilty  of  contempt.2Sa 

Vni.  Procedure  and  Practice. 

G.  Effect  of  Settlement  of  Main  Cause — Dismissal. — A  proceeding  in 
equity  for  civil  contempt  consisting  in  doing  that  which  was  forbidden  by  an  in- 
junction, where  the  only  remedial  relief  possible  was  a  fine  payable  to  the  com- 
plainant, must  be  dismissed  without  prejudice  to  the  power  and  right  of  the  court 
granting  the   injunction  to   punish  for   contempt  by   proper   proceedings,    where 


U.  S.  386,  53  L.  Ed.  1041,  29  S.  Ct.  637. 
See,  also.  United  States  v.  Shipp,  215  U. 
S.  580,  54  L.  Ed.  337,  30  S.  Ct.  397. 

Destruction  of  subject  matter  of  litiga- 
tion pending  appeal. — The  willful  destruc- 
tion by  municipal  ofificers  of  the  poles 
and  wires  of  a  light  and  power  company, 
pending  an  appeal  to  the  federal  supreme 
court  from  a  decree  of  a  circuit  court, 
dismissing  a  bill  praying,  among  other 
things,  an  injunction  to  prevent  such  de- 
struction until  the  right  shall  be  deter- 
mined, is,  in  and  of  itself,  a  contempt  of 
the  appellate  jurisdiction  of  the  supreme 
court,  although  such  conduct  may  also 
be  a  violation  of  the  temporary  injunction 
order  continued  by  the  court  below  pend- 
ing the  appeal.  Merrimack  River  Sav. 
Bank  v.  Clay  Center,  219  U.  S.  527,  55 
L.    Ed.    320,    31    S.    Ct.    295. 

Excuse — Punishment. — The  honest  be- 
lief that  when  an  appeal  to  the  federal 
supreme  court  from  a  decree  of  a  circuit 
court,  dismissing  a  bill  asking  injunctive 
relief  against  the  removal  or  destruction 
by  municipal  officers  of  the  poles  and 
wires  of  a  light  and  power  company,  had 
been  dismissed  and  an  order  of  dismissal 
entered,  there  was  no  reason  why  such 
poles  and  wires  should  not  be  removed 
or  destroyed,  although  not  sufficient  to 
acquit  of  a  technical  contempt  of  court 
where  no  mandate  had  issued  or  could 
have  issued  under  the  rules  of  the  su- 
preme court,  may  reduce  the  punishment 
to  the  payment  of  the  costs  of  the  con- 
tempt proceedings.  Merrimack  River  Sav. 
Bank  v.  Clay  Center.  219  U.  S.  527,  55  L. 
Ed.    320,   31    S.   Ct.   295. 

535-22a.  Consolidated,  etc.,  Co.  v.  Ver- 
mont, 207  U.  S.  541,  52  L.  Ed.  327,  28  S. 
Ct.  178.  See  post,  TRODUCTION  OF 
DOCUMENTS. 

Notice  held  not  too  broad. — A  notice 
to    produce    certain    books    and   papers    is 


not  too  broad  if  it  is  limited  to  books 
and  papers  relating  to  dealings  with  cer- 
tain specified  parties  between  certain  spec- 
ified dates.  Consolidated,  etc.,  Co.  v. 
Vermont,  207  U.  S.  541,  52  L.  Ed.  327, 
28   S.    Ct.    178. 

535-23.  Disobeying  injunction  pending 
appeal.— Continuing  a  temporary  injunc- 
tion pending  an  appeal  to  the  federal  su- 
preme court  from  a  decree  of  a  circuit 
court,  dismissing  a  bill  asking  injunctive 
relief,  operates  to  continue  in  the  cir- 
cuit court  such  jurisdiction  over  the  sub- 
ject matter  of  the  litigation  and  the 
parties  as  to  enable  it  to  preserve  the 
status  quo  pending  the  appeal,  including 
the  power  to  take  cognizance  of  the  vio- 
lation of  the  injunction.  Merrimack 
River  Sav.  Bank  v.  Clay  Center,  219  U. 
S.  527,  55  L.  Ed.  320,  31  S.  Ct.  295.  See 
post,  INJUNCTIONS. 

536-26.  Excuse  for  disobedience — Name 
of  trade-mark  suggested  by  court. — The 
use  of  the  words  "Peres  Chartreux"  in- 
stead of  "Carthusian  Monks"  in  follow- 
ing the  form  of  label  which  the  court 
suggested  might  properly  be  used,  printed 
in  any  language,  as  descriptive  of  the 
liqueur  manufactured  by  those  claiming 
under  the  French  liquidator  of  the  prop- 
erties of  the  Carthusian  monks  who  had 
removed  to  Spain,  and  were  there  con- 
tinuing to  make  their  liqueur  under  the 
original  secret  formula,  should  not  be  pun- 
ished as  a  contempt  of  the  injunction  de- 
cree granting  relief  to  the  monks  against 
unfair  competition  and  infringement  of 
their  trade-marks.  Baglin  v.  Cusenier 
Co.,  221  U.  S.  580,  55  L.  Ed.  863,  31  S.  Ct. 
669. 

536-28a.  Disobeying  order  to  produce 
books  and  papers. — Consolidated,  etc., 
Co.  V.  Vermont,  207  U.  S.  541,  52  L.  Ed. 
327,  28  S.  Ct.  178.  See  post,  PRODUC- 
TION  OF  DOCUMENTS. 


370 


Vol,  IV. 


CONTINUANCES. 


540-547 


there  has  been  a  complete    settlement  between  the    parties  of  all  the    matters  in- 
volved in  the  original  equity  cause. ^^"^ 

XI.    Appeal  and  Error. 

See   ante,  Appeal  and  Error,  p.  34. 

CONTEST.— See  post,  Wills. 

CONTINGENT    REMAINDER.— See    post,    Remainde^rs,   Reversions  and 
Executory  Interests. 

CONTINGENT  RIGHTS.— See  note  542-3. 

CONTINUANCES. 
I.  Continuances  in  Civil  Cases,  371. 
A.  At  Law,  371. 

3.  As  a  Matter  of  Discretion,  371. 

II.  Continuances  in  Criminal  Cases,  371. 

C.  Continuance  as  a  ^Matter  of  Discretion,  371. 

CROSS   REFERENCES. 

See  the  title  Continuances,  vol.  4,  p.  543,  and  references  there  given. 

I.    Continuances  in  Civil  Cases. 

A.  At  Law — 3.  As  a  Matter  oe  Discretion. — See  note  544-3. 

n.    Continuances  in  Criminal  Cases. 
C.    Continuance  as  a  Matter  of  Discretion. — See  note  33. 


540-58a.  Effect  of  settlement  of  main 
cause — Dismissal. — Gompers  v.  Bucks 
Stove,  etc..   Co.,  221   U.   S.   418,   55   L.   Ed. 

797.    :^l    S.    Ct.    492. 

542-3.  Contingent  rights. — Where  one 
was  residuary  legatee  under  a  will,  in 
trust  to  hold  the  fund  "either  at  present 
invested  or  in  such  securities  as  to  my  said 
trustee  may  be  deemed  safe,"  and  to  pay 
over  the  net  income  to  the  testator's  niece 
"in  quarterly  payments  during  all  the 
period  of  her  natural  life,"  the  interest  of 
the  niece  was  not  contingent  right  to  in- 
come as  it  should  accrue  in  her  lifetime;  it 
was  a  vested  life  estate  in  a  fund,  changing 
in  investment  at  the  discretion  of  the 
trustee,  but  retaining  its  equitable  identity. 
United  States  v.  Fidelity  Trust  Co.,  222  U. 
S.  158.  159.  56  L.  Ed.  137,  32  S.  Ct.  59.  See 
post.  WILLS.  _ 

544-3.  Granting  or  refusing  continuance 
discretionary. — \^aldes  z'.  Central  .\ltagra- 
cia.  225  U.  S.  58,  73,  56  L.  Ed.  9S0,  32  S. 
Ct.  664. 

Refusing  to  grant  a  continuance  of  a 
consolidated  cause  arising  out  of  the 
financial  difficulty  of  a  corporation  whose 
propert}^  is  in  the  hands  of  a  receiver, 
based  upon  the  affidavit  as  to  the  absence 
of  material  witnesses,  is  not  an  abuse  of 
discretion,  where  the  matter  had  been 
pending  for  more  than  a  year,  and  all  the 
parties  in  interest  had  acquiesced  in  the 
steps  taken  by  the   court  for  the  purpose 


of  bringing  the  cause  to  a  speedy  con- 
clusion and  thus  avoiding  further  loss, 
and  had  complied  with  the  terms  of  the 
order  setting  the  case  for  trial  and  taking 
advantage  of  the  rights  which  it  conferred. 
Valdes  t.  Central  Altagracia,  225  U.  S.  58, 
73,    56    L.    Ed.    980,   32    S.    Ct.    664. 

As  to  review  for  an  abuse  of  this  dis- 
cretion.—See  ante,  APPEAL  AND  ER- 
ROR, p.  34. 

547-33.  It  is  elementary  that  the  matter 
of  continuance  rests  in  the  sound  discretion 
of  the  trial  court,  and  its  action  in  that 
respect  is  not  ordinarily  reviewable.  It 
would  take  an  extreme  case  to  make  the 
action  of  the  trial  court  in  such  a  case  a 
denial  of  due  process  of  law.  Franklin  v. 
South  Carolina,  218  U.  S.  161,  54  L.  Ed. 
980,  30  S.  Ct.  640. 

The  refusal  to  grant  a  continuance  of 
a  criminal  case,  sought  on  the  ground 
that  the  counsel  for  the  accused  had  not 
had  sufficient  time  or  opportunity  to  ex- 
amine the  notes  of  the  testimony  taken 
before  the  coroner  who  investigated  the 
case,  is  not  a  denial  of  due  process  of 
law,  where  the  difficulty  seems  to  have 
been  that  the  notes  of  the  testimony  were 
somewhat  illegible,  and  that  the  person 
making  them  was  not  at  hand.  Franklin 
V.  South  Carolina.  218  U.  S.  161,  54  L.  Ed. 
980.  30  S.  Ct.  640,  affirming  judgment. 
State  V.  Franklin,  (1908),  60  S.  E.  953, 
80  S.  C.  332. 


371 


548-551  CONTRACT  LABOR  LAW 

CONTINUOUS— CONTINUOUSLY— See   note   a. 


Vol.  IV. 


CONTRACT  LABOR  LAW. 
I.  statutory  Provisions,  372. 
C.  Constitutionality,  3i72. 

III.  Enforcement,  372. 

CROSS   REFERENCES. 

See  the  title  Contract  Labor  Law,  vol.  4,  p.  549,  and  references  there  given. 
In  addition,  see  ante,  Conspiracy,  p.  256. 

I.    Statutory  Provisions. 

C.     Constitutionality. — See  post,  "Enforcement,"  III. 

III.    Enforcement. 

Nature  of  Action  for  Penalty. — The  penalty  incurred  for  inducing  an 
alien  to  migrate  to  the  L'nited  States  for  the  purpose  of  performing  labor  there 
may  be  recovered  by  a  civil  action  of  debt  brought  by  the  United  States  ;iO''  but 
this  fact  does  not  preclude  a  prosecution  by  indictment  to  enforce  it.^'"' 


548-a.    Continuous    offenses. — See    ante, 
CONSPIRACY,  p.  2.56. 

Continuously     operated. — The     Act     of 

March  4,  HiOT,  makes  it  unlawful  for  com- 
mon carriers  to  permit  any  employee  to 
be  on  duty  "for  a  longer  period  than  six- 
teen consecutive  hours,"  or,  after  that 
period,  to  go  on  duty  again  until  he  has 
had  at  least  ten  consecutive  hours  off  duty, 
or  eight  hours  after  sixteen  hours  work  in 
the  aggregate,  with  a  proviso  that  no  tele- 
graph operator  and  the  like  shall  be  per- 
mitted to  be  on  duty  for  a  longer  period 
than  nine' hours  in  any  twenty-four  hour 
period  in  all  tower,  officers,  places,  and 
stations,  continuously  operated  night  and 
day,  nor  for  a  longer  period  than  thirteen 
hours  where  operated  only  during  daytime 
with  immaterial  exceptions.  The  defend- 
ant had  a  station  and  telegraph  office  at  a 
place,  which  was  shut  from  twelve  to  three 
by  day  and  by  night,  but  open  the  rest  of 
the  time.  The  government  contended  that 
this  was  a  place  "continuously  operated 
night  and  day."  The  court  said:  "We 
think  that  the  government  is  right  in  say- 
ing that  the  pro\iso  is  meant  to  deal  with 
all  offices  and  if  so,  we  should  go  farther 
than  otherwise  we  might  in  holding  offices 
not  operated  only  during  the  daytime  as 
falling  under  the  other  head.  A  trifling 
interruption  would  not  be  considered,  and 
it  is  possible  that  even  three  hours  by 
night  and  three  hours  by  day  would  not 
exclude  the  office  from  all  operation  of  the 
law,  and  to  that  extent  defeat  Mdiat  we  be- 
lieve was  its  intent."  United  States  z'.  At- 
chison, etc.,  R.  Co..  220  U.  S.  37,  55  L.  Ed. 
361,  31  S.  Ct.  362.  See  post,  INTER- 
STATE AND  FOREIGN  COMMERCE. 
551-lOa.  Nature  of  action  to  recover 
penalty. — Hepner  z\  United  States,  213  U. 


S.  103,  53  L.  Ed.  720,  29  S-  Ct.  474,  dis- 
tinguishing Lees  v.  United  States,  150  U. 
S.  476,  480,  37  L.  Ed.  1150,  14  S.  Ct.  163, 
so  holding  under  the  Act  of  March  3, 
1903,  c.  1012,  §§  4,  5,  32  Stat.  1216.  See 
ante,  ALIENS,  p.   18. 

551-lOb.  Criminal  prosecutions. — Con- 
gress, by  providing  in  the  Immigration 
Act  (Act  Feb.  20,  1907,  c.  1134,  §  5,  34 
Stat.  900  [U.  S.  Comp.  St.  Supp.  1907,  p. 
393]),  a  civil  action  for  the  recovery  of  a 
penalty  in  case  of  a  violation  of  §  4  of 
that  act,  making  it  a  misdemeanor  to 
assist  or  encourage  the  importation  of 
alien  contract  laborers,  did  not  preclude 
a  prosecution  by  indictment  to  enforce 
such  penalty.  United  States  v.  Stevenson, 
215  U.   S.  190,  54  L.   Ed.   153,  30  S.   Ct.  35. 

In  Lees  v.  United  States,  150  U.  S. 
476,  479,  37  L-  Ed.  1150,  14  S.  Ct.  163,  the 
doctrine  was  laid  down  that  a  penalty 
may  be  recovered  by  indictment  or  in- 
formation in  a  criminal  action,  or  by  a 
civil  action  in  the  form  of  an  action  for 
debt.  It  is  to  be  noted  that  this  statute 
(§  5  of  the  Immigration  Act)  does  not 
in  terms  undertake  to  make  an  action  for 
the  penalty  an  exclusive  means  of  enforc- 
ing it,  and  only  provides  that  it  may  be 
thus  sued  for  and  recovered.  There  is 
nothing  in  the  terms  of  the  act  specifically 
undertaking  to  restrict  the  government  of 
this  method  of  enforcing  the  law.  It  is 
not  to  be  presumed,  in  the  absence  of 
language  clearly  indicating  the  contrary 
intention,  that  it  was  the  purpose  of  con- 
gress to  take  from  the  government  the 
well-recognized  method  of  enforcing  such' 
a  statute  by  indictment  and  criminal  pro- 
ceedings. United  States  v.  Stevenson, 
215   U.   S.   190,   54   L.   Ed.   153,  30   S.   Ct.   35. 

Nor    does    this    conclusion    take    away 


372 


Vol.  IV.  CONTRACTS.  551-562 

Directing  Verdict. — The  court  may  direct  a  verdict  for  the  government 
plaintiff  in  an  action  for  the  penalty  incurred  for  violation  of  the  contract  labor 
law  for  inducing  an  alien  to  migrate  to  the  United  States  for  the  purpose  of  per- 
forming labor  there,  where  undisputed  testimony  shows  that  defendant  has  com- 
mitted the  offense  out  of  which  the  cause  of  action  arises  ;ii''  aliter,  in  a  criminal 
prosecution  for  violation  of  such  laws.^^'' 

CONTRACTORS.— See  post.  Working  Contracts. 
CONTRACTOR'S  BOND.— See  post,  Working  Contracts. 


CONTRACTS. 

II.  Formation  and  Essential  Elements,  373. 

B.  Essential  Elements,  373. 

5.  Certainty  and  Completeness,  373. 

IV.  Interpretation  and  Construction,  374. 
A.  Intention  of  Parties,  374. 

1.  General  Statement  of  Rule,  374. 

2.  How   Intention  Ascertained,  374. 
H5^.  \\'ritten  and  Printed  Provisions,  374. 

I.  Construction  by  Parties,  374. 
L.  Words  and  Phrases,  374. 

IX.  Discharge  of  Contract,  375. 
A.  Performance,  375. 

7.  Excuses    for   Xonperformance,   375. 

X.  Procedure,  375. 

C.  The  Declaration,  375. 

3.  Performance,  375. 

CROSS   REFERENCES. 

See  the  title  Contracts,  vol.  4,  p.  552,  and  references  there  given. 

In  addition,  see  ante.  Conditions,  p.  248;  Conflict  of  Laws,  p.  250;  Con- 
stitutional Law,  p.  264;  post.  Due  Process  of  Law;  Fraud  and  Deceit; 
Mines  and  Minerals;  Police  Power;  Principal  and  Agent;  Sales; 
United  States;    Usages  and  Customs;    A^endor  and  Purchaser. 

As  to  conformity  with  practice  of  state  courts,  see  post.  Courts.  As  to  con- 
tracts in  relation  to  mining  claims,  see  post.  Mines  and  ]^Iinerals.  As  to  con- 
tracts with  the  United  States,  see  post,  L^nited  States. 

II.    Formation  and  Essential  Elements. 
B.    Essential  Elements — 5.    Certainty  and  Completeness. — See  note  80. 

any     of     the     substantial     rights     of     the  551-llb.      United     States    v.     Stevenson, 

citizen.      He    is    entitled    to    the    constitu-  215  U.  S.  190,  54  L.   Ed.  153,  30  S.  Ct.  35, 

tional  protection  which   requires  the   gov-  citing  Hepner  v.  United  States,  213  U.  S. 

ernment  to  produce  the  witnesses  against  103,  53  L.  Ed.  720,  29  S.  Ct.  474. 

him.     United   States  z'.   Stevenson,  215  U.  562-80.    Reservation  of  power  to  change 

S.   190,  54   L.   Ed.   153,  30  S.   Ct.   35,   citing  details.— The  power  to  change  details,  re- 

Hepner   v.    United    States,    213    U.    S.    103,  served   by   the    government   in   a   contract 

53  L.  Ed.  720.  29  S.  Ct.  474.  for    a    public    work,    does    not    make    the 

551-lla.     Directing    verdict. — Hepner   v.  contract    unenforceable    for   want   of   cer- 

United    States,   213    U.    S.    103,    53    L.    Ed.  tainty  and  mutuality,  there  being  full  pro- 

720,   29   S.   Ct.   474,   so   holding  under   Act  visions    for   ascertaining   a    change    in   the 

of  March  3,  1903,  c.  1012,  §§  4,  5,  32  Stat.  compensation   where   any   such    change    is 

1214.  proper.      United    States   z\    McMullen,   222 

373 


570-575 


CONTRACTS. 


Vol.  IV. 


IV.    Interpretation  and  Construction. 
A.    Intention  of  Parties— 1.    GiJnerai,  Statement  op  Rule.— See  note  37. 
2.    How  Intention  Ascertained. — See  note  46. 
Hi.    Written    and    Printed    Provisions.— Written    Provisions    Prevail. 

— The  written  provisions  of  a  contract  will,  in  case  of  any  repugnancy,  prevail 
over  its  printed  provisions.  It  is  presumed  to  express  the  specific  intention  of 
the  parties.''''' 

I.    Construction  by  Parties. — See  note  58. 

L.    Words  and  Phrases. — See  note  66. 


U.  S.  460,  56  L.  Ed.  269,  32  S.  Ct.  128, 
reversing  judgment  (1909)  McMullen  v. 
United  States,  167  F.  460,  93  C.  C.  A.  96. 
Conflict  between  essential  provisions. 
— Irreconcilable  conflict  between  essen- 
tial provisions  of  a  contract  renders  it 
invalid.  United  States  v.  EUicott,  223  U. 
S.   524,   56   L.    Ed.   535,   32   S.   Ct.   334. 

An  irreconcilable  conflict  between  es- 
sential provisions  of  a  contract  for  the 
construction  of  barges  for  the  United 
States,  which  will  prevent  the  contractor 
from  recovering  for  failure  to  carry  it 
out,  exists  where  the  specifications,  which 
are  left  in  full  force,  prescribe  with  much 
detail  the  weight  and  dimensions  of  the 
structural  materials,  while  the  contract  it- 
self provides  for  the  construction  of  the 
barges  in  accordance  with  the  specifica- 
tions, "with  such  modifications"  as  are 
shown  by  certain  proposals  contained  in 
the  contractor's  bid,  under  which  he 
claims  the  right  to  use  materials  of  an 
inferior  size,  weight,  and  power  of  resist- 
ance. United  States  v.  EUicott,  223  U.  S. 
524,   56   L.   Ed.   535,  32   S.   Ct.   334. 

570-37.  Construction  according  to  in- 
tention of  parties. — The  object  of  con- 
struction is  to  effectuate  the  intention  of 
the  parties  in  making  a  given  contract. 
Sand  Filtration  Corp.  v.  Cowardin,  213 
U.  S.  360,  53  L.  Ed.  833,  29  S.  Ct.  509. 
See,  also,  post,  INTERPRETATION 
AND  CONSTRUCTION. 

The  erection,  pursuant  to  the  direction 
of  the  government  officer  in  charge  of  a 
temporary  liftspan,  which  was  the  most 
feasible  and  least  expensive  substitute 
which  could  be  employed  after  an  acci- 
dent during  the  performance  of  a  con- 
tract to  reconstruct  and  remodel  a  gov- 
ernment bridge  over  the  Mississippi  river 
had  carried  away  a  substantial  part  of  the 
unfinished  drawspan,  together  with  the 
false  work  supporting  the  old  structure, 
was  contemplated  by  the  contract,  so  as 
to  preclude  extra  compensation  therefor, 
where  the  immediate  opening  of  navigation, 
which  would  have  been  seriously  inter- 
rupted by  the  restoration  of  the  false 
work,  was  imminent,  and  the  contract, 
although  containing  many  minute  stipu- 
lations looking  to  uninterrupted  railway 
services  across  the  bridge,  with  no  ex- 
press requirement  as  to  the  navigability 
of  the  river,  had  fixed  a  date  for  the  com- 


pletion of  the  drawspan  sufficiently  early 
ordinarily  to  insure  noninterruption  of 
navigation.  Phoenix  Bridge  Co.  v.  United 
States,  211  U.  S.  188,  199,  53  L.  Ed.  141, 
29   S.   Ct.   81. 

572-46.  Sand  Filtration  Corp.  v.  Cow- 
ardin, 213  U.  S.  360,  53  L.  Ed.  833,  29  S. 
Ct.    509. 

574-57a.  Written  provisions  prevail. — 
Thomas  v.  Taggart,  209  U.  S.  385,  52  L. 
Ed.  845,  28  S.  Ct.  519,  affirming  judgment 
In  re  Jacob  Berry  &  Co.  (1906)  149  F. 
176,  79  C.   C.  A.   124. 

Stock  was  pledged  with  a  broker  as 
collateral  on  account.  It  was  the  evident 
purpose  of  the  parties  that  the  stock  was 
to  be  held,  as  the  receipt  shows,  as  secu- 
rity for  losses  in  purchase  or  sale  of 
stocks,  bonds  or  securities  on  account  of 
the  customer,  and  the  separate  paragraph 
of  the  receipt,  giving  the  right  to  re- 
pledge,  etc.,  and  substitute  similar  stocks, 
bonds  and  securities,  had  reference  to  the 
stock,  securities,  etc.,  obtained  in  execut- 
ing the  orders  for  purchase  made  by  the 
customer.  This  construction  of  the  re- 
ceipt is  placed  beyond  contradiction 
when  effect  is  given  to  the  words  written 
across  the  face  of  the  printed  receipt  as 
"collateral  on  account."  Thomas  v.  Tag- 
gart, 209  U.  S.  385,  389,  52  L.  Ed.  845,  28 
S.    Ct.    519. 

574-58.  Construction  by  parties. — A 
contractor  for  a  public  improvement, 
who,  pending  a  dispute  with  the  govern- 
ment as  to  his  right  to  compensation  for 
certain  work,  enters  into  a  supplemental 
contract  with  the  same  terms  and  speci- 
fications as  the  original,  with  full  knowl- 
edge of  the  meaning  affixed  by  the  gov- 
ernment to  the  terms  of  such  original 
contract,  which-  had  been  insisted  upon 
by  it  in  carrying  on  previous  operations, 
is  precluded  from  claiming  compensation 
under  the  new  contract  for  any  work  of 
that  character.  Judgment  (1906)  41  Ct. 
CI.  214,  affirmed.  Bowers,  etc.,  Dredg- 
ing Co.  V.  United  States,  211  U.  S.  176, 
53   L.   Ed.   136,  29   S.   Ct.  77. 

575-66.  Terms  given  ordinary  and  pop- 
ulcir  meaning. — 'A  contract  to  grind  sugar 
cane  implies  on  its  face,  if  read  with  any 
knowledge  of  the  business,  that  it  has  ref- 
erence to  seasons,  and  that  it  is  more 
definite  than  a  simple  grammatical  inter- 
pretation   of    the    words    would    express. 


374 


Vol.  IV. 


CONTROVERSY. 


586-598 


IX.    Discharge  of  Contract. 
A.     Performance — 7.    Excuse;s  for  Nonperformance. — See  note  29. 

X.    Procedure. 

C.    The  Declaration — 3.    Performance. — See  note  53. 

CONTRACTS  OF  AFFREIGHTMENT.— See  ante,  Carriers,  p.  216;  post, 
Ships  and  Shipping. 

CONTRACTS  OF  GUARANTY.— See  ante,  Banks  and  Banking,  p.  184. 

CONTRACTS  OF  HIRE.— See  ante,  Bailments,  p.  167;  post,  Master  and 
Servant. 

CONTRIBUTION  AND  EXONERATION. 

I.  Contribution,  375. 

CROSS  REFERENCES. 

See  the  title  Contribution  and  Exoneration,  vol.  4,  p.  595,  and  references 
there  given. 

I.    Contribution. 
Between  Wrongdoers. — See  note  4. 


CONTRIBUTORY  INFRINGEMENT.— See  note  a. 
CONTRIBUTORY     NEGLIGENCE.— See     ante,     Carriers, 
Master  and  Servant;  Negligence;  Street  Railroads. 
CONTROVERSY.— See  note  2. 


p.    216;    post, 


An  illustration  suggested  at  the  argument 
brings  it  home  to  those  of  us  whose  ex- 
perience has  been  in  the  north.  A  con- 
tract to  reap  a  field  of  wheat  witii  no 
mention  of  time  would  not  leave  the  con- 
tractor free  to  choose  his  own  time.  The 
grinding  of  cane  must  be  done  in  the 
grinding  season,  and  a  contract  to  grind 
is  a  contract  to  grind  in  the  grinding  sea- 
son. Parol  evidence  may  be  necessary 
to  show  what  that  season  is  in  a  given 
place,  as  it  constantly  is  in  order  to  trans- 
late words  and  the  implications  of  words 
into  things;  but  the  season  when  ascer- 
tained is  the  limit  by  the  very  meaning 
of  the  words  used,  when  used  in  a  busi- 
ness contract  made  with  regard  to  one 
of  the  great  industries  of  the  world." 
Porto  Rico  Sugar  Co.  v.  Lorenzo,  222  U. 
S.    481,    482,    56    L.    Ed.    277,    32    S.    Ct.    133. 

586-29.  Subsequent  inevitable  accident 
or  contingency. — Failure  to  perform  an 
absolute  undertaking  to  grind  sugar  cane 
during  the  grinding  season  is  not  excused 
by  the  repeated  breaking  down  of  the  ma- 
chinery. Porto  Rico  Sugar  Co.  v.  Lo- 
renzo, 222  U.  S-  481,  56  L.  Ed.  277,  32  S. 
Ct.    133. 

593-53.  Declaration  as  to  performance. 
— Where  an  action  is  upon  a  contract 
subject  to  a  condition  precedent,  the  per- 
formance of  that  condition  must  be  aver- 
red and  proved;  but  if  the  contract  sued 
upon  is  subject  to  a  condition  subsequent, 
there  is   no  occasion  for  any  averment  in 


respect  to  the  condition.  It  is  a  matter  of 
defense  which  must  come  from  the  other 
side.  Title  Guaranty,  etc.,  Co.  v.  Nichols, 
324  U.  S.  346,  351,  56  L.  Ed.  795,  32  S.  Ct. 
475. 

596-4.  Generally  not  allowed  between 
wrongdoers.^Bigelow  v.  Old  Dominion 
Copper,  etc.,  Co.,  225  U.  S.  Ill,  56  L.  Ed. 
1009,  32  S.  Ct.  641. 

597-a.  Contributory  infringement. — The 
sale  of  ink  to  a  purchaser  of  a  rotary 
mimeograph  sold  with  a  license  restriction 
that  it  could  be  used  only  with  the  ink 
supplied  by  the  patentee,  with  the  expecta- 
tion that  the  ink  sold  would  be  used  in 
connection  with  such  mimeograph,  con- 
stitutes contributory  infringement  of  the 
patent.  Henry  v.  Dick  Co.,  224  U.  S.  1,  56 
L.  Ed.  645,  32  S.  Ct.  364.  See  post,  PAT- 
ENTS. 

598-2.  Case  and  controversy  distin- 
guished.— "A  'case'  was  defined  by  Mr. 
Chief  Justice  Marshall  as  early  as  the 
leading  case  of  Marbury  v.  Madison,  1 
Cranch  137.  2  L.  Ed.  60,  to  be  a  suit  insti- 
tuted according  to  the  regular  course  of 
judicial  procedure.  And  what  more,  if 
anything,  is  meant  in  the  use  of  the  term 
controversy?  That  question  was  dealt 
with  by  Mr.  Justice  Field,  at  the  circuit,  in 
the  case  of  In  re  Pacific  R.  Commission, 
32  Fed.  241,  255.  Of  these  terms  that 
learned  justice  said:  'The  judicial  article 
of  the  constitution  mentions  cases  and 
controversies.     The  term  controversies,  if 


375 


601 


COPY. 


Vol.  IV. 


CONVERSION  AND  RECONVERSION.— See  the  title  Conversion  and 
Re:coxve;rsiox,  vol.  4,  p.  599,  and  references  there  given. 

CONVEYANCE.— See  note   1. 

COPIES. — See  ante.  Clerks  of  Court,  p.  241 ;  post,  Documentary  Evi- 
dence ;    Records. 

COPY. — The  common  understanding  of  the  word  "copy"  is  a  reproduction 
or   duplication   of   a   thing.'*'' 


distinguishable  at  all  from  "cases."'  is  so 
in  that  it  is  less  comprehensive  than  the 
latter,  and  includes  only  suits  of  a  civil 
nature.  Chisholm  v.  Georgia,  2  Dall.  419, 
432,  1  L.  Ed.  440,  1  Tucker's  Bl:  Com.  App. 
420,  421.  By  cases  and  controversies  are 
intended  the  claims  of  litigants  brought 
before  the  courts  for  determination  by 
such  regular  proceedings  as  are  established 
by  law  or  custom  for  the  protection  or  en- 
forcement of  rights,  or  the  prevention, 
redress,  or  punishment  of  wrongs.  When- 
ever the  claim  of  a  party  under  the  consti- 
tution, laws,  or  treaties  of  the  United 
States  takes  such  a  form  that  the  judicial 
power  is  capable  of  acting  upon  it,  then  it 
has  become  a  case.  The  term  implies  the 
existence  of  present  or  possible  adverse 
parties,  whose  contentions  are  submitted 
to  the  court  for  adjudication.'  "  Muskrat 
V.  United  States,  219  U.  S.  346,  55  L.  Ed. 
246,  31  S.  Ct.  250.  See  ante,  APPEAL 
AND  ERROR,  p.  34;  post,  COURTS;  RE- 
MOVAL OF  CAUSES. 

601-1.  Conveyance  includes  a  lease. — 
The  conveyance  in  §  98,  of  the  Act  of  June 
6,  1900,  requiring  recordation  of  convey- 
ances, included  the  lease  of  a  mining  claim. 
Waskey  v.  Chambers,  224  U.  S.  564,  56  L. 
Ed.  885,  32  S.  Ct.  597.  See  post,  RE- 
CO  RDING  ACTS.  See,  also,  post, 
DEEDS;  FRAUDULENT  AND  VOL- 
UNTARY CONVEYANCES. 


601-4a.    Common  understanding  of  copy. 

— White-Smith,  etc.,  Pub.  Co.  v.  Apollo 
Co.,  209  U.  S.  1,  17,  52  L.  Ed.  655,  28  S. 
Ct.  319. 

A  copy  of  a  musical  composition  is  "a 
written  or  printed  record  of  it  in  intelligi- 
ble notation."  It  may  be  true  that  in  a 
broad  sense  a  niechanical  instrument  which 
produces  a  tune  copies  it;  but  this  is  a 
strained  and  artificial  meaning.  When  the 
combination  of  musical  sounds  is  repro- 
duced to  the  ear  it  is  the  original  tune  as 
conceived  by  the  author  which  is  heard. 
These  musical  tones  are  not  a  copy  which 
appeals  to  the  eye.  In  no  sense  can  mu- 
sical sounds  which  reach  us  through  the 
sense  of  hearing  be  said  to  be  copies  as 
that  term  is  generally  understood,  and  as 
it  was  intended  to  be  understood  in  the 
copyright  statutes.  A  musical  composition 
is  an  intellectual  creation  which  first  ex- 
ists in  the  mind  of  the  composer;  he  may 
play  it  for  the  first  time  upon  an  instru- 
ment. It  is  not  susceptible  of  being  copied 
until  it  has  been  put  in  a  form  which 
others  can  see  and  read.  Perforated  rolls 
which,  when  used  in  connection  with  mu- 
sical j)iano  players,  reproduce  in  sound 
copyrighted  musical  compositions,  are  not 
copies  within  the  meaning  of  the  Copy- 
right Act.  White-Smith,  etc..  Pub.  Co.  v. 
Apollo  Co.,  209  U.  S.  1,  17,  52  L.  Ed.  655, 
28  S.  Ct.  319.     See  post,  COPYRIGHT. 


376 


Vol.  IV.  COPYRIGHT.  603-604 


COPYRIGHT. 

I.  Definition,  2)77. 
II.  Literary  Property  at  Common  Law,  277. 

QYz.  Effect  of  Public  Presentation  of  Play,  277. 

III.  Copyright  under  the  Constitution  and  Statutes  of  the  United  States, 

.  378. 

A.  In  General,  378. 

B.  What  May  Be  Copyrighted,  Z7&. 

3.  Painting  and  Engraving,  378. 

C.  Persons  Entitled  to  Copyright,  378. 

4.  Assignee  of  the  Author,  378. 

5.  Citizens  of  a  Foreign  State,  27^. 

D.  Proceedings  to  Obtain  Copyright,  378. 

5.  Notice  of  Copyright,  378. 

a.  Necessity  of  Notice,  378. 

c.  Form  and  Essential  Requisites  of  Notice,  378. 

F.  What  the  Copyright  Protects  and  the  ^Measure  of  Protection,  378. 

G.  Effect  of  Prior  Publication,. 379. 
H.  Transfer  of  Copyright,  379. 

1.  Right  to  Transfer,  379. 

3^.  Construction  of  Instruments  Transferring  the  Right,  379. 
I.  Infringement  of  Copyright,  379. 

1.  What  Constitutes  an  Infringement,  379. 

2.  Remedies  and  Procedure,  380. 

b.  Injunction  and  Accounting,  380. 

(1)  Right  to,  380. 

d.  Penakies,  380. 

(2)  Penalties   for  an  Infringement  of  Copyright,  380. 
(a)   Rule  Stated  and  Construed,  380. 

CROSS   REFERENCES. 

See  the  title  Copyright,  vol.  4,  p.  602,  and  references  there  given. 
In  addition,  see  ante,  Appeal  and  Error,  p.  34;    Constitutionai,  Law,  p. 
264;   post,  Courts;   Jurisdiction.  / 

I.    Definition. 

A  copyright  is  the  exclusive  privilege,  secured  according  to  certain  legal 
forms,  of  printing,  or  otherwise  multiplying,  publishing,  and  vending  copies  of 
certain  literary  or  artistic  productions. ^'^ 

n.    Literary  Property  at  Common  Law. 
C|.    Eff"ect  of  Public  Presentation  of  Play. — The  exclusive  common-law 
performing  rights  of  the  owners  of  an  unprinted  and  unpublished  play  are  not 
lost  by  public  presentation. ^^a 

603-la.    Definition. — American    Tobacco  States  to  protection  against  the  unauthor- 

Co.  V.  Werckmeister,  207  U.   S.  284,  52  L.  ized   performance   of  a   copyrighted   adap- 

Ed.  208,  28  S.  Ct.  72.  tation     substantially     identical     with     the 

604-12a.  Effect  of  public  presentation  of  original  play,  although  in  England,  under 

play.— Ferris  v.  Frohman,  223  U.  S.  424,  56  5  &  6  Vict.  chap.  45.  §  20.  the  first  public 

L.  Ed.  492,  32  S.  Ct.  263.  performance   of  a  play  is   deemed   equiva- 

Public    performance    in    England    of    an  lent  to   a  publication,    destroying  all    com- 

unprinted  and  unpublished  play  by  English  mon-law  rights  there.     Ferris  v.  Frohman,. 

authors    does    not    deprive    the    owners    of  223  U.  S.  424,  56  L.  Ed.  492,  32  S.  Ct.  263. 
their    common-law    right    in    the    United 

377 


605-613  COPYRIGHT.  Vol.  IV. 

III.  Copyright  under  the  Constitution  and  Statutes  of  the  United  States. 

A.  In  General. — See  notes  18,  19. 

B.  What  May  Be  Copyrighted— 3.  Painting  and  Engr^wing. — The  at- 
tempted duplication  of  an  existing  copyright  in  a  painting  by  depositing  the 
same  photograph  of  the  same  painting  under  a  new  title,  and  with  but  a  slight 
change  in  description,  is  void,  and  can  not  be  made  the  basis  of  a  suit  for  in- 
fringement."^'* 

C.  Persons  Entitled  to  Copyright — \.  Assignee  of  the  Author.— The 
legal  assignee  of  the  author  is  entitled  to  copyright.^^^  An  artist  may,  before 
publication  of  his  painting  assign,  independently  of  the  ownership  of  the  paint- 
ing itself,  the  right  or  privilege  of  taking  out  the  copyright.^^'' 

5.  Citizens  of  a  Foreign 'State. — The  action  of  the  President  is  a  condition 
of  the  right  of  a  foreign  citizen  to  the  benefits  of  the  Act  of  March  3,  1891, 
§  13.  giving  the  right  of  copyright  to  citizens  of  a  foreign  state  when  such  state 
oermits  to  citizens  of  the  United  States  the  benefit  of  copyright  on  substantially 
the  same  basis  as  its  own  citizens,  or  is  a  party  to  an  international  agreement 
which  provides  for  reciprocity  in  the  granting  of  copyright,  by  the  terms  of 
which  agreement  the  United  States  may,  at  its  pleasure,  become  a  party,  the 
existence  of  such  condition  to  be  determined  by  the  President  by  proclamation, 
made  from  time  to  time,  as  the  purposes  of  the  act  may  require.-^^^ 

D.  Proceedings  to  Obtain  Copyright — 5.  Notice  of  Copyright — a. 
Necessity  of  Notice. — Tlie  statute  requiring  notice  of  copyright  does  not  require 
notice  of  the  American  copyright  on  books  published  abroad  and  sold  only  for 
use  there. ^^^ 

c.  For))!  and  Essential  Requisites  of  Notice. — In  the  case  of  a  painting,  in- 
scribing the  copyright  notice  upon  the  published  copies  without  placing  such  in- 
scription upon  the  original  painting  satisfies  the  requirement  of  the  statute."^'* 

F.  What  the  Copyright  Protects  and  the  Measure  of  Protection. — 
The  exclusive  right  given  to  authors  by  federal  statute,'"^  to  dramatize  their 
works,  extends  to  the  public  exhibition  of  moving  pictures  of  the  incidents  of  a 

605-18.  Protection  to  copyrights  wholly  Campbell  Art  Co.,  214  U.  S.  236,  53  L.  Ed. 

statutory.— While-Smith,  etc.,  Pub.  Co.  v.  979,  29  S.  Ct.  628,  affirming  155  Fed.  Rep. 

.\pollo  Co.,  209  U.  S.  1,  52  L.  Ed.  655,  28 'S.  116,  83  C.  C.  A.  576. 

Ct.  319.  133  O.  G.  762,  affirming  147  Fed.  611-65a.  Notice  of  copyright  not  required 

Rep.  226,  77  C.  C.  A.  368;  American  To-  on  books  published  abroad.— United   Dic- 

bacco  Co.  V.  Werckmeister,  207  U.  S.  284,  tionary  Co.  r,  Merriam  Co.,  208  U.  S.  260, 

.52  L.    Ed.  208,    28  S.  Ct.    72,  affirmmg    146  go   L.   Ed.  478,  28   S.  Ct.  290,  affirming  146 

Fed.   Rep    375,  76  C.  C.  A.  647.  fed.  Rep.  354,  76  C.  C.  A.  470. 

605-19.  Power  to  grant  copyrights  vested  a       a                              •   w  •          .  i     .    u 

in  congress  by  the  constitution.-Ameri-  'J"    American    copyright  is    not  lost    by 

can  Tobacco  Co.  v.  Werckmeister,  207  U.  P^^blishing   a   work   abroad   and    sellmg   it 

S.  284,  52  L.  Ed.  208.  28  S.  Ct.  72,  affirming  ^°/  ""^  ^^^i"^  without  inserting  the  notice 

146  Fed.  Rep.  375,  76  C.  C.  A.  647.  i°i^/?^;nf  ^s  A%   .""47tt    Q    r  ""'    i!' 

606-33a.  Painting.-Caliga  v.  Inter  Ocean  \l'\  "■  ^il^' V'        ?k     -'^  ^V'P      ?^P-  ^*- 

Newspaper   Co..   215   U.   S.   182,   54   L.   Ed.  ^^^,^'  P'  ^^^l'  f^"^*  be  inserted  m  the  sev- 

150,  30  S.  Ct.  38,  affirming  157  Fed.  R.  186,  f  ^j    copies    of    every    edition    published 

84  C    C    A^   634  Judgment,  G.  &  C.  Merriam  Co.  v.  United 

608-49a.  Assignee   of  author  entitled  to  ?^^V°."^'^^°- i^^^r?  ^^^  K\-^^^'  ^^  *^-^^- 

copyright.— American      Tobacco      Co.      v.  A.    4-0,   affirmed.      United    Dictionary   Co. 

Werckmeister,  207  U.  S.  284,  52  L.  Ed.  208,  't.^.^J"^"?,  ^°-  ^^^   U.   S.   260,   52   L.   Ed. 

28   S.  Ct.   72,   affirming  146   Fed.   Rep.  375.  ^'^^  ^^  ^-  ^^-  ~^°- 

76  C.  C.  .\.  647.  612-75a.    Copyright    notice    need    not  be 

608-49b.    When  artist  may  assign  right  placed  upon  original  painting. — American 

of    taking    out    copyright. — American    To-  Tobacco   Co.   v.   Werckmeister,   207   U.    S. 

bacco  Co.  '•.  Werckmeister,  207  U.  S.  284,  284,   52   L.   Ed.   208,  28   S.   Ct.   72,  affirming 

52  L.    Ed.  208,   28   S.   Ct.   72,  affirming  146  146  Fed.  Rep.  375.  76  C.  C.  A.  647. 

Fed.  Rep.  375.  76  C.  C.  A.  647.  613-77a.   Rev.   Stat..   §   4952,   as   amended 

609-51a.  Conditions  under  which  foreign  by  Act  of  March  3,  1891,  ch.  565,  26  Stat, 

citizens  may  acquire  copyright.— Bong  v.  1106  (U.  S.  Comp.  Stat.  1901,  p.  3406). 

378 


Vol.  IV. 


COPYRIGHT. 


613-614 


copyrighted  work.'"''  The  statutes  so  construed  are  not  invahd  as  exceeding  the 
power  given  to  congress  by  the  constitution'''^  to  secure  to  authors  for  a  Hmited 
time  the  exclusive  right  to  their  writings.''*^  The  sole  right  to  vend  a  copy- 
righted book,  secured  by  statute  to  the  owner  of  the  copyright,'''^  does  not  in- 
clude the  right  to  impose,  by  a  notice  printed  on  the  same  page  with  the  notice 
of  the  copyright,  a  limitation  as  to  the  price  at  which  the  book  shall  be  sold  at 
retail  by  future  purchasers  with  whom  there  is  no  privity  of  contract."^'' 

G.  Effect  of  Prior  Publication. — Entering  an  original  painting  with  the 
copyright  reserved  at  an  exhibition  of  the  Royal  Academy,  whose  by-laws  pro- 
hibit copying,  is  not  such  a  publication  as  defeats  the  right  to  take  out  a  copy- 
right in  such  painting.^2^ 

H.  Transfer  of  Copyright — 1.  Right  to  Traxsfi^r. — The  author  of  a 
painting,  who,  not  being  a  citizen  or  subject  of  a  foreign  state  with  which  the 
United  States  has  copyright  relations,  is  excluded  by  federal  statute^'^  from  the 
benefit  of  copyright,  can  not  convey  such  right  to  a  person  whose  citizenship  is 
such  as  to  entitle  him  to  the  benefit  of  copyright.^^^ 

35^.  Construction  of  Instruments  Transferring  the  Right. — Whether 
it  was  the  purpose  of  the  parties  to  make  a  complete  transfer  of  the  copyright  is 
to  be  determined  by  construing  the  terms  of  the  instrument  making  the  transfer 
in  the  light  of  the  attending  circumstances. ^^'^ 

I.  Infringement  of  Copyright — 1.  What  Constitutes  an  Infringe- 
ment.— See  note  92.  The  pubhc  exhibition  of  moving  pictures  of  the  incidents 
of  a  copyrighted  book  constitutes  an  infringement  of  the  exclusive  right  given  to 
the  author  by  the  federal  statutes  to  dramatize  his  work;^-^  and  the  makers  of 
moving  picture  films  of  the  incidents  of  such  a  book,  who  sell  the  same  with  a 


613-77b.  What  the  copyright  protects. — 

Kalem  Co.  z\  Harper  Bros.,  222  U.  S.  55, 
56  L.  Ed.  92,  32  S.  Ct.  20.  affirming  94  C. 
C.  A.  429.  169  Fed.  Rep.  61. 

613-77C.  Art.  I,  §  8. 

613-77d.  Kalem  Co.  v.  Harper  Bros.,  222 
U.  S.  55,  56  L.  Ed.  92,  32  S.  Ct.  20,  affirming 
94  C.  C.  A.  429,  169  Fed.  Rep.  61. 

613-77e.  Rev.  Stat.,  §  4952,  U.  S.  Comp. 
Stat.  1901,  p.  3406. 

613-77f.  No  right  to  impose  limitation  as 
to  price  of  book. — Bobbs-Merrill  Co.  v. 
Straus.  210  U.  S.  339,  52  L.  Ed.  1086,  28  S. 
Ct.  722. 

613-83a.  Effect  of  entering  an  original 
painting  at  an  exhibition. — American  To- 
bacco Co.  V.  Werckmeister,  207  U.  S.  284, 
52  L.  Ed.  208,  28  S.  Ct.  72,  affirming  146 
Fed.  Rep.  375,  76  C.  C.  A.  647. 

614-87a.  Act  of  March  3,  1891  (26  Stats, 
at  L.  1107.  Chap.  565,  U.  S.  Comp.  Stat. 
1901,  p.  3406),  §  13.  See  ante,  "Citizens 
of  a  Foreign  State,"  III,  C,  5. 

614-87b.  Transfer  by  author  who  is  a 
citizen  of  a  foreign  state. — Bong  v.  Camp- 
bell Art  Co.,  214  U.  S.  236,  53  L.  Ed.  979, 
29  S.  Ct.  628,  affirming  83  C.  C.  A.  576,  155 
Fed.  R.  116. 

614-90a.  Construction  of  instrument 
making  the  transfer. — American  Tobacco 
Co.  V.  Werckmeister,  207  U.  S.  284,  52  L. 
Ed.  208,  28  S.  Ct.  72,  affirming  146  Fed. 
Rep.  375,  76  C.  C.  A.  647. 

A  complete  transfer  of  the  property 
right  of  copyright   existing  in   an   original 


painting,  and  not  a  mere  license  or  per- 
sonal privilege,  must  be  deemed  intended 
by  an  instrument  executed  by  the  artist, 
reciting  that,  for  a  named  consideration, 
he  transfers  the  copyright  in  his  painting, 
where  there  is  no  evidence  of  any  inten- 
tion on  his  part  to  retain  any  further  in- 
terest in  the  copyright,  and  he  offers  the 
painting  for  sale  with  the  copyright  re- 
served. Judgment  (1906)  146  F.  375,  76 
C.  C.  A.  647,  affirmed.  American  Tobacco 
Co.  r.  Werckmeister,  207  U.  S.  284,  52  L. 
Ed.  208,  28   S.  Ct.  72. 

614-92.  Perforated  rolls  vsrhich,  when 
used  in  connection  with  mechanical  piano 
players,  reproduce  in  sound  copyrighted 
musical  compositions,  do  not  infringe  the 
copvright  in  such  compositions,  which, 
under  Rev.  St.  U.  S.,  §  4952  [U.  S.  Comp. 
St.  Supp.  1907,  p.  1021],  secures  to  the 
composer  the  sole  liberty  of  printing  and 
reprinting,  publishing,  completing,  copy- 
ing, executing,  finishing,  and  vending  the 
same.  Judgment  (1906)  147  F.  226,  77  C. 
C.  A.  368,  affirmed.  White-Smith,  etc., 
Pub.  Co.  V.  Apollo  Co.,  209  U.  S.  1,  52  L- 
Ed.  655,  28  S.  Ct.  319. 

614-92a.  Public  exhibition  of  moving 
pictures  of  incidents  of  copyrighted  book. 
— Rev.  Stat.,  §  4952,  as  amended  by  act 
March  3,  1891,  ch.  565.  26  Stat.  1106  (U.  S. 
Comp.  Stat.  1901,  p.  3406).  Kalem  Co.  v. 
Harper  Bros..  222  U.  S.  55,  56  L.  Ed.  92,  32 
S.  Ct.  20,  affirming  94  C.  C.  A.  429,  169  Fed. 
Rep.  61. 


379 


614-619 


COPYRIGHT. 


Vol.  IV. 


view  to  their  use  for  dramatic  reproduction,  infringe  such  exchisive  right.^-*" 

2.  Remedies  and  Procedure — b.  Injunction  and  Accounting — (1)  Right  to. 
— See  note  99. 

d.  Penalties — (2)  Penalties  for  an  Infringement  of  CopyrigJit — (a)  Rule 
Stated  and  Construed. — See  note  16.  The  penalty  prescribed  by  the  statute, ^'-^^ 
can  be  recovered  only  for  sheets  found  in  the  possession  of  the  defendant,  except 
in  the  case  of  infringing  copies  of  a  copyrighted  painting  or  statute,  in  which 
case  the  copies  need  not  be  found  in  the  infringer's  possession  in  order  to  render 
him  liable  for  the  penalty  imposed;  the  words  of  the  statute  being,  "for  any  copy 
of  the  same  in  his  possession,  or  by  him  sold  or  exposed  for  sale."^'*"  The  stat- 
ute contemplates  but  a  single  action,  in  which  the  offender  shall  be  brought  into 
court,  the  plates  and  sheets  seized  and  adjudicated  to  the  owner  of  the  copy- 
right, and  the  penalty  provided  for  by  the  statute  recovered  i^'*'^  and  this  is  so 
even  where  the  state  practice  affords  no  form  of  action  in  which  the  double  rem- 
edy may  be  enforced,  since  under  the  broad  power  conferred  by  federal  stat- 
ute,^ ^"^  the  federal  court  may  so  frame  its  process  and  writs  as  to  give  full  relief 
in  one  action. ^'^"'  The  remedies  of  forfeiture  and  penalty  and  of  injunction,  given 
by  the  statutes^'^'  to  the  owner  of  a  copyrighted  map  in  case  of  infringement,  are 
exclusive,  and  preclude  any  resort  to  an  action  at  law  to  recover  the  damages  sus- 
tained by  reason  of  the  infringement. ^^^ 

614-92b.  Kalem  Co.  v.  Harper  Bros.,  222  of  a  copyright  in  certain  engravings  of  an 

U.  S.  55,  56  L.  Ed.  92,  32  S.  Ct.  20,  affirming  action  of  replevin  not  prosecuted  to  judg- 

94  C.  C.  A.  429,  169  Fed.  Rep.  61.  ment,  to  enforce  the  forfeiture  of  infring- 

616-99.    Violation    of    right    will    be    re-  ing    copies,    precludes    him    from    subse- 

strained  by  injunction. — Rev.  Stat.,  §  4970.  quently     bringing     and     maintaining     an 

Globe  Newspaper  Co.  z'.  Walker,  210  U.  S.  action  of  assumpsit  to  recover  the  penalty 

356,  52  L.  Ed.  1096,  28  S.  Ct.  726,  reversing  provided  for.     Hills  &  Co.  v.  Hoover,  220 


140  Fed.  Rep.  305,  72  C.  C.  A.  77,  2  L.  R. 
A.  (N.  S.)  913.  See,  generally,  post,  IN- 
JUNCTIONS. 

Injunctive  relief  will  not  be  granted  to 


U.  S.  329,  55  L.  Ed.  485,  3i  S.  Ct.  402. 

And  a  separate  action  to  recover  the 
penalty  can  not  be  maintained  after  judg- 
ment of  forfeiture  of  the  infringing  copies 


the    proprietor    of    a    mercantile    agency       has   already  been   recovered.     Werckmeis- 
publishing  at  intervals  a  copyrighted  book       ter   v.    American   Tobacco    Co.,    207    U.    S. 


giving  information  as  to  the  business, 
capital,  and  credit  rating  of  merchants, 
manufacturers,  and  traders,  because  of  the 
improper  use  of  such  work  with  respect  to 
a  few  names  by  a  corporation  publishing 
a  similar  book  limited  to  those  engaged 
in  lumber  and  kindred  trades,  where  the 
latter   book   contains   about   60,000   names, 


375,  52  L.  Ed.  254,  28  S.  Ct.  124,  affirming 
74  C.  C.  A.  682,  144  Fed.  1023. 

619-19d.  United  States  Rev.  Stat.,  §  716 
(U.  S.  Comp.  Stat.  1901,  p.  580). 

619-19e.  Hills  &  Co.  v.  Hoover,  220  U. 
S.  329,  55  L.  Ed.  485,  31  S.  Ct.  402. 

The  conformity  "as  near  as  may  be"  to 
the  state  practice,  enjoined  upon  the  fed- 


25  per  cent  more  than  the  former,  and  the  ^''\  ^ict.c  pia^u^c  cujumeu  upon  u.e  cu- 
subjects  of  information  given  b;  it  con-  ^'^^  '"''c.^l^^om  ^^  ^^I"  5'^*-'  §  l'^'  "^  ^. 
cerning  the  persons  named   are   six  times       ^"^'^P-  ^,^^^-  ^^^^'  P-  684,  does  not  prevent 


as  many  as  are  given  by  the  other  work. 
Dun  V.  Lumbermen's  Credit  Ass'n,  209  U. 
S.  20,  52  L.  Ed.  663,  28  S.  Ct.  335. 

618-16.  Forfeiture  and  penalty  for  in- 
fringement of  copyright. — Globe  News- 
paper Co.  V.  Walker,  210  U.  S.  356,  52  L.  Ed. 
1096,  28  S.  Ct.  726,  reversing  140  Fed.  Rep. 
305,  72  C.  C.  A.  77,  2  L.  R.  A.  (N.  S.)  913. 

619-19a.  Rev.  Stat.,  §  4965  (U.  S.  Comp. 
Stat.  p.  3414). 

619-19b.  For  what  sheets  or  copies  pen- 
alty is  recoverable. — American  Litho- 
graphic Co.  V.  Werckmeister,  221  U.  S. 
603,  55  L.  Ed.  873,  31   S.  Ct.  676. 

619-19C.  Statute  contemplates  but  a 
single  action. — Werckmeister  z\  American 
Tobacco  Co.,  207  U.  S.  375,  52  L.  Ed.  254, 
28  S.  Ct.  124,  affirming  74  C.  C.  A.  682,  144 


a  federal  court,  under  the  broad  powers 
conferred  by  §  716  (U.  S.  Comp.  Stat.  1901, 
p.  580),  from  framing  its  process  and  writs 
so  as  to  give  the  full  relief  in  one  action 
by  way  of  the  forfeiture  and  penalties 
prescribed  by  §  4965  in  case  of  the  in- 
fringement of  a  copyright  in  engravings, 
although  the  state  practice  may  afford  no 
form  of  action  in  which  this  double  rein- 
edy  may  be  enforced.  Hills  &  Co.  v. 
Hoover,  220  U.  S.  329,  55  L.  Ed.  485,  31  S. 
Ct.  402.     See  ante,  COURTS. 

619-19f.  U.  S.  Rev.  Stat.,  §§  4965,  4970, 
U.  S.  Comp.  Stat.  1901,  pp.  3414,  3416. 

619-19g.  Statutory  remedies  exclusive. 
—Globe  Newspaper  Co.  v.  Walker,  210  U.  S. 
356,  52  L.  Ed.  1096,  28  S.  Ct.  726,  reversing 
140  Fed.  Rep.  305,  72  C.  C.  A.  77,  2  L.  R. 
A.  (N.  S.)  913.     See  ante,  "Injunction  and 


Fed.  1023. 
Therefore   the   institution   by   the   owner       Accounting,"  III,  I,  2,  b. 

380 


Vol.  IV.  CORPORATIONS. 

CORAM  NOBIS. — See  ante,  Appeal  and  Error,  p.  34;  post,  Judgments 
AND  Decrees. 

CORK.— See  post,  Manufacture. 

CORONERS. — See  the  title  Coroners,  vol.  4,  p.  620,  and  references  there 
given. 

CORPORATION  COMMISSION.— See  ante.  Carriers,  p.  216;  post,  Corpo- 
rations; Railroads;  Telegraphs  and  Telephones. 

CORPORATIONS. 

II.  Definitions,  Distinctions  and  General  Considerations,  383. 

A.  Definitions,  383. 

1.  Corporation.  383. 

C.  Corporation  as  Entity  Distinct  from  Shareholders,  383. 

D.  Governmental  Regulation  and  Control,  383. 

1.  In  General,  383. 

b.  Regulation   Generallv.  383. 

2.  By  State,  383. 

a.  Implied  Power,  383. 

b.  Reserved   Power.   384. 

e.  Corporate  Books  and  Papers.  384. 
F.  Corporation  as  Person  or  Citizen,  385. 

1.  As  Person  or  Inhabitant,  385. 

a.  As  Person,  385. 

2.  As    Citizen,   385. 

3.  As  Life  in  Being  within  Rule  against  Perpetuities,  386. 

H.  Dual  Incorporation  and  Existence  Out  of  State  Granting  Charter,  386. 
1.  Dual  Incorporation,  386. 

a.  Incorporation   in   More  than  One  State,   386. 

(1)  Statement   of    Principle,    386. 

III.  Promoters  and  Acts  Prior  to  Incorporation,  386. 

B.  Promoter's    Profits,   386. 

1.  In  General,  386. 

2.  Contracts  before   Increase   of   Stock,   386. 

IV.  Creation  and  Organization,   387. 
A.  Power  to  Create,  387. 

1.  In  General,  Z^7. 

b.  Necessity   for   Legislative   Authority.  387. 

c.  Power  of  State.  387. 

(2)  Imposition   of   Conditions,  387. 

C.  Beginning,  Duration  and  Termination  of  Corporate  Existence,  387. 

2.  Duration   and   Termination   of   Corporate   Existence,   387. 

V.  Defective  and  Irregular  Incorporation,  387. 

A.  De  Facto  Corporations,  387. 

VIII.  Charters  and  Their  Amendment,  Repeal  and  Extension,  3S7. 
A^.  Incorporation  of  Statutes  or  Documents  by  Reference,  387. 
C.  Charter  as   Contract,  and  Amendment  or  Repeal  Thereof.  388. 
1.  Charter  as  Contract  Inviolable  by  Legislation,  388. 
a.  In  General,  388. 

(1)   Statement  of  Rule,  388. 

(7)   Charter  Exemption  from  Taxation  as  a  Contract,  388. 

381 


CORPORATIONS.  Vol.  IV. 

d.  What  Constitutes  Impairment  of  the  Contract,  388. 

(2)   Alteration,    Restriction    or    Regulation,    388. 
4.  Where  Power  Is  Reserved  to  Amend  or  Repeal,  388. 

a.  In  General,  388. 

(4)   Mode  of  Reservation,  388. 

b.  Scope  and  Construction  of  Clause  Reserving  Right,  388. 

e.  Extent  of  Right  to  Amend  and  What  Constitutes  Impairment, 

389. 
(1)   In  General,  389. 

(4)   Examples   of  Valid  Regulations,  390. 
(7)   Municipal  Action  as  Impairment,  390. 

f.  Construction  of  Amendment,  391. 

h.  Statute  in  Efifect  but  Not  in  Terms  an  Amendment,  391. 

XI.  Corporate  Powers,  391. 

A.  In   General,  391. 

1.  Such  as  Charter  and  Laws  Confer,  391. 

a.  In  General,  391. 

b.  Implied  Powers,  391. 

2.  Construction,  392. 

a.  In  General,  392. 

B.  To  Acquire,  Hold  and  Dispose  of  Property,  392. 

2.  Power  to  Acquire  and  Hold  Lands,  392. 

3.  Control  and  Disposition  Thereof,  392. 

C.  To  Alienate  Franchise  or  Property  Necessary  Thereto,  392. 

1.  Private  Corporations  Generally,  392. 
a.  General  Rule,  392. 
G.  To  Contract,  392. 

XIV.  Actions  by  and  against  Corporations,  393. 

D.  Averment  and  Proof  of  Incorporation,  393. 
XV.  Consolidation  and  Succession,  393. 

A.  Consolidation,  393. 

1.  Right  to  Consolidate  and  A^alidity  of  Consolidation,  393. 
a.  Legislative  Authority  and  Necessity  Therefor,  393. 

3.  Effect  on  Powers,  Privileges  and  Immunities,  393. 

B.  Succession,  393. 

4.  Transfer  of  Rights,   Privileges  and   Immunities,  393. 

a.  In  General,  393. 

XVII.  Insolvency,  Winding  Up,  Dissolution  and  Forfeiture,  394. 

B.  Dissolution,   Forfeiture  and   Ouster,  394. 

3.  Jurisdiction  and  Procedure  to  Ascertain  and  Declare,  394. 

a.  In  General,  394. 

b.  Necessity  for  Judgment  of  Ouster,  394. 

4.  Causes  of  Dissolution  and  Forfeiture,  394. 

b.  Misuser  or  Nonuser  of  Franchises,  394. 

C.  Efifects  and  Consequences,  395. 

5.  Distribution  of  Assets,  395. 

f.  Receivership,   395. 

CROSS   REFERENCES. 

See  the  title  Corporations,  vol.  4,  p.  621,  and  references  there  given. 

In  addition,  see  ante,  Appe:ai,  and  Error,  p.  34;  Bankruptcy,  p.  168;  Con- 
spiracy, p.  256;  Constitutional  Law,  p.  264;  post.  Due  Process  op  Law; 
Impairment  oe  Obligation  oe  Contracts;  Monopolies  and  Corporate: 
Trusts;    Perpetuities;    Police  Power;   Railroads;   Taxation. 

382 


Vol.  IV.  CORPORATIONS.  628-636 

As  to  collusion  in  incorporation  to  confer  or  divest  jurisdiction,  see  post, 
Courts.  As  to  joint  stock  companies,  see  post,  Joint  Stock  Companie^s.  As 
to  excise  tax  upon  the  carrying  on  of  business  in  a  corporate  capacity,  see  post, 
RkvEnue;  Laws.  As  to  reimbursement  for  property  destroyed  during  war  where 
corporation  by  domicile  an  enemy  of  United  States,  see  post.  War. 

II.  Definitions,   Distinctions  and  General  Considerations. 

A.  Definitions — 1.  Corporation. — A  corporation  is  an  artificial  being,  in- 
visible, intangible,  and  existing  only  in  contemplation  of  law.^^ 

C.  Corporation  as  Entity  Distinct  from  Shareholders. — A  corporation 
is,  in  law,  a  person  of  entity  entirely  distinct  from  its  stockholders  and  officers.^^* 
It  may  have  interest  distinct  from  theirs.  And  their  interests  may  be  adverse 
to  its. 25a 

Change  of  Members. — A  corporation  remains  unchanged  and  unaffected  in 
its  identity  by  changes  in  its  members. ^^t" 

D.  Governmental  Regulation  and  Control — 1.  In  General. — See  post, 
"Implied  Power,"  II,  D,  2,  a. 

b.  Regulation  Generally. — In  the  form  of  government  which  is  typically 
American,  the  creation  and  control  of  corporations  is  exclusively  a  legislative 
function. 2"a 

Unconstitutionality  as  to  Individuals. — The  difiference  between  the  ex- 
tent of  the  power  which  the  state  may  exert  over  the  doing  of  business  within 
its  borders  by  an  individual  and  that  which  it  can  exercise  as  to  corporations, 
furnishes  a  distinction  authorizing  a  classification  between  the  two.  A  want  of 
authorized  constitutional  power  to  include  individuals  within  the  prohibitions  of 
an  act  does  not,  therefore,  affect  the  validity  of  the  law  as  to  corporations. 2^* 

2.  By  State — a.  Implied  Pozver. — Equally  implied  is  the  condition  that 
the  corporation  shall  be  subject  to  such  reasonable  regulations,  in  respect  to  the 
general  conduct  of  its  affairs,  as  the  legislature  may,  from  time  to  time,  pre- 
scribe, which  do  not  materially  interfere  with  or  obstruct  the  substantial  en- 
joyment of  the  privileges  the  state  has  granted,  and  serve  only  to  secure  the 
ends  for  which  the  corporation  was  created.^^'* 

628-2a.    Definition. — ^Miller  v.  East   Side,  is  inherently  qualified   by  the  /duty  to   ex- 

etc.,    Irrig.    Co.,   211    U.    S.   293,    53    L.    Ed.  ecute    the    chartered    powers    conformably 

189.  29  S.  Ct.  111.  to    such    reasonable    police    regulations    as 

633-23a.    McCaskill  Co.  v.  United  States,  may  thereafter  be  adopted  in  the  interest 

216  U.  S.  504,  54  L.  Ed.  590,  30  S.  Ct.  386.  o^  the  public  welfare.   Hammond  Packing 

633-25a.    McCaskill  Co.  v.  United  States,  g°-  ^g  ^'' cTT^O  ^^^  ^'        ^'''  '" 

216  U.  S.  504    54  L    Ed^  590.  30  S.  Ct^386^  ^/,f^  ^^j^  condition  be  not  necessarily  im- 

p'p'tvTtE    COR^ORt^IONS  P'-^'    then    the    creation    of    corporations. 

PKIVAIE    LOKFOKAliU-^b.  ^^.-^^^    ^1^,^^^   ^^^   franchises   which   do   not 

633-25b.    Change  of  members. — Old  Do-  belong  to  individual  citizens,  may  become 

minion   Copper,  etc.,   Co.  v.  Lewisohn.  210  dangerous   to   the   public   welfare*  through 

U.  S.  206,  5.T  L.  Ed.  1025.  28  S.  Ct.  634.  the  ignorance,  or  misconduct,  or  fraud  of 

634-27a.     Legislative   duty. — Martinez   zi.  those  to  whose  management  their  affairs 

La  Asociacion,   etc.,   De   Ponce,   213  U.   S.  are   intrusted.     It  would  be  extraordinary 

20,  53  L.  Ed.  679.  29  S.  Ct.  327.  if  the  legislative  department  of  a  govern- 

634-29a.    UnconstitutionaHty    as    to    in-  ment,    charged    with    a    duty    of    enacting 

dividuals.— Hammond  Packing  Co.  t-.  Ar-  such  laws  as  may  promote  the  health,  the 
kansPs.  212  U.  S.  322.  53  L.  Ed.  530.  29  S.   •    morals,    the     prosperity     of     the      people, 

Q^    3rj-()  might  not,  when  unrestrained  by  constitu- 

n<in  oc       /"<  Ti.        nt   u        ir-     •    •  tional   limitations   upon   its  authority,  pro- 

'^^fj??\?r;iTvTS^V\^C^^^^^^  ^'de,  by  reasonable  regulations,  against 
208  U.  S.  3r8.  52  L.  Ed.  536.  28  S.  Ct.  394.        ^,^^   ^^-^^^^^   .^  ^^^^-^^   corporate  privileges 

The   chartered   right   to   do   a   particular  which  it  has  granted,  and  which  could  not, 

business   does   not   operate   to   deprive   the  except  by  itssanction,  express  or  implied, 

state    of    its    lawful    police    authority    and,  h^^^e   been  exercised   at   all.'     These   prin- 

therefore,  the  franchise  to  do  the  business  ciples   were   expressly   reaffirmed,   upon    a 

383 


637-638 


CORPORATIONS. 


Vol.  IV. 


b.  Reserved  Pozver. — Where  the  state  under  its  constitution  has  a  reserved 
power  to  repeal,  alter  and  amend  charters  by  it  granted,  even  if  the  impossible 
assumption  is  indulged  that  the  grant  of  the  power  to  do  business  implied,  in 
the  absence  of  such  reservation,  the  right  to  carry  on  the  business  in  violation  of 
a  lawfully  regulating  statute,  the  existence  of  the  reserved  power  leaves  no 
semblance  of  ground  for  the  proposition  that  the  corporation  is  not  subject  to 
such  regulations. ^'^'^ 

e.  Corporate  Books  and  Papers. — See  ante.  Constitutional  Law,  p.  264; 
post,  Due  Process  of  Law;  Impairment  of  Oibugatign  of  Contracts;  Po- 
lice Power. 

Corporate  Books. — In  view  of  the  visitorial  powers  of  a  state  over  corpora- 
tions doing  business  within  its  borders,  and  the  right  of  the  state  to  know 
whether  the  business  of  a  corporation  is  being  carried  on  in  a  lawfvil  manner, 
it  is  competent  for  the  state  to  compel  the  production  of  the  books  and  papers 
of  the  corporation  in  an  investigation  to  ascertain  whether  the  laws  of  the  state 
have  been  complied  with. 4-*^  And  such  power  embraces  the  authority  to  require 
the  giving  of  testimony  by  the  officers,  agents  and  other  employees  of  the  cor- 
poration for  like  and  analagous  purposes.^"*" 


review  of  the  adjudged  cases,  in  New  Or- 
leans Waterworks  Co.  7'.  Louisiana,  185 
U.  S.  336,  347,  46  L.  Ed.  936,  22  S.  Ct.  691." 
Cosmopolitan  Club  z'.  Virginia,  20S  U.  S. 
378.   .52   L.   Ed.   536,   28   S.    Ct.   394. 

637-40a.  Reserved  power. — Hammond 
Packing  Co.  v.  Arkansas,  212  U.  S.  322, 
53  L.  Ed.  530,  29  S.  Ct.  370. 

638-44a.  Hammond  Packing  Co.  z:  Ar- 
kansas, 212  U.  S.  322,  53  L.  Ed.  530,  29  S. 
Ct.  370;  Consolidated,  etc.,  Co.  ?'.  Ver- 
mont, 207  U.  S.  541,  52  L.  Ed.  327,  28  S. 
Ct.   178. 

"The  visitatorial  power  which  exists 
with  respect  to  the  corporation  of  neces- 
sity reaches  the  corporate  books,  without 
regard  to  the  conduct  of  the  custodian." 
Wilson  V.  United  States,  221  U.  S.  361, 
55   L.   Ed.  771,  31   S.   Ct.   538. 

"The  corporation  is  a  creation  of  the 
state.  It  is  presumed  to  be  incorporated 
for  the  benefit  of  the  public.  It  receives 
certain  special  privileges  and  franchises, 
and  holds  them  subject  to  the  laws  of  the 
state  and  the  limitations  of  its  charter. 
Its  powers  are  limited  by  law.  It  can 
make  no  contract  not  authorized  by  its 
charter.  Its  rights  to  act  as  a  corpora- 
tion are  only  preserved  to  it  so  long  as 
it  obeys  the  laws  of  its  creation.  There 
is  a  reserved  right  in  the  legislature  to 
investigate  its  contracts  and  find  out 
whether  it  has  exceeded  its  powers.  It 
would  be  a  strange  anomaly  to  hold  that 
a  state,  having  chartered  a  corporation  to 
make  use  of  certain  franchises,  could  not, 
in  the  exercise  of  its  sovereignty,  inquire 
how  these  franchises  had  been  employed, 
and  whether  they  had  been  abused,  and 
demand  the  production  of  the  corporate 
books  and  papers  for  that  purpose."  Wil- 
son z'.  United  States,  221  U.  S.  361,  55  L. 
Ed.  771.  31   S.   Ct.  538. 


Production  as  proof  in  pending  cause. — 

An  order  to  produce  books  and  papers  is 
not  wanting  in  due  process  because  it  was 
made  in  a  pending  suit  and  sought  to  elicit 
proof,  not  only  as  to  the  liability  of  the 
corporation  but  also  the  proof  in  its  pos- 
session relevant  to  its  defense  to  the 
claim  which  the  state  asserted.  As  the 
subjects  were  within  the  scope  of  the 
visitorial  power  of  the  state,  and  concern- 
ing which  it  had  the  right  to  be  fully  in- 
formed, the  mere  incident  or  purposes  for 
which  the  lawful  power  was  exerted  af- 
fords no  ground  to  deny  the  existence. 
Hammond  Packing  Co.  z'.  Arkansas,  212 
U.  S.  322,  53  L.  Ed.  530,  29  S.  Ct.  370. 

"In  Consolidated,  etc.,  Co.  ?'.  Vermont, 
207  U.  S.  541,  52  L.  Ed.  327,  28  S.  Ct.  178, 
the  books  and  papers  were  required  for 
an  investigation  before  the  grand  jury 
concerning  supposed  misconduct  of  the 
corporation.  The  power  to  compel  the 
production  to  ascertain  whether  wrong 
had  been  done,  in  the  nature  of  things, 
as  the  greater  includes  the  less,  is  de- 
cisive as  to  the  right  to  exact  the  pro- 
duction for  the  purpose  of  proof  in  a 
pending  cause.  See  Hale  z'.  Henkel,  201 
U.  S.  43,  50  L.  Ed.  652,  26  S.  Ct.  370.  If. 
as  was  in  that  case  decided,  the  power  of 
visitation  could  be  exercised,  even  al- 
though it  might  lead  to  the  production  of 
incriminating  evidence,  merely  because 
the  order  to  produce  in  this  case  called  for 
evidence  in  the  possession  of  the  corpora- 
tion relevant  to  its  defense  did  not  afifect 
the  validity  of  the  order."  Hammond 
Packing  Co.  z'.  Arkansas,  212  U.  S.  322, 
53   L.    Ed.   530.   29    S.    Ct.   370. 

638-44b.  Hammond  Packing  Co.  v.  Ar- 
kansas, 212  U.  S.  322,  53  L.  Ed.  530,  29  S. 
Ct.  370;  Consolidated,  etc.,  Co.  v.  Ver- 
mont, 207  U.  S.  541,  52  L.  Ed.  327,  28  S. 
Ct.    178. 


384 


\'ol.  IV 


CORPORATIOXS. 


638-648 


Foreign  Corporations. — This  is  the  case  where  the  books  and  papers  were 
those  of  a  foreign  corporation  doing  business  in  the  state,  and  which  had  been 
kept,  therein,  but  had  been  taken  therefrom.  The  fact  that  the  books  of  the  cor- 
poration which  were  called  for  may  not  have  been  at  any  time  kept  w^ithin  the 
state,  does  not  change  the  rule."*""' 

Practice. — Where  the  documents  of  a  corporation  are  sought,  the  practice 
has  been  to  subpoena  the  officer  who  has  them  in  his  custody.  But  there  would 
seem  to  be  no  reason  why  the  subpoena  duces  tecum  should  not  be  directed  to 
the  corporation  itself.  Corporate  existence  implies  amenability  to  legal  process. 
The  corporation  may  be  sued ;  it  may  be  compelled  by  mandamus,  and  restrained 
by  injunction,  directed  to  it.  Possessing  the  privileges  of  a  legal  entity,  and 
having  records,  books  and  papers,  it  is  under  a  duty  to  produce  them  when  they 
may  properly  be  required   in  the  administration  of  justice.^'*'^ 

F.  Corporation  as  Person  or  Citizen — 1.  As  Person  or  Ixh.\bitaxt— 
a.  As  Person. — "That  a  corporation  is  a  person,  wnthin  the  meaning  of  the 
fourteenth  amendment,  is  no  longer  open  to  discussion. "^'*^ 

2.    As  Citizen. — See  post,   "Dual   Incorporation,"   II,   H,    1. 

The  cession  of  Porto  Rico  by  Spain  to  the  United  States  severed  all 
relations  between  Spain  and  a  corporation,  formed  for  charitable  purposes 
and  limited  in  its  operations  to  the  ceded  territory,  and  thereafter  it  can  not  be 
regarded  in  any  sense  as  a  citizen  or  subject  of  Spain.  Spain  had  no  duty  to  or 
power  over  it."*'^ 


638-44C.  Foreign  corporations. — Ham- 
mond Packing  Co.  f.  Arkansas.  212  U.  S. 
322,  53  L.  Ed.  530,  29  S.  Ct.  370;  Consoli- 
dated, etc.,  Co.  V.  Vermont,  207  U.  S.  541. 
52    L.    Ed.    327,    28    S.    Ct.    178. 

"There  can  surely  be  no  illegality  in 
providing  that  a  corporation  doing  busi- 
ness in  the  state,  and  protected  by  its 
power,  may  be  compelled  to  produce,  be- 
fore a  tribunal  of  the  state,  material  evi- 
dence in  the  shape  of  books  or  papers 
kept  by  it  in  the  state,  and  which  are  in 
its  custody  and  control,  although,  for  the 
moment,  outside  the  borders  of  the  state. 
The  statute  is  in  no  sense  a  provision  as 
to  how  the  company  shall  perform  its 
duties  and  obligations  in  other  states.  It 
directs  the  company  doing  business  in  the 
state  and  presents  therein,  by  its  officers 
o/  soine  of  them,  to  do  something  which 
it  is  entirely  competent  to  do,  the  purpose 
of  which  it  is  to  enable  the  tribunal  mak- 
ing the  investigation  under  a  state  statute 
to  perform  its  duty."  Consolidated,  etc.. 
Co..  V.  Vermont,  207  U.  S.  541,  52  L.  Ed. 
327.  28   S.   Ct.   178. 

638-44d.  Practice. — Wilson  v.  United 
States.  221  U.  S.  361,  55  L.  Ed.  771,  31  S. 
Ct.    538. 

645-64a.  Under  fourteenth  amendment. 
—Southern  R.  Co.  v.  Greene,  216  U.  S. 
400,  54  L.  Ed.  536,  30  S.  Ct.  287.  See, 
also,  Louisville,  etc.,  R.  Co.  v.  Gaston,  216 
U.  S.  418.  54  L.  Ed.  542,  30  S.  Ct.  291.  See 
ante,  CONSTITUTIONAL  LAW.  p.  264. 

"This  point  was  decided  in  Pembina 
Consol..  etc.,  Mill.  Co.  v.  Pennsylvania, 
125  U.  S.  181,  31  L.  Ed.  650,  8  S.  Ct.  737, 
wherein  this  court  declared:  'The  inhibi- 
tion of  the  amendment  that  no  state  shall 

12    U    S    Enc— 25  385 


deprive  any  person  within  its  jurisdiction 
of  the  equal  protection  of  the  laws  was 
designed  to  prevent  any  person  or  class 
of  persons  froin  being  singled  out  as  a 
special  subject  for  discriminating  and 
hostile  legislation.  Under  the  designa- 
tion of  person  there  is  no  doubt  that  a 
private  corporation  is  included."  And  see 
Gulf,  etc.,  R.  Co.  V.  Ellis,  165  U.  S.  150, 
41  L.  Ed.  666,  17  S.  Ct.  255,  and  cases 
cited  on  p.  154."'  Southern  R.  Co.  v. 
Greene,  216  U.  S.  400,  54  L.  Ed.  536,  30 
S.  Ct.  287.  See,  also.  Louisville,  etc..  R. 
Co.  V.  Gaston,  216  U.  S.  418,  54  L.  Ed. 
542,   30   S_.    Ct.   291. 

A  foreign  railway  corporation  which 
has  come  into  the  state  in  compliance 
with  its  laws,  and  has  therein  acquired 
property  of  a  fixed  and  permanent  nature, 
upon  which  it  has  paid  all  taxes  levied  by 
the  state,  is  a  person  within  the  jurisdic- 
.  tion  of  the  state,  and,  as  such,  is  protected 
by  the  equal  protection  of  the  laws  clause 
of  U.  S.  Const.,  fourteenth  amendment, 
against  the  imposition,  under  1  Ala.  Code 
1907,  §§  2391-2400.  of  an  additional  fran- 
chise tax  for  the  privilege  of  doing  busi- 
ness within  the  state,  where  no  such  tax 
is  imposed  upon  domestic  corporations 
carrving  on  a  precisely  similar  business. 
Southern  R.  Co.  v.  Greene,  216  U.  8.  400, 
54  L.  Ed.  536,  30  S.  Ct.  287.  See,  also, 
Louisville,  etc..  R.  Co.  v.  Gaston,  216  U. 
S.   418.   54   L.    Ed.   542,  30   S.   Ct.   291. 

648-76a.  Martinez  v.  La  Asociacion,  etc., 
De  Ponce,  213  U.  S.  20,  53  L.  Ed.  679.  29 
S.   Ct.   327.     See  post,  COURTS. 

"A  different  question  (which  need  not 
be  decided)  would  be  presented  if  the  cor- 
poration   had    other    characteristics    than 


648-658 


CORPORATIONS. 


Vol.  IV, 


3.  As  Life  in  Being  within  Rule;  against  Perpetuities. — A  corporation 
will  not  be  deemed  a  life  in  being  where  to  so  regard  it  would  cause  a  trust 
otherwise  valid  to  violate  the  rule  against  perpetuities.'*"' 

H.  Dual  Incorporation  and  Existence  Out  of  State  Granting  Charter 
— 1.  Dual  Incorporation — a.  Incorporation  in  More  than  One  State — (1) 
Statement  of  Principle. — Where  a  corporation  must  be  taken  to  have  been  sub- 
stantially, simultaneously  and  freely  incorporated  in  two  or  more  states,  it  e.x- 
ists  in  each  state  by  virtue  of  the  laws  of  that  state,  and  when  it  is  alleged  to 
have  incurred  a  liability  under  the  laws  of  one  of  such  states  and  is  sued  in  that 
state,  it  can  not  escape  the  jurisdiction  by  the  fact  that  it  is  incorporated  else- 
where. The  assent  of  the  state  to  such  incorporation  elsewhere,  supposing  it  to 
have  been  given,  can  not  be  presumed  to  have  intended  or  to  import  such  a 
change.^*^^ 

III.  Promoters  and  Acts  Prior  to  Incorporation. 

B.  Promoter's  Profits — 1.  In  General. — See  note  6. 

2.  Contracts  before  Increase  of  Stock. — A  corporation  can  not  avoid  in 
equity  a  purchase  of  property  sold  to  it  by  its  promoters,  at  a  large  profit,  while 
they  owned  all  the  stock,  in  contemplation  of  a  large  issue  to  the  public,  since 
the  corporation  thus  had  full  knowledge  of  the  facts,  and  remained  unchanged 
and  unaffected  in  its  identity  by  the  changes  in  its  members  due  to  purchases  of 
the  stock  by  the  innocent  public,  and  for  the  further  reason  that,  if  the  corpora- 
tion succeeds,  all  the  stockholders,  guilty  as  well  as  innocent,  will  profit.'^'^ 


those  possessed  bj-  the  one  under  consid- 
eration; as,  for  instance,  if  it  were  a  Span- 
ish trading  corporation,  with  a  place  of 
business  in  Spain,  but  doing  business  by 
comity  in  the  island  of  Porto  Rico."  Mar- 
tinez V.  La  Asociacion,  etc.,  De  Ponce, 
213  U.  S.  20,  53  L.  Ed.  679,  29  S.  Ct.  327. 

648-76b.  As  life  in  being. — Fitchie  v. 
Brown,  211  U.  S.  321,  53  L.  Ed.  202,  29  S. 
Ct.  106. 

652-90a.  Patch  v.  Wabash  R.  Co.,  207 
U.  S.  277,  52  L.  Ed.  204,  28  S.  Ct.  80.  See 
post.  COURTS. 

A  corporation  organized  and  existing 
under  and  by  virtue  of  the  laws  of  sev- 
eral states,  including  the  one  in  which 
suit  against  it  is  brought,  must  be  re- 
garded as  a  citizen  of  the  latter  state  for 
the  purpose  of  determining  its  right  to 
remove  the  cause  to  a  federal  circuit 
court,  especially  where  the  constitution 
and  laws  of  that  state  require  that  a  m.a- 
jority  of  the  directors  shall  be  residents, 
and  that  the  corporation  shall  keep  a  gen- 
eral office  in  the  state.  Patch  v.  Wabash 
R.  Co.,  207  U.  S.  277,  52  L.  Ed.  204,  28 
S.  Ct.  80.  See  post,  REMOVAL  OF 
CAUSES. 

658-6.  Good  faith  and  full  disclosure.— 
In  Old  Dominion  Copper,  etc..  Co.  v. 
Lewisohn,  210  U.  S.  206,  52  L.  Ed.  1025, 
28  S.  Ct.  634,  it  is  said:  "The  general  ob- 
servations in  Dickerman  v.  Northern  Trust 
Co.,  176  U.  S.  181,  44  L.  Ed.  423,  20  S. 
Ct.  311,  were  obiter." 

658-7a.  Contracts  before  increase  of 
stock. — Old  Dominion  Copper,  etc.,  Co.  v. 
Lewisohn,  210  U.  S.  206,  52  L.  Ed.  1025, 
28  S.  Ct.  634. 


"The  difficultj'  that  meets  the  petitioner 
at  the  outse^t  is  that  it  has  assented  to  llie 
transaction  with  the  full  knowledge  of  the 
facts.  It  is  said,  to  be  sure,  that  on  Sep- 
tember 18,  when  the  shares  were  issued 
to  the  sellers,  there  were  already  sul)- 
scribers  to  the  20,000  shares  that  the  pub- 
lic took.  But  this  does  not  appear  froMi 
the  bill,  unless  it  should  be  inferred  from 
the  ambiguous  statem^ent  that  on  that  day 
it  was  voted  to  issue  those  shares  'to  per- 
sons who  had  subscribed  therefor,'  upon 
receiving  payment,  and  that  the  shares 
'were  thereafter  duly  issued  to  said  per- 
sons,' etc.  The  words  'had  subscrilied' 
may  refer  to  the  time  of  issue  and  l)e 
equivalent  to  'should  have  subscribed,'^ 
or  may  refer  to  an  already  past  event." 
Old  Dominion  Copper,  etc.,  Co.  v.  Lewi- 
sohn. 210  U.  S.  206,  52  L.  Ed.  1025,  28  S. 
Ct.  634. 

At  the  time  of  the  sale  to  the  plaintiff, 
then,  there  was  no  wrong  done  to  anyone. 
The  personalities  were  on  both  sides  of 
the  bargain,  and  they  might  issue  to  them- 
selves as  much  stock  in  their  corporation 
as  they  liked  in  exchange  for  their  con- 
veyance of  their  land.  "If  there  was  a 
wrong,  it  was  when  the  innocent  public 
subscribed.  But  what  one  would  expect 
to  find,  if  a  wrong  happened  then,  would 
not  be  that  the  sale  became  a  breach  of 
duty  to  the  corporation  nunc  pro  tunc, 
but  that  the  invitation  to  the  public  with- 
out disclosure,  when  acted  upon,  became 
a  fraud  upon  the  subscribers  from  an 
equitable  point  of  view,  accompanied  by 
what  they  might  treat  as  damage.  For 
it   is   only  by  virtue   of  the  innocent   sub- 


386 


Vol.  IV.  CORPORATIOXS.  663-673 

IV.  Creation  and  Organization. 

A.  Power  to  Create — 1.  Ix  General — b.  Xecessity  for  Legislative  Au- 
thority.— See  ante,  "Regulation  Generally,"  II.  D,   1,  b. 

c.  Power  of  State — (2)  Imposition  of  Conditions. — A  statute  in  creating  the 
corporation  may  insert  in  the  charter  terms  which  bind  the  corporation,  whether 
such  requirements  can  be  made  constitutionally  of  an  already  existing  corpora- 
tion or  not.  The  corporation  would  come  into  being,  and  having  consented  to 
come  into  being  subject  to  the  liability,  could  not  be  heard  to  complain. ^^^ 

Limiting-  Uses  of  Property. — No  matter  what  may  be  the  general  rights  of 
corporate  property,  a  state  granting  a  charter  may  strictly  define  the  limit  and 
uses  of  property  necessary  to  the  exercise  of  the  powers  granted. ^^^ 

C.  Beginning,  Duration  and  Termination  of  Corporate  Existence — 
2.    Duration  and  Termination  of  Corporate  Existence. — See  note  58. 

V.  Defective  and  Irregular  Incorporation. 

A.  De  Facto  Corporations. — Legislative  Recognition. — Where  the  legis- 
lature, by  statute,  recognizes  and  acquiesces  in  the  existence  of  a  corporation 
which  was  formed  by  the  corporators  without  the  proper  authority,  it  thereby 
invests  the  association  with  the  right  of  continuing  to  act  in  a  corporate  capacity 
for  the  purposes  and  in  the  manner  that  it  publicly  assumed  to  act.  And  if 
rights  or  franchises  are  conferred  upon  an  association  claiming  to  be  incorpo- 
rated, it  thereby  becomes  authorized  to  exercise  the  powers  expressly  conferred, 
and  such  others  as  the  legislature  appears  to  have  imputed  to  it.^^^a 

Vin.  Charters,  and  Their  Amendment,  Repeal  and  Extension. 

A-|.  Incorporation  of  Statutes  or  Documents  by  Reference. — The  con- 
tents of  a  statute  or  a  document  may  be  incorporated  in  or  adopted  by  a  charter 
as  well  by  generic  as  by  specific  reference,  if  only  the  purport  of  the  adopt- 
ing statute  is  clear.  If  a  charter  instead  of  writing  out  the  requirements  of  a 
statute  referred  specifically  to  another  document  expressing  them,  and  pur- 
ported to  incorporate  it,  of  course  the  charter  would  have  the  same  efifect  as  if 
it,  itself,  contained  the  words.  If  the  document  was  identified  it  would  not 
matter  what  its  own  nature  or  effect  might  be,  as  the  force  given  to  it  by  refer- 
ence and  incorporation  would  be  derived  wholly  from  the  charter.     The  docu- 

scribers'  position  and  the  promoter's  in-  Ct.  593;  Perrine  z'.  Chesapeake,  etc.,  Canal 
vitation  that  the  corporation  has  any  pre-  Co.,  9  How.  172,  184,  13  L.  Ed.  92;  Horn, 
tense  for  a  standing  in  court.  If  the  etc.,  Min.  Co.  z-.  New  York,  143  U.  S. 
promoters,  after  starting  their  scheme,  305,  312.  36  L.  Ed.  164,  12  S.  Ct.  403." 
had  sold  their  stock  before  any  subscrip-  Berea  College  f.  Kentucky,  211  U.  S.  45, 
tions  were  taken,  and  then  the  purchasers  53  L.  Ed.  81.  29  S.  Ct.  33. 
of  their  stock,  with  notice,  had  invited  the  "A  statute  may  conflict  with  the  fed- 
public  to  come  in,  and  it  did,  we  do  not  eral  constitution  in  denj'ing  to  individuals 
see  how  the  company  could  maintain  this  powers  which  they  may  rightfully  exer- 
suit.  If  it  could  not  then,  we  do  not  see  cise,  and  yet,  at  the  same  time,  be  valid  as 
how  it  can  now."  Old  Dominion  Copper,  to  a  corporation  created  by  the  state," 
etc..  Co.  z:  Lewisohn.  210  U.  S.  206,  52  L.  Berea  College  v.  Kentucky.  211  U.  S.  45, 
Ed.   1025.  2S    S.    Ct.   634.  53  L.  Ed.  81,  29  S.   Ct.  33. 

663-26a.     Conditional    grant. — Interstate,  663-29a.    Limiting    use    of     property. — 

etc.,  St.  R.  Co.  V.  Massachusetts,  207  U.  S.  Fifth   Ave.   Coach    Co.   z:   Xew   York,   221 

79,  52  L.  Ed.  Ill,  28  S.  Ct.  26.  U.   S.  467,  55  L.   Ed.  815,  3]    S._  Ct.  709. 

The  granting,  the  right  or  privilege  to  672-58.  Telephone  franchise. — Louis- 
be  a  corporation,  "  'rests  entirely  in  the  ville  z\  Cumberland,  etc.,  Tel.  Co..  224  U. 
discretion  of  the  state,  and,  of  course,  S.  649.  56  L.  Ed.  934.  32  S.  Ct.  572.  See 
when  granted,  may  be  accompanied  with  post.  TELEGRAPHS  AND  TELE- 
such    conditions    as    its     legislature      may  PHONES. 

judge   most   befitting  to   its   interests   and  673-62a.      Minneapolis     v.     Minneapolis 

policy.'      Home    Ins.    Co.    v.    New    York,  Street  Ry.  Co.,  215  U.  S.  417,  54  L.  Ed.  259, 

134   U.    S.   594.    600,   33    L-    Ed.   1025,    10    S.  30  S.  Ct.  118.  123. 

387 


676-699 


CORPORATIONS. 


Vol.  IV 


nient,  therefore,  might  as  well  be  an  unconstitutional  as  a  constitutional  law.'"^ 

C.  Charter  as  Contract,  and  Amendment  or  Repeal  Thereof — 1.  Char- 
ter AS  Contract  Inviglahle  by  Legislation — a.  ///  General — (1)  Statement 
of  Ride. — See  note  82. 

(7)    Charter  Exemption  from  Taxation  as  a  Contract. — See  post,  Taxation. 

d.  IVhat  Constitutes  Impairment  of  the  Contract — (2)  Alteration,  Restric- 
tion or  Regulation. ^See  ante,  "Implied  Power,"  II.  D.  2,  a. 

Prohibiting  Advertisements  on  Public  Vehicles  in  City  Streets. — Con- 
tract obligations  are  not  unconstitutionally  impaired  by  a  municipal  ordinance 
under  which  a  domestic  corporation  operating  stage  routes  in  the  city  streets  is 
forbidden  to  display  exterior  advertisements  on  its  stages,  where,  at  the  time 
the  advertising  contracts  were  entered  into,  there  existed  an  ordinance  almost 
identical  in  terms,  and  the  company's  charter  does  not  confer  any  right  to  use 
its  stages  for  advertising  purposes. ^-^^ 

4.  Where  Power  Is  Reserved  to  Amend  or  Repeal — a.  In  General — (4-) 
Mode  of  Reservation. — It  is  immaterial  whether  the  power  to  alter  the  charter 
is  reserved  in  the  original  act  of  incorporation,  or  in  the  articles  of  association 
under  a  general  law,  or  in  a  constitution  in  force  when  the  incorporation  under 
a  general  law  is  made.^-"'^ 

b.  Scope  and  Construction  of  Clause  Reserving  Right. — The  only  question  is 
whether  there  is  anything  in  the  terms  or  effect  of  the  repeal  that  goes  beyond 
the  power  that  the  charter  expressly  reserves. ^■'^'' 

The  knowledge,  negligence,  methods,  or  motives  of  the  legislature 
will  not  be  inciuired  into  by  the  courts  in  determining  the  validity  of  a  statute 
repealing  a  corporate  charter,  if  the  statute  is  passed  in  due  form.'^^'* 

The  bonded  indebtedness  of  a  corporation  is  subject,  not  paramount,  to 
the  reservation  in  the  corporate  charter  of  the  power  to  repeal  even  though 
there  exists  an  unexpired  franchise  granted  by  a  municipality  to  the  corpora- 
tion to  use  its  streets. ^^'' 


676-77a.  Incorporation  of  statute  or 
document  by  reference. — Interstate,  etc., 
St.  R.  Co.  V.  Massachusetts,  207  U.  S.  79. 
52   L.    Ed.   Ill,   28    S.    Ct.   26. 

.\  street  railway  company  who'-e  char- 
ter subjects  it  to  "all  the  duties,  liabili- 
ties, and  restrictions  set  forth  in  all  gen- 
eral laws  now  or  hereafter  in  force,  re- 
lating to  street  railway  companies,"  is 
bound  by  the  requirement  of  a  statute 
previously  enacted,  that  street  railway 
companies  shall  transport  school  children 
at  a  reduced  rate,  although  such  statute 
may  be  unconstitutional  as  to  already  ex- 
isting corporations.  Interstate,  etc.,  St. 
R.  Co.  V.  Massachusetts,  207  U.  S.  79,  52 
L.  Ed.  Ill,  28  S.  Ct.  26. 

678-82.  Where  the  grant  to  a  corpora- 
tion of  a  franchise  to  construct  and  oper- 
ate its  road  is  not,  by  its  terms,  limited 
and  revocable,  the  grant  is  in  fee.  Louis- 
ville V.  Cumberland,  etc.,  Tel.  Co.,  224  U. 
S.  649.  56  L.  Ed.  934,  32  S.  Ct.  572. 

688-15a.  Fifth  Ave.  Coach  Co.  v.  New 
York.  221  U.  S.  467,  55  L.  Ed.  815,  31  S. 
Ct.  709. 

699-53a.  Mode  of  reservation. — Polk  v. 
Mutual,  etc.,  Life  Ass'n,  207  U.  S.  310, 
52   L.   Ed.   222,  28   S.   Ct.  65. 

699-55a.     Calder   v.     Attorney      General, 


218  U.  S.  591,  54  L.  Ed.  1163.  31  S.  Ct. 
122. 

699-55b.    Mode  and  policy  of  legislature. 

—Calder  v.  Attorney  General,  218  U.  S. 
591,  54  L.  Ed.  1163,  31  S.  Ct.  122. 

699-55C.  Bonded  indebtedness. — Calder 
T.  .\ttorney  General,  218  U.  S.  591,  54  L. 
Ed.  1163,  31   S.  Ct.  122. 

The  existence  of  an  unexpired  franchise 
granted  by  a  municipality  to  a  waterworks 
company,  which  is  included  in  the  com- 
pany's bonded  debt,  did  not  prevent  the 
exercise,  by  Mich.  Local  Acts  1905,  act 
No.  492,  of  the  state's  reserved  right  to 
repeal  the  company's  charter,  under  which 
the  corporate  directors  may  be  ousted 
from  acting  as  a  body  corporate,  under 
the  corporate  name.  Calder  v.  Attorney 
General,  218  U.  S.  591,  54  L.  Ed.  1163.  31 
S.  Ct.  122. 

With  reference  to  the  bondholders,  it 
is  enough  to  say  that  they  are  not  before 
the  court.  "The  defendants  directors  do 
not  represent  them;  the  defendants  repre- 
sent the  debtors,  not  the  creditors.  By 
making  a  contract  or  incurring  a  debt,  the 
defendants,  so  far  as  they  are  concerned, 
could  not  get  rid  of  an  infirmity  in- 
herent in  the  corporation.  They  con- 
tracted subject,  not  paramount,  to    the  pro- 


388 


Vol.  I\'. 


CORPORATIOXS. 


701-704 


"No  Injustice  Done  to  Incorporators"  Construed. — Where  the  constitu- 
tion of  a  state  provided  that  the  "authority  to  repeal,  alter  and  amend  should  be 
exercised  in  such  manner,  that  no  injustice  should  be  done  to  incorporators,"  the 
determination,  whether  the  power  to  repeal,  alter  or  amend,  was  exerted  in  such 
a  manner  as  to  be  unjust  to  incorporators,  was  within  the  province  of  the  state 
court  to  finally  decide,  unless  that  power  was  exerted  in  such  an  arbitrary  man- 
ner as  irrespective  of  the  contract  clause,  to  deprive  of  some  other  fundamental 
right,  which  was  within  the  protection  of  the  constitution  of  the  United  States. ^^* 

e.  Extent  of  Right  to  Amend  and  What  Constitutes  Impairment — (  1  )  hi 
General. — It  is  undoubtedly  true  that  the  reserved  power  to  alter  or  amend  is 
subject  to  some  limitations,  and  that,  under  the  guise  of  an  amendment,  a  new 
contract  may  not  always  be  enforceable  upon  the  corporation  or  the  stock- 
holders ;  but  it  is  settled  that  a  power  reserved  to  the  legislature  to  alter,  amend, 
or  repeal  a  charter  authorizes  it  to  make  any  alteration  or  amendment  of  a 
charter  granted  subject  to  it,  which  will  not  defeat  or  substantially  impair  the 
object  of  the  grant,  or  any  rights  vested  under  it,  and  which  the  legislature  may 
deem  necessary  to  carry  into  effect  the  purpose  of  the  grant,  or  to  protect  the 
rights  of  the  public  or  of  the  corporation,  its  stockholders  or  creditors,  or  to 
promote  the  due  administration   of  its  affairs.' ^'^ 


viso  for  repeal,  as  is  shown  by  a  long 
line  of  cases.  Greenwood  f.  Freight  Co., 
105  U.  S.  13,  26  L.  Ed.  951;  Bridge  Co.  v. 
United  States.  105  U.  S.  470.  26  L.  Ed. 
1143;  Chicago  Life  Ins.  Co.  z:  Needles.  113 
U.  .S.  574,  28  L.  Ed.  1084.  5  S.  Ct.  681; 
Monongahela  Xav.  Co.  v.  United  States, 
148  U.  S.  313,  340.  37  L.  Ed.  463,  13  S. 
Ct.  622;  Xew  Orleans  Waterworks  Co.  v. 
Louisiana.  185  U.  S.  336,  354.  46  L.  Ed. 
936.  22  S.  Ct.  691;  Knoxville  Water  Co. 
V.  Knoxville,  189  U.  S.  434,  438.  47  L.  Ed. 
887.  23  S.  Ct.  531;  ^L^nigault  v.  Springs, 
199  U.  S.  473,  480,  50  L.  Ed.  274,  26  S.  Ct. 
127."  Calder  v.  Attorney"  General.  218 
U.   S.  591,  54  L.   Ed.   1163.  31   S.  Ct.  122. 

''The  legislature  did  not  content  itself 
with  a  bare  repeal,  and  leave  the  conse- 
quences to  the  law.  Act  Xo.  492  of  the 
Local  Acts  of  1905,  after  repealing  the 
charter,  provides  that  the  company,  at  any 
time  before  January,  1906,  may  present 
a  claim  to  the  city  of  Grand  Rapids  for 
the  value  of  its  real  and  tangible  estate, 
'not  including  franchise."  and  transfer  the 
property  to  the  city.  If  the  parties  do 
not  agree,  an  action  of  assumpsit  may  be 
brought,  with  the  usual  incidents,  and  the 
amount  of  the  final  judgment  is  made  a 
claim  against  the  city,  to  be  paid  like 
other  claims.  If  the  company  does  not 
elect  this  course,  it  may  remove  the  prop- 
erty, first  giving  bond,  to  be  approved  by 
the  common  coimcil.  to  protect  the  city 
for  any  damages  caused  thereby,  and  is 
to  leave  the  streets  in  as  good  condition 
as  before.  It  is  argued  that  these  pro- 
visions are  void,  and  the  argument  may 
perhaps  be  abridged  as  follows:  Corpo- 
rations with  existence  limited  in  time  may 
take  a  fee  simple  or  a  franchise  of  longer 
duration  than  themselves.  Minneapolis  v. 
Minneapolis  St.  R.  Co..  215  U.  S.  417.  430. 
54   L.    Ed.   259,    30    S.    Ct.    118;    Detroit   z: 


Detroit,  etc.,  St.  R.  Co.,  184  U.  S.  368,  395, 
46  L.  Ed.  592,  22  S.  Ct.  410.  There  is  a 
distinction  between  the  franchise  to  be  a 
corporation  and  that  to  operate  its  plant. 
Vicksburg  f.  Vicksburg  Waterworks  Co.^ 
202  U.  S.  453.  464.  50  L.  Ed.  1102.  26  S- 
Ct.  660.  As  the  corporation  had  been  au- 
thorized to  lay  its  pipes,  and  lawfully  had 
mortgaged  not  only  its  pipes,  but  its  fran- 
chise to  own  and  operate  them,  it  must 
be  taken  to  have  given  a  security  not 
limited  or  terminable  by  anj-thing  short 
of  paj'ment.  The  attempt  to  extinguish 
the  corporation,  if  successful,  would  ren- 
der the  security  and  continuing  franchise 
unavailable,  and  is  void.  It  is  argued 
further  that  the  exclusion  of  'franchise,' 
(assumed  to  embrace  the  supposed  fran- 
chise to  operate  the  works)"  from  the 
valuation  is  unconstittitional.  We  ex- 
press no  opinion  as  to  w^hether  the  prem- 
ises of  the  foregoing  argument  are  justified 
by  anything  appearing  in  the  present 
record.  In  any  event,  the  conclusion  can 
not  be  maintained.""  Calder  t'.  Attorney 
General,  218  U.  S.  591.  54  L.  Ed.  1163,  31 
S.  Ct.  122. 

If  the  city  gave  the  privilege  of  using 
the  streets  to  the  corporation  forever,  it 
could  not  enlarge  the  right  of  the  corpo- 
ration to  continue  in  existence  as  against 
the  soverei.gn  power  as  sufficiently  appears 
from  the  cases  already  cited.  Calder  f. 
Attorney  General,  218  U.  S.  591,  54  L.  Ed. 
1163.  31  S.  Ct.  122.  See,  also.  .Arkansas. 
etc.,  R.  Co.  V.  Louisiana,  etc..  R.  Co..  218 
U.   S.  431.  54  L.   Ed.   1097,  31    S.  Ct.  56. 

701-64a.  Hammond  Packing  Co.  v.  Ar- 
kansas. 212  U.  S.  322.  53  L.  Ed.  530.  29 
S.    Ct.    370. 

704-76a.  Limitation  on  power  of  amend- 
ment.— Berea  College  <'.  Kentuckv,  211  U. 
S.  45.  53  L.  Ed.  81.  29  S.  Ct.  33,  following 
Holyoke  Co.  z:  Lyman,  15  Wall.  500,  522, 


389 


705-711 


CORPORATIONS. 


Vol.  IV. 


Regulations  Unassailable  as  Infraction  of  Fourteenth  Amendment. — 

See  note  78. 

(4)  Examples  of  Valid  Regulations. — Examples  of  regulations  that  have 
been  held  valid  are:  Changing  the  plan  of  the  business  done  by  an  associa- 
tion insuring  lives  upon  the  co-operative  plan  to  a  mutual  level  premium  plan  i^^^ 
imposing  a  penalty  on  corporations  doing  business  in  the  state  while  members  of 
a  trust  or  combination  to  control  prices/'*""'  and  a  prohibition  against  teaching 
white  and  negro  pupils  in  the  same  institution.^"'^ 

(7)  Municipal  Action  as  Impairment. — Franchises  granted  by  a  state  legislature 
can  not,  of  course,  be  repealed,  nullified  or  forfeited  by  an  ordinance  of  a  gen- 
eral council  of  a  municipality.-*^ 


21  L.  Ed.  133,  and  Close  v.  Glenwood 
Cemetary,  107  U.  S.  466,  476,  27  L.  Ed. 
408,  2  S.  Ct.  267;  Polk  v.  Mutual,  etc., 
Life  Ass'n,  207  U.  S.  310,  52  L.  Ed.  222, 
28  S.  Ct.  65,  following  Looker  v.  Maynard, 
179  U.  S.  46,  45  L.  Ed.  79,  21  S.  Ct.  21. 

A  charter  right  held  subject  to  the 
power  of  the  state  to  repeal,  alter,  or 
amend  is  not  protected  by  the  contract 
clause  of  the  federal  constitution  against 
subsequent  impairment.  Ju'dgment,  State 
z'.  Missouri  Pac.  Ry.  Co.  (1907),  92  P.  606, 
76  Kan.  467,  affirmed.  Missouri  Pac.  R. 
Co.  V.  Railroad  Comm'rs,  216  U.  S.  262,  54 
L.  Ed.  472,  30  S.  Ct.  330. 

705-78.  Berea  College  v.  Kentucky,  211 
U.  S.  45,  53  L.  Ed.  81,  29  S.  Ct.  33;  Fifth 
Ave.  Coach  Co.  v.  New  York,  221  U.  S. 
467,  55  L.  Ed.  815,  31  vS.  Ct.  709. 

708-90a.  The  power  to  amend  or  repeal, 
reserved  by  the  state  constitution  in  force 
when  an  association  insuring  lives  upon 
the  co-operative  plan  was  incorporated  un- 
der general  law,  will  sustain,  as  against  an 
objection  founded  on  the  contract  clause 
of  the  federal  constitution,  so  much  of  N. 
Y.  Laws  1901,  chap.  722.  as  authorized  the 
reorganization  of  such  association  under 
a  new  name  as  a  mutual  level  premium 
company  without  the  consent  of  the 
members,  although  the  association  may 
have  been  insolvent  and  the  scheme  of  re- 
incorporation may  have  been  devised,  and 
legislation  authorizing  it  procured,  by  its 
officers  with  the  intent  to  defraud  the 
members.  Polk  v.  Mutual,  etc.,  Life 
Ass'n,  207  U.  S.  310,  52  L.  Ed.  222,  28  S. 
Ct.  65. 

Contract  obligations  between  an  asso- 
ciation insuring  lives  upon  the  co-opera- 
tive plan  and  its  members  are  not  uncon- 
stitutionally impaired  by  the  reorganiza- 
tion of  such  association  as  a  mutual  level 
premium  company,  pursuant  to  N.  Y. 
Laws  1901,  chap.  722,  under  a  new  name 
and  without  the  consent  of  the  members, 
because  such  statute  provides  that  out- 
standing assessment  contracts  shall  be 
appraised  as  liabilities  as  if  they  were  one- 
year  term  insurance  at  the  ages  attained. 
Polk  V.  Mutual,  etc.,  Life  Ass'n,  207  U.  S. 
310.  52  L.  Ed.  222,  28  S.  Ct.  65. 

708-90b.  Penalizing  corporations  which 
are  members  of  trust. — No  contract  rights 


of  domestic  corporations  are  impaired  by 
the  provisions  of  Ark.  Act  January  23, 
1905,  §  1,  imposing  a  penalty  on  corpora- 
tions doing  business  in  the  state  while 
members  of  a  trust  or  combination  to  con- 
trol prices,  where  the  state  constitution 
reserves  to  the  legislature  the  power  to 
repeal,  alter,  or  amend  corporate  charters, 
provided  no  injustice  be  done  to  the  in- 
corporators. Hammond  Packing  Co.  f. 
Arkansas,  312  U.  S.  322,  53  L.  Ed.  530,  29 
S.  Ct.  370. 

708-90C.  The  prohibition  against  teach- 
ing white  and  negro  pupils  in  the  same  in- 
stitution, which  is  made  by  Kentucky 
Acts  1904,  chap.  85,  does  not,  when  ap- 
plied to  a  corporation  as  to  which  the 
state  has  reserved  the  power  to  alter, 
amend,  repeal  its  charter,  or  impair  the 
grant.  Berea  College  v.  Kentucky,  211 
U.  S.  45,  53  L.  Ed.  81,  29  S.  Ct.  33. 

"An  amendment  to  the  original  charter, 
which  does  not  destroy  the  power  of  the 
college  to  furnish  education  to  all  per- 
sons, but  which  simply  separates  them  bj' 
time  or  place  of  instruction,  can  not  be 
said  to  'defeat  or  substantially  impair  the 
object  of  the  grant.' "  Berea  College  r. 
Kentucky,  211  U.  S.  45,  53  L.  Ed.  81,  29 
S.   Ct.  33. 

711-2a.  Where  the  charter  of  a  corpora- 
tion declared,  that  the  company  might  ob- 
tain franchise  to  use  the  streets  and 
highways  of  a  city,  with  and  by  the  con- 
sent of  the  general  council;  these  pro- 
visions of  the  charter  give  the  municipality 
ample  authority  to  deal  with  the  subject, 
and  by  virtue  of  this  statutory  power  it 
could  impose  terms,  which  the  company 
might  be  unable  or  unwilling  to  accept; 
in  which  event  the  franchise  granted  by 
the  state  would  be  nugatory.  But,  when 
the  assent  is  given,  the  condition  prece- 
dent has  been  performed,  the  franchise  is 
perfected,  and  can  not  thereafter  be  abro- 
gated by  municipal  action.  For,  while  the 
city  was  given  the  authority  to  consent, 
the  statute  did  not  confer  upon  it  the 
power  to  withdraw  that  consent,  where 
no  attempt  was  made  to  reserve  such  a 
right  in  the  collateral  contract  contained 
in  the  provisions  of  the  ordinance  relat- 
ing to  the  granting  the  franchise.  If  the 
terms    of    the    independent    and    separate 


390 


Vol.  IV. 


CORPORATIONS. 


711-717 


f.  Constniction  of  Amendment. — Construction  of  Statute  Repealing  Spe- 
cial Privileges. — Section  503,  Kentucky  Statutes,  repealing  all  special  cor- 
porate privileges,  related  to  exclusive  grants,  tax  exemptions,  monopolies  and 
similar  immunities,  and  not  to  those  corporate  powers  and  property  rights  needed 
and  conferred  in  order  to  enable  a  corporation  to  perform  the  duties  for  which  it 
had  been  organized.  Xo  attempt  was  made  by  general  law  to  repeal  the  rights 
which  had  vested,  or  to  relieve  a  corporation  of  the  burdens  which  had  been  im- 
posed by  its  charter.-*^ 

h.  Statute  in  Effect  but  Xot  in  Terms  an  Amendment. — Where  the  language 
of  the  statute  is  not  in  terms  an  amendment  of  the  charter  of  a  corporation,  yet  if 
its  effect  is  an  amendment,  it  must  be  held  to  be  an  amendment.  It  would  be  rest- 
ing too  much  on  mere  form  to  hold  that  a  statute  which  in  effect  works  a  change 
in  the  terms  of  the  charter  is  not  to  be  considered  as  an  amendment,  because  not 
so  designated."'^ 

XI.  Corporate  Powers. 

A.  In  General — 1.  Such  as  Charter  axd  Laws  Confer — a.  In  General. — 
In  creating  a  corporation  a  state  may  withhold  powers  which  may  be  exercised  by 
and  can  not  be  denied  to  an  individual.  It  is  under  no  obligation  to  treat  both 
alike.  In  granting  corporate  powers  the  legislature  may  deem  that  the  best  in- 
terests of  the  state  would  be  subserved  by  some  restriction,  and  the  corporation 
may  not  plead  that,  in  spite  of  the  restriction,  it  has  more  or  greater  powers  be- 
cause the  citizen  has.-^^ 

b.  ImpVicd  Poi\.'ers. — See  note  28. 


contract  with  the  municipality  are  broken 
by  the  corporation  or  its  successors,  the 
municipality  has  its  cause  of  action.  But 
the  municipality  can  not  by  an  ordinance 
impair  that  contract  nor  revoke  the  rights 
conferred.  The  charter  franchises  become 
fully  operative  when  the  municipality's 
consent  is  given,  and  thereafter  the  cor- 
poration occupied  the  streets  and  con- 
ducted its  business,  not  under  a  license 
from  the  municipality  but  by  virtue  of  a 
grant  from  the  state  legislature.  Such 
franchises  granted  by  the  legislature  can 
not.  of  course,  be  repealed,  nullified,  or 
forfeited  by  any  ordinance  of  a  general 
council.  Louisville  v.  Cumberland,  etc.. 
Tel.  Co.,  224  U.  S.  649,  56  L.  Ed.  934.  32 
S.  Ct.  572.  See  post,  MUNICIPAL  COR- 
PORATIONS; STREETS  AND  HIGH- 
WAYS. 

Revocation  of  telephone  franchise. — The 
assent  of  the  municipality,  when  once 
given  conformably  to  the  charter  of  a  tele- 
phone company,  empowering  the  latter, 
with  and  by  the  consent  of  the  city  coun- 
cil, to  construct  and  maintain  a  telephone 
system  in  the  city,  perfects  the  company's 
franchise,  which,  being  a  legislative  grant, 
can  not  thereafter  be  repealed,  nullified, 
or  forfeited  by  municipal  ordinance. 
Louisville  v.  Cumberland,  etc.,  Tel.  Co., 
224  U.  S.  649.  56  L.  Ed.  934,  32  S.  Ct.  572. 
See  post.  TELEGRAPHS  AND  TELE- 
PHONES. 

711-4a.  Statute  repealing  special  privi- 
lege.— Louisville  v.  Cumberland,  etc.,  Tel. 
Co..  224  U.  S.  649.  56  L.  Ed.  934.  32  S.  Ct. 
572. 


712-7a.  Statute  in  effect  but  not  in  terms 
an  amendment. — Berea  College  v.  Ken- 
tucky, 211  U.  S.  45,  53  L.  Ed.  81,  29  S. 
Ct.  33. 

Kentucky  Acts  1904,  chap.  85,  prohibit- 
ing the  teaching  of  white  and  negro  pupils 
in  the  same  institution  "being  separable, 
is  to  be  read  as  though  it,  in  one  section, 
prohibited  any  person,  in  another  section 
any  corporation,  and,  in  a  third  any  asso- 
ciation of  persons  to  do  the  acts  named. 
Reading  the  statute  as  containing  a  sepa- 
rate prohibition  on  all  corporations,  at 
least,  all  state  corporations,  it  substan- 
tially declares  that  any  authority  given 
by  previous  charters  to  instruct  the  two 
races  at  the  satne  time  and  in  the  same 
place  is  forbidden,  and  that  prohibition, 
ijeing  a  departure  from  the  terms  of  the 
original  charter  in  this  case,  may  prop- 
erly' be  adjudged  an  amendment."  Berea 
College  V.  Kentucky,  211  U.  S.  45,  53  L. 
Ed.  81,  29  S.  Ct.  33. 

714-21a.  Berea  College  v.  Kentucky,  211 
U.  S.  45,  53  L.  Ed.  81.  29  S.  Ct.  33. 

717-28.  Implied  powers. — The  charter 
of  a  transportation  company  granting 
franchises  to  carry  passengers  and  prop- 
erty for  hire,  and  to  establish,  maintain 
and  operate  stage  routes  for  public  use  in 
the  conveyance  of  persons  and  property 
and  to  receive  compensation  therefor; 
does  not  expressly  include  the_  right  to 
use  the  public  streets  for  advertising  pur- 
pose or  to  carry  or  maintain  exterior  ad- 
vertisements on  its  stages.  The  carrying 
of  such  advertisements  is  not  a  necessary 
or   essential   incident   to   its  express   fran- 


391 


721-744 


CORPORATIONS. 


Vol.  IV. 


2.  Construction — a.  /;/  General. — It  is  competent  for  the  courts  of  a  state  to 
decide  what  powers  a  corporation  derives  under  its  laws,  or  to  what  uses  it  may 
employ  its  property  necessary  for  the  exercise  of  those  powers. ^^^ 

B.  To  Acquire,  Hold  and  Dispose  of  Property — 2.  Power  to  Acquire 
AND  Hold  Lands. — See  note  73.  'Ihis  rule,  while  recognizing  the  authority  of 
the  government  to  which  the  corporation  is  amenable,  has  the  salutary  effect  of 
assuring  the  security  of  titles  and  of  avoiding  the  injurious  consequences  which 
would  otherwise   result.'-''^ 

Entry  of  Coal  Lands. — A  corporation  has  been  held  to  be  an  association  of 
persons  within  the  prohibition  against  more  than  one  entry  of  coal  lands  by  the 
same  person,  which  is  made  by  U.  S.  Revised  Statute,  §§  2547-2352,  U.  S.  Comp. 
Stat.  1441."^^  Corporations  which  are  disqualified  under  the  statute  from  making 
more  than  one  location  of  coal  lands  can  not  make  a  second  location  through  an 
agent  acting  for  that  use  and  benefit.'^  ^'' 

3.  Control  and  Disposition  Thereof. — See  post,  "To  Alienate  Franchise  or 
Property  Necessary  Thereto."  XI,  C. 

C.  To  Alienate  Franchise  or  Property  Necessary  Thereto — 1.  Private 
Corporations  Generally — a.  General  Rule. — Perfecting  Franchise. — For 
while  franchises  to  be  are  not  transferable  without  express  authority,  there  are 
other  franchises  to  have,  to  hold  and  to  use,  which  are  contractual  and  proprietary 
in  their  nature,  and  which  confer  rights  and  privileges  which  can  be  sold  wherever 
the  company,  as  here,  has  power  to  dispose  of  its  property. '^"'^ 

G.  To  Contract. — Extension  beyond  Charter  Period. — See  note  29. 

Disregard  of  Previous  Assent  to  Transaction. — A  corporation  can  not 
disregard  its  previous  assent  in  order  to  charge  a  single  member  with  the  whole 
result  of  a  transaction  to  which  thirteen-fifteenths  of  its  stockholders  were  par- 
ties, for  the  benefit  of  the  guilty,  if  there  was  guilt  in  any  one,  and  the  innocent 
alike.^*'^ 


chise  rights.  Such  exterior  advertising  is 
in  no  way  related  to  the  carrying  of  pas- 
sengers for  hiring.  Fifth  Ave.  Coach 
Co.  V.  New  York,  221  U.  S.  467,  55  L.  Ed. 
815,  31   S.  Ct.  709. 

721-39a.  Construction  by  state  court. — 
Fifth  Ave.  Coach  Co.  v.  New  York,  221 
U.    S.    467,   55    L.    Ed.   815,   31    S.    Ct.   709. 

"The  decision  by  a  state  court  of  the 
extent  and  limitation  of  the  powers  con- 
ferred by  the  state  upon  one  of  its  own 
corporations  is  of  a  purely  local  nature." 
Berea  College  v.  Kentucky,  211  U.  S.  45. 
53  L.   Ed.  81,  29  S.  Ct.  33. 

728-73.  "Where  a  corporation  is  incom- 
petent by  its  charter  to  take  a  title  to  real 
estate,  a  conveyance  to  it  is  not  void,  but 
only  voidable,  and  the  sovereign  alone  can 
object.  It  is  valid  until  assailed  in  a  di- 
rect proceeding  instituted  for  that  pur- 
pose." Kerfoot  v.  Farmers,  etc..  Bank,  218 
U.  S.  281,  54  L.  Ed.  1042,  31  S.  Ct.  14,  fol- 
lowing Runyan  v.  Coster,  14  Pet.  122,  10 
L.  Ed.  382,  and  Gold-Mining  Co.  v.  Na- 
tional Bank,  96  U.  S.  640,  24  L.  Ed.  648. 

"In  the  absence  of  a  clear  expression  of 
legislative  intention  to  the  contrary,  a 
conveyance  of  real  estate  to  a  corporation 
for  a  purpose  not  authorized  by  its  char- 
ter is  not  void,  but  voidable,  and  the  sov- 
ereign alcne  can  object.  Neither  the 
grantor  nor  his  heirs  nor  third  persons 
can  impugn  it  upon   the  ground  that  the 


grantee  has  exceeded  its  powers.  Smith 
V.  Sheeley,  12  Wall.  358,  20  L.  Ed.  430; 
National  Bank  v.  Matthews,  98  U.  S. 
621,  25  L.  Ed.  188;  National  Bank  v.  Whit- 
ney, 103  U.  S.  99,  26  L.  Ed.  443;  Reynolds 
z\  Crawfordsville  First  Nat.  Bank,  112  U. 
S.  405,  28  L.  Ed.  733,  5  S.  Ct.  213;  Fritts 
t.  Palmer,  132  U.  S.  282,  33  L.  Ed.  317,  10 
S.  Ct.  93;  Leazure  v.  Hillegas,  7  Serg.  &  R. 
313."  Kerfoot  v.  Farmers,  etc..  Bank,  218 
U.   S.   281,   54   L.   Ed.   1042,  31   S.    Ct.   14. 

728-73a.  Kerfoot  v.  Farmers,  etc.,  Bank, 
218  U.   S.  281,  54  L.   Ed.  1042,  31   S.   Ct.  14. 

729-75a.  Entry  of  coal  lands. — United 
States  r.  Munday,  222  U.  S.  175.  56  L.  Ed. 
149,  32  S.  Ct.  53;  United  States  v.  Colo- 
rado Anthracite  Co.,  225  U.  S.  219.  56  L. 
Ed.  1063,  32  S.  Ct.  617.  See  post,  MINES 
AND   MINERALS;   PUBLIC   LANDS. 

729-75b.  United  States  f.  Munday,  222 
U.  S.  175,  56  L.  Ed.  149,  32  S.  Ct.  53.  See 
post.  MINERAL  LANDS. 

731 -86a.  Contractual  and  proprietary 
franchises. — Louisville  v.  Cumberland,  etc., 
Tel.  Co.,  224  U.  S.  649,  56  L.  Ed.  934,  32 
S.  Ct.  572. 

743-29.  Minneapolis  ■:■.  Minneapolis 
St.  R.  Co.,  215  U.  S.  417,  54  L.  Ed.  259,  30 
S.  Ct.  118. 

744-36a.  Disregard  of  assent  to  transac- 
tion.— Old  Dominion  Copper,  etc.,  Co.  v. 
Lewisohn,  210  U.  S.  206,  52  L.  Ed.  1025, 
28  S.  Ct.  634. 


392 


Vol.  IV. 


CORPORATIOXS. 


744-784 


Effect  of  Increasing  Stock  and  Bringing  in  New  Stockholders. — Since 
a  corporation  remains  unchanged  and  unaffected  in  its  identity  by  increasing  its 
capital  stock,  it  is  bound  by  its  assent  in  a  transaction,  legally  given  before  such 
increase,  after  the  additional  stock  has  been  issued  and  new  subscribers  brought 

XIV.  Actions  by  and  against  Corporations. 

D.  Averment  and  Proof  of  Incorporation. — Judicial  Notice  of  Federal 
Incorporation. — A  federal  court  will  judicially  notice  that  a  corporate  defend- 
ant was  incorporated  by  an  act  of  congress,  even  without  any  averment  of  the  fact 
in  the  petition.^'*'' 

XV.   Consolidation  and  Succession. 

A.  Consolidation — 1.  Right  to  Coxsolidate  and  Validity  of  Coxsolida- 
Tiox — a.  Legislative  Authority  and  Xecessity  Therefor. — Whether  corporations 
shall  remain  separate  or  be  permitted  to  consolidate  is  a  matter  of  state  regulation 
and  provision.-^'' 

3.    Efffxt  ox  Powers,  Privileges  axd  Immuxities. — See  note  45. 

B.  Succession — 1-.  Traxsfer  of  Rights,  Privileges  axd  Immuxities — a. 
/n  General. — Where  a  corporation  is  incorporated  under  a  general  act  creating 
certain  obligations,  it  can  not  receive  by  transfer  from  another  company  an  ex- 
emption inconsistent  with  its  own  charter  or  the  constitution  and  laws  of  the  state 
then  applicable,  and  this  even  though  the  legislative  authority  undertook  to  trans- 
fer the  exemption  by  words  which  clearly  included  it.''-^" 


744-36b.  Effect  of  bringing  in  new  stock- 
holder.— Old  Dominion  Copper,  etc.,  Co. 
z:  Lewisohn,  210  U-  S.  206,  52  L.  Ed.  1025, 
28  S.  Ct.  634.  See  ante,  "Contracts  before 
Increase  of  Stock,"  III,  B,  2. 

768-13a.  Judicial  notice  of  federal  in- 
corporation.— In  re  Dunn,  212  U.  S.  o74, 
53  L.  Ed.  558.  29  S.  Ct.  299.  See  post. 
JUDICIAL  NOTICE. 

771-26a.  Necessity  for  consent  of  legis- 
lature.— Mobile,  etc.,  R.  Co.  z'.  Mississippi, 
210  U.  S.  187.  202,  52  L.  Ed.  1016.  28  S. 
Ct.    650. 

779-45.  The  right  to  use  the  city  streets 
for  telephone  purposes,  possessed  by  a 
telephone  compao}-  under  its  charter, 
passed  to  the  new  corporation  formed  by 
consolidation  conformably  to  Ky.  Stat., 
§  556,  which  declares  that  the  consoli- 
dated company  shall  be  vested  with  all 
the  property,  business,  assets,  and  effects 
of  the  constituent  companies,  without  deed 
or  transfer,  and  bound  for  all  their  con- 
tracts and  liabilities.  Louisville  v.  Cum- 
berland, etc..  Tel.  Co.,  224  U.  S.  649,  56  L. 
Ed.  934.  32    S.   Ct.   572. 

Estoppel  of  city  from  denying  succes- 
sion to  consolidated  telephone  company. 
— The  demand  by  a  municipality  from 
a  consolidated  telephone  company  of 
the  bond  previously  required  of  the  origi- 
nal company,  and  the  expenditure  of  large 
sums  by  the  consolidated  company  in  ex- 
tending and  improving  the  telephone  sys- 
tem, with  the  knowledge  and  acquiescence 
of  the  city,  and  in  reliance  upon  the  statu- 
tory conveyance  of  the  street  rights,  es- 
tops the  city   from   claiming  that  its  con- 


sent to  the  use  of  the  city  streets  by  the 
original  company  for  telephone  purposes 
was  inoperative,  and  from  denying  that 
the  consolidated  company  had  succeeded 
to  the  rights  and  obligations  of  its  prede- 
cessor. Louisville  i'.  Cumberland,  etc., 
Tel.  Co.,  224  U.  S.  649,  56  L.  Ed.  934,  32  S. 
Ct.  572.  See  post,  STREETS  AXD  HIGH- 
WAYS; TELEGRAPHS  AXD  TELE- 
PHONES. 

784-63a.  Transfer,  etc.,  of  privileges. — 
Yazoo,  etc..  R.  Co.  f.  Vicksburg,  209  U. 
S.  358,  52  L.  Ed.  833,  28  S.  Ct.  510,  fol- 
lowing Rochester  R.  Co.  v.  Rochester,  205 
U.  S.  236.  51  L.  Ed.  784,  27  S.  Ct.  469. 

In  Rochester  R.  Co.  v.  Rochester,  205 
U.  S.  236.  51  L.  Ed.  784,  27  S.  Ct.  469, 
previous  decisions  of  the  federal  supreme 
coitrt  are  collated  on  page  254.  The  court, 
speaking  of  ]\Ir.  Justice  Moody,  said: 
"The  principle  governing  these  decisions, 
so  plain  that  it  needs  no  reasoning  to  sup- 
port it,  is  that  those  who  seek  and  ob- 
tain the  benefit  of  a  charter  of  incorpora- 
tion must  take  the  benefit  under  the  con- 
ditions and  with  the  burdens  prescribed 
by  the  laws  then  in  force,  whether  writ- 
ten in  the  constitution,  in  general  laws,  or 
in  the  charter  itself."  Yazoo,  etc.,  R.  Co. 
-■.  Vicksburg.  209  U.  S.  358,  52  L.  Ed.  833, 
28   S.  Ct.  510. 

Exemption  from  taxation. — A  contract 
exemption  from  taxation,  made  by  a  mu- 
nicipality under  authority  of  law,  for  a 
valuable  consideration,  with  one  of  the 
constituent  railway  companies,  does  not 
pass  to  a  consolidated  company  organized 
after   the   adoption    of   Miss.    Const.    1890, 


393 


790-793 


CORPORATIONS. 


Vol.  IV. 


XVII.  Insolvency,  Winding  Up,  Dissolution  and  Forfeiture. 

B.  Dissolution,  Forfeiture  and  Ouster — 3.  Jurisdiction  and  Procedure 
TO  Ascertain  and  Declare — a.  In  General. — A  forfeiture  of  the  franchises  of 
a  private  corporation  for  misuses  or  nonuses  of  them  may  be  declared  by  a  judicial 
judgment  upon  quo  warranto  to  ascertain  and  enforce  the  forfeiture,  but  quo 
warranto  is  not  the  only  remedy.^^"^ 

b.  Necessity  for  Judgment  of  Ouster. — The  result  of  a  judgment  that  a  cor- 
poration was  violating  its  corporate  privileges  and  franchises  may,  under  the  stat- 
utes of  the  state  of  incorporation,  be  that  the  chartered  rights  and  franchises 
cease   without   further  proceedings.^"*^ 

4.  Causes  of  Dissolution  and  Forfeiture — b.  Misuser  or  Nonuser  of  Fran- 
chises.— See  note  91. 


§  ISl,  requiring  the  property  of  corpora- 
tions to  be  taxed  like  that  of  individuals. 
Yazoo,  etc.,  R.  Co.  v.  Vicksburg,  209  U.  S. 
358,  52  L.  Ed.  833,  28  S.  Ct.  510.  See  post, 
TAXATION. 

"The  formation  of  the  consolidated 
company  was  not  iinposed  upon  the  com- 
plainant; it  had  the  privilege  of  standing 
upon  such  rights  as  it  had  by  contract  or 
otherwise  under  the  former  legislation 
in  force  before  the  adoption  of  the  new 
constitution.  When  it  saw  fit  to  enter 
into  the  consolidation  and  form  a  new  cor- 
poration in  1892,  the  constitution  then  in 
force  in  the  state  became  the  law  of  its 
corporate  being,  and  the  requirement  that 
corporate  property  should  not  be  ex- 
empt from  taxation  then  became  binding 
upon  it,  as  upon  all  other  corporations 
formed  tmder  the  new  organic  law." 
Yazoo,  etc.,  R.  Co.  v.  Vicksburg,  209  U. 
S.  358,  52  L.  Ed.  833,  28  S.  Ct.  510. 

"Apart  from  the  ruling  of  the  Miss- 
issippi court,  we  think  it  is  entirely  clear 
that  the  effect  of  organizing  the  consoli- 
dated corporation  after  the  adoption  of 
the  Mississippi  constitution  of  1890 
was  to  bring  the  new  corporation  within 
the  terms  and  limitations  of  that  consti- 
tution, which  prohibited  exemption  of  cor- 
porate property  from  taxation.  The  ex- 
emption to  the  former  constituent  com- 
pany could  not  inure  to  the  consolidated 
company  without,  in  effect,  ignoring  the 
constitutional  provision."  Yazoo,  etc.,  R. 
Co.  V.  Vicksburg,  209  U.  S.  358,  52  L.  Ed. 
833.  28   S.   Ct.    510. 

790-85a.  Jurisdiction,  etc.,  to  ascertain 
and  declare. — Cosmopolitan  Club  v.  Vir- 
ginia. 208  U.  S.  378,  52  L-  Ed.  536.  28  S. 
Ct.   394. 

"In  New  Orleans  Waterworks  Co.  v. 
Louisiana.  185  .U-  S.  336,  46  L.  Ed.  936,  32 
S.  Ct.  691,  the  first  of  several  questions 
raised  there  was  that,  since  the  charter 
of  a  certain  waterworks  company  pre- 
scribed mandamus  as  the  remedy  to  main- 
tain a  lawful  tariff  of  water  rates,  was  not 
the  substitution  by  the  writs  of  forfeiture 
of  charter,  as  a  remedy  for  the  mainte- 
nance of  unlawful  rates,  a  breach  of  the 
contract,   and   a   deprivation   of   the  prop- 


erty without  due  process  of  law,  and  a 
denial  of  the  equal  protection  of  the 
laws?  The  court  answered  the  question 
by  saying:  "The  answer  to  the  first 
question,  as  to  mandamus  being  the  ex- 
clusive remedy  for  illegal  rates,  is  that 
the  state  court  has  otherwise  construed 
the  charter,  and  has  held  that  mandamus 
is  not  the  only  remedy,  but  that  the  com- 
pany was  liable  to  be  proceeded  against 
by  quo  warranto  at  the  suit  of  the  state, 
through  its  attorney  general.  The  claim 
that,  by  so  proceeding,  there  is  any  im- 
pairment of  the  obligation  of  a  contract 
lay  any  subsequent  legislation,  or  that 
there  has  thus  been  a  deprivation  of  prop- 
erty without  due  process  of  law,  or  a  de- 
nial of  the  equal  protection  of  the  laws, 
has  no  colorable  foundation."  Cosmopoli- 
tan Club  V.  Virginia,  208  U.  S.  378,  52  L. 
Ed.   536,  28   S.   Ct.  394. 

791-87a,  Necessity  for  judgment  of 
ouster. — Cosmopolitan  Club  v.  Virginia, 
208  U.  S.  378,  52  L.  Ed.  536,  539,  28  S.  Ct. 
394. 

A  judgment  of  a  court  of  competent 
jurisdiction,  all  the  parties  being  before  it 
and  given  full  opportunity  to  be  heard, 
adjudging  that  a  charge  that  a  private  cor- 
poration misused  its  corporate  privileges 
and  franchises  by  violating  and  evading 
the  statute  of  the  state  regulating  the  sale 
of  liquors;  can  not  be  held  to  have  vio- 
lated any  rights  belonging  to  the  club 
under  the  contract,  due  process,  or  other 
clause  of  the  federal  constitution,  although 
the  result  being  that,  by  the  statute,  the 
chartered  rights  and  franchises  of  the  club 
ceased  without  any  further  proceedings. 
Cosmopolitan  Club  v.  Virginia,  208  U.  S. 
378,  52  L.  Ed.  536,  28   S.  Ct.  394. 

793-91.  Misuser  and  nonuser  of  fran- 
chises.— The  principle  is  well  established 
that  the  charter  of  a  private  corporation 
may  be  forfeited  or  annulled  for  the  mis- 
use of  its  corporate  privileges  and  fran- 
chises, and  that  its  forfeiture  or  annul- 
ment by  appropriate  judicial  proceedings, 
for  such  a  reason,  would  not  impair  the 
obligation  of  the  contract  arising  between 
the  state  and  the  corporation  out  of  the 
mere  granting  of  the  charter.     Cosmopol- 


394 


Vol.  IV 


CORPORATIOX    TAX. 


800 


C.  Effects  and  Consequences — 5.  Distribution  of  Assets — f.  Receiver- 
ship.— A  receiver  is  properly  appointed  in  a  stockholder's  suit,  where  the  com- 
pany's properties  have  all  been  sold  and  its  assets  are  to  be  distributed  among  the 
stockholders.^'^'' 

CORPORATION  TAX.— See  post,  Revenue  Laws. 


itan  Club  v.  Virginia,  208  U.  S.  378,  52 
L.  Ed.  536,  538,  28  S.  Ct.  394.  See.  also, 
Delmar  Jockey  Club  v.  Missouri,  210  U. 
S.  324,  52   L.   Ed.  1080,  28  S.   Ct.  732. 

"As  early  as  Terrett  v.  Taylor,  9 
Cranch  43,  51,  3  L.  Ed.  650,  this  court 
said:  'A  private  corporation  created  by 
the  legislature  may  lose  its  franchises  by 
a  misuser  or  a  nonuser  of  them;  and  they 
may  be  resumed  by  the  government  un- 
der a  judicial  judgment  upon  a  quo  war- 
ranto to  ascertain  and  enforce  the  for- 
feiture.' So  in  New  Orleans  Waterworks 
Co.  V.  Louisiana,  185  U.  S.  336,  46  'l,.  Ed. 
936.  22  S.  Ct.  691."  Cosmopolitan  Club 
V.  Virginia,  208  U.  S.  378,  52  L.  Ed.  536, 
28   S.   Ct.  394. 

"In  Chicago  Life  Ins.  Co.  v.  Needles, 
113  U.  S.  574,  580,  28  L.  Ed.  1084,  5  S. 
Ct.  681,  an  insurance  company  contested 
the  validity,  under  the  contract  clause  of 
the  constitution,  of  a  statute  of  Illinois 
prescribing  certain  regulations  (not  in 
force  when  the  company's  *  charter  was 
granted)  in  reference  to  the  conduct  of 
life  insurance  business  in  that  state. 
This  court  overruled  the  contention,  ob- 
serving: The  right  of  the  plaintiff  in  error 
to  exist  as  a  corporation,  and  its  author- 
ity, in  that  capacity,  to  conduct  the  par- 
ticular business  for  which  it  was  created, 
were  granted,  subject  to  the  condition 
that  the  privileges  and  franchises  con- 
ferred upon  it  should  not  be  abused,  or 
so  employed  as  to  defeat  the  ends  for 
which   it  was   established,   and   that,  when 


so  abused  or  misemployed,  they  might 
be  withdrawn  or  reclaimed  by  the  state, 
in  such  way  and  by  such  modes  of  pro- 
cedure as  were  consistent  with  law.  W- 
though  no  such  condition  is  expressed  in 
the  company's  charter,  it  is  necessarily 
implied  in  every  grant  of  corporate  ex- 
istence. Terrett  v.  Taylor,  9  Cranch  43, 
51,  3  L.  Ed.  650;  Angell  &  A.  Priv.  Corp. 
9th  Ed.,  §  774,  note."  Cosmopolitan 
Club  V.  Virginia,  208  U.  S.  378,  52  L.  Ed. 
536,   28    S.    Ct.   394. 

Violation  of  liquor  laws  by  social  club. 
— A  contract  between  a  private  corpora- 
tion and  the  state  resulting  from  the 
charter  granted  to  a  club  of  Virginia, 
formed  to  promote  social  intercourse, 
athletic  and  physical  culture,  and  to  en- 
courage manly  sports;  did  not  authorize 
the  club  to  disregard  the  valid  laws  of 
the  state  regulating  the  licensing  and  sale 
of  liquors,  which  the  commonwealth 
could  rightfully  make  under  its  power  to 
care  for  the  health  and  morals  of  its  peo- 
ple. The  charge  against  the  club  was 
that  it  was  being  conducted  for  the  pur- 
pose of  violating  and  evading  the  statute 
regulating  the  licensing  and  sale  of  liq- 
uors. Such  a  course  upon  the  part  of 
the  club  is  a  misuse  of  its  corporate  priv- 
ileges and  franchises.  Cosmopolitan 
Club  V.  Virginia,  208  U.  S.  378,  52  L.  Ed. 
536,  28  S.  Ct.  394. 

800-16a.  Receivership. — Zeckendorf  v. 
Steinfeld,  225  U.  S.  445,  56  L.  Ed.  1156, 
32  S.  Ct.  728.     See  post.  RECEIVERS. 


395 


810-820  COUNTERCLAIM.  Vol.  IV. 


COSTS. 

II.  Right  to  and  Liability  for  Costs,  396. 

A.   In  Civil  Proceedings,  396. 

2.  Allowance  and  Apportionment,  396. 
b.  In  Original  Proceedings,  396. 

( 1 )  On  Final  Judgment  or  Decree,  396. 

(c)    Matters  Affecting  Allowance  or  Apportionment,  396. 
cc.  Outcome  or  Disposition  of  Case,  396. 
(bb)   Dismissal,  396. 

IV.  Taxation  of  Costs,  396. 

C,  Amount  and  Items  Taxable,  396. 
1.  In  Original  Proceedings,  396. 

(b)   Particular  Items,  396. 
(  1 )   Fees  of  Attorneys,  Solicitors  and  Proctors,  396. 
( 3 )  Fees  of  Officers  of  Court,  396. 

CROSS   REFERENCES. 

See  the  title  Costs,  vol.  4,  p.  802,  and  references  there  given. 

II.  Right  to  and  Liability  for  Costs. 

A.  In  Civil  Proceedings — 2.  Allowance  and  Apportionment — b.  In  Orig- 
inal Proceedings — ( 1 )  On  Final  Indguient  or  Decree — (c)  Matters  Affecting  Al- 
loivance  or  Apportionment — cc.  Outcome  or  Disposition  of  Case — (bb)  Dis- 
missal.— See  note  29. 

IV.  Taxation  of  Costs. 

C.  Amount  and  Items  Taxable — 1.  In  Original  Proceedings — (b)  Par- 
ticular  Items — (1)  Pees  of  Attorneys,  Solicitors  and  Proctors. — In  an  action  for 
damages  for  the  violation,  by  a  common  carrier,  of  §  8  of  the  act  to  regulate  com- 
merce, of  February  4th,  1887,  c.  104,  the  plaintiff'  may  recover,  in  addition  to  the 
full  amount  of  damages  sustained  in  consequence  of  suit  violation,  a  reasonable 
counsel  or  attorney's  fee,  to  be  fixed  by  the  court  in  every  case  of  recovery,  which 
attorney's  fee  shall  be  taxed  and  collected  as  part  of  the  costs  of  the  case." "^ 

(3)    Pees  of  Officers  of  Court. — See  note  83. 

COTENANTS. — See  post,  Joint  Tenants  and  Tenants  in  Common. 
COUNTERCLAIM.— See  post,   Set-Off,  Recoupment  and  Counterclaim. 

810-29.  Costs  not  awarded  where  case  820-83.  Docket  fees  where  claims  con- 
dismissed  for  want  of  jurisdiction.— No  solidated  in  single  suit.— Each  successful 
costs  should  l)e  imposed  upon  the  dis-  claimant  in  an  action  on  the  bond  of  a 
missal  for  want  of  jurisdiction  of  a  bill  in  public  contractor,  given  conformably  to 
equity  to  enjoin  the  secretary  of  the  in-  the  Act  of  August  13,  1894,  as  amended 
terior  and  commissioners  appointed  by  by  the  Act  of  February  24,  1905,  for  the 
him  from  selling  or  disturbing  an  Indian  protection  of  laborers  and  materialmen, 
cemetery.  Conley  ?■.  Ballinger,  216  U.  may  be  allowed  the  docket  fee  authorized 
S.  84,  54  L.  Ed.  393,  30  S.  Ct.  224.  by    U.    S.    Rev.    Stat.,   §    824,    U.    S.    Comp. 

819-77a._  Attorney's  fees  as  costs,  in  Stat.  1901,  p.  632,  since  the  claims  are 
suit  for  violation  of  act  to  regulate  com-  several,  and  represent  distinct  causes  of 
merce. — Atlantic,  etc.,  R.  Co.  z:  Riverside  action  in  different  parties,  although  con- 
Mills,  219  U.  S.  186,  55  L.  Ed.  167,  31  solidated  in  a  single  suk.  Title,  etc., 
S.  Ct.  164.                                         .  Trust   Co.  v'.   Crane   Co.,  219   U.   S.   24,  55 


L.    Ed.   72,   31    S.    Ct.   140. 


396 


Vol.  IV.  COURT  OF  INQUIRY.  844 

COUNTIES. — See  the  title  Counties,  vol.  4,  p.  824,  and  references  there 
given. 

In  addition,  see  ante,  Appe:al  and  Error,  p.  34;  post,  Municipal  Corpora- 
tions; Municipal,  County,  State  and  Federal  Aid. 

COUNTRY.— See  note  1. 

COUNTRY. — See  post,  Indians;  Reve:nue;  Laws. 

COUNTS. — See  post.  Indictments,  Informations,  Presentments  and 
Complaints. 

COUPONS. — See  the  title  Coupons,  vol.  4,  p.  846,  and  references  there  given. 

COURT  OF  CLAIMS.— See  post,  Courts;  Indians;  United  States. 

COURT  OF  INQUIRY.— See  post,  Military  Law. 

844-1.  Country.— Faber  v.  United  States,  See  ante,  ANOTHER  COUNTRY,  p.  31; 
221  U.  S.  649,  55  L.  Eel.  897,  31  S.  Ct.  659.        post,  OTHER. 

397 


COURTS.  Vol.  IV. 


COURTS. 

IV.  Terms  and  Sessions,  402. 

C.  Commencement  and  Termination.  402. 

VI.  Decisions,  403. 

A.  Duty  to  Decide  Questions,  403. 

VII.  Federal  Courts,  403. 

A.  General  Principles,  403. 

4.  Jurisdiction,  403. 

b.  Power  of  Congress  to  Prescribe  Jurisdiction,  403. 

c.  Power  of  States  to  Extend  or  Restrict  Jurisdiction,  404. 

(3)  Restriction  of  Jurisdiction,  404. 

(a)  In  General,  404. 

(b)  Suits  between  Citizens  of  DilTerent   States,  404. 

e.  Jurisdiction  to  Give  Complete  Relief,  404. 

f.  What  Courts  Decide  Questions  of  Jurisdiction,  404. 

5.  Power  to  Issue  Writs,  404. 

B.  District  Courts,  404. 

3.  Jurisdiction,  404. 

c.  Suits  for  Penalties  and  Forfeitures,  404. 

C.  Circuit  Courts,  405. 

3.  Terms  and  Sessions,  405. 

4.  Jurisdiction,  405. 

b.  Grounds  of  Jurisdiction,  405. 

(1)   Cases  Arising  under  Constitution,  Laws  or  Treaties,  405. 

(c)  To  What  Cases  Jurisdiction  Extends,  405. 
cc.   Suits  against   State.  405. 

{d)    What  Are  Cases  Arising  under  Constitution  and 
Laws,  406. 
aa.  General  Rules,  406. 

bb.  Necessity  for  Federal  Question  to  Be  Real  and 
Substantial,  408. 

(e)  Suits  Arising  under  Constitutional  Provisions,  408. 
aa.  Impairment  of  Obligation  of  Contracts,  408. 

(aa)   In  General  408. 

(bb)   Municipal  Franchises  or  Contracts,  408. 

(cc)    Exemptions   from   Taxation,   408. 
bb.  Denial  of  Due  Process  of  Law,  408. 
cc.  Denial  of  Equal  Protection  of  Laws,  409. 
dd.  Denial  of  Full  Faith  and  Credit  to  Acts,  Rec- 
ords, etc.,  of  State.  410. 

(f)  Suits  Arising  under  Federal  Laws,  410. 
ee.  Copyright  Laws,  410. 

ff.   Interstate  Commerce  Act,   411. 
gg.   Patent  Laws,  411. 
(aa)  In  General,  411. 
(bb)     "Case"  Distinguished   from  "Question," 

411. 
(cc)     W^hat   Cases   Arise  under   Patent   Laws, 
412. 
aaa.  In  General,  412. 

398 


Vol.  IV.  V  COURTS. 


jj.  Trademark  Laws,  413. 
(g)   Suits  by  or  against  National  Banks,  413. 

bb.  Rule  under  Act  of  1882,  413. 
(i)  Suits  with  Respect  to  Land  Grants  or  Patents,  413. 
aa.    Title  Derived  from  Patent  or  Act  of  Congress, 
413. 
(aa)  Assertion  of  Title  under  Patent,  413. 
bb.  Assertion  of  Title  imder  Act  of  Congress,  414. 
(2)  Suits  between  Citizens  of  Different  States,  414. 
(a)   General  Rules,  414. 

aa.    Constitutional   and    Statutory    Provisions,    414. 
dd.  What  Constitutes  a  Controversy,  414. 

(c)  Citizenship  of  Real  Parties  in  Interest  as  Control- 

ling,  414. 
cc.    Arrangement  of  Parties  According  to  Interest, 
414. 
(g)  Change  of  Domicile  or  Citizenship  before  Suit,  415. 
aa.  Real  and  Bona  Fide  Change.  415. 
(aa)    In  General,  415. 

(bb)     Change  for  Purpose  of  Giving  Federal 
Courts  Jurisdiction,  415. 
bb.   Fraudulent  or   Fictitious  Change,  415. 
(aa)    By  Natural  Person,  415. 
(bb)   Fraudulent  Incorporation,  415. 
(h)   Suits  by  or  against  Artificial  Bodies,  416. 
aa.  Corporations,  416. 

(aa)    General  Rules  as  to  Suits  by  or  against 
Corporations,  416. 
bbb.  Present  Rule,  416. 
(cc)    Corporation  Created  by  One  State  and 
Doing  Business  In  Another,  416 
ccc.    Corporation    Domesticated   by    Filing 

Articles,   etc..  416. 
ddd.      Actually       Reincorporation      under 
Laws  of  Second  State,  416. 
(aaa)   In  General,  416. 
fff.   Suits   by   Stockholders   on   Behalf   of 
Corporation,   416. 
(dd)   Effect  of  Admission  of  State,  416. 
(e)    Suits  by  Assignees,  417. 

bb.  Object  of  Restriction,  417. 
(m)  Parties  Collusively  IMade  or  Joined,  417. 
(4)    Suits  between    Aliens  or  between  Citizens    and  Aliens, 
418. 
d.  Amount  in  Controversy,  418. 

(1)  Amount  Necessary  to  Give   Jurisdiction,  418. 
(a)  General  Rule,  418. 

(2)  What  Constitutes,  418. 

(d)  Suits  to  Prevent  Future  Loss  or  Damage.  418. 

(e)  Suits  to  Enjoin  Taxes,  418. 

(i)  Joinder  of  Interests  of  Several  Parties,  418. 

aa.  Parties  Having  Common  or  Undivided  Interest, 

418. 
bb.   Parties  Having  Distinct  Interests,  419. 
(9)  Proof  of  A'alue  of  Amount  in  Dispute,  419. 

399 


COURTS.  Vol.  IV. 

g.  Jurisdictional  Averments,  419. 

(1)  General  Rules,  419. 

(a)     Necessity   for    Averment  of  Jurisdictional    Facts, 
419. 

E.  Supreme  Court,  420. 

1.  Jurisdiction,  420. 

a.'  Original  Jurisdiction,  420. 

(4)   To  What  Cases  Jurisdiction  Extends,  420. 
(c)   Cases  to  Which  State  Is  a  Party,  420. 

aa.  Necessity  for  State  to  Be  Real  Party,  420. 
dd.   Suits  between  States,  420. 

(bb)  Necessity  for  State  to  Be  Pecuniarily  In- 
terested, 420. 
(dd)   Nature  and  Object  of  Suit,  420. 

ccc.  Suits  for  Recovery  of  Debts  and  for 
Accounting,  420. 
ee.  Suits  between  State  and  United  States,  420. 
ff.    Suits    between    States    and    Citizens   of    Other 
States  or  Aliens,  420. 
(aa)  Suits  by  State,  420. 
aaa.  General  Rule,  420. 
ddd.  Jurisdiction  as  Dependent  on  Nature 
of  Relief  Sought,  421. 
(ccc)  Actions  to  Enforce  Penal  Laws 
of  State,  421. 
(bb)    Suits  against   State,  421. 
gg.  Suits  between  State  and  Its  Citizens,  421. 

2.  Procedure,  421. 

a.  In  Exercise  of  Original  Jurisdiction,  421. 

(2)  Mode  of  Proceeding,  421. 
(6)  Pleading,' 421. 

(a)  In  General,  421. 

F.  Court  of  Claims,  421. 

2.  Jurisdiction,  421. 

e.  Nature  and  Extent  of  Jurisdiction,  421. 

(1)  Under  General  Statute,  421. 

(c)  Actions  for  Torts,  421. 

(d)  Civil  War  Claims,  422. 

(f)  Claims  for  Property  Taken  for  Public  Use,  422. 
aa.    Property    to    Which    Government   Asserts    No 
Title,  422. 

(2)  Under  Special  Statutes,  422. 
(a)  In  General,  422. 

(f)  Claims  by  Indian  Tribes,  422. 

3,  Procedure,  423. 

c.  Evidence,  423. 

( 1 )  Ordinary  Rules  of  Evidence  Govern,  423. 
J.  State  Laws  as  Rules  of  Decision  in  Federal  Courts,  423. 

1.  Statutory  Provision,  423. 

2.  Reason  of  Rule,  423. 

9.  Right  of  Federal  Court  to  Exercise  Independent  Judgment,  423. 
a.  In  Absence  of  Decision  by  State  Court,  423. 

(1)  In  General,  423. 

(2)  Effect  of  Subsequent  Contrary  Decision  by  State  Court, 

424. 

400 


Vol.  IV.  COURTS. 

13.  Upon  What  Questions  or  Matters  State  Laws  and  Decisions  Gov- 
ern, 424. 
c.  Particular  Questions  or  Matters,  424. 
( 1 )  Actions,  424. 

(b)  Right  of  Actions  Given  by  State  Laws,  424. 
bb.  Rights  of  Equitable  Nature,  424. 
(5)  Attachment  and  Garnishment,  424. 
(7)   Bills,  Notes  and  Cheeks,  424. 
(10)   Courts,  424. 

(b)   Jurisdiction,  424. 
(12)   Construction  of   State  Constitution  or  Laws,  424. 

(a)  In  General,  424.      ■ 

(b)  Construction   Considered  as   Part  of   Statute,   424. 

(c)  Consistency  of  Statute  with  State  Constitution,  425. 

(d)  Construction  of  State  Constitution,  425. 
aa.  In  General,  425. 

(f)   Decision  as  to  What  Are  Laws  of  State,  425. 
bb.  Legality  of  Enactment,  425. 
cc.  Repeal.  425. 
(14)   Corporations,  425. 

(b)  Powers,  425. 

(c)  Construction  of  Charter,  425. 
•              (15)   Criminal  Law,  426. 

(16)  Damages,  426. 

(17)  Death  by  Wrongful  Act,  426. 
(27)   Insurance,  426. 

(a)   Construction  of  Insurance  Policy,  426. 
(31  )   Limitation  of  Actions  and   Adverse  Possession.  426. 

(a)  Effect  of  State  Statute  on  Proceedings  in  Federal 

Court,  426. 
aa.  In  Absence  of  Limitations  Provided  by  Act  of 
Congress,  426. 
(aa)   In  General,  426. 
{^2)   Master  and  Servant,  426. 
(36)    Personalty,  426. 

(b)  Mortgages  or  Liens,  426. 
(39)   Real  Estate.  426. 

(b)  Deeds,  426. 

cc.  Construction  and  Operation,  426. 
(45)   Taxation  and  Assessment,  426. 
(a)  Taxation,  426. 

bb.  Construction  of  State  Laws  as  Binding  Federal 
Courts,  426. 
(aa)    In  General,  426. 
fee)   Exemption  from  Taxation,  427. 

(50)  Wills,  427. 

(c)  Construction,  427. 

(51)  Liens  and  Priorities,  427. 
K.  Forms  and  Modes  of  Proceeding,  427. 

3.  Under  Practice  Conformity  Act.  427. 

a.  In  General,  427. 

b.  Origin  and  Purpose  of  Act.  427. 

d.  Nature  and  Extent  of  Conformity  Required,  427. 
g.  Federal   Tnrisdiction  Not  Affected' by  State  Practice,  428. 
(1)    In  General,  428. 

12   U   S    Enc— 26  401 


887  COURTS.  Vol.  IV. 

(3)   State  Statute  Giving  Special  Appearance  Effect  of  Gen- 
eral Appearance,  428. 
j.  With  Respect  to  What  Proceedings  Conformity  Is  Required, 
428. 

(3)  Appearance.  Summons  and  Process,  428. 
(b)    Summons  and  Process,  428. 

(4)  Form  of  Action,  428. 

IX.  Territorial  Courts,  428. 

C.  Powers  of  Territorial  Legislature,  428. 
E.  Jurisdiction,  428. 

4.  District  Court  of  Porto  Rico,  428. 
G.  Effect  of  Admission  of  Territory  as  State,  429. 

2,  Transfer  of  Pending  Causes  on  Admission,  429. 

a.  Necessity  for  Cause  to  Be  Pending,  429. 

XII.  Exclusive,  Concurrent  and  Conflicting  Jurisdiction,  430. 

A.  Exclusive  or  Concurrent  Jurisdiction,  430. 

1.  As  between  State  and  Federal  Courts,  430. 

b.  Suits  between  Citizens  of  Different  States,  430. 

c.  Suits  Arising  under  Constitution,  Laws  or  Treaties,  430. 
g.  Suits  in  Admiralty,  430. 

4.  Comity  between  Courts  of  Concurrent  Jurisdiction,  430. 

B.  Conflict  between  Courts  of  Concurrent  Jurisdiction,  430.     * 

1.  Retention  of  Jurisdiction  by  Court  First  Acquiring  It,  430. 

a.  In  General,  430. 

b.  Necessity  for  Identity  of  Causes,  431. 

c.  Property  in  Custody  of  Court,  431. 

(1)  General  Rule,  431. 

(2)  Mode  of  Procuring  Custody,  431. 

(b)  Seizure  under  Execution,  431. 

(c)  Seizure  under  Attachment,  431. 

(d)  Appointment  of   Receiver,  431. 

d.  Application  of  Rules  as  between  State  and  Federal  Courts,  431. 

(1)  In  General,  431. 

(2)  Property  in  Custody  of  Federal  Court,  432. 

(3)  Property  in  Custody  of  State  Court,  432. 

(4)  Conflict  between  Federal  and  Probate  Courts,  432. 

(5)  Bankruptcy  Proceedings,  432. 

(6)  In  Criminal  Cases,  433. 

2.  Termination  of  Proceeding  in  Court  First  Acquiring  lurisdiction, 

433. 

C.  Conflict  between  Civil  and  Military  Courts,  433. 

CROSS   REFERENCES. 

See  the  title  Courts,  vol.  4,  p.  861,  and  references  there  given. 

In  addition,  see  ante.  Admiralty,  p.  10;  post.  Jurisdiction. 

As  to  appellate  jurisdiction,  see  ante.  Appeal  and  Error,  p.  34.  As  to  courts 
— martial  and  military  courts,  see  post.  Military  Law.  As  to  federal  question 
as  grounds  for  removal,  see  post.  Removal  of  Causes. 

IV.  Terms  and  Sessions. 
C.  Commencement  and  Termination. — See  note  22. 

^  887-22.     Commencement     and     termina-  beginning  on  the  first  Monday  of  Febru- 

tion. — "We   think  the  purpose  of   the   law  ary   and   March,   respectively,  which   term 

was    to    provide    for    statutory    terms    of  should    continue    until    the    beginning    of 

court  for  the  northern  district  of  Florida,  the  next  term,  unless  finally  adjourned  in 

403 


Vol.  IV. 


COURTS. 


888-891 


VI.  Decisions. 

A.  Duty  to  Decide  Questions.— See  note  28.  A  federal  circuit  court,  if 
properly  appealed  to,  can  not  decline,  on  the  ground  of  discretion  or  comity,  to 
take  jurisdiction  of  a  suit  to  enjoin  the  enforcement  of  state  statutes  fixing  gas 
rates  which  are  asserted  to  violate  the  federal  constitution. ^s^^ 

VII.  Federal  Courts. 

A.  General  Principles— 4.  Jurisdiction— b.  Pozver  of  Congress  to  Prescribe 
Jurisdiction. — See  note  42.  By  the  express  terms  of  the  constitution,  the  exer- 
cise of  the  judicial  power  is  limited  to  "cases"  and  "controversies."  Beyond 
this  it  does  not  extend,  and  unless  it  is  asserted  in  a  case  or  controversy  within 
the  meaning  of  the  constitution,  the  power  to  exercise  it  is  nowhere  conferred.^"^ 


the  meantime.  Such  is  the  general  and 
recognized  practice  in  the  circuit  courts 
of  the  United  States."  Harlan  v.  Mc- 
Gourin,  218  U.  S.  442,  54  L.  Ed.  1101,  31 
S.  Ct.  44,  citing  East  Tennessee  Iron  & 
Coal  Co.  V.  Wiggin,  15  C.  C.  A.  510,  37 
U.    S.    App.    129,    68    Fed.    44(3. 

Opening  and  adjourning. — See  post, 
"Terms   and    Sessions,"   VII,   C,   3. 

888-28.  Duty  to  decide. —  Tt  therefore 
appeared  upon  the  record  presented  to  the 
circuit  court  of  appeals  that  the  circuit 
court  had  practically  abandoned  its  juris- 
diction over  a  case  of  which  it  had  cog- 
nizance, and  turned  the  matter  over  for 
adjudication  to  the  state  court.  This,  it 
has  been  steadily  held,  a  federal  court 
may  not  do."  McClellan  z'.  Carland,  217 
U.  S.  268,  54  L.  Ed.  762,  30  S.  Ct.  501, 
citing  Chicot  County  z-.  Sherwood,  148  U. 
S.   529,   534,  37   L.   Ed.   546,   13   S.   Ct.   695. 

888-28a.  County  between  courts.— Will- 
cox  v.  Consolidated  Gas  Co.,  212  U.  S.  19, 
53  L.  Ed.  382,  29  S.  Ct.  192. 

"The  right  of  a  party  plaintiff  to  choose 
a  federal  court  where  there  is  a  choice 
can  not  be  properly  denied.  In  re  Metro- 
politan R.  Receivership,  208  U.  S.  90,  110, 

52  L.  Ed.  403,  28  S.  Ct.  219;  Prentis  z: 
Atlantic    Coast    Line    Co.,    211    U.    S.    210, 

53  L.  Ed.  150,  29  S.  Ct.  67.  In  the  latter 
case  it  was  said  that  a  plaintiff  could  not 
be  forbidden  to  try  the  facts  upon  which 
his  right  to  relief  is  based  before  a  court 
of  his  own  choice,  if  otherwise  competent. 
Tt  is  true  an  application  for  an  injunction 
was  denied  in  that  case  because  the  plain- 
tiff should,  in  our  opinion,  have  taken  the 
appeal  allowed  him  by  the  law  of  Virginia 
while  the  rate  of  fare  in  litigation  was 
still  at  the  legislative  stage,  so  as  to  make 
it  absolutely  certain  that  the  officials  of 
the  state  would  trj^  to  establish  and  en- 
force an  unconstitutional  rule."  Wil'.cox 
V.  Consolidated  Gas  Co.,  212  U.  S.  19,  53 
L.    Ed.    382,   29    S.    Ct.    192. 

891-42.  Power  of  congress  to  prescribe 
jurisdiction. — "  'The  original  jurisdiction  of 
this  court  is  confined  to  the  cases  speci- 
fied in  the  constitution,  and  that  congress 
can  not  enlarge  it.     In  all  other  cases  its 


power  must  be  appellate.' "  Muskrat  v. 
United  States,  219  U.  S.  346,  55  L.  Ed.  246, 
31  S.  Ct.  250,  citing  United  States  v.  Fer- 
reira,  13  How.  40.  14  L.  Ed.  42. 

891-43a.  Extends  to  "cases"  and  "con- 
troversies."— Muskrat  v.  United  States, 
219  U.  S.  346,  55  L.  Ed.  246,  31  S.  Ct.  250. 

"Whenever  the  claim  of  a  party  under 
the  constitution,  laws,  or  treaties  of  the 
United  States  takes  such  a  form  that  the 
judicial  power  is  capable  of  acting  upon 
it,  then  it  has  become  a  case.  The  term 
implies  the  existence  of  present  or  pos- 
sible adverse  parties,  whose  contentions 
are  submitted  to  the  court  for  adjudica- 
tion." Muskrat  v.  United  States,  219  U. 
S.  346,  55  L.  Ed.  246,  31  S.  Ct.  250. 

"By  cases  and  controversies  are  in- 
tended the  claims  of  litigants  brought  be- 
fore the  courts  for  determination  by  such 
regular  proceedings  as  are  established  by 
law  or  custom  for  the  protection  or  en- 
forcement of  rights,  or  the  prevention, 
redress,  or  punishment  of  wrongs." 
Muskrat  z:  United  States,  219  U.  S.  346, 
55  L.   Ed.  246,  31   S.   Ct.  250. 

Congress  could  not,  as  was  attempted 
by  Act  March  1,  1907,  c.  2285,  34  Stat. 
1015,  confer  jurisdiction  upon  the  court 
of  claims,  and,  by  appeal,  upon  the  fed- 
eral supreme  court,  of  suits  against  the 
United  States,  to  be  brought  by  certain 
named  Cherokee  Indians,  for  themselves 
and  all  others  similarly  situated,  to  de- 
termine the  validity  of  acts  of  congress 
passed  since  Act  July  1,  1902,  c.  137^5,  32 
Stat.  716,  so  far  as  such  acts  purport  to 
increase  or  extend  the  restrictions  upon 
alienation,  incumbrance,  or  the  right  to 
lease  the  allotments  of  lands  of  Cherokee 
citizens,  or  to  increase  the  number  of  per- 
sons entitled  to  share  in  the  final  distri- 
bution of  the  Cherokee  lands  and  funds, 
since  this  is  nothing  more  than  an  attempt 
to  provide  for  a  final  judicial  determina- 
tion in  the  supreme  court  of  the  consti- 
tutional validitj^  of  congressional  legisla- 
tion, without  a  "case"  or  "controversj-"  to 
which,  under  the  federal  constitution,  the 
judicial  power  alone  extends.  Muskrat  v. 
United  States,  219  U.  S.  346,  55  L.  Ed. 
246,  31   S.   Ct.  250,  reversing  judgment,  44 


403 


893-898 


COURTS. 


Vol.  IV 


c.  Poiver  of  States  to  Extend  or  Restrict  Jurisdiction— (3)  Restriction  of  Ju- 
risdiction—(a)  In  General.— The  equity  jurisdiction  of  the  courts  of  the  United 
States  can  not  be  Hmited  or  in  anywise  curtailed  by  state  legislation  as  to  its  own 
courts.^"^^ 

(b)  Suits  between  Citizens  of  Different  States.— The  general  rule  is  that,  in- 
asmuch as  the  jurisdiction  of  the  courts  of  the  United  States  is  derived  from 
the  federal  constitution  and  statutes,  that,  in  so  far  as  controversies  between 
citizens  of  different  states  arise  which  are  within  the  established  equity  juris- 
diction of  the  federal  courts,  the  jurisdiction  may  be  exercised,  and  is  not  sub- 
ject to  limitations  or  restraint  by  state  legislation  establishing  courts  of  probate, 
and  giving  them  jurisdiction  over  similar  matters.'*'"'  Of  course  the  courts  of 
the  United  States,  while  they  may  exercise  the  jurisdiction  and  make  decrees 
binding  upon  the  parties,  can  not  seize  and  control  the  property  which  is  in  the 
possession  of  the  state  court.^^"^ 

e.  Jurisdiction  to  Give  Complete  Relief. — A  circuit  court,  having  obtained 
jurisdiction  by  reason  of  the  federal  questions  set  up  by  the  bill,  may  decide  all 
the  questions  in  the  case,  even  though  it  decides  the  federal  questions  adversely 
to  the  party  raising  them,  or  omits  to  decide  them,  but  decides  the  case  on  local 
questions  only.'"'^'' 

f.  What  Courts  Decide  Questions  of  Jurisdiction. — See  note  55. 
5.    Power  to  Issue  Writs. — See  note  56. 

B,  District  Courts — 3.  Jurisdiction — c.  Suits  for  Penalties  and  Forfeitures. 
— See  note  (A. 


Ct.  CI.  137  and  Brown  r.  Same,  44  Ct.  CI. 
283. 

The  pendency  in  the  courts  of  the  Dis- 
trict of  Columbia  of  suits  to  enjoin  the 
secretary  of  the  interior  from  carrying 
into  efifect  certain  congressional  legisla- 
tion when  congress  attempted,  by  Act 
Alarch  1,  1007,  c.  3285,  34  Stat.  1015,  to 
confer  jurisdiction  upon  the  court  of 
claims,  and,  by  appeal,  upon  the  federal 
supreme  court,  of  suits  against  the  United 
States,  to  be  brought  by  the  petitioners  in 
the  then  pending  litigation  to  determine 
the  validity  of  such  legislation,  does  not 
remove  the  objection  that  action  not  ju- 
dicial in  its  nature  within  the  meaning 
of  the  federal  constitution  was  thereby  re- 
quired of  the  supreme  court.  Muskrat  z: 
United  States,  219  U.  S.  346,  55  L.  Ed. 
246,  31  S.  Ct.  250,  reversing  judgment,  44 
Ct.  CI.  137  and  Brown  v.  Same,  44  Ct.  CI. 
285. 

893-47a.  Restriction  by  state  law. — 
Waterman  r.  Canal-Louisiana  Bank.  etc.. 
Co.,  215  U.  S.  33.  54  L.  Ed.  80,  30  S. 
Ct.    10. 

894-49a.  Effect  of  state  legislation  es- 
tablishing probate  courts. — Waterman  :■. 
Canal-Louisiana  Bank,  etc.,  Co.,  215  U. 
S.  33.  54   L.   Ed.  80,  30  S.  Ct.   10. 

The  supreme  court  has  uniformly  main- 
tained the  right  of  federal  courts  of  chan- 
cery to  exercise  original  jurisdiction  (the 
proper  diversity  of  citizenship  existing) 
in  favor  of  creditors,  legatees,  and  heirs, 
to  establish  their  claims  and  have  a 
proper  execution  of  the  trust  as  to  them. 
Waterman  v.  Canal-Louisiana  Bank,  etc., 
Co.,  215  U.  S.  33,  54  L.  Ed.  80,  30  S.  Ct.  10. 


The  chancery  jurisdiction  of  the  fed- 
eral courts  embraces  a  suit,  where  the 
requisite  diversity  of  citizenship  exists,  to 
have  the  complainants  adjudicated  to  be 
the  heirs  at  law  and  next  of  kin  of  a  de- 
cedent. McClellan  v.  Carland,  217  U.  S. 
268,  54   L.    Ed.   762,   30   S.    Ct.   501. 

894-49b.  Where  property  in  custody  of 
state  court. — Waterman  z\  Canal-Louisi- 
ana Bank,  etc.,  Co.,  215  U.  S.  33,  54  L.'  Ed. 
80.  30  S.  Ct.  10.  See  post,  "Conflict  be- 
tween Federal  and  Probate  Courts,''  XII. 
B,  1,  d,  (4). 

897-47a.  Deciding  all  questions. — Siler 
V.  Louisville,  etc.,  R.  Co.,  213  U.  S.  175.  53 
L.  Ed.  753,  29  S.  Ct.  451. 

897-55.  Deciding  questions  of  jurisdic- 
tion.—See  post,  JURISDICTION. 

897-56.  Power  to  issue  writs. — See 
ante.  APPEAL  AND  ERROR,  p.  34: 
CERTIORARL  p.  228;  post,  HABEAS 
CORPUS;  INTUNCTIONS:  MANDA- 
AlUS. 

898-64.  Suits  for  penalties  and  forfei- 
tures.— District  courts  of  the  L^nited  States 
are  the  proper  courts  to  adjudicate  for- 
feitures, and  where  the  plea  to  the  juris- 
diction is  simply  whether  the  particular 
court  has  jurisdiction,  by  reason  of  the 
locality  in  which  the  goods  were  seized, 
the  question  involved  is  not  the  jurisdic- 
tion of  the  United  States  court  as  such, 
and  the  question  can  not  be  certified  to 
the  federal  supreme  court  under  §  5  of 
the  Judiciary  Act  of  1891;  but  the  case  is 
appealable  to  the  circuit  court  of  appeals. 
United  States  v.  Larkin,  208  U.  S.  333,  52 
L.    Ed.   517,  28   S.   Ct.   417. 


404 


Vol.  lY 


COURTS. 


901-906 


C.    Circuit  Courts — 3.  Terms  and  Sessions. — See  note  83. 

4.  Jurisdiction — b.  Grounds  of  Jurisdiction — (1)  Cases  Arising  under  Con- 
stitution, La7\.-s  or  Treaties — (c)  To  ll'liut  Cases  Jurisdiction  Extends — cc.  Suits 
against  State. — See  note  7. 


901-83.     Terms  and  sessions. — See  ante, 
"Terms  and  Sessions,"  IV. 

The  regular  terms  of  the  federal  cir- 
cuit court  for  the  northern  district  of 
Florida,  begun,  re'spectively,  under  Rev. 
St.  U.  S..  §  658  (U.  S.  Comp.  St.  1901,  p. 
531),  at  Tallahassee  on  the  first  Monday 
of  February,  and  at  Pensacola  on  the  first 
Monday  in  March,  continue  for  one  year 
unless  finally  adjourned  in  the  meantime, 
notwithstanding  the  temporary  absence 
of  the  judge  from  one  term  while  hold- 
ing court  at  the  other,  since,  under  sec- 
tion 612,  circuit  courts  may  be  held  at 
the  same  time  in  different  districts  of  the 
same  circuit,  and,  under  §  672,  if  neither 
of  the  circuit  judges  be  present  to  open 
and  adjourn  any  regular  or  special  ses- 
sion, either  of  them  may,  by  written  or- 
der, directed  alternatively  to  the  marshal 
and  the  clerk,  adjourn  the  court  from 
time  to  time,  as  the  case  may  require,  to 
any  time  before  the  next  regular  term. 
Ex  parte  Harlan.  180  F.  119;  Harlan  v. 
McGourin,  218  U.  S.  442,  54  L.  Ed.  1101, 
31  S.  Ct.  44.  See  ante.  ADJOURN- 
MENTS, p.   9. 

Under  Rev.  St.,  §  658  ( U.  S.  Comp.  St. 
1901,  p.  530),  providing  for  terms  of  the 
circuit  court  in  the  northern  district  of 
Florida  at  Tallahassee  on  the  first  Mon- 
day in  February  and  at  Pensacola  on  the 
first  Monday  in  March,  the  court  has 
every  day  of  the  succeeding  12  months  in 
which  to  sit  at  each  place  unless  the  right 
to  hold  court  during  that  period  is  termi- 
nated by  final  adjournment  or  by  nonat- 
tendance  at  the  commencement  of  the 
term  and  failure  to  instruct  the  marshal 
to  adjourn  to  a  subsequent  day  in  the 
term;  and,  after  a  term  has  been  regularl}' 
opened,  a  judge's  failure  to  open  court  on 
a  day  of  the  term  to  which  a  recess  has 
been  taken,  or  to  appoint  a  time  when 
court  will  be  resumed  does  not  forfeit  the 
right  to  resume  sittings  at  any  time.  Ex 
parte  Harlan,  180  F.  119,  decrees  affirmed. 
Harlan  v.  McGourin,  218  U.  S.  442,  54  L. 
Ed.    1101,    31    S.    Ct.    44. 

"The  statutes  of  the  United  States  pro- 
vide for  two  terms  of  the  United  States 
circuit  court  for  the  northern  district  of 
Florida,  the  one  beginning  on  the  first 
Monday  of  Februarj-,  at  Tallahassee,  the 
other  the  first  Monday  in  March,  at  Pen- 
sacola. 1  U.  S.  Rev.  Stat.,  §  658  (U.  S. 
Comp.  Stat.  1901,  p.  531.)  Section  612  of 
the  Revised  Statutes  (U.  S.  Comp.  Stat. 
1901,  p.  494)  provides  that  the  circuit 
courts  of  the  United  States  can  be  held  at 
the  same  time  in  different  districts  of  the 
same    circuit."      Harlan   v.    McGourin,   218 


U.    S.    442,    54    L.    Ed.    1101,    31   S.    Ct.   44. 

906-7.  Suits  against  state. — Ex  parte 
Young,  209  U.  S.  123,  52  L.  Ed.  714,  28 
S.  Ct.  441;  Scully  v.  Bird,  209  U.  S.  481, 
52    L.    Ed.    899,   28    S.    Ct.    597. 

A  federal  court  may  enjoin  the  attorney 
general  of  a  state,  whose  general  duty  is 
to  enforce  the  state  statutes,  from  pro- 
ceeding to  enforce  against  persons  af- 
fected a  state  statute  which  violates  the 
federal  constitution;  such  proceeding  be- 
ing not  prohibited  by  the  provision  of  the 
federal  constitution  forbidding  the  main- 
tenance of  actions  against  a  state.  Ex 
parte  Young.  209  U.  S.  123,  52  L.  Ed.  714, 
28   S.    Ct.   441. 

The  power  of  a  federal  court  to  enjoin 
state  officials  from  enforcing  a  state  stat- 
ute, the  validity  of  which,  under  the  fed- 
eral constitution,  has  been  questioned  be- 
fore it,  does  not  extend  to  restraining  a 
state  court  from  acting  in  a  case  brought 
before  it  to  enforce  the  statute,  nor  in- 
vestigation or  action  by  a  grand  jury  un- 
der it.  Ex  parte  Young.  209  U.  S.  123, 
52   L.    Ed.    714.  28   S.    Ct.   441. 

That  the  attorney  general  of  a  state 
must,  to  enforce  a  state  statute,  resort  to 
mandamus,  in  which  proceeding  he  ordi- 
narily represents  the  state  in  its  govern- 
mental capacity,  does  not  prevent  a  fed- 
eral court  from  enjoining  him  from  so 
doing,  where  the  statute  violates  the  fed- 
eral constitution,  since,  in  such  case,  his 
act  in  attempting,  in  the  name  of  the  state, 
to  enforce  a  void  enactment,  is  merely  il- 
legal, because  in  conflict  with  the  su- 
perior authority  of  the  federal  constitu- 
tion, and  he  is  stripped  of  his  official 
character,  and  the  prohibition  against  .his 
proceeding  does  not  therefore  afifect  the 
state  in  its  governmental  capacity.  Ex 
parte  Young,  209  U.  S.  123,  52  L.  Ed.  714, 
28    S.    Ct.    441. 

The  general  discretion  of  the  attorney 
general  of  a  state,  regarding  the  enforce- 
ment of  the  laws  when  and  as  he  deems 
appropriate,  is  not  interfered  with  by  an 
injunction  restraining  him  from  taking 
any  steps  towards  the  enforcement  of  an 
unconstitutional  enactment,  to  the  injury 
of  a  complainant.  Ex  parte  Young,  209 
U.    S.   123,   52   L.    Ed.   714.  28   S.   Ct._  441. 

When  state  not  a  party  of  real  interest. 
— Creditors  of  the  state  dispensary  could 
maintain  a  suit  in  equity  to  enforce  the 
trust  by  the  commission  constituted  by 
Sess.  Laws  1907,  p.  480,  §  47.  and  page 
835,  §§  1,  3,  5,  to  close  out  such  dispensary 
on  its  refusal  to  pay  their  claims  and  for 
an  injunction  and  the  appointment  of  a 
receiver  in  aid  of  such  relief,  and  to  such 


405 


907 


COURTS. 


Vol.  IV. 


(d)     What  Are   Cases  Arising   under   Constitution   and   Laws — aa.    General 
Rides. — See  notes  9,  10. 


a  suit  the  state  was  not  a  necessary  party. 
Judgment  (C.  C.)  Fleischmann  Co.  v. 
Murray,  161  F.  162;  Wilson  Distilling  Co. 
V.  Same,  Id.,  affirmed.  (C.  C.  A.)  Murray 
V  Wilson  Distilling  Co.,  164  F.  1,  decree 
reversed.  Murray  v.  Wilson  Distilling  Co., 
213  U.  S.  151,  53  L.   Ed.  742,  29   S.   Ct.  4.58. 

The  "state  dispensary  commission,"  au- 
thorized by  Sess.  Laws  1907,  p.  480,  §  47, 
and  p.  835.  §§  1,  3,  5,  to  close  out  the 
business  of  the  dispensary  by  selling  its 
property  and  collecting  all  debts  due  it, 
"and  by  paying  from  the  proceeds  all  just 
lialiilities  at  the  earliest  date  practicable," 
and  to  pay  into  the  state  treasury  "all 
surplus  funds  on  hand  after  paying  all  lia- 
bilities," were  not  state  officers,  but 
merely  agents  for  the  benefit  primarily 
of  the  creditors  and  a  suit  in  a  federal 
court  by  such  creditors  against  them  to 
have  the  amounts  due  determined  and 
paid  from  the  fund  was  not  one  against 
the  state,  of  which  the  court  was  without 
jurisdiction  under  the  eleventh  constitu- 
tional amendment.  Judgment  (C.  C.) 
Fleischmann  Co.  v.  Murray,  161  K.  162; 
Wilson  Distilling  Co.  v.  Same,  Id.,  af- 
firmed. (C.  C.  A.)  Murray  v.  Wilson  Dis- 
tilling Co.,  164  F.  1,  decree  reversed.  Mur- 
ray V.  Wilson  Distilling  Co.,  213  U.  S.  151, 
53  L.  Ed.  742,  29  S.  Ct.  458. 

The  existing  relation  of  debtor  and 
creditor  between  South  Carolina  and  the 
vendors  of  liquor  under  the  state  dispen- 
sary acts  was  not  so  altered  by  the  Wind- 
ing-Up  Act  of  February  16,  1907  (25  St. 
at  Large  [S.  C]  p.  835),  providing  a  com- 
mission to  close  out  the  state  dispensary 
business  and  turn  over  to  the  state  treas- 
ury the  surplus  funds  remaining  after  liq- 
uidating and  paying  claims  out  of  the  state 
assets,  as  to  enable  a  federal  circuit  court 
to  take  jurisdiction  of  a  bill  filed  by  such 
vendors,  which  seeks  to  enjoin  the  com- 
mission from  disposing  of  the  fund  until 
their  claims  are  paid,  and  asks  for  the 
appointment  of  a  receiver,  on  the  theory 
that  by  such  statute  the  assets  of  the  dis- 
pensary were  placed  in  the  hands  of  the 
commission  as  a  trust  fund  for  the  bene- 
fit of  all  creditors  having  valid  claims 
against  such  fund,  which  they  are  en- 
titled to  enforce  by  judicial  action  against 
the  commission,  without  the  presence  of 
the  state  as  a  necessary  party.  Decree 
(C.  C.  A.  1908),  164  F.  1,  reversed.  Mur- 
ray V.  Wilson  Distilling  Co.,  213  U.  S. 
151,  53  L.  Ed.  742,  29  S.  Ct.  458;  Murray 
V.  Ray,  213  U.  S.  174,  53  L.  Ed.  752,  29 
S.  Ct.  465. 

"Thus,  in  Hagood  v.  Southern,  117  U. 
S.  52,  29  L.  Ed.  805,  6  S.  Ct.  608,  where, 
in  suits  brought  in  a  court  of  the  United 
States  against  officers  and  agents  of  the 


state  of  South  Carolina,  the  holders  of 
certain  revenue  scrip  of  the  state  endeav- 
ored to  enforce  the  redemption  thereof 
according  to  the  terms  of  the  statute  in 
pursuance  of  which  the  scrip  was  issued, 
which  statute  was  alleged  to  constitute  an 
irrepealable  contracts  the  court  said: 
"Though  not  nominallj'  a  party  to  the  rec- 
ord, it  (the  state)  is  the  real  and  only 
party  in  interest,  the  nominal  defendants 
being  the  officers  and  agents  of  the  state, 
having  no  personal  interest  in  the  sub- 
ject matter  of  the  suit,  and  defending  only 
as  representing  the  state.' "  Murray  v. 
Wilson  Distilling  Co.,  213  U.  S.  151,  53 
L.    Ed.   742,   29    S.    Ct.   458. 

Compelling  specific  performance  of  con- 
tract— Consent  of  state  necessary. — "A 
l)ill  in  equity  to  compel  the  specific  per- 
formance of  a  contract  between  individ- 
uals and  a  state  can  not,  against  the  ob- 
jection of  the  state,  be  maintained  in  a 
court  of  the  United  States."  Murray  v. 
Wilson  Distilling  Co.,  213  U.  S.  151,  53 
L.    Ed.   742,   29    S.    Ct.   458. 

"And  it  is  elementary  that,  even  if  a 
state  has  consented  to  be  sued  in  its  own 
courts  by  one  of  its  creditors,  a  right 
would  not  exist  in  such  creditor  to  sue  the 
state  in  a  court  of  the  United  States." 
Murray  v.  Wilson  Distilling  Co.,  213  U. 
S.  151,  53  L.  Ed.  742,  29  S.  Ct.  458,  citing 
Smith  V.  Reeves,  178  U.  S.  436,  44  L.  Ed. 
1140.  20  S.  Ct.  919,  and  cases  cited;  Chand- 
ler 7'.  Dix,  194  U.  S.  590,  48  L.  Ed.  1129, 
24   S.   Ct.   766. 

907-9.  Where  correct  decision  depends 
on  construction  of  constitution  or  laws. — 

"In  Patton  v.  Brady,  184  U.  S.  608,  46  L. 
Ed.  713,  22  S.  Ct.  493,  discussing  the  ques- 
tion as  to  when  a  case  may  be  said  to 
arise  under  the  constitution  of  the  United 
States,  the  court  observed:  'It  is  said  by 
Chief  Justice  Marshall  that  "a  case  in  law 
or  equity  consists  of  the  right  of  the  one 
party,  as  well  as  of  the  other,  and  may 
truly  be  said  to  arise  under  the  constitu- 
tion or  a  law  of  the  United  States  when- 
ever its  correct  decision  depends  on  the 
construction  of  either."  Cohens  v.  Vir- 
ginia, 6  Wheat.  264,  379,  5  L.  Ed.  257; 
and  again,  "when  the  title  or  right  set  up 
by  the  party  may  be  defeated  by  one  con- 
struction of-  the  constitution  or  law  of 
the  United  States,  and  sustained  by  the 
opposite  construction."  '  "  Macon  Grocery 
Co.  V.  Atlantic,  etc..  R.  Co.,  215  U.  S.  501, 
54  L.  Ed.  300,  30  S.  Ct.  184,  citing  Os- 
born  V.  Bank,  9  Wheat.  738,  822,  6  L.  Ed. 
204.  See,  also,  Gold- Washing,  etc.,  Co.  v. 
Keyes,  96  U.  S.  199,  201.  24  L.  Ed.  656; 
Tennessee  v.  Davis,  100  U.  S.  257,  25  L. 
Ed.  648;  White  v.  Greenhow.  114  U.  S. 
307,  29  L.   Ed.  199,  5  S.  Ct.  923,  962;   Rail- 


406 


Vol.  IV. 


COURTS. 


907-908 


Anticipated  Defenses. — It  is  the  settled  interpretation  that  a  suit  arises 
under  the  constitution  and  laws  of  the  United  States  only  when  the  plaintiff's 
statement  of  his  own  cause  of  action  shows  that  it  is  based  upon  those  laws  or 
that  constitution.^-'^  When  the  plaintiff  alleges  some  anticipated  defense  to  his 
cause  of  action  and  asserts  that  the  defense  is  invalidated  by  some  provision  of 
the  constitution  of  the  United  States,  although  such  allegation  shows  that  very 
likely,  in  the  course  of  the  litigation,  a  cjuestion  under  the  constitution  may 
arise,  yet  it  does  not  show  that  the  suit — that  is,  the  plaintiff's  original  cause  of 
action — arises  under  the  constitution.^-" 


road  Co.  v.  Mississippi,  102  U.  S.  135,  139, 
26  L.   Ed.   96. 

907-10.  Where  rights  involved  may  be 
su.stained  or  defeated  by  construction  of 
constitution  or  laws. — "A  suit  to  enforce 
a  right  which  takes  its  origin  in  the  laws 
of  the  United  States  is  not  necessarily,  or 
for  that  reason  alone,  one  arising  under 
those  laws,  for  a  suit  does  not  so  arise 
unless  it  really  and  substantially  involves 
a  dispute  or  controversy  respecting  the 
validity,  construction,  or  effect  of  such  a 
law,  upon  the  determination  of  which  the 
result  depends.  This  is  especially  so  of 
a  suit  involving  rights  to  land  acquired 
under  a  law  of  the  United  States.  If  it 
were  not,  every  suit  to  establish  title  to 
land  in  the  central  and  western  states 
would  so  arise,  as  all  titles  in  those  states 
are  traceable  back  to  those  laws."  Shul- 
this  V.  McDougal,  225  U.  S.  561,  56  L.  Ed. 
1205,  32  S.  Ct.  704,  citing  Gold- Washing, 
etc.,  Co.  z:  Keyes,  96  U.  S.  199,  24  U  Ed. 
656:  Colorado,  etc.,  Min.  Co.  v.  Turck,  150 
U.  S.  138,  37  U  Ed.  1030,  14  S.  Ct.  35; 
Blackburn  v.  Portland  Gold  Min.  Co.,  175 
U.  S.  571,  44  U  Ed.  276,  20  S.  Ct.  222; 
Florida,  etc.,  R.  Co.  v.  Bell,  176  U.  S. 
321,  44  U  Ed.  486,  20  S.  Ct.  399;  Shoshone 
Min.  Co.  V.  Rutter,  177  U.  S.  505,  44  L. 
Ed.  864,  20  S.  Ct.  726;  De  Lamar's,  etc., 
Min.  Co.  V.  Nesbitt,  177  U.  S.  523,  44  L. 
Ed.   872,   20    S.    Ct.   715. 

Allegations  in  a  bill  to  enjoin  the  en- 
forcement, as  in  violation  of  Const.  U.  S. 
Amend.  14,  of  an  order  of  a  state  railroad 
commission,  that  such  commission  was 
not  vested  with  power  to  make  that  order, 
do  not  defeat  the  jurisdiction  of  a  federal 
circuit  court  because,  in  such  case,  the  ac- 
tion of  the  commission  is  not  that  of  the 
state,  where  the  bill  sets  up  several  en- 
tirely separate  federal  questions,  some  of 
which  are  directed  to  the  invalidity,  on 
various  constitutional  grounds,  of  the  state 
statute  under  the  supposed  authority  of 
which  the  order  was  made,  and  some  of 
which  are  founded  upon  the  terms  of  the 
order.  Siler  v.  Louisville,  etc.,  R.  Co.,  213 
U.  S.  175,  53  L.  Ed.  753,  29  S.  Ct.  451;  Siler 
T'.  Illinois  Cent.  R.  Co.,  213  U.  S.  199,  53 
L.  Ed.  760,  29  S.  Ct.  458. 

908-12a.  Anticipated  defense, — Louis- 
ville, etc.,  R.  Co.  V.  Mottley,  211  U.  S.  149, 
53  L.  Ed.  126,  29  S.  Ct.  42. 

A  suit  to   compel   the   specific  perform- 


ance by  a  carrier  of  its  agreement  to  is- 
sue free  passes  annually  to  the  complain- 
ants is  not  brought  within  the  original  ju- 
risdiction of  a  federal  circuit  court  as  one 
arising  under  the  constitution  or  laws  of 
Ihe  United  States,  within  the  meaning  of 
Act  Aug.  13,  1888,  c.  866,  25  Stat.  434  (U. 
S.  Comp.  St.  1901,  p.  509),  by  allegations 
in  the  bill  that  the  refusal  to  comply  with 
the  contract  is  based  upon  the  provisions 
of  Act  Cong.  June  29,  1906,  c.  3591,  34  Stat. 
584  (U.  S.  Comp.  St.  Supp.  1907,  p.  892), 
and  that  such  act  does  not  prohibit  the 
giving  of  passes  under  the  circumstances 
of  the  case,  and,  if  construed  as  having 
such  efifect.  violates  Const.,  Amend.  5,  by 
denving  due  process  of  law.  Judgment, 
Mottley  V.  Louisville  &  N.  R.  Co.  (C.  C. 
1907),  150  F.  406,  reversed.  Louisville, 
etc.,  R.  Co.  V.  Mottley,  211  U.  S.  149,  53  L. 
Ed.  126.  29  S.  Ct.  42. 

A  federal  question,  which  will  give  a 
federal  court  jurisdiction  of  a  suit,  is  not 
presented  merely  because  in  the  course  of 
the  proceedings  reference  may  be  had  to 
some  federal  statute;  but  it  must  be  shown 
by  the  pleadings  that  there  is  a  contro- 
versy concerning  the  meaning  or  applica- 
tion of  the  statute.  American  Nat.  Bank 
of  Washington  v.  Tappan,  174  Fed.  Rcd. 
431. 

908-12b.  Louisville,  etc.,  R.  Co.  7.'.  Mott- 
ley, 211  U.  S.  149,  53  L.  Ed.  126,  29  S. 
Ct.  42. 

In  Tennessee  v.  Union,  etc..  Bank,  152 
U.  S.  454,  38  L.  Ed.  511,  14  S.  Ct.  654, 
the  plaintifif,  the  State  of  Tennessee, 
brought  suit  in  circuit  court  of  the  United 
States  to  recover  from  the  defendant  cer- 
tain taxes  alleged  to  be  due  under  the  laws 
of  the  state.  The  plaintifif  alleged  that  the 
defendant  claimed  immunity  from  taxa- 
tion by  virtue  on  its  charter,  and  that 
therefore  the  tax  was  void,  because  in  vio- 
lation of  the  provision  in  the  constitution 
against  impairing  the  obligation  of  the 
contract.  The  cause  was  held  to  be  be- 
yond the  jurisdiction  of  the  court.  Louis- 
ville, etc.,  R.  Co.  V.  Mottley,  211  U.  S.  149, 
53  L.  Ed.  126,  29  S.  Ct.  42. 

Again,  in  Boston,  etc.,  Min.  Co.  v.  Mon- 
tana Ore,  etc.,  Co.,  188  U.  S.  632,  47  L.  Ed. 
626,  23  S.  Ct.  434,  the  plaintiff  brought  suit 
in  the  United  States  circuit  court  for  the 
conversion  of  copper  ore,  and  for  an  in- 
junction against  its  continuance  the  plain- 


407 


908-913 


COURTS. 


Vol.  IV. 


bb.  Necessity  for  Federal  Question  to  Be  Real  and  Substantial.— Whether  a 
state  railroad  statute,  although  on  its  face  relating  only  to  intrastate  rates,  is 
an  interference  with  interstate  commerce,  raises  a  federal  question  which  can 
not  be  considered  frivolous. ^^'^ 

(e)  Suits  Arising  under  Constitutional  Proznsions — aa.  Impairment  of  Obli- 
gation of  Contracts — (aa)  In  General. — See  note  16. 

(bb)  Municipal  Franchises  or  Contracts. — See  note  19.  Or  where  the  ordi- 
nance was  nothing  more  than  an  order,  simply  to  put  them  in  disobedience,  as 
a  ground  for  a  suit,  if  the  city  was  right.^^^ 

(cc)    Exemptions  from  Taxation. — See  note  22. 

bb.   Denial  of  Due  Process  of  Laiv. — See  note  23. 


tifif  alleged,  for  the  purpose  of  showing  ju- 
risdiction, in  substance,  that  the  defendant 
would  set  up  in  defense  certain  laws  in 
the  United  States.  This  cause  was  held 
to  be  beyond  the  jurisdiction  of  the  cir- 
cuit court.  Louisville,  etc.,  R.  Co.  v.  Mott- 
ley,  211  U.  S.  149.  53  L-  Ed.  126,  29  S. 
Ct.    42. 

908-13a.  Ex  parte  Young,  209  U.  S.  12:5. 
]24,  52  L.  Ed.  714,  28  S.  Ct.  441. 

910-16.  Impairment  of  obligations  of 
contracts. — Jurisdiction  exists  because  the 
case  is  one  arising  under  the  constitution 
of  the  United  States,  where  the  complain- 
ant insists  that  under  such  constitution 
the  law  of  the  state  is  invalid,  because  it 
impairs  the  obligations  of  a  contract  pro- 
tected by  that  instrument.  Jetton  v.  Uni- 
versity, 208  U.  S.  489,  52  L.  Ed.  584,  28  S. 
Ct.  375;  Illinois  Cent.  R.  Co.  v.  Adams, 
180  U.  S.  28,  35,  45  L.  Ed.  410,  21  S.  Ct. 
251.  And  see  post,  IMPAIRMENT  OF 
OBLIGATION   OF  CONTRACTS. 

912-19.  Refusal  of  municipality  to  per- 
form contract. — A  suit  to  enjoin  the  offi- 
cers of  a  municipality  from  violating  its 
contract  to  take  over  the  laterals  of  a 
drainage  company,  to  be  paid  for  by  tax 
warrants,  can  present  no  real  or  substan- 
tial federal  question  respecting  the  impair- 
ment of  contract  obligations  or  taking  of 
property  without  due  process  of  law  which 
will  sustain  the  original  jurisdiction  of  a 
federal  circuit  court,  without  regard  to  the 
citizenship  of  the  parties.  Shawnee  Sew- 
erage, etc.,  Co.  V.  Stearns,  220  U.  S.  462,  55 
L.  Ed.  544,  31  S.  Ct.  452. 

"We  are  pointed  to  no  law  impairing 
the  obligation  of  the  contract.  The  stat- 
ute under  which  the  bonds  were  author- 
ized to  be  issued  is  not  such  a  law.  It  was 
passed  before  the  contract  was  made. 
The  breach  of  a  contract  is  neither  a  con- 
fiscation of  property  nor  a  taking  of  prop- 
erty without  due  process  of  law.  The 
case,  therefore,  comes  within  the  princi- 
ples announced  in  St.  Paul  Gas  Light  Co. 
V.  St.  Paul,  181  U.  S.  142,  145,  45  L.  Ed. 
788,  21  S.  Ct.  575."  Shawnee  Sewerage, 
etc.,  Co.  V.  Stearns,  220  U.  S.  462,  55  L. 
Ed.  544,  31  S.  Ct.  452. 

912-20a.  Ordinance  mere  order  for  pur- 
poses of  suit. — The  jurisdiction   of  a   fed- 


eral circuit  court  of  a  suit  by  a  street  rail- 
way company  to  enjoin  the  enforcement 
of  a  municipal  ordinance  as  impairing  con- 
tract rights  can  not  be  sustained  where 
such  ordinance,  after  reciting  that  ques- 
tions as  to  the  company's  rights  have  been 
raised,  orders  it  to  remove  its  tracks,  and 
directs  the  city  solicitor  to  take  action  to 
enforce  the  citj^'s  position,  since  such  di- 
rection must  contemplate  enforcement  by 
suit,  and  not  the  forcible  removal  of  the 
tracks.  Decree  (C.  C.  1907).  Des  Moines 
City  Ry.  Co.  v.  City  of  Des  Moines,  151 
F.  854,  reversed.  Des  Moines  v.  Des  Moi- 
nes, etc.,  Co.,  214  U.  S.  179,  5-3  L.  Ed.  958, 
29  S.  Ct.  553. 

913-22.  Exemption  from  taxation. — A 
case  arising  under  the  federal  constitution, 
of  which  a  federal  circuit  court  has  juris- 
diction without  diversity  of  citizenship,  is 
presented  by  a  bill  which  alleges  a  con- 
tract exemption  from  taxation  which  the 
state  is,  by  subsequent  legislation,  attempt- 
ing to  destroy.  Jetton  v.  University,  208 
U.  S.  489,  52  L.  Ed.  584,  28  S.  Ct.  375.  See 
post,  TAXATION. 

913-23.  Denial  of  due  process  of  law. — 
Ex  parte  Young.  209  U.  S.  123,  52  L.  Ed. 
714,  28  S.  Ct.  441. 

A  suit  against  the  governor  and  officers 
of  the  national  guard  because  of  imprison- 
ment for  2'/2  months  under  the  order  of  the 
governor,  made  in  good  faith  in  the  exer- 
cise of  his  power  to  suppress  an  insurrec- 
tion, is  not  within  the  original  jurisdiction 
of  a  federal  circuit  court  under  Rev.  St. 
U.  S.,  §  629  (U.  S.  Comp.  St.  1901,  p.  506), 
as  a  suit  brought  to  redress  the  depriva- 
tion of  any  right  secured  by  the  constitu- 
tion of  the  United  States.  Judgment  (C 
C.  1906),  148  F.  870,  affirmed.  Moyer  v. 
Peabody,  212  U.  S.  78,  53  L.  Ed.  410,  29  S. 
Ct.  235. 

The  claim  that  the  action  of  a  state 
board  of  equalization  in  making  an  assess- 
ment for  a  tax  pursuant  to  the  command 
of  a  writ  of  mandamus  was  the  action  of 
the  state,  and,  if  carried  out,  would  violate 
Const.  U.  S.  Amend.  14,  by  taking  prop- 
erty without  due  process  of  law,  and  de- 
nying the  equal  protection  of  the  laws, 
constitutes  a  federal  question  within  the 
original    jurisdiction    of    a    federal    circuit 


408 


Vol.  IV. 


COURTS. 


914 


Scope  of  Amendment. — The  provisions  of  the  fourteenth  amendment  are 
not  confined  to  the  action  of  the  state  through  its  legislature,  or  through  the  ex- 
ecutive or  judicial  authority.-^'' 

cc.  Denial  of  Equal  Protection  of  Lazes — See  note  2?. 


court.  Judgment,  Chicago  Union  Trac- 
tion Co.  T'.  State  Board  of  Equalization  (C. 
C.  1902),  114  F.  557;  Chicago  Consol.  Trac- 
tion Co.  V.  Same,  Id.;  South  Chicago  City 
Ry.  Co.  c'.  Baird,  Id.;  Chicago  Edison  Co. 
z\  Raymond,  Id.;  Chicago  City  Ry.  Co.  v. 
Same,  Id.;  People's  Gaslight  &  Coke  Co. 
v.  Same,  Id.;  Chicago  Telephone  Co.  v. 
Same,  Id.,  affirmed.  Raymond  v.  Chicago 
Union  Tract.  Co.,  207  U.  S.  20,  52  L.  Ed. 
78,  28  S.  Ct.  7;  Raymond  z'.  Chicago  Edi- 
son Co.,  207  U.  S.  42,  52  L.  Ed.  89,  28  S. 
Ct.   14. 

An  allegation  in  a  bill  that  a  municipal 
ordinance  providing  for  the  summary  sei- 
zure and  destruction  of  food  in  cold  stor- 
age when  unfit  for  human  consumption 
violates  Const.  U.  S.  Amend.  14,  because 
it  provides  neither  for  notice  nor  for  an 
opportunity  to  be  heard  before  such 
seizure  and  destruction,  presents,  although 
unfounded,  a  constitutional  question  within 
the  original  jurisdiction  of  the  federal  cir- 
cuit court.  Decree  (C.  C.  1907),  151  Fed. 
120,  modified.  North  American  Cold 
Storage  Co.  f.  Chicago,  211  U.  S.  306,  53 
L.   Ed.   195,   29   S.   Ct.    101. 

As  to  what  constitutes  due  process  of 
law,  see  post,  DUE  PROCESS  OF  LAW. 

914-24a.  Scope  of  amendment. — Ray- 
mond z'.  Chicago,  Union  Tract.  Co.,  207 
U.    S.   20.    35,    52    L.    Ed.    78,    28    S.    Ct.    7. 

"So  it  has  been  held  that,  whoever  by 
virtue  of  public  position  under  a  state 
government,  deprives  another  of  any  right 
protected  by  that  amendment  against  de- 
privation by  the  state,  violates  the  con- 
stitutional inhibition;  and  as  he  acts  in 
the  name  of  the  state  and  for  the  state, 
and  is  clothed  with  the  state's  powers,  his 
act  is  that  of  the  state."  Raymond  v.  Chi- 
cago Union  Tract  Co.,  207  U.  S.  20,  36, 
52  L.  Ed.  78,  28  S.  Ct.  7.  citing  Chicago, 
etc.,  R.  Co.  V.  Chicago,  166  U.  S.  226,  41 
L.   Ed.   979. 

"Following  the  above  case  the  federal 
courts  throughout  the  countrj^  have  fre- 
quently reviewed  the  action  of  taxing 
bodies,  when  under  the  facts  such  action 
was  in  effect  the  action  of  the  state,  and 
therefore  reviewable  by  the  federal  courts 
by  virtue  of  the  provisions  of  the  amend- 
ment in  question.  See  Nashville,  etc.,  Ry. 
Z-:  Taylor,  86  Fed.  Rep.  168;  Louisville 
Trust  Co.  V.  Stone.  107  Fed.  Rep.  305. 
which  related  to  enjoining  the  collection 
of  alleged  illegal  taxes  by  reason  of  dis- 
crimination." Raymond  z'.  Chicago,  etc.. 
Tract.  Co.,  207  U.  S.  20,  36,  52  L.  Ed.  78, 
28  S.  Ct.  7. 

Whether  or  not  the  enforcement  of  a 
state   statute   providing   for   the   establish- 


ment of  rates  for  railroad  transportation 
will  take  property  of  the  railroad  com- 
panies without  due  process  of  law  raises 
a  federal  question  within  the  jurisdiction 
of  a  circuit  court  of  the  United  States,  if 
the  requisite  amount  is  involved,  although 
its  determination  may  incidentally  involve 
a  question  of  fact.  Ex  parte  Young,  209 
U.  S.  123,  52  L.  Ed.  714,  28  S.  Ct.  441. 

Whether  or  not  a  railroad  company  is 
deprived  of  the  equal  protection  of  the 
laws,  and  its  property  rendered  liable  to 
be  taken  without  due  process  of  law,  by 
a  state  statute  providing  for  the  establish- 
ment of  rates  of  transportation,  because 
the  penalties  fixed  for  violation  of  the 
statute  are  so  enormous  as  to  require 
obedience  to  the  law  rather  than  risk  the 
penalties  in  testing  it,  although  such 
obedience  might,  in  the  end,  result  in  con- 
fiscation of  the  railroad  property,  is  a 
federal  question,  within  the  jurisdiction  of 
the  circuit  court  of  the  United  States. 
Ex  parte  Young,  209  U.  S.  123,  52  L.  Ed. 
714.    28    S.    Ct.   441. 

The  circuit  court  of  the  United  States 
has  jurisdiction  at  the  suit  of  stockholders 
of  a  railroad  company  to  enjoin  the  com- 
pany from  putting  in  force  transportation 
rates  established  by  a  state  statute,  which 
are  so  low  as  to  be  confiscatory  of  the 
company's  property,  and,  as  preliminary 
thereto,  to  institute  an  inquiry  as  to 
whether  or  not  the  rates  are  in  fact  too 
low.  Ex  parte  Young.  209  U.  S.  123,  52 
L.  Ed.  714,  28  S.  Ct.  4^41. 

Although  the  determination  of  whether 
a  railway  rate  prescribed  by  a  state  stat- 
ute is  so  low  as  to  be  confiscatory  involves 
a  question  of  fact,  its  solution  raises  a 
federal  question,  and  the  sufficiency  of 
rates  is  a  judicial  question  over  which  the 
proper  circuit  court  has  jurisdiction,  as 
one  arising  under  the  constitution  of  the 
United  States.  Ex  parte  Young,  209  L^ 
S.   123.   124.   52   L.   Ed.   714,   28    S.   Ct.  441. 

914-25.  Denial  of  equal  protection. — 
See  ante,  "Denial  of  Due  Process  of  Law." 
VII,  C,  4,  b,   (1),   (e),  bb. 

A  state  railroad  rate  statute  which  im- 
poses such  excessive  penalties  that  parties 
affected  are  deterred  from  testing  its  valid- 
ity in  the  courts  denies  the  carrier  the 
equal  protection  of  the  law  without  regard 
to  the  question  of  insufficiency  of  the  rates 
prescribed;  it  is  within  the  jurisdiction, 
and  is  the  duty,  of  the  circuit  court  to  in- 
quire whether  such  rates  are  so  low  as 
to  be  confiscatory,  and  if  so  to  perma- 
nenth^  enjoin  the  railroad  company,  at  the 
suit  of  one  of  its  stockholders,  from  put- 
ting   them    in    force,    and    it     has      power 


409 


914-915 


COURTS. 


Vol.  IV. 


dd.  Denial  of  Full  Faith  and  Credit  to  Acts,  Records,  etc.,  of  State. — See 
note  27.  The  provision  of  the  constitution  of  the  United  States,  which  requires 
a  judgment  in  any  state  to  be  given  full  faith  and  credit  in  the  courts  of  every 
other  state,  does  not  extend  the  jurisdiction  of  the  courts  of  one  state  to  prop- 
erty situated  in  another,  but  only  makes  the  judgment  rendered  conclusive  on 
the  merits  of  the  claim  or  subject  matter  of  the  suit.-'''  The  full  faith  and 
credit  clause  of  the  constitution  applies  with  no  more  effect  to  the  legislative  acts 
of  a  foreign  state  than  it  does  to  the  judgments  of  the  courts  of  such  states. 2^" 

(f)  Suits  Arising  -under  Federal  Lazvs — ee.  Copyright  Lazvs. — And  a  suit  to 
enjoin  the  sale  of  copyright  books,  not  based  on  rights  arising  under  the  copy- 
right law,  but  by  virue  of  an  agreement,  is  not  of  federal  jurisdiction,  there  be- 
ing no  diversity  of  citizenship.^-'^ 


pending  such  inquiry  to  grant  a  temporarj- 
injunction  to  the  same  efifect.  Ex  parte 
Young,  209  U.  S.  123,  124,  52  L.  Ed.  714, 
28  S.  Ct.  441.  See  ante,  CONSTITU- 
TIONAL LAW,  p.   264. 

914-27.  Denial  of  full  faith  and  credit 
to  acts,  records,  etc.,  of  state. — "The  fed- 
eral question  presented  is  whether  the 
Michigan  courts  gave  force  and  effect  to 
the  first  section  of  art.  4  of  the  federal 
constitution,  which  provides  that  'full 
faith  and  credit  shall  be  given  in  each 
state  to  the  public  acts,  records  and  ju- 
dicial proceedings  of  every  other  state.' 
That  this  is  a  federal  question  is  not  open 
to  doubt.  Huntington  v.  Attrill,  146  U. 
S.  657,  666,  36  L.  Ed.  1123,  13  S.  Ct.  224. 
and  cases  cited."  Brown  v.  Fletcher,  210 
U.  S.  82,  52  L.  Ed.  966,  28  S.  Ct.  702.  See 
ante,  CONSTITUTIONAL  LAW,  p. 
264;  post,  FOREIGN  JUDGMENTS, 
RECORDS  AN-D  JUDICIAL  PRO- 
CEEDINGS. 

Right  to  inquire  into  jurisdiction. — "The 
constitutional  provision  does  not  pre- 
clude the  courts  of  a  state  in  which  the 
judgment  of  a  sister  state  is  presented 
from  inquiry  as  to  the  jurisdiction  of  the 
court  by  which  the  judgment  was  ren- 
dered. See  the  elaborate  opinion  by  Mr. 
Justice  Bradley,  speaking  for  the  court,  in 
Thompson  v.  Whitman,  18  Wall.  457,  21 
L.  Ed.  897.  That  opinion  has  been  fol- 
lowed in  many  cases,  among  which  may  be 
named  Simmons  v.  Saul,  138  U.  S.  439, 
448,  34  L.  Ed.  1054,  11  S.  Ct.  369;  Rey- 
nolds V.  Stockton,  140  U.  S.  254,  265,  35 
L.  Ed.  464,  11  S.  Ct.  773;  Thormann  v. 
Frame.  176  U.  S.  350,  44  L.  Ed.  500,  20  S. 
Ct.  446."  Brown  v.  Fletcher,  210  U.  S. 
82.  52  L.   Ed.  966,  28   S.   Ct.  702. 

"Record  recitals  of  jurisdictional  facts 
do  not  preclude  oral  testimony  as  to  the 
existence  of  those  facts."  Brown  v. 
Fletcher,  210  U.  S.  82,  52  L.  Ed.  966,  28 
S.  Ct.  702,  citing  Knowles  v.  Gas  Light, 
etc.,  Co.,  19  Wall.  58,  61,  22  L.  Ed.  70; 
Pennoyer  v.  N'eff,  95  U.  S.  714,  730,  24 
L.  Ed.  565;  Cooper  v.  Newell,  173  U.  S. 
555.  5G6,  43  L.  Ed.  808,  19  S.  Ct.  506. 

Decree  as  affecting  property  beyond 
state. — "Every  state  has  exclusive  juris- 
diction over  the  property  within  its  bor- 


ders. Overby  :■.  Gordon,  177  U.  S.  214, 
44  L.  Ed.  741,  20  S.  Ct.  603.  We  make  this 
extract  from  the  opinion  of  Mr.  Justice 
White  in  that  case,  p.  222:  'To  quote  the 
language  of  Mr.  Chief  Justice  Marshall, 
in  Rose  v.  Himely,  4  Cranch  241,  277,  2 
L.  Ed.  60S:  "It  is  repugnant  to  every 
idea  of  a  proceeding  in  rem  to  act  against 
a  thing  which  is  not  in  the  power  of  the 
sovereign  under  whose  authority  the 
court  proceeds;  and  no  nation  will  adfnit 
that  its  property  should  be  absolutely 
changed,  while  remaining  in  its  own 
possession,  by  a  sentence  which  is  en- 
tirely ex  parte."'"  Brown  v.  Fletcher, 
210  U.   S.   82,  52   L.  Ed.  966,  28  S.   Ct.  702. 

"The  Massachusetts  court,  therefore, 
proceeded  without  any  personal  jurisdic- 
tion over  the  executors  and  legatees,  who 
were  all  domiciled  in  Michigan,  did  not 
appear,  and  were  not  validly  served  with 
process."  Brown  v.  Fletcher.  210  U.  S. 
82.  52  L.  Ed.  966,  28   S.   Ct.  702. 

"We  are  of  opinion  that  the  supreme 
court  of  Michigan  did  not  fail  to  give  'full 
faith  and  credit'  to  the  decree  of  the  Mass- 
achusetts supreme  court."  Brown  v. 
Fletcher,  210  U.  S.  82,  52  L.  Ed.  966,  28 
S.    Ct.   702. 

914-27a.  Extent  of  constitutional  amend- 
ment.—Olmsted  f.  Olmsted,  216  U.  S.  386, 
54    L.    Ed.    530,    30    S.    Ct.    292. 

The  courts  of  New  York  are  not  re- 
quired by  the  full  faith  and  credit  clause 
of  the  federal  constitution  to  give  effect 
to  a  Michigan  statute  legitimatizing  chil- 
dren born  prior  to  the  marriage  of  their 
parents,  so  as  to  control  the  devolution  of 
title  to  lands  in  New  York  under  a  will, 
especially  where  to  give  effect  to  such 
statute  would  disturb  interests  already 
vested  when  the  statute  was  enacted. 
Judgment,  83  N.  E.  569,  190  N.  Y.  458,  123 
Am.  St.  Rep.  585,  affirmed.  Olmsted  v. 
Olmsted,  216  U.  S.  386,  54  L.  Ed.  530,  30 
S.   Ct.  292. 

914-27b.  Applies  to  legislative  acts. — 
Olmsted  v.  Olmsted,  216  U.  S.  386,  54  L. 
Ed.   530,   30  S.   Ct.   292. 

915-32a.  Copyright  laws. — Whether  the 
owners  of  the  copyright  in  a  book  can 
have  relief  in  a  court  of  equity  by  virtue 
of  their   rights,   independent   of   statutory 


410 


Vol.  I\' 


COURTS. 


916 


ff.  Interstate  Coiniiierce  Act. — A  case  under  the  constitution  or  laws  of  the 
United  States  does  not  arise  against  a  railroad  engaged  in  interstate  commerce 
from  the  mere  fact.  It  only  arises  under  the  constitution,  or  laws  or  treaties  of 
the  United  States,  when  it  substantially  involves  a  controversy  as  to  the  effect 
or  construction  of  the  constitution  or  on  the  determination  of  which  the  result 
depends.-^-*^  It  is  immaterial  what  rights  the  complainant  would  have  had  before 
the  passage  of  the  interstate  commerce  law.  It  is  sufficient  that  congress,  in  the 
constitutional  exercise  of  power,  has  given  the  positive  sanction  of  federal  law 
to  the  rights  secured  in  the  statute,  and  any  case  involving  the  enforcement  of 
those  rights  is  a  case  arising  under  the  laws  of  the  United  States.^-*''  So  the 
damage  caused  by  the  failure  of  a  connecting  carrier  in  an  interstate  shipment 
to  deliver  the  goods  to  the  consignee,  for  which  failure  the  initial  carrier  is  made 
liable,  is  not  traceable  to  a  violation  of  the  statute,  redress  for  which  can  onlv 
be  had  in  the  interstate  commerce  commission  or  in  the  federal  courts.^^'^  But 
the  appointment  of  a  receiver  in  a  case  of  a  railroad  engaged  in  interstate  com- 
merce does  not  necessarily  involve  any  such  controversy. ^^^^ 

gg.  Patent  Laz^-s — (aa)  In  General. — See  note  35. 

(bb)   "Case"  Distingnislied  from  "Question." — See  note  Z6. 


copyright,  in  view  of  an  alleged  condi- 
tional sale,  is  a  question  which  the  fed- 
eral courts  can  not  consider  in  a  suit  to 
restrain  the  sale  of  the  book  at  retail  at 
less  than  the  fixed  price,  in  which  there  is 
no  claim  of  damages  in  the  sum  of  $2,000, 
and  no  diversity  of  citizenship.  Judgment 
(1906).  147  F.  28,  78  C.  C.  A.  122,  affirmed. 
Scribner  v.  Straus,  210  U.  S.  352,  52  L. 
Ed.  1094.  28  S.  Ct.  735.  See,  also,  ante, 
COPYRIGHT,  p.  377. 

916-34a.  Mere  fact  that  railroad  is  so 
engaged  is  insufficient, — In  re  ]Metropoli- 
tan  R.  Receivership,  208  U.  S.  90.  52  L. 
Ed.  403.  28  S.  Ct.  219,  citing  Defiance 
Water  Co.  v.  Defiance.  191  U.  S.  184,  48 
L.  Ed.  140;  Newburyport  Water  Co.  v. 
Xewburynort.  193  U.  S.  561,  48  L.  Ed.  799; 
Bonin  z:  Gulf  Co.,  198  U.  S.  115,  49  L.  Ed. 
970;  Devine  v.  Los  Angeles,  202  U.  S. 
313,  50  L.  Ed.  1046,  26  S.  Ct.  652. 

916-34b.  Rights  .arising  under  interstate 
commerce  act. — [Macon  Grocery  Co.  v.  At- 
lantic, etc.,  R.  Co.,  215  U.  S.  501,  54  L.  Ed. 
300,  30  S.  Ct.  184,  citing  Toledo,  A.  A.  & 
N.  M.-  R.  Co.  V.  Pennsylvania  Co.,  19  L.  R. 
A.  387,  5  Inters.  Com.  Rep.  522,  54  Fed. 
730. 

916-34C.  Damage  for  failure  of  connect- 
ing carrier  to  deliver. — Galveston,  etc.,  R. 
Co.  V.  Wallace,  223  U.  S.  481,  56  L.  Ed. 
516,  32  S.   Ct.  205. 

A  state  court  may  enforce  the  liability 
of  an  initial  carrier  of  an  interstate  ship- 
ment, arising  under  the  Carmack  amend- 
ment of  June  29,  1906,  to  the  Interstate 
Commerce  Act  of  February  4,  1887,  by 
which  such  carrier  is  made  liable  for  a 
loss  beyond  its  own  line.  Galveston,  etc., 
R.  Co.  V.  Wallace,  223  U.  S.  481,  56  L.  Ed. 
516,   32    S.    Ct.   205. 

"It  was  contended  that  Texas,  etc.,  R. 
Co.  V.  Abilene  Cotton  Oil  Co.,  204  U.  S. 
426,  51  L.  Ed.  553,  27  S.  Ct.  350,  ruled  that 
this  jurisdiction  was  exclusive,  and   from 


that  it  was  argued  that  no  suit  could  be 
maintained  in  a  state  court  on  any  cause 
of  action  created  either  by  the  original 
act  of  1887  or  by  the  amendment  of  1906. 
But  damage  caused  by  failure  to  deliver 
goods  is  in  no  way  traceable  to  a  violation 
of  the  statute,  and  is  not,  therefore,  within 
the  provisions  of  §§  8  and  9  of  the  act  to 
regulate  commerce."  Galveston,  etc.,  R. 
Co.  57.  Wallace.  223  U.  S.  481,  56  L.  Ed. 
516,  32  S.  Ct.  205,  citing  Atlantic,  etc.,  R. 
Co.  V.  Riverside  ]\Iills,  219  U.  S.  186,  208, 
55    L.    Ed.    167,    31    S.    Ct.    164. 

916-34d.  Appointment  of  receiver. — In 
re  ]\Ietropolitan  R.  Receivershio,  208  U. 
S.  90,  109,  52  L.  Ed.  403,  28  S.  Ct'.  219.  See 
post,  RECEIVERS. 

"Jurisdiction  to  appoint  a  receiver  by  a 
circuit  court  of  the  United  States  in  cases 
of  railroads  engaged  in  interstate  com- 
merce has  existed  by  reason  of  diversity 
of  citizenship  in  the  various  cases  be- 
tween the  parties  to  the  litigation,  and  not 
because  the  railroads  were  engaged  in  in- 
terstate commerce.  The  necessary  di- 
versity of  citizenship  is  alleged  to  exist 
in  the  case  before  the  circuit  court,  and 
there  is  no  suspicion  as  to  the  truth  of 
the  averment."  In  re  ^letropolitan  R. 
Receivership,  208  U.  S.  90,  109,  52  L.  Ed. 
403,  28    S.   Ct.   219. 

916-35:  Suits  arising  under  patent  laws. 
— New  Marshall  Engine  Co.  v.  Marshall 
Engine  Co.,  223  U.  S.  473,  56  L.  Ed.  513, 
-2   S.   Ct.  238. 

916-36.  "Case"  distinguished  from  "ques- 
tion."— "The  federal  courts  have  exclusive 
jurisdiction  of  all  cases  arising  under  the 
patent  laws,  but  not  of  all  questions  in 
which  a  patent  may  be  the  subject  matter 
of  the  controversy."  New  Marshall  En- 
gine Co.  V.  Marshall  Engine  Co.,  223  U. 
S.  473,  56  L.  Ed.  513,  32  S.  Ct.  238.  See 
post.  PATENTS. 

Questions  of  title — Construction  and 
enforcement  of   contract. — "Courts    of     a 


411 


916 


COURTS. 


Vol.  IV. 


(cc)  What  Cases  Arise  under  Patent  Laivs — aaa.  In  General. — See  note  37. 
Cases  determinable  upon  principles  of  general  law,  and  not  setting  up  some 
right  of  title  or  interest  solely  under  the  patent  laws,  is  not  one  of  federal  juris- 
diction.^''''    The  supreme  court  of  the  United  States  will  not  refrain  from  rul- 


state  may  try  questions  of  title,  and  may 
construe  and  enforce  contracts  relating 
ito  patents."  New  Marshall  Engine  Co.  r. 
Marshall  Engine  Co.,  223  U.  S.  473,  56  h. 
Ed.  513,  32  S.  Ct.  238,  citing  Wade  v. 
Lawder,  165  U.  S.  624,  41  L.  Ed.  851.  17 
S.    Ct.   425. 

Suit  to  compel  assignment  of  patent. — 
A  suit  by  the  assignee  of  a  patent,  to 
compel  the  assignor  and  his  assignee  of  a 
later  patent,  which,  on  the  face  of  the  ap- 
plication and  letters  patent,  appears  to  be 
for  an  improvement,  to  assign  the  patent 
lor  such  improvement  to  complainant,  in 
compliance  with  a  covenant  for  further 
assurance,  is  within  the  jurisdiction  of  a 
state  court,  although  the  bill  also  asks  for 
an  injunction  against  the  sale  or  manu- 
facture of  machines  covered  by  such  later 
patent,  where  such  injunction  was  only 
prayed  as  an  incident  of  a  finding  that  the 
title  was  vested  in  the  complainant.  New 
Marshall  Engine  Co.  v.  Marshall  Engine 
Co.,  223  U.  S.  473.  56  L.  Ed.  513,  32  S.  Ct. 
238. 

916-37.  What  cases  arise  under  patent 
laws. — "The  test  of  jurisdiction  is  this: 
Does  the  complainant  'set  up  some  right, 
title,  or  interest  under  the  patent  laws  of 
the  United  States,  or  make  it  appear  that 
some  right  or  privilege  will  be  defeated 
by  one  construction,  or  sustained  by  an- 
other, of  those  laws?'"  Henry  v.  Dick 
Co.,  224  U.  S.  1.  56  L.  Ed.  645,  32  S.  Ct. 
364.  citing  Excelsior,  etc..  Pipe  Co.  :•. 
Pacific  Bridge  Co.,  185  U.  S.  282,  46  E. 
Ed.  910,  22  S.  Ct.  681;  Pratt  z:  Paris  Gas 
Light,  etc.,  Co.,  168  U.  S.  255,  259,  42  L. 
Ed.  458.  18  S.  Ct.  62;  White  v.  Rankin. 
144  U.  S.  628,  36  L.  Ed.  569,  12  S.  Ct.  768. 
See  post,  PATENTS. 

Whether  a  patentee  selling  a  Rotary 
mimeograph  under  a  license  restriction 
that  it  shall  be  used  only  with  stencil  pa- 
per, ink,  and  other  supplies  made  by  the 
patentee,  none  of  which  are  patented 
thereby  reserves  to  himself  as  patentee 
the  exclusive  right  to  all  unpermitted 
uses  which  may  be  made  of  his  invention 
as  embodied  in  the  machine  sold,  is  a 
question  arising  under  the  patent  laws, 
of  which  a  federal  court  has  jurisdiction. 
Henry  v.  Dick  Co.,  224  U.  S.  1,  56  L.  Ed. 
645,  32   S.   Ct.  364. 

An  action  by  the  patentee  of  a  Rotary 
mimeograph  sold  under  a  license  restric- 
tion that  such  machine  should  be  used 
only  with  the  stencil  paper,  ink,  and  other 
supplies  made  by  the  patentee,  none  of 
which  are  patented,  against  one  selling 
ink  to  the  purchaser  with  the  expectation 
that  it  would  be  used  in  connection  with 
such    mimeograph,    is    one    arising    under 


the  patent  laws,  of  which  a  federal  court 
has  jurisdiction.  Henry  z\  Dick  Co.,  224 
U.  S.  1,  56  L.   Ed.  645,  32   S.  Ct.  364. 

An  agreement  arising  from  the  purchase 
of  a  Rotary  mimeograph  subject  to  a 
license  restriction  that  the  inachine  may 
be  used  only  with  the  stencil  paper,  ink, 
and  other  supplies  made  by  the  patentee, 
none  of  which  are  patented,  is  not  col- 
lateral, so  as  to  make  its  validity  depend- 
ent on  principles  of  general  law,  of  which 
a  federal  court  will  have  no  jurisdiction. 
Henry  r.  Dick  Co.,  224  U.  S.  1,  56  L.  Ed. 
645,  32   S.    Ct.   364. 

916-37a,  Cases  determinable  upon  prin- 
ciples of  general  law. — "To  sustain  the 
contention  that  a  breach  of  the  implied 
agreement  not  to  use  the  machine  in 
question  except  in  a  particular  way  might 
have  supported  a  suit  to  forfeit  the  li- 
cense, or  an  action  for  damages  upon  the 
broken  contract,  counsel  have  cited  and 
commented  at  great  length  upon  the 
cases  of  Wilson  v.  Sanford,  10  How.  99, 
13  L.  Ed.  344;  Dale  Tile  Mfg.  Co.  v.  Hyatt, 
125  U.  S.  46,  31  L.  Ed.  683,  8  S.  Ct.  756; 
Albright  z:  Teas,  106  U.  S.  613,  27  L.  Ed. 
295,  1  S.  Ct.  550;  Hartell  v.  Tilghman,  99 
U.  S. -547,  25  L.  Ed.  357;  Pratt  v.  Paris 
Gas  Light,  etc.,  Co.,  168  U.  S.  255,  42  L. 
Ed.  458,  18  S.  Ct.  62;  Keeler  v.  Standard 
Folding  Bed  Co.,  157  U.  S.  659,  39  L.  Ed. 
848,  15  S.  Ct.  738;  and  Bement  v.  National 
Harrow  Co.,"  186  U.  S.  70,  46  L.  Ed.  1058, 
22  S.  Ct.  747;  but  an  examination  of 
these  cases  will  disclose  that  while  in 
some  of  them  a  suit  for  infringement 
might  have  been  brought,  the  complain- 
ants had  in  fact  brought  suits  to  set  aside 
or  enforce  contracts  relating  to  patents, 
or  licenses  under  patents.  They  were 
therefore  not  'patent  cases,'  but  cases  de- 
terminable upon  principles  of  general  law. 
In  Excelsior,  etc..  Pipe  Co.  v.  Pacific 
Bridge  Co.,  185  U.  S.  282,  46  L.  Ed.  910, 
22  S.  Ct.  681;  Mr.  Justice  Brown  reviews 
the  cases  and  shows  so  plainly  why  they 
were  not  patent  cases  that  we  shall  only 
refer  to  that  opinion."'  Henry  v.  Dick 
Co.,  224  U.  S.  1,  56  L.  Ed.  645.  32  S.  Ct. 
364. 

A  suit  by  the  owner  of  a  patent  to 
make  the  directors  of  a  corporation  an- 
swerable for  a  judgment  previously  re- 
covered against  it  for  infringing  the 
patent  is  not  within  the  original  jurisdic- 
tion of  a  federal  circuit  court  unless  there 
is  diversity  of  citizenship,  since  the  suit  is 
neither  one  upon  the  patent  nor  one 
ancillary  to  the  judgment  in  the  former 
suit.  Cook  Co.  v.  Beecher,  217  U.  S.  497, 
54  L.  Ed.  855,  30  S.  Ct.  601.  affirming 
judgment    (C.   C.   1909),   172   F.   166. 


412 


\'ol.  IV 


COURTS. 


916-927 


ing  that  a  patentee  may  sell  a  patented  machine  subject  to  restrictions  as  to  its 
use,  and  predicate  infringement  on  a  use  in  violation  of  such  restrictions,  on  the 
ground  that  such  a  ruling  might  draw  to  the  federal  courts  cases  which  other- 
wise would  not  come  to  them.-^'"' 

Remedy  as  Determining  Jurisdiction. — The  remedy  which  the  complain- 
ant seeks  may  often  determine  whether  the  suit  is  one  arising  under  the  patent 
law,  and  cognizable  only  in  a  court  of  the  United  States,  or  one  upon  a  con- 
tract between  the  patentee  and  his  assigns  or  licensees,  and  therefore  cognizable 
only  in  a  state  court,  unless  there  be  diversity  of  citizenship. ^''^ 

jj.  Trademark  Lazes. — A  federal  circuit  court  has  jurisdiction  of  a  contro- 
versy between  foreign  subjects  and  a  domestic  corporation  in  which  the  bill  as- 
serts a  right  under  a  federal  statute  by  virtue  of  the  registration  of  a  trade- 
mark.'^ ^^ 

(g)  Suits  by  or  agaitist  Xatio)ial  Banks — bb.  Rule  under  Act  of  1882. — See 
note  69. 

(i)  Suits  icith  Respect  to  Land  Grants  or  Patents — aa.  Title  Deriz'ed  from 
Patent  or  Act  of  Congress — (  aa  )  Assertion  of  Title  under  Patent. — See  note  80. 


916-37b.  Decision  drawing  cases  to  fed- 
eral courts. — Henry  z\  Dick  Co..  224  U. 
S.    1.   56    L.    Ed.   64.5.   .32    S.    Ct.    364. 

916-37C.  Remedy  as  determining  juris- 
diction.—Henry  :■.  Dick  Co.,  224  U.  S.  1, 
56  L.   Ed.  645,  "32   S.   Ct.  364. 

"Thus,  a  bill  to  enforce  a  contract  con- 
cerning the  title  to  a  patent,  or  an  in- 
terest therein,  or  to  declare  a  forfeiture 
of  an  assignment  of  an  interest  in  a  pat- 
ent, or  even  a  license,  to  make,  sell,  or 
use  the  patented  thing,  or  an  action  to 
recover  damages  for  a  breach  of  a  con- 
tract relating  to  a  patent  or  a  license 
thereunder,  would  not  because  of  the 
character  of  remedy  or  relief  sought,  be  a 
suit  cognizable  in  a  United  States  court, 
although  the  facts  stated  might  have  justi- 
fied a  suit  for  infringement  in  a  United 
States  court,  if  the  complainant  had  elected 
that  remedy."  Henry  v.  Dick  Co.,  224  U. 
S.  1.   56   U   Ed.  645,  32   S.  Ct.  364. 

"That  the  patentee  may  waive  the  tort 
and  sue  upon  the  broken  contract,  or  jn 
assumpsit,  is  elementary.  Robinson. 
Patents,  §§  1225.  1250,  and  notes;  Steam 
Stone  Cutter  Co.  v.  Sheldon,  21  Blatchf. 
260,  15  Fed.  60S;  Pope  Mfg.  Co.  v.  Owsley, 
27  Fed.  100;  Button-Fastner  Case,  35  L. 
R.  A.  728,  25  C.  C.  A.  267,  47  U.  S.  App. 
146,  77  Fed.  288,  291;  Wilson  f.  Sanford, 
10  How.  99,  13  L.  Ed.  344.  But  if  the 
patentee  elect  to  waive  the  tort,  and  sue 
upon  the  covenants,  or  for  a  breach  of 
contract,  the  suit  would  not  be  one  de- 
pendent upon  or  arising  out  of  the  patent 
law,  and  a  federal  court  would  have  no 
jurisdiction  unless  diversity  of  citizenship 
existed.  Robinson,  Patents,  §  1250;  ^lagic 
Ruffle  Co.  V.  Elm  City  Co.,  13  Blatchf. 
151,  Fed.  Cas.  No.  8,949;  Goodyear, 
V.  Union  India  Rubber  Co.,  4  Blatchf. 
63.  Fed.  Cas.  No.  5,586:  Goodyear 
V.  Congress  Rubber  Co.,  3  Blatchf.  449, 
Fed.  Cas.  No.  5.565.  This  would  be  so 
although  the  damages  for  a  breach  would 


be  measured  by  the  loss  resulting  from 
the  infringement.  Magic  Ruffle  Co.  z-. 
Elm  Citv  Co..  13  Blatchf.  151,  Fed.  Cas. 
Xo.  8,949."  Henry  v.  Dick  Co.,  224  U.  S. 
1,  50  L.  Ed.  645.  32  S.  Ct.  364.  See  post, 
PATENTS. 

923-65a.  Suits  in  regard  to  trademarks. 
— Baglin  v.  Cusenier  Co.,  221  U.  S.  580,  55 
L.  Ed.  863,  31  S.  Ct.  669,  reversing  164 
Fed.  265,  90  C.  C.  A.  499.  See  post, 
TRADEMARKS.  TRADENAMES  AND 
UNFAIR   CO^IPETITION. 

925-69.  Under  Act  of  July  12,  1882.— 
"Act  July  12,  1882.  c.  290,  §  4,  22  Stat.  163 
(U.  S.  Comp.  St.  1901,  p.  .'i458).  which 
provides  that  jurisdiction  for  suits  by  or 
against  national  banks  shall  be  the  same 
as  for  suits  by  or  against  banks  not  na- 
tional doing  business  in  the  same  place, 
deprives  the  federal  courts  of  jurisdiction 
of  suits  by  or  against  national  banks  by 
reason  of  their  national  incorporation, 
leaving  such  jurisdiction  dependent  on 
diversity  of  citizenship  alone,  unless  a  fed- 
eral question  is  otherwise  involved;  and 
under  Act  March  3,  1887,  c.  373.  §  4,  24 
Stat.  554.  as  amended  by  Act  Aug.  13. 
1888.  c.  866.  25  Stat.  436  (U.  S.  Comp.  St. 
1901,  p.  514),  which  makes  the  citizenship 
of  such  banks  for  jurisdictional  purjjoses 
dependent  upon  their  location,  a  federal 
court  in  a  state  is  without  jurisdiction  of 
a  suit  by  a  national  bank  of  the  District 
of  Columbia  against  a  citizen  of  such 
state  on  the  ground  of  diversity  of  citizen- 
ship. American  Nat.  Bank  of  Washing- 
ton r.  Tappan.  174   Fed.   Rep.  431. 

927-80.  Assertion  of  title  under  patent. 
— Full  faith  and  credit  demanded  by  Rev. 
St.  U.  S.,  §  906  (U.  S.  Comp.  St.  1901,  p. 
677),  is  not  given  to  Act  N.  M.  March  11, 
1903  (Laws  1903,  p.  51,  c.  33),  governing 
actions  for  personal  injuries  received  in 
that  territory,  where  a  recovery  is  per- 
mitted in  a  state  court  on  such  a  cause  of 
action,   with   no   showing  of  a   compliance 


41J 


928-944 


COURTS. 


Vol.  IV. 


bb.  Assertion  of  Title  under  Act  of  Congress. — A  suit  involving  rights  to  land 
acquired  under  a  law  of  the  United  States  does  not  arise  under  that  law  for  ju- 
risdictional purposes  unless  it  really  and  substantially  involves  a  dispute  or  con- 
troversy respecting  the  validity,  construction  or  effect  of  such  law,  upon  the  de- 
termination of  which  the  result  depends. ^^^^ 

(2)  Suits  betzveen  Citizens  of  Different  States — (a)  General  Rules — aa.  Con- 
stitutional and  Statutory  Provisions. — Diversity  of  Citizenship  is  a  condition 
of  jurisdiction. ^^^'^ 

dd.  What  Constitutes  a  Controversy. — An  unsatisfied,  justiciable  claim  of 
some  right  involving  the  jurisdictional  amount  made  by  a  citizen  of  one  state 
against  a  citizen  of  another  state  is  a  controversy  or  dispute  between  the  par- 
ties within  the  statutes,  and  such  jurisdiction  does  not  depend  upon  the  denial 
by  the  defendant  of  the  existence  of  the  claim  or  of  its  amount  or  validity.^"^ 
Where  the  defendant  is  engaged  in  interstate  commerce  the  jurisdiction  of  the 
circuit  court  in  the  appointment  of  receivers  exists  by  reason  of  diversity  of 
citizenship  and  not  merely  because  the  defendants  were  engaged  in  interstate 
commerce. ^*^'^ 

(c)  Citizenship  of  Real  Parties  in  Interest  as  Controlling — cc.  Arrangement 
of  Parties  According  to  Interest. — See  note  41. 


with  the  preliminaries  of  notice  and  de- 
mand prescribed  by  the  territorial  statute. 
Judgment,  Gutierrez  v.  El  Paso  &  N.  E. 
R.  Co.  (Tex.),  117  S.  W.  426,  affirmed. 
El  Paso,  etc.,  R.  Co.  v.  Gutierrez,  215  U. 
S.  87,  54  L.  Ed.  106,  30  S.  Ct.  21. 

928-81a.  Assertion  of  title  under  act  of 
congress. — Shulthis  v.  McDougal,  225  U. 
S.   561,   56   L.    Ed.   1205,   32   S.   Ct.   704. 

936-16a.  Condition  of  jurisdiction. — 
Matter  of  Moore,  209  U.  S.  490,  52  L.  Ed. 
904,  28  S.  Ct.  585,  706,  citing  Interior 
Constr.,  etc.,  Co.  v.  Gibney.  160  U.  S.  217, 
219,  40  L.  Ed.  401,  16  S.   Ct.  272. 

838-20a.  What  constitutes  a  contro- 
versy.— In  re  Metropolitan  R.  Receiver- 
ship, 208  U.  S.  90,  52  L.  Ed.  403,  28  S.  Ct. 
219. 

A  suit  by  Pennsylvania  and  New  Jersej^ 
corporations  against  a  New  York  corpora- 
tion operating  a  street  railway  system  in 
the  city  of  New  York,  the  bill  in  which 
avers  an  unsatisfied  indebtedness  due 
each  compiainant  from  the  defendant, 
substantially  involves  a  controversy  be- 
tween citizens  of  different  states  within 
the  meaning  of  Act  Aug.  13,  1888,  c.  866, 
§  1,  25  Stat.  433  [U.  S.  Comp.  St.  1901,  pp. 
507,  508],  defining  the  jurisdiction  of  the 
federal  circuit  courts,  although  the  de- 
fendant admits  the  indebtedness  and  the 
other  allegations  of  the  bill,  and  joins 
with  the  complainants  in  a  request  that 
receivers  be  appointed.  In  re  Metropoli- 
tan R.  Receivership,  208  U.  S.  90,  52  L. 
Ed.  403,  28  S.  Ct.  219. 

In  this  case  there  being  such  a  claim, 
and  the  requisite  diversity  of  citizenship, 
the  circuit  court  had  jurisdiction  al- 
though the  defendant  admitted  the  facts 
and  liability,  waived  the  objection  that 
the  complainants  were  not  entitled  to 
equitable  relief,  and  joined  in  the  request 
for     appointment    of    receivers.       In     re 


Metropolitan  R.  Receivership,  208  U.  S. 
90,  52  L.   Ed.  403,  28   S.  Ct.  219. 

'"The  cases  are  numerous  in  which  judg- 
ments have  been  entered  by  consent  or 
default  where  the  other  requisites  to  the 
jurisdiction  of  the  federal  court  existed. 
Hefner  v.  Northwestern  Life  Ins.  Co.,  123 
U.  S.  747,  756,  31  L.  Ed.  309,  8  S.  Ct.  337; 
Pacific  Railroad  v.  Ketchum,  101  U.  S. 
289,  290,  25  L.  Ed.  932.  In  the  latter  case 
the  proceeding  was  'by  the  consent  of  all 
the  parties  to  the  suit  through  their  so- 
licitors of  record.'  It  was  stated  in  the 
opinion  by  Chief  Justice  Waite  that  the 
defendant  had  filed  an  answer  under  its 
corporate  seal,  in  which  every  material 
allegation  of  the  bill  was  confessed,  and 
it  was  stated  that  the  bonds  sued  for  were 
in  all  respects  valid  obligations  of  the 
company,  and  the  mortgage  a  subsisting 
lien.  No  doubt  was  expressed  as  to  the 
jiyisdiction  of  the  court,  because  of  the 
admission  of  the  facts  by  the  defendant 
and  its  consent  to  the  judgment."  In  re 
Metropolitan  R.  Receivership,  208  U.  S. 
90,  108,   52  L.   Ed.   403,  28   S.    Ct.   219. 

938-20b.  Jurisdiction  in  receiver  cases. 
— In  re  Metropolitan  R.  Receivership,  208 
U.  S.  90,  52  L.  Ed.  403,  28  S.  Ct.  219.  See 
post,  RECEIVERS. 

944-41.  Arrangement  according  to  in- 
terest.— Doctor  V.  Harrington,  196  U.  S. 
579,  49  L.  Ed.  606;  Venner  v.  Great  North- 
ern R.  Co.,  209  U.  S.  24,  52  L.  Ed.  666,  28 
S.    Ct.   328- 

"It  was,  undoubtedly,  the  duty  of  the 
court  in  determining  whether  there  was 
the  requisite  diversity  of  citizenship,  to 
arrange  the  parties  with  respect  to  the 
actual  controversy,  looking  beyond  the 
formal  arrangement  made  by  the  bill.  Re- 
moval Cases,  100  U.  S.  457,  25  L.  Ed. 
593;  Detroit  v.  Dean,  106  U.  S.  537,  27  L. 
Ed.  300,  1  S.  Ct.  560;  Dawson  v.  Columbia, 


414 


\'ol.  IV 


COURTS. 


948-949 


(g)  Change  of  Domicile  or  Citizenship  before  Suit — aa.  Real  and  Bona  Fide 
Change — (  aaj  In  General. — See  note  49. 

(bb)  Change  for  Purpose  of  Giving  Federal  Courts  Jurisdiction. — See  note  50. 

bb.  Fraudulent  or  Fictitious  Change — (aa)  By  Natural  Person. — The  acqui- 
sition of  such  citizenship  must  be  with  the  purpose  to  estabhsh  a  permanent 
domicil  in  the  state  of  which  he  professes  to  be  a  citizen  at  the  time  of  suit,  and 
not  fictitious  or  pretended. ^^'^ 

(bb)  Fraudulent  Incorporation. — See  note  52. 


etc.,  Trust  Co.,  197  U.  S.  178,  49  L.  Ed. 
713,  25  S.  Ct.  420;  Steele  v.  Culver.  211  U. 
S.  26,  53  L.  Ed.  74,  29  S.  Ct.  9."  Helm  v. 
Zarecor,  222  U.  S.  32,  56  L.  Ed.  77,  32  S. 
Ct.   10. 

The  corporate  defendant  and  the  com- 
plaining stockholder  will  not  be  aligned 
on  the  same  side  of  the  controversy  for 
the  purpose  of  determining  the  jurisdic- 
tion of  a  federal  circuit  court,  invoked  on 
the  ground  of  diverse  citizenship,  be- 
cause it  may  be  for  the  financial  interests 
of  the  corporation  that  the  suit  shall  suc- 
ceed, where  the  corporation  unites  with 
the  other  defendant  in  resisting  the  claim 
of  illegality  and  fraud,  and  both  are  al- 
leged to  have  engaged  in  the  same  illegal 
and  fraudulent  conduct,  and  the  injury  is 
alleged  to  have  been  accomplished  by 
their  joint  action.  Venner  v.  Great  North- 
ern R.  Co.,  209  U.  S.  24,  52  L.  Ed.  666,  28 
S.   Ct.  328. 

The  trustees  holding  the  legal  title  to 
church  property  need  not,  when  testing 
the  jurisdiction  of  a  federal  circuit  court, 
invoked  on  the  ground  of  diversity  of 
citizenship,  be  aligned  on  the  side  of 
complainants  in  a  controversy  between 
two  religious  societies  over  the  right  to 
control  the  church  property,  growing  out 
of  proceedings  to  consolidate  the  Cum- 
berland Presbj'terian  church  with  the 
Presbyterian  church  in  the  United  States 
of  America,  but,  as  mere  title  holders, 
such  trustees  are  properly  made  parties 
defendant.  Sharpe  v.  Bonham,  224  U.  S. 
241,  56  L.  Ed.   747,  32  S.   Ct.  420. 

Neither  the  attitude  of  the  alleged  mem- 
bers of  the  board  of  publication  of  the 
Cumberland  church,  incorporated  merely 
as  a  convenient  agency  for  the  publishing 
work  of  such  church,  who  believed  the  al- 
leged union  with  the  Presbyterian  church 
to  have  been  consummated,  nor  the  fact 
that  it  does  not  appear  that  such  mem- 
bers have  surrendered  possession,  re- 
quires that,  when  testing  the  jurisdiction 
of  a  federal  circuit  court,  invoked  on  the 
ground  of  diversity  of  citizenship,  such 
corporation  be  aligned  on  the  side  of  com- 
plainants in  a  suit  to  enforce  the  alleged 
rights  of  the  members  of  the  United 
church  to  use  and  control  the  corporate 
agency  and  to  have  the  benefit  of  the  cor- 
porate property  in  its  denominational 
work,  as  against  defendants  who  repudiate 
the   alleged  union,   and   insist  that   the   re- 


ligious association  which  they  represent 
is  still  the  original  Cumberland  church, 
continuing  with  all  its  separate  powers 
unimpaired.  Helm  v.  Zarecor,  222  U.  S. 
S2,  56  L.   Ed.  77,  32  S.  Ct.  10. 

948-49.  Real  and  bona  fide  change. — 
:\Iiller  z\  East  Side  Canal,  etc.,  Co.,  211 
U.    S.    293,    53    L.    Ed.    189.   29    S.    Ct.    111. 

948-50.  Change  for  purpose  of  giving 
federal  court  jurisdiction. — The  jurisdic- 
tion of  a  circuit  court,  when  based  on  di- 
verse citizenship,  can  not  be  questioned 
upon  the  ground  merely  that  a  partj^'s  mo- 
tive in  acquiring  citizenship  in  the  state 
in  which  he  sues  was  to  invoke  the  juris- 
diction of  a  federal  court.  Miller  v.  East 
Side  Canal,  etc.,  Co.,  211  U.  S.  293.  53  L. 
Ed.  189,  29  S.  Ct.  111. 

948-51a.  Purpose  to  establish  perma- 
nent domicile. — ^filler  r.  East  Side  Canal, 
etc..  Co..  211  U.  S.  293,  53  L.  Ed.  189,  29 
S.  Ct  111. 

"If  the  removal  be  for  the  purpose  of 
commiting  a  fraud  upon  the  law.  and  to 
enable  the  party  to  avail  himself  of  the 
jurisdiction  of  the  federal  courts,  and  that 
fact  be  made  out  by  his  acts,  the  court 
must  pronounce  that  his  removal  was  not 
with  a  bona  fide  intention  of  changing  his 
domicile,  however  frequent  and  public  his 
declarations  to  the  contrary  maj'  have 
been."  ^filler  v.  East  Side  C?nal,  etc..  Co.. 
211  U.  S.  293.  53  L.  Ed.  189.  29  S.  Ct.  111. 

949-52.  Fraudulent  incorporation. — In- 
corporation in  Nevada  by  direction  of  a 
California  corporation,  for  the  sole  pur- 
pose of  having  the  matters  in  dispute  be- 
tween such  California  corporation  and 
another  corporation  of  that  state  deter- 
mined in  a  federal  rather  than  in  the  state 
court,  where  they  were  pending  and  un- 
determined must  be  regarded  as  an  at- 
tempt collusively  to  make  a  partj^  plaintiff 
simply  for  the  purpose  of  creating  a  case 
cognizable  by  the  federal  court,  which 
under  Act  March  3,  1875,  c.  137.  §  5.  18 
Stat.  472  (U.  S.  Comp.  St.  1901,  pp.  508, 
511),  requires  the  dismissal  of  the  suit, 
where  the  new  corporation  assumes  to  be 
the  owner  of  the  property  rights  which 
the  old  company  had  asserted  only  that 
it  may  have  a  standing  in  the  federal  court 
as  a  litigant  in  respect  of  those  rights,  and 
the  old  corporation  can  control  the  con- 
duct of  the  suit  brought  by  the  new  cor- 
poration at  anj'  time  up  to  the  date  of 
the  decree,  and  can   require  the  new  cor- 


415 


950-956 


COURTS. 


Vol.  IV, 


(h)  Suits  b\  or  against  Artificiiil  Bodies — aa.  Corporations — (aa)  General 
Rules  as  to  Siuts  by  or  against  Corporations — bbb.  Present  Rule. — See   note  56. 

(cc)  Corporation  Created  by  One  State  and  Doing  Business  in  Another — 
ccc.  Corporation  Domesticated  by  Filing  Articles,  etc. — See  note  64. 

ddd.  Actuallx  Reincorporation  under  Laii-s  of  Second  State — (aaa)  In  General. 
— A  corporation  incorporated  simultaneously  in  several  states  exists  in 
each  state  by  virtue  of  the  laws  of  that  state  and  when  it  incurs  a  liability  under 
the  laws  of  one  of  the  states  in  which  it  is  incorporated  and  is  sued  therein  it 
can  not  escape  the  jurisdiction  thereof  and  remove  to  the  federal  court  on  the 
ground  that,  as  it  is  also  incorporated  in  the  other  states,  it  is  not  a  citizen  of 
that  State.^*^'^ 

fff.  Suits  by  Stockholders  on  Behalf  of  Corporation. — The  subject  of  suits  in 
federal  courts  by  stockholders  on  behalf  of  the  corporation,  on  the  ground  of 
diverse  citizenship  of  the  parties  and  the  operation  and  efifect  of  the  94th  equity 
rule  of  practice  of  the  United  States  Courts,  in  such  cases,  is  treated  in  an- 
other title.<^9a 

( dd )  Effect  of  Admission  of  State. — A  corporation  originally  incorporated 
in  the  Indian  Territory  under  the  Arkansas  statutes  which   were  put   in   force 


poration,  in  the  event  of  a  decree  in  its 
favor,  to  transfer  the  benefit  of  such  de- 
cree to  the  old  corporation  without  any 
new  or  valuable  consideration.  Miller  7'. 
East  Side  Canal,  etc.,  Co.,  211  U.  S.  293, 
53  L.   Ed.   189,  29  S.   Ct.   111. 

An  action  brought  by  a  South  Dakota 
corporation  against  a  citizen  of  Georgia, 
in  a  federal  circuit  court  sitting  in  the 
latter  state,  will  be  dismissed  under  Act 
March  3,  1875,  c.  137,  §  1,  18  Stat.  470  (U. 
S.  Comp.  St.  1901,  p.  508),  as  collusive, 
where  such  corporation  is  merely  the 
agent  of  Georgia  attorneys,  who  brought 
it  into  existence  as  a  corporation  that  in- 
dividual citizens  of  Georgia  having  con- 
troversies with  other  individual  citizens  of 
that  state  might,  in  their  discretion,  have 
the  use  of  its  corporate  name  in  order  to 
create  cases  apparently  within  the  juris- 
diction of  the  federal  court.  Southern 
Realty,  etc.,  Co.  z'.  Walker,  211  U.  S.  603, 
53  L.  Ed.  346,  29  S.  Ct.  211. 

950-56.  Present  rule. — In  re  Metropoli- 
tan R.  Receivership,  208  U.  S.  90,  52  L. 
Ed.   403,   28    S.    Ct.   219. 

953-64.  Corporation  domesticated  by 
filing  articles,  etc. — A  corporation  origi- 
nally incorporated  under  the  laws  of  the 
state  of  Missouri,  which  admits  in  its  an- 
swer the  existence  of  the  diverse  citizen- 
ship relied  upon  to  support  the  jurisdic- 
tion of  the  federal  circuit  court  for  the 
district  of  Nebraska  over  a  suit  against 
it,  can  not  successfully  urge,  to  defeat 
such  jurisdiction,  that  it  had  become  a 
Nebraska  corporation  under  the  constitu- 
tion 'and  laws  of  that  state,  as  construed 
by  its  courts.  Missouri  Pac.  R.  Co.  z'. 
Castle.  224  U.  S.  541,  56  L.  Ed.  875.  32  S. 
Ct.  606. 

"Indeed,  the  contention  is  adversely  dis- 
posed of  by  Southern  R.  Co.  v.  Allison. 
190  U.  S.  326,  47  L.  Ed.  1078.  23  S.  Ct.  713, 
cited   in   Patch   z:  Wabash   R.   Co.,   207   U. 


S.  277,  284,  52  L.  Ed.  204,  28  S.  Ct.  80.  In 
the  Allison  Case,  the  court,  among  other 
cases,  referred  approvingly  to  Walters  v. 
Chicago  B.  &  Q.  R.  Co.,  104  Fed.  377. 
where  it  was  held  that  a  corporation 
originally  created  by  the  state  of  Illinois, 
although  made  by  the  law  of  Nebraska 
a  domestic  corporation  of  that  state,  was 
nevertheless  a  citizen  of  Illinois."  Mis- 
souri Pac.  R.  Co.  V.  Castle,  224  U.  S.  541, 
56   L.    Ed.   875,   32    S.    Ct.    606. 

954-66a.  Simultaneous  incorporation  in 
several  states. — Patch  z'.  Wabash  R.  Co., 
207  U.  S.  277,  52  L.  Ed.  204,  28  S.  Ct.  80. 

"This  seems  to  be  the  opinion  of  the 
supreme  court  of  Illinois,  as  it  certainly 
has  been  shown  to  be  that  this  court. 
Railway  Co.  v.  Whitton,  13  Wall.  270,  20 
L.  Ed.  571;  Muller  v.  Dows,  94  U.  S.  444, 
24  L.  Ed.  207;  Memphis,  etc.,  R.  Co.  v. 
Alabama,  107  U.  S.  581,  27  L.  Ed.  518,  2  S. 
Ct.  432;  Quincy  Railroad  Bridge  Co.  z: 
County  of  Adams,  88  Illinois,  615;  Winn 
z:  Wabash  R.  Co.,  118  Fed.  Rep.  55.  What 
would  be  the  law  in  case  of  a  suit  brought 
in  Illinois  upon  a  cause  of  action  which 
arose  in  Ohio  is  a  question  that  may  be 
left  on  one  side,  as  also  may  be  the  de- 
cisions in  cases  where  a  corporation 
originally  created  in  one  state  afterwards 
becomes  compulsorily  a  corporation  of 
another  state  for  some  purposes  in  order 
to  extend  its  powers.  Southern  R.  Co. 
z).  Allison,  190  U.  S.  326.  47  L.  Ed.  1078,  23 
S.  Ct.  713;  St,  Louis,  etc.,  R.  Co.  v.  James, 
161  U.  S.  545.  40  L.  Ed.  802.  In  the  case 
at  bar  the  incorporations  must  be  taken 
to  have  been  substantially  simultaneous 
and  free."  Patch  z'.  Wabash  R.  Co.,  207 
U.  S.  277,  283.  52  L.  Ed.  204,  28  S.  Ct.  80. 
See  Memphis,  etc.,  R.  Co.  z'.  Alabama. 
107  U.  S,  581,  27  L.   Ed.   518.  2   S.   Ct.  432. 

956-69a.  Suits  by  stockholders  on  be- 
half of  corporation. — See  post,  STOCK 
AND  STOCKHOLDERS. 


416 


Vol.  IV. 


COURTS. 


956-973 


therein  by  the  act  of  congress  of  February  18,  1901  (31  Stat,  at  L.  794,  chap. 
379),  became  an  Oklahoma  corporation  when  the  state  was  admitted  to  the 
Union,  and  must  be  regarded  for  jurisdictional  purposes  as  a  citizen  of  that 
state.^^*^ 

(e)  Suits  by  Assignees — bb.  Object  of  Restriction. — See  note  96. 

(m)  Parties  Collusively  Made  or  Joined. — See  note  52.  There  is  nothing  un- 
lawful in  transferring  shares  to  a  man  out  and  out,  for  the  convenience  of  im- 
mediately beginning  a  suit  that  other  shareholders  have  a  right  to  begin,  that  all 
parties  in  interest  want  to  have  begun,  and  that  the  authorities  of  the  opposing 
jurisdiction  approve.^-'' 


956-69b.    Effect  of  admission  of  state. — 

Shulthis  z:  McDougal,  225  U.  S.  561,  56  L. 
Ed.  1205,  32  S.  Ct.  704. 

962-96.  Object  of  restriction.— A  suit  to 
declare  and  enforce  a  lien  on  certain  in- 
terests in  distributive  shares  of  the  prop- 
erty of  a  decedent  in  the  hands  of  an  an- 
cillary administrator  is  not  within  the 
provision  of  Rev.  St.  U.  S.,  §  629  (U.  S. 
Comp.  St.  1901,  p.  503),  governing  federal 
jurisdiction  of  suits  by  assignees  of  choses 
in  action,  because  plaintifFs  right  is  de- 
rived from  an  heir  whose  .citizenship  is 
the  same  as  that  of  such  administrator, 
where  the  plaintiff,  who  sues  as  adminis- 
tratrix, and  who  is  a  citizen  of  a  different 
state  from  the  defendant  administrator,  is 
suing  primarily  on  the  obligation  of  such 
heir  to  her  intestate,  to  secure  which  a 
lien  was  given  upon  such  heir's  distributive 
share.  Decree,  Coram  v.  Ingersoll  (1906), 
148  Fed.  169.  78  C.  C.  A.  303,  reversed. 
Ingersoll  v.  Coram,  211  U.  S.  335,  53  L. 
Ed.  208.  29  S.   Ct.  92. 

973-52.  Parties  collusively  made  or 
joined. — It  must  appear  to  the  satisfaction 
of  the  circuit  court  that  the  parties  to  that 
suit  have  been  improperly  or  collusively 
made  or  joined  for  the  purpose  of  creat- 
ing a  case  cognizable  under  that  act.  in 
which  case  the  circuit  court  is  directed  to 
proceed  no  further  therein,  but  to  dismiss 
the  suit  on  that  ground.  In  re  Metropoli- 
tan R.  Receivership,  208  U.  S.  90,  110,  52 
L.   Ed.  403,  28  S.  Ct.  219. 

If  the  parties  before  a  federal  circuit 
court  are  properly  aligned  as  plaintiffs  and 
defendants,  the  suit  may  not  be  dismissed, 
under  Act  March  3,  1875,  c.  137,  §  5,  18 
Stat.  472  (U.  S.  Comp.  St.  1901,  p.  511), 
for  collusion  because  necessary  parties  are 
omitted,  either  as  plaintiff  or  defendant, 
whose  presence  would  defeat  the  jurisdic- 
tion of  the  court.  Helm  v.  Zarecor,  222 
U.   S.   32,   56   L.   Ed.   77,   32   S.   Ct.   10. 

Where  the  averments  of  the  bill  are 
true,  and  there  is  no  question  as  to  the 
diversity  of  citizenship,  or  any  evidence 
that  a  case  was  fraudulently  created  to 
give  jurisdiction  to  the  federal  court,  the 
case  will  not  be  regarded  as  collusive 
merely  because  the  parties  preferred  to 
resort  to  the  federal  court  instead  of  to  a 
state  court;  in  the  absence  of  any  im- 
proper act,  the  motive  for  bringing  the 
suit   is   unimportant.      In   re   Metropolitan 

12   U   S    Enc— 27  417 


R.  Receivership,  208  U.  S.  90,  111,  52  L. 
Ed.  403,  28  S.  Ct.  219,  citing  Dickerman  v. 
Northern  Trust  Co.,  176  U.  S.  181,  190, 
44  L.  Ed.  423;  South  Dakota  v.  North 
Carolina,  192  U.  S.  286,  311,  48  L.  Ed.  448; 
Blair  v.  Chicago,  201  U.  S.  400,  488,  50  L. 
Ed.  801;  Smithers  v.  Smith,  204  U.  S.  632, 
644.  51  L.   Ed.  656. 

Collusion  requiring  the  dismissal,  pur- 
suant to  Act  March  3,  1875,  c.  137,  §  5,  18 
Stat.  470  [U.  S.  Comp.  St.  1901,  p.  511], 
of  a  suit  against  a  street  railway  companj'- 
in  a  federal  circuit  court,  can  not  be  in- 
ferred because  the  parties  desired  that  the 
administration  of  the  railway  affairs  be 
taken  in  hand  by  the  court,  to  which  end 
the  defendant  admitted  the  averments  in 
the  bill  and  united  with  complainants  in 
their  request  for  the  appointment  of  re- 
ceivers, where  no  claim  is  made  that  the 
averments  in  the  bill  were  untrue,  or  that 
the  debts  named  therein  as  owing  to  the 
complainants  did  not  in  fact  exist,  and 
there  is  no  question  made  as  to  the  citizen- 
ship of  the  complainants,  and  not  the 
slightest  evidence  of  any  fraud  practiced 
for  the  purpose  of  thereby  creating  a  case 
to  give  jurisdiction  to  the  federal  court. 
In  re  Metropolitan  R.  Receivership,  208 
U.    S.   90,   52  L.   Ed.   403,   28   S.    Ct.   219. 

Objections,  how  and  when  taken  or 
made. — A  plea  to  the  jurisdiction  of  a  fed- 
eral circuit  court,  based  upon  the  ground 
that  the  complainants  had  collusively  made 
parties  complainants  and  defendants  for 
the  purpose  of  showing  the  requisite  di- 
versity of  citizenship,  is  insufficient  in  law 
if  it  does  not  specify  what  parties  are  al- 
leged collusively  to  have  been  made. 
Helm  7'.  Zarecor,  222  U.  S.  32,  56  L.  Ed. 
77,  32  S.  Ct.  10. 

973-52a.  Absolute  conveyance  of  cor- 
porate stock. — In  re  Cleland,  218  U.  S. 
120,   54   L.   Ed.   962,   30   S.   Ct.   647. 

"Some  of  these  shares  had  been  issued 
to  Aldrich  in  payment  for  service,  others 
were  issued  by  the  corporation  upon  pay- 
ment of  $10,  the  proper  sum  at  the  start. 
It  is  said  that,  the  corporation  being  in- 
solvent, the  issue  of  the  certificate  was  a 
fraud  on  the  other  shareholders.  No  one 
comiplains  here  except  the  petitioner.  It 
seems  to  have  been  to  the  advantage  of  all. 
Certainly  it  was  not  necessarily  a  fraud 
upon  them."  In  re  Cleland,  218  U.  S.  120, 
54  L.  Ed.  962,  30  S.  Ct.  647. 


974-979 


COURTS. 


Vol.  IV. 


(4)  Suits  behveen  Aliens  or  between  Citizens  and  Aliens. — See  ante,  Aliens, 

p.    18.  ^.  r       ■    J-      ■ 

d.  Amount  in  Controversy — (1)  Amount  Necessary  to  Give  Jurisdiction — 
(a)  General  Rule. — See  note  59. 

(2)  What  Constitutes— (d)  Suits  to  Prevent  Future  Loss  or  Damage.SQe 
note  72. 

(e)  Suits  to  Unjoin  Taxes. — See  note  73. 

(i)  Joinder  of  Interests  of  Several  Parties — aa.  Parties  Having  Common  or 
Undivided  Interests. — See  note  78. 


974-59.  Amount  in  controversy — Gen- 
eral rules. — Granite,  etc.,  Co.  v.  Landis, 
214  U.  S.  504,  53  L.  Ed.  1061,  29  S.  Ct. 
702. 

978-72.  Suits  to  prevent  future  loss  or 
damage. — The  substantial  character  of  the 
jurisdictional  averment  in  the  bill  is  to  be 
tested,  not  by  the  mere  immediate  pe- 
cuniary damage  resulting  from  the  acts 
complained  of,  but  by  the  value  of  the 
business  to  be  protected  and  the  rights  of 
property  which  the  complainant  seeks  to 
have  recognized  and  enforced;  Bitter- 
man  V.  Louisville,  etc.,  R.  Co.,  207  U.  S. 
205,  225,  52  L.  Ed.  171,  28  S.  Ct.  91,  citing 
Hunt  57.  New  York  Cotton  Exch.,  205  U. 
S.   322,  336,   51   L.   Ed.  821. 

The  jurisdictional  amount  averred  in  a 
bill  filed  in  a  federal  circuit  court  to  en- 
join ticket  brokers  from  dealing  in  non- 
transferable reduced-rate  excursion  tickets 
can  not  be  deemed  colorable  and  fictitious 
when  considered  with  the  averments  as 
to  the  large  number  of  such  tickets  is- 
sued, the  recurring  occasions  for  their 
issuance,  the  magnitude  of  the  wrong 
dealings  by  the  defendants,  the  cost  and 
risk  incurred  by  the  steps  necessary  to 
prevent  their  wrongful  use,  the  injurious 
effect  upon  the  revenue  of  the  complain- 
ing railroad  company,  and  the  operation 
of  the  illegal  dealing  in  such  tickets  upon 
the  company's  right  to  issue  them  in  the 
future,  coupled  with  the  admissions  in  the 
answer  that  defendants  had  not  only  in 
the  past  dealt  in  such  tickets,  but  intended 
to  carry  on  the  business  as  to  all  future 
issues.  Judgment,  Louisville  &  N.  R.  Co. 
V.  Bitterman,  144  F.  34.  75  C.  C.  A.  192, 
affirmed.  Bitterman  z.>.  Louisville,  etc.,  R. 
Co.,  207  U.  S.  205,  52  L.  Ed.  171,  28  S. 
Ct.   91. 

978-73.  Suit  to  enjoin  taxes. — A  suit  to 
enjoin  the  collection  of  taxes  on  the  prop- 
erty of  an  educational  institution  on  the 
ground  of  a  perpetual  contract  of  ex- 
emption from  taxation,  protected  from  im- 
pairment by  the  contract  clause  of  the 
federal  constitution,  involves  the  amount, 
essential  to  sustain  the  original  jurisdic- 
tion of  a  federal  circuit  court,  where  the 
contract  right  exceeds  in  value  that 
amount,  although  the  particular  tax  as- 
sessed and  levied  is  less  than  that  sum. 
Berryman  v.  Board,  222  U.  S.  334.  56  L. 
Ed.  225,  32  S.  Ct.  147,  reversing  decree  (C. 


C.  1907),  Board  of  Trustees  of  Whitman 
College  v.  Berryman,  156  F.  112. 

979-78.  Joinder  of  interests — Parties 
having  common  interest. — Troy  Bank  v. 
Whitehead  &  Co.,  222  U.  S.  39,  56  L.  Ed. 
81,  32  S.  Ct.  9,  citing.  Shields  v.  Thomas, 
17  How.  2,  3,  15  L.  Ed.  93;  Rodd  v.  Heartt, 
17  Wall.  354,  21  L.  Ed.  627;  Davies  v.  Cor- 
bin,  112  U.  S.  36,  40,  28  L.  Ed.  627,  5  S. 
Ct.  4;  Gibson  v.  Shufeldt,  122  U.  S.  27, 
30  L.  Ed.  1083,  7  S.  Ct.  1066;  New  Or- 
leans Pac.  R.  Co.  V.  Parker,  143  U.  S.  42, 

36  L.  Ed.  66,  12  S.  Ct.  364;  Walter  v. 
Northeastern   R.   Co.,   147   U.    S.  370,  373, 

37  L.  Ed.  206,  13  S.  Ct.  348;  Davis  v. 
Schwartz,  155  U.  S.  631,  647,  39  L.  Ed. 
289,  15  S.  Ct.  237;  Illinois  Cent.  R.  Co.  v. 
Adams,  180  U.  S.  28,  45  L.  Ed.  410,  21  S. 
Ct.  251. 

"When  several  plaintiffs  unite  to  en- 
force a  single  title  or  right,  in  which  they 
have  a  common  and  undivided  interest,  it 
is  enough  if  their  interests  collectively 
equal  the  jurisdictional  amount."  Troy 
Bank  v.  Whitehead  &  Co.,  222  U.  S.  39, 
56  L.   Ed.  81,  32   S.   Ct.  9. 

The  undivided  interests  of  joint  owners 
and  holders  of  the  bonds  and  coupons  on 
which  suit  is  brought  may  be  united  for 
the  purpose  of  making  up  the  amount 
necessary  to  give  jurisdiction  to  a  federal 
circuit  court.  Judgment  (C.  C.  A.  1908), 
Thomas  v.  Green  County,  159  F.  339,  af- 
firmed. Green  County  v.  Thomas,  211  U. 
S.   598,  53   L.   Ed.  343,  29  S.   Ct.  168. 

The  value  of  the  matter  in  dispute  in  a 
suit  to  set  aside  judgments  of  a  probate 
court  establishing  claims  against  the  es- 
tate of  an  intestate,  which  are  a  lien  on 
his  real  property  inherited  by  complain- 
ants, on  the  ground  that  they  were  fraudu- 
lently obtained  by  defendants,  acting  in 
concert,  is  the  aggregate  amount  of  the 
clamis  allowed.  McDaniel  v.  Traylor,  212 
U.  S.  428,  53  L.  Ed.  584,  29  S.  Ct.  343. 

An  attorney  for  one  of  the  claimants 
against  a  decedent's  estate  and  for  the  ad- 
ministrator as  well  will  not  be  presumed 
to  have  been  acting  for  all  the  claimants 
in  advising  the  administrator  to  allow  all 
the  claims,  so  as  to  make  the  aggregate 
aniount  of  the  claims  allowed  the  amount 
in  dispute  in  a  suit  to  set  aside  judgments 
of  the  probate  court  establishing  claims 
against  the  estate  which  are  a  lien  on 
the   real   property  inherited  by   complain- 


418 


Vol.  IV. 


COURTS. 


980-991 


bb.  Parties  Having  Distinct  Interests. — See  note  79.  Where  a  plaintiff  is  not 
in  fact  the  owner  of  the  claims  sued  upon,  and  none  of  the  claims  assigned  is 
sufficient  in  amount  to  confer  jurisdiction  upon  the  federal  court,  it  has  no  ju- 
risdiction, and  will  dismiss  the  case  for  that  reason. ^^"^ 

Claims  Assigned  for  Collection. — Claims  or  demands  assigned  for  collec- 
tion only,  the  assignors  remaining  the  absolute  owners,  and  paying  pro  rata  the 
expenses  of  collection,  including  costs  and  attorneys"  fees,  can  not  be  added  to 
the  amount  of  the  assignee's  own  claim  to  create  an  amount  in  dispute,  for  the 
express  purpose  of  enabling  suit  to  be  brought  in  a  Federal  circuit  court.^^'' 

(9)  Proof  of  Value  of  Amount  in  Dispute. — Where  defendants  do  not  formally 
plead  to  the  jurisdiction,  it  is  not  incumbent  upon  complainant  to  offer  proof 
in  support  of  the  averment  that  the  amount  involved  exceeds  the  jurisdictional 
amount  as  to  each  defendant. ^^^ 

g.  Jurisdictional  Averments — (1)  General  Rules — (a)  Necessity  for  Aver- 
ment of  Jurisdictional  Facts. — See  note  22.  The  jurisdiction  of  the  court, 
whether  dependent  on  diversity  of  citizenship  alone,  or  on  other  grounds  as 
well,  must  be  determined  from  the  complainant's  statement  of  his  own  cause  of 
action,  as  set  forth  in  the  bill,  regardless  of  questions  that  may  have  been  brought 
into  the  suit  by  the  answers  or  in  the  course  of  the  subsequent  proceedings. -^a 


ants,  on  the  ground  that  such  judgments 
were  fraudulently  obtained  by  defendants, 
acting  in  concert,  although  he  is  also  the 
attorney  for  several  of  the  claimants  in 
such  suit.  McDaniel  v.  Traylor,  212  U. 
S.  428,  53  L.  Ed.  584,  29  S.  Ct.  343. 

980-79.  Parties  having  distinct  interest. 
—McDaniel  v.  Traylor,  212  U.  S.  428,  53 
L.   Ed.   584,  29   S.   Ct.  343. 

"When  two  or  more  plaintiffs,  having 
separate  and  distinct  demands,  unite  for 
convenience  and  economy  in  a  single  suit, 
it  is  essential  that  the  demand  of  each  be 
of  the  requisite  jurisdictional  amount." 
Troy  Bank  v.  Whitehead  &  Co.,  222  U. 
S.   39,  56   L.    Ed.   81,   32   S.    Ct.   9. 

A  suit  by  the  assignees,  respectively,  of 
two  promissory  notes  given  for  the  un- 
paid portion  of  the  purchase  price  of  real 
property,  to  enforce  the  vendor's  lien, 
which,  under  the  local  law,  passed  to  the 
assignees  as  a  common  security  for  the 
payment  of  both  notes,  without  any  pri- 
ority of  right  in  either  assignee,  involves 
the  amount  essential  to  sustain  the  juris- 
diction of  a  federal  circuit  court,  under 
Act  Aug.  13,  1888,  c.  866,  §  1,  25  Stat.  433 
(U.  S.  Comp.  St.  1901,  p.  508),  if  the  in- 
terests of  such  assignees  collectively 
equal  the  jurisdictional  amount.  Troy  Bank 
V.  Whitehead  &  Co.,  222  U.  S.  39,  56  L.  Ed. 
81,  32  S.  Ct.  9,  reversing  decree  (C.  C. 
1910),  Same  t'.  Whitehead,  184  F.  932. 

980-81a.  Assignee  of  several  claims. — • 
Woodside  v.  Beckham,  216  U.  S.  117,  54 
L.   Ed.  408,   30  S.   Ct.  367. 

"Thus,  in  Bernards  Township  v.  Steb- 
bins,  109  U.  S.  341,  355,  27  L.  Ed.  956,  3 
S.  Ct.  252,  it  was  said,  'The  decision  in 
Williams  v.  Nottawa,  104  U.  S.  209,  26  L. 
Ed.  719,  establishes  that  the  circuit  court 
of  the  United  States  can  not,  since  the 
Act  of  1875    [18  Stat,  at  L.  470,  chap.  137, 


U.  S.  Comp.  Stat.  1901,  p.  508],  entertain 
a  suit  upon  municipal  bonds  payable  to 
bearer,  the  real  owners  of  which  have 
transferred  them  to  the  plamtiffs  of  record 
tor  the  sole  purpose  of  suing  thereon  in 
the  courts  of  the  United  States  for  the 
benefit  of  such  owners,  who  could  not 
have  sued  there  in  their  own  names,  either 
by  reason  of  their  being  citizens  of  the 
same  state  as  the  defendant,  or  by  reason 
of  the  insufficient  value  of  their  claims.' 
And  so  in  Waite  v.  Santa  Cruz,  184  U. 
S.  302,  328,  46  L.  Ed.  552,  22  S.  Ct.  327." 
Woodside  v.  Beckham,  216  U.  S.  117,  54 
L.  Ed.  408,  30  S.  Ct.  367.  And  see  Craw- 
ford V.  Neal,  144  U.  S.  585,  593,  36  L.  Ed. 
552,   12   S.   Ct.   759. 

980-81b.  Claims  assigned  for  collection. 
— Woodside  v.  Beckham,  216  U.  S.  117,  54 
L.   Ed.   408,  30   S.  Ct.  367. 

982-90a.  Proof  of  value  of  amount  in 
dispute.— Bitterman  v.  Louisville,  etc.,  R. 
Co.,  207  U.  S.  205,  52  L.  Ed.  171,  28  S. 
Ct.   91. 

991-22.  Necessity  for  averment  of  facts 
showing  jurisdiction. — "It  is  not  enough 
that  grounds  of  jurisdiction  other  than 
diverse  citizenship  may  be  inferred  argn- 
mentatively  from  the  statements  in  the 
bill,  for  jurisdiction  can  not  rest  on  any 
ground  that  is  not  affirmatively  and  dis- 
tinctly set  forth."  Shulthis  7;.  McDougal, 
225  U.  S.  561,  50  L.  Ed.  1205,  32  S.  Ct.  704, 
citing  Hanford  v.  Davies,  163  U.  S.  273, 
279,  41  L.  Ed.  157,  16  S.  Ct.  1051;  Moun- 
tain View  Min.,  etc.,  Co.  v.  McFadden,  180 
U.  S.  533,  45  L.  Ed.  656,  21  S.  Ct.  48S; 
Bankers  Mut.,  etc.,  Co.  v.  Minneapolis, 
etc.,  R.  Co.,  192  U.  S.  371,  385,  48  L.  Ed. 
4.S4.  24  S.   Ct.  32.J. 

991-22a.  Must  appear  from  statement  in 
bill  alone. — Shulthis  v.  McDougal,  225  U. 
S.  561,  56  L.  Ed.  1205,  32  S.  Ct.  704,  citing 


419 


1008-1014 


COURTS. 


Vol.  IV, 


E.  Supreme  Court — 1.  Jurisdiction — a.  Original  Jurisdiction — (4)  To 
What  Cases  Jurisdiction  Extends — (c)  Cases  to  Which  Stale  Is  a  Party — aa.  Ne- 
cessity for  State  to  Be  Real  Party. — However,  the  supreme  court  is  of  the  opin- 
ion that  the  constitution  conferring  original  jurisdiction  in  a  suit  "in  which  a 
state  shall  be  a  party"  is  not  to  be  interpreted  as  conferring  such  jurisdiction  in 
every  cause  in  which  the  state  elects  to  make  itself  strictly  a  party  plaintiff  of 
record,  and  seeks  not  to  protect  its  own  property,  but  only  to  vindicate  the 
wrongs  of  some  of  its  people  or  to  enforce  it  own  laws  or  public  policy  against 
wrongdoers  generally.-''^ 

dd.  Suits  betzveen  States — (bb)  Necessity  for  State  to  Be  Pecuniarily  Inter- 
ested.— See  note  88. 

(dd)  Nature  and  Object  of  Suit — ccc.  Suits  for  Recovery  of  Debts  and  for 
Accounting. — See  note  94. 

ee.    Suits  betzveen  State  and  United  States. — See  note  6. 

ff.  Suits  betzveen  Slates  and  Citizens  of  Other  States  or  Aliens — (aa)  Suits  by 
State — aaa.  General  Rule. — See  note  7. 


Colorado,  etc.,  Min.  Co.  v.  Turck,  150  U. 
S.  138,  37  L.  Ed.  1030,  14  S.  Ct.  35;  Ten- 
nessee V.  Union,  etc..  Bank,  153  U.  S.  454, 
38  L.  Ed.  511,  14  S.  Ct.  654;  Spencer  v. 
Duplan  Silk  Co.,  191  U.  S.  526,  48  L.  Ed. 
287,  24  S.  Ct.  174;  Devine  v.  Los  Angeles, 
202  U.  S.  313,  333,  50  L.  Ed.  1046,  26  S. 
Ct.   652. 

1008-83a.  Interest  of  state — State  elect- 
ing to  become  party. — Oklahoma  z\  Atchi- 
son, etc.,  R.  Co..  220  U.  S.  277,  55  L.  Ed. 
465,   469,   31    S.    Ct.   434. 

"In  Oklahoma  v.  Atchison,  etc.,  R.  Co., 
220  U.  S.  277,  55  L.  Ed.  465,  31  S.  Ct.  434, 
it  was  held  that  a  state  could  not  invoke 
the  original  jurisdiction  of  the  court,  by 
suit  on  its  behalf,  where  the  primary  pur- 
pose of  the  suit  was  to  pfotect  its  citi- 
zens generally,  against  the  violation  of 
its  laws  by  the  corporations  or  persons 
sued;  that  the  above  words,  'those  in  which 
a  state  shall  be  party,'  were  not  to  be  so 
interpreted  as  to  embrace  suits  of  that 
kind."  Oklahoma  v.  Gulf,  etc.,  R.  Co.,  220 
U.  S.  290,  55   L.   Ed.  469,  31  S.   Ct.  437. 

''Under  a  contrary  view  that  jurisdic- 
tion could  be  invoked  by  a  state,  bring- 
ing an  original  suit  in  this  court  against 
foreign  corporations  and  citizens  of  other 
states,  whenever  the  state  thought  such 
corporations  and  citizens  of  other  states 
were  acting  in  violation  of  its  laws  to  the 
injury  of  its  people  generally  or  in  the 
aggregate;  although  an  injury  in  viola- 
tion of  law,  to  the  property  or  rights  of 
particular  persons  through  the  action  of 
foreign  corporations  or  citizens  of  states, 
could  be  reached,  without  the  interven- 
tion of  the  state,  by  suits  instituted  by  the 
persons  directly  or  immediately  injured." 
Oklahoma  z:  Atchison,  etc.,  R.  Co.,  220  U. 
S.  277,  55  L.  Ed.  465,  469,  31    S.  Ct.  434. 

Suit  to  enjoin  enforcement  railroad 
rates. — The  state  of  Oklahoma  has  no 
such  interest  in  its  corporate  capacity  as 
enables  it  to  invoke  the  original  juris- 
diction of  the  federal   supreme  court  by  a 


suit  to  enjoin  a  foreign  railway  company 
from  charging  more  than  certain  specified 
rates  on  domestic  shipments  of  lime,  ce- 
ment, plaster,  brick,  stone,  and  crude  and 
refined  oil;  the  state  not  being  engaged, 
in  its  governmental  capacity,  in  the  sale 
or  transportation  of  such  commodities, 
and  having  no  property  interest  in  them. 
Oklahoma  v.  Atchison,  etc.,  R.  Co.,  220 
U.   S.  277,  55   L.   Ed.  465,  31   S.  Ct.  434. 

1009-88.  Sufficiency  of  interest  of  state. 
— The  commonwealth  of  Virginia  has  a 
sufficient  interest  to  enable  it  to  maintain 
a  suit  in  the  federal  supreme  court  against 
the  state  of  West  Virginia  to  determine 
the  amount  due  the  former  state  by  the 
latter  as  the  equitable  proportion  of  the 
public  debt  of  the  original  state  of  Vir- 
ginia, which  was  assumed  by  West  Vir- 
ginia at  the  time  of  its  creation  as  a  state, 
although,  •  by  reason  of  certain  transac- 
tions with  her  creditors,  Virginia  may 
have  been  discharged  from  all  liability  as 
to  West  Virginia's  share,  other  than  to 
turn  over  the  proceeds  of  the  suit.  Vir- 
ginia V.  West  Virginia,  220  U.  S.  1,  55  L. 
Ed.  353,  31   S._  Ct.  330. 

1011-94.  Suits  for  recovery  of  debts  and 
for  accounting. — The  determination  of  the 
just  and  equitable  proportion  of  the  pub- 
lic debt  of  the  original  state  of  Virginia 
which  was  assumed  by  West  Virginia  at 
the  time  of  its  creation  as  a  state  is  within 
the  original  jurisdiction  of  the  federal  su- 
preme court,  although,  by  Const.  W.  Va. 
1861,  art.  8,  §  8,  it  is  provided  that  the 
legislature  shall  ascertain  the  proportion 
as  soon  as  may  be  practicable.  Virginia 
V.  West  Virginia,  220  U.  S.  1,  55  L.  Ed. 
353,   31    S.   Ct.   330. 

1014-6.  Suits  between  state  and  United 
States.— Louisiana  v.  Garfield,  211  U.  S. 
70,  53   L.   Ed.  92,  29   S.  Ct.  31. 

1014-7.  Suits  between  states  and  citizens 
of  other  states  or  aliens. — Oklahoma  t'. 
Gulf,  etc..  R.  Co.,  220  U.  S.  290,  55  L.  Ed. 
469,  31  S.  Ct.  437. 


420 


Vol.  I\'. 


COURTS. 


1016-1025 


ddd.  Jurisdiction  as  Dependent  on  Nature  of  Relief  Sought — (ccc)  Actions  to 
Enforce  Penal  Laws  of  State. — See  note  17. 

(bb)    Suits  against  State. — See  note  22. 

gg.   Suits  betzi'een  State,  and  Its  Citizens. — See  note  23. 

2.  Procedure — a.  In  Exercise  of  Original  Jurisdiction — (2)  Mode  of  Pro- 
ceeding.— See  note  37. 

(6)  Pleading — (a)  In  General. — And  the  same  rule  applies  in  a  suit  between 
t\v^o  sovereign  states,  to  determine  the  amount  due  to  the  plaintiff  by  the  defend- 
ant as  its  equitable  proportion  of  the  plaintiff's  public  debt,  which  was  assumed 
by  defendant  at  the  time  of  separation.'*^'' 

P.  Court  of  Claims — 2.  Jurisdiction — e.  Xature  and  Extent  of  Jurisdiction 
—  (1;   Under  Goieral  Statute — (c)  Actions  for  Torts. — See  note  67. 


1016-17.    Action  to  enforce  penal  laws. 

— "The  words  'in  which  a  state  shall  be 
party,'  literally  construed,  would  embrace 
original  suits  of  a  civil  nature  brought  by 
a  state  in  this  court  to  enforce  a  judgment 
rendered  for  a  violation  of  its  penal  or 
criminal  laws.  But  it  has  been  adjudged, 
upon  full  consideration,  that  that  result 
was  inadmissible  under  the  constitution. 
This  will  appear  from  an  examination  of 
the  opinion  and  judgment  in  Wisconsin 
V.  Pelican  Ins.  Co.,  127  U.  S.  265.  293,  32 
L.  Ed.  239,  8  S.  Ct.  1370."  Oklahoma  v. 
Gulf,  etc.,  R.  Co.,  220  U.  S.  290,  55  L.  Ed. 
469.  31   S.  Ct.  431. 

The  federal  supreme  court  can  not  take 
original  jurisdiction  of  a  suit  by  a  state 
against  persons  or  corporations  of  other 
states,  where  such  suit,  though  in  the 
form  of  a  civil  action,  is,  in  its  essential 
character,  one  to  enforce  by  injunction 
the  penal  or  criminal  legislation  of  the 
state  against  traffic  in  intoxicating  liquo'-s. 
Oklahoma  v.  Gulf,  etc.,  R.  Co.,  220  U.  S. 
290,   55   L.   Ed.   469,   31   S.   Ct.   437. 

A  state  may  not  invoke  the  original 
jurisdiction  of  the  federal  supreme  court 
by  suit  on  its  behalf  against  persons  or 
corporations  of  other  states,  where  the 
primary  purpose  of  the  suit  is  to  protect 
its  citizens  generallj''  against  the  violation 
of  its  laws  by  the  corporations  or  persons 
sued.  Oklahoma  z:  Gulf,  etc..  R.  Co.,  220 
U.   S.   290.   55  L.   Ed.   469,   31    S.    Ct.   437. 

1017-22.  Suits  against  state. — Ex  parte 
Young,  209  U.  S.  123.  52  L.  Ed.  714.  28 
S.  Ct.  441.  See,  also.  Hunter  v.  Wood, 
209  U.   S.  205.   52  L.  Ed.  747.  28   S.  Ct.  472. 

1017-23.  Suit  between  state  and  its  citi- 
zens.— The  eleventh  amendment  applies 
to  a  suit  brought  against  a  state  by  one 
of  its  own  citizens  as  well  as  to  one 
brought  by  a  citizen  of  another  state.  Ex 
parte  Young.  209  U.  S.  123.  52  L.  Ed.  714. 
28  S.  Ct.  441. 

1019-37.  Departure  from  rules  to  pro- 
mote justice. — A  suit  between  the  com- 
monwealth of  Virginia  and  the  state  of 
West  Virginia,  to  determine  the  amount 
due  to  the  former  by  the  latter  as  the 
equitable  proportion  of  the  public  debt  of 
the  original   state  of  Virginia,  which  was 


assumed  by  West  Virginia  at  the  time  of 
its  creation  as  a  state,  is  to  be  considered 
by  the  federal  supreme  court  in  the  un- 
technical  spirit  proper  for  dealing  with  a 
quasi  international  controvers}\  Virginia 
V.  West  Virginia,  220  U.  S.  1,  55  L.  Ed. 
353.   31   S.   Ct.   330. 

"The  case  is  to  be  considered  in  the  un- 
technical  spirit  proper  for  dealing  with  a 
quasi  international  controversy,  remem- 
bering that  there  is  no  municipal  code 
governing  the  matter,  and  that  this  court 
may  be  called  on  to  adjust  differences 
that  can  not  be  dealt  with  by  congress  or 
disposed  of  by  the  legislature  of  either 
state  alone."  Virginia  v.  West  Virginia, 
220  U.  S.  1,  55  L.  Ed.  353,  31  S.  Ct.  330. 
citing  Missouri  z'.  Illinois,  etc..  Dist.,  200 
U.  S.  496,  520.  50  L.  Ed.  572.  26  S.  Ct.  268; 
Kansas  7-.  Colorado.  206  U.  S.  46,  84.  51 
L.    Ed.    956,   27    S.    Ct.    655. 

1021-46a.  Suit  to  apportion  public  debt 
between  states. — Objections  as  to  multi- 
fariousness, laches,  and  the  like,  except 
so  far  as  they  affect  the  merits,  will  not  be 
considered  bj^  the  federal  supreme  court  in 
a  suit  by  the  commonwealth  of  Virginia 
against  the  state  of  West  Virginia  to  de- 
termine the  amount  due  to  the  former  by 
the  latter  as  the  equitable  proportion  of 
the  public  debt  of  Virginia  which  was  as- 
sumed bj'  West  Virginia  at  the  time  of 
its  creation  as  a  state.  Virginia  t.  West 
Virginia,  220  U.  S.  1.  55  L.  Ed.  353,  31  S. 
Ct.    330. 

1025-67.  Actions  for  torts. — "Manifestly, 
no  action  can  be  maintained  under  this 
statute  unless  the  United  States  became 
bound  b}^  implied  contract  to  compensate 
the  plaintiff  for  the  value  of  the  property 
destroA'ed,  or  unless  the  case — regarding 
it  as  an  action  to  recover  damages — be 
one  'not  sounding  in  tort.'  "  Juragua  Iron 
Co.  7'.  United  States,  212  U.  S,  297.  53  L. 
Ed.  520.  29  S.  Ct.  385.  See  post.  "Civil 
War  Claims."  VII.  F,  2,  e,  (1^  (d) ; 
"Propertv  to  Which  Government  Asserts 
No  Title?'  VII.  F,  2.  e.   Cl),   CO.  aa. 

A  claim  against  the  United  States  for 
compensation  for  unlawful  and  unneces- 
sarj^  destruction  of  property  during  .the 
war  under  the  order  of  the  general  com- 


421 


1026-1039 


COURTS. 


Vol.  IV. 


(d)    Cknl  War  Glaims. — See  note  70. 

(f)  Claims  for  Property  Taken  for  Public  Use — aa.  Property  to  Which  Gov- 
ernment Asserts  No  Title.—S&e  note  82.  An  implied  contract  to  pay  for  the  use 
of  a  patent,  justiciable  in  the  court  of  claims,  arises  out  of  its  use  by  the  United 
States  with  the  patentee's  consent,  and  with  no  claim  of  ownership  on  the  part 
of  the  United  States,  and  nothing  to  show  any  intention  to  dispute  the  patentee's 
title.83« 

(2)  Under  Special  Statutes — (a)  In  General. — The  extent  of  jurisdiction  of 
the  court  of  claims  under  a  special  act  depends,  of  course,  upon  the  wording  of 
and  construction  given  to  that  particular  jurisdictional  act.^^^ 

(f)    Claims  by  Indian  Tribes.— See  note  37.     But  the  Act  of  March  1,  1907, 


manding  is  one  "sounding  in  tort"  within 
the  meaning  of  Act  March  3,  1887,  c.  359, 
24  Stat.  505  (U.  S.  Comp.  St.  1901,  p.  752), 
excluding  cases  of  that  character  from  the 
jurisdiction  of  the  court  of  claims.  Judg- 
ment, 42  Ct.  CI.  99,  affirmed.  Juragua 
Iron  Co.  V.  United  States,  212  U.  S.  297, 
53  L.  Ed.  520,  29  S.  Ct.  385. 

The  United  States  is  not  suable  in  the 
court  of  claims  upon  a  claim  for  the  value 
of  the  use  by  the  military  authorities  of 
a  Spanish  merchant  vessel  captured  in  the 
hart)or  of  Santiago,  since,  even  under  the 
mistaken  assumption  that  the  vessel  was 
immune  from  capture  because  of  the 
prior  capitulation  of  Santiago,  and  the 
president's  proclamation  of  July  13,  1898, 
with  respect  to  the  rights  of  private  prop- 
erty, the  claim  would  be  one  "sounding 
in  tort"  within  the  meaning  of  Tucker  Act 
March  3,  1887,  c.  359,  24  Stat.  505  (U.  S. 
Comp.  St.  1901,  p.  752),  excluding  cases 
of  that  character  from  the  jurisdiction  of 
the  court  of  claims.  Herrera  v.  United 
States.  222  U.  S.  558,  56  L.  Ed.  316.  32  S. 
Ct.   179. 

1026-70.  Civil  war  claims. — Juragua  Iron 
Co.  z\  United  States,  212  U.  S.  297.  53  L. 
Ed.  520.  29  S.  Ct.  385. 

"In  the  circumstances  disclosed  by  the 
record,  it  can  not  reasonably  be  said  that 
there  was,  in  respect  of  the  destruction  of 
the  property  in  question,  any  'convention 
between  the. parties,'  any  'coming  together 
of  minds,'  or  any  circumstances  from 
which  a  contract  could  be  implied."  Jur- 
agua Iron  Co.  V.  United  States,  212  U.  S. 
297,  53  L.  Ed.  520,  29  S.  Ct.  385,  citing  Rus- 
sell V.  United  States,  182  U.  S.  516,  530, 
45  L.  Ed.  1210,  21  S.  Ct.  899;  Harley  v. 
United  States,  198  U.  S.  229,  234.  49  L.  Ed. 
1029,  25   S.   Ct.  G34. 

1029-82.  Property  taken  for  public  use — 
Government  asserting  no  title. — Juragua 
Iron  Co.  z:  United  States,  212  U.  S.  297,  53 
L.  Ed.  520,  29  S.  Ct.  385.  See,  also,  post, 
EMINENT  DOMAIN. 

1029-83a.  Implied  contract  arising  out  of 
use  of  patent. — United  States  7'.  Societe 
.A.nonyme,  etc.,  Cail,  224  U.  S.  309,  56  L. 
Ed.  778,  32  S.  Ct.  479. 

1036-18a.  Extent  of  jurisdiction.— The 
jurisdiction  of  the  court  of  claims,  under 
Act  Feb.  25,  1905,  c.  800,  33  Stat.  815,  of  a 


claim  for  the  value  of  real  property  in  the 
possession  of  the  United  States,  is  not 
confined  to  a  determination  of  the  exist- 
ence of  title  in  the  claimants'  grantor  when 
the  United  States  took  possession,  but 
extends  to  the  question  whether  such 
grantor  ratified  a  prior  deed  from  her  hus- 
band's executor,  under  which  the  United 
States  claims,  where  the  statute  confers 
jurisdiction  to  hear  the  claim,  and,  if  the 
court  finds  from  the  evidence  on  file  and 
to  be  "presented  on  either  side"  that  the 
claimants  "acquired  a  valid  title  to  said 
real  property,  as  claimed,"  to  award  them 
the  market  value  at  the  time  possession 
was  taken,  and,  in  addition,  states  that 
any  defense  may  be  pleaded  by  the  United 
States  as  defendants.  Hussey  v.  United 
States,  222  U.  S.  88,  56  L.  Ed.  106,  32  S.  Ct. 
33,  affirming  judgment  in  Crane  v.  Same,  44 
Ct.  CI.  324. 

Infringement  cases — Act  of  June  25, 
1910.— Anj'  existing  federal  equity  jurisdic- 
tion of  a  suit  against  an  army  officer,  based 
upon  his  alleged  infringement  of  certain 
patents  for  the  benefit  of  the  United 
States,  from  which  suit,  by  stipulation, 
every  claim  based  upon  the  prior  use  of 
infringing  devices  was  withdrawn,  as  was 
also  the  prayer  for  preliminary  injunction 
and  accounting,  leaving  in  issue  only  the 
right  to  a  permanent  injunction  forbidding 
the  making  of,  or  causing  t^o  be  made  by 
the  defendant, -guns  or  gun  carriages  em- 
bodying the  inventions  owned  by  com- 
plainant, was  ousted  by  the  provisions  of 
the  Act  of  June  25,  1910  (36  Stat,  at  L.  851, 
chap.  423),  that  whenever  an  invention 
described  in,  and  covered  by,  a  patent  of 
the  United  States,  "shall  hereafter  be  used 
by  the  United  States  without  license  of 
the  owner  thereof,  or  lawful  right  to  use 
the  saine,  such  owner  may  recover  rea- 
sonable compensation  for  such  use  by  suit 
in  the  court  of  claims,"  the  effect  of  which 
is  to  provide  for  the  appropriation  of  a 
license  to  use  the  invention,  the  appropri- 
ation thus  made  being  sanctioned  by 
means  of  the  compensation  for  which  the 
statute  provides.  Crozier  t'.  Krupp,  224 
U.  S.  290,  56  L.  Ed.  771,  32  S.  Ct.  488. 

1039-37.  Claims  by  Indian  tribes.— Con- 
gress in  1896  virtually  restored  Indian  an- 
nuities   forfeited    for    participation    in    the 


422 


Vol.  IV. 


COURTS. 


1040-1053 


c.  2290,  34  Stat.  1055,  authorizing  the  court  of  claims  to  adjudicate  the  claims  of 
the  Sac  and  Fox  Indians,  gives  individual  Indians  a  forum  in  which  to  assert 
such  rights  as  they  may  possess.^  ^'^ 

3.  Procedure — c.  Evidence — (1)  Ordinary  Rules  of  Evidence  Govern. — 
See  note  65. 

J.  State  Laws  as  Rules  of  Decision  in  Federal  Courts — 1.  Statutory 
Provisiox. — Status  of  Courts. — When  administering  state  laws  and  deter- 
mining rights  accruing  under  those  laws,  the  jurisdiction  of  the  federal  court  is 
an  independent  one,  not  subordinate  to,  but  coordinate  and  concurrent  with,  the 
jurisdiction  of  the  state  courts. ^'^^ 

2.  Reason  of  Rule. — Decision  as  Rules  of  Property. — Where,  before  the 
rights  of  the  parties  accrued,  certain  rules  relating  to  real  estate  have  been  so 
established  by  state  decisions  as  to  become  rules  of  property  and  action  in  the 
state,  those  rules  are  accepted  by  the  federal  court  as  authoritative  declarations 
of  the  law  of  the  state. ^"^"^ 

9.  Right  of  Federal  Court  to  Exercise  Independent  Judgment — a.  In 
Absence  of  Decision  by  State  Court — (1)    In  General. — See  note  10. 


Sioux  outbreak  of  1862,  and  directed  the 
federal  supreme  court  to  ascertain  the 
amount  due.  Held,  that  it  was  the  inten- 
tion of  the  Jurisdictional  Act  (Act  June 
■21,  1906,  c.  3504,  34  Stat.  372)  that  the 
court  shall  examine  "all  payments  or  other 
provisions  of  every  name  and  nature" 
made  to  the  Indians  since  the  treaty  of 
1851  (10  Stat.  949),  and  from  the  nature  of 
the  same  and  the  circumstances  under 
which  they  were  made  determine  whether 
the}^  are  properly  chargeable  against  the 
unpaid  annuities  granted  by  this  treaty. 
Sisseton  and  Wahpeton  Bands  of  Indians 
V.  United  States,  42  Ct.  CI.  416,  judgment 
affirmed  in  United  States  v.  Sissetcn,  etc., 
Indians,  208  U.  S.  561,  52  L.  Ed.  621,  28  S. 
Ct.  352. 

1040-41a.  Claims  of  individual  Indians. — 
Sac  and  Fox  Indians  z'.  Sac  and  Fox  In- 
dians. 220  U.  S.  481,  55  L.  Ed.  552,  31  S.  Ct. 
473. 

1046-65.  Evidence  and  taking  proof. — 
Ex  parte  affidavits  forming  exhibits  in  de- 
partmental reports  printed  as  congres- 
sional documents  were  not  made  evidence 
in  a  suit  in  the  court  of  claims,  brought 
under  Act  March  1,  1907,  c.  2290,  34  Stat. 
1055,  b}^  the  provisions  of  that  act  that 
such  reports  shall  be  evidence,  to  be  given 
such  weight  as  the  court  may  determine 
for  them.  Sac  and  Fox  Indians  z\  Sac  and 
Fox  Indians,  220  U.  S.  481,  55  L.  Ed.  552. 
31  S.  Ct.  473,  affirming  judgment  (1910)  45 
Ct.  CI.  287. 

1049-86a.  Status  of  courts. — Kuhn  v. 
Fairmont  Coal  Co.,  215  U.  S.  349,  54  L. 
Ed.    228,    30    S.     Ct.    140. 

1050-87a.  Decisions  as  rules  of  property. 
— Kuhn  z\  Fairmont  Coal  Co.,  215  U.  S. 
349.    54    L.    Ed.    228,    30    S.    Ct.    140. 

1053-10.  Absence  of  state  court  decision 
— In  general — State  law  not  settled. — 
\\'here  the  law  of  the  state  has  not  been 
settled,  it  is  not  only  the  right,  but  the 
'duty,  of  the  federal   court  to  exercise  its 


own  judgment,  as  it  also  always  does 
when  the  case  before  it  depends  upon  the 
doctrines  of  commercial  law  and  general 
jurisprudence.  Kuhn  v-  Fairmont  Coal 
Co.,  215  U.  S.  349,  54  h.  Ed.  228,  30  S. 
Ct.    140. 

"So,  when  contracts  and  transactions 
are  entered  into  and  rights  have  accrued 
under  a  particular  state  of  the  local  de- 
cisions, or  when  there  has  been  no  deci- 
sion by  the  state  court  on  the  particular 
question  involved,  then  the  federal  courts 
properly  claim  the  right  to  give  effect  to 
their  own  judgment  as  to  what  is  the 
law  of  the  state  applicable  to  the  case, 
even  where  a  different  view  has  been  ex- 
pressed by  the  state  court  after  the  rights 
of  parties  accrued.  But  even  in  such 
cases,  for  the  sake  of  comity  and  to  avoid 
confusion,  the  federal  court  should  al- 
ways lean  to  an  agreement  with  the  state 
court  if  the  question  is  balanced  with 
doubt."  Kuhn  v.  Fairmont  Coal  Co.,  215 
U.   S.  349,  54  L.   Ed.  228,  30  S.  Ct.  140. 

The  supreme  court  of  the  United  States 
will  assume  that  a  refusal  by  a  purchaser 
in  possession  of  personal  property  to  pay 
for  it,  to  satisfy  a  mortgage  lien  on  it,  or 
release  it,  unless  the  seller  will  execute 
another  contract  to  his  detriment,  which, 
if  persisted  in,  both  parties  understand 
will  lead  to  an  immediate  foreclosure  and 
the  ruin  of  the  seller,  amounts  to  undue 
influence  within  the  meaning  of  a  state 
statute  permitting  a  contract  to  be  set 
aside  for  such  cause,  until  the  supreme 
court  of  the  state  says  otherwise.  Judg- 
ment, Snyder  v.  Stribling  (1907)  89  P.  222, 
18  Okl.  168,  affirmed.  Snyder  v.  Rosen- 
baum,  215  U.  S.  261,  54  L.  Ed.  186,  30  S. 
Ct.  73. 

A  decision  of  the  highest  state  court 
that  the  grantor  in  a  deed  conveying  the 
coal  under  a  tract  of  land,  with  the  right 
to  enter  upon  and  under  said  land,  and  to 
mine,  excavate,  and  remove  all  of  the  coal, 


423 


1055-1068 


COURTS. 


Vol.  IV. 


(2)    Effect  of  Subsequent  Contrary  Decision  by  State  Court. — See  note  14. 

13.  Upon  What  Questions  or  Matters  State  Laws  and  Decisions  Govern 
— c.  Particular  Questions  or  Matters— (I)  Actions — (b)  Right  of  Actions  Given 
'by  State  Laivs—hh.  Rights  of  Equitable  Nature.— As  to  jurisdiction  of  federal 
courts  to  enforce  rights  of  an  equitable  nature  given  by  state  statute,  see  post, 
Equity. 

(5)  Attachment  and  Garnishment. — The  view  of  a  territorial  supreme  court, 
that  an  alias  attachment  is  not  authorized  by  the  local  statutes  is  very  persuasive 
upon  the  federal  supreme  court  in  construing  such  statutes.'*^^ 

(7)    Bills,  Notes  and  Checks. — See  note  46. 

(10)  Courts — (b)  Jurisdiction. — Jurisdiction  of  Federal  Court. — In  cases 
which  concern  the  jurisdiction  of  the  federal  courts,  notwithstanding  the  pro- 
visions of  the  so-called  Conformity  Act,  neither  the  statutes  of  the  state  nor  the 
decisions  of  its  courts  are  conclusive  upon  the  federal  courts.^-'' 

(12)  Construction  of  State  Constitution  or  Lazvs — (a)  In  General. — See 
note  65. 

(b)    Construction  Considered  as  Part  of  Statuic. — See  note  68. 


can  not  maintain  an  action  for  damages 
in  tort,  founded  upon  the  failure  of  the 
grantee  or  his  successors  to  leave  suf- 
ficient support  to  the  overlying  or  surface 
land,  is  not  binding  upon  the  federal 
courts  in  a  similar  action  based  on  al- 
most identical  facts  and  circumstances, 
the  granting  clause  of  the  two  deeds  be- 
ing in  fact  identical,  where  such  decision 
was  handed  down  after  the  deed  upon 
which  the  defendant  relies  was  executed, 
and  after  the  injury  complained  of  was 
sustained,  and  the  action  begun,  and 
where  the  point  decided  had  not  been 
previously  adjudged  by  the  state  supreme 
court.  Kuhn  v.  Fairmont  Coal  Co.,  215 
U.    S.   349,   54   L.    Ed.   228,   30    S.    Ct.    140. 

1055-14.  Subsequent  contrary  construc- 
tion.— A  federal  court  will  not  follow  a 
state  decision  construing  a  state  statute 
in  a  suit  involving  rights  which  previously 
accrued  and  for  the  protection  of  which 
relief  had  previously  been  granted  on  a 
dififerent  construction.  Judgment  (C.  C.) 
Fleischmann  Co.  v.  Murray,  161  F.  162; 
Wilson  Distilling  Co.  v.  Same,  Id.,  af- 
firmed. (C.  C.  A.)  Murray  z\  Wilson 
Distilling  Co.,  164  F.  1,  decree  reversed 
29  S.  Ct.  458,  Murray  7;.  Wilson  Distilling 
Co.,  213  U.  S.  151,  53  L.  Ed.  742,  29  S. 
Ct.    458. 

1062-44a.  Attachment — View  of  terri- 
torial supreme  court. — Crary  ?'.  Dye,  208 
U.  S.  515,  52  L.  Ed.  595,  28  S.  Ct.  360. 
See  ante,  APPEAL  AND  ERROR,  p.  34. 

1063-46.  Bills,  notes  and  checks. — See 
post,    "Damages,"    VII,   J,    13,    c,    (16). 

1066-62a.  Jurisdiction  of  federal  court. 
— Mechanical  Appliance  Co.  v.  Castleman, 
215  U.  S.  437,  54  L.  Ed.  272,  30  S.  Ct.  125. 

"The  ultimate,  determination  of  such 
questions  of  jurisdiction  is  for  this  court 
alone."  Mechanical  Appliance  Co.  v.  Cas- 
tleman, 215  U.  S.  437.  54  L.  Ed.  272,  30 
S.  Ct.  125,  citing  Western  Loan,  etc.,  Co. 
V.  Butte,  etc.,  Min.  Co.,  210  U.  S.  368,  369, 
52    L.    Ed.    1101,   28    S.    Ct.    720;    Mexican 


Cent.  R.  Co.  v.  Pinknev,  149  U.  S.  194,  37 
L.    Ed.    699,    13    S.    Ct.    859. 

1066-65.     Construction    of    state    law. — 

The  supreme  court  of  the  United  States 
will  accept  the  construction  given  to  the 
Massachusetts  statute  by  the  state  court. 
Boston  Chamber  of  Commerce  v.  Boston, 
217  U.  S.  189,  54  L.  Ed.  725,  30  S.  Ct. 
459,  citing  Maiorano  v.  Baltimore,  etc.,  R. 
Co..  213  U.  S.  268,  272,  53  L.  Ed.  792,  29 
S.    Ct.   424. 

The  federal  supreme  court  on  writ  of 
error  to  a  state  court  will  accept  that 
court's  construction  of  a  state  statute  giv- 
ing a  lien  on  vessels  for  injuries  committed 
by  them  to  persons  or  property,  as  in- 
cluding injuries  to  a  bridge,  caused  by  a 
foreign  vessel  engaged  in  interstate  com- 
merce. Martin  v.  West,  222  U.  S.  191, 
56  L.  Ed.  159,  32  S.  Ct.  42.  affirming  judg- 
ment West  V.  Martin,  97  P.  1103,  51  Wash. 
85.    21    L.    R.    A.    (N.    S.)    324. 

Whether  the  notice  to  a  corporation  to 
produce  books  and  papers  before  a  grand 
jury  is  broader  than  that  provided  for  by 
Act  Vt.  Oct.  9,  1906,  p.  79,  No.  75,  is  a 
question  of  the  construction  of  the  stat- 
ute and  of  the  notice,  on  which  the  deci- 
sion of  the  state  court  is  final,  and  not  re- 
viewable by  the  federal  supreme  court  on 
writ  of  error.  Tudgment,  In  re  Consoli- 
dated Rendering  Co.  (Vt.  1907)  66  A.  790, 
affirmed.  Consolidated  Rendering  Co.  v. 
Vermont,  207  U.  S.  541,  52  L.  Ed.  327, 
28    S.    Ct.    178. 

Constitution  or  territorial  statute. — 
The  construction  of  a  territorial  statute 
by  the  local  courts  is  of  great,  if  not  con- 
trolling, weight.  Judgment  (Ariz.  1906) 
85  P.  245,  affirmed.  Lewis  v.  Herrera, 
208  U.  S.  309,  52  L.  Ed.  506.  28  S.  Ct.  412. 
See  ante,  APPEAL  AND  ERROR,  p.  34; 
post.  STATUTES.  See  ante,  "Attach- 
ment and  Garnishment,"  VII,  J,  13,  c,  (5). 

1068-68.  The  construction  placed  by 
the  highest  court  of  the  state  upon  Laws 
N.    Y.    1908,   c.   429,   enacted   to    safeguard 


424 


Vol.  IV. 


COURTS. 


1068-1077 


(c)  Consistency  of  Statute  zmth  State  Constitution. — See  note  69. 

(d)  Construction  of  State  Constitution — aa.  In  Generul.^See  note  70. 

(f)   Decision  as  to  What  Are  Lazus  of  State — bb.  Legality  of  Enactment. — See 
note  75. 

cc.  Repeal. — See  note  76. 

(14)    Corporations — (b)  Poivers. — See  note  2. 

(c)    Construction  of  Charter. — See  note  3. 


natural  mineral  springs  against  waste 
and  impairment,  must  be  accepted  by  the 
federal  courts  in  determining  the  validity 
of  such  statute  under  the  federal  constitu- 
tion. Lindsley  v.  Natural  Carbonic  Gas 
Co.,  220  U.  S.  61,  55  L.  Ed.  369,  31  S.  Ct. 
337,  affirming  decree  (C.  C.  1909)  170  F. 
1023. 

"That  construction  must  be  accepted 
by  the  courts  of  the  United  States,  and 
be  regarded  by  them  as  a  part  of  the 
provision  when  they  are  called  upon  to 
determine  whether  it  violates  any  right 
secured  by  the  federal  constitution." 
Lindsley  v.  Natural  Carbonic  Gas  Co., 
220  U.  S.  61.  55  L.  Ed.  369,  31  S.  Ct.  337, 
citing  Weightman  v.  Clark,  103  U.  S.  256, 
260,  26  L.  Ed.  392;  Morley  v.  Lake  Shore, 
etc.,  R.  Co..  146  U.  S.  162.  166.  36  L.  Ed. 
925.  13  S.  Ct.  54;  Olsen  v.  Smith.  195  U. 
S.    332,   342,   49   L.    Ed.   224,   25    S.    Ct.    52. 

1068-69.  Consistency  with  constitution. 
—Hunter  v.  Pittsburgh,  207  U.  S.  161,  52 
L.    Ed.    151,    28    S.    Ct.    40. 

1069-70.  Construction  of  state  constitu- 
tion.— The  interpretation  of  a  state  con- 
stitution and  the  conformity  of  an  enact- 
ment of  the  state  legislature  to  that 
constitution  are  questions  solel}^  for  the 
consideration  of  the  state  courts,  whose 
decision  thereon  concludes  the  federal  su- 
preme court.  Judgment,  In  re  City  of 
Pittsburgh,  66  A.  348,  217  Pa.  227;  Appeal 
of  Hunter,  Id.,  affirmed.  Hunter  f.  Pitts- 
burgh, 207  U.  S.  161,  52  L.  Ed.  151,  28  S. 
Ct.   40. 

The  policy,  wisdom,  justice,  and  fair- 
ness of  a  state  statute  is  not  subject  to 
review  or  criticism  by  the  federal  supreme 
court.  Judgment,  In  re  City  of  Pitts- 
burgh, 66  A.  348,  217  Pa.  227;  Appeal  of 
Hunter,  Id.,  affirmed.  Hunter  v.  Pitts- 
burgh, 207  U.  S.  161,  52  L.  Ed.  151,  28  S. 
Ct.    40. 

1070-75.  Legality  of  enactment. — Fed- 
eral courts  must  follow  the  adjudications 
of  the  courts  of  a  state  upon  the  question 
as  to  whether  a  particular  law  of  that 
state  has  been  passed  in  such  a  manner 
as  to  become  a  valid  law  under  the  state 
constitution.  Peters  7'.  Broward,  222  U. 
S.  483,  56  L.  Ed.  278,  32  S.  Ct.  122,  citing 
South  Ottawa  v.  Perkins,  94  U.  S.  260, 
24  L.  Ed.  154;  Leeper  v.  Texas.  139  U.  S. 
462,  467,  35  L.  Ed.  225,  11  S.  Ct.  577;  Board 
V.  Coler  &  Co..  189  U.  S.  511,  47  L.  Ed. 
923,    23     S.     Ct.     857. 

An     independent     judgment     upon     the 


question  of  the  validity  of  a  grant  of 
lands  by  a  state  statute  which  the  highest 
court  of  the  state  has  held  invalid  be- 
cause the  title  of  the  act,  as  shown  in 
the  legislative  journals,  differing  in  this 
respect  from  the  published  session  laws, 
was  not  broad  enough  to  include  such 
grant,  can  not  be  exercised  by  the  federal 
courts,  upon  the  theory  that  such  decision 
was  rendered  after  rights  under  such 
grant  had  arisen,  where  the  state  court, 
long  before  the  statute  was  passed,  had 
laid  down  the  rule  that,  if  the  legislative 
journals  should  show  that  a  law  had  not 
been  validly  enacted,  this  fact  would  be 
fatal.  Peters  v.  Broward,  222  U.  S.  483,  56 
L.    Ed.    278,    32    S.    Ct.    122. 

1070-76.  Decisions  as  to  repeal  of  state 
statute. — A  decision  of  the  highest  state 
court  that  the  Michigan  Indeterminate 
Sentence  Act  (Pub.  Acts  1903,  No.  136), 
was  not  repealed  as  to  those  sentenced 
under  it  by  Pub.  Acts  1905,  No.  184,  will 
be  followed  by  the  federal  supreme  court 
on  writ  of  error  to  the  state  court.  Ugh- 
banks  v.  Armstrong,  208  U.  S.  481,  52  L. 
Ed.    582,   28    S.    Ct.    372. 

1076-2.  Corporations — Powers. — Rulings 
of  the  highest  court  of  the  state  on  ques- 
tions involving  the  powers  of  corpora- 
tions under  the  laws  of  that  state  are 
conclusive  on  the  federal  supreme  court 
when  reviewing  the  judgment  of  the  state 
court.  Judgment.  Southern  Illinois  &  M. 
Bridge  "Co.  v.  Stone,  92  S.  W.  475,  194 
Mo.  175,  affirmed.  Stone  v.  Southern 
Illinois,  etc..  Bridge  Co.,  206  U.  S.  267.  51 
L.    Ed.    1057,   27    S.    Ct.   615. 

It  is  for  the  state  courts  alone  to  decide 
whether  the  display  of  exterior  advertise- 
ments upon  automobile  stages  is  ultra 
vires  of  a  domestic  corporation  operat- 
ing stage  routes  in  the  streets  of  a  city 
for  the  carriage  of  passengers  and  prop- 
erty for  hire.  Fifth  Ave.  Coach  Co.  :'. 
New  York.  221  U.  S.  467,  55  L.  Ed.  815, 
31  S.  Ct.  709.  86  N.  E.  824,  194  N.  Y.  19, 
21  L.  R.  A.  (N.  S.)  744,  16  A.  &  E.  Ann. 
Cas.  695.  which  affirms  110  N.  Y.  S. 
1037,  which  affirms  (1908)  111  N.  Y.  S. 
759. 

1077-3.  Construction  of  charter. — De- 
cisions of  the  highest  court  of  the  state 
of  New  York  as  to  the  construction  of 
the  charter  of  an  insurance  company  ob- 
tained under  a  general  law  of  the  state 
are  binding  upon  the  federal  courts.  De- 
cree  (1907)   Brown  v.   Equitable  Life  As- 


425 


1079-1117 


COURTS. 


Vol.  IV. 


(15)  Criminal  Law. — The  federal  supreme  court  will  follow  the  construction 
of  an  indeterminate  sentence  law  by  the  highest  court  of  the  state,  to  the  effect 
that  where  the  maximum  term  of  imprisonment  for  a  crime  has  been  fixed  by 
statute  a  maximum  term  fixed  by  the  court  of  a  shorter  period  is  simply  void.^"^ 

(16)  Damages. — See  note  18. 

(17)  Death  by  Wrongful  Act. — So  the  construction  of  the  statute  as  to  who 
are  included  within  its  terms  giving  the  right  of  action  must  be  followed. ^^^ 

(27)  Insurance — (a)  Construction  of  Insurance  Policy. — See  note  70. 

(31)  Limitation  of  Actions  and  Adverse  Possession — (a)  Effect  of  State  Stat- 
ute on  Proceedings  in  Federal  Court — aa.  In  Absence  of  Limitations  Provided  by 
Act  of  Congress — (aa)  In  General. — See  note  87. 

(32)  Master  and  Servant. — See  note  10. 

(36)  Personalty — (b)  Mortgages  or  Liens. — Or  as  to  the  validity  of  an  un- 
recorded condition  sale  of  goods  delivered  to  bankrupts."' ^'^ 

(39)    Real  Estate — (b)  Deeds — cc.  Construction  and  Operation. — See  note  64. 

(45)  Taxation  and  Assessment — (a)  Taxation — bb.  Construction  of  State 
Lazi's  as  Binding  Federal  Courts — (aa)  In  General. — See  note  13. 


sur.  Societj'  of  United  States,  151  F.  1, 
81  C.  C.  A.  1,  reversed.  Equitable  Life 
Assur.  Soc.  V.  Brown,  213  U.  S.  25,  53  L- 
Ed.    682,    29    S.    Ct.    404. 

1079-17a.  Construction  of  indetermin- 
ate sentence  law. — -Ughbanks  v.  Arm- 
strong, 208  U.  S.  481,  52  L.  Ed.  582,  28  S. 
Ct.    372.      See    post,    CRIMINAL    LAW. 

1079-18.  Damages. — The  decision  of  the 
highest  court  of  a  state  upon  the  question 
whether  or  not  the  state  statutes  require 
claims  for  damages  because  of  poor  qual- 
ity of  material  for  the  purchase  price  of 
which  a  note  was  given  to  be  set  up  in  an 
action  on  the  note,  so  as  to  be  con- 
cluded by  the  judgment,  is  binding  on 
the  federal  courts.  Judgment,  Kirven  v. 
Virginia-Carolina  Chemical  Co.,  58  S.  E. 
424,  77  S.  C.  493,  affirmed.  Virginia-Car- 
olina Chemical  Co.  v.  Kirven,  215  U.  S. 
252,   54   L.    Ed.    179,   30    S.    Ct.   78. 

1079-19a.  Death  by  wrongful  act.— The 
-construction  by  the  highest  state  court  of 
a  statute  of  that  state  creating  a  right  of  ac- 
tion for  death  in  favor  of  the  surviving 
relatives  of  the  deceased  as  not  extend- 
ing to  such  relatives  as  are  nonresident 
aliens  must  be  accepted  by  the  federal 
supreme  court  on  a  writ  of  error  to  the 
state  court.  Judgment  65  A.  1077,  216 
Pa.  402,  116  Am.  St.  Rep.  778,  affirmed. 
Maiorano  v.  Baltimore,  etc.,  R.  Co.,  213 
U.  S.  268,  53  L.  Ed.  792,  29  S.  Ct.  424. 
See  post,  DEATH  BY  WRONGFUL 
ACT.  And  see,  also,  ante,  ADMIRALTY, 
p.  ]0. 

1088-70.  Construction  of  insurance 
policy. — The  meaning  and  construction  of 
a  policy  of  insurance  issued  by  a  New 
York  company,  and  both  executed  and 
to  be  carried  out  in  that  state,  as  de- 
clared by  the  highest  court  of  the  state, 
is  of  most  persuasive  influence,  even  if 
not  of  binding  force,  in  the  federal  courts, 
in  the  absence  of  any  federal  question 
arising  in  the  case.     Equitable  Life  Assur. 


Soc.  z:  Brown,  213  U.  S.  25,  53  L.  Ed.  682, 
39   S.    Ct.   404. 

1092-87.  Effect  of  state  statute  of  limi- 
tation in  federal  courts. — A  federal  court 
of  equity  will  apply,  in  a  suit  to  quiet 
title  as  against  the  purchaser  of  notes  for 
the  purchase  price  of  which  a  vendor's 
lien  has  attached,  the  rule  of  local  law 
that,  when  a  debt  is  barred  by  the  statute 
of  limitations,  an  action  to  foreclose  a  lien 
or  mortgage  given  as  security  for  the 
debt  is  also  barred.  Decree  Mansur  v. 
Dupree,  150  F.  329,  80  C.  C.  A.  213,  re- 
versed. Dupree  v.  Mansur,  214  U.  S.  161, 
53  L.  Ed.  950,  29  S.  Ct.  548.  See  post, 
LIMITATION  OF  ACTIONS  AND 
ADVERSE    POSSESSION. 

1096-10.  Master  and  servant — Fellow- 
servants  law. — The  federal  courts  will, 
in  cases  tried  in  them,  follow  their  own 
understanding  of  the  common  law,  when 
no  settled  rule  of  property  intervenes,  in 
determining  who  are  fellow  servants,  and 
will  determine  that  question  without  sub- 
mitting it  to  the  jury.  Beutler  v.  Grand 
Trunk,  etc.,  R.  Co.,  224  U.  S.  85,  56  L.  Ed. 
679,  32  S.  Ct.  402.  See  post,  MASTER 
AND  SERVANT.  See  ante,  "In  Gen- 
eral."  VIII,   J,   9.   a,    (1). 

1104-41a.  Validity  of  unrecorded  con- 
ditional sale. — Whether  a  contract  under 
which  goods  were  delivered  to  bankrupts 
was  a  conditional  sale,  and  valid  without 
record,  are  questions  on  which  a  bank- 
ruptcy court  follows  local  law.  Judg- 
ment, In  re  E.  M.  Newton  &  Co.,  153  F. 
841,  83  C.  C.  A.  23;  Swofford  Bros.  Dry 
Goods  Co.  V.  Bryant,  Id.  (1907)  affirmed. 
Bryant  z:  Swoflford  Bros.  Dry  Goods  Co., 
214  U.   S.  279,  53  L.   Ed.  997,  29  S.  Ct.   614. 

1109-64.  Deeds — Construction  and  op- 
eration.— See  ante,  "Reason  of  Rule," 
VII,   J,   2;    "In    General,"   VII,   J,   9,   a. 

1117-13.  Construction  of  taxation  stat- 
ute as  binding  federal  court. — The  con- 
struction by  the  highest  state  court  of  the 


426 


Vol.  IV, 


COURTS. 


1118-1127 


(ee)    Exemption  fro)]i  Taxation. — See  note  19. 

(50)  IVills — (c)  Construction. — See  note  45. 

(51)  Liens  and  Priorities. — It  will  be  presumed  that  the  circuit  court,  in  de- 
termining the  validity  of  liens  afiecting  property  in  its  possession,  will  consider 
the  decisions  of  the  courts  of  the  state  in  which  the  property  is  situated  with  that 
respect  which  the  decisions  of  the  federal  supreme  court  require.'* ^^ 

K.  Forms  and  Modes  of  Proceeding — 3.  Under  Practice  Conformity 
Act — a.  I)i  General. — See  note  50. 

b.  Origin  and  Purpose  of  Act. — See  post,  "Nature  and  Extent  of  Conformity 
Required,"  VII,  K,  3,  d. 

d.  Nature  and  Extent  of  Conformity  Required. — By  the  Practice  Conformity 
Act  it  was  not  intended  to  require  the  adoption  of  the  state  practice  where  it 
would  be  inconsistent  with  the  terms  or  defeat  the  purposes  of  the  legislation  of 
congress,^ ^^  but  to  secure  on  the  law  side  of  the  federal  courts  the  practice  which 


tax  imposed  by  Act  Ky.  March  28,  1906 
(Acts  1906,  p.  549  j,  upon  persons  engaged 
in  compounding,  rectifying,  adulterating, 
or  blending  distilled  spirits,  as  being  a 
license  or  occupation  tax,  and  not  a  prop- 
erty tax,  will  be  followed  by  the  federal  su- 
preme court.  Brown-Forman  Co.  v.  Com- 
monwealth, 217  U.  S.  563,  54  L.  Ed.  883, 
30  S.  Ct.  578,  affirming  judgment,  Brown- 
Foreman  Co.  z'.  Commonwealth  of  Ken- 
tucky,   101    S.    W.    321,    125    Ky.    402. 

1118-19.  Exemption  from  taxation. — 
The  construction  given  by  a  state  court 
to  the  immunity  of  railway  companies 
from  taxation,  granted  by  the  state  con- 
stitution as  extending  to  a  special  tax 
in  aid  of  another  railway  company,  is 
conclusive  on  the  federal  supreme  court 
in  determining,  on  writ  of  error  to  the 
state  court,  whether  such  constitutional 
provision  impairs  contract  obligations. 
Arkansas,  etc.,  R.  Co.  v.  Louisiana,  etc.,  R. 
Co.,  218  U.  S.  431,  54  L.  Ed.  1097,  31  S.  Ct. 
56,  affirming  decree  Louisiana  &  A.  Ry.  Co. 
-u.    Shaw,    46    So.    994,    121    La.    997. 

The  federal  supreme  court  will  not  con- 
strue a  state  statute  assessing  leaseholds 
and  making  the  tax  a  lien  upon  the  fee 
as  creating  a  lien  on  property  exempted 
from  taxation,  and  thereby  violating  the 
contract  clause  of  the  constitution  when 
the  state  court  has  not  so  construed  the 
statute  and  the  taxing  officers  of  the  state 
disclaim  an}-  intention  of  so  construing 
it  or  levying  any  tax  on  exempted  prop- 
erty. Jetton  z:  University,  208  U.  S.  489, 
52  L.  Ed.  584,  28  S.  Ct.  375. 

The  federal  supreme  court  while  not 
bound  by  the  construction  placed  on  a  state 
statute  by  the  state  court,  as  to  whether 
a  contract  was  created  thereby,  and  if  so 
how  it  should  be  construed,  gives  to  such 
construction  respectful  consideration,  and 
unless  plainly  erroneous  generally  fol- 
lows it;  a  decision  of  the  state  court, 
however,  that  a  leasehold  interest  in  ex- 
empted propertj'  can  not,  during  the 
exemption,  be  taxed  against  the  owner 
of  the  fee,  is  not  authority  to  be  followed 
by    the    federal    supreme    court,    on    the 


proposition  that  the  leasehold  interest 
can  not  be  taxed  without  impairing  the 
obligation  of  the  contract  of  exemption 
against  the  lessee  in  his  own  name  and 
against  -his  particular  interest  in  the  land. 
Jetton  v.  University,  208  U.  S.  489,  52  L. 
Ed.    584,    28    S.    Ct.    375. 

1122-45.  Construction  of  will. — See 
Kuhn  V.  Fairmont  Coal  Co.,  215  U.  S. 
349,  54  L.  Ed.  228,  30  S.  •  Ct.  140.  See 
post,   WILLS. 

No  sufficient  reason  exists  which  will 
justify  the  refusal  of  a  federal  court  to 
follow  the  decision  of  a  state  court  that 
the  sons  of  the  testator  took  not  mereh' 
a  life  estate,  but  a  fee,  subject  to  be  de- 
feated only  by  their  death  without  lineal 
descendants,  under  a  will  which,  after 
providing  that  the  testamentary  trustees 
shall  pay  over  a  moiety  to  each  son 
upon  his  attaining  a  specified  age,  states 
that  "if  either  of  my  sons  die  without 
lineal  descendants,  the  one  surviving  shall 
take  his  estate  above  bequeathed,  and  if 
the  survivor  die  without  lineal  descend- 
ants, then"  the  estate  shall  go  to  the 
brothers  and  sisters  of  the  testator,  with 
a  subsequent  provision  that  nothing  in 
the  will  shall  be  construed  to  deprive  the 
sons  of  the  power  to  dispose  of  their 
portions  by  will.  Messenger  v.  Anderson. 
225  U.  S.  436,  56  L.  Ed.  1152,  32  S.  Ct. 
739. 

1122-45a.  Liens  and  priorities. — Wabasii 
R.  Co.  c'.  Adalbert  College.  208  U.  S.  38. 
52    L.    Ed.    379,    28    S.    Ct.    182. 

1124-50.  Practice  Conformity  Act. — 
Boston,  etc..  Railroad  v.  Cokey,  210  U.  S. 
155,    52    L.    Ed.    1002,   28    S.    Ct.    657. 

1127-61a.  Nature  and  extent  of  con- 
formity required. — Hills  &  Co.  v.  Hoover, 
220  U.  S.  329,  55  L.  Ed.  485,  488,  31  S.  Ct. 
402,  citing  Luxton  v.  North  River  Bridge 
Co..  147  U.  S.  337,  338,  37  L.  Ed.  194,  13 
S.  Ct.  356:  Chapell  v.  United  States,  160 
U.  S.  499,  512,  40  L.  Ed.  510,  16  S.  Ct.  397. 

"State  statutes  which  defeat  or  encum- 
ber the  administration  of  the  law  under 
federal  statutes  are  not  required  to  be 
followed  in  the  federal  courts."     Hills  & 


427 


1127-1159 


COURTS. 


\o\.  IV. 


prevails  in  like  causes  in  the  courts  of  the  states.  Its  requirement  is  that  such 
proceeding  shall  conform  "as  near  as  may  be"  to  that  prevailing  in  the  state 
courts  "in  like  cases. "^^'' 

g.  Federal  Jurisdiction  Not  Affected  by  State  Practice — (1)  In  General. — 
See  note  78. 

(3)  State  Statute  Giving  Special  Appearanice  Effect  of  General  Appearance.— 
See  note  80. 

j.  With  Respect  to  What  Proceedings  Conformity  Is  Required — (3)  Appear- 
ance, Summons  and  Process — (b)  Summons  and  Process. — The  conformity  re- 
quirement does  not  necessitate  altering  a  rule  of  a  federal  circuit  court  as  to  the 
return  day  for  process,  adopted  in  conformity  with  a  state  practice  then  existing, 
so  as  to  conform  to  a  change  in  such  practice  made  by  subsequent  state  legisla- 
tion.'J^a 

(4)  Form  of  Action. — See  ante,  "Nature  and  Extent  of  Conformity  Re- 
quired," VII,  K,  3,  d. 

IX.  Territorial  Courts. 


C.  Powers  of  Territorial  Legislature. — See  note  85. 

E.  Jurisdiction — 1-.  District  Courts  of  Porto  Rico. — See  notes  3,  4. 


The 


Co.  V.  Hoover,  220  U.  S.  329,  55  L.  Ed. 
485,  488,  31  S.  Ct.  402,  citing  Mexican 
Cent.  R.  Co.  f.  Pinknev.  149  U.  S.  194,  207, 
37    L.    Ed.    699,    13    S.    Ct.    859. 

The  conformity  "as  near  as  may  be"  to 
the  state  practice,  enjoined  upon  the  fed- 
eral courts  by  Rev.  St.,  §  914  (U.  S.  Comp. 
St.  1901,  p.  684),  does  not  prevent  a  fed- 
eral court,  under  the  broad  powders  con- 
ferred by  section  716  .  (page  580),  from 
framing  its  process  and  writs  so  as  to 
give  full  relief  in  one  action  by  way  of 
the  forfeiture  and  penalties  prescribed  by 
section  4965  (page  3414),  in  case  of  the 
infringement  of  a  copyright  in  engravings, 
although  the  state  practice  inay  afford 
no  form  of  action  in  which  this  double 
remedy  may  be  enforced.  Hills  &  Co.  v. 
Hoover,  220  U.  S.  329,  55  L.  Ed.  485,  31 
S.   Ct.  402. 

1127-61b.  "Conformity"  as  near  as  may 
be — "In  like  cases." — Hills  &  Co.  f. 
Hoover,  220  U.  S.  329,  55  L-  Ed.  485,  488, 
31    S.    Ct.   402. 

In  fact,  the  language  of  the  statute  is 
itself  an  indication  that  the  state  prac- 
tice can  not  be  at  all  tiines  and  under 
all  circumstances  complied  with.  It  is 
enough  if  the  federal  courts,  in  adjudicat- 
ing the  rights  of  parties,  comply  with 
the  state  practice  "as  near  as  may  be." 
Hills  &  Co.  V.  Hoover,  220  U.  S.  329,  55 
L.    Ed.   485,   488,   31    S.    Ct.   402. 

"It  follows  that  where  the  state  statute, 
or  practice,  is  not  adequate  to  afford  the 
relief  which  congress  has  provided  in  a 
given  statute,  resort  must  be  had  to  the 
power  of  the  federal  court  to  adapt  its 
practice  and  issue  its  writs  and  admin- 
ister its  remedies  so  as  to  enforce  the 
federal  law."  Hills  &  Co.  v.  Hoover.  220 
U.   S.   329,   55   L.    Ed.  485,   31   S.   Ct.   402. 

1131-78.  Federal  jurisdiction  not  af- 
fected by  state  practice. — Western   Loan, 


etc.,  Co.  V.  Butte,  etc.,  Min.  Co.,  210  U.  S. 
368,   52   L.    Ed.   1101,  28    S.   Ct.   720. 

1132-80.     Effect    of    special    appearance. 

— Western  Loan,  etc.,  Co.  v.  Butte,  etc., 
Min.  Co.,  210  U.  S.  368.  52  L.  Ed.  1101, 
28    S.    Ct.    720. 

1137-99a.  Change  in  state  practice. — 
Boston,  etc.,  Railroad  v.  Gokey,  210  U.  S. 
155,  52  L.  Ed.  1002,  28  S.  Ct.  657,  affirm- 
ing  149    F.    42,    79    C.    C.    A.    64. 

1156-85.  Power  of  territorial  legisla- 
ture.— "Clearly,  under  these  sections  of 
the  Organic  Act  the  legislative  assembly 
had  express  authority  to  legislate  re- 
garding the  jurisdiction  and  procedure  of 
its  courts.  While  the  jurisdiction  of  the 
other  courts  might  be  changed,  the  proper 
interpretation  of  the  statute  prevents  the 
legislative  assembly  from  passing  an  act 
in  any  wise  affecting  the  jurisdiction  of 
the  supreme  court  or  the  district  courts." 
Ponce  V.  Roman  Catholic  Apostolic 
Church,  210  U.  S.  296,  52  L.  Ed.  1068, 
1073.  28  S.  Ct.  737. 

The  power  of  the  legislative  assembly 
of  Porto  Rico  to  confer,  by  Act  March 
10,  1904,  original  jurisdiction  upon  the 
supreme  court  of  Porto  Rico  for  the  trial 
and  adjudication  of  questions  between 
the  Roman  Catholic  Church  and  the  peo- 
ple or  any  municipality,  affecting  prop- 
ert}'  rights,  was  embraced  in  the  express 
authority  conferred  by  Eoraker  Act  April 
12,  1900,  c.  191.  §§  8,  15,  33,  31  Stat.  77, 
to  legislate  regarding  the  jurisdiction  and 
procedure  of  the  Porto  Rican  courts. 
Municipality  of  Ponce  v.  Roman  Catholic 
Apostolic  Church,  210  U.  S.  296,  52  L.  Ed. 
1068,    28    S.    Ct.    737. 

1159-3.  Jurisdiction  same  as  circuit 
courts.— The  Eoraker  Act  of  1900  (31 
Stat,  at  L.  77,  chap.  191),  "gave  to  the 
district  court  for  Porto  Rico  the  juris- 
diction    of     the     United     States     district 


428 


Vol.  IV 


COURTS. 


1159-1161 


jurisdiction  of  such  court  extends  to  all  controversies  where  both  parties  or  ei- 
ther of  them  are  citizens  or  subjects  of  a  foreign  state.'*'' 

A  Spanish  corporation  is  no  longer  a  foreign  citizen.  Its  field  of  opera- 
tion being  limited  to  Porto  Rico,  the  ratified  treaty  of  peace  extended  to  and  in- 
cluded it.-**^ 

The  district  of  Porto  Rico  embraces  authority  to  entertain  and  dispose  of 
all  actions,  whether  real  or  personal,  necessarily  incidental  to  the  accomplishment 
of  the  powers  granted  over  estates.^'^ 

G.  Effect  of  Admission  of  Territory  as  State — 2.  Transfer  of  Pending 
Causes  on  Admission — a.   Xecessity  for  Cause  to  Be  Pending. — See  note  9. 


courts,  and  added  to  that  the  jurisdiction 
of  cases  cognizable  in  circuit  courts  of 
the  United  States."  Cuebas  Y  Arredondo 
V.  Cuebas  Y  Arredondo,  223  U.  S.  376,  56 
L.    Ed.   476,    32    S.    Ct.   277. 

The  jurisdiction  of  the  district  court 
of  the  United  States  for  Porto  Rico  which, 
under  the  Act  of  March  2,  1901  (31  Stat. 
at  L.  953,  chap.  812),  §  3,  extends  to  con- 
troversies where  the  parties  or  either  of 
them  are  citizens  of  the  United  States, 
or  citizens  or  subjects  of  a  foreign  state, 
does  not  embrace  a  suit  to  foreclose  a 
mortgage  in  which  one  of  the  three  de- 
fendants is  a  citizen  of  the  United  States, 
while  the  other  two  are  citizens  of  Porto 
Rico,  as  is  also  the  claimant.  Cuebas  Y 
Arredondo  v.  Cuebas  Y  Arredondo,  223 
U.    S.   376,   56   L.    Ed.   476,   32    S.   Ct.   277. 

A  mere  reference  in  a  bill  in  equity  to 
the  provisions  of  an  order  of  the  military 
governor  of  Porto  Rico  does  not  present 
a  controversy  arising  under  the  laws  of 
the  United  States,  of  which  the  federal 
district  court  for  Porto  Rico  would  have 
jurisdiction  without  regard  to  the  citizen- 
ship of  the  parties,  even  if  such  order  be 
treated  as  a  law  of  the  United  States, 
where  the  bill  does  not  call  the  attention 
of  the  court  to  a  controversy  arising 
under  such  order,  in  such  a  wSy  as  to 
invoke  the  court's  action  thereon.  Fraenkl 
V.  Cerecedo  Hermanos,  216  U.  S.  295,  54 
L.    Ed.   486,   30    S.    Ct.   322. 

1159-4.  Suits  between  aliens. — Martinez 
V.  La  Ass'n,  etc.,  de  Ponce,  213  U.  S.  20, 
53    L.    Ed.    679,   29    S-    Ct.    327. 

1159-4a.  One  or  both  parties  foreigners. 
— Martinez  :■.  La  Ass'n,  etc.,  de  Ponce, 
213   U.   S.   20,   53   L.    Ed.   679,  29    S.   Ct.   327. 

1159-4b.  Spanish  corporation. — A  cor- 
poration created  by  a  decree  of  the  Span- 
ish crown  for  charitable  purposes,  and 
limited  in  its  field  of  operations  to  Porto 
Rico,  does  not  continue,  after  the  ratifica- 
tion of  the  treaty  of  peace  between  the 
United  States  and  Spain,  to  be  a  citizen 
or  subject  of  Spain,  within  the  meaning 
of  Act  March  a,  1901,  c.  812,  §  3,  31  Stat. 
■953,  extending  the  jurisdiction  of  the  dis- 
trict court  of  the  United  States  for  Porto 
Rico  to  controversies  where  the  parties 
or  either  of  them  are  citizens  or  subjects 
•of  a  foreign  state.     Martinez  v.  La  Asso- 


ciation, etc.,  de  Ponce,  213  U.  S.  20,  53  L. 
Ed.   679,  29   S.   Ct.  327. 

A  charitable  corporation  created  by  de- 
cree of  the  Spanish  crown  to  operate  in 
Porto  Rico  is  not  a  citizen  of  the  United 
States  within  the  meaning  of  Act  March 
2,  1901,  c.  812,  §  3,  31  Stat.  953,  extending 
the  jurisdiction  of  the  district  court  for 
Porto  Rico  to  controversies  where  the 
parties  or  either  of  them  are  citizens  of 
the  United  States,  but,  since  the  enact- 
ment of  Act  April  12,  1900,  c.  191,  31 
Stat.  77,  establishing  a  civil  government 
for  Porto  Rico,  is,  if  a  citizen  of  any 
country,  a  citizen  of  Porto  Rico.  Mar- 
tinez zi.  La  Association,  etc.,  de  Ponce,  213 
U.   S.  20,   53   L.   Ed.   679,  29   S.   Ct.   327. 

1159-4C.  District  court  of  Porto  Rico. 
— Garzot  V.  Rubio,  209  U.  S.  283,  52  L. 
Ed.   794,  28   S.   Ct.   548. 

The  Porto  Rican  courts,  as  an  incident 
of  their  general  and  probate  authority 
and  their  power  over  all  personal  and 
real  actions  concerning  decedents'  estates, 
have  jurisdiction  to  determine  whether  a 
decedent's  estate  has  been  closed  by  a 
family  settlement  which  is  attacked  as 
fraudulent,  to  determine  whether  the 
property  transferred  to  the  widow  by 
such  settlement  still  remains  a  part  of  the 
estate,  and  to  liquidate  and  settle  the 
community  existing  between  the  husband 
and  wife.  Garzot  v.  Rubio,  209  U.  S.  283, 
52   L.    Ed.   794,   28   S.   Ct.   548. 

The  district  court  of  the  United  States 
for  the  District  of  Porto  Rico  has  no 
jurisdiction  of  a  bill  which  seeks  to  ad- 
minister decedents'  estates  which  are  open 
in  a  local  court  and  subject  to  the  power 
and  authority  of  such  court,  because  such 
bill  also  seeks  to  liquidate  a  community 
existing  between  husband  and  wife,  to  an- 
nul for  fraud  a  family  settlement  of  the 
estates,  and  to  set  aside,  as  simulated  and 
fraudulent,  sales  made  in  virtue  of  the 
title  apparently  vested  by  such  settle- 
ment, where  the  relief  sought  in  this  re- 
gard is  merely  ancillary  to  the  prayer  for 
the  liquidation  and  settlement  of  the  es- 
tates. Garzot  z:  Rubio,  209  U.  S.  283,  52 
L.    Ed.    794,    28    S.    Ct.    548. 

1161-9.  Necessity  for  cause  to  be  pend- 
ing.— A  homicide  cause,  the  venue  of 
which   had  been  changed  conformably  to 


429 


1169-1171 


COURTS. 


Vol.  IV. 


XII.   Exclusive,   Concurrent  and  Conflicting  Jurisdiction. 

A.  Exclusive  or  Concurrent  Jurisdiction — 1.  As  be^tween  State  and 
Federai,  Courts — b.    Suits  betzvcen  Citizens  of  Different  States. — See  note  52. 

c.  Suits  Arising  under  Constitution,  Lazus  or  Treaties. — The  rights  arising 
under  the  federal  employer's  liability  act  may  be  enforced,  as  of  right,  in  the 
courts  of  the  states  when  their  jurisdiction,  as  prescribed  by  local  laws,  is  ade- 
quate to  the  occasion. ^•^'^ 

g.   Suits  in  Admiralty. — See  ante,  Admiralty,  p.  10. 

4.  Comity  between  Courts  of  Concurrent  Jurisdiction. — See  ante,  "Duty 
to  Decide  Questions,"  VI,  A. 

B.  Conflict  between  Courts  of  Concurrent  Jurisdiction — 1.  Rutuntion 
OF  Jurisdiction  by  Court  First  Acquiring  It — a.  In  General. — See  note  60.    A 


Act  June  28,  1898,  c.  517,  §  29,  30  Stat. 
511,  because  of  the  Indian  citizenship  of 
the  accused,  from  the  United  States  court 
in  the  Indian  territory  to  the  Federal 
district  court  at  Paris,  Texas,  was  not 
pending  in  the  United  States  court  in  the 
Indian  territory,  within  the  meaning  of 
the  provisions  of  the  Oklahoma  Enab- 
ling Act  (Act  June  16,  1906,  c.  3335,  §  20, 
34  Stat.  277),  as  amended  by  Act  March 

4,  1907,  c.  2911,  §  3,  34  Stat.  1287,  for  the 
transfer  to  the  Oklahoma  courts  of  all 
cases  pending  in  the  United  States  courts 
of  Oklahoma  and  Indian  territories,  not 
transferred  to  the  United  States  circuit 
or  district  courts  in  the  state  of  Okla- 
homa.    Hendrix  v.  United  States,  219  U. 

5.  79,  55  L.  Ed.  102,  31  S.  Ct.  193. 
1169-52.  Suits  between  citizens  of  dif- 
ferent states. — The  federal  circuit  court 
for  the  District  of  Nevada  and  the  Cal- 
ifornia state  courts  have  concurrent  juris- 
diction to  determine  the  relative  rights 
of  parties  claiming,  the  one  in  Nevada 
and  the  other  in  California,  to  be  entitled 
to  appropriate,  as  against  each  other,  the 
waters  of  an  interstate  stream.  (1910) 
Rickey  Land,  etc.,  Co.  v.  Miller,  218  U.  S. 
258,  54  L.  Ed.  1032,  31  S.  Ct.  11,  affirming 
decrees  (1907)  152  F.  11,  22,  81  C.  C.  A. 
207,  218. 

t'The  rule  is  well  recognized  that  the 
pendency  of  an  action  in  the  state  court 
is  no  bar  to  proceedings  concerning  the 
same  matter  in  the  federal  court  having 
jurisdiction,  for  both  the  state  and  fed- 
eral courts  have  certain  concurrent  juris- 
diction over  such  controversies,  and 
when  they  arise  between  citizens  of  dif- 
ferent states  the  federal  jurisdiction  may 
be  invoked,  and  the  cause  carried  to 
judgment,  notwithstanding  a  state  court 
may  also  have  taken  jurisdiction  of  the 
same  case."  McClellan  v.  Carland,  217 
U.  S.  268,  54  L.  Ed.  762,  767,  30  S.  Ct.  501. 

1169-53a.  Suit  arising  under  federal 
Employer's  Liability  Act. — Second  Em- 
ployers' Liability  cases,  223  U.  S.  1,  56  L. 
Ed.    327,    32    S.     Ct.     169. 

The  enforcement  of  rights  under  Em- 
ployer's Liability  Act  April  22,  1908,  c. 
149,   35    Stat.    65    (U.    S.    Comp.    St.    Supp. 


1909,  p.  1171),  regulating  the  liability  of 
interstate  railway  carriers  for  the  death 
or  injury  of  their  employees  while  en- 
gaged in  interstate  commerce,  can  not  be 
regarded  as  impliedly  restricted  to  the 
federal  courts,  in  view  of  the  concurrent 
jurisdiction  provision  of  Judiciary  Act 
Aug.  13,  1888,  c.  866,  §  1,  25  Stat.  433 
(U.  S.  Comp.  St.  1901,  p.  508),-  and  of  the 
amendment  made  by  Act  April  5,  1910,  c. 
143,  36  Stat.  291,  to  the  original  employers' 
liability  act,  which,  instead  of  granting 
jurisdiction  to  the  state  courts,  presup- 
poses that  they  already  possess  it.  (1912) 
Second  Employers'  Liability  Cases,  223 
U.  S.  1,  56  L.  Ed.  327,  32  S.  Ct.  169,  re- 
versing judgment  (1909)  73  A.  762,  82 
Conn.    373. 

Jurisdiction  of  an  action  to  enforce  the 
rights  arising  under  Employer's  Liability 
Act  April  22,  1908,  c.  149,  35  Stat.  65  (U. 
S.  Comp.  Supp.  1909,  p.  1171),  regulating 
the  liability  of  interstate  railway  carriers 
for  the  death  or  injury  of  their  employees 
while  engaged  in  interstate  commerce, 
may  not  be  declined  by  the  courts  of  a 
state  whose  ordinary  jurisdiction  as  pre- 
scribed by  local  laws  is  adequate  to  the 
occasion,  on  the  theory  that  such  statute 
is  not  in  harmony  with  the  policy  of  the 
state,  or  that  the  exercise  of  such  juris- 
diction will  be  attended  by  inconvenience 
and  confusion  because  of  the  different 
standards  of  right  established  by  the  con- 
gressional act  and  those  recognized  by 
the  laws  of  the  state.  Second  Employers' 
Liability  Cases,  223  U.  S.  1,  56  L.  Ed.  327, 
32  S.  Ct.  169,  reversing  judgment  (1909) 
73    A.    762,    82    Conn.    373. 

1171-60.  Retention  of  jurisdiction. 
—Murphy  v.  Hofman  Co.,  211  U.  S.  562, 
53  L.  Ed.  327,  29  S.  Ct.  154;  Palmer  v. 
Texas,  212  U.  S.  118,  53  L.  Ed.  435,  29  S. 
Ct.    230. 

The  federal  circuit  court  for  the  Dis- 
trict of  Nevada,  and  the  California  state 
courts,  having  concurrent  jurisdiction  to 
determine  the  relative  rights  of  parties 
claiming,  the  one  in  Nevada  and  the  other 
in  California,  to  be  entitled  to  appropri- 
ate as  against  each  other  the  waters  of 
an  interstate  stream,  whichever  court  first 


430 


Vol.  I\^ 


COURTS. 


1171-1173 


federal  court,  in  which  is  first  raised  the  question  of  the  validity,  under  the  federal 
constitution,  of  a  state  statute,  has  a  right  to  decide  that  question  to  the  exclu- 
sion of  the  state  courts,  and  may  enjoin  criminal  proceedings  subsequently  com- 
menced under  it  in  the  state  court  until  its  duty  is  performed.*^*^'' 

b.  Necessity  for  Identity  of  Causes. — See  note  61. 

c.  Property  in  Custody  of  Court — (1)  General  Rule. — See  note  62.  For  the 
purpose  of  avoiding  injustice  which  otherwise  might  result,  a  court  during  the 
continuance  of  its  possession  has,  as  incident  thereto  and  as  ancillary  to  the  suit 
in  which  the  possession  was  acquired,  jurisdiction  to  hear  and  determine  all  ques- 
tions respecting  the  title,  the  possession  or  the  control  of  the  property.^-'' 

(2)  Mode  of  Procuring  Custody— (h)  Seizure  under  Execution. — See  post, 
Executions. 

(c)  Seizure  under  Attachment. — See  ante.  Attachment  and  Garnishment, 
p.   156. 

(d)  Appointment  of  Receiver. — As  to  appointment  of  receiver  by  state  or 
federal  courts,  as  drawing  to  the  court  making  the  appointment  the  right  to  de- 
cide all  questions  afifecting  the  receivership,  see  post.  Receivers. 

d.  A p plication  of  Rules  as  hetzveen  State  and  Federal  Courts — (1)  In  Gen- 
eral.— See  note  70. 


acquires  jurisdiction  is  entitled  to  pro- 
ceed to  final  determination  without  inter- 
ference from  the  other.  (1910)  Rickey- 
Land,  etc.,  Co.  V.  Miller,  218  U.  S.  2.58,  54 
L.  Ed.  1032,  31  S.  Ct.  11,  affirming  de- 
crees (1907)  152  F.  11,  22,  81  C.  C.  A. 
207,    218. 

1171-60a.  Federal  question — Constitu- 
tionality of  statute. — Ex  parte  Young, 
209  U.   S.  123,  52  L.  Ed.  714,  28  S.  Ct.  441. 

1172-61.  Identity  of  causes. — The  pend- 
ency in  a  state  court  of  a  suit  in  the  na- 
ture of  quo  warranto,  seeking  a  determi- 
nation as  to  the  persons  who  were  the 
true  and  lawful  members  of  the  board  of 
publication  of  the  Cumberland  church 
after  the  alleged  union  with  the  Presby- 
terian church,  is  not  bar  to  a  suit  in  the 
federal  courts  to  enforce  the  alleged 
rights  of  the  members  of  the  United 
church  to  control  the  said  board,  and  to 
have  the  benefit  of  the  board's  property  in 
its  denominational  work,  regardless  of  the 
personnel  of  the  board.  Helm  v.  Zarecor, 
222  U.  S.  32,  56  L.  Ed.  77,  78,  32  S.  Ct.  10. 

1172-62.  Property  in  custody  of  court. — 
Murphy  v.  Hofman  Co.,  211  U.  S.  563,  53 
L.  Ed.  327,  29  S.  Ct.  154;  Palmer  v.  Texas, 
212  U.  S.  118,  53  L.  Ed.  435,  29  S.  Ct.  230. 

"When  a  court  of  competent  jurisdic- 
tion has,  by  appropriate  proceedings,  taken 
property  into  its  possession  through  its 
officers,  the  property  is  withdrawn  from 
the  jurisdiction  of  all  other  courts."  Wa- 
bash R.  Co.  V.  Adelbert  College,  208  U.  S. 
38,  54,  52  L.  Ed.  379,  28  S.  Ct.  182. 

"The  latter  courts,  though  of  concurrent 
jurisdiction,  are  without  power  to  render 
any  judgment  which  invades  or  disturbs 
the  possession  of  the  property  while  it  is 
in  the  custody  of  the  court  which  has 
seized  it."  Wabash  R.  Co.  v.  Adelbert 
College,  208  U.  S.  38,  54,  52  L.  Ed.  379,  28 
S.  Ct.  182. 


"In  the  courts  of  the  United  States  this 
incidental  and  ancillary  jurisdiction  ex- 
ists, although  in  the  subordinate  suit  there 
is  no  jurisdiction  arising  out  of  diversity 
of  citizenship  or  the  nature  of  the  contro- 
versy." Wabash  R.  Co.  v.  Adelbert  Col- 
lege, 208  U.  S.  38,  54,  52  L.  Ed.  379,  28  S. 
Ct.  182. 

1172-62a.  Right  to  determine  title  pos- 
session and  control. — Wabash  R.  Co.  v. 
Adelbert  College,  208  U.  S.  38,  54,  52  L. 
Ed.  379,  28  S.  Ct.  182. 

1173-70.  Conflict  between  state  and  fed- 
eral court. — Murphy  v.  Hofman  Co.,  211 
U.  S.  562,  53   L.  Ed.  327,  29  S.  Ct.  154. 

"This  rule  has  been  applied  by  this 
court  in  many  cases,  some  of  which  are 
cited,  sometimes  in  favor  of  the  jurisdic- 
tion of  the  courts  of  the  states  and  some- 
times in  favor  of  the  jurisdiction  of  the 
courts  of  the  United  States,  but  always,  it 
is  believed,  impartially  and  with  a  spirit 
of  respect  for  the  just  authority  of  the 
states  of  the  Union."  Wabash  R.  Co.  v. 
Adelbert  College,  208  U.  S.  38,  54,  53  L. 
Ed.  379,  28  S.  Ct.  182,  citing  Hagan  v.  Lu- 
cas, 10  Pet.  400,  9  L.  Ed.  470;  Williams  v. 
Benedict,  8  How.  107,  12  L.  Ed.  1007;  Wis- 
wall  V.  Sampson.  14  How.  52,  14  L.  Ed. 
322;  Peale  v.  Phipps,  14  How.  367,  368,  14 
L.  Ed.  459;  Pulliam  v.  Osborne,  17  How. 
470,  15  L.  Ed.  154;  Taylor  v.  Carryl,  20 
How.  583,  15  L.  Ed.  1028;  Freeman  v. 
Howe.  24  How.  450,  16  L.  Ed.  749;  Buck 
c'.  Colbath,  3  Wall.  334,  18  L.  Ed.  257;  Yon- 
ley  V.  Lavender,  21  Wall.  276,  22  L.  Ed. 
536;  People's  Bank  v.  Calhoun,  102  U.  S. 
256,  56  L.  Ed.  101;  Barton  v.  Barbour,  104 
U.  S.  126,  26  L.  Ed.  672;  Krippendorf  v. 
Hyde,  110  U.  S.  276.  25  L.  Ed.  145,  4  S.  Ct. 
27;  Pacific  Railroad  v.  Missouri  Pac.  R. 
Co.,  Ill  U.  S.  505.  28  L.  Ed.  498,  4  S.  Ct. 
583;  Covell  v.  Hevman,  111  U.  S.  176,  28 
L.  Ed.  390,  4  S.  Ct.  355;  Heidritter  v.  EHz- 


431 


1174-1176 


COURTS. 


Vol.  IV. 


(2)  Property  in  Custody  of  Federal  Court. — See  note  72. 

(3)  Property  in  Custody  of  State  Court. — See  note  74. 

(4)  Conflict  betzveen  federal  and  Probate  Courts. — See  note  76. 

(5)  Bankruptcy  Proceedings.— See  ante,  Bankruptcy,  p.  168. 


abeth  Oil-Cloth  Co.,  112  U.  S.  294,  28  L. 
Ed.  728,  5  S.  Ct.  135;  Gunibel  v.  Pitkin,  124 
U.  S.  13],  31  L.  Ed.  374,  8  S.  Ct.  379;  John- 
son V.  Christian,  125  U.  S.  .642,  31  L.  Ed. 
820,  8  S.  Ct.  989;  Morgan's,  etc..  Steamship 
Co.  V.  Texas  Cent.  R.  Co.,  137  U.  S.  171,  34 
L.  Ed.  625;  Porter  v.  Sabin,  149  U.  S.  473, 
37  L.  Ed.  815. 

"Those  principles  are  of  general  appli- 
cation and  not  peculiar  to  the  relations  of 
the  courts  of  the  United  States  to  the 
courts  of  the  states;  they  are,  however,  of 
especial  importance  with  respect  to  the  re- 
lations of  those  courts,  which  exercise  in- 
dependent jurisdiction  in  the  same  terri- 
tory, often  over  the  same  property,  per- 
sons, and  controversies."  Wabash  R.  Co. 
V.  Adelbert  College,  208  U.  S.  38,  54.  52  L. 
Ed.  379,  28  S.  Ct.  182. 

"They  are  not  based  upon  any  supposed 
superiority  of  one  court  over  the  others, 
but  serve  to  prevent  a  conflict  over  the 
possession  of  property,  which  would  be 
unseemly  and  subversive  of  justice."  Wa- 
bash R.  Co.  V.  Adelbert  College,  208  U.  S. 
38,  54,  52  L.   Ed.  379.  28  S.  Ct.  182. 

1174-72.  Property  in  custody  of  federal 
court. — To  adjudge  that  certain  railroad 
equipment  bonds  are  a  lien  upon  the  rail- 
road property  is  beyond  the  power  of  a 
state  court,  where  that  court,  by  reasori  of 
the  possession  of  the  res  by  a  federal 
court,  is  without  power  to  decree  a  sale  of 
the  property  to  satisfy  the  lien,  and  the 
declaration  of  the  lien  is  sought  only  as 
an  essential  part  of  the  order  of  sale. 
Wabash  R.  Co.  v.  Adelbert  College,  208 
U.  S.  38,  52  L.  Ed.  379,  28  S.  Ct.  182,  denied. 
S.  C,  208  U.  S.  609,  52  L-  Ed.  642.  28  S.  Ct. 
425. 

1175-74.  Property  in  custody  of  state 
court. — Palmer  v.  Texas,  212  U.  S.  118,  53 
L.  Ed.  435,  29  S.  Ct.  230,  modifying  158 
Fed.  705. 

1176-76.  Conflict  between  federal  and 
probate  court. — A  suit  within  the  original 
jurisdiction  of  a  federal  circuit  court,  to 
have  the  complainants  adjudicated  to  be 
the  heirs  at  law  and  next  of  kin  of  a  dece- 
dent, can  not  be  stayed  by  that  court  to 
await  the  commencement  and  prosecution 
to  final  determination  of  a  suit  to  be 
brought  in  a  state  court,  on  behalf  of  the 
state,  to  determine  an  escheat  of  the  es- 
tate. McClellan  v.  Carland,  217  U.  S.  268, 
54  L.  Ed.  762,  30  S.  Ct.  501. 

A  federal  court  of  chancery  has  jurisdic- 
tion, where  the  proper  diversity  of  citizen- 
ship exists,  to  determine  the  interest  of  an 
heir  in  an  alleged  lapsed  legacy  and  the 
consequent  increase  in  the  residuary  es- 
tate, although  the  bill  also  asks  other  relief 
which  can  not  be  granted  because  it  would 


interfere  with  the  ordinary  settlement  of 
the  estate  in  the  state  probate  court. 
Waterman  v.  Canal-Louisiana  Bank,  etc., 
Co.,  215  U.  S.  33,  54  L.  Ed.  80,  30  S.  Ct.  10. 

"While  the  court  could  make  no  decree 
which  would  interfere  with  the  possession 
of  the  probate  court,  it  had  jurisdiction  to 
entertain  the  bill  and  to  render  a  judgment 
binding  upon  the  parties."  Waterman  v. 
Canal-Louisiana  Bank,  etc.,  Co.,  215  U.  S. 
33,  54  L.  Ed.  80,  30  S.  Ct.  10. 

"The  right  of  the  circuit  court  to  main- 
tain such  actions,  notwithstanding  the 
legislation  of  the  state  creating  probate 
courts,  has  been  so  recently  before  this 
court  as  to  require  no  further  considera- 
tion now.  Waterman  v.  Canal-Louisiana 
Bank,  etc.,  Co.,  215  U.  S.  33,  54  L.  Ed.  80, 
30  S.  Ct.  10.  In  that  case,  following  pre- 
vious decisions  of  this  court,  it  was  held 
that  the  chancery  jurisdiction  of  the  fed- 
eral courts  to  entertain  suits  between 
citizens  of  different  states  to  determine 
interests  in  estates,  and  to  have  the  same 
fixed  and  declared,  having  existed  from 
the  beginning  of  the  federal  government, 
and  created  by  the  grant  of  equity  juris- 
diction to  such  courts  as  it  existed  in  the 
chancery  courts  of  England,  could  not  be 
impaired  by  subsequent  state  legislation 
creating  courts  of  probate.  The  action 
was  therefore  within  the  jurisdiction  of 
the  circuit  court  of  the  United  States." 
McClellan  r.  Carland,  217  U.  S.  268,  54  L. 
Ed.  762,  30  S.  Ct.  501. 

The  jurisdiction  of  a  federal  circuit  court 
of  a  controversy  between  citizens  of  dif- 
ferent states,  presented  by  a  bill  which 
seeks  to  declare  and  foreclose  an  attor- 
ney's lien  upon  certain  interests  in  the  dis- 
tributive shares  of  the  property  of  a  de- 
cedent within  the  district,  is  not  defeated 
because  the  settlement  of  the  estate  is 
pending  in  a  state  probate  court,  where  no 
interference  with  that  court  is  sought  or 
decreed,  and  rights  between  the  parties 
arising  from  their  transactions  and  con- 
tracts are  adjudged  and  are  decreed  to  be 
redressed  only  when  the  probate  court 
shall  have  finishecj  its  functions.  Decree, 
Coram  v.  IngersoU  (1906),  148  Fed.  169, 
78  C.  C.  A.  303,  reversed.  IngersoU  v.  Co- 
ram. 211  U.  S.  335,  53  L.  Ed.  208,  29  S. 
Ct.  92. 

"In  Byers  v.  McAuley,  149  U.  S.  608,  37 
L.  Ed.  867,  the  rule  was  thus  tersely  stated 
by  Mr.  Justice  Brewer,  delivering  the 
opinion  of  the  court:  'A  citizen  of  another 
state  may  establish  a  debt  against  the  es- 
tate. Yonley  v.  Lavender,  21  Wall.  276, 
22  L.  Ed.  536;  Hess  i'.  Reynolds,  113  U. 
S.  73,  38  L.  Ed.  927,  5  S.  Ct.  377.  But  the 
debt  thus  established  must  take  its  place 


432 


Vol.  V. 


CREDITORS. 


1177-21 


(6)  In  Criminal  Cases. — As  to  conflicting  and  concurrent  jurisdiction  be- 
tween state  courts  or  between  state  and  federal  courts,  between  federal  and 
territorial  courts  or  between  federal  and  territorial  courts  and  courts  of  the 
Indian  tribes,  in  criminal  cases,  see  post.  Criminal  Law.  As  to  habeas  corpus 
from  federal  to  state  courts,  see  post,  Habeas  Corpus. 

2.  Termination  of  Proceeding  in  Court  First  xAcquiring  Jurisdiction. — 
When  the  property  passes  out  of  the  actual  possession  of  the  United  States 
courts,  in  conformity  with  their  decrees,  into  the  hands  of  the  purchasers  under 
the  decrees,  the  exclusive  jurisdiction  of  the  United  States  courts  comes  to  an 
end.''*''  But  the  court  may  part  with  the  possession  of  the  property  only  condi- 
tionally, and  preserve  complete  control  over  it,  and  full  jurisdiction  over  the 
claims  which  might  be  against  it."^*" 

C.  Conflict  between  Civil  and  Military  Courts. — See  post,  Military  Law. 

COURTS-MARTIAL,— See  post,  Military  Law. 

COVENANT,  ACTION  OF.— See  the  title  Covenant,  Action  oe,  vol.  5,  p.  1, 
and  references  there  given. 

COVENANTS. — See  the  title  Covenants,  vol.  5,  p.  5,  and  references  there 
given. 

COVERTURE.— See  post.  Husband  and  Wife. 

CREDIT. — See  ante.  Banks  and  Banking,  p.  184:  post,  Set-Off,  Recoup- 
ment and  Counterclaim.  As  to  full  faith  and  credit  clause,  see  post,  Foreign- 
Judgments,  Records  and  Judicial  Proceedings. 

CREDITORS.— See  note  1. 


and  share  of  the  estate  as  administered  by 
the  probate  court;  and  it  can  not  be  en- 
forced by  process  directly  against  the 
property  of  the  decedent.  Yonley  z'.  Lav- 
ender, supra.  In  like  manner,  a  distrib- 
utee, citizen  of  another  state,  may  estab- 
lish his  right  to  share  in  the  estate,  and 
enforce  such  adjudication  against  his  ad- 
ministrator personally,  or  his  sureties 
(Payne  v.  Hook,  7  Wall.  425.  19  L.  Ed. 
260);  or  against  any  other  parties  subject 
to  liability  (Borer  v.  Chapman.  119  U.  S. 
587,  30  L.  Ed.  532,  7  S.  Ct.  342),  or  in  any 
other  way  which  does  not  disturb  the  pos- 
session of  the  property  by  the  state  court.'  " 
Waterman  v.  Canal-Louisiana  Bank,  etc., 
Co.,  215  U.  S.  33,  54  L.  Ed.  80,  30  S.  Ct.  10. 

1177-78a.  When  exclusive  control 
ceases. — Wabash  R.  Co.  r.  Adelbert  Col- 
lege, 208  U.  S.  38,  46,  52  L.  Ed.  379,  28 
S.    Ct.    182. 

As  to  the  termination  of  custody  of 
property  in  hands  of  receiver,  see  post, 
RECEIVERS. 

1177-78b.  Parting  with  possession  condi- 
tionally.—Wabash  R.  Co.  z'.  Adelbert  Col- 
lege. 208  U.  S.  38,  53,  52  L  Ed.  379,  28  S. 
Ct.  182. 

The  exclusive  jurisdiction  of  a  federal 
circuit  court  arising  out  of  the  possession 
of  the  res  in  a  suit  to  foreclose  a  railroad 
mortgage  may  be  so  continued,  after  the 
delivery  of  the  property  to  the  purchaser 
tinder  the  foreclosure  decree  and  the  dis- 
charge of  the  receiver,  by  reserving  in 
such  decree  jurisdiction  over  the  property 
and  claims  in  respect  to  it,  and  the  right 
to  take  it  again' into  possession  and  exer- 

12    U    S    Enc— 28  433 


cise  again  the  power  of  sale,  as  to  pre\ent 
a  state  court  from  thereafter  decreeing  a 
sale  of  the  property  to  satisfy  the  lien  of 
certain  equipment  bonds  in  a  suit  begun 
before  the  property  was  taken  into  posses- 
sion of  the  federal  court.  Decree  (Sup. 
1906),  78  N.  E.  1141,  74  Ohio  St.  483.  re- 
versed. Wabash  R.  Co.  v.  Adelbert  Col- 
lege, 208  U.  S.  38.  52  L.  Ed.  379,  28  S.  Ct. 
182.  rehearing  denied.  S.  C,  208  U.  S.  609, 
52  L.  Ed.  642,  28  S.  Ct.  425. 

"The  effect  of  reservations  in  a  decree  of 
foreclosure,  which  to  say  the  least  were 
no  broader  than  those  in  this  decree,  was 
before  the  court  in  Julian  v.  Central  Trust 
Co.,  193  U.  S.  93,  48  L.  Ed.  629.  The  res- 
ervations in  that  case  are  stated  on  page 
110,  and  of  them  the  court  said,  p.  Ill:  'It 
is  obvious  that  by  this  decree  of  sale  and 
confirmation  it  was  the  intention  and  pur- 
pose of  the  federal  court  to  retain  juris- 
diction over  the  cause  so  far  as  was 
necessary  to  determine  all  aliens  and  de- 
mands to  be  paid  by  the  purchaser.'  "  Wa- 
bash R.  Co.  z:  Adelbert  College,  208  U.  S. 
38,  56,  52   L.   Ed.  379,  28  S.  Ct.  182. 

21-1.  Bankruptcy. — Within  the  terms  of 
the  bankrupt  law,  a  creditor  is  defined  to 
include  any  one  who  owns  a  demand  or 
claim  provable  in  bankruptcy.  Richard- 
son c'.  Shaw,  209  U.  S.  365.  52  L.  Ed.  835, 
28  S.  Ct.  512.  See  ante.  BAX'KRUPTCY, 
p.  168. 

Chattel  mortgages. — As  to  the  meaning 
of  creditors  as  used  in  the  statute  requir- 
ing recordation  of  chattel  mortgages,  see 
ante,   CH.\TTEL   MORTGAGES,  p.  230. 


CRIMINAL  LAW.  Vol.  V. 

CREDITORS'  SUITS.— See  the  title  Creditors'  Suits,  vol.  5,  p.  22,  and  ref- 
erences there  given. 

CRIMES.— See  post,  Criminal  Law. 

CRIMINAL  CONSPIRACY.— See  ante.  Conspiracy,  p.  256. 

CRIMINAL  LAW. 

I.  Definitions  and  Terminology,  435. 

III.  Power  to  Define  and  Prevent  Crime,  and  to  Ordain  Its  Punishment, 

435. 

A.  Power  of  Courts  and  Legislature  Respectively,  435. 

2.  Power  to  Punish  Separate  Parts  of  Transaction,  435. 
B   Power  of  the  States,  436. 

1.  In  General,  436. 

4.  Concurrent  Power  of  Different  States  over  Rivers,  etc.,  436. 

IV.  Existence  and  Enactment  of  Criminal  Law,  436. 

C.  Adoption  of  Law  of  State  for  Place  within  Exclusive  Jurisdiction  of 

United  States,  436. 

V.  Definition,  Nature,  Elements  and  Classification  of  Offenses  and  De- 
fenses, 438. 

B.  Elements  of  Offenses,  438. 

1.  Prohibition  by  Law  Essential,  438. 

3.  Legal  Capacity,  438. 

e.  Corporations,  438. 

4.  Intent,  439. 
6.  Motive,  439. 

11.  Demand,  439. 

12.  Relation  to  Similar  Transactions  in  Time  and  Place,  439. 

C.  Classification  of  Offenses,  439. 

2.  Felonies  and  Misdemeanors,  439. 

b.  Misdemeanors,  439. 

D.  Facts  Relieving  from  Criminal  Responsibility  or  Defenses,  440. 

5.  Ignorance,  Alistake  and  Accident,  440. 

11.  Turning  States'  or  United  States'  Evidence,  440. 
15.  Acting  for  Another  for  Hire,  440. 

VI.  Jurisdiction,  440. 

D.  Jurisdiction  as  Determined  by  Locality  of  Oft'ense,  440. 

3.  Crimes    Committed    in    Places    within    Exclusive    Jurisdiction    of 

United  States,  440. 

c.  Oft'enses  in  Forts,  Arsenals  and  Like  Places,  440. 

4.  Offenses  on  Navigable  Waters,  441. 

b.  Under  the  Federal  Statutes,  441. 

(1)    Offenses  on  the  High  Seas,  or  in  Any  River,    Haven, 
Bay,  etc.,  441. 

(b)  Out  of  Jurisdiction  of  Any  Particular  State,  441. 
aa.  In  General,  441. 

(c)  Within  the  Limits   of  Any   Particular   State,   442. 
aa.  United  States  Courts,  442. 

(aa)   In  General,  442. 
9.  Conspiracy  against  United  States,  442. 

E.  Granting,  Limiting  and  Redistributing  Jurisdiction,  442. 

1.  Crimes  Previously  Committed,  442. 

F.  Exclusive,  Concurrent  and  Conflicting  Jurisdiction,  443. 

1.  General  Rules  and  Principles  Applicable,  443. 

434 


Vol.  V.  CRIMINAL  LAW.  51 

a.  Exclusive  and  Concurrent  Jurisdiction,  443. 
5.  Crimes  in  Territories,  443. 
H.  Divestit^ire  and  Loss  of  Jurisdiction,  443. 

Vni.  Prosecution,  444. 

D.  Limitations,  444. 

2.  When  Statute  Begins  to  Run,  444. 

3.  How  Availed  of,  444. 

a.  By  Special  Plea  or  by  Evidence  under  General  Issue,  444. 

E.  Transfer  of  Accused  to  Other  Federal  District,  444. 
^I.  Arraignment  and  Plea,  449. 

L  Arraignment,  449. 

a.  What  Constitutes,  449. 

c.  Stating  on  the  Record,  450. 
2.  Plea,  450. 

a.  In  General,  450. 

b.  Necessity  and  Waiver,  450. 

c.  Particular  Pleas,  450. 

(5)  Special  Pleas  in  Bar,  450. 

(a)  In  General,  450. 

(b)  Pleading  Over  after  Issue  Found  against  Accused, 

450. 

d.  Time  and  Order,  45L 

O.  Copy  of  Indictment,  List  of  Jurors  and  of  the  Witnesses.  451. 
OYz.  List  of  Witnesses  Who  Appeared  before  Grand  jurv,  451. 
P.  Trial,  451. 

5.  Requisites  of  \'alid  Trial,  451. 

c.  Observance  of  Rights  of  Accused,  451. 

(2)  Waiver  of  Rights,  451. 

7.  Province  and  Duties  of  Court  and  Jury,  451. 

a.  Question  of  Law  and  Fact,  451. 

(3)  Questions  for  the  Jury,  451. 

8.  Evidence,  452. 

d.  Admissibility  and  Weight,  452. 

(13)  Testimony  of   Accused   at   Preliminarv   Examination, 

452. 

(14)  Prima  Facie  Evidence,  452. 

e.  Proof  of  Elements  of  Offense,  452. 

(2)  Intent,  452. 

(3)  Alotive,  452. 

f.  Testimony  of  Accused,  452. 

CROSS   REFERENCES. 

See  the  title  Criminal  Law,  vol.  5,  p.  43,  and  references  there  given. 
In  addition,  see  ante,  Conspir-\cy,  p.  256;   post,  Forge:ry  and  Couxterfsit- 
ixg;    Indians;    Intoxicating  Liquors;    Police  Power. 

I.  Definitions  and  Terminology. 

Malum  in  Se  and  Malum  Prohibita. — See  post,  "Intent,"  V,  B,  4. 
in.  Power  to  Define  and  Prevent  Crime,  and  to  Ordain  Its  Punishment. 

A.  Power  of  Courts  and  Legislature  Respectively — 2.  Power  to  Pun- 
ish Separate  Parts  of  Transaction.— See  note  16. 

51-16.  Power  to  punish  separate  parts  punish  not  onlj'  a  completed  act,  but  also  acts 
of  transaction. — Flemister  v.  United  which  attempt  to  bring  about  the  pro- 
States,  207  U.  S.  372,  52  L.  Ed.  252,  28  S.  hibited  result."  Waters-Pierce  Oil  Co,  v. 
Ct.   129.  Texas.   212   U.   S.  86,   53    L-   Ed.  417,  29   S. 

"It  is  not  uncommon  in  criminal  law  to       Ct.   220. 

435 


52-58 


CRIMINAL  LAW. 


Vol.  V. 


B.  Power  of  the  States — 1.  In  Ge:ne;rai,. — The  legislature  may  enjoin,  per- 
mit, and  punish ;  they  may  declare  new  crimes  and  establish  rules  of  conduct  for 
all  citizens  in  future  cases. ^'^'^  ' 

4.  Concurrent  Power  of  Different  States  over  Rivers,  etc. — Concurrent 
criminal  jurisdiction  of  different  states  over  rivers  is  familiar  to  the  state  legis- 
lature and  means  the  jurisdiction  of  two  powers  over  the  same  place.  It  extends 
to  civil  as  well  as  criminal  matters,  and  is  broadly  a  grant  of  jurisdiction  to  each 
of  the  states. 1'^^  Where  an  act  is  malum  in  se,  prohibited  and  punishable  by  the 
laws  of  both  states,  the  one  first  acquiring  jurisdiction  of  the  person  may  prose- 
cute the  offense,  and  its  judgment  is  a  finality  in  both  states,  so  that  one  convicted 
or  acquitted  in  the  courts  of  the  one  state  can  not  be  prosecuted  for  the  same  of- 
fense in  the  courts  of  the  other.  Doubtless  the  same  rule  would  apply  if  the  act 
were  prohibited  by  each  state  separately. ^^"^  But  one  state  can  not  punish  crim- 
inally an  act  authorized  by  and  done  within  the  limits  of  the  other  state.^^*; 

IV.   Existence  and  Enactment  of  Criminal  Law. 

C.  Adoption  of  Law  of  State  for  Place  within  Exclusive  Jurisdiction 
of  United  States.— Congress  by  §  5391,  Rev.  Stat.  (U.  S.  Comp.  Stat.  1901 
p.  3651)  has  adopted  the  penal  code  of  the  states  in  respect  to  oft'enses  committed 
in  forts,  dock  yards,  navy  yards  and  other  places  ceded  to  the  United  States, 
where  the  offense  is  not  prohibited,  or  the  punishment  thereof  is  not  specially 
provided  for  by  any  law  of  the  United  States.'*'^^     The  operation  of  this  act  was 


52-17a.  Nielsen  v.  Oregon,  212  U.  S.  315, 
53    L.    Ed.    528.   29    S.    Cl.   383. 

52-19a.  Concurrent  powers  of  different 
states.— Nielsen  v.  Oregon,  212  U.  S.  315, 
53  L.  Ed.  528,  29  S.  Ct.  383.  See.  also, 
post,  JURISDICTION. 

"One  purpose,  perhaps  the  primary  pur- 
pose, in  the  grant  of  concurrent  jurisdic- 
tion, was  to  avoid  any  nice  question  as  to 
whether  a  criininal  act  sought  to  be  prose- 
cuted was  committed  on  one  side  or  the 
other  of  the  exact  boundary  in  the  chan- 
nel, that  boundary  sometimes  changing  by 
reason  of  the  shifting  of  the  channel." 
Nielsen  v.  Oregon,  212  U.  S.  315,  53  L. 
Ed.  528,  29  S.  Ct.  383. 

52-19b.  Nielsen  v.  Oregon,  212  U.  S. 
315,   53   L.    Ed.   528,   29   S.   Ct.   383. 

52-19C.  Power  to  punish  act  authorized 
by  other  state. — The  state  of  Oregon  can 
not,  by  virtue  of  its  concurrent  jurisdic- 
tion, under  the  Act  of  Congress  of  Feb- 
ruary 14,  1859  (11  Stat,  at  L.  383,  chap. 
33),  over  the  Columbia  river,  make  crimi- 
nal the  operation  of  a  purse  net  in  that 
river  within  the  territorial  limits  of  the 
state  of  Washington,  under  authority  and 
license  from  that  state.  This  is  not  a 
prosecution  for  an  act  malum  in  se  but 
for  one  simply  malum  prohibitum.  Niel- 
sen V.  Oregon,  212  U.  S.  315,  53  L.  Ed. 
528,   29   S.   Ct.   383. 

.  "For  an  act  done  within  the  territorial 
limits  of  the  state  of  Washington,  under 
authority  and  license  from  that  state,  one 
can  not  be  prosecuted  and  punished  by 
the  state  of  Oregon."  Nielsen  v.  Oregon, 
212  U.   S.  315,  53  L.   Ed.  528,  29   S.  Ct.  383. 

58-47a.  Adoption  of  law  of  state  for 
places  within  exclusive  jurisdiction  of 
United    States. — United    States     v.      Press 


Pub.  Co..  219  U.  S.  1.  55  L.  Ed.  65,  31  S. 
Ct.  212;  Western  Union  Tel.  Co.  v.  Chiles, 
214  U.  S.  274,  53   L.  Efl.  994,  29  S.   Ct.  613. 

The  third  section  of  the  .A.ct  of  March, 
1825,  "came  under  consideration  in  United 
States  V.  Paul,  6  Pet.  139,  8  L.  Ed.  348,  and 
it  was  held  that  its  provisions  referred 
only  to  the  laws  of  the  states  existing  at 
the  time  of  the  passage  of  the  act;  that  is, 
those  which  were  in  force  on  March  3, 
1825."  United  States  v.  Press  Pub.  Co., 
219  U.  S.  1,  55  L.  Ed.  65,  31  S.  Ct.  212; 
Franklin  v.  United  States,  216  U.  S.  559, 
54  L.   Ed.   615,  30   S.   Ct.  434. 

"It  is  undoubted,  as  pointed  out  in 
Franklin  v.   United   States,  216   U.   S.   559, 

54  L.  Ed.  615,  30  S.  Ct.  434  *  *  *,  that 
the  forerunner  of  the  Act  of  1898  was  the 
Act  of  March  3,  1825  (chap.  65,  4  Stat,  at 
L.  115).  since  the  Act  of  1898  is  virtually 
a  repetition  of  the  Act  of  1825,  except  as 
to  provisions  plainly  inserted  merely  for 
the  purpose  of  bringing  under  the  sway  of 
the  act  United  States  reservations  which, 
on  account  of  the  restrictive  terms  of  the 
.\ct  of  1825,  were  not  embraced  within  the 
sphere  of  its  operations."  United  States 
V.  Press  Pub.  Co.,  219  U.  S.  1.  55  L.  Ed. 
65,  31  S.  Ct.  212. 

The  efifect  of  the  Act  of  July  7,  1898 
(30  Stat,  at  L.  717,  §  2,  chap.  576,  U.  S. 
Comp.  Stat.  1901,  p.  3652).  "as  pointed 
out  in  Franklin  v.  United  States,  216  U. 
S.  559,  569,  54  L.  Ed.  615,  30  S.  Ct.  434, 
was  to  incorporate  the  criminal  laws  of 
the  several  states,  in  force  on  July  1,  1898, 
into  the  statute,  and  to  make  such  crimi- 
nal laws,  to  the  extent  of  such  incorpora- 
tion, laws  of  the  United  States."  United 
States    c'.    Press    Pub.    Co.,    219    U.    S.    1, 

55  L.    Ed.    65,    31    S.    Ct.    212. 


436 


Vol.  V. 


CRIMINAL  LAU 


58 


first  limited  to  places  ceded  to  the  United  States  prior  to  tl:e  enactment  of  the 
Act  of  1825;^'^''  the  Act  of  April  5,  1866,  extended  its  operation  to  any  place 
ceded  to  the  United  States  or  which  should  thereafter  be  ceded  i"*"^^  and  the  Act 
of  July  7,  1898  (30  Stat,  at  L.  717,  §  2,  chap.  576,  U.  S.  Comp.  Stat.  1901,  p. 
3652)  further  extended  it  to  embrace  reservations  which  had  been  carved  out  of 
the  public  domain."*"^" 

Crimes  Punishable  and  Extent  of  Punishment.^— This  act  exclusively 
relates  to  offenses  committed  on  United  States  reservations,  etc.,  which  are  not 
provided  for  by  any  law  of  the  United  States,  and  as  to  such  offenses  the  state 
law,  when  they  are  by  that  law  defined  and  punished,  is  adopted  and  made  appli- 
cable. That  is  to  say,  while  the  statute  leaves  no  doubt  where  acts  are  done  on 
reservations  which  are  expressly  prohibited  and  punished  as  crimes  by  a  law  of 
the  United  States,  that  law  is  dominant  and  controlling,  yet,  on  the  other  hand, 
where  no  law  of  the  United  States  has  expressly  provided  for  the  punishment  of 
offenses  committed  on  reservations,  all  acts  done  on  such  reservations  which  are 
made  criminal  by  the  laws  of  the  several  states  are  left  to  be  punished  under  the 
applicable  state  statutes.'*'^  Where  the  state  laws  afford  adequate  punishment 
for  the  offense,  without  resorting  to  the  federal  courts,  the  plain  purpose  is  that 
there  shall  be  but  a  single  prosecution  and  conviction.^" ^ 


58-47b.  In  United  States  v.  Paul,  6  Pet. 
139,  141,  8  L.  Ed.  348,  "in  considering  the 
words  'whereof  is  ceded,'  in  the  first  sec- 
tion of  the  Act  of  March,  1835,  it  was  held 
that  those  words  limited  the  operation  of 
the  act  to  places  which  had  been  ceded  to 
the  United  States  prior  to  the  enactment 
of  the  Act  of  1825."  United  States  v. 
Press  Pub.  Co.,  219  U.  S.  1,  55  L.  Ed.  65, 
31    S.    Ct.   212. 

58-47C.  "By  the  second  section  of  the 
Act  of  April  5,  1866  (chap.  24,  14  Stat,  at 
L.  13,  U.  S.  Comp.  Stat.  1901,  p.  3651), 
congress  substantially  re-enacted  the  third 
section  of  the  Act  of  1825,  changing, 
however,  its  phraseology  so  as  to  cause 
its  provisions  to  apply  not  only,  as  did 
the  Act  of  1825,  to  a  place  ceded  to  the 
United  States,  but  to  'any  place  which  has 
been  or  shall  hereafter  be  ceded.'  As  thus 
adopted,  the  act  passed  into  the  Revised 
Statutes  as  §  5391  (U.  S.  Comp.  Stat.  1901, 
'p.  3651),  and  continued  in  force  until  the 
passage  of  the  Act  of  1898."  United 
States  V.  Press  Pub.  Co.,  219  U.  S.  1,  55 
L.   Ed.  65,  31   S.  Ct.   212. 

58-47d.  Act  of  July  7,  1898.— The  Act 
1898  in  efifect  re-enacting  §  5391,  U.  S. 
Rev.  Stat.  (U.  S.  Comp.  Stat.  1901,  p. 
3651),  "makes  no  substantial  change  con- 
cerning the  fundamental  scope  and  pur- 
pose of  the  prior  statute,  since  it  simply 
enlarged  the  extent  of  its  operation  by 
causing  the  statute  not  only  to  embrace 
reservations  which  had  been  ceded  to  the 
United  States,  but  those  which  had  been 
carved  out  of  the  public  domain."  United 
States  V.  Press  Pub.  Co.,  219  U.  S.  1,  55 
L.  Ed.  65,  31  S.  Ct.  212;  Frankiin  ly.  United 
States,  216  U.  S.  559,  54  L.  Ed.  615,  30  S. 
Ct.    434. 

58-47e.  Crimes  punishable  and  extent  of 
punishment. — United  States  v.  Press  Pul). 


Co.,    219    U.    S.    1,    55    E.    Ed.    65,    31    S.    Ct. 

Punishment  in  the  federal  courts  as  an 
ofifense  against  the  United  States,  but  only 
in  the  way  and  to  the  extent  that  such 
ofifense  would  have  been  punishable  if  the 
territory  embraced  by  the  government 
reservation  where  the  crime  was  com- 
mitted had  remained  subject  to  the  juris- 
diction of  the  state,  is  what  was  intended 
by  Act  July  7,  1898,  c.  576,  §  2,  30  Stat. 
717  (U.  S.  Comp.  St.  1901,  p.  3652),  adopt- 
ing such  punishment  for  offenses  com- 
mitted in  places  under  the  exclusive  juris- 
diction and  control  of  the  United  States 
as  the  laws  of  the  state  in  which  such 
places  are  situated  now  provide  for  a 
like  offense,  the  punishment  therefor  not 
being  otherwise  provided  for  by  any  law 
of  the  United  States.  United  States  v. 
Press  Pub.  Co.,  219  U.  S.  1,  55  L.  Ed.  65, 
31    S.   Ct.   212. 

58-47f.  Where  state  law  affords  ade- 
quate punishment. — The  circulation  in  the 
government  reservation  at  West  Point  and 
in  the  postoffice  building  in  New  York 
City  of  copies  of  a  newspaper  containing 
a  criminal  libel  printed  and  primarily  pub- 
lished in  such  city  can  not  be  punished  in 
the  federal  courts  under  Act  July  7,  1898, 
c.  576,  §  2,  30  Stat.  717  (U.  S.  Comp.  1901, 
p.  3652),  providing  that  offenses  com- 
mitted in  places  under  the  exclusive  ju- 
risdiction and  control  of  the  United  States, 
when  not  expressly  made  criminal  by  any 
law  of  the  United  States,  shall  be  pun- 
ished in  accordance  with  the  laws  of  the 
state  in  which  such  places  are  situated, 
since  the  state  laws  afford  adequate  pun- 
ishment for  the  ofifense,  without  resorting 
to  the  federal  courts,  and  the  plain  pur- 
pose is  that  there  shall  be  but  a  single 
prosecution  and  conviction  for  a  criminal 


437 


59-60 


CRIMINAL  LAW. 


Vol.  V. 


V.   Definition,   Nature,   Elements    and    Classification    of    Offenses   and 

Defenses. 

B.  Elements  of  Offenses — 1.  Prohibition  by  Law  Essential. — See  note  53. 

3.  Legal  Capacity — e.  Corporations. — Some  of  the  earlier  writers  on  com- 
mon law  held  the  law  to  be  that  a  corporation  could  not  commit  a  crime.^'"' 
The  modern  authority,  universally,  so  far  as  known,  is  the  other  way.^^''  It  is 
true  that  there  are  some  crimes  which,  in  their  nature,  can  not  be  committed  by 
corporations.  But  there  is  a  large  class  of  ofifenses  wherein  the  crime  consists  in 
purposely  doing  the  things  prohibited  by  statute.  In  that  class  of  crimes  there  is 
no  good  reason  why  corporations  may  not  be  held  responsible  for  and  charged 
with  the  knowledge  and  purposes  of  their  agents,  acting  within  the  authority 
conferred  upon  them.  If  it  were  not  so,  many  offenses  might  go  unpunished  and 
acts  be  committed  in  violation  of  law  where,  as  in  the  present  case,  the  statute  re- 
quires all  persons,  corporate  or  private,  to  refrain  from  certain  practices,  for- 
bidden in  the  interest  of  public  policy. ^^'^ 

Rebating  under  the  Federal  statute  is  one  of  that  class  of  oft'enses  in 
which  the  corporation  may  be  held  responsible  for  and  charged  with  the  knowl- 
edge and  purpose  of  its  agents  within  the  authority  conferred  upon  them.^^"^ 


libel.  United  States  v.  Press  Pub.  Co., 
219. U.  S.  1,  55  L.  Ed.  65,  31  S.  Ct.  212. 

"We  do  not  now  intimate  that  the  rule 
which  in  this  case  has  controlled  our  de- 
cision would  be  applicable  to  a  case 
where  an  indictment  was  found  in  a  court 
of  the  United  States  for  a  crime  which 
was  wholly  committed  on  a  reservation, 
disconnected  with  acts  committed  within 
the  jurisdiction  of  the  state,  and  where 
the  prosecution  for  such  crime  in  the 
courts  of  the  United  States,  instead  of  be- 
ing in  conflict  with  the  applicable  state  of 
law,  was  in  all  respects  in  harmon> 
therewith."  United  States  v.  Press  Pub. 
Co.,  219  U.  S.  1.  55  L.  Ed.  65,  31  S.  Ct. 
212. 

59-53.  Violation  of  regulation  of  depart- 
ment.— Where  an  act  of  congress  fixes  the 
penalty  for  a  violation  of  reasonable  rules 
to  be  promulgated  by  an  executive  officer, 
as  for  instance  the  secretary  of  agricul- 
ture, a  violation  of  such  rules  is  made  a 
crime,  not  by  the  secretary,  but  by  con- 
gress. United  States  v.  Grimand,  220  U. 
S.  506.  55  L.  Ed.  563,  31  S.  Ct.  480.  See, 
also,  Haas  v.  Henkel.  216  U.  S.  462,  480, 
54  L.  Ed.  569,  30  S.  Ct.  249.  See  ante, 
CONSTITUTIONAL  LAW,  p.  264. 

60-58a.  Corporation. — "It  is  said  to  have 
been  held  bj'  Lord  Chief  Justice  Holt 
(Anonymous.  12  Mod.  -559)  that  'a  cor- 
poration is  not  indictable,  although  the 
particular  members  of  it  are.'  In  Black- 
stone's  Commentaries,  chap.  18,  §  12,  we 
find  it  stated:  'A  corporation  can  not 
commit  treason,  or  felony,  or  other  crime 
in  its  corporate  capacity,  though  its 
members  may,  in  their  distinct  individual 
capacities.'  "  New  York  Cent.,  etc.,  R.  Co. 
V.  United  States,  212  U.  S.  481,  53  L.  Ed. 
613,   29   S.   Ct.   304. 

60-58b.  Modern  authority. — "In  con- 
sidering the  subject,  Bishop's  New  Crimi- 


nal Law,  §  417,  devotes  a  chapter  to  the 
capacity  of  corporations  to  commit  the 
crime,  and  states  the  law  to  be:  'Since 
a  corporation  acts  by  its  officers  and 
agents,  their  purposes,  motives,  and  in- 
tent are  just  as  much  those  of  the  cor- 
poration as  are  the  things  done.  If,  for 
example,  the  invisible,  intangible  essence 
or  air  which  we  term  a  corporation  can 
level  mountains,  fill  up  valleys,  lay  down 
iron  tracks,  and  run  railroad  cars  on  them, 
it  can  intend  to  do  it,  and  can  act  therein 
as  well  viciously  as  virtuously.'  Without 
citing  the  state  cases  holding  the  same 
view,  we  may  note  Telegram  Newspaper 
Co.  V.  Com.,  172  Mass.  294,  44  L.  R.  A. 
159,  70  Am.  St.  Rep.  280,  52  N.  E.  445,  in 
which  it  was  held  that  a  corporation  was 
subject  to  punishment  for  criminal  con- 
tempt; and  the  court,  speaking  by  Mr. 
Justice  Field,  said:  'We  think  that  a  cor- 
poration may  be  liable  criminally  for  cer- 
tain offenses  of  which  a  specific  intent  may 
be  a  necessary  element.  There  is  no  more 
difficulty  in  imputing  to  a  corporation  a 
specific  intent  in  criminal  proceedings 
than  in  civil.  A  corporation  can  not  be 
arrested  and  imprisoned  in  either  civil  or 
criminal  proceedings,  but  its  property  may 
be  taken  either  as  compensation  for  a 
private  wrong  or  as  punishment  for  a 
public  wrong.'  It  is  held  in  England  that 
corporations  may  be  criminally  prosecuted 
for  acts  of  misfeasance  as  well  as  non- 
misfeasance.  R.  V.  Great  North  of  Eng- 
land R.  Co.,  9  Q.  B.  315."  New  York 
Cent.,  etc.,  R.  Co.  v.  United  States,  212  U. 
S.  481,  53   L.   Ed.  613,  29   S.   Ct.  304. 

60-580.  New  York  Cent.,  etc.,  R.  Co.  v. 
United  States,  212  U.  S.  481,  53  L.  Ed.  613, 
29    S.    Ct.   304. 

60-58d.  Rebating. — "We  see  no  valid 
objection  in  law,  and  every  reason  in  pub- 
lic   policy,    why    the     corporation,      which 


438 


Vol.  V. 


CRIMINAL  LAW. 


63-66 


4.  Intknt. — See  post,  "QJuestions  for  the  Jury,"  VIII,  P,  7,  a.,  (3)  ;  "Intent," 
VIII,  P,  8,  e,  (2). 
Where  Act  Prohibited  and  Punished  by  Statute. — See  note  69. 
6.    Motive.— See  post,  "Intent,"  VIII,  P,  8,  e,  (2). 

11.  Demand. — In  the  civil  courts  constructive  demands  may  be  and  are  recog- 
nized, but  not  so  in  a  criminal  court,  in  the  prosecution  for  an  offense  having  as 
one  of  its  statutory  ingredients  a  refusal  to  pay  on  demand.  A  demand  there 
means  actual  demand. ^"^^ 

12.  Relation  to  Similar  Transactions  in  Time  and  Place. — In  larceny, 
if  the  goods  stolen  at  one  time  belonged  to  several  persons,  the  offense  is  single; 
and,  on  conviction  for  working  on  Sunday,  there  is  only  one  breach  of  the  stat- 
ute, the  penalty  for  w^hich  can  not  be  multiplied  by  the  number  of  items  of  work 
done  on  the  day  of  rest.  But  this  does  not  mean  that  if  the  thief  should,  at  a 
different  time,  steal  property  from  the  same  place,  he  could  not  be  punished  for 
the  new  transaction,  nor  that  because  a  man  had  been  convicted  for  working  on 
one  Sunday,  he  could  not  be  convicted  and  punished  for  subsecjuently  working 
on  a  different  Sunday.  For  every  penal  statute  must  have  relation  to  time  and 
place,  and  corporations  whose  operations  are  conducted  over  a  large  territory, 
by  many  agents,  may  commit  offenses  at  the  same  time  in  different  places,  or  in 
the  same  place  at  different  times. '**^'' 

C.  Classification  of  Offenses — 2.  Fe:lonies  and  Misde^meanors — b.  Mis- 
demeanors.— See  note  91. 


profits  by  the  transaction,  and  can  only 
act  through  its  agents  and  officers,  shall 
be  held  punishable  by  fine  because  of  the 
knowledge  and  intent  of  its  agents  to 
whom  it  has  entrusted  authority  to  act  in 
the  subject  matter  of  making  and  fixing 
rates  of  transportation,  and  whose  knowl- 
edge and  purposes  may  well  be  attributed 
to  the  corporation  for  which  the  agents 
act.  While  the  law  should  have  regard 
to  the  rights  of  all,  and  to  those  of  cor- 
porations no  less  than  to  those  of  in- 
dividuals, it  can  not  shut  its  eyes  to  the 
fact  that  the  great  majority  of  business 
transactions  in  modern  times  are  con- 
ducted through  these  bodies,  and  particu- 
larly that  interstate  commerce  is  almost 
entirely  in  their  hands,  and  to  give  them 
immunity  from  all  punishment  because  of 
the  old  and  exploded  doctrine  that  a  cor- 
poration can  not  commit  a  crime  would 
virtually  take  away  the  only  means  of 
eflFectually  controlling  the  subject  matter 
and  correcting  the  abuses  aimed  at."  New 
York  Cent.,  etc.,  R.  Co.  v.  United  States, 
212  U.  S.  481,  53  Li.  Ed.  613,  29  S.  Ct.  304. 

"Applying  the  principle  governing  civil 
liability,  we  go  only  a  step  farther  in 
holding  that  the  Act  of  the  agent,  while 
exercising  the  authority  delegated  to  him 
to  make  the  rates  for  transportation,  may 
be  controlled,  in  the  interest  of  public 
policy,  by  imputing  his  act  to  his  em- 
ployer and  imposing  penalties  upon  the 
corporation  for  which  he  is  acting  in  the 
premises."  New  York  Cent.,  etc.,  R.  Co. 
z:  United  States.  212  U.  S.  481,  53  L.  Ed. 
613.   29    S.    Ct.    304. 

63-69.  Where  an  act  is  prohibited  and 
punishable  by    statute. — The     elimination 


of  intent  by  a  state  police  statute  as  an 
element  of  an  offense,  is  not  contrary  to 
the  requirements  of  due  process  of  law. 
The  legislature  may  by  its  fiat  make  an 
act  otherwise  innocent  a  crime,  and  pun- 
ishable as  such.  To  hold  otherwise  would 
destroy  the  well-recognized  distinction  be- 
tween mala  in  se  and  mala  prohibita. 
Shevlin-Carpenter  Co.  v.  Minnesota,  218 
U.  8.  57,  54  L.   Ed.  930,  30  S.   Ct.   663. 

64-80a.  Demand. — Shoener  v.  Pennsyl- 
vania, 207  U.  S.  188,  52  h.  Ed.  163,  28  S. 
Ct.    110. 

64-80b.  Relation  to  similar  transactions 
in  time  and  place. — Baltimore,  etc.,  R.  Co. 
V.  United  States,  220  U.  S.  94,  55  L.  Ed. 
384,  31   S.  Ct.  3G8. 

66-91.  Misdemeanor. — The  term  "mis- 
demeanor" has  been  generally  understood 
to  mean  the  lower  grade  of  criminal  of- 
fense as  distinguished  from  a  felony.  It 
is  true  that  the  term  has  often  been  used 
in  the  statutes  of  the  United  States  with- 
out strict  regard  to  its  common-law  mean- 
ing, and  sometimes  to  describe  offenses  of 
a  high  grade,  which  have  been  declared 
in  the  statutes  to  be  misdemeanors.  In 
the  statutes  of  the  States  the  term  has 
generally  been  defined  as  embracing 
crimes  not  punishable  by  death  or  im- 
prisonment in  the  penitentiary;  but  at  all 
times  a  misdemeanor  has  been  a  crime. 
The  new  penal  code  of  the  United  States 
"which  goes  into  effect  on  January  1,  1910, 
(§  335,  c.  321,  35  Stat.  1088),  provides  that 
all  offenses  which  may  be  punished  by 
death,  or  imprisonment  for  a  term  ex- 
ceeding one  year,  shall  be  termed  felo- 
nies; all  other  offenses  shall  be  termed 
misdemeanors.     United   States  v.   Steven- 


439 


67-76 


CRIMINAL  LAW. 


Vol.  V. 


D.    Facts    Relieving    from    Criminal    Responsibility    or    Defenses — 5. 

Ignorance^  Mistake  and  Accident. — See  note  1. 

11.  Turning  State;s'  or  United  States'  Evidence. — Information  or  Evi- 
dence.— A  shield  against  successful  prosecution,  available  to  the  accused  as  a 
defense,  and  not  immunity  from  the  prosecution  itself,  is  what  was  secured  by 
Act  Cong.  Feb.  25,  1903,  c.  755,  2>2  Stat.  904  (U.  S.  Comp.  St.  Supp.  1909,  p. 
1142),  as  amended  by  Act  Cong.  June  30,  1906,  c.  3920,  34  Stat.  798  (U.  S. 
Comp.  St.  Supp.  1909,  p.  1168),  providing  that  no  person  shall  be  prosecuted  or 
subjected  to  any  penalty  or  forfeiture  for  or  on  account  of  any  transaction, 
matter,  or  thing  concerning  which  he  may  testify  or  produce  evidence  in  any  pro- 
ceeding, suit,  or  prosecution  under  the  Sherman  anti-trust  and  interstate  com- 
merce acts.*^^ 

15.  Acting  for  Another  for  Hire. — One  can  not  escape  the  consequences  of 
his  criminal  acts  on  the  ground  that  he  performed  them  for  hire,  and  had  no 
other  interest  in  the  results  to  be  obtained. i*^*^ 

VI.  Jurisdiction. 

D.  Jurisdiction  as  Determined  by  Locality  of  Offense — 3.  Crimes  Com- 
mitted IN  Places  within  Exclusive  Jurisdiction  of  United  States — c. 
Offenses  in  Forts,  Arsenals,  and  Like  Places. — The  act  of  congress  of  April  30, 
1790,  now  Rev.  Stat.  U.  S.,  §  5339  (U.  S.  Comp.  Stat.  1901,  p.  3627),  extends  to 
land  acquired  for  a  postoffice  and  courthouse.^ ^^ 

Proof  That  Scene  of  Crime  with  Exclusive  Federal  Jurisdiction. — It 
must  appear  that  the  scene  of  the  crime  was  within  exclusive  federal  jurisdic- 
tion.-* 2" 


son,  215  U.  S.  190,  199,  54  L.  Ed.  153,  30  S. 
Ct.   35. 

The  immigration  Act  of  March  3,  1903, 
c.  1012,  32  Stat.  1213,  was  amended  by  the 
act  of  February  20,  1907,  c.  1134,  34  Stat. 
898.  The  original  act  made  it  unlawful 
to  assist  or  encourage  the  importation  or 
migration  of  certain  aliens  into  the  United 
States.  The  amended  act  declares  that 
such  assistance,  etc.,  shall  be  a  misde- 
meanor. It  is  not  to  be  presumed  that 
this  change  is  meaningless,  and  that  Con- 
gress had  no  purpose  in  making  it.  Nor 
can  any  purpose  be  perceived  in  making 
the  change  except  to  manifest  the  inten- 
tion of  Congress  to  make  it  clear  that  the 
acts  denounced  should  constitute  a  crime 
which  would  carry  with  it  the  right  of  the 
Government  to  prosecute  as  for  a  crime. 
United  States  v.  Stevenson,  215  U.  S.  190, 
198,  54  L.  Ed.  153,  30  S.  Ct.  35. 

67-1.  Ignorance  of  law. — ''Innocence  can 
not  be  asserted  of  an  action  which  violates 
existing  law,  and  ignorance  of  the  law 
will  not  excuse."  Shevlin-Carpenter  Co. 
V.  Minnesota,  218  U.  S.  57,  54  L.  Ed.  930, 
30   S.  Ct.  663. 

68-7a.  Turning  United  States  evidence. 
— Heike  t'.  United  States,  217  U.  S.  423,  54 
L.   Ed.   821,   30  S.   Ct.   539. 

69-lOa.  Acting  for  hire. — Hyde  z'.  United 
States,  35  App.  D.  C.  451,  writ  of  cer- 
tiorari granted.  Hyde  z'.  United  States, 
218  U.  S.  681,  54  L.  Ed.  1207,  31  S.  Ct.  228. 

76-42a.   Postoffice,  etc.— Battle  z'.  United 


States,  209  U.  S.  36,  52  L.  Ed.  670.  28  S. 
Ct.  422,  affirmJng  United  States  r.  Rules, 
(C.   C.    1907),    154    Fed.   540. 

Land  acquired  for  postoffice  and  court- 
house.— A  murder  committed  upon  land 
bought  by  the  United  States  in  the  city 
of  Macon,  Ga.,  on  which  it  is  building  a 
postoffice  and  courthouse,  and  over  which 
the  state  has  ceded  jurisdiction,  is  made 
an  ofifense  against  the  United  States,  jus- 
tifiable in  the  federal  courts,  by  Rev.  vSt. 
U.  S.,  §  5339  (U.  S.  Comp.  St.  1901,  p. 
3627),  making  it  a  capital  ofifense  to  com- 
mit murder  within  any  fort,  arsenal,  dock- 
yard, or  in  any  other  place  or  district  of 
country  under  the  exclusive  jurisdiction 
of  the  United  States.  Judgment,  United 
States  V.  Battle  (C.  C.  1907),  154  F.  540, 
afifirmed.  Battle  z\  United  States,  209  U. 
S.   36,   52    L.   Ed,   670,   28    S.    Ct.   422. 

76-42b.  Proof  that  scene  of  crime  within 
exclusive  federal  jurisdiction  of. — The 
evidence  is  sufficient  to  sustain  the  find- 
ing of  the  jury  that  the  scene  of  a  homicide 
was  within  the  exclusive  federal  ju- 
risdiction, where  the  deeds  and  condemna- 
tion proceedings  assented  to  by  state  leg- 
islation and  authorized  by  congress,  under 
which  the  United  States  claimed  title  to 
the  premises  as  a  military  reservation, 
were  put  in  evidence,  together  with  of- 
ficial maps  in  the  engineer's  department, 
made  from  original  surveys  under  the  au- 
thority of  the  war  department,  and  a  book 
showing  titles  to  such  reservation,  com- 
plied   under   the    same   authority,    even     if 


440 


Vol.  V 


CRIMIXAL  LAW. 


79 


4.  Offenses  ox  Xavigable  Waters — b.  Under  the  Federal  Statutes — (1) 
Offenses  on  the  High  Seas,  or  in  Any  River,  Haven,  Bay,  etc. —  (b)  Out  of  Juris- 
diction of  Any  Particular  State — aa.  In  General. — Under  the  eighth  section  of 
the  Act  of  1790,  ch.  9,  "for  the  punishment  of  certain  crimes  against  the  United- 
States, "  the  courts  of  the  Union  have  cognizance  of  certain  offenses  committed 
on  the  high  seas,  or  in  any  river,  river  haven,  basin  or  bay,  etc.,  out  of  the  juris- 
diction of  any  particular  state.  It  is  not  the  offense  committed,  but  the  bay,  etc., 
in  which  it  is  committed,  that  must  be  out  of  the  jurisdiction  of  the  state.^'^* 
The  meaning  of  the  word  "'state,"  as  used  in  the  eighth  section  of  the  Act  of  1790, 
and  the  subsequent  Act  of  1825.  as  well  as  used  in  §  5339,  Rev.  Stat.,  must  be 
determined  from  its  own  context.  The  word  "state,"  as  there  used,  has  been 
uniformly  held  as  referring  only  to  th.e  territorial  jurisdiction  of  one  of  the 
United  States,  and  not  to  any  other  government  or  political  community .^-^"^  Un- 
der this  act  crimes  committed  within  the  territorial  limits  of  the  Dominion  of 
Canada, ^^''  and  in  the  harbor  of  Honolulu  in  the  territory  of  Hawaii,^-*''  have  been 


evidence  of  the  de  facto  exercise  of  ex- 
clusive jurisdiction  was  not  enough.  Holt 
V.  United  States,  218  U.  S.  245,  54  L.  Ed. 
]021,  31  S.  Ct.  2,  aflfirming  judgment  in 
United  States  z:  Holt  (C.  C.  1909),  168  F. 
141. 

79-53a.  Out  of  jurisdiction  of  any  par- 
ticular state. — W'vnne  f.  United  States, 
217   U.   S.  2.34.  54  L.   Ed.  748,  30  S.   Ct.  447. 

79-54a.  "State"  defined. — Wynne  v. 
United  States.  217  U.  S.  234.  54  U  Ed.  748, 
30   S.   Ct.   447. 

"In  United  States  v.  Furlong,  5  Wheat. 
184,  200,  5  L.  Ed.  64.  one  of  the  questions 
certified  was  whether  the  words,  'out  of 
the  jurisdiction  of  any  particular  state,' 
in  the  8th  section  of  the  Act  of  congress 
of  the  30th  of  April,  1790,  chap.  9  (1  Stat, 
at  L.  113.  U.  S.  Comp.  Stat.  1901,  p.  3643), 
*  *  *  must  be  construed  to  mean  out  of 
the  jurisdiction  of  any  particular  state  of 
the  United  States.  To  this  the  court  said: 
'We  think  it  obvious  that  "out  of  any  par- 
ticular state"  must  be  construed  to  mean 
'out  of  any  one  of  the  United  States.'  By 
examining  the  context  it  \Yill  be  seen  that 
'particular  state,'  is  uniformly  used  in 
contradistinction  to  United  States." 
Wynne  v.  United  States,  217  U.  S.  234,  54 
U   Ed.  748.  30  S.  Ct.  447. 

"Thus,  in  United  States  v.  Ross,  1  Gall. 
626,  Fed.  Cas.  No.  16,196,  Mr.  Justice 
Story  said,  in  reference  to  the  words  in 
§  4  of  the  Act  of  1825,  above  referred  to, 
that  'the  additional  words  of  the  act,  "in 
any  river,  haven,  basin,  or  bay  out  of  the 
jurisdiction  of  any  particular  state."  refer 
to  such  places  without  any  of  the  United 
States,  and  not  without  foreign  states,  as 
will  be  very  clear  on  examining  the  pro- 
vision as  to  the  place  of  trial,  in  the  close 
of  the  same  section.'  "  Wynne  t'.  United 
States,  217  U.  S.  234.  54  U  Ed.  748,  30  S. 
Ct.   447. 

79-54b.  Dominion  of  Canada. — "In 
United  Staies  f.  Rodcer^.  150  U.  S.  249. 
265,  37  L.  Ed.  1071.  14  S.  Ct.  109,  *  *  * 
an  offense  committed  on  the  Detroit  river. 


on  a  vessel  belonging  to  a  citizen  of  the 
United  States,  was  held  cognizable  by  the 
district  court  of  the  United  States  for  the 
eastern  district  of  Michigan,  although  it 
appeared  that  the  offense  had  been  com- 
mitted within  the  territorial  limits  of  the 
Dominion  of  Canada,  and  therefore  not 
within  the  jurisdiction  of  any  particular 
state  of  the  United  States.  See,  also,  St. 
Clair  z\  United  States.  154  U.  S.  134.  144, 
38  U  Ed.  936,  14  S.  Ct.  1002,  and  Ander- 
son f.  United  States,  170  U.  S.  481,  489, 
42  U  Ed.  1116.  18  S.  Ct.  689."  Wynne  v. 
United  States,  217  U.  S.  234.  54  L.  Ed.  748, 
30    S.    Ct.   447. 

79-54C.  Hawaii. — A  murder  committed 
on  board  a  ship  lying  in  the  harbor  ot 
Honolulu  is  cognizable  in  the  district 
court  (5f  the  United  States  for  the  terri- 
tory of  Hawaii,  under  Rev.  Stat.,  §  5339 
(U.  S.  Comp.  Stat.  1901.  p.  3627),  as  com- 
mitted in  a  haven  or  arm  of  the  sea  within 
the  admiralty  and  maritime  jurisdiction 
of  the  United  States,  and  "out  of  the  ju- 
risdiction of  any  particular  state."  Wynne 
z:  United  States,  217  U.  S.  234.  54  U  Ed. 
748.   30   S.   Ct.   447. 

There  is  nothing  in  the  Hawaiian  Or- 
ganic Act  (Act  April  30,  1900,  c.  339,  31 
Stat.  141),  which  expressly  or  impliedly 
deprives  the  federal  courts  of  their  ju- 
risdiction under  Rev.  St.,  §  5339  (U.  S. 
Comp.  St.  1901,  p.  3627),  to  punish  a  mur- 
der committed  on  board  a  ship  lying  in 
the  harbor  of  Honolulu.  Wynne  v.  United 
States,  217  U.  S.  234,  54  L.  'Ed.  748.  30  S. 
Ct.    447. 

"That  there  existed  an  organized  po- 
litical community  in  the  Hawaiian  Islands, 
exercising  political,  civil,  and  penal  juris- 
diction throughout  what  now  constitutes 
the  territor}^  of  Flawaii,  including  juris- 
diction over  the  bay  or  haven  in  question, 
when  that  territory  v.'as  acquired  under 
the  joint  resolution  of  congress  of  July 
7.  1898  (30  Stat,  at  L.  750).  did  not  pre- 
vent the  operation  of  §  5339,  Rev.  Stat. 
That    'political    community'    did    not    con- 


441 


80-85 


CRIMINAL  LAW. 


Vol.  V. 


held  to  be  without  the  jurisdiction  of  any  state  and  justifiable  by  the  federal 
courts. 

(c)  Within  the  Limits  of  Any  Particular  State — aa.  United  States  Courts — 
(aa)  In  General. — The  jurisdiction  of  the  courts  of  the  United  States  is  excluded 
where  the  offense  is  committed  within  the  territorial  limits  of  one  of  the  states 
of  the  Union. '^■'^ 

9.  Conspiracy  against  United  States. — Under  Rev.  St.  U.  S.,  §  5440  (U. 
S.  Comp.  St.  1901,  p.  3676),  providing  that,  if  one  or  more  of  the  persons  con- 
spiring against  the  United  States  do  any  act  to  effect  the  object  of  the  conspiracy, 
all  parties  to  such  conspiracy  shall  be  liable,  an  indictment  for  a  conspiracy 
against  the  United  States  will  lie  in  the  jurisdiction  where  an  act  in  furtherance 
of  it  has  been  committed,  although  the  conspiracy  was  not  actually  entered  into 
in  that  jurisdiction.'^ ^^ 

E.  Granting,  Limiting  and  Redistributing  Jurisdiction — 1.  Crimes  Pre- 
viously Committed. — See  note  7S>. 


■stitute  one  of  the  states  of  the  United 
States;  and  if  the  other  jurisdictional 
facts  existed,  §  5339  came  at  once  into 
operation."  Wynne  v.  United  States,  217 
U.   S.  234,  54   L.  Ed.  748,  30  S.   Ct.  447. 

"It  was  within  the  power  of  congress 
to  confer  upon  its  courts  exclusive  juris- 
diction over  all  offenses  committed  within 
the  territor}%  whether  on  land  or  water. 
This  it  did  not  elect  to  exercise.  It  pro- 
\-ided  for  the  establishment  of  a  district 
court  of  the  United  States,  with  all  of 
the  powers  and  jurisdiction  of  a  district 
court  and  of  a  circuit  court  of  the  United 
States.  It  provided  also  for  the  organi- 
zation of  local  courts  with  the  jurisdiction 
conferred  by  the  existing  laws  of  Hawaii 
•upon  its  local  courts  except  as  such  laws 
were  in  conflict  with  the  act  itself'or  the 
constitution  and  laws  of  the  United 
States.  If  it  be  true,  as  claimed,  that  the 
territorial  courts  exercise  jurisdiction 
over  homicides  in  the  harbor  of  Honolulu, 
under  and  by  virtue  of  the  laws  of  Hawaii 
thus  continued  in  force,  it  only  establishes 
that  there  may  be  concurrent  jurisdiction 
in  respect  of  certain  crimes  when  com- 
mitted in  certain  places."  Wynne  v. 
United  States,  217  U.  S.  234,  54  L.  Ed. 
748,  30  S.   Ct.   447. 

80-57a.  Within  state  limits. — Wynne  v. 
United  States,  217  U.  S.  234,  54  L.  Ed.  748, 
30   S.   Ct.   447. 

The  indictment  in  United  States  v. 
Bevans,  3  Wheat.  336,  388,  4  L.  Ed.  404, 
"was  for  a  murder  done  on  board  a  war 
vessel  of  the  United  States  while  she  lay 
at  anchor  a  m.ile  or  more  from  the  shores 
of  the  bay  constituting  the  harbor  of  Bos- 
ton, in  the  state  of  Massachusetts.  The 
"bay  was  wholly  within  the  territorial  ju- 
risdiction of  the  state  of  Massachusetts, 
and  the  court  said  that  it  was  not  ma- 
terial whether  the  courts  of  that  state 
had  cognizance  of  the  offense  or  not.  'To 
"bring  the  offense,'  said  the  court,  'within 
the  jurisdiction  of  the  courts  of  the 
Union,  it  must  have  been  committed  in  a 


river,  etc.,  out  of  the  jurisdiction  of  any 
state.  It  is  not  the  offense  committed, 
but  the  bay  in  which  it  is  committed, 
which  must  be  out  of  the  jurisdiction  of 
the  state.  If,  then,  it  should  be  true  that 
Massachusetts  can  take  no  cognizance  of 
the  offense,  yet,  unless  the  place  itself  be 
out  of  her  jurisdiction,  congress  had  not 
given  cognizance  of  that  offense  to  its 
courts.  If  there  be  a  common  jurisdic- 
tion, the  crime  can  not  be  punished  in  the 
courts  of  the  Union.'  "  Wynne  v.  United 
States,  217  U.  S.  234,  54  L.  Ed.  748,  30  S. 
Ct.  447. 

83-71a.  Conspiracy  against  United 
States,— Hyde  v.  United  States,  35  App. 
D.  C.  451,  writ  of  certiorari  granted.  Hyde 
V.  United  States,  218  U.  S.  681,  54  L.  Ed. 
1207,  31  S.  Ct.  228.  See  ante,  CON- 
SPIRACY, p.  256. 

85-78.  Creating  new  state.— As  the  func- 
tion and  jurisdiction  of  territorial  courts 
Would  naturally  terminate  upon  the  ter- 
ritory's becoming  a  state,  some  provision 
for  the  transfer  of  pending  criminal  busi- 
ness and  jurisdiction  arising  under  the 
laws  of  the  United  States  to  courts  of 
the  United  States  when  they  should  come 
into  existence  is  necessary.  It  is  compe- 
tent for  congress  to  provide,  as  it  did  in 
the  14th  section  of  Enabling  Act,  for  the 
admittance  of  the  state  of  Oklahoma,  for 
the  transfer  of  jurisdiction  in  respect  of 
all  crimes  against  the  United  States,  for 
the  act  must  be  read  as  applying  to  crimes 
under  the  general  criminal  law  of  the 
United  States,  to  the  federal  courts  pro- 
vided by  the  same  act.  Pickett  z'.  United 
States.  216  U.  S.  456,  54  L.  Ed.  566,  30  S- 
Ct.   265. 

"If  this  could  not  be  done,  the  change 
from  a  territorial  condition  to  that  of  a 
state  would  operate  as  an  automatic 
amnesty  for  crimes  committed  against  the 
general  law  of  the  United  States  within 
district^^  exclusively  under  its  jurisdiction, 
and  not  within  the  jurisdiction  of  any 
state,  for  the  courts  of  the  state  could  not 


442 


Vol.  V. 


CRIMINAL  LAW. 


86-88 


F.  Exclusive,  Concurrent  and  Conflicting  Jurisdiction — 1.  Generai, 
HuivES  AND  Principles  Applicable — a.  Exclusive  and  Concurrent  Jurisdic- 
tion.— There  may  be  concurrent  jurisdiction  in  respect  of  certain  crimes  when 
committed  in  certain  places.^'"' 

5.  Crimes  in  Territories. — See  ante,  "Crimes  Previously  Committed,"  \'I, 
E,  1.     See  note  86. 

H.  Divestiture  and  Loss  of  Jurisdiction. — See  ante,  "Crimes  Previously 
Committed,"  VI,  E,   1. 

Repeal  of  Statute  Conferring  Jurisdiction. — When  the  jurisdiction  of  a 
cause  depends  upon  a  statute,  the  repeal  of  the  statute  takes  away  the  jurisdic- 
tion, and  causes  pending  at  the  time  fall,  unless  saved  by  provision  of  the  statute. 


be  empowered  to  prosecute  crimes  against 
the  laws  of  another  sovereignty.  Martin 
r.  Hunter,  1  Wheat.  304,  337,  4  L.  Ed. 
97.  The  power  to  punish  was  not  lost  if 
the  crime  was  one  of  the  character  de- 
scribed, and  the  Enabling  Act  might  well 
■provide  that  such  crime,  committed  either 
before  or  after  the  admission  of  the  state, 
might  be  prosecuted  in  the  courts  of  the 
United  States  when  established  within 
the  new  state.  The  subject  is  elaborately 
considered  and  decided  by  District  Judge 
Marshall  in  United  States  v.  Baum,  74  Fed. 
43."  Pickett  r.  United  States.  216  U.  S. 
456.  .54  L.   Ed.  56R,  30   S.   Ct.  265. 

Crimes  committed  between  Enabling 
Act  and  admission  of  new  state. — Crimes 
-and  offenses  committed  before  and  after 
the  admission  of  Oklahoma  into  the 
Union,  and  not  those  committed  before 
and  after  the  passage  of  Enabling  Act 
Tune  16,  1906,  c.  3335.  34  Stat.  267,  must 
be  deemed  meant  by  the  provision  of 
■•§  14  of  that  act  (34  Stat.  275  [U.  S.  Comp. 
St.  Supp.  1909,  p.  155]),  for  the  transfer 
of  jurisdiction  in  respect  of  all  crimes 
against  the  United  States  to  the  federal 
courts  therein  provided,  since  otherwise 
there  would  be  an  indefinite  period  be- 
tween the  date  of  the  Enabling  Act  and 
the  admission  of  the  state,  during  which 
such  crimes  might  go  unpunished.  Pick- 
•ett  V.  United  States.  216  U.  S.  456,  54  L. 
Ed.    566,   30   S.    Ct.   265. 

The  murder  of  one  negro  by  another 
within  the  limits  of  the  Osage  Indian 
reservation  subsequent  to  the  Oklahoma 
Enabling  Act  of  June  16,  1906  (34  Stat,  at 
L.  267,  chap.  3335),  but  prior  to  the  ad- 
mission of  that  state  into  the  Union,  is 
justiciable,  after  such  admission,  in  the 
district  court  of  the  United  States  for  the 
western  district  of  Oklahoma,  under  §  14 
of  that  act,  providing  for  the  transfer  of 
jurisdiction  in  respect  of  all  crimes  against 
the  United  States  to  the  federal  courts 
therein  provided.  Pickett  r.  United  States, 
216  U.  S.  456,  54  L.  Ed.  566,  30  S.  Ct.  265. 

"The  jurisdiction  of  the  district  court 
of  the  United  States,  exercised  in  respect 
to  the  indictment  and  trial  of  this  plain- 
tiff in  error,  depends  upon  the  provisions 
of  the  Enabling  Act.  Such  a  crime  might 
'have    been    prosecuted    in    the    territorial 


court  for  the  proper  district  of  the  terri- 
tory, sitting  as  a  court  of  the  United 
States,  and  administering  the  law  of  the 
United  States  in  the  exercise  of  its  juris- 
diction conferred  by  congress.  Ex  parte 
Crow  Dog,  109  U.  S.  556,  27  L.  Ed.  1030, 
3  S.  Ct.  396;  Brown  c-.  United  States,  77 
C.  C.  A.  173,  146  Fed.  975."  Pickett  v. 
United  States,  216  U.  S.  456,  54  L.  Ed 
566,   30  _S.    Ct.   265. 

Pending  causes — Change    of    venue. A 

homicide  cause,  the  venue  of  which  had 
been  changed  conformably  to  the  Act  of 
June  28,  1898  (30  Stat,  at  L-  511,  chap. 
517),  §  29,  because  of  the  Indian  citizen- 
ship of  the  accused,  from  the  United 
States  court  in  the  Indian  territory  to  the 
federal  district  court  at  Paris,  Texas,  was 
not  pending  in  the  United  States  court  in 
the  Indian  territory,  within  the  meaning 
of  the  provisions  of  the  Oklahoma  En- 
abling Act  of  June  16,  1906  (34  Stat,  at  L. 
267,  chap.  3335),  §  20,  as  amended  by  the 
Act  of  March  4,  1907  (34  Stat,  at  L.  1287, 
chap.  2911).  for  the  transfer  to  the  Okla- 
homa courts  of  all  cases  pending  in  the 
United  States  courts  of  Oklahoma  and 
Indian  territories,  not  transferred  to  the 
United  States  circuit  or  district  courts  in 
the  state  of  Oklahoma.  Hendrix  v. 
United  States.  219  U.  S.  79,  55  L.  Ed.  102, 
31    S.    Ct.    193. 

86-80a.  Exclusive  and  concurrent  juris- 
diction.— Wynne  f.  United  States.  217  U. 
S.  234,  54  L.    Ed.   748,   30   S.  Ct.   447. 

88-86.  Crime  on  Indian  reservation 
within  territory. — The  murder  of  one  ne- 
gro by  another  within  the  limits  of  In- 
dian reservation  in  a  territorj'  is  committed 
within  a  place  or  district  under  the  ex- 
clusiA'e  jurisdiction  of  the  United  States, 
within  the  meanins:  of  U.  S.  Rev.  Stat., 
§  5339,  U.  S.  Comp.  Stat.  1901,  p.  3627, 
defining  and  punishing  the  crime  of  mur- 
der, as  amended  by  the  Act  of  January 
15,  1897  (29  Stat,  at  L.  487.  chap.  29,  U. 
S.  Comp.  Stat.  1901.  n.  3620^  and  ex- 
tended by  §  2145  to  the  Indian  country, 
when  not  within  the  exceotions  made  by 
S  2146,  which,  by  reason  of  the  race  of  the 
accused  and  deceased,  do  not  apply.  Pick- 
ett V.  United  States.  216  U.  S.  456,  54  L. 
Ed.  566,  30   S.   Ct.  265. 


443 


95-105 


CRIMINAL  LAW. 


\'ol.  V. 


If  an  act  conferring  jurisdiction  is  repealed  without  reservation  as  to  pending; 
cases,  they  fall  with  it.^^'' 

Vin.  Prosecution. 

D.  Limitations — 2.  When  Statute;  Begins  to  Run. — See  note  48. 

3.  How  Availed  of — a.  By  Special  Plea  or  by  Evidence  under  General 
Issue. — Where  an  indictment  charges  a  continuing  conspiracy,  which  is  ex- 
pressly alleged  to  have  continued  to  the  date  of  the  filing  of  the  indictment,  such 
allegation  must  be  denied  under  the  general  issue,  and  not  by  a  special  plea.-*^^ 

Plea  in  Bar  Not  Abatement. — The  plea  of  the  statute  of  limitations  in 
criminal  procedure  has  been  universally  classed  as  a  plea  in  bar,  and  not  in  abate- 
ment.'*'^'' 

E.  Transfer  of  Accused  to  Other  Federal  District. — If  the  offense  be 
one  which  was  committed  in  more  than  one  district  and  cognizable  in 
either  under  §  731,  Rev.  vStat.,  and  the  accused  is  indicted  in  each  district,  there 
must  be  an  election  as  to  where  he  shall  be  tried.^'*^ 


95-24a.  Repeal  of  statute  conferring  ju- 
risdiction.— Hendrix  x'.  United  States.  219 
U.  S.  79,  55  L.  Ed.  102.  31  S.  Ct.  193.  See. 
also,  post,  STATUTES. 

100-48.  Limitations. — "The  general  rule 
that  time  need  not  be  proved  as  laid  ao- 
plies  to  continuing  offenses."  United 
States  7'.  Kissel.  218  U.  S.  601,  54  L.  Ed. 
1168,  31  S.  Ct.  124. 

"The  mere  continuance  of  the  result  of 
a  crime  does  not  continue  the  crime, 
United  States  z:  Irvine,  98  U.  S.  450,  25 
L.  Ed.  193."  United  States  v.  -Kissel,  218 
U.    S.   601.   54  L._  Ed.    1168,  31    S.   Ct.    124. 

100-49a.  Continuous  conspiracy — Denial 
under  general  issue. — United  States  v. 
Barber,  219  U.  S.  72,  55  L.  Ed.  99,  31  S. 
Ct.  .209,  following.  United  States  v.  Kis- 
sel, 218  U.  S.  601.  54  L.  Ed.  1168.  31  S. 
Ct.  124,  so  holding  as  to  an  indictment 
charging  a  continuing  conspiracy  to  de- 
fraud the  United  States. 

100-49b.  Plea  in  bar  not  abatement. — 
United  States  :•.  Barber,  219  U.  S.  72,  55 
L.  Ed.  99,  31  S.  Ct.  209,  following  United 
States  v.  Kissel,  218  U.  S.  601,  54  L.  Ed. 
1168.  31  S.  Ct.  124. 

"The  plea  of  the  statute  of  limitation 
does  not  question  the  validity  of  the  in- 
dictment, but  is  directed  to  the  merits  of 
the  case;  and  if  found  in  favor  of  the  de- 
fendant, the  judgment  is  necessarily  an 
acquittal  of  the  defendant  of  the  charge, 
and  not  a  mere  abatement  of  the  action." 
United  States  v.  Barber,  219  U.  S.  72,  55 
L.  Ed.  99,  31  S.  Ct.  209. 

105-54a.  Offense  committed  in  more 
than  one  district. — Haas  v.  Henkel,  216  U. 
S.    462,    54    L.    Ed.    569.   30    S.    Ct.    249. 

"Primarily,  this  is  the  right  and  duty 
of  the  attorney  general,  or  those  acting 
by  his  authority.  If  the  election  require 
the  arrest  of  the  accused  in  a  district  other 
than  that  in  which  the  trial  is  to  be  had. 
removal  proceedings  must,  of  course,  be 
instituted.  The  duty  of  the  commissioner 
is  then  limited  to  the  determination  of 
the    single    question    of   whether    a    prima 


facie  case  is  made  that  the  accused  has 
committed  an  offense  against  the  United 
States,  indictable  and  triable  m  the  dis- 
trict to  which  a  removal  is  sought.  There 
is  no  discretion  reposed  when  such  a  case 
is  made  out."  Haas  v.  Henkel,  216  U. 
S.  462,  54   L.   Ed.  569,  30  S.   Ct.  249. 

"In  Benson  v.  Henkel,  198  U.  S.  1,  15, 
49  L.  Ed.  919.  25  S.  Ct.  569,  objection  was 
made  to  a  removal  to  the  District  of  Co- 
lumbia upon  the  ground  that  the  offense, 
if  any,  was  committed  in  California,  and 
that,  under  the  constitution,  the  appellant 
was  entitled  to  a  trial  in  that  jurisdiction. 
In  dealing  with  that  question,  Mr.  Justice 
Brown  said:  'The  objection  does  not  ap- 
pear upon  the  face  of  the  indictment, 
which  charges  the  offense  to  have  been 
committed  within  this  district,  but  from 
the  testimony  of  one  of  those  clerks  it 
seems  that  the  money  was  received  by  him 
in  certain  letters  mailed  to  him  from  San 
Francisco  and  received  in  Washington. 
Without  intmiating  whether  the  question 
of  jurisdiction  can  be  raised  in  this  way, 
the  case  clearly  falls  within  that  of  In  re 
Palliser,  136  U.  S.  257,  34  L.  Ed.  514,  10 
S.  Ct.  1034,  in  which  it  was  held  that 
where  an  offense  is  begun  by  the  mailing 
of  a  letter  in  one  district  and  comoleted 
by  the  receipt  of  a  letter  in  another  dis- 
trict, the  offender  may  be  punished  in  the 
latter  district,  although  it  may  be  that  he 
could  also  be  punished  in  the  former.' " 
Haas  V.  Henkel.  216  U.  S.  462,  54  L.  Ed. 
569,  30  S.   Ct.  249. 

"In  In  re  Palliser,  136  U.  S.  257.  34  L. 
Ed.  514,  10  S.  Ct.  1034,  a  removal  from  a 
New  York  district,  the  residence  of 
Palliser,  to  a  Connecticut  district,  was 
objected  to  because  the  offense  had  been 
committed  in  New  York,  and  not  Con- 
necticut. The  court  said:  'But  there  can 
be  no  doubt  at  all  that,  if  any  offense  was 
committed  in  New  York,  the  offense  con- 
tinued to  be  committed  when  the  letter 
reached  the  postmaster  in  Connecticut: 
and  that,  if  no  offense  was   committed  in 


444 


Vol.  V. 


CRIMINAL  LAW. 


105 


Residence  of  Accused.— Whether  the  accused  might  have  been  indicted  and 
tried  in  the  district  of  his  residence  presents  no  obstacle  to  the  legal  right  of  re- 
moval. A  person  who  has  committed  a  crime  against  the  United  States  in  any 
judicial  district  has  neither  legal  nor  constitutional  right  to  object  to  removal  to 
that  district  for  the  trial. '^■^'^ 

Indictment  in  District  of  Residence  and  in  Another  for  Same  Offense. 
— A  person  indicted  for  the  same  ottense  in  two  federal  districts,  one  of  which 
is  the  district  where  he  resides,  may — at  least,  with  the  consent  of  the  court  of 
the  latter  district — be  removed,  under  Rev.  St.,  §  1014  (U.  S.  Comp.  St.  1901,  p. 
716),  to  the  other  district  for  the  trial  of  the  offense  committed  there. -^-^ - 

Interference  with  Jurisdiction  of  Other  Courts. — The  prosecution  of 
proceedings  for  the  removal  to  another  federal  district  for  trial  of  a  person  there 
charged  with  an  offense  against  the  United  States  is  not  an  unlawful  interference 
with  the  jurisdiction  of  a  federal  circuit  court  for  another  district,  in  which  an 
order  for  the  removal  of  the  accused  to  answer  for  similar  but  distinct  offenses 
has  been  stayed  pending  the  determination  of  an  appeal  from  such  order  to  a 
circuit  court  of  appeals. ■''■*'^ 


New  York,  an  offense  was  committed  in 
Connecticut;  and  that.-  in  either  aspect, 
the  district  court  of  the  United  States  for 
the  district  of  Connecticut  had  jurisdic- 
tion of  the  charge  against  the  petitioner. 
Whether  he  might  have  been  indicted  in 
New  York  is  a  question  not  presented  b}' 
this  appeal.'"  Haas  t'.  Henkel,  216  U.  S. 
462,  54  I,.  Ed.  569,  30  S.  Ct.  249. 

105-54b.  Residence  of  accused. — Haas 
V.  Henkel,  216  U.  S.  462.  54  L.  Ed.  569, 
30  S.  Ct.  219.  distinguishing  Hyde  v. 
Shine,  199  U.  S.  62.  50  L.  Ed.  90,  25  S. 
Ct.  .760. 

"There  is  no  principle  of  constitutional 
law  which  entitles  one  to  be  tried  in  the 
place  of  his  residence.  The  right  secured 
by  art.  3,  §  2,  and  the  sixth  amendment  of 
the  constitution,  is  the  right  of  trial  in 
the  district  'where  the  crime  shall  have 
been  committed.'  "  Haas  v.  Henkel,  216 
U.    S.   462,   54   L.    Ed.   569.   30   S.   Ct.   249. 

In  Burton  v.  United  States.  202  U.  S. 
344,  387.  50  L.  Ed.  1057,  26  S.  Ct.  688.  the 
court  said  that  "the  constitutional  require- 
ment is  that  the  crime  shall  be  tried  in 
the  state  or  district  where  committed; 
not  necessarily  in  the  state  or  district 
where  the  party  happened  to  be  at  the 
time."  Price  v.  Henkel,  216  U.  S.  488. 
54   L.   Ed.   581,  30  S.   Ct.  257. 

Where  the  United  States  court  for  the 
district  in  which  an  offense  was  committed 
had  jurisdiction  over  the  accusation  made 
in  that  district,  and  the  case  is  triable 
there;  the  duty  of  the  commissioner,  as- 
suming a  showing  of  probable  cause,  was 
to  detain,  and  of  the  judge  of  the  district 
to  issue  his  warrant  for  the  removal  of 
the  accused  ''to  the  district  where  the 
trial  is  to  be  had."  The  case,  on  prin- 
ciple, must  be  the  same  if  the  offense  be 
one  which  was  committed  in  more  than 
one  district.  Haas  t'.  Henkel,  216  U.  S. 
462,  54  L.  Ed.  569,  30  S.  Ct.  249,  following 


Beavers  r-.  Haubert.  198  U.  S.  77,  49  L. 
Ed.  950,  25   S.   Ct.   573. 

105-54C.  Indictment  in  district  of  resi- 
dence and  in  another  for  same  offense. — 
Price  V.  Henkel,  216  U.  S.  488.  54  L.  Ed. 
581,  30  S.  Ct.  257;  Haas  v.  Henkel.  216  U. 
S.    462,    54    L.    Ed.    569,   30   S.    Ct.    249. 

Denial  of  speedy  trial. — Where  indict- 
ments for  an  offense  which  was  committed 
in  more  than  one  district  are  found  in 
each  district  in  one  of  which  the  defend- 
ant resides,  the  accused  has  a  right  to  a 
speedy  trial  of  the  accusation  in  -the  lat- 
ter district.  If  unreasonable  delay  should 
result  from  continuances  due  to  an  elec- 
tion to  try  the  same  accusations  in  the 
other  district,  a  question  might  arise,  call- 
ing for  relief  through  habeas  corpus.  But 
such  a  possibility  affords  no  legal  reason 
for  denying  the  right  of  removal.  Haas 
V.  Henkel. "2I6  U.  ^S.  462,  54  L.  Ed.  569, 
30    S.    Ct.    249. 

"The  precise  question  has  not  been  be- 
fore raised;  but  in  principle  the  case  is 
within  In  re  Palliser,  136  U.  S.  257,  267,  34 
L.  Ed.  514.  10  S.  Ct.  1034:  Hyde  z'.  Shine. 
199  U.  S.  62,  50  L.  Ed.  90.  25  S.  Ct.  760; 
and  Benson  v.  Henkel,  198  U.  S.  1,  15,  49 
L.  Ed.  919.  25  S.  Ct.  569."  Haas  v.  Hen- 
kel, 216  U.  S.  462,  54  L.  Ed.  569,  30  S.  Ct. 
249. 

105-54d.  Interference  with  jurisdiction 
of  other  court. — Peckham  :•.  Henkel,  216 
U.  S.  483,  54  L.  Ed.  579.  30  S.  Ct.  255,  af- 
firming 166  Fed.  627. 

"He  will  not  be  removed  under  or  in 
pursuance  of  the  original  order  of  removal, 
execution  of  which  had  been  stayed,  but 
under  an  order  made  in  an  altogether  dis- 
tinct and  subsequent  proceeding  to  answer 
distinct  offenses."  Peckham  v.  Henkel. 
216  U.  S.   483,  54  L.   Ed.  579,  30  S.  Ct.  255. 

"Finally,  it  is  said  that  the  jurisdiction 
of  the  court  for  the  northern  district  of 
New  York,  having  attached  to  the  person 
of  appellant,   must  be   respected  as  exclu- 


445 


105 


CRIMINAL  LAW. 


Vol.  V. 


That  bail  had  been  given  by  the  accused  for  his  appearance  in  the  district 
of  his  residence  for  a  different  offense  against  the  United  States  would  not  pre- 
vent removal,  for  in  such  a  situation  the  sureties  would  be  exonerated  by  act  of 
the  law.^-i'' 

The  question  of  distance  presents  no  obstacle  to  the  legal  right  of  re- 
moval.^^^ 

Sufficiency  of  Indictment. — Where  the  indictment  is  not  void  on  its  face 
though  it  may  be  subjected  to  technical  objections,  it  is  sufficient  for  the  purpose 
of  a  removal. ^■^^ 


sive  until  its  jurisdiction  is  exhausted.  The 
rule  is  one  of  comity  only,  and  has  a  wide 
application  in  civil  cases,  but  a  limited  one 
in  criminal  cases.  See  In  re  Johnson,  167 
U.  S.  120,  125,  42  L.  Ed.  103,  17  S.  Ct.  735, 
and  Beavers  v.  Haubert,  198  U.  S.  77,  84, 
49  L.  Ed.  950,  25  S.  Ct.  573.  But  when,  as 
here,  the  subsequent  proceedings  for  the 
removal  of  appellant  are  to  answer  indict- 
ments later  found  for  other  and  distinct 
offenses,  the  question  is  quite  a  different 
one,  for  the  'cases'  are  not  the  same.  That 
they  are  'cases'  against  the  same  offender 
is  not  of  itself  sufficient  to  constitute  the 
second  proceedings  void  as  an  unlawful 
interference  with  the  jurisdiction  of  the 
circuit  court  for  the  northern  district  of 
New  York.  The  present  case  differs  upon 
this  point  from  that  of  Beavers  v.  Hau- 
bert, in  that  the  consent  of  the  court  of 
prior  jurisdiction  was  not  obtained  as  in 
that.  In  that  case  the  court  reserved  the 
question  as  to  'whether  the  government 
had  the  right  of  election,  without  such 
consent,'  to  proceed  in  either  of  the  two 
districts  in  w^hich  indictments  were  pend- 
ing." Peckham  v.  Henkel,  216  U.  S.  483, 
54  L.  Ed.  579,  30  S.   Ct.  255. 

"But  there  is  here  no  question  of  elect- 
ing whether  to  try  in  the  northern  district 
of  New  York  or  in  the  District  of  Colum- 
bia, but  whether  it  would  elect  between 
the  two  removal  proceedings,  the  object  of 
each  being  to  remove  the  appellant  to  the 
same  place  for  trial.  The  institution  of 
the  second  removal  proceeding  without 
the  consent  of  the  circuit  court  for  the 
northern  district  of  New  York  may  very 
well  be  regarded  as  an  election  by  the 
United  States,  the  plaintiff  in  both  cases 
to  abandon  the  first  complaint.  But  aside 
from  this,  and  assuming,  without  decid- 
ing, that  the  removal  proceedings  were  in 
disregard  of  the  prior  proceedings,  and 
therefore  erroneous,  the  jurisdiction  of  the 
commissioner  was  not  affected.  No  con- 
stitutional right  of  the  appellant  was  in- 
vaded. A  petition  for  a  writ  of  habeas 
corpus  is  not  a  writ  of  error.  The  error,  if 
any,  was  a  mere  disregard  of  a  rule  of 
comity,  which  is  not  reversible  in  a  pro- 
ceeding of  this  character."  Peckham  v. 
Henkel,  216  U.  S.  483,  54  L.  Ed.  579,  30  S. 
Ct.  255. 

105-54e.  Bail.— Haas  v.  Henkel,  216  U. 
S.  462,  54  L.  Ed.  569,  30  S.  Ct.  249,  follow- 
ing Beavers  v.  Haubert,  198  U.  S.  77,  49  L. 


Ed.  950.  25  S.  Ct.  573;  Peckham  v.  Henkel, 
216  U.  S.  483.  54  L.  Ed.  579.  30  S.  Ct.  255. 
See,  also,  ante,  BAIL  AND  RECOGNI- 
ZANCE, p.  166. 

In  Beavers  v.  Haubert,  198  U.  S.  77,  49' 
L.  Ed.  950,  25  S.  Ct.  573,  it  was  held  that 
the  fact  that  the  accused  was,  at  the  time, 
under  indictment  in  the  district  of  his  res- 
idence, and  under  bail  for  his  appearance 
for  a  different  offense  against  the  United 
States,  afforded  no  reason  for  denying  a 
removal  upon  the  election  to  try  the  one 
case  before  the  trial  of  the  other.  Haas 
V.  Henkel,  216  U.  S.  462,  54  L.  Ed.  569,  30 
S.  Ct.  249. 

105-54f.  Distance. — In  Hyde  v.  Shine 
(199  U.  S.  62,  50  L.  Ed.  90,  25  S.  Ct.  760), 
the  conspiracy  charged  was  one  triable  in 
California,  the  residence  of  the  accused, 
the  demand  was  for  removal  from  Cali- 
fornia to  the  District  of  Columbia,  the 
question  of  distance  was  pressed  and  de- 
cided as  presenting  no  obstacle  to  the 
legal  right  of  removal.  Haas  v.  Henkel, 
316  U.   S.  462.  54  L.   Ed.  569.  30  S.   Ct.  249. 

105-54g.  Sufficiency  of  allegation. — Al- 
legations charging  a  conspiracy  by  which 
an  employee  in  the  bureau  of  statistics  in 
the  department  of  agriculture  was  to  give 
his  coconspirators  advance  information  of 
the  official  cotton  crop  reports,  and  a  con- 
spiracy to  bribe  such  einployee  for  the 
same  purpose,  sufficiently  show^  for  the 
purposes  of  a  removal,  under  Rev.  St..  § 
1014  (U.  S.  Comp.  St.  1901,  p.  716),  to  the 
District  of  Columbia  for  trial,  the  com- 
mission within  the  district  of  offenses 
against  the  United  States.  Price  v.  Hen- 
kel, 216  U.  S.  488,  54  L.  Ed.  581,  30  S.  Ct. 
257;  Haas  v.  Henkel,  216  U.  S.  462,  54  L. 
Ed.  569,  30  S.  Ct.  249. 

"It  is  enough  to  hold,  as  we  do,  that  the 
indictinents  sufficiently  charge  an  offense 
committed  within  the  District  of  Colum- 
bia to  require  that  the  appellant  shall  be 
removed  to  that  district  for  trial.  Ben- 
son V.  Henkel,  198  U.  S.  1,  49  L.  Ed.  919, 
25  S.  Ct.  569."  Haas  v.  Henkel.  216  U.  S. 
462,  54  L.  Ed.   569,  30  S.   Ct.  249. 

One  good  count  in  an  indictment  under 
whicli  a  trial  might  be  had  in  the  federal 
district  to  which  a  removal  under  U.  S. 
Rev.  Stat.,  §  1014,  U.  S.  Comp.  Stat.  1901, 
p.  716,  is  sought,  is  enough  to  support  an 
order  for  such  removal  in  a  habeas  cor- 
pus proceeding.  Price  v.  Henkel,  216  U. 
S.   488,   54   L.    Ed.   581,   30   S.   Ct.   257. 


446 


Vol.  V. 


CRIMINAL  LAW. 


105 


Evidence  and  Showing  of  Probable  Cause. — There  must  be  some  com- 
petent evidence  to  show  that  an  offense  has  been  committed  over  which  the  court 
in  the  other  district  had  jurisdiction,  and  that  the  defendant  is  the  individual 
named  in  the  charge,  and  that  there  is  probable  cause  for  believing  him  guilty  of 
the  offense  charged. ^^^  A  prima  facie  case  for  the  removal  is  made  by  the  intro- 
duction of  the  indictments  returned  against  him  in  the  court  of  another  district. 
Aluch  efficacy  is  attributed  to  a  certified  copy  of  an  indictment  found  in  a  compe- 
tent court  of  another  district,  when  put  in  evidence  in  a  removal  proceeding;^'' 
but  the  evidence  of  probable  cause  afforded  by  the  indictment  is  not  conclusive. 
For  this  reason  it  has  been  held  that  the  refusal  of  a  commissioner  to  hear  e\  i- 
dence  offered  for  the  purpose  of  showing  that  no  offense  had  been  committed,, 
triable  in  the  district  to  which  removal  was  sought,  would  be  a  denial  of  right  se- 
cured under  the  constitution. ^^^  The  introduction  of  copies  of  indictments  for 
similar  offenses  found  in  the  district  in  which  the  accused  resides  can  not  destroy 
the  evidential  effect  of  the  indictments  found  in  the  district  to  which  he  is  to  be 
removed  even  when  there  is  other  evidence  that  no  crime  was  committed  in  the 
latter  district. ^^"^     The  indictment  found  in  the  district  in  which  the  accused  re- 


i05-o4h.  Evidence  and  showing  of  prob- 
able cause. — Harlan  z\  McGourin,  218  U. 
S.  442,  54  L.  Ed.   1101,  31   S.   Ct.  44. 

'"This  was  the  construction  of  §  1014,  in 
Greene  v.  Henkel,  183  U.  S.  249,  261,  46  L. 
Ed.  177,  22  S.  Ct.  218.  *  *  *  In  the  case 
of  Hyde  v.  Shine,  199  U.  S.  62,  50  L.  Ed. 
90,  25  S.  Ct.  760,  the  justice  was  but  de- 
claring the  rule  already  recognized  and 
enforced  under  §  1014,  Rev.  Stat."  Harlan 
V.  McGourin,  218  U.  S.  442,  54  L.  Ed.  1101, 
31  S.   Ct.  44. 

105-541.  Price  v.  Henkel,  216  U.  S.  488, 
54  L.  Ed.  581,  30  S.  Ct.  257,  following  Bry- 
ant V.  United  States,  167  U.  S.  104,  42  L. 
Ed.  94,  17  S.  Ct.  744;  Greene  v.  Henkel, 
183  U.  S.  249,  46  L.  Ed.  177,  22  S.  Ct.  218; 
Hyde  v.  Shine,  199  U.  S.  62,  50  L.  Ed.  90, 
25  S.  Ct.  760,  and  Beavers  v.  Henkel,  194 
U.  S.  73,  48  L.  Ed.  882,  24  S.  Ct.  605.  And 
see  Harlan  v.  jNlcGourin,  218  U.  S.  442,  54 
L.  Ed.  1101,  31  S.  Ct.  44. 

■'Haas  was  arrested  upon  a  warrant  duly 
sworn  out,  charging  him  with  offenses 
against  the  United  States,  committed 
within  the  District  of  Columbia.  Copies 
of  the  indictments  duly  returned  by  a 
grand  jury  were  put  in  evidence.  That 
made  a  prima  facie  case,  requiring  deten- 
tion until  an  order  of  removal  could  be 
applied  for  and  issued."  Haas  v.  Henkel, 
216  U.   S.  462,  54  L.   Ed.  569,  30  S.   Ct.  249. 

105-54J.  Price  v.  Henkel,  216  U.  S.  488, 
54  L.  Ed.  581,  30  S.  Ct.  257,  approving 
Tinsley  v.  Treat,  205  U.  S.  20,  51  L.  Ed. 
689,   27    S.    Ct.   430. 

105-54k.  Introduction  of  copies. — A 
finding  of  probable  cause  for  the  removal 
to  the  District  of  Columbia  of  a  person 
there  charged  with  an  offense  against  the 
United  States  will  not  be  disturbed  on 
habeas  corpus  as  being  wholly  without 
any  evidence  to  support  it,  where  certified 
copies  of  indictments  for  conspiring 
against  the  United  States,  found  in  the 
District   of   Columbia,   were   produced   be- 


fore the  commissioner,  although  copies 
of  indictments  found  by  the  federal  court 
of  the  district  where  the  accused  resides, 
laying  the  locus  of  the  conspiracy  in  that 
district,  were  also  offered  in  evidence,, 
together  with  testimony  tending  to  show 
that  the  accused  had  not  been  in  the  Dis- 
trict of  Columbia  at  any  of  the  times 
when  the  conspiracy  was  said  to  have 
been  formed.  Price  v.  Henkel,  216  U.  S- 
488,    54   L.    Ed.   581,   30   S.    Ct.   257. 

"But  It  can  not  be  conceded  that  the 
introduction  of  copies  of  the  New  Yoik 
indictments  operated  to  destroy  the  ev.- 
aential  effect  ol  the  indictments  found  in 
the  District  of  Columbia,  even  as  to  the 
identical  counts.  In  the  case  of  Haas  v. 
Henkel  (,216  L.  S.  462,  54  L,.  Ed.  569,  30 
S.  Ct.  240),  we  held  that  such  evidence 
did  not  so  conclusively  destroy  the  evi- 
dence afforded  by  copies  of  the  District 
ot  Coluinbia  indictments  as  to  leave  no 
testimony  upon  which  the  commissioner 
might,  upon  the  whole  case,  decide  that 
there  was  proof  of  probable  cause." 
Price  V.  Henkel,  216  U.  S.  488,  54  L,.  Ed. 
581,    30    S.    Ct.   257. 

"But  in  this  case  there  was  no  closing 
of  the  door  to  evidence  otfered  to  show 
a  want  of  probable  cause.  Copies  of  the 
New  Vork  indictments  against  appellant 
for  many  of  the  same  oftenses  were  re- 
ceived in  evidence,  as  tending  to  show 
that  the  conspiring,  if  any  there  was,  had 
been  done  in  New  York,  and  not  in  the 
District  of  Columbia.  Some  evidence 
tending  that  Price  was  not  in  the  Dis- 
trict of  Columbia  at  the  time  when  the 
conspiracies  are  charged  to  have  been 
formed  was  also  introduced.  There  was 
also  some  evidence  offered,  questioning 
the  identity  of  the  appellant  with  the 
person  accused  by  the  District  of  Colum- 
bia indictments.  The  probative  weight 
of  certified  copies  of  the  New  York  in- 
dictments   is    necessarily    limited    to    such 


447 


105 


CRIMINAL  LAW. 


Vol.  V. 


sides,  together  with  evidence  tending  to  prove  that  he  had  not  been  in  the  other 
district,  only  made  an  issue  which  the  commissioner  had  jurisdiction  to  decide 
and  when  the  proceedings  before  him  show  that  he  had  such  evidence  upon  which 
he  might  base  his  decision,  that  decision  is  not  open  for  review  upon  a  petition 
for  a  writ  of  habeas  corpus. ^^' 

Rebutting-  Prima  Facie  Case. — The  prima  facie  case  for  the  removal, 
under  Rev.  St.,  §  1014  (  U.  S.  Comp.  St.  1901,  p.  716),  to  another  federal  district 
for  trial,  of  a  person  there  charged  with  an  offense  against  the  United  States, 
which  is  made  by  the  production  of  certified  copies  of  indictments  for  conspiracy 
against  the  United  States,  found  by  the  court  of  that  district,  is  not  overcome  by 
the  introduction  of  copies  of  indictments  found  by  a  court  of  the  district  where 
the  accused  resides,  which  lay  the  locus  of  the  conspiracy  in  that  district. "-^^ 

Question  for  Commissioner. — If  the  commissioner  receives  evidence  on 
behalf  of  the  accused,  it  is  for  him  to  say  whether,  upon  the  whole  testimony, 
there  was  proof  of  probable  cause."'**" 

Habeas  Corpus  to  Test  Validity  of  Removal  Proceedings — Conformity 
to  State  Practice. — The  requirement  that  the  usual  mode  of  process  adopted 
in  the  state  shall  be  pursued  refers  to  the  proceedings  for  the  arrest  and  exami- 
nation of  the  accused  before  the  commissioner,  but  it  has  no  bearing  upon  the 


counts  as  are  identical  in  the  two  sets  of 
indictments.  This  would  leave  counts 
five  and  seven  of  indictment  No.  26,088 
unaffected  as  evidence  of  probable  cause, 
and  justified  the  order  of  commitment, 
although  there  might  be  conclusive  evi- 
dence that  the  ofifense  charged  in  the 
other  counts  had  not  been  committed  in 
the  District  of  Columbia,  as  charged. 
Horner  v.  United  States,  143  U.  S.  207, 
36  L.  Ed.  126,  12  S.  Ct.  407."  Price  v. 
Henkel,  216  U.  S.  488,  54  L.  Ed.  581,  ?,Q 
S.   Ct.   257. 

105-541.  "The  commissioner  had  before 
him  competent  evidence  in  the  certified 
copies  of  the  District  of  Columbia  in- 
dictments upon  which  he  might  base  a 
conclusion  of  probable  cause.  At  most, 
the  New  York  indictments,  together  with 
the  evidence  tending  to  prove  that  appel- 
lant had  not  been  in  the  District  of  Col- 
umbia at  any  of  the  times  when  the 
conspiracy  was  said  to  have  been  formed, 
only  made  an  issue  which  the  commis- 
sioner had  jurisdiction  to  decide."  Price 
V.  Henkel,  216  U.  S.  488,  54  L.  Ed.  581, 
30  S.  Ct.  257,  following  In  re  Cortes,  136 
U.  S.  330,  34  L.  Ed.  464,  10  S.  Ct.  1031; 
Bryant  v.  United  States,  167  U.  S.  104, 
42  L.  Ed.  94,  17  S.  Ct.  744;  Greene  v. 
Henkel,  183  U.  S.  249,  261,  46  L.  Ed.  177, 
22  S.  Ct.  218;  Hyde  v.  Shine,  199  U.  S. 
62,  84,  50  L.   Ed.   90,  25   S.   Ct.  760. 

105-54m.  Rebutting  prima  facie  case. 
—Haas  V.  Henkel,  216  U.  S.  462,  54  L. 
Ed.  569,  30  S.  Ct.  249,  affirming  166  Fed. 
621. 

In  Price  v.  Henkel,  216  U.  S.  488,  54 
L.  Ed.  581,  30  S.  Ct.  257,  the  court  said: 
"The  evidence,  independent  of  that  af- 
forded by  the  New  York  indictments, 
relied  upon  to  show  that  appellant  was 
not    in    the    District    of    Columbia    when 


the  conspiracy  is  charged  to  have  been 
formed,  has  been  examined.  It  can  not 
be  said  to  be  at  all  conclusive.  First,  it 
leaves  out  of  consideration  the  fact  that 
the  indictments  may  be  sustained  by  evi- 
dence of  a  conspiracy  formed  at  dates 
before  the  finding  of  the  indictment,  other 
than  those  named,  if  not  barred  by  the 
statute  of  limitations.  Ledbetter  v. 
United  States,  170  U.  S.  606,  612,  42  L. 
Ed.  1162,  18  S.  Ct.  774.  Second,  it  does 
not  exclude  the  possibility  that  the  con- 
spiracy may  have  been  formed  in  the 
District  of  Columbia  without  appellant 
I)eing  physically  present  when  the  con- 
spiracy was  formed.  In  re  Palliser,  136 
U.  S.  257,  265,  34  L.  Ed.  514,  10  S.  Ct.  1034; 
Burton  v.  United  States,  202  U.  S.  344, 
387,  50  L.  Ed.  1057,  26  S.  Ct.  688;  United 
States  V.  Thayer,  209  U.  S.  39,  43,  52  L. 
Ed.  673,  28  S.  Ct.  426.  *  *  *  Upon  the 
whole  case,  we  are  satisfied  that  there  is 
not  shown  that  entire  absence  of  evi- 
dence which,  upon  an  appeal  like  this, 
would  require  us  to  hold  that  the  decision 
that  there  was  probable  cause  was  void 
as   not  based   upon   any  evidence." 

105-54n.  Question  for  commissioners. 
—Price  V.  Henkel,  216  U.  S.  488,  54  L.  Ed. 
581,  30  S.  Ct.  257,  following  In  re  Cortes, 
136  U.  S.  330,  34  L.  Ed.  464,  10  S.  Ct. 
1031;  and  Bryant  v.  United  States,  167 
U.    S.   104,   42   L.    Ed.    94,   17    S.    Ct.   744. 

In  Price  v.  Henkel,  216  U.  S.  488.  54 
L.  Ed.  581,  30  S.  Ct.  257,  the  commis- 
sioner received  evidence  on  behalf  of  the 
accused  and  upon  such  evidence  found 
the  existence  of  probable  cause  and  com- 
mitted the  defendants,  and,  upon  applica- 
tion to  the  district  judge  for  the  warrant 
of  removal,  he  reviewed  his  action,  but 
did  not  pass  upon  the  weight  of  the  evi- 
dence. 


448 


Vol.  V. 


CRIMINAL  LAW 


105-106 


subsequent  independent  proceeding  before  the  circuit  court  upon  habeas  cor- 
pus.^^° 

Scope  of  Review. — On  habeas  corpus  to  test  the  validity  of  proceedings  to 
remove  to  another  federal  district  a  person  there  charged  with  an  otTense  against 
United  States,  matter  in  abatement  and  substantive  defenses  are  not  open;^^?  and 
error,  if  any,  in  prosecuting  such  proceedings  wliile  similar  proceedings  were 
pending  in  a  federal  circuit  court  for  another  district  can  not  be  corrected.^-^i 

Exclusion  of  evidence  to  show  that  no  offense  had  been  committed  triable 
in  the  district  to  which  removal  was  sought  is  reviewable  on  habeas  corpus.^^"" 

Sufficiency  of  Evidence. — It  is  well  settled  that,  upon  habeas  corpus  in  the 
federal  courts  to  review  proceedings  for  removal  of  an  accused  to  the  district  of 
trial,  the  court  will  not  weigh  the  evidence,  although,  if  there  is  an  entire  lack 
of  evidence  to  support  the  accusation,  the  court  may  order  his  discharge."'*^ 

Denial  of  Speedy  Trial. — The  right  to  a  speedy  trial  of  an  accusation  for 
the  same  offense  found  in  the  district  in  which  the  accused  resides  affords  no  le- 
gal reason  for  denying  the  right  of  removal;  but  if  unreasonable  delay  should  re- 
sult from  continuances  due  to  the  election  to  try  the  same  accusation  in  another 
district,  a  case  might  arise  calling  for  relief  through  habeas  corpus. ^^' 

M.  Arraignment  and  Plea — 1.  Arraignme:nt — a.  What  Constitutes. — See 
note  60 


105-54O.    Habeas  corpus  to  test  validity, 

etc.— Price  v.  Henkel,  216  U.  S.  488,  54 
L.    Ed.    581,   30   S.    Ct.    257. 

105-54p.  Matters  in  abatement  and  sub- 
stantive defenses  are  not  open  on  habeas 
corpus  to  test  the  validity  of  proceedings, 
under  U.  S.  Rev.  Stat.,  §  1014,  U.  S. 
Comp.  Stat.  1901,  p.  716,  to  remove  to 
another  federal  district  for  trial  a  person 
there  charged  with  an  offense  against  the 
United  States.  Haas  v.  Henkel,  216  U.  S. 
462,  54  L.  Ed.  569,  30  S.  Ct.  249.  See, 
generally,    post,    HABEAS    CORPUS. 

105-54q.  Similar  proceeding  pending  in 
circuit  court  for  another  district. — The 
error,  if  any,  in  prosecuting  proceedings 
for  the  removal  to  another  federal  dis- 
trict for  trial  of  a  person  there  charged 
with  an  offense  against  the  United  States, 
while  similar  proceedings  in  a  federal 
circuit  court  for  another  district  are 
pending,  can  not  be  corrected  on  a  writ 
of  habeas  corpus.  Peckham  v.  Henkel, 
216  U.   S.  483,  54  L.  Ed.  579,  30  S.  Ct.  255. 

105-54r.  Exclusion  of  evidence. — In 
Tinsley  v.  Treat,  205  U.  S.  20,  51  L.  Ed. 
689,  27  S.  Ct.  430,  "it  was  held  that  while 
an  indictment  constitutes  prima  facie 
evidence  of  the  offense,  when  the  defend- 
ant offered  to  show  that  no  offense  had 
been  committed  triable  on  the  district  to 
which  removal  was  sought,  the  exclusion 
of  such  evidence  was  not  mere  error, 
but  a  denial  of  a  right  secured  under  the 
federal  constitution  to  be  tried  in  the 
state  and  district  where  the  alleged  of- 
fense was  committed,  and  therefore  re- 
viewable under  habeas  corpus  proceed- 
ings." Harlan  v.  McGourin,  218  U.  S. 
442,   54  L.   Ed.   1101,   31   S.   Ct.  44. 

105-54S.  Sufficiency. — Price  v.  Henkel, 
216    U.    S.    488,    54    L.    Ed.    581,    30    S.    Ct. 

12   U   S   Enc— 29  449 


257.  following  Hyde  v.  Shine,  199  U.  S. 
62,  84,  50  L.  Ed.  90,  25  S.  Ct.  760. 

The  case  of  Hyde  v.  Shine,  199  U.  S. 
62,  84,  50  L.  Ed.  90,  25  S.  Ct.  760,  was  a 
proceeding  in  habeas  corpus  to  attack 
the  validity  of  an  order  made  under  § 
1014,  of  the  Rev.  Stat.,  of  the  United 
States  (U.  S.  Comp.  Stat.  1901,  p.  716), 
for  the  removal  of  the  petitioner  from 
the  state  of  California  to  the  District  of 
Columbia  for  trial  upon  an  indictment 
found  in  the  district.  In  that  case  it 
was  contended  that,  inasmuch  as  §  1014 
requires  proceedings  for  the  removal  of 
persons  from  one  district  to  another  to 
be  agreeable  to  the  usual  mode  of  proc- 
ess against  defendants  in  such  state,  and 
as  in  the  state  of  California,  where  the 
prisoner  was  arrested,  the  supreme  court 
had  held  that  the  question  of  probable 
cause  of  the  prisoner's  guilt  might  be 
considered  upon  the  writ  of  habeas  cor- 
pus, it  necessarily  followed  that  such 
should  be  the  course  of  procedure  in  the 
federal  courts.  In  answer  to  this  con- 
tention, the  above  quoted  rule  was  laid  down. 
"In  so  stating,  the  learned  judge,  speaking 
for  the  court,  was  but  affirming  the  rule 
well  established  under  §  1014,  that  there 
must  be  some  testimony  before  the  com- 
missioner to  support  the  accusation  in 
order  to  lay  the  basis  for  an  order  of 
removal,  otherwise  the  accused  could  be 
discharged  upon  habeas  corpus,  although 
the  court  would  not  weigh  the  evidence 
where  the  record  shows  that  some  evi- 
dence was  taken."  Harlan  v.  McGourin, 
218  U.   S.  442,  54  L.   Ed.  1101,  31   S.   Ct.   44. 

105-54t.  Denial  of  speedy  trial. — Haas 
c-'.  Henkel.  216  U.  S.  462,  54  L.  Ed.  ^.Q9, 
30   S.    Ct.   249. 

106-60.  Arraignment  and  plea. — "Ac- 
cording   to    Sir    Matthews    Hale,    the    ar- 


107-109 


CRIMINAL  LAW. 


Vol.  V. 


c.  Stating  on  the  Record. — See  note  63. 

2.  Plea— a.  In  General.— See  ante,  "Arraignment,"  VIII,  M,  1.     See  note  64. 

b.  Necessity  and  Waiver. — See  note  65. 

c.  Particular  Pleas— (5)  Special  Pleas  in  Bar— (a)  In  General. — The  desig- 
nation of  pleas  in  bar  as  a  plea  in  abatement  does  not  change  tlieir  essential 

nature.'' ^^ 

(b)  Pleading  Over  after  Issue  Found  against  Accused. — It  is  a  rule  in  criminal 
law  in  favorem  vitse,  in  capital  cases,  that  when  a  special  plea  in  bar  is  found 
against  the  prisoner,  either  upon  issue  tried  by  a  jury  or  upon  a  point  of  law  de- 
cided by  the  court,  he  shall  not  be  concluded  or  convicted  thereon,  but  shall  have 
judgment  of  respondeat  ouster,  and  may  plead  over  to  the  felony  the  general  is- 
sue "not  guilty.'"^'''' 


raignment  consists  of  three  parts,  one  of 
which,  after  the  prisoner  has  been  called 
to  the  bar,  and  informed  of  the  charge 
against  him,  is,  the  'demanding  of  him 
whether  he  be  guilty;  and  if  he  pleads 
not  guilty,  the  clerk  joins  issue  with  him, 
cul,  prist,  and  enters  the  prisoner's  plea; 
then  he  demands  how  he  will  be  tried; 
the  common  answer  is,  by  God  and  the 
country,  and  thereupon  the  clerk  enters 
po.  se,  and  prays  to  God  to  send  him  a 
good  deliverance.'  2  Hale,  P.  C.  219.  So 
in  Blackstone:  'To  arraign  is  nothing 
else  but  to  call  the  person  to  the  bar  of 
the  court  to  answer  the  matter  charged 
upon  him  in  the  indictment.'  'After  which, 
after  the  indictment  is  read  to  the  ac- 
cused, it  is  to  be  demanded  of  him  whether 
he  is  guilty  of  the  crime  whereof  he 
stands  indicted,  or  not  guilty.'  4  Bl.  Com. 
322,  323  to  341."  Johnson  v.  United 
States,  225  U.  S.  405,  56  L.  Ed.  1142,  32 
S.  Ct.  748.  In  Grain  v.  United  States, 
162  U.  S.  625,  40  L.  Ed.  1097,  16  S.  Ct. 
952,  the  arraignment  was  considered  as 
distinct  from  the  plea,  and  consisted  of 
formally  calling  the  accused  to  the  bar  for 
the  purpose  of  a  trial. 

107-63.  Chitty  says:  "The  proper  mode 
of  stating  the  arraignment  on  the  record 
is  in  this  form:  'And  being  brought  to 
the  bar  here  in  his  own  proper  person,  he 
is  committed  to  the  marshal,  etc.  And 
being  asked  how  he  will  acquit  himself 
of  the  premises  (in  case  of  felony,  and 
of  "the  high  treason"  in  case  of  treason) 
'above  laid  to  his  charge,  saith,'  etc.  If 
this  statement  be  omitted,  it  seems  the 
record  will  be  erroneous.'  1  Chitty, 
Grim.  Law  419."  Johnson  v.  United 
States,  225  U.  S.  405,  56  L.  Ed.  1142,  32 
S.    Ct.    748. 

The  arraignment  and  plea  are  affirma- 
tively shown  by  the  record,  if  such  be  the 
fair  intendment  of  the  words  of  the  rec- 
ord. "And  this  is  demonstrated  by  the 
case  that  is  relied  on  against  it;  that  is. 
Grain  z-.  United  States,  162  U.  S.  625,  40 
L.  Ed.  1097.  16  S.  Ct.  952.  In  that  case 
the  record  did  not  show,  and  we  quote 
from  the  opinion,  'that  the  accused  was 
ever  formally  arraigned,  or  that  he  plead,  d 


to  the  indictment,'  except  as  an  inference 
from  a  statement  in  the  bill  of  excep- 
tions that  the  jury  were  'sworn  and 
charged  to  try  the  issues  joined.'  "  John- 
son 2J.  United  States,  225  U.  S.  405,  56  L. 
Ed.   1142,  32  S.   Ct.  748. 

"There  is  no  explicit  provision  in  the 
laws  of  the  United  States  describing  what 
shall  constitute  an  arraignment.  But  so 
far  as  it  is  expressed  it  has  a  definite 
meaning."  In  §  1032,  Rev.  Stat.  (U.  S. 
Comp.  Stat.  1901,  p.  722),  "the  word  'ar- 
raignment' is  used  as  comprehensively 
descriptive  of  what  shall  precede  the  plea. 
If  it  be  so  used  in  the  law,  it  certainly 
can  be  used  in  the  record  as  showing  the 
performance  of  that  which  the  law  pre- 
scribes by  it."  Johnson  v.  United  States, 
225  U.  S.  405,  56  L.  Ed.  1142,  32  S.  Ct.  748. 

The  record  sufficiently  shows  that  the 
indictment  was  read  to  the  accused,  where, 
after  reciting  the  presence  of  the  attorney 
for  the  United  States,  the  defendant  in 
proper  person  and  by  his  attorney,  it 
adds  that  "thereupon  the  defendant,  be- 
ing arraigned  upon  the  indictment,  pleads 
thereto  not  guilty,  and  for  trial  puts  him- 
self upon  the  country,  and  the  attorney 
of  the  United  States  doth  the  like."  John- 
son V.  United  States,  225  U.  S.  405,  56  L. 
Ed.    1142,    32    S.    Ct.    748. 

107-64.  Plea. — A  defendant,  who  has 
been  indicted  for  crime  and  apprehended, 
has  a  right  to  raise  an  issue  of  law  upon 
the  indictment  by  demurrer,  to  plead  in 
bar,  or  plead  the  general  issue.  Heike  v. 
United  States,  217  U.  S.  423,  54  L.  Ed. 
821,   30   S.   Ct.   539. 

107-65.  Necessity  and  waiver. — It  was 
held  in  Grain  z\  United  States,  162  U.  S. 
625,  40  L.  Ed.  1097,  16  S.  Ct.  952,  that  a 
plea  to  the  indictment  was  not  a  matter 
of  form,  but  of  substance,  and  should  be 
shown  by  the  record.  Johnson  v.  United 
States,  225  U.  S.  405,  56  L.  Ed.  1142,  32 
S.  Ct.  748.  See  ante,  "Stating  on  the 
Record."  VIII,  M,  1,  c. 

109-75a.  Designation. — United  States  v. 
Barber,  219  U.  S.  72,  55  L.  Ed.  99,  31  S. 
Ct.  209. 

109-77a.  Pleading  over. — Heike  v. 
United    States,    217    U.    S.    423,    54    L.    Ed. 


450 


\'ol.  V. 


CRIMINAL  LAW. 


109-120 


d.  Time  and  Order. — Objections  to  the  want  of  proper  arrest  and  preliminary- 
examination  of  the  accused  before  a  magistrate,  and  to  the  lack  of  verification  of 
the  information  by  oath  or  affidavit,  must  be  taken  before  pleading  the  general 
issue  by  some  proper  motion  or  plea  in  order  to  be  available  to  the  accused.''^'' 

0.  Copy  of  Indictment,  List  of  Jurors  and  of  the  Witnesses. — See 
note  82 

0|.  List  of  Witnesses  Who  Appeared  before  Grand  Jury. — Neither  the 
sixth  amendment  to  the  federal  constitution,  nor  U.  S.  Rev.  Stat.,  §  829,  U.  S. 
Comp.  Stat.  1901,  p.  636,  accords  the  right  to  the  accused  to  be  apprised  of  the 
names  of  the  witnesses  wdio  appeared  before  the  grand  jury.'^-''^ 

P.  Trial — 5.  Requisites  of  Valid  Trial — c.  Observance  of  Rights  of  Ac- 
cused—  (2)   Waiver  of  Rights. — See  note  99. 

7.  Province  and  Duties  of  Court  axd  Jury — a.  Question  of  Laze  and  Fact 
—  (3)   Question  for  the  Jury. — Intent. — See  note  25. 


821,  30  S.  Ct.  539,  following  Rankin  v. 
State,  11  Wall.  380,  20  L.  Ed.   175. 

"At  the  common  law,  upon  the  failure 
of  such  plea  in  a  case  of  misdemeanor,  it 
was  usual  at  once  to  sentence  the  defend- 
ant as  upon  conviction  of  guilt  of  the 
oflfense  charged.  In  cases  of  felony  it 
was  usual  to  permit  a  plea  of  not  guilty 
after  judgment  over."  Heike  v.  United 
States,  217  U.  S.  423,  54  L.  Ed.  821,  30 
S.   Ct.   539. 

109-77b.  Time  and  order. — Dowell  t . 
United  States.  221  U.  S.  325,  55  L.  Ed. 
753,   31   S.   Ct.   590. 

Pleas  in  abatement  in  a  criminal  pros- 
ecution filed  about  four  years  after  in- 
dictment found,  which  show  a  serious 
irregularity  in  the  organization  of  the 
grand  jury,  are  filed  too  late,  and  excep- 
tions thereto  by  the  prosecution  are 
properly  sustained.  Hyde  v.  United 
States,  35  App.  D.  C.  451,  writ  of  cer- 
tiorari granted.  Hyde  v.  Uni,ted  States, 
218  U.  S.  681,  54  L.  Ed.  1207,  31  S.  Ct.  228. 
See  the  title  ABATEMENT,  REVIVAL 
AND  SURVIVAL,  p.  1. 

110-82.  Copy  of  indictment,  list  of  ju- 
rors and  witnesses. — "Both  the  constitu- 
tion and  the  law  are  careful  to  direct 
that  information  be  given  to  the  accused 
of  the  charge  against  him.  By  §  1033  it 
is  provided  that  when  any  person  is  in- 
dicted for  any  capital  offense,  if  it  be 
treason,  three  days  before  the  trial,  and 
if  it  be  any  other  capital  offense,  two 
days  before  the  trial,  a  copy  of  the  in- 
dictment and  list  of  jurors  and  witnesses 
shall  be  delivered  to  him.  And  this  can 
be  insisted  on.  Logan  :■.  United  States, 
144  U.  S.  263,  36  L.  Ed.  429,  12  S.  Ct. 
617;  Hickory  v.  United  States,  151  U.  S. 
303,  38  L.  Ed.  170,  14  S.  Ct.  334.  We  may 
presume  that  the  law  was  complied  with 
in  the  present  case  and  that  Johnson  was 
given  a  copy  of  the  indictment  as  well  as 
having  had  it  read  to  him,  which  we 
think  the  record  sufficiently  shows."  John- 
son V.  United  States,  225  U.  S.  405,  56  L. 
Ed.  1142,  32  S.  Ct.  748. 


113-93a.  List  of  witnesses. — Wilson  v. 
United  States,  221  U.  S.  361,  55  L.  Ed. 
771,   31    S.    Ct.    538. 

113-99.  Waiver  of  rights. — "When  there 
is  no  constitutional  or  statutory  man- 
date, and  no  public  policy  prohibiting,  an 
accused  may  waive  any  privilege  which 
he  is  given  the  right  to  enjoy."  Mullan 
V.  United  States,  212  U.  S.  ,516.  53  L.  Ed. 
632,   29    S.    Ct.    330. 

120-25.  Intent. — "Where  intent  is  an 
essential  ingredient  of  a  crime,  it  is  set- 
tled that  such  intent  may  be  charged  in 
general  terms,  and  that  the  existence  of 
the  intent  becomes,  therefore,  a  question 
to  be  detennined  by  the  jury  upon  a  con- 
sideration of  all  the  facts  and  circum- 
stances of  the  case.  Evans  z'.  United 
States,  153  U.  S.  584,  594,  38  L.  Ed.  830, 
14  S.  Ct.  934."  United  States  v.  Corbett, 
215  U.  S.  233,  54  L.   Ed.   173,  30  S.  Ct.  81. 

"It  is,  of  course,  to  be  conceded  that 
where  the  facts  charged  to  have  been 
done  with  criminal  intent  are  of  such  a 
nature  that,  on  the  face  of  the  indict- 
ment, it  must  result  as  a  matter  of  law 
that  the  criminal  intent  could  not,  under 
any  possible  circumstances,  have  existed, 
the  charge  of  such  intent,  in  general 
terms,  would  raise  no  issue  of  fact  proper 
to  go  to  a  jury."  United  States  v.  Cor- 
bett, 215  U.  S.  233,  54  L.  Ed.  173,  30  S. 
Ct.    81. 

"If  a  man  carries  on  an  act,  or  any 
person  does  anything  which,  upon  its 
face,  is  apparently  unlawful,  and  he  does 
it  in  a  furtive  and  secret  manner,  showing 
that  his  intention  while  he  does  the  act 
is  to  do  it  in  such  a  way  as  to  conceal  it, 
the  jury  may  draw  the  inference  from 
that  fact,  if  they  see  fit;  they  are  not 
obliged  to,  but  they  may  if  they  see  fit — 
that  the  intention  with  which  the  act  was 
done  was  to  perform  an  illegal  or  a  crim- 
inal act."  New  York  Cent.,  etc.,  R.  Co. 
V.  United  States.  212  U.  S.  481,  53  L.  Ed. 
613,   29    S.    Ct.   304. 


451 


126-129 


CRIMINAL  LAW. 


Vol.  y. 


8.  Evidence— d.  Admissibility  and  JVeight—{l3)  Testimony  of  Accused  at 
Preliminary  Examination. — Testimony  of  an  accused,  voluntarily  given  at  the 
.preliminary  hearing,  is  not  rendered  inadmissible  at  the  trial  by  U.  S.  Rev.  Stat., 
§  860,  U.  S.  Comp.  Stat.  1901,  p.  661,  providing  that  no  pleading  nor  any  discov- 
ery or  evidence  obtained  from  a  party  by  means  of  a  judicial  proceeding  shall  be 
used  in  evidence  against  him  in  a  criminal  proceeding.-^'^^ 

(14)  Prima  Facie  Evidence. — Prima  facie  evidence  is  sufficient  evidence  to 
outweigh  the  presumption  of  innocence  and  if  not  met  by  opposing^  evidence  to 
support  a  verdict  of  guilty.  It  is  such  as,  in  judgment  of  law,  is  sufficient  to  es- 
tablish the  fact;  and  if  not  rebutted,  remains  sufficient  for  the  purpose.^'^'^ 

e.  Proof  of  Elements  of  Offense— (2)  Intent.— See  ante,  "Questions  for 
Jury."  Mil,  P,  7,  a,  (3).     See  note  51. 

Testimony  of  Accused. — See  note  52. 

(3)     Motive.— See  ante,  "Intent."  VIII.   P,  8,  e,    (2). 

f.  Testimony  of  Accused. — Impeachment  and  Cross-Examination. — As- 
suming the  position  of  a  witness,  the  accused  is  entitled  to  all  rights  and  protec- 
tion, and  is  subject  to  all  criticisms  and  burdens;  and  may  be  fully  cross-exam- 
ined as  to  the  testimonv  voluntarily  given.*"^!^ 


126-46a.  Testimony  at  preliminary  ex- 
amination.— Powers  c'.  United  States,  223 
U.  S.  303,  56  L.   Ed.  448,  32  S.  Ct.  281. 

"We  are  of  the  opinion  that  it  was  not 
essential  to  the  admissibility  of  his  testi- 
mony that  he  should  first  have  been 
warned  that  what  he  said  might  be  used 
against  him."  Powers  v.  United  States, 
223  U.  S.  303,  56  L.   Ed.  448,  32  S.  Ct.  281. 

"In  Wilson  v.  United  States,  162  U.  S. 
613,  40  L.  Ed.  1090,  16  S.  Ct.  895,  Wilson 
was  charged  with  murder.  Before  a 
United  States  commissioner,  upon  a  pre- 
liminary hearing,  he  made  a  statement 
which  was  admitted  at  the  trial.  He  had 
no  counsel,  was  not  warned  or  told  of 
his  right  to  refuse  to  testify,  but  there 
was  testimony  tending  to  show  that  the 
statement  was  voluntary.  At  page  623 
this  court  said:  'And  it  is  laid  down  that 
it  is  not  essential  to  the  admissibility  of 
a  confession  that  it  should  appear  that 
the  person  was  warned  that  what  he  said 
would  be  used  against  him,  but,  on  the 
contrary,  if  the  confession  was  voluntary, 
it  is  sufficient,  though  it  appear  that  he 
was  not  so  warned.  Joy,  Confessions,  45, 
48.  and  cases  cited.  .  .  .  He,  Wilson, 
did  not  testify  that  he  did  not  know  that 
he  had  a  right  to  refuse  to  answer  the 
questions,  or  that,  if  he  had  known  it,  he 
would  not  have  answered.  .  .  .  He  did 
not  have  the  aid  of  counsel,  and  he  was 
not  warned  that  the  statement  might  be 
used  against  him,  or  advised  that  he  need 
not  answer.  These  were  matters  which 
went  to  the  weight  or  credibility  of  what 
he  said  of  an  incriminating  character; 
but  as  he  was  not  confessing  guilt,  but 
the  contrary,  we  think  that,  under  all 
the  circumstances  disclosed,  they  were 
not  of  themselves  sufficient  to  require 
his  answers  to  be  excluded  on  the  ground 
of  being  involuntary  as  matter  of  law.'  " 
Powers   V.    United    States,   223    U.    S.    303, 


56  L.  Ed.  448.  32  S.  Ct.  281.  See  ante, 
COXFESSIOXS.  p.  249. 

126-46b.  Prima  facie  evidence. — Bailey 
V.  Alabama,  219  U.  S.  219,  234,  55  L.  Ed. 
191,  31  Sup.  C:.  Rep.  145. 

126-51.  Acts  showing  intent  or  malice 
or  motive. — Evidence  of  an  attempt  to 
acquire,  and  of  the  acquisition,  by  like 
unlawful  methods,  of  state  school  lands, 
is  admissible,  on  a  trial  for  conspiring  to 
suborn  perjury  in  proceedings  for  the 
purchase  of  public  land  under  the  Tim- 
ber and  Stone  Act,  as  tending  to  estab- 
lish guilty  intent,  purpose,  design,  or 
knowledge  on  the  part  of  the  alleged  con- 
spirators. Williamson  v.  United  States, 
207  U.  S.  425,  52  L.  Ed.  278,  28  S.  Ct.  163. 

127-52.  Testimony  of  accused  as  to  in- 
tent or  mptive. — Accused  should  be  al- 
lowed to  testify  as  to  his  intent  in 
abstracting  certain  correspondence  from 
the  files  of  a  corporation,  where  the 
lirosecution  claims  that  he  did  so  for  the 
purpose  of  suppressing  or  destroying  evi- 
dence against  him.  Judgment  (1907)  30 
App.  D.  C.  1,  reversed.  Crawford  v. 
United  States,  212  U.  S.  183,  53  L.  Ed. 
465,    29    S.    Ct.    260. 

129-61a.  Cross-examination. — Powers  f. 
United  States,  223  U.  S.  303,  56  L.  Ed.  448. 
32  S.  Ct.  281,  following  Reagan  v.  United 
States,  157  U.  S.  301,  305,  39  L.  Ed.  710,  15 
S.  Ct.  610. 

''The  rule  is  thus  stated  in  Brown  v. 
Walker,  161  U.  S.  591,  597,  40  L.  Ed.  819, 
16  S.  Ct.  644:  'Thus,  if  the  witness  him- 
self elects  to  waive  his  privilege,  as  he 
may  doubtless  do,  since  the  privilege  is 
for  his  protection,  and  not  for  that  of 
other  parties,  and  discloses  his  criminal 
connections,  he  is  not  permitted  to  stop, 
but  must  go  and  make  a  full  disclosure. 
1  Greenl.  Ev.,  §  451;  Dixon  v.  Vale,  1  Car. 
&  P.  278;  East  v.  Chapman,  2  Car.  &  P. 
570.  ?^Ioody  &  M.  46;  State  v.  K— ,  4  N.  H. 


452 


Vol.  V. 


CROSS  BILLS. 


135-138 


CROSS  BILLS. 

IV.  Propriety  and  Necessity,  453. 
V.  Filing  of  Cross  Bill,  453. 

CROSS   REFERENCES. 

See  the  title  Cross  Bills,  vol.  5,  p.  133,  and  references  there  given. 

IV.  Propriety  and  Necessity. 

A  cross  bill  may  be  maintained  although  the  defendants  seeking  to  file  the  same 
claim  no  affirmative  relief  against  the  complainants  where  a  decree  may  be  neces- 
sary to  establish  the  rights  of  the  various  codefendants.'^'' 

V.  Filing  of  Cross  Bill. 

A  court  in  granting  leave  to  file  a  cross  bill  may  prescribe  the  terms  on  which 
the  same  may  be  filed. 2-** 


562;  Low  r.  Mitchell.  IS  Me.  372;  Coburn 
V.  Odell,  30  N.  H.  540;  Norfolk  v.  Gaylord, 
28  Conn.  309;  Austin  v.  Prince,  1  Sim.  348; 
Com.  V.  Pratt,  126  Mass.  462;  Chamber- 
lain V.  Wilson,  12  Vt.  491,  36  Am.  Dec.  356; 
Lockett  V.  State,  63  Ala.  5;  People  v.  Fres- 
hour,  55  Cal.  375.  So,  under  modern  stat- 
utes permitting  accused  persons  to  take 
the  stand  in  their  own  behalf,  they  may 
be  subjected  to  cross-examination  upon 
their  statements.  State  v.  Wentworth,  65 
Me.  234,  20  Am.  Reo.  688;  State  v.  Wit- 
ham,  72  Me.  581;  State  v.  Ober,  52  X.  H. 
462,  13  Am.  Rep.  88;  Com.  v.  Bonner,  97 
Mass.  587;  Com.  v.  Morgan,  107  Mass. 
199;  Com.  v.  ^lullen,  97  Alass.  545;  Con- 
ners  v.  People,  50  X.  Y.  240;  People  v. 
Casey,  72  X.  Y.  393.'  "  Powers  v.  United 
States.  223  U.  S.  303,  56  L.  Ed.  448,  32  S. 
Ct.  281. 

One  accused  of  illegal  conduct  with 
reference  to  the  distillation  of  spirits, 
who  had  testified  in  chief  that  he  was 
employed  to  beat  apples  near  a  still,  with 
no  interest  in  them,  or  in  the  product,  or 
in  the  still,  may  be  asked  on  cross-exam- 
ination whether  he  had  not  previously 
worked  with  his  alleged  employer  at  a  dis- 
tillery and  made  brandy  with  him,  as  rel- 
evant to  his  claim  that  he  was  innocently 
occupied.  Powers  v.  United  States,  223 
U.   S.  303,  56  L.   Ed.  448.  32   S.   Ct.  281. 

135-6a.  Propriety  and  necessity. — 
Rickey  Land,  etc.,  Co.  v.  Miller,  218  U.  S. 
258.  54  L.  Ed.  1032,  31  S.  Ct.  11. 

Cross  bills  filed  by  some  of  the  defend- 
ants in  a  suit  brought  in  a  federal  circuit 
court  to  establish  the  relative  rights  of 
the  parties  as  appropriators  of  the  waters 
of  the  same  stream  are  maintainable,  al- 
though they  may  adinit  the  right  of  com- 
plainants, since  a  decree  as  between 
themselves  and  the  other  defendants  may 
be  necessary  to  prevent  a  decree  for  com- 
plainants from  working  injustice.     Rickey 


Land,  etc.,  Co.  v.  Miller,  218  U.  S.  258,  54 
L.  Ed.  1032,  31  S.  Ct.  11,  affirming  decree 
(1907)   152  F.  11,  22,  81  C.  C.  A.  207,  218. 

"It  is  urged  that  the  cross  bills  on 
which  the  bill  and  injunction  in  the  sec- 
ond case  were  based  were  not  maintain- 
able because  not  in  aid  of  the  defenses  to 
the  original  suit  of  Miller  and  Lux.  But 
it  might  very  well  be,  as  was  shown  by 
the  argument  for  the  respondents,  that 
even  if  they  admitted  the  right  of  Miller 
and  Lux  still  a  decree  as  between  them- 
selves and  other  defendants  would  be 
necessary  in  order  to  prevent  a  decree  for 
Miller  and  Lux  from  working  injustice. 
See  further,  Ames  Realty  Co.  z\  Big  In- 
dian Mining  Co.,  146  Fed.  Rep.  166.  The 
cross  bills  being  maintainable  the  juris- 
diction in  respect  of  them  follows  that 
over  the  principal  bill.'  Rickey  Land, 
etc.,  Co.  r.  Miller,  218  U.  S.  258,  263,  54  L. 
Ed.  1032,  31  S.  Ct.  11. 

138-24a.  Filing  cross  bill — Terms. — 
"Permission  to  file  a  cross  bill  which 
seeks  to  suspend  the  operation  of  a  de- 
cree for  the  discharge  of  the  trustee  in  a 
voting  trust  agreement,  and  the  transfer 
of  the  stock  to  the  new  trustee,  is  prop- 
erly refused  defendants  who  assert  claims 
to  the  stock  antagonistic  to  the  holders 
of  the  trust  certificates,  unless  thej'  apply 
.for  an  injunction  and  give  security,  espe- 
cially where  there  are  some  shares  of  stock 
held  by  the  trustee  to  which  such  defend- 
ants assert  no  claim."  Moore  Printing, 
etc..  Co.  V.  National  Sav..  etc.,  Co.,  218  U. 
S.  422,  54  L.  Ed.  1093,  31  S.  Ct.  64. 

"But  it  is  said  that  the  trial  court  erred 
in  refusing  to  receive  the  cross  bill  ex- 
cept upon  the  terms  prescribed  in  the  de- 
cree, which  were,  as  we  have  seen,  that 
they  apply  for  an  injunction  and  give  a 
bond,  as  provided  l)y  equity  rule  42  of  the 
court.  In  the  motion  for  permission  to 
file  the  cross  bill,  orders  were  asked  that 


453 


151-152  CROSSINGS. 

CROSS-EXAMINATION.— See  post,  Witnesses. 


\'ol.  V. 


CROSSINGS. 

in.  Contributory  Negligence  of  Traveler,  454. 

A.  General   Principles,  454. 

B.  Duty  to  Stop,  Look  and  Listen,  454. 

IV.  Actions  for  Injuries  at  Crossings,  454. 
B.   Province  of  Court  and  Jury,  454. 

CROSS   REFERENCES. 

See  the  title  Crossings,  vol.  5,  p.  148,  and  references  there  given. 

In  addition,  see  ante,  Carriers,  p.  216;  post.  Railroads.  As  to  the  constitu- 
tionality of  a  state  regulation  as  to  the  manner  in  which  trains  shall  approach  and 
give  notice  of  their  approach  to  dangerous  crossings,  see  ante.  Constitutional 
Law,  p.  264. 

III.    Contributory  Negligence   of  Traveler. 

A.  General  Principles. — See  note   12. 

B.  Duty  to  Stop,  Look  and  Listen. — See  note  14. 

IV.  Actions  for  Injuries  at  Crossings. 
B.  Province  of  Court  and  Jury. — See  note  20. 


would  have  suspended  the  operation  of 
the  decree  and  transfer  of  the  stock  cer- 
tificates. And  it  will  further  be  observed 
that  the  stock  was  not  to  be  transferred 
by  the  decree  to  those  whose  title  appel- 
lants were  seeking  to  divest,  but  to  a  re- 
sponsible trust  company,  and  that  there 
were  shares  of  stock  held  by  the  trust 
companj^  in  which  Others  had  an  interest 
which,  it  is  not  contended,  is  subject  to  a 
trust  in  favor  of  appellants.  The  purpose 
of  the  cross  bill  was,  therefore,  to  prevent 
the  use  of  property  under  a  claim  of  title 
to  it  which  would  take  time  to  determine, 
and  it  was  not  inequitable  in  the  court  to 
require  security  of  the  appellants,  the  se- 
curity which  was  required  of  other  liti- 
gants who  sought  the  same  kind  of  re- 
lief." Moore  Printing,  etc.,  Co.  v.  Na- 
tional Sav.,  etc.,  Co.,  218  U.  S.  422,  430,  54 
L.  Ed.  1093,  31  S.  Ct.  64. 

The  trustee  in  a  voting  trust  agreement, 
charged  with  the  duty  of  holding  and  vot- 
ing the  corporate  stock  deposited  with  it, 
and  with  collecting  and  paying  over  the 
dividends  to  the  holders  of  the  triist  cer- 
tificates, which  files  a  bill  seeking,  in  ac- 
cordance with  the  trust  agreement,  to  be 
permitted  to  resign,  and  to  be  discharged 
from  all  liability  upon  transferring  the 
stock  to  the  new  trustee  chosen  by  the 
holders  of  the  trust  certificates,  is  entitled 
to  judgment  on  the  pleadings  which  grants 
the  relief  sought  unless  those  defendants 
not  consenting,  but  asserting  in  their  an- 


swers claims  to  the  stock  antagonistic  to 
their  codefendants,  the  holders  of  the 
trust  certificates,  shall  comply  with  the 
terms  on  which  the  court  will  permit  the 
filing  of  a  cross  bill.  Moore  Printing,  etc.. 
Co.  V.  National  Sav.,  etc.,  Co.,  218  U.  S. 
422,  54  L.  Ed.  1093,  31  S.  Ct.  64,  affirming 
decree  (1908),  31  App.  D.  C.  452. 

151-12.  General  principles. — Flannelly 
:'.  Delaware,  etc.,  Co..  225  U.  S.  597,  56  L. 
Ed.  1221,  32  S.  Ct.  783. 

151-14.  Duty  to  stop,  look  and  listen. — 
Flannelly  v.  Delaware,  etc.,  Co.,  225  U.  S. 
597,  56  L.  Ed.  1221,  32  S.  Ct.  783. 

152-20.  Province  of  court  and  jury. — A 
person  attempting  to  drive  across  the 
tracks  at  a  highway  crossing  without 
awaiting  the  further  movements  of  a 
freight  train  which,  after  passing  between 
her  and  the  passenger  tracks,  had  come 
to  a  full  stop  some  150  feet  beyond  the 
crossing,  partly  obstructing  her  view,  is 
not,  as  a  matter  of  law,  guilty  of  such  con- 
tributory negligence  as  will  bar  a  recov- 
ery for  the  damages  resulting  from  a  col- 
lision with  a  rapidly  moving  passenger 
train  not  giving  the  usual  warning  signal, 
especially  where  it  was  the  rear  wheel  of 
the  wagon  which  was  struck,  and  the  un- 
expected behavior  of  the  horse  delayed 
her  forward  progress.  Flannelly  v.  Dela- 
ware, etc.,  Co.,  225  U.  S.  597,  56  L.  Ed. 
1221,  32  S.  Ct.  783.  See,  also,  post,  NEG- 
LIGENCE. 


454 


Vol.  V.  DAMAGES.  154-197 

CRUEL  AND  UNUSUAL  PUNISHMENT.— See  ante,  Constitutional 
Law,  p.  264. 

CUBA. — See  Cuba,  vol.  5,  p.  153,  and  references  there  given.  In  addition, 
•  see  post,  International  Law;    United  States. 

CUBAN  LAW. — See  post,  Foreign  Laws. 

CUMULATIVE  EVIDENCE.— See  post,  New  Trials. 

CURRENT.— See  note  1. 

CURTESY. — See  the  title  Curtesy,  vol.  5,  p.  155,  and  references  there  given. 

CUSTODIA  LEGIS.— See  ante,  Courts,  p.  398. 

CUSTODY  OF  PRISONER.— See  post.  Habeas  Corpus. 

CUSTOM  DUTIES.— See  post,  Revenue  Laws. 

CUSTOM  LAWS.— See  post.  Revenue  Laws. 

CUSTOMS. — See  post,  Judicial  Notice;    Usages  and  Customs. 

CUTTING  TIMBER  ON  PUBLIC  LANDS.— See  post,  Mines  and  Min- 
erals ;   Public  Lands. 


DAMAGES. 

III.  Measure   and  Elements  of  Damages,   455. 

A.  Pleasure  of  Damages,  455. 

1.   Unliquidated   Damages,   455. 

a.  Compensation  as  Determining.  455. 
(1)   Rule  Stated  and  Applied,  455. 
,/  (b)  Application  of  Rule  in  Actions  for  Breach  of  Con- 

tract, 455. 
bb.  Specific  Contracts,  455. 

(ee)  Contracts  for  Sale  of  Realty,  455. 

V.  Proceedings  to  Recover  Damages,  455. 

F.  Assessment  of  Damages,  455. 

CROSS   REFERENCES. 

See  the  title  Damages,  vol.  5,  p.  157,  and  references  there  given. 

III.  Measure  and  Elements  of  Damages. 

A.  Measure  of  Damages — 1.  Unliquidated  Damages — a.  Compensation  as 
Determining — (1)  Rule  Stated  and  Applied — (b)  Application  of  Rule  in  Ac- 
tions for  Breach  of  Contract — bb.  Specific  Contracts — (ee)  Contracts  for  Sale 
of  Realty. — See  note  58. 

V.  Proceedings  to  Recover  Damages. 
F.  Assessment  of  Damages. — In  General. — See  note  S7. 

154-1.     Current    yearly    pay. — Congress,  171-58.     Breach  of  contract  for  sale  of 

in  using  the  words,  "current  yearly  pay,''  land. — The  difference  between  the  pur- 
as  the  basis  of  the  computation  of  the  chase  price  and  the  market  value  at  the 
longevity  pay  provided  for  by  the  Act  of  time  of  executing  a  contract  for  the  sale 
May  13,  1908,  must  be  deemed  to  have  of  real  property  is  the  measure  of  dam- 
adopted  its  construction  of  those  words  ages  in  an  action  by  the  vendee  against 
as  used  in  §  1262,  Revised  Statutes,  giving  the  vendor,  founded  on  the  latter's  re- 
a  ten  per  cent  longevity  increase  on  "cur-  fusal  to  perform.  Harten  v.  Lofifler,  213 
rent  yearly  pay,"  which  it  declared,  by  the  U.  S.  397,  53  L.  Ed.  568,  29  S.  Ct.  351. 
Act  of  June  30,  1882,  should  he  computed  197-57.  Function  of  jury  to  determine 
on  the  yearly  pay  of  the  grade.  Plummer  amount  where  not  fixed  by  rule  of  law. — 
V.  United  States,  224  U.  S.  137,  56  L.  Ed.  Modification  of  a  requested  instruction  as 
697,  32  S.  Ct.  467.  See  ante,  ARMY  AND  to  damages  in  an  action  by  a  father  for 
NAVY,  p.  150.  death  of  his  minor  children  by  adding  that 

455 


199-200 


DEATH  BY  WRONGFUL  ACT. 


Vol.  V. 


DAMNUM  ABSQUE  INJURIA.— See  ante,  Actions,  p.  7. 

DAMS. — See  post,  Navigable  Waters;    Waters  and  Watercourses. 

DATE. — See  ante,  Army  and  Navy,  p.  150;  Bills,  Notes  and  Checks,  p. 
204. 

DAY'S  WORK.— See  post,  Labor. 

DEALER.— See  note  3. 

DEALING  IN  FUTURES.— See  post.  Jurisdiction. 

DEATH. — See  ante.  Abatement,  Revival  and  Survival,  p.  1 ;  Appeal  and 
Error,  p.  34;   post.  Death  by  Wrongful  Act;   Partnership. 


DEATH  BY  WRONGFUL  ACT. 

CROSS   REFERENCES. 

See  the  title  Death  by  Wrongful  Act,  vol.  5,  p.  200,  and  references  there 
given. 

In  addition,  see  ante.  Appeal  and  Error,  p.  34;  Conflict  oe  Laws,  p.  250; 
Constitutional  Law,  p.  264;  post,  Impairment  oe  Obligation  of  Contracts; 
Jurisdiction. 

As  to  bringing  suit  in  a  court  of  admiralty  for  death  by  wrongful  act  on  the 
high  seas,  see  ante,  Admiralty,  p.  10.  As  to  right  of  a  nonresident  to  remove 
an  action  for  wrongful  death  from  a  state  to  a  federal  court,  see  post.  Removal 
OF  Causes.  As  to  liability  of  a  master  for  death  of  servant,  see  post,  Master 
and  Servant.  As  to  right  of  an  alien  to  bring  an  action  for  death  by  wrongful 
act,  see  ante,  Aliens,  p.  18;  post.  Treaties. 

As  to  employers'  liability  act  of  1908,  see  post.  Master  and  Servant. 

Under  Maritime  Law. — In  the  absence  of  statute  the  maritime  law  of  this 
country,  at  least,  gives  no  right  of  action  for  the  death  of  a  human  being  on  the 
high  seas  or  on  waters  navigable  from  the  seas,  caused  by  negligence.^* 


"the  amount  of  damages  can  not  be  fixed 
by  the  evidence,  but  must  be  the  result  of 
your  own  judgment,"  can  not  be  regarded 
as  open  to  the  objection  that  the  jurors 
were  thereby  informed  that  they  pos- 
sessed the  power  capriciously  to  fix  the 
amount  of  the  damages,  when  read  in  con- 
nection with  prior  instructions  to  the  ef- 
fect that  the  measure  of  damages  was  the 
net  value  to  the  father  of  the  services  of 
his  children  during  their  minority,  espe- 
cially where  the  trial  court  is  not  asked 
to  remove  the  supposed  ambiguity.  Judg- 
ment (1907)  89  P.  212,  18  Okl.  107,  af- 
firmed. Waters-Pierce  Oil  Co.  v.  Des- 
elms,  212  U.  S.  159,  53  L.  Ed.  453,  29  S.  Ct. 
270. 

199-3.  Wholesale  dealers  include  cor- 
porations.— In  the  .Act  of  May  9,  1902,  re- 
quiring wholesale  dealers  in  Olemargarine 
to  keep  certain  books  and  make  cer- 
tain returns,  the  words  "wholesale  deal- 
ers," embrace  corporations.  United  States 
V.  Union  Supply  Co.,  215  U.  S.  50,  54,  54 
L.  Ed.  87,  30  S.  Ct.  15.  See  post,  PO- 
LICE  POWER. 

Sale  of  articles  by  manufacturers. — 
Merchants  and  dealers  who  sell  patented 
things  in  the  usual  course  of  business  are 
exempted   from   the   operation   of   Kirby's 


(Ark.)  Dig.,  §§  513-516,  requiring  a  nego- 
tiable instrument  taken  in  payment  for 
patented  article  to  show  on  its  face  for 
what  it  was  given  or  be  void.  The  man- 
ufacturer of  the  patented  article  who  sells 
it  in  the  usual  course  of  business  in  his 
store  or  factory  would  probably  come 
within  the  exception.  He  may  be  none 
the  less  a  dealer,  selling  in  the  usual 
course  of  his  business,  because  he  is  also 
a  manufacturer  of  the  article  dealt  in. 
Ozan  Lumber  Co.  v.  Union  County  Nat. 
Bank,  207  U.  S.  251,  52  L.  Ed.  195,  28 
S.  Ct.  89.  Secnnte,  BILLS.  NOTES  AND 
CHECKS,  p.   204;    PATENTS. 

200-3a.  It  was  settled  in  The  Harris- 
burg.  119  U.  S.  199,  30  L.  Ed.  358,  7  S.  Ct. 
140,  that  no  damages  can  be  recovered  in 
admiralty  for  the  death  of  a  human  being 
on  the  high  seas,  or  on  the  waters  navi- 
gable from  the  seas,  caused  by  negligence, 
in  the  absence  of  an  act  of  congress  or  a 
statute  of  a  state,  giving  the  right  of  ac- 
tion therefor.  As  said  in  Butler  v.  Bos- 
ton, etc.,  Steamship  Co.,  130  U.  S.  527,  555, 
32  L.  Ed.  1017,  9  S.  Ct.  612,  the  maritime 
law  of  this  country,  at  least,  gives  no  such 
right.  La  Bourgogne,  210  U.  S.  95.  52  L. 
Ed.  973,  28  S.  Ct.  664. 


456 


Vol.  V. 


DEBT,  THE  ACTION  OF. 


203-206 


DEATH  DUTY.— See  post.  Succession  Taxes. 

DE  BONIS  NON. — See  post,  Executors  and  Administrators. 

DEBT.— See  note  1. 


DEBT,  THE  ACTION  OF. 

II.  Nature  of  Action,  457. 
III.  Right  to  Maintain  Action,  457. 
A.  General  Rule,  457. 
E.  Recovery  of  Taxes  or  Duties,  458. 
H.  Fines,  Forfeitures  and  Penalties,  458. 

Trial — Direction  of  Verdict,  458. 

CROSS  REFERENCES. 

See  the  title  Debt,  the  Action  of,  vol.  5,  p.  205,  and  references  there  given. 

II.  Nature  of  Action. 

An  action  of  debt  is  in  the  nature  of  a  civil  action.-'' 

III.  Right  to  Maintain  Action. 
A.  General  Rule. — See  note  3. 


Vi 


203-1.  Taxes. — "A  tax  may  or  may  not 
be  a  debt  under  a  particular  statute,  ac- 
cording to  the  sense  in  which  the  word 
is  found  to  be  used.  But  whether  the 
government  may  recover  a  personal  judg- 
ment for  a  tax  depends  upon  the  ex  si- 
ence  of  the  duty  to  pay,  for  *^he  enforce- 
ment of  which  another  remedy  has  not 
been  made  exclusive.  Whether  an  ac- 
tion of  debt  is  maintainable  depends  not 
upon  the  question  who  is  the  piamtirt  or 
in  what  manner  the  obligation  was  in- 
curred, but  it  lies  whenever  there  is  due 
a  simi  either  certain  or  readily  reduced  to  cer- 
tainty." United  States  v.  Chamberlin,  219 
U.  S.  250,  55  L.  Ed.  204,  31  S.  Ct.  155. 
See  post,  REVENUE  LAWS;  TAXA- 
TION. 

"The  legal  tender  acts  expressly  pro- 
vided that  the  notes  should  be  receiva- 
ble for  national  taxes,  and  the  context  for- 
bade the  conclusion  that  Congress  in- 
tended to  include  state  taxes  under  the 
term  debts,  and  there  was  hence  no  con- 
flict with  the  statute  of  Oregon  which  re- 
quired the  taxes  due  the  state  to  be  col- 
lected in  coin."  United  States  v.  Cham- 
berlin, 219  U.  S.  250,  55  L.  Ed.  204,  31  S. 
Ct.    155. 

206-2a.  Nature  of  action. — Hepner  v. 
United  States,  213  U.  S.  103,  53  L.  Ed. 
720,   29    S.    Ct.   474. 

"In  Jacobs  v.  United  States,  1  Brock, 
520,  525,  Fed.  Cas.  No.  7,157,  the  ques- 
tion arose  whether  the  United  States 
could  maintain  an  action  of  debt  to  re- 
cover the  specific  sum  which  an  act  of 
congress  (1  Stat,  at  E.  76,  chap.  20)  pro- 
viding for  additional  revenue  declared 
should  be  forfeited  and  paid  by  any  per- 


son guilty  of  the  ofifense  of  forcibly  res- 
cuing or  causing  to  be  arrested,  any 
spirits,  etc.,  after  the  same  had  been 
seized  by  the  collector.  Chief  Justice 
Marshall  held  that  an  action  of  that  kind 
was  a  'civil  cause'  within  the  meaning  of 
the  9th  section  of  the  Judiciary  Act  .of 
1789,  defining  the  jurisdiction  of  the  dis- 
trict courts  of  the  United  States.  In 
Stearns  z'.  United  States,  2  Paine,  300, 
Fed.  Cas.  No.  13,341,  Mr.  Justice  Thomp- 
son in  the  circuit  court  of  the  United 
States  for  the  district  of  Vermont,  held 
that  actions  for  penalties  were  civil  ac- 
tions, both  in  form  and  in  substance,  cit- 
ing 3  Bl.  Com.  158,  and  Atcheson  v.  Ev- 
eritt,  1  Cowp.  382,  391.  In  the  latter 
case,  which  vvas  an  action  of  debt,  based 
upon  an  English  statute.  Lord  Mansfield 
said  that  a  penal  action  'is  as  much  a  civil 
action  as  an  action  for  money  had  and 
received.'"  Hepner  v.  United  States,  213 
U.    S.    103,    53    L.    Ed.   720,   29    S.    Ct.   474. 

206-3.  Debt  of  record,  specialty  or  sum 
certain. — Debt  lies  whenever  a  sum  cer- 
tain is  due  to  the  plaintiff,  or  a  sum  which 
can  readily  be  reduced  to  a  certainty,  a 
sum  requiring  no  future  valuation  to  set- 
tle its  amount.  "It  is  not  necessarily 
founded  upon  contract.  It  is  immaterial 
in  what  manner  the  obligation  was  in- 
curred, or  by  what  it  is  evidenced,  if  the 
sum  owing  is  capable  of  being  definitely 
ascertained.  The  Act  of  1823  fixes  the 
amount  of  the  liability  at  double  the 
value  of  the  goods  received,  concealed, 
or  purchased,  and  the  only  party  injured 
by  the  illegal  acts  which  subject  the  per- 
petrators to  the  liability  is  the  United 
States."     Hepner  v.  United  States,  213  U. 


457 


208-212 


DECISION. 


Vol.  V. 


E.  Recovery  of  Taxes  or  Duties. — See  notes  12,  14. 
H.  Fines,  Forfeitures  and  Penalties. — See  note  15. 

V^.  Trial — Direction  of  Verdict. 

It  has  been  held  that  on  the  trial  of  an  action  of   debt  the  court  may  direct  a 
verdict  where  the  evidence  warrants  it.^^a 


DEBTOR  AND   CREDITOR.— See  note  1. 

DEBTS. — See  ante,  Attachment  and  Garnishment,  p.  156;  Bankruptcy, 
p.  168;  post,  Executions;  Payment.  As  to  debts  of  the  United  States,  see 
post,  United  States.  As  to  the  action  of  debt,  see  ante.  Debt,  the  Action  of, 
p.  457. 

DEBTS  OF  DECEDENTS.— See  post.  Executors  and  Administrators. 

DECEDENTS. — See  post.  Descent  and  Distribution;  Executors  and 
Administrators. 

DECEIT.— See  post,  Fraud  and  Deceit. 

DECISION, — See  ante.  Appeal  and  Error,  p.  34;  Courts,  p.  398;  post.  Judg- 
ments and  Decrees.  As  to  finality,  see  ante.  Appeal  and  Error,  p.  34;  post. 
Judgments  and  Decrees.    As  to  rule  of  stare  decisis,  see  post.  Stare  Decisis. 


S.   103,   53   L.    Ed.   720,   29   S.   Ct.   474. 

"Whether  an  action  of  debt  is  main- 
tainable depends  not  upon  the  question 
who  is  the  plaintiff  or  in  what  manner 
the  obligation  was  incurred,  but  it  lies 
whenever  there  is  due  a  sum  either  cer- 
tain or  readily  reduced  to  certainty." 
United  States  v.  Chamberlin,  219  U.  S. 
250,  262,  55   L.   Ed.   204,  31   S.   Ct.  155. 

208-12.  Duties — Recovery  of  custom 
duties  by  crown. — "At  common  law,  cus- 
toms duties  were  recoverable  by  the 
crown  by  an  information  in  debt  or  an 
exchequer  information  in  the  nature  of  a 
bill  in  equity  for  discovery  and  account. 
These  informations  rested  upon  the  gen- 
eral principle  'that  in  the  given  case  the 
common  law  or  the  statute  creates  a  debt, 
charge,  or  duty  in  the  party  personally 
to  pay  the  duties  immediately  upon  the 
importation;  and  that,  therefore,  the  ordi- 
nary remedies  lie  for  this,  as  for  any 
other  acknowledged  debt  due  to  the 
crown.' "  United  States  v.  Chamberlin, 
219  U.  S.  250,  258,  55  L.  Ed.  204,  31  S. 
Ct.    155. 

208-14.  Taxes. — "A  tax  debt  may  or 
may  not  be  a  'debt'  under  a  particular 
statute,  according  to  the  sense  in  which 
the  word  is  found  to  be  used.  But 
whether  the  government  may  recover  a 
personal  judgment  for  a  tax  depends  upon 
the  existence  of  the  duty  to  pay,  for  the 
enforcement  of  which  another  remedy 
has  not  been  made  exclusive."  United 
States  V.  Chamberlin,  219  U.  S.  250,  262, 
55  L.  Ed.  204,  31  S.  Ct.  155.  See  post, 
TAXATION. 

208-15.  Fines,  forfeitures  and  penalties. 
— The  penalty  incurred  under  the  Act  of 
March  3,  1903  (32  Stat,  at  L.  1213,  1214, 
chap.  1012),  §§  4,  5,  for  inducing  an  alien 
to  migrate  to  the  United  States  for  the 
purpose  of  performing  labor  there,  may 
be    recovered    bv    a    civil    action    of    debt 


brought  by  the  United  States.  Hepner 
V.  United  States,  213  U.  S.  103,  53  L.  Ed. 
720,  29  S.  Ct.  474.  See,  also,  ante, 
ALIENS,  p.  18;  post,  PENALTIES 
AND   FORFEITURES. 

210-30a.  Directing  verdict. — Hepner  v. 
United  States,  213  U.  S.  103,  53  L.  Ed. 
720,  29  S.  Ct.  474.     See  post,  VERDICT. 

The  trial  court  may  direct  a  verdict  in 
favor  of  the  government  plaintiff  in  an 
action  of  debt  to  recover  the  penalty  in- 
curred under  the  Act  of  March  3,  1903, 
§§  4,  5,  for  inducing  an  alien  to  migrate 
to  the  United  States  for  the  purpose  of 
performing  labor  there,  where  it  appears, 
by  undisputed  testimony,  that  the  defend- 
ant has  committed  the  offense  out  of 
which  the  cause  of  action  arises.  Hep- 
ner V.  United  States,  213  U.  S.  103,  53 
L.   Ed.  720,  29   S.   Ct.  474. 

212-1.  Clerk  of  federal  district  court 
debtor  as  to  surplus  fees   not  a  trustee. 

— The  duty  of  a  clerk  of  a  federal  dis- 
trict court  to  pay  over  to  the  United 
States  the  surplus  fees  and  emoluments 
of  his  office  which  his  half-yearly  return 
or  the  audit  thereof  shows  to  exist  over 
and  above  the  compensation  and  allow- 
ances authorized  by  law  to  be  retained 
by  him  is  not  governed  by  the  federal 
statutes  relating  to  the  embezzlement  of 
"public  money"  or  "money  or  property 
of  the  United  States;"  but  such  fees  and 
emoluments  are  received  by  the  clerk, 
not  as  moneys  or  property  belonging  to 
the  United  States,  but  as  the  amount  al- 
lowed to  him  for  his  compensation  and 
office  expenses  under  the  statutes  defin- 
ing his  rights  and  duties,  and  with  respect 
to  the  amount  payable  when  the  return 
is  made,  the  clerk  ns  not  trustee,  but  a 
debtor.  United  States  v.  Mason,  218  U. 
S.  517,  54  L.  Ed.  1133,  31  S.  Ct.  28.  See 
ante,  CLERKS  OF  COURT,  p.  241. 


458 


Vol.  V.  DE  FACTO  CORPORATIONS.  221-226 

DECLARATION. — See  post,  Declarations  and  Admissions.  As  to  decla- 
ration of  intention  to  become  citizen,  see  post,  Naturawzation.  As  to  decla- 
ration in  preemption  of  public  land,  see  post,  Public  Lands.  As  to  declarations 
in  pleadings,  see  post.  Pleading. 

DECLARATIONS  AND  ADMISSIONS. 

III.  Oral  Declarations  and  Admissions,  459. 
A.  Admissibility,  459. 

3.  When  Made  by  Privies,  459. 

d.  Testators  and  Intestates,  459. 
9y2.  When  ^lade  by  a  Wife.  459. 

CROSS  REFERENCES. 

See  the  title  Declarations  and  Admissions,  vol.  5,  p.  214,  and  references 
there  given. 

In  addition,  see  post.  Wills. 

III.  Oral  Declarations  and  Admissions. 

A.  Admissibility — 3.  When  Made  by  Privies — d.  Testators  and  Intestates. 
— Validity  of  Will. — As  a  general  rule  declarations  made  by  a  testator,  either 
before  or  after  the  date  of  the  alleged  will,  unless  made  near  enough  to  the  time 
of  its  execution  to  become  a  part  of  the  res  gestae,  are  not  admissible  as  evidence 
in  favor  of  or  against  the  validity  of  the  will.^^'^ 

Ignorance  of  Contents  of  Will. — Declarations  of  an  illiterate  testatrix 
prior  and  subsequent  to  the  date  of  her  will,  as  to  how  she  intended  to  dispose, 
or  had  disposed,  of  her  property,  are  properly  held  inadmissible  to  show  that  she 
was  ignorant  of  its  contents,  where  there  was  no  evidence  of  testamentary  inca- 
pacity at  the  date  of  the  will,  and  nothing  in  the  evidence  excluded  from  which  it 
could  be  inferred,  and  there  was  no  evidence  of  fraud  or  undue  influence.'*^^ 

9y2.  When  Made  by  a  Wife. — Statements  made  by  a  widow  with  reference  to 
conversations  with  her  husband  are  inadmissible  to  show  that  certain  transac- 
tions on  his  part  were  in  fraud  of  creditors,  especially  w^here  she  was  not  herself 
called  as  a  witness.^^^ 

DECREES. — See  post.   Judgments  and  Decrees. 

DECREES  PRO  CONFESSO.— See  post.  Judgments  and  Decrees. 

DEDICATION.— See  the  title  Dedication,  vol.  5,  p.  235,  and  references 
there  given. 

DEEDS. — See  the  title  Deeds,  vol.  5,  p.  245,  and  references  there  given.  In 
addition,  see  ante.  Acknowledgments,  p.  7;  post,  Fraud  and  Deceit; 
Laches;  Mortgages  and  Deeds  of  Trust;  Public  Lands;  Rescission,  Can- 
cellation AND  Reformation  ;  Vendor  and  Pl'rchaser.  See,  also,  post.  De- 
scription. As  to  federal  decisions  as  to  deeds  in  conformity  with  decisions  of 
the  state  courts,  see  ante.  Courts,  p.  398. 

DEEDS  OF  TRUST.— See  post,  Mortgages  and  Deeds  of  Trust. 

DE  FACTO  CORPORATIONS.— See  ante.  Corporations,  p.  381. 

221-38a.    Declarations  relating  to  valid-  L.   Ed.   783,  28   S.   Ct.   561. 

ity   of   will. — Lipphard   v.    Humphrej^  200  226-66a.     Statements    by    widow    as    to 

U.  S.  26-i.  52  L.  Ed.  78.3,  28  S.  Ct.  561.  conversations  with  her  husband.— Will  v. 

221-40a.     Declarations    inadmissible    to  Tornabells,   217    U.    S.   47,   54   L.    Ed.   660, 

show    ignorance    of    contents    of    will. —  30  S.  Ct.  424. 
Lipphard  r.   Humphrey,  209  U.   S.  264,  52 

459 


285-286  DELAY.  Vol.  V. 


DE  FACTO  OFFICERS. 

II.  Public  Officers,  460. 

E.  Liabilities  to  Rightful  Incumbent  of  Compensation  and  Fees  Received, 
460. 

CROSS  REFERENCES. 

See  the  title  De  Facto  Officers,  vol.  5,  p.  283,  and  references  there  given. 

II.  Public  Officers. 

E.  Liabilities  to  Rightful  Incumbent  of  Compensation  and  Fees  Re- 
ceived.— A  de  jure  officer  may  recover  from  the  de  facto  incumbent  the  fees 
and  emoluments  of  the  office  received  during  incumbency .*^^  But  the  cost  of  ob- 
taining the  emoluments  of  an  office,  which  would  have  been  entailed  on  any  per- 
son who  might  have  held  the  office,  may  be  set  off  by  an  ousted  de  facto  officer  in 
an  action  by  the  de  jure  officer  for  official  earnings.^*^ 

DE  FACTO   SOVEREIGN.— See  post,  Internationai.  Law. 
DEFALCATION. — See    ante.    Banks   and    Banking,  p.  184;    post,  Embh;z- 

ZLKMENT. 

DEFAMATION.— See  post,  Libi^l  and  Slander. 

DEFAULT. — See  ante.  Bills,  Notes  and  Checks,  p.  204;  Chattel  Mort- 
gages, p.  230;  post,  Mortgages  and  Deeds  of  Trust;  Principal  and  Surety. 
As  to  default  judgment,  see  post,  Judgments  and  Decrees. 

DEFAULT  IN  PLEADING.— See  post.  Pleading. 

DEFAULT  JUDGMENTS-.- See  post,  Judgments  and  Decrees. 

DEFINITIONS. — See  the  particular  words,  phrases,  and  titles  throughout  this 
supplement. 

DEFRAUD.— See  note  4a. 

DE  JURE  OFFICERS.— See  post,  Pup.lic  Officers. 

DELAY. — See  post,  Estoppel;  Laches;  Limitation  of  Actions  and  Ad- 
v^ERSE  Possession  ;  Patents  ;  Public  Lands.  As  to  hindering  and  delaying 
creditors,  see  post,  Fraudulent  and  Voluntary  Conveyances. 

285-6a.      Liabilities    to     rightful    incum-  United    States    Revised    Statutes,    §    5440, 

bent   of  compensation   and  fees  received.  making  criminal  conspiracies  "to  defraud 

— Sandoval    v.    Albright,    93    P.    717.    af-  the   United   States  in   any   manner   or  for 

firmed.     Albright  v.   Sandoval,   216   U.    S.  any    purpose."     The    contention    that  the 

331,  54  L.   Ed.  502,  30  S.  _Ct.  318.  word   "defraud"   must   be    confined   to   its 

285-6b.    Cost   of   obtaining   emoluments  common-law   significance,   and   hence   can 

may  be  set  off. — Albright  r.  Sandoval,  216  not  embrace  the   acts  charged,  is  without 

U.  S.  331,  54  L.  Ed.  502,  30  S.  Ct.  318.  merit,  even  if  it  be  conceded  for  the  sake 

286-4a.       Defrauding      creditors.  —  Con-  of   argument    that    the    word    has    a    com- 

gress,  in  enacting  §  67e,  of  the   Bankrupt  mon-law  meaning,  and  that  that  meaning 

Act  of  July  1,   1898,  and  using  the  terms,  would  be  implied  if  t,he  word  stood  alone 

"to    hinder,    delay    or    defraud    creditors,"  in   the    statute.      United    States   v.    Keitel, 

intended    to    adopt    them    in    their    well-  211   U.    S.    370,    53    L.    Ed.    230,   29    S.    Ct. 

known   meaning   as   being   aimed   at    con-  12:!.     See  ante,  CONSPIRACY,  p.   256. 

veyances    intended    to    defraud.     Coder  v.  Postal  laws. — In  §  5480,  of  the  Revised 

Arts,  213  U.  S.  223,  242,  53  L.   Ed.  772,  29  Statutes,  prohibiting  the  use  of  mails  for 

S.    Ct.    436.      See    post,    FRAUDULENT  "any     scheme    or    artifice    to    defraud,"    a 

AND   VOLUNTARY   CONVEYANCES.  scheme  to  defraud  by  means  of  false  pre- 

A  conspiracy  to  obtain  title  to  coal  lands  tenses  is  "a  scheme  or  artifice  to  defraud" 

of    the    United    States,    in   clear  violation  within  the  plain   meaning  and  purpose  of 

of  the    prohibition    of  the    coal-land    laws  this  section.     United  States  v.  Stever,  222 

against     making     more    than    one    entry,  U.  S.  167,  56  L.  Ed.  145,  32  S.  Ct.  51.  '  See 

is    embraced    by    the    provisions    of    the  post,  POSTAL  LAWS. 

460 


Vol.  A\  DEMURRERS.  292-303 

DELAYING  CREDITORS.— See  post,  Fraudulent  and  Voluxtary  Cox- 

VEYAXCES. 

DELEGATION. — See  ante,  Coxstitutioxae  Law,  p.  264;  post,  Master 
and  Servaxt  ;    Prixcipai,  axd  Agext. 

DELINQUENTS.— See  post,  Taxation. 

DELIVERY.— See  ante,  Biles,  Notes  and  Checks,  p.  204;  Deeds,  p.  459. 
As  to  delivery  by  carriers,  see  ante.  Carriers,  p.  216;  post,  Ships  and  Ship- 
ping; Telegraphs  axd  TelEphoxEs.  As  to  delivery  of  land  patents,  see  post, 
Public  Laxds. 

DEMAND. — See  the  title  Demaxd,  vol.  5,  p.  287,  and  references  there  given. 


DEMURRER  TO  THE  EVIDENCE. 
VI.  Judgment  «,nd  Review,  461. 

CROSS  REFERENCES. 

See  the  title  Demurrer  to  the  Evidence,  vol.  5,  p.  289,  and  references  there 
given. 

VI.  Judgment  and  Review. 

Waiver  of  Error. — Any  supposed  error  committed  by  the  trial  court  in  over- 
ruling a  demurrer  to  the  evidence  is  waived  where  the  defendant  thereafter  pro- 
ceeds to  introduce  testimony  in  its  own  behalf. ^"'^ 


DEMURRERS. 

V.  When  Properly  Interposed,  461. 

F.  Failure  to  State  Cause  of  Action  or  Defense.  461. 
1.  Civil  Suit,  461. 

b.  To  Plea  or  Answer,  461. 
(2)  To  Answer,  461. 

(b)  Under  Code  Practice,  461. 

X.  Operation  and  Effect,  462. 
A.  As  Admission,  462. 

XII.  Hearing  and  Determination,  462. 
C.  Judgment  on  Demurrer.  462. 
5.  Appeal  and  Error,  462. 

CROSS  REFERENCES. 

See  the  title  Demurrers,  vol.  5,  p.  293,  and  references  there  given. 

V.  When  Properly  Interposed. 

F.  Failure  to  State  Cause  of  Action  or  Defense — 1.  Civil  Suit — b.  To 
Plea  or  Ansiver — (2)  To  Ansiver — (b)  Under  Code  Practice. — General  aver- 
ments in  an  amended  answer,  which  amounts  to  no  more  than  mere  conclusions, 
are  not  sufficient  as  against  a  demurrer.^^^ 

292-24a.       Waive      of      error. — McCabe,  303-56a.     To    answer   under    code    prac- 

etc,  Constr.  Co.  v.  Wilson,  209  U.  S.  275,       tice.— Southern    R.    Co.    v.    King.    217    U. 
52  L.  Ed.  788,  28  S.  Ct.  558.  S.  524,  5-4  L.   Ed.  868,  30  S.   Ct.   594.      See, 

generally,   post,    PLEADING. 

461 


309-334 


DBSCBNDANTS. 


Vol.  V. 


X.  Operation  and  Effect. 

A,  As  Admission. — See  notes  94,  95. 

The  correctness  of  an  opinion  set  forth  in  a  pleading  is  not  admitted  by  a 
demurrer.2^ 

XII.  Hearing  and  Datermination. 

C.  Judgment  on  Demurrer — 5.  Appeai,  and  Error. — See  ante,  Appeai,  and 
Error,  p.  34. 

Judgment  Sustaining  Demurrer. — The  issues  raised  by  a  plea  will  be  pre- 
sumed to  have  been  waived  or  abandoned  at  the  trial,  where,  after  a  demurrer  to 
such  plea  had  been  sustained  without  exception  taken,  defendant  went  to  trial 
upon  the  merits  without  objection,  and  introduced  evidence  upon  other  issues, 
and  no  evidence  was  offered  or  introduced  on  either  side  relating  to  the  matters 
.set  out  in  such  plea.^^* 


18;    Chinese    Exclusion    Acts, 


DENIAL. — See  post.  Pleading. 

DEPORTATION.— See   ante,   Aliens,   p. 
p.  232. 

DEPOSIT. — See  ante.  Banks  and  Banking,  p.  184. 

DEPOSITIONS. — See  the  title  Depositions,  vol.   5.  p.  321,  and  references 
there  given. 

DEPOSITOR. — See  ante,  Banks  and  Banking,  p.  184. 

DEPOSITOR'S  GUARANTY.— See  ante,  Banks  and  Banking,  p.  184. 

DEPRECIATED  CURRENCY.,— See  post.  Payment. 

DEPUTIES. — See  post.  Mines  and  Minerals;    Public  Ofeicers;    United 
States 

DESCENDANTS.— See  note  4a. 


309-94.  Operation  as  admission. — Con- 
tinental Wall  Paper  Co.  v.  Voight  & 
Sons  Co.,  212  U.  S.  227,  53  L.  Ed.  486,  29 
S.  Ct.  280;  Equitable  Life  Assur.  Soc.  v. 
Brown,  213  U.  S.  25,  53  L.  Ed.  682,  29  S. 
Ct.  404. 

310-95.  Legal  conclusions. — Equitable 
Life  Assur.  Soc.  v.  Brown,  213  U.  S.  2.5, 
53   L.   Ed.   682,  29   S.  Ct.  404. 

312-2a.  Correctness  of  opinion. — Equi- 
table Life  Assur.  Soc.  v.  Brown,  213  U. 
S.   25,   53    L.    Ed.   682,   29   S.    Ct.   404. 

Example. — "As,  for  instance,  in  regard 
to  the  probable  effect  in  the  future  of  the 
continued  control  of  the  defendant  by 
the  interests  existing  therein  up  to  1906. 
Hence,  any  construction  placed  by  com- 
plainant upon  the  character  of  the  de- 
fendant and  the  insurance  policy  issued 
by  the  defendant  to  the  complainant  is 
not  admitted,  nor  is  the  allegation  of  the 
ownership  of  the  surplus  by  the  policy 
holders,  as  alleged  by  the  complainant, 
nor  any  opinion  which  is  expressed  in 
the  bill  as  to  the  ability  of  the  defendant 
to  continue  business;  nor  is  any  other 
opinion  as  to  future  happenings  admitted 
by  the  demurrer."  Equitable  Life  As- 
sur. Soc.  V.  Brown,  213  U.  S.  25,  53  L. 
Ed.   682,   29    S.    Ct.   404. 


319-50a.  Judgment  sustaining  demurrer. 

— German  Alliance  Ins.  Co.  v.  Hale,  219 
U.   S.   307,   55   L.    Ed.  229,   31    S.   Ct.   246. 

"Under  these  circumstances,  we  are 
not  required  to  consider  the  questions 
raised  by  thut  plea.  On  this  record  we 
may  fairly  assume  that  the  defendant  at 
the  trial  waived  or  abandoned  the  issues 
raised  bv  the  plea."  German  Alliance 
Ins.  Co.  'v.  Hale,  219  U.  S.  307,  55  L.  Ed. 
229,  31  S.  Ct.  246,  citing  Garrard  v.  Rey- 
nolds, 4  How.  123,  126,  11  L.  Ed.  903; 
Weed  T.  Crane,  154  U.  S.  570,  19  L.  Ed. 
712,    14   S.    Ct.    1215. 

334-4a.  Use  of  descendants  in  a  convey- 
ance.— No  trust  in  favor  of  the  then  ex- 
isting members  of  the  tribe  and  their  de- 
scendants was  created  by  letters  patent 
which,  following  the  language  of  the 
Choctaw  treaty  of  Sept.  27.  1830,  under 
the  authority  of  which  the  patent  was 
made,  granted  to  the  Choctaw  nation  a 
tract  of  land  "in  fee  simple,  to  them  and 
their  descendants,  to  enure  to  them  while 
they  shall  exist  as  a  nation  and  live  on 
it,"  but  such  grant  was  one  to  the  na- 
tion only,  limited  in  point  of  time  to  the 
corporate  existence  of  the  nation.  Flem- 
ing V.  McCurtain,  215  U.  S.  56,  54  L.  Ed. 
88,  30  S.  Ct.  16.  See  post,  PUBLIC 
LANDS. 


462 


Vol.  V. 


DEVICE. 


344 


DESCENT  AND  DISTRIBUTION. 

I.  Definitions  and  General  Consideration,  463. 
F.  Liability  of  Estates  to  Payment  of  Debts,  463. 

VI.  Agreements  Made  between  Heirs  to  Settle  Estates,  463. 

CROSS  REFERENCES. 

See  the  title  Descent  and  Distribution,  vol.  5,  p.  335,  and  references  there 
given. 

I.    Definitions  and  General  Consideration. 
F.    Liability  of  Estates  to  Payment  of  Debts. — See  post.  Executors  and 
Administrators. 

VI.  Agreements  Made  between  Heirs  to  Settle  Estates. 
Construction  of  Family  Settlement. — One-half  the  net  proceeds  of  the  sale 
of  real  property  in  which  a  testator  owned  an  undivided  half  interest,  and  not  the 
entire  net  proceeds  of  the  sale,  is  meant  by  the  word  "remainder,"  as  used  in  an 
agreement  for  the  division  of  the  inheritance  between  the  widow  as  usufructuary 
heiress  and  the  heirs,  who  were  also  the  owners  of  the  other  undivided  half  in- 
terest of  the  property,  by  which  such  property  was  to  be  sold,  certain  admitted 
debts  or  liabilities  were  to  be  deducted  from  the  proceeds,  and  the  remainder  was 
to  be  turned  over  to  the  widow,  to  be  used  by  her  as  usufructuary  heiress."*''' 

DESCRIPTION.— See  note  la. 
DESERTION.— See  post,  Divorce  and  Alimony. 
DESERT  LAND.— See  post,  Public  Lands. 

DESTRUCTION.— See  post,  Due  Process  of  Law;    Police  Power. 
DETINUE. — See  the  title  Detinue,  vol.  5,  p.  345,  and  references  there  given. 
DEVIATION.— See  note  a. 

DEVICE. — The  term  device  includes  anything  which  is  a  plan  or  contrivance ; 
it  need  not  be  necessarily  fraudulent.'' 


344-47a.  Construction  of  family  settle- 
ment.—Calvo  V.  De  Gutierrez,  208  U.  S. 
443,  52  L.   Ed.  564,  28  S.   Ct.  382. 

344-la.  Adequate  description  in  con- 
veyances.— "The  general  rule  in  refer- 
ence to  description  in  conveyances  is  thus 
stated  by  Jones  on  Real  Property,  §  323: 
'The  first  requisite  of  an  adequate  descrip- 
tion is  that  the  land  shall  be  identified 
with  reasonable  certainty,  but  the  degree 
of  certainty  required  is  always  qualified 
by  the  application  of  the  rule  that  that  is 
certain  which  can  be  made  certain.  A 
deed  will  not  be  declared  void  for  uncer- 
tainty if  it  is  possible,  by  any  reasonable 
rules  of  construction,  to  ascertain  from 
the  description,  aided  by  extrinsic  evi- 
dence, what  property  it  was  intended  to 
convey.  The  office  of  a  description  is  not 
to  identify  the  land,  but  to  furnish  the 
means  of  identification.  The  description 
will  be  liberally  construed  to  afiford  the 
basis  of  a  valid  grant.  It  is  only  when  it 
remains  a  matter  of  conjecture  what  prop- 
erty was  intended  to  be  conveyed,  after 
resorting  to  such  extrinsic  evidence  as  is 


admissible,  that  the  deed  will  be  held  void 
for  uncertainty  in  the  description  of  par- 
cels.' "  Ontario  Land  Co.  v.  Yordy,  212 
U.  S.  152,  157,  53  L.   Ed.  449.  29  S.  Ct.  278. 

347-a.  Deviation  of  ships. — "By  the  ad- 
miralty law,  a  departure  from  the  regular 
course  of  a  shipment  when  done  under 
the  usage  of  trade  is  no  deviation.  Host- 
etter  v.  Park,  137  U.  S.  30,  40,  34  L.  Ed. 
568.  So,  also,  in  Constable  v.  National 
Steamship  Co.,  154  U.  S.  51,  52,  38  L.  Ed. 
903,  it  was  said:  'In  the  law  maritime  a 
deviation  is  defined  as  a  "voluntary  de- 
parture without  necessity  or  any  reason- 
able cause,  from  the  regular  and  usual 
course  of  the  ship  insured." ' "  Empire 
State  Cattle  Co.  v.  Atchison,  etc.,  R.  Co., 
210  U.  S.  1,  21,  52  L.  Ed.  931,  28  S.  Ct.  607. 
See  post,  SHIPS  AND  SHIPPING. 

Deviation  by  carriers. — See  ante,  CAR- 
RIERS, p.  216. 

347-b.  Device. — Armour  Packing  Co. 
V.  United  States,  209  U.  S.  56,  52  L.  Ed. 
681,  28  S.   Ct.  428. 

Under  the  Elkins  Act  of  Feb.  19,  1903, 
making  it  a  criminal  offense  to  grant  or 


/ 


463 


347 


DISCOUNT. 


\'ol.  V. 


DEVISE.— See  post,  W11.LS. 

DIFFERENT.— See  note  5a. 

DILIGENCE. — See  post,  Negligence. 

DIPLOMATIC  AND  CONSULAR  OFFICERS.— See  references  ante,  under 
Ambassadors  and  Consuls. 

DIRECTING  VERDICT.— See  post,  Verdict. 

DIRECTORS. — See  post,  Officers  and  Agents  of  Private  Corporations. 

DIRECT  TAX.— See  post.  Duties;  Excise;  Revenue  Laws;  Taxation. 

DISBURSING  OFFICERS  AND  AGENTS.— See  ante,  Army  and  Navy, 
p.  150;  post,  Public  Officers;  United  Staters. 

DISCONTINUANCE. — See  post,  Dismissal,  Discontinuance  and  Nonsuit. 

DISCONTINUE.— See  ante.  Appeal  and  Error,  p.  34;  post,  Dismissal,  Dis- 
continuance AND  Nonsuit. 

DISCOUNT.— See  ante.  Banks  and  Banking,  p.  184. 


receive  rebates  in  sessions  in  respect  to 
transportation  of  property  in  interstate  or 
foreign  commerce,  whereby  any  such 
property  shall  by  any  device  whatever  he- 
transported  at  less  than  carriers'  published 
rate  or  discrimination  be  practiced,  to  sus- 
tain a  conviction  a  device  or  contrivance, 
secret  or  fraudulent  in  its  nature,  is  not 
essential.  Armour  Packing  Co.  v.  United 
States,  209  U.  S.  56,  52  L.  Ed.  681,  28  S. 
Ct.  428.  See  post,  INTERSTATE  AND 
FOREIGN   COMMERCE. 

347-5a.  Different  compensation. — The 
Act  of  February  4,  188T,  regulating  com- 
merce declared  it  to  be  an  unjust  and  un- 
lawful discrimination  for  carriers  to 
charge,  demand,  collect  or  receive  from 
any  person  or  persons  "a  greater  or  less 
compensation"  for  any  service  rendered  or 
to  be  rendered  in  the.  transportation  of 
passengers  or  property  than  was  charged, 
demanded,  collected  or  received  from  any 
other  person  or  persons  for  doing  him  or 
them  a  like  and  contemporaneous  service 
in  the  transportation  of  a  like  kind  of 
traffic  under  substantially  similar  circum- 


stances and  conditions.  But  the  Act  of 
June  29,  1906,  made  a  material  addition 
to  the  words  of  the  Act  of  1887;  for,  it 
expressly  prohibited  any  carrier,  unless 
otherwise  provided,  to  demand,  collect  or 
receive,  "a  greater  or  less  or  different 
compensation"  for  the  transportation  of 
persons  or  property,  or  for  any  service 
in  connection  therewith,  than  the  rates, 
fares  and  charges  specified  in  the  tariff 
filed  and  in  effect  at  the  time.  The  words 
"or  different,"  looking  at  the  context,  can- 
not be  regarded  as  superfluous  or  meaning- 
less. The  history  of  the  acts  relating  to 
commerce  shows  that  congress,  when  in- 
troducing into  the  Act  of  1906  the  word 
different,  had  in  mind  the  purpose  of  cur- 
ing a  defect  in  the  law  and  of  suppressing 
evil  practices  under  it  by  prohibiting  the  car- 
rier from  charging  or  receiving  compen- 
sation except  as  indicated  in  its  published 
tariff.  Louisville,  etc.,  R.  Co.  v.  Mott- 
iey,  219  U.  S.  467,  475.  55  L.  Ed.  297,  31 
S.  Ct.  265.  See  ante,  CARRIERS,  p.  216; 
post,  INTERSTATE  AND  FOREIGN 
COMMERCE. 


464 


Vol.  V.  DISHOXOR.  352-353 


DISCOVERY. 

II.  Bill  of  Discovery,  465. 

B.  Jurisdiction  and  Right  to  ^Maintain,  465. 
2.  Right  to  ^Maintain,  465. 
a.  Specific  Instances,  465. 

(2)  In  Aid  of  Executions  at  Law,  465. 

(8)   Prying  into  Nature  of  Adversary's  Case,  465. 

CROSS  REFERENCES. 
See  the  title  Discovery,  vol.  5,  p.  350,  and  references  there  given. 
In  addition,  as  to  production  of  books  and  papers,  see  post.  Productiox  of 
Documents. 

II.  Bill  of  Discovery. 

B.  Jurisdiction  and  Rig-ht  to  Maintain — 2.  Right  to  Maintain — a.  Spe- 
cific Instances — (2  )  In  Aid  of  Executions  at  Laze. — A  court  of  equity  does  not 
lose  its  jurisdiction  to  entertain  a  bill  for  the  discovery  of  evidence  or  to  enjoin 
the  trial  at  law  until  obtained,  because  the  powers  of  the  courts  of  law  have  been 
enlarged  so  as  to  make  the  equitable  remedy  unnecessary  in  some  circumstances. ^^^ 

(8;  Prying  into  Nature  of  Adversary's  Case. — A  bill  of  discovery  can  not  be 
used  merely  for  the  purpose  of  enabling  the  plaintiff  in  such  a  bill  to  pry  into 
the  case  of  his  adversary  to  learn  its  strength  or  weakness. ^'^^ 

DISCRETIONAL  DUTIES.— See  post,  ^Iandamus. 

DISCRIMINATION. — See  post.  Foreign  Corporations;  Interstate  and 
Foreign  Commerce. 

DISCRIMINATION  ON  ACCOUNT  OF  COLOR.— See  ante.  Civil  Rights, 
p.  236 ;  post,  TrRv. 

DISC  SOUND  RECORDS.— See  post.  Patents. 

DISFRANCHISEMENT.— See  ante.  Civil  Rights,  p.  236. 

DISHONOR.— See  ante.  Bills.  Notes  and  Checks,  p.  204. 

352-lla.    Carpenter  r.   Winn,  221   U.   S.  tolerated.      The    principal    is    stated    by   a 

53.3.  539,  55  L.  Ed.  8-12,  31  S.  Ct.  683.  great   authority   upon   equity   thus:      "Nor 

353-17a.     Prying    into   nature    of   adver-  has  a  party  a  right  to  any  discovery  ex- 

sary's    case. — A     discovery     sought    upon  cept  of  fact  and   deeds  and  writings  nec- 

suspicion,    surmise    or    vague    guesses    is  essary   to    his    own    title    under   which    he 

called    a    "fishing    bill,"    and    will    be    dis-  claims;  for  he  is  not  at  liberty  to  pry  into 

missed.     Story,   Eq.  PI.,  §§  320-325.     Such  the    title    of    the    adverse    party."      Story, 

a   bill   must   seek   only   evidence   which    is  Eq.    Juris.,    §    1490.      Carpenter    z\    Winn, 

material   to   the   support   of   the   complain-  221    U.    S.    533.   540,   55    L.    Ed.   842.   31    S. 

ant's   own    case,   and   prying   into   the    na-  Ct.   683. 
ture    of   his   adversary's    case    will    not    be 

12  U  S  Enc— 30  465 


1 


378  DISMISSAL,  DISCONTINUANCE  AND  NONSUIT.       Vol.  V. 


DISMISSAL,  DISCONTINUANCE  AND  NONSUIT. 

II.  Dismissal  and  Nonsuit,  466. 

B.  Involuntary,  466. 
1.  Dismissal,  466. 

a.  When  Proper,  466. 

(5)  Want  of  Turisdiction,  466. 
(b)  Since  Act  of  1875,466. 

bb.  Mode  of  Raising  Objection  and  N^ecessity  There- 
for, 466. 
(ee)  Dismissal  by  Court  of  Its  Own  Motion, 
466. 
ddd.   Parties  Collusively  ]^lade  or  Joined, 
466. 
gg.   Collusive   Incorporation,   466. 
(15)  Failure  to  Revive  after  Death  of  Defendant,  466. 
g.  Dismissal  without  Prejudice,  467. 

(1)  Bill  for  Injunction,  467. 

(2)  Prosecution    for    Embezzlement    without    Prejudice    to 
Civil  Action,  467. 

V.  Nolle  Prosequi,  467. 
B.  Effect,  467. 

CROSS  REFERENCES. 

See  the  title  Dismissal,  Discontinuance  and  Nonsuit,  vol.  5,  p.  356,  and 
references  there  given. 

In  addition,  see  ante,  Appeal  and  Error,  p.  34;  Autrefois,  Acquit  and  Con- 
vict, p.  161;    Courts,  p.  398;   post,  Res  Adjudicata. 

II.  Dismissal  and  Nonsuit. 

B.  Involuntary — 1.  Dismissal — a.  When  Proper — (5)  Want  of  Jurisdic- 
tion—  (b)  Since  Act  of  i8/f, — bb.  Mode  of  Raising  Objection  and  Necessity 
Therefor — (ee)  Dismissal  by  Court  of  Its  Own  Motion — ddd.  Parties  Collu- 
sively Made  or  Joined. — By  §  5  the  Act  of  1875,  where  it  appears  to  the  satis- 
faction of  the  circuit  court  that  the  suit  does  not  really  and  substantially  involve  a 
dispute  or  controversy  properly  within  the  jurisdiction  of  that  court  or  that  the 
parties  to  that  suit  were  improperly  or  collusively  made  or  joined  for  the  purpose 
of  creating  a  case  cognizable  under  that  act,  the  circuit  court  is  directed  to  pro- 
ceed no  further  therein,  but  to  dismiss  the  suit  on  that  ground.  Where  there  is 
no  claim  that  the  averments  in  the  bill  are  untrue,  or  that  the  debts  named  therein 
as  owing  to  the  complainants,  do  not  in  fact  exist,  or  any  question  as  to  the  citi- 
zenship of  the  complainants,  and  no  evidence  of  any  fraud  practiced  for  the  pur- 
pose of  thereby  creating  a  case  to  give  jurisdiction  to  the  federal  court,  the  fact 
that  the  parties  preferred  to  take  the  subject  matter  of  the  litigation  into  the  fed- 
eral courts,  instead  of  proceeding  in  one  of  the  courts  of  the  state,  is  not  wrong- 
ful, and  not  a  ground  of  dismissal.  So  long  as  no  improper  act  was  done  by 
which  the  jurisdiction  of  the  Federal  court  attached,  the  motive  for  bringing  the 
suit  there  is  unimportant.^^^ 

gg.    Collusive  Incorporation. — See  ante.  Courts,  p.  398. 

(15)  Failure  to  Revive  after  Death  of  Defendant. — The  bill  in  a  foreclosure 
suit  is  properly  dismissed  where  the  complainant,  after  his  claim  to  a  final  decree 

378-81a.  Parties  collusively  made  or  ship,  208  U.  S.  90,  52  L.  Ed.  403,  28  S. 
joined.— In   re   Metropolitan   R.   Receiver-       Ct.  219.     See  ante,  COURTS,  p.  398. 

466 


Vol.  V.  DISTRICT  COURT.  385-393 

nunc  pro  tunc   has  been   rightfully  denied,   makes  no  effort  to    revive  the   cause, 
though  the  defendant  has  been  dead  for  some  years.''' 

g.  Dismissal  z^'ithout  Prejudice — (1)  Bill  for  Injunction. — The  dismissal  of  a 
bill  seeking  to  enjoin  enforcement  of  legislative  regulation  of  gas  rates  as  confis- 
catory in  advance  of  any  actual  experience  of  the  practical  result  of  such  rates 
should  be  without  prejudice.--^ 

(2)  Prosecution  for  Embezzlement  without  Prejudice  to  Civil  Action. — See 
post,  Embezzlement. 

V.  Nolle  Prosequi. 

B.  Effect. — Dismissal  without  Prejudice  to  Civil  Suit. — The  dismissal  of 
a  criminal  prosecution  in  the  Philippine  Islands  for  embezzlement,  without  prej- 
udice to  the  right  to  institute  a  civil  action,  is  not  demanded  because  the  restora- 
tion of  the  money  found  to  be  embezzled,  or,  in  lieu  thereof,  the  suft'ering  of  a 
subsidiary  imprisonment  for  a  term  not  exceeding  one-third  of  the  principal  pen- 
alty, will  not  bar  the  creditor  from  a  civil  action  to  recover  any  sum  which  he 
may  prove  to  be  due  in  excess  of  the  sum  wrongfully  converted.^^^ 

Employer's  Liability  Insurance. — See  post.  Master  and  Servant. 

DISSOLUTION. — See  ante.  Banks  and  Banking,  p.  184;  Corpor.ations, 
p.  381 ;  post.  Partnership.  As  to  dissolution  of  injunctions,  see  post,  In- 
junctions. 

DISSOLUTION  OF  TRUSTS.— See  post,  Monopoeies  and  Corporate 
Trusts. 

DISTANCE.— See  ante.  Boundaries,  p.  206. 

DISTILLER'S  BOND.— See  post,  EstoppEe. 

DISTRESS. — See  post.  Landlord  and  Tenant;  Revenue  Laws;  Taxation. 

DISTRIBUTION. — See  ante,  Descent  and  Distribution,  p.  463;  post, 
Trusts  and  Trustees. 

DISTRICT  AND  PROSECUTING  ATTORNEYS.— See  the  title  District 
and  Prosecuting  Attorneys,  vol.  5,  p.  396,  and  references  there  given. 

DISTRICT  COURT.— See  ante.  Admiralty,  p.  10;  Appeal  and  Error,  p. 
34;  Courts,  p.  398;  post.  Venue. 

385-7a.     Failure    to    revive.— Cuebas    Y.  S.  19,  53  L.  Ed.  382,  29  S.  Ct.  192,  revers- 

Arredondo    v.    Cuebas    Y    Arredondo.    223  ing    157    Fed.    849. 

U.  S.  376,  56  L.   Ed.  476.  32   S.   Ct.  277.  393-38a.    Dismissal  of  civil  suit  without 

389-22a.    Dismissal  without  prejudice. — •  prejudice. — Freeman  v.  United  States,  217 

Willcox  v.   Consolidated   Gas.   Co.,  212   U.  U.   S.  539,  54  L.   Ed.  874,  30  S.  Ct.  592. 

467 


407-426  DIVORCE  AND  ALIMONY.  Vol.  V. 


DISTRICT  OF  COLUMBIA. 

CROSS  REFERENCES. 

See  the  title  District  of  Columbia,  vol.  5,  p.  404,  and  references  there  given. 

In  addition,  see  ante,  Appeal  and  Error,  p.  34;  Criminal  Law,  p.  435;  post, 
Limitation  of  Actions  and  Adverse  Possessions;  Police  Power;  Res  Adju- 
dicata;  Sentence  and  Punishment;  Special  Assessments;  Verdict;  Work- 
ing Contracts. 

As  to  the  adoption  of  the  common  law  for  the  District  of  Columbia,  see  ante, 
Common  Law,  p.  345.  As  to  jurisdiction  of  offenses,  see  ante,  Criminal  Law, 
p.  435.  As  to  special  assessments  in  the  District  of  Columbia,  see  post.  Special 
Assessments. 

Power  of  Congress. — See  note  15, 

DIVERSE  CITIZENSHIP.— See  ante.  Appeal  and  Error,  p.  34;  Courts, 
p.  398 ;  post.  Removal  of  Causes. 

DIVESTITURE  OF  JURISDICTION.— See  post,  Removal  of  Causes. 
DIVISION  OF  OPINION.— See  ante,  Appeal  and  Error,  p.  34. 
DIVISION  OF  TERRITORY.— See  post.  International  Law. 


DIVORCE  AND  ALIMONY. 

VI.  Effect  of  Divorce  or  Annulment  of  Marriage,  468. 

D.  Foreign  Divorces  and  Conflict  of  Laws,  468. 
5.  Property  Rights,  468. 
c.  Alimony,  468. 

VII.  Pleading  and  Practice,  468. 

CROSS  REFERENCES. 

See  the  title  Divorce  and  Alimony,  vol.  5,  p.  412,  and  references  there  given. 

VI.  Effect  of  Divorce  or  Annulment  of  Marriage. 

D.  Foreign  Divorces  and  Conflict  of  Laws — 5.  Property  Rights — c.  Ali- 
vioiiy. — Enforcement. — See  note  61. 

VII.  Pleading  and  Practice. 
Condition  of  Opening  Default. — The  discretion  of  the  court,  under  Code 

407-15.  Powers  of  congress. — Columbia  faith  and  credit  clause  of  the  federal  con- 
Heights,  etc.,  Co.  z'.  Rudolph,  217  U.  S.  stitution,  provided  that  no  modification 
547,  54  L.  Ed.  877,  30  S.  Ct.  581.  of  the  decree  was  inade  prior  to  the  ma- 

426-61.     Enforcement. — Decrees    of    the  turity  of  such  installments,  unless  by  the 

New  York  courts  for  the  future  payment  law  of  the  state  in  which  the  decree  was 

of  alimony  are  not   subject   to   annulment  rendered  its  enforcement  is  so  completely 

or    modification    by    those    courts    as    to  within    the    discretion    of    the    courts    of 

over-due   and   unsatisfied   installments,    so  that  state  that  they  may  annul  or  modify 

as  to  deprive   such  decrees  of  the  protec-  the   decree,   even   as   to   over-due   and   un- 

tion,    as    to    past-due    and    unpaid    install-  satisfied   installments.      Sistare   tj.    Sistare, 

ments,   of  the   full  faith   and   credit   clause  218  U.  S.  1,  54  L.  Ed.  905,  30  S.  Ct.  682,  re- 

of    the    federal    constitution.       Sistare    v.  versing    judgment    (1907),    66    A.    772,    80 

Sistare,  218   U.   S.   1,  54   L.   Ed.  905,   30   S.  Conn.  1,  125  A'm.   St.  Rep.  102;   Barber  v. 

Ct.    682.  Barber,  21    How.   582,   16   L.   Ed.   226,   fol- 

A  decree  for  the  future  payment  of  ali-  lowed   in  Lynde  v.  Lynde,   181   U.   S.   183, 

mony  is,  as  to  installments  past  due   and  45   L.   Ed.   810,   distinguished, 
unpaid,  within   the  protection   of  the   full 

468 


Vol.  V.  DOCUMENTARY  BVIDBNCB.  428-437 

Civ.  Proc.  St.  Okl.  1893,  §  3984,  to  permit  a  defaulting  defendant  to  answer 
"upon  such  terms  as  may  be  just,"  is  not  abused  by  making  it  a  condition  of 
granting  such  permission  in  a  suit  for  divorce  that  defendant  comply  with  an  or- 
der theretofore  made,  directing  him  to  pay  temporary  alimony  and  attorney's 
fees,  wh.ich  was  reasonable  in  itself,  and  reasonable  in  relation  to  the  means  and 
obligations  of  defendant  to  plaintiff.*^'^'' 

DOCKET. — See  ante,  Appkal  and  Error,  p.  34;  post,  Judgme;nts  and  De- 
crees. 


DOCUMENTARY  EVIDENCE. 
II.  Rules  Applicable  to  Specific  Documents,  469. 

A.  Official  Public  Documents,  469. 

1.  Admissibility,  469. 

d^.  Condemnation  Proceedings,  469. 

e.  Records  and  Documents  of  the  Executive  Departments  of  the 
United  States  Government,  469. 
(4)  Records  and  Documents  of  the  War  Department,  469. 
1.  Maps,  Plats  and  Surveys,  470. 

2.  Necessity  and  3*1  ode  of  Proving,  470. 

e.  Copy  of  Certificate  of  Enrollment  of  a  Vessel,  470. 
C.  Private  Documents,  470. 

1.  Admissibility,  470. 
a.  Deeds,  470. 

(  1 )   For  What  Purposes  Deeds  Are  Admissible,  470. 
( a )   To  Prove  Ownership  or  Title,  470. 
c.  Written  Contracts  and  Documents  Explanatory  Thereof,  470. 
(4^)  Agreement  Admissible  to  Explain  Untrue  Statements 
Made  by  a  Testator,  470. 

f.  Letters,  470. 

(6)  Letters  of  the  Agent  or  Attorney  of  a  Party,  470. 
o.  Entries  and  Memoranda  of  a  Private  Character,  470. 
(4)  Entries  in  Books  of  Account,  470. 

CROSS  REFERENCES. 
See  the  title  Documentary  Evidence,  vol.  5,  p.  431,  and  references  there  given. 
In  addition,  see   ante,  Affidavits,  p.    16 ;  Best  and   Secondary   Evidence,  p. 
202;  post,  Judgments  and  Decrees;  Judicial  Notice;  Records;  Wills. 

II.  Rules  Applicable  to  Specific  Documents. 

A.  Official  Public  Documents — 1.  Admissibility — d>^.  Condemnation 
Proceedings.- — Condemnation  proceedings  under  which  the  United  States  claims 
title  to  3  military  reservation,  the  scene  of  a  crime,  is  admissible  in  evidence  to 
show  that  the  reservation  was  within  the  exclusive  jurisdiction  of  the  L'nited 
States. "'' 

e.  Records  and  Documents  of  the  Bxeciitive  Departments  of  the  United  States 
Government — (4)  Records  and  Documents  of  the  War  Department. — Book 
Showing  Titles  to  Military  Reservation. — A  book  compiled  under  the  author- 

428-67a.     Condition  of  opening   default.  437-22a.    Admissibility  of  condemnation 

— Bennett    v.    Bennett,    208    U.    S.    505,    53       proceedings. — Holt    v.    United    States,   218 
L.    Ed.    590,    28    S.    Ct.    .356.    .  U.   S.  245,  '54   L.   Ed.   1021,  31  S.   Ct.  2,  af- 

firming  168    Fed.   Rep.   141. 

469 


441-462  DOCUMENTARY  EVIDBNCB.  Vol.  V. 

ity  of  the  war  department  showing  titles  to  a  military  reservation,  the  scene  of  a 
crime,  is  admissible  in  evidence  to  show  that  the  reservation  was  within  the  ex- 
clusive jurisdiction  of  the  United  States.^^^ 

1.  Maps,  Plats  and  Surveys. — See  note  70. 

2.  Necessity  and  Mode  of  Proving— e.  Copy  of  Certificate  of  Enrollment 
of  a  J'esseL— The  genuineness  of  the  authentication  of  a  copy  of  a  certificate  of 
enrollment  offered  in  evidence  to  establish  the  national  character  of  a  vessel  on 
a  prosecution  for  a  crime  committed  on  shipboard  will  be  assumed,  as  will  also 
the  official  character  of  the  purported  signer  and  the  signing  by  him,  or  one  au- 
thorized to  sign  for  him,  where  there  is  no  evidence  casting  suspicion  upon  the 
genuineness  of  the  copy  or  of  the  seal,  or  the  signature,  and  none  which  chal- 
lenges in  any  way  the  American  character  of  the  ship.^^^ 

0.  Private  Documents — 1.  Admissibility — a.  Deeds — (1)  For  What 
Purposes  Deeds  Are  Admissible— id.)  To  Prove  Ozunership  or  Title. — The  deeds 
under  which  the  United  States  claims  title  to  a  military  reservation,  the  scene  of 
a  crime,  are  admissible  in  evidence  to  show  that  such  reservation  was  within  the 
exclusive  jurisdiction  of  the  United  States.^-'' 

c.  Written  Contracts  and  Documents  Explanatory  Thereof — (41/2)  Agree- 
ment Admissible  to  Explain  Untrue  Statements  Made  by  a  Testator. — A  written 
agreement  between  a  testator  and  his  wife,  in  which  the  latter  relinquished  all 
claim  to  her  husband's  property  and  all  right  to  dower  or  alimony,  and  which 
concluded  by  stating  that  it  was  intended  to  restore  to  the  parties  the  same  con- 
tractual and  property  rights  as  they  possessed  before  marriage,  is  admissible  in 
evidence  to  explain  the  testator's  untrue  statements  that  he  was  a  widower  and 
had  been  divorced,  which  had  been  admitted  in  evidence  as  proof  of  his  mental 
unsoundness.'*^^ 

f.  Letters — ^"(6)  Letters  of  the  Agent  or  Attorney  of  a  Party. — Letter  of 
Counsel  of  Accused  in  a  Criminal  Case. — ^A  letter  written  by  counsel  for  the 
accused,  with  the  latter's  consent,  and  by  his  direction,  in  reply  to  a  letter  charg- 
ing him  with  having  abstracted  certain  correspondence  from  the  files  of  a  cor- 
poration, should  be  admitted  in  evidence  in  a  criminal  case  to  explain  the  letter 
of  accusation,  already  admitted  in  evidence  without  objection,  for  the  purpose 
of  showing  a  suppression  or  spoliation  of  evidence.^^^ 

o.  Entries  and  Memoranda  of  a  Private  Character — (4)  Entries  in  Books  of 
Account. — See  note  97. 

441-44a.     Book    showing    titles   to    mili-  1021,  31  S.  Ct.  2,  affirming  168  Fed.  Rep. 

tary  reservation. — Holt  v.   United   States,  141. 

218  U.  S.  245,  .54  L.  Ed.  1021,  31  S.  Ct.  2,  454-44a.  Agreement  admissible  to  ex- 
affirming   168   Fed.   Rep.   141.  plain  untrue  statements  made  by  a  testa- 

444-70!     Official   maps    made   under    au-  tor. — Turner  v.  American,  etc.,  Trust  Co., 

thority   of   war   department.— The   official  213   U.    S.   257,   53   L.    Ed.   788,   29   S.   Ct. 

maps   in   the   engineers   department,   made  420. 

from   original   surveys   under   the  author-  457-65a.    Letter  of  agent  or  attorney  of 

ity   of   the   war   department,   are   admissi-  party. — Crawford    v.    United    States,    212 

ble   in    evidence   to    show    that   a    military  U.  S.  183,  53  L.  Ed.  465,  29  S.  Ct.  260. 

reservation,    the    scene    of    a    crime,    was  462-97.    The  possibility  of  forgery  goes 

within    the    exclusive    jurisdiction    of    the  to  the  weight,  but  not  to  the  competency, 

United  States.     Holt  v.  United  States,  218  of  a  private  account  book  kept  by  one  ac- 

U.    S.    245,    54    L.    Ed.    1021,    31    S.    Ct.    2,  cused  of  conspiring  to  defraud  the  United 

affirming  168   Fed.   Rep.   141.  States,  which   contains  entries   relating  to 

446-86a.    Authentication  of  copy  of  cer-  financial    transactions    between    him    and 

tificate     of     enrollment     of     a     vessel. —  his  alleged  accomplice  in  connection  with 

Wynne   v.   United   States.   217    U.    S.    234,  a  contract  between  a  corporation  and  the 

54  L.   Ed.  748,  30  S.  Ct.  447.  United  States,  where  he  offers  such  book 

449-12a.    Deeds  admissible  to  show  mil-  in   evidence  to  corroborate  his  testimony 

itary     reservation     within     the     exclusive  on  the   issue  whether  he  received  money 

jurisdiction    of    the    United    States. — Holt  back    from    such    alleged    accomplice    for 

V.  United  States,  218  U.  S.  245,  54  L.  Ed.  which  he  did  not  account  to  the  corpora- 

470 


Vol.  V. 


DOING  BUSINESS. 


471 


DOCUMENTS. — As  to  what  is  included  by  the  term  documents  in  the  bank- 
rupt law,  see  ante,  Bankruptcy,  p.  168. 
DOING  BUSINESS.— See  note  1. 


tion,  but  concealed  from  it,  and  testifies 
that  such  book  is  in  the  same  condition 
as  when  he  received  it  back  from  the 
president  of  the  corporation,  with  the 
latter's  check  marks,  indicating  approval 
of  the  items.  Judgment  (1907)  30  App. 
D.  C.  1,  reversed.  Crawford  v.  United 
States,  212  U.  S.  183,  53  L.  Ed.  465,  29 
S.   Ct.  260. 

471-1.  Corporation  tax  act. — Under  the 
corporation  tax  act  the  tax  is  imposed 
upon  doing  business  in  a  corporate  or 
quasi  corporate  capacity;  that  is,  with  the 
facility  or  advantage  of  corporate  orga 
zation.  Flint  f.  Stone  Tracy  Co.,  220  U. 
S.  107,  55  L.  Ed.  389,  31  S.  Ct.  342;  Eliot 
V.  Freeman,  230  U.  S.  178,  55  L.  Ed.  424, 
31  S.  Ct.  360.  See  post,  EXCISE;  REV- 
ENUE LAWS. 

Lease  of  property. — Corporations  organ- 
ized for  the  purpose  of  doing  business, 
and  actually  engaged  in  such  activities  as 
leasing  property,  collecting  rents,  manag- 
ing ofiice  buildings,  making  investments 
of  profits,  or  leasing  ore  lands  and  col- 
lecting royalties,  managing  wharves,  di- 
viding profits,  and  in  some  cases  invest- 
ing the  surplus,  are  engaged  in  business 
within  the  meaning  of  the  Act  of  August 
5,  1909,  §  38,  imposing  an  excise  upon  the 
doing  or  carrying  of  business  in  a  corpo- 
rate or  quasi  corporate  capacity,  and  in 
the  capacity  necessary  to  make  such  or- 
ganization subject  to  the  law.  Flint  v. 
Stone  Tracy  Co.,  220  U.  S.  107,  55  L. 
Ed.   389,   31    S.    Ct.    342. 

A  corporation  owning  and  leasing  taxi- 
cabs  and  collecting  rents  therefrom  is  en- 
gaged in  business  within  the  meaning  of 
the  Act  of  August  5,  1909,  §  38,  imposing 
an  exercise  upon  the  doing  or  carrying  on 
of  business  in  a  corporate  or  quasi  cor- 
porate capacity.  Flint  v.  Stone  Tracy  Co., 
220  U.   S.  107,  55  L.   Ed.  389,  31   S.   Ct.  342. 

Control  and  use  of  property  without 
derivation  of  benefits. — Real  estate  trusts 
created  by  deed  for  the  purchasing,  im- 
proving, holding,  or  selling  lands  and 
buildings  for  the  benefit  of  the  sharehold- 
ers, which  do  not  derive  any  benefit  from, 
and  are  not  organized  under,  any  statute 
of  the  state,  and  which,  by  their  terms, 
end  with  lives  in  being  and  twenty  years 
thereafter,  are  not  subject  to  the  excise 
imposed  by  the  act  of  August  5,  1909  (36 
Stat,  at  L.  11,  112-117,  chap.  6,  U.  S. 
Comp.  Stat.  Supp.  1909,  pp.  659,  844-849) 
§  38,  upon  the  doing  of  business  by  cor- 
porations, joint  stock  companies,  or  as- 
sociations "now  or  hereafter  organized 
under  the  laws  of  the  United  States  or  of 
any  state  or  territory."  Eliot  z'.  Freeman, 
220  U.   S.  178,  55   L.   Ed.  424.  31   S.   Ct.  360. 


A  corporation  organized  for  the  pur- 
pose of  owning  and  renting  an  office  build- 
ing, but  which  has  wholly  parted  with  the 
control  and  management  of  the  property, 
and  by  the  terms  of  a  reorganization  has 
disqualified  itself  from  any  activity  in  re- 
spect to  it,  its  sole  authorijtj  being  to  hold 
the  title  subject  to  a  lease  for  130  years, 
and  to  receive  and  distribute  the  rentals 
which  may  accrue  under  the  terms  of  the 
lease,  or  the  proceeds  of  any  sale  of  the 
land,  if  it  shall  be  sold,  is  not  doing  busi- 
ness within  the  meaning  of  the  Act  of 
August  5,  1909  (36  Stat,  at  L.  11,  112-117, 
chap.  6,  U.  S.  Comp.  Stat.  Supp.  1909,  pp. 
659,  844-849),_  §  38,  imposing  an  excise 
upon  the  doing  or  the  carrying  on  of 
business  in  a  corporate  or  quasi  corporate 
capacity.  Zonne  v.  Minneapolis  Syndi- 
cate, 220  U.  S.  187,  55  L.  Ed.  428,  31  S. 
Ct.    361. 

Solicitation  of  students  for  a  corre- 
spondence school. — A  foreign  corporation 
conducting  a  correspondence  school 
whose  business  involves  the  solicitation 
of  students  in  Kansas  by  local  agents, 
who  are  also  to  collect  and  forward  to 
the  home  ofiice  the  tuition  fees,  and  the 
systematic  intercourse  by  correspondence 
between  the  company  and  its  scholars  and 
agents,  wherever  situated,  and  the  trans- 
portation of  the  needful  books,  apparatus, 
and  papers,  is  doing  business  within  the 
state,  within  the  meaning  of  Kan.  Gen. 
Stat.  1901,  §  1283,  which  prohibits  the 
maintaining  of  an  action  in  the  Kansas 
courts  by  any  corporation  doing  business 
in  the  state  which  has  not  filed  with  the 
secretary  of  state  the  statement  of  its 
condition,  provided  for  by  that  section. 
Its  transactions  in  Kansas,  by  means  of 
which  it  secured  applications  for  numerous 
persons  for  scholarships  were  not  single 
or  casual  transactions,  such  as  might  be 
deemed  incidental  to  its  general  business 
as  a  foreign  corporation,  but  were  parts  of 
Its  regular  business  continuously  con- 
ducted in  many  states,  for  the  benefit  of 
its  correspondence  schools.  International 
Textbook  Co.  v.  Pigg,  217  U.  S.  91,  54  L. 
Ed.  678,  30  S.  Ct.  481. 

Oil  stored  for  distribution. — Where  oil 
was  not  in  movement  through  a  state, 
hut  had  reached  the  destination  of  its 
first  shipment,  and  was  held  there,  not  in 
necessary  delay  or  accommodation  to  the 
means  of  transportation,  but  for  the  busi- 
ness purposes  and  profit  of  the  company, 
and  for  the  purpose  of  distribution,  to 
fulfill  orders  already  received;  required 
storage  there,  the  maintenance  of  the 
means  of  storage,  of  putting  it  in  and 
taking  it  from  storage;  the  company  was 
doing  business  in   the   state.    General    Oil 


471 


487-494 


DRAINS  AND  SBIVERS. 


Vol.  V. 


DOMESTIC  RELATIONS. — See  post,  Husband  and  Wife;  Master  and 
Servant;  Parent  and  Child. 

DOMICILE. — See  the  title  Domicile,  vol.  5,  p.  473,  and  references  there 
given.  In  addition,  see  Courts,  ante,  p.  39'8;  post,  Foreign  Judgments,  Rec- 
ords AND  Judicial  Proceedings.  As  to  domicile  of  a  ship,  see  post,  Ships  and 
Shipping. 

DOMINION. — See  post.  International  Law. 

DOUBLE  INSURANCE.— See  note  1. 

DOUBLE  TAXATION.— See  post,  Taxation. 

DOWER. — See  the  title  DowER,  vol.  5,  p.  487,  and  references  there  given. 

DRAFT. — See  ante.  Bills,  Notes  and  Checks,  p.  204. 

DRAINAGE. — See  post.  Drains  and  SewERS.  As  to  reclamation  of  swamp 
and  overflowed  lands,  see  post,  Public  Lands. 


DRAINS  AND  SEWERS. 

CROSS  REFERENCES. 

See  the  title  Drains  and  Sewers,  vol.  5,  p.  492,  and  references  there  given. 
As  to  special  assessments  for  the  construction  of  drains  and  sewers,  see  post, 
Special  Assessments. 

Constitutionality  of  Statutes. — A  statute  providing  for  the  construction  of 
drains  is  not  rendered  unconstitutional  because  the  method  provided  for  enforc- 
ing the  statute  against  nonresidents  is  different  from  that  against  residents.'*^ 


Co.  V.  Grain,  209  U.  S.  211,  230,  52  L. 
Ed.  754,  28   S.   Ct.  475. 

Matters  concerning  insurance. — The 
receipt  by  a  foreign  insurance  company 
at  its  home  office  of  premiums  upon  poh- 
cies  theretofore  issued,  together  with  four 
isolated  acts  extending  over  a  period  of 
three  years,  consisting  in  rewriting  an 
existing  policy,  sending  a  check  in  pay- 
ment of  a  policy,  to  be  delivered  upon  re- 
ceipt of  certain  unpaid  assessments,  and 
two  adjustments  within  the  state  of 
claims  which  have  accrued,  do  not  con- 
stitute doing  business  within  the  state 
after  the  company's  asserted  withdrav^'al 
therefrom  in  good  faith,  so  as  to  preclude 
it  from  revoking  its  designation  of  the 
state  insurance  commissioner  as  its  agent 
to  receive  service  of  process.  Hunter  v. 
Mutual,  etc.,  Ins.  Co.,  218  U.  S.  573,  54  L. 
Ed.  1155,  31  S.  Ct.  127.  See  post,  FOR- 
EIGN CORPORATIONS. 

487-1.  Double  insurance  is  insurance 
of  the  same  interest.  Allemannia  Fire 
Ins.  Go.  V.  Firemen's  Ins.  Co.,  209  U.  S. 
326,  52  L.  Ed.  815,  28  S.  Ct.  544.  See 
post,  INSURANCE. 

494-4a.  C'onstitutionality  of  statute. — • 
District  of  Columbia  v.  Brooke,  214  U. 
S.  138,  53  L.  Ed.  941,  29  S.  Ct.  560.  See, 
generally,  ante,  CONSTITUTIONAL 
LAW,  p.  264. 

The  Act  of  May  19,  1896,  c.  206,  29 
Stat.  125,  providing  for  the  drainage  of 
the  District  of  Columbia  is  a  constitu- 
tional and  valid  enactment.  The  provi- 
sions of  this  act  do  not  deprive   nonresi- 


dent owners  of  their  property  without 
due  process  of  law  or  deny  them  the 
equal  protection  of  the  law  because  one 
method  is  provided  for  enforcing  the  pro- 
vision of  this  act  against  resident  own- 
ers and  another  method  against  nonresi- 
dent owners.  District  of  Columbia  v. 
Brooke.  214  U.  S.  138,  53  L.  Ed.  941,  29 
S.    Ct.    560. 

The  distinction  between  resident  and 
nonresident  owners  of  abutting  property 
in  the  Act  of  May  19,  1896,  creating  a 
drainage  system  for  the  District  of  Co- 
lumbia in  that  the  coercion  of  the  law  as 
to  making  connections  with  a  sewer  is 
by  criminal  punishment  in  the  case  of 
residents,  whereas,  against  nonresident 
owners,  the  District  does  the  work  in 
case  of  their  neglect,  and  assesses  the 
cost  against  the  property  as  a  tax,  does 
not  invalidate  the  statute  for  discrimina- 
tion, even  assuming  that  congress  is  for- 
bidden to  enact  discriminating  legisla- 
tion. District  of  Columbia  v.  Brooke, 
214  U.  S.  138,  53  L.  Ed.  941,  29  S.  Ct.  560. 

The  statute  under  consideration  in  the 
case  at  bar  enjoins  a  duty  on  both  resi- 
dent and  nonresident  lot  owners,  a  duty 
necessary  to  be  followed  to  preserve  the 
health  of  the  city.  There  is  a  difference 
only  in  the  manner  of  enforcing  it,  a 
difference  arising  from  the  different  sit- 
uation of  the  lot  owners,  and  therefore 
competent  for  congress  to  regard  in  its 
legislation.  In  other  words,  under  the 
circumstances  presented  by  this  record, 
the     distinction     between     residents     and 


472 


\'ol.  V. 


DRAIXS  AXD  SHIVERS. 


494 


Power  of  Congress  to  Create  Drainage  System  for  District  of  Colum- 
bia.— Congress  has  the  right  to  pass  laws  creating  a  drainage  system  for  the 
District  of  Columbia  and  this  right  can  not  be  controverted  by  a  private  individual 
owning  property  in  a  district. *^^  A  property  owner  in  the  District  of  Columbia 
can  not  set  up.  as  a  reason  why  he  should  be  exempted  from  the  provisions  of  a 
genera]  law  for  the  drainage  of  the  district,  the  fact  that  he  has  constructed  a 
drainage  system  of  his  own  which  is  of  equal  or  superior  efficiency  to  that  pro- 
vided by  the  general  law."'" 

Operation  of  Law. — It  is  no  objection  to  a  general  drainage  law  that  it  op- 
erates equally  on  owners  of  occupied  and  unoccupied  dwellings. ^"^  It  has  been 
held  under  a  statute  of  the  District  of  Columbia  that  a  railroad  company  was  re- 
quired to  pay  for  the  changes  in  sewers  both  inside  and  outside  the  railroad's 
right  of  way,  made  necessary  by  the  elimination  of  grade  crossings.-'*'* 


nonresidents  is  a  proper  basis  for  class- 
ification. It  might  not  be  under  other 
circumstances.  District  of  Columbia  r. 
Brooke,  214  U.  S.  138,  53  L.  Ed.  941,  29 
S.  Ct.  560,  citing  Blake  v.  McCIung,  172 
U.  S.  239,  43  L.  Ed.  432,  19  S.  Ct.  165; 
S.  C,  176  U.  S.  59,  44  L.  Ed.  371,  20  S. 
Ct.  307;  Sully  v.  American  Nat.  Bank, 
178  U.  S.  289,  44  L.  Ed.  1072,  20  S.  Ct. 
935. 

494-5a.  Power  of  congress  to  create. 
— District  of  Columbia  :■•  Brooke,  214  U. 
S.    138,    53    L.    Ed.    941,   29    S.    Ct.    560. 

494-5b.  Reason  for  exemption  of  prop- 
erty owner. — District  of  Columbia  v. 
Brooke,  214  U.  S.  138,  53  L.  Ed.  941,  29 
S.    Ct.    560. 

"The  second  contention  of  defendant 
in  error  is  that  the  record  fails  to  dis- 
close that  any  nuisance  existed  on  her 
property,  or  that  the  means  of  drainage 
already  there  was  unsanitarj^  or  insuffi- 
cient, or  that  any  necessity  existed  for 
making  the  connection.  This  contention 
seems  to  be  made  in  this  court  for  the 
first  time.  It  certainly  received  no  no- 
tice from  the  court  of  appeals,  and  the 
fact  that  it  assumes  that  there  was  means 
of  drainage  on  defendant  in  error's  lot 
is  not  alleged  in  her  petition.  But  sup- 
pose the  fact  had  been  alleged,  a  property 
owner  can  not  urge  against  the  drainage 
system  of  the  district  that  he  had  adopted 
a  system  of  his  own  and  challenge  a  com- 
parison with  that  of  the  district,  and  obey 
or  disobey  the  law  according  to  the  result 
of  the  comparison.  The  contention  vir- 
tually denies  any  power  in  congress  to 
create  a  system  of  drainage  to  which  a 
lot  owner  must  conform."  District  of 
Columbia  v.  Brooke,  214  U.  S.  138,  148, 
53    L.    Ed.   941,   29    S.   Ct.   560. 

494-5C.  Operation  of  law. — District  of 
Columbia  v.  Brooke,  214  U.  S.  138,  53  L. 
Ed.  941,  29  S.  Ct.  560.  See,  also,  ante, 
COXSTITUTIOXAL  LAW,  p.  264. 

The  fact  that  dwelling  houses  unoccu- 
pied is  no  reason  why  they  should  not  be 
properly  drained  and  an  owner  can  not 
allege  that  he  is  deprived  of  his  property 
without  due  process  of  law,  because  of  a 


statute  which  compels  the  construction 
of  a  general  sewerage  system,  merely  be- 
cause his  house  is  unoccupied  at  the  time 
the  sewerage  is  constructed.  District  of 
Columbia  v.  Brooke,  214  U.  S.  138,  53  L. 
Ed.   941,  29   S.   Ct.   560. 

"At  best,  defendant  in  error  can  only 
be  heard  against  'the  evidential  effect  of 
the  mere  existence  of  an  improvement,' 
because  her  property  does  not  come 
within  the  category  of  unimproved  prop- 
erty. Her  improvements  are  dwelling 
houses,  and  their  mere  existence  indicated 
the  necessity  for  drainage.  That  they 
may  sometimes  be  vacant  is  unimportant. 
What  rights  owners  of  lots  differently 
improved' or  owners  of  unimproved  prop- 
erty may  have  is  of  no  concern  of  de- 
fendant in  error.  Her  contention,  there- 
fore, that  the  act  deprives  her  of  due 
process  of  law  is  unsound."  District  of 
Columbia  v.  Brooke,  214  U.  S.  138,  149, 
53    L.    Ed.   941,   29   S.   Ct.   560. 

An  abutting  owner  of  property  on 
which  dwellings  have  been  erected  can 
not  challenge  the  validity  of  a  provision 
in  the  Act  of  May  9,  1896  (29  Stat,  at  L. 
125,  p.  206),  creating  a  drainage  system 
in  the  District  of  Columbia,  which  af- 
fects only  owners  of  unimproved  prop- 
erty. District  of  Columbia  v.  Brooke, 
214  U.   S.  138,  53  L.   Ed.  941,  29  S.  Ct.  560. 

Due  process  of  law  is  not  denied  an 
abutting  owner  of  property  on  which 
dwellings  have  been  erected  by  the  at- 
tempt, in  the  Act  of  May  19,  1896,  creat- 
ing a  drainage  system  in  the  District  of 
Columbia,  under  which  she  is  assessed 
for  the  expense  of  connecting  her  prop- 
erty with  a  sewer,  to  give  a  controlling 
evidential  effect  to  the  existence  of  such 
improvements  as  dwellings,  as  indicating 
the  necessity  for  making  such  connection. 
District  of  Columbia  v.  Brooke,  214  U.  S. 
138,   53   L.    Ed.   941,   29   S.   Ct.   560. 

494-5d.  Liability  of  railroad  for  change 
in  sewers. — New  York,  etc.,  Co.  v.  Dis- 
trict of  Columbia,  223  U.  S.  253,  56  L. 
Ed.  426,  32  S.  Ct.  300. 

The  cost  of  changing  sewers  both  in- 
side   and    outside    of    a    railroad    right    of 


473 


495-498 


DUB  DILIGENCE. 


Vol.  V. 


DRAMATIZATION.— See  note  a. 
DRAWBACK.— See  post,  Revenue  Laws. 
DRAWBRIDGE.— See  ante,  Admiralty,  p.  10. 
DRAWER. — See  ante,  Bills,  Notes  and  Checks,  p.  204. 
DRUGS.— See  note  b. 

DRUMMERS. — See  post,  Due  Process  of  Law. 

DRUNKENNESS. — See  the  title    Drunkenness,    vol.  5,  p.  496,  and  refer- 
ences there  given. 

DRY  DOCK.— See  note  1. 

DUE  DILIGENCE.— See  post.  Negligence. 


way,  made  necessary  by  the  elimination 
of  grade  crossings,  pursuant  to  the  Act 
of  February  10,  1901  (31  Stat,  at  L.  767, 
chap.  353),  and  February  28,  1903  (32 
Stat,  at  L.  909,  chap.  856),  is  chargeable 
to  the  railway's  contractor,  under  an 
agreement  between  such  contractor  and 
the  District  of  Columbia,  by  which  the 
district  was  to  make  the  necessary 
changes  in  sewers  and  water  mains  upon 
deposit  by  the  contractor  of  the  esti- 
mated cost,  where  such  estimate  was 
more  than  50  per  cent  in  excess  of  what 
the  changes  within  the  right  of  way 
would  cost,  and  where  a  different  con- 
clusion could  only  be  reached  upon  the 
supposition  that  the  earlier  act  controlled 
and  was  thought  by  the  district  to  con- 
trol, while  in  fact  the  district  thought 
that  the  later  act  controlled,  and  required 
all  the  changes  to  be  made  at  the  ex- 
pense of  the  railway  company,  and  there- 
fore of  the  contractor,  its  agent.  New 
York,  etc.,  Co.  v.  District  of  Columbia, 
223  U.  S.  253,  56  L.  Ed.  426,  32  S.  Ct.  300. 
495-a.  Dramatization.  —  Moving  pic- 
tures portraying  portions  of  an  author's 
book  was  a  dramatization  of  it.  Drama 
may  be  achieved  by  action  as  well  as  by 
speech.  Action  can  tell  a  story,  display 
all  the  most  vivid  relations  between  men, 
and  depict  every  kind  of  human  emotion, 
without  the  aid  of  the  word.  It  would 
be  impossible  to  deny  the  title  of  drama 
to  pantomime  as  played  by  masters  of  the 


art.  Kalem  Co.  v.  Harper  Bros.,  222  U. 
S.  55,  61,  56  L.  Ed.  92,  32  S.  Ct.  20.  See 
ante,  COPYRIGHT,  p.  377. 

495-b.  Misleading  statements  as  to 
drugs. — By  §§  6  and  8  of  the  Food  and 
Drugs  act  of  June  30,  1906,  providing 
that  the  term  "misbranded"  "shall  apply 
to  all  drugs  or  articles  of  food,  *  *  * 
the  package  or  label  of  which  shall  bear 
any  statement,  design,  or  device  regard- 
ing such  article,  or  the  ingredients  or 
substances  contained  therein,  which  shall 
be  false  or  misleading  in  any  particular," 
an  argument  is  unfounded  that  contends 
that  the  words  "statement  which  shall 
be  misleading  in  any  particular,"  as  used 
in  the  statute,  do  not  apply  to  drugs  at 
all,  that  the  statements  referred  to  are 
those  "regardmg  such  article,"  and  that 
"article"  means  articles  of  food,  mentioned 
by  the  side  of  drugs  at  the  beginning  of 
the  section.  United  States  v.  Johnson, 
221  U.  S.  488,  55  L.  Ed.  823,  31  S.  Ct.  627. 
See  post,  POLICE  POWER.  See,  also, 
post,  MISBRANDED. 

498-1.  Difference  between  dry  dock  and 
an  ordinary  dock. — A  dry  dock  differs 
from  an  ordinary  dock  only  in  the  fact 
that  it  is  smaller,  and  provided  with  ma- 
chinery for  pumping  out  water  in  order 
that  a  vessel  may  be  repaired.  The 
Steamship  Tefiferson,  215  U.  S.  130,  54  L. 
Ed.  125,  30  S.  Ct.  54,  quoting  The  Robert 
W.  Parsons.  191  U.  S.  17,  48  L.  Ed.  73. 
See  post,  SALVAGE. 


474 


Vol.  V.  DUE  PROCESS  OF  LAW. 


DUE  PROCESS  OF  LAW. 

I.   Origin  and  History  of  the  Constitutional  Amendments,  480. 

II.  Definition  and  General  Principles,  480. 

A.  Xo  Precise  Definition,  480. 
'  B.  Equivalent  to  Law  of  the  Land,  480. 

C.  Law  of  the  Land;  Definition  and  Principles,  480. 

1.  Generally;  Prescribed  by  Acts  of  Congress  and  by  the  States,  480. 

2.  Neither  Congress  nor  the  States  ]\Iake  Anything  Due  Process  They 

May  Choose  to  Declare  Such,  480. 

3.  By  \Vhat  Principles  Determined,  480. 

4.  Requires  Conformity  to  Fundamental  Princi[jles,  481. 

a.  Generally,  481. 

b.  Notice  and  Opportunity  for  Hearing,  481. 

d.    Forbids    Arbitrary,    Hostile    or    Discriminating    Exercise    of 
Power,  481. 

5.  Regards  Substance  and  Not  Form,  481. 

6.  ^lere  Possibility  of  Evil  or  Hardship  in  Particular  Instances  Not 

Sufficient  to  Invalidate  Law,  481. 

III.  Persons  Protected,  482. 

A.  Aliens,  482. 

D.  Natural  and  Artificial  Persons,  482. 

1.  Private  Corporations,  482. 

E.  Persons  in  Naval  or  ISIilitarv  Service,  482. 

F.  Indians,  482. 

IV.  Persons  Entitled  to  Raise  Constitutional  Objections,  482. 

A.   General  Rule ;  Complainant  Must  Come  within  Class  Whose  Rights 
Are  Infringed,  482. 

V.  Rules  of  Construction,  483. 

F,  Construed  in  Light  of  Practical  Aftairs;  Local  Conditions,  Habits,  Cus- 
toms and  Traditions  of  Particular  Communities,  483. 

VI.  Of  the  General  Operation  and  Effect  of  the  Constitutional  Guaran- 
ties, 484. 
A.  As  Restrictions  upon  State  and  Federal  Power,  484. 

2.  The  Fifth  Amendment  a  Restriction  upon  the  Federal  Government ; 

the  Fourteenth  a  Restriction  upon  the  States,  484. 

3.  Efl:'ect    of    Fourteenth   Amendment    as    Forbidding   the    States    to 

Abridge  the  Rights  Secured  by  the  First  Ten  Amendments,  484. 

4.  The  Fifth  xA.mendment  as  a  Restriction  upon  the  Express  Powers  of 

Congress,  484. 
4^.  Operation  of  Due  Process   Clause  as   Forbidding  Congress  to 
Deny  the  Equal  Protection  of  the  Laws,  484. 

7.  No  Radical  Change  in  Theory  of  Government;  a  Restriction  upon 

State  Action  Only,  485. 

8.  As  to  the  Reserved  Powers  of  the  States,  485. 

a.  As  to  the  Right  of  the  State  to  Adopt  Its  Own  System  of  Laws 
and  Change  the  Same  at  Pleasure,  485. 

(1)  Generally,  485. 

(2)  Limitations  upon  Power  of  State  to  Adopt  Its  Own 
Laws  and  to  Change  Same  at  Pleasure,  486. 

475 


DUB  PROCESS  OF  LAW.  Vol.  V. 

(bj    As  to  Wisdom,  Justice  or   Policy  of   Legislation; 
Legislative  Motives,  486. 

(c)   Fundamental  Rights  and  Principles  Not  to  Be  Ig- 
nored,  nor   Specific   and   Applicable   Provisions   of 
the  Constitution,  486. 
b.  Separation  of  Departments ;  Delegation  of  Powers,  486. 

d.  Qualifications,  Powers,  Tenure  and  Removal  of  State  Officers, 
~486. 

e.  As  to  Power  of  State  to  Define  and  Punish  Crime,  487. 

f.  As  to  What  Shall  Constitute  an  Actionable  Wrong;  Damages 

Recoverable,  487. 

g.  As  a  Limitation  upon  the  Police  Power,  488. 

9.  Legislative  Power  Limited  to  Persons  and  Property  within  the  Ter- 
ritorial Jurisdiction  of  the   State,  488. 

B.  As  to  Acts  Illegal  under  State  Law ;  as  Requiring  Proceedings  to  Com- 

ply with  State  Laws,  489. 
4.  Decision  of  State  Court  Conclusive  as  to  Whether  Act  or  Proceed- 
ing Was  in  Conformity  to  State  Law  and  Practice,  489. 
6.   Scope  of  Review  by  Federal  Supreme  Court,  489. 

b.  Decision  of  State  Court  as  to  Proper  Construction  of   State 
Law  Not  Reviewable,  489. 

C.  Liberty  and  the  Deprivation  Thereof,  491. 

L  Definition  and  General  Xature  of  Liberty,  49L 

2.  Liberty  Subject  to  Reasonable  Restraints,  491. 

a.  Generally,  under  the  Police  Power,  49L 

b.  Regulation  of  Business,  Trade,  Occupation  or  Profession,  492. 

c.  Limitations  of  the  Liberty  of  Contract,  492. 

(T)   Generally.  492. 

3.  What  Constitutes  a  Deprivation  of  Liberty,  494. 

i.  Power  to  Prescribe  Qualifications  for  Persons  Desiring  to  Prac- 
tice Law,  Medicine,  etc.,  494. 
m.  Prohibiting    Discharge    of    Employees    Because    ^Members    of 
Labor  Organizations,  494. 

n.  Separation  of  the  Races  in  Schools,  Passenger  Trains,  Coaches, 
etc.,  494. 

D.  Property  and  the  Deprivation  Thereof,  495. 

L  What  Is  Property  within  the  ^Meaning  of  the  Due  Process  Clause, 
495. 

b.  Property  and  the  Incidents  of  Ownership-  as  Aft'ected  by  State 

Law  and  Usage,  495. 

c.  Property  Devoted  to  Public  Use,  495. 

e.  Citizenship  as  a  Property  or  \'ested  Right,  495. 

f.  Property  in  Rule  or  Policv  of  Law,  495. 

g.  Property  Right  in  Public  Office,  495. 

i.  Interest  or  Estate  in  Profession  or  Occupation,  495. 

j.   Right  to  Devise,   Bequeath  or   Inherit   Property;   Inheritance 

Taxes,  495. 
k.  Property  Rights  Jure  Maritii,  496. 
1.  Contract  Rights,  496. 
n.  Rights  under  Corporate  Charters,  496. 
o.  Franchises  as  Property,  497. 
p.  The  Term  Property  as  Applied  to  Lands,  497. 

(4)  Rights  of  Riparian  Owners,  497. 

(5)  Subterranean  Waters,  497. 

(6)  Natural  Gas  and  Oil,  497. 

47G 


Vol.  V.  .  DUE  PROCESS  OF  LAW. 

(8)  Remainders,    Reversions,    Executory   Limitations,    etc., 
497. 

(9)  Easements.  Right  of  Way,  etc..  497. 

(10)  Indian  Lands.  497. 

s.  Property  and  Tribal  Rights  of  Indians,  497. 
t.  Property  in  Photograph,  499. 
VI.  Property  in  Money,  Coin,  Currency,  etc.,  499. 
2.  Deprivation  of  Property,  499. 

a.  General  Rules  and  Principles,  499. 

(5)    A  Question  of  Degree;  Delusive  Exactness   Not   Re- 
quired, 499. 

b.  Taking  or  Damaging  Private  Property,  499. 

(2)  Due  Process  Requires  that  Compensation  Be  Made  for 

Property  Taken,  499. 

(a)  Generally,  499. 

(c)  Where  Property  Held  Subject  to  Easement,  Serv- 
itude or  Reserved  Right  in  Favor  of  State,  499. 

(f)    As  to  Amount  and   Measure;   Elements   of   Dam- 
age, etc.,  500. 

(3)  A  Distinction  between  Damaging  and  Taking,  500. 

(4)  What  Constitutes  a  Taking  of  Property,  500. 
(  a  )  Generally,  500. 

( b )  In  the  Exercise  of  the  Police  Power,  500. 
(aa)  Generally,.  500. 

(bb)    Regulation    of    the    L'se    and    Enjoyment    of 

Property,  500. 
( ee )  Summary  Destruction  of  Property  Kept,  Sold 

or  L'sed  in  Molation  of  Law,  501. 
(ff)  Regulation  or  Suppression  of  Business,  Trade, 

Occupation,  etc.,  501. 
(ff^  )  Requiring  Public  Service  Companies  to  Per- 
form Duties  at  a  Pecuniary  Loss.  501. 
(gg)   Regulation  of  Rates,  503. 
(ii)    Requiring  Public   Service  Companies  to  Bear 
Expense    Incident   to   Abolition    of  Crossings, 
Removal  or  Construction  of  Tracks.   Bridges, 
Pipes,  Paving  of  Right  of  Way,  etc..  503. 
( mm  )   Separate  Coach  Laws,  504. 
( nn  )    Limitations  upon  Police  Power,  504. 
(b^  )   In  the  Exercise  of  the  Power  to  Regulate  Com- 
merce, 504. 
(c  )   In  the  Exercise  of  the  Taxing  Power,  505. 

(d)  Laws  Respecting  Rights  of  Action  and  Defenses, 
505. 

(e)  \'ested  Rights  under  Judgments  and  Decrees,  505. 

(f)  Changing  Remedies  and  Procedure.  505. 

(dd)    Retrospective   Statutes  of   Limitation,   505. 
(aaa)   Limiting  Period  in  Which  Action  May 
Be   Brought,   505. 
(h)  Interference  with  Contract  and  Lien  Rights.  505. 
(q)    Rights  of  Riparian  Owners,   506. 

(bb)   Property  Rights  of  Riparian  Owners  as  De- 
termined by   State  Law,  506. 
(cc)  Property  Rights  of  Riparian  Owners  as  Sub- 


DUB  PROCESS  OF  LAW.  Vol.  V. 

servient  to  Right  of  Government  to  Improve 

Navigability  of  Stream,  506. 
(ee)   Diversion  of  Waters,  507. 
(ff)  Flooding  of  Lands,  508. 
(hh)  Destruction  of  Access  to  Navigable  Channel, 

Injury  to  Wharves,  etc.,  509. 
(ii)  Injury  or  Destruction  of  Bridges,  Tunnels,  etc., 

509. 
(5)  Purpose  for  Which  Property  May  Be  Taken,  509. 

(a)  Public  Purpose  Only,  509. 

(b)  What  Constitutes  a  Taking  for  a  Public  Purpose, 

509. 
(aa)    Determination   of   Character  of   Use;   Func- 
tions of  Court  and  Legislature,  509. 
(bb)   As  Affected  by  Local  Conditions;  Power  of 

State  to  Declare  Purpose  Public,  510. 
(11)   Railroads,  510. 

(zz^)    Banks  and  Banking;  Creation  of  Deposit- 
or's Guaranty  Fund,  510. 
E.  Due  Process  in  Judicial  and  Administrative  Proceedings,  51 L 

1.  General  Rules  and  Principles,  511. 

a.  Each  State  Prescribes  Its  Own  Procedure,  511. 

b.  Requirement  Satisfied  by  the  Regular  Administration  of  Law 

through  the  Courts  of  Justice,  511. 

(1)  Generally,  511. 

(2)  QuaHfication  of  Rule;  Regard  to  Be  Had  to  Substance 
and  Not  to  Form,  512. 

(3)  Same;  Mere  Error  Not  a  Denial  of  Due  Process,  512. 

c.  Established  Methods   Not  Overturned ;   Process   Sufficient  if 

Sanctioned  by  Common-Law   Usage,   513. 

d.  States  Not  Restricted  to  Common-Law  Methods ;  Due  Proc- 

ess Not  Determined  by  Matter  of  Age,  513. 

e.  But    State    Can    Not    Make   Anything  Due    Process  It    May 

Choose  to  Declare  Such,  513. 
e^.  Due  Process  Dependent  upon  Circumstances,  513. 

f.  Limitations  upon  Legislative  Powers  with  Respect  to  Remedies 

and  Forms  of  Procedure,  513. 

(1)  Generally;  Requirement  Satisfied  by  Regular  Course  of 
Proceedings  before  a  Competent  Tribunal,  513. 

(2)  Judicial  Proceeding  Not  Always  Required,  513. 

(3)  Legislative  Judgments  and  Decrees,  514. 

2.  As  Guaranteeing  Equal  and  Impartial  Justice  to  All  Persons,  514. 

b.  Requires  an  Impartial  Tribunal,  514. 

c.  Forbids  Arbitrary  Laws  and  Proceedings,   515. 
e.  Preferring  Resident  Creditors,  515. 

3.  Notice,  Hearing,  Jurisdiction  as  Essential  to  Due  Process  of  Law, 

515. 

a.  General  Rule  as  to  Jurisdiction,    Notice  and  Opportunity  for 

Hearing,  515. 

b.  Qualification  of  Rule ;  Notice  and  Hearing  Not  Required  un- 

less Necessary  for  the  Protection  of  the  Parties,  516. 
(3)   As  to  Statute  or  C)rdinance  Fixing  Rates   for  Use  of 

Public  Utilities,  516. 
(5)   Necessity  for  Notice  in  Tax  Proceedings,  517. 

d.  The  Right    to  Notice    Implies  the    Right  to  Appear    and  Be 

Heard,  517. 

478 


Vol.  V.  DUB  PROCESS  OP  LAW. 

e.  Persons  Entitled  to  Notice  and  Hearing,  518. 
i.  Sufficiency  of  Notice  and  Hearing,  518. 

(1)  Generally  as  to  Notice,  518. 

(2)  Determined  by  Substance,  Not  by  Form,  518. 

(3)  May  Be  Actual  or  Constructive,   518. 

1.    Notice,   Hearing  and  Jurisdiction   in    Particular   Proceedings, 
518. 
6.  As  to  the  Forum  in  Which  Trial  Is  Had ;  Change  of  Venue ;  etc., 
519. 

11.  Matters  Admissible  in  Defense,  519. 

12.  Statutes  Affecting  Rules  of  Evidence,  521. 

13.  Laws  Respecting  Damages  and  Penalties,  521. 

14.  Attorneys'  Fees,  522. 

15.  As  to  Form  of  Judgment  or  Decree,  522. 

16.  As  to  the  Constitutionality  of  Reviewing,  Modifying,  or  AnnulHng 

Judgments  and  Decrees,  523. 

17.  As  Guaranteeing  Right  of  Appeal,  Rehearing,  or  Other  Form  of 

Review,  523. 

18.  Due  Process  on  Appeal  or  Writ  of  Error,  523. 

a.  Generally  in  State  Courts,  523. 

b.  Jurisdiction  on  Appeal ;  Decisions  Reviewable ;  Scope  of  Re- 

view ;  Rule  of  Decision,'  etc.,  523. 

c.  Presumptions  on  Appeal,  524. 

19.  Due  Process  in  Particular  Proceedings,  524. 

i.  Admission,  Exclusion,  and  Deportation  of  Aliens,  524. 
1.  Escheats,  524. 

20.  Due  Process  in  Criminal  Proceedings,  525. 

a.  As  to  the  Power  of  the    States  to  Define  and  Punish  Crime 

and  Regulate  Criminal  Proceedings,  525. 

b.  As  Requiring  Equal  and  Impartial  Justice,  525. 

c.  As  Requiring  Full  Judicial  Trial;  Summary  Proceedings,  526. 

d.  As  Requiring  a  Competent  Tribunal,  526. 

e.  As  Securing  the  Benefit  of  the  First  Ten  Amendments  to  the 

Accused  in  a  State  Court,  526. 

f.  Due  Process  as  Requiring  an    Indictment  by  a  Grand  Jury; 

Number  of  Grand  Jurors,  527. 

i.  Form  and  Sufficiency  of  Indictment,  528. 

k.  Due  Process  in  the  Granting  and  Refusing  of  Alotions,  Chal- 
lenges, etc.,  528. 

1.  Jury  Trial  Not  Essential ;  Number,  Qualification,  and  Selec- 
tion of  Jurors.  528. 

n.  Due  Process  in  the  Admission  and  Exclusion  of  Evidence, 
528. 

o.  Instructions,  528. 

q.  Punishments;  Kind,  Degree  and  Planner  of  Enforcement, 
528. 

s.  Appeal,  Writ  of  Error,  New  Trial,  etc.,  529. 

VII.  Remedies,  529. 

A.  Generally  of  the  Right  to  Some  Form  of  Remedy,  529, 

B.  Remedy  against  the  United  States,  530. 

C.  Remedy  against  a  State,  530. 
E.  Particular  Remedies,  531. 

CROSS  REFERENCES. 

See  the  title  Due  Process  of  Law,  vol.  5,  p.  499,  and  references  there  given. 

479 


508-511 


DUE  PROCESS  OF  LAW 


Vol.  V 


In  addition,  see  Aliens,  ante.  p.  18;  Chinese  Exclusion  Acts,  p.  232;  Civil 
Rights,  p.  236;  Constitutional  Law,  p.  264;  Criminal  Law,  p.  434;  post. 
Eminent  Domain;  Habeas  Corpus;  Impairment  of  Obligation  of  Con- 
tracts; Interstate  and  Foreign  Commerce;  Intoxicating  Liquors;  Jus- 
tices OF  the  Peace;  Lotteries;  Pleading;  Police  Power;  Removal  of 
Causes;  Special  Assessments;  States;  Succession  Taxes;  Summons  and 
Process  ;  Taxation  ;  Trial  ;  United  States. 

I.  Origin  and  History  of  the  Constitutional  Amendments. 
See  note  1. 

II.  Definition  and  General  Principles. 

A.  No  Precise  Definition. — See  note  2. 

B.  Equivalent  to  Law  of  the  Land. — See  note  4. 

C.  Law  of  the  Land;  Definition  and  Principles — 1.  Generally;  Pre- 
scribed BY  Acts  of  Congress  and  by  the  States. — See  note  10. 

2.  Neither  Congress  nor  the  States  Make  Anything  Due  Process  They 
May  Choose  to  Declare  Such. — See  note  11. 

3.  By  \\'hat  Principles  Determined. — Must  Look  to  the  Constitution 
and  to  Settled  Usages  and  Modes  of  Proceeding. — See  note  14. 


508-1.  Origin  and  history  of  the  amend-  ^ 
ments. — Constitutional  provisions  to  the 
effect  that  no  state  should  deprive  any 
person  of  life,  liberty  or  property  with- 
out due  process  of  law  appeared  in  most 
of  the  state  constitutions  long  before  the 
fourteenth  amendment  was  adopted,  and 
that  principle  was  accepted  everywhere 
as  vital  in  the  American  systems  of  gov- 
ernment. Southwestern  Oil  Co.  v.  Texas, 
217  U.  S.  114,  54  L.   Ed.  688,  30  S.  Ct.  496. 

508-2.  No  precise  definition. — The  fed- 
eral supreme  court  has  never  attempted 
to  define  with  precision  the  words  "due 
process  of  law."  It  is  sufficient  to  say 
that  there  are  certain  immutable  princi- 
ples of  justice  which  inhere  in  the  very 
idea  of  free  government  which  no  mem- 
ber of  the  Union  may  disregard.  Holden 
V.  Hardy,  169  U.  S.  366,  389,  42  L.  Ed. 
780,  18  S.  Ct.  383.  "The  same  words  re- 
fer to  that  law  of  the  land  in  each  state, 
which  derives  its  authority  from  the  in- 
herent and  reserved  powers  of  the  state, 
exerted  within  the  limits  of  those  funda- 
mental principles  of  liberty  and  justice 
which  lie  at  the  base  of  all  our  civil  and 
political  institutions."  Twining  v.  New 
Jersey,  211  U.  S.  78,  53  L.  Ed.  97,  29  S. 
Ct.  14;  In  re  Kemmler,  136  U.  S.  436, 
448.    34    L.    Ed.    519,    10    S.    Ct.    930. 

508-4.  Equivalent  to  "law  of  the  land." 
— The  words  "due  process  of  law"  are 
equivalent  in  meaning  to  the  words  "law  of 
the  land,'"  contained  in  that  chapter  of 
Magna  Charta  which  provides  that  "no 
freedman  shall  be  taken,  or  imprisoned,  or 
disseised,  or  outlawed,  or  exiled,  or  any 
wise  destroyed;  nor  shall  we  go  upon 
him,  nor  send  upon  him,  but  by  the  law- 
ful judgment  of  his  peers  or  by  the  law 
of    the    land."      Twining   v.    New    Jersey, 


211  U.  S.  78,  53  L.  Ed.  97,  29  S.  Ct.  14; 
Murray  v.  Hoboken,  etc.,  Imp.  Co.,  18 
How.  272,  15  L.  Ed.  372;  Davidson  v. 
New  Orleans,  96  U.  S.  97,  24  L.  Ed.  616; 
Jones  V.  Robbins,  8  Graj%  329,  Cooley, 
Const.  Lim.  7th  ed.  500;  AIcGehee,  Due 
Process   of   Law,    16. 

510-10.  States  to  establish,  alter  and 
amend  their  own  systems. — A  procedure 
settled  in  English  law  at  the  time  of  the 
immigration,  and  brought  to  this  coun- 
try, and  practiced  by  our  ancestors,  is 
not  an  essential  element  of  due  process 
of  law.  If  it  were,  the  procedure  of  the 
first  half  of  the  seventeenth  century 
would  be  fastened  upon  the  American 
jurisprudence  like  a  straight  jacket,  only 
to  be  unloosed  by  constitutional  amend- 
ment. Twining  i\  New  Jersey,  211  U.  S. 
78,    53    L.    Ed.    97,    29    S.    Ct.    14. 

511-11.  Neither  congress  nor  state  to 
make  due  process  anything  they  may 
choose  to  declare  such. — Consistently 
with  the  requirements  of  due  process,  no 
change  in  ancient  procedure  can  be  made 
which  disregaids  those  fundamental  prin- 
ciples, to  be  ascertained  from  time  to 
time  by  judicial  action,  which  have  rela- 
tion to  process  of  law,  and  protect  the 
citizen  in  his  private  right,  and  guard  him 
against  the  arbitrary  action  of  govern- 
ment. Twining  v.  New  Jersey.  211  U. 
S.  78,  53   L.   Ed.  97,  29   S.  Ct.  14. 

511-14.  Tested  by  settled  usage  and 
modes  of  proceeding. — What  is  due  proc- 
ess of  law  may  be  ascertained  by  an  ex- 
amination of  those  settled  usages  and 
modes  of  proceeding  existing  in  the  com- 
mon and  statute  law  of  England  before 
the  emigration  of  our  ancestors,  and 
shown  not  to  have  been  unsuited  to  their 
civil    and    political    condition    by    having 


480 


Vol.  V. 


DUB  PROCESS  OF  LAW. 


512-517 


4.  Requires  Coxformity  to  Fuxdamextal  Prixciples — a.  Generally. — The 
fundamental  guarantee  of  due  process  is  absolute  and  not  merely  relative.^"* 

b.    Notice  and  Opportunity  for  Hearing. — See  note  18. 

d.  Forbids  Arbitrary,  Hostile  or  Discriminating  Exercise  of  Power. — See 
note  22. 

Arbitrary  and  Oppressive  Administration  of  Statutes. — See  post,  "Mere 
Possibility  of  Evil  or  Hardship  in  Particular  Instances  Xot  Sufficient  to  Invali- 
date Law,"  II,  C,  6. 

5.  Regards  Substance  and  Not  Form. — See  post.  "Construed  in  Light  of 
Practical  Affairs ;  Local  Conditions,  Habits,  Customs,  and  Traditions  of  Partic- 
ular Communities,"  V,  F. 

6.  Mere  Possibility  of  Evil  or  Hardship  in  Particular  Ixstaxces  Xot 
Sufficient  to  Invalidate  Law^. — It  is  not  sufificient  to  invalidate  a  statute  as 
being  opposed  to  the  due  process  and  equal  protection  clauses  of  the  constitution 
that  there  is  a  mere  possibility  of  evil,  abuse  or  hardship  arising  in  particular 
instances  under  its  administration.  In  the  framing  of  statutes,  the  constitution 
requires  no  such  delusive  exactness,  and  the  criterion  is  not  the  possibility  of 
conceivable  injury,  but  the  just  and  reasonable  character  of  the  requirements, 
having  reference  to  the  subject  with  which  the  statute  deals.^'*^ 


been  acted  on  by  them  after  the  settle- 
ment of  this  country.  Twining  z\  New 
Jersey,  211  U.  S.  79,  53  L.  Ed.  97,  29  S. 
Ct.   14. 

512-17a.  A  fundamental  guarantee — 
Absolute  and  not  merely  relative. — Ham- 
mond packing  Co.  v.  Arkansas,  212  U.  S. 
322,    350,    53    L.    Ed.    530,    29    S.    Ct.    370. 

512-18.  Notice  and  opportunity  for 
hearing. — The  essential  element  of  due 
process  of  law  is  an  opportunity  to  be 
heard,  and  a  necessary  condition  of  such 
opportunity  is  notice.  Jacob  v.  Roberts, 
223  U.  S.  261,  56  L.  Ed.  429,  32  S.  Ct. 
303;  Simon  v.  Craft,  182  U.  S.  427,  45 
L.  Ed.  1165,  21  S.  Ct.  836;  Jordan  v.  Com- 
monwealth, 225  U.  S.  167,  56  L.  Ed.  1038, 
32  S.  Ct.  651:  Twining  v.  New  Jersey, 
211  U.  S.  78.  Ill,  53  L.  Ed.  97,  29  S.  Ct. 
14;  Standard  Oil  Co.  v.  Missouri,  224  U. 
S.  270,  56  L.   Ed.  760,  32   S.  Ct.  406. 

"Due  process  requires  that  the  court 
which  assumes  to  determine  the  rights 
of  parties  shall  have  jurisdiction  and  that 
there  shall  be  notice  and  opportunity  for 
hearing  given  the  parties.  Subject  to 
these  two  fundamental  conditions,  which 
seem  to  be  universally  prescribed  in  all 
systems  of  law  established  by  civilized 
countries,  this  court  has,  up  to  this  time 
sustained  all  state  laws,  statutory  or  ju- 
dicially declared,  regulating  procedure, 
evidence,  and  methods  of  trials,  and  held 
them  to  be  consistent  with  due  process 
of  law."  Twining  v.  New  Jersey,  211  U. 
S.  78,  53  L.  Ed.  97,  29  S.  Ct.  14;  Ameri- 
can Land  Co.  v.  Zeiss,  219  U.  S.  47,  55 
L.  Ed.  82,  31  S.  Ct.  200;  Jordan  v.  Com- 
monwealth, 225  U.  S.  167,  56  L.  Ed.  1038, 
32  S.  Ct.  651;  Standard  Oil  Co.  v.  Mis- 
souri. 224  U.  S.  270,  56  L.  Ed.  760,  32 
S.    Ct.    406. 

514-22.  Same — Definition  in  Bank  of 
Columbia    v.    Okely. — The     words    '"  due 

12    U   S    Enc— 31  481 


process  of  law'  were  intended  to  secure 
the  individual  from  the  arbitrary  exercise 
of  the  powers  of  government,  unre- 
strained by  the  established  principles  of 
private  rights  and  distributive  justice." 
Twining  v.  New  Jersey,  211  U.  S.  78,  53 
L.  Ed.  97,  29  S.  Ct.  14;  Bank  v.  Okley,  4 
Wheat.  235,  244,  4  E.  Ed.  559,  approved 
in  Hurtado  v.  California,  110  U.  S.  516, 
527,  28  L.  Ed.  232,  4  S.  Ct.  Ill,  292; 
Leeper  v.  Texas,  139  U.  S.  462,  468,  35  L. 
Ed.  225,  11  S.  Ct.  577;  Scott  v.  McNeal, 
154  U.  S.  34,  45,  38  L.  Ed.  896,  14  S.  Ct. 
1108. 

517-34a.  Mere  possibility  of  evil,  abuse, 
or  hardship,  not  sufficient  to  invalidate 
statute. — American  Land  Co.  v.  Zeiss,  219 
U.  S.  47,  55  L.  Ed.  82,  31  S.  Ct.  200; 
Blinn  v.  Nelson,  222  U.  S.  1,  56  L.  Ed. 
65,  32  S.  Ct.  1;  Paddell  v.  New  York,  211 
U.  S.  446,  450,  53  L.  Ed.  275,  29  S.  Ct.  139. 
See,  also,  ante,  CONSTITUTIONAL 
LAW,  p.  264.  See,  also,  post,  "Con- 
strued in  Light  of  Practical  Affairs;  Lo- 
cal Conditions,  Habits,  Customs,  and 
Traditions  of  Particular  Communities," 
V,   F. 

You  can  not  carry  a  constitution  out 
with  mathematical  nicety  to  logical  ex- 
tremes. If  you  could,  we  never  should 
have  heard  of  the  police  power;  and  this 
is  still  more  true  of  taxation,  which  in 
most  communities  is  a  long  way  off  from 
a  logical  and  coherent  theory.  Paddell 
V.  New  York,  211  U.  S.  446,  450,  53  L. 
Ed.    275,    29    S.    Ct.    139. 

To  argue  that  the  provisions  of  a  stat- 
ute are  repugnant  to  the  due  process 
clause  because  a  case  may  be  conceived 
where  rights  in  and  to  property  would  be 
adversely  affected  without  notice  being 
actually  conveyed  by  the  proceedings  is 
in  effect  to  deny  the  power  of  the  state 
to    deal   with   the    subject.     The   criterion 


518-520 


DUE  PROCESS  OF  LAW. 


Vol.  V. 


III.  Persons  Protected. 

A.  Aliens. — As  to  due  process  in  the  admission,  exclusion  and  trial  of  aliens, 
see,  generally,  ante.  Aliens,  p.  18;  Constitutional  Law,  p.  264. 

D.  Natural  and  Artificial  Persons — 1.  Private  Corporations. — See  notes 
38,  39,  41. 

E.  Persons  in  Naval  or  Military  Service. — \\'hat  is  due  process  of  law 
must  be  determined  by  circumstances.  To  those  in  the  military  or  naval  service 
of  the  United  States,  military  law  is  due  process.^-^^ 

F.  Indians. — See  post,  Indians.  And  see  post,  "Property  and  Tribal  Rights 
of  Indians,"  VI,  D,  1,  s. 

IV.  Persons  Entitled  to  Raise  Constitutional  Objections. 
A.  General  Rule;  Complainant  Must  Come  within  Class  Whose  Rights 
Are  Infringed. — See  note  45. 


is  not  the  possibility  of  conceivable  in- 
jury, but  the  just  and  reasonable  char- 
acter of  the  requirements,  having  refer- 
ence to  the  subject  with  v^hich  the  stat- 
ute deals.  American  Land  Co.  v.  Zeiss, 
219  U.  S.  47,  55  L.  Ed.  82,  31  S.  Ct.  200. 

If  the  legislature  thinks  that  a  year  is 
long  enough  to  allow  a  party  to  recover 
his  property  from  a  third  hand,  and  estab- 
lishes that  time  in  cases  where  he  has  not 
been  heard  of  for  fourteen  years,  and 
presumably  is  dead,  it  acts  within  its  con- 
stitutional discretion.  Now  and  then  an 
extraordinary  case  may  turn  up,  but  con- 
stitutional law,  like  other  mortal  contriv- 
ances, has  to  take  some  chances,  and  in 
the  great  majority  of  instances,  no  doubt, 
justice  will  be  done.  Blinn  v.  Nelson,  222 
U.  S.  1,  56  L.  Ed.  65,  32  S.  Ct.  1.  See 
American  Land  Co.  v.  Zeiss,  219  U.  S.  47, 
67,  55  L.  Ed.  82,  31   S.  Ct.  200. 

518-38.  Private  corporations — As  per- 
sons within  meaning  of  fourteenth  amend- 
ment.—See  ante,  CONSTITUTIONAL 
LAW,  p.  264. 

519-39.  As  to  foreign  corporations,  see, 
also,  ante,  CONSTITUTIONAL  LAW, 
p.  264;  post.  FOREIGN  CO  RPO  RA- 
TIONS; INTERSTATE  AND  FOR- 
EIGN COMMERCE. 

Under  the  Missouri  Act  of  March  19, 
1907,  a  domestic  railway  company  might 
bring  an  action  in  the  federal  court,  or, 
in  a  proper  case,  remove  one  thereto, 
without  being  subject  to  forfeiture  of  its 
right  to  do  business,  or  the  imposition  of 
the  penalties  provided  for  in  the  act;"  but 
as  to  foreign  railway  companies  the  stat- 
ute provided  that  in  case  they  should 
bring  a  suit  in  the  federal  courts,  or  re- 
move it  from  the  state  courts  to  the  fed- 
eral courts,  their  right  to  do  business  in 
the  state  should  be  forfeited  and  that  they 
should  be  subject  to  the  penalties  pre- 
scribed in  the  act.  Held,  that  as  a  for- 
eign corporation  which  had  come  within 
the  state  and  complied  with  its  laws,  and 
which  had  acquired,  under  the  sanction  of 
the  state,  a  large  amount  of  property 
within  its  borders,  and  which  had  thus  be- 


come a  person  within  the  state,  within  the 
meaning  of  the  constitution  and  entitled 
to  its  protection,  the  statute  was  unconsti- 
tutional as  denying  the  equal  protection 
of  the  laws.  Herndon  v.  Chicago,  etc.,  R. 
Co.,  218  U.  S.  135,  54  L.  Ed.  970.  30  S.  Ct. 
633;  Roach  v.  Atchison,  etc.,  R.  Co.,  218 
U.  S.  159,  54  L.  Ed.  978,  30  S.  Ct.  639,  see, 
also,  W'istern  Union  Tel.  Co.  v.  Coleman. 
216  U.  -S.  1,  54  L.  Ed.  355,  30  S.  Ct.  190; 
Pullman  Co.  v.  Coleman,  216  U.  S.  156,  54 
L.  Ed.  378,  30  S.  Ct.  232;  Ludwig  v.  West- 
ern Union  Tel.  Co.,  216  U.  S.  146,  54  L. 
Ed.  423,  30  S.  Ct.  280;  Southern  R.  Co.  v. 
Greene,  216  U.  S.  400,  54  L.  Ed.  536,  30  S. 
Ct.  287. 

519-41.  "Liberty"  refers  only  to  liberty 
of  natural  persons. — Whatever  "liberty  of 
contract"  a  corporation  may  have  must 
be  exercised  in  subordination  to  any  valid 
regulations  the  state  may  prescribe  for 
the  conduct  of  its  business.  German  Al- 
liance Ins.  Co.  z!.  Hale,  219  U.  S.  307,  55  L. 
Ed.  229,  31  S.  Ct.  246. 

520-44a.  Persons  in  naval  or  military 
service. — ^Reaves  v.  Ainsworth,  219  U.  S. 
296,  55  L.  Ed.  255,  31  S.  Ct.  230. 

The  proceedings  before  the  examining 
board,  convened  under  Act  Oct.  1,  1890. 
c.  1241,  26  Stat.  502  (U.  S.  Comp.  St.  1901, 
p.  849),  enacted  to  provide  for  the  pro- 
inotion  or  retirement  of  army  officers, 
which  resulted  in  the  discharge  of  an  of- 
ficer with  one  year's  pay,  by  order  of  the 
president,  were  not  had  without  jurisdic- 
tion, and  hence  without  due  process  of 
law,  because  the  board  had  previously 
made  an  order  that  such  officer  was  then 
physically  incapacitated  for  service  from 
disabilit}'  contracted  in  line  of  duty,  but 
had  a  reasonable  hope  of  recovery,  and 
that  he  could  not  with  safety  proceed 
with  his  examination,  since  such  order 
was  merely  provisional,  and  not  a  final  de- 
cision, which,  under  the  law,  would  have 
entitled  him  to  be  retired  with  three  quar- 
ters pay  for  life.  Reaves  v.  Ainsworth, 
219  U.  S.  296,  55  L.  Ed.  255,  31  S.  Ct.  230, 
affirming  judgment  (1906)  28  App.  D.  C. 
157. 

520-45.  General  rule — Complainant  must 


4s:; 


Vol.  V 


DUE  PROCESS  OF  LAW. 


526 


V.  Rules  of  Construction. 

F.  Construed  in  Light  of  Practical  Affairs;  Local  Conditions,  Habits, 
Customs  and  Traditions  of  Particular  Communities. — The  due  process 
clause  is  to  be  given  a  reasonable  construction  in  consideration  of  the  practical 
affairs  of  men.  What  is  due  process  of  law  must  be  determined  by  circum- 
stances, and  in  passing  upon  the  constitutionality  of  statutes  alleged  to  be  ob- 
noxious to  the  due  process  clause  of  the  fourteenth  amendment,  the  courts  should 
be  careful  to  avoid  pressing  the  broad  language  of  that  amendment  to  a  drily 
logical  extreme  without  taking  into  consideration  the  local  conditions  which  the 
statutes  were  intended  to  meet.  Government  is  a  moral  and  not  a  mathematical 
science,  and  you  can  not  carry  a  constitution  out  with  mathematical  nicety  to 
logical  extremes.  Upon  questions  of  this  kind,  local  conditions  and  the  long- 
settled  habits,  customs  and  traditions  of  the  community  play  a  part  as  well  as 
grammar  and  logic. ^^^ 


come  within  class  whose  rights  are  in- 
fringed.— One  who  would  strike  down  a 
state  statute  as  violative  of  the  federal 
constitution  must  bring  himself  by  proper 
averments  and  showing  within  the  class 
as  to  whom  the  act  thus  attacked  is  un- 
constitutional. He  must  show  that  the 
alleged  unconstitutional  feature  of  the 
law  injures  him,  and  so  operates  as  to  de- 
prive him  of  rights  protected  by  the  fed- 
eral constitution.  Standard  Stock  Food 
Co.  V.  Wright,  225  U.  S.  540.  56  L.  Ed. 
1197,  32  S.  Ct.  784;  Southern  R.  Co.  v. 
King,  217  U.  S.  524,  534,  54  L.  Ed.  868, 
30  S.  Ct.  594;  Tyler  v.  Judges,  179  U.  S. 
405,  45  L.  Ed.  252,  21  S.  Ct.  206;  Collins  z: 
Texas,  223  U.  S.  288,  56  L.  Ed.  439,  32  S. 
Ct.  286.  See,  generally,  on  his  point  ante, 
CONSTITUTIONAL  LAW,  p.  264. 

526-58a.  Construed  in  light  of  practical 
affairs — Local  conditions,  habits,  customs, 
and  traditions  of  particular  communities. 
—Noble  State  Bank  v.  Haskell,  219  U.  S. 
104.  55  L.  Ed.  112,  31  S.  Ct.  186.  followed 
in  Shallenberger  v.  First  State  Bank.  219 
U.  S.  13  4.  55  L.  Ed.  117,  31  S.  Ct.  189;  Pad- 
dell  V.  New  York,  211  U.  S.  446,  448,  53  L. 
Ed.  275,  29  S.  Ct.  139;  Reaves  r.  Ains- 
worth,  219  U.  S.  296.  55  L.  Ed.  255,  31  S. 
Ct.  230;  Laurel  Hill  Cemetery  v.  San 
Francisco,  216  U.  S.  358,  54  L.  Ed.  515,  30 
S.  Ct.  301;  Hairston  v.  Danville,  etc.,  R. 
Co.,  208  U.  S.  598.  607,  52  L.  Ed.  637,  28  S. 
Ct.  331.  See,  also,  ante,  CONSTITU- 
TIONAL LAW,  'p.  264;  post.  POLICE 
POWER. 

What  is  due  process  of  law  must  be 
determined  by  circumstances.  To  those 
in  the  niilitary  or  naval  services  of  the 
United  States,  the  military  law  is  due 
process.  Reaves  v.  Ainsworth,  219  U.  S. 
296,  55  L.  Ed.  255,  31  S.  Ct.  230. 

Upon  question  of  constitutional  law, 
due  process,  the  long  settled  habits  of  the 
community  play  a  part  as  well  as  gram- 
mar and  logic.  Paddell  v.  New  York,  211 
U.  S.  446,  448,  53  L.  Ed.  275,  29  S.  Ct.  139. 

In  questions  of  this  kind  great  caution 
mAist  be  used  in  overruling  the  decision 
of  the  local  authorities,  or  in  allowing  it 


to  be  overruled.  Laurel  Hill  Cemetery  v. 
San  Francisco,  216  U.  S.  358,  54  L.  Ed. 
515,  30  S.  Ct.  301. 

The  extent  to  which  legislation  may 
modify  and  restrict  the  uses  of  property 
consistently  with  the  constitution  is  not  a 
question  for  pure  abstract  theory  alone. 
Tradition  and  the  habits  of  the  com- 
munity count  for  more  than  logic.  Laurel 
Hill  Cemetery  v.  San  Francisco,  216  U.  S. 
358,  54  L.  Ed.  515,  30  S.  Ct.  301. 

The  legislation  being  familiar  with 
local  conditions,  is  primarily  the  judge  of 
the  necessity  of  such  enactments.  The 
mere  fact  that  a  court  may  differ  with  the 
legislature  in  its  views  of  public  policy,  or 
that  judges  may  hold  views  inconsistent 
with  the  propriety  of  the  legislation  in 
question,  affords  no  ground  for  judicial 
interference,  unless  the  act  in  question  is 
unmistakably  and  palpably  in  excess  of 
legislative  power.  Williams  v.  Arkansas 
217  U.  S.  79,  54  L.  Ed.  673,  30  S.  Ct.  493. 

You  can  not  carry  a  constitution  out 
with  mathematical  nicety  to  logical  ex- 
tremes. If  you  could,  we  never  should 
have  heard  of  the  police  power.  And  this 
is  still  more  true  of  taxation,  which  in 
most  communities  is  a  long  way  off  from 
a  logical  and  coherent  theory.  Paddell  v. 
New  York,  211  U.  S.  446,  450,  53  L.  Ed. 
275,  29  S.  Ct.  139. 

"In  determining  whether  the  fourteenth 
amendment  has  been  violated  and  a  per- 
son deprived  of  liberty  or  property  with- 
out due  process  of  law  in  the  exercise  of 
the  police  power  of  the  states  we  must  be 
cautious  about  pressing  the  broad  words 
of  that  amendinent  to  a  drily  logical  ex- 
treme. i\Iany  laws  which  it  would  be 
vain  to  ask  the  court  to  overthrow  could 
be  shown,  easily  enough,  to  transgress  a 
scholastic  interpretation  of  one  or  an- 
other of  the  great  guaranties  in  the  bill  of 
rights.  They  more  or  less  limit  the  lib- 
erty of  the  individual,  or  they  diminish 
property  to  a  certain  extent.  We  have 
few  scientifically  certain  criteria  of  legis- 
lation, and  as  it  often  is  difficult  to  mark 
the   line   where  what  is   called  the  police 


483 


527-528 


DUE  PROCESS  OF  LAW. 


Vol.  V. 


VI.  Of  the  General  Operation  and  Effect  of  the  Constitutional  Guaranties. 
A.  "As   Restrictions   upon    State    and   Federal   Power — 2.    The   Fifth 
Amendment   a   Restriction    upon   the   Federal   Governme;nt;   the    Four- 
teenth A  Restriction  upon  the  States. — See  note  65. 

3.  Effect  of  Fourteenth  Amendment  as  Forbidding  the  States  to 
Abridge  the  Rights  Secured  by  the  First  Ten  Amendments. — It  is  possible 
that  some  of  the  personal  rights  safeguarded  by  the  first  eight  amendments 
against  national  action  may  also  be  safeguarded  against  state  action,  because  a 
denial  of  them  would  be  a  denial  of  due  process  of  law.  But  if  this  is  so,  it  is 
not  because  those  rights  are  enumerated  in  the  first  eight  amendments,  but  be- 
cause they  are  of  such  a  nature  that  they  are  included  in  the  conception  of  due 
process  of  law.^*^*^ 

4.  The  Fifth  Amendment  as  a  Restriction  upon  the  Express  Powers  of 
Congress. — Power  to  Regulate  Commerce. — See  post,  "In  the  Exercise  of 
the  Power  to  Regulate  Commerce,"  VI,  D,  2,  b,  (4),  (b^).  See,  also,  post. 
Interstate  and  Foreign  Commerce. 

Power  of  Congress  to  Define  and  Punish  Crime — Elements  of  Offense. 
— The  power  of  congress  to  declare  an  oft'ense  and  to  exclude  the  elements  of 
knowledge  and  due  diligence  from  any  inquiry  as  to  its  commission  can  not  be 
questioned.*'^'* 

4  ^.  Operation  of  Due  Process  Clause  as  Forbidding  Congress  to  Deny 
the  Equal  Protection  of  the  Laws. — See  ante,  Constitutional  Law,  p. 
264. 


power  of  the  state  is  limited  by  the  con- 
stitution of  the  United  States,  judges 
should  be  slow  to  read  into  the  latter  a 
nolumus  mutare  as  against  the  lawmaking 
power."  Noble  State  Bank  v.  Haskell,  219 
U.  S.  104,  55  L.  Ed.  112,  31  S.  Ct.  186;  fol- 
lowed in  Shallenberger  v.  First  State 
Bank,  219  U.  S.  114,  55  L.  Ed.  117,  31  S. 
Ct.   189. 

527-65.  Fifth  amendment  a  restriction 
upon  the  federal  government. — By  the  un- 
varying decisions  of  the  federal  supreme 
court  the  first  ten  amendments  of  the  fed- 
eral constitution  are  restrictive  only  of 
national  action.  Twining  v.  New  Jersey, 
211  U.  S.  78,  92,  53  L.  Ed.  97,  29  S.  Ct.  14; 
Ughbanks  v.  Armstrong,  208  U.  S.  481,  52 
L.  Ed.  582,  28  S.  Ct.  372;  Spies  v.  Illinois, 
123  U.  S.  131,  31  L.  Ed.  80,  8  S.  Ct.  21; 
Eilenbecker  v.  District  Courts,  134  U.  S. 
31,  33  L.  Ed.  801,  10  S.  Ct.  424;  Brown  v. 
New  Jersey,  175  U.  S.  172,  174,  44  L.  Ed. 
119,  20  S.  Ct.  77;  Maxwell  v.  Dow,  176  U. 
S.  581,  586,  44  L.  Ed.  597,  20  S.  Ct.  448. 

Const.  U.  S.  Amend.  5,  is  not  restrictive 
of  state,  but  only  of  national,  action. 
Judgment,  In  re  City  of  Pittsburg,  66  A. 
348,^217  Pa.  227;  Appeal  of  Hunter,  Id., 
affirmed.  Hunter  v.  Pittsburgh,  207  U.  S. 
161,  52   L.   Ed.  151,  28   S.  Ct.  40. 

527-66a.  Effect  of  fourteenth  amendment 
as  forbidding  the  states  to  abridge  the 
rights  secured  by  the  first  ten  amend- 
ments.— Twining  v.  New  Jersey,  211  U.  S. 
78.  53  L.  Ed.  '97,  29  S.  Ct.  14,  citing  Chi- 
cago, etc.,  R.  Co.  V.  Chicago,  166  U.  S.  226, 
41  L.  Ed.  979.  17  S.  Ct.  581. 

Same — Exemption  from  self-incrimina- 
tion.— The    privilege    of    exemption    from 


self-incrimination  is  not  fundamental  in 
due  process  of  law,  nor  is  it  an  essential 
part  of  it.  It  is  not,  therefore,  safe- 
guarded as  against  state  action  by  the  due 
process  clause  of  the  fourteenth  amend- 
ment. Twining  v.  New  Jersey,  211  U.  S. 
78,  53  L.  Ed.  97,  29  S.  Ct.  14. 

528-69a.  Power  to  define  and  punish 
crime. — Chicago,  etc.,  R.  Co.  v.  United 
Stales,  220  U.  S.  559,  55  L.  Ed.  582,  31  S. 
Ct.  612. 

•  For  example,  it  was  competent  for  con- 
gress, in  enacting  the  Safety  Appliance 
Acts  of  March  2,^893  (27  Stat,  at  L.  531, 
chap.  196,  U.  S.  Comp.  Stat.  1901,  p.  3174), 
April  1,  1896  (29  Stat,  at  L.  85,  c.  87,  U.  S. 
Comp.  Stat.  1901,  p.  3175),  and  March  2, 
1903  (32  Stat,  at  L.  943,  chap.  976,  U.  5. 
Comp.  Stat.  Supp.  1909,  p.  1143),  to  im- 
pose an  absolute  liability  upon  carriers 
engaged  in  moving  interstate  commerce, 
whose  cars  do  not  satisfy  the  require- 
ments of  those  acts,  so  that  the  carriers 
whose  cars  do  not  conform  to  the  re- 
quirements of  those  acts  can  not  escape 
liability  by  showing  that  they  exercised 
reasonable  care  in  equipping  their  cars 
with  required  safety  appliances,  and  that 
they  used  due  care  and  diligence  to  keep 
them  in  repair  by  the  usual  inspection.  In 
short,  it  was  competent  for  congress  to 
impose  upon  the  carriers  an  absolute  duty 
which  is  not  discharged  by  the  exercise  of 
reasonable  care  and  diligence.  Chicago, 
etc.,  R.  Co.  V.  United  States.  220  U.  S. 
559.  55  L.  Ed.  582,  31  S.  Ct.  612,  following 
St.  Louis,  etc.,  R.  Co.  v.  Taylor,  210  U.  S. 
;i81,  52   L.   Ed.  1061,  28   S.   Ct.  616. 


484 


Vol.  V 


DUE  PROCESS  OF  LAW. 


530-532 


7.  Xo  Radical  Change  in  Theory  of  Government;  a  Restriction  upon 
State:  Action  Only. — See  notes   76,  77,  80. 

8.  As  TO  THE  Reserved  Powers  oe  the  States — a.  As  to  the  Right  of  the 
State  to  Adopt  Its  Own  System  of  Laws  and  Change  the  Same  at  Pleasure — 
(1)  Generally. — Creation  and  Control  of  Municipal  Subdivisions. — The 
creation  and  control  of  its  municipal  subdivisions,  such  as  the  power  to  sub- 
divide, consolidate  or  annex  existing  municipalities  without  the  consent  of  the 
inhabitants  resident  therein,  is  a  matter  entirely  within  the  control  of  the  state. ^^^ 


530-76.  No  radical  change  in  theory  of 
government. — The  fourteenth  amendment 
did  not  radicall}^  change  the  whole  theory 
of  the  relations  of  the  state  and  federal 
governments  to  each  other  and  of  both 
governments  to  the  people.  Jordan  v. 
Commonwealth,  225  U.  S.  167,  56  L.  Ed. 
1038.  32  S.  Ct.  651;  In  re  Kemmler,  136  U. 
S.  436,  448,  34  L.  Ed.  519,  10  S.  Ct.  930; 
Brown  v.  New  Jersey,  175  U.  S.  172,  175, 
44  L.   Ed.   119,  20  S.   Ct.   77. 

Looking  at  the  clause  of  the  amendment 
prohibiting  the  deprivation  of  property 
without  due  process  of  law,  it  <s  to  be 
remembered  that  the  provision  to  that  ef- 
fect appeared  in  most  of  the  state  con- 
stitutions long  before  the  amendment 
was  adopted,  and  that  principle  was  ac- 
cepted everywhere  as  vital  in  the  Ameri- 
can systems  of  government.  But  the 
amendment,  although  negative  in  its 
words,  had  the  effect  to  incorporate  into 
the  fundamental  law  of  each  state  a  rule 
theretofore  prescribed  by  the  constitution 
of  the  United  States  for  the  general  gov- 
ernment and  its  agencies.  So  that,  prior 
to  the  adoption  of  the  fourteenth  amend- 
ment, the  states  were  controlled,  in  im- 
posing and  collecting  taxes,  entirely  bj' 
their  own  fundamental  law;  and  if  they 
departed  from  due  process  of  law  in  mat- 
ters involving  the  deprivation  of  prop- 
erty, the  taxpayers  injuriously  affected  by 
its  action  could  not,  for  that  reason,  prior 
to  the  amendment,  invoke  for  his  or  its 
protection  any  provision  of  the  constitu- 
tion of  the  United  States.  But  upon  the 
adoption  of  the  fourteenth  amendment, 
whatever  their  own  constitutions  may 
then,  or  have  subsequently,  declared,  the 
states  become  bound,  as  was  the  United 
States  by  the  fifth  amendment,  not  to  de- 
prive any  person  of  property  without  due 
process  of  law.  Still  it  was  never  con- 
templated, when  the  amendment  was 
adopted,  to  restrain  or  cripple  the  taxing 
power  of  the  state,  whatever  the  methods 
they  divised  for  the  purposes  of  taxation, 
unless  those  methods,  by  their  necessary 
operation,  were  inconsistent  with  the 
fundamental  principles  embraced  by  the 
requirements  of  due  process  of  law  and 
the  equal  protection  of  the  laws  in  re- 
spect of  rights  or  property.  Southwestern 
Oil  Co.  f.  Texas,  217  U.  S.  114,  54  L.  Ed. 
688,   30   S.   Ct.   490. 

530-77.  Refers  to  state  action — Creates 
no   new   or   additional   rights. — The    four- 


teenth and  fifteenth  amendments  are  re- 
straints upon  the  state  action  solely,  and 
not  upon  the  action  of  individuals.  The 
thirteenth  amendment,  on  the  other  hand, 
operates  to  abolish  slavery  and  involun- 
tary servitude  whether  the  same  is  at- 
tempted to  be  enforced  by  states  or  in- 
dividuals. United  States  v.  Powell,  212 
U.  S.  564,  53  L.  Ed.  653,  following  Hodges 
z:  United  States,  203  U.  S.  1,  51  L.  Ed. 
65,  27  S.  Ct.  6.  See.  also,  ante,  CON- 
STITUTIOXAL  LAW,  p.  264. 

531-80.  Restricts  state  in  all  of  its  de- 
partments and  instrumentalities. — The 
Illinois  state  board  of  equalization  in 
making  an  assessment  pursuant  to  the 
supposed  command  of  a  writ  of  man- 
damus represents  the  state,  there  being  no 
method  of  reviewing  its  decision  except 
by  judicial  proceedings  for  relief  from  the 
assessment,  and  its  action  is  therefore 
repugnant  to  Const.  U.  S.  Amendment  14, 
if  it  denies  an}' one  that  due  process  of  law 
protected  by  that  amendment  against  im- 
pairment by  the  state.  Raymond  z\  Chi- 
cago Union  Tract.  Co.,  207  U.  S.  20,  52  L. 
Ed.  78,  28  S.  Ct.  7;  Raymond  v.  Chicago 
Edison  Co.,  207  U.  S.  42,  52  L.  Ed.  89,  28 
S.  Ct.  14. 

532-83a.  Creation  and  control  of  mu- 
nicipal subdivisions. — Hunter  :■.  Pitts- 
bureh,  207  U.  S.  161,  52  L.  Ed.  151.  28  S. 
Ct.   40. 

Act  February  7,  1906  (P.  L.  7),  authoriz- 
ing contiguous  cities  to  consolidate,  is  not 
contrary  to  the  federal  constitution,  as 
not  due  process  of  law,  in  that  it  au- 
thorizes the  electors  of  the  consolidated 
territory  to  determine  the  question  of  the 
annexation  of  a  smaller  city  to  a  larger 
one,  instead  of  leaving  the  matter  to  the 
electors  of  the  sm.aller  city  to  decide. 
(U.  S.  Sup.,  Pa.  1907),  In  re  City  of  Pitts- 
burg, 66  A.  348,  217  Pa.  227:  Appeal  of 
Hunter,  Id.  Judgment  affirmed.  Hunter  v. 
Pittsburgh,  207  U.  S.  161,  52  L.  Ed.  151, 
28  S.  Ct.  40  (Pa.  Super.  Ct.  1906),  In  re 
City  of  Pittsburg,  32  Pa.  Super.  Ct.  210. 

Citizens  and  taxpaj-ers  of  a  lesser  mu- 
nicipality annexed  under  the  authority  of 
Act  Pa.  Feb.  7,  1906,  §§  1-9  (P.  L.  7-11), 
to  an  adjoining  and  larger  municipality, 
are  not  deprived  of  their  property  with- 
out due  process  of  law  by  reason  of  the 
burden  of  additional  taxation  resulting 
from  the  consolidation,  although  the 
method  of  voting  prescribed  by  the  stat- 
ute has  permitted  the  voters  of  the  larger 


485 


533-538 


DUB  PROCESS  OF  LAW. 


Vol.  V. 


(2)  Limitations  upon  Power  of  State  to  Adopt  Its  Own  Laws  and  to  Change 
Same  at  Pleasure — (b)  As  to  Wisdom,  Justice  or  Policy  of  Legislation;  Legis- 
lative Motives. — See  note  85. 

(c)  Fundamental  Rights  and  Principles  Not  to  Be  Ignored,  nor  Specific  and 
Applicable  Provisions  of  the  Constitution. — See  note  88. 

b.  Separation  of  Departments;  Delegation  of  Pozvers. — See  ante,  Constitu- 
tional lyAw,  p.  264. 

d.  Qualifications,  Powers,  Tenure  and  Removal  of  State  Officers. — See 
note  90. 


city  to  overpower  the  voters  of  the 
smaller  one,  and  compel  the  union  with- 
out their  consent  and  against  their  protest. 
Judment,  In  re  City  of  Pittsburg,  66  A. 
348,  217  Pa.  227;  Appeal  of  Hunter,  Id., 
afifirmed.  Hunter  v.  Pittsburgh,  207  U.  S. 
161,  52  L.  Ed.  151,  28  S.  Ct.  40. 

533-85.  Wisdom,  justice  or  policy  of 
legislation. — The  legislature,  being  fa- 
miliar with  local  conditions,  is  primarily 
the  judge  of  the  necessity  of  such  enact- 
ments. The  mere  fact  that  a  court  may 
aififer  with  the  legislature  in  its  views  of 
public  policy,  or  that  judges  may  hold 
views  inconsistent  with  the  propriety  of 
the  legislation  in  question,  affords  no 
ground  for  judicial  interference,  unless  the 
act  in  question  is  unmistakably  and  pal- 
pably in  excess  of  legislative  power.  Wil- 
liams V.  Arkansas,  217  U.  S.  79,  54  L.  Ed. 
673,  30  S.  Ct.  493.  See,  also,  ante,  -'Con- 
strued in  Light  of  Practical  Afifairs;  Local 
Conditions,  Habits,  Customs  and  Tradi- 
tions of  Particular  Communities,"  V,  F. 

It  has  been  settled,  Griffith  v.  Con- 
necticut, 218  U.  S.  563,  54  L.  Ed.  1151.  31 
S.  Ct.  132,  and  cases  cited,  that  the  four- 
teenth amendment  does  not  operate  to 
deprive  the  states  of  their  lawful  power, 
and  of  the  right,  in  the  exercise  of  such 
power,  to  resort  to  reasonable  methods 
inherently  belonging  to  the  power  ex- 
erted. On  the  contrary,  the  provisions  of 
the  due  process  clause  only  reistrain  those 
arbitrary  and  unreasonable  exertions  of 
power  which  are  not  really  within  lawful 
state  power,  since  thej''  are  so  unreason- 
able and  unjust  as  to  impair  or  destroy 
fundamental  rights.  American  Land  Co. 
V.  Zeiss,  219  U.  S.  47,  55  L.  Ed.  82.  31  S. 
Ct.  200. 

536-88.  Fundamental  principles  and  ap- 
plicable provisions  of  constitution  not  to 
be  ignored. — Consistently  with  the  re- 
quirements of  due  process,  no  change  in 
ancient  procedure  can  be  made  which  dis- 
regards those  fundamental  principles,  to 
be  ascertained  from  time  to  lime  by  ju- 
dicial action  which  nave  relation  to  proc- 
ess of  law.  and  protect  the  citizen  in  ins 
piivate  right,  and  guard  him  against  the 
arbitrary  action  of  government.  Twining 
V.  New  Jersey,  211  U.  S.  78,  53  L.  Ed.  97, 
29  S.   Ct.  14. 

Subject  to  the  requirement  of  due 
process  of  law  as  stated  in  the  precedmg 


paragraph,  the  states  are  under  no  re- 
striction as  to  their  metiiod  of  procedure 
in  the  administration  of  public  justice.  It 
is  a  fundamental  principle  of  due  process 
that  in  judicial  proceedings  the  court  must 
have  jurisdiction,  and  that  there  can  he 
no  jurisdiction  of  the  person  of  a  defend- 
ant without  notice  and  opportunity  to  such 
defendant  to  be  heard.  Subject,  however, 
to  these  two  fundamental  conditions,  the 
supreme  court  of  the  United  States  has 
sustained  all  state  laws,  whether  statu- 
tory or  judicially  declared,  regulatin.;- 
procedure  and  methods  of  trial,  and  held 
them  to  be  consistent  with  due  process  of 
law.  Twining  v.  New  Jersey,  211  U.  S. 
78,  53  L.  Ed.  97,  29  S.  Ct.  14;  Jordan  v. 
Commonwealth,  225  U.  S.  1'67,  56  L.  Ed. 
1038,  32  S.  Ct.  651;  American  Land  Co.  v. 
Zeiss,  219  U.  S.  47,  55  L.  Ed.  82,  31  S.  Ct. 
200;  Standard  Oil  Co.  v.  Missouri.  224  U. 
S.  270,  56  L.  Ed.  760,  32  S.  Ct.  406;  Jacob 
V.  Roberts,  223  U.  S.  261,  56  L.  Ed.  42;). 
32  S.  Ct.  303;  Simon  v.  Craft,  182  U.  S. 
427,  45  L.  Ed.  1165,  21  S.  Ct.  836. 

The  fourteenth  amendment  does  not 
operate  to  deprive  the  states  of  their  law- 
ful power,  nor  of  the  right,  in  the  exer- 
cise of  such  power,  to  resort  to  reasori- 
able  methods  inherently  belonging  to  the 
power  exerted.  On  the  contrary,  the  pro- 
visions of  the  due  process  clause  only  re- 
strain those  arbitrary  and  unreasonable  ex- 
ertions of  power  which  are  not  really 
within  lawful  state  power,  since  they  are 
so  unreasonable  and  unjust  as  to  impair  or 
destroy  fundamental  rights.  American 
Land  Co.  v.  Zeiss,  219  U.  S.  47,  55  L.  Ed. 
82,  31   S.  Ct.  200. 

Exemption  from  self-incrimination  as  a 
fundamental  right. — The  privilege  of  ex- 
emption from  self-incrimination  is  not 
fundamental  in  due  process  of  law,  nor  an 
essential  part  of  it,  and  it  is  not  safe- 
guarded as  against  state  action  by  th':;  due 
process  clause  of  the  fourteenth  amend- 
ment. Twining  v.  New  Jersey,  211  U.  S. 
78,  53   L.   Ed.  97,  29   S.  Ct.   14. 

538-90.  Qualification,  tenure  and  re- 
moval of  state  officers. — The  fourteenth 
amendment  does  not  deprive  a  state  of  the 
power  to  determine  what  duties  may  i)e 
performed  by  local  officers,  nor  whether 
they  be  appointed,  or  elected  by  the  peo- 
ple. Soliah  V.  Heskin,  222  U.  S.  522,  56  L. 
Ed.  294,  32  S.  Ct.  103,  citing  Dreyer  v.  lUi- 


486 


Vol.  V. 


DUE  PROCESS  OF  LAW. 


539 


e.  As  to  Power  of  State  to  Define  and  Punish  Crime. — See  ante,  Coxstitu- 
TioxAL  L.AW,  p.  264.  And  see  post,  "As  to  the  Power  of  the  State  to  Define  and 
Punish  Crime  and  Regulate  Criminal  Proceedings,"  VI,  E.  20,  a. 

f.  As  to  What  Shall  Constitute  an  Actionable  Wrong;  Damages  Recoverable. 
— See  note  93. 


nois,  187  U.  S.  71,  83,  47  L.  Ed.  79,  23  S. 
Ct.  28;  Prentis  v.  Atlantic  Coast  Line 
R.  Co.,  211  U.  S.  210,  53  L.  Ed.  150, 
29  S.  Ct.  67;  County  of  Mobile  v.  Kimball. 
102  U.  S.  691,  706,  26  L.  Ed.  238;  Fallbrook 
Irrig.  Dist.  v.  Bradley,  164  U.  S.  112,  167, 
41  L.  Ed.  369,  17  S.  Ct.  56. 

539-93.  As  to  what  shall  constitute  ac- 
tionable wrongs — Damages  recoverable. — 
See.  generally,  ante,  COXSTITUTIOXAL 
LAW,  p.  264.  See,  also,  post,  "Laws  Re- 
specting- Rights  of  Action  and  Defenses,' 
yi,  D,  2,  b,  (4).  (d);  "Matters  Admissible 
in  Defense,"  VI,  E,  11;  "Laws  Respecting 
Damages  and  Penalties,"  VI,  E,  13. 

As  to  the  abolition  of  the  doctrines  of 
fellow  servants,  comparative  and  contribii- 
iorj  negligence,  see  ante,  CONSTITU- 
TIONAL LAW,  p.  264;  post,  INTER- 
STATE AND  FOREIGN  COMMERCE; 
POLICE  POWER.  As  to  the  powers  of 
territorial  legislatures,  see  ante,  CON- 
STITUTIONAL  LAW,   p.   264. 

Wrongs  not  previously  actionable. — It 
is  a  general  principle  of  our  law  that 
there  is  no  individual  liability  for  an  act 
which  ordinary  human  care  and  foresight 
could  not  guard  against.  It  is  also  a 
general  principle  of  the  same  law  that  a 
loss  from  any  cause  purely  accidental  must 
rest  where  it  chances  to  fall.  But  behind 
and  above  these  general  principles  which 
the  law  recognizes  as  ordinarily  prevail- 
ing, there  lies  the  legislative  power,  which, 
in  the  absence  of  organic  restraint,  may, 
for  the  general  welfare  of  societ3%  im- 
pose obligations  and  responsiJailities 
otherwise  nonexistent.  Chicago  v.  Sturges, 
222  U.   S.  313,  56  L.   Ed.  215,  32  S.   Ct.  92. 

Same — Imposing  liability  upon  mu- 
nicipal subdivisions  for  injuries  caused  by 
mob  violence. — The  imposition  of  abso- 
lute liability  upon  the  community,  when 
property  is  destroyed  through  the  vio- 
lence of  a  mob  is  not,  an  unusual  police 
regulation.  Neither  is  it  arbitrary,  as  not 
resting  upon  reasonable  grounds  of 
policj-.  Chicago  v.  Sturges,  222  U.  S.  313, 
56  L.   Ed.  215,  32   S.   Ct.  92. 

The  power  of  the  state  to  impose  lia- 
bility for  damage  and  injury  to  property 
from  riots  and  mobs  includes  the  power  to 
make  a  classification  of  the  subordinate 
municipalities  upon  which  the  respon- 
sibility may  be  imposed.  It  is  a  matter 
for  the  exercise  of  legislative  discretion, 
and  the  equal  protection  of  the  law  is  not 
denied  where  the  classification  is  not  so 
unreasonable  and  extravagant  as  to  be  a 
jnere     arbitrary     mandate.       Chicago      v. 


Sturges,  222  U.  S.  313,  56  L.  Ed.  215,  32 
S.  Ct.  92. 

Making  a  municipality  liable  for  thre-e- 
lourths  of  the  damage  to  property  within 
its  limits  caused  by  a  mob  or  riot,  as  is 
done  by  Laws  111.  1887,  p.  237,  which 
saves  to  the  owner  his  action  against  the 
rioters,  and  gives  the  municipality  a  lien 
upon  any  judgment  against  such  partici- 
pants for  reimbursement,  or  a  remedy  to 
the  municipality  directly  against  the  in- 
dividuals causing  the  damage,  to  the 
amount  of  any  judgment  it  may  have  paid 
the  sufiferer,.  is  a  valid  exercise  of  the  po- 
lice power,  and  does  not  deny  to  the  mu- 
nicipality due  process  of  law  because  it 
imposes  liability  irrespective  of  any  ques- 
tion of  the  power  of  the  municipality  to 
liave  prevented  the  violence,  or  of  negli- 
gence in  the  use  of  its  power.  Chicago  r. 
Sturges,  222  U.  S.  313,  56  L.  Ed.  215,  ?,2 
S.  Ct.  92,  affirming  Sturges  v.  Chicago. 
237  111.  46,  86  N.  E.  683. 

A  city  is  not  denied  the  equal  protec- 
tion of  the  laws  by  Laws  111.  1887,  p.  237, 
imposing  upon  it  a  liability  for  damage 
to  property  within  its  limits,  caused  by  a 
mob  or  not,  because,  when  property 
damaged  under  like  circumstances  is  situ- 
ated in  a  village  or  other  incorporated 
town,  the  liability  is  imposed  upon  the 
county  instead  of  upon  such  village  or 
town.  Chicago  v.  Sturges,  222  U.  S.  313, 
56  L.  Ed.  215,  32  S.  Ct.  92,  affirming 
Sturges  V.  Chicago,  237  111.  46,  86  N.  E. 
683. 

Power  to  exclude  elements  of  knowl- 
edge, negligence,  etc. — The  power  of  the 
legislature  to  declare  an  offense  and  to 
exclude  the  elements  of  knowledge  and 
due  diligence  from  any  injury  as  to  its 
commission  can  not  be  questioned.  Chi- 
cago, etc.,  R.  Co.  V.  United  States,  220  U. 
S.   559,   55   L.    Ed.   582,   31    S.    Ct.   612. 

For  example,  it  was  competent  for  con- 
gress, in  e.nscting  the  Safety  Appliance 
Acts  of  March  2,  1893  (27  Stat,  at  L.  531. 
chap.  196,  U.  S.  Comp.  Stat.  1901),  April 
1,  1896  (29  Stat,  at  L.  85.  c.  87.  U.  S.  Comp. 
Stat.  1901.  p.  3175),  and  March  2,  1903  (32 
Stat,  at  L.  943,  chap.  976,  U.  S.  Comp. 
Stat.  Supp.  1909,  p.  1143),  to  impose  an 
absolute  liability  upon  carriers  engaged  in 
moving  interstate  commerce,  whose  cars 
do  not  satisfy  the  requirements  of  those 
acts,  so  that  the  carriers  whose  cars  do  not 
conform  to  the  requirements  of  those  acts 
can  not  escape  liability  by  showing  that 
they  exercised  reasonable  care  in  equip- 
ping  their   cars   with   the   required    safety 


487 


540-541 


DUB  PROCESS  OF  LAW. 


Vol.  V. 


g.   As  a  Limitation  upon  the  Police  Power. — See  notes  94,  97. 
9.    Legislative    Power    Limited  to    Persons  and    Property  within    the 
Territorial  Jurisdiction  of  the  State. — See  note  98. 


appliances,  and  that  they  used  due  care 
and  diligence  to  keep  them  in  repair  by 
the  usual  inspection.  In  short,  it  was 
competent  for  congress  to  impose  upon 
the  carriers  an  absolute  duty  which  is  not 
discharged  by  the  exercise  of  reasonable 
care  and  diligence.  Chicago,  etc.,  R.  Co. 
V.  United  States,  220  U.  S.  559,  55  L.  Ed. 
582,  31  S.  Ct.  612,  following  St.  Louis,  etc., 
R.  Co.  V.  Taylor,  210  U.  S.  281,  52  L.  Ed. 
1061,  28  S.  Ct.  616. 

Exacting  double  liability  and  attorney's 
fees  in  certain  cases. — See,  also,  ante, 
CONSTITUTIONAL  LAW,  p.  264. 

Exacting  double  liability  and  an  at- 
torney's fee  under  the  authority  of  Ark. 
Laws  1907,  No.  61,  from  a  !-ailway  com- 
pany refusing  to  pay  within  thirty  days 
an  excessive  demand  for  the  killing  of 
live  stock  by  one  of  its  trains,  takes 
the  company's  property  without  due 
process  of  law.  St.  Louis,  etc.,  R.  Co.  v. 
Wynne,  234  U.  S.  354,  56  L.  Ed.  799,  32 
S.   Ct.  493. 

The  owner  of  two  horses  which  were 
killed  by  a  train  of  a  railway  company 
served  upon  the  company  a  written  no- 
tice demanding  damages  in  the  sum  of 
$500.  The  company  refused  to  pay  the 
demand,  and  after  the  expiration  of  thirty 
days  the  owner  brought  suit  in  a  court 
of  the  state  to  recover  his  damages,  al- 
leged in  the  complaint  to  be  $400.  A 
trial  to  a  jury  resulted  in  a  verdict  for 
the  owner,  assessing  his  damages  at  the 
amount  sued  for,  and  the  court,  deeming 
the  statute  applicable,  gave  judgment  for 
double  that  amount  and  for  an  attorney's 
fee  of  $50.  It  will  be  perceived  that,  while 
before  the  suit  the  owner  demanded  $500 
as  damages,  which  the  company  refused 
to  pay,  he  did  not  in  his  suit  either  claim 
or  establish  that  he  was  entitled  to  that 
amount.  On  the  contrary,  by  the  allega- 
tions in  his  complaint  he  confessed,  and 
by  the  verdict  of  the  jury  it  was  found, 
that  his  damages  wer^  but  $400.  Evi- 
dently, therefore,  said  the  court,  the  prior 
demand  was  excessive  and  the  coinpany 
rightfully  refused  to  pay  it,  whereas  the 
application  made  of  the  statute  was  such 
that  the  company  was  subjected  to  this 
extraordinary  liability  for  refusing  to  pay 
the  excessive  demand  made  before  the 
suit.  The  statute,  as  so  construed  and  ap- 
plied, was  an  arbitrary  exercise  of  the 
powers  of  government  and  violative  of  the 
fundamental  rights  embraced  within  the 
conception  of '  due  process  of  law.  St. 
Louis,  etc.,  R.  Co.  v.  Wynne,  224  U.  S. 
354,   56   L.    Ed.    799,   32    S.    Ct.    493. 

540-94.  As  a  limitation  upon  the  police 
power. — That    the    fourteenth    amendment 


was  not  intended  to  and  does  not  strip 
the  states  of  the  power  to  exert  their 
lawful  police  authority  is  settled,  and  re- 
quires no  reference  to  authorities.  Louis- 
ville, etc.,  R.  Co.  V.  Melton,  218  U.  S.  36, 
54  L.   Ed.   921,  30  S.   Ct.  676. 

The  fourteenth  amendment  does  not 
operate  to  deprive  the  states  of  their  law- 
ful power,  and  of  the  right,  in  the  exer- 
cise of  such  power,  to  resort  to  reason- 
able methods  inherently  belonging  to  the 
power  exerted.  On  the  contrary,  the  pro- 
visions of  the  due  process  clause  only  re- 
strain those  arbitrary  and  unreasonable 
exertions  of  power  which  are  not  really 
within  lawful  state  power,  since  they  are 
so  unreasonable  and  unjust  as  to  impair 
or  destroy  fimdamental  rights.  American 
Land  Co.  v.  Zeiss,  219  U.  S.  47,  55  L.  Ed. 
82,  31  S.  Ct.  200;  Griffith  v.  Connecticut, 
218  U.  S.  563,  54  L.  Ed.  1151,  31  S.  Ct.  132, 
and  cases  cited. 

541-97.  Police  power  not  unlimited — • 
Judicial  review. — See,  also,  ante,  "Con- 
strued in  Light  of  Practical  Affairs;  Local 
Conditions,  Habits,  Customs  and  Tradi- 
tions of  Particular  Communities,"  V,  F. 
And  see,  generally,  post,  POLICE 
POWER. 

Where  the  subject  to  which  the  statute 
relates  is  clearly  within  the  police  powers 
of  the  state,  the  statute  can  not  be  held 
to  be  repugnant  to  the  due  process  clause 
of  the  fourteenth  amendment,  because  of 
the  nature  or  character  of  the  regulations 
Vvdiich  the  statute  embodies,  unless  it 
clearly  appears  that  those  regulations  are 
so  beyond  all  reasonable  relation  to  the 
subject  to  which  they  are  applied  as  to 
amount  to  mere  arbitrary  usurpation  of 
power.  Lemieux  v.  Young,  211  U.  S.  489, 
496,  53  L.  Ed.  295,  29  S.  Ct.  174;  Booth  v. 
Illinois,  184  U.  S.  425,  46  L.  Ed.  G23. 

The  legislature,  being  familiar  with 
local  conditions,  is  primarily  the  judge  of 
the  necessity  of  such  enactments.  The 
mere  fact  that  a  court  may  differ  with  the 
legislature  in  its  views  of  public  policy, 
or  that  judges  may  hold  views  incon- 
sistent with  the  propriety  of  the  legisla- 
tion in  question,  affords  no  ground  for 
judicial  interference,  unless  the  act  in 
question  is  unmistakably  and  palpably  in 
excess  of  legislative  power.  Williams  v. 
Arkansas,  217  U.  S.  79,  54  L.  Ed.  673.  30 
S.    Ct.    493. 

541-98.  Powers  of  legislature  limited  to 
persons  and  property  within  the  territorial 
jurisdiction  of  the  state. — See,  generally, 
ante,  CONSTITUTIONAL  LAW,  p.  264; 
post,  INTERSTATE  AND  FOREIGN 
COMMERCE;. TAXATION. 

Crimes    without     the     state — Combina- 


488 


Vol.  V. 


DUE  PROCESS  OF  LAW. 


546-552 


B.  As  to  Acts  Illegal  under  State  Law;  as  Requiring  Proceedings  to 
Comply  with  State  Laws — ^.  De:cision  of  State  Court  Conclusive^  as  to 
Whether  Act  or  Proceeding  Was  in  Conformity  to  State  Law  and  Prac- 
TicF. — See  note  7. 

6.  Scope  of  Review  by  Federal  Supreme  Court — b.  Decision  of  State  Court 
as  to  Proper  Construction  of  State  Laio  Not  Reviezvable. — See  note  11. 


tions  to  restrain  trade  by  foreign  corpo- 
rations.— Property  ,is  not  taken  without 
due  process  of  law,  contrary  to  Const.  U. 
S.  Amend.  14,  by  Act  Ark.  Jan.  23,  1905 
(Acts  1905,  p.  2),  §  1,  imposing  a  penalty 
upon  a  foreign  corporation  doing  business 
within  the  state  while  a  member  of  a  trust 
or  combination  to  control  prices,  although 
such  combination  may  not  have  been 
created  in  the  state,  and  may  not  afifect 
prices  in  such  state,  since  the  statute,  as 
construed  by  the  state  courts,  does  not 
forbid  or  affix  penalties  to  acts  done  be- 
yond the  state,  but  simply  prohibits  a 
corporation  from  continuing  to  do  busi- 
ness within  the  state  after  it  has  done, 
either  within  or  outside  of  the  state,  the 
enumerated  acts.  Judgment  (1907),  100 
S.  W.  407,  81  Ark.  519,  affirmed.  Ham- 
mond Packing  Co.  v.  Arkansas,  212  U.  S. 
322,  53  L.   Ed.  530,  29  S.   Ct.  370. 

Same — Production  of  books  and  papers 
situated  without  the  state. — Due  process 
of  law  is  not  denied  a  foreign  corporation 
doing  business  in  the  state  by  Act  Vt. 
Oct.  9,  1906,  p.  79,  No.  75,  under  which 
it  may  be  compelled,  under  penalty  of 
fine  in  case  of  refusal,  to  produce  before 
a  court  or  grand  jury  material  evidence 
in  the  shape  of  books  or  papers,  kept  by 
it  in  the  state,  and  which  are  in  its  cus- 
tody and  control,  although  at  the  time 
outside  the  borders  of  the  state.  Judg- 
ment, In  re  Consolidated  Rendering  Co. 
(Vt.  1907),  66  A.  790,  affirmed.  Consoli- 
dated Rendering  Co.  •:'.  Vermont,  207  U. 
S.   541.   52    L.    Ed.   327,   28   S.   Ct.   178. 

546-7.  Conformity  to  state  law  and 
practice  determined  by  state  court. — See, 
also,  ante,  CONSTITUTIONAL  LAW, 
p.  264. 

The  interpretation  of  a  state  constitu- 
tion and  the  conformity  of  an  enactment 
of  the  state  legislature  to  that  constitu- 
tion are  questions  solelj^  for  the  con- 
sideration of  the  state  courts,  whose  de- 
cisions thereon  conclude  the  federal 
supreme  court.  Hunter  v.  Pittsburgh,  207 
U.  S.  161,  52  L.  Ed.  151,  28  S.  Ct.  40;  Sea- 
board Air  Line  Railway  v.  Seegers,  207 
U.  S.  73,  52  L.  Ed.  108,  28  S.   Ct.  28. 

The  practice  of  the  state  courts,  that 
is  to  say.  whether  such  courts  conform 
to  the  constitution,  laws  and  usage  of  the 
state,  in  acting  upon  matters  within  their 
jurisdiction,  is  left  to  the  states  and  to 
their  courts  of  last  resort  to  determine. 
Waters-Pierce  Oil  Co.  7-.  Texas,  No.  2, 
212  U.  S.  112,  118,  53  L.  Ed.  431.  29  S.  Ct. 
227. 


For  example,  when  the  contention  is 
that  under  the  provisions  of  the  state  con- 
stitution and  laws  the  court  had  no  juris- 
diction of  the  cause,  the  question  is  con- 
clusively settled  by  the  decision  of  the 
state  court  of  last  resort  construing  its 
own  constitution  and  laws.  Standard  Oil 
Co.  V.  Missouri,  224  U.  S.  270,  56  L.  Ed. 
760,  32  S.  Ct.  406. 

The  fourteenth  amendment  guarantees 
that  the  defendant  shall  be  given  that 
character  of  notice  and  opportunity  to  be 
heard  which  is  essential  to  due  process  of 
law.  When  that  has  been  done,  the  re- 
quirements of  the  constitution  are  met, 
and  it  is  not  for  the  federal  supreme 
court  to  determine  whether  there  has  been 
an  erroneous  construction  of  the  statute 
or  common  law.  Standard  Oil  Co.  v. 
Missouri,  224  U.  S.  270,  56  L.  Ed.  760,  32 
S.  Ct.  406. 

Whether  notice  required  by  state  law, 
to  physician  illegally  practicing  profession. 
— The  construction  given  by  the  Mary- 
land court  of  appeals  to  Md.  Code  1904, 
art.  43,  §  99,  making  it  a  misdemeanor  to 
attempt  to  practice  medicine  without 
registration,  as  not  being  subject  to  the 
limitations  of  §  80  of  that  article,  relating 
to  the  sending  of  notice  to  unregistered 
physicians,  is  conclusive  upon  the  federal 
supreme  court  on  writ  of  error  to  the 
state  court.  Watson  z:  ]\Iarvland,  218  U. 
S.  173,  54  L.  Ed.  987,  30  S.  Ct.  644. 

A  conviction  for  practicing  medicine 
without  registration  contrary  to  Code 
Pub.  Gen.  Laws,  Md.  1904,  art.  43,  §  99,  is 
not  wanting  in  due  process  of  law  be- 
cause the  accused  was  not  given  the  no- 
tice •  required  by  §  80  of  that  article  to 
be  sent  to  unregistered  physicians,  where 
he  had  a  trial  before  a  court  and  jury  un- 
der the  ^laryland  statutes,  was  proceeded 
against  under  the  forms  provided  for  by 
the  laws  of  that  state,  and  the  section  un- 
der which  the  conviction  was  had  has 
been  construed  by  the  highest  court  of  the 
state  completely  to  define  the  ofifense 
v/ithout  resorting  to  the  necessity  of  no- 
tifying unregistered  physicians  before 
they  become  liable  to  the  penalties  for 
practicing  without  registration.  Watson 
z:  Maryland,  218  U.  S.  173,  54  L.  Ed.  987, 
30  S.  Ct.  644,  affirming  judgment  (1907), 
66  A.   635,   105   Md.  650. 

552-11.  Federal  court  will  not  construe 
statute  differently  from  state  court  so  as 
to   bring   it   in   conflict   with   due   process 


489 


552 


DUB  PROCESS  OF  LAW. 


Vol.  V. 


clause. — See,  also,  ante,  CONSTITU- 
TIONAL LAW,  p.  264. 

In  determining  the  constitutionality  of 
a  statute  of  a  state  whether  from  a  stand- 
point of  due  process  of  law  or  otherwise, 
the  federal  supreme  court  takes  the  stat- 
ute as  the  state  court  has  construed  it. 
In  other  words  whatever  may  be  the  seem- 
ing effect  of  the  statute  upon  its  face,  or 
whatever  construction  the  federal  su- 
preme court  might  have  placed  upon  it 
independent  of  the  opinion  of  the  state 
court,  it  will  not  be  held  unconstitutional 
if  it  has  been  construed  by  the  state  court 
in  such  a  manner  as  to  remove  any  ap- 
parent conflict  with  the  federal  constitu- 
tion. Kentucky  Union  Co.  v.  Common- 
wealth, 219  U.  S.  140,  55  L.  Ed.  137,  31  S. 
Ct.   171. 

The  state  courts  have  the  right  to  con- 
strue their  own  statutes,  and  their  judg- 
ment in  such  matters  is  conclusive  upon 
the  federal  courts.  Palmer  v.  Texas,  212 
U.  S.  118,  131,  53  L.  Ed.  435,  29  S.  Ct.  230. 

In  determining  the  constitutionality  of 
a  state  law  as  tested  by  the  federal  con- 
stitution the  supreme  court  of  the  United 
States  will  take  the  statute  as  a  local  law 
to  mean  what  the  state  courts  says  it 
means.  Brodnax  v.  Missouri,  219  U.  S. 
285,  55  L.  Ed.  219,  31  S.  Ct.  238. 

In  determining  whether  state  laws  or 
proceedings  thereunder  operate  to  de- 
prive a  citizen  of  his  property  without 
due  process  of  law  in  violation  of  the 
fourteenth  amendment  of  the  constitution 
of  the  United  States,  the  supreme  court 
will  accept  the  construction  of  the  stat- 
utes given  by  the  state  court.  Boston 
Chamber  of  Commerce  v.  Boston,  217  U. 
S.  189,  54  L.  Ed.  725,  30  S.  Ct.  459; 
Maiorano  v.  Baltimore,  etc.,  R.  Co.,  213 
U.  S.  268,  272,  53  L.  Ed.  792,  29  S.  Ct.  424. 

In  testing  the  constitutionality  of  a 
statute  under  the  due  process  clause  of 
the  fourteenth  amendment,  the  supreme 
court  of  the  United  States  will  hold  them- 
selves bound  by  construction  placed  upon 
the  act  by  the  state  court,  and  will  not 
consider  a  contrary  construction  con- 
tended for  in  argument  for  the  purpose 
of  holding  it  void  under  the  fourteenth 
amendment.  Hammond  Packing  Co.  v. 
Arkansas,  212  U.  S.  322,  347,  53  L.  Ed. 
530,  29  S.  Ct.  370. 

No  valid  objection  founded  upon  the 
fourteenth  amendment  to  the  federal  con- 
stitution can  be  urged  against  the  action 
of  a  state  court  in  so  construing  a  state 
law  as  to  bring  it  into  harmony  with  the 
federal  and  state  constitutions  on  the 
theory  that  the  court  so  far  neglected  the 
obvious  meaning  of  the  statute  as  to  make 
its  judgment  an  exercise  of  legislative 
power.  Londoner  v.  Denver,  210  U.  S. 
373,  52  L.  Ed.  1103,  28  S.  Ct.  708. 

The  complaint  in  this  assignment  was 
not  that  the  court  gave  a  construction  to 
the    law    which    brought    it    into    conflict 


with  the  federal  constitution,  but  that,  in 
construing  the  law  so  as  to  bring  it  into 
harmony  with  the  federal  and  state  con- 
stitutions, the  court  so  far  neglected  its 
obvious  meaning  as  to  make  the  judgment 
an  exercise  of  legislative  power.  Passing 
upon  this  constitution,  the  court  says: 
"We  know  of  nothing  in  the  fourteenth 
amendment  which  gives  us  authority  to 
consider  a  question  of  this  kind." 
Londoner  v.  Denver,  210  U.  S.  373,  52  L. 
Ed.  1103,  28  S.  Ct.  708. 

It  is  necessary  to  inquire  what  con- 
struction has  been  put  upon  a  statute  by 
the  highest  court  of  the  state,  for  that 
construction  must  be  accepted  by  the 
courts  of  the  United  States,  and  be  re- 
garded by  them  as  a  part  of  the  provision 
when  they  are  called  upon  to  determine 
whether  it  violates  any  right  secured  by 
the  federal  constitution.  Lindsley  v. 
Natural  Carbonic  Gas  Co.,  220  U.  S.  61, 
55  L.  Ed.  369,  31  S.  Ct.  337;  Weigh tman 
V.  Clark,  103  U.  S.  256,  260,  26  L.  Ed.  392; 
Morley  v.  Lake  Shore,  etc.,  R.  Co.,  146  U. 
S.  162,  166,  36  L.  Ed.  925,  13  S.  Ct.  54; 
Olsen  V.  Smith,  195  U.  S.  332,  342,  49  L. 
Ed.  224,   25   S.   Ct.   52. 

The  construction  placed  by  the  highest 
court  of  the  state  upon  N.  Y.  Laws  1908, 
chap.  429,  enacted  to  safeguard  natural 
mineral  springs  against  waste  and  impair- 
ment, must  be  accepted  by  the  federal 
courts  in  determining  the  validity  of  such 
statute  under  the  federal  constitution. 
Lindsley  v.  Natural  Carbonic  Gas  Co.,  220 
U.    S.  61,   55   L.   Ed.   369,   31    S.   Ct.   337. 

Limitation  of  doctrine,  Bailey  v.  Ala- 
bama.— While  it  has  been  generally  held 
that  the  supreme  court  of  the  United 
States,  in  determining  whether  a  state  law 
is  in  conflict  with  any  provision  of  the 
federal  constitution  will  accept,  as  a  part 
thereof,  the  construction  placed  upon  the 
same  by  the  state  court,  this  doctrine  re- 
ceived a  severe  jolt  in  the  case  of  Bailey 
V.  Alabama.  219  U.  S.  219,  55  L.  Ed.  191, 
31  S.  Ct.  145,  in  which  Mr.  Justice 
Hughes,  delivering  the  opinion  of  the 
majority  of  the  court,  held  that  the  Ala- 
bama statute  making  it  a  crime  for  any 
person  to  contract  for  labor  and  services 
of  another  and  receive  advances  in  money 
or  property  with  the  Intention  of  de- 
frauding such  other  out  of  such  advances, 
and  making  the  failure  to  perform  the 
contract  or  to  refund  the  advances  with- 
out just  cause  prima  facie  evidence  of 
such  fraudulent  intent,  was  not  relieved 
of  this  objectionable  feature  by  the  ruling 
of  the  state  court  to  the  efifect  that  the 
jvtry  was  not  controlled  by  the  presump- 
tion, even  though  unrebutted,  and  might 
still  find  the  accused  not  guilty,  even  in 
the  absence  of  evidence  tending  to  rebut 
the    statutory    presumption. 

Speaking  upon  this  point  Mr.  Justice 
Hughes  says:  "But  the  controlling  con- 
struction of  the  statute  is  the  affirmance 


490 


Vol.  V. 


DUE  PROCESS  OF  LAW 


553-557 


C.  Liberty  and  the  Deprivation  Thereof — 1.  Definition  and  General 
Nature  of  Liberty. — See  notes  14,  17. 

2.  Liberty  Subject  to  Reasonable  Restraints — a.  Generally,  under  the 
Police  Power. — See  notes  20,  2L  22. 


of  this  judgment  of  conviction.  It  is  not 
sufficient  to  declare  that  the  statute  does 
not  make  it  the  duty  of  the  jury  to  con- 
vict, where  there  is  no  other  evidence  but 
the  breach  of  the  contract  and  the  failure 
to  pay  the  debt.  The  point  is  that,  in  such 
a  case,  the  statute  authorizes  the  jury  to 
convict.  It  is  not  enough  to  say  that  the 
jury  may  not  accept  that  evidence  as 
alone  sufficient;  for  the  jury  maj"-  accept 
it,  and  they  have  the  express  warrant  of 
the  statute  to  accept  it  as  a  basis  for  their 
verdict.  And  it  is  in  this  light  that  the 
validity  of  the  statute  must  be  determined. 
Bailev  v.  Alabama,  219  U.  S.  219,  55  L. 
Ed.  191,  31  S.  Ct.  145. 

553-14.  Right  to  pursue  trade,  calling, 
profession,  etc. — See,  generally,  ante, 
CONSTITUTIONAL  LAW,  p.  264;  post, 
POLICE  POWER. 

554-17.  The  liberty  of  contract,  in- 
cluded in  right  to  pursue  lawful  business, 
etc. — It  has  been  held  that  the  right  to 
make  contracts  is  embraced  in  the  con- 
ception of  liberty  as  guaranteed  by  the 
constitution.  Chicago,  etc.,  R.  Co.  v.  Mc- 
Guire,  219  U.  S.  549,  55  L.  Ed.  328,  31  S. 
Ct.  259;  Allgeyer  v.  Louisiana,  165  U.  S. 
578,  41  L.  Ed.  832;  17  S.  Ct.  427;  Lochner 
V.  New  York,  198  U.  S.  45,  49  L.  Ed.  937, 
•25  S.  Ct.  539;  Adair  v.  United  States,  208 
U.  S.  161,  52  L.  Ed.  436,  28  S.  Ct.  277. 

The  general  right  to  make  a  contract  in 
relation  to  business  is  part  of  the  liberty 
of  the  individual  protected  by  the  four- 
teenth amendment  of  the  federal  constitu- 
tion. Adair  v.  United  States.  208  U.  S. 
161,  52  L.  Ed.  436.  28  S.  Ct.  277;  Allgeyer 
V.  Louisiana,  165  U.  S.  578,  41  L.  Ed.  832, 
17  S.  Ct.  427;  Muller  v.  Oregon,  208  U.  S. 
412.   52   L.   Ed.   551,   28   S.   Ct.   324. 

Contracts  for  the  sale  or  hire  of  labor. 
— That  the  constitution  of  the  United 
States,  in  the  fourteenth  amendment 
thereof,  protects  the  right  to  make  con- 
tracts for  the  sale  of  labor,  and  the  right 
to  carry  on  trade  or  business,  agamst 
hostile  state  legislation,  has  been  af- 
firmed in  decisions  of  the  federal  supieme 
court,  and  the  court  shows  no  disposition 
to  question  those  cases  in  which  the  right 
has  been  upheld  and  maintained  against 
such  legislation.  McLean  v.  Arkansas, 
211  U.  S.  539,  545.  53  L.  Ed.  315.  29  S.  Ct. 
206;  Allgeyer  v.  Louisiana,  165  U.  S.  578, 
41  L.  Ed.  832,  17  S.  Ct.  427;  Adair  v. 
United  States,  208  U.  S.  161,  52  L  Ed. 
436,   28   S.   Ct.  277. 

Same — Right  of  employee  to  quit — • 
Right  of  employer  to  discharge — Stat- 
utes forbidding  discharge  of  employees 
because  members  of  labor  organizations. 
— The  riglit  of  a  pe'"son   ro  sell   his  labor 


upon  such  terms  as  he  deems  proper  is, 
in  its  essence,  the  same  as  the  right  of 
the  purchaser  of  labor  to  prescribe  the 
conditions  upon  which  he  will  accept  such 
labor  from  the  person  offering  to  sell  it. 
So  the  right  of  the  employee  to  quit  the 
service  of  the  employer,  for  whatever 
reason,  is  the  same  as  right  of  the  em- 
ployer, for  whatever  reason,  to  dispense 
with  the  services  of  such  employee.  Adair 
V.  United  States,  208  U.  S.  161,  52  L  Ed. 
436,  28  S.  Ct.  277. 

In  all  such  particulars  the  employer  and 
the  employee  have  equality  of  right,  and 
any  legislation  that  disturbs  that  equality 
is  an  arbitrary  interference  with  the 
liberty  of  contract  which  no  government 
can  legallv  justify  in  a  free  land.  Adair 
v.  United  States,  208  U.  S.  161,  52  L.  Ed. 
436,  28  S.  Ct.  277. 

Personal  libertj^  as  well  as  the  right  of 
property  are  invaded  without  due  process 
of  law  in  violation  of  Const.  U.  S.  Amend. 
5,  by  the  provisions  of  Act  June  1,  1898, 
c.  370,  §  10,  30  Stat.  424  (U.  S.  Comp.  St. 
1901,  p.  3205),  making  it  a  criminal  of- 
fense against  the  United  States  for  an 
agent  or  officer  of  an  interstate  carrier, 
having  full  authority  in  the  premises  from 
his  principal,  to  discharge  an  employee 
from  service  to  such  carrier  because  of 
his  membership  in  a  labor  organization. 
Judgment,  United  States  v.  Adair  (D.  C), 
152  F.  737,  reversed.  Adair  v.  United 
States,  208  U.  S.  161,  52  L.  Ed.  436,  28  S. 
Ct.  277. 

555-20.  Liberty  subject  to  reasonable 
restraints. — Liberty  implies  the  absence  of 
arbitrary  restraint,  not  immunity  from 
reasonable  regulations  and  prohibitions 
imposed  in  the  interests  of  the  community. 
Chicago,  etc..  R.  Co.  v.  McGuire,  219  U. 
S.  549,  55  L.  Ed.  328,  31  S.  Ct.  259. 

556-21.  Restrictions  under  the  police 
power. — See,  also,  post,  POLICE 
POWER. 

In  Jacobson  v.  Massachusetts,  197  U.  S. 
11,  49  L.  Ed.  643,  25  S.  Ct.  358,  the  federal 
supreme  court  said:  "But  the  liberty 
secured  by  the  constitution  of  the  United 
States  to  every  person  within  its  jurisdic- 
tion does  not  import  an  absolute  right  in 
each  person  to  be  at  all  times,  and  in  all 
circumstances,  wholly  freed  from  re- 
straint. There  are  manifold  restraints  to 
which  every  person  is  necessarily  subject 
for  the  common  good."  Williams  v.  Ar- 
kansas. 217  U.  S.  79.  54  L.  Ed.  673,  30  S. 
Ct.  493;  Laurel  Hill  Cemetery  v.  San 
Francisco,  216  U.  S.  358,  54  L.  Ed.  515,  30 
S.   Ct.  301. 

557-22.  Police  power  not  unlimited — 
Subject  to  judicial  review — Power  to  re- 


491 


557 


DUB  PROCESS  OF  LAW. 


Vol.  V. 


b.  Regulation  of  Business,  Trade,  Occupation  or  Profession. — See  ante,  Con- 
stitutional Law,  p.  264,  et  seq. ;  post.  Police  Power. 

c.  Limitations  of  the  Liberty  of  Contract — (1)  Generally. — See  note  28. 


view  exercise  with  caution — Regulations 
declared  invalid  only  in  clear  cases,  etc. — 

See,  generally,  post,  POLICE  POWER. 
See,  also,  ante,  "Construed  in  Light  of 
Political  Affairs;  Local  Conditions,  Hab- 
its, Customs  and  Traditions  of  Particular 
Communities,"   V,    F. 

557-28.  Limitation  of  the  liberty  of  con- 
tract— Generally. — The  freedom  of  con- 
tract is  a  qualified,  and  not  an  absolute, 
fight.  There  is  no  absolute  freedom  to  do 
as  one  wills  or  to  contract  as  one  chooses. 
The  guaranty  of  liberty  does  not  with- 
draw from  legislative  supervision  that 
wide  department  of  activity  which  consists 
of  the  making  of  contracts,  or  deny  to  gov- 
ernment the  power  to  provide  restrictive 
safeguards.  Chicago,  etc.,  R.  Co.  v.  Mc- 
Guire,  219  U.  S.  549,  55  L.  Ed.  328,  31  S. 
Ct.  259;  Louisville,  etc.,  R.  Co.  v.  Mottley, 
219  U.  S.  467,  55  L.  Ed.  297,  31  S.  Ct.  265; 
Bailey  z'.  Alabama,  311  U.  S.  452,  53  L.  Ed. 
278,  29  S.  Ct.  141;  Grenada  Lumber  Co.  v. 
Mississippi,   217   U.    S.   433,   54   L.    Ed.   826. 

30  S.  Ct.  535;  McLean  v.  Arkansas,  211  U. 
S.  539,  53  L.  Ed.  315,  29  S.  Ct.  206;  House 
V.  Mayes,  219  U.  S.  270,  55  L.  Ed.  213,  31 
S.  Ct.  234;  German  Alliance  Ins.  Co.  v. 
Hale,  219  U.  S.  307,  55  L.  Ed.  229,  31  S. 
Ct.  246;  Brodnax  v.  Missouri,  219  U.  S. 
285,  55  L.  Ed.  219,  31  S.  Ct.  238;  Atlantic, 
etc.,  R.  Co.  V.  Riverside  Mills,  219  U.  S. 
186,  55  L.  Ed.  167,  31  S.  Ct.  164,  followed 
in  Louisville,  etc.,  R.  Co.  v.  Scott,  219  U. 
S.  209,  55  L.  Ed.  183,  31  S.  Ct.  171;  Muller 
V.  Oregon,  208  U.  S.  412.  52  L.  Ed.  551, 
28  S.  Ct.  324;  Mutual  Loan  Co.  v.  Martell, 
222  U.  S.  225,  56  L.  Ed.  175,  32  S.  Ct.  74. 

There  is  no  such  thing  as  absolute 
freedom  of  contract.  Contracts'  which 
contravene  public  policy  can  not  be  law- 
fully made  at  all;  and  the  power  to  make 
contracts  may  in  all  cases  be  regulated 
as  to  form,  evidence,  and  validity  as  to 
third  persons.  The  power  of  government 
extends  to  the  denial  of  liberty  of  con- 
tract to  the  extent  of  forbidding  or  regu- 
lating every  contract  which  is  reasonably 
calculated  to  injuriously  affect  the  public 
interests.  Atlantic,  etc.,  R.  Co.  v.  River- 
side Mills,  219  U.  S.  186.  55  L.  Ed.  167,  31 
S.  Ct.  164,  followed  in  Louisville,  etc.,  R. 
Co.  V.  Scott,  219  U.   S.  209,  55  L.   Ed.  183, 

31  S.   Ct.   171. 

No  contract  can  be  carried  into  effect 
which  was  originally  made  contrary  to 
the  provisions  of  law,  or  which,  being 
made  consistently  with  the  rules  of  law 
at  the  time,  had  become  illegal  in  virtue 
of  some  subsequent  law.  Louisville,  etc., 
R.  Co.  V.  Mottley,  219  U.  S.  467,  55  L.  Ed. 
297,   31   S.   Ct.   265. 

Subject  to  exercise  of  the  powers 
granted  to  congress, — The  right  to  make 


contracts  is  subject  to  the  exercise  of  the 
powers  granted  to  congress  for  the  suit- 
able conduct  of  matters  of  national  con- 
cern; as,  for  example,  the  regulation  of 
commerce  with  foreign  nations  and  among 
the  several  states.  Chicago,  etc.,  R.  Co. 
V.  McGuire,  219  U.  S.  549,  55  L.  Ed.  328,. 
31  S.  Ct.  259;  Addyston  Pipe,  etc.,  Co.  v. 
United  States,  175  U.  S.  211,  231,  44  L. 
Ed.  136,  20  S.  Ct.  96;  Patterson  v.  Bank 
Eudora,  190  U.  S.  169,  176,  47  L.  Ed.  1002, 
23  S.  Ct.  821;  Atlantic,  etc.,  R.  Co.  v. 
Riverside  Mills,  219  U.  S.  186,  55  L.  Ed. 
167,  31  S.  Ct.  164;  Louisville,  etc.,  R.  Co. 
V.  Mottley,  219  U.  S.  467,  55  L.  Ed.  297, 
31   S.   Ct.  265. 

As  to  the  power  of  congress  to  prohibit 
contracts  for  rebates,  reduced  rates,  con- 
tracts waiting  the  right  to  one  for  dam- 
ages for  personal  injuries  received  while 
in  the  employment  of  interstate  carriers, 
etc.,  see  post,  INTERSTATE  AND 
FOREIGN  COMMERCE. 

Limitations  in  the  field  of  state  action. 
— In  the  field  of  state  action,  the  liberty 
of  contract  is  subject  to  the  essential  au- 
tliority  of  government  to  maintain  peace 
and  security,  and  to  enact  laws  for  the 
promotion  of  the  health,  safety,  morals, 
and  welfare  of  those  sjibject  to  its  juris- 
diction, so  that  the  state  may,  without 
conflicting  with  the  provisions  of  the  four- 
teenth amendment,  restrict  in  many  re- 
spects the  individual's  power  to  contract. 
Chicago,  etc.,  R.  Co.  v.  McGuire,  219  U. 
S.  549,  55  L.  Ed.  328,  31  S.  Ct.  259;  Muller 
7'.  Oregon,  208  U.  S.  412,  52  L.  Ed.  551,  28 
S.  Ct.  324;  Williams  v.  Arkansas,  217  U. 
S.  79.  54  L.  Ed.  673,  30  S.  Ct.  493;  McLean 
V.  Arkansas,  211  U.  S.  539,  545,  53  L.  Ed. 
315,  29  S.  Ct.  206;  Brodnax  v.  Missouri, 
219  U.  S.  285,  55  L.  Ed.  219,  31  S.  Ct.  238; 
German  Alliance  Ins.  Co.  7'.  Hale,  219  U. 
S.  307,  55  L.  Ed.  229,  31  S.  Ct.  246;  Bailey 
7.  Alabama,  211  U.  S.  452,  53  L.  Ed.  278, 
29  S.  Ct.  141;  Grenada  Lumber  Co.  v.  Mis- 
sissippi. 217  U.  S.  433,  54  L.  Ed.  826,  30 
S.  Ct.  535:  House  v.  Mayes,  219  U.  S.  270, 
55  L.  Ed.  213,  31   S.  Ct.  234. 

It  is  the  established  doctrine  of  the  fed- 
eral supreme  court  that  the  liberty  of  con- 
tract is  not  imiversal,  and  is  subject  to 
restrictions  passed  by  the  legislative 
branch  of  the  government  in  the  exercise 
of  its  power  to  protect  the  safety,  health, 
and  welfare  of  the  people.  McLean  v.  Ar- 
kansas, 211  U.  S.  539,  53  L.  Ed.  315,  29  S. 
Ct.  206. 

Same — Restricting  liberty  of  contract  in 
the  regulation  of  business,  trade,  etc. — See, 
-enerally,  post,  POLICE  POWER. 

The  federal  constitution  does  not  con- 
fer a  liberty  of  contract  to  disregard 
regulations  as  to  the  conduct  of  business- 


492 


Vol.  V. 


DUB  PROCESS  OF  LAW. 


557 


which  the  state  lawfully  establishes  for 
all  within  its  jurisdiction.  Brodnax  v. 
Missouri,  219  U.  S.  285,  55  L.  Ed.  219,  31 
S.    Ct.   238. 

When  the  right  to  contract  or  carry  on 
business  conflicts  with  laws  declaring  the 
public  policy  of  the  state,  enacted  for  the 
protection  of  the  public  health,  safety,  or 
welfare,  the  same  may  be  valid,  notwith- 
standing they  have  the  efifect  to  curtail 
or  limit  the  freedom  of  contract.  McLean 
V.  Arkansas,  211  U.  S.  539,  53  L.  Ed.  315, 
29   S.   Ct.  206. 

Whatever  "liberty  of  contract"  a  cor- 
poration may  have  must  be  exercised  in 
subordination  to  any  valid  regulations  the 
state  may  prescribe  for  the  conduct  of 
their  business.  German  Alliance  Ins.  Co 
V.  Hale,  219  U.  S.  307,  55  L.  Ed.  229,  31 
S.   Ct.  246. 

Same — Same — Power  to  prohibit  con- 
tracts designed  to  modify  or  waive  re- 
strictions imposed. — See,  also,  post,  IN- 
TERSTATE AND  FOREIGN  COM- 
MERCE; POLICE  POWER. 

It  is  well  established  that,  so  far  as  its 
regulations  are  valid,  not  being  arbitrary 
or  unrelated  to  a  proper  purpose,  the 
legislature  undoubtedly  may  prevent  them 
from  being  nullified  by  prohibiting  con- 
tracts which,  by  modification  or  waiver, 
would  alter  or  impair  the  obligation  im- 
posed. Chicago,  etc.,  R.  Co.  v.  McGuire, 
219  U.  S.  549,  55  L.  Ed.  328,  31  S.  Ct.  259. 

As  was  pointed  out  in  Holden  v. 
Hardy,  169  U.  S.  366,  42  L.  Ed.  780,  18 
S.  Ct.  383:  "The  legislature  has  also 
recognized  the  fact,  which  the  experience 
of  legislators  in  inany  states  has  corrobo- 
rated, that  the  proprietors  of  these  estab- 
lishments and  their  operatives  do  not 
stand  upon  an  equality,  and  that  their 
interests  are,  to  a  certain  extent,  con- 
flicting. The  former  naturally  desire  to 
obtain  as  much  labor  as  possible  from 
their  employees,  while  the  latter  are  often 
induced  by  the  fear  of  discharge  to  con- 
form to  regulations  which  their  judg- 
ment, fairly  exercised,  would  pronounce 
to  be  detrimental  to  their  health  or 
strength.  In  other  words,  the  proprie- 
tors lay  down  the  rules  and  the  laborers 
are  practically  constrained  to  obey  them. 
In  such  cases  self-interest  is  often  an  un- 
safe guide,  and  the  legislature  may  prop- 
erly interpose  its  authority.  *  *  *  But 
the  facts  that  both  parties  are  of  full  age 
and  competent  to  contract  does  not 
necessarily  deprive  the  state  of  the 
power  to  interfere  where  the  parties  do 
not  stand  upon  an  equality,  or  where  the 
public  health  demands  one  part}^  to  the 
contract  shall  be  protected  against  him- 
self. 'The  state  still  retains  an  interest 
in  his  welfare,  however  reckless  he  may 
be.  The  whole  is  no  greater  than  the 
sum  of  all  the  parties,  and  when  the  in- 
dividual health,   safety,   and    welfare     are 


sacrificed  or  neglected,  the  state  must 
sufifer.'"  Chicago,  etc.,  R.  Co.  v.  Mc- 
Guire, 219  U.  S.  549,  55  L.  Ed.  328,  31  S 
Ct.   259. 

In  the  cases  within  its  purview  it  ex- 
tended the  liability  of  the  common  law  by 
abolishing  the  fellow-servant  rule.  Hav- 
ing authority  to  establish  this  regulation, 
it  is  manifest  that  the  legislature  was  also 
entitled  to  insure  its  efficacy  by  prohibit- 
ing contracts  in  derogation  of  its  pro- 
visions. In  the  exercise  of  this  pov/er, 
the  legislature  was  not  limited  with  re- 
spect either  to  the  form  of  the  con- 
tract, or  the  nature  of  the  considera- 
tion, or  the  absolute  or  conditional  char- 
acter of  the  engagement.  It  was  as 
competent  to  prohibit  contracts  which, 
on  a  specified  event,  or  in  a  given  con- 
tingency, should  operate  to  relieve  the 
corporation  from  the  statutory  liability 
which  would  otherwise  exist,  as  it  was  to 
deny  validity  to  agreements  of  absolute 
waiver.  Chicago,  etc.,  R.  Co.  v.  McGuire, 
219  U.  S.  549,  55  L.  Ed.  328,  31  S.  Ct.  259. 

The  freedom  of  contract  is  not  uncon- 
stitutionally infringed  by  amending  the 
provisions  of  Code  Iowa,  §  2071,  whjch 
define  the  liability  of  railway  corporations 
for  injuries  resulting  from  negligence  and 
mismanagement  in  the  use  and  operation 
of  their  railways,  so  that  a  railway  com- 
pany, when  sued  on  such  liability,  is 
precluded  from  making  the  defense  that 
a  recovery  is  barred  by  the  acceptance  of 
benefits  under  a  contract  of  membership 
m  its  relief  department.  Chicago,  etc.,  R. 
Co.  V.  McGuire,  219  U.  S.  549,  55  L.  Ed. 
328,  31  S.  Ct.  259,  affirming  McGuire  v. 
Chicago,  etc.,  R.  Co.,  138  Iowa,  664,  116 
N.  W.   801. 

Limitations  upon  power  to  restrain  the 
freedom  of  contract. — See,  also,  post,  PO- 
LICE POWER. 

The  principle  involved  in  these  de- 
cisions is  that  where  the  legislative  action 
is  arbitrary  and  has  no  reasonable  rela- 
tion to  a  purpose  which  it  is  competent 
for  government  to  effect,  the  legislature 
transcends  the  limits  of  its  power  in  in- 
terfering with  liberty  of  contract;  but 
where  there  is  reasonable  relation  to  an 
object  within  the  governmental  authority, 
the  exercise  of  the  legislative  discretion 
is  not  subject  to  judicial  review.  Chicago, 
etc.,  R.  Co.  V.  McGtiire,  219  U.  S.  549,  55 
L.    Ed.    328,   31    S.    Ct.    259. 

There  mtist,  indeed,  be  a  certain  free- 
dom of  contract,  and,  as  there  can  not  be 
a  precise,  verbal  expression  of  the  limita- 
tions of  it,  arguments  against  any  par- 
ticular limitation  may  have  plausible 
strength,  and  yet  many  legal  restrictions 
have  been  and  must  be  put  upon  such 
freedom  in  adapting  human  laws  to  hu- 
man conduct  and  necessities.  A  too  pre- 
cise reasoning  should  not  be  exercised, 
and  before  the  federal  supreme  court  may 


493 


557 


DUE  PROCESS  OF  LAW. 


Vol.  V. 


3.  What  Constitutes  a  Deprivation  of  Liberty — i.  Pozver  to  Prescribe 
Qualifications  for  Persons  Desiring  to  Practice  Lazv,  Medicine,  etc. — See  post, 
P01.1CE;  Power. 

m.  Prohibiting  Discharge  of  Employees  Because  Members  of  Labor  Organi- 
sations.— See  ante,  "Definition  and  General  Nature  of  Liberty,"  VI,  C,  L 

n.    Separation  of  the  Races  in  Schools,  Passenger  Trains,  Coaches,  etc. — See 


interfere,  there  must  be  a  clear  case  of 
abuse  of  power.  See  Chicago,  etc.,  R. 
Co.  V.  McGuire,  219  U.  S.  549,  55  L.  Ed. 
328,  31  S.  Ct.  259,  where  the  right  of  con- 
tract and  its  limitation  by  the  legislture 
are  fully  discussed.  Mutual  Loan  Co.  v. 
Martell,  223  U.  S.  225,  56  L.  Ed.  175,  33 
S.    Ct.   74. 

Where  the  subject  to  which  the  stat- 
ute relates  is  clearly  within  the  police 
powers  of  the  state,  the  statute  can  not 
be  held  to  be  repugnant  to  the  due 
process  clause  of  the  fourteenth  amend- 
ment, because  of  the  nature  or  character 
of  the  regulations  which  the  statute  em- 
bodies, unless  it  clearly  appears  that  those 
regulations  are  so  beyond  all  reasonable 
relation  to  the  subject  to  which  they  are 
applied  as  to  amount  to  mere  arbitrary 
usurpation  of  power.  Lemieux  v.  Young, 
211  U.  S.  489,  496,  53  L.  Ed.  295,  29  S.  Ct. 
174;  Booth  V.  Illinois,  184  U.  S.  425,  46  L. 
Ed.  623. 

The  legislature,  being  familiar  with 
local  conditions,  is  primarily  the  judge  of 
the  necessity  of  police  enactments. 
The  mere  fact  that  a  court  may  differ 
with  the  legislature  in  its  views  of  public 
policy,  or  that  judges  may  hold  views,  in- 
consistent with  the  propriety  of  the 
legislation  in  question,  afifords  no  ground 
for  judicial  interference,  unless  the  act  in 
question  is  unmistakably  and  palpably  in 
excess  of  legislative  power.  Williams  v. 
Arkansas,  217  U.  S.  79,  54  L.  Ed.  673,,  30 
S.  Ct.  493;  Laurel  Hill  Cemetery  v.  San 
Francisco,  216  U.  S.  358,  54  L.  Ed.  515, 
30  S.  Ct.  301;  Jacobson  v.  Massachusetts, 
197  U.   S.  11,  49  L.  Ed.  643,  25  S.  Ct.  358. 

If  there  exists  a  condition  of  affairs 
concerning  which  the  legislature  of  the 
state,  exercising  its  conceded  right  to  en- 
act laws  for  the  protection  of  the  health, 
safety  or  welfare  of  the  people,  might 
pass  the  law,  it  must  be  sustained;  if  such 
action  was  arbitrary  interference  with  the 
right  to  contract  or  carry  on  business,  and 
having  no  just  relation  to  the  protection 
of  the  public  within  the  scope  of  legisla- 
tive power,  the  act  must  fail.  McLean  v. 
Arkansas,  211  U.  S.  539,  548,  53  L.  Ed. 
315,  29   S.   Ct.  206. 

Applications  of  principle. — See,  also, 
post,  POLICE  POWER. 

Contracts  made  with  intent  to  defraud. 
— When  an  individual  contracts  with 
the  intention  of  perpetrating  a  fraud,  he 
is  not  within  the  constitutional  guaranty 
of  the  free  right  to  contract,  and  the  leg- 


islature may  render  his  act  a  crime. 
Bailey  v.  State,  48  So.  498,  judgment  af- 
firmed. Bailey  v.  Alabama,  211  U.  S.  452, 
53   L.   Ed.   278,  29   S.   Ct.  141. 

The  plaintiff  in  error  is  held  on  a 
charge  of  having  obtained  money  under 
a  written  contract  with  intent  to  defraud. 
There  is  no  doubt  that  such  conduct  may 
be  made  a  crime.  Bailey  v.  Alabama,  211 
U.   S.  452,  454,  53  L.  Ed.  278,  29  S.  Ct.  141. 

Code  1896,  §  4730,  as  amended  by  Gen. 
Acts  1903,  p.  345,  and  Gen.  Acts  1907,  p. 
636,  providing  an  employee  who,  with  in- 
tent to  defraud,  contracts  in  writing  to 
perform  services  and  receives  money  or 
property,  and,  without  refunding  the  same 
fails  to  perform  such  services,  shall  be 
punished  as  for  larceny  is  not  repugnant 
to  Bill  of  Rights  1901,  §  20,  declaring  that 
no  person  shall  be  imprisoned  for  debt. 
(1909)  Bailey  v.  State,  48  So.  498,  judg- 
ment affirmed.  Bailey  v.  Alabama,  211  U. 
S.   452,  53   L.   Ed.  278,  29  S.   Ct.   141. 

But  see  this  particular  statute  held  un- 
constitutional in  Bailey  v.  Alabama,  219 
U.  S.  219,  55  L.  Ed.  191,  31  S.  Ct.  145. 

Combination  in  restraint  of  trade, — See, 
also,  post,  INTERSTATE  AND  FOR- 
EIGN COMMERCE;  MONOPOLIES 
AND  CORPORATE  TRUSTS;  POLICE 
POWER. 

The  freedom  of  contract  is  not  unrea- 
sonably abridged,  in  violation  of  Const. 
U.  S.  Amend.  14,  by  Code  Miss.,  §  5003, 
which,  as  construed  by  the  state  court, 
condemns  as  a  combination  in  restraint 
of  trade  an  agreement  between  retail  lum- 
ber dealers  not  to  deal  with  any  manu- 
facturer or  wholesale  dealer  who  sells 
direct  to  consumers  in  localities  in  which 
such  retail  dealers  conduct  their  business 
and  keep  a  sufficient  stock  to  meet  de- 
mands, and  to  inform  each  other  of  any 
such  sales.  Grenada  Lumber  Co.  v.  Mis- 
sissippi, 217  U.  S.  433,  54  L.  Ed.  826,  30 
S.  Ct.  535,  affirming  decree.  Retail  Lum- 
ber Dealers'  Ass'n  v.  State  (1909),  48  So. 
]021. 

Prohibiting  discharge  of  employees  be- 
cause members  of  labor  organizations. — 

See  ante,  "Definition  and  General  Nature 
of  Liberty,"  VI,   C,  1. 

In  the  exercise  of  the  power  to  regulate 
commerce. — As  to  contracts  for  rebates, 
reduced  rates,  etc.,  contracts  intended  to 
modify  or  waive  regulations  and  restric- 
tions imposed  by  congress,  see  post,  IN- 
TERSTATE AND  FOREIGN  COM- 
MERCE. 


494 


Vol.  V. 


DUB  PROCESS  OF  LAW. 


564-566 


ante,  Civil  Rights,  p.  236;  Constitutional  Law,  p.  264;  post,  Interstate 
AND  Foreign  Cominierce. 

D.  Property  and  the  Deprivation  Thereof — 1.  What  Is  Prope;rty  within 
the  Meaning  of  the  Due  Process  Clause — b.  Property  and  the  Incidents  of 
Ownership  as  Affected  by  State  Lazv  and  Usage. — See  note  45. 

c.  Property  Devoted  to  Public  Use. — Disposition  of  Property  after  Cessa- 
tion of  Use. — See  note  48. 

e.  Citizenship  as  a  Property  or  Vested  Right. — See  ante.  Constitutional 
Law,  p.  264.  As  to  citizenship  and  property  rights  of  Indians,  see  post,  Indians. 
And  see  post,  "Property  and  Tribal  Rights  of  Indians,"  VI,  D,  1,  s. 

f.  Property  in  Ride  or  Policy  of  Law. — See  ante.  Constitutional  Law,  p. 
264.  As  to  rule  or  policy  of  law  restricting  the  right  to  import  certain  articles 
of  commerce,  see  post,  "In  the  Exercise  of  the  Power  to  Regulate  Foreign  Com- 
merce," VI,  D,  2,  b,  (4),  (b)4).  See,  also,  post,  Interstate  and  Foreign  Com- 
merce. 

g.  Property  Right  in  Public  Office. — As  to  private  property  in  public  office 
lawfully  purchased  in  Porto  Rico  or  the  Philippines  prior  to  their  cession  to  the 
United  States,  see  ante.  Constitutional  Law,  p.  264;  post.  Impairment  of 
Obligation  of  Contracts;  Public  Officers. 

i.   Interest  or  Estate  in  Profession  or  Occupation. — See  post.  Police  Power. 
j.    Right  to  Devise,  Bequeath  or  Inherit  Property;  Inheritance  Taxes. — See, 
generally,  ante.  Constitutional  Law,  p.  264.     See,  also,  note  50a. 


564-45.  Property  and  incidents  of  own- 
ership as  determined  by  state  law. — The 

legal  incidents  of  estates  in  real  property, 
as  for  example,  whether  the  taxes  upon 
property  are  to  be  paid  by  the  tenant  of 
the  particular  estate  or  by  the  owner  of 
the  reversion,  is  a  question  to  be  de- 
termined by  the  state.  Therefore,  the 
decision  of  the  state  court  that  the  gen- 
eral rule  making  the  landlord  responsible 
for  the  taxes  has  no  application  to  the 
case  of  a  perpetual  leaseholder  where  the 
tenant  is,  in  effect,  the  virtual  owner  of 
the  property  and  entitled  to  its  use  for- 
ever, presents  no  federal  question  which 
can  be  reviewed  by  the  federal  supreme 
court  on  writ  of  error.  Perry  Co.  v.  Nor- 
folk, 220  U.  S.  472,  55  L.  Ed.  548,  31  S.  Ct. 
465. 

But  where  such  a  leaseholder  claims  a 
contract  exemption  as  to  certain  taxes,  . 
and  the  claim  is  made  that  the  obligation 
of  such  contracts  is  impaired  by  attempt- 
ing to  subject  the  property  to  certain 
taxes  claimed  to  be  within  the  exemption 
of  the  contract,  a  federal  question  does 
arise,  and  the  federal  supreme  court  will 
examine  the  contract  for  itself  in  order 
to  determine  whether  the  taxes  in  ques- 
tion are  embraced  within  the  exemption 
conferred  by  tlie  contract.  Perry  Co.  v. 
Norfolk,  220  U.  S.  472,  55  L.  Ed.  548,  31 
S.  Ct.  465. 

Rights  under  corporate  charters  as  de- 
termined by  state  law. — See  post,  "Rights 
under  Corporate  Charters,"  VI,  D,  1,  n. 
And  see  ante,  CONSTITUTIONAL 
LAW,  p.  264;  CORPORATIONS,  p.  381. 

Right  to  devise,  bequeath  or  inherit 
property  as  determined  by    state    law. — 


See  post,  "Right  to  Devise,  Bequeath,  or 
Inherit  Property— Inheritance  Taxes,"  VI, 
D,  1.  j.  See,  also,  ante,  CONSTITU- 
TIONAL LAW,  p.  264. 

566-48.  Disposition  of  property  after 
cessation  of  use.— The  mere  fact  that  a 
contract  may  extend  beyond  the  term  of 
the  life  of  a  corporation  does  not  destroy 
it.  This  principle  was  recognized  by  the 
federal  supreme  court  in  Detroit  v.  De- 
troit, etc.,  St.  R.  Co.,  184  U.  S.  368,  46  L. 
Ed.  592,  22  S.  Ct.  410,  in  which  it  was  held 
that  city  ordinance  granting  the  use  of 
the  streets  of  the  city  for  a  term  which 
would  extend  the  grant  for  sixteen  years 
beyond  the  life  of  the  corporation  did  not 
invalidate  it.  It  was  held  that  the  limi- 
tation upon  the  corporate  life  of  the  com- 
pany did  not  prevent  it  from  taking  fran- 
chises, or  other  property,  the  title  t-i 
which  would  not  expire  with  the  corpora- 
tion itself;  and  further,  that,  at  the  end 
of  its  corporate  life,  if  such  property  were 
still  in  existence,  it  would  be  an  asset 
divisible  among  the  shareholders  after  the 
payment  of  the  debts,  or  it  might,  if  as- 
signable, be  transferred  to  any  other  per- 
son or  company  competent  to  hold  it. 
Minneapolis  v.  Minneapolis  St.  R.  Co., 
215  U.  S.  417,  54  L.  Ed.  259,  30  S.  Ct.  118. 
See,  also,  post,  IMPAIRMENT  OF 
OBLIGATION  OF  CONTRACTS. 

566-50a.  Right  to  devise,  bequeath  or 
inherit  property  —  Inheritance  taxes — 
Right  of  heirs  to  notice  upon  foreclosure 
of  mortgage  against  estate  of  ancestor. — 
Whatever  title  heirs  may  take  upon  the 
death  of  their  ancestor,  they  take  by  vir- 
tue of  the  state  law,  and  it  is  for  the 
courts   of  the  state  to  interpret  that  law 


495 


567 


DUE  PROCESS  OF  LAW. 


Vol.  V. 


k.  Property  Rights  Jure  Maritii. — See,  generally,  post,  Husband  and  Wife. 
As  to  the  interest  of  the  surviving  wife  or  husband  in  the  community  estate  and 
the  liability  of  the  same  to  taxation,  see  ante,  Constitutional  Law,  p.  264. 

1.  Contract  Rights. — See,  generally,  post,  Impairment  of  Obligation  of 
Contracts.  See,  also,  ante,  "Definition  and  General  Nature  of  Liberty,"  VI,  C, 
1 ;  "Limitations  of  the  Liberty  of  Contract,"  VI,  C,  2,  c.  As  to  the  power  of 
congress  to  prohibit  the  making,  or  carrying  out  if  already  made,  of  contracts 
for  rebates  or  reduced  rates,  or  contracts  modifying  or  waiving  the  provisions 
intended  for  the  benefit  of  shippers  or  servants  of  interstate  carriers,  see  post, 
Interstate  and  Foreign  Commerce. 

n.  Rights  under  Corporate  Charters. — No  matter  what  may  be  the  general 
rights  of  corporate  property,  it  can  not  be  denied  that  a  state  granting  a  charter 
may  strictly  define  and  limit  the  uses  of  the  property  necessary  to  the  exercise 
of  the  powers  granted. "^^ 


and  define  that  title.  It  is  for  the  courts 
of  the  state  to  say  whether  the  state  law 
has  cast  upon  them  such  a  title  to  mort- 
gaged property  as  to  require  that  they 
should  be  made  parties  to  a  foreclosure 
procedure  against  the  personal  represent- 
ative and  be  given  notice  and  oppor- 
tunity to  be  heard,  and  their  decision  that 
they  acquired  no  such  title  or  estate  will 
not  be  reviewed  by  the  federal  supreme 
court.  McCaughey  v.  Lyall,  224  U.  S.  558, 
56  L.  Ed.  883,  32  S.  Ct.  602. 

Construing  Cal.  Code  Civ.  Proc,  §  1582, 
to  mean  that  the  heirs  are  not  necessary 
parties  to  a  suit  against  the  administratrix 
to  foreclose  a  mortgage  executed  by  the 
decedent,  does  not  deprive  such  heirs, 
without  due  process  of  law,  of  the  title 
which  Cal.  Civ.  Code,  §  1384,  casts  upon 
them  upon  the  death  of  their  ancestor. 
McCaughey  z:  Lyall,  224  U.  S.  558,  56  L. 
Ed.  883,  32   S.   Ct.  602. 

567-52a.  Rights  under  corporate  char- 
ters.— Fifth  Ave.  Coach  Co.  v.  New 
York,  221  U.  S.  467,  55  L.  Ed.  815,  31  S. 
Ct.  709.  See,  generally,  ante,  CONSTI- 
TUTIONx\L  LAW,  p.  264;  CORPORA- 
TIONS, p.  381;  post,  IMPAIRMENT  OF 
OBLIGATION  OF  CONTRACTS. 

Corporate  right  of  stage  coach  com- 
pany to  display  advertisements  in  or  upon 
coaches  used  on  certain  streets. — In  de- 
termining, therefore,  whether  a  stage 
company  is  deprived  of  its  property  with- 
out due  process  of  law  by  the  enforce- 
ment of  a  municipal  ordinance  which  pro- 
hibits such  companies  from  displaying  for 
hire  advertisements  upon  its  stages  and 
coaches  upon  certain  streets  in  the  city, 
the  question  as  to  what  use  under  its 
charter  such  company  may  ernploy  its 
property  necessary  to  the  exercise  of  the 
powers  conferred  by  the  charter,  is  a 
question  of  state  law  to  be  determined  by 
the  state  court.  Fifth  Ave.  Coach  Co.  v. 
New  York,  221  U.  S.  467,  55  L.  Ed.  815,  31 
S.  Ct.  709. 

A  municipal  ordinance  prohibiting  the 
use  of  advertising  trucks,  vans,  or  wagons 


in  the  city  streets  does  not  deprive  a 
stage  coach  company  of  its  property  with- 
out due  process  of  law.  Fifth  Ave. 
Co.  V.  New  York,  221  U.  S.  467, 
55  L.  Ed.  815,  31  S.  Ct.  709,  affirming  de- 
cree (1909),  86  N.  E.  824,  194  N.  Y.  19, 
21  L.  R.  A.  (N.  S.),  744,  16  A.  &  E.  Ann. 
Cas.  695,  which"  aftirms  (1908),  110  N.  Y. 
S.   1037,  which   afiirms  111   N.  Y.   S.  759. 

Corporate  right  to  teach  mixed  school 
— Separation  of  the  races. — A  corporation 
has  no  property  or  inherent  right  to 
engage  in  the  business  of  teaching,  nor 
any  right  of  this  character  whatever,  ex- 
cept such  as  may  be  conferred  by  the 
state;  and  as  against  a  reserved  right  to 
alter  or  amend  its  charter,  a  corporation 
engaged  in  the  business  of  conducting  a 
school  has  no  vested  or  inherent  right  to 
conduct  a  mixed  school  for  whites  and 
negroes.  Berea  College  v.  Common- 
wealth, 211  U.  S.  45,  53  L.  Ed.  81,  29  S. 
Ct.  33. 

The  prohibition  against  teaching  white 
and  negro  pupils  in  the  same  institution, 
which  is  made  by  Acts  Ky.  1904,  p.  181,  c. 
85,  does  not,  when  applied  to  a  corpora- 
tion as  to  which  the  state  has  reserved 
the  power  to  alter,  amend,  or  repeal  its 
charter,  deny  due  process  of  law,  or  other- 
wise violate  the  federal  constitution. 
Judgment  (1906),  94  S.  W.  623,  123  Ky. 
209,  affirmed.  Berea  College  v.  Common- 
wealth, 211  U.  S.  45,  53  L.  Ed.  81,  29  S. 
Ct.  33.  See,  also,  ante.  CIVIL  RIGHTS, 
p.  264. 

Revocation  of  charter  for  violation  of 
law. — Due  process  of  law  is  not  denied  a 
social  club  bv  the  revocation  of  its  charter, 
which,  under  Va.  Act  of  March  12,  1904, 
automatically  followed  a  judgment  of  a 
court  of  competent  jurisdiction,  rendered 
with  all  the  parties  before  it,  after  giving 
full  opportunity  to  be  heard,  that  such 
club  was  being  conducted  for  the  purpose 
of  violating  and  evading  the  laws  of  the 
state  regulating  the  licensing  and  sale  of 
liquor.  Cosmopolitan  Club  v.  Common- 
wealth, 208  U.  S.  378,  52  L.  Ed.  536,  28  S. 
Ct.  394. 


496 


Vol.  V.  DUE  PROCESS  OF  LAW.  569-570 

o.  Franchises  as  Property. — See  ante,  Constitutional  Law,  p.  264;  Cor- 
porations, p.  381;  post,  Impairment  of  Obligation  of  Contracts;  Munic- 
ipal Corporations;  Policf  PowFr.  See,  also,  such  special  titles,  post,  as 
Gas;  Telegraphs  and  Telephones;  Water  Companies  and  Waterworks. 

p.  The  Term  Property  as  Applied  to  Lands — (4)  Rights  of  Riparian  Onmers. 
— See  post,  "Rights  of  Riparian  Owners,"  VI,  D,  2,  b,  (4),  (q). 

(5)  Subterranean  Waters. — See  post,  "Natural  Gas  and  Oil,"  VI,  D,  1,  p,  (6). 

(6)  Natural  Gas  and  Oil. — See  note  62. 

(8)  Remainders,  Reversions,  Executory  Limitations,  etc. — See,  generally, 
post.  Remainders,  Reversions,  and  Executory  Interests.  As  to  the  right  to 
create  such  technical  and  artificial  estates,  see  ante.  Constitutional  Law,  p. 
264. 

(9)  Easements,  Right  of  JVay,  etc. — A  private  right  of  way  is  an  easement 
and  is  land  for  which  an  action  ex  contractu  against  the  United  States  will  lie 
when  such  right  of  way  is  destroyed  by  the  flooding  of  land  actually  taken  by 
the  government  in  the  construction  of  a  dam.  The  same  reasoning  which  allows 
a  recovery  for  the  taking  of  land  by  permanent  occupation  allows  it  for  a  right 
of  way  taken  in  the  same  manner;  and  the  value  of  the  easement  can  not  be  de- 
termined without  reference  to  the  dominant  estate  to  which  it  is  attached.*^^^ 

Doctrine  as  to  Destruction  of  Public  Way  Not  Applicable. — In  such  a 
case  the  doctrine  which  forbids  compensation  for  the  taking  or  destruction  of  a 
public  way  or  public  watercourse  has  no  application,  since  in  such  case  the  plain- 
tiff has  no  private  rights,  and  such  rights  as  he  has  are  subject  to  the  superior 
public  rights,  and  his  damage,  though  greater  in  degree  than  that  of  the  rest  of 
the  public,  is  the  same  in  kind.*^^'' 

(  10 )  Indian  Lands. — See  post,  Indians.  See,  also,  post,  "Property  and 
Tribal  Rights  of  Indians,"  VI,  D,  1,  s. 

•  s.  Property  and  Tribal  Rights  of  Indians. — There  are  many  cases  recognizing 
that  the  plenary  power  of  congress  over  the  Indian  Tribes  and  tribal  property 
can  not  be  limited  by  treaties  so  as  to  prevent  repeal  or  amendment  by  a  later 
statute.  The  tribes  have  been  regarded  as  dependent  nations,  and  treaties  with 
them  have  been  looked  upon  not  as  contracts,  but  as  public  laws  which  could  be 
abrogated  at  the  will  of  the  United  States.^-*^ 

569-62.     Natural   gas   and   oil. — A   land-  570-64a.     Property  and  tribal  rights  of 

owner  engaged  in  collecting  and  vending  Indians. — Choate  v.  Trapp,  224  U.  S.  665. 

as  a  separate  commodity  the  carbonic  acid  56  L.  Ed.  941,  32  S.  Ct.  565,  citing  Thomas 

gas    contained   in    natural    mineral   waters  v.  Gay,  169  U.  S.  264,  271,  42  L.  Ed.  740,  18 

existing  in  a  common  underground  reser-  S.  Ct.    340;  Lone    Wolf  v.    Hitchcock,    187 

voir  is  not  deprived  of  his  property  with-  U.  S.  553,  565,  47  L.  Ed.  299,  306,  23  S.  Ct. 

out  due  process  of  law,  contrary  to  Const.  216;  Gleason  v.  Wood,  224  U.  S.  679,  56  L. 

U.    S.    Ameiiu.    14,    by    the    provisions    of  Ed.  947.  32  S.  Ct.  571.     See,  also,  post,  IN- 

Laws    N.    Y.    1908,    c.    429,    which,  as   con-  DIAXS. 

strued  by  the  state  courts,  forbid  him  from  Admitting  newly  born  members  to  share 

pumping  or  otherwise  artificially  dravving,  in  allotment. — Vested    rights  of    members 

by  means  of  wells  on  his  properly,  unnat-  of  the  Cherokee  tribe  living  on  September 

ural    quantities    of    such    waters  from    the  1,  1902,  and  enrolled  under  the  Act  or  July 

common    source  of    supply,    and    wasting  1,  1902,  to  participate  in  the  allotment  and 

them   to  the   injury  or  impairment   of  the  distribution  of  the  remaining  tribal  lands 

rights   of   other   proprietors.      Lindsley   v.  and     funds,     were     not     destroyed,     their 

Natural  Carbonic  Gas  Co.,  220  U.  S.  61,  55  individual    allotments    not    being   affected, 

L.   Ed.  369,  31   S.  Ct.  337,  affirming  decree  by    the    provision    of  the  Act    of  April  26, 

(C.  C.  1909),  170  F.    1023.  1906,  §  2,  as  amended  by  the  Act  of  June 

570-63a.  Easement,  right  of  way,  etc. — •  21,  1906,  for  a'dmitting  newly  born  mem- 
United  States  V.  Welch.  217  U.  S.  333,  54  bers  of  the  tribe  to  the  allotment  and  dis- 
L.  Ed.  787,  30  S.  Ct.  527.  tribution  from  which  they  were  excluded 

570-63b.     Doctrine  as  to  destruction  of  by  the  earlier  act  if  born  after  September 

public  way  not  applicable. — United  States  1,  1902.     Gritts  v.  Fisher,  224  U.  S.  640,  56 

V.  Welch,  217  U.  S.  333,  54  L.   Ed.  787,  30  L.  Ed.  928,  32  S.  Ct.  580. 
S.  Ct.  527.  The  difficulty  with  the  appellant's  con- 

12   U    S    Enc— 32  497 


570 


DUB  PROCESS  OF  LAW. 


Vol.  V. 


Distinction  between  Private  and  Tribal  Property. — But  there  is  a  broad 
distinction  between  tribal  property  and  private  property,  and  between  the  power 
to  abrogate  a  statute  or  treaty  and  the  authority  to  destroy  rights  acquired  under 
such  law.  There  may  have  been  comparatively  few  cases  which  discuss  the  legis- 
lative power  over  private  property  held  by  the  Indians.  But  those  few  all  recog- 
nize that  he  is  not  excepted  from  the  protection  guaranteed  by  the  constitution. 
His  private  rights  are  secured  to  the  same  extent  and  in  the  same  way  as  other 
residents  or  citizens  of  the  United  States.**^^ 


tention  is  that  it  treats  the  Act  of  1902  as 
a  contract,  when  "it  is  only  an  act  of  con- 
gress, and  can  have  no  greater  effect." 
Cherokee  Intermarriage  Cases,  203  U.  S. 
76,  93,  51  h.  Ed.  96,  27  S.  Ct.  29.  It  was 
but  an  exertion  of  the  administrative  con- 
trol of  the  government  over  the  tribal 
property  of  tribal  Indians,  and  was  sub- 
ject to  change  by  congress  at  any  time  be- 
fore it  was  carried  into  effect  and  while 
the  tribal  relations  continued.  Stephens 
V.  Cherokee  Nation,  174  U.  S.  445,  488,  43 
L.  Ed.  1041,  19  S.  Ct.  722;  Cherokee  Na- 
tion V.  Hitchcock,  187  U.  S.  294,  47  L.  Ed. 
183,  23  S.  Ct.  115;  Wallace  v.  Adams,  204 
U.  S.  415,  423,  51  E.  Ed.  547,  27  S.  Ct.  363; 
Gritts  V.  Fisher,  234  U.  S.  640,  56  L.  Ed. 
928,  32  S.  Ct.  580. 

570-64b.  Distinction  between  private 
and  tribal  property. — Choate  v.  Trapp,  224 
U.  S.  665,  56  L.  Ed.  941,  32  S.  Ct.  565; 
Gleason  v.  Wood,  224  U.  S.  679,  56  L.  Ed. 
947,  32  S.  Ct.  571;  Matter  of  Heff,  197  U.  S. 
488,  504,  49  L.  Ed.  848,  25  S.  Ct.  506;  Cher- 
okee Nation  v.  Hitchcock.  187  U.  S.  294, 
307,  47  L.  Ed.  383,  23  S.  Ct.  115;  Reichart 
V.  Felps,  6  Wall.  160,  18  L.  Ed.  849. 

For  example,  where  the  Indians,  as  in- 
dividuals, have  acquired  vested  property 
rights,  or  a  vested  right  to  an  exemption 
from  taxation,  uhder  a  treatj^  entered  into 
by  their  tribe  and  under  the  acts  of  con- 
gress enacted  pursuant  thereto,  such 
rights  are  entitled  to  the  protection  of  the 
constitutional  guaranties  of  property  the 
same  as  those  of  citizens  of  the  states  or 
of  the  United  States.  Choate  v.  Trapp, 
224  U.  S.  665.  56  L.  Ed.  941,  32  S.  Ct.  565. 
See,  also,  English  v.  Richardson,  224  U. 
S.  680,_  56  L.  Ed.  949,  32  S.  Ct.  571. 

Arbitrarily  striking  names  from  rolls — 
Mandamus  to  compel  restoration. — Since 
Marbury  v.  Madison,  1  Cranch,  137,  it  has 
been  held  that  there  is  a  distinction  be- 
tween those  acts  which  require  the  exer- 
cise of  discretion  or  judgment  and  those 
which  are  purely  ministerial,  or  are  under- 
taken entirely  without  authority,  which 
may  become  the  subject  of  review  in  the 
courts.  Garfield  v.  Goldsby,  211  U.  S.  249, 
261,  53  L.  Ed.  168,  29  S.  Ct.  ^62,  citing  Gar- 
field V.  Allison,  211  U.  S.  264,  53  L.  Ed. 
176,  29  S.  Ct.  67. 

Where,  therefore,  pursuant  to  the  act  of 
congress,  the  name  of  an  Indian  has  been 
certified  by  the  Dawes  commission  to  the 
secretary  of  the  interior  as  one  found  by 


the  commission  to  be  entitled  to  enroll- 
ment for  distribution,  and  such  list  has 
been  approved  by  the  secretary  of  the  in- 
terior and  the  roll  made  up  and  distribu- 
ted, as  required  by  statute,  the  land  al- 
lotted, and  a  certificate  therefor  awarded 
to  such  enrolled  Indian,  as  provided  by 
Act,  §  23,  July  1,  1902,  such  Indian  has  ac- 
quired a  valuable  property  right,  and  the 
secretary  of  the  interior  has  no  power  or 
authority  to  strike  down,  without  notice 
and  hearing,  the  rights  thus  acquired  by 
striking  such  a  name  from  the  rolls.  Such 
action  is  without  due  process  of  law  and 
mandamus  will  lie  to  compel  restoration 
of  the  name.  Garfield  v.  Goldsby,  211  U. 
S.  249,  53  L.  Ed.  168,  29  S.  Ct.  62;  Garfield 
V.  Allison,  211  U.  S.  264,  53  L.  Ed.  176,  29 
S.  Ct.  67. 

Where,  under  the  provisions  of  acts  of 
congress,  and  after  a  hearing,  the  names 
of  relators  were  duly  entered  as  Creek 
freedmen  by  blood  on  the  rolls  made  and 
approved  by  the  secretary  of  the  interior, 
rights  were  acquired  of  which  the  freed- 
men could  not  be  deprived  without  that 
character  of  notice  and  opportunity  to  be 
heard  essential  to  due  process  of  law. 
Turner  v.  Fisher,  222  U.  S.  204,  56  L.  Ed. 
165,  32  S.  Ct.  37;  Garfield  v.  Goldsby,  211 
U.  S.  249,  53  L.  Ed.  168,  29  S.  Ct.  62. 

"As  has  been  affirmed  by  this  court  in 
former  decisions  there  is  no  place  in  our 
constitutional  system  for  the  exercise  of 
arbitrary  power,  and  if  the  secretary  of 
the  interior,  in  striking  from  the  roll  In- 
dians found  by  the  Dawes  commission  to 
be  entitled  to  distribution  has  exceeded 
the  authority  conferred  upon  him  by  law, 
then  there  is  power  in  the  courts  to  re- 
store the  status  of  the  parties  aggrieved 
by  such  unwarranted  action."  Garfield  v. 
Goldsby,  211  U.  S.  249,  262,  53  L.  Ed.  168, 
29  S.  Ct.  62,  citing  Garfield  v.  Allison,  211 
U.   S.  264,  53  L.   Ed.  176,  29   S.   Ct.  67. 

Same — Notice — 'Sufficiency. — Notice  to 
the  attorney  of  such  freedmen,  given  a 
few  hours  before  the  hearing  of  a  motion 
to  strike  their  names,  on  the  ground  that 
their  enrolment  had  been  secured  by  per- 
jury, was  not  such  notice  as  afforded  due 
process.  Turner  v.  Fisher,  222  U.  S.  204, 
56  L.  Ed.  165,  32  S.  Ct.  37;  Roller  v.  Holly, 
176  U.  S.  398,  409,  44  L.  Ed.  520,  20  S.  Ct. 
410;  Hagar  v.  Reclamation  Dist.  No.  108, 
111  U.  S.  701,  708,  28  L.  Ed.  569,  4  S.  Ct. 
663;  Iowa  Cent.  R.  Co.  v.  Iowa,  160  U.  S. 


498 


Vol.  V. 


DUE  PROCESS  OF  LAW. 


570-573 


t.  Property  in  Photograph. — There  is  no  such  property  right  in  an  existing 
photograph  as  will  defeat  the  right  of  the  state  to  make  it  a  misdemeanor,  pun- 
ishable by  fine  and  imprisonment,  to  use  photographs  of  living  persons  for  ad- 
vertising purposes  without  the  consent  of  such  persons  having  been  first  ob- 
tained.^^'' 

u.  Property  in  Money,  Coin,  Currency,  etc. — As  to  the  constitutionality  of  the 
act  forbidding  the  exportation  of  the  silver  coinage  of  the  Philippines,  see  ante. 
Constitutional  Law,  p.  264. 

2.  Deprwation  of  Property — a.  General  Rules  and  Principles — (5)  A  Ques- 
tion of  Degree;  Delusive  Exactness  Not  Required. — See  ante,  "Mere  Possi- 
bility of  Evil  or  Hardship  in  Particular  Instances  Not  Sufficient  to  Invalidate 
Law,"  II,  C,  6;  "Construed  in  Light  of  Practical  Affairs;  Local  Conditions, 
Habits,  Customs  and  Traditions  of  Particular  Communities,"  V,  F. 

b.  Taking  or  Damaging  Private  Property — (2)  Due  Process  Requires  That 
Compensation  Be  Made  for  Property  Taken — (a)  Generally. — See  note  81. 

(c)  Where  Property  Held  Subject  to  Easement,  Servitude  or  Reserved  Right 
in  Favor  of  State. — See  post,  "Requiring  Public  Service  Companies  to  Bear  Ex- 
pense Incident  to  Abolition  of  Crossings,  Removal  or  Construction  of  Tracks, 
Bridges,  Pipes,  Paving  of  Right  of  Way,  etc.,"  VI,  D,  2,  b,  (4),  (b),  (ii).  See, 
also,  in  this  connection,  as  to  the  uncompensated  removal  of  bridges,  pipes,  tracks, 
etc.,  post.  Police  Power.  See,  also,  as  to  the  subservient  nature  of  the  rights  of 
riparian  owners,  post,  "Rights  of  Riparian  Owners,"  VI,  D,  2,  b,  (4),  (q).  See, 
also,  as  to  the  rights  of  riparian  owners,  post,  Interstate  and  Foreign  Com- 
merce; Navigable  Waters;  Waters  and  Watercourses. 


389.  393,  40  L.  Ed.  467,  16  S.  Ct.  344;  Hovev 
V.  Elliott.  167  U.  S.  409,  414,  43  L.  Ed.  215, 
17  S.  Ct.  841. 

570-64C.  Property  in  photograph. — 
Sperry,  etc.,  Co.  v.  Rhodes,  220  U.  S.  502. 
55  L.  Ed.  561,  31  S.  Ct.  490. 

Property  in  a  photograph  taken  after 
Laws  N.  Y.  1903,  c.  132,  went  into  effect, 
is  not  taken  without  due  process  of  law, 
by  the  provisions  of  that  statute  making 
it  a  misdemeanor  to  use  the  name,  por- 
trait, or  picture  of  any  living  person  for 
advertising  purposes  without  the  written 
consent  of  such  person,  first  obtained,  and 
giving  a  right  of  action  for  damages  to 
the  injured  person.  Sperry,  etc.,  Co.  v. 
Rhodes,  220  U.  S.  502,  55  L.  Ed.  561,  31  S. 
Ct.  490,  affirming  judgment  (1908),  Rhodes 
V.  Sperry  &  Hutchinson  Co.,  85  N.  E.  1097, 
which  affirmed  (1907),  104  N.  Y.  S.  1102, 
120  App.  Div.  467. 

573-81.  No  express  requirement  in  the 
fourteenth  amendment. — That  the  four- 
teenth amendment  of  the  federal  constitu- 
tion forbids  a  state  to  deprive  any  person 
of  property  without  due  process  of  law, 
and  that  to  take  private  property  for  pub- 
lic use  without  compensation  amounts  to 
such  deprivation,  is  recognized  and  af- 
firmed in  a  case  wherein  the  subject  was 
given  much  consideration.  Appleby  v. 
Buffalo,  221  U.  S.  524,  55  L.  Ed.  838,  31  S. 
Ct.  699,  citing  Chicago,  etc.,  R.  Co.  v.  Chi- 
cago, 166  U.  S.  226,  41  L.  Ed.  979.  17  S.  Ct. 
581.  See.  generally,  post,  EMINENT 
DOMAIN. 

Due  process  of  law  as  applied  to  judi- 


cial proceedings  instituted  for  the  taking 
of  private  property  for  public  use  means, 
therefore, _  such  process  as  recognizes  the 
right  of  the  owner  to  be  compensated  if 
his  property  be  wrested  from  him  and 
transferred  to  the  public.  The  mere  form 
of  the  proceeding  instituted  against  the 
owner,  even  if  he  be  admitted  to  defend, 
can  not  convert  the  process  used  into  due 
process  of  law,  if  the  necessarj'  result  be 
to  deprive  him  of  his  property  without 
compensation.  And  furthermore,  a  judg- 
ment of  a  state  court,  even  if  it  be  author- 
ized by  statute,  whereby  private  property 
is  taken  for  the  state,  or  under  its  direc- 
tion for  public  use,  without  compensation 
made  or  secured  to  the  owner,  is.  upon 
principle  and  authority,  wanting  in  the 
due  process  of  law  required  by  the  four- 
teenth amendment  of  the  constitution  of 
the  United  States,  and  the  affirmance 
of  such  judgment  by  the  highest  court  of 
the  state  is  a  denial  by  that  state  of  a 
right  secured  by  that  instrument.  Appleby 
V.  Buffalo,  221  U.  S.  524.  531,  55  L.  Ed.  838, 

31  S*.  Ct.  699. 

The  provision  found  in  the  fifth  amend- 
ment to  the  federal  constitution,  and  in  the 
constitutions  of  the  several  states,  for 
just  compensation  for  the  property  taken, 
is  merely  a  limitation  upon  the  use  of  the 
power.  It  is  no  part  of  the  power  itself, 
but  a  condition  upon  which  the  power  may 
be  exercised.  Cincinnati  v.  Louisville,  etc., 
R.   Co..  223   U.   S.  390,  404,   56   L.   Ed.   481, 

32  S.  Ct.  267. 


499 


575-579 


DUB  PROCESS  OF  LAW. 


Vol.  V. 


(f)  As  to  Amount  and  Measure;  Elements  of  Damage,  etc. — Where  the  state 
court  has  jurisdiction  of  the  subject  matter  and  of  the  parties,  being  under  a  duty 
to  guard  and  protect  the  constitutional  rights  asserted,  the  final  judgment  ought 
not  to  be  held  to  be  in  violation  of  the  due  process  of  law  enjoined  by  the  four- 
teenth amendment,  ^unless  by  its  rulings  upon  questions  of  law  the  company  was 
prevented  from  obtaining  substantially  any  compensation. ^'^^ 

(3)  /^  Distinction  between  Damaging  and  Taking. — See  note  88. 

(4)  What  Constitutes  a  Taking  of  Property — (a)  Generally. — Consequential 
Injuries  Attendant  upon  Exercise  of  Governmental  Power. — See  ante,  "A 
Distinction  between  Damaging  and  Taking,"  VI,  D,  2,  b,  (3). 

Actual  Permanent  Invasion  and  Occupation. — See  note  1. 
(b)  In  the  Exercise  of  the  Police  Power — (aa)  Generally. — See  note  2. 
(bb)  Regulation  of  the    Use  and  Enjoyment  of  Property. — See   post.  Police 
Power. 


575-87a.  As  to  the  amount  and  meas- 
ure of  damages,  elements  of  damage,  etc. 

—Appleby  v.  Buffalo,  221  U.  S.  524,  532,  55 
L.  Ed.  838,  31  S.  Ct.  699,  citing  Marchant 
V.  Pennsylvania  R.  Co.,  153  U.  S.  380,  38 
L.  Ed.  751.  See,  generally,  post,  EMI- 
NENT DOMAIN;  SPECIAL  ASSESS- 
MENTS. 

An  award  of  only  nominal  damages  in 
proceedings  to  acquire  by  eminent  domain 
the  fee  to  lands  under  the  waters  of  a 
navigable  stream  does  not  take  property 
for  public  use  without  compensation,  and 
hence  without  due  process  of  law,  where 
substantially  all  the  land  abutting  upon 
the  stream  on  either  side  had  already  been 
conveyed  away  by  the  owner  of  the  bed, 
and  the  proceedings  were  had  under  a 
statute  providing  adequate  machinery  for 
the  ascertainment  of  compensation  upon 
notice  and  hearing,  and  the  record  dis- 
closes no  ruling  of  law  preventing  just 
compensation  to  the  owner  for  the  prop- 
erty taken.  Appleby  v.  Buffalo,  221  U.  S. 
524,  55  L.  Ed.  838,  31  S.  Ct.  699. 

575-88.  A  distinction  between  damag- 
ing and  taking. — In  the  legal  Tender 
Cases,  the  court,  referring  to  the  fifth 
amendment,  which  forbids  the  taking  of 
private  property  for  public  use  without 
just  compensation  or  due  process  of  law, 
said:  "That  provision  has  always  been 
understood  as  referring  only  to  a  direct 
appropriation,  not  to  consequential  inju- 
ries resulting  from  the  exercise  of  lawful 
power.  It  has  never  been  supposed  to 
have  any  bearing  upon  or  to  inhibit  laws 
that  indirectly  work  harm  and  loss  to 
individuals."  Louisville,  etc.,  R.  Co.  i\ 
Mottley.  219  U.  S.  467,  55  L.  Ed.  297,  31 
S.  Ct.  265. 

For  example,  it  is  competent  for  con- 
gress, without  infringing  the  due  process 
clause  of  the  fifth  amendment,  to  pro- 
hibit the  carrying  out  of  contracts  which, 
though  consistent  with  the  rules  of  law 
obtaining  at  the  time  they  were  made, 
have    become    illegal    by    virtue    of    some 


subsequent  law;  as  in  the  case  of  con- 
tracts for  rebates,  reduced  rates,  etc.  In 
other  words,  it  is  not  competent  for  in- 
dividuals or  corporations,  by  entering 
into  contracts  among  themselves,  to  ham- 
per congress  in  the  exercise  of  its  un- 
doubted powers  by  preventing  it  from 
exercising  them,  except  upon  the  condi- 
tion of  making  compensation  for  the  in- 
cidental losses  arising  from  the  statutory 
inhibition  against  carrying  into  execution 
that  which  was  lawful  at  the  time  the 
contract  was  made.  Louisville,  etc.,  R. 
Co.  V.  Mottley,  219  U.  S.  467,  55  L.  Ed. 
297,  31  S.  Ct.  265.  See,  generally,  as  to 
contracts  of  this  character,  post,  INTER- 
STATE AND  FOREIGN  COMMERCE. 

That  such  laws  are  not  ex  post  facto 
within  the  meaning  of  that  provision  of 
the  federal  constitution,  see  ante,  CON- 
STITUTIONAL LAW,  p.  264. 

578-1.  Actual  permanent  invasion  and 
occupation. — A  private  right  of  way  is 
an  easement  and  is  land  for  which  an  ac- 
tion ex  contractu  against  the  United 
States  will  lie  when  such  right  of  way  is 
destroyed  by  the  flooding  of  land  actu- 
ally taken  by  the  government  in  the  con- 
struction of  a  dam.  The  same  reasoning 
which  allows  a  recovery  for  the  taking 
of  land  by  permanent  occupation  allows 
it  for  a  right  of  way  taken  in  the  same 
manner;  and  the  value  of  the  easement 
can  not  be  determined  without  reference 
to  the  dominant  estate  to  which  it  is  at- 
tached. United  States  v.  Welch.  217  U. 
S.   333,   54  L.    Ed.   787,   30   S.   Ct.   527. 

579-2.  Taking  or  damaging  in  the  ex- 
ercise of  the  police  power. — The  states 
have  power  to  modify  and  cut  down 
property  rights  to  a  certain  limited  extent 
without  compensation,  for  public  pur- 
poses as  a  necessary  incident  of  govern- 
ment, the  power  commonly  called  the 
police  power.  Missouri  Pac.  R.  Co.  v. 
Nebraska,  217  U.  S.  196,  54  L.  Ed.  727, 
30  S.  Ct.  461.  See,  generally,  post,  PO- 
LICE   POWER. 


500 


Vol.  V. 


DUE  PROCESS  OF  LAW. 


582 


(ee)  Summary  Destruction  of  Property  Kept,  Sold  or  Used  in  Violation  of 
Laiv. — See  note  8. 

(ff)  Regulation  or  Suppression  of  Business,  Trade,  Occupation,  etc. — See  ante. 
Constitutional  Law,  p.  264;  Police;  Power. 

{iiVi)  Requiring  Public  Sei'vice  Companies  to  Perform  Duties  at  a  Pecuniary 
Loss. — The  doctrine  tiiat  the  states  have  the  power,  in  the  exercise  of  their  po- 
lice powers,  to  cut  down  property  rights  to  a  certain  limited  extent  without  com- 
pensation, finds  illustration  iil  the  case  of  railroads  and  other  public  service  cor- 
porations which  can  be  required  to  fulfill  the  purposes  for  which  they  are  char- 
tered and  to  do  what  is   reasonably   necessary  to    serve  the  public  in  the   way  in 


582-8.  Summary  destruction  of  prop- 
erty kept,  sold,  or  used  in  violation  of 
law.— See,  also,  post,  POLICE  POWER. 

Food  that  is  unwholesome  and  unfit 
for  use,  if  kept  for  sale  or  in  danger  of 
being  sold,  is  in  itself  a  nuisance,  and  a 
nuisance  of  the  most  dangerous  kind,  in- 
volving, as  it  does,  the  health,  if  not  the 
lives,  of  persons  who  may  eat  it.  North 
American  Cold  Storage  Co.  v.  Chicago, 
211  U.  S.  306,  315,  53  L.  Ed.  195,  29  S. 
Ct.    101. 

Even  if  it  be  a  fact  that  some  value 
may  remain  for  certain  purposes  in  food 
that  is  unfit  for  human  consumption,  the 
right  to  destroy  it  is  not  on  that  account 
taken  way.  The  small  value  that  might 
remain  in  said  food  is  a  mere  incident, 
and  furnishes  no  defense  to  its  destruc- 
tion when  it  is  plainly  kept  to  be  sold  at 
some  time  as  food.  North  American 
Cold  Storage  Co.  v.  Chicago,  211  U.  S. 
306,  320,  53  L.  Ed.  195,  29  S.  Ct.  101; 
California  Reduction  Co.  v.  Sanitary  Re- 
duction Works,  199  U.  S.  306,  322,  50  L. 
Ed.  204;  Gardner  v.  Michigan,  199  U.  S. 
325,    50    L.    Ed.    212. 

Due  process  of  law  is  not  denied  the 
owner  or  custodian  of  food  in  cold  stor- 
age by  a  municipal  ordinance  under 
which  such  food,  when  unfit  for  human 
consumption,  may  summarily  be  seized, 
condemned,  and  destroj^ed  by  municipal 
officers  without  a  preliminary  hearing. 
Decree  (.C.  C.  1907)  151  Fed.  120,  modi- 
fied. North  American  Cold  Storage  Co. 
v.  Chicago,  211  U.  S.  306,  53  L.  Ed.  195, 
29    S.    Ct.   101. 

The  power  of  the  legislature  to  enact 
laws  in  relation  to  the  public  health  be- 
ing conceded,  as  it  must  be,  it  is  to  a 
great  extent  within  legislative  discretion 
as  to  whether  any  hearing  need  be  given 
before  the  destruction  of  unwholesome 
food  which  is  unfit  for  human  consump- 
tion. North  American  Cold  Storage  Co. 
V.  Chicago,  211  U.  S.  306,  53  L.  Ed.  195, 
29    S.    Ct.   101. 

Provision  for  hearing  before  seizure 
and  condemnation  and  destruction  of 
food  which  is  unwholesome  and  unfit  for 
use  is  not  necessary.  The  right  to  so 
seize  is  based  upon  the  right  and  duty  of 


the  state  to  protect  -and  guard,  as  far  as 
possible,  the  lives  and  health  of  its  in- 
habitants, and  that  it  is  proper  to  provide 
that  food  which  is  unfit  for  human  con- 
sumption should  be  summarily  seized  and 
destroyed  to  prevent  the  danger  which 
would  arise  from  eating  it.  North  Amer- 
ican Cold  Storage  Co.  v.  Chicago,  211  U. 
S.  306,  53   L.   Ed.  195,  29   S.  Ct.   101. 

An  allegation  in  a  bill  that  a  munici- 
pal ordinance  providing  for  the  summary 
seizure  and  destruction  of  food  in  cold 
storage  when  unfit  for  human  consump- 
tion violates  U.  S.  Const.  14th  Amend., 
because  it  provides  neither  for  notice 
nor  an  opportunity  to  be  heard  before 
such  seizure  and  destruction,  presents,  al- 
though unfounded,  a  constitutional  ques- 
tion within  the  original  jurisdiction  of 
the  federal  circuit  court.  North  Ameri- 
can Cold  Storage  Co.  v.  Chicago,  211  U. 
S.  306,  53  L.   Ed.  195,  29  S.   Ct.  101. 

A  determination  on  the  part  of  the 
seizing  officers  that  food  is  in  an  unfit 
condition  to  be  eaten  is  not  a  decision 
which  concludes  the  owner.  The  ex 
parte  finding  of  the  health  officers  as  to 
the  fact  is  not  any  way  binding  upon 
those  who  own  or  claim  the  right  to  sell 
the  food.  If  a  party  can  not  get  his 
hearing  in  advance  of  the  seizure  and 
destruction  he  has  the  right  to  have  it 
afterward,  which  right  may  be  claimed 
upon  the  trial  in  an  action  brought  for 
the  destruction  of  his  property,  and  in 
that  action  those  who  destroyed  it  can 
only  successfully  defend  if  the  jury  shall 
find  the  fact  of  unwholesomeness  as 
claimed  by  them.  North  American  Cold 
Storage  Co.  v.  Chicago,  211  U.  S.  306, 
315,  53  L.   Ed.  195,  29  S.   Ct.  101. 

The  owner  of  the  food  or  its  custodian 
is  amply  protected  against  the  party 
seizing  the  food,  who  must  in  a  subse- 
quent action  against  him  show  as  a  fact 
that  it  was  within  the  statute;  therefore, 
due  process  of  law  is  not  denied  the 
owner  or  custodian  by  the  destruction  of 
the  food  alleged  to  be  unwholesome  and 
unfit  for  human  food  without_  a  prelimi- 
nary hearing.  North  American  Cold 
Storage  Co.  v.  Chicago,  211  U.  S.  306. 
320,    53    L.    Ed.    195,   29    S.    Ct.    101. 


501 


582 


DUE  PROCESS  OF  LAW. 


Vol.  V. 


which  they  undertake  to  serve  it,  without    compensation  for  the   performance  of 
some  part  of  their  duties  that  does  not  pay.^^ 


582-8a.  Requiring  public  service  com- 
panies to   perform   duties  at  a   pecuniary 

loss.— Missouri  Pac.  R.  Co.  v.  Nebraska, 
217  U.  S.  196,  54  L.  Ed.  727,  30  S.  Ct. 
461;  Missouri  Pac.  R.  Co.  v.  Railroad 
Comm'rs,  216  U.  S.  262,  54  L.  Ed.  472,  30 
S.  Ct.  330.  See,  also,  post,  POLICE 
POWER. 

As  to  regulation  of  rates  in  general,  see 
post,   POLICE   POWER. 

The  difference  between  the  exertion  of 
the  legislative  power  to  establish  rates 
in  such  a  manner  as  to  confiscate  the 
property  of  a  corporation  by  fixing  them 
below  a  proper  remunerative  standard, 
and  an  order  compelling  a  corporation  tc 
render  a  service  which  it  was  essentially 
its  duty  to  perform,  was  pointed  out  in 
Atlantic,  etc.,  R.  Co.  v.  North  Carolina 
Corp.  Comm.,  206  U.  S.  1,  51  L.  Ed.  933, 
27  S.  Ct.  585.  In  that  case  the  order  to 
operate  a  train  for  the  purpose  of  making 
a  local  connection  necessary  for  the  pub- 
lic convenience  was  upheld,  despite  the 
fact  that  it  was  conceded  that  the  return 
from  the  operation  of  such  train  would  not 
be  remunerative.  Speaking  of  the  distinc- 
tion between  the  two,  it  was  said:  ''This  is 
so  (the  distinction)  because,  as  the  primal 
duty  of  a  carrier  is  to  furnish  adequate 
facilities  to  the  public,  that  duty  may  well 
be  compelled,  although  by  doing  so,  as  an 
incident,  some  pecuniary  loss  from  ren- 
dering such  service  may  result.  It  follows, 
therefore,  that  the  mere  incurring  of  a 
loss  from  the  performance  of  such  a  duty 
does  not,  in  and  of  itself,  necessarily  give 
rise  to  the  conclusion  of  unreasonable- 
ness, as  would  be  the  case  where  the 
whole  scheme  of  rates  was  unreasonable 
under  the  doctrine  of  Smyth  v.  Ames,  169 
U.  S.  466,526,43  L.  Ed.  819,  18  S.  Ct.  418; 
Missouri,  Pac.  R.  Co.  v.  Railroad 
Comm'rs,  216  U.  S.  262,  54  L.  Ed.  472,  30 
S.  Ct.  330. 

"Of  course,  the  fact  that  the  furnishing 
of  a  necessary  facility  ordered  may  oc- 
casion an  incidental  pecuniary  loss  isan 
important  criteria  to  be  taken  into  view 
in  determining  the  reasonableness  of  the 
order,  but  it  is  not  the  only  one.  As  the 
duty  to  furnish  necessary  facilities  is 
coterminous  with  the  powers  of  the  cor- 
poration, the  obligation  to  discharge  that 
duty  must  be  considered  in  connection 
with  the  nature  and  productiveness  of  the 
corporate  business  as  a  whole,  the  char- 
acter of  the  services  required,  and  the 
public  need  for  its  performance."  Mis- 
souri Pac.  R.  Co.  V.  Railroad  Comm'rs, 
216  U.  S.  262,  54  L.  Ed.  472,  30  S.  Ct.  330. 

Indeed,  the  principle  which  was  thus 
applied  in  the  Atlantic  Coast  Line  Case 
had  previously,  as  pointed  out  in  that 
case,  been  made  the  basis  of  the  ruling  in 


Wisconsin,  etc.,  R.  Co.  v.  Jacobson,  179 
U.  S.  287,  45  L.  Ed.  194,  21  S.  Ct.  115;  Mis- 
souri Pac.  R.  Co.  V.  Railroad  Comm'rs, 
216  U.  S.  262,  54  L.  Ed.  472,  30  S.  Ct.  330. 
•  "The  fact  that  the  performance  of  the 
duty  commahded  by  the  order  which  is 
here  in  question  may,  as  we  have  con- 
ceded for  the  purpose  of  the  argument, 
entail  a  pecuniary  loss,  is,  of  course,  as 
declared  in  the  Atlantic  Coast  Line  Case, 
as  a  general  rule,  a  circumstance  to  be 
considered  in  determining  its  reasonable- 
ness, as  are  the  other  criteria  indicated 
in  the  opinion  in  that  case.  But  where  a 
duty  which  a  corporation  is  obliged  to 
render  is  a  necessary  consequence  of  the 
acceptance  and  continued  enjoyment  of 
its  corporate  rights,  those  rights  not  hav- 
ing been  surrendered  by  the  corporation, 
other  considerations  are,  in  the  nature  of 
things,  paramount,  since  it  can  not  be 
said  that  an  order  compelling  the  perform- 
ance of  such  duty  at  a  pecuniary  loss  is 
unreasonable.  To  conclude  to  the  con- 
trary would  be  but  to  declare  that  a  cor- 
porate charter  was  purely  unilateral;  that 
is,  was  binding  in  favor  of  the  corporation 
as  to  all  rights  conferred  upon  it,  and  was 
devoid  of  obligation  as  to  duties  imposed, 
even  though  such  duties  were  the  abso- 
lute correlative  of  the  rights  conferred." 
Missouri  Pac.  R.  Co.  v.  Railroad 
Comm'rs,  216  U.  S.  262,  54  L.  Ed.  472,  80 
S.  Ct.  330. 

There  was  no  merit  in  the  contention 
that  the  fact  of  pecuniary  loss  was  of  it- 
self alone  adequate  to  show  the  unreason- 
ableness of  the  order.  This  follows  from 
the  principle  which  we  have  previously 
expounded,  to  the  effect  that  the  crite- 
rion to  apply  in  a  case  like  this  is  the  na- 
ture and  character  of  the  duty  ordered, 
and  not  the  mere  burden  which  may  re- 
sult from  its  performance.  Missouri  Pac. 
R.  Co.  V.  Railroad  Comm'rs,  216  U.  S. 
262,  54  L.  Ed.  472,  30  S.  Ct.  330.    . 

Requiring  water  company  to  bear  ex- 
pense of  making  service  connections. — 
Requiring  a  water  company,  upon  the 
theory  of  an  implied  contract,  to  bear  the 
cost  of  making  the  service  connections 
which  it  was  its  duty,  under  its  charter,^  to 
make,  does  not  amount  to  confiscation 
and  the  consequent  taking  of  the  com- 
pany's property  without  due  process  of 
law.  Consumers'  Co.  v.  Hatch,  224  U.  S. 
14S.  56  L.  Ed.  703,  32  S.  Ct.  4G5. 

The  mere  fact  of  holding  that  an  obli- 
gation would  be  implied  to  pay  for  the 
doing  of  work  to  enable  the  corporation 
to  perform  a  duty,  when  the  duty  to  do 
such  work  was  clearly  the  result  of  the 
state  law  and  decisions  thereon  at  the 
time  the  charter  was  granted,  did  not 
amount    to    confiscation,    and    the    conse- 


502 


Vol.  V. 


DUB  PROCESS  OF  LAW. 


583 


(gg)  Regulation  of  Rates. — See  ante,  Carriers,  p.  216;  post,  Interstate  and 
Foreign  Commerce;  Police  Power. 

(ii)  Requiring  Public  Service  Companies  to  Bear  Expense  Incident  to  Aboli- 
tion of  Crossings,  Removal  or  Construction  of  Tracks,  Bridges,  Pipes,  Paving  of 
Right  of  Way,  etc. — See  notes  9,  13. 


quent  taking  of  the  property  of  the  cor- 
poration without  due  process  of  law,  in 
violation  of  the  fourteenth  amendment. 
Consumers'  Co.  v.  Hatch,  224  U.  S.  148, 
56  L.   Ed.  703,  32  S.  Ct.  465. 

The  grounds  for  the  claim  in  question 
are  in  substance  that,  as  the  water  com- 
pany was  not  required  by  its  charter  in 
express  terms  to  make  a  service  connec- 
tion, and  the  benefits  of  such  connection 
would  inure  solely  to  the  house  owner,  to 
compel  the  water  company  to  bear  the 
cost  of  the  connection  would  amount  to 
a  confiscation  of  its  property,  in  violation 
of  the  due  process  clause  of  the  four- 
teenth amendment,  and  also  would  be  to 
impair  the  obligation  of  its  contract.  A 
further  claim  of  impairment  of  contract  is 
based  upon  the  contention  that,  as  it  was 
optional  with  the  water  company,  under 
its  franchise,  to  lay  mains  in  ungraded 
streets,  there  was  no  duty  to  supply 
water  from  a  main  voluntarily  placed  in  an 
ungraded  street.  The  contentions  are  de- 
void of  merit.  The  charter  of  the  company 
was  construed  by  the  court  below  in  con- 
nection with  the  statutes  in  force  at  the 
time  of  the  grant  of  the  franchise,  in  the 
light  of  the  construction  given  to  those 
statutes  in  decisions  made  prior  to  such 
grant.  By  thus  interpreting  the  charter  by 
applying  the  settled  meaning  of  the  stat- 
utes which  had  been  announced  at  the 
time  the  charter  was  granted  to  the  water 
company,  the  court  held  that  it  was  the 
duty  of  the  company,  under  its  charter,  to 
make  the  service  connection  for  Hatch  at 
its  own  cost.  This  was  based  upon  the 
view  that,  as  it  was  clearly  settled  by  both 
the  statute  law  and  decisions  at  the  time 
the  charter  was  granted  that  it  was  the 
duty  of  the  water  company  to  make  serv- 
ice connections,  and  its  further  duty  be- 
ing to  supply  water  to  consumers,  by  nec- 
essary implication  the  charter  imposed 
the  obligation  to  pay  the  cost  of  the  serv- 
ice connection  which  it  was  incumbent 
upon  the  company  to  make.  Consumers' 
Co.  V.  Hatch,  224  U.  S.  148,  56  L.  Ed.  703, 
32  S.  Ct.  465. 

Suspending  collection  of  tolls  until 
turnpike  put  in  order. — Suspending  the 
collection  of  tolls  by  a  turnpike  company, 
conformably  to  a  state  statute,  which  was 
in  force  long  before  the  road  was  con- 
structed or  acquired  by  the  plaintiffs  un- 
til the  roads  shall  be  put  in  proper  re- 
pair, does  not  take  property  without  due 
process  of  law,  contrary  to  U.  S.  Const., 
14th  amendment,  because  the  travel  does 
not  yield  a  sufficient  revenue  to  keep  the 


roads  in  good  order.  Norfolk,  etc.,  Turn- 
pike Co.  V.  Commonwealth,  225  U.  S.  264, 
56  L.  Ed.  1082,  32  S.  Ct.  828. 

"This  statute  has  been  a  law  of  Vir- 
ginia, with  little  change,  since  February 
7,  1817,"  and  there  has  been  no  denial  of 
this  statement.  The  motions  below  did 
not,  therefore,  amount  to  a  claim  against 
the  rates  per  se,  but  simply  asserted  that 
as  the  travel  on  the  turnpikes  was  not 
sufficient  to  cause  their  operation  to  be 
profitable,  that  is  to  say,  to  produce  a 
sufficient  revenue  to  enable  the  roads  to 
be  kept  in  good  order,  therefore  the  ob- 
ligation imposed  by  the  statute  and  volun- 
tarily assumed  ought  not  to  be  enforced. 
The  mere  statement  of  this  proposition 
is  sufficient  to  establish  its  entire  want  of 
merit.  To  suspend  the  taking  of  tolls 
while  the  roads  were  not  out  of  repair 
manifestly  was  not  a  taking  of  property, 
but  was  simply  a  method  provided  by  stat- 
ute to  enforce  the  discharge  of  the  public 
duty  respecting  the  safe  and  convenient 
maintenance  of  a  public  highway.  In  other 
words,  as  observed  by  the  attorney 
general  for  the  commonwealth,  the  bur- 
den of  keeping  the  turnpikes  in  repair  was 
made  a  condition  precedent  to  the  right 
to  collect  tolls.  Norfolk,  etc.,  Turnpike 
Co.  V.  Commonwealth,  225  U.  S.  264,  56  L. 
Ed.  1082,  32  S.  Ct.  828. 

Confiscatory  requirements  as  to  gas 
rates  and  standard  of  pressure  in  mains. 
— The  requirements  as  to  gas  pressure 
made  by  Laws  N.  Y.  1905,  p.  2091,  c.  736, 
and  Laws  190G,  p.  235,  c.  125,  are  confis- 
catory, where  to  put  this  pressure  upon 
the  mains  and  other  service  pipes,  in  their 
present  condition,  is  to  run  a  great  risk 
of  explosion  and  consequent  disaster,  and 
to  eliminate  such  danger  requires  an  ex- 
penditure of  many  millions  of  dollars  from 
which  no  return  can  be  had  at  the  rates 
established  by  those  acts.  Willcox  v.  Con- 
solidated Gas  Co.,  212  U.  S.  19,  53  L.  Ed. 
382,  29  S.  Ct.  192.  > 

583-9.  Uncompensated  removal  of 
bridges,  etc. — vSee,  also,  post,  INTER- 
STATE AND  FOREIGN  COAIMERCE; 
POLICE  POWER. 

A  bridge  over  an  interstate  waterway, 
though  erected  under  the  sanction  of  a 
state  law,  and  not  an  illegal  structure,  or 
an  unreasonable  obstruction  to  navigation 
in  the  condition  of  commerce  and 
navigation  when  erected,  must  be  taken 
as  having  been  constructed  with  knowl- 
edge of  the  paramount  power  of  con- 
gress to  regulate  commerce  among  the 
states,    and    subject    to    the    condition    or 


503 


584 


DUE  PROCESS  OF  LAW. 


Vol.  V. 


(mm)  Separate  Coach  Laws. — See  ante,  Civil  Rights,  p.  236. 

(nn)    Limitations  upon  Police  Power. — See  post,  Police  Power. 

(b^)  In  the  Exercise  of  the  Power  to  Regulate  Commerce. — See,  generally, 
post.  Interstate  and  Foreign  Commerce.  See,  also,  ante,  "A  Distinction  be- 
tween Damaging  and  Taking,"  VI,  D,  2,  b,  (3).  As  to  the  control  of  congress 
over  the  navigable  waters  of  the  United  States  and  the  power  to  remove  bridges 
and  other  obstructions,  establish  harbor  lines,  etc.,  see  post.  Interstate  and 
Foreign  Commerce;  Navigable  Waters.  See,  also,  ante,  "Requiring  Public 
Service  Companies  to  Bear  Expense  Incident  to  Abolition  of  Crossings,  Removal 
or  Construction  of  Tracks,  Bridges,  Pipes,  Paving  Right  of  Way,  etc.,"  VI,  D,  2. 


possibility  that  congress  might,  at  some 
time  after  its  construction,  and  for  the 
protection  or  benefit  of  the  public,  exert 
its  constitutional  power  to  protect  free 
navigation  as  it  then  was  against  unrea- 
sonable obstructions.  United  States  v. 
Monongahela  Bridge  Co.  (D.  C),  160  Fed. 
712,  affirmed  in  Monongahela  Bridge  Co. 
V.  United  States,  216  U.  S.  177,  54  L.  Ed. 
435,  30  S.  Ct.  356. 

The  mere  silence  of  congress  and  its 
failure  directly  to  interfere  and  prevent 
the  original  construction  of  a  bridge 
erected  under  the  sanction  of  a  state  law, 
over  an  interstate  waterway,  iinposes  no 
constitutional  obligation  upon  the  United 
States  to  make  compensation  for  subse- 
quent changes  or  alterations  which  the 
public  good,  in  its  judgment,  requires. 
Monongahela  Bridge  Co.  v.  United  States, 
216  U.  S.  177,  54  L.   Ed.  435,  30  S.  Ct.  35G. 

To  require  alterations  or  changes  in  a 
particular  bridge,  within  a  specified  time, 
and  after  the  parties  have  been  heard,  was 
not  such  a  taking  of  private  property  for 
public  use  as  must,  under  the  constitu- 
tion, be  preceded  by  the  making  of  or  suf- 
ficiently securing  compensation  to  the 
owners  of  the  bridge.  Monongahela 
Bridge  Co.  v.  United  States,  216  U.  S.  177, 
54  L.  Ed.  435,  30  S.  Ct.  356. 

The  action  of  the  secretary  of  war  in 
requiring  changes  in  a  bridge  over  an  in- 
terstate waterway  within  a  specified 
time,  and  after  the  parties  have  been 
heard,  conformably  to  the  Act  of  March 
3,  1899,  §  18,  enacted  to  secure  navigation 
against  unreasonable  obstruction,  is  not 
such  a  taking  of  private  property  for  pub- 
lic use  as  must,  under  the  federal  con- 
stitution, be  preceded  by  making,  or  suf- 
ficiently securing,  compensation  to  the 
owners  of  the  bridge.  Monongahela  Bridge 
Co.  V.  United  States,  216  U.  S.  177,  54  L. 
Ed.   435,   30   S.    Ct.   356. 

584-13.  Expense  incident  to  opening 
street,  establishing  crossing,  building 
bridges,  etc. — The  expense  of  construct- 
ing a  railway  bridge  over  a  highway,  made 
necessary  by  the  action  of  the  inunicipal- 
ity  in  opening  such  highway  through  the 
railway  company's  embankment,  may  be 
cast  upon  the  railway  company  without 
denying  the  due  process  of  law  guar- 
anteed by  the  federal  constitution,  which 


requires  that  compensation  be  made  when 
private  property  is  taken  for  public  use. 
Cincinnati,  etc.,  R.  Co.  v.  Connersville, 
218  U.  S.  336,  54  L.  Ed.  1060,  31  S.  Ct.  93, 
affirming  judgment  83  N.  E.  503,  170  Ind. 
316. 

The  question  as  to  the  right  of  the  rail- 
way company  to  be  reimbursed  for  any 
moneys  necessarily  expended  in  con- 
structing the  bridge  in  question,  is  we 
think,  concluded  by  former  decisions  of 
this  court;  particularly  by  Chicago,  etc., 
R.  Co.  V.  Drainage  Comm'rs,  200  U.  S. 
561,  601,  50  L.  Ed.  596,  26  S.  Ct.  341;  New 
Orleans  Gas  Light  Co.  v.  Drainage 
Comm'rs,  197  U.  S.  453,  49  L.  Ed.  831,  25 
S.  Ct.  471;  New  York,  etc.,  R.  Co.  v.  Bris- 
tol, 151  U.  S.  556,  571,  38  L.  Ed.  269,  14  S. 
Ct.  437;  Chicago,  etc.,  R.  Co.  v.  Chicago, 
166  U.  S.  226,  254,  41  L.  Ed.  979,  17  S.  Ct. 
581;  Transportation  Co.  v.  Chicago,  99  U. 
S.  635,  25  L.  Ed.  336.  See,  also.  Union 
Bridge  Co.  v.  United  States,  204  U.  S.  364, 
51  L.  Ed.  523,  27  S.  Ct.  367;  Cincinnati, 
etc.,  R.  Co.  V.  Connersville,  218  U.  S.  336, 
54   L.    Ed.    1060,   31    S.   Ct.   93. 

The  railway  company  accepted  its  fran- 
chise from  the  state,  subject  necessarily 
to  the  condition  that  it  would  conform  at 
its  own  expense  to  any  regulations,  not 
arbitrary  in  their  character,  as  to  the  open- 
ing or  use  of  streets,  which  had  for  their 
object  the  safety  of  the  public,  or  the 
promotion  of  the  public  convenience,  and 
which  might,  from  time  to  time,  be  es- 
tablished by  the  municipality,  when  pro- 
ceeding under  legislative  authority,  within 
whose  limits  the  company's  business  was 
conducted.  Cincinnati,  etc.,  R.  Co.  v.  Con- 
nersville, 218  U.  S.  336,  54  L.  Ed.  1060,  31 
S.  Ct.  93. 

A  judgment  of  the  district  court  of  Hen- 
nepin County,  Minnesota,  enforcing  by 
mandamus  municipal  legislation  requir- 
ing a  railway  company  to  construct  at  its 
own  expense  a  bridge  to  carry  over  its 
tracks  a  street  which  was  not  extended 
over  the  right  of  way  until  after  the  rail- 
road was  built,  upheld  as  not  impairing 
tlic  obligation  of  contracts  and  affirmed 
on  the  authority  of  Northern  Pac.  R.  Co. 
V.  Duluth,  208  U.  S.  583,  52  L.  Ed.  630,  28 
S.  Ct.  341;  St.  Paul,  etc.,  R.  Co.  v.  Minne- 
apolis, 214  U.  S.  497,  53  L.  Ed.  1060,  29  S. 
Ct.  698. 


504 


Vol.  V. 


DUB  PROCESS  OF  LAW. 


587-589 


b,  (4),  (b),  (ii)  ;  post,  "Right  of  Riparian  Owners,"  VI,  D,  2,  b,  (4),  (q).  As 
to  any  vested  or  property  right  to  import  or  traffic  in  certain  articles  of  commerce 
which  congress  may  see  fit  to  prescribe  or  prohibit,  see  post,  Interstate  axd 
FoREiGx  Commerce.  As  to  the  power  of  congress  to  prohibit  the  making  of 
contracts  in  violation  of  statutes  regulating  commerce,  or  to  prevent  the  carrying 
out  of  existing  contracts  valid  at  the  time  when  made,  such  as  contracts  for  re- 
bates, reduced  rates,  etc.,  see  post,  Interstate  and  Foreign  Commerce.  As  to 
the  power  of  congress  to  secure  the  effective  operation  of  certain  regulations  by 
prohibiting  the  making  of  contracts  modifying  or  waiving  the  provisions  of  the 
statute,  such  as  forbidding  contracts  for  the  waiver  of  statutory  provisions  re- 
lating to  suits  for  personal  injuries  by  the  acceptance  of  benefits  under  a  mem- 
bership in  a  railway  relief  department,  see  post.  Interstate  and  Foreign  Com- 
merce. 

(c)  /;;  the  Exercise  of  the  Taxing  Po-wcr. — See  post.  Taxation. 

(d)  Lazi's  Respecting  Rights  of  Action  and  Defenses. — See  ante,  "As  to  What 
Shall  Constitute  an  Actionable  Wrong;  Damages  Recoverable,"  \1,  A,  8,  f; 
post,  "blatters  Admissible  in  Defense,"  \'l,  E,  11 ;  "Laws  Respecting  Damages 
and  Penalties,"  VI,  E,  13.  See,  also,  ante.  Constitutional  Law,  p.  264;  post, 
Police  Power.  As  to  the  powers  of  territorial  legislatures,  see  ante.  Constitu- 
tional Law,  p.  264. 

(e)  Vested  Rights  under  Judgments  and  Decrees. — See  ante,  Constitutional 
Law,  p.  264.     See  note  26. 

(f)  Changing  Ronedies  and  Procedure — (dd)  Retrospective  Statutes  of  Lim- 
itation—  (aaa)  Limiting  Period  in  Which  Action  May  Be  Brought. — See  note  31. 

(h)    Interference   zuith    Contract   and   Lien    Rights. — See    ante.    "The     Fifth 


587-26.  Vested  right  under  judgments 
and  decrees — Administrative  ruling. — Due 
process  of  law  does  not  assure  to  a  tax- 
payer the  interpretation  of  state  legisla- 
tion by  the  executive  officers  of  a  state  as 
against  its  interpretation  by  the  courts  of 
the  state,  or  relief  from  the  consequences 
of  a  misinterpretation  by  either.  Thomp- 
son v.  Commonwealth,  209  U.  S.  340,  52 
L.  Ed.  822,  28  S.  Ct.  533,  affirmed  29  Ky. 
Law  Rep.  705,  94  S.  W.  654. 

In  other  words,  a  person  relying  upon 
the  interpretation  given  an  act  bj^  the  exec- 
utive officers  of  the  state  must  take  his 
chances  upon  their  decision  being  over- 
ruled by  a  different  construction  placed 
upon  the  act  by  the  judicial  officers  of  the 
state;  and  the  subsequent  enforcement  of 
the  act  against  him  according' to  the  con- 
struction placed  upon  it  bj^  the  judicial  of- 
ficers of  the  state  is  not  denial  of  due  proc- 
ess of  law.  Thompson  v.  Common- 
wealth, 209  U.  S.  340,  52  L.  Ed.  822,  28  S. 
Ct.  533,  affirmed  29  Ky.  Law  Rep.  705,  94 
S.    W.    654. 

Thus,  where  the  state  law  required  the 
warehouseman  to  pay  the  taxes  upon  liq- 
uors stored  in  a  bonded  warehouse,  and 
gave  him  a  lien  upon  the  liquors  for  taxes 
and  interest  paid,  and  the  warehouseman, 
relying  upon  the  construction  placed  upon 
the  act  by  the  executive  and  administra- 
tive officers  of  the  state,  paid  the  taxes 
without  paying  any  interest,  it  was  held 
that  the  state  was  not  estopped  from  col- 


lecting the  interest  required  by  a  proper 
construction  of  the  statute,  notwithstand- 
ing the  liquors  had,  since  the  previous 
payment,  been  withdrawn  from  the  ware- 
house, and  that,  in  so  doing,  it  did  not  de- 
prive the  warehouseman  of  his  property 
without  due  process  of  law  in  violation 
of  the  fourteenth  amendment.  Thompson 
V.  Commonwealth,  209  U.  S.  340,  52  L.  Ed. 
822,  28  S.  Ct.  533,  affirmed  29  Ky.  Law 
Rep.  705,  94  S.  W.  654. 

589-31.  Limiting  time  for  bringing 
action. — If  the  legislature  thinks  that  a 
year  is  long  enough  to  allow  a  party  to 
recover  his  property  from  a  third  hand, 
and  establishes  that  time  in  cases  where 
he  has  not  been  heard  of  for  fourteen 
years,  and  presumably  is  dead,  it  acts 
within  its  constitutional  discretion.  Now 
and  then  an  extraordinary  case  maj-  turn 
up,  but  constitutional  law,  like  other  mor- 
tal contrivances,  has  to  take  some  chances, 
and  in  the  great  majority  of  instances,  no 
doubt,  justice  will  be  done.  Blinn  z:  Nel- 
son, 222  U.  S.  1,  56  L.  Ed.  65,  32  S.  Ct.  1. 
See  American  Land  Co.  v.  Zeiss.  219  U 
S.  47,  67,  55  L.  Ed.  82.  31  S.  Ct.  200.  See, 
also,  post,  LIMITATION  OF  ACTIONS 
AND  ADVERSE  POSSESSION.  See, 
also,  ante,  "Alere  Possibility  of  Evil  or 
Hardship  in  Particular  Instances  Not  Suf- 
ficient to  Invalidate  Law,"  II,  C,  6;  ''Con- 
strued in  Light  of  Practical  AlTairs;  Lot- 
Conditions,  Habits,  Customs  and  Tradi- 
tions   of   Particular   Communities,"    V,    F. 


5o; 


596-598 


DUB  PROCESS  OP  LAW. 


Vol.  V. 


Amendment  as  a  Restriction  upon  the  Express  Powers  of  Congress,"  VI,  A,  4; 
"A  Distinction  between  Damaging  and  Taking,"  VI,  D,  2,  b,  (3)  ;  "In  the  Exer- 
cise of  the  Power  to  Regulate  Commerce,"  VI,  D,  2,  b,  (4),  (b^),  and  references 
there  given.  See,  generally,  post,  Impairment  of  Obi,igation  of  Contracts  ; 
Interstate  and  Foreign  Commerce;  Police  Power. 

(q)  Rights  of  Riparian  Owners — (bb)  Property  Rights  of  Riparian  Ozuners 
as  Determined  by  State  Law. — See  note  50. 

(cc)  Property  Rights  of  Riparian- Ozuners  as  Subservient  to  Right  of  Govern- 
ment to  Improve  Navigability  of  Stream. — See  notes  54,  56. 


596-50.  Rights  of  riparian  owners — As 
determined  by  state  law. — The  rights  of  a 
riparian  owner  upon  a  navigable  stream 
in  this  country  are  governed  by  the  law 
of  the  state  in  which  the  stream  is  situ- 
ated. Weems  Steamboat  Co.  v.  People's 
Steamboat  Co.,  214  U.  S.  345,  53  L.  Ed. 
1024,  29  S.  Ct.  661. 

598-54.  As  subservient  to  right  of  gov- 
ernment to  improve  navigability,  remove 
obstructions,  etc. — While  as  between  the 
state  and  an  individual  riparian  proprie- 
tor, the  limits  of  his  proprietorship,  as  ex- 
tending to  high  water  or  low  water  marks, 
etc.,  is  determined  by  the  state  law,  yet 
with  respect  to  public  navigable  waters 
constituting  highways  of  interstate  com- 
merce, this  power  of  the  state  and  the 
rights  of  individuals  acquired  under  state 
laws  and  regulations,  are  subject  to  the 
paramount  public  right  of  navigation  and 
the  power  of  congress  to  control  the 
same.  Weems  Steamboat  Co.  v.  People's 
Steamboat  Co.,  214  U.  S.  345,  53  L.  Ed. 
1024,  29  S.  Ct.  661;  Philadelphia  Co.  v. 
Stimson,  223  U.  S.  605,  56  L.  Ed.  570,  32 
S.   Ct.  340. 

"Commerce  includes  navigation.  The 
power  to  regulate  commerce  compre- 
hends the  control  for  that  purpose,  and 
to  the  extent  necessary,  of  all  the  naviga- 
ble waters  of  the  United  States  which 
are -accessible  from  a  state  other  than 
those  in  which  they  lie.  For  this  purpose 
they  are  the  public  property  of  the  nation, 
and  subject  to  all  the  requisite  legislation 
by  congress.  This  necessarily  includes  the 
power  to  keep  them  open  and  free  from 
any  obstructions  to  their  navigation,  in- 
terposed by  the  states  or  otherwise;  to 
remove  such  obstructions  when  they  exist; 
and  to  provide,  by  such  sanctions  as  they 
may  deem  proper,  against  the  occurrence 
of  the  evil  and  for  the  punishment  of  of- 
fenders. For  these  purposes,  congress  pos- 
sesses all  the  powers  which  existed  in  the 
states  before  the  adoption  of  the  national 
constitution,  and  which  have  always  ex- 
isted in  the  parliament  in  England."  Phil- 
adelphia Co.  V.  Stimson,  223  U.  S.  605,  56 
L.  Ed.  570,  32  S.  Ct.  340;  Oilman  v.  Phil- 
adelphia, 3  Wall.  713,  725,  18  L.  Ed.  96. 

Under  its  paramount  power  to  regulate 
commerce  on  and  over  the  navigable 
waters  of  the  United  States,  congress  can 
require    that    such    waters    be    freed    from 


unreasonable  obstructions  to  navigation. 
Monongahela  Bridge  Co.  v.  United 
States,  216  U.  S.  177,  54  L.  Ed.  435,  30  S. 
Ct.  356. 

It  is  for  congress,  under  the  constitu- 
tion, to  regulate  the  right  of  navigation 
by  all  appropriate  means,  to  declare  what 
is  necessary  to  be  done  in  order  to  free 
navigation  from  obstruction,  and  to  pre- 
scribe the  way  in  which  the  question  of 
obstruction  shall  be  determined.  Its  action 
in  the  premises  can  not  be  revised  or  ig- 
nored by  the  courts  or  by  juries,  except 
that  when  it  provides  for  an  investigation 
of  the  facts,  upon  notice  and  after  hear- 
ing, before  final  action  is  taken,  the  courts 
can  see  to  it  that  executive  officers  con- 
form their  actions  to  the  mode  pre- 
scribed by  congress.  Monongahela  Bridge 
Co.  v.  United  States,  216  U.  S.  177,  54  L. 
Ed.  435,  30  S.  Ct.  356. 

It  is  for  congress  to  decide  what  shall 
or  shall  not  be  deemed  in  judgment  of 
law  an  obstruction  of  navigation.  Penn- 
sylvania V.  Wheeling,  etc..  Bridge  Co.,  18 
How.  421,  15  L.  Ed.  435.  And  in  its  regu- 
lation of  commerce  it  may  establish  har- 
bor lines  or  limits  beyond  which  deposits 
shall  not  be  made  or  structures  built  in 
the  navigable  waters.  The  principles  ap- 
plicable to  this  case  have  been  repeatedly 
stated  in  recent  decisions  of  the  federal 
supreme  court.  Philadelphia  Co.  v.  Stim- 
son, 223  U.  S.  605,  56  L.  Ed.  570,  32  S.  Ct. 
340;  Gibson  v.  United  States,  166  U. 
S.  269,  41  L.  Ed.  996,  17  S.  Ct.  578;  Scran- 
ton  V.  Wheeler,  179  U.  S.  141,  45  L.  Ed. 
126,  21  S.  Ct.  48;  Chicago,  etc.,  R.  Co.  v. 
Drainage  Comm'rs,  200  U.  S.  561,  50  L. 
Ed.  596,  26 -S.  Ct.  341;  West  Chicago  St. 
R.  Co.  V.  Chicago,  201  U.  S.  506,  50  L.  Ed. 
845;  Union  Bridge  Co.  v.  United  States, 
204  U.  S.  364,  51  L.  Ed.  523,  27  S.  Ct.  367; 
Monongahela  Bridge  Co.  v.  United  States, 
216  U.  S.  177,  54  L.  Ed.  435,  30  S.  Ct.  356; 
Hannibal  Bridge  Co.  v.  United  States,  221 
U.  S.  11?4,  55  L.  Ed.  699.  31  S.  Ct.  603. 

Jurisdiction  of  congress  follows  shift- 
ing of  stream — Right  to  establish  harbor 
lines  or  improvements. — The  authority 
of  congress  is  not  limited  to  so  much  of 
the  water  of  the  river  as  flows  over  the 
bed  of  forty  years  ago.  The  alteration 
produced  in  the  course  of  years  by  the 
action  of  the  water  does  not  restrict  the 
exercise    of   federal    control    in    the    regu- 


506 


Vol.  V. 


DUB  PROCESS  OF  LAW. 


598 


(ee)  Diversion  of  Waters. — Right  of  Riparian  Owner  to  Divert  Waters. 

— Neither  the  due  process  nor  equal  protection  clauses  of  the  fourteenth  amend- 


lation  of  commerce.  Its  bed  may  vary  and 
its  banks  may  change,  but  the  federal 
power  remains  paramount  over  the 
stream,  and  this  control  may  not  be  de- 
feated by  the  action  of  the  state  in  re- 
stricting the  public  right  of  navigation 
within  the  river's  ancient  lines.  The  pub- 
lic right  of  navigation  follows  the  stream 
(Rolle's  Abr.  390;  Carlisle  v.  Graham,  L. 
R.  4  Exch.  361,  367,  368,  L.  J.  Exch.  N.  S. 
226,  21  L.  T.  N.  S.  133,  18  Week.  Rep.  318), 
and  the  authority  of  congress  goes  with 
it.  Philadelphia  Co.  v.  Stimson,  223  U.  S. 
605,   56   L.    Ed.   570,   32   S.   Ct.   340. 

It  is  not  within  the  power  of  the  state, 
therefore,  as  against  this  supreme  power 
of  congress,  to  establish  a  high  water 
line  and  vest  a  right  of  property  in  the 
riparian  owner  out  to  this  line  as  a  fixed 
and  permanent  limit  of  his  property  with- 
out regard  to  subsequent  shiftings,  vari- 
ations and  encroachments  of  such  line 
caused  by  natural  forces.  The  jurisdiction 
of  congress  follows  the  stream,  and  at- 
taches to  it  in  its  actual  location  at  the 
time  congress  undertakes  to  deal  with  it. 
Hence,  if  at  the  time  congress  undertakes 
to  deal  with  the  stream,  the  waters 
thereof  have  encroached  upon  the  land  of 
the  riparian  proprietor,  and  the  actual 
high  water  line  has  moved  landward  over 
his  land,  so  that  it  no  longer  coincides 
with  the  statutory  line  previously  fixed  by 
the  state,  it  is  competent  for  congress,  in 
establishing  harbor  lines  or  in  defining 
the  navigable  channel,  to  establish  such 
lines  coincident  with  the  then  actual  and 
existing  high  water  line,  and  prevent  the 
riparian  proprietor  from  wharfing  out, 
filling  in,  or  otherwise  reclaiming  or  ex- 
ercising dominion  out  to  the  former  stat- 
utory line  established  by  the  state  and 
fixed  by  it  as  the  perpetual  boundary  of 
his  land  and  limit  of  his  proprietorship  as 
a  riparian  owner;  and  in  so  doing  con- 
gress does  not  deprive  him  of  his  prop- 
erty without  compensation,  and  therefore 
without  due  process  of  law,  since,  as 
against  the  paramount  right  of  the  United 
States  over  interstate  commerce  and  pub- 
lic navigable  interstate  streams,  it  was 
not  competent  for  the  state  to  confer  any 
such  property  right  upon  him.  Philadel- 
phia Co.  V.  Stimson,  223  U.  S.  605,  56  L. 
Ed.  570,  32  S.  Ct.  340. 

The  action  of  a  state  in  providing  by 
statute  for  fixing  the  lines  of  ordinary 
high  and  low  water  in  certain  rivers,  and 
that  the  lines  so  fixed  shall  be  firm  and 
stable  for  the  purposes  intended  by  the 
statute,  however  effective  as  between  the 
state  and  riparian  owners  to  fix  a  per- 
manent boundary  at  the  high  water  line 
so  fixed,  gives  such  owners  no  rights 
which  will  prevent  congress,  in  the  exer- 


cise of  its  right  to  regulate  commerce, 
from  fixing  harbor  lines  in  accordance 
with  the  high  water  mark  as  changed  by 
the  wearing  away  of  the  banks  in  the 
course  of  years.  Philadelphia  Co.  v.  Stim- 
son, 223  U.  S.  605,  56  L.  Ed.  570,  32  S.  Ct. 
340. 

When  the  state  of  Pennsylvania  estab- 
lished harbor  lines  and  thus  undertook  to 
regulate  the  rights  of  navigation,  its 
action,  however  effective  as  between  the 
state  and  the  riparian  proprietors,  was 
necessarily  subject  to  the  paramount 
power  of  congress.  The  state  lines  can 
be  conceded  no  permanent  force,  as 
against  the  will  of  congress,  without  sub- 
stituting for  its  constitutional  authority 
the  supremacy  of  the  state  with  respect 
to  navigable  waters.  Philadelphia  Co.  v. 
Stimson,  223  U.  S.  605,  56  L.  Ed.  570,  32  S. 
Ct.  340. 

It  appeared  from  the  facts  in  this  case 
that  the  shifting  of  the  bed  of  the  stream 
had  been  gradual  and  not  by  any  sudden 
and  perceptible  shifting  or  abandonment 
of  its  channel  or  tearing  away  plaintiff's 
soil  adjacent  thereto.  It  further  appeared 
that  the  harbor  lines,  established  under 
the  authority  of  congress,  were  estab- 
lished before  the  riparian  owner  had 
wharfed  out,  filled  in,  or  otherwise  re- 
claimed the  submerged  land  out  to  the 
old  statutory  line  established  by  the  state. 
The  actual  case  was  a  bill  for  an  injunc- 
tion against  the  secretary  of  war  to  re- 
strain him  from  a  threatened  criminal 
prosecution  of  the  plaintiff  in  case  plain- 
tiff should  undertake  to  reclaim  the  sub- 
merged land  beyond  the  harbor  line  es- 
tablished by  the  war  department  and  out 
to  the  former  high  water  line  established 
by  the  state.  Philadelphia  Co.  v.  Stimson, 
223  U.  S.  605,  56  L.  Ed.  570,  32  S.  Ct. 
340. 

Establishment  of  general  system  of 
harbor  lines,  injunction. — It  has  been  held 
that  the  establishment  of  a  general  sys- 
tem of  harbor  lines,  for  the  protection  of 
commerce  and  navigation,  is  not  of  itself 
an  injury  to  property  and  can  not  be  re- 
strained. Philadelphia  Co.  v.  Stimson,  223 
U.  S.  605,  56  L.  Ed.  570,  32  S.  Ct.  340; 
Yesler  v.  Washington  Harbor  Line 
Comm'rs,  146  U.  S.  646,  656,  36  L.  Ed.  1119, 
13  S.  Ct.  190;  Prosser  v.  Northern  Pac. 
Railroad,  152  U.  S.  59,  65,  38  h.  Ed.  352,  14 
S.   Ct.  528. 

But  it  has  also  been  recognized  that  a 
different  question  arises  when  active 
measures  are  taken  against  an  individual 
proprietor  to  maintain  a  location  of  limits 
in  alleged  violation  of  his  private  rights, 
and  thus  to  prevent  him  from  enjoying 
what  is  asserted  to  be  the  lawful  use  of 
his  property.  Philadelphia  Co.  v.  Stimson, 


507 


598-599 


DUB  PROCESS  OF  LAW. 


Vol.  V. 


ment  recognizes  any  property  right  in  a  riparian  owner  to  divert  the  waters  of  a 
stream  of  the  state  in  which  he  resides  into  another  state  for  use  therein.^*^'^  An 
agreement,  of  no  matter  what  private  owners,  could  not  sanction  the  diversion  of 
an  important  stream  outside  the  boundaries  of  the  state  in  which  it  flows.  The 
private  right  to  appropriate  is  subject  not  only  to  the  right  of  lower  owners,  but  to 
tl>e  initial  limitation  that  it  may  not  substantially  diminish  one  of  the  great  foun- 
dations of  public  welfare  and  health.^'^'^ 
(  ff  j  Flooding  of  Lands. — See  note  61. 


223  U.  S.  605,  56  L.  Ed.  570,  32  S.  Ct.  340; 
Prosser  v.  Northern  Pac.  Railroad,  152  U. 
S.   59,  65,  38  L.   Ed.  352,  14  S.  Ct.  528. 

Where  complainant  a  subsequent  pur- 
chaser.— Where  the  complainant  pur- 
chased the  land  subsequently  to  the  mak- 
ing of  improvement,  the  court  is  not  con- 
cerned with  the  question  whether  there 
was  any  appropriation  of  land  of  the 
former  owner  by  the  United  States,  giv- 
ing rise  to  a  cause  of  action  to  recover  its 
value.  Philadelphia  Co.  v.  Stimson,  223  U. 
S.  605,  56  L.  Ed.  570,  32  S.  Ct.  340;  Gib- 
son v.  United  States,  166  U.  S.  269,  41  L. 
Ed.  996,  17  S.  Ct.  578;  United  States  v. 
Lynah,  188  U.  S.  445,  47  L.  Ed.  539,  23  S. 
Ct.  349;  Bedford  v.  United  States,  192  U. 
S.  217,  48  L.  Ed.  414,  24  S.  Ct.  238;  Mani- 
gault  V.  Springs,  199  U.  S.  473,  50  L.  Ed. 
274,  26  S.  Ct.  127;  Chicago,  etc.,  R.  Co.  v. 
Drainage  Comm'rs,  200  U.  S.  561,  584,  50 
L.  Ed.  596,  26  S.  Ct.  341. 

598-56.  Ownership  of  bed  of  stream. — 
To  streams,  as  highways  of  commerce, 
the  power  of  congress  extends,  a  power 
which  "acknowledges  no  limitation  other 
than  are  prescribed  in  the  constitu- 
tion." Gibbons  v.  Ogden,  9  Wheat.  1, 
196,  6  L.  Ed.  23.  The  exercise  of  this 
power  can  not  be  fettered  by  any  grant 
made  by  the  state  of  the  soil  which 
formed  the  bed  of  the  river,  nor  by  any 
authority  conferred  by  the  state  for  the 
creation  of  obstructions  to  its  navigation. 
Philadelphia  Co.  v.  Stimson,  223  U.  S. 
605,  56  L.   Ed.  570,  32  S.  Ct.  340. 

An  award  of  only  nominal  damages  in 
proceedings  to  acquire  by  eminent  do- 
main the  fee  to  lands  under  the  waters  of 
a  navigable  stream  does  not  take  prop- 
erty for  public  use  without  compensa- 
tion, and  hence  without  due  process  of 
law,  where  substantially  all  the  land  abut- 
ting upon  the  stream  on  either  side  had 
already  been  conveyed  away  by  the  owner 
of  the  bed,  and  the  proceedings  were  had 
under  a  statute  providing  adequate  ma- 
chinery for  the  ascertainment  of  compen- 
sation upon  notice  and  hearing,  and  the 
record  discloses  no  ruling  of  law  prevent- 
ing just  compensation  to  the  owner  for 
the  property  taken.  Appleby  v.  Buffalo, 
221  U.  S.  524,  55  L.  Ed.  838,  31  S.  Ct. 
699. 

599-60a.  Right  of  riparian  owners  to  di- 
vert waters. — Hudson  County  Water  Co. 
^^  McCarter,  209  U.  S.  349,  52  L.  Ed.  828, 
28  S.  Ct.  529. 


Neither  due  process  of  law  nor  the 
equal  protection  of  the  laws  is  denied  by 
Laws  N.  J.  1905,  p.  461,  c.  238,  under  which 
a  riparian  owner  may  be  prevented  from 
diverting  the  waters  of  a  streaiu  of  the 
state  into  any  other  state,  for  use  therein. 
Decree,  McCarter  v.  Hudson  County 
Water  Co.  (1906)  65  A.  489,  70  N.  J.  Eq. 
695,  affirmed.  Hudson  County  Water  Co. 
V.  McCarter,  209  U.  S.  349,  52  L.  Ed.  828, 
28   S.   Ct.   529. 

599-60b.  Same — Effect  of  agreement  be- 
tween private  owners. — Hudson  County 
Water  Co.  v.  McCarter,  209  U.  S.  349, 
52  L.  Ed.  828,  28  S.  Ct.  529. 

599-61.  Flooding  of  lands — Destruc- 
tion of  right  of  way,  means  of  access,  etc. 
— A  private  right  of  way  is  an  easement 
and  is  land  for  which  an  action  ex  con- 
tractu against  the  United  States  will  lie 
when  such  right  of  way  is  destroyed  by 
the  flooding  of  land  actually  taken  by  the 
government  in  the  construction  of  a  dam. 
The  saine  reasoning  which  allows  a  re- 
covery for  the  taking  of  land  by  perma- 
nent occupation  allows  it  for  a  right  of 
way  taken  in  the  same  manner;  and  the 
value  of  the  easement  can  not  be  deter- 
mined without  reference  to  the  dominant 
estate  to  which  it  is  attached.  United 
States  V.  Welch,  217  U.  S.  333,  54  L.  Ed. 
787,    30    S.    Ct.    527. 

The  owner  of  a  farm,  a  part  of  which 
is  permanently  flooded  by  a  government 
dam,  must  be  compensated,  in  addition 
to  the  value  of  the  land  taken,  for  the 
lessened  value  of  the  farm,  caused  by  the 
consequent  cutting  off  of  a  private  way 
across  the  lands  of  others,  which  private 
way  is  the  only  practicable  outlet  from 
the  farm  to  the  county  road.  United 
States  V.  Welch,  217  U.  S.  333,  54  L.  Ed. 
787,  30   S.   Ct.   527. 

In  such  a  case  the  doctrine  which  for- 
l)ids  compensation  for  the  taking  or  de- 
struction of  a  public  way  or  public  water- 
course has  no  application,  since  in  such 
case  the  plaintiff  has  no  private  rights, 
and  such  rights  as  he  has  are  subject  to 
the  superior  public  rights,  and  his  dam- 
age though  greater  in  degree  than  that  of 
the  rest  of  the  public  is  the  same  in  kind. 
United  States  r.  Welch,  217  U.  S.  333,  54 
L.  Ed.  787,  30  S.  Ct.  527. 

Dam  constructed  by  state  institution. — 
The  doctrine,  that  the  flooding  of  land 
caused  by  the  erection  of  a  dam  is  a  sub- 
stantial taking  of  the  land  for  which  com- 


508 


Vol.  V. 


DUB  PROCESS  OF  LAW. 


601-609 


(hh)  Destruction  of  Access  to  Navigable  Channel,  Injury  to  Wharves,  etc. — 
See  note  67. 

(ii)  Injury  or  Destruction  of  Bridges,  Tunnels,  etc. — See  ante,  "Requiring 
Public  Service  Companies  to  Bear  Expense  Incident  to  Abolition  of  Crossings, 
Removal  or  Construction  of  Tracks,  Bridges,  Pipes,  Paving  Right  of  Way,  etc.," 
VI,  D,  2,  b,  (4),  (b),  (ii)  ;  "Property  Rights  of  Riparian  Owners  as  Subservient 
to  Right  of  Government  to  Improve  Navigability  of  Stream,"  VI,  D,  2,  b,  (4), 
(q),  (cc). 

(5)  Purpose  for  Which  Property  May  Be  Taken — (a)  Public  Purpose  Only. 
—Taking  for  Private  Use — Ulterior  Public  Advantage. — It  is  established 
by  a  series  of  cases  that  an  ulterior  public  advantage  may  justify  a  comparatively 
insignificant  taking  of  private  property  for  what,  in  its  immediate  purpose,  is  a 
private  use.--'' 

Use  Public;  but  Inspired  by  Motive  to  Benefit  a  Particular  Private 
Enterprise. — As  to  the  condemnation  of  land  for  a  spur  track  designed  to 
reach  a  private  industry,  see  post,  "Railroads,"  VI,  D,  2,  b,  (5),  (11). 

(b)  What  Constitutes  a  Taking  for  a  Public  Purpose — (aa)  Determination  of 
Character  of  Use;  Functions  of  Court  and  Legislature. — The  nature  of  the  use, 
whether  public  or  private,  for   which  property  is   taken  in  any  given   case  is  ulti- 


pensation  must  be  made  under  the  due 
process  clause  of  the  fourteenth  amend- 
ment, applies  to  the  case  of  an  agricul- 
tural college  owned  and  maintained  by 
the  state,  and  which,  in  an  attempt  to 
prevent  the  flooding  of  its  own  lands  by 
the  building  of  an  embankment,  has 
flooded  the  lands  of  an  individual  proprie- 
tor. And  neither  the  college  nor  the  in- 
dividual officers  erecting  and  maintaining 
such  embankment  can  escape  liability 
from  suit  on  the  plea  that  the  action  is, 
in  effect,  against  the  state.  Hopkins  v. 
Clemson  Agricultural  College,  321  U.  S. 
636,    55    L.    Ed.    890,   31    S.    Ct.    654. 

Rights  of  subsequent  purchaser. — The 
lawful  building  of  a  dam  by  the  United 
States  in  the  interest  of  navigation,  to  in- 
crease the  depths  of  water  in  a  harbor  in 
a  navigable  river,  by  which  an  island 
therein  was  submerged  to  a  much  greater 
extent  than  previously,  and  water  over  a 
part  thereof  rendered  navigable  at  certain 
times  gives  a  subsequent  purchaser  of  such 
island  no  right  to  relief  because  of  its 
construction,  in  an  action  by  him  against 
the  secretary  of  war,  to  have  harbor  lines 
fixed  in  accordance  with  conditions  ex- 
isting before  his  purchase  set  aside.  Phil- 
adelphia Co.  V.  Stimson,  223  U.  S.  605,  56 
L.   Ed.  570,  32  S.  Ct.  340. 

601-67.  Destruction  of  access  to  navi- 
gable channel,  injury  to  wharves,  etc. — 
See,  also,  ante,  "Property  Rights  of  Ri- 
parian Owners  as  Subservient  to  Right  of 
Government  to  Improve  Navigability  of 
Stream,"  VI,  D,  2,  b,  (4),  (q),  (cc). 

The  riparian  proprietors  have  the  right, 
among  others,  to  build  private  wharves 
out  so  as  to  reach  the  navigable  waters  of 
the  stream.  Weems  Steamboat  Co.  v.  Peo- 
ple's Steamboat  Co..  214  U.  S.  345,  53  L. 
Ed.  1024,  29  S.  Ct.  661. 


If  the  wharf  obstructs  navigation  or  the 
private  rights  of  others,  or  if  it  encroach 
upon  any  public  landing,  the  wharf  may 
be  abated.  (Va.  Code  1887,  §  998).  Weems 
Steamboat  Co.  v.  People's  Steamboat  Co., 
214  U.  S.  345,  53  L.  Ed.  1024,  29  S.  Ct. 
661. 

A  private  wharf  on  a  navigable  stream 
is  thus  held  to  be  property  which  can  not 
be  destroyed  or  its  value  impaired,  and  it 
is  property  the  exclusive  use  of  which  the 
owner  can  only  be  deprived  in  accordance 
with  established  law;  and  if  necessary 
that  it  or  any  part  of  it  to  be  taken  for  the 
public  use  by  shippers  or  rival  transpor- 
tation companies,  due  compensation  must 
be  made.  The  owner  of  a  private  wharf 
on  a  navigable  stream  does  not,  on  that 
account  only,  hold  it  by  a  different  title 
from  the  owner  of  any  other  property 
which  he  may  use  himself  or  permit  others 
when  he  may  select  to  use,  while,  at  the 
same  time,  denying  its  use  by  anyone  else. 
Weems  Steamboat  Co.  v.  People's  Steam- 
boat Co.,  214  U.  S.  345,  53  L.  Ed.  1024, 
29  S.   Ct.  661. 

609-82a.  Taking  for  private  use — Ul- 
terior public  advantage. — Xoble  State 
Bank  v.  Haskell,  219  U.  S.  104,  55  L.  Ed. 
112,  31  S.  Ct.  186,  followed  in  Shallen- 
berger  v.  First  State  Bank,  219  U.  S.  114, 
55  L.  Ed.  117,  31  S.  Ct.  189.  See.  also, 
Clark  V.  Nash,  198  U.  S.  361,  49  L.  Ed. 
1085,  25  S.  Ct.  076;  Strickley  v.  Highland 
Boy,  etc.,  Min.  Co.,  200  U.  S.  527,  531,  50 
L.  Ed.  581,  26  S.  Ct.  301;  Oftield  v.  New 
York,  etc.,  R.  Co.,  203  U.  S.  372.  51  L.  Ed. 
231,  27  S.  Ct.  72;  Bacon  v.  Walker,  204  U. 
S.  311,  315,  51  L.  Ed.  499,  27  S.  Ct.  289. 

Creation   of  depositor's   guaranty   fund. 
— See    post,    "Banks    and    I^>anking,    Crea- 
tion of   Depositor's   Guaranty   Fund,"  VI 
D,  2,  b,  (5),  (b),  (zz^). 


509 


609-616 


DUB  PROCESS  OF  LAW. 


Vol.  V. 


mately  a  judicial  question. ^^b  j^^^  when  the  use  to  which  the  property  taken  is 
applied  is  public,  the  propriety  or  expediency  of  the  appropriation  can  not  be 
called  in  question  by  any  other  authority.^-'^ 

(bb)  As  Affected  by  Local  Conditions;  Pozver  of  State  to  Declare  Purpose 
Public. — See  note  83. 

(11)  Railroads. — See,  generally,  post.  Eminent  Domain. 

Condemnation  for  Spur  Track  to  Reach  Private  Enterprise. — The  con- 
demnation of  land  by  a  railroad  company  for  a  spur  track  will  not  be  held  to  be 
for  a  private  use,  and  therefore  forbidden  by  Const.  U.  S.  Amend.  14,  where  the 
state  courts,  in  effect,  have  held  that  the  use  was  public,  on  evidence  tending  to 
show  that  the  spur  track  was  designed,  in  part  for  the  storage  of  cars  while  load- 
ing and  unloading,  and  to  relieve  the  congestion  of  business,  although  the  motive 
which  dictated  its  location  over  the  land  in  question  was  to  reach  a  private  indus- 
try, which  contributed  to  the  cost.^^^ 

(zz^)  Banks  and  Banking;  Creation  of  Depositors  Guaranty  Fund. — The  levy 
and  collection,  under  a  state  statute,  from  every  bank  existing  under  the  state 
laws,  of  an  assessment  based  upon  average  daily  deposits,  for  the  purpose  of 
creating  a  depositors'  guaranty  fund  to  secure  the  full  repayment  of  deposits  in 
case  any  such  bank  becomes  insolvent,  is  for  a  public  use,  although,  judged  from 
the  proximate  effect  of  the  taking,  the  use  seems  to  be  a  private  one^-^ 


609-82b.  Determination  of  character  of 
use — Function  of  court  and  legislature. — 

Hairston  v.  Danville,  etc..  R.  Co.,  208  U. 
S.  598,  606,  52  L.   Ed.  637,  28  S.  Ct.   331. 

609-82C.  Property  or  expediency  of 
taking. — Cincinnati  v.  Louisville,  etc.,  R. 
Co..  223  U.  S.  390,  404,  56  L.  Ed.  481,  32 
S.   Ct.   267. 

610-83.  Character  of  use  as  affected  by 
local  conditions — Power  of  state  to  de- 
clare purpose  public. — See,  also,  ante, 
"Mere  Possibility  of  Evil  or  Hardship  in 
Particular  Instances  Not  Sufficient  to  In- 
validate Law,"  II,  C,  6;  "Construed  in 
Light  of  Practical  Affairs;  Local  Condi- 
tions, Habits,  Customs  and  Traditions  of 
Particular  Communities,"  V,  F. 

The  federal  supreme  court,  while  en- 
forcing the  fourteenth  amendment,  will 
keep  in  view  the  diversity  of  local  con- 
ditions and  regard  with  great  respect 
the  judgments  of  the  state  courts  upon 
what  should  be  deemed  public  uses  in 
that  state.  Hairston  v.  Danville,  etc.,  R. 
Co.,  208  U.  S.  598,  607,  52  L.  Ed.  637,  28  S. 
Ct.   331. 

While  it  is  true  that  cases  may  arise 
where  the  federal  supreme  court  would 
decline  to  follow  the  state  courts  in  their 
determination  of  the  uses  for  which  land 
could  be  taken  by  the  right  of  eminent  do- 
main, no  case  is  recalled  where  that  court 
has  condemned  as  a  violation  of  the  four- 
teenth amendment  a  taking  upheld  by  the 
state  court  as  a  taking  for  public  uses  in 
conformity  with  its  laws.  Hairston  v.  Dan- 
ville, etc.,  R.  Co.,  208  U.  S.  598,  607.  52  L. 
Ed.   637,  28   S.   Ct.  331. 

613-95a.  Condemnation  of  land  for  spur 
track  to  reach  private  enterprise. — Hair- 
ston V.  Danville,  etc.,  R.  Co..  208  U.  S.  598, 
52  L.  Ed.  637,  28  S.  Ct.  331. 


The  uses  for  which  the  track  was  de- 
sired are  not  the  less  public  because  the 
motive  which  dictated  its  location  over 
this  particular  land  was  to  reach  a  private 
industry,  or  because  the  proprietors  of 
that  industry  contributed  in  any  way  to 
the  cost.  Hairston  v.  Danville,  etc.,  R.  Co., 
208  U.  S.  598,  608,  52  L.  Ed.  637,  28  S.  Ct. 
331. 

616-12a.  Banks  and  banking — Creation 
of  depositor's  guaranty  fund. — Noble 
State  Bank  v.  Haskell,  219  U.  S.  575,  55 
L.  Ed.  341,  31  S.  Ct.  -899;  S.  C,  219  U.  S. 
104,  55  L.  Ed.   112,  31  S.  Ct.   186. 

"We  fully  understand  the  practical  im- 
portance of  the  question  and  the  very 
powerful  argument  that  can  be  made 
against  the  wisdom  of  the  legislation,  but 
on  that  point  \ve  have  nothing  to  say,  as 
it  is  not  our  concern.  Clark  v.  Nash,  198 
U.  S.  361,  49  L.  Ed.  1085,  25  S.  Ct.  676; 
Strickley  v.  Highland  Boy,  etc.,  Min.  Co., 
200  U.  S.  527,  50  L.  Ed.  581,  26  S.  Ct.  301, 
etc.,  were  cited  to  establish,  not  that  prop- 
erty might  be  taken  for  a  private  use,  but 
that  among  the  public  uses  for  which  it 
might  be  taken  were  some  which,  if  looked 
at  onl)^  in  their  immediate  aspect,  accord- 
ing to  the  proximate  effect  of  the  taking, 
might  seem  to  be  private."  Noble  State 
Bank  v.  Haskell,  219  U.  S.  575,  580,  55  L. 
Ed.  341,  31  S.  Ct.  299. 

"Nevertheless,  notwithstanding  the  log- 
ical form  of  the  objection,  there  are  more 
powerful  considerations  on  the  other  side. 
In  the  first  place  it  is  established  by  a 
series  of  cases  that  an  ulterior  public  ad- 
vantage may  justify  a  comparatively  in- 
significant taking  of  private  property  for 
what,  in  its  immediate  purpose,  is  a  pri- 
vate use.  Clark  v.  Nash,  198  U.  S.  361,  49 
L.    Ed.    1085,    25    S.    Ct.    676;    Strickley   v.. 


510 


Vol.  V. 


DUE  PROCESS  OF  LAW. 


616-618 


E.  Due  Process  in  Judicial  and  Administrative  Proceedings — 1.  Gen- 
eral Rules  and  Principles — a.  Each  State  Prescribes  Its  Oicn  Procedure. — See 
notes  14,  16. 

b.  Requirement  Satisfied  by  the  Regular  Administration  of  Lazv  through  the 
Courts  of  Justice — (1)  Generally. — See  note  17. 


Highland  Boy,  etc.,  Min.  Co.,  200  U.  S. 
527.  531,  50  L.  Ed.  581,  26  S.  Ct.  301;  Of- 
field  V.  New  York,  etc..  R.  Co.,  203  U.  S. 
372,  51  L.  Ed.  231,  27  S.  Ct.  72;  Bacon  v. 
Walker,  204  U.  S.  311,  315,  51  L.  Ed.  499, 
27  S.  Ct.  289.  And  in  the  next,  it  would 
seem  that  there  may  be  other  cases  be- 
side the  every  day  one  of  taxation,  in 
which  the  share  of  each  party  in  the  bene- 
fit of  a  scheme  of  mutual  protection  is 
sufficient  compensation  for  the  correla- 
tive burden  that  it  is  compelled  to  as- 
sume. See  Ohio  Oil  Co.  v.  Indiana,  177  U. 
S.  190,  44  L.  Ed.  729.  At  least,  if  we  have 
a  case  within  the  reasonable  exercise  of 
the  police  power  as  above  explained,  no 
more  need  be  said."  Noble  State  Bank  v. 
Haskell,  219  U.  S.  104,  110,  55  L.  Ed.  112, 
31    S.    Ct.   1S6. 

616-14.  Each  state  prescribes  its  own 
procedure. — The  practice  of  the  state 
courts  in  acting  upon  matters  within  their 
jurisdiction  is  left  for  the  states  and  their 
courts  administering  their  laws  to  deter- 
mine. Waters-Pierce  Oil  Co.  v.  Texas,  No. 
2,  212  U.  S.  112,  118,  53  L.  Ed.  431,  29  S. 
Ct.  227;  Twining  v.  New  Jersey,  211  U.  S. 
78,  111,  53  L.  Ed.  97,  29  S.  Ct.  14;  Stand- 
ard Oil  Co.  V.  Missouri,  224  U.  S.  270,  56 
L.   Ed.  760,  32   S.   Ct.  406. 

For  example,  if  in  the  appointment  of 
a  receiver  the  court  saw  fit  to  act  upon 
the  testimony  already  heard  and  the  con- 
viction already  had  for  the  violation  of 
the  anti-trust  laws  of  the  state,  there  is 
nothing  in  the  federal  constitution  which 
prevents  it  so  doing.  Nor  does  the  time 
or  manner  in  which  the  state  court  saw- 
fit  to  approve  the  receiver's  bond  present 
any  question  under  the  fourteenth  amend- 
ment. Waters-Pierce  Oil  Co.  v.  Texas,  No. 
2,  212  U.  S.  112,  118,  53  L.  Ed.  431,  29  S. 
Ct.  227.  See  the  cases  cited  in  Waters- 
Pierce  Oil  Co.  V.  Texas.  No.  1,  212  U.  S. 
86,  53  L.  Ed.  417,  29  S.  Ct.  220. 

617-16.  As  to  forms  of  procedure — 
Fundamental  requirements — Notice  and 
opportunity  for  hearing. — The  fourteenth 
amendment  in  no  way  undertakes  to  con- 
trol the  power  of  a  state  to  determine  by 
what  process  legal  rights  may  be  asserted 
or  legal  obligations  be  enforced,  provided 
the  method  of  procedure  adopted  for  these 
purposes  gives  reasonable  notice  and  ac- 
cords fair  opportunity  to  be  heard  before 
the  issues  are  decided.  Subject  to  these 
two  fundamental  conditions,  which  seem 
to  be  universally  prescribed  in  all  systems 
of  law  established  by  civilized  countries, 
the  supreme  court  of  the  United  States 
has    up    to    this    time    sustained    all    state 


laws,  statutory  or  judicially  declared,  reg- 
ulating procedure,  evidence  and  methods 
of  trial,  and  held  them  to  be  consistent 
with  due  process  of  law.  Twining  v.  New 
Jersey,  211  U.  S.  78,  111,  53  L.  Ed.  97,  29 
S.  Ct.  14;  Louisville,  etc.,  R.  Co.  v. 
Schmidt,  177  U.  S.  230,  236,  44  L.  Ed.  747, 
20  S.  Ct.  622;  Jacob  v.  Roberts,  223  U.  S. 
261.  56  L.  Ed.  429,  32  S.  Ct.  303;  Simon  v. 
Craft,  182  U.  S.  427,  45  L.  Ed.  1165,  21  S. 
Ct.  836;  Standard  Oil  Co.  v.  Missouri, 
224  U.  S.  270,  56  L.  Ed.  760,  32  S.  Ct.  406; 
American  Land  Co.  v.  Zeiss,  219  U.  S.  47, 
55  L.   Ed.  82,  31  S.   Ct.  200. 

"The  limit  of  the  full  control  which  the 
state  has  in  the  proceedings  of  its  courts, 
both  in  civil  and  criminal  cases,  is  subject 
only  to  the  qualifications  that  such  pro- 
cedure must  not  work  a  denial  of  funda- 
mental rights  or  conflict  with  specific  and 
applicable  provisions  of  the  federal  con- 
stitution." Waters-Pierce  Oil  Co.  v.  Texas, 
No.  1,  212  U.  S.  86.  107,  53  L.  Ed.  417,  29 
S.  Ct.  220;  West  v.  Louisiana.  194  U.  S.  258, 
263,  48  L.  Ed.  965.  24  S.  Ct.  650,  and  see 
Davis  V.  Texas,  139  U.  S.  651,  35  L.  Ed. 
300;  Brown  v.  New  Jersey,  175  U.  S.  172, 
44  L.  Ed.  119,  20  L.  Ed.  77;  Allen  v. 
Georgia,  166  U.  S.  138,  140,  41  L.  Ed.  949, 
17  S.  Ct.  525;  In  re  Converse.  137  U.  S. 
624,  632,  34  L.  Ed.  796,  and  Twining  v.  New 
Terse}'.  211  U.  S.  78.  53  L.  Ed.  97.  29  S. 
Ct.  14. 

618-17.  Requirement  satisfied  by  regu- 
lar administration  of  law  through  the 
courts  of  justice. — The  cases  proceed  upon 
the  theory  that,  given  a  court  or  justice 
which  has  jurisdiction  and  acts,  not  arbi- 
traril}^  but  in  conformity  with  a  general 
law,  upon  evidence,  and  after  inquiry  made 
with  notice  to  the  parties  aflfected  and 
opportunity  to  be  heard,  then  all  the  re- 
quirements of  due  process,  so  far  as  it  re- 
lates to  procedure  in  court  and  methods 
of  trial  and  character  and  effect  of  evi- 
dence, are  complied  with.  Twining  v.  New 
Jerse3^  211  U.  S.  78,  111.  53  L.  Ed.  97,  29 
S.    Ct.   14. 

In  Allen  v.  Georgia,  166  U.  S.  138,  140, 
41  L.  Ed.  949,  17  S.  Ct.  525,  it  is  said: 
"Without  attempting  to  define  exactly  in 
what  due  process  of  law  consists,  it  is 
sufficient  to  say  that,  if  the  supreme  court 
of  a  state  has  acted  in  consonance  with  the 
constitutional  laws  of  a  state  and  its  own 
procedure,  it  could  be  in  every  exceptional 
circumstances  that  this  court  would  feel 
justified  in  saying  that  there  had  been  a 
failure  of  due  legal  process.  We  might 
ourselves  have  pursued  a  different  course 
in  this  case,  but  that  is  not  the  test.  The 


511 


619-621 


DUE  PROCESS  OF  LAW. 


Vol.  V. 


(2)  Qualification  of  Rule;  Regard  to  Be  Had  to  Substance  and  Not  to  Form.. 
— See  note  19. 

(3)  Same;  Mere  Error  Not  a  Denial  of  Due  Process. — See  note  24. 


plaintifif  in  error  must  have  been  deprived 
of  one  of  those  fundamental  rights,  the 
observance  of  which  is  indispensable  to 
the  liberty  of  the  citizen,  to  justify  our 
interference."  Jordan  v.  Commonwrealth, 
225  U.  S.  167,  56  L.  Ed.  1038,  33  S.  Ct. 
651. 

If  the  state  has  provided  adequate  ma- 
chinery for  the  ascertainment  of  compen- 
sation, upon  notice  and  hearing,  and  the 
record  discloses  no  ruling  of  law  which 
prevented  compensation  to  the  owner  for 
the  property  taken,  there  is  no  lack  of 
due  process.  Appleby  v.  Buffalo,  221  U. 
S.  524,  55  L.   Ed.  838,  31  S.  Ct.  699. 

619-19.  Qualification  of  rule — Regard 
to  be  had  to  substance  and  not  to  form. — 
An  adequate  opportunity  to  defend  will 
not  sustain,  as  affording  due  process  of 
law,  an  order  of  a  state  railroad  commis- 
sion requiring  trackage  connections  be- 
tween competing  railway  companies  for 
the  interchange  of  business,  if  the  order 
was  arbitrary  or  unreasonable,  and  not 
justified  by  any  public  necessity.  Oregon 
R.,  etc.,  Co.  V.  Fairchild,  224  U.  S.  510,  56 
L.    Ed.   863,   32   S.   Ct.   535. 

The  guaranty  of  the  fourteenth  amend- 
ment to  constitution  extends  to  the  pro- 
tection of  the  fundamental  rights,  to  the 
substance  of  the  order  as  well  as  to  the 
notice  and  hearing  which  precede  it.  "The 
mere  form  of  the  proceeding  insti- 
tuted against  the  owner,  even  if  he  be 
admitted  to  defend,  can  not  convert  the 
process  used  into  due  process  of  law,  if 
the  necessary  result  be  to  deprive  him 
of  his  property  without  compensation." 
Oregon  R.,  etc.,  Co.  v.  Fairchild,  22-t  U. 
S.  510,  56  L.  Ed.  863,  32  S.  Ct.  535;  Chi- 
cago, etc.,  R.  Co.  V.  Chicago,  166  U.  S. 
226,  236.  41  L.  Ed.  979.  17  S.  Ct.  581; 
Missouri  Pac.  R.  Co.  v.  Nebraska,  164  U. 
S.  403,  416,  41  L.  Ed.  489,  17  S.  Ct.  130; 
Appleby  v.  Buffalo,  221  U.  S.  524,  531,  55 
L.    Ed.   838,  31   S.   Ct.   699. 

621-24.  Mere  error  not  a  denial  of  due 
process. — An  erroneous  decision  of  a  state 
court  does  not  deprive  the  unsuccessful 
party  of  his  property  without  due  proc- 
ess of  law,  contrary  to  U.  S.  Const.,  14th 
A.mend.,  where  the  parties  have  been  fully 
heard  in  the  regular  course  of  judicial 
proceedings.  Bonner  v.  Gorman,  213  U. 
S.   86,   53   L.    Ed.   709,  29   S.   Ct.   483. 

"In  summing  up  the  matter,  the  court 
said:  'We  are  permitted  only  to  inquire 
whether  the  trial  court  prescribed  any 
rule  of  law  for  the  guidance  of  the  jury 
that  was  in  absolute  disregard  of  the  com- 
pany's right  to  just  compensation.  We 
say  "in  absolute  disregard  of  the  com- 
pany's   right    to    just    compensation,''    be- 


cause we  do  not  wish  to  be  understood  as 
holding  that  every  order  or  ruling  of  the 
state  court  in  a  case  like  this  may  be  re- 
viewed here,  notwithstanding  our  juris- 
diction, for  some  purposes,  is  beyond 
question.  Many  matters  may  occur  in  the 
progress  of  such  cases  that  do  not  neces- 
sarily involve,  in  any  substantial  sense, 
the  federal  right  alleged  to  have  been 
denied;  and  in  respect  of  such  matters, 
that  which  is  done  or  omitted  to  be  done 
by  the  state  court  may  constitute  only  er- 
ror in  the  administration  of  the  law  under 
which  the  proceedings  were  instituted.' " 
Appleby  v.  Buffalo,  221  U.  S.  524,  531,  55 
L.   Ed.  838,  31  S.  Ct.  699. 

"The  only  assignment  of  error  which  is 
here  open  for  review  does  not  show  that 
the  court  below,  by  any  ruling  of  law,  de- 
prived the  owner  of  the  right  of  compen- 
sation for  his  property.  The  alleged  de- 
nial of  federal  right  rests  upon  the  asser- 
tion that  the  damages  were  nominal,  while 
the  property  taken  was  of  greater  value. 
But,  as  this  court  has  heretofore  held,  if 
the  state  has  provided  adequate  machin- 
ery for  the  ascertainment  of  compensa- 
tion, upon  notice  and  hearing,  and  the 
record  discloses  no  ruling  of  law  which 
prevented  compensation  to  the  owner  for 
the  property  taken,  there  is  no  lack  of  due 
process."  Appleby  v.  Buffalo,  221  U.  S. 
524,  532,  55  L.  Ed.  838,  31  S.  Ct  699. 

Due  process  of  law  does  not  assure  to 
a  taxpayer  the  interpretation  of  state 
legislation  by  the  executive  officers  of  a 
'  state  as  against  its  interpretation  by  the 
courts  of  the  state,  or  relief  from  the  con- 
sequences of  a  misinterpretation  by  either. 
Judgment  (1906)  94  S.  W.  654,  29  Ky.  Law 
Rep.  705,  affirmed.  Thompson  v.  Com- 
monwealth. 209  U.  S.  340,  52  L.  Ed.  822, 
28  S.  Ct.  533. 

In  other  words,  a  person  relying  upon 
the  interpretation  given  an  act  l3y  the  ex- 
ecutive officers  of  the  state  must  take  his 
chances  upon  their  decision  being  over- 
ruled by  a  different  construction  placed 
upon  the  act  by  the  judicial  officers  of  the 
state;  and  the  subsequent  enforcement  of 
the  act  against  him  according  to  the  con- 
struction placed  upon  it  by  the  judicial  of- 
ficers of  the  state  is  not  a  denial  of  due 
process  of  law.  Thompson  v.  Common- 
wealth, 209  U.  S.  340,  52  L.  Ed.  822,  28  S. 
Ct.  533,  affirmed  29  Ky.  Law  Rep.  705,  94 
S.  W.  654. 

Thus,  where  the  state  law  required  the 
'varehouseman  to  .pay  the  taxes  upon  liq- 
uors stored  in  a  bonded  warehouse,  and 
gave  him  a  lien  upon  the  liquors  for  taxes 
and  interest  paid,  and  the  warehouseman, 
relying  upon  the  construction  placed  upon 


513 


Vol.  V. 


DUB  PROCESS  OF  LAW. 


625-631 


c.  Established  Methods  A'ot  Oz'ertunied ;  Process  Sufficient  if  Sanctioned  by 
Coinnwn-La'iv  Usage. — See  note  31. 

d.  States  Not  Restricted  to  C omiiion-La'iv  Methods;  Due  Process  Not  De- 
termined by  Matter  of  Age. — See  note  33. 

e.  But  State  Can  Not  Make  Anything  Due  Process  It  May  Choose  to  Declare 
Such. — See  note  38. 

e^.  Due  Process  Dependent  upon  Circumstances. — It  is  familiar  that  what  is 
due  process  of  law  depends  on  circumstances.  It  varies  with  the  subject  matter 
and  the  necessities  of  the  situation.  Thus,  summary  proceedings  suffice  for  taxes, 
and  executive  decisions  for  the  exclusion  of  aliens  from  the  country  \-^^^  while  as 
to  those  in  the  military  or  naval  service  of  the  United  States  the  military  law  is 
due  process.'^ ■'^" 

f.  Limitations  upon  Legislative  Pouers  i^'ith  Respect  to  Remedies  and  Forms 
of  Procedure — (1  )  Generally;  Requirement  Satisfied  by  Regular  Course  of  Pro- 
ceedings before  a  Competent  Tribunal. — See  ante,  "Requirement  Satisfied  by  the 
Regular  Administration  of  Law  through  the  Courts  of  Justice/'  VI,  E,  1,  b,  et 
seq. ;  "Due  Process  Dependent  upon  Circumstances,"  VI,  E,  1,  t^A. 

(2)  Judicial  Proceeding  Not  Alzcays  Required. — See  notes  45,  46,  47,  48. 


the  act  by  the  executive  and  administra- 
tive officio  of  the  state,  paid  the  taxes 
without  paying  any  interest,  it  was  held 
that  the  state  was  not  estopped  from  col- 
lecting the  interest  required  by  a  proper 
construction  of  the  statute,  notwithstand- 
ing the  liquors  had,  since  the  previous 
payment,  been  withdrawn  from  the  ware- 
house, and  that,  in  so  doing,  it  did  not 
deprive  the  warehouseman  of  his  prop- 
erty without  due  process  of  law  in  vio- 
lation of  the  fourteenth  amendment. 
Thompson  f.  Commonwealth,  209  U.  S. 
340,  52  L.  Ed.  822,  28  S.  Ct.  533,  affirmed 
29  Ky.  Law  Rep.  705,  94  S.  W.  654. 

625-31.  Established  methods  not  over- 
turned— Sufficient  if  sanctioned  by  com- 
mon-law usage. — What  is  due  process  of 
law  may  be  ascertained  by  an  examination 
of  those  settled  usages  and  modes  of  pro- 
ceedings existing  in  the  common  and 
statute  law  of  England  before  the  emi- 
gration of  our  ancestors,  and  shown  not 
to  have  been  unsuited  to  their  civil  and 
political  condition  by  having  been  acted 
on  by  them  after  the  settlement  of  this 
country.  Twining  Z'.  New  Jersey,  211  U. 
S.  78,  53  L.  Ed.  97,  29  S.  Ct.  14. 

626-33.  State  not  restricted  to  common- 
law  usage. — A  procedure  settled  in  Eng- 
lish lav/  at  the  time  of  the  emigration,  and 
brought  to  this  country,  and  practiced  by 
our  ancestors,  is  not  an  essential  element 
of  due  process  of  law.  If  it  were,  the  pro- 
cedure of  the  first  half  of  the  seventeenth 
century  would  be  fastened  upon  the  Amer- 
ican jurisprudence  like  a  straight  jacket, 
only  to  be  unloosed  by  constitutional 
amendment.  Twining  v.  New  Jersey,  211 
U.  S.  78,  53  L.  Ed.  97,  29  S.  Ct.  14. 

627-38.  But  state  can  not  make  due 
process  anything  it  'may  choose. — Con- 
sistently with  the  requirements  of  due 
process,  no  change  in  ancient  procedure 
can  be  made  which  disregards  those  fun- 
damental    principles,     to     be     ascertained 

12  U  S   Enc— 33  513 


from  time  to  time  by  judicial  action,  which 
have  relation  to  process  of  law,  and  pro- 
tect the  citizen  in  his  private  right,  and 
guard  him  against  the  arbitrary  action  of 
government.  Twining  i'.  New  Jersej\  211 
U.  S.  78,  53  L.  Ed.  97,  29  S.  Ct.  14. 

627-38a.  Due  process  dependent  upon 
circumstances. — See,  also,  post,  "Judicial 
Proceeding  Not  Always  Required,"  VI, 
E,  1,  f.  Moyer  v.  Peabody,  212  U.  S.  78, 
84,  53  L.  Ed.  410,  29  S.  Ct.  235,  citing  Mur- 
ray V.  Hoboken,  etc..  Imp.  Co.,  18  How. 
272,  15  L.  Ed.  372;  United  States  v.  Ju 
Toy,  198  U.  S.  253,  263,  49  L.  Ed.  1040. 

627-38b.  Same — As  to  those  in  the  mili- 
tary or  naval  service. — Reaves  f.  Ains- 
worth,  219  U.  S.  296,  55  L.  Ed.  255,  31  S. 
Ct.  230.  See,  also,  ante,  "Persons  in  Naval 
or  Military  Service,"  III,  E. 

629-45.  Judicial  proceedings  not  always 
required. — See  ante,  "Due  Process  De- 
pendent upon  Circumstances,"  VI,  E,  1,  e. 

630-46.  Administration  of  executive  de- 
partments is  due  process. — It  is  within  the 
competency  of  congress,  when  legislating 
as  to  matters  exclusively  within  its  con- 
trol, to  impose  appropriate  obligations, 
and  sanction  their  enforcement  by  rea- 
sonable money  penalties,  giving  to  execu- 
tive officers  the  power  to  enforce  such 
penalties  without  the  necessity  of  invok- 
ing the  judicial  power.  Oceanic  Steam 
Nav.  Co.  r.  Stranaham,  214  U.  S.  320,  53 
L.  Ed.  1013,  29  S.  Ct.  671. 

631-47.  Same — State  boards  and  officers. 
— Where  the  taking  is  under  an  adminis- 
trative regulation,  the  defendant  must  not 
be  denied  the  right  to  show  that,  as  a 
matter  of  law,  the  order  was  so  arbitrary, 
unjust,  or  unreasonable  as  to  amount  to 
a  deprivation  of  property  in  violation  of 
the  fourteenth  amendment.  Ore.gon  R., 
etc.,  Co.  V.  Fairchild,  224  U.  S.  510,  56 
L.  Ed.  863,  32  S.  Ct.  535,  and  cases  cited. 

631-48.  Illustrations — Taxation — Exclu- 
sion    of     aliens. — Summary     proceedings 


636-637 


DUB  PROCESS  OF  LAW. 


Vol.  V. 


(3)  Legislative  Judgments  and  Decrees. — The  state  can  not  make  a  legislative 
act  res  judicata  by  providing  for  notice  and  hearing  of  interested  persons  before 
the  enactment  of  the  law.  Nor  can  a  citizen  be  deprived  of  the  right  to  resort  to 
the  courts  for  the  purpose  of  redressing  the  prosecution  of  an  act  upon  the 
ground  that  he  was  negligent  or  guilty  of  laches  in  not  appearing  before  the  leg- 
islative body  and  opposing  the  enactment  of  the  act  of  which  he  complains.  On 
the  other  hand  it  may  be  said  that  a  citizen  has  the  right  to  assume  that  the  legis- 
lature will  proceed  with  due  respect  to  constitutional  restrictions,  and  may  safely 
rest  upon  the  assumption  that  he  is  not  bound  to  be  continually  on  the  alert 
against  the  enactment  of  unconstitutional  legislation,  and  that  he  will  have  the 
right,  if  such  legislation  should  be  enacted,  to  resort  to  the  courts  for  protection 
against  the  same.^^^ 

2.  As  Guaranteeing  Equal  and  Impartial  Justice  to  All  Persons — b.  Re- 
quires an  Impartial  Tribunal. — See  note  59. 


suffice  for  taxes,  and  executive  decisions 
for  exclusion  from  the  country.  Mover 
V.  Peabody,  212  U.  S.  78,  84,  53  L.  Ed.  410, 
29  S.  Ct.  235;  Murray  v.  Hoboken,  etc.. 
Imp.  Co.,  18  How.  272,  15  L.  Ed.  372; 
United  States  v.  Ju  Toy.  198  U.  S.  253, 
263.   49    L.    Ed.    1040. 

Same — As  to  persons  in  military  or 
naval  service. — To  those  in  the  military 
or  naval  service  of  the  United  States,  the 
military  law  is  due  process.  Reaves  ■'<.'. 
Ainsworth,  219  U.  S.  296,  55  L.  Ed.  255,  31 
S.  Ct.  230. 

Same — Powers  of  secretary  of  war  with 
respect  to  bridges  over  interstate  streams. 
—The  secretary  of  war  is  not  invested 
with  arbitrary  power  in  the  premises  by 
the  provision  of  the  River  and  Harbor 
Act  of  March  3,  1899,  §  18,  empowering 
him,  when  satisfied  that  a  bridge  over  an 
interstate  waterway  is  an  unreasonable 
obstruction  to  navigation,  to  require  such 
changes  or  alterations  as  will  render  navi- 
gation reasonably  free,  easy,  and  unob- 
structed, since  he  is  bound,  before  making 
any  decision  or  taking  final  action,  to  no- 
tify the  parties  interested  of  any  proposed 
investigation  by  him,  to  give  them  an 
opportunity  to  be  heard,  and  to  allow 
reasonable  time  to  make  such  alterations 
as  he  finds  to  be  necessary  to  free  naviga- 
tion. Monongahela  Bridge  Co.  v.  United 
States,  216  U.  S.  177,  54  L.  Ed.  435,  30  S. 
Ct.  356. 

Same — Executive  process  in  time  of 
war,  insurrection,  great  public  danger,  etc. 
— When  it  conies  to  a  decision  by  the 
head  of  the  state  upon  a  matter  involving 
its  life,  the  ordinary  rights  of  individuals 
must  yield  to  what  he  deems  the  necessi- 
ties of  the  moment.  Public  danger  war- 
rants the  substitution  of  executive  process 
for  judicial  process.  Moyer  v.  Peabody, 
212  U.  S.  78,  53  L.  Ed.  410,  29  S.  Ct.  235. 
See  Keely  v.  Sanders,  99  U.  S.  441.  446,  25 
L.  Ed.  327. 

The  governor's  declaration  that  a  state 
of  insurrection  existed  is  conclusive  of 
that  fact.  Moyer  v.  Peabody,  212  U.  S.  78, 
83,  53  L.  Ed.  410,  29  S.  Ct,  235. 


So  long  as  such  arrests  are  made  in 
good  faith  and  in  the  honest  belief  that 
they  are  needed  in  order  to  head  the  in- 
surrection of¥,  the  governor  is  the  final 
judge  and  can  not  be  subjected  to  an  ac- 
tion after  he  is  out  of  office  on  the  ground 
that  he  had  not  reasonable  ground  for  his 
belief.  Moyer  v.  Peabody,  212  U.  S.  78,  85, 
53   L.  Ed.  410,  29  S.  Ct.  235. 

This  is  true  not  only  with  regard  to 
killing  men  in  the  actual  clash  of  arms, 
but  the  same  is  true  of  temporary  de- 
tention to  prevent  apprehended  harm. 
Moyer  v.  Peabody,  212  U.  S.  78,  85,  53  L. 
Ed.  410,  29  S.  Ct.  235. 

Imprisonment  for  two  and  one-half 
months  under  the  order  of  the  governor 
of  a  state,  without  sufficient  reason,  but  in 
good  faith  in  the  exercise  of  his  power 
under  the  state  constitution  and  laws  to 
call  upon  the  military  arm  of  the  state 
government  to  suppress  an  insurrection, 
does  not  deprive  the  person  imprisoned 
of  his  liberty  without  due  process  of  law. 
Moyer  %•.  Peabody,  212  U.  S.  78,  53  L.  Ed. 
410,  29   S.  Ct.  235. 

636-55a.  Legislative  judgment  and  de- 
crees— Notice  and  hearing  before  legis- 
lature previous  to  enactment  of  statute. — 
Prentis  v.  Atlantic  Coast  Line  Co.,  211  U. 
S.  210,  53  L.  Ed.  150,  29  S.  Ct.  67. 

For  example,  the  making  or  prescribing 
of  rates  is  a  legislative  function  whether 
done  by  the  legislature  or  a  state  railroad 
corporation  commission;  and  the  decision 
or  order  of  such  body  in  prescribing  the 
rates  can  not  be  made  res  judicata,  and  a 
citizen  deprived  of  the  right  to  resort  to 
the  courts  to  protect  his  constitutional 
rights,  by  reason  of  the  fact  that  he  was 
given  notice  and  opportunity  to  be  heard, 
before  the  commission  or  legislative  body, 
before  the  proposed  rule  or  order  pre- 
scribing the  rates  was  promulgated.  Such 
a  decision  is  not  judicial  nor  rendered  in 
a  judicial  proceeding,  since  litigation  can 
not  arise  until  legislation  has  been  en- 
acted. Prentis  v.  Atlantic  Coast  Line  Co., 
211  U.  S.  210,  53  L.  Ed.  150,  29  S.  Ct.  67. 

637-59.    Powers    of    municipal    corpora- 


514  . 


Vol.  V. 


DUB  PROCESS  OP  LAW. 


637-641 


c.  Forbids  Arbitrary  Laws  and  Proceedings. — See  notes  60,  65. 
e.  Preferring  Resident  Creditors. — See  note  70. 

3.  Notice,  Hearing,  Jurisdiction  as  Essential  to  Due  Process  of  Law — a. 
General  Rule  as  to  Jurisdiction,  Notice  and  Opportunitx  for  Hearing. — See  notes 

72,  74. 


tions  to  levy  assessments,  fix  rates,  etc. — 

The  appellant  further  insists  that  the  city 
council  in  prescribing  rates  is  not  an  im- 
partial tribunal,  because,  in  effect,  it  is  a 
judge  in  its  own  case.  It  is  too  late,  how- 
ever, after  the  many  decisions  of  the  fed- 
eral supreme  court,  which  have  either  de- 
cided or  recognized  that  the  governing 
body  of  a  city  may  be  authorized  to  ex- 
ercise the  rate-making  function,  to  ask  for 
the  reconsideration  of  that  proposition. 
Home  Tel.,  etc.,  Co.  v.  Los  Angeles,  211 
U.  S.  265,  279,  53  L.  Ed.  176,  29  S.  Ct.  50. 

And  it  is  not  material  that  by  the 
charter  of  the  city  twenty-five  per  cent 
of  the  electors  may  recall  a  member  of 
the  council  and  require  him  again  to  stand 
for  election,  for  he,  nevertheless,  takes 
part  in  the  rate-making  function  under 
his,  personal  responsibility  as  an  officer, 
and  it  can  not  be  presumed,  as  matter  of 
laAv,  that  the  deeper  sense  of  dependence 
upon  the  will  of  the  people,  which  this 
feature  of  his  tenure  of  office  brings  to 
him,  will  distort  his  judgment  and  sense 
of  justice.  Home  Tel.,  etc.,  Co.  v.  Los 
Angeles,  211  U.  S.  265,  279,  53  L.  Ed.  176, 
29   S.    Ct.   50. 

637-60.  Forbids  arbitrary  laws  and  pro- 
ceedings.— See,  also,  ante,  "Qualification 
of  Rule;  Regard  to  Be  Had  to  Substance 
and  Not  to  Form,"  VI,  E,  1,  b,  (2). 

Consistently  with  the  requirements  of 
due  process,  no  change  in  ancient  pro- 
cedure can  be  made  which  disregards 
those  fundamental  principles,  to  be  as- 
certained from  time  to  time  by  judicial 
action,  which  have  relation  to  process  of 
law,  and  protect  the  citizen  in  his  priv- 
ate right,  and  guard  him  against  the  arbi- 
trary action  of  government.  Twining  z: 
New  Jersey,  211  U.  S.  78,  53  L.  Ed.  97, 
29  S.   Ct.   14. 

Where  the  taking  is  under  an  adminis- 
trative regulation,  the  defendant  must  not 
be  denied  the  right  to  show  that,  as  mat- 
ter of  law,  the  order  was  so  arbitrary, 
unjust,  or  unreasonable  as  to  amount  to 
a  deprivation  of  property  in  violation  of 
the  fourteenth  amendment.  Oregon  R., 
etc.,  Co.  V.  Fairchild,  224  U.  S.  510,  56  L. 
Ed.  863,  32  S.  Ct.  535:  Chicago,  etc.,  R. 
Co.  V.  Minnesota,  134  U.  S.  418,  33  L. 
Ed.  970,  10  S.  Ct.  462,  702;  Smyth  v.  Ames, 
169  U.  S.  466,  43  L.  Ed.  819,  18  S.  Ct.  418; 
Chicago,  etc.,  R.  Co.  z'.  Tompkins,  176  U. 
S.  167,  173,  44  L.   Ed.  417,  20  S.   Ct.  336. 

Same — Powers  of  secretary  of  war  with 
respect  to  bridges  over  navigable  streams. 
—The  Act  of  March  3.  1899,  §  18,  did  not 
invest  the  secretary  of  war  with  arbitrary 


power  in  the  premises,  since,  in  reference 
to  any  bridge  alleged  to  constitute  an  un- 
reasonable obstruction  to  navigation,  he 
v/as  bound,  before  making  any  decision 
or  taking  final  action,  to  notify  the  par- 
ties interested  of  any  proposed  investi- 
gation by  him,  give  them  an  opportunity 
to  be  heard,  and  allow  reasonable  time 
to  make  such  alterations  as  he  found  to 
be  necessary  to  free  navigation.  Monon- 
gahela  Bridge  Co.  v.  United  States,  216 
U.    S.   177,   54   L.   Ed.   435,   30   S.   Ct.   356. 

Fine  and  ouster  of  foreign  corporation 
in  original  proceeding  in  state  court  of 
last  resort  as  an  arbitrary  proceeding. — 
See  post,  ''As  to  Form  of  Judgment  or 
Decree,"  VI,  E,  15. 

639-65.  Courts  to  interfere  only  upon 
abuse  of  power — Individual  hardship  not 
sufficient. — See  ante,  "Mere  Possibility  of 
Evil  or  Hardship  in  Particular  Instances 
Not  Sufficient  to  Invalidate  Law,"  II,  C,  6. 

340-70.  Preferring  resident  creditors. — 
A  German  corporation  is  not  deprived  of 
its  property  without  due  process  of  law, 
contrary  to  Const.  U.  S.  Amend.  14, 
by  the  refusal  of  a  state  court,  on  grounds 
of  public  policy,  to  apply  the  doctrine  of 
comity  so  as  to  subject  by  attachment,  to 
the  payment  of  an  indebtedness  due  the 
corporation  from  a  German  subject,  a 
fund  within  the  state  to  which  one  of  its 
own  citizens  asserts  a  claim,  where  the 
effect  of  judgment  in  favor  of  the  cor- 
poration would  be  to  remove  the  fund  to 
a  foreign  country,  there  to  be  administered 
in  favor  of  the  foreign  creditors.  Judg- 
ment, The  Disconto  Gesellschaft  t'.  Terlin- 
den  (1906),  106  N.  W.  821,  127  Wis.  651, 
115  Am.  St.  Rep.  1063,  affirmed.  Disconto 
Gesellschaft  v.  Umbreit.  208  U.  S.  570,  52 
L.   Ed.  625,  28   S.   Ct.   337. 

In  determining  that  the  policy  of  Wis- 
consin would  not  permit  the  property  to 
be  thus  appropriated  to  the  benefit  of 
alien  creditors  as  against  the  demands 
of  the  citizens  of  the  state,  the  supreme 
court  of  Wisconsin  has  done  no  more 
than  has  been  frequently  done  by  na- 
tions and  states  in  refusing  to  exercise 
the  doctrine  of  comity  in  such  wise  as  to 
impair  the  right  of  local  creditors  to  sub- 
ject local  property  to  their  just  claims. 
We  fail  to  perceive  how  this  application 
of  a  well  known  rule  can  be  said  to  d*"- 
prive  the  plaintiff  in  error  of  its  property 
without  due  process  of  law.  Disconto 
Gesellschaft  v.  Umbreit,  208  U.  S.  570, 
580,  52   L.   Ed.  625.  28  S.   Ct.  337. 

641-72.  Notice,  hearing  and  jurisdiction 
— General    rule. — See,    also,    ante,    "Legis- 


5i; 


641-644 


DUE  PROCESS  OF  LAW. 


\o\.  \. 


b.  Qualification  of  Rule;  Notice  and  Hearing  Xot  Required  unless  Necessary 
for  the  Protection  of  the  Parties — (3)  As  to  Statute  or  Ordinance  Fixing  Rates 
for  Use  of  Public  Utilities. — See  note  78a. 


lative  Judgments  and  Decrees,"  VI,  E,  1, 
f,    (3). 

The  essential  element  of  due  process  of 
law  is  an  opportunity  to  be  heard,  and  a 
necessary  condition  of  such  opportunity 
is  notice.  Jacob  f.  Roberts.  223  U.  S.  261, 
56  L.  Ed.  429,  32  S.  Ct.  303;  Simon  z'. 
Craft.  182  U.  S.  427,  45  L.  Ed.  1165,  21  S. 
Ct.  836;  Jordan  z:  Massachusetts.  225  U. 
S.  167,  56  L.  Ed.  1038,  32  S.  Ct.  651; 
Twining  z'.  New  Jersey,  211  U.  S.  78,  111, 
53  L.  Ed.  97,  29  S.  Ct.  14;  Standard  Oil 
Co.  r.  Missouri,  224  U.  S.  270,  56  L.  Ed. 
760.  32  S.  Ct.  406;  American  Land  Co.  z: 
Zeiss,  219  U.  S.  47,  55  L.  Ed.  82,  31  S.  Ct. 
200. 

Due  process  requires  that  the  cotirt 
which  assumes  to  determine  the  rights  of 
parties  shall  have  jurisdiction  and  that 
there  shall  be  reasonaI)le  notice  and  a 
fair  opportunity  for  hearing  given  the 
parties.  Subject  to  these  two  fundamental 
conditions,  which  seem  to  be  universally 
prescribed  in  all  systems  of  law  estab- 
lished by  civilized  countries,  this  court 
has,  up  to  this  time,  sustained  all  state 
laws,  statutory  or  judicially  declared, 
regtilating  procedure,  evidence,  and 
methods  of  trials,  and  held  them  to  be 
consistent  with  due  process  of  law.  Twin- 
ing v.  New  Jersey,  211  U.  S.  78,  53  L.  Ed. 
97,  29  S.  Ct.  14;  American  Land  Co.  z: 
Zeiss,  219  U.  S.  47,  55  L.  Ed.  82,  31  S.  Ct. 
200;    Jordan  v.    Massachusetts,    225  U.    S. 

167,  56  L.  Ed.  1038,  32  S.  Ct.  651;  Standard 
Oil  Co.  z:  Missouri,  224  U.  S.  270,  56  L. 
Ed.  760.  32  S.  Ct.  406. 

The  right  to  be  heard  before  property 
is  taken  or  rights  or  privileges  withdrawn, 
which  have  been  previously  legally 
awarded,  is  of  the  essence  of  due  process 
of  law.  It  is  unnecessary  to  recite  the 
decisions  in  which  this  principle  has  been 
repeatedly  recognized.  It  is  enough  to 
say  that  its  binding  obligation  has  never 
been  questioned  in  the  federal  supreme 
cotirt.  Garfield  z:  Goldsby,  211  U.  S. 
249.  262,  53  L.  Ed.  168.  29  S.  Ct.  62,  citing 
Garfield  v.  Allison.  211  U.  S.  264,  53  L. 
Ed.  176.  29  S.  Ct.  67. 

Right  acquired  by  judicial  or  adminis- 
trative proceeding. — In  the  extended  dis- 
cussion which  has  been  had  tipon  the 
meaning  and  extent  of.  constitutional  pro- 
tection against  action  without  due  process 
of  law,  it  has  always  been  recognized  that 
one  who  has  acquired  rights  by  an  ad- 
ministrative or  judicial  proceeding  can 
not  be  deprived  of  them  without  notice 
and  an  opportunity  to  be  heard.  Garfield 
z'.   Goldsbv,   211   U.    S.   249.   262,   53    L.    Ed. 

168,  29  S.  Ct.  62,  citing  Garfield  z'.  Allison, 
211   U.   S.  264,   53   L.    Ed.   176,   29   S.   Ct.   67. 


641-74.  Judgment  not  due  process  if 
rendered  without  jurisdiction. — Due  proc- 
ess requires  that  the  court  which  assumes 
to  determine  the  rights  of  parties  shall 
have  jurisdiction  (Pennoyer  z\  Nefif,  95 
U.  S.  714,  733.  24  L.  Ed.  565;  Scott  v.  Mc- 
Neal,  154  U.  S.  34,  38  L.  Ed.  896,  14  S.  Ct. 
1108;  Old  Wayne  Mut.  Life  Ass'n  v.  Mc- 
Donough,  204  U.  S.  8.  51  L.  Ed.  345,  27  S. 
Ct.  236),  and  that  there  shall  be  notice 
and  opportunity  for  hearing  given  parties. 
Twining  z\  New  Jersey,  211  U.  S.  78,  53 
L.  Ed.  97,  29  S.  Ct.  14,  citing  Hovey  v. 
Elliott,  167  U.  S.  409,  42  L.  Ed.  215.  17  S. 
Ct.  841;  Roller  z:  Holly,  176  U.  S.  398,  44 
L.  Ed.  520,  20  S.  Ct.  410.  And  see,  also, 
Londoner  z:  Denver,  210  U.  S.  373,  52  L. 
Ed.   1103.   28   S.   Ct.   708. 

Requires  jurisdiction  of  subject  matter 
as  well  as  parties. — It  is  essential  to  the 
validit}^  of  any  judgment  that  the  court 
rendering  it  should  have  had  jurisdiction 
not  only  of  the  parties,  but  of  the  sub- 
ject matt'er.  Standard  Oil  Co.  v.  Mis- 
souri, 224  U.  S.  270.  56  L.  Ed.  760.  32  S. 
Ct.    406. 

Same — Construction  of  state  law. — But 
where  the  contention  is  that  under  the 
provisions  of  the  state  constitution  and 
laws  the  court  had  no  jurisdiction  of  the 
cause,  that  question  is  conclusively  set- 
tled by  the  decision  of  the  state  court  of 
last  resort  construing  its  own  constitution 
and  laws.  Standard  Oil  Co.  v.  Missouri, 
224  U.  S.  270.  56  L.  Ed.  760.  32  S.  Ct.  406. 
See,  also,  ante,  "Decision  of  State  Court 
Conclusive  as  to  Whether  Act  or  Proceed- 
ing Was  in  Conformitv  to  State  Law  and 
Practice."  VI.    B,   4. 

644-78a.  Owners  of  public  utilities  en- 
titled to  notice  of  proceeding  to  fix  lates. 
— See.  also,  ante.  "Legislative  Judgments 
and  Decrees,"  VI.  E,  1,  f,  (3).  And  see 
post,  POLICE  POWER. 

Rate  regulation  is  purely  a  legislative 
function  and,  even  where  exercised  by  a 
subordinate  body  upon  which  it  is  con- 
ferred, the  notice  and  hearing  essential 
in  judicial  proceedings  and,  for  peculiar 
reasons,  in  some  forms  of  taxation 
(Londoner  z:  Denver,  210  U.  S.  373,  52 
L.  Ed.  1103.  28  S.  Ct.  708)  would  not 
seem  to  be  indispensable.  Home  Tel.  Co. 
z'.  Los  Angeles,  211  U.  S.  265,  278,  53  L. 
Ed.   176,  29   S.   Ct.   50. 

Conceding,  what  is  not  decided,  that  the 
company  affected  is  entitled  to  be  heard 
in  the  proceeding  to  prescribe  the  rates. 
Municipal  ordinances  fixing  telephone 
rates  do  not  denj-  the  due  process  of 
law  guaranteed  by  Const.  U.  S.  Amend. 
14,  because  the  section  of  the  municipal 
charter  under  the  authority  of  which  the}' 


516 


\'ol.  \' 


DUE  PROCESS  OF  LAW 


644 


(5)  Necessity  for  Xoticc  in  Tax  Proceedings.- — See  post,  Taxation. 
d.   The   Right  to   Xoticc   Implies  the  Right  to   Appear  and   Be   Heard. — See 
note  81. 


were  enacted  does  not  expressly  provide 
for  notice  and  hearing,  where  both  notice 
and  an  opportunity  to  be  heard  were  in 
fact  accorded  by  ordinances  providing 
that  the  rates  be  fixed  at  a  meeting  of  the 
city  council  held  in  Februarj-  in  each  year, 
and  requiring  the  telephone  company  to 
furnish  the  city  council  annualh"  in  that 
month  a  statement  of  its  receipts,  expend- 
itures, and  property  employed  in  the 
business.  Decree  (C.  C.  1907),  155  Fed. 
554,  affirmed.  Home  Tel.,  etc.,  Co.  v.  Los 
Angeles,  211  U.  S.  265,  53  L.  Ed.  176,  29 
S.   Ct.  50. 

Where  an  ordinance  of  the  city  provided 
that  the  rates  should  Ije  fixed  at  a  regular 
and  special  meeting  of  the  city  council 
held  during  the  month  of  February  of 
each  year,  and  another  ordinance,  re- 
quired the  telephone  company  to  render 
annually,  in  the  month  of  February,  to 
the  city  council  a  statement  of  its  re- 
ceipts, expenditures  and  property  em- 
ployed in  the  business,  facts  which  would 
be  material  on  the  question  of  fixing  rea- 
sonable rates,  sufficient  notice  and  hear- 
ing were  afforded  to  the  company,  if  it 
had  chosen  to  avail  itself  of  them,  sup- 
posing, what  is  not  decided,  that  notice 
and  opportunity  for  hearing  were  essen- 
tial to  due  process  of  law.  Home  Tel , 
etc.,  Co.  v.  Los  Angeles,  211  U.  S.  235, 
278,  53  L.  Ed.   176.  29  S.  Ct.  50. 

"H  notice  and  opportunity  to  be  heard 
upon  the  proceeding  to  fix  rates  were  in- 
dispensable, which  we  do  not  decide,  it 
is  enough  that,  although  the  charter  be 
silent,  such  notice  and  hearing  were  af- 
forded by  ordinance,  as  in  this  case.'" 
Home  Tel.,  etc..  Co.  z'.  Los  Angeles,  211 
U.  S.  265,  279,  53  L.  Ed.  176,  29  S.  Ct.  50. 
So.  it  was  held  in  Paulsen  t'.  Portland.  149 
U.   S.  30.  38,   37  L.    Ed.   637. 

Legislature  can  not  preclude  a  resort 
to  the  courts  by  providing  for  notice  and 
hearing  before  enactment  of  statute  or 
promulgation  of  order. — The  state  can  not 
make  a  legislative  act  res  judicata  by  pro- 
viding for  notice  and  hearing  of  interested 
persons  before  the  enactment  of  the  law. 
Xor  can  a  citizen  be  deprived  of  the  right 
to  resort  to  the  courts  for  the  purpose  of 
redressing  the  prosecution  of  an  act  upon 
the  ground  that  he  was  negligent  or 
guilty  of  laches  in  not  appearing  before 
the  legislative  body  and  opposing  the  en- 
actinent  of  the  act  of  which  he  com- 
plains. On  the  other  hand  it  may  be  said 
that  a  citizen  has  the  right  to  assume  that 
the  legislature  will  proceed  with  due  re- 
spect to  constitutional  restrictions,  and 
Tiiay  safely  rest  upon  the  assumption  that 
he  is  not  bound  to  be  continually  on  the 
alert   against'  the   enactment   of  unconsti- 


tutional legislation,  and  that  he  will  have 
the  right,  if  such  legislation  should  be 
enacted,  to  resort  to  the  courts  for  pro- 
tection against  the  same.  Prentis  v.  At- 
lantic Coast  Line  Co.,  211  U.  S.  210,  53 
L.   Ed.  150,  29   S.   Ct.   67. 

P'or  example  the  making  or  prescribing 
of  rates  is  a  legislative  function  whether 
done  by  legislature  or  a  state  railroad  cor- 
poration commission;  and  the  decision  or 
order  of  such  body  in  prescribing  the 
rates  can  not  be  made  res  judicata,  and 
a  citizen  deprived  of  the  right  to  resort 
to  the  courts  to  protect  his  constitutional 
rights  by  reason  of  the  fact  that  he  was 
given  notice  and  opportunity  to  be  heard, 
before  the  commission  or  legislative  body, 
l)efore  the  proposed  rule  or  order  pre- 
scribing the  rates  was  promulgated.  Such 
a  decision  is  not  jtidicial  nor  rendered  in 
a  judicial  proceeding,  since  litigation  can 
not  arise  until  legislation  has  been  en- 
acted. Prentis  z'.  Atlantic  Coast  Line 
Co.,  211  U.  S.  210,  53  L.  Ed.  150,  29  S. 
Ct.   67. 

644-81.  Right  to  notice  implies  the 
right  to  appear  and  be  heard — As  requir- 
ing the  hearing  and  judgment  to  corre- 
spond with  the  notice  and  with  the  plead- 
ings.— See  post,  "As  to  Form  of  Judgment 
or  Decree,"  VI.   E.  15. 

Persons  in  contempt. — Striking  from 
llie  files  the  answer  of  a  foreign  corpora- 
lion  sued  for  violating  the  Arkansas  Anti- 
Trust  Act  (Act  Ark.  Jan.  23,  1905  [Acts 
1905,  p.  9]),  and  rendering  judgment  by 
default  against  it,  conformably  to  §  9  of 
that  act,  authorizing  such  action  when 
defendant  disolieys  an  order  made  in  pur- 
suance of  §  8,  to  secure  the  attendance  as 
witnesses  before  a  commissioti  of  certain 
designated  officers,  agents,  directors,  and 
employees,  and  the  production  of  books, 
papers  and  documents  in  their  possession 
or  control,  does  not  deny  due  process  of 
law.  Hammond  Packing  Co.  z>.  Arkansas, 
212  U.   S.  322,   53  L.   Ed.  530,  29   S.  Ct.  370. 

The  power  to  strike  an  answer  out  and 
enter  a  default  conferred  by  §  9  of  the 
Arkansas  Anti-Trust  Act  1905,  upon  fail- 
ure of  the  corporation  to  produce  its 
books  and  papers  as  required  bj'  the  act 
in  an  action  against  it  to  recover  penal- 
ties prescribed  by  the  act  as  referable  to 
the  undoubted  right  of  the  law-making 
authority  to  create  a  presurnption  in  re- 
spect to  the  bad  faith  and  falsity  and 
want  of  foundation  as  an  asserted  de- 
fense against  a  defendant  who  suppresses 
or  fails  to  produce  any  evidence  when 
legally  called  upon  to  give  or  produce 
evidence,  and  it  is  not  opposed  to  the 
due  process  clause  of  the  fourteenth 
amendment,    but    is    authorized     under      a 


5i; 


647-657 


DUB  PROCESS  OF  LAW. 


Vol.  V. 


e.  Persons  Untitled  to  Notice  and  Hearing. — See,  generally,  post,  "Notice, 
Hearing  and  Jurisdiction  in  Particular  Proceedings,"  VI,  E,  3,  1 ;  "Due  Process 
in  Particular  Proceedings,"  VI,  E,  19,  et  seq.  See,  also,  the  specific  titles 
in  this  volume.  As  to  the  right  of  heirs  to  notice  and  hearing  upon  foreclosure 
of  mortgage  against  the  real  estate  of  the  ancestor,  see  ante,  "Right  to  Devise, 
Bequeath,  or  Inherit  Property;  Inheritance  Taxes,"  VI,  D,  1,  j. 

i.  Sufficiency  of  Notice  and  Hearing — (1)  Generally  as  to  Notice. — See,  gener- 
ally, post,  Summons  and  Process.  As  to  notice  and  hearing  before  a  legislative 
body  before  the  enactment  of  a  statute,  or  before  an  administrative  body  or  com- 
mission before  the  promulgation  of  an  order,  see  ante,  "Legislative  Judgments 
and  Decrees,"  VI,  E,  1,  f,  (3).  As  to  notice  and  hearing  in  particular  proceed- 
ings, see  the  appropriate  specific  titles  in  this  supplement.  See,  also,  post,  "No- 
tice, Hearing  and  Jurisdiction  in  Particular  Proceedings,"  VI,  E,  3,  1 ;  "Due  Proc- 
ess in  Particular  Proceedings,"  VI,  E,  19. 

(2)  Determined  by  Substance,  Not  by  Form. — See  note  92. 

(3)  May  Be  Actual  or  Constructive. — See  note  93. 

1.  Notice,  Hearing  and  Jurisdiction  in  Particular  Proceedings. — Cases  illus- 
trating the  sufficiency  of  the  notice  and  hearing  in  particular  cases  will  be  found 
in  the  notes. -^'^ 


visitorial  power  of  the  state  as  a  right  to 
exercise  over  corporations  subject  to  its 
control.  Hammond  Packing  Co.  v.  Ar- 
kansas, 212  U.  S.  322,  353,  53  L.  Ed.  530, 
29  S.  Ct.  370,  distinguishing,  Hovey  v. 
Elliott,  167  U.  S.  409,  42  L.  Ed.  215,  17 
S.  Ct.  841,  in  which  it  was  held  that  the 
action  of  the  court  in  striking  an  answer 
from  the  files  and  condemning,  as  by  de- 
fault, a  punishment  for  a  contempt  was  a 
denial  of  due  process  of  law,  and  repug- 
nant to  the   fourteenth   amendment. 

Objection  of  self-incrimination  not 
available  to  corporation  in  contempt. — 
See  ante,  CONSTITUTIONAL  LAW, 
p.  264. 

647-92.  Sufficiency  of  notice  and  hearing 
determined  by  substance  and  not  by  form. 
— The  fourteenth  amendment  guarantees 
that  the  defendant  shall  be  given  that 
character  of  notice  and  opportunity  to 
be  heard  which  is  essential  to  due  proc- 
ess of  law.  When  that  has  been  done,  the 
requirements  of  the  constitution  are  met, 
and  it  is  not  for  this  court  to  determine 
whether  there  had  been  an  erroneous  con- 
struction of  statute  or  common  law. 
Standard  Oil  Co.  v.  Missouri,  224  U.  S. 
270,  56  L.  Ed.  760,  32  S.  Ct.  406;  Iowa 
Cent.  R.  Co.  v.  Iowa,  160  U.  S.  389,  40  L. 
Ed.  467,  16  S.  Ct.  344;  West  v.  Louisiana, 
194  U.  S.  258,  261,  48  L.  Ed.  965,  24  S. 
Ct.  650.  See,  also,  ante,  "Qualification  of 
Rule;  Regard  to  Be  Had  to  Substance 
and  Not  to  Form,"  VI,  E,  1,  b,   (2). 

648-93.  Notice  may  be  actual  or  con- 
structive.— Personal  notice  is  not  in  all 
cases  necessary.  There  may  be,  and 
necessarily  must  be,  some  form  of  con- 
structive service.  Jacob  v.  Roberts,  223 
U.  S.  261,  56  L.  Ed.  429,  32  S.  Ct.  303; 
Ballard  v.  Hunter,  204  U.  S.  241,  51  L.  Ed. 
461,   27   S.   Ct.  261. 


657-21a.  Notice,  hearing  and  jurisdic- 
tion in  particular  proceedings. — See,  gen- 
erally, the  appropriate  titles  in  this  sup- 
plement. See,  also,  post,  "Due  Process  in 
Particular   Proceedings,"   VI,    E,    19. 

Quieting  title  to  real  estate. — As  it  is 
indisputable  that  the  general  welfare  of 
society  is  involved  in  the  security  of  the 
titles  to  real  estate  and  in  the  public 
registry  of  such  titles,  it  is  obvious  that 
the  power  to  legislate  as  to  such  sul)- 
jects  inheres  in  the  very  nature  of  gov- 
ernment. This  being  true,  it  follows  that 
government  possesses  the  power  to  au- 
thorize proceedings  personal  and  in  rem 
in  order  to  remedy  the  confusion  and  un- 
certainty as  to  registered  titles  arising 
from  the  loss  or  destruction  of  public 
records  by  flood,  fire,  or  earthquake. 
American  Land  Co.  v.  Zeiss,  219  U.  S.  47, 
55  L.  Ed.  82,  31  S.  Ct.  200. 
-  The  principle  applies  with  equal  force 
in  the  case  of  imknown  claimants.  Un- 
disclosed and  unknown  claimants  are.  to 
say  the  least,  as  dangerous  to  the  stability 
of  titles  as  other  classes.  American  Land 
Co.  V.  Zeiss,  219  U.  S.  47,  55  L  Ed.  82. 
31  S.  Ct.  200. 

The  safeguards  afforded  unknown 
claimants  or  claims  by  the  provisions  of 
St.  Cal.  1906,  c.  59,  for  the  establishment 
and  quieting  of  title  to  real  property  in 
case  of  the  loss  or  destruction  of  public 
records,  by  an  action  in  rem,  to  be 
brought  by  a  person  in  the  actual  and 
peaceable  possession  of  the  property 
against  "all  persons  claiming  any  interest 
in  or  lien  upon  the  real  property  herein 
described,  or  any  part  thereof,"  satisfy 
the  due  process  of  law  clause  of  the  fed- 
eral constitution,  where  such  statute,  as 
construed  by  the  state  courts,  requires  the 
plaintiff  to  designate  and  serve  all  known 


518 


Vol.  V. 


DUB  PROCESS  OF  LAW. 


657 


6.  As  TO  THE  Forum  in  Which  Trial  Is  Had;  Change  of  Venue;  etc. — 
See  ante,  Constitutional  Law,  p.  264;  post,  Removal  of  Causes;  Venue. 

11.  Matters  Admissible  in  Defense. — See  ante,  "As  to  What  Shall  Consti- 
tute an  Actionable  Wrong;  Damages  Recoverable,"  VI,  A,  8,  f.  See,  also,  ante. 
Constitutional  Law,  p.  264.  As  to  powers  of  territorial  legislatures,  see  ante, 
Constitutional  Law,  p.  264.    As  to  statutes  abolishing  the  doctrines  of  fellow 


claimants,  and  those  whom,  with  reason- 
able diligence,  he  can  ascertain  to  be 
such,  and  calls  for  constructive  service 
by  publication  against  nonresidents  and 
imknown  owners,  for  the  conspicuous 
posting  upon  the  property  of  a  copy  of 
the  summons,  and  the  recording  of  a  lis 
pendens,  especially  since  under  Code  Civ. 
Proc.  Cal.,  §  473,  any  person  interested 
and  having  no  actual  notice  of  the  decree 
may  come  in  at  any  time  within  a  year 
after  its  rendition,  and,  upon  showing 
cause,  may  have  the  decree  vacated  as 
to  him,  and  be  allowed  to  answer  to  the 
merits.  American  Land  Co.  v.  Zeiss,  219 
U.  S.  47,  55  L.  Ed.  82,  31  S.  Ct.  200. 

An  order  for  the  substituted  service  of 
summons  in  a  suit  to  quiet  title  to  certain 
lots  in  San  Diego,  California,  made  con- 
formably to  Cal.  Code  Civ.  Proc,  §  412, 
is  supported  by  a  sufficient  showing  of 
diligent  inquiry  to  satisfy  the  due  process 
of  law  clause  of  U.  S.  Const.,  fourteenth 
amendment,  where  it  was  made  upon  an 
affidavit  which,  after  reciting  the  pro- 
ceedings, including  the  issue  of  the  sum- 
mons and  the  certificate  of  the  sheriff  that 
"after  diligent  search  and  inquiry"  he  was 
unable  to  find  the  '"defendants  or  either 
or  any  of  them  in  this,  San  Diego  County," 
further  states  that  unsuccessful  inquiries 
as  to  the  whereabouts  of  defendants  were 
made  of  their  former  neighbors  and  other 
residents  of  San  Diego,  and  of  certain 
county  and  state  officers,  and  that  plain- 
tiff himself  made  diligent  inquiry,  and  had 
no  knowledge  of  their  residence  or  post- 
office  address,  or  where  they  could  be 
found.  Jacob  v.  Roberts,  223  U.  S.  261, 
56  L.   Ed.  429,  32   S.   Ct.   303. 

Same — Time  limit  as  to  recovery. — If 
the  legislature  thinks  that  a  year  is  long 
enough  to  allow  a  party  to  recover  his 
property  from  a  third  hand,  and  estab- 
lishes that  time  in  cases  where  he  has 
not  been  heard  of  for  fourteen  years,  and 
presumably  is  dead,  it  acts  within  its  con- 
stitutional discretion.  Now  and  then  an 
extraordinary  case  may  turn  up,  but  con- 
stitutional law,  like  other  mortal  con- 
trivances, has  to  take  some  chances,  and 
in  the  great  majority  of  instances,  no 
doubt,  justice  will  be  done.  Blinn  %'.  Nel- 
son, 222  U.  S.  1,  56  L.  Ed.  65.  32  S.  Ct.  1. 
See  American  Land  Co.  v.  Zeiss,  219  LT. 
S.  47,  67,  55  L.   Ed.  82,  31   S.  Ct.  200. 

To  argue  in  such  a  case  that  the  pro- 
visions of  the  statute  are  repugnant  to 
the  due  process  clause  because  a  case 
may  be  conceived  where  rights  iir  and  to 


property  would  be  adversely  affected 
without  notice  being  actually  conveyed 
by  the  proceedings  is  in  effect  to  deny  the 
power  of  the  state  to  deal  with  the  sub- 
ject. The  criterion  is  not  the  possibility 
of  conceivable  injury,  but  the  just  and 
reasonable  character  of  the  requirements, 
having  reference  to  the  subject  with  which 
the  statute  deals.  American  Land  -Co.  v. 
Zeiss,  219  U.  S.  47,  55  L.  Ed.  82,  31  S.  Ct. 
200.  See,  also,  ante,  "Mere  Possibility  of 
Evil  of  Hardship  in  Particular  Instances 
Not  Sufficient  to  Invalidate  Law,"  II,  C, 
6;  "Construed  in  Light  of  Practical  Af- 
fairs; Local  Conditions,  Habits,  Customs, 
and  Traditions  of  Particular  Communi- 
ties," V,  F. 

Same — In  probate  proceedings. — See, 
generally,  post,  EXECUTORS  AND  AD- 
MINISTRATORS. 

It  is  elementary  that  a  probate  pro- 
ceeding by  which  jurisdiction  of  a  pro- 
bate court  is  asserted  over  the  estate  of 
a  decedent  for  the  purpose  of  administer- 
ing the  same  is  in  the  nature  of  a  proceed- 
ing in  rem,  and  is  therefore  one  as  to 
which  all  the  world  is  charged  with  no- 
tice. Goodrich  v.  Ferris,  214  U.  S.  71, 
53  L.  Ed.  914,  29  S.  Ct.  580. 

As  held  in  Bellingham  Bay,  etc.,  R.  Co. 
V.  New  Whatcom,  172  U.  S.  314,  318,  43 
L.  Ed.  460,  19  S.  Ct.  205,  even  though  the 
power  of  a  state  legislature  to  prescribe 
length  of  notice  is  not  absolute,  yet  it  is 
certain  "that  only  in  a  clear  case  will  a 
notice  authorize  by  the  legislature  be  set 
aside  as  wholly  ineffectual  on  account  of 
the  shortness  of  the  time."  Goodrich  7'. 
Ferris,  214  U.  S.  71,  53  L.  Ed.  914,  29  S. 
Ct.   580. 

A  claim  that  ten  days'  statutory  notice 
of  the  time  appointed  for  action  upon  a 
petition  for  the  settlement  of  the  final  ac- 
count of  an  executor  and  for  the  final 
distribution  of  the  decedent's  estate  is  so 
unreasonable  as  to  a  nonresident  claim.ant 
as  to  be  wanting  in  due  process  of  law  is 
too  clearly  unsubstantial  and  devoid  of 
merit  to  furnish  a  basis  for  a  direct  ap- 
peal to  the  federal  supreme  court  from  a 
decree  of  a  circuit  court.  Goodrich  v.  Fer- 
ris, 214  U.  S.  71,  53  L.  Ed.  914,  29  S.  Ct. 
580. 

"The  distribution  of  the  estate  of  Wil- 
liams was  but  an  incident  of  the  proceed- 
ing prescribed  by  the  laws  of  California 
in  respect  to  the  administration  of  an  es- 
tate in  the  custody  of  one  of  its  probate 
courts.  Under  such  circumstances,  there- 
fore,   and    putting    aside    the    question    of 


519 


657 


DUE  PROCESS  OF  LAW. 


Vol.  V. 


servants,  comparative  and  contributory  negligence,  etc.,  see  ante,  Constitutional 
Lav^',  p.  264;  post.  Fellow  Servants;  Negligence;  Police  PowLr.  As  to  the 
power  of  congress  to  regulate  commerce  and  to  prevent  interstate  carriers  from 
nullifying  such  regulations  by  pleading  contract  waiving  or  modifying  such  regu- 
lations, see  post.  Interstate  and  Foreign  Commerce.  As  to  the  power  of  con- 
gress to  outlaw  existing  contracts  for  rebates,  free  passes,  etc.,  and  prevent  the 
parties  thereto  from  setting  them  up  in  defense  to  prosecutions  under  the  stat- 


whether  or  not  the  state  of  California  did 
or  did  not  possess  ar'oitrary  power  in  re- 
spect to  the  character  and  length  of  no- 
tice to  he  given  of  the  various  steps  in 
the  administration  of  an  estate  in  the  cus- 
tody of  one  of  its  courts,  we  hold  that 
the  claim  that  ten  days'  statutory  notice 
of  the  time  appointed  for  the  settlement 
of  the  final  account  of  the  executor,  and 
for  action  upon  the  petition  for  final  dis- 
tribution of  the  Williams  estate,  was  so 
unreasonable  as  to  be  wanting  in  due 
process  of  law,  was  clearly  unsvibstantial 
and  devoid  of  merit,  and  furnished  no 
support  for  the  contention  that  rights  un- 
der the  constitution  of  the  United  States 
had  been  violated."  Goodrich  v.  Ferris, 
214  U.   S.  71,  53   L.   Ed.  914,  29   S.   Ct.  580. 

The  case  of  Roller  v.  Holly,  176  U.  S. 
398,  44  L.  Ed.  520,  20  S.  Ct.  410,  con- 
cerned the  validity  of  original  process  by 
which  the  conceded  property  of  a  non- 
resident, situate  within  the  jurisdiction  of 
the  state  of  Texas,  was  sought  to  be  sub- 
jected to  the  control  of  its  courts.  The 
proposition  which  was  presented  for  de- 
cision in  that  case  was  whether  a  statu- 
tory notice  of  five  days,  given  to  a  resi- 
dent of  Virginia  requiring  him  to  appear 
in  Texas  and  defend  a  suit  brought 
against  him  to  foreclose  a  vendor's  lien 
upon  his  land,  constituted  reasonable  and 
adequate  notice  for  the  purpose.  Mani- 
festly, that  case  is  not,  in  any  particular, 
analogous  to  the  one  under  consideration, 
which  is  a  case  involving  the  devolution 
and  administration  of  the  estate  of  a 
decedent,  a  stibject  peculiarly  within 
state  control.  Goodrich  v.  Ferris,  214  U. 
S.  71,  53  L.  Ed.  914,  29  S.  Ct.  580;  Case  of 
Broaderick's  Will,  21  Wall.  503,  519,  22 
L.  Ed.  599. 

Foreclosure  of  mortgage  upon  real  es- 
tate of  decedent — Necessity  for  notice  to 
heirs. — See  ante,  "Right  to  Devise,  Be- 
queath, or  Inherit  Property;  Inheritance 
Taxes,"  VI,  D,  1,  j. 

Notice  to  bridge  company  in  proceeding 
to  compel  modification  or  removal. — A 
bridge  company  convicted  for  failure  to 
make  the  alterations  in  a  bridge  over  an 
interstate  waterway  which  the  secretary 
of  war,  acting  under  the  authority  of  the 
Act  of  March  3,  1899,  §  18,  requires,  was 
afforded  the  reasonable  opportunity  to  be 
heard,  contemplated  by  that  law,  upon 
the  question  whether  the  biidge  was,  in 
fact,  an  unreasonable  obstruction  to  navi- 
gation,  where    the    company   had   full    no- 


tice of  the  action  of  the  officer  of  en- 
gineers, who,  under  the  order  of  the 
secretary,  made  a  tentative  examination 
of  the  facts,  and  appeared  at  the  regular 
final  hearing  before  that  officer,  with 
liberty  to  contest  the  facts,  and  introduce 
any  evidence  pertinent  to  the  case,  and 
the  decision  of  the  secretary  of  war  was 
based  on  the  engineer  officer's  report  of 
all  the  facts  a^lduced  before  him,  and 
which  constituted  the  basis  of  his  con- 
clusion that  the  bridge  was  an  unreason- 
able obstruction  to  the  navigation.  Mo- 
nongahela  Bridge  Co.  v.  United  States, 
216  U.  S.  177,  54  L.  Ed.  435,  30  S.  Ct.  356. 
Notice  to  Indian  of  intention  to  strike 
name  from  rolls. — Notice  to  the  attorney 
for  those  v/hose  names  were  duly  entered 
as  Creek  freedmen  by  blood  on  the  rolls 
made  and  approved  by  the  secretary  of 
the  interior,  given  a  few  hours  before  the 
hearing  of  a  motion  to  strike  their  names 
from  the  roll  on  the  ground  that  their 
enrollment  had  been  secured  by  perjury, 
was  not  such  notice  as  afforded  due 
process  of  law.  Turner  v.  Fisher,  222  U. 
S.  204,  56  L.  Ed.  165,  32  S.  Ct.  37,  affirm- 
ing judgment  (1909),  Same  v.  Garfield, 
33  App.  D.  C.  195.  See,  also,  ante,  "Prop- 
erty  and   Tribal    Rights   of   Indians,"   VI, 

D,  1,  s. 

In  summary  proceedings  to  destroy 
property  kept,  sold,  or  used  in  violation 
of  law. — See  ante,  "Summary  Destruction 
of  Property  Kept,  Sold  or  Used  in  Viola- 
tion of  Law,"  VI,  D,  2,  b,  (4),  (b),  (ee). 

In  proceeding  to  regulate  rates. — See 
ante,  "As  to  Statute  or  Ordinance  -Fix- 
ing Rates  for  Use  of  Public  Utilities,''  VI, 

E,  3,    b,    (3).    See,    generally,     post,      PO- 
LICE POV'ER. 

In  proceeding  to  compel  production  of 
corporate  books  and  papers. — An  oppor- 
tunity for  hearing,  suthcient  to  satisfy  any 
requirement  of  Const.  U.  ,S.  Amend.  14, 
respecting  due  process  of  law,  is  afforded 
by  the  provisions  of  Act  Vt.  Oct.  9,  1906, 
p.  79,  No.  75,  for  the  compulsory  produc- 
tion of  the  books  and  papers  of  a  corpora- 
tion before  a  court  or  grand  jury,  where 
the  corporation  has  full  opportunity  to 
show  cause  before  the  court  why  it  does 
not  produce  such  books  and  papers,  and, 
by  objection  to  the  production  before  the 
grand  jury,  can  raise  the  question  before 
that  body,  and  is  entitled  to  be  heard 
upon  that  question  before  the  court  to 
which  it  is  the  grand  jury's  duty  to  re- 
port   the    question    for    its    action.      Judg- 


520 


Vol.  V. 


DUB  PROCESS  OF  LAW. 


660 


utes,  see  post,  Interstate  and  Foreign  Commerce.     See,  also,  ante,  "A  Dis- 
tinction between  Damaging  and  Taking,"  VI,  D,  2,  b,  (3). 

12.  Statutes  Affecting  Rules  of  Evidence. — See  note  35. 

13.  Laws  Respecting  Damages  and  Penalties. — See,  generally.  Constitu- 
tional Law,  p.  264.  See,  also,  ante,  "As  to  What  Shall  Constitute  an  Actionable 
Wrong;  Damages  Recoverable,"  VI,  A,  8,  f.    As  to  the  powers  of  territorial  leg- 


ment,  In  re  Consolidated  Rendering  Co. 
(Vt.  1907),  66  A.  790,  affirmed.  Consoli- 
dated Rendering  Co.  v.  Vermont,  207  U. 
S.   541,   52   L.    Ed.   327,   28    S.   Ct.   178. 

In  quo  warranto  proceedings  to  oust 
foreign  corporation  under  original  juris- 
diction of  state  court  of  last  resort. — See 
post,  "As  to  Form  of  Judgment  or  De- 
cree,"  VI,    E,   15. 

Before  legislative  or  administrative 
body  pending  enactment  of  statute,  pro- 
mulgation of  order,  etc. — See  ante,  "Leg- 
islative Judgments  and  Decrees,"  VI,  E, 
1,    f.    (3). 

660-35.  Statutes  affecting  rules  of  evi- 
dence.— As  to  the  general  power  of  the 
state  to  prescribe  the  evidence  receivable 
in  its  courts  and  the  effect  thereof,  see 
ante,  CONSTITUTIONAL  LAW,  p.  264; 
post,  EVIDENCE. 

.\s  to  the  power  of  the  legislature  to 
create  prima  facie  presumptions,  see  ante, 
CONSTITUTIONAL  LAW,  p.  264. 

Compelling  production  of  corporate 
books  and  papers. — Laws  1906,  p.  79,  No. 
75,  provide  that  any  corporation  doing- 
business  in  the  state  shall  upon  notice 
produce  before  any  court,  grand  jury, 
tribunal,  or  commission,  acting  under  au- 
thority of  the  state,  all  books,  correspond- 
ence, memoranda,  reference,  or  informa- 
tion concerning  the  proceedings  or  sub- 
ject of  inquiry  pending  liefore  the  body, 
and  which  may  at  any  time  have  been 
made  or  kept  within  the  state  and  are  in 
the  custody  of  the  corporation,  or  which 
relate  to  any  transaction  within  the  state 
or  with  parties  residing  or  having  a  place 
of  business  therein,  and  providing  for  the 
manner  of  service  of  the  order  to  pro- 
duce and  for  punishment  for  contempt  in 
case  of  noncompliance.  Held,  that  the 
statute  is  not  contrary  to  Const.  U.  S. 
Amend.,  art.  14,  as  depriving  the  corpora- 
tion of  its  property  without  due  process 
of  law,  by  authorizing  a  fine  for  con- 
tempt in  case  of  refusal  to  produce  docu- 
mentary evidence  when  ordered,  since  the 
law  is  not  otherwise  unconstitutional,  and 
the  proceedings  for  punishing  the  con- 
tempt are  in  accordance  with  the  ordinary 
mode  prescribed  by  law  in  such  cases  and 
adapted  to  the  end  to  be  attained.  (1907), 
In  re  Consolidated  Rendering  Co.,  66  A. 
790,  80  Vt.  55,  judgment  affirmed.  Con- 
solidated Rendering  Co.  v.  Vermont,  207 
U.   S.   541,   52   L.   Ed.   327,  28    S.    Ct.   178. 

See,  also,  as  to  the  production  of  books 
and  papers  situated  without  the  state, 
ante,  "Legislative  Power  Limited  to  Per- 


sons and   Property  within  the  Territorial 
Jurisdiction  of  the   State,"  VI,  A,  9. 

Same  —  Self-incrimination. — Due  proc- 
ess of  law  is  not  denied  by  an  order  di- 
lecting  the  production  of  books  and  pa- 
pers by  a  foreign  corporation  sued  for 
violating  the  Arkansas  Anti-Trust  Act 
(Act  Ark.  Jan.  23,  1905  [Acts  1905,  p.  1]), 
because  such  order  seeks  to  elicit  proof 
not  only  as  to  the  liability  of  the  corpora- 
tion, but  also  evidence  in  its  possession 
relevant  to  its  defense.  Judgment  (1907), 
100  S.  W.  407,  81  Ark.  519,  affirmed.  Ham- 
mond Packing  Co.  v.  Arkansas,  212  U.  S. 
322,  53  L.  Ed.  530,  29   S.   Ct.  370. 

As  to  self-incrimination  and  searches 
and  seizures,  see  ante,  CONSTITU- 
TIONAL LAW,  p.  264;  post,  SEARCHES 
AND  SEIZURES. 

As  to  the  power  of  the  court  to  strike 
the  answer  of  a  corporation  in  contempt, 
see  ante,  "The  Right  to  Notice  Implies 
the  Right  to  Appear  and  Be  Heard,"  VI, 
E,  3.  d. 

Same — Fees  and  expenses. — Want  of 
due  process  of  law  can  not  be  urged 
against  proceedings  taken  pursuant  to  Act 
Vt.  Oct.  9,  1906,  p.  79,  No.  75,  to  compel 
a  foreign  corporation  doing  business  in 
the  state  to  produce  books  and  papers  be- 
fore the  grand  jury,  on  the  theory  that 
no  compensation  is  provided  for  the  time, 
trouble,  and  'expense  incurred  in  collect- 
ing documents  outside  the  state  and 
sending  them  into  the  state,  and  that 
private  property  is  thus  taken  for  public 
use  without  compensation,  where  the 
highest  state  court  has  held  that  the  gen- 
eral law  of  the  state  in  reference  to  the 
compensation  of  witnesses  applies.  Judg- 
ment, In  re  Consolidated  Rendering  Co. 
(Vt.  1907),  66  A.  790.  affirmed.  Consoli- 
dated Rendering  Co.  t'.  Vermont,  207  U. 
S.   541,  52   L.   Ed.  327,  28   S.   Ct.   178. 

Laws  1906,  p.  79,  No.  75,  requiring  cor- 
porations to  produce,  on  notice,  its  books 
and  papers,  does  not  violate  Const.  U.  S. 
Amend.,  art.  14,  by  taking  property  with- 
out due  process  of  law,  in  that  it  provides 
no  compensation  for  time,  trouble,  and 
expense  in  producing  documents  and  pa> 
pars  from  other  states,  since  the  law  pro- 
vides fees  and  mileage  for  witnesses,  and 
any  loss  from  inadequate  fees  is  incident 
to  the  legitimate  exercise  of  the  powers 
of  government  for  the  public  good.  (1907), 
In  re  Consolidated  Rendering  Co..  66  A. 
790,  80  Vt.  55,  judgment  affirmed.  Con- 
solidated Rendering  Co.  v.  Vermont,  207 
U.   S.  541,  52  L.   Ed.  327,  28  S.  Ct.  178. 


521 


661  DUB  PROCESS  OF  LAW.  Vol.  V. 

islatures,  ante,  Constitutional  Law,  p.  264.  As  to  the  denial  of  the  equal  pro- 
tection of  the  laws,  see  ante.  Constitutional  Law,  p.  264. 

Double  Damages,  etc.,  for  Trespass  upon  Public  Lands. — The  subjection 
to  double  damages  and  line  or  imprisonment  under  a  state  statute  of  one  making 
a  casual  and  involuntary  trespass  upon  state  lands  by  cutting  timber  thereon  with- 
out a  valid  and  existing  permit  does  not  deny  due  process  of  law,  but  may  be  justi- 
fied as  a  valid  exercise  of  the  police  power,  although  the  trespasser  may  have  had 
reasonable  grounds  for  believing  that  authority  had  been  granted  and  honestly 
acted  on  such  belief.^'^'^ 

Forfeiture  of  Charter  or  Violation  of  Law. — The  state  may  lawfully  pro- 
vide for  the  forfeiture  of  corporate  charters  for  the  violation  of  its  laws;  and  a 
corporation  whose  charter  is  revoked  under  the  operation  of  such  a  statute  after 
notice,  and  full  opportunity  for  hearing  and  defense,  can  not  claim  to  have  been 
deprived  of  its  property  in  violation  of  the  due  process  clause  of  the  fourteenth 
amendment. ^'^''"'^ 

14.  Attorneys'  Fees. — See  ante.  Constitutional  Law,  p.  264. 

15.  As  to  Form  of  Judgment  or  Decree. — Hearing  to  Correspond  with 
Notice;  Judgment  Must  Be  Responsive  to  Pleadings  and  Cause  of  Ac- 
tion.— Though  the  court  may  possess  jurisdiction  of  a  cause,  of  the  subject 
matter,  and  of  the  parties,  it  is  still  limited  in  its  modes  of  procedure,  and  in  the 
extent  and  character  of  its  judgments.  It  must  act  judicially  in  all  things  and 
can  not  then  transcend  the  power  conferred  by  the  law.^"*^  Due  process  of  law, 
under  the  fourteenth  amendment,  entitles  the  defendants  to  notice  and  an  op- 
portunity to  be  heard.  This  necessarily  requires  that  the  notice  and  the  hearing 
should  correspond,  and  that  the  relief  granted  should  be  appropriate  to  that 
which  has  been  heard  and  determined  on  such  notice.  For  even  if  a  court  has 
original  general  jurisdiction  criminal  and  civil,  at  law  and  in  equity,  it  can  not 
enter  a  judgment  which  is  beyond  the  claim  asserted,  or  which,  in  its  essential 
character,  is  not  responsive  to  the  cause  of  action  on  which  the  proceeding  was 
based. ^"^"^ 

661-37a.    Double  damages,  etc.,  for  tres-  Missouri,  224  U.  S.  270,  56  L.  Ed.  760,  767, 

pass  upon  public  lands. — Shevlin-Carpen-  32   S.   Ct.  40G. 

ter  Co.  V.  Minnesota,  218  U.   S.  57,  54  L.  Illustration — Fine  and  ouster  of  foreign 

Ed.  930,  30  S.  Ct.  663,  affirming  judgment  corporation  in  original  quo  warranto  pro- 

in   State  v.   Shevlin-Carpenter  Co.    (1907),  ceeding  before  state  court  of  last  resort. 

113   N.  W.  634,  102   Minn.  470.     See,  also,  — Entry^  of  a  judgment  of  ouster  and  the 

as  to  double  damages,  ante,  CONSTITU-  imposition    of    a    substantial    fine    in    quo 

TIONAL  LAW,  p.  264.  warranto  proceedings   against  a   corpora- 

661-37b.    Forfeiture  of  charter  for  viola-  tion,    conformably    to    the    local    practice, 

tion  of  law. — Cosmopolitan  Club  v.  Com-  afford  suf^cient  notice  and  opportunity  to 

monwealth,  208   U.   S.  378,   52   L.   Ed.   536,  be  heard  to  satisfy  the  due  process  of  law 

28  S.  Ct.  394.  clause    of    U.  S.    Const.,  14th  Amend.,    al- 

Due  process  of  law  is  not  denied  a  so-  though    the     information      contains      onlj- 

cial  club  by  the  revocation  of  its  charter,  general  allegations   of  misuser,  with   only 

which,   under  Act  Va.   March   12,   1904,  p.  a  prayer  for  ouster.     Standard  Oil  Co.  v. 

214,  c.  116,  automatically  followed  a  judg-  Missouri,  224  U.  S.  270,  56  L.  Ed.  760,  32 

ment  of  a  court  of  competent  jurisdiction,  S.    Ct.   406. 

rendered    with    all    the    parties    before    it.  There  is  no  want  of  due  process  of  law 

after  giving  full  opportunity  to  be  heard,  in  a  judgment  of  the  highest  court  of  a 

that   such   club   was   being  conducted   for  state,   imposing  a  substantial  fine   in   quo 

the  purpose  of  violating  and  evading  the  warranto  proceedings,  conformably  to  the 

laws  of  the  state  regulating  the  licensing  local  practice,  upon  a  foreign  corporation 

and   sale   of  liquors.     Cosmopolitan   Club  found   to  have   misused   its   license   to   do 

V.  Commonwealth,  208  U.  S.  378,  52  L.  Ed.  business  in  the   state,   although  there  was 

536,  28  S.  Ct.  394.  no  statute   fixing  a  maximum   penalty,  no 

661-37C.  Hearing  to  correspond  with  no-  rule  for  measuring  damages,  and  no  hear- 

tice — Judgment  to  be  responsive  to  plead-  ing  on  that  subject.     Standard  Oil  Co.  v. 

ings   and    cause   of   action.— Standard    Oil  Missouri,  224  U.  S.  270,  56  L.   Ed.  760,  32 

Co.  V.   Missouri,  224   U.   S.   270,   56   L.   Ed.  S.    Ct.   406. 

760,  767,  32  S.   Ct.  406.  The  judgment  for  a  fine  of  $50,000,  was 

661-37d.     Same. — Standard    Oil     Co.      v.  not  a  criminal  sentence  in  a  civil  suit,  be- 

522 


Vol.  Y. 


DUB  PROCESS  OF  LAW. 


662-663 


16.  As  TO  THE  Constitutionality  of  Reviewing,  Modifying,  or  Annull- 
ing Judgments  and  Decrees. — See  ante.  Constitutional  Law,  p.  264. 

17.  As  Guaranteeing  Right  of  Appeal,  Rehearing,  or  Other  Form  of 
Review. — See  notes  40,  41. 

18.  Due  Process  on  Appeal  or  Writ  of  Error — a.  Generally  in  State  Courts. 
— See  note  44. 

b.  Jurisdiction  on  Appeal;  Decisions  Reviewable;  Scope  of  Review;  Rule  of 
Decision;  etc. — See,  generally,  ante,  Appeal  and  Error,  p.  34.  See,  also,  ante, 
"Scope  of  Review  by  Federal  Supreme  Court,"  VI,  B,  6. 


yond  the  issues  and  'the  prayer  for  relief 
in  the  information,  and  therefore  void,  as 
having  been  in  substance  entered  without 
notice  and  opportunity  to  be  heard  for, 
in  Missouri,  and  prior  to  the  decisions  in 
this  case,  the  rulings  were  to  the  effect 
that  the  supreme  court  of  Missouri  had 
jurisdiction  not  only  to  oust,  but  to  im- 
pose a  substantial  fine  in  quo  warranto. 
Standard  Oil  Co.  v.  Missouri,  224  U.  S. 
270,  56  L.   Ed.  760,  32  S.  Ct.  406. 

Defendants  insisted  that  there  was 
nothing  in  the  pleading  to  indicate  that 
such  an  issue  was  to  be  tried,  nor  any 
prayer  warranting  such  relief;  and  hence 
that  the  judgment  was  wanting  in  due 
process  of  law,  and  void  for  want  of  no- 
tice of  what  was  to  be  heard  and  de- 
termined. Answering  this  contention,  the 
court  said:  "It  is  true  that  the  informa- 
tion did  not  ask  for  damages  or  that  a 
fine  should  be  imposed.  But  if  this  be 
treated  as  a  criminal  case,  a  prayer  was 
no  more  necessary  than  in  an  indictment 
or  ordinary  information;  since  such  pro- 
ceedings never  contain  any  reference 
whatever  to  the  judgment  or  sentence  to 
be  rendered  on  conviction.  In  civil  suits 
the  pleadings  should,  no  doubt,  contain 
a  prayer  for  judgment,  so  as  to  show  that 
the  judicial  power  of  the  court  is  in- 
voked. The  rules  of  practice  also  may 
well  require  that  the  plaintiff  should  indi- 
cate what  remedy  he  seeks.  But  the 
prayer  does  not  constitute  a  part  of  the 
notice  guaranteed  by  the  constitution. 
The  facts  stated  fix  the  limit  of  the  re- 
lief that  can  be  granted.  While  the  judg- 
ment must  not  go  beyond  that  to  which 
the  plaintiff  v.'as  entitled  on  proof  of  the 
allegations  made,  yet  the  court  may  grant 
other  and  different  relief  than  that  for 
\vhich  he  prayed."  Standard  Oil  Co.  r. 
:\rissouri.  224  U.  S.  270,  56  L.  Ed.  760,  32 
S.   Ct.  406. 

The  real  objection  is  not  so  much  to  the 
existence  of  the  power  to  fix  the  amount 
of  the  fine,  as  the  fact  that,  when  exer- 
cised by  the  supreme  court  of  the  state, 
it  is  not  subject  to  review,  and  is  said  to 
be  unlimited.  But  it  is  limited.  Waters- 
Pierce  Oil  Co.  V.  Texas,  No.  1,  212  U.  S. 
86,  111,  53  L.  Ed.  417,  29  S.  Ct.  220._  It  is 
limited  by  the  obligation  to  administer 
justice,  and  to  no  more  assess  excessive 
damages   than   to   impose   excessive   fines. 


But  the  power  to  render  a  final  judgment 
must  be  lodged  somewhere.  In  every 
case  a  point  is  reached  where  litigation 
must  cease.  What  that  point  is  can  be 
determined  by  the  legislative  power  of 
the  state,  for  right  of  appeal  is  not  es- 
sential to  due  process  of  law.  Twining 
V.  New  Jersey,  211  U.  S.  78,  111,  53  L.  Ed. 
97,  111,  29  S.  Ct.  14;  Standard  Oil  Co.  v. 
Missouri,  224  U.  S.  270,  56  L.  Ed.  760,  32 
S.  Ct.  406. 

662-40.  Due  process  as  requiring  right 
of  appeal  or  other  form  of  review. — Twin- 
ing V.  New  Jersey,  211  U.  S.  78,  111,  53 
L.  Ed.  97,  29  S.  Ct.  14;  Standard  Oil  Co. 
V.  Missouri,  224  U.  S.  270,  56  L.  Ed.  760, 
32  S.  Ct.  406;  United  States  v.  Heinze, 
218  U.  S.  532,  54  L.   Ed.  139,  31  S.  Ct.  98. 

Fine  and  ouster  of  foreign  corporation 
in  original  quo  warranto  proceedings  in 
state  court  of  last  resort. — See  ante,  "As 
to  Form  of  Judgment  or  Decree,'"  VI, 
E,  15. 

662-41.  Same — In  criminal  cases. — 
Twining  v.  New  Jersey,  211  U.  S.  78,  111, 
53  L.  Ed.  97,  29  S.  Ct.  14;  Standard  Oil 
Co.  V.  Missouri,  224  U.  S.  270,  56  L.  Ed. 
760,  32  S.  Ct.  406;  United  States  v.  Heinze, 
218  U.   S.  532,  54  L.  Ed.  139,  31   S.   Ct.  98. 

The  right  of  appeal  to  a  higher  court 
is  not  essential  to  due  process  of  law. 
Therefore,  the  federal  statute  which  per- 
mits the  government,  upon  demurrer  to 
an  indictment  being  sustained,  to  take  the 
cause  directly  and  at  once  to  the  federal 
supreme  court  does  not  deny  due  process 
of  law  to  the  defendant  because  imder  the 
same  act  he  is  not  permitted  to  appeal  to 
a  higher  court  until  final  determination  of 
the  cause,  and  then  only  to  the  circuit 
court  of  appeals.  United  States  v.  Heinze, 
218  U.  S.  532,  54  L.  Ed.  139,  31  S.  Ct.  98. 
See  ante,  CONSTITUTIONAL  LAW. 
p.  264. 

663-44.  Due  process  of  appeal — Supply- 
ing deficiencies  in  record  ex  mero  matu 
in  absence  of  accused. — Due  process  of 
law  was  not  denied  by  the  action  of  the 
supreme  court  of  the  Philippine  Islands 
in  making  an  order  upon  its  own  motion 
when  the  accused  were  absent  from  the 
court,  requiring  the  judge  and  clerk  of 
the  court  below  to  supply  deficiencies  in 
the  record.  Dowdell  v.  United  States,  221 
U.  S.  325,  55  L.  Ed.  753.  31  S.  Ct.  590. 


523 


664-66  5  DUE  PROCESS  OF  LAW.  Vol.  V. 

Refusal  Ex  Mero  Matu  to  Recognize  Equitable  Defenses  Acquiesced 
in  and  Treated  as  Legal  below. — Plaintiffs  in  error  in  a  federal  circuit  court 
of  appeals  are  substantially  denied  their  day  in  court  by  an  affirmance  of  the  judg- 
ment below  on  the  ground  that  the  defenses  relied  upon  were  of  an  equitable  na- 
ture, not  cognizable  in  a  court  of  law,  where  the  trial  court,  with  the  acquies- 
cence of  all  parties,  treated  the  defenses  interposed  by  the  answer  as  legal  in 
their  nature,  and  no  such  question  was  raised  by  either  party  or  considered  when 
the  cause  was  submitted  to  the  circuit  court  of  Appeals."'^'' 

Rule  of  Decision  in  State  Court— Giving  Retroactive  Effect  to  Statute 
Enacted  Pending  Appeal. — The  decision  of  a  state  court  will  not  be  deemed 
to  present  a  question  respecting  due  process  of  law  which  will  sustain  a  writ  of 
error  from  the  supreme  court  of  the  United  States,  on  the  theory  that  such  deci- 
sion gave  retroactive  effect  to  a  statute  passed  since  the  argument  of  the  appeal 
before  the  state  court,  where  the  language  of  the  court's  opinion  may  equally 
well  be  interpreted  as  a  declination  to  pass  upon  a  (|uestion  not  necessary  to  the 
decision,  which  had  been  set  at  rest  for  the  future  by  legislation.-'-'''' 

Confining  Scope  of  Judicial  Review  to  Evidence  Submitted  to  Rail- 
road Commission. — Confining  the  scope  of  the  judicial  review  of  the  reason- 
ableness of  an  order  of  the  state  railroad  commission  requiring  trackage  connec- 
tions between  railway  companies  for  the  interchange  of  business  to  the  testimony 
which  has  been  submitted  to  the  commission,  as  is  done  by  Wash.  Laws  1907, 
chap.  226,  does  not  take  the  property  of  the  carriers  without  due  process  of  law, 
where  the  statute  provides  for  a  "full  hearing"  before  the  commission,  at  which 
the  carriers  may  show  that  the  order  asked  for,  if  granted,  will  be  unreason- 
able.-*^'^ 

c.  Presumptions  on  Appeal. — See  note  46. 

19.  Due  Process  in  Particular  Proceedings — i.  Admission,  Exclusion,  and 
Deportation  of  Aliens. — See,  generally,  ante,  Aliens,  p.  18;  Chinese  Excluskjn 
Acts,  p.  232;  Civil  Rights,  p.  236. 

1.  Escheats. — Estates  of  Persons  Absent  and  Unheard  of. — The  right  to 
regulate  concerning  the  estate  or  property  of  absentees  is  an  attribute,  which,  in 
its  very  essence,  must  belong  to  all  governments  to  the  end  that  they  may  be  able 
to  perform  the  purposes  for  which  government  exists.^''^ 

664-45b.  Refusal,  ex  mero  matu,  to  companies  at  certain  points  for  the  inter- 
recognize  equitable  defenses  acquiesced  in  change  of  business,  can  not  be  supplied 
and  treated  as  legal  below.— Lutcher,  etc.,  on  judicial  review  by  a  presumption  aris- 
Lumber  Co.  z\  Knight,  217  U.  S.  257,  54  ing  from  the  failure  of  the  carrier  to  pro- 
L.  Ed.  757,  30  S.  Ct.  505,  reversing  84  C.  duce  its  records  to  disprove  what  had  not 
C.  A.  679,  156  Fed.  1022,  and  following  been  established,  where  the  statute  un- 
Burbank  z:  Bigelovv,  154  U.  S..  appx..  558,  "der  which  the  conmiission  acted  confines 
19  L.  Ed.  51,  23  L.  Ed.  542,  14  S.  Ct.  11(53.  the    scope    of    the    judicial    review    of    the 

664-45C.    Rule  of  decision  in  state  court  reasonableness  of  the  order  to   the  testi- 

— Giving  retroactive   effect   to   statute   en-  mony    which    has    been    submitted    to   the 

acted   pending   appeal. — Stricknej'   v.    Kel-  commission.     Oregon  R.,  etc.,  Co.  z'.  Fair- 

sey,  209  U.  S.  419,  52  L.  Ed.  863,  28  S.  Ct.  child,   224   U.   S.   510,   56   L.    Ed.   863,   32    S. 

508.  Ct.  535. 

664-45d.  Confining  scope  of  judicial  re-  665-47a.  Escheats,  estate  of  persons  ab- 
view  to  evidence  submitted  to  railroad  sent  and  unheard  of. — Cunnius  z\  Reading- 
commission.— Oregon  R..  etc.,  Co.  t.  School  Dist.,  198  U.  S.  458,  469,  49  L.  Ed. 
Fairchild,  224  U.  S.  510,  56  L.  Ed.  863,  32  1125,  25  S.  Ct.  721;  Blinn  v.  Nelson,  222 
S.   Ct.  535.  U.  S.   1,  56  L.   Ed.  65,  32  S.  Ct.  1;   Provi- 

664-46.     Presumptions     on     appeal— To  dent  Inst.  v.  Malone,  221  U.  S.  660,  55  L. 

supply   deficiencies   of  evidence. — The   in-  Ed.  899.  31  S.  Ct.  661. 

sufficiency  of  the  evidence  Ijefore  the  state  Bank  accounts  of  absent  and  unknown 

lailroad    commission    to   sustain,     on      the  depositors. — A  state  law  which  deals  with 

ground  of  public  necessity,  under  the  due  savings   accounts  of  depositors  who  have 

process  of  law  clause   of  the  federal  con-  l^een  absent  and  unheard  of,  and  who  have 

stitution,    its     order     requiring     trackage  for  a  long  time  failed  to  exercise  any  ac- 

connections    between    competing     railway  tive  ownership,  and  which  presumes  that 

524 


\'ol.  V 


DUE  PROCESS  OF  LAW. 


666 


20.  Due  Process  in  Criminal  Proceedings — a.  As  to  the  Pozcer  of  the  States 
to  Define  and  Pioiish  Crime  and  Regulate  Criminal  Proceedings. — See  notes  50 
51,  52. 

b.  As  Requiring  Equal  and  Impartial  Justice. — See  ante,  "As  Guaranteeing 
Equal  and  Impartial  Justice  to  All  Persons,"  \l,  E,  2;  "As  to  the  Power  of  the 
State  to  Define  and  Punish  Crime  and  Regulate  Criminal  Proceedings,"  VI,  E, 
20.    See,  also,  ante,  Constitutional  Law,  p.  264. 


such  depositors  have  abandoned  their 
property,  and  which  provides  a  method 
whereby  after  reasonable  notice  the  funds 
standing  to  the  credit  of  such  depositors 
shall  be  turned  over  \o  a  designated  state 
officer  to  be  preserved  until  such  depos- 
itor or  his  representative  shall  appear  to 
claim  it,  or,  failing  that,  until  it  shall  be 
escheated  to  the  state,  is  within  flie  un- 
doubted power  of  the  legislature.  Provi- 
dent Inst.  V.  Malone,  221  U.  S.  660.  55  L 
Ed.  899,  31  S.  Ct.  661,  following  Cunnius 
c'.  Reading  School  Dist.,  198  U.  S.  458,  49 
L.  Ed.  1125,  25  S.  Ct.  721. 

The  propertj"-  of  a  savings  bank  is  not 
taken  without  due  process  of  law  by 
Laws  Mass.  1907,  c.  340,  providing  that 
deposits  which  have  remained  inactive  and 
unclaimed  for  thirty  years,  where  the 
claimant  is  unknown  or  the  depositor  can 
not  be  found,  shall  be  paid  to  the  treas- 
urer and  receiver  general,  to  be  held  bj^ 
him  as  trtistee  for  the  true  owner  or  his 
legal  representatives.  (1911),  Provident 
Tnst.  V.  INIalone,  221  U.  S.  060,  55  L.  Ed. 
S99,  31  S.  Ct.  661,  affirming  judgment 
(1909),  Malone  v.  Provident  Institution 
for  Savings  in  Boston,  86  X.  E.  912,  201 
[Mass.   23. 

666-50.  Pov/er  to  define  and  punish 
crime  reserved  to  the  states. — See,  gen- 
erally, ante,  CONSTITUTIONAL  LAW. 
p.  264.  And  see  ante,  "As  to  Power  of 
State  to  Define  and  Punish  Crime,"  VI, 
A,  8.  e. 

Illustrations,  power  to  punish  acts 
which  "tend"  or  which  are  "calculated"  to 
accomplish  the  prohibited  result. — The 
Texas  anti-trust  laws  of  1809  and  1903  are 
not  so  uncertain  and  indefinite  as  to  be 
unconstitutional  nor  was  there  a  depriva- 
tion of  due  process  of  law  because  the 
statutes  permitted,  and  the  court  charged, 
that  there  might  be  a  conviction  not  onl}- 
for  acts  which  accomplished  the  pro 
hibited  result,  but  also  for  those  which 
tend  or  are  reasonably  calculated  to  bring 
about  the  things  forbidden.  Waters- 
Pierce  Oil  Co.  V.  Texas,  No.  1.  212  U.  S. 
SO.   Ill,   53    L.    Ed.   417,   29   S.    Ct.   220. 

Same — Absolute  offenses — Power  to  ex- 
clude elements  of  knowledge,  negligence, 
etc. — The  power  of  the  legislature  to  de- 
clare an  ofifense  and  to  exclude  the  ele- 
ments of  knowledge  and  due  diligence 
from  any  inquiry  as  to  its  commission  can 
not  be  questioned.  Chicago,  etc.,  R.  Co.  v. 
United  States,  220  U.  S.  559,  55  L.  Ed. 
582,  31  S.  Ct.  612. 


Tor  example,  it  was  competent  for  con- 
gress, in  enacting  the  Safety  Appliance 
Acts  of  March  2,  1893  (27  Stat,  at  L.  531, 
chap.  196,  U.  S.  Comp.  Stat.  1901,  p.  3174), 
April  1,  1896  (29  Stat,  at  L.  85,  c.  87,  U. 
S.  Comp.  Stat.  1901,  p.  3175),  and  March 
2,  1903  (32  Stat,  at  L.  943.  chap.  976,  U. 
S.  Comp.  Stat.  Supp.  1909,  p.  1143),  to 
impose  an  absolute  liability  upon  car- 
riers engaged  in  moving  interstate  com- 
merce, whose  cars  do  not  satisfy  the  re- 
quirements of  those  acts,  so  that  the  car- 
riers whose  cars  do  not  conform  to  the 
requirements  of  those  acts  can  not  escape 
Haliility  by  showing  that  they  exercised 
reasonable  care  in  equipping  their  cars 
with  the  required  safety  appliances,  and 
that  they  used  due  care  and  diligence  to 
keep  them  in  repair  by  the  usual  inspec- 
tion. In  short,  it  was  competent  for  con- 
gress to  impose  upon  the  carriers  an  abso- 
lute duty  which  is  not  discharged  by  the 
exercise  of  reasonable  care  and  diligence. 
Chicago,  etc.,  R.  Co.  v.  United  States,  220 
U.  S.  559,  55  L.  Ed.  582,  31  S.  Ct.  612,  fol- 
lowing St.  Louis,  etc.,  R.  Co.  v.  Taylor. 
210  U.  S.  281,  52  L.  Ed.  1061,  28  S.  Ct. 
616. 

666-51.  Same— Effect  of  fourteenth 
amendment. — The  fourteenth  amendment 
was  not  intended  to,  and  does  not,  limit 
the  powers  of  a  state  in  dealing  with 
crime  committed  within  its  own  borders 
or  with  the  punishment  thereof,  although 
no  state  can  deprive  particular  persons  or 
classes  of  persons  of  equal  and  impartial 
justice  under  the  law.  In  re  Kemmler, 
136  U.  S.  436,  448,  34  L.  Ed.  519,  10  S.  Ct. 
930;  Caldwell  v.  Texas,  137  U.'  S.  692,  34 
L.  Ed.  816,  11  S.  Ct.  224;  Ughbanks  v. 
Armstrong,   208   U.   S.   481,   52   L.    Ed.   582, 

28  S.  Ct.  372. 

666-52.  When  requirements  of  due 
process  satisfied — General  statement. — 
Generally  speaking,  it  may  be  said  that  if 
an  accused  has  been  heard  in  a  court  of 
competent  jurisdiction,  and  proceeded 
against  under  the  orderly  processes  of 
law,  and  only  punished  after  inquiry  and 
investigation,  upon  notice  to  him,  with 
an  opportunity  to  be  heard,  and  a  judg- 
ment awarded  within  the  authority  of  a 
constitutional  law,  then  he  has  due  proc- 
ess of  law.  Ong  Chang  Wing  v.  United 
States,  218  U.  S.  272,  54  L.  Ed.  1040,  31 
S.  Ct.  15;  Rogers  v.  Peck,  199  U.  S.  425, 
435.  50  L.  Ed.  256,  26  S.  Ct.  87;  Twining 
V.  New  Jersey,  211  U.  S.  78,  53  L.  Ed.  97. 

29  S.   Ct.  14,  and  the  cases  therein  cited. 


52c 


667  DUE  PROCESS  OF  LAW.  Vol.  V. 

c.  As  Requiring  Full  Judicial  Trial;  Summary  Proceedings. — See,  also,  ante, 
"Summary  Destruction  of  Property  Kept,  Sold  or  Used  in  Violation  of  Law,"  VI, 
D,  2,  b,  (4),  (b),  (ee)  ;  "Judicial  Proceeding  Not  Always  Required,"  VI,  E,  1, 

f,  (2). 

Commitment  under  Executive  Process  in  Time  of  Insurrection  or 
Other  Police  Danger. — When  it  comes  to  a  decision  by  the  head  of  the  state 
upon  a  matter  involving  its  life,  the  ordinary  rights  of  individuals  must  yield  to 
what  he  deems  the  necessities  of  the  moment.  Open  insurrection  or  other  public 
danger  warrants  the  substitution  of  executive  for  judicial  process. ^^^  The  gov- 
ernor's declaration  that  a  state  of  insurrection  exists  is  conclusive  of  that  fact.^'^'* 
So  long  as  such  arrests  are  made  in  good  faith  and  in  the  honest  belief  that  they 
are  needed  in  order  to  head  the  insurrection  off,  the  governor  is  the  final  judge 
and  can  not  be  subjected  to  an  action  after  he  is  out  of  office  on  the  ground  that 
he  had  not  reasonable  ground  for  his  belief. ^^^  This  is  true  not  only  with  regard 
to  killing  men  in  the  actual  clash  of  arms,  but  t\je  same  is  true  of  temporary  de- 
tention to  prevent  apprehended  harm.^^*^ 

d.  As  Requiring  a  Competent  Tribunal. — See,  also,  ante,  "Generally;  Require- 
ment Satisfied  by  Regular  Course  of  Proceedings  before  a  Competent  Tribunal," 
VI,E,  1,  f,  (1). 

Insanity  of  Juror. — Due  process  implies  a  tribunal  both  impartial  and 
mentally  competent  to  afford  a  hearing.  But  to  say  that  due  process  is  denied 
when  a  competent  state  court  refuses  to  set  aside  the  verdict  of  a  jury  because 
the  sanity  of  one  of  its  members  was  established  by  only  a  preponderance  of  evi- 
dence would  be  to  enforce  an  exaction  unknown  to  the  precedents  of  the  past, 
and  an  interference  with  the  discretion  and  power  of  the  state  not  justified  by 
the  demands  of  justice,  nor  recognized  by  any  definition  of  due  process. ^^^ 

e.  As  Securing  the  Benefit  of  the  First  Ten  Amendments  to  the  Accused  in  a 
State  Court. — See,  generally,  ante,  Constitutional  Law,  p.  264.  See,  also,  ante, 
"Effect  of  Fourteenth  Amendment  as  Forbidding  the  States  to  Abridge  the 
Rights  Secured  by  the  First  Ten  Amendments,"  VI,  A,  3. 

Due  Process  as  Guaranteeing  Exemption  from  Self-incrimination. — 
The  privilege  of  the  exemption  from  self-incrimination,  if  fundamental  in  any 
sense,  is  not  fundamental  in  due  process  of  law,  nor  an  essential  part  of  it.^^' 

As  Forbidding  Accused  to  Be  Placed  Twice  in  Jeopardy. — A  specific 
contention  on  the  trial  of  a  criminal  cause  in  a  state  court,  that  the  denial  of  the 
accused  of  the  benefit  of  his  plea  of  former  jeopardy  operates  to  deprive  him  of 

667-55a.    Commitment    under    executive  government    to   suppress    an   insurrection, 

process   in  time   of  insurrection  or   other  does   not    deprive    the   person   imprisoned 

pubUc  danger. — Moyer  v.  Peabody,  212  U.  of  his  Hberty  without  due  process  of  law. 

S.   78,   53   L.   Ed.   410,  29   S.   Ct.  235.     See,  Moyer  v.  Peabody,  212  U.  S.  78.  53  L.  Ed. 

also,  Keely  v.  Sanders,  99   U.   S.   441,  446,  410,  29  S.  Ct.  235. 

25  L.  Ed.  327.  667-55e.    Insanity    of    juror. — Jordan    v. 

667-55b.     Governor's    declaration    as    to  Massachusetts,    225  U.    S.  167,    56    L.    Ed. 

existence    of     insurrection      conclusive. —  1038,  32  S.  Ct.  651. 

Moyer  v.  Peabody,  212  U.  S.  78,  53  L.  Ed.  667-55f.     Due    process    as    guaranteeing 

410,  29  S.  Ct.  235.  exemption        from        self-incrimination.— 

667-55C.    Civil  action  against   governor.  Twining  v.   New  Jersey,  211  U.   S.   78,  53 

—Moyer  v.  Peabody,  212  U.   S.   78,  85,   53  L.  Ed.  97,  29  S.  Ct.  14. 

L.   Ed.  410.  29   S.   Ct.  235.  Exemption    from     self-incrimination      is 

667-55d.  Temporary  detentions. — Moyer  not  safeguarded  as  against  state  action  by 

V.  Peabody,  212  U.  S.  78,  85,  53  L.  Ed.  410,  the  provision  of  Const.  U.   S.  Amend.   14, 

29  S.  Ct.  235.  that  no  state  shall  deprive  any  person  of 

Imprisonment    for     two      and      one-half  life,    liberty,    or     property      without      due 

months  under  the  order  of  the  governor  process  of  law.     Judgment,  State  of  New 

of   a   state,   without   sufficient   reason,   but  Jersey  v.   Twining   (1906),   64   A.   1073,   73 

in  good  faith,  in  the  exercise  of  his  power  N.  J.  Law.  683,  affirmed.     Twining  v.  New 

under   the   state   constitution   and   laws   to  Jersey,   211   U.   S.   78,   53   L.   Ed.   97,   29   S. 

call    upon    the    military    arm    of   the    state  Ct.  14. 

526 


Vol.  V. 


DUB  PROCESS  OF  LAW. 


667 


his  liberty  without  due  process  of  law,  contrary  to  U.  S.  const.,  fourteenth  amend- 
ment, raises  a  federal  question  which  will  sustain  a  writ  of  error  from  the  fed- 
eral supreme  court  to  review  the  judgment  of  the  highest  court  of  the  state,  af- 
firming the  conviction  below. ■''^'° 

As  Protecting  the  Accused  against  the  Enforcement  of  Ex  Post  Facto 
Laws  and  Punishments. — The  due  prQcess  of  law  secured  to  the  people  of 
the  Philippine  Islands  by  Act  July  1,  1902,  c.  1369,  §  5,  32  Stat.  692,  was  not  de- 
nied by  the  affirmance  in  the  supreme  court  of  the  Philippine  Islands  of  a  con- 
viction of  the  offense  described  in  Philippine  Penal  Code,  art.  343,  which  was  re- 
pealed after  the  conviction  and  sentence  in  the  court  of  first  instance  by  the  act 
of  the  Philippine  commission  of  October  9,  1907,  Act  No.  1757,  the  repealing  act 
also  providing  for  the  punishment  of  the  same  offense,  and  within  limitations  not 
exceeded  by  the  sentence  imposed  under  the  former  act.^^'^ 

f.  Due  Process  as  Requiring  an  Indictment  by  a  Grand  Jury;  Number  of  Grand 
Jurors. — See  note  56. 


667-55g.  As  forbidding  accused  to  be 
placed  twice  in  jeopardy. — Keerl  v.  Mon- 
tana, 213  U.  S.  135,  53  L.  Ed.  734,  29  S. 
Ct.    169. 

Whether  or  not,  however,  the  denial  to 
the  accused  of  the  benefit  of  his  plea  of 
former  jeopardy  constituted  a  denial  of 
due  process  of  law  within  the  meaning  of 
the  fourteenth  amendment  was  not  de- 
cided in  this  case  because  the  decision 
went  off  upon  the  point  that  a  plea  of 
former  jeopardy  could  not  be  based  upon 
the  discharge  of  the  jury  at  a  former  trial 
because  of  their  inability  to  agree  upon 
a  verdict  after  they  had  been  out  for 
twenty-four  hours.  Keerl  v.  Montana,  213 
U.  S.  135,  53  L.  Ed.  734,  29  S.   Ct.  469. 

The  contention  that  a  second  convic- 
tion of  a  public  officer  for  failing,  on  de- 
mand, to  pay  over  certain  public  moneys, 
deprives  him  of  his  liberty  without  due 
process  of  law,  in  violation  of  Const.  U. 
S.  Amend.  14,  by  twice  subjecting  him  to 
jeopardy  for  the  same  offense,  presents 
no  federal  question  which  will  sustain  a 
writ  of  error  from  the  federal  supreme 
court  to  the  highest  court  of  a  state, 
where  the  latter  court  decides  that  the 
accused  was  not  put  in  jeopardy  by  his 
prior  conviction,  because  such  conviction 
was  reversed  on  the  ground  that  there 
had  then  been  no  legal  demand.  Shoener 
V.  Commonwealth,  207  U.  S.  188,  52  L. 
Ed.  163,  28  S.  Ct.  110. 

667-55h.  Expost  facto  laws  and  pun- 
ishments— Affirmance  of  conviction  under 
statute  since  repealed. — Ong  Chang  Wing 
V.  United  States,  218  U.  S.  272,  54  L.  Ed. 
1040,  31  S.  Ct.  15.  See,  also,  ante,  CON- 
STITUTIONAL LAW,  p.  264. 

Speaking  of  this  case,  the  court  says: 
"In  the  present  case  there  can  be  no 
doubt  that  the  law-making  power  in  the 
Philippine  Islands  could,  by  statutory  en- 
actment, have  preserved  the  right  to 
prosecute  and  punish  offenses  committed 
in  violation  of  the  former  law  wliile  in 
force   in   the   islands,   notwithstanding  the 


repeal  of  the  act.  The  effect  of  the  de- 
cision of  the  Philippine  supreme  court  is 
to  hold  that  under  the  law  and  local  stat- 
utes, the  repealing  act  re-enacting  sub- 
stantially the  former  law,  and  not  in- 
creasing the  punishment  of  the  accused, 
the  right  still  exists  to  punish  the  accused 
for  an  oft'ense  of  which  they  were  con- 
victed and  sentenced  before  the  passage 
of  the  later  act.  In  other  words,  the  ef- 
fect of  the  decision  construing  the  local 
law  is  to  accomplish  what  it  was  clearly 
within  the  power  of  the  legislative  au- 
thority to  do  by  an  express  act  saving  the 
right  to  proceed  as  to  offenses  already 
committed.  The  accused  have  not  been 
punished  for  a  crime  which  was  not 
punishable  when  committed  by  the 
sentence  imposed.  The  supreme  court 
has  only  held  that  the  right  to  impose 
the  penalty  of  the  law  under  the  Philip- 
pine Penal  Code  has  not  been  taken  away 
by  the  subsequent  statute.  We  are  un- 
able to  see  that  due  process  of  law, 
which  is  the  right  of  a  person  accused 
of  a  crime,  when  prosecuted  within  a  ju- 
risdiction wherein  the  constitution  of  the 
United  States,  or  a  statute  embracing  its 
provisions,  is  in  force,  has  been  denied." 
Ong  Chang  Wing  v.  United  States,  218 
U.    S.  272,   54   L.   Ed.   1040,   31   S.   Ct.   15. 

667-56.  Due  process  as  requiring  indict- 
ment by  grand  jury.— Due  process  of  law 
does  not  require  that  a  criminal  charge 
be  presented  by  an  indictment  found  by  a 
grand  jury.  Dowdell  v.  United  States, 
221  U.  S.  325,  55  L.  Ed.  753,  31  S.  Ct.  590; 
Jordan  v.  Massachusetts,  225  U.  S.  167, 
56  L.   Ed.  1038,   32   S.   Ct.   651. 

Due  process  is  not  denied  in  criminal 
cases  by  a  state  law  which  dispenses  with 
a  grand  jury  indictment  and  permits  a 
prosecution  upon  information.  Jordan  v. 
Massachusetts,  225  U.  S.  167,  56  L.  Ed. 
1038,  32  S.  Ct.  651;  Graham  v.  West  Vir- 
ginia, 224  U.  S.  616,  56  L.  Ed.  917,  32  S.. 
Ct.  583. 


527 


670-674 


DUB  PROCESS  OF  LAW. 


Vol.  V. 


i.  Form  and  Sufficiency  of  Indictment. — See  post,  Indictments,  Informa- 
tions, Prp:sentments,  and  Complaints. 

k.  Due  Process  in  the  Granting  and  Refusing  of  Motions,  Challenges,  etc. — 
See,  generally,  post,  Evidence;  Grand  Jury;  Jury.  As  to  due  process  in  the 
granting  or  denial  of  a  motion  for  a  continuance,  see  ante,  Continuances,  p.  371. 

1.  Jur\  Trial  Not  Essential ;  Number,  Qualification,  and  Selection  of  Jurors. — 
See  note  62. 

n.   Due  Process  in  the  Admission  and  Exclusion  of  Evidence. — See  note  68. 

o.  Instructions. — See  post.  Instructions.  As  to  instructions  in  specific  cases, 
see  the  appropriate  titles  in  this  supplement. 

q.   Punishments:  Kind,  Degree  and  Manner  of  Enforcement. — See  note  78. 


670-62.  Jury  trial  not  essential — Num- 
ber, qualification,  and  selection  of  jurors. 

— In  criminal  cases,  due  process  of  law 
is  not  denied  by  a  state  law  which  dis- 
penses with  a  grand  jury  indictment  and 
permits  prosecution  upon  information, 
nor  by  a  law  which  dispenses  with  the 
necessity  of  a  jury  of  twelve,  or  una- 
nimity in  the  verdict.  Indeed,  the  re- 
quirement of  due  process  does  not  de- 
prive a  state  of  the  power  to  dispense 
with  jury  trial  altogether.  Hurtado  v. 
California,  110  U.  S.  516,  28  L.  Ed.  232,  4 
S.  Ct.  Ill,  292;  Maxwell  v.  Dow,  176  U. 
S.  581,  44  L.  Ed.  597,  20  S.  Ct.  448.  When 
the  essential  elements  of  a  court  having 
jurisdiction  in  which  an  opportunity  for 
a  hearing  is  afforded  are  present,  the 
power  of  a  state  over  its  methods  of  pro- 
cedure is  substantially  unrestricted  by  the 
due  process  clause  of  the  constitution. 
Jordan  v.  Massachusetts,  225  U.  S.  167, 
56  L.  Ed.  1038,  1042.  32  S.  Ct.  651.  See, 
generally,  post,  JURY. 

Fine  and  ouster  of  corporation  by  quo 
warranto  proceeding  in  state  court  of  last 
resort. — See  ante,  "As  to  Form  of  Judg- 
ment or  Decree,"  VI,   E,   15. 

672-68.  States  to  prescribe  evidence  to 
be  received  in  state  court. — See,  generally, 
ante,  CONSTITUTIONAL  LAW,  p. 
264;  post,  EVIDENCE. 

As  to  the  power  of  the  state  to  create 
prima  facie  presumptions,  see  ante,  CON- 
STITUTIONAL LAW,  P-  264.  See,  also, 
ante,  "Statutes  Affecting  Rules  of  Evi- 
dence," VI,  E,  12. 

As  to  the  privilege  of  the  accused 
against  self-incrimination  see  ante,  "As 
Securing  the  Benefit  of  the  First  Ten 
Amendments  to  the  Accused  in  a  State 
Court,"  VI,  E,  20,  e.  See,  also,  ante, 
CONSTITUTIONAL  LAW,  p.  264. 

Weight  of  evidence  on  issue  as  to 
sanity  of  juror, — One  convicted  of  crime 
in  a  state  court  is  not  denied  due  process 
of  law  because,  on  the  motion  for  a  new 
trial,  based  upon  the  suggestion  of  the 
insanity  of  a  juror,  at  the  time  of  the 
trial,  and  it  being  shown  that  such  juror 
was  insane  at  a  time  subsequent  to  the 
trial,   the   state,   conformably   to   the   local 


law,  was  only  required  to  establish  the 
sanity  of  the  juror  at  the  time  of  the 
trial  by  a  fair  preponderance  of  the  evi- 
dence, and  not  beyond  a  reasonable 
doubt.  Jordan  v.  Massachusetts,  225  U. 
S.  167^  56  L.   Ed.  1038,  32  S.  Ct.  651. 

The  proceeding  here  in  question  was  in 
absolute  conformity  to  the  Massachusetts 
law  of  criminal  procedure,  and  no  fun- 
damental principle  of  justice  was  violated 
by  a  determination  of  the  mental  capacity 
of  the  juror  by  a  preponderance  of  the 
evidence.  Neither  is  there  any  estab- 
lished rule  of  the  common  law  incon- 
sistent with  the  practice  adopted  in  this 
case.  There  are  many  decisions  in  ac- 
cord with  the  Massachusetts  view  of  the 
law,  among  theni  being:  State  v.  Scott, 
8  N.  C.  (1  Hawks)  24;  Burik  v.  Dundee 
Woolen  Co.,  66  N.  J.  L.  420,  49  Atl.  442; 
State  V.  Howard,  118  Mo.  127,  24  S.  W. 
41;  Surles  v.  State,  89  Ga.  167,  15  S.  E. 
38;  Jordan  v.  Massachusetts,  225  U.  S- 
167,   56   L.   Ed.   1038,   32   S.   Ct.   651. 

674-78.  Punishments,  kind,  degree  and 
manner  of  enforcing. — "The  fixing  of 
punishment  for  crime  or  penalties  for  un- 
lawful acts  against  its  laws  is  within  the 
police  power  of  the  state.  We  can  only 
interfere  with  such  legislation  and  judicial 
action  of  the  states  enforcing  it  if  the 
fines  imposed  are  so  grossly  excessive  as 
to  amount  to  a  deprivation  of  property 
without  due  process  of  law."  Waters- 
Pierce  Oil  Co.  V.  Texas,  No.  1,  212  U. 
S.  86,  111,  53  L.  Ed.  417,  29  S.  Ct.  220; 
Coffey  V.  County  of  Harlan,  204  U.  S. 
059.   51   L.    Ed.   666. 

Penalties  imposed  by  the  jury  and  con- 
firmed by  the  state  courts  at  the  rate  of 
$1,500  and  $50  per  day  for  violating,  re- 
spectively, through  a  series  of  years,  the 
Texas  anti-trust  laws  of  May  25.  1899 
(Laws  1899,  p.  246.  c.  146),  and  of  March 
31,  1903  (Laws  1903,  p.  119,  c.  94).  are  not 
so  excessive  as  to  deprive  the  defendant 
corporation  of  its  property  without  due 
process  of  law,  where  such  property 
amounts  to  more  than  $40,000,000,  and  its 
dividends  have  been  as  high  as  700  per 
cent  per  annum.  Judgment  (Tex.  Civ. 
App.  1908),  106  S.  W.  918,  affirmed.  Waters- 


528 


\^ol.  V. 


DUB  PROCESS  OF  LAW. 


676 


s.  Appeal,  Writ  of  Error,  Ne%v  Trial,  etc. — See,  generally,  ante,  "As  Guaran- 
teeing Right  of  Appeal,  Rehearing,  or  Other  Form  of  Review,"  VI,  E,  17;  "Due 
Process  on  Appeal  or  Writ  of  Error,"  VI,  E,  18.  See,  also,  ante,  Appeal  and 
Error,  p.  34;  Constitutional  Law,  p.  264.  As  to  discriminating  in  favor  of 
the  government  and  against  the  accused  in  the  matter  of  the  right  to  appeal,  see 
ante.  Constitutional  Law,  p.  264.  See,  also,  ante,  "As  Guaranteeing  Right  of 
Appeal,  Rehearing,  or  Other  Form  of  Review,"  VI,  E,  17.  As  to  judgment  of 
fine  and  ouster  of  foreign  corporations  by  quo  warranto  proceedings  under  the 
original  jurisdiction  of  a  state  court  of  last  resort,  see  ante,  "As  to  Form  of  Judg- 
ment or  Decree,"  \'I,  E,  15. 

VII.  Remedies. 

A.  Generally  of  the  Right  to  Some  Form  of  Remedy. — See  note  84. 


Pierce  Oil  Co.  v.  Texas,  No.  1.  212  U.  S. 
86,    53    L.    Ed.    417,    29    S.    Ct.  -220. 

Double  damages  or  penalties  in  certain 
cases. — See  ante,  "Laws  Respecting  Dam- 
ages  and  Penalties,"  VI,   E,   13. 

Forfeiture  of  charter  for  violation  of 
law. — See  ante,  "Laws  Respecting  Dam- 
ages  and   Penalties,"'  VI,   E,   13. 

Increased  punishment  for  subsequent 
offenses — Manner  of  ascertaining  and  en- 
forcing.—See.  also,  ante,  CONSTITU- 
TIONAL LAW,  p.  264. 

A  former  convict  is  not  denied  due 
process  of  law  by  bringing  him,  after  con- 
viction, before  the  court  of  another  county 
in  a  separate  proceeding  instituted  con- 
form.able  to  W.  Va.  Code,  chap.  16.5,  §§  1-5, 
by  information  charging  him  with  prior 
convictions,  w^hich  were  not  alleged  in  the 
indictment  on  which  he  was  last  tried  and 
convicted,  and,  on  the  finding  of  the  jury 
that  he  was  the  former  convict,  sentencing 
him  to  the  additional  punishment  which 
chap.  152,  §§  23,  24,  in  such  cases  pre- 
scribes. Grahain  v.  West  Virginia,  224  U. 
S.  616,  56  L.  Ed.  917,  32  S.  Ct.  583. 

It  can  not  be  said  that  tlie  prisoner  was 
deprived  of  due  process  of  law  because 
the  question  as  to  former  conviction  was 
passed  upon  separately.  While  it  is  fa- 
miliar practice  to  set  forth  in  the  indict- 
ment the  fact  of  prior  conviction  of  an- 
other offense,  and  to  submit  to  the  jury 
the  evidence  upon  that  issue,  together 
with  that  relating  to  the  commission  of 
the  crime  which  the  indictment  charges, 
still  in  its  nature  it  is  a  distinct  issue,  and 
it  may  appropriately  be  the  subject  of  sep- 
arate determination.  Graham  v.  West 
Virginia,  224  U.  S.  616,  56  L.  Ed.  917,  32 
S.  Ct.  583. 

Nor  is  there  any  reason  why  such  a  pro- 
ceeding should  not  be  prosecuted  upon  an 
information  presented  by  a  competent 
public  officer  on  his  oath  of  office.  There 
is  no  occasion  for  an  indictment.  To  re- 
peat, the  inquiry  is  not  into  tlie  commis- 
sion of  an  offense;  as  to  this,  indictment 
has  already  been  found  and  the  accused 
convicted.  There  remains  simply  the 
question  as  to  the  fact  of  previous  convic- 

12  U  S   Enc— 34  529 


tion.  And  it  can  not  be  contended  that  in 
proceeding  by  information  instead  of  by 
indictment,  there  is  any  violation  of  the 
requirement  of  due  process  of  law.  Gra- 
ham V.  West  Virginia,  224  U.  S.  616,  56  L. 
Ed.  917,  32  S.  Ct.  583;  Hurtado  v.  Califor- 
nia, 110  U.  S.  516,  28  L.  Ed.  232,  4  S.  Ct. 
Ill,  292;  Brown  v.  New  Jersey,  175  U.  S. 
172,  175,  44  L.  Ed.  119,  20  S.  Ct.  77;  Max- 
well V.  Dow,  176  U.  S.  581,  44  L.  Ed.  597, 
20   S.   Ct.  448. 

Same — Indeterminate  Sentence  Acts.— A 
person  sentenced  under  the  Indeterminate 
Sentence  Act  (Pub.  Acts  1903,  No.  136) 
after  having  been  twice  before  convicted 
of  felony  is  not  imprisoned  without  due 
process  of  law  because  he  is  deprived  by 
that  act  of  the  privilege  therein  accorded 
to  other  convicts  at  the  end  of  the  mini- 
mum term  of  the  sentence  to  make  appli- 
cation for  parole,  though  it  gives  no  hear- 
ing on  the  question  of  prior  conviction. 
Ughbanks  v.  Armstrong,  208  U.  S.  481,  52 
L.  Ed.  582,  28  S.   Ct.  372. 

Fine  and  ouster  of  corporation  in  quo 
warranto  proceedings  before  state  court 
of  last  resort. — See  ante,  "As  to  Form  of 
Judgment  or  Decree,"  VI,  E,  15. 

676-84.  Right  of  access  to  the  courts — 
Penalties  so  severe  as  to  deter  resort  to 
the  courts  to  test  law. — See,  also,  ante, 
CONSTITUTIONAL  LAW,  p.  264. 

A  statute  providing  for  the  establish- 
ment of  rates  for  railroad  transportation 
without  giving  the  corporation  an  oppor- 
tunity to  be  heard,  which  fixes  penalties 
for  disobedience  of  its  provisions  by  fines 
so  enorinous  and  imprisonment  so  severe 
as  to  intimidate  the  corporations  and  their 
officers  from  resorting  to  the  courts  to 
test  the  validity  of  the  rates,  is  unconsti- 
tutional, on  its  face,  and  without  regard 
to  the  sufficiency  of  the  rates  as  depriving 
the  corporations  of  the  equal  protection 
of  the  laws.  Ex  parte  Young,  209  U.  S. 
123,  52  L.  Ed.  714,  28  S.  Ct.  441. 

Whether  or  not  a  railroad  company  is 
deprived  of  the  equal  protection  of  the 
laws,  and  its  property  rendered  liable  to 
be  taken  without  due  process  of  law,  by 
a  state  statute  providing  for  the  establish- 


676-680 


DUE  PROCESS  OF  LAW 


Vol.  V. 


B.  Remedy  against  the  United  States. — See  notes  85,  91,  95. 

C.  Remedy  against  a  State. — See  notes  96,  1,  3,  5. 


ment  of  rates  of  transportation,  because 
the  penalties  fixed  for  violation  of  the 
statute  are  so  enormous  as  to  require  obe- 
dience to  the  law  rather  than  risk  the  pen- 
alties in  testing  it,  although  such  obedi- 
ence might,  in  the  end,  result  in  confisca- 
tion of  the  railroad  property,  is  a  federal 
question,  within  the  jurisdiction  of  the 
circuit  court  of  the  United  States.  Ex 
parte  Young,  209  U.  S.  123,  52  L.  Ed.  714, 
28  S.  Ct.  441. 

Section  4  of  the  North  Carolina  act  of 
1907  (Pub.  Laws  1907,  p.  250,  c.  216), 
prescribing  the  maximum  rates  which 
may  be  charged  by  railroad  companies 
for  the  carriage  of  passengers  within  the 
state,  which  provides  that  any  railroad 
company  violating  any  provision  of  the 
act  shall  be  liable  to  a  penalty  of  $500  for 
each  violation  payable  to  the  person  ag- 
grieved, and  any  agent  of  such  company 
violating  the  act  shall  be  guilty  of  a  mis- 
demeanor and  subject  to  fine  and  im- 
prisonment or  both,  is  unconstitutional 
as  a  denial  to  the  railroad  companies  of 
the  equal  protection  of  the  laws  by  sub- 
jecting them  to  excessive  and  ruinous 
penalties  if  they  exercise  their  right  to 
contest  the  validity  of  the  law  in  the 
courts.  (C.  C.  1907)  Ex  parte  Wood,  155 
F.  190,  judgment  affirmed.  Hunter  v. 
Wood,  209  U.  S.  205,  52  L.  Ed.  747,  28  S. 
Ct.  472. 

676-85.  Right  to  remedy  against  the 
United  States. — See  post,  "Particular 
Remedies,"  VII,  E. 

677-91.  But  contract  implied  where 
government  takes  land  to  which  it  makes 
no  claim. — A  private  right  of  way  is  an 
easement  and  is  land  for  which  an  action 
ex  contractu  against  the  United  States 
will  lie  when  such  right  of  way  is  de- 
stroyed by  the  flooding  of  land  actually 
taken  by  the  government  in  the  construc- 
tion of  a  dam.  The  same  reasoning  which 
allows  a  recovery  for  the  taking  of  land 
by  permanent  occupation  allows  it  for  a 
right  of  way  taken  in  the  same  manner; 
and  the  value  of  the  easement  can  not  be 
determined  without  reference  to  the  dom- 
inant estate  to  which  it  is  attached. 
United  States  z:  Welch,  217  U.  S.  3.33,  54 
L.   Ed.  787,  30  S.  Ct.  527. 

678-95.  Suit  against  individual  officers. 
— See  post,  "Particular  Remedies,"  VII,  E. 

678-96.  Remedy  against  state. — See 
post,  "Particular  Remedies,"  VII,  E.  See, 
generally,  as  to  suits  against  states,  post, 
STATES. 

679-1.  Immunity  from  suit  not  to  be 
interpreted  as  nullifying  the  fourteenth 
amendment. — Hopkins  f.  Clemson  Agri- 
cultural College,  221  U.  S.  636,  55  L.  Ed. 
890,  31   S.   Ct.   654. 


680-3.  Unconstitutional  law  of  no  valid- 
ity.— A  void  act  is  neither  a  law  nor  a 
command.  It  is  a  nullity.  It  confers  no 
authority.  It  affords  no  protection.  Who- 
ever seeks  to  enforce  unconstitutional 
statutes,  or  to  justify  under  them,  or  to 
obtain  immunity  through  them,  fails  in 
his  defense  and  in  his  claim  of  exemption 
from  suit.  Hopkins  v.  Clemson  Agricul- 
tural College,  221  U.  S.  636,  55  L.  Ed.  890, 
31  S.  Ct.  654. 

680-5.  May  sue  or  resist  individuals  rep- 
resenting the  state. — Immunity  from  suit 
is  a  high  attribute  of  sovereignty,  prerog- 
ative of  the  state  itself,  which  can  not 
be  availed  of  by  public  agents  when  sued 
for  their  own  torts.  The  eleventh  amend- 
ment was  not  intended  to  afford  them 
freedom  from  liability  in  any  case  where, 
under  color  of  their  office,  they  have  in- 
jured one  of  the  state's  citizens.  To  grant 
them  such  immunity  would  be  to  create 
a  privileged  class,  free  from  liability  for 
wrongs  inflicted  or  injuries  threatened. 
Public  agents  must  be  liable  to  the  law, 
unless  they  are  to  be  put  above  the  law. 
For  how  "can  these  principles  of  individ- 
ual liberty  and  right  be  maintained  if, 
when  violated,  the  judicial  tribunals  are 
forbidden  to  visit  penalties  upon  individ- 
ual offenders  *  *  *  whenever  they  in- 
terpose the  shield  of  the  state?  *  *  * 
The  whole  frame  and  scheme  of  the  polit- 
ical institutions  of  this  country,  state  and 
federal  protest"  against  extending  to  any 
agent  the  sovereign's  exemption  from  le- 
gal process.  Hopkins  v.  Clemson  Agri- 
cultural College,  221  U.  S.  636,  55  L.  Ed. 
890,  31  S.  Ct.  654;  Poindexter  v.  Green- 
how,  114  U.  S.  270,  291,  29  L.  Ed.  185,  5  S. 
Ct.    903. 

Same — Flooding  of  land  by  state  col- 
lege— Liability  to  suit. — The  doctrine 
that  the  flooding  of  land  caused  by  the 
erection  of  a  dam  is  a  substantial  taking 
of  the  land  for  which  compensation  must 
be  made  under  the  due  process  clause  of 
the  fourteenth  amendment  applies  to  the 
case  of  an  agricultural  college  owned  and 
maintained  by  the  state,  and  which,  in  an 
attempt  to  prevent  the  flooding  of  its  own 
lands  by  the  building  of  an  embankment, 
has  flooded  the  lands  of  an  individual 
proprietor.  And  neither  the  college  nor 
the  individual  officers  erecting  and  main- 
taining such  emliankment  can  escape  li- 
ability from  suit  on  the  plea  that  the 
action  is,  in  effect,  against  the  state.  Hop- 
kins V.  Clemson  Agricultural  College,  221 
U.   S.  636,   55   L.   Ed.  890,  31   S.   Ct.  654. 

"But  the  plaintiff  is  not  seeking  here  to 
hold  the  College  liable  for  the  nonfea- 
sance or  misfeasance  either  of  its  own  of- 
ficers or  officers  of  the  public.  This  is  a 
suit  against  the  College  itself  for  its  own 


530 


Vol.  V. 


DUB  PROCESS  OF  LAW. 


680 


E.  Particular  Remedies. — See,  generally,  the  specific  titles,  such  as,  ante. 
Actions,  p.  7;  Civiiv  Rights,  p.  236;  Damages,  p.  455;  post,  Ejectment;  Emi- 
nent Domain;  Habeas  Corpus;  Injunctions;  Mandamus;  Prohibition;  Re- 
moval OF  Causes.  See,  also,  ante,  "Decision  of  State  Court  Conclusive  as  to 
Whether  Act  or  Proceeding  Was  in  Conformity  to  State  Law  and  Practice,"  \'I, 
B,  4;  "Scope  of  Review  by  Federal  Supreme  Court,"  VI,  B,  6. 

Remedy  by  Injunction — Enjoining  Civil  and  Criminal  Proceedings. — 
A  court  of  equity  has  no  jurisdiction  over  the  prosecution,  the  punishment,  or 
the  pardon  of  crimes  and  misdemeanors.  To  assume  such  a  jurisdiction,  or  to 
sustain  a  bill  in  equity  to  restrain  or  relieve  against  proceedings  for  the  punish- 
ment of  offenses,  is  to  invade  the  domain  of  the  courts  of  the  common  law,  or 
of  the  executive  and  administrative  department  of  the  government. ^^  But  a  dis- 
tinction obtains  when  it  is  found  to  be  essential  to  the  protection  of  the  property 
rights,  as  to  which  the  jurisdiction  of  a  court  of  equity  has  been  invoked,  that  it 
should  restrain  the  defendant  from  instituting  criminal  actions  involving  the 
same  legal  questions.  This  is  illustrated  in  the  decisions  in  which  ofhcers  have 
been  enjoined  from  bringing  criminal  proceedings  to  compel  obedience  to  un- 
constitutional requirements.  In  this,  there  is  no  attempt  to  restrain  a  court  from 
trying  persons  charged  with  crime,  or  the  grand  jury  from  the  exercise  of  its 
functions,  but  the  injunction  binds  the  defendant  not  to  resort  to  criminal  pro- 
cedure to  enforce  illegal  demands.^'' 

As  to  State  Affairs — Attorney  General,  etc. — Individuals  who,  as  officers 
of  the  state,  are  clothed  with  some  duty  in  regard  to  the  enforcement  of  the  laws 
of  the  state,  and  who  threatened  and  are  about  to  commence  proceedings,  either 


corporate  act  in  building  a  dyke,  where 
by  the  channel  had  been  narrowed,  the 
swift  current  had  been  diverted  from  the 
usual  course  across  the  plaintiff's  farm, 
and,  as  it  is  alleged,  destroying  the  banks, 
washing  away  the  soil  and  for  all  practical 
purposes  as  effectually  depriving  him  of 
his  property  as  if  there  had  been  a  phys- 
ical taking."  Hopkins  v.  Clemson  x\gri- 
cultural  College,  221  U.  S.  636,  647,  55  L. 
Ed.  890,  31   S.  Ct.  654. 

Same — Pleading  —  Jurisdiction. — The 
prayer  for  the  removal  of  a  dyke  con- 
structed by  a  state  college  under  state 
authority  on  state  land  may  be  stricken 
from  the  bill  without  affecting  the  juris- 
diction of  the  court  to  hear  and  determine 
the  question  whether  the  college,  by 
building  such  dyke  for  its  own  proprie- 
tary and  corporate  purposes,  is  liable  to 
an  opposite  riparian  owner  for  damag- 
ing or  taking  his  land  without  due  process 
of  law.  (1911),  Hopkins  v.  Clemson  Agri- 
cultural College,  221  U.  S.  636,  55  L.  Ed. 
890,  31  S.  Ct.  654,  reversing  judgment 
(1907)    57   S.   E.   551,  77   S.   C.   12. 

Same — Inability  to  enforce  judgment. — 
"As  a  matter  of  fact,  the  record  indicates 
that  besides  the  state's  annual  appropria- 
tion and  the  interest  on  securities  held 
under  the  residuary  clause  of  Dr.  Clem- 
son's  will,  the  College  has  other  sources 
of  income.  It  appears  to  own  some  land 
in  fee  simple.  The  charter  authorizes  it 
to  receive  bequests.  So  that  if  the  Fort 
Hill  place  is  not  subject  to  levy  and  sale, 
it  does  not  follow  that  the  institution  may 


not  now  or  hereafter  own  property  out  of 
which  a  judgment  in  plaintiff's  favor 
could  be  satisfied.  Besides,  we  have  no 
right  to  proceed  on  the  theory  that  if,  at 
the  end  of  the  litigation,  plaintiff  estali- 
lishes  his  right  to  damages,  the  judgment 
would  not  be  paid.  These  suggestions, 
though  made  in  a  plea  to  the  jurisdiction, 
afford  no  reason  why  the  College  should 
be  granted  immunity  from  suit,  when  it 
is  claimed  that,  in  violation  of  the  con- 
stitution, it  has  taken  private  property 
for  its  corporate  purposes  without  com- 
pensation." Hopkins  v.  Clemson  Agricul- 
tural College,  221  U.  S.  636,  648,  55  L.  Ed. 
890,  31   S.   Ct.  654. 

680-5a.  Remedy  by  injunction — Enjoin- 
ing civil  and  criminal  proceedings. — Phil- 
adelphia Co.  V.  Stimson,  223  U.  S.  605,  56 
L.  Ed.  570,  32  S.  Ct.  340,  citing  In  re  Saw- 
yer, 124  U.  S.  200,  210,  31  L.  Ed.  402,  8  S. 
Ct.  482;  Harkrader  v.  Wadley,  172  U.  S. 
148,  170,  43  L.  Ed.  399,  19  S.  Ct.  119;  Fitts 
V.  McGhee,  172  U.  S.  516,  531,  43  L.  Ed. 
535,  19   S.  Ct.  269. 

680-5b.  Same — Distinction  as  to  pro- 
tection of  property  rights. — Philadelphia 
Co.  V.  Stimson.  223  U.  S.  605,  56  L.  Ed. 
570,  32  S.  Ct.  340,  citing  Davis,  etc.,  Mfg. 
Co.  V.  Los  Angeles,  189  U.  S.  207,  218,  47 
L.  Ed.  782,  23  S.  Ct.  498;  Dobbins  v.  Los 
Angeles,  195  U.  S.  223,  241,  49  L.  Ed.  1G9, 
25  S.  Ct.  18;  Ex  parte  Young,  209  U.  S. 
123,  162,  52  L.  Ed.  714,  28  S.  Ct.  441;  West- 
ern Union  Tel.  Co.  v.  Andrews,  216  U.  S. 
165,  54  L.  Ed.  430,  30  S.  Ct.  286. 


531 


680 


DUB  PROCESS  OF  LAW. 


Vol.  V 


of  a  civil  or  criminal  nature,  to  enforce  against  parties  affected  an  unconstitu- 
tional act,  violating  the  federal  constitution,  may  be  enjoined  by  a  federal  court 
of  equity  from  such  action. ^'^  Where  the  state  official,  instead  of  directly  inter- 
fering with  tangible  property,  is  about  to  commence  suits  which  have  for  their 
object  the  enforcement  of  an  act  which  violates  the  federal  constitution,  to  the 
great  and  irreparable  injury  of  the  complainants,  he  is  seeking  the  same  justifica- 
tion from  the  authority  of  the  state  as  in  other  cases.  The  sovereignty  of  the 
state  is,  in  reality,  no  more  involved  in  one  case  than  in  the  other.  The  state  can 
not,  in  either  case,  impart  to  the  official  immunity  from  responsibility  to  the  su- 
preme authority  of  the  United  States. ^"^ 

Same — Same — State  Officer  Made  Defendant  Must  Have  Some  Con- 
nection with  Enforcement  of  Act. — In  making  an  officer  of  the  state  a  party 
defendant  in  a  suit  to  enjoin  the  enforcement  of  an  act  alleged  to  be  unconstitu- 
tional, it  is  plain  that  such  officer  must  have  some  connection  with  the  enforce- 
ment of  the  act,  or  else  it  is  merely  making  him  a  party  as  a  representative  of  the 
state,  and  thereby  attempting  to  make  the  state  a  party. ^®  The  fact  that  the  state 
officer,  by  virtue  of  his  office,  has  some  connection  with  the  enforcement  of  the 
act,  is  the  important  and  material  fact,  and  whether  it  arises  out  of  the  general 
law,  or  is  specially  created  by  the  act  itself,  is  not  material  so  long  as  it  exists. -^^ 

As  to  Federal  Officers;  Suits  against  the  United  States. — If  the  conduct 
of  the  defendant  constitutes  an  unwarrantable  interference  with  property  of  the 
complainant,  its  resort  to  equity  for  protection  is  not  to  be  defeated  upon  the 
ground  that  the  suit  is  one  against  the  United  States.  The  exemption  of  the 
United  States  from  suit  does  not  protect  its  officers  from  personal  liability  to 
persons  whose  rights  of  property  they  have  wrongfully  invaded.  In  case 
of  an  injury  threatened  by  his  illegal  action,  the  officer  can  not  claim  immunity 
from   injunction  process. ^^ 


680-5C.  Same;  as  to  state  affairs — At- 
torney general,  etc.— Ex  parte  Young,  209 
U.  S.  123,  52  L.,  Ed.  714,  28  S.  Ct.  441; 
Western  Union  Tel.  Co.  v.  Andrews,  216 
U.  S.  165,  54  L.  Ed.  430,  30  S.  Ct.  286; 
Ludwig  V.  Western  Union  Tel.  Co.,  216 
U.  S.  146,  54  L.  Ed.  423,  30  S.  Ct.  280. 

A  federal  court  may  enjoin  the  attorney 
general  of  a  state,  whose  general  duty  is 
to  enforce  the  state  statutes,  from  pro- 
ceeding to  enforce,  against  persons  af- 
fected, a  state  statute  which  violates  the 
federal  constitution,  such  proceedings  be- 
ing not  prohibited  by  the  provision  of  the 
federal  constitution  forbidding  the  main- 
tenance of  actions  against  a  state.  Ex 
parte  Young,  209  U.  S.  123,  52  L.  Ed.  714, 
28  S.  Ct.  441. 

The  general  discretion  of  the  attorney 
general  of  a  state,  regarding  the  enforce- 
ment of  the  laws  when  and  as  he  deems 
appropriate,  is  not  interfered  with  by  an 
injunction  restraining  him  from  taking 
any  steps  towards  the  enforcement  of  an 
unconstitutional  enactment,  to  the  injury 
of  a  complainant.  Ex  parte  Young,  209  U. 
S.  123,  53  L.  Ed.  714,  28  S.  Ct.  441. 

680-5d.  Same — Same. — Ex  parte  Young, 
209  U.  S.  123,  52  L.  Ed.  714,  28  S.  Ct.  441. 

680-5e  Same — Same — State  officer  made 
defendant  must  have  some  connection 
v/ith  enforcement  of  act. — Ex  parte 
Young.  209  U.  S.  123,  52  L.  Ed.  714,  28  S. 
Ct.   441. 


680-5f.  Same — Same,  same. — Ex  parte 
Young,  209  U.  S.  123,  52  L.  Ed.  714,  28  S. 
Ct.  441. 

680-5g.  Same — As  to  federal  officers — 
Suits  against  the  United  States. — Phil- 
adelphia Co.  V.  Stimson,  223  U.  S.  605, 
56  L.  Ed.  570,  32  S.  Ct.  340;  The  Flying 
Fish,  2  Cranch,  170,  2  L.  Ed.  243;  United 
States  V.  Lee,  106  U.  S.  196,  221,  27  L.  Ed. 
171,  1  S.  Ct.  240;  Belknap  v.  Schild,  161  U. 
S.  10.  18.  40  L.  Ed.  599,  16  S.  Ct.  443;  Tin- 
dal  V.  Wesley,  167  U.  S.  204,  42  L.  Ed. 
137,  17  S.  Ct.  770;  Scranton  v.  Wheeler, 
179  U.  S.  141,  152,  45  L.  Ed.  126,  21  S.  Ct. 
48. 

The  exemption  of  the  United  States 
from  suit  does  not  preclude  an  action  to 
prevent  the  secretary  of  war  from  caus- 
ing criminal  proceedings  to  be  instituted 
against  a  riparian  owner  because  of  the 
reclamation  and  occupation  of  his  land 
outside  prescribed  harbor  limits,  if  his 
rights  of  property  were  wrongfully  in- 
vaded in  fixing  such  limits.  Philadelphia 
Co.  V.  Stimson,  223  U.  S.  605,  56  L.  Ed. 
570,  32  S.   Ct.  340. 

One  whose  property  rights  have  been 
invaded  in  fixing  harbor  lines  may  main- 
tain an  action  to  restrain  the  secretary 
of  war  from  causing  threatened  criminal 
proceedings  to  be  instituted  against  him 
in  accordance  with  the  provisions  of  the 
Act  of  Congiess  of  March  3,  1899  (30 
Stat,  at  L.  1121,  1151-1153,  chap.  425,  U. 


532 


^'ol.  V. 


DYING  DECLARATIONS. 


680-685 


Immaterial  Whether  Officer  Proceeds  under  Invalid  Act,  or  Tran- 
scends Authority  of  Valid  Act. — Where  the  officer  is  proceeding  under  an 
unconstitutional  act,  its  invahdity  suffices  to  show  that  he  is  without  authority, 
and  it  is  this  absence  of  lawful  power  and  his  abase  of  auth.ority  in  imposing  or 
enforcing,  in  the  name  of  the  state,  unwarrantable  exactions  or  restrictions,  to 
the  irreparable  loss  of  the  complainant,  which  is  the  basis  of  the  decree.  And  a 
similar  injury  may  be  inflicted,  and  there  may  exist  ground  for  equitable  relief, 
when  an  officer,  insisting  that  he  has  the  warrant  of  the  statute,  is  transcending 
its  bounds,  and  thus  unlawfully  assuming  to  exercise  the  power  of  government 
against  the  individual  owner,  is  guilty  of  an  invasion  of  private  property/''' 


DURESS. 


III.  Effect  of  Duress,  SZZ. 
A.  On  Contracts,  533. 


CROSS  REFERENCES. 

See  the  title  Duress,  vol.  5,  p.  682,  and  references  there  given. 
In  addition,  see  post,  Taxation;  Undue  Influence. 


A.  On  Contracts. 


III.  Effect  of  Duress. 

-See  note  8. 


DUTIES. — The  terms  duties,  imposts,  and  excises  are  generally  treated  as 
embracing  the  indirect  forms  of  taxation  contemplated  by  the  constitution.'' 

DUTIES  AND  IMPOSTS.— See  post,  Revenue  Laws. 

DYING  DECLARATIONS.— See  the  title  Dying  Declarations,  vol.  5,  p. 
686,  and  references  there  given. 


S.  Comp.  Stat.  1901,  pp.  3541,  3542,  3544), 
§§  11,  12,  17,  for  undertaking  the  rec- 
lamation and  occupation  of  land  belong- 
ing to  him  beyond  the  prescribed  harbor 
limits.  Philadelphia  Co.  v.  Stimson,  223 
U.  S.  605,  56  L.  Ed.  570,  32  S.  Ct.  340.  See, 
also,  ante,  "Property  Rights  of  Riparian 
Owners  as  Subservient  to  Right  of  Gov- 
ernment to  Improve  Navigability  of 
Stream,"  VI,  D,  2,  b,  (4),  (q),   (cc). 

680-5h.  Same — Immaterial  whether  of- 
ficer proceeds  under  invalid  act,  or 
transcends  authority  of  valid  act. — Ex 
parte  Young,  209  U.  S.  123,  159,  52  L.  Ed. 
714,  28  S.  Ct.  441;  Philadelphia  Co.  v. 
Stimson,  223  U.  S-  605,  56  L.  Ed.  570,  32 
S.   Ct.  340. 

683-8.  Effect  of  duress  on  contract. — 
Refusal  by  a  purchaser  in  possession  of 
personal  property  to  pay  for  it  to  satisfy 
a  mortgage  lien  on  it,  or  release  it,  un- 
less the  seller  will  execute  a  contract 
which,  if  persisted  in,  both  parties  under- 
stand will  lead  to  an  immediate  fore- 
closure and  the  ruin  of  the  seller,  amounts 
to  duress  which  will  avoid  the  contract, 
ludgment,  Snyder  v.  Stribling  (1907),  89 
P.  222,  18  Okl.  168,  affirmed.  Snyder  v. 
Rosenbaum,  215  U.  S.  261,  54  L.  Ed.  186, 
30  S.  Ct.  73. 


685-a.      Duties,    imposts    and    excise. — 

Flint  v.  Stone  Tracy  Co.,  220  U.  S.  107, 
55  L.  Ed.  389,  31  S.  Ct.  342.  See  post, 
REVENUE   LAWS. 

The  words  duties,  imposts  and  excises, 
"were  used  comprehensively,  to  cover 
customs  and  excise  duties  imposed  on  im- 
portation, consumption,  manufacture,  and 
sale  of  certain  coininodities,  privileges, 
particular  business  transactions,  voca- 
tions, occupations,  and  the  like."  Flint 
V.  Stone  Tracy  Co.,  220  U.  S.  107,  55  L. 
Ed.  389,  31  S.  Ct.  342,  quoting  Chief  Jus- 
tice Fuller  in  Thomas  v.  United  States, 
192  U.  S.  363,  48  L.   Ed.  481,  24  S.  Ct.  305. 

Duties  and  imposts  are  terms  com- 
monly applied  to  levies  made  by  gov- 
ernments on  the  importation  or  expor- 
tation of  commodities.  Flint  v.  Stone 
Tracy  Co.,  220  U.  S.  107,  55  L.  Ed.  389, 
31   S.   Ct.   342. 

"Although  there  have  been  from  time 
to  time  intimations  that  there  might  be 
some  tax  which  was  not  a  direct  tax  nor 
included  under  the  words  'duties,  imposts, 
and  excises,'  such  a  tax  ior  more  than  one 
hundred  years  of  national  existence  has 
as  yet  remained  undiscovered."  Flint  v. 
Stone  Tracy  Co.,  220  U.  S.  107,  55  L.  Ed. 
389,   31    S.    Ct.   342. 


533 


693-694 


EITHER. 


Vol.  V. 


EASEMENTS. 

VI.  Condemnation  of  Easements,  534. 

CROSS  REFERENCES. 

See  the  title  Easements,  vol.  5,  p.  690,  and  references  there  given. 
In  addition,  see  post,  Prlvate  Ways. 

VI.  Condemnation  of  Easements. 

An  easement  of  access  to  a  public  county  road  is  private  property  and  the 
owner  thereof  is  entitled  to  compensation  upon  its  taking  by  the  government  for 
public  purpose.--'^  The  value  of  an  easement  is  to  be  ascertained  with  reference 
to  the  dominant  estate  to  which  it  is  attached. --'' 

EBB  AND  FLOW.— See  post,  Navigabi^i;  Waters. 
EDITION.— See  note  la. 
EIGHT-HOUR  LAW.— See  post.  Labor. 
EITHER.— See  note  a. 


693-22a.    Condemnation    of    easement. — 

United  States  v.  Grizzard,  219  U.  S.  180, 
55  L.  Ed.  165,  31  S.  Ct.  162.  See,  also, 
post,    EMINENT   DOMAIN. 

Condemnation  of  easements. — The 
same  reasoning  that  allows  a  recovery  for 
the  taking  of  land,  allows  it  for  an  ease- 
ment taken  in  the  same  manner.  United 
States  V.  Welch,  217  U.  S.  333,  54  E.  Ed. 
787,  30   S.   Ct.  527. 

693-22b.  Ascertainment  of  value.— 
United  States  v.  Welch,  217  U.  S.  333,  54 
L.   Ed.  787,  30  S.  Ct.   527. 

Compensation  to  be  awarded  for  the 
taking  of  an  easement  of  right  of  way  to 
a  public  road  includes  the  damage  done 
to  the  property  of  the  owner  of  the  ease- 
ment to  which  it  was  incident.  United 
States  V.  Grizzard,  219  U.  S.  180,  55  L. 
Ed.  165,  31   S.   Ct.   162. 

693-la.  Editions  of  paintings  within 
meaning  of  copyright  laws. — See  Ameri- 
can Tobacco  Co.  v.  Werckmeister,  207  U. 
S.  284,  52  L.  Ed.  208,  28  S.  Ct.  72.  See. 
also,  ante,  COPYRIGHT,  p.  377. 

694-a.  Either  as  meaning  any. — The 
third  section  of  the  Act  of  March  2, -1901, 
c.    812,    31    Stat.    953,   provides    that    "The 


jurisdiction  of  the  district  court  of  the 
United  States  for  Porto  Rico  in  civil 
cases  shall,  in  addition  to  that  conferred 
by  the  Act  of  April  twelfth,  nineteen 
hundred,  extend  to  and  embrace  contro- 
versies where  the  parties,  or  either  of 
them,  are  citizens  of  the  United  States, 
or  citizens  or  subjects  of  a  foreign  State 
or  States."  It  was  contended  that  the 
word  "parties"  was  not  used  collectively, 
meaning  all  of  the  litigants  on  the  one 
side  or  the  other,  but  was  intended  as  if 
the  word  "litigants"  had  been  used,  and 
that  the  words  "or  either  of  them"  meant 
"any  of  them,"  and  that  the  jurisdiction 
conferred  embraced  all  controversies  in 
which  any  litigant  on  either  side  is  a  citi- 
zen of  the  United  States  or  a  subject  of 
a  foreign  country.  The  construction  con- 
tended for  was  out  of  harmony  with  a 
long  line  of  decisions  construing  the  ju- 
risdictional clauses  in  the  various  statutes 
dealing  with  the  question  of  jurisdiction 
dependent  upon  diversity  of  citizenship. 
Cuebas  v.  Cuebas,  223  U.  S.  376,  386,  56 
L.  Ed.  476,  32  S.  Ct.  277.  See  ante, 
COURTS,    p.    398. 


534 


Vol.  V.  ELECTIONS.  704-720 


EJECTMENT. 

III.  Title  to  Support  the  Action,  535. 

D.  Evidences  of  Title,  535. 

11.  Mexican  Land  Grant,  535. 

VIII.  Evidence,  535. 

B.  Admissibility,  535. 

3.  Evidence  to  Show  Title  in  Defendant,  535. 

CROSS  REFERENCES. 

See  the  title  Ejectment,  vol.  5,  p.  695,  and  references  there  given. 

III.  Title  to  Support  the  Action. 

D.  Evidences  of  Title — 11.  Me^xican  Land  Grant. — A  Mexican  land  grant 

will  not  support  an  action  in  ejectment  where  the  evidence  offered  to  identify  the 

boundaries  of  such  grant  is  insufficient  to  show  that  they  included  the  land  in 
dispute.-^  2a 

VIII.  Evidence. 

B.  Admissibility — 3.  Evidence  to  Show  Title  in  Defendant. — See  note  81. 

EJUSDEM  GENERIS.— See  post,  Statutes. 


ELECTION  OF  REMEDIES. 

CROSS  REFERENCES. 
See  the  title  Election  of  Remedies,  vol.  5,  p.  719,  and  references  there  given. 

Inconsistency  of  Alternative  Remedies. — The  trustee  in  bankruptcy  does 
not,  by  obtaining  a  judgment  against  the  bankrupt  for  the  proceeds  of  a  transfer 
in  fraud  of  creditors,  make  an  election  which  prevents  him  from  suing  in  equity 
to  set  aside  such  transfer.^^ 

ELECTIONS.— See  the  title  Elections,  vol.  5,  p.  721,  and  references  there 
given.  As  to  oft'enses  against  the  civil  service  laws  by  government  employees' 
soliciting  campaign  contributions,  see  post.  Public  Officers. 

704-32a.     Mexican  land   grant. — Sena   v.  mate  tendency  to  identify  the  precise  lo- 

American   Turquoise    Co.,   230    U.    S.    497,  cation   of  the   tract  occupied  by   him,   al- 

55  L.  Ed.  559,  31  S.  Ct.  488.  though   such   evidence   may   tend  to   show 

715-81.     Precise    location    of    land    de-  a  mistake  in  the  field  notes  of  the  survey 

rived   from    the    United    States. — The    de-  of  the  tract  claimed  by  the  plaintiff.  Gra- 

fendant   in   ejectment   for   a   tract   of   land  ham  v.  Gill,  223  U.  S.  643,  56  L.   Ed.  586, 

derived    from    the    United     States    under  32  S.  Ct.  396. 

different  surveys  is  not  debarred  by  U.  S.  720-5a.      Inconsistency      of     alternative 

Rev.  Stat.,  §  2396,  U.  S.  Comp.  Stat.  1901,  remedies.— Thomas   v.    Sugarman,    218   U. 

p.   1473,   from   introducing   evidence   other  S.  129,  54  L.  Ed.  967,  30  S.  Ct.  650. 
than   the    field   notes,   which    has    a   legiti- 

535 


730-742  EMIGRATION.  Vol.  V. 


ELECTRICITY. 

CROSS  REFERENCES. 

See  cross  references  under  Electricity,  vol.  5,  p.  730. 
In  addition,  see  post,  Negligence. 

Degree  of  Care  Required. — A  company  supplying  electricity  for  lighting 
purposes,  and  engaging  with  individuals  to  deliver  a  suitable  current  at  their  resi- 
dences and  places  of  business,  over  its  own  system  of  wires  and  appliances,  is 
bound  to  exercise  such  control  over  the  subtle  and  perilous  agency  with  which 
it  is  dealing,  and  to  take  such  precautions  in  the  maintenance  and  inspection  of 
its  wires  and  appliances,  as  are  reasonably  essential  to  prevent  an  excessive  and 
dangerous  current  from  passing  from  its  supply  wires  to  the  service  wires  of  its 
patrons."-* 

• 

ELEMENTS.— See  post,  Pati-nts. 

EMBARGO  AND  NONINTERCOURSE    LAWS.— See    the    title    Embargo 

AND  NONINTERCOURSE  LaWS,  VOl.   5.  p.  732. 

EMBEZZLEMENT. 
IL  Who  May  Commit  the  Offense,  536. 
C.  Clerk  of  Federal  Court,  536. 

CROSS  REFERENCES. 

See  the  title  Embezzlement,  vol.  5,  p.  742,  and  references  there  given. 

In  addition,  as  to  misapplication  of  national  bank  funds,  see  ante,  Banks  and 
Banking,  p.  184.  As  to  dismissal  of  prosecution  for  embezzlement  as  bar  to 
recovery  of  sum  converted,  see  ante.  Dismissal,  Discontinuance  and  Non- 
suit, p.  466. 

n.  Who  May  Commit  the  Offense. 

C.  Clerk  of  Federal  Court. — A  clerk  of  a  federal  district  court  can  not  be 
charged  w^ith  embezzling  the  surplus  fees  and  emoluments  of  his  office  until  he 
refuses  or  fails  to  make  his  half-yearly  return,  or  to  pay  over  the  surplus  shown 
to  exist  by  such  return  or  the  audit  thereof,  even  if  such  surplus  fees  and  emolu- 
ments can  in  any  event  be  the  subject  of  embezzlement.'*'^ 

EMERGENCY.— See  post,  Negligence. 

EMIGRATION.— See  ante.  Aliens,  p.  18;  Citizenship,  p.  235;  post,  Nat- 
uralization. 

730-74.    Degree    of    care    required. — S_an  statutes  relating  to   the  embezzlement  of 

Juan  Light,  etc.,  Co.  v.  Requena,  224  U.'S.  "public    money"    or    "money    or    property 

89,  99,  56  L.  Ed.  680,  32  S.  Ct.  399.  of   the   United   States,"   but   such   fees   and 

742-4a.    Clerk  of  federal  court. — United  emohiments    are    received    by    the    clerk, 

States  V.  Mason,  218  U.   S.   517,  51  L.   Ed.  not   as   moneys   of  property   belonging   to 

1133,  31  S.  Ct.  28.  See  ante,  CLERKS  OF  the  United  States,  but  as  the  amount  al- 

COURT,  p.  241.  lowed    to    him    for   his    compensation    and 

The  duty  of  a  clerk  of  a  federal  dis-  office  expenses  under  the  statutes  defin- 
trict  court  to  pay  over  to  the  United  ing  his  rights  and  duties,  and,  with  re- 
States  the  surplus  fees  and  emolun>ents  spect  to  the  amount  payable  when  the 
of  his  office  which  his  half-yearly  return  return  is  made,  the  clerk  is  not  a  trustee, 
or  the  audit  thereof  shows  to  exist  over  but  a  debtor.  United  States  v.  Mason,  218 
and  above  the  compensation  and  allow-  U.  S.  517,  54  L.  Ed.  1133,  31  S.  Ct.  28, 
ances  authorized  by  law  to  be  retained  affirming  judgment  (C.  C.)  177  F.  552. 
by    him    is    not    governed    by    the    federal 

536 


Vol.  V.  BMIXEXT  DOMAIN. 


EMINENT  DOMAIN. 
I.  Definitions,  538. 

II.  Origin  and  Nature  of  Power,  538. 

V.  Who  May  Exercise  Power,  538. 

A.  Any  Independent  Government,  538. 
C.  State,  538. 
Cy2.  Territory,  538. 

VI.   What  Property  May  Be  Taken,  539. 
A.  Private  Property,  539. 

1.  Property  Rights  in  General,  539. 

2.  Lands,  539. 
2y2.  Charter.  539. 

4.  Contract,  539. 

5.  Patents,  539. 

6.  Chose  in  Action,  539. 

7.  Easement,  539. 

VII.  Determination  as  to  Necessity  and  Amount  of  Appropriation,  540. 

VIII.  For  What  Purposes  Property  May  Be  Taken,  540. 

A.  Private  Purposes,  540. 

B.  Public  Purposes,  540. 

1.  Determination  of  Character  of  Use,  540. 

b.  Power  of  Courts,  540. 

2.  \\'hat  Constitutes  a  Public  Purpose,  541. 

a.  In  General,  541. 

b.  Railroads,  541. 

(1)   In  General,  541. 

(4)    Spur  Tracks  and  Terminal  Facilities,  541. 

c.  Streets  and  Highways,  541. 
h.  Irrigation,  541. 

k.  Alills  and  Alilldams,  542. 
t.  Navigation,  542. 
u.  Stock  Raising.  542. 

IX.  What  Constitutes  a  Taking,  542. 

A.  In   General,   542. 

JYz.  Use  of  Patent  without  License,  542. 

K.  Damaging  without  Occupation  or  Appropriation,  542. 

6.  Requiring  Changes  in  Bridge,  542. 

9.  Destruction  of  Easement,  542. 

X.  Compensation,  543. 

B.  Necessity  of  Compensation,  543. 

C.  Necessity  of  Statutory  Provisions   for  Compensation.  543. 

D.  Persons  Entitled  to  Compensation,  543. 

F>^.  Making  of  Survey  as  a  Condition  Precedent  to  Payment  of  Compen- 
sation, 544. 
G.  Measure  and  Elements  of  Compensation,  544. 

23/2.  Dependent  upon  Extent  of  Interest  Acquired,  544. 

537 


750-754  EMINENT  DOMAIN.  Vol.  V. 

4.  Where  Part  of  Tract  Is  Taken,  544. 
Q>y2.  Effect  of  Payment  of  Compensation,  545. 

XII.  Condemnation  Proceedings,  545. 

J.  Conduct  and  Mode  of  Trial,  545. 
2.  Mode  of  Trial,  545. 
b.  Jury  Trial,  545. 

(1/^)   Qualifications  of  Jurors,  545. 
(1^)   Oath,  545. 

(3)  Instructions,  546. 

(4)  Verdict,  546. 

(5)  Reassessment  of  Benefits.  546. 
P.  Review  of  Proceedings,  547. 

CROSS  REFERENCES. 

See  the  title  Eminent  Domain,  vol.  5,  p.  /^46,  and  references  there  given. 

In  addition,  see  ante.  Constitutional,  Law,  p.  264 ;  Due  Process  of  Law,  p. 
475;  post.  Gas;  Interstate  and  Foreign  Commerce;  Police  Power. 

As  to  what  constitutes  a  taking  of  property  without  due  process  of  law,  see 
ante.  Due  Process  oe  Law,  p.  475. 

I.  Definitions. 

"Vattel  defines  eminent  domain  to  be  the  right  to  dispose,  in  case  of  necessity 
and  for  the  public  safety,  of  all  the  wealth  of  the  country."^^ 

II.  Origin  and  Nature  of  Power. 

See  note  3. 

V.  Who  May  Exercise  Power. 

A.  Any  Independent  Government. — Essential  to  Existence  of  Inde- 
pendent State. — The  right  of  appropriating  private  property  to  a  public  use 
is  a  power  which  is  absolutely  essential  to  the  existence  of  an  independent  state.^-*^ 

0.  State.— See  note  19. 

0-2 .  Territory. — When  the  United  States  as  an  independent  sovereign  cre- 
ates a  territorial  government  with  legislative  authority,  subject  only  to  the  limi- 
tation of  the  creating  act,  it  grants  to  this  new  dependent  government  the  power 
of  eminent  domain  unless  it  clearly  appears  that  it  was  withheld. ^^^  When  the 
congress  of  the  federal  government  passed  the  ordinance  of  1787  for  the  gov- 
ernment of  the  territory  northwest  of  the  Ohio  River,  it  by  implication  gave  to 
the  government  of  the  territory  the  power  of  eminent  domain  and  the  require- 

750-2a.     Defined. — Cincinnati    v.    Louis-  the  compliance  with  the  provisions  of  the 

ville,  etc.,  R.  Co.,  223  U.  S.  390,  56  L.  Ed.  statute,   any  railroad   company  owning  or 

481,  32  S.  Ct.  267.  operating    a    railroad    wholly    or   partially 

750-3.  Origin  and  nature. — "This  right  within  the  state,  might  use  and  occupy 
of  appropriating  private  property  to  a  for  an  elevated  track,  any  portion  of  any 
public  use  is  one  of  the  powers  vital  to  public  ground  lying  within  the  limits 
the  public  welfare  of  every  self-governing  of  municipality  and  dedicated  to  the 
community.  It  is  a  power  which  this  public  for  use  as  a  public  ground,  corn- 
court  has  described  as  an  'incident  to  mon,  landing,  wharf  or  for  any  other 
sovereignty,'  a  power  which  'belongs  to  purpose  except  streets,  houses  and  public 
every  independent  government.' "  Cincin-  roads,  is  not  repugnant  to  art.  1,  §  10, 
nati  V.  Louisville,  etc.,  R.  Co.,  223  U.  S.  Const.,  of  the  United  States,  forbidding  any 
390,  404,  56  L.  Ed.  481,  32  S.  Ct.  267.  state  to  pass  any  law  impairing  the  obli- 

752-12a.      Independent      state. — Cincin-  gation  of  the  contract.  Cincinnati  v.  Louis- 

nati   V.   Louisville,   etc.,   R.   Co.,   223   U.   S.  ville,  etc.,  R.  Co.,  223  U.  S.  390,  56  L  Ed- 

390,   56   L.   Ed.   481,  32   S.   Ct.  267.  481,  32  S.  Ct.  267. 

754-19.  Does  not  impair  contracts. —  754-19a.  Territory. — Cincinnati  v.  Louis- 
Section  3283-a,  Rev.  Stat,  of  Ohio  which  ville,  etc.,  R.  Co.,  223  U.  S.  390,  56  L.  Ed. 
provides    among   other    things    that    upon  481,  32  S.  Ct.  267. 

538 


Vol.  V. 


EMINENT  DOMAIN. 


754-759 


ment  contained  in  the  ordinance  that  compensation  be  made  where  private  prop- 
erty was  taken  for  pubHc  use  was  not  intended  to  abrogate  or  restrict  this 
power. ^^"^  And  such  ordinance  does  not  affect  or  abridge  the  power  of  the  states 
subsequently  admitted  in  that  territory  to  exercise  this  right.^^"^ 

VI.  What  Property  May  Be  Taken. 

A.  Private  Property — 1.  Property  Rights  in  General. — Tangible  and  in- 
tangible property  are  both  subject  to  the  power  of  eminent  domain. ^^"^ 

2.   Lands. — See  note  34. 

2  Yi.  Charter. — A  charter  is  subject  to  the  power  of  eminent  domain,  the 
same  as  any  other  property.'^  ^'^ 

4.  Contract. — See  note  43. 

5.  Patents. — A  patent  in  common  with  other  private  property  is  subject  to 
the  right  of  eminent  domain.'*-^'' 

6.  Chose  in  Action. — A  chose  in  action  being  property  of  an  intangible  na- 
ture may  be  acquired  by  the  state  under  the  power  of  eminent  domain.-*-^'' 

7.  Easement. — An  easement  is  property  and  therefore  subject  to  the  power 
of  eminent  doinain.'*^'^ 


754-19b.  Territory — Northwestern  terri- 
tory.— Cincinnati  v.  Louisville,  etc.,  R. 
Co.,  223  U.  S.  390,  56  L.  Ed.  481,  32  S.  Ct. 
267. 

Article  2  of  the  Ordinance  of  1787  for 
the  government  of  the  northwest  terri- 
tory which  provided  "That  no  man  shall 
be  deprived  of  his  liberty  or  property, 
but  by  the  judgment  of  his  peers,  or  the 
law  of  the  land,  and  should  public  exi- 
gencies make  it  necessary  for  the  com- 
mon preservation  to  take  any  person's 
property,  or  to  demand  his  particular 
services,  a  full  compensation  shall  be 
made  for  the  same,"  is  not  a  grant  of 
power  but  a  limitation  upon  the  power  of 
eminent  domain  which  is  assumed  to  ex- 
ist. Cincinnati  z'.  Louisville,  etc.,  R.  Co., 
223  U.  S.  390,  56  L.  Ed.  481,  32  S.  Ct. 
267. 

754-19C.  Effect  of  subsequently  created 
states. — Cincinnati  v.  Louisville,  etc.,  R. 
Co.,  223  U.  S.  390,  56  L.  Ed.  481,  32  S.  Ct. 
267. 

The  legislative  power  of  the  state  of 
Ohio  was  not  restricted  in  any  way  by  the 
provisions  of  the  2nd  article  of  Ordi- 
nances of  1787,  after  its  admission  to  the 
Union,  and  it  has  every  power  of  eminent 
domain  which  'pertains  to  other  states. 
From  thus  limited  by  its  own  constitution, 
a  state  should  never  be  presumed  to  sur- 
render the  power  of  eminent  domain  be- 
cause like  the  taxing  power,  the  whole 
community  have  an  interest  in  preserving 
it  undiminished.  Cincinnati  v.  Louisville, 
etc.,  R.  Co..  223  U.  S.  390,  56  L.  Ed.  481, 
32  S.  Ct.  267. 

"But  the  assumption  that  the  power  of 
eminent  domain  possessed  by  the  North- 
west Territory  in  1787  was  limited  as 
claimed  is  untenable.  The  clause  referred 
to  assumes  the  existence  of  a  general 
power  of  eminent  domain  in  the  Govern- 
ment,   and    provides    that    when    exerted 


there  must  be  full  compensation  for  the 
property  taken  or  the  services  required. 
That  this  is  so  is  apparent  not  only  from 
the  language  of  the  clause,  but  from  a 
general  consideration  of  the  purpose  and 
object  of  the  congressional  act  in  which 
the  article  appears.  The  ordinance  of  1787 
was  a  law  providing  for  the  government 
of  the  territory  of  the  United  States 
northwest  of  the  River  Ohio.  It  provided 
for  the  appointment  of  a  governor  and 
secretary  and  for  the  appointment  'of 
judges  and  the  organization  of  courts 
with  common-law  jurisdiction.  To  the 
governor  and  judges  was  granted  legisla- 
tive power  to  adopt  and  publish  such 
laws  of  the  original  States  as  should  seem 
to  be  adapted  to  the  conditions,  which 
were  to  be  and  remain  in  force  unless  dis- 
approved by  congress.  Authority  to  elect 
a  legislature  was  conferred  when  there 
should  be  five  thousand  inhabitants." 
Cincinnati  v.  Louisville,  etc.,  R.  Co.,  223 
U.  S.  390,  403,  56  L.  Ed.  481,  32  S.  Ct. 
267. 

757-33a.  Tangible  and  intangible  prop- 
erty.— Cincinnati  v.  Louisville,  etc.,  R. 
Co.,  223  U.  S.  390,  56  L.  Ed.  481,  32  S.  Ct. 
267. 

757-34.  Lands  of  private  owners. — Cin- 
cinnati V.  Louisville,  etc.,  R.  Co.,  223  U. 
S.   390,   56   L.    Ed.   481,   32   S-   Ct.   267. 

757-35a.  Charter. — Cincinnati  v.  Louis- 
ville, etc.,  R.  Co.,  223  U.  S.  390.  56  L.  Ed. 
481,  32  S.  Ct.  367. 

759-43.  Contract. — Cincinnati  v.  Louis- 
ville, etc.,  R.  Co.,  223  U.  S.  390,  56  L.  Ed. 
481,  32   S.   Ct.  267. 

759-43a.  Patent. — Crozier  v.  Krupp,  224 
U.   S.  290,  56  L.  Ed.  771,  32  S.   Ct.  488. 

759-43b.  Chose  in  action. — Cincinnati 
V.  Louisville,  etc.,  R.  Co..  223  U.  S.  390, 
56    L.    Ed.    481,   32    S.    Ct.    267. 

759-43C.  Easement.— United  States  v. 
Welch,  317  U.  S.  333,  54  L.   Ed.  787,  30  S. 


539 


762-764 


EMINENT  DOMAIN. 


Vol.  V. 


VII.  Determination  as  to  Necessity  and  Amount  of  Appropriation. 

See  note  61. 

VIII.  For  What  Purposes  Property  May  Be  Taken. 

A.  Private  Purposes. — See  note  62.  An  appropriation  can  not  be  com- 
pelled by  the  court  in  condemnation  proceedings  to  take  more  land  than  is  nec- 
essary for  public  use."-'' 

B.  Public  Purposes — 1.  Determination  of  Character  of  Use — b.  Pozver 
of  Courts. — The  one  and  only  principle  in  which  all  courts  seem  to  agree  is  that 
the  nature  of  the  uses,  whether  public  or  private,  is  ultimately  a  judicial  ques- 
tion.*^-"'  And  in  determining  this  question  the  courts  will  be  governed  by  the 
public  necessities  of  the  different  localities  in 'which  the  question  arises,*^^''  and 
where  the  statutes  of  a  state  permit  no  appropriation  except  for  public  use  and  a 
court  of  that  state  has  rendered  a  general  judgment  of  condemnation,  it  will  on 
appeal  to  the  federal  courts  be  assumed  that  the  property  was  appropriated  for 
a  public  use.*^^''    And  no  case  is  recalled  where  the  supreme  court  of  the  United 


Ct.  537;  United  States  v.  Grizzard,  219  U. 
S.  180,  55  L.  Ed.  165,  31  S.  Ct.  162.  See 
ante,  EASEMENTS,  p.  534. 

"A  private  right  of  way  is  an  easement 
and  is  land.  We  perceive  no  reason  why  it 
should  not  be  held  to  be  acquired  by  the 
United  States  as  incident  to  the  fee  for 
which  it  admits  that  it  must  pay."  United 
States  V.  Welch,  317  U.  S.  333,  54  L.  Ed. 
787,  30  S.   Ct.   527. 

762-61.  A  public  "exigency"  exists,  for 
the  "common  preservation,"  when  the 
legislature  declares  that  for  a  bona  fide 
public  purpose  there  should  be  a  right  of 
way  for  a  common  carrier  across  a  par- 
ticular piece  of  property.  The  uses  to 
which  §  3283,  Rev.  Stat,  of  Ohio,  author- 
izes a  condemnation  of  a  right  of  way 
are  undeniable  public  and  not  private 
uses.  When  that  is  the  case,  "the  pro- 
priety or  expedience  of  the  appropria- 
tion can  not  be  called  in  question  by  any 
other  authority."  United  States  v.  Jones, 
109  U.  S.  513,  519,  27  L.  Ed.  1015,  3  S.  Ct. 
346;  Cincinnati  z'.  Louisville,  etc.,  R.  Co., 
233  U.  S.  390,  406,  56  L.  Ed.  481,  33  S. 
Ct.  367. 

762-62.  Private  purposes. — "The  courts 
of  the  states,  whenever  the  question  has 
been  presented  to  them  for  decision,  have, 
without  exception,  held  that  it  is  beyond 
the  legislative  power  to  take,  against  his 
will,  the  property  of  one  and  give  it  to 
another  for  what  the  court  deems  private 
uses,  even  though  full  compensation  for 
the  taking  be  required."  Hairston  v.  Dan- 
ville, etc.,  R.  Co.,  308  U.  S.  598,  606,  53  L. 
Ed.   637,  28   S.   Ct.  331. 

"The  plaintiflf  in  error,  however,  in- 
sists that  the  record  in  this  case,  which 
includes  all  the  evidence,  shows,  unmis- 
takably, that  the  taking  was  for  private 
uses  and  that  the  claim  by  the  railway 
company,  that  the  spur  track  was  de- 
signed in  part  for  public  uses,  is  no  better 
than  a  colorable  pretense.  We  assume 
that,  if  the  condemnation  was  for 
private     uses,     it     is     forbidden     by     the 


fourteenth  amendment.  Missouri  Pac. 
R.  Co.  v.  Nebraska,  164  U.  S.  403,  41  L. 
Ed.  489;  Fallbrook  Irrig.  Dist.  v.  Bradley, 
164  U.  S.  112,  161,  41  L.  Ed.  369;  Madison- 
ville  Tract.  Co.  v.  Saint  Bernard  Min. 
Co.,  196  U.  S.  239,  251,  49  L.  Ed.  463; 
Clark  V.  Nash,  198  U.  S.  361,  49  L.  Ed. 
1085;  Strickley  v.  Highland,  etc.,  Min. 
Co.,  300  U.  S.  527,  50  L.  Ed.  581."  Hairs- 
ton  v.  Danville,  etc.,  R.  Co.,  308  U.  S.  598, 
607,    53    L.    Ed.    637,    38    S.    Ct.    331. 

762-62a.  Only  land  necessary. — Win- 
slow  7'.  Baltimore,  etc.,  R.  Co.,  208  U.  S. 
59,   53   L.    Ed.   388,  28   S.   Ct.   190. 

A  railroad  company  will  not  be  re- 
quired by  the  court  in  condemnation  pro- 
ceedings to  take  property  for  which  it 
finds  no  public  use,  and  where  it  is  plain 
that  the  property  is  not  needed.  (1906) 
Winslow  v.  Baltimore  &  O.  R.  Co.,  28 
App.  D.  C.  136,  judgment  affirmed.  Win- 
slow  V.  Baltimore,  etc.,  R.  Co.,  308  U.  S. 
59,  53  L.   Ed.  388,  38  S.  Ct.   190. 

764-64a.  Power  of  courts. — Hairston  v. 
Danville,   etc.,    R.    Co.,   208   U.    S.   598,   606, 

52  L.  Ed.  637,  28   S.   Ct.  331. 

764-64b.  By  what  governed. — Hairston 
V.  Danville,  etc.,  R.  Co.,  308  U.  S.  598,  53 
L.  Ed.  637,  38  S.  Ct.  331. 

The  determination  of  what  is  a  public 
use  by  the  courts  has  been  influenced  in 
the  diflferent  states  by  considerations 
touching  the  resources,  the  capacity  of 
the  soil,  the  relative  importance  of  in- 
dustries to  the  general  public  welfare,  and 
the  long-established  methods  and  habits 
of  the  people.  In  all  these  respects  con- 
ditions vary  so  much  in  the  states  and 
territories  of  the  union  that  different  re- 
sults might  well  be  expected.  Hairston  v. 
Danville,   etc.,   R.   Co.,   308   U.   S.   598,   606, 

53  L.    Ed.   637,  38    S.    Ct.   331. 

764-64C.  Hairston  v.  Danville,  etc.,  R. 
Co.,  308  U.  S.  598,  606,  52  L.  Ed.  637,  38  S. 
Ct.   331. 

"We  must  not  be  understood  as  saying 
that  cases  may  not  arise  where  this  court 
would   decline   to   follow   the   state   courts 


540 


Vol.  V 


EMINENT  DOMAIN. 


764-766 


States  had  condemned,  as  a  violation  of  the  fourteenth  amendment,  a  taking  up- 
held by  the  state  court  as  a  taking  for  public  uses  in  conformity  with  its  laws.*^^** 
2.  What  Constitutes  a  Public  Purpose — a.  In  General. — "When  we  come 
to  inquire  what  are  public  uses  for  which  the  right  of  compulsory  taking  may 
be  employed,  and  what  are  private  uses  for  which  the  right  is  forbidden,  we  find 
no  agreement,  either  in  reasoning  or  conclusion. "'^^'' 

b.  Railroads — (1)   In  General. — See  note  67. 

(4)  Spur  Tracks  and  Terminal  Facilities. — Railroads  may  acquire  land  for 
the  construction  of  spur  tracks  and  terminal  facilities,  as  they  are  necessary  to 
the  successful  operation  of  the  road  and  are  uses  of  a  public  nature.*^^^ 

c.  Streets  and  Highzmys.—Ste  note  71. 
h.    Irrigation.- — See  note  78. 


in  their  determination  of  the  uses  for 
which  land  could  be  taken  by  the  right 
of  eminent  domain.  The  cases  cited,  how- 
ever, show  how  greatly  we  have  deferred 
to  the  opinions  of  the  state  courts  on 
this  subject,  which  so  closely  concerns 
the  welfare  of  their  people.  We  have 
found  nothing  in  the  federal  constitution 
which  prevents  the  condemnation  by  one 
person  for  his  individual  use  of  a  right 
of  way  over  the  land  of  another  for  the 
construction  of  an  irrigation  ditch;  of  a 
right  of  way  over  the  land  of  another  for 
an  aerial  bucket  line;  or  of  the  right  to 
flow  the  land  of  another  by  the  erection 
of  a  dam.  It  remains  for  the  future  to 
disclose  what  cases,  if  any,  of  taking  for 
uses,  which  the  state  constitution,  law, 
and  court  approve  will  be  held  to  be  for- 
bidden by  the  fourteenth  amendment  to 
the  constitution  of  the  United  States." 
Hairston  v.  Danville,  etc.,  R.  Co.,  208  U. 
S.   598,   607,   52   L.   Ed.   637,  28  S.   Ct.   331. 

"The  condemnation  of  land  in  this  case 
has  been  held  by  the  courts  of  Virginia 
to  be  authorized  by  the  constitution  and 
laws  of  that  state,  and  we  have  no  right 
to  review  that  aspect  of  the  decision.  The 
law  of  Virginia  permits  no  exercise  of 
the  right  of  eminent  domain  except  for 
public  uses.  Fallsburg  Power  Co.  :'. 
Alexander,  101  Virginia,  98;  Dice  z'. 
Sherman,  59  S.  E.  Rep.  388.  Therefore, 
it  must  be  assumed  that  this  taking  was 
held  to  be  for  public  uses,  although  there 
was  no  specific  finding  of  the  fact,  but 
only  a  general  judgment  of  condemna- 
tion." Hairston  v.  Danville,  etc.,  R.  Co., 
208  U.  S.  598,  605,  52  L.  Ed.  637,  28  S.  Ct. 
331. 

764-64d.  Hairston  v.  Danville,  etc.,  R. 
Co.,  208  U.  S.  598,  607,  52  L.  Ed.  637,  28  S. 
Ct.  .331. 

764-65a.  What  are  public  uses. — Hair- 
ston V.  Danville,  etc.,  R.  Co.,  208  U.  S. 
598,   606,   52    L.    Ed.   637,   28   S.    Ct.    331. 

764-67.  Railroads. — Winslow  v.  Balti- 
more, etc.,  R.  Co.,  208  U.  S.  59,  52  L.  Ed. 
388,  28  S.  Ct.   190. 

765-69a.  Spur  tracks,  etc. — Hairston  v. 
Danville,  etc.,  R.  Co..  208  U.  S.  598,  52  L. 
Ed.  637,  28  S.  Ct.  331. 


The  condemnation  of  land  by  a  railroad 
company  for  a  spur  track  will  not  be  held 
to  be  for  a  private  use,  and  therefore  for- 
Indden  by  the  United  States  Const.,  14th 
Amend.,  where  the  state  courts,  in  efifect, 
have  held  that  the  use  was  public,  on 
evidence  tending  to  show  that  the  spur 
track  was  designed,  in  part,  for  the  stor- 
age of  cars  while  loading  and  unloading, 
and  to  relieve  the  congestion  of  business, 
although  the  motive  which  dictated  its 
location  over  the  land  in  question  was  to 
reach  a  private  industry,  which  contrib- 
uted to  the  cost.  Hairston  v.  Danville, 
etc.,  R.  Co.,  208  U.  S.  598,  52  L.  Ed.  637, 
L^8  S.  Ct.  331. 

765-71.  Streets  and  highways. — The 
right  of  a  railroad  company  to  condemn 
and  for  the  relocation  of  .a  highway 
crossed  by  its  tracks,  given  by  Rev.  St. 
§§  646,  647,  is  not  taken  away  by  the  acts 
of  congress  relating  to  the  elimination  of 
grade  crossings  and  providing  for  a  union 
station  in  this  district  (31  Stat.  767,  c. 
353,  31  Stat.  775,  c.  354,  and  32  Stat.  909, 
c.  856).  (1906)  V/inslow  v.  Baltimore  & 
O.  R.  Co.,  28  App.  D.  C.  126,  judgment 
affirmed.  Winslow  t'.  Baltimore,  etc.,  R. 
Co.,  208  U.  S.  59,  52  L.  Ed.  388,  28  S.  Ct. 
190. 

766-78.  Irrigation. — Hairston  v.  Danville, 
etc.,  R.  Co.,  208  U.  S.  598,  52  L.  Ed.  637, 
28   S.   Ct.   331. 

Acts  1895,  p.  21,  c.  21  of  Texas  (Rev. 
St.  1895,  tit.  60,  c.  2),  authorizes  the  or- 
ganization of  corporations  for  the  con- 
struction of  reservoirs,  ditches,  etc.,  and 
the  furnishing  of  water  "to  all  persons 
entitled  to  the  same"  for  irrigation  and 
other  purposes,  to  make  contracts  for  the 
sale  of  permanent  water  rights,  to  lease, 
to  rent,  and  to  otherwise  dispose  of 
water,  and  provides  that  all  persons  pos- 
sessing land  adjacent  to  any  ditch  shall 
have  a  right  of  water  for  any  of  the  pur- 
poses mentioned  at  just  prices,  and  that, 
if  any  shortage  occurs,  the  distribution 
of  water  shall  be  pro  rata.  Held,  that  the 
purposes  for  which  the  act  authorizes 
the  taking  of  private  property  are  public 
in  character,  judgment  (1905),  86  S.  W. 
:i,  98  Tex.  494,  107  Am.  St.  Rep.  640,  af- 


541 


767-773 


EMINENT  DOMAIN. 


Vol.  V. 


k.    Mills  and  Milldams. — See  note  83. 

t.  Navigation. — In  one  case  the  supreme  court  of  the  United  States  affirmed 
without  report  a  case  from  the  highest  court  of  a  state  which  held  that  a  cor- 
poration organized  for  purpose  of  navigation  could  exercise  the  power  of  emi- 
nent domain. ^^'^  Under  the  statutes  of  Texas  a  corporation  organized  for  pur- 
poses of  navigation  has  power  to  condemn  land  for  the  construction  thereon  of 
necessary  works  to  carry  on  its  business. ^^"^ 

u.  Stock  Raising. — Under  the  statutes  of  at  least  one  jurisdiction,  in  a  case 
affirmed  by  the  United  States  supreme  court  without  report,  it  has  been  held 
that  a  corporation  organized  for  stock  raising  in  connection  with  other  public 
purposes  may  exercise  the  power  of  eminent  domain. '^^'^ 

IX.  What  Constitutes  a  Taking. 

A.  In  General. — Where  an  officer  or  agent  of  the  United  States  government 
appropriates  private  property  for  the  use  of  the  government  such  appropriation, 
when  adopted  by  the  United  States,  constitutes  a  taking  under  the  power  of  emi- 
nent domain. ^-^"^ 

J|-.  Use  of  Patent  without  License. — The  appropriation  by  the  United 
States  of  a  license  to  use  an  invention  patented  by  an  individual  who  is  not  an 
employee  of  the  United  States,  and  was  not  so  employed  at  the  time  that  the 
patent  was  granted,  constitutes  a  taking  within  the  provision  of  the  constitution, 
requiring  due  compensation  to  be  made  for  private  property  if  taken  for  public 
use.^*^ 

K.  Damaging  without  Occupation  or  Appropriation — 6.  Requiring 
Changes  in  Bridge. — Changes  in  Bridge. — See  note  13. 

9.  Destruction  of  Easement. — The  destruction  of  an  easement  which  re- 
sults from  the  appropriation  of  property  for  public  purposes  constitutes  a  taking 


firmed.  Borden  z'.  Trespalacios,  etc.,  Irrig. 
Co.,  204  U.  S.  667,  51  L.  Ed.  671,  27  S.  Ct. 
785. 

767-83.  Milling  purposes. — Under  a 
statute  of  Texas  it  has  been  held  that  a 
corporation  organized  for  milling  pur- 
poses has  power  to  condemn  private  land 
for  a  right  of  way  for  its  works.  Borden 
v.  Trespalacios,  etc.,  Irrig.  Co.,  204  U. 
S.  667,  51  L.  Ed.  671,  27  S.  Ct.  785,  af- 
firming 98  Tex.  494,  86  S.   W.   11. 

769-91a.  Navigation.— Borden  v.  Tres- 
palacios, etc.,  Irrig.  Co.,  204  U.  S.  667,  51 
L.   Ed.  671,  27  S.  Ct.  785. 

769-91b.  In  Texas.— Borden  v.  Tres- 
palacios, etc.,  Irrig.  Co.,  204  U.  S.  667,  51 
L.  Ed.  671,  27  S.  Ct.  785,  affirming  98 
Tex.  494,  86  S.  W.  11. 

769-91C.  Stock  raising. — Borden  v. 
Trespalacios,  etc.,  Irrig.  Co.,  204  U.  S. 
667,   51    L.   Ed.   671,   27   S.   Ct.   785. 

It  has  been  held  that  under  the  statutes 
of  Texas  a  corporation  organized  for 
stock  raising  and  other  purposes  has  the 
right  to  condemn  land  under  the  power  of 
eminent  domain.  Borden  v.  Trespalacios, 
etc.,  Irrig.  Co.,  204  U.  S.  667,  51  L.  Ed. 
671,  27  S.  Ct.  785,  affirming  98  Tex.  494, 
86  S.  W.  11. 

769-93a.  What  amounts  to  a  taking. — 
Crozier  v.  Krupp,  224  U.  S.  290,  56  L.  Ed. 
771,  32  S.  Ct.  488. 

Where  an  officer  of  the  United  States, 
in  the  exercise  of  his  official  duty,  wrong- 


fully appropriates  and  converts  private 
property  to  the  use  of  the  government, 
an  adoption  by  the  United  States  of  the 
wrongful  act  of  the  officer  is  an  adoption 
of  the  act  when  and  as  committed,  and 
causes  such  act  of  the  officer  to  be  by 
virtue  of  the  Act  of  June  25,  1910,  36 
Stat.  c.  423,  p.  851,  a  rightful  appropria- 
tion of  property  by  the  government  for 
which  compensation  is  provided.  Crozier 
7'.  Krupp.  224  U.  S.  290,  56  L.  Ed.  771,  32 
S.    Ct.   488. 

771-3a.  Use  of  patent  without  license. 
— Crozier  z'.  Krupp,  224  U.  S.  290,  56  L. 
Ed.    771,    32    S.    Ct.    488. 

773-13.  Changes  in  bridges.— The  action 
of  the  secretary  of  war  in  requiring 
changes  in  a  bridge  over  an  interstate 
waterway  within  a  specified  time,  and 
after  the  parties  have  been  heard,  con- 
formably to  Act  March  3,  1899,  c.  425,  § 
18,  30  Stat.  1153  (U.  S.  Comp.  St.  1901,  p. 
3545),  enacted  to  secure  navigation  against 
unreasonable  obstruction,  is  not  such  a 
taking  of  private  property  for  public  use 
as  must,  under  the  federal  constitution, 
be  preceded  by  making,  or  sufficiently 
securing,  compensation  to  the  owners  of 
the  bridge.  Judgment,  United  States  v. 
Monongahela  Bridge  Co.  (D.  C.  1908), 
160  F.  712,  affirmed.  Monongahela  Bridge 
Co.  V.  United  States.  216  U.  S.  177.  54  E. 
Ed.   435,  30   S.   Ct.   356. 


542 


Vol.  V. 


EMINENT  DOMAIN. 


773-778 


under  the  power  of  eminent  domain. ^•^'^  Thus  where  a  tract  of  land  was  flooded 
and  as  a  result  of  that  flooding  a  private  right  of  way  which  gave  access  to  the 
county  road  was  destroyed,  it  was  held  that  the  destruction  of  the  right  of  way 
constituted  a  taking.^^''  And  where  the  county  road  was  flooded  and  access  by 
this  road  destroyed,  this  was  also  held  to  constitute  a  taking.^^'^ 

X.  Compensation. 

B.  Necessity  of  Compensation. — See  note  28.  An  award  of  nominal  dam- 
ages, where  the  circumstances  warrant  it,  will  not  be  held  to  deprive  an  owner 
of  the  just  compensation  to  which  he  is  entitled  where  private  property  is  taken 
for  public  use.-'"' 

C.  Necessity  of  Statutory  Provisions  for  Compensation. — See  note  30. 

D.  Persons  Entitled  to  Compensation. — See  note  31. 


773-15a.      Destruction     of     easement. — 

United  States  v.  Welch,  217  U.  S.  333, 
54  L.  Ed.  787,  30  S.  Ct.  527;  United 
States  V.  Sewell,  217  U.  S.  601,  54  L.  Ed. 
897,  30  S.  Ct.  691;  United  States  v.  Griz- 
zard,  219  U.  S.  180,  55  L.  Ed.  165,  31  S. 
Ct.    162. 

773-15b.  Flooding  tract  of  land.— 
United  States  v.  Welch,  217  U.  S.  333,  54 
L.    Ed.    787,   30   S.    Ct.    527. 

A  private  right  of  way  is  an  easement 
and  is  land,  and  if  it  were  destroyed  and 
ended,  a  destruction  for  public  purposes 
may  as  well  be  a  taking  as  would  be  an 
appropriation  for  the  same  end.  Miller 
V.  Horton,  152  Mass.  540,  547;  United 
States  V.  Welch,  217  U.  S.  333,  339,  54 
L.  Ed.  787,  30  S.  Ct.  527. 

773-15C.  Flooding  county  road  and 
private  way. — United  States  v.  Grizzard, 
219  U.  S.  180,  55  L.  Ed.  165,  31  S.  Ct. 
162. 

"But  here  there  has  been  an  actual 
taking  by  permanently  flooding  of  a  part 
of  the  farm  of  the  defendants  in  error. 
An  incident  of  that  flooding  is  that  a  pub- 
lic road  running  across  the  flooded  land 
is  also  flooded.  But  if  this  were  not  so, 
and  the  roadway  had  simply  been  cut  ofif 
by  the  interposition  of  the  flooded  portion 
of  the  farm,  the  damage  would  be  the 
same.  Since,  therefore,  there  has  been  a 
taking  of  a  part  of  the  owners'  single 
tract  and  damage  has  resulted  to  the 
owners'  remaining  interest  by  reason  of 
the  relation  between  the  taken  part  and 
that  untaken,  or  by  reason  of  the  use  of 
the  taken  land,  the  rule  applied  in  the 
cases  cited  does  not  control  this  case." 
United  States  v.  Grizzard,  219  U.  S.  180, 
183,    55    L.    Ed.    165,   31    S.    Ct.    162. 

776-28.  Necessity  of  compensation. — 
Cincinnati  v.  Louisville,  etc.,  R.  Co.,  223 
U.   S.  390,   56   L.    Ed.   481,  32   S.    Ct.   267. 

"The  constitutional  limitation  upon  the 
power  of  eminent  domain  possessed  by 
the  United  States  is  that  'private  property 
shall  not  be  taken  for  public  use  without 
just  compensation.'  "  United  States  v. 
Grizzard.  219  U.  S.  180.  184,  55  L.  Ed. 
165,  31   S.   Ct.   162. 


The  plain  purpose  of  art.  2,  of  the  or- 
dinance of  1787  for  the  government  of 
the  northwest  territory  was  to  limit  the 
right  of  eminent  domain  by  the  require- 
ment that  compensation  should  be  made. 
Cincinnati  z>.  Louisville,  etc.,  R.  Co.,  223 
U.   S.   390,   56   L.    Ed.   481,   32   S.   Ct.   267. 

777-29a.  Award  of  nominal  damages. — 
Appleby  v.  Buffalo,  221  U.  S.  524,  55  L. 
Ed.   838,  31   S.   Ct.  699. 

An  award  of  only  nominal  damages  in 
proceedings  to  acquire  by  eminent  do- 
main the  fee  to  lands  under  the  waters  of 
a  navigable  stream  does  not  take  property 
for  public  use  without  compensation,  and 
hence  without  due  process  of  law,  where 
substantially  all  the  land  abutting  upon 
the  stream  on  either  side  had  already 
been  conveyed  away  by  the  owner  of  the 
bed,  and  the  proceedings  were  had  under 
a  statute  providing  adequate  machinery 
for  the  ascertainment  of  compensation 
upon  notice  and  hearing,  and  the  record 
discloses  no  ruling  of  law  preventing  just 
compensation  to  the  owner  for  the  prop- 
erty taken.  (1911)  Appleby  v.  Buffalo,  221 
U.  S.  524,  55  L.  Ed.  838,  31  S.  Ct.  699,  af- 
firming judgment  (1907)  In  re  City  of 
Buffalo,  81  N.  E.  954,  189  N.  Y.  163,  which 
reverses  judgment  (1906)  101  N.  Y.  S. 
966. 

777-30.  Necessity  of  statutory  pro- 
visions.— The  suit  in  the  court  of  claims 
for  compensation  provided  for  by  the 
Act  of  June  25,  1910,  "whenever  an  in- 
vention described  in  and  covered  by  a 
patent  of  the  United  States  shall  here- 
after be  used  by  the  United  States  witli- 
out  license  of  the  owner  thereof  or  law- 
ful right  to  use  the  same,"  answers  all 
requirements  as  to  compensation  neces- 
sary to  sustain  the  statute  as  an  exercise 
of  the  power  of  eminent  domain.  Crozier 
V.  Krupp,  224  U.  S.  290,  56  L.  Ed.  77L 
32  S.   Ct.  488. 

778-31.  Owner  at  time  of  taking. — 
A  vendee  of  land  upon  wliich  a  railroad 
company,  entitled  to  enter  and  build  its 
road  thereon,  on  condition  that  compen- 
sation be  made,  had  constructed  and  put 
into    operation   its   road   without   any   ob- 


543 


780-782 


EMINENT  DOMAIN. 


Vol.  V. 


F|.  Making  of  Survey  as  a  Condition  Precedent  to  Payment  of  Com- 
pensation.— It  has  been  held  that  a  landowner  may  be  required  to  furnish  a 
survey  definitely  ascertaining  the  lands  by  metes  and  bounds  before  the  appro- 
priator  can  be  required  to  pay  compensation.'"'"' 

G.  Measure  and  Elements  of  Compensation — 2i4.  Dependent  upon 
Extent  oe  Interest  Acquired. — Right  of  Property  Owners  to  Combine 
Interests. — The  owners  of  the  fee  of  land  taken  for  a  public  use,  of  an  ease- 
ment, of  way,  light  and  air  over  such,  and  the  holder  of  a  mortgage  on  the  same 
subject  to  the  easement  can  not  combine  their  interests  and  have  the  damages 
assessed  in  a  lump  sum,  and  estimated  as  if  the  land  was  the  property  of  a  single 
owner.-*^^ 

4.  Where  Part  of  Tract  Is  Taken. — Whenever  there  has  been  an  actual 
physical  taking  of  a  part  of  a  distinct  tract  of  land,  the  compensation  to  be 
awarded  includes  not  only  the  market  value  of  that  part  of  the  tract  appro- 
priated, but  the  damage  to  the  remainder  resulting  from  that  taking,  embracing 
injury  due  to  the  use  to  which  the  part  appropriated  is  to  be  devoted. ^"^     The 


jection  from  the  then  owner  to  its  failure 
to  comply  with  such  condition  as  to  com- 
pensation, takes  the  land  subject  to  the 
burden  of  the  right  of  way,  and  the  right 
to  exact  payment  therefor  belongs  to  the 
owner  at  the  time  the  company  entered 
and  constructed  the  road.  Kindred  r. 
Union  Pac.  R.  Co.,  225  U.  S.  582,  56  L- 
Ed.  1216,  32  S.  Ct.  780. 

"So,  if  the  appellants  be  regarded  as 
claiming  under  the  Indian  assignees, 
which  is  the  most  favorable  view  for  the 
appellants,  the  case  still  falls  within  the 
general  rule  that  where  a  railroad  com- 
pany enters  upon  the  land  of  another 
and  constructs  a  railroad  thereover 
under  a  statute  entitling  it  so  to  do 
on  condition  that  compensation  be  made 
to  the  owner,  and  the  latter  permits  the 
road  to  be  constructed  and  put  into  op- 
eration without  a  compliance  with  that 
condition,  a  subsequent  vendee  of  the 
owner  takes  the  land  subject  to  the  bur- 
den of  the  right  of  way,  and  the  right 
to  exact  payment  therefor  from  the  rail- 
road company  belongs  to  the  owner  at  the 
time  the  company  entered  and  constructed 
the  road."  Kindred  v.  Union  Pac.  R.  Co., 
225  U.  S.  582,  56  L.  Ed.  1216,  32  S.  Ct. 
780. 

780-39a.  Necessity  for  survey. — United 
States  V.  Sewell,  217  U.  S.  601,  54  L.  Ed. 
897,  30  S.  Ct.  691. 

It  is  ordered  that  before  the  govern- 
ment is  required  to  pay  for  the  land 
held  to  have  been  taken,  plaintiffs  below 
shall  furnish  a  survey  definitely  ascer- 
taining the  land  by  metes  and  bounds. 
United  States  v.  Sewell,  217  U.  S.  601,  54 
L.   Ed.   897,  30  S.   Ct.   691. 

780-40a.  Right  to  combine  interests. — 
Boston  Chamber  of  Commerce  zk  Boston, 
217  U.  S.  189,  54  L.  Ed.  725,  30  S.  Ct. 
459. 

The  owners,  respectively,  of  the  fee  of 
land  taken  for  a  public  street  and  of  an 
easement  of  way,  light,  and  air  over  such 
land,   and    the    holder   of   a    mortgage    on 


the  same,  subject  to  the  easement,  can 
not  successfully  claim  to  have  been  de- 
nied rights  under  Const.  U.  S.  Amend. 
14,  because  they  were  not  permitted  to 
pool  their  interests  and  have  the  damages 
assessed  in  a  lump  sum,  and  estimated 
as  if  the  land  was  the  sole  property  of 
one  owner.  ludgment  (1907)  81  N.  E.  244, 
195  Mass.  338,  affirmed.  Boston  Chamber 
of  Commerce  v.  Boston,  217  U.  S.  189,  54 
L.    Ed.  725,  30  S.   Ct.  459. 

782-50a.  Taking  part  of  tract. — United 
States  V.  Grizzard,  219  U.  S.  180,  55  L.  Ed. 
165,  31  S.  Ct.  162. 

Just  compensation  to  the  owner  of  a 
farm,  a  part  of  which  is  taken  by  the 
United  States  by  permanently  flooding  it 
in  improving  navigation,  as  an  incident 
to  which  a  public  highway  crossing  the 
flooded  land  is  also  flooded,  demands  an 
award  of  the  damages  to  that  part  of  the 
farm  not  taken  by  reason  of  the  destruc- 
tion of  the  easement  of  access  to  the 
turnpike  by  way  of  the  highway  thus 
destroyed.  United  States  v.  Grizzard,  219 
U.   S.  180,  55  L.   Ed.  165,  31   S.   Ct.  162. 

The  owner  of  a  farm,  a  part  of  which  is 
permanently  flooded  by  a  government 
dam,  must  be  compensated,  in  addition 
to  the  value  of  the  land  taken,  for  the 
lessened  value  of  the  farm,  caused  by 
the  consequent  cutting  off  of  a  private 
way  across  the  lands  of  others,  which  is 
the  only  practicable  outlet  from  the  farm 
to  the  country  road.  United  States  v. 
Welch,  217  U.  S.  333,  54  L.  Ed.  787,  30  S. 
Ct.  527;  United  States  v.  Sewell,  217  U.  S. 
601,  54  L.  Ed.  897,  30  S.  Ct.  691. 

"If,  as  the  court  below  found,  the  flood- 
ing and  taking  of  a  part  of  the  plaintiff's 
farm  has  depreciated  the  usefulness  and 
value  of  the  remainder  the  owner  is  not 
justly  compensated  by  paying  for  only 
that  actually  appropriated,  and  leaving 
him  uncompensated  for  the  depreciation 
over  benefits  to  that  which  remains.  In 
recognition  of  this  principle  of  justice  it 
is  required  that  regard  be  had  to  the  effect 


544 


Vol.  V. 


EMINENT  DOMAIN. 


782-791 


just  compensation  guaranteed  by  the  constitution  requires  that  the  recompense 
to  the  owner  for  the  loss  caused  to  him  by  the  taking  of  a  part  of  a  parcel,  or 
single  tract  of  land,  shall  be  measured  by  the  loss  resulting  to  him  from  the 
appropriation.^'"' 

G|.  Effect  of  Payment  of  Compensation. — The  payment  by  the  appro- 
priation and  the  acceptance  by  the  landowner  of  the  award  of  the  jury  in  con- 
demnation proceedings  terminates  the  proceedings.^*^ 

XII.   Condemnation  Proceedings. 

J.  Conduct  and  Mode  of  Trial— 2.  A'Iode  of  Trial— b.  Jury  Trial— {l]^) 
Qualifications  of  Jurors. — Time   of  Making   Objections    to    Qualifications 

of  Jurors. — It  has  been  held  that  under  a  statute  of  the  District  of  Columbia 
providing  for  the  assessment  of  benefits  upon  property  appropriated  for  the  ex- 
tension of  a  street,  objection  to  the  qualification  of  the  jurors  must  be  made  be- 
fore they  are  accepted  and  sworn. ^^'^ 

(1  3/4)  Oath. — Form  of  Oath. — Under  a  special  statute  providing  for  the 
condemnation  of  land  in  the  District  of  Columbia,  it  has  been  held  that  a  recita- 
tion in  the  record  that  the  oath  was  administered  according  to  the  statute  imports 


of  the  appropriation  of  a  part  of  a  single 
parcel  upon  the  remaining  interest  of  the 
owner,  by  taking  into  account  both  the 
benefits  which  accrue  and  the  deprecia- 
tion which  results  to  the  remainder  in  its 
use  and  value."  United  States  v.  Grizzard, 
219  U.  S.  180,  184,  55  L.  Ed.  165,  31  S.  Ct. 
162. 

"That  the  trial  judge  found  the  damages 
for  the  land  and  for  the  easement  of  ac- 
cess separately  is  not  controlling.  The 
determining  factor  was  that  the  value  of 
that  part  of  the  Grizzard  farm  not  taken 
was  fifteen  hundred  dollars,  when  the 
value  of  the  entire  place  before  the  taking 
was  three  thousand  dollars.  A  judgment 
for  a  less  sum  will  not  be  that  'just  com- 
pensation' to  which  the  defendants  are  en- 
titled. The  case  is  not  different  in  legal 
consequence  from  what  it  would  have  beeji 
if  a  railway  had  been  constructed  across 
one's  lawn,  cutting  the  owner  oflF  from  his 
road  and  outbuildings,  etc.  To  say  that 
such  an  owner  would  be  compensated  by 
paying  him  only  for  the  narrow  strip  ac- 
tually appropriated,  and  leaving  out  of 
consideration  the  depreciation  to  the  re- 
maining land  by  the  manner  in  which  the 
part  was  taken,  and  the  use  to  which  it 
was  put,  would  be  a  travesty  upon  jus- 
tice." United  States  v.  Grizzard,  219 
U.  S.  180,  185,  55  L.  Ed.  165,  31  S.  Ct. 
162. 

782-50b.  Loss  resulting  from  appropri- 
ation.— United  States  z\  Grizzard,  219  U. 
S.  18ft,  55  L.  Ed.  165,  31  S.  Ct.  162. 
■  785-68a.  Effect  of  payment  of  compen- 
sation.—Winslow  :■.  Baltimore,  etc.,  R. 
Co.,  208  U.  S.  59,  52  L.  Ed.  388,  28  S.  Ct. 
190. 

A  condemnation  proceeding  becomes 
functus  officio  where  the  owners  of  the 
condemned  property,  who  originally  in- 
sisted that  the  petition  could  not  be  main- 

12  U  S  Enc— 35  545 


tained,  have  accepted  and  received  the 
sum  awarded  as  the  value  of  so  much  of 
their  lands  as  was  actually  taken,  and  such 
owners  therefore  can  not  thereafter  de- 
mand the  condemnation  of  the  remaining 
land,  altiiough  they  have  neither  asked 
for  nor  received  the  sum  awarded  as  the 
amount  of  the  damage  to  the  portion  of 
their  lands  not  actually  taken.  Judgment 
(1906),  28  App.  D.  C.  126,  afi^rmed.  Wins- 
low  V.  Baltimore,  etc.,  R.  Co.,  208  U.  S.  59, 
52  L.  Ed.  388,  28  S.  Ct.  190. 

791-95a.  Time  of  making  objections. — 
Columbia  Heights,  etc.,  Co.  i\  Rudolph, 
217  U.  S.  547,  54  L.   Ed.  877,  30  S.   Ct.  581. 

Objections  that  the  court  did  not  ex- 
amine the  jurors  in  the  proceeding  under 
the  Act  of  June  6,  1900,  for  the  reassess- 
ment of  benefits  upon  lots  benefited  by 
the  extension  of  Eleventh  Street,  in  the 
District  of  Columbia,  as  to  whether  they 
possessed  the  qualifications  required  by 
§  4  of  that  act,  nor  administer  to  them  the 
oath  required  by  statute,  come  too  late 
when  not  made  at  the  time  the  jurors  were 
accepted  and  sworn.  Columbia  Heights, 
etc.,  Co.  V.  Rudolph,  217  U.  S.  547,  54  L. 
Ed.  877,  30  S.  Ct.  581. 

"As  to  the  qualifications  of  the  jurors: 
Primarily,  they  had  been  summoned,  as 
shown  by  the  order  to  the  marshal  and 
his  return,  as  men  having  the  statutory 
qualifications.  The  journal  recites  that 
the  court  'accepted  them  as  qualified.'  No 
hint  is  found  in  this  transcript  that  they 
were  not  qualified,  or  that  they  were 
guilty  of  any  misconduct.  Not  having 
asked  the  court  to  examine  them  before 
accepting  them,  or  to  be  then  permitted 
to  qualify  them,  it  was  not  reversible  er- 
ror to  deny  the  privilege  after  they  had 
been  sworn  and  accepted."  Columbia 
Heights,  etc.,  Co.  v.  Rudolph,  217  U.  S. 
547,  556,  54  L.  Ed.  877,  30  S.  Ct.  581. 


791 


BMINBNT  DOMAIN. 


Vol.  V. 


that  the  statutory  oath  was  followed  as  far  as  applicable.^^" 

Necessity  That  Counsel  of  Property  Owner  Be  Present. — And  under 
the  same  statute  it  has  been  held  that  the  fact  that  counsel  for  the  landowner 
was  not  present  when  the  jurors  were  accepted  and  sworn  did  not  invalidate  the 
impaneling  of  the  jury.^^"^ 

(3)  Instructions. — An  instruction  one  portion  of  which  might  give  the  jury 
a  wrong  rule  for  the  assessment  of  benefits  will  not  be  held  to  be  erroneous, 
where  from  a  consideration  of  other  parts  of  the  instruction  a  correct  rule  is 
given  in  a  way  which  makes  the  entire  instruction  clear.^'*^ 

(4)  Verdict. — Confirmation  of  Verdict. — A  statute  of  the  District  of  Co- 
lumbia provided  that  the  commissioners  of  the  district  would  make  application 
to  the  supreme  court  of  the  District  of  Columbia  for  the  final  ratification  and 
confirmation  of  the  verdicts  of  the  jury  for  and  in  respect  to  the  land  condemned 
for  the  extension  of  Eleventh  Street.  Under  this  statute  it  was  held  that  the 
supreme  court  could  ratify  the  award  and  thus  make  it  res  judicata  as  to  the 
amount  of  damages  awarded  without  making  it  final  as  to  the  assessment  of 
benefits.^"'' 

(5)  Reassessment  of  Benefits. — Under  statutes  passed  providing  for  the 
appropriation  of  land  in  the  District  of  Columbia,  if  the  court  refused  to  confirm 
the  award  of  the  jury  as  to  the  assessment  of  benefits,  a  reassessment  could  be 
had  without    disturbing  the  award  as  to  damages, ^'^'^    and  such    reassessment  is 


791-95b.  Form  of  oath.— Columbia 
Heights,  etc.,  Co.  v.  Rudolph,  217  U.  S. 
547,  54  L.  Ed.  877,  30  S.  Ct.  581. 

Statutory  form  followed. — A  journal 
entry  in  the  proceeding  under  the  Act  of 
June  6,  1900,  for  the  reassessment  of  ben- 
efits upon  lots  benefited  by  the  extension 
of  Eleventh  Street,  in  the  District  of  Col- 
umbia, which  recites  that  the  oath  was 
administered  to  the  jurors  in  accordance 
with  the  provisions  of  that  statute,  imports 
that  the  statutory  oath  was  followed  as 
far  as  applicable.  Columbia  Heights,  etc., 
Co.  V.  Rudolph,  217  U.  S.  547,  54  L.  Ed. 
877,  30  S.  Ct.  581. 

791-95C.  Presence  of  counsel. — Colum- 
bia Heights,  etc.,  Co.  v.  Rudolph,  217  U. 
S.  547,  556,  54  h.  Ed.  877,  30  S.  Ct.  581. 

The  refusal  of  the  court,  after  the  ac- 
ceptance and  swearing  of  the  jury,  in  a 
proceeding  under  the  Act  of  June  6,  1900, 
for  the  reassessment  of  benefits  upon  lots 
benefited  by  the  extension  of  Eleventh 
Street,  in  the  District  of  Columbia,  to  per- 
mit counsel  to  examine  the  jurors  as  to 
their  qualification,  is  not  reversible  error, 
although  counsel  was  not  present  at  the 
time  they  were  accepted  and  sworn, 
where,  under  the  statute  and  the  warning 
order,  the  parties  interested  were  required 
to  be  present  and  "continue  in  attendance" 
until  the  matter  was  ended.  Columbia 
Heights,  etc.,  Co.  v.  Rudolph,  217  U.  S. 
547,  54  L.   Ed.  877,  30  S.  Ct.  581. 

791-97a.  Instructions. — Columbia  Heights, 
etc.,  Co.  V.  Rudolph,  217  U.  S.  547,  54  L. 
Ed.  877,  30  S.  Ct.  581. 

An  instruction  in  the  proceeding  under 
the  Act  of  June  6,  1900,  for  the  reassess- 
ment of  benefits  upon  the  lots  benefited 
by  the    extension    of  Eleventh    Street,    in 


the  District  of  Columbia,  is  not  open  to 
the  objection  that  the  jury  was  not  limited 
to  the  benefits  resulting  immediately  from 
the  opening  of  the  street,  but  might  con- 
sider all  enhancement  which  might  come 
from  subsequent  improvement  of  or  upon 
the  street,  where  the  court  eliminated  any 
doubt  as  to  its  meaning  by  other  parts  of 
its  charge,  in  which  the  jury  was  told  that 
the  benefits  must  come  immediately  from 
the  extension  of  the  street,  and  not  from 
any  subsequent  improvement.  Columbia 
Heights,  etc.,  Co.  v.  Rudolph,  217  U.  S. 
547,  54  L.  Ed.  877,  30  S.  Ct.  581. 

791-97b.  Confirmation  of  Verdict. — 
Columbia  Heights,  etc.,  Co.  v.  Rudolph, 
217  U.  S.  547,  54  L.   Ed.  877,  30  S.  Ct.  581. 

Confirmation  of  that  part  of  the  verdict 
of  the  jurors  in  the  proceeding  under  the 
Act  of  March  3,  1899,  for  the  extension  of 
Eleventh  Street,  in  the  District  of  Colum- 
bia, which  award  damages  to  the  land  not 
taken,  from  being  left  high  above  or  be- 
low the  grade,  is  not  res  judicata  as  to  the 
benefits  accruing  to  the  same  land,  which 
the  statute  says  shall  not  be  less  that  50 
per  cent  of  tiie  damages  sustained.  Co- 
lumbia Heights,  etc.,  Co.  v.  Rudolph,  217 
U.  S.  547,  54  L.  Ed.  877,  30  S.  Ct.  581. 

791-97C.  Reassessmen t. — Columbia 
Heights,  etc.,  Co.  v.  Rudolph,  217  U.  S. 
547,  54  L.  Ed.  877,  30  S.  Ct.  581. 

The  Act  of  Congress  of  June  6,  "1900, 
provided  that  the  commissioners  should' 
make  application  to  the  supreme  court  of 
the  District  of  Columbia  "for  the  final  rat- 
ification and  confirmation  of  the  awards 
of  the  jury  for  and  in  respect  to  the  land 
condemned  for  the  extension  of  Eleventh 
Street,"  etc.  And  "in  the  event  that  the 
assessments  for  benefits  levied  by  the  jury 


546 


Vol.  V. 


BMINBNT  DOMAIN. 


791-793 


not  a  new  proceeding  which  may  be  barred  by  the  statute  of  Hmitations.'^"'' 

P.  Review  of  Proceedings. — Waiver  of  Right  to  Review. — A  landowner, 
by  accepting  the  amount  of  an  award  in  condemnation  proceedings,  waives  his 
right  to  have  the  proceedings  reviewed  in  an  appellate  court. ^'^'^ 

Questions  Reviewable. — On  an  appeal  from  condemnation  proceeding  a 
landowner  can  not  demand  that  the  appropriator  condemn  the  entire  tract  of 
land  where  a  part  only  is  needed  and  taken. ^^'^  In  condemnation  proceedings 
the  power  of  a  court  to  review  the  award  of  the  jury  is  limited  to  plain  errors  of 
law,  misconduct  or  grave  error  of  fact  indicating  plain  partiality  or  corruption,!^'' 
and  it  is  not  within  the  province  of  the  United  States  supreme  court  on  an  appeal 
from  such    an    award  to    weigh    the    evidence,!^'^  and    where    all    the    evidence 


in  relation  to  said  Eleventh  Street  shall 
for  any  reason  be  declared  void,  the  said 
commissioners  *  *  *  are  authorized  and 
directed  to  make  application  to  said  court 
for  a  reassessment  for  such  benefits  under 
and  in  accordance  with  the  provisions  of 
this  act."  The  procedure  under  this  act 
differs  in  many  particulars  from  that  un- 
der the  Act  of  1898.  Columbia  Heights, 
etc.,  Co.  V.  Rudolph,  217  U.  S.  547,  553,  51 
L.  Ed.  877,  30  S.  Ct.  581. 

A  reassessment  of  benefits  under  the 
Act  of  June  6,  1900  (31  Stat,  at  L.  668, 
chap.  809),  upon  lots  benefited  by  the  ex- 
tension of  Eleventh  Street,  in  the  District 
of  Columbia,  is  properly  made,  where  the 
earlier  Act  of  March  3,  1899  (30  Stat,  at  L. 
]344,  chap.  431),  under  which  the  original 
assessment  of  benefits  was  made,  had  been 
superseded  by  the  new  enactment  at  the 
time  of  the  court's  refusal  to  confirm  such 
assessment,  which  refusal  was  assumed 
by  the  parties  to  amount  to  an  annulment 
of  the  award  of  benefits  by  the  first  jury. 
Columbia  Heights,  etc.,  Co.  v.  Rudolph, 
217  U.  S.  547,  54  L.  Ed.  877,  30  S.  Ct.  581. 

791-97d.  Limitation. — Columbia  Heights, 
etc.,  Co.  V.  Rudolph,  217  U.  S.  547,  54  L. 
Ed.  877,  30  S.  Ct.  581. 

A  proceeding  for  the  reassessment  of 
benefits  upon  lots  benefited  by  the  exten- 
sion of  Eleventh  Street,  in  the  District  of 
Columbia,  taken  under  the  Act  of  June  6, 
1900,  superseding  the  Act  of  March  3, 
1899,  can  not  be  regarded  as  a  new  action, 
for  the  purpose  of  applying  the  statute  of 
limitations,  but  must  be  deemed  a  con- 
tinuance of  the  old  proceeding.  Colum- 
bia Heights,  etc.,  Co.  v.  Rudolph,  217  U. 
S.  547,  54  L.  Ed.  877,  30  S.  Ct.  581. 

793-16a.  Waiver.— Winslow  v.  Balti- 
more, etc.,  R.  Co.,  208  U.  S.  59,  52  L.  Ed. 
388,  28  S.  Ct.  190. 

Where,  in  proceedings  bj''  a  railroad 
company  to  condemn  land  for  railroad 
purposes,  and  allowing  it  to  relocate 
streets  crossed  by  its  tracks,  a  property 
owner  whose  land  is  taken  accepts  the 
award  of  the  appraisers,  he  is  estopped  to 
appeal  from  the  decree  ratifying  such 
award,  or  at  least  from  appealing  in  re- 
spect to  the  land  taken  and  the  legality  of 
such  taking.     (1906)  Winslow  v.  Baltimore 


&  O.  R.  Co.,  28  App.  D.  C.  126,  judgment 
affirmed  Winslow  v.  Baltimore,  etc.,  R. 
Co.,  208  U.  S.  59,  52  L.  Ed.  388,  28  S.  Ct. 
190. 

By  accepting  the  sum  awarded  in  con- 
demnation proceedings  as  the  value  of 
that  portion  of  their  lands  actually  taken, 
the  owners  are  estopped  to  insist  that  the 
petition  was  not  maintainable.  Judgment 
(1906)  28  App.  D.  C.  126,  affirmed.  Wins- 
low 7'.  Baltimore,  etc.,  R.  Co.,  208  U.  S.  59, 
52  L.  Ed.  388,  28  S.  Ct.  190. 

793-16b.  Questions  reviewable. — Wins- 
low V.  Baltimore,  etc.,  R.  Co.,  208  U.  S.  59, 
52  L.  Ed.  388,  28  S.  Ct.  190. 

A  property  owner  Can  not,  in  a  condem- 
nation proceeding,  properly  urge  that  a 
railroad  company  should  have  condemned 
the  whole  of  his  tract  of  land,  instead  of 
only  a  portion  of  it,  on  an  appeal  from  so 
much  of  the  decree  confirming  the  award 
of  the  appraisers  "as  fails  to  require  the 
petitioner  to  acquire  the  entire  tract," 
where  the  proceedings  were  to  acquire  a 
part  only.  (1906)  Winslow  v.  Baltimore 
&  O.  R.  Co.,  28  App.  D.  C.  126,  judgment 
affirmed.  Winslow  v.  Baltimore,  etc.,  R. 
Co.,  208  U.  S.  59,  52  L.  Ed.  388,  28  S.  Ct. 
190. 

793-16C.  Columbia  Heights,  etc.,  Co.  v. 
Rudolph,  217  U.   S.   547,   54  L.   Ed.   877,  30 

5.  Ct.  581. 

The  power  of  the  court  to  review  the 
award  made  by  the  jury  appointed  to 
view  the  premises  and  hear  the  testimony 
in  the  proceedmg  under  the  Act  of  June 

6,  1900,  for  the  reassessment  of  benefits 
resulting  from  the  extension  of  Eleventh 
Street,  in  the  District  of  Columbia,  is  lim- 
ited to  plain  errors  of  law,  misconduct,  or 
grave  error  of  fact,  indicating  plain  par- 
tiality or  corruption.  Columbia  Heights, 
etc.,  Co.  V.  Rudolph,  217  U.  S.  547,  54  L. 
Ed.  877,  30  S.  Ct.  581. 

793-16d.  Authority  to  weigh  evidence. — 
Columbia  Heights,  etc.,  Co.  v.  Rudolph, 
217  U.  S.  547,  54  L.  Ed.  877,  30  S.  Ct.  581. 

"Why  the  court  should  be  required  to 
read,  or  hear  read,  'in  full,'  a  paper  which 
was  confessedly  but  the  substance  of  the 
testimony  taken  before  the  jury,  as  'ab- 
stracted by  appellant  from  the  testimony 
filed  as  an  affidavit  in  the  case,'  we  are  at 


547 


793-795 


EMPLOYEE. 


Vol.  V. 


is  not  before  the  reviewing  court  nor  any  agreed  statement  of  facts,  it  is  impos- 
sible for  the  court  to  say  whether  the  trial  court  erred  in  holding  the  award  not 
unreasonable  or  so  unjust  as  to  require  a  new  trial  before  another  jury.^^^ 

EMPLOYEE.— See  note  2. 


a  loss  to  know.  The  power  of  the  court 
to  review  the  award  by  such  a  jury  must 
in  the  verj'  nature  of  the  matter  be  limited 
to  plain  errors  of  law,  misconduct  or  grave 
error  of  fact  indicating  plain  partiality  or 
corruption.  The  jury  saw  and  heard  the 
witnesses;  the  court  did  not.  The  jury 
went  upon  and  viewed  the  premises;  the 
■court  did  not.  The  duty  to  review  did  not 
involve  mere  error  in  judgment  as  to  the 
extent  of  enhancement  in  value,  for  the 
judgment  of  the  jury  manifestly  rested 
upon  much  which  could  not  be  brought 
before  the  court.  The  jury  was  expected 
to  exercise  its  own  judgment,  derived 
from  personal  knowledge  from  a  view  of 
the  premises,  as  well  as  from  the  opinion 
evidence  which  might  be  brought  before 
them.  Shoemaker  v.  United  States,  147 
U.  S.  282."  Columbia  Heights,  etc.,  Co.  v. 
Rudolph,  217  U.  S.  547,  560,  54  L.  Ed.  877, 
30  S.   Ct.  581. 

793-16e.  Columbia  Heights,  etc.,  Co.  v. 
Rudolph,  217  U.  S.  547,  54  L.  Ed.  877,  30 
S.  Ct.  581. 

Whether  or  not  the  court  below  erred 
in  holding  the  award  of  the  jury  ap- 
pointed under  the  Act  of  June  6,  1900,  to 
reassess  the  benefits  resulting  from  the 
extension  of  Eleventh  Street,  in  the  Dis- 
trict of  Columbia,  not  unreasonable,  nor 
so  unjust  as  to  require  a  new  trial  before 
another  jury,  is  not  open  in  the  federal 
supreme  court,  where  it  has  not  all  the 
evidence  before  it,  and  there  is  no  agreed 
statement  of  facts.  Columbia  Heights, 
etc.,  Co.  V.  Rudolph,  217  U.  S.  547,  54  L. 
Ed.  877,  30  S.  Ct.  581. 

795-2.  Employees  of  general  land  of- 
fice.— By  §  452  of  the  Revised  Statutes 
"the  officers,  and  clerks  of  the  employees 
in  the  general  land  office  are  prohibited 
from  directly  or  indirectly  purchasing  or 
becoming  interested  in  the  purchase  of 
any  of  the  public  land."  Held,  that  a 
special  agent  of  the  general  land  office 
was  in  every  substantial  sense  an  em- 
ployee, and  was  prevented  from  making 
a  valid  timber-culture  entry.  Prosser  :•. 
Finn,  208  U.  S.  67,  52  L.  Ed.  392,  28  S. 
Ct.  225.  See  post.  PUBLIC  LANDS; 
PUBLIC  OFFICERS. 

Section  452  of  the  Revised  Statutes 
whereby,  "the  officers,  clerks,  and  em- 
ployees in  the  general  land  office  are  pro- 
hibited from  directly  or  indirectly  pur- 
chasing or  becoming  interested  in  the 
purchase  of  any  of  the  public  land."  em- 
braces the  location  of  a  mining  claim  by 
a  mineral  surveyor.     Waskey  v.  Hammer. 


223   U.    S.   85,  92,   56   L.   Ed.   359,   32   S.   Ct. 
187. 

In  §  452  of  the  Revised  Statutes 
whereby,  "the  officers,  clerks,  and  em- 
ployees in  the  general  land  office  are  pro- 
hibited from  directly  or  indirectly  pur- 
chasing or  becoming  interested  in  the 
purchase  of  any  of  the  public  land,"  the 
words  "officers,  clerks  and  employees," 
taken  collectively,  are  very  comprehensive 
and  easily  embrace  all  persons  holding 
positions  under  that  office  and  participat- 
ing in  the  work  assigned  to  it.  The  pur- 
pose of  the  prohibition  is  to  guard  against 
the  temptations  and  partiality  likely  to 
attend  efforts  to  acquire  public  lands,  or 
interests  therein,  by  persons  so  situated, 
and  thereby  to  prevent  abuse  and  inspire 
confidence  in  the  administration  of  the 
public-land  laws.  Waskey  v.  Hammer, 
223  U.  S.  85,  92,  56  L.  Ed.  359,  32  S.  Ct. 
187. 

Meaning  of  term  employees  and  rail- 
road as  used  in  act  regulating  hours  of 
labor. — The  first  sentence  (of  the  Act  of 
March  4,  1907,  regulating  hours  of  labor 
of  railway  employees)  states  the  applica- 
tion to  carriers  and  employees  who  are 
"engaged  in  the  transportation  of  pas- 
sengers or  property  by  railroad"  in  the 
District  of  Columbia  or  the  territories, 
or  in  interstate  or  foreign  commerce. 
The  definition  in  the  second  sentence,  of 
what  the  terms  "railroad"  and  employees 
shall  include,  qualify  these  words  as  pre- 
viously used,  but  do  not  remove  the  limi- 
tation as  to  the  nature  of  the  transporta- 
tion in  which  the  employees  must  be 
engaged  in  order  to  come  within  the  pro- 
visions of  the  statute.  If  the  definition, 
in  the  last  part  of  the  sentence,  of  the 
words  used  in  the  first  part  be  read  in 
connection  with  the  latter  the  meaning 
of  the  whole  becomes  obvious.  The  sec- 
tion, in  effect,  thus  provides:  "This  act 
shall  apply  to  any  common  carrier  or 
carriers,  their  officers,  agents,  and  em- 
ployees (meaning  by  'employees'  persons 
actually  engaged  in  or  connected  with 
the  movement  of  any  train),  engaged  in 
the  transportation  of  passengers  or  prop- 
erty by  railroad  (meaning  by  'railroad'  to 
include  all  bridges  and  ferries  used  or  op- 
erated in  connection  with  any  railroad) 
in  the  District  of  Columbia  or  any  terri- 
tor}^  *  *  *  or  from  one  State  *  *  * 
to  any  other  state."  etc.  In  short,  the 
employees  to  which  the  act  refers,  em- 
bracing the  persons  described  in  the  last 
sentence    of    the    section,    are    those    en- 


548 


Vol.  V. 


BOUAL  PROTECTION  OP  LAW. 


797-800 


EMPLOYERS  AND  EMPLOYEES.— See  post,  Master  and  Servant. 
EMPLOYERS'  LIABILITY  ACT.— See  post,  Master  and  Servant. 
ENDORSEMENT.— See  ante.  Bills,  Notes  and  Checks,  p.  204. 
ENEMY.— See  note  5. 
ENEMY  PROPERTY.— See  note  1. 
ENFORCE.— See  note  la. 

ENGROSSING. — See  post,  Monopolies  and  Corporate  Trusts. 
ENJOIN. — See  post.  Injunctions. 
ENTER— ENTRY.— See  note  799-2. 

ENTIRETY,  ESTATES  BY.— See  post,  Husband  and  Wife;   Joint  Ten- 
ants AND  Tenants  in  Common. 

ENTRYMEN.— See  post.  Public  Lands. 

EQUAL— EQUALLY.— See  note  800-2. 

EQUAL  PROTECTION  OP  LAW.— See  ante,  Constitutional  Law,  p.  264. 


gaged  in  the  transportation  of  passengers 
or  property  by  railroad  in  the  district, 
territorial,  interstate  or  foreign  commerce 
defined;  and  the  railroad,  including 
bridges  and  ferries,  is  the  railroad  by 
means  of  which  the  defined  commerce  is 
conducted.  Baltimore,  etc.,  R.  Co.  v.  In- 
terstate Commerce  Comm.,  221  U.  S.  612, 
617,  5.5  L.  Ed.  878,  31  S.  Ct.  621.  See 
post,  INTERSTATE  AND  FOREIGN 
COMMERCE. 

Interstate  commerce. — As  to  employees 
as  used  in  acts  relating  to  interstate  com- 
merce, see  post.  INTERSTATE  AND 
FOREIGN    COMMERCE. 

797-5.  Enemy's  country. — Under  the 
recognized  rules  governing  the  conduct 
of  a  war  between  two  nations,  Cuba,  be- 
ing a  part  of  Spain,  was  enemy's  country, 
and  all  persons,  whatever  their  national- 
ity, who  resided  there  were,  pending  the 
Spanish  war.  to  be  deemed  enemies  of 
the  United  States  and  of  all  its  people. 
Turagua  Iron  Co.  v.  United  States,  212  U. 
S.  297,  53  L.  Ed.  520.  29  S.  Ct.  385.  See 
post.  REVENUE  LAWS:  WAR. 

798-1.  Enemy — Enemy  property. — "An 
American  corporation,  doing  business  in 
Cuba,  was,  during  the  war  with  Spain, 
to  be  deemed  an  enemy  to  the  United 
States  with  respect  of  its  property  found 
and  then  used  in  that  country,  and  such 
property  could  be  regarded  as  enemy's 
property,  liable  to  be  seized  and  confis- 
cated by  the  United  States  in  the  prog- 
ress of  the  war  then  being  prosecuted." 
Juragua  Iron  Co.  v.  United  States, 
212  U.  S.  297,  306,  53  L.  Ed.  520.  29  S. 
Ct.  385.     See  post,  PRIZE. 

798-la.  Unenforceable  contract. — "The 
laws  of  Mississippi  make  dealing  in  fu- 
tures a  misdemeanor,  and  provide  that 
contracts  of  that  sort,  made  without  in- 
tent to  deliver  the  commodity  or  to  pay 
the  price,  'shall  not  be  enforced  l)y  any 
court.'  The  words  'shall  not  be  enforced 
by  any  court'  are  simply  another,  possibly 
less  emphatic,  way  of  saying  that  an  ac- 
tion shall  not  be  brought  to  enforce  such 


contracts.''  Fauntleroy  v.  Lum,  210  U.  S. 
230,  234,  52  L.  Ed.  1039.  28  S.  Ct.  641. 
See  post,  GAMBLING  CONTRACTS. 

799-2.  Right  of  entry. — "The  rnere 
preference  right  obtained  as  the  result  of 
taking  the  steps  enumerated  in  §§  2348, 
2349,  Rev.  Stat.,  including  the  filing  of 
the  declaratory  statement,  is,  as  described 
in  §  2348,  simply,  'a  preference  right  of 
entry,  under  the  preceding  section,  of  the 
mine  so  opened  and  improved.'  "  United 
States  V.  Forrester,  211  U.  S.  399,  403,  53 
L.  Ed.  245,  29  S.  Ct.  132.  See  post,  PUB- 
LIC  LANDS. 

800-2.  Equal  to. — A  Te.xas  statute  im- 
posed a  tax  upon  railroad  corporations 
and  other  persons  owning  or  controlling 
any  line  of  railroad  in  this  State  "equal  to 
one  per  cent,  of  their  gross  receipts." 
The  court  said:  "We  are  of  the  opinion 
that  the  statute  levying  this  tax  does 
amount  to  an  attempt  to  regulate  com- 
merce among  the  states.  The  distinction 
between  a  tax  equal  to  one  per  cent  of 
gross  receipts  and  a  tax  of  one  per  cent 
of  the  same,  seems  to  us  nothing,  ex- 
cept where  the  former  phrase  is  the  in- 
dex of  an  actual  attempt  to  reach  the 
property  and  to  let  the  interstate  traffic 
and  the  receipts  from  it  alone.  We  find 
no  such  attempt  or  anything  to  qualify 
the  plain  inference  from  the  statute  taken 
by  itself.  On  the  contrary,  we  rather 
infer  from  the  judgment  of  the  state  court 
and  from  the  argument  on  behalf  of  the 
state  that  another  tax  on  the  property 
of  the  railroad  is  upon  a  valuation  of  that 
property  taken  as  a  going  concern.  This 
is  merely  an  effort  to  reach  the  gross  re- 
ceipts, not  even  disguised  by  the  name  of 
an  occupation  tax,  and  in  no  way  helped 
by  the  words  equal  to."  Galveston,  etc., 
R.  Co.  V.  Texas.  210  U.  S.  217.  224.  52  L. 
Ed.  1031.  28  S.  Ct.  638.  See  Flint  v.  Stone 
Tracy  Co.,  220  U.  S.  107,  163,  55  L.  Ed. 
389.  31  S.  Ct.  342.  See.  also,  post,  IN- 
TERSTATE AND  FOREIGN  COM- 
MERCE. 


549 


812-820  EQUITY.  Vol.  V. 

EQUITABLE  DEFENSES.— See  ante,  Actions,  p.  7;  Bills,  Notes  and 
Checks,  p.  204. 

EQUITABLE  ESTATE.— See  post,  Trusts  and  Trustees. 

EQUITABLE  ESTOPPEL.— See  post,  Estoppel. 

EQUITABLE  RELIEF  AGAINST  JUDGMENT.— See  post.  Judgments  and 
Decrees  ;  Libel  and  Slander. 

EQUITABLE  SET-OFF. — See  post.  Set-Off,  Recoupment  and  Counter- 
claim. 


EQUITY. 

III.  Jurisdiction,  550. 

B.  Office  and  Purpose,  550. 

2.  Adaptability  of  Equity   Proceedings  to   Particular  Cases,   550. 
D.    Jurisdiction  as  Affected  by    Existence  of  Adequate    Legal   Remedy, 
550. 
2.  Rule  Construed  and  Applied,  550. 

b.    Tests  as  to    Existence  of    Adequate    Legal  Remedy    within 
Meaning  of  Rule,  550. 
(3)   Remedy  at  Law  Must  Be  as  Practical  and  Efficacious 
as  in  Equity,  550. 
H.  Scope  and  Limitation  of  Jurisdiction,  55L 

L  General  Rules  Determining  Extent  and  Controlling  Exercise,  551. 
b.  Uncontrolled  by  State  Legislation  and  Uniform  Throughout 
the  State,  55 L 
(2)    Administration   of   Equitable   Relief   under   State   Stat- 
utes, 55L 
f.     Power    over    Property    beyond     Territorial    Jurisdiction,    by 
Reason  of  Jurisdiction  over  Person,  55 L 

VIII.  Pleading,   55 L 

B.  Bill,  55L 

2.  Original  Bill,  55 L 

b.  Form,  Requisites  and   Sufficiency,  551. 
(5)    Prayer   for  Relief,   55 L 

(b)   Effect  of  Prayer  for  General  Relief,  55L 

3.  Supplemental  Bills,  55 L 

CROSS  REFERENCES. 

See  the  title  Equity,  vol.  5,  p.  803,  and  references  there  given. 

III.  Jurisdiction. 

B.  Office  and  Purpose — 2.  Adaptability  of  Equity  Proceedings  to  Par- 
ticular Cases. — See  note  13. 
D.  Jurisdiction  as  Affected  by  Existence  of  Adequate  Legal  Remedy — 

2.  Rule  Construed  and  Applied — b.  Tests  as  to  Existence  of  Adequate  Legal 
Remedy  zvithin  Meaning  of  Ride — (3)  Remedy  at  Law  Must  Be  as  Practical 
and  Efficacious  as  in  Equity. — See  note  Z7. 

812-13.    Looks    through    forms    to    sub-  bert.  215  U.   S.   546,  54  L.   Ed.  321,  30   S. 

stance. — A     court    of    equity    is   not    con-  Ct.   218. 

eluded  in  a  suit  in  which  fraud,  oppres-  820-37.  Must  be  as  practical  and  effica- 
sion,  and  undue  influence  are  charged  by  cious  as  remedy  in  equity. — The  remedy 
what  appears  upon  the  face  of  the  papers,  at  law  of  a  railroad  company  to  test  the 
but  may  institute  an  inquiry  into  the  real  validity  of  a  statute  fixing  rates  for  rail- 
facts   of  the   transaction.     Wagg  v.    Her-  road    transportation    by    disobeying    the 

550 


Vol.  V. 


EQUITY. 


833-857 


H.  Scope  and  Limitation  of  Jurisdiction — 1.  General  Rules  Deter- 
mining Extent  and  Controlling  Exercise — b.  Uncontrolled  by  State  Legis- 
lation and  Uniform  Throughout  the  State — (2)  Administration  of  Equitable 
Relief  under  State  Statutes. — See  note  90. 

f.  Power  over  Property  beyond  Territorial  Jurisdiction,  by  Reason  of  Juris- 
diction over  Person. — See  notes  17,  18. 

VIII.  Pleading. 

B.  Bill — 2.  Original  Bill — b.  Form,  Requisites  and  Sufficiency — (5)  Prayer 
for  Relief — (b)  Effect  of  Prayer  for  General  Relief. — See  note  95. 
3.    Supplemental  Bills. — See  note  14. 


statute  once  and  submitting  to  a  criminal 
prosecution  is  not  so  adequate  as  to  de- 
prive equity  of  jurisdiction,  where  sev- 
eral years  might  elapse  before  a  final 
determination  of  the  question,  pending 
which  observance  of  the  statute,  if  finally 
found  to  be  invalid,  would  result  in  tak- 
ing its  property  without  due  process  of 
law,  with  no  possibility  of  its  recovery. 
Ex  parte  Young,  209  U.  S.  123,  52  L. 
Ed.  714,  28   S.   Ct.  441. 

The  question  of  the  validity,  under  the 
provision  of  the  federal  constitution  for- 
bidding the  taking  of  property  without 
due  process  of  law,  of  a  state  statute 
establishing  rates  for  railroad  transporta- 
tion which  are  alleged  to  be  so  low  as 
to  be  confiscatory,  is  not,  because  of  its 
complication,  a  proper  one  for  investi- 
gation by  a  jury.  Ex  parte  Young,  209 
U.    S.   123,   52   L.    Ed.   714,  2S    S.   Ct.   441. 

833-90.  Suits  to  quiet  title. — The 
holder,  through  a  patent  from  the  United 
States,  of  the  legal  title  to  a  lode  min- 
ing claim,  in  possession,  may  maintain 
a  suit  in  equity,  in  a  federal  circuit  court 
sitting  in  Utah,  without  a  prior  adjudi- 
cation in  an  action  at  law  of  its  legal 
title,  to  quiet  title  and  to  restrain  defend- 
ants from  further  mining  or  removing 
ore  from  beneath  the  surface  of  suclv 
claim,  in  view  of  the  provisions  of  Rev. 
St.  Utah,  §  3511,  that  an  action  may  be 
brought  by  any  person  against  another 
who  claims  an  estate  or  interest  in  real 
property  adverse  to  him,  for  the  purpose 
of  determining  such  adverse  claim.  Judg- 
ment, United  States  Min.  Co.  v.  Law- 
son  (1904)  134  F.  769,  67  C.  C.  A.  587, 
affirmed.  Lawson  v.  United  States  Min. 
Co.,  207  U.  S.  1,  52  L.  Ed.  65.  28  S.  Ct.  15. 

839-17.  Power  to  decree  conveyance 
of  land  in  another  state. — Fall  :■.  Eastin, 
215   U.    S.    1,   54   L.    Ed.   65.   30   S.    Ct.   3. 

839-18.  Decree  and  conveyance  there- 
under except  by  holder  of  title  inop- 
erative beyond  the  jurisdiction. — A  deed 
to  land  situated  in  Nebraska,  made  by 
a  commissioner  under  a  decree  of  the 
court  of  another  state  in  an  action  of 
divorce,  in  which,  in  determining  the  equi- 
ties of  the  parties,  conformably  to  the 
practice  in  that  state,  the  land  was  set 
apart    to    the    wife    as    her    own    separate 


property,  need  not  be  recognized  in  Ne- 
braska, under  the  full  faith  and  credit 
clause  of  the  federal  constitution.  Fall 
r.  Eastin,  215  U.  S.  1,  54  L.  Ed.  65,  30 
S.   Ct.  3. 

852-95.  Grant  of  other  relief  than  that 
particularly  prayed  for. — The  United 
States,  seeking  to  follow  the  illicit  gams 
of  its  agent  into  the  property  or  securi- 
ties into  which  they  have  gone,  is  en- 
titled, under  a  prayer  for  "other,  further, 
and  general  relief,"  to  a  judgment,  as  for 
money  had  and  received  for  its  use,  for 
any  difference  between  the  cost  of  the 
specific  property  recovered  and  the  gains 
which  it  is  unable  to  trace.  Decree 
(1909)  172  F.  1,  96  C.  C.  A.  587,  affirmed. 
United  States  v.  Carter,  217  U.  S.  286,  54 
L.  Ed.  769,  30  S.  Ct.  515. 

857-14.  Supplemental  bill. — Permitting 
the  filing  of  a  supplemental  bill  after  the 
case  has  been  remanded  by  an  appellate 
court  for  the  production  of  further  evi- 
dence can  not  be  deemed  an  abuse  of 
the  trial  court's  discretion,  where  the 
facts  set  forth  in  such  bill  grew  out  of 
and  were  connected  with  the  same  trans- 
action out  of  which  the  litigation  arose, 
and  were  germane  to  the  object  of  the 
suit,  and  where  all  the  grounds  of  relief, 
even  if  not  existing  when  the  original 
bill  was  filed,  were  alleged  to  exist  when 
the  supplemental  bill  was  tendered,  es- 
pecially in  view  of  the  provisions  of  N. 
M.  Code  Civ.  Proc.  subsec.  87,  that  a  party 
may  be  allowed,  on  motion,  to  make  a 
supplemental  complaint,  answer,  or  reply 
alleging  facts  material  to  the  cause,  or 
praying  for  any  other  or  diflferent  relief, 
order,  or  judgment.  Rio  Grande,  etc., 
Irrig.  Co.  v.  United  States,  215  U.  S.  266, 
54  t.  Ed.  190,  30  S.  Ct.  97. 

Defendants  are  chargeable  with  notice 
of  an  application  to  file  a  supplemental 
bill,  where  such  bill  was  tendered  when  the 
court  was  open,  leave  to  file  was  given  in 
open  court,  and  defendants'  attorney  was 
served  with  a  copy  on  the  day  it  was 
tendered  and  filed.  Decree,  United  States 
V.  Rio  Grande  Dam  &  Irrigation  Co. 
(1906)  85  P.  393,  13  N.  M.  386,  affirmed. 
Rio  Grande,  etc.,  Irrig.  Co.  v.  United 
States,  215  U.  S.  266,  54  L.  Ed.  190,  30 
S.    Ct.    97. 


551 


902 


ESTATES  OF  DECEDENTS. 


Vol.  V. 


EQUITY  OF  REDEMPTION.— See  ante,  Chattel  Mortgages,  p.  230; 
post,  ^Mortgages  and  Deeds  of  Trust. 

EQUIVALENTS.— See  post.  Patents. 

ERROR,  WRIT  OF. — See  ante,  Appeal  and  Error,  p.  34. 

ESCAPE. — See  the  title  Escape,  vol.  5,  p.  893,  and  references  there  given. 

ESCHEAT. — As  to  escheat  of  bank  deposits,  see  ante.  Due  Process  oe  Law. 

ESCROW. — See  the  title  Escrow,  vol.  5,  p.  900.  See,  also,  ante.  Conditions, 
p.  248 ;  Contracts,  p.  373  ;  post,  Vendor  and  Purchaser.  As  to  preference 
of  securities  deposited  in  bank  and  marked  escrow,  see  ante.  Bankruptcy,  p. 
168. 

ESPECIAL  PRIVILEGES.— See  note  a. 

ESTATE. — See  ante.  Descent  and  Distribution,  p.  463 ;  post.  Executors 
and  Administrators  ;  Wills.    As  to  community  estate,  see  post,  Husband  and 

WiEE. 

ESTATES. — See  the  title  Estates,  vol.  5,  p.  904,  and  references  there  given. 
ESTATES  OF  ABSENTEES. — See  post,  Executors  and  Administrators. 
ESTATES  OF  DECEDENTS. — See  post.  Executors  and  Administrators. 


902-a.  Especial  privileges. — A  contract 
giving  perpetual  succession  to  a  corpora- 
tion and  endowing  it  with  a  perpetual 
exemption  from  taxation  as  to  all  its 
property,  real  or  personal,  is  an  especial 
privilege.  The  agreement  of  the  incor- 
porators to  establish  and  maintain  an  in- 
stitution of  learning  would  not  take  it  out 
of  a  prohibition  against  granting  especial 
privileges,  and  render  it  an  equivalent  for 
the  contract  obligations  assumed.  It 
cannot  be  seen  how  any  other  conclusion 
can  be  reached,  in  view  of  the  fact  that 
the  very  essence  of  such  a  contract  is  to 
endow  the  corporation  as  to  its  property 
forever  with  the  privilege  of  being  ex- 
empt from  the  operation  and  control  of 
the  essential  governmental  power  of  taxa- 
tion and  thereafter  to  cause  the  corpora- 
tion  and   all   its  property,   so   far  as   that 


subject  is  concerned,  to  live  under  the 
law  of  the  contract  and  not  under  the 
law  of  general  taxation.  Berryman  v. 
Board,  222  U.  S.  334,  351,  56  L.  Ed.  225. 
32  S.  Ct.  147.  See  ante,  CONSTITU- 
TIONAL LAW,  p..  264. 

The  generic  prohibition  against  grant- 
ing of  especial  privileges,  in  the  Washing- 
ton Organic  Act  of  ]\Iarch  2,  1867,  can  not 
be  construed  as  intended  to  forbid  merely 
the  creation  of  such  privileges  as  a  legis- 
lative grant  of  an  exclusive  right  to  fer- 
ries, bridges,  etc.,  even  if  it  be  conceded 
that  such  grants  were  a  common  form  of 
territorial  legislative  abuse  prior  to  the 
adoption  of  that  statute,  and  were  the 
generating  cause  of  the  insertion  of  this 
prohibition.  Berryman  r.  Board,  222  L^. 
S.  334,  56  L.  Ed.  225,  32  S.  Ct.  147. 


553 


Vol.  V.  ESTOPPEL. 


ESTOPPEL 

I.  Definition  and  General  Considerations,  554. 

C.  Application,  Operation  and  Effect,  554. 

1.  Parties  for  and  against  Whom  Estoppel  Arises,  554. 

a.  Rule  as  to  Alutuality  or  Reciprocality,  554. 

II.  Estoppel  by  Record,  554. 

B.  Legislative  Records,  554. 

C.  Judicial  Records,  Judgments  and  Decrees,  554. 

m.  Estoppel  by  Deed,   554. 

C.  Operation  and  Effect,  554. 

3.  Estoppel  by  Recitals  and  Averments,  554. 
c.  Character  of  Deed,  554. 

(1)  Bonds,  554. 
5.  Matters  Precluded,  554. 

g.  Official  and  Judicial  Bonds,  554. 

IV.  Equitable  Estoppel  or  Estoppel  in  Pais,  554. 

C.  \'ital  or  Primary  Principle  of  Doctrine,   554. 

D.  Elements,  554. 

3.  Fraudulent  Purpose  or  Intent  to  Mislead,  554. 

4.  Knowledge  of  Facts  or  Gross  Negligence,  554. 

b.  Person  Alleging  Estoppel,  554. 

c.  Parties  Having    Equal   Knowledge    of  or    Equal  Means    of 

Knowledge  of  the  Fact,  554. 

5.  Reliance  by  Party  Alleging  Estoppel,  Act  Done  or  Omitted,  Change 

of  Position,  555. 

6.  Prejudice  to   Party  Claiming  Benefit  of  Estoppel,   555. 

E.  Grovmds  of  Estoppel,  555. 

5.  Failure  to  Assert  Title,  Claim  or  Right,  555. 
a.  To  Real  Estate,  555. 

(2)  Permitting  Sale  or  Expenditure,  555. 

(a)  In  General,  555. 

(b)  Permitting   Erection   of    Improvements,    555. 

bb.    Inducing    Belief    That    Compensation    Will    Be 
Accepted,  555. 
(bb)   Public  Works,   555. 
bbb.  By  Railroads,   555. 
16.  Taking  Benefits,  555. 

-a.  Accepting   Benefits  of   Transaction  or   Proceeding,   555. 

(1)  In  General,  555. 

(2)  Contracts,  555. 

20.  Inconsistent  Acts,   Conduct  and   Positions,   556. 

a.  In   General,   556. 

b.  Inconsistent  Positions  in  Judicial  Proceedings,  556. 

21.  Tax  Returns,  557. 

F.  Operation  and  Effect,  557. 

2.  Parties  for  and  against  Whom  Available,  557. 

d.  Corporations,   557. 

(2)   Municipal   Corporations,   Counties,  etc.,    557. 

e.  Government,   557. 

553 


918-944  ESTOPPEL.  Vol.  V. 

CROSS  REFERENCES. 

See  the  title  Estoppel,  vol.  5,  p.  913,  and  references  there  given. 

In  addition,  see  post,  Laches;  Municipal  Corporations;  Res  Adjudicata. 

I.  Definition  and  General  Considerations. 

C.  Application,  Operation  and  Effect — 1.  Parties  for  and  against  Whom 
Estoppel  Arises — a.  Rule  as  to  Mutuality  or  Reciprocality. — Estoppel  to  be 
good  must  be  mutual. ^*^^ 

II.  Estoppel  by  Record. 

B.  Legislative  Records. — See  note  28. 

C.  Judicial  Records,  Judgments  and  Decrees. — See  post,  Res  Ad- 
judicata. 

III.  Estoppel  by  Deed. 

C.  Operation  and  Effect — 3.  Estoppel  by  Recitals  and  Averments — c. 
Character  of  Deed — (1)  Bonds. — See  note  53. 

Recitals  in  Municipal  Bonds. — See  post.  Municipal,  County,  State  and 
Federal  Securities. 

5.  Matters  Precluded — g.  Official  and  Judicial  Bonds. — See  post,  "Con- 
tracts," IV,  E,  16,  a,  (2). 

IV.   Equitable  Estoppel  or  Estoppel  in  Pais. 

C.  Vital  or  Primary  Principle  of  Doctrine. — The  principle  of  estoppel  is 
well  settled.  It  precludes  a  person  from  denying  what  he  has  said  or  the  impli- 
cation from  his  silence  or  conduct  upon  which  another  has  acted. ^^^ 

D.  Elements — 3.  Fraudulent  Purpose  or  Inte^nt  to  Mislead. — There  must, 
however,  be  some  intended  deception  in  the  conduct  or  declarations,  or  such  gross 
negligence  as  to  amount  to  constructive  fraud.^^^ 

4.  Knowledge  oe  Facts  or  Gross  Negligence — b.  Person  Alleging  Estop- 
pel.— In  respect  to  the  title  to  real  property  the  party  claiming  to  have  been  in- 
fluenced by  the  conduct  or  declarations  must  have  not  only  been  destitute  of 
knowledge  of  the  true  state  of  the  title,  but  also  of  any  convenient  and  available 
means  of  acquiring  knowledge.^'"'' 

c.  Parties  Having  Equal  Knozvledge  of  or  Equal  Means  of  Knowledge  of  the 
Fact. — See  note  49. 

918-lOa.      Mutuality. — Bigelow     v.     Old  944-46a.       Person     alleging     estoppel. — 

Dominion,    etc.,    Min.    Co.,   225    U.    S.    Ill,  Crary   v.    Dye,   208    U.    S.    515,    521,    52    L. 

121,   56   L.    Ed.   1009,   32   S.   Ct.   641.  Ed.    595,    28    S.    Ct.    360,    following    Brant 

920-28.    "In    Kinkead   v.    United    States,  v.   Virginia   Coal,   etc.,   Co.,   93   U.    S.   326, 

150  U.  S.  483,  497,  37  L.  Ed.  1152,  1157,  14  23   L.    Ed.   927. 

S.    Ct.    172,    177,    the    court    said    it    was  944-49.     Knowledge  or  means  of  knowl- 

well    settled    'that    a    mere    recital    in    an  edge    equal. — Crary    z'.     Dye,    208     U.    S. 

act,  whether  of  fact  or  of  law,  is  not  con-  515,    521,    52    L.    Ed.    595,    28    S.    Ct.    360, 

elusive   unless   it  be   clear  that  the   legis-  following  Brant  v.  Virginia  Coal,  etc.,  Co., 

lature   intended  that  the  recital  should  be  93   U.   S.  326,  23   L.   Ed.  927. 

accepted   as   a   fact   in   the   case.'  "      Black-  Declarations    by    the    judgment    debtor 

lock  V.  United  States,  208  U.   S.  75,  52  L.  subsequent    to    a   judicial    sale    of    his    in- 

Ed.  396,  28  S.  Ct.  228,  232.  terest  in  a  mining  claim,  showing  his  ac- 

923-53.     Bonds. — Hine  v.  Morse,  218  U.  quiescence    in    such    sale,    will    not    estop 

S.  493,  54  L.   Ed.   1123,  31   S.  Ct.  37.      See  him      from    thereafter    asserting    the    in- 

post.  "Contracts,"  IV,  E,  16,  a,  (2).  validity   of   such    sale   as   against   persons 

938-19a.      Principle    of   doctrine. — Crary  who  leased  the  property  from  the  sheriff 

V.    Dye,   208    U.    S.   515,    52    L.    Ed.   595,   28  with    an    option    to    purchase,    who    had 

S.   Ct.  360.  equal   means  of  information  as  to   the  in- 

940-38a.       Fraudulent      purpose. — Crary  validity  of  the  sale,  and  whose  action   in 

V.    Dye,   208   U.   S.    515,   52   L.    Ed.    595,   28  closing   their   option   was   not   induced    by 

S.   Ct.   360,   citing   Brant  v.   Virginia   Coal,  such     declarations.        judgment,     Dye     v. 

etc.,  Co.,  93  U.  S.  326,  23  L.  Ed.  927.  and  Crary    (N.    M.  1906),    85  P.    1038,  9  L.    R. 

Hobbs   V.   McLean,   117   U.    S.    567,   29    L.  A.   (N.  S.)    1136,  affirmed.     Crary  v.  Dye, 

Ed.  940,  6  S.   Ct.  870.  208  U.  S.  515,  52  L.   Ed.    595,  28   S.  Ct.  360. 

554 


Vol.  V. 


ESTOPPEL. 


945-977 


5.  Reliance  by  Party  Alleging  Estoppel,  Act  Done  or  Omitted,  Change 
OF  Position. — The  party  making  an  estoppel  must  in  fact  act  in  reliance  upon 
the  acts  or  declarations  of  the  person  against  whom  the  estoppel  is  invoked. ^^* 

6.  Prejudice  to  Party  Claiming  Benefit  of  Estoppel. — The  person  al- 
leging an  estoppel  must  have  been  misled  to  his  detriment  by  the  acts  or  declara- 
tions of  the  person  against  whom  the  estoppel  is  invoked.^"'' 

E.  Grounds  of  Estoppel — 5.  Failure  to  Assert  Title,  Claim  or  Right 
— a.  To  Real  Estate— {2)  Pennitthig  Sale  or  Expenditure — (a)  In  General. — 
See  note  87. 

(b)  Permitting  Erection  of  Improvements — bb.  Inducing  Belief  That  Com- 
pensation Will  Be  Accepted — (bb)  Public  Works — bbb.  By  Railroads. — See 
note  96. 

16.  Taking  Benefits — a.  Accepting  Benefits  of  Transaction  or  Proceeding — 
(1)  In  General. — Condemnation  Proceedings. — The  owner  of  land  taken  in 
condemnation  proceedings  for  a  part  of  his  property  by  accepting  the  sum 
awarded  for  the  land  actually  taken  waives  the  right  to  insist  that  the  petition 
was  not  maintainable,  as  the  statute  required  the  condemnation  of  his  entire 
property.  He  can  not  ratify  the  condemnation  by  receiving  the  appraised  value 
■of  the  land  condemned  and  then  ask  to  have  the  condemnation  set  aside  and  an- 
nulled.*^-^ 

(2)  Contracts. — Bonds,  Official  and  Judicial. — See  note  66. 


945-51a.  Reliance  by  party  alleging  es- 
toppel.—Crary  v.  Dye,  208  U.  S.  515,  525, 
52    L.    Ed.    595.   28    S.    Ct.    360. 

946-57a.  Prejudice  to  party  invoking. 
—Crary  v.  Dye,  208  U.  S.  515,  525,  52 
L.  Ed.  595,  28  S.  Ct.  360.  See  ante, 
"Parties  Having  Equal  Knowledge  of  or 
Equal  Means  of  Knowledge  of  the  Fact," 
IV,  D,  4,  c. 

955-87.  Hussey  v.  United  States,  222  U. 
S.   88,   56   L.   Ed.  106,  32  S.   Ct.  33. 

Sale  of  widow's  community  by  execu- 
tor of  husband's  will. — See  post,  EXEC- 
UTORS AND  ADMINISTRATORS. 

960-96.  By  railroads. — If  a  landowner, 
knowing  that  a  railroad  company  has 
entered  upon  his  land  and  is  engaged  in 
constructing  its  road  without  having 
complied  with  the  statute  requiring  either 
payment  by  agreement  or  proceedings  to 
condemn,  remains  inactive  and  permits 
it  to  go  on  and  expend  large  sums  in  the 
work,  he  is  estopped  from  maintaining 
either  trespass  or  ejectment  for  the  en- 
try, and  will  be  regarded  as  having  ac- 
quiesced therein,  and  will  be  restricted  to 
a  suit  for  damages.  Donohue  v.  El  Paso, 
etc.,  R.  Co.,  214  U.  S.  499,  53  L.  Ed.  1060, 
29   S.   Ct.   698. 

975-62a.  Condemnation  proceedings. — 
Winslow  z'.  Baltimore,  etc.,  R.  Co.,  208 
U.  S.  59,  52  L.  Ed.  388,  28  S.  Ct.  190. 

977-66.  Bond  of  trustee  to  sell  infant's 
estate. — The  validity  of  a  decree  for  the 
sale  of  an  infant's  real  estate  for  pur- 
poses of  reinvestment,  and  of  the  order 
appointing  a  trustee  to  make  the  sale, 
and  of  the  bond  reciting  the  due  ap- 
pointment of  such  trustee,  executed  to 
secure  the  faithful  discharge  by  him  of 
Jiis  duties,  is  not  open  to  question  by  one 


who  voluntarily  became  a  surety  upon 
the  bond,  thereby  enabling  his  principal 
to  obtain  the  proceeds  of  the  sale.  Hine 
z:  Morse,  218  U.  S.  493,  54  L.  Ed.  1123. 
31  S.  Ct.  37,  reversing  judgment,  31  App. 
D.    C.   433. 

Having  obtained  the  trust  and  confi- 
dence of  the  court  by  aid  of  the  security 
afforded  by  the  solemn  obligation  to 
faithfully  execute  the  order  of  the  court 
and  to  pay  into  the  court  the  proceeds 
of  the  sale  which  he  undertook  to  make, 
neither  the  trustee  so  appointed,  nor  the 
surety  for  his  performance  of  the  trust, 
are  in  a  situation  to  deny  the  regularity 
of  the  transaction.  The  proceeds  which 
the  principal  of  the  bond  received  are  nei- 
ther the  funds  of  the  beneficial  owners 
of  the  property,  or,  if  the  sale  be  in  fact 
void  so  far  as  to  confer  no  title,  the  pur- 
chaser in  equity  and  justice  must  be 
protected  before  the  money  is  disturbed. 
The  benefit  which  the  principal  expected 
to  secure,  he  has  been  enabled  to  enjoy 
through  the  voluntary  execution  of  his 
bond  by  his  surety.  The  bond  recites 
his  due  appointment,  and  it  would  be 
inequitable  and  unjust  to  permit  either 
the  principal  or  his  surety  to  deny  the 
fact.  Hine  v.  Morse,  218  U.  S.  493,  510, 
54   L.   Ed.   1123,  31   S.   Ct.  37. 

Bond  of  Indian  agent. — "This  rule  of 
estoppel  has  been  applied  in  many  cases. 
It  was  applied  in  respect  to  the  bond  of 
an  Indian  agent.  The  surety  upon  the 
bond  denied  liability  because  the  govern- 
ment did  not  produce  the  commission 
showing  the  appointment  of  his  princi- 
pal. The  court  said:  'The  bond  upon 
which  the  suit  was  brought  recites  that 
he   was    appointed    Indian    agent   and    the 


555 


987-996 


ESTOPPEL. 


Vol.  V. 


20.  Inconsistent  Acts,  Conduct  and  Positions — a.  In  General. — See 
note  10. 

b.    Inconsistent  Positions  in  ludicial  Proceedings. — See  note  60. 

As  to  Whether  Defense  Involved  in  Action. — A  plaintiff  is  estopped  to 
urge  that  a  defense  which  was  excluded  upon  his  objection  was  involved  in  the 
action  and  concluded  by  the  judgment.*^^'^ 


obligors  in  the  bond  are  therefore  es- 
topped from  denying  it.'  Bruce  v.  United 
States,  17  How.  437,  442,  15  L.  Ed.  129." 
Hine  v.  Morse,  218  U.  S-  493,  510,  54  L. 
Ed.   1123,  31   S.   Ct.   37. 

Distiller's  bond. — "The  principal  was 
applied  to  a  distiller's  bond  where  one 
of  the  defenses  was  that  the  bond  was 
invalid.  The  court  said:  'But  we  prefer 
to  place  our  judgment  upon  the  broader 
ground  marked  out  by  the  adjudications 
of  this  court,  to  which  we  have  referred. 
Every  one  is  presumed  to  know  the  law. 
Ignorance  standing  alone  can  never  be 
the  basis  of  legal  right.  If  a  bond  is  lia- 
ble to  the  objection  taken  in  this  case 
and  the  parties  are  dissatisfied,  the  ob- 
jection should  be  made  when  the  bond  is 
presented  for  execution.  If  executed  un- 
der constraint,  the  constraint  will  destroy 
it.  But  where  it  is  voluntarily  entered 
into  and  the  principal  enjoys  the  bene- 
fits which  it  is  intended  to  secure  and  a 
breach  occurs,  it  is  then  too  late  to  raise 
the  question  of  its  validity.  The  parties 
are  estopped  from  availing  themselves  of 
such  a  defense.  In  such  cases  there  is 
neither  injustice  nor  hardship  in  holding 
that  the  contract  as  made  is  the  measure 
of  the  rights  of  the  government  and  of 
the  liability  of  the  obligors.' "  United 
States  V.  Hodson,  10  Wall.  395,  409,  19 
L.  Ed.  937;  Hine  v.  Morse,  218  U.  S.  493, 
510,  54  L.  Ed.  1123,  31  S.  Ct.  37. 

Stay  bond. — "It  was  applied  in  respect 
of  a  stay  bond  executed  under  a  void  act 
of  legislation.  'Not  to  apply  the  prin- 
ciple of  estoppel  to  the  bond  in  this  case 
would.'  said  the  court,  'it  seems  to  us, 
involve  a  mockery  in  judicial  adminis- 
tration and  a  violation  of  the  plainest 
principles  of  reason  and  justice.'  Dan- 
iels V.  Tearney,  102  U.  S.  415,  422.  26 
L.  Ed.  187."  Hine  r.  Morse,  218  U.  S. 
493,    511,    54    L.    Ed.    1123.    31    S.    Ct.    37. 

Applications  by  state  courts. — "The 
opinions  of  the  highest  courts  of  the 
states  are  full  of  applications  of  the  rule 
of  estoppel.  In  Plowman  v.  Henderson, 
59  Alabama,  559,  the  sureties  upon  the 
bond  of  an  administrator  were  not  per- 
mitted to  show  the  illegality  of  his  ap- 
pointment. To  the  same  effect  is  White 
T'.  Weatherbee,  126  Massachusetts,  450. 
The  sureties  upon  the  bond  of  a  sheriff 
were  held  estopped  to  deny  validity  of 
his  appointment  or  the  regularity  of  his 
bond.  Jones  z'.  Gallatin  County.  78  Ken- 
tucky, 491.  In  People  v.  Norton,  9  N.  Y. 
176,    the    sureties    upon    the    bond    of    a 


trustee  appointed  by  a  chancery  court 
were  held  estopped  to  deny  the  validity 
of  the  order  appointing  him.  In  State  i\ 
Anderson,  16  Lea  (Tenn.),  321,  335,  and 
United  States  v.  Mauric,  2  Brock,  96,  the 
rule  is  recognized  and  applied."  Hine  t'. 
Morse,  218  U.  S.  493,  511,  54  L.  Ed.  1123, 
31    S.    Ct.   37. 

987-10.  Inconsistent  conduct  of  city  of- 
ficial as  to  city's  tide  lands. — The  fact 
that  the  mayor  of  a  city,  as  a  member  of 
the  state  board  of  tide  land  commission- 
ers, participated  in  a  survey  by  which 
certain  lands  were  excluded  from  the 
city,  and  that  the  city  by  ordinances  ap- 
proved the  survey  and  maps  in  accord- 
ance therewith,  all  such  acts  being  prior 
to  a  confirmation  of  the  city's  title  to 
the  land,  did  not  estop  the  city  from 
claiming  the  Tand.  Judgment,  United 
Land  Ass'n  z\  Pacific  Imp.  Co.  (1902)  69 
P.  1064,  139  Cal.  370,  afiirmed.  United 
Land  Ass'n  r.  Abrahams,  208  U.  S.  614, 
52   L.   Ed.   645,  28   S.   Ct.   569. 

996-60.  As  to  equitable  or  legal  charac- 
ter of  claims. — Plaintiffs  in  an  action  at 
law,  who  were  the  defendants  in  an  eq- 
uity cause  involving  the  same  subject 
matter,  having  as  defense  to  that  cause 
insisted  that  the  defenses  were  not  cog- 
nizable in  equity,  and  prevailed  in  such' 
contention,  are  in  conscience  placed  in 
a  position  where  they  can  not  by  a  change 
of  attitude  assert  in  the  action  of  law  that 
the  claim  of  the  complainants  in  the  eq- 
uity cause  when  set  up  as  a  defense  to 
the  action  at  law  is  equitable  in  nature 
and  thus  deprive  the  defendants  of  aU 
means  of  defense  in  the  action  at  law. 
Lutcher,  etc..  Lumber  Co.  z'.  Knight,  217 
U.    S.    257,    54   L.    Ed.   757,    30    S.    Ct.    505. 

Federal  government. — The  federal  gov- 
ernment is  not  estopped  to  rely  upon  the 
five  years'  limitation  prescribed  by  the 
Act  of  March  3,  1891  (26  Stat,  at  L. 
1095-1102,  chap.  561,  U.  S.  Comp.  Stat. 
1901,  pp.  1535,  1571),  for  constructing  an 
irrigation  canal  or  reservoir,  by  obtain- 
ing an  injunction  interfering  with  such 
construction,  where,  between  the  disso- 
lution of  the  preliminary  injunction  and 
the  granting  of  the  perpetual  injunction, 
more  than  five  years  elapsed,  during 
which  the  construction  was  not  impeded 
or  hindered.  Rio  Grande,  etc..  Irrig.  Co. 
V.  United  States.  215  L"^.  S.  266.  54  L.  Ed. 
190.    30    S.    Ct.    97. 

996-60a.  As  to  whether  defense  in- 
volved in  action. — Kirven  v.  Virginia- 
Carolina    Chemical    Co.     (1907)     58    S.    E. 


556 


Vol.  V. 


EVERY. 


996-1003 


21.  Tax  Returns. — The  owners  of  real  property  are  not  estopped  by  their  tax 
returns  under  oath,  valuing  such  property  at  less  than  $5,CXX),  from  asserting 
that  such  property  has  that  value,  in  order  to  sustain  the  jurisdiction  of  the  Fed- 
eral Supreme  Court  of  a  writ  of  error  to  review  a  judgment  of  the  Hawaiian 
supreme  court  in  an  action  of  ejectment.*''^'' 

F.  Operation  and  Effect — 2.  Parties  for  and  against  \\'hom  Available 
— d.  Corporations — (2)  Municipal  Corporations,  Counties,  etc. — The  principles 
of  right  and  justice,  upon  which  the  doctrine  of  estoppel  in  pais  rest,  are  applica- 
ble to  municipal  corporations."-^''  Any  positive  acts  (infra  vires  )  by  municipal 
officers,  which  may  have  induced  the  action  of  the  adverse  party  and  where  it 
would  be  inequitable  to  permit  the  corporation  to  stultify  itself,  by  retracting 
what  its  officers  had  done,  will  work  an  estoppel."^*^ 

e.  Government. — See  ante,  "Inconsistent  Positions  in  Judicial  Proceedings," 
IV,  E,  20,  b. 


ESTOPPEL  BY  RECORD.— See  ante.  Estoppel,  p.  553. 
ESTOPPEL  IN  PAIS.— See  ante.  Estoppel,  p.  hSi. 
EVERY.— See  note  1. 


424,  77  S.  C.  493,  affirmed.  Virginia- 
Carolina,  etc.,  Co.  V.  Kirven,  215  U.  S. 
252,   54   L.   Ed.   179,  30   S.    Ct.   78. 

996-60b.  Tax  returns.— Spreckles  v. 
Brown.  212  U.  S.  208,  53  L.  Ed.  476,  29 
S.  Ct.  256. 

As  to  the  value  of  the  land  in  dispute,  it 
sufficiently  appears  by  affidavits  in  the 
record  and  in  the  court,  in  which  also 
there  is  an  attempt  to  explain  the  low  val- 
uation in  the  tax  returns.  Red  River 
Cattle  Co.  V.  Xeedham,  137  U.  S.  632,  635, 
636,  34  L.  Ed.  799-801,  11  S.  Ct.  208.  The 
tax  returns,  in  any  event,  are  not  conclu- 
sive. Wilcox  V.  Consolidated  Gas  Co. 
(Jan.  4,  1909)  [212  U.  S.  19,  53  L.  Ed.  382, 
29  S.  Gt.  192].  Spreckles  v.  Brown,  212  U. 
S.  208,  53  L.  Ed.  476,  478,  29  S.  Ct.  256. 

1000-73a.  Municipal  corporations. — 
Beadles  f.  Sniyser.  209  U.  S.  393,  52  L. 
Ed.  849,  28  S.  Ct.  522;  Louisville  v.  Cum- 
berland, etc..  Tel.  Co.,  224  U.  S.  649,  56 
L.    Ed.    934,    32    S.    Ct.    572. 

Inconsistent  acts  as  to  title  to  tide 
lands. — See  ante,  "Inconsistent  Acts,  Con- 
duct and  Positions,"  IV,  E,  20. 

Estoppel  to  deny  transferability  of 
street  franchise. — Louisville  z'.  Cumber- 
land, etc.,  Tel.  Co.,  224  U.  S.  649,  56  L. 
Ed.   934,  32   S.   Ct.    572. 

1000-73b.  Beadles  v.  Smyser,  209  U.  S. 
393.    52    L.    Ed.    849,   28    S.    Ct.    522. 

A  municipality  can  not  assert  the  dor- 
mancy, under  2  Wilson's  Okla.  Stat. 
1903,  §  4635,  of  certain  judgments  against 
it  for  failure  to  issue  execution  thereon 
within  five  years,  where,  during  most  of 
that  period,  the  municipality  was  carrying 
out  its  contract  arrangement  with  its  judg- 
ment creditors  to  pay  such  judgments  in 
the  order  of  their  rendition,  out  of  the 
judgment  fund,  the  effect  of  which  was 
to    prevent    the    judgment  creditors    from 


taking  such  steps  as  the  law  permitted  to 
collect  their  judgments  by  execution  or 
mandamus.  Beadles  v.  Smyser,  209  U.  S. 
393,  52  L.  Ed.  849,  28  S.  Ct.  522. 

"The  principles  of  natural  justice  and 
fair  dealing  are  alike  applicable  to  mu- 
nicipal corporations  as  to  individuals,  and 
to  permit  the  city  to  escape  the  payment 
of  judgments  whose  validity  is  not  other- 
wise questioned,  for  failure  to  issue  exe- 
cution or  sue  out  a  writ  of  mandamus 
during  the  time  when  the  action  of  the 
city  officers  was  such  as  to  prevent  the 
exercise  of  the  right,  would  be  to  permit 
the  action  of  the  representatives  of  the 
city,  who  have  had  the  benefit  of  the 
contract  during  the  time  both  parties 
were  observing  its  obligations,  to  work 
a  gross  injustice  upon  the  creditors  hold- 
ing valid  judgments  against  the  munici- 
pality." Beadles  v.  Smyser,  209  U.  S. 
393,    52    L.    Ed.    849,    28    S.    Ct.    522. 

1003-1.  Every  person. — "Words  having 
universal  scope,  such  as  'every  contract 
in  restraint  of  trade,'  'every  person  who 
shall  monopolize,'  etc.,  in  the  Anti-Trust 
Act  of  July  2,  1890,  will  be  taken  as  a  mat- 
ter of  course  to  mean  only  every  one  sub- 
ject to  such  legislation,  not  all  that  the 
legislator  subsequently  may  be  able  to 
catch.  In  the  case  of  the  present  statute 
the  improbability  of  the  United  States  at- 
tempting to  make  acts  done  in  Panama  or 
Costa  Rica  criminal  is  obvious,  yet  the 
law  begins  by  making  criminal  the  acts 
for  which  it  gives  a  right  to  sue.  We 
think  it  entirely  plain  that  what  the  de- 
fendant did  in  Panama  or  Costa  Rica  is 
not  within  the  scope  of  the  statute  so  far 
as  the  present  suit  is  concerned."  Ameri- 
can Banana  Co.  i'.  United  Fruit  Co.«  213 
U.  S.  347,  357,  53  L.  Ed.  826,  29  S.  Ct.  511. 
See  post,  MONOPOLIES  AND  CORPO- 
RATE TRUSTS. 


557 


1011-1055  EXCEPTIONS  AND  OBJECTIONS.  Vol.  V. 


EVIDENCE. 

III.  Relevancy,  Competency  and  Admissibility,  558. 

A.  The  General  Principles  Stated,  558. 

1.  In  General,  558. 
G.  Motive  and  Intent,  558. 

V.  Withdrawing  and  Striking  Out  Evidence,  558. 

B.  Striking  Out  Evidence,  558. 

CROSS  REFERENCES. 

See  the  title  Evidence,  vol.  5,  p.  1004,  and  references  there  given. 

In  addition,  see  ante,  Conspiracy,  p.  256;  Constitutional  Law,  p.  264; 
Criminal  Law,  p.  434;  Damages,  p.  434;  Documentary  Evidence,  p.  469; 
post,  Expert  and  Opinion  Evidence;  Fraud  and  Deceit;  Judicial  Notice; 
Libel  and  Slander;  Mines  and  Minerals;  Parol  Evidence;  Perjury;  Pub- 
lic Lands;  Res  Adjudicata;  Wills. 

As  to  cure  of  error  in  trial  by  the  subsequent  introduction  of  evidence,  see  post. 
Trial. 

in.  Relevancy,  Competency  and  Admissibility. 

A.  The  General  Principles  Stated — 1.  In  General. — Exclusion  of  ma- 
terial evidence  on  behalf  of  the  accused  is  reversible  error,  unless  want  of  preju- 
dice is  shown. ^'^'^ 

G.    Motive  and  Intent. — See  note  36. 

V.  Withdrawing  and  Striking  Out  Evidence. 

B.  Striking  Out  Evidence. — Where  evidence,  inadmissible  without  other 
evidence  explaining  it,  has  been  admitted  under  the  belief  that  the  explanatory- 
evidence  would  also  be  offered,  and  the  explanatory  evidence  is  not  offered,  it 
should  be  struck  out  upon  motion.^^* 

EXAMINATION  OP  WITNESSES.— See  post.  Grand  Jury;    Witnesses. 
EXCEPTIONS  AND  OBJECTIONS.— See  ante,  Appeal  and  Error,  p.  34; 

post.  Exceptions,  Bill  of,  and  Statement  of  Facts  on  Appeal. 

1011-17a.     Exclusion    of    material    evi-  L.    Ed.    465,    29    S.    Ct.    260,    reversing    30 

dence.— Judgment    (1907)    30    App.    D.    C.  App.   D.   C.   1. 

1,    reversed.      Crawford  v.   United    States,  A   letter   from   a  witness,    charging   the 

212    U.    S.    183,   53   L.    Ed.   465,   29    S.    Ct.  accused    with    having    abstracted    certain 

260.     See  ante,  APPEAL  AND  ERROR,  correspondence   from   the    files    of   a   cor- 

p.   34.  poration,  admitted  without  objection,  for 

1033-36.  Motive  and  intent. — Intent  is  the  purpose  of  showing  a  suppression  or 
the  design,  purpose,  resolve,  or  determi-  spoliation  of  evidence,  should  be  struck 
nation  in  the  mind  of  the  accused;  it  can  out  on  motion  upon  the  withdrawal  by 
rarely  be  proved  by  direct  evidence,  but  the  prosecution  of  its  offer  in  evidence  of 
must  be  ascertained  by  means  of  infer-  the  accused's  answer  to  such  letter. 
ences  from  the  facts  and  circumstances  Judgment  (1907)  30  App.  D.  C.  1,  re- 
developed by  the  proof.  Bailey  v.  Ala-  versed.  Crawford  v.  United  States,  212 
bama,  219  U.  S.  219,  55  L.  Ed.  191,  31  S.  U.  S.  183,  53  L.  Ed.  465,  29  S.  Ct.  260. 
Ct.    145.      See,    also,    post,    HOMICIDE.  See,  also,  ante,  DOCUMENTARY  EVI- 

1055-86a.  Striking  out  evidence. — Craw-  DENCE,  p.  469. 
ford   V.   United    States,   212   U.    S.    183,    53 

558 


Vol.  VI.  EXCEPTIONS,  BILL  OF,  ETC.  9-11 


EXCEPTIONS,  BILL  OF,  AND  STATEMENT  OF  FACTS  ON  APPEAL 

III.  Necessity  for  Bill  of  Exceptions  or  Statement  of  Facts,  559. 

A.  Where  the  Errors  Are  Not  Apparent  on  the  Record,  559. 

1.  In  General,  559. 

2.  Illustrative  Cases,  559. 

•  a.  Miscellaneous  Examples,  559. 

e.  Evidence,  560. 

(1)   In  General,  560. 

B.  Where  the  Errors  Are  Apparent  on  the  Record,  560. 

1.  In  General,  560. 
E  Effect  of  Absence  of  Bill  of  Exceptions,  Agreed  Statement  of  Facts  or 
Special  Verdict,  560. 
1.  Affirmance,   560. 

a.  In  General,  560. 

IV.  Form  and  Sufficiency,  560. 

C.  Authentication,  560. 

1.  Signing,  560. 

a.  Of  Bill  of  Exceptions,  560. 

(3)    Manner   of  Signing,   560. 
c.  Of  Statement  of  Facts  on  Appeal,  560. 

V.  Scope  and  Contents  of  Bill,  560. 
A.  In  General,  560. 
E.  The  Evidence,  561. 

5.  How  Much  of  the  Evidence  Should  Be  Incorporated,  561. 

b.  Present  Practice,  561. 

(1)   In  General,  561. 

VI.  Settlement  of  Bill  or  Statement  of  Facts,  561. 
E.  Time  of  Settlement,  561. 

4.  Settlement  during  or  after  the  Term,  561. 
a.  In  General,  561. 

f.  Removal  of  Causes  from  the  District  of  Columbia,  561. 

VIII.  Amendment  or  Contradiction  of  Bill,  561. 
A.  Amendment,  561. 
1.  In  General,  561. 

CROSS  REFERENCES. 

See  the  title  Exceptions,  Bill  of,  and  State:ment  o^  Facts  on  Appe^al,  vol. 
6,  p.  1,  and  references  there  given. 

III.  Necessity  for  Bill  of  Exceptions  or  Statement  of  Facts. 

A.  Where  the  Errors  Are  Not  Apparent  on  the  Record — 1.  In  Gene;rai,. 
— Contentions  which  relate  to  occurrences  at  the  trial  can  not  be  considered  on 
appeal  where  the  record  contains*  no  bill  of  exceptions. ^^'^ 

2.  Illustrative;  Cases — a.  Miscellaneous  Examples. — Rulings. — Rulings  of 
the  court  below  on  apphcation  for  continuances- can  not  be  examined  on  appeal 
unless  a  proper  bill  of  exceptions  is  taken.^s^ 

9-17a.     Necessity — Errors   not   apparent  ll-25a.    Ruling  on  application  for  con- 

of  record. — United  States  v.  United  States  tinuance.— Pickett  v.  United  States,  216 
Fidelity,  etc.,  Co.,  222  U.  S.  283,  284,  56  U.  S.  456,  461,  54  L.  Ed.  566,  30  S.  Ct. 
L.  Ed.  200,  32  S.  Ct.  101.  265. 

559 


14-41 


EXCEPTIONS,  BILL  OF,  ETC. 


Vol.  VI. 


e.  Evidence — (1)  In  General. — See  note  14-48. 

B.  Where  the  Errors    Are    Apparent    on    the    Record— 1.  In  General,. 

a' bill  of  exceptions  is  not  essential  to  a  writ  of  error  from  the  federal  supreme 

court  to  a  district   court,   presenting  the  sole   question  of  the    jurisdiction  of  the 
latter  court,  where  it  can  add  nothing  to  what  is  apparent  on  the  face  on  the  rec- 

F.  Effect  of  Absence  of  Bill  of  Exceptions,  Agreed  Statement  of 
Facts  or  Special  Verdict — 1.  Affirmance — a.  In  General. — See  note  32-48. 

IV.  Form  and  Sufficiency. 

C.  Authentication— 1.  Signing— a.  Of  BUI  of  Exceptions— (3)  Manner  of 

Signing. — See  note  90.  .... 

c.  Of  Statement  of  Facts  on  Appeal. — The  findings  of  a  territorial  district  court, 
having  been  adopted  and  affirmed  by  the  supreme  court  of  the  territory,  serve  the 
purpose  of  the  statement  of  facts  required  by  the  Act  of  April  7,  1874  (18  Stat, 
at  L.  27,  chap.  80),  on  appeal  to  the  federal  supreme  court.^"^ 

V.  Scope  and  Contents  of  Bill. 
A.  In  General. — The  bill  of  exceptions  on  error  to  the  supreme  court  of  the 
territory  of  Hawaii  should   bring  up  only  so   much  of  the    record  as  is  necessary 
to  a   determination  of   the   case  on   appeal.     It   should   not   bring  up   the   entire 


case 


na 


14-48.  Evidence  must  be  placed  on  rec- 
ord by  bill  of  exceptions. — United  States 
V.  United  States  Fidelity,  etc.,  Co.,  222 
U.  S.  283,  284,  56  L.  Ed.  200,  32  S-  Ct. 
101;  Pickett  v.  United  States,  216  U.  S. 
456.  54   L.   Ed.   566,   30   S.   Ct.  265. 

Papers  or  documents  used  at  the  hear- 
ing in  the  court  below  can  not,  in  strict- 
ness, be  examined  on  appeal  or  writ  of 
error  to  the  federal  supreme  court,  un- 
less they  are  made  part  of  the  record  by 
bill  of  exceptions  or  some  other  proper 
mode.  Bassing  v.  Cady,  208  U.  S.  386, 
52    L.    Ed.   540,   28   S.    Ct.   392. 

18-72a.  Errors  apparent  of  record. — 
Grant  Shoe  Co.  v.  Laird  Co.,  212  U.  S. 
445.    53    L.    Ed.    591,    29    S.    Ct.    332. 

32-48.  Rulings  on  award  of  arbitrator. 
—Whether  or  not  the  court  below  erred 
in  holding  the  award  of  the  jury  ap- 
pointed under  Act  June  6,  1900,  c.  809,  31 
Stat.  665,  to  reassess  the  benefits  result- 
ing from  the  extension  of  Eleventh 
Street,  in  the  ^District  of  Columbia,  not 
unreasonable,  nor  so  unjust  as  to  re- 
quire a  new  trial  before  another  jury, 
is  not  open  in  the  federal  supreme  court, 
where  it  has  not  all  the  evidence  before 
it,  and  there  is  no  agreed  statement  of 
facts.  Columbia  Heights,  etc.,  Co.  v.  Ru- 
dolph, 217  U.  S.  547,  54  L.  Ed.  877,  30 
S.   Ct.  587. 

38-90.  Signing  bill  by  initials  of  judge. 
— A  paper  in  the  record  on  writ  of  error, 
styled  "Exceptions  to  the  Charge  to 
Jury,"  initialed  "J.  B.  McP.,  Trial  Judge," 
and  signed  by  the  plaintiff,  is  not  a  bill 
of  exceptions.  United  States  v.  United 
States  Fidelity,  etc.,  Co..  222  U.  S.  283, 
56    L.    Ed.    200,    32    S.    Ct.    101,    affirming 


judgment  (C.  C.  A.)  186  F.  477,  follow- 
mg  Origet  v.  United  States,  125  U.  S. 
240,    31    L.    Ed.    743,    8    S.    Ct.    846. 

39-96a.  Statement  of  facts  on  appeal 
from  territorial  courts. — The  findings  of 
a  district  court  of  a  territory  furnish  a 
sufficient  statement  of  the  facts  for  the 
purposes  of  an  appeal  from  the  territo- 
rial supreme  court,  where  the  latter  court 
made  no  express  findings  of  fact,  but  en- 
tered a  general  judgment  of  affirmance, 
manifestly  based  upon  the  correctness 
of  the  findings  of  the  trial  court.  Mon-. 
tezuma  Canal  Co.  v.  Smithville  Canal 
Co.,  218  U.  S.  371,  54  L.  Ed.  1074,  31  S. 
Ct.  67;  Eagle  Min.,  etc.,  Co.  v.  Hamilton, 
218  U.  S.  513,  54  L.  Ed.  1131,  31  S.  Ct.  27. 

41-lla-  Scope  and  contents — Hawaii 
— Under  the  construction  given  by  the 
supreme  court  of  Hawaii  to  the  statutes 
of  the  territory  (Rev.  Laws  of  Hawaii, 
1905,  c.  123,  p.  732,  et  seq.)  a  bill  of  ex-' 
ceptions,  unlike  a  writ  of  error  or  an  ap- 
peal, does  not  bring  the  entire  case  or 
its  record  to  the  federal  supreme  court. 
Exceptions  and  error  are  inherently  pro- 
ceedings of  different  character.  On  ex- 
ceptions, various  specific  rulings,  whether 
interlocutory  or  final,  whether  brought 
up  immediately  or  only  after  final  judg- 
ment, are  made  direct  and  independent 
subjects  for  review;  only  so  much  of  the 
record  is  brought  here  as  is  necessary 
for  passing  upon  the  specific  exceptions; 
the  decision  usually  is  that  the  excep- 
tions be  sustained  or  overruled  and  that 
such  further  proceedings  be  had  as  the 
rulings  on  the  exceptions  call  for.  On 
error  the  final  judgment  alone  is  brought 
up,  and  specific  rulings,  whether  excepted 


560 


Vol.  \l. 


BXCBPTIOXS,  BILL  OF,  ETC. 


49-73 


E.  The  Evidence— 5.  How  Much  of  the  Evidence  Should  Be  Incor- 
porated— b.  Present  Practice — (1)  In  General. — See  note  63. 

VI.  Settlement  of  Bill  or  Statement  of  Facts. 

E.  Time  of  Settlement — 4.  Settlement  during  or  after  the  Term — a.  In 
General. — Consent  to  the  settlement  of  a  bill  of  exceptions  after  the  close  of  the 
term  must  be  express ;  it  can  not  be  implied  from  silence.--*'' 

f   Removal  of  Causes  from  the  District  of  Columbia. — See  note  31. 

VIII.  Amendment  or  Contradiction  of  Bill. 

A.  Amendment— 1.  In  General.— Time  of  Allowance.— A  bill  of  excep- 
tions may  be  amended  to  conform  the  record  to  the  facts  after  the  bond  on  ap- 
peal has  been  given  and  approved.*'*^ 


to  or  not,  are  considered  only  inciden- 
tally in  passing  upon  the  correctness  of 
the  final  judgment;  the  entire  record  is 
brought  up,  and  the  judgment  of  the  ap- 
pellate court  is  such  as  the  facts  and 
law  warrant  as  shown  by  the  entire  case. 
Cotton  V.  Territory  of  Hawaii,  211  U.  S. 
162.    174,    53    L.    Ed.    131,    29    S.    Ct.    85. 

49-63.  Present  practice  as  to  incorpo- 
rating the  evidence. — A  general  state- 
ment in  a  bill  of  exceptions  in  an  action 
on  a  bond  to  secure  performance  of  a 
building  contract,  that  the  plaintiff  gave 
evidence  by  several  witnesses  that  the 
buildings  were  not  completed  according 
to  the  plans  and  specifications,  in  the 
particulars  set  forth  in  the  assignment 
of  breaches  of  such  contract,  and  that  the 
value  by  reason  of  the  omissions,  struc- 
tural defects,  and  defective  materials,  was 
from  $2,000  to  $3,000  less  on  each  build- 
ing than  if  they  had  been  so  completed, 
furnishes  no  basis  for  the  assertion  that 
there  was  no  evidence  of  the  amount  of 
damage  sustained  from  each  of  the 
breaches  of  the  contract,  but  only  of  the 
total  damage.  Judgment  (1906)  27  App. 
D.  C.  210,  afhrmed.  Mercantile  Trust  Co. 
v.  Hensey,  205  U.  S.  298,  51  L.  Ed.  811, 
27  S.  Ct.  535. 

The  rule  that  a  conviction  will  be  re- 
versed where  it  plainly  appears  that  there 
was  no  evidence  whatever  justifying  such 
conviction,  even  though  no  request  was 
made  to  instruct  the  jury  on  the  whole 
evidence  to  return  a  verdict  of  not  guilty, 
will  not  be  applied  where  it  is  not  certi- 
fied that  the  Ijill  of  exceptions  contains 
the  entire  evidence,  and  the  appellate 
court  is  not  otherwise  satisfied  that  it 
does,  and  it  is  recited  in  the  bill  of  ex- 
ceptions that  the  plaintiff  offered  evi- 
dence during  the  trial  sufficient  to  go  to 
the  jury,  tending  to  prove  each  and  every 
material  allegation  of  the  indictment. 
Williamson  v.  United  States,  207  U.  S. 
425,    52    L.    Ed.    278^)   28    S.    Ct.    163. 

68-24a.     Consent    can    not    be    implied 

12  U  S  Enc— 36  561 


from  silence  of  counsel. — The  silence  of 
counsel  for  appellee  when  a  proposed 
bill  of  exceptions  was  presented  to  the 
court  after  the  close  of  the  term,  and 
after  it  had  lost  all  judicial  power  over 
the  record,  does  not  show  that  the  ap- 
pellee consented  to  the  filing  and  allow- 
ance of  the  bill  nunc  pro  tunc.  (1910) 
Jennings  v.  Philadelphia,  etc.,  R.  Co.,  218 
U.  S.  255,  54  L.  Ed.  1031,  31  S.  Ct.  1,  af- 
firming judgment  (1908)  31  App.  D.  C. 
173. 

68-31.  Time  of  settlement  under  prac- 
tice in  the  district. — A  bill  of  exceptions 
may  not  be  allowed  by  the  supreme  court 
of  the  District  of  Columbia  when  not 
presented  until  after  the  close  of  the 
term  at  which  the  judgment  sought  to  be 
reversed  has  become  final,  and  an  appeal 
has  been  allowed  and  perfected,  although 
the  38  days  allowed  by  common-law  rule 
No.  55  of  that  court  have  not  yet  elapsed, 
since  this  rule  is  applicable  only  so  long 
as  the  judgment  terin  is  running,  and 
does  not  operate  to  extend  the  power  of 
the  trial  judge  over  the  record  beyond 
the  term.  (1910)  Jennings  v.  Philadel- 
phia, etc.,  R.  Co.,  218  U.  S.  255,  54  L, 
Ed.  1031,  31  S.  Ct.  1,  affirming  judgment 
(1908)  31  App.  D.  C.  173. 

73-64a.  Amendment  after  bond  has 
been  given. — There  is  no  error  in  amend- 
ing a  bill  of  exceptions,  after  an  appeal 
bond  has  been  given  and  approved,  so 
as  to  conform  to  the  facts,  by  showing 
that  the  court  stated  when  a  physician 
appointed  by  the  court  in  a  negligent 
action  to  ascertain  plaintiff's  present  con- 
dition was  called  to  testify,  that  his  ex- 
amination of  the  plaintiff  had  been  made 
by  consent,  and  that  counsel  had  agreed 
that  his  evidence  should  be  considered  as 
correct,  where  it  does  not  appear  that 
such  statement  was  unjustified,  or  that 
objection  to  it  was  made.  Herencia  v. 
Guzman,  219  U.  S.  44.  55  L.  Ed.  81,  31 
S.    Ct.    135. 


79 


EXECUTION  OF  WILLS. 


Vol.  VI. 


EXCESSIVE  DAMAGES.— See  ante,  Damages,  p.  455;  post,  New  Trials. 

EXCESSIVE  TAXATION.— See  post,  Taxation. 

EXCHANGE,  BILL  OF.— See  ante,  Bills,  Notks  and  Checks,  p.  204. 

EXCHANGE  OF  PROPERTY.— See  the  title  Exchange  of  Property,  vol. 
6,  p.  75,  and  references  there  given. 

EXCHANGES. — See  the  title  Exchanges,  vol.  6,  p.  77,  and  references  there 
given. 

EXCISE.— See  note  2. 

EXCISE  TAX.— See  post.  Revenue  Laws. 

EXCLUSIVE  RIGHTS.— As  to  patents,  see  post,  Patents. 

EXCUSABLE  HOMICIDE.— See  post.  Homicide. 

EXECUTED  CONTRACTS.— See  ante,  Contracts,  p.  373. 

EXECUTED  TRUSTS.— See  post.  Trusts  and  Trustees. 

EXECUTION  AGAINST  THE  BODY  AND  ARREST  IN  CIVIL  CASES.— 
See  the  title  Execution  against  the  Body  and  Arrest  in  Civil  Cases,  vol.  6, 
p.  80,  and  references  there  given. 

EXECUTION  AND  PROOF  OF  DOCUMENTS.— See  ante.  Best  and  Sec- 
ondary Evidence,  p.  202;  Documentary  Evidence,  p.  469;  post,  Handwrit- 
ing; Wills. 

EXECUTION  OF  WILLS.— See  post,  Wills. 


79-2.  Excise.— Flint  v.  Stone  Tracy  Co., 
220  U.  S.  107,  55  L.  Ed.  389,  31  S.  Ct.  342. 

Income  tax  an  excise  and  not  a  direct 
tax. — The  corporation  tax  law  of  August 
5,  1909,  providing  for  a  special  excise  tax 
with  respect  to  carrying  on  or  doing  busi- 
ness by  corporations,  general  stock  busi- 
ness or  associations  organized  for  a 
profit  and  having  a  capital  stock  repre- 
sented by  shares,  and  insurance  compa- 
nies, may  be  described  as  an  excise  upon 
the  particular  privilege  of  doing  business 
in  a  corporate  capacity,  that  is,  with  the 
advantages  which  arise  from  corporate  or 
quasi  corporate  organizations;  or,  when 
applied  to  insurance  companies,  for  doing 
the  business  of  such  companies,  the  re- 
quirement to  pay  such  taxes  involves  the 
exercise  of  privileges,  and  the  element  of 
absolute  and  unavoidable  demand  is  lack- 
ing. If  the  business  is  not  done  in  the 
manner  prescribed  in  the  statute,  no  tax 
is  payable.  The  act  does  not  impose  di- 
rect   taxation    upon     property     solely   be- 


cause of  its  ownership,  but  the  tax  is  with- 
in the  clause  which  congress  is  authorized 
to  lay  and  collect  under  article  1,  §  8,  cl. 
1,  of  the  constitution,  and  described  gen- 
erally as  taxes,  duties,  imposts,  and  ex- 
cises, upon  which  the  limitation  is  that 
they  shall  be  uniform  throughout  the 
United  States.  It  is  not  a  direct  tax,  hence 
is  not  invalid  because  not  apportioned 
among  the  several  states  according  to 
population.  Flint  v.  Stone  Tracy  Co.,  220 
U.  S.  107,  150.  55  L.  Ed.  389,  31  S.  Ct.  342. 
See  post,  REVENUE  LAWS. 

Tax  on  transfers  of  property. — The  su- 
preme court  accepted  the  decision  of  the 
New  York  court  that  a  New  York  statute 
imposing  a  tax  on  the  transfers  of  prop- 
erty "intended  to  take  effect  in  possession 
or  enjoyment  at  or  after  the  death  of 
grantor"  is  "not  a  property  tax,  but  in  the 
nature  of  an  excise  tax  on  the  transfer  of 
propertv."  Keeney  v.  Comptroller,  222  U. 
S.  525,  56  L.  Ed.  299,  32  S.  Ct.  105. 


562 


Vol.  VI.  BXnCUTIONS.  110-115 


EXECUTIONS. 

III.  Property  Subject  to  Execution,  563. 

P.  Property  Exempt  from  Execution,  563. 

VIII.  Levy  of  Writ,  563. 
A^,  Necessity  for,  563. 

IX.  Return  of  Writ,  563. 
A.  Indorsement,  563. 

XI.  Lien  and  Priorities,  563. 

A.  Lien,  563. 

2.  Commencement  and  Duration  of  Lien,  563. 

B.  Priorities,  563. 

2.  Between  Executions  and  Other  Liens,  563. 

CROSS  REFERENCES. 

See  the  title  Exe;cutioxs,  vol.  6,  p.  84,  and  references  there  given. 

III.  Property  Subject  to  Execution. 

P.  Property  Exempt  from  Execution. — As  to  wages  of  seamen,  see  post, 
Seamen. 

VIII.  Levy  of  Writ.    ~ 

A|.  Necessity  for. — Under  laws  of  Illinois  an  actual  levy  of  the  writ  is  not 
necessary  to  create  a  lien  upon  the  property  of  the  debtor  within  the  county,  but 
delivery  to  the  sheriff  to  be  executed  is  sufficient. ^^ 

IX.  Return  of  Writ. 
A.    Indorsement. — See  post,  Judicial  Sales. 

XI.  Lien  and  Priorities. 

A.  Lien — 2.    Commencement  and  Duration  oe  Lien. — See  note  34. 

B.  Priorities — 2.  Between  Executions  and  Other  Liens. — An  execution 
lien  is  paramount  to  the  rights  in  the  property  possessed  by  a  vendor  under  a 
contract  of  conditional  sale.^^^ 

110-la.    Necessity    for    levy. — Rock    Is-  115-45a.   Between   execution   and   condi- 

land  Plow  Co.  v.  Reardon,  222  U.  S.  354,  tional   sale.— The    lien   created   in    Illinois 

56  L.  Ed.  231,  32  S.  Ct.  164.  by  the  delivery  to  the  sheriff  of  an  execu- 

113-34.   Commencement  and  duration. —  tion  on  a  judgment  on  property  held  by 

Under   Revised   Stats,   of  Illinois,   1874,   c.  the  judgment  debtor  under  a  contract  of 

77,  par.  9,  a  writ  of  execution  becomes  a  conditional  sale  is  paramount  to  the  rights 

valid  lien  upon  the  goods  and  chattels  of  of  the    conditional   vendor.      (1912)    Rock 

the    debtor    upon    its    deliverance    to    the  Island  Plow  Co.  v.  Reardon,  222  U.  S.  354, 

sheriff  or  other  proper  officer  to  be   exe-  56  L.  Ed.  231,  32  S.  Ct.  164.  affirming  de- 

cuted.     Levy  is  not  necessary.     Rock  Is-  cree  (1909)  Reardon  v.  Rock  Island  Plow 

land  Plow  Co.  v.  Reardon,  222  U.   S.  354,  Co.,  168  F.  654,  94  C.  C.  A.  118. 
56  L.  Ed.  231,  32  S.  Ct.  164. 

563 


125  EXECUTORS  AND  ADMINISTRATORS.  Vol.  VI. 

EXECUTORS  AND  ADMINISTRATORS. 

II.  Jurisdiction  over  Administration  Generally,  564. 
IV.  Appointment  and  Tenure  of  Office,  565. 

A.  Appointment,  565. 

4.  Who  May  Be  Executor  or  Administrator,  565. 

VI.  Rights,  Duties  and  Liabilities,  565. 

T.  Sales,  565.     ' 

U.  Payment  of  Debts,  566. 

5.  What  Constitute  Debts  of  the  Estate,  566. 
iy2.  Services  Rendered,   566. 

V.  Distribution,  566. 

4.  Time  of  Distribution,  566. 

9%.  Benefit  of  Inventory,  566. 

9^.  Liability  of  Heirs  after  Division  of  Inheritance.  566. 

11^.  Proceedings  for  Distribution.  566. 

IX.  Actions  by  and  against  Executors  or  administrators,  567. 

A.  Actions  by  Executors  or  Administrators,  567. 
1.  Capacity  to   Sue,  567. 

a.  General  Statement,  567. 

•XI.  Foreign  Executors  or  Administrators,  567. 

C.  Privity  between  Different  Personal  Representatives,  567. 

1.  Administrators,   567. 
F.  Actions,  568. 

CROSS  REFERENCES. 

See  the  title  Executors  and  Administrators,  vol.  6,  p.  119,  and  references 
there  given. 

In  addition,  see  ante,  Appeal  and  Error,  p.  34;  Attorney  and  Client,  p.  158; 
Constitutional  Law,  p.  264;  Courts,  p.  398;  Death  by  Wrongful  Act,  p. 
456;  Descent  and  Distribution,  p.  463;  Equity,  p.  550;  post.  Fraud  and  De- 
ceit; Judgments  and  Decrees;  Parties;  Perpetuities;  Res  Adjudicata  ; 
Trusts  and  Trustees  ;  Wills. 

As  to  conclusiveness  of  foreign  judgment  as  to  decedent's  estates,  see  post, 
Foreign  Judgments,  Records  and  Judicial  Proceedings. 

II.  Jurisdiction  over  Administration  Generally. 

See  note  7. 

Jurisdiction  Primarily  in  State  Courts. — In  this  country  the  right  to  ad- 
minister property  left  by  a  foreigner  within  the  jurisdiction  of  a  state  is  primarily 

125-7.   Jurisdiction   over   administration.  ecclesiastical,  probate,  orphans;  surrogate 

— It  is  the   duty  of  the   sovereign  to  pro-  or  equity  courts.     The  jurisdiction  may  be 

vide  a  tribunal,  under  whose  direction  the  exercised    exclusively    in    one,    or    divided 

just  demands  against  an  estate  may  be  de-  among  two  or  more,  as  the  sovereign  shall 

termined  and  paid,  the  succession  decreed,  determine.       But     somewhere     the     power 

and  the  estate  devolved  to  those  who  are  must  exist  to  decide  finally  as  against  the 

found  to  be  entitled  tc  it.     Sometimes  this  world    all    questions    which    arise    in    the 

duty  is  performed  by  conferring  jurisdic-  settlement  of  the  succession.     Tilt  z'.  Kel- 

tion   upon   a   single    court   and   sometimes  sey,  207  U.   S.  43,  55,  52   L.   Ed.  95,  28   S. 

by  dividing  the  jurisdiction  among  two  or  Ct.  1. 
three   courts.     The  courts  maj'  be  termed 

564 


\'ol.  VI. 


EXECUTORS  AND  ADMINISTRATORS. 


126-144 


committed  to  state  law.     It  seems  to  be  so  regulated  in  the  state  of  California,  by 
giving  the  administration  of  such  property  to  the  public  administrator.^^^ 

IV.  Appointment  and  Tenure  of  Office.- 

A,    Appointm_ent— 4.    Wiio    May    Wm   Kxi-cutor    or    Administrator.— See 
notes  33,   130-35. 

VI.  Rights,  Duties  and  Liabilities. 
T.  Sales.— See  note  144-35. 


126-8a.    Jurisdiction    in    state    courts. — 

Rocca  V.  Thompson,  223  U.  S.  317,  56  L. 
Ed.  453,  33  S.  Ct.  207. 

Federal  courts  without  jurisdiction. — 
There  is  no  federal  law  of  probate  or  of 
the  administration  of  estates.  Rocca  v. 
Thompson.  223  U.  S.  317,  56  L.  Ed.  453, 
32  S.  Ct.  207.  See,  also,  ante,  COURTS, 
p.  398. 

130-33.  Philippine  Islands. — On  the 
death  of  the  wife,  the  husband,  if  surviv- 
ing, was  entitled,  under  the  Spanish  law 
in  force  in  the  Philippine  Islands,  to  settle 
the  affairs  of  the  community,  and  on  his 
death  his  executor  was  the  proper  admin- 
istrator of  the  same.  Enriquez  v.  Go- 
Tiongco,  220  U.  S.  307,  55  L.  Ed.  476,  31  S. 
Ct.  423. 

130-35.  Consular  officers  can  not  admin- 
ister estates. — The  most-favored-nation 
clause  in  the  Italian  treaty  of  May  8,  1878 
(20  Stat,  at  L.  732),  does  not  give  an  Ital- 
ian consul  general  the  right  to  adminis- 
ter the  estate  of  an  Italian  citizen  dying 
intestate  in  one  of  the  United  States,  to 
the  exclusion  of  the  one  authorized  by  the 
local  law  to  administer  the  estate,  because 
of  the  privilege  conferred  by  the  Argen- 
tine treaty  of  July  27,  1853  (10  Stat,  at  L. 
1009),  art.  9,  upon  the  consular  officers  of 
the  respective  countries  as  to  citizens  dy- 
ing intestate,  "to  intervene  in  the  posses- 
sion, administration,  and  judicial  liquida- 
tion of  the  estate  of  the  deceased,  con- 
tormably  with  the  laws  of  the  country, 
for  the  benefit  of  the  creditors  and  legal 
heirs,"  since  this  provision,  if  applicable, 
can  not  be  construed  as  intended  to  super- 
sede the  local  law  us  to  the  administration 
of  such  estates.  The  term  "intervene" 
contained  in  the  treaty  of  July  27,  1853, 
can  only  have  reference  to  the  universally 
recognized  right  of  a  consul  to  tempora- 
rily possess  the  estate  of  citizens  of  his 
nation  for  the  purpose  of  protecting  and 
conserving  the  rights  of  those  interested 
before  it  comes  under  the  jurisdiction  of 
the  laws  of  the  country  for  its  administra- 
tion. The  right  to  intervene  in  adminis- 
tration and  judicial  liquidation  is  for  the 
same  general  purpose,  and  pre-supposes 
an  administration  or  judicial  liquidation 
instituted  otherwise  than  by  the  consul, 
who  is  authorized  to  intervene.  Rocca  v. 
Thompson,  223  U.  S.  317,  56  L.  Ed.  453,  32 
S.  Ct.  207. 

Early     instructions     of     secretaries     of 


state,  emphasizing  the  right  and  duty  of 
consuls  to  administer  upon  the  effects  of 
citizens  of  the  United  States,  dying  in  for- 
eign lands,  must  be  read  in  the  light  of  the 
statute  of  the  United  States,  §  1709,  U.  S. 
Conip.  Stat.  1901,  p.  1170,  which,  while  it 
recognizes  the  right  of  consuls  and  vice 
consuls  to  take  possession  of  the  personal 
estate  left  by  any  citizen  of  the  United 
States  who  shall  die  within  their  consu- 
lates, leaving  there  no  legal  representative, 
partner,  or  trustee,  to  inventory  the  same, 
and  to  collect  debts,  provides  in  the  fifth 
paragraph  of  the  section  that  if,  at  any 
time  before  the  transmission  to  the  United 
States  Treasury  of  the  balance  of  the  es- 
tate, the  legal  representative  appears  and 
demands  his  effects  in  the  hands  of  the 
consul,  they  shall  be  delivered  up,  and  he 
shall  cease  further  proceedings,  and  the 
duties  imposed  are  where  "the  laws  of  the 
country  permit."  Rocca  v.  Thompson,  223 
U.  S.  317,  56  L.  Ed.  453,  456,  32  S.  Ct.  207. 

The  consular  regulations  of  the  United 
States  tersely  express  the  duty  of  a  con- 
sul as  to  the  conservation  of  the  property 
of  deceased  countrymen,  and  declares  that 
he  has  no  right,  as  consular  officer,  apart 
from  the  provisions  of  treaty,  local  law, 
or  usage,  to  administer  the  estate,  or,  in 
that  character,  to  aid  any  other  person  in 
so  administering  it,  without  judicial  au- 
thorization. Rocca  V.  Thompson,  223  U. 
S.  317,  56  L.  Ed.  453,  32  S.  Ct.  207. 

In  the  law  of  the  Argentine  Confedera- 
tion of  1865,  as  presented  in  the  argument 
of  this  case,  no  right  of  administration  is 
given  to  the  consul  of  a  foreign  country. 
It  is  true,  he  may  appoint  an  executor, 
which  appointment  it  is  provided  is  to  be 
at  once  communicated  to  the  testamen- 
tary judge.  Rocca  v.  Thompson,  223  U.  S. 
317.  56  L.  Ed.  453,  32  S.  Ct.  207. 

There  is  nothing  in  this  treaty  undertak- 
ing to  change  the  well-recognized  rule  be- 
tween states  and  nations  which  permits  a 
country  to  first  protect  the  rights  of  its 
own  citizens  in  local  property  before  per- 
mitting it  to  be  taken  out  of  the  jurisdic- 
tion for  administration  in  favor  of  those 
residing  beyond  their  borders.  Disconto 
Gesellschaft  v.  Umbreit,  208  U.  S.  570,  52 
L.  Ed.  625,  29  S.  Ct.  337.  See  post, 
TREATIES. 

144-35.  Power  to  sell  realty. — Authority 
to  carry  out  an  executory  contract  for  the 
sale  of  testator's  real  property  is  conferred 


565 


158-165  EXECUTORS  AND  ADMINISTRATORS.  Vol.  VI. 

U.  Payment  of  Debts — 5.  What  Constitute  De^bts  of  the:  Estate — 
i>4.  Services  Rendered. — Services  in  Aid  of  Winding  Up  Community 
Business.^ — Services  rendered  in  aid  of  winding  up  the  community  business 
were  a  proper  charge  on  the  community  estate,  under  P.  I.  Civ.  Code  1889,  art. 
1064,  even  though  rendered  after  the  death  of  both  husband  and  wife.^"^ 

V.  Distribution. 

4.  Time  of  Distribution. — The  time  for  distributing  the  estate  of  an  absentee, 
and  for  barring  actions  relative  to  the  property,  prescribed  by  Rev.  Laws  Mass., 
c.  144,  is  not  so  arbitrary  and  unreasonable  as  to  be  wanting  in  due  process  of 
law,  because  the  rights  of  the  absentee  are  absokitely  barred  after  one  year  from 
the  appointment  of  a  receiver,  in  the  event  that  such  appointment  was  not  made 
within  thirteen  years  from  the  date  of  the  disappearance  of  the  absentee,  other- 
wise, after  fourteen  years  from  such  disappearance.'''-*'' 

9%.  Benefit  of  Inventory. — Waiver  of  Benefit  of  Inventory. — There  is 
no  presumption  that  heirs  waived  the  benefit  of  inventory  on  division  of  the  in- 
heritance under  the  Porto  Rico  law.''^'' 

9>2.  Liability  of  Hfirs  afi^er  Division  of  Inheritance. — Personal  Lia- 
bility of  Heirs. — The  liability  of  the  succession  after  the  inheritance  has  been 
divided  is  by  virtue  of  Civ.  Code  Porto  Rico,  1889,  arts.  1003,  1023,  1084,  at  an 
end,  and  gives  place  to  a  personal  liability  of  each  heir  for  the  whole  debt  to  the. 
extent  of  the  assets  received  by  him  if  he  has  accepted  with  benefit  of  inventory, 
or,  otherwise,  in  fuU.'^^'' 

11^^.  Proceedings  for  Distribution. — Notice  of  Distribution. — Sufficient 
notice  and  other  safeguards  to  satisfy  the  constitutional  guaranty  of  due  process 
of  law  are  afforded  by  the  provisions  of  Rev.  Laws  Mass.  c.  144,  for  the  distri- 
bution of  the  estate  of  an  absentee,  where  there  is  reasonably  careful  provision 
for  notice  by  publication  before  the  appointment  of  a  receiver,  and  the  whole  pro- 
ceeding begins  with  a  seizure  by  the  sheriff  of  the  property  mentioned  in  the  orig- 
inal petition. ^^^  Ten  days'  statutory  notice  of  the  time  appointed  for  the  settle- 
ment of  the   final  account  of  an  executor,   and  for  action   upon  the  petition   for 

upon  the  executor  by  a  will  which  invests  waived  the  benefit  of  inventory,  and  hence 

him  with  full  and  complete  authority  over  under    Civ.    Code    Porto    Rico,    arts.    1003, 

the    testator's    estate,    and   empowers   him  1023,  1084,  was  liable  after  the  inheritance 

to    sell    the    real   property    at    public    sale  was    divided    for    the    entire    debt    of    the 

after  one  month's  notice,  upon  such  terms  succession.     The   efifect  of  such  a  waiver 

as  he  thinks  proper.     Stewart  v.   Griffith,  was    to    make    the    heir    personally    liable 

217  U.  S.  323,  54  L.  Ed.  782,  30  S.  Ct.  528.  without  limit,  as  he  was  in  the  early  law 

158-37a.    Service   in    aid   of   winding   up  of    Rome,    of    England,     and     of     France 

community     business. — Enriquez     v.     Go-  (Civil   Code   Porto   Rico,   1889,   art.   1084), 

Tiongco,  220  U.  S.  307,  55   L-  Ed.  476,  31  and    there    is    no    ground    for    presuming 

S.  Ct.  423.  that   the   heir   accepted   his   share   without 

A  judgment  against  an  executor  and  benefit  of  inventory,  or  is  liable  for  any- 
general  administrator  administering  the  thing  beyond  the  unascertained  value  of 
estates  of  both  his  deceased  parents,  for  what  he  received.  Whether  he  waived 
services  rendered  to  both  estates  by  the  the  benefit  of  inventory  or  not  is  a  pure 
wish  of  all  the  heirs,  in  aid  of  winding  up  question  of  fact.  Ubarri  v.  Laborde,  214 
the  community  business,  bound  the  com-  U.  S.  168,  53  L.  Ed.  953,  29  S.  Ct.  549; 
munity  estate,  under  the  Spanish  law  in  Laborde  v.  Ubarri,  214  U.  S.  173,  53  L. 
force  in  the  Philippine  Islands.     Enriquez  Ed.  955,  29   S.  Ct.   552. 

V.    Go-Tiongco,  220    U.  S.  307,    55  L.    Ed.  164-79b.     Personal   liability    of    heirs. — 

476,  31  S.  Ct.  423.  Ubarri   v.    Laborde,    214   U.    S.    168,    53    L. 

164-74a.  Distribution  of  estate  of  absen-  Ed.  953,  29  S.  Ct.  549;  Laborde  v.  Ubarri, 

tees.— Blinn  v.   Nelson,   222  U.   S.   1,   56   L.  214  U.  S.  173,  53  L.  Ed.  955,  29  S.  Ct.  552. 
Ed.  65,  32  S.  Ct.  1,  affirming  decree  Nel-  165-81a.   Notice   of   distribution, — (1911) 

son  V.    Blinn,    197  Mass.    279,  15  L.    R.  A.  Blinn   v.    Nelson,    222   U.    S.    1,    56    L.    Ed. 

(N.  S.)  651,  83  N.  E.  889,  125  Am.  St.  Rep.  65,    32    S.    Ct.    1,    afiirming    decree    (1908), 

364,  14  Ann.  Cas.  147.  Nelson  v.   Blinn,   197   Mass.  279,   83   N.   E. 

164-79a.  Waiver  of  benefit  of  inventory.  889,  15  L.  R.  A.   (N.  S.)   651,  125  Am.  St. 

—There  is    no  presumption    that  an    heir  Rep.  364,  14  Ann.  Cas.  147. 

566 


Vol.  VI. 


EXECUTORS  AND  ADMINISTRATORS. 


165-185 


final  distribution  of  the  decedents'  estate,  is  not  wanting  in  due  process  of  law  as 
to  a  nonresident  claimant.^^'' 

Proper  Parties. — In  a  suit  to  set  aside  a  family  settlement,  parties  materially 
interested  are  necessary  parties  defendant. ^^<= 

IX.  Actions  by  and  against  Executors  or  Administrators. 

A.  Actions  by  Executors  or  Administrators— 1.  Capacity  to  Sue— 
a.  General  Statement. — Suit  for  specific  performance  of  contract  for  sale  of 
land.9«^ 

XI.    Foreign  Executors  or  Administrators. 

C.  Privity  between  Different  Personal  Representatives— 1.  Adminis- 
trators.— See  note  49. 


165-81b.    Ten    days'    statutory    notice. — 

The  claim  that  ten  days'  statutory  notice 
of  the  time  appointed  for  the  settlement 
of  the  final  account  of  an  executor,  and 
for  action  upon  the  petition  for  final  dis- 
tribution of  the  decedent's  estate,  was  so 
unreasonable  as  to  be  wanting  in  due 
process  of  law  as  to  a  nonresident  claim- 
ant, was  clearly  unsubstantial  and  devoid 
of  merit,  and  furnished  no  support  for 
the  contention  that  rights  under  the  con- 
stitution of  the  United  States  had  been 
violated.  The  distribution  of  the  estate 
was  but  an  incident  of  the  proceeding 
prescribed  by  the  laws  of  California  in 
respect  to  the  administration  of  an  estate 
in  the  custody  of  one  of  its  probate 
courts.  Goodrich  v.  Ferris,  214  U.  S.  71, 
53  L.  Ed.  914,  29  S.  Ct.  580.  See  ante, 
DUE  PROCESS  OF  LAW,  p.  475. 

"It  is  elementary  that  probate  proceed- 
ing by  which  jurisdiction  of  a  probate 
court  is  asserted  over  the  estate  of  a 
decedent  for  the  purpose  of  administer- 
ing the  same  is  in  the  nature  of  a  pro- 
ceeding in  rem,  and  is  therefore  one  as 
to  which  all  the  world  is  charged  with 
notice.  And  that  the  law  of  California 
conforms  to  this  general  and  elementary 
rule  beyond  question."  Goodrich  v.  Fer- 
ris, 214  U.  S.  71,  53  L.  Ed.  914,  29  vS.  Ct. 
580. 

165-81C.  Proper  parties. — The  .mother's 
estate  and  her  children  by  a  second  mar- 
riage are  necessary  parties  defendant  to 
a  bill  which  seeks  to  set  aside  for  fraud 
a  family  settlement  made  between  the 
mother  and  the  children  of  the  first 
marriage,  to  annul  the  title  which  ap- 
parently flowed  therefrom,  to  avoid  col- 
laterally decrees  of  the  Porto  Rican 
courts  concerning  the  same,  and  to  set 
aside,  as  simulated  and  fraudulent,  the 
sales  made  in  virtue  of  the  title  appar- 
ently vested  by  the  settlement,  where 
such  bill,  though  alleging  that  the  prop- 
erty transferred  to  the  mother  by  such 
settlement  was  acquired  by  the  husband 
by  inheritance,  contains  no  averment 
concerning  the  property  allotted  to  the 
daughters  which  tends  to  rebut  the  legal 
presumption  of  community  as  to  the  prop- 


erty acquired  during  marriage,  which  the 
bill  seeks  to  administer  and  distribute. 
Garzot  v.  Rubio,  209  U.  S.  283,  52  L,.  Ed. 
794,   28   S.    Ct.   548. 

178-96a.  Suit  for  specific  performance 
of  contract  for  sale  of  land. — An  executor 
may  maintain  a  suit  for  the  specific  per- 
formance of  a  contract  for  the  sale  of 
land,  the  property  of  the  testator,  under 
Md.  Code  1888,  art.  93,  §  104,  empowering 
an  executor  to  prosecute  any  personal  ac- 
tion whatever,  whether  in  law  or  in 
equity,  that  the  testator  might  have  prose- 
cuted, except  an  action  for  slander,  and 
§  81  of  the  same  article,  authorizing  the 
executor  of  a  person  who  shall  have  made 
sale  of  real  estate,  and  has  died  before 
receiving  the  purchase  money,  or  con- 
veying the  same,  to  make  a  conveyance 
to  the  purchaser,  provided  he  shall  satisfy 
the  court  that  such  purchaser  has  paid 
the  full  amount  of  the  purchase  price. 
Stewart  v.  Grififith,  217  U.  S.  323,  54  L. 
Ed.  782,  30  S.  Ct.  528.  See  post,  SPE- 
CIFIC PERFORMANCE. 

185-49.  Privity  between  administrators 
in  different  states. — Brown  v.  Fletcher's 
Estate,  210  U.  S.  82,  52  L.  Ed.  966,  28  S. 
Ct.  702:  Ingersoll  v.  Coram,  211  U.  S. 
335,   53   L.    Ed.   208,   29   S.   Ct.  92. 

There  is  no  such  relation  between  an 
executor  and  administrator  with  the  will 
annexed,  appointed  in  another  state,  as 
will  make  a  decree  against  the  latter 
binding  upon  the  former  or  the  estate  in 
his  possession.  Judgment  (1906),  109  N. 
W.  686,  146  Mich.  401,  affirmed.  Brown  v. 
Fletcher's  Estate,  210  U.  S.  82,  52  L.  Ed. 
966,   28    S.    Ct.   702. 

A  judgment  against  an  ancillary  admin- 
istrator in  a  suit  by  him  to  declare  and 
enforce  a  lien  on  certain  interests  in  the 
distributive  shares  of  the  property  of  a 
decedent  is  not  a  bar  to  a  suit  founded 
on  the  same  cause  of  action,  brought  by 
an  ancillary  administrator  of  the  estate 
in  another  jurisdiction.  Decree,  Coram 
V.  Ingersoll  (1906),  148  Fed.  169,  78  C.  C. 
A.  303,  reversed.  Ingersoll  v.  Coram,  211 
U.   S.   335,   53   L.    Ed.  208,  29   S.   Ct.   92. 

A  decree  entered,  after  an  order  of 
revivor,    against    the     administrator      with 


567 


188-198 


EXPERIMENTS  IX  EVIDEXCE. 


Vol.  VL 


F.  Actions. — See  note  65. 

Suits  Removed  to  Federal  Courts. — A  foreign  administrator,  who  has 
brought  an  action  in  IlHnois  to  recover  for  the  neghgent  kilhng  of  his  intestate,  is 
not  precluded  from  filing  a  plea  to  the  jurisdiction  of  the  federal  circuit  court,  to 
which  the  action  has  been  removed,  by  the  proviso  to  Kurd's  Rev.  St.  111.  1905, 
c.  3,  §  18,  that  no  nonresident  shall  be  appointed  or  act  as  administrator.^^^ 


EXECUTORY  INTEREST.— See  post,  Remainders,  Reversions  and  Exec- 
utory Interests. 

EXEMPLIFICATION. — See  ante,  Best  and  Secondary  Evidence,  p.  202; 
Documentary  Evidence,  p.  469. 

EXEMPTIONS. — See  ante,  Banks  and  Banking,  p.  184;  post,  Homestead 
Exemptions;  Licenses;  Revenue  Laws.  As  to  exemption  from  capture,  see 
post.  Prize.  As  to  exemption  of  seamen's  wages  from  execution,  etc.,  see  post, 
Seamen. 

EXERCISE.— See  note  2a. 

EXIGENCY.— See  note  a. 

EXONERATION. — See  ante.  Contribution  and  Exoneration,  p.  375 ;  post,. 
Principal  and  Surety. 

EXPATRIATION. — See  ante.  Citizenship,  p.  235 ;   post,  Naturalization. 

EXPERIMENTS  IN  EVIDENCE.— See  the  title  Experiments  in  Evidence. 
vol.  6,  p.  199,  and  references  there  given. 


the  will  annexed  of  a  nonresident,  who 
had  died  pending  suit,  confirming  an 
award  in  arbitration  proceedings  had  in 
the  suit  under  a  rule  of  court,  does  not 
bind  the  nonresident  executors  and 
legatees,  who  did  not  appear  and  were 
not  validly  served  with  process,  although 
the  stipulation  for  submission  to  arbi- 
tration provided  that  the  arbitration 
should  continue  in  case  of  the  death  of 
either  party,  and  that  his  successors  and 
legal  representatives  should  be  bound  by 
the  final  award.  Brown  v.  Fletcher's 
Estate,  210  U.  S.  82,  52  L.  Ed.  966,  28  S. 
Ct.   702. 

188-65.  Suits  in  District  of  Columbia.— 
An  executor  who  could  have  maintained 
in  Maryland,  where  the  land  lies,  a  suit 
for  the  specific  performance  of  a  con- 
tract for  its  sale,  can,  under  D.  C.  Code, 
§  329  (31  Stat,  at  L.  1242,  chap.  854), 
maintain  the  suit  in  the  District  of  Co- 
lumbia if  the  defendant  resides  there. 
Stewart  v.  Griffith,  217  U.  S.  323,  54  L. 
Ed.  782,  30  S.  Ct.  528. 

188-65a.  Suits  removed  to  federal 
courts.— Patch  :■.  Wabash  R.  Co.,  207  U. 
-S.  277,   52   L.   Ed.  204,  28  S.   Ct.  80. 

197-2a.  Company  with  power  to  exer- 
cise powers  and  privileges  of  another 
company. — Incorporating  a  railway  com- 
pany with  power  to  exercise  all  the  pow- 
ers and  privileges  conferred  by  an  earlier 
act  incorporating  another  railway  com- 
pany does  not  confer  upon  the  new  cor- 
poration the  immunit}'^  from  taxation  en- 
joyed by  the  earlier  company  under  its 
charter.     It  is  one  thing  to  have  authority 


to  exercise  all  the  "powers  and  privileges" 
of  another  company,  and  another  thing  to 
enjoy  an  exemption  from  taxation.  The 
exercise  of  the  "powers  and  privileges"  of 
the  company  referred  to  was  reasonably 
essential  to  the  construction  and  operation 
of  the  independent  railroad.  Its  immu- 
nity from  taxation  was  not.  Therefore,  no 
immunity  from  taxation  which  did  not 
then  exist  was  conferred  by  the  Georgia 
Act  of  January  21,  1852.  authorizing  the 
consolidation  of  the  stocks  of  two  railway 
companies  under  the  name  and  style  of 
one  of  such  companies,  which  should  con- 
tinue to  exercise  all  the  powers  and  priv- 
ileges conferred  by  existing  law  upon  (he 
corporation  of  that  name,  and  be  under 
all  the  liabilities  and  restrictions  imposed 
upon  it.  Wright  v.  Georgia  R.,  etc.,  Co., 
216  U.  S.  420,  54  L.  Ed.  544,  30  S.  Ct.  242. 
See  ante,  CORPORATIONS,  p.  381;  post, 
TAXATION. 

198-a.  Public  exigency. — A  public  ex- 
igency exists,  for  the  "common  preserva- 
tion," when  the  legislature  declares  that 
for  a  bona  fide  public  purpose  there  should 
be  a  right  of  way  for  a  common  carrier 
across  a  particular  piece  of  property.  The 
uses  to  which  §  32S3a,  Rev.  Stat,  Ohio, 
authorizes  a  condemnation  of  a  right  of 
way  are  undeniably  public  and  not  private 
uses.  When  that  is  the  case,  "the  propri- 
ety of  expediency  of  the  appropriation 
can  not  be  called  in  question  by  any  other 
authority."  Cincinnati  v.  Louisville,  etc., 
R.  Co.,  223  U.  S.  390,  406,  56  Ed.  481,  32  S. 
Ct.  267.     See  ante,  EMINENT  DOMAIN,. 


568 


Vol.  VI.  EXPLOSIONS  AND  EXPLOSIVES.  2  06-208 


EXPERT  AND  OPINION  EVIDENCE. 
I.  Expert  Evidence,  569. 

D.  Examination  of  Expert  \\'itnesses,   569. 

4.  x-\ssuming  Facts  Xot  in  Evidence,  569. 

II.  Nonexpert  Opinion,  569. 

B.  Admissibility  of  Nonexpert  Testimony,  569. 

1.  Opinion  Deduced  from  Undisclosed  Facts,  569. 

5.  Insanity,  569. 

CROSS  REFERENCES. 

See  the  title  Expert  and  Opixiox  Evidexce,  vol.  6,  p.  200.  and  references 
there  given. 

I.  Expert  Evidence. 

D.  Examination  of  Expert  Witnesses — 4.  Assumixg  Facts  Xot  ix  Evi- 
dexce.— A  witness  can  not  testify  as  to  values  in  answer  to  a  question  which  as- 
sumes as  a  fact  what  there  is  no  evidence  to  support. ^•''^ 

II.  Nonexpert  Opinion. 

B.    Admissibility  of  Nonexpert  Testimony — 1.    Opixiox  Deduced  from 
UxDiscLOSED  Facts. — See  note  i^i. 
5.  IxsAXiTY. — See  note  45. 

EXPERT  WITNESSES.— See  ante.  Expert  axd  Opixiox  Evidexce,  p.  569. 

EXPLOSIONS  AND  EXPLOSIVES.— See  the  references  given  under  Explo- 
sioxs  AXD  ExpiosivES,  vol.  6,  p.  209.  In  addition,  see  post,  Ships  and  Shipfix'g. 
As  to  liability  of  oil  company  to  a  consumer  for  explosion  caused  by  kerosene, 
which  had  an  admixture  of  gasoline,  through  the  negligence  of  the  oil  company 
and  which  was  supplied  to  the  consumer  through  the  agency  of  a  retailer,  see 
post,  Negligexce.    As  to  inspection  of  oils,  see  post,  Ixspection  Laws.    As  to 

206-35a.    Assuming   facts    not     in     evi-  Trust  Co.,  213  U.  S.  257,  53  L.  Ed.  788,  29 

dence.— Harten  v.   Loffler,   29   App.   D.    C.  S.  Ct.  420. 

490,  affirmed  in  Harten  v.  Loffler,  212  U.  In  no  other  way  than  this  can  the  full 

S.  397,  53  L.  Ed.  568,  29  S.  Ct.  351.     See.  knowledge    of    an    unprofessional    witness 

also,  ante.  EVIDEXCE,  p.  558.  with    regard    to    the    issue    be    placed    be- 

207-38.     Opinion    deduced    from    undis-  fore    the    jury,    because    ordinarily    it    is 

closed  facts. — A  statement  that  the  prin-  impossible    for    such    witness    to    give    an 

cipal  chief  of  the  Choctaw  Nation  ratified  adequate    description    of    all    appearances 

an    illegal    sheriffs    sale,    giving    no    facts  which    to    him    have    indicated    sanity    or 

upon    which    the    alleged    ratification    was  insanity.      Such    testimony   has   been  well 

based,  is  a  conclusion  of  law,  and  as  such  described  as  a  compendious  mode  of  as- 

is      inadmissible     in     evidence.       Decree  certaining  the  result  of  the  actual  obser- 

(1905),    138    F.    394,    70    C.    C.    A.    534,    af-  vations      of     witnesses.      Ordinarih',    and 

firmed'.      Walker    v.    McLoud,    204    U.    S.  perhaps   necessaril3%  the  witness   in  testi- 

302,   51   L.   Ed.   495,  27   S.   Ct.  293.  fying  to  his  opportunities  for  observation 

208-45.  Insanity. — A  lay  witness  who  has  and   his    actual    observation    relates   more 

had   an   adequate   opportunity   to   observe  or   less    fully   the    instances    of    his     con- 

the  speech  and  other  conduct  of  a  person  versation    or    dealings    with     the      person 

whose  soundness  or  unsoundness  of  mind  whose    mental    capacity   is   under    consid- 

is  in  issue  may,  in  addition  to  relating  the  eration,    and    it    is,    of   course,    cornpetent, 

significant   instances    of    speech    and    con-  either   upon    direct    or   cross-examination, 

duct,  testify  to  his  opinion   as  to  mental  to  elicit  those  instances  in  detail.    Turner 

capacity,    formed   at   the    time    from    such  v.    American,    etc..    Trust    Co.,    213    U.    S. 

observation.      Decree    (1907).   29    App.    D.  257,  260,  53  L.  Ed.  788,  29  S.  Ct.  420. 
C.  460,  affirmed.    Turner  v.  American,  etc., 

569 


210  EXTRA  COMPENSATION.  Vol.  VI. 

power  to  prevent  the  sale  of  oils  excepting  those  conforming  to  a  certain  stand- 
ard, see  post,  Police  Power.  As  to  power  of  states  to  regulate  sale  of  gun- 
powder, see  ante.  Constitutional  Law,  p.  264;  post,  Interstate  and  Foreign 
Commerce;  Police  Power. 

EXPORTS  AND  IMPORTS.— See  note  2. 

EX  POST  FACTO  LAWS. — See  ante,  Constitutional  Law,  p.  264. 

EXPRESS  COMPANIES.— See  the  title  Express  Companies,  vol.  6,  p.  212, 
and  references  there  given.  In  addition,  see  ante,  Carriers,  p.  216;  post.  In- 
terstate AND  Foreign  Commerce;  Taxation. 

EXPRESSIO  UNIUS.— See  post,  -Statutes. 

EXPRESS  MALICE.— See  post,  Homicide. 

EXPRESS  TRUST. — See  post.  Trusts  and  Trustees. 

EXTENSION.— See  post.  Patents. 

EXTORTION. — See  the  title  Extortion,  vol.  6,  p.  214,  and  references  there 
given. 

EXTRA  ALLOWANCE. — See  ante.  Army  and  Navy,  p.  150;  post,  United 
States. 

EXTRA  COMPENSATION.— See  post.  Public  Officers. 

210-2.      Goods    from     foreign     states. —  States.      The     provision     that     the     rates 

Article  8  of  the  Cuban  Treaty  of  Decern-  granted    to   Cuba    shall    continue    "prefer- 

ber   17,   1903,  provides   that  "'the   rates   of  ential  in  respect  to  all  like  imports  from 

duty  herein  granted  by  the  United  States  other  countries"  does  not  relate  to  charges 

to  the  republic  of  Cuba  are  and  shall  con-  on    shipments    between   places    under   the 

tinue  during  the  term  of  this  convention  same  flag,  but  to  duties  laid  on  shipments 

preferential  in  respect  to  all  like  imports  — on   imports — from   countries   which    are 

from  other  countries."     This  article  refers  foreign    to  the    United    States.      Faber  v. 

to     imports — the    correlative    of     exports.  United  States,  221  U.  S.  649,  55  L.  Ed.  897, 

This  necessarily  related  to  shipments  from  31     S.     Ct.     659.       See     post,     REVENUE 

a  country  which  was  foreign  to  the  United  LAWS. 

570 


Vol.  VI.  EXTRADITION.  220 


EXTRADITION. 

II.  International,  571. 

D.  Statutory  Provisions,  571. 

4.  Complaint,  571. 

c.  Requisites,  571. 

5.  Evidence,  572. 

c.  Authentication  Requirements  of  the   Act  of   1882,   571. 

d.  Sufficiency  of  Evidence,  571. 

e.  Presumptions  as  to  Conduct  of  Trial,  573. 

E.  Trial  on  Another  Charge,  573. 

III.  Interstate,  573. 

A.  The  Constitutional  Provision,  573. 

1.  Nature  of,  573. 
3.  Terms  of,  573. 

,  D.  Extraditable  Persons,  573. 

2.  Fugitives  from  Justice,  573. 

a.  "Fugitive"  Defined,  573. 
c.  Actual  Presence,  573. 
E.  Powers  and  Duty  of  Governor,  574. 

1.  Governor  Demanding  Extradition  of  Fugitive,   574. 

2.  Governor  of  Whom  Extradition  of  Fugitive  Is  Demanded,  574. 

a.  In  General,  574. 

b.  Statutory  Provisions,  574. 

f.  Evidence  before  Governor,  574. 

(1)  Questions  of  Law  and  Fact  to  Be  Proved,  574. 

(2)  Evidence  of  Fugitivity,  574. 
G.  Habeas   Corpus,  575. 

1.  Right  of  Accused  to  Invoke  Aid,  575. 

3.  Review  of  Governor's  Decision,  575. 
H.  Procedure,  575. 

1.  The  Indictment,  575. 
J.  Extraditing  Twice  for  Same  OflFense,  576. 

IV.  Trial  on  Another  Charge,  576. 

A.  In  International  Cases,  576. 

CROSS  REFERENCES. 
See  the  title  Extradition,  vol.  6,  p.  215,  and  references  there  given. 

II.  International. 
D.   Statutory  Provisions — 4.  Compi,aint — c.  Requisites. — See  note  18. 

220-18.  Requisites. — The  general  doc-  technicality  with  which  these  proceed- 
trine  in  respect  of  extradition  complaints  ings  were  formerly  conducted  has  given 
is  well  stated  by  Judge  Coxe  in  Ex  parte  place  to  more  liberal  practice,  the  ob- 
Sternaman,  77  Fed.  Rep.  595,  597,  as  fol-  ject  being  to  reach  a  correct  decision 
lows:  "The  complaint  should  set  forth  upon  the  main  question.  Is  there  reason- 
clearly  and  briefly  the  ofifense  charged.  able  cause  to  believe  that  a  crime  has 
It  need  not  be  drawn  with  the  formal  been  committed?  The  complaint  maj',  in 
precision  of  an  indictment.  If  it  be  suffi-  some  instances,  be  upon  information  and 
ciently  explicit  to  inform  the  accused  per-  belief.  The  exigencies  may  be  such  that 
son  of  the  precise  nature  of  the  charge  the  criminal  may  escape  punishment  un- 
against  him,  it  is  sufficient.     The  extreme  less  he   is   promptly   apprehended  by   the 

571 


220 


EXTRADITION. 


Vol.  VL 


Complaint  Sworn  to  upon  Information  and  Belief. — A  complaint  sworn 
to  upon  information  and  belief  is  sufficient  in  proceedings  for  the  extradition  of 
a  person  to  a  foreign  country,  where  it  is  supported  by  the  testimony  of  witnesses 
who  are  stated  to  have  deposed,  and  who  therefore  must  be  presumed  to  have 
been  sworn. ^^^ 

5.  EvidKnce.— c.  Authentication  Requirements  of  the  Act  of  1882. — See 
note  21. 

d.   Sufficiency  of  Evidence. — See  note  22. 

Identity. — A  finding  that  the  identity  of  the  prisoner  with  the  person  whose 
extradition  to  a   foreign  country  is   sought  is  made  out   can  not  be   said  to  be  er- 


representatives  of  the  country  whose  law 
he  has  violated.  From  the  very  nature 
of  the  case,  it  may  often  happen  that 
such  representative  can  have  no  personal 
knowledge  of  the  crime.  If  the  offense 
be  one  of  the  treaty  crimes,  and  if  it  be 
stated  clearly  and  explicitly  so  that  the 
accused  knows  exactly  what  the  charge 
is,  the  complaint  is  sufficient  to  authorize 
the  commissioner  to  act."  Yordi  v.  Nolte, 
215  U.  S.  227,  2.30,  54  L.  Ed.  170,  30  S. 
Ct.   90. 

Good  faith  to  the  demanding  foreign 
government  requires  the  surrender  of  the 
accused  in  extradition  proceedings  if 
there  is  presented,  even  in  somewhat  un- 
technical  form,  such  reasonable  ground 
to  suppose  him  guilty  of  crime  as  to  make 
it  proper  that  he  should  be  tried.  Glucks- 
man  v.  Henkel,  221  U.  S.  508,  55  L.  Ed. 
830,  31  S.  Ct.  704.  See,  also.  Pierce  v. 
Creecy,  210  U.  S.  387,  52  L.  Ed.  1113,  28 
S.  Ct.  714. 

Necessity  of  attaching  record  of  pro- 
ceedings before  foreign  court. — To  give 
jurisdiction  to  a  United  States  commis- 
sioner of  a  proceeding  to  extradite  a 
fugitive  from  the  justice  of  a  foreign 
state,  the  record  of  proceedings  before 
the  foreign  court,  and  the  depositions  of 
witnesses  therein  contained,  upon  which 
the  extradition  proceeding  is  based,  need 
not  be  attached  to  the  complaint,  if  they 
are  in  the  custody  and  keeping  of  the  one 
making  the  complaint,  and  the  commis- 
sioner is  possessed  of  the  information 
which  they  contain,  which  is  sufficient  to 
satisfy  him  that  the  proceeding  is  based 
upon  real  grounds.  Judgment,  Ex  parte 
Yordi  (D.  C),  166  F.  921,  affirmed.  Yordi 
V.  Nolte,  215  U.  S.  227,  54  L.  Ed.  170,  30 
S.   Ct.   90. 

The  irregularity,  if  any,  in  making  a 
complaint  in  extradition  proceedings  on 
information  and  belief,  without  attaching 
thereto  the  record  of  the  foreign  court 
which  is  the  basis  of  the  proceeding,  is 
cured  by  the  production  at  the  hearing 
of  such  record,  which  is  sufficient  to 
justify  the  detention  of  the  accused.  Yordi 
V.  Nolte,  215  U.  S.  227,  54  L.  Ed.  170,  30 
S.   Ct.  90. 

Variance. — A  variance  in  proceedings 
for  the  extradition  to  a  foreign  country  of 
a  person  charged  with  forgery  and  utter- 


ing forged  paper,  in  that  the  complaint 
speaks  of  bills  of  exchange,  while  the  evi- 
dence shows  the  forged  instruments  to 
have  been  promissory  notes,  is  not  fatal, 
where  the  instruments  are  sufficiently 
identified.  Qlucksman  v.  Henkel,  221  U. 
S.  508,  55  L.  Ed.   830,  31   S.   Ct.   704. 

The  effect  of  a  variance  between  the 
complaint  and  the  evidence  in  proceed- 
ings for  the  extradition  of  a  person  to  a 
foreign  country  is  to  be  decided  on  gen- 
eral principles,  irrespective  of  the  law  of 
the  state  where  the  proceedings  are  had. 
Qlucksman  v.  Henkel.  221  U.  S.  508,  55  L. 
Ed.   830.  31    S.   Ct.   704. 

220-18a.  Complaint  sworn  to  upon  in- 
formation and  belief  sufficient. — Qlucks- 
man V.  Henkel,  221  U.  S.  508,  55  L.  Ed. 
830,  31  S.  Ct.  704;  Yordi  v.  Nolte,  215  U. 
S.  227.  54  L.  Ed.  170,  30  S.  Ct.  90.  See, 
also.  Rice  v.  Ames,  180  U.  S.  371,  45  L. 
Ed.  577. 

220-21.  Authentication  requirements  of 
the  Act  of  1882. — Unsworn  statements  cer- 
tified i)y  the  United  States  ambassador 
and  the  charge  d'affaires  to  be  authenti- 
cated properly  and  legally  so  as  to  be 
received  for  similar  purposes  by  tribunals 
of  the  country  from  which  the  accused 
has  fled  are,  by  the  express  terms  of  Act 
August  3,  1882,  c.  378,  22  Stat.  215  (U.  S. 
Comp.  St.  1901,  p.  3593),  admissible  in 
evidence  in  extradition  proceedings.  Elias 
7'.  Ramirez,  215  U.  S.  398,  54  E.  Ed.  253, 
30  S.  Ct.  131. 

220-22.  Sufficiency  of  evidence. — The 
evidence  is  sufficient  to  justify  commit- 
ment in  extradition  proceedings  on  a 
charge  of  forgery  of  railway  wheat  cer- 
tificates purporting  to  show  the  true 
weight  of  car  loads  of  wheat  shipped  from 
the  United  States  to  Mexico,  where  the 
accused  was  a  member  of  a  finn  of  cus- 
toms brokers  which  presented  to  the 
Mexican  customs  authorities  certificates 
showing  weights  much  less  than  the  true 
weight;  that  the  Mexican  government  was 
thereby  defrauded  of  a  large  amount  of 
import  duties;  that  the  accused  was  the 
principal,  if  not  the  only,  beneficiary  of 
the  fraud;  and  that,  instead  of  reparation 
or  explanation,  resort  was  had  to  flight. 
Judgment,  Ex  parte  Ramirez  (Ariz.  1907), 
90  P.  323,  reversed.  Elias  v.  Ramirez,  215 
U.  S.  398,  54  L.  Ed.  253,  30  S.  Ct.  131. 


572 


Vol.  VI. 


EXTRADITION. 


220-224 


roneous  where,  in  addition  to  a  photograph  under  seal  of  the  foreign  magistrate, 
which  represents  the  prisoner,  there  are  other  facts  tending  to  establish  such 
identity.^^*" 

e.  Presumption  as  to  Conduct  of  Trial. — Courts  are  bound  by  the  existence  of 
an  extradition  treaty  to  assume  that  the  trial  in  the  demanding  state  will  be 
fair.  22b 

E.    Trial  on  Another  Charge. — See  post,  "Trial  on  Another  Charge,"  IV. 

III.  Interstate. 

A.   The  Constitutional  Provision — 1.  Nature;  of. — See  note  28. 

3.  Terms  of. — See  note  30. 

D.  Extraditable  Persons — 2.  Fugitives  from  Justice — a.  "Fugitive"  De- 
fined.— See  note  37. 

c.  Actual  Presence. — See  note  39.  A  man  may  be  indicted  in  a  case  in 
which  he  can  not  be  extradited. ^^'^  A  criminal  need  not  do  within  the  state  every 
act  necessary  to  complete  the  crime.  If  he  does  there  an  overt  act  which  is,  and 
is  intended  to  be,  a  material  step  towards  accomplishing  a  crime,  and  then  absents 
himself  from  the  state,  and  does  the  rest  elsewhere,  he  becomes  a  fugitive  from 
justice  for  extradition  purposes  vv^hen  the  crime  is  complete,  if  not  before.^^" 


220-22a.  Identity. — Glucksnian  v.  Hen- 
kel,  221  U.  S.  508,  55  L.  Ed.  830,  31  S.  Ct. 
704. 

220-22b.  Presumption  as  to  conduct  of 
trial.— Ghicksman  c'.  Henkel,  221  U.  S. 
508,   55   L.    Ed.   830,   31   S.   Ct.   704. 

222-28.  Nature  of. — McNichols  v.  Pease, 
207  U.  S.  100,  52  L.  Ed.  121,  28  S.  Ct.  58. 

222-30.  Terms  of,— U.  S.  Const.,  art.  4, 
§  2.  McNichols  v.  Pease,  207  U.  S.  100, 
52  L.  Ed.  121,  28  S.  Ct.  58;  Pierce  v. 
Creecy,  210  U.  S.  387,  52  L.  Ed.  1113,  28 
S.  Ct.  714;  Strassheim  v.  Daily,  221  U.  S. 
280,  55  L.   Ed.  735,  31   S.  Ct.  558. 

No  person  may  be  lawfully  removed 
from  one  state  to  another  by  virtue  of  this 
provision,  unless:  1.  He  is  charged  in 
one  state  with  treason,  felony  or  other 
crime;  2,  he  has  fled  from  justice;  3,  a 
demand  is  made  for  his  delivery  to  the 
state  wherein  he  is  charged  with  crime. 
If  either  of  these  conditions  are  absent, 
the  constitution  affords  no  warrant  for  a 
restraint  of  the  liberty  of  any  person. 
Pierce  7'.  Creecy,  210  U.  S.  387,  401,  52  L. 
Ed.  1113,  28  S.  Ct.  714. 

The  constitution  does  not  require,  as 
an  indispensable  prerequisite  to  interstate 
extradition,  that  there  should  be  a  good 
indictment,  or  even  an  indictment  of  any 
kind.  It  required  nothing  more  than  a 
charge  of  crime.  Pierce  v.  Creecy,  210 
U.  S.  387,  403,  52  L.  Ed.  1113,  28  S.  Ct. 
714.  See  post,  "The  Indictment,"  III, 
H,    ]. 

223-37.  "Fugitive"  defined.— McNichois 
V.  Pease,  207  U.  S.  100,  52  L.  Ed.  121,  28 
S.  Ct.  58;  Bassing  v.  Cady,  208  U.  vS.  386, 
52  L.  Ed.  540,  28  S.  Ct.  392;  Strassheim  v. 
Daily,  221  U.  S.  280,  55  L.  Ed.  735,  31  S. 
'Ct.  558. 

Purpose  for  leaving  state. — A  person 
who  is  in  the  state  at  the  time  the  crime 
•with  which  he  is  charged  was  committed. 


and  thereafter  leaves  the  state,  no  matter 
for  what  reason  or  under  what  belief,  he 
is  a  fugitive  from  the  justice  of  that  state 
within  the  meaning  of  the  constitution 
and  laws  of  the  United  States.  Bassing 
z\  Cady,  208  U.  S.  386,  52  L.  Ed.  540,  28 
S.  Ct.  392;  McNichols  v.  Pease,  207  U. 
S.  100,  52  L.  Ed.  121,  28  S.  Ct.  58;  Ex 
parte  Hofifstot,  180  Fed.  240,  order  af- 
firmed in  Hoffstot  V.  Flood,  218  U.  S. 
665,   54   L.   Ed.   1201,   31   S.   Ct.   222. 

A  person  indicted  the  second  time  for 
the  same  offense  is  none  the  less  a  fugi- 
tive from  justice  within  the  meaning  of 
Const.  U.  S.,  art.  4,  §  2,  and  Rev.  St.  U. 
S.,  §  5278  (U.  S.  Comp.  St.  1901,  p.  3597), 
governing  extradition,  because,  after  the 
dismissal  of  the  first  indictment,  on  which 
he  was  originally  extradited,  he  left  the 
state  with  the  knowledge  of,  or  without 
objection  bv.  the  state  authorities.  Bass- 
ing V.  Cady,  208  U.  S.  386.  52  L.  Ed.  540. 
28  S.  Ct.  392.  See  post,  "Extraditing 
Twice  for  Same  Offense,"  III,  J. 

224-39.  Actual  presence. — Petitioner,  a 
resident  of  New  York,  indicted  in  Penn- 
sylvania for  conspiracy  to  bribe  members 
of  the  Pittsburg  city  council,  could  not 
be  extradited,  in  the  absence  of  some 
oroof  that  he  had  been  physically  present 
in  Pennsylvania  when  the  offense  was 
committed,  as  otherwise  he  could  not  be 
a  fugitive  from  justice  of  that  state.  (C. 
C.),'Ex  parte  Hoffstot,  180  F.  240.  order 
affirmed  in  Hoffstot  v.  Flood,  218  U.  S. 
665.  54  L.   Ed.  1201,  31  S.  Ct.  222. 

224-39a.  Liability  to  indictment  as  de- 
termining.— Ex  parte  Hoffstot,  180  Fed. 
240,  order  affirmed  in  Hoffstot  v.  Flood, 
218  U.  S.  665,  54  L.  Ed.  1201.  31  S.  Ct. 
222. 

224-39b.  Overt  Act. — Strassheim  v. 
Daily,  221  U.  S.  280,  55  L.  Ed.  735,  31  S. 
Ct.   558. 


573 


224-225 


EXTRADITION 


Vol.  VI. 


Proof  of  Presence. — Showing  that  the  accused  was  in  the  state  in  the  neigh- 
borhood of  the  time  alleged  in  the  indictment  as  the  date  of  the  crime,  is  enough 
to  preclude  a  discharge  upon  habeas  corpus  in  extradition  proceedings,  on  the 
ground  that  he  was  not  a  fugitive  from  justice.^*^*^ 

E.  Powers  and  Duty  of  Governor — 1.  Governor  Demanding  Extradi- 
tion OF  Fugitive. — Requisition  by  Governor  of  Porto  Rico. — Precisely  the 
same  power  to  issue  a  requisition  for  the  return  of  a  fugitive  criminal  as  is  pos- 
sessed under  Rev.  St.  U.  S.  §  5278  (U.  S.  Comp.  St.  1901,  p.  3597),  by  the  gov- 
ernor of  any  organized  territory,  is  given  the  governor  of  Porto  Rico  by  the  pro- 
visions of  the  Foraker  act  (Act  April  12,  1900,  c.  191,  §  14,  31  Stat.  80),  that  the 
laws  of  the  United  States  not  localjy  inapplicable  shall  be  in  force  and  effect  in 
Porto  Rico,  and  of  section  17  (page  81)  that  the  governor  of  Porto  Rico  shall 
have  al]  the  powers  of  governors  of  the  territories  of  the  United  States  that  are 
not  locally  inapplicable.'*'^'' 

2.  Governor  of  Whom  Extradition  of  Fugitive  Is  Demanded — a.  In  Gen- 
eral.— See  note  45. 

b.    Statutory  Provisions. — See  note  47. 

f.  Evidence  before  Governor — (1)  Questions  of  Law  and  Pact  to  Be  Proved. 
— Right  to  Be  Heard  before  Governor. — The  executive  of  the  surrendering 
state  may  act  upon  the  requisition  papers  in  the  absence  of  the  accused,  and  with- 
out previous  notice  to  him.-"^^'' 

(2)    Evidence  of  Pugitivity. — See  note  54. 


224-39C.  Proof  of  Presence. — Strassheim 
V.  Daily,  221  U.  S.  280,  55  L.  Ed.  735,  31 
S.   Ct.  558. 

Where  there  was  specific  evidence  that 
petitioner,  a  resident  of  New  York,  par- 
ticipated there  in  a  conspiracy  to  bribe 
members  of  the  city  council  of  Pittsburg 
to  select  certain  banks  in  Pittsburg,  one 
of  which  petitioner  was  president,  as  city 
depositories,  and  there  was  substantial 
evidence  from  which  a  jury  would  be 
justified  in  drawing  an  inference  that  pe- 
titioner was  in  Pittsburg  on  a  day  when 
some  act  or  acts  in  furtherance  of  the 
conspiracy  were  performed,  there  was 
sufficient  proof  that  he  was  a  fugitive 
from  justice  to  justify  his  extradition  to 
Pennsylvania.  (C.  C),  Ex  parte  Hoffstot, 
180  F.  240,  judgment  affirmed  in  Hoffstot 
V.  Flood,  218  U.  S.  665,  54  L.  Ed.  1201,  31 
S.  Ct.  222. 

224-44a.  Requisition  by  governor  of 
Porto  Rico. — Kopel  v.  Bingham,  211  U. 
S.  468,  53  L.  Ed.  286,  29   S.   Ct.   190. 

In  Kopel  V.  Bingham,  211  U.  S.  468, 
53  L.  Ed.  286,  29  S.  Ct.  190,  the  court  said: 
"It  is  impossible  to  hold  that  Porto  Rico 
was  not  intended  to  have  power  to  re- 
claim fugitives  from  its  justice,  and  that 
it  was  intended  to  be  created  an  asylum 
for    fugitives    from    the    United    States." 

Porto  Rico  is  a  territory,  within  the 
meaning  of  the  provision  of  Rev.  St.  U. 
S.,  §  5278  (U.  S.  Comp.  St.  1901,  p.  3597), 
authorizing  the  executive  authority,  of 
any  state  or  territory  to  inake  requisition 
for  the  extradition  of  fugitive  criminals. 
Order  (1907),  81  N.  E.  773,  189  N.  Y.  124, 
affirmed.  Kopel  v.  Binsrham,  211  U.  S. 
468,  53  L.  Ed.  286,  29  S.  Ct.  190. 


224-45.  Power  and  duty  of  governor  of 
whom  fugitive  demanded. — McNichols  v. 
Pease,  207  U.  S.  100,  52  L.  Ed.  121,  28  S. 
Ct.    58. 

225-47.  Statutory  provisions.  —  Mc- 
Nichols V.  Peace,  207  U.  S.  100,  52  L.  Ed. 
121,  28  S.  Ct.  58;  Marbles  v.  Creecy,  215 
U.  S.  63,  54  L.  Ed.  92,  30  S.  Ct.  32;  Comp- 
ton  V.  Alabama,  214  U.  S.  1,  53  L.  Ed. 
885,  29  S.  Ct.  605.  See  post,  "The  In- 
dictment," III,  H,  1. 

225-51a.  Right  to  Hearing  before  Gov- 
ernor.— Marbles  v.  Creecy,  215  U.  S.  63, 
54   L.    Ed.   92,  30  S.   Ct.   32. 

225-54.  Evidence  of  fugitivity.— Bassing 
z:  Cady,  208  U.  S.  386,  52  L.  Ed.  540,  28  S. 
Ct.  392:  Marbles  v.  Creecy,  215  U.  S.  63, 
54  L.  Ed.  92,  30  S.  Ct.  32. 

When  a  person  is  held  in  custody  as  a 
fugitive  from  justice  under  an  extradition 
warrant,  in  proper  form,  and  showing 
upon  its  face  all  that  is  required  by  law 
to  be  shown  as  a  prerequisite  to  its  be- 
ing issued,  he  should  not  be  discharged 
from  custody  unless  it  is  made  clearly 
and  satisfactorily  to  appear  that  he  is  not 
a  fugitive  from  justice  within  the  mean- 
ing of  the  constitution  and  laws  of  the 
United  States.  McNichols  v.  Pease.  207 
U.   S.  100,  112.  52  L.   Ed.  121,  28  S.  Ct.  58. 

An  extradition  requisition  reciting  that 
the  accused  was  charged  by  indictment 
with  a  specified  crime  and  had,  become  a 
fugitive  from  the  justice  of  that  state,  ac- 
companied by  a  certified  copy  of  the  in- 
dictment, makes  a  prima  facie  case 
against  the  accused  as  an  alleged  fugitive 
from  justice,  and,  in  the  absence  of  proof 
to  the  contrary,  authorizes  the  executive 
of  the  surrendering  state  to  issue  his  war- 


574 


Vol.  VI. 


EXTRADITION. 


226-228 


G.    Habeas  Corpus— 1.    Right  of  Accused  to  Invoke;  Aid.— See  note  58. 

3.  Review  of  Governor's  Decision. — How  Far  Decision  May  Be  Re- 
viewed.— See  note  62. 

H.  Procedure — 1.  The  Indictment. — Necessity  of  Indictment  or  Affi- 
davit.— The  executive  of  a  state  upon  whom  demand  is  made  for  the  arrest 
and  extradition  of  a  fugitive  criminal  has  no  power  to  issue  his  warrant  of  arrest 
for  a  crime  committed  in  another  state,  so  far  as  any  authority  has  been  con- 
ferred upon  him  by  the  federal  statutes,  unless  he  is  furnished  with  a  copy  of 
the  indictment  or  affidavit  required  by  the  provisions  of  Rev.  St.  U.  S.  §  5278 
(U.  S.  Comp.  St.  1901,  p.  3597),  governing  interstate  extradition.'^^''' 


rant  for  the  arrest  and  delivery  of  the  al- 
leged criminal.  Marbles  v.  Creecy,  215 
U.  S.  63,  54  L.   Ed.  92,  30  S.   Ct.  32. 

Suggestion  that  fugitive  will  not  re- 
ceive a  fair  and  impartial  trial.— The 
mere  suggestion  that  the  alleged  fugitive 
from  the  justice  of  another  state,  because 
of  his  race  and  color,  will  not  receive  a 
fair  and  impartial  trial,  and  will  not  be 
adequately  protected  against  violence 
while  in  custody,  does  not  require  the  ex- 
ecutive of  the  state  in  which  he  may  be 
found  to  refuse  to  surrender  him  on  de- 
mand made  in  conformity  with  the  fed- 
eral constitution  and  laws,  nor  furnish 
a  ground  for  his  release  on  habeas  cor- 
pus. Marbles  v.  Creecy,  215  U.  S.  63,  54 
L.  Ed.  92,  30  S.  Ct.  32.  See  ante,  "Pre- 
sumption as  to  Conduct  of  Trial,"  II, 
D,  5,  e. 

Rebuttal. — The  prima  facie  case  arising 
on  habeas  corpus  from  an  extradition 
warrant,  regular  on  its  face,  and  the  re- 
quisition papers  on  which  it  was  issued, 
charging  a  larceny  from  the  person,  com- 
mitted at  Kenosha,  Wisconsin,  on  a  spe- 
cified day,  is  not  rebutted  by  affidavits 
which  import  nothing  more  than  that  the 
accused  was  in  Chicago,  Illinois,  at  1 
o'clock  and  during  the  whole  of  the  after- 
noon of  that  day,  although  the  petition 
for  habeas  corpus  contains  an  allegation 
that  the  accused  had  heard  the  person 
against  whom  the  crime  is  alleged  to  have 
been  committed  testify  in  another  habeas 
corpus  proceeding  that  such  crime  was 
committed  at  2  o'clock  in  the  afternoon 
of  the  day  named.  McNichols  v.  Pease, 
207  U.  S.  100,  52  L.  Ed.  121,  28  S.  Ct.  5S. 

Whether  the  alleged  criminal  is  or  is 
not  such  fugitive  from  justice  may,  so  far 
as  the  constitution  and  laws  of  the  United 
States  are  concerned,  be  determined  by 
the  executive  upon  whom  the  demand  is 
made  in  such  way  as  he  deems  satisfac- 
tory, and  he  is  not  obliged  to  demand 
proof  apart  from  proper  requisition  pa- 
pers from  the  demanding  state,  that  the 
accused  is  a  fugitive  from  justice.  Mc- 
Nichols V.  Pease,  207  U.  S.  100,  109,  52 
L.  Ed.  121,  28  S.  Ct.  58;  Marbles  v. 
Creecy,  215  U.  S.  63,  54  L.  Ed.  92,  30  S. 
Ct.  32. 

226-58.  Right  to  invoke  aid. — A  pro- 
ceeding by  habeas  corpus  in  a  court  of 
competent  jurisdiction   is   appropriate   for 


determining  whether  the  accused  is  sub- 
ject, in  virtue  of  the  warrant  of  arrest, 
to  De  taken  as  a  fugitive  from  the  justice 
of  the  state  in  which  he  is  found  to  the 
state  whose  laws  he  is  charged  with  vio- 
latmg.  McNichols  i;. 'Pease,  207  U.  S.  100, 
109,   52   L.    Ed.    121,  28   S.   Ct.   58. 

One  arrested  and  held  as  a  fugitive 
from  justice  is  entitled,  of  right,  upon 
habeas  corpus,  to  question  the  lawfulness 
of  his  arrest  and  imprisonment,  showing 
by  competent  evidence,  as  a  ground  for 
his  release,  that  he  was  not,  within  the 
meaning  of  the  constitution  and  laws  of 
the  United  States,  a  fugitive  from  the 
justice  of  the  demanding  state,  and 
thereby  overcoming  the  presumption  to 
the  contrary  arising  from  the  face  of  an 
extradition  warrant.  McNichols  v.  Pease, 
207  U.  S.  100,  109,  52  L.  Ed.  121,  28  S.  Ct. 
58.     And  see  post,  HABEAS  CORPUS. 

227-62.  How  far  it  may  be  reviewed. — 
When  it  appears,  that  the  affidavit  in 
question  was  regarded  by  the  executive 
authority  of  the  respective  states  con- 
cerned as  a  sufficient  basis,  in  law,  for 
their  acting,  the  one  in  making  a  re- 
quisition, the  other  in  issuing  a  warrant 
for  the  arrest  of  the  alleged  fugitive,  the 
jtidiciary  should  not  interfere,  on  habeas 
corpus,  and  discharge  the  accused,  upon 
technical  grounds,  and  unless  it  be  clear 
that  what  was  done  was  in  plain  con- 
travention of  law.  Compton  v.  Alabama, 
214  U.  S.  1,  8,  53  L.  Ed.  885,  29  S.  Ct.  605; 
Ex  parte  Hof¥stot,  180  Fed.  240,  oider  af- 
firmed in  Hoffstot  V.  Flood,  218  U.  S.  665, 
54  L.  Ed.  1201.  31  S.  Ct.  222. 

The  objection  that  an  extradition  re- 
quisition contains  a  clause  that  the  de- 
manding state  will  not  be  responsible  for 
any  expense  attending  the  arrest  and  de- 
livery of  the  alleged  fugitive  is  not  avail- 
able to  the  accused  on  habeas  corpus  to 
inquire  into  the  legality  of  the  extradition 
proceedings,  but  is  a  matter  for  the  con- 
sideration of  the  executive  of  the  sur- 
rendering state  when  he  receives  the  of- 
ficial demand  for  the  surrender  of  the  al- 
leged fugitive  criminal.  Marbles  v. 
Creecy,  215  U.  S.  63,  54  L.  Ed.  92,  30  S. 
Ct.    32. 

228-70a.  Necessity  of  indictment  or  affi- 
davit.— Compton  V.  Alabama,  214  U.  S.  1, 
53    L.    Ed.   885,   29    S.    Ct.   605. 

Affidavit    before    notary    sufficient. — An 


575 


228-229 


EXTRADITION. 


Vol.  VI. 


Sufficiency  of. — The  indictment,  in  order  to  constitute  a  sufficient  charge  of 
crime  to  warrant  interstate  extradition,  need  show  no  more  than  that  the  ac- 
cused was  substantially  charged  with  crime.'^^'' 

J.  Extraditing  Twice  for  Same  Offense. — A  second  indictment  for  the 
same  offense  may  serve  as  the  basis  for  the  second  extradition  of  a  person  as  a 
fugitive  from  justice  without  violating  any  rights  secured  to  him  by  the  federal 
constitution  or  laws,  where  the  first  indictment,  on  which  the  accused  was  origi- 
nally extradited,  was  dismissed  on  motion  of  the  state's  attorney  before  the  ac- 
cused was  placed  in  jeopardy." ^^ 

IV.  Trial  on  Another  Charge. 

A.  In  International  Cases. — Prosecution  for  Subsequent  Offense — Op- 
portunity to  Return. — Immunity  from  trial  for  an  offense  committed  by  a 
person  after  his  extradition  until  he  has  been  afforded  an  opportunity  to  return 
to  the  country  whence  he  was  extradited  was  not  given  by  the  provisions  of  the 
treaties  with  Great  Britain  of  August  9,  1842  (8  Stat.  576),  and  July  12,  1889 
(26  Stat.  1508),  or  Rev.  St.  U.  S.  §  5275  (U.  S.  Comp.  St.  1901,  p.  3596),  under 
which  such  immunity  as  to  prior  offenses  only  is  secured. ^*^^ 


affidavit  before  a  notary  who,  under  Civ. 
Code  Ga.  1895,  p.  982,  §  4052,  is  ex  officio 
a  justice,  must  be  regarded  as  satisfying 
the  requirement  of  the  provisions  of  Rev. 
St.  U.  S.  (Pen.  Code  1895,  p.  93,  §  293), 
§  5278  (U.  S.  Comp.  St.  1901,  p.  3597), 
governing  interstate  extradition,  that 
such  affidavit  be  made  before  a  magis- 
trate, where  the  governor  of  Georgia  has 
based  his  requisition  upon  such  affidavit, 
and  a  warrant  has  been  issued  thereon  by 
the  governor  of  the  state  upon  whom  the 
demand  for  arrest  and  extradition  was 
made.      Compton    v.    Alabama,    214    U.    S. 

1,  53   L.   Ed.   885,   29    S.   Ct.   605. 

228-71a.  Sufficiency  of. — Pierce  v. 
Creecy,  210  U.  S.  387,  405,  52  L.  Ed.  1113, 
28  S.  Ct.  714;  Strassheim  v.  Daily,  221  U. 
S.   280,   55   L.    Ed.   735,   31   S.   Ct.   558. 

An  indictment,  whether  good  or  bad  as 
pleading,  which  unmistakably  describes 
every  element  of  the  criine  of  false  swear- 
ing, as  defined  by  Pen.  Code  Tex.  1895, 
art.  209,  is  a  charge  of  crime  within  the 
meaning  of  Const.  U.  S.,  art.  4,  §  2,  par. 

2,  regulating  interstate  extradition,  judg- 
ment, Ex  parte  Pierce  (C.  C.  1907),  155 
F.  663,  affirmed.  Pierce  v.  Creecy,  210  U. 
S.  387,  52  L.   Ed.  1113,  28   S.   Ct.  714. 

In  Pierce  v.  Cr-eecy,  210  U.  S.  387,  52  L. 
Ed.  H13,  28  S.  Ct.  714.  the  court  said,  in 
passing  upon  the  sufficiency  of  the  indict- 
ment, if  more  were  required  of  the  in- 
dictment than  substantially  charging  ac- 
cused with  the  crime,  it  would  impose 
upon  courts  in  the  trial  of  writs  of  ha- 
beas corpus,  the  duty  of  a  critical  ex- 
amination of  the  laws  of  states  with 
whose  jurisprudence  and  criminal  pro- 
cedure they  can  have  only  a  general  ac- 
quaintance. Such  a  duty  would  be  an 
intolerable  burden,  certain  to  lead  to  er- 
rors in  decision,  irritable  to  the  just  pride 
of  the  states  and  fruitful  of  miscarriages 
of  justice.     The  duty  ought  not  to  be  as- 


sumed unless  it  is  plainly  required  by  the 
constitution,  and  there  is  nothing  in  the 
letter  or  the  spirit  of  that  instrument 
which  requires  or  permits  its  perform- 
ance. 

A  count  in  an  indictment  for  obtaining 
money  by  false  pretenses,  alleging  that 
money  was  obtained  from  the  state  by 
falsely  representing  that  certain  machin- 
ery sold  to  the  state  was  new,  whereas  in 
tact  it  was  secondhand,  substantially 
charges  a  crime  so  as  to  preclude  a  dis- 
charge on  habeas  corpus  in  extradition 
proceedings,  although  the  contract  of 
sale  contains  guaranty  and  testing  clauses, 
which  relate,  however,  only  to  workman- 
ship and  freedom  from  defects.  Strass- 
heim V.  Daily,  221  U.  S.  280,  55  L.  Ed. 
735,   31    S.    Ct.    558. 

229-78a.  Extraditing  twice  for  same  of- 
fense.—Bassing  V.  Cady,  208  U.  S.  386,  52 
L.  Ed.  540,  28  S.  Ct.  392.  See  ante,  "  'Fugi- 
tive' Defined,"  III,  D,  2,  a. 

229-80a.  Prosecution  for  subsequent  of- 
fense— Opportunity  to  return. — Collins  v. 
O'Neil,  214  U.  S.  113,  53  L.  Ed.  933,  29 
S.   Ct.  573. 

An  extradited  person  is  given  no  right 
to  have  his  trial  brought  to  a  conclusion 
before  he  can  be  tried  for  an  offense  sub- 
sequently committed  by  the  provisions  of 
the  treaties  with  Great  Britain  of  August 
9,  1842  (8  Stat.  576),  and  July  12,  1889  (26 
Stat.  1508),  or  Rev.  St.  U.  S.,  §  5275  (U. 
S.  Comp.  St.  1901,  p.  3596),  under  which 
he  is  entitled  to  a  reasonable  time  to  re- 
turn to  the  country  whence  he  was  extra- 
dited before  he  can  be  tried  for  another 
offense  committed  prior  to  his  extradition. 
Collins  i:  O'Neil,  214  U.  S.  113,  53  L.  Ed. 
933    29  S    Ct    573 

lin^Coliins  v.  O'Neil,  214  U.  S.  113,  53 
L.  Ed.  933,  29  S.  Ct.  573,  the  court  said: 
"It  is  impossible  to  conceive  of  represen- 
tatives of  two  civilized  countries  solemnly 


576 


231-241 


FAILURE. 


Vol.  VI. 


—See  note  231-2. 
REMEDIES.— See 


EXTRAORDINARY. 
EXTRAORDINARY 

TiONS ;    Mandamus. 

EXTRA  PAY.— See  ante,  Army  and  Navy   p 
EXTRATERRITORIAL.— See   ante,  Courts,    p. 

L,A\\'. 

FACTORS  AND  COMMISSION  MERCHANTS.— See  the  title  Factors  and 
Commission  Merchants,  vol.  6,  p.  232,  and  references  there  given. 
FAILURE.— See  note  241-2. 


post,    Habeas    Corpus;     Injunc- 

150. 
398;    post,    International 


entering  into  a  treaty  of  extradition,  and 
therein  providing  that  a  criminal  sur- 
rendered according  to  demand,  for  a 
crime  that  he  has  committed,  if  subse- 
quently to  his  surrender  he  is  guilty  of 
murder  or  treason  or  other  crime  is, 
nevertheless,  to  have  the  right  guaranteed 
to  him  to  return  unmolested  to  the  coun- 
try which  surrendered  him.  We  can  im- 
agine no  country,  by  treaty,  as  desirous 
of  exacting  such  a  condition  of  surrender 
or  any  country  as  willing  to  accept  it. 
When  a  treaty  or  statute  contains  a  pro- 
vision that  the  party  surrendered  shall  be 
tried  for  no  other  offense  until  he  has  had 
an  opporttmity  to  leave  the  country,  the 
meaning  of  such  a  provision  is  perfectly 
plain,  and  must  receive  a  reasonable  and 
sensible  construction.  The  party  pro- 
ceeded against  must  not  be  tried  for  any 
other  offense  existing  at  the  time  when  he 
was  extradited  (whether  at  the  time  of 
such  extradition  it  had  or  had  not  been 
discovered),  until  he  shall  have  had  a  rea- 
sonable time  to  return  to  the  country 
from  which  he  was  taken,  after  his  trial 
or  other  termination  of  the  proceeding. 
That  such  privilege  should  be  accorded 
to  one  who  commits  a  crime  after  his  sur- 
render to  a  demanding  government  lacks 
all  semblance  of  reason  or  sense." 

231-2.  Extraordinary  emergency. — The 
building  of  public  levee  on  the  Missis- 
sippi River  in  the  eastern  district  of  Lou- 
isiana can  not  be  said  to  present  at  all 
times  an  extraordinary  emergency,  within 
the  meaning  of  the  Act  of  August  1,  1892, 
c.  352,  27  Stat.  340,  restricting  hours  of 
labor  of  laborers  and  mechanics  employed 
by  the  government  or  by  any  contractor 
or  subcontractor,  upon  any  of  the  public 
works  of  the  United  States,  and  making 
it  unlawful  for  any  officer  of  the  govern- 
ment or  any  such  contractor  to  require  or 
permit  such  laborers  to  work  a  longer 
time  "except  in  cases  of  extraordinary 
emergency."  It  has  been  decided  that  no 
mere  requirement  of  business  convenience 
or  pecuniary  advantage  is  an  extraordi- 
nary emergency  within  the  meaning  of 
the  act.  Besides,  the  extraordinary  emer- 
gency which  relieves  from  the  act  is  not 
one  that  is  contemplated  and  inheres  nec- 
essarily in  the  work.  It  is  a  special  oc- 
currence, and  the  phrase  used  emphasizes 
this.  It  is  not  an  emergency  simply  which 
is  expressed  by  it,  something  merely  sud- 

12  U  S  Enc— 37  577 


den  and  unexpected,  but  an  extraordi- 
nary one,  one  exceeding  the  common  de- 
gree. The  phrase  "continuing  extraordi- 
nary emergency"  is  self-contradictory. 
United  States  v.  Garbish,  222  U.  S.  257, 
258,  56  L.  Ed.  190,  32  S.  Ct.  77.  See  post, 
LABOR. 

241-2.    Failure    to    complete    contract. — 
In    a    government    contract    for    dredging 
made   by  a  copartnership,   to  begin   work 
on  or  before   March   1,   1899,   and  to  com- 
plete it    on  or    before    July    1,    1902,    one 
term    of    the    contract    was    that    if    they 
should  fail  to  begin  on  time  or  should,  "in 
the  judgment   of  the   engineer  in  charge, 
fail  to  prosecute   faithfully  and   diligently 
the  work  in  accordance  with  the  specifica- 
tions   and    requirements    of   this    contract, 
then,  in  either  case,  the  party  of  ihe  first 
part,    or  his    successor  legally    appointed, 
shall  have  power,  with  the  sanction  of  the 
chief  of  engineers,  to  annul  this   contract 
by  giving  notice  in  writing  to  that  effect.'' 
Toward    the    end    of    the    contract,    four 
paragraphs   further  on   than   the  last,   was 
the  further  agreement:     "In  case  of  failure 
on  the  part  of  the  party  of  the  second  part 
to  complete  this  contract  as  specified  and 
agreed  upon,   that  all  sums  due  and  per- 
centage retained  shall  thereby  be  forfeited 
to   the    United    States,    and    that    the    said 
United  States  shall  also  have  the  right  to 
recover   any   or   all   damages   due   to   such 
failure  in  excess  of  the  sums  so  forfeited, 
and  also  to  recover  from  the  party  of  the 
second  part,  as  part  of  said  damages,  what- 
ever sums  may  be  expended  by  the  party 
of  the    first    part  in    completing    the    said 
contract,    in    excess    of    the    price    herein 
stipulated  to  be  paid   to   the  party  of  the 
second    part    for    completing    the    same." 
The    words    "in    case    of    failure  ^^  *  *  to 
complete    this    contract    as    specified    and 
agreed  upon,"  on  their  face  mean  failure 
to  complete  by  July  1,  1902,  not  failure  to 
complete  because  turned  off  by  the  engi- 
neer in  charge,  a  year  and  six  months  be- 
fore   that    time    arrived,    when    competent 
persons    might    do   the    job.     The    earlier 
clause    under   which    the    so-called    annul- 
ment took  place  provides  for  no  such  con- 
sequence,   but    only    for    a    forfeiture    of 
reserved     percentage     and     money     due. 
United   States   v.    O'Brien,   220   U.    S.   321, 
325,  55  L.  Ed.  481,  31  S.  Ct.  406.     See  post. 
UNITED  STATES. 


242-244 


FBBS. 


Vol.  VL 


FAILURE  OF  CONSIDERATION.— See  ante,  Bills,  Notes  and  Checks,  p. 
204.    And  see  ante,  Contracts,  p.  373,  and  references  there  given. 

FAIR.— See  note  a. 

FAITH. — See  post,  Good  Faith,  and  references  there  given. 

FAITH  AND  CREDIT.— See  post,  Foreign  Judgments,  Records  and  Judi- 
cial Proceedings. 

FALSE  ENTRY. — See  ante,  Banks  and  Banking,  p.  184. 

FALSE  IMPRISONMENT.— See  t^ie  title  False  Imprisonment,  vol.  6,  p. 
242,  and  references  there  given. 

FALSE  PRETENSES  AND  CHEATS.— See  False  Pretenses  and  Cheats, 
vol.  6,  p.  243,  and  references  there  given.  In  addition,  as  to  a  count  in  an  in- 
dictment for  obtaining  money  by  false  pretenses,  substantially  charging  a  crime 
so  as  to  preclude  a  discharge  on  habeas  corpus  in  extradition  proceedings,  see 
ante.  Extradition,  p.  571. 

FALSE  REPRESENTATIONS.— See  post.  Fraud  and  Deceit. 

FALSIFICATION  OF  PUBLIC  DOCUMENTS.— See  post.  Forgery  and 
Counterfeiting. 

FALSIFYING  RECORDS. — See  post,  Indictments,  Ineormations,  Pre- 
sentments AND  Complaints;  Records. 

FAMILY  SETTLEMENTS. — See  ante,  Executors  and  Administrators, 
p.  564;   post,  Fraud  and  Deceit. 

FAVORED  NATION  CLAUSE.— See  post.  Treaties. 

FEDERAL  CONSTITUTION.— See  ante.  Constitutional  Law,  p.  264. 

FEDERAL  CORPORATION.— See  note  2a. 

FEDERAL  COURTS.— See  ante.  Courts,  p.  398,  and  references  there  given. 

FEDERAL  EMPLOYERS'  LIABILITY  ACT.— See  post.  Fellow  Servants: 
Master  and  Servant. 

FEDERAL  QUESTION.— See  ante,  Appeal  and  Error,  p.  34;  Courts,  p. 
398:  post.  Removal  oe  Causes. 

FEES.— See  note  3. 


242-a.  Process  fair  on  its  face. — "The 
case  falls  clearly  within  the  rule,  often  ap- 
plied in  this  and  other  courts,  which  is 
well  stated  in  Cooley  on  Torts,  3d  ed..  vol. 
2,  p.  888,  as  follows:  'The  process  that 
shall  protect  an  officer  must,  to  use  the 
customary  legal  expression,  be  fair  on  its 
lace.  By  this  is  not  meant  that  it  shall 
appear  to  be  perfectly  regular,  and  in  all 
respects  in  accord  with  proper  practice, 
and  after  the  most  approved  form;  but 
what  is  intended  is,  that  it  shall  apparently 
be  process  lawfully  issued,  and  such  as 
the  officer  might  lawfully  serve.  More 
precisely,  that  process  ma}^  be  said  to  be 
fair  on  its  face  which  proceeds  from  a 
court,  magistrate,  or  body  having  author- 
ity of  law  to  issue  process  of  that  nature, 
and  which  is  legal  in  form,  and  on  its  face 
contains  nothing  to  notify  or  fairlj'  apprise 
the  officer  that  it  is  issued  without  au- 
thority. When  such  appears  to  be  the 
process,  the  officer  is  protected  in  making 
service,  and  he  is  not  concerned  with  any 
illegalities  that  may  exist  back  of  it.'  " 
Bryan  v.  Ker,  222  U.  S.  107,  56  L.  Ed.  114, 
117,  32  S.  Ct.  26.  See  post,  SUMMONS 
AND  PROCESS. 

244-2a.  Federal  corporation. — A  corpo- 
ration   originally   incorporated   in   the    In- 


dian Territory  under  the  Arkansas  stat- 
utes which  were  put  in  force  therein  by 
the  act  of  congress  of  February  18,  1901 
(31  Stat,  at  L.  794,  chap.  379),  became  an 
Oklahoma  corporation  when  that  state 
was  admitted  to  the  Union,  must  be  re- 
garded for  jurisdictional  purposes  as  a 
citizen  of  that  state  and  not  a  federal 
corporation.  Shulthis  z'.  McDougal,  225 
U.  S.  .561.  56  L.  Ed.  1205,  32  S.  Ct.  704.  See 
ante.  COURTS,  p.  398. 

244-3.  Fee  to  do  business  within  state  a 
tax. — "The  statutory  requirement  that  the 
telegraph  company  shall,  as  a  condition 
of  its  rights  to  engage  in  local  business  in 
Kansas,  first  pay  into  the  state  school 
fund  a  given  per  cent  of  its  authorized 
capital,  representing  all  of  its  business  and 
property  everj^where,  is  a  burden  on  the 
company's  interstate  commerce  and  its 
privilege  to  engage  in  that  commerce,  in 
that  it  makes  both  such  coinmerce,  as 
conducted  by  the  company,  and  its  prop- 
erty outside  of  the  state,  contribute  to  the 
support  of  the  state's  schools.  Such  is  the 
necessary  effect  of  the  statute,  and  that 
result  can  not  be  avoided  or  concealed  by 
calling  the  exaction  of  such  a  per  cent  of 
its  capital  stock  a  fee  for  the  privilege  of 
doing  local  business.     To  hold  otherwise 


578 


Vol.  VI.  FELLOW  SERVANTS.  247-248 

FEES   AND   EMOLUMENTS.— See  ante,   Ci^Erks  of  Court,  p.   241;    Du 
Facto  Officers,  p.  460;  post,  Public  Officers. 


FELLOW  SERVANTS. 
II.  History  and  Origin  of  Doctrine,  i7^J. 

III.  Operation  of  Doctrine,  579. 

A.  At  Common  Law,  579. 

4.  With  Respect  to  Character  of  Negligent  Act,  579. 

b.  Negligence  in  Discharge  of  Positive  or  Nonassignable  Duties 

of  Master,  579. 

(1)  In  General,  579. 

(2)  Safe  Place  to  Work,  Safe  Tools,    Machinery,  Appli- 

ances, etc.,  580. 
(a)   In  General,   580. 

6.  Servants  in  Separate  Departments,  580. 

c.  Particular  Employments,  580. 

(1)  Employees  of  Railroads,  580. 

7.  Concurrent  Negligence  of  Master  or  Vice  Principal  with  That  of 

Fellow  Servant,  580. 
10.  Servants  Who  Are  or  Are  Not  Fellow  Servants,  581. 

C.  Federal  Employer's  Liability  Acts,  581. 

IV.  Actions,  581. 

A.  What  Law  Governs,  581. 

B.  Question  of  Law  and  Fact,  581.  ■ 

D.  Instructions,  582. 

CROSS  REFERENCES. 

See  the  title  Fellow  Servants,  vol.  6,  p.  245,  and  references  there  given. 
In  addition,  see  ante,  Courts,  p.  398;  post.  Interstate  and  Forfign  Com- 
merce; Master  and  Servant. 

II.  History  and  Origin  of  Doctrine. 

Power  of  Courts  to  Change.— The  doctrine  as  to  fellow  servants  may  be, 
as  it  has.  been  called,  a  bad  exception  to  a  bad  rule,  but  it  is  established,  and  it  is 
not  open  to  courts  to  do  away  with  it  upon  their  personal  notions  of  what  is  ex- 
pedient,''^ the  legislature  must  act  if  any  change  is  to  be  made  in  the  fellow- 
servant  doctrine.'^ 

III.  Operation  of  Doctrine. 

A.  At  Common  Law — 4.  With  Respect  to  Character  of  Negligent  Act 
— b.  Negligence  in  Discharge  of  Positive  or  Nonassignable  Duties  of  Master — 
(1)  In  General. — See  note  15. 

is    to    allow    form    to    control    substance.  247-7a.    Power  of    court     to     change. — 

The     statute     here     involved     prohibits     a  Beutler  z'.   Grand  Trunk,  etc.,   R.   Co.,  224 

foreign  corporation  from  doing  any  local  U.  S.  85,  5G  L.   Ed.  679,  32  S.  Ct.  402,  cit- 

business   in   Kansas   unless   such   corpora-  ing   Kuhn   v.   Fairmont    Coal   Co.,   215   U. 

tion  first  pays  into  the  state's  school  fund  S.   349,   54   L.   Ed.   228,   30   S.   Ct.   140;   and 

a  tax,  or,  which  is  the  same  thing,  a  fee,  Northern  Pac.   R.   Co.  v.  Hambly,  154  U. 

in  the  form  of  a  given  per  cent  of  all  its  S.  349,  360,  38  L.  Ed.  1009,  14  S.  Ct.  983. 
capital,     representing     all     of     its     busi-  247-7b.     Power    of    legislature.— Beutler 

ness,  property  and  mterests  everywhere.  ^.    Grand   Trunk,    etc..    R.    Co.,   224   U.    S. 

Western  Union  Tel.   Co.  v.   Coleman,   216  §5    55  ^    Ed    679    3^  S    Ct    402 
U.  S^l    37,  54    L.  Ed^  355,  30    S.Ct.    190.  '^^^^^^     McCabe,    etc.,    Constr.     Co.      z: 

See  Pullman  Co.  z,.  Kansas    216  U    S    56,  ^^-^  g^g  U.  S.  275,  52  L.  Ed.  788,  28  S. 

62,  54  L.  Ed.  378,  30  S.  Ct.  232.     See,  also,  p      .      '  ' 

post,    INTERSTATE    AND    FOREIGN  ^^-  ^^**- 
COMMERCE. 

579 


248-266 


FELLOW  SBRVAXTS. 


\o\.  VI. 


(2)  Safe  Place  to  Work,  Safe  Tools,  Machinery,  Appliances,  etc. —  (a)  In 
General. — The  master  must  provide  a  safe  and  suitable  place  and  structure  in 
and  upon  which  his  servants  are  to  do  their  work  and  the  action  of  employees  to 
whom  he  delegates  this  duty  is  the  action  of  the  master  who  is  liable  for  the  neg- 
ligence of  his  representative  or  servant  in  its  performance. ^^^ 

6.  Servants  in  Separate  Departments — c.  Particular  Employments — (1) 
Employees  of  Railroads. — Laborers  Employed  upon  a  Railroad  Track  and 
Employees  of  a  Moving  Train. — See  note  69. 

7.  Concurrent  Negligence  of  Master  or  \'ice  Principal  with  That  of 
Fellow  Servant. — See  note  74. 


248-16a.     Duty   as   to   place   to    work. — 

McCabe,  etc.,  Constr.  Co.  v.  Wilson,  209 
U.  S.  275,  52  L.  Ed.  788,  28  S.  Ct.  558; 
Standard  Oil  Co.  v.  Brown,  218  U.  S.  78. 
54  L.  Ed.  939.  30  S.  Ct.  669. 

264-69.  Fireman  and  superintendent  of 
construction  and  bridge  foreman. — A  fire- 
man employed  on  a  locomotive  and  en- 
gaged in  the  movement  of  a  train  is  not 
a  fellow  servant  with  the  superintendent 
of  construction  and  the  foreman  of  a 
bridge  gang,  who  are  present  and  engaged 
in  supervising  and  directing  the  work  on 
the  bridge.  McCabe,  etc.,  Constr.  Co.  v. 
Wilson,  209  U.  S.  275.  52  L.  Ed.  788,  28 
S.  Ct.  558,  affirming  17  Okl.  355,  87  P. 
320. 

These  latter  employees  represented  the 
principal  in  an  entirely  different  line  of 
employment  from  that  in  which  the  plain- 
tiff was  engaged,  were  discharging  a 
positive  duty  of  the  master  to  provide  a 
safe  place  and  suitable  place  and  struc- 
tures in  and  upon  which  his  employees 
are  to  do  their  work,  and  in  discharging 
that  duty  they,  and  not  the  plaintiff, 
represented  the  master.  McCabe,  etc.. 
Constr.  Co.  v.  Wilson,  209  U.  S.  275,  52 
L.  Ed.  788,  28  S.  Ct.  558,  following  Union 
Pac.  R.  Co.  V.  O'Brien,  161  U.  S.  451, 
40  L.   Ed.  766,  16   S.   Ct.   618. 

A  railway  engineer  and  a  section  fore- 
man are  both  fellow  servants  of  a  section 
hand,  so  that  the  latter  can  not  recover 
from  tlie  railway  company  for  injuries  re- 
sulting from  their  negligence.  Texas,  etc., 
R.  Co.  7-.  Bourman,  212  U.  S.  536,  53  L. 
Ed.  641,  29  S.  Ct.  319;  Beutler  v.  Grand 
Trunk,  etc.,  R.  Co.,  224  U.  S.  85,  56  L. 
Ed.   679.  32   S.   Ct.  402. 

"Both  the  engineer  and  the  section 
foreman  were  fellow  servants  of  the  plain- 
tiff; and.  if  the  plaintiff's  injury  was 
caused  by  the  negligence  of  either,  the 
law,  as  it  many  times  has  been  declared 
h\  this  court,  will  not  permit  a  recovery. 
Baltimore,  etc.,  R.  Co.  v.  Baugh,  149  U.  S. 
368.  37  L.  Ed.  772,  13  S.  Ct.  914;  North- 
ern Pac.  R.  Co.  V.  Hambly,  154  U.  S.  349. 
38  L.  Ed.  1009,  14  S.  Ct.  983;  Central  R. 
Co.  V.  Keegan,  160  U.  S.  259,  40  L.  Ed. 
418.  16  S.  Ct.  269;  Northern  Pac.  R.  Co.  v. 
Peterson.  162  U.  S.  346,  40  L.  Ed.  994.  16 
S.  Ct.  843;  Northern  Pac.  R.  Co.  v. 
Charless,   162  U.   S.   359,  40  L.   Ed.  999,   16 


S.  Ct.  848;  Martin  v.  Atchison,  etc.,  R.  Co., 
166  U.  S.  399,  41  L.  Ed.  1051,  17  S.  Ct. 
603;-  Alaska  Min.  Co.  v.  Whelan,  168  U. 
S.  86,  42  L.  Ed.  390,  18  S.  Ct.  40;  New 
England  R.  Co.  v.  Conroy,  175  U.  S.  323, 
44  L.  Ed.  181,  20  S.  Ct.  85;  Northern  Pac. 
R.  Co.  V.  Dixon,  194  U.  S.  338,  48  L.  Ed. 
1006,  24  S.  Ct.  683."  Texas,  etc.,  R.  Co. 
V.  Bourman,  212  U.  S.  536,  54  L.  Ed.  641, 
29  S.  Ct.  310. 

An  employee  at  work  in  the  repair  yard 
of  a  railroad  is  a  fellow  servant  of  mem- 
bers of  an  engine  and  switching  crew 
by  whose  negligence  in  running  a  car 
needing  repair  from  the  general  tracks 
into  the  special  yard  the  former  is  killed. 
Beutler  v.  Grand  Trunk,  etc.,  R.  Co.,  224 
U.  S.  85,  56  L.  Ed.  679,  32  S.  Ct.  402. 

No  testimony  can  shake  the  obvious 
fact  that  the  character  of  their  respective 
occupations  brought  the  people  engaged 
in  them  into  necessary  and  frequent  con- 
tact, although  they  may  have  had  no  per- 
sonal relations.  Every  time  that  a  car 
was  to  be  repaired  it  had  to  be  switched 
into  the  repair  yard.  There  is  no  room 
for  the  exception  to  the  rule  that  exists 
where  the  negligence  consists  in  the  un- 
disclosed failure  to  furnish  a  safe  place 
to  work  in;  an  exception  that  prehaps  has 
been  pushed  to  an  extreme  in  the  effort 
to  limit  the  rule.  Santa  Fe  Pac.  R.  Co. 
V.  Holmes.  202  U.  S.  438,  50  L.  Ed.  1094, 
26  S.  Ct.  676;  McCabe,  etc.,  Constr.  Co. 
V.  Wilson,  209  U.  S.  275,  52  L.  Ed.  788,  28 
S.  Ct.  558;  Beutler  v.  Grand  Trunk,  etc., 
R.  Co.,  224  U.  S.  85,  56  L.  Ed.  679,  32  S. 
Ct.  402. 

266-74.  Concurring  negligence  of  mas- 
ter and  fellow  servant. — Concurring  neg- 
ligence of  the  master  and  a  fellow  serv- 
ant does  not  exclude  the  master's  liability 
if  his  negligence  in  failing  to  provide  and 
maintain  a  safe  place  to  work  contributed 
to  the  injury.  Judgment  (1907),  152  F.  120. 
81  C.  C.  A.  338,  11  L.  R.  A.  (N.  S.),  684, 
reversed.  Kreigh  v.  Westinghouse,  etc., 
Co.,  214  U.  S.  249,  53  L.  Ed.  984.  29  S.  Ct. 
619,  follows  Grand  Trunk  R.  Co.  v.  Cum- 
mings.  106  U.  S.  700.  27  L.  Ed.  266,  1  S. 
Ct.  493;  Deserant  v.  Cemllos,  etc.,  R.  Co.. 
178  U.  S.  409,  420.  44  L.  Ed.  1127,  20  S. 
Ct.  967. 

Tlie  negligence  of  a  fellow  servant  does 
not    exclude    the    master's    liability   if   the 


580 


Vol.  VI. 


FELLOW  SERVANTS. 


271 


10.  Servants  Who  Are  or  Are  Not  Fellow  Servants. — See  ante,  "Em- 
ployees of  Railroads,"  III,  A,  6,  c,  (1). 

C.  Federal  Employer's  Liability  Acts.— Among  the  departures  from  the 
common  law  made  by  the  Act  of  April  22,  1908,  35  Stat,  at  L.,  65  chap.,  149  U. 
S.  Comp.  Stat.  Supp.  1909,  p.  1071,  is  this:  The  rule  that  the  negligence  of  one 
employee  resulting  in  injury  to  another  was  not  to  be  attributed  to  their  common 
employer  is  displaced  by  a  rule  imposing  upon  the  employer  responsibility  for 
such  an  injury,  as  was  done  at  common  law  when  the  injured  person  was  not  an 
employ  ee.^*^^ 

IV.  Actions. 

A.  What  Law  Governs. — Law  applied  bv  federal  courts.  See  ante,  Courts, 
p.  398. 

B.  Question  of  Law  and  Fact. — It  may  be  that  in  the  state  court  the  ques- 
tion whether  or  not  certain  employees  of  a  railroad  were  fellow  servants  would 
be  left  to  the  jury,  but  whether  certain  facts  do  or  do  not  constitute  a  ground  of 
liability  is  in  its  nature  a  question  of  law.  To  leave  it  uncertain  is  to  leave  the 
law  uncertain.     In  the  federal  courts  the  question  is  one  of  law.^^'' 

Concurring-  Negligence  of  Master  and  Fellow  Servant. — See  ante,  "Con- 
current Negligence  of  Master  or  \'ice  Principal  with  That  of  Fellow  Servant," 
III,  A,  7. 


latter's  failure  to  warn  an  employee 
working  on  the  floor  of  a  dimly  lighted 
stable  of  the  danger  to  him  from  the  cus- 
tomary use  of  a  hole  in  the  ceiling  to  toss 
or  drop  hay  or  feed  to  the  floor  below 
contributed  to  the  injury.  (1910),  Stand- 
ard Oil  Co.  V.  Brown,  218  U.  S.  78,  54 
L.  Ed.  939.  30  S.  Ct.  669,  affirming  judg- 
ment   (1908),   31   App.   D.   C.   371. 

If  it  be  granted  that  the  servant  who 
contributed  to  the  injury  was  a  fellow 
servant  of  the  plaintiff,  and  was  negli- 
gent; it  was  nevertheless  for  the  jury  to 
say  whether  the  fault  of  the  master  con- 
tributed to  the  injury.  Kreigh  v.  West- 
inehouse.  etc.,  Co.,  214  U.  S.  249.  53  L. 
Ed.  984,  29  S.  Ct.  619;  Standard  Oil  Co.  v. 
Brown,  218  U.  S.  78,  54  L.  Ed.  939,  30  S. 
Ct.  669. 

No  reversible  error  is  committed  in 
leaving  to  the  jury  an  action  for  personal 
injuries  sustained  by  an  employee  from 
a  falling  timber,  while  he  was  digging  a 
post  hole  under  a  coal  chute  and  other 
employees  were  tearing  up  the  floor 
above  him,  with  instructions  that  if  the 
injur}'  was  due  to  the  negligence  of  the 
master  in  sending  men  to  work  above  the 
employee,  as  a  contributing  cause,  the 
master  was  liable,  but  not  if  the  injury 
was  due  only  to  the  negligence  of  fellow 
servants  in  their  \\2.y  of  performing  their 
work.  Texas,  etc.,  R.  Co.  v.  Howell,  224 
U.   S.   577,   56   L.   Ed.   892.   32   S.   Ct.   601. 

"It  was  open  to  the  jury  to  find  that 
the  usual  duty  to  take  reasonable  care  to 
furnish  a  safe  place  to  the  plaintiff  in  his 
work  remained.  They  well  might  be  of 
opinion  that  the  general  nature  of  the 
things  to  be  done  gave  no  notice  to  the 
plaintifif  that  he  was  asked  to  take  a 
necessary   risk.     .\t   the    same   time,    they 


were  warranted  in  saying  that  if  the  de- 
fendant saw  fit  to  do  the  work  above  and 
below  at  the  same  time,  it  did  so  with  the 
notice  of  the  danger  to  those  underneath, 
and  took  chances  that  could  not  be  at- 
tributed wholly  to  the  hand  through  which 
the  harm  happened.  Even  if  Howell,  the 
plaintiff,  knew  that  repairs  were  going  on 
overhead,  that  did  not  necessarily  put 
him  on  an  equality  with  his  employer,  and 
require  a  ruling  that  he  took  the  risk. 
Kreigh  v.  Westinghouse,  etc.,  Co.,  214  U. 
S.  249.  53  L.  Ed.  984,  29  S.  Ct.  619."  Texas, 
etc.,  R.  Co.  V.  Howell.  224  U.  S.  577.  56 
L.  Ed.  892,  32   S.  Ct.  001. 

271-90a.  Federal  Employers'  Liability 
Act. — Second  Employers'  Liability  Cases, 
223  U.  S.  1,  56  L.  Ed.  327.  32  S.  Ct.  169. 
Sec  post,  MASTER  AXD  SERVANT. 

Constitutionality  as  to  states. — See 
ante,  CONSTITUTIONAL  LAW.  p. 
264;  DUE  PROCESS  OF  LAW.  p.  475; 
post.  INTERSTATE  AND  FOREIGN 
COMMERCE. 

Constitutionality  as  to  District  of  Co- 
lumbia and  trustees. — See  post.  INTER- 
STATE AXD   FOREIGN  COMMERCE. 

As  abrogating  rule  as  to  assumption  of 
risk  of  employment. — See  post,  M.\STER 
AND  SERVANT. 

As  adoption  of  comparative  negligence 
rule.— See  post,  PIASTER  AND  SERV- 
ANT. 

As  prescribing  agreements,  etc..  for  ex- 
emption from  liability — Set-off  of  insur- 
ance, etc.,  contribution. — See  post.  MAS- 
TER AXD  SERVANT. 

Jurisdiction  of  state  and  federal  court. 
—See  ante.   COURTS,  p.  398. 

271-91a.  Question  of  law  and  fact. — 
Beutler  v.  Grand  Trunk,  etc..  R.  Co..  224 
U.   S.   85,   56  L.   Ed.   679,   32   S.   Ct.   402. 


581 


271-281  FIERI  FACIAS.  Vol.  VI. 

D.  Instructions. — The  refusal  to  instruct  that  an  engineer  and  a  section 
foreman  are  both  fellow  servants  of  a  section  hand  injured  in  attempting  to 
alight  from  a  moving  train,  and  that,  if  such  injury  was  caused  by  the  negligence 
of  either,  the  railway  company  is  not  liable,  is  reversible  error,  where  the  jury 
might  have  based  its  verdict  for  plaintiff  on  the  carelessness  either  of  the  sec- 
tion foreman  or  engineer. ^^'^ 

Concurring  Negligence  of  Master  and  Fellow  Servant. — See  ante,  "Con- 
current Negligence  of  Master  or  Vice  Principal  with  That  of  Fellow  Servant," 
III,  A,  7. 

FELONY. — See  ante,  Criminal  Lav^,  p.  434;  Extradition,  p.  571.  As  to 
the  terms  "treason,  felony  and  breach  of  the  peace,"  as  used  in  the  constitutional 
provision  exempting  senators  and  representatives  from  arrest,  see  post,  Priv- 
ilege. 

FEME  COVERT  OR  FEME  SOLE.— See  post.  Husband  and  Wife. 

FENCE  LAW,— See  ante.  Animals,  p.  27. 


FENCES. 

CROSS  REFERENCES. 

See  the  title  Fences,  vol.  6,  p.  272,  and  references  there  given. 
In  addition,  see  ante,  Animals,  p.  27;  post.  Public  Lands. 

Application  to  United  States. — Quaere,  do  local   fence  laws  apply  to  the 
United  States  ?i^ 

FER.ffi  NATUR.ffi.— See  ante.  Animals,  p.  27. 

FERRIES. — See  the  title  FlrriES,  vol.  6,  p.  274,  and  references  there  given. 


FIDELITY  AND  GUARANTY  INSURANCE. 

CROSS  REFERENCES. 

See  Fidelity  and  Guaranty  Insurance,  vol.  6,  p.  282,  and  references  there 
given.     See,  also,  the  title  Banks  and  Banking,  vol.  3,  pp.  96-106. 
In  addition,  see  ante.  Banks  and  Banking,  p.  184. 

An  employer  is  entitled  to  recover  upon  a  bond  of  a  surety  company  to  in- 
demnify him  against  loss  attributable  to  the  dishonesty  of  an  employee  upon 
proving  the  bond,  an  embezzlement,  and  a  breach  by  a  refusal  to  indemnify.  He 
was  not  obliged  to  aver  that  he  had  made  the  examinations  which  he  agreed 
should  be  made.  If  he  had  failed  in  that  duty,  it  was  for  the  surety  company 
to  so  plead  and  prove. ^^  Liability  on  the  bond  is  defeated  where  the  loss  was 
due  to  the  neglect  of  the  employer  to  supervise  the  conduct  of  the  employee  by 
making  such  monthly  examinations  of  his  accounts  as  it  agreed  to  make  or  have 
made.i*^ 

FIERI  FACIAS.— See  ante.  Executions,  p.  563. 

271-93a.     Instructions. — Texas,    etc.,    R.  281-la.    Right  of  employer  to  recover. 

Co.  V.  Bourman,  212  U.   S.  536,  53  L.   Ed.  —Title  Guaranty,  etc..  Co.  v.  Nichols,  224 

641,    29    S.    Ct.    319,    affirming    160    F.    452.  U.   S.  346,  56  L.   Ed.  795,  32  S.   Ct.  475. 

And  see  post,  INSTRUCTIONS.  281-lb.    Liability  defeated.— Title   Guar- 

272-la.    Light  v.   United   States,   220  U.  anty,  etc.,   Co.  v.   Nichols,  224   U.   S.  346, 

S.  523,  55   L.   Ed.  570,  31   S.  Ct.  485.               _  56    L.    Ed.   795,   32   S.   Ct.   475. 

582 


Vol.  VI.  FOLIO  CHARGE.  299-301 

FINAL  JUDGMENTS  OR  DECREES.— See  ante,  App^ai,  and  Error,  p.  34; 

Bill  op  Review,  p.  203. 

FINDINGS  OF  COURT.— See  ante,  Appeal  and  Error,  p.  34. 

FINES. — See  the  title  Fines,  vol.  6,  p.  284,  and  references  there  given.  In 
addition,  see  ante,  Constitutional  Law,  p.  264. 

FIRE  INSURANCE.— See  post,  Insurance. 

FIRES. — See  the  title  Fires,  vol.  6,  p.  287,  and  references  there  given.  In 
addition,  as  to  liability  for  fire  caused  by  negligent  mixture  of  coal  oil  and  gas- 
oline, see  post.  Negligence.  As  to  the  court  judicially  noticing  a  custom  in  the 
territory  of  Oklahoma  to  use  coal  oil  in  kindling  fires,  see  post.  Judicial  Notice. 


FISH  AND  FISHERIES. 

IV.  Protection  and  Regulation  of  Fish  and  Fisheries,  583. 
G.  Power  of  State  to  Regulate,  583. 
2.  In  Interstate  Rivers,  583. 

CROSS  REFERENCES. 

See  the  title  Fish  and  Fisheries,  vol.  6,  p.  291,  and  references  there  given. 
In  addition,  see  post.  Interstate  and  Foreign  Commerce;  Oysters. 

IV.  Protection  and  Regulation  of  Fish  and  Fisheries. 

G.  Power  of  State  to  Regulate — 2.  In  Interstate  Rivers. — Oregon  can 
not  under  its  concurrent  jurisdiction,  under  Act  Cong.  Feb.  14,  1839,  c.  ZZ,  11 
Stat.  383,  over  the  Columbia  river,  make  criminal  the  operation  of  a  purse  net 
in  that  river  within  the  territorial  limits  of  the  state  of  Washington,  under  au- 
thority and  license  from  that  state.'*"^ 

FISHING  BILL. — "A  discovery  sought  upon  suspicion,  surmise  or  vague 
guesses  is  called  a  'fishing  bill,'  and  will  be  dismissed."^ 


FIXTURES. 

CROSS  REFERENCES. 

See  the  title  Fixtures,  vol.  6,  p.  300,  and  references  there  given. 

Machinery  is  placed  in  a  plant  by  the  owner  within  the  meaning  of  Porto  Rico 
Code,  §  335,  defining  the  conditions  under  which  property,  movable  in  its  nature, 
becomes  immobilized,  where  it  is  installed  by  a  tenant  under  a  stipulation  in  the 
lease  that  it  shall  become  a  part  of  the  plant  belonging  to  the  owner,  without 
compensation  to  the  lessee.^" 

FLAG. — See  ante.  Constitutional  Law,  p.  264;   post.  Police  Power. 

FLAG  LIEUTENANT.— See  ante.  Aid,  p.  17. 

FOLIO  CHARGE.— See  ante.  Clerks  of  Court,  p.  241. 

299-47a.     Judgment      State     v.      Nielsen  221  U.  S.  533.  340,  .5.5  L.  Ed.  842,  31   S.  Ct. 

(Or.),    95    Pac.    720,    reversed.      Nielsen   r.  683.     See  ante,   DISCOVERY,  p.  465. 

Oregon.  212  U.   S.  315,  53   L.  Ed.  528,  29  301-6b.    Machinery  installed  by  tenant. 

S.     Ct.   383.       See,    also,    ante,      ROUND-  — Valdes  v.   Central   Altagracia,  225   U.   S. 

ARIES,    p.    206;    post,     N  A  V  I  G  .\  B  L  E  58,  56  L.  Ed.  980,  32  S.  Ct.  664.    See.  also, 

WATERS.  post,  LANDLORD  AND  TENANT. 


299-a.  Fishing  bill. — Carpenter  v.  Winn, 


583 


FOREIGN  CORPORATIONS.  Vol.  VI. 

FOODS  AND  DRUGS. — See  Food,  vol.  6,  p.  302,  and  references  there  given. 
In  addition,  see  post,  Health.  As  to  right  of  state  to  legislate  against  adulterated 
foods,  see  ante,  Constitutional  Lavv^,  p.  264.  As  to  denial  of  equal  protection 
of  the  law  under  food  statutes,  see  ante,  Constitutional  Lav^,  p.  264.  As  to 
provisions  in  a  cold  storage  ordinance  for  destruction  of  unwholesome  food  not 
being  unconstitutional  as  depriving  persons  of  property  without  due  process  of 
law,  because  it  does  not  provide  for  notice  and  opportunity  to  be  heard  before 
such  destruction,  or  because  the  part  destroyed  might  have  some  value  for  other 
purposes  than  food,  see  ante,  Due  Process  op  Law,  p.  475.  As  to  what  consti- 
tutes "misbranding"  within  the  food  and  drugs  act  of  Jan.  30,  1906,  see  post,  In- 
terstate AND  Foreign  Commerce.  As  to  prohibiting  sale  of  adulterated  food 
under  the  food  and  drugs  act  of  Jan.  30,  1906,  and  its  etTect  upon  commerce,  see 
post,  Interstate  and  Foreign  Commerce.  As  to  object  of  food  and  drugs  act 
of  Jan.  30,  1906,  see  post,  Interstate  and  Foreign  Commerce.  As  to  notice 
and  hearing  being  a  condition  precedent  to  the  prosecution  of  a  manufacturer, 
instituted  by  the  department  of  agriculture,  for  shipment  of  misbranded  goods 
in  interstate  commerce,  see  post.  Interstate  and  Foreign  Commerce. 

FORCIBLE  ENTRY  AND  DETAINER.— See  the  title  Forcible  Entry  and 
Detainer,  vol.  6,  p.  303,  and  references  there  given. 

FORECLOSURE. — See  post.  Mortgages  and  Deeds  of  Trust. 

FOREIGN  COMMERCE. — See  post.  Interstate  and  Foreign  Commerce. 


FOREIGN  CORPORATIONS. 

II.  Extraterritorial  Rights  and  Powers,  585. 

A.  Existence  Out  of  State  Granting  Charter,  and  Comity  Rule,  585. 

2.  Power  to  Exclude  or  Expel,  585. 
a.  In  General,  585. 

c.   Corporations  Engaged  in   Interstate   and   Foreign  Commerce, 
585. 

4.  Terms  of  Admission,  585. 

a.  Discretion  of  Legislature,  585. 

(1)  General  Rule,  585. 

(2)  Limitations,  586. 

b.  License,  Deposit,  or  Payment  of  Tax,  586. 

c.  Maintenance  of  Office,  and  Agent  for  Service  of  Process,  587. 
e.  Condition  against  Removal  of  Actions  to  Federal  Courts,  587. 
g.  Filing   Statement  of  Condition,   588. 

h.  Prohibiting  Suit  in  State  Courts,  588. 

5.  Effect  of   Noncompliance  with   Terms,   588. 

8.  Regulation  and  Control,  589. 

9.  Validating  Contracts  Made  Prior  to  Admission  to  State.  590. 
10.  Forfeiture  of  Permit  and  Expulsion,  590. 

B.  Powers,  591. 

1.  In  General,  591. 

III.  Actions  and  Suits  by  and  against,  591. 

A.  Power  to  Sue,  591. 

B.  Liability  to  Suit,  591. 

C.  Jurisdiction,  591. 

CROSS  REFERENCES. 
See  the  title  Foreign  Corporations,  vol.  6,  p.  305,  and  references  there  given. 
In  addition,    see  ante,  Appearances,  p.  144;  post,    Monopolies  and  Corpo- 
rate Trusts. 

As  to  right  to  subject  by  attachment  to  payment  of  debt  property  claimed  by 

584 


Vol.  VI. 


FOREIGN  CORPORATIONS. 


309-315 


a  citizen  as  against  the  debtor,  see  ante,  Alie;ns,  p.  18;  Due  Process  of  Law, 
p.  475 ;   post,  Quo  Warranto  ;   Treaties. 

II.  Extraterritorial  Rights  and  Powers. 

A.  Existence  Out    of    State    Granting  Charter,   and  Comity  Rule — 2. 

Power  to  Exclude  or  Expel — a.  In  General. — The  general  principle  that  the 
right  of  a  foreign  corporation  to  engage  in  business  within  a  state  depends  solely 
on  the  will  of  such  state  has  been  long  settled, ^"'^  but  there  is  no  uncontrollable 
power  in  a  state  to  prohibit  all  foreign  corporations,  in  whatever  business  en- 
gaged, from  doing  business  within  its  limits.  A  state  has  the  right  to  prohibit 
a  toreign  corporation  from  doing  business  within  its  borders,  unless  such  pro- 
hibition is  so  conditioned  as  to  violate  some  provision  of  the  federal  constitu- 
tion.!*"' 

Expulsion. — See  note  11a. 

c.  Corporations  Engaged  in  Interstate  and  Foreign  Commerce. — The  inter- 
state busniess  of  a  foreign  corporation  is  a  business  of  an  acceptional  character, 
and  is  protected  by  the  constitution  against  interference  by  state  authority.  A 
corporation  of  one  state,  authorized  by  its  charter  to  engage  in  lawful  commerce 
among  ihe  states,  can  not  be  prevented  by  another  state  from  coming  into  its 
limits  for  all  the  legitimate  purposes  of  such  commerce. ^^'^ 

4.  Terms  of  Admission — a.  Discretion  of  Legislature — (Ij  General  Rule. — 
See  note  24. 

Means  and  Motive  Immaterial. — If  it  exerted  such  power  from  a  consid- 
eration of  acts  done  in  another  jurisdiction,  the  motive  for  the  exertion  of  the 
lawful  power  does  not  operate  to  destroy  the  right  to  call  the  power  into  play.^^'' 


309-lOa.  Power  to  exclude. — Western 
Union  Tel.  Co.  i'.  Coleman,  216  U.  S.  1, 
54  L.   Ed.  355,   30   S.   Ct.   190. 

309-lOb.  Extent  of  power. — Western 
Union  Tel.  Co.  v.  Coleman,  216  U.  S.  1, 
54  L.  Ed.  355,  30  S.  Ct.  190.  See,  also, 
post,  INTERSTATE  AND  FOREIGN 
COMMERCE. 

310-lla.  Expulsion. — As  the  power  of 
the  state  to  prevent  a  foreign  corporation 
from  continuing  to  do  business  is  but  the 
correlative  of  its  authority  to  prevent 
such  corporation  from  coming  into  the 
state,  unless,  by  the  act  of  admission, 
some  contract  right  in  favor  of  the  cor- 
poration arose,  it  follows  that  the  pro- 
hibition against  continuing  to  do  business 
in  the  state  because  of  acts  done  beyond 
the  state  was  none  the  less  a  valid  exer- 
tion of  power  as  to  a  subject  within  the 
jurisdiction  of  the  state.  Hammond 
Packing  Co.  v.  Arkansas,  212  U.  S.  322, 
53  L.  Ed.  530,  29  S.  Ct.  370.  See  post, 
"Forfeiture  of  Permit  and  Expulsion," 
II,  A,  10. 

311-14a.  Corporations  engaged  in  inter- 
state commerce. — -Western  Union  Tel.  Co. 
V.  Coleman,  216  U.  S.  1,  54  L.  Ed.  355,  30 
S.  Ct.  190.  See  post,  INTERST.\TE 
AND  FOREIGN  COMMERCE. 

313-24.  Discretion  as  to  terms. — A  state 
has  a  right  to  exclude  a  foreign  corpora- 
tion from  its  borders,  and  to  impose  con- 
ditions upon  the  entry  of  stich  corpora- 
tions into  the  state  for  the  purpose  of 
carrying    on    business     therein,      provided 


such  conditions  are  not  repugnant  to  the 
constitution  and  laws  of  the  United 
States.  Western  Union  Tel.  Co.  v.  Cole- 
man, 216  U.  S.  1,  54  L.  Ed.  355,  30  S.  Ct. 
190. 

"In  Lafayette  Ins.  Co.  v.  French,  18 
How.  404,  407,  15  L.  Ed.  451,  the  court, 
speaking  by  Mr.  Justice  Curtis,  said:  'A 
corporation  created  by  Indiana  can  trans- 
act business  in  Ohio  only  with  the  con- 
sent, express  or  implied,  of  the  latter 
state  cBank  v.  Earle,  13  Pet.  519,  10  L. 
Ed.  274).  This  consent  may  be  accom- 
panied by  such  conditions  as  Ohio  may 
think  fit  to  impose;  and  these  conditions 
must  be  deemed  valid  and  effectual  by 
other  states  and  by  this  court,  provided 
they  are  not  repugnant  to  the  constitu- 
tion or  laws  of  the  United  States.'  "  West- 
ern Union  Tel.  Co.  v.  Coleman,  216  U. 
S.  1,  54  L.  Ed.  355,  30  S.  Ct.  190. 

315-29a.  Means  and  motive  immaterial. 
— Hammond  Packing  Co.  v.  Arkansas,  212 
U.   S.   322,   53   L.   Ed.   530,  29   S.   Ct.   370. 

In  both  the  refusal  to  permit  the  com- 
ing into  the  state  and  the  exclusion  there- 
from of  a  corporation  previously  admitted 
because  of  acts  done  without  the  state 
while  it  may  be  said  that  the  acts  done 
out  of  the  state  and  their  anticipated  re- 
flex result  may  have  been  the  originating 
cause  for  the  exertion  for  the  lawful  au- 
thority to  refuse  permission  to  come  into 
the  state,  or  to  revoke  such  permission 
previously  given,  that  fact  is  immaterial 
in  a  judicial  inquiry  as  to  the  right  either 


585 


315-317 


FOREIGN  CORPORATIONS. 


Vol.  VI. 


(2)  Limitations. — See  note  31.  The  general  rule  has  been  laid  down  that  a 
state  may,  if  it  chooses  to  do  so,  exclude  foreign  corporations  from  its  limits,  or 
impose  such  terms  and  conditions  on  their  doing  business  in  the  state  as,  in  its 
judgment,  may  be  consistent  with  the  interests  of  the  people.  But  those  were 
cases  in  which  the  particular  foreign  corporation  before  the  court  was  engaged 
in  ordinary  business,  and  not  directly  or  regularly  in  interstate  or  foreign  com- 
merce.^^'^ 

b.  License,  Deposit,  or  Payment  of  Tax. — A  corporation  of  one  state,  author- 
ized by  its  charter  to  engage  in  lawful  commerce  among  the  states,  may  go  into 
another  state  without  obtaining  a  license  from  it  for  the  purposes  of  its  interstate 
business,  and  without  liability  to  taxation  there  on  account  of  such  business.^** 


to  refuse  to  give  or  to  revoke  a  permit  to 
do  business  within  the  state.  Hammond 
Packing  Co.  v.   Arkansas,   212   U.   S.   322, 

53  L.  Ed.  530,  29  S.  Ct.  370. 

315-31.  Limitations. — In  all  the  cases 
in  which  the  supreme  court  has  con- 
sidered the  subject  of  the  granting  by  a 
state  to  a  foreign  corporation  of  its  con- 
sent to  the  transaction  of  business  in  the 
state,  it  has  uniformly  asserted  that  no 
conditions  can  be  imposed  by  the  state 
which  are  repugnant  to  the  constitution 
and  laws  of  the  United  States.  Western 
Union  Tel.   Co.  v.  Coleman,  216  U.   S.  1, 

54  L.   Ed.  355,  30   S.   Ct.   190. 

A  state  statute  which  makes  the  right 
to  a  permit  dependent  upon  the  surren- 
der by  the  foreign  corporation  of  a  privi- 
lege secured  to  it  by  the  constitution  and 
laws  of  the  United  States,  must  be  held 
to  be  void.  Western  Union  Tel.  Co.  v. 
Coleman,  216  U.  S.  1,  54  L.  Ed.  355,  30 
S.   Ct.  190. 

315-31a.  Limitations. — Western  Union 
Tel.  Co.  V.  Coleman,  216  U.  S.  1,  54  L.  Ed. 
355,  30  S.  Ct.  190.  See  post,  INTER- 
STATE AN'D  FOREIGN  COMMERCE. 
And  see  ante,  "Corporations  Engaged  in 
Interstate  and  Foreign  Commerce,"  II, 
A,  2,  c. 

Southern  R.  Co.  v.  Greene,  216 
U.  S.  400,  54  L.  Ed.  536,  540,  30  S.  Ct. 
287.  See,  also,  Louisville,  etc.,  R.  Co.  v. 
Gaston,  216  U.  S.  418,  54  L.  Ed.  542,  30 
S.   Ct.  291. 

In  Pensacola  Tel.  Co.  v.  Western  Union 
Tel.  Co.,  96  U.  S.  1.  13,  24  L.  Ed.  708, 
the  case  of  Paul  v.  Virginia,  8  Wall.  168, 
19  L.  Ed.  357,  was  referred.  And  the 
court  said:  "We  are  aware  that,  in  Paul 
7'.  Virginia,  supra,  this  court  decided  that 
a  state  might  exclude  a  corporation  of 
another  state  from  its  jurisdiction,  and 
that  corporations  are  not  within  the 
clause  of  the  constitution  which  declares 
that  the  citizens  of  each  state  shall  be 
entitled  to  all  privileges  and  immunities 
of  citizens  in  the  several  states.  Art.  4, 
§  2.  That  was  not,  however,  the  case  of 
a  corporation  engaged  in  interstate  com- 
merce; and  enough  was  said  by  the  court 
to  show  that,  if  it  had  been,  very  different 
questions  would  have  been  presented." 
Western  Union  Tel.  Co.  v.  Coleman,  216 
U.  S.  1,  54  L.  Ed.  355.  30  S.  Ct.   190. 


A  state  can  not,  as  a  condition  to  the 
right  of  a  foreign  corporation  to  do  in- 
terstate business,  compel  the  corporation 
to  waive  its  constitutional  exemption 
from  state  taxation  on  its  interstate  busi- 
ness and  on  its  property  outside  of  the 
state,  nor  can  it  prescribe  as  a  condition 
of  the  corporation's  right  to  do  local 
business  that  it  agree  to  waive  the  con- 
stitutional guaranty  of  the  equal  protec- 
tion of  the  law,  or  the  guaranty  against 
being  deprived  of  its  property  otherwise 
than  by  due  process  of  law.  Pullman  & 
Co.  V.  Coleman,  216  U.  S.  56,  53  L.  Ed. 
378,    30   S.    Ct.    232. 

317-34a.  Liability  to  taxation.— West- 
ern Union  Tel.  Co.  v.  Coleman,  216  U.  S. 
1.    54    L.    Ed.    355,   30    S.    Ct.    190. 

"A  state  can  not,  under  the  guise  of  a 
license  tax,  exclude  from  its  jurisdiction 
a  foreign  corporation  engaged  in  inter- 
state commerce."  Western  Union  Tel. 
Co.  V.  Coleman,  216  U.  S.  1,  54  L.  Ed.  355, 
30  S.  Ct.  190.  See  the  title  INTER- 
STATE AND  FOREIGN  COMMERCE. 

"In  the  Western  U.  Teleg.  Case,  West- 
ern Union  Tel.  Co.  v.  Coleman,  216  U. 
S.  1,  54  L.  Ed.  355,  30  S.  Ct.  190,  it  was 
held  that  a  state  could  not  impose  a  tax 
upon  an  interstate  commerce  corporation 
as  a  condition  of  its  right  to  do  domestic 
business  within  the  state,  which  tax  in- 
cluded within  its  scope  the  entire  capital 
of  the  corporation,  without  as  well  as 
within  the  borders  of  the  state."  South- 
ern R.  Co.  V.  Greene,  216  U.  S.  400,  54  L. 
Ed.  536,  30  S.  Ct.  287.  See,  also,  Louis- 
ville, etc.,  R.  Co.  V.  Gaston.  216  U.  S.  418, 
54   L.    Ed.   542,   30   S.    Ct.   291. 

The  exaction  from  a  foreign  telegraph 
company  for  the  benefit  of  the  permanent 
school  fund,  under  the  authority  of  Kan. 
Gen.  Stat.  1901,  p.  280,  of  a  "charter  fee" 
of  a  given  per  cent  of  its  entire  au- 
thorized capital  stock,  as  a  condition  of 
continuing  to  do  local  business  in  the 
state,  is  invalid  under  the  commerce  and 
due-process-of-law  clauses  of  the  federal 
constitution,  as  necessarily  amounting  to 
a  burden  and  tax  on  the  company's  inter- 
state business  and  on  its  property  located 
or  used  outside  the  state.  Western  Union 
Tel.  Co.  V.  Coleman,  216  U.  S.  1,  54  L. 
Ed.   355,    30    S.    Ct.    190. 


586 


Vol.  VI. 


FOREIGN  CORPORATIONS. 


318-320 


c.    Maintenance  of  Office,  and  Agent  for  Service  of  Process. — See  note  35. 

e.  Condition  against  Removal  of  Actions  to  Federal  Courts. — See  note  44. 
While  the  right  to  do  local  business  within  the  state  may  not  have  been  derived 
from  the  federal  constitution,  the  right  to  resort  to  the  federal  courts  is  a  cre- 
ation of  the  constitution  of  the  United  States  and  the  statutes  passed  in  pur- 
suance thereof.'*'*^  A  state  statute  forfeiting  the  right  of  a  foreign  corporation 
to  do  business  in  the  state  and  subjecting  it  to  penalties  in  case  it  should  bring  a 
suit  in  the  federal  courts,  or  remove  one  from  the'  state  courts  to  the  federal 
courts,  is  void.^^'' 


318-35.  Office  and  agent  for  service  of 
process. — Many  states  have  provided  that 
foreign  corporations,  in  order  to  do  busi- 
ness within  the  state,  must  make  pro- 
vision for  service  upon  some  local  agent, 
or  by  authority  conferred  upon  some 
state  officer  to  accept  service  of  sum- 
mons. And  but  for  such  statutes  and  the 
authority  given  by  the  states  to  obtain 
service  upon  local  agents,  there  could  be 
no  recovery  upon  contracts  of  such  com- 
panies, unless  redress  be  sought  in  a  dis- 
tant state  where  the  company  may  hap- 
pen to  have  its  home  office.  Commercial 
Mut.  Acci.  Co.  V.  Davis,  213  U.  S.  245,  bV, 
L.  Ed.  782.  29  S.  Cfe.  445.  See  post, 
SUMMONS  AND  PROCESS. 

320-44.  Condition  against  going  into 
federal  courts. — State  statutes  requiring 
foreign  corporations,  as  a  condition  of 
being  permitted  to  do  business  within  the 
state,  to  stipulate  not  to  remove  into  the 
courts  of  the  United  States  suits  brought 
against  them  in  the  courts  of  the  state, 
have  been  adjudged  to  be  unconstitutional 
and  void.  Western  Union  Tel.  Co.  f. 
Coleman,  216  U.  S.  1,  54  L.  Ed.  355,  30 
S.  Ct.  190,  approving  Barrow  Steamship 
Co.  V.  Kane,  170  U.  S.  100,  110,  42  L.  Ed. 
964,   18   S.   Ct.   526. 

"In  Southern  Pac.  Co.  v.  Denton,  146 
U.  S.  202,  36  L.  Ed.  943,  13  S.  Ct.  44.  the 
court  considered  the  question  of  the 
validity  of  a  Texas  statute  relating  to 
foreign  corporations  desiring  to  transact 
business  in  that  state.  That  statute  pro- 
vided that  the  application  of  the  corpora- 
tion to  do  business  in  the  state  should 
contain  a  stipulation  that  the  permit  be 
subject  to  certain  provisions  of  the  stat- 
ute, one  of  which  was  that  the  permit 
shall  become  null  and  void  if  the  corpora- 
tion, being  sued  in  a  state  court,  should 
remove  the  case  into  a  court  of  the 
United  States  upon  the  ground  of  the 
diverse  citizenship  of  the  parties  or  of 
local  prejudice  against  such  corporation. 
Dealing  with  that  point,  this  court,  speak- 
ing by  Mr.  Justice  Gray,  said:  'But  that 
statute,  requiring  the  corporation,  as  a 
condition  precedent  to  obtaining  a  per- 
mit to  do  business  within  the  state,  to 
surrender  a  right  and  privilege  secured 
to  it  by  the  constitution  and  laws  of  the 
United    States,    was    unconstitutional    and 


void,  and  could  give  no  validity  or  effect 
to  any  agreement  or  action  of  the  cor- 
poration in  obedience  to  its  provisions, 
citing  Insurance  Co.  v.  Morse,  20  Wall. 
445,  22  L.  Ed.  365;  Barron  v.  Burnside, 
121  U.  S.  186,  30  L.  Ed.  915,  7  S.  Ct.  931; 
Texas  Land  &  Mortg.  Co.  v.  Worsham, 
76  Tex.  556,  13  S.  W.  384.  See,  also,  to 
the  same  effect,  Martin  v.  Baltimore,  etc., 
R.  Co.,  151  U.  S.  673,  684,  38  L.  Ed.  311. 
14  S.  Ct.  533;  St.  Clair  v.  Cox,  106  U.  S. 
350,  356,  27  L.  Ed.  222,  1  S.  Ct.  354;  Bar- 
row Steamship  Co.  v.  Kane,  170  U.  S. 
100,  111,  42  L.  Ed.  964,  18  S.  Ct.  526.'" 
Western  Union  Tel.  Co.  v.  Coleman,  216 
U.   S.  1,  54  L.   Ed.  355,  30  S.  Ct.  190. 

320-44a.  Herndon  v.  Chicago,  etc.,  R. 
Co.,  218  U.  S.  135,  54  L.  Ed.  970,  30  S. 
Ct.  633. 

320-44b.  Herndon  v.  Chicago,  etc.,  R. 
Co.,  218  U.  S.  135,  54  L.  Ed.  O'lO,  30  S.  Ct. 
633.  citing  Western  Union  Tel.  Co.  v. 
Coleman,  216  U.  S.  1,  54  L.  Ed.  355,  30  S. 
Ct.  190;  Pullman  Co.  v.  Coleman,  216  U. 
S.  56,  53  L.  Ed.  378,  30  S.  Ct.  232;  Ludwig 
V.  Western  Union  Tel.  Co.,  216  U.  S.  146, 
54  L.  Ed.  423,  30  S.  Ct.  280,  and  Southern 
R.  Co.  V.  Greene,  216  U.  S.  400,  54  L.  Ed. 
536,   30   S.    Ct.   287. 

The  license  or  permit  to  do  local  busi- 
ness, given  to  a  foreign  company  which 
has  come  into  the  state  in  compliance 
with  its  laws,  and  has  required,  under  the 
sanction  of  the  state,  a  large  amount  of 
property  within  its  borders,  can  not  be 
revoked  under  the  authority  of  Act,  Mo. 
March  13,  1907  (Laws  1907,  p.  174),  and 
the  company  subjected  to  penalties  be- 
cause it  brings  a  suit  in  a  federal  court, 
or  removes  a  suit  from  a  state  court  to 
a  federal  court,  especially  where  a  domes- 
tic railway  company  may  bring  suit  in  a 
federal  court,  or,  in  a  proper  case,  re- 
move one  thereto,  without  forfeiting  its 
right  to  do  business,  or  incurring  a  lia- 
bility to  penalties.  (1910),  Herndon  v. 
Chicago,  etc..  R.  Co..  218  U.  S.  135.  54  L. 
Ed.  970,  30  S.  Ct.  633;  Roach  v.  Atchison, 
etc.,  R.  Co.,  218  U.  S.  159,  54  L.  Ed.  978, 
30  S.  Ct.  639.  Affirming  decree,  Chicago. 
R.  I.  &  P.  Ry.  Co.  V.  Swanger  (C.  C. 
1908).  157  F.  783;  Roach  v.  .\tchison,  etc.. 
R.  Co.,  218  U.  S.  159.  54  L.  Ed.  978.  30 
S.  Ct.  639. 


321 


FOREIGN  CORPORATIONS. 


Vol.  VI. 


g.  Filing  Statement  of  Condition. — See  post,  "Prohibiting  Suit  in  State 
Courts,"  II,  A,  4,  h. 

h.  Prohibiting  Suit  in  State  Courts. — See  post,  "Effect  of  Noncompliance 
with  Terms,"  II,  A,  5.  The  doing  of  a  single  act  of  business  within  a  state  by 
a  foreign  corporation  when  there  was  no  purpose  to  do  any  other  business  or 
have  a  place  of  business  in  the  state  does  not  constitute  doing  business  within 
the  state  within  the  meaning  of  a  statute  prohibiting  the  maintenance  of  an  ac- 
tion in  the  state  courts  by  a  foreign  corporation  not  authorized  to  do  business 
therein.'*  ^"^ 

5.  Effect  of  Noncompliance  with  Terms. — See  ante,  "Condition  against 
Removal  of  Actions  to  Federal  Courts,"  II,  A,  4,  e. 

Effect  on  Contracts. — The  supreme  court  of  the  United  States  has  distinctly 
held  that  a  contract  made  by  a  foreign  corporation  with  a  citizen  of  another 
state  is  not  necessarily  void  because  the  corporation  had  not  complied  with  the 
laws  of  such  other  state,  imposing  conditions  upon  it  as  a  prerequisite  to  the 
lawful  transaction  of  business  therein.'*^"  It  has  been  so  held  where  the  penalty 
prescribed  for  noncompliance  with  the  conditions  precedent  to  doing  business 
was  that  the  officers,  agents  and  stockholders  should  be  personally  liable  on  any 
contracts  of  such  foreign  corporations  as  might  be  in  default;'*^''   and  where  the 


321-45a.    Prohibiting  suit  in  state  court. 

— International,  etc.,  Co.  v.  Pigg,  217  U. 
S.  91,  54  L.  Ed.  673,  30  S.  Ct.  481,  citing 
Cooper  Mfg.  Co.  v.  Ferguson,  113  U.  S. 
727,  734,  28   L.   Ed.   1137,  5   S.   Ct.  739. 

What  constitutes  carrying  on  business 
within  state. — A  foreign  corporation  con- 
ducting a  correspondence  school,  whose 
business  involves  the  solicitation  of  stu- 
dents in  Kansas  by  local  agents,  who  are 
also  to  collect  and  forward  to  the  home 
office  the  tuition  fees,  and  the  systematic 
intercourse  by  correspondence  between 
the  company  and  its  scholars  and  agents, 
wherever  situated,  and  the  transportation 
of  the  needful  books,  apparatus,  and  pa- 
pers, is  doing  business  within  the  state, 
within  the  meaning  of  Gen.  St.  Kan.  1901, 
§  1283,  which  prohibits  the  maintaining 
of  an  action  in  the  Kansas  courts  by  any 
corporation  doing  business  in  the  state 
which  has  not  filed  with  the  secretary  of 
state  the  statement  of  its  condition,  pro- 
vided for  by  that  section.  Judgment 
(1907),  91  P.  74,  76  Kan.  328,  reversed. 
International,  etc.,  Co.  v.  Pigg,  217  U.  S. 
91,   54   L.    Ed.   678,   30   S.    Ct.    481. 

"While  the  supreme  court  of  Kansas 
has  distinctly  held  that  the  statute  did 
not  imbrace  single  transactions  that  were 
only  incidentally  necessary  to  the  busi- 
ness of  a  foreign  corporation,  it  also  ad- 
judged that  the  business  done  by  the  text- 
hook  company  in  Kansas  was  not  of  that 
kind,  but  indicated  a  purpose  to  regularly 
transact  its  business  from  time  to  time 
in  Kansas,  and  therefore  it  was  to  be  re- 
garded as  doing  business  in  that  state, 
within  the  meaning  of  the  statute;  and 
that  it  'was  the  intention  of  the  legislature 
rhat  the  state  should  reach  every  con- 
tinuous exercise  of  a  foreign  franchise."  " 
International,  etc.,  Co.  v.  Pigg,  217  U.  S. 
91,   54    L.    Ed.    678,    30   S.    Ct.    481. 

321-48a.    Effect  on  contracts. — Lupton's 


Sons  Co.  v.  Automoljile  Club,  225  U.  S. 
489,   56  L.   Ed.   1177,   32   S.   Ct.   711. 

321-48b.  Officers,  agents  and  stock- 
holders personally  liable. — Lupton's  Sons 
Co.  V.  Automobile  Club,  225  U.  S.  489,  36 
L.  Ed.  1177,  32  S.  Ct.  711. 

"In  Fritts  v.  Palmer,  ]32  U.  S.  282,  33 
L.  Ed.  317,  10  S.  Ct.  93,  a  tract  of  land  in 
Colorado  had  been  conveyed  to  a  Mis- 
souri corporation  in  disregard  of  consti- 
tutional and  statutory  provisions  which 
prohibited  a  foreign  corporation  from 
purchasing  or  holding  land  in  that  state 
until  it  should  acquire  the  right  to  do 
business  therein  by  fulfilling  certain  pre- 
scribed conditions.  Here  the  Missouri 
corporation  had  unquestionably  violated 
the  laws  of  Colorado  when  it  purchased 
the  property  without  having  previously 
designated  its  place  of  business  and  an 
agent,  as  required  by  the  Colorado  stat- 
ute. The  only  penalty  which  that  statute 
provided,  however,  for  noncompliance 
with  these  provisions,  was  that  the  offi- 
cers, agents,  and  stockholders  should  be 
personally  liable  on  any  contracts  of  such 
foreign  corporation  as  might  be  in  de- 
fault. The  supreme  court  held  that  the 
fair  implication  to  be  that,  in  the  judg- 
ment of  the  Colorado  legislature,  this 
penalty  was  ample  to  effect  the  object  of 
the  statute  prescribing  the  terms  upon 
which  foreign  corporations  might  do 
business  in  that  state;  and  hence  the  ju- 
diciary ought  not  to  inflict  the  additional 
and  harsh  penalty  of  forfeiting  the  estate 
which  had  been  conveyed  to  the  Missouri 
corporation.  In  other  words,  the  court 
refused  to  treat  the  conveyance  as  void, 
notwithstanding  that  it  was  made  to  a 
corporation  which  was  forbidden  to  re- 
ceive it."  Lupton's  Sons  Co.  f.  Automo- 
bile Club,  225  U.  S.  489,  56  L.  Ed.  1177,  32 
S.    Ct.   711. 


588 


Vol.  VI. 


FOREIGX  CORPORATIONS. 


321 


penalty  prescribed  was  a  disability  to  sue  in  the  courts  of  the  state  upon  any  con- 
tract made  by  such  corporation  in  the  state.  In  this  view,  despite  its  transaction 
of  business  without  authority,  the  foreign  corporation  can  sue  upon  its  contracts 
in  any  court  of  competent  jurisdiction  other  than  a  court  of  the  state  prohibiting 
such  suit.^^'' 

8.  Regulation  and  Control. — Subject  to  Laws  and  Policy  of  State. 

Where  a  foreign  corporation  has  complied  with  the  provisions  of  law  entitling 


321-48C.  Prohibition  against  suit  in 
state  courts. — The  prohil)ition  against 
suit  in  the  New  York  courts,  which  is  the 
only  penalty  prescribed  for  a  disregard 
by  a  foreign  corporation  of  the  provisions 
of  X.  Y.  Laws  1890,  chap.  563,  §  15,  pro- 
hibiting the  doing  of  local  business  by  a 
foreign  corporation  without  a  certificate 
of  authority,  does  not  make  the  contract 
void,  but  it  remains  valid  and  enforceable 
by  suit  in  the  federal  courts.  Lupton's 
Sons  Co.  z'.  Automobile  Club,  225  U.  S. 
489,  56  L.  Ed.  1177,  32  S.  Ct.  711.  See, 
also,  ante,  '"Prohibiting  Suit  in  State 
Courts,"  II,  A,  4,  h. 

'"In  Mahar  v.  Harrington  Park  Villa 
Sites,  204  N.  Y.  231.  97  N.  E.  587,  the  court 
of  appeals  of  New  York  has  declared  that 
a  contract  made  by  a  foreign  corporation 
doing  business  within  the  state  without 
certificate  of  authority  is  not  absolutely 
void;  that  the  only  penalty  prescribed  by 
the  general  corporation  law  for  a  disre- 
gard of  the  provisions  of  §  15  is  a  disabil- 
ity to  sue  upon  such  a  contract  in  the 
courts  of  New  York;  and  that  the  contract 
remains  valid  and  effective  in  all  other  re- 
spects.'" Lupton's  Sons  Co.  v.  Automobile 
Club,  225  U.  S.  489.  56  L.  Ed.  1177,  32  S. 
Ct.  711. 

"Accordingly,  it  was  held  by  the  court 
of  errors  and  appeals  of  New  Jersey  that 
a  suit  might  be  brought  by  the  corpora- 
tion in  that  state  upon  a  contract  made 
in  New  York,  where  it  was  doing  busi- 
ness without  the  prescribed  certificate. 
Alleghany  Co.  v.  Allen,  69  N.  J.  L.  270,  55 
Atl.  724.  The  court  conceded  the  gen- 
eral rule  both  in  New  Jersey  and  New 
York  to  be  that  a  contract  void  by  the 
law  of  the  state  where  made  would  not 
be  enforced  in  the  state  of  the  forum.  But 
it  was  held  that  the  New  York  statute 
did  not  in  terms  declare  the  contract  void; 
it  provided  that  no  such  action  should  be 
maintained  in  that  state."  Lupton's  Sons 
Co.  V.  Automobile  Club,  225  U.  S.  489,  56 
L.   Ed.   1177,   32   S.   Ct.  711. 

"In  dismissing  the  writ  of  error  to  re- 
view that  judgment  (Allen  v.  Alleghanv 
Co.,  196  U.  S.  458,  465,  49  L.  Ed.  551,  25 
S.  Ct.  311),  this  court  commented  upon  the 
decision  of  the  New  York  court  in  the 
case  of  the  Neuchatel  Asphalte  Co.  z\ 
New  York,  155  N.  Y.  373,  49  N.  E.  1043, 
which  rose  under  the  statute  in  an  earlier 
form,  the  section  (15)  of  the  general  cor- 
poration law  then  providing  that  the  for- 


eign corporation  should  not  maintain  any 
action  in  this  state  upon  any  contract 
made  by  it  in  this  state  until  it  shall  have 
procured  such  certificate.  This  court 
said:  'The  court  of  appeals  in  that  case 
held  that  the  purpose  of  the  act  was  not 
to  avoid  contracts,  but  to  provide  effect- 
ive supervision  and  control  of  the  Inisi- 
ness  carried  on  by  foreign' corporations; 
that  no  penalty  for  noncompliance  was 
provided,  except  the  suspension  of  civil 
remedies  in  that  state,  and  none  others 
would  be  implied.  This  corresponds  with 
our  rulings  upon  similar  questions.  Fritts 
V.  Palmer,  132  U.  S.  282,  33  L.  Ed.  317, 
10  S.  Ct.  93.'  "  Lupton's  Sons  Co.  v.  Au- 
tomobile Club,  225  U.  S.  489,  56  L.  Ed 
1177,   32   S.   Ct.  711. 

"It  must  follow,  upon  the  similar  con- 
struction of  §  15,  as  it  read  at  the  time  of 
the  transaction  in  question,  that  the  Lup- 
ton  Company,  whether  or  not  it  was  doing 
a  local  business  in  New  York,  had  the 
right  to  bring  this  suit  in  the  federal  court. 
The  state  could  not  prescribe  the  qualifi- 
cations of  suitors  in  the  courts  of  the 
United  States,  and  could  not  deprive  of 
their  privileges  those  who  were  entitled 
under  the  constitution  and  laws  of  the 
United  States  to  resort  to  the  federal 
courts  for  the  enforcement  of  a  valid  con- 
tract. Union  Bank  z'.  Vaiden,  18  How. 
503,  507,  15  L.  Ed.  472;  Hyde  v.  Stone,  20 
How.  170,  175,  15  L.  Ed.  874;  Cowles  v. 
Mercer  County,  7  Wall.  118,  122,  19  L.  Ed. 
86;  Insurance  Co.  z'.  Morse,  20  Wall.  445, 
22  L.  Ed.  365;  Barron  z:  Burnside,  121  U. 
S.  186,  30  L.  Ed.  915,  7  S.  Ct.  931;  Law- 
rence V.  Nelson,  143  U.  S.  215,  36  L.  Ed. 
130,  12  S.  Ct.  440;  In  re  Tyler,  149  U.  S. 
164,  189,  37  L.  Ed.  689,  13  S.  Ct.  785;  Bar- 
row Steamship  Co.  v.  Kane,  170  U.  S.  100, 
111,  42  L.  Ed.  964.  18  S.  Ct.  526.  The  state 
in  the  statute  before  us  made  no  such  at- 
tempt. The  only  penalty  it  imposed,  to 
quote  again  from  the  jNIahar  Case,  was  a 
disability  to  sue  'in  the  court  of  New 
York.'  Before  this  decision  of  the  state 
court,  the  circuit  court  of  appeals  for  the 
second  circuit  reached  the  same  conclusion 
as  to  the  meaning  of  the  statute,  and  up- 
held the  right  of  the  foreign  corporation 
to  sue  in  the  federal  court.  Johnson  7'. 
New  York  Breweries  Co.,  101  C.  C.  A.  639, 
178  Fed.  513."  Lupton's  Sons  Co.  z'.  Auto- 
mobile Club,  225  U.  S.  489,  56  L.  Ed.  1177. 
32  S.  Ct.  711. 


589 


327  FOREIGN  CORPORATIONS.  Vol.  VI. 

it  to  admission  to  a  state,  and  is  doing  business  under  its  authority,  so  far  as 
pertains  to  business  done  therein  and  ah  matters  connected  therewith,  it  is  amen- 
able to  the  laws  of  the  state,  and  in  duty  bound  to  obey  them  as  though  it  were 
a  domestic  corporation.^^'* 

Access  to  Books  and  Papers. — The  books  and  papers  of  a  foreign  corpo- 
ration, pertaining  to  business  done  in  a  certain  state  under  authority  of  its  laws, 
which  are  required  as  evidence  in  legal  proceedings  therein,  though  taken  out- 
side the  state,  are  still  within  the  jurisdiction  of  its  courts  in  contemplation  of 
law,  since  the  corporation  is  within  its  jurisdiction,  and  the  books  and  papers 
are  within  the  control  of  the  corporation  and  belong  in  that  state  for  all  legiti- 
mate purposes  of  evidence  required  by  its  courts.^ ^^ 

9.  Validating  Contracts  Made  Prior  to  Admission  to  State. — Contracts 
of  a  foreign  corporation  which  have  been  adjudged  invalid  because  of  its  fail- 
ure to  register  within  the  state  before  making  such  contracts  are  embraced  by 
the  provisions  of  Act  Pa.  May  23,  1907  (P.  L.  205),  legalizing  contracts  of 
foreign  corporations  which,  after  making  such  contracts,  but  prior  to  the  passage 
of  the  act,  have  established  a  known  place  of  business  in  the  state,  and  designated 
authorized  agents  for  the  transaction  of  its  business,  and,  before  commencing 
suit,  have  paid  all  taxes  that  would  have  accrued  if  they  had  complied  with  the 
law  at  the  time  of  beginning  business.^ ^'^ 

10.  ForFe;iture  of  Permit  and  Expulsion. — See  ante,  "In  General,"  II, 
A,  2,  a.     See  post.  Quo  Warranto. 

Receivership. — The  appointment  by  a  state  court  of  a  receiver  for  a  foreign 
corporation  whose  permit  to  do  business  has  been  forfeited  for  violation  of  the 
state  anti-trust  laws  is  not  invalid  because  the  judgment  of  forfeiture  permits 
the  corporation  to  continue  its  interstate  business,  where  the  order  appointing 
the  receiver  is  not  rested  solely  upon  Act  April  11,  1907  of  Texas  (Laws  1907, 
p.  175,  c.  87),  making  special  provisions  for  carrying  out  judgments  under  the 
anti-trust  laws,  but  also  upon  a  statute  in  force  before  the  permit  to  do  business 
was  granted,  empowering  such  appointment.*^' ^"^ 

Jurisdiction  of  State  Court. — Jurisdiction  of  a  state  court  of  the  property 
of  a  foreign  corporation  attaches  so  as  to  prevent  interference  on  the  part  of  a 
federal  court  when  a  receiver  of  the  property  of  such  corporation  has  been  ap- 
pointed, the  judicial  process  served,  and  the  receiver  duly  qualified,  although 
such  receiver  has  not  taken  actual  possession  of  the  property.^ ^'^     The  possible 

327-61a.     Subject  to  laws  and  policy  of  same  contract,  where  the  corporation  has 

state. — In  re  Consolidated  Rendering  Co.,  brought  itself  within  the  provisions  of  Pa. 

06  Atl.  790,   80  Vt.  65,  judgment  affirmed.  Act    May    23,    1907,     legalizing    contracts 

Consolidated,  etc.,  Co.  v.  Vermont,  207  U.  made  by  foreign  corporations  which,  after 

S.  541,  52  L.  Ed.  327,  28  S.  Ct.  178.  making   such    contracts,    but   prior   to   the 

327-61b.     Access  to  books  and  papers. —  passage  of  act,  have  established  a  known 

In  re  Consolidated  Rendering  Co.,  66  Atl.  place  of  business  in  the  state,  and  designated 

780,  80  Vt.  55,  affirmed.  Consolidated,  etc.,  authorized  agents  for  the  transaction  of  its 

Co.    V.  Vermont,    207  U.  S.    541,  52  L.    Ed.  business,    and    before     cominencing    suit, 

327,  28  S.  Ct.  178.  have    paid  all    taxes    that  would  have    ac- 

327-610.       Validating      contracts     made  crued  if  they  had  complied  with  the  laws 

prior    to    admission. — West    Side,  etc..    R.  at  the  time  of  beginning  business.     West 

Co.  V.  Pittsburg  Constr.  Co.,  219  U.  S.  92,  Side,  etc.,  R.  Co.  v.  Pittsburg  Constr.  Co., 

55  L.  Ed.  107,  31  S.  Ct.  196,  affirming  Pitts-  219  U.  S.  92.  55  L.  Ed.  107,  31  S.  Ct.  196. 
burg  Const.  Co.,  75  A.  1029,  227  Pa.  90.  327-61d.     Forfeiture  of  right— Receiver- 

The    judgment    of  a    federal  court    dis-  ship. — Palmer  z'.  Texas,  212  U.  S.  118,  53 

missing  an  action  by  a  foreign  corporation  L.  Ed.  435,  29  S.  Ct.  230,  modifying  Texas 

because    of    its  failure  to    register    within  v.  Palmer,  158  F.  705.     See  post,  RECEIV- 

the  state  before  entering  into  the  contract  ERSHIP. 

in  suit  is  not  denied  full  faith  and  credit  327-61e.      Jurisdiction   of    state    court.— 

by  a  decision  of  a  state  court  holding  that  Palmer  7'.  Texas,  212  U.  S.  118,  53  L.   Ed. 

such  judgment  is  not  a  bar  to  a  second  ac-  435,  29  S.  Ct.  230. 
tion   between   the    same   parties   upon    the 

590 


Vol.  VI. 


FOREIGN  EXTRADITION. 


327-334 


danger  of  prosecutions  and  interference  pending  an  appeal  with  supersedeas 
from  an  order  of  a  state  court  appointing  a  receiver  of  the  property  of  a  foreign 
corporation  whose  permit  to  do  business  in  the  state  has  been  forfeited  for  vio- 
lating the  state  anti-trust  laws,  wall  not  justify  a  federal  court  in  interfering 
with  the  state  court's  custody  of  the  res,  acquired  by  the  appointment  and  quali- 
fication of  the  receiver.*^  1* 

B.  Powers— 1.  In  General.— To  Contract.— See  ante,  "Efifect  of  Noncom- 
pliance with  Terms,"  II,  A,  5. 

III.  Actions  and  Suits  by  and  against. 

A.  Power  to   Sue. — See  ante.  "Effect  of  Noncompliance  with  Terms,"   II, 

-^'  ^-     .      .  . 

B.  Liability  to  Suit. — A  foreign  corporation,  in  order  to  be  subject  to  the 

jurisdiction  of  a  court,  must  be  doing  business  within  the  state  of  the  court's 
jurisdiction,  and  service  must  there  be  made  upon  some  duly  authorized  ofificer 
or  agent.'^^'^ 

C.  Jurisdiction. — See  ante,  "Effect  of  Noncompliance  with  Terms,"  II,  A^ 
5;  "Liability  to  Suit,"  III,  B. 

FOREIGNER.— See  note  la. 

FOREIGN    EXECUTORS    AND    ADMINISTRATORS.— See  ante.  Execu- 
tors AND  Administrators,  p.  564. 

FOREIGN  EXTRADITION.— See  ante.  Extradition,  p.  571. 


327-61f.    Interference  by  federal  court. — 

Palmer  v.  Texas,  212  U.  S.  118,  53  L.  Ed. 
435,  29   S.   Ct.  230. 

The  jurisdiction  of  a  state  court  over 
the  res,  acquired  by  the  appointment  and 
qualification  of  a  receiver  of  the  property 
of  a  foreign  corporation,  is  not  lost,  so  as 
to  permit  interference  on  the  part  of  a 
federal  court,  because  of  an  appeal  with 
supersedeas  from  the  order  appointing  the 
receiver,  where  the  state  courts  hold  that 
the  effect  of  the  appeal  and  supersedeas 
bond  is  merely  to  suspend  the  order  ap- 
pointing the  receiver  pending  the  deter- 
mination of  the  appeal.  Palmer  z'.  Texas, 
212  U.   S.  118,  53   L.   Ed.  435,  29   S.   Ct.  230. 

330-75a.  Liability  to  suit. — Herndon- 
Carter  Co.  v.  Norris,  Son  &  Co.,  224  U.  S. 
496,  56  L.  Ed.  857,  32  S.  Ct.  550,  following 
St.  Clair  V.  Cox,  106  U.  S.  350,  27  L.  Ed. 
222,  1  S.  Ct.  354;  Goldey  v.  Morning  News, 
156  U.  S.  518,  39  L.  Ed.  517,  15  S.  Ct.  559, 
and  Peterson  v.  Chicago,  etc.,  R.  Co.,  205 
U.  S.  364,  51  L.  Ed.  841.  27  S.  Ct.  513. 

"That.it  is  essential,  in  order  to  obtain 
jurisdiction  over  a  foreign  corporation 
having  *  *  *  neither  property  nor  agent 
in  the  state,  that  it  be  doing  business  in 
the  state,  is  settled  bv  numerous  decisions 
of  this  court.  St.  Clair  v.  Cox,  106  U.  S. 
350,  27  L.  Ed.  222,  1  S.  Ct.  354;  Goldey  v. 
Morning  News,  156  U.  S.  518,  39  L.  Ed. 
517,  15  S.  Ct.  559;  Barrow  Steamship  Co. 
V.  Kane,  170  U.  S.  100,  42  L.  Ed.  964,  18  S. 
Ct.  526;  Connecticut  Mut.  L.  Ins.  Co.  v. 
Spratley,  supra;   Conley  v.  Mathieson  Al- 


kali Works,  190  U.  S.  406,  47  L.  Ed.  1113,. 
23  S.  Ct.  728;  Pennsylvania,  etc..  Fire  Ins. 
Co.  V.  Meyer,  197  U.  S.  407,  49  L.  Ed.  810, 
25  S.  Ct.  483;  Peterson  v.  Chicago,  etc.,  R. 
Co.,  205  U.  S.  364,  51  L.  Ed.  841,  27  S.  Ct. 
513."  Commercial  Mut.  Acci.  Co.  v.  Davis, 
21  U.  S.  245,  53  L.  Ed.  782,  29  S.  Ct.  445. 

"Previous  cases  in  this  court  have  not 
defined  the  extent  of  the  business  neces- 
sary to  the  presence  of  a  foreign  corpora- 
tion in  the  state  for  the  purpose  of  a  valid 
service;  it  is  sufficient  if  it  is  doing'  busi- 
ness therein."  Commercial  Mut.  Acci. 
Co.  V.  Davis,  213  U.  S.  245,  53  L.  Ed.  782, 
29   S.  Ct.  445. 

334-la.  Foreigners  as  used  in  Treaty  of 
Paris. — In  article  IX  of  the  Treaty  of 
Paris,  30  Stat.  1754,  provided  that  "Span- 
ish subjects,  natives  of  the  peninsula,  re- 
siding in  the  territory  over  which  Spain 
by  the  present  treaty  relinquishes  or  cedes 
her*  sovereignty,  *  *  *  have  the  right  to 
carry  on  their  industry,  commerce  and 
professions,  being  subject  in  respect 
thereof  to  such  laws  as  are  applical>le  to 
other  foreigners."  The  words  "such  laws 
as  are  applicable  to  other  "foreigners," 
referred  not  to  the  Spanish  law,  but  to  the 
laws  enacted  by  the  new  sovereignty. 
Spaniards  only  became  foreigners  after 
the  cession  of  the  islands,  and  it  is  ob- 
vious that  the  words  meant  such  laws  as 
shall  be  applicable  to  other  foreigners. 
Bosque  V.  United  States,  209  U.  S.  91.  96. 
52  L.  Ed.  698,  28  S.  Ct.  501.  See  post,. 
TREATIES. 


591 


338-339  FOREIGN  JUDGMENTS,  ETC.  Vol.  VI. 


FOREIGN   JUDGMENTS,   RECORDS  AND  JUDICIAL  PROCEEDINGS. 

II.  Judgments,   Records   and  Judicial  Proceedings   of   Courts   of   Other 
States,   592. 
B.  Operation  and  Conclusiveness,  592. 

2.  Under  Provisions  in  Articles  of  Confederation,  Constitution  and 
Federal  Statutes  as  to  Full  Faith  and  Credit,  592. 

a.  Provisions  Stated,  592. 

b.  Provisions  Construed  and  Applied,  593. 

(2)  By  Whom    and  to  What  Records    and  Judicial   Pro- 

ceedings Faith  and  Credit  Must  Be  Accorded,  593. 

(a)  In  General,  593. 

(b)  Judgments   of    State   Courts    in   Other    States   or 

Territories,   593. 

(c)  Judgments  of  State  Courts  in  Federal  Courts,  593. 

(d)  Judgments  of  Federal  Courts  in  State  Courts,  593. 

(3)  Extent  of  Faith  and  Credit  Required  to  Be  Given,  593. 

(4)  Application   of    Provisions   as   Dependent   upon   Exist- 

ence of  Actual  Valid  Judgment  or  Decree,  594. 
(b)   Inquiry  as  to  Jurisdiction,  594. 

(e)  Effect  of  Irregularities  or  Errors  in  Decision,  594. 

(5)  Application  as    Dependent  upon    Nature  of    Adjudica- 

tion, 594. 
(a)   General  Rule,  594. 
D.  Enforcement,  595. 

1.  Necessity  for  New   Suit,  595. 
4.  Pleading,  595. 

c.  Pleadings  by  \\'ay  of  Defense,  595. 

(1)   Matters  Pleadable,  595. 

CROSS   REFERENCES. 

See  the  title  Foreign  Judgments,  Records  and  Judicial  Procee:dings,  vol. 
6,  p.  335,  and  references  there  given. 

II.  Judgments,  Records    and    Judicial  Proceedings    of    Courts  of  Other 

States. 
B.  Operation  and  Conclusiveness — 2.  Under  Provisions  in  Articles  of 
Confederation,  Constitution  and  Federal  Statutes  as  to  Fule  Faith  and 
Credit — a.    Prox'isions  Stated. — See  notes  10,  12. 

338-10.     Provisions  of  the  United  States  Bigelow  v.  Old  Dominion,  etc.,  Min.  Co., 

Const.,    art.   4,   §    1,   as   to    full   faith    and  225  U.    S.   Ill,   56   L.    Ed.   1009,   32   S.    Ct. 

credit.— Everett  v.  Everett,  215  U.  S.  203,  641. 

54   L.    Ed.    158,   30    S.    Ct.   70;   ^tna    Life  Constitutionality    of    Rev.    Stat.,    §    906, 

Ins.   Co.   V.   Tremblay,   223    U.    S.    185,    56  giving  faith  and  credit  to  territorial  legis- 

L.    Ed.    398,    32    S.    Ct.    309;    Converse    v.  lation. — Congress  had  the  power  to  enact 

Hamilton,  224  U.  S.  243,  56  L.  Ed.  749,  32  Rev.    St.    U.    S.    1901,    §    906    (U.    S.    Comp. 

S.  Ct.  415;  Bigelow  v.  Old  Dominion,  etc.,  St.    1901,  p.   677),   under  which   territorial 

Min.    Co.,   225   U.    S.   Ill,   56   L.    Ed.    1009,  legislation  must  be   given,  by  every  court 

32  S.  Ct.  641.  within   the   United   States,   the   same   faith 

339-12.     Provision   of  Act   of   Congress  and  credit  which  it  has  by  law  or  usage 

of  May  26,  1790,  c.  11,  stat.  122  (now  §  905  in   the   court   of  the   territory   enacting  it. 

of  Revised  Statutes).— Tilt  v.  Kelsey,  207  Judgment    (Tex.    Civ.    App.    1907),    99    S. 

U.  S.  43,  52  L.  Ed.  95,  28  S.  Ct.  1;  Faunt-  \V.    190,   affirmed.      Atchison,    etc.,    R.    Co. 

leroy   v.    Lum,    210    U.    S.    230,    52    L.    Ed.  v.    Sowers,   213    U.    S.    55,    53    L.    Ed.    695, 

1039,  28  S.  Ct.  641;  Converse  v.  Hamilton,  29  S.  Ct.  397. 
224  U.  S.  243,  56  L.   Ed.  749,  32  S.  Ct.  415; 

592 


Vol.  \'I. 


FOREIGX  JUDGMEXTS,  ETC. 


342-345 


b.  Proz'isions  Construed  and  Applied — (2)  By  Whom  and  to  What  Records 
and  Judicial  Proceedings  Faith  and  Credit  Must  Be  Accorded — (a)  In  General. 
— See  note  23. 

(b)    Judgments  of  State  Courts  in  Other  States  or  Territories. — See  note  25. 

(  c  )    Judgments  of  State  Courts  in  Federal  Courts. — See  note  29. 

(d)    Judgments  of  Federal  Courts  in  State  Courts. — See  note  31. 

(3 )    Extent  of  Faith  and  Credit  Required  to  Be  Given. — See  note  36. 


342-23.      The     constitution    of     a    state 

must  be  given  full  faith  and  credit  in  the 
courts  of  another  state,  and  the  duty  to 
do  so  is  as  obligatory  as  in  the  case  of 
judicial  proceedings  of  such  other  state. 
Smithsonian  Institution  v.  St.  John,  214 
U.  S.  19,  53  L.  Ed.  892,  29  S.  Ct.  601. 

Statutes  of  other  states. — The  denial  of 
the  validity  of  the  statute  of  another 
state,  and  of  the  binding  force  of  such 
statute  to  control  the  right  of  action  as- 
serted is  the  denial  of  a  right  under  the 
constitution  of  the  United  States.  Atchi- 
son, etc.,  R.  Co.  V.  Sowers,  213  U.  S.  55, 
53   L.   Ed.   695,  29   S.   Ct.   397. 

The  full  faith  and  credit  demanded  by 
U.  S.  Rev.  Stat..  §  906,  U.  S.  Comp.  Stat- 
1901,  p.  677,  is  not  given  to  N.  M.  Act  of 
March  11,  1903,  governing  actions  for  per- 
sonal injuries  received  in  that  territory, 
where  a  recovery  is  permitted  in  a  state 
court  on  such  a  cause  of  action,  with  no 
showing  of  a  compliance  with  the  pre- 
liminaries of  notice  and  demand  presented 
by  the  territorial  statute.  El  Paso,  etc., 
R.  Co.  V.  Gutierrez,  215  U.  S.  87,  54  L. 
Ed.  106.  30  S.  Ct.  21. 

Construction  of  statute. — The  mere 
construction  by  a  state  court  of  the  stat- 
ute of  another  state,  without  questioning 
its  validity,  does  not  deny  to  it  the  full 
faith  and  credit  demanded  by  the  consti- 
tutional provision.  Smithsonian  Institu- 
tion V.  St.  John,  214  U.  S.  19,  53  L.  Ed. 
892,  29   S.   Ct.   601. 

Where  the  supreme  court  construes  the 
statute  of  another  state  in  the  light  of  the 
opinions  of  the  courts  of  that  state,  it 
gives  full  faith  and  credit  to  the  public 
acts  and  judicial  proceedings  of  such 
state;  and,  because  it  is  construed  to  a 
defeated  party's  detriment,  it  gives  him 
no  right  to  claim  that  the  constitution  of 
the  United  States  has  been  violated  in 
such  construction.  (Civ.  App.  1904)  New 
York  Life  Ins.  Co.  v.  English.  79  S.  W. 
616,  dismissed.  New  York  Life  Ins.  Co. 
V.  English.  199  U.   S.  610,  50  L.   Ed.  332. 

342-25.  Judgments  of  state  courts  in 
other  states  or  territories. — A  judgment 
enforceable  in  the  state  where  rendered 
must  be  given  effect  in  another  state,  un- 
der the  full  faith  and  credit  clause  of  the 
federal  constitution,  although  the  modes 
of  procedure  to  enforce  its  collection 
may  not  be  the  same  in  both  states. 
C1910)  Sistare  v.  Sistare,  218  U.  S.  1,  54 
L.   Ed.  905,  30  S.  Ct.  682,  reversing  judg- 

12  U  S  Enc— 38  593 


ment  (1907)  66  A.  772,  80  Conn.  1,  125  Am. 
St.   Rep.   102. 

343-29.  Effect  of  judgments  of  state 
courts  in  federal  courts. — A  judgment  of 
a  state  court  sustaining  the  exemption 
claimed  by  a  railway  company  under  its 
charter  from  any  taxation  except  one 
based  on  its  net  profits,  which,  under  the 
local  law  of  the  state,  is  not  res  judicata  as 
to  taxes  for  other  years  than  the  one 
directly  involved,  can  be  accorded  no 
greater  efficacy  in  the  federal  courts.  De- 
cree, Georgia  R.  &  Banking  Co.  v.  Wright 
(C.  C.  1904)  132  F.  912,  affirmed.  Wright 
f.  Georgia  R.,  etc.,  Co.,  216  U.  S.  420,  54 
L.    Ed.    544,    30   S.    Ct.    242. 

344-31.  .A  state  court  can  not,  by  de- 
cree, compel  one  of  two  connecting  car- 
riers maintaining  live  stock  depots  at  or 
near  Louisville,  as  points  of  delivery  for 
stock  having  that  as  their  general  desti- 
nation, to  transfer  and  deliver  at  the  point 
of  physical  intersection  "any  and  all  live 
stock  or  other  freight  coming  over  its 
lines  in  Kentucky,"  consigned  to  the  oth- 
er's depot  or  persons  doing  business 
there,  and  to  change  destination  to  such 
depot  on  request  at  any  station,  and  par- 
ticularly at  its  "break-up  j-ards"  in  South 
Louisville,  where  a  federal  court  previ- 
ously dismissed  a  bill  in  a  similar  suit  be- 
tween the  parties,  dealing  only  w-ith  in- 
terstate shipments.  Judgment  (1906)  97 
S.  W.  778,  30  Ky.  Law  Rep.  18,  reversed. 
Louisville,  etc.,  R.  Co.  v.  Central  Stock- 
yards Co.,  212  U.  S.  132,  53  L.  Ed.  441, 
29  S.  Ct.  246. 

345-36.  To  be  given  same  effect  as  in 
courts  of  state,  etc.,  from  which  taken. — 
Tilt  V.  Kelsey,  207  U.  S.  43,  52  L.  Ed.  95, 
28  S.  Ct.  1;  Converse  v.  Hamilton,  224 
U.   S.  243,   56  L.    Ed.   749.  32    S.   Ct.  415. 

Judgments  of  federal  courts  in  state 
courts. — A  judgment  of  the  supreme  court 
of  the  United  States  to  the  effect  that  a 
policy  of  fire  insurance  could  not  be  re- 
covered upon  as  it  stood  nor  be  helped 
out  by  anj'  doctrine  of  the  common  law 
is  not  denied  full  faith  and  credit  by  an 
adjudication  of  a  state  court  that  such 
judgment  is  not  a  bar  to  a  suit  in  equity 
to  reform  the  policy  so  that  it  will  ex- 
press consent  to  concurrent  insurance, 
and  to  recover  upon  such  policy  as  re- 
formed. Decree,  Grand  View  Bldg.  Ass'n 
V.  Northern  Assur.  Co.  (Neb.  1905)  102 
N.    W.    246,    affirmed.      Northern    Assur. 


348-358 


FOREIGN  JUDGMENTS,  ETC. 


Vol.  VL 


(4)  Application  of  Provisions  as  Dependent  upon  Existence  of  Actual  Valid 
Judgment  or  Decree — (b)  Inquiry  as  to  Jurisdiction. — See  note  50. 

(e)    Effect  of  Irregularities  or  Errors  in  Decision. — See  note  70. 

(5)  Application  as  Dependent  upon  Nature  of  Adjudication — (a)    General 
Rule. — See  note  76. 


Co.  V.  Grand  View  Bldg.  Ass'n,  203  U.  S. 
106,  51  L.  Ed.  109,  27  S.  Ct.  27. 

The  judgment  of  a  federal  court  dis- 
missing an  action  by  a  foreign  corpora- 
tion because  of  its  failure  to  register 
within  the  state  before  entering  into  the 
contract  in  suit  is  not  denied  full  faith  and 
credit  by  a  decision  of  a  state  court  hold- 
ing that  such  judgment  is  not  a  bar  to  a 
second  action  between  the  same  parties 
upon  the  same  contract,  where  the  cor- 
poration has  brought  itself  within  the 
provisions  of  Act  Pa.  May  23,  1907  (P. 
L.  205),  legalizing  contracts  made  by  for- 
eign corporations,  which,  after  making 
such  contracts,  but  prior  to  the  passage 
of  the  act,  have  established  a  known  place 
of  business  in  the  state,  and  designated 
authorized  agents  for  the  transaction  of 
its  business,  and  before  commencing  suit, 
have  paid  all  taxes  that  would  have  ac- 
crued if  they  had  complied  with  the  laws 
at  the  time  of  beginning  business.  (1911) 
West  Side,  etc.,  R.  Co.  v.  Pittsburgh 
Constr.  Co.,  219  U.  S.  92,  55  L.  Ed.  107, 
31  S.  Ct.  196,  affirming  judgment.  Pitts- 
burg Const.  Co.  V.  West  Side  Belt  R.  Co. 
(1910),  75  A.  1029,  227  Pa.  90. 

348-50.  Right  of  inquiry  as  to  jurisdic- 
tion over  person  or  subject  matter  now 
unquestioned. — Tilt  v.  Kelsey,  207  U.  S. 
43,  52  L.  Ed.  95,  28  S.  Ct.  1;  Brown  v. 
Fletcher's  Estate,  210  U.  S.  82,  52  L.  Ed. 
966,  28  S.  Ct.  702;  Fauntleroy  v.  Lum, 
210  U.  S.  230,  52  L.  Ed.  1039,  28  S.  Ct. 
641. 

The  full  faith  and  credit  due  the  pro- 
bate proceedings  of  the  New  Jersey 
courts  do  not  require  that  the  courts  of 
New  York  shall  be  bound  by  the  adjudi- 
cation of  the  New  Jersey  courts  on  the 
question  of  domicile.  Order,  In  re  Tilt's 
Estate  (1905),  75  N.  E.  1134,  182  N.  Y. 
557,  reversed.  Tilt  v.  Kelsey,  207  U.  S. 
43,  52  L.   Ed.  95,  28  S.  Ct.   1. 

A  decree  entered,  after  an  order  of  re- 
vivor, against  the  administrator  with  the 
will  annexed  of  a  nonresident,  who  had 
died  pending  suit,  confirming  an  award  in 
arbitration  proceedings  had  in  the  suit 
under  a  rule  of  court,  does  not  bind  the 
nonresident  executors  and  legatees,  who 
did  not  appear  and  were  not  validly 
served  with  process,  although  the  stipu- 
lation for  submission  to  arbitration  pro- 
vided that  the  arbitration  should  continue 
in  case  of  the  death  of  either  party,  and 
that  his  successors  and  legal  representa- 
tives should  be  bound  by  the  final  award. 
Judgment  (1906),  109  N.  W.  686,  140  Mich. 
401,  affirmed.     Brown  v.  Fletcher's  Estate, 


210  U.   S.  82,  52  L.   Ed.  966,  28  S.   Ct.  702. 

A  decree  of  a  federal  circuit  court  sit- 
ting in  New  York,  dismissing  a  suit  in 
personam  brought  against  one  of  two 
joint  tort  feasors,  is  not  denied  full  faith 
and  credit  by  the  refusal  of  a  Massachu- 
setts court  to  give  it  effect  as  a  bar  to  a 
suit  upon  the  same  facts  against  the 
other,  who  was  not  a  resident  of  New 
York,  and  not  a  party  to  the  first  suit, 
where  such  refusal  was  rested  upon  the 
ground  that,  under  the  general  law,  what- 
ever might  be  the  rule  in  New  York,  the 
relationship  between  two  joint  tort  fea- 
sors was  not  such  as  to  make  the  one  not 
sued  a  party  by  either  privity  or  repre- 
sentation, this  being  a  jurisdictional  ques- 
tion which  the  Massachusetts  court  was 
at  liberty  to  determine  for  itself.  Bige- 
low  V.  Old  Dominion,  etc.,  Min.  Co.,  225 
U.   S.   Ill,   56   L.    Ed.   1009,   32   S.   Ct.   641. 

356-70.  Not  impeachable  as  based  on 
mistake  of  law. — A  judgment  is  conclusive 
as  to  all  the  media  concludendi,  and  can 
not  be  impeached  either  in  or  out  of  the 
state  by  showing  that  it  was  based  upon 
a  mistake  of  law.  American  Exp.  Co.  v. 
Mullins,  212  U.  S.  311,  53  L.  Ed.  525,  29 
S.  Ct.  381;  Fauntleroy  v.  Lum,  210  U.  S. 
230,   52   L.   Ed.   1039,  28    S.   Ct.   641. 

Holding  an  express  company  liable  to 
the  consignor  of  a  shipment  of  intoxicat- 
ing liquors  which  were  seized  and  de- 
stroyed under  a  default  judgment  ren- 
dered in  a  court  of  another  state  in  a 
proceeding  in  the  nature  of  one  in  rein 
denies  to  such  judgment  the  full  faith  and 
credit  to  which  it  is  entitled  under  the 
constitution  and  laws  ,  of  the  United 
States,  where  the  company  notified  the 
consignor  of  the  seizure  in  time,  and  re- 
ceived from  him  an  assurance  that  he 
would  contest  its  legality.  American 
Exp.  Co.  Z'.  Mullins,  212  U.  S.  311,  53  L. 
Ed.   525,  29  S.   Ct.   381. 

358-76.  Adjudications  as  to  probate  of 
will. — The  conclusiveness  attending,  un- 
der the  New  Jersey  practice,  the  probate 
of  a  will,  the  settlement  of  the  executors' 
account,  and  the  final  distribution  of  the 
estate  pursuant  to  orders  which  the  court 
made  after  having  decreed  that  all  those 
who  had  neglected  to  bring  in  their 
claims  were  forever  barred  from  their  ac- 
tion therefor  against  the  executors,  ren- 
ders repugnant  to  the  full  faith  and  credit 
clause  of  the  federal  constitution  where 
no  attack  on  the  jurisdiction  of  the  New 
Jersey  courts  was  made,  the  subsequent 
assessment,  under  Laws  N.  Y.  1896,  p. 
869,   c.    908,    upon    the   personal    estate    of 


594 


Vol.  VI.  FOREIGN  LAI  VS.  362-376 

D.  Enforcement — 1.  Necessity  for  New  Suit. — See  note  91. 
4.    Pleading — c.  Pleadings  by   Way  of  Defense — (1)    Matters  Pleadable. — 
See  note  2. 


FOREIGN  LAWS. 
I.  What  Are  Foreign  Laws,  595. 

A.  Laws  of  the  States,  595. 

2.  In  State  Courts,  595. 

II.  Foreign  Laws  in  Evidence,  595. 

A.Judicial  Notice,  595. 

2.  Laws  of  Territories  Ceded  to  the  United  States,  595. 

B.  Proof  of  Foreign  Laws,  595. 

L  In  General,  595.  ': 

III.  Extraterritorial  Effect  of  Foreign  Laws,  595. 

CROSS  REFERENCES. 

See  the  title  Foreign  Laws^  vol.  6,  p.  374,  and  references  there  given. 
In  addition,  see  ante.  Common  Law,  p.  245. 

I.  What  Are  Foreign  Laws. 

A.  Laws  of  the  States — 2.  In  State  Courts. — But  the  duty  of  giving  full 
force  and  effect  to  the  constitution  of  a  state  by  another  state  is  as  obligatory  as 
the  similar  duty  in  respect  to  the  judicial  proceedings  of  that  state. ^^ 

II.  Foreign  Laws  in  Evidence. 

A.  Judicial  Notice — 2.  Laws  of  Territories  Ceded  to  the  United  States. 
— See  note  7. 

B.  Proof  of  Foreign  Laws — 1.  In  General. — See  note  9. 

III.  Extraterritorial  Effect  of  Foreign  Laws. 

For  a  detailed  discussion  of  this  subject,  see  ante.  Conflict  of  Laws,  p.  250. 

the  decedent  as  a  resident  of  New  York,  any  court.     Fauntleroy  v.  Lum,  210  U.  S. 

of  a  succession  tax,  which,   under  section  230,   52   L,.   Ed.   1039,  28   S.   Ct.  641. 

222  of  that  act,  is  made  a  lien  on  the  prop-  375-3a.     Constitution    of    another    state, 

erty    and    a    personal    obHgation    of    the  — Smithsonian  Institution  v.  St.  John,  214 

transferees   and   executors.      Order,   In    re  U.  S.  19,  53  L.  Ed.  892,  29  S.  Ct.  601. 

Tilt's    Estate    (1905),    75    N.    E.    1134,    182  376-7.     Spanish    law.— The    federal    su- 

N.   Y.   557,   reversed.     Tilt  v.   Kelsey,  207  preme    court   will    take   judicial    notice    of 

U.   S.   43,  52   L.   Ed.   95,  28   S.   Ct.   1.  the   Spanish    law,   as   far   as   it   affects   the 

362-91.    Not  a  judgment  enforceable  by  insular   possession    of   the    United    States. 

execution.— Fall  t'.  Eastin,  215  U.  S.  1,  54  Ponce     v.      Roman      CathoHc      Apostolic 

L    Ed    65    30   S    Ct    3  Church,  210  U.   S.  296,   53  L.   Ed.   1068,  28 


366-2.  Illegality  of  original  cause  of  ac- 


S.    Ct.   737. 


tion.— The     Mississippi     courts     can     not  The  history  of  Porto  Rico  and  its  legal 

deny  to  a  judgment  of  a  Missouri  court,  and  political  institutions,   up   to   the   time 

based  upon  an   award  in  arbitration   pro-  of    'ts    annexation    to    the    United    States, 

ceedings  in   Mississippi,  the  full  faith  and  are  matters  which  must  be  recognized  by 

credit  secured  by  Const.  U.  S.  art.  4,  §  1,  the     federal     supreme     court.       Ponce     v. 

to  the  judgments  of  sister  states,  because  Roman    Catholic    Apostolic    Churchy   210 

the    original    controversy    grew    out    of    a  U.  S.  296,  52  L.  Ed.  1068,  28  S.  Ct.  737. 

gambling    transaction    in    futures    in    Mis-  376-9.    Proof  of  foreign  laws  in  general. 

sissippi,  which  is  made  a  misdemeanor  by  — The  federal  courts  can  not  assume  with- 

Ann.  Code  Miss.  1892,  §§  1120,  1121,  2117,  out   proof   that,    under   the    law    of    Cuba, 

which    further    provide    that    contracts    of  like   that   of   the   forum,   a  promise   to   re- 

that   character   shall    not    be    enforced    by  pair  or  replace  defective  machinery,  when 

595 


381-391 


FORWARDING  AGENT. 


Vol.  VI. 


FOREIGN  MINISTERS.— See  ante,  Ambassadors  and  Consults,  p.  256. 
FOREST  RESERVE.— See  post,  Public  Lands. 

FORFEITURE. — See   post,    Mines   and    Minerals;    Penalties   and    For- 
feitures. 

FORGED. — See  post,  Forgery  and  Countereeiting. 


FORGERY  AND  COUNTERFEITING. 

I.  Forgery,  596. 

A.  Definition  and  General  Consideration,  596. 
3.  Injury  by  Forgery,  596. 

CROSS   REFERENCES. 

See  the  title  Forgery  and  Counterfeiting,  vol.  6,  p.  380,  and  references 
there  given. 

As  to  recovery  back  of  payments  on  forged  paper,  see  ante,  Banks  and 
Banking,  p.  184.  As  to  extradition  of  a  person  for  the  crime  of  forgery,  see 
ante.  Extradition,  p.  571. 

I.  Forgery. 

A.  Definition  and  General  Consideration — 3.  Injury  by  Forgery. — 
An  actual  financial  or  property  loss  need  not  be  charged  or  proved  in  order  to 
make  out  a  case  under  Rev.  St.  §  5418  (U.  S.  Comp.  St.  1901,  p.  3666)^  of 
forging  vouchers  required  upon  examination  by  the  civil  service  commission  of 
the  United  States,  certifying  to  the  character,  physical  capacity,  etc.,  of  the  ap- 
plicant, and  presenting  the  same  to  the  commission.-^ 

FORMER  ACQUITTAL  AND  CONVICTION.— See  ante.  Autrefois,  Ac- 
quit AND  Convict,  p.  161. 

FORMER  RECOVERY.— See  post.  Res  Adtudicata. 

FORTHCOMING  AND  DELIVERY  BONDS,— See  the  title  Forthcoming 
AND  Delivery  Bonds,  vol.  6,  p.  387,  and  references  there  given.  In  addition,  as 
to  gaining  a  redelivery  bond  in  an  action  of  replevin,  see  post,  Replevin. 

FORWARDING  AGENT.— See  note  391 -2a. 


notified  by  an  employee  of  the  defect, 
throws  upon  the  master  the  risk  of  in- 
jury to  such  employee  from  such  defect 
until  the  time  for  performance  has  ex- 
pired, or  that  it  does  away  with  or  leaves 
to  the  jury  what  otherwise  would  be  neg- 
ligence as  a  matter  of  law.  Cuba  R.  Co. 
r.  Crosby,  222  U.  S.  473,  56  L.  Ed.  274, 
32  S.  Ct.  132.  reversing  judgment  (1909) 
170  F.  369,  95  C.  C.  A.  539.  See  ante, 
COMMON  LAW,  p.  245. 

"In  the  case  at  bar  the  court  was  deal- 
ing with  the  law  of  Cuba,  a  country  in- 
heriting the  law  of  Spain,  and,  we  may 
presume,  continuing  it  with  such  modifi- 
cations as  later  years  may  have  brought. 
There  is  no  general  presumption  that  that 
law  is  the  same  as  the  common  law.  We 
properly  may  say  that  we  all  know  the 
fact  to  be  otherwise.  Goodyear  Tire  & 
Rubber  Co.  v.  Rubber  Tire  Wheel  Co., 
164  Fed.  869.  Whatever  presumption 
there  is  purely  one  of  fact,  that  may  be 
corrected   by   proof.     Therefore,   the   pre- 


sumption should  be  limited  to  cases  in 
which  it  reasonably  may  be  believed  to 
express  the  fact.  Generally  speaking,  as 
between  two  common-law  countries,  the 
common  law  of  one  reasonably  may  be 
presumed  to  be  what  it  is  decided  to  be 
in  the  other,  in  a  case  tried  in  the  latter 
state.  But  a  statute  of  one  would  not 
be  presumed  to  correspond  to  a  statute 
in  the  other,  and  when  we  leave  common- 
law  territory  for  that  where  a  different 
system  prevails,  obviously,  the  limits 
must  be  narrower  still."  Porto  Rico 
Sugar  Co.  V.  Lorenzo,  222  U.  S.  481,  56 
L.   Ed.  277,  32  S.  Ct.  132. 

381-2a.  Injury  from  forgery. — United 
States  V.  Plyler,  222  U.  S.  15,  56  L.  Ed. 
70,    32    S.    Ct.    6. 

391-2a.  Business  of  forwarding  agents. 
— "The  business  so  carried  on  by  these 
agents  was  thus  described  by  Mr.  Com- 
missioner Knapp  in  his  dissenting  opin- 
ion, to  which  we  have  previously  referred 
(14  L  C.  C.  Rep.  440):     'The  business  of 


596 


Vol.  VI.  FRAUD  AND  DECEIT.  391 

FOURTEENTH  AMENDMENT.— See  ante.  Civil  Rights,  p.  236;  Consti- 
tutional Law,  p.  264. 

FRANCHISE. — See  ante,  Banks  and  Banking,  p.  184;  Corporations,  p. 
381 ;  Estoppel,  p.  hho ;  post,  Street  Railways  ;  Telegraphs  and  Tele- 
phones; Water  Companies  and  Waterworks. 


FRAUD  AND  DECEIT. 
IV.  Manner  of  Perpetration,  598. 

A.  In  General  598. 

1.  By  Agent,  598. 
C.  By  Concealment   or  Nondisclosure,   598. 

1.  Concealment  or  Suppression,  598. 

V.  Operation  and  Efifect,  598. 

A.  Effect  on  \'alidity  of  Transaction,  598. 
1.  IMakes  Transaction  \^oidable,  598. 

VI.  Actions  and  Remedies,  598. 

A.  Jurisdiction,  598. 

1.  In  Equity,  598. 

b.  Remedy  at  Law  Must  Be  Inadequate,  598. 

B.  Right  of  Action  and  Relief  Afforded,  599. 

2.  Action  of  Deceit,  599. 

7.  Substantial    Justice  Afforded,  599. 

C.  Parties,  599. 

2.  Parties  Defendant,  599. 
G.  Evidence,  599. 

1.  Presumptions  and  Burden  of  Proof,  599. 

a.  Fraud  Never  Presumed  but  to  Be  Proved,  599. 

b.  Burden  of  Proof,  599. 

2.  Competency,   599. 

d.  Parol  Evidence,  599. 

e.  Circumstantial    Evidence,    599. 

3.  Sufificiency  and  Weight,  599. 

b.  Circumstantial    Evidence,    599. 

CROSS  REFERENCES. 

See  the  title  Fraud  and  Deceit,  vol.  6,  p.  394,  and  references  there  given. 

In  addition,  see  ante,  Banks  and  Banking,  p.  184;  Corporations,  p.  381 ;  In- 
surance ;  Mortgages  and  Deeds  of  Trust  ;  Officers  and  Agents  of  Private 
Corporations;  Public  Lands;  Quieting  Title;  Removal  of  Causes;  Re- 
scission, Cancellation  and  Reformation  ;  Stock  and  Stockholders. 

the  forwarding  agent,  in  so  far  as  is  ma-  transported.     The  consignee  of  tlie  ship- 

terial  to  the   question  involved,   is   to  col-  ment,    whoever    he  may    be,    receives    the 

lect  less  than  carload  shipments  from  dif-  carload  and  distributes  its  contents  to  the 

ferent  consignors,  combine  such  shipments  parties  for  whom  they  are  intended.     The 

into    carloads,    and    ship  the    same  in    the  forwarding  agent  finds  his   compensation 

name  of  the  forwarding  agent,  or  of  the  and    profit  in    the  difference    between    the 

owner  of  one  of  the  less  than  carload  ship-  carload  and  less  than  carload  rates.'  "     In- 

ments    to    one    consignee,    who    may    be  terstate    Commerce    Coinm.    v.    Delaware, 

the    forwarding     agent    himself,     another  etc.,  R.  Co.,  220  U.  S.  235,  243,  5,i  L.  Ed. 

forwarding  agent  at  the  point  of  destina-  448,     31    S.    Ct.    392.      See   post,     IXTER- 

tion  with  whom  he  has  business  relations.  STATE  AND   FOREIGN  COMMERCE, 
or    the     owner    of  a  part    of  the    property 

597 


404-426  FRAUD  AND  DECEIT.  Vol.  VI. 

IV.  Manner  of  Perpetration. 

A.  In  General — 1.  By  Agent. — A  principle  can  not  claim  the  benefit  of  a 
fraud  committed  by  his  agents;  and  a  corporation  can  not  obtain  the  benefits  of 
a  fraudulent  transaction  where  knowledge  of  the  fraud  on  the  part  of  its  offi- 
cers is  to  be  imputed  to  the  corporation  itself. ^^'^ 

C.  By  Concealment  or  Nondisclosure — 1.  Concealment  or  Suppression. 
— The  deceit  which  avoids  a  contract  need  not  be  by  misrepresentation  in  words. 
It  exists  where  the  party  who  obtains  the  consent  does  so  by  means  of  concealing 
or  omitting  to  state  material  facts,  with  intent  to  deceive,  by  reason  of  which 
omission  or  concealment  the  other  party  was  induced  to  give  a  consent  which  he 
would  not  otherwise  have  given.  This  is  the  rule  of  the  common  law  and  also 
that  of  the  Philippine  Civil  Code,  and  in  both  cases  is  based  upon  the  proposition 
that,  under  all  of  the  circumstances  of  the  case,  it  was  the  duty  of  the  party  who 
obtained  the  consent,  acting  in  good  faith,  to  have  disclosed  the  facts  which  he 
concealed.  This  was  the  Spanish  law  before  the  adoption  of  the  code.  In  such 
cases  concealment  is  equivalent  to  misrepresentation.^^^ 

The  words  "Insidious  machinations"  in  article  1269,  Philippine  Civil 
Code,  providing  when  "there  is  deceit"  in  obtaining  "consent"  of  a  contracting 
party,  may  be  said  to  mean  a  deceitful  scheme  or  plot  with  an  evil  design,  or,  in 
other  words,  with  a  fraudulent  purpose. ^^"^ 

V.  Operation  and  Effect. 
A.  Effect  on  Validity  of  Transaction — 1.  Makes  Transaction  Voidable. 
— Where  one  of  the  contracting  parties  is  induced  to  execute  a  contract  by  fraud 
or  deceit,  such  contract  is  voidable  at  the  election  of  the  party  afifected  thereby .'''^^ 

VI.  Actions  and  Remedies. 
A.  Jurisdiction — 1.  In  Equity — b.  Remedy  at  Law  Must  Be  Inadequate. — 
Equity  does  not  now  take  jurisdiction  in  cases  of  fraud  where  the  relief  prop- 
erly obtained  on  that  ground  can  be  obtained  in  a  court  of  law,  and  where,  so  far 
as  necessary,  discovery  may  be  obtained  as  well  as  in  equity. ^^'^ 

404-29a.  Agent. — McCaskill  Co.  v.  United  successful    result.    Strong    v.    Repide,    213 

States,    216    U.    S.    504,    54    L.    Ed.    509,    30  U.  S.  419,  53  L.  Ed.  853,  29  S.  Ct.  521. 

S.   Ct.  386.     See  post,  OFFICERS  AND  417-73a.    Transaction    voidable.— Strong 

AGENTS    OF     PRIVATE    CORPORA-  v.   Repide,  213   U.   S.  419,   53   L.   Ed.   853, 

TIONS.  29  S.  Ct.  521. 

411-55a.     Suffusion   of   facts.— Strong   z\  If  the  purchase  of  stock  is  obtained  by 

Repide,  213   U.   S.   419,   53   h.   Ed.   853,   29  reason  of  the  purchase  is  fraud  or  deceit, 

S    Ct    521  it  is  immaterial  whether  the  agent  of  the 

'411-55b.  Insidious  machinations.-Strong  seller  had  the  power  to  sell  the  stock  or 

V.   Rep.de.  213  U.  S.  419,  53  L.  Ed.  853,  29        "°t-    ^[   ^""^"^    %'    ^^^^'^   l""'^^^^' J}l^J^]! 
c;    Ct      •'>-[  '-^^  "°^  stand.  Strong  v.  Repide,  213  U.  S. 

Purchase  of  stock  by  director.— A  pur-  ^he  purchaser  of  corporate  stock  can 
chase  of  stock  m  a  corporation  by  a  di-  not  escape  liability  for  his  fraud  in  con- 
rector  and  owner  of  the  three  fourths  of  cealing  facts  affecting  its  value  which  he 
the  entire  capital  stock  who  was  also  ^^g  ;„  gooj  f^ith  bound  to  disclose,  on 
administrator  general  of  the  company,  t^g  theory  that,  because  of  the  insistence 
and  engaged  in  the  negotiations  which  of  the  seller  that  her  agent  was  not  au- 
finally  led  to  the  sale  of  the  company  s  thorized  to  make  the  sale,  there  had  never 
lands  to  the  Philippine  Islands  govern-  ^een  any  consent  on  her  part,  obtained 
ment  at  a  price  which  greatly  enhanced  by  fraud  or  otherwise,  where  the  court 
the  value  of  the  stock,  was  fraudulent  as  fi^ds  that  the  agent's  authority  was  suf- 
procured  by  'insidious  machinations  m-  ficient,  since,  in  legal  effect,  her  consent 
eluding  the  execution  of  the  contract  of  ^m  ^g  deemed  induced  by  the  fraud, 
sale,  within  the  meaning  of  P.  I.  Code,  Strong  v.  Repide,  213  U.  S.  419,  53  L.  Ed. 
art.    1269,    denning   deceit,   where    he    em-  g53    29  S    Ct    521 

ployed    an    agent    to    make    the    purchase,  426-lla.      Adequate    remedy    at    law.— 

conceahng  both   his   own   identity  as   the  Equitable  Life  Assur.  Soc.  v.   Brown,  213 

purchaser,  and  his  knowledge  of  the  state  u.    S.    25,    50,    53    L.    Ed.    682,    29    S.    Ct. 

of    the    negotiations    and    their    probable  494 

598 


Vol.  VI. 


FRAUD  AND  DBCBLT. 


431-447 


B.  Right  of  Action  and  Relief  Afforded — 2.  Action  of  Deceit. — See 
note  2h. 

7 .  SuBSTANTiAi,  JUSTICE  AFFORDED. — A  iiian  by  committing  a  fraud  does  not 
become  an  outlaw  and  caput  lupinum.  He  may  have  no  standing  to  rescind  his 
transaction,  but  when  it  is  rescinded  by  one  who  has  a  right  to  do  so  the  courts 
will  endeavor  to  do  substantial  justice  so  far  as  is  consistent  with  adherence  to 

]^^y  31a 

C.  Parties — 2.  Parties  Defendant. — See  note  34. 

G.  Evidence — 1.  Presumptions  and  Burden  of  Proof — a.  Fraud  Never 
Presumed  but  to  Be  Proved. — See  note  63. 

b.  Burden  of  Proof. — Fraud  is  not  presumed,  and  one  who  bases  a  right  or 
defense  upon  it  should  allege  and  prove  it.  This  rule  applies  to  the  government 
as  well  as  to  individuals.  Where  the  government's  answers  contain  no  allegation 
of  fraud,  silence  of  the  findings  may  rightfully  be  taken  as  showing  that  more  was 
proved.^^^ 

2.  Competency — d.  Parol  Evidence. — In  a  suit  in  equity  between  parties,  in 
which  fraud,  oppression  and  undue  influence  are  charged,  the  court  is  not  con- 
cluded by  that  which  appears  on  the  face  of  the  papers,  but  may  institute  an  in- 
quiry into  the  real  facts  of  the  transaction."^ ^^ 

e.  Circumstantial  Evidence. — See  post,  "Circumstantial  Evidence,"  VI, 
G,  3,  b. 

3.  Sufficiency  and  Weight — b.    Circuiiistantial  Evidence. — See  note  88. 


431-25.  Recovery  of  damages  resulting 
from  false  report  by  national  bank  direc- 
tor.—See  ante,  BANKS  AND  BANK- 
ING, p.  184. 

432-31a.  Substantial  justice  afforded.— 
Stoffela  r.  Nugent,  217  U.  S.  499,  54  L. 
Ed.   856,   30   S.    Ct.    600. 

433-34.  Necessary  parties  defendants. — 
The  mother's  estate  and  her  children  by 
a  second  marriage  are  necessary  parties 
defendant  to  a  bill  which  seeks  to  set 
aside  for  fraud  a  family  settlement  made 
between  the  mother  and  the  children  of 
the  first  marriage,  to  annul  the  title 
which  apparently  flowed  therefrom,  to 
avoid  collaterally  decrees  of  the  Porto 
Rican  courts  concerning  the  same,  and 
to  set  aside,  as  simulated  and  fraudulent, 
the  sales  made  in  virtue  of  the  title  ap- 
parently vested  by  the  settlement,  where 
such  bill,  though  alleging  that  the  prop- 
erty transferred  to  the  mother  by  such 
settlement  was  acquired  by  the  husband 
by  inheritance,  contains  no  averment  con- 
cerning the  property  allotted  to  the 
daughters  which  tends  to  rebut  the  legal 
presumption  of  community  as  to  the  prop- 
erty acquired  during  marriage,  which  the 
bill  seeks  to  administer  and  distribute. 
Gargot  V.  Rubio,  209  U.  S.  283,  52  L.  Ed. 
794,   28    S.    Ct.    548. 

439-63.  Fraud  not  presumed. — See  post, 
"Burden  of  Proof,"  VI,  G,  1,  b. 

440-69a.  Burden  of  proof. — United 
States  c'.  Colorado  Anthracite  Co.,  225 
U.   S.  219,  56  L.   Ed.   1063,  32  S.   Ct.  617. 

Conspiracy  through  attorney  or  agent  to 
defraud. — A  person  alleging  that  there  was 
an  agreement  or  understanding  between 
an  administrator  and  certain  persons  hav- 


ing claims  against  the  estate  in  his  hands 
to  fraudulently  obtain  the  allowance  and 
payment  of  such  claims,  and  who  alleges 
that  such  parties  so  conspired  through 
their  attorney  who  represented  both  the 
claimants  and  the  administrator  inust 
prove  that  all  conspired  by  showing  that 
the  same  attorney  was  the  agent  of  all  to 
bind  all.  It  can  not  be  presumed  that  he 
was  attorney  for  all  from  the  fact  of  his 
having  advised  the  payment  of  all  the 
claims,  and  from  the  fact  that  he  was  at- 
torney for  several  of  the  claimants. 
McDaniel  v.  Traylor,  212  U.  S.  428,  53  L. 
Ed.   584,   29   S.    Ct.   343. 

442-78a.  Parol  evidence. — Wagg  v.  Her- 
bert, 215  U.  S.  546,  551,  54  L.  Ed.  321,  30 
S.  Ct.  218.  See  post,  PAROL  EVI- 
DENCE. 

447-88.  Purchase  of  land  at  tax  rate. — 
Fraud  in  connection  with  purchases  of 
land  at  tax  and  execution  sales  is  not  es- 
tablished by  questionable  evidence  of 
value,  and  the  fact  that  the  purchaser 
was  a  man  of  great  power  and  influence, 
and  bought  the  land  at  much  less  than 
the  value  set  by  the  owners,  from  which 
it  was  sought  to  be  inferred  that  judges, 
mayors,  appraisers,  and  possible  pur- 
chasers, all  were  frightened  or  corrupt. 
Ubarri  v.  Laborde,  214  U.  S.  168,  53  L. 
Ed.  953,  29  S.  Ct.  549;  Laborde  v.  Ubarri, 
21,4  U.  S.  173,  53  L.  Ed.  955,  29  S.  Ct. 
552. 

Mode  of  payment  of  purchase  price. — 
Evidence  that  a  vendee  gave  the  check 
of  a  third  person  for  the  purchase  money, 
although  the  giving  of  the  check  could 
not  have  induced  the  prior  consent  of 
the  vendor  to  the  sale,  is  proper  evidence 


590 


463  FRAUDULENT,  ETC.,  CONVEYANCES.  Vol.  VI. 


FRAUDS,  STATUTE  OF. 

VII.  Requirements  of  the  Statute,  600. 

B.  The  Writing,  600. 

2.  Sufficiency  of  the  Writing.  600. 
a.  In  General.  600. 

CROSS  REFERENCES. 

See  the  title  Frauds,  Statute  of,  vol.  6,  p.  451,  and  references  there  given. 

Vn.  Requirements  of  the  Statute. 

B.   The  Writing — 2.  Sufficiency    of    the    Writing — a.  In  General. — See 
note  82. 


FRAUDULENT  AND  VOLUNTARY  CONVEYANCES. 

III.  Transfers  or  Alienations  Made  or  Obtained  with  Intent  to  Hinder, 
Delay  or  Defraud  Creditors,  601. 

C.  Elements  and  Badges  of  Fraud,  601. 

1.  Intent  in  General.  601. 
a.  Of  Grantor,  601. 

8.  Preference  to  Creditors,  601. 

a.  Lawful  in  Absence  of  Statute,  601. 

b.  Prohibition  by  Statute,  601. 

9.  Retention  of   Possession  or  Reservation  of   Benefits  by  Grantor, 

601. 

a.  Retention  of  Possession,  601. 

b.  Reservation  of  Benefit,  601. 

VI.  Remedies,  603. 

D.  Parties,  603. 

1.  Parties  Plaintiff,  603. 
F.  Evidence,  603. 

2.  Admissibility,  603. 

c.  Declarations   and   Admissions,   603. 
J.  Verdict  and  Findings,  603. 

CROSS  REFERENCES. 

See  the  title  Fraudulent  and  \"oluntarv  Conveyances,  vol.  6,  p.  472,  and 
references  there  given. 

In  addition,  see  ante.  Appeal  and  Error,  p.  34;  Bankruptcy,  p.  168;  Chat- 
tel Mortgages,  p.  230. 

As  to  constitutionality  of  statutes  regulating  sale  in  bulk  of  stock  in  trade,  see 

to  show  that  the  purchaser's  concealment  213  U.  S.  419.  53  L.  Ed.  853,  29  S.   Ct.    521. 
of  his  identity  was  not  a  mere   inadvert-  463-82.    Formal  absurdities  in  a  written 

ent    omission,    an    omission    without    any  contract     for    the    sale     of    land    do     not 

fraudulent   or   deceitful   intent,   but   was   a  make   the    contract    insufficient    under   the 

studied    and    intentional    omission    to    be  statute    of     frauds,    where    it     leaves    no 

characterized  as  part  of  the  deceitful  ma-  doubt  as  to  who  was  the  purchaser,  who 

chinations     to     obtain    purchase     without  the    seller,    what    the    land,    or    what    the 

disclosing    facts    which    would    have     re-  terms.    (1911),    Lenman   v.   Jones.    222    U. 

suited  in  the  vendor's  demanding  a  higher  S.  51,  56  L.  Ed.  89,  32  S.  Ct.  18,  afitirming 

price  or  refusing  to  sell.  Strong  v.  Repide,  decree   (1909),  33  App.  D.  C.  7. 

600 


Vol.  Yl.  FRAUDULBXT,  ETC.,  COXVBYANCES.  479-491 

ante,  Constitutional  Law,  p.  264 ;  Due  Process  of  Law,  p.  475 ;  post,  Police 
Power.     See,  also,  post.  Sales. 

III.  Transfers  or  Alienations  Made  or  Obtained  with  Intent  to  Hinder, 
Delay  or  Defraud  Creditors. 

C.  Elements  and  Badges  of  Fraud — 1.  Lxtent  in  General — a.  Of  Grantor. 
— See  post,  "Preference  to  Creditor."  III.  C.  8.  A  conveyance  made  in  good 
faith,  whether  for  an  antecedent  or  a  present  consideration,  is  not  forbidden  by 
statutes  against  fraudulent  conveyances,  notwithstanding  that  the  effect  may  be 
that  it  hinders  or  delays  creditors  by  removing  from  their  reach  assets  of  the 
debtor.!!^^ 

Actual  Fraud. — The  common  law  and  the  statutes  of  Elizabeth  have  always 
been  held  to  require,  in  order  to  invalidate  a  conveyance  as  fraudulent  as  against 
creditors,  that  there  shall  be  actual  fraud ;  and  it  makes  no  difference  that  the 
conveyance  was  made  upon  a  valuable  consideration,  if  made  for  the  purpose  of 
hindering,  delaying  or  defrauding  creditors.  The  question  of  fraud  depends 
upon  the  motive.-'"^ 

8.  Preference  to  Creditors — a.  Lazcful  in  Absence  of  Statute. — The  mere 
fact  that  one  creditor  was  preferred  to  another,  or  that  the  conveyance  might 
have  the  effect  to  secure  one  creditor  or  to  deprive  others  of  the  means  of  ob- 
taining payment,  is  not,  in  absence  of  the  statute,  sufficient  to  avoid  a  convey- 
ance as  fraudulent  as  against  creditors ;  but  it  is  uniformly  recognized  that,  act- 
ing in  good  faith,  a  debtor  may  prefer  one  or  more  creditors.'* ^'^ 

Porto  Rico. — Contracts  made  by  an  insolvent  debtor,  which,  being  upon  ade- 
quate consideration,  are  not  fraudulent  simulations,  can  not  be  rescinded  under 
the  law  of  Porto  Rico,  merely  because  their  execution  operates  to  give  a  prefer- 
ence in  favor  of  a  creditor. ^^^  - 

b.  Prohibition  b\  Statute. — Under  Bankruptcy  Act. — See  ante.  Bankruptcy, 
p.  168. 

9,  Retention  of  Possession  or  Reservation  of  Benefits  by  Grantor — a. 
Retention  of  Possession — b.  Reservation  of  Benefit. — There  are  some  cases 
which  to  hold  that  if  one  makes  a  general  assigmxient  to  secure  creditors,  and  in- 
serts a  clause  reserving  to  himself  any  surplus  that  he  thereby  delays  his  creditors 
who  might  seek  that  surplus  until  the  trust  should  be  wound  up,  and  therefore 
comes  under  the  condemnation  of  the  statute  against  conveyances  to  hinder,  de- 
lay or  defraud  creditors,  however  innocent  his  purpose,  or  the  existence  of  a 

479-18a.    Intent    of    grantor. — Coder    v.  221  U.  S.  333,  55  L.  Ed.  758,  31  S.  Ct.  5T5; 

Arts.  213  U.   S.  223,  242.  53  L.   Ed.  772,  29  Will  v.  Tornabells,  217  U.  S.  47,  54  L.  Ed. 

S.  Ct.  436.  660,  30  S.  Ct.  424. 

480-20a.     Actual   fraud. — Coder   v.   Arts,  An  attempt  to  prefer  is  not  to  be  con- 

213  U.  S.  223,  242,  53  L.  Ed.  772,  29  S.  Ct.  founded  with   an   attempt  to   defraud,   nor 

436.  a   preferential    transfer   with   a    fraudulent 

Under  Porto  Rico  civil  code. — Only  con-  one.    In   a   preferential   transfer   the   fraud 

tracts   in   fraud   of  the   rights   of  creditors  is   constructive   or   technical   consisting  in 

are    embraced    in   the    provision    of    Porto  the  infraction  of  that  rule  of  equal  distri- 

Rico    Civ.    Code,    art.    1291,    including    in  bution    among    all    creditors,    which    it    is 

the   enumeration   of   contracts  which   may  the  policy  of  law  to  enforce  when  all  can 

be  rescinded,  "those  executed  in  fraud  of  not  be  fully  paid.  In  a  fraudulent  transfer 

creditors,    when    the    latter    can    not    re-  the    fraud    is    actual,    the    grantor   has    se- 

cover   in    any   other   manner   what   is    due  cured    an    advantage    for    himself    out    of 

them,"   and   such   provision   does   not   give  what  in  law  should  belong  to  his  creditors, 

the  right  to  rescind  a  contract  made  by  an  and  not  to  him.  Coder  v.  Arts.  213   U.   S. 

insolvent  debtor,  merely  because,  without  223,  241,  53   L.   Ed.   722,  29   S.   Ct.   436. 

rescission,  the  creditor  can  not  otherwise  491-50a.     Preference     lawful     in     Porto 

recover  his  debt.     Will  v.  Tornabells,  217  Rico.— Will    v.   Tornabells.   217    U.    S.    47. 

U.  S.  47,  54  L.   Ed.   660,  30  S.   Ct.  424.  54   L.    Ed.   660,   30  S.    Ct.   424. 

489-49a.    Lawful   in  absence   of  statute.  Mortgagor    in    chattel    mortgage. — See 

—Coder  v.  Arts,  213  U.  S.  223,  242,  53  L.  ante,   CHATTEL   MORTGAGES,   p.   230. 
Ed.  772,  29  S.  Ct.  436;  Merillat  v.  Hensey. 

601 


501-502 


FRAUDULENT,   ETC.,   CONVEYANCES. 


Vol.  VI. 


surplus."^^^  There  are  some  New  York  cases  which  seem  to  go  so  far  and  per- 
haps others,  but  the  same  court  held  that  the  principle  did  not  apply  to  assign- 
ments in  good  faith  "of  a  part  of  the  debtor's  property  to  creditors  themselves, 
for  the  purpose  of  securing  particular  demands.'"^'*''  That  the  mere  reservation 
of  a  balance  under  an  assignment  to  pay  debts,  one  or  many,  is  enough,  as  mat- 
ter of  law,  to  make  the  transaction  void,  whether  the  reservation  be  in  or  out  of 
the  instrument,  has  not  been  generally  accepted  ;'•*'=  and  the  New  York  rule  has 
been  impliedly  disapproved  by  the  supreme  court  of  the  United  States.'^^^ 

The  reservation  which  the  law  pronounces  fraudulent  is  of  some  pe- 
cuniary benefit  at  the  expense  of  creditors,  especially  when  secretly  secured,  such 
benefit  to  the  assignor  being  presumed  a  prime  purpose  of  the  conveyance.''' ^^  No 
amount  of  evidence  will  assign  to  an  instrument  an  operation  which  the  law  does 
not  assign  to  it.  Thus,  a  mere  deed  of  gift  which  actually  deprives  existing  cred- 
itors of  property  which  was  subject  to  their  claims,  or  a  transfer  of  property 
grossly  disproportioned  to  a  debt  secured  under  a  conveyance  apparently  abso- 
lute, but  subject  to  a  secret  agreement  that  the  surplus  should  be  held  for  the  as- 
signor, can  not  be  saved,  for  the  necessary  legal  efifect  is  to  hinder,  delay,  or  de- 
fraud creditors,  and  the  law  can  but  assign  to  such  conveya,nce  the  intent  which 
must  indubitably  appear  from  the  facts."^^^ 

The  question  is  not  one  of  law  so  much  as  it  is  one  of  fact  and  good  faith. 
The  question  of  fraudulent  intent  in  such  case  is  a  question  of  fact,  and  not  of 
law.'^'^'^ 

Chattel  Mortgages. — Whatever  may  be  the  rule  with  regard  to  general  as- 
signments for  the  benefit  of  creditors,  there  can  be  no  doubt  that,  in  cases  of  chat- 
tel mortgages,  the  reservation  of  a  surplus  to  the  mortgagor  is  only  an  expres- 
sion of  what  the  law  would  imply  without  a  reservation,  and  is  no  evidence  of  a 
fraudulent  intent.'^^'' 


501-74a.    Reservations    of    benefit. — Me- 

rillat  V.  Hensey,  221  U.  S.  333,  55  L.  Ed. 
758,  31  S.  Ct.  575.  See  ante,  ASSIGN- 
MENTS FOR  THE  BENEFIT  OF 
CREDITORS,  p.  154. 

501-74b,  Merillat  v.  Hensey,  221  U.  S. 
333,  55  L.   Ed.  758,  31  S.   Ct.   575. 

"The  conveyance,"  said  the  New  York 
court,  "whatever  may  be  its  form,  is  in 
effect  a  mortgage  of  the  property  trans- 
ferred. A  trust  as  to  the  surplus  results 
from  the  nature  of  the  security,  and  is 
not  the  object,  or  one  of  the  objects,  of 
the  assignment.  Whether  expressed  in  the 
instrument  or  left  to  implication  is  im- 
material. The  assignee  does  not  acquire 
the  legal  and  equitable  interest  in  the 
property  conveyed,  subject  to  the  trust, 
but  a  specific  lien  upon  it.  The  residuary 
interest  of  the  assignor  may,  according 
to  its  nature,  or  that  of  the  property,  be 
reached  by  execution  or  by  bill  in  equity. 
The  creditor  attaches  that  interest  as  the 
property  of  the  debtor,  and  is  not  ob- 
liged to  postpone  action  until  the  de- 
termination of  any  trust.  He  is  therefore 
neither  delayed,  hindered,  or  defrauded 
in  any  legal  sense."  Merillat  v.  Hensey, 
221  U.  S.  333,  55  L.  Ed.  758,  31  S.  Ct. 
575. 

501-74C.  Reservation  of  balance. — Me- 
rillat V.  Hensey,  221  U.  S.  333,  55  L.  Ed. 
758,    31    S.    Ct.    575. 


501-74d.  New  York  rule  not  favored. — 

Merillat  v.  Hensey,  221  U.  S.  333,  55  L. 
Ed.  758,  31  S.  Ct.  575,  following  and  ap- 
plying in  Huntley  v.  Kingman,  152  U.  S. 
527,    38    L.    Ed.    540. 

In  Huntley  v.  Kingman,  152  U.  S.  527. 
38  L.  Ed.  540,  the  New  York  rule  is  im- 
pliedly disapproved.  "The  assignment  in 
that  case  was  of  a  stock  of  merchandise 
to  a  third  person  as  trustee,  to  sell  and 
pay  a  particular  debt  and  'hold  the  re- 
mainder subject  to  the  order  of  the  as- 
signor.' The  instrument  was  attached  as 
fraudulent  in  law  by  reason  of  this  reser- 
vation, and  the  trial  court  instructed  the 
jury  to  find  for  the  plaintiff  on  account  of 
this  reservation.  This  court  reserved  the 
judgment,  holding  the  charge  erroneous." 
Merillat  v.  Hensey,  221  U.  S.  333,  55  L. 
Ed.  758,  31  S.  Ct.  575. 

501-75a.  Reservations  pronounced 
fraudulent. — Merillat  v.  Hensey,  221  U.  S. 
333,  55  L.  Ed.  758,  31  S.  Ct.  575,  following 
Lukins  V.  Aird.  6  Wall.  78,  79,  18  L.  Ed. 
750. 

501-75b.  Merillat  v.  Hensey,  221  U.  S. 
333,  55  L.   Ed.  758,  31   S.   Ct.  575. 

502-76a.  Question  of  fact. — Merillat  v. 
Hensey,  221  U.  S.  333.  55  L.  Ed.  758,  31  S. 
Ct.  575.  See  §  1120  District  of  Columbia 
Code    (31   Stat,  at  L.   ch.   854). 

502-76b.    Chattel  mortgage. — Merillat  z\ 


602 


\'ol.   \'l. 


FRAUDULENT,   ETC.,   CONVEYANCES. 


502-532 


An  assignment,  as  security  for  a  debt  of  a  cause  of  action  for  dam- 
ages under  an  indemnity  bond,  does  not  as  a  matter  of  law  hinder,  delay,  or 
defraud  creditors  because  of  a  reservation  in  favor  of  the  assignor  of  any  sur- 
plus remaining  after  paying  the  debt,  by  an  agreement  between  the  parties,  not 
disclosed  in  the  assignment  itself,  and  not  filed,  as  was  such  assignment,  with  the 
clerk  of  the  court  in  which  the  action  was  pendingJ^*^ 

VI.  Remedies. 

D.  Parties — 1.  Parties  Plaintiff. — See  note  34. 

F.  Evidence — 2.  Admissibility — c.  Declarations  and  Admissions. — State- 
ments made  by  a  widow  with  reference  to  conversations  with  her  husband  are 
inadmissible  to  show  that  certain  transactions  on  his  part  were  in  fraud  of  cred- 
itors, especially  where  she  was  not  herself  called  as  a  witness. ^^^ 

J.  Verdict  and  Findings — Interpretation  and  Effect. — A  finding  that  the 
evidence  in  a  creditors'  suit  failed  to  establish  that  a  conveyance  by  an  insolvent 
debtor  and  a  mortgage  executed  by  his  grantee  were  voluntarily  made  to  hinder 
and  delay  the  complaining  creditors  in  the  collection  of  their  debts  negatives  the 
existence  of  fraudulent  simulation,  which  was  the  controlling  issue  in  the  suit, 
although  the  court,  in  its  conclusions  of  law,  announced  that  an  insolvent  debtor 
had  the  right  to  give  a  preference,  which  must  be  regarded  as  intended  to  be  re- 
sponsive solely  to  other  findings  of  fact,  tending  to  establish  the  giving  of  such 
a  preference.''^''  A  statement,  accompanying  the  findings  of  fact  in  a  creditors' 
suit,  which  are  not  reviewable  in  the  federal  supreme  court,  embraces  a  state- 
ment accompanying  the  findings  to  the  effect  that  certain  conversations  between 
an  attorney  and  client  were  excluded  because  the  plan  outlined  by  the  latter  did 


Hensey,  221  U.  S.  333,  55  L.  Ed.  758,  31  S. 
Ct.    575. 

"This  was  the  ruling  of  the  court  of 
appeals  of  New  York  in  Leitch  v.  Holli- 
ster,  4  N.  Y.  211,  216,  where  the  assign- 
ment was  to  the  creditors  themselves  for 
the  purpose  of  securing  their  demands. 
'A  trust,'  said  the  court,  'as  to  the  sur- 
plus, results  from  the  nature  of  the  se- 
curity, and  is  not  the  object,  or  one  of 
the  object,  of  the  assignment.  Whether 
expressed  in  the  instruinent  or  left  to  im- 
plication is  immaterial.  The  assignee  does 
not  acquire  the  entire  legal  and  equitable 
interest  in  the  property  conveyed,  sub- 
ject to  the  trust,  but  a  specific  lien  upon 
it.  The  residuary  interest  of  the  assignor 
may,  according  to  its  nature,  or  that  of 
the  property,  be  reached  by  execution  or 
by  bill  in  equity.' "  Merillat  v.  Hensey. 
221  U.  S.  333,  55  L.  Ed.  758,  31  S.  Ct. 
575. 

502-76C.  Assignment  of  cause  of  action 
for  damages  as  collateral  security. — 
Merillat  v.  Hensey,  221  U.  S.  333,  55  L. 
Ed.  758,  31  S.  Ct.  575,  affirming  32  App. 
D.   C.  64. 

The  assignment  here  was  of  a  mere 
chose  in  action,  not  subject  to  legal  proc- 
ess, but  to  be  reached  through  equity 
only.  There  was  no  requirement  of  law 
■that  such  an  assignment  should  be  re- 
corded, and  no  legal  way  to  give  con- 
structive notice.  The  debt  secured  was  an 
honest  one,  and  the  security  was  of  un- 
certain    value     and     character,     involving 


great  expense  and  delay  in  collection.  The 
fact  was  reservation  of  any  surplus  after 
paying  the  debt  secured  was  not  dis- 
closed in  the  assignment  itself  was  a  cir- 
cumstance of  suspicious  character,  but 
not.  as  matter  of  law.  inconsistent  with 
an  honest  intent.  Merillat  v.  Hensey,  221 
U.    S.   333,  55   L.   Ed.   758,   31    S.   Ct.   575. 

"It  did  not  show  fraud  in  fact  or  law 
that  this  assignment  was  not  an  absolute 
.  sale  or  transfer  of  the  chose  assigned, 
but  a  mere  security  for  an  honest  debt.  If 
the  claim  came  to  nothing,  the  debt  was 
unpaid.  If,  as  proved  to  be  the  case, 
enough  was  realized  to  pay  a  part,  the 
rest  is  a  debt  to  be  paid.  But  if  there 
should  be  a  surplus,  what  then?  If  noth- 
ing had  been  agreed  about  the  surplus, 
is  there  any  doubt  that  the  law  would 
have  implied  a  promise  to  account  to  the 
assignor  for  that  surplus?  Is  it,  then,  the 
law  that  the  promise  made  to  do  that 
which,  without  the  promise,  that  law 
would  have  compelled  the  assignee  to  do, 
constitutes  such  evidence  of  fraud  as  to 
be  fraud  in  law?"  Merillat  z\  Hensev, 
221  U.  S.  333,  55  L.  Ed.  758,  31  S.  Ct. 
575. 

521-34.  Trustee  in  bankruptcy. — See 
ante.  BANKRUPTCY,  p.  IfiS. 

526-53a.  Statements  of  widow  of  fraudu- 
lent grantor. — Will  z:  Tornabells,  217  U. 
S.  47.  54  L.   Ed.   660,  ?.0  S.   Ct.  424. 

532-76a.  Interpretation  of  finding. — 
Will  V.  Tornabells,  217  U.  S.  47,  54  L.  Ed. 
660,  30   S.   Ct.  424. 


603 


532-537 


FUNCTION. 


Vol.  VI. 


not  tend  to  establish  a  fraud  on  creditors  so  as  to  exclude  the  claim  of  privilege, 
since  such  statement  really  shows  that  instead  of  rejecting  the  testimony,  the 
court  weighed  and  considered  it,  and  its  finding  that  the  conversation  did  not 
tend  to  show  the  fraud  which  it  was  asserted  it  did  show,  and  which  was  the 
same  fraud  charged  in  the  bill,  was  but  an  expression  of  the  conclusion  of  the 
court  upon  the  facts  involved  in  the  merits  of  controversy.'^®'' 

FRAUDULENT  REPRESENTATIONS.— See  ante.  Fraud  and  Dijceit,  p. 
597. 

FREIGHT.— See  note  7. 

FRIEND  OF  THE  COURT.— See  ante.  Appeal  and  Error,  p.  34. 

FRIVOLOUS  APPEALS. — See  ante.  Appeal  and  Error,  p.  34. 

FROM.— See  note  2. 

FUGITIVE  FROM  JUSTICE.— See  ante.  Extradition,  p.  571. 

FULL  CREW  ACT. — See  post,  Interstate  and  Foreign  Commerce. 

FULL  FAITH  AND  CREDIT  CLAUSE.— See  ante,  Foreign  Judgments, 
Records  and  Judicial  Proceedings,  p.  592;  post.  Stock  and  Stockholders. 

FUNCTION.— See  note  a. 


532-76b.  Statement  accompanying  find- 
ings.—Will  V.  Tornabells,  217  U.  S.  47, 
54    L.    Ed.    660,    30    S.    Ct.    424. 

533-7.  Freight  pending — Freight  for  the 
voyage.— As  to  §§  4283,  42S4,  Rev  Stats., 
according  to  ship  owners  exemption  of  lia- 
bility to  interests  in  vessel  and  freight 
pending,  are  in  pari  materia,  the  two  must 
be  considered  together,  and  therefore  the 
freight  then  pending,  referred  to  in  §  4283, 
is  freight  then  pending  for  "the  same  voy- 
age," or  "for  the  voyage,"  as  these  words 
are  used  in  §  4284.  Sums  prepaid  for 
freight  and  passage  on  the  voyage,  under 
an  absolute  agreement  that  such  sums  are, 
in  any  event,  to  belong  to  the  owner  of 
the  vessel,  must  be  surrendered  as  freight 
then  pending  on  the  voyage,  within  the 
meaning  of  the  statutes.  But  passenger 
and  freight  receipts  earned  by  a  vessel  on 
lier  sailing  from  Havre  to  New  York  need 
not  be  surrendered  as  freight  then  pend- 
ing for  the  voyage,  within  the  meaning  of 
the  statute.  La  Bourgogne,  210  U.  S.  95, 
52  L.  Ed.  973,  28  S.  Ct.  664.  See  ante, 
COLLISION,  p.  243;  post,  SHIPS  AND 
SHIPPING. 

"The  intimate  relation  between  the  pro- 
visions of  the  two  sections,  which  were 
l'<oth  in  the  Act  of  1851,  was  pointed  out 
in  considering  that  act  in  Norwich  Co.  v. 
Wright,  13  Wall.  104,  20  L.  Ed.  585.  .and, 
concerning  the  purpose  and  intent  of  the 
statute,  it  was  observed  in  that  case  (p. 
Ill):  'The  phrase  is  added  "on  the  same 
voyage"  to  confine  the  participation  in  the 
apportionment  to  the  freighters  of  a  sin- 
gle voyage  and  not  to  permit  the  ship 
owner  to  bring  into  the  compensation 
losses  sustained  on  the  prior  or  other  voy- 
ages.' The  statute  thus  confining  those 
who  are  entitled  to  participate  in  the  pend- 
ing freight  to  be  surrendered  to  the  per- 
sons whose  lives  or  property  were  at  risk 
in  the  common  adventure  or  voyage  in 
which  the  freight  was  earned,  and  exclud- 
ing   those    who     may    have    suffered    loss 


from  a  previous  voyage  or  trip,  it  follows 
that,  as  applied  to  the  case  before  us,  the 
then  pending  freight  for  the  same  voyage 
embraced  only  the  distinct  sailing  be- 
tween the  definite  termini,  New  York  and 
Havre,  and  therefore  did  not  include 
freight  earned  on  the  previous  sailing 
from  Havre  to  New  York."  La  Bour- 
gogne, 210  U.  S.  95,  135,  52  L.  Ed.  973,  28 
S.  Ct.  664. 

533-2.  Transportation  from  one  state 
to  another. — A  carrier  does  not  transport, 
nor  deliver  or  receive  live  stock  for  trans- 
portation, from  a  quarantined  portion  of 
a  state,  into  another  state,  in  violation  of 
the  prohibition  of  the  Act  of  March  3, 
1905  (33  Stat,  at  L-  1264,  chap.  1496,  U.  S. 
Comp.  Supp.  1909,  p.  1185),  §  2,  where,  be- 
ing a  connecting  carrier,  it  receives  the 
live  stock  from  the  preceding  carrier,  at 
a  point  in  a  state  other  than  the  quaran- 
tined state,  for  delivery  to  a  point  in  the 
same  state.  There  must  be  a  delivery  for 
or  a  receiving  for  transportation  "from 
the  quarantined  portion  of  any  state  or 
territory  *  *  *  into  any  other  state  or 
territory."  That  reception  and  that  trans- 
portation are  the  elements  of  the  crime 
and  must  exist  to  constitute  it.  United 
States  V.  Baltimore,  etc.,  R.  Co.,  222  U.  S. 
8,  56  L.  Ed.  68,  32  S.  Ct.  6.  See  post,  IN- 
TERSTATE AND  FOREIGN  COM- 
MERCE. 

537-a.  Function  of  element  of  a  combi- 
nation.— "The  distinction  between  a  prac- 
tically operative  mechanism  and  its  func- 
tion is  said  to  be  difficult  to  define.  Rob- 
inson on  Patents,  §  144,  et  seq.  It  be- 
comes more  difficult  when  a  definition  is 
attempted  of  a  function  of  an  element  of 
a  combination  which  are  the  means  by 
which  other  elements  are  connected  and 
by  which  they  coact  and  make  complete 
and  efficient  the  invention."  Continental 
Paper  Bag  Co.  v.  Eastern  Paper  Bag  Co., 
210  U.  S.  405,  422,  52  L.  Ed.  1122,  28  S.  Ct. 
748.     See  post,  PATENTS. 


604 


Vol.  VI. 


GAMB  AND  GAME  LAWS. 


543 


FUTURE  EARNINGS.— See  ante,  Banks  and  Banking,  p.  184. 

GAMBLING  CONTRACTS.— See  the  title  Gambling  Contracts,  vol.  6,  p. 
5Z7,  and  references  there  given.  In  addition,  see  post.  Interstate  and  Foreign 
Commerce:.  For  construction  of  a  state  statute  which  provides  that  gambling 
contracts  shall  not  be  enforced,  see  post,  Jurisdiction.  As  to  denying  to  the 
judgments  of  the  courts  of  another  state  the  full  faith  and  credit  secured  by  the 
United  States  constitution,  because  the  cause  of  action  may  have  arisen  out  of 
a  gambling  transaction  which  the  laws  of  the  former  state  declare  to  be  invalid 
and  unenforcible,  see  ante.  Foreign  Judgments,  Records  and  Judicial  Pro- 
ceedings, p.  592. 

GAME  AND  GAME  LAWS. 

CROSS  REFERENCES. 

See  the  title  Game  and  Game  Laws,  vol.  0,  p.  543,  and  references  there  given. 

Power  to  Forbid  Possession  of  Game  during  Closed  Season. — A  state 
may  by  statute  make  it  an  otteuse  for  a  person  to  have  game  in  his  possession 
during  the  closed  season,-''  it  being  within  the  proper  exercise  of  the  police  power 
of  the  state. -"^ 

Validity  under  Fourteenth  Amendment. — Such  statutes  do  not  violate  the 
fourteenth  amendment  to  the  United  States  constitution.-" 

Validity  in  Regard  to  Interstate  or  Foreign  Commerce. — Such  laws  are 
not  unconstitutional  as  regulating  interstate-^  or  foreign  commerce.-'' 


543-2a.  Power  to  forbid  possession  of 
game  during  closed  season. — Silz  v.  Hes- 
terberg,  211  U.  S.  31,  53  L.  Ed.  75,  29  S. 
Ct.    10. 

543-2b.  Exercise  of  police  power. — 
Silz  :-.  Hesterberg,  211  U.  S.  31,  53  L.  Ed. 
79,  29  S.  Ct.  10.  See  post,  POLICE 
POWER. 

"But  it  is  contended  that  while  the 
protection  of  the  game  supply  is  within 
the  well-settled  boundaries  of  the  police 
power  of  a  state,  that  the  law  in  question 
is  an  unreasonable  and  arbitrary  exercise 
of  that  power.  That  the  legislature  of  the 
state  is  not  ihe  final  judge  of  the  limi- 
tations of  the  police  power,  and  that  such 
enactments  are  subject  to  the  scrutiny  of 
the  courts  and  will  be  set  aside  when 
found  to  be  unwarranted  and  arbitrary 
interferences  with  rights  protected  by 
the  constitution  in  carrying  on  a  lawful 
business  or  making  contracts  for  the  use 
and  enjoyment  of  property,  is  well  settled 
by  former  decisions  of  this  court.  Lawton 
V.  Steele,  152  U.  S.  133,  137,  38  L.  Ed. 
385;  Holden  v.  Hardy,  169  U.  S.  366,  42 
L.  Ed.  780;  Dobbins  v.  Los  Angeles,  195 
U.  S.  223,  236,  49  L.  Ed.  1G9."  Silz  v.  Hes- 
terberg, 211  U.  S.  31,  39,  53  L.  Ed.  75,  29 
S.  Ct.   10. 

"As  to  the  first  contention,  that  the 
laws  in  question  are  void  within  the 
meaning  of  the  fourteenth  amendment  be- 
cause they  do  not  constitute  due  process 
of  law.  The  acts  in  question  were  passed 
in  the  exercise  of  the  police  power  of 
the  state  with  a  clear  view  to  protect  the 
game  supply  for  the  use  of  the  inhabitants 
of  the  state.   It  is  not  disputed   that  this 


is  a  well-recognized  and  often-exerted 
power  of  the  state  and  necessary  to  the 
protection  of  the  supply  of  game  which 
would  otherwise  be  rapidly  depleted,  and 
which,  in  spite  of  laws  passed  for  its 
protection,  is  rapidly  disappearing  from 
many  portions  of  the  country."  Silz  -v, 
Hesterberg,  211  U.  S.  31,  39,  53  L.  Ed.  75, 
29    S.   Ct.    10. 

543-2c.  Validity  under  fourteenth 
amendment. — The  prohibition  against 
the  possession  of  game  out  of  season, 
which  is  made  by  N.  Y.  Laws  1900,  chap. 
20,  is  a  proper  exercise  of  the  police 
power,  and  does  not  deny  the  due  proc- 
ess of  law  guaranteed  by  U.  S.  Const., 
14th  Amend.,  altliough  such  game  may 
have  been  taken  in  foreign  countries  dur- 
ing the  open  season  there.  Silz  v.  Hester- 
berg, 211  U.  S.  31,  53  L.  Ed.  75,  29  S. 
Ct.   10. 

"In  this  aspect  in  which  the  game  law 
of  New  York  is  now  before  this  court  we 
think  it  was  a  valid  exertion  of  the  pplice 
power,  independent  of  any  authoriza- 
tion thereof  by  the  Lacey  Act,  and  we 
shall  therefore  not  stop  to  examine  the 
provisions  of  that  act.  For  the  reasons 
stated,  we  think  the  legislature,  in  the 
particulars  in  which  the  statute  is  here 
complained  of,  did  not  exceed  the  police 
power  of  the  state  nor  run  counter  to 
the  protection  afforded  the  citizens  of 
the  state  by  the  constitution  of  the  United 
States."  Silz  r.  Hesterberg,  211  U.  S.  31, 
44,  53  L.   Ed.   75,  29   S.  Ct.   10. 

543-2d.  Validity  in  regard  to  interstate 
commerce. — Silz  i\  Hesterberg,  211  U.  S. 
31,  53   L.   Ed.  75,  29  S.   Ct.   10.   See  post, 


60i; 


543 


GAME  AND  GAME  LAWS. 


Vol.  VI. 


Game  Lawfully  Taken  in  Foreign  Country. — A  state  may  prohibit  the  pos- 
session of  game  during  the  closed  season,  although  it  was  lawfully  taken  in  a 
foreign  country,  during  the  open  season  at  the  place  where  it  was  taken. ^^ 


INTERSTATE  AND  FOREIGN  COM- 
MERCE. 

It  is  provided  in  the  New  York  stat- 
utes that  game  shall  be  taken  only  during 
certain  seasons  of  the  year;  and  to  make 
this  provision  effectual  it  is  further  pro- 
vided that  the  prohibited  game  shall  not 
be  possessed  within  the  state  during  such 
times.  Incidentally,  these  provisions  may 
affect  the  right  of  one  importing  game  to 
hold  and  dispose  of  it  in  the  closed  sea- 
son, but  the  effect  is  only  incidental.  The 
purpose  of  the  law  is  not  to  regulate  in- 
terstate commerce,  but,  by  laws  alike  ap- 
plicable to  foreign  and  domestic  game,  to 
protect  the  people  of  the  state  in  the  right 
to  use  and  enjoy  the  game  of  the  state. 
Silz  z:  Hesterberg,  211  U.  S.  31,  53  L.  Ed. 
75,  29   S.   Ct.  10. 

Aside  from  the  authority  of  the  state, 
derived  from  the  common  ownership  of 
game  and  the  trust  for  the  benefit  of  its 
people  which  the  state  exercises  in  re- 
lation thereto,  there  is  another  view  of 
the  power  of  the  state  in  regard  to  the 
property  in  game,  which  is  equally  con- 
clusive. The  right  to  preserve  game  flows 
from  the  undoubted  existence  in  the  state 
of  a  police  power  to  that  end,  which  may 
be  none  the  less  efficiently  called  into 
play  because  by  doing  so  interstate  com- 
merce may  be  remotely  and  indirectly 
affected.  Silz  v.  Hesterberg,  211  U.  S.  31, 
53  L.  Ed.  75,  29  S.  Ct.  10;  Kidd  v.  Pear- 
son, 128  U.  S.  1,  32  L.  Ed.  346,  9  S.  Ct.  6; 
Hall  T'.  DeCuir,  95  U.  S.  485,  24  L.  Ed. 
547;  Sherlock  7:  Ailing,  93  U.  S.  99.  103, 
23  L.  Ed.  819;  Gibbons  v.  Ogden,  9  Wheat. 
1,  6  L.   Ed.  23. 

It  is  true  that  in  the  case  of  Schollen- 
berger  v.  Pennsylvania,  171  U.  S.  1,  43  L. 
Ed.  49,  18  S.  Ct.  757,  it  was  held  that  a 
state  law  directly  prohibiting  the  intro- 
duction in  interstate  commerce  of  a 
healthful  commodity  for  the  purpose  of 
thereby  preventing  the  traffic  in  adulter- 
ated and  injurious  articles  within  the 
state  was  not  a  legitimate  exercise  of  the 
police  power.  But.  in  that  case,  there  was 
a  direct,  and,  it  was  held,  unlawful,  inter- 
ference with  interstate  commerce  as 
such.  In  the  case  at  bar  the  interference 
with  foreign  commerce  is  only  incidental, 
and  not  the  direct  purpose  of  the  enact- 
ment for  the  protection  of  the  food  sup- 
ply and  the  domestic  game  of  the  state. 
Silz  I'.  Hesterberg,  211  U.  S.  31,  53  L.  Ed. 
75,   29   S.   Ct.   10. 

543-2e.  Foreign  commerce. — Silz  v. 
Hesterberg,  211  U.  S.  31,  53  L.  Ed.  75,  29 
S.  Ct.  10. 

Foreign    commerce    is    not    unconstitu- 


tionally regulated  by  the  provisions  of 
Laws  N.  Y.  1900,  p.  22,  c.  20,  under  which 
the  possession  of  game  within  the  state 
during  the  closed  season,  except  upon 
giving  the  bond  provided  by  the  statute 
against  the  sale,  is  forbidden,  although  the 
game  may  have  been  lawfully  taken  in 
foreign  countries  during  the  open  season 
there.  Judgment  (1906),  76  N.  E.  1032, 
184  N.  Y.  126,  3  L.  R.  A.  (N.  S.)  163,  af- 
firmed. Silz  V.  Hesterberg,  211  U.  S.  31. 
53  L.   Ed.  75.  29  S.  Ct.  10. 

543-2f.  Game  lawfully  taken  in  foreign 
country. — Silz  z\  Hesterberg,  211  U.  S. 
31,  53  L.   Ed.  75,  29  S.  Ct.  10. 

"It  has  been  provided  that  the  pos- 
session of  certain  kinds  of  game  during 
the  closed  season  shall  be  prohibited,  ow- 
ing to  the  possibility  that  dealers  in  game 
may  sell  birds  of  the  domestic  kind  under 
the  claim  that  they  were  taken  in  another 
state  or  country.  The  object  of  such  laws 
is  not  to  affect  the  legality  of  the  taking 
of  game  in  other  states,  but  to  protect 
the  local  game  in  the  interest  of  the  food 
supply  of  the  people  of  the  state.  We  can 
not  say  that  such  purpose,  frequently  rec- 
ognized and  acted  upon,  is  an  abuse  of 
the  police  power  of  the  state,  and  as  such 
to  be  declared  void  because  contrary  to 
the  fourteenth  amendment  of  the  con- 
stitution." Silz  V.  Hesterberg,  211  U.  S. 
31.  40,  53  L.  Ed.  75,  29  S.  Ct.  10. 

"It  is  contended,  in  this  connection, 
that  the  protection  of  the  game  of  the 
state  does  not  require  that  a  penalty  be 
imposed  for  the  possession  out  of  season 
of  imported  game  of  the  kind  held  by  the 
relator.  It  is  insisted  that  a  method  of 
inspection  can  be  established  which  will 
distinguish  the  imported  game  from  that 
of  the  domestic  variety,  and  prevent  con- 
fusion in  its  handling  and  selling.  That 
such  game  can  be  distinguished  from  do- 
mestic game  has  been  disclosed  in  the 
record  in  this  case,  and  it  may  be  that 
such  inspection  laws  would  be  all  that 
would  be  required  for  the  protection  of 
domestic  game.  But,  subject  to  constitu- 
tional limitations,  the  legislature  of  the 
state  is  authorized  to  pass  measures  for 
the  protection  of  the  people  of  the  state 
in  the  exercise  of  the  police  power,  and 
is  itself  the  judge  of  the  necessity  or  ex- 
pediency of  the  means  adopted.  In  order 
to  protect  local  game  during  the  closed 
season  it  has  been  found  expedient  to 
make  possession  of  all  such  game  during 
that  time,  whether  taken  within  or  with- 
out the  state,  a  misdemeanor."  Silz  v. 
Hesterberg,  211  U.  S.  31,  39,  53  L.  Ed.  75, 
29    S.    Ct.    10. 


606 


\'ol.  VI.  GENERAL  APPEARANCE.  546-548 


GAMING. — See  the  title  Gaming,  vol.  6,  p.  544,  and  references  there  given. 
GARNISHMENT. — See  ante,  Attachment  and  Garnishment,  p.  156. 

GAS. 

I.  Natural  Gas,  607. 

B.  Nature,  607. 

2.  Analogy  between  Animals  Ferae  Naturse  and  Natural  Gas,  607. 

C.  Ownership,  607. 

D.  Legislation  to  Prevent  Waste  of  Natural  Gas — Fourteenth  Amendment, 

607. 

II.  Gas  Companies,  607. 

D.  Power  to  Fix  Price  at  \\'hich  Companies  to  Sell  Gas.  607. 

CROSS  REFERENCES. 

See  the  title  Gas,  vol.  6,  p.  545,  and  references  there  given. 

In  addition,  as  to  natural  gas  being  of  both  intrastate  and  interstate  commerce, 
see  post,  Interstate  and  Foreign  Commerce.  As  to  distinction  between  the 
police  power  of  the  state  to  regulate  the  taking  of  natural  gas  and  to  prohibit  it 
from  transportation  in  interstate  commerce,  see  post.  Police  Power. 

I.  Natural  Gas. 

B.  Nature — 2.  Analogy  between  Animals  Fer.E  Naturae  and  Natural 
GAS.^See  note  4. 

C.  Ownership. — Surface  Proprietors. — See  note  5. 

State  Ownership. — A  state  does  not  have  the  same  ownership  in  natural  gas 
after  it  has  been  reduced  to  possession  as  it  does  over  the  flowing  waters  of  its 
rivers. °^ 

D.  Legislation  to  Prevent  Waste  of  Natural  Gas — Fourteenth  Amend- 
ment.— See  note  6. 

II.  Gas  Companies. 

D.  Power  to  Fix  Price    at   Which  Companies   to    Sell  Gas. — As  to  the 

power  of  the  legislature  to  regulate  the  price  at  which  gas  is  to  be  sold  by  a  gas 
company,  see  post,  Police  Power. 

GAS  CHECK. — "Gas  check"  or  "obturator"  is  a  device  applied  to  breech- 
loading  cannon  to  prevent  the  escape  of  gas.^ 

GENERAL  AGENT.— See  post,  Principal  and  Agent. 

GENERAL  APPEARANCE.— See  ante.  Appeal  and  Error,  p.  34;  Appear- 
ances, p.  144. 

546-4.    Analogy    between    animals    ferae  546-5a.  State  ownership. — West  z\  Kan- 

naturae  and  natural  gas. — West  r.  Kansas.  sas,  etc.,  Gas    Co.,  221  U.  S.  229,  55  L.  Ed. 

etc..  Gas  Co..  221  U.  S.  229,  55  L.  Ed.  716,  716.   31    S.   Ct.   564. 

:n  S.  Ct.  564.     See  ante.  AXIMALS.  p.  27.  546-6.    Legislation  to    prevent  waste    of 

546-5.    Ownership — Surface    proprietors.  natural     gas — Fourteenth     amendment.— 

— Gas,   when   reduced   to   possession,   is   a  West  v.   Kansas,  etc..   Gas  Co.,  221   U.   S. 

commodity;    it    belongs    to    the    owner   of  229,   55   L.   Ed.   716.  31   S.   Ct.  564. 

the    land,    and,   when    reduced    to    posses-  548-a.  Gas  check. — United  States  v.  So- 

sion,    it    is    his    individual    property    sub-  ciete    Anonyme.    etc.,  Cail,    224  U.  S.    309, 

ject  to  sale  by  him.  West  v.  Kansas,  etc.,  310,  56  L.  Ed.  778,  32  S.  Ct.  479.     See  post, 

Gas  Co.,  221  U.  S.  229,  55  L.  Ed.  716,  31  S.  PATENTS. 
Ct.   564. 

607 


550-563  GOJ^ERNOR.  Vol.  VI. 


GENERAL  AVERAGE. 

I.   Definitions,  608. 

CROSS  REFERENCES. 
See  the  title  General  Average,  vol.  6,  p.  549,  and  references  there  given. 
As  to  right  to  contract  for  general  average  contribution  where  the  loss  results 
from  the  negligent  navigation  of  the  vessel,  see  post.  Ships  and  Shipping. 

I.  Definitions. 

Genera]  average  contribution  is  that  extraordinary  sacrifices  made  and  ex- 
penses incurred  for  the  common  benefit  and  safety  are  to  be  borne  proportion- 
ately by  all  who  are  interested.^* 

GENERAL  CUSTOM.— See  post,  Usages  and  Customs. 

GENERAL  DEPOSIT.— See  ante.  Banks  and  Banking,  p.  184. 

GIFT  ENTERPRISE.— "A  'gift-enterprise'  has  been  defined  to  be  'a  scheme 
for  the  division  or  distribution  of  certain  articles  of  property,  to  be  determined 
by  chance,  amongst  those  who  have  .taken  shares  in  the  scheme.'  "^* 

GIFTS. — See  the  title  Gifts,  vol.  6,  p.  564,  and  references  there  given. 

GOOD  FAITH. — See  ante.  Banks  and  Banking,  p.  184;  Fraudulent  and 
Voluntary  Convf.yances,  p.  600;  post,  Limitation  of  Actions  and  Adverse 
Possession  ;    Principal  and  Agent. 

GOOD  WILL. — See  the  title  Good  Will,  vol.  6,  p.  567,  and  references  there 
given. 

GOVERNMENT.— See  ante.  Constitutional  Law,  p.  264. 

GOVERNOR. — See  the  title  Governor,  vol.  6,  p.  569,  and  references  there 
given.  In  addition,  as  to  the  declaration  of  a  governor,  that  a  state  of  insurrec- 
tion exists  being  conclusive,  see  post,  ]\L\rtial  Law.  As  to  imprisonment  of  a 
person  by  a  governor  without  sufficient  reason,  but  in  good  faith  depriving  the 
person  imprisoned  of  his  liberty  without  due  process  of  law,  see  ante,  DuE  Proc- 
ess OF  Law,  p.  475.  As  to  a  suit  against  a  governor  not  being  within  the  origi- 
nal jurisdiction  of  a  federal  circuit  court,  see  ante.  Courts,  p.  398.  As  to  the 
duty  of  a  governor  in  extradition  proceedings,  see  ante.  Extradition,  p.  571. 

550-la.     Definition.— The    Tason,    225    U.  56  L.  Ed.  969,  32  S.  Ct.  560,  citing  McAn- 

S.  32.  57,  56  L.   Ed.  969,  32   S.  Ct.  560.  drews  t:  Thatcher.  3  Wall.  347,  365,  18  L. 

"There   was   a   common,   imminent  peril  Ed.   155;    Star  of   Hope,   9   Wall.   203,   228, 

involving   ship   and    cargo,   followed   by   a  19   L.    Ed.   638;    Ralli  v.   Troop,   157   U.   S. 

voluntary    and    extraordinary    sacrifice    of  386,  394,  39  L.  Ed.  742. 

property,    including   extraordinary    expen-  563-4a.  Gift  interprise. — Matter  of  Greg- 

ses,   necessarily   made   to   avert   the   peril,  cry,  219  U.  S.  210,  214.  55  L.  Ed.  184,  31  S. 

and    a    resulting    common    benefit    to    the  Ct.  143.     See  post,  LOTTERIES, 
adventure."   The    Tason,   225   U.    S.    32,   48, 

608 


Vol.  VI.  GRAND  JURY.  573-574 


GRAND  JURY. 

III.  Qualifications,  609. 

F.  Race,  Color,  etc.,  609. 

K.  Effect  of  Presence  of  Disqualified  Jurors  on  Panel,  609. 

L.  Objections  Because  of  Disqualifications  of  Jurors,  609. 

1.  How  :\Iade,  609. 

f.  Writ  of  Habeas  Corpus,  609. 

2.  Time  of  jMaking,  609. 

V.  Summoning  and  Impaneling,  609. 

A.  Proceedings  Are  Part  of  Prosecution,  609. 
C.  By  Whom  Summoned  and  Impaneled,  610. 

I.  Objection  to  Manner  of  Summoning  and  Impaneling,  610. 

Vn.  Powers  and  Duties,  610. 

B.  To  Examine  Witnesses,  610. 

CROSS  REFERENCES. 

See  the  title  Grand  Jury,  vol.  6,  p.  570,  and  references  there  given. 
In  addition,    see  ante,  Civil  Rights,  p.  236;    post,  Indictments,  Informa- 
tions, Presentments  and  Complaints. 

ni.    Qualifications. 

F.  Race,  Color,  etc. — See  ante,  Civil  Rights,  p.  236. 

K.  Effect  of  Presence  of  Disqualified  Jurors  on  Panel. — Presence  of  dis- 
qualified grand  jurors  on  the  panel  does  not  destroy  the  jurisdiction  of  the  court 
into  which  an  indictment  is  returned,  if  the  court  has  jurisdiction  of  the  cause 
and  person. 19^ 

L.  Objections  Because  of  Disqualifications  of  Jurors — 1.  How  Made — 
f.  Writ  of  Habeas  Corpus. — Disqualification  of  grand  jurors  does  not  destroy 
the  jurisdiction  of  the  court  in  which  an  indictment  is  returned  and  can  not  be 
raised  by  writ  of  habeas  corpus. -'''' 

2.   Time  of  Making. — See  note  30. 

V.    Summoning  and  Impaneling. 

A.  Proceedings  Are  Part  of  Prosecution. — The  making  of  an  order  for  the 
drawing  and  attendance  of  a  grand  jury  is  the  exercise  of  a  judicial  power,  which 

573-19a.   Effect  of  presence  of  disquali-  and  residents  of  the  county,  under  the  age 

fied    jurors. — Kaizo    v.    Henry,    211    U.    S.  of  6.5  years,  and  that,  if  any  person  not  so 

146,  53  L.  Ed.  125,  29  S.  Ct.  41,  citing  Ex  qualified    is    summoned,    it    shall    be    good 

parte    Harding,    120   U.    S.   782,   30   L.    Ed.  cause   of   challenge,   provided   that  no   ex- 

824,  7   S.   Ct.  780;   In  re   Wood,   140  U.   S.  ceptions  to  any  such  juror  on  account  of 

278,  35  L.  Ed.  505;  In  re  Wilson.  140  U.  S.  his    citizenship    or    age    shall    be    allowed 

575,  35  L.   Ed.   513;   Matter  of  Moran,  203  after   he   has   been   sworn.    Held,   that   the 

U.   S.  96,  104.  51   L.   Ed.   105.  object   of   these    statutory   provisions   was 

574-29a.     Objection    for    disqualification  to  secure  an  effective  body  of  citizens  to 

— How    raised. — Kaizo    v.    Henry,    211    U.  administer  the  laws,  and  not   specially  or 

S.  146.  53  L.  Ed.  125.  29  S.  Ct.  41;  Harlan  primarily  for  the  benefit  of  those  charged 

V.    McGourin,    218    U.    S.    442,    54    L.    Ed.  with    its    violation.    Judgment    (Sup.),    66 

1101,  31  S.  Ct.  44.  A.    942,    affirmed.        (Err.    &    App.    1907). 

574-30.      After     Swearing.— Act     March  State   v.    Lang.    68    A.    210,   judgment    af- 

27,   1874   (Rev.    St.   1874.  p.   372).   §  6,  pre-  firmed.    Lang   v.    New    Jersey,    209    U.    S. 

scribes    as    qualifications   for    grand   jurors  467,  5,2   L.   Ed.  894,  28  S.  Ct.  594. 
that    they    shall    be    citizens    of    the    state 

12  U  S  Enc— 39  609 


575-577 


GRAND  JURY 


Vol.  VI. 


pertains  to  both  judge  and  court,  and  the  order  does  not  conclude  public  or  pri- 
vate rights  in  any  way,  being  nothing  more  than  a  mere  administrative  regulation 
of  internal  affairs  relating  to  the  organization  of  the  court.^^^ 

C.  By  Whom  Summoned  and  Impaneled. — A  judge  ordering  a  grand  jury 
need  not  be  present  when  the  order  is  executed.  A  grand  jury  drawn  by  th-e 
proper  authority  and  composed  of  qualified  persons  is  authorized  to  sit,  unless 
the  court  of  which  it  forms  a  part  is  holding  a  session  .at  an  unauthorized  time 
or  place. "^^ 

I.  Objection  to  Manner  of  Summoning  and  Impaneling. — See  notes  45,  48. 

The  objections  can  not  be  raised  on  habeas  corpus.-^ -''•■'     See  note  49. 

VII.  Powers  and  Duties. 

B.  To  Examine  Witnesses. — See  note  56.     A  state  statute  which  provides 


575-35a.  Proceeding  a  part  of  prose- 
cution.— Ex  parte  Harlan  (C.  C),  180 
Fed.  119,  decrees  affirmed.  Harlan  v. 
McGourin,  218  U.  S.  442,  54  L.  Ed.  1101, 
31    S.    Ct.    44. 

575-38a.  By  whom  summoned,  etc. — 
Ex  parte  Harlan,  180  Fed.  119,  decrees 
affirmed.  Harlan  v.  McGourin,  218  U.  S. 
442,   54    L.    Ed.    1101,    31    S.    Ct.    44. 

576-45.  Four  years  after  indictment. — 
Pleas  in  abatement  in  a  criminal  prosecu- 
tion, filed  about  four  years  after  indict- 
ment found,  showing  that  the  clerk  of 
the  jury  commission,  the  body  charged 
with  the  duty  of  selecting  persons  for 
jury  service,  unlawfully  abstracted  some 
of  the  names  from  the  box  containing 
names  of  prospective  jurors,  so  that  the 
names  of  some  persons  who  might  other- 
wise have  been  on  the  jury  which  re- 
turned the  indictment  were  not  drawn  for 
service,  show  a  serious  irregularity  in  the 
organization  of  the  grand  jury,  but  do  not 
show  that  it  was  an  illegal  body.  Hyde  v. 
United  States,  35  App.  D.  C.  451,  writ  of 
certiorari  granted.  Hyde  v.  United  States, 
218  U.  S.  681,  54  L.  Ed.  1207,  31  S.  Ct. 
228. 

576-48.  Pleas  in  abatement  on  account 
of  irregularities  in  selecting  and  impanel- 
ing a  grand  jury  which  do  not  relate  to 
the  competency  of  individual  jurors  must 
be  pleaded  with  strict  exactness.  Hyde 
V.  United  States,  225  U.  S.  347,  56  L.  Ed. 
1114,   32   S.    Ct.   793. 

576-48a.  Raising  objection. — "It  is 
contended  that  competent  testimony 
was  adduced  to  show  that  the  indict- 
ments were  not  properly  presented  by  the 
grand  jury,  in  that  the  one  under  which 
the  accused  was  tried  was  not  regularly 
found  by  the  grand  jury  not  voted  upon 
by  them.  Testimony  was  introduced  to 
the  effect  that  after  the  presentation  of 
the  original  indictment  the  grand  jury 
were  informed  by  the  district  attorney 
that  the  indictment  needed  amendment 
in  some  particular,  this  amendment  was 
read  over  in  the  presence  of  the  grand 
jury,  was  incorporated  into  an  indict- 
ment,   the    indictment    was    regularly    re- 


turned into  court,  where  it  was  produced 
with  the  consent  of  all  the  grand  jurors. 
No  objection  was  taken  at  the  trial  to  the 
indictment  for  this  reason,  and  upon 
proper  pleas  a  trial  and  conviction  were 
had;  certainly  an  objection  of  that  kind, 
if  ever  available,  can  not  be  made  for  the 
first  time  in  a  habeas  corpus  proceed- 
ing." Harlan  v.  McGourin,  218  U.  S.  443, 
451,    54    L.    Ed.    1101,   31    S.    Ct.    44. 

576-49.  Waiver  of  objection. — Irregu- 
larity in  organization  of  grand  jury  not 
affecting  their  authority  to  sit  is  waived 
by  accused  going  to  trial  without  raising 
it.  (C.  C.  1909)  Ex  parte  Harlan,  180  F. 
119,  decrees  affirmed.  Harlan  v.  McGourin, 
218  U.  S.  442,  54  L.  Ed.  1101,  31   S.   Ct.  44. 

"The  indictment  recites  that  the  grand 
jury  was  selected,  impaneled,  sworn  and 
charged,  and  that  they  on  their  oaths 
present,  etc.  At  this  stage  of  the  pro- 
ceedings this  is  enough  to  show  the 
proper  swearing  of  the  grand  jury.  In 
Grain  v.  United  States,  162  U.  S.  625,  40 
L.  Ed.  1097,  cited  by  counsel  for  defend- 
ant, the  record  was  destitute  of  any 
showing  that  the  accused  was  arraigned 
or  pleaded  to  the  indictment.  See  Pointer 
V.  United  States,  151  U.  S.  396,  418,  38  L. 
Ed.  208."  Powers  v.  United  States,  223  U. 
S.  303,  312,  56  L.  Ed.  448,  32  S.  Ct. 
281. 

An  objection  that  there  was  no  venire 
facias  summoning  the  grand  jury  where 
there  is  nothing  in  the  record  to  show 
that  this  objection,  if  tenable  at  all,  was 
taken  before  plea  or,  indeed,  at  any  time 
during  the  trial,  is  waived.  The  same  ob- 
servation applies  to  the  second  assign- 
ment of  error,  that  the  grand  jury  is  not 
shown  by  the  record  to  have  been  sworn. 
Objections  of  this  character  are  waived 
unless  seasonably  taken.  Powers  v. 
United  States,  223  U.  S.  303,  312,  56  L. 
Ed.    448,    32    S.    Ct.    281. 

577-56.  Attendance  and  examination  of 
witnesses. — The  grand  jury  may  summon 
and  examine  witnesses,  although  there  is 
no  cause  or  specific  charge  pending  be- 
fore it.  Wilson  V.  United  States,  22]  U. 
S.   361,  55  L.  Ed.  771,  31   S.  Ct.  538. 


610 


Vol.  VI.  GUARDIAN  AND  WARD.  578-596 

that  a  corporation  doing  business  in  the  state  may  be  compelled  to  produce  be- 
fore a  grand  jury  material  evidence  in  the  shape  of  books  or  papers  kept  by  the 
corporation  in  the  state  and  which  are  in  its  custody  and  control  although  out- 
side of  the  boundaries  of  the  state,  is  valid.^"^^  A  defendant  can  not  urge  as  a 
federal  question  the  validity  of  the  notice  that  produces  books  and  papers  for 
grand  jury,  because  cf  the  notice  being  broader  than  the  provisions  of  a  state 
statute  relating  thereto.^'^" 

GRANT.— See  note  1. 

GRANTEE. — See  post,  Pate;nts;    Public  Lands;   Vendor  and  Purchase:r. 

GRANTS. — See  post,  Landlord  and  Tenant  ;  Limitation  op  Actions  and. 
Adverse  Possession  ;    Public  Lands. 

GRANTS  FOR  PARKS.— See  post,  Public  Lands. 

GRANTS  IN  PRESENT!.— See  post.  Public  Lands. 

GROSS  NEGLIGENCE.— See  post.  Negligence. 

GROUND  RENTS.— See  the  title  Ground  Rents,  vol.  6,  p.  579,  and  refer- 
ences there  given. 


GUARANTY. 

VIII.  Discharge  of  the  Guarantor,  611. 
G.  Taking  Additional  Security,  611. 

CROSS  REFERENCES. 

See  the  title  Guaranty,  vol.  6,  p.  580,  and  references  there  given. 

VIII.  Discharge  of  the  Guarantor. 

G.  Taking  Additional  Security.— The  taking  of  additional  security  does  not 
discharge  the  guarantor. s^"" 

GUARANTY  INSURANCE.— See  ante.  Fidelity  and  Guaranty  Insurance 
p.  582. 

GUARDIAN  AD  LITEM.— See  post.  Infants. 

GUARDIAN  AND  WARD.— See  the  title  Guardian  and  Ward,  vol.  6,  p. 
599,  and  references  there  given. 

578-57a.   Consolidated,  etc.,   Co.  v.   Ver-  578-1.      Granted     lands. — The    granting 

mont,  207  U.   S.   541,   52   L.   Ed.  327.  28  S.  words,    "is    granted    the     possession    and 

Ct.   178.  ownership,"    in  a    grant    of   title  lands    by 

578-57b.  A   corporation  which,  with  un-  the    Spanish^  authorities   in   contemplation 

important     exceptions,     refuses     to     pro-  of    reclamation,    are    plain    and    import    a 

duce    certain    books   and   papers   before   a  present    and    immediate     transfer    of    the 

grand   jury,    in    compliance   with    Act   Vt.  ownership  of  all  the  land.     Costas  v.  Insu- 

Oct.   9,  1906,   p.   79,   No.   75,   can   not  urge  lar  Government,  221  U.   S.  623,  634,  55  L. 

the    sweeping  character   of   the   notice   to  Ed.  884,  31  S.  Ct.  664.     See  post,  PUBLIC 

produce  to  invalidate  the  order  adjudging  LANDS. 

the     corporation     guilty    of    a    contempt.  596-89a.   Taking    of  additional   security. 

Judgment,   In   re   Consolidated   Rendering  — The   taking  of  additional   security  does 

Co.    (Vt.   1907),  66  A.   790,   affirmed.   Con-  not   discharge   a   guarantor   upon   a   mort- 

solidated,  etc.,  Co.  v.  Vermont,  207  U.  S.  gage  executed  by  her  to  secure  the  debt. 

541,  52  L.  Ed.  327,  28  S.  Ct.  178.     See  post,  Cabrera  v.   American   Colonial   Bank,  214 

PRODUCTION    OF    DOCUMENTS.  U.  S.  224,  53  L.  Ed.  974,  29  S.  Ct.  623. 

611 


HABEAS  CORPUS.  Vol    VI. 


HABEAS  CORPUS. 

I.  Definition,  Nature  and  Object,  613. 

A.  Definition,  613. 

B.  Nature,  613. 

IV.  Jurisdiction,  613. 

C.  Of  United  States  Courts,  613.   . 

3.  Extent  of,  613. 

b.  Where  Prisoner  Is  in  Jail,  613. 

(3)  For  Act  Done  or  Omitted  in  Pursuance  of  Law,  etc.,  613. 
f.  In  Other  Cases,  613. 

V.  Grounds  for  Relief,  613. 

A.  In  General,  613. 

D.  As  Determined  by  Conduct  of  Prosecution,  613. 

5.  Change  of  Venue,  613. 

E.  As  Determined  by  Validity  of  Proceedings,  613. 

F.  As  Determined  by  Existence  of  Other  Remedies,  613. 
J.  As  Determined  by  Nature  of  Authority,  614. 

1.  Without  Jurisdiction,  614. 

5.  Indictment  of  Grand  Jury,  614. 

a.  In  General,  614. 

e.  Constitution  of  Grand  Jury,  614. 

i.  Amendment  of  Indictment,  615. 

6.  Judgment  or  Order  of  Court,  615. 

a.  In  General,  615. 

c.  Erroneous  Judgment  or  Order,  615. 

(1)  In  General,  615. 

7.  Authority  of  Particular  Persons  and  Courts,  615. 

a.  Executive  and  Legislative  Branches  of  Government,  615. 
K.  As  Determined  by  Nature  of  Proceedings,  615. 

3.  In  Extradition  Cases,  615. 
L.  As  Determined  by  Character  of  Person  in  Custody,  615. 
1.  Aliens,  615. 

b.  Alien  Immigrants,  615. 

(2)  Under  Chinese  Exclusion  Acts,  615. 
O.  As  Determined  by  Defenses  to  Prosecution,  615. 

VI.  Application  for  Writ,  615. 

F.  Annexing  Copy  of  Process,  etc.,  615. 

IX.  Hearing  and  Determination,  616. 

D.  Extent  of  Inquiry,  616. 
1.  In  General,  616. 
3.  Guilt  or  Innocence,  616. 

8.  Custody  under  Judgments  or  Orders  of  Court,  616. 

b.  Jurisdiction,  616. 

c.  Mere  Errors,  616. 

9.  Commutation  of  Sentence,  616. 
F.  Decision  on  Hearing,  616. 

3^.  Reforming  Sentence,  616. 

612 


Vol.  VI.  HABEAS  CORPUS.  615-641 

CROSS  REFERENCES. 

See  the  title  Habeas  Corpus,  vol.  6,  p.  610,  and  references  there  given. 

In  addition,  see  ante,  Extradition,  p.  571 ;  post,  Removal  of  Causes.  As 
to  transfer  of  accused  from  one  district  to  another,  see  ante,  Criminal  Law, 
p.  434. 

I.  Definition,  Nature  and  Object. 

A.  Definition. — See  note  1. 

B.  Nature. — Habeas  corpus  is  an  extraordinary  remedy. ^^^ 

rV.  Jurisdiction. 

C.  Of  United  States  Courts — 3.  Extent  of — b.  Where  Prisoner  Is  in  Jail — 
(3)  For  Act  Done  or  Omitted  in  Pursuance  of  Law,  etc. — See  note  45. 

f.  In  Other  Cases. — The  supreme  court  has  no  power  to  release  a  prisoner 
held  by  a  state  court  merely  because  of  a  want  of  evidence  of  probable  cause.^^*" 

V.  Grounds  for  Relief. 
A.  In  General. — No  court  may  properly  release  a  prisoner  under  conviction 
and  sentence  of  another  court,  unless  for  want  of  jurisdiction  of  the  cause  or 
person,  or  for  some  other  matter  rendering  its  proceedings  void.^"^ 

D.  As  Determined  by  Conduct  of  Prosecution — 5.  Change:  of  Venue. — 
The  error,  if  any,  in  prosecuting  proceedings  for  the  removal  to  another  federal 
district  for  trial  of  a  person  there  charged  with  an  offense  against  the  United 
States,  while  similar  proceedings  in  a  federal  circuit  court  for  another  district 
are  pending,  can  not  be  corrected  on  a  writ  of  habeas  corpus.'**^'' 

E.  As  Determined  by  Validity  of  Proceedings. — See  note  46.  Where  col- 
lateral attacks  have  been  sustained  through  the  medium  of  a  writ  of  habeas  cor- 
pus, the  grounds  were  such  as  attacked  the  validity  of  the  judgments,  and  the 
objections  sustained  were  such  as  rendered  the  judgment  not  merely  erroneous, 
but  void.^^^ 

F.  As  Determined  by  Existence  of  Other  Remedies. — See  notes  49,  50. 

615-1.     Object. — Habeas    corpus    is    the  Ex  parte  Wood,  155  F.  190,  judgment  af- 

usual  remedy   for  unlawful  imprisonment.  firmed  Hunter  v.  Wood,  209  U.  S.  205,  52 

Chin   Yow  z:   United   States,   208   U.   S.   8,  L.   Ed.  747,  28   S.  Ct.  472. 

13.  52  L.   Ed.  369,  28  S.  Ct.  201.  625-66a.     Bailey   v.    Alabama,   211    U.    S. 

617-19a.    Nature.— Ex  parte   Simon,   208  452,  53  L.   Ed.  278,  29  S.  Ct.  141. 

U.    S.    144,    148,    52    L.    Ed.    429,    28    S.    Ct  638-37a.    Kaizo  v.   Henry,  211  U.   S.  146, 

238.  148,    53    L.    Ed.    125.    29    S.    Ct.    41. 

621-45.    Order  of  court. — Where  a   fed-  639-45a.       Change      of      venue. — Order 

eral    court    granted    a   preliminary   injunc-  (C.   C),   166   Fed.   627,   affirmed.    Peckham 

tion  restraining  the  officers  of  a  state  from  v.  Henkel,  216  U.  S.  483,  54  L.  Ed.  579,  30 

enforcing   a    state    statute    fixing   rates    to  S.   Ct.  255. 

be   charged  by   railroads  for  the   carriage  639-46.     Validity    of   proceedings. — Mat- 

of    passengers    within    the    state    pending  ter   of   Gregory,   219   U.   S.   210,   55   L.    Ed. 

suits  by  the  railroad  companies  to   deter-  184,  31   S.   Ct.   143. 

mine  the  constitutionality  of  such  statute,  640-48a.    Harlan  v.  McGourin,  218  U.  S. 

and  by  its  order  required  such  companies  442,  447,  54   L.   Ed.   1101,  31   S.   Ct.  44. 

to  issue  coupons  to  purchasers  of  tickets  640-49.    Existence   of   other  remedies. — 

calling    for    the     difference    between    the  Harlan  v.   McGourin,  218  U.  S.   442,  54  L. 

rates    charged    and    the    statutory   rate,    to  Ed.  1101,  31  S.  Ct.  44,  was  an  appeal  from 

be    repaid    in    case    the    statute    was    sus-  a  judgment   discharging  a  writ  of  habeas 

tained.  the  selling  of  tickets  in  conformity  corpus     petitioned     for     after    conviction, 

to   such  order  was  "an  act   done     *     *     *  and  it  was  held  that  the  writ  could  not  be 

in       pursuance       of     *     *     *     an      order  used    for    the    purpose    of   proceedings    in 

*     *     *     of  a  court"  of  the  United  States,  error  but  was  confined  to  a  determination 

within    the    meaning    of    Rev.    St.,    §    753  whether  the  restraint  of  liberty  was  with- 

(U.  S.  Comp.  St.  1901,  p.  592),  and,  where  out   authority   of  law.   Glasgow  v.   Moyer, 

an    agent    is    adjudged    guilty   of    a    crime  225   U.    S.   420,   428,   56   L.    Ed.    1147,   32   S. 

and  imprisoned  for  such  act  by  the   state  Ct.   753. 

authorities,    the    federal    court    is    author-  641-50.    Existence  of  remedy  by  appeal 

ized  by  such  section  to  discharge  him  on  or  writ  of  error. — A  writ  of  habeas   cor- 

a    writ    of    habeas    corpus.    (C.    C.    1907),  pus   can   not   be   made   the   basis  of  a   re- 

613 


641-647 


HABEAS  CORPUS. 


Vol.  VI. 


The  usual  rule  is  that  a  prisoner  can  not  anticipate  the  regular  course  of  pro- 
ceedings having  for  their  end  to  determine  whether  he  shall  be  held  or  released, 
by  alleging  want  of  jurisdiction  and  petitioning  for  a  habeas  corpus. ^^^ 

J.  As  Determined  by  Nature  of  Authority — 1.  Without  Jurisdiction. — 
See  note  77.  That  the  lower  court  sentenced  a  defendant  to  hard  labor,  and  its 
sentence  is,  on  that  account,  in  excess  of  jurisdiction,  is  not  available  as  an  ob- 
jection on  habeas  corpus,  as  only  that  part  of  the  sentence  in  excess  of  law  is 
void.'^^a 

5.  Indictme:nt  of  Grand  Jury — a.  In  General. — See  post.  Removal  of 
Causes. 

e.    Constitution  of  Grand  Jury. — See  note  96. 


view  of  a  judgment  of  a  court  of  compe- 
tent jurisdiction  where  proceedings  were 
had  under  a  constitutional  statute  giving 
the  court  authority  to  examine  into  the 
charges  and  to  convict  or  acquit  the  ac- 
cused, when  the  proceedings  show  no  at- 
tempt to  exert  the  jurisdiction  of  the 
court  in  excess  of  its  authority.  (1910), 
Harlan  v.  McGourin,  218  U.  S.  442,  54  L. 
Ed.  1101,  31  S.  Ct.  44,  affirming  decrees 
Ex  parte  Harlan  (C.  C.  1909),  180  F. 
119. 

Neither  Hyde  v.  Shine,  199  U.  S.  62,  84, 
50  L.  Ed.  90,  nor  Tinsley  v.  Treat,  205 
U.  S.  20,  51  L.  Ed.  689,  is  authority  for 
the  proposition  that  a  writ  of  habeas  cor- 
pus can  be  made  the  basis  of  a  review 
of  the  judgment  of  a  court  of  competent 
jurisdiction  where  proceedings  were  had 
under  a  constitutional  statute  giving  the 
court  authority  to  examine  into  the 
charges  and  to  convict  or  acquit  the  ac- 
cused, when  the  proceedings  show  no  at- 
tempt to  exert  the  jurisdiction  of  the 
court  in  excess  of  its  authority.  Harlan 
V.  McGourin,  218  U.  S.  442,  447,  54  L.  Ed. 
1101,  31  S.  Ct.  44.  See  ante,  APPEAL 
AND   ERROR,  p.  34. 

641-51a.  Habeas  corpus,  being  an  ex- 
traordinary remedy,  will  not  issue  on  be- 
half of  a  person  imprisoned  in 'default  of 
payment  of  a  small  fine  for  disobeying 
a  preliminary  injunction  granted  by  a 
federal  circuit  court,  restraining  the  en- 
forcement of  a  judgment  of  a  state  court, 
to  inquire  into  the  jurisdiction  to  grant 
the  injunction,  where  the  bill  alleges  facts 
which  show  a  total  want  of  jurisdiction 
in  the  state  court,  and  implies,  at  least, 
that  a  fictitious  service  was  made  with 
deliberate  fraud,  and  the  writ  is  confess- 
edly sought  in  order  to  obtain  a  sum- 
mary disposition  of  the  cause  instead  of 
awaiting  the  result  of  a  trial  in  the  regu- 
lar way.  Ex  parte  Simon,  208  U.  S.  144, 
52   L.    Ed.   429,  28    S.    Ct.   238. 

644-77.  Nature  of  authority.— If  the 
trial  court  had  exceeded  its  jurisdiction, 
a  prisoner  held  under  its  judgment  might 
be  discharged  from  custody  upon  a  writ 
of  habeas  corpus  by  another  court  having 
the  authority  to  entertain  the  writ;  though 
even  in  a  case  of  this  kind  a  court  will 
sometimes   refrain   from   releasing  a   pris- 


oner upon  writ  of  habeas  corpus,  and  will 
remit  him  to  his  remedy  by  writ  of  error. 
Kaizo  V.  Henry,  211  U.  S.  146,  148,  53  L. 
Ed.  125,  29  S.  Ct.  41. 

The  business  of  issuing  and  redeeming 
trading  stamps  is  not  so  manifestly  out- 
side the  range  of  judicial  consideration, 
under  Rev.  St.  D.  C,  §  1177,  making  it 
a  crime  to  engage  in  any  manner  in  any 
gift-enterprise  business  in  the  District,  as 
to  justify  relief  by  habeas  corpus  to  a 
person  convicted  of  that  ofifense,  on  the 
theory  that  the  trial  court  was  without 
jurisdiction.  Matter  of  Gregory,  219  U. 
S.  210,  55  L.  Ed.  184,  31  S.  Ct.  143. 

645-79a.  The  objection  that  the  original 
sentence,  before  modification  on  motion 
of  the  government's  counsel,  exceeded 
the  authority  of  the  court,  in  that  it  re- 
quired service  at  hard  labor,  is  not  avail- 
able on  habeas  corpus,  since,  at  most, 
only  that  part  of  the  sentence  in  excess 
of  the  law  is  void.  Harlan  v.  McGourin, 
218  U.  S.  442,  54  L.  Ed.  1101,  31  S.  Ct.  44, 
affirming  decrees  Ex  parte  Harlan  (C. 
C.   1909),  180  F.   119. 

647-96.  Constitution  of  grand  jury. — 
It  is  objected  that  the  order  for  the  im- 
panelling of  the  grand  jury  was  made  by 
a  judge  of  the  circuit  court  for  the  fifth 
circuit,  who,  although  within  his  circuit, 
was  not  within  the  district  where  the 
court  was  located  when  the  trial  was  had. 
If  there  were  otherwise  merit  in  this  ob- 
jection, it  certainly  could  not  be  made  on 
habeas  corpus.  Harlan  v.  McGourin,  218 
U.  S.  442,  451,  54  L.  Ed.  1101,  31  S.  Ct.  44. 

Disobeying  the  law  governing  the  se- 
lection of  grand  jurors  does  not  aflfect 
the  jurisdiction  of  the  court  so  as  to 
justify  the  release  by  habeas  corpus  of 
a  person  convicted  under  an  indictment 
found  by  such  jurors.  Matter  of  Moran, 
203  U.   S.  96.  51   L.   Ed.   105.  27  S.  Ct.  25. 

A  person  imprisoned  under  a  conviction 
in  an  Oklahoma  court  is  not  entitled  to 
his  release  on  habeas  corpus,  under  Rev. 
St.  U.  S.,  §  753  (U.  S.  Comp.  St.  1901,  p. 
592),  because  the  grand  jurors  were  sum- 
nioned  from  the  body  of  the  county,  which 
resulted  in  the  selection  as  such  jurors  of 
persons  who  were  not  electors  nor  resi- 
dents of  the  territory,  since  the  federal 
constitution  does  not  control  the  method 


614 


Vol.  \'I. 


HABEAS  CORPUS. 


648-661 


i.  Amendment  of  Indictment. — An  objection  that  the  indictment  was  not 
properly  presented  by  the  grand  jury,  based  on  testimony  that,  after  the  presen- 
tation of  the  original  indictment,  the  grand  jury  were  informed  by  the  district 
attorney  that  the  indictment  needed  amendment  in  some  particulars,  that  this 
amendnient  was  read  over  in  the  presence  of  the  grand  jury,  and  was  incorpo- 
rated into  an  indictment,  which  was  regularly  returned  to  court,  where  it  was 
produced  with  the  consent  of  all  the  grand  jurors,  if  ever  available,  can  not  be 
first  raised  on  habeas  corpus  after  conviction. ^^ 

6.  Judgment  or  Order  of  Court — a.  In  General. — See  note  5. 

c.    Erroneous  Judgment  or  Order — (1)   In  General. — ^ee  note  11. 

7.  Authority  of  Particular  Persons  and  Courts — a.  Executive  and  Legis- 
lative Branches  of  Government. — The  writ  of  habeas  corpus  does  not  lie  to  com- 
pel a  governor  of  a  state  to  deliver  up  a  person  in  custody  during  the  existence 
of  an  insurrection  declared  by  the  governor.-*^^ 

K.  As  Determined  by  Nature  of  Proceedings — 3.  Ix  Extradition  Cases. 
— See  ante,  Extradition,  p.  571. 

L.  As  Determined  by  Character  of  Person  in  Custody— 1.  Aliens— b. 
Alien  Immigrants — (2)    Under  Chinese  E.vchision  Acts. — See  note  68. 

0.  As  Determined  by  Defenses  to  Prosecution. — ^Matters  in  abatement 
and  substantive  defenses  are  not  open  on  habeas  corpus  to  test  the  validity  of 
proceedings  to  remove  to  another  federal  district  for  trial  a  person  there  charged 
with  an  offense  against  the  United  States. ^^^ 

VI.  Application  for  Writ. 

F.  Annexing  Copy  of  Process,  etc. — As  a  general  rule  in  habeas  corpus 
proceedings  a  copy  of  the  record  of  the  proceedings  attacked  is  required.'^ 


of  selection,  and  if  any  laws  have  been 
violated  by  this  method  they  are  terri- 
torial enactments,  which  are  not  laws  of 
the  United  States.  Matter  of  Moran,  203 
U.  S.  96,  51  L.  Ed.  105,  27  S.  Ct.  25. 

Questions  respecting  the  qualifications 
of  the  grand  jurors,  open  to  the  accused 
in  the  original  case,  can  not,  after  con- 
viction, be  raised  collaterally  by  habeas 
corpus,  which  may  not,  in  this  manner, 
usurp  the  functions  of  a  writ  of  error. 
Kaizo  V.  Henry,  211  U.  S.  146,  53  L.  Ed. 
125,  29  S.  Ct.  41.  See  ante,  GRAND 
JURY.  p.  609. 

648-3a.  Amendment  of  indictment. — 
Harlan  v.  McGourin,  218  U.  S.  442,  54  L. 
Ed.  1101,  31  S.  Ct.  44,  afifirming  decrees 
Ex  parte  Harlan  (C.  C),  180  Fed.  119. 

648-5.  Judgment  or  order  of  court. — 
The  attack  is  not  upon  the  jurisdiction 
and  authority  of  the  court  to  proceed  to 
investigate  and  determine  the  truth  of 
the  charge,  but  upon  the  sufficiency  of 
the  evidence  to  show  the  guilt  of  the  ac- 
cused. This  has  never  been  held  to  be 
within  the  province  of  a  writ  of  habeas 
corpus.  Harlan  r.  McGourin,  218  U.  S. 
442,   448,   54   L.    Ed.    1101,   31    S.    Ct.   44. 

649-11.  Erroneous  judgment  or  order. 
— .A.  circuit  court  of  the  United  States 
properly  denies  an  application  for  a  writ 
of  habeas  corpus  to  discharge  a  prisoner 
in  the  custody  of  the  court,  although  the 
court  erroneously  retains  jurisdiction  of 
the  case,  as  the  judgment  is  not  void  but 


only  erroneous.  Toy  Toy  v.  Hopkins,  212 
U.    S.   542,   53    L.    Ed.   644,   29   S.   Ct.  416. 

654-45a.  Where  the  governor  of  a  state 
declares  a  section  thereof  to  be  in  a  state 
of  insurrection,  his  declaration  is  con- 
clusive, and  a  labor  union  leader  im- 
prisoned for  inciting  the  insurrection  can 
not  be  liberated  on  the  writ  of  habeas 
corpus  from  a  United  States  court.  Moyer 
V.  Peabody.  212  U.  S.  78.  53  L.  Ed.  410, 
29   S.   Ct.  235. 

656-68.  Under  Chinese  Exclusion  Acts. — 
Habeas  corpus  should  be  granted  by  the 
federal  courts  to  a  Chinese  person,  claim- 
ing to  be  a  citizen  of  the  United  States, 
who  has  arbitrarily  been  denied  such  a 
hearing  and  opportunity  to  prove  his 
right  to  enter  the  United  States  as  the 
exclusion  acts  demand,  and  has  been 
placed  in  custody  of  a  steamship  com- 
pany, to  be  returned  to  China,  pursuant 
to  the  decisions  of  the  commissioner  of 
immigration  and  the  department  of  com- 
merce and  labor.  Chin  Yow  v.  United 
States.  208  U.  S.  8,  52  L.  Ed.  369,  28  S.  Ct. 
201,  distinguishing  United  States  v.  Ju 
Joy,  198  U.  S.  253,  49  L.  Ed.  1040. 

659-86a.  Order  (C.  C.  1909),  166  F.  621, 
affirmed.  Haas  z:  Henkel,  216  U.  S.  462, 
54  L.  Ed.  569,  30  S.  Ct.  249,  decided  under 
Rev.  St.,  §  1014. 

661-7a.  Annexation,  etc. — The  petition 
would  be  much  more  satisfactory  if  the 
general  rule  had  been  complied  with  and 
the  proceedings  had  before  the  immigra- 


615 


664-667 


HABEAS  CORPUS. 


Vol.  VI. 


IX.  Hearing  and  Determination. 

D.  Extent  of  Inquiry — 1.  In  Geneil^l. — See  note  36.  If  a  court  has  juris- 
diction of  the  case  the  writ  of  habeas  corpus  can  not  be  employed  to  retry  the 
issues,  whether  of  law  or  of  fact.^^^  Whether  a  particular  case  falls  within  the 
prohibition  of  a  valid  statute  is  for  the  determination  of  the  court  to  which  has 
been  confided  jurisdiction  over  the  class  of  offenses  to  which  the  statute  relates 
and  can  not  be  determined  on  a  writ  of  habeas  corpus. ^^'^ 

3.    Guilt  or  Innocence. — See  note  41. 

8.  Custody  under  Judgments  or  Orders  of  Court — b.  Jurisdiction. — Upon 
habeas  corpus  to  inquire  into  a  detention  under  a  conviction  in  a  federal  circuit 
court,  affirmed  by  the  proper  circuit  court  of  appeals,  the  bill  of  exceptions  can 
not  be  examined  with  a  view  to  determining  whether  there  was  any  testimony 
to  support  the  accusation. ^^a 

c.  Mere  Errors. — Upon  habeas  corpus  the  court  examines  only  power  and  au- 
thority of  the  court  to  act,  not  the  correctness  of  its  conclusions.^^'' 

9.  Commutation  of  Sentence. — A  letter  from  the  president's  secretary  to 
a  senator  showing  a  commutation  of  sentence  is  of  no  effect  on  habeas  corpus 


tion  officer  had  been  set  out.  Low  Wah 
Suey  V.  Backus,  225  U.  S.  460,  472,  56  L. 
Ed.  1165,  32  S.  Ct.  734. 

The  reasons  given  for  failure  to  comply 
with  this  rule,  as  stated  in  the  petition, 
are  that  the  record  is  too  voluminous  to 
be  made  a  part  thereof,  that  to  incorpo- 
rate a  copy  of  the  entire  proceedings  would 
"burden  the  petition  and  cloud  the  issue,"' 
that  the  petitioner  was  not  in  the  posses- 
sion of  the  entire  record  and  was  unable 
to  secure  it  in  time  to  file  it  with  his  pe- 
tition, and  that  the  commissioner  of  im- 
migration had  a  copy  of  the  record  which 
he  could  produce  with  the  body  of  Li  A. 
Sim.  It  does  not  appear  that  a  copy  of 
the  essential  part  of  the  proceedings  was 
not  in  the  possession  of  the  petitioner  or 
could  not  be  had,  and  so  far  as  it  was 
within  his  power  he  should  have  com- 
plied with  the  rule.  Low  Wah  Suey  v. 
Backus,  225  U.  S.  460,  472,  56  L.  Ed.  1165, 
32  S.  Ct.  734. 

664-36.  Hearing  and  determination. — 
The  jurisdiction  under  the  writ  of  habeas 
corpus  is  confined  to  an  examination  of 
the  record,  with  a  view  to  determining 
whether  the  person  restrained  of  his  lib- 
erty is  detained  without  authority  of 
law.  Harlan  v.  McGourin,  218  U.  S.  442, 
445,   54  L.    Ed.   1101,  31  S.   Ct.   44. 

Upon  habeas  corpus,  the  court  examines 
only  the  power  and  authority  of  the 
court  to  act,  not  the  correctness  of  its 
conclusions.  Glasgow  v.  Aloyer,  225  U. 
S.  420,  428,  56  L.  Ed.  1147,  32  S.  Ct.  753; 
Harlan  v.  McGourin,  218  U.  S.  442,  54  L. 
Ed.    1101,   31    S.    Ct.   44. 

664-38a.  Glasgow  v.  Moyer,  225  U.  S. 
420,  429,  56  L.   Ed.  1147,  32   S.   Ct.  753. 

664-38b.  Matter  of  Gregory,  219  U.  S. 
210,   218,   55   L.    Ed.   184,   31   S.   Ct.   143. 

Matter  of  Gregory,  219  U.  S.  210,  55  L. 
Ed.  184,  31  S.  Ct.  143,  was  a  writ  of  habeas 
corpus   brought  after   conviction,   and   we 


said  that  we  were  not  concerned  with  the 
question  whether  the  information  upon 
which  the  petitioner  was  prosecuted  and 
convicted  was  sufficient  or  whether  the 
case  set  forth  in  an  agreed  statement  of 
facts  constituted  a  crime,  that  is  to  say, 
whether  the  court  properly  applied  the 
law,  if  it  be  found  that  the  court  had 
jurisdiction  to  try  the  issues  and  to  ren- 
der judgment.  Glasgow  v.  Moyer,  225  U. 
S.  420,  429,  56  L.  Ed.  1147,  32  S.  Ct. 
753. 

664-41.  Guilt  or  innocence. — Matter  of 
Gregory,  219  U.  S.  210,  55  L.  Ed.  184,  31 
S.    Ct.    143. 

The  truth  of  an  allegation  is  an  indict- 
ment which  may  present  a  mixed  ques- 
tion of  law  or  fact  can  not  be  inquired 
into  on  habeas  corpus  sued  out  by  the  ac- 
cused, whose  interstate  extradition  is 
sought.  Judgment,  Ex  parte  Pierce  (C.  C. 
1907),  155  F.  663,  affirmed.  Pierce  v. 
Creecy,  210  U.  S.  387,  52  L.  Ed.  1113,  28 
S.    Ct.   714. 

666-52a.  Jurisdiction. — Harlan  v.  AIc- 
Gourin,  218  U.  S.  442,  54  L.  Ed.  1101,  31 
S.  Ct.  44,  affirming  decrees  Ex  parte 
Harlan  (C.  C),  180  Fed.  119. 

A  bill  of  exceptions  can  be  treated  as 
part  of  the  record  proper  only  in  an  ap- 
pellate proceeding,  laeing  improperly  used 
on  habeas  corpus  to  show  error  by  the 
trial  court,  and  especially  on  a  point  which 
has  been  affirmed  by  a  higher  court,  and 
hence  on  habeas  corpus  the  bill  of  ex- 
ceptions will  not  be  opened  to  determine 
from  the  evidence  whether  the  ofTense 
committed  in  another  jurisdiction.  Ex 
parte  Harlan,  180  F.  119,  decrees  affirmed. 
Harlan  v.  McGourin,  218  U.  S.  442,  54  L. 
Ed.   1101,  31   S.   Ct.  44. 

667-59a.  Mere  errors. — Harlan  v.  Mc- 
Gourin, 218  U.  S.  442,  448,  54  L.  Ed.  1101, 
31    S.    Ct.    44. 


616 


Vol.  VI.  HEARING.  668-684 

proceedings  by  the  prisoners ;  the  president's  action  properly  appearing  by  the 
warrant  of  commutation  or  a  certified  copy  thereof.*^^'' 

F.  Decision  on  Hearing — 3>^.  Rkformixg  SENTSNCE.^On  application  to  a 
federal  circuit  court  for  habeas  corpus  by  one  convicted  therein,  the  court  can 
correct  the  sentence  or  resentence  the  prisoner.^i* 

HABITUAL  CRIMINALS.— See  ante,  Constitutional  Law,  p.  264;  Duk 
Process  of  Law,  p.  475;  post,  Sentence  and  Punishment. 

HANDWRITING. — See  the  title  Handwriting,  vol.  6,  p.  674,  and  references 
there  given. 

HARMLESS  ERROR.— See  ante,  Appeal  and  Error,  p.  34. 

HARTER  ACT.— See  ante.  Carriers,  p.  216;  Collision,  p.  243;  post,  Ships 
and  Shipping. 

HAWKERS  AND  PEDDLERS.— See  the  title  Hawkers  and  Peddlers,  vol. 
6,  p.  680,  and  references  there  given.  In  addition,  as  to  the  right  to  tax  peddlers 
from  another  state,  see  post.  Interstate  and  Foreign  Commerce. 

HEADS  OF  DEPARTMENTS.— See  post.  Mandamus. 


HEALTH. 

I.  Powers  in  Relation  to  the  Public  Health,  617. 

B.  Powers  of  the  States,  617. 

1.  In  General,  617. 

C.  Powers  of   Municipal  Corporations,  617. 

CROSS  REFERENCES. 
See  the  title  Health,  vol.  6,  p.  681.    And  see  ante,  Courts,  p.  398. 

I.  Powers  in  Relation  to  the  Public  Health. 

B.  Powers  of  the  States — 1.  Ix  General. — See  note  1. 

C.  Powers  of  Municipal  Corporations. — Due  process  of  law  is  not  denied 

the  owner  or  custodian  of  food  in  cold  storage  by  a  municipal  ordinance  under 
which  such  food,  when  unfit  for  human  consumption,  may  summarily  be  seized, 
condemned  and  destroyed  by  municipal  officers  without  a  preliminary  hearing.^^^ 

HEARING. — See  ante,  Appeal  and  Error,  p.  34;   post,  Injunctions. 

668-65a.  Commutation. — Ex  parte  Har-  authorized  by  the  statute.  (C.  C.  1909) 
Ian  (C.  C.J,  ISO  Fed.  119,  decrees  af-  Ex  parte  Harlan,  ISO  F.  119,  decrees  af- 
firmed. Harlan  v.  McGourin,  218  U.  S.  firmed.  Harlan  r.  McGourin.  218  U.  S. 
442,  54  L.   Ed.   1101.  31   S.   Ct.  44.  442,   54   L.    Ed.   1101,   31    S.   Ct.   44. 

669-81a.     Reforming   sentence. — On    ap-  682-1.  Police  power  embraces  health  reg- 

pHcation   to   the    federal   circuit   court   for  ulations. — IMoeschen    v.    Tenement    House 

habeas    corpus   by   one   convicted   therein,  Department,  203  U.  S.  583,  51  L.  Ed.  328, 

the  court  can  correct  the  sentence  if  it  be  27   S.   Ct.  781,   affirming  179   N.   Y.  325,  73 

excessive  or  resentence,  and  hence  where  X.  E.  231,  70  L.  R.  A.  704,  103  Am.  St.  Rep. 

persons  convicted  of  conspiring  to  commit  910. 

a  federal  ofifense  under  Rev.  St.,  §  5440  (U.  684-13a.     Ordinance  as  to  food  in  cold 

S.  Comp.  St.  1901,  p.  3676).  were  sentenced  storage. — North    American    Cold    Storage 

to   imprisonment   "at  hard   labor,"   on   ha-  Co.  v.  Chicago,  211  U.  S.  306,  53  L.  Ed.  195, 

beas    corpus    proceedings    the  trial    court  29  S.  Ct.  101.     See  ante,  DUE  PROCESS 

can  amend  the  sentence  nunc  pro  tunc  by  OF  LAW,  p.  475. 
striking  the   quoted  words,  which  are   not 

617 


688-691  HOMBSTBAD.  Vol.  VI. 


HEARSAY  EVIDENCE. 
III.  Admissibility,  618. 

A.  In  General,  618. 

3.  Admission  without  Objection,  618. 

B.  Testimony  of  a  Witness  in  a  Former  Proceeding,  618. 

1.  In  a  Civil  Proceeding,  618. 

2.  In  a  Criminal  Proceeding,  618. 

CROSS  REFERENCES. 

See  the  title  Hearsay  Evidence,  vol.  6,  p.  686,  and  references  there  given. 

In  addition,  see  post,  Military  Law.  As  to  the  admissibility  of  declarations 
and  admissions,  see  ante,  Declarations  and  Admissions,  p.  459.  As  to  the 
admissibility  of  documentary  evidence,  see  ante.  Documentary  Evidence, 
p.  469. 

III.  Admissibility. 

A.  In  General — 3.  Admission  without  Objection. — When  hearsay  evidence 
is  admitted  without  objection  it  is  to  be  considered  and  given  its  natural  proba- 
tive effect  as  if  it  were  in  law  admissible. ^"^ 

B.  Testimony  of  a  Witness  in  a  Former  Proceeding — 1.  In  a  Civil  Pro- 
ceeding.— Contribution  by  a  corporation  to  the  expenses  of  the  defense  of  a 
patent  infringement  suit,  induced  by  business  reasons  and  indirect  interest,  but 
without  the  right  to  intermeddle  in  any  way  with  the  conduct  of  the  case,  does 
not  make  such  corporation  a  privy  to  the  suit,  so  as  to  render  admissible,  in  a 
suit  against  it  for  infringement  of  the  same  patent,  the  testimony  in  the  former 
suit  of  a  witness  since  deceased. ^^a 

2.  In  a  Criminal  Proceeding. — In  a  criminal  prosecution  if  the  testimony 
of  witnesses  taken  at  the  preliminary  investigation  or  at  a  former  trial  is  admitted 
in  evidence  at  the  request  of  the  accused  or  without  objection  by  him,  it  is  not 
subject  to  the  objection  that  it  is  hearsay. ^^^ 

HEIR,  HEIRS  AND  THE  LIKE.— See  the  title  Heir,  Heirs  and  the  Like, 
vol.  6,  p.  690,  and  references  there  given.  In  addition,  see  post,  Shelley's 
Case  (Rule  in). 

HEREAFTER.— See  note  la. 

HIGHWAYS. — See  post.  Streets  and  Highways;  Telegraphs  and  Tele- 
phones. 

HIRE. — See  post.  Landlord  and  Tenant. 

HOMESTEAD.— See  post,  Indians;    Public  Lands. 

688-8a.     Evidence  admitted  without  ob-  691-la.       Hereafter      rendering     statute 

jection. — Diaz  v.  United  States,  223  U.  S.  prospective. — The    words    "that    hereafter 

442,  56  L.  Ed.  500,  32  S.  Ct.  250.  any    person    or    persons    entering    into    a 

688-12a.    Effect  of  contribution  by  a  cor-  formal   contract   with   the   United   States" 

poration    to    expenses    of    the    defense    in  in  the  amendment  made  by  the  Act  of  Feb. 

former  action.— Rumford  Chemical  Works  24,    1905,  to    the  Act    of    August  13,    1894, 

V.  Hygienic  Chemical  Co.,  215  U.   S.   156,  for   the   protection    of  persons    furnishmg 

54    L.  Ed.    137,  30  S.    Ct.  45,  affirming    154  materials  or  labor  for  the  construction  of 

Fed.  Rep.  65,  83  C.  C.  A.  177,  and  revers-  public  work,  render  it  prospective,  and  it 

ing  159  Fed.  Reo.  436,  86  C.  C.  A.  416.  does   not  affect  existing  causes   of  action. 

689-16a.  Testimony  admitted  without  "^"'^f  ^?^^A''  ^no  n^^<;  w'  ?o'' t''' Fh' «nV 
objection.-Diaz  v.  United  States,  223  U.  11^  ^f^^  ?°-'  ^^^  U.  S.  306  53  L^  Ed.  804, 
S.  442,  56  L.  Ed.  500,  32  S.  Ct.  250.  fiENS  MECHANICS 

618 


Vol.  VI.  HUNYADI.  702-715 

HOMESTEAD  CLAIM.-^See  post,  Public  Lands 

HOMESTEAD  EXEMPTIONS.-See  the  title  Homestead  Exi^mptions,  vol. 
6,  p.  693,  and  references  there  given. 

HOMESTEAD  LAW.— See  post,  Public  Lands. 


HOMICIDE. 

IV.  Justifiable  and  Excusable  Homicide,  619. 

C.  Self-Defense,  619. 
1.  In  General,  619. 

V.  Procedure,  619. 

A.  Jurisdiction,  619. 

1.  In  General,  619. 

B.  Indictment,  619. 

2.  Time  and  Place,  619. 

CROSS  REFERENCES. 

See  the  title  Homicide,  vol.  6,  p.  695,  and  references  there  given. 

In  addition,  see  ante,  Appeal  and  Error,  p.  34;  Courts,  p.  398;  Criminal 
Law,  p.  434;  post,  Indictments,  Informations,  Presentments  and  Com- 
plaints; Verdict. 

IV.  Justifiable  and  Excusable  Homicide. 
C.  Self-Defense — 1.  In  General. — See  note  24. 

V.  Procedure. 

A.  Jurisdiction — 1.  In  General. — For  a  full  treatment  of  this  subject,  see 
ante,  Criminal  Law,,  p.  434. 

B.  Indictment — 2.  Time  and  Place. — For  a  treatment  of  this  subject,  see 
post.  Indictments,  Informations,  Presentments  and  Complaints. 

HOSPITALS  AND  ASYLUMS.— See  the  title  Hospitals  and  Asylums,  vol. 
6,  p.  715,  and  references  there  given. 

HUNYADI. — Hunyadi  is  now  only  a  geographical  expression  in  effect.^* 

702-24.  Resisting  arrest — Illegal  war-  trademark  or  trade  name  in  the  words 
rant. — A  peremptory  instruction  to  acquit  "Hunyadi  Janos,"  for  a  natural  bitter 
one  accused  of  homicide  in  resisting  ar-  water  is  not  entitled,  in  the  absence  of 
rest  because  the  statute  under  which  the  fraud  or  unfair  competition,  to  enjoin  the 
arrest  was  attempted  and  the  arrest  war-  manufacturer  of  an  artificial  bitter  water 
rant  was  issued  is  void  under  the  federal  from  advertising  and  labeling  the  product 
constitution  is  properly  refused,  where,  if  "Artificial  Hunyadi,"  especially  since  the 
the  state's  testimony  is  to  be  believed,  the  word  Hunyadi  has  become  a  generic  name 
accused,  without  any  warning,  or  resort-  for  mineral  waters  of  a  certain  type,  coin- 
ing to  any  other  means  of  resistance,  and  ing  from  a  more  or  less  extensive  district, 
after  the  officer  had  knocked  for  admis-  if  not  from  anywhere  in  Hungary.  Hun- 
sion,  shot  such  officer  upon  his  entering  yadi  at  best,  is  now  only  a  geographical 
the  open  door,  armed  with  a  supposed  expression  in  effect.  Saxlehner  v.  Wag- 
warrant  of  arrest.  Franklin  v.  South  Car-  ner,  216  U.  S.  375,  54  L.  Ed.  525,  30  S.  Ct. 
olina,  218  U.  S.  161,  54  L.  Ed.  980,  30  S.  Ct.  298.  See  post,  TRADEMARKS,  TRADE- 
640,  affirming  judgment.  State  v.  Frank-  NAMES  AND  UNFAIR  C  O  M  P  E  T  I- 
lin  (1908),  GO  S.  E.  953,  80  S.  C.  332.  TION. 

715-3a.       Hunyadi. — The      owner     of     a 

019 


718-727  HUSBAND  AND  WIFE.  Vol.  VL 


HUSBAND  AND  WIFE. 
I.  Powers  and  Disabilities,  620. 

A.  Powers  and  Disabilities  of  Wife,  620. 

1.  Contractual  Capacity,  620. 

a.  General  Rules,  620. 

b.  Particular  Contracts,  620. 

( 1 )  Contracts  to  Convey,  620. 
(5)  Conveyances  of  Real  Estate,  620. 
(b)   Under  Statutes,  620. 

II.  Property  Rights,  620. 

B.  Community  Property,  620. 

1.  In  General,  620. 

6.  In  Philippine  Islands,  621. 

VIII.  Actions,  621. 

C.  Actions  or  Suits  between  Husband  and  Wife,  621. 

1.  Actions  at  Law,  621. 

CROSS  REFERENCES. 
As  to  family  settlements,  see  ante,  Descent  and  Distribution,  p.  463. 

I.  Powers  and  Disabilities. 

A.  Powers  and  Disabilities  of  Wife — 1.  Contractual  Capacity — a.  Gen- 
eral Rules. — See  notes  1,  4. 

b.    Particular  Contracts — (1)   Contracts  to  Convey. — See  note  5. 

(5)    Conveyance  of  Real  Estate — (b)    Under  Statutes. — See  note   12. 

II.  Property  Rights. 

B.  Community  Property — 1.  In  General. — Community  property  acquired 
by  the  husband  before  the  passage  of  New  Alexico  Laws  1901,  chap.  62,  §  6  (a), 
is  subject  to  the  provision  of  that  section  that  neither  husband  nor  wife  shall 
dispose  of  real  estate  accjuired  during  coverture  by  onerous  title  unless  both  join 
in  the  execution  of  the  deed.-''^'' 

718-1.  Contractual  capacity. — ^"At  the  to  control  and  dispose  of  her  own  prop- 
common  law,  the  husband  and  wife  were  erty  free  from  the  constraint  of  the  hus- 
regarded  as  one,  the  legal  existence  of  the  band,  in  many  instances  to  carry  on  trade 
wife  during  coverture  being  merged  in  and  business,  and  to  deal  with  third  per- 
that  of  the  husband,  and,  generally  speak-  sons  as  though  she  were  a  single  woman, 
ing,  the  wife  was  incapable  of  making  con-  The  wife  has  further  been  enabled  by  the 
tracts,  of  acquiring  property  or  disposing  passage  of  such  statutes  to  sue  for  tres- 
of  the  same  without  her  husband's  con-  pass  upon  her  rights  in  property,  and  to 
sent."  Thompson  v.  Thompson,  218  U.  S.  protect  the  security  of  her  g^erson  against 
611.  54  L.  Ed.  1180,  31  S.  Ct.  111.  the     wrongs     and     assaults     of     others."' 

"They    could    not  enter    into    contracts  Thompson  v.  Thompson,  218  U.  S.  611,  54 

with  each  other,  nor  were  they  liable  for  L.  Ed.  1180,  31  S.  Ct.  111. 

torts  committed  by  one  against  the  other."  718-5.      Contracts    to    convey. — Thomp- 

Thompson  v.  Thompson,  218  U.  S.  611,  54  son  v.  Thompson,  218  U.  S.  611,  54  L.  Ed. 

L.  Ed.  1180,  31  S.  Ct.  111.  1180,  31   S.  Ct.  111. 

718-4.    Modification  of  common-law  rule  719-12.     Conveyance  of  real  estate — Un- 

by  statute. — "In  pursuance  of  a  more  lib-  der    statutes. — Thompson    v.     Thompson, 

eral   policy  in   favor   of   the   wife,   statutes  218  U.  S.  611,  5-t  L.  Ed.  1180,  31  S.  Ct.  111. 

have    been    passed  in    many  of  the    states  See  ante,  ACKNOWLEDGMENTS,  p.  7. 

looking  to  the  relief  of  a  married  woman  727-54a.     Prior    to    New    Mexico    laws 

from  the  disabilities  imposed  upon  her  as  1901. — Arnett  v.   Reade,   220   U.   S.   311,   55 

a  feme   covert  by  the   common  law.     Un-  L.   Ed.  477,  31   S.  Ct.  425. 

der   these   laws   she   has   been   empowered  A  husband  had  no  vested  rights  in  the 

620 


Vol.  VI.  IDENTITY  OP  SUITS.  729-736 

6.  In  Philippine  Islands. — On  the  death  of  the  wife,  the  husband,  if  sur- 
viving, was  entitled,  under  the  Spanish  law  in  force  in  the  Philippine  Islands, 
to  settle  the  affairs  of  the  community,  and  on  his  death  his  executor  was  the 
proper  administrator  of  the  same.*''^^  Services  rendered  in  aid  of  winding  up 
the  community  business  were  a  proper  charge  on  the  community  estate,  under 
Civ.  Code  P.  I.  1889,  art.  1064,  even  though  rendered  after  the  death  of  both 
husband  and  wife.^'^'' 

VIII.  Actions. 

C.  Actions  or  Suits  between  Husband  and  Wife — 1.  Actions  at  Law. — 
The  common-law  relation  between  husband  and  wife  was  not  so  far  modified 
as  to  give  the  wife  a  right  of  action  to  recover  damages  from  her  husband  for 
an  assault  and  battery  committed  by  him  upon  her  person,  by  Code  D.  C, 
§  1155,  authorizing  married  women  "to  sue  separately  for  the  recovery,  se- 
curity, or  protection  of  their  property,  and  for  torts  committed  against  them, 
as  fully  and  freely  as  if  they  were  unmarried. '"^^ 

IDEM  SONANS. — See  post,  Indictments,  Informations,  Presentments 
AND  Complaints;   Names. 

IDENTICAL.— See  post.  Patents. 

IDENTIFICATION.— See  ante,  Boundaries,  p.  206;    post,  Identity. 

IDENTITY. 

CROSS  REFERENCES. 
See  the  title  Identity,  vol.  6,  p.  736,  and  references  there  given.     In  addi- 
tion, see  ante.  Extradition. 

There  is  a  presumption  that  a  foreign  magistrate  had  proper  reason  for  cer- 
tifying as  to  the  identity  of  a  photograph  and  the  prisoner  held  for  extradi- 
tion.*^'^ 

IDENTITY  OF  PARTIES.— See  post,  Res  Adjudicata. 
IDENTITY  OF  SUITS.— See  post,  Res  Adjudicata. 

community  property  acquired  prior  to  the  but  to  allow  the  wife,  in  her  own  name, 
passage  of  N.  M.  Laws  1901,  chap.  62,  §  6  to  maintain  actions  of  tort  which,  at  com- 
(a),  of  which  he  would  be  deprived  by  ap-  mon  law,  must  be  brought  in  the  joint 
plying  to  such  property  the  provision  of  names  of  herself  and  husband.  This  con- 
that  section  that  neither  husband  nor  wife  struction  we  think  is  obvious  from  a  read- 
shall  dispose  of  real  estate  acquired  dur-  ing  of  the  statute  in  the  light  of  the  pur- 
ing  coverture  by  onerous  title  unless  both  pose  sought  to  be  accomplished.  It  gives 
join  in  the  execution  of  the  deed.  xA.rnett  a  reasonable  effect  to  the  terms  used,  and 
V.  Reade,  220  U.  S.  311,  55  L.  Ed.  477,  31  accomplishes,  as  we  believe,  the  legisla- 
S.  Ct.  425.  tive  intent,  which  is  the  primary  object  of 
729-69a.  In  the  Philippines.— Enriquez  all  construction  of  statutes."  Thompson 
T'.  Go-Tiongco,  220  U.  S.  307,  55  L.  Ed.  476,  'l';  Thompson,  218  U.  b.  611,  54  L.  Ed.  1180, 

31    S    Ct    423  '^^^• 

„■  „„;      _;                   .     ^                   -4.       „  736-6a.    Presumptions  as  to  photograph. 

729-69b.  Charge  against  community  es-  _identity  of  a  prisoner  held  for  extradi- 

tate-Service    for    winding    up.- Enrique.  ^.^^  ^^^  ^  photograph  is  sufficiently  made 

V.  Go-Tiongco,  220  U.  S.  30<,  o,j  L.  Ld.  476,  ^^^^    ^^^^^   ^   foreign   magistrate   certifies 

31  S.  Ct.  423.                                  ^  as  to  his  own  knowledge  of  the  identity. 

734-7a.    Actions  at  law — Suit  for  assault  since  there  is  a  presumption  that  he  had 

on  wife. — Thompson  v.  Thompson,  218  U.  some  reason  for  so  doing.     Glucksman  v. 

S.  611,  54  L.  Ed.  1180,  31  S.  Ct.  Ill,  affirm-  Henkel,   221    U.    S.    508.   55    L.    Ed.    830.   31 

ing  31  App.  D.  C.  557.  S.  Ct.  704.     See  ante,  EXTRADITION,  p. 

"The   statute  was  not  intended  to  give  571;   PRESUMPTIONS   AND   BURDEN 

a  right  of  action  as  against  the  husband,  OF  PROOF. 

621 


736-756  IMITATION  HORSEHAIR.  Vol.  VI. 

IDIOTS.— See  post,  Insanity. 
IF. — See  note  a. 


ILLEGAL  CONTRACTS. 

II.  Public  Policy  and  Contracts  Contrary  to,  622. 
B.  Contracts  Contrary  to  Public  Policy,  622. 

22.  Indemnity  Contract  with  Surety  on  a  Bail  Bond,  622. 

23.  Contract  by  a  Municipality  Limiting  the  Exercise  of  Its  Legis- 

lative Power,  622. 

CROSS  REFERENCES. 

See  the  title  Illegal  Contracts,  vol.  6,  p.  7Z7 ,  and  references  there  given. 
In  addition,  see  post,  Impairme;nt  of  Obligation  of  Contracts;  Monopolisms 
and  Corporate  Trusts  ;  Police  Power. 

II.  Public  Policy  and  Contracts  Contrary  to. 

B.  Contracts  Contrary  to  Public  Policy — 22.  Indemnity  Contract  with 
Surety  on  a  Bail  Bond. — Public  policy  does  not  forbid  an  agreement  under 
which  the  surety  on  a  bail  bond  becomes  such  upon  condition  that  certain  secu- 
rities held  in  trust  or  on  deposit  by  a  third  person  shall  remain  in  the  latter's 
hands  as  security  and  indemnity  for  signing  the  bond.'*'^'' 

23.  Contract  by  a  Municipality  Limiting  the  Exercise  of  Its  Legisla- 
tive Power. — Any  contract,  made  by  a  municipal  corporation  with  a  railroad 
company,  which  limits  the  exercise  of  its  legislative  power  to  require  the  com- 
pany to  construct  and  maintain  suitable  crossings  at  existing  and  future  streets, 
within  the  municipality,  is  void  as  against  public  policy.^ '^'' 

ILLICIT  GRATUITIES— GRAFT.— -See  post.  Public  Officers. 
IMITATION  HORSEHAIR.— See  note  la. 

736-a.      Certain   proceedings    if    deemed  tive  power. — Northern  Pac.  R.  Co.  v.  Du- 

expedient.— Section  106  of  the  Act  of  July  luth,  208  U.  S.  583,  52  L.  Ed.  630,  28  S.  Ct. 

20,  1868,  providing  that  the  commissioner  341.     See,  also,  post,  MUNICIPAL  COR- 

of  internal  revenue  may,  "if  he  deems  it  PORAllONS. 

expedient,"  proceed  by  bill  in  chancery,  756-la.  Imitation  horsehair  produced 
to  enforce  liens  for  revenue  taxes,  did  not  from  cotton  waste  by  a  chemical  process, 
withdraw  from  the  government  the  right  being  like  cotton  yarn  as  to  material  and 
then  existing  to  resort  to  distraint  and  use,  is  dutiable  under  the  similitude  clause 
sale  under  the  Act  of  July  13,  1866.  The  of  the  Tarifif  Act  of  July  24,  1897  (30  Stat, 
provision  authorized,  but  did  not  require,  at  L.  151,  chap.  11,  U.  S.  Comp.  Stat.  1901, 
a  suit  in  equity,  and  left  untouched  the  p.  1626),  §  7,  at  the  rate  levied  by  para- 
right  of  the  government  to  proceed  by  graph  302  on  cotton  yarn,  and  not  under 
distraint.  The  words  "if  he  deems  it  ex-  §  6  as  a  nonenumerated  manufactured 
pedient."  are  significant  as  tending  to  re-  article.  United  States  v.  Eckstein,  222  U. 
move  all  doubt  as  to  the  correct  interpre-  S.  130,  56  L.  Ed.  125,  32  S.  Ct.  65.  See 
tation  of  the  statute  and  make  it  evident  post,  REVENUE  LAWS, 
that  congress  did  not  intend  to  take  away  "Artificial  or  imitation  horsehair  is 
the  remedy  by  distraint  and  make  the  made  from  cotton  waste  by  two  processes, 
rem_edy  by  suit  exclusive,  but  only  to  give  the  Fremery  and  the  Chardonnet.  By 
another  and  cumulative  remedy  for  the  the  first  process,  referred  to  in  the  opin- 
enforcement  of  liens  and  taxes.  Black-  ion  of  the  circuit  court  of  appeals  for  the 
lock  V.  United  States,  208  U.  S.  75,  86,  52  second  circuit,  in  Hardt  von  Bernuth  & 
L.  Ed.  396,  28  S.  Ct.  228.  See  post,  REV-  Co.  v.  United  States,  76  C.  C.  A.  638,  146 
ENUE  LAWS.  Fed.   61,  the  cotton  waste  is  dissolved  in 

747-46a.  Indemnity  contract  with  surety  a  solution  of  cup-ammonium,  a  salt  of  cop- 
on  a  bail  bond. — Leary  v.  United  States,  per  and  ammonia,  and  this  solution  is 
224  U.  S.  567,  56  L.  Ed.  889,  32  S.  Ct.  599.  forced  through  fine  openings,  discharging 

747-46b.     Contract  by  municipal  corpo-  into  a  bath  of  acetic  acid,  forming  threads 

ration  limiting  the  exercise  of  its  legisla-  of  cellulose.     By  the  second  process  the 

622 


Vol.  VI. 


IMMUNITY  FROM  TRIAL. 


750 


IMMIGRATION.— See  ante,  Auens,  p.   18;    Chinese  Exci^usion  Acts,  p. 
232. 

IMMORAL.— See  note  3b. 

IMMOVABLE  PROPERTY.— See  note  3a. 

IMMUNITY.— See  ante,  Constitutional  Law,  p.  264. 

IMMUNITY  FROM  SUIT.— See  post,  States;    United  States. 

IMMUNITY  FROM  TRIAL.— See  ante,  Extradition,  p.  571. 


cotton  waste,  or  raw  cotton,  is  at  first 
turned  into  gun  cotton.  This  gun  cotton  is 
then  mixed  with  alcohol  and  ether,  and 
dissolved  into  a  liquid,  and  this  liquid  is 
forced  by  pressure  through  pipes,  at  the 
end  of  which  there  are  a  number  of  small 
openings.  The  material  is  subsequently 
subjected  to  a  process  which  it  is  not  nec- 
essary to  describe.  In  the  manufacture 
under  both  processes  the  single  filaments 
are  not  allowed  to  solidify,  although  they 
are  made  to  stick  together,  whereas  in  the 
manufacture  by  the  like  process  of  arti- 
ficial silk,  the  fine  filaments  are  grouped 
and  twisted  together  and  solidified.  The 
imitation  horsehair  is  usually  died  black, 
imported  in  skeins,  and  sometimes  on 
spools.''  United  States  z'.  Eckstein,  222  U. 
S.  130,  56  L.  Ed.  125,  32  S.  Ct.  65. 

756-3b.  Immoral  purpose. — It  may  be 
admitted  that  in  accordance  with  the 
familiar  rule  of  ejusdem  generis,  the  im- 
moral purpose  referred  to  by  the  words 
"any  other  immoral  purpose,"  in  the  Act 
of  February  20,  1907,  prohibiting  the  im- 
portation of  alien  women  "for  the  pur- 
pose of  prostitution,  or  for  any  other 
immoral  purpose,"  must  be  one  of  the 
same  general  class  or  kind  as  the  par- 
ticular purpose  of  "prostitution"  specified 
in  the  same  clause  of  the  statute;  but  that 
rule  can  not  avail  the  accused  where  the 
immoral  purpose  charged  in  the  indict- 
ment is  of  the  same  general  class  or  kind 
as  the  one  that  controls  in  the  importa- 
tion of  an  alien  woman  for  the  purpose 
strictly  of  prostitution.  It  must  be  as- 
sumed that  in  using  the  words  "or  for 
any  other  immoral  purposes,"  congress 
had  reference  to  the  views  commonly  en- 
tertained among  the  people  of  the  United 
States  as  to  what  is  moral  or  immoral  in 
the  relations  betweeli  man  and  woman 
in  the  matter  of  such  intercourse,  it  must 
be    held    that    congress    intended    by    the 


words  "or  for  any  other  immoral  pur- 
pose," to  include  the  case  of  any  one  who 
imported  into  the  United  States  an  alien 
woman  that  she  might  live  with  him  as 
his  concubine.  United  States  v.  Bitty, 
208  U.  S.  393,  402,  52  L.  Ed.  543,  28  S.  Ct. 
396.     See  ante,  ALIENS,  p.  18. 

756-3a.  Immovable  property. — "Follow- 
ing the  Code  Napoleon,  the  Porto  Rican 
Code  treats  as  immovable  (real)  property, 
not  only  land  and  buildings,  but  also  at- 
tributes immovability  in  some  cases  to 
property  of  a  movable  nature;  that  is, 
personal  property,  because  of  the  desti- 
nation to  which  it  is  applied.  'Things,' 
says  §  334  of  the  Porto  Rican  Code,  may 
be  immovable  either  by  their  own  nature 
or  by  their  destination,  or  the  object  to 
which  they  are  applicable.'  Numerous 
illustrations  are  given  in  the  fifth  sub- 
division of  article  335,  which  is  as  fol- 
lows: 'Machinery,  vessels,  instruments, 
or  implements  intended  by  the  owner  of 
the  tenements  for  the  industry  or  works 
that  they  may  carry  on  in  any  building 
or  upon  any  land,  and  which  tend  di- 
rectly to  meet  the  needs  of  the  said  in- 
dustry or  works.'  See,  also.  Code  Na- 
poleon, articles  516,  518,  et  seq.,  to  and 
inclusive  of  article  534,  recapitulating  the 
things  which,  though  in  themselves  mov- 
able, may  be  immoboHzed."  Valdes  v. 
Central  Altagracia,  225  U.  S.  58,  56  L.  Ed. 
980,   32    S.    Ct.    664. 

A  transfer  of  a  lease  of  real  property 
which,  among  other  obligations  imposed 
on  the  lessee,  stipulates  for  the  immobili- 
zation of  machinery  to  be  installed  by 
the  tenant,  is  a  contract  concerning  real 
rights  to  immovable  property,  within  the 
meaning  of  P.  R.  Civ.  Code.  §  613,  relat- 
ing to  the  registration  of  property.  Valdes 
V.  Central  Altagracia,  225  U.  S.  58,  56  L. 
Ed.  980.  32  S.  Ct.  664.  See  post,  RE- 
CORDING ACTS. 


623 


IMPAIRMENT,  ETC.,  OF  CONTRACTS.  Vol.  VI. 


IMPAIRMENT  OF  OBLIGATION  OF  CONTRACTS. 

I.  General  Consideration,   626. 

C.  Definition  and  Distinctions,  626. 

3.  What  Is  the  "ObHgation  of  a  Contract,"  626. 

a.  "ObHgation"  Defined,  626. 

b.  Laws    Affecting    Vahdity,  Construction,    Discharge  and    En- 

forcement, 626. 
G.  The  Rule  That  There  Must  Be  a  Valid  Contract,  626. 

II.  What  Laws  Impair  the  Obligation  of  Contracts,  627. 

D.  Laws  of  Congress,  627. 

F.  Judicial  Decisions,  627. 

1.  In  General,  627.  * 

G.  By-Laws  and  Ordinances,  627. 

J.  Pre-Existing  Statutes  Unobjectionable,  627. 

M.  Orders  of  Administrative  Bodies,  Railroad  and  Corporation  Commis- 
sions, etc.,  629. 

III.  Contracts  within  Purview  of  Prohibition,  629. 

D.  Contracts  of  States,  629. 

1.  In  General,  629. 

2.  Violation  of  Contracts  by  the  State,  629. 
7.  Land  Grants;  630. 

b.  Statutes  Prescribing  the  Mode  or  Form  of  Settling  Titles,  630. 

c.  Statutes  Annulling  Grants,  630. 

11.  Grants  of  Exclusive  Privileges,  630. 

a.  In  General,  630. 

g.  Grant  of  Franchise  or  Privilege  to  Telephone  and  Telegraph 
Companies,  630. 

12.  Power  of  State  to  Impair  Contracts  through  Its  Taxing  Power,  631. 

a.  In  General,  631. 

c.  Inheritance  Taxes,  631. 
F.  Compacts,  631. 
J.  Contracts  of  Municipalities,  632. 

1.  In  General,  632. 

2.  How  Obligation  Impaired. 

a.  By  Mere  Refusal  to  Perform,  632. 

b.  By  Mere  Denial  of  Liability,  632. 

3.  Right  to  Contract  Away  Its  Legislative  Powers,  632. 

4.  Ultra  Vires  Contracts,  633. 

5.  Particular  Contracts   Considered,  633. 

a.  Municipal  Aid  Contracts,  633. 

(1)  In  General,  633. 

b.  Contracts  with  Street  Railroads,  633. 

(3^)  In  General,  633. 

(4)   Regulation  of  Rates,  633. 

6.  Ordinances  Granting  Privileges  to  Public  Service  Companies,  634. 

7.  Regulation  of  Streets  and  Highways,  635. 
O.  Marriage  Contracts,  635. 

U.  Licenses,  635. 

624 


Vol.  \'I.  IMPAIRMENT,  ETC.,  OF  CONTRACTS. 

IV.  Laws  Concerning  Civil  Institutions  or  Governmental  Subjects,  635. 

A.  In  General,  635. 

B.  Police  Power,  635. 

D.  Exercise  of  Eminent  Domain,  635. 

E.  Public  Offices  and  Officers,  636. 

F.  Control  over  Navigable  Waters,  636. 

V.  Contracts  of  Private  Individuals,  636. 

B.  How  Obligation  Impaired,  636. 

2.  Law  Affecting  \"aliditv.  Construction,  Discharge  and  Enforcement, 
636. 
d.  Laws  Annexing  Conditions  to  Its  Enforcement,  636. 
D.  Contracts  of  Stockholders,  636. 

VI.  Legislative  Control  over  Public  and  Private  Corporations,  636. 

A.  Legislative  Control  over  Private  Corporations,  636. 

2.  Insurance  Companies,  636. 

3.  Reorganization  of  Corporations,  637. 

5.  Exemption  from  Governmental  Control,  637. 
7.  Control  of  Water  Companies,  637. 

B.  Legislative  Control  over  Municipal  Corporations,  637. 

1.  In  General,  637. 

4.  Power  with  Respect  to  Division  of  Towns  and  Alteration  of  Bound- 

aries, 637. 

c.  As  Affecting  Rights  of  Citizens  and  Taxpayers,  637. 

5.  Municipal  Debts,  637. 

d.  Limiting  Taxing  Power  of  ^lunicipalities,  637. 

(1)  In  General,  637. 

(2)  Withdrawal  of    Right  to  Tax  to    Discharge    Municipal 
Securities,  638. 

e.  Change  in  Subjects  of  Taxation,  638. 

VII.  Remedies,  638. 

B.  Limitations  of  General  Rule,  638. 
K.  Statutory  Liabilities,  639. 

2.  Liability  of  Stockholders,  639. 

a.  In  General,  639. 

CROSS  REFERENCES. 

See  the  title  Impairment  of  Obligation  of  Contracts,  vol.  6,  p.  758,  and 
references  there  given. 

In  addition,  see  ante,  Constitutional  Law,  p.  264;  Corporations,  p.  381; 
Due  Process  of  Law,  p.  475;  post,  Interstate  and  Foreign  Commerce;  Po- 
lice Power;  Taxation. 

As  to  federal  questions  and  practice  on  appeal,  see  ante,  Appeal  and  Error,  p. 
34;  Courts,  p.  398.  As  to  regulation  of  rules,  see  ante,  Carriers,  p.  216;  post, 
Police  Power.  As  to  the  power  of  congress,  under  the  interstate  commerce 
clause,  to  enact  regulations  which  will  prevent  the  carrying  out  of  existing  con- 
tracts, and  to  prohibit  the  making  of  contracts  which  operate  to  waive  or  modify 
statutes  regulating  interstate  commerce,  see  post.  Interstate  and  Foreign  Com- 
merce. As  to  vested  rights,  see  ante.  Constitutional  Law,  p.  264.  As  to  the 
regulation  of  business,  trade,  occupation  or  professions,  see  ante,  Constitu- 
tional Law^  p.  264 ;  post.  Police  Power. 

12  U  S  Enc— 40  625 


766-769 


IMPAIRMENT,  ETC.,  OF  CONTRACTS. 


Vol.  VI. 


I.  General  Consideration. 

C.  Definitions  and  Distinctions — 3.  What  Is  the  "Obligation  of  a  Con- 
tract"— a.  "Obligation"  Defined. — See  note  13. 

b.  Laws  Affecting  Validity,  Construction,  Discharge  and  Enforcement. — See 
note  15. 

G.  The  Rule  That  There  Must  Be  a  Valid  Contract.— See  note  24. 


766-13.  Obligation  defined — Laws  bind- 
ing parties  to  perform. — "It  is  to  the  laws, 
whether  part  of  the  common  law  or  found 
in  the  statutes  of  the  state,  that  we  look 
for  the  validity  and  extent  of  a  contract 
between  persons.  They  constitute  its  ob- 
ligation." Western  Union  Tel.  Co.  v. 
Commercial  Mill.  Co.,  218  U.  S.  406,  54  L. 
Ed.  1086,  31  S.  Ct.  59. 

Existing  laws  as  entering  into  obliga- 
tion of  contract — Ordinance  of  1787. — See 
post,  "Exercise  of  Eminent  Domain," 
IV,  D. 

766-15.  Means  of  enforcement. — The 
obligation  of  a  contract,  in  the  constitu- 
tional sense,  is  the  means  provided  by  law 
by  which  it  can  be  enforced,  by  which  the 
parlies  can  be  obliged  to  perform  it. 
Whatever  legislation  lessens  the  efificacy 
of  these  means  impairs  the  obligation.  If 
it  tend  to  postpone  or  retard  the  enforce- 
ment of  the  contract,  the  obligation  of  the 
latter  is,  to  that  extent,  weakened.  Hu- 
bert V.  New  Orleans,  215  U.  S.  170,  54  L. 
Ed.  144.  30  vS.  Ct.  40. 

769-24.  No  impairment  in  absence  cf 
valid  contract. — Griffith  v.  Connecticut, 
218  U.  S.  563.  54  L.  Ed.  1151,  31  S.  Ct.  132; 
S.  C,  218  U.  S.  572,  54  L.  Ed.  1155,  31  S. 
Ct.  134. 

Illegal  contracts. — The  contract  clause 
of  the  constitution  of  the  United  States 
does  not  give  validity  to  contracts  which 
are  properly  prohibited  by  statute.  Grif- 
fith v.  Connecticut,  218  U.  S.  563,  54  L.  Ed. 
1151.  31  S.  Ct.  132;  S.  C,  218  U.  S.  572.  54 
L.  Ed.  1155,  31  S.  Ct.  134,  affirming  judg- 
ment State  v.  Griffith,  83  Conn.  1,  74  A. 
1068. 

Forbidding  the  enforcement  of  con- 
tracts made  in  violation  of  Conn.  Pub. 
Acts  1907,  c.  238,  prohibiting  the  exacting 
of  more  than  15  per  cent  interest  on  loans, 
or  accepting  a  note  for  a  greater  amount 
than  that  actually  loaned,  with  intent  to 
evade  this  provision,  is  not  invalid  as  the 
contract  clause  of  the  constitution  docs 
not  protect  contracts  which  are  prop- 
erly prohibited.  Griffith  v.  Connecticut, 
218  U.  S.  563,  54  L.  Ed.  1151,  31  S.  Ct.  132; 
S.  C,  218  U.  S.  572,  54  L.  Ed.  1155,  31  S. 
Ct.  134.  Affirming  judgment.  State  v. 
Griffith,  74  A.  1068,  83  Conn.  1. 

Matters  to  which  contract  does  not  ex- 
tend.— Where  all  the  questions,  rights,  du- 
ties and  liabilities  arising  or  likely  to  arise 
out  of  the  transaction  are  not  determined 
and  provided  for  by  the  contract,  the  state 
may,  as  to  the  matters  not  embraced  by 


the  contract,  exercise  its  power  of  control, 
the  subject  being  one  afifected  wiih  a  pub- 
lic interest  and  within  the  police  power 
of  the  state.  Grand  Trunk,  etc.,  R.  Co.  v. 
Railroad  Comm.,  221  U.  S.  400,  55  L.  Ed. 
786,  31  S.  Ct.  537. 

A  contract  between  two  intersecting 
railway  companies,  imposing  upon  the 
junior  road  the  duty  of  construction  and 
properly  maintaining  the  physical  cross- 
ing of  the  two  roads,  and  providing  and 
maintaining  semaphores  or  signals,  and 
requisite  watchman  to  take  charge  of  and 
operate  the  same,  is  not  unconstitution- 
ally impaired  by  a  subsequent  order  of  the 
state  railroad  commission,  directing  the 
installation  and  use  of  an  interlocking 
plant  at  such  crossing,  and  apportioning 
between  the  two  companies  the  expense 
of  executing  the  order,  since  the  expense 
of  executing  the  order  was  a  matter  not 
contemplated  nor  provided  for  by  the  con- 
tract. Grand  Trunk,  etc.,  R.  Co.  v.  Rail- 
road Comm..  221  U.  S.  400,  55  L.  Ed.  786, 
31  S.  Ct.  537,  affirming  judgment  (1907> 
Same  v.  Hunt,  40  Ind.  App.  168,  81  N.  E. 
524. 

Determination  of  existence  of  contract 
— Construction — Federal  questions. — Since 
the  question  of  impairment  of  the  obliga- 
tion of  a  contract  depends  first  upon  the 
existence  of  a  valid  contract,  and  second 
upon  the  proper  construction  of  such  con- 
tract, the  federal  supreme  court  will,  in 
order  to  determine  whether  the  alleged 
impairment  has  taken  place,  determine 
these  questions  for  itself.  Arkansas,  etc., 
R.  Co.  V.  Louisiana,  etc.,  R.  Co.,  218  U.  S. 
431.  54  L.  Ed.  1097,  31  S.  Ct.  56;  Perry  Co. 
V.  Norfolk,  220  U.  S.  472,  55  L.  Ed.  548,  31 
S.  Ct.  465.  See,  also,  post,  "In  General,"' 
II.  F,  1;  "Pre-Existing  Statutes  Unobjec- 
tionable," II.  J. 

The  question  whether  a  contract  exists 
or  whether  rights  under  the  contract  have 
been  acquired  or  have  become  vested  be- 
fore the  statutory  or  constitutional  provi- 
sion allege  to  impair  the  same  has  been 
enacted,  is  a  federal  question,  upon  which 
the  federal  supreme  court,  upon  writ  of 
error  to  a  slate  court,  must  satisfy  itself. 
Arkansas,  etc.,  R.  Co.  v.  Louisiana,  etc.,  R. 
Co.,  218  U.  S.  431,  54  L.  Ed.  1097,  31  S. 
Ct.  56. 

A  valid  contract  of  exemption  from  tax- 
ation may  be  impaired  by  wrongful  con- 
struction as  well  as  by  an  unconstitutional 
statute  attempting  a  direct  repeal.  The 
federal     supreme     court,     therefore,     "has- 


636 


Vol.  VI. 


IMPAIRMENT,  ETC.,   OF  CONTRACTS. 


773-781 


II.  What  Laws  Impair  the  Obligation  of  Contracts. 

D.  Laws  of  Congress. — As  to  whether  individuals,  by  entering  into  contract 
with  reference  to  matters  which  came  within  the  express  power  of  congress  to 
control,  can  impose  limitations  upon  the  powers  of  congress  to  the  extent  of  with- 
drawing such  contracts  and  the  rights  arising  thereunder  from  the  regulatory 
powers  of  congress,  see  post.  Interstate  and  Foreign  Commerce;  Poi^ice 
Power.     See,  also,  post,  "In  General,"  IV,  A;  "Police  Power,"  IV,  B. 

F.  Judicial  Decisions — 1.  In  Generai,. — See  note  44. 

G.  By-Laws  and  Ordinances. — See  note  58. 

J.  Pre-Existing  Statutes  Unobjectionable. — See  note  72. 


power,  in  order  to  determine  whether  any 
contract  has  been  impaired,  to  decide  for 
itself  what  the  true  construction  of  the 
contract  is."  Perry  Co.  v.  Norfolk,  220  U. 
S.  472,  55  L.  Ed.  548,  31  S.  Ct.  465;  Hunt- 
ington V.  Attrill,  146  U.  S.  657,  36  L.  Ed. 
1133,  13  S.  Ct.  224;  Bryan  v.  Board,  151  U. 
S.  639,  38  L.  Ed.  297,  14  S.  Ct.  465;  Mobile, 
etc.,  R.  Co.  V.  Tennessee,  153  U.  S.  486,  495, 
38  L.  Ed.  793,  14  S.  Ct.  968;  Jeflferson 
Branch  Bank  v.  Skelly,  1  Black  436,  446, 
17  L.  Ed.  173. 

Where  a  perpetual  leaseholder  entitled 
to  the  use  of  the  property  forever  claims 
a  contract  exemption  with  the  state  or 
city  as  to  certain  taxes,  and  the  claim  is 
made  that  the  obligation  of  such  contract 
is  impaired  by  the  action  of  the  state  or 
city  in  attempting  to  subject  the  property 
to  taxation  in  violation  of  the  terms  of 
the  contract,  a  federal  question  arises,  and 
the  federal  supreme  court  will  examine 
the  contract  for  itself  in  order  to  deter- 
mine whether  the  taxes  in  question  are 
embraced  within  the  exemption  claimed 
under  the  contract.  Perry  Co.  v.  Norfolk, 
220  U.   S.  472,  55  L.   Ed.  548,  31   S.  Ct.  465. 

A  decree  of  a  state  court  adverse  to  the 
contention  that,  if  the  state  constitution 
confers  on  one  railway  company  an  ex- 
emption from  a  special  tax  granted  in  aid 
of  another  railway  company,  it  impairs 
contract  obligations,  is  reviewable  in  the 
federal  supreme  court,  although  the  state 
court  rested  its  decision  in  part  upon  the 
ground  that  the  latter  railway  company  had 
not  acquired  all  of  its  contract  rights  be- 
fore the  adoption  of  the  constitution.  Ar- 
kansas, etc.,  R.  Co.  V.  Louisiana,  etc.,  R. 
Co.,  218  U.  S.  431,  54  L.  Ed.  1097,  31  S. 
Ct.  56. 

On  the  other  hand,  where  it  is  alleged 
that  certain  constitutional  and  statutory 
provisions  granting  an  exemption  from 
taxation  operates  to  impair  the  obligation 
of  plaintiff's  contract  right  to  special  taxes 
voted  in  aid  of  a  proposed  railway,  the 
question  whether  or  not  such  constitu- 
tional and  statutory  provisions  really  cre- 
ate the  alleged  exemption  is  a  local  ques- 
tion to  be  finally  determined  by  the  state 
court  and  will  not  be  reviewed  in  the 
federal  supreme  court.  Arkansas,  etc.,  R. 
Co.  V.  Louisiana,  etc.,  R.  Co.,  218  U.  S.  431, 
54  L.  Ed.  1097,  31  S.  Ct.  56. 


773-44.  No  impairment  by  judicial  deci- 
sions— Mere     error     not     sufficient. — See 

post,  "Pre-Existing  Statutes  Unobjection- 
able," n,  J. 

Error  as  to  existence  of  valid  contract 
— Erroneous  construction — Federal  ques- 
tions.— See  ante,  "The  Rule  That  There 
Must  Be  a  Valid  Contract,"  I,  G. 

778-58.  By  laws  and  ordinances. — It  is 
no  longer  open  to  question  that  municipal 
legislation  passed  under  supposed  legis- 
lative authority  from  the  state  is  within 
the  prohibition  of  the  federal  constitution 
and  void  if  it  impairs  the  obligation^  of 
contracts.  Northern  Pac.  R.  Co.  v.  Du- 
luth,  208  U.  S.  583,  52  L.  Ed.  630,  28  S.  Ct. 
341;  Mercantile  Trust,  etc.,  Co.  v.  Colum- 
bus, 203  U.  S.  311,  320,  51  L.  Ed.  198,  27  S. 
Ct.  83,  and  cases  there  cited. 

781-72.  Not  the  terms  of  the  law  but  its 
effect — Decisions  giving  no  effect  to  sub- 
sequent law. — In  order  to  review  in  the 
federal  supreme  court  the  judgment  of  a 
state  court  because  of  the  provision  of  the 
federal  constitution  against  state  legisla- 
tion impairing  the  obligation  of  a  contract, 
the  impairment  must  be  by  some  subse- 
quent legislation  of  the  state,  which  has 
been  upheld  or  given  eflfect  in  the  judg- 
ment of  the  state  court  sought  to  be 
reviewed.  Hubert  v.  New  Orleans.  215  U. 
S.  170,  54  L.  Ed.  144,  30  S.  Ct.  40;  Bacon  v. 
Texas,  163  U.  S.  207,  41  L.  Ed.  132,  16  S. 
Ct.  1023. 

Only  when  a  judgment  of  a  state  court 
gives  effect  to  subsequent  legislation  can 
the  federal  supreme  court  review,  as  pre- 
senting a  question  of  the  impairment  of 
contract  obligations,  its  decision  holding 
invalid,  under  the  state  constitution,  a 
state  law  which  is  alleged  to  constitute 
a  contract.  Mobile,  etc.,  R.  Co.  v.  Missis- 
sippi, 210  U.  S.  187,  52  L.  Ed.  1016,  28  S. 
Ct.  650. 

As  was  said  l)y  Mr.  Justice  Gray  in 
Nev/  Orleans  Waterworks  Co.  v.  Louisi- 
ana Sugar  Refin.  Co.,  125  U.  S.  18,  39.  31 
L.  Ed.  607,  8  S.  Ct.  741:  "But  when  the 
state  court  gives  no  effect  to  the  subse- 
quent law,  but  decides,  on  grounds  inde- 
pendent of  that  law,  that  the  right  claimed 
was  not  conferred  by  the  contract,  the 
case  stands  just  as  if  the  subsequent  law 
had  not  been  passed,   and  this   court  has 


627 


781 


IMPAIRMENT,   ETC.,    OF   CONTRACTS. 


Vol.  VI. 


no  jurisdiction.''  Missouri,  etc.,  R.  Co.  v. 
Olathe,  222  U.  S.  187,  56  L-  Ed.  156,  32  S. 
Ct.  47. 

Mere  errors  committed  by  a  state  court 
when  passing  upon  the  validit}^  and  effect 
of  a  contract  under  the  laws  in  existence 
when  it  was  made  can  not  give  rise  to  a 
question  of  the  impairment  of  contract 
obligations,  reviewable  in  the  federal  su- 
preme court  by  writ  of  error,  where  no 
effect  has  been  given  to  any  subsequent 
legislation,  even  though  the  rulings  are 
not  in  accord  with  prior  decisions,  on  the 
faith  of  which  the  rights  in  question  were 
acquired.  Cross  Lake,  etc.,  Club  v.  Louisi- 
ana, 224  U.  S.  632,  56  L-  Ed.  924,  32  S.  Ct. 
577. 

"No  state  shall  *  *  *  pass  any 
*  *  *  law  impairing  the  obligation  of 
contracts."  This  clause,  as  its  terms  dis- 
close, is  not  directed  against  all  impair- 
ment of  contract  obligations,  but  only 
against  such  as  results  from  a  subsequent 
exertion  of  the  legislative  power  of  the 
state.  It  does  not  reach  mere  errors 
committed  by  a  state  court  when  passing 
upon  the  validity  or  effect  of  a  contract 
under  the  laws  in  existence  when  it  was 
made.  And  so.  while  such  errors  may  op- 
erate to  impair  the  obligation  of  the  con- 
tract, they  do  not  give  rise  to  a  federal 
question.  Cross  Lake,  etc..  Club  z'.  Lou- 
isiana, 224  U.  S.  632,  56  L.  Ed.  924,  32 
S.    Ct.    577. 

But  "when  the  state  court,  either  ex- 
pressly or  by  necessary  implication,  gives 
effect  to  a  subsequent  law  of  the  state 
whereby  the  obligation  of  the  contract  is 
alleged  to  be  impaired,  a  federal  question 
is  presented.  In  such  a  case  it  becomes 
our  duty  to  take  jurisdiction  and  to  de- 
termine the  existence  and  validity  of  the 
contract,  what  obligations  arose  from  it, 
and  whether  they  are  impaired  by  the 
subsequent  law.  But  if  there  be  no  such 
law,  or  if  no  effect  be  given  to  it  by  the 
state  court,  we  can  not  take  jurisdiction,  no 
matter  how  earnestly  it  may  be  insisted 
that  that  court  erred  in  its  conclusion  re- 
specting the  validity  or  effect  of  the  con- 
tract; and  this  is  true  even  where  it  is 
asserted,  as  it  is  here,  that  the  judgment 
is  not  in  accord  with  prior  decisions  on 
the  faith  of  which  the  rights  in  question 
were  acquired."  Cross  Lake,  etc..  Club 
V.  Louisiana,  224  U.  S.  632,  56  L.  Ed.  924, 
32  S.  Ct.  577;  Knox  v.  Exchange  Bank. 
12  Wall.  379,  383,  20  L.  Ed.  414;  Central 
Land  Co.  t'.  Laidley,  159  U.  S.  103.  112, 
40  L.  Ed.  91,  16  S.  Ct.  80;  Bacon  v.  Texas, 
163  U.  S.  207,  221,  41  L.  Ed.  132,  16  S.  Ct. 
1023;  Turner  v.  Wilkes  County  Comm'rs, 
173  U.  S.  461,  43  L.  Ed.  768,  19  S.  Ct.  464; 
National  Mut.  Bldg..  etc.,  Ass'n  c'.  Bra- 
han,  193  U.  S.  635,  647,  48  L.  Ed.  823,  24 
S.  Ct.  532;  Hubert  v.  New  Orleans,  215 
U.  S.  170,  175,  54  L.  Ed.  144,  30  S.  Ct.  40; 
Fisher  z-.  New  Orleans,  218  U.  S.  438,  54 
L.   Ed.   1099,  31   S.   Ct.   57;    Missouri,   etc., 


R.  Co.  V.  Olathe,  222  U.  S.  187,  56  L.  Ed. 
156,  32   S.   Ct.   47. 

But  it  is  said  that  the  federal  supreme 
court  is  not  limited  to  the  mere  language 
of  the  opinion  of  the  state  court,  but  will 
consider  the  substance  and  effect  of  the 
judgment,  McCullough  v.  Virginia,  172 
U.  S.  102,  117,  43  L.  Ed.  382,  19  S.  Ct. 
134;  Hubert  v.  New  Orleans,  215  U.  S. 
170,  175,  54  L.  Ed.  144,  30  S.  Ct.  40,  and 
that  the  federal  supreme  court  will  de- 
cide for  itself,  with  due  respect  for  the 
state  decision,  whether  a  contract  has 
been  and  what  it  was  (Sullivan  v.  Texas. 
207  U.  S.  416,  423,  52  L.  Ed.  274,  28  S.  Ct. 
215).  Both  of  these  statements  are  true, 
of  course,  and  relevant  when  the  judg- 
ment really  gives  effect  to  a  later  act  oi 
the  state  that  would  impair  the  obligation 
of  the  contract  if  the  contract  were  as  al- 
leged. But  the  mere  allegation  of  a  later 
constitution  or  statute  impairing  the  ob- 
ligation of  the  contract  gives  no  jurisdic- 
tion to  the  federal  supreme  court  to  see 
that  the  contract  is  enforced  according  to 
its  tenor,  irrespective  of  the  supposed  in- 
terference of  the  later  law.  The  jurisdic- 
tion extends  to  doing  away  with  such  an 
interference,  but  not  to  remedying  an 
erroneous  construction  of  contracts,  or 
to  seeing  that  they  are  carried  out  accord- 
ing to  the  interpretation  of  the  federal 
supreme  court,  apart  from  it.  Bacon  v. 
Texas,  163  U.  S.  207,  219,  41  L.  Ed.  132, 
16  S.  Ct.  1023;  New  Orleans  Waterworks 
Co.  V.  Louisiana,  185  U.  S.  336,  352,  46  L. 
Ed.  936,  22  S.  Ct.  691;  Weber  v.  Rogan, 
188  U.  S.  10,  14,  47  L.  Ed.  363,  23  S.  Ct. 
263;  Central  Land  Co.  v.  Laidley,  159  U. 
S.  103,  110,  40  L.  Ed.  91,  16  S.  Ct.  80; 
Fisher  v.  New  Orleans,  218  U.  S.  438, 
54   L.   Ed.   1099,  31  S.  Ct.   57. 

A  decree  of  a  state  court  avoiding  a 
conveyance  by  the  board  of  commission- 
ers of  the  Caddo  levee  district  under  the 
supposed  authority  of  La.  Acts  1892,  No. 
74,  §  9,  on  the  ground  that  under  that 
section,  properly  construed,  the  board 
had  no  authority  to  sell  until  a  proper 
instrument  conveying  the  land  to  the 
board  had  been  duly  executed  by  the 
proper  state  officers,  does  not  give  effect 
to  acts  1902,  No.  171,  repealing  the  earlier 
act,  so  as  to  present  a  question  of  the  im- 
pairment of  contract  obligations,  review- 
able in  the  federal  supreme  court  by  writ 
of  error.  Cross  Lake,  etc..  Club  v.  Lou- 
isiana, 224  U.  S.  632,  56  L.  Ed.  924,  33 
S.   Ct.  577. 

The  contention  that  an  attempt  in  the 
state  constitution  to  limit  taxation  im- 
pairs the  obligation  of  contracts  with  a 
municipal  school  board  does  not  present 
a  case  for  a  writ  of  error  from  the  fed- 
eral supreme  court  to  review  a  decree  of  a 
state  court  which  refused  mandamus  to 
compel  the  levy  of  a  tax  to  pay  claims  and 
judgments  based  upon  such  contracts, 
which   rests   mainly   on   the    grounds   that 


628 


Vol.  \1. 


IMPAIRMENT,^  ETC.,   OF  CONTRACTS. 


782-784 


M.  Orders  of  Administrative  Bodies,  Railroad  and  Corporation  Com- 
missions, etc. — The  order  of  a  state  railroad  conTmission  is  a  legislative  act  by 
an  instrumentality  of  the  state  exercising  delegated  authority,  and  is  of  the  same 
force  as  if  made  by  the  legislature,  and  so  is  a  law  of  the  state  within  the  mean- 
ing of  the  contract  clause  of  the  constitution."*'^ 

III.  Contracts  within  Purview  of  Prohibition. 

D.    Contracts  of  States— 1.    In  General,.— See  note  87. 
2.  Violation  of  Contracts  by  the  State. — See  note  91. 


the  relators  were  guilty  of  laches,  and 
that  the  statute  relied  upon  as  authoriz- 
ing such  contracts  did  not  empower  the 
school  board  to  make  contracts  in  such 
wise  as  to  bind  the  municipality  to  levy 
the  tax,  neither  the  constitution  nor  any 
subsequent  legislation  having  been  in- 
voked or  enforced  by  the  court.  Fisher 
V.  New  Orleans,  218  U.  S.  438,  54  L.  Ed. 
1099,   31   S.    Ct.    57. 

The  main  grounds  upon  which  the  su- 
preme court  of  the  state  decided  the  case 
were  that  the  relators  had  been  guilty  of 
laches,  and  that  the  Act  of  1873  did  not 
authorize  contracts  to  be  made  by  the 
school  board  in  such  wise  as  to  bind  the 
city  to  levy  the  tax.  The  court  did  not 
purport  to  rely  upon  the  constitution  of 
1898,  or  any  subsequent  legislation,  for 
the  result.  It  did  not  purport  to  enforce 
any  later  law;  it  simply  denied  the  exist- 
ence of  the  right  alleged.  Therefore,  on 
the  face  of  the  decision,  there  is  no  war- 
rant for  coming  here.  Fisher  v.  New  Or- 
leans, 218  U.  S.  438,  54  L.  Ed.  1099,  31  S. 
Ct.  57. 

A  decision  of  the  highest  court  of  a 
state,  enforcing  the  payment  by  a  street 
railway  company  to  a  municipality  of  the 
sum  contracted  to  be  paid  when  the  road 
should  be  completed,  is  not  reviewable 
in  the  federal  supreme  court,  as  giving 
effect  to  a  resolution  of  the  common 
council  which  the  company  asserts  im- 
paired its  contract  right  to  construct  a 
certain  turn-out,  where  the  court  placed 
its  decision  distinctly  upon  the  ground 
that,  without  regard  to  that  resolution  or 
to  the  question  of  the  right  of  the  com- 
pany to  construct  the  turn-out,  the  money 
was  payable  because  the  road  had  been 
substantially  completed.  Missouri,  etc., 
R.  Co.  z:  Olathe,  222  U.  S.  187,  56  L.  Ed. 
156,  32  S.  Ct.  47. 

Federal  court  takes  statute  as  con- 
strued by  state  court. — A  question  of  im- 
pairment of  obligation  is  presented  where 
the  state  court  simply  holds  that  the 
statute  relied  on  as  creating  the  contract 
is  unconstitutional  under  the  provisions 
of  the  state  constitution.  Mobile,  etc.,  R. 
Co.  V.  Mississippi,  210  U.  S.  187,  52  L. 
Ed.   1016,  28   S.   Ct.  650. 

The  construction  given  by  a  state  court 


to  the  immunity  of  railway  companies 
from  taxation,  granted  by  the  state  con- 
stitution, as  extending  to  a  special  tax  in 
aid  of  another  railway  company,  is  con- 
clusive on  the  federal  supreme  court  in 
determining,  on  writ  of  error  to  the  state 
court,  whether  such  constitutional  pro- 
vision impairs  contract  obligations.  Ar- 
kansas, etc.,  R.  Co.  V.  Louisiana,  etc.,  R. 
Co..  218  U.  S.  431,  54  L.  Ed.  1097,  31  S. 
Ct.    56. 

782-76a.  Orders  of  administrative  bod- 
ies, railroad  and  corporation  commissions, 
etc. — Grand  Trunk,  etc.,  R.  Co.  v.  Rail- 
road Comm.,  221  U.  S.  400,  55  L.  Ed.  786, 
31  S.  Ct.  537,  citing  Prentis  v.  Atlantic 
Coast  Line  Co.,  211  U.  S.  210,  226,  53 
L.  Ed.  150,  29  S.  Ct.  67;  New  Orleans 
Waterworks  Co.  zl  Louisiana  Sugar  Re- 
fin.  Co.,  125  U.  S.  18.  31  L.  Ed.  607,  8 
S.  Ct.  741;  St.  Paul  Gas,  etc.,  Co.  v.  St. 
Paul,  181  U.  S.  142,  148,  45  L.  Ed.  788.  21 
S.  Ct.  575;  Northern  Pac.  R.  Co.  v.  Du- 
luth,  208  U.  S.  583,  590,  52  L.  Ed.  630,  28 
S.   Ct.  341. 

784-87.  Right  of  state  to  enter  into 
contracts. — The  prohibition  of  the  con- 
stitution against  the  passage  of  laws  im- 
pairing the  obligation  of  contracts  ap- 
plies to  the  contracts  of  the  state  and  to 
those  of  its  agents  acting  under  its  au- 
thority, as  well  as  to  contracts  between 
individuals.  Hubert  z:  New  Orleans,  215 
U.   S.   170.   54   L.   Ed.   144,   30   S.   Ct.   40. 

Power  to  bargain  or  surrender  govern- 
mental powers. — See  post.  "Right  to  Con- 
tract Awav  Its  Legislative  Powers." 
III.  J,  3;  "In  General,"  IV,  A;  "Police 
Power,"  IV,  B.  See,  also,  post,  POLICE 
POWER. 

784-91.  Violation  and  impairment  dis- 
tinguished.— There  is  a  distinction  be- 
tween impairment  of  obligation  of  a  con- 
tract and  the  mere  breach  of  a  contract, 
the  latter  is  neither  the  confiscation  of 
property  nor  a  taking  of  property  with 
out  due  process  of  law.  The  latter,  does 
not  present  a  federal  question,  the  rem- 
edy being  in  the  state  courts  by  an  ac- 
tion to  enforce  the  contract  to  recover 
damages  upon  its  breach.  Shawnee,  etc.. 
Drainage  Co.  v.  Stearns,  220  U.  S.  462, 
55   L.   Ed.   544,  31   S.  Ct.   452. 


629 


792-804 


IMPAIRMENT,  ETC.,   OF  CONTRACTS. 


Vol.  VI. 


7.  Land  Grants — b.  Statutes  Prescribing  the  Mode  or  Form  of  Settling  Ti- 
tles.— See  note  21. 

c.  Statutes  Annulling  Grants. — For  Nonpayment  of  Taxes,  Failure  to 
List  for  Taxation,  etc. — See  post,  "Compacts,"  III,  F. 

11.  Grants  of  ExcIvUSive  Privilege;s — a.  In  General. — See  ante,  Constitu- 
TiONAi,  Law,  p.  264;  Due  Process  of  Law,  p.  475.  See,  also,  post,  "Grants  of 
Exclusive  Privileges,"  III,  D,  11 ;  "Ordinances  Granting  Privileges  to  Public 
Service  Companies,"  III,  J,  6. 

g.  Grant  of  Franchise  or  Privilege  to  TelepJwne  and  Telegraph  Companies. — A 
telephone  company  can  claim  no  contract  right  protected  by  the  federal  constitu- 
tion as  against  regulations  and  restrictions  passed  pursuant  to  the  authority  of 
statutes  which  were  in  force  at  the  time  of  the  granting  of  such  franchise  or  priv- 
ilege, and  which  expressly  provided  that  such  franchise  should  be  held  subject  to 
the  reserved  power  to  impose  conditions  and  restrictions. •''^'^ 


792-21.  Statutes  pi  escribing  mode  of 
settling   titles — Survey  of   Mexican   grant, 

— The  substantial  elements  of  a  contract 
between  the  claimant  under  a  Mexican 
land  grant  by  metes  and  bounds  and  the 
state  which  is  alleged  to  arise  out  of  Act 
Tex.  Feb.  10,  1852,  confirming  such  grant 
and  imposing  upon  the  claimant  the  duty 
of  having  the  land  surveyed  by  the  dis- 
trict or  county  surveyor  of  the  county  in 
which  it  is  situated,  and  of  returning  the 
field  notes  to  the  land  office,  which  is 
then  required  to  issue  a  patent,  are  so 
far  lacking  as  to  defeat  the  contention 
that  contract  obligations  are  unconstitu- 
tionally impaired  by  the  subsequent  Act 
Sept.  3,  1901  (Ex.  Sess.),  p.  6,  c.  4,  §  11, 
under  which  the  state  has  recovered  from 
such  claimant  a  portion  of  the  land  which, 
though  called  for  by  the  survey,  is  out- 
side the  boundaries  of  the  original  Mex- 
ican grant.  Judgment  (Tex.  Civ.  App. 
1906)  95  S.  W.  645,  affirmed.  Sullivan  v. 
Texas,  207  U.  S.  416,  52  L.  Ed.  274,  28 
S.   Ct.  215. 

804-69a.  Franchises  and  privileges  of 
telephone  and  telegraph  companies. — 
Pomona  v.  Sunset  Tel.,  etc.,  Co.,  224  U. 
S.   330,   56   L.   Ed.   788,   32   S.    Ct.   477. 

Same — Grant  subject  to  power  of  mu- 
nicipality to  regulate  and  control. — No 
grant  to  a  telephone  company  of  the  right  to 
occupy  the  streets  of  a  city  without  its  con- 
sent, which  will  be  protected  by  the  con- 
tract clause  of  the  federal  constitution, 
can  be  deduced  from  the  amendment  of 
October  10,  1911,  to  Cal.  Const,  art.  11, 
§  19,  under  which  persons  or  corpora- 
tions may  establish  and  operate  works 
for  supplying  the  inhabitants  of  a  munic- 
ipality with  telephone  service  "upon  such 
conditions  and  under  such  regulations  as 
the  municipality  may  prescribe  under  its 
organic  law,  on  condition  that  the  mu- 
nicipal government  shall  have  the  right 
to  regulate  the  charges."  Pomona  v. 
Sunset  Tel.,  etc.,  Co.,  224  U.  S.  330,  56  E. 
Ed.  788,  32   S.   Ct.  477. 

A  telephone  company  can  claim  no 
contract    right    under    the    amendment    of 


March  20,  1905,  to  Cal.  Civ.  Code,  §  536, 
to  occupy  the  streets  of  a  city  for  local 
business  without  the  city's  consent,  in 
view  of  the  passage,  before  the  date  when 
such  amendment  by  its  terms  was  to  go 
into  effect,  of  the  Franchise  Act  of  March 
22,  1905,  taking  effect  immediately,  and 
providing  that  every  franchise  to  erect  or 
lay  telephone  wires,  except  "telephone 
lines  doing  an  interstate  business,"  shall 
be  granted  upon  the  conditions  named 
in  such  act,  which  leaves  franchise  grants 
general  to  the  local  subdivisions  con- 
cerned, and  contains  a  general  repealing 
clause  naming  certain  exceptions,  of 
which  §  536  is  not  one.  Pomona  v.  Sun- 
set Tel.,  etc.,  Co.,  224  U.  S.  330,  56  E. 
Ed.  788.   32   S.   Ct.   477. 

Same — Exception  in  favor  of  company 
doing  interstate  business. — A  contract 
right  to  maintain  only  through  interstate 
telephone  wires  in  the  city  streets,  and 
to  maintain  the  poles  and  wires  connect- 
ing local  subscribers,  is  all  that  can  be 
gathered  from  the  exceptions  in  favor  of 
"telephone  lines  doing  interstate  busi- 
ness," made  by  Cal.  Act  of  March  22, 
1905,  which  repealed,  before  it  took  ef- 
fect, the  Act  of  March  20,  1905,  amending 
Cal.  Civ.  Code,  §  536,  so  as  to  include 
telephone  companies  among  the  corpora- 
tions which  could  occupy  the  city  streets 
without  municipal  consent.  Pomona  v. 
Sunset  Tel.,  etc.,  Co.,  224  U.  S.  330,  56 
E.   Ed.  788,  32   S.   Ct.  477. 

The  appellee,  a  California  corporation, 
brought  its  bill  to  restrain  the  city  of 
Pomona  from  removing  appellee's  poles 
and  wires  from  the  streets  of  the  city 
and  from  preventing  the  appellee's  plac- 
ing further  poles  and  wires  in  the  streets. 
The  ground  is  that  the  constitution  of 
California,  as  amended  in  1911,  or  the 
statute  of  the  state,  contained  a  grant 
with  which  the  constitution  of  the  United 
States  does  not  permit  the  city  to  inter- 
fere. The  amendment  provides  "persons 
or  corporations  may  establish  and  operate 
works  for  supplying  the  inhabitants  with 
telephone     and    telegraph     service     upon 


630 


Vol.  VI. 


IMPAIRMENT,  ETC.,   OF  CONTRACTS. 


805-808 


12.  Power  of  State  to  Impair  Contracts  through  Its  Taxing  Power— a. 
In  General— \s  to  impairment  of  obligation  by  subsequent  restrictions  upon 
power  of  taxation,  change  in  subjects  of  taxation,  etc.,  see  post,  "Municipal  Aid 
Contracts,"  III,  J,  5,  a;  "Limiting  Taxing  Power  of  Municipalities,"  VI,  B,  5, 
d;  "Change  in  Subjects  of  Taxation,"  VI,  B,  5,  e.  As  to  violation  of  compact 
between  states  through  the  operation  of  a  statute  forfeiting  land  titles  for  fail- 
ure to  list  for  taxation,  see  post,  "Compacts,"  III,  F. 

c.  Inheritance  Taxes. — See  note  ??>. 

F.    Compacts. — See  note  87. 


such  conditions  and  under  such  regula- 
tions as  the  municipality  may  prescribe 
under  its  organic  law,  on  condition  that 
the  municipal  government  shall  have  the 
right  to  regulate  the  charges  therefor." 
The  words  "upon  such  conditions"  are 
not  confined  to  police  powers,  but  are  of 
general  import.  The  powers  of  the  mu- 
nicipal corporation  to  impose  conditions 
excludes  the  notion  that  the  constitution 
alone  is  a  grant  to  others  of  a  right  to 
occupy  the  streets  without  its  consent. 
As  to  the  claim  founded  upon  the  stat- 
utes, §  536,  Civil  Code,  pennits  telegraph 
corporations  to  construct  lines  in  high- 
ways and  public  roads,  and  by  Act  of 
March  20,  1905,  it  was  amended  to  in- 
clude telephone  corporations.  Two  days 
later  a  franchise  act  was  passed  to  take 
effect  immediately,  providing  that:  "every 
franchise  or  privilege  to  erect  or  lay  tel- 
egraph or  telephone  wires,  etc.,  except 
telegraph  or  telephone  lines  doing  an  in- 
terstate business,  should  be  granted  upon 
the  conditions  specified  in  the  act,  and 
not  otherwise."  "We  construe  the  words 
quoted  as  of  general  application,  and  we 
must  take  §  536  to  have  been  repealed, 
subject  to  the  exception  contained  in  the 
later  act,  before  any  grant  or  right  under 
it  had  accrued  to  the  appellee."  As  to 
the  exception,  the  words  are  "except  tel- 
egraph on  telephone  lines  doing  an  inter- 
state business,"  and  the  appellee  must  be 
taken  to  have  a  grant  to  keep  its  main 
through  lines  in  the  streets  of  Pomona, 
but  not  to  maintain  the  posts  and  wires 
by  which  it  connects  with  subscribers. 
There  is  no  ground  for  the  bill.  Pomona 
V.  Sunset  Tel.,  etc.,  Co.,  224  U.  S.  330,  56 
L.    Ed.    788,    32    S.    Ct.    477. 

805-73.  Inheritance  taxes — Surviving 
wife's  interest  in  community. — See,  also, 
ante,  CONSTITUTIONAL  LAW,  p.  264. 

The  contention  that  the  state  has 
power,  so  far  as  the  constitution  of  the 
United  States  is  concerned,  to  select  and 
subject  to  an  inheritance  tax,  or  to  any 
tax,  the  wife's  interest  in  the  community 
property  upon  the  death  of  the  husband, 
and  the  question  whether  or  not  such 
property  is  within  the  state  law  imposing 
a  tax,  whether  it  is  called  an  inheritance 
tax  or  by  whatever  name  it  may  be  called, 
are  questions  solely  for  the  state  courts, 
and    their    final    decision    on    those    ques- 


tions, holding  that  such  interest  of  'the 
wife  is  within  the  law  and  subject  to  the 
tax,  does  not  operate  an  impairment  of 
the  obligation  of  any  contract  nor  deprive 
the  wife  of  her  property  without  due 
process  of  law.  Moffitt  v.  Kelly,  218  U 
S.  400,  54  L.   Ed.   1086,  31   S.  Ct.  79. 

There  is  no  merit  in  the  contention  that 
the  wife  is  deprived  of  her  property  with- 
out due  process  or  that  any  contractual 
obligation  is  impaired,  on  the  theory  that 
the  surviving  wife  takes  the  community 
estate,  not  as  an  heir  to  the  property  of 
which  the  husband  was  owner,  but  by  vir- 
tue of  her  own  right  of  ownership  vested 
in  her  prior  to  the  death  of  the  husband 
and  entitling  her  to  the  possession  and 
enjoyment  of  such  property  upon  his 
death.  Whatever  the  nature  of  this  right, 
it  was  a  property  right,  and  subject  to 
taxation  by  the  state,  and  whether  the 
state  law  imposing  a  tax,  whether  called 
an  inheritance  tax  or  not,  was  applicable 
thereto,  or  whether  the  state  court  have 
mistakenly  held  it  to  be  within  the  law  and 
subject  to  the  tax,  were  state  questions, 
and  no  question  under  the  due  process  or 
impairment  of  obligation  clauses  of  the 
federal  constitution  could  arise.  Moffit  v. 
Kelly,  218  U.  S.  400,  54  L.  Ed.  1086,  31  S. 
Ct.  79. 

The  enactment  of  a  state  statute  sub- 
jecting to  an  inheritance  tax  the  rights  of 
a  surviving  wife  in  the  community  prop- 
erty does  not  violate  the  contract  clause 
of  the  federal  constitution,  even  if  such 
rights,  as  they  existed  when  the  marriage 
was  celebrated,  are  contractual,  so  that 
they  may  not  be  essentially  changed  or 
modified  by  subsequent  legislation  without 
impairing  contract  obligations.  (1910) 
Moffit  V.  Kelly,  218  U.  S.  400,  54  L.  Ed. 
1086,  31  S.  Ct.  79,  affirming  judgments  In 
re  Moffit's  Estate  (1908)  95  P.  653,  1025, 
]53  Cal.  359,  20  L.  R.  A.   (N.  S.).  207. 

808-87.  Compacts  between  states — Vir- 
ginia and  Kentucky — Failure  to  list  land 
titles  for  taxation — Forfeiture. — While 
the  Virginia  compact  prevents  the  cutting 
down  of  the  titles  secured  under  the  state 
of  Virginia  prior  to  its  date,  so  as  to  take 
away  substantial  rights  incident  to  the 
title,  as  was  the  case  in  Green  v.  Biddle, 
8  Wheat.  1,  5  L.  Ed.  547,  it  did  not  mean 
to  prevent  the  state,  upon  notice  and  hear- 
ing,   from    requiring    the    registration    of 


631 


811-812 


IMPAIRMEXT,   ETC.,   OF   CONTRACTS. 


Vol.  VI. 


J.  Contracts  of  Municipalities — 1.  In  General. — By  Law  or  Ordinance 
as  Law  within  Meaning  of  Contract  Clause. — See  ante,  "By-Laws  and 
Ordinances/'  11,  G. 

2.  How  Obligation  Impaired — a.  By  Mere  Refusal  to  Perform. — See  note  1. 
b.  By  Mere  Denial  of  Liability. — See  note  2. 

3.  Right  to  Contract  Away  Its  Legislative  Powers. — See  note  5. 


land  titles  for  taxation,  or,  in  default 
thereof,  from  forfeiting  such  titles  to  the 
state.  These  laws  do  not  have  the  efifect 
of  taking  away  legitimate  rights  secured 
by  the  old  grants,  but  enable  the  new 
sovereign  to  enforce  against  such  lands, 
as  well  as  others,  the  taxing  laws  of  the 
state.  It  was,  of  course,  recognized  that 
the  land  would  pass  under  the  dominion 
of  a  new  state,  which  would  require  rev- 
enues for  its  support,  and  while  the  title 
obtained  from  the  state  of  Virginia^  was 
protected,  it  was  not  intended  that  it 
should  be  immune  from  constitutional 
laws  having  the  efifect  to  subject  such 
lands  to  the  taxing  power  of  the  new  sov- 
ereignty, and  to  require  their  owners,  by 
all  proper  methods,  to  contribute  their 
share  to  the  public  burdens  of  the  state. 
Kentucky  Union  Co.  v.  Kentucky,  219  U. 
S.  140,  55  L.  Ed.  137,  31  S.  Ct.  171. 

Requiring  upon  notice  and  hearing  the 
listing  of  land  titles  for  taxation  for  cer- 
tain specified  years,  or,  in  default  thereof, 
forfeiting  such  title  to  the  state,  as  is 
done  by  Kentucky  Act  of  March  15,  1906, 
art.  3,  does  not,  as  to  titles  under  grants 
from  the  state  of  Virginia,  violate  the 
provisions  of  the  compact  of  1789,  between 
the  states  of  Virginia  and  Kentucky,  for 
the  security  of  private  rights  existing  at 
the  time  of  the  separation  of  the  states, 
to  be  determined .  by  the  then  existing 
laws  of  Virginia.  Kentucky  Union  Co.  v. 
Kentucky,  219  U.  S.  140.  55'  L.  Ed.  137,  31 
S.  Ct.  171. 

811-1.  Mere  refusal  of  city  to  perform 
contract  not  within  inhibition. — See  ante, 
"Violation  of  Contracts  bv  the  State," 
III,  D,  2. 

There  is  no  case  of  impairment  of  obli- 
gation, or  taking  the  property  without  due 
process  of  law,  where  the  facts  show  that 
the  city  merely  violated  its  contract  to 
take  over  the  laterals  of  a  drainage  com- 
pany, to  be  paid  for  by  tax  warrants,  and 
proceeded,  under  a  law  enacted  before  the 
contract  was  made,  to  issue  bonds  to  de- 
fray the  cost  of  a  new  sj'-stem.  Shawnee, 
etc..  Drainage  Co.  v.  Stearns,  220  U.  S. 
462,  55  L.  Ed.  544,  31  S.  Ct.  452. 

The  court  is  pointed  to  no  law  im- 
pairing the  obligation  of  the  contract. 
The  statute  under  which  the  bonds  were 
authorized  to  be  issued  is  not  such  a  law. 
It  was  passed  before  the  contract  was 
made.  The  breach  of  a  contract  is  neither 
a  confiscation  of  property  nor  a  taking  of 
property  without  due  process  of  law.  The 
case,    therefore,    comes    within    the    prin- 


ciples announced  in  St.  Paul  Gas,  etc.,  Co. 
V.  St.  Paul,  181  U.  S.  142,  145,  45  L.  Ed. 
788,  21  S.  Ct.  575;  Shawnee,  etc..  Drainage 
Co.  V.  Stearns.  220  U.  S.  402,  55  L.  Ed. 
544,  31  S.  Ct.  452. 

811-2.  Mere  denial  of  liability  by  munici- 
pality.— See,  also,  ante,  "Violation  of 
Contracts  by  the  State,"  III,  D,  2. 

The  jurisdiction  of  a  federal  circuit 
court  of  a  suit  by  a  street  railway  com- 
pany to  enjoin  the  enforcement  of  a  mu- 
nicipal ordinance  as  impairing  contract 
rights  can  not  be  sustained,  where  such 
ordinance,  after  reciting  that  questions  as 
to  the  company's  rights  have  been  raised, 
orders  it  to  remove  its  tracks,  and  directs 
the  city  solicitor  to  take  action  to  enforce 
the  city's  position,  since  such  direction 
must  contemplate  enforcement  by  suit, 
and  not  the  forcible  removal  of  the  tracks. 
Des  Moines  v.  Des  Moines,  etc.,  R.  Co., 
214  U.  S.  179,  53  L.  Ed.  958,  29  S.  Ct.  553. 

"This  is  not  a  law  impairing  the  rights 
alleged  by  the  appellee,  and  therefore  the 
jurisdiction  of  the  circuit  court  can  not  l)e 
maintained.  Leaving  on  one  side  all  ques- 
tions as  to  what  can  be  done  by  resolu- 
tion, as  distinguished  from  ordinance,  un- 
der Iowa  laws,  we  read  this  resolution  as 
simply  a  denial  of  the  appellee's  claim,  and 
a  direction  to  the  city  solicitor  to  resort 
to  the  courts  if  the  appellee  shall  not  ac- 
cept the  city's  views."  Des  Moines  v.  Des 
Moines,  etc.,  R.  Co.,  214  U.  S.  179,  53  L. 
Ed.  958,  29   S.   Ct.  553. 

But  municipal  legislation  carried  into 
effect  by  mandamus,  which  requires  a 
railroad  company  to  make  repairs  in  a 
viaduct  at  its  own  expense,  in  accordance 
with  plans  adopted  and  approved  by  the 
municipal  council,  can  not  be  regarded  as 
a  mere  repudiation  by  the  municipality  of 
its  agreement  to  maintain  the  viaduct,  so 
as  to  defeat  the  appellate  jurisdiction  of 
the  supreme  court  of  the  United  States 
over  a  state  court,  invoked  on  the  ground 
that  contract  obligations  were  therebj^ 
impaired.  Northern  Pac.  R.  Co.  v.  Du- 
luth,  208  U.  S.  583,  52  L.  Ed.  630,  28  S.  Ct. 
341. 

812-5.  City  can  not  usually  contract 
away  its  legislative  powers. — See  post, 
POLICE  POWER.  And  see,  also.  post. 
"In  General,"  IV,  A;  "Police  Power," 
IV  B. 

The  surrender,  by  contract,  of  a  power 
of  government,  though  in  certain  well  de- 
fined cases  it  may  be  made  by  legislative 
authority,  is  a  very  grave  act.  and  the 
surrender   itself,   as   well   as   the   authority 


632 


Vol.  \'T. 


IMP.-URMEXT,   ETC.,   OF   COXTRACTS. 


812-816 


4.  Ultra  \'ires  Coxtracts. — See  note  6. 

5.  Particular  Contracts  Considered — a.  Municipal  Aid  Contracts — (1) 
In  General. — See  note  11. 

b.  Contracts  zvith  Street  Railroads — (^)  In  General. — Grants  by  ordi- 
nance, to  a  street  railway  company,  when  embodying  the  terms  of  a  contract,  are 
protected  by  the  federal  constitution  from  impairment  by  subsequent  state  leg- 
islation. Notwithstanding  the  principle  of  strict  construction,  whatever  is  plainly 
granted  can  not  be  taken  from  the  parties  entitled  thereto  by  such  legislative 
enactments. 1'^'^ 

(4)  Regulation  of  Rates. — See  note  23. 


to  make  it,  must  be  closely  scrutinized. 
No  other  body  than  the  supreme  legisla- 
ture (in  this  case,  the  legislature  of  the 
state)  has  the  authority  to  make  such  a 
surrender,  unless  the  authority  is  clearly 
delegated  to  it  by  the  supreme  legisla- 
ture. The  general  powers  of  a  miunicipal- 
ity  or  of  any  other  political  subdivision  of 
the  state  are  not  sufficient.  Specific  au- 
thority for  that  purpose  is  required. 
Home  Tel.,  etc.,  Co.  v.  Los  Angeles,  211 
U.   ,S.  265,  273,  53   L.   Ed.   176,  29   S.   Ct.   50. 

The  legislative  authority  to  the  mu- 
nicipality to  make  such  a  contract  must 
clearly  and  unmistakably  appear.  Home 
Tel.,  etc.,  Co.  v.  Los  Angeles.  211  U.  S. 
265,   277,    53    L.    Ed.    176,   29    S.    Ct.    50. 

Inviolable  contract  suspending  power 
to  regulate  rates. — See,  also,  post,  "Regu- 
lation of  Rates,"  IH,  J.  5,  b,  (4):  "Or- 
dinances Granting  Privileges  to  Public 
Service  Companies,"  IH,  J,  6. 

The  state  may  authorize  one  of  its 
municipal  corporations  to  establish  by  an 
inviolable  contract  the  rates  to  be  charged 
by  a  public  service  corporation  (or 
natural  person)  for  a  definite  term,  not 
grossly  unreasonable  in  point  of  time,  and 
the  effect  of  such  a  contract  is  to  sus- 
pend, during  the  life  of  the  contract,  the 
governmental  power  of  fixing  and  regu- 
lating the  rates.  Home  Tel.,  etc.,  Co.  ■:'. 
Los  Angeles,  211  U.  S.  265.  273,  53  L.  Ed. 
176,  29  S.  Ct.  50;  Detroit  z:  Detroit,  et'- . 
St.  R.  Co.,  184  U.  S.  368,  382,  46  L.  Ed. 
592;  Vicksburg  z'.  Vicksburg  Waterworks 
Co.,  206  U.  S.  496,  508,  51  L.  Ed.  1155. 

But  for  the  very  reason  that  such  a 
contract  has  the  effect  of  extinguishing 
pro  tanto  an  undoubted  power  of  govern- 
ment, both  its  existence  and  the  au- 
thority to  make  it  must  clearly  and  un- 
mistakably appear,  and  all  doubts  must 
be  resolved  in  favor  of  the  continuance 
of  the  power.  Home  Tel.,  etc.,  Co.  r. 
Los  Angeles,  211  U.  S.  265,  273,  53  L.  Ed. 
176,   29   S.   Ct.   50. 

812-6.  Ultra  vires  contract  to  maintain 
viaduct  over  railroad  tracks. — Reouiring  a 
railway  company  to  repair,  at  its  own  ex- 
pense, a  viaduct  and  its  approaches,  built 
to  carry  over  a  railroad  a  street  which 
was  not  extended  over  the  right  of  way 
until  after  the  railroad  was  built,  can  not 
be  said  to  impair  the  obligation  of  a  con- 


tract by  which  the  municipality,  in  con- 
sideration of  a  contribution  from  the  rail- 
road company  toward  the  expense  of  the 
original  construction,  agreed  to  maintain 
the  viaduct  for  fifteen  years,  and  to  main- 
tain the  approaches  perpetually,  where 
the  highest  state  court  consistently  with 
its  earlier  decisions,  holds  that  the  rail- 
way charter,  as  well  as  the  common  law, 
requires  the  railway  company  to  construct 
and  maintain  suitable  crossings  at  exist- 
ing and  future  streets,  and  that  any  con- 
tract limiting  the  exercise  of  legislative 
power  in  this  regard  is  void  as  against 
public  policy,  although  there  may  have 
been  some  doubt  when  the  contract  was 
made  as  to  what  the  rights  of  the  parties 
were,  and  the  contract  may  have  been  a 
compromise.  Judgment,  State  v.  North- 
ern Pac.  Ry.  Co.  (1906),  108  N.  W.  269, 
98  ]\Iinn.  429,  affirmed.  Northern  Pac.  R. 
Co.  f.  Duluth,  208  U.  S.  583,  52  L.  Ed.  630, 
28  S.  Ct.  341. 

813-11.  Inviolable  of  municipal  aid  con- 
tracts.— The  obligation  of  a  valid  mu- 
nicipal grant  of  a  special  tax  of  5  mills  in 
aid  of  a  specified  railway  companj-,  ef- 
fective against  all  the  taxable  property  in 
the  parish,  is  not  unconstitutionally  im- 
paired by  the  subsequent  adoption  of  a 
new  state  constitution  under  which  an}^ 
property  in  the  parish  passing  into  the 
possession  of  any  railroad  thereafter  con- 
structed becomes  exempt  from  the  tax. 
Arkansas,  etc.,  R.  Co.  v.  Louisiana,  etc., 
R.  Co.,  218  U.  S.  431.  54  L.  Ed.  1097,  31 
S.   Ct.  56. 

815-17a.  Inviolability  of  contract  with 
street  railway — In  general. — Minneapolis 
z:  Minneapolis  St.  R.  Co.,  215  U.  S.  417, 
54  L.  Ed.  259,  30  S.  Ct.  118.  See,  gen- 
erally, post,  STREET  RAILWAYS.  See. 
also,  ante.  "By  Mere  Refusal  to  Per- 
form," III,  J,  2,  a;  "By  Mere  Denial  of 
Liability."  TIL   T.  2.  b. 

Disposition  of  property  after  cessation 
of  use,  expiration  of  franchise,  etc. — See 
ante.  DUE  PROCESS  OF  LAW.  p. 
475;  post,  POLICE  POWER. 

816-23.  Regulation  of  street  railroad 
rates — Irrevocable  contracts  suspending 
powers. — See,  also,  ante.  "Right  to  Con- 
tract Away  Its  Legislative  Powers,"  III, 
J,    3;    post,    "Ordinances    Granting    Frivi- 


633 


820 


IMPAIRMENT,  ETC.,  OF  CONTRACTS. 


Vol.  VI. 


6.    Ordinances  Granting  Privileges  to  Public  Service  Companies. 
note  35. 


-See 


leges      to      Public      Service      Companies," 

III,  J,  6.  r  ^     ■     A 

Legislative  ratification  of  unauthorized 
contract.— The  contract  right  of  a  street 
railway  company  to  charge  the  rate  of 
fare  permitted  by  a  municipal  ordmance 
vests  in  such  company,  secure  agamst  im- 
pairment by  subsequent  legislation,  when 
ratified  by  a  valid  legislative  act,  notwith- 
standing the  want  of  power  of  the  city  to 
adopt  the  ordinance.  Decree  Minneapolis 
St.  Ry.  Co.  V.  City  of  Minneapolis  (Minn. 
1907),  155  F.  989,  modified.  Minneapolis 
■V.  Minneapolis  St.  R.  Co.,  215  U.  S.  417, 
54  L.   Ed.  259,  30   S.   Ct.   118. 

Same— Extent  of  reserved  right  of  fu- 
ture contract.— The  right  of  future  con- 
trol, reserved  to  the  municipality  in  a 
street  railway  franchise,  as  respects  the 
"construction,  maintenance,  and  opera- 
tion" of  the  line  of  a  street  railway  com- 
pany, does  not  include  the  power  to  re- 
duce fares  below  the  rate  prescribed  in 
an  existing  contract  between  the  mu- 
nicipality and  the  company,  but  such  pro- 
vision has  reference  only  to  the  manner 
of  carrying  on  the  business  of  the  road, 
the  laying  of  its  tracks,  the  use  of  its 
streets,  the  keeping  up  of  the  equipment, 
the  safety  of  the  passengers  and  the  pub- 
lic, and  similar  matters  not  involving  the 
right  to  charge  fares.  Decree,  Minne- 
apolis St.  Ry.  Co.  V.  City  of  Minneapohs 
(Minn.  1907),  155  F.  989,  modified.  Min- 
neapolis V.  Minneapolis  St.  R.  Co.,  215 
U.  S.  417,  54  L.  Ed.  259,  30  S.   Ct.  118. 

Same — Duration  of  contract  beyond  ex- 
piration of  charter. — The  contract  right 
of  a  street  railway  company  to  charge 
five-cent  fares,  secured  against  impairment 
"during  the  term  of  its  charter"  by  a  mu- 
nicipal ordinance  ratified  by  Minn.  Act 
of  March  4,  1879,  extends  for  fifty  years, 
where  the  company  undertook  to  organize 
for  that  period,  under  Minn.  LaAvs  18p6, 
chap.  34,  titl.  1,  and  its  certificate  of  in- 
corporation stated  that  its  corporate  life 
was  to  be  for  that  term,  and  has  con- 
tinued to  act  as  a  corporation  since  the 
expiration  of  the  thirty  years  which  would 
have  been  its  corporate  life,  if  organized, 
as  the  municipality  contends  it  should 
have  been,  under  tit.  2  of  such  chapter. 
Minneapolis  v.  Minneapolis  St.  R.  Co  ,  215 
U.    S.   417.   54   L.   Ed.   259,   30   S.   Ct.   118. 

Same— Effect  of  acceptance  of  ordi- 
nance authorizing  change  of  motive 
power. — Existing  contract  rights  of  a 
street  railway  company  to  charge  five-cent 
fares  secured  against  impairment  by  sub- 
sequent legislation,  were  not  abandoned 
l^y  accepting  an  ordinance  authorizing 
a  change  of  motive  power  from  horse 
power  to  electricity,  although  the  origi- 
nal franchise  named  only  animal  or 
pneumatic  power,  where  it  also  provided 


that  no  propelling  power  should  be  used 
after  it  should  be  proved  a  public  nui- 
sance, and  that  the  company  might  con- 
nect with  other  street  railways  upon 
which  power  was  used  similar  to  that  au- 
thorized to  be  used  by  street  railways  by 
the  city  council,  but  that  steampower 
cars,  such  as  were  in  common  use,  should 
not  be  used  upon  the  city  tracks  unless 
specially  authorizea.  Minneapolis  v.  Min- 
neapolis St.  R.  Co.,  215  U.  S.  417,  54  L. 
Ed.   259,  30  S.   Ct.   118. 

Same — Acceptance  of  ordinance  requir- 
ing company  to  issue  transfers. — The  ac- 
ceptance of  a  municipal  ordinance  re- 
quiring a  street  railway  company  to  is- 
sue transfers  does  not  abrogate  an 
existing  contract  secured  against  impair- 
ment by  subsequent  legislation  to  charge 
a  five-cent  fare  for  one  continuous  passage 
not  exceeding  three  miles  in  length. 
Minneapolis  v.  Minneapolis  St.  R.  Co., 
215  U.   S.   417,  54  L.   Ed.  259,  30  S.   Ct.   118. 

820-35.  Ordinance  granting  privileges  to 
public  service  companies — Stipulation  as 
to  rates — Reserved  control. — See,  also, 
ante,  "Right  to  Contract  Away  Its  Legis- 
lative Powers,"  III,  J,  3;  "Regulation  of 
Rates,"  III,  J,  5,  b,  (4).  See,  also,  post, 
POLICE   POWER. 

A  provision  in  an  ordinance  granting 
a  renewal  of  its  franchise  to  a  gas  com- 
pany that,  in  consideration  of  the  privi- 
leges granted,  it  shall  furnish  gas  at  a 
price  not  to  exceed  $1.80  per  thousand 
cubic  feet,  and  20  cents  per  thousand  feet 
for  discount  to  consumers  paying  before 
the  10th  of  each  month  after  consump- 
tion, is  not  a  contract  by  the  city  that  the 
price  shall  be  kept  high  enough  to  allow 
a  discount  for  prompt  payment,  the  agree- 
ment being  that  of  the  company  alone, 
and  subject  to  the  city's  power  to  regu- 
late rates.  Cedar  Rapids  Gas.,  etc.,  Co. 
V.  Cedar  Rapids,  223  U.  S.  655,  56  L.  Ed. 
594,  32   S.   Ct.   389. 

The  words  relied  upon  by  the  plaintiff 
express  its  promise  in  consideration  of 
the  privileges  granted,  not  a  promise  by 
the  city.  Knoxville  Water  Co.  v.  Knox- 
ville,  189  U.  S.  434,  437,  47  L.  Ed.  887,  23 
S.  Ct.  531.  It  is  true  that  the  contract 
was  in  the  form  of  an  ordinance,  but  the 
ordinance  was  drawn  as  a  contract,  to  be 
accepted,  and  it  was  accepted  b}'  the  plain- 
tiff; it  contained  reciprocal  undertakings, 
the  one  in  question  being  that  of  the 
plaintiff;  and  it  was  subject  to  the  power 
retained  by  the  city  to  regulate  rates. 
That  power,  it  was  expressly  provided  by 
the  Iowa  statute,  was  not  to  be  abridged 
bv  ordinance,  resolution,  or  contract. 
Code  of  1897,  §  725,  22  G.  A.  (1888),  chap. 
16.  Cedsr  Rapids  Gas,  etc.,  Co.  v.  Cedar 
Rapids,  223  U.  S.  655,  56  L.  Ed.  594,  32  S. 
Ct.  389. 


634 


Vol.  VI.  IMPAIRMENT,  ETC.,   OF  CONTRACTS.  820-828 

7.  Regulation  of  Streets  and  Highways. — Display  of  Advertisements 
on  Vehicles  in  Street. — Contract  obligations  are  not  unconstitutionally  im- 
paired by  a  municipal  ordinance  under  which  a  domestic  corporation  operating 
stage  routes  in  the  city  streets  is  forbidden  to  display  exterior  advertisements  on 
its  stages,  where,  at  the  time  the  advertising  contracts  were  entered  into  there  ex- 
isted an  ordinance  almost  identical  in  terms,  and  the  company's  charter  does  not 
confer  any  right  to  use  its  stages  for  advertising  purposes.^*''^ 

0.  Marriage  Contracts.— See  ante.  Husband  and  Wife,  p.  620.  As  to 
vested  or  contractual  rights  in  property  arising  jure  maritii,  see  ante.  Constitu- 
tional Law,  p.  264.    See,  also,  ante,  "Inheritance  Taxes,"  III,  D,  12,  c. 

U.    Licenses. — See  post.  Licenses. 

IV.    Laws  Concerning  Civil  Institutions  or  Governmental  Subjects. 

A.  In  General. — As  to  the  power  of  the  state  to  bargain  away  its  police  or 
other  governmental  powers,  see  post.  Police  Power.  See,  also,  ante,  "Right  to 
Contract  Away  Its  Legislative  Powers,"  III,  J,  3.  As  to  the  power  of  individuals 
to  impose  limitations  upon  the  exercise  of  governmental  powers  and  to  withdraw 
legitimate  subjects  of  legislation  from  governmental  control  by  entering  into 
contracts  respecting  the  same,  see  post.  Police  Power.  As  to  contracts  concern- 
ing matters  within  the  controlling  power  of  congress  over  foreign  and  interstate 
commerce,  such  as  contracts  for  rebates,  free  passes,  and  reduced  rates,  contracts 
exempting  or  releasing  carriers  engaged  in  interstate  traffic  from  liability  for 
personal  injuries  to  servants,  etc.,  see  post,  Interstate  and  Foreign  Commerce. 
That  all  charter  and  contract  rights  are  subject  to  police  regulation,  see  post.  Po- 
lice Power. 

B.  Police  Power. — See  ante,  references  under  "In  General,"  IV,  A.  See, 
generally,  post.  Police  Power. 

D.    Exercise  of  Eminent  Domain. — See  note  76. 

820-36a.    Display   of   advertisements   on  S.  650,  29  L.   Ed.  516,  6  S.   Ct.  252;  Long 

vehicles  in  streets. — Fifth  Ave.  Coach  Co.  Island   Water,   etc.,    Co.   v.   Brooklyn,    166 

V.  New  York,  221  U.  S.  467,  55  L.  Ed.  815,  U.    S.   685,   41   L.    Ed.    1165,   17    S.    Ct.    718; 

31   S.   Ct.   709,   affirming  194   N.  Y.   19,   86  Offield  v.  New  York,  etc.,  R.  Co.,  203  U. 

N.   E.  824,  21    L.   R.  A.    (N.  S.),  744,  16  A.  S.  372,  51  L.  Ed.  231,  27  S.  Ct.  72;  Cincin- 

&  E.  Ann.  Cas.  695,  which  affirms   (1908),  nati  v.   Louisville,   etc.,   R.   Co.,   223   U.   S. 

Ill    N.   Y.   1037,   which   affirmed    Butchers  390,  56  L.  Ed.  481,  32  S.  Ct.  267. 

Union,  etc.,  Co.  v.  Crescent  City,  etc.,  Co.,  Every    contract,    whether    between    the 

111  U.  S.  746,  28  L.  Ed.  585,  4  S.  Ct.  652.  State    and    an    individual,    or    between    in- 

828-76.     The  rights  of  eminent  domain  dividuals  only,   is   subject   to  this  general 

a  sovereign  right. — The  constitutional  in-  law.      There    enters    into    every     engage- 

hibition  upon  any  state  law  impairing  the  ment    the    unwritten    condition    that    it    is 

obligation  of  contracts  is  not  a  limitation  subordinate   to  the   right  of  appropriation 

upon  the  power  of  eminent  domain.     The  to  a  public  use.     Cincinnati  v.  Louisville, 

obligation    of   a   contract   is   not   impaired  etc.,   R.   Co.,  223  U.   S.  390,  56  L.  Ed.  481, 

when   it   is   appropriated   to   a  public   use  32   S.   Ct.  267;   West   River  Bridge   Co.  v. 

and    compensation    made    therefor.      Such  Dix,    6    How.    507.    12    L.    Ed.    535;    Long 

an   exertion   of  power   neither   challenges  Island  Water,   etc.,    Co.   v.   Brooklyn,   166 

its    validity    nor    impairs     its      obligation.  U.    S.   685,   692,   41    L.    Ed.   1165,   17   S.   Ct. 

Both    are    recognized,    for   it   is   appropri-  718. 

ated  as  an  existing,  enforceable  contract.  Same — Existing   law    as    entering    into 

It  is   a  taking,   not   an  impairment   of  its  obligation      of      contract — Ordinance       of 

obligation.     If  compensation  be  made,  no  1787. — The    power     of      eminent      domain 

constitutional    right    is    violated.      Cincin-  possessed   by   the   state   of   Ohio   was   not 

nati  V.    Louisville,   etc.,   R.   Co.,   223   U.   S.  restricted  in   any  way  after  its   admission 

390,  56  L.  Ed.  481,  32  S.  Ct.  267.  to    the    Union,    by    the    provisions    of    the 

This    has    been    so    long    settled    as    to  2d  article  of  the  ordinance  of  1787  for  the 

need    only    the    citation    of    some    of    the  government    of    the    Northwest    territory, 

many      cases.        Charles       River      Bridge  relating      to     that    subject.      Cincinnati    v. 

V    Warren   Bridge,   11   Pet.   420,   9   L.    Ed.  Louisville,   etc..   R.   Co.,   223   U.   S.   390,   56 

773;     West    River    Bridge    Co.    v.    Dix,     6  L.  Ed.  481,  32  S.  Ct.  267. 

How.    507,    12    L.    Ed.    535;    New    Orleans  Speaking    upon    this    point,     the      court 

Gas    Co.    V.    Louisiana   Light    Co.,    115    U.  says:     "It  is  next  contended  that  whether 

635 


833-840 


IMPAIRMENT,   ETC.,    OF  CONTRACTS. 


Vol.  VI. 


E.  Public  Offices  and  Officers. — As  to  property  or  contract  rights  in  public 
office  lawfully  purchased  and  held  in  Porto  Rico  or  the  Philippines  prior  to 
their  cession  to  the  United  States,  see  post,  Constitutional  Law,  p.  264. 

F.  Control  over  Navigable  Waters. — See  note  95. 

V.    Contracts  of  Private  Individuals. 

B.  How  Obligation  Impaired — 2.  Law  Affe:cting  Validity,  Construc- 
tion, Discharge  and  Enforcement — d.  Lozn's  Annexing  Conditions  to  Its  Bn- 
forcement. — See  note  8. 

D.  Contracts  of  Stockholders. — As  to  whether  a  statute  regulating  the 
manner  in  which  a  stockholder  may  transfer  his  stock  impairs  the  obligation  of 
his  contract,  see  post,  Stock  and  Stockholders. 

VI.    Legislative  Control  over  Public  and  Private  Corporations. 

A.    Legislative  Control  over  Private  Corporations. — See,  generally,  ante, 
Corporations,  p.  381;  Foreign  Corporations,  p.  584;  post,  Police  Power. 
2.    Insurance:  Companies. — See  note  34. 


the  provisions  of  article  2  now  constitute 
the  irrevocable  fundamental  law  of  Ohio 
or  not,  that  that  provision  was  the  only 
law  of  eminent  domain  existing  in  178".), 
and  as  such  is  to  be  regarded  as  read  into 
the  contract  of  dedication,  and,  there- 
fore, is  the  only  power  of  eminent  do- 
main to  which  that  contract  was  subor- 
dinate. Upon  this  hypothesis  is  based  the 
contention  that  any  subsequent  law  of 
Ohio  authorizing  a  taking  of  this  prop- 
erty for  a  purpose  or  use  not  within  the 
terms  of  the  ordinance  of  1787  is  a  law 
impairing  the  obligation  of  a  contract. 
But  the  assumption  that  the  power  of 
eminent  domain  possessed  by  the  North- 
west territory  in  1787  was  limited  as 
claimed  is  untenable.  The  clause  referred 
to  assumes  the  existence  of  a  general 
power  of  eminent  domain  in  the  govern- 
ment, and  provides  that,  when  exerted, 
there  must  be  full  compensation  for  the 
property  ,taken  or  the  services  required." 
Cincinnati  v.  Louisville,  etc.,  R.  Co.,  22:3 
U.   S.   390,   5G  L.   Ed.   481,  32-  S.    Ct.   267. _ 

The  obligations  of  a  contract  by  which 
a  river  front  strip  at  Cincinnati  was  dedi- 
cated to  the  public  use  were  not  impaired 
by  the  condemnation,  conformably  to 
Ohio  Rev.  Stat.,  §  3283a,  of  a  right  of  way 
for  an  elevated  railroad  track  across  such 
strip,  even  assuming  that  there  is  to  be 
read  into  the  contract  the  then-existing 
law  of  eminent  domain,  including  the  pro- 
visions of  article  2  of  the  ordinance  of 
1787  for  the  government  of  the  North- 
west territory,  that  "should  the  public 
exigencies  make  it  necessary,  for  the  com- 
mon preservation,  to  take  any  person's 
property,  or  to  demand  his  particular 
service,  full  compensation  shall  be  made 
for  the  same."  Cincinnati  v.  Louisville, 
etc.,  R.  Co.,  223  U.  S.  390,  56  L.  Ed.  481, 
32   vS.   Ct.  267. 

833-95.  Control  over  navigable  waters. 
— Tlie   obligations  of  a  contract  to  divert 


the  waters  of  the  Passaic  River  into  an- 
other state,  for  use  therein,  are  not  un- 
constitutionally impaired  by  the  enact- 
ment, in  the  exercise  of  the  police  power, 
of  Laws  N.  J.  1905,  p.  461,  c.  238,  under 
which  such  a  diversion  of  water  beyond 
the  state  is  forbidden.  Hudson  County 
Water  Co.  v.  McCarter,  209  U.  S.  349,  52 
L.  Ed.  828,  28  S.  Ct.  529,  affirming  Mc- 
Carter V.  Hudson  County  Water  Co.,  70 
N.  J.   Eq.  695,  65  Atl.  489. 

835-8.  Laws  annexing  conditions  to  con- 
tract.— The  legislation  which  deprives  one 
of  the  1)enefit  of  a  contract,  or  adds  new 
duties  or  obligations  thereto,  necessarily 
impairs  the  obligation  of  the  contract,  and 
when  the  state  court  gives  effect  to  subse- 
quent state  or  municipal  legislation  which 
has  the  effect  to  impair  contract  rights 
by  depriving  the  parties  of  their  benefit, 
and  make  requirements  which  the  con- 
tract did  not  theretofore  impose  upon 
them,  a  case  is  presented  for  the  juris- 
diction of  the  federal  supreme  court. 
Northern  Pac.  R.  Co.  v.  Duluth,  208  U. 
S.  583,  52  L.  Ed.  630,  28  S.  Ct.  341;  New 
Orleans  Waterworks  Co.  v.  Louisiana,  185 
U.   S.  336,  351,  46  L.  Ed.  936,  22  S.  Ct.  691. 

840-34.  Statute  authorizing  adoption  of 
premium  place. — Contract  obligations  be- 
tween an  association  insuring  lives  upon 
the  co-operative  plan  and  its  members  are 
not  unconstitutionally  impaired  by  the 
reorganization  of  such  association  as  a 
mutual  level  premium  company,  pursuant 
to  Laws  N.  Y.  1901,  p.  1779,  c.  722,  under 
a  new  name  and  without  the  consent  of 
the  members,  because  such  statute  pro- 
vides that  outstanding  assessment  con- 
tracts shall  be  appraised  as  liabilities  as 
if  they  were  one-year  term  insurance  at 
the  asres  attained.  Polk  v.  Mutual,  etc.. 
Life  Ass'n,  207  U.  S.  310,  52  L.  Ed.  222, 
28  S.  Ct.  65.  See.  also,  post,  INSUR- 
ANCE; POLICE  POWER. 


636 


Vol.  VI. 


IMPAIRMENT,   ETC.,   OF  CONTRACTS. 


846-848 


3.  Reorganization  of  Corporations. — See  ante,  "Insurance  Companies," 
VI,  A,  2. 

5.  Exemption  from  Governmental  Control. — See  ante,  Corporations,  p. 
381  ;  post,  Police  Power.  As  to  contracts  suspending  the  power  of  the  state  or 
city  to  regulate  rates  of  public  service  companies,  see  ante,  "Right  to  Contract 
Away  Its  Legislative  Powers,"  III,  J,  3 ;  "Regulation  of  Rates,"  III,  J,  5,  b,  (4)  ; 
"Ordinances  Granting  Privileges  to  Public  Service  Companies,"  III,  J,  6.  See, 
also,  post,  Police  Power. 

7.  Control  of  Water  Companies. — See  post.  Water  Companies  and 
Waterworks.  As  to  the  power  to  regulate  rates,  compel  company  to  make  serv- 
ice connections  at  its  own  expense,  etc.,  see  post,  Police  Power. 

B.  Legislative  Control  over  Municipal  Corporations — 1.  In  General.— 
Municipal  Charter  as  a  Contract  between  Municipality  and  the  State. — 
See  post,  Municipal  Corporations. 

4.  Power  with  Respect  to  Division  of  Towns  and  Alteration  of  Bound- 
aries— c.  As  Affecting  Rights  of  Citizens  and  Taxpayers. — There  is  no  contract 
between  the  citizens  and  taxpayers  of  a  municipal  corporation  and  the  corpora- 
tion itself  that  the  former  shall  be  taxed  for  only  the  uses  of  that  corporation, 
which  is  impaired  by  subjecting  them  to  taxation  for  the  uses  of  the  enlarged 
municipality  formed  by  annexation,  under  the  authority  of  statute  to  an  adjoin- 
ing and  larger  municipality. ^'^'^ 

5.  Municipal  Debts — d.  Limiting  Taxing  Pozver  of  Municipalities — (1)  In 
General. — See  notes  61.  62. 


846-56a.  As  affecting  rights  of  citizens 
and  taxpayers. — Judgment,  In  re  City  of 
Pittsburg,  66  A.  348,  217  Pa.  227;  Appeal 
of  Hunter,  Id.,  affirmed.  Hunter  v.  Pitts- 
burgh, 207  U.  S.  161,  52  L.  Ed.  151,  28  S. 
Ct.   40. 

This  assignment  does  not  rest  upon  the 
theory  that  tlie  charter  of  the  city  is  a 
contract  with  the  state,  a  proposition  fre- 
quently denied  by  the  federal  supreme 
and  other  courts.  It  rests  upon  the  novel 
proposition  that  there  is  a  contract  be- 
tween the  citizens  and  taxpayers  of  a  mu- 
nicipal corporation  and  the  corporation 
itself,  that  the  citizens  and  taxpayers  shall 
be  taxed  only  for  the  uses  of  that  cor- 
poration, and  shall  not  be  taxed  for  the 
uses  of  anj'  like  corporation  with  which  it 
may  be  consolidated.  It  is  not  said  that 
the  city  of  Allegheny  expressly  made  any 
such  extraordinary  contract,  but  only  that 
the  contract  arises  out  of  the  relation  of 
the  parties  to  each  other.  It  is  difficult 
to  deal  with  a  proposition  of  this  kind 
except  by  saying  that  it  is  not  true.  Xo 
authority  or  reason  in  support  of  it  has 
been  offered  to  us,  and  it  is  utterly  incon- 
sistent with  the  nature  of  municipal  cor- 
porations, the  purposes  for  which  thej'  are 
created,  and  the  relation  they  bear  to 
those  who  dwell  and  own  property  within 
their  limits.  This  assignment  of  error  is 
overruled.  Hunter  z'.  Pittsburgh,  207  U. 
S.   161,  52   L    Ed.   151,  2S   S.   Ct.  40. 

848-61.  Limiting  taxing  power  of  mu- 
nicipalities.— The  power  of  taxation  be- 
longs exclusively  to  the  legislative  de- 
partment, and  the  legislature  may  at  any 
time    restrict    or    revoke,    at    its    pleasure. 


any  of  the  powers  of  a  municipal  corpora- 
tion, including,  among  others,  that  of 
taxation,  subject,  however,  to  this  quali- 
fication, which  attends  all  state  legisla- 
tion, that  its  action  in  that  respect  shall 
not  conflict  with  the  prohibitions  of  the 
constitution  of  the  United  States,  and, 
among  other  things,  shall  not  operate  di- 
rectly upon  contracts  of  the  corporation, 
so  as  to  impair  their  obligation  by  abro- 
gating or  lessening  the  means  of  their 
enforcement.  Hubert  Z'.  New  Orleans. 
215   U.   S.   170,   54   L.   Ed.   144,   30   S.   Ct.   40. 

848-62.  Limitation  on  right  to  abridge 
city's  taxing  power. — No  doubt  a  state 
may  limit  its  control  over  the  power  of 
a  municipal  body  to  tax  by  authorizing  it 
to  make  contracts  on  the  faith  of  its  ex- 
isting powers.  Wolff  z'.  New  Orleans,  103 
U.  S.  358,  26  L.  Ed.  395;  Hubert  v.  New 
Orleans,  215  U.  S.  170,  54  L.  Ed.  144,  30 
,S.  Ct.  40;  Arkansas,  etc.,  R.  Co.  z'.  Louisi- 
ana, etc.,  R.  Co.,  218  U.  S.  431,  54  L.  Ed. 
1097,  31  S.  Ct.  56. 

But  unless  it  did  limit  its  control  with 
a  certain  distinctness  of  implication,  a 
sul)ordinate  body  would  contract  subject, 
not  paramoimt,  to  the  power  of  the  state. 
Manigault  7-.  Springs,  199  U.  S.  473,  480, 
50  L.  Ed.  274,  26  S.  Ct.  127;  Knoxville 
Water  Co.  v.  Knoxville,  189  U.  S.  434, 
438,  47  L.  Ed.  887,  23  8.  Ct.  531;  .A.rkansas, 
etc.,  R.  Co.  V.  Louisiana,  etc.,  R.  Co.,  218 
U.    S.   431,   54  L.   Ed.   1097,  31    S.   Ct.   56. 

A  number  of  decisions  in  the  federal  su- 
preme court  have  settled  the  law  to  be 
that,  where  a  municipal  corporation  is  au- 
thorized to  contract,  and  to  exercise  the 
power  of  local  taxation  to  lueet  its  con- 


63'; 


850-856 


IMPAIRMENT,  ETC.,   OF  CONTRACTS. 


Vol.  VL 


(2)    Withdrawal    of  Right  to    Tax  to  Discharge  Municipal    Securities. — See 
note  65. 

e.    Change  in  Subjects  of  Taxation. — See  note  70. 

VII.  Remedies. 
B.    Limitations  of  General  Rule. — See  note  88. 


tractual  engagements,  this  power  must 
continue  until  the  contracts  are  satisfied; 
and  that  it  is  an  impairment  of  an  obliga- 
tion of  the  contract  to  destroy  or  lessen 
the  means  by  which  it  can  be  enforced. 
Hubert  v.  New  Orleans,  215  U.  S.  170,  54 
L.  Ed.  144,  30  S.  Ct.  40. 

850-65.  Withdrawal  of  right  to  tax  to 
discharge  municipal  securities. — In  Ralls 
County  Court  z'.  United  States,  105  U.  S. 
733,  26  L.  Ed.  1220,  it  was  held  that,  after 
a  debt  was  created  upon  certain  bonds, 
laws  passed  depriving  the  county  court  of 
the  power  to  levy  the  tax  which  it  pos- 
sessed when  the  bonds  were  issued  were 
invalid.  Hubert  v.  New  Orleans,  215  U. 
S.  170,  54  L.  Ed.  144,  30  S.  Ct.  40. 

The  receiver  of  the  metropolitan  police 
board  in  the  state  of  Louisiana,  as  repre- 
sentative of  the  interested  creditors,  is 
unconstitutionally  deprived  of  the  right 
of  taxation  by  the  city  of  New  Orleans 
for  the  payment  of  their  claims,  which 
right  existed  before  the  enactment  of 
Acts  La.  1870,  Ex.  Sess.,  p.  10,  No.  5,  by 
the  provisions  of  that  act  under  which  the 
payment  of  the  judgment  recovered  by 
such  receiver  against  the  city  upon  out- 
standing indebtedness  of  the  board,  con- 
tracted on  the  faith  of  the  exercise  of  the 
city's  power  to  levy  taxes  for  its" payment, 
may  be  indefinitely  postponed  until  such 
time  as  the  city  is  ready  and  willing  to 
make  such  payment.  Judgment  (1907),  44 
So.  321,  119  La.  623,  reversed.  Hubert  r. 
New  Orleans,  215  U.  S.  170,  54  L.  Ed.  144, 
30  S.  Ct.  40. 

"We  think  the  doctrine  of  the  Ralls 
County  case,  when  applied  to  the  facts  in 
the  case  at  bar,  is  decisive.  The  city 
levied  and  afterwards  collected  taxes  for 
the  benefit  of  the  metropolitan  police 
board.  The  police  board  had  issued  its 
outstanding  warrants  for  salaries,  etc., 
upon  the  faith  of  the  exercise  of  the  tax- 
ing power  for  their  payment.  The  con- 
tract creditors  of  the  police  board  were 
entitled  to  rely  upon  the  benefit  of  the 
laws  imposing  taxation  to  make  their 
obligations  effectual.  They  could  not, 
constitutionally,  be  deprived  of  such  bene- 
fit." Hubert  v.  New  Orleans,  215  U.  S. 
170,  54  L.  Ed.  144,  30  S.  Ct.  40. 

The  power  of  taxation  conferred  by  law 
entered  into  the  obligation  of  the  con- 
tracts, and  any  subsequent  legislation 
withdrawing  or  lessening  such  power, 
leaving    the    creditors     without      adequate 


means  of  satisfaction,  impaired  the  obli- 
gation of  their  contracts,  within  the  mean- 
ing of  the  constitution.  Hubert  v.  New 
Orleans,  215  U.  S.  170,  54  L.  Ed.  144,  dCh 
S.  Ct.  40;  Memphis  v.  United  States,  97 
U.  S.  293,  24  L.  Ed.  920;  Von  Hofifman  v. 
Quincy,  4  Wall.  535,  18  L.  Ed.  403;  Sei- 
bert  V.  Lewis,  122  U.  S.  284,  30  L.  Ed.  1161, 
7  S.  Ct.  1190;  Mobile  v.  Watson,  116  U. 
S.  289,  29  L.  Ed.  620,  6  S.  Ct.  398;  Scot- 
land County  Court  v.  Hill,  140  U.  S.  41, 
35  L.  Ed.  351,  11  S.  Ct.  697. 

851-70.  Change  in  subjects  of  taxation. 
— An  authority  given  by  the  state  to 
promise  and  levy  a  tax  in  future  years  on 
the  taxable  property  in  the  parish  does 
not  purport  to  limit  the  power  of  the 
state  to  say  what  property  shall  be  taxable 
when  the  time  comes,  at  least,  by  general 
regulations  not  aimed  at  aiding  an  evasion 
of  the  promise  it  has  allowed.  Arkansas, 
etc.,  R.  Co.  V.  Louisiana,  etc.,  R.  Co.,  218 
U.  S.  431,  54  L.  Ed.  1097,  31  S.  Ct.  56. 

A  vote  by  a  parish  to  pay  5  mills  on  all 
the  taxable  property  within  its  boundaries 
refers  on  its  face  to  a  determination  by 
the  sovereign  as  to  what  that  property 
shall  be  taxed.  Arkansas,  etc.,  R.  Co.  v. 
Louisiana,  etc.,  R.  Co.,  218  U.  S.  431,  54 
L.   Ed.  1097,  31   S.   Ct.  56. 

The  obligation  of  a  valid  municipal 
grant  of  a  special  tax  of  five  mills  in  aid 
of  a  specified  railway  company,  effective 
against  all  the  taxable  property  in  the 
parish,  is  not  unconstitutionally  impaired 
by  the  subsequent  adoption  of  a  new  state 
constitution  under  which  any  property  in 
the  parish  passing  into  the  possession  of 
any  railroad  thereafter  constructed  be- 
comes exempt  from  the  tax.  (1910),  /Ar- 
kansas, etc.,  R.  Co.  7'.  Louisiana,  etc.,  R. 
Co.,  218  U.  S.  431,  54  L.  Ed.  1097,  31  S. 
Ct.  56.  affirming  decree  in  Louisiana  &  A. 
Ry.  Co.  7'.  Shaw  (1908),  46  So.  994,  121 
La.  997.  See,  also,  ante,  "In  General," 
III,  J,  5,  a.   (1). 

856-88.  Statutes  operating  on  the  rem- 
edy may  impair  its  obligation. — The  obli- 
gation is  impaired  in  the  sense  of  the  con- 
stitution, when  the  means  by  which  aeon- 
tract,  at  the  time  of  its  execution,  could 
be  enforced,  that  is,  by  which  the  parties 
could  be  obliged  to  perform  it,  are  ren- 
dered less  efficacious  bj^  legislation  oper- 
ating directly  upon  those  means.  Hubert 
V.  New  Orleans,  215  U.' S.  170,  54  L.  Ed. 
144,   30    S.    Ct.    40. 


638 


Vol.  VI.  IMPRISONMENT  FOR  DEBT.  870-890 

K.  Statutory  Liabilities— 2.  Liability  of  Stockholders— a.  In  General. 
— See  note  32. 

IMPEACHMENT.— See  post,  Judgments  and  Decrees. 

IMPEACHMENT  OF  WITNESS.— See  post,  Witnesses. 

IMPLIED  CONTRACTS.— See  the  title  Implied  Contracts,  vol.  6,  p.  888, 
and  references  there  given. 

IMPLIED  TRUSTS.— See  post,  Trusts  and  Trustees. 

IMPLIED  WARRANTY.— See  post.  Warranty. 

IMPORTS— IMPORTED.— See  ante.  Exports  and  Imports,  p.  570;  post, 
Revenue  Laws. 

IMPOSED.— See  note  2a. 

IMPOST. — See  ante,  Duties,  p.  533;    post,  Revenue  Laws;    Taxation. 

IMPRISONMENT  FOR  DEBT. 

II.  Statutory    Provisions    Regulating    or    Abolishing    Imprisonment    for 
Debt,  639. 

C.    Effect  upon    Enforcement  of    Penal   Statutes    Imposing  Payment    of 
Money  as  Penalty,  639. 

CROSS  REFERENCES. 

See  the  title  Imprisonment  for  Debt,  vol.  6.  p.  892,  and  references  there 
given. 

II.  Statutory  Provisions  Regulating  or  Abolishing  Imprisonment  for  Debt. 

C.  Effect  upon  Enforcement  of  Penal  Statutes  Imposing  Payment  of 
Money  as  Penalty. — Statutes  relieving  from  imprisonment  for  debt  were  not 
intended  to  take  away  the  right  to  enforce  criminal  statutes  and  punish  wrongful 
embezzlements  or  conversions  of  money.  It  was  not  the  purpose  of  this  class  of 
legislation  to  interfere  with  the  enforcement  of  such  penal  statutes,  although  pro- 

870-32.  Character  and  nature  of  remedy  890-2a.  The  inheritance  tax  imposed  by 
against  stockholders  may  be  changed. —  §  29  of  the  War  Revenue  Act  of  June  13, 
The  substitution  for  individual  actions  to  1898.  although  not  due  and  payable  un- 
enforce the  "statutory  liability  of  stock-  der  §  30  thereof,  as  amended  by  §  11  of 
holders  in  a  Kansas  corporation  of  a  suit  the  Act  of  March  2,  1901,  until  one  year 
in  equity  by  a  receiver  appointed  after  after  the  death  of  the  testator,  must  be 
judgment  against  the  corporation,  which  deemed  to  have  become  an  obligation 
is  made  by  Laws  Kan.  1898  (Sp.  Sess.),  immediately  upon  the  passing  by  death 
p.  32.  c.  10,  does  not  unconstitutionally  of  a  vested  right  to  the  present  posses- 
impair  the  obligation  of  the  contract  un-  sion  or  enjoyment  of  the  legacy  or  dis- 
der  which  the  stockholders  acquired  their  tributive  share,  so  as  to  be  within  the 
stock.  Henley  v.  Myers,  215  U.  S.  373,  saving  clause  of  the  Repeal  Act  of  April 
54  L.   Ed.  240,'  30  S.   Ct.   148.  12,  1902,  §  8,  preserving  all  taxes  imposed 

In    becoming   stockholders,    the    defend-  prior  to  the   taking  effect  of  that  act,  al- 

ants  did  not  acquire  a  vested  right  in  any  though  the  testator's  death  was  less  than 

particular  mode  of  procedure  adopted  for  one   year   prior   to   such    date,   in   view_  of 

the  purpose  of  enforcing  their  liability  as  §    13    of   the    Revised    Statutes,    providing 

stockholders.      It   is    a     well     established  that  the    repeal   of  any   statute    shall    not 

doctrine  that  m.ere  methods  of  procedure  have    the    effect   to   release    or  _  extinguish 

in  actions  on  contract,  that  do  not  afifect  any    penalty,    forfeiture,    or    liability    in- 

the    substantial    rights    of   parties,    are   al-  curred  thereunder,  unless  a  repealing  act 

waj'S  within   the   control   of  the   state.     It  shall      expressly      so     provide.      Hertz    v. 

is  to  be   assumed  that  parties  make  their  Woodman.  218  U.  S.  205,  54   L.   Ed.   1001. 

contracts  v/ith   reference  to  the   existence  .30      S.      Ct.     621.      See   post,    REVENUE 

of  such   power   in   the    state*    Henley     v.  LAWS;  TAXATION. 
Myers,  215  U.  S.  373.  54  L.  Ed.  240,  30  S. 
Ct.   148. 

639 


893-901 


INCORPORATION. 


\o\.  VI. 


viding  for  the  payment  of  money  as  a  penalty  for  the  commission  of  an  offense. 
Such  laws  are  rather  intended  to  prevent  the  commitment  of  debtors  to  prison 
for  liabilities  arising  upon  their  contracts.^'' 

IMPROVEMENTS. — See  the  title  Improvements,  vol.  6,  p.  896,  and  refer- 
ences there  given. 

IMPUTABLE  NEGLIGENCE.— See  post,  Negligence. 

IMPUTED  KNOWLEDGE.— See  post,  Officers  and  Agents  of  Private 
Corporations. 

INADEQUATE  CONSIDERATION.— See  ante,  Fraud  and  Deceit,  p.  597. 

INCHOATE  LIENS.— See  note  la. 

INCIDENTAL  AND  IMPLIED  POWERS.— See  ante.  Banks  and  Banking, 
p.  184;  Constitutional  Law,  p.  264;  Corporations,  p. '381;  post.  Insurance; 
Principal  and  Agent. 

INCLUDING. — The  word  "including"  may  have  the  sense  of  addition,  and  of 
"also;"  but  it  "may  merely  specify  particularly  that  which  belongs  to  the  genus." 
It  is  the  participle  of  the  word  "include,"  which  means,  according  to  the  defini- 
tion of  the  Century  Dictionary,  (1)  "to  confine  within  something;  hold  as  in  an 
inclosure;  to  inclose;  to  contain."  (2)  "To  comprise  as  a  part,  or  as  something 
incident  or  pertinent ;  comprehend ;  take  in ;  as  the  greater  includes  the  less." 
"Including"  being  a  participle  is  in  the  nature  of  an  adjective  and  is  a  modifier.^ 

INCOME  TAX.— See  post.  Revenue  Laws. 

INCORPORATION. — See  ante.  Banks  and  Banking,  p.  184;  Corporations, 
p.  381. 


893-3a.  Effect  upon  enforcement  of 
penal  statutes. — Freeman  v.  United  States, 
217   U.   S.  539,  54   L.   Ed.  874,  30  S.  Ct.  592. 

Imprisonment  for  debt,  contrary  to  Act 
July  1,  1902,  c.  1369,  §  5,  32  Stat.  692,  is 
not  provided  by  the  Philippine  Penal 
Code,  under  which  a  person  convicted  of 
embezzlement  may  be  made  to  suffer  a 
subsidiary  imprisonment  for  a  term  not 
exceeding  one-third  of  the  principal  pen- 
alty, in  lieu  of  the  restoration  of  the  sum 
found  to  be  embezzled,  with  the  right  to 
be  released  from  such  subsidiary  punish- 
ment upon  payment  of  the  money  wrong- 
fuUv  converted.  Freeman  v.  United 
States,  217  U.  S.  539,  54  L.  Ed.  874.  30  S. 
Ct.    502. 

900-la.  Liens  prior  to  levy. — In  some 
cases  liens  in  favor  of  laborers,  me- 
chanics and  contractors  date  from  com- 
mencement of  the  work,  or  from  the 
completion  of  the  contract.  In  others, 
prior  to  levy  they  are  referred  to  as  be- 
ing dormant  or  inchoate  liens,  or  as  "a 
right  to  a  lien."  Henderson  v.  Mayer, 
225  U.  S.  631,  637,  56  L.  Ed.  1233,  32  S.  Ct. 
699 

901-a.  Including. — Montello  Salt  Co.  v. 
Utah.  221  U.  S.  452,  464,  55  L.  Ed.  810,  31 
S.  Ct.  706. 

Grant  of  lands. — Section  8  of  the  En- 
abling Act  of  the  state  of  Utah  provided: 
"That  lands  to  the  extent  of  two  town- 
ships in  quantity,  served  for  the  estab- 
lishment of  the  University  of  Utah,  are 
hereby  granted  to   the   state   of  Utah   for 


university  purposes,  to  be  held  and  used 
in  accordance  with  the  provisions  of  this 
section;  and  any  portion  of  said  lands 
that  may  not  have  been  selected  by  said 
territory  may  be  selected  by  said  state. 
That  in  addition  to  the  above,  one  hun- 
dred and  ten  thousand  acres  of  land,  to 
be  selected  and  located  as  provided  in 
the  foregoing  section  of  this  act,  and 
including  all  the  salme  lands  m  said  state, 
are  hereby  granted  to  said  state,  for 
the  use  of  said  university,  and  two  hun- 
dred thousand  acres  for  the  use  of  an 
agricultural  college  therein."  The  word 
including  modifies  the  preceding  sub- 
stantive phrase  "one  hundred  and  ten 
thousand  acres  of  land,"  and  the  mean- 
ing of  the  section  is  that  the  saline  lands 
are  to  be  contained  in  or  comprise  a  part 
of  the  110,000  acres  of  land.  The  word 
"and"  gives  in  connection  with  includ- 
ing a  quality  to  the  grant  of  110,000  acres 
which  it  would  not  have  had — the  quality 
of  selection  from  the  saline  lands  of  the 
state.  That  such  quality  would  not  exist 
unless  expressly  conferred  can  not  be 
controverted.  Under  the  applicable  stat- 
utes and  uniform  policy  of  the  govern- 
ment saline  lands  would  not  have  been 
subject  to  selection  in  satisfaction  of  the 
110.000  acre  grant  in  the  absence  of  a 
special  provision  authorizing  their  selec- 
tion. Montello  Salt  Co.  v.  Utah,  221  U. 
S.  452,  55  L.  Ed.  810,  31  S.  Ct.  706.  See 
post,  PUBLIC  LANDS. 


640 


Vol.  VI.  INDIANS. 

IN  CUSTODIA  LEGIS.— See  ante,  AttachmiJnt  and  Garnishment  p  156- 
Courts,  p.  398.  ' 

INDEMNITY.— See  the  title  Indemnity,  vol.  6.  p.  902,  and  references  there 
given.  See,  also,  ante,  Baii.  and  Recognizance,  p.  166;  Illegal  Contracts 
p.  622 ;  post.  Parties.  ' 

INDEMNITY  LANDS.— See  post,  Public  Lands. 

INDEMNITY  LIMIT.— See  post,  Public  Lands. 

INDEPENDENT  CONTRACTORS.— See  the  title  Independent  Contract- 
ors, vol.  6,  p.  904,  and  references  there  given. 

INDEX. — See  post.  Lis  Pendens. 

INDIAN  AGENT.— See  ante.  Estoppel,  p.  553 ;   post,  Indians. 

INDIAN  COMMERCE.— See  post.  Interstate  and  Foreign  Commerce 

INDIAN  COUNTRY.— See  post,  Indians;  Interstate  and  Foreign  Com- 
merce. 

INDIAN  DEPREDATION  ACT.— See  post,  Indians  ;   New  Trials. 

INDIAN  LANDS.— See  post,  Indians;    Public  Lands. 

INDIANS. 
I.  Definitions  and  General  Considerations,  642. 

C.  What   Constitutes   Indian   Country,  642. 

D.  Status  of  Nations  or  Tribes,  643. 

II.  Citizenship  of  Indians,  643. 

B.  Tribal  Citizenship,  643. 

3.  Power  of  Secretary  and  Control  of  Courts,  643. 

III.  Property  Rights,  643. 

A.  Property  Rights  of  Nations  or  Tribes,  643. 

1.  Nature  of  Indian  Title,  643.      • 

d.  Common  Right  of  Members  of  Tribe  in  Tribal  Property,  643. 

4.  Grants  by  LTnited   States  to   Indians,  643. 

b.  Construction  of  Grant,  643. 

5.  Cession  of  Lands  by  Indians  to  L'nited  States,  643. 

a.  Property    Passing,    643. 
11.  Reservation   of   Water   Rights    for   Irrigation,   643. 

B.  Individual   Property   Rights,  644. 

2.  Allotment  of  Lands  to  Indians,  644. 

a.  Persons   Entitled  to   Allotments,   644. 

(1)   Power  of  Congress  to  Provide   for  Ascertaining.  644. 
(45^)   Cherokee    Children — Rights    in   Allotments,   644. 
(6)   Necessity  for  Allottee  to  Reside  on  Reservation,  645. 
(6^)   Determination    of    Tribal    Citizenship    and    Relation, 

645. 
(9)   Vesting  of  Right  to  Patent,  646. 

c.  Sale  of  Allotment,  646. 

(1)  Right  to   Sell,   646. 

(a)  In   Absence   of   Restriction,   646. 

(b)  Restrictions  on   Sale,  646. 

aa.  Postponement    of    Right    to    Sell,    646. 

(2)  Mode  of  Sale,  647. 

(a)  Compliance   with   Statute,   647. 

(b)  Approval  by   President  or   Secretary,  647. 

e.  Actions  with  Respect  to  Allotments,  647. 

12  U  S  Enc— 41  641 


912-913  INDIANS.  Vol.  VL 

(2)    Parties,   647. 

f.  Land  Subject  to  Allotment,  648. 

g.  Designation   of    Homestead,   648. 
h.  Taxation  of  Allotmeht,  648. 

IV.  Government  of  Indians  and  Indian  Country,  649. 
A.  Power   of   United    States,   649. 
1.  In  General,  649. 

V.  Jurisdiction  over  Indians  and  Indian  Country,  649. 
A,  Criminal  Jurisdiction,   649. 

1.  Crimes  by  Indians,  649. 

a.  Crimes   on    Indian   Reservation,   649. 

(1)   Indian    Reservation    within    State,    649. 
(b)   United   States   Courts,  649. 

bb.  Crimes   against    Other    Indians,   649. 

2.  Crimes  by  Persons  Other  than  Indians,  649. 

b.  On   Indian   Reservation   within   Territory,   649. 

VI.  Taxation,  649. 

A.  Indian  Property,  649. 

XI.  Annuities   and  Appropriations,   649. 

CROSS  REFERENCES. 

See  the  title  Indians,  vol.  6,  p.  906,  and  references  there  given. 
As  to    granting  right  of    way  to  railroad    through  Indian  land  as    infringing 
rights  under  treaty  of  May  30,  1860,  see  post,  Pubuc  Lands. 

I.    Definitions  and  General  Considerations. 

C.    What  Constitutes  Indian  Country. — See  notes  16,  20. 

Act  of  July  23,  1892,  Amending  Rev.  Stat.  2139.— The  words,  "Indian 
country,"  as  used  in  the  Revised  Statutes  of  the  United  States,  §  2139,  as 
amended  and  re-enacted  by  Act  of  July  23,  1892,  c.  234,  27  Stat.  260,  forbidding 
the  introduction  of  intoxicating  liquors  into  such  country,  do  not,  standing  alone, 
embrace  territory  in  which,  at  the  time,  the  Indian  title  had  been  extinguished, 
and  over  which,  with  its  inhabitants,  the  jurisdiction  of  the  state,  for  all  pur- 
poses of  government,  was  full  and  complete. ^^^ 

912-16.   Act  of  June  30,  1834. — "The  Act  Indian   country  shall,   for  a  period   of  25- 

of  June  30,  1834,  chap.  161   (4  Stat,  at  L.  years,    apply   to   the   lands   thereby   ceded 

729),    thus    defined    'the    Indian    country.'  to  the  United  States  and  to  those  retained 

'That  all   that  part  of  the  United   States  by   the    Indians   and   to  those   allotted   to 

west    of   the    Mississippi,    and   not   within  them  in  severalty,  was  a  valid  regulation, 

the   state   of   Missouri   and   Louisiana,    or  based   upon   the    treaty-making  power   of 

the   territory  of  Arkansas,   and   also   that  the  United  States  and  upon  the  power  of 

part  of  the  United  States  east  of  the  Mis-  congress   to  regulate   commerce  with  the 

sissippi  river,  and  not  within  any  state  to  Indians,  and  was  not  an  invasion  of  the 

which   the    Indian   title   has   not  been   ex-  sovereignty  of  the  state  of  Idaho,  which 

tinguished,    for  the  purposes   of  this   act,  had  by  Act  July  3,  1890,  c.   656,  26   Stat, 

be    taken   and    deemed    to    be    the    Indian  215,   been  admitted  into  the   Union   upon 

country.' "      Clairmont    v.    United    States,  an    equal    footing   with    the    other    states. 

225   U.    S.   551,   56   L-    Ed.   1201,   32   S.    Ct.  Dick   v.   United   States,   208   U.   S.   340,   52 

787.  U.   Ed.   520,  28   S.   Ct.   399.      See  pest,   IN- 

913-20.    Continuation  in  force   of  laws  TERSTATE    AND     FOREIGN     COM- 

as   to   Indian   country    upon    cession     to  MERGE. 

United   States. — The    stipulation     in     the  913-20a.    Act   of  July  23,   1892,    c.    234, 

agreement   of   May   1,    1893,    between   the  amending    Rev.    Stat.,    §     2139. — Dick      v. 

United  States  and  the  Nez  Perce  Indians,  United   States,   208   U.    S.   340,   52    L.    Ed. 

that  the   federal  laws  prohibiting  the   in-  520,  28  S.  Ct.  309. 
troduction  of  intoxicating  liquors  into  the 

642 


Vol.  VI. 


INDIANS. 


915-924 


D.  Status  of.  Nations  or  Tribes. — Congress,  in  pursuance  of  the  long- 
established  policy  of  the  government,  has  a  right  to  determine  for  itself  when 
the  guardianship  which  has  been  maintained  over  the  Indian  shall  cease. ^'^'^ 

II.  Citizenship  of  Indians. 

B.  Tribal  Citizenship — 3.  Power  of  Secretary  and  Contrge  oe  Courts. 
— See  post,  "Determination  of  Tribal  Citizenship  and  Relation,"  III,  B,  2,  a,  6^. 

III.    Property  Rights. 

A.  Property  Rights  of  Nations  or  Tribes — 1.  Nature  of  Indian  Titee 
— d.  Common  Right  of  Members  of  Tribe  in  Tribal  Property. — See  note  50. 

4.  Grants  by  United  States  to  Indians — b.  Construction  of  Grant. — And 
such  a  grant  or  reservation  may  be  one  to  the  Indian  tribe  as  a  nation  and  also 
limited  in  point  of  time  to  the  corporate  existence  of  the  nation. ^^^ 

5.  Cession  of  Lands  by  Indians  to  United  States — a.  Property  Passing. — 
Tribal  rights  only  were  retained  by  the  Wyandotte  Indians  in  and  over  their 
cemetery,  under  Wyandotte  Treaty  Jan.  31,  1855  (10  Stat.  1159)  art.  2,  by 
which  they  ceded  their  land  to  the  United  States  for  subdivision  in  severalty  to 
the  members  of  the  tribe,  excepting  the  portion  then  inclosed  and  used  as  a  public 
burying  ground,  which  was  permanently  to  be  reserved  and  appropriated  for  that 
purpose. ^^^  The  United  States  retained  the  same  exclusive  power  over  land 
used  for  an  Indian  burying  ground,  which  was  excepted  in  "VVyandotte  Treaty 
Jan.  31,  1855  (10  Stat.  1159),  art.  2,  from  the  cession  of  the  lands  of  the  tribe 
for  subdivision  in  severalty  to  the  members,  that  it  would  have  had  if  the  tribe 
had  continued  in  existence  after  that  treaty. ^^^ 

11.  Reservation  of  Water  Rights  for  Irrigation. — A  reservation  of  the 
waters  of  Milk  River  for  irrigation  purposes  in  favor  of  the  Indians  on  the  Fort 


915-27a.  Power  of  congress  to  de- 
termine termination  of  guardianship. — 
Tiger  v.  Western  Invest.  Co.,  221  U.  S. 
286,  55  L.  Ed.  738,  31  S.  Ct.  578,  reversing 
96   P.  602,  21   Okl.  630. 

921-50.  Indian  title  is  in  tribe  not  in- 
dividual.— There  is  no  vested  interest  in 
unallotted  tribal  lands  and  undistributed 
tribal  funds.  The  lands  and  moneys  of 
an  Indian  tribe  are  public  lands  and  pub- 
lic moneys.  (1910),  Sac  and  Fox  Indians 
of  the  Mississippi  in  Iowa  v.  Sac  and  Fox 
Indians  of  the  Mississippi  in  Oklahoma, 
45  Ct.  CI.  287,  judgment  affirmed.  Sac 
and  Fox  Indians  v.  Sac  and  Fox  Indians, 
220  U.  S.  481,  55  L.  Ed.  552,  31  S.  Ct.  473. 

"Anterior  to  this  legislation  the  lands 
and  funds  belonged  to  the  tribe  as  a  com- 
munity, and  not  to  the  members  sever- 
ally or  as  tenants  in  common.  The  right 
of  each  individual  to  participate  in  the 
enjoyment  of  such  property  depended 
upon  tribal  membership  and  when  that 
was  terminated  by  death  or  otherwise  the 
right  was  at  an  end.  It  was  not  alienable 
or  descendible.  And  when  children  were 
born  into  the  tribe  they  became  thereby 
members,  and  entitled  to  all  the  rights 
incident  to  that  relation."  Gritts  v. 
Fisher,  224  U.  S.  640,  56  L.  Ed.  928,  32  S. 
Ct.   580. 

924-62a.  Reservation  or  grants  to  In- 
dian nations  or  tribes. — No  trust  in  favor 
of  the  then  existing  members  of  the  tribe 


and  their  descendants  was  created  by  let- 
ters patent  which,  following  the  language 
of  the  Choctaw  treaty  Sept.  27,  1830  (7 
Stat.  333),  art.  2,  under  the  authority  of 
which  the  patent  was  made,  granted  to  the 
Choctaw  Nation  a  tract  of  land  "in  fee 
simple,  to  them  and  their  descendants,  to 
inure  to  them  while  they  shall  exist  as  a 
nation  and  live  on  it,"  but  such  grant  was 
one  to  the  Nation  only,  limited  in  point 
of  time  to  the  corporate  existence  of  the 
nation.  Fleming  v.  McCurtain,  215  U.  S. 
56,  54  L.  Ed.  88,  30  S.  Ct.  16. 

924-68a.  Reservation  in  cession. — Con- 
ley  V.  Ballinger,  216  U.  S.  84,  54  L.  Ed. 
393,  30  S.  Ct.  224.  See,  also,  post, 
TREATIES. 

924-68b.  Extent  of  reservation  of  bury- 
ing ground. — Conley  2'.  Ballinger.  216  U. 
S.   84,   54  L.    Ed.   393,   30   S.   Ct.  224. 

An  individual  descendant  of  Wyandotte 
Indians  has  no  right,  as  against  the  United 
States,  to  the  continued  use  as  a  cemetery 
of  the  parcel  of  land  excepted  in  Wyan- 
dotte Treaty  Jan.  31,  1855  (10  Stat.  1159), 
art.  2,  ceding  the  lands  of  the  tribe  to  the 
United  States  for  subdivision  in  severalty 
to  the  members,  except  the  portion  then 
inclosed  and  used  as  a  public  burying 
ground,  which  was  permanently  to  be  re- 
served and  appropriated  for  that  purpose. 
Conley  v.  Ballinger,  216  U.  S.  84,  54  L. 
Ed.  393,  30  S.   Ct.  224. 


643 


931-933 


IXDIANS. 


Vol.  VI. 


Belknap  reservation  will  be  implied  from  the  agreement  of  May  1,  1888  (25  Stat. 
113,  c.  213),  by  which  the  Indians,  having  the  right  to  occupy  and  use  a  large 
tract  of  arid  lands,  ceded  to  the  United  States  all  those  lands  except  a  small 
tract  set  apart  as  such  reservation.^^  And  such  reservation  was  not  repealed  by 
the  admission  of  Montana  as  a  state. ^'' 

B.  Individual  Property  Rights — 2.  Allotment  of  Land  to  Indl\ns — 
a.  Persons  Entitled  to  Allotments — (1)  Power  of  Congress  to  Provide  for  As- 
certaining.— Policy  of  Congress. — During  the  last  twenty  years  congress  has 
enacted  a  series  'of  laws  looking  to  the  allotment  and  distribution  of  the  lands 
and  funds  of  the  Five  Civilized  Tribes,  of  which  the  Cherokee  tribe  is  one, 
among  their  respective  members,  and  to  the  dissolution  of  the  tribal  governments. 
An  extended  statement  of  these  laws,  so  far  as  they  concern  the  Cherokees,  as 
also  of  the  title  by  which  their  lands  and  funds  have  been  held  and  of  the  re- 
lations of  the  tribe  and  its  members  to  the  United  States,  will  be  found  in  the 
cases  cited  in  the  footnote. ^^'^ 

{4-/4)  Cherokee  Children — Rights  in  Allotments. — Children  born  to  en- 
rolled members  of  the  Cherokee  tribe  after  September  1,  1902,  though  expressly 
excluded  by  the  Act  of  July  1,  1902,  from  enrollment  or  participation  in  the  dis- 
tribution of  the  tribal  property,  were,  if  living  on  March  4,  1906,  embraced  by 
tlie  provision  of  the  Act  of  April  26,  1906,  §  2,  as  amended  by  the  Act  of  June 
21,  1906,  for  the  enrollment  of  "children  who  were  minors  living  ]March  4, 
1906."^''^  The  vested  rights  of  original  allottees  are  not  impaired  by  legislation 
admitting  newly  born  Cherokee  children.!'^'' 


931-8a.  Reservation  of  water  rights  for 
irrigation. — Winters  v.  United  States,  207 
U.    S.   564,   52   L.    Ed.   340,  28   S.   Ct.   207. 

931-8b.  Effect  of  admission  of  Montana 
as  a  state. — The  reservation  of  the  waters 
of  Milk  river  for  irrigation  purposes,  im- 
plied in  favor  of  the  Indians  on  the  Fort 
Belknap  reservation  from  the  agreement 
of  May  1,  1888  (25  Stat.  113,  c.  213),  in 
which  the  Indians  ceded  to  the  United 
States  all  their  lands  except  a  small  tract 
set  apart  as  such  reservation,  was  not  re- 
pealed by  the  admission  of  Montana  into 
the  Union  by  Act  Feb.  22,  1889,  c.  180,  25 
Stat.  676,  on  an  equal  footing  with  the 
original  states.  Judgment  (1906),  148  F. 
684,  78  C.  C.  A.  546,  affirmed.  Winters  v. 
United  States,  207  U.  S.  564,  52  L.  Ed. 
340,  28   S.   Ct.  207. 

932-lOa.  Policy  of  congress. — Gritts  v. 
Fisher,  224  U.  S.  640,  56  L.  Ed.  928,  32  S. 
Ct.  580,  citing  Stephens  v.  Cherokee  Na- 
tion, 174  U.  S.  445,  43  L.  Ed.  1041,  19  S. 
Ct.  722;  Cherokee  Nation  v.  Hitchcock, 
187  U.  S.  294,  47  L.  Ed.  183,  23  S.  Ct.  115; 
Cherokee  Intermarriage  Cases,  203  U.  S. 
76,  51  L.  Ed.  96,  27  S.  Ct.  29;  Lowe  v. 
Fisher,  223  U.  S.  95,  56  L.  Ed.  364,  32  S. 
Ct.  196.  and  Heckman  r.  United  States, 
224  U.  S.  413,  56  L.   Ed.  820,  32   S.  Ct.  424. 

The  Steenerson  Act  of  April  28,  1904, 
providing  for  the  allotment  of  lands  to 
the  Chippewa  Indians  on  the  White  Res- 
ervation, was  part  of  a  general  congres- 
sional scheme,  and  modified  and  changed 
the  prior  Acts  of  February  8,  1887,  Jan- 
uary 14,  1889,  and  February  28,  1891,  by 
superseding   certain   of    their     provisions 


and  enlarging  the  quantity  of  land  to  be 
allotted.  Fairbanks  v.  United  States,  223 
U.  S.  215,  56  L.  Ed.  409,  32  S.  Ct.  292. 

'"Under  treaties  with  the  United  States 
the  tribe  maintained  a  government  of  its 
own,  with  legislative  and  other  powers, 
but  this  was  a  temporary  e.xpedient,  and 
in  time  proved  inefficient  and  unsatisfac- 
tory. As  in  the  instance  of  other  tribal 
Indians,  the  members  of  this  tribe  were 
wards  of  the  United  States,  which  was 
fully  empowered,  whenever  it  seemed 
wise  to  do  so,  to  assume  full  control  over 
them  and  their  afifairs,  to  determine  who 
were  such  members,  to  allot  and  dis- 
tribute the  tribal  lands  and  funds  among 
them,  and  to  terminate  the  tribal  govern- 
ment." Gritts  V.  Fisher,  224  U.  S.  640, 
56    L.    Ed.   928,   32   S.    Ct.   580. 

933-17a.  Cherokee  children. — Gritts  v. 
Fisher,  224  U.  S.  640,  56  L.  Ed.  928,  32  S. 
Ct.   580. 

933-17b.  Effect  of  admission — Newly- 
born  children. — Vested  rights  of  members 
of  the  Cherokee  tribe  living  on  Septem- 
ber 1,  1902,  and  enrolled  under  the  Act 
of  July  1,  1902,  to  participate  in  the  allot- 
ment and  distribution  of  the  remaining 
tribal  lands  and  funds,  were  not  de- 
stroyed, their  individual  allotments  not  be- 
ing afifected,  by  the  provision  of  the  Act 
of  April  26,  1906,  §  2,  as  amended  by  the 
Act  of  June  21,  1906.  for  admitting  newly- 
born  members  of  the  tribe  to  the  allot- 
ment and  distribution  from  which  they 
were  excluded  by  the  earlier  act  if  born 
after  September  1,  1902.  Gritts  v.  Fisher, 
224  U.  S.  640,  56  L.  Ed.  928,  32  S.  Ct.  580. 


644 


Vol.  \1. 


INDIANS. 


934 


(6)  Necessity  for  Allottee  to  Reside  ou  Reservation.— An  Indian  need  not 
have  been  on  the  reservation  at  the  instant  when  the  Act  of  February  28,  1891, 
amending  the  General  Allotment  Act  of  February  8,  1887,  was  passed,  in  order 
to  avail  himself  of  the  benefit  of  the  provision  of  the  latter  act  giving  to  each 
Indian  "located"  thereon  one-eighth  section  of  land.^o^ 

(6>^)  Determination  of  Tribal  Citizenship  and  Relation.— kutYioriiy  and 
Power  of  Secretary  of  Interior.— The  revisory  and  corrective  power  of  the 
secretary  of  the  interior  over  Indian  allotments  and  his  authority  and  power  to 
strike  the  names  of  the  allottees  from  approved  rolls  depends  entirely  upon  the 
statutes  existing  at  the  time.^'*'^  And  the  courts  have  power  to  control  his  action 
in  this  regard  by  mandamus.2o<=  And  a  subsequent  roll  of  allottees  conformable 
to  the  law  may  supersede  a  prior  roll. 2"'' 


934-20a.  Necessity  for  allottee  to  reside 
on  reservation. — Fairbanks  v.  United 
States,  223  U.  S.  215,  56  L.  Ed.  409,  32  S. 
Ct.    292. 

934-20b.  The  revisory  and  corrective 
power  of  the  secretary  of  the  interior 
over  Indian  allotments  under  the  Acts  of 
March  3.  1905,  and  April  26,  1906,  in- 
cludes the  right,  upon  notice  and  hearing, 
to  strike  from  the  approved  roll  of  citi- 
zens of  the  Five  Civilized  Tribes  of  the 
names  of  Cherokee  freedmen  allottees  be- 
cause their  ancestors  had  not  returned  to 
the  Cherokee  Nation  within  the  time 
designated  by  a  treaty  stipulation,  al- 
though, by  the  Act  of  July  1,  1902,  §  29, 
"when  there  shall  have  been  submitted  to 
and  approved  by  the  secretary  of  the  in- 
terior lists  embracing  the  names  of  all 
those  lawfully  entitled  to  enrollment,  the 
roll  shall  be  deemed  complete."  Lowe  :'. 
Fisher,  223  U.  S.  95,  56  L.  Ed.  364,  32  S. 
Ct.    196. 

The  enrollment  of  Cherokee  freedmen 
on  the  tribal  rolls  is  not  to  be  taken  as 
absolutely  confirmed  by  the  confirmatory 
provision  of  the  Act  of  June  10,  1896  (29 
Stat,  at  L.  321,  chap.  398),  in  view  of  the 
requirements  of  the  subsequent  Acts  of 
June  28,  1898  (30  Stat,  at  L.  495,  chap. 
517),  §  1.  July  1,  1902  (32  Stat,  at  L.  716, 
chap.  1375),  §  27,  and  April  26,  1906  (34 
Stat,  at  L.  137,  chap.  1876),  §  3,  that  a  roll 
of  Cherokee  freedmen  be  made  in  strict 
compliance  with  a  decree  of  the  court  of 
claims,  so  as  to  exclude  freedmen  and 
their  descendants  who  had  not  returned 
to  the  Cherokee  Nation  witliin  the  time 
designated  by  the  treaty  stipulation.  Lowe 
V.  Fisher,  223  U  S.  95,  56  L.  Ed.  364,  32 
S.    Ct.    196. 

Erasure  of  name  from  approved  roll  of 
allottees. — The  secretary  of  the  interior  is 
without  authority  to  erase  from  the  ap- 
proved rolls  of  citizenship  in  the 
Choctaw  and  Chickasaw  Nations,  without 
notice  or  hearing,  the  name  of  one  who 
has  received  an  allotment  certificate  and 
is  in  possession  of  the  land.  Garfield  v. 
Goldsby.  211  U.  S.  249,  53  L.  Ed.  168,  29 
S.    Ct.   62,   affirming  30   App.   D.     C.      177; 


Garfield   v.   Allison,   211    U.    S.   264,    53   L. 
Ed.  176,  29  S.  Ct.  67. 

The  cancellation  of  Indian  allotments 
by  the  secretary  of  the  interior  after  re- 
peated changes  in  views  and  decisions  in 
the  department  can  not  be  said  to  have 
been  ordered  without  notice  and  oppor- 
tunity to  be  heard,  where  the  proceed- 
ings leading  up  to  such  action  were  single 
and  continuous,  at  one  time  one  party 
prevailing,  and  at  other  times  the  other 
party,  the  first  party  finally  succeeding. 
Fairbanks  v.  United  States,  223  U.  S.  215, 
56   L.    Ed.   409,   32   S.   Ct.   292. 

934-20C,  Mandamus. — As  to  mandamus 
as  remedy  where  secretary  of  interior  has 
erased  name  of  allottee  from  rolls  of  citi- 
zenship in  Indian  nations,  see  post,  MAN- 
DAMUS. 

The  fact  that  the  legal  title  to  allottable 
Indian  lands  is  still  in  the  government 
does  not  defeat  the  jurisdiction  of  a 
court  over  a  suit  to  compel  the  secretary 
of  the  interior  to  undo,  as  wholly  unwar- 
ranted and  unauthorized  by  law,  his  ac- 
tion in  summarily  erasing  from  the  ap- 
proved rolls  of  citizenship  in  the  Choctaw 
and  Chickasaw  Nations  the  name  of  one 
who  has  received  an  allotment  certificate 
and  is  in  possession  of  the  land.  Judg- 
ment (1907),  30  App.  D.  C.  177.  affirmed. 
Garfield  v.  Goldsby,  211  U.  S.  249,  53  L. 
Ed.  168,  29  S.  Ct.  62;  Garfield  v.  Allison, 
211  U.  S.  264,  53  L.  Ed.  176,  29  S.  Ct. 
67.     See  post,  MANDAMUS. 

934-20d.  Superseding  former  roll. — The 
roll  of  tlie  Cherokee  freedmen.  made  by 
administrative  officers  under  instructions 
frotn  the  court  of  claims,  which,  under 
the  Act  of  October  1,  1890,  had  determined 
the  rights  of  such  freedmen  in  the  tribal 
propertj',  was  superseded  by  the  roll 
made  by  the  ,Daws  commission  con- 
formably to  the  provisions  of  the  subse- 
quent Acts  of  June  28,  1898,  and  July  1, 
1902,  directing  such  commission  to  make 
a  roll  of  Cherokee  freedmen  in  strict  com- 
pliance with  the  decree  of  the  court  of 
claims.  Cherokee  Nation  v.  Whitmire,  223 
U.  S.  108,  56  L.  Ed.  370,  32  S.  Ct.  200. 


015 


935-936 


INDIANS. 


Vol.  VI. 


(9)  Vesting  of  Right  to  Patent. — When  an  Indian  allottee's  right  to  a  patent 
became  vested,  it  could  not  thereafter  be  interfered  with  by  the  secretary  of  the 
interior,  in  an  unlawful  attempt  to  cancel  the  allotment. ^'^^ 

c.  Sale  of  Allotment — (1)  Right  to  Sell — (a)  In  Absence  of  Restriction. — Of 
course  when  no  restriction  against  alienation  was  operative  a  conveyance  was 
valid  and  passed  all  title  or  interest  according  to  the  nature  of  the  deed.-^^ 

Heirs  of  Allottee. — The  heirs  of  a  deceased  Indian  allottee  under  the  supple- 
mental agreement  of  July  1,  1902,  with  the  Choctaws  and  Chickasaws,  have  a 
complete  equitable  interest  which,  in  the  absence  of  restrictions,  they  may  con- 
vey before  patent.-*"^ 

(b)  Restrictions  on  Sale — aa.  Postponement  of  Right  to  Sell. — Extension  of 
Inalienability  Period. — Congress  could  lawfully  enact  the  provisions  of  the  Act 
of  April  26,  1906  (34  Stat,  at  L.  137,  chap.  1876),  §  19,  extending  the  period  of 
inalienability  fixed  by  the  Act  of  July  1,  1902  (32  Stat,  at  L.  716,  chap.  1375), 
§§  11-15,  with  respect  to  lands  allotted  to  the  Cherokee  Indians  of  the  full 
blood.  ^'^^ 

Operation  and  Effect  of  Conveyance. — A  conveyance  made  during  the  in- 
alienability period  is  invalid  and  may  be  set  aside  by  the  federal  government.^^'' 
In  some  cases  conveyance  made  prior  to  patent  were  invalid. ^'^'^ 


935-24a.    Vesting   of  right   to   patent.— 

Where  an  enrolled  member  of  the  Choc- 
taw Nation,  entitled  to  share  in  the  al- 
lotment of  tribal  lands,  selected  as  her 
allotment  a  40-acre  lot  on  which  were 
her  buildings  and  improvements,  and  re- 
ceived a  certificate  of  allotment  from  the 
tribal  commission,  after  the  expiration  of 
the  time  prescribed  for  contest,  no  con- 
test having  been  made,  and  afterwards  re- 
ceived a  patent  therefor  from  the  chief 
authorities  of  the  Choctaw  and  Chicka- 
saw Nations,  her  right  to  a  patent  be- 
came vested,  and  the  secretary  of  the 
interior  could  not  thereafter,  as  he  at- 
tempted to  do,  segregate  the  land  for 
townsite  purposes,  as  having  been  under 
urban  occupancy,  and  cancel  her  allot- 
ment, with  leave  to  select  other  lands  in 
lieu  thereof.  Judgment  Garfield  z'.  United 
States  (1907),  30  App.  D.  C.  165,  affirmed. 
Ballinger  v.  Frost,  216  U.  S.  240,  54  L. 
Ed.  464.  30  S.  Ct.  338,  See,  also,  post, 
PUBLIC  LANDS. 

936-26a.  Absence  of  restriction.— The 
removal  by  the  Act  of  April  21,  1904,  of 
restrictions  upon  alienation  of  lands  of 
all  allottees  of  either  of  the  five  civilized 
tribes  not  of  Indian  blood,  except  minors, 
and  except  as  to  homesteads,  left  adult 
Seminole  freedmen  allottees,  under  the 
Act  of  July  1,  1898,  free  thereafter  to 
convey  before  patent  the  surplus  lands 
allotted  to  them  in  severalty  under  that 
act.  Goat  v.  United  States,  224  U.  S.  458, 
56  L.  Ed.  841,  32  S.  Ct.  544. 

936-26b.  Heirs  of  allottee.— Mullen  v. 
United  States,  224  U.  S.  448,  56  L.  Ed.  834, 
32  S.  Ct.  494. 

The  restrictions  upon  alienation  by  the 
heirs  of  an  Indian  allottee  of  the  land 
allotted  in  excess  of  that  designated  as  a 
homestead,  made  by  paragraph  16  of  the 


supplemental  agreement  of  July  1,  1902, 
with  the  Choctaws  and  Chichasaws,  are 
not  applicable  where  a  person  whose  name 
appeared  upon  the  rolls  died  after  the 
ratification  of  the  agreement,  and  before 
receiving  the  allotment,  in  which  case 
provision  was  made  in  paragraph  22  for 
allotment  in  the  name  of  the  deceased  per- 
son, and  for  the  descent  of  the  land  to  his 
heirs,  with  no  requirement  for  the  selec- 
tion of  any  portion  of  the  allotted  lands 
as  a  homestead.  Mullen  v.  United  States, 
224   U.   S.  448,  56  L.   Ed.  834,  32   S.   Ct.  494. 

936-27a.  Extension  of  inalienability 
'  period. — Heckman  v.  United  States,  224 
U.   S.  413,  56  L.   Ed.  820,  32  S.   Ct.  424. 

936-27b.  Operation  and  effect  of  con- 
veyance.— Conveyances  by  Seminole  freed- 
men of  lands  allotted  to  them  in  severalty 
for  homesteads  under  the  Act  of  July  1, 
1898  (30  Stat,  at  L.  567,  chap.  542), 'ex- 
ecuted before  the  provisions  of  the  Act 
of  May  27,  1908  (35  Stat,  at  L.  312,  chap. 
199),  removing  the  restrictions  upon  the 
alienation  of  such  lands,  became  opera- 
tive, were  invalid,  and  the  federal  govern- 
ment is  entitled  to  have  them  set  aside. 
Goat  V.  United  States,  224  U.  S.  458,  56 
L.   Ed.   841,  32  S.   Ct.   544. 

Conveyances  of  surplus  lands  by  adult 
Seminole  freedmen  allottees  under  the 
Act  of  July  1,  1898,  executed  before  pat- 
ent, and  prior  to  the  Act  of  April  21,  1904 
(33  Stat,  at  L.  189,  chap.  1402),  removing 
restrictions  on  alienation,  are  invalid,  as 
are  also  conveyances  by  such  allottees 
being  minors,  and  expressly  excepted 
from  the  provisions  of  that  act.  Goat  v. 
United  States,  224  U.  S.  458,  56  L.  Ed.  841. 
32    S.    Ct.    544. 

936-27C.  Conveyance  prior  to  patent. — 
The  mere  authorization  by  the  Act  of 
April   26,    1906    (34   Stat,    at   L.    138,    chap. 


646 


Vol.  VI. 


INDIANS. 


936 


(2)  Mode  of  Sale — (a)  Compliance  with  Statute. — The  consent  of  an  In- 
dian allottee  to  sale  of  Indian  land  not  required  for  their  homes  survives  his 
decease.^  °^ 

(b)  Approval  by  President  or  Secretary. — See  note  32.  Restrictions  in  a  pat- 
ent of  timber  land  to  an  Indian  upon  the  sale,  lease,  or  alienation  of  the  tract 
conveyed  without  the  consent  of  the  president  extend  to  the  sale  of  the  timber  on 
such  tract. ^^'^ 

e.  Actions  zvith  Respect  to  Allotments — (2)  Parties. — The  Indian  grantors 
are  not  necessary  parties  to  a  suit  by  the  United  States  to  cancel  conveyances  of 


1876),  of  the  execution  of  the  patents  to 
Seminole  allottees  under  the  Act  of  July 
1,  1898,  before  the  tribal  government 
ceased  to  exist,  when,  by  virtue  of  the 
earlier  act,  the  allottee  were  to  receive 
their  deeds,  did  not  operate  as  a  repeal 
of  the  explicit  provisions  of  that  act  mak- 
ing invalid  all  contracts  for  the  sale,  dis- 
position, or  encumbrance  of  any  part  of 
any  allotment  made  prior  to  the  date  of 
patents.  Goat  v.  United  States.  224  U. 
S.  458,  56  L.  Ed.  841,  32  S.  Ct.  544. 

Conveyances  by  the  heirs  of  an  Indian 
allottee  under  the  supplemental  agree- 
ment of  July  1,  1902,  with  the  Choctaws 
and  Chickasaws,  whose  ancestor  died 
after  the  ratification  of  the  agreement  and 
before  reviewing  his  allotment,  not  being 
under  restriction,  can  not  be  held  invalid 
because  made  before  the  issuance  of  a 
patent,  in  view  of  the  provision  of  the 
Act  of  April  26,  1906  (34  Stat,  at  L.  144, 
chap.  1876),  §  19,  subsequently  enacted, 
that  conveyances  theretofore  made  by 
members  of  any  of  the  Five  Civilized 
Tribes  subsequent  to  the  selection  of 
allotment  and  to  the  removal  of  restric- 
tions, where  patents  thereafter  issue,  shall 
not  be  held  invalid  solely  because  such 
conveyances  were  made  prior  to  the 
patent.  Mullen  v.  United  States,  224  U. 
S.   448,   56   L.    Ed.   834,   32   S.   Ct.   494. 

936-30a.  The  consents  of  the  Puyallup 
Indian  allottees  and  owners  to  the  sale  of 
such  portion  of  the  lands  allotted  to  them 
under  the  treaty  with  the  Omahas  as  was 
not  required  for  their  homes,  when  given 
and  approved  conformably  to  the  Act  of 
March  3,  1893,  must  be  deemed  to  survive 
their  decease,  in  view  of  the  provision  of 
the  act  that  such  consents  should  make  the 
commissioner  appointed  thereunder  trus- 
tee to  sell  the  lands  and  make  deeds  to 
the  purchasers  for  the  same,  subject  to 
approval  of  the  secretary  of  the  interior, 
which  deeds  should  operate  as  a  coinplete 
conveyance  of  the  land  upon  the  full  pay- 
ment of  the  purchase  money.  Jacobs  v. 
Prichard,  223  U.  S.  200,  56  L.  Ed.  405,  32 
S.    Ct.    289. 

936-32.  Approval  of  president  or  secre- 
tary.— The  approval  by  the  commissioner 
of  Indian  affairs  of  a  contract  for  the  sale 
of  timber  by  an  Indian  allottee,  which, 
under  the  rules  and  regulations  estab- 
lished  by   the   president   on   December   6, 


1893,  pursuant  to  article  3  of  the  treaty 
with  the  Chippewa  Indians  of  September 
30,  1854  (10  Stat.  1110),  was  to  "operate 
as  specific  consent  of  the  executive  to  the 
sale  of  the  timber  to  which  the  contract 
relates,"  did  not  end  the  authority  of  the 
president,  so  as  to  prevent  a  modification 
of  the  contract  by  making  it  subject  to  an 
amendment  of  those  rules,  giving  the  In- 
dian agent,  subject  to  the  approval  of  the 
commissioner  of  Indian  affairs,  authority 
to  fix  the  sums  which  an  allottee  should 
be  permitted  to  withdraw  from  the  pro- 
ceeds of  the  timber  deposited  in  a  na- 
tional bank.  Starr  v.  Campbell,  208  U.  S. 
527,   52   L.   Ed.   602,  28   S.   Ct.   365. 

Alienation  by  Creeks. — The  prohibition 
against  the  alienation  of  allotted  lands  by 
the  allottee  or  his  heirs,  without  the  ap- 
proval of  the  secretary  of  the  interior, 
created  by  the  supplemental  Creek  agree- 
ment of  June  30,  1902  (32  Stat,  at  L.  500, 
chap.  1323),  was  continued,  as  to  convey- 
ances by  full-blooded  Indian  heirs,  be- 
yond the  five-year  limitation  therein  ex- 
pressed, by  the  Act  of  April  26,  1906  (34 
Stat,  at  L.  137,  chap.  1876),  which,  in  §  22, 
after  empowering  adult  heirs  of  a  de- 
ceased Indian  of  either  of  the  five  civilized 
tribes  to  convey  their  inherited  lands, 
provided  that  "all  conveyances  made  un- 
der this  provision  by  heirs  who  are  full- 
blooded  Indians  are  to  be  subject  to_  the 
approval  of  the  secretary  of  the  interior," 
and  in  §  29  repealed  all  inconsistent  leg- 
islation. Tiger  V.  Western  Invest.  Co., 
221  U.  S.  286,  55  L.  Ed.  738,  31  S.  Ct.  578. 

The  rights  of  the  Creek  Indians  in  the 
Indian  territory  who  were  made  citizens 
of  the  United  States  by  the  Act  of  March 
3,  1901  (31  Stat,  at  L.  1447,  chap.  868), 
with  all  of  the  rights,  privileges,  and  im- 
munities of  such  citizens,  were  not  un- 
constitutionally impaired  by  the  Act  of 
April  26.  1906,  §  22,  extending  the  pro- 
hibition against  the  alienation  of  allotted 
lands  by  the  allottee  or  his  heirs  without 
the  approval  of  the  secretary  of  the  in- 
terior, created  by  the  supplemental  Creek 
agreement  of  June  30,  1902,  beyond  the 
five-year  limitation  therein  expressed. 
Tiger  v.  Western  Invest.  Co.,  221  U.  S. 
286,  55  L.   Ed.  738,  31   S.  Ct.  578. 

936-32a.  Extent  of  restriction. — Starr  v. 
Campbell,  208  U.  S.  527,  52  L.  Ed.  602, 
28   S.   Ct.   365. 


647 


938-939 


INDIANS. 


Vol.  VI. 


allotted  lands  by  members  of  the  Cherokee  or  Choctaw  Nations,  upon  the  ground 
that  they  were  in  violation  of  existing  restrictions  upon  the  power  of  alienation.^ ^a 
Right  of  United  States  to  Sue. — The  United  States  must  be  deemed  to  have 
the  right  to  invoke  the  equity  jurisdiction  of  its  courts  to  cancel  conveyances  of 
allotted  lands  made  by  Choctaw  Indians,  upon  the  ground  that  they  were  in  vio- 
lation of  existing  restrictions  upon  the  power  of  alienation,  in  view  of  the  pecu- 
liar relationship  of  the  United  States  to  the  Indians,  and  of  the  explicit  recogni- 
tion by  congress  in  the  Act  of  May  27,  1908  (35  Stat,  at  L.  312,  chap.  199),  of 
the  right  of  the  government  to  enforce  these  restrictions  by  suit,  and  of  the  ap- 
propriation made  in  that  and  later  acts  for  the  maintenance  of  such  suits.* ^b 

f.  Land  Subject  to  Allotment. — Pine  lands  were  subject  to  allotment  among 
the  Indians  residing  upon  the  White  Earth  Reservation.'*'*'' 

g.  Designation  of  Homestead. — The  requirement  of  paragraph  12  of  the  sup- 
plemental agreement  of  July  1,  1902  (32  Stat,  at  L.  641,  chap.  1362),  with  the 
Choctaws  and  Chickasaws,  that  each  Indian  allottee  shall  designate  a  portion  of 
his  allotment  as  a  homestead,  does  not  extend  to  cases  where  a  person,  whose 
name  appeared  upon  the  rolls,  died  after  the  ratification  of  the  agreement,  and 
before  receiving  his  allotment,  in  which  cases  the  act  especially  provides  in  para- 
graph 22  for  allotment  in  the  name  of  the  deceased  person,  and  for  the  descent 
of  the  land  to  his  heirs.*'*" 

h.  Taxation  of  Allotment. — A  tax  exemption,  and  not  merely  an  additional 
guard  against  alienation,  which  would  fall  when  the  restrictions  on  alienation 
were  removed,  was  made  by  the  Act  of  June  28,  1898,  under  which  the  lands 
allotted  in  severalty  under  that  act  to  the  members  of  the  Choctaw  and  Chicka- 
saw tribes  were  subjected  to  various  restrictions  on  alienation,  and  were  to  be 
nontaxable  while  the  title  remained  in  the  original  allottees.**^  Such  right  of 
exemption    was  a  vested  right  protected  by    the  United   States  constitution.**"* 


938-42a.  Parties. — Mullen  v.  United 
States,  224  U.  S.  448,  56  L.  Ed.  834,  32  S. 
Ct.  494;  Heckman  v.  United  States,  224 
U.  S.  413,  56  L.  Ed.  820,  32  S.  Ct.  424.  See, 
also.  post.  PARTIES. 

938-42b.  Right  of  United  States  to  sue. 
—Mullen  V.  United  States,  224  U.  S.  448, 
56  L.  Ed.  834,  32  S.  Ct.  494;  Heckman  v. 
United  States,  224  U.  S.  413,  56  L.  Ed.  820, 
32   S.   Ct.   424. 

939-44a.  Pine  lands. — Nothing  contained 
in  the  General  Allotment  Act  of  February 
8,  1887  (24  Stat,  at  L.  388,  chap.  119),  nor 
the  Amendatory  Act  of  February  28,  1891 
(26  Stat,  at  L.  794,  chap.  383),  which  would 
forbid  the  allotment  of  pine  lands,  was 
imported  into  the  Steenerson  Act  of  April 
28,  1904  (33  Stat,  at  L.  539,  chap.  1786), 
providing  for  allotments  to  the  Chippewa 
Indians  residing  upon  the  White  Earth 
Reservation  by  the  provision  of  that  act 
that  "the  allotment  shall  be,  and  the  pat- 
ent issued  therefor,  in  the  manner  and 
having  the  same  effect  as  provided  in  the 
General  Allotment  Act."  the  later  act  be- 
ing very  direct  as  to  quantity,  and  con- 
taining no  qualifications  as  to  the  char- 
acter of  the  land  to  be  allotted.  Fairbanks 
V.  United  States,  223  U.  S.  215,  56  L.  Ed. 
409,   32   S.    Ct.   292. 

939-44b.  Designation  of  homestead. — 
Mullen  V.  United  States,  224  U.  S.  448,  56 
L.  Ed.  834,  32  S.  Ct.  494. 


939-44C.     Exemption     from     taxation.— 

Choate  v.  Trapp,  224  U.  S.  665,  56  L.  Ed. 
941,  32  S.  Ct.  565.  See,  generally,  post, 
TAXATION. 

939-44d.  Exemption — A  vested  right. — 
Choctaw  and  Chickasaw  allottees  under 
the  Atoka  agreement  embodied  in  the 
Act  of  June  28,  1898,  under  which,  in  part 
consideration  of  their  relinquishment  of 
all  claim  to  the  tribal  property,  they  were 
to  receive  allotincnts  of  the  lands  in 
severalt3^  which  were  to  be  nontaxable 
for  a  specified  period  while  the  j;itle  re- 
mained in  the  original  allottees,  acquired 
vested  rights  of  exemption  from  state 
taxation,  protected  by  the  U.  S.  Const., 
5th  Amend.,  from  abrogation  during  that 
period,  as  was  attempted  by  the  Act  of 
May  27,  1908  (35  Stat,  at  L.  312,  chap. 
199),  removing  the  restrictions  upon 
alienation,  and  providing  that  lands  from 
which  such  restrictions  had  been  removed 
should  be  subject  to  taxation.  Choate  v. 
Trapp,  224  U.  S.  665,  56  L.  Ed.  941,  32  S. 
Ct.    565. 

A  Creek  homestead  allottee  under  an 
agreement  incorporated  in  congressional 
legislation  by  which,  in  part  consideration 
of  the  relinquishment  by  the  Indians  of 
their  claim  to  the  tribal  property,  they 
were  to  receive  homestead  allotments 
which  should  be  nontaxable  and  inalien- 
able   for    a    specified    period,    acquired    a 


648 


Vol.  VI. 


INDIANS. 


939-952 


Any  doubt  as  to  whether  the  tax  exemption  was  a  personal  privilege,  and  re- 
pealable,  or  an  incident  attached  to  the  land  itself  for  a  limited  period,  must  be 
resolved  in  favor  of  the  patentees.^-**" 

IV.    Government  of  Indians  and  Indian  Country. 

A.  Power  of  United  States— 1.  In  General.— An  intention  to  repeal  the 
existing  federal  laws  and  regulations  respecting  the  Indians  can  not  be 
gathered  from  the  proviso  in  an  enabling  act  reserving  to  the  government  of  the 
United  States  the  authority  to  make  laws  and  regulations  in  the  future  respect- 
ing such  Indians.^*^'^ 

V.    Jurisdiction  over  Indians  and  Indian  Country. 

A.  Criminal  Jurisdiction— 1.  Crimes  by  Indians — a.  Crimes  on  Indian 
Reservation— {\)  Indian  Reservation  zcithin  State— (h)  United  States  Courts— 
bb.  Crimes  against  Other  Indians. — See  note  90. 

2.  _  Crimes  by  Persons  Other  than  Indians— b.  On  Indian  Reservation 
within  Territory. — See  note  12. 

VI.  Taxation. 

A.  Indian  Property. — As  to  exemption  of  allotment  from  taxation,  its  na- 
ture as  a  vested  right,  etc..  see  ante,  "Taxation  of  Allotment,"  III,  B,  2,  h. 

XI.  Annuities  and  Appropriations. 
Apportionment  between  Bands. — Where  the  evidence  does  not  show  how 


vested  right  to  exemption  from  state  taxa- 
tion, protected  by  the  federal  constitu- 
tion against  abrogation  by  congress  dur- 
ing  that  period.  English  z:  Richardson, 
224  U.   S.  680,  56  L.   Ed.   949,  32   S.   Ct.  571. 

939-44e.  Doubt  resolved  in  favor  of 
patentees. — Choate  v.  Trapp,  224  U.  S. 
665.   56  L-   Ed.  941,  :',2   S.  Ct.  565. 

943-66a.  Intention  repeal  existing  fed- 
eral laws.— Ex  parte  Webb,  225  U.  S.  663, 
56   L.    Ed.    1248,   32    S.    Ct.   769. 

948-90.  Effect  of  Act  of  1885.— Crimes 
committed  by  one  Indian  upon  the  person 
of  another  within  the  limits  of  the  Tulalip 
Reservation,  in  the  state  of  Washington, 
are  not  excepted  from  the  exclusive  juris- 
diction of  the  federal  courts,  under  Act 
March  3,  1885,  c.  341,  §  9,  23  Stat.  385,  be- 
cause both  parties  hold  patents  from  the 
United  States,  issued  under  the  authority 
of  the  treatj^  with  the  Omahas  of  March 
16,  1854  (10  Stat.  1043),  and  the  treaty 
of  Point  Elliott  of  January  22,  1855  (12 
Stat.  927),  and  are  therefore,  by  virtue  of 
Act  Feb.  8,  1887,  c.  119,  §  6,  24  Stat.  388, 
citizens  of  the  United  States.  United 
States  V.  Celestine,  215  U.  S.  278,  54  L. 
Ed.   195,  30   S.   Ct.   93. 

Land  within  the  Tulalip  Indian  Reser- 
vation, in  the  state  of  Washingtoir,  al- 
lotted and  patented  in  severalty,  pursuant 
to  the  treaty  with  the  Omahas  of  March 
16,  1854,  10  Stat.  1043,  and  the  treaty  of 
Point  Elliott  of  January  22,  1855.  12  Stat. 
927,  which  provide  for  a  conditional  aliena- 
tion only,  is  not,  by  reason  of  such  allot- 
ment and  patent,  excepted  from  the  reser- 


vation, so  as  to  defeat  the  exclusive  ju- 
risdiction of  the  federal  courts  under  Act 
:\Iarch  3,  1885,  c.  341,  §  9,  23  Stat.  385,  of 
crimes  committed  on  such  land  by  one 
Indian  upon  the  person  of  another. 
United  States  v.  Celestine,  215  U.  S.  278, 
54  L.   Ed.   195,  30   S.   Ct.   93. 

952-12.  Crimes  by  person  other  than  In- 
dians on  Indian  reservation  within  terri- 
tory.— The  murder  of  one  negro  by  an- 
other within  the  limits  of  an  Indian  reser- 
vation in  a  territory  is  committed  within 
a  place  or  district  under  the  exclusive  ju- 
risdiction of  the  United  States,  within  the 
meaning  of  Rev.  St.,  §  5339  (U.  S.  Comp. 
St.  1901,  p.  3627),  defining  and  punishing 
the  crime  of  murder,  as  amended  by  Act 
January  15,  1897,  c.  29,  29  Stat.  487  (U.  S. 
Comp.  St.  1901,  p.  3620).  and  extended  by 
§  2145  to  the  Indian  country,  when  not 
within  the  exceptions  made  by  §  2146, 
which,  by  reason  of  the  race  of  the  ac- 
cused and  deceased,  do  not  apply.  Pickett 
z:  United  States,  216  U.  S.  456,  54  L.  Ed. 
566.  30  S.  Ct.  265. 

The  murder  of  one  negro  by  another 
within  the  limits  of  the  Osage  Indian 
teservation  subsequent  to  the  Oklahoma 
enabling  act  (Act  June  16,  1906,  c.  3335, 
34  Stat.  267),  but  prior  to  the  admission 
of  that  state  into  the  Union,  is  justiciable, 
after  such  admission,  in  the  district  court 
of  the  United  States  for  the  Western  Dis- 
trict of  Oklahoma,  under  §  14  of  that  act 
(34  Stat.  275  [U.  S.  Comp.  St.  Supp.  1909, 
p.  155]),  providing  for  the  transfer  of  ju- 
risdiction in  respect  of  all  crimes  against 


649 


960 


INDIANS. 


Vol.  VI. 


much  of  a  gross  sum  went  to  each  band  of  Indians,  one-half  of  the  gross  amount 
should  be  charged  to  each."^^'' 

Sioux  Annuities  Restored. — When  the  Sioux  annuities  were  restored  the 
court  of  claims  was  authorized  to  ascertain  the  amount  due  after  setting  off  all 
amounts  properly  chargeable  against  such  annuities,   for  which  see  footnote.^^'' 

Indians  Entitled  to  Participate. — Where  individual  Indians  voluntarily  and 
without  the  consent  of  the  United  States  withdrew  from  the  reservation  which 
had  been  provided  for  the  tribe,  they  ceased  to  be  a  legal  entity  or  part  of  the 
entity  and  became  simply  individual  Indians,  and  must  return  to  their  reserva- 
tion in  order  to  participate  in  an  annuity.^^*^ 

Sac  and  Fox  Annuities. — A  band  of  the  Sac  and  Fox  Indians  left  their 
reservation  in  Kansas  and  returned  to  their  former  home  in  Iowa.  Their  rights, 
as  a  part  of  the  Sac  and  Fox  tribes  of  Indians,  and  as  individuals  in  the  annuities 
granted  to  and  provided  for  by  acts  of  congress,  have  been  before  the  federal 
courts  and  ascertained  according  to  the  construction  placed  upon  such  acts.^^"* 


the  United  States  to  the  federal  courts 
therein  provided.  Pickett  v.  United 
States,  216  U.  S.  456,  54  L.  Ed.  566,  30  S. 
Ct.   265. 

960-51a.  Apportionment. — United  States 
V.  Sisseton  and  Wahpeton  Bands  of  Sioux 
Indians,  208  U.  S.  561,  52  L.  Ed.  621,  28  S. 
Ct.  352,  affirming  42  Ct.  CI.  416. 

960-51b.  Authority  of  court  of  claims- 
Amount  of  annuities  restored. — After  the 
Sioux  outbreak  in  1862,  congress  declared 
forfeited  the  annuities  assured  to  the  In- 
dians by  the  treaty  of  1851,  and  appro- 
priated the  same  for  the  relief  of  white 
sufferers.  Subsequently  the  annuities 
were  restored  and  this  court  was  au- 
thorized to  ascertain  the  amount  due  after 
setting  off  all  amounts  properly  charge- 
able against  such  annuities.  Held,  that  the 
money  of  the  Indians  expended  for  the 
relief  of  the  white  sufferers  under  Act 
Feb.  16,  1863,  c.  37,  12  Stat.  652,  is  a  proper 
charge  against  the  unpaid  annuities; 
moneys  appropriated  since  1863  for  the 
support  of  these  Indians,  being  in  the 
stead  of  the  annuities,  should  be  deemed 
charged  against  the  fund;  money  ex- 
pended in  removing  the  Indians  to  new 
homes  is  not  a  proper  charge  against  the 
unpaid  annuities;  moneys  paid  under  a 
treaty  "in  consideration  of  the  destitution 
of  said  bands,"  "resulting  from  the  con- 
fiscation of  their  annuities  and  improve- 
ments" are  a  proper  charge;  money  paid 
to  the  Indians  which  was  in  legal  effect 
the  proceeds  derived  from  a  sale  of  their 
lands  is  not  properly  chargeable.  (1907), 
Sisseton  and  Wahpeton  Bands  of  Indians 
V.  United  States.  42  Ct.  CI.  416,  judgment 
affirmed  in  United  States  v.  Sisseton  and 
Wahpeton  Bands  of  Sioux  Indians.  208 
U.   S.  561,  52  L.   Ed.  621,  28  S.  Ct.  352. 

Payments  made  by  the  United  States 
on  account  of  depredations  by  the  Sisse- 
ton and  Wahpeton  Bands  of  Sioux  In- 
dians, sums  paid  to  their  chiefs  for  re- 
moval and  subsistence,  and  for  manual 
labor  schools  under  the  treaty  of  July  23, 
1851    (10   Stat.   949),   and   expenditures   for 


their  support  made  because  of  the  desti- 
tution produced  by  the  forfeiture  of  their 
annuities,  which  was  declared  by  Act 
Feb.  16,  1863,  c.  37,  12  Stat.  652,  are  prop- 
erly set  off  against  their  annuities  by  the 
court  of  claims,  in  the  exercise  of  its  ju- 
risdiction under  Act  June  21,  1906,  c.  3504, 
34  Stat.  372,  to  adjudicate  and  award  the 
balance,  if  any.  due  such  Indians,  for  an- 
nuities under  the  treaty,  as  if  the  act  of 
forfeiture  had  not  been  passed,  and  to  as- 
certain and  set  off  all  payments  or  other 
provisions  made  to  or  for  such  bands  or 
any  members  thereof  since  the  act  of 
forfeiture  "which  are  properly  chargeable 
against  unpaid  annuities."  Judgment 
(1907),  42  Ct.  CI.  416,  affirmed.  United 
States  V.  Sisseton  and  Wahpeton  Bands 
of  Sioux  Indians,  208  U.  S.  561,  52  L.  Ed. 
621,  28  S.  Ct.  352. 

960-51C.  Indians  entitled  to  participate. 
— Sac  and  Fox  Indians  v.  Sac  and  Fox 
Indians,  220  U.  S.  481,  55  L.  Ed.  552,  31 
S.   Ct.   473,   affirming  45   Ct.   CI.   287. 

960-51d.  Sac  and  Fox  annuities — Indi- 
vidual rights. — The  band  of  Sacs  and 
Foxes  who  had  left  their  reservation  in 
Kansas  and  returned  to  their  former  horne 
in  Iowa  possessed  no  individual  rights  in 
the  annuities  apportioned  to  them  from 
treaty  appropriations,  under  the  Act  of 
July  4,  1884  (23  Stat,  at  L.  76,  chap.  180), 
which  confined  its  benefits  to  the  "Sacs 
and  Foxes  now  in  Iowa,  to  be  ascertained 
by  the  secretary  of  the  interior."  Sac  and 
Fox  Indians  v.  Sac  and  Fox  Indians,  220 
U.  S.  481,  55  L.  Ed.  522,  31  S.  Ct.  473. 

Individual  rights  were  not  created  by 
the  provision  of  the  Indian  Appropriation 
Act  of  March  2,  1867  (14  Stat,  at  L.  492, 
chap.  173),  that,  as  permitted  by  the 
treaty  of  October  1,  1859  (15  Stat,  at  L. 
467),  art.  6,  the  band  of  Sacs  and  Foxes 
"now  in  Tama  county,  Iowa,  shall  be  paid 
pro  rata  according  to  their  numbers,  of 
ihe  annuities,  so  long  as  they  are  peace- 
ful and  have  the  assent  of  the  government 
of  Iowa  to  reside  in  that  state."     Sac  and 


650 


Vol.  VI. 


INDIANS. 


960 


Appropriations  to  Indians — Sectarian  School  Appropriations. — The  pol- 
icy of  the  government  in  regard  to  appropriations  for  the  use  of  sectarian  schools 
has  reference  only  to  gratuities  of  public  money.-^^'' 


Fox  Indians  v.  Sac  and  Fox  Indians,  220 
U.   S.   481,   55   L.    Ed.   552,   31    S.   Ct.   473. 

Ratification  of  proportionate  division. — 
The  payments  theretofore  made  to  the 
bands  of  Sacs  and  Foxes  who  had  left 
their  reservation  in  Kansas  and  returned 
to  their  former  home  in  Iowa,  as  their 
proportion  of  the  annuities  promised  to 
their  tribes,  were  ratified  as  to  the  amount 
by  the  Act  of  May  17,  1882  (22  Stat,  at 
L.  78,  chap.  163),  providing  that  there- 
after they  should  have  apportioned  to 
them  from  appropriations  for  fulfilling 
treaty  stipulations  no  greater  sum  thereof 
than  that  theretofore  set  apart  for  them. 
Sac  and  Fox  Indians  v.  Sac  and  Fox  In- 
dians, 220  U.  S.  481,  55  L.  Ed.  552,  31  S. 
Ct.   473. 

Effect  of  subsequent  change  in  propor- 
tionate division. — The  direction  to  the 
secretarv  of  the  interior  in  the  Act  of 
May  31,'  1900  (31  Stat,  at  L.  221.  chap. 
598),  thereafter  to  pay  a  named  head 
chief  of  the  band  of  Sacs  and  Foxes,  who 
liad  left  their  reservation  in  Kansas  and 
returned  to  their  former  home  in  Iowa, 
an  annuity,  in  accordance  with  the  terms 
of  the  treaty  of  October  11,  1842,  art.  4. 
is  not  enough  to  establish  that  he  had 
b)een  guilty  of  mistake  in  not  making  the 
sam.e  payment  in  previous  years.  Sac  and 
Fox  Indians  v.  Sac  and  Fox  Indians,  220 
U.   S.   481,   55   L.    Ed.   552.   31   S.   Ct.   473. 

Right  of  chiefs  under  Act  of  October 
11,  1842. — The  chiefs  of  the  band  of  Sacs 
and  Foxes  who  left  their  reservation  in 
Kansas  and  returned  to  their  former 
homes  in  Iowa  could  claim  no  right  to 
the  sum  which,  under  the  treaty  of  Oc- 
tober 11,  1842  (7  Slat,  at  L.  596),  each  of 
the  principal  chiefs  should  receive  annu- 
ally "out  of  the  annuities  payable  to  the 
tribe" — especially  where  the  parties  to  the 
treaty  have  treated  the  chiefs  on  the  res- 
ervation as  the  only  ones  to  be  paid.  Sac 
and  Fox  Indians  v.  Sac  and  Fox  Indians, 
:220  U.  S.  481,  55  L.  Ed.  552,  31  S.  Ct.  473. 

The    condition    attached    to    the    provi- 


sions of  the  treaty  of  October  1,  1859,  art. 

7,  inviting  nonresident  members  of  the 
Sac  and  Fox  tribes  to  come  in,  and  pro- 
viding for  notice  to  them,  that  those  who 
do  not  rejoin  and  permanently  reunite 
with  the  tribe  within  one  year  shall  have 
none  of  the  benefits  of  any  of  the  treaty 
stipulations,  is  an  absolute  condition  pre- 
cedent to  the  acquisition  by  persons  not 
parties  to  the  treaty  of  any  rights,  whether 
given  notice  or  not.  Sac  and  Fox  Indians 
V.  Sac  and  Fox  Indians,  220  U.  S.  481,  55 
L.   Ed.  552,  31  S.  Ct.  473. 

Indians  absent  from  their  reservation 
without  permission  from  the  United  States 
had  no  individual  rights  to  the  annuities 
promised  to  their  tribes  by  treaty,  and 
paid  at  the  tribal  agency  conformably  to 
the  Act  of  August  30,  1852  (10  Stat,  at  L. 
41,  chap.  103,  U.  S.  Rev.  Stat.,  §  2086),  §  3, 
which  forbade  payment  to  be  made  to  any 
attorney  or  agent,  and  required  it  to  be 
tnade  directly  to  the  Indians  themselves 
or  to  the  tribe  per  capita,  "unless  the  im- 
perative interest  of  the  Indian  or  Indians 
or  some  treaty  stipulation  shall  require 
the  payment  to  be  made  otherwise,  under 
the  direction  of  the  president."  Sac  and 
Fox  Indians  v.  Sac  and  Fox  Indians,  220 
U.  S.  481,  55  L.  Ed.  552,  31  S.  Ct.  473. 

960-51e.  Appropriation  to  Indians — 
Sectarian  school  appropriation. — The  dec- 
laration of  policy  that  the  government 
shall  make  "no  appropriation  whatever 
for  education  in  any  sectarian  school," 
contained  in  the  various  Indian  appropri- 
ation acts,  iias  reference  only  to  gratui- 
tous appropriations  of  public  moneys,  and 
has  no  application  to  appropriations  made 
to  fulfill  obligations  under  the  Sioux 
Treaty  of  April  29,  1868  (15  Stat.  635,  637), 
or  to  expenditures  of  the  income  of  the 
trust  fund  set  apart  by  Act  March  2,  1889, 
c.  405,  §  17,  25  Stat.  888,  894,  895,  for  the 
use  of  the  Sioux  Nation,  in  part  consider- 
ation of  cessions  of  lands  to  the  United 
States.  Quick  Bear  v.  Leupp,  210  U.  S.  50, 
52  L.  Ed.  954,  28  S.  Ct.  690. 


651 


INDICTMENTS,  ETC.  Vol.  VL 


INDICTMENTS,  INFORMATIONS,  PRESENTMENTS  AND  COMPLAINTS 

II.  Necessity  for  Presentment  or  Indictment,  653. 

A.  In  General,  653. 

III.  Finding  of  Indictment,  653. 

B^.  Constitution  of  Grand  Jury,  653. 
C.  Concurrence  of  Grand  Jurors,  653. 
D^.  Hearing  Evidence,  653. 

VII.  Form  and  Requisites,  653. 
A.   Statutory  Provision,  653. 

VIII.  Requisites  and  Sufficiency  of  Charge,   653. 

C.  Designation  of  the  OiTense,  653. 

4.  Under  Statute,  653. 

6.  General  Rules  of  Sufficiency,  653. 

a.  To  Show  Nature  and  Cause  of  Accusation,  653. 
(1)   In  General,  653. 

7.  Averment  of  I^articular  Matters,  653. 

1.  Intent  or  Knowledge,  653. 

(1)  Intent,  653. 

(a)    Necessity   for   Averment,  653. 
o.  Statutory  Offenses,  654. 

(2)  In  Words  of  Statute,  654. 
(a)   The   General    Rule,   654. 

D.  Designation  of  Persons,  654.  ■ 

1.  Of  Accused,  654. 

c.  Descriptions   and   Additions.    654. 
F.  Designation  of  Place,  654. 

2.  Sufficiency    of    Averment.    654. 

a.  In  General.  654. 

b.  Within    Jurisdiction   of    Court,   654. 

XIII.  Validity  of  Accusation,  654. 

A.  Presumption  of   Validity,   654. 

B.  Validity  of  Part  of  Counts,  654. 

XIV.  Construction  of  Accusation,  655. 
XV.  Objections  to  Accusation,  655. 

C.  Manner  of  Making  Objection,  655. 

1.  Motion  to  Quash,  655. 
b.  Grounds   for,  655. 

5.  Writ   of  Error,  655. 

F.  Waiver  and  Cure  of  Objections,  655. 
1.  Waiver  of  Objections,  655. 

CROSS  REFERENCES. 

See  the  title  Indictments,  Informations.  Presentments  and  Complaints^ 
vol.  6,  p.  961,  and  references  there  given. 

In  addition,  see  ante, 'Appeal  and  Error,  p.  34;  Banks  and  Banking,  p„ 
184;    Extradition,  p.  571;    Grand  Jury,  p.  609;    Habeas  Corpus,  p.  612. 

As  to  sufficiency  for  extradition,  see  ante.  Extradition,  p.  571. 

652 


Vol.  VI.  INDICTMENTS,  ETC.  968-981 

II.    Necessity  for  Presentment  or  Indictment. 
A.    In  General. — See  note  34. 

III.  Finding  of  Indictment. 

B|.  Constitution  of  Grand  Jury. — If  an  order  for  a  grand  jury-  is  made  by 
the  proper  authority,  its  source,  whether  the  court  or  one  of  its  judges,  is  of  no 
concern  to  one  afterwards  indicted  by  the  jury,  but  if  the  drawing  is  by  unau- 
thorized persons,  or  from  persons  not  properly  selected  or  ciualified,  the  in- 
dictment  may   be   quashed.-"' ^"^ 

C.  Concurrence  of  Grand  Jurors. — No  formal  vote  of  grand  jurors  is  es- 
sential to  an  indictment,  and  if  one  is  taken  it  need  not  be  recorded,  an  intel- 
ligent assent  of  the   jurors  being  sufficient."^^"' 

D|.  Hearing  Evidence. — An  indictment  need  not  be  quashed  because  the 
grand  jury  considered  testimony  of  admissions  by  the  prisoner  which  were 
obtained  under  circumstances  that  made  them  incompetent.-'-'' 

VII.  Form  and  Requisites. 

A.     Statutory  Provision.— See  note  49. 

VIII.  Requisites  and  Sufficiency  of  Charge. 

C.  Designation  of  the  Offense — 4.  Under  Statute. — The  requirement  of 
the  Philippine  Bill  of  Rights,  that  the  accused  be  advised  of  the  nature  and  cause 
of  the  accusation  against  him,  is  satisfied  where  such  complaint,  however  open 
it  may  be  to  criticism  on  demurrer,  supposing  the  strict  rules  of  the  old  com- 
mon law  to  be  applied,  leaves  no  doubt  in  the  mind  of  a  person  of  rudimentary 
intelligence  that  it  means  to  charge  the  accused  with  the  falsification  of  docu- 
ments, contrary  to  the   Philippine   Penal  Code.^*'^ 

6.  General  Rules  of  Sufficiency — a.  To  Shozv  Nature  ajid  Cause  of 
Accusation — (1)    In   General — See   note   46. 

7.  Averment  of  Particular  Matters — 1.  Intent  or  Knowledge — (1) 
Intent — (a)     Necessity    for    Averment. — An     indictment     for     murder     which 

968-34.    Necessity  for.— See  ante,  CON-  raiso   v.   United   States,   207   U.   S.   368,   52 

STITUTIOXAL  LAW,  p.  264.  L.  Ed.  249,  28  S.  Ct.  127. 

969-39a.     Constitution   of   grand   jury. —  981-46.  To  show  nature  and  cause  of  ac- 

Ex  parte   Harlan   (C.  C),  180  F.  119,  de-  cusation.— See    post,    PERJURY, 

crees    affirmed    Harlan    v.    McGourin,    218  The  accused  is  entitled  to  know  the  na- 

U.    S.    442,    54    L.    Ed.    1101,    31    S.    Ct.    44.  tare   and   cause   of  the   accusation   against 

See   ante,   GRAXD  JURY,  p.  600.  him,    and    a    charge    must    be    sufficiently 

969-40a.     Concurrence    of   grand   jurors.  definite  to  enable  him  to  make  his  defense 

— Harlan   z:   McGourin,   218    U.    S.   442,   54  and    avail    himself   of   the    record   of   con- 

L.   Ed.  1101,  31   S.   Ct.  44.  viction    or    acquittal    for    his    protection 

969-42a.  Hearing  evidence. — Holt  z\  against  further  prosecutions  and  to  in- 
United  States,  218  U.  S.  245,  54  L.  Ed.  form  the  court  of  the  facts  charged,  so 
1021,  31  S.  Ct.  2,  affirming  judgment  that  it  may  decide  as  to  their  sufficiency 
United  States  v.  Holt   (C.  C),  168  F.   141.  in  law  to  support  a  conviction,  if  one  be 

970-49.       Statutory    provision. — "Section  had,  and  the  elements  of  the  offense  must 

1025.  Rev.  Stat.,  of  the  United  States  pro-  be   set   forth   in   the   indictment   with    rea- 

vides    that  no   judgment    upon    an    indict-  sonable    particularity    of    time,    place    and 

ment    shall  be    affected  by    reason  of    any  circumstances.     Armour     Packing  Co.     r. 

defect   or  imperfection   in  matter  of  form  United  States,  209  U.  S.  56,  83,  52  L.   Ed. 

which   shall   not   tend   to   the  prejudice   of  681.  28   S.   Ct.   428. 

the  defendant,  and,  unless  the  substantial  An  indictment  which  specifically  states 
rights  of  the  accused  were  prejudiced  by  the  elements  of  the  oflfense  with  suffi- 
the  refusal  to  require  a  more  specific  state-  cient  particularity  to  fully  advise  the  de- 
ment of  the  manner  in  which  the  oflfense  fendant  of  the  crime  charged  and  to  ena- 
was  committed,  there  can  be  no  reversal."  ble  a  conviction,  if  had,  to  be  pleaded  in 
New  York,  etc.,  R.  Co.  v.  United  States,  bar  of  any  subsequent  prosecution  foi 
212  U  S.  481,  497,  53  L.  Ed.  613,  29  S.  Ct.  the  same  oflfense,  is  sufficient.  New 
304  York,  etc.,  R.  Co.  z:  United  States.  212 
975-90a.      Designation     of    offense.— Pa-  U.  S.  481.  497,  53  L.  Ed.  613,  29  S.  Ct.  304. 

633 


986-1004  INDICTMENTS,  ETC.  Vol.  VL 

charges  that  the  acts  constituting  the  assault  were  made  feloniously  and  with 
malice  aforethought  need  not  contain  such  allegations  in  the  preliminary  aver- 
ment of  assault.^^^ 

o.  Statutory  Offenses — (2)  In  Words  of  Statute — (a)  The  General  Rule. 
— See  note  4.  It  is  not  always  sufficient  to  charge  statutory  offenses  in  the  lan- 
guage of  the  statutes,  and  where  the  oft'ense  includes  generic  terms  it  is  not 
sufficient  that  the  indictment  charge  the  offense  in  the  same  generic  terms,  but 
it  must  state  the  particulars.-*^  But  an  indictment  which  distinctly  and  clearly 
charges  each  and  every  element  of  the  off'ense  intended  to  be  charged,  and 
distinctly  advises  the  defendant  of  what  he  is  to  meet  at  the  trial,  is  sufficient.'*'' 

D.  Designation  of  Persons — 1.  Op  Accused — c.  Descriptions  and  Addi- 
tions.— The  description  of  the  accused  in  a  criminal  complaint  charging  falsi- 
fication of  a  public  document,  as  "disbursing  officer  of  the  bureau  of  coast 
guard  and  transportation  of  the  United  States  government  of  the  Philippine 
Islands,"  is  sufficient  as  against  demurrer,  although  technically  there  may  be 
no  such  body  politic  as  "the  United  States  government  of  the  Philippine  Is- 
lands," especially  in  view  of  the  provisions  of  the  Philippine  Islands  criminal 
code  of  procedure,  which  require  a  public  offense  to  be  described  in  ordinary 
and  concise  language,  so  as  to  enable  a  person  of  common  understanding  to 
know  what  is  intended,  and  the  court  to  pronounce  judgment  according  to 
the  right,  and  declare  that  defects  in  matter  of  form  are  not  material  where 
they  do  not  tend  to  prejudice   substantial   rights.-*^^ 

F.  Designation  of  Place — 2.  Sufficiency  of  Averment — a.  In  General. — 
See  note  59. 

b.    Within  Jurisdiction  of  Court. — See  note  60. 

XIII.  Validity  of  Accusation. 

A.  Presumption  of  Validity. — A  grand  jury  is  presumed  to  have  acted  on 
legal  evidence  in  returning  an  indictment,  until  accused  meets  his  burden  to 
show  the  contrary.2oa  As  to  presumption  of  validity  of  indictment  found  by 
disqualified  grand  jurors,  see  ante.  Grand  Jury,  p.  609. 

B.  Validity  of  Part  of  Counts. — See  note  21. 

986-80a.    Necessity  for  averment. — Holt  der     the     exclusive     jurisdiction     of     the 

V.  United  States,  218  U.  S.  245,  54  L.  Ed.  United  States  at  the  time  of  the  murder. 

1021,     31    S.    Ct.     2,    affirming     judgment  Holt  v.   United   States,  218   U.   S.  245,   54 

United   States  v.   Holt    (C.   C),   168   Fed.  L.   Ed.   1021,  31   S.   Ct.  2,  affirming  judg- 

141.  ment  United  States  v.   Holt   (C.   C.   1909) 

989-4.     Under  Philippine  Code.— Weems  168   F.  141. 

V.  United  States,  217  U.  S.  349,  54  L.  Ed.  1004-20a.    Presumption   of  validity. — Ex 

793,  30  S.   Ct.   544.  parte    Harlan    (C.    C),    180    Fed.    119,    de- 

989-4a.    Armour  Packmg  Co.  v.  United  crees    affirmed    Harlan   v.    McGourin,   218 

States,  209  U.   S.  56,  83,  52  L.   Ed.  681,  28  U.   S.  442,  54  L.  Ed.  1101,  31   S.   Ct.  44. 


S.   Ct.  428. 


1004-21.    Validity   of  part   counts. — "As 


989-4b.    Armour  Packing  Co.  v.  United  to  the  assignment  of  error  that  there  were 

States,    209    U.    S.    56,   84,    52    L.    Ed.    681,  certain  defective  counts  in  the  indictment, 

28  S.  Ct.  428.  _     ^  J      J   .  •  the    conviction    was    a    general    one,    antl, 

995-45a.      Descriptions  and    additions. —  even   if  the   counts  were   defective,  as  al- 

Weems   v.   United    States,   217   U.    S.   349,  leged,   one   good   count,   sufficient   to   sus- 

54  L.  Ed.  793,  30  S.  Ct.  544.  tain   the   sentence,   is  all  that   is   required 

997-59.      Sufficiency    of    averment.— See  to  warrant  the  affirmation  of  a  judgment 

ante,  CONSPIRACY,  p.  256.  in   error  proceedings.     Dunbar  v.   United 

997-60.    Within   jurisdiction   of   court.—  States,  156  U.  S.  185,  39  L.  Ed    390;  Pow- 

An   allegation   in  an  indictment  for  mur-  ers  v.   United   States,   223   U.   S.   303,   312, 

der  that  the  crime  was  committed  "within  56  L.   Ed.  448,  32  S.   Ct.  281. 
the  Fort  Worden  Military  Reservation,  a  As  to  validity  to  support  a  transfer  of 

place   under  the   exclusive  jurisdiction   of  the   accused  from   one   federal   district   to 

the  United  States,"  charges  with  sufficient  another,  see  ante,   CRIMINAL  LAW,  p. 

clearness    that    such    reservation    was   un-  434. 

654 


Vol.  VI.  INFANTS.  1005-1017 

XIV.  Construction  of  Accusation, 

An  indictment  is  to  be  construed   favorable  to  the  defendant. -^^ 
XV.  Objections  to  Accusation. 

C.    Manner  of  Making  Objection— 1.   Motion  to  Quash— b.   Grounds  for. 
—See  ante,  "Constitution  of  Grand  Jury,"  III,  B^  ;    '"^earing  Evidence,"  III, 

5.   Writ  of  Error. — See  ante.  Appeal  and  Error,  p.  34. 

F.    Waiver   and    Cure    of   Objections— 1.    Waiver   of   Objections.— See 

note  55. 

INDIRECT  TAX.— See  note  1. 

INDORSEMENTS.— See  ante,  Bills,  Notes  and  Checks,  p.  204. 
INDORSER. — See  ante.  Bills,  Notes  and  Checks,  p.  204;    post,  Pledge 
and  Collateral  Security. 


INFANTS. 

III.  Property  of  Infant,  655. 

B.  Equity  Jurisdiction,  655. 

C.  Sale  of  Infant's   Property,  656. 

2.  Effect   of    Irregularity   in   Proceedings,   656. 

IV.  Suits  by  and  against  Infants,  656. 

B.  Guardian  Ad  Litem  or  Next  Friend,  656. 
4.  Duties,  656. 

CROSS  REFERENCES. 
See  the  title  Infants,  vol.  6,  p.  1012,  and  references  there  given. 

III.  Property  of  Infant. 

B.    Equity  Jurisdiction. — The  inherent  power  of  a  court  of  equity  over  the 
persons  and  estates  of  infants  is  very  wide.-^'^ 

1005-26a.      Construction    of    accusation.  business   in    the    designated   capacity,   and 

— Williamson  v.   United  States,  207  U.  S.  this  made  the  occasion  for  the  tax,  meas- 

425,    52    L.    Ed.    278,    28    S.    Ct.    163.      See  ured     by     the    standard  prescribed.     The 

.ante,  CONSPIRACY,  p.  256.  difference  between  the  acts  is  not  merely 

1008-55.      Waiver     of     objections. — Ac-  nominal,    but    rests    upon    substantial    dif- 

cused  waived  an  objection  to   the   indict-  ferences  between   the  mere   ownership   of 

ment   on    the    ground   that   the   grand   ju-  property  and  the  actual  doing  of  business 

rors  did  not  assent  to  it,  by  going  to  trial  in  a  certain  way."     Flint  v.   Stone  Tracy 

without    raising     the    objection.       (C.     C.  Co.,  220  U.   S.   107,   150,  55  L.   Ed.  389,  31 

1909)    Ex   parte    Harlan,    180    F.    119,    de-  S.  Ct.  342.     See  post,  REVENUE  LAWS; 

crees    affirmed    Harlan    v.    McGourin,   218  TAXATION.     See,  also,   ante,   DUTIES, 

U.   S.  442,  54  L.  Ed.   1101,  31   S.  Ct.  44.  p.  533. 

1011-1.  Indirect  taxation. — "Within  the  1017-28a.  Equity  jurisdiction. — United 
category  of  indirect  taxation,  as  we  shall  States  v.  Morse,  218  U.  S.  493,  505,  54 
have  further  occasion  to  show,  is  em-  L.  Ed.  1123,  31  S.  Ct.  37. 
braced  a  tax  upon  business  done  in  a  cor-  "For  the  purpose  of  maintenance,  the 
porate  capacity,  which  is  the  subject  mat-  power  over  real  estate  is  undoubtedly 
ter  of  the  tax  imposed  in  the  act  under  more  comprehensive  than  it  is  over  the 
consideration.  The  Pollock  Case  con-  sale  of  real  estate  for  purposes  of  rein- 
strued  the  tax  there  levied  as  direct,  be-  vestment,  though  manifestly  for  the 
cause  it  was  imposed  upon  propertj'  interest  of  the  minor.  The  weight  of  au- 
simply  because  of  its  ownership.  In  the  thority  seems  to  be  that  it  does  not  ex- 
present  case  the  tax  is  not  payable  un-  tend  to  sales  merely  because  it  shall  ap- 
less   there  be   a  carrying  on   or  doing  of  pear  to  be   for  the  interest  of  the   infant 

655 


1017-1019  I X  IT  I  AT  IV  E   AND   REFERENDUM.  Vol.  VI. 

C.  Sale  of  Infant's  Property — 2.  Effect  of  Irregularity  in  Proceedings. 
— Irregularity  as  Subjecting  Decree  to  Collateral  Attack. — Where  a  court 
has  jurisdiction  to  sell  the  property  of  minors,  mere  irregularities  do  not  subject 
the  decree  to  collateral  attack.^^^ 

IV.    Suits  by  and  against  Infants. 
B.    Guardian  Ad  Litem  or  Next  Friend — 4.    Duties. — See  note  40. 

INFERIOR  COURTS.— See  ante,  Courts,  p.  398. 

INFORMATIONS. — See  ante,  Indictments,  Informations,  Presentments 
AND  Complaints,  p.  652;  post,  Intoxicating  Liquors. 

INFORMERS. — See  the  title  Informers,  vol.  6,  p.  1020,  and  references  there 
given. 

INFRINGEMENT.— See  ante.  Copyright,  p.  2)77 ;  post,  Patents;  Trade- 
marks,   TrADENAAIES   AND   UnFAIR    COMPETITION. 

INHABITANT.— See  ante,  Citizenship,  p.  235. 

INHERITANCE  TAX.— See  post,  Succession  Taxes. 

INITIALS. — See  ante,  Exceptions,  Bill  of,  and  Statement  of  Facts  on 
Appeal,  p.  559. 

INITIATIVE  AND  REFERENDUM.— See  ante,  Constitutional  Law,  p. 
264. 

(Bispham's     Equity,    §    549;     Story's     Eq-  power  as   a  court   of  equity,   or   its   statu- 

uity,   §   1357;   3   Pomeroy   Equity,   §§   1304,  tory   authority.      United    States   v.    Morse, 

1309),    though    there    is    not    lacking   very  218   U.    S.   493,   54   L.    Ed.    1123,   31    S.    Ct. 

respectable    authority    for    the    power    to  37.     See,  also,  post,  JUDGMENTS  AND 

sell    real    estate    when    shown    to    be    for  DECREES. 

the    manifest    interest    of    the    minor.      2  1019-40.    May  select  tribunal  in  which  to 

Kent's  Comm.,  11th  ed.  230;  5  Johns.  Ch.  bring   suit. — -"That  a   next   friend   may   se- 

167;    4    Heisk.    (Tenn.)    370,    and    7    Baxt.  lect   the    tribunal    in   which   the    suit    shall 

(Tenn.)  502."    United  States  v.  Morse,  218  be    brought  is    clear.     While    he    may    do 

U.  S.  493,  505,  54  L.  Ed.  1123,  31  S.  Ct.  37.  nothing     prejudicial     to     the     substantial 

1017-30a.    Decree  not  subject  to  coUat-  rights  of  the  minor,  yet  the  mere  selection 

eral   attack. — A     decree     of   the     supreme  of  one  out  of  many  tribunals  having  juMs- 

court  of  the  District  of  Columbia  for  the  diction   can   not  be   considered   as   an   act 

sale  of  an  infant's  real  property   for  pur-  to     the    latter's    prejudice.     Certainly    the 

poses    of    reinvestment,    made    with    juris-  election    to    accept    the    jurisdiction    of    a 

diction    of   the   res   and    of   the   parties,    is  court   of  the   United   States   is   not  an   act 

not  open  to  collateral  attack,  even  though  prejudicial    to    substantial    rights."    In    re 

the  court  erred  in  holding  that  a  case  had  Moore,  209  U.  S.  490,  52  L.  Ed.  904,  28  S. 

been     made,     either    under     its     inherent  Ct.   585,   706. 

6.56 


Vol.  VI.  INJUNCTIONS. 


INJUNCTIONS. 

IV.  Jurisdiction,  658. 

C.  Over  Particular  Parties  and  Subject  Matters,  658. 

3.  Public  Officers,  658. 

a.  Injunction  against,  658. 

(1)  Officers  of  United  States,  658. 

(2)  Officers  of  States,  659. 

4.  Legislative  Bodies,  659. 

5.  Proceedings  in  Federal  and  State  Courts,  659. 

a.  Proceedings  in  State  Courts,  659. 

7.  Enjoining  Prosecution  and  Punishment  of  Crime,  659. 

V.  Right  to  Relief,  660. 

A.  Rules  and  Principles  Governing  Issuance,  660. 

d.  Interest  of  Defendant  to  Be  Considered.  660. 

2.  As  Dependent  on  Right,  Title  or  Interest  of  Plaintiff,  660. 

b.  Prior  Establishment  of  Right  or  Title,  660. 

(1)   In  General,  660. 

3.  Grounds  of  Equitable  Jurisdiction,  660. 

a.  Inadequacv  of  Other  Remedies,   660. 

(1)  In  General,  660. 

(2)  What  Constitutes  Adequate  Remedy,  660. 

c.  Nature  of  Injury  Giving  Equity  Jurisdiction,  660. 

(1)  Reasonable  Apprehension  of  Injury,  660. 

(2)  Irreparable  Injury — Not  Compensated  in  Damages,  660. 
f.  Unconstitutionality  of  Statute,  661. 

4.  Conduct  of  Plaintiff  as  Affecting  Right,  663. 

b.  Offer  to  Do  Equity,  663. 

c.  Laches  and  Negligence,  664. 

rn   In  General,  664. 

B.  In  Particular  Instances,  664. 

1.  In  General,  664. 

2.  Against  Actions  at  Law  and  Other  Legal  Proceedings,  664. 

a.  Actions  at  Law,  664. 

2.  Grounds  of  Jurisdiction,  664. 

(c)   Multiplicity  of  Suits,  664. 

VI.  Procedure  to  Obtain,  664. 

A.  Jurisdiction,  664. 

B.  Parties,  664. 

3.  Parties  Defendant.  664. 

a.  Proper  and  Necessary  Parties,  664. 
D.  Pleading,  665. 

1.  Bill  or  Complaint — Form  and  Requisites,  665. 

a.  Allegations  as  to  Grounds  of  Application,  665. 
(1)   Certainty  and  Clearness,  665. 
F.  Evidence,  665. 

1.  Presumptions  and  Burden  of  Proof,  665. 
I.  Writ  or  Order,  665. 

3.  Temporary  Restraining  Order  and  Interlocutory  Injunction  Dis- 
tinguished. 665. 
K.  Final  Decree,  665. 

2.  Scope  of  Restraint,  665. 

12    U    S    Enc— 42  6.-)7 


1028  INJUNCTIONS.  Vol:  VI. 

a.  Dependent  on  Bill  or  Complaint,  665. 

b.  Limitation  of  Decree  to  Relief  Sought,  665. 

(1)   In  General,  665. 

(3)   Construction  of  Decree  as  to  Scope  of  Restraint,  666. 

X.  Bond,  666. 

E.  Liability  on  Bond,  666. 

5.  When  Liability  Ceases,  666. 

F.  Procedure  on  Bond,  666. 

G.  Damages,  667. 

L  In  General,  667.  ' 

XII.   Violation  of  Injunction,  667. 

A.  In  General,  667. 

L  What  Constitutes,  667. 

2.  Power  to  Publish,  667. 

C.  Defense,  Justification  or  Excuse,  667. 

L  In  General,  667. 

D.  Procedure  and  Punishment,  667. 

L  In  General,  667. 

3.  Punishment — Object  of,  668.  * 

4.  Decree,  668. 

CROSS  REFERENCES. 

See  the  title  Injunctions,  vol.  6,  p.  1022,  and  references  there  given. 

IV.  Jurisdiction. 

0.  Over  Particular  Parties  and  Subject  Matter — 3.  Public  Officers — 
a.  Injunction  against — (1)  Officers  of  United  States. — Where  the  officer  is  pro- 
ceeding under  an  unconstitutional  act,  its  invalidity  suffices  to  show  that  he  is 
without  authority,  and  it  is  this  absence  of  lawful  power  and  his  abuse  of  authority 
in  imposing  or  enforcing,  in  the  name  of  the  state,  unwarrantable  exactions  or 
restrictions,  to  the  irreparable  loss  of  the  complainant,  which  is  the  basis  of  the 
decree.^^*^  The  principle  has  frequently  been  applied  with  respect  to  state  offi- 
cers seeking  to  enforce  unconstitutional  enactments.^ ^'^  And  it  is  equally  appli- 
cable to  a  federal  officer  acting  in  excess  of  his  authority  or  under  an  authority 
not  validly  conferred. ^^°  And  a  similar  injury  may  be  inflicted,  and  there  may 
exist  ground  for  equitable  relief,  when  an  officer,  insisting  that  he  has  the  war- 
rant of  the  statute,  is  transcending  its  bounds,  and  thus  unlawfully  assuming  to 
exercise  the  power  of  government  against  the  individual  owners.  He  is  guilty  of 
an  invasion  of  private  property.^^'^    And  in  case  of  an  injury  threatened  by  his  il- 

1028-18a.      Officers   of    United    States.—  v.  Western  Union  Tel.  Co.,  216  U.  S.  146, 

Philadelphia  Co  v.  Stimson,  223  U.  S.  605,  54  L.  Ed.  423,  30  S.  Ct.  280;   Herndon  v. 

56    L.    Ed.    570,    577,    32    S.    Ct.    340,    citing  Chicago,    etc.,    R.    Co.,   218   U.    S.   135,   155, 

Ex  parte  Young,  209  U.  S.  123,  52  L.   Ed.  54   L.   Ed.   970,  30  S.   Ct.   633;    Hopkins  v. 

714,  28  S.   Ct.  441.  Clemson   Agricultural    College,   221    U.    S. 

1028-18b.    Applicable  to  state  officers.—  636,  645,  55  L.  Ed.  890,  31  S.  Ct.  654.     See 

Philadelphia    Co.    v.    Stimson,    223    U.    S.  post,  "Officers  of  States,"  IV,  C,  3,  a,  (2). 

605,   56   L.    Ed.    570,   32   S.    Ct.   340,   citing  1028-18C.    Equally  applicable  to  federal 

Osborn  v.  Bank  of  United  States,  9  Wheat.  officers. — Philadelphia  Co.  v.  Stimson,  223 

738,  6  L.  Ed.  204;  Davis  v.  Gray,  16  Wall.  U.  S.  605,  56  L.  Ed.  570,  32  S.  Ct.  340,  cit- 

203,  21  L.   Ed.  447;   Pennoyer  v.  McCon-  ing    Noble   v.    Union    River,   etc.,    R.    Co., 

naughy,  140  U.   S.  1,  10,  35   L.   Ed.  363,  11  147    U.    S.    165,    172,    37    L.    Ed.    123,    13    S. 

S.  Ct.  699;  Scott  V.  Donald,  165  U.  S.  107,  Ct.   271;   American   School  v.   McAnnulty, 

112,   41   L.    Ed.    648,   17   S.    Ct.   262;    Smyth  187  U.  S.  94,  47  L.  Ed.  90,  23  S.  Ct.  33. 

V.  Ames,   169  U.  S.   466,  43  L.   Ed.  819,   18  1028-18d.       Transcending       authority.— 

S.  Ct.  418;  Ex  parte  Young,  209  U.  S.  123,  Philadelphia  Co.  v.  Stimson,  223  U.  S.  605, 

160,  52   L.   Ed.  714,  28   S.   Ct.  441;   Ludwig  56  L.  Ed.  570,  32  S.  Ct.  340. 

658 


Vol.  VI. 


INJUNCTIONS. 


1028-1031 


legal  action,  the  officer  can  not  claim  immunity  from  injunction  process. ^^® 
(2)    Officers  of  States. — See  note  19. 

4.  Legislative  Bodies. — See  note  23. 

5.  Proceedings  in  Federal  and  State  Courts — a.  Proceedings  in  State 
Courts. — See  notes  24,  26. 

7.  Enjoining  Prosecution  and  Punishment  of  Crime. — A  court  of  equity 
has  no  jurisdiction  over  the  prosecution,  the  punishment,  or  the  pardon  of  crimes 
or  misdemeanors.  To  assume  such  a  jurisdiction,  or  to  sustain  a  bill  in  equity  to 
restrain  or  relieve  against  proceedings  for  the  punishment  of  offenses,  is  to  invade 
the  domain  of  the  courts  of  common  laws,  or  of  the  executive  and  administrative 
department  of  the  government.^^^  A  distinction  obtains  when  it  is  found  to  be 
essential  to  the  protection  of  the  property  rights,  as  to  which  the  jurisdiction  of 
a  court  of  equity  has  been  invoked,  that  it  should  restrain  the  defendant  from  in- 
stituting criminal  actions  involving  the  same  legal  questions.  This  is  illustrated 
in  the  decisions  of  the  courts  in  which  officers  have  been  enjoined  from  bringing 


1028-18e.  Threatened  injury. — Phil- 
adelphia Co.  z:  Stimson,  223  U.  S.  605, 
56  L.  Ed.  570,  32  S.  Ct.  340. 

1028-19.  Officers  of  states. — Ludwig  v. 
Western  Union  Tel.  Co.,  216  U.  S.  146,  54 
L.   Ed.  423,  30   S.  Ct.  280. 

Suits  to  enjoin  prosecuting  attorneys 
from  bringing  actions,  under  the  author- 
ity of  a  state  statute  which  violates  the 
federal  constitution,  to  recover  the  pen- 
alties fixed  by  that  statute  for  violations 
of  its  provisions,  are  not  suits  against  a 
state,  within  the  meaning  of  U.  S.  Const., 
11th  Amend.,  securing  to  the  states  im- 
munity from  suit.  Western  Union  Tel.  Co. 
V.  Andrews,  216  U.  S.  165,  54  L.  Ed.  430, 
30  S.  Ct.  286. 

1029-23.  Legislative  bodies. — When  a 
rate  is  fixed,  a  bill  against  the  railroad 
commission  to  restrain  the  members  from 
enforcing  it  will  not  be  bad  as  an  attempt 
to  enjoin  legislation  or  as  a  suit  against 
a  state,  and  will  be  the  proper  form  of 
remedv.  Prentis  v.  Atlantic  Coast  Line 
Co.,  2l'l  U.  S.  210,  53  L.  Ed.  150,  29  S.  Ct. 
67,  citing  Reagan  v.  Farmers'  Loan,  etc., 
Co.,  154  U.  S.  362,  38  L.  Ed.  1014,  14  S. 
Ct.  1047;  Smyth  v.  Ames,  169  U.  S.  466, 
43  L.  Ed.  819,  18  S.  Ct.  418;  Chicago,  etc., 
R.  Co.  V.  Tompkins,  176  U.  S.  167,  44  L. 
Ed.  417,  20  S.  Ct.  336;  Hanley  v.  Kansas 
City,  etc.,  R.  Co.,  187  U.  S.  617,  47  L.  Ed. 
333,  23  S.  Ct.  214;  McNeill  v.  Southern 
R.  Co.,  202  U.  S.  543,  50  L.  Ed.  1142; 
Mississippi  R.  Comm.  v.  Illinois  Cent.  R. 
Co.,  203  U.  S.  335,  51  L.  Ed.  209,  27  S.  Ct. 
90;  Ex  parte  Young,  209  U.  S.  123,  52  L. 
Ed.  714,  28  S.  Ct.  441.  See,  also,  ante, 
CONSTITUTIONAL  LAW,  p.  264; 
COURTS,  p.  398. 

1029-24.  Proceedings  in  state  courts. — 
Ex  parte  Young,  209  U.  S.  123,  52  L.  Ed. 
714,  28  S.  Ct.  441;  Acme  Harvester  Co.  v. 
Beekman  Lumber  Co.,  222  U.  S.  300,  56 
L.   Ed.  208,  32  S.  Ct.  96. 

Injunctive  relief  against  railway  passen- 
ger rates  as  fixed  by  the  Virginia  state 
corporation  commission  may  be  granted 
by  a  federal  court  if  such  rates  are  con- 


fiscatory, although,  for  some  purposes, 
the  commission  is  a  court,  since  proceed- 
ings to  establish  rates  are  legislative,  and 
therefore  are  not  comprehended  by  the 
provision  of  Rev.  St.  U.  S.,  §  720  (U.  S. 
Comp.  St.  1901,  p.  581),  forbidding  federal 
courts  from  enjoining  proceedings  in 
state  courts,  which  provision  looks  to  the 
character  of  the  proceedings,  not  the 
character  of  the  body.  Prentis  v.  Atlantic 
Coast  Line  Co.,  211  U.  S.  210,  53  L.  Ed. 
150,  29  S.  Ct.  67. 

A  federal  circuit  court  on  principles  of 
comity,  should  not  entertain  a  suit  by 
which  injunctive  relief  is  sought  against 
railway  passenger  rates  as  fixed  by  the 
\'irginia  state  corporation  commission,  in 
advance  of  the  appeal  to  the  highest  state 
court  from  the  order  fixing  the  rates, 
which  is  given  by  the  state  constitution 
as  of  right  to  any  aggrieved  party.  Prentis 
z:  Atlantic  Coast  Line  Co.,  211  U.  S.  210, 
53  L.  Ed.  150,  29  S.  Ct.  67.  See  ante,  CON- 
STITUTIONAL LAW,  p.  264;  COURTS, 
p.  398. 

The  commission  appointed  under  Sess. 
Laws  1907,  p.  480,  §  47,  and  page  835,  §§ 
1,  3,  5,  is  not  a  "court,"  within  Rev.  St., 
§  720  (U.  S.  Comp.  St.  1901,  p.  581},  pro- 
hibiting the  granting  of  injunctions  by 
federal  courts  to  stay  proceedings  in  a 
state  court.  Judgment  (C.  C),  Fleisch- 
mann  Co.  z:  Murray,  161  F.  162;  Wilson 
Distilling  Co.  z:  Same.  Id.,  affirmed.  (C. 
C.  A.),  Murray  v.  Wilson  Distilling  Co., 
164  F.  1,  decree  reversed,  Murray  v.  Wil- 
son Distilling  Co..  213  U.  S.  151,  53  L.  Ed. 
742,   29    S.   Ct.   458. 

1029-26.  Ancillary  jurisdiction. — See 
ante.  COURTS,  p.  398. 

1031-31a.  Enjoining  prosecution  and 
punishment  of  crime. — Philadelphia  Co. 
z:  Stimson,  22;i  U.  S.  605,  56  L.  Ed.  570.  32 
S.  Ct.  340,  citing  Harkrader  v.  Wadley, 
172  U.  S.  148,  170.  43  L.  Ed.  399,  19  S.  Ct. 
119;  Fitts  V.  McGhee,  172  U.  S.  516,  531, 
43  L.  Ed.  535,  19  S.  Ct.  269;  2  Storey,  Eq. 
Jur.,  §  893. 


659 


1031-1041 


INJUNCTIONS. 


Vol.  VI. 


criminal  proceedings  to  compel  obedience  to  unconstitutional  requirements.^!" 

V.    Right  to  Relief. 
A.    Rules  and  Principles  Governing  Issuance — d.  Interest  of  Defendant  to 
Be  Considered. — See  note  38. 

2.  As  Dependent  on  Right,  Title  or  Interest  of  Plaintiff — b.  Prior  Es- 
tahlishment  of  Right  or  Title — (1)    In  General. — See  note  51. 

3.  Grounds  of  Equitable  Jurisdiction — a.  Inadequacy  of  Other  Remedies — 
(1)    In  General. — See  note  57. 

(2)    What  Constitutes  Adequate  Remedy. — See  notes,  62,  63. 

c.  Nature  of  Injury  Giving  Equity  Jurisdiction — (1)  Reasoruible  Apprehen- 
sion of  Injury. — It  is  not  for  a  court  to  stop  an  officer  making  an  assessment  from 
performing  his  statutory  duty  for  fear  he  should  perform  it  wrongly.  The  earli- 
est moment  for  equity  to  interfere  is  when  an  assessment  has  been  made."^^ 

(2)    Irreparable  Injury — Not  Compensated  in  Damages. — See  note  80. 


1031-31b.  Protection  of  property  rights, 

—Philadelphia  Co.  v.  Stimson,  223  U.  S. 
605,  56  L.  Ed.  570,  32  S.  Ct.  340,  citing 
Davis,  etc.,  Mfg.  Co.  v.  Los  Angeles,  189 
U.  S.  207,  47  L.  Ed.  782,  23  S.  Ct.  498; 
Dobbins  v.  Los  Angeles,  195  U.  S.  223, 
241,  49  L.  Ed.  169,  25  S.  Ct.  18;  Ex  parte 
Young,  209  U.  S.  123,  162,  52  L.  Ed.  714, 
28  S.  Ct.  441;  Western  Union  Tel.  Co.  v. 
Andrews,  216  U.  S.  165,  54  L.  Ed.  430,  30 
S.   Ct.   286. 

One  whose  property  rights  have  been 
invaded  in  fixing  harbor  lines  may  main- 
tain an  action  to  restrain  the  secretary  of 
war  from  causing  threatened  criminal  pro- 
ceedings to  be  instituted  against  him  in 
accordance  with  the  provisions  of  the 
Acts  of  Congress  of  March  3,  1899  (30 
Stat,  at  L.  1121,  1151-1153,  chap.  425.  U.  S. 
Comp.  Stat.  1901,  pp.  3541,  3542,  3544),  §§ 
11,  12,  17,  for  undertaking  the  reclama- 
tion and  occupation  of  land  Ijelonging  to 
him  beyond  the  prescribed  harbor  limits. 
Philadelphia  Co.  v.  Stimson,  223  U.  S. 
605,   56   L.    Ed.   570,  32   S.   Ct.   340. 

1032-38.  Defendant's  interest  to  be  con- 
sidered.— Injunctive  relief  will  not  be 
granted  to  the  proprietor  of  a  mercantile 
agency  publishing  at  intervals  a  copy- 
righted book  giving  information  as  to  the 
business,  capital,  and  credit  rating  of  mer- 
chants, manufactures,  and  traders,  be- 
cause of  the  improper  use  of  such  work 
with  respect  to  a  few  names  by  a  corpora- 
tion publishing  a  similar  book  limited  to 
those  engaged  in  lumber  and  kindred 
trades,  where  the  latter  book  contains 
about  60,000  names,  25  per  cent  more  than 
the  former,  and  the  subjects  of  informa- 
tion given  by  it  concerning  the  persons 
named  are  six  times  as  many  as  are  given 
by  the  other  work.  Dun  v.  Lumbermen's 
Credit  Ass'n,  209  U.  S.  20,  52  L.  Ed.  663, 
28    S.    Ct.   335. 

1034-51.  Prior  establishment  of  right  or 
title. — Lawson  v.  United  States  Min.  Co., 
207  U.  S.  1,  52  L.  Ed.  65.  28  S.  Ct.  15. 

1035-57.  Want  of  other  adequate  rem- 
edy.— Ravmond  v.  Chicago  Union  Tract. 
Co..  207   U.   S.  20,  52   L.    Ed.  78.  28   S.   Ct. 


7;  Boise  Artesian  etc..  Water  Co.  v.  Boise 
City,  213  U.  S.  276,  53  L.  Ed.  796,  29  S.  Ct. 
426. 

1038-62.  What  constitutes  adequate  rem- 
edy.—See  ante,  EQUITY,  p.  550. 

1038-63.  Boise  Artesian,  etc..  Water  Co. 
V.  Boise  City,  213  U.  S.  276,  53  L.  Ed.  796, 
29   S.   Ct.  426. 

Suits  to  recover  illegally  collected 
taxes. — Raymond  v.  Chicago  Union  Tract. 
Co.,  207  U.  S.  20,  52  L.  Ed.  78,  28  S.  Ct.  7. 

Injunctive  relief  against  ticket  brokers 
dealing  in  nontransferable  reduced-rate 
excursion  tickets  will  not  be  denied  on 
the  ground  that  an  adequate  remedy  at 
law  exists,  where  such  brokers  admit  past 
dealings,  and  avow  their  purpose  to  con- 
tinue the  practice,  and  where  the  number 
of  such  tickets  issued  is  large,  the  risk  to 
be  incurred  by  the  steps  necessary  to  pre- 
vent their  wrongful  use  is  considerable, 
and  numerous  suits  will  be  necessitated  if 
redress  is  sought  at  law.  Judgment,  Louis- 
ville &  N.  R.  Co.  V.  Bitterman  (1906),  144 
F.  34,  75  C.  C.  A.  192,  affirmed.  Bitterman 
V.  Louisville,  etc.,  R.  Co.,  207  U.  S.  205,  52 
L.  Ed.  171.  28  S.  Ct.  91.  See,  generally, 
ante,  CARRIERS,  p.  216. 

1041-79a.  Reasonable  apprehension  of 
danger. — First  Nat.  Bank  v.  Albright,  208 
U.   S.  548,  52  L.   Ed.  614,  28  S.  Ct.  349. 

Equity  will  not  enjoin  a  reassessment 
of  a  tax  on  the  stock  and  real  property 
of  a  national  bank  because  of  the  appre- 
hension that  U.  S.  Rev.  Stat.,  §  5219  will 
be  violated  by  the  assessing  officer  in 
making  the  assessment.  First  Nat.  Bank 
r.  Albright,  208  U.  S.  548,  52  L.  Ed.  614, 
28  S.  Ct.  349. 

1041-80.  Irreparable  injury — Not  com- 
pensated in  damages — Enforcement  of 
statutes,  ordinances  or  other  regulations. 
— A  case  for  injunctive  relief  is  presented 
where  the  secretary  of  state  threatens  to 
issue  a  proclamation  in  his  official  capac- 
ity, under  the  authorit3^  of  a  state  stat- 
ute which  violates  the  federal  constitu- 
tion, that  a  foreign  telegraph  company  is 
forbidden,  under  the  heavy  penalties  pre- 
scribed by  that  statute,  to  continue  to  do 


660 


Vol.  VI. 


INJUNCTIONS. 


1043-1046 


Boycotting. — Courts  differ  as  to  what  constitutes  a  boycott  that  may  be  en- 
joined. All  hold  that  there  must  be  a  conspiracy  causing  irreparable  damage  to 
the  business  or  property  of  the  complainant. ^^^  Some  hold  that  a  boycott  against 
the  complainant,  by  a  combination  of  persons  not  immediately  connected  with 
him  in  business,  can  be  restrained.  Others  hold  that  the  secondary  boycott  can 
be  enjoined,  where  the  conspiracy  extends  not  only  to  in  jurying  the  complainant, 
but  secondarily  coerces  or  attempts  to  coerce  his  customers  to  refrain  from  deal- 
ing with  him  by  threats  that  unless  they  do,  they  themselves  will  be  boycotted. 
Others  hold  that  no  boycott  can  be  enjoined  unless  there  are  acts  by  physical  vio- 
lence or  intimidation  caused  by  threats  of  physical  violence. ^^'^ 

Boxing  and  Cutting  Timber. — Equity  may  intervene  by  injunction  to  pre- 
vent the  wrongful  boxing  and  cutting  of  timber  valuable  for  turpentine  purposes, 
since  the  remedy  at  law  in  damages  is  of  doubtful  adequacy. ^-^^^ 

f.  Unconstitutionality  of  Statute. — No  injunction  against  state  officers,  to  pre- 
vent the  enforcement  of  a  state  statute  as  unconstitutional,  should  be  granted  ex- 
cept in  cases  reasonably  free  from  doubt. ^^^     it  can  not  be  doubted  that,  in  a 


local  business  in  the  state.  Decree,  Chi- 
cago, R.  I.  &  P.  Ry.  Co.  V.  Ludwig  (C.  C. 
1907),  156  F.  152,  affirmed.  Ludwig  v. 
Western  Union  Tel.  Co.,  216  U.  S.  146,  54 
L.  Ed.  423,  30  S.  Ct.  280. 

Negative  or  restrictive  covenants  or 
stipulations  in  general. — Injunctive  relief 
will  not  be  granted  in  equity  against  the 
disposal  of  sugar  cane  elsewhere  than  at 
the  sugar  factory  designated  in  a  con- 
tract with  the  growers,  as  a  suit  for  dam- 
ages will  afford  adequate  relief.  Javierre 
V.  Central  .Altagracia,  217  U.  S.  502,  54  L. 
Ed.  859,  30  S.  Ct.  598. 

Boycotts  and  other  combinations. — A 
court  of  equity  may  enjoin  the  continu- 
ance of  a  boycott,  although  spoken  words 
or  written  matter  were  used  as  one  of  the 
instrumentalities  by  which  the  boycott  was 
made  effective.  Goinpers  v.  Bucks  Stove, 
etc.,  Co.,  221  U.  S.  418,  55  L.  Ed.  797,  31 
S.  Ct.  492,  reversing  judgment  (1909),  33 
App.    D.    C.   516. 

1043-84a.  Boycotting. — Gompers  r. 
Bucks  Stove,  etc.,  Co.,  221  U.  S.  418,  5.-> 
L.  Ed.  797,  31  S.  Ct.  492. 

1043-84b.  Gompers  v.  Bucks  Stove,  etc., 
Co.,  221  U.  S.  418,  55  L.  Ed.  797,  31  S.  Ct. 
492. 

Publication  of  letters,  circulars,  etc. — 
"But  whatever  the  requirement  of  the 
particular  jurisdiction,  as  to  the  conditions 
on  which  the  injunction  against  a  boy- 
cott may  issue,  when  these  facts  exist, 
the  strong  current  of  authority  is  that  the 
publication  and  use  of  letters,  circulars, 
and  printed  matter  may  constitute  a  means 
whereby  a  boycott  is  unlawfully  contin- 
ued, and  their  use  for  such  purpose  may 
amount  to  a  violation  of  the  order  of  in- 
junction." Gompers  v.  Bucks  Stove,  etc.. 
Co.,  221  U.  S.  418,  55  L.  Ed.  797,  31  S.  Ct. 
492,  citing  Reynolds  f.  Davis,  198,  Mass. 
300,  17  L.  R.  A.  (N.  S.),  162,  84  N.  E.  457; 
Sherry  z\  Perkins,  147  Mass.  212,  9  Am. 
St.  Rep.  689,  17  N.  E.  307;  Davis  v.  New 
England  R.  Pub.  Co.  203  Mass.  470,  25  L. 


R.  A.  (N.  S.),  1024,  133  Am.  St.  Rep.  318, 
89  N.  E.  565;  Brown  v.  Jacobs'  Pharmacy 
Co.  115  Ga.  413,  452,  57  L.  R.  A.  547,  90 
Am.  St.  Rep.  126,  41  S.  E.  553;  Gray  v. 
Building  Trades'  Council,  91  Minn.  183, 
63  L.  R.  A.  753,  103  Am.  St.  Rep.  477,  97 
N.  W.  663,  1118,  1  A.  &  E.  Ann.  Cas.  172; 
Lohse  Patent  Door  Co.  z\  Fuelle,  215  Mo. 
421,  472,  22  L.  R.  A.  (N.  S.),  607,  128  Am. 
St.  Rep.  492,  114  S.  W.  997;  Thomas  v. 
Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  4  Inters. 
Com.  Rep.  788,  62  Fed.  803,  821;  Con- 
tinental Ins.  Co.  V.  Fire  Underwriters,  67 
Fed.  312;  Beck  z'.  Railway  Teamsters' 
Protective  Union,  118  Mich.  527,  42  L.  R. 
A.  407,  74  Am.  St.  Rep.  421,  77  N.  W.  13; 
Pratt  Food  Co.  z:  Bird,  148  Mich.  632,  118 
Am.  St.  Rep.  601,  112  N.  W.  701;  Barr  v. 
Essex  Trades'  Council,  53  N.  J.  Eq.  102, 
30  Atl.  881.  See,  also,  Ludwig  z:  Western 
Union  Tel.  Co.,  216  U.  S.  146,  156,  54  L. 
Ed.  423,  30  S.  Ct.  280;  Bitterman  v.  Louis- 
ville, etc.,  R.  Co.,  207  U.  S.  205,  206,  52  L. 
Ed.  171,  28  S.  Ct.  91;  Board  v.  Christie 
Grain,  etc.,  Co.,  198  U.  S.  236.  49  L.  Ed. 
1031,  25  S.  Ct.  637;  Scully  v.  Bird,  209  U. 
S.  481,  489,  52  L.   Ed.  899,  28  S.  Ct.  597. 

1043-84C.  Boxing  and  cutting  timber. — 
Graves  z:  Ashburn,  215  U.  S.  331,  54  L.  Ed. 
217,  30  S.   Ct.   108. 

1046-95a.  Enjoining  enforcement  of  un- 
constitutional law. — "In  Ex  parte  Young, 
209  U.  S.  123,  52  L.  Ed.  714,  28  S.  Ct.  441, 
the  last  word  of  caution  by  this  court  was 
said  (p.  166):  'Finally,  it  is  objected  that 
the  necessary  result  of  upholding  this  suit 
in  the  circuit  court  will  be  to  draw  to  the 
lower  federal  courts  a  great  flood  of  liti- 
gation of  this  character,  where  one  federal 
judge  would  have  it  in  his  power  to  en- 
join proceedings  by  state  officials  to  en- 
force the  legislative  acts  of  the  state, 
either  by  criminal  or  civil  actions.  To  this 
it  may  be  answered,  in  the  first  place,  that 
no  injunction  ought  to  be  granted  unless 
in  a  case  reasonably  free  from  doubt.  We 
think  such   rule  is,  and  will   be,   followed 


661 


1046 


INJUNCTIONS. 


Vol.  VI. 


clear  case  of  confiscation,  it  is  the  right  and  duty  of  the  court  to  annul  a  law.^^'' 
The  courts  should  not  enjoin  the  enforcement  of  a  municipal  ordinance  on  the 
ground  that  such  ordinance  is  confiscatory,  unless  the  confiscation  is  clearly  ap- 
parent.^^" 

Grounds  of  Equitable  Jurisdiction. — It  has  been  held  uniformly  that  the 
illegality  or  unconstitutionality  of  a  state  or  municipal  tax  or  imposition  is  not 
of  itself  a  ground  for  equitable  relief  in  the  courts  of  the  United  States.  In  such 
a  case  the  aggrieved  party  is  left  to  his  remedy  at  law,  when  that  remedy  is  as 
complete,  practicable,  and  efficient  as  the  remedy  in  equity.  And  the  rule  ap- 
plies as  well  where  the  right  asserted  is  by  way  of  defense.^^"*  In  order  to  give 
equity  jurisdiction,  there  must  be  shown,  in  addition  to  the  illegality  or  uncon- 


by  all  the  judges  of  the  federal  courts.'  " 
Knoxville  v.  Knoxville  Water  Co.,  212  U. 
S.  1,  53  L.  Ed.  371,  29  S.  Ct.  148. 

"The  same  thought,  in  effect,  was  ex- 
pressed in  San  Diego  Land,  etc.,  Co.  v. 
National  City,  174  U.  S.  739,  754,  43  L.  Ed. 
1154,  19  S.  Ct.  804:  'Judicial  interference 
should  never  occur  unless  the  case  pre- 
sents, clearly  and  beyond  all  doubt,  such 
a  flagrant  attack  upon  the  rights  of  prop- 
erty under  the  guise  of  regulations  as  to 
compel  the  court  to  say  that  the  rates 
prescribed  will  necessarily  have  the  effect 
to  deny  just  compensation  for  private 
property  taken  for  the  public  use.'  "  Knox- 
ville V.  Knoxville  Water  Co.,  212  U.  S.  1, 
53   L.   Ed.   371,  29   S.   Ct.  148. 

"And  in  San  Diego  Land,  etc.,  Co.  v. 
Jasper,  189  U.  S-  439,  47  L.  Ed.  892,  23  S. 
Ct.  571,  after  repeating  with  approval  this 
language,  it  was  said  (p.  441):  'In  a  case 
like  this  we  do  not  feel  bound  to  re-ex- 
amine and  weigh  all  the  evidence,  although 
we  have  done  so,  or  to  proceed  accord- 
ing to  our  independent  opinion  as  to  what 
were  proper  rates.  It  is  enough  if  we  can 
not  say  that  it  was  impossible  for  a  fair- 
minded  board  to  come  to  the  result  which 
was  reached.' "  Knoxville  v.  Knoxville 
Water  Co.,  212  U.  S.  1,  53  L.  Ed.  371,  29 
S.   Ct.   148. 

1046-95b.  In  clear  cases  of  confiscation. 
—"The  courts,  in  clear  cases,  ought  not 
to  hesitate  to  arrest  the  operation  of  a 
confiscatory  law,  but  they  ought  to  re- 
frain from  interfering  in  cases  of  any 
other  kind."  Knoxville  v.  Knoxville  Water 
Co.,  212  U.  S.  1,  53  L.  Ed.  371,  29  S.  Ct. 
148. 

The  case  must  be  a  clear  one  before 
the  courts  should  be  asked  to  interfere 
by  injunction  with  state  legislation  regu- 
lating gas  rates,  in  advance  of  any  actual 
experience  of  the  practical  result  of  such 
rates.  Willcox  v.  Consolidated  Gas  Co., 
212  U.  S.  19,  53  L.  Ed.  382,  29  S.  Ct. 
192. 

Thus,  in  Reagan  v.  Farmers'  Loan,  etc., 
Co.,  154  U.  S.  362,  38  L.  Ed.  1014,  14  S. 
Ct.  1047,  where  the  property  was  worth 
more  than  its  capitalization,  and,  upon 
the    admitted    facts,    the    rates  prescribed 


would  not  pay  one  half  the  interest  on 
the  bonded  debt;  in  Covington,  etc.,  Road 
Co.  V.  Sandford,  164  U.  S.  578,  41  L.  Ed. 
560,  17  S.  Ct.  198,  where  the  rates  pre- 
scribed would  not  even  pay  operating  ex- 
penses: in  Smyth  v.  Ames,  169  U.  S.  466, 
43  L.  Ed.  819,  18  S.  Ct.  418,  where  the 
rates  prescribed  left  substantially  nothing 
over  operating  expenses  and  cost  of  serv- 
ice, and  in  Ex  parte  Young,  209  U.  S.  123, 

52  L.  Ed.  714,  28  S.  Ct.  441,  where,  on  the 
aspect  of  the  case  which  was  before  the 
court,  it  was  not  disputed  that  the  rates 
prescribed  were  in  fact  confiscatory,  in- 
junctions were  severally  sustained.  Knox- 
ville V.  Knoxville  Water  Co.,  212  U.  S.  1, 

53  L.  Ed.  371,  29  S.  Ct.  148. 

Trial  of  rate  law  should  be  had. — A 
court  of  equity  ought  not  to  interfere  by 
injunction  with  state  legislation  fixing  gas 
rates  before  a  fair  trial  has  been  made 
of  continuing  the  business  under  such 
rates  where  the  rates  complained  of  show 
a  very  narrow  line  of  division  between 
possible  confiscation  and  proper  regula- 
tion, as  based  upon  the  findings  as  to  the 
value  of  the  property,  and  the  division 
depends  upon  variant  opinions  as  to  value 
and  upon  the  results  in  the  future  of  op- 
erating under  such  rates.  Willcox  v.  Con- 
solidated Gas  Co.,  212  U.  S.  19,  53  L.  Ed. 
382,  29  S.  Ct.  192. 

The  enforcement  of  a  municipal  ordi- 
nance fixing  telephone  rates  should  not 
be  enjoined  as  confiscatory  before  giving 
such  ordinance  a  trial  to  show  its  actual 
effect,  where  the  e\idence  leaves  the  prob- 
able result  very  close  to  the  dividing  line 
between  the  yield  of  a  fair  return  and 
confiscation.  Louisville  v.  Cumberland 
Tel.,  etc.,  Co.,  225  U.  S.  430,  56  L.  Ed. 
1151,   32   S.   Ct.   741. 

1046-95C.  Confiscating  municipal  ordi- 
nance.-— -Knoxville  v.  Knoxville  Water  Co., 
212  U.  S.  1,  53  L.  Ed.  371,  29  S.  Ct.  148. 

1046-95d.  Grounds  of  equitable  juris- 
diction.— Boise  Artesian,  etc..  Water  Co. 
V.  Boise  City,  213  U.  S.  276,  53  L.  Ed.  796, 
29  S.  Ct.  426,  citing  Insurance  Co.  v.  Bai- 
ley, 13  Wall.  616,  623,  20  L.  Ed.  501.  See 
ante,  EQUITY,  p.  550. 


662 


Vol.  VI. 


INJUNCTIONS. 


1046 


stitutionality  of  the  tax  or  imposition,  other  circumstances  bringing  the  case  un- 
der some  recognized  head  of  equity  jurisdiction,  before  the  remedy  by  injunction 
can  be  awarded. ^^^ 

4.  Conduct  of  Plaintiff  as  Affecting  Right— b.  Offer  to  Do  Equity.^ 
Taxation— Tender  of  Amount  Justly  Due.— As  to  necessity  for  tender  as  a 
condition  precedent  to  a  suit  to  enjoin  the  collection  of  an  illegal  or  excessive 
tax,  in  whole  or  in  part,  see  post.  Taxation. 


1046-95e.  Must  come  within  some  rec- 
ognized head  of  equity  jurisdiction. — The 
leading  case  on  the  subject  is  Dows  v. 
Chicago,  11  Wall.  108,  20  L.  Ed.  65.  In 
that  case  the  plaintiff  sought  to  enjoin  the 
collection  of  a  tax  levied  upon  shares  of 
the  capital  stock  of  a  national  bank  on 
the  ground  that  the  levy  was  unconstitu- 
tional under  the  state  law,  and  that  the 
property  was  not  within  the  jurisdiction 
of  the  state.  Boise  Artesian,  etc.,  Water 
Co.  V.  Boise  City,  213  U.  S.  276,  53  L.  Ed. 
796.  29   S.   Ct.  426. 

"This  case  has  been  frequently  followed 
and  its  governing  principles  never  doubted. 
Hannewinkle  v.  Georgetown,  15  Wall. 
547,  21  L.  Ed.  231;  State  Railroad  Tax 
Cases,  92  U.  S.  575,  613,  23  L.  Ed.  663; 
Union  Pac.  R.  Co.  v.  Cheyenne,  113  U.  S. 
516,  526,  28  L.  Ed.  1098,  5  S.  Ct.  601; 
Milwaukee  v.  Koeffler.  116  U.  S.  219,  29 
L.  Ed.  612,  6  S.  Ct.  372;  Pittsburgh,  etc., 
Railway  v.  Board,  172  U.  S.  32,  43  L.  Ed. 
354,  19  S.  Ct.  90;  Arkansas  Bldg.,  etc., 
Ass'n  V.  Madden,  175  U.  S.  269,  44  L.  Ed. 
159,  20  S.  Ct.  119."  Boise  Artesian,  etc., 
Water  Co.  z:  Boise  City,  213  U.  S.  276, 
53  L.  Ed.  796,  29  S.  Ct.  426. 

"In  Shelton  v.  Piatt,  139  U.  S.  591,  35 
L.  Ed.  273,  11  S.  Ct.  646,  a  bill  was  filed  in 
the  circuit  court  of  the  United  States  to 
restrain  the  collection  of  a  license  tax  im- 
posed by  the  state  of  Tennessee  on  the 
United  States  Express  Company,  upon 
the  ground  that  is  was  unconstitutional. 
The  writ  was  refused."  Boise  Artesian, 
etc..  Water  Co.  v.  Boise  City,  213  U.  S. 
276.   53   L.   Ed.   796,  29   S.   Ct.  426. 

"This  case  was  followed  in  Allen  v. 
Pullman's  Palace  Car  Co.,  139  U.  S.  658, 
35  L.  Ed.  303,  11  S.  Ct.  682,  and  in  Pacific 
Exp.  Co.  V.  Seibert,  142  U.  S.  339,  35  L. 
Ed.  1035,  12  S.  Ct.  250,  where  a  tax  was 
alleged  to  be  unconstitutional  because 
imposed  upon  interstate  commerce,  be- 
cause it  denied  to  the  taxpayer  the  equal 
protection  of  the  laws,  and  because  it  was 
void  for  repugnancy  to  the  constitution  of 
the  state."  Boise  Artesian,  etc..  Water  Co. 
z'.  Boise  City,  213  U.  S.  276,  53  L.  Ed. 
796.  29   S.   Ct.   426. 

"In  Walla  Walla  v.  Walla  Walla  Water 
Co.,  172  U.  S.  1,  43  L.  Ed.  341,_the  city 
was  about  to  construct,  in  violation  of  its 
contract,  a  competing  water  plant,  and  the 
resulting  damage  to  the  company  would 
have  been  irreparable.  The  same  condi- 
tions   existed    in    Vicksburg    Waterworks 


Co.  V.  Vicksburg,  185  U.  S.  65,  46  L.  Ed. 
808,  22  S.  Ct.  585.  See  S.  C,  202  U.  S.  453, 
50  L.  Ed.  1102,  26  S.  Ct.  660."  Boise 
Artesian,  etc..  Water  Co.  v.  Boise  City, 
213  U.  S.  276,  53  L.  Ed.  796,  29  S.  Ct.  426. 

"In  Detroit  v.  Detroit,  etc.,  St.  R.  Co., 
184  U.  S.  368,  46  L.  Ed.  592,  22  S.  Ct.  410, 
a  schedule  of  rates  for  transportation  of 
passengers  was  fixed'  in  violation  of  the 
contract  rights  of  the  companj^  and  pos- 
sible suits  would  be  limited  only  by  the 
number  of  passengers.  The  same  condi- 
tion existed  in  Cleveland  v.  Cleveland 
City  R.  Co.,  194  U.  S.  517,  48  L.  Ed.  1102, 
24  S.  Ct.  756.  And  see  Ex  parte  Young, 
209  U.  S.  123,  52  L.  Ed.  714,  28  S.  Ct.  441, 
where  the  grounds  of  the  jurisdiction  in 
equity  in  rate  cases  are  fully  set  forth 
and  discussed."  Boise  Artesian,  etc.,  Water 
Co.  V.  Boise.  City,  213  U.  S.  276,  53  L.  Ed. 
796.  29   S.   Ct.   426. 

"In  Ogden  City  v.  Armstrong,  168  U.  S. 
224,  42  L.  Ed.  444,  18  S.  Ct.  98,  not  only 
was  there  danger  of  a  multiplicity  of 
suits,  but  the  tax  there  in  question  was  a 
lien  upon  realty  and  a  cloud  on  the  title." 
Boise  Artesian,  etc..  Water  Co.  v.  Boise 
City,  213  U.  S.  276,  53  L.  Ed.  796,  29  S. 
Ct.   426. 

Allegations  failing  to  show  equity  juris- 
diction.— Circumstances  bringing  the  case 
within  some  acknowledged  head  of  equity 
jurisdiction  so  as  to  give  the  right  to 
injunctive  relief  in  a  federal  court  against 
the  enforcement  of  a  municipal  ordinance 
imposing  a  license,  fee  upon  a  water  com- 
pany, upon  the  ground  that  such  ordi- 
nance is  unconstitutional,  illegal,  and  void, 
are  not  shown  by  a  vague  allegation  in 
the  bill  that  the  city  has  threatened  to 
remove  the  company's  pipes  and  works, 
without  averring  any  facts  showing  such 
threat,  or  by  suggesting  the  danger  of  a 
multiplicity  of  suits,  or  of  the  casting  of 
a  cloud  upon  the  title  of  the  company  to 
its  franchises,  where  a  single  action  has 
been  brought  to  collect  the  license  fee, 
with  an  honest  purpose  to  settle  the  rights 
of  the  parties,  and  the  real  basis  for  the 
contention  as  to  the  cloud  on  title  is  that 
the  city's  claim  that  the  company  has  no 
more  than  a  mere  permission  to  occupy 
the  streets,  which  is  the  reason  said  to 
have  induced  the  enactment  of  the  ordi- 
nance, unfavorably  affects  the  company's 
property  and  impairs  its  credit.  Boise 
Artesian,  etc.,  Water  Co.  z'.  Boise  City, 
213  U.  S.  276,  53  L.  Ed.  796,  29  S.  Ct.  426. 


663 


1047-1052 


INJUNCTIONS. 


Vol.  VI. 


c.  Laches  and  Negligence — (  1 )  In  General. — Laches  may  bar  the  right  to  in- 
junctive process.^''" 

B.  In  Particular  Instances — 1.  In  Gene;ral. — See  reference  given  in  vol. 
6,  p.  1048. 

2.  Against  Actions  at  Law  and  Other  Legal  Proceedings — a.  Actions  at 
l^aw — (2)  Grounds  of  Jurisdiction — (c)  Multiplicity  of  Suits. — Where  the  mul- 
tiplicity of  suits  to  be  feared  consists  in  repetitions  of  suits  by  the  same  person 
against  the  plaintiff  for  causes  of  action  arising  out  of  the  same  facts  and  legal 
principles,  a  court  of  equity  ought  not  to  interfere  upon  that  ground  unless  it  is 
clearly  necessary  to  protect  the  plaintiff  from  continued  and  vexatious  litigation. 
Something  more  is  required  than  the  beginning  of  a  single  action  with  an  honest 
purpose  to  settle  the  rights  of  the  parties. ^••'' 

VI.    Procedure  to  Obtain. 

A.  Jurisdiction. — See  ante,  "J^^^'sdiction,"  IV.  See  ante.  Courts,  p.  398; 
Equity,  p.  550;  post.  Jurisdiction. 

Nature  of  Tribunal — Number  of  Judges. — Congress  having  declared  that 
the  merits  of  the  application  for  an  interlocutory  injunction  should  be  consid- 
ered and  determined  by  a  tribunal  consisting  of  three  judges,  constituted  as  pro- 
vided in  the  act,  it  results  that  a  tribunal  not  so  constituted  does  not  possess  ju- 
risdiction over  the  subject  matter  of  the  right  to  such  inj unction. ^-^^ 

B.  Parties — 3.  Parties  Defendant — a.  Proper  and  Necessary  Parties. — 
See  note  32. 


1047-99a.    Laches  and  negligence. — Cres- 

will  7'.  Grand  Lodge  Knights  of  Pythias, 
225  U.  S.  246,  56  L.  Ed.  1074,  32  S.  Ct. 
822.  See  post,  LACHES. 

Injunction  against  fraternal  order. — The 
inaction  of  a  fraternal  order  during  the 
many  years  in  which  a  newer  order,  taking 
the  same  name,  has  existed  in  the  state 
and  had  exercised  its  attributes  and  func- 
tions, is  such  laches  as  defeats  the  former's 
right  to  injunctive  relief  against  the  in- 
fringement of  its  name  and  the  copying  of 
its  insignia  and  emblems.  Creswill  r. 
Grand  Lodge  Knights  of  Pythias,  225  U. 
S.  246,  56  L.  Ed.  1074,  32  S.  Ct.  822. 

1049-13a.  Multiplicity  of  suits. — Boise 
Artesian,  etc.,  Water  Co.  v.  Boise  City,  213 
U.  S.  276,  53  L.  Ed.  796,  29  S.  Ct.  426. 

Perhaps  it  might  be  necessary  to  await 
the  final  decision  of  one  action  at  law, 
see,  for  analogies,  Sharon  v.  Tucker,  144 
U.  S.  533,  36  L.  Ed.  532,  12  S.  Ct.  720; 
Boston,  etc.,  Min.  Co.  v.  Montana  Ore 
Purchasing  Co.,  188  U.  S.  632,  47  L.  Ed. 
626,  23  S.  Ct.  434,  but  that  need  not  be  de- 
cided. Boise  Artesian,  etc.,  Water  Co.  :'. 
Boise  City,  213  U.  S.  276,  53  L.  Ed.  796, 
29  S.  Ct.  426. 

A  court  of  equity  ought  not  to  inter- 
fere upon  the  ground  of  multiplicity  of 
suits  by  the  same  person  against  the  com- 
plainant for  causes  of  action  arising  out 
of  the  same  facts  and  legal  principles,  un- 
less it  is  clearly  necessary  to  protect  the 
complainant  against  continued  litigation. 
Boise  Artesian,  etc..  Water  Co.  v.  Boise 
City,  213  U.  S.  276,  53  L.  Ed.  796,  29  S.  Ct. 
426. 


1051-24a.  Nature  of  tribunal — Number 
of  judges. — Ex  parte  Metropolitan  Water 
Co.,  220  U.  S.  539,  55  L.  Ed.  575,  31  S.  Ct. 
600. 

A  temporary  restraining  order  suspend- 
ing, on  constitutional  grounds,  the  enforce- 
ment of  a  state  statute  by  restraining  the 
action  of  a  state  officer  thereunder,  can  not 
be  vacated,  nor  can  an  application  for  an 
interlocutory  injunction  be  denied,  by  a 
single  federal  judge,  since  the  enactment 
of  Act  June  18,  1910,  c.  309,  §  17,  36  Stat. 
557,  which  prohibits  the  granting  of  such 
an  application  except  after  a  hearing  be- 
fore three  judges,  two  of  whom  must 
concur  in  granting  it,  and  provides  that, 
when  such  an  application  is  made,  the 
judge  shall  call  two  other  judges  to  his 
assistance  to  hear  and  determine  it,  but 
may  grant  a  te:nporary  restraining  order, 
if  of  the  opinion  that  irreparable  injury 
will  otherwise  result,  to  remain  in  force 
only  until  the  hearing  and  determination 
of  the  application,  and  gives  an  appeal 
from  the  order  granting  or  denying  an  in- 
terlocutory injunction  after  notice  and 
hearing.  Ex  parte  Metropolitan  Water 
Co.,  220  U.  S.  539,  55  L.  Ed.  575,  31  S.  Ct. 
600. 

1052-32.  Proper  and  necessary  parties. — 
The  duty  imposed  upon  the  attorney  gen- 
eral of  a  state  by  the  common  law  and 
statutes,  requiring  him  to  cause  proceed- 
ings to  be  instituted  against  any  corpora- 
tion whenever  it  shall  have  offended 
against  the  laws  of  the  state,  and  to  en- 
force the  railroad  rate  law  at  the  instance 
of  the  railroad  commission,  sufficiently  , 
connects    him    with    the    enforcement    of 


664 


Vol.  VI. 


INJUNCTIOXS. 


1054-106a 


D.  Pleading — 1.  Bill  or  Complaint — Form  and  Reouisitls — a.  Allega- 
tions as  to  Grounds  of  Application — (1)    Certainty  and  Clearness. — See  note  40. 

F.  Evidence — 1.  Presumptions  and  Burden  oF'  Proof. — An  allegation  of 
fact  that  is  material  only  as  an  indirect  negative  of  something  to  be  proved  by 
the  other  party  does  not  shift  the  burden  of  proof.'''*^ 

I.  Writ  or  Order — 3.  Temporary  Restraining  Order  and  Interlocutory 
Injunction  Distinguished. — A  temporary  restraining  order  is  distinguished 
from  an  interlocutory  injunction,  in  that  it  is  ordinarily  granted  merely  pending 
the  hearing  of  a  motion  for  a  temporary  injunction,  and  its  life  ceases  with  the 
disposition  of  that  motion  and  without  further  order  of  the  court;  while  an  in- 
terlocutory injunction  is  usually  granted  until  the  coming  in  of  the  answer  or 
until  the  linal  hearing  of  the  cause,  and  stands  as  a  binding  restraint  until  re- 
scinded by  the  further  action  of  the  court.'^^^ 

K.  Final  Decree — 2.  Scope  of  Restraint — a.  Dependent  on  Bill  or  Com- 
plaint.— As  to  relief  granted  under  prayer  in  bill  or  petition,  see  ante.  Equity,  p. 
550. 

b.  Limitation  of  Decree  to  Relief  Sought — (1)  In  General. — But  injunctive 
relief  against  ticket  brokers  unlawfully  dealing  in  nontransferable  reduced-rate 
excursion  tickets  may  extend  to  the  restraining  of  like  dealings  as  to  similar  tick- 
ets which  may  be  issued  in  the  future. ^^'^ 


the  statute  to  make  him  a  proper  party  to 
a  suit  to  enjoin  its  enforcement.  Ex  parte 
Young,  209  U.  S.  123,  52  L.  Ed.  714, 
28    S.    Ct.   441. 

1054-40.  Certainty  and  clearness — Mul- 
tifariousness.— See  post,  MULTIFARI- 
OUSNESS. 

1057-64a.  Presumptions  and  burden  of 
proof. — Persons  seeking  to  escape  from 
the  obligations  of  a  contract  to  deliver 
sugar  cane  at  a  specified  sugar  factory 
for  grinding,  because  of  the  happening  of 
a  condition  subsequent  embodied  in  a  pro- 
viso in  the  contract,  justifying  cancella- 
tion if  a  projected  sugar  mill  should  be 
erec*^ed  or  its  construction  started  by  a 
certain  date,  are  charged  with  the  burden 
of  proving  that  the  identical  mill  referred 
to  in  the  contract  has  been  so  built  or 
started,  although  the  bill  alleges  affirma- 
tively a  conspiracy  to  evade  the  undertak- 
ing by  way  of  replication  to  the  answer 
setting  up  the  condition.  Javierre  v.  Cen- 
tral Altagracia,  217  U.  S.  502,  54  L.  Ed. 
859.  .30  S.  Ct.  598. 

1059-78a.  Temporary  restraining  order 
and  interlocutory  injunction  distinguished. 
—Houghton  V.  Meyer,  208  U.  S.  149,  52  L. 
Ed.  432,  28  S.  Ct.  234. 

1060-86a.  Scope  of  relief — Injunction 
against  ticket  broker. — Bitterman  v.  Lou- 
isville, etc..  R.  Co.,  207  U.  S.  205,  52  L.  Ed. 
171,  28  S.  Ct.  91,  affirming  144  Fed.  34,  77 
CCA   192 

"In  Scott  f.  Donald,  165  U.  S.  107,  41  L. 
Ed.  648,  17  S.  Ct.  262,  on  holding  a  partic- 
ular seizure  of  liquor  under  the  South 
Carolina  dispensary  law  to  be  invalid,  an 
injunction  was  sustained,  not  only  ad- 
dressed to  the  seizure  in  controversy,  but 
which  also  operated  to  restrain  like  sei- 
zures of  liquors  in  the  future,  and  the  ex- 
ertion of  the  same  character  of  power  liy 


a  court  of  equity  was  upheld  in  the  cases 
of  Donovan  v.  Pennsylvania  Co.,  199  U.  S. 
279,  50  L.  Ed.  192,  26  S.  Ct.  91,  and  Swift 
&  Co.  V.  United  States,  196  U.  S.  375,  49 
L.  Ed.  518,  25  S.  Ct.  276."  Bitterman  v. 
Louisville,  etc.,  R.  Co.,  207  U.  S.  205,  5^ 
L.  Ed.  171,  28  S.  Ct.  91. 

"Nor  is  there  merit  in  the  contention 
that  the  decision  in  New  York,  etc.,  R.  Co. 
I'.  Interstate  Commerce  Comm.,  200  U.  S. 
361,  404,  50  L.  Ed.  515,  26  S.  Ct.  272,  sup- 
ports the  view  here  relied  upon  as  to  the 
limited  authority  of  a  court  of  equity  to 
enjoin  the  continued  commission  of  the 
same  character  of  acts  as  those  adjudged 
to  be  wrongful.  On  the  contrary,  the  rul- 
ing in  that  case  directly  refutes  the  claim 
based  on  it.  There  certain  acts  of  tb" 
carrier  were  held  to  have  violated  the  act 
to  regulate  commerce.  The  contention  of 
the  government  was  that,  because  ^^•r(')n  - 
ful  acts  of  a  particular  character  had  been 
committed,  therefore  an  injunction  should 
be  awarded  against  any  and  all  violations 
in  the  future  of  the  act  to  regulate  com- 
merce. Whilst  this  broad  request  was  de- 
nied, it  was  carefully  pointed  out  that  the 
power  existed  to  enjoin  the  future  com- 
mission of  like  acts  to  those  found  to  be 
illegal,  and  the  injunction  was  so  awarded." 
Bitterman  -'.  Louisville,  etc.,  R.  Co.,  207 
U.  S.  205,  52  L.  Ed.  171,  28  S.  Ct.  91. 

"The  whole  argument  here  made  results 
from  a  failure  to  distinguish  between  an 
injunction  generally  restraining  the  com- 
mission of  illegal  acts  in  the  future  and 
one  which  simply  restrains  for  the  future 
the--,  commission  of  acts  identical  in  char- 
acter with  those  which  have  been  the  sub- 
ject of  conrtoversy,  and  which  have  been 
adjudged  to  be  "illegal."  Bitterman  v. 
Louisville,  etc.,  R.  Co.,  207  U.  S.  205,  52  L. 
Ed.  171,  28  S.  Ct.  91. 


665 


1061-1065 


INJUNCTIONS. 


Vol.  VI. 


(3)  Construction  of  Decree  as  to  Scope  of  Restraint. — The  decree  must  be 
read  in  view  of  the  issues  made  and  the  relief  sought  and  granted.^^^  In  the 
footnote  will  be  found  a  decree  which  it  was  held  should  not  be  so  construed  as 
to  prevent  the  enforcement  of  legitimate  state  legislation  passed  in  pursuance  of 
the  police  power  and  not  conflicting  with  the  federal  constitution. ^^'^ 

X.    Bond. 

E.  Liability  on  Bond. — See  note  19. 

5.  When  Liability  Ceases.— Liability  on  an  undertaking  required  as  a  con- 
dition of  granting  the  restraining  order  authorized  by  Rev.  St.  U.  S.,  §  718  [U. 
S.  Comp.  St.  1901,  p.  580],  pending  decision  upon  a  motion  for  a  temporary  in- 
junction, ceases  when  a  new  and  permanent  injunction  is  granted  without  refer- 
ence to  the  restraining  order,  which  is  by  its  terms  to  be  in  force  "until  further 
order,  to  be  made,  if  at  all,  after  a  hearing."--^ 

F.  Procedure  on  Bond. — Power  of  Chancery  to  Assess  Damages  on 
Dissolution. — See  notes  23,  24. 


1061-91a.  Constitution  of  decree  as  to 
scope  of  restraint. — Haskell  v.  Kansas 
Natural  Gas  Co..  224  U.  S.  217,  56  L.  Ed. 
738,  32  S.  Ct.  442. 

1061-91b.  Not  to  interfere  with  state 
legislation. — A  decree  of  a  federal  circuit 
court  enjoining  the  enforcement  of  cer- 
tain state  legislation  which  undertook  to 
prohibit  the  transportation  of  natural  gas 
outside  the  state,  or  any  interference  with 
complainants'  pipe  lines  by  reason  of  any 
other  state  law  or  statute,  should  not  be 
construed  as  preventing  the  enforcement 
of  legitimate  state  legislation  passed  in 
the  exercise  of  the  police  power,  and  not 
conflicting  with  rights  protected  by  the 
federal  constitution,  where  such  a  broad 
construction  of  the  decree  would  disre- 
gard the  issues  made  by  the  pleadings, 
and  the  fact  that  such  decree  was  affirmed 
in  the  federal  supreme  court  on  the 
grounds  that  complainants  had  the  right, 
in  the  conduct  of  interstate  commerce,  to 
take  natural  gas  out  of  the  state,  that  a 
state  could  not  prohibit  the  transportation 
of  such  product  beyond  its  borders,  and 
that  the  main  purpose  and  effect  of  the 
legislation  in  question  were  to  prohibit 
the  exercise  of  lawful  rights  secured  by 
the  federal  constitution.  Haskell  v.  Kan- 
sas Natural  Gas  Co.,  224  U.  S.  217,  56  L. 
Ed.  738,  32  S.  Ct.  442. 

1064-19.  Who  protected  by. — An  un- 
dertaking accompanjnng  a  temporary  re- 
straining order  directed  against  "the  de- 
fendants and  each  of  them"  inures  to  the 
benefit  of  all  the  defendants  who  were  in- 
cluded in  that  order,  although  the  under- 
taking is  expressed  to  be  one  "to  make 
good  to  the  defendants  all  damages  by 
him  suffered,"  where  it  was  exacted  by 
the  court,  was  offered  by  the  complainant 
at  a  time  when  none  of  the  defendants 
knew  of  the  pendency  of  the  suit,  and 
shows  in  its  title  that  there  was  more  than 
one  defendant.     Decree  (1906)  28  App.  D. 


C.  271,  affirmed.     Hutchins  v.   Munn,   209 
U.  S.  246,  52  L.  Ed.  776,  28  S.  Ct.  504. 

The  owner  of  the  property  is  entitled  to 
the  benefit  of  an  undertaking  exacted  by 
the  court  as  a  condition  of  granting  an 
order  temporarily  restraining  the  continu- 
ance of  the  erection  of  an  addition  to  a 
dwelling,  where,  although  such  owner  was 
never  served  with  subpoena  or  notice, 
either  of  the  order  to  show  cause  or  of  the 
restraining  order,  such  order  was  ob- 
served until  dissolved,  and  inflicted  injury 
upon  her  rights.     Decree    (1906)   28   App. 

D.  C;   271,    affirmed.      Hutchins   v.   Munn, 
209  U.  S.  246,  52  L.  Ed.  776,  28  S.  Ct.  504. 

1064-22a.  When  liability  ceases. — Hough- 
ton c'.  Meyer,  208  U.  S.  149,  52  L.  Ed.  432, 
28  S.  Ct.  234. 

1065-23.  Procedure. — The  refusal  of  the 
court  of  original  jurisdiction  to  allow 
damages  for  the  period  during  which  the 
temporary  restraining  order,  granted  pur- 
suant to  Rev.  St.  U.  S.,  §  718  [U.  S. 
Comp.  St.  1901,  p.  580],  was  in  force, 
upon  the  undertaking  given  as  a  condi- 
tion of  granting  such  order,  can  not  be 
sustained  as  an  appropriate  exercise  of 
discretion,  where,  by  such  order,  the 
postmaster  general  was  restrained  from 
refusing  to  transmit  certain  publications 
at  second-class  rates,  as  theretofore,  and 
the  result  of  the  litigation  was  to  estab- 
lish not  only  the  right  of  the  govern- 
ment to  receive  additional  postage  pend- 
ing the  controversy,  but  also  the  fact  that 
the  publishers  had  received  a  very  con- 
siderable service  from  the  government  in 
carrj'ing  the  publications  through  the 
mails  at  a  rate  less  than  that  which  it  was 
entitled  to  charge.  Decree,  Cortelyou  v. 
Houghton  (1906),  27  App.  D.  C.  188, 
modified.  Houghton  v.  Meyer,  208  U.  S. 
149,   52   L.    Ed.   432,  28   S.    Ct.   234. 

1065-24.  Power  of  chancery  to  assess 
damages  on  dissolution — Discretion  of 
court. — "We  do  not  think  this  case  comes 


666 


Vol.  VI. 


INJUNCTIONS. 


1065-1067 


G.    Damages— 1.    Ix  General.— See  note  27. 

XII.  Violation  of  Injunction. 

A.  In  General — 1.  What  Constitutes. — See  ante,  Contempt,  p.  367.  See 
post,  "Power  to  Punish,"  XII,  A,  2. 

2.  Power  to  Punish. — See  note  29. 

Continuing  Injunction— Status  Pending  Appeal.— Plainly,  the  effect  of 
continuing  an  injunction  operates  to  continue  in  the  circuit  court  such  jurisdic- 
tion over  the  subject  matter  of  the  litigation  and  of  the  parties  as  to  enable  it  to 
preserve  the  status  quo  pending  the  appeal,  including  power  to  take  cognizance 
of  a  violation  of  its  injunction. -^^ 

C.  Defense,  Justification  or  Excuse— 1.  In  General. — The  good  faith  of 
the  defendant  in  performing  acts  violative  of  an  injunction  may  excuse  to  some 
extent,  though  it  can  not  acquit  him  of  the  technical  contempt."-'' 

D.  Procedure  and  Punishment — 1.  In  General. — Dismissal  of  Proceed- 
ing.— A  proceeding  in  equity  for  civil  contempt  consisting  in  doing  that  which 


within  the  class  outlined  in  Russell  v. 
Farley,  wherein  the  order  of  the  trial 
court  ought  not  to  be  disturbed  upon 
principles  of  equity  and  in  view  of  the 
superior  knowledge  of  that  court  of  the 
conduct  of  the  parties  in  the  course  of 
the  litigation."  Houghton  v.  Meyer,  208 
U.  S.  149,  52  L.   Ed.  432,  28  S.   Ct.  234, 

1065-27.  Damages — In  general. — The 
value  of  the  use  of  the  dwelling  for  the 
period  and  season  during  which  the  owner 
was  deprived  of  it  as  the  direct  result  of 
the  wrongful  t:se  of  an  order  temporarily 
restraining  the  continuance  of  the  erec- 
tion of  an  addition  is  the  proper  measure 
of  damages  recoverable  upon  the  under- 
taking to  make  good  the  resulting  injury, 
exacted  by  the  court  as  a  condition  of 
granting  the  order.  Hutchins  v.  Munn, 
209  U.  S.  246,  52  L.  Ed.  776,  28  S.  Ct.  504. 

1066-29.  Power  to  punish. — Merrimack, 
etc.,  Sav.  Bank  v.  Clay  Center,  219  U.  S. 
527.  55  L.  Ed.  320,  31  S.  Ct.  295. 

Power  of  appellate  court. — The  willful 
destruction  by  mimicipal  officers  of  the 
poles  and  wires  of  a  light  and  power  com- 
pany, pending  an  appeal  to  the  federal  su- 
preme cotirt  from  a  decree  of  a  circuit 
court,  dismissing  a  bill  praying,  among 
other  things,  an  injunction  to  prevent 
such  destruction  until  the  right  shall  be 
determined,  is  in  and  of  itself  a  contempt 
of  the  appellate  jurisdiction  of  the  su- 
preme court,  although  such  conduct  may 
also  be  a  violation  of  the  temporary  in- 
junction order  continued  by  the  court  be- 
low pending  the  appeal.  Merrimack,  etc., 
Sav.  Bank  v.  Clay  Center,  219  U.  S.  525, 
55  L.  Ed.  320,  31  S.  Ct.  295. 

1066-29a.  Continuing  injunction. — Mer- 
rimack, etc.,  Sav.  Bank  f.  Clay  Center,  219 
U.   S.  527,  55   L.   Ed.  320,  31   S.  Ct.  295. 

Continuing  a  temporary  injunction 
pending  an  appeal  to  the  federal  supreme 
court  from  a  decree  of  a  circuit  court,  dis- 
missing a  bill  asking  injunctive  _  relief, 
operates   to  continue  in  the  circuit  court 


such  jurisdiction  over  the  subject  matter 
of  the  litigation  and  the  parties  as  to  en- 
able it  to  preserve  the  status  quo  pend- 
ing the  appeal,  including  the  power  to 
take  cognizance  of  the  violation  of  the 
injunction.  Merrimack,  etc.,  Sav.  Bank  v. 
Clay  Center,  219  U.  S.  527,  55  L.  Ed.  320. 
31   S.  Ct.  295. 

"It  is  well  settled  that  the  force  and 
effect  of  a  decree  dismissing  a  bill  and 
discharging  an  injunction  is  neither  sus- 
pended nor  annulled  as  a  mere  conse- 
quence of  an  appeal  to  this  court,  even 
if  a  supersedeas  is  allowed  Slaughter- 
House  Cases,  10  Wall.  273,  297,  19  L.  Ed. 
915;  Hovey  v.  McDonald,  109  U.  S.  150. 
161,  27  L.  Ed.  888,  3  S.  Ct.  136;  Leonard  v. 
Ozark  Land  Co.,  115  U.  S.  465,  29  L.  Ed. 
44^,  6  S.  Ct.  127;  Knox  County  z:  Harsh- 
man,  132  U.  S.  14,  33  L.  Ed.  249,  10  S.  Ct. 
8.  That  the  circuit  court,  to  the  end  that 
the  status  quo  might  be  preserved  pend- 
ing such  appeal,  had  the  power  to  con- 
tinue an  injunction  in  force  by  virtue  of 
its  inherent  equity  power,  is  not  doubt- 
ful." Merrimack,  etc.,  Sav.  Bank  v.  Clav 
Center,  219  U.  S.  527,  55  L.  Ed.  320,  31 
S.    Ct.    295. 

1067-32a.  Good  faith.— The  honest  be- 
lief that  when  an  appeal  to  the  federal 
supreme  court  from  a  decree  of  a  circuit 
court,  dismissing  a  bill  asking  injunctive 
relief  against  the  removal  or  destruction 
by  municipal  officers  of  the  poles  and 
wires  of  a  light  and  power  company,  had 
been  dismissed  and  an  order  of  dismissal 
entered,  there  was  no  reason  why  such 
poles  and  wires  should  not  be  removed 
or  destroyed,  although  not  sufficient  to 
acquit  of  a  technical  contempt  of  court 
■uhere  no  mandate  had  issued  or  could 
have  issued  under  the  rules  of  the  su- 
preme court,  may  reduce  the  punishment 
to  the  payment  of  the  costs  of  the  con- 
tempt proceedings.  Merrimack,  etc.,  Sav. 
Bank  z\  Clay  Center,  219  U.  S.  527,  55  L. 
Ed.  320.  31  S.  Ct.  295.  See  ante,  CON- 
TEMPT, p.  367. 


667 


1067-1068 


INQUESTS  AND  INQUIRIES. 


Vol.  VL 


was  forbidden  by  an  injunction,  where  the  only  remedial  relief  possible  was  a 
fine  payable  to  the  complainant,  must  be  dismissed  without  prejudice  to  the 
power  and  right  of  the  court  granting  the  injunction  to  punish  for  contempt  by 
proper  proceedings,  where  there  has  been  a  complete  settlement  between  the  par- 
ties of  all  the  matters  involved  in  the  original  equity  cause-^^*^ 

Punitive  Sentence. — A  punitive  sentence  appropriate  only  to  a  proceeding 
at  law  for  criminal  contempt  where  the  contempt  consisted  in  doing  that  which 
had  been  prohibited  by  an  injunction  could  not  properly  be  imposed  in  contempt 
proceedings  which  were  instituted,  entitled,  tried,  and,  up  to  the  moment  of  sen- 
tence, treated,  as  a  part  of  the  original  cause  in  equity.^^^ 

3.  Punishment — Object  of. — See  note  38. 

4.  Decree. — Where  the  trial  judge  makes  no  general  finding  that  the  defend- 
ants are  guilty,  but  in  one  decree  adjudges  that  each  defendant  is  respectively 
guilty  of  all  of  the  independent  acts  set  out  in  the  petition,  it  should  be  reversed 
if  it  appears  that  the  defendants  are  sentenced  on  any  count  which,  in  law  or  in 
fact,  does  not  constitute  a  disobedience  of  the  injunction.^^'^ 

INNOCENCE.— See  note  la. 

INNOCENT  PURCHASER.— See  ante,  Bills,  Notes  and  Checks,  p.  204; 
Sales;    Vendor  and  Purchaser. 

INNS  AND  INNKEEPERS.— See  the  title  Inns  and  Innkeepers,  vol.  6,  p. 
1069,  and  references  there  given. 

IN  PARI  MATERIA.— See  post.  Statutes. 

INQUESTS  AND  INQUIRIES.— See  the  title  Inquests  and  Inquiries,  vol. 
6,  p.  1070,  and  references  there  given. 


1067-36a.     Dismissal    of     proceedings. — 

Gompers  v.  Bucks  Stove,  etc.,  Co.,  221  U. 
S.  418,  55  L.  Ed.  797,  31  S.  Ct.  492,  re- 
versing  33   App.    D.    C.   516. 

1067-36b.  Punitive  sentence. — Gompers 
V.  Bucks  Stove,  etc.,  Co.,  221  U.  S.  418, 
55  L.  Ed.  797,  31  S.  Ct.  492,  reversing,  33 
App.  D.  C.  516. 

1068-38.  Punishment — Object  of. — Mer- 
rimack, etc.,  Sav.  Bank  v.  Clay  Center, 
219  U.  S.  527,  55  L.  Ed.  320,  31  S.  Ct.  295. 

1068-40a.  Decree — Sentence — Review. — 
A  decree  adjudging  each  defendant  guilty 
of  the  independent  acts  set  out  in  separate 
paragraphs  of  a  petition  charging  them 
with  contempt  of  an  injunction  order,  and 
consolidating  sentence  without  indicating 
how  much  of  the  punishment  was  imposed 
for  the  disobedience  in  any  particular  in- 
stance, should  be  reversed  if  it  appears 
that  the  defendants  have  been  sentenced 
on  any  charge  which,  in  law  or  in  fact, 
does  not  constitute  a  disobedience  of  the 
injunction.  (1911),  Gompers  v.  Bucks 
Stove,  etc.,  Co.,  221  U.  S.  418,  55  L.  Ed. 
797,  31  S.  Ct.  492,  reversing  judgment 
(1909),   33  App.   D.   C.  516. 

1068-la.  Innocent  acts. — In  a  case  in- 
volving the  consideration  of  the  validity 
under  the  constitution  of  the  United 
States  of  the  imposition  of  double  dam- 
ages under  an  act  of  the  state  of  Min- 
nesota for  a  casual  and  involuntary  tres- 
pass made   by  cutting  or  assisting  to  cut 


timber  upon  the  lands  of  the  state,  the 
court  said:  "It  will  be  seen  that  the 
foundation  of  the  arguments  of  plaintiffs 
in  error  is  that  their  trespass  was  an 
innocent  act.  There  is  some  ambiguity  as 
to  what  is  meant  by  'innocence.'  They 
ciuote  Mr.  Justice  Case  in  Calder  v.  Bull, 
3  Dall.  386,  1  L.  Ed.  648.  It  was  there 
said  that  'a  law  that  punished  a  citizen  for 
an  innocent  action,  or,  in  other  words, 
for  an  act,  which  when  done,  was  in  vio- 
lation of  no  existing  law,'  could  not  'be 
considered  a  rightful  exercise  of  legisla- 
tive power.'  But  it  was  said:  'The  legis- 
lature may  enjoin,  permit,  forbid  and 
punish;  they  may  declare  new  crimes  and 
establish  rules  of  conduct  for  all  its  citi- 
zens in  future  cases.'  In  other  words, 
innocence  can  not  be  asserted  of  an  ac- 
tion which  violates  existing  law,  and 
ignorance  of  the  law  will  not  excuse.  The 
law  in  controversy  has  no  ex  post  facto- 
element  or  effect  in  it.  It  was  existing 
law  when  the  trespass  of  .plaintiffs  in  er- 
ror was  committed,  and  a  trespass  is  a 
legal  wrong,  not  an  innocent  act.  There 
is  no  element  of  deception  or  surprise  in 
the  law.  When  the  permit  was  issued 
plaintiffs  in  error  knew  the  limitations  of 
it,  and'  they  took  it  at  the  risk  and  conse- 
quences of  transgression."  Shevlin-Car- 
penter  Co.  v.  Minnesota,  218  U.  S.  57,  68, 
54  L.  Ed.  930,  30  S.  Ct.  663.  See  ante, 
CONSTITUTIONAL  LAW,  p.  264. 


G68 


Vol.  VI.  INSPECTION,  ETC.,  EXAMINATION.  1076-1077 


INSANITY. 
VI.  Criminal  Responsibility  of  Insane  Persons,  669. 

B.  Instructions,  669. 

C.  Evidence,  669. 

CROSS  REFERENCES. 

See  the  title  Insanity,  vol.  6,  p.  1072,  and  references  there  given. 

VI.    Criminal  Responsibility  of  Insane  Persons. 

B.  Instructions. — A  requested  instruction  as  to  the  insanity  of  the  accused  is 
properly  refused  where  there  is  only  the  merest  shadow  of  evidence  that  such  ac- 
cused was  not  of  sound  mind,  and  the  judge  has  instructed  the  jury  that  the  bur- 
den of  proof  is  on  the  government  to  prove  sanity  beyond  a  reasonable  doubt, 
and  told  the  jury  to  consider  all  the  evidence,  including  the  bearing  of  the  pris- 
oner and  the  manner  of  his  own  testimony,  and  stated  the  evidence  relied  upon 
by  him.2^'' 

C.  Evidence. — Burden  of  Proof. — See  note  25. 

INSCRIPTION. — As  to  inscribing  copyright  notice,  see  ante.  Copyright,  p. 
377. 

INSIDIOUS  MACHINATIONS.— The  meaning  of  the  words  "insidious  ma- 
chination" in  the  Philippine  Code  may  be  said  to  be  a  deceitful  scheme  or  plot 
with  an  evil  design.^ 

INSOLVENCY. — See  the  title  Insolvency,  vol.  7,  p.  1,  and  references  there 
given. 

INSPECTION  AND  PHYSICAL  EXAMINATION.— See  the  title  Inspec- 
tion AND  Physical  Examination,  vol.  7.  p.  14,  and  references  there  given. 

1076-24a.     Instructions. — United    States  by  deceit   shall  be  void.     It  is  then  pro- 

V.  Battle  (C.  C.  1907),  154  F.  .540,  affirmed.  vided  by  article  1269  that  "There  is  deceit 

Battle  V.   United   States,  209   U.   S.   36,   52  when  by  words  or  insidious  machinations 

L.   Ed.  670,  28   S.   Ct.  422.  on  the  part  of  one  of  the  contracting  par- 

1077-25.   Burden  of  proof — Presumption  ties  the  other  is  induced  to  execute  a  con- 

of  sanity. — Until  evidence  is  given  on  the  tract   which   without   them   he   would   not 

other  side,  the  burden  of  proof  is  satisfied  liave   made."     The  meaning-  of  the  words 

by    a   presumption    arising   from    the    fact  insidious  machinations  may  be  said  to  be 

that  most  men  are  sane.   Battle  v.  United  a    deceitful    scheme    or   plot   with    an    evil 

States,  209   U.   S.   36,  52  L.   Ed.   670,  28   S.  design,  or,  in  other  words,  with  a  fraudu- 

Ct.  422.  lent  purpose.     Strong  v.  Repide,  213  U.  S. 

1077-a.    Insidious  machinations.— In  art.  419,  430,  53  L.  Ed.  853,  29  S.  Ct.  521.     See 

1265    of   Code    of   Philippine    Islands   it   is  ante,  FRAUD  AND  DECEIT,  p.  597. 
T)rovidcd  that  consent  to  a  contract  given 

CG9 


18-19 


INSPECTION  LAWS. 


Vol.  VII. 


INSPECTION  LAWS. 

III.  Power  to  Enact,  670. 

V.  Prohibition  or  Obstruction  of,  or  Discriminations  against  Foreign 
or  Interstate  Commerce,  670. 

A.  In  General,  670. 

B.  Food  Inspection  Laws,  671. 

VII.  Inspection  Taxes  or  Charges,  671. 
B.  Validity  of  Tax  or  Charge,  671. 

IX.  Effect  of  Statute  Being  Invalid  in  Part,  672. 

X.  Construction  of  Peculiar  Provisions  of  Laws,  672. 

CROSS  REFERENCES. 

See  the  title  Inspection  Laws,  vol.  7,  p.  16,  and  references  there  given. 

In  addition,  see  ante,  Appeai,  and  Error,  p.  34;  Constitutional  Law,  p.  264; 
Courts,  p.  398;  post,  Interstate  and  Foreign  Commerce;  Police  Power; 
Revenue  Laws;  Ships  and  Shipping. 

III.    Power  to  Enact. 

See  note  16.  An  inspection  law  enacted  in  the  exercise  of  the  police  power 
will  be  upheld  by  the  courts,  although  the  legislature  may  have  acted  unwisely  in 
enacting  it.^^** 

V.    Prohibition  or  Obstruction  of,  or  Discriminations  against  Foreign  or 

Interstate  Commerce. 

A.    In  General. — Property  at  an  intermediate  point  between  the  place  of  ship- 


18-16.  Food  inspection  laws. — The  re- 
quirement that  the  name  and  percentage 
of  the  diluent  or  diluents  or  bases  shall 
be  stated  in  the  labels,  which  is  made  by 
Iowa  Code  (Supp.  1907,  §§  5077-a6— 5077- 
a24),  relating  to  the  sale  within  the  state 
of  concentrated  commercial  feeding  stuffs, 
is  a  proper  exercise  of  the  police  power 
of  the  state,  and  does  not,  as  applied  to 
sales  by  importers  in  the  original  pack- 
ages, amount  to  an  unconstitutional  regu- 
lation of  interstate  commerce.  Standard 
Stock  Food  Co.  V.  Wright,  225  U.  S.  540, 
56   L.   Ed.   1197,  32  S.   Ct.   784. 

The  prohibition  against  sales  by  im- 
porting purchasers  of  concentrated  com- 
mercial feeding  stufifs  in  the  original  pack- 
ages, which  is  made  by  Ind.  Acts  1907, 
chap.  206,  unless  there  be  compliance  with 
its  requirements  as  to  inspection  and  an- 
alysis, and  the  disclosure  of  the  ingredi- 
ents, including  the  minimum  percentage 
of  crude  fat  and  crude  protein,  and  the 
maximum  percentage  of  crude  fiber,  and 
its  incidental  provisions  for  the  filing  of 
a  certificate,  for  registration,  and  for 
labels  and  stamps,  is  a  proper  exercise  of 
the  police  power  of  the  state,  and  not 
an  unconstitutional  regulation  of  inter- 
state  commerce.   Savage  v.  Jones,  225  U. 


S.  501,  56  L.  Ed.  1182,  32  S.  Ct.  715. 
North    Carolina    oil    inspection    law. — 

Subjecting  all  kerosene  or  other  illuminat- 
ing oils  sold  or  offered  for  sale  in  the 
state  to  an  inspection  for  the  purpose  of 
determining  the  safety  and  value  of  such 
oils  for  illuminating  purposes,  as  is  done 
by  the  North  Carolina  Act  of  March  8, 
1909  (Acts  1909,  c.  554),  is  a  proper  exer- 
cise of  the  police  power,  and  does  not 
violate  the  commerce  clause  of  the  fed- 
eral constitution  (Const,  art.  1,  §  8).  Red 
"C"  Oil  Mfg.  Co.  V.  Board,  222  U.  S.  380, 
56  L.  Ed.  240,  32  S.  Ct.  152,  affirming, 
decree  (C.  C.  1909),  172  F.  695. 

19-18a.  Law  will  be  upheld  though  an 
unwise  enactment. — Waters-Pierce  Oil 
Co.  V.  Deselems,  212  U.  S.  159,  53  L.  Ed. 
453,  29   S.   Ct.  270. 

The  exclusion  from  the  territory  by 
Okla.  Laws  1899,  p.  186,  §  2,  of  illuminat- 
ing fluids  which  have  a  specific  gravity 
above  46  degrees  Baume,  is  within  the 
police  power  of  the  territory,  although 
some  oils  may  thus  be  excluded  which 
are  as  safe  for  use  as  those  which  comply 
with  the  statutory  standard.  Waters- 
Pierce  Oil  Co.  V.  Deselems,  212  U.  S.  159,. 
53  L.  Ed.  453,  29  S.  Ct.  270.  See  post,. 
POLICE  POWER. 


670 


Vol.  VII. 


INSPECTION  LAWS. 


21-23 


ment  and  the  ultimate  destination  may  cease  to  be  a  subject  of  interstate  com- 
merce and  therefore  subject  to  the  inspection  laws  of  the  state.^^^  A  person  is 
entitled  to  be  protected  against  a  state  inspection  law  which  violates  the  com- 
merce clause  of  the  federal  constitution,  whether  by  its  terms  or  the  manner  of 
its  enforcement,  and  the  decision  of  a  state  court  which  denies  such  protection 
gives  effect  to  the  law,  and  is  reviewable  by  the  supreme  court  of  the  United 
States.^'*' 

B.  Food  Inspection  Laws.— A  state  food  inspection  law,  so  far  as  it  affects 
interstate  commerce  even  indirectly  and  incidentally,  can  have  no  validity  if  re- 
pugnant to  a  federal  regulation.-* i** 

VII.    Inspection  Taxes  or  Charges. 
B.    Validity  of  Tax  or  Charge.— See  notes  50,  51. 


21-37a.  When  property  ceases  to  be  a 
subject  of  interstate  commerce. — General 
Oil  Co.  V.  Grain,  209  U.  S.  211,  52  L.  Ed. 
754,  28  S.  Gt.  475.  See,  also,  post,  INTER- 
STATE AND  FOREIGN  GOMMERGE. 

Oil  shipped  from  Pennsylvania  and 
Ohio,  and  destined  ultimately  for  points 
in  Arkansas,  Louisiana,  and  ]\Iississippi,  is 
not  property  in  interstate  commerce,  so 
as  to  be  exempt  from  state  inspection 
laws  while  it  is  held  at  a  distributing 
point  maintained  by  the  shipper  in  Ten- 
nessee, at  which  point  such  oil  is  unloaded 
from  tank  cars  into  various  tanks,  bar- 
rels, and  other  receptacles,  and  from 
which  it  is  forwarded  to  its  final  destina- 
tion. General  Oil  Go.  v.  Grain,  209  U.  S. 
211,   52   L.    Ed.   754,  28   S.   Gt.   475. 

21-37b.  Decision  denying  protection 
against  unconstitutional  law  reviewable  by 
supreme  court. — General  Oil  Co.  v.  Grain, 
209  U.  S.  211,  52  L.  Ed.  754,  28  S.  Gt.  475. 
See  ante,  APPEAL  AND  ERROR,  p.  34. 

A  decision  of  a  state  court  dismissing, 
on  the  ground  that  the  suit  was  one 
against  the  state,  and  therefore  not  within 
its  jurisdiction,  a  bill  which  seeks  to  en- 
join a  state  oil  inspector  from  enforcing 
a  state  inspection  law,  on  the  theory  that 
such  law,  if  applied  to  the  oils  in  con- 
troversy, violates  the  commerce  clause  of 
the  federal '  constitution,  gives  effect  to 
such  law,  and  is  reviewable  by  the  su- 
preme court  of  the  United  States.  General 
Oil  Go.  V.  Grain,  209  U.  S.  211,  52  L.  Ed. 
754.  28   S.   Gt.   475. 

22-41a.  State  law  invalid  if  repugnant  to 
federal  regulation. — Savage  v.  Tones,  225 
U.  S.  501,  56  L.   Ed.  1182,  32  S.  Gt.  715. 

State  law  not  repugnant  to  federal  stat- 
ute.— Gongress  did  not,  by  the  passage  of 
the  Food  and  Drusr  Act  of  June  30,  1906 
(34  Stat,  at  L.  768,  chap.  3915,  U.  S. 
Gomp.  Stat.  Supp.  1911,  p.  1354),  for  the 
prevention  of  adulteration  and  misbrand- 
ing of  food  and  drugs  when  the  subject 
of  interstate  commerce,  preclude  the 
enactment  of  Ind.  Acts  of  1907,  chap.  206, 
prohibiting  sales  of  concentrated  com- 
mercial feeding  stuffs  in  the  original  pack- 
ages unless  there  be  compliance  with  its 
requirements  as  to  inspection  and  analysis 


and  the  disclosure  of  the  ingredients,  in- 
cluding the  minimum  percentage  of  crude 
fat  and  crude  protein,  and  the  maximum 
percentage  of  crude  fiber,  and  with  its 
incidental  provisions  for  the  filing  of  a 
certificate,  for  registration,  and  for  labels 
and  stamps.  Savage  v.  Jones,  225  U.  S. 
501,  56  L.   Ed.  1182,  32  S.  Gt.  715. 

There  is  no  conflict  between  the  pro- 
visions of  the  Food  and  Drug  Act  of  June 
30,  1906  (34  Stat,  at  L.  768,  chap.  3915,  U. 
S.  Gomp.  Stat.  Supp.  1911,  p.  1354),  for 
the  prevention  of  the  adulteration  and 
misbranding  of  foods  and  drugs  when  the 
subject  of  interstate  commerce,  and  the 
requirment  of  Iowa  Gode  (Supp.  1907,  §§ 
5077-a6 — 5077-a24),  as  applied  to  sales  by 
importers  in  the  original  packages,  that 
there  shall  be  stated  in  the  labels  on  con- 
centrated commercial  feeding  stuffs  of- 
fered for  sale  in  the  state  the  name  and 
percentage  of  the  diluent  or  diluents  or 
bases.  Standard  Stock  Food  Go.  v.  Wright, 
225  U.  S.  540,  56  L.  Ed.  1197,  32  S.  Gt. 
784. 

23-50.  When  inspection  charge  is  valid. 
—Standard  Stock  Food  Go.  v.  Wright,  225 
U.  S.  540,  56  L.  Ed.  1197,  32  S.  Gt.  784. 

The  imposition  bj^  Iowa  Gode  (Supp. 
1907,  §§  5077-a6 — 5077-a24),  governing  the 
inspection  and  analysis  of  concentrated 
commercial  feeding  stuffs,  of  an  inspec- 
tion fee  of  10  cents  per  ton  on  such  prod- 
ucts when  sold  or  offered  for  sale  within 
the  state,  or  the  exaction,  in  lieu  thereof, 
in  the  case  of  "condimental,  patented, 
proprietar}^  or  trademark  stock  or  poultry 
foods,"  of  an  annual  license  fee  of  $100, 
does  not  render  the  statute  invalid  as  ap- 
plied to  sales  by  importers  in  the  original 
packages.  Standard  Stock  Food  Go.  v. 
Wright,  225  U.  S.  540,  56  L.  Ed.  1197,  32 
S.   Gt.  784. 

23-51.  Inspection  law  held  not  a  dis- 
guised revenue  measure. — An  inspection 
charge  of  80  cents  per  hundred  for  stamps 
to  be  affixed  to  packages  of  concentrated 
commercial  feeding  stuffs,  made  by  Ind. 
Laws  1907,  chap.  206,  is  not  on  its  face  so 
unreasonably  in  excess  of  the  cost  of 
analysis,  salaries  of  officials,  and  other 
necessary   expenses,    as    to    invalidate    the 


671 


25  INSTRUCTIONS.  Vol.  VII. 

IX.    Effect  of  Statute  Being  Invalid  in  Part. 

The  validity  of  certain  sections  of  a  statute  providing  for  the  inspection  and 
branding  of  illuminating  oil  is  not  affected  by  the  fact  that  another  section  of  the 
same  statute,  which  is  clearly  separable  from  the  rest  of  the  act,  is  unconstitu- 
tional.•^*5'' 

X.    Construction  of  Peculiar  Provisions  of  Laws. 

The  rules  applicable  to  the  construction  of  statutes  in  general  apply  to  the  in- 
terpretation of  the  peculiar  provisions  of  inspection  laws.*'^" 

INSPECTION  OF  SHIPS.— See  post,  Ships  and  Shipping. 


INSTRUCTIONS. 

IV.  Form  and  Requisites,  673. 
B.  Requisites,  673. 

10.  Must  Be  Founded  on  the  Pleadings  and  Evidence,  673. 

a.  Must  Be  Founded  on  the  Evidence,  673. 

(1)   In  General,  673. 

(3)   Competency  and  Sufficiency  of  the  Evidence,  673. 
bb.  Sufficiency  of  Evidence  Considered,  673. 

b.  Must  Be  Founded  on  Issues  Raised  by  the  Pleadings. 
15.  Invasion  of  Province  of  Jury,  673. 

f.  Assumption  of  Facts,  673. 
(1)   In  General,  673. 

VI.  Further  Instructions,  673. 
A.  In  General. 

CROSS  REFERENCES. 
See  the  title  Instructions,  vol.  7,  p.  26,  and  references  there  given. 
In  addition,  see  ante.  Brokers,  p.  212;  Carriers,  p.  216;  Contracts,  p.  373; 
Damages,  p.  455 ;  post.  Master  and  Servant. 

statute,  when  applied  to  sales  by  im-  products  of  petroleum  which  do  not  con- 
porters  in  the  original  packages,  as  a  dis-  form  to  the  statutory-  standard,  does  not 
guised  revenue  measure.  Savage  v.  Jones,  affect  the  validity  of  the  other  sections 
225  U.  S.  501,  56  L.  Ed.  1182,  32  S.  Ct.  of  that  statute  which  provide  for  inspec- 
715.  tion  and  branding.  Waters-Pierce  Oil  Co. 

A  charge  of  J/2  cent  per  gallon,  made  by  v.  Deselems,  212  U.  S.  159,  53  L.  Ed.  453, 

the  North  Carolina  Oil  Inspection  Act  of  29  S.  Ct.  270. 

March  8,  1909  (Acts  1909,  c.  554),  for  the  25-66b.  Construction  of  provision  some- 
avowed  purpose  of  defraying  the  expense  what  confusing  from  use  of  two  nega- 
connected  with  the  inspection,  can  not  be  tives. — The  plain  purpose  of  the  oil  in- 
said,  in  advance  of  the  experience  gained  spection  provisions  of  Okla.  Sess.  Laws 
from  the  actual  operation  of  the  act,  to  1899,  p.  186,  §  2,  is  to  permit  the  use  of 
be  so  seriously  in  excess  of  what  is  nee-  illuminating  fluids  which,  when  tested  by 
essary  as  to  justify  the  imputation  that  the  Baunie  hydrometer,  indicate  at  least 
the  real  purpose  of  the  statute  was  to  46  degrees  specific  gravity,  and  to  exclude 
raise  a  revenue,  in  violation  of  the  com-  all  oils  of  a  ■  lighter  character,  although 
merce  clause  of  the  federal  constitution.  the  language  of  the  statute,  that  all  illu- 
Red  "C"  Oil  Mfg.  Co.  v.  Board,  222  U.  S.  minating  fluids  shall  be  branded  "re- 
380,  56  L.  Ed.  240,  32  S.  Ct.  152,  affirming  jected"  which  "have  not  a  specific  gravity 
decree   (C.  C.  1909),  172  F.  695.  of    not    less    than    46    degrees    Baume,"    is 

25-66a.    Effect   of   statute   being  invalid  somewhat  confusing  from  the  use  of  the 

in  part. — Waters-Pierce   Oil  Co.  v.   Dese-  two  negatives,  and  from  the  fact  that  the 

lems,   212   U.   S.   159,   53   L.   Ed.  453,  29   S.  Baume     scale     is     to    be     read     inversely. 

Ct.  270.  See  post,  STATUTES.  Waters-Pierce    Oil    Co.    v.    Deselems,    212 

The  possible   unconstitutionality   of   the  U.  S.  159,  53  L.  Ed.  453,  29  S.  Ct.  270.  See 

provisions   of   Okla.    Laws   1899,   p.    186,   §  post,  STATUTES. 
4,    making    it    a    criminal    offense    to    sell 

072 


Vol.  VII. 


IXSURABLE  IXTEREST. 


38-61 


As  to  the  necessity  for  exceptions  and  objections  to  the  granting  and  refusing 
of  instructions  and  the  form  and  sufficiency  thereof,  see  arte.  Appeal  axd  Er- 
ror, p.  34.     As  to  directing  verdict,  see  post,  A'erdict. 

IV.    Form  and  Requisites. 

B.  Requisites — 10.  Must  Be  Founded  on  the  Pleadings  and  Evidence — 
a.  Must  Be  Founded  on  the  Evidence — ( 1)   In  General. — See  note  43. 

(3)  Competency  and  Sufficiency  of  the  Evidence — bb.  Sufficiency  of  Ez'idence 
Considered. — See  note  49. 

b.  Must  Be  Founded  on  Issues  Raised  by  the  Pleadings. — Instructions  appli- 
cable to  a  specific  defense  may  be  given  even  though  the  specific  defense  be  not 
pleaded,  if  facts  amounting  to  the  specific  defense  are  pleaded  and  found. ^'^^ 

15.  Invasion  of  Province  of  Jury — f.  Assumption  of  P-icts — (1;  In  Gen- 
eral.— See  note  6. 

VI.    Further  Instructions. 
A.    In  General. — See  note  40. 

INSURABLE  INTEREST.— See  post.  Insurance;    ^Iarine  Insurance. 


38-43.  Homicide  cases. — Requested  in- 
structions upon  the  law  of  justifiable  hom- 
icide and  involuntary  homicide  are  prop- 
erly refused  where,  according  to  the  testi- 
mony of  the  accused,  the  death  was'  due 
to  an  accident,  and,  according  to  all  the 
other  evidence,  was  caused  by  an  inten- 
tional and  unjustified  assault  with  a  deadly 
weapon.  Battle  v.  United  States,  209  U. 
S.  36.  52  L.  Ed.  670,  28  S.  Ct.  422.  See 
ante,  H0:MIC1DE,  p.  619. 

39-49.  Mere  suspicion  insufficient  to 
support  an  instruction. — A  requested  in- 
struction as  to  the  insanity  of  the  ac- 
cused is  properly  refused  where  there  is 
only  the  merest  shadow  of  evidence  that 
such  accused  was  not  of  sound  mind,  and 
the  judge  has  instructed  the  jury  that  the 
burden  of  proof  is  on  the  government  to 
prove  sanity  beyond  a  reasonable  doubt, 
and  told  the  jury  to  consider  all  the  evi- 
dence, including  the  bearing  of  the  pris- 
oner and  the  manner  of  his  own  testi- 
mon}',  and  stated  the  evidence  relied  upon 
by  him.  Battle  r.  United  States.  209  U.  S. 
36.    52    L.    Ed.    670,    28    S.    Ct.    422. 

41-60a.  When  specific  defense  not 
pleaded. — That  undue  influence  was  not 
expressly  pleaded  in  defense  of  a  contract 
does  not  preclude  instructions  defining  it, 
if  facts  are  pleaded  and  found  which 
amount  to  it.  Judgment,  Snyder  v.  Strib- 
ling  ('1907),  89  P.  222,  18  Okl.  168,  af- 
firmed. Snyder  z\  Rosenbaum,  215  U.  S. 
261,  54  L.  Ed.  186.  30  S.  Ct.  73.  See  post, 
UNDUE  IXFLUEXCE. 

54-6.  Assumption  of  facts. — The  refusal 
to  give  a  requested  instruction  upon  the 
necessity  of  corroborating  the  testimony 
of  an  accomplice  is  not  error,  where  the 
request  assumes  that  the  witness  was   an 

12    U    S    Enc— 43  673 


accomplice,  a  conclusion  which  was  con- 
troverted, and  against  which  the  jury 
might  have  found,  in  the  light  of  the  testi- 
mony. Holmgren  v.  United  States,  217  U. 
S.  509.  54  L.  Ed.  861,  30  S.  Ct.  588,  affirm- 
ing judgment  (1907),  156  F.  439,  84  C.  C. 
A.  301. 

Instructions  should  not  be  given  assum- 
ing that  a  contract  is  in  force,  if  its  valid- 
ity has  been  denied  and  its  execution  is 
claimed  to  have  been  abandoned.  Judg- 
ment, Snyder  z:  Stribling  (1907),  89  P. 
222,  18  Okl.  168,  affirmed.  Snyder  :■.  Rosen- 
baum, 215  U.  S.  261,  54  L.  Ed.  186,  30  S. 
Ct.  73. 

61-40.  Court  not  bound  to  repeat  or  give 
further  instructions. — Additional  instruc- 
tions need  not  be  given  when  already 
covered  by  the  charge  as  given.  William- 
son V.  United  States,  207  U.  S.  425.  52  L. 
Ed.   278,  28   S.   Ct.   163. 

The  refusal  of  the  trial  to  give  re- 
quested instructions  as  to  the  presumption 
of  innocence  and  as  to  reasonable  doubt 
is  not  error,  where  the  jury  were  other- 
wise fully  and  correctlj'  instructed  on 
these  matters.  (1910),  Holt  z-.  United 
States,  218  U.  S.  245,  54  L.  Ed.  1021,  31 
S.  Ct.  2,  affirming  judgment.  United  States 
z:    Holt    (C.    C.   1909),   168   F.   141. 

A  requested  instruction  is  properly  re- 
fused where  the  instructions  given  and 
not  objected  to  embodied  everything  con- 
tained in  the  mstruction  refused  that  was 
adapted  to  the  testimony  and  to  the  con- 
sideration which  the  jury  might  give  to 
its  various  phases.  Judgment  (1906).  28 
App.  D.  C.  498,  affirmed.  Pickford  v.  Tal- 
bott.  211  U.  S.  199.  53  L.  Ed.  146.  29  S. 
Ct.    75. 


IXSURAXCB.  Vol.  VIL 


INSURANCE. 

II.  Insurance  Companies,  675. 

C.  Regulation,  Control  and  Taxation,  675. 

1.  In  General,  675. 

3.  Foreign   Insurance   Companies,   675. 

a.  \\'hat  Constitvites  Doing  Business  in  a   State,  675. 

c.  Right  to  Exclude  from  or  Impose  Conditions  upon  Transac- 

tion of  Business,  676. 

(2)  Right  to  Impose  Conditions  and  Make  Regulations,  676. 
(f)   Conditions  as  to  Service  of  Process  and  Entering 

Appearance,  676. 

e.  Withdrawal  from    State  and    Revocation  of  Power  of  Agent, 

676. 

D.  Insolvent  Companies,  677. 

1.  Rights  of   Policy  Holders,  677. 

E.  Dissolution  and  Winding  Up  at  Suit  of  Policy  Holder,  677. 

1.  Grounds,  677. 

2.  Right  to  Receivership,  677. 

3.  Bill — Allegation   of   Insolvency,  677. 

IV.  The  Contract  of  Insurance,  677. 

C.  Interpretation  and  Construction,  677. 

1.  Rules  and  Principles  Governing  Exposition,  677. 

b.  Applicability  of    Rules  for    Construction  of    Written    Instru- 

ments, 677. 

2.  What  Law  Governs,  678. 

a.  In  General,  678. 

D.  Persons  \Mio  May  Procure  Insurance,  678. 

2.  Insurable  Interest,  678. 
a.  Necessitv,  678. 

(1)  General  Rule,  678. 

(3)  In  Life,  678. 

(a>4)   In  General,  678. 

d.  Extinguishment   and   Cessation   of   Interest,   678. 

(2)  In  Life,  678. 

E.  Premium,  678. 

5.  Forfeiture  upon  Nonpayment  ad  Diem,  678. 

f.  \\'aiver  of  Forfeiture,  678. 

(1)   Nonpayment   of   Premium,   678. 
(a)   In  General,  678. 
7.  Tariff  Associations,  678. 
E^.  Loans  on  Policy,  679. 

G.  Risks  and  Causes  of  Loss,  680. 
V/2.  Effect  of  Public  Policy,  680. 

4.  Life  Insurance,  680. 

a.  Intentional  Self-Destruction,  680. 
(1)   Suicide.  680. 

e.  Legal  Execution,  680. 

I.  Modification   and   Alteration   of   Contract,   681. 
K.  Forfeiture   and  Avoidance,  681. 
2.  Forfeitures,  681. 

c.  Breach  of  Continuing  and  Promissory  Warranties  and  Condi- 

tions, 681. 

674 


Vol.  MI.  INSURANCE.  77-79 

(1)  Fire  Insurance,  681. 

(b)   Precautions   against   Fire,   681. 

bb.  Care,   Occupancy  and   Use   of    Premises,  681. 
(ddj     Keeping     Explosives    and    Inflammable 
Substances,  681. 
f.  Waiver  and  Estoppel,  681. 

(2)  Estoppel  by  Conduct,  681. 

(e)   Necessity    for   Writing,   681. 
(h)   Waiver  by  Agents,  681. 

aa.  Authority   of   Agent,   681. 

(bb)    Condition      Restricting      Authority      of 
Agent,  681. 
K>^.  Right  of  Policy  Holder  to  Share  in  Surplus  and  Profits,  682, 
L.  Assignment  and  Transfer,  682. 

3.  Requisites,  682. 

d.  Insurable    Interest   of   Assignee,   682. 
M.  Extent  of  Loss  and  Liability  Therefor,  683. 

4.  Double  Insurance,  683. 
L'.  Reinsurance,  683. 

3.  Construction,  683. 

5.  Pavment  of  Loss  as  Condition  Precedent  to  Enforcement,  683. 
V.  Remed'ies,  684. 

9.  Process  and  Appearance,  684. 

a.  Foreign   Company,   684. 
11.  Pleading,  685. 

a.  Declaration.  Bill  or  Complaint,  685. 

CROSS  REFERENCES. 

See  the  title  Ixsur^vnce,  vol.  7,  p.  66,  and  references  there  given. 

In  addition,  see  ante,  Constitutioxal  Lav^,  p.  264;  Due  Process  of  Law,  p. 
475;  Foreign  Corporations,  p.  584;  Police  Power;  Taxation. 

As  to  federal  courts  following  decisions  of  state  court  as  to  construction  of 
charter,  see  ante.  Courts,  p.  398. 

IL    Insurance  Companies. 

C.  Regulation,  Control  and  Taxation — 1.  Ix  General. — Insurance  com- 
Danies,  within  the  jurisdiction  of  a  state,  are  subject  to  such  regulations,  in  re- 
spect of  their  relative  rights  and  duties,  as  the  state  may,  in  the  exercise  of  its  po- 
lice power,  and  in  harmony  with  its  own  and  the  federal  constitution,  prescribe 
for  the  public  convenience  and  the  general  good.^^ 

3.  Foreign  Insurance  Companies — a.  What  Constitutes  Doing  Business  in  a 
State. — See  note  13.    And  see,  also,  post,  "Foreign  Company,"  IV,  V,  9,  a. 

77-8a.  Regulation  of  insurance  com-  ment  of  a  policy,  to  be  delivered  upon 
panics. — German  Alliance  Ins.  Co.  z'.  receipt  of  certain  unpaid  assessments,  and 
Hale,  219  U.  S.  307,  55  L.  Ed.  229,  31  S.  two  adjustments  within  the  state  of 
Ct.  246,  citing  Lake  Shore,  etc.,  R.  Co.  v.  claims  which  have  accrued,  do  not  con- 
Ohio,  173  U.  S.  285.  297,  43  L.  Ed.  702,  19  stitute  doing  business  within  the  state 
S.  Ct.  465;  Jacobson  z\  Massachusetts,  197  after  the  company's  asserted  withdrawal 
U.  S.  11,  31,  49  L.  Ed.  643,  25  S.  Ct.  358,  therefrom  in  good  faith,  so  as  to  preclude 
and  House  r.  Mayes,  219  U.  S.  270,  55  L.  it  from  revoking  its  designation  of  the 
Ed.  213,  31  S.  Ct.  234.  state  insurance  commissioner  as  its  agent 

79-13.  What  constitutes  "doing  business."  to      receive     service    of    process.      (1910), 

— The  receipt  by  a  foreign  insurance  com-  Hunter  v.   Mutual  Reserve   Life   Ins.  Co., 

pany  at  its  home  office  of  premiums  upon  218  U.  S.  573,  54  L.  Ed.  1155,  31  S.  Ct.  127, 

policies   theretofore   issued,   together  with  affirming  judgment   (1906),  76  N.   E.  1072, 

four  isolated  acts  extending  over  a  period  184   N.   Y.   136,   6   A.    &   E.   Ann.   Cas.   291, 

of  three  years,  consisting  in  rewriting  an  distinguishing  Connecticut  Mut.  Life  Ins. 

existing  policy,   sending  a  check   in  pay-  Co.  v.   Spratlej',  173  U.  S.  602,  43  L.   Ed. 

675 


85 


INSURANCE. 


Vol.  VII. 


c.  Right  to  Exclude  from  or  Impose  Conditions  upon  I^ransaction  of  Business 
—  (2)  Right  to  Impose  Conditions  and  Make  Regulations — (f)  Conditions  as  to 
Service  of  Process  and  Entering  Appearance. — See  post,  "Foreign  Company," 
IV,  V,  9,  a.  Revocation  of  power  of  agent  upon  withdrawal  from  state,  see 
ante,  "What  Constitutes  Doing  Business  in  a  State,"  II,  C,  3,  a;  post,  "Withdrawal 
from  State  and  Revocation  of  Power  of  Agent,"  II,  C,  3,  e. 

e.  IVithdrazual  from  State  and  Revocation  of  Power  of  Agent. — A  foreign  in- 
surance company  upon  withdrawing  from  a  state  in  good  faith  may  revoke  a 
power   which  it  had   given  to  the   insurance   commissioner  to    accept    service  for 


569,  19  S.  Ct.  308;  Mutual,  etc..  Life  Ass'n 
V.  Phelps,  190  U.  S.  147,  47  L.  Ed.  987, 
23  S.  Ct.  707;  Mutual,  etc..  Life  Ins.  Co. 
z:  Birch,  200  U.  S.  612,  50  L.  Ed.  620,  26 
S.  Ct.  752,  and  Commercial  Mut.  Acci.  Co. 
V.  Davis.  213  U.  S.  245,  53  L.  Ed.  782,  29 
S.   Ct.  445. 

The  acts  which  were  adduced  in  the  pre- 
ceding paragraph  were  not  instances  of 
new  business.  They  related  to  old  trans- 
actions, and  were  intended  only  to  ful- 
fill their  obligations.  This  was  the  plain 
duty  of  defendant,  a  duty  which  it  could 
not  evade,  nor  could  the  state  even  pre- 
vent it.  Bedford  v.  Eastern  Bldg.,  etc., 
Ass'n.  181  U.  S.  227,  45  L.  Ed.  834,  21  S. 
Ct.  597.  Between  doing  business  for  such 
purposes  and  doing  business  generally, 
there  is  quite  a  difference. 

In  Connecticut  Mut.  Life  Ins.  Co.  v. 
Spratley.  172  U.  S.  602,  43  L.  Ed.  569,  19 
S.  Ct.  308,  the  life  insurance  policy,  which 
was  the  subject  of  the  suit,  was  is- 
sued by  the  insurance  company  when  it 
was  concededly  present  and  doing  busi- 
ness in  the  state  of  Tennessee.  The  serv- 
ice was  upon  an  agent  by  the  name  of 
Chaffee,  sent  to  investigate  into  the  cir- 
cumstances of  the  death  of  Spratley  and 
the  claims  of  his  widow.  These  facts 
distinguish  the  case  from  the  one  at  bar. 
But  certain  language  of  the  court  is 
quoted  to  establish,  not  only  was  the  in- 
surance company  so  doing  business  in 
the  state  as  to  justify  service  of  process 
upon  the  agent  appointed  by  the  com- 
pany, but  doing  business  generally.  Hun- 
ter z'.  Mutual  Reserve  Life  Ins.  Co.,  218 
U.  S.  573,  54  L.   Ed.  1155,  31   S.   Ct.  127. 

"Mutual,  etc..  Life  Ass'n  v.  Phelps,  190 
U.  S.  147.  47  L.  Ed.  987,  23  S.  Ct.  707,  is 
distinguished  from  the  case  at  bar  by  the 
same  features  that  distinguish  the  Sprat- 
ley Case  from  it.  Tlie  suit  was  brought 
by  a  citizen  of  the  state  of  Kentucky  upon 
a  policy  issued  when  the  association  was 
doing  a  general  business  in  the  state 
through  regular  agents,  under  a  license 
from  the  state.  The  commissioner  subse- 
quently canceled  its  license,  and  it  with- 
drew its  agents  from  the  state.  The  serv- 
ice of  process  in  the  action  was  never- 
theless made  upon  the  comrnissioner  and 
sustained.  It  was  stipulated  by  the  par- 
ties   that    outstanding   policies   were    con- 


tinued in  force  after  the  action  of  the  com- 
missioner, on  which  the  association  had 
collected  and  was  collecting  dues,  pre- 
miums, and  assessments,  and  this  court 
b.eld,  on  the  authority  of  Connecticut,  etc., 
Ins.  Co.  I'.  Spratley,  172  U.  S.  602,  43  L. 
Ed.  569,  that  the  association  was  doing 
business  in  the  state."  Hunter  z>.  Mutual 
'^eserve  Life  Ins.  Co.,  218  U.  S.  573,  54 
L.  Ed.  1155,  31  S.  Ct.  127. 

"Mutual,  etc..  Life  Ins.  Co.  v.  Birch, 
200  U.  S.  612,  50  L.  Ed.  620,  26  S.  Ct.  752, 
was  a  like  case.  Certain  judgments  which 
were  sued  on  in  New  York  were  obtained 
in  actions  upon  policies  issued  when  the 
insurance  company  was  doing  its  regular 
1-usiness  in  the  state  of  North  Carolina, 
and  antedated  its  resolution  to  withdraw 
from  the  state.  The  case  was  rested  in 
the  court  of  appeals  of  .  New  York  on 
Woodward  z'.  Mutual  Reserve  L.  Ins.  Co., 
178  N.  Y.  490,  102  Am.  St.  Rep.  519,  71 
\.  E.  10.  It  was  said  in  that  case  that 
tlie  stipulation  of  the  company  in  regard 
lo  service  of  process  became  an  obliga- 
tion of  the  company  precisely  as  though 
It  'had  been  incorporated  in  the  policies; 
and  thereafter,  whether  the  coinpany  con- 
tinued to  do  business  in  the  state  or  not, 
policy  holders  could  commence  action  by 
service  upon  the  secretary  of  state,'  sub- 
sequently changed  to  the  insurance  com- 
missioner. Woodward  v.  Mutual  Reserve 
L.  Ins.  Co.,  was  cited  by  this  court  in  its 
opinion  sustaining  the  judgment  in  the 
Birch  Case."  Hunter  v.  Mutual  Re- 
serve Life  Ins.  Co.,  218  U.  S.  573,  54  L. 
Ed.   1155,  31   S.   Ct.  127. 

"Commercial  Mut.  Acci.  Co.  v.  Davis, 
213  U.  S.  245,  53  L.  Ed.  782,  29  S.  Ct.  445, 
has  the  same  characteristics  as  the  cases 
which  we  have  reviewed,  and  needs  no 
other  comment  than  that  it  repeated  the 
doctrine  of  the  other  cases."  Hunter  z-. 
:Mutual  Reserve  Life  Ins.  Co..  218  U.  S. 
573.  54  L.  Ed.  1155.  31  S.  Ct.  127. 

85-33a.  Withdrawal  from  state  and 
revocation  of  power  of  agent. — Hunter  v. 
Mutual  Reserve  Life  Ins.  Co.,  218  U.  S. 
573.   54  L.   Ed.   1155,   31   S.   Ct.   127. 

A  foreign  insurance  company,  upon 
withdrawing  from  the  state  in  good  faith, 
to  escape  the  compulsion  of  Act  N.  C. 
I'eb.  10,  1899  (Laws  1899,  c.  62),  requiring 
it  to  become  a  domestic  corporation  if  it 


676 


Vol.  VII.  INSURANCE.  86-101 

D.  Insolvent  Companies — 1.  Rights  of  Policy  Holders. — See  post,  "Dis- 
solution and  Rendering  Up  at  Suit  of  Policy  Holder,"  II,  E. 

E.  Dissolution  and  Winding  Up  at  Suit  of  Policy  Holder — 1.  Grounds, 
— The  fact  that  the  stockholders  in  a  mutual  life  company  claim  in  a  pending 
suit  to  own  the  entire  surplus,  which  claim  the  company  fails  to  deny,  does  not 
authorize  a  suit  in  equity  by  a  policy  holder  entitled  to  participate  equitably  in 
the  distribution  of  the  surplus  according  to  methods  and  principles  adopted  by 
the  company  for  an  accounting  and  the  appointment  of  a  receiver  to  wind  up  its 
affairs,  based  upon  mismanagement  and  misappropriation  by  its  officers  and  di- 
rectors.^^^ 

2.  Right  to  Receivership. — The  appointment  of  a  receiver  and  a  real,  though 
not  formal,  dissolution  of  a  mutual  life  company,  and  the  distribution  of  its  as- 
sets, can  not  be  had  at  the  instance  of  a  policy  holder  entitled  to  participate  equita- 
bly in  the  distribution  of  the  surplus,  because  the  surplus  fund  is  not  as  large  as 
it  should  have  been,  owing  to  the  misconduct  of  the  company's  officers^  and  be- 
cause the  company  has  not  distributed  as  much  of  the  surplus  as  complainant 
deems  himself  entitled  to,  by  reason  of  such  misconduct,  where  no  trust  relation 
exists  between  the  policy  holder  and  the  company,  and  no  claim  is  made  that  the 
apportionment  made  is  inequitable  as  between  the  policy  holders,  or  is  based  upon 
erroneous  principles.^^''  A  court  of  equity  is  bound  to  take  all  the  facts  into  con- 
sideration, and  to  weigh  the  relative  advantages  and  disadvantages  of  granting 
an  accounting  and  appointing  a  receiver  to  wind  up  the  business  of  a  mutual  life 
insurance  company  at  the  suit  of  a  policy  holder  because  of  the  wrongdoing  of 
its  former  officers  and  directors,  assuming  that  jurisdiction  exists  to  grant  such 
relief-ss-^ 

3.  Bill — Allegation  of  Insolvency. — No  case  for  an  accounting  or  for  the 
appointment  of  a  receiver  to  wind  up  a  mutual  life  company  is  made  by  allega- 
tions of  insolvency  contained  in  a  bill  filed  by  a  policy  holder,  which  are  based- 
upon  the  idea  that  the  company  itself  is  liable  to  policy  holders  for  frauds  or 
wrongdoing  committed  by  the  officers  or  directors  against  the  company,  and  in 
their  personal  interests.-^'^*^ 

IV.    The  Contract  of  Insurance. 

C.  Interpretation  and  Construction — 1.  Rules  and  Principles  Govern- 
ing Exposition — b.  Applicability  of  Rules  for  Construction  of  Written  Insirny- 
ments. — The  rule  of  ejusdem  generis  is  a  rule  of  interpretation;  applicable 
to  insurance  policies  which  the  court  granted,  arguendo,  should  be  applied  more 
liberally  to  contracts  of  insurance  than  to  contracts  of  other  kinds. ^^^ 

desires  to  continue  to  do  business  in  the  Mutual   Reserve   Life   Ins.   Co.,   218   U.   S. 

state,  may  revoke  its  appointment  of  the  573,  54  L.  Ed.  1155,  31  S.  Ct.  127. 

state  insurance  commissioner  as  its  agent  86-39a.    Grounds  for  torfeiture  and  dis- 

to    receive    service    of  process,    so    far    as  solution. — Equitable    Life    Assur.    Soc.    v. 

claims  of  citizens  of  other  states  are  con-  Brown,  213  U.   S.  25,  53  L.  Ed.  682,  29  S. 

cerned,    vi^hich    are    assigned     after      such  Ct.  404,  reversing  151  Fed.  1,  81  C.  C.  A.  1. 

withdrawal  to  a  resident  of  the  state  for  86-39b.     Right     to     receivership. — Equi- 

collection,   although   Laws    N.    C.   1899,   c.  table   Life    Assur.   Soc.  v.   Brown,   213   U. 

54,    continues    the    authority    of    the    com-  g.  25,  53  L.  Ed.  682,  29  S.  Ct.  404. 

missioner  iri  force  and  irrevocable  so  long  ^^^^^       Equitable    Life    Assur.    Soc.    v. 

as   any  liability  of  the   company   shall   re-  ^^            313  u.   S.  25,  53  L.  Ed.  682,  29   S. 

main  outstanding  in  the  state.     Hunter  v.  ^        „, 

Mutual   Reserve   Life    Ins.   Co.,   218   U.   S.  „^  „„j        ^„         .             r      •       1 

573,  54  L.  Ed.  1155,  31  S.  Ct.  127,  affirming  ^  86-39d       Allegation      of      insolvency .- 

judgment  (1906),  76  N.  E.  1072,  184  N.  Y.  Equitable   Life  ^^'^"/g/^g^-s^  ^f  ^oT 

136,  6  A.  &  E.  Ann.  Cas.  291.  ^-  ^-  ->^'  ^^  L.  iid.  682,  29  b.  ^..t.  4U4.  ^ 

"It   could   not   revoke   it  as   to   any  'in-  101-16a.     Rule     of     ejusdem     generis.— 

terest   or   right   founded   or   created   upon  Penman   v.    St.    Paul    Fire,    etc.,    Ins.    Co., 

faith  thereof,'  and  which  'required  its  per-  216  U.  S.  311,  54  L.  Ed.  493,  30  S.  Ct.  312. 

petuation    and   continuance.'  "'      Hunter   v.  See  post,  STATUTES. 

677 


105-131 


IXSURAXCE. 


Vol.  VII. 


2.  What  Law  Governs — a.  In  General. — See  note  34. 

D.  Persons  Who  May  Procure  Insurance — 2.  Insurable  Interest — 
a.  Necessity — (1)  General  Rule. — See  note  40. 

(3)  In  Life — (a^)  In  General. — The   meaning  of  an    insurable  interest  is  an 
interest  in  having  the  life  continue,  and  so  one  that  is  opposed  to  crime.' "'^ 
d.  Extinguishment  and  Cessation  of  Interest — (2)  /;/  Life. — See  note  96. 

E.  Premium — 5.  Forfeiture  upon  Nonpayment  ad  Diem — f.  Waiver  of 
Forfeiture — (1)  Nonpayment  of  Premium — (a)  In  General. — See  note  37. 

7,  Tariff  Associations. — In  order  to  prevent  monopoly  and  encourage  com- 
petition in  insurance  rates  and  to  meet  the  evils  resulting  from  the  fixing  of  rates 
by  tariff  associations  or  combinations  of  insurance  companies,  the  state  is  compe- 
tent to  adopt  appropriate  regulations  that  will  tend  to  substitute  competition  in 
place  of  combination  or  monopoly.^^^     Regulations  having  a  real,  substantial  re- 


105-34.  .What  law  governs. — A  policy  of 
life  insurance,  though  executed  at  the 
company's  office  in  Wisconsin,  is  a  Vir- 
ginia contract,  where  the  application  was 
made  by  a  resident  of  the  latter  state  at 
a  place  in  that  state,  and  the  policy  was 
delivered  to  him  there,  when  he  gave  his 
note  for  the  premium,  which  was  payable 
at  that  place,  and  subsequently  paid  there, 
the  policy  providing  that  it  should  not 
take  effect  until  the  first  premium  should 
lie  actually  paid.  Northwestern  Mut.  Life 
Ins.  Co.  V.  McCue,  223  U.  S.  234,  56  L. 
Ed.  419,  32  S.   Ct.  220. 

"In  Equitable  Life  Assur.  Soc.  v.  Clem- 
ents, 140  U.  S.  226,  35  L.  Ed.  497,  11  S. 
Ct.  822,  the  question  arose  whether  the 
contract  of  insurance  sued  on  was  made 
in  New  York  or  Missouri.  The  assured 
was  a  resident  of  Missouri,  and  the  ap- 
plication for  the  policy  was  signed  in  Mis- 
souri. The  policy,  executed  at  the  office 
of  the  company,  provided  that  the  con- 
tract between  the  parties  was  completely 
set  forth  in  the  policy  and  the  application 
therefor,  taken  together.  The  application 
declared  that  the  contract  should  not 
take  effect  until  the  first  premium  should 
have  been  actually  paid  during  the  life 
of  the  person  proposed  for  assurance. 
Two  annual  premiums  were  paid  in  Mis- 
souri, and  the  policy,  at  the  request  of  the 
assured,  was  transmitted  to  him  in  Mis- 
souri, and  there  delivered  to  him.  The 
court  said:  "Upon  this  record  the  con- 
clusion is  inevital)le  that  the  policy  never 
became  a  completed  contract,  binding 
either  party  to  it,  until  the  delivery  of  the 
policy  and  the  payment  of  the  first  pre- 
mium in  Missouri;  and  consequently  that 
the  policy  is  a  Missouri  contract,  and  gov- 
erned by  the  laws  of  Missouri.'  "  North- 
western i\Iut.  Life  Ins.  Co.  z>.  McCue, 
223  U.  S.  234,  56  L.  Ed.  419,  32  S.  Ct.  220. 

"In  Mutual  Life  Ins.  Co.  v.  Cohen,  179 
U.  S.  262,  45  L.  Ed.  181,  21  S.  Ct.  106,  the 
insurance  policy  contained  a  stiptilation 
that  it  should  not  be  binding  until  the 
first  premium  had  been  paid  and  the 
policy  delivered.  The  premium  was  paid 
and  the  policy  delivered  in  Montana.     It 


was  held  that  'under  these  circumstances, 
under  the  general  rule,  the  contract  was 
a  ^Montana  contract,  and  governed  by  the 
law's  of  that  state.'  Citing  Equitable  Life 
Assur.  Soc.  V.  Clements,  140  U.  S.  226, 
35  L.  Ed  497,  11  S.  Ct.  822.  The  same 
conditions  existed  in  Mutual  Life  Ins.  Co. 
7\  Hill,  193  U.  S.  551,  48  L.  Ed.  788,  24 
S.  Ct.  538,  and  it  was  decided,  the  two 
cases  above  mentioned  being  cited,  that 
the  policy  of  insurance  involved  was  a 
Washington  contract,  not  a  New  York 
contract."  Northwestern  Mut.  Life  Ins. 
Co.  V.  McCue,  223  U.  S.  234,  56  L.  Ed.  419, 
32   S.    Ct.   220. 

106-40.  "A  contract  of  insurance  upon 
a  life  in  which  the  insured  has.no  interest 
is  a  pure  wager  that  gives  the  insured  a 
sinister  counter  interest  in  having  the 
life  come  to  an  end.  And  although  that 
counter  interest  always  exists,  as  early 
was  emphasized  for  England  in  the  famous 
case  of  Wainewright  (Janus  Weather- 
cock), the  chance  that  in  some  cases  it 
may  prove  a  sufficient  motive  for  crime 
is  greatly  enhanced  if  the  whole  world 
of  the  unscrupulous  are  free  to  bet  on 
what  life  they  chose.  *  *  *  The  existence 
of  such  an  interest  makes  a  roughly 
selected  class  of  persons  who,  by  their 
general  relations  with  the  person  whose 
life  is  insured,  are  less  likely  than  crimi- 
nals at  large  to  attempt  to  compass  his 
death."  Grigsby  v.  Russell,  222  U.  S. 
149.    56   L.    Ed.    133,   32    S.    Ct.    58. 

115-76a.  Life.— Grigsby  v.  Russell,  222 
U.  S.  149,  56  L.  Ed.  133,  32  S.  Ct.  58. 

118-96.  Grigsby  v.  Russell,  222  U.  S. 
149,    56    L.    Ed.   133,    32    S.    Ct.    58. 

127-37.  Nonpayment  of  premiums. — A 
condition  in  a  policy  of  life  insurance  that 
it  shall  be  void  if  premiums  are  not  paid 
when  due  means  only  that  it  shall  be  void- 
able at  the  option  of  the  company,  and  a 
breach  of  the  condition  may  be  waived. 
(1911),  Grigsby  v.  Russell,  222  U.  S.  149, 
56  L.  Ed.  133.  32  S.  Ct.  58,  reversing  de- 
cree (1909),  Russell  v.  Grigsby,  168  F. 
577,  94  C.  C.  A.  61. 

131-49a.  German  Alliance  Ins.  Co.  v. 
Hale,   219   U.    S.   307,   55   L.   Ed.   229,   31   S. 


678 


Vol.  MI. 


IXSURAXCE. 


131 


lation  to  that  end,  and  which  are  not  essentially  arbitrary,  can  not  properly  be 
characterized  as  a  deprivation  of  property  without  due  process  of  law,'*^''  or  as 
a  denial  of  equal  protection  of  the  laws."^^'^  They  are  enacted  under  the  power 
with  which  the  states  have  never  parted,  of  caring  for  the  common  good  wathin 
the  limits  of  constitutional  authority.'* ^'^ 

E|.  Loans  on  Policy. — A  policy  holder,  desiring  to  keep  his  policy  on  foot 
and  get  the  profit  by  the  reserve  value  that  it  has  acquired,  may  be  allowed,  at 
the  insurer's  discretion,  to  receive  a  sum  not  exceeding  the  present  value,  on 
the  terms  that,  on  the  settlement  of  any  claim  under  the  policy,  the  sum  so  re- 
ceived shall  be  deducted  with  interest ;  and  that,  on  failure  to  pay  any  premium 
or  interest,  the  sum  received  shall  be  deducted  from  the  reserve  value  at  once. 
This  is  called  a  loan.  It  is  represented  by  w'hat  is  called  a  note,  which  contains 
a  promise  to  pay  the  money  but  which  imposes  no  personal  liability  on  the  policy 
holder,  since  the  claim  of  the  policy  holder  on  the  one  side  and  of  the  insurer 
on  the  other  are  brought  into  an  account  current  by  the  very  act  that  creates  the 


Ct.  246,  citing  Lake  Shore,  etc.,  R.  Co.  f. 
'Ohio,  173  U.  S.  285,  297,  43  L.  Ed.  702,  19 
S.  Ct.  465;  Jacobson  v.  Massachusetts, 
197  U.  S.  11,  31,  49  L.  Ed.  643,  25  S.  Ct. 
358;  House  v.  Mayes,  219  U.  S.  270,  55  L. 
Ed.   213,   31   S.   Ct.  234. 

"The  business  of  fire  insurance  is,  as 
everyone  knows,  of  an  extensive  and  pe- 
culiar character,  and  its  management  con- 
cerns a  very  large  number  of  people, 
particularly  those  who  own  property  and 
desire  to  protect  themselves  by  insur- 
ance. We  can  well  understand  that  fire 
insurance  companies,  acting  together, 
may  have  owners  of  property  practically 
at  their  mercy  in  the  matter  of  rates,  and 
may  have  it  in  their  power  to  deprive  the 
public  generally  of  the  advantages  flow- 
ing from  competition  between  rival  or- 
ganizations engaged  in  the  business  of 
fire  insurance."  German  Alliance  Ins.  Co. 
V.  Hale.  219  U.  S.  307,  55  L.  Ed.  229,  31 
S.  Ct.  246,  citing  Carroll  v.  Greenwish 
Ins.  Co.,  199  U.  S.  401,  411,  50  L.  Ed.  24(3, 
26  S.  Ct.  66. 

131-49b.  Due  process  of  law  is  not  de- 
nied to  an  insurance  company  connected 
with  a  tarifif  association  which  fixes  rates, 
by  Ala.  Code  1896,  §§  2619,  2620,  under 
which  the  insured  or  beneficiary  in  a 
policy  issued  by  such  company  may  re- 
cover, in  addition  to  the  actual  loss,  25 
per  cent  of  the  amount  of  such  actual  loss 
or  damage,  any  stipulation  in  the  con- 
tract of  insurance  to  the  contrary  not- 
withstanding; but  such  statute  is  a  valid 
exercise  of  the  police  power  of  the  state, 
to  discourage  monopolies  and  to  en- 
courage competition  in  the  matter  of  in- 
surance rates.  German  Alliance  Ins.  Co. 
V.  Hale,  219  U.  S.  307,  55  L.  Ed.  229,  .U 
S.   Ct.  246. 

131-49C.  An  insurance  company  con- 
nected with  a  tariflf  association  which 
fixes  rates  is  not  denied  the  equal  pro- 
tection of  the  laws  by  Alabama  Code 
1896,  §§  2619,  2620,  under  which  the  in- 
sured or  beneficiary  in  a  policy  issued  by 


such  company  may  recover,  in  addition 
to  the  actual  loss  or  damage,  25  per  cent 
of  the  amount  of  such  actual  loss  or  dam- 
age, since  such  statute  places  upon  an 
equality  in  every  respect  all  insurers 
which,  at  the  time  of  issuing  the  insur- 
ance or  subsequentl}^  and  before  trial, 
were  in  anywaj*  connected  with  any  other 
persons,  associations,  or  corporations 
which  acted  together  in  fixing  insurance 
rates.  German  Alliance  Ins.  Co.  f.  Hale, 
219  U.  S.  307,  55  L.  Ed.  229,  31  S.  Ct.  246. 
See  ante,  CONSTITUTIONAL  LAW, 
p.  264. 

131-49d.  "The  state,  as  we  may  infer 
irom  the  words  of  the  statute  alone,  re- 
garded the  fixing  of  insurance  rates  by 
self-constituted  tarifif  associations  or  com- 
binations as  an  evil  against  which  the 
public  should  be  guarded  by  such  legis- 
lation as  the  state  was  competent  to  en- 
act. This  question  was  before  the  su- 
preme court  of  Alabama,  and  the  statute 
was  there  assailed  as  violating  both  the 
state  and  federal  constitutions.  That 
court  held  that  the  object  of  the  legis- 
lature of  Alabama  was  to  prevent  mo- 
nopol}'  and  to  encourage  competition  in 
the  matter  of  insurance  rates,  and  that 
the  statute  was  a  legitimate  exercise  to 
that  end  of  the  police  power  of  the  state, 
not  inconsistent  with  either  the  state  or 
federal  constitution.  Constitutional  Ins. 
Co.  V.  Parkes,  142  Ala.  650,  658,  659,  39  So. 
204.  The  same  view  of  the  statute  was 
taken  by  the  state  court  in  subsequent 
cases.  Fireman's  Fund  Ins.  Co.  v.  Hellner. 
159  Ala.  447,  49  So.  297,  17  A.  &  E.  Ann. 
Cas.  793;  /Etna  F.  Ins.  Co.  v.  Kennedy,  161 
Ala.  600,  50  So.  73.  We  concur  entirely 
in  the  opinion  expressed  by  the  state 
court,  that  the  statute  does  not  infringe 
the  federal  constitution,  nor  deprive  the 
insurance  company  of  any  right  granted 
or  secured  by  that  instrument."  German 
Alliance  Ins.  Co.  r.  Hale.  219  U.  S.  307, 
55  L.  Ed.  229.  31  S.  Ct.  246. 


679 


131-146 


INSURANCE. 


Vol.  VII. 


latter  claim.  In  settling  the  account  the  interest  will  be  computed  on  the  so- 
called  loan  but  it  never  could  be  sued  for,  any  more  than  any  other  single  item 
of  a  mutual  account  that  always  shows  a  balance  against  the  would-be  plaintiff. 
In  form,  it  subsists  as  an  item  until  the  settlement,  because  interest  must  be 
charged  on  it.  In  substance,  it  is  extinct  from  the  beginning,  because  it  is  a 
payment  and  not  a  loan.*^^ 

G.  Risks  and  Causes  of  Loss — 1><.  Effect  of  Pubuc  Policy. — Public 
policy  determines  the  validity  of  insurance  policies,  which  they  can  not  transcend 
even  by  explicit  declaration,  much  less  be  held  to  transcend  by  omissions  or  im- 
plications.^^^ 

4.  Life  Insurance — a.  Intentional  Self -Destruction — (1)  Suicide. — See 
note  81. 

e.  Legal  Execution. — See  note  7.    In   such  case   neither  the   estate  of   the  de- 


131-49e.  Loans  on  policy. — Parish  of 
Orleans  v.  New  York  Life  Ins.  Co.,  216  U. 
S.  517,  54  L.  Ed.  — ,  30  S.  Ct.  385. 

134-62a.  Effect  of  public  policy. — 
Northwestern  Mut.  Life  Ins.  Co.  v.  Mc- 
Cue,  223  U.  S.  234,  56  L.  Ed.  419,  32  S. 
Ct.  220.  See  post,  "Life  Insurance,"  IV, 
G,   4. 

138-81.  Policy  silent  as  to  suicide. — 
Northwestern  Mut.  Life  Ins.  Co.  v.  Mc- 
Cue,  223  U.  S.  234.  56  L.  Ed.  419,  32  S.  Ct. 
220,  approving  Ritter  v.  Mutual  Life  Ins. 
Co.,  169  U.  S.  139,  42  L.  Ed.  693,  18  S.  Ct. 
300,  in  which  the  court  based  its  con- 
clusion among  other  considerations,  upon 
public  policy,  the  court  saying  that  "a 
contract,  the  tendencj'  of  which  is  to  en- 
danger the  public  interests  or  injuriously 
affect  the  public  good,  or  which  is  sub- 
versive of  sound  morality,  ought  never  to 
receive  the  sanction  of  a  court  of  justice, 
or  be  made  the  foundation  of  its  judg- 
ment." 

In  Virginia. — "In  Plunkett  v.  Supreme 
Conclave.  I.  O.  H..  105  Va.  643,  55  S.  E. 
9,  a  certificate  of  membership  in  the  Con- 
clave, which  was  issued  to  one  Charles 
W.  Plunkett,  his  wife  being  the  bene- 
ficiary, was  considered.  One  of  the  con- 
ditions was  that  Plunkett  comply  with 
the  laws,  rules,  and  regulations  then  gov- 
erning the  Conclave,  or  that  might  in  the 
future  be  enacted.  There  was  no  pro- 
vision against  suicide  in  the  laws,  rules, 
or  regulations  when  the  certificate  was 
issued.  Such  a  provision  was  subse- 
quently enacted.  Plunkett  committed 
suicide,  and  the  Order  refused  to  pay 
benefits.  Plunkett's  wife  brought  suit  to 
recover  them,  and  asserted  a  vested  in- 
terest in  the  benefits  under  the  certificate. 
The  contention  was  rejected.  The  trial 
court  held  that  the  forfeifure  of  the  rights 
under  the  certificate,  if  the  insured  while 
sane  committed  suicide,  was  valid,  be- 
cause (1)  it  involved  no  vested  right  of 
the  insured,  and  (2)  because  it  was  a 
fundamental,  though  unexpressed,  part  of 
the  original  contract  that  tlie  insured 
should  not  intentionally  cause  his  own 
death.     And  the  court  added:     'Inasmuch 


as  the  original  contract  and  by-laws  were 
silent  upon  the  subject  of  suicide  by  the 
insured  while  sane,  the  new  by-law  is 
valid,  because  there  can  be  no  such  thing, 
as  a  vested  right  for  a  sane  man  to  com- 
mit suicide,  and  for  the  further  reason 
that  it  is  nothing  more  than  the  written 
expression  of  the  provision  which  the  law 
had  read  into  the  contract  at  its  incep- 
tion.' The  supreme  court  of  appeals 
affirmed  the  judgment,  quoting  the  reason- 
ing of  the  trial  court,  and  added  to  it  the 
considerations  of  public  policy  expressed 
in  the  Burt  v.  Union  Cent.  Life  Ins.  Co., 
187  U.  S.  362,  47  L.  Ed.  216,  23  S.  Ct.  139, 
and  Ritter  v.  Mutual  Life  Ins.  Co.,  169 
U.  S.  139,  42  L.  Ed.  693,  18  S.  Ct.  300,  and 
other  cases.  If  the  public  policy  of  Vir- 
ginia were  the  same  as,  it  is  contended, 
that  of  Wisconsin  is,  whether  this  court 
should  have  to  yield  it,  we  are  not  called 
upon  to  decide."  Northwestern  Mut. 
Life  Ins.  Co.  v.  McCue,  223  U.  S.  234,  56 
L.   Ed.  419,  425,  32   S.  Ct.  220. 

Wisconsin. — For  discussion  of  public 
policy  of  Wisconsin,  see  Northwestern 
Mut.  Life  Ins.  Co.  v.  McCue,  223  U.  S. 
234.  56  L.   Ed.  419,  32  S.   Ct.  220. 

146-7.  Legal  execution. — Death  by  a 
legal  execution  for  crime  is  not  covered 
by  a  policy  of  life  insurance,  though  the 
policy  contains  no  provision  excepting 
such  manner  of  death  from  the  risks  cov- 
ered by  it.  Northwestern  Mut.  Life  Ins. 
Co.  V.  McCue,  223  U.  S.  234,  56  L.  Ed. 
419.   32   S.   Ct.  220. 

"The  question  was  before  this  court  in 
Burt  V.  Union  Cent.  Life  Ins.  Co.,  187  U. 
S.  362,  47  L.  Ed.  216,  23  S.  Ct.  139.  In  the 
policy  passed  on,  as  in  the  policy  in  the 
case  at  bar,  there  was  no  provision  ex- 
cluding death  by  the  law.  It  was  de- 
cided, however,  that  such  must  be  con- 
sidered its  effect,  though  the  policy  con- 
tained nothing  covering  such  contingency. 
These  direct  questions  were  asked:  'Do 
insurance  policies  insure  against  crime? 
Is  that  a  risk  which  enters  into  and  be- 
comes a  part  of  the  contract?'  And  an- 
swering, after  discussion,  we  said:  'It  can 
not  be  that  one  of  the  risks  covered  by  a 


680 


Vol.  VII. 


INSURANCE. 


146-181 


ceased  nor  the  innocent  parties,  his  children,  can  recover.  The  latter  will  not  be 
admitted  as  claimants,  as  the  policy  is  the  measure  of  the  rights  of  everybody 
under  it,  and  as  it  does  not  cover  death  by  the  law,  there  can  not  be  recovery 
either  by  the  deceased's  estate  or 'by  his  children.*^  Provisions  in  the  charter  of 
a  foreign  life  insurance  company  making  a  person  who  insures  therein  a  mem- 
ber of  the  company,  and  fixing  his  interest  at  the  amount  of  his  insurance,  give 
no  right  of  recovery  for  death  by  legal  execution  for  crime,  where,  under  the 
laws  of  the  place  of  contract,  the  policy,  by  which  alone  the  rights  of  the  insured 
and  the  beneficiaries  must  be  measured,  does  not  cover  a  death  so  caused. ^"^ 

I.  Modification  and  Alteration  of  Contract. — See  post,  "Waiver  by 
Agents,"  IV,  K,  2,  f,  (2),  (h).. 

K.  Forfeiture  and  Avoidance — 2.  Forfeiture:s — c.  Breach  of  Continuing 
and  Promissory  Warranties  and  Conditions — (1)  Fire  Insurance — (b)  Precau- 
tions against  Fire — bb.  Care,  Occupancy  and  Use  of  Premises — (dd)  Keeping 
Explosives  and  Inflammable  Substances. — Blasting  powder,  although  it  may  be 
a  less  dangerous  explosive  than  dynamite  or  gunpowder,  is  none  the  less  included 
in  the  words,  "or  other  explosives,"  as  used  in  a  condition  avoiding  a  policy  of 
fire  insurance  if  there  be  kept,  used,  or  allowed  on  the  premises,  benzine,  benzole, 
dynamite,  ether,  fireworks,  gasoline,  Greek  fire,  gunpowder,  naphtha,  nitroglyc- 
erin, or  other  explosives. ^^^ 

f.  Waiver  and  Estoppel — (2)  Estoppel  by  Conduct — (e)  Necessity  for  IVrit- 
ing.—See  post,  "Waiver  by  Agents,"  IV,  K,  2,  f,  (2),  (h). 

(h)  Waiver  by  Agents — aa.  Authority  of  Agent — (bb)  Condition  Restricting 
Authority  of  Agent. — Where  the  policy  in  terms  provides  that  any  change,  mod- 
ification, or  waiver  of  its  conditions  must  be  written  upon  or  attached  to  policy, 
no  agent  has  the  power  to  change  or  modify  the  contract  in  any  other  manner-^*^^ 


contract  of  insurance  is  the  crime  of  the 
insured.  There  is  an  implied  obligation 
on  his  part  to  do  nothing  to  wrongfully 
accelerate  the  maturity  of  the  policy. 
Public  policy  forbids  the  insertion  in  a 
contract  of  a  condition  which  would  tend 
to  induce  crime,  and  as  it  forbids  the  in- 
troduction of  such  a  stipulation,  it  also 
forbids  the  enforcement  of  a  contract  un- 
der the  circumstances  which  can  not  be 
lawfully  stipulated  for.' "  Northwestern 
Mut.  Life  Ins.  Co.  v.  McCue,  223  U.  S. 
234,  56  L.   Ed.  419,  32  S.   Ct.  220. 

Virginia. — Public  policy  in  Virginia 
precludes  a  recovery  upon  a  policy  of  in- 
surance when  the  insured  is  legally  ex- 
ecuted. Northwestern  IMut.  Life  Ins.  Co. 
z:  McCue,  223  U.  S.  234,  .56  L.  Ed.  419,  32 
S.    Ct.   220. 

Wisconsin. — The  cases  which  declare 
the  public  policy  of  the  state  of  Wiscon- 
sin are  not  absolutely  definite.  Two  cases 
only  are  cited,  McCoy  v.  Northwestern 
Mut.  Relief  Asso.,  92  Wis.  577,  47  L.  R. 
A.  681,  66  N.  W.  697,  and  Patterson  v. 
Natural  Premium  Mut.  L.  Ins.  Co.,  100 
Wis.  118,  42  L.  R.  A.  253,  69  Am.  St.  Rep. 
899,  75  N.  W.  980.  Northwestern  Mut. 
Life  Ins.  Co.  v.  McCue.  223  U.  S.  234,  56 
L.   Ed.   419,  32   S.   Ct.  220. 

146-8a.  Northwestern  Mut.  Life  Ins. 
Co.  7'.  McCue,  223  U.  S.  234,  56  L.  Ed. 
419,  32  S.  Ct.  220. 

146-8b.     Northwestern    Mut.     Life      Ins. 


Co.  z\  McCue,  223  U.  S.  234,  56  L.  Ed.  419, 
32  S.  Ct.  220. 

173-15a.  Penman  v.  St.  Paul  Fire,  etc., 
Ins.  Co.,  216  U.  S.  311,  54  L.  Ed.  493,  30 
S.  Ct.  312,  affirming  St.  Paul  Fire  & 
Marine  Ins.  Co.  v.  Penman,  151  Fed.  961, 
81   C.   C.  A.   151. 

181-50a.  Necessity  for  writing. — Pen- 
man c'.  St.  Paul  Fire,  etc.,  Ins.  Co.,  216 
U.   S.  311,  54   L.  Ed.  493,  30  S.  Ct.  312. 

A  condition  avoiding  a  policy  oi  fire 
insurance  if  blasting  powder  be  kept  on 
the  premises  is  not  waived  because  the 
insurer's  agent  knew  that  the  building  in- 
sured was  to  be  occupied  by  miners, 
whose  custom  it  was  to  keep  blasting 
powder  in  their  homes,  and  for  that  rea- 
son charged  more  than  the  usual  rate, 
where  the  policy  guards  against  any  acts 
of  waiver  or  change  of  its  conditions  l)y 
providing  that  such  waiver  or  change,  to 
be  effective,  shall  be  written  upon,  or  at- 
tached to,  the  policy.  Penman  ?'.  St.  Paul 
Fire,  etc.,  Ins.  Co..  216  U.  S.  311,  54  L. 
Ed.   493,   30  S.   Ct.  312. 

"The  policy  furnishes  the  only  way  by 
which  its  terms  can  be  waived.  It  pro- 
vides against  modifications  by  the  usage 
or  custom  of  trade  or  manufacture.  It 
guards  against  any  acts  of  waiver  of  its 
conditions  or  a  change  of  them  by  agents. 
It  provides  that  such  waiver  or  change 
'shall  be  written  upon  or  attached'  to  the 
policy.  The  company  could  have  used  no 
words  wliich  would  have  been  more  ex- 


681 


182-183 


IXSURAKCB. 


\'ol.  VII. 


K|.  Right  of  Policy  Holder  to  Share  in  Surplus  and  Profits. — Trust  in 
Surplus  Fund. — There  is  no  trust  relation  in  New  York  between  a  mutual  life 
insurance  company  and  a  policy  holder  entitled  to  participate  equitably  in  the  dis- 
tribution of  the  surplus  according  to  such  methods  and  principles  as  shall  be 
adopted  by  the  company.^-''  Waste  and  misappropriation  of  the  moneys  of  a 
mutual  life  company  by  its  officers  or  directors  before  such  moneys  reach  the 
surplus  fund,  and  before  any  distribution  to  policy  holders  is  made,  do  not  au- 
thorize a  suit  in  equity  to  establish  a  trust  in  favor  of  a  policy  holder,  in  the  ab- 
sence of  any  trust  relation  between  the  company  and  the  policy  holder  resulting 
from  the  policy.^^"^ 

Accounting  and  Distribution  of  Surplus. — ^J^rauds  and  mismanagement  by 
the  officers  and  directors  of  a  mutual  life  company  do  not  entitle  a  policy  holder 
to  an  accounting  and  distribution  of  the  surplus  in  any  other  manner,  or  at  any 
other  time,  or  in  any  other  amounts,  than  as  provided  for  in  the  contract,  where, 
by  such  contract,  he  is  entitled  to  participate  equitably  in  the  distribution  of 
some  ])art  of  the  surplus,  according  to  such  principles  and  methods  as  shall  be 
adopted  by  the  company. ^-'^ 

Wrongdoing  by  the  officers  and  directors  of  mutual  life  company  gives 
no  jurisdiction  for  an  accounting  as  between  the  company  and  a  policy  holder,  in 
the  absence  of  any  trust  relation  between  them-^-"^ 

L.  Assignment  and  Transfer — 3.  Requisites — d.  Insurable  Interest  of 
Assignee. — Necessity  to  Sustain  Assignment  against  Personal  Represent- 
ative of  Assured. — The  holder  of  a  valid  policy  of  insurance  upon  his  own  life 
may,  as  a  matter  of  financial  necessity,  make  a  valid  assignment  of  the  policy  to 
a  person  having  no  insurable  interest  in  the  life  of  the  insured  in  consideration 
of  a  small  sum  of  money  and  an  undertaking  to  pay  the  premiums  due  and  to  be- 
come due,  and  the  assignee  takes  the  entire  interest  in  the  policy,  as  against  the 
persona]  representatives  of  the  insured. ^^^ 


plicit.  There  is  no  ambiguity  about  them. 
Parol  testimony  was  not  needed  nor  ad- 
missible to  interpret  them.  They  con- 
stituted the  contract  between  the  company 
and  the  insured.  Xo  agent  had  power  to 
change  or  modif}''  that  contract  except  in 
the  manner  provided.  This  was  decided 
in  Northern  Assur.  Co.  v.  Grand  View 
Bldg.  Ass'n,  183  U.  S.  308,  4G  L.  Ed.  213. 
22  S.  Ct.  133.  Any  other  ruling  would 
take  from  contracts  the  certain  evidence 
of  their  written  words,  and  turn  them 
over  for  meaning  to  the  disputes  of  parol 
testimony."  Penman  v.  St.  Paul  Fire,  etc., 
Ins.  Co.,  216  U.  S.  311,  54  L.  Ed.  493,  30 
S.    Ct.    312. 

182-52a.  Trust  in  surplus  fund. — Equi- 
table Life  Assur.  Soc.  v.  Brown,  213  U. 
S.    25,    53    L.    Ed.    682,   2!»    S.    Ct.    404. 

182-52b.  Effect  of  waste  and  misappro- 
priation.— Equitable  Life  Assur.  Soc.  v. 
Brown,  213  U.  S.  25,  53  L.  Ed.  682,  29  S. 
Ct.    404. 

182-52C.  Accounting  and  distribution. — ■ 
Equitable  Life  Assur.  Soc.  v.  Brown,  213 
U.  S.  25,  53  L.  Ed.  682,  29  S.  Ct.  404. 

182-52d.  Wrongdoing  by  ofF.cers. — 
Equitable  Life  Assur.  Soc.  v.  Brown,  213 
U.  S.  25,  53  L.  Ed.  682.  29  S.  Ct.  404,  re- 
versing 151  Fed.  1,  81  C.  C.  A.  1. 

183-59a.  Necessity  as  against  personal 
representative. — Grigsby   v.     Russell,     222 


U.  S.  149,  56  L.  Ed.  133,  32  S.  Ct.  58,  re- 
versing Russell  V.  Grigsby,  168  Fed.  577, 
94  C.  C.  A.  61,  distinguishing  and  over- 
ruling obiter  in  W'arnock  v.  Davis,  104  U. 
S.  775,  26  L.   Ed.  924. 

The  ground  suggested  for  denying  the 
validity  of  an  assignment  to  a  person  hav- 
ing no  interest  in  the  life  insured  is  the 
public  policy  that  refuses  to  allow  insur- 
ance to  be  taken  out  by  such  persons  in 
the  first  place.  But  when  the  question 
arises  upon  an  assignment,  it  is  assumed 
that  the  objection  to  the  insuiance  as  a 
wager  is  out  of  the  case.  The  danger 
that  might  arise  from  a  general  license  to 
all  to  insure  whom  they  like  does  not  ex- 
ist. Obviously  it  is  a  very  dififerent  thing 
from  granting  such  a  general  license,  to 
allow  the  holder  of  a  valid  insurance  upon 
his  own  life  to  transfer  it  to  one  whom 
he,  the  party  most  concerned,  is  not 
afraid  to  trust.  The  law  has  no  universal 
cynic  fear  of  the  temptation  opened  by  a 
pecuniary  benefit  accruing  upon  a  death. 
It  shows  no  prejudice  against  remainders 
after  life  estates,  even  by  the  rule  in 
Shelley's  Case.  Indeed,  the  ground  of 
the  objection  to  life  insurance  without  in- 
terest in  the  earlier  English  cases  was  not 
the  temptation  to  murder,  but  the  fact 
that  such  wagers  came  to  be  regarded  as 
a   mischievous   kind   of   gamnig.      Grigsby 


682 


\'ol.  VII. 


IXSURAXCE. 


183-203 


Condition  Requiring  Proof  of  Interest. — A  clause  in  a  policy  of  life  in- 
surance that  any  claim  against  the  company  arising  under  any  assignment  of  the 
poHcy  shall  be  subject  to  proof  of  interest  does  not  diminish  the  rights  of  an  as- 
signee with  no  insurable  interest,  as  against  the  personal  representatives  of  the 
insured,  if  there  is  no  rule  of  law  to  that  eft'ect.  and  the  company  sees  fit  to  pay.^^^ 

M.  Extent  of  Loss  and  Liability  Therefor — 1-.  Double  Insurance. — See 
post,  "Reinsurance.'"  I\  .  L'. 

U.  Reinsurance — 3.  Coxstructiox. — The  term  "reinsurance"  has  a  well- 
known  meaning.  That  kind  of  a  contract  has  been  in  force  in  the  commercial 
world  for  a  long  number  of  years,  and  it  is  entirely  different  from  what  is  termed 
"double  insurance,"  i.  e.,  an  insurance  of  the  same  interest.  The  contract  is  one 
of  indemnity  to  the  person  or  corporation  reinsured,  and  it  binds  the  reinsurer 
to  pay  to  the  reinsured  the  whole  loss  sustained  in  respect  to  the  subject  of  the 
insurance  to  the  extent  to  which  he  is  reinsured.^s^ 

5.  Payment  of  Loss  as  Condition  Precedent  to  Enforcement. — The  rein- 
sured, under  a  compact  of  reinsurance,  is  not  bound  to  pay  the  loss  before  en- 
forcing its  claim  against  the  reinsurer  because  such  compact  provides  that  losses, 
if  any,  shall  be  payable  pro  rata  with,  in  the  same  manner,  and  upon  the  same 
tenns  and  conditions  as  paid  by  the  reinsured  under  the  contracts  reinsured ;  and 
that,  in  no  event,  shall  the  reinsurer  be  liable  for  an  amount  in  excess  of  a  rata- 
ble proportion  of  the  sum  actually  paid  to  the  insured  by  the  reinsured  under  the 


V.    Russell,   222   U.    S.   149.   56   L.    Ed.   133. 
136,  32   S.  Ct.  5S. 

"Life  insurance  has  become  in  our  days 
one  of  the  best  recognized  forms  of  in- 
vestment and  self-compelled  saving.  So 
far  as  reasonable  safety  permits,  it  is 
desirable  to  give  to  life  policies  the  or- 
dinary characteristics  of  property.  This 
is  recognized  by  the  bankruptcv  law,  §  70, 
which  provides  that  unless  the  cash  sur- 
render value  of  a  policy  like  the  one  be- 
fore us  is  secured  to  the  trustee  within 
thirty  days  after  it  has  been  stated,  the 
policy  shall  pass  to  the  trustee  as  assets. 
Of  course  the  trustee  may  have  no  in- 
terest in  the  bankrupt's  life.  To  den}-  the 
right  to  sell  except  to  persons  having 
such  an  interest  is  to  diminish  appreciably 
the  value  of  the  contract  in  the  owner's 
hands.  The  collateral  difficulty  that  rose 
from  regarding  life  insurance  as  a  con- 
tract of  indemnit}'  only  (Godsall  z'. 
Boldero,  9  East  72),  long  has  disappeared. 
Insurance  Co.  z\  Bailey.  13  Wall.  616,  20 
L.  Ed.  501.  And  cases  in  which  a  person 
having  an  interest  lends  himself  to  one 
without  any,  as  a  cloak  to  what  is,  in  its 
inception,  a  wager,  have  no  similarity  to 
those  where  an  honest  contract  is  sold  in 
good  faith."  Grigsby  v.  R:T?.=ell,  222  U 
S.  149.  56  L.  Ed.  133,  32  S.  Ct.  58. 

"Coming  to  the  authorities  in  this 
court,  it  is  true  that  there  are  intimations 
in  favor  of  the  result  come  to  b}-  the  cir- 
cuit court  of  appeals.  But  the  case  in 
which  the  strongest  of  them  occur  was 
one  of  the  tj^pe  just  referred  to,  the 
policy  having  been  taken  out  for  the  pur- 
pose of  allowing  a  stranger  association  to 
pay  the  preiniums  and  receive  the  greater 


part  of  the  benefit,  and  having  been  as- 
signed to  it  at  once.  Warnock  r.  Davis. 
104  U.  S.  775.  26  L.  Ed.  924.  On  the  other 
hand,  it  has  been  decided  that  a  valid  pol- 
icy is  not  avoided  by  the  cessation  of  the 
insurable  interest,  even  as  against  the  in- 
surer, unless  so  provided  by  the  policj^  it- 
self. Connecticut  ^lut.  Life  Ins.  Co.  z\ 
Schaefer,  94  U.  S.  457,  24  L.  Ed.  251.  And 
expressions  more  or  less  in  favor  of  the 
doctrine  that  we  adopt  are  to  be  found 
also  in  ^Etna  I<ife  Ins.  Co.  z\  France,  94  L'. 
S.  561,  24  L.  Ed.  287;  New  York  Mut.  Life 
Ins.  Co.  V.  Armstrong,  117  U.  S.  591,  29  L. 
Ed.  997,  6  S.  Ct.  877.  It  is  enough  to  say 
that  while  the  court  below  might  hesitate 
to  decide  against  the  language  of  War- 
nock V.  Davis,  104  U.  S.  775,  26  L.  Ed.  924, 
there  has  been  no  decision  that  precludes 
us  from  exercising  our  own  judgment 
upon  this  much  debated  point.  It  is  at 
least  satisfactory-  to  learn  from  the  de- 
cision below  that  in  Tennessee,  where 
this  assignment  was  made,  although  there 
has  been  much  division  of  opinion,  the 
supreme  court  of  that  state  came  to  the 
conclusion  that  we  adopt,  in  an  unreported 
case,  Lewis  f.  Edwards,  December  14, 
1903.  The  law  in  England  and  the  pre- 
ponderance of  decisions  in  our  state 
courts  are  on  the  same  side.''  Grigsby  v. 
Russell,  222  U.  S.  149,  56  L.  Ed.  133,  32 
S.    Ct.   58. 

183-59b.  Condition  requiring  proof  of 
interest.— Grigsby  v.  Russell,  222  U.  S. 
149,  56   L.   Ed.  133,  32  S.  Ct.  58. 

203-38a.  Reinsurance  —  Construction. — 
Allemannia  Fire  Ins.  Co.  f.  Eiremen's  Ins. 
Co..  209  U.  S.  326.  52  L.  Ed.  815,  28  S.  Ct. 
544. 


683 


203-209 


INSURANCE. 


Vol.  VII. 


original  contracts  of  insurance,  after  deducting  therefrom  any  and  all  liability  of 
other  reinsurers.^'-"^ 

V.  Remedies — 9.  Process  and  Appearance — a.  Foreign  Company. — Upon 
What  Persons  Service  May  Be  Had. — It  is  not  necessary  that  express  au- 
thority to  receive  service  of  process  be  shown.  The  law  of  the  state  may  desig- 
nate an  agent  upon  whom  service  may  be  made,  if  he  be  one  sustaining  such  rela- 
tion to  the  company  that  the  state  may  designate  him  for  that  purpose,  exercising 
legislative  power  within  the  lawful  bounds  of  due  process  of  law."'"^ 


203-39a.  Payment  of  loss  as  condition 
precedent  to  enforcement. — -Allemannia 
Fire  Ins.  Co.  v.  Firemen's  Ins.  Co.,  209 
U.  S.  326.  52  L.  Ed.  815,  28  S.  Ct.  544,  af- 
firming 28  App.  D.  C.  330,  14  L.  R.  A.  (N. 
S.)    1049. 

"It  is  not  necessary  that  the  reinsured 
should  first  pay  the  loss  to  the  party  first 
insured  before  proceeding  against  the  re- 
insurer upon  his  contract.  The  liability 
of  the  latter  is  not  affected  by  the  in- 
solvency of  the  insured  or  by  its  inability 
to  fulfill  its  own  contract  with  the  original 
insured.  The  claim  of  the  reinsured  rests 
upon  its  liability  to  pay  its  loss  to  the 
original  insured,  and  is  not  based  upon 
the  greater  or  less  ability  to  pay  by  the 
reinsured.  If  the  reinsured  commenced 
his  action  against  the  reinsurer  before  he 
had  himself  paid  the  loss,  the  reinsvired 
took  upon  himself  the  burden  of  making 
out  his  claim  with  the  same  precision  that 
the  first  insured  would  be  required  to  do 
in  an  action  against  him.  But  there  is  no 
authority  for  saying  that  he  must  pay  the 
loss  before  enforcing  his  claim  against 
the  reinsurer."  Alleinannia  Fire  Ins.  Co. 
V.  Firemen's  Ins.  Co.,  209  U.  S.  326,  52 
L.   Ed.  815,  28   S.   Ct.  544. 

Payment  of  the  loss  to  the  original  in- 
sured is  not  made  a  prerequisite  to  a  re- 
covery by  the  reinsured  on  a  contract  of 
reinsurance,  because  the  compact  provides 
that  the  reinsured  shall  forward  to  the 
reinsurer  a  statement  of  the  date  and 
probable  amount  of  loss  or  damage,  and, 
after  having  adjusted,  accepted  proofs  of, 
or  paid,  such  loss  or  damage,  shall  for- 
ward the  proofs  and  a  copy  of  the  origi- 
nal receipt  taken  upon  the  payment  of 
such  loss.  Judgment  Allemannia  Fire  Ins. 
Co.  V.  Fireman's  Ins.  Co.  of  Baltimore 
("1906),  28  App.  D.  C.  330,  14  L.  R.  A.  (N. 
S.)  1049.  affirmed.  Allemannia  Fire  Ins. 
Co.  z:  Firemen's  Ins.  Co.,  209  U.  S.  326, 
52  L.  Ed.  815,  28  S.  Ct.  544. 

209-70a.  Upon  what  persons  service  may 
be  had. — Commercial  ]\Iut.  Acci.  Co.  z\ 
Davis,  213  U.  S.  245.  53  L.  Ed.  782,  29  S. 
Ct.  445,  approving  Connecticut  Mut.  Life 
Ins.  Co.  V.  Spratiey,  172  U.  S.  602,  43  L. 
Ed.   569,  19   S.   Ct.  308. 

Person  who  adjusts  or  settles  a  loss. — • 
.\  state  inay  provide,  as  has  Missouri  bj'' 
2  Rev.  Stat.  1899,  §  7932,  for  the  service 
of  process  in  'an  action  against  a  foreign 
insurance    company     upon      any      person 


within  the  state  who  adjusts  or  settles  a 
loss.  Commercial  Mut.  Acci.  Co.  v. 
Davis,  213  U.  S.  245,  53  L.  Ed.  782,  29  S. 
Ct.    445. 

A  foreign  accident  insurance  company 
which  has  policies  outstanding  in  the 
state,  and  has  and  exercises  the  right  to 
investigate  losses  thereunder,  to  examine 
the  body  of  the  deceased  insured  in 
proper  cases,  and  to  adjust  and  settle 
losses  within  the  state,  is  doing  business 
therein  so  as  to  support  service  of  process 
upon  a  local  agent  within  the  state,  con- 
formably to  2  ]\Io.  Rev.  Stat.  1899,  §  7992, 
providing  for  the  service  of  process  in 
actions  against  foreign  insurance  com- 
panies. Commercial  Mut.  Acci.  Co.  v. 
Davis,  213  U.  S.  245,  53  L.  Ed.  782.  29  S. 
Ct.   445. 

This  law  was  in  force  when  the  medical 
representative  of  the  company  came  into 
the  state,  clothed  with  full  authority  to 
settle  the  loss.  "The  company  must  be 
presumed  to  have  acted  with  knowledge 
of  this  statute.  The  company  could  only 
be  served  with  process  through  some 
agent.  It  was  competent  for  the  state, 
keeping  within  lawful  bounds,  to  designate 
the  agent  upon  whom  process  might  Ije 
served.  It  chose  to  enact  a  statute  pro- 
viding that  an  agent  competent  by  au- 
thority of  the  company  to  settle  and  ad- 
just losses  should  be  competent  to  repre- 
sent the  company  for  the  service  of 
process.  When  the  company  sent  such 
an  agent  into  Missouri,  by  force  of  the 
statute  he  is  presumed  to  represent  the 
company  for  the  purpose  of  service,  and 
to  be  vested  with  authority  in  respect  to 
such  service  so  far  as  to  make  it  known 
to  the  foreign  corporation  thus  coming 
within  the  state  and  subjecting  itself  to 
its  laws.''  Commercial  Mut.  Acci.  Co.  f. 
Davis.  213  U.  S.  245.  53  L.  Ed.  782.  29  S. 
Ct.  445,  citing  Lafayette  Ins.  Co.  v. 
French.  IS  How.  404,  408,  15  L.  Ed.  451. 

The  medical  representative  of  a  foreign 
insurance  company  who  comes  into  the 
state  clothed  wnth  full  authority  to  adjust 
a  claim  is  one  "who  adjusts  or  settles  a 
loss"  within  the  meaning  of  2  Mo.  Rev. 
Stat.  1899,  §  7992,  providing  for  the  serv- 
ice of  process  on  local  agents,  although 
in  fact  such  loss  is  not  actually  settled. 
Con\mercial  Mut.  Acci.  Co.  v.  Davis,  213 
U.    S.  245,   53   L.   Ed.   782,   29    S.   Ct.   445. 

Law   not   actually   settled. — "It    is    true 


684 


Vol.  VII.  IXTBRBST.  226-229 

n.  Pleading — a.  Declaration,  Bill  or  Complaint. — See  ante,  ''Bill — Allegation 
of  Insolvency,"  II,  E,  3 ;  "Right  of  Policy  Holder  to  Share  in  Surplus  and  Prof- 
its." IV,  KYo. 

INSURANCE  ADJUSTERS.— See  post,  Summons  and  Process. 

INSURRECTION.— See  Insurrection,  vol.  7,  p.  216.  And  see  ante.  Courts, 
p.  398 ;  Due  Process  oe  Law,  p.  475. 

INTENT. — See  ante,  Criminal  Law,  p.  434;  Fraudulent  and  \^oluntary 
Conveyances,  p.  600;  Homicide,  p.  619. 


INTEREST. 

II.  Allowance  of  Interest,  685. 

D.  Interest  as  Damages,  685. 
20.  For  Tort,  685. 

III.  Computation  of  Interest,  685. 

D.  Time  from  Which  Computed,  685. 
1.  In  General,  685. 

CROSS  REFERENCES. 

See  the  title  Interest,  vol.  7,  p.  217,  and  references  there  given. 
In  addition,  see  ante.  Bankruptcy,  p.  168. 

II.    Allowance  of  Interest. 

D.  Interest  as  Damages — 20.  For  Tort. — It  may  be  that,  in  the  absence 
of  statute,  the  general  rule  is  that  in  actions  for  tort  the  allowance  of  interest  is 
not  an  absolute  right.^^*^  But  by  the  Oklahoma  statutes"*^"^  interest  is  expressly 
made  a  part  of  the  detriment  caused  by  the  conversion  of  personal  property.'*^'^ 

III.    Computation  of  Interest. 

D.  Time  from  Which  Computed — 1.  In  General. — Interest  by  way  of 
damages  for  failure  to  pay  money  when  it  is  due  is  frequently  not  allowed  ex- 
cept from  the  time  the  amount  to  be  paid  has  been  definitely  ascertained.  But 
there  are  many  cases  in  which  interest  is  charged  from  a  prior  date.*^^'^ 

that  the  statute   says  that  service  may  be  Edmisson,  208  U.  S.  534,  52  L.  Ed.  606,  28 

upon   'any  person   within   the   state   *   *   *  S.    Ct.   367, 

who  adjusts  or  settles  the  loss,'  etc.    This  229-64a.     Time    from    which    interest    is 

language  clearly  has  reference  to  the  au-  computed. — Consaul  r.  Cummings,  222  U. 

thority  of  the  person  who  the  statute  de-  S.  262,  56  L.  Ed.  192,  32  S.  Ct.  S3. 
clares  to  be  competent  to  receive  service  There    was    a    special     partnership     be- 

of    summons,    and    the    statute,    in    effect,  tween  lawyers  for  the  prosecution  of  cer- 

provides  that  the    person     clothed     with  tain   claims   against   the   United   States   in 

such  power  shall  be  capable  of  receiving  congress  and  before  the  court  of  claims, 

service   upon   the    corporation.      The   stat-  One    of   the    partners    died.      It   was    held 

ute  designing  to  reach  one  having  the  au-  that   the    surviving   partner   was   properly 

thority   of   the   company   for   the   purpose  charged    with    interest     on      the      balance 

named,  it  is  immaterial  that  the  loss  was  found,    on    an    accounting,    to    be    due    to 

not    actually    settled."      Commercial    Mtit.  the    personal    representatives    of    the    de- 

Acci.    Co.   z:    Davis,   213    U.    S.    245,   53    L.  ceased   partner,    from    the    date   when    the 

Ed.  782.  29  S.  Ct.  445.  bill  was  filed,  where,  in  response  to  a  de- 

226-45a.    Allowance  of  interest    in     ac-  niand  for  settlement,  he  at  first  promised 

tions  for  tort. — Drumm-Flato  Comm.  Co.  to  make  a  statement,  and  then  contended, 

z\  Edmisson,  208  U.  S.  534,  52  L.  Ed.  606,  without  substantial  support,  that  the  part- 

28  S.  Ct.  367.  nership    was    dissolved    because     the      de- 

226-45b.    Oklahoma  statute. — Stat.  1893,  ceased  partner  had  transferred  his  interest 

§  2640.  in  the  fees,  and  also  resisted  the  account- 

226-45C.     Drumm-Flato    Comm.     Co.    v.  ing,    and    failed    to   produce     the      proper 

685 


237-242 


IN  TERN  A  TIONA  L  LA  W. 


Vol.  VII. 


INTERLOCKING  PLANT.— See  note     a.    - 

INTERLOCUTORY  INJUNCTION.— See  ante,   Injunctions,  p.  657. 

INTERLOCUTORY  JUDGMENTS,   ETC.— See  ante,  Appeal  and  Error, 

34;  post,  Judgments  and  Decrees. 

INTERNAL  COMMERCE. — See  post,  Interstate  and  Foreign  Commerce. 

INTERNAL  REVENUE.— See  post.  Revenue  Laws. 

INTERNAL  REVENUE  LICENSE.— See  post.  Revenue  Laws. 


INTERNATIONAL  LAW. 

II.  Jurisdiction  and  Sovereignty,  686. 

A.  General  Rules,  686. 

1.  Coextensive  with  Territory,  686. 
C.  Intervention,  686. 

III.  Acquisition  or  Division  of  Territory,  687. 

A.  Acquisition  of  Territory,  687. 

2.  Effect  of  Acquisition,  687. 

g.  Effect  as  to   Existing   Municipal   Corporations,   687. 

B.  Division  of  Territory,  687. 

CROSS   REFERENCES. 

See  the  title  International  Law,  vol.  7,  p.  239,  and  references  there  given. 

As  to  presumption  of  Spanish  allegiance  in  the  Philippine  Islands,  see  the  title 
AuEns,  p.  18;  Citizenship,  p.  235.  As  to  the  right  of  foreigners  to  practice 
law  in  the  Philippine  Islands,  see  ante.  Attorney  and  Client,  p.   158. 

II.    Jurisdiction  and  Sovereignty. 

A.  General  Rules — 1.  Coextensive  with  Territory. — See  note  12.  No 
doubt  in  regions  subject  to  no  sovereign,  like  the  high  seas,  or  to  no  law  that 
civilized  countries  would  recognize  as  adequate,  such  countries  may  treat  some 
relations  between  their  citizens  as  governed  by  their  own  law,  and  keep,  to  some 
extent,  the  old  notion  of  personal  sovereignty  alive. ^-'^ 

C.  Intervention. — The  right  of  the  United  States  to  intervene  to  stop  the 
effusion  of  blood  in  Cuba  and  protect  the  lives  and  property  of  their  citizens 
there  has    passed  beyond    judicial  incjuiry    and  become    a  rule  of    international 


books,  vouchers,  and  statements,  espe- 
cially, where  he  did  not  except  to  this 
method  of  calculating  interest,  but,  on  the 
contrary,  obtained  a  ruling  that,  on  the 
same  basis,  he  should  be  allowed  interest 
on  advances  made  by  him  to  the  deceased 
partner.  Consaul  v.  Cummings,  222  U.  S. 
262,   56    L.    Ed.    192,   32    S.    Ct.    83. 

237-a.  Interlocking  plant  not  included 
in  term  semaphores  or  other  signals.— 
The  words  "semaphores  or  other  signals" 
do  not  include  an  interlocking  plant  in  a 
contract  between  railroads  for  construc- 
tion, maintenance  and  grading  the  cross- 
ing of  two  railroads.  Grand  Trunk  R.  Co. 
V.  Railroad  Comm.,  221  U.  S.  400,  404,  55 
L.  Ed.  786,  21  S.  Ct.  537.  See  post,  RAIL- 
ROADS. 

242-12.  Jurisdiction  over  territory  of  an- 
other state. — Where  Costa  Rica  was  de 
facto  sovereign  over  part  of  Panama,  in- 


cluding the  McConnell  concession,  when 
plaintiff's  plantation  and  railroad  therein, 
was  injured  by  the  acts  of  Costa  Rican  sol- 
diers and  officers  acting  under  govern- 
mental authority,  such  acts  were  immune 
from  investigation  or  review  by  the  United 
States  courts.  Judgments  (C.  C.  1908), 
160  F.  184,  affirmed.  (1908),  American 
Banana  Co.  v.  United  Fruit  Co.,  166  F. 
261,  92  C.  C.  A.  325,  judgment  affirmed. 
American  Banana  Co.  v.  United  Fruit  Co., 
213  U.  S.  347.  53  L.  Ed.  826,  29  S.  Ct.  511. 
242-12a.  High  seas  and  uncivilized  coun- 
tries.— American  Banana  Co.  v.  United 
Fruit  Co.,  213  U.  S.  347,  53  L.  Ed.  826,  29 
S.  Ct.  511.  See  The  Hamilton,  207  U.  S. 
398,  403,  52  L.  Ed.  264,  28  S.  Ct.  133;  Hart 
V.  Gumpach,  L.  R.  4  P.  C.  439,  463,  464; 
British  South  Africa  Co.  v.  Comhanhia  de 
Mocambique  (1893),  A.  C.  602. 


686 


Vol.  \1I. 


INTBRPLEADBR. 


245-250 


law.-*'*'  During  the  period  of  occupation  of  Cuba  the  president  had  the  right  to 
prescribe  rules  and  regulations,  having  the  force  of  law,  for  the  government  of 
the  islands ;  yet  the  United  States  acted  in  the  capacity  of  trustee  for  the  protec- 
tion and  security  of  person  and  property  and  the  president  had  no  authority  to, 
practically,  so  extend  the  Union  that  a  citizen  of  the  United  States  should  be 
exempt  from  the  payment  of  duties. -'^'^ 

Obligations  Assumed  While  Occupying  Cuba. — The  obligations  assumed 
by  the  United  States  in  respect  to  Cuba  were  limited  by  treaty  to  the  time  of  oc- 
cupation. During  the  period  of  occupation  the  United  States  assumed  the  ob- 
ligations resulting  therefrom  under  international  law.-'^<=  The  United  States 
held  the  island  in  trust  for  the  inhabitants  thereof. ^^"^ 

III.    Acquisition  or  Division  of  Territory. 

A.  Acquisition  of  Territory — 2.  Effect  of  Acquisition — g.  Bffect  as  to 
Bxisting  Municipal  Corporations. — See  post,  Municipal  Corporations. 

B.  Division  of  Territory. — The  right  to  the  emoluments  incident  to  the 
hereditary  office  of  high  sheriff  of  Havana,  which  were  left  by  the  Spanish  law 
in  the  hands  of  the  incumbent  until  proceedings  for  the  condemnation  of  the  office 
should  be  completed  and  the  incumbent  be  paid,  did  not  survive  the  extinction  of 
the  sovereignty  of  Spain  over  Guba.^^'^ 

INTERPLEADER.— See  the  title  IntfrplFader,  vol.  7,  p.  256,  and  refer- 
ences there  given. 


245-26a.  Right  to  intervene. — Galban  & 
Co.  V.  United  States,  207  U.  S.  579,  52  L. 
Ed.  349,  28  S.  Ct.  254,  affirming  40  Ct.  CI. 
495. 

245-26b.  Power  of  president — Right  on 
intervention. — Galban  &  Co.  v.  United 
States.  207  U.  S.  579,  52  L.  Ed.  349,  28  S. 
Ct.  254,  affirming,  40  Ct.   CI.  495. 

The  powers  and  duties  of  the  United 
States  in  Cuba  were  tliose  of  a  trustee  for 
the  protection  and  security  of  persons 
and  property.  It  would  have  been  a  vio- 
lation of  their  obligations  as  trustee  to 
allow  their  own  citizens  to  import  mer- 
chandise free  of  the  duties  necessarily  im- 
posed for  the  purposes  of  government. 
Judgment  (1905),  40  Ct.  CI.  495,  affirmed. 
Galban  &  Co.  v.  United  States,  207  U.  S. 
579,  52  L.   Ed.  349,  28   S.   Ct.  254. 


245-26C.  Obligation  assumed  while  oc- 
cupying Cuba. — Galban  &  Co.  r.  United 
States,  207  U.  S.  579,  52  L.  Ed.  349,  28  S. 
Ct.  254,  affirming  40  Ct.  CI.  495. 

245-26d.  Island  held  in  trust.— It  has 
been  judicially  determined  that  Cuba  was 
foreign  territory  during  its  military  oc- 
cupation by  the  United  States,  but  that, 
as  between  Cuba  and  the  United  States, 
the  island  was  territory  held  by  the 
United  States  in  trust  for  the  inhabitants 
thereof.  Judgment  (1905),  40  Ct.  CI.  495, 
affirmed.  Galban  &  Co.  v.  United  States, 
207  U.   S.  579,  52  L.   Ed.  349,  28   S.   Ct.  254. 

250-38a.  Division  of  territory — What 
constitutes  property. — O'Reilly  De  Camara 
f.  Brooke,  209  U.  S.  45,  52  L.  Ed.  676,  28 
S.  Ct.  439,  affirming  142    Fed.  858. 


687 


258-265  INTERPRETATION  AND  CONSTRUCTION.         Vol.  VII. 


INTERPRETATION  AND  CONSTRUCTION. 

II.  Definition,  688. 
VII.  Meaning  of  Words  and  Phrases,  688. 

B.  Meaning  Given  by  Usage,  688. 
XIV.  Surrounding  Facts  and  Circumstances,  688. 
XV.  Construction  Adopted  by  Parties,  688. 

CROSS  REFERENCES. 

See  the  title  Interpretation  and  Construction,  vol.  7,  p.  257,  and  references 
there  given. 

In  addition,  see  ante,  Insurance,  p.  674;  Statutes;  Usages  and  Customs; 
Wills. 

II.    Definition. 

In  common  usage,  interpretation  and  construction  are  usually  understood  as 
having  the  same  significance.'' 

VII.  Meaning  of  Words  and  Phrases. 
B.    Meaning  Given  by  Usage. — See  note  37. 

XIV.    Surrounding  Facts  and  Circumstances. 

See  note  57. 

XV.    Construction  Adopted  by  Parties. 

Supplemental  Contract. — A  contractor  for  a  public  improvement,  who. 
pending  a  dispute  with  the  government  as  to  his  right  to  compensation  for  certain 
work,  enters  into  a  supplemental  contract  with  the  same  terms  and  specifications 
as  the  original,  with  full  knowledge  of  the  meaning  affixed  by  the  government 

258-a.      In    common    usage,    interpreta-  fore-  dredging   is    commenced    and     after 

tion   and   construction   have   same    signif-  completion,    require    that    the    work    shall 

icance. — United    States    f.    Keitel,    211    U.  be  plainly  located  by  stakes  and  ranges, 

S.  370,  53  L.  Ed.  230,  29  S.  Ct.  123;  United  which   shall  be  kept  continually  in   place. 

States  V.  Biggs,  211  U.  S.  507,  53   L.  Ed.  and  preclude  extra  allowance  for  excavat- 

305,  29   S.   Ct.   181.  ing    material    different    from    that    therein 

"This  was  aptly  pointed  out  in  Cooley's  described,  or  payment  for  work  outside 
constitutional  limitations,  6th  edition,  the  designated  lines  of  excavation  or  be- 
where,  after  stating  the  theoretical  dif-  low  the  specified  depth,  and  state  that 
ference,  it  is  observed  (p.  52) :  'In  com-  any  material  deposited  otherwise  than 
mon  use,  however,  the  word  "construe-  specified  and  agreed  upon  must  be  re- 
tion"  is  generally  employed  in  the  law  in  moved  by  the  contractor  at  his  own  ex- 
a  sense  embracing  all  that  is  properly  pense,  that  no  guaranty  is"  given  as  to  the 
covered  by  both,  when  each  is  used  in  a  nature  of  the  bottom,  and  that  no  claim 
sense  strictly  and  technically  correct.'  "  will  be  made  for  any  excess  or  deficiency 
United  States  v.  Keitel,  211  U.  S.  370,  53  in  the  estimate  of  quantity.  Bowers,  etc., 
L.   Ed.   230.   29   S.   Ct.   123.  Dredging  Co.  7'.   United  States,  211  U.   S. 

263-37.  Words  in  dredging  contract  not  176,  53  L.  Ed.  136,  29  S.  Ct.  77. 
given  a  trade  meaning. — Payment  for  re-  265-57.  The  circumstances  surrounding 
iTioving  the  earth  which  may  slide  into  the  making  of  a  contract,  and  affecting 
the  channel  from  the  sides  or  slopes  dur-  the  subject  to  which  it  relates,  form  a 
ing  excavation  is  so  clearly  excluded  by  a  sort  of  context  that  may  properly  be  re- 
dredging  contract  as  to  prevent  giving  sorted  to  for  aid  in  determining  the  mean- 
the  words  "measured  in  place"  a  trade  ing  of  the  words  and  provisions  of  tlie 
meaning  which  demands  a  different  con-  contract.  Penman  v.  St.  Paul  Fire,  etc.. 
struction,  where  the  specifications  provide  Ins.  Co.,  216  U.  S.  311,  54  L.  Ed.  493,  30 
for  payment  by  the  cubic  yard,  measured  S.  Ct.  312.  See  ante,  CONTRACTS, 
in  place,  determined  by  surveys  made  be-  p.  373. 

688 


Vol.  VII.  INTERSTATE,  ETC.,   COMMERCE.  266 

to  the  terms  of  such  original  contract,  which  had  been  insisted  upon  by  it  in 
carrying  on  previous  operations,  is  precluded  from  claiming  compensation  under 
the  new  contract  for  any  work  of  that  character.''^* 

INTERPRETERS.— See  the  title   IxterprEters,  vol.   7.  p.  268,  and  refer- 
ences there  given. 
INTERROGATORIES.— See  post,  \'erdict. 


INTERSTATE  AND  FOREIGN  COMMERCE. 

I.  What  Constitutes,  697. 

A.  Interstate  and  Foreign  Commerce,  697. 

1.  Definitions  and  Nature,  697. 

a.  Commerce   Defined   Generally,  697. 

b.  Interstate  and  Foreign  Commerce  Defined,  697. 

2.  Subjects,  698. 

b.  Lawful  Subjects  of  Ownership  and  Property,  698. 

c.  Particular  Articles,  698. 

(2)    Intoxicating  Liquors,  698. 

(6)  Waters   of   Flowing  Stream,  698. 

(7)  Natural  Gas  and  Oil,  698. 

3.  Transactions   Constituting.   698. 

a.  .Transportation   of   Freight  and   Passengers,  698. 

d.  Purchase  and  Sale  of  Goods,  698. 

h.  Grain  Warehouses  and  Elevators,  699. 
j.  Telegraphic   Communications,  699. 

k.  Banker   Forwarding   Deposits   to   I^oreign   Countries,   700. 
1.  Contracts    Incidentally   Affecting   Commerce ;    Brokerage   and 

Commission  Contracts,  700. 
m.  Communication  through  the  ]\Iails ;  Correspondence  Schools, 
701. 

4.  Protection   of   Commerce   Clause,   701. 

a.  When  Protection  Attaches,  701. 

b.  When   Protection   Ceases,  702. 

(1)  In  General,  702. 

(2)  Original  Packages,  703. 

(b)  Right  to  .Sell   in  Original   Package,   703. 

(c)  Taxation,  703. 

B.  Internal  or   Intrastate   Commerce.   703. 

C.  Commerce  with   Indian  Tribes,  703. 

11.  Reg-ulation  and  Control,  703. 

A.  Interstate   and   Foreign  Commerce,   703. 
1.  Power  of  Congress,  703. 

a.  In  General,  703. 

(3)  Application  of  Common-Law  Principles  in  Absence  of 

Statute,  703. 

b.  Nature  and  Extent  of  Power,  703. 

(1)   In   General,    70?>. 

(a)    Power   to    Regulate   Defined,    703. 

266-70a.     Supplemental  contract. — Bowers,   etc..    Dredging   Co.  v.   United   States, 

211    U.   S.   176.   5.3   L.    Ed.    136,   29    S.    Ct.   77. 

12    U    S     Enc— 4-t  689 


INTERSTATE,  ETC.,  COMMERCE.  Vol.  VII. 

(b)  Constitutional   Limitations,   703. 

(c)  Power   over    Interstate     and     Foreign    Commerce 

Compared,    705. 
(j)   Means  Employed,  705. 

ff.  By  Making  Principal  Liable  for  Acts  of  Agents 
705. 

(2)  Exclusiveness  of   Power,  705. 

(a)  Effect  of  Grant    of    Power    to    Congress    Accom- 

panied by  Exercise  of  Power,  705. 

(b)  Effect  of  Grant  of  Power  to  Congress  Anterior  to 

Exercise  of  Power  by  Congress,  705. 
bb.  Decisions  Holding  Grant  Not  in  All  Respects 

Exclusive,   705. 
cc.  Decisions    Holding    Power    Exclusive — Better 
Rule,  706. 
(aa)   General   Statement  of  Rule,  706. 
(bb)   Validity  of  State  Legislation  Merely  Af- 
fecting Commerce,  706. 
aaa.  In   General,   706. 

(3)  Subjects  of  Regulation,  706. 

(a)  In  General,  706. 

aa.  All    Commercial    Intercourse,    706. 

bb.  Subjects   of  Commerce   and   Persons  Engaged 

Therein,    706. 
cc.  Instrumentalities,  706. 

(b)  Regulation    of    Particular    Matters,    707. 
bb.  Corporations.   707. 

dd.  Railroads,  707. 

(aa)   In  General,  707. 

(cc)  Equal    Accommodations    to    Passengers, 

707. 
(cc^^)   Safety   of    Persons   and   Property,  707. 
aaa.  In  General,  707. 

bbb.  Rolling    Stock    and    Equipment,    707. 
(aaa)   In  General,  707. 
(bbb)    Safety   Appliance   Act,   708. 
ccc.  Train  Crew ;  Number  and  Qualifica- 
tions,   710. 
ddd.  Hours  of  Labor,  711. 
eee.  Employers'   Liability  Acts,  714. 
(dd)   Protection  of  Lives  and  Limbs  of  Em- 
ployees, 719. 
(ee)  Qualifications,   Duties  and  Liabilities  of 
Emplovees,   719. 
(ff)   Liability  of  Carrier,  719. 

hh.  Exclusion  of  Imports — Establishment  of  Stan- 
dards, 721. 
ii.  Fisheries,  721. 
jj.  Immigration,  721. 
nn.  Monopolies  and   Trusts,   722. 
00.  Private   Contracts,  722.- 
ss.  Wharves,   72Z. 
tt.  Navigation   and   Navigable   Waters,   723. 

(bb)   Control  of  Navigable  Waters  of  United 
States,  723. 
aaa.  In  General,  723. 

690 


Vol.  VII.  INTERSTATE,  ETC.,  COMMERCE. 

ccc.  Improvement      of      Navigability      of 
Waters,    723. 
(aaa)   In  General,  72Z. 
(bbb)   Prevention  or  Removal  of  Ob- 
structions, 723. 
(cc)  Regulation    of    Particular    Matters,    723. 
iii.  Liability    for   Marine   Torts,   722). 
uu.  Houses  of   Ill-Fame,  723. 
2.  Power  of  States,  722). 

a.  In  General,  723. 

(1)  Right  to  Engage  in  Not  Derived  from  the  State,  723. 

(2)  Mere  Desire  to  Use  Property  in  Commerce  Not  Suf- 

ficient, 724. 

(3)  Power  of  State  Divided  into  Three  Classes,  724. 

(4)  No    Distinction   between   Regulations    Based   upon    the 

Common  Law  and  Those  Based  upon  Statutes,  724. 

b.  Where  Congress  Has  Acted,  724. 

(1)  In  General,  724. 

(2)  Conflicting   State   and   Federal   Legislation.   724. 

(3)  Where   Congress   Has   Not  Occupied  the  Full   Sphere 

of  Its  Jurisdiction,  725. 

c.  Where  Congress  Has  Not  Acted,  726. 

(1)  In  General,  726. 

(3)   Subjects  of  Local  Concern  and  Local  Police   Regula- 
tions, 726. 

(b)  Particular   Matters    Over   Which    State    Authority 

May   Be   Exerted,   726. 

(c)  Police  Regulations,  726. 

aa.  Police  Power  of  States  Not  Surrendered  by 
Grant  of  Commercial  Power  to  Congress, 
726. 

bb.  General  Nature  of  Police  Power,  726. 

cc.  Police  Power  as  Limited  by  Commercial  Power 
of  Congress,  726. 

d.  State    Statutes   Afi^ecting   Interstate   and    Foreign    Commerce, 

727. 

(2)  Construction   of    Statutes,   727. 
(a)   In  General,  727. 

(3)  Discrimination,  727. 

(8)   Excluding   Imports   and   Preventing  Exports,  727. 
(a)   Exclusion  of   Imports,  727. 

aa.  Lawful  Articles  of  Commerce,  727. 
fb)   Prohibiting  or   Impeding  Exportation,  728. 

(11)  Fish  and  Oysters,  728. 

(12)  Foreign  Corporations,  728. 

(a)   General  Power  of  State,  728. 
(i)   Taxation  and  Licenses,  729. 
aa.  In  General,  729. 

(13)  Game,  732. 

(15)   Inspection  Laws,  722. 
(17)   Intoxicating  Liquors.  722. 
(a)   In  General,   722. 

(c)  While  Property  Is  in  Transit,  722. 
aa.  In  General.  722. 

bb.  When  Property  Is  in  Transit,  722. 

(d)  After  Property  Has  Reached  Its  Destination,  733. 

691 


INTERSTATE,  ETC.,  COMMERCE.  Vol.  VII. 

bb.  Since  Passage  of  Wilson  Act,  7Z2). 
(aa)  The  Act,  72>Z. 

ccc.  Object  and   Purpose,  733. 

(e)  Power  of  State  to  Tax  or  License,  734. 
aa.  In  General,,  734. 

(19)   Navigation  and  Navigable  Waters,  734. 

(a)  In    General,   734. 

(b)  W'hat  Constitutes  Navigable   Waters,  734. 

(c)  Regulation   of   Navigation   and   Navigable   \\^aters, 

734. 
bb.  Navigable  Waters  of  United  States,  734. 
(aa)   In  General,  734. 

(bb)   In  Absence  of  Congressional  Action,  735. 
(ee)    Particular    Regulation    Considered,    7?)h. 
eee.  Marine   Torts,   72)S. 

(21)  Pilot  Regulations,  735. 

(f)  Pilotage  at  Ports  Situated  upon  Boundary  of  Two 

States,  735. 

(22)  Quarantine  Laws,  7ZS. 

(23)  Railroads  and  Other  Carriers,  735. 

(a)  In   General,   7Z'^. 

(b)  Purchase    or    Consolidation    of    Competing    Lines, 

736. 

(c)  Regulation  of  Charges  for  Transportation,  736. 
aa.  In  General,  736. 

(e)   Regulations  to   Prevent  Injuries  by  Carriers,  72)7. 
cc.  Regulation    with    Regard   to    Speed   of   Trains 
and   Other   Precautions,   7Z7. 
(i)   Requiring  Trains  to  Stop  at  Certain  Stations,  7?)7. 
{'])   Regulations   with  Respect  to  Liability  of  Carriers, 
738. 
bb.  Liability  beyond  Carrier's  Own  Lines,  738. 
cc.  Penalizing  Delay  in  Settlement  of  Claims,  738. 
(k)   Rights   and    Privileges   of   Passengers,   738. 

bb.  Equal,     but     Separate,     Accommodations      for 
White  and   Colored   Passengers,  738. 
(1)   Facilities    for   Transportation,   738. 
(n)   Regulating  Relation   of   INIaster  and  Servant,  739. 

(24)  Sale  of  Goods,  740. 

(25)  Telegraph  Companies,  740. 

(a)  In  General,  740. 

(b)  Buildings,   Poles   and   \\'ires,   740. 

(c)  Transmission   and   Delivery   of   Messages,   740. 
aa.  In  General,  740. 

(e)  Taxation,  741. 

(f)  Charge  for  Poles  Placed  in  Streets.  741. 

(g)  Fees  to  Defray  Expense  of  Local  Inspection  and 

Supervision,  741. 

(29)  State  Pure  Food  Laws.  741. 

(30)  Natural  Gas,  742. 

(31)  Diverting  Waters   of   Stream   into  Another  State.  742. 

(32)  Laws  for  Enforcement  of  Debts;    Interference  through 

Judicial   Process,   743. 
(33)   Brokerage  and  Commission  Business;  Dealing  in  Fu- 
tures, etc.,  743. 

692 


Vol.  VII.  INTERSTATE,  ETC.,  COMMERCE. 

(34)   Disorderly  Houses,  743. 
e.  Remedy   against   Illegal   State   Interference,   .^43. 

B.  Internal  or  Intrastate  Commerce,  744. 

1.  Power  of  Congress,  744. 

a.  In  General,  744. 

2.  Power  of  States,  744. 

a.  In  General,  744. 

b.  Regulation  of   Particular   Matters,   744. 

C.  Commerce  with  Indian  Tribes,  745. 

1.  Power  of  Congress,  745. 

b.  Nature  and  Extent  of  Power,  745. 

(1)  In  General,  745. 

(2)  Particular   Regulations.   745. 
fa)  Liquor  Traffic,  745. 

D.  Commerce  in  Territories  and  Places  under  Exclusive  Federal  Control, 

748. 

in.  state  Taxation,   749. 

B.   Power  to  Tax  Interstate  and  Foreign  Commerce,  749. 

1.  In  General,  749. 

2.  What  Constitutes  Taxation  of  Interstate  and  Foreign  Commerce, 

749. 

a.  In  General,  749. 

b.  Occupation  and  Business  Tax,  749. 

(1)  In  General,  749. 

(2)  License   Tax    for   Privilege   of    Carrying   on   Interstate 

Commerce,   749. 

(a)  Doctrine  Stated,  749. 

(b)  Application    of    Doctrine,    749. 

aa.  Carriers   Doing   Interstate   Business,   749.' 
cc.  Solicitors    for    Orders   for    Foreign    Prodticts, 
750. 
faa)    In  General — Business  Confined  to  Inter- 
state  Transactions,   750. 
(cc)    Persons    Soliciting    Orders    for    Intoxi- 
cating Liquors.  750. 
dd.  Money  and  Exchange  Brokers,  7?0. 
ddy2.  Bankers    Engaged    in    Forwarding    Deposits 

to   Other   States   and   Countries,   750. 
ff.  Agency  Engaged  in  Interstate  Commerce,  750. 
gg.  Peddlers,  etc.,   751. 

e.  Taxation  of  Property  Engaged  in  Commerce,  751. 

(1)  In  General,  751. 

(a)  Property  within  the  State  Limits,  751. 
aa.  General   Rules,  751. 

(b)  Property  Outside  of  State  Limits,  752. 

(2)  Corporate   Franchise,   752. 

(3)  Personal    Property    of    Foreign    Corporations — Rolling 

Stock,  752. 
(3^^)  Tax  on  Capital  Stock,  752. 

(4)  Privilege  Tax  Based  upon  \'alue  of  Propertv.  752. 

(5)  The  Unit  Rule,  752. 

f.  Gross  Receipts.  752. 

j.  Taxation  of  Subjects  of  Commerce,  753. 
(2)   Imports  and  Exports,  753. 

693 


INTERSTATE,  ETC.,  COMMERCE.  Vol.  VII. 

(a)  Exports,  7dZ. 

(b)  Imports,  754. 

aa.  Property   in   Transit,   754. 
bb.  Taxation  upon  Arrival  at  Destination,  754. 
(aa)   Property    Retaining    Distinctive    Charac- 
'  ter  as  Imports,  754. 

bbb.  Original    Package   Rule,   754. 
(aaa)   In  General,  754. 
(bb)    Property      Commingled      with      General 
Mass  of  Property,  755. 
aaa.  In  General,  755. 
bbb.  Discrimination,    755. 
(aaa)   In  General,  755. 
(cc)   Exercise     of     Police     Power — Intoxicat- 
ing Liquors,  7SS. 

IV.  Interstate  Commerce  Act,   7hi. 

A.  Nature,  Purpose,  Constitutionality  and  Construction,  755. 

1.  Nature  and  Purpose,  755. 

2.  Constitutionality,  756. 

B.  Carriers  Subject  to  Act,  756. 

1.  In  General,  756. 

3.  Terms  "Railroad"  and  "Transportation'"  Defined,  758. 

C.  Just  and  Reasonable  Charges,  758. 

1.  In   General,   758. 

3.  Power  to  Prescribe  Rates,  758. 

4.  Determination  of  Question  of  Reasonableness  and  Justice,  759. 

c.  Interests  to   Be  Considered,  759. 

e.  Permanent  Improvements  and"  Equipments,  761. 

5.  Terminal  Charges,  761. 

D.  Special  Rates,  Rebates,  etc.,  Prohibited,  761. 

1.  Unjust   Discriminations   in   Rates   Generally,   761. 
a^.  Constitutionality  of   Statute,  761. 

(1)  General   Power  of   Congress,  761. 

(2)  jNIaking  Principal  Liable  for  Acts  of  His  Agent,  761. 

(3)  Who  May  Raise  Constitutional  Objections,  7'62. 

(4)  Separability  of- Statute,  762. 

a^.  Purpose,    Construction,    Operation   and    Effect   of    Statute, 
762. 

(1)  General  Purpose  of  Statute,  762. 

(2)  Paramount  in   Its  Operation,  762. 

(3)  What    Constitutes     Foreign     or    Interstate     Shipment 

within  Meaning  of  Act,  763. 

(4)  Embraces  All  Manner  of  Carriage,  Gratuitous  or  Other- 

wise, 763. 

(a)  Generally,   763. 

(b)  Free  Transportation  by  Express  Companies,  763. 

(5)  Special    Contracts    Waiving,    IModifying,    or   Annulling 

Provisions  of  Act,  764. 

(6)  Existing  Contracts  Lawful  When  Made,  764. 

(7)  Character  of  Compensation;    Payment  Only  in  ^Monev, 

765. 

(8)  Knowledge,  Intent,  Good  Faith,  etc.,  766. 

(9)  Secret  or  Fraudulent  Device  or  Contrivance,  766. 
(10)   Posting  of  Rates  Not  Necessary  Element  of  Offense, 

767. 

694 


Vol.  VIl.  INTERSTATE,  ETC,  COMMERCE. 

(11)  Liability  of  Carrier  Participating  in  Joint  or  Through 

Rate,  767. 

(12)  When  Offense  Complete,  "768. 

(13)  Amendment  and  Repeal  of  Act,  769. 

b.  Like    and    Contemporaneous    Service    under    Similar    Condi- 

tions, 769. 

(2)  Competition,  769. 

(3)  Discrimination   Based   on   Ownership;   Aggregation  of 

Shipments  by  Forwarding  ^Agents,  etc.,  770. 

(4)  Discrimination  as  between  Dift'erent  Commodities,  77L 

(5)  Discrimination    in    Rates    Based    upon    Difference    in 

Facilities,  771. 

(a)  Discrimination  in  Favor  of  Carriers  by  Reason  of 

Their  Superior  Facilities,  77L 

(b)  Allovv-ance  for  Privately  Owned  Facilities,  771. 
aa.  In  General,  771. 

bb.  Elevator  Service  in  Connection  with  Shipment 
of  Grain,  772. 
3.  Party-Rate  Tickets  and  Reduced  Fares,  774. 

E.  Undue  Preference  and  Equal  Facilities,  774. 

1.  L'ndue  Preferences  or  Advantages  Prohibited,  774. 

c.  Dissimilarity  of   Circumstances  and   Conditions,  774. 

(3)  Competition,  774. 

(a)  In  General,  774. 

(b)  As  to  Long  and  Short  Hauls,  774. 

(4)  As  between  Commodities  and  Localities,  774. 

2.  Equal  Facilities,  775. 

a.  For   Interchange   of  Traffic,   775. 

b.  Distribution  of  Cars,  775. 

(1)  In  General,  775. 

(2)  As   between   Carriers   and   Shippers,   776. 

(a)  In  General,  776. 

(b)  Disassociation  of  Carrier  from  Interest  or  Owner- 

ship   in    Commodity    Carried,    776. 

aa.  Power  of  Congress ;  Constitutionality  of  Act, 
776. 

bb.  Common  Purpose  of  the  Act,  777. 

cc.  "Railroad"  within  Meaning  of  Act,  778. 

dd.  Character  of  Interest  or  Ownership  Forbid- 
den, 778. 

c.  Lease  or  IMonopoly  of  Wharfage  Facilities  to  Favored  Ship- 

per, 779. 

d.  Spur  Tracks.  Switch  Connections,  etc.,  780. 

F.  Long  and  Short  Hauls,  780. 

H.  Printed   Schedules  of  Rates  to  Be  Posted — Notice  of  Advance  and 
Reduction — Joint  Rate  Tariffs,  780. 
L  Establishing,    Publishing   and    Filing    Schedules   of   Rates,    Fares 
and  Charges,  780. 
a.  Duty  to  Establish  and  Publish — Terms  of  Statute,  780. 

c.  Contents  of  Schedules,  781. 

d.  Manner  of  Publication,  781. 

3.  Effect  of  Variance  from  Schedule  Rates,  781. 

a.  In  General.  781. 

4.  Joint  Tariffs  of  Rates,  782. 

J.  Free  Carriage  or  Reduced  Rates,  783. 

695 


INTERSTATE,  ETC.,   COMMERCE.  Vol.  VII. 

K.  The  Interstate  Commerce  Commission  and  the  Enforcement  of  the 
Act,  7'83. 
2.  Enforcement  of  Act  and  Consequences  of  Violation,  783. 

a.  General    Nature   and    Powers   of   Commission,   783. 

(1)   An  Administrative  Board,  783. 

b.  Scope  of   Commission  and   Prosecution  of   Proceedings,  783. 

(1)  Scope  of  Duties  and  Powers  in  General,  783. 

(2)  Power   to    Investigate    and    Require    Information,    783. 

(3)  Complaint  or  Suit  by  Persons  Damaged,  783. 
(c)   Suit  or  Action,  7S3. 

34aa.  Parties,  783. 

^/^aa.  Conditions    Precedent    to    Right  to    Invoke 

Aid  of  Courts,  783. 
aa.   Jurisdiction,  786. 

CO.  Action    to     Recover    Unreasonable      Charges, 
786. 

(4)  Proceedings  on  Commission's  Own   Motion,  786. 
(a)   Power  Generally,  786. 

(a^)   Power  to  Investigate  and  Require  Information, 
7'86. 
aa.  Generally  with  Respect  to  Attendance  of  Wit- 
nesses and   Production  of   Evidence,  786. 
bb.  Power   to    Prescribe    System    of    Accounting, 
to  Call  for  Reports,  etc.,  787. 
cc.  Presumption   and   Burden   of    Proof,   788. 
dd.  Admissibility   of    Evidence,    788. 
ee.  Self-Incriminating    Disclosures,    7^8. 

(5)  Notice  and  Enforcement  of  Findings,  789. 

(6)  Judicial   Review   of   Findings  and  Orders  of   Commis- 

sion, 789. 

(a)  Generally,  789. 

(b)  Constitution  and  Powers  of  the  Commerce  Court, 

792. 
aa.  General   Purpose   and    Intent   of    Act   Creating 

Court,  792. 
bb.  Jurisdiction  of  Court  in  General,  792. 
cc.  Powers  Conferred  by  §  207,  Subdivision  2,  793. 
dd.  Review   of  0|uestion  of  Jurisdiction,   794. 
ee.  Temporary    Restraining    Orders,    Preliminary 

and   Perpetual    Injunctions,   795. 
ff.  Scope  of  Review,  797. 

gg.  Appeal    to     Supreme     Court    of    the    United 
States,  797. 

(7)  Criminal   Prosecutions,   798. 

c.  Attendance  of  Witnesses  and  Production  of  Evidence,  800. 

d.  Nature  of  Inquiry  and  Considerations  Involved,  800. 

e.  Parties  to  Proceedings,   800. 

f.  Weight  and  Conclusiveness  of  Findings  of  Commission,  800. 

Pure  Food  and  Drugs  Act,  800. 

A.  General  Purpose  and  Intent  of  Act,  800. 

B.  Definitions  and  Scope  of  Act,  800. 

C.  Enforcement  of  Act,  801. 

1.  Proceedings  in  Rem,  801. 

a.  To  What  Shipments  Applicable,  801. 

696 


Vol.  VII. 


INTERSTATE,  ETC.,  COMMERCE. 


281-283 


b.  When    Shipment    Becomes    Subject    to    Seizure;     When    No 

Longer  Subject  to  Seizure,  801. 

c.  Costs,  801. 

2.  Criminal  Prosecutions,  802. 

a.  Persons  Liable  to   Prosecution,  802. 

b.  Preliminary  Analysis,   Notice  and  Hearing;    Duty  to  Prose- 

cute ;     Independent   Prosecutions,   802. 

CROSS  REFERENCES. 

See  the  title  Interstate  and  Foreign  Commerce,  vol.  7,  p.  269,  and  refer- 
ences there  given.  " 

In  addition,  see  ante,  Animals,  p.  27;  Appeal  and  Error,  p.  34;  Bridges,  p. 
211;  Carriers,  p.  216;  Constitutional  Law,  p.  264;  Corporations,  p.  381; 
Due  Process  of  Law^,  p.  475;  Foreign  Corporations,  p.  584;  Game  and 
Game  Lav^s,  p.  605;  Health,  p.  617;  Injunctions,  p.  657;  Inspection  Laws, 
p.  670;  Insurance,  p.  674;  post,  Intoxicating  Liquors;  Monopolies  anl 
Corporate  Trusts;  Navigable  Waters;  Pilots;  Police  Power;  Railroads; 
Revenue  Laws;  Ships  and  Shipping;  Streets  and  Highways;  Taxation; 
Telegraphs  and  Telephones. 

L  What  Constitutes. 

A.  Interstate  and  Foreign  Commerce — 1.  Definitions  and  Nature — a. 
Couiinercc  Defined  Generally. — See  note  1. 

b.    Interstate  and  Foreign  Commerce  Defined. — See  notes  2,  11. 


281-1.     Commerce    defined    generally. — 

The  term  "commerce"  comprehends 
more  than  the  mere  exchange  of  goods. 
It  embraces  commercial  intercourse  in  all 
its  branches,  including  transportation  of 
passengers  and  property  by  common  car- 
riers, whether  carried  on  by  water  or  by 
land.  Second        Employers'      Liability 

Cases.  223  U.  S.  1,  56  L.  Ed.  327,  32  S. 
Ct.    169. 

281-2.  Interstate  commerce  defined — 
Commerce  affecting  more  than  one  state. 
— Interstate  commerce  must  be  such  as 
takes  place  between  states,  as  differen- 
tiated from  commerce  wholly  within  a 
state.  It  must  have  reference  to  inter- 
state trade  or  dealing;  and  if  the  regula- 
tion is  not  such,  and  comprehends  only 
commerce  which  is  internal,  the  state  may 
legislate  concerning  it.  In  each  case  the 
recurring  question  is,  on  which  side  of 
the  line  does  the  commerce  under  inves- 
tigation fall?  Ware  v.  Mobile  County, 
209  U.   S.  405,  52   L.   Ed.  855,  28   S.  Ct.  526. 

The  phrase  "among  the  several  states" 
marks  the  distinction,  for  the  purpose  of 
governmental  regulation,  between  com- 
merce which  concerns  two  or  more  states 
and  commerce  which  is  confined  to  a 
single  state  and  does  not  affect  _  other 
states,  the  power  to  regulate  the  former 
being  conferred  upon  congress  and  the 
regulation  of  the  latter  remaining  with  the 
states  severally.  Second  Employers'  Lia- 
bility Cases.  223  U.  S.  1,  56  L.  Ed.  327, 
32    S.    Ct.   169. 

"It  is  not  intended  to  say  that  these 
words   comprehend   that   commerce   which 


is  completely  internal,  which  is  carried 
on  between  man  and  man  in  a  state,  or 
between  different  parts  of  the  same  state, 
and  which  does  not  extend  to  or  affect 
other  states.  Such  a  power  would  be 
inconvenient  and  is  certainly  unnecessary. 
Comprehensive  as  the  word  'among'  is, 
it  may  very  properly  be  restricted  to  that 
commerce  which  concerns  more  states 
than  one  *  *  *.  The  genius  and  char- 
acter of  the  whole  government  seem  to 
be,  that  its  action  is  to  be  applied  to  all 
the  external  concerns  of  the  nation,  and 
to  those  internal  concerns  which  affect 
the  states  generally;  but  not  to  those 
which  are  completely  within  a  particular 
state,  which  do  not  affect  other  states, 
and  with  which  it  is  not  necessary  to  in- 
terfere for  the  purpose  of  executing  some 
of  the  general  powers  of  the  government." 
The  Employers'  Liability  Cases,  207  U. 
S.  463,  52  L.   Ed.  297,  307,  28  S.   Ct.   141. 

Practical  and  not  technical. — "Com- 
merce among  the  states  is  not  a  technical 
legal  conception,  but  a  practical  one, 
drawn  from  the  course  of  business.''  Sav- 
age V.  Jones.  225  U.  S.  501,  56  L.  Ed.  1182, 
1189,  32  S.  Ct.  715;  Swift  &  Co.  v.  United 
States,  196  U.  S.  375,  398,  49  L.  Ed.  518, 
25  S.  Ct.  276;  Rearick  v.  Pennsylvania, 
203  U.  S.  507,  512,  51  L.  Ed.  295,  27  S. 
Ct.   159. 

283-11.  Comprehends  traffic,  intercourse, 
trade,  navigation,  etc. — The  term  "com- 
merce" comprehends  more  than  the  mere 
exchange  of  goods.  It  embraces  commer- 
cial intercourse  in  all  its  branches,  in- 
cluding transportation   of  passengers   and 


697 


285-291 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  YU. 


2.  Subjects — b.  Lazvful  Subjects  of  Owiiersliip  and  Property. — See  note  25. 

c.  Particular  Articles — (2)   Intoxicating  Liquors. — See  note  28. 

(6)  Waters  of  Flozving  Stream. — A  riparian  owner  can  not  enlarge  his  other- 
wise limited  and  qualified  right  to  use  the  waters  of  the  stream  by  his  desire  to 
divert  them  into  another  state  for  use  therein ;  and  it  is  competent  for  the  state 
to  prohibit  such  diversion  notwithstanding  the  fact  that  such  owner  has  con- 
tracted to  dispose  of  the  water  in  such  other  state  for  use  or  power  therein.^i^ 

(7)  Natural  Gas  and  Oil. — Natural  gas,  when  reduced  to  possession,  is  a 
commodity  which  belongs  to  the  owner  of  the  land,  and  may  be  the  subject  of 
both  intrastate  and  interstate  commerce;  and  a  state  law  which  prohibits  the 
construction  of  pipe  lines  for  natural  gas,  or  the  transportation  of  the  gas  by 
such  lines  except  by  domestic  corporations  and  only  between  points  within  the 
state,  with  a  strict  prohibition  against  transporting,  selling  or  in  anywise  furnish- 
ing gas  for  use  beyond  the  limits  of  the  state,  unconstitutionally  interferes  with 
interstate  commerce  and  the^  right  to  engage  therein,  and  can  not  be  justified  as 
an  exercise  of  the  police  power  of  the  state  to  conserve  its  natural  resources. ^^'' 

3.  Transactions  Constituting — a.  Transportation  of  Freight  and  Passen- 
gers.— See  ante,  "Interstate  and  Foreign  Commerce  Defined,"  I,  A,  1,  b. 

d.  Purchase  and  Sale  of  Goods. — See  notes  60,  67. 


property  by  common  carriers,  whether 
carried  on  by  water  or  by  land.  Second 
Employers'  Liability  Cases,  223  U.  S.  1, 
56   L.    Ed.    327,   32    S.    Ct.    169. 

Commerce  among  the  several  states 
comprehends  traffic,  intercourse,  trade, 
navigation,  communication,  the  transit  of 
persons,  and  the  transmission  of  mes- 
sages by  telegraph,  indeed,  every  species 
of  commercial  intercourse  among  the  sev- 
eral states,  but  not  that  commerce  "com- 
pletely internal,  which  is  carried  on  be- 
tween man  and  man,  in  a  state,  or  between 
different  parts  of  the  same  state,  and 
which  does  not  extend  to  or  affect  other 
states."  Adair  v.  United  States,  208  U.  S. 
161,    52    L.    Ed.   436,   443,  28   S.    Ct.   277. 

Judge  Sanborn,  in  Butler  Bros.  Shoe  Co. 
V.  United  States  Rubber  Co.,  84  C.  C.  A. 
167,  183,  156  Fed.  1,  17,  that  "all  inter- 
state commerce  is  not  sales  of  goods. 
Importation  into  one  state  from  another 
is  the  indispensable  element,  the  test,  of 
interstate  commerce;  and  every  negotia- 
tion, contract,  trade,  and  dealing  between 
citizens  of  different  states,  which  contem- 
plates and  causes  such  importation, 
whether  it  be  of  goods,  persons,  or  in- 
formation, is  a  transaction  of  interstate 
commerce."  International  Textbook  Co. 
V.  Pigg,  217  U.  S.  91,  54  L.  Ed.  678,  30 
S.  Ct.  481,  followed  in  International  Text- 
book Co.  V.  Peterson,  218  U.  S.  664,  54  L. 
Ed.    1201,    31    S.    Ct.    225. 

Whether  gratuitous  or  otherwise. — The 
power  of  congress  over  interstate  trans- 
portation embraces  all  manner  of  carriage 
whether  gratuitous  or  otherwise.  Ameri- 
can Exp.  Co.  V.  United  States,  212  U.  S. 
522,  53  L.  Ed.  635,  29  S.  Ct.  315;  United 
States  V.  New  York,  etc.,  R.  Co.,  212  U. 
S.   509,  53   L.   Ed.  629,  29  S.  Ct.  313. 


285-25.  Power  to  determine  what  shall 
be  subjects  of  commerce. — See  post,  "Ex- 
clusion of  Imports — Establishment  of 
Standards,"  II,  A,  1,  b,   (3),   (b),  hh. 

285-28.  Intoxicating  liquors. — Liquor, 
however  obnoxious  and  hurtful  it  may  be 
in  the  judgment  of  many,  is  a  recognized 
article  of  commerce.  Adams  Exp.  Co.  v. 
Commonwealth,  214  U.  S.  218,  53  L.  Ed. 
972,  29  S.  Ct.  633;  Thurlow  V.  Massa- 
chusetts, 5  How.  504,  577,  12  L.  Ed.  258; 
Leisy  V.  Hardin,  135  U.  S.  100,  110,  34  L. 
Ed.  128,  10  S.  Ct.  681;  Louisville,  etc.,  R. 
Co.  V.  Cook  Brewing  Co.,  223  U.  S.  70, 
56    L.    Ed.    355,    32    S.    Ct.    189. 

285-31a.  Waters  of  flowing  stream. — 
Hudson  County,  etc.,  Co.  v.  McCarter, 
209  U.  S.  349,  52  L.  Ed.  828,  28  S.  Ct. 
529. 

285-31b.  Natural  gas  and  oil. — West  v. 
Kansas  Natural  Gas  Co.,  221  U.  S.  229,  55 
L.    Ed.   716,   31    S.    Ct.   564. 

291-60.  Purchase  and  sale  of  goods. — 
Where  the  complainant  was  engaged  in 
dealing  with  purchasers  in  another  state, 
and  his  product  was  manufactured  in 
Minnesota  and  was,  in  pursuance  of  his 
contracts  of  sale,  to  be  delivered  to  car- 
riers for  transportation  to  the  purchasers 
in  Indiana,  this  was  interstate  commerce, 
in  the  freedom  of  which  from  any  uncon- 
stitutional burden  the  complainant  had  a 
direct  interest  even  though  his  sales  were 
made  at  Minneapolis,  the  goods  "to  be 
delivered  free  on  board  of  cars"  at  that 
point,  "and  delivered  to  purchasers  and 
consumers  within  the  state  of  Indiana  in 
the  original,  unbroken  packages,  freight 
being  paid  by  the  consumers  and  pur- 
chasers." Savage  v.  Jones,  225  U.  S.  501. 
520,  56  L.  Ed.  1182,  32  S.  Ct.  715,  followed 


698 


Vol.  VII. 


INTERSTATE,  ETC.,  COMMERCE. 


291-295 


h.  Grain  Warehouses  and  Elevators. — The  long-mooted  question  as  to  whether 
elevation  was  such  a  part  of  transportation  as  to  bring  it  within  the  jurisdiction 
of  the  interstate  commerce  commission  was  answered  bv  the  Act  of  June  29, 
1906  (34  Stat,  at  L.  584,  590,  chap.  3591,  U.  S.  Comp.  Stat.  Supp.  1909.  p'. 
1150),  in  which  congress  declared  that  the  term  "'transportation'  shall  include 

*  *    *    all    *     *    *     facilities  of  shipment,    =i=     *     *    irrespective  of  ownership, 

*  *  *  and  all  services  in  connection  with  the  *  *  *  elevation  and  transfer 
in  transit  *  *  *  and  handling  of  property  transported."  Carriers  were  re- 
quired "to  provide  and  furnish  such  transportation  upon  reasonable  request 
therefor.'"^*'''  The  act  recognized  that  the  shipper  himself  might  own  the  eleva- 
tor or  other  facility  included  within  the  definition  of  transportation.  For  §  4 
(34  Stat,  at  L.  590,  chap.  3591,  U.  S.  Comp.  Stat.  Supp.  1909,  p.  1159)  provides 
that  "if  the  owner  *  *  -^  renders  any  service  connected  with  such  transporta- 
tion, or  furnishes  any  instrumentality  used  therein,  the  charge  and  allowance 
therefor  shall  be  no  more  than  is  just  and  reasonable,"'  the  commission  being 
authorized  to  determine  wdiat  is  reasonable.'''^'' 

j.  Telegraphic  Comniunicaiions. — See  note  90. 


in  Standard  Stock  Food  Co.  v.  Wright, 
225  U.  S.  540.  56  L.  Ed.  1197,  32  S.  Ct. 
784. 

It  clearly  appears  from  the  bill  that  the 
complainant  was  engaged  in  dealing  with 
purchasers  in  another  state.  His  product 
manufactured  in  Minnesota  was,  in  pur- 
suance of  his  contracts  of  sale,  to  be  de- 
livered to  carriers  for  transportation  to 
the  purchasers  in  Indiana.  This  was  in- 
terstate commerce,  in  the  freedom  of 
which  from  any  unconstitutional  burden 
the  complainant  had  a  direct  interest. 
The  protection  accorded  to  this  com- 
merce by  the  federal  constitution  ex- 
tended to  the  sale  by  the  receiver  of 
goods  in  the  original  packages.  Savage 
V.  Jones,  225  U.  S.  501,  56  L.  Ed.  1182, 
1189,  32  S.  Ct.  715;  Leisy  v.  Hardin,  135 
U.  S.  100,  34  L.  Ed.  128,  10  S.  Ct.  681;  In 
re  Rahrer,  140  U.  S.  545,  559,  560,  35  L. 
Ed.    572,    11    S.    Ct.   865. 

291-67.  Right  to  sell  through  agent- 
Local  dealer  in  automobiles  held  not  to 
be  agent  for  foreign  manufacturer. — A 
state  does  not  tax  interstate  transactions 
by  imposing  a  tax  upon  a  doinestic  cor- 
poration selling  within  a  designated  ter- 
ritory in  the  state  automobiles  built  by  a 
foreign  corporation  under  an  arrangement 
by  which  the  latter  agreed  to  build  for 
and  sell  to  the  former,  for  cash,  at  a  spec- 
ified less  than  list  price,  deliveries  to  be 
made  as  soon  as  practicable  after  orders 
should  be  received,  the  domestic  corpora- 
tion customarily  making  payment  through 
drafts  attached  to  the  bills  of  lading,  and 
there  being  nothing  connecting  the  ulti- 
mate buyer  with  the  manufacturer  other 
than  a  warranty  direct  from  manufacturer 
to  buyer,  and  such  buyer's  agreement  "to 
pay  the  list  price  f.  o.  b.  factory,"  since 
such  sales  are  not  interstate  ones;  the 
relation  of  principal  and  agent  between 
the  foreign  and  domestic  corporations  not 
existing  so  far  as  the  buyer  is  concerned. 


Banker  Bros.  Co.  v.  Pennsylvania,  222  U. 
S.  210,  56  L.  Ed.  168,  32  S.  Ct.  38,  affirm- 
ing judgment.  Commonwealth  v.  Banker 
Bros.  Co.,  38  Pa.  Super.  Ct.  101. 

293-76a.  Grain  warehouses  and  eleva- 
tors.— Union  Pac.  R.  Co.  v.  Updike  Grain 
Co.,  222  U.  S.  215,  56  L.  Ed.  171,  32  S.  Ct. 
39;  Interstate  Commerce  Comm.  v.  Dififen- 
baugh,  222  U.  S.  42,  56  L.  Ed.  83,  32  S. 
Ct.  22. 

293-76b.  Elevators  owned  by  ship- 
pers.—Union  Pac.  R.  Co.  V.  Updike 
Grain  Co.,  222  U.  S.  215,  56  L.  Ed.  171,  32 
S.  Ct.  39. 

295-90.  Telegraphic  communications. — 
That  companies  engaged  in  the  telegraph 
business,  whose  lines  extend  from  one 
state  to  another,  are  engaged  in  interstate 
commerce,  and  that  messages  passing 
from,  one  state  to  another  constitute  such 
commerce,  is  indisputable.  Western 
Union  Tel.  Co.  v.  Crovo,  220  U.  S.  364. 
55  L.  Ed.  498,  31  S.  Ct.  399:  Western 
Union  Tel.  Co.  v.  Commercial  Milling 
Co.,  218  U.  S.  406,  54  L.  Ed.  1088,  31  S. 
Ct.  59;  Telegraph  Co.  v.  Texas,  105  U.  S. 
460,  464,  26  L.  Ed.  1067;  Western  Union 
Tel.  Co.  V.  Pendleton,  122  U.  S.  347,  356, 

30  L.    Ed.   1187,   7   S.    Ct.   1126. 

Such  companies  and  such  messages 
come,  therefore,  under  the  regulating 
power  of  congress,  and  where  a  statute, 
as  applied  in  the  state  courts,  is  to  be 
construed  as  a  regulation  of  commerce 
between  the  states,  it  is  in  excess  of  the 
power  of  the  state.  Western  Union  Tel. 
Co.  V.  Crovo,  220  U.  S.  364,  55  L.  Ed.  498, 

31  S.  Ct.  399;  Telegraph  Co.  v.  Texas.  105 
U.  S.  460,  26  L.  Ed.  1067;  Western  Union 
Tel.  Co".  V.  Pendleton,  122  U.  S.  347,  30  L. 
Ed.  1187,  7  S.  Ct.  1126;  Western  Union 
Tel.  Co.  V.  James,  162  U.  S.  650,  40  L.  Ed. 
1105,  16  S.  Ct.  934;  Western  Union  Tel. 
Co.  V.  Commercial  Milling  Co.,  218  U.  S. 
406,  416,  54  L.  Ed.  1088,  31  S.  Ct.  59. 


699 


295 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


k.  Banker  Fonvarding  Deposits  to  Foreign  Countries. — A  private  banker  whose 
business  consists  chiefly  in  receiving  deposits  in  small  sums  from  time  to  time 
until  they  reach  an  amount  sufficient  to  be  sent  to  other  states  and  foreign 
countries  is  not  so  exclusively  engaged  in  foreign  and  interstate  commerce  as 
to  exempt  him  from  the  power  of  the  state  to  impose  license  and  occupation 
taxes.^^^ 

1.  Contracts  Incidentally  Affecting  Commerce ;  Brokerage  and  Commission 
Contracts. — Contracts  between  citizens  of  different  states  are  not  the  subjects 
of  interstate  commerce,  simply  because  they  are  negotiated  between  citizens  of 
different  states,  or  by  the  agent  of  a  company  in  another  state,  where  the  con- 
tract itself  is  to  be  completed  and  carried  out  wholly  within  the  borders  of  a 
state,  although  such  contracts  incidentally  affect  interstate  trade.'""' 

Brokerage  and  Commission;  Orders  for  Future  Delivery. — The  business 
of  taking  orders  on  commission  for  the  purchase  and  sale  of  grain  and  cotton  for 
future  delivery,  and  transmitting  them  to  other  states,  is  not  interstate  commerce, 
so  as  to  be  exempt  from  state  taxation,  where,  in  those  cases  in  which  contracts 
for  purchases  for  future  delivery  result  in  an  actual  delivery,  the  property  is 
bought  in  the  state  to  which  the  orders  are  transmitted,  and  there  held  for  the 
purchaser,  and  in  those  cases  in  which  there  is  a  delivery  upon  a  contract  of 
sale  made  by  the  broker,  the  seller  is  at  liberty  to  acquire  the  property  in  the 
market  where  delivery  is  required  or  elsewhere. ^'^'^ 


295-90a.  Banker  forwarding  deposits  to 
foreign  countries. — Engel  v.  O'Malley,  219 
U.   S.   128,   55   L.   Ed.   128,   31    S.   Ct.   191. 

Interstate  commerce  is  not  unconstitu- 
tionally regulated  by  the  requirement  of 
Laws  N.  Y.  1910,  c.  348.  that  a  license 
from  the  comptroller  be  obtained  by  in- 
dividuals or  partnerships  desiring  to  en- 
gage in  the  business  of  private  banking, 
as  applied  to  one  whose  business  chiefly 
consists  in  receiving  deposits  in  very 
small  sums  from  time  to  time  until  they 
reach  an  amount  sufficient  to  be  sent  to 
other  states  and  foreign  countries.  Engel 
V.  O'Malley,  219  U.  S.  128,  55  L.  Ed.  128, 
31  S.  Ct.  191,  affirming  decree  (C.  C. 
1910),   182   F.   365. 

295-90b.  Contracts  incidentally  affect- 
ing commerce. — Ware  v.  Mobile  County, 
209  U.  S.  405,  411,  52  L.  Ed.  855,  28  S.  Ct. 
526. 

295-90C.  Brokerage  and  commission — 
Orders  for  future  delivery. — Ware  r.  Mo- 
bile County,  209  U.  S.  405,  52  L.  Ed.  855, 
28  S.  Ct.  526.  affirming  Ware  v.  Mobile 
County,   146   Ala.   163,   41   So.   163. 

The  appellants  are  brokers  who  take 
orders  and  transmit  them  to  other  states 
for  the  purchase  and  sale  of  grain  or  cot- 
ton upon  speculation.  They  are,  in  no 
just  sense,  common  carriers  of  messages, 
as  are  the  telegraph  companies.  Eor  that 
part  of  the  transactions,  merely  specula- 
tive and  followed  by  no  actual  delivery, 
it  can  not  be  fairly  contended  that  such 
contracts  are  the  subject  of  interstate 
commerce.  Ware  v.  Mobile  County,  209 
U.  S.  405,  412,  52  L.  Ed.  855,  28  S.  Ct.  526. 

Concerning  such  of  the  contracts  for 
purchases  for  future  delivery,  as  result 
in  actual  delivery  of  the  grain  or  cotton, 
the    stipulated   facts   .show   that  when   the 


orders  transmitted  are  received  in  the 
foreign  state  the  property  is  bought  in 
that  state  and  there  held  for  the  pur- 
chaser. The  transaction  was  thus  closed 
by  a  contract  completed  and  executed  in 
the  foreign  state,  although  the  orders 
were  received  from  another  state.  When 
the  delivery  was  upon  a  contract  of  sale 
made  by  the  broker,  the  seller  was  at 
liberty  to  acquire  the  cotton  in  the  mar- 
ket where  the  delivery  was  required  or 
elsewhere.  He  did  not  contract  to  ship 
it  from  one  state  to  the  place  of  delivery 
in  another  state.  And  though  it  is  stipu- 
lated that  shipments  were  made  from 
Alabama  to  the  foreign  state  in  some  in- 
stances, that  was  not  because  of  any  con- 
tractual obligation  so  to  do.  In  neither 
class  of  contracts,  for  sale  or  purchase, 
was  there  necessarily  any  movement  of 
commodities  in  interstate  traffic,  because 
of  the  contracts  made  by  the  brokers. 
These  contracts  are  not,  therefore,  the 
subjects  of  interstate  comm.erce.  any  more 
than  in  the  insurance  cases,  where  the 
policies  are  ordered  and  delivered  in  an- 
other state  than  that  of  the  residence  and 
office  of  the  company.  The  delivery,  when 
one  was  made,  was  not  because  of  anv 
contract  obliging  an  interstate  shipment, 
and  the  fact  that  the  purchaser 
might  thereafter  transmit  the  subject 
matter  of  purchase  by  means  of  interstate 
carriage  did  not  make  the  contracts  as 
made  and  executed  the  subjects  of  inter- 
state commerce.  Ware  t'.  Mobile  County, 
209  U.  S.  405,  413,  52  L.  Ed.  855,  28  S. 
Ct.   526. 

Requiring  record  or  memorandum  of 
transaction — Where  articles  in  actual 
course  of  transportation. — Interstate  com- 
merce  is   not  unconstitutionally  regulated 


roo 


Vol.  MI. 


IXTBRSTATE,,  ETC.,  COMMERCE. 


295 


m.  Counnnnication  through  the  Mails:  Correspondence  Schools. — If  inter- 
course between  persons  in  different  states  by  means  of  telegraphic  messages 
conveying  intelligence  or  information  is  commerce  among  the  states,  which  no 
state  may  directly  burden  or  unnecessarily  encumber,  it  can  not  be  doubted  that 
intercourse  or  communication  between  persons  in  different  states  by  means  of 
correspondence  through  the  mails  is  commerce  among  the  states  within  the  mean- 
ing of  the  constitution,  especially  where  such  intercourse  and  communication 
really  relate  to  matters  of  regular,  continuous  business,  and  to  the  making  of 
contracts  and  transportation  of  books,  papers,  etc.,  appertaining  to  such  busi- 


ness.^o"^ 

Correspondence  Schools  Doing  Interstate  Business. — Commerce  is  con- 
ducted among  the  states,  within  the  meaning  of  the  federal  constitution,  by  a 
corporation  engaged  in  imparting  instruction  by  correspondence,  whose  business 
involves  the  solicitation  of  students  in  other  states  by  local  agents,  who  are  also 
to  collect  and  forward  to  the  home  office  the  tuition  fees,  and  the  systematic  in- 
tercourse between  the  corporation  and  its  scholars  and  agents,  wherever  situ- 
ated, and  the  transportation  of  the  needful  books,  apparatus,  and  papers. ^"^® 

4.  Protection  of  Commerce  Clause — a.  When  Protection  Attaches. — A  man 
can  not  acquire  a  right  to  property  protected  by  the  commerce  clause  of  the 
federal  constitution  merely  by  reason  of  his  desire  to  use  it  in  commerce  among 
the  states.  Neither  can  he  enlarge  his  otherwise  limited  and  qualified  right  to 
the  same  end.^^a 


by  Act  }^larch  8,  190T  (Acts  Mo.  1907,  p. 
392),  under  which  the  keeping  of  a  place 
Avhere  corporate  stocks  and  bonds,  and 
grains,  provisions,  and  other  commodities 
are  bought  and  sold,  but  not  paid  for  and 
delivered  at  the  time,  is  made  criminal 
unless  a  complete  record  rif  the  transac- 
tion, including  a  minute  of  the  time  of  de- 
livery, is  made  in  a  book  kept  for  the  pur- 
pose, and  the  purchaser  is  given  a  memo- 
randum of  the  sale,  properly  stamped, 
although  the  grains,  provisions,  and  other 
commodities  sold  may  be,  at  the  time  of 
sale,  in  the  course  of  transportation  as 
articles  of  interstate  commerce.  Brodnax 
z.  Missouri,  219  U.  S.  285,  5.5  L.  Ed.  219, 
31  S.  Ct.  238,  affirming  judgment  in  State 
V.  Brodnax  (1910),  128  S.  W.  177,  228 
Mo.  25. 

295-90d.  Communication  through  mails. 
— International  Textl^ook  Co.  7'.  Pigg,  217 
U.  S.  91,  5-1  L.  Ed.  678,  30  S.  Ct.  481;  In- 
ternational Textbook  Co.  v.  Peterson.  218 
U.   S.  mi.  54  L.  Ed.  1201,  31  S.  Ct.  225. 

295-90e.  Correspondence  schools  doing 
interstate  business. — International  Text- 
book Co.  z:  Pigg.  217  U.  S.  91,  54  L.  Ed. 
G78,  30  S.  Ct.  481.  followed  in  Interna- 
tional Textbook  Co.  z:  Peterson,  218  U. 
S.   664,  54  L.   Ed.   1201,  31   S.   Ct.  225. 

"The  business  in  which  the  Interna- 
tional Textbook  Company  is  engaged  is 
of  a  somewhat  exceptional  character,  but, 
in  our  judgment,  it  was,  in  its  essential 
characteristics,  commerce  among  the 
states  within  the  meaning  of  the  constitu- 
tion of  the  United  States.  It  involved, 
already  suggested,  regular  and  practically 
continuous  intercourse  between  the 
Textbook    Company,   located   in    Pennsyl- 


vania, and  its  scholars  and  agents  in  Kan- 
sas and  other  states.  That  intercourse 
was  conducted  by  means  of  correspon- 
dence through  the  mails  with  such  agents 
and  scholars.  While  this  mode  of  im- 
parting and  acquiring  an  education  may 
not  be  such  as  is  commonly  adopted  in 
this  country,  it  is  a  lawful  mode  to  ac- 
complish the  valuable  purpose  the  parties 
have  in  view.  More  than  that;  this  mode, 
looking  at  the  contracts  between  the 
Textbook  Company  and  its  scholars,  in- 
volved the  transportation  from  the  state 
where  the  school  is  located  to  the  state 
in  which  the  scholar  resides,  of  books, 
apparatus,  and  papers,  useful  or  necessary 
in  the  particular  course  of  study  the 
scholar  is  pursuing,  and  in  respect  of 
which  he  is  entitled  from  time  to  time,  by 
virtue  of  his  contract,  to  information  and 
direction.  Intercourse  of  that  kind,  be- 
tween parties  in  different  states,  particu- 
larly when  it  is  in  execution  of  a  valid 
contract  between  them,  is  as  much  inter- 
course in  the  constitutional  sense,  as  in- 
tercourse by  means  of  the  telegraph,  'a 
new  species  of  commerce,'  to  use  the 
words  of  this  court  jn  Pensacola  Tel.  Co. 
V.  Western  Union  Tel.  Co.,  96  U.  S.  1,  9, 
24  L.  Ed.  708,  710."  International  Text- 
book Co.  V.  Pigg,  217  U.  S.  91,  54  L.  Ed. 
678,  30  S.  Ct.  481,  followed  in  Interna- 
tional Textbook  Co.  v.  Peterson.  218  U. 
S.   664,   54  L.   Ed.  1201,  31    S.  Ct.  225. 

295-92a.  When  protection  attaches- 
Mere  intent  or  desire  to  use  property  in 
commerce  not  sufficient. — Hudson  County, 
etc.,  Co.  z:  McCarter.  209  U.  S.  349.  52  L. 
Ed.  828,  28  S.  Ct.  529.     See,  also,  Geer  v. 


701 


295-297 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


When  Property  Begins  to  Move — Through  Billing  Test.— In  determining 
whether  a  shipment  is  or  is  not  an  interstate  shipment,  the  test  of  through  bilHng 
is  not  necessarily  conclusive.  That  is  to  say,  the  fact  that  the  shipment  was  sent 
from  a  point  within  the  state  to  the  state  line  on  one  bill  of  lading  there  to  be 
reshipped  upon  another  bill  of  lading  is  not  conclusive  of  the  fact  that  it  is  not 
an  interstate  or  foreign  shipment."-^-" 

b.  When  Protection  Ceases — (Ij  In  General. — Until  the  transportation  is  com- 
pleted by  delivery  to  the  consignee,  the  property  does  not  become  subject  to 
state  regulation  restraining  its  sale  or  disposition. ^*^^ 


Connecticut,  IGl   U.  S.  519,  40  L.   Ed.  793, 
16  S.  Ct.  600. 

Same — Desire  or  intent  to  divert  wa1;er 
for  use  in  another  state. — For  example,  it 
is  competent  for  the  state  to  prohibit  the 
diversion  of  the  waters  of  a  flowing 
stream  into  another  state  for  use  therein, 
and  the  fact  that  riparian  owner  desires 
or  has  contracted  to  divert  such  water 
and  transport  it  for  use  in  another  state 
gives  him  no  right  protected  by  the  com- 
merce clause  of  the  constitution.  Hudson 
County,  etc.,  Co.  v.  AlcCarter,  209  U.  S. 
349,  52   L.   Ed.  828,  28  S.  Ct.  529. 

Same — Gas  and  oil. — It  has  been  held, 
however,  that  natural  gas  when  reduced 
to  possession  is  a  legitimate  article  of 
intrastate  and  interstate  commerce,  and 
that  the  state  can  not,  while  permitting  its 
use  within  the  state,  and  to  that  end  ex- 
tending to  domestic  corporations  the  use 
of  its  highways  for  the  purpose  of  laying 
pipe  lines  to  distribute  it  within  the  state, 
forbid  its  transportation  beyond  state 
limits  and  deny  to  foreign  corporations 
the  like  privilege  of  using  the  highways 
of  the  state  for  the  purpose  of  laying  pipe 
lines  for  transporting  the  gas  beyond  the 
state.  West  v.  Kansas  Natural  Gas  Co., 
221  U.  S.  229,  55  L.  Ed.  716,  31  S.  Ct. 
564. 

295-92b.  When  property  begins  to  move 
— Through  billing  test. — Railroad  Comm. 
V.  Worthington,  225  U.  S.  101,  56  L.  Ed. 
1004,  32  S.  Ct.  653;  Southern  Pac,  etc.,  Co. 
V.  Interstate  Commerce  Comm.,  219  U. 
S.  498,  55   L.   Ed.  310,  31   S.   Ct.  279. 

For  example  where  a  shipper  bought 
cotton  seed  cakes  in  various  points  in 
Texas  with  the  intent  to  export  the  same, 
and  shipped  them  to  himself  at  the  port 
of  Galveston,  where  they  were  prepared 
for  export,  it  was  held  that  such  trans- 
portation was  within,  the  jurisdiction  of 
the  interstate  commerce  commission. 
Southern  Pac,  etc.,  Co.  v.  Interstate  Com- 
merce Comm.,  219  U.  S.  498,  55  L.  Ed. 
310,    31    S.    Ct.   279. 

It  makes  no  difference,  therefore,  that 
the  shipments  of  the  products  were  not 
made  on  through  bills  of  lading,  or 
whether  their  initial  point  was  Galveston 
or  some  other  place  in  Texas.  They  were 
all  destined  for  export,  and  by  their  de- 
livery to  the  Galveston,  Harrisburg  &  San 
Antonio  Railway  they  must  be  considered 


as  having  been  delivered  to  a  carrier  for 
transportation  to  their  foreign  destina- 
tion, the  terminal  company  being  a  part 
of  the  railway  for  such  purpose.  The 
case,  therefore,  comes  under  Coe  v.  Er- 
rol,  116  U.  S.  517,  29  L.  Ed.  715,  6  S.  Ct. 
475,  where  it  is  said  that  goods  are  in 
interstate,  and  necessarily  as  well  in  for- 
eign, commerce  when  they  have  "actually 
started  in  the  course  of  transportation  to 
another  state  or  been  delivered  to  a  car- 
rier for  transportation.""  Southern  Pac, 
etc.,  Co.  V.  Interstate  Commerce  Comm., 
219  U.  S.  498,  55  L.  Ed.  310,  31  S.  Ct. 
279. 

And  again  it  was  held  that  wdiere  coal 
was  Inlled  from  an  Ohio  coal  field  to  Ohio 
ports  on  Lake  Erie,  there  to  be  loaded 
upon  vessels  and  transported  to  points 
without  the  state,  that  the  whole  carriage 
from  the  time  it  left  the  mines  was  in- 
terstate commerce  and  not  within  the 
power  of  the  state  railroad  commission 
to  regulate.  Railroad  Comm.  z\  Worth- 
ington. 225  U.  S.  101,  56  L.  Ed.  1004,  32 
S.  Ct.  653. 

On  the  other  hand,  where  corn  was 
shipped  from  Hudson,  South  Dakota  upon 
a  bill  of  lading  to  Texarkana,  Texas,  and 
afterwards,  some  five  days  later,  it  was 
shipped  upon  another  bill  of  lading  from 
Texarkana  to  Goldthwaite,  both  being 
points  in  the  state  of  Texas,  it  was  held 
that  the  latter  shipment  was  a  new  and 
independent  intrastate  shipment,  and  that 
it  was  immaterial  that  the  shipper  intended 
from  the  beginning  to  reship  the  corn 
from  Texarkana  to  Goldthwaite.  Gulf, 
etc..  R.  Co.  V.  Texas,  204  U.  S.  403,  51  L. 
Ed.  540. 

So  it  has  been  held  that  oil  shipped 
from  Pennsylvania  and  Ohio,  and  destined 
ultimately  for  points  in  Arkansas,  Louisi- 
ana, and  ^klississippi,  is  not  property  in 
interstate  commerce,  so  as  to  be  exempt 
from  state  tax  or  inspection  laws  while 
it  is  held  at  a  distributing  point  main- 
tained by  the  shipper  in  Tennessee,  at 
which  point  such  oil  is  unloaded  from 
tank  cars  into  various  tanks,  barrels,  and 
other  receptacles,  and  from  which  it  is 
forwarded  to  its  final  destination.  Judg- 
ment (1906),  95  S.  W.  824,  117  Tenn.  82, 
affirmed.  General  Oil  Co.  v.  Grain,  209 
U.    S.   211.   52   L.   Ed.   754.   28    S.    Ct.  473. 

297-96a.    When  protection  of  commerce 


ro2 


Vol.  VII. 


IXTERSTATB,  ETC.,  COMMERCE. 


298-305 


Through  Billing  Test.— See  ante.  "When  Protection  Attaches,"  I,  A,  4,  a. 

Under  Pure  Food  and  Drugs  Act. — As  to  the  right  of  congress  to  pursue 
goods  shipped  in  violation  of  the  pure  food  and  drugs  act  even  after  they  have 
ceased  to  be  articles  of  commerce,  or,  in  other  words,  after  the  transportation 
has  ended,  see  post,  "Pure  Food  and  Drugs  Act,"  V,  et  seq. 

(2)   Original  Packages — (b)  Right  to  Sell  in  Original  Package. — See  note  2. 

(c)  Taxation.— SeQ  post.  "Original  Package  Rule,"  III,  B.  2,'j,  (2),  (b),  bb, 
(aa),  bbb. 

B.  Internal  or  Intrastate  Commerce. — See  ante.  "Interstate  and  Foreign 
Commerce  Dehned."  I.  A.  1.  b;  post,  "Internal  or  Intrastate  Commerce,"  II,  B, 
et  secj. 

C.  Commerce  with  Indian  Tribes. — See  post,  "Commerce  witli  Indian 
Tribes,"  II,  C,  et  seq. 

II.    Regulation  and  Control. 

A.  Interstate  and  Foreign  Commerce — 1.  Power  of  Coxgress — a.  In  Gen- 
eral—  (3  J  Application  of  Conmion-Lazu  Principles  in  Absotce  of  Statute. — See 
note  32. 

h.  Xature  and  E.vtcnt  of  Pozi'er — (I)  In  General — (a)  Poi<er  to  Regulate 
Defined. — See  note  34. 

(b)  Constitutional  Limitations. — Subject  Only  to  Limitations  in  Constitu- 
tion.— See  note  Z7 . 


clause    ceases — Delivery    to     consignee. — 

Louisville,  etc.,  R.  Co.  v.  Cook  Brewing 
Co.,  223  U.  S.  70,  56  L.  Ed.  355.  32  S.  Ct. 
189;  Adams  Exp.  Co.  v.  Commonwealth, 
214  U.  S.  218,  53  L.  Ed.  972,  29  S.  Ct.  633. 

298-2.  Right  to  sell  in  original  pack- 
age.— The  protection  accorded  to  inter- 
state commerce  by  the  federal  constitu- 
tion extends  to  the  sale  by  the  receiver 
of  the  goods  in  the  original  packages. 
Savage  v.  Jones,  225  U.  S.  501,  520.  56  L. 
Ed.  1182,  32  S.  Ct.  715,  followed  in  Stan- 
dard Stock  Food  Co.  v.  Wright.  225  U. 
S.  540,  56  L.  Ed.  1197,  32  S.  Ct.  784;  Burke 
V.  Wells.  208  U.  S.  14,  52  L.  Ed.  370,  374. 
28  S.  Ct.  193. 

304-32.  Application  of  common-law 
principles. — The  interstate  commerce  of 
the  constitution  does  not  constrain  the 
action  of  carriers,  but.  on  the  contrary, 
leaves  them  to  adopt  rules  and  regulations 
for  the  government  of  their  business, 
free  from  any  interference  except  by  con- 
gress. Such  rules  and  regulations,  of 
course,  must  be  reasonable,  but  whether 
they  be  such  can  not  depend  upon  a 
passenger  being  state  or  interstate.  Chiles 
V.  Chesapeake,  etc.,  R.  Co.,  218  U.  S.  71, 
54  L.  Ed.  936.  30  S.  Ct.  667. 

For  example,  congressional  inaction  is 
equivalent  to  a  declaration  that  a  carrier 
may,  by  its  regulations,  separate  white 
and  negro  interstate  passengers.  Chiles 
V.  Chesapeake,  etc.,  R.  Co.,  218  U.  8.  71, 
54  L.  Ed.  936,  30  S.  Ct.  667,  following 
principles  laid  down  in  Hall  v.  DeCuir, 
95  U.  S.  485.  24  L.  Ed.  547. 

304-34.  Power  to  regulate  defined — 
Power  to  prescribe  rules  by  which  com- 
merce  governed — What   constitutes   regu- 


lation.— "We  are  now  arrived  at  the  in- 
quiry, What  is  this  power?  It  is  the 
power  to  regulate;  that  is,  to  prescribe 
the  rule  by  which  commerce  is  to  be  gov- 
erned." The  Emplovers'  Liabilitv  Cases, 
207  U.  S.  463,   52   L.   Ed.  297,  28  S."  Ct.  141. 

"To  regulate,"  in  the  sense  intended, 
is  to  foster,  protect,  control,  and  restrain, 
with  appropriate  regard  for  the  welfare 
of  those  who  are  immediately  concerned 
and  of  the  public  at  large.  Second  Em- 
ployers' Liability  Cases,  223  U.  S.  1,  56 
L.  Ed.  327,  32  S.  Ct.  169. 

305-37.  Subject  only  to  limitations  in 
constitution. — The  power  granted  to  con- 
gress to  regulate  commerce  among  the 
stales  and  with  foreign  nations  is  com- 
plete in  itself,  and  is  unrestricted  except 
by  the  limitations  upon  its  authority  to 
be  found  in  the  constitution.  Louisville, 
etc..  R.  Co.  V.  Mottley.  219  U.  S.  467,  55 
L.  Ed.  297,  31  S.  Ct.  265;  Gibbons  v.  Og- 
den.  9  Wheat.  1,  6  L.  Ed.  23;  Brown  v. 
Maryland.  12  Wheat.  419,  6  L.  Ed.  678; 
Addyston  Pipe,  etc.,  Co.  v.  United  States, 
175  U.  S.  211.  229.  44  L.  Ed.  136,  143,  20 
S.  Ct.  96;  Scranton  v.  Wheeler,  179  U.  S. 
141,  163,  45  L.  Ed.  126,  21  S.  Ct.  48;  Chi- 
cago, etc.,  R.  Co.  V.  Drainage  Commr's, 
200  U.  S.  561,  50  L.  Ed.  596,  26  S.  Ct.  341; 
Union  Bridge  Co.  v.  United  States.  204  U. 
S.  364,  400,  51  L.  Ed.  523.  27  S.  Ct.  367; 
Atlantic,  etc..  R.  Co.  v.  Riverside  Mills, 
219  U.  S.  186.  202,  55  L.  Ed.  167,  31  S. 
Ct.   164. 

LTndoubtedly  the  United  States  is  a  gov- 
ernment of  limited  ar.d  delegated  powers, 
but  in  respect  of  those  powers  which 
have  been  expressly  delegated,  the  power 
to  regulate  commerce  between  the  states 


r03 


306 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


Limited  to  Matters  and  Things  Having  Some  Real  or  Substantial  Re- 
lation to  Such  Commerce. — This  power  over  commerce  among  the  states,  so 
conferred  upon  congress,  is  complete  in  itself,  extends  incidentally  to  every  in- 
strument and  agent  by  which  such  commerce  is  carried  on,  may  be  exerted  to  its 
utmost  extent  over  every  part  of  such  commerce,  and  is  subject  to  no  limitations 
save  such  as  are  prescribed  in  the  constitution.  But,  of  course,  it  does  not  ex- 
tend to  any  matter  or  thing  which  does  not  have  a  real  or  substantial  relation 
to  some  part  of  such  commerce.^^^  And  a  statute,  which  embraces  subjects 
within  the  authority  of  congress  to  regulate  commerce,  and  which  also  includes 
subjects  not  within  its  constitutional  power,  the  two  being  so  interblended  as  to 
be  incapable  of  separation,  is  repugnant  to  the  constitution.^s" 

Principle  by  Which  Constitutionality  of  Congressional  Legislation  De- 
termined.— But  we  may  not  test  the  power  of  congress  to  regulate  commerce 
solely  by  abstractly  considering  the  particular  subject  to  which  a  regulation  re- 
lates, irrespective  of  whether  the  regulation  in  c[uestion  is  one  of  interstate  com- 
merce. On  the  contrary,  the  test  of  power  is  not  merely  the  matter  regulated, 
but  whether  the  regulation  is  directly  one  of  interstate  commerce,  or  is  embraced 
within  the  grant  conferred  on  congress  to  use  all  lawful  means  necessary  and 
appropriate  to  the  execution  of  the  power  to  regulate  commerce.^ ^^ 

Necessity  for  Legislation — Province  of  Congress  and  Judiciary. — Hav- 
ing the  express  power  to  make  rules  for  the  conduct  of  commerce  among  the 
states,  the  range  of  congressional  discretion  as  to  the  regulation  best  adapted 
to  remedy  a  practice  found  inefficient  or  hurtful  is  a  wide  one.  If  the  regulat- 
ing act  be  one  directly  applicable  to  such  commerce,  not  obnoxious  to  any  other 
provision  of  the  constitution,  and  reasonably  adapted  to  the  purpose  by  reason 


being  one  of  them,  the  power  is  absolute, 
except  as  limited  by  other  provisions  of 
the  constitution  itself.  Atlantic,  etc.,  R. 
Co.  V.  Riverside  Mills,  219  U.  S.  186,  55 
L.  Ed.  167,  31  S.  Ct.  164,  followed  in 
Louisville,  etc..  R.  Co.  v.  Scott,  219  U. 
S.  209,  55  L.  Ed.  183,  31  S.  Ct.  171. 

"This  power,  like  all  others  vested  in 
congress,  is  complete  in  itself,  may  be  ex- 
ercised to  its  utmost  extent,  and  acknowl- 
edges no  limitations  other  than  are  pre- 
scribed in  the  constitution.  *  *  *  jf_  ^g 
has  always  been  understood,  the  sover- 
eignty of  congress,  though  limited  to 
specified  objects,  is  plenary  as  to  those 
objects,  the  power  over  commerce  with 
foreign  nations  and  among  the  several 
states  is  vested  in  congress  as  absolutely 
as  it  would  be  in  a  single  government, 
having  in  its  constitution  the  same  re- 
strictions on  the  exercise  of  the  power 
as  are  found  in  the  constitution  of  the 
United  States."  The  Employers'  Liability 
Cases,  207  U.  S.  463,  52  L.  Ed.  297,  307, 
28    S.    Ct.   141. 

306-38a.  Limited  to  matters  and  things 
having  some  real  or  substantial  relation 
to  such  commerce. — Second  Emplovers' 
Liability  Cases,  223  U.  S.  1.  56  L.  Ed.  327, 
32   S.   Ct.  169. 

A  carrier,  by  engaging  in  interstate 
commerce,  does  not  thereby  sul)mit  all 
its  business  affairs  to  the  regulating  power 
of  congress.  Judgments  (C.  C.  1906),  148 
F.  986,  and  (C.  C.  1907),  148  F.  997,  af- 
firmed     The   Employers'   Liability  Cases, 


207  U.  S.  463,  52   L.   Ed.  297,  28  S.   Ct.  141. 

Keeping  house  of  ill  fame — Harboring 
alien  woman  after  entry  into  United 
States. — While  the  keeping  of  a  house  of 
ill  fame  is  offensive  to  the  moral  sense, 
yet  that  fact  must  not  close  the  eye  to 
the  question  whether  the  power  to  pun- 
ish therefor  is  delegated  to  congress  or 
is  reserved  to  the  state.  Jurisdiction  over 
such  an  offense  comes  within  the  ac- 
cepted definition  of  the  police  power. 
Speaking  generally,  that  power  is  re- 
served to  the  states,  for  there  is  in  the 
constitution  no  grant  thereof  to  congress. 
Keller  v.  United  States,  213  U.  S.  138,  53 
L.   Ed.   737,  29   S.   Ct.  470. 

Congress  had  not  the  power  to  enact 
the  provisions  of  the  Act  of  February  20, 
1907  (34  Stat,  at  L.  898,  chap.  1134),  §  3, 
for  the  criminal  punishment  of  the  mere 
keeping,  maintaining,  supporting,  or  har- 
boring, for  the  purpose  of  prostitution,  an 
alien  woman  within  three  years  after  she 
shall  have  entered  the  United  States.  Kel- 
ler V.  United  States,  213  U.  S.  138,  53  L. 
Ed.   737,   29   S.    Ct.    470. 

306-38b.  Interblending  of  subjects 
within  and  without  the  power  of  con- 
gress— Separability  of  statute. — The  Em- 
ployers' Liabilitv  Cases,  207  U.  S.  463, 
504,   52   L.    Ed.   297,    311,   28    S.    Ct.    141. 

306-41  a.  Principle  by  which  constitu- 
tionality of  congressional  legislation  de- 
termined.— The  Employers'  Liability 
Cases,  207  U.  S.  463.  52  L.  Ed.  297,  307, 
28   S.   Ct.  141. 


r04 


Vol.  VIL 


INTERSTATE,  ETC.,  COMMERCE. 


306-311 


of  legitimate  relation  between  such  commerce  and  the  rule  provided,  the  ques- 
tion of  power  is  foreclosed.'* ^a 

(c)    Pozver  over  Interstate  and  Foreign  Commerce  Compared. — See  note  43. 

(j)  Means  Employed — ff.  By  Making  Principal  Liable  for  Acts  of  Agents. 
— There  can  be  no  question  as  to  the  power  of  congress  to  regulate  interstate 
commerce  to  prevent  favoritism  and  to  secure  equal  rights  to  all  engaged  in  in- 
terstate trade,  and  to  this  end  congress  can  control  those  who  are  conducting 
interstate  commerce  by  holding  them  responsible  for  the  intent  and  purposes  of 
the  agents  to  whom  they  have  delegated  the  power  to  act  in  the  premises."*^^ 

Acts  of  Agents  of  Corporations. — The  act  of  the  agent  of  a  corporation 
engaged  in  interstate  commerce  while  exercising  the  authority  delegated  to  him 
to  make  rates  for  transportation,  may  be  controlled,  in  the  interest  of  public 
policy,  by  imputing  his  act  to  his  employer  and  imposing  penalties  upon  the  cor- 
poration for  which  he  is  acting  in  the  premises.*^*""  It  is  true  that  there  are  some 
crimes  which,  in  their  nature,  can  not  be  committed  by  corporations.  But  there 
is  a  large  class  of  offenses,  of  which  rebating  under  the  federal  statutes  is  one, 
wherein  the  crime  consists  in  purposely  doing  the  things  prohibited  by  statute. 
In  that  class  of  crimes  corporations  may  be  held  responsible  for  and  charged 
with  the  knowledge  and  purposes  of  their  agents,  acting  within  the  authority 
conferred  upon  them.'^'^'^ 

(2)  E.rclnsiveness  of  Pozver — (a)  Effect  of  Grant  of  Pozver  to  Congress 
Accompanied  by  Exercise  of  Pozver. — See  note  61. 

(b)  Effect  of  Grant  of  Pozver  to  Congress  Anterior  to  Exercise  of  Pozver  by 
Congress — bb.  Decisions  Holding  Grant  Not  in  All  Respects  Exclusive. — See 
note  64. 


306-42a.  Not  province  of  courts  to  in- 
quire into  necessity  of  legislation. — At- 
lantic, etc.,  R.  Co.  V.  Riverside  Mills,  219 
U.  S.  186,  55  L.  Ed.  167,  31  S.  Ct.  164, 
followed  in  Louisville,  etc.,  R.  Co.  v. 
Scott.  219  U.  S.  209,  55  L.  Ed.  183,  31  S. 
Ct.   171. 

No  question  with  reference  to  the 
power  of  congress  to  enact  a  regulation 
of  interstate  commerce  can  arise  if  the 
regulating  act  be  one  directly  applicable 
to  such  commerce,  not  obnoxious  to  any 
other  provision  of  the  federal  constitu- 
tion, and  reasonably  adapted  to  the  pur- 
pose of  reason  of  legitimate  relation  be- 
tween such  commerce  and  the  rule  pro- 
vided. Atlantic,  etc.,  R.  Co.  v.  Riverside 
Mills,  219  U.  S.  186,  55  L.  Ed.  167,  31  S. 
Ct.  164,  affirming  judgment  in  Riverside 
Mills  V.  Atlantic  Coast  Line  R.  Co.  (C. 
C.  1909),  168  F.  990;  Louisville,  etc.,  R. 
Co.  V.  Scott,  219  U.  S.  209,  55  L.  Ed.  183, 
31  S.  Ct.  171,  affirming  judgment  (1909), 
118  S.  W.  990,  133  Ky.  724. 

306-43.  Equal  power  over  foreign  and 
interstate  commerce. — ^It  has  frequently 
been  laid  down  by  the  federal  supreme 
court  that  the  power  of  congress  over  in- 
terstate commerce  is  as  absolute  as  it  is 
over  foreign  commerce.  Western  Union 
Tel.  Co.  V.  Coleman,  216  U.  S.  1,  54  L. 
Ed.   355,   30   S.    Ct.    190. 

310-60a.  By  making  principal  liable  for 
acts  of  agent. — New  York,  etc.,  R.  Co.  v. 
United  States,  212  U.  S.  481,  496,  53  L. 
Ed.   613,   29    S.    Ct.   304. 

12    U    S    Enc— 45  705 


310-60b.   Acts  of  agents  of  corporations. 

— New  York,  etc.,  R.  Co.  v.  United  States, 
212  U.  S.  481,  494,  53  L.  Ed.  613,  29  S. 
Ct.   304. 

310-60C.  Same— Rebating.— New  York, 
etc.,  R.  Co.  V.  United  States,  212  U.  S.  481, 
494,    53    L.    Ed.    613,    29    S.    Ct.   304. 

310-61.  Exclusiveness  of  power — Right 
to  prevent  obstructive  legislation  by 
states. — It  is  not  only  the  right,  but  the 
duty,  of  congress,  to  see  to  it  that  inter- 
course among  the  states  and  the  trans- 
mission of  intelligence  are  not  ob- 
structed or  unnecessarily  encumbered  by 
state  legislation.  International  Textbook 
Co._  V.  Pigg,  217  U.  S.  91,  54  L.  Ed.  678, 
30  'S.  Ct.  481,  followed  in  International 
Textbook  Co.  v.  Peterson.  218  U.  S.  664. 
54   L.   Ed.   1201,   31    S.    Ct.   225. 

311-64.  Decision  holding  grant  not  to 
be  exclusive. — The  mere  grant  of  a  power 
to  congress  to  regulate  commerce,  did 
not  imply  a  prohibition  on  the  states  to 
exercise  the  same  power;  that  it  is  not 
ihe  mere  existence  of  such  a  power,  but 
its  exercise  by  congress,  which  may  be 
incompatible  with  the  exercise  of  the 
same  power  by  the  states,  and  that  the 
states  may  legislate  in  the  absence  of 
congressional  regulations.  Missouri  Pac. 
R.  Co.  z>.  Larabee  Flour  Mills  Co.,  211  U. 
S.  612,  53  L.  Ed.  352,  29  S.  Ct.  214;  Stur- 
ges  z'.  Crowinshield,  4  Wheat.  122,  4  L. 
Ed.  529;  Houston  v.  Moore,  5  Wheat.  1, 
5  L.  Ed.  19;  Willson  7'.  Blackbird  Creek 
Marsh  Co.,  2  Pet.  245,  251,  7  L.  Ed.  412. 


314-321 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


cc.  Decisions  Holding  Pozver  Exclusive — Better  Rule — (aa)  General  State- 
ment of  Rule. — See  note  72. 

(bb)  Validity  of  State  Legislation  Merely  Affecting  Commerce — aaa.  In  Gen- 
eral.— See  note  7i. 

(3)  Subjects  of  Regulation — (a)  In  General — aa.  All  Commercial  Inter- 
course.— See  note  90. 

bb.  Subjects  of  Commerce  and  Persons  Engaged  Therein. — See  post,  "Rail- 
roads," II,  A,  1,  b,  (3),  (b),  dd. 

cc.   Instrumentalities. 


314-72.  Power  of  congress  to  "regulate" 
commerce    in    all    respects     exclusive. — It 

has  been  frequentli^  decided  in  the  federal 
supreme  court  that  the  right  to  regulate 
interstate  commerce  is,  by  virtue  of  the 
federal  constitution,  exclusively  vested  in 
the  congress  of  ihe  United  States.  The 
states  can  not  pass  any  law  directly  regu- 
lating such  coinmerce.  Attempts  to  do 
so  have  been  declared  unconstitutional  in 
many  instances,  and  the  exclusive  power 
in  congress  to  regulate  such  commerce 
uniformly  maintained.  Southern  R.  Co. 
V.  King,  217  U.  S.  524,  54  t.  Ed.  868,  30 
S.    Ct.   594. 

In  Atlantic,  etc.,  R.  Co.  v.  Wharton,  207 
U.  S.  328,  334.  52  L.  Ed.  230,  28  S.  Ct.  121, 
it  was  declared  "that  anj^  exercise  of  state 
authority,  in  whatever  form  manifested, 
which  directly  regulates  interstate  com- 
merce, is  repugnant  to  the  commerce 
clause  of  the  constitution."  Adams  Exp. 
Co.  V.  Commonwealth,  214  U.  S.  218,  53 
L.   Ed.   972,   29    S.    Ct.    633. 

"It  is  not  necessary  to  review  the  cases 
in  this  court  which  have  settled  beyond 
peradventure  that  the  national  govern- 
ment has  exclusive  authority  to  regulate 
interstate  commerce  under  the  constitu- 
tion of  the  United  States;  nor  to  do  more 
than  reaffirm  the  equally  well  settled 
proposition  that  over  interstate  commerce 
transportation  rates  the  state  has  no  ju- 
risdiction, and  that  an  attempt  to  regulate 
such  rates  by  the  state  or  under  its  au- 
thority is  void."  Railroad  Comm.  7'. 
Worthington,  225  U.  S.  101.  56  L.  Ed. 
1004,  1008,  33  S.  Ct.  653,  citing  Louisville, 
etc.,  R.  Co.  V.  Eubank,  184  U.  S.  27,  46 
L.    Ed.   416,  22   S.   Ct.  277. 

315-73.  State  legislation  may  affect  com- 
merce without  constituting  regulation. — 
See,  also,  post,  "Police  Power  as  Limited 
by  Commercial  Power  of  Congress,"  II, 
A,  2,   c,    (3),    (c),  cc. 

The  state,  in  the  absence  of  express  ac- 
tion by  congress,  may  regulate  many  mat- 
ters which  indirectly  aflfect  interstate  com- 
merce but  which  are  for  the  comfort  and 
convenience  of  its  citizens.  Of  the  ex- 
istence of  such  a  rule  there  can  be  no 
question.  It  is  settled  and  illustrated  by 
many  cases.  Missouri  Pac.  R.  Co.  v. 
Larabee  Flour  Mills  Co.,  211  U.  8.  612, 
53  L.  Ed.  352,  29  S.  Ct.  214. 


The  state  may  pass  laws  enforcing  the 
rights  of  its  citizens  which  affect  inter- 
state commerce,  but  fall  short  of  regulat- 
ing such  commerce  in  the  sense  in  which 
the  constitution  gives  exclusive  jurisdic- 
tion to  congress.  Davis  v.  Cleveland,  etc., 
St.  R.  Co.,  217  U.  S.  157,  54  L.  Ed.  708, 
30  S.  Ct.  463;  Sherlock  v.  Ailing,  93  U. 
S.  99,  103,  23  L.  Ed.  819;  Kidd  v.  Pearson, 
128  U.  S.  1,  23,  32  L.  Ed.  346,  9  S.  Ct.  6; 
Pennsylvania  R.  Co.  v.  Hughes,  191  U. 
S.  477,  48  L.  Ed.  268,  24  S.  Ct.  132;  The 
Winnebago,  205  U.  S.  354,  362,  51  L.  Ed. 
836,  27  S.   Ct.  509. 

The  rights  of  the  states  to  pass  laws 
not  having  the  effect  to  regulate  or  di- 
rectly interfere  with  the  operation  of  in- 
terstate commerce,  passed  in  the  exer- 
cise of  the  police  power  of  the  state,  in 
the  interest  of  the  public  health  and 
safety,  have  been  maintained  by  the  de- 
cisions of  the  federal  court.  Southern  R. 
Co.  V.  King.  217  U.  S.  524,  54  L.  Ed.  868, 
30  S.  Ct.  594. 

That  a  state  may  not  pass  laws  directly 
regulating  foreign  or  interstate  commerce 
has  frequently  been  held  in  the  decisions 
of  the  federal  supreme  court.  But,  while 
this  is  true,  it  has  also  been  held  in  re- 
peated instances  that  laws  passed  by  the 
states  in  the  exertion  of  their  police 
power,  not  in  conflict  with  laws  of  con- 
gress upon  the  same  subject,  and  indi- 
rectly or  remotely  affecting  interstate 
commerce,  are  nevertheless  valid  laws. 
Silz  V.  Hesterberg,  211  U.  S.  31,  53  L. 
Ed.  75.  29  S.  Ct.  10;  Missouri,  etc.,  R.  Co. 
V.  Haber.  169  U.  S.  613.  42  L.  Ed.  878,  18 
S.  Ct.  488;  Pennsylvania  R.  Co.  v.  Hughes, 
191  U.  S.  477,  48  L.  Ed.  268,  24  S.  Ct.  132; 
Asbell  V.  Kansas,  209  U.  S.  251,  52  L.  Ed. 
778,   28   S.    Ct.  4S5. 

321-90.  Every  species  of  commercial  in- 
tercourse —  Gratuitous  transportation. — 
The  power  of  congress  over  interstate 
transportation  embraces  all  manner  of 
carriage  whether  gratuitous  or  otherwnse. 
American  Exp.  Co.  v.  United  States,  212 
U.  S.  522,  53  L.  Ed.  635,  29  S.  Ct.  315; 
United  States  v.  New  York,  etc.,  R.  Co., 
212  U.  S.  508,  53  L.  Ed.  629.  29  S.  Ct.  313. 
See  ante,  "Interstate  and  Foreign  Com- 
merce Defined,"  I,  A,  1,  b.  See,  also,  post, 
"Embraces  All  ^Manner  of  Carriage, 
Gratuitous  or  Otherwise,"  IV,  D,  1, 
aH,  (4). 


ro6 


Vol.  VII. 


INTERSTATE,  ETC.,  COMMERCE. 


324-328 


See  post,  "Railroads,"  II,  A,  1,  b,  (3),  (b),  dd. 

(b)    Regulation  of  Particular  Matters — bb.    Corporations. — See  notg  5. 

dd.   Railroads — (aa)    In  General. — See  note  11. 

(cc)  Equal  Accommodations  to  Passengers. — Effect  of  Interstate  Com- 
merce Clause  in  Absence  of  Legislation  by  Congress — Right  of  Carriers 
to  Adopt  Rules. — The  interstate  commerce  clause  of  the  constitution  does  not 
constrain  the  action  of  carriers,  but,  on  the  contrary,  leaves  them  to  adopt  rules 
and  regulations  for  the  government  of  their  business,  free  from  any  interfer- 
ence except  by  congress.  Such  rules  and  regulations,  of  course,  must  be  reason- 
able, but  whether  they  be  such  can  not  depend  upon  a  passenger  being  state  or 
interstate.^®* 

Same— Separation  of  White  and  Negro  Passengers.— For  example,  con- 
gressional inaction  is  equivalent  to  a  declaration  that  a  carrier  may,  by  its  regu- 
lations, separate  white  and  negro  interstate  passengers. ^^^ 

(cc><j  Safety  of  Persons  and  Property— zaa.  In  General. — The  power  of 
congress  to  regulate  interstate  commerce  is  plenary,  and  competently  may  be  ex- 
erted to  secure  the  safety  of  the  persons  and  property  transported  therein,  and 
of  those  who  are  employed  in  such  transportation,  no  matter  what  may  be  the 
source  of  the  dangers  which  threaten  it;  and  it  is  no  objection  to  such  an  exer- 
tion of  this  power  that  the  dangers  intended  to  be  avoided  arise,  in  whole  or  in 
part,  out  of  matters  connected  with  intrastate  commerce. ^sc 

bbb.  Rolling  Stock  and  Equipment — (aaa)  In  General. — Among  the  instru- 
ments and  agents  to  which  the  power  extends  are  the  railroads  over  which 
transportation  from  one  state  to  another  is  conducted,  the  engines  and  cars  bv 


324-5.  Corporations  subject  to  regulat- 
ing power  of  congress. — See  ante,  COR- 
PORATIONS, ante.  p.  381. 

"We  need  not  reassert  the  ample  power 
which  the  constitution  has  been  construed 
to  confer  upon  congress  in  the  regulation 
of  interstate  commerce,  declared  in  the 
many  cases  in  this  court  from  Gibbons  v. 
Ogden.  9  Wheat.  1,  6  L.  Ed.  23,  to  its 
most  recent  deliverances.  In  Hale  v. 
Henkel,  201  U.  S.  43,  75,  50  L-  Ed.  652, 
26  S.  Ct.  370,  while  general  visitorial 
power  over  state  corporations  was  not 
asserted  to  be  within  the  power  of  con- 
gress, it  was  nevertheless  declared  as  to 
interstate  commerce  that  the  general  gov- 
ernment had,  in  the  vindication  of  its 
own  laws,  the  same  power  it  would  pos- 
sess if  the  corporation  had  been  created 
by  act  of  congress."  Interstate  Com- 
merce Comm.  V.  Goodrich  Transit  Co., 
224  U.  S.  194,  56  L.  Ed.  729,  738,  32  S. 
Ct.  436. 

325-11.  Railroads — In  general. — Among 
the  instruments  and  agents  to  which  the 
power  extends  are  the  railroads  over  which 
the  transportation  from  one  state  to  an- 
other is  conducted,  the  engines  and  cars  by 
which  such  transportation  is  effected,  and 
all  who  are  in  anywise  engaged  in  such 
transportation,  whether  as  common  car- 
riers or  as  their  emplo}'ees.  Second  Em- 
ployers' Liabihty  Cases.  223  U.  S.  1.  56 
L.  Ed.  327.  32  S.  Ct.  169.  See.  also.  In- 
terstate Commerce  Comm.  v.  IlHnois,  etc., 
R.  Co.,  215  U.  S.  452,  54  L.  Ed.  280,  30  S. 
Ct.  155;  Interstate  Commerce  Comm.  v. 
Chicago,  etc.,  R.  Co.,  215  U.  S.  479,  54  L. 


Ed.  291,  30  S.  Ct.  163:  Chicago,  etc.,  R. 
Co.  r.  Arkansas,  219  U.  S.  453,  55  L.  Ed. 
290.   31    S.   Ct.   275. 

328-18a.  Effect  of  interstate  commerce 
clause  in  absence  of  legislation  by  con- 
gress— Right  of  carriers  to  adopt  rules. — 
Chiles  z:  Chesapeake,  etc..  R.  Co.,  218  U 
S.  71,   54  L.   Ed.   936,  30   S.   Ct.   667. 

328-18b.  Same — Separation  of  white  and 
negro  passengers.— Chiles  v.  Chesapeake, 
etc..  R.  Co.,  218  U.  S.  71,  54  L.  Ed.  936. 
30  S.  Ct.  667,  following  principles  laid 
down  in  Hall  v.  DeCuir,  95  U.  S.  485,  24 
L.  Ed.  547.  See,  also,  ante,  CIVIL 
RIGHTS,  p.  236. 

328-18C.  Safety  of  persons  and  prop- 
erty— Generally. — Southern  R.  Co.  f. 
United  States,  222  U.  S.  20,  27,  56  L.  Ed. 
72,  32  S.  Ct.  2;  Second  Employers'  Lia- 
bility Cases,  223  U.  S.  1,  56  L.  Ed.  327,  32 
S.  Ct.  169. 

By  virtue  of  its  power  to  regulate  in- 
terstate and  foreign  commerce,  congress 
may  enact  laws  for  the  safeguarding  of 
the  persons  and  property  that  are  trans- 
ported in  that  commerce,  and  of  those 
who  are  emploj'ed  in  transporting  them. 
Baltimore,  etc.,  R.  Co.  f.  Interstate  Com- 
merce Comm.,  221  U.  S.  612,  55  L.  Ed. 
878,  31  S.  Ct.  621;  Johnson  v.  Southern 
Pac.  Co.,  196  U.  S.  1.  49  L.  Ed.  363,  25  S. 
Ct.  158;  Adair  r.  United  States,  208  U.  S. 
161,  178,  52  L.  Ed.  436,  28  S.  Ct.  277;  St. 
Louis,  etc.,  R.  Co.  v.  Taylor,  210  U.  S. 
281,  52  L.  Ed.  1061,  28  S.  Ct.  616;  Chicago, 
etc.,  R.  Co.  z:  United  States,  220  U.  S. 
559.   55   L.    Ed.   582,   31    S.   Ct.   612. 


"07 


328 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


which  such  transportation  is  effected,  and  all  who  are  in  anywise  engaged  in 
such  transportation,  whether  as  common  carriers  or  as  their  employees. ^^''  Con- 
gress, in  its  discretion,  may  take  entire  charge  of  the  whole  subject  of  the  equip- 
ment of  interstate  cars,  and  establish  such  regulations  as  are  necessary  and 
proper  for  the  protection  of  those  engaged  in  interstate  commerce.^^^ 

(bbb)  Safety  Appliance  Act. — General  Power  of  Congress — Not  Limited 
to  Cars  Used  Solely  in  Moving-  Interstate  Traffic. — Congress  has  the  power, 
under  the  commerce  clause  of  the  federal  constitution,  to  require,  as  it  did  in 
the  Safety  Appliance  Act  of  March  2,  1893,  c.  196,  27  Stat.  531  (U.  S.  Comp. 
St.  1901,  p.  3174),  as  amended  by  Act  March  2,  1903,  c.  976,  32  Stat.  943  (U.  S. 
Comp.  St.  Supp.  1909,  p.  1143),  that  all  locomotives,  cars,  and  similar  vehicles 
used  on  any  railway  engaged  in  interstate  commerce  shall  be  equipped  with  cer- 
tain designated  safety  appliances,  regardless  of  whether  such  vehicles  are  used 
in  moving  intrastate  or  interstate  trafific.^"'''  This  is  so,  not  because  congress 
possesses  any  power  to  regulate  intrastate  commerce  as  such,  but  because  its 
power  to  regulate  interstate  commerce  is  plenary,  and  competently  may  be  ex- 
erted to  secure  the  safety  of  the  persons  and  property  transported  therein  and 
of  those  who  are  employed  in  such  transportation,  no  matter  what  may  be  the 
source  of  the  dangers  which  threaten  it.  That  is  to  say,  it  is  no  objection  to 
such  an  exertion  of  this  power  that  the  dangers  intended  to  be  avoided  arise, 
in  whole  or  in  part,  out  of  matters  connected  with  intrastate  commerce. ^s°  For 
these  reasons  it  must  be  held  that  the  original  act,  as  enlarged  by  the  amendatory 
one,  is  intended  to  embrace  all  locomotives,  cars,  and  similar  vehicles  used  on 
any  railroad  which  is  a  highway  of  interstate  commerce. ^^^ 

iExcluding  Elements  of  Knowledge,  Due  Diligence,  etc. — Absolute  Lia- 
bility.— The  pov^er  of  the  legislature  to  declare  an  offense  and  to  exclude  the 
elements  of  knowledge  and  due  diligence  from  any  inquiry  as  to  its  commission 
can  not  be  questioned.^ ^'  Hence  it  was  competent  for  congress,  in  enacting  the 
Safety  Appliance  Acts  of  March  2,  1893  (27  Stat,  at  L.  531,  chap.  196,  U.  S. 
Comp.  Stat.  1901.  April  1.  1896  (29  Stat,  at  L.  ^S,  c.  87,  U.  S.  Comp.  Stat.  1901, 


328-18d.  Rolling  stock  and  equipment 
— Generally. — Second  Employers'  Liability 
Cases,  223  U.  S.  1,  56  L.  Ed.  327,  32  S.  Ct. 
169. 

Commerce,  in  the  constitutional  sense, 
includes  the  instrumentalities  by  which 
commerce  is  carried  on,  and  extends  to 
the  equipment  of  a  railroad  engaged  in 
interstate  commerce,  including  the  coal 
cars  owned  by  a  railroad  company  en- 
gaged in  interstate  commerce,  in  which 
it  receives  from  the  tipple  of  the  coal 
mines  along  its  lines  coal  purchased  bj' 
it  and  used  solely  for  its  own  fuel  pur- 
poses. Interstate  Commerce  Com.ni.  v. 
Illinois,  etc.,  R.  Co.,  215  U.  S.  452,  54  L. 
Ed.  280.  30  S.  Ct.  155;  Interstate  Com- 
merce Comm.  V.  Chicago,  etc.,  R.  Co.,  215 
U.   S.  479,  54  L.  Ed.  291,  30  S.  Ct.  163. 

328-18e.  Same. — Chicago,  etc.,  R.  Co.  r. 
.Arkansas,  219  U.  S.  453,  55  E.  Ed.  290,  31 
S.    Ct.   275. 

328-18f.  Safety  appliance  act — Power  of 
congress  not  limited  to  cars  used  solely 
in  moving  interstate  traffic. — Southern  R. 
Co.  V.  United  States,  222  U.  S.  20,  56  L. 
Ed.  72.  32  S.  Ct.  2,  affirming  United  States 
z:   Southern   R.  Co.,   164  Fed.  347. 

328-18g.     Same. — Southern     R.      Co.     v. 


United  States,  222  U.  S.  20,  56  L.  Ed.  72, 
32   S.   Ct.  2. 

328-18h.  Same. — Southern  R.  Co.  v. 
United  States,  222  U.  S.  20,  56  L.  Ed.  72, 
32   S.   Ct.  2.     _ 

Cars  used  in  moving  intrastate  traffic 
on  a  railway  which  is  a  highway  of  inter- 
state commerce  are  comprehended  by  the 
provisions  of  Safety  Appliance  Act  IMarch 
2,  1893,  c.  196,  27  Stat.  531  (U.  S.  Comp. 
St.  1901,  p.  3174),  as  amended  by  Act 
March  2,  1903,  c.  976,  32  Stat.  943  (U.  S. 
Comp.  St.  Supp.  1909,  p.  1143),  declaring, 
inter  alia,  that  its  provisions  and  require- 
ments shall  "apply  to  all  trains,  locomo- 
tives, tenders,  cars,  and  similar  vehicles 
used  on  any  railroad  engaged  in  interstate 
commerce,  and  in  the  territories  and  the 
District  of  Columbia,  and  to  all  other 
locomotives,  tenders,  cars,  and  similar  ve- 
hicles used  in  connection  therewith." 
Southern  R.  Co.  v.  United  States,  222  U. 
S.  20,  56  L.  Ed.  72,  32  S.  Ct.  2,  affirming 
iudgment  (D.  C.  1908),  United  States  v. 
Southern  R.  Co.,  164  F.  347. 

328-18i.  Excluding  elements  of  knowl- 
edge, due  diligence,  etc. — Absolute  lia- 
bility.— Chicago,  etc.,  R.  Co.  v.  United 
States.  220  U.  S.  559,  55  L.  Ed.  582,  31 
S.   Ct.  612. 


r08 


Vol.  VII. 


INTERSTATE,  ETC.,  COMMERCE. 


328 


p.  3175),  and  March  2,  1903  {Z2  Stat,  at  L.  943,  chap.  976,  U.  S.  Comp.  Stat. 
1909,  p.  1143),  to  impose  an  absohite  liabihty  upon  carriers  engaged  in  moving 
interstate  commerce,  whose  cars  do  not  satisfy  the  requirements  of  those  acts, 
so  that  the  carriers  whose  cars  do  not  conform  to  the  requirements  of  those 
acts  can  not  escape  liabihty  by  showing  that  they  exercised  reasonable  care  in 
equipping  their  cars  with  the  required  safety  appliances,  and  that  they  used  due 
care  and  diligence  to  keep  them  in  repair  by  the  usual  inspection.  In  short,  it 
was  competent  for  congress  to  impose  upon  the  carriers  an  absolute  duty  which 
is  not  discharged  by  the  exercise  of  reasonable  care  and  diligence.^^^ 

Requirements  of  Statute  Construed. — Drawbars  of  unloaded  freight  cars 
■are  required,  by  the  Safety  Appliance  Act  of  March  2,  1893,  §  5,  to  be  of  uni- 
form and  standard  height;  but  those  of  loaded  cars  need  not  be  of  uniform 
height,  provided  that  they  do  not  vary  more  than  the  three  inches  prescribed 
as  the  maximum  permitted  variation  from  the  standard. i^*^ 

Same — Use  of  Wedges  to  Raise  Drawbars. — The  statutory  duty  imposed 
upon  carriers  in  absolute  terms  by  the  Safety  Appliance  Act  of  March  2,  1893, 
§  5,  of  using  in  interstate  commerce  only  such  freight  cars  as  comply  with  the 
standard  fixed  as  the  height  for  drawbars,  is  not  discharged  by  furnishing  cars 
constructed  with  drawbars  of  the  standard  height,  and  by  furnishing  to  com- 
petent inspectors  and  trainmen  a  sufficient  number  of  metallic  wedges,  or  "shims," 


328-18J.  Same.— Chicaso,  etc.,  R.  Co.  v. 
United  States,  220  U.  S.  559,  55  L.  Ed. 
582,  31  S.  Ct.  612,  following  St.  Louis, 
etc.,  R.  Co.  V.  Tavlor,  210  U.  S.  281,  52 
L.   Ed.   1061,  28   S.   Ct.  616. 

On  this  point  the  court  says:  "We 
have  nothing  to  do  but  to  ascertain  and 
declare  the  meaning  of  a  few  simple 
words  in  which  the  duty  is  described.  It 
is  enacted  that  'no  cars,  either  loaded  or 
unloaded,  shall  be  used  in  interstate  traffic 
which  do  not  comply  with  the  standard.' 
There  is  no  escape  from  the  meaning  of 
these  words.  Explanation  can  not  clarify 
them,  and  ought  not  to  be  employed  to 
confuse  them  or  lessen  their  significance. 
The  obvious  purpose  of  the  legislature 
was  to  supplant  the  qualified  duty  or  the 
common  law  with  an  absolute  duty, 
deemed  by  it  more  just.  If  the  railroad 
does,  in  point  of  fact,  use  cars  which  do 
not  comply  with  the  standard,  it  violates 
the  plain  prohibitions  of  the  law,  and 
there  arises  from  that  violation  the  lia- 
bility to  make  compensation  to  one  who 
is  iniured  bv  it."  St.  Louis,  etc.,  R.  Co. 
T'.  Taylor,  210  U.  S.  281,  53  L.  Ed.  1061, 
28    S.    Ct.   616. 

An  absolute  duty  to  provide  every  car 
used  in  moving  interstate  traffic  with  au- 
tomatic couples,  and  to  maintain  them 
in  proper  condition  at  all  times  and  un- 
der all  circumstances,  is  imposed  upon 
interstate  carriers  by  the  Safety  Appli- 
ance Act  of  March  2,  1893,  which_  was  not 
discharged  by  properly  equipping  the 
car  with  automatic  couplers,  and  using 
due  diligence  to  keep  them  in  good  work- 
ing order.  Delk  v.  St.  Louis,  etc.,  R.  Co., 
220  U.  S.  580,  55  L.  Ed.  590,  31  S.  Ct. 
617. 

The   statute   imposed   on   the   carrier   an 


absolute  duty  to  provide  its  cars,  when 
moving  interstate  traffic,  with  the  re- 
quired couplers,  and  keep  them  in  proper 
condition,  and  that,  too,  without  any 
reference  to  the  care  or  diligence  which 
might  have  been  exercised  in  performing 
its  statutory  duty.  Delk  t'.  St.  Louis,  etc., 
R.  Co.,  220  U.  S.  580,  55  L.  Ed.  590,  31  S. 
Ct.    617. 

328-18k.  Requirements  of  statute  con- 
strued.— St.  Louis,  etc.,  R.  Co.  v.  Taylor, 
210  U.  S.  281,  52  L.  Ed.  1061,  28  S.  Ct. 
616. 

The  act  requires  that  the  center  of  the 
drawbars  of  freight  cars  used  on  standar,1 
guage  railroads  shall  be,  when  the  cars 
are  empty,  34^  inches  above  the  level  of 
the  tops  of  the  rails;  it  permits,  when  a 
car  is  partly  or  fully  loaded,  a  variation 
in  the  height  downward,  in  no  case  to 
exceed  three  inches;  it  does  not  require 
that  the  variation  shall  be  in  proportion 
to  the  load,  nor  that  a  fully  loaded  car 
shall  exhaust  the  full  three  inches  of  the 
maximum  permissible  variation  and  bring 
its  drawbars  down  to  the  height  of  31^ 
inches  above  the  rails.  If  a  car,  when  vm- 
loaded,  has  its  drawbars  34^^  inches 
above  the  rails,  and,  in  any  stage  of  load- 
ing, docs  not  lower  its  drawbars  more 
than  three  inches,  it  complies  with  the 
requirements  of  the  law.  If,  when  un- 
loaded, its  drawbars  are  of  greater  or  less 
height  than  the  standard  prescribed  l>y 
the  law,  or  if.  when  wholly  or  partially 
loaded,  its  drawbars  are  lowered  niore 
than  the  maximum  variation  permitted, 
the  car  does  not  comply  with  the  require- 
ments of  the  law.  St.  Louis,  etc..  R.  Co. 
V.  Tavlor.  210  V.  S.  281,  52  L.  Ed.  1061, 
1065,  28  S.  Ct.  616. 


r09 


328  INTBRSTATE,  ETC.,  COMMERCE.  Vol.  VII. 

to  use  as  occasion  demands  to  raise  to  the  legal  standard  drawbars  lowered  by 
the  natural  effect  of  proper  use.^*' 

Proceedings  to  Enforce  Statute— Nature  of  Action.— An  action  by  the 
United  States  to  recover  from  a  carrier  the  penalty  prescribed  for  violations  of 
the  Safety  Appliance  Acts  of  March  2,  1893,  April  1,  1896,  and  March  2,  1903. 
is  a  civil  and  not  a  criminal  action. i^" 

Same — Petition — Sufficiency. — A  petition  states  no  cause  of  action  under 
the  original  Safety  Appliance  Act  of  March  2,  1893  (27  Stat,  at  L.  531,  chap. 
196,  U.  S.  Comp.  Stat.  1901,  p.  3174),  making  it  unlawful  for  any  railroad  car- 
rier engaged  in  interstate  commerce  "to  haul  or  permit  to  be  hauled  or  used  on 
its  line  any  car  used  in  moving  interstate  traffic,  not  equipped  with  couplers 
coupling  automatically  by  impact,"  where  there  is  no  allegation  that  either  of  the 
cars  was,  at  the  time  of  the  accident,  or  at  any  time,  used  in  moving  interstate 
traffic.!^-^ 

Evidence — Car  Used  in  Moving  Interstate  Traffic— When. — A  freight 
car  loaded  with  interstate  freight,  and  placed  on  a  side  track  in  the  railway 
yard  at  destination,  to  await  simple  repairs  to  the  automatic  coupler,  is  used  m 
moving  interstate  commerce  wdthin  the  meaning  of  the  Safety  Appliance  Act  of 
March  2,  1893,  c.  196,  27  Stat.  531  (U.  S.  Comp.  St.  1901,  p.  3174),  when  a 
coupling  with  another  car  is  thereafter  attempted  by  the  carrier's  order,  during 
the  course  of  switching  operations. ^^^ 

ccc.  Train  Crew;  Number  and  Qualifications. — Congress,  in  its  discretion,  may 
take  entire  charge  of  the  whole  subject  of  the  equipment  of  interstate  cars,  and 
establish  such  regulations  as  are  necessary  and  proper  for  the  protection  of 
those  engaged  in  interstate  commerce.  But  it  has  not  done  so  in  respect  to  the 
number  of  employees  to  whom  may  be  committed  the  actual  management  of 
interstate  trains  of  any  kind.  It  has  not  established  any  regulations  on  that 
subject,  and  until  it  does,  the  statutes  of  the  state,  not  in  their  nature  arbitrary, 
and  which  really  relate  to  the  rights  and  duties  of  all  within  the  jurisdiction, 
must  control. ^^P 

328-181.    Same — Use  of  wedges  to  raise  the    use    of   the    car  in   movinq:  interstate 

drawbars. — St.  Louis,  etc.,  R.  Co.  v.  Tay-  traffic.     It  did  not  embrace  all  cars  used 

lor,   210   U.    S.   281,   52    L.    Ed.   1061,   28    S.  on    the    line    of   such    a    carrier,    but    only 

Ct.  616.  such  as  were  used  in  interstate  commerce. 

328-18m.     Proceedings   to    enforce   stat-  Southern  R.  Co.  v.  United  States,  222  U. 

ute— Nature   of   action.— Chicago,   etc.,    R.  S.  20,  25,  56  L.  Ed.  72,  32  S.  Ct.  2.     The 

Co.  V.  United  States,  220  U.   S.  559,  55  L.  act  was   amended   March   2,   1903,   32   Stat. 

Ed.   582,   31   S.   Ct.   612.  at    L.    943,    chap.    976,    U.    S.    Comp.    Stat. 

328-18n.     Same — Petition — Sufficiency. —  Supp.   1909,   p.   1143,   so  as   to  include   all 

Brinkmeier   v.    Missouri   Pac.    R.    Co.,    224  cars  'used  on  any  railroad  engaged  in  in- 

U.   S.  268,   56  L.   Ed.  758.   32   S.   Ct.   412.  terstate    commerce,'    but    the    amendment 

Same — Amended  act. — "The   petition,  if  came   too  late   to   be   of  any  avail   to  the 

liberally   construed,    charged   that   defend-  plaintiff."      Brinkmeier    :•.    Missouri    Pac. 

ant  was  a  common  carrier  engaged  in  in-  R.    Co.,   224   U.    S.   268,   56   L.    Ed.   758,   32 

terstate    commerce   by   railroad;    that   the  S.  Ct.  412. 

cars  in  question  were  not  equipped  with  328-18o.     Evidence — Car    used    in    mov- 

couplers  of  the  prescribed  type,  and  that  ing   interstate   traffic,   when. — Delk   v.    St. 

the    plaintiff's    injuries     proximately      re-  Louis,    etc.,    R.    Co.,   220   U.    S.   580,    55   L. 

suited  from  the  absence  of  such  couplers;  Ed.  590,  31  S.  Ct.  617,  reversing  judgment 

but  there  was  no  allegation  that  either  of  in  St.  Louis,  etc.,  R.  Co.  v.  Delk,  158  Fed. 

tlie  cars  was  then  or  at  anj^  time  used  in  931. 

moving    interstate    traffic.      The    supreme  328-18p.  Train  crew — Number  and  quali- 

court    of   the    state    held   that   in    the    ab-  fications. — Chicago,    etc.,    R.    Co.    v.    Ar- 

sence    of   such    an   allegation    the   petition  kansas,   219   U.    S.   453,   55   L.   Ed.   290,   31 

did  not  state  a  cause  of  action  under  the  S.   Ct.  275. 

original  act.  We  think  that  ruling  was  Prescribing  a  minimum  of  three  brake- 
right.  The  terms  of  that  act  were  such  men  for  freight  trains  of  more  than  25 
that  its  application  depended,  first,  upon  cars,  operated  in  the  state,  as  is  done  by 
the  carrier  being  engaged  in  interstate  Laws  Ark.  1907,  No.  116,  does  not 
commerce  by  railroad,  and,   secnnd,  upon  amount  to  an  unconsLitutional  regulation 

710 


Vol.  VII. 


INTERSTATE,  ETC.,  COMMERCE. 


328 


ddd.   Hours  of  Labor. — Power  of  Congress  to  Regulate,  Generally. — The 

protection  of  life  and  property  in  connection  with  the  operation  of  interstate 
trains  is  necessarily  dependent  upon  the  efficiency  of  the  human  agencies  em- 
ployed in  the  movement  of  such  trains ;  and  as  the  length  of  hours  of  service 
has  a  direct  relation  to  the  efficiency  of  such  agencies,  it  follows  that  a  restric- 
tion upon  the  hours  of  labor  of  employees  connected  with  the  movement  of  trains 
in  interstate  transportation  is  comprehended  within  the  sphere  of  authorized 
legislation  under  the  interstate  commerce  clause  of  the  federal  constitution.  In 
its  power  suitably  to  provide  for  the  safety  of  property  and  of  employees  and 
travelers,  therefore,  congress  is  not  limited  to  the  enactment  of  laws  relating  to 
mechanical  appliances,  but  it  is  also  competent  to  consider,  and  to  endeavor  to 
reduce,  the  dangers  incident  to  the  strain  of  excessive  hours  of  duty  on  the  part 
of  engineers,  conductors,  train  dispatchers,  telegraphers,  and  other  persons  em- 
ployed in  connection  with  the  operation  of  interstate  trains.  And  in  imposing 
restrictions  having  reasonable  relation  to  this  end  there  is  no  interference  with 
the  liberty  of  contract  as  guaranteed  by  the  constitution.^^" 

Scope  of  Statutes — Intrastate  Roads  and  Employees. — Congress  has  not 
attempted  to  extend  its  powers  in  this  behalf  to  intrastate  railroads  and  em- 
ployees wholly  engaged  in  local  business. ^^'"  But  the  power  of  congress  to  limit 
the  hours  of  labor  of  employees  engaged  in  interstate  transportation  can  not  be 
defeated  either  by  prolonging  the  period  of  service  through  other  requirements 
of  the  carriers,  or  by  the  commanding  of  duties  relating  to  interstate  and  intra- 
state operations ;  and  the  statute  without  aiTecting  its  constitutionality,  may  be 
made  to  apply,  as  it  does  apply,  to  trains  and  employees  which,  through  practi- 


of  interstate  commerce  when  applied  to 
a  foreign  railway  company  engaged  in 
such  cominerce.  Chicago,  etc.,  R.  Co.  v. 
Arkansas,  219  U.  S.  453,  55  L.  Ed.  290.  31 
S.  Ct.  275.  affirming  judgment  (1908),  111 
S.  W.  456,  86  Ark.  312. 

328-18q.  Hours  of  labor — Power  of  con- 
gress to  regulate,  generally. — Baltimore, 
etc.,  R.  Co.  V.  Interstate  Commerce 
Comm.,  221  U.  S.  612,  55  L.  Ed.  878.  31 
S.  Ct.  621;  Chicago,  etc.,  R.  Co.  v.  Mc- 
Guire,  219  U.  S.  549,  55  L.  Ed.  328,  31  S. 
Ct.  259. 

Congress,  in  the  exercise  of  its  power 
over  commerce,  could  enact  the  provisions 
of  Act  March  4.  1907,  c.  2939,  34  Stat.  1415 
(U.  S.  Comp.  St.  Supp.  1909,  p.  1170),  re- 
stricting the  hours  of  labor  of  railwaj' 
employees  who  are  connected  with  the 
movement  of  trains  in  interstate  or  for- 
eign commerce.  Baltimore,  etc.,  R.  Co. 
V.  Interstate  Commerce  Comm.,  221  U. 
S.    612,   55   L.    Ed.   878,   31    S.    Ct.   621. 

328-18r.  Scope  of  statutes — Intrastate 
roads  and  employees. — Baltimore,  etc.,  R. 
Co.  V.  Interstate  Commerce  Comm.,  221 
U.   S.   612,   55   L.    Ed.   878,   31    S.   Ct.   621. 

Intrastate  railroads  and  employees 
wholly  engaged  in  local  business  were  not 
affected  by  the  provisions  of  Act  March 
4,  1907,  c.  2939,  §  2,  34  Stat.  1416  (U.  S. 
Comp.  St.  Supp.  1909,  p.  1170),  making  it 
"unlawful  for  any  common  carrier,  its 
officers  or  agents,  subject  to  this  act,_  to 
require  or  permit  any  employee  subject 
to  this  act  to  be  or  remain  on  duty"  for 
a    longer    period    than     that      prescribed,- 


since  such  carriers  and  employees  are 
defined  in  section  1  as  those  who  are  en- 
gaged in  the  transportation  of  passengers 
or  property  by  railroad  in  the  District  of 
Columbia  or  the  territories,  or  in  inter- 
state or  foreign  commerce,  although  that 
section  further  defines  "railroad"  as  in- 
cluding all  bridges  and  ferries  used  or 
operated  in  connection  with  any  railroad, 
and  also  all  the  road  in  use  by  any  car- 
rier operating  a  railroad  by  contract, 
agreement,  or  lease,  and  "employees"  as 
meaning  persons  actually  engaged  in,  or 
connected  with,  the  movement  of  any 
train.  Baltimore,  etc.,  R.  Co.  v.  Interstate 
Commerce  Comm.,  221  U.  S.  612,  55  L. 
Ed.   878,   31    S.    Ct.   621. 

The  statute,  in  its  scope,  is  materially 
different  from  the  Act  of  June  11,  1906, 
chapter  3073,  34  Stat,  at  L.  232,  U.  S. 
Comp.  Stat.  Supp.  1909,  p.  1148,  which  was 
before  the  federal  supreme  court  in  The 
Employers'  Liability  Cases,  207  U. 
S.  463,  52  L.  Ed.  297,  28  S.  Ct.  141.  There, 
while  the  carriers  described  were  those 
engaged  in  the  commerce  subject  to  the 
regulating  power  of  congress,  it  appeared 
that  if  a  carrier  was  so  engaged,  the  act 
governed  its  relation  to  every  employee, 
although  the  employment  of  the  latter 
might  have  nothing  whatever  to  do  with 
interstate  commerce.  In  the  present  stat- 
ute, the  limiting  words  govern  the  em- 
ployees as  well  as  the  carriers.  Baltimore, 
etc.,  R.  Co.  V.  Interstate  Commerce 
Comm.,  221  U.  S.  612.  55  L.  Ed.  878,  31 
S.    Ct.    621. 


711 


328  INTERSTATE,  ETC.,   COMMERCE.  Vol.  VII. 

cal  necessity,  are  employed  in  both  interstate  and  intrastate  transportation. ^^^ 
Certainty  and  Validity  of  Act — Effect  of  Exemption  in  Case  of  Emer- 
gency, etc. — The  words  "except  in  case  of  emergency,"  in  the  proviso  in  the 
Act  of  March  4,  1907,  §  2,  making  it  unlawful  for  railway  carriers  engaged  in 
transportation  in  the  District  of  Columbia  or  the  territories,  or  in  interstate  or 
foreign  commerce,  to  require  or  permit  employees  engaged  in  such  transporta- 
tion to  be  or  remain  on  duty  for  a  longer  period  than  that  prescribed,  do  not 
make  the  application  of  the  act  so  uncertain  as  to  destroy  its  validity,  even  though 
the  proviso  in  §  3,  limiting  the  eftect  of  the  entire  act,  can  be  said  to  include 
everything  which  m.ay  be  embraced  within  the  term  "emergency. "^^^ 

Requirement  as  to  Hours  of  Labor  Construed. — By  §  2  of  the  act  it  is 
made  unlawful  for  conmion  carriers  subject  to  the  act  to  permit  any  employee 
subject  to  the  act  to  be  on  duty  "for  a  longer  period  than  sixteen  consecutive 
hours,"  or,  after  that  period,  to  be  on  duty  again  until  he  has  had  at  least  ten 
consecutive  hours  off  duty,  or  eight  hours  after  sixteen  hours'  work  in  the  ag- 
gregate ;  provided  that  no  telegraph  operator  and  the  like  shall  be  permitted  to 
be  "on  duty  for  a  longer  period  than  nine  hours  in  any  twenty-four  period  in 
all  towers,  offices,  places  and  stations  continuously  operated  night  and  day,  nor 
for  a  longer  period  than  thirteen  hours  in  all  towers,  offices,  places  and  stations 
operated  only  during  the  daytime,"  with  immaterial  exceptions.  Construing 
this  proviso  forbidding  telegraph  operators  to  be  on  duty  for  a  longer  period 
than  nine  hours  in  any  twenty-four  hour  period,  it  is  held  that  it  does  not  imply 
that  such  operators  shall  have  fifteen  consecutive  hours  of  rest  in  each  twenty- 
four,  but  that  the  hours  oft'  or  on  duty  may  be  broken  up  into  shorter  periods, 
and  that  the  requirement  is  satisfied  if  the  total  number  of  hours  on  duty  does 
not  exceed  nine  in  each  twenty-four  hour  period. ^^" 

Exclusive  or  Controlling  Operation  of  Statute. — It  is  elementary  that  the 
right  of  a  state  to  apply  its  police  power  for  the  purpose  of  regulating  intei  state 
commerce,  in  a  case  like  this,  exists  only  from  the  silence  of  congress  on  the 
subject,  and  ceases  when  congress  acts  on  the  subject,  or  manifests  its  purpose 

328-18s._    Same — Trains    and    employees  after  an  interval,  three  and  one-half  more 

engaged  in  both  interstate  and  intrastate  hours    in    the    same    twenty-four,    is    noc 

transportation. — Baltimore,   etc.,    R.   Co.  v.  made   unlawful   by   the    provisions   of  the 

Interstate    Commerce    Comm..    221    U.    S.  Act  of  March  4,  1907  (34  Stat,  at  L.  141.5, 

612,  55  L.  Ed.  878,  31  S.  Ct.  621;  Northern  1416,  chap.  2939,  U.   S.   Comp.   Stat.   Supp. 

Pac.   R.  Co.  V.  Atkinson,  222  U.  S.  370,  56  1909,   pp.    1170,    1171),    §§   2,   3,    forbidding 

L.   Ed.   237,   32   S.   Ct.   160.  common  carriers  to  permit  such  employees 

The  restrictions  upon  the  hours   of  la-  to   be   on   duty   for   a  longer  period   than 

bor  of  railway  employees  connected  with  nine  hours  in  any  twenty-hour  period  in 

the   movement  of  trains  in  interstate  trans-  a   place    continuously   operated   night   and 

portation.  made  by  Act  March  4,  1907,  c.  day.     United  States  v.  Atchinson,  etc.,  R. 

2939,  34  Stat.  1415   (U.  S.  Comp.  St.  Supp.  Co.,  220  U.  S.  37,  55  L.  Ed.  361,  31   S.  Ct. 

1909,  p.  1170),  are  not  unconstitutional  be-  362. 

cause  many  of  such  employees  are,  by  "It  is  impossible  to  ex'.ract  the  require- 
virtue  of  practical  necessity,  also  em-  ment  of  fifteen  hours'  continuous  leisure 
ployed  in  intrastate  transportation.  Balti-  from  the  words  of  the  statute  by  gram- 
more,  etc.,  R.  Co.  V.  Interstate  Commerce  matical  construction  alone.  The  proviso 
Comm.,  221  U.  S.  612,  55  L.  Ed.  S78,  31  docs  not  say  nine  'consecutive'  hours,  as 
S.   Ct.   621.  was  said  in  the  earlier  part  of  the  section, 

328-18t.    Certainty  and  validity  of  act —  and  i;  it  had  sr.id  so,  or  ever  'fo;   a  longer 

Effect  of  exception  in  case  of  emergency,  period  than  a  period  of  nine   consecutive 

etc. — Baltimore,   etc..    R.   Co.  v.    Interstate  hours,'  still  the  defendant's  conduct  would 

Commerce    Comm.,    221    U.    S.    612.    55    L.  not  have  contravened  the   literal  meaning 

Ed.   878,   31    S.   Ct.   621.  of   the   words.      A   man   employed   for   six 

328-18U.     Requirement    as    to    hours    of  hours    and    then,    after     an      interval     for 

labor   construed. — United    States   v.   Atch-  three,  in  the  same  twenty-four,  is  not  em- 

inson,  etc.,  R.  Co.,  220  U.  S.  37,  55  L.  Ed.  ploved  for  a  longer  period  than  nine  con- 

361,  31   S.   Ct.  362.  seciitive   hours."      United    States   v.    Atch- 

Requiring  a  railway  telegraph   operator  inson,  etc..  R.  Co.,  220  U.  S.  37,  55  L.  Ed. 

to  work  five  and  one-half  hours,  and  then,  361,  31  S.  Ct.  362. 

712 


Vol.  MI.  IXTERSTATE,  ETC.,   COMMERCE.  328 

to  call  into  play  its  exclusive  power. i-^"  Congress  has  so  acted  upon  the  subject 
of  the  hours  of  labor  of  interstate  railway  employees  by  enacting  the  Hours  of 
Ser\-ice  Act  (Act  March  4,  1907,  c.  2939,  34  Stat.  1415,  U.  S.  Comp.  Stat.  Supp. 
1909,  p.  1170)  as  to  preclude  a  state  during  the  period  between  the  date  of  that 
act  and  the  time  when,  by  its  express  terms,  it  should  go  into  effect,  from  mak- 
ing or  enforcing  as  to  such  employees  a  local  regulation  limiting  hours  of  labor.^^'' 

Reports  as  to  Excess  Service — Power  of  Commission  to  Require. — Au- 
thority to  require  the  secretary  or  similar  officer  of  the  carriers  subject  to  Act 
March  4,  1907.  c.  2939,  34  Stat.  1415  (U.  S.  Comp.  St.  Supp.  1909,  p.  1170), 
legulating  the  hours  of  labor  of  employees,  to  make  monthly  reports  under  oath, 
showing  instances  where  employees  subject  to  the  act  have  rendered  excess  serv- 
ice, and  giving  the  cause  and  explanatory  facts,  if  any,  or,  where  there  has  been  no 
excess  service,  to  make  a  separate  oath  to  that  effect  in  lieu  of  the  form  to  be 
used  in  detailing  excess  service,  was  conferred  upon  the  interstate  commerce 
commission  by  the  provision  of  section  4.  empowering  it  to  call  to  its  aid  in  the 
enforcement  of  the  act  "all  powers  granted  to  it,"  wdien  read  in  connection  with 
Act  of  June  18,  1910,  c.  309,  §  14,  36  Stat.  555,  authorizing  the  Commission  to 
require  the  carriers  to  file  periodical  or  special  reports  under  oath  concerning 
any  matter  about  which  it  is  by  law  authorized  or  required  to  keep  itself  informed, 
or  which  it  is  required  to  enforce. ^^^ 

Same — Self-incrimination. — Carriers  subject  to  the  Act  of  ]\Iarch  4,  1907, 
regulating  hours  of  labor  of  employees,  can  not  claim  a  privilege  against  self- 
crimination  to  justify  the  refusal  to  comply  with  an  order  of  the  interstate 
commerce  commission,  requiring  the  secretary  or  similar  officer  to  make  monthly 
reports  under  oath,  showing  the  instances  where  employees  subject  to  the  act 
have  rendered  excess  service,  and  giving  the  cause  and  explanatory  facts,  if  any, 
or  where  there  has  been  no  excess  service,  to  make  a  separate  oath  to  that  effect, 
in  lieu  of  the  form  to  be  used  in  detailing  excess  service.^*-' 

Same — Same — Privilege  of  Officers  of  Corporation. — The  secretary  or 
similar  officer  of  a  carrier  subject  to  the  Act  of  March  4,  1907,  regulating  hours 
of  labor  of  employees,  can  not  claim  a  personal  privilege  against  self-crimination 
to  justify  a  refusal  to  comply  with  an  order  of  the  interstate  commerce  commis- 
sion, requiring  such  official  to  make  monthly  reports  under  oath,  showing  the 
instances  where  employees  subject  to  the  act  have  rendered  excess  service,  and 
giving  the  cause  and  explanatory  facts,  if  any.  or,  where  there  has  been  no  ex- 
cess service,  to  make  a  separate  oath  to  that  effect,  in  lieu  of  the  form  to  be  used 

328-18V.    Exclusive  or  controlling  opera-  the  fact  that  it  may  also  have  been  carry- 

tion  of  statute. — Xorthern  Pac.   R.  Co.  v.  ing    some    local    freight.     In    view    of   the 

Atkinson,  222  U.  S.  370.  56  L.   Ed.  237,  33  unity   and   indivisibility   of   the   service   of 

S.   Ct.   160.  the   train   crew   and   the  paramount  char- 

328-18W.    Same.— Xorthern   Pac.   R.   Co.  acter  of  the  authority  of  congress  to  regu- 

r.  Atkinson.  222  U.   S.  370,  56  L.   Ed.  237,  late    commerce,   the    act   of   congress   was 

32   S.  Ct.  160,  reversing  judgment   (1909\  exclusively    controUmg.      Northern     Pac. 

State    V.    Xorthern    Pac.    Ry.    Co.,    102    P.  R-   Co.  v.  Atkinson.  222  U.    S.  370.  56  L. 

876.   53   Wash.   673,   17   Ann.   Cas.   1013.  ?<!    237    32  S.  Ct.  160;   Southern  R.  Co.  v. 

rru      .     •         1.U        u            •         {  Lnited  States,  222  U.  S.  20,  56  L.  Ed.  72, 

The   train,    although    moving   from    one  •^o   S    Ct    2 

point   to    another   in   the    state   of   Wash-  ^ 

ington,    was    hauling     merchandise      from  328-18x.     Reports    as    to    excess    service 

points    outside    of    fhe    state,    destined    to  —Power  of  commission  to  require.— Bal- 

points   within  the   state,   and   from  points  timore,    etc.,    R.    Co     ".'.Interstate    Lom- 

within  the  state  to  points  in  British   Co-  '-i^erce    Conrirn.,   221   U.    S.   612,    55    L.    Ed. 

lumbia,    as   well   as   in    carrj'ing   merchan-  ^''S-  31   S.   Ct.  621. 

dise    which    had    originated     outside      the  328-18y.        Same,       self-incrimination.— 

state,    and    was    in    transit     through      the  Baltimore,  etc.,  R.  Co.  v.  Interstate  Coni- 

state  to  a  foreign  destination.     This  trans-  merce    Comm.,   221    U.    S.   612,    55    L.    Ed. 

portation    was    interstate    commerce,    and  878,  31  S.  Ct.  621. 
the  train  was  an  interstate   train,   despite 

713 


328  INTERSTATE,  ETC.,  COMMERCE.  Vol.  VII. 

in  detailing  excess  service.'*^  The  transactions  to  which  the  required  reports  re- 
late are  corporate  transactions,  subject  to  the  regulating  power  of  congress. 
And,  with  regard  to  the  keeping  of  suitable  records  or  corporate  administration, 
and  the  making  of  reports  of  corporate  action,  where  these  are  ordered  by  the 
commission  under  the  authority  of  congress,  the  officers  of  the  corporation,  by 
virtue  of  the  assumption  of  their  duties  as  such,  are  bound  by  the  corporate 
obligation,  and  can  not  claim  a  personal  privilege  in  hostility  to  the  require- 
ment.^^'^^ 

Same — Unreasonable  Searches  and  Seizures. — The  constitutional  pro- 
tection against  unreasonable  searches  and  seizures  is  not  denied  by  an  order  of 
the  interstate  commerce  commission  requiring  the  secretary  or  other  similar 
officer  of  the  carriers  subject  to  the  Act  of  March  4,  1907,  regulating  the  hours 
of  labor  of  employees,  to  make  monthly  reports  under  oath,  showing  the  in- 
stances where  employees  subject  to  the  act  have  rendered  excess  service,  and 
giving  the  cause  and  explanatory  facts,  if  any,  or,  where  there  has  been  no  excess 
service,  to  make  a  separate  oath  to  that  effect,  in  lieu  of  the  form  to  be  used  in 
detailing  excess  service. ^^'^^ 

eee.  Employers'  Liability  Acts. — Power  of  Congress  to  Enact — In  Gen- 
eral.— Congress,  in  the  exercise  of  its  power  over  interstate  commerce,  may 
regulate  the  relations  of  railway  carriers  and  their  employees  while  both  are 
engaged  in  such  commerce,  subject  always  to  the  limitations  prescribed  in  the 
federal  constitution,  and  to  the  qualification  that  the  particulars  in  which  those 
relations  are  regulated  must  have  a  real  or  substantial  connection  Avith  the  in- 
terstate commerce  in  which  the  carriers  and  employees  are  engaged. ^^'^'^  The  du- 
ties of  common  carriers  in  respect  of  the  safety  of  their  employees,  while  both 
are  engaged  in  commerce  among  the  states,  and  the  liability  of  the  former  for 
injuries  sustained  by  the  latter,  while  both  are  so  engaged,  have  a  real  or  sub- 
stantial relation  to  such  commerce,  and  therefore  are  within  the  range  of  this 
power. i^"^*^ 

Scope  of  Power — Intrastate  Employees. — An  employer  engaged  in  inter- 
state transportation  does  not  bring  his  entire  business,  including  that  which  is 
intrastate  as  well  as  that  which  is  interstate,  within  the  legislative  power  of  con- 
gress;  nor  does  the  interstate  commerce  clause  of  the  constitution  authorize  con- 
gress to  extend  the  provisions  of  an  employers'  liability  act  to  those  employees 
engaged  in  commerce  which  is  wholly  intrastate,  except  in  so  far  as  their  negli- 
gence or  misfeasance  may  affect  that  commerce  which  may  be  denominated 
interstate. ^^^^     And  where  the  provisions  of  an  act  applicable  to  both  interstate 

328-18Z.    Same,  same,  privilege    of    offi-  33    S.    Ct.    169;    The    Employers'    Liability 

cers    of    corporation.— Baltimore,    etc.,    R.  Cases,  207  U.  S.  463,  52  L.  Ed.  297,  308,  28 

Co.   V.    Interstate    Commerce    Comm.,   221  S.   Ct.  141. 

U.   S.  612.  55   L.  Ed.  878,  31   S.  Ct.  621.  It  can  not  be  said  that  because  a  regu- 

328-18aa.     Same,     same,      same. — Balti-  lation  adopted  by  congress  as  to  a  train 

more,  etc.,  R.  Co.  v.  Interstate  Commerce  when    engaged    in     interstate      commerce 

Comm.,   221   U.   S.   612,   55   L.   Ed.   878,   31  deals   with  "the   relation   of   the   master   to 

S.    Ct.    621;    Wilson     v.      United      States,  the   servants   operating  such   train   or  the 

221  U.  S.  361,  55  L.  Ed.  771,  31  S.  Ct.  538.  relation   of  the   servants   engaged  in   such 

328-18bb.     Same,  unreasonable   searches  operation   between   themselves,    that   it   is 

and   seizures. — Baltimore,    etc.,    R.    Co.    v.  not   a   regulation   of  interstate  commerce. 

Interstate    Commerce    Comm.,    221    U.    vS.  The    Employers'    Liability    Cases,    207    U. 

613,  55  L.  Ed.  878,  31   S.   Ct.  621.  S.  463,  52  L.  Ed.  397,  308,  28  S.  Ct.  141. 

328-18CC.    Power  of  congress  to  enact —  328-18ee.      Scope    of    power — Intrastate 

In  general.— Second   Employers'  Liability  employees.— Second    Employers'    Liability 

Cases,    323    U.    S.    1,    56    L.    Ed.    327,    32    S.  Cases,  223  U.  S.  1,  56  L.  Ed.  337,  33  S.  Ct. 

Ct.    169,    reversing   83    Conn.   373,    73    Atl.  i69;  The   Employers'  Liability  Cases,  207 

762,    affirming   173    Fed.   494.  U.    S.    463,    52    L.    Ed.    297,    38    S.    Ct.    141; 

328-18dd.      Same.— Second      Employers'  El  Paso,  etc.,  R.  Co.  v.  Gutierrez,  215  U. 

Liability  Cases,  223  U.  S.  1,  56  L.  Ed.  327,  S.  87,  54  L.  Ed.  106,  30  S.  Ct.  31. 

714 


Vol.  VII. 


INTERSTATE,  ETC.,  COMMERCE. 


328 


and  intrastate  employees  are  so  interblended  as  to  be  inseparable,  the  statute  is 
repugnant  to  the  constitution  and  must  fail  as  a  whole. ^'''" 

Same — Territories  and  Places  under  Exclusive  Federal  Control. — The 

federal  power  of  regulation  within  the  states  is  limited  to  the  right  of  congress 
to  control  transactions  of  interstate  commerce ;  it  has  no  authority  to  regulate 
commerce  wholly  of  a  domestic  character. ^^^^     But  the  power  of  congress  to 


328-18ff.  Same — Valid  and  invalid  pro- 
visions— Separability  of  statute. — The  Em- 
ployers' Liability  Cases,  207  U.  S.  463, 
52   L.    Ed.   297,   28    S.    Ct.    141. 

Same — Illustration  of  principles — Act 
of  1906. — A  regulation  of  intrastate  as  well 
as  of  interstate  commerce,  and  therefore 
one  beyond  the  power  of  congress  to  en- 
act, is  made  by  the  provision  of  Em- 
ployers' Liability  Act  July  11,  1906,  c. 
3073,  34  Stat.  232  [U.  S.  Comp.  St.  Supp. 
1907,  p.  891],  that  "every  common  car- 
rier engaged  in  trade  or  commerce"  in 
the  District  of  Columbia  or  in  the  terri- 
tories or  between  the  several  states  shall 
be  liable  for  the  death  or  injury  of  "any 
of  its  employees"  which  may  result  from 
the  negligence  of  "any  of  its  officers, 
agents,  of  employees."  Judgments  (C. 
C.  1906),  148  F.  986,  and  (C.  C.  1907),  143 
F.  997.  affirmed.  The  Employers'  Lia- 
bility Cases,  207  U.  S.  463.  52  L.  Ed.  297, 
28    S.   Ct.   141. 

The  invalidity,  as  applied  to  intrastate 
commerce,  of  the  provision  of  the  Em- 
ployers' Liability  Act  of  June  11,  1906, 
that  "every  common  carrier  engaged  in 
trade  or  commerce"  in  the  District  of  Co- 
lumbia or  in  the  territories  or  between 
the  several  states  shall  be  liable  for  the 
death  or  injury  of  "any  of  its  employees" 
which  may  result  from  the  negligence  of 
"any  of  its  officers,  agents,  or  employees," 
invalidates  such  provision  as  applied  to 
interstate  commerce.  The  Employers' 
Liability  Cases,  207  U.  S.  463,  52  L.  Ed. 
297,  28  S.  Ct.  141. 

The  statute,  whilst  it  embraces  sub- 
jects within  the  authority  of  congress  to 
regulate  commerce,  also  includes  sub- 
jects not  within  its  constitutional  power 
and  the  two  are  so  interblended  in  the 
statute  that  they  are  incapable  of  separa- 
tion. The  statute  is  repugnant  to  the  con- 
stitution therefore  and  nonenforceable. 
The  Eniployers'  Li;ilulity  Cases,  207  U. 
S.    463,    52    L.    Ed.    297,    311,    28    S.    Ct.    141. 

The  act,  being  addressed  to  all  com- 
mon carriers  engaged  in  interstate  com- 
merce, and  imposing  a  liability  upon  them 
in  favor  of  any  of  their  employees,  with- 
out qualification  or  restriction  as  to  the 
business  in  which  the  carriers  or  their 
employees  may  be  engaged  at  the  time  of 
the  injury,  of  necessity  includes  subjects 
wholly  outside  of  the  power  of  congress 
to  regulate  commerce.  The  Employers' 
Liability  Cases,  207  U.  S.  463,  52  L.  Ed. 
297,  309,  28  S.  Ct.  141. 


As  the  act  thus  includes  many  subjects 
wholly  beyond  the  power  to  regulate 
commerce,  and  depends  for  its  sanction 
upon  that  authority,  it  results  that  the  act 
is  repugnant  to  the  constitution,  and  can 
not  be  enforced  in  view  of  the  fact  that 
the  objectionable  and  unobjectionable 
provisions  of  the  act  are  so  interblended 
that  they  can  not  be  separated,  and  even 
if  they  could,  it  is  plain  that  congress 
would  not  have  enacted  the  act,  or  so 
much  of  it  as  would  remain,  with  the  un- 
constitutional provisions  eliminated.  The 
Employers'  Liability  Cases,  207  U.  S.  463, 
52   L.   Ed.  297,  309,  28  S.  Ct.  141. 

Same— Same— Act  of  1908.— The  Em- 
ployers' Liability  Act  April  22,  1908,  c.  149, 
35  Stat.  65  (U.  S.  Comp.  St.  Supp.  1909,  p. 
irTl),  is  not  unconstitutional.  Second 
Employers'  Liability  Cases,  223  U.  S.  1, 
56  L.  Ed.  327,  32  S.  Ct.  169,  reversing  judg- 
ment  (1909)  73  A.  762,  82  Conn.  373. 

The  power  of  congress,  under  the  com- 
merce clause,  to  regulate  the  liability  of 
an  interstate  railway  carrier  for  the  death 
or  injury  of  an  employee  engaged  in  in- 
terstate commerce,  which  may  result  from 
the  negligence  of  a  fellow  servant,  is  not 
exceeded  by  the  enactment  of  Employer's 
Liability  Act  April  22,  1908,  c.  149,  35  Stat. 
65  (U.  S.  Comp.  St.  Supp.  1909,  p.  1171), 
although  that  act  embraces  mstances 
where  the  causal  negligence  is  that  of  an 
employee  engaged  in  intrastate  commerce. 
Second  Employers'  Liability  Cases,  223  U. 
S.  1,  56  L.  Ed.  327,  32  S.  Ct.  169. 

The  present  act,  unlike  the  one  con- 
demned in  The  Employers'  Liability 
Cases,  207  U.  S.  463,  52  L.  Ed.  297,  28  S. 
Ct.  141,  deals  only  with  the  liability  of  a 
carrier  engaged  in  interstate  commerce 
for  injuries  sustained  by  its  employees 
while  engaged  in  such  commerce.  And 
this  being  so,  it  is  not  a  valid  objection 
that  the  act  embraces  instances  where  the 
causal  negligence  is  that  of  an  employee 
engaged  in  intrastate  commerce;  for  such 
negligence,  when  operating  injuriously 
upon  an  employee  engaged  in  interstate 
commerce,  has  the  same  effect  upon  that 
commerce  as  if  the  negligent  employee 
were  also  engaged  therein.  Second  Em- 
ployers' Liability  Cases,  223  U.  S.  L  56  L. 
Ed.  327,  32   S.   Ct.  169. 

328-18gg.  Power  with  respect  to  terri- 
tories and  places  under  exclusive  federal 
control.— El  Paso.  etc..  R.  Co.  :•.  Gutier- 
rez, 215  U.  S.  87,  54  L.  Ed.  106.  :;o  S.  Ct.  21. 


715 


328 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


deal  with  trade  and  commerce  in  the  District  of  Columbia  and  the  territories 
does  not  depend  upon  the  authority  of  the  interstate  commerce  clause  of  the 
constitution/^'"''  and  the  invalidity,  so  far  as  interstate  commerce  is  concerned, 
of  the  provisions  of  the  Federal  Employers'  Liability  Act  of  June  11,  1906,  does 
not  invalidate  such  of  its  provisions  as  attempt  to  regulate  commerce  within  the 
District  of  Columbia  and  the  territories.^^" 

Classification  of  Carriers  and  Employees. — The  imposition  of  the  liability 
created  by  Employers'  Liability  Act  April  22,  1908,  c.  149,  35  Stat.  65  (U.  S. 
Comp.  St.  Supp.  1909,  p.  1171),  upon  interstate  carriers  by  railroad  only,  and 
for  the  benefit  of  all  their  employees  engaged  in  interstate  commerce,  although 
some  are  not  subjected  to  the  peculiar  hazards  incident  to  the  operation  of  trains, 
or  to  hazards  that  differ  from  those  to  which  other  employees  in  such  commerce 
not  within  the  act  are  exposed,  does  not  invalidate  the  statute  under  the  due 
process  of  law  clause  of  the  fifth  amendment  to  the  federal  constitution,  on  the 
ground  that  it  makes  an  arbitrary  and  unreasonable  classification,  even  assuming 
that  that  clause  is  equivalent  to  the  provision  of  the  fourteenth  amendment 
securing  the  equal  protection  of  the  laws.^^" 

Power  to  Make  Act  Effective  by  Forbidding-  or  Invalidating  Contracts 
or  Device  Waiving,  Modifying  or  Evading  Provisions  of  Same. — The 
power  to  enact  such  legislation  carries  with  it  the  power  to  prohibit  any  contract 
or  device  the  purpose  and  intent  of  which  is  to  waive,  modify,  evade,  or  in  any- 
wise thwart  the  purpose  of  the  act  by  relieving  the  employer  of  his  liability 
thereunder,  and  provisions  forbidding  the  making  of  such  contracts  or  the  em- 
ployment of  any  such  device  or  evasion  are  not  unconstitutional  as  infringing 
the  liberty  of  contract  guaranteed  by  the  fifth  amendment. ^^'^'^ 


328-18hh.  Same — Not  dependent  upon 
interstate  commerce  clause. — El  Paso,  etc., 
R.  Co.  V.  Gutierrez,  215  U.  S.  87,  54  L.  Ed. 
106,  30  S.  Ct.  2]. 

328-18ii.  Same — Act  of  1906  not  invalid 
as  to  territories  and  District  of  Columbia. 
— El  Paso,  etc.,  R.  Co.  v.  Gutierrez,  215  U. 
S.  87,  54  L.  Ed.  106,  30  S.  Ct.  21. 

Congress  had  the  power  to  enact  so 
much  of  the  Federal  Employers'  Liability 
Act  of  June  11,  1906,  as  provides  that 
every  common  carrier  engaged  in  trade 
or  commerce  in  any  territory  of  the 
United  States  shall  be  liable  for  the  death 
or  injury  of  any  of  its  employees  which 
may  result  from  the  negligence  of  any  of 
its  officers,  agents,  or  emploj'ees.  El 
Paso,  etc..  R.  Co.  v.  Gutierrez,  215  U.  S. 
87,  54  L.  Ed.  106,  30  S.  Ct.  21. 

328-18JJ.  Classification  of  carriers  and 
employees.— Second  Employers'  Liability 
Cases,  223  U.  S.  1,  56  L.  Ed.  327,  32  S.  Ct. 
169,  reversing  82  Conn.  373,  73  Atl.  762, 
and  affirming  173  Fed.  494. 

328-18kk.  Power  to  make  act  effective 
by  forbidding  or  invalidating  contracts  or 
device  waiving,  modifying  or  evading 
provisions  of  same. — Second  Employers' 
Liability  Cases,  223  U.  S.  1,  56  L.  Ed.  327, 
32  S.  Ct.  169,  reversing  82  Conn.  373,  73 
Atl.  762,  and  affirming  173  Fed.  494. 

"Next  in  order  is  the  objection  that  the 
provision  in  §  5,  declaring  void  any  con- 
tract, rule,  regulation,  or  device,  the  pur- 
pose   or    intent    of   which    is    to    enable    a 


carrier  to  exempt  itself  from  the  liability 
which  the  act  creates,  is  repugnant  to  the 
fifth  amendment  to  the  constitution  as  an 
unwarranted  interference  with  the  liberty 
of  contract.  But  of  this  it  suffices  to  say, 
in  view  of  our  recent  decisions  in  Chicago, 
etc.,  R.  Co.  V.  McGuire,  219  U.  S.  549,  55 
L.  Ed.  328.  31  S.  Ct.  259;  Atlantic,  etc..  R. 
Co.  V.  Riverside  Mills,  219  U.  S.  186,  55  L. 
Ed.  167,  31  S.  Ct.  164,  and  Baltimore,  etc., 
R.  Co.  V.  Interstate  Commerce  Comm.,  221 
U.  S.  612,  55  L.  Ed.  878,  31  S.  Ct.  621,  that 
if  congress  possesses  the  power  to  impose 
that  liability,  which  we  here  hold  that  it 
does,  it  also  possesses  the  power  to  insure 
its  efficacy  by  prohibiting  any  contract, 
rule,  regulation,  or  device  in  evasion  of  it." 
Second  Emplovers'  Liabilitv  Cases,  223 
U.  S.  1,  56  L.  Ed.  327,  32  S.  Ct.  169;  Phila- 
delphia, etc.,  R.  Co.  V.  Schubert,  224  U.  S. 
603.  56  L.  Ed.  911,  32  S.  Ct.  589;  Second 
Employers'  Liability  Cases,  223  U.  S.  1.  56 
L.  Ed.  327,  32  S.  Ct.  169. 

Congress,  possessing  the  power  exer- 
cised in  Employers'  Liability  Act  April  22, 
1908.  c.  149,  35  Stat.  65  (U.  S.  Comp.  St. 
Supp.  1900,  p.  1171),  to  regulate  the  rela- 
tions of  interstate  railway  carriers  and 
their  employees  engaged  in  interstate 
commerce,  made  no  unwarranted  interfer- 
ence with  the  liberty  of  contract,  contrary 
to  Const.  U.  S.  amend.  5,  by  declaring  in 
the  fifth  section  of  that  act  that  any  con- 
tract, rule,  regulation,  or  device  the  pur- 
pose or  intent  of  which  is  to  enable  the 
carrier  to  exempt  itself  from  the  liability 


7^16 


\'ol.  VII. 


IXTBRSTATB,  ETC.,  COMMERCE. 


328 


Same — Existing  Contracts. — The  power  of  congress,  in  its  regulation  ot 
interstate  commerce,  and  of  commerce  in  the  Drstrict  of  Columbia  and  in  the 
territories,  to  impose  this  liability,  is  not  fettered  by  the  necessity  of  maintain- 
ing existing  arrangements  and  stipulations  which  would  conflict  with  the  execu- 
tion of  its  policy.  To  subordinate  the  exercise  of  the  federal  authority  to  the 
continuing  operation  of  previous  contracts  would  be  to  place,  to  that  extent,  the 
regulation  of  interstate  commerce  in  the  hands  of  private  individuals,  and  to 
withdraw  from  the  control  of  congress  so  much  of  the  field  as  they  might  choose, 
by  prophetic  discernment,  to  bring  within  the  range  of  their  agreements.  The 
constitution  recognizes  no  such  limitation.  It  is  of  the  essence  of  the  delegated 
power  of  regulation  that,  within  its  sphere,  congress  should  be  able  to  establish 
uniform  rules,  immediately  obligatory,  which,  as  to  future  action,  should  tran- 
scend all  inconsistent  provisions.  Prior  arrangements  are  necessarily  subject 
to  this  paramount  authority. i*^"  Existing  as  well  as  future  contracts  of  the  pre- 
scribed character,  therefore,  fall  within  the  condemnation  in  the  Employers'  Lia- 
bility Act  of  xA.pril  22,  1908,  §  5,  of  "any  contract,  rule,  regulation,  or  device 
whatsoever,  the  purpose  or  intent  of  which  shall  be  to  enable  any  common 
carrier  to  exempt  itself  from  any  liability  created  by  this  act."^^™™ 


therein  created  shall  be  void.  Second 
Employers'  Liability  Cases,  223  U.  S.  1,  56 
L.  Ed.  327,  32  S.  Ct.  169.  reversing  judg- 
ment  (1909)   73  A.  762,  82  Conn.  373. 

328-1811.  Same — Existing  contracts. — 
Philadelphia,  etc.,  R.  Co.  f.  Schubert,  221 
U.  S.  603.  56  L.  Ed.  911.  32  S.  Ct.  589. 

328-18mm.  Same — Same — Statute  appli- 
cable to  existing  contracts. — Philadelphia, 
etc.,  R.  Co.  :•.  Schubert,  224  U.  S.  603,  56 
L.  Ed.  911,  32  S.   Ct.  589. 

If  congress  may  compel  the  use  of 
safety  appliances,  Johnson  z:  Southern 
Pac.  Co.,  196  U.  S.  1,  49  L.  Ed.  363,  25  S. 
Ct.  158,  or  fix  the  hours  of  service  of  em- 
ployees, Baltimore,  etc.,  R.  Co.  v.  Inter- 
state Commerce  Comm.,  221  U.  S.  612,  55 
L.  Ed.  878,  31  S.  Ct.  621,  its  declared  will, 
within  its  domain,  is  not  to  be  thwarted 
by  any  previous  stipulation  to  dispense 
with  the  one  or  to  extend  the  other.  And 
so,  when  it  decides  to  protect  the  safety 
of  employees  by  establishing  rules  of  lia- 
bility of  carriers  for  injuries  sustained  in 
the  course  of  their  service,  it  may  make 
the  rules  uniformly  effective.  These  prin- 
ciples, and  the  authorities  which  sustain 
them,  have  been  so  lately  reviewed  by 
this  court  that  extended  discussion  is  un- 
necessary. Philadelphia,  etc.,  R.  Co.  z'. 
Schubert,  224  U.  S.  603.  56  L.  Ed.  911,  32 
S.  Ct.  589:  Louisville,  etc  ,  R.  Co.  z.\  Mott- 
ley,  219  U.  S.  467,  55  L.  Ed.  297,  31  S.  Ct. 
265. 

Same — Stipulations  making  acceptance 
of  benefits  from  relief  department  operate 
as  a  release  of  damages. — Congress  had 
the  power  to  enforce  the  regulation^  val- 
idly prescribed  by  the  Employers'  Liabil- 
ity Act  of  x^pril  22,  1908  (35  Stat,  at  L.  65, 
chap.  149,  U.  S.  Comp.  Stat.  Supp.  1911,  p. 
1322),  §  5,  by  preventing  the  acceptance 
of  benefits  under  a  contract  of  member- 
ship in  a  railway  relief  department  from 
operating  as  a  bar  to  the  recovery  of  dam- 


ages for  the  injury  or  death  of  an  em- 
ployee, and  by  avoiding  any  agreement  to 
that  effect.  Philadelphia,  etc.,  R.  Co.  v. 
Schubert,  224  U.  S.  603,  56  L.  Ed.  911,  32  S. 
Ct.  589.  See,  also,  Chicago,  etc.,  R.  Co.  v. 
McGuire,  219  U.  S.  549,  55  L.  Ed.  328,  31 
S.  Ct.  259;  affirming  judgment,  AIcGuire  v. 
Chicago,  etc.,  R.  Co.,  138  Iowa,  664,  116  N. 
W.  801. 

Stipulations  making  the  acceptance  of 
iienefits  on  account  of  the  injury  or  death 
of  an  employee  under  a  contract  of  mem- 
l:»ership  in  a  railway  relief  department 
equivalent  to  a  release  of  the  cornpany's 
liability  must  be  deemed  to  fall  within  the 
condemnation  in  the  Einployers'  Liability 
Act  of  April  22,  1908,  §  5,  of  any  contract, 
rule,  regulation,  or  device  whatsoever,  the 
purpose  or  intent  of  which  shall  be  to  en- 
able any  common  carrier  to  exempt  itself 
from  any  liability  created  by  this  act,  es- 
pecially in  view  of  the  proviso  of  that 
section  permitting  a  set-off  of  any  sum 
which  the  company  may  have  contributed 
toward  any  benefit  paid  to  the  employee 
or  his  legal  representative.  Philadelphia, 
etc.,  R.  Co.  V.  Schubert,  224  U.  S.  603,  56 
L.  Ed.  911,  32  S.  Ct.  589. 

Construing  the  condemnation  in  the 
Employers'  Liability  Act  of  April  22,  1908. 
§  5,  of  "any  contract,  rule,  regulation,  or 
device  whatsoever,  the  purpose  or  intent 
of  which  shall  be  to  enable  an}'  coinmon 
carrier  io  exempt  itself  from  any  liabilitj' 
created  by  this  act"  as  eml)racing  an  exist- 
ing agreement  under  which  the  acceptance 
of  benefits  on  account  of  the  injury  or 
death  of  an  employee  under  a  contract  of 
meml:)ership  in  a  railway  relief  department 
was  to  release  the  company  from  liability^ 
does  not  render  the  section  invalid,  since 
such  agreement  must  necessarily  be  re- 
garded as  having  been  made  subject  to  the 
possibility  that  at  some  future  time  con- 
gress might  so  exert  its  power  to  regulate 


717 


328  INTERSTATE,  ETC.,  COMMERCE.  Vol.  VII. 

Particular  Provisions  Considered. — Congress  may  prescribe,  as  between 
an  interstate  carrier  and  such  ^f  its  employees  as  are  engaged  in  interstate  com- 
merce, that  the  carrier  shall  be  liable  for  the  death  or  injury  of  any  such  em- 
ployee while  so  engaged  which  may  result  from  the  negligence  of  a  fellow 
servant. 1^°°  And  congress  did  not  exceed  its  power  to  regulate  the  relations  of 
interstate  railway  carriers  and  their  employees  engaged  in  interstate  commerce 
by  enacting  Employers'  Liability  Act  April  22,  1908,  c.  149,  35  Stat.  65  (U.  S. 
Comp.  St.  Supp.  1909,  p.  1171),  which  abrogates  the  fellow  servant  rule,  ex- 
tends the  carrier's  liability  to  cases  of  death,  and  restricts  the  defenses  of  con- 
tributory negligence  and  assumption  of  risk,  since  no  one  has  any  vested  right 
in  any  rule  of  the  common  law,  and  the  natural  tendency  of  such  changes  is  to 
promote  the  safety  of  the  employees  and  to  advance  the  commerce  in  which  they 
are  engaged. i^°° 

Exclusive  Operation  of  Federal  Act. — State  and  territorial  legislation  un- 
dertaking to  regulate  the  liability  of  interstate  carriers  for  the  death  or  injury 
of  their  employees  while  engaged  in  interstate  commerce  is  superseded  by  the 
legislation  of  congress  in  so  far  as  it  covers  the  same  field.^^PP 

Enforcement  of  Act— Jurisdiction  of  State  Courts. — Rights  arising  under 
the  congressional  Employers'  Liability  Act  may  be  enforced,  as  of  right,  in  the 
courts  of  the  states  when  their  jurisdiction,  as  prescribed  by  local  laws,  is  ade- 
quate to  the  occasion. IS""!    The  enforcement  of  rights  under  the  Act  of  April  22, 

1908,  can  not  be  regarded  as  impliedly  restricted  to  the  federal  courts,  in  view 
of  the  concurrent  jurisdiction  provision  of  the  judiciary  Act  of  August  13,  1888 
(25  Stat,  at  L.  433,  chap.  866,  U.  S.  Comp.  Stat.  1901,  p.  508),  §  1,  and  of  the 
amendment  made  by  the  act  of  April  5,  1910  (36  Stat,  at  L.  291,  chap.  143),  to 
the  original  Employers'  Liability  Act,  which,  instead  of  granting  jurisdiction 
to  the  state  courts,  presupposes  that  they  already  possess  it.is^-i-  Nor  may  juris- 
diction of  an  action  to  enforce  the  rights  arising  under  the  Act  of  April  22,  1908, 
be  declined  by  the  courts  of  a  state  whose  ordinary  jurisdiction,  as  prescribed 

commerce  as  to  render  the  agreement  un-  gress  under  the  constitution  over  the  ter- 

enforceable,  or  impair  its  value.     Philadel-  ritories  of  the  United  States,  subject  only 

phia,  etc.,  R.  Co.  v.  Schubert,  224  U.  S.  603,  to  certain  limitations  and  prohibitions  not 

56  L.  Ed.  911,  32  S.  Ct.  589.  necessary  to  notice  now,  there  can  be  no 

328-18nn.     Particular     provisions     con-  doubt  that  an  act  of  congress  undertaking 

sidered. — The  Employers'  Liability  Cases,  to   regulate   commerce   in   the   District   of 

207  U.  S.  463,  52  L.  Ed.  297,  28  S.  Ct.  141,  Columbia  and  the  territories  of  the  United 

affirming  148  Fed.  986,  148  Fed.  997.  States    would    necessarily    supersede    the 

328-1800.  Same. — Second  Employers'  territorial  law  regulating  the  same  sub- 
Liability  Cases,  223  U.  S.  1,  56  L.  Ed.  327,  iect.  El  Paso,  etc..  R.  Co.  v.  Gutierrez, 
32   S.   Ct.   169.  215  U.  S.  87,  54  L.  Ed.  106,  30  S.  Ct.  21. 

328-18pp.  Exclusive  operation  of  federal  The  Federal  Employers'  Liability  Act  of 
act.— Second  Employers'  Liability  Cases,  June  11,  1906  (34  Stat,  at  L.  232,  chap. 
223  U.  S.  1,  56  L.  Ed.  327,  32  S.  Ct.  169,  re-  3073,  U.  S.  Comp.  Stat.  Supp.  1907,  p.  891). 
versing  82  Conn.  373,  73  Atl.  762,  and  af-  by  undertaking  to  regulate  commerce  in 
firming  173  Fed.  494;  El  Paso,  etc.,  R.  Co.  the  District  of  Columbia  and  the  territo- 
V.  Gutierrez,  215  U.  S.  87,  54  L.  Ed.  106,  30  ries  of  the  United  States,  necessarily  su- 
S  Ct.  21.  perseded  any  otherwise  applicable  provi- 
"  The  laws  of  the  several  states,  in  so  far  sions  of  the  New  Mexico  Act  of  March  11, 
as  they  cover  the  same  field,  were  super-  1903,  governing  suits  for  death  and  per- 
seded by  the  enactment  by  congress  of  sonal  injuries.  El  Paso,  etc.,  R.  Co.  v. 
Employers'  Liability  Act  April  22,  1908,  Gutierrez,  215  U.  S.  87,  54  L.  Ed.  106,  30 
c.  149,  35  Stat.  65   (U.  S.  Comp.   St.   Supp.  S.  Ct.  21.                                                         . 

1909,  p.  1171).  regulating  the  liability  of  328-18qq.  Enforcement  of  act— Junsdic- 
interstate  railway  carriers  for  the  death  tion  of  state  courts.— Second  Employers' 
or  injury  of  their  employees  while  en-  Liability  Cases,  223  U.  S.  1,  56  L.  Ed.  327, 
^aged    in    interstate    commerce.      Second  32  S.  Ct.  169. 

Employers'  Liability  Cases,  223  U.  S.  1,  56  328-18rr.    Same— No   implied   restriction 

L.  Ed.  327,  3  S.  Ct.  169,  reversing  judgment  to     federal     courts.— Second     Employers' 

(1909)  73  A.  762,  82  Conn.  373.  Liability  Cases,  223  U.  S.  1,  56  L.  Ed.  327, 

In   view   of   the   plenary   power   of   con-  32  S.  Ct.  169. 

718 


Vol.  YII.  IXTBRSTATB,  ETC.,  COMMERCE.         .  328 

by  local  laws,  is  adequate  to  the  occasion,  on  the  theory  that  such  statute  is  not 
in  harmony  with  the  policy  of  the  state,  or  that  the  exercise  of  such  jurisdiction 
will  be  attended  by  inconvenience  and  confusion  because  of  the  different  stand- 
ards of  right  established  by  the  congressional  act  and  those  recognized  by  the 
laws  of  the  state. ^^*'* 

Distribution  of  Damages. — The  distribution  of  damages  recoverable,  under 
the  Act  of  April  22,  1908,  from  an  interstate  railway  carrier,  for  the  death  of 
an  employee  while  engaged  in  interstate  commerce,  is  governed  by  the  provisions 
of  that  statute,  which  necessarily  supersede  any  applicable  state  legislation.^'^" 

(dd)  Protection  of  Lives  and  Limbs  of  Employees. — See  ante,  "Safetv  of 
Persons  and  Property,"  II,  A,  1,  b,  (3),  (b),  dd,  (cc  >^). 

(ee)  Qualifications,  Duties  and  Liabilities  of  Employees. — Forbidding  Dis- 
charge because  of  Membership  in  Labor  Organization. — There  is  no  such 
connection  between  interstate  commerce  and  membership  in  a  labor  organization 
as  to  authorize  congress  to  enact  legislation  making  it  a  crime  for  the  officers  or 
agents  of  interstate  carriers  to  discharge  employees  because  of  their  member- 
ship in  such  organizations. -^'^ 

(ff)  Liability  of  Carrier. — Making  Initial  Carrier  Liable  for  Loss  Any- 
where en  Route — Constitutionality  of  Statute. — It  is  within  the  power  of 
congress  to  impose  upon  an  interstate  carrier  voluntarily  receiving  property  for 
transportation  from  a  point  in  one  state  to  a  point  in  another  state,  liability  to 
the  holder  of  the  bill  of  lading  for  a  loss  anywhere  en  route,  with  a  right  of  re- 
covery over  against  the  carrier  actually  causing  the  loss,  and  to  invalidate  any 
agreement  or  stipulation,  limiting  the  liability  of  the  initial  carrier  to  losses  oc- 
curring on  its  own  line.^-^  Such  a  statute  is  not  unconstitutional,  either  as  tak- 
ing the  property  of  the  initial  carrier  to  pay  the  debt  of  an  independent  connect- 
ing carrier  in  violation  of  the  due  process  clause  of  the  fifth  amendment,  or  as 
violating  the  liberty  of  contract  guaranteed  by  that  amendment. ^2" 

C28-18SS.  Sarae — State  courts  not  to  de-  Ct.    164.    affirming    Riverside  Mills  z'.    At- 

cline      jurisdiction. — Second      Emoloj'ers'  lantic  Coast  Line  R.  Co.  (C.  C),  168  Fed. 

Liability  Cases,  223  U.  .S.  1,  56  L.  Ed.  327,  990;   Louisville,   etc.,    R.   Co.   v.   Scott,   219 

32  S.  Ct.  169.  U.   S.  209,  55  L.  Ed.  183,  31   S.  Ct.  171,  af- 

328-18tt.       Distribution     of     damages.—  firming  133  Ky.  724.  118  S.  W.  990.     See, 

Second    Employers'    Liability    Cases,    223  also,  ante,  CARRIERS,  p.  210. 

U.  S.  1,  56  L.  Ed.  327,  32  S.  Ct.  169.  The   imposition  upon  an  interstate   car- 

328-21a.     Forbidding   discharge  because  rier    voluntarily     receiving    property    for 

of    membership    in     labor    organization. —  transportation  from  a  point  in   one   state 

Adair  z'.  United  States,  208  U.  S.  161,  52  L.  to  a  point  in  another  state,  of  liability  to 

Ed.  436,  28  S.  Ct.  277.  the  holder  of  the  l)ill  of  lading  for  a  loss 

There    is  no    such    connection    between  anywhere  en  route,  with  a  right  of  recov- 

interstate    commerce    and    membership    in  ery  over  against  the  carrier  actually  caus- 

a  labor  organization  as  to  authorize  Con-  ing  the  loss  which  is  made  by  Act  Feb.  4, 

gress,  by  Act  June  1,  1898,  c.  370,  §  10,  30  1887,  c.  104,  §  20,  24  Stat.  386  (U.  S.  Comp. 

Stat.  424   [U.   S.   Comp.   St.   1901,  p.   3205],  St.  1901,  p.  3169),  as  amended  by  Act  June 

to    make    it    a    crime    against    the    United  29,    1906,  c.    3591,  §    7,  34    Stat.  593  (U.    S. 

States  for  an  agent  or  officer  of  an  inter-  Comp.  St.  Supp.  1909,  p.  1163),  in  spite  of 

state   carrier,  having  full  authority  in  the  any  agreement  or  stipulation  limiting  lia- 

premises   from  his  principal,  to   discharge  bility  to  its  own  line,  is  a  valid  regulation 

an  employee  from  service  to  such  carrier  of  interstate  commerce.     Atlantic,  etc.,  R. 

because  of  such  membership   on  his  part.  Co.  v.  Riverside  Mills,  219  U.  S.  186,  55  L. 

Judgment,  United  States  v.  Adair  (D.  C),  Ed.  167,  31  S.  Ct.  164.  affirming  judgment 

152    F.    737,     reversed.      Adair    v.    United  Riverside   Alills  t'.   Atlantic  Coast  Line  R. 

States.  208  U.  S.  161,  52  L.   Ed.  436,  28  S.  Co.    (C.  C.    1909),    168  F.    990;    Louisville, 

Ct.  277.  etc.,    R.  Co.  V.    Scott,  219    U.  S.    209.  55    L. 

328-22a.      Making    initial    carrier    liable  Ed.  183,  31   S.  Ct.  171,  affirming  judgment 

for  loss  anywhere  en  route — Constitution-  (1909),  118  S.  W.  990,  133  Ky.  724;  Galves- 

ality  of  statute.— Galveston,  etc.,  R.  Co.  v.  ton,  etc.,  R.  Co.  ?'.  Wallace,  223  U.  S.  481, 

Wallace,  223  U.  S.  481,  56  L.  Ed.  516,  32  S.  56  L.  Ed.  516,  32  S.  Ct.  205. 

Ct.  205;  Atlantic,  etc.,  R.  Co.  v.  Riverside  328-22b.       Same — As    a    deprivation     of 

Mills,    219  U.  S.  186,    55  L.  Ed.    167,  31    S.  property,  liberty  of  contract,  etc.— .\tlan- 

719 


328 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


Same — Requiring  Carrier  to  Undertake  to  Carry  to  Destination. — The 

requirement  that  carriers  who  undertake  to  engage  in  interstate  transportation, 
•and  as  a  part  of  that  business  hold  themselves  out  as  receiving  packages  destined 
to  places  beyond  their  own  terminal,  shall  be  required,  as  a  condition  of  con- 
tinuing in  that  traffic,  to  obligate  themselves  to  carry  to  the  point  of  destination, 
using  the  lines  of  connecting  carriers  as  their  own  agencies,  was  not  beyond  the 
scope  of  the  power  of  regulation.--^ 

Enforcement  of  Act — Jurisdiction  of  State  Courts. — The  damage  caused 
by  the  failure  of  a  connecting  carrier  in  an  interstate  shipment  to  deliver  the 
goods  to  the  consignee,  for  which  failure  the  initial  carrier  is  made  liable  by  the 
Carmack  amendment  of  June  29,  1906  (34  Stat,  at  L.  584,  chap.  3591,  U.  S. 
Comp.  Stat.  Supp.  1909.  p.  1149),  to  the  Interstate  Commerce  Act  of  Feb- 
ruary 4,  1887  (24  Stat,  at  L.  379,  chap.  104,  U.  S.  Comp.  Stat.  1901,  p.  3154), 
is  not  traceable  to  a  violation  of  the  statute,  redress  for  which,  under  §  9  of  the 


tic,  etc.,  R.  Co.  V.  Riverside  Mills,  219  U. 
S.  186,  55  L.  Ed.  167,  31  S.  Ct.  164,  affirm- 
ing Riverside  Mills  v.  Atlantic  Coast  Line 
R.  Co.  (C.  C),  168  Fed.  990;  Louisville, 
etc.,  R.  Co.  V.  Scott,  219  U.  S.  209,  55  L.  Ed. 
183,  31  S.  Ct.  171,  affirming  133  Ky.  724, 
118  S.  W.  990. 

The  property  of  the  initial  carrier  is  not 
taken  in  violation  of  Const.  U.  S.  Amend. 
'5,  to  pay  the  debt  of  an  independent  con- 
necting carrier  whose  negligence  may  have 
been  the  sole  cause  of  a  loss,  by  the  Car- 
mack  amendment  (Act  June  29,  1906,  c. 
3591,  §  7,  34  Stat.  593  [U.  S.  Comp.  St. 
Supp.  1909,  p.  1163]),  to  Act  Feb.  4,  1887, 
c.  104,  §  20,  24  Stat.  386  (U.  S.  Comp.  St. 
1901,  p.  3169),  under  which  an  interstate 
carrier  voluntarily  receiving  property  for 
transportation  from  a  point  in  one  state 
to  a  point  in  another  state  is  made  liable 
to  the  holder  of  the  bill  of  lading  for  a 
loss  anywhere  en  route,  in  spite  of  any  ■ 
agreement  or  stipulation  to  the  contrary, 
with  a  right  of  recovery  over  against  the 
carrier  actually  causing  the  loss,  since  the 
liability  of  the  receiving  carrier  which  re- 
sults in  such  a  case  is  that  of  a  principal 
for  the  negligence  of  his  own  agents.  At- 
lantic, etc.,  R.  Co.  V.  Riverside  Mills,  219 
U.  S.  186,  55  L.  Ed.  167,  31  S.  Ct.  164,  af- 
firming judgment  Riverside  Mills  v.  At- 
lantic Coast  Line  R.  Co.  (C.  C.  1909),  168 
F.  990;  Louisville,  etc.,  R.  Co.  v.  Scott,  219 
U.  S.  209,  55  L.  Ed.  183,  31  S.  Ct.  171,  af- 
firming judgment  (1909),  118  S.  W.  990,  133 
Ky.  724. 

The  liberty  of  contract  secured  by 
Const.  U.  S.  Amend.  5,  was  not  unconsti- 
tutionally denied  by  the  enactment  by 
congress,  in  the  exercise  of  its  power  un- 
der the  commerce  clause,  of  the  Carmack 
amendment  (Act  June  29,  1906,  c.  3591,  § 
7,  34  Stat.  593  [U.  S.  Comp.  St.  Supp.  1909, 
p.  1163])  to  Act  Feb.  4,  1887,  c.  104,  §  20, 
24  Stat.  379  (U.  S.  Comp.  St.  1901,  p.  3169), 
by  which  an  interstate  carrier  voluntarily 
receiving  property  for  transportation  from 
a  point  in  one  state  to  a  point  in  another 
state  is  made  liable  to  the  holder  of  the 
bill  of  lading  for  a  loss  anvwhere  en  route. 


in  spite  of  any  agreement  or  stipulation 
to  the  contrarjr,  with  a  right  of  recovery 
over  against  the  carrier  actually  causing 
the  loss.  Atlantic,  etc.,  R.  Co.  v.  Riverside 
Mills,  219  U.  S.  186,  55  L.  Ed.  167,  31  S. 
Ct.  164,  affirming  judgment  Riverside 
Mills  V.  Atlantic  Coast  Line  R.  Co.  (C.  C. 
1909),  168  F.  990;  Louisville,  etc.,  R.  Co. 
V.  Scott,  219  U.  S.  209,  55  L.  Ed.  183,  31  S. 
Ct.  171,  affirming  judgment  (1909),  118  S. 
W.  990,  133  Ky.  724. 

328-220.  Same — Requiring  carrier  to 
undertake  to  carry  to  destination. — Atlan- 
tic, etc.,  R.  Co.  V.  Riverside  Mills,  219  U. 
S.  186,  55  L.  Ed.  167,  31  S.  Ct.  164,  fol- 
lowed in  Louisville,  etc.,  R.  Co.  v.  Scott, 
219  U.  S.  209,  55  L.  Ed.  183,  31  S.  Ct.  171. 

Statute  construed  —  Considered  a 
through  contract. — A  carrier  voluntarily 
receiving  property  for  transportation  to 
a  point  on  another  line  in  another  state 
is,  under  the  Carmack  amendment  of  June 
29,  1906,  to  the  Interstate  Commerce  Act 
of  February  4,  1887,  conclusively  treated 
as  having  made  a  throtigh  contract  of  car- 
riage, rendering  it  liable  for  the  other 
carrier's  negligent  failure  to  deliver  the 
shipment  to  the  consignee.  It  thereby 
elected  to  treat  the  connecting  carriers  as 
its  agents,  for  all  purposes  of  transporta- 
tion and  delivery.  Galveston,  etc.,  R.  Co. 
V.  Wallace,  223  U.  S.  481,  56  L.  Ed.  516,  32 
S.  Ct.  205. 

Same — Presumptions — Burden  of  proof. 
— Proof  of  delivery  of  an  interstate  ship- 
ment to  the  initial  carrier,  and  of  failure 
to  deliver  the  same  to  the  consignee, 
raises  a  presumption  of  negligence,  so  as 
to  give  rise  to  the  liability  imposed  fey 
the  Carmack  amendment  of  June  29,  1906, 
to  the  Interstate  Commerce  Act  of  Feb- 
ruary 4,  1887,  for  loss  or  damage  caused 
by  it  or  any  other  carrier  in  the  chain  of 
transportation,  and  casts  upon  it  the  bur- 
den of  proving  that  the  loss  resulted  from 
some  cause  for  which  such  initial  carrier 
was  not  responsible  in  law  or  by  contract. 
Galveston,  etc.,  R.  Co.  v.  Wallace,  223  U. 
S.  481,  56  L.  Ed.  516,  32  S.  Ct.  205. 


720 


Vol.  VII. 


INTERSTATE,  ETC.,  COMMERCE. 


328-332 


original  act,  can  only  be  had  in  the  interstate ■  commerce  commission  or  in  the 
federal  courts,  but  such  liability  may  be  enforced  by  an  action  in  a  state  court 
of  competent  jurisdiction.--'^ 

hh.  Exclusion  of  Imports — Establishment  of  Standards. — See  note  35. 

ii.  Fisheries. — See  ante,  "Exclusion  of  Imports — Establishment  of  Standards," 
II,  A,  1,  b,  (3),  (b),  hh.     See,  also,  ante,  Fish  and  Fisheries,  p.  583. 

jj.  Immigration. — See  note  40. 


328-22d.  Enforcement  of  act — Jurisdic- 
tion of  state  courts. — Galveston,  etc.,  R. 
Co.  V.  Wallace,  223  U.  S.  481,  56  L.  Ed.  516, 
32  S.  Ct.  205. 

Th£  jurisdiction  of  the  state  court  was 
attacked,  first,  on  the  ground  that  §  9  of 
the  original  Act  of  1887  provided  the  per- 
sons damaged  by  a  violation  of  the  stat- 
ute "might  make  complaint  before  the 
commission  *  *  *  or  in  any  district  or 
circuit  court  of  the  United  States."  24 
Stat,  at  L.  379,  chap.  104,  U.  S.  Comp.  Stat. 
1901,  p.  3154.  It  was  contended  that 
Texas,  etc.,  R.  Co.  v.  Abilene  Cotton  Oil 
Co.,  204  U.  S.  426,  51  L.  Ed.  553,  27  S.  Ct. 
350,  ruled  that  this  jurisdiction  was  ex- 
clusive, and  from  that  it  was  argued  that 
no  suit  could  be  maintained  in  a  state 
court  on  any  cause  of  action  created  ei- 
ther by  the  original  Act  of  1887  or  by  the 
amendment  of  1906.  But  damage  caused 
by  failure  to  deliver  goods  is  in  no  way 
traceable  to  a  violation  of  the  statute,  and 
is  not,  therefore,  within  the  provisions  of 
§§  8,  9  of  the  act  to  regulate  commerce. 
Galveston,  etc.,  R.  Co.  v.  Wallace,  223  U. 
S.  481,  56  L.  Ed.  516,  32  S.  Ct.  205;  Atlan- 
tic, etc.,  R.  Co.  f.  Riverside  Mills.  219  U. 
S.  186,  20S,  55  L.   Ed.  167,  31   S.   Ct.  164. 

331-35.  Exclusion  of  imports — Vested 
or  property  right  to  engage  in  foreign 
trade. — As  a  result  of  the  complete  power 
of  congress  over  foreign  commerce,  it 
necessarily  follows  that  no  individual  has 
a  vested  right  to  trade  with  foreign  na- 
tions, which  is  so  broad  in  character  as  to 
limit  and  restrict  the  power  of  congress 
to  determine  what  articles  of  merchandise 
may  be  imported  into  this  country,  and 
the  terms  upon  which  a  right  to  import 
may  be  exercised.  This  being  true,  it  re- 
sults that  a  statute  which  restrains  the  in- 
troduction of  particular  goods  into  the 
United  States  from  considerations  of  pub- 
lic policy  does  not  violate  the  due  proc- 
ess clause  of  the  constitution.  Oceanic 
Steam  Nav.  Co.  7'.  Stranahan,  214  U.  S. 
320,  53  L.  Ed.  1013,  29  S.  Ct.  671. 

Congress,  by  an  exertion  of  its  power 
to  regulate  foreign  commerce,  has  the  au- 
thority to  forbid  merchandise  carried  in 
such  coinmerce  from  entering  the  United 
States.  Buttfield  f.  Stranahan,  192  U.  S. 
470,  493,  48  L.  Ed.  525,  24  S.  Ct.  341,  and 
authorities  there  collected.  Indeed,  as 
pointed  out  in  the  Buttfield  Case,  so  com- 
plete is  the  authority  of  congress  over  the 
subject  that  no  one  can  be  said  to  have  a 
vested  right  to  carry  on  foreign  commerce 

12    U    S    Enc— 46  7 


with  the  United  States.  The  Abby  Dodge, 
223  U.   S.  166,  56  L.   Ed.  390,  32  S.  Ct.  310. 

Same — Regulation  of  fisheries — Exclu- 
sion of  sponges. — Congress  could  validly 
prohibit,  as  it  did  by  the  Act  of  June  20, 
1906,  the  landing  at  any  port  or  place  in 
the  United  States  of  sponges  taken  be- 
tween certain  dates  outside  of  state  terri- 
torial waters.  The  Abby  Dodge,  223  U. 
S.  166.  56  L.  Ed.  390,  32  S.  Ct.  310. 

Since  the  bed  of  all  tide  waters  within 
state  territorial  limits  is  owned  by  the 
state  and  is  subject  to  its  general  jurisdic- 
tion, sovereignty  and  eminent  domain,  the 
taking  or  gathering  of  sponges  from  land 
under  water  within  state  territorial  limits 
is  not  subject  to  congressional  control. 
The  Abby  Dodge,  223  U.  S.  166,  56  L.  Ed. 
390,  32   S.   Ct.  310. 

Only  sponges  taken  outside  of  state 
territorial  limits  can  be  deemed  included 
in  the  provisions  of  the  Act  of  June  20, 
1906  (34  Stat,  at  L.  313,  chap.  3442,  U.  S. 
Comp.  Stat.  Supp.  1909.  p.  1087),  making 
it  unlawful  to  land,  deliver,  cure  or  offer 
for  sale  at  any  port  or  place  in  the  United 
States  any  sponges  taken  by  means  of  div- 
ing or  diving  apparatus  froni  the  waters 
of  the  Gulf  of  ]\Iexico  or  Straits  of  Flor- 
ida, since  any  other  construction  would 
plainly  render  the  statute  unconstitutional, 
as  in  excess  of  the  powers  of  congress. 
The  Abby  Dodge,  223  U.  S.  166,  56  L.  Ed. 
390,  32  S.  Ct.  310. 

Sam  e^ — L  i  b  e  1 — Allegations. — A  libel 
charging  a  vessel  with  violating  the  Act 
of  June  20,  1906,  by  landing  at  a  Florida 
port  sponges  taken  by  means  of  diving  or 
diving  apparatus  from  the  waters  of  the 
Gulf  of  ilexico  or  Straits  of  Florida,  must 
negative  the  fact  that  the  sponges  may 
have  been  taken  from  waters  within  the 
territorial  limits  of  the  state.  The  Abby 
Dodge,  223  U.  S.  166,  56  L.  Ed.  390,  32  S. 
Ct.  310. 

332-40.  Power  to  regulate  immigration. 
— See,  generally,  ante.  ALIENS,  p.  18; 
CHINESE  EXCLUSION  ACTS.  p.  232; 
CONSTITUTIONAL  LAW,  p.  264. 

Harboring  alien  woman  for  immoral 
purposes.— Since  the  suppression  of  crime 
and  immorality  within  the  states  is  a  mat- 
ter coming  within  the  police  power  of  the 
states,  congress  has  not  the  power  to  en- 
act the  provisions  of  the  Act  of  February 
20,  1907,  34  Stat,  at  L.  898,  chap.  1134,  §  3, 
for  the  criminal  punishment  of  the  mere 
keeping,  maintaining,  supporting,  or  har- 
boring,   for    the     purpose    of   prostitution 


333 


INTERSTATE,  ETC.,  COMMERCE. 


\o\.  VIL 


nn.  Monopolies  and  Trusts. — See  post,  jMonopoi^iKs  and  Corporate;  Trusts. 
00.  Private  Contracts. — See  note  48. 


any  alien  woman  within  three  years  after 
she  shall  have  entered  the  United  States. 
Keller  v.  United  States,  213  U.  S.  138,  53 
L.  Ed.  737,  29  S.  Ct.  470. 

While  the  keeping  of  a  house  of  ill 
fame  is  offensive  to  the  moral  sense,  yet 
that  fact  must  not  close  the  eye  to  the 
question  whether  the  power  to  punish 
therefor  is  delegated  to  congress  or  is  re- 
served to  the  state.  Jurisdiction  over 
such  an  ofifense  comes  within  the  ac- 
cepted definition  of  the  police  power. 
Speaking  generally,  that  power  is  reserved 
to  the  states,  for  there  is  in  the  constitu- 
tion no  grant  thereof  to  congress.  Keller 
V.  United  States,  213  U.  S.  138,  53  L.  Ed. 
737,    29    S.    Ct.    470. 

333-48.  Private  contracts  obstructing 
or  regulating  commerce. — No  contract 
can  properly  be  carried  into  effect,  which 
was  originally  made  contrary  to  the  pro- 
visions of  law,  or  which,  being  made  con- 
sistently with  the  rules  of  law  at  the  time, 
has  become  illegal  in  virtue  of  some  sub- 
sequent law.  Louisville,  etc.,  R.  Co.  t'. 
Mottley,  219  U.  S.  467,  55  L.  Ed.  297,  31 
S.    Ct.   265. 

In  the  Legal  Tender  Cases,  the  court, 
referring  to  the  fifth  amendment,  which 
forbids  the  taking  of  private  property  for 
public  use  without  just  compensation  or 
due  process  of  law,  said:  "That  provision 
has  always  been  understood  as  referring 
only  to  a  direct  appropriation,  not  to  con- 
sequential injuries  resulting  from  the  ex- 
ercise of  lawful  power.  It  has  never  been 
supposed  to  have  any  bearing  upon  or  to 
inhibit  laws  that  indirectlj^  work  harm 
and  loss  to  individuals."  Louisville,  etc., 
R.  Co.  V.  Mottley,  219  U.  S.  467,  55  L. 
Ed.  297,  31  S.   Ct.  265. 

In  the  Addyston  Pipe,  etc.,  Co.  v. 
United  States,  175  U.  S.  211,  44  L.  Ed. 
136,  20  S.  Ct.  96,  the  court  said:  "We  do 
not  assent  to  the  correctness  of  the  propo- 
sition that  the  constitutional  guaranty  of 
liberty  to  the  individual  to  enter  into 
private  contracts  limits  the  power  of 
congress,  and  prevents  it  from  legislating 
upon  the  subject  of  contracts''  relating 
to  interstate  commerce.  Again:  "But  it 
has  never  been,  and  in  our  opinion  ought 
not  to  be,  held  that  the  word  'liberty' 
included  the  right  of  an  individual  to  en- 
ter into  private  contracts  upon  all  sub- 
jects, no  matter  what  their  nature,  and 
wholly  irrespective  (among  other  things) 
of  the  fact  that  they  would,  if  performed, 
result  in  the  regulation  of  interstate  com- 
merce, and  in  the  violation  of  an  act  of 
congress  upon  that  subject.  The  pro- 
vision in  the  constitution  does  not,  as  we 
believe,  exclude  congress  from  legislating 
with  regard  to  contracts  of  the  above  na- 
ture,  while    in   the   exercise   of   its   consti- 


tutional right  to  regulate  commerce 
among  the  states  *  *  *.  Anything  which 
directly  obstructs  and  regulates  that 
commerce  which  is  carried  on  among  the 
states,  whether  it  is  state  legislation  or 
private  contracts  between  individuals  or 
corporations,  should  be  subject  to  the 
power  of  congress  in  the  regulation  of 
that  commerce."  Louisville,  etc.,  R.  Co. 
V.  Mottley,  219  U.  S.  467,  55  L.  Ed.  297, 
31  S.  Ct.  265.  , 

After  the  Interstate  Commerce  Act 
came  into  effect,  forbidding  special  rates, 
rebates,  undue  preferences  and  unequal 
facilities,  payment  of  transportation  in 
anything  but  money,  or  any  departure 
from  the  printed  schedules  required  by 
that  act,  no  contract,  whether  future  or 
existing,  that  was  inconsistent  with  the 
regulations  established  by  the  act,  could 
be  enforced  in  any  court.  All  such  con- 
tracts must  necessarily  be  regarded  as 
having  been  made  subject  to  the  possi- 
bility that  at  some  future  time  congress 
might  so  exert  its  whole  constitutional 
power  in  regulating  interstate  commerce 
as  to  render  those  agreements  unenforce- 
able or  to  impair  their  value.  That  the 
exercise  of  such  power  may  be  hampered 
or  restricted  to  any  extent  by  contracts 
previously'  made  between  individuals  or 
corporations  can  not  be  admitted,  and 
such  statute  is  not  unconstitutional,  either 
as  impairing  the  obligation  of  contracts, 
depriving  the  parties  thereto  of  their 
property  or  of  their  liberty  of  contract 
without  due  process  of  law,  as  an  inter- 
ference with  vested  rights,  or  as  violating 
the  constitutional  inhibition  against  ex 
post  facto  laws.  Louisville,  etc.,  R.  Co. 
V.  Mottley,  219  U.  S.  467,  55  L.  Ed.  297, 
31  S.  Ct.  265;  New  York,  etc.,  R.  Co.  v. 
United  States,  No.  2,  212  U.  S.  500,  505, 
53  L.  Ed.  624,  29  S.  Ct.  309;  Armour, 
Packing  Co.  v.  United  States,  209  U.  S. 
56,  81.  52  L.  Ed.  681.  28  S.  Ct.  428;  Ameri- 
can Exp.  Co.  V.  United  States.  212  U.  S. 
522.   533,   53   L.   Ed.  635,  29   S.   Ct.   315. 

"The  act  to  regulate  commerce  is  a 
general  law,  and  contracts  are  always  li- 
able to  be  more  or  less  affected  by  gen- 
eral laws,  even  when  in  no  way  referred 
to  *  *  *.  But  this  incidental  effect  of  the 
general  law  is  not  imderstood  to  make  it 
a  law  impairing  the  obligation  of  con- 
tracts. It  is  a  necessary  effect  of  any 
considerable  change  in  the  public  laws. 
If  the  legislature  had  no  power  to  alter 
its  police  laws  when  contracts  would  be 
affected,  then  the  most  important  and 
valuable  reforms  inight  be  precluded  by 
the  simple  device  of  entering  into  con- 
tracts for  the  purpose.  No  doctrine  to  that 
effect  would  be  even  plausible,  much  less 
sound    and    tenable."     Louisville,    etc.,    R. 


722 


Vol.  MI. 


IXTERSVATB,  ETC.,  COMMERCE. 


338-345 


ss.  Wharves. — As  to  the  conferring  of  an  undue  preference  through  the  lease 
to  a  single  shipper  of  wharves  and  piers  belonging  to  a  terminal  company,  see 
post,  "Lease  or  Monopoly  of  Wharfage  Facilities  to  Favored  Shipper,"  IV,  E, 
2,  c.     See,  also,  ante,  "When  Protection  Attaches,"  I,  A,  4,  a. 

tt.  Xavigation  and  Navigable  Waters — fbb)  Control  of  Xavigable  Waters  of 
United  States — aaa.  In   General. — See  note  76. 

ccc.  Improvement  of  Navigability  of  Jl'aters — (aaa)  In  General. —  ^ee  ante, 
Due  Process  of  Lav^^  p.  475 ;  Navigable;  Waters  ;  Waters  and  Watercourses. 

(bbb)  Prevention  or  Remoz'al  of  Obstructions. — See  ante,  DuE  Process  of 
Lav^,  p.  475. 

(cc)  Regulation  of  Particular  Matters — iii.  Liability  for  Marine  Torts. — See 
post,  "Marine  Torts,"  II,  A,  2,  d,  (19),  (c),  bb,  (ee)',  eee. 

uu.  Houses  of  Ill-Fame. — See  ante,  "Immigration,"  II,  A,  1,  b,  (3),  (b),  jj. 

2.  Power  of  States — a.  In  General— (I)  Right  to  Engage  in  Not  Derived 
from  the  State. — To  carry  on  interstate  commerce  is  not  a  franchise  or  a  priv- 
ilege granted  by  the  state;  it  is  a  right  which  every  citizen  of  the  United  States 
is  entitled  to  exercise  under  the  constitution  and  laws  of  the  United  States ;  and 
the  accession  of  mere  corporate  facilities,  as  a  matter  of  convenience  in  carrying 
on  their  business,  can  not  have  the  effect  of  depriving  them  of  such  right,  unless 
congress  should  see  fit  to  interpose  some  contrary  regulation  on  the  subject.^^'' 


Co.  V.  Mottley,  219'  U.  S.  467,  55  L.  Ed. 
297,  31   S.    Ct.  265. 

If  the  contract  in  question  would  have 
been  illegal  if  made  after  the  passage  of 
the  commerce  act,  it  can  not  now  be  en- 
forced against  the  railroad  companj',  even 
though  valid  when  made.  If  that  prin- 
ciple be  not  sound,  the  result  would  be 
that  individuals  and  corporations  could, 
by  contracts  between  themselves,  in  an- 
ticipation of  legislation,  render  of  no 
avail  the  exercise  by  congress,  to  the  full 
extent  authorized  by  the  constitution,  of 
its  power  to  regulate  commerce.  No 
power  of  congress  can  be  thus  restricted. 
Louisville,  etc.,  R.  Co.  v.  Mottley.  219  U. 
S.   467,   55    L.   Ed.   297,   .31    S.   Ct.  2^65. 

These  principles  have  been  applied  to 
invalidate  to  prevent  the  carrying  out  of 
contracts  for  free  annual  passes  for  life, 
issued  in  settlement  of  suits  for  dam- 
ages. Louisville,  etc.,  R.  Co.  v.  Mottley, 
219  U.  S.  467,  55  L.  Ed.  297,  31  S.  Ct.  265; 
and  to  contracts,  lawful  when  entered 
into,  for  special  rates,  rebates,  etc.  New 
York,  etc.,  R.  Co.  v.  United  States,  No. 
2.  212  U.  S.  500,  505,  53  L.  Ed.  624,  29  S. 
Ct.  309;  Armour  Packing  Co.  v.  United 
States.  209  U.  S.  56.  81,  52  L.  Ed.  681,  694. 

28  S.  Ct.  428;  American  Exp.  Co.  v.  United 
States,   212   U.    S.   522.   533,   53    L.    Ed.   635, 

29  S.  Ct.  315.  See,  also,  post,  "Embraces 
All  Manner  of  Carriage,  Gratuitous  or 
Otherwise,"  IV,  D,  1,  a^^,  (4);  "Special 
Contract  Waiving,  Alodifying,  or  Annull- 
ing Provisions  of  Act,"  TV,  D,  1,  aVz,  (5). 
"Free  Carriage  or  Reduced  Rates,"  IV,  J. 
And  see  ante,  CONSTITUTIONAL  LAW, 
p.  264;  DUE  PROCESS  OF  LAW,  p.  475. 

As  to  contracts,  future  and  existing, 
designed  or  operating  to  waive  or  evade 


the  provisions  of  the  Employers'  Liabilitj' 
Act,  especially  as  to  the  release  of  dam- 
ages through  the  acceptance  of  benefits 
under  a  contract  of  membership  in  a  rail- 
way relief  department,  see  ante,  "Em- 
ployers' Liability  Acts,"'  II,  A,  1,  b,  (3), 
dd,  (cc^/S),  eee. 

338-76.  Commercial  power  comprehends 
control  of  navigable  waters. — That  the 
power  of  congress  to  regulate  commerce 
among  the  states  involves  the  control  of 
the  navigable  waters  of  the  United  States 
over  which  such  commerce  is  conducted 
is  undeniable;  but  it  is  equally  well  set- 
tled that  the  control  of  the  state  over  its 
internal  commerce  involves  the  right  to 
control  and  regulate  navigable  streams 
within  the  state  until  congress  acts  on  the 
subject.  This  has  been  the  uniform  hold- 
ing of  the  federal  court  since  Wilson  v. 
Blackbird  Creek  :\Iarsh  Co.,  2  Pet.  245,  7 
L.  Ed.  412;  Oilman  v  Philadelphia.  3 
Wall.  713,  18  L.  Ed.  96;  Escanaba  Co. 
V.  Chicago,  107  U.  S.  678,  683.  27  L. 
Ed.  442,  2  S.  Ct.  185;  Coyle  v.  Smith,  221 
U.  S.  559,  55  L.  Ed.  853,  31  S.  Ct.  688. 
See,  also,  post,  "Navigation  and  Naviga- 
ble Waters,"  II,  A,  2,  d,  (19).  See,  gen- 
erally, ante,  CONSTITUTIONAL  LAW, 
p.  264;  DUE  PROCESS  OF  LAW,  p. 
475;  post,  NAVIGABLE  WATERS; 
WATERS  AND  WATERCOURSES. 

345-13a.  Right  to  engage  in  not  derived 
from  the  state. — International  Textbook 
Co.   v.   Pigg.   217    U.    S.   91.   54   L.    Ed.   678, 

30  S.  Ct.  481;  International  Textbook  Co. 
V.  Peterson,  218  U.  S.  664,  54  L.  Ed.  1201, 

31  S.  Ct.  225;  West  v.  Kansas  Natural  Gas 
Co.,  221  U.  S.  229,  55  L.  Ed.  716,  31  S.  Ct. 
564. 

The  right  to  engage  in  interstate  com- 


r23 


345-346 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


(2)  Mere  Desire  to  Use  Property  in  Commerce  Not  Sufficient. — As  to  whether 
one  can  acquire  rights  protected  by  the  interstate  commerce  clause  merely  through 
his  desire  to  use  property  in  commerce  among  the  states,  see  ante,  "When  Pro- 
tection Attaches,"  I,  A,  4,  a. 

(3)  Power  of  State  Divided  into  Three  Classes. — The  power  of  the  state  over 
the  general  subject  of  commerce  has  been  divided  into  three  classes:  First, 
those  in  which  the  power  of  the  state  is  exclusive;  second,  those  in  which  the 
states  may  act  in  the  absence  of  legislation  by  congress ;  third,  those  in  which 
the  action  of  congress  is  exclusive  and  the  state  can  not  act  at  all.^-^'' 

(4)  No  Distinction  betit'een  Regulations  Based  upon  the  Common  Laiv  and 
Those  Based  upon  Statutes. — A  regulation  of  interstate  commerce  which  would 
be  valid  if  based  upon  the  common  law  of  the  state  is  no  less  valid  because  made 
by  a  state  statute. ^2*= 

b.  Where  Congress  Has  Acted — (1)  In  General. — See  note  14. 
(2)  Conflicting  State  and  Federal  Legislation. — See  notes  15,  16,  18, 


merce  is  not  the  gift  of  a  state,  and  it  can 
not  be  regulated  or  restrained  by  a  state; 
nor  can  a  state  exclude  from  its  limits  a 
corporation  engaged  in  such  commerce. 
West  V.  Kansas  Natural  Gas  Co.,  221  U. 
S.    329,    55    L.    Ed.    716,    31    S.    Ct.    564. 

345-13b.  Power  of  state  divided  into 
three  classes. — Southern  R.  Co.  v.  Reid, 
223  U.  S.  424,  56  L.  Ed.  257,  32  S.  Ct.  140; 
Covington,  etc.,  Bridge  Co.  v.  Kentucky, 
154  U.  S.  204,  209,  38  L.  Ed.  962,  14  S. 
Ct.  1087;  Western  Union  Tel.  Co.  v. 
James,  162  U.  S.  650,  655,  40  L.  Ed.  1105, 
16   S.   Ct.  934. 

345-13C.  No  distinction  between  regu- 
lations based  upon  common  law  and  those 
based  upon  statute. — Western  Union  Tel. 
Co.  z'.  Commercial  Milling  Co.,  218  U.  S 
406,  54  L.  Ed.  1088,  31  S.  Ct.  59.  affirming 
judgment  in  Commercial  Milling  Co.  z'. 
Western  Union  Telegraph  Co.  (1908),  115 
N.   W.   698,   151    Mich.   425. 

We  can  not  concede  such  effect  to  the 
common  law  and  deny  it  to  a  statute.  Both 
are  rules  of  conduct  proceeding  from  the 
supreine  power  of  the  state.  That  one  is 
unwritten  and  the  other  written  can  make 
no  difference  in  their  validity  or  efifect. 
Western  Union  Tel.  Co.  7'.  Commercial 
Milling  Co.,  218  U.  S.  406,  54  L.  Ed.  1088, 
31    S.   Ct.  59. 

346-14.  Where  congress  has  acted — In 
general. — Inhibitive  congressional  legisla- 
tion is  not  essential  to  exclude  state  legis- 
lation upon  incidental  matters  relating  to 
interstate  commerce  with  respect  to  which 
the  states  and  congress  have  a  concurrent 
power.  It  is  sufficient  if  the  congres- 
sional legislation  occupies  the  field  of 
regulation.  Southern  R.  Co.  v.  Reid,  222 
U.  S.  424,  56  L.  Ed.  257.  32  S.  Ct.  140,  re- 
versing judgment  (1910),  Reid  z'.  South- 
ern Ry.  Co.,  69  S.  E.  618,  153  N.  C.  490; 
Southern  R.  Co.  v.  Reid,  222  U.  S.  444,  56 
L.  Ed.  263,  32  S.  Ct.  145,  reversing  judg- 
ment (1909),  Reid  &  Beam  v.  Southern 
Ry.  Co.,  64  S.  E.  874,  150  N.  C.  753,  17 
Ann.  Cas.  247. 


346-15.  State  laws  conflicting  with  con- 
gressional legislation  void. — The  grant  of 
power  to  congress  in  the  constitution  to 
regulate  commerce  with  foreign  nations 
and  among  the  several  states,  it  is  con- 
ceded, is  paramount  over  all  legislative 
powers  which,  in  consequence  of  not  hav- 
ing been  granted  to  congress,  are  re- 
served to  the  states.  It  follows  that  any 
legislation  of  a  state,  although  in  pur- 
suance of  an  acknowledged  power  re- 
served to  it,  which  conflicts  with  the  ac- 
tual exercise  of  the  power  of  congress 
over  the  subject  of  commerce,  must  give 
way  before  the  supremacy  of  the  national 
authority.  In  cases  of  concurrent  juris- 
diction, state  laws  and  regulations  are 
superseded  when  the  power  of  congress 
is  exercised  in  such  a  manner  as  to  con- 
flict therewith;  and  this  results  as  well 
from  the  nature  of  the  government  as 
from  the  words  of  the  constitution. 
Second  Employers'  Liability  Cases,  223 
U.  S.  1,  56  L.  Ed.  327,  32  S.  Ct.  169;  Gulf, 
etc.,  R.  Co.  V.  Heflev,  158  U.  S.  98,  104, 
39  L.  Ed.  910,  15  S.  Ct.  802;  Southern  R. 
Co.  V.  Reid,  222  U.  S.  424,  56  L.  Ed.  257, 
32  S.  Ct.  140;  Northern  Pac.  R.  Co.  v. 
Atkinson,  222  U.  S.  370,  56  L.  Ed.  237, 
32  S.  Ct.  160;  Chicago,  etc.,  R.  Co.  v. 
United  States,  219  U.  S.  486,  55  L.  Ed. 
305,  31  S.  Ct.  272;  Keller  v.  United  States, 
213  U.  S.  138,  53  L.  Ed.  737,  739,  29  S. 
Ct.  470;  Adams  Exp.  Co.  v.  Common- 
wealth, 214  U.  S.  218,  53  L.  Ed.  972,  29 
S.    Ct.    633. 

346-16.  Source  of  power  immaterial. — 
See  note  15  above. 

346-18.  Conflict  must  be  irreconcilable. 
— A  statute  enacted  in  execution  of  a  re- 
served power  of  the  state  is  not  to  be 
regarded  as  inconsistent  with  an  act  of 
congress  passed  in  the  execution  of  a 
clear  power  iinder  the  constitution,  un- 
less the  repugnance  or  conflict  is  so  direct 
and  positive  that  the  two  acts  can  not 
be  reconciled  or  stand  together.  Savage 
V.  Jones,  225  U.  S.  501,  56  L.  Ed.  1182,  32 


724 


Vol.  A'll. 


INTERSTATE.  ETC.,  COMMERCE. 


346 


In  Case  of  Conflict  between  Fundamental  Principles  of  the  Constitu- 
tion.— \\'here  fundamental  principles  of  the  constitution  are  of  equal  dignity, 
neither  must  be  so  enforced  as  to  nullify  or  substantially  impair  the  other. ^^"^ 

Where  Same  Instrumentality  Is  Engaged  in  Both  Intrastate  and  In- 
terstate Commerce. — Where  the  same  instrumentality,  as  in  case  of  a  railroad, 
is  engaged  in  both  intrastate  and  interstate  transportation,  it  is  subject  to  both 
state  and  congressional  regulation,  and  the  full  control  of  each  over  the  com- 
merce subject  to  its  dominion  must  be  preserved. ^^"^ 

(3)  Where  Congress  Has  Not  Occupied  the  Full  Sphere  of  Its  Jurisdiction. — 
The  intent  to  supersede  the  exercise  by  the  state  of  its  police  power  as  to  mat- 
ters not  covered  by  the  federal  legislation  is  not  to  be  inferred  from  the  mere 
fact  that  congress  has  seen  tit  to  circumscribe  its  regulation  and  to  occupy  a 
limited  field.  In  other  words,  such  intent  is  not  to  be  implied  unless  the  act  of 
congress,  fairly  interpreted,  is  in  actual  conflict  with  the  law  of  the  state.  This 
principle  has  had  abundant  illustration. ^^'^ 


S.  Ct.  715;  Sinnot  v.  Davenport,  22  How. 
227,  243,  16  L.  Ed.  243. 

"It  should  never  be  held  that  congress 
intends  to  supersede  or  by  its  legislation 
suspend  the  exercise  of  the  police  powers 
of  the  states,  even  when  it  may  do  so, 
unless  its  purpose  to  affect  that  result  is 
clearly  manifested.  This  court  has  said — 
and  the  prmciple  has  been  often  re- 
affirmed— that  "in  the  application  of  this 
principle  of  supremacy  of  an  act  of  con- 
gress in  a  case  where  the  state  law  is 
but  the  exercise  of  a  reserved  power,  the 
repugnance  or  conflict  should  be  direct 
and  positive,  so  that  the  two  acts  could 
not  be  reconciled  or  consistently  stand 
together."  "  Savage  v.  Jones,  22.5  U.  S. 
501,  56  L.  Ed.  1182,  32  S.  Ct.  715;  Asbell 
7'.  Kansas,  209  U.  S.  251,  52  L.  Ed.  778. 
28    S.    Ct.   485. 

Determined  by  operation  and  effect,  not 
by  proclaimed  purpose  of  act. — See  post, 
"In  General."  II,  A,  2,  d,   (2).  (a). 

346-18a.  In  case  of  conflict  between 
fundamental  principles  of  the  constitu- 
tion.—Dick  z:  United  States,  208  U.  S. 
340,   353,   52   L.   Ed.   520,   28   S.   Ct.   399. 

Thus  it  is  held  that  while  congress  has 
power  to  regulate  commerce  with  the  In- 
dian tribes,  and  that  such  power  is  su- 
perior and  paramount  to  the  authority  of 
the  state  within  whose  limits  such  tribes 
may  be,  yet  in  regulating  such  commerce, 
congress  may  have  regard  to  the  general 
authority  which  the  state  has  over  all 
persons  and  things  within  its  jurisdiction; 
and  that  the  authority  of  the  state,  on  the 
other  hand,  can  not  be  so  exerted  as  to 
impair  the  power  of  congress  to  regulate 
commerce  with  the  Indian  tribes.  Dick 
r.  United  States,  208  U.  S.  340,  353,  52  L. 
Ed.    520.   2S    S.    Ct.    399. 

346-18b.  Where  same  instrumentality  is 
engaged  in  both  intrastate  and  interstate 
commerce. — Missouri  Pac.  R.  Co.  :•.  Lara- 
bee  Flour  ^lills  Co.,  211  U.  S.  612,  620, 
53    L.    Ed.   352,   29    S.   Ct.   214. 

"The  roads  are,  therefore. ,  engaged  in 
both  interstate  commerce  and  that  within 


the  state.  In  the  former  they  are  sub- 
ject to  regulation  of  congress,  in  the 
latter  to  that  of  the  state,  and  to  enforce 
the  proper  relation  between  congress  and 
the  state  the  full  control  of  each  over  the 
commerce  subject  to  its  dominion  must 
be  preserved."  ]\Hssouri,  etc.,  R.  Co.  i'. 
Larabee  Flour  Mills  Co.,  211  U.  S.  612, 
620.  53  L.  Ed.  352,  29  S.  Ct.  214;  Fairbank 
7'.  United  States.  181  U.  S.  283.  45  L.  Ed. 
862,   21    S.    Ct.    648. 

346-18C.  Where  congress  has  not  oc- 
cupied the  full  sphere  of  its  jurisdiction. 
— Savage  :■.  Jones.  225  U.  S.  501.  533,  J6 
L.  Ed.  1182,  32  S.  Ct.  715,  followed  in 
Standard  Stock  Food  Co.  i:  Wright,  225 
U.  S.  540,  56  L.  Ed.  1197,  32  S.  Ct.  784; 
Asbell  V.  Kansas.  209  U.  S.  251,  53  L.  Ed. 
778.  28  S.  Ct.  485;  Northern  Pac.  R.  Co. 
f.  Atkinson,  222  U.  S.  370.  379,  56  L.  Ed. 
237,  32  S.  Ct.  160;  Southern  R.  Co.  z:  Reid, 
222  U.  S.  424,  442.  56  L.  Ed.  257,  32  S.  Ct. 
140;  Chicago,  etc.,  R.  Co.  z:  Solan,  169  U. 
S.  133,  42  L.  Ed.  688,  18  S.  Ct.  289;  :\Iis- 
souri.  etc..  R.  Co.  z:  Haber,  169  U.  S.  613, 
42    L.    Ed.    878.    18    S.    Ct.    488. 

Extent  of  powers  delegated  to  inter- 
state commerce  commission. — The  mere 
delegation  by  congress  to  the  interstate 
commerce  commission  of  certain  powers 
is  not  equivalent  to  specific  action  by 
congress,  in  respect  lo  the  particular  mat- 
ters involved,  which  prevents  a  state 
from  making  regulations  conducive  to 
the  welfare  of  its  citizens  that  may  in- 
directly affect  commerce.  Missouri  Pac. 
R.  Co.  V.  Larabee  Flour  Mills  Co.,  211  U. 
S.  612.  53  L.  Ed.  352.  29  S.  Ct.  214. 

Full  sphere  of  power  not  covered  by 
Food  and  Drugs  Act. — Congress  did  not, 
l)y  the  passage  of  the  Food  and  Drugs 
Act  of  June  30.  1906  (34  Stat,  at  L.  768, 
chap.  3915,  U.  S.  Comp.  Stat.  Supp.  1911, 
p.  1354),  for  the  prevention  of  adultera- 
tion and  misbranding  of  foods  and  drugs 
when  the  subject  of  interstate  commerce, 
preclude  the  enactment  of  Ind.  Acts  of 
1907,  chap.  206.  prohil)iting  sales  of_  con- 
centrated commercial  feeding  stuffs  in  the 


725 


347-351 


INTERSTATE,  ETC.,  COMMERCE. 


\o\.  VII. 


c.    Where  Congress  Has  Not  Acted — (1)    In  General. — See  note  20. 

(3)  Subjects  of  Local  Concern  and  Local  Police  Regulations — (b)  Particular 
Matters  Over  Which  State  Aiuthority  May  Be  Exerted. — See  post,  "State  Stat- 
utes Affecting  Interstate  and  Foreign  Commerce,"  II,  A,  2,  d,  et  seq.  See,  also, 
post.  Police  Power. 

(c)  Police  Regidations — aa.  Police  Power  of  States  Not  Surrendered  by  Grant 
of  Commercial  Power  to  Congress. — See,  generally,  post.  Police;  Power. 

bb.  General  Nature  of  Police  Pozver. — See  post,  Police  Power. 

cc.  Police  Power  as  Limited  by  Commercial  PoT^vr  of  Congress. — See  notes 
49,  50,  64. 


original  packages  unless  there  be  compli- 
ance with  its  requirements  as  to  inspec- 
tion and  analysis  and  the  disclosure  of 
the  ingredients,  including  the  minimum 
percentage  of  crude  fat  and  crude  pro- 
tein, and  the  maximum  percentage  of 
crude  fiber,  and  with  its  incidental  pro- 
visions for  the  filing  of  a  certificate,  for 
registration,  and  for  labels  and  stamps. 
Savage  v.  Jones,  225  U.  S.  501,  56  L.  Ed. 
1182, "^32    S.   Ct.  715. 

347-20.  Inaction  equivalent  to  declara- 
tion that  states  may  not  regulate.— The 
inaction  of  congress  is  a  declaration  of 
freedom  from  state  interference  with  the 
transportation  of  articles  of  legitimate 
interstate  commerce.  West  v.  Kansas 
Natural  Gas  Co.,  221  U.  S.  229,  55  L.  Ed. 
716,   31    S.    Ct.    564. 

For  example,  it  is  held  that  natural  gas, 
when  reduced  to  possession,  is  a  com- 
modity which  belongs  to  the  owner  of 
the  land,  and  may  be  the  subject  of  botli 
intrastate  and  interst-^te  commerce,  and 
that  the  state  can  not  permit  intrastate 
traffic  therein  and  at  the  same  time  pro- 
hibit interstate  traffic  therein,  and  that  as 
to  the  latter  the  inaction  of  congress  is 
equivalent  to  a  declaration  of  freedom 
from  state  interference.  West  v.  Kansas 
Natural  Gas  Co.,  221  U.  S.  229.  55  L.  Ed. 
716,  31  S.  Ct.  564.  affirming  Kansas  Nat- 
ural Gas  Co.  V.  Haskell  (C.  C),  172  Fed. 
545. 

Power  of  congress  not  lost  by  nonuser. 
— The  inaction  of  congress  in  nowise  af- 
fects its  power  over  the  subject.  Second 
Employers'  Liability  Cases,  223  U.  S.  1, 
56   L.   Ed.  327,  32   S.   Ct.   169. 

The  power  to  regulate  commerce  pos- 
sessed by  congress  is,  in  the  nature  of 
things,  ever-enduring,  and  therefore  the 
right  to  exert  it  today,  tomorrow,  and  at 
all  times  in  its  plenitude  must  remain  free 
from  restrictions  and  limitations  arising 
or  asserted  to  arise  by  state  laws,  whether 
enacted  before  or  after  _  congress  has 
chosen  to  exert  and  apply  its  lawful  power 
ta  regulate.  Attorney  General  v.  Dela- 
ware, etc.,  Co.,  213  U.  S.  366,  53  L.  Ed. 
S35.  29   S.  Ct.  527. 

On  the  other  hand,  the  waters  of  a 
flowing  stream,  when  sought  to  be  di- 
verted and  conveyed  by  means  of  a  canal, 
:iume  or  ditch  into  another  state  for  use 


therein  are  held  not  to  be  a  legitimate  sub- 
ject of  commerce  in  the  transportation  of 
which  a  citizen  may  engage  as  of  right, 
and  that  the  state  may  forbid  their  trans- 
portation beyond  its  limits  even  to  the 
extent  of  preventing  the  carrying  out  of 
existing  contracts.  Hudson  County,  etc., 
Co.  V.  McCarter,  209  U.  S.  349,  52  L.  Ed. 
828,  28   S.   Ct.  529. 

351-49.  Limitations  of  police  power — 
In  general. — See,  generally,  post,  PO- 
LICE POWER. 

The  state  can  not,  under  cover  of  ex- 
erting its  police  powers,  undertake  what 
amounts  essentially  to  a  regulation  of 
interstate  commerce,  or  impose  a  direct 
burden  upon  that  commerce.  Savage  v. 
Jones,  225  U.  S.  501,  524,  56  L.  Ed.  1182, 
32  S.  Ct.  715,  followed  in  Standard  Stock 
Food  Co.  V.  Wright,  225  U.  S.  540,  56  L. 
Ed.  1197,  32  S.  Ct.  784;  Atlantic,  etc.,  R. 
Co.  V.  Wharton,  207  U.  S.  328,  52  L-  Ed. 
230,  28  S.  Ct.  121;  Adams  Exp.  Co.  v. 
Commonwealth,  214  U.  S.  218,  53  L.  Ed. 
972,  29  S.  Ct.  633;  Hannibal,  etc.,  R.  Co. 
V.  Husen,  95  U.  S.  465,  474,  24  L.  Ed.  527; 
Walling  z:  Michigan,  116  U.  S.  446,  29 
L.  Ed.  691.  6  S.  Ct.  434. 

351-50.  Regulations  incidentally  affect- 
ing commerce. — It  is  supported  by  the 
general  principle  declared  in  Sherlock  v. 
Ailing,  93  U.  S.  99,  104,  23  L.  Ed.  819,  and 
enforced  in  Smith  v.  Alabama,  124  U.  S. 
465,  31  L.  Ed.  508,  8  S.  Ct.  564,  and  Nash- 
ville, etc..  Railway  v.  Alabama,  128  U.  S. 
96.  32  L.  Ed.  352,  9  S.  Ct.  28,  that  state 
legislation  "relating  to  the  rights,  duties, 
and  liabilities  of  citizens,  and  only  in- 
directly and  remotely  affecting  the  opera- 
tions of  commerce,  is  of  obligatory  force 
upon  citizens  within  the  territorial  juris- 
diction, whether  on  land  or  water,  or  en- 
gaged in  commerce,  foreign  or  interstate, 
or  in  any  other  pursuit."  Atlantic,  etc., 
R.  Co.  V.  Mazursky,  216  U.  S.  122,  54  L. 
Ed.  411.  30  S.  Ct.  378.  See,  also,  ante, 
"General  Statement  of  Rule,"  II,  A,  1, 
b,    (2),    (b),  cc,    (aa). 

When  a  local  police  regulation  has  real 
relation  to  the  suitable  protection  of  the 
people  of  the  state,  and  is  reasonable  in 
its  requirements,  it  is  not  invalid  because 
it  may  incidentally  affect  interstate  com- 
merce, provided  it  does  not  conflict  with 
legislation  enacted   by  congress  pursuant 


726 


Vol.  MI. 


INTERSTATE,  ETC.,  COMMERCE. 


354-361 


d.  State  Statutes  Affecting  Interstate  and  Foreign  Commerce — (2)  Construc- 
tion of  Statutes — (a)  In  General. — See  notes  70,  72. 

(3)   Discrimination. — See  note  82. 

(8)  Excluding  Imports  and  Preventing  Exports — (a)  Exclusion  of  Imports — 
aa.  Laziful  Articles  of  Commerce. — See  note  4. 


to  its  constitutional  authority.  Savage  z\ 
Jones,  225  U.  S.  501,  525,  56  L.  Ed.  11S2, 
32  S.  Ct.  715,  followed  in  Standard  Stock 
Food  Co.  V.  Wright,  225  U.  S.  540,  56 
L.  Ed.  1197,  32  S.  Ct.  784;  Asbell  v.  Kan- 
sas, 209  U.  S.  251.  254,  52  L.  Ed.  778,  28 
S.  Ct.  485;  Chicago,  etc.,  R.  Co.  v.  Ar- 
kansas, 219  U.  S.  453,  55  L.  Ed.  290,  31  S. 
Ct.  275;  Plumley  v.  Massachusetts,  155 
U.  S.  461,  39  L.  Ed.  223,  15  S.  Ct.  154: 
Hennington  v.  Georgia.  163  U.  S.  299. 
317.    41    L.    Ed.    166.    16    S.    Ct.    1086. 

354-64.  Statute  directed  against  or  im- 
posing burden  on  commerce  void. — It  is 
thoroughly  well  settled  that  state  laws 
may  not  burden  interstate  commerce. 
United  States  Exp.  Co.  z'.  Minnesota,  223 
U.   S.   335,   56   L.   Ed.   459.   32    S.   Ct.   211. 

355-70.  Presumption  in  favor  of  validity 
— Conflict  must  be  clear  and  irreconci- 
lable.— See  ante.  "Conflicting  State  and 
Federal  Legislation,"  II,  A,  2,  b,  (2); 
"Where  Congress  Has  Not  Occupied  the 
Full  Sphere  of  Its  Jurisdiction,"  II,  A, 
2,  b.   (3). 

355-72.  Operation  and  effect  of  law  con- 
sidered.— When  the  question  is  whether  a 
federal  act  overrides  a  state  law,  the  en- 
tire scheme  of  the  statute  must  of  course 
be  considered  and  that  which  needs  must 
be  iinplied  is  of  no  less  force  than  that 
which  is  expressed.  If  the  purpose  of  the 
act  can  not  otherwise  be  accomplished,  if 
its  operation  within  its  chosen  field 
must  be  frustrated  and  its  provisions  be 
refused  their  natural  effect,  the  state  law 
must  yield  to  the  regulation  of  congress 
within  the  sphere  of  its  delegated  power. 
Savage  v.  Jones.  225  U.  S.  501.  533.  56  L. 
Ed.  1182.  32  S.  Ct.  715,  followed  in  Stand- 
ard Stock  Food  Co.  z:  Wright.  225  U. 
S.  540.  56  L.  Ed.  1197,  32  S.  Ct.  784;  Texas, 
etc..  R.  Co.  z:  Abilene  Cotton  Oil  Co.,  204 
U.  S.  426,  51  L.  Ed.  553,  27  S.  Ct.  350; 
Northern  Pac.  R.  Co.  z'.  Atkinson,  222 
U.  S.  370,  378,  56  L.  Ed.  237,  32  S.  Ct.  160; 
Southern  R.  Co.  v.  Reid.  222  U.  S.  424, 
436.  56  L.  Ed.  257,  32  S.  Ct.  140. 

If  a  statute,  by  its  necessary  operation, 
really  and  substantially  burdens  the  in- 
terstate business  of  a  foreign  corporation 
seeking  to  do  Imsiness  in  a  state,  or  im- 
poses a  tax  on  its  property  outside  of  such 
state,  then  it  is  unconstittitional  and  void, 
although  the  state  legislature  may  not 
have  intended  to  enact  an  invalid  statute. 
Ludwig  v.-  Western  Union  Tel.  Co.,  216 
U.   S.   146,  54  L.  Ed.  423,  30  S.   Ct.  280. 

Neither  the  state  courts  nor  the  legis- 
latures, for  example,  can.  by  giving  to  a 
tax  a  particular  name,   or  by  the  use   ot 


some  form  of  words,  deprive  the  federal 
supreme  court  of  its  duty  to  Consider  its 
nature  and  effect.  If  it  bears  upon  com- 
merce among  the  states  so  directly  as  to 
amount  to  a  regulation  in  a  relatively 
immediate  way,  it  will  not  be  saved  by 
name  or  form.  In  all  such  matters  the 
judiciary  will  not  regard  mere  forms,  but 
will  look  through  forr"-  ♦^o  th"  rub^^ance 
of  things.  Western  Union  Tel.  Co.  v. 
Coleman,  216  U.  S.  1,  54  L.  Ed.  355,  30 
S.  Ct.  190;  Stockard  v.  Morgan,  185  U. 
S.  27,  37,  46  L.  Ed.  785.  22  S.  Ct.  576; 
Asbell  V.  Kansas,  209  U.  S.  251,  256,  52  L. 
Ed.   778,   28    S.    Ct.   485. 

358-82.  Discriminating  legislation  void 
— Discriminating  against  foreign  corpora- 
tions in  transportation  of  natural  gas. — 
The  Oklahoma  Statute  (Laws  of  Okla. 
1907,  ch.  67),  which  grants  the  use  of  the 
highways  to  domestic  corporations  en- 
gaged in  intrastate  transportation  of 
natural  gas,  giving  such  corporations 
even  the  right  to  the  longitudinal  use  of 
the  highways,  but  which  denies  to  for- 
eign corporations  the  lesser  right  to  pass 
under  them  or  over  them,  notwithstand- 
ing it  is  conceded  that  the  greater  use 
given  to  domestic  corporations  is  no  ob- 
struction of  them,  makes  a  discrimination 
which  is  beyond  the  power  of  the  state 
to  make,  since  no  state  can  by  action  or 
inaction  prevent,  unreasonable  burden, 
discriminate  against,  or  directly  regulate, 
interstate  commerce  or  the  right  to  carry 
it  on.  And  in  all  of  these  inhibited  par- 
ticulars the  statute  of  Oklahoma  offends. 
West  V.  Kansas  Natural  Gas  Co.,  221  U. 
S.  229,  55   L.   Ed.  716,  31   S.   Ct.   564. 

361-4.  Lawful  articles  of  commerce  can 
not  be  vrholly  included — Intoxicating 
liquors. — See  post,  "Tntoxicating  Liquors." 
II.  A.  2.   d.    (-17). 

Gunpowder. — The  use  of  the  words 
"original  packages"  in  Kan.  Laws  1907, 
chap.  250,  making  it  unlawful  to  sell,  of- 
fer for  sale,  or  deliver  black  powder  for 
use  in  any  coal  mines  in  the  state  except 
in  original  sealed  packages  containing 
125^  pounds  of  powder,  does  not  neces- 
sitate the  conclusion  that  the  statute  pro- 
hibits the  importation  of  black  powder 
from  other  states  in  other  than  125'? 
pound  packages.  Williams  z:  Walsh,  222 
U.   S.   415.   56   L.   Ed.   253,   32   S.   Ct.   137. 

Illuminating  fluids. — The  exclusion  from 
the  territory  by  Sess.  Lav^^s  Okl.  1S90,  p. 
187,  c.  21,  §  2.  of  illuminating  fluids  which 
have  a  specific  gravity  above  46  degrees 
Baume.  is  within  the  police  power  of  the 
territory,    although    some    oils    may    thus 


727 


363-370 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


(b)  Prohibiting  or  Impeding  Exportation. — See  note  16. 

(11)  Fish  and  Oysters. — Under  its  general  powers  of  sovereignty  and  eminent 
domain  the  state  owns  the  beds  of  all  navigable  and  tidal  waters  within  its  ter- 
ritorial limits  and  may  regulate  the  taking  of  fish  and  oysters  found  in  such 
waters."* '^^ 

(12)  Foreign  Corporations — (a)  General  Power  of  State. — Power  to  Ex- 
clude Monopolies  and  Corporate  Trusts. — The  doctrine  that  a  state  has  no 
power  to  exclude  from  its  limits  foreign  corporations  which  are  engaged  in  in- 
terstate commerce  does  not  extend  to  monopolies  and  combinations  in  restraint 
of  trade,  but  the  state  may  enact  valid  antitrust  laws  applicable  alike  to  resident 
and  nonresident  corporations,  and  under  their  provisions  may  expel  from  its 
borders  such  foreign  corporations  as  may  be  found  guilty  of  entering  into  a  con- 
spiracy or  monopoly  in  restraint  of  trade. -^-^ 


be  excluded  which  are  as  safe  for  use  as 
those  which  comply  with  the  statutory- 
standard.  Judgment  (1907).  89  P.  212,  18 
Okl.  107,  affirmed.  Waters-Pierce  Oil  Co. 
V.  Deselms,  212  U.  S.  159,  53  L.  Ed.  453, 
29  S.  Ct.  270.  See,  also,  post,  POLICE 
POWER. 

Game. — A  state  law  which  forbids  the 
sale  or  even  the  having  in  possession  of 
game  within  the  state  during  the  closed 
season  is  not  unconstitutional  even  as  ap- 
plied to  game  imported  from  another 
state.  Silz  z'.  Hesterberg,  211  U.  S.  31, 
53  L.  Ed.  75,  29  S.  Ct.  10,  distinguishing 
Schallenberger  f.  Pennsylvania,  171  U.  S. 
1,  43  L.  Ed.  49.  See,  generally,  ante, 
GAME  AND  GAME  LAWS,  p.  605; 
POLICE  POWER. 

363-16.  Preventing  exportation — In  gen- 
eral.— A  man  can  not  acquiie  a  right  to 
property  by  his  desire  to  use  it  in  com- 
merce among  the  states.  Neither  can  he 
enlarge  his  otherwise  limited  and  quali- 
fied right  to  the  same  end.  Hudson 
County,  etc.,  Co.  v.  McCarter,  209  U.  S. 
349,  52  L.  Ed.  828,  28  S.  Ct.  529.  See, 
also,  Geer  v.  Connecticut,  161  U.  S.  519, 
40   L.   Ed.  793.   10   S.   Ct.  GOO. 

Diversion  of  flowing  stream  into  an- 
other state. — -The  right  to  receive  water 
from  a  river  through  pipes  is  subject  to 
territorial  limits  by  nature,  and  those 
limits  may  be  fixed  by  the  state  within 
which  the  river  flows,  even  if  they  are 
inade  to  coincide  with  the  state  line.  Hud- 
son County,  etc.,  Co.  v.  McCarter,  209  U. 
S.   349,   52   L.    Ed.   828,   28   S.   Ct.   529. 

Commerce  betv/een  the  .states  of  New 
York  and  New  Jersey  is  not  unlawfully 
interfered  with  by  Laws  N.  J.  1905,  p.  461. 
c.  238,  under  which  a  riparian  owner  may 
be  forbidden  to  divert  the  waters  of  the 
Passaic  river  beyond  the  state,  under  a 
contract  to  furnish  a  water  supply  for  the 
city  of  New  York.  Decree,  McCarter  v. 
Hudson  Countv  Water  Co.  (1906),  65  A. 
489,  70  N.  J.  Eq.  695.  affirmed.  Hudson 
County,  etc.,  Co.  v.  McCarter,  209  U.  S. 
349,  52  L.   Ed.  828,  28  S.   Ct.  529. 

Exportation  of  natural  gas. — Natural 
gas,    when    reduced    to   possession,     is      a 


commodity  which  belongs  to  the  owner 
of  the  land,  and  may  be  the  subject  of 
both  intrastate  and  interstate  coinmerce. 
West  z'.  Kansas  Natural  Gas  Co.,  221  U. 
S.  229,  55  L.  Ed.  716,  31  S.  Ct.  564,  affirm- 
ing decree  (C.  C.  1909),  Kansas  Natural 
Gas   Co.   c'.   Haskell,   172   F.   545. 

Prohibiting  the  construction  of  pipe 
lines  for  natural  gas,  or  the  transportation 
of  the  gas  by  such  lines  except  by  domes- 
tic corporations,  whose  charters  shall 
provide  that  the  gas  shall  only  be  trans- 
ported between  points  in  the  state,  and 
shall  not  be  transported  to,  nor  de- 
livered to,  any  person  or  corporation  en- 
gaged in  transporting  or  furnishing  gas  to 
points  outside  of  the  state,  and  giving  to 
such  domestic  corporations  the  exclusive 
right  of  eminent  domain  and  the  use  of 
the  highways,  all  of  which  is  attempted 
by  Okla.  Laws  1907,  chap.  67.  unconstitu- 
tionally interferes  with  interstate  com- 
merce, and  can  not  be  justified  as  an  ex- 
ercise of  the  police  power  of  the  state  to 
conserve  its  natural  resources.  West  v. 
Kansas  Natural  Gas  Co.,  221  U.  S.  229,  55 
L.   Ed.  716,   31    S.   Ct.   564. 

369-48a.  Fish  and  oysters. — Lee  v.  New 
Jersey,  207  U.  S.  67.  52  L.  Ed.  106,  28  S. 
Ct.  22;  The  Abby  Dodge,  223  U.  S.  166, 
56  L.  Ed.  390.  32  S.  Ct.  310.  See,  gen- 
erally, ante,  FISH  AND  FISHERIES, 
p.   583. 

Rights  under  the  commerce  clause  of 
the  federal  constitution  are  not  infringed 
by  the  provisions  of  Act  N.  J.  March  24, 
1899,  p.  514,  §  20,  as  amended  by  Act 
March  22,  1901,  p.  317,  under  which  a  con- 
viction may  be  had  for  using  a  dredge  in 
tidal  waters  of  the  state  for  the  purpose 
of  catching  oysters  upon  leased  lands 
without  the  consent  of  the  lessees.  Judg- 
ment, State  V.  Lee  (1905),  59  A.  1118, 
affirmed.  Lee  v.  New  Jersey,  207  U.  S. 
67,  52  L.   Ed.  106,  28  S.  Ct.  22. 

Importation  of  sponges — Powers  of 
state  and  congress. — See  ante,  "Exclusion 
of  Imports,  Establishment  of  Standards," 
II,  A,  1,  b,    (3),   (b),  hh. 

370-52a.  Power  to  exclude  monopolies 
and    corporate    trusts. — Standard    Oil    Co. 


728 


Vol.  MI.  IXTERSTATE,  ETC.,  COMMERCE. 

(i)     Taxation  and  Licenses — aa.    In  General. — See  note  61. 


372 


V.  Tennessee,  217  U.  S.  413,  54  L.  Ed.  817, 
30  S.  Ct.  543;  Palmer  v.  Texas,  212  U.  S. 
118,  53  L.  Ed.  435,  29  S.  Ct.  230;  Ham- 
mond Packing  Co.  7-.  Arkansas,  212  U.  S. 
322,   53   L.   Ed.   530,   29   S.   Ct.  370. 

Interstate  commerce  is  not  unlawfully 
regulated,  at  least,  in  the  absence  of  con- 
gressional action,  by  the  Tennessee  Anti- 
trust Act  of  March  16,  1903.  under  which, 
as  construed  by  the  state  court,  a  foreign 
oil  company  may  be  excluded  from  doing 
domestic  business  in  the  state  because  it 
has  induced  merchants  in  that  state,  by 
a  gift  of  oil,  to  revoke  orders  on  a  rival 
company  for  oil  to  be  shipped  into  the 
state.  Standard  Oil  Co.  i\  Tennessee,  217 
U.    S.   413.   54  L.   Ed.   S17,   30   S.   Ct.   543. 

Appointment  of  receiver  upon  forfei- 
ture of  rights.— The  appointment  by  a 
state  court  of  a  receiver  of  the  property 
of  a  loreign  corporation  v.']iose  permit  to 
do  business  in  the  state  has  been  ad- 
judged forfeited  for  violation  of  the  state 
antitrust  laws  is  not  invalid  because  the 
judgment  of  forfeiture  expressly  permits 
the  corporation  to  continue  its  interstate 
business,  where  the  state  court  rested  its 
order  appointing  the  receiver  not  solely 
upon  the  Act  of  April  11,  1907,  making 
special  provisions  for  carrying  out  judg- 
ments under  the  antitrust  laws,  but  also 
upon  a  statute  in  force  before  the  permit 
to  do  business  within  the  state  was 
granted,  empowering  the  courts  to  ap- 
point a  receiver  of  the  property  of  a  cor- 
poration which  is  insolvent  or  has  for- 
feited its  corporate  rights.  Palmer  v. 
Texas,  212  U.  S.  118,  53  L.  Ed.  435,  29  S. 
Ct.    230. 

Contract  rights. — Xo  contract  rights  of 
domestic  corporations  are  impaired  by  the 
provisions  of  Act  Ark.  Jan.  23,  1905  C:.\cts 
1905.  p.  2).  §  1,  imposing  a  penalty  on 
corporations  doing  business  in  the  state 
while  members  of  a  trust  or  combination 
to  control  prices,  where  the  state  con- 
stitution reserves  to  the  legislature  the 
power  to  repeal,  alter,  or  amend  corporate 
charters,  provided  no  injustice  be  done  to 
the  incorporators.  Judgment  (1907),  100 
S.  W.  407,  81  Ark.  519,  affirmed.  Ham- 
mond Packing  Co.  v.  Arkansas,  212  U.  S. 
322.    53    L.    Ed.    530.   29    S.    Ct.    370. 

372-61.  Taxation  and  licenses. — See, 
generally,  post,  LICENSES;  ^  TAXA- 
TION. See,  also,  post,  "State  Taxation,"' 
III. 

It  is  well  settled  by  numerous  decisions 
of  the  federal  supreme  court,  ihal  a  state 
can  not,  under  the  guise  of  a  license  tax, 
exclude  from  its  jurisdiction  a  foreign 
corporation  engaged  in  interstate  com- 
merce, or  impose  any  burdens  upon  such 
commerce  within  its  limits.  Western 
Union  Tel.  Co.  v.  Coleman,  216  U.  S.  1, 
54   L.    Ed.    355,    30    S.    Ct.    190. 


■■\Ve  have  repeatedly  decided  that  a 
state  law  is  unconstitutional  and  void 
which  requires  a  party  to  take  out  a  li- 
cense for  carrying  on  interstate  com- 
merce, no  matter  how  specious  the  pre- 
text may  be  for  imposing  it."'  Western 
Union  Tel.  Co.  v.  Coleman,  216  U.  S.  i. 
54  L.  Ed.  355,  30  S.  Ct.  190,  citing  Pickard 
V.  Pullman  Southern  Car  Co.,  117  U.  S. 
34.  29  L.  Ed.  785.  6  S.  Ct.  635;  Robbins  i: 
Shelby  County  Taxing  Dist.,  120  U.  S. 
489,  30  L.   Ed.  694,  7  S.   Ct.  592. 

'"X'either  the  state  courts  nor  the  legis- 
latures, by  giving  the  tax  a  particular 
name  or  by  the  use  of  some  form  of 
w^ords,  can  take  away  our  duty  to  con- 
sider its  nature  and  effect.  If  it  bears 
upon  commerce  among  the  "States  so  di- 
rectly as  to  amount  to  a  regulation  in  a 
relatively  immediate  way,  it  will  not  be 
saved  by  name  or  form."  Western  Union 
Tel.  Co.  z:  Coleman,  216  U.  S.  1,  54  L. 
Ed.  355.  30  S.  Ct.  190;  Stockard  z:  Mor- 
gan, 185  U.  S.  27,  37,  46  L.  Ed.  785,  22  S.  Ct. 
576;  Asbell  v.  Kansas,  209  U.  S.  251,  256, 
52  L.  Ed.  778,  28  S.  Ct.  485.  See,  also, 
ante,  "In  General,"'  II,  A,  2,  d,  (2),  (a). 

"We  are  aware  of  no  decision  by  this 
court  holding  that  a  state  may,  by  any 
device  or  in  any  way,  whether  by  a  li- 
cense tax  in  the  form  of  a  'fee,'  or  other- 
wise, burden  the  interstate  business  of  a 
corporation  of  another  state,  although  the 
state  may  tax  the  corporation's  property 
regularly  or  permanently  located  within 
its  limits,  where  the  ascertainment  of  the 
amount  assessed  is  made  'dependent  in 
fact  on  the  value  of  its  property  situated 
within  the  state,'"  Western  Union  Tel. 
Co.  V.  Coleman,  216  U.  S.  1,  54  L.  Ed.  355, 
30  S.  Ct.  190;  Postal  Tel.  Cable  Co.  v. 
Adams,  155  U.  S.  688,  696.  39  L.  Ed.  311, 
15  S.  Ct.  268;  Leloup  z:  Port  of  Mobile, 
127  U.  S.  640,  649,  32  L.  Ed.  311,  8  S.  Ct. 
1380. 

It  is  to  be  deduced  from  the  adjudged 
cases  that  a  corporation  of  one  state,  au- 
thorized by  its  charter  to  engage  in  law- 
ful commerce  among  the  states,  may  not 
be  prevented  by  another  state  from  com- 
ing into  its  limits  for  all  the  legitimate 
purposes  of  such  commerce.  It  may  go- 
into  the  state  without  obtaining  a  license 
from  it  for  the  purposes  of  its  interstate 
business,  and  without  liability  to  taxation 
there  on  account  of  such  business.  West- 
ern Union  Tel.  Co.  r.  Coleman,  216  U.  S. 
1,   54  L.    Ed.   355,   30   S.    Ct.   190. 

The  disavowal  by  the  state  of  any  pur- 
pose to  burden  interstate  commerce  can 
not  conclude  the  question  as  to  the  fact 
of  such  a  burden  being  imposed,  or  as  to 
the  unconstitutionality  of  the  statute,  as 
shown  by  its  necessary  operation  upon 
interstate  commerce.  If  the  statute,  rea- 
sonably interpreted,  either  directly  or  by 


"29 


372 


INTERSTATE,  ETC.,  COMMERCE. 


Ydi.  VII. 


Requirements  Tantamount  to  License — Filing  Statements  with  Secre- 
tary of  State,  etc. — Not  only  may  the  state  not  require  a  foreign  corporation 
to  take  out  a  license  to  do  business,  that  is,  interstate  business,  within  the  state, 


its  necessary  operation,  burdens  inter- 
state commerce,  it  must  be  adiud^ed  to 
be  invalid,  whatever  may  have  been  the 
purpose  for  w^hich  it  was  enacted,  and  al- 
though the  company  may  do  both  inter- 
state and  local  business.  The  federal  su- 
preme court  has  repeatedly  adjudged 
that  in  all  such  matters  the  judiciary  will 
not  regard  mere  forms,  liut  will  look 
throuph  forms  to  the  substance  of  things. 
Such  is  an  established  rule  of  constitu- 
tional construction,  as  the  adjudged  cases 
abundantly  show.  Western  Union  Tel. 
Co.  V.  Coleman,  216  U.  S.  1,  54  L-  Ed.  355, 
30  S.  Ct.  190. 

Illustrations — Charter  fees,  tax  on  fran- 
chise, business,  property  without  the  state, 
etc. — The  exaction  from  a  foreign  tele- 
graph company  for  the  benefit  of  the 
permanent  school  fund,  imder  the  au- 
thority of  Gen.  St.  Kan.  1901,  p.  280,  § 
1261,  of  a  "charter  fee"  of  a  given  per 
cent  of  its  entire  authorized  capital  stock, 
as  a  condition  of  continuing  to  do  local 
business  in  the  state,  is  invalid  under  the 
commerce  clause  of  the  federal  constitu- 
tion, as  necessarily  amounting  to  a  bur- 
den and  tax  on  the  company's  interstate 
business  and  on  its  property  located  or 
used  outside  the  state.  Decree,  State  v. 
Western  Union  Telegraph  Co.  (1907),  90 
P.  299,  75  Kan.  609,  reversed.  Western 
Union  Tel.  Co.  v.  Coleman,  216  U.  S.  1, 
54  L.   Ed.  355,  30  S.  Ct.  190. 

The  exaction  from  a  foreign  telegraph 
company  for  the  benefit  of  the  permanent 
school  fund,  under  the  authority  of  Gen.  St. 
Kan.  1901,  p.  280,  of  a  "charter  fee"'  of  a 
given  per  cent  of  its  entire  authorized 
capital  stock,  as  a  condition  of  continuing 
to  do-  local  business  in  the  state,  is  in- 
valid under  the  due  process  of  law  clause 
of  the  federal  constitution,  as  necessarily 
amounting  to  a  burden  and  tax  on  the 
company's  interstate  business  and  on  its 
property  located  or  used  outside  the 
state.  Decree,  State  v.  Western  Union 
Telegraph  Co.  (1907),  90  P.  299,  75  Kan. 
609,  reversed.  Western  Union  Tel.  Co. 
V.  Coleman,  216  U.  S.  1,  54  L.  Ed.  355,  30 
S.    Ct.   190. 

That  the  Western  Union  Telegraph 
Company  is  engaged  in  both  interstate 
and  intrastate  commerce  is  no  reason,  in 
itself,  why  Kansas  may  not,  in  good  faith, 
require  it  to  pay  a  license  tax  strictly  on 
account  of  local  business  done  by  it  in 
that  state.  But  it  is  altogether  a  different 
thing  for  Kansas  to  deny  it  the  privilege 
of  doing  such  local  business,  beneficial  to 
the  public,  except  on  condition  that  it 
shall  first  pay  to  the  state  a  given  per 
cent  of  all  its  capital  stock,  representing 
all  of  its  property,  wherever  situated,  and 


all  its  business  in  and  outside  of  the  state. 
Western  Union  Tel.  Co.  v.  Coleman,  216 
U.   S.   1,   54   L.   Ed.   355,  30   S.   Ct.   190. 

"We  repeat  that  the  statutory  require- 
ment that  the  telegraph  company  shall, 
as  a  condition  of  its  light  to  engage  in 
local  business  in  Kansas,  first  pay  into  the 
stare  school  fund  a  giveii  per  cent  of  its 
authorized  capital,  representing  all  its 
business  and  property  everywhere,  is  a 
burden  on  the  company's  interstate  com- 
merce and  its  privilege  to  engage  in  that 
commerce,  in  that  it  makes  both  such 
commerce,  as  conducted  by  the  company, 
and  its  property  outside  of  the  state,  con- 
tribute to  the  support  of  the  state's 
schools.  Such  is  the  necessary  effect  of 
the  statute,  and  that  result  can  not  be 
avoided  or  concealed  by  calling  the  ex- 
action of  such  a  per  cent  of  its  capital 
stock  a  'fee'  for  the  privilege  of  doing 
local  business.  To  hold  otherwise,  is  to 
allow  form  to  control  substance.  It  is 
easy  to  be  seen  that  if  every  state  should 
pass  a  statute  similar  to  that  enacted  by 
Kansas,  not  only  the  freedom  of  inter- 
state commerce  would  be  destroyed,  the 
decisions  of  this  court  nullified,  and  the 
business  of  the  country  thrown  into  con- 
fusion, but  each  state  would  continue  to 
meet  its  own  local  expenses  not  only  by 
exactions  that  directly  burdened  such  com- 
merce, but  bj'  taxation  upon  property 
situated  beyond  its  limits.  We  can  not 
fail  to  recognize  the  intimate  connection 
which,  at  this  day,  exists  between  the 
interstate  business  done  by  interstate  com- 
panies and  the  local  business  which,  for 
the  convenience  of  the  people,  must  be 
done,  or  can  generally  be  better  and  more 
economically  done,  by  such  interstate 
companies  rather  than  by  domestic  com- 
panies organized  to  conduct  only  local 
business.  It  is  of  the  last  importance 
that  the  freedom  of  interstate  commerce 
shall  not  be  trammeled  or  burdened  by 
local  regulations  which,  under  the  guise 
of  regulating  local  afifairs,  really  burdened 
rights  secured  by  the  constitution  and 
laws  of  the  United  States.  While  the 
general  right  of  the  states  to  regulate 
their  strictly  domestic  affairs  is  funda- 
mental, in  our  constitutional  system,  and 
vital  to  the  integrity  and  permanence  of 
that  system,  that  right  must  always  1)e 
exerted  in  subordination  to  the  granted 
or  enumerated  powers  of  the  general  gov- 
ernment, and  not  in  hostility  to  rights 
secured  by  the  supreme  law  of  the  land.'" 
Western  Union  Tel.  Co.  v.  Coleman,  216 
U.   S.  1,  54  L.   Ed.  355,  30  S.  Ct.  190. 

An  illegal  burden  on  the  interstate  busi- 
ness of  a  foreign  telegraph  company,  as 
well  as  a  tax  on  its  property  beyond  the 


"30 


Vol.  MI. 


IXTBRSTATE,  ETC.,   COMMERCE. 


372 


but  neither  may  it  exact  of  such  a  corporation  the  doing  of  that  which,  in  its 
practical  effects,  is  tantamount  to  the  taking  out  of  a  license;  as  that  it  shall 
make,  deliver,  and  file  with  the  secretary  of  state  a  statement  of  its  financial 
condition  and  obtain  his  certificate  that  such  statement  has  been  properly  made 
out  and  filed.^"^'^  . 


jurisdiction  of  the  state,  is  imposed  by 
Laws  Ark.  1907,  p.  744,  under  which  such 
company,  as  a  condition  of  continuing  to 
do  a  local  business  in  the  state,  and  of 
escaping  the  heavy  penalties  therein  pre- 
scribed, must  pay  a  given  amount,  based 
on  all  its  capital  stock,  merely  for  filing 
its  articles  of  incorporation  with  the  secre- 
tarv  of  state.  Decree,  Chicago,  R.  I.  & 
P.  Ry.  Co.  r.  Ludwig  (C.  C.  1907),  1.56  F. 
152,  affirmed.  I^idwig  v.  Western  Union 
Tel.  Co..  216  U.  S.  146,  54  L.  Ed.  423,  .^0 
S.  Ct.  280. 

"The  vital  question  in  the  case  is  as  to 
the  constitutionality  of  the  Arkansas 
statute.  It  is  insisted  by  the  plaintiff, 
among  other  grounds,  that  the  provision 
in  the  statute  requiring  a  foreign  corpota- 
tion  seeking  to  do  business  in  the  state 
to  paj^  a  fee  based  upon  the  amount  of  its 
capital  stock,  for  filing  with  the  secretary 
of  state  its  articles  of  incorporation  or 
association,  is  a  device  which,  in  effect 
and  by  its  necessary  operation,  under  the 
guise  of  regulating  intrastate  business, 
impose  a  tax  on  the  interstate  business  of 
such  corporation,  as  well  as  a  tax  on  its 
property  used  and  permanently  located 
outside  of  the  state.  *  *  *  The  case  can 
not  be  distinguished  in  principle  from 
Western  Union  Tel.  Co.  v.  Coleinan.  2j6 
U.  S.  ].  56.  54  L.  Ed.  355,  30  S.  Ct.  190. 
The  difference  in  the  wording  of  the 
Kansas  and  Arkansas  statutes,  can  not 
take  the  present  case  out  of  the  ruling  of 
the  former  cases.  On  the  authority  of  the 
Kansas  cases,  and  for  the  reasons  stated 
in  the  opinions  therein,  we  hold  the  stat- 
ute in  question  to  be  unconstitutional  and 
void,  as  illegally  burdening  interstate 
commerce  and  imposing  a  tax  on  property 
beyond  the  jurisdiction  of  the  state." 
Ludwig  V.  Western  Union  Tel.  Co..  216 
U.  S.  146,  54  L.  Ed.  423,  30  S.  Ct.  280. 

A  foreign  sleeping  car  company  can  not 
be  restrained  from  doing  local  bu.siness 
in  the  state  because  of  its  refusal  to  pay 
the  "charter  fee"'  of  a  given  per  cent  of 
its  entire  canital  stock,  imposed  bv  Gen. 
St.  Kan.  1901,  §  1264,  for  "the  benefit  of 
the  permanent  school  fund,  as  a  condition 
of  doing  such  business,  since  such  re- 
quirement amounts  to  a  burden  or  tax  on 
the  company's  interstate  business  and  on 
its  propertv  located  and  used  outside  the 
state.  Judgment,  State  v.  Pullman  Co. 
(1907).  90  P.  319.  75  Kan.  6fi4.  reversed. 
Pullman  Co.  v.  Coleman,  216  U.  S.  56,  54 
L.    Ed.    378,   30   S.   Ct.   232. 

"For  the  reasons,  and  under  the  limita- 
tions, expressed  in  the   opinion  delivered 


in  Western  Union  Tel.  Co.  v.  Coleman 
216  U.  S.  1,  54  L.  Ed.  355,  30  S.  Ct.  19o', 
and  without  expressing  any  opinion  upon 
questions  raised  by  the  pleadings,  but  not 
covered  by  this  opinion,  we  hold,  1.  That 
the  Pullman  Company  was  not  bound  to 
obtain  the  permission  of  the  state  to 
transact^  interstate  business  within  its 
limits,  but  could  go  into  the  state,  for  the 
purposes  of  that  business,  without  lia- 
bility to  taxation  there  with  respect  to 
such  business,  although  subject  to  rea- 
sonable local  regulations  for  the  safety, 
cornfort,  and  convenience  of  the  people 
which  did  not,  in  a  real,  substantial  sense, 
burden  or  regulate  its  interstate  business, 
nor  subject  its  property  interests  outside 
of  the  state  to  taxation  in  Kansas.  2. 
That  the  requirement  that  the  company, 
as  a  condition  of  its  right  to  do  intrastate 
business  in  Kansas,  should,  in  the  form 
of  a  fee,  pay  to  the  state  a  specified  per 
cent  of  its  authorized  capital,  was  a  viola- 
tion of  the  constitution  of  the  United 
States,  in  that  such  a  single  fee,  based  as 
it  was  on  all  the  property  intcrt;sts,  and 
business  of  the  company,  within  and  out 
of  the  state,  was,  in  effect,  a  tax  both  on 
the  interstate  business  of  that  company, 
and  on  its  property  outside  of  Kansas, 
and  compelled  the  company,  in  order  that 
it  might  do  local  business  in  Kansas  in 
connection  with  its  interstate  business,  to 
waive  its  constitutional  exemption  from 
state  taxation  on  its  interstate  business 
and  on  its  nroperty  outside  of  the  state, 
and  contribute  from  its  capital  to  the  sup- 
port of  the  public  schools  of  Kansas:  that 
the  state  could  no  more  exact  such  a 
M-aiver  than  it  could  prescribe  as  a  con- 
dition of  the  company's  right  to  do  local 
business  in  Kansas  that  it  agree  to  waive 
the  constitutional  guaranty  of  the  equal 
protection  of  the  laws,  or  the  guaranty 
against  being  deprived  of  its  property 
otherwise  than  by  due  process  of  law." 
Pullman  Co.  v.  Coleman,  216  U.  S.  56, 
54  L.    Ed.  378.  30  S.   Ct.   232. 

372-64a.  Requirements  tantamount  to 
license — Filing  statements  with  secretary 
of  state. — International  Textbook  Co.  v. 
Pigg.  217  U.  S.  91,  54  L.  Ed.  678,  30  S.  Ct. 
481;  International  Textbook  Co.  z'.  Peter- 
son, 218  U.  S.  664,  54  L.  Ed.  1201.  31  S. 
Ct.   225. 

Interstate  commerce  is  unconstitution- 
ally regulated  by  the  provisions  of  Gen. 
St.  Kan.  1901,  §  1283,  under  which  the 
filing  of  a  statement  of  financial  condition 
is  made  a  prerequisite  to  the  right  of  a 
foreign  corporation  engaged  in  imparting 


731 


372 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


(13)  Game. — See,  generally,  ante,  Game  and  Game;  Laws,  p.  605.  See,  also, 
ante,  "Lawful  Articles  of  Commerce,"  II,  A,  2,  d,  (8),  (a),  aa. 

(15)  Inspection  Laws. — See  ante,  Inspection  Laws,  p.  670.  See,  also,  ante, 
'"Where  Congress  Has  Not  Occupied  the  Full  Sphere  of  Its  Jurisdiction,"  II, 
A,  2,  b,  (3)  ;  post,  "State  Pure  Food  Laws,"  II,  A,  2,  d.  (29)  ;•  "Pure  Food  and 
Drugs  Act,"  V,  et  seq. 


instruction  by  correspondence  to  do  busi- 
ness in  the  state,  where  such  business  in- 
volves the  solicitation  oi  students  in  Kan- 
sas by  local  agents,  who  are  also  to  col- 
lect and  forward  to  the  home  office  the 
tuition  fees,  and  the  systematic  inter- 
course by  correspondence  between  the 
company  and  its  students  and  agents, 
wherever  situated,  and  the  transportation 
of  the  needful  books,  apparatus,  and  pa- 
pers. Judgment  (1907),  91  P.  74,  7G  Kan. 
328,  reversed.  International  Textbook 
Co.  V.  Pigg,  217  U.  S.  91,  54  L.  Ed.  678, 
30  S.  Ct.  481,  followed  in  International 
Textbook  Co.  v.  Peterson,  218  U.  S.  004, 
54    L.    Ed.    1201,   31    S.    Ct.   225. 

Was  it  competent  for  the  state  to  pre- 
scribe, as  a  condition  of  the  right  of  the 
Textbook  Company  to  do  interstate  busi- 
ness in  Kansas,  such  as  was  transacted 
with  Pigg.  that  it  should  prepare,  de- 
liver, and  file  with  the  secretary  of  state 
the  statement  mentioned  in  §  1283?  The 
above  question  must  be  answered  in  the 
negative  upon  the  authority  of  former  ad- 
judications by  the  federal  supreme  court. 
A  case  in  point  is  Crutcher  v.  Kentucky, 
141  U.  S.  47,  57,  35  L.  Ed.  649,  11  S.  Ct. 
851;   International  Textbook    Co.  v.  Pigg, 

217  U.  S.  91,  54  L.  Ed.  678,  30  S.  Ct.  481; 
International   Textbook    Co.   v.    Peterson, 

218  U.  S.  664,  54  L.  Ed.  120J.  31  S.  Ct. 
225. 

The  statute  does  not,  in  terms,  require 
the  corporation  of  another  state  engaged 
in  interstate  commerce  to  take  out  what 
is  technically  "a  license''  to  transact  its 
business  in  Kansas.  But  it  denies  all  au- 
thority to  do  business  in  Kansas  unless 
the  corporation  makes,  delivers,  and  files 
a  "statement"  of  the  kind  mentioned  in 
§  1283.  The  effect  of  such  requirement  is 
practically  the  same  as  if  a  formal  license 
was  required  as  condition  precedent  to 
the  right  to  do  such  business.  In  either 
case  it  imposes  a  condition  upon  a  cor- 
poration of  another  state  seeking  to  do 
business  in  Kansas,  which,  in  the  case  of 
interstate  business,  is  a  regulation  of  in- 
terstate commerce  and  directly  burdens 
such  commerce.  The  state  can  not  thus 
burden  interstate  commerce.  It  follows 
that  the  particular  clause  of  §  1283  re- 
quiring that  "statement"'  is  illegal  and 
void.     International  Textbook  Co.  r.  Pigg, 

217  U.  S.  91,  54  L.  Ed.  678,  30  S.  Ct.  481; 
International   Textbook    Co.    v.    Peterson, 

218  U.  S.  664,  54  L.  Ed.  1201,  31  S.  Ct. 
225. 

The    Textbook    Company    may    have    a 


valid  contract  with  a  citizen  of  Kansas, 
one  directly  arising  out  of  and  connected 
with  its  interstate  business.  The  statute 
denies  its  right  to  invoke  the  authoritv  of 
a  Kansas  court  to  enforce  its  provisions 
unless  it  does  what  we  hold  it  was  not, 
under  the  constitution,  bound  to  do; 
namely,  make,  deliver,  and  file  with  the 
secretary  of  state  the  statement  required 
by  §  1283.  If  the  state  could,  under  any 
circumstances,  legally  forbid  its  cotirts 
from  taking  jurisdiction  of  a  suit  brought 
by  a  corporation  of  another  state,  en- 
gaged in  interstate  business,  upon  a  valid 
contract  arising  out  of  such  business,  and 
made  with  it  by  a  citizen  of  Kansas,  it 
could  not  impose  on  the  company,  as  a 
condition  of  its  authority  to  carry  in  its 
interstate  business  in  Kansas,  that  it  shall 
make,  deliver,  ai>d  file  that  statement  with 
the  secretary  of  state,  and  obtain  his  cer- 
tificate that  it  had  been  properly  made. 
International  Textbook  Co.  v.  Pigg,  217 
U.  S.  91,  54  L.  Ed.  678,  30  S.  Ct.  481;  In- 
ternational Textbook  Co.  v.  Peterson,  218 
U.  S.  664,  54  L.  Ed.  1201,  31  S.  Ct.  225._ 

It  is  sufficient  to  say  that  the  require- 
ment of  the  statement  mentioned  in  Kan. 
Gen.  Stat.  1901,  §  1283,  imposes  a  direct 
burden  upon  the  plaintiff's  right  to  en- 
gage in  interstate  business,  and  therefore 
is  in  violation  of  its  constitutional  rights. 
It  is  the  established  doctrine  of  the  fed- 
eral supreme  court  that  a  state  may  not, 
in  any  form  or  under  any  guise,  directly 
burden  the  prosecution  of  interstate  busi- 
ness. But  such  a  burden  is  imposed  when 
the  corporation  of  another  state,  lawfully 
engaged  in  interstate  commerce,  is  re- 
quired, as  a  condition  of  its  right  to  prose- 
cute its  business  in  Kansas,  to  make  and 
file  a  statement  setting  forth  certain  facts 
which  the  state,  confessedly,  could  not 
control  by  legislation.  It  results  that  the 
provision  as  to  the  statement  mentioned 
in  §  1283  must  fall  before  the  constitu- 
tion of  the  United  States,  and  with  it, 
according  to  the  established  rules  of  statu- 
tory construction,  must  fall  that  part  of 
the  same  section  which  provides  that  the 
obtaining  of  the  certificate  of  the  secre- 
tary of  state  that  such  statement  has  been 
properly  made  shall  be  a  condition  prece- 
dent to  the  right  of  the  plaintiff  to  main- 
tain an  action  in  the  courts  of  Kansas. 
International  Textbook  Co.  v.  Pigg,  217 
U.  S.  91,  54  L.  Ed.  678,  30  S.  Ct.  481,  fol- 
lowed in  International  Textbook  Co.  v. 
Peterson,  218  U.  S.  664,  54  L.  Ed.  1201, 
31    S.    Ct.   225. 


732 


\'ol.  MI. 


IXTERSTATE,  ETC.,  COMMERCE. 


378-382 


(17)    Into.vicating  Liquors — (a)    In   General. — See  note  95. 

(c)  While  Property  Is  in  Transit — aa.    In  General. — See  note  10. 
bb.    When  Property  Is  in  Transit. — See  note  14. 

(d)  After  Property  Has  Reached  Its  Destination — bb.   Since  Passage  of  Wil- 
son  Act — (aa)     The  Act — ccc.    Object  and  Purpose. — See  ante,  "In  General," 


378-95.  Intoxicating  liquors — Article  of 
commerce. — The  right  to  send  liquors 
from  one  state  into  another,  and  the  act 
of  sending  the  same,  is  interstate  com- 
merce, the  regulation  whereof  has  been 
committed  by  the  constitution  of  the 
United  States  to  congress,  and,  hence,  that 
a  state  law  which  denies  such  a  right,  or 
substantially  interferes  with  or  hampers 
the  same,  is  in  conflict  with  the  constitu- 
tion of  the  United  States.  Adams  Exp. 
Co.  z'.  Commonwealth.  214  U.  S.  218,  3''> 
L.  Ed.  972,  29  S.  Ct.  633. 

By  a  long  line  of  decisions,  beginning 
even  prior  to  Leisy  v.  Hardin,  135  U.  S. 
100,  34  L.  Ed.  128,  10  S.  Ct.  681,  it  has 
been  indisputably  determined:  a.  That 
beer  and  other  intoxicating  liquors  are  a 
recognized  and  legitimate  subject  of  in- 
terstate commerce,  b.  That  it  is  not  com- 
petent for  any  state  to  forbid  any  com- 
mon carrier  to  transport  such  articles 
from  a  consignor  in  one  state  to  a  con- 
signee in  another.  c.  That  until  such 
transportation  is  concluded  by  delivery 
to  the  consignee,  such  commodities  dc 
not  become  subject  to  state  regulation, 
restraining  their  sale  or  disposition.  Louis- 
ville, etc.,  R.  Co.  v.  Cook  Brewing  Co., 
223  U.  S.  70,  56  L.  Ed.  355.  32  S.  Ct.  189. 

Offense  of  furnishing  liquor  to  inebri- 
ate— As  applied  to  interstate  transporta- 
tion.— The  provision  for  the  punishnivint 
of  knowingly  furnishing  intoxicating 
liquor  to  an  inebriate,  which  is  made  by 
Ky.  Stat.  1903,  §  1307,  is,  as  applied  to  the 
transportation  of  liquor  by  an  express 
company  from  state  to  state,  an  uncon- 
stitutional regulation  of  interstate  com- 
merce. Adams  Exp.  Co.  :\  Common- 
wealth, 214  U.  S.  218,  53  L.  Ed.  972,  29  S. 
Ct.  633. 

Refusal  of  carrier  to  accept  interstate 
shipments. — A  carrier  incorporated  imder 
the  laws  of  the  state  of  Kentucky  can  not 
justify  its  refusal  to  accept  interstate 
shipments  of  intoxicating  liquors  con- 
signed to  localities  in  that  state  where 
local  option  prohibitory  laws  prevail,  un- 
der Ky.  Act  of  March  21,  1906,  making 
the  transportation  of  such  shipments  un- 
lawful, since  such  statute,  as  applied  to 
interstate  shipments,  is  an  unlawful  regu- 
lation of  commerce.  Louisville,  etc.,  R. 
Co.  z:  Cook  Brewing  Co.,  223  U.  S.  70, 
56  L.   Ed.   355,  32   S.   Ct.   189. 

Valid  as  the  Kentucky  legislation  un- 
doubtedly was  as  a  regulation  in  respect 
to  intrastate  shipments  of  such  articles,  it 
was  most  obviously  never  an  effective  en- 
actment in  so  far  as  it  undertook  to  regu- 


late interstate  shipments  to  dry  points. 
Loufsville,  etc.,  R.  Co.  v.  Cook  Brewing 
Co.,  223  U.  S.  70,  56  L.  Ed.  355,  32  S.  Ct. 
189. 

Same — Remedy  of  shipper, — A  shipper 
seeking  relief  because  oi  the  refusal  of 
a  carrier  to  accept  interstate  shipments  of 
intoxicating  liquors  consigned  to  local 
option  or  "dry"'  points,  which  the  carrier 
seeks  to  justify  under  a  state  statute  for- 
bidding the  transportation  of  such  ship- 
ments, which  is  attacked  as  an  unlawful 
regulation  of  commerce,  may  invoke  the 
jurisdiction  of  the  courts  without  first  ap- 
plying to  the  interstate  commerce  com- 
mission, since  the  question  involved  is 
one  of  general  law,  for  a  judicial  tril)unal 
and  one  not  competent  for  the  commis- 
sion as  a  purely  administrative  body. 
Louisville,  etc.,  R.  Co.  v.  Cook  Brewing- 
Co.,  223  U.  S.  70,  56  L.  Ed.  355,  32  S.  Ct. 
189. 

381-10.  While  property  is  in  transit. — 
The  Wilson  Act  (26  Stat,  at  L.  313.  chap. 
728,  U.  S.  Comp.  Stat.  1901,  p.  3177)  "'was 
not  intended  to  and  did  not  cause  the 
power  of  the  state  to  attach  to  an  inter- 
state commerce  shipment,  whilst  the  mer- 
chandise was  in  transit  under  such  ship- 
ment, and  imtil  its  arrival  at  the  point  of 
destination,  and  delivery  there  to  the  con- 
signee." Adams  Exp.  Co.  v.  Common- 
wealth, 214  U.  S.  218,  53  L.  Ed.  972,  29 
S.    Ct.    633. 

382-14.  When  property  is  in  transit^ 
Under  Wilson  Act. — The  Wilson  Act  (26 
Stat,  at  L.  313.  chap.  728,  U.  S.  Comp. 
Stat.  1901,  p.  3177),  which  subjects  such 
liquors  to  state  regulation,  although  still 
in  the  original  packages,  does  not  applj' 
before  actual  delivery  to  such  consignee, 
where  the  shipment  is  interstate.  Some  of 
the  many  later  cases  in  which  these  mat- 
ters have  been  so  determined  and  the 
Wilson  Act  construed  are:  Rhodes  v. 
Iowa,  170  U.  S.  412.  42  L.  Ed.  1088,  18  S. 
Ct.  664;  Vance  v.  Vandercook  Co..  Xo.  1, 
170  U.  S.  438,  42  L.  Ed.  1100,  18  S.  Ct. 
674;  Hevman  z:  Southern  R.  Co..  203  U. 
S.  270,  51  L.  Ed.  178,  27  S.  Ct.  104;  Adams 
Exp.  Co.  z:  Commonwealth,  214  U.  S.  218. 
53  L.  Ed.  972,  29  S.  Ct.  633;  Louisville, 
etc.,  R.  Co.  z:  Cook  Brewing  Co..  223  U. 
S.  70,  56  L.   Ed.  355,  32   S.   Ct.  189. 

The  transportation  is  not  complete  un- 
til deliverv  to  the  consignee.  .Adams  Exp. 
Co.  z:  Co'mmonwealth,  214  U.  S.  218,  53 
L.  Ed.  972,  29  S.  Ct.  633;  Louisville,  etc., 
R.  Co.  z:  Cook  Brewing  Co.,  223  U.  S. 
70,  56  L.   Ed.  355,  32   S.  Ct.   189. 


i33 


385-387 


INTERSTATE,  ETC.,  COMMERCE. 


\o\.  VII. 


II,  A,  2,  d,  (17),  (c),  aa;  "When  Property  Is  in  Transit,"  II,  A,  2,  d,  (17), 
(c),  bb. 

(e)    Pozcer  of  State  to  Tax  or  License — aa.   In  General. — See  note  37. 

(19)  Navigation  and  Navigable  Waters — (a)  In  General. — See,  generally, 
ante.  Due  Process  of  Law,  p.  475 ;  post.  Navigable  Waters  ;  Waters  and 
Watercourses.  See,  also,  ante,  "Navigation  and  Navigable  Waters,"  11,  A,  1, 
b,  (3),  tt,  et  seq.  ^ 

(b)  What  Constitutes  Navigable  Waters. — See  post.  Navigable  Waters. 

(c)  Regulation  of  Navigation  and  Navigable  JVaters — bb.  Navigable  Waters 
of  United  States — (aa)    In   General. — See  note  45. 


385-37.  Power  of  state  to  tax  or  li- 
cense— Traveling  salesmen  soliciting  or- 
ders.— The  annual  license  charge  imposed 
by  a  state  law  upon  the  business  of  sell- 
ing or  offering  for  sale  intoxicating  liquors 
within  the  state  by  any  traveling  sales- 
man who  solicits  orders  in  quantities  of 
less  than  five  gallons  can  not  be  regarded, 
when  applied  to  interstate  transactions, 
repugnant  to  the  commerce  clause  of  the 
federal  constitution,  in  view  of  the  pro- 
visions of  Wilson  Act  Aug.  8,  1890,  c. 
728,  26  Stat.  313  [U.  S.  Conip.  St.  1901,  p. 
3177],  that  intoxicating  liquors  coming 
into  the  state  shall  be  as  completely  un- 
der its  control  as  if  manufactured  therein. 
Judgment,  State  v.  Delamater  (S.  D. 
1905),  104  N.  W.  537,  affirmed.  Delamater 
c'.  South  Dakota,  205  U.  S.  93,  51  L.  Ed. 
724,   27    S.    Ct.   447. 

Traffic  in  original  packages. — A  license 
tax  imposed  under  municipal  ordinance 
upon  those  engaged  in  selling  beer  in  the 
city  by  the  barrel,  half  barrel,  or  quarter 
barrel  must  be  regarded,  even  when  ap- 
plied to  interstate  transactions  in  the 
original  packages,  as  an  exercise  of  the 
police  power  permitted  by  the  Wilson 
Act  of  August  8,  1890  (26  Stat,  at  L.  313, 
chap.  728,  U.  S.  Comp.  Stat.  1901,  p.  3177), 
subjecting  intoxicating  liquors  arriving 
in  a  state  to  the  laws  of  such  state  en- 
acted in  the  exercise  of  its  police  powers, 
although  the  city  may  derive  more  or  less 
revenue  from  the  ordinance  in  question. 
Phillips  V.  Mobile,  208  U.  S.  472,  52  L.  Ed. 
578,  28  S.  Ct.  370,  affirming  judgment  City 
of  Mobile  v.  Phillips  (1906),  40  So.  826,  146 
Ala.  138;  Richard  v.  Phillips,  208  U.  S. 
480,  52  L.  Ed.  581,  28  S.   Ct.  372. 

"It  is  insisted  that  congress,  by  the  pas- 
sage of  the  Wilson  Act,  merely  removed 
the  impediment  to  the  states  reaching  the 
interstate  liquor,  through  the  police  power, 
and  that  it  intended  to,  and  did,  keep  in 
existence  any  othei  impediment  to  state 
interference  with  interstate  commerce  in 
original  packages.  But  we  are  of  opinion 
that  this  section  of  the  ordinance  was 
clearlj'  an  exercise  of  the  police  power  ot 
the  state,  and,  as  such,  authorized  by  the 
act  of  congress.  The  fact  that  the  city 
derives  more  or  less  revenue  from  the  or- 
dinance in  question  does  not  tend  to  prove 


that  this  section  v;as  not  adopted  in  the 
exercise  of  the  police  power,  even  though 
it  might  also  be  an  exercise  of  the  power 
to  tax."  Phillips  z:  Mobile,  208  U.  S.  472, 
52  L.  Ed.  578,  28  S.  Ct.  370. 

387-45.  Navigable  waters  of  United 
States — In  general. — "The  principle  has 
long  been  settled  in  this  court  that  each 
state  owns  the  beds  of  all  tide  waters 
within  its  jurisdiction,  unless  they  have 
been  granted  away."  The  Abby  Dodge, 
223  U.  S.  166,  56  L.  Ed.  390,  32  S.  Ct.  310; 
Pollard  v.  Hagan,  3  How.  212,  11  E.  Ed. 
565;  Smith  v.  ^Maryland,  18  Hov/.  71,  74, 
15  L.  Ed.  270;  IMumford  v.  Wardwell,  6 
Wall.  423,  436,  18  L.  Ed.  756;  Weber  v. 
Harbor  Comm'rs,  18  Wall.  57,  66,  21  L. 
Ed.  798. 

In  like  manner  the  states  own  the  tide 
waters  themselves,  and  the  fish  in  them, 
so  far  as  they  are  capable  of  ownership 
while  running.  For  this  purpose  the  state 
represents  its  people,  and  the  ownership 
is  that  of  the  people  in  their  united  sov- 
ereignty. Martin  v.  Waddell.  16  Pet.  366, 
410,  10  L.  Ed.  997.  The  right  which  the 
people  of  the  state  thus  acquire  comes  not 
from  their  citizenship  alone,  but  from 
their  citizenship  and  property  combined. 
It  is,  in  fact,  a  property  right,  and  not  a 
mere  privilege  or  immunity  of  citizenship. 
The  Abby  Dodge,  223  U.  S.  166,  56  L.  Ed. 
390,  32  S.  Ct.  310. 

The  rights  thus  held  to  exist  in  the 
states  are  "subject  to  the  paramottnt 
right  of  navigation,  the  regulation  of 
which,  in  respect  to  foreign  and  interstate 
commerce,  has  been  granted  to  the  United 
States."  The  Abby  Dodge,  223  U.  S.  166, 
56  E.  Ed.  390,  32  S.  Ct.  310. 

Diversion  of  waters  by  riparian  owner 
into  another  state. — As  to  the  power  of  a 
state  to  prevent  a  riparian  owner  from  di- 
verting the  waters  of  a  stream  of  the  state 
into  another  state  for  use  therein,  see 
ante,  "Prohibiting  or  Impeding  Exporta- 
tion," II,  A,  2,  d,  (8),  (b). 

Fish  and  oysters. — See  ante,  "Fish  and 
Oysters,"  II,  A,  2,  d,  (11).  See,  also,  ante, 
FISH  AND  FISHERIES,  p.  583;  post, 
OYSTERS. 

Sponges. — As  to  the  power  of  the 
United  States  to  exclude  sponges  taken 
in   state   territorial  waters,   see   ante,   "Ex- 


734 


\'ol.  VII. 


IXTERSTATE,  ETC.,  COMMERCE. 


394-409 


(bb)  In  Absence  of  Congressional  Action. — See  ante.  "In  General,"  II,  A,  1, 
b,  (3),  (b),  tt,  (bb),  aaa;  "In  General,"  II,  A,  2,  d,  (19),  (c),  bb,  (aa). 

(ee)  Particular  Regulation  Considered. — See,  generally,  ante,  "In  General," 
II,  A,  2,  d,   (19),  (c),  bb,   (aa). 

eee.  Marine  Torts. — The  grant  of  admiralty  jurisdiction,  followed  and  con- 
strued by  the  Judiciary  Act  of  1789  (1  Stat,  at  L.  77,  chap.  20,  §  9),  "saving  to 
suitors,  in  all  cases,  the  right  of  a  common-law  remedy  where  the  common  law 
is  competent  to  give  it"  (Rev.  Stat.,  §  563,  cl.  8,  U.  S.  Comp.  Stat.  1901,  p.  457), 
leaves  open  the  common-law  jurisdiction  of  the  state  courts  over  torts  committed 
at  sea.'"'^ 

(21)  Pilot  Regulations — (  f  j  Pilotage  at  Ports  .Situated  upon  Boundary  of 
Tzvo  States. — See  note  50. 

(22)  Quarantine  Laws. — See  ante,  Animals,  p.  27. 

(23)  Railroads  and  Other  Carriers — (a)    In  General. — See  note  76. 


elusion  of  Imports — Establishment  of 
Standards,''  II,  A,  1,  b.  (3),  (b),  hh. 

Obstructions  in  waters. — Where  the 
river  is  a  navigable  stream,  entirely  within 
the  state,  in  the  absence  of  any  statute  by 
congress,  the  state  has  plenary  power  in 
regard  to  such  waters.  Obstructions  in 
those  waters  may  be  offenses  against  the 
laws  of  the  state,  but  constitute  no  offense 
against  the  United  States  in  the  absence 
of  a  statute.  Williamette  Iron  Bridge  Co. 
V.  Hatch,  125  U.  S.  1,  31  L.  Ed.  629,  8  S. 
Ct.  811;  North  Shore  Boom,  etc.,  Co.  r. 
Nicomen  Boom  Co.,  212  U.  S.  406,  53  L. 
Ed.  574.  29   S.  Ct.  355. 

394-90a.  Marine  torts. — The  Hamilton, 
207  U.  S.  398,  52  L-  Ed.  264,  28  S.  Ct.  133. 

The  same  argument  that  deduces  the 
legislative  power  of  congress  from  the 
jurisdiction  of  the  national  courts,  tends 
to  establish  the  legislative  power  of  the 
state  where  congress  has  not  acted.  The 
Hamilton,  207  U.  S.  398,  52  L.  Ed.  264.  28 
S.   Ct.  133. 

Applying  to  a  claim  for  a  death  on  the 
high  seas,  due  to  a  tortious  collision  of 
two  vessels  belonging  to  Delaware  cor- 
porations, the  provision  of  Act  Del.  Jan. 
26,  1886,  as  amended  by  Act  March  9,  1901, 
authorizing  personal  representatives  to 
maintain  an  action  and  recover  damages 
for  a  death  occasioned  b}^  unlawful  vio- 
lence or  negligence,  does  not  render  such 
provision  repugnant  to  either  the  com- 
merce or  admiralty  clauses  of  the  federal 
constitution,  where  congress  has  not  leg- 
islated upon  the  subject.  Judgment,  The 
Hamilton  (1906),  146  F.  724,  77  C.  C.  A. 
150;  The  Saginaw,  Id.,  affirmed.  The 
Hamilton.  207  U.  S.  398,  52  L.  Ed.  264.  28 
S.  Ct.  133. 

405-50.  Pilotage  at  ports  situated  upon 
boundary  of  states. — The  state  of  Louisi- 
ana ma\'  make  it  a  criminal  offense  for  a 
pilot  not  duly  qualified  under  its  laws  to 
pilot  a  foreign  vessel  from  the  Gulf  of 
Mexico  to  Xew  Orleans,  La.,  although  he 
holds  a  license  issued  under  the  author- 
ity of  the  state  of  Mississippi;  since  Xew 
Orleans,  although  upon  the  Mississippi 
river,   is  not   "situate   upon   waters  which 


are  the  boundary  between  two  states," 
within  the  meaning  of  Rev.  St.  U.  S.,  § 
4236  (U.  S.  Comp.  St.  1901,  p.  2903).  au- 
thorizing the  master  of  any  vessel  coming 
into  or  going  out  of  any  port  so  situated 
to  employ  any  pilot  duly  licensed  or  ati- 
thorized  by  the  laws  of  either  of  the  states 
bounded  on  such  waters  to  pilot  a  vessel 
to  or  from  such  port,  the  limit  of  the 
waters  so  referred  to  being  the  point  at 
which  they  cease  to  be  a  boundary  be- 
tween the  two  states.  Leech  v.  Louisiana, 
214  U.  S.  175,  53  L.  Ed.  956,  29  S.  Ct.  552, 
affirming  judgment  (1907),  State  v.  Leech, 
44  So.  285,  119  La.  522. 

With  reference  to  the  contention  of  the 
plaintiff  in  error  in  this  case  the  court 
says:  "'The  case  for  the  plaintiff  in  error 
depends  upon  the  assumption  that  the 
'waters  which  are  the  boundary  between 
two  states'  are,  in  this  case,  the  whole 
Mississippi  river  so  far  as  navigable.  We 
are  of  the  opinion  that  the  assumption  is 
wrong,  arid  that  the  limit  of  the  waters 
referred  to  is  the  point  at  which  thej' 
cease  to  be  a  boundary  between  two 
states.  Neither  continuit}^  of  water  nor 
identity  of  name  will  carry  them  beyond 
that  point.  If  the  plaintiff  in  error  had 
undertaken  to  pilot  from  the  Gulf  to  Nat- 
chez, a  different  question  would  have 
been  presented,  and  it  may  be  that  in  that 
case  the  IMississippi  license  would  have 
been  good.  But  New  Orleans,  although 
upon  the  Mississippi,  is  not  situate  upon 
waters  which  are  the  boundary  between 
two  states,  and  therefore  the  section  re- 
lied upon  does  not  apply.  That  being  out 
of  the  way,  Louisiana  had  power  to  pass 
her  local  regulations."  Leech  z'.  Louisi- 
ana, 214  U.  S.  175,  53  L.  Ed.  956,  29  S.  Ct. 
552. 

409-76.  Railroads — In  general. — The 
want  of  power  in  a  state  to  interfere  with 
an  interstate  commerce  train,  if  thereby  a 
direct  burden  is  imposed  upon  interstate 
commerce,  is  settled  bevond  question. 
The  Employers'  Liability  Cases,  207  U.  S. 
463,  52  L.  Ed.  297,  28  S.  Ct.  141.  See,  gen- 
erally, ante,  CARRIERS,  p.  216;  post, 
RAILROADS. 


735 


411 


INTBRSTATB,  ETC.,  COMMERCE. 


Vol.  VII. 


(b)  Purchase  or  Consolidation  of  Competing  Lines. — See  note  85. 

(c)  Regulation  of  Charges  for  Transportation — aa.    In   General.— 
86,  87. 


■See  notes 


411-85.  Purchase  or  consolidation  of 
competing  lines. — Interstate  commerce  is 
not  burdened  by  requiring  railroad  com- 
panies to  operate  a  particular  line  which 
they  selected,  or  represented  that  they 
had  selected,  in  a  petition  to  the  state 
railroad  commission  for  approval  of  a  con- 
solidation, although  compliance  may  en- 
tail expense,  or  require  the  exercise  of 
eminent  domain.  Judgment  (1906),  41  So. 
259,  89  Miss.  724,  affirmed.  Mobile,  etc., 
R.  Co.  V.  Mississippi,  210  U.  S.  187,  52  L. 
Ed.  1016.  28  S.  Ct.  650.  See,  generally, 
ante,  CORPORATIONS,  p.  381;  post, 
RAILROADS. 

411-86.  Regulation  of  rates — Generally. 
—See  ante,   CARRIERS,  p.  216. 

411-87.  Regulation  of  interstate  rates. — 
It  is  not  necessary  to  review  the  cases  in 
the  federal  supreme  court  which  have 
settled  beyond  peradventure  that  the  na- 
tional government  has  exclupive  author- 
ity to  regulate  interstate  commerce  under 
the  constitution  of  the  United  States;  nor 
to  do  more  than  reaffirm  the  equally  well 
settled  proposition  that  over  interstate 
commerce  transportation  rates  the  state 
has  no  jurisdiction,  and  that  an  attempt 
to  regulate  such  rates  by  the  state  or  un- 
der its  authority  is  void.  Louisville,  etc., 
R.  Co.  V.  Eubank,  184  U.  S.  27,  46  L.  Ed. 
416,  22  S.  Ct.  277.  And  an  order  made  by 
a  state  commission  mider  assumed  author- 
ity of  the  state,  which  directly  burdens  or 
regulates  interstate  commerce,  will  be 
enjoined.  McNeill  v.  Southern  R.  Co., 
302  U.  S.  543,  50  L.  Ed.  1142,  26  S.  Ct.  722; 
Railroad  Comm.  v.  Worthington,  225  U. 
S.  101,  56  L.  Ed.  1004.  1008.  32  S.  Ct.  653. 

Power  of  Ohio  commission  to  regulate 
rate  on  "lake-cargo  coal." — An  unconsti- 
tutional attempt  directly  to  regulate  and 
control  interstate  commerce  is  made  by 
an  order  of  the  Ohio  Railroad  Commis- 
sion establishing  a  freight  rate  on  "lake- 
cargo  coal''  billed  from  Ohio  coal  fields 
to  Ohio  ports  on  Lake  Erie,  where  such 
rate  is  applicable  only  to  such  coal  as  is 
in  fact  placed  upon  vessels  at  those  ports 
for  carriage  to  points  outside  the  state, 
and  covers  the  actual  placing  of  such  coal 
upon  the  vessels,  and  the  trimming  or  dis- 
tributing of  it  in  the  holds  so  that  the 
vessels  may  safely  proceed  on  their  inter- 
state journey.  Railroad  Comm.  v.  Wor- 
thington, 225  U.  S.  101,  56  L.  Ed.  1004,  32 
S.  Ct.  653. 

With  reference  to  the  character  of  the 
transportation  in  this  case,  the  court  says: 
"The  question  is,  then,  one  of  fact.  Does 
the  transportation,  which  the  rate  pre- 
scribed by  the  Railroad  Commission  of 
Ohio  covers,  constitute  interstate  com- 
merce?    The   shipper  transports   the   coal 


ordinarily  upon  bills  of  lading  to  himself, 
or  to  another  for  himself,  at  Huron  on 
Lake  Erie.  The  so-called  'lake  cargo  coal' 
is  necessarily  shipped  beyond  Huron.  If 
it  stops  there,  another  and  higher  rate 
applies.  Practically  all  of  it  is  put  on  ves- 
sels for  carriage  beyond  the  state,  usually 
to  upper  lake  ports,  and  then,  and  only 
then,  the  70  cent  rate  fixed  by  the  com- 
mission applies.  This  70  cent  rate  covers 
the  transportation  of  the  coal  to  Huron, 
the  placing  of  it  on  board  vessels,  and,  if 
necessary,  trimming  it  for  continuance 
of  its  interstate  journey.  The  situation 
then  conies  to  this:  that  the  rate  put  in 
force  is  applicable  only  to  coal  which  is 
to  be  carried  from  the  mine  in  Ohio  to  the 
lake,  there  placed  upon  vessels,  and  thence 
carried  to  upper  lake  ports  beyond  the 
state.  By  every  fair  test  the  transporta- 
tion of  this  coal  from  the  mine  to  the 
upper  lake  ports  is  an  interstate  carriage, 
intended  by  the  parties  to  be  such,  and 
the  rate  fixed  by  the  commission,  which  is 
in  controversy  here,  is  applicable  alone  to 
coal  which  is  thus,  from  the  beginning  to 
the  end  of  its  transportation,  in  interstate 
carriage,  and  such  rate  is  intended  to  and 
does  cover  an  integral  part  of  that  car- 
riage, the  transportation  from  the  mine  to 
lake  Erie  port,  the  placing  upon  the 
vessel,  and  the  trimming  or  distributing 
in  the  hold,  if  required,  so  that  the  vessel 
may  complete  such  interstate  carriage. 
We  therefore  reach  the  conclusion  that, 
under  the  fact  shown  in  this  case,  the 
Railroad  Commission,  in  fixing  the  rate  of 
70  cents  for  the  transportation  above  de- 
scribed, attempted  to  directly  regulate 
and  control  interstate  commerce.''  Rail- 
road Comm.  7'.  Worthington,  225  U.  S. 
101.  56  L.  Ed.  1004,  32  S.  Ct.  653,  distin- 
guishing. Gulf,  etc.,  R.  Co.  V.  Texas.  204 
U.  S.  403,  5]    L.  Ed.  540. 

State  law  compelling  carrier  to  receive 
and  carry  interstate  shipment  on  through 
rate. — Congress  has  so  completely  taken 
control  of  the  subject  of  rate  making 
and  charging  by  the  provisions  of  the  act 
to  regulate  commerce  and  tlie  amend- 
ments thereof  as  to  invalidate  the  provi- 
sions of  Code  N.  C.  1905,  §  2631,  so  far  as 
they  penalize  the  refusal  of  a  carrier  to 
receive  a  tender  of  freight  for  transporta- 
tion to  a  point  on  the  line  of  another  car- 
rier outside  the  state  where  no  rate  for 
such  shipment  has  been  established,  filed, 
or  published.  Southern  R.  Co.  v.  Reid, 
222  U.  S.  .424,  56  L.  Ed.  257,  32  S.  Ct.  140, 
followed  in  Southern  R.  Co.  v.  Reid.  222 
U.  S.  444.  56  L.  Ed.  263,  32  S.  Ct.  145. 

Congress  has  so  completely  taken  con- 
trol of  the  subject  of  railroad  rate  mak- 
ing and  charging  as  to  invalidate  the  pro- 


736 


Vol.  VII. 


INTERSTATE,  ETC.,  COMMERCE. 


417-419 


(e)     Regulations  to  Prevent  Injuries  by  Carriers— cc.    Regulation  zvith  Re- 
gard to  Speed  of  Trains  and  Other  Precautions. — See  note  6. 

(i)    Requiring  Trains  to  Stop  at  Certain  Stations.— See  note  20. 


visions  of  a  state  statute  so  far  as  they 
penalize  the  refusal  of  a  railway  carrier 
to  receive  a  tender  of  freight  for  transpor- 
tation to  a  point  on  the  line  of  another 
carrier  outside  the  state,  where  the  car- 
rier had  no  rate  for  such  shipment. 
Southern  R.  Co.  ?'.  Burlington  Lumber 
Co.,  225  U.  S.  99,  56  L.  Ed.  1001,  32  S.  Ct. 
657. 

This  is  an  action  to  recover  penalties 
under  a  statute  of  North  Carolina  for  re- 
fusal to  receive  goods  for  shipment.  As 
the  statute  is  the  same  that  was  held  bad, 
so  far  as  it  concerns  commerce  among  the 
states  in  Southern  R.  Co.  z:  Reid,  222  U. 
S.  424,  56  L.  Ed.  257,  32  S.  Ct.  140,  and 
Southern  R.  Co.  v.  Reid,  222  U.  S.  444,  56 
L.  Ed.  263,  32  S.  Ct.  145,  a  short  statement 
will  be  enough.  On  January  26,  1907,  the 
Burlington  Lumber  Company  tendered 
the  railway  company  at  Burlington,  North 
Carolina,  certain  machinery  for  shipment 
to  Saginaw,  Michigan,  on  a  through  bill 
of  lading.  Saginaw  was  not  on  the  rail- 
way company's  line,  the  company  had  no 
rates  to  Saginaw,  and  the  agent  had  to  de- 
lay in  order  to  inquire  of  his  superiors. 
The  result  was  that  the  through  bill  of 
lading  was  not  issued  until  April  3.  The 
suit,  as  we  have  said,  is  for  the  penalty, 
and  nothing  else.  The  supreme  court  of 
the  state  decided  against  the  railway  on 
the  same  ground  that  it  did  in  the  de- 
cisions already  reversed.  In  the  circum- 
stances it  seems  unnecessary  to  discuss 
the  case  more  at  length.  Southern  R.  Co. 
V.  Burlington  Lumber  Co.,  225  U.  S.  99, 
56  L.   Ed.   1001,  1003,  32   S.   Ct.   657. 

417-6.  Regulations  with  regard  to  speed 
of  trains  and  other  precautions. — A  state 
may  regulate,  at  least,  in  the  absence  of 
congressional  action  upon  the  same  sub- 
ject matter,  the  manner  in  which  inter- 
state trains  shall  approach  dangerous 
crossings,  the  signals  which  shall  be 
given,  and  the  control  of  the  trains  which 
shall  be  required  under  such  circum- 
stances. Southern  R.  Co.  v.  King,  217  U. 
S.  524,  54  L.  Ed.  868,  30  S.  Ct.  594,  affirm- 
ing judgment  (1908),  160  F.  332,  87  C.  C. 
A.  284. 

Hours  of  labor  of  employees. — As  to 
the  power  of  the  state  to  legislate  with 
respect  to  the  hours  of  labor  of  employees 
engaged  in  the  movement  of  interstate 
trains,  even  though  such  trains  are  en- 
gaged also  in  the  movement  of  local 
traffic,  see  ante,  "Hours  of  Labor,"  11,  A, 
1,  b,  (3),  (b),  dd,  (cc  1-2),  ddd. 

Equipment  of  trains — Number  required 
in  train  crew,  etc. — Congress,  in  its  dis- 
cretion, may  take  entire  charge  of  the 
whole  subject  of  the  equipment  of  inter- 
state cars,  and  establish  such  regulations 


as  are  necessary  and  proper  for  the  pro- 
tection of  those  engaged  in  interstate 
commerce.  But  it  has  not  done  so  in 
respect  to  the  number  of  employees  to 
whom  may  be  committed  the  actual  man- 
agement of  interstate  trains  of  any  kind. 
It  has  not  established  any  regulations  on 
that  subject,  and  until  it  does,  the  statutes 
of  the  state,  not  in  their  nature  arbitrary, 
and  which  really  relate  to  the  rights  and 
duties  of  all  within  the  jurisdiction,  must 
control.  Chicago,  etc.,  R.  Co.  v.  Arkansas, 
219  U.  S.  453,  55  L.   Ed.  290,  31   S.  Ct.  275. 

Prescribing  a  minimum  of  three  brake- 
men  for  freight  trains  of  more  than 
twenty-five  cars,  operated  in  the  state,  as 
IS  done  by  Laws  Ark.  1907,  No.  116,  does 
not  amount  to  an  unconstitutional  regula- 
tion of  interstate  commerce  when  applied 
to  a  foreign  company  engaged  in  such 
commerce.  Chicago,  etc.,  R.  Co.  v.  Ar- 
kansas, 219  U.  S.  453,  55  L.  Ed.  290,  31  S. 
Ct.  275,  affirming  86  Ark.  312,  111  S  W 
456. 

419-20.  Requiring  interstate  trains  to 
stop  at  certain  stations. — When  an  order 
made  under  state  authority  to  stop  an  in- 
terstate train  is  assailed  because  of  its  re- 
pugnancy to  the  interstate  commerce 
clause,  the  question  whether  such  order 
is  void  as  a  direct  regulation  of  such  com- 
merce may  be  tested  by  considering  the 
nature  of  the  order,  the  character  of  the 
interstate  commerce  train  to  which  it  ap- 
plies, and  its  necessary  and  direct  effect 
upon  the  operation  of  such  train.  But  the 
effect  of  the  order  as  a  direct  regulation 
of  interstate  commerce  may  also  be  tested 
by  considering  the  adequacy  of  the  local 
facilities  existing  at  the  station  or  stations 
at  which  the  interstate  commerce  train 
has  been  commanded  to  stop.  Atlantic, 
etc.,  R.  Co.  v.  Wharton,  207  U.  S.  328,  52 
L.  Ed.  230.  234,  28  S.  Ct.  121. 

The  extent  of  the  right  to  control 
through  interstate  transportation  of  pas- 
sengers by  state  legislation,  or  under  or- 
ders of  a  commission  authorized  by  the 
state,  has  been  recently  before  the  federal 
supreme  court.  ]\IIssissippi  R.  Comm.  v. 
Illinois  Cent.  R.  Co.,  203  U.  S.  335,  51  L. 
Ed.  209,  27  S.  Ct.  90;  Atlantic,  etc.,  R.  Co. 
V.  Wharton,  207  U.  S.  328,  52  L.  Ed.  230,  28 
S.  Ct.  121. 

The  principle  to  be  deduced  from  these 
cases  is,  that  where  a  railroad  company 
has  already  provided  ample  facilities  for 
the  adequate  accommodation  of  the  travel- 
ing public,  such  as  may  be  proper  and 
reasonable  at  any  given  point,  and  oper- 
ates interstate  cominerce  trains,  carry- 
ing passengers,  through  the  same  places, 
at  which  such  interstate  trains  do  not 
stop,  a  state  regulation  which  requires  the 


12  U  S  Enc— 47 


737 


422 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


(j)  Regulations  ivith  Respect  to  Liability  of  Carriers — bb.  Liability  beyond 
Carrier's  Own  Lines. — See  ante,  "In  General,"  II,  A,  2,  d,  (23),  (c),  aa. 

cc.  Penalising  Delay  in  Settlement  of  Claims. — A  state  law  which  penalizes 
the  failure  to  adjust  and  pay  within  a  specified  time  claims  for  loss  or  damage  to 
goods  by  carriers  while  in  their  possession  is  not  an  unlawful  interference  with 
mterstate  commerce,  even  as  applied  to  an  interstate  shipment.  In  so  far  as  it 
may  affect  interstate  commerce,  it  is  an  aid  thereto  by  its  tendency  to  promote 
safe  and  prompt  delivery  of  goods,  or  its  legal  equivalent,  prompt  settlement  of 
proper  claims  for  damages. -^^ 

(k)  Rights  and  Privileges  of  Passengers — bb.  Equal,  but  Separate,  Accom- 
modations for  White  and  Colored  Passengers. — See  ante,  Civii.  Rights,  p.  236. 
See,  also,  ante,  "Ecjual  Accommodations  to  Passengers,"  II,  A,  1,  b,  (3),  (b), 
dd,  (cc). 

(1)    Facilities  for  Transportation. — See  note  31. 


stopping  of  such  interstate  trains,  in  ad- 
dition to  ample  facilities  already  provided, 
to  the  detriment  and  hinderance  of  inter- 
state traffic,  is  an  unlawful  regulation  and 
burden  upon  interstate  commerce.  Hern- 
don  V.  Chicago,  etc.,  R.  Co..  218  U.  S.  135, 
54  L.  Ed.  970,  30  S.  Ct.  633. 

An  order  made  under  state  authority, 
requiring  a  railroad  company  to  stop  on 
signal  two  of  its  through  fast  mail  trains 
running  between  Jersey  City,  New  Jersey, 
and  Tampa,  Florida,  at  a  small  town  in 
South  Carolina  which  is  also  the  junction 
point  with  a  small  branch  road,  is  void  as 
a  direct  regulation  of  interstate  commerce, 
where,  in  addition  to  several  local  trains 
daily,  the  residents  of  such  town  are  fur- 
nished daily  one  slower  through  train 
each  way.  Judgment,  Railroad  Com'rs  v. 
Atlantic  Coast  Line  R.  Co.  (1906),  54  S.  E. 
224,  74  S.  C.  80,  reversed  Atlantic,  etc.,  R. 
Co.  V.  Wharton,  207  U.  S.  328,  52  L.  Ed. 
230,  28  S.  Ct.  121. 

The  requirement  that  passenger  trains 
shall  stop  at  all  junction  points  of  other 
roads,  which  is  made  by  Act  Mo.  March 
19,  1907  (Laws  1907,  p.  185),  amending 
Rev.  St.  Mo.  1899,  §  1075  (Ann.  St.  1906, 
p.  923),  amounts  to  an  unnecessary  and 
unlawful  burden  upon  interstate  commerce 
if  such  requirement  is  construed  to  neces- 
sitate the  stoppage  of  through  interstate 
trains  for  the  transfer  of  passengers  from 
one  road  to  another,  when  ample  facilities 
for  the  traveling  public  are  already  pro- 
vided, and  severe  detriment  and  hindrance 
to  interstate  traffic  will  result.  Herndon 
V.  Chicago,  etc.,  R.  Co.,  218  U.  S.  135,  54 
L.  Ed.  970,  30  S.  Ct.  633;  Roach  v.  Atchi- 
son, etc.,  R.  Co.,  218  U.  S.  159,  54  L.  Ed. 
978,  30  S.  Ct.  639.  Affirming  decree  Chi- 
cago, R.  L  &  P.  Ry.  Co.  V.  Swanger  (C.  C. 
1908),  157  F.  783. 

This  Statute  Act  Mo.  March  19,  1907 
(Laws  1907,  p.  185).  Amending  Rev.  St. 
Mo.  1899,  §  1075  (Am.  St.  1906,  p.  923),  is 
not  of  that  class  passed  in  the  exercise  of 
the  police  power  of  the  state  for  the  pro- 
motion of  the  public  safety,  and  requiring 
the  stoppage  of  trains  by  one  railroad  be- 


fore crossing  the  tracks  of  another  rail- 
road; this  statute,  as  its  second  section 
shows,  was  passed  for  the  purpose  of  pro- 
viding greater  facilities  of  travel,  and  not 
for  the  protection  of  life  and  limb.  Hern- 
don V.  Chicago,  etc.,  R.  Co.,  218  U.  S.  135, 
54  L.  Ed.  970,  30  S.  Ct.  633. 

422-28a.  Penalizing  delay  in  settlement 
of  claims. — Atlantic,  etc.,  R.  Co.  v.  Maz- 
ursky,  216  U.  S.  122,  54  L.  Ed.  411,  30  S. 
Ct.  378. 

Penalizing  the  failure  to  adjust  and  pay 
within  a  specified  time  claims  for  loss  or 
damage,  as  is  done  by  Act  S.  C.  Feb.  33, 
1903  (24  St.  at  Large,"p.  81),  §  2,  does  not 
unlawfully  interfere  with  interstate' com- 
merce, even  as  applied  to  shipments  from 
without  the  state,  where  the  statute  is 
construed  by  the  state  courts  as  affecting 
only  the  liability  of  carriers  doing  busi- 
ness in  the  state,  for  property  lost  or  dam- 
aged while  in  their  possession.  Atlantic, 
etc.,  R.  Co.  V.  Mazursky,  216  U.  S.  122,  54 
L.  Ed.  411,  30  S.  Ct.  378,  affirming  judg- 
ments. Charles  v.  Atlantic  Coast  Line  R. 
Co.,  58  S.  E.  927;  McTeer  v.  Southern 
Express  Co.,  58  S.  E.  930;  Mazursky  v.  At- 
lantic Coast  Line  R.  Co.,  58  S.  E.  931;  Von 
Lehe  v.  Atlantic  Coast  Line  R.  Co.,  59  S. 
E.  1135. 

422-31.  Adequate  facilities  for  trans- 
portation— Equal  accommodations. — Com- 
pelling a  carrier  by  mandatnus  to  dis- 
charge its  common-law  duty  to  treat  all 
shippers  alike  by  resuming  the  transfer  of 
cars  loaded  and  unloaded  between  the  line 
of  a  connecting  carrier  and  the  flour  mill 
and  elevator  of  a  particular  shipper  is  not 
beyond  the  power  of  the  state  court,  at 
least,  until  congress  or  the  interstate  com- 
merce commission  takes  specific  action, 
although  both  carriers  are  engaged  in  in- 
terstate commerce,  and  three-fifths  of  the 
output  of  the  mill  are  shipped  out  of  the 
state.  Judgment  (1906)  Larabee  Flour 
Mills  Co.  V.  Missouri  Pac.  Ry.  Co.,  88  P. 
72,  74  Kan.  808,  affirmed.  Missouri  Pac. 
R.  Co.  V.  Larabee  Flour  Mills  Co.,  211  U.  ' 
S.  612,  53  L.   Ed.  352,  29  S.  Ct.  214. 

Regulations    of   American    Railway   As- 


738 


\'ol.  MI. 


INTERSTATE,  ETC.,  COMMERCE. 


423 


in)  Regulating  Relation  of  Master  and  5^rz'a«^— Employers'  Liability 
Acts. — The  laws  of  the  several  states  are  determinative  of  the  HabiHty  of  em- 
ployers engaged  in  interstate  commerce  for  injuries  received  by  their  employees 
while  engaged  in  such  commerce  so  long  as  congress,  although  empowered  to 
regulate  that  subject,  has  not  acted  thereon,  because  the  subject  is  one  which 
falls  within  the  police  power  of  the  states  in  the  absence  of  action  by  congress/''^^ 


sociation  —  Fairness     and     sufficiency. — 

Power  to  determine  the  validity  and  suf- 
ficiency of  the  rules  and'  regulations  of 
the  American  Railwaj'-  Association  v.'ith 
respect  to  matters  of  interstate  commerce, 
which  rules  govern  ninety  per  cent  of  the 
railroads,  and  hence  a  vast  proportion  of 
the  interstate  commerce  of  the  country, 
is  vested  primarily  in  congress  and  in  the 
interstate  commerce  commission  and,  is 
not  to  be  tested  by  state  laws  or  by  deci- 
sions of  the  state  courts.  St.  Louis,  etc., 
R.  Co.  V.  Arkansas,  217  U.  S.  136,  54  L. 
Ed.  698,  30  S.  Ct.  476. 

Same — Interchange  of  cars — Penalty  for 
failure  to  supply  cars  on  demand. — For 
example  the  validity  and  sufficiency  of  the 
rules  of  such  association  w^ith  the  respect 
of  the  interchange  of  cars  by  roads  en- 
gaged in  interstate  commerce  is  a  ques- 
tion which  can  not  be  tested  bj^  the  deci- 
sions of  state  courts  nor  by  state  laws; 
and  a  state  law  which  undertakes  to  com- 
pel the  roads  within  the  state  to  supply 
cars  .to  shippers  on  demand  under  very 
heavy  penalties  in  case  of  failure  to  do  so, 
thereby  putting  the  road  in  the  position 
of  having  to  pay  such  penalties  or  with- 
draw large  numbers  of  its  cars  from  the 
uses  of  interstate  commerce  and  from  in- 
terchange of  cars  with  interstate  roads  in 
accordance  with  the  rules  of  the  Ameri- 
can Railway  Association,  is  unconstitu- 
tional as  burdening  interstate  commerce. 
St.  Louis,  etc.,  R.  Co.  v.  Arkansas,  217  U. 
S.  136,  54  L.  Ed.  698,  30  S.  Ct.  476. 

Interstate  commerce  is  unconstitution- 
ally regulated  by  Kirby's  Dig.  Ark.,  §§ 
6803,  6804,  making  it  the  carrier's  duty  to 
supply  cars  to  shippers  on  demand,  under 
which  a  carrier  will  either  be  compelled  to 
desist  from  the  interchange  of  cars  with 
connecting  lines  for  the  purpose  of  mov- 
ing interstate  commerce  because  of  a  re- 
fusal of  the  state  courts  to  permit  it  to 
avail  itself,  as  causing  and  excusing  its  de- 
fault, of  the  rules  and  regulations  adopted 
for  the  interchange  of  cars  by  the  Ameri- 
can Railway  zAssociation,  which  govern 
90  per  cent  of  the  railways  in  the  United 
States,  or  will  be  obliged  to  conduct  such 
business  with  the  certainty  of  being  sub- 
jected to  the  heavy  penalties  provided  by 
the  statute.  Judgment  (1907),  107  S.  W. 
1180,  85  Ark.  311,  122  Am.  St.  Rep.  33,  re- 
versed. St.  Louis,  etc.,  R.  Co.  v.  Arkan- 
sas, 217  U.  S.  136,  54  L.  Ed.  698,  30  S.  Ct. 
476. 

Requiring  additional  train  service. — In- 
terstate   commerce    is     not    directly    bur- 


dened, in  violation  of  the  federal  constitu- 
tion, by  an  order  of  a  state  railroad  com- 
mission, directing  an  interstate  railway 
company  to  discharge  its,  corporate  duty 
by  afitording  passenger  train  service  be- 
tween the  terminus  of  a  branch  line  with- 
in the  state  and  the  point  of  intersection 
with  the  state  line,  although,  to  avoid  the 
useless  expense  of  establishing  terminal 
facilities  at  that  point,  the  passenger  serv- 
ice directed  by  the  order  must  be  operated 
not  only  to  the  state  line,  but  some  20 
miles  beyond,  where  such  facilities  do  ex- 
ist. Judgment,  State  v.  Missouri  Pac.  Ry. 
Co.  (1907),  92  P.  606,  76  Kan.  467,  affirmed. 
]\Iissouri  Pac.  R.  Co.  v.  Railroad  Comm., 
216  U.  S.  262,  54  L.  Ed.  492,  30  S.  Ct.  330. 
Requiring  trains  to  stop  at  certain  sta- 
tions.— See  ante,  "Requiring  Trains  to 
S'top  at  Certain  Stations,''  II,  A,  2,  d, 
(23),    (i). 

J  423-35a.     Regulating  relation  of  master 
and  servant — Employers'  Liability  Acts. — 

Second  Employers'  Liability  Cases,  223  U. 
S.  1,  56  L.  Ed.  327,  32  S.  Ct.  169.  See, 
also,  ante,  "Employers'  Liability  Acts,"  11, 
A,  1,  b,  (3),  (b),  dd,  {cc^A),  eee.  See, 
also,  ante,  CONSTITUTIONAL  LAW, 
p.  264;  FELLOW  SERVANTS,  p.  579; 
post,  MASTER  AND  SERVANT:  PO- 
LICE  POWER. 

Appljnng  to  interstate  transportation 
the  provisions  of  Act  Pa.  April  4,  1868, 
restricting,  as  against  a  railway  company', 
the  rights  of  persons  injured  in  the  course 
of  their  employment  in  or  about  the  rail- 
road to  those  which  an  employee  of  the 
railway  company  would  have  under  like 
circumstances,  does  not  make  such  stat- 
ute repugnant  to  the  commerce  clause  of 
the  federal  constitution.  Judgment  (1905), 
76  N.  E.  1129,  72  Ohio  St.  ""659.  affirmed. 
Martin  v.  Pittsburg,  etc.,  R.  Co.,  203  U. 
S.  284,  51  L.  Ed.  184,  27  S.  Ct.  100. 

Nebraska  statute  modifying  rules  as  to 
comparative  and  contributory  negligence. 
— Until  congress  acted  in  the  matter, 
there  was  no  repugnancy  to  the  commerce 
clause  of  the  federal  constitution  in  the 
provisions  of  Neb.  Comp.  Stat.,  chap.  21, 
§  4,  under  which  the  contributory  negli- 
gence of  a  railway  employee  injured  while 
engaged  in  interstate  commerce  did  not 
bar  a  recovery  from  the  company,  where 
his  negligence  was  slight  and  that  of  the 
company  was  gross  in  comparison,  the 
damages  being  diminished  in  proportion 
to  the  amount  of  negligence  attributable 
to   the    injured   employee.      Missouri    Pac. 


r39 


423-424 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


Power  of  Congress  to  Supersede  State  Law. — The  inaction  of  congress, 
however,  in  nowise  affects  its  power  over  the  subject,  and  where  congress  has 
acted,  the  law  of  the  state,  in  so  far  as  it  covers  the  same  field,  is  superseded, 
since  that  which  is  not  supreme  must  yield  to  that  which  is.^^'' 

Hours  of  Labor  of  Employees. — As  to  the  power  of  a  state  to  legislate 
concerning  the  hours  of  labor  of  employees  engaged  in  the  operation  of  trains 
carrying  both  local  and  interstate  freight  since  the  enactment  of  the  Act  of 
March  4,  1907,  c.  2939,  34  Stat.  1415  (U.  S.  Comp.  St.,  Supp.  1909,  p.  1170), 
see  ante,  "Hours  of  Labor,"  11,  A,  1,  b,  (3),  (b),  dd,  ^cj^),  ddd. 

(24)  Sale  of  Goods. — See  note  36. 

(25)  Telegraph  Companies — (a)  In  General. — See  post.  Telegraphs  and 
Telephones. 

(b)  Buildings,  Poles  and  Wires. — See  post,  Licenses;  Police  Power;  Tele- 
graphs AND  Telephones. 

(c)  Transmission  and  Delivery  of  Messages- — aa.    In  General. — See  note  43. 


R.  Co.  V.  Castle,  224  U.  S.  541,  56  L.  Ed. 
875,  32   S.   Ct.  606. 

Since,  at  the  time  the  plaintifif  received 
the  injuries  complained  of,  there  was  no 
subsisting  legislation  by  congress  affect- 
ing the  liability  of  railway  companies  to 
their  employees,  under  the  conditions 
shown  in  this  case,  the  state  was  not  de- 
barred from  thus  legislating  for  the  pro- 
tection of  railway  employees  engaged  in 
interstate  commerce.  Missouri  Pac.  R. 
Co.  V.  Castle,  224  U.  S.  541.  56  L.  Ed.  875, 
32  S.  Ct.  606.  See  Second  Employers'  Lia- 
bility Cases,  223  U.  S.  1,  56  L.  Ed.  327,  32 
S.  Ct.  169;  Chicago,  etc.,  R.  Co.  v.  Solan, 
169  U.  S.  133,  42  L.  Ed.  688,  18  S.  Ct.  280. 

The  validity  of  Neb.  Comp.  Stat.,  chap. 
21,  §§  3,  4,  in  so  far  as  they  impose  lia- 
bility upon  a  railway  company  for  an  in- 
jury to  an  employee  engaged  in  interstate 
commerce,  arising  from  the  negligence  of 
a  coemployee,  and  modify  the  rule  of 
contributory  negligence,  is  not  affected 
because  such  statute  also  covers  subjects 
dealt  with  by  the  Safety  Appliance  Act 
of  March  2,  1893  (27  Stat,  at  L.  531, 
chap.  196,  U.  S.  Comp.  Stat.  1901,  p. 
3174),  such  as  acts  of  negligence  of  rail- 
way companies  in  respect  of  their  cars, 
roadbed,  machinery,  etc.  Missouri  Pac. 
R.  Co.  V.  Castle,  224  U.  S.  541,  56  L.  Ed. 
875,    32    S.    Ct.    606. 

423-35b.  Power  of  congress  to  super- 
sede state  law. — Second  Employers'  Lia- 
bility Cases,  223  U.  S.  1,  56  L.  Ed.  327,  32 
S.    Ct.   169. 

423-36.  Sale  of  goods — In  general. — 
See,  generally,  ante,  "When  Protection 
Ceases,"  I,  A,  4,  b;  "Intoxicating  Liquors," 
II,  A,  2,  d,   (17). 

Forbidding  sale  except  in  original  pack- 
ages.— Tlie  use  of  the  words  "original 
packages"  in  Laws  Kan.  1907,  c.  250,  mak- 
ing it  unlawful  to  sell,  offer  for  sale,  or 
deliver  black  powder  for  use  in  any  coal 
mines  in  the  state  except  in  original 
sealed  packages  containing_  12^^  pounds 
of  powder,  does  not  necessitate  the  con- 
clusion  that  the   statute  prohibits   the   im- 


portation of  black  powder  from  other 
states  in  other  than  12^-pound  pack- 
ages. Williams  v.  Walsh,  222  U.  S.  415, 
56  L.  Ed.  253,  32  S.  Ct.  137,  affirming  or- 
der (1908),  Ex  parte  Williams,  98  P.  777, 
79   Kan.   212. 

424-43.  Transmission  and  delivery  of 
messages — Messages  to  be  delivered  in 
other  states — Failure  to  promptly  trans- 
mit within  the  state. — A  state  statute  un- 
der which  a  penalty  is  incurred  by  a  tele- 
graph company  which  negligently  fails 
to  transmit  within  the  state  (i.  e.  the  de- 
lay occurring  within  the  state)  as 
promptly  as  practicable  a  message  re- 
ceived at  an  office  in  the  state,  for  trans- 
mission to  a  person  in  another  state,  is  a 
valid  exercise  of  the  power  of  the  state, 
in  the  absence  of  any  legislation  by  con- 
gress on  the  subject.  Western  Union 
Tel.  Co.  V.  Crovo,  220  U.  S.  364,  55  L.  Ed. 
498,  31   S.   Ct.  399. 

The  requirement  of  the  Virginia  stat- 
ute as  here  applied  is  a  valid  exercise  of 
the  power  of  the  state,  in  the  absence  of 
legislation  by  congress.  It  is  neither  a 
regulation  of,  nor  a  hindrance  to,  inter- 
state commerce,  but  is  in  aid  of  that  com- 
merce. This  case  is  clearly  governed  by 
Western  Union  Tel.  Co.  v.  James,  162  U. 
S.  650,  40  L.  Ed.  1105,  16  S.  Ct.  934;  and 
Western  Union  Tel.  Co.  v.  Commercial 
Milling  Co.,  218  U.  S.  406,  416,  54  L  Ed. 
1088,  31  S.  Ct.  59,  both  above  cited.  West- 
ern Union  Tel.  Co.  v.  Crovo,  220  U.  S. 
364,   55   L.    Ed.   498,   31    S.   Ct.   399. 

The  imposition  of  a  penalty  for  the  pur- 
pose of  enforcing  the  statute  was  plainly 
within  the  legislative  power  of  the  state, 
if  the  act  was  otherwise  valid.  Western 
Union  Tel.  Co.  v.  Crovo,  220  U.  S.  364, 
55  L.  Ed.  498,  31  S.  Ct.  399;  Ling  Su  Fan 
V.  United  States,  218  U.  S.  302,  306.  54 
L.    Ed.    1049,   31    S.    Ct.   21. 

Forbidding  stipulations  limiting  liability 
for  failure  to  deliver. — Interstate  com- 
merce is  not  unconstitutionally  regulated 
by  a  state  statute  under  wliich,  as  con- 
strued   by    the    state    courts,    a    telegraph 


740" 


Vol.  VII. 


INTERSTATE,  ETC.,  COMMERCE. 


433 


(e)  Taxation. — See  post,  ante,  "Taxation  and  Licenses,"'  II,  A,  2,  d,  (12),  (i), 
et  seq. ;  "State  Taxation,"  III,  et  seq. 

(f)  Charge  for  Poles  Placed  in  Streets. — See  ante.  Constitutional  Law,  p. 
264;    post.  Licenses;    Police  Power;    Telegraphs  and  Telephones. 

(g)  Fees  to  Defray  Expense  of  Local  Inspection  and  Supervision. — See  ante, 
Constitutional  Law,  p.  264;  Licenses;  Police  Power;  Telegraphs  and  Tel- 
ephones. 

(29)  State  Pure  Food  Laws. — It  is  within  the  power  of  a  state — assuming 
that  there  is  no  conflict  with  federal  legislation — in  the  exercise  of  its  police 
power,  to  require  the  disclosure  of  the  ingredients  contained  in  the  foreign  made 
feeding  stuffs  offered  for  sale  in  the  state,  and  to  provide  for  their  inspection 
and  analysis.  Thus  the  power  to  prevent  fraud  and  deception  in  the  sale  of  pre- 
pared foods  for  live  stock  is  clearly  within  the  police  power  of  the  state,  even 
though  they  are  in  the  original  packages  as  imported  from  another  state ;  and  in 
the  absence  of  conflicting  legislation  by  congress,  the  state  may  enact  a  law  pro- 
viding for  the  inspection  of  such  commodities  sold  within  the  state  and  compel 
the  payment  of  a  sufficient  fee  to  cover  the  cost  of  inspection  and  stamps  re- 
quired by  the  act.^^'^  And  such  an  act  is  not  rendered  unconstitutional  as  an 
interference  v/ith  interstate  commerce,  and  as  depriving  the  manufacturers  of 
such  products  of  their  property  without  due  process  of  law  because  of  a  further 
provision  as  to  labels  upon  each  package  showing  a  statement  of  the  ingredients 
and  the  minimum  percentage  of  crude  fat  and  crude  protein  and  of  the  maxi- 
mum percentage  of  crude  fiber,  but  which  are  not  required  to  disclose  the  man- 
ufacturers'  secret  processes,   formulas,  nor  manner  of  combination.^^^ 


company  can  not  limit  its  liability  for  its 
negligent  failure  to  deliver  a  telegram  ad- 
dressed to  a  person  in  another  state.  Such 
a  statute  is  a  valid  exercise  of  the  police 
power  enacted  in  aid  of  interstate  com- 
merce and  does  not  burden  it.  Western 
Union  Tel.  Co.  v.  Commercial  Milling 
Co.,  218  U.  S.  406,  54  L.  Ed.  1088,  31  S. 
Ct.    .59. 

4.33-81a.  State  pure  food  laws— Power 
to  enact,  in  general. — Savage  v.  Jones,  225 
U.  S.  501,  528,  56  L.  Ed.  1182,  32  S.  Ct. 
715,  followed  in  Standard  Stock  Food  Co. 
7'.  Wright,  225  U.  S.  540,  56  L.  Ed.  1197, 
32  S.  Ct.  784. 

433-81b.  Same — Provision  as  to  labels 
showing  ingredients. — Savage  v.  Jones, 
225  U.  S.  501.  56  L.  Ed.  1182,  32  S.  Ct.  715, 
followed  in  Standard  Stock  Food  Co.  v. 
Wright,  225  U.  S.  540,  56  L.  Ed.  1197,  32 
S.    Ct.    784. 

Indiana  statute  considered. — The  pro- 
hibition against  sales  by  importing  pur- 
chasers of  concentrated  commercial  feed- 
ing stuffs  in  the  original  packages,  which 
is  made  in  Ind.  Acts  1907.  chap.  206,  un- 
less there  be  compliance  with  its  require- 
ments as  to  inspection  and  analysis,  and 
the  disclosure  of  the  ingredients,  includ- 
ing the  minimum  percentage  of  crude  fat 
and  crude  protein,  and  the  maximum  per- 
centage of  crude  fiber,  and  its  incidental 
provisions  for  the  filing  of  a  certificate, 
tor  registration,  and  for  labels  and  stamps, 
is  a  proper  exercise  of  the  pol'cc  power 
of  the  state,  and  not  an  unconstitutional 
regulation    of    interstate    commerce.    Sav- 


age V.  Jones,  225  U.  S.  501,  56  L.  Ed.  11S2, 
32    S.    Ct.   715. 

It  can  not  be  doubted  that,  within  the 
principle  of  these  decisions,  and  of  the 
others  above  cited,  the  state  of  Indiana, 
assuming  for  the  present  that  there  was 
no  conflict  with  federal  legislation,  was 
entitled,  in  the  exercise  of  its  police 
power,  to  require  the  disclosure  of  the 
ingredients  contained  in  the  feeding 
stuffs  offered  for  sale  in  the  state,  and  to 
provide  for  their  inspection  and  analysis. 
The  provisions  for  the  filing  of  a  certifi- 
cate, for  registration  and  for  labels,  were 
merely  incidental  to  these  requirements, 
and  were  appropriate  means  for  accom- 
plishing the  legitimate  purpose  of  the  act. 
Savage  v.  Jones,  225  U.  S.  501,  56  L.  Ed. 
1182,    1193,    32    S.    Ct.    715. 

An  inspection  charge  of  80  cents  per 
hundred  for  stamps  to  be  affixed  to  pack- 
ages of  concentrated  commercial  feeding 
stuffs,  made  by  Ind.  Laws  1907,  chap. 
206,  is  not  on  its  face  so  unreasonably  in 
excess  of  the  cost  of  analysis,  salaries  of 
officials,  and  other  necessary  expenses,  as 
to  invalidate  the  statute,  when  applied  to 
sales  by  importers  in  the  original  pack- 
ages. Savage  i\  Jones.  225  U.  S.  501,  56 
L.  Ed.  1182.  32  S.  Ct.  715. 

Same — Conflict  with  federal  food  and 
drugs  act. — The  question  remains  whether 
the  statute  of  Indiana  is  in  conflict  with 
the  act  of  congress  known  as  the  Food 
and  Drugs  Acts  of  June  30,  1906.  For  the 
former,  so  far  as  affects  interstate  com- 
merce   even    indirectly     and      incidentally, 


741 


433 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


(30)  Natural  Gas. — See  ante,  "Prohibiting  or  Impeding  Exportation,"  II,  A, 
2,  d,  (8),  (b).    And  see  post,  PoucE  PowKR. 

(31)  Diverting  U  aters  of  Stream  into  Another  State. — See  ante,  "Prohibit- 
ing or  Impeding  Exportation,''  II,  A,  2,  d,  (8),  (b).  And  see  post,  PoucE 
Power. 


can  have  no  validity  if  repugnant  to  the 
federal  regulation.  Savage  v.  Jones,  225 
U.  S.  501,  56  L.  Ed.  1182,  1193,  33  S.  Ct. 
715;  Reid  v.  Colorado,  187  U.  S.  137,  147, 
47   L.    Ed.   108,   23    S.    Ct.   92. 

The  object  of  the  Food  and  Drugs  Act 
is  to  prevent  adulteration  and  misbrand- 
ing, as  therein  defined.  It  prohibits  the 
introduction  into  any  state  from  any 
other  state  "of  any  article  of  food  or 
drugs  which  is  adulterated  or  misbranded, 
w^ithin  the  meaning  of  this  act."  The  pur- 
pose is  to  keep  such  articles  "out  of  the 
channels  of  interstate  commerce,  or,  if 
they  enter  such  coinmerce,  to  condemn 
them  while  being  transported  or  when 
they  have  reached  their  destinations,  pro- 
vided they  remain  unloaded,  unsold,  or 
in  original  unbroken  packages."  Savage 
V.  Jones,  225  U.  S.  501,  56  L.  Ed.  1182,  32 
S.  Ct.  715;  Hinolite  Egg  Co.  v.  United 
States,  220  U.  S.  45,  54.  55  L.  Ed.  364,  31 
S.   Ct.  364. 

Applying  these  established  principles  to 
the  present  case,  no  ground  appears  for 
denying  validity  to  the  statute  of  In- 
diana. That  state  has  determined  that  it 
is  necessary,  in  order  to  secure  proper 
protection  from  deception,  that  purchasers 
of  the  described  feeding  stuffs  should  be 
suitably  informed  of  what  they  are 
Ijuying,  and  has  made  reasonalile  pro- 
visions for  disclosure  of  ingredients  by 
certificate  and  label,  and  for  inspection 
and  analj^sis.  The  requirements  of  which 
the  bill  seeks  to  enjoin,  are  not  in  any 
way  in  conflict  with  the  provisions  of  the 
federal  act.  They  may  be  sustained  with- 
out impairing  in  the  slightest  degree  its 
operation  and  effect.  There  is  no  question 
here  of  conflicting  standards,  or  of  op- 
position of  state  to  federal  authority. 
Savage  v.  Jones,  225  U.  S.  501,  56  L.  Ed. 
1182,"  32  S.  Ct.  715.  See,  also,  ante, 
"Where  Congress  Has  Not  Occupied  the 
Full  Sphere  of  Its  Jurisdiction,"  II,  A,  2, 
b,  (3);  post,  "Pure  Food  and  Drugs 
Act,"  V. 

Iowa  pure  food  law  considered. — The 
Standard  Stock  Food  Company,  a  Ne- 
braska corporation,  brought  this  suit 
against  the  state  food  and  dairy  cominis- 
sioner  of  Iowa  to  restrain  the  enforce- 
ment of  a  statute  of  Iowa,  effective  July 
4,  1907  (Code  of  Iowa,  Supplement  1907, 
§§  5077-a6 — 5077-a24),  relating  to  the  sale 
within  the  state  of  "conceu-trated  com- 
mercial feeding  stuffs,"  upon  the  ground 
that  it  was  repugnant  to  the  interstate 
commerce  clause  (§  8,  art.  1),  and  to  the 
fourteenth  amendment  of  the  constitution 


of  the  United  States.  The  appellant  chal- 
lenges the  constitutional  validity  of  the 
statute  in  these  two  particulars:  (l) 
The  requirement  that  the  name  and  per- 
centage of  the  diluent  or  diluents  or 
bases  shall  be  stated,  and  (2)  the  exaction 
of  the  fee  of  $100.  The  case  in  its  essen- 
tial features  is  not  to  be  distinguished 
from  that  of  Savage  v.  Jones,  225  U.  S. 
501,  56  L.  Ed.  1182,  32  S.  Ct.  715,  and 
nothing  need  be  added  to  what  was  there 
said,  it  was  competent  for  the  state,  in 
the  exercise  of  its  power  to  prevent  im- 
position upon  the  public,  to  require  the 
disclosure  to  which  objection  is  made. 
The  provision  was  not  an  unreasonable 
one  and  the  effect  upon  interstate  com- 
merce was  incidental  only.  Standard 
Stock  Food  Co.  v.  Wright,  225  U.  S.  540, 
56  L.  Ed.  1197,  32  S.  Ct.  784;  Plumley  v. 
Massachusetts,  155  U.  S.  461,  39  L.  Ed. 
223,  15  S.  Ct.  154;  Hennington  v.  Geor- 
gia, 163  U.  S.  299,  317,  41  L.  Ed.  166,  16 
S.  Ct.  ]086;  Missouri,  etc..  R.  Co.  v. 
Haber,  169  U.  S.  613,  42  L.  Ed.  878,  18 
S.  Ct.  488;  Patapsco  Guano  Co.  v.  North 
Carolina  Board,  171  U.  S.  345,  361,  43  L. 
Ed.   191,   18  _S.   Ct.   862. 

The  requirement  that  the  name  and 
percentage  of  the  diluent  or  diluents  or 
Ijascs  shall  be  stated  in  the  labels,  which 
is  made  by  Iowa  Code  (Supp.  1907, 
§§  5077-aG— 5077-a24),  relating  to  the  sale 
within  tlic  state  of  concentrated  commer- 
cial feeding  stuffs,  is  a  proper  exercise  of 
the  police  pov.'cr  of  the  state,  and  does 
not,  as  applied  to  sales  by  importers  in 
the  original  packages,  amount  to  an  un- 
constitutional regulation  of  interstate 
commerce.  Standard  Stock  Food  Co.  v. 
Wright,  225  U.  S.  540,  56  L.  Ed.  1197,  32 
S.    Ct.    784. 

The  imposition  by  Iowa  Code  (Supp. 
1907,  §§  5077-a6— 5077-a24),  governing 
the  inspection  and  analysis  of  concen- 
trated cominercial  feeding  stuffs,  of  an 
inspection  fee  of  10  cents  per  ton  on  such 
products  when  sold  or  offered  for  sale 
within  the  state,  or  the  exaction,  in  lieu 
thereof,  in  the  case  of  "condimental, 
patented,  proprietary,  or  trademark  stock 
or  poultry  foods,"  of  an  annual  license 
fee  of  $100,  does  not  render  the  statute 
invalid  as  applied  to  sales  by  importers 
in  the  original  packages.  Standard  Stock 
Food  Co.  V.  Wright,  225  U.  S.  540,  56  L. 
Ed.   1197,   32    S.    Ct.   784. 

The  statute  (Code  of  Iowa,  Supp.  1907, 
§§  5077-a6 — 5077-a24)  must  be  considered 
as  an  inspection  law  which  it  was  within 
the  power  of  the  state  to  enact,  and  that 


(42 


Vol.  VII. 


INTERSTATE,  ETC.,  COMMERCE. 


433 


iZ2)  Lazes  for  Enforcement  of  Debts;  Interference  through  Judicial  Process. 
— ^The  laws  of  the  states  for  the  enforcement  of  debts  and  the  federal  laws 
which  permit  or  enjoin  continuity  of  transportation  are  not  so  far  incompatible 
that  the  provisions  of  the  latter  must  be  construed  as  displacing  the  former.si'^ 

Attachment  and  Garnishment  Laws. — "It  is  very  certain  that  when  con- 
gress enacted  the  interstate  commerce  law  it  did  not  intend  to  abrogate  the  at- 
tachment laws  of  the  states.  It  is  also  certain  that  there  is  no  conscious  purpose 
in  the  laws  of  the  states  to  regulate,  directly  or  indirectly,  interstate  commerce. 
We  may  put  out  of  the  case,  therefore,  as  an  element  an  attempt  of  the  state  to 
exercise  control  over  interstate  commerce  in  excess  of  its  power."^!"^ 

(33)  Brokerage  and  Commission  Business;  Dealing  in  Futures,  etc. — See 
ante,  "Contracts  Incidentally  Affecting  Commerce ;  Brokerage  and  Commission 
Contracts,"  I,  A,  3,  1. 

(34)  Disorderly  Houses. — As  to  harboring  an  alien  woman  for  immoral  pur- 
poses, see  ante,  "Immigration,"  II,  A,  1,  b,  (3),  (b),  jj. 

e.  Remedy  against  Illegal  State  Interference. — An  injunction  will  lie  against 
state  officers  attempting  to  enforce  state  legislation  which  is  unconstitutional  as 
an  unwarranted  interference  with  interstate  commerce.     Such  legislation  being 


its  fair  import  is  that  the  fees  exacted  by 
§  5,  are  for  the  purpose  of  meeting-  the 
expenses  of  inspection.  The  bill  alleges 
no  facts  warranting  the  conclusion  that 
the  charge  is  unreasonable  as  compared 
with  this  expense.  Standard  Stock  Food 
Co.  V.  Wright,  225  U.  S.  540,  56  L.  Ed. 
1197,  32  S.  Ct.  784;  Patapsco  Guano  Co. 
V.  North  Carolina  Board,  171  U.  S.  345, 
361,  43  L.  Ed.  191,  18  S.  Ct.  862;  McLean 
&  Co.  V.  Denver,  etc..  R.  Co.,  203  U.  S. 
38,  50,  51  L.  Ed.  78,  27  S.  Ct.  1;  Red  "C" 
Oil  Mfg.  Co.  V.  Board,  222  U.  S.  380,  393, 
56  L.  Ed.  240,  32  S.  Ct.  152;  Savage  v. 
Jones,  225  U.  S.  501,  56  L.  Ed.  1182,  32 
S.    Ct.   715. 

Same — Conflict  with  federal  Food  and 
Drugs  Act. — There  is  no  conflict  between 
the  provisions  of  the  Food  and  Drugs  Act 
of  June  30.  1906  (34  Stat,  at  L.  768,  chap. 
3915.  U.  S.  Comp.  Stat.  Supp.  1911.  p. 
1354),  for  the  prevention  of  the  adultera- 
tion and  misbranding  of  foods  and  drugs 
when  the  subject  of  interstate  commerce, 
and  the  requirement  of  Towa  Code  (Supp. 
1907,  §§  5077-a6— 5077-a24),  a.s  applied  to 
sales  by  importers  in  the  original  pack- 
ages, that  there  shall  be  stated  in  the 
labels  on  concentrated  commercial  feed- 
ing stuffs  offered  for  sale  in  the  state  the 
name  and  percentage  of  the  diluent  or 
diluents  or  bases.  Standard  Stock  Food 
Co.  V.  Wright.  225  U.  S.  540.  56  L.  Ed. 
1197,    32    S.    Ct.    784. 

433-81C.  Laws  for  enforcement  of  debts 
— Interference  through  judicial  process. — 
Davis  c'.  Cleveland,  etc.,  St.  R.  Co,  217 
U.   S.   157.   54   L.   Ed.   708,   30   S.    Ct.   463. 

433-81d.  Attachment  and  garnishment 
acts. — Davis  v.  Cleveland,  etc.,  St.  R.  Co., 
217  U.  S.  157,  177,  54  L.  Ed.  70S,  30  S. 
Ct.   463. 

Cars  of  foreign  railway  company  sub- 
ject to  attachment. — Cars  owned  by  a 
foreign  railway  company,  which  have  tem- 


porarily come  into  the  state  in  the  course 
of  interstate  transportation,  through  the 
agency  of  other  carriers,  are  subject  to 
attachment  under  the  state  laws,  despite 
ihe  provisions  of  the  interstate  commerce 
act  and  of  Rev.  St.,  §  5258  (U.  S.  Comp. 
St.  1901,  p.  3564),  securing  continuity  of 
transportation.  Davis  v.  Cleveland,  etc., 
St.  R.  Co.,  217  U.  S.  157,  54  L.  Ed.  708,  30 
S.  Ct.  463. 

"The  interference  with  interstate  com- 
merce by  the  enforcement  of  the  attach- 
ment laws  of  a  state  must  not  be  ex- 
aggerated. It  can  only  be  occasional  and 
•  temporary.  The  obligations  of  a  rail- 
road company  are  tolerably  certain,  and 
provisions  for  thein  can  be  easily  made. 
Their  sudden  assertion  can  be  almost  in- 
stantly met;  at  any  rate,  after  short  de- 
lay, and  without  much,  if  any,  embarrass- 
ment to  the  continuity  of  transportation. 
However,  the  pending  case  does  not  call 
for  a  very  comprehensive  decision  on  the 
subject.  We  only  decide  that  the  cars 
situated  as  this  record  tends  to  show  that 
"'^ey  were  then  attached,  and  the  amounts 
due  from  the  garnishee  companies  to  the 
C.  C.  C.  &  St.  L.  Ry.  Co.,  were  not  ex- 
empt from  process  under  the  state  laws, 
and  that  the  court  had,  therefore,  juris- 
diction of  them,  and  through  them  of  the 
C.  C.  C.  &  St.  L.  Rv.  Co."  Davis  v.  Cleve- 
land, etc..  St.  R.  Co.,  217  U.  S.  157,  54  L. 
Ed.   708,   30  S.   Ct.  463. 

Garnishment  of  freight  balances.— 
Sums  due  to  a  foreign  railway  carrier 
from  other  carriers  as  the  forme.'-'s  share 
of  freight  on  interstate  shipments  may  be 
garnisiied  under  the  state  laws,  despite 
the  provisions  of  the  Interstate  Commerce 
.^ct  and  of  Rev.  St.,  §  5258  (U.  S.  Comp. 
St.  1901,  p.  3564),  securing  continuity  of 
transportation.  Davis  v.  Cleveland,  etc., 
St.  R.  Co.,  217  U.  S.  157,  54  L.  Ed.  708,  30 
S.   Ct.  463. 

r43 


433-436 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


invalid,  is  a  protection  to  no  one,  and  state  officials  seeking  to  enforce  it  can  not 
claim  immunity  from  suit  on  the  ground  that  the  action  is  against  the  state.si'^ 

B.  Internal  or  Intrastate  Commerce. — See,  generally,  ante,  "Interstate 
and  Foreign  Commerce  Defined,"  I,  A,  1,  b;  "Internal  or  Intrastate  Commerce," 
I,  B;  "Employers'  Liability  Acts,"  II,  A,  1,  b,  (3),  (b),  dd,  (cc>^),  eee. 

1.  Power  of  Congress — a.  In  General. — See  note  82. 

2.  Power  of  States — a.  In  General. — See  note  95. 
b.  Regulation  of  Particular  Matters. — See  note  97. 


433-81e.  Remedy  against  illegal  state 
interference. — Railroad  Comm.  v.  Worth- 
ington,  225  U.  S.  101,  56  L.  %A.  1004,  32 
S.  Ct.  653;  Savage  v.  Jones,  225  U.  S.  501, 
520,  56  L.  Ed.  1182,  32  S.  Ct.  715,  followed 
in  Standard  Stock  Food  Co.  v.  Wright, 
225  U.  S.  540,  56  L.  Ed.  1197,  32  S.  Ct. 
784;  General  Oil  Co.  v.  Crain,  209  U.  S. 
211,  52  L.  Ed.  754,  28  S.  Ct.  475.  See, 
also,  the  title  DUE  PROCESS  OF  LAW, 
vol.  5,  p.  676,  et  seq. 

Illustrations. — An  order  made  by  a 
state  commission  under  assumed  authority 
of  a  state,  which  directly  burdens  or 
regulates  interstate  commerce,  will  be  en- 
joined. Railroad  Comm.  v.  Worthington, 
225  U.  S.  101,  56  L  Ed.  1004,  32  S.  Ct. 
653,  following  McNeill  v.  Southern  R.  Co., 
202  U.  S.  543,  50  L.  Ed.  1142,  26  S.  Ct.  722. 

Foreign  manufacturers,  selling  to  im- 
porting purchasers,  are  entitled  to  in- 
junctive relief  against  state  officials  to 
prevent  the  enforcement  of  the  unlawful 
demands  of  the  state  and  to  prevent  un- 
lawful state  interference  with  the  right 
of  such  purchasers  to  sell  in  the  original 
package.  Savage  v.  Jones,  225  U.  S.  501, 
520,  56  L.  Ed.  1182,  32  S.  Ct.  715,  followed 
in  Standard  Stock  Food  Co.  v.  Wright, 
225  U.  S.  540,  56  L.  Ed.  1197,  32  S.  Ct. 
784. 

An  attack  upon  the  right  of  the  import- 
ing purchasers  to  sell  in  the  original 
packages  bought  from  foreign  manufac- 
turers, not  only  would  be  to  the  prejudice 
of  such  manufacturers,  but  inevitably 
would  inflict  injury  upon  them  by  reduc- 
ing their  interstate  sales;  and  if  the  stat- 
ute, as  applied  to  sales  by  importing  pur- 
chasers in  the  original  packages,  con- 
stitutes an  unwarrantable  interference 
with  interstate  commerce  in  the  products 
of  such  foreign  manufacturers,  they  have 
a  standing  to  complain,  and  are  entitled 
to  injunctive  relief  against  enforcement 
by  the  defendant  state  officers  of  the  il- 
legal demands.  Savage  v.  Jones,  225  U. 
S.  501,  520,  56  L.  Ed.  1182,  32  S.  Ct.  715, 
followed  in  Standard  Stock  Food  Co.  v. 
Wright,  225  U.  S.  540,  56  L  Ed.  1197,  32 
S.  Ct.  784.  See  also,  Scott  v.  Donald,  165 
U.  S.  107,  112,  41  L.  Ed.  648;  Ex  parte 
Young.  209  U.  S.  123,  160,  52  L.  Ed.  714, 
28  S.  Ct.  441;  Ludwig  v.  Western  Union 
Tel.  Co.,  216  U.  S.  146,  54  L.  Ed.  423,  30 
S.  Ct.  280;  Hopkins  v.  Clemson  Agricul- 
tural College.  221  U.  S.  636,  645,  55  L.  Ed. 
890,    31    S.    Ct.    654;    Philadelphia     Co.      v. 


Stimson,  223  U.  S.  605,  621,  56  L.  Ed.  570, 
32   S.   Ct.   340. 

A  decision  of  a  state  court  dismissing, 
on  the  ground  that  the  suit  was  one 
against  the  state,  and  therefore  not  within 
its  jurisdiction,  a  bill  which  seeks  to  en- 
join a  state  oil  inspector  from  enforcing 
a  state  inspection  law,  on  the  theory  that 
such  law,  if  applied  to  the  oils  in  con- 
troversy, violates  the  commerce  clause  of 
the  federal  constitution,  gives  effect  to 
such  law,  and  is  reviewable  by  the  su- 
preme court  of  the  United  States.  Gen- 
eral Oil  Co.  V.  Crain,  209  U.  S.  211,  53  L. 
Ed.   754.  28   S.   Ct.  475. 

433-82.  Power  of  congress  as  to  in- 
trastate commerce. — The  federal  power  of 
regulation  within  the  states  is  limited  to 
the  right  of  congress  to  control  transac- 
tions of  interstate  commerce;  it  has  no 
authority  to  regulate  commerce  wholly  of 
a  domestic  character.  El  Paso,  etc.,  R. 
Co.  V.  Gutierrez,  215  U.  S.  87,  54  L.  Ed. 
106,   30   S.   Ct.  21. 

Same — As  to  fisheries — Exclusion  of 
sponges. — As  to  the  power  of  congress 
with  respect  to  fisheries  in  state  terri- 
torial waters,  and  particularly  the  power 
to  exclude  sponges  taken  within  state 
territorial  limits,  see  ante,  "Exclusion  of 
Imports — Establishment  of  Standards," 
II,  A,  1,  b,  (3),  (b),  hh. 

Same — Employers'  liability  acts. — As 
to  employers'  liability  acts,  see  ante,  "Em- 
ployers' Liability  Acts."  II,  A,  1,  b,  (3), 
(b),  dd,  (cc  i/<),  eee;  post,  "Commerce  in 
Territories  and  Places  under  Exclusive 
Federal  Control,"  II,  D. 

436-95.  Terms  and  conditions  upon 
which  commerce  carried  on. — It  may  be 
stated  as  a  general  rule  that  an  act  vvhich 
puts  in  one  class  all  engaged  in  business 
of  a  special  and  public  character,  requires 
of  them  the  performance  of  a  dutj^  which 
they  can  do  better  and  more  quickly  than 
others,  and  imposes  a  not  exorbitant  pen- 
alty for  a  failure  to  perform  that  duty 
within  a  reasonable  time,  can  not  be  ad- 
judged unconstitutional  as  a  purely  arlM- 
trary  classification.  Seaboard  Air  Line 
Railway  v.  Seegers,  207  U.  S.  73,  52  L 
Ed.   108,  28   S.   Ct.  28. 

436-97.  Regulation  of  particular  matters 
— Enforcing  prompt  payment  of  claims. 
— Common  carriers  are  not  denied  the 
equal  protection  guaranteed  by  Const.  U. 
S.  Amend.  14,  by  the  provisions  of  Act  S. 
C.  Feb.  23,  1903,  p.  81,  §  2,  requiring  them 


744 


Vol.  VII.  I  XT  ERST  ATE,  ETC.,  COMMERCE.  437 

C.  Commerce  with  Indian  Tribes — 1.  Power  of  Congress — b.  Nature 
and  Extent  of  Pozcer — (1)  In  General. — Congress  has  power  to  regulate  com- 
merce with  the  Indian  tribes,  and  such  power  is  superior  and  paramount  to  the 
authority  of  any  state  within  whose  limits  are  Indian  tribes. ^^  It  has  been  held, 
however,  that  where  fundamental  principles  of  the  constitution  are  of  equal  dig- 
nity, neither  must  be  so  enforced  as  to  nullify  or  substantially  impair  the  other,**'' 
Therefore,  in  regulating  commerce  with  Indian  tribes  congress  must  have  regard 
to  the  general  authority  which  the  state  has  over  all  persons  and  things  within  its 
jurisdiction.  On  the  other  hand,  the  authority  of  the  state  can  not  be  so  exerted 
as  to  impair  the  power  of  congress  to  regulate  commerce  with  the  Indian  tribes.^"^ 

Reservations  and  Regulations  in  Acts  Creating  New  States.— It  may 
well  happen  that  congress  should  embrace  in  an  enactment  introducing  a  new 
state  into  the  Union  legislation  intended  as  a  regulation  of  commerce  among  the 
states,  or  with  Indian  tribes  situated  within  the  limits  of  such  new  state,  or  reg- 
ulations touching  the  sole  care  and  disposition  of  the  public  lands  or  reservations 
therein,  which  might  be  upheld  as  legislation  within  the  sphere  of  the  plain  power 
of  congress.  But  in  every  such  case  such  legislation  would  derive  its  force  not 
from  an  agreement  or  compact  with  the  proposed  new  state,  nor  by  reason  of  its 
acceptance  of  such  enactment  as  a  term  of  admission,  but  solely  because  the 
power  of  congress  extended  to  the  subject,  and  therefore  would  not  operate  to 
restrict  the  state's  legislative  power  in  respect  of  any  matter  which  was  not  plainly 
within  the  regulating  power  of  congress.^*^  And  it  is  as  clearly  consistent  with 
the  constitution  to  maintain  in  force  an  existing  act  of  congress  relating  to  such 
traffic  and  intercourse,  so  that  it  shall  continue  effective  within  the  limits  of  the 
new  state,  as  it  is  to  reserve  the  right  to  enact  new  laws  in  the  future  upon  the 
same  subject  matter. ^'^ 

Same — Equality  of  the  States  upon  Admissions. — See  ante.  Constitu- 
tional Law,  p.  264. 

(2)  Particular  Regulations — (a)  Liquor  Traffic. — The  power  of  congress  to 
regulate  commerce  between  the  states,  and  with  Indian  tribes  situate  within  the 

to  adjust  and  pay  every  claim  for  loss  or  thoritj-  of  congress  to  legislate  in  the  fu- 

damage   to   an  intrastate   shipment   within  ture  respecting  the  Indians  residing  within 

40  days  after  the  filing  of  a  claim,   under  the  new  state,  is  w'ithin  the  constitutional 

penalty  of  $50  for  each  failure  or  refusal,  power  of  congress  to  regulate  commerce 

where  there  can  be  no  award  of  a  penalty  with   the   Indian  tribes.     Ex  parte  Webb, 

under  the  statute  unless  there  is  a  recov-  225  U.  S.  663,  56  L.  Ed.  1248,  32  S.  Ct.  769. 

ery  of  the  full  amount  claimed.   Judgment,  "The    reservation    of    the    authority    of 

Seegers    Bros.   v.   Seaboard  Air   Line    Ry.  congress  to  legislate  in  the  future  respect- 

(1905),  52  S.  E.  T97,  73  S.  C.  71,  affirmed.  ing  the   Indians   residing  within   the   new 

Seaboard    Air    Line    Railway    z'.    Seegers,  state  is  clearly  supportable  under  the  fed- 

207  U.  S.  73,  52  L.  Ed.  108,  28  S.  Ct.  28.  eral   constitution,   art.   1,   §   8,   which   con- 
437-8a.    Commerce  with  Indian  tribes —  fers  upon  congress  the  power  'to  regulate 

Power    of    congress     paramount     to     au-  commerce     with     foreign     nations,      and 

thority   of   state. — Dick    z.    United    States,  among    the    several    states,    and    wnth    the 

208  U.  S.  340,  353,  52  L.  Ed.  520,  28  S.  Ct.  Indian    tribes.'      It   has     been      repeatedly 
399.  held  by  this  court  that  under  this  clause 

437-8b.  But  fundamental  principles  not  traflic  or  intercourse  with  an  Indian  tribe 
to  impair  each  other. — Dick  z\  United  or  with  a  member  of  such  a  tribe  is  sub- 
States.  208  U.  S.  340,  353,  52  L.  Ed.  520,  ject  to  the  regulation  of  congress,  al- 
28  S.  Ct.  399.  though  it  be  within  the  limits  of  a  state. 

437-8C.  Same — States  and  congress  each  United    States    v.    Holliday,    3    Wall.    407, 

to  regard  the  just  powers  of  the  other.—  418,    18    L.    Ed.    182;    United    States   v.   43 

Dick  V    United  States.  208  U.   S.  340,  353,  Gallons  of  Whiskey,  93  U.  S.  188,  197,  23 

52   L.   Ed.   520,   28    S.   Ct.   399.  L.  Ed.  846;  Dick  r.  United  States.  208  U. 

437-8d.    Reservations  and  regulations  in  S.   340,  52  L.   Ed.  520,  28   S.   Ct.  399.   and 

acts  creating  new  states. — Ex  parte  Webb,  cases   cited."     Ex  parte  Webb,  225  U.   S. 

2''5    U     S     6G3,    56    L.    Ed.    1218,    32    S.    Ct.  663,  56  L.  Ed.   1248,  32  S.  Ct.  769. 

769-    quoting,    Coyle   v.    Smith,    221    U.    S.  437-8e.    Congress  may  contmue  existmg 

559.'  55   L.    Ed.   853,   31    S.   Ct.   688.  act   in   force.— Ex   parte    Webl>,    225   U.    S. 

The    reservation   in    the    Oklahoma    En-  663,   56   L.   Ed.   1248,  32   S.   Ct.   769. 
abling  Act  of  June  16,  1906,  §  1,  of  the  au- 

745 


438 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


limits  of  a  state,  justifies  congress  when  creating  a  new  state  out  of  territory  in- 
habited by  Indian  tribes,  and  into  which  territory  the  introduction  of  intoxicating 
liquors  is  by  existing  laws  and  treaties  prohibited,  in  so  legislating  as  to  preserve 
those  laws  and  treaties  in  force  to  the  extent  of  excluding  interstate  traffic  in  in- 
toxicating liquors  that  would  be  inconsistent  with  the  prohibition. ^^^  And  even 
where  such  stipulations  are  not  embodied  in  an  enabling  act,  such  act  is  to  be  read 
in  the  light  of  the  continuing  power  of  congress  to  enact  regulations  for  the  con- 
trol of  commerce  with  the  Indian  tribes  within  such  state  at  any  time  subsequent 
to  its  admission,  and  such  power  may  be  so  exercised  as  to  exclude  intoxicants 
not  only  to  those  lands  still  retained  by  the  Indian  tribes,  but  also  to  those  ceded 
to  the  United  States  and  to  those  allotted  to  them  in  severalty. ^^^ 


438-15a.  Liquor  traffic — Preserving  ex- 
isting laws  and  treaties  upon  admission  of 
territory   inhabited    by     Indian      tribes. — 

Dick  V.  United  States,  208  U.  S.  340,  353. 
52  L.  Ed.  520,  28  S.  Ct.  399;  Ex  parte 
Webb,  225  U.  S.  663,  56  L.  Ed.  1248,  32  S. 
Ct.   769. 

Same — Reservation  in  Oklahoma  En- 
abling Act. — The  scope  of  any  repeal  of 
the  prohibitions  of  the  Act  of  March  1, 
§  1895  (28  Stat,  at  L.  693,  chap.  145),  §  8. 
against  the  manufacture  and  sale  of  in- 
to.xicating  liquors  in  the  Indian  territory, 
or  the  bringing  of  such  liquors  into  such 
territory,  effected  by  implication  from  the 
provisions  of  the  Oklahoma  Enabling  .\ct 
of  June  16,  1906,  which,  in  addition  to  a 
requirement  that  the  state  constitution 
shall  prohibit  the  manufacture  and  sale 
of  intoxicating  liquors  in  that  part  of  the 
proposed  state  known  as  the  Indian  ter- 
ritory, and  their  shipments  from  other 
parts  of  the  state  into  such  protected  ter- 
ritory, with  a  proviso  for  the  establish- 
ment of  state  agencies  for  the  sale  of 
liquors  for  certain  limited  purposes  speci- 
fied, contains  a  reservation  to  the  govern- 
ment of  the  United  States  of  authority  to 
make  laws  and  regulations  in  the  future 
respecting  the  Indians,  and  declares  that 
the  laws  of  the  United  States  not  locally 
inapplicable  shall  have  the  same  force' 
and  effect  within  the  state  as  elsewhere 
within  the  United  States,  must  be  limited 
to  the  extent  that  the  two  acts  cover  the 
same  field,  thus  leaving  in  full  force  so 
much  of  the  prohibitions  of  the  earlier  act 
as  relates  to  the  carriage  of  such  liquors 
from  without  the  state  of  Oklahoma  into 
that  part  of  it  which  was  the  Indian  ter- 
ritory, except  liquors  brought  in  by  the 
state  for  the  use  of  the  state  agencies. 
Ex  parte  Webb,  225  U.  S.  663,  56  L.  Ed. 
1248,    32    S.    Ct.   769. 

"This  being  so,  and  since  we  find  in 
the  Oklahoma  Enabling  Act  no  repeal, 
express  or  implied,  of  the  Act  of  1895  so 
far  as  pertains  to  the  carrying  of  liquor 
from  without  the  new  state  into  that  part 
of  it  which  was  the  Indian  territory 
(saving  as  to  liquor  brought  in  by  the 
state  for  the  use  of  state  agencies  estab- 
lished imder  the  provisions  of  the  en- 
abling act),  it  follows,  upon  the  admitted 


facts,  that  the  United  States  district  court 
has  jurisdiction  to  punish  the  petitioner 
for  the  ofifense  that  he  has  committed.'' 
Ex  parte. Webb,  225  U.  S.  663,  56  L.  Ed. 
1248,   32    S.    Ct.   769. 

438-15b.  Same — Power  of  congress  sub- 
sequent to  admission  of  state. — Dick  v. 
United  States,  208  U.  S.  340,  52  L.  Ed.  520, 
28  S.  Ct.  399.  See,  also,  ante,  INDIANS, 
p.  641;  post,  INTOXICATING  LIQ- 
UORS. 

Same — Stipulations  in  Nez  Perce  Treaty 
of  May  1,  1893 — Sovereignty  of  Idaho.— 
The  stipulation  in  the  agreement  of  May 
1,  1893,  between  the  United  States  and 
the  Nez  Perce  Indians,  that  the  federal 
laws  prohibiting  the  introduction  of  in- 
toxicating liquors  into  the  Indian  country 
shall,  for  a  period  of  twenty-five  years, 
apply  to  the  lands  thereby  ceded  to  the 
United  States  and  to  those  retained  by 
the  Indians  and  to  those  allotted  to  them 
in  severalty,  was  a  valid  regulation,  based 
upon  the  treaty-making  power  of  the 
United  States  and  upon  the  power  of  con- 
gress to  regulate  commerce  with  the  In- 
dians, and  was  not  an  invasion  of  the 
sovereignty  of  the  state  of  Idaho,  which 
had,  by  the  Act  of  1890  (26  Stat,  at  L. 
215,  chap.  656),  been  admitted  into  the 
Union  upon  an  equal  footing  with  the 
other  states.  Dick  v.  United  States,  208 
U.  S.  340,  52  L.  Ed.  520,  28  S.  Ct.  399. 
See,  also,  Clairmont  v.  United  States,  225 
U.   S.  551,  56  L.   Ed.  1201,  32   S.   Ct.  787. 

Act  of  January  30,  1897,  c.  109,  29  Stat. 
506 — Indian  allotments — Rights  of  Indian 
who  has  become  a  citizen. — Congress 
could  enact  so  much  of  Act  Jan.  30,  1897, 
c.  109,  29  Stat.  506,  as  makes  criminal  the 
introduction  of  intoxicating  liquor  upon 
an  allotment  within  the  limits  of  the  Ya- 
kima Indian  Reservation,  in  the  slate  of 
Washington,  made  and  patented  to  the 
Indian  allottee  under  Act  Feb.  8,  1887,  c. 
119,  24  Stat.  388,  by  which  the  title  is 
held  in  trust  by  the  government,  and  is 
not  alienable  by  the  allottee  without  the 
consent  of  the  United  States,  since,  under 
the  provisions  with  respect  to  Washing- 
ton of  the  Enabling  Act  of  February  22, 
1889  (25  Stat.  677.  c.  180,  §  4),  jurisdiction 
and  control  of  Indian  lands  remain  in  the 
United    States.     Judgment    (Wash.    1908), 


r46 


Vol.  MI. 


IXTERSTATE.  ETC.,  COMMERCE. 


438 


Words  "Indian  Country"  Construed. — The  Act  of  June  30,  1834,  c.  161, 
4  Stat.  729,  thus  defined  "the  Indian  country:"'  "That  all  that  part  of  the  United 
States  west  of  the  Mississippi,  and  not  within  the  states  of  Missouri  and  Louis- 
iana, or  the  territory  of  Arkansas,  and,  also,  that  part  of  the  United  States  east 
•of  the  Mississippi  River,  and  not  within  any  state  to  which  the  Indian  title  has 
not  been  extinguished,  for  the  purposes  of  this  act,  be  taken  and  deemed  to  be  the 
Indian  country. "'^-^'^  Notwithstanding  that  portion  of  the  Act  of  1834  defining 
what  was  to  be  considered  Indian  country  was  not  re-enacted  in  the  Revised 
Statutes,  and  hence  was  repealed  by  §  5596  of  the  revision  (U.  S.  Comp.  Stat. 
1901,  p.  3750),  the  definition  therein  given  may  still  "be  referred  to  in  connection 
with  the  provisions  of  its  original  context,  which  remain  in  force,  and  may  be 
considered  in  connection  with  the  changes  which  have  taken  place  in  our  situation, 
with  a  view  of  determining  from  time  to  time  what  must  be  regarded  as  Indian 
country  where  it  is  spoken  of  in  the  statutes. "i^"^  And  as  under  the  Act  of  June 
-30,  1834,  c.  161  (4  Stat,  at  L.  729 j,  the  words  Indian  country  were  defined  to 
mean  lands  to  which  the  Indian  title  had  not  been  extinguished,  this  has  come  to 
be  the  accepted  sense  in  which  those  words  have  been  used  in  subsequent  statutes. 
In  other  words,  in  detennining  what  is  Indian  country,  the  simple  criterion  is 
that,  as  to  all  lands  thus  described,  it  is  Indian  country  whenever  the  Indian  title 
has  not  been  extinguished,  and  that  it  continues  to  be  Indian  country  so  long  as 
the  Indians  have  title  to  it,  and  no  longer.^-^"  Of  course,  this  rule  may  be  quali- 
fied by  special  provisions  in  statutes  or  treaties,  as  where  it  has  been  provided  in 
some  cases,  upon  the  cession  of  lands  by  the  Indians,  and  the  consequent  extin- 
guishment of  their  title  thereto,  that  the  ceded  lands  should  retain  for  a  specified 
period  of  time  their  original  status  as  Indian  country  so  far  as  the  introduction 
of  intoxicating  liquors  into  the  same  was  concerned. ^-^^    But  unless  there  is  some 


165  F.  253,  reversed.  United  States  f. 
Sutton,  215  U.  S.  291,  54  L.  Ed.  200,  30 
S.  Ct.  116. 

A  conviction  of  an  Indian  of  the  of- 
fense of  introducing  intoxicating  liquor 
into  the  Indian  country  and  into  an  In- 
dian allotment  while  the  title  to  the  same 
is  held  in  trust  by  the  government  may 
be  had  under  Act  Jan.  30,  1897,  c.  109.  29 
Stat.  506,  although  the  defendant  Indian 
is  a  citizen  of  the  United  States,  and  en- 
titled, under  Act  Aug.  7,  1882,  c.  434,  §  7, 
22  Stat.  342,  and  Act  Feb.  8,  1887,  c.  119, 
§  6,  24  Stat.  390,  to  the  rights,  privileges, 
and  immunities  of  such  citizens,  and  to 
the  benefit  of  the  laws,  civil  and  criminal, 
of  the  state  in  which  his  allotment  is 
situated,  and  upon  which  the  offense  is 
alleged  to  have  been  committed.  Hallo- 
well  :•.  United  States,  221  U.  S.  317,  55  L. 
Ed.  750,  31  S.  Ct.  587.  See,  also,  Dick  r. 
United  States,  208  U.  S.  340,  52  L.  Ed. 
520.   28    S.   Ct.   399. 

438-15C.  Words  "Indian  country"  con- 
strued.— Clairmont  z\  United  States.  225 
U.  S.  551,  557,  56  L.  Ed.  1201,  32  S.  Ct. 
787. 

438-15d.  Same — Construction  with  refer- 
ence to  repeal  portions  of  statute. — 
Clairmont  v.  United  States,  225  U.  S.  551, 
56  L.  Ed.  1201,  32  S.  Ct.  787;  Ex  parte 
■Crow  Dog,  109  U.  S.  556,  561,  27  L.  Ed. 
1030,  3  S.  Ct.  396;  United  States  v.  Le 
Bris,  121  U.  S.  278,  280,  30  U  Ed.  946,  7  S. 
€t.    894. 


438-15e.  Same — Extinguishment  of  In- 
dian title  the  criterion. — Clairmont  v. 
United  States,  225  U.  S.  551.  56  L.  Ed. 
1201,  32   S.   Ct.  787. 

438-15f.  Same — Special  exceptions  and 
reservations  in  some  cases. — Clairmont  t^. 
United  States,  225  U.  S.  551,  56  L.  Ed. 
1201,  32  S.  Ct.  787.  See,  also,  Dick  v. 
United  States,  208  U.  S.  340,  52  L.  Ed. 
520,    28    S.    Ct.    399. 

The  words,  ''Indian  countrj^"  as  used 
in  U.  S.  Rev.  Stat.,  §  2139,  as  amended 
and  re-enacted  by  the  Act  of  July  23,  1892, 
(27  Stat,  at  U  260.  chap.  234),  forbidding 
the  introduction  of  intoxicating  liquors 
into  such  country,  do  not,  standing  alone, 
embrace  territory  in  which,  at  the  time, 
the  Indian  title  had  been  extinguished, 
and  over  which,  with  its  inhabitants,  the 
jurisdiction  of  the  state,  for  all  purposes 
of  government,  and  full  and  complete. 
Dick  v.  United  States,  208  U.  S.  340.  52 
L.    Ed.   520,   28    S.    Ct.   399. 

That  statute,  however,  must  be  inter- 
preted in  connection  with  the  agreement 
of  1893  between  the  United  States  and  the 
Xez  Perce  Indians.  By  that  agreement, 
the  United  States  stipulated  that  the  lands 
ceded  by  the  Nez  Perce  Indians,  and 
those  retained  as  well  as  those  allotted 
to  the  Indians,  which  embraced  all  the 
lands  in  the  original  Reservation,  should 
be  subject,  for  the  limited  period  of 
twenty-five  years,  to  all  federal  laws  pro- 


747 


438-440 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


such  reservation,  the  lands,  upon  the  extinguishment  of  the  Indian  title,  cease  to 
be  Indian  country  as  above  stated,  both  as  regards  the  introduction  of  intoxicat- 
ing liquors  into  the  same  as  well  as  for  all  other  purposes. ^^° 

Offense  of  Introducing"  Intoxicating  Liquors  into  Indian  Country  Not 
Sustained  Where  Title  Shown  to  Have  Been  Extinguished. — Where  the 
offense  of  actually  introducing  intoxicating  liquors  charged  in  an  indictment  in  a 
federal  district  court  is  shown  to  have  been  committed  on  lands  within  the  state 
to  which  the  Indian  title  has  been  extinguished,  and  which  have  been  completely 
withdrawn  from  the  reservation,  the  charge  of  introducing  liquors  into  the  Indian 
country  is  disproved  and  the  jurisdiction  of  the  district  court  of  the  United  States 
must  fail.  He  could  be  found  guilty  under  such  circumstances  no  matter  what 
his  ultimate  intention  with  respect  to  such  liquor  might  have  been.!^'*^  On  the 
other  hand,  if  the  charge  laid  in  the  indictment  was  that  of  "attempting  to  intro- 
duce" intoxicating  liquors  into  the  Indian  country,  and  the  defendant  was  found 
with  liquor  in  his  possession  upon  lands  adjoining  those  included  within  "Indian 
countr}^'"  as  herein  defined,  or  upon  a  railroad  train  on  a  right  of  way  rvmning 
into  or  through  such  country,  then  the  question  of  guilt  would  be  purely  one  of 
evidence.^ '^^ 

D.  Commerce  in  Territories  and  Places  under  Exclusive  Federal  Con- 
trol.— The  power  of  congress  to  deal  with  trade  and  commerce  in  the  District 
of  Columbia  and  the  territories  does  not  depend  upon  the  authority  of  the  inter- 
state commerce  clause  of  the  constitution.-^^ 

Employers'  Liability  Acts. — Congress  had  the  power  to  enact  so  much  of 
the  Federal  Employers'  Liability  Act  of  June  11,  1906,  as  provides  that  every 
common  carrier  engaged  in  trade  or  commerce  in  any  territory  of  the  United 
States  shall  be  liable  for  the  death  or  injury  of  any  of  its  employees  w4iich  may 
result  from  the  negligence  of  any  of  its  officers,  agents,  or  employees. -^"^ 


hibiting  the  introduction  of  intoxicants 
into  the  Indian  country.  Dick  v.  United 
States,  208  U.  S.  340,  352,  52  L.  Ed.  520, 
28    S.    Ct.   399. 

It  is  within  the  power  of  congress, 
therefore  to  retain  control  for  a  reason- 
able period  for  police  purposes  of  land 
to  which  the  Indian  title  has  been  ex- 
tinguished, even  though  the  Indians  have 
become  citizens,  and  the  requireinent,  in 
ihe  agreement  of  1893,  that  the  federal 
liquor  statutes  protecting  the  Indian 
country  against  the  introduction  of  in- 
toxicants into  it  should,  for  the  limited 
period  of  twenty-five  years,  be  the  law 
for  the  lands  ceded  and  retained  by,  as 
well  as  the  lands  allotted  to,  the  Nez 
Perce  Indians,  was  a  valid  regulation 
based  upon  the  treaty-making  power  of 
the  United  States  and  upon  the  power  of 
congress  to  regulate  commerce  with  those 
Indians,  and  was  not  inconsistent,  in  any 
substantial  sense,  with  the  constitutional 
principle  that  a  new  state  comes  into  the 
Union  upon  entire  equalits'  with  the 
original  states.  Dick  v.  United  States, 
208  U.  S.  340,  359,  52  L.  Ed.  520,  28  S.  Ct. 
399.  See,  also,  Hallowell  v.  United  States, 
221   U.   S.   317,  55   L.   Ed.   750,  31    S.  Ct.   587. 

438-15g.  Same — Otherwise  in  absence 
of  such  special  reservation. — Clairmont 
V.  United  States,  225  U.  S.  551,  56  L.  Ed. 
1201,    32    S.    Ct.    787. 

438-15h.    Offense  of  introducing  intoxi- 


cating liquors  not  shown  where  Indian 
title  has  been  extinguished. — Clairmont  v. 
United  States,  225  U.  S.  551,  56  L.  Ed. 
1201,  32   S.   Ct.  787. 

The  right  of  way  through  the  Flathead 
Indian  Reservation  granted  to  the  North- 
ern Pacific  Railway  Company  by  the  Act 
of  July  2,  1864  (13  Stat,  at  L.  365,  367, 
chap.  2] 7),  §  2,  the  Indian  title  to  which 
was  extinguished  without  reservation  by 
ihe  agreement  of  September  2,  1882,  is 
not  "Indian  country"  within  the  meaning 
of  the  Act  of  Janua'ry  30,  1897  (29  Stat,  at 
L.  506,  chap.  109),  making  it  an  offense 
for  any  person  to  introduce  intoxicating 
liquors  into  the  Indian  country,  "which 
term  shall  include  any  Indian  allotment 
while  the  title  to  the  same  shall  be  held 
in  trust  by  the  government,  or  v/hile  the 
same  shall  remain  inalienable  by  the  al- 
lottee without  the  consent  of  the  United 
States.''  Clairmont  v.  United  States,  225 
U.   S.  551,  56  L.  Ed.  1201,  32   S.   Ct.  78?. 

438-15i.  "Attempting  to  introduce,"  etc. 
—Clairmont  v.  United  States.  225  U.  S. 
551.   56   L.    Ed.   1201,   32   S.   Ct.   787. 

440-29a.  Commerce  in  territories  and 
places  under  exclusive  federal  control. — 
El  Paso,  etc.,  R.  Co.  v.  Gutierrez,  215  U. 
S.   87,    54   L     Ed.    106.    30    S.    Ct.    21. 

440-29b.  Employers'  Liability  Acts. — EI 
Paso,  etc.,  R.  Co.  r.  Gutierrez,  215  U.  S. 
87,  54  L.  Ed.  106,  30  S.  Ct.  21.  See,  also, 
ante,   "Employers'    Liability   Acts,"'    II,   A, 


748 


Vol.  \'II. 


INTERSTATE,  ETC.,  COMMERCE. 


441-443 


Operation  of  Interstate  Commerce  Act  in  the  Territories. — See  post 
"In  General,"  IV,  B,  1. 

III.  State  Taxation. 

B.  Power  to  Tax  Interstate  and  Foreign  Commerce — 1.  In  General. 
— See  note  oS. 

2.  What  Constitutes  Taxation  of  Interstate  and  Foreign  Commerce 

a.  /;/  General. — See  note  39. 

b.  Occupation  and  Business  Tax — (1)  In  General — See  ante,  "Taxation  and 
Licenses,"  II,  A,  2,  d,  (12),  (i),  et  seq. 

(2)  License  Tax  for  Privilege  of  Carrying  on  Interstate  Commerce — (a)  Doc- 
trine Stated. — See  ante,  ""Taxation  and  Licenses,"  II,  A,  2,  d,  (12),  (ij. 

(b)  Application  of  Doctrine — aa.  Carriers  Doing  Interstate  Business. — See 
ante,  "Taxation  and  Licenses,"  II,  A,  2,  d,  (12),  (i);  post,  ""Taxation  of  Prop- 
ert)^  Engaged  in  Commerce,"  III,  B,  2,  e,  et  seq. 


1,  b,  (3),  (b),  dd,  (cc^),  eee.  See  post, 
MASTER  AND  SERVANT. 

Act  of  June  11,  1906,  not  invalid  as  to 
territories  and  District  of  Columbia. — 
The  Federal  Employers'  Liability  Act 
held  unconstitutional  as  to  interstate  com- 
merce in  The  Employers'  Liability  Cases, 
207  U.  S.  463,  490,  52  L.  Ed.  297,  28  S.  Ct. 
141,  is  not  unconstitutional  so  far  as  it  re- 
lates to  common  carriers  engaged  in 
trade  or  commerce  in  the  District  of  Co- 
lumbia and  in  the  territories  of  the  United 
States,  for  the  reason,  among  others,  that 
the  power  of  congress  to  legislate  con- 
cerning trade  and  commerce  in  the  terri- 
tories and  in  the  District  of  Columbia  is 
not  dependent  upon  the  commerce  clause 
of  the  constitution.  EI  Paso,  etc.,  R.  Co. 
V.  Gutierrez,  215  U.  S.  87,  54  L.  Ed.  106, 
30  S.  Ct.  21. 

441-35.  Power  to  tax  interstate  and  for- 
eign commerce. — It  is  thoroughly  well 
settled  tliat  state  laws  may  not  burden 
interstate  commerce,  and  as  one  form  of 
burden  may  exist  in  taxing  the  conduct 
of  interstate  commerce,  such  taxation  has 
been  uniformly  condemned.  United 
States  Exp.  Co.  v.  Minnesota,  223  U.  S. 
335,   56   L.   Ed.   459,   32   S.   Ct.   211. 

443-39.  What  constitutes  taxation  of  in- 
terstate and  foreign  commerce. — The  dif- 
ficulty has  been,  and  is,  to  distinguish  be- 
tween legitimate  attempts  to  exert  the 
taxing  power  of  the  state  and  those  laws 
which,  though  in  the  guise  of  taxation, 
impose  real  burdens  upon  interstate  com- 
merce as  such.  United  States  Exp.  Co. 
V.  Minnesota,  223  U.  S.  335,  56  L.  Ed.  459, 
32   S.   Ct.  211. 

This  difficulty  was  recognized  in  Gal- 
veston, etc.,  R.  Co.  V.  Texas,  210  U.  S. 
217,  52  L.  Ed.  1031,  28  S.  Ct.  638,  wherein 
the  possible  differences  between  the  de- 
cisions in  Philadelphia,  etc..  Steamship 
Co.  V.  Pennsylvania,  122  U.  S.  326.  30  L. 
Ed.  1200,  7  S.  Ct.  1118,  and  Maine  x\ 
Grand  Trunk  R.  Co.,  142  U.  S.  217,  228, 
35  L.  Ed.  994,  12  S.  Ct.  807,  were  com- 
mented upon  and  explained.     Mr.  Justice 


Holmes,  speaking  for  the  court,  said: 
"By  whatever  name  the  exaction  may  be 
called,  if  it  amounts  to  no  more  than  the 
ordinary  tax  upon  property,  or  a  just 
equivalent  therefor,  ascertained  by  refer- 
ence thereto,  it  is  not  open  to  attack  as 
inconsistent  with  the  constitution."  United 
States  Exp.  Co.  v.  Minnesota,  223  U.  S 
335,    56    L.    Ed.    459,    32    S.    Ct.    211. 

The  state  must  be  allowed  to  tax  the 
proDerty,  and  to  tax  it  at  its  actual  value 
as  a  t^oing  concern.  On  the  other  hand, 
tlie  state  can  not  tax  the  interstate  busi- 
ness. The  two  necessities  hardly  admit 
of  an  absolute  logical  reconciliation.  Yet 
the  distinction  is  not  without  sense.  When 
a  legislature  is  trying  simply  to  value 
property,  it  is  less  likely  to  attempt  to  or 
effect  injurious  regulation  that  when  it 
is  aiming  directly  at  the  receipts  from 
interstate  commerce.  A  practical  line  can 
be  drawn  by  taking  the  whole  scheme  of 
taxation  into  account.  That  must  be 
done  by  the  federal  supreme  court  as  best 
it  can.  Galveston,  etc.,  R.  Co.  v.  Texas, 
210  U.  S.  217,  52  L.  Ed.  1031,  28  S.  Ct 
638;  United  States  Exp.  Co.  v.  Minnesota, 
223  U.  S.  335,  56  L.  Ed.  459,  32  S.  Ct.  211. 

As  the  federal  supreme  court  said  in 
Postal  Tel.  Cable  Co.  v.  Adams.  155  U. 
S.  688.  697,  39  L.  Ed.  311,  15  S.  Ct.  268: 
"Doubtless  no  state  could  add  to  the  taxa- 
tion of  property  according  to  the  rule  of 
ordinary  property  taxation,  the  burden  of 
a  license  or  other  tax  on  the  privilege  of 
using,  constructing,  or  operating  an  in- 
strumentality of  interstate  or  interna- 
tional commerce,  or  for  the  carrying  on 
of  such  commerce;  but  the  value  of  prop- 
erty results  from  the  use  to  which  it  is 
put,  and  varies  with  the  profitableness  of 
that  use;  and  by  whatever  name  the  ex- 
action may  be  called,  if  it  amounts  to  no 
more  than  the  ordinary  tax  upon  prop- 
erty, or  a  just  equivalent  therefor,  ascer^ 
tained  by  reference  thereto,  it  is  not  open 
to  attack  as  inconsistent  with  the  con- 
stitiition."  United  States  Exp.  Co.  v. 
Minnesota.  223  U.  S.  335,  56  L.  Ed.  459, 
32    S.   Ct.   211. 


r49 


448-450 


IXTERSTATE,  ETC.,  COMMERCE. 


Vol.  VIL 


cc.  Solicitors  for  Orders  for  Foreign  Products — (  aa  )  In  General — Business 
Confined  to  Interstate  Transactions. — See  note  54. 

(cc)  Persons  Soliciting  Orders  for  Intoxicating  Liquors. — As  to  the  power  of 
the  state  to  impose  a  hcense  tax  upon  the  representatives  of  nonresident  Uquor 
houses  for  the  privilege  of  soliciting  orders  for  intoxicating  liquors  within  the 
state,  see  ante,  "Power  of  State  to  Tax  or  License,"  II,  A,  2,  d,  (17),  (e). 

dd.  Money  and  Exchange  Brokers. — See  ante,  "Contracts  Incidentally  Affect- 
ing Commerce;  Brokerage  and  Commission  Contracts,"  I,  A,  3,  1. 

dd^.  Bankers  Engaged  in  Forzvarding  Deposits  to  Other  States  and  Countries. 
— A  state  may  impose  a  license  tax  upon  a  private  banker  whose  business  consists 
chiefly  in  receiving  deposits  in  small  sums  from  time  to  time  until  they  reach  an 
amount  sufficient  to  be  sent  to  other  states  and  foreign  countries.^'^"' 

ff.  Agency  Engaged  in  Interstate  Commerce. — See  note  62. 


448-54.  Orders  for  pictures  and  picture 
frames — Separability  of  contract  as  to 
frames. — The  sale  within  the  state  of  a 
frame  tor  a  portrait,  made  in  another 
state,  to  fill  an  order  taken  by  a  solicitor 
in  the  former  state,  can  not  be  so  sepa- 
rated from  the  rest  of  the  dealings  be- 
tween the  nonresident  maker  and  the  pur- 
chaser as  to  sustain  the  imposition  of  a 
license  tax,  under  Act  Ala.  IMarch  7,  1307 
(Acts  1907,  p.  469),  §  17,  where  the  order 
for  the  portrait  contemplated  its  delivery 
in  an  appropriate  frame,  which  the  pur- 
chaser of  the  portrait  should  have  the  op- 
tion of  buying  at  the  factory  price.  Doz- 
ier  V.  Alabama,  218  U.  S.  124,  54  L.  Ed. 
965,  30  S.  Ct.  649,  reversing  judgment 
(1908),  46  So.  9,  154  Ala.  83,  129  Am.  St. 
Rep.  51. 

The  plaintiff  in  error  was  convicted  and 
sentenced  to  a  fine  on  a  complaint  for 
breach  of  an  Alabama  statute  of  March  7, 
1907.  By  §  17  of  that  act  a  license  tax  was 
imposed  on  persons  who  did  not  have  a 
permanent  place  of  business  in  the  state, 
and  also  keep  picture  frames  as  a  part  of 
their  stock  in  trade,  if  they  solicited  or- 
ders for  the  enlargement  of  photographs 
or  pictures  of  any  character,  or  for  pic- 
ture frames,  whether  they  made  charge 
for  such  frames  or  not,  or  if  they  sold  or 
disposed  of  picture  frames.  The  supreme 
court  of  Alabama,  while  admitting  that 
the  dealings  concerning  the  pictures  were 
commerce  among  the  states,  sustained 
the  conviction,  on  the  ground  that  the 
sale  of  the  frames  was  a  wholly  local  mat- 
ter. 154  Ala.  83,  129  Am.  St.  Rep.  51,  46 
So.  9.  On  this  state  of  facts  the  court 
says:  "What  is  commerce  among  the 
states  is  a  question  depending  upon 
broader  considerations  than  the  existence 
of  a  technically  binding  contract,  or  the 
time  and  place  where  the  title  passed.  We 
are  of  opinion  that  the  sale  of  the  frames 
can  not  be  so  separated  from  the  rest  of 
the  dealing  between  the  Chicago  company 
and  the  Alabama  purchaser  as  to  sustain 
the  license  tax  upon  it.  Under  the  deci- 
sions, the  statute,  as  applied  to  this  case, 
is   a   regulation    of  commerce   among  the 


states,  and  void  under  the  constitution  of 
the  United  States.  Art.  1,  §  8.  Robbins 
V.  Shelby  County  Taxing  Dist.,  120  U.  S. 
489,  30  L.  Ed.  694,  7  S.  Ct.  592;  Caldwell 
V.  North  Carolina,  187  U.  S.  622.  47  L.  Ed. 
336,  23  S.  Ct.  229;  Rearick  v.  Pennsylvania, 
203  U.  S.  507,  51  L.  Ed.  295,  27  S.  Ct.  159." 
Dozier  z:  Alabama.  218  U.  S.  124,  54  L- 
Ed.  965,  30  S.  Ct.  649. 

It  is  true  that  the  customer  was  not 
bound  to  take  the  frame  unless  he  saw  fit, 
and  that,  the  sale  of  it  took  place  wholly 
within  the  state  of  Alabama,  if  the  sale 
was  made.  But  it  was  agreed  that  the 
frame  should  be  offered  along  with  the 
picture,  and  this  offer  was  a  part  of  the 
interstate  bargain;  and  as  it  was  agreed 
that  the  frame  should  be  offered  at  factory 
prices  and  the  company  and  factory  were 
in  Chicago,  it  was  obviously  contem- 
plated, if  not  agreed,  that  the  frame  should 
come  on  with  the  picture,  which  was  ac- 
tually the  case;  so  considered  the  trans- 
action was  commercially  continuous,  and 
an  interstate  transaction  not  subject  to 
the  taxing  power  of  the  state.  Dozier  z\ 
Alabama,  218  U.  S.  124,  54  L.  Ed.  965,  30 
S.  Ct.  649. 

449-60a.  Bankers  engaged  in  forward- 
ing deposits  to  other  states  and  countries. 
— Engel  7'.  OAIallev,  219  U.  S.  128,  55  L. 
Ed.  128.  31  S.  Ct.  191,  affirming  (C.  C), 
182   Fed.  365. 

Interstate  commerce  is  not  unconstitu- 
tionally regulated  by  the  requirement  of 
N.  Y.  Laws  1910,  chap.  348.  tliat  a  license 
from  the  comptroller  be  obtained  by  in- 
dividuals or  partnerships  desiring  to  en- 
gage in  the  business  of  private  banking, 
as  applied  to  one  whose  business  chiefly 
consists  in  receiving  deposits  in  very  small 
sums  from  time  to  time  until  they  reach 
an  amount  sufficient  to  be  sent  to  other 
states  and  foreign  countries.  Engel  v. 
O'Malley,  219  U.  S.  128,  55  L.  Ed.  128,  31 
S.  Ct.  191. 

450-62.  Agency  engaged  in  interstate 
commerce  —  Orders  for  automobiles — 
Agency  held  not  to  exist  here. — A  state 
docs  not  ta.x  interstate  transactions  by 
imposing  a  tax  upon  a  domestic  corpora- 


rso 


Vol.  VII. 


INTERSTATE,  ETC.,  COMMERCE. 


453-454 


gg.  Peddlers,  etc. — As  to  the  taxation  of  persons  selling  or  taking  orders  for 
pictures  and  picture  frames,  see  ante,  "In  General ;  Business  Confined  to  Inter- 
state Transactions,'"  III.  B,  2,  b,  (2),  (b),  cc,  (aa). 

e.  Taxation  of  Property  Engaged  in  Commerce — (1)  In  General — (aj  Prop- 
erty 2\.itliiii  the  State  Limits — aa.  General  Rules. — See  notes  76.  77. 


tiuri  selling  within  a  desig^iiated  territory 
in  the  state  automobiles  built  by  a  foreign 
corporation  under  an  arrange!nent  by 
which  the  latter  agreed  to  build  for  and 
sell  to  the  former,  for  cash,  at  a  specified 
less  than  list  price,  deliveries  to  be  made 
as  soon  as  practicable  after  orders  should 
be  received,  the  domestic  corporation  cus- 
tomarily making  payment  through  drafts 
attached  to  the  bills  of  lading,  and  there 
being  nothing  connecting  the  tiltiniate 
buyer  with  the  manufacturer  other  than 
a  warranty  direct  from  manufacturer  to 
buyer,  and  such  buyer's  agreement  "to 
pay  the  list  price  f.  o.  b.  factory,"'  since 
such  sales  are  not  interstate  ones;  the  re- 
lation of  principal  and  agent  between  th^ 
foreign  and  domestic  corporations  not  ex- 
isting so  far  as  the  buyer  is  concerned. 
Banker  Eros.  Co.  v.  Pennsylvania,  222  U. 
S.  210,  56  L.  Ed.  168,  32  S.  Ct.  38,  affirm- 
ing judgment  (1909)  Commonwealth  v. 
Banker  Bros.  Co.,  38  Pa.  Super.  Ct.  101. 

453-76.  Taxation  of  property  engaged 
in  comnierce. — The  right  of  the  state  to 
tax  property,  although  it  is  used  in  inter- 
state commerce,  is  thoroughly  well  set- 
tled. United  States  Exp.  Co.  z\  Minne- 
sota, 223  U.  S.  335,  56  L.  Ed.  459.  32  S.  Ct. 
211;  Atchison,  etc.,  R.  Co.  z:  O'Connor, 
223  U.  S.  280,  56  L.  Ed.  436,  32  S.  Ct.  216; 
Galveston,  etc.,  R.  Co.  z:  Texas,  210  U.  S. 
217,  52  L.  Ed.  1031,  28  S.  Ct.  638.  See, 
also,  ante,  "Taxation  and  Licenses,"  II,  A, 
2,  d.  (12),  (i). 

The  difficulty  has  been,  and  is,  to  dis- 
tinguish between  legitimate  attempts  to 
exert  the  taxing  power  of  the  state  and 
those  laws  which,  though  in  the  guise  of 
taxation,  impose  real  burdens  upon  inter- 
state commerce  as  such.  United  States 
Exp.  Co.  V.  Minnesota,  223  U.  S.  335,  56 
L.  Ed.  459,  32  S.  Ct.  211. 

This  difficulty  was  recognized  in  Gal- 
veston, etc.,  R.  Co.  v.  Texas,  210  U.  S.  217, 
52  L.  Ed.  1031,  28  S.  Ct.  638,  wherein  the 
possible  differences  between  the  decisions 
in  Philadelphia,  etc..  Steamship  Co.  v. 
Pennsylvania.  122  U.  S.  326.  30  L.  Ed.  1200, 
7  S.  Ct.  1118,  and  Maine  v.  Grand  Trunk 
R.  Co.,  142  U.  S.  217,  228,  35  L.  Ed.  994,  12 
S.  Ct.  807,  were  commented  upon  and  ex- 
plained. Mr.  Justice  Holmes,  speaking 
for  the  court,  said:  "By  whatever  name 
the  exaction  may  be  called,  if  it  amounts 
to  no  more  than  the  ordinary  tax  upon 
property,  or  a  just  equivalent  therefor,  as- 
certained by  reference  thereto,  it  is  not 
open  to  attack  as  inconsistent  with  the 
constitution."     United  States   Exp.   Co.  v. 


Minnesota,  223  U.  S.  335,  56  L.  Ed.  459,  32 
S.  Ct.  211. 

"The  state  must  be  allowed  to  tax  the 
property,  and  to  tax  it  at  its  actual  value 
as  a  going  concern.  On  the  other  hand, 
the  state  can  not  tax  the  interstate  busi- 
ness. The  two  necessities  hardly  admit 
of  an  absolute  logical  reconciliation.  Yet 
the  distinction  is  not  without  sense.  When 
a  legislature  is  trying  simply  to  value 
property,  it  is  less  likely  to  attempt  to  or 
effect  injurious  regulation  than  when  it  is 
aiming  directly  at  the  receipts  from  inter- 
state commerce.  A  practical  line  can  be 
drawn  by  taking  the  whole  scheme  of  tax- 
ation into  account.  That  must  be  done 
by  this  court  as  best  it  can."  Galveston, 
etc.,  R.  Co.  z:  Texas,  210  U.  S.  217,  52  L. 
Ed.  1031.  28  S.  Ct.  638;  United  States  Exp. 
Co.  v.  Minnesota,  223  U.  S.  335,  56  L.  Ed. 
459,  32  S.  Ct.  211. 

As  the  federal  supreme  court  said  in 
Postal  Tel.  Cable  Co.  z:  Adams,  155  U.  S. 
688,  697,  39  L.  Ed.  311.  15  S.  Ct.  268: 
"Doubtless  no  state  could  add  to  the  taxa- 
tion of  property  according  to  the  rule  of 
ordinary  property  taxation,  the  burden  of 
a  license  or  other  tax  on  the  privilege  of 
using,  constructing,  or  operating  an  in- 
strumentality of  interstate  or  interna- 
tional commerce,  or  for  the  carrying  on  of 
such  commerce;  but  the  value  of  property 
results  from  the  use  to  which  it  is  put, 
and  varies  with  the  profitableness  of  that 
use;  and  by  whatever  name  the  exaction 
may  be  called,  if  it  amounts  to  no  more 
than  the  ordinary  tax  upon  property,  or 
a  just  equivalent  therefor,  ascertained  by 
reference  thereto,  it  is  not  open  to  attack 
as  inconsistent  with  the  constitution." 
United  States  Exp.  Co.  z'.  Minnesota,  223 
U.   S.  335,  56  L.  Ed.  459,  32  S.  Ct.  211. 

Vessels. — See  Southern  Pac.  Co.  v.  Ken- 
tucky, 222  U.  S.  63,  56  L.  Ed.  96,  32  S. 
Ct.  ]3. 

454-77.  Property  and  capital  of  foreign 
corporation  doing  business  as  importers. 
— The  cash  on  hand  and  notes  owned  by 
a  foreign  corporation,  doing  business  in 
the  state  as  importers,  which  are  the  pro- 
ceeds of  the  sale  of  imported  goods  in 
the  unbroken  original  packages,  may  be 
taxed  under  Laws  X.  Y.  1896.  p.  800,  c. 
908,  §  7,  as  capital  employed  in  business 
within  the  state,  without  infringing  the 
prohibition  of  Const.  U.  S.  art.  1,  §  10, 
against  taxing  imports,  although  the  bulk 
of  the  proceeds  of  such  sales  are  remitted 
to  the  home  office  in  Ireland,  where  it  is 
customary  to  hold  the  notes  in  New  York 


r51 


458-461 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


(b)  Property  Outside  of  State  Limits. — See  ante,  "Taxation  and  Licenses,"  II, 
A,  2,  d,  (12),  (i),  et  seq.  See,  also,  ante.  Constitutional  Law,  p.  264;  Due 
Process  of  Law,  p.  475. 

(2)  Corporate  Franchise. — See  ante,  "Taxation  and  Licenses,"  II,  A,  2,  d, 
(12),  (i),  et  seq. 

(3)  Personal  Property  of  Foreign  Corporations — Rolling  Stock. — See  ante, 
Constitutional  Law,  p'  264;  Due  Process  of  Law,  p.  475. 

(S  y2)  Ta.v  on  Capital  Stock. — The  state  can  not  impose  a  tax  upon  the  capital 
stock  of  a  foreign  corporation  engaged  in  interstate  commerce,  the  greater  part  of 
whose  property  and  business  is  outside  the  state,  and  whose  business  done  within 
the  state  is  principally  interstate  commerce.  Such  a  tax  is  of  the  kind  declared  by 
the  supreme  court  of  the  United  States  to  be  unconstitutional,  even  though  the 
temporary  forfeiture  of  the  right  to  do  business  declared  by  the  statute  be  confined 
to  business  wholly  with  the  state.^^^ 

(4)  Privilege  Tax  Based  upon  Value  of  Property. — See  ante,  "In  General,"  II, 
A,  2,  d,  (12),  (i),  aa;  "General  Rules,"  III,  B,  2,  e,  (1),  (a),  aa;  post,  "Gross 
Receipts,"  III,  B,  2,  f. 

(5)  The  Unit  Rule. — See  ante,  "General  Rules,"  III,  B,  2,  e,  (1),  (a),  aa. 
f.    Gross  Receipts. — See  note  3. 


for  collection,  and  to  retain  there  sufficient 
sums  to  meet  the  local  expenses  of  the 
business,  and  to  pay  the  duties  on  subse- 
quent importations.  Judgment  (1906),  77 
N.  E.  19,  184  N.  Y.  275.  affirmed.  Burke 
-V.  Wells,  208  U.  S.  14,  52  L.  Ed.  370,  28  S. 
Ct.  193. 

The  plaintiffs  in  error  have  established 
a  warehouse  and  place  of  business  in  the 
state  of  New  York  for  the  sale  of  their 
imported  goods.  This  business  is  of  a 
permanent  character;  the  goods  are  con- 
stantly received  and  sold  and  replaced  by 
other  goods.  Cash  is  deposited  in  bank 
in  New  York,  and  is  subject  to  use  as  the 
needs  of  the  business  may  require.  In 
this  business  it  takes  notes  for  sales  of 
such  goods.  These  notes  are  not  directly 
transmitted  to  its  home  office  in  Dublin, 
but  are  held  for  collection  in  connection 
with  the  business  in  New  York;  and  while 
the  bulk  of  the  proceeds  may  be  sent 
abroad,  sufficient  sums  are  retained  to 
meet  the  expenses  of  the  business  and  pay 
duties  on  subsequent  importations  of 
goods.  The  constitutional  protection  af- 
forded the  importer  against  state  action 
does  not  require  the  property  thus  held 
and  used  to  be  exempted  from  state  tax- 
ation. Burke  v.  Wells,  208  U.  S.  14,  52  L. 
Ed.  379,  28  S.  Ct.  193. 

458-91a.  Tax  on  capital  stock. — Atchi- 
son, etc.,  R.  Co.  V.  O'Connor,  223  U.  S. 
280,  56  L.  Ed.  436,  32  S.  Ct.  216,  citing 
Western  Union  Tel.  Co.  v.  Coleman,  216 
U.  S.  1,  54  L.  Ed.  355,  30  S.  Ct.  190;  Pull- 
man Co.  V.  Coleman,  216  U.  S.  56,  54  L. 
Ed.  378,  30  S.  Ct.  232;  Ludwig  v.  Western 
Union  Tel.  Co.,  216  U.  S.  140,  54  L.  Ed. 
423,  30  S.  Ct.  280. 

The  tax  imposed  under  Colo.  Laws  1907, 
chap.  211,  upon  the  capital  stock  of  a  for- 
eign railway  company,  the  greater  part  of 
whose    property    and    business    is    outside 


the  state,  and  whose  business  done  within 
the  state  is  principally  interstate  coin- 
merce,  is  invalid  under  the  commerce  and 
due  process  of  law  clauses  of  the  federal 
constitution,  even  if  the  temporary  forfei- 
ture of  the  right  to  do  business,  declared 
by  the  statute  in  case  of  failure  to  pay  the 
tax,  can  be  confined  by  construction  to 
business  wholly  within  the  state.  Atchi- 
son, etc.,  R.  Co.  V.  O'Connor,  223  U.  S. 
280,  56  L.   Ed.  436,  32  S.   Ct.  216. 

461-3.  Gross  receipts. — "In  Philadel- 
phia, etc..  Steamship  Co.  v.  Pennsylvania, 
122  U.  S.  326,  30  L.  Ed.  1200,  7  S.  Ct.  1118, 
it  was  decided  that  a  tax  upon  the  gross 
receipts  of  a  steamship  corporation  of  the 
state,  when  such  receipts  were  derived 
from  commerce  between  the  states  and 
with  foreign  countries,  was  unconstitu- 
tional. We  regard  this  decision  as  un- 
shaken and  as  stating  established  law.  It 
cites  the  earlier  cases  to  the  same  effect. 
Later  ones  are  Ratterman  v.  Western  Un- 
ion Tel.  Co.,  127  U.  S.  411,  32  L.  Ed.  229; 
Western  Union  Tel  Co.  v.  Pennsylvania, 
128  U.  S.  39,  32  L.  Ed.  345,  9  S.  Ct.  6; 
Western  Union  Tel.  Co.  v.  Alabama  State 
Board,  132  U.  8^472,  33  L.  Ed.  409,  10  S. 
Ct.  161.  See,  also,  Pullman's  Palace  Car 
Co.  V.  Pennsylvania,  141  U.  S.  18,  25,  35  L. 
Ed.  613;  Ficklen  v.  Shelby  County  Taxing 
Dist.,  145  U.^S.  1,  22,  36  L.  Ed.  601;  New 
York,  etc.,  R.  Co.  v.  Pennsylvania,  158  U. 
S.  431,  438,  39  L.  Ed.  1043;  McHenry  v. 
Alford,  168  U.  S.  651,  671,  42  L.  Ed.  614; 
Atlantic,  etc.,  Tel.  Co.  v.  Philadelphia,  190 
U.  S.  160,  162,  47  L.  Ed.  995.  In  Maine  v. 
Grand  Trunk  R.  Co.,  142  U.  S.  217,  35  L. 
Ed.  994,  12  S.  Ct.  807,  the  authority  of  the 
Philadelphia  Steamship  Company  Case 
was  accepted  without  question,  and  the 
decision  was  justified  by  the  majority  as 
not  in  any  way  qualifying  or  imparing  it. 
The   validity   of  the   distinction  was   what 


752 


Vol.  VII. 


INTERSTATE,  ETC.,  COMMERCE. 


461 


j.  Taxation  of   Subjects  of    Commerce- 
ports. — Foreign  Warehouse  Receipts. - 


-(2)  Imports  and    Exports — (a)  Ex- 
-A  state  can  not  tax  German  ware- 


divided  the  court."  Galveston,  etc.,  R.  Co. 
V.  Texas,  210  U.  S.  217,  224,  52  L.  Ed.  10.31, 
28  S.  Ct.  638. 

Tax  "equal  to"  stated  per  cent  of  gross 
receipts. — The  state  can  not  impose  the 
tax  levied  b}^  Act  Tex.  April  17,  190.5,  p. 
336,  c.  141,  upon  railway  companies  whose 
lines  lie  wholly  within  the  state,  "equal  to 
1  per  centum  of  their  gross  receipts," 
where  a  part,  and,  in  some  cases,  much  the 
larger  part,  of  these  gross  receipts,  is  de- 
rived from  the  carriage  of  "passengers  and 
freight  coming  from,  or  destined  to,  points 
without  the  state.  Judgment,  State  z'. 
Galveston,  H.  &  S.  A.  Ry.  Co.  (Tex.  1906) 
97  S.  W.  71,  reversed.  Galveston,  etc.,  R. 
Co.  V.  Texas,  210  U.  S.  217,  52  L.  Kd.  1031, 
28  S.  Ct.  638. 

This  is  an  action  against  certain  rail- 
roads to  recover  taxes  and  penalties.  The 
supreme  court  of  the  state  held  the  pen- 
alties to  be  void  under  the  state  constitu- 
tion, but  upheld  the  tax.  State  z'.  Galves- 
ton, etc.,  R.  Co.,  100  Tex.  143,  97  S.  W.  71. 
The  railroads  brought  the  case  here 
mainly  on  the  ground  that  the  law  upon 
which  the  action  is  based  is  an  attempt 
to  regulate  commerce  among  the  states. 
In  the  course  of  the  opinion  the  court 
said:  "By  whatever  name  the  exaction 
may  be  called,  if  it  amounts  to  no  more 
than  the  ordinary  tax  upon  property  or  a 
just  equivalent  therefor,  ascertained  by 
reference  thereto,  it  is  not  open  to  attack 
as  inconsistent  with  the  constitution.  The 
question  is  whether  this  is  such  a  tax. 
It  appears  sufficiently,  perhaps  from  what 
has  lieen  said,  that  we  are  to  look  for  a 
practical  rather  than  a  logical  or  philoso- 
phical distinction.  The  state  must  be  al- 
lowed to  tax  the  property,  and  to  tax  it  at 
its  actual  value  as  a  going  concern.  On  the 
other  hand,  the  state  can  not  tax  the  inter- 
state business.  The  two  necessities  hardly 
admit  of  an  absolute  logical  reconciliation. 
Yet  the  distinction  is  not  without  sense. 
When  a  legislature  is  trying  simply  to 
value  propertj',  it  is  less  likely  to  attempt 
or  lo  effect  injurious  regulation  than  when 
it  is  aiming  directly  at  the  receipts  from 
interstate  cominerce.  A  practical  line  can 
be  drawn  by  taking  the  whole  scheme  of 
taxation  into  account.  That  must  be  done 
by  this  court  as  best  it  can.  Neither  the 
state  courts  nor  the  legislature,  by  giving 
the  tax  a  particular  name  or  by  the  use  of 
some  form  of  words,  can  take  away  our 
duty  to  consider  its  nature  and  effect.  If 
it  bears  upon  commerce  among  the  states 
so  directly  as  to  amount  to  a  regulation 
in  a  relatively  immediate  waj',  it  will  not 
be  saved  bv  name  or  form."  Galveston, 
etc.,  R.  Co.'t'.  Texas,  210  U.  S.  217,  52  L. 
Ed.  1031,  28  S.  Ct.  638;  Stockard  r.  Mor- 
gan, 185  U.  S.  27,  37,  46  L.  Ed.  785,  22  S. 

12  U  S    Enc— 48  753 


Ct.   576;   Asbell  z:   Kansas,   209   U.   S.  251, 
256,  52  L.  Ed.  778,  28  S.  Ct.  485. 

"The  distinction  between  a  tax  'equal 
to'  1  per  cent  of  gross  receipts,  and  a  tax 
of  1  per  cent  of  the  same,  seems  to  us 
nothing  except  where  the  former  phrase 
is  the  index  of  an  actual  attempt  to  reach 
the  property  and  to  let  the  interstate  traf 
fie  and  the  receipts  from  it  alone.  We 
find  no  such  attempt  or  anything  to  qual- 
ify the  plain  inference  from  the  statute, 
taken  by  itself.  On  the  contrary,  we 
rather  infer  from  the  judgment  of  the 
state  court  and  from  the  argument  on  be- 
half of  the  state  that  another  tax  on  the 
property  of  the  railroad  is  upon  a  valua- 
tion of  that  property,  taken  as  a  going 
concern.  This  is  merely  an  effort  to  reach 
the  gross  receipts,  not  even  disguised  by 
the  name  of  an  occupation  tax,  and  in  no 
way  helped  by  the  words  'equal  to.'  " 
Galveston,  etc.,  R.  Co.  v.  Texas,  210  U.  S. 
217,  52  L.  Ed.  1031,  28  S.  Ct.  638. 

Same — As  to  domestic  corporations. — 
It  does  not  matter  that  the  corporations 
are  domestic  corporations,  or  that  the  tax 
embraces  indiscriminately  gross  receipts 
from  commerce  within  as  well  as  outside 
of  the  state.  Galveston,  etc.,  R.  Co.  v. 
Texas,  210  U.  S.  217,  52  L.  Ed.  1031,  28  S. 
Ct.  638. 

Gross  revenue  tax  "in  addition  to" 
property  tax. — As  applied  to  express  com- 
panies whose  receipts  are  derived  largely 
from  commerce  among  the  states  and 
which  also  receives  large  sums  as  income 
from  investments  in  bonds  and  land  all 
outside  the  state,  a  statute  which  imposes 
upon  public  service  corporations  operat- 
ing within  the  state  a  "gross  revenue  tax," 
'which  shall  be  in  addition  to  the  taxes 
levied  and  collected  upon  an  ad  valorem  ba- 
sis upon  the  propertj^  and  assets  of  such 
corporations,"  is  unconstitutional,  not 
only  as  an  attempt  to  tax  interstate  com- 
merce, but  as  an  attempt  to  levy  a  tax 
upon  property  situated  without  and  be- 
yond the  jurisdiction  of  the  state.  Meyer 
z:  Wells,  etc.,  Co.,  223  U.  S.  298,  56  L.  Ed. 
445,  32  S.  Ct.  218. 

A  nonresident  express  company  whose 
receipts  are  largely  derived  from  inter- 
state commerce  and  from  investments  in 
bonds  and  land  outside  the  state  can  not 
validly  be  subjected  to  the  "gross  revenue 
tax"  exacted  by  Okla.  Laws  1910,  chap.  44, 
from  public  service  corporations,  "which 
shall  be  in  addition  to  the  taxes  levied 
and  collected  upon  ad  valorem  basis  upon 
the  property  and  assets  of  such  corpora- 
tion," equal  to  such  proportion  of  a  speci- 
fied percentage  of  its  gross  receipts  from 
every  source  whatsoever  as  the  portion 
of  its  business  done  within  the  state  bears 
to    the    whole    of  its    business.      Meyer   z: 


465-466 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


house  receipts,  valuing  them  at  the  value  of  the  whisky  they  represent,  where  it 
can  not  tax  the  whisky  itself,  either  because  it  was  exported  from  the  United 
States  or  because  of  its  situs. ^^^ 

(b)  Imports — aa.  Property  in  Transit. — See  ante,  "When  Protection  Attaches," 
I,  A,  4,  a. 

bb.  Taxation  upon  Arrival  at  Destination — (aaj  Property  Retaining  Distinc- 
tive Character  as  Imports — bbb.  Original  Package  Rule — (aaa)  In  General. — See 
note  27. 


Wells,  etc.,  Co.,  223  U.  S.  298,  56  L.  Ed. 
445,  .32.  S.  Ct.  218,  following  Fargo  v.  Hart, 
193  U.  S.  490,  48  L.  Ed.  761,  24  S.  Ct.  498; 
Galveston,  etc.,  R.  Co.  v.  Texas,  210  U.  S. 
217,  52  L.  Ed.  1031,  28  S.  Ct.  638. 

The  "gross  revenue  tax"  exacted  from 
a  nonresident  express  company  by  Okla. 
Laws  1910,  chap.  44,  "which  shall  be  in  ad- 
dition to  the  taxes  levied  and  collected 
upon  ad  valorem  basis  upon  the  property 
and  assets  of  such  corporation"  and  equal 
to  such  proportion  of  a  specified  percent- 
age of  its  gross  receipts  from  every  source 
whatsoever  as  the  portion  of  its  business 
done  within  the  state  bears  to  the  whole 
of  its  business,  can  not  be  construed,  for 
the  purpose  of  saving  its  constitutionality, 
as  referring  only  to  the  receipts  from 
commerce  wholly  within  the  state.  Mever 
V.  Wells,  etc.,  Co.,  223  U.  S.  298,  56  L.  Ed. 
445,  32   S.   Ct.  218. 

Gross  revenue  tax  "in  lieu  of  all  taxes 
on  property." — Including  the  gross  re- 
ceipts of  a  nonresident  express  company, 
upon  the  basis  of  which  a  tax  is  imposed 
by  Minn.  Rev.  Laws  1905,  chap.  11,  "in 
lieu  of  all  taxes  on  its  property,"  the 
earnings  from  interstate  shipments,  where 
the  transportation  while  in  the  company's 
hands  was  performed  wholly  within  the 
state,  does  not  unconstitutionally  burden 
interstate  commerce,  but  is  an  exercise  of 
the  state's  power  to  measure  a  legitimate 
property  tax  by  receipts  which  in  part 
come  from  interstate  cominerce,  which 
could  not  in  itself  be  taxed.  United  States 
Exp.  Co.  v.  Minnesota,  223  U.  S.  335,  56 
L.  Ed.  459,  32  S.  Ct.  211. 

The  tax  in  the  present  case  is  not  like 
those  held  invalid  in  the  Galveston  Case 
and  the  Oklahoma  Case,  being  in  addi- 
tion to  other  state  taxation  reaching  the 
property  of  all  kinds  of  the  express  com- 
pany. The  tax  to  be  collected  in  part 
from  the  earnings  of  interstate  commerce 
was  part  of  a  scheme  of  taxation  seeking 
to  reach  the  value  of  the  property  of  such 
companies  in  the  state,  measured  by  the 
receipts  from  business  done  within  the 
state.  The  statute  was  not  aimed  exclu- 
sively at  the  avails  of  interstate  commerce. 
Philadelphia,  etc..  Steamship  Co.  v.  Penn- 
sylvania, 122  U.  S.  326.  30  L.  Ed.  1200,  7 
S.  Ct.  1118,  but,  as  in  the  Maine  Case,  was 
an  attempt  to  measure  the  amount  of  tax 
v/ithin  the  admitted  power  of  the  state  by 
income  derived,  in  part,  from  the  conduct 


of  interstate  commerce.  United  States 
Exp.  Co.  V.  Minnesota,  223  U.  S.  335,  56 
L.  Ed.  459,  32  S.  Ct.  211. 

Same — Earnings  between  points  within 
state  v/here  route  between  same  lies  partly 
in  another  state. — The  earnings  of  a  non- 
resident express  company  carrying  goods 
between  two  points  within  the  state  over 
a  route  incidentally  traversing  a  portion 
of  another  state,  so  far  as  they  are  de- 
rived from  the  carriage  within  the  state, 
may  be  included  in  the  gross  receipts, 
upon  which  the  tax  imposed  by  Minn. 
Rev.  Laws,  1905,  chap.  11,  is  based,  with- 
out unconstitutionally  burdening  inter- 
state commerce,  or  denying  due  process 
of  law.  United  States  Exp.  Co.  z'.  Minne- 
sota, 223  U.  S.  335,  56  L.  Ed.  459,  32  S.  Ct. 
211. 

465-20a.  Foreign  warehouse  receipts. — 
Selliger  v.  Kentucky,  213  U.  S.  200,  53  L. 
Ed.  761,  29  S.  Ct.  449. 

It  appeared  in  this  case  that  the  whisky 
was  actuall}'  exported  froin  this  country 
and  stored  abroad,  and  it  was  alleged  that 
parctically  all  of  it  would  ultimately  be 
brought  back  to  this  country,  and  that  the 
exportation  and  storage  of  it  abroad  was 
done  for  the  purpose  of  putting  it  beyond 
the  reach  of  the  taxing  power  of  thi;  state, 
and  therefore  the  state  was  entitled  to  tax 
the  receipts  representing  the  whisky  as 
being  of  equal  value  with  the  whisky;  but 
the  court  said:  "Assuming,  as  the  court 
of  appeals  assumed,  that  the  whisky  is  ex- 
empt under  the  constitution  of  the  United 
States,  we  are  of  opinion  that  the  protec- 
tion of  the  constitution  extends  to  ware- 
house receipts  locally  present  within  the 
state.  What  was  said  by  Chief  Justice 
Taney  about  bills  of  lading  applies  to 
them,  mutatis  mutandis:  *A  duty  upon 
that  is,  in  substance  and  effect,  a  duty  on 
the  article  exported."  "  Selliger  v.  Ken- 
tucky. 213  U.  S.  200,  53  L.  Ed.  761,  29  S. 
Ct.  449,  citing  Almy  v.  California,  24  How. 
169,  16  L.  Ed.  644;  Fairbank  z'.  United 
States,  181  U.  S.  283,  294,  45  L.  Ed.  862,  21 
S.  Ct.  648. 

466-27.  State  tax  on  imports  from  for- 
eign countries  void  under  commerce 
clause. — As  to  imported  goods,  the  state 
may  not  impose  taxes  directly  upon  the 
goods  or  upon  the  right  to  sell  them,  or 
impose  license  fees  upon  importers  for 
the  privilege  of  selling,  so  long  as  the 
goods  remain  in  the  original  package  un- 


754 


Vol.  MI. 


INTERSTATE,  ETC.,  COMMERCE. 


468-476 


(bb)  Property  Commingled  zvith  General  Mass  of  Property — aaa.  In  General. 
— See  notes  31,  33. 

bbb.    Discriminntion — (aaa)  In  General. — See  note  3S. 

(ccj  Exercise  of  Police  Power — Intoxicating  Liquors. — See  ante.  "Power  of 
State  to  Tax  or  License."'  II,  A,  2,  d,  (17),  (e). 

IV.    Interstate  Commerce  Act. 

A.  Nature,  Purpose,  Constitutionality  and  Construction — 1.  Nature; 
AND  Purpose:. — Primary  Purpose,  Regulation. — \\hatever  may  be  the  power 
of  congress,  it  did  not  attempt,  in  the  Act  of  February  4,  1887,  c.  104,  24  Stat.  379, 
to  do  more  than  to  regulate  the  interstate  business  of  common  carriers,  and  the 
primary  purpose  for  which  the  commission  was  established  was  to  enforce  the 
regulations  which  congress  had  imposed.-''-'' 

Agreements  for  Restraint  of  Trade  or  Trusts. — See  post,  MoxopoLms 
AND  Corporate  Trusts. 

Delegation  of  Powers  to  Commission  as  Excluding  State  Action. — The 

mere  delegation    by  congress  to  the    interstate  commerce  commission    of  certain 
powers  is  not  equivalent  to  specific  action  by  congress  in  respect  to  the  particular 


incorporated  into  the  general  property. 
All  such  attempts  at  taxation  are  in  viola- 
tion of  the  constitution  and  void.  Burke 
:•.  Wells,  SOS  U.  S.  14,  52  L.  Ed.  370,  28  S. 
Ct.  193. 

The  constitutional  protection  is  in- 
tended to  secure  the  right  to  bring  in,  and 
to  sell  in  the  original  packages,  the  goods 
imported;  and,  that  this  right  may  not  be 
impaired,  direct  taxes  tipon  goods  or  li- 
cense taxes  for  the  privilege  of  sale  can 
not  be  levied.  Burke  v.  Wells,  208  U.  S. 
14.  52  L.  Ed.  370.  28  S.  Ct.  193.  Sse,  also, 
ante,  "Original  Packages,''  I.  A,  4,  b,  (2). 

468-31.  Property  commingled  with  gen- 
eral mass  of  property. — The  importer  may 
lose  this  right  of  protection  by  mingling 
such,  goods  with  other  property,  and  al- 
tering their  character  as  importatiojis  in 
original  packages,  and  making  thern  by 
his  conduct  subject  to  the  taxine  power 
of  the  state.  Burke  v.  Wells,  208  U.  S.  14, 
52  L.  Ed.  370,  28  S.  Ct.  193. 

469-33.  It  has  been  settled  that  where 
property  which  has  moved  in  the  channels 
of  interstate  commerce  is  at  rest  within 
a  state  and  has  become  commingled  with 
the  mass  of  property  therein,  it  may  be 
taxed  by  such  state  without  thereby  im- 
posing a  direct  burden  upon  interstate 
commerce,  that  doctrine,  as  expounded  in 
the  decided  cases,  including  those  relied 
upon  by  the  court  below,  has  always  e.K- 
pressly  excluded  the  conception  that  a 
state  could,  without  directly  burdening 
interstate  commerce,  discrimmate  against 
such  property  by  imposing  upon  it  a  bur- 
den of  taxation  greater  than  that  levied 
upon  domestic  property  of  a  like  nature. 
Darnell  &  Son  Co.  v.  Memphis.  208  U.  S. 
113,  52  L.  Ed.  413,  28  S.  Ct.  247. 

470-35.  Discrimination — In  general.— No 
state    can,    consistently    with    the    federal 


constitution,  impose  upon  the  products  of 
other  states,  brought  therein  for  sale  or 
use,  or  upon  citizens  because  engaged  in 
the  sale  therein,  or  the  transportation 
thereto,  of  the  products  of  other  state?, 
more  onerous  public  burdens  or  taxes 
than  it  imposes  upon  the  like  products  of 
its  own  territory.  Darnell  &  Son  Co.  v. 
Memphis.  208  U.  S.  113,  52  L.  Ed.  413,  28 
S.  Ct.  247. 

A  tax  upon  property  within  the  state 
which  is  the  product  of  the  soil  of  ether 
states,  imposed  tmder  the  authority  of 
Const.  Tenn.  1870,  art.  2,  §§  28-30,  and 
Acts  Tenn.  1903,  p.  632,  c.  258,  §§  1,  2, 
which  exempt  like  property  when  pro- 
duced from  the  soil  of  Tennessee,  violates 
Const.  U.  S.  art.  1.  §  8,  as  directly  inter- 
fering with  interstate  commerce.  Decree 
(1906)  95  S.  W.  816.  116  Tenn.  424.  re- 
versed. I.  M.  Darnell  &  Son  Co.  v.  Mem- 
phis, 208  U.  S.  113,  52  L.  Ed.  413.  28  S.  Ct. 
247. 

A  system  of  taxation  discriminating  in 
favor  of  residents  and  domestic  products, 
and  against  nonresidents  and  foreign 
products,  might  result  in  commercial  non- 
intercourse  between  the  states,  and  as 
a  regulation  of  interstate  commerce  would 
clearly  be  invalid.  The  objection,  how- 
ever, would  not  apply  to  a  uniform  tax 
upon  goods  which  does  not  discriminate 
in  favor  of  residents  or  products  of  the 
state.  Brown-Forman  Co.  v.  Kentucky, 
217  U.  S.  563,  54  L.  Ed.  883,  30  S.  Ct.  578; 
Woodruff  V.  Parham.  8  Wall.  123.  19  L. 
Ed.  382;  Hinson  v.  Lott.  8  Wall.  148,  19  L. 
Ed.  389;  Emert  i:  Missouri,  156  U.  S.  296, 
39  L.  Ed.  430,  15  S.  Ct.  367. 

476-58a.  Primary  purpose  regulation. — 
Harriman  --.  Interstate  Commerce  Comm., 
211  U.  S.  407,  418.  53  L.  Ed.  253,  29  S.  Ct. 
115. 


"55 


477 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


matters  involved,  which  prevents  a  state  from  making  regulations  conducive  to  the 
vv^elfare  of  its  citizens  that  may  indirectly  affect  commerce.^"^ 

2.  Constitutionality. — Power  to  Make  Principal  Liable  for  Acts  of 
Agents. — There  can  be  no  question  of  the  power  of  congress  to  regulate  inter- 
state commerce  to  prevent  favoritism,  and  to  secure  equal  rights  to  all  engaged  in 
interstate  trade ;  and  in  so  doing  it  may  control  those  who  are  conducting  inter- 
state commerce  by  holding  them  responsible  for  the  intent  and  purposes  of  the 
agents  to  whom  they  have  delegated  the  power  to  act  in  the  premises.*' ^^ 

Effect  upon  Exports. — The  mere  incidental  eft'ect  upon  exports  which  may 
be  produced  by  applying  to  a  shipment  from  an  interior  point  of  the  United  States 
to  a  foreign  port  the  provisions  of  the  Elkins  Act  of  February  19,  1903,  making 
it  an  offense  against  the  United  States  to  obtain  the  transportation  of  property  in 
interstate  or  foreign  commerce  at  less  than  the  carrier's  published  rates,  does  not 
render  such  provisions  repugnant  to  U.  S.  Const,  art.  1,  §  9,  no.  5,  forbidding  the 
levying  of  export  taxes  or  duties.*''^'' 

Preference  of  Ports  of  One  State  Over  Those  of  Another. — Preference 
is  not  given  to  the  ports  of  one  state  over  those  of  another  by  applying  to  articles 
intended  for  foreign  export  the  provisions  of  the  Elkins  Act  of  February  19,  1903, 
making  it  an  offense  against  the  United*  States  to  accept  transportation  of  goods 
in  interstate  or  foreign  commerce  at  less  than  the  carrier's  published  rates.*^^"^ 

Who  May  Raise  Question  of  Constitutionality. — A  law  will  not  be  de- 
clared invalid  at  the  instance  of  one  not  aft'ected  hy  it ;  hence  persons  not  aff'ected 
by  statutory  provisions  alleged  to  be  unconstitutional  have  no  standing  to  urge  con- 
stitutional objections  against  the  same.'"^*^ 

B.  Carriers  Subject  to  Act — 1.  In  General. — Express  Companies. — 
The  amendment  to  the  Interstate  Commerce  Act  by  the  Act  of  June  29,  1906,  c. 
3591,  34  Stat.  584,  brought  express  companies  within  the  terms  of  the  act.     The 


477-60a.  Delegation  of  powers  to  com- 
missions as  excluding  state  action. — ]\Iis- 
souri  Pac.  R.  Co.  z\  Larabee  Flour  Mills 
Co.,  211  U.  S.  G12.  53  L.  Ed.  353,  29  S.  Ct. 
314. 

477-61a.  Power  to  make  principal  liable 
for  acts  of  agents. — New  York,  etc.,  R. 
Co.  z:  United  v^tates,  212  U.  S.  481,  496,  53 
L.  Ed.  613,  29  S.  Ct.  304. 

477-61b.  Effect  upon  exports. — Armour 
Packing  Co.  z:  United  States,  209  U.  S.  56, 
52  L.   Ed.  681,  28  S.  Ct.   428. 

477-61C.  Preference  of  ports  of  one  state 
over  those  of  another. — -Armour  Packing 
Co.  V.  United  States,  209  U.  S.  56,  52  L. 
Ed.  681,  28  S.  Ct.  428. 

477-61d.  Who  may  raise  question  of 
constitutionality. — Williams  z\  Walsh,  222 
U.  S.  415,  56  L.  Ed.  253,  32  S.  Ct.  137;  At- 
lantic, etc.,  R.  Co.  V.  Riverside  IMills,  219 
U.  S.  186,  55  L.  Ed.  167,  31  S.  Ct.  164. 

Thus  the  constitutionality  of  the  Act  of 
Feb.  4.  1887.  c.  104,  §  8,  24  Stat.  386  (U.  S. 
Comp.  Stat.  1901,  p.  3154),  as  amended  by 
Act  June  29,  1906,  c.  3591,  §  7,  34  Stat.  593 
(U.  S.  Comp.  St.  Supp.  1909,  p.  1163),  ap- 
plicable to  interstate  carriers  and  impos- 
ing upon  the  initial  carrier  liability  for 
loss  regardless  of  whether  the  same  oc- 
curred on  its  portion  of  the  route  or  upon 
that  of  a  connecting  carrier,  can  not  be 
attacked  upon  the  ground  that  it  deprives 
the    receiving    carrier    of    his    liberty    to 


select  his  own  agencies  for  a  continuous 
route  of  the  transportation  beyond  his 
own  line,  where  it  appears  that  in  the  in- 
stant case  the  defendant  had  selected  its 
own  agencies  and  the  connecting  carriers 
and  made  its  own  arrangements  and  rates 
before  receiving  the  goods  in  question 
for  shipment.  Atlantic,  etc.,  R.  Co.  v. 
Riverside  Mills,  219  U.  S.  186,  55  L.  Ed. 
167,  31  S.  Ct.  164,  followed  in  Louisville, 
etc.,  R.  Co.  v.  Scott,  219  U.  S.  209,  55  L. 
Ed.  183,  31  S.  Ct.  171.  ^ 

A  corporate  carrier  engaged  in  inter- 
state commerce  has  no  standing  to  object 
that  the  last  paragraph  §  1  (forbidding  re- 
bates) of  the  Elkins  Act  (32  Stat.  847)  is 
unconstitutional  in  that  it  applies  to  in- 
dividual carriers  as  well  as  those  of  a  cor- 
porate character  and'  attributes  the  acts 
of  the  agents  of  such  individual  carriers 
to  them,  thereby  making  the  crime  of  one 
person  that  of  another,  thus  depriving  the 
latter  of  due  process  of  law  and  the  pre- 
sumption of  innocence  which  the  law 
raises  in  his  favor.  Moreover  this  section 
of  the  statute  is  separable,  and  even  if  the 
presumption  thus  created  as  to  individuals 
were  unconstitutional,  the  act  would  still 
remain  valid  as  to  corporate  carriers. 
New  York,  etc.,  R.  Co.  v.  United  States, 
212  U.  S.  481,  53  L.  Ed.  613,  29  S.  Ct.  304; 
New  York,  etc.,  R.  Co.  z'.  United  States, 
No.  2,  212  U.  S.  500,  53  L.  Ed.  624,  29  S.  Ct. 
309. 


756 


\'ol.  MI.  INTBRSTATB,  ETC.,  COMMERCE.  478 

express  companies  are  therefore  obliged  to  file  and  publish  their  rates  for  the 
transportation  of  property  under  §  6  of  the  Interstate  Commerce  Act  thus  as 
amended.*^  ■^^ 

Carriers  by  Water  on  Great  Lakes. — Certain  it  is  that,  when  engaged  in 
carrying  on  traffic  under  joint  rates  with  railroads,  filed  with  the  commission,  the 
carriers  (by  water;  are  bound  to  deal  upon  like  terms  with  all  shippers  who  seek 
to  avail  themselves  of  such  joint  rates,  and  are  subject  to  the  general  requirements 
of  the  act  preventing  and  punishing  the  giving  of  rebates,  the  making  of  unjust 
discriminations,  the  showing  of  favoritism,  and  other  practices  denounced  in  the 
various  sections  of  the  act.  They  are  undoubtedly  subject  to  the  provisions  of 
§  12  of  the  act,  which  permits  the  commission  to  inquire  into  the  management  of 
business  of  all  common  carriers  subject  to  the  act,  and  to  keep  itself  informed  as 
to  the  manner  and  method  in  whicli  the  same  is  conducted,  with  the  right  to  obtain 
from  such  common  carriers  the  full  and  complete  information  necessary  to  enable 
the  commission  to  carry  out  the  objects  for  which  it  was  created."-**^ 

Carriers  in  the  Territories. — By  the  Act  of  June  29,  1906  (34  Stat,  at  L. 
584,  chap.  3591,  L'.  S.  Comp.  Stat.  Supp.  1909,  p.  1150j,  the  provisions  of  the  In- 
terstate Commerce  Act  were  extended  to  carriers  engaged  in  the  transportation 
of  passengers  or  property  from  one  state  or  territory  of  the  United  States  to  any 
other  state  or  territory,  or  from  one  place  in  a  territory  to  another  place  in  the 
same  territory .^^^ 

Same — Powers  of  Secretary  of  Interior  Superseded. — The  interstate 
commerce  law  preceded  that  which  gave  authority  to  the  secretary  of  the  interior 
to  revise  and  modify  railroad  rates,  and  the  authority  was  confined  to  that  special 
exercise;  and,  so  far,  it  may  be  said  to  have  amended  the  Interstate  Commerce 
Act.  At  that  time  it  had  been  held  in  the  Maximum  Rate  Cases  (162  U.  S.  184, 
40  L.  Ed.  935,  5  Inters.  Com.  Rep.  391,  16  Sup.  Ct.  Rep.  700,  167  U.  S.  478.  42  L. 
Ed.  243,  17  Sup.  Ct.  Rep.  896,  and  168  U.  S.  144,  42  L.  Ed.  414,  18  Sup.  Ct.  Rep. 
45),  that  congress  had  not  conferred  upon  the  interstate  commerce  commission 
the  legislative  power  to  prescribe  rates,  either  maximum,  minimum  or  absolute 
The  power  to  prescribe  a  rate  was  conferred  by  the  amendment  of  June  29,  1S>06, 
and  that  amendment  extended  the  provisions  of  the  act  for  the  first  time  to  intra- 
territorial  commerce.  The  amendment  made  the  act  completely  comprehensive  of 
the  whole  subject,  and  entirely  superseded  the  minor  authority  which  had  been 
conferred  upon  the  secretary  of  the  interior.^^*^ 

478-64a.      Express     companies. — Ameri-  in    the    transportation    of    passengers    or 

can  Exp.  Co.  V.  United  States,  212  U.   S.  property   from    one    state    or   territory   of 

522,  531,  53  L-  Ed.  635,  29  S.  Ct.  315.  the   United   States   to   any   other   state    or 

478-64b.     Carriers    by    water    on    Great  territory,  or  from  one  place  in  a  territory 

Lakes.— Interstate       Commerce       Comm.  to    another    place    in    the    same    territory. 

V    Goodrich  Transit  Co.,  224  U.  S.  194,  56  Interstate  Commerce  Comm.  v.  Humboldt 

L.    Ed.    729,   32    S.    Ct.   436.  Steamship     Co.,      224     U.     S.      474,     56     L. 

478-640.    Carriers  in  the  territories. — In-  Ed.   849,   32   S.    Ct.   556. 
terstate    Commerce    Comm.    i.    Humboldt  The    authority   of   the    secretary   of   the 

Steamship    Co.,   224   U.    S.   474,   56   L.    Ed.  mterior    to    review    and    modify    railwaj- 

849,  32  ?.  Ct.  556.  rates    in    Alaska    conferred    upon   him   by 

478-64d.    Same — Powers  of  secretary  of  the   Act  of   IMay   14,   1898    (30   Stat,  at  L. 

interior      superseded. — Interstate        Com-  409,  chap.  299,  U.  S.  Comp.  Stat.  1901,  p. 

merce  Comm.  v.  Humboldt  Steamship  Co.,  1576),  §  2,  was  superseded  by  the  amend- 

224  U.  S.  474,  56  L-  Ed.  849,  32  S.  Ct.  556.  ment   of  June   29,    1906,   to   the    Interstate 

Statute  held  applicable  to  Alaska. —  Commerce  Act,  which  gave  to  the  inter- 
Alaska  is  a  territory'  of  the  United  States  state  commerce  commission  the  power  to 
within  the  meaning  of  the  Act  of  June  prescriljc  rates,  and  extended  the  pro- 
29,  1906  (34  Stat,  at  L.  584,  chap.  3591,  visions  of  the  act  to  intraterritorial  com- 
U.  S.  Comp.  Stat.  Supp.  1909,  p.  1150),  merce.  Interstate  Commerce  Comm.  v. 
extending  the  provisions  of  the  Inter-  Humboldt  Steamship  Co.,  224  U.  S.  474, 
state  Commerce  Act  to  carriers  engaged  56  L.  Ed.  849,  32  S.  Ct.  556. 

757 


479-480 


INTBRSTATB,  ETC.,  COMMERCE. 


Vol.  VII. 


3.   Terms  "Railroad"  and  "Transportation"  Defined. — See  note  68. 

C.    Just  and  Reasonable  Charges — 1.    In  Ge^neral. — See  note  69. 

3.  Power  to  PrKscribe  Rates. — Under  the  original  act  it  was  held  in  the  maxi- 
mum rate  cases'^^^  that  congress  had  not  conferred  upon  the  interstate  commerce 
commission  the  legislative  power  to  prescribe  rates,  either  maximum,  minimum  or 
absolute.  But  the  power  to  prescribe  rates  was  conferred  by  the  amendment  of 
June  29,  1906,  and  that  amendment  extended  the  provisions  of  the  act  for  the  first 
time  to  intraterritorial  commerce.  Under  the  amended  act  therefore,  rates  may 
not  only  be  investigated  and  be  pronounced  unjust  or  unreasonable  or  discrimina- 
tory, but  other  rates  may  be  prescribed.'^'*'' 

Conditioned  upon  Want  of  Reasonable  and  Satisfactory  Route,  etc.— 
The  authority  of  the  commission  to  establish  through  routes  and  joint  rates  is  con- 
ditioned by  the  proviso  that  "no  reasonable  or  satisfactory  through  route  exists." 
(Act  of  June  29,  1906,  chap.  3591,  §  4,  34  Stat,  at  L.  589,  U.  S.  Comp.  Stat.  Supp. 
1909,  p.  1158.)  This  condition  is  not  addressed  solely  to  the  opinion  of  the  com- 
mission, but  may  be  re-examined  by  the  courts  as  a  jurisdictional  fact.'''"*'' 


479-68.  "Transportation." — Transporta- 
tion within  the  meaning  of  the  Interstate 
Commerce  Act  means  not  only  the  physi- 
cal instrumentalities,  but  all  services  in 
connection  with  receipt,  delivery,  and 
handling  of  property  transported.  South- 
ern R.  Co.  V.  Reid,  222  U.  S.  424,  56  L. 
Ed.  257,  32   S.   Ct.   140. 

Elevation  of  grain. — "The  long  mooted 
question  as  to  whether  elevation  was  such 
a  part  of  transportation  as  to  bring  it 
within  the  jurisdiction  of  the  interstate 
commerce  commission  was  answered  by 
the  Act  of  June  29,  1906  (34  Stat,  at  L. 
584,  590,  chap.  3591,  U.  S.  Comp.  Stat. 
Supp.  1909,  p.  1150),  in  which  congress 
declared  that  the  term  'transportation' 
shall  include  *  *  *  all  *  *  *  facilities  of 
shipment,  *  *  *  irrespective  of  ownership, 

*  *  *  and  all  services  in  connection  with 
the  *  *  *  elevation  and  transfer  in  transit 

*  *  *  and  handling  of  property  trans- 
ported." Carriers  were  required  "to  pro- 
vide and  furnish  such  transportation  upon 
reasonable  request  therefor."  Union  Pac. 
R.  Co.  7'.  Updike  Grain  Co.,  222  U.  S.  215, 
56    L.    Ed.    171,    32    S.    Ct.    39. 

479-69.  Just  and  reasonable  charges — 
Power  of  commission  to  determine. — The 
commission  is  the  tribunal  that  is  in- 
trusted with  the  execution  of  the  inter- 
state commerce  laws,  and  has  been  given 
very  comprehensive  powers  in  the  in- 
vestigation of  and  determination  of  the 
proportion  which  the  rates  charged  shall 
bear  to  service  rendered,  and  this  power 
exists,  whether  the  system  of  rates  be 
old  or  new.  If  old,  interests  will  have 
probably  become  attached  to  them,  and, 
it  may  be,  will  be  disturbed  or  disordered 
if  they  be  changed.  Such  circumstance 
is,  of  course,  proper  to  be  considered,  and 
constitutes  an  element  in  the  problem  of 
regulation,  but  it  does  not  take  jurisdic- 
tion away  to  entertain  and  attempt  to  re- 
solve the  problem.  Interstate  Commerce 
Comm.  V.  Chicago,  etc.,  R.  Co.,  218  U.  S. 
88,  54  L.  Ed.  946,  30  S.  Ct.  651. 


480-74a.  Power  to  prescribe  rates — 
Maximum  rates  cases. — Cincinnati,  etc., 
R.  Co.  t'.  Interstate  Commerce  Comm., 
162  U.  S.  184,  40  L.  Ed.  935,  16  S.  Ct.  700; 
Interstate  Commerce  Comm.  v.  Cincin- 
nati, etc.,  R.  Co.,  167  U.  S.  479,  42  L.  Ed. 
243,  17  S.  Ct.  896;  Interstate  Commerce 
Comm.  V.  Alabama  Mid.  R.  Co.,  168  U.  S. 
144,    42    L.    Ed.    414,    18    S.    Ct.    45. 

480-74b.  Same — Under  the  amended  act. 
— Interstate  Commerce  Comm.  v.  Hum- 
boldt Steamship  Co.,  224  U.  S.  474,  56  L. 
Ed.  849,  32  S.  Ct.  556;  Interstate  Comm.erce 
Com.  V.  Chicago,  etc.,  R.  Co.,  218  U.  S. 
88,  54  L.  Ed.  946,  30  S.  Ct.  651;  Southern 
Pac.  R.  Co.  V.  Interstate  Commerce 
Comm'.,  219  U.  S.  433,  55  L.  Ed.  283,  31 
S.  Ct.  288;  Interstate  Commerce  Comm. 
V.  Illinois,  etc.,  R.  Co.,  215  U.  S.  452,  478, 
54  L.  Ed.  280,  30  S.  Ct.  155;  Interstate 
Commerce  Comm.  v.  Northern  Pac.  R. 
Co.,  216  U.  S.  538,  54  L.  Ed.  608,  30  S. 
Ct.  417;  Interstate  Commerce  Comm.  v. 
Chicago,  etc.,  R.  Co.,  209  U.  S.  108,  52  E. 
Ed.    705,    28    S.    Ct.    493. 

480-74C.  Conditioned  upon  want  or  rea- 
sonable and  satisfactory  route. — Inter- 
state Commerce  Comm.  i'.  Northern  Pac. 
R.  Co.,  216  U.  S.  538,  54  L.  Ed.  608,  30  S. 
Ct.  417;  Interstate  Commerce  Comm.  v. 
Illinois,  etc.,  R.  Co.,  215  U.  S.  452,  478,  54 
L.  Ed.  280,  30  S  Ct.  155;  Interstate  Com- 
merce Comm.  V.  Chicago,  etc.,  R.  Co.,  218 
U.  S.  88,  54  L.  Ed.  946,  30  S.  Ct.  651; 
Southern  Pac.  Co.  z'.  Interstate  Commerce 
Comm.,  219  U.  S.  433,  55  L.  Ed.  283,  31 
S.  Ct.  288.  See,  also,  as  to  judicial  re- 
view, post,  "Weight  and  Conclusiveness 
of  Findings  of  Commission,"   IV,   K,  2,  f. 

If  a  complaint  is  made  to  the  inter- 
state commerce  commission  concerning 
the  unreasonableness  of  a  rate,  that  body 
has  the  authority  to  examine  the  sub- 
ject, and,  if  it  finds  the  rate  complained 
of  is,  in  and  of  itself,  unreasonable,  hav- 
ing regard  to  the  service  rendered,  to 
order  the  desisting  from  charging  such 
rate,  and  to  fix  a  new  and  reasonable  rate 


758 


Vol.  MI. 


INTERSTATE,  ETC.,  COMMERCE. 


481 


Right  of  Carrier  to  Prescribe  Rate  in  First  Instance. — See  note  75. 

4.  DETERMINATION  OF  QUESTION  OF  Reasonabi^eness  AND  JUSTICE — c.  In- 
terests to  Be  Considered. — In  General. — From  whatever  standpoint  the  powers 
of  the  interstate  commerce  commission  may  be  viewed,  they  touch  many  interests, 
they  may  have  great  consequences.  They  are  expected  to  be  exercised  in  the 
coldest  neutrality.  The  commission  was  instituted  to  prevent  discrimination  be- 
tween persons  and  places.  It  would  indeed  be  an  abuse  of  its  powers  to  exerci.se 
them  so  as  to  cause  either.  Therefore,  the  outlook  of  the  commission  and  its 
powers  must  be  greater  than  the  interest  of  the  railroads  or  of  that  which  may 
affect  those  interests.  It  must  be  as  comprehensive  as  the  interest  of  the  whole 
country,  and  if  the  problems  which  are  presented  to  it  are  complex  and  difficult, 
the  means  of  solving  them  are  as  great  and  adequate  as  can  be  provided." ^^ 

Interests  of  Particular  Cities  or  Communities — Trade  Zones. — As  stated 
in  the  preceding  paragraph,  the  commission  was  instituted  to  prevent  discrimina- 
tion between  persons  and  places,  and  it  is  expected  to  exercise  its  powers  in  the 
coldest  mutuality.  It  would  be  an  abuse  of  its  powers  to  exercise  them  so  as  to 
cause  either."^'' 

Industries  Dependent  upon  Rates. — If  the  rates  are  old,  interests  will 
have  probably  become  attached  to  them,  and  it  may  be  that  such  interest  will  be 
disturbed  or  disordered  if  the  rates  be  changed.     Such  circumstance  is,  of  course. 


to  be  operative  for  a  period  of  two  years. 
Southern  Pac.  Co.  v.  Interstate  Com- 
merce Comm.,  219  U.  S.  433,  55  L.  Ed.  283, 
31   S.    Ct.   28S. 

481-75.  Right  to  carrier  to  prescribe 
rate  in  first  instance. — It  must  be  remem- 
bered that  railroads  are  the  private  prop- 
erty of  their  owners;  that  while,  from  the 
public  character  of  the  work  in  which 
they  are  engaged,  the  public  has  the 
power  to  prescribe  rules  for  securing 
faithful  and  efficient  service  and  equality 
between  shippers  and  communities,-  yet. 
in  no  proper  sense,  is  the  public  a  gen- 
eral manager.  As  said  in  Interstate  Com- 
merce Comm.  V.  Alabama  Mid.  R.  Co.. 
168  U.  S.  144,  172,  42  L.  Ed.  414,  18  S. 
Ct.  45,  quoting  from  the  opinion  in  5 
Inters.  Com.,  kep.  697,  21  C.  C.  A.  59, 
41  U.  S.  App.  466,  74  Fed.  723:  "Subject  to 
the  two  leading  prohibitions  that  their 
charges  shall  not  be  unjust  or  unreason- 
able, and  that  they  shall  not  unjustly  dis- 
criminate so  as  to  give  undue  preference 
or  disadvantage  to  persons  or  traffic 
similarly  circumstanced,  the  act  to  regu- 
late commerce  leaves  common  carriers  as 
they  were  at  the  common  law,  free  to 
make  special  rates  looking  to  the  increase 
of  their  business,  to  classify  their  traffic, 
to  adjust  and  apportion  their  rates  so  as 
to  meet  the  necessities  of  commerce  and 
of  their  own  situation  and  relation  to  it, 
and  generally  to  manage  their  important 
interests  upon  the  same  principles  which 
are  regarded  as  sound  and  adopted  in 
other  trades  and  pursuits."  Interstate 
Commerce  Comm.  v.  Chicago,  etc.,  R.  Co., 
209  U.  S.  108,  52  L.  Ed.  705,  28  S.  Ct.  493. 

Railway  companies  may  contract  with 
shippers  for  a  single  transportation  or  for 
successive  transportations,  subject  to  a 
change  of  rates  in  the  manner  provided  in 


the  interstate  commerce  act.  Judgment 
(C.  C.  1905),  141  F.  1003,  affirmed.  In- 
terstate Commerce  Comm.  v.  Chicago, 
etc.,  R.  Co.,  209  U.  S.  108,  52  L.  Ed.  705, 
28  S.   Ct.  493. 

481-79a.  Interest  to  be  considered — In 
general. — Interstate  Commerce  Comm.  v. 
Chicago,  etc.,  R.  Co..  218  U.  S.  88,  54  L. 
Ed.  946,  30  S.  Ct.  651;  Interstate  Com- 
merce Comm.  V.  Illinois,  etc.,  R.  Co.,  215 
U.   S.  452,  478,  54  L.   Ed.  280,  30  S.  Ct.  155. 

481-79b.  Interests  of  particular  cities  of 
communities  —  Trade  zones. — Interstate 
Commerce  Comm.  v.  Chicago,  etc.,  R.  Co., 
218  U.  S.  88,  54  L.  Ed.  946^  30  S.  Ct.  651; 
Interstate  Commerce  Comm.  v.  Illinois, 
etc.,  R.  Co.,  215  U.  S.  452,  478,  54  L.  Ed. 
280,  30   S.   Ct.   155. 

A  reduction  in  that  part  of  the  through 
rates  on  Atlantic  seaboard  shipments  to 
Missouri  river  cities  which  applies  to  the 
haul  betvv^een  the  Mississippi  and  Missouri 
rivers  is  not  beyond  the  power  of  the  in- 
terstate commerce  commission,  as  in- 
troducing a  new  system  of  rate  making 
by  artificially  apportioning  the  country 
into  zones  tributary  to  given  trade  cen- 
ters, in  order  to  build  up  or  protect  cer- 
tain distributing  centers  at  the  expense  of 
others  where  the  commission,  by  its  or- 
der, intended  only  to  correct  through 
rates  which  it  found  upon  complaint  were 
unreasonable  in  themselves,  by  substitut- 
ing therefor  reasonable  rates.  Intc-state 
Commerce  Comm.  v.  Chicago,  etc.,  R.  Co., 
218  U.  S.  88.  54  L.  Ed.  946,  30  S.  Ct.  651; 
Interstate  Commerce  Comm.  v.  Chicago, 
etc.,  R.  Co.,  218  U.  S.  113,  54  L.  Ed.  959, 
30  S.  Ct.  660.  reversing  decrees  Chicago, 
R.  I.  &  P.  P.  Ry.  Co.  V.  Interstate  Com- 
merce Commission  (C.  C.  1909),  171  F. 
680. 


759 


481 


INTERSTATB,  ETC.,  COMMERCE. 


Vol.  VII. 


proper  to  be  considered,  and  constitutes  an  element  in  the  problem  of  regulation, 
but  it  does  not  take  jurisdiction  away  to  entertain  and  attempt  to  solve  the  prob- 
lem J  ^"^  On  the  other  hand,  the  order  of  the  commission  is  void,  where  it  mani- 
fests that  that  body  did  not  merely  exert  the  power  conferred  by  law  to  correct 
an  unjust  and  unreasonable  rate,  but  that' it  made  the  order  which  is  complained 
of  upon  the  theory  that  the  power  was  possessed  to  set  aside  a  just  and  reasonable 
rate  lawfully  fixed  by  a  railroad  whenever  the  commission  deemed  that  it  would 
be  equitable  to  shippers  in  a  particular  district  to  put  in  force  a  reduced  rateJ^*^ 

With  Respect  to  Long  and  Short  Hauls. — Fixing  rates  under  substantially 
similar  traffic  conditions  so  as  to  allow  a  higher  rate  for  a  shorter  route  is  not  so 
palpably  unjust  and  unreasonable  to  the  carriers  as  to  be  beyond  the  substance,  if 
not  beyond  the  form,  of  the  power  of  the  interstate  commerce  commission,  where 
the  commission  was  simply  maintaining  the  same  ratio  of  difference  as  that  made 
by  the  carriers  themselves."^*' 

Income  and  Dividends. — If  the  carrier's  total  income  enables  it  to  declare 
a  dividend,  that  would  not  justify  an  order  requiring  it  to  haul  one  class  of  goods 
for  nothing,  or  for  less  than  a  reasonable  rate.  On  the  other  hand,  if  the  carrier 
earned  no  dividend,  it  would  not  have  warranted  an  order  fixing  an  unreasonably 
high  rate  on  such  article."  ^^ 

Personal  Preferences  of  Traveling  Public. — If  a  reasonable  and  satisfac- 
tory through  route  exists,  the  commission  can  not  establish  a  second  such  route 
partly  over  the  same  road  and  partly  over  different  and  competing  roads,  merely 
because  the  public  would  prefer  such  second  route,  where  the  result  of  its  estab- 
lishment would  be  to  place  the  competing  lines  on  an  equal  footing  with  the  other 
company  as  to  the  use  of  a  portion  of  its  route  and  at  the  same  time  divert  from 
its  route  a  large  portion  of  its  existing  patronage."^° 


481-79C.  Industries  dependent  upon 
rates. — Interstate  Commerce  Comm.  v. 
Chicago,  etc.,  R.  Co.,  218  U.  S.  88,  54  L. 
Ed.    94G.   30    S.    Ct.    651. 

481-79d.  Same — Reasonable  rate  not  to 
be  changed  to  protect  certain  interests. — 
Southern  Pac.  Co.  z\  Interstate  Com- 
merce Comm.,  219  U.  S.  433,  55  L.  Ed. 
283,    31    S.    Ct.    288. 

An  order  of  the  interstate  commerce 
commission  setting  aside  new  rates  on 
lumber  from  Willamette  Valley  points  to 
San  Francisco  and  bay  points,  and  re- 
storing substantially  the  old  rates,  is  void 
as  beyond  its  powers,  where,  from  the 
record  and  the  opinion  of  the  commission, 
and  from  the  express  exclusion  of  Port- 
land from  the  benefit  of  the  reduced  rate, 
and  the  reasons  assigned  for  such  ex- 
clusion, it  is  clear  that  the  commission 
was  not  exercising  its  authority  to  con- 
demn unjust  and  unreasonable  rates  and 
fix  reasonable  ones,  but  was  acting  upon 
the  assumption  that  it  had  the  right  to 
protect  the  lumber  interests  from  the 
consequences  of  a  change  in  rates,  even 
if  the  change  was  from  a  rate  which  had 
been  fixed  unreasonably  low,  for  the  pur- 
pose of  encouraging  the  industry,  to  a 
higher  rate  which  is  not  in  itself  unjust 
or  unreasonable.  Southern  Pac.  Co.  v. 
Interstate  Comm.,  219  U.  S.  433,  55  L.  Ed. 
283,  31  S.  Ct.  288,  reversing  decree  (C.  C. 
1910),  177  F.  963. 

The  interstate  commerce  commission 
can  not  be  said  to  have  ordered  a  reduc- 


tion in  the  rates  on  lumber  because  of 
the  effect  upon  the  lumber  industry  of 
the  carriers'  action  in  advancing  the  rates, 
where,  although  the  commission  con- 
sidered that  subject,  its  opinion,  taken  as 
a  whole,  affirmatively  shows  that  it  con- 
fined itself  to  the  exercise  of  its  statutory 
power  to  condemn  unjust  and  unreason- 
able rates  and  fix  reasonable  ones.  In- 
terstate Commerce  Comm.  v.  Union  Pac. 
R.  Co.,  222  U.  S.  541,  56  L.  Ed.  308,  32  S. 
Ct.  108. 

481-79e.  With  respect  to  long  and  short 
hauls. — Interstate  Commerce  Comm.  v. 
Union  Pac.  R.  Co.,  222  U.  S.  541,  56  L. 
Ed.  308,  32   S.  Ct.  108. 

When  the  commission  maintained  the 
same  ratio  of  difference  between  Omaha 
and  St.  Paul  as  that  made  by  the  carriers 
themselves,  it  can  not  be  fairly  said  that 
such  an  order  was  so  arbitrary  as  to  be 
palpably  and  gravely  unjust,  and  beyond 
the  substance,  if  not  the  form,  of  its 
oower.  Interstate  Commerce  Comm.  v. 
"Union  Pac.  R.  Co.,  222  U.  S.  541,  56  L. 
Ed.   308,  32   S.   Ct.   108. 

481-79f.  Income  and  dividends. — Inter- 
state Commerce  Comm.  v.  Union  Pac.  R. 
Co.,  222  U.  S.  541,  56  L.  Ed.  308,  32  S.  Ct. 
108. 

481-79g.  Personal  preferences  of  travel- 
ing public. — Interstate  Commerce  Comm. 
V.  Northern  Pac.  R.  Co.,  216  U.  S.  538, 
54    L.    Ed.    608,    30    S.    Ct.    417. 

The  personal  preferences  of  many 
travelers    for    a    southern    route    between 


760 


Vol.  VII. 


INTERSTATE,  ETC.,  COMMERCE. 


482-483 


e.    Permanent  Improvements  and  Equipments. — See  note  81. 

5.   Terminal  Charges. — See  note  'lil. 

D.  Special  Rates,  Rebates,  etc..  Prohibited — 1.  Unjust  Discrimina- 
tions IN  Rates  Generally — z.]/^.  Constitutionality  of  Statute — (1)  General 
Power  of  Congress. — There  can  be  no  question  as  to  the  power  of  congress  to  reg- 
ulate interstate  commerce  to  prevent  favoritism  and  to  secure  equal  rights  to  all 
engaged  in  interstate  trade,  and  to  this  end  congress  had  the  constitutional  power 
to  adopt  a  policy  looking  to  the  equality  of  rates  to  shippers  over  interstate  car- 
riers, and  to  prescribe  appropriate  means  to  give  it  effect.^^"^ 

(2)  Making  Principal  Liable  for  Acts  of  His  Agent. — There  can  be  no  ques- 
tion as  to  the  power  of  congress  to  control  those  who  are  conducting  interstate 
commerce  by  holding  them  responsible  for  the  intent  and  purposes  of  the  agents 
to  whom  they  have  delegated  the  power  to  act  in  the  premises,  and  such  provision 
of  the  statute  is  not  unconstitutional  upon  the  theory  that  it  attributes  the  act  of 
the  agent  to  his  principal,  thereby  making  one  person  responsible  for  the  crime  of 
another,  and  thus  depriving  him  of  due  process  of  law  and  of  the  presumption  of 
innocence  which  the  law  raises  in  his  favor.-*'" 


eastern  points  and  points  on  the  Northern 
Pacific  Railway  between  Portland  and 
Seattle  do  not  make  the  through  route 
via  the  Northern  Pacific  Railway  unrea- 
sonable or  unsatisfactory,  so  as  to  justify 
the  interstate  commerce  commission  in 
the  exercise  of  its  power  under  Act  June 
29,  1906,  c.  3591,  34  Stat.  584  (U.  S.  Comp. 
St.  Supp.  1909,  p.  1149),  to  establish 
through  routes  and  joint  rates  where  "no 
reasonable  or  satisfactory  through  route 
exists,"  in  ordering  the  establishment  of 
through  rates  and  joint  rates  between 
those  points  via  the  Union  Pacific  Rail- 
way, so  as  to  put  the  latter  road  on  an 
equal  footing  with  the  Northern  Pacific 
Railway  Company  in  the  use  for  through 
travel  of  the  road  belonging  to  the  latter 
between  Portland  and  Seattle.  Interstate 
Commerce  Comni.  z>.  Northern  Pac.  R. 
Co.,  216  U.  S.  538,  54  L.  Ed.  608,  30  S.  Ct. 
417. 

The  commission  had  no  power  to  make 
the  order  if  a  reasonable  and  satisfactory 
through  route  already  existed,  and  the  ex- 
istence of  such  a  route  may  be  inquired 
into  by  the  courts.  Interstate  Commerce 
Comm.  7'.  Northern  Pac.  R.  Co.,  216  U. 
S.   538,  54  L.   Ed.  608,  30  S.   Ct.  417. 

482-81.  Permanent  improvements  and 
equipment. — Expenditures  for  permanent 
improvements  and  equipment  should  not 
be  charged  to  the  current  or  operating 
expenses  of  a  single  year  for  the  purpose 
of  testing  the  reasonableness  of  an  in- 
creased freight  rate.  Illinois  Cent.  R.  Co. 
v.  Interstate  Commerce,  206  U.  S.  441,  51 
L.   Ed.   1128,   27   S.   Ct.  700. 

482-82.  Terminal  charges — Separation 
of  terminal  and  freight  charges. — A 
terminal  charge  for  delivering  car  loads 
of  live  stock  to  the  Union  Stock  Yards  in 
Chicago,  a  point  beyond  the  carrier's  line, 
if  in  itself  just  and  reasonable,  and  sepa- 
rately stated  in  the  tariff  schedules,  as  re- 
quired   by    the  Act  of    June  29,    1906    (34 


Stat,  at  L.  584,  chap.  3591,  U.  S.  Comp, 
Stat.  Supp.  1907,  p.  892;,  §  2,  can  not  be 
condemned  or  the  carrier  required  to  re- 
duce it,  on  the  ground  that  it,  taken  with 
prior  charges  or  transportation  over  the 
lines  of  the  carrier,  or  of  connecting  car- 
riers, makes  a  total  charge  to  the  ship- 
per unreasonable.  Interstate  Commerce 
Comm.  V.  Stickney,  215  U.  S.  98,  54  L.  Ed. 
112,   30   S.   Ct.   66. 

That  which  must  be  corrected  and  con- 
demned is  not  the  just  and  reasonable 
terminal  charge,  but  those  prior  charges 
which  must  of  themselves  be  unreason- 
able in  order  to  make  the  aggregate  of 
the  charge  from,  the  point  of  shipment  to 
that  of  delivery  unreasonable  and  unjust. 
Interstate  Commerce  Comm.  v.  Stickney, 
215   U.  S.  98,  54  L.  Ed.  112,  30  S.  Ct.  66. 

In  order  to  avail  itself  of  the  benefit  of 
this  rule,  the  carrier  must  separately  state 
its  terminal  or  other  special  charge  com- 
plained of;  for,  if  many  matters  are 
lumped  in  a  single  charge,  it  is  impossible 
for  either  shipper  or  commission  to  de- 
termine how  much  of  the  lump  charge  is 
for  the  terminal  or  special  services.  In- 
terstate Commerce  Comm.  v.  Stickney,  21 S 
U.   S.   98,   54  L.   Ed.   112,   30   S.   Ct.   66. 

483-86a.  Constitutionality  of  statute — 
In  general. — Louisville,  etc.,  R.  Co.  v. 
Mottley,  219  U.  S.  467.  55  L.  Ed.  297,  31 
S.  Ct.  265;  New  York,  etc.,  R.  Co.  v. 
United  States,  212  U.  S.  481,  496,  53  L.  Ed. 
613,  29  S.  Ct.  304.  See,  also,  ante,  "Con- 
stitutionality."   IV,   A,   2. 

483-86b.  Making  principal  liable  for  the 
acts  of  his  agent. — New  York,  etc.,  R.  Co. 
V.  United  States,  213  U.  S.  481.  496.  53 
L.  Ed.  613,  29  S.  Ct.  301.  See,  also,  ante, 
"Constitutionality,"    IV,    A.    2. 

The  act  of  the  agent  of  a  corporation 
engaged  in  interstate  commerce  while  ex- 
ercising the  authority  delegated  to  him 
to  make  rates  for  transportation,  may  be 
controlled,  in  the  interest  of  public  policy. 


761 


483 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


(3)  Who  May  Raise  Constitutional  Objections. — See  ante,  "Constitutionality," 
IV,  A,  2. 

(4)  Separability  of  Statute.— Even  if  this  section  of  the  Elkins  law  were  un- 
constitutional as  applied  to  individuals  engaged  in  the  business  of  interstate  car- 
riage, it  must  still  be  sustained  as  to  corporate  carriers,  since  every  act  is  to  be  con- 
strued so  as  to  maintain  its  constitutionality  if  possible,  and  the  valid  provisions 
thereof  upheld  unless  they  are  so  interblended  with  the  invalid  ones  that  the  whole 
must  stand  or  fall  together,  and  in  this  case  there  can  be  no  question  that  congress 
would  have  applied  these  provisions  to  corporation  carriers,  whether  individuals 
were  included  or  not.    In  this  view  the  act  is  valid  as  to  corporations.'^^'' 

a>^.  Purpose,  Construction,  Operation  and  Effect  of  Statute — (1)  General 
Purpose  of  Statute. — The  objects  of  the  Elkins  law  are  to  prevent  favoritism  and 
to  secure  equal  rights  to  all  in  interstate  transportation,  and  one  legal  rate,  to  be 
published  and  posted  so  as  to  be  open  to  public  inspection  and  accessible  to  all 
alike ;  to  prohibit  and  punish  secret  departures  from  the  published  rates,  and  to 
prevent  and  punish  rebating,  preferences  and  all  acts  of  undue  discrimination ; 
and  this  without  regard  to  whether  persons  or  places  be  the  sufferers.'^'^'* 

(2)  Paramount  in  Its  O/'^raliow.— Transactions  to  which  this  act  relates  being 
interstate  in  their  character,  the  act  is  of  paramount  operation,  and  no  state  enact- 
ment can  be  of  any  avail,  since  the  subject  has  been  covered  by  an  act  of  congress, 
acting  within  the  limits  of  its  constitutional  powers.*^*"" 


by  imputing  his  act  to  his  employer  and 
imposing  penalties  upon  the  corporation 
for  which  he  is  acting  in  the  premises. 
New  York,  etc.,  R.  Co.  f.  United  States, 
212  U.  S.  481,  494,  53  L.  Ed.  613,  29  S.  Ct. 
304. 

It  is  true  that  there  are  some  crimes, 
which  in  their  nature  can  not  be  com- 
mitted by  corporations.  But  there  is  a 
large  class  of  ofifenses,  of  which  rebating 
under  the  federal  statutes  is  one,  wherein 
the  crime  consists  in  puiposely  doing  the 
things  prohibited  by  statute.  In  that  class 
of  crimes  corporations  may  be  held  re- 
sponsil)Ie  for  and  charged  with  the  knowl- 
edge and  purposes  of  their  agents,  acting 
within  the  authority  conferred  upon  them. 
New  York,  etc.,  R.  Co.  z'.  United  States, 
212  U.  S.  481,  494,  53  L.  Ed.  613,  29  S.  Ct. 
304. 

Due  process  of  law  is  not  denied  by 
the  provisions  of  the  Elkins  Act  of  Feb- 
ruary 19,  1903  (32  Stat,  at  L.  847,  chap. 
708,  U.  S.  Comp.  Stat.  Supp.  1907,  p.  880), 
under  which  the  commission  by  corporate 
officers,  acting  within  the  scope  of  their 
employment,  of  criminal  violations  of  the 
prohibitions  of  that  act  against  giving  re- 
bates, is  imputed  to  the  corporation,  and 
the  corporation  is  subjected  to  criminal 
prosecution  therefor.  New  York,  etc.,  R. 
Co.  V.  United  States,  212  U.  S.  481,  53  L. 
Ed.   613,   29    S.    Ct.    304. 

483-86C.  Separability  of  statute. — New 
York,  etc.,  R.  Co.  v.  United  States,  212  U. 
S.  481,  53  L.  Ed.  613,  29  S.  Ct.  304,  citing 
Berea  College  v.  Kentucky,  211  U.  S.  45, 
55,  53  L.  Ed.  81,  29  S.  Ct.  33,  and  The  Em- 
ployers' Liability  Cases,  207  U.  S.  463,  52 
L.    Ed.   297,   28    S.    Ct.    141. 


483-86d.    General  purpose   of  statute. — • 

New  York,  etc.,  R.  Co.  v.  United  States, 
212  U.  S.  481,  495,  53  L.  Ed.  613,  29  S.  Ct. 
304;  New  York,  etc.,  R.  Co.  v.  Interstate 
Commerce  Comm.,  200  U.  S.  361,  399,  50 
L.  Ed.  515,  26  S.  Ct.  272;  Armour  Packing 
Co.  V.  United  States,  209  U.  S.  56,  52  L. 
Ed.  681,  28  S.  Ct.  428;  American  Exp.  Co. 
V.  United  States,  212  U.  S.  522,  531,  53  L. 
Ed.  635.  29  S.  Ct.  315;  Interstate  Com- 
merce Comm.  V.  Chicago,  etc.,  R.  Co.,  218 
U.  S.  88,  54  L.  Ed.  946,  30  S.  Ct.  651;  In- 
terstate Commerce  Comm.  v.  Illinois,  etc., 
R.  Co.,  215  U.  S.  452,  478,  54  L.  Ed.  280, 
30  S.  Ct.  155. 

483-86e.  Paramount  in  its  operation. — 
Chicago,  etc.,  R.  Co.  v.  United  States,  219 
U.  S.  486.  55  L.  Ed.  305,  31  S.  Ct.  272. 

State  law  authorizing  payment  other 
than  in  money. — A  state  statute  authoriz- 
ing a  railway  companj^  incorporated  un- 
der the  laws  of  the  state  to  issue  trans- 
portation in  paym.ent  for  printing  and 
advertising  must  give  way,  so  far  as  inter- 
state transportation  is  concerned,  before 
the  provisions  of  the  act  to  regulate  com- 
merce (Act  Feb.  4,  1887,  c.  104,  24  Stat. 
379  rU.  S.  Comp.  St.  1901,- p.  3154]),  and 
Act  Feb.  19,  1903,  c.  708,  32  Stat.  847  (U. 
S.  Comp.  St.  Supp.  1909,  p.  1138),  and  Act 
June  29,  1906,  c.  3591,  34  Stat.  584  (U.  S. 
Comp.  St.  Supp.  1909.  p.  1149),  amenda- 
tory thereof,  under  wliich  a  carrier  can 
accept  nothing  but  money  in  exchange 
for  interstate  transportation.  Chicago, 
etc.,  R.  Co.  V.  United  States,  219  U.  S. 
486,  55  L.  Ed.  305,  31  S.  Ct.  272,  affirming 
judgment  in  United  States  v.  Chicago,  I. 
&  t.  Ry.  Co.  (C.  C.  1908),  163  F.  114. 


762 


Vol.  MI.  IXTERSTATE,  ETC.,  COMMERCE.  483 

(3j  Jl'lwt  Constitutes  Foreign  or  Interstate  Shipment  zcitlii)i  Meaning  of  Act. 
— Shipments  under  a  through  bill  of  lading  from  an  interior  point  in  the  United 
States  to  a  foreign  port  are  embraced  in  the  provisions  of  the  Elkins  Act  of  Feb- 
ruary 19,  1903,  making  it  an  offense  against  the  United  States  to  obtain  the  trans- 
portation of  property  in  interstate  or  foreign  commerce  at  less  than  the  carrier's 
published  rates.**^' 

(4)  Embraces  All  Manner  of  Carriage,  Gratuitous  or  Otherwise — (a)  Gener- 
ally.— The  power  of  cong-ress  over  interstate  transportation  embraces  all  manner 
of  carriage,  whether  gratuitous  or  otherwise ;  and  except  as  to  the  express  excep- 
tions made  by  the  act  itself,  it  must  be  held  to  have  been  the  intention  of  congress 
to  prevent  a  departure  from  the  published  rates  and  schedules  in  any  manner 
whatsoever.  The  all  embracing  prohibition  against  either  directly  or  indirectly 
charging  was  that  the  published  rates  show  that  the  purpose  of  the  statute  was  to 
make  the  prohibition  applicable  to  every  method  of  dealing  by  which  the  forbid- 
den result  could  be  brought  about.  If  this  were  not  so,  a  wide  door  would  be 
open  to  favoritism  in  the  carriage  of  property  free,  or  partially  free,  of  charge.^^^ 

(b)  Free  Transportation  b\  Express  Companies. — The  proviso  to  the  Hepburn 
Act  June  29,  1906,  c.  3591,  §  1,  34  Stat.  584  (U.  S.  Comp.  St.  Supp.  1907,  p.  892), 
following  language  appertaining  solely  to  the  carriage  of  passengers,  that  its  pro- 
visions shall  not  be  construed  to  prohibit  the  interchange  of  passes  for  the  of- 
ficers, agents,  and  employees  of  common  carriers  and  their  families,  or  to  pro- 
hibit any  carrier  from  carrying  passengers  free  in  certain  cases,  does  not  embrace 
free  transportation  by  express  companies,  although,  by  the  terms  of  that  act,  ex- 
press companies  are  deemed  common  carriers.*^''  In  view  of  the  interpretation 
thus  given  to  the  act  it  can  not  be  doubted  that  the  gratuitous  transportation  of 
property,  upon  franks  issued  by  express  companies,  is  within  the  terms  of  the 
act,  and  that  express  companies  are  prohibited  from  giving  free  transportation  of 
personal  packages  to  their  officers  and  employees  and  members  of  their  families, 
and  to  the  officers  of  other  transportation  companies,  and  members  of  their  fam- 
ilies, in  exchange  for  passes  issued  by  the  latter  to  the  officers  of  the  express  com- 
panies, by  the  Elkins  Act  of  Feb.  19,  1903,  c.  708,  32  Stat.  847  (U.  S.  Comp.  St. 
Supp.  1907,  p.  880),  as  amended  by  the  Hepburn  Act  (Act  June  29,  1906,  c.  3591, 
34  Stat.  584,  587  [U.  S.  Comp.  St.  Supp.  1907,  pp.  892,  898]),  which  forbids  all 
transportation  of  property  at  less  than  the  published  rates. -'^' 

483-86f.    What  constitutes  foreign  or  in-  United  States,  212  U.  S.  522,  53  L.  Ed.  635, 

terstate  shipment  within  meaning  of  act.  29  S.  Ct.  315. 

—Armour   Packing   Co.   r.    United    States,  483-861.    Same.— American    Exp.    Co.    v. 

209  U.  S.  5(3.  52   L.   Ed.  681,  28  S.  Ct.  428;  United  States,  212  U.  S.  522,  532,  53  L.  Ed. 

affirming    judgment    (1907),    153    F.    1,    82  635,  29  S.  Ct.  315,  affirming  United  States 

C.  C.  135;  Chicago,  etc.,  R.  Co.  v.  United  5^,.  Wells-Fargo  Express  Company  (C.  C), 

States,  209   U.   S.   90,   52   L.   Ed.   698,  28   S.  jgl   Fed.  606. 

€t.    439,    affirming    judgment    (C.     C       A.  without   considering  §§  2.   3   of  the   In- 

1907),  157  F.  830      See    also,  ante.     When  terstate    Commerce   Act   of     February      4, 

Protection  Attaches,     I,  A,  4,  a.  ^ggg^  ^    ^^^^^  24   Stat.   379,  prohibiting  ex- 

483-86g.    Embraces   all  manner   of   car-  press   companies   from   giving  free   trans- 

riage,  gratuitous  or  otherwise — Generally.  portation  of  personal  packages  to  officers 

— American  Exp.  Co.  z\  United  States,  212  ^^id    employees    and     members      of      their 

U.  S.  522,  533,  53  L.  Ed.  635,  29  S.  Ct.  315;  famihes  and  to  officers  of  other  transpor- 

United  States  v.   Xew  York,  etc.,  R.   Co.,  tation    companies    and    members    of   their 

212  U.  S.  509,  53  L.  Ed.  629,  29  S.  Ct.  313;  families  in  exchange  for  passes  issued  by 

Louisville,  etc.,  R.  Co.  v.  Mottley,  219  U.  the    latter   to   the    officers   of   the   express 

S.  467,  55  L.  Ed.  297,  31  S.  Ct.  265;  New  companies,  it  is  held  that  such  practice  is 

York,  etc.,  R.  Co.  v.  Interstate  Commerce  forbidden    by    §    1     of      Elkins      law      as 

Conim.,  200  U.  S.  361,  50  L.  Ed.  515,  26  S.  amended  by  the  Hepburn  Act  of  June  29, 

Ct.  272.     See,  also,  ante,  "All  Commercial  1906,  c.  3591,  34  Stat.  584-587,  and  that  an 

Intercourse."  II,  A,  1,  b,  (3),  (a),  aa.  injunction   to  restrain   the   giving   of  such 

483-86h.     Free    transportation     by      ex-  free    transportation    is    authorized    under 

press   companies.— .\merican    Exp.    Co.  v.  §  3  of  the  Elkins  law.     American  Exp.  Co. 

763 


483  IXTERSTATE,  ETC.,  COMMERCE.  \'o\.  VII. 

(5)  Special  Contracts  JVaiving,  Modifying,  or  Annulling  Provisions  of  Act. — 
There  is  no  provision  excepting  special  contracts  from  the  operation  of  the  law. 
One  rate  is  to  be  charged,  and  that  the  one  fixed  and  published  in  the  manner 
pointed  out  in  the  statute,  and  subject  to  change  in  the  only  way  open  by  the  stat- 
ute. There  is  no  provision  for  the  filing  of  contracts  with  shippers,  and  no  method 
of  making  them  public  defined  in  the  statute.  If  the  rates  are  subject  to  secret 
alteration  by  special  agreement,  then  the  statute  will  fail  of  its  purpose  to  estab- 
lish a  rate  duly  published,  known  to  all,  and  from  which  neither  shipper  nor  car- 
rier may  depart. ^^^ 

(6)  Existing  Contracts  Laziful  When  Made. — [Manifestly,  from  the  face  of 
the  commerce  act  itself,  congress,  before  taking  final  action,  considered  the  ques- 
tion as  to  what  exceptions,  if  any,  should  be  made  in  respect  of  the  prohibition  of 
free  tickets,  free  passes,  and  free  transportation.  It  solved  the  question  when, 
without  making  any  exceptions  of  existing  contracts,  it  forbade  by  broad,  explicit 
words  any  carrier  to  charge,  demand,  collect,  or  receive  "a  greater  or  less  or  dif- 
ferent compensation"  for  any  services  in  connection  with  the  transportation  of 
passengers  or  property  than  was  specified  in  its  published  schedules  of  rates ;  and 
the  courts  can  not  add  exceptions  based  on  equitable  grounds  when  congress  for- 
bore to  make  such  exceptions.^^'^  It  follows,  therefore,  that  there  is  no  vested 
right  in  the  shipper  or  in  the  carrier  to  have  an  agreement  for  free  or  reduced 
transportation  or  for  rebates  consummated  by  the  payment  of  the  rebate  arranged 
for,  or  the  performance  of  the  stipulated  service  at  the  free  or  reduced  rate.  In 
other  words,  the  power  of  congress  to  regulate  commerce  is  not  hampered  by  any 
obligation  to  preserve  existing  agreements  intact  or  to  deprive  the  parties  thereto 
of  the  right  to  carry  the  same  into  execution  only  upon  the  payment  of  compen- 
sation for  the  rights  thus  injured  or  destroyed,  but  all  such  contracts  must  be 
considered  as  having  been  entered  into  subject  to  the  power  of  congress  at  some 
future  time  to  render  the  same  illegal  and  impossible  of  performance  through  the 
enactment  of  statutes  in  the  exercise  of  its  power  to  regulate  commerce.  Were 
it  otherwise,  the  extent  to  which  the  power  of  congress  could  be  restricted  would 
be  measured  only  by  the  skill  and  foresight  which  designing  parties  could  bring  to 
bear  in  framing  their  agreements. ^^'' 

z:  United  States,  212  U.  S.  522,  53  L.  Ed.  reversing  133  Ky.  G52,  118  S.  W.  982.    See, 

635,  29  S.  Ct.  315.  also,   ante,   "Private   Contracts,"   II,   A,   1, 

"If  it  is  lawful,  in  view  of  the  provisions  b,    (3),    (b),   oo.     And  see   the   title   DUE 

of  the  Interstate  Commerce  Act,  to  issue  PROCESS  OF  LAW,  vol.  5,  p.  575. 

franks   of  the   character  under   considera-  That  such  statutes  are  not  ex  post  facto, 

tion  in  this  case,  then  this  right  must  be  see  ante,   CONSTITUTIONAL  LAW,  p. 

founded    upon    some    exception    incorpo-  264. 

rated  in  the  act."  American  Exp.  Co.  v.  As  to  contracts  and  devices  designed  to 
United  States,  212  U.  S.  522,  533,  53  L.  evade  the  liability  imposed  upon  the  mas- 
Ed.  635,  29  S.  Ct.  315.  ter  by  the  Employers'  Liability  Acts,  see 

483-86J.  Special  contracts  waiving,  modi-  ante,  "Employers'  Liability  Acts,"  II,  A, 
fying  or  annulling  provisions  of  act. —  1,  b,  (3),  (b),  dd,  (cc5^),  eee. 
Armour  Packing  Co.  v.  United  States,  209  A  shipper  is  guilty  of  accepting  trans- 
U.  S.  56,  81,  52  L.  Ed.  681,  28  S.  Ct.  428;  portation  at  less  than  the  carrier's  pub- 
Louisville,  etc.,  R.  Co.  V.  Mottley,  219  U.  lished  rates,  in  violation  of  Elkins  Act 
S.   467,   55   L.   Ed.   297,   31    S.    Ct.   265.  February  19,  1903,  c.  708,  32  Stat.  847   (U. 

483-86k.    Existing  contracts  lawful  when  S.    Comp.   St.   Supp.   1907.   p.   880).  where, 

made. — Louisville,  etc..  R.  Co.  v.  Mottley,  after    the    carrier    has    duly   established    a 

219  U.  S.  467,  55  L.  Ed.  297,  31  S.  Ct.  265,  higher    rate,   he    secures    such    transporta- 

citing  Yturbide  v.  United  States,  22  How.  tion   at   the    rate   agreed   upon   in   a   prior 

290.   293,    16    L.    Ed.    342.  contract  with   the   carrier,   which   was   the 

483-861.     Same — No   vested  right. — New  legal,   published,   and  filed   rate   when   the 

York,   etc.,    R.   Co.   v.   United    States,'  No.  contract  was  made,  since  the  statute,  be- 

2,  212  U.  S.  500,  505,  53  L.   Ed.  624,  29   S.  ing  then  in   force,  is   read  into  such   con- 

Ct.    309;    Armour   Packing    Co.   v.   United  tract,  and  becomes  a  part  of  it.     Armour 

States,  209  U.  S.  56,  52   L   Ed.  681,  28   S.  Packing    Co.   v.   United    States,   209   U.   S. 

Ct.  428;  Louisville,  etc..  R.  Co.  v.  Mottlev,  56,  52  L.  Ed.  681,  28  S.  Ct.  428.    Affirming 

219  U.  S.  467,  55  L.  Ed.  297,  31  S.  Ct.  265,  judgment  (1907),  153  F.  1,  82  C.  C.  A.  135; 

764 


Vol.  VII. 


IXTBRSTATE,  ETC.,  COMMERCE. 


483 


Where  Property  Transported  before  Statute  Went  into  Effect. — And 

this  is  true,  with  respect  to  contracts  for  rebates,  even  though  the  property  was 
transported  before  the  act  went  into  effect.  The  fact  that  the  contract  has  been 
carried  out  to  that  extent  confers  no  vested  right  upon  the  shipper  to  have  it 
completed  by  the  payment  of  the  rebate  agreed  upon.'^'^'" 

(7)  Character  of  Compensation;  Payment  Only  in  Money. — A  carrier  engaged 
in  interstate  commerce  can  not  lawfully  charge,  collect,  or  receive  anything  but 
money  for  transportation  on  its  road  since  the  enactment  of  the  Act  of  June  29, 
1906  (34  Stat,  at  L.  584,  chap.  3591,  §  6  (U.  S.  Comp.  Stat.  Supp.  1909,  p.  1149), 
prohibiting  any  carrier  from  demanding,  collecting,  or  receiving  "a  greater  or 
less  or  different  compensation"  for  the  transportation  of  persons  or  property,  or 
for  any  service  in  connection  therewith,  than  that  specified  in  its  published  sched- 
ule of  rates.^^'^  It  is  expressly  prohibited  to  any  carrier,  unless  otherwise  pro- 
vided, to  demand,  collect,  or  receive  "a  greater  or  less  or  different  compensation" 
for  the  transportation  of  persons  or  property,  or  for  any  service  in  connection 
therewith,  than  the  rates,  fares,  and  charges  specified  in  the  tariff'  filed  and  in  ef- 


Chicago,  etc.,  R.  Co.  v.  United  States,  209 
U.  S.  90.  .52  L.  Ed.  G98,  2S  S.  Ct.  439,  af- 
firming judgment  (C.  C.  A.  1907),  157  F. 
830. 

Agreements  for  free  passes  in  settle- 
ment of  claim  for  damages. — Congress,  in 
the  exercise  of  its  power  over  commerce, 
could  enact  the  provisions  of  Act  June 
26,  1906,  c.  3591,  §  6,  34  Stat.  592  (U.  S. 
Comp.  St.  Supp.  1909,  p.  1163),  which  ren- 
dered unenforceable  a  prior  contract,  valid 
when  made,  by  which  an  interstate  car- 
rier agreed  to  issue  annual  passes  for  life 
in  consideration  of  a  release  of  a  claim 
for  damages.  Louisville,  etc.,  R.  Co.  v. 
Alottley,  219  U.  S.  467.  55  L.  Ed.  297,  31 
S.  Ct.  265,  reversing  decree  (1909),  118 
S.    W.    9S2.    133    Ky.    652. 

The  constitutional  libertj^  of  the  citizen 
to  make  contracts  was  not  infrineed  bv 
the  enactment  by  congress,  in  the  exercise 
of  its  power  over  commerce,  of  the  pro- 
visions of  Act  June  29,  1906,  c.  3591,  §  6, 
34  Stat.  592  (U.  S.  Comp.  St.  Supp.  1909, 
p.  1163),  which  rendered  unenforceable  a 
prior  contract,  valid  when  made,  by  which 
an  interstate  carrier  agreed  to  issue  an- 
nual passes  for  life  in  consideration  of  a 
release  of  a  claim  for  damages.  Louis- 
ville, etc..  R.  Co.  V.  Mottley,  219  U.  S.  467, 
55  L.  Ed.  297,  31  S.  Ct.  265,  reversing  de- 
cree  (1909L  118  S.  W.  982,  133   Ky.  652. 

An  agreement  by  an  interstate  carrier 
to  issue  annual  passes  for  life  in  con- 
sideration of  a  release  of  a  claim  for  dam- 
ages, though  entered  into  prior  to  Act 
June  29,  1906,  c.  3591,  34  Stat.  584  (U.  S. 
Comp.  St.  Supp.  1909,  p.  1149),  was  made 
unenforceable  by  the  prohibition  of  §  6 
(Page  1163)  of  that  act,  against  demand- 
ing, collecting,  or  receiving  "a  greater  or 
less  or  different  compensation"  for  the 
transportation  of  persons  or  property,  or 
for  anv  service  in  connection  therewith, 
than  that  specified  in  the  carrier's  pub- 
lished schedule  of  rates.  Louisville,  etc.. 
R.  Co.  V.  :\lottley,  219  U.  S.  467,  55  L.  Ed. 
297,  31  S.  Ct.  265,  reversing  decree  (1909), 


118   S.   \V.   982,   133   Ky.   652. 

The  agreement  between  the  railroad 
company  and  the  Mottleys  must  neces- 
sarily be  regarded  as  having  been  made 
subject  to  the  possibility  that,  at  some 
future  time,  congress  might  so  exert  its 
whole  constitutional  power  in  regulating 
interstate  commerce  as  to  render  that 
agreement  unenforceable,  or  to  impair  its 
value.  That  the  exercise  of  such  power 
may  be  hampered  or  restricted  to  any  ex- 
tent by  contracts  previously  made  be- 
tween individuals  or  corporations  is  in- 
conceivable. The  franiers  of  the  constitu- 
tion never  intended  any  such  state  of 
things  to  exist.  Louisville,  etc.,  R.  Co.  i'. 
Mottley,  219  U.  S.  467,  55  L.  Ed.  297,  31 
S.   Ct.  265. 

483-86m.  Where  property  transported 
before  statute  went  into  effect. — Xew 
York,  etc.,  R.  Co.  zk  United  States,  No.  2, 
212  U.  S.  500,  505,  5'3  L.  Ed.  624,  29  S.  Ct. 
309.  See,  also,  ante,  "Private  Contracts," 
IL  A,  1,  b,   (3),   (b),  oo. 

The  payment  of  a  rebate  after  the  pas- 
sage of  Elkins  Act,  February  19,  1903,  c. 
708.  32  Stat.  847  (U.  S.  Comp.  St.  Supp. 
1907,  p.  880),  but  upon  shipments  of  prop- 
erty' transported  prior  to  that  enactment, 
is  comprehended  by  its  provisions  that  it 
shall  be  unlawful  to  offer,  grant,  or  give, 
or  to  solicit,  accept,  or  receive  any  re- 
bate in  respect  to  property  in  interstate 
commerce  transportation,  whereby  any 
such  property  shall  be  transported  at  less 
than  the  published  rates.  Judgment  (C. 
C.  1906),  United  States  v.  New  York  Cent. 
&  H.  R.  R.  Co.,  146  F.  298;  Same  v. 
Guilford,  Td.,  affirmed.  New  York,  etc., 
R.  Co.  r.  United  States.  No.  2.  212  U.  S. 
500.   .-).-]    L.    Ed.   624,   29   S.   Ct.   309. 

483-86n.  Character  of  compensation — 
Payment  only  in  money. — Louisville,  etc., 
R.  Co.  r.  Mottley,  219  U.  S.  467,  55  L.  Ed. 
297,  31  S.  Ct.  265,  reversing  decree  (1909), 
118  S.  W.  982,  133  Kv.  652:  Chicago,  etc., 
R.  Co.  V.  United  States.  219  U.  S.  486,  55 
L.  Ed.   305,  31   S.   Ct.  272. 


765 


483 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VIL 


feet  at  the  time.  It  can  not  be  supposed  that  this  change  was  without  a  distinct 
purpose  on  the  part  of  congress.  The  words  "or  different,"  looking  at  the  con- 
text, can  not  be  regarded  as  superfluous  or  meaningless.  The  words  of  the  act, 
therefore,  must  be  taken  to  mean  that  a  carrier  engaged  in  interstate  commerce 
can  not  charge,  collect,  or  receive  for  transportation  on  its  road  anything  but 
money. ^*'° 

(8)  Knowledge,  Intent,  Good  Faith,  etc. — In  so  far  as  Elkins  Act,  §  1  (Act 
Feb.  19,  1903,  c.  708,  2,2  Stat.  847  [U.  S.  Comp.  St.  Supp.  1905,  p.  599]),  pro- 
vided for  punishment  of  corporate  carriers  in  granting,  and  corporate  shippers 
in  knowingly  accepting,  rebates  or  discrimination  from  legal  rates  and  tariff's,  it 
was  not  abrogated  or  repealed  by  the  Hepburn  Act  (Acts  June  29,  1906,  c.  3591, 
34  Stat.  584),  but  was  preserved,  and  so  far  as  it  provided  for  the  punishment  of 
such  acts  when  not  knowingly  done,  it  was  repealed.^^^  Therefore,  intentionally 
accepting  transportation  of  goods  in  interstate  or  foreign  commerce  at  less  than 
the  carrier's  published  rates,  which  is  forbidden  by  the  Elkins  Act  of  February 
19,  1903,  is  sufficient  to  sustain  a  conviction  under  that  act,  although  such  action 
may  have  been  taken  in  good  faith,  under  a  claim  of  legal  right.^*'" 

(9)  Secret  or  Fraudulent  Device  or  Contrivance. — A  device  or  contrivance, 
secret  or  fraudulent  in  its  nature,  is  not  essential  to  sustain  the  conviction  of  a 
shipper  for  violating  the  Elkins  Act  of  February  19,  1903  (32  Stat,  at  L.  847, 
chap.  708,  U.  S.  Comp.  Stat.  Supp.  1907,  p.  880),  making  it  a  criminal  offense  for 
any  -person  or  corporation  to  oft'er,  grant,  solicit,  give,  or  to  accept  or  receive,  any 
rebate,  concession,  or  discrimination  in  respect  to  transportation  of  property  in 
interstate  or  foreign  commerce,  whereby  any  such  property  shall,  by  any  device 


483-860.  Same — Words,  "or-  different" 
compensation  construed. — Louisville,  etc., 
R.  Co.  V.  Mottley,  219  U.  S.  467,  55  L.  Ed. 
297,   31    S.    Ct.   265. 

The  legislative  department  intended 
that  all  who  obtained  transportation  on 
interstate  lines  should  he  treated  alike  in 
the  matter  of  rates,  and  that  all  who 
availed  themselves  of  the  services  of  the 
railway  company  (with  certain  Specified 
exceptions)  should  be  on  a  plane  of 
equality.  Those  ends  can  not  be  met 
otherwise  than  by  requiring  transporta- 
uon  to  be  paid  for  in  money,  which  has  a 
certain  value,  known  to  all,  and  not  in 
commodities  or  services,  or  otherwise 
than  in  money.  "  Chicago,  etc.,  R.  Co.  v. 
United  States,  219  U.  S.  486,  55  L.  Ed. 
.305,   31    S.    Ct.   272. 

Annual  passes  in  consideration  of  re- 
lease of  claim  for  damages. — An  inter- 
state carrier  can  not  make  a  valid  con- 
tract to  issue  annual  passes  for  life  in 
consideration  of  a  release  of  a  claim  for 
damages,  since  the  enactment  of  the  .\ct 
of  June  29,  1906,  §  6,  expressly  prohibiting 
any  carrier  from  demanding,  collecting, 
or  receiving  "a  greater  or  less  or  dif- 
ferent compensation'"  for  the  transporta- 
tion of  persons  or  property,  or  for  anj' 
service  in  connection  therewith,  than  that 
specified  in  its  published  schedule  of 
rates.  Louisville,  etc.,  R.  Co.  i'.  ]Mottley, 
219  U.  S.  467,  55  L.  Ed.  297,  31  S.  Ct.  265, 
reversing   133    Ky.   652,   118    S.   W.    982. 

Acceptance  of  advertising  in  lieu  of 
money. — The  acceptance  of  advertising  by 


a  carrier  in  lieu  of  money  in  payment  of 
interstate  transportation  furnished  to  the 
publisher,  his  employees,  and  the  imme- 
diate members  of  his  and  their  families, 
violates  tlie  provisions  of  the  act  to  regu- 
late commerce  (Act  February  4,  1887,  c. 
104,  24  Stat.  379  [U.  S.  Comp.  St.  1901,  p. 
3154]),  and  Act  l-ebruary  19,  1903,  c.  708, 
32  Stat.  847  (U.  S.  Comp.  St.  Supp.  1909, 
p.  1138),  and  Act  June  29,  1906,  c.  3591, 
34  Stat.  584  (U.  S.  Comp.  St.  Supp.  1909, 
p.  1149),  amendatory  thereof,  prohibiting 
the  furnishing  of  interstate  transportation 
for  a  less  or  different  compensation  than 
that  specified  in  the  carrier's  published 
rates.  Chicago,  etc.,  R.  Co.  v.  United 
States,  219  U.  S.  486.  55  L.  Ed.  305,  31  S. 
Ct.  272,  affirming  judgment  in  United 
States  t'.  Chicago,  I.  &  L.  Ry.  Co.  (C.  C. 
1908),   163    F.    114. 

State  law  authorizing  payment  other 
than  in  money. — See  ante.  "Paramoimt  in 
Its  Operation."  IV,  D,  1,  ^l2,   (2). 

483-86p.  Knowledge,  intent,  good  faith, 
etc. — Great  Northern  R.  Co.  v.  United 
States,  155  Fed.  945,  84  C.  C.  A.  93,  judg- 
ment affirmed  in  Great  Northern  R.  Co. 
V.  United  States,  208  U.  S.  452,  52  L.  Ed. 
567,   28   S.   Ct.   313. 

483-86q.  Same. — Armour  Packing  Co.  v. 
United  S'tates,  209  U.  S.  56,  52  L.  Ed.  681, 
28  S.  Ct.  428,  affirming  judgment  (1907), 
153  F.  1,  82  C.  C.  A.  135;  Chicago,  etc.,  R. 
Co.  V.  United  States,  209  U.  S.  90.  52  L. 
Ed.  698,  28  S.  Ct.  439,  affirming  judgment 
(C.   C.   A.   1907),   157   F.   830. 


766 


Vol.  VII.  INTERSTATE,  ETC.,  COMMERCE.  483 

whatever,  be  transported  at  less  than  the  carrier's  published  rates,  or  wh.ereby 
any  other  advantage  is  given  or  discrimination  practiced.^**"" 

(10)  Posting  of  Rates  Not  Necessary  Element  of  Offense. — Compliance  with 
the  requirements  of  §  6  of  the  Act  to  Regulate  Commerce  of  June  29,  1906,  that 
copies  of  schedules  and  tariffs  for  the  use  of  the  public  shall  be  "posted"  in  two 
public  and  conspicuous  places  in  every  depot,  so  as  to  be  readily  accessible  to  the 
public,  is  not  essential  to  bring  a  tariff  within  the  provision  of  such  act  making  it 
a  misdemeanor  for  any  shipper  knowingly  to  solicit,  accept,  or  receive  a  rebate 
or  concession  whereby  property  is  transported  in  interstate  commerce  at  a  less 
rate  than  that  named  in  the  tariff's  "published  and  tiled"  by  such  carrier,  as  pub- 
lication is  a  step  in  establishing  rates,  while  posting  is  a  duty  arising  from  the 
fact  that  they  have  been  established. ^'^^ 

(11;  Liability  of  Carrier  Participating  in  Joint  or  Tliroitgh  Rate. — A  carrier 
which  gives  rebates  from  a  joint  rate  on  file  with  the  interstate  commerce  com- 
mission may,  although  it  did  not  itself  publish  and  file  the  rate,  be  convicted  of 
violating  the  Elkins  Act  of  February  19,  1903  (32  Stat,  at  L.  847,  chap.  708,  U. 
S.  Comp.  Stat.  Supp.  1907,  p.  880),  which,  inter  alia,  provides  that  the  published 
rate  shall  be  conclusively  deemed,  in  any  prosecution  under  the  act,  to  be  the  le- 
gal rate  as  against  the  carrier  who  files  the  same  or  "participates  in  any  rates  so 
filed  or  published,"  and  that  any  departure  from  such  rate  shall  be  deemed  to  be 
an  offense  under  the  act.'^"* 

Not  Essential  to  Commission  of  Offense  That  Joint  through  Rate 
Should  Have  Been  Published  and  Filed, — It  is  not  essential,  however,  to  the 
commission  of  the  offense  of  giving  a  concession  from  a  through  rate  over  con- 
necting lines  of  railroad,  under  the  Elkins  Act  of  February  19,  1903,  c.  708,  32 
Stat.  847  [U.  S.  Comp.  St.  Supp.  1907,  p.  880],  that  the  rate  be  a  joint  one  es- 
tablished by  all  of  the  carriers  and  published  and  filed  with  the  interstate  com- 
merce commission.  If  an  initial  carrier  accepts  traffic  for  transportation,  and  is- 
sues its  bill  of  lading  over  a  route  made  up  of  connecting  roads  for  which  no 
joint  through  rate  has  been  published  and  filed  with  the  commission,  the  lawful 
rate  to  be  charged  is  the  sum  of  the  established  local  rates  published  and  filed  by 
the  individual  roads;  or  if  there  is  a  local  rate  over  one  road  and  a  joint  rate 
over  the  others  for  the  remainder  of  the  route,  all  published  and  filed  with  the 
commission,  the  lawful  through  rate  to  be  charged  is  the  sum  of  the  local  and 
joint  rates. ^^" 

483-86r.  Secret  or  fraudulent  device  or  under  the  Elkins  Act  for  the  offense  of  re- 
contrivance. — Armour  Packing  Co.  i'.  bating  where  it  is  a  party  to  the  joint 
United  States,  209  U.  S.  56,  52  L.  Ed.  681,  rate  although  it  has  not  filed  and  pub- 
28  S.  Ct.  428,  affirming  judgment  (1907),  lished  the  same  itself.  While  it  is  used 
153  F.  1,  82  C.  C.  A.  135;  Chicago,  etc.,  R.  for  the  initial  carrier  to  file  such  joint 
Co.  V.  United  States.  209  U.  S.  90,  52  L.  tariffs,  the  fact  that  it  was  filed  by  an- 
Ed.  698,  28  S.  Ct.  439,  affirming  judgment  other  carrier  participating  therein  is  im- 
(C.   C.  A.  1907),   157  F.  830.  material,    since    §    1    of    the    Elkins    Law 

483-86S.  Posting  of  rates  not  necessary  brings  all  the  carriers  who  have  partici- 
element  of  offense. — United  States  v.  pated  in  any  rate  filed  or  published  within 
Miller,  223  U.  S.  599,  56  L.  Ed.  568,  32  S.  the  terms  of  the  act,  as  much  so  as  if  the 
Ct.  323.  See,  also,  Texas,  etc.,  R.  Co.  i'.  tariff  had  been  actually  published  and 
Cisco  Oil  Mill,  204  U.  S.  449,  51  L.  Ed.  filed  by  such  participating  carrier,  for  the 
562,  27  S.  Ct.  358;  Kansas  City,  etc.,  R.  statute  specifically  provides  that  the  pub- 
Co.  V.  Albers  Comm.  Co.,  223  U.  S.  573,  lished  rate  shall  be  conclusively  deemed 
56  L.  Ed.  556,  32  S.  Ct.  316.  And  see  post,  in  any  prosecution  under  the  act  to  be 
"Manner    of   Publication."    IV.    H.    1,    d.  the  legal  rate  as  against  the  carrier  who 

483-86t.   Liability  of  carrier  participating  files    the    same,    or    "participates    in    any 

in  joint   or   through   rate. — United    States  rates     so     filed    and  published."'     United 

V.  Xew  York,  etc.,   R.  Co.,  212  U.  S.  509,  States  v.   New  York,  etc.,   R.  Co.,  212  U. 

53  L.  Ed.  629,  29  S.  Ct.  313,  reversing  (C.  S.   509.  53   L.   Fd.   fi?9.  29  S.   Ct.  313.      See, 

C),  157   Fed.  293.     See.  also,  post,  "joint  also,   post,    "Joint   Tariffs    of  Rates,"    IV, 

Tariffs  of  Rates,"  IV,  H,  4.  H,  4. 

An  interstate  carrier  may  be  prosecuted  483-86u.     Not    essential    to    commission 

767 


483  INTERSTATE,  ETC.,  COMMERCE.  Vol.  VII. 

Where  Connecting  Carrier  Has  Contracted  Not  to  Increase  Rates. — 

The  acceptance  by  an  initial  carrier  of  a  through  shipment  to  be  carried  at  less 
than  the  lawful  rates  is  not  rendered  lawful  by  the  fact  that  such  carrier  had  a 
contract  with  a  connecting  carrier  whose  line  formed  a  part  of  the  through  route 
that  the  latter  would  not  increase  its  rate  during  a  certain  time  and  on  the  faith 
of  such  contract  made  a  similar  contract  with  the  shipper,  where  in  the  mean- 
time the  connecting  carrier  had  in  fact  published  and  filed  with  the  commission  a 
new  schedule  increasing  the  rate.^*^^ 

No  Previous  Formal  Contract  Necessary  to  Bring  Carriers  within  Op- 
eration of  Law. — In  the  concert  of  action,  in  the  successive  receipt  and  move- 
ment of  traffic  by  connecting  carriers  under  through  bills  of  lading  for  continu- 
ous carriage,  is  manifested  the  common  arrangement  contemplated  by  the  interstate 
commerce  laws,  and  no  previous  formal  contract  is  necessary  to  bring  the  car- 
riers under  the  provisions  of  the  law.''^'^^ 

Liability  of  Connecting  Carrier  for  Acts  of  Initial  Carrier. — It  is  the 
duty  of  a  connecting  carrier  to  take  the  cars  as  they  are  delivered  to  it  by  the  ini- 
tial carrier,  and  in  so  doing  it  is  not  liable  for  a  discrimination  practiced  by  the 
initial  carrier  merely  because  such  connecting  carrier  has  participated  in  the 
adoption  of  a  joint  through  rate,  reasonable  in  itself,  notwithstanding  the  provi- 
sion contained  in  §  8  of  the  Act  of  February  4,  1887,  ch.  104,  24  Stat.  379,  that  a 
carrier  which  "shall  do,  cause  to  be  done,  or  permit  to  be  done,  any  act,  matter  or 
thing  in  this  act  prohibited  or  declared  to  be  unlawful"  shall  be  liable  to  the  full 
amount  of  the  damages  sustained  by  one  injured  thereby.^**'' 

(12)  When  Offense  Complete. — The  offense  of  giving  rebates  in  violation  of 
the  Elkins  Act  of  February  19,  1903,  c.  708,  Z2  Stat.  847  (U.  S.  Comp.  St.  Supp. 
1907,  p.  880),  is  not  complete  nor  the  offense  committed  until  the  carrier,  to 
whom  the  shipper  has  paid  the  full  legal  rate,  has  refunded  to  the  shipper,  upon 
a  claim  presented  by  him,  a  part  of  the  legal  rate  already  paid.'^*^^  It  follows, 
therefore,  that  the  Elkins  law  applies  and  that  a  prosecution  thereon  may  be  sus- 
tained where  the  agreement  for  the  rebate  was  made  and  the  property  trans- 
ported pursuant  thereto  before  the  Elkins  law  went  into  effect,  notwithstanding 

of  offense  that  joint  through  rate  should  initial  carrier  is  not  liable  for  a  discrimi- 

have   been  published   and   filed. — Chicago,  nation  in  favor  of  shippers  of  oil  in  tank 

etc.,    R.    Co.   z'.   United   States    (C.   C.   A.),  cars  and  against  shippers  of  oil  in  barrels, 

157  Fed.  S30,  affirmed  in  Chicago,  etc.,  R.  which    may    be    practiced    by    the    initial 

Co.   V.   United   States,  209   U.   S.   90,   52   L.  carrier,    merely    because    such    connecting 

Ed.   698,   28   S.   Ct.   439.  carrier  has  participated  in  the  adoption  of 

483-8ev.    Where   connecting   carrier  has  a  joint  through  rate  for  barrel  shipments, 

contracted    not    to    increase    rates.— Chi-  which    is,    in    itself,    reasonable,    although, 

cago,  etc..   R.   Co.  v.  United   States    (C.   C.  l^Y   Act    February   4,   1887,   c.    104,    §   8,   24 

A.),    157    Fed.    830,    affirmed     in      Chicago,  Stat.  379.  a  earner  which  "shall  do,  cause 

etc.,  R.  Co,  r.  United  State'-,  209  U.  S.  ^o  be  done,  or  permit  to  be  done,  any 
90,  52  L.  Ed.  698,  28  S.  Ct.  439.'    '                     '     act,    matter,    or    thing    in    this     act      pro- 

483-86W.     No    previous   formal   contract  fibited  or  declared  to  be  unlawful,"  shall 

necessary    to    bring    carriers    within      the  '^^  ^'^^'^^  ^o  the  full  amount  of  the  dam- 

^r^^r-^ir-,^'^     ^f    4.v,.>    lo,.,      n\.;^^^  I-        -u  ages    sustamed    by    one    m'ured    thereby. 

operation    or    the    law. — Lnicago,    etc.,    K.  t     iA        i.     tut     ,,.  ^^         -^^     r      o     n     t> 

pT  TT    u   J   Ct   t       m    n     A  \    ic-   TT   J  udginent.    Western    acw    y  ork    &    P.    R. 

Co.  V.  United  States   (C.   C.  A.),   157   Fed.  ,-'  td  r>   c    •         n       /^nr,rr\     -lor.    -a- 

oon       cc         J    •       n\  ■  t        -D     n  Co.   T'.    Penn    Rennins-    Co.    (1905).    137    F. 

830,    amrmed    in    Chicago,    etc.,    R.    Co.    z'.  o  <o    -n  /^    r~«     \    no      a:         ^      t3  d   c 

TT    -4.   J  c  4.        or>A  TT    c    t^n    -o  T     T1'  J    or^c,  343,  70  C.  C.  A.  23,  amriiied.     Penn    Renn. 

United  States,  209  U.  S.  90,  o2  L.  Ed.  698,  ^    '       -iir     ,  i       t>    r>       oao  tt    c    .t,-.o 

oa   Q    Pf     4QQ  '^o-  ''•  Western,  etc.,  R.  Co.,  208  U.  S.  208, 

..»   5.   ^l.  4rfy.      _  _  52    i^     £d     456_   28    S.    Ct.    268. 

483-86X.    Liability  of  connecting  earner  483-86y.    When  offense  complete.— Nen' 

for   acts   of  initial    carrier. — Penn      Refin.  York,  etc.,  R.  Co.  :■.  United  States,  212  U. 

Co.    V.    Western,    etc..    R.    Co.,    20S    U.    S.  s.  481.  53  L.  Ed.  613,  29  S.  Ct.  304,'  affirm- 

208,  52  E.  Ed.  456,  28  S.  Ct.  268,  affirming  j^g  (C.  C),  146  Fed.  298;  New  York,  etc., 

137   Fed.   343,   70   C.   C.   A.  23.  r.   Co.  v.   United   States,   No.  2,  212  U.   S. 

A    connecting    carrier    which    takes    the  500,   505,   53   L.   Ed.   624,   29   S.   Ct.   309. 
cars    as    they    are    delivered    to    it    by    the 

768 


Vol.  VII.  INTERSTATE,  ETC.,  COMMERCE.  483-484 

the  actual  refunding  of  a  part  of  the  legal  rate  was  not  made  until  after  the  law 
went  into  effect. ""'^ 

Separate  and  Continuing  Offenses. — \\  here  pursuant  to  a  previous  agree- 
ment, preceding  transportation,  a  number  of  separate  shipments  are  made  and 
the  full  legal  rate  paid  thereon,  and  afterwards  claims  of  the  shipper  for  the  re- 
bates stipulated  in  such  agreement  are  presented  at  short  intervals  and  paid  by- 
checks  to  the  shipper,  the  offense  is  not  a  single  and  continuing  one,  but  there 
was  a  complete  and  separate  offense  upon  the  making  of  each  payment  by  the 
railroad  company  of  the  stipulated  rebate.'*''^'' 

(13)  Amcnd)ncnt  and  Repeal  of  Act. — As  to  Elements  of  Knowledge,  In- 
tent, Good  Faith,  etc. — See  ante,  "Knowledge,  Intent,  Good  Faith,  etc.,"  IV, 
D,  1,  ai2,  (8). 

Effect  upon  Past  Offenses,  Pending  Causes,  etc. — Eff'ect  must  be  given, 
in  construing  a  repealing  act,  to  the  general  saving  clause  in  U.  S.  Rev.  Stat.,  § 
13,  U.  S.  Comp.  Stat.  1901,  p.  6,  prescribing  the  effect  of  repealing  acts  on  exist- 
ing penalties,  forfeitures,  and  liabilities,  unless,  either  by  express  declaration  or 
necessary  implication  arising  from  the  terms  of  the  repealing  law  as  a  whole,  it 
results  that  the  legislative  mind  will  be  set  at  naught  by  giving  eff'ect  to  such  sav- 
ing clause.^"''''  The  exception  from  the  operation  of  the  provision  repealing  con- 
flicting laws,  which  is  made  by  the  Hepburn  Act  of  June  29,  1906  (34  Stat,  at  L. 
584,  chap.  3591,  U.  S.  Comp.  Stat.  Supp.  1907,  p.  892),  §  10,  in  favor  of  causes 
pending  in  the  federal  courts,  which  "shall  be  prosecuted  to  conclusion  in  the 
manner  heretofore  provided  by  law,"  was  addressed  solely  to  the  procedure  to 
be  followed  in  pending  cases,  and  such  section,  therefore,  does  not  supersede  the 
general  provision  of  U.  S.  Rev.  Stat.,  §  13,  saving  existing  forfeitures,  penalties, 
or  liabilities  from  repeal,  so  as  to  prevent  future  criminal  prosecutions  for  of- 
fenses agamst  the  Elkins  Act  of  Feb.  19,  1903  (32  Stat,  at  L.  847,  chap.  708,  U. 
S.  Comp.  Stat.  Supp.  1907,  p.  880),  committed  prior  to  the  adoption  of  the  later 
statute.-^'-^'^ 

b.  Like  and  Contemporaneous  Service  under  Similar  Conditions — (2)  Compe- 
tition.— See  note  89. 

483-86Z.    Carrying  out  of  existing  agree-  clause,    by    treating    it    as    saving    causes 

ments   after   statute   went    into     effect. —  then  pending  in  the  courts  from  what,  in 

New  York,  etc..   R.   Co.  v.  United   States,  its    absence,    and    in    the   presence    of   the 

No.   2,   212   U.   S.   500,   505,   53   L.   Ed.   624,  general   saving   clause,    will   be    the    efifect 

29   S.   Ct.  309.     See,   also,  ante,   "Existing  on  them  of  the  amendments  in  that  act. 

Contracts  Lawful  When  ]\Iade,"  IV,  D,  1,  It  does  not  necessarily  supersede  the  gen- 

a^2,   (6).  eral    saving    clause.      Great    Northern    R. 

483-86aa.    Separate    and    continuing    of-  Co.  v.  United  States,  155  F.  945,  84  C.  C. 

fenses. — New  York,  etc.,  R.  Co.  f.  United  A.  93,  judgment  affirmed.    Great  Northern 

States.  212  U.   S.  481,  53  L.   Ed.  613,  29   S.  R.   Co.  "•.  United   States,  208   U.   S.  452.  52 

Ct.  304.  L.    Ed.   567,   28    S.    Ct.   313. 

483-86bb.     Effect    upon    past     offenses,  484-89.    Competition— When  considered, 

pending   causes,   etc. — Great    Northern    R.  — Railway  companies,  in  fixing  their  rates, 

Co.  V.  United  States,  208  U.  S.  452,  52   L.  may   take    into   account   competition   with 

Ed.   567,   28   S.   Ct.   313.  other  carriers,  provided  that  such  compe- 

483-86CC.    Same. — Great  Northern  R.  Co.  tition  is  genuine.     Judgment  (C.  C.  1905), 

V.  United  States,  208  U.   S.  452,  52  L.  Ed.  141      F.     1003,   affirmed.      Interstate    Com- 

567,  28  S.  Ct.  313.  merce  Comm.  v.  Chicago,  etc.,  R.  Co.,  209 

The    special    saving   clause    in    Hepburn  U.   S.  108,  52  L.  Ed.  705,  28  S.  Ct.  493. 

Act    (Act   June   29.   1906,   c.   3591,   34   Stat.  A  genuine  competition  which  results  in 

584),  §  10,  does  not  mention  the  particular  a  reduction  of  freight  rates  negatives  any 

subject    of    the    general    saving    clause    in  unlawful  intent  on  the  part  of  the  carrier, 

Rev.   St.,   §    13    fU.    S.    Comp.    St.   1901,   p.  and   leaves   open   only   the   question   as   to 

6],   as  to  the   effect  on   existing  penalties.  whether  the  rates,  as  established,  work  an 

forfeitures,    and    liabilities    of   a    repealing  undue  preference  or  discrimination.  Judg- 

act,    and    can     be      accorded      reasonable  ment    (C.   C.   1905),   141    F.   1003,   affirmed, 

operation,   consistently   with    the   true    in-  Interstate   Commerce   Comm.  v.   Chicago, 

tent   of  its   language   and  with   the   undis-  etc.,   R.  Co.,  209  U.  S.  108,  52  L.   Ed.  705, 

turbed    operation    of    the    general    saving  28  S.  Ct.  493. 

12  U  S  Enc— 49  769 


484 


INTBRSTATB,  ETC.,  COMMERCE. 


Vol.  VII. 


(3)  Discriminations  Based  on  Oivnersliip;  Aggregation  of  Sliipments  by  For- 
warding Agents,  etc. — The  ownership  or  nonownership  by  the  shipper  of  the 
goods  tendered  for  carriage  is  not  a  dissimilar  circumstance  and  condition,  within 
the  meaning  of  Act  Feb.  4,  1887,  c.  104,  §  2,  24  Stat.  379  (U.  S.  Comp.  St.  1901, 
p.  3155),  prohibiting  inequality  and  discrimination  in  rates.*^^  A  carrier  may 
not,  therefore,  under  the  Interstate  Commerce  Act  (Act  February  4,  1887,  ch. 
104,  24  Stat.  379,  U.  S.  Comp.  Stat.  1901,  p.  3154)  make  the  ownership  of  goods 
tendered  to  it  for  carriage  the  criterion  by  which  its  charge  for  such  carriage  is 
to  be  measured. ^^^ 

Aggregation  of  Shipments  by  Forwarding  Agents — Construction  of  Act. 
— The  settled  construction  of  the  equality  clause  of  the  English  Railway  Clauses 
Consolidation  Act  of  1845,  as  forbidding  the  charging  of  a  higher  rate  for  the 
carriage  of  goods  for  an  intercepting  or  forwarding  agent  than  for  others,  applies 
in  construing  the  provisions  of  the  Act  of  February  4,  1887,  §  2,  which  were 
substantially  taken  from  the  English  statute.^^'^ 

Forwarding  Agent  a  "Person"  within  Meaning  of  Act. — A  forwarding 
agent  is  a  person  within  the  meaning  of  the  Interstate  Commerce  Act  of  Febru- 
ary 4,  1887,  c.  104,  §  2,  24  Stat.  379,  U.  S.  Comp.  Stat.  1901,  p.  3155,  forbidding 
preferences  and  discriminations  in  rates. ^^"^  Therefore  a  carrier  may  not  forbid 
the  aggregation  of  the  shipments  of  various  owners  for  the  purpose  of  carload 
rating  in  official  classification  territory,  or  the  combination  of  such  shipments  by 
forwarding  agents  for  that  purpose,  where  preferences  and  discriminations  for- 
bidden by  the  Act  of  February  4,  1887,  §  2,  will  result  from  the  carrier's  ac- 
tion.s9e 


484-89a.  Ownership  or  nonownership 
not  a  dissimilar  circumstance  or  condi- 
tion.— Interstate  Commerce  Comm.  z: 
Delaware,  etc..  R.  Co.,  220  U.  S.  235,  55 
L.  Ed.  448,  31  S.  Ct.  392,  reversing  (C. 
C),  166  Fed.  499. 

484-89b.  Same. — Interstate  Commerce 
Comm.  V.  Delaware,  etc.,  R.  Co.,  220  U. 
S.  235,  55  L.  Ed.  448,  31  S.  Ct.  392,  revers- 
ing decree  in  Delaware,  L.  &  W.  R.  Co. 
V.  Interstate  Commerce  Commission  (C. 
C.    1908).    160    F.    499. 

484-89C.  Aggregation  of  shipments  by 
forwarding  agents — Construction  of  act. 
— Interstate  Commerce  Comm.  v.  Dela- 
ware, etc.,  R.  Co.,  220  U.  S.  235,  55  L. 
Ed.   448,   31    S.    Ct.   392. 

It  is  not  open  to  question  that  the  pro- 
visions of  §  2  of  the  act  to  regulate  com- 
merce were  substantially  taken  from  §  90 
of  the  English  Railway  Clauses  Consoli- 
dation Act  of  1845,  known  as  the  "equality 
clause."  Texas,  etc.,  R.  Co.  i'.  Interstate 
Commerce  Comm.,  162  U.  S.  197,  222,  40 
L.  Ed.  940,  16  S.  Ct.  661.  Certain  also  is 
it  that,  ai  the  time  of  the  passage  of  the 
act  to  regulate  commerce,  that  clause  in 
the  English  act  had  been  construed  as 
only  embracing  circumstances  concern- 
ing the  carriage  of  the  goods,  and  not  the 
person  of  the  sender;  or,  in  other  words, 
that  the  clause  did  not  allow  carriers  by 
railroad  to  malie  a  difference  in  rates  be- 
cause of  differences  in  circumstances  aris- 
ing either  before  the  service  of  the  car- 
rier began  or  after  it  was  terminated.  It 
was  therefore  settled  in  England  that  the 


clause  forbade  the  charging  of  a  higher 
rate  for  the  carriage  of  goods  for  an  inter- 
cepting or  forwarding  agent  than  for  oth- 
ers. Great  Western  R.  Co.  v.  Sutton 
(1869)  L.  R.  4  H.  L.  226;  Evershed  v. 
London  &  N.  W.  R.  Co.  (1878)  L.  R.  3 
App.  Cas.  1029.  5  Eng.  Rul.  Cas.  351,  and 
Denaby  Main  Colliery  Co.  v.  Manchester, 
S.  &  L.  R.  Co.  (1885)  L.  R.  11  App.  Cas. 
97.  Interstate  Commerce  Comm.  v.  Dela- 
ware, etc..  R.  Co.,  220  U.  S.  235,  55  L.  Ed. 
448,    31    S.    Ct.    392. 

484-89d.  Same — Forwarding  agent  a 
"person"  within  meaning  of  act. — Inter- 
state Commerce  Comm.  z'.  Delaware,  etc.. 
R.  Co.,  220  U.  S.  235,  55  L.  Ed.  448,  3lS. 
Ct.  392,  reversing  Delaware,  etc.,  R.  Co. 
z'.  Interstate  Commerce  Commission  (C. 
C.   1908).   166   Fed.  499. 

484-89e.  Same. — Interstate  Commerce 
Comm.  V.  Delaware,  etc.,  R.  Co.,  220  U. 
S.  235,  55  L.  Ed.  448,  31  S.  Ct.  392,  revers- 
ing decree,  Delaware,  etc.,  R.  Co.  v.  In- 
terstate Commerce  Commission,  166  Fed. 
499. 

The  proposition  that,  as  the  wide  range 
of  carload  rates  and  the  extent  of  the 
facility  for  combining  articles  for  the  pur- 
pose of  obtaining  such  rates  allowed  in 
official  classification  territory  are  the  re- 
sult of  the  voluntary  act  of  the  railroads, 
therefore  the  power  existed  in  the  rail- 
roads to  restrict  and  limit  the  enjoyment 
of  such  rate,  as  was  done  by  the  assailed 
rules,  rests  upon  the  fallacious  assump- 
tion that  because  a  carrier  has  the  au- 
thority   to    fix    rates,    it    has    the    right    to 


770 


Vol.  VII.  INTERSTATE,  ETC.,  COMMERCE.  484 

(4)  Discrunination  as  betzvecn  Different  Commodities. — See  post,  "As  between 
Commodities  and  Localities,"  IV,  E,  1,  c,  (4). 

(5)  Discrimination  in  Rates  Based  upon  Difference  in  Facilities — (a)  Dis- 
crimination in  Faz'or  of  Carriers  by  Reason  of  Their  Superior  Facilities. — Dif- 
ferences with  respect  to  competition  between  coal  intended  for  railway  consump- 
tion and  other  coal,  and  with  respect  to  the  manner  of  deliver}^  depending  upon 
a  difference  in  the  facilities  possessed  by  the  railroads  and  other  consignees,  do 
not  make  the  interstate  traffic  therein  dissimilar  in  circumstances  and  conditions, 
wathin  the  meaning  of  the  Interstate  Commerce  Act  of  February  4,  1887  (24  Stat. 
at  L.  380,  chap.  104,  U.  S.  Comp.  Stat.  1901,  p.  3155),  §  2,  so  as  to  justify  the 
giving  of  a  lower  rate  for  the  transportation  of  railway  fuel  coal  than  is  given  to 
shippers  of  other  coal  between  the  same  points. ^^^ 

(b)  Allozvance  for  Privately  Ozvned  Facilities — aa.  In  General. — The  Inter- 
state Commerce  Act  contemplates  that  interstate  carriers  may  use  facilities 
owned  by  the  shipper  and  make  compensation  therefor,  and  by  §  12  of  the  Act  of 
June  18,  1910,  ch.  309,  it  is  expressly  provided  that:  "If  the  owner  of  property 
transported  under  this  act  directly  or  indirectly  renders  any  service  connected 
with  such  transportation,  or  furnishes  any  instrumentality  used  therein,  the 
charge  and  allowance  therefor  shall  be  no  more  than  is  just  and  reasonable,  and 
the  commission  may  after  hearing  on  a  complaint  or  on  its  own  initiative,  deter- 
mine what  is  a  reasonable  charge  as  the  maximum  to  be  paid  by  the  carrier  or 
carriers  for  the  services  so  rendered  or  for  the  use  of  the  instrumentality  so  fur- 
nished, and  fix  the  same  by  appropriate  order,  which  order  shall  have  the  same 
force  and  efifect  and  be  enforced  in  like  manner  as  the  orders  above  provided  for 
under  this  section"  (36  Stat,  at  L.  553).  It  thus  appears  that  the  statute,  while 
recognizing  that  the  carrier  may  lawfully  make  compensation  for  services  ren- 
dered or  facilities  furnished  by  the  shipper,  also  recognizes  that  such  transac- 
tions may  be  made  the  cloak  for  the  granting  of  reduced  rates,  secret  rebates, 
and  other  abuses,  and  carefully  provides  that  such  charge  and  allowance  therefor 
shall  be  no  more  than  is  just  and  reasonable,  and  gives  the  commission  power  to 
determine  what  is  such  just  and  reasonable  charge.^^s  fhe  compensation  con- 
discriminate  as  to  those  who  shall  be  en-  roads  and  other  consignees,  and  it  was 
titled  to  avail  themselves  of  them.  In-  urged  that  the  shipment  of  the  fuel  coal 
terstate  Commerce  Comm.  z\  Delaware,  to  a  particular  railroad  "for  the  use  of 
etc.,  R.  Co.,  220  U.  S.  235,  55  L.  Ed.  448,  that  railroad"  makes  special  the  traffic. 
31   S.   Ct.   392.  And,    further,    that    "a    railroad    is    not    a 

484-89f.  Discrimination  in  favor  of  car-  person,"  but  is  "rather  in  the  nature  of  a 
riers  by  reason  of  their  superior  facilities.  geographical  division  and  extends  through 
— Interstate  Commerce  Comm.  v.  Balti-  long  distances."  The  court  held  that  it 
more,  etc.,  R.  Co.,  225  U.  S.  326,  56  L.  Ed.  could  not  accept  the  likeness  nor  the  dis- 
1107,   32   S.   Ct.   742.  tinctions   which   were   said  to  establish   it, 

In  its  most  abstract  form  the  simple  and  that  the  railroad  company  could  not 
statement  of  the  controversy  is  whether  be  put  out  of  view  as  a  favored  shipper, 
the  companies  may  charge  a  different  rate  Interstate  Commerce  Comm.  v.  Baltimore, 
for  the  transportation  of  fuel  coal  to  a  etc..  R.  Co.,  225  U.  S.  326,  56  L.  Ed.  1107, 
given  point  than  for  the  transportation  of       32   S.   Ct.   742. 

a  commercial  coal  to  the  same  point.  The  484-89g.  Allowance  for  privately  owned 

commission  insisted  upon  the  simplicity  facilities. — Penn  Refin.  Co.  v.  Western, 
of  the  problem  and  contended  that  there  etc.,  R.  Co.,  208  U.  S.  208,  52  L.  Ed.  456, 
was  nothing  in  the  conditions  of  the  28  S.  Ct.  268;  Chicago,  etc.,  R.  Co.  7/. 
traffic  which  dispensed  with  the  clear  le-  United  States,  156  Fed.  558,  84  C.  C.  A. 
gal  duty  of  the  companies  under  the  In-  324,  affirmed,  Chicago,  etc.,  R.  Co.  v. 
terstate  Commerce  Act  to  carry  for  all  United  States,  212  U.  S.  563,  53  L.  Ed. 
shippers  alike.  The  fuel  and  commercial  653,  29  S.  Ct.  689;  Interstate  Commerce 
coal  went  to  the  same  point,  and  were  Comm.  v.  Diffenbaugh,  222  U.  S.  42,  56 
delivered  at  the  same  point.  There  was,  L.  Ed.  83,  32  S.  Ct.  22;  Union  Pac.  R.  Co. 
it  is  true,  a  difference  in  the  manner  of  v.  Updike  Grain  Co.,  222  U.  S.  215,  56  L. 
delivery,  depending  upon  the  diiTerence  Ed.  171,  32  S.  Ct.  39. 
in    the    facilities    possessed    liy     the      rail- 

771 


484 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


templated  by  this  section  for  the  use  of  facihties  furnished  by  the  shipper  is  not 
necessarily  .unlawful  because  it  works  a  disadvantage  to  other  shippers  of  the 
same  commodity  who  do  not  own  such  facilities  or  who  can  not  use  them  to  ad- 
vantage. In  short,  the  law  does  not  attempt  to  equalize  fortune,  opportunities  or 
abilities. *^'^'^  On  the  other  hand,  the  facility  for  the  use  of  which  compensation 
is  made  must  be  one  which  the  carrier  uses  in  interstate  commerce.  It  is  not  law- 
ful to  make  compensation  or  allowance  to  the  shipper  for  facilities  used  merely 
for  the  purpose  of  bringing  his  products  from  his  factory  or  mine  out  to  the  car- 
rier's road  where  they  may  be  taken  up  and  started  on  their  interstate  journey. •'^'^' 
bb.  Elevator  Service  in  Connection  zcitli  Shipment  of  Grain. — The  long-mooted 
question  as  to  whether  elevation  was  such  a  part  of  transportation  as  to  bring 
it  within  the  jurisdiction  of  the  interstate  commerce  commission  was  answered  by 
the  Act  of  June  29,  1906  (34  Stat,  at  L.  584,  590,  chap.  3591,  U.  S.  Comp.  Stat. 
Supp.  1909,  p.  1150),  in  which  congress  declared  that  the  term  "'transportation' 
shall  include  *  *  *  all  *  *  *  facilities  of  shipment,  ^  *  *  irre- 
spective of  ownership.  '•'  *  '■'  and  all  services  in  connection  with  the  *  *  * 
elevation  and  transfer  in  transit  *  *  *  and  handling  of  property  transported." 
Carriers  were  required  "to  provide  and  furnish  such  transportation  upon  rea- 
sonable request  therefor. "'^''^  As  above  stated,  the  act  recognized  that  the  ship- 
per himself  might  own  the  elevator  or  other  facility  included  within  the  definition 
of  transportation  and  provides,  §  4  (34  Stat,  at  L.  590,  chap.  3591,  U.  S.  Comp. 
Stat.  Supp.  1909,  p.  1159),  that  "if  the  owner  *  *  "'  renders  any  service  con- 
nected with  such  transportation,  or  furnishes  any  instrumentality  used  therein, 
the  charge  and  allowance  therefor  shall  be  no  more  than  is  just  and  reasonable," 
the  commission  being  authorized  to  determine  what  is  reasonable.*^'-"^  In  pursu- 
ance of  the  authority  thus  expressly  conferred,  the  interstate  commerce  commis- 
sion, in  April,  1907  (12  Inters.  Com.  Rep.  86),  fixed  the  allowance  for  elevating 


484-89h.  Not  necessarily  unlawful  be- 
cause it  works  a  disadvantage  to  other 
shippers. —  Interstate  Commerce  Comm.  r. 
Diffenbaiigh,  222  U.  S.  42,  56  L.  Ed.  83, 
32  S.  Ct.  22;  Penn  Refin.  Co.  v.  Western, 
etc.,  R.  Co.,  208  U.  S.  208,  52  L.  Ed.  456, 
28    S.    Ct.    268. 

Compensation  to  owners  for  use  of  tank 
cars — Rights  of  shippers  using  barrels. — 
Carriers  can  not  be  charged  with  dis- 
criminating against  shippers  of  oil  in  bar- 
rels from  the  Pennsylvania  oil  fields  to 
Perth  Amboy,  New  Jersey,  because  they 
charge  for  the  barrel  package  without 
making  a  corresponding  charge  upon  ship- 
ments in  tank  cars  owned  by  those  ship- 
pers who  can  afford  to  build  and  furnish 
them,  the  carriers  having  none  of  their 
own,  where  the  transportation  by  tank 
cars  is  more  remunerative  to  the  carriers 
than  the  transportation  by  barrels,  and 
the  barrel  shippers  have  made  no  demand 
for  tank  cars,  and  can  not  use  them 
economically  for  shipments  to  Perth  Am- 
boy on  account  of  the  lack  of  facilities 
for  unloading  at  that  point.  Judgment, 
Western  New  York  &  P.  R.  Co.  v.  Penn 
Refining  Co.  (1905),  137  F.  343,  70  C.  C. 
A.  23,  affirmed.  Penn  Refin.  Co.  v.  West- 
ern, etc.,  R.  Co.,  208  U.  S.  208,  52  L.  Ed. 
456,   28    S.    Ct.   268. 

484-89i.  No  compensation  for  "plant" 
facilities  used  in  getting  property  to  car- 
rier's   road. — Chicago,     etc.,      R.      Co.      v. 


United  States,  156  Fed.  558,  84  C.  C.  A. 
324,  affirmed,  Chicago,  etc.,  R.  Co.  v. 
United  States.  212  U.  S.  563,  53  L.  Ed.  653, 
29    S.    Ct.   689. 

Private  tracks  built  by  the  owner  of  a 
packing  plant  on  its  own  property,  ex- 
tending from  a  connection  with  the  tracks 
of  a  belt  line  railroad  company  to  and 
around  its  buildings,  and  used  in  loading 
cars  for  shipment,  are  not  a  part  of  the 
railroad  system,  but  plant  facilities,  and 
the  refunding  bj^  a  railroad  company, 
which  made  and  published  a  schedule  of 
through  rates,  including  the  belt  line 
charge,  of  $1  per  car  to  such  packing 
company  on  shipments  made  by  it  and 
paid  for  at  the  schedule  rate,  on  the 
ground  that  it  was  a  payment  for  the  use 
of  such  private  tracks,  constituted  the 
giving  of  a  rebate,  in  violation  of  §  1  of 
Elkins  Act  February  19.  1903,  c.  708,  32 
Stat.  847  [U.  S.  Comp.  St.  Supp.  1907,  p. 
880].  Judgment  (1907),  156  F.  558,  84  C. 
C.  A.  324,  affirmed.  Chicago,  etc.,  R.  Co. 
r.  United  States.  212  U.  S.  563,  53  L.  Ed. 
653,  29  S.  Ct.  689. 

484-89J.  Elevator  service  in  connection 
with  shipment  of  grain — In  general. — 
Union  Pac.  R.  Co.  v.  Updike  Grain  Co., 
222   U.    S.   215.  56   L.   Ed.   171.   32   S.   Ct.   39. 

484-89k.  Same — Compensation  author- 
ized.— Union  Pac.  R.  Co.  :■.  Updike  Grain 
Co.,  222  U.  S.  215,  56  L.  Ed.  171,  32  S. 
Ct.  39. 


772 


Vol.  VII. 


IXTERSTATE,  ETC.,  COMMERCE. 


484 


grain  at  three-fourths  of  a  cent  per  hundred  pounds,  being  actual  cost,  with  no 
allowance  whatever  for  profit.  Its  final  order  (14  Inters.  Com.  Rep.  315),  pro- 
hibiting an}-  payment  to  the  owner  who  performed  this  transportation  service,  was 
reversed,  as  being  beyond  the  jurisdiction  of  the  commission,  because  congress 
had  expressly  permitted  such  payment  to  be  made.^"" 

Elevator  Owners  Entitled  to  Equality  of  Treatment. — Xeither  the  car- 
riers nor  the  commission  can  enforce  an  arbitrary  rule  which  would  authorize  the 
payment  of  one  shipper  for  transportation  service  and  deprive  another  of  com- 
pensation for  similar  service.  To  receive  the  benefit  of  such  work  by  one  eleva- 
tor without  ma'king  compensation  therefor  would,  in  effect,  be  the  involuntary 
payment  by  such  elevator  of  a  rebate  to  the  railroad  company,  for  it  would  en- 
able the  railroad  to  receive  more  net  freight  on  its  grain  than  was  received  from 
its  competitor  located  on  the  railroad's  tracks.  This  can  not  be  directly  done, 
nor  indirectly  by  means  of  regulation.  A  rule  apparently  fair  on  its  face  and 
reasonable  in  its  terms  may,  in  fact,  be  unfair  and  unreasonable  if  it  operates  so 
as  to  give  one  an  advantage  of  which  another,  similarly  situated,  can  not  avail  him- 
self.^'^"^ 


484-891.  Same — Order  of  commission 
denying  compensation  reversed. — Inter- 
state Commerce  Conim.  :■.  Dift'enbaugh, 
222  U.  S.  42,  50  L.  Ed.  83,  32  S.  Ct.  22; 
Union  Pac.  R.  Co.  t'.  Updike  Grain  Co., 
222   U.    S.   21.5.   56   L.    Ed.   171,   32    S.   Ct.   39. 

484-89m.  Elevator  owners  entitled  to 
equality  of  treatment. — Union  Pac.  R.  Co. 
:■.  Updike  Grain  Co.,  222  U.  S.  215,  56  L. 
Ed.   171.  32   S.  Ct.  39. 

Denying  compensation  where  owner 
uses  opportunity  to  weigh,  store,  inspect, 
clean,  or  mix  grain. — A  carrier  can  not  re- 
fuse the  allowance  for  elevator  service  on 
through  grain  in  car  loads  at  terminal 
points  to  elevator  owners  who,  through 
ownership  of  the  grain,  derive  an  inciden- 
tal advantage  by  using  the  opportunity 
afforded  during  the  process  of  eleyation 
to  weigh,  store,  inspect,  clean,  mix,  or 
otherwise  treat  the  grain,  in  view  of  the 
provisions  of  Act  June  29,  1906,  c.  3591,  34 
Stat.  584,  590  (U.  S.  Comp.  St.  Supp.  1909, 
p.  1149),  recognizing  that  services  in 
transportation,  rendered  by  an  owner  of 
the  property  transported,  are  to  be  paid 
for  by  the  carrier.  Union  Pac.  R.  Co.  •-'. 
Updike  Grain  Co.,  222  U.  S.  215,  56  L. 
Ed.  171,  32  S.  Ct.  39,  affirming  judgment 
(1910),    178    F.    223,    101    C.    C.    A.    583. 

The  interstate  commerce  commission 
can  not  make  the  allowance  by  a  carrier 
to  the  owner  of  an  elevator  of  the  cost  of 
the  elevation  in  transit  of  grain  in  which 
he  has  an  interest,  conditional  upon  his 
failure  to  use  the  opportunity  afforded 
during  the  process  of  elevation  to  treat, 
weigh,  inspect,  or  mix  the  grain,  since 
sucii  allowance  can  not  be  deemed  an  un- 
due preference  or  discrimination  forbid- 
den by  the  act  to  regulate  commerce,  in 
view  of  the  provisions  of  Amendatorv  Act 
June  29,  1906,  c.  3591,  34  Stat.  584  (U.  S. 
Comp.  St.  Supp.  1909,  p.  1149),  recogniz- 
ing that  services  in  transportation,  ren- 
dered by  an  owner  of  the  property  trans- 


ported, are  to  be  paid  for  by  the  carrier. 
Interstate  Commerce  Comm.  z'.  Diffen- 
baugh,  222  U.  S.  42,  56  L.  Ed.  83,  32  S. 
Ct.  22,  modifying  decree  (C.  C.  1910),  F. 
H.  Peavey  &  Co.  v.  Union  Pac.  R.  Co., 
176    F.    409. 

The  principle  as  to  advantages  is  rec- 
ognized in  Penn  Refin.  Co.  v.  Western, 
etc.,  R.  Co.,  208  U.  S.  208,  221,  52  L.  Ed. 
456,  28  S.  Ct.  268.  The  law  does  not  at- 
tempt to  equalize  fortune,  opportunities, 
or  abilities.  On  the  contrary,  the  act  of 
congress  in  tenns  contemplates  that  if 
the  carrier  receives  services  from  an 
owner  of  property  transported,  or  uses  in- 
strumentalities furnished  by  the  latter,  he 
shall  pay  for  them.  Interstate  Commerce 
Comm.  c'.  Dififenbaugh,  222  U.  S.  42,  56  L. 
Ed.   S3.   32    S.   Ct.  22. 

Making  allowance  conditional  upon  re- 
turn of  car  within  specified  time. — A  car- 
rier can  not  enforce  a  rule  making  its  al- 
lowance for  elevator  service  on  through 
grain  in  carloads  at  terminal  points  con- 
ditional upon  the  return  of  the  emotv  car 
to  the  carrier  within  forty-eight  hours 
after  delivery  to  the  elevator,  so  as  to  de- 
feat the  right  to  compensation  for  ele- 
vator service  rendered  at  elevators  lo- 
cated on  the  lines  of  other  railroads, 
where  the  return  of  the  cars  to  the  car- 
rier was  made  impossible  by  the  rules  of 
a  railway  association  of  which  the  carrier 
was  a  member,  and  over  which  the  ele- 
vator owners  had  no  control,  no  such  im- 
possibility existing  if  the  elevator  was 
one  of  those  located  along  the  carrier's 
tracks.  Union  Pac.  R.  Co.  z\  Updike 
Grain  Co.,  222  U.  S.  215.  56  L.  Ed.  171,  32 
S.   Ct.   39. 

A  carrier  may  make  its  allowance  for 
elevator  service  on  through  grain  in  car- 
loads at  terminal  points  at  elevators  lo- 
cated on  the  lines  of  other  carriers,  as 
well  as  those  located  along  its  own  tracks, 
conditional  upon  the  return  of  the  empty 


773 


484-489 


IXTBRSTATE,  ETC.,  COMMERCE. 


\'o\.  VII. 


3.    Party-Rate  Tickets  and  Reduced  Fares. — See  note  91. 

E.  Undue  Preference  and  Equal  Facilities — 1.  Undue:  Preference's  or 
Advantages  Prohibited — c.  Dissimilarity  of  Circumstances  and  Conditions — 
(3)  Competition — (a)  In  General. — See  ante,  "Competition,"  IV,  D,  1,  b,  (2). 

(b)  As  to  Long  and  Short  Hauls. — See  ante,  "Interests  to  Be  Considered,"  IV, 
C,  4,  c. 

(4)  As  between  Commodities  and  Localities. — As  between  commodities  and 
localities,  special  distinctions  may  be  made  where  there  is  some  basis  therefor  in 
reason  and  in  fact;  distinctions  found,  for  example,  in  the  character  of  the 
freight,  the  risk  of  injury,  the  increased  difficulty  of  handling,  and  the  increased 
damages  which  the  carrier  would  be  called  upon  to  pay  in  case  of  loss  or  iajury 
in  one  case  as  compared  with  another.^^  But  a  rule  or  classification,  although 
couched  in  terms  similarU-  fair  on  their  face,  can  not  be  sustained  where  the 
practical  effect  thereof  is  to  work  an  arbitrary  and  unreasonable  discrimination 
or  preference  as  between  persons,  places,  or  commodities.^'' 


car  to  the  carrier  within  forty-eight  hours 
after  delivery  to  the  elevator,  where  such 
car  can  be  unloaded  and  returned  in  a 
much  shorter  time.  Union  Pac.  R.  Co.  v. 
Updike  Grain  Co.,  222  U.  S.  215,  56  L. 
Ed.  171.  32  S.  Ct.  39. 

Making  allowance  conditional  upon 
grain  being  reshipped  within  a  given  time. 
— Confining  the  allowance  by  a  carrier  to 
the  owner  of  an  elevator  for  elevating- 
grain  in  transit  in  which  he  has  an  in- 
terest, to  such  grain  as  shall  be  reshipped 
within  ten  days,  is  within  the  power  of 
the  interstate  commerce  commission.  In- 
terstate Commerce  Comm.  v.  Diffenbaugh, 
222  U.  S.  42,  56  L-  Ed.  83.  32  S.  Ct.  22, 
modifying  decree  (C.  C.  1910),  F.  H. 
Peavey  &  Co.  r.  Union  Pac.  R.  Co.,  176 
F.   409. 

484-91.  Party  rate  tickets  and  reduced 
fares. — The  express  recognition  in  the 
act  to  regulate  commerce  of  the  power 
of  carriers  engaged  in  interstate  com- 
merce to  issue  nontransferable  reduced- 
rate  excursion  tickets,  when  considered 
with  the  restriction  embodied  in  the  act 
concerning  equalitj^  of  rates,  and  with  the 
prohibition  against  preferences,  must  be 
regarded  as  charging  the  carrier  with  the 
duty  of  exercising  due  diligence  to  pre- 
vent the  use  of  such  tickets  by  other  than 
the  original  purchasers,  and  hence  causes 
the  nontransferable  clause  to  be  operative 
and  effective  against  anyone  who  wrong- 
fully attempts  to  use  such  tickets.  Bitter- 
man  f.  Louisville,  etc.,  R.  Co.,  207  U.  S. 
205,    52    L.    Ed.    171,   28    S.    Ct.   91. 

489-5a.  As  between  commodities  and 
localities. — Interstate  Commerce  Comm. 
V.  Chicago,  etc.,  R.  Co.,  209  U.  S.  108,  52 
L.    Ed.    705,   28    S.    Ct.    493. 

As  between  live  stock  and  dressed 
meats,  packing  house  products,  etc. — The 
cost  of  carriage,  the  risk  of  injury,  and  the 
larger  amount  which  the  railwaj'  com- 
panies are  called  upon  to  pay  out  in  dam- 
ages for  losses  may  excuse  a  higher 
freight  rate  on  live  stock  than  on  dressed 
meats  and  packing  house  products.    Judg- 


ment (C.  C.  1905),  141  F.  1003,  affirmed. 
Interstate  Commerce  Comm.  v.  Chicago, 
etc.,  R.  Co.,  209  U.  S.  108,  52  L.  Ed.  705, 
28   S.   Ct.   493. 

A  reduction  of  freight  rates  for  dressed 
meats  and  packing  house  products  from 
Missouri  river  points  and  other  points 
similarly  situated  to  Chicago,  which  makes 
such  rates  lower  than  those  charged  for 
live  stock,  does  not  work  an  undue  and 
unreasonable  preference,  where  the  higher 
rate  on  live  stock  has  not  materially  af- 
fected any  of  the  markets,  prices,  or  ship- 
ments, being  reasonably  fair  to  Chicago 
and  the  shippers,  and  the  shipments  of 
live  stock  from  the  West  to  Chicago  are 
as  great  in  proportion  to  the  bulk  of  the 
business  as  before  the  change  of  rates, 
and  where  the  lower  rate  given  to  the 
packers  was  the  result  of  competition,  and 
does  not  directly  influence  or  injure  ship- 
pers of  live  stock.  Judgment  (C.  C.  1905), 
141  F.  1003,  affirmed.  Interstate  Com- 
merce Comm.  V.  Chicago,  etc.,  R.  Co.,  209 
U.   S.  108,  52  L.  Ed.  705,  28  S.  Ct.  493. 

489-5b.  Same— Rule  or  classification 
working  undue  preference  of  discrimina- 
tion.— Cincinnati,  etc.,  R.  Co.  v.  Inter- 
state Commerce  Comm.,  206  U.  S.  142,  51 
L.  Ed.  995,  27  S.  Ct.  648;  Union  Pac.  R. 
Co.  V.  Updike  Grain  Co.,  222  U.  S.  215,  56 
L.   Ed.   171,   32   S.   Ct.   39. 

Classification  of  soap  rates  held  to 
create  undue  preference  here. — Where 
common  laundry  soap  in  less  than  car- 
load lots  was  assigned  to  the  fourth  class 
in  the  first  classification  made  under  the 
interstate  commerce  act,  and  was  volun- 
tarily maintained  there  by  defendant  rail- 
road companies  for  more  than  thirteen 
years,  defendants  were  not  justified  in  re- 
classifying such  freight  so  that  it  would 
paj^  20  per  cent  less  than  third  class  rates, 
without  changing  the  car-load  classifica- 
tion, on  the  mere  claim  that  the  prior 
classifications  had  been  inadequate  to  pay 
the  cost  of  carriage  in  less  than  car-load 
lots,  there  having  been  no  general  re- 
classification    which    w'ould     proximately 


74 


Vol.  yii. 


INTERSTATE,  ETC.,  COMMERCE. 


489 


2.    Equal  Facilities — a.  For  Interchange  of  Traffic. — See  note  6. 

b.  Distribution  of  Cars — (1)  In  General — The  governmental  power  of  regula- 
tion extends,  in  time  of  car  shortage,  to  compelling  a  just  and  equal  distribution 
of  cars  among  shippers,  and  to  the  prevention  of  an  unjust  and  discriminatory- 
one.*^^ 


apportion  the  cost  of  the  service  equally 
among  the  difterent  articles  of  traffic  as 
between  car  loads  and  less  than  car-load 
lots.  (C.  C.  1905).  Interstate  Commerce 
Commission  v.  Cincinnati.  H.  &  D.  Ry. 
Co..  146  F.  559,  decree  affirmed  in  Cin- 
cinnati, etc.,  R.  Co.  V.  Interstate  Com- 
merce Comm.,  206  U.  S.  142.  51  L.  Ed. 
995,   27   S.   Ct.   648. 

The  disturbance  in  the  relations  be- 
tween freight  rates  for  soap  in  car  load 
and  less  than  car-load  lots  created  by  ad- 
vancing the  former  from  class  6  to  class 
5,  and  the  latter  from  class  4  to  class  3 
in  a  new  classification  adopted  to  govern 
in  official  classification  territorj^  was  not 
cured  by  classifying  soap  in  less  than  car- 
load lots  at  20  per  cent  less  than  third 
class,  but  not  less  than  fourth  class, 
where  the  result  of  applying  this  modi- 
fied percentage  classification  to  the  vary- 
ing rates  is  to  leave  soap  in  less  than  car- 
load lots  in  the  fourth  class  in  portions  of 
the  territory,  and  in  a  higher  class  in 
other  portions.  Decree,  Interstate  Com- 
merce Commission  v.  Cincinnati,  H.  &  D. 
Ry.  Co.  (C.  C.  1905),  146  F.  559,  affirmed. 
Cincinnati,  etc..  R.  Co.  v.  Interstate  Com- 
merce Comm.,  206  U.  S.  142,  51  L.  Ed.  995, 
27  S.  Ct..  G48. 

Unlawful  preferences  and  discrimina- 
tions are  created  by  fixing  the  freight 
rate  for  common  soap  in  less  than  car-load 
lots  in  a  new  classification  adopted  to 
govern  in  official  classification  territory  at 
20  per  cent  less  than  third  class,  but  not 
less  than  fourth  class,  at  which  that  com- 
modity had  previously  been  rated,  where 
the  result  of  applying  this  classification 
to  the  varying  rates  is  to  leave  soap  in 
less  than  car-load  lots  in  the  fourth  class 
to  a  considerable  extent  in  one  of  the 
subdivisions  of  such  classification  terri- 
tory, and  in  a  higher  class  in  the  other 
subdivision.  Decree,  Interstate  Com- 
merce Commission  v.  Cincinnati,  H.  &  D. 
Ry.  Co.  (C.  C.  1905),  146  F.  559,  affirmed. 
Cincinnati,  etc.,  R.  Co.  v.  Interstate  Com- 
merce Comm.,  206  U.  S.  142,  51  L.  Ed. 
995,    27    S.    Ct.    648. 

489-6.  Facilities  for  interchange  of 
traffic. — There  is  a  great  dift'erence  be- 
tween competing  carriers  claiming  the 
right  to  use  the  facilities  of  one  another, 
and  the  patrons  of  the  same  carrier  con- 
tending for  equality  of  treatment.  South- 
ern Pac,  etc.,  Co.  v.  Interstate  Commerce 
Comm.,  219  U.  S.  498,  55  L.  Ed.  310,  31 
S.  Ct.  279,  distinguishing  Weenis  Steam- 
boat Co.  V.  People's  Steamboat  Co.,  214 
U.  S.  345,  53  L.  Ed.  1024,  29  S.  Ct.  661. 


Switch  connections  with  lateral,  branch 
roads — Refusal  to  establish — Who  may 
complain — Exclusiveness   of   remedy. — By 

the  Act  of  June  29,  1906,  c.  3591,  §  1,  34 
Stat.  584  (U.  S.  Comp.  Stat.  Supp.  1909, 
p.  1149),  it  is  provided,  inter  alia,  that: 
"Any  common  carrier  subject  to  the  pro- 
visions of  this  act,  upon  application  of 
anj'  lateral,  branch  line  of  railroad,  or  of 
any  shipper  tendering  interstate  traffic  for 
transportation,  shall  construct,  maintain, 
and  operate  upon  reasonable  terms  a 
switch  connection  with  any  such  lateral, 
branch  line  of  railroad,  or  private  side 
track  which  may  be  constructed  to  con- 
nect with  its  railroad,  where  such  con- 
nection is  reasonably  practicable  and  can 
be  put  in  with  safety  and  will  furnish  suffi- 
cient business  to  justify  the  construction 
and  maintenance  of  the  same;  and  shall 
furnish  cars  for  the  movement  of  such 
traffic  to  the  best  of  its  ability  without  dis- 
crimination in  favor  of  or  against  any 
such  shipper.  If  any  common  carrier 
shall  fail  to  install  and  operate  any  such 
switch  or  connection  as  aforesaid,  on  ap- 
plication therefor  in  writing  by  any 
shipper,  such  shipper  may  make  com- 
plaint to  the  commission,  as  provided  in 
section  thirteen  of  this  act,  and  the  com- 
mission shall  hear  and  investigate  the 
same  and  shall  determine  as  to  the  safety 
and  practicability  thereof  and  justification 
and  reasonable  compensation  therefor  and 
the  commission  may  make  an  order,  as 
provided  in  section  fifteen  of  this  act,  di- 
recting the  common  carrier  to  comply 
with  the  provisions  of  this  section  in  ac- 
cordance with  such  order,  and  such  order 
shall  be  enforced  as  hereinafter  provided 
for  the  enforcement  of  all  other  orders  by 
the  commission,  other  than  orders  for  the 
payment  of  money."  Under  this  section, 
it  is  held  that  the  rem.edy  given  by  the  act 
on  complaint  by  the  shipper  to  the  com- 
mission, when  an  interstate  carrier  refuses 
to  establish  a  switch  connection  with  a 
lateral,  branch  line,  is  exclusive,  and  that 
the  general  powers  given  by  other  sec- 
tions of  the  statute  can  not  be  deemed  to 
authorize  a  complaint  to  the  commission 
by  the  lateral  branch  railway  company. 
Interstate  Commerce  Comm.  v.  Dela- 
ware, etc..  R.  Co.,  216  U.  S.  531,  54  L. 
Ed.  605,  30  S.  Ct.  415.  affirming  (C.  C), 
166  Fed.  498. 

489-6a.  Distribution  of  cars— In  Geri- 
eral. — Interstate  Commerce  Comm.  :•.  Illi- 
nois, etc.,  R.  Co.,  215  U.  S.  452,  54  L.  Ed. 
280.   30   S.   Ct.   155. 

It  may  not  be  doubted  that  the  equip- 


489 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


(2)  As  betxi-een  Carriers  and  Shippers — (a)  In  General. — It  can  not  be  doubted 
that  this  power  extends  to  compelHng  an  equitable  distribution  as  between  the 
carrier  and  the  shipper,  and  to  preventing  the  carrier  from  unduly  favoring  it- 
self to  the  prejudice  of  shippers  in  allotting  cars  for  hauling  freight  for  its  own 
use;  and  the  power  to  regulate  such  distribution  was  conferred  upon  the  inter- 
state commerce  commission  by  the  Act  of  February  4,  1887,  ch.  104,  §  1,  24  Stat. 
379,  U.  S.  Comp.  1901,  p.  3154.'^'^ 

(b)  Disassociation  of  Carrier  from  Interest  or  Oivncrship  in  Conunodity  Car- 
ried— aa.  Power  of  Congress;  ConstitntionaUt\  of  Act. — The  power  of  congress 
to  regulate  commerce  can  be  constitutionally  so  exerted  as  to  compel  a  railroad 
company  engaged  in  interstate  commerce  to  dissociate  itself  in  interest  from  the 
commodities  which  it  transports  in  interstate  commerce,  even  though,  by  existing 


ment  of  a  railroad  company  engaged  in  in- 
terstate commerce,  included  in  which  are 
its  coal  cars,  are  instruments  of  such 
commerce.  From  this  it  necessarily  fol- 
lows that  such  cars  are  embraced  within 
the  governmental  power  of  regulation, 
which  extends,  in  time  of  car  shortage,  to 
compelling  a  just  and  equal  distribution, 
and  the  prevention  of  an  unjust  and  dis- 
criminatory one.  Interstate  Commerce 
Comm.  V.  Illinois,  etc.,  R.  Co.,  215  U.  S. 
452,  54  L.   Ed.  280,  30  S.   Ct.   155. 

Rules  of  American  Railway  Association 
— Power  of  states. — As  to  the  rules  of  the 
American  Railway  Association  with  re- 
spect to  distribution  of  cars  and  the  power 
of  the  states  to  compel  a  distribution  other- 
wise than  in  accordance  therewith,  see 
ante,  "Facilities  for  Transportation,"  II, 
A,  2,  d,  (23),  (1). 

489-6b.  As  between  carriers  and  ship- 
pers.— -Interstate  Commerce  Comm.  v.  Il- 
linois, etc.,  R.  Co.,  215  U.  S.  452,  54  L.  Ed. 
280,  30  S.  Ct.  155;  Interstate  Commerce 
Comm.  V.  Chicago,  etc.,  R.  Co.,  215  U.  S. 
479,  54  L.  Ed.  291,  30  S.  Ct.  163. 

Distribution  of  coal  cars  as  between 
carrier  and  shippers — Powers  of  commis- 
sion.— Commerce,  in  the  constitutional 
sense,  includes  the  instrumentalities  by 
which  cominerce  is  carried  on,  and  ex- 
tends to  the  coal  cars  owned  by  a  railway 
company  engaged  in  interstate  commerce, 
in  which  it  receives  from  the  tipple  of  the 
coal  mines  along  its  line  coal  purchased 
by  it  and  used  solely  for  its  own  fuel  pur- 
poses. Decree,  Chicago  &  A.  R.  Co.  v. 
Interstate  Commerce  Commission  (C.  C. 
1908),  173  F.  930,  reversed.  Interstate 
Commerce  Comm.  v.  Illinois,  etc.,  R.  Co., 
215  U.  S.  452,  54  L.  Ed.  280,  30  S.  Ct.  155; 
Interstate  Commerce  Comm.  v.  Chicago, 
etc.,  R.  Co.,  215  U.  S.  479,  54  L.  Ed.  291,  30 
S.  Ct.  163. 

Authority  to  regulate  the  distribution 
of  a  railway  company's  fuel  cars  in  times 
of  car  shortage  to  the  bituminous  coal 
mines  along  its  line  was  delegated  to  the 
interstate  commerce  commission  by  the 
act  to  regulate  commerce  (Act  Feb.  4, 
1887,  c.  104,  §  1,  24  Stat.  379  [U.  S.  Comp. 
St.  1901,  p.  3154]),  as  a  means  of  prohibit- 


ing the  unjust  preferences  or  undue  dis- 
criminations forbidden  by  §  3  of  that  act. 
Interstate  Commerce  Comm.  v.  Illinois, 
etc.,  R.  Co.,  215  U.  S.  452,  54  L.  Ed.  280,  30 
S.  Ct.  155. 

Requiring  a  railway  company  in  making 
its  daily  distribution  of  coal  cars  in  times 
of  car  shortage  to  the  bituminous  coal 
mines  on  its  line  to  desist  from  its  practice 
not  to  count  the  company's  fuel  cars 
against  the  share  of  the  mine  receiving 
them  can  not  be  said  to  destroy  the  free- 
dom of  contract,  on  the  theory  that  any 
discriminations  or  preferences  resulting 
from  such  practice  arose  from  the  fact 
that  the  railway  company  chose  to  pur- 
chase coal  for  its  fuel  supply  from  a  par- 
ticular mine  or  mines.  Decree,  Chicago 
&  .A..  R.  Co.  V.  Interstate  Commerce  Com- 
mission (C.  C.  1908),  173  F.  930,  reversed. 
Interstate  Commerce  Comm.  v.  Illinois, 
etc.,  R.  Co.,  215  U.  S.  452,  54  L.  Ed.  280,  30 
S.  Ct.  155;  Interstate  Commerce  Comm. 
V.  Chicago,  etc.,  R.  Co.,  215  U.  S.  479,  54 
L.   Ed.  291,  30  S.  Ct.  163. 

An  order  of  the  interstate  commerce 
commission  com.manding  a  railway  com- 
pany to  desist  from  its  practice  not  to 
take  into  account  the  company's  fuel  cars 
in  the  daily  distribution  of  coal  cars  in 
times  of  car  shortage  to  the  bituminous 
coal  mines  on  its  line,  and  requiring  it  for 
a  future  period  of  two  years  to  count  such 
cars  against  the  share  oi  the  mine  receiv- 
ing them,  is  within  the  authority  delegated 
by  Act  June  29,  1906,  c.  3591,  §  4,  34  Stat. 
589  (U.  S.  Comp.  St.  Supp.  1909,  p.  1158), 
upon  complaint  duly  made,  to  declare  a 
rate  of  practice  affecting  rates  illegal,  and 
to  determine  and  prescribe  for  a  term  not 
exceeding  two  years  what  will  be  a  just 
and  reasonable  rate,  and  what  regulation 
or  practice  in  respect  to  transportation  is 
just,  fair,  and  reasonable  thereafter  to  be 
followed.  Decree,  Chicago  &  A.  R.  Co.  v. 
Interstate  Commerce  Commission  (C.  C. 
1908),  173  F.  930,  reversed.  Interstate 
Commerce  Comm.  z'.  Illinois,  etc.,  R.  Co., 
215  U.  S.  452,  54  L.  Ed.  280,  30  S.  Ct.  155; 
Interstate  Commerce  Comm.  v.  Chicago, 
etc.,  R.  Co.,  215  U.  S.  479,  54  L.  Ed.  291,  30 
S.  Ct.  163. 


776 


Vol.  MI.  IXTERSTATE,  ETC.,  COMMERCE.  489 

stale  laws,  the  railroad  company  may  have  a  lawful  right  of  ownership  or  asso- 
ciation with  the  commodity  upon  which  the  regulation  operates.'" 

Constitutionality  of  Commodities  Clause  of  Hepburn  Act. — Congress 
could  properly  enact,  as  a  regulation  of  commerce,  so  much  of  the  Hepburn  Act 
June  29,  1906,  c.  3591,  34  Stat.  584  (U.  S.  Comp.  St.  Supp.  1907,  p.  892),  as  for- 
bids a  carrier  from  transporting  articles  or  commodities  in  interstate  commerce 
when  they  have  been  manufactured,  mined,  or  produced  by  the  carrier,  or  under 
its  authority,  and,  at  the  time  of  transportation,  such  carrier  has  not,  in  good 
faith,  before  the  act  of  transportation,  dissociated  itself  therefrom,  or  when  the 
carrier  owns  the  article  or  commodity  to  be  transported,  in  whole  or  in  part,  or 
when  the  carrier,  at  the  time  of  transportation,  has  an  interest  therein,  direct  or 
indirect,  in  a  legal  or  equitable  sense,  although,  by  existing  state  legislation,  such 
carrier  may  have  a  lawful  right  of  ownership  of  or  association  with  the  articles 
or  commodities  upon  which  these  provisions  operate.'"'' 

Same — Due  Process  of  Law. — Railway  companies  enjoying  the  right,  under 
existing  state  legislation,  of  ownership  of  or  association  with  the  articles  or  com- 
modities carried,  are  not  denied  the  due  process  of  law  guaranteed  by  Const.  U.  S. 
Amend.  5.  by  so  much  of  the  provisions  of  Hepburn  Act  June  29,  1906,  c.  3591, 
34  Stat.  584  ( U.  S.  Comp.  St.  Supp.  1907,  p.  892),  as  forbids  a  carrier  from 
transporting  articles  or  commodities  in  interstate  commerce  when  they  have  been 
manufactured,  mined,  or  produced  by  the  carrier  or  under  its  authority,  and.  at 
the  time  of  transportation,  such  carrier  has  not  in  good  faith,  before  transporting 
them,  dissociated  itself  therefrom,  or  when  the  carrier  owns  the  article  or  com- 
modity to  be  transported,  in  whole  or  in  part,  or  when  the  carrier,  at  the  time  of 
transportation,  has  an  interest  therein,  direct  or  indirect,  in  a  legal  or  equitable 
sense.^® 

Invalidity  of  Penalties  Clause — Separability  of  Act. — The  possible  in- 
validity of  the  clause  of  the  Hepburn  Act  of  June  29,  1906,  imposing  penalties 
for  violations  of  its  provisions  forbidding  railway  carriers  from  transporting  in 
interstate  commerce  commodities  with  which  they  are  associated,  or  in  which 
they  are  interested,  can  not  affect  the  validity  of  these  provisions,  since  the  penalty 
clause  is  wholly  separable  therefrom."'^' 

Validity  of  Exception  in  Favor  of  Timber  and  Products  Thereof. — The 
exception  in  favor  of  timber  and  manufactured  products  thereof,  contained  in  the 
provisions  of  Hepburn  Act  June  29,  1906,  c.  3591.  34  Stat.  584  (U.  S.  Comp.  St. 
Supp.  1907,  p.  892).  forbidding  railway  carriers  from  transporting  in  interstate 
commerce  articles  or  commodities  with  which  they  are  associated,  or  in  which 
they  are  interested,  does  not  render  the  statute  invalid  for  discrimination.*^^ 

bb.  Common  Purpose  of  the  Act. — The  dissociation  of  railway  companies  prior 
to  transportation  from  the  articles  or  commodities  transported,  whether  such  as- 
sociation result  from  manufacture,  mining,  production,  or  ownership,  or  interest, 
direct  or  indirect,  is  the  common  purpose  of  the  provisions  of  Hepburn  Act  T^ne 
29,  1906,  c.  3591,  34  Stat.  584  ( U.  S.  Comp.  St.  Supp.  1907,  p.  892),  making  it 
unlawful   for  a  railway  carrier  to  transport  in   interstate  commerce  articles  or 

489-6C.     Power  of  congress— In  general.  21-3  U.  S.  366,  53  L.  Ed.  835.  29  S.  Ct.  527, 
— Attorney  General  z\  Delaware,  etc.,  Co.,  reversing-  fC.  C),  164  Fed.  215. 
213  U.  S.  366,  53  L.  Ed.  S35.  29  S.  Ct.  527;  489-6f.     Invalidity   of  penalties   clause- 
United  States  V.  Lehigh  Valley  R.  Co.,  220  Separability  of   act.— Attorney   General  z'. 
U.  S.  257,  55  L.  Ed.  458.  31   S.  Ct.  387.  Delaware,  etc..  Co.,  213  U.  S.  366,  53  L.  Ed. 

489-6d.     Constitutionality    of    commodi-  go^   09  S.  Ct.  527. 

ties    clause    of     Hepburn    Act.-.\ttorntT  ^gg       '     Validity   of  exception  in  favor 

General   :.    Delaware,   etc     Co     213   U.   b.  ^^  ^^^^^^  ^^^  products  thereof.— Attorney 

366,  53  L.  Ed.  83.5    29  b.  Ct.  o2<,  reversing  q^^^^^^,  ^^,    Delaware,   etc..   Co.,   213   U.   S. 

^.S'l  l^^-^e         •     U'-  f    1  366,  53  L.  Ed.  835,  29  S.  Ct.  527. 

489-6e.      Same — Due    process    of   law. —  '        ^ 

Attorney    General    i:    Delaware,    etc..    Co., 


489  INTERSTATB,  ETC.,  COMMERCE.  Vol.  VII. 

commodities  ''manufactured,  mined  or  produced  by  it  or  under  its  authority,  or 
which  it  may  own  in  whole  or  in  part,  or  in  which  it  may  have  an}-  interest,  direct 
or  indirect."*^'' 

cc.  "Railroad"  zvithin  Meaning  of  Act. — A  company,  chartered  to  secure  coal 
lands  and  mine  coal,  and  to  construct  a  canal  and  railroad  for  the  purpose  of  trans- 
porting the  products  of  its  mines,  being  also  engaged  as  a  carrier  by  rail  in  the 
transportation  of  coal  in  the  channels  of  interstate  commerce,  is  a  "railroad  com- 
pany'' within  the  meaning  of  Hepburn  Act  June  29,  1906,  c.  3591,  34  Stat.  584 
(U.  S.  Comp.  St.  Supp.  1907,  p.  892),  prohibiting  such  companies  from  transport- 
ing in  interstate  commerce  commodities  with  which  they  are  associated,  or  in 
which  they  are  interested.^' 

dd.  Character  of  Interest  or  Ozvnership  Forbidden. — Transportation  when  the 
thing  to  be  transported  has  been  manufactured,  mined,  or  produced  by  the  car- 
rier or  under  its  authority,  and  at  the  time  of  transportation  the  carrier  has  not, 
in  good  faith,  before  the  act  of  transportation,  dissociated  itself  therefrom,  or 
when  the  carrier  owns  the  thing  to  be  transported,  in  whole  or  in  part,  or  when 
the  carrier,  at  the  time  of  transportation,  has  an  interest  therein,  direct  or  indi- 
rect, in  a  legal  or  equitable  sense,  is  all  that  is  forbidden  bv  the  provisions  of  the 
Hepburn  Act  June  29,  1906,  c.  3591,  34  Stat.  584  (U.  S.  Comp.  St.  Supp.  1907, 
p.  892),  making  it  unlawful  for  a  railway  carrier  to  transport  in  interstate  com- 
merce articles  or  commodities  ''manufactured,  mined,  or  produced  by  it  or  under 
its  authority,  or  which  it  may  own  in  whole  or  in  part,  or  in  which  it  may  have 
any  interest,  direct  or  indirect.*^^ 

Interest  as  Stockholder. — The  ownership  by  a  railway  carrier  of  stock  in 
a  bona  fide  corporation  manufacturing,  mining,  producing,  or  owning  the  com- 
modity carried  is  not  the  "interest,  direct  or  indirect,"  in  such  commodity,  for- 
bidden to  the  carrier  by  the  Hepburn  Act  June  29,  1906,  c.  3591,  34  Stat.  584 
(U.  S.  Comp.  St.  Supp.  1907,  p.  892),  but  such  words  are  to  be  taken  as  embrac- 
ing only  a  legal  or  equitable  interest  in  the  commodities  to  which  they  refer.^'^ 
But  while  the  decision  in  the  Delaware  and  Hudson  Case  expressly  held  that 
stock  ownership  by  a  railroad  company  in  a  bona  fide  corporation,  irrespective  of 
the  extent  of  such  ownership,  did  not  preclude  a  railroad  company  from  trans- 
porting the  commodities  manufactured,  mined,  produced,  or  owned  by  such  cor- 
poration, it  has  been  held  in  a  subsequent  case  that  nothing  in  that  decision  fore- 
closed the  right  of  the  government  to  question  the  power  of  a  railroad  company 
to  transport  in  interstate  commerce  a  commodity  manufactured,  mined,  owned,  or 
produced  by  a  corporation  in  which  the  railroad  held  stock,  and  where  the  power 
of  the  railroad  company  as  a  stockholder  was  used  to  obliterate  all  distinctions  be- 
tween the  two  corporations.  That  is  to  say,  where  the  power  was  exerted  in  such 
a  manner  as  to  so  commingle  the  affairs  of  both  as  by  necessary  eft'ect  to  make 
such  affairs  practically  indistinguishable,  and  therefore  to  cause  both  cor- 
porations to  be  one  for  all  purposes.'^'  In  view,  therefore,  o.f  the  ex- 
press prohibitions  of  the  commodities  clause,  it  must  be  held  that  while 
the  right  of  a  railroad  company  as  a  stockholder  to  use  its  stock  owner- 
ship for  the  purpose  of  a  bona  fide  separate  administration  of  the  affairs 
of  a  corporation  in  which  it  has  a  ^stock  interest  may  not  be  denied,  the  use 
of  such  stock  ownership  in  substance  for  the  purpose  of  destroying  the  entity 

489-6h.     Common  purpose  of  the  act. —  aware,  etc..  Co.,  213  U.  S.  366,  53  L.  Ed. 

Attorney   General   v.    Delaware,   etc.,   Co.,  S3.'i,  29  S.  Ct.  527. 

213  U.  S.  366,  53  L.  Ed.  835,  29  S.  Ct.  527,  489-6k.        Interest      as      stockholder.— 

reversing  (C.  C),  164  Fed.  215.  Attorney   General   v.    Delaware,   etc.,    Co., 

489-6i.  "Railroad"  within  meaning  of  act.  213  U.  S.  366,  53  L.  Ed.  835,  29  S.  Ct.  527. 

— Attorney  General  v.  Delaware,  etc.,  Co.,  489-61.     Same — Stock  ownership  in  sham 

213  U.  S.  366,  53  L.  Ed.  835,  29  S.  Ct.  527.  corporation.— United     States      v.     Lehigh 

489-6J.     Character  of  interest  or  owner-  Valley  R.  Co.,  220  U.  S.  257,  55  L.  Ed.  458, 

ship  forbidden. — Attorney  General  v.  Del-  31  S.  Ct.  387. 

778 


\'ol.  VII.  IXTERSTATE,  ETC.,  COMMERCE.  489 

of  a  producing,  etc.,  corporation,  and  of  commingling  its  afifairs  in  administra- 
tion with  the  affairs  of  the  railroad  company,  so  as  to  make  the  two  corporations 
virtually  one,  brings  the  railroad  company  so  voluntarih-  acting  as  to  such  pro- 
ducing, etc.,  corporation  within  the  prohibitions  of  the  commodities  clause.  In 
other  words,  that  by  the  operation  and  eft'ect  of  the  commodities  clause  there  is 
a  duty  cast  upon  a  railroad  company  proposing  to  carry  in  interstate  commerce 
the  product  of  a  producing,  etc.,  corporation  in  which  it  has  a  stock  interest,  not 
to  abuse  such  power  so  as  virtually  to  do  by  indirection  that  which  the  commodi- 
ties clause  prohibits — a  duty  which  plainly  would  be  violated  by  the  unneces- 
sary commingling  of  the  aft'airs  of  the  producing  company  with  its  own,  so  as 
to  cause  them  to  be  one  and  inseparable.^™ 

Summary  of  Principles. — Following  the  rule  that  where  a  statute  is  sus- 
ceptible of  two  constructions,  the  court  will  adopt  that  construction  which  will 
s.ustain  the  constitutionality  of  the  act,  rather  than  that  which  renders  it  uncon- 
stitutional, it  is  held  that  the  statute  must  be  construed  as  prohibiting  a  railroad 
company  engaged  in  interstate  commerce  from  transporting  in  such  commerce 
articles  or  commodities  under  the  following  circumstances  and  conditions:  (a) 
\\'hen  the  article  or  commodity  has  been  manufactured,  mined,  or  produced  by 
a  carrier  or  under  its  authority,  and,  at  the  time  of  transportation,  the  carrier 
has  not,  in  good  faith,  before  the  act  of  transportation,  dissociated  itself  from  such 
article  or  commodity;  (b)  when  the  carrier  owns  the  article  or  commodity  to  be 
transported,  in  whole  or  in  part;  (c)  when  the  carrier,  at  the  time  of  transporta- 
tion, has  an  interest,  direct  or  indirect,  in  legal  or  equitable  sense,  in  the  article 
or  commodity,  not  including,  therefore,  articles  or  commodities  manufactured, 
mined,  produced,  or  owned,  etc.,  by  a  bona  fide  corporation  in  which  the  railroad 
company  is  a  stockholder.'^'' 

c.  Lease  or  Monopoly  of  JVliarfagc  Facilities  to  Favored  Shipper. — A  lease 
to  a  shipper  of  one  of  the  piers  and  improvements  thereon,  belonging  to  a  termi- 
nal company,  which  relieves  him  from  the  payment  of  all  wharfage  and  storage 
charges  other  than  as  the  same  may  be  included  in  the  yearly  rental,  and  has  en- 
abled him  to  acquire  practicalh-  a  monopoly  of  the  export  of  certain  products 
from  that  port,  constitutes  an  unlawful  or  undue  preference  under  the  act  to  reg- 
ulate commerce,  where  other  shippers  are  not  and  can  not  be  aft'orded  the  same 
facilities  on  the  same  conditions.'^" 

Jurisdiction  of  Commission  Extends  to  Wharfage  Company  Controlled 
by  Carrier. — A  corporation  created  to  carry  one,  conformably  to  a  municipal 
ordinance  and  a  confirmatory  statute  intended  to  secure  public  shipping  facilities, 
a  wharfage  business  at  a  seaport  and  to  furnish  terminal  facilities  for  a  railway 
and  steamship  system  of  which  it  forms  a  part  and  by  which  it  is  controlled 
through  a  holding  company,  is  a  common  carrier,  and  as  such  is  subject  to  the 
jurisdiction  of  the  interstate  commerce  commission  acting  in  the  exercise  of  its 

489-6m.      Same. — United    States    i'.    Le-  commodities     "manufactured,    mined,     or 

high    Valley  R.    Co.,  220    U.  S.  257,    55    L.  produced  by  it  or  under  its  authority,  or 

Ed.  458,  31  S.  Ct.  387.  which    it    may    own  in    whole    or    in   part, 

The  exercise  by  a  railway  carrier  of  its  or  in  which  it  may  have  any  interest  di- 

power   as   a   stockholder   in   a   corporation  rect  or  indirect."    United  States  z\  Lehigh 

manufacturing,      mining,     producing,      or  Valley  R.  Co.,  220  U.  S.  257,  55  L.  Ed.  458, 

owning    the    commodit}'    carried    in    such  31  S.  Ct.  387. 

manner  as  to  deprive  the  latter  corpora-  489-6n.   Summary   of  principles. — Attor- 

tion  of  all  independent  existence,  and  to  „ev  General  :•.  Delaware,  etc.,  Co.,  213  U. 

make    it    virtually  but    an  agency,  or    de-  S. '366.  53  L.  Ed.  835.  29  S.  Ct.  527. 

pendency,  or  department  of  the  earner,  is  489.60,     Lease   or  monopoly   of  wharf- 

forbidden   by  the   provisions   of   Hepburn  facilities  to  favored  shipper.-South- 

Act  June  29,  1906,  c.  3o91,  34  Stat.  o84  (L.  ^f^^  p                 Co.  z:  Interstate  Commerce 

S.  Comp    St    Supp.  1909,  p.  1149).  making  q^^^     219  y.  S.  498,  55  L.  Ed.  310,  31  S. 

It  unlawful  for  a  railway  carrier  to  trans-  q^   ^^^ 
port    in    interstate    commerce    articles    or 


489-494 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


authority,  under  the  act  to  regulate  commerce,  to  prohibit  undue  preferences. ^p 

Character  of  Commerce  in  Which  Wharfinger  Engaged. — An  order  of 
the  interstate  commerce  commission  forbidding  a  carrier  to  give  an  undue  pref- 
erence in  the  use  of  its  wharves  at  a  seaport  to  an  exporter  of  cotton  seed  prod- 
ucts is  not  a  regulation  of  purely  intrastate  or  purely  foreign  commerce,  which 
would  be  beyond  the  power  of  the  commission,  where  the  cotton  seed  products 
purchased  by  him,  whether  at  points  within  or  without  the  state,  are  all  destined 
for  export,  and  the  concentration  and  manufacture  of  cotton  seed  cake  into  meal 
on  the  wharves  are  but  incidents  in  the  transhipment  of  the  products  in  export 
trade.*^'' 

d.  Spur  Tracks,  Szvitch  Connections,  etc. — Switch  Connection  with  Lateral 
or  Branch  Line. — See  ante,  "For  Interchange  of  Tratitic,"  IV,  E,  2,  a. 

F.  Long  and  Short  Hauls. — See  ante,  "Interests  to  Be  Considered,"  IV,  C. 
4,  c. 

H.  Printed  Schedules  of  Rates  to  Be  Posted — Notice  of  Advance  and 
Reduction — Joint  Rate  Tariffs — 1.  Establishing,  Publishixg  and  Filing 
ScHiiDULEs  OF  Rates,  Fares  and  Charges — a.  Duty  to  Establish  and  Publish 
— Terms  of  Statute. — In  General. — See  note  27. 

Carriers  by  Water  Included  in  Terms  of  Act. — See  ante,  "In  General," 
IV.  P..  1. 

Express  Companies  Included. — See  ante,  "In  General,"  I\',  B,  1. 

Carriers  Engaged  in  Foreign  Trade — Imports  and  Exports — Consti- 
tutionality of  Act. — The  mere  incidental  eitect  upon  exports  which  may  be 
produced  by  applying  to  a  shipment  from  an  interior  point  of  the  United  States 
to  a  foreign  port  the  provisions  of  Elkins  Act  Feb.  19,  1903,  c.  708,  ZI  Stat.  847 
(U.  S.  Comp.  St.  Supp.  1907.  p.  880),  making  it  an  oltense  against  the  United 
States  to  obtain  the  transportation  of  property  in  interstate  or  foreign  commerce 
at  less  than  the  carrier's  published  rates,  does  not  render  such  provisions  repug- 
nant to  Const.  U.  S.,  art.  1,  §  9,  par.  5,  forbidding  the  levving  of  export  taxes  or 
.duties.2'^ 


489-6p.  Jurisdiction  of  commission  ex- 
tends to  wharfage  company  controlled  by 
carrier. — Southern  Pac,  etc.,  Co.  r.  Inter- 
state Commerce  Comm.,  219  U.  S.  498,  55 
L.  Ed.  310,  31  S.  Ct.  279. 

"There  is  a  separation  of  the  companies 
if  we  regard  only  their  charter;  there  is  a 
union  of  them  if  we  regard  their  control 
and  operation  through  the  Southern  Pa- 
cific Company..  This  control  and  opera- 
tion are  the  important  facts  to  shippers. 
It  is  of  'no  consequence  that  by  mere 
charter  declaration  the  terminal  company 
is  a  wharfage  company,  or  the  Southern 
Pacific  a  holding  company.  Verbal  decla- 
rations can  not  alter  the  facts.  The  con- 
trol and  operation  of  the  Southern  Pacific 
Company  of  the  railroads  and  the  terminal 
company  have  united  them  into  a  system 
of  which  all  are  necessary  parts,  the  ter- 
minal company  as  well  as  the  railroad 
companies."  Southern  Pac.  Co.  i'.  Inter- 
state Commerce  Comm..  219  U.  S.  498, 
55  L.  Ed.  310,  31   S.  Ct.  279. 

489-6q.  Character  of  commerce  in  which 
wharfinger  engaged. — Southern  Pac.  Co. 
V.  Interstate  Commerce  Comm.,  219  U.  S. 
498,    55    L.    Ed.    310,    31    S.    Ct.    279.     See, 


also,  ante,  "When  Protection  Attaches," 
I.  A.  4.  a. 

494-27.  Duty  to  establish  and  publish  — 
Terms  of  statute. — That  the  act  imposes 
upon  common  carriers  subject  to  its  pro- 
visions the  duty  of  establishing  in  a  pre- 
scribed mode  the  rates,  whether  individtial 
or  joint,  to  be  charged  for  the  trans- 
portation in  interstate  commerce  of  prop- 
erty over  their  lines,  and  that  the  rates  so 
established  are  obligatory  alike  upon  car- 
rier and  shipper,  and  must  be  strictly  ob- 
served by  both  until  changed  in  the  mode 
prescribed,  are  propositions  which  are  not 
only  plainly  stated  in  the  act,  but  settled 
by  repeated  decisions  of  the  federal  su- 
preme court.  United  States  v.  Miller,  223 
U.  S.  599,  56  L.  Ed.  568,  32  S.  Ct.  323.  See, 
also,  ante,  "General  Purpose  of  Statute," 
IV,  D,  1,  a^S.  (1). 

494-2Ta.  Carriers  engaged  in  foreign 
trade — Imports  and  exports — Constitu- 
tionality of  act. — Armour  Packing  Co.  v. 
United  States,  209  U.  S.  56,  52  L.  "Ed.  681, 
28  S.  Ct.  428.  Aft'irming  judgment  (1907), 
153  F.  1,  82  C.  C.  A.  135;  Chicago,  etc.,  R. 
Co.  V.  United  States,  209  U.  S.  90,  52  L. 
Ed.  698,  28  S.  Ct.  439.  affirmins:  judgment 
(C.  C.  A.  1907),  157  F.  830. 


780 


Vol.  \'ll. 


IXTERSTATE.  ETC.,  COMMERCE. 


494-496 


Same— Preference  of  Ports  of  One   State   over  Those  of  Another.— 

Preference  is  not  given  to  the  ports  of  one  state  over  those  of  another  by  apply- 
ing to  articles  intended  for  foreign  export  the  provisions  of  Elkins  Act  Feb.  19 
1903.  c.  708,  32  Stat.  847  ( U.  S.  Comp.  St.  Supp.  1907,  p.  880),  making  it  an  of- 
fense against  the  United  States  to  accept  transportation  of  goods  in  interstate  or 
foreign  commerce  at  less  than  the  carrier's  published  rates. -''' 

c.  Contents  of  Schedules. — See  note  29. 

d.  Manner  of  Publication. — See  note  32. 

3.  Effp-ct  of  \\\rtaxce  from  Schedule  Rates — a.   In  General. — See  note  36. 


494-27b.  Same — Preference  of  ports  of 
one  state  over  those  of  another. — Armour 
Packing  Co.  v.  United  States,  209  U.  S.  56, 
52  U  Ed.  681,  28  S.  Ct.  428.  Affirming 
judgment  (1907),  153  F.  1,  82  C.  C.  A.  135; 
Chicago,  etc..  R.  Co.  z:  United  States.  209 
U.  S.  90,  52  L.  Ed.  698,  28  S.  Ct.  439,  affirm- 
ing judgment   (C.   C.  A.   1907),   157   F.  830. 

494-29.  Contents  of  schedules — In  gen- 
eral— Stating  terminal  charges  separately. 
— Carriers  separatel}-  state  the  terminal 
charges  for  delivering  live  stock  beyond 
their  own  lines  to  the  Union  Stockyards 
in    Chicago,  as    required  by   Act   June    29. 

1906.  c.  3591,  §    2  (U.  S.  Comp.    St.    Supp. 

1907,  p.  895),  where  their  tariff  schedules 
inform  shippers  that  the  live  stock  rates 
to  Chicago  apply  only  to  deliveries  at  the 
carriers'  own  j'ards  and  that,  for  transpor- 
tation to  the  Union  Stockj^ards,  a  stated 
additional  charge  will  be  made,  the 
amount  of  such  charge  being  entered,  not 
upon  the  general  freight  charges  of  the 
companies,  but  as  a  separate  item.  De- 
cree, Stickney  v.  Interstate  Commerce 
Commission  (1908),  164  F.  638,  affirmed. 
Interstate  Commerce  Comm.  z'.  Stickney, 
215  U.  S.  98,  54  L.  Ed.  112,  30  S.  Ct.  66. 
See.  also,  ante,  "Terminal  Charges."  IV, 
C.  5. 

495-32.  Posting  not  a  condition  prece- 
dent.— Publication  and  posting  in  the  sense 
of  the  act  are  essentially  distinct.  United 
States  v.  Miller.  223  U.  S.  599,  56  L.  Ed. 
568,  32   S.  Ct.  323. 

From  all  the  provisions  on  the  subject 
it  is  evident  that  the  publication  intended 
consists  in  promulgating  and  distributing 
the  tariff  in  printed  form,  preparatorj'  to 
putting  it  into  effect,  while  the  posting  is 
a  continuing  act  enjoined  upon  the  car- 
rier, while  the  tariff  remains  operative,  as 
a  means  of  affording  special  facilities  to 
the  public  for  ascertaining  the  rates  in 
force  thereunder.  In  other  words,  publi- 
cation is  a  step  in  establishing  rates,  while 
posting  is  a  duty  arising  out  of  the  fact 
that  they  have  been  established.  Obvi- 
ously, therefore,  posting  is  not  a  condi- 
tion to  making  a  tariff  legally  operative. 
Neither  is  it  a  condition  to  the  continued 
existence  of  a  tariff'  once  legally  estab- 
lished. If  it  were,  the  inadvertent  or  mis- 
chievous destruction  or  removal  of  one  of 
the  posted  copies  from  a  depot  would  dis- 
establish   or    suspend  the    rates — a    result 


which  evidently  is  not  intended  by  the 
act,  for  it  provides  that  rates  once  law- 
fully established  shall  not  be  changed 
otherwise  than  in  the  mode  prescribed. 
United  States  z\  :\Iiiler.  223  U.  S.  599.  56  L. 
Ed.  568.  32  S.  Ct.  323.  See,  also,  Texas, 
etc..  R.  Co.  V.  Cisco  Oil  Mill,  204  U.  S.  449. 
51  L.  Ed.  562,  27  S.  Ct.  358;  Kansas  City, 
etc.,  R.  Co.  z'.  Albers  Comm.  Co.,  223  U. 
S.  573.  56  L.  Ed.  556,  32  S.  Ct.  316. 

In  none  of  its  expressions  is  there  any 
suggestion  that  posting  is  a  necessary 
step  in  establishing  rates;  that  is,  in  mak- 
ing them  legally  operative.  United  States 
r.  Miller,  223  U.  S.  599,  56  L.  Ed.  568,  32 
S.  Ct.  323. 

Posting,  is  not  essential  to  make  rates 
legally  operative,  and  is  required  only  as 
a  means  of  aft'ording  special  facilities  to 
the  public  for  ascertaining  the  rates  actu- 
all}-  in  force.  Kansas  City,  etc.,  R.  Co.  z'. 
Albers  Comm.  Co..  223  U.  S.  573,  56  L. 
Ed.  556.  32  S.  Ct.  316:  Texas,  etc.,  R.  Co. 
z:  Cisco  Oil  Mill.  204  U.  S.  449,  51  L.  Ed. 
562.  27  S.  Ct.  358. 

Interstate  freight  rates  are  established 
when  schedules  thereof  are  regularly 
printed,  filed  with  the  interstate  commerce 
commission,  and  kept  open  to  public  in- 
spection by  the  carrier  at  its  freight  offi- 
ces, although  such  rates  ma}'  not  be  posted 
in  public  and  conspicuous  places,  as  re- 
quired by  §  6  of  the  Interstate  Commerce 
Act  of  February  4,  1887,  as  am.ended  bj' 
the  Act  of  March  2,  1889,  as  posting  is 
not  essential  to  make  rates  legally  opera- 
tive, but  is  required  only  as  a  means  of 
affording  special  facilities  to  the  public 
for  ascertaining  the  rates  actually  in  force. 
Kansas  Citv,  etc.,  R.  Co.  z'.  Albers  Comm. 
Co..  223  U.'S.  573,  56  L.  Ed.  556,  32  S.  Ct. 
316.  See,  also,  ante,  "Posting  of  Rates 
Not  Necessary  Element  of  Offense,"  IV, 
D,  1.  aV..  do). 

496-36.  Effect  of  variance  from  sched- 
ule rates. — It  is  now  the  established  rule 
that  a  carrier  can  not  depart  to  any  ex- 
tent from  its  published  schedule  of  rates 
for  interstate  transportation  on  file  with- 
out incurring  the  penalties  of  the  statute. 
Louisville,  etc.,  R.  Co.  r.  Mottley,  219  U. 
S.  467.  55  h.  Ed.  297,  31  S.  Ct.  265;  Uniojl 
Pac.  R.  Co.  V.  Goodridge.  149  U.  S.  680, 
691,  37  L.  Ed.  896,  13  S.  Ct.  970;  Gulf,  etc., 
R.  Co.  V.  Hefley.  158  U.  S.  98.  102.  39  L. 
Ed.  910.  15  S.  Ct.  802:  New  York,  etc..  R. 


rsi 


498  IXTERSTATE,  ETC.,  COMMERCE.  \o\.  VII. 

4.  Joint  Tariffs  of  Rates. — Establishment  of  Joint  Tariff — Sanction 
of  Other  Roads — When  Necessary. — The  sanction  of  the  other  roads  to 
schedules  of  freight  rates  containing  a  heading  indicating  their  adoption  by  a 
particular  road  "in  connection  with"  other  designated  railroads,  which  are  the 
roads  over  which  a  haul,  when  there  is  such,  from  common  points  to  the  par- 
ticular railroad  would  be  made,  is  not  essential  to  the  establishment  of  such  rates 
in  a  proceeding  involving  shipments  over  such  railroad  and  a  connecting  line  not 
included  among  the  other  roads  designated,  from  a  city  which  is  not  one  of  the 
common  points.^^"^ 

Applicability  of  Joint  Rate  to  Shipment  over  Connecting  Line  Not 
Specified. — Schedules  of  freight  rates  of  a  designated  railroad,  indicating  that 
they  were  adopted  by  it  "in  connection  with"  other  specified  roads  over  which 
shipments  from  the  common  points,  if  any,  would  be  made,  may  be  applicable  to 
a  shipment  over  a  different  railroad  from  a  city  which  is  not  a  common  point, 
where  such  schedules  do  not  restrict  the  rate  to  shipments  received  from  the 
roads  specified  but  indicate  its  applicability  to  shipments  received  from  any  con- 
necting line.^^"^ 

Rate  Taken  by  Shipments  over  Connecting  Lines  Where  No  Estab- 
lished Joint  Through  Rates. — Shipments  over  connecting  lines,  even  though 
moving  on  through  bills  of  lading,  must,  under  the  Interstate  Commerce  Act, 
take  the  lawfully  established  local  rate  in  force  on  each  line,  where  there  is  no 
established  joint  through  rate.^^*^ 

Same — Validity  of  Agreement  for  Less  than  Established  Local  Rates 
for  Each  Road. — An  agreement  with  a  single  shipper  for  shipments  over  con- 
necting lines  having  no  joint  through  rate,  at  less  than  the  established  local  rates 
for  each  road,  is  void  and  does  not  prevent  the  collecting  of  the  established  local 
rate  by  such  carriers,  under  the  Interstate  Commerce  Act  of  February  4,  1887, 
§  6,  as  amended  by  the  Act  of  Alarch  2,  1889,  providing  the  manner  for  estab- 
lishing rates,  and  making  it  unlawful  for  a  carrier  to  depart  from  any  rate  so 
established  and  in  force  at  the  time  and  requiring  connecting  carriers  agreeing  on 
joint  through  rates  to  file  schedules  with  the  commission,  and  prohibiting  any 
deviation  from  an  established  joint  rate  while  in  force. ^•'^'^ 

Liability  of  Carrier  Participating  in  Joint  or  Through  Rate. — See  ante, 
"Liability  of  Carrier  Participating  in  Joint  or  Through  Rate,"  IV,  D,  1,  aV2,  (11). 

Co.   V.    Interstate    Commerce    Comm.,    200  ments    in  question.      As    applied  to    them 

U.  S.  361,  391,  50  L.  Ed.  515,  26  S.  Ct.  272;  the   rate   was   not  joint,   but  an   individual 

Texas,  etc.,  R.  Co.  v.  Abilene  Cotton  Oil  rate  of  the  garnishee.    The  sanction  of  the 

Co.,  204  U.  S.  426,  439,  51  L.  Ed.  553,  27  S.  other  roads  was  essential  only  to  its   ap- 

Ct.  350.  plication    to  the    haul    from    the    common 

498-43a.     Establishment  of  joint  tariff —  points,    when    there    was    such."      Kansas 

Sanction  of  other  roads — When  necessary.  City,    etc.,  R.    Co.  v.    Albers    Comm.    Co., 

— Kansas     City,    etc.,    R.     Co.    v.     Albers  223  U.  S.  573,  56  L.  Ed.  556,  32  S.  Ct.  310. 

Comm.  Co.,  223  U.  S.  573,  56  L   Ed.  556,  32  498-43b.    Applicability    of    joint    rate    to 

S.   Ct.   316.     See,   also,   ante,   "Liability  of  shipment  over  connecting  line  not  speci- 

Carrier  Participatmg  in  Jomt  or  Through  fied.— Kansas  City,  etc.,   R.   Co.  v.  Albers 

Rate,     IV,  D,  1    a^,  (11).  Comm.  Co.,  223  U.  S.  573,  56  L.  Ed.  556, 

'  it  was  not  shown  that  these  schedules  30  g    q^    ^if, 

were    sanctioned    by    the    other    railroads  "498.430.   Rate  taken  by  shipments  over 

designaed   therein,   they  bemg  the   roads  connecting     lines    where     no    established 

over    which    the    haul    to    the    garnishee  s  ■    •    4.  ^u..Jf,„i,   ^„4.^      t-              r--..         ..       d 

road  from  the  common  points  was  to  be  J°^"*  '^.'^r^^r^'^— ^>;^"^^,%9/^4  ^'5;'  \ 

made  when  the  shipments  were   received  f  Vi  "^ -«' '4 Sf'r"' •,?«•'  ^~^  ^-  ^^  ''^'  "^ 

from    connecting     lines    at    those    points.  -^    -^            y        ^ 

Such  a  showing,  however,  was  not  neces-  498-43d.    Same— Validity    of    agreement 

sary  here.     The  other  roads  had  no  inter-  for   less   than   estabhshed   local   rates   for 

est    in    the  rate    as    applied    to    shipments  each   road.— Kansas    City,    etc.,    R.    Co.    v. 

received  by  the  garnishee  from  the  north-  -^}^^l^  Cornm.  Co.,  223  U.  S.  573,  56  L.  Ed. 

ern  line  at  Kansas  City,  as  were  the  ship-  550,  32  S.  Ct.  316. 


Vol.  ML 


IXTERSTATE,  ETC,  COMMERCE. 


500-502 


J.  Free  Carriage  or  Reduced  Rates.— See  ante,  "Embraces  All  :\Ianner 
of  Carriage,  Gratuitous  or  Otherwise."'  I\'.  D,  1,  a^j.   (4). 

K.  The  Interstate  Commerce  Commission  and  the  Enforcement  of  the. 
Act — 2.  Enforcement  of  Act  and  Consequences  of  \'iolation — a.  General 
Nature  and  Pozcers  of  Commission — (1)  An  Administrative  Board. — See 
note  50. 

b.  Scope  of  Commission  and  Prosecution  of  Proceedings — (1)  Scope  of  Du- 
ties and  Powers  in  General. — See  note  52. 

(2)  Pozver  to  Investigate  and  Require  Information. — See  post,  "Power  to  In- 
vestigate and  Require  Information,"  IV,  K,  2,  b,   (4),  a  1/2. 

(3)  Complaint  or  Suit  by  Persons  Damaged — (c)  Suit  or  Action — >^aa.  Par- 
ties.— Who  May  Complain. — Railway  companies  may  complain  of  a  reduction 
made  bv  the  commission  so  far  as  it  affects  their  revenues,  but  they  may  not  com- 
plain of  it  as  it  may  aft'ect  shippers  or  trade  centers.  The  courts  will  not  listen 
to  a  party  who  complains  of  a  grievance  which  is  not  his.^^'^ 

Same — Of  Refusal  to  Establish  Switch  Connection  with  Lateral  or 
Branch  Road.— The  remedy  given  by  Act  of  June  29,  1906,  c.  3591,  §  1,  34 
Stat.  584  (U.  S.  Comp.  St.  Supp.  1909,  p.  1149),  on  complaint  by  the  shipper  to 
the  interstate  commerce  commission  when  an  interstate  railway  carrier  refuses 
to  establish  a  sv\itch  connection  with  a  lateral,  branch  line,  is  exclusive,  and  the 
general  powers  given  by  other  sections  of  the  statute  can  not  be  deemed  to  au- 
thorize a  complaint  to  the  commission  by  the  lateral,  branch  railway  company.^  ^'^ 

^aa.  Conditions  Precedent  to  Right  to  Invoke  Aid  of  Courts. — Investiga- 
tion, Finding  and  Order  by  Commission  as  Prerequisite  to  Right  to  Re- 
sort to  Courts. — \\'here  the  grievances  complained  of  are  primarily  within  the 
administrative  competency  of  the  interstate  commerce  commission  thev  are  not 


500-50.    An    administrative    board. — The 

interstate  commerce  commission  is  purely 
an  administrative  body.  It  is  true  it  may 
exercise  and  must  exercise  quasi  judicial 
duties,  but  its  functions  are  defined,  and, 
in  the  main,  explicitly  directed,  by  the 
acts  creating  it,  and  it  is  not  the  final 
judge  of  its  own  jurisdiction.  Interstate 
Commerce  Comm.  :■.  Humboldt  Steam- 
ship Co..  224  U.  S.  474,  56  L.  Ed.  849,  32 
S.   Ct.   556. 

501-52.  Scope  of  duties  and  powers  in 
general. — Whatever  may  be  the  power  of 
congress,  it  did  not  attempt,  in  the  Act  of 
February  4,  1887,  c.  104.  24  Stat.  379,  to  do 
more  than  to  regulate  the  interstate  busi- 
ness of  common  carriers,  and  the  prim.ary 
purpose  for  which  the  commission  v.-as  es- 
tablished was  to  enforce  the  regulations 
which  congress  had  imposed.  Harriman 
7'.  Interstate  Commerce  Comm.,  211  U.  S. 
407.   418.  53   L.   Ed.   253.  29   S.   Ct.   115. 

Will  regard  substance  and  not  form. — 
Tariffs  are  but  forms  of  words,  and  the 
commission,  in  the  exercise  of  its  powers 
to  administer  the  Interstate  Commerce 
Act,  can  look  beyond  the  forms  to  what 
caused  them  and  what  they  are  intended 
to  cause  and  do  cause  in  order  to  correct 
inequities  and  preferential  charges.  In- 
terstate Commerce  Comm.  i'.  Baltimore, 
etc.,  R.  Co.,  225  U.  S.  326,  345,  56  L.  Ed. 
1107,  32  S.  Ct.  742. 

502-61a.  Parties,  who  may  complain. — 
Interstate   Commerce   Comm.  z\   Chicago, 


etc.,  R.  Co.,  218  U.  S.  88.  54  L.  Ed.  946,  30 
S.  Ct.  651;  Clark  z\  Kansas  City,  176  U. 
S.  114,  118,  44  L.  Ed.  392,  20  S.  Ct.  284; 
Smiley  t-.  Kansas,  196  U.  S.  447,  49  L.  Ed. 
546,    25    S.    Ct.    289. 

502-61b.  Same— Of  refusal  to  establish 
switch  connection  with  lateral  branch 
road. — Interstate  Commerce  Comm.  i\ 
Delaware,  etc.,  R.  Co..  216  U.  S.  531,  54 
L.  Ed.  605,  30  S.  Ct.  415,  affirming  (C. 
C.^,    166    Fed.    498.  _ 

"We  are  of  opinion  that  the  remedy  is 
exclusive,  on  familiar  principles,  and  that 
the  general  powers  given  by  other  sec- 
tions can  not  be  taken  to  authorize  a 
complaint  to  the  commission  by  a  branch 
railroad  company  under  §  1.  If  they 
were  applicable  to  a  branch  road,  they 
would  have  been  equally  applicable  to 
shippers,  and  there  was  no  more  reason 
to  mention  complaints  by  shippers  than 
by  others.  The  argument  that  shippers 
were  mentioned  to  insure  their  rights  in 
case  of  a  refusal  to  connect  with  a  lateral 
line  is  excluded  by  the  form  of  the  stat- 
ute, which  obviously  is  providing  the  only 
remedy  that  congress  had  in  mind.  It 
may  or  may  not  be  true  that  the  distinc- 
tion is  not  very  eflfective,  but  it  stands  in 
the  law,  and  must  be  accepted  as  the  limit 
of  the  commission's  power."  Interstate 
Commerce  Comm.  f.  Delaware,  etc.,  R. 
Co..  216  U.  S.  531,  54  L.  Ed.  605,  30  S.  Ct. 
415. 


783 


502 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


subject  to  be  judicially  enforced  until  that  body  has  been  afforded,  by  a  com- 
plaint made  to  it,  opportunity  to  exert  its  administrative  functions.  In  the 
.long  interval  which  intervened  between  1887  when  the  act  to  regulate  com- 
merce was  enacted,  and  June  18,  1910,  when  the  Commerce  Court  Act  was 
passed,  there  was  no  instance  where  it  was  held  or  even  seriously  asserted, 
that  as  to  subjects  which  in  their  nature  were  administrative  and  within 
the  competency  of  the  commission  to  decide,  there  was  power  in  a  court, 
by  an  exercise  of  original  action,  to  enforce  its  conceptions  as  to  the  mean- 
ing of  the  act  to  regulate  commerce  by  dealing  directly  with  the  subject 
irrespective  of  any  prior  affirmative  command  or  action  by  the  interstate 
commerce  commission.  On  the  contrary,  by  a  long  line  of  decisions,  whereby 
applications  to  enforce  orders  of  the  commission  were  considered  and 
disposed  of  or  where  requests  to  restrain  the  enforcement  of  such  orders  were 
passed  upon,  it  appears  by  the  reasoning  indulged  in  that  it  was  never  considered 
that  there  was  power  in  the  courts  as  an  original  c[uestion  without  previous  af- 
firmative action  by  the  commission  to  deal  with  what  might  be  termed  in  a 
broad  sense  the  administrative  features  of  the  act  to  regulate  commerce  by  de- 
termining as  an  original  question  that  there  had  been  a  compliance  or  noncom- 
pliance with^the  provisions  of  the  act.^^^ 


502-61C.  Conditions  precedent  to  right 
to  invoke  aid  of  courts — Investigation, 
finding  and  order  by    the     commission. — 

Procter,  etc.,  Co.  i'.  United  States,  225  U. 
S.  282,  296,  56  L.  Ed.  1091,  32  S.  Ct.  761, 
citing,  as  illustrating  and  making  clear 
the  point,  Oregon  R.,  etc.,  Co.  v.  Fair- 
child,  224  U.  S.  510,  56  L.  Ed.  863, 
32  S.  Ct.  535;  Robinson  v.  Baltimore,  etc., 
R.  Co.,  222  U.  S.  506,  56  L.  Ed.  288.  32  S. 
Ct.  114;  Southern  R.  Co.  v.  Reid,  222  U. 
S.  424,  56  L.  Ed.  257,  32  S.  C.  140;  Texas, 
etc.,  R.  Co.  V.  Abilene  Cotton  Oil  Co., 
204  U.  S.  426,  51  L.  Ed.  553,  27  S.  Ct.  350; 
Baltimore,  etc.,  R.  Co.  v.  Pitcairn  Coal 
Co.,  215  II.  S.  481,  54  L.  Ed.  292,  30  S.  Ct. 
164;  Southern  R.  Co.  v.  Tift,  206  U.  S. 
428,  51  L.  Ed.  1124,  27  S.  Ct.  709;  Robin- 
son V.  Baltimore,  etc.,  R.  Co.,  222  U.  S. 
506,  56  L.  Ed.  288,  32  S.  Ct.  114,  affirming 
64  W.  Va.  406,   63  S.   E.  323. 

When  the  purpose  of  the  act  and  the 
means  selected  for  the  accomplishment  of 
that  purpose  are  understood,  it  is  alto- 
gether plain  that  the  act  contemplated 
that  such  an  investigation  and  order  by 
the  designated  tribunal,  the  interstate 
commerce  commission,  should  be  a  pre- 
requisite to  the  right  to  seek  reparation 
in  the  courts  because  of  exactions  under 
an  established  schedule  alleged  to  be 
violative  of  the  prescribed  standards.  And 
this  is  so,  because  the  existence  and  ex- 
ercise of  a  right  to  maintain  an  action  of 
that  character,  in  the  absence  of  such  an 
investigation  and  order,  would  be  re- 
pugnant to  the  declared  rule  that  a  rate 
established  in  the  mode  prescribed  should 
be  deemed  the  legal  rate,  and  obligatory 
alike  upon  carrier  and  shipper  until 
changed  in  the  manner  provided,  would 
be  in  derogation  of  the  power  expressly 
delegated  to  the  commission,  and  would 
be    destructive    of     the      uniformity      and 


equality  wliicli  the  act  was  designed  to 
secure.  Robinson  t'.  Baltimore,  etc.,  R.  Co., 
222  U.  S.  506,  56  L.  Ed.  288,  32  S.  Ct.  114. 
See,  also,  Texas,  etc.,  R.  Co.  v.  Abilene 
Cotton  Oil  Co.,  204  U.  S.  426,  440,  51  L. 
Ed.  553,  27  S.  Ct.  350. 

"The  statute  (Act  of  February  4,  1887, 
c.  104,  24  Stat.  379),  while  it  created  new 
rights  in  favor  of  shippers,  in  order  to 
make  those  rights  fruitful  as  to  the  sub- 
jects with  which  the  statute  dealt  coming 
within  the  scope  of  the  administrative 
unit}'  which  we  have  mentioned  primarily 
made  the  judgment  of  the  administrative 
body  to  whom  the  statute  confided  the 
entorcement  of  the  act  in  the  respects 
stated  a  prerequisite  to  a  resort  to  the 
courts.  In  other  words,  as  to  the  sub- 
jects stated,  the  act  did  not  give  to  the 
courts  power  to  hear  the  complaint  of  a 
party  concerning  a  violation  of  the  act, 
but  only  conferred  power  to  give  effect 
to  such  complaints,  when  by  previous  sub- 
mission to  the  commission,  they  had  been 
sanctioned  by  a  command  of  that  body.'" 
Procter,  etc.,  Co.  v.  United  States,  225  U. 
S.  282;  296,  56  L.  Ed.  1091,  32  S.  Ct.  761. 

The  decision  in  Southern  R.  Co.  v.  Tift, 
206  U.  S.  428,  51  L.  Ed.  1124,  27  S.  Ct. 
709,  does  not  qualify  the  ruling  in  the 
Abilene  Case,  and  is  not  an  authority  sup- 
porting the  right  to  resort  to  the  courts  in 
advance  of  action  by  the  commission  for 
lelief  against  unreasonable  rates  or  un- 
just discriminatory  practices  which,  from 
their  nature,  primarily  require  action  by 
the  commission.  Baltimore,  etc.,  R.  Co. 
V.  Pitcairn  Coal  Co.,  215  U.  S.  431,  54  L. 
Ed.    292,    30    S.    Ct.    164. 

Grievances  with  respect  to  distribution 
of  coal  cars. — The  grievances  produced  by 
regulations  adopted  by  a  railway  com- 
pany for  the  distribution  of  coal  cars  in 
times   of   car   shortage   to   the   bituminous 


784 


Vol.  VII. 


INTERSTATE,  ETC.,  COMMERCE. 


502 


Effect  of  Provision  with  Respect  to  Preservation  of  Existing  Reme- 
dies.— Investigation  by  the  interstate  commerce  commission  and  an  appropriate 
finding  and  order  are  prerequisite  to  the  right  of  a  shipper  to  maintain  an  action 
to  recover  from  a  carrier  the  excess  which  he  claims  to  have  paid  under  a  reg- 
ularly established  and  published  rate  which  is  attacked  as  unjustly  discriminatory, 
notwithstanding  the  provisions  of  the  Act  of  Feb.  4,  1887,  c.  104,  §  22,  24  Stat. 
387  (U.  S.  Comp.  St.  1901,  p.  3170),  that  nothing  therein  contained  "shall  in 
any  way  abridge  or  alter  the  remedies  now  existing  at  common  law  or  by  statute, 
but  the  provisions  of  this  act  are  in  addition  to  such  remedies. "^'i'^ 

Proceeding  Suspended  Pending  Action  by  the  Commission— Subse- 
quent Proceedings. — The  rule  that  an  action  at  law  to  recover  excessive  inter- 
state freight  charges  can  not  be  maintained  in  advance  of  action  by  the  interstate 
commerce  commission  will  not  prevent  a  federal  circuit  court  which  has  sus- 
pended proceedings  on  a  bill  seeking  relief  from  an  advance  in  freight  rates, 
pending  action  bv  the  commission,  from  granting  relief  in  the  exercise  of  its 
powers  under  Act  Feb.  4,  1887,  c.  104,  §  16,  24  Stat.  379  [U.  S.  Comp.  St.  1901, 
p.  3154],  as  a  court  of  equity,  on  a  petition  filed  after  the  commission  has  acted, 
stating  the  substance  of  the  findings  of  the  commission,  and  containing  a  copy 
of  its  report  and  opinion,  where  defendants  have  stipulated  in  open  court  that, 
in  case  complainants  prevailed,  decree  of  restitution  might  be  made.^^^ 

Matters  of  Judicial  Character — Duties  So  Plain  as  Not  to  Require 
Previous  Action  by  the  Commission. — Where  the  questions  involved  are  of 
a  judicial  character,  not  suitable  to  be  determined  by  a  purely  administrative 
body,  as  in  the  case  of  matters  involving  questions  of  general  law.  or  where  the 
complaint  relates  to  the  performance  of  duties  which  are  so  plain  and  so  inde- 
pendent of  previous  administrative  action  of  the  commission  as  not  to  require 
a  prerequisite  exertion  of  power  by  that  body,  resort  may  be  had  to  the  courts 
direct.*^^^ 


coal  mines  served  by  it,  which  are  alleged 
to  violate  the  provisions  of  the  act  to 
regulate  commerce  of  February  4,  1S87 
(24  Stat,  at  L.  380,  chap.  104),  prohibiting 
unjust  preferences  or  undue  discrimina- 
.tions,  can  not  be  redressed,  in  advance  of 
the  action  of  the  interstate  commerce 
commission,  by  mandam.us  to  prohibit  the 
acts  complained  of  and  prescribe  a  rule 
or  regulation  for  the  future,  since  the 
provisions  of  the  Act  of  March  2,  1S89 
(25  Stat,  at  L.  862,  chap.  382,  U.  S.  Comp. 
Stat.  1901,  p.  3172),  §  10,  authorizing 
mandamus  to  compel  the  furnishing  of 
cars  and  other  facilities  for  transporta- 
tion, must  be  limited  either  to  the  per- 
formance of  duties  which  are  so  plain 
and  so  independent  of  previous  adminis- 
trative action  of  the  commission  as  not 
to  require  a  prerequisite  exertion  of 
power  by  that  body,  or  to  compelling  the 
performance  of  duties  which  plainlj'  arise 
from  the  obligatory  force  which  the  stat- 
ute attaches  to  the  orders  of  the  commis- 
sion, rendered  within  the  lawful  scope  of 
its  authority,  imtil  set  aside  by  the  com- 
mission or  enjoined  by  the  courts.  Balti- 
more, etc.,  R.  Co.  V.  Pitcairn  Coal  Co., 
215  U.  S.  481,  54  L.  Ed.  292,  30  S.  Ct.  164. 
The  controversy  is  controlled  by  the 
considerations  which  governed  the  ruling 
made    in    Texas,    etc.,    R.    Co.    f.    Abilene 


Coll  on  Oil  Co..  204  U.  S.  426,  51  L.  Ed. 
5.53,  27  S.  Ct.  350:  Baltimore,  etc..  R.  Co. 
v.  Pitcairn  Coal  Co.,  215  U.  S.  481,  54  L. 
Ed.    292,    30    S.    Ct.    164. 

502-61d.  Effect  of  provision  with  re- 
spect to  preservation  of  existing  reme- 
dies.— Robinson  v.  Baltimore,  etc.,  R.  Co., 
222  U.  S.  506,  56  L.  Ed.  288,  32  S.  Ct.  lU, 
affirming  64   W.   Va.   406,   63   S.   E.   323. 

502-61e.  Proceedings  suspended  pend- 
ing action  by  commission — Subsequent 
proceedings. — Southern  Iv.  Co.  f.  Tift, 
206  U.  S.  42S,  51  L.  Ed.  1124,  27  S.  Ct. 
709.   affirming    (C.    C),    138    Fed.   753. 

502-61f.  Matters  of  judicial  character — 
Duties  so  plain  as  not  to  require  previous 
action  by  the  commission. — Louisville, 
etc..  R.  Co.  v.  Cook  Brewing  Co.,  223 
U.  S.  70,  56  L.  Ed.  355,  32  S.  Ct.  189;  Bal- 
timore, etc.,  R.  Co.  t'.  Pitcairn  Coal  Co., 
215  U.   S.  481,  54  L.  Ed.  292,  30  S.   Ct.  164. 

Refusal  of  carrier  to  accept  interstate 
shipment  of  intoxicating  liquors. — A 
.'iliipper  seeking  relief  because  of  the  re- 
fusal of  a  carrier  to  accept  interstate  ship- 
ments of  intoxicating  liquors  consigned 
to  local  option  or  ''dry''  points,  which  the 
carrier  seeks  to  justify  under  a  state 
statute  forl)idding  the  transportation  of 
such  shipments,  wliicli  is  attacked  as  an 
milawful  regulation  of  commerce,  may  in- 
voke the  jurisdiction  of  the  courts  without 


12  U  S  Enc- 


50 


r85 


503-505  INTERSTATE,  ETC.,  COMMERCE.  Vol.  VII. 

aa.    Jurisdiction. — Of  Federal  Courts — Generally. — See  note  62. 

Of  Action  to  Enforce  Liability  of  Initial  Carrier  under  Carmack  Amend- 
ment.— See  ante,  "Liability  of  Carrier,"  II,  A,  1,  b,  (3),  (b),  dd,  (ff). 

Of  Action  Arising  under  Employers'  Liability  Act. — See  ante,  "Employ- 
ers' Liability  Acts,"  II,  A,  b,   (3),   (b),  dd,   (cc>^),  eee. 

cc.  Action  to  Recover  Unreasonable  Charges. — Final  Decree — Order  of 
Reference. — The  final  decree  of  a  federal  circuit  court  in  the  proceedings  pros- 
ecuted under  Act  Feb.  4,  1887,  c.  104,  §  16,  24  Stat.  379  [U.  S.  Comp.  St.  1901,  p. 
3154],  after  action  by  the  interstate  commerce  commission  declaring  an  increased 
freight  rate  to  be  unreasonable,  may  direct  an  order  of  reference  to  the  standing 
master  of  the  pleadings  and  evidence  in  the  cause,  with  instructions  to  ascertain 
the  sum  of  the  increase  in  rates  paid  since  the  rate  went  into  effect,  where  de- 
fendants stipulated  in  open  court  that,  in  case  complainants  prevailed,  a  decree 
of  restitution  might  be  made.^*^'^ 

(4)  Proceedings  on  Commission's  Ozun  Motion — (a)  Poiifer  Generally. — 
See  ante,  "Scope  of  Duties  and  Powers  in  General,"  IV,  K,  2,  b,   (1). 

(a^^)  Pozver  to  Investigate  and  Require  Information — aa.  Generally  zvith 
Respect  to  Attendance  of  Witnesses  and  Production  of  Evidence. — The  com- 
mission is  given  power  to  require  the  testimony  of  witnesses  "for  the  purposes 
of  this  act,"  and  the  purposes  of  the  act  for  which  the  commission  may  exact 
evidence  embrace  only  complaints  for  violation  of  the  act,  and  investigations  by 
the  commission  upon  matters  that  might  have  been  made  the  object  of  com- 
plaint."^ ^^  The  main  purpose  of  the  act  was  to  regulate  the  interstate  business 
of  carriers,  and  the  secondary  purpose,  that  for  which  the  commission  was  es- 
tablished, was  to  enforce  the  regulations  enacted.  These  are  the  purposes  here 
referred  to;  in  other  words,  the  power  to  require  testimony  is  limited,  as  it 
usually  is  in  English  speaking  countries  at  least,  to  the  only  cases  where  the  sac- 
rifice of  privacy  is  necessary,  namely,  those  where  the  investigation  concerns  a 
specific  breach  of  the  law."-^ 

first  applying  to  the  interstate  commerce  merce   Comm.,   211   U.    S.   407,   419,   53   L,. 

commission,    since    the    question   involved  Ed.  253,  29  S.  Ct.  115. 

is  one  of  general  law,  for  a  iudicial  tribu-  505-72b.     Same — Limited    to     investiga- 

nal  and  one  not  competent  for  the  com-  tions    concerning    specific    breach    of    the 

mission  as  a  purely  administrative  body.  law   and  matters  which  might  have  been 

Louisville,   etc.,   R.   Co.  v.   Cook   Brewin;^  made  the  object  of  complaint. — Harriman 

Co.,  223  U.  S.  70,  56  L.  Ed.  355,  32  S.  Ct.  v.    Interstate    Commerce    Comm..    211    U. 

189.  S.  407,  419,  53  L.  Ed.  253,  29  S.  Ct.  115. 

503-62.   Jurisdiction — Of   federal   courts,  Witnesses  can  not  be  required  to  testify 

generally. — A  case  arising  upon  a  bill  to  before    the    interstate   cominerce   commis- 

enjoin  interstate  carriers  from  putting  into  sion  except  in  connection  with  complaints 

effect  alleged  unreasonable  rates  is  a  case  for  violation  of  the   Interstate  Commerce 

arising  imder  the  constitution  and  laws  ot  y\ct  or  with  the  investigation  by  the  com- 

the   United   States,   since   the   right  to   be  mission  of  subjects  that  might  have  been 

exempt   from   such   unlawful   exactions   is  made   the    object   of  complaint,   these   be- 

one  protected  by  the  Interstate  Commerce  ing  the  only  matters  contemplated  by  the 

Act  as   well   as   the   Anti-Trust   Act,   and,  provision  of  §  12  of  that  act,   giving  the 

of  necessity,   in   determining   the   right   to  conimission    power    to    require    testimony 

the  relief  prayed  for,  a  construction  of  the  "for    the    purposes    of    this    act,"    which 

act    to    regulate    commerce    is    essentially  power  can  not  be  exercised  by  the  coni- 

involved.     Macon  Grocery  Co.  v.  Atlantic,  mission  in  performing  its  duty  under  that 

etc.,  R.   Co..  215  U.  S.  501,  508,  54  L.   Ed.  section   to  keep   itself  informed  as   to  the 

300,  30  S.  Ct.  184.  manner  and  method  in  which  the  business 

504-66a.     Final   decree,    order    of    refer-  of  common  carriers  is  conducted,   nor  in 

ence. — Southern   R.   Co.   v.  Tift,  206   U.   S.  connection   with    the    enforcement    of    the 

428,  51   L.   Ed.   1124,  27  S.   Ct.  709,  affirm-  requirement     of   §    20    respecting     reports 

ing  (C.  C),  138  Fed.  753.  by     carriers,     nor    to     aid    the     commis- 

505-72a.    Generally,  with  respect  to  at-  sion     in    recommending,     pursuant    to     § 

tendance   of  witnesses   and  production  of  21.  additional  legislation  to  congress.    Or- 

evidence. — Harriman  v.    Interstate     Com-  ders   (C.  C),  157  F.  432,  affirmed  in  part 

786 


Vol.  \MI.  IXTBRSTATB,  ETC.,  COMMERCE.  505 

bb.  Pozver  to  Prescribe  Sysfon  of  Accounting,  to  Call  for  Reports,  etc. — Con- 
stitutionality of  Provision. — Congress  did  not  exceed  its  power  under  the 
commerce  clause  by  enacting  the  Act  of  February  4,  1887,  §  20,  as  amended  by 
the  Act  of  June  29,  1906,  under  which  common  carriers  by  water  upon  the 
Great  Lakes,  engaged  in  the  transportation  of  passengers  and  property  partly 
by  water,  under  a  joint  arrangement  for  the  continuous  carriage  or  shipment, 
may  be  required  by  the  interstate  commerce  commission  to  adopt  a  uniform  sys- 
tem of  accounting  and  bookkeeping,  and  to  make  annual  reports,  which  shall 
embrace  not  only  the  joint  rail  and  water  business,  but  the  other  business  of  the 
carriers  as  well,  such  as  their  port  to  port  business,  both  intrastate  and  inter- 
state, and  the  business  of  operating  amusement  parks.'^^'^ 

Same — Delegation  of  Legislative  Authority. — Leaving  to  the  interstate 
commerce  commission  the  carrying  out  of  details  in  the  exercise  of  its  discre- 
tion under  the  Act  of  February  4,  1887,  §  20,  as  amended  by  the  Act  of  June  29, 
1906,  to  prescribe  a  uniform  system  of  accounting  and  bookkeeping  for  the  car- 
riers subject  to  that  act,  does  not  render  such  section  invalid  as  a  delegation  of 
legislative  authority  J  ^^ 

Scope  of  Authority  of  Commission  with  Respect  to  Accounts  and  Re- 
ports.— As  to  accounts,  the  statute  permits  the  commission,  in  its  discretion,  for 
the  purpose  of  enabling  it  the  better  to  carry  out  the  purposes  of  the  act,  to  pre- 
scribe a  period  of  time  within  which  such  common  carriers  shall  have  a  uniform 
system  of  accounts  and  the  manner  in  which  such  accounts  shall  be  kept.  The 
commission  may,  the  statute  provides,  in  its  discretion,  prescribe  the  forms  of  all 
accounts,  records,  and  memoranda  to  be  kept  by  the  common  carriers,  to  which 
accounts  the  commission  shall  have  access.  And  the  act  makes  it  unlawful  for 
the  carriers  to  keep  any  accounts,  records,  or  memoranda  other  than  those  pre- 
scribed by  the  commission.  This  section  contains  ample  authority  for  the  com- 
mission to  require  a  system  of  accounting  and  reports  such  as  has  been  pro- 
vided for  in  its  orders.  And  it  is  immaterial  that  the  accounts  required  to  be 
kept  are  general  in  their  nature,  and  embrace  business  other  than  such  as  is 
necessary  to  the  discharge  of  the  duties  required  in  carrying  passengers  and 
freight  in  interstate  commerce  by  joint  arrangement  between  railroads  and  car- 
riers by  water,  since  the  commission  is  charged  under  the  law  with  the  super- 
vision of  such  rates  as  to  their  reasonableness,  and  with  the  general  duty  of 
making  reports  to  congress  which  might  require  a  knowledge  of  the  business  of 
the  carrier  beyond  that  which  is  strictly  of  the  character  mentioned.  If,  there- 
fore, the  commission  is  to  successfully  perform  its  duties  in  respect  to  reasonable 
rates,  undue  discriminations,  and  favoritism,  it  must  be  informed  as  to  the  busi- 
ness of  the  carriers  by  a  system  of  accounting  which  will  not  permit  the  possible 
concealment  of  forbidden  practices  in  accounts  w^hich  it  is  not  permitted  to  see, 
and  concerning  which  it  can  require  no  information."-^ 

and  reversed  in  part.     Harriman  z'.  Inter-  ing  upon  any  part  of  what  it  has  in  mind 

.state    Commerce    Comm.,    211    IJ.    S.    407,  is  not  warranted   by  the  act   itself.     Harri- 

53  L.  Ed.  2.5o,  29  S.  Ct.  115.  man  v.   Interstate   Commerce   Comm.,   211 

The  contention  of  the  interstate  com-  U.  S.  407,  417.  53  L.  Ed.  253._  29  S.  Ct.  115^ 
merce  commission  that  it  may  make  any  505-72c.    Power  to  prescribe  system  of 

investigation    that    it    deems    proper,    not  accounting  and  reports— Constitutionality 

merely   to    discover   anv   facts    tending   to  o*       provision.  —  Tnlerstale       Commerce 

defeat    the    purposes    o'f  the    Act  of    Feb-  Comm.    v.    Goodrich    Transit    Co.,    224   U. 

ruarv    4,    1887,    bin    to    aid   in    recommend-  ^-   '^^■^-  »6  L.   Ed.  ~~9.  ,32   b.   Ct.  4.?d      _ 

ing  any  additional  legislation   relating  to  ,  505-72d.     Same— Delegation    of    legisla- 

the    regulation   of  commerce   that   it   may  tive       authority —Interstate       Commerce 

conceive  to  be  within  the  power  ot  con-  Comm.   v.    Goodrich    Transit    Co.,   224    U. 

gress    to   enact;    and   that   in    such    an    in-  ^-   19-^.   50   L.   Ed.   729,   .',2   b.   Ct.   4.^0. 
vcstigation  it  has  power,  witli  the  aid  of  505-72e.    Scope  of  authority  of  commis- 

the  courts,  to  require  any  witness  to  an-  sion  with  respect  to  accounts  and  reports, 

swer  any  question  that  may  have  a  bear-  — Interstate    Commerce    Comm.    v.    Good- 

787 


505  INTERSTATE,  ETC.,  COMMERCE.  Vol.  MI. 

Not  a  Regulation  of  Business  of  Carriers. — The  requiring  of  information 
.concerning  the  business  methods  of  such  corporations,  as  shown  in  its  accounts, 
is  not  a  regulation  of  business  not  within  the  jurisdiction  of  the  commission. 
The  object  of  requiring  such  accounts  to  be  kept  in  a  uniform  way,  and  to  be 
open  to  the  inspection  of  the  commission,  is  not  to  enable  it  to  regulate  the  af- 
fairs of  the  corporations  not  within  its  jurisdiction,  but  to  be  informed  concern- 
ing the  business  methods  of  the  corporations  subject  to  the  act,  that  it  may 
properly  regulate  such  matters  as  are  really  within  its  jurisdiction.  Further,  the 
requiring  of  information  concerning  a  business  is  not  regulation  of  that 
business.  The  necessity  of  keeping  such  accounts  has  been  developed  in  the 
reports  of  the  commission,  and  had  been  the  subject  of  great  consideration.  It 
has  caused  the  employment  of  those  skilled  in  such  matters,  and  has  resulted  in 
the  adoption  of  a  general  form  of  accounting  which  will  enable  the  commission 
to  examine  into  the  affairs  of  the  corporations,  with  a  view  to  discharging  its 
duties  of  regulation  concerning  them.'^^f 

As  to  Corporations  Organized  under  State  Laws. — Corporations  organ- 
ized under  state  laws,  engaged  in  interstate  carriage,  could  validly  be  subjected 
to  regulation  and  control  by  the  interstate  commerce  commission,  in  the  exercise 
of  its  power,  under  the  Act  of  February  4,  1887,  §  20,  as  amended  by  the  Act 
of  June  29,  1906,  to  prescribe  a  uniform  system  of  accounting  and  bookkeeping 
and  to  require  annual  reports." -= 

cc.  Presumption  and  Burden  of  Proof. — As  to  Reasonableness  of  Rates. 
— No  presumption  of  law  that  a  freight  rate  upon  a  particular  commodity  is 
reasonably  low  exists  because  such  rate  has  been  duly  published  and  filed  by  the 
carrier  with  the  interstate  commerce  commission."-*^ 

Presumption  upon  Change  of  Rates. — There  is  no  presumption  of  wrong 
arising  from  a  change  of  rates  by  a  carrier."-' 

dd.  AdmissibUity  of  Evidence. — See  ante,  "Generally  with  Respect  to  At- 
tendance of  A\'itnesses  and  Production  of  Evidence,"  I\',  K,  2,  b,  (4), 
(a>^),  aa. 

ee.  Self -Incriminating  Disclosures. — See,  generally,  ante.  Constitutional 
Law,  p.  264. 

Nature  and  Extent  of  Protection  Afforded  by  Statute. — A  shield  against 
successful  prosecution,  available  to  the  accused  as  a  defense,  and  not  immunity 
from  the  prosecution  itself,  is  w'hat  was  secured  by  the  xA.ct  of  February  25, 
1903,  as  amended  by  the  Act  of  June  30,  1906,  providing  that  no  person  shall 

rich  Transit  Co.,  224  U.  S.  194,  56  L.  E'l  their  port  to  port  business,  both  in- 
729,  32  S.  Ct.  4.S6.  trastate  and  interstate,  and  the  business 
The  interstate  coniinerce  corntnission  of  operating  amusement  parks.  Inter- 
did  not  exceed  its  authority  under  the  state  Commerce  Comm.  v.  Goodrich 
Act  of  February  4,  1887  (24  Stat,  at  L.  Transit  Co.,  224  U.  S.  194,  56  L.  Ed.  729, 
379,   chap.   104,  U.   S.   Comp.   Stat.   1901,   p.  32    S.    Ct.    436. 

3154),    §    20,    as    amended    by   the    Act    of  505-72f.    Not  a  regulation  of  business  of 

June   29,   1906    (34    Stat,    at    L.    584,    chap.  carriers. — Interstate    Commerce    Comm.':'. 

3591,    U.    S.    Comp.    Stat.    Supp.    1909,    p.  Goodrich  Transit  Co.,  224  U.  S.  194,  56  L. 

1150),    to   prescribe   a   uniform    system    of  Ed.   729,   32   S.    Ct.   436. 

bookkeeping  and   accounting   for,   and   to  505-72g.    As   tO'  corporations   organize-l 

call    for    annual    reports    from,    common  under    state    laws. — Interstate   Commerce 

carriers  by  water  upon  the   Great  Lakes,  Comm.  v.  Goodrich  Transit  Co.,  224  U.  S. 

which,   being   engaged   in   the   transporta-  194,   56  L.   Ed.  729.   32   S.   Ct.   436. 

tion    of   passengers    and    property,    partly  505-72h.     Presumption    and     burden     of 

by  railroad  and  partly  by  water,  under  a  proof — As   to   reasonableness    of    rates.— 

joint   arrangement    for   a   continuous    car-  Illinois    Cent.    R.    Co.   t'.    Interstate    Com- 

riage  or  shipment,  are,  by  §  1  of  that  act,  merce    Comm.,   206   U.    S.   441,   51    L.    Ed. 

brought    within    its    terms,    because    such  1128,  27  S.  Ct.  700. 

accounting    system    and    reports    are    not  505-72i.     Presumption    upon    change    of 

limited   to   the   joint   rail   and   water   busi-  rates. — Interstate     Commerce      Comm.     r. 

ness,  but  are  required  to  embrace  as  well  Chicago,  etc.,  R.  Co.,  209  U.  S.  108,  52  L. 

the  other  business  of  the  carriers,  such  as  Ed.   705,   28   S.   Ct.   493. 


Vol.  \'1I. 


INTBRSTATB,  ETC.,  COMMERCE. 


505-510 


be  prosecuted  or  subjected  to  any  penalty  or  forfeiture  for  or  on  account  of 
any  transaction,  matter,  or  thing  concerning  which  he  may  testify  or  produce 
evidence  in  any  proceeding,  suit,  or  prosecution  under  the  Sherman  antitrust 
and  interstate  commerce  actsJ-^ 

(5)  Notice  and  Enforcement  of  Findings. — See  post,  "Judicial  Review  of 
Findings  and  Orders  of  Commission,"  IV,  K,  2.  b,  (6),  et  seq. 

(6)  Judicial  Reviezc  of  Findings  and  Orders  of  Commission — (a)  Generally. 
— The  primary  jurisdiction  is  with  the  commission,  the  power  of  the  courts  be- 
ing that  of  review,  and  is  confined  in  that  review  to  questions  of  constitutional 
power  and  all  pertinent  questions  as  whether  the  action  of  the  commission  is  within 
the  scope  of  the  delegated  authority  under  which  it  purports  to  have  been 
made.^^^  To  quote  the  language  of  Air.  Justice  Lamar  in  a  late  case :  "There 
has  been  no  attempt  to  make  an  exhaustive  statement  of  the  principle  involved, 
but  in  cases  thus  far  decided,  it  has  been  settled  that  the  orders  of  the  commis- 
sion are  final  unless  (1)  beyond  the  power  which  it  could  constitutionally  ex- 
ercise; or  (2)  beyond  its  statutory  power;  or  (3)  based  upon  a  mistake  of 
law.  But  questions  of  fact  may  be  involved  in  the  determination  of  questions 
of  law,  so  that  an  order,  regular  on  its  face,  may  be  set  aside  if  it  appears  that 
(4)  the  rate  is  so  low  as  to  be  confiscatory  and  in  violation  of  the  constitutional 
prohibition  against  taking  property  without  due  process  of  law;  or  (5)  if  the 
commission  acted  so  arbitrarily  and.  unjustly  as  to  fix  rates  contrary  to  evidence, 
or  without  evidence  to  support  it;  or  (6)  if  the  authority  therein  involved  has 
been  exercised  in  such  an  unreasonable  manner  as  to  cause  it  to  be  within  the 
elementary  rule  that  the  substance,  and  not  the  shadow,  determines  the  validity 
of  the  exercise  of  the  power. "'^'^'' 

Findings  upon  Questions  of  Fact — Presumption  as  to  Correctness  of 
Finding's. — Originally  the  duty  of  the  courts  to  determine  whether  an  order  of 


505-72J.  Nature  and  extent  of  protec- 
tion afforded  by  statute. — Heike  v.  United 
States.  217  U.  S.  423.  432.  .54  L.  Ed.  821.  30  S. 
Ct.  539.  See.  also,  ante,  CONSTITU- 
TIONAL LAW.  p.  264;  post,  SEARCHES 
AND  SEIZURES. 

510-91a.  Judicial  review  of  findings  and 
orders  of  commission — Scope  of  review. 
— Interstate  Commerce  Comm.  v.  Clii- 
cago,  etc.,  R.  Co..  218  U.  S.  88,  54  L.  Ed. 
946,  30  S.  Ct.  651;  Interstate  Commerce 
Comm.  V.  Illinois,  etc..  R.  Co..  215  U.  S. 
452.   478.  54  L.   Ed.  280,  30  S.   Ct.   loo. 

510-91b.  Same — As  stated  by  Mr.  Jus- 
tice Lamar. — Interstate  Commerce  Comm. 
V.  Union  Pac.  R.  Co..  222  U.  S.  541,  56  L. 
Ed.  308,  32  S.  Ct.  108.  citing  Interstate 
Commerce  Comm.  i\  Illinois,  etc.,  R.  Co., 
215  U.  S.  452.  54  L.  Ed.  280,  30  S.  Ct.  155; 
Southern  Pac.  Co.  v.  Interstate  Commerce 
Comm..  219  U.  S.  433,  55  L.  Ed.  283.  31 
S.  Ct.  288;  Interstate  Commerce  Comm. 
V.  Northern  Pac.  R.  Co.,  216  U.  S.  538, 
544,  54  L.  Ed.  608.  30  S.  Ct.  417;  Inter- 
state Commerce  Comm.  v.  Alabama  Mid. 
R.  Co..  168  U.  S.  114.  174,  42  L.  Ed.  414, 
18    S.    Ct.   45. 

Same— Statement  by  Mr.  Justice  \yhite. 
— "Beyond  controversy,  in  determining 
whether  an  order  of  the  commission  shall 
be  suspended  or  set  aside,  we  must  con- 
sider (a)  all  relevant  questions  of  con- 
stitutional power  or  right;  (b)  all  perti- 
nent questions  as  to  whether  the  adminis- 


trative order  is  within  the  scope  of  the 
delegated  authority  under  which  it  pur- 
ports to  have  been  made;  and  (c)  a 
proposition  which  we  state  independently, 
although  in  its  essence  it  may  be  con- 
tained in  the  previous  one,  viz,  v/hether, 
even  though  the  order  be  in  form  within 
the  delegated  power,  nevertheless  it  must 
be  treated  as  not  embraced  therein,  be- 
cause the  exertion  of  authority  which  is 
questioned  has  been  manifested  in  such  an 
unreasonable  manner  as  to  cause  it.  in 
truth,  to  be  within  the  elementary  rule 
that  the  substances,  and  not  the  shadow, 
determines  the  validity  of  the  exercise  or 
the  power."  Justice  White,  delivering 
opinion  in  Interstate  Commerce  Comm. 
T.  Illinois,  etc.,  R.  Co.,  215  U.  S.  452.  54 
L.  Ed.  280.  30  S.  Ct.  155.  See,  also.  Pos- 
tal Tel.  Cable  Co.  v.  Adams.  155  U.  S. 
688.  698.  39  L.  Ed.  311.  15  S.  Ct.  268. 

Mistake  of  law — As  to  presum.ption 
from  long  maintenance  of  lower  rate. — 
The  iirterstate  commerce  commission  can 
not  be  said  to  have  based  its  order  reduc- 
ing rares  upon  a  mistake  of  law  in  re- 
garding the  long  nraintenance  by  the 
carriers  of  a  lower  rate  while  earning  divi- 
dends as  raisiu'j:-  a  presumption  of  rea- 
sonableness, where  the  reduced  rate  fixed 
by  the  commission  was  higher  than  such 
earlier  rate.  Interstate  Commerce  Comm. 
V.  Union  Pac.  R.  Co..  222  U.  S.  541,  50  L. 
Ed.   308,  32   S.  Ct.   108. 


"89 


510 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


the  commission  should  or  should  not  be  enforced  carried  with  it  the  obligation 
to  consider  both  the  facts  and  the  law;  but  prior  to  the  passage  of  the  act  cre- 
ating the  commerce  court  the  statute  had  made  the  findings  of  the  commission 
prima  facie  correct,  so  that  in  considering  the  subject  of  orders  of  the  commis- 
sion, for  the  purpose  of  enforcing  or  restraining  their  enforcement,  the  courts 
were  confined  by  statutory  operation  to  determining  whether  there  had  been  vio- 
lations of  the  constitution,  a  want  of  conformity  to  statutory  authority,  or  of 
ascertaining  whether  power  had  been  so  arbitrarily  exercised  as  virtually  to 
transcend  the  authority  conferred  although  it  may  be  not  technically  doing  so. 
In  reviewing  the  findings  of  the  commission,  therefore,  the  courts  will  not 
examine  the  facts  further  than  to  determine  whether  there  was  substantial  evi- 
dence to  sustain  the  order;  or  whether  the  commission  acted  arbitrarily  and 
Unjustly  and  contrary  to  the  evidence;  or  whether  its  authority  was  exercised 
in  such  an  unreasonable  and  arbitrary  manner  as  to  cause  it  to  be  within  the 
elementary  rule  that  the  substance,  and  not  the  shadow,  determines  the  validity 
of  the  exercise  of  power. ^^"^ 


510-91C.  Findings  upon  questions  of 
fact — Presumption    as    to     correctness. — 

Interstate  Commerce  Comm.  v.  Union 
Pac.  R.  Co.,  222  U.  S.  541,  56  L.  Ed.  308, 
32  S.  Ct.  108;  Cincinnati,  etc.,  R.  Co.  v. 
Interstate  Commerce  Comm.,  206  U.  S. 
142,  154,  51  L.  Ed.  995,  27  S.  Ct.  648; 
Suulhern  Pac.  Co.  v.  Interstate  Commerce 
Comm.,  219  U.  S.  433,  55  L.  Ed.  283,  31 
S.  Ct.  288;  Interstate  Commerce  Comm. 
V.  Illinois,  etc.,  R.  Co.,  215  U.  S.  452,  54 
L.  Ed.  280,  30  S.  Ct.  155;  Interstate  Com- 
merce Comm.  V.  Chicago,  etc.,  R.  Co.,  218 
U.  S.  88,  54  L.  Ed.  946,  30  S.  Ct.  651;  In- 
terstate Commerce  Comm.  v.  Chicago, 
etc.,  R.  Co.,  218  U.  S.  113,  54  L.  Ed.  959, 
30  S.  Ct.  660,  reversing  (C.  C),  171  Fed. 
680;  Interstate  Commerce  Comm.  v.  Dela- 
ware, etc.,  R.  Co.,  220  U.  S.  235,  55  L.  Ed. 
448,  31  S.  Ct.  392,  reversing  (C.  C.)  166 
Fed.  499;  Procter,  etc.,  Co.  v.  United 
States,  225  U.  S.  282,  297,  56  L.  Ed.  1091, 
32   S.   Ct.  761. 

With  regard  to  the  finding  of  the  com- 
mission upon  the  character  of  a  rate, 
whether  it  is  unreasonable  as  decided, 
such  decision,  the  court  has  said  with 
tiresome  repetition,  is  peculiarly  the 
province  of  the  commission  to  make,  and 
that  its  findings  are  fortified  by  presump- 
tions of  truth,  "due  to  the  judgments  of 
a  tribunal  appointed  by  law  and  informed 
by  experience."  Interstate  Commerce 
Comm.  V.  Chicago,  etc.,  R.  Co.,  218  U.  S. 
88,  54  L.  Ed.  946,  30  S.  Ct.  651;  Illinois 
Cent.  R.  Co.  v.  Interstate  Commerce 
Comm.,  206  U.  S.  441,  454,51  L.  Ed.  1128, 
27   S.   Ct.  700,  and  cases  cited. 

Findings  of  the  interstate  commerce 
commission  that  certain  through  rates  are 
unreasonable  in  themselves  carry  with 
them  a  presumption  of  correctness.  In- 
terstate Commerce  Comm.  v.  Chicago, 
etc.,  R.  Co.,  218  U.  S.  88,  54  L.  Ed.  946, 
30  S.  Ct.  651;  Interstate  Commerce  Comm. 
7'.  Chicago,  etc.,  R.  Co.,  218  U.  S.  113,  54 
L.  Ed.  959,  30  S.  Ct.  660,  reversing  decrees 
in    Chicago,    R.  I.  &   P.  Ry.    Co.  v.    Inter- 


state Commerce  Commission  (C.  C.  1909), 
171    F.   680. 

The  statute  makes  the  finding  of  the 
interstate  commerce  commission  prima 
facie  correct,  and  the  courts  will  not  ex- 
amine the  facts  on  which  the  interstate 
commerce  commission  based  its  order  re- 
ducing rates  further  than  to  determine 
wiiether  there  was  substantial  evidence  to 
sustain  the  order.  Interstate  Commerce 
Comm.  V.  Union  Pac.  R.  Co.,  222  U.  S. 
541,  56  L.  Ed.  308,  32  S.  Ct.  108.  See,  also, 
Cincinnati,  etc.,  R.  Co.  v.  Interstate  Com- 
merce Comm.,  206  U.  S.  142,  154,  51  L. 
Ed.  995,  27   S.   Ct.   648. 

Findings  of  fact  made  by  the  interstate 
com.merce  commission  in  a  proceeding  for 
redress  for  unlawful  discrimination  in 
railway  rates  are  not  open  to  review  in 
the  courts.  Interstate  Commerce  Comm. 
V.  Delaware,  etc.,  R.  Co.,  220  U.  S.  235,  55 
L.  Ed.  448,  31  S.  Ct.  392,  reversing  decree 
(C.  C.  1908),  Delaware,  L.  &  W.  R.  Co. 
V.  Interstate  Commerce  Commission,  166 
F.  499,  citing  Baltimore,  etc.,  R.  Co.  v. 
Pitcairn  Coal  Co.,  215  «U.  S.  481,  54  L. 
Ed.  292,  30  S.  Ct.  164;  Interstate  Com- 
merce Comm.  V.  Chicago,  etc.,  R.  Co.,  218 
U.  S.  88,  54  L.  Ed.  946,  30  S.  Ct.  651;  l\\- 
terstate  Commerce  Comm.  v.  Illinois, 
etc..  R.  Co.,  215  U.  S.  452,  54  L.  Ed.  280, 
30  S.  Ct.  155;  Interstate  Commerce  Comim. 
V.  United  Pac.  R.  Co.,  222  U.  S.  541,  56  L. 
Ed.   308,   32    S.    Ct.   108. 

Where  the  commission  exercises  its  au- 
thority to  find  existing  rates  unreason- 
able and  undertakes  to  correct  the  same 
by  prescribing  reasonable  rates,  its  find- 
ing is  not  subject  to  be  reviewed  by  the 
court.  In  other  words,  an  order  of  the 
commission  is  not  open  to  attack  in  the 
courts  so  long  as  that  body  has  kept 
within  the  powers  conferred  by  the  stat- 
ute. Southern  Pac.  Co.  v.  Interstate  Com- 
merce Comm.,  219  U.  S.  433,  55  L.  Ed. 
2S3,    31    S.    Ct.   288. 

But  although  the  order  made  by  _  the 
commission  may  have  been  couched  in  a 


790 


Vol.  VII. 


INTERSTATE,  ETC.,  COMMERCE. 


510 


Question  of  Power— Wisdom,  Expediency,  or  What  Court  Would  Have 
Done  on  Like  Testimony,  Not  Considered. — In  determining  these  mixed 
questions  of  law  and  fact,  the  court  confines  itself  to  the  ultimate  question  as 
to  whether  the  commission  acted  within  its  power.  It  will  not  consider  the  ex- 
pediency or  wisdom  of  the  order,  or  whether,  on  like  testimony,  it  would  have 
made  a  similar  ruling.  The  findings  of  the  commission  are  made  by  law  prima 
iacie  true,  and  the  federal  supreme  court  has  ascribed  to  them  the  strength  due 
to  the  judgments  of  a  tribunal  appointed  by  law  and  informed  by  experience. 
Its  conclusion,  of  course,  is  subject  to  review,  but,  when  supported  by  evidence, 
is  accepted  as  final,  not  that  its  decision,  involving,  as  it  does,  so  many  and  such 
vast  public  interest,  can  be  supported  by  a  mere  scintilla  of  proof,  but  the  courts 
will  not  examine  the  facts  further  than  to  determine  whether  there  was  sub- 
stantial evidence  to  sustain  the  order.^^''  The  courts  can  not,  under  the  guise 
of  exerting  judicial  power,  usurp  merely  administrative  functions  by  setting 
aside  an  order  of  the  interstate  commerce  commission  within  the  scope  of  the 
power  delegated  to  such  commission,  upon  the  ground  that  such  power  was  un- 
wisely or  inexpediently  exercised. ^^® 


form  which  would  cause  it,  superficially 
considered,  to  appear  to  be  but  the  exer- 
cise of  an  authority  to  correct  an  unrea- 
sonable rate,  yet  if  it  plainly  results  from 
the  record  that  the  order  of  the  coinmis- 
sion  was  not  the  exercise  of  such  an  au- 
thority, but  was  based  upon  the  assump- 
tion by  that  body  of  the  possession  of  a 
jK'wer  not  confeired  by  law,  th(;  mere 
form  given  by  the  commission  to  its  ac- 
tion does  not  relieve  the  courts  from  the 
duty  of  reviewing  and  correcting  an 
abuse  of  power.  Southern  Pac.  Co.  v. 
Interstate  Commerce  Comm.,  219  U.  S. 
4.3?..  55   L.   Ed.  283,  31   S.  Ct.  2S8. 

Where  the  order  entered  by  the  com- 
mission shows  on  its  face  that  that  body 
assumed  that  it  had  power  not  merely  to 
prevent  the  charging  of  imjust  and  un- 
reasonable rates,  but  also  to  regulate  and 
control  the  general  policy  of  the  owners 
of  railroads  as  to  fixing  rates,  and  con- 
sequently that  there  was  authority  to 
substitute  for  a  just  and  reasonable  rate 
one  which,  in  and  of  itself,  in  a  legal 
sense,  might  be  unjust  and  imreasonable, 
if  the  commission  was  satisfied  that  it 
was  a  wise  policy  to  do  so,  because  a 
railroad  had  so  conducted  itself  as  to  be 
estopped  in  the  future  from  being  en- 
titled to  receive  a  just  and  reasonable 
compensation  for  the  service  rendered,  it 
shows  that  the  commission  has  been 
guilty  of  an  abuse  of  power  which  the 
courts  have  jurisdiction  to  review  and 
correct.  Southern  Pac.  Co.  v.  Interstate 
Commerce  Comm.,  219  U.  S.  433,  55  L. 
Ed.   283,   31    S.    Ct.   288. 

Thus  where  a  railroad  compan}^  fixed 
a  rate  of  $3.10  per  ton  upon  lumber 
shipped  from  a  certain  locality  and  con- 
tinued it  in  force  for  several  years  and 
imtil  the  industrj^  had  grown  and  reached 
considerable  proportions  in  that  locality, 
the  commission  had  no  power  to  abolish 
a   new   rate   of  $5.00  per  ton  where   such 


rate  was  not  shown  to  be  unreasonable  of 
itself,  but  merely  upon  the  ground  that 
the  prosperit}^  of  the  lumber  business  in 
that  locality  would  be  seriously  impaired 
by  the  enforcement  of  the  new  rate,  and 
that  the  railroad  company,  having  estab- 
lished a  rate  imder  which  the  industry 
had  grown  up,  was  now  estopped  from 
fixing  a  rate  which,  while  not  unreason- 
able for  the  service  rendered,  would  im- 
pair the  prosperity  of  the  business  which 
had  grown  up  under  the  old  rate.  South- 
ern Pac.  Co.  V.  Interstate  Commerce 
Comm.,  219  U.  S.  433,  55  L.  Ed.  283,  31 
S.    Ct.   288. 

Evidence  from  which  experts  might 
have  named  rate. — An  order  of  the  inter- 
state commerce  commission  reducing 
rates  can  not  be  said  to  have  been  made 
v>'ichout  substantial  evidence  to  support 
it,  where,  although  there  is  no  direct  testi- 
mony that  the  old  rate  was  unreasonably 
high,  there  were  facts  in  evidence  from 
which  experts  could  have  named  a  rate. 
Interstate  Commerce  Comm.  v.  Union 
Pac.  R.  Co.,  222  U.  S.  541,  56  L.  Ed.  308, 
32   S.   Ct.   108. 

510-91d.  Question  of  power — Wisdom, 
expediency  or  what  court  would  have 
done  on  like  testimony  not  considered. — 
Interstate  Commerce  Comm.  v.  Union 
Pac.  R.  Co.,  222  U.  S.  541,  56  L.  Ed.  308, 
32  S.  Ct.  108,  citing  Illinois  Cent.  R.  Co. 
V.  Interstate  Commerce  Comm.,  206  U. 
S.  441,  51   L.   Ed.  1128,  27   S.  Ct.   700. 

510-91e.  Same. — Interstate  Commerce 
Comm.  V.  Illinois,  etc.,  R.  Co.,  215  U.  S. 
452,  54  L.  Ed.  280,  30  S.  Ct.  155;  decree, 
Chicago,  etc.,  R.  Co.  v.  Interstate  Com- 
merce Commission,  173  Fed.  930,  reversed; 
Interstate  Commerce  Comm.  v.  Chicago, 
etc.,  R.  Co.,  215  U.  S.  479,  54  L.  Ed.  291, 
30  S.  Ct.  163;  Baltimore,  etc.,  R.  Co.  v. 
Pitcairn  Coal  Co.,  215  U.  S.  481,  54  L. 
Ed.   292,  30   S.   Ct.   164. 

Arguments   which   point   out  and   assail 


r91 


510  INTERSTATE,  ETC.,  COMMERCE.  Vol.  VII. 

Review  of  Question  of  Jurisdiction — Mandamus  to  Compel  Commis- 
sion to  Take  Jurisdiction. — The  interstate  commerce  commission  is  purely  an 
administrative  body.  It  is  true  it  may  exercise  and  must  exercise  quasi  judicial 
duties,  but  its  functions  are  defined,  and,  in  the  main,  explicitly  directed,  by  the 
acts  creating  it  and  it  is  not  the  final  judge  of  its  own  jurisdiction.  On  the  othei 
hand,  if  it  refused  to  take  jurisdiction  under  a  mistaken  view  of  the  law  in  a 
proper  case,  a  mandamus  will  lie  to  compel  it  to  take  jurisdiction.^ ^^ 

Existence  of  Satisfactory  or  Reasonable  Through  Route. — The  courts 
may  review  the  determination  of  the  interstate  commerce  commission  upon  the 
question  whether  "no  reasonable  or  satisfactory  through  route  exists"  within 
the  meaning  of  the  Act  of  June  29,  1906,  c.  3591,  §  4,  34  Stat.  589  (U.  S.  Comp. 
St.  Supp.  1909,  p.  1158),  conditioning  the  authority  of  the  commission  to  estab- 
lish through  routes  and  joint  rates  upon  the  nonexistence  of  such  route. ^^^ 

(b)  Constitution  and  Poivers  of  the  Commerce  Court — aa.  General  Purpose 
and  Intent  of  Act  Creating  Court. — The  act  creating  the  commerce  court  was 
intended  to  be  but  a  part  of  the  existing  system  for  the  regulation  of  interstate 
commerce,  which  was  established  by  virtue  of  the  original  adoption  in  1887  of 
the  act  to  regulate  commerce,  and  which  was  expanded  by  the  repeated  amend- 
ments of  that  act  which  followed,  developed  in  practical  executions  by  the  rul- 
ings of  the  interstate  commerce  commission,  upon  whom  was  cast  the  adminis- 
trative enforcement  of  the  act.  the  whole  elucidated  and  sanctioned  by  a  long 
line  of  decisions  of  the  federal  supreme  court,  and  by  adopting  the  provisions 
concerning  the  commerce  court  and  making  it  part  of  the  system,  it  was  not  in- 
tended to  destroy  the  existing  machinery  or  method  of  regulation,  but  to  cause 
it  to  be  more  efficient  by  affording  a  more  harmonious  means  for  securing  the 
judicial  enforcement  of  the  act  to  regulate  commerce. ^^"^ 

bb.  Jurisdiction  of  Court  in  General. — The  first  section  of  the  act  creating  the 
commerce  court,  wherein  is  recited  the  jurisdiction  of  the  commerce  court,  makes 
clear  that  the  purpose  was  not  to  create  a  court  with  new  and  strange  powers 
destructive  of  the  previous  well-established  administrative  authority  of  the  in- 
terstate commerce  commission  and  in  conflict  with  the  general  jurisdiction  vested 
in  the  courts  of  the  United  States,  but  only  to  give  to  the  new  court  the  special 
jurisdiction  then  possessed  by  the  courts  of  the  United  States  for  the  enforce- 
ment of  orders  made  by  the  commission,  and  thus  to  unify  the  exertion  of  ju- 

the  imperfection  which  may  appear  in  tlio  Same;  jurisdiction  as  to  railway  corn- 
result,  assail,  it  is  said,  the  wisdom  of  pany  operating  in  Alaska. — Mandamus  lies 
congress  in  conferring  upon  the  commis-  to  compel  the  interstate  commerce  coni- 
sion  the  power  which  has  been  lodged  in  mission  to  take  jurisdiction  of  a  petition 
that  body  to  consider,  complaints  as  to  alleging  violations  of  the  Interstate  Com- 
violations  of  the  statute,  and  to  correct  merce  Act  by  a  railway  company  operat- 
them  if  found  to  exist,  or  attack  as  crude  ing  in  Alaska,  where  the  commission  re- 
or  inexpedient  the  action  of  the  commis-  fused  to  entertain  the  petition,  upon  the 
sion  in  the  performance  of  the  administra-  ground  that  Alaska  was  not  a  territory 
tive  functions  vested  in  it,  and  upon  such  of  the  United  States,  and  that  the  subject 
assumption  invoke  the  exercise  of  unwar-  matter  of  the  petition  was  therefore  not 
ranted  judicial  power  to  correct  the  as-  within  the  scope  of  the  commission's  pow- 
sumed  evils.  Interstate  Commerce  Comni.  ers.  Interstate  Commerce  Comm.  v. 
V.  Chicago;  etc.,  R.  Co.,  218  U.  S.  88,  54  Humboldt  Steamship  Co.,  224  U.  S.  474, 
L.  Ed.  946,  30  S.  Ct.  651;  Interstate  Com-  56  L.  Ed.  849,  32  S.  Ct.  556. 
merce  Comm.  v.  Illinois,  etc.,  R.  Co.,  215  510-91g.  Existence  of  satisfactory  or 
U.  S.  452,  478,  54  L.  Ed.  280,  30  S.  Ct.  155;  reasonable  through  route.— Interstate 
Baltimore,  etc.,  R.  Co.  v.  Pitcairn  Coal  Commerce  Comm.  v.  Xorthern  Pac.  R. 
Co.,  215  U.  S.  481,  54  L.  Ed.  292,  30  S.  Co.,  216  U.  S.  538.  54  L.  Ed.  608,  30  S.  Ct. 
Ct.  164.  417. 

510-91f.    Review  of  question  of  jurisdic-  510-91h.    The  commerce  court — General 

tion — Mandamus   to    compel    commission  purpose  and  intent  of  act  creating  court, 

to  take  jurisdiction. — Interstate  Commerce  — Procter,  etc.,  Co.  v.   United   States,   225- 

Comm.    V.    Humboldt    Steamship    Co.,   224  U.    S.   282,   294,   56   L.   Ed.   1091,   32   S.   Ct. 

U.    S.   474,   56  L.   Ed.   849,  32   S.   Ct.   556.  761. 

792 


Vol.  MI.  INTERSTATE,  ETC.,  COMMERCE.  510 

dicial  power  with  reference  to  the  enforcement  of  the  orders  of  the  commission. 
The  opening  words  of  the  section  which  make  this  resnlt  clear  are  as  follows: 
It  (the  commerce  conrt)  shall  "have  the  jurisdiction  now  possessed  by  the  cir- 
cuit courts  of  the  United  States  and  the  judges  thereof,  over  all  cases  of  the 
following  kinds,"  etc^^'  The  declaration  in  the  act  that  nothing  in  the  fact  that 
the  existing  power  of  the  circuit  courts  as  to  the  subjects  of  jurisdiction  trans- 
ferred to  the  new  court  should  be  deemed  as  an  enlarging  of  those  powers,  and 
that  nothing  in  the  transfer  of  the  enumerated  powers  to  the  commerce  court 
should  be  considered  as  limiting  or  abridging  the  existing  jurisdiction  possessed 
by  the  circuit  courts  as  to  things  and  subject  matters  not  embraced  in  the  powers 
transferred,  serve  to  make  clear  the  legislative  intent  that  the  creation  of  a  new 
body  to  exercise  a  portion  of  the  existing  judicial  power  should  not  in  any  way 
enlarge  the  power  as  existing  or  be  implied  as  destroying  or  minimizing  the  gen- 
eral scope  of  the  judicial  power  possessed  by  the  circuit  courts  where  such  power 
was  not  embraced  within  the  authority  transferred  to  the  new  body.'^^^ 

cc.  Poivers  Conferred  by  §  20/,  ,Subdk'ision  2. — The  words  in  this  second 
subdivision  are:  "Second.  Cases  brought  to  enjoin,  set  aside,  annul,  or  suspend 
in  whole  or  in  part  any  order  of  the  interstate  commerce  commission."  Giving 
to  these  words  their  natural  significance,  it  follows  that  they  confer  jurisdiction 
only  to  entertain  complaints  as  to  affirmative  orders  of  the  commission ;  that  is, 
they  give  the  court  the  right  to  take  cognizance  when  properly  made  of  com- 
plaints concerning  the  legality  of  orders,  rendered  by  the  commission  and  confer 
power  to  relieve  parties  in  whole  or  in  part  from  the  duty  of  obedience  to  orders 
which  are  found  to  be  illegal.  They  do  not  invest  that  court  with  jurisdiction  to 
redress  complaints  based  exclusively  upon  the  conception  that  the  interstate 
commerce  commission,  in  a  matter  submitted  to  its  judgment,  and  within  its  com- 
petency to  consider,  has  mistakenly  refused,  upon  the  ground  that  no  right  to 
the  relief  claimed  was  given  by  the  act  to  regulate  commerce,  to  award  the  relief 
which  was  claimed  at  its  hands.  In  other  words,  the  authority  of  the  commerce 
court  under  the  provision  of  the  statute  is  confined  to  enforcing  or  restraining, 
as  the  case  may  require,  affirmative  orders  of  the  commission,  and  it  has  no 
power  to  exert  its  own  judgment  by  originally  interpreting  the  administrative 
features  of  the  act  to  regulate  commerce  and  upon  that  assumption  treat  a  re- 
fusal of  the  commission  to  grant  relief  as  an  affirmative  order  and  accordingly 
pass  on  its  correctness. ''i*"  That  this  is  the  proper  construction  of  the  act  is 
further  made  to  appear  by  reading  this  second  subdivision  of  §  207  in  connection 
with  the  first.  The  first  subdivision  provides  for  the  enforcement  of  orders, 
that  is,  the  compelling  of  the  doing  or  abstaining  from  doing  of  acts  embraced 
by  a  previous  affirmative  command  of  the  commission,  and  the  second  dealing 
with  the  same  subject  from  a  reverse  point  of  view,  provides  for  the  contin- 
gency of  a  complaint  made  to  the  court  by  one  seeking  to  prevent  the  enforce- 
ment of  orders  of  the  commission  such  as  are  contemplated  by  the  first  paragraph. 
In  other  words,  by  the  co-operation  of  the  two  paragraphs,  authority  is  given 
on  the  one  hand  to  enforce  compliance  with  the  orders  of  the  commission  if 
lawful,  and.  on  the  other  hand,  power  is  conferred  to  stay  the  enforcement  of 
an  illegal  order,  which  must,  in  the  nature  of  things,  mean  an  affirmative  order 
as  in  the  other  case.'^^' 

510-91i.   Jurisdiction  of  court,  in  general.  subdivision  2. — Procter,  etc.,  Co.  v.  United 

— Procter,   etc.,   Co.   v.   United   States,   225  States,  225  U.   S.  282,  292,  56  L.  Ed.  1091, 

U.    S.   282,   299,   56    L.    Ed.    1091,    32    S.    Ct.  32    S.    Ct.   761. 

761.  510-911.    Same — Construing  subdivisions 

510-91J.  Same — Powers  transferred  from  1  and  2  together. — Procter,    etc.,     Co.     v. 

circuit  courts. — Procter,  etc.,  Co.  :'.  United  United    States,    225    U.    S.    282,   293,   56    L. 

States,  225  U.   S.  282,  300,  56  L.   Ed.   1091,  Ed.   1091,   32,  S.    Ct.   701. 

32   S.  Ct.  761.  To   give   to  this   section    of   the   statute 

510-91k.    Powers   conferred   by    §     207,  a  meaning   contrary  to  that  above   stated 

793 


510 


INTERSTATE,  ETC.,  COMMERCE. 


Vol.  VII. 


Review  of  Denial  of  Constitutional  Right  Asserted  in  Petition. — If  the 

claim  of  constitutional  right  concerned  a  subject  which,  from  its  very  nature 
and  effect,  dominated  the  act  to  regulate  commerce  and  therefore  was  wholly 
independent  of  all  questions  of  right  or  remedy  created  by  or  depending  upon 
that  statute,  then  the  issue  presented  a  controversy  not  cognizable  in  the  com- 
merce court,  as  it  could  not  so  be  without  violating  the  express  reservation  and 
restriction  as  to  the  general  power  of  the  circuit  courts  contained  in  the  act. 
If,  on  the  other  hand,  the  constitutional  question  was  involved  in  or  depended 
upon  the  provisions  of  the  act  to  regulate  commerce,  that  question  in  the  nature 
of  things  was  subject  to  the  precedent  action  of  the  commission  on  the  subjects 
committed  to  it  by  the  act  to  regulate  commerce  and  as  to  which  the  court  had 
jurisdiction  alone  to  act  in  virtue  of  a  prior  affirmative  order  of  the  commis- 
sion.9i°^ 

dd.  Reviezv  of  Question  of  Jurisdiction. — An  appeal  will  not  lie  to  the  com- 
merce court  to  review  the  action  of  the  interstate  commerce  commission  in  re- 
fusing to  entertain  a  petition,  on  the  ground  that  the  subject  matter  was  not 
within  the  scope  of  the  commission's  powers.  The  proper  procedure  is  by 
mandamus  to  compel  the  commission  to  take  jurisdiction  and  proceed  according 
to  law.9i° 


and  to  recognize  in  the  commerce  court 
the  existence  of  the  power  to  interpret 
originally  the  administrative  features  of 
the  act  to  regulate  commerce,  and  to 
treat  the  refusal  of  the  commission  to 
grant  relief  prayed  for  as  an  affirmative 
order  and  renew  it  accordingly  would  re- 
sult in  frustrating  the  legislative  public 
policy  which  led  to  the  adoption  of  the 
act  to  regulate  commerce,  would  render 
impossible  a  resort  to  the  remedies  which 
the  statute  was  enacted  to  afford,  would 
multiply  the  evils  which  the  act  to  regu- 
late commerce  was  adopted  to  prevent, 
and  thus  bring  about  disaster  by  creating 
confusion  and  conflict  where  clearness 
and  unity  of  action  was  contemplated. 
Procter,  etc.,  Co.  v.  United  States,  225  U. 
S.  2S2.  294.  56  L.  Ed.  1091.  32  S.  Ct.  761. 

Order  denying  relief  against  demurrage 
charges. — The  jurisdiction  of  the  com- 
merce court  under  the  Judicial  Code  of 
March  3,  1911  (36  Stat,  at  L.  114S,  chap. 
231,  U.  S.  Comp.  Stat.  Supp.  1911,  p.  216), 
§  207,  of  "cases  brought  to  enjoin,  set 
aside,  annul,  or  suspend,  in  whole  or  in 
part,  any  order  of  the  interstate  com- 
inerce  commission,"  embraces  only  com- 
plaints of  affirmative  action  by  the  com- 
mission, and  does  not  confer  the  power 
to  redress  a  complaint  based  solely  upon 
the  refusal  of  the  commission  to  award 
the  relief  asked  by  a  shipper  against  de- 
murrage regulations,  upon  the  ground  that 
the  federal  statutes  gave  no  right  to  the 
relief  claiined.  The  commerce  court  has 
no  right  in  such  case  to  treat  the  order 
denying  relief  as  an  affirmative  order  and 
take  jurisdiction  of  a  petition  filed  in  that 
court,  making  the  United  States,  the  in- 
terstate commerce  commission,  and  the 
railroads  parties  defendant  and  praying 
the  same  relief  which  had  been  denied 
by  the  commission.     Procter,  etc.,  Co.  v. 


United  States,  225  U.  S.  282,  56  L.  Ed. 
1091,  32   S.  Ct.  761. 

Refusal  to  reduce  rates. — The  com- 
merce court  has  no  jurisdiction  of  a  com- 
plaint by  shippers  of  the  refusal  of  the 
interstate  commerce  commission  to  reduce 
maximum  rates  to  the  full  extent  asked. 
Hooker  v.  Knapp,  225  U.  S.  302,  56  L.  Ed. 
1099,  32  S.  Ct.  769. 

Orders  commanding  carriers  to  desist 
from  unlawful  discrimination  held  to  be 
affirmative. — The  commerce  court  has  the 
right  to  entertain  jurisdiction  of  a  peti- 
tion filed  by  an  interstate  carrier  seeking 
to  enjoin  the  enforcement  of  an  affirma- 
tive order  of  the  interstate  commerce 
commission  ordering  said  carrier  to  de- 
sist from  making  certain  allowances  to 
one  shipper  without  making  the  same  al- 
lowances to  others  for  floatage,  lighter- 
age and  terminal  services  rendered  by 
such  shippers  to  the  carrier.  United 
States  V.  Baltimore,  etc.,  R.  Co.,  225  U.  S. 
306,    56    L.    Ed.    1100.    32    S.    Ct.   817. 

The  commerce  court,  in  the  exercise  of 
its  power  under  the  Act  of  June  18,  1910 
(36  Stat,  at  L.  542,  ch.  309),  §  3,  to  enjoin, 
set  aside,  annul  or  suspend  any  order  of 
the  interstate  commerce  commission,  has 
jurisdiction  to  entertain  a  petition  to  en- 
join an  order  of  the  commission  requiring 
railway  companies  to  cease  charging 
lower  rates  for  coal  intended  for  railway 
consumption  than  is  accorded  to  other 
shippers.  Interstate  Commerce  Comm.  r. 
Baltimore,  etc.,  R.  Co.,  225  U.  S.  326,  56 
L.  Ed.  110,  32  S.  Ct.  742. 

510-91m.  Review  of  denial  of  constitu- 
tional right  asserted  in  petition. — Procter, 
etc.,  Co.  V.  United  States,  225  U.  S.  283, 
301,  56  L.   Ed.  1091,  32  S.  Ct.  761. 

510-91n.  Review  of  question  of  jurisdic- 
tion.— Interstate     Commerce      Comm.     v. 


r94 


Vol.  ATI. 


IXTERSTATE.  ETC.,  COMMERCE. 


510 


ee.  Temporary  Restraining  Orders,  Preliminary  and  Perpetual  Injunctions. — 
Section  3  (208),  provides  that  the  mere  pendency  of  a  suit  to  enjoin,  set  aside, 
annul  or  suspend  an  order  of  the  commission  "shall  not  stay  or  suspend  the 
operation  of  such  order"  but  confers  upon  the  court  the  power,  under  circum- 
stances stated,  to  restrain  or  suspend  in  whole  or  in  part  the  operation  of  an 
order;  that  is,  of  course,  an  affirmative  order,  of  the  commission.  The  same 
section  makes  a  finding  that  irreparable  injury  will  result  from  the  operation 
of  an  order  sought  to  be  enforced,  essential  to  the  granting  of  an  order  restrain- 
ing or  suspending  its  enforcement.^^" 

Applicability  of  Requirement  as  to  Statement  or  Irreparable  Damage. 
— Only  temporary  restraining  orders  of  the  commerce  court,  issued  conformablv 
to  the  Act  of  June  18.  1910  ( 36  Stat,  at  L.  542.  chap.  309),  §  3,  staying  in  whole 
or  in  part  the  operation  of  an  order  of  the  interstate  commerce  commission  for 
not  more  than  sixty  days,  are  aft'ected  by  the  requirements  of  that  section  re- 
specting a  statement  of  fact  as  to  irreparable  damage;  they  have  no  application 
to  a  preliminary  injunction  or  injunction  pendente  lite.^^P 


Humboldt  Steamship  Co.,  224  U.  S.  474, 
56    L.    Ed,    849,    32    S.    Ct.    .556. 

510-91O.  Temporary  restraining  orders, 
injunctions,  etc. — In  general. — Procter, 
etc.,  Co.  z\  United  States,  225  U.  S.  2S2.  294, 
56  L.  Ed.  1091.  32  S.  Ct.  761;  United  States 
t.  Baltimore,  etc.,  R.  Co.,  225  U.  S.  306. 
56  L.  Ed.  1100,  32  S.  Ct.  817;  Interstate 
Commerce  Comm.  v.  Baltimore,  etc..  R. 
Co.,  225  U.  S.  326.  56  L.  Ed.  1107,  32  S. 
Ct.  742. 

The  cominerce  court  also  has  power  to 
allow  a  preliminary  injunction  against  an 
affirmative  order  of  the  interstate  com- 
merce commission  ordering  a  carrier  to 
desist  from  discriminating  in  the  matter 
of  allowances  for  floatage,  lighterage, 
and  terminal  services,  since  that  authority 
is  conferred  in  express  terms  by  §  3 
(§  208).  36  Stat,  at  L.  1149.  chap.  231.  U. 
S.  Comp.  Stat.  Supp.  1911,  p.  217,  36  Stat, 
at  L.  542,  chap.  209),  of  the  act.  United 
States  V.  Baltimore,  etc.,  R.  Co.,  225  U. 
S.  306,  56  L.   Ed.  1100,  32  S.   Ct.  817. 

The  commerce  court,  in  the  exercise  of 
its  power,  under  the  Act  of  June  18,  1910 
(36  Stat,  at  L.  542,  chap.  309).  §  3,  to  en- 
join, set  aside,  annul,  or  suspend  any  or- 
der of  the  interstate  commerce  commis- 
sion, has  jurisdiction  to  entertain  a  peti- 
tion to  enjoin  an  order  of  the  commission 
requiring  railway  companies  to  cease 
charging  lower  rates  for  coal  intended 
for  railway  consumption  than  is  accorded 
to  other  shippers,  and  may  enjoin  such 
order  if  it  considers  that  it  will  work 
irreparable  injury,  where  the  question 
presented  by  the  petition  is  that  the  or- 
der of  the  commission  was  not  merely  ad- 
ministrative, but  proceeded  from  a  con- 
struction of  certain  sections  of  the  act  to 
regulate  commerce  as  applicable  to  the 
conditions  which  affected  the  traffic  in  the 
different  kinds  of  coal,  and  that  the  dif- 
ferent charges  for  transportation  con- 
stituted violations  of  those  sections.  In- 
terstate   Commerce    Comm.   z\    Baltimore, 


etc..  R.  Co..  225  U.  S.  326,  56  L.  Ed.  1107, 
32   S.   Ct.  742. 

510-91p.  Applicability  of  requirement  as 
to  statement  of  irreparable  damage. — 
United  States  v.  Baltimore,  etc..  R.  Co., 
225  U.  S.  306,  56  L.  Ed.  1100,  32  S.  Ct. 
817. 

In  this  case  it  was  urged  on  behalf  of 
the  United  States  and  the  interstate  com- 
merce commission  that,  wholly  irrespec- 
tive of  the  merits  of  the  petition,  the  or- 
der granting  the  interlocutory  injunction 
should  be  reversed  because  of  what  was 
insisted  to  be  the  express  requirements  of 
the  act  imposing  the  duty  on  the  com- 
merce court  or  a  judge  of  that  court,  if 
a  restraining  order  was  granted  under  the 
conditions  in  the  statute,  to  state  the 
facts  from  which  it  was  found  that  irrep- 
arable injury  would  arise  if  a  restraining 
order  were  not  allowed.  Answering  this 
contention,  the  court  said:  "Without 
ambiguity  we  think  the  statute  contem- 
plates three  classes  of  orders:  First,  a 
temporary  restraining  order  staying  in 
whole  or  in  part  the  operation  of  the  or- 
der of  the  interstate  cominerce  commis- 
sion for  not  more  than  sixty  days  from 
the  date  of  the  suspensive  order,  to  be  al- 
lowed b}'  the  court  or  a  judge  thereof; 
second,  a  preliininary  injunction,  that  is, 
an  injunction  pendente  lite,  which,  to 
quote  the  words  of  the  statute,  may  be 
granted  by  the  court  to  'restrain  or  sus- 
pend, in  whole  or  in  part,  the  operation 
of  the  commission's  order  pending  the 
final  hearing  and  determination  of  the 
suit;'  third,  in  the  nature  of  things  a  per- 
petual injunction  upon  the  entry  of  the 
final  decree.  The  order  in  this  case,  made 
after  notice  and  hearing,  suspending  the 
force  and  effect  of  the  order  of  the  com- 
mission until  further  order  of  the  court, 
was  obviousl}'  an  exercise  of  the  power 
conferred  to  grant  a  preliminary  injunc- 
tion or  injunction  pendente  lite,  and  not 
of   the    power    to   allow    a   temporary    re- 


795 


510 


INTERSTATE,  ETC,  COMMERCE. 


Vol.  VII. 


Applicability  of  General  Equity  Principles  with  Respect  to  Allowance 
of  Pendente  Lite  Injunctions. — Inasmuch  as  it  appears  from  the  act  creating 
the  commerce  court  and  defining  its  powers  and  jurisdiction. that  the  power  of 
said  court  to  issue  a  prehminary  injunction  was  recognized  and  preserved  so  as 
to  afiford  the  court  proper  time  for  deliberation  and  consideration  of  the  questions 
to  be  decided  by  the  commission,  instead  of  compelling  said  court,  upon  presenta- 
tion of  a  petition,  to  reach  a  final  conclusion  eo  instante,  the  general  ecjuity 
principle  requiring  courts  of  equity  called  upon  to  allow  preliminary  pendente 
lite  injunctions,  to  determine  whether  on  the  face  of  the  papers  presented  there 
is  such  an  equitable  cause  of  action  presented  as  justifies  the  issue  of  the  pre- 
liminary injunction  prayed   for,  will  not  be  applied.-'^'' 

Necessity  for  Injunction  or  Order — Discretion  of  Court. — The  granting 
by  the  commerce  court  of  an  injunction  pendente  lite  suspending,  until  final 
determination  of  the  suit,  an  order  of  the  interstate  commerce  commission,  re- 
quiring certain  carriers  to  desist  from  making  further  alleged  discriminatory 
allowances,  is  not  in  excess  of  its  power,  under  the  Act  of  June  18,  1910,  §  3, 


straining  order  embraced  in  the  first  of 
the  classes  stated.  As  we  think  it  clear 
that  the  requirements  of  the  statute 
relied  upon  respecting  the  statement  of 
facts  as  to  irreparable  damages  relate 
only  to  the  first  class  of  cases,  that  is,  the 
power  to  issue  a  temporary  restraining 
order,  we  hold  the  objection  to  be  with- 
out merit."  United  States  v.  Baltimore, 
etc.,  R.  Co.,  225  U.  S.  306,  56  L.  Ed.  1100, 
32  S.   Ct.  817. 

510-91q.  Applicability  of  general  equity 
principles  with  respect  to  allowance  of 
pendente  lite  injunctions. — United  States 
V.  Baltimore,  etc..  R.  Co.,  225  U.  S.  306,  56 
L.    Ed.    1100,   32   S.    Ct.   817. 

"Under  the  general  principles  of  equity, 
where  a  court  is  called  upon  to  decide 
whether  it  will  allow  a  preliminary  or 
pendente  lite  injunction,  the  duty  arising 
requires  it  to  be  determined  whether,  on 
the  face  of  the  papers  presented,  there  is 
such  an  equitable  cause  of  action  pre- 
sented as  justifies  the  issue  of  a  pre- 
liminary injunction  to  preserve  the  status 
pending  the  suit;  that  is,  to  afford  an  op- 
portunity for  a  trial  of  the  issues  pre- 
sented. Necessarily  it  is  true  that  where 
an  appeal  is  allowed  from  an  order  grant- 
ing a  preliminary  injunction-  the  review- 
ing court  is  put  to  the  duty  of  determin- 
ing whether,  on  the  face  of  the  papers,  the 
court  below  erred  as  a  matter  of  law  in 
granting  the  preliminary  injunctions.  Do 
these  principles  apply  to  the  case  before 
us  is  then  the  first  consideration.  The 
result  of  holding  that  they  do,  will  in- 
evitably cause  the  expunging  from  the  act 
of  the  express  authority  conferred  to  is- 
sue a  preliminary  injunction,  since,  viewed 
under  the  general  principles  of  equity,  the 
criteria  by  which  to  determine  the  right- 
fulness of  such  an  order  in  view  of  the 
nature  and  character  of  the  jurisdiction 
of  the  commerce  court  is  exactly  and  ex- 
clusively the  same  criteria  by  which  the 
rightfulness  of  a  final  degree  of  that 
court,    issuing    a    perpetual    injunction    in 


conformity  to  such  decree,  would  require 
to  be  tested.  Our  duty,  however,  is  not 
to  destroy  the  law,  but  to  enforce  it;  and 
in  doing  so  to  seek  to  discover  the  inten- 
tion of  the  lawmaker,  the  wrong  intended 
to  be  prevented,  and  the  remedy  designed 
to  be  afforded  by  the  enactment  of  the 
statnte.  Coming  to  consider  the  statute 
for  this  purpose,  we  have  pointed  out  in 
the  Procter  &  Gamble  Case  that  the 
great  remedy  intended  to  be  accom- 
plished was  the  concentration  in  a  single 
court  of  the  power  to  consider  the  right- 
fulness of  enforcing  or  setting  aside  or- 
ders of  the  commission;  that,  to  prevent 
unnecessary  delays,  the  limitations  as  to 
restraining  orders  and  their  duration,  and 
the  hearing  which  is  cominanded  as  to 
irreparable  injury,  were  enacted.  It  must 
tlieretore  in  reason  be  that  the  power  to 
issue  a  preliminary  injunction  was  recog- 
nized and  preserved  so  as  to  afiford  the 
court  the  proper  time  for  deliberation  and 
consideration  of  the  questions  to  be  de- 
cided by  the  cominission,  instead  of  com- 
pelling that  body  virtually  eo  instante 
upon  the  presentation  of  a  petition  to 
reach  a  final  conclusion.  And  it  would 
seem  also  to  be  the  case  that  the  right 
to  appeal  from  such  an  order  was  given 
as  a  safeguard  against  a  possible  abuse 
of  discretion  by  an  unwarranted,  arbi- 
trary, and  unreasonable  exercise  of  the 
power  conferred.  In  other  words,  we 
think  that  the  enlightened  purpose  of 
congress  was  that  the  court  which  it 
created,  in  the  exercise  of  the  important 
trusts  confined  to  its  authority,  and  where 
occasion  required  it  as  a  consequence  of 
the  gravity  and  complexity  of  the  legal 
questions  which  might  arise,  should  be 
afiforded  ample  opportunity  for  due  con- 
sideration and  ripe  judgment,  and  that  it 
was  not  intended  to  compel  precipitate, 
and  perhaps  ill-considered,  action."  United 
States  V.  Baltimore,  etc.,  R.  Co.,  225  U. 
S.  306,  56  L.  Ed.  1110,  32  S.  Ct.  817. 


r96 


\'ol.  yil.  IXTERSTATE,  ETC.,  COMMERCE.  510 

unless  it  was  plainly  unnecessary  because  of  the  obvious  nature  and  character 
of  the  legal  questions  as  to  which  the  judgment  of  the  court  was  invoked.^^^ 

ff.  Scope  of  Rcz'iczc. — Originally  the  duty  of  the  courts  to  determine  whether 
an  order  of  the  commission  should  or  should  not  be  enforced  carried  with  it 
the  obligation  to  consider  both  the  facts  and  the  law.  But  it  had  come  to  pass 
prior  to  the  passage  of  the  act  creating  the  commerce  court  that  in  considering 
the  subject  of  orders  of  the  commission,  for  the  purpose  of  enforcing  or  restrain- 
ing their  enforcement,  the  courts  were  confined  by  statutory  operation  to  de- 
termining whether  there  had  been  violations  of  the  constitution,  a  want  of 
conformity  to  statutory  authority,  or  of  ascertaining  whether  power  had  been 
so  arbitrarily  exercised  as  virtually  to  transcend  the  authority  conferred  although 
it  may  be  not  technically  so.'^i*'  It  was  also  determined  in  the  Procter  and 
Gamble  Case,^^'  in  considering  whether  an  affirmative  order  of  the  commerce 
court,  that  the  commission  should  be  enforced,  on  the  one  hand,  or  set  aside  and 
declared  nonenforceable  on  the  other,  was  endowed  only  with  the  jurisdiction 
and  power  existing,  at  the  time  that  act  was  passed  in  the  circuit  courts  of  the 
United  States ;  and  as,  at  that  time,  it  was  conclusively  settled  that  the  courts 
had  authority  to  re-examine  the  findings  of  the  commission  in  such  cases  only 
for  the  purpose  of  ascertaining  whether  the  action  of  the  commission  was  re- 
pugnant to  the  constitution,  in  excess  of  the  statutory  powers  conferred  upon 
it,  or  manifested  such  an  abuse  as  to  be  equivalent  to  an  excess  of  authority, 
it  clearly  results  that  the  commerce  court  was  likewise  limited  in  passing  upon 
the  petition  brought  before  it.^^" 

gg.  Appeal  to  Supreme  Court  of  the  United  States. — By  §  2  (§  210)  of  the 
act,  the  right  to  appeal  to  the  United  States  supreme  court  from  an  order  of 
the  commerce  court  issuing  a  preliminary  injunction  against  the  enforcement  of 
the  affirmative  order  of  the  interstate  commerce  commission,  is  given  in  express 
terms.oi^ 

Suspension  of  Orders  Pending  Appeal. — The  enforcement  of  an  order  of 
the  interstate  commerce  commission  will  be  suspended  pending  an  appeal  from 
the  commerce  court  sustaining  the  order  when  it  is  proper  from  the  facts  of 
the 'Case  to  maintain  the  status  quo.^^^ 

Rule  of  Decision  on  Appeal. — The  commerce  court  was  created  for  the 
purpose,  among  other  things,  of  interposing  between  the  interstate  commerce 
commission  and  the  federal  supreme  court  an  intermediate  tribunal  having  powers 
which  the  statute  delegates  to  it,  and  it  is  the  duty  of  the  federal  supreme  court 

510-91r.    Necessity  for  injunction  or  or-  commerce    court,    therefore,   bad   jurisdic- 

der — Discretion    of    court. — United    States  tion  of  the  petition  and  jurisdiction  to  en- 

z\    Bahimore,   etc.,    R.   Co.,   225   U.   S.   306,  join   the    order   of   the   commission   if   the 

56  L.   Ed.   1100,  32   S.   Ct.   817.  court   considered   that    the     order     would 

510-91S.    Scope  of  review. — Procter,  etc.,  cause    irreparable    injury.      Section    3    of 

Co.  V.  United  States,  225  U.  S.  282,  297,  56  the  act  creating  the  commerce  court  gives 

L.  Ed.  1091,  32  S.  Ct.  761.  that  court  the  power  to  'enjoin,  set  aside, 

510-91t.    Same — Procter  and  Gamble  de-  annul,  or  suspend  any  order  of  the  inter- 

cision. — Procter,  etc.,  Co.  r.  United  States.  state    commerce    commission,     in    a     suit 

225  U.  S.  282,  56  L.  Ed.  1091,  32  S.  Ct.  761.  Ijrought   in    the   court   against   the   United 

510-91U.    Same. — United  States  z\  Balti-  States.'"     Interstate   Commerce  Comm.  i'. 

more,  etc.,  R.  Co.,  225  U.  S.  306,  56  L.  Ed.  Baltimore,   etc.,    R.   Co.,   225   U.   S.  326,   56 

1100,  32  S.  Ct.  817.  L.   Ed.   1107,  32   S.  Ct.  742. 

In  another  case,  the  court  says:     ''The  510-91v.     Appeal    to    supreme    court    of 

question  presented  by  the  petition  is  that  the  United  States — The  right  of  appeal. — 

the   order   of   the    commission     was      not  United    States   7:    Baltimore,    etc..    R.    Co., 

merely  administrative,  but  proceeded  from  225   U.    S.   306,   56   U    Ed.    1100,   32    S.   Ct. 

a  construction  of  §§  2  and  3  as  applicable  817. 

to  the  conditions  which  affected  the  traffic  510-91w.  Suspension  of  orders  pending 
in  the  different  kinds  of  coal,  and  that  the  appeal. — Omalia,  etc.,  St.  R.  Co.  r. ^Inter- 
different  charges  for  transportation  con-  state  Commerce  Comm.,  222  U.  S.  582, 
stituted  violations  of  those  sections.    The  56  U  Ed.  324,  32  S.  Ct.  833. 


510  INTERSTATE,  ETC.,  COMMERCE.  Vol.  VII. 

to  uphold  the  lawful  authority  of  the  commerce  court.  Therefore,  the  federal 
supreme  court  will  not  reverse  an  order  of  the  commerce  court  granting  a  pre- 
liminary injunction  against  an  affirmative  order  of  the  interstate  commerce  com- 
mission, except  in  the  case  of  a  clear  abuse  of  power,  but  will  remand  the  case 
so  that  there  may  be  an  opportunity  to  dispose  of  it  on  the  merits  in  the  form 
selected  by  congress   for  that  purpose.^^'' 

(7)  Criminal  Prosecutions. — As  to  the  nature  and  elements  of  the  offenses 
of  giving  rebates,  illegal  reductions,  undue  preferences  and  unequal  facilities, 
when  offense  complete,  separate  and  continuing  oft'enses,  applicability  and  con- 
stitutionality of  the  statute  as  respects  existing  agreements  for  rebates,  etc., 
see  ante,  "Special  Rates,  Rebates,  etc..  Prohibited,"  IV,  D,  et  seq. ;  "Undue 
Preference  and  Equal  Facilities,"  IV,  E,  et  seq. 

Jurisdiction  and  Venue. — The  offense  of  obtaining  transportation  of  prop- 
erty in  interstate  or  foreign  commerce  at  less  than  the  carrier's  published  rates, 
created  by  the  Elkins  Act  of  February  19,  1903,  is  made  triable  in  any  federal 
district  through  which  such  transportation  is  had,  by  the  provision  of  that  act 
that  violations  shall  be  prosecuted  in  any  court  of  the  United  States  having 
jurisdiction  of  crimes  within  the  district  in  which  such  violation  was  committed, 
or  through  which  the  transportation  may  have  been  conducted. ^^^' 

Same — Constitutionality  of  Statute. — The  requirement  that  the  prosecu- 
tion of  crimes  against  the  United  States  be  had  in  the  state  or  district  where 
the  offense  was  committed,  which  is  made  by  U.  S.  Const.,  Sixth  Amendment, 
is  not  violated  by  the  provision  of  the  Elkins  Act  of  February  19,  1903,  under 
which  the  oft'ense  of  obtaining  transportation  of  goods  at  less  than  the  carrier's 
published  rates  may  be  tried  in  any  federal  district  through  which  such  trans- 
portation was  conducted.^i^ 

The  Indictment — Joinder  of  Defendants. — P>oth  the  corporation  and  its 
agents  may  be  joined  in  an  indictment  for  violating  the  provisions  of  Elkins 
Act  Feb.  19,  1903,  c.  708,  32  Stat.  847  (U.  S.  Comp.  St.  Supp.  1907,  p.  880), 

510-91X.    Rule  of  decision  on   appeal. —  But  as  this  case  manifests  no  such  abuse, 

United    States   f.    Baltimore,   etc.,    R.    Co.,  our   duty   is   not   to   reverse   the   action   of 

225  U.  S.  306,  56  L.  Ed.  1100,  32  S.  Ct.  817.  the  court,  but  to  remand  the  case,  so  that 

The  federal  supreme  court  will  not  dis-  there  may  be  an  opportunity  to  dispose    of 

turb  on  appeal  the  granting  by  the  com-  it  on  the  merits  in  the  forum  selected  by 

merce    court    of    an    injunction    pendente  congress  for  that  purpose.     Of  course,  in 

lite    suspending,    until    final   determination  saying   this,    we    must   not   be   understood 

of  the  suit,  an  order  of  the  interstate  com-  as  deciding  or  in  any  way  implying  that 

merce  commission,  requiring  certain  car-  the  duty  would  not  exist  to  examine  the 

riers    to    desist    from    making    further    al-  merits  of  a  preliminary  order  of  the  gen- 

leged    discriminatory    allowances,    unless  eral   character   of  the   one   before   us   in   a 

it  was  so  unwarranted,  arbitrary,  and  un-  case    where    it    plainly,    in    our    judgment, 

reasonable  as   to  amount  to  an  abuse   of  appeared    that    the    granting    of    the    pre- 

discretion.      United    States    v.    Baltimore,  liminary  order  was  in  effect  a  decision  by 

etc.,  R.  Co.,  225  U.  S.  306,  56  L.  Ed.  1100,  the  court  of  the  whole  controversy  on  the 

32  S.   Ct.  817.  merits,    or    where     it     was      demonstrable 

"It  is   not   disputable   that  although   the  that  grave  detriment  to  the  public  interest 

right  to  appeal  to  this  court  from  an  or-  would    result    from    not    considering    and 

der  like   the   one  here  in   question  is  con-  finally  disposing  of  the  controversy  with- 

ferred,   yet   obviously   the   purpose   which  out  remanding  to  enable  the  court  below 

must  have  caused  the  creation  of  the  com-  to    do    so."      United    States    v.    Baltimore, 

merce  court  must  have  been  the  desire  to  etc.,  R.  Co..  225  U.  S.  306,  56  L.  Ed.  1100, 

interpose  between  the  action  of  the  com-  32  S.  Ct.  817. 

mission    and    this    court    an    intermediate  510-91y.     Jurisdiction     and     venue. — Ar- 

tribunal,    having    the    powers    which    the  mour    Packing    Co.   v.    United    States,    209 

statute    delegates    to    it.      Our    duty    is    to  U.   S.   56,  52   L.   Ed.   681,  28  S.   Ct.  428. 
give  that  purpose  effect  and  to  uphold  the  510-91z.        Same — Constitutionality       of 

lawful    authority    of    the    court    without  statute. — Armour    Packing    Co.    v.    United 

deviation,     and     yet     without     hesitancy,  States.   209  U.   S.  56,   52   L.   Ed.  681,  28   S. 

where  there  has  been  an  abuse  of  discre-  Ct.  428. 
tion,  to  correct  it  in  the  completest  way. 

798 


Vol.  MI. 


IXTERSTATE,  ETC.,  COMMERCE. 


510 


against  rebates,  under  which  the  commission  by  corporate  officers  or  agents,  act- 
ing within  the  scope  of  their  employment,  of  criminal  violations  of  the  provisions 
of  that  act,  is  imputed  to  the  corporation,  and  the  corporation  subjected  to 
criminal  prosecution  therefor. ^^^^^ 

Indictment — Charging  the  Offense. — In  view  of  the  provisions  §  1025  of 
the  Revised  Statutes  of  the  United  States,  which  provides  that  no  judgment 
upon  an  indictment  shall  be  affected  by  reason  of  any  defect  or  imperfection  in 
matter  of  form  which  shall  not  tend  to  the  prejudice  of  the  defendant,  and, 
unless  the  substantial  rights  of  the  accused  were  prejudiced  by  the  refusal  to 
require  a  more  specific  statement  of  the  manner  in  which  the  offense  was  com- 
mitted, there  can  be  no  reversal.  An  indictment  under  the  Elkins  Act  (32  Stat. 
847),  which  specifically  states  the  elements  of  the  oft'ense  charged  with  sufficient 
particularity  to  fully  advise  the  defendant  of  the  crime  charged  to  enable  a 
conviction,  if  had.  to  be  pleaded  in  bar  of  any  subsequent  prosecution  of  the 
same  offense  is  sufficient.  It  is  only  substantial  defects  that  are  available  to 
reverse  a  judgment  of  conviction. ^^'^'^ 

Instructions — Submitting  Issues,  Stating  Elements  of  Offense,  etc. — 
Submitting  to  the  jury  on  a  prosecution  against  a  shipper  for  accepting  rebates 
in  violation  of  the  Elkins  Act  of  February  19,  1903,  the  question  whether  or 
not  there  was  a  device  to  avoid  the  operation  of  the  act  and  to  obtain  the  trans- 
portation at  less  than  the  carrier's  published  rates,  did  not  prejudice  the  accused, 
where,  vmder  that  act,  no  device  or  contrivance,  secret  or  fraudulent  in  its 
nature,  is  requisite  to  the  commission  of  the  offense,  any  means  by  which  trans- 
portation by  a  concession  from  the  established  rate  was  had  being  sufficient  to 
work  a  conviction. ^^^^^ 


510-91aa.  The  indictment — Joinder  of 
defendants. — Xew  York,  etc.,  R.  Co.  i'. 
United  States,  212  U.  S.  481,  53  U  Ed. 
613.  29  S.  Ct.  304.  affirming  (C.  C.)  146 
Fed.  298. 

510-91bb.  Indictment — Charging  the  of- 
fense.— Xew  York,  etc.,  R.  Co.  v.  United 
States.  212  U.  S.  481,  53  U  Ed.  613.  29  S. 
Ct.  304;  Xew  York,  etc.,  R.  Co.  v.  United 
States.  Xo.  2.  212  U.  S.  500,  505,  53  U  Ed. 
624.  29  S.  Ct.  309;  Connors  v.  United 
States.   158  U.    S.   408.  39   L.   Ed.   1033. 

An  indictment  charging  a  shipper  with 
securing  transportation  of  goods  in  inter- 
state or  foreign  commerce  at  less  than 
the  carrier's  published  rates,  in  violation 
of  Elkins  Act  February  19.  1903,  c.  708, 
32  Stat.  847  (U.  S.  Comp.  St.  Supp.  1907, 
p.  880),  is  sufficient  where  it  charges  each 
and  all  of  the  elements  of  the  offense, 
with  allegations  of  time,  place,  kind  of 
goods,  and  name  of  carrier,  averring  the 
fixing  of  the  published  rate,  the  changing 
of  the  rate,  and  the  new  publication,  the 
shipper's  knowledge  of  this  change,  and 
the  carriage  of  the  goods  over  a  described 
route  at  a  concession  of  the  difference  be- 
tween the  two  rates.  Armour  Packing 
Co.  V.  United  States.  209  U.  S.  56.  52  L. 
Ed.  681,  28  S.  Ct.  428,  affirming  judgment 
(1907).  153  F.  1,  82  C.  C.  A.  135;  Chicago, 
etc.,  R.  Co.  V.  United  States,  209  U.  S. 
90,  52  L.  Ed.  698,  28  S.  Ct.  439,  affirming 
judgment    (C.   C.   A.   1907),  157   F.   830. 

An  indictment  charging  an  interstate 
carrier  with  giving  a  concession  whereby 
a  shipper  secured  through  transportation 


of  property  between  two  points  at  less 
than  the  lawful  rate  is  not  insufficient  be- 
cause it  does  not  aver  the  through  rate, 
where  it  states  the  amount  of  the  conces- 
sion and  that  it  was  given  from  the  law- 
ful rate  over  a  certain  part  of  the  route, 
which  rate  is  also  given.  (C.  C.  A.  1907), 
Chicago.  B.  &  Q.  Ry.  Co.  '•.  United  States, 
157  F.  830,  judgment  affirmed  in  Chicago, 
etc.,  R.  Co.  V.  United  States,  209  U.  S. 
90,  52  L.  Ed.  698.  28  S.  Ct.  439. 

510-91CC.  Instructions — Submitting  is- 
sues, stating  elements  of  offense,  etc. — • 
Armour  Packing  Co.  v.  United  States.  209 
U.  S.  56,  52  L.  Ed.  681.  28  S.  Ct.  428,  af- 
firming judgment  (1907),  153  F.  1,  82  C. 
C.  A.  135;  Chicago,  etc.,  R.  Co.  v.  United 
States.  209  U.  S.  90,  52  U  Ed.  698,  28  S. 
Ct.  439,  affirming  judgment  (C.  C.  A. 
1907).  157  F.  830. 

Instructions  given  in  a  prosecution 
for  rebating  under  the  Elkins  law  con- 
sidered, and  held  that,  taken  together, 
they  fairly  submitted  the  question  of  the 
intent  of  the  defendant  to  do.  through 
the  acts  of  its  agents  authorized  by  it, 
the  things  denounced  in  the  statute,  and 
not  to  be  open  to  the  objection  that 
they  permitted  the  defendant  to  be  con- 
victed for  violating  the  Act  of  1887  as 
amended  in  1889.  24  Stat.  855.  while  the 
charge  in  the  indictment  was  framed  un- 
der the  Elkins  Act.  and  was  intended 
to  reach  an  offense  committed  after  it 
had  gone  into  effect.  Xew  York,  etc.,  R. 
Co.  V.  United  States,  Xo.  2,  212  U.  S.  500, 
505,  53  U  Ed.  624,  29  S.  Ct.  309. 


799 


510-516  INTERSTATE,  ETC.,  COMMERCE.  Vol.  \ll. 

Same — Weight  of  Evidence,  Failure  to  Testify,  to  Produce  Witness  or 
Documents,  etc. — Instructing  on  trial  of  a  carrier  for  giving  rebates  to  take 
into  consideration  the  absence  of  a  certain  witness  and' the  nonproduction  of 
books  in  which  entries  were  made  concerning  the  transactions  in  question  is  not 
prejudicial  error,  where  the  jurors  are  left  to  attach  such  weight  to  these  cir- 
cumstances as  they  see  fit,  and  are  further  instructed  that  there  is  no  evidence 
that  the  defendant  or  those  who  controlled  its  corporate  action  destroyed  or 
failed  to  produce  any  paper  for  which  the  government  asked.'^^'''^ 

c.  Attendance  of  Witnesses  and  Production  of  Evidence. — See  ante,  "Power 
to  Investigate  and  Require  Information,"  R^  K,  2,  b,  (4),  a>^.  et  seq. 

d.  Xatiire  of  Inquiry  and  Considerations  Involved. — See  ante,  "Interests  to 
Be  Considered,"  IV,  C,  4,  c. 

e.  Parties  to  Proceedings. — See  ante,  "Parties,"  I\',  K,  2,  b,   (3),  (c),   y^-2i2i. 

f.  Weight  and  Conclusiveness  of  Findings  of  Commission. — See  ante,  "Judi- 
cial Review  of  Findings  and  Orders  of  Commission,"  IV,  K,  2,  b,   (6),  et  seq. 

V.   Pure  Food  and  Drugs  Act. 

See,  also,  ante,  "State  Pure  Food  Laws,"  II,  A,  2,  d,   (29). 

A.  General  Purpose  and  Intent  of  Act. — The  object  of  the  Food  and  Drugs 
Act  is  to  prevent  adulteration  and  misbranding,  as  therein  defined.  It  prohibits 
the  introduction  into  any  state  from  any  other  state  "of  any  article  of  food  or 
drugs  which  is  adulterated  or  misbranded,  within  the  meaning  of  this  act."  The 
purpose  is  to  keep  such  articles  "out  of  the  channels  of  interstate  commerce,  or, 
if  they  enter  such  commerce,  to  condemn  them  while  being  transported  or  when 
they  have  reached  their  destinations,  provided  they  remain  unloaded,  unsold,  or 
in   original  unbroken  packages. "^*^^ 

B.  Definitions  and  Scope  of  Act. — "To  determine  the  scope  of  the  act 
with  respect  to  feeding  stuffs  we  must  examine  its  definitions  of  the  adulteration 
and  misbranding  of  food,  the  term  'food'  including  'all  articles  used  for  food, 
drink,  confectionery,  or  condiment  by  man  or  other  animals,  whether  simple, 
mixed  or  compound'  (§  6).    These  definitions  are  found  in  §§  7  and  8."^^'' 

"Misbranding" — "Misleading  Statements" — Applicability  to  Drugs. — 
There  is  no  foundation  for  the  contention  that  the  words  "statement  which  shall 
be  misleading  in  any  particular,"  as  used  in  §  8  of  the  statute,  do  not  apply  to 
drugs  at  all:  that  is  to  say,  that  the  statements  referred  to  are  those  "regarding 
such  article,"  and  that  "such  article"  means  article  of  food  mentioned  by  the 
side  of  drugs  at  the  beginning  of  the  section.  Aside  from  the  reason  of  the 
thing,  the  beginning  of  the  sentence  makes  such  a  reading  impossible ;  further- 
more a  few  lines  further  on  in  the  same  section  the  word  "article"  is  made  to 
expressly  include  "drugs. "i'"' 

Same — What  Constitutes  "Misbranding,"  etc. — False  and  misleading 
statements  in  the  labels  on  a  proprietar}-  medicine  as  to  its  curative  or  remedial 
effects,  but  which  do  not  import  any  statement  concerning  identity,  are  not 
"misbranding,"  within  the  meaning  of  the  food  and  drugs  act  of  June  30,  1906, 
c.  3915,  §  8.  34  Stat.  771  (U.  S.  Comp.  St.  Supp.  1909,  p.  1191),' which  defines 
that  term  as  applicable  to  all  drugs  or  articles  of  food,  the  lockage  or  label 

510-91dd.     Same— Weight    of    evidence,  364.  31   S.  Ct.  364. 
failure   to   testify,   to   produce  witness   or  516-16b.     Definitions    and    scope — Term 

documents,  etc. — New  York,  etc.,  R.  Co.  ■:•.  "food"   defined. — Savage   v.  Jones,   22.5   U. 

United    States.    212    U.    S.    481.    .53    L.    Ed.  S.   501.   529.   56   L.    Ed.   1182,   32    S.    Ct.   715. 
613,    59  S.    Ct.  304,    affirming    (C.  C),    146  516-16c.    "Misbranding"   —    "Misleading 

Fed.  298.  statement"  —  Applicability     to     drugs.— 

516-16a.    General  purpose  and  intent  of  United  States  v.  Johnson,  221   U.   S.   488, 

act.— Savage  i\  Jones,  225  U.  S.  501,  56  L.  55  L.  Ed.  823,  31  S.  Ct.  627,  affirming  177 

Ed.  1182,  32  S.  Ct.  715;  Hipolite  Egg  Co.  f.  Fed.  313. 
United    States,    220    U.    S.    45,     55    L.    Ed. 

800 


Vol.  VII.  INTERSTATE,  ETC.,  COMMERCE.  516 

of  which  shall  bear  any  statement,  design,  or  device  regarding  such  article  or 
the  ingredients  or  substances  contained  therein  which  shall  be  false  or  misleading 
in  any  particular.^*"^ 

C.  Enforcement  of  Act — 1.  Proceedings  in  Rem — a.  To  What  Shipments 
Applicable. — Property  Not  Intended  for  Sale. — Section  10  of  the  Food  and 
Drugs  Act  of  June  30,  VJOb  (34  Stat,  at  L.  768,  chap.  3915,  §  10,  U.  S.  Comp. 
Stat.  Supp.  1909,  p.  1193),  providing  a  remedy  in  rem  after  the  manner  of  pro- 
ceedings in  admiralty  for  the  seizure  and  confiscation  of  impure  and  adulterated 
articles  of  food  and  drugs  shipped  in  violation  of  the  act,  applies  to  an  article 
of  food  which  has  been  shipped,  not  for  sale,  but  solely  for  use  by  the  consignee 
as  raw  material  in  the  manufacture  of  some  other  product.  The  words  "for 
sale"  are  not  to  be  interpolated  into  §  10  immediately  after  the  word  "trans- 
ported" in  the  clause  "or  having  been  transported,  remains  unloaded,  unsold,  or 
in  original  unbroken  packages,"  etc. ;  or  if  the  statute  is  to  be  construed  as  if 
they  were  so  interpolated,  then  all  articles,  compound  or  single,  not  intended  for 
consumption  by  the  producer,  must  be  deemed  designed  for  sale.^*^*^ 

b.  When  Shipment  Becomes  Subject  to  Seizure;  When  A'O  Longer  Subject  to 
Seizure. — The  object  of  the  statute  is  to  make  the  transportation  of  the  pro- 
hibited articles  illicit,  to  make  the  articles  themselves  outlaws  and  contraband 
of  commerce,  and  in  eiTecting  this  purpose,  congress,  under  the  authority  of  the 
commerce  clause,  had  the  power  to  authorize,  as  it  has  done,  their  seizure  and 
confiscation  so  long  as  they  remain  in  the  original  unbroken  packages  even  after 
they  have  reached  their  final  resting  place  in  the  warehouse  of  the  consignee 
there  to  await  being  manufactured  into  some  other  product.  In  other  words, 
it  is  the  purpose  of  the  statute,  and  within  the  constitutional  power  of  congress, 
that  the  forbidden  articles  shall  not  be  stealthily  put  into  interstate  commerce 
and  be  stealthily  taken  out  again  upon  their  arrival  at  destination  and  be  given 
asylum  in  the  general  mass  of  property  of  the  state ;  and  the  rule  applicable  to 
legitimate  articles,  namely,  that  diey  are  out  of  the  field  of  interstate  commerce 
when  they  have  arrived  at  destination  and  become  commingled  with  the  general 
mass  of  property  in  the  state,  has  no  application.  The  remedy  so  provided  for 
reaching  and  condemning  such  articles  is  an  appropriate  means  to  the  end  sought 
to  be  accomplished  and  within  that  breadth  of  discretion  which  congress  possesses 
in  the  execution  of  the  powers  conferred  upon  it  by  the  constitution. ^^^^ 

c.  Costs. — Costs  in  personam  may  be  assessed  against  the  claimant  in  the 
proceedings  in  rem  under  the  Food  and  Drugs  Act  of  June  ZO,  1906,  §  10,  to 
confiscate  adulterated  articles  of  food,  the  subject  of  interstate  commerce,  even 
if  the  principles  of  the  admiralty  law  are  made  applicable  by  the  provision  of 

516-16d.    Same — What  constitutes  "mis-  tended  solely  for  use  by  the  consignee  in 

branding,"  etc. — United  States  c-.  Johnson,  the  bakery  business.     Hipolite  Egg  Co.  v. 

221  U.   S.  488,  55  L.  Ed.  823,  31  S.  Ct.  G27,  United  States,  220  U.  S.  45,  55  L.  Ed.  364, 

affirming    177     Fed.     313.  31  S.  Ct.  364. 

516-16e.  Proceedings  in  rem — To  what  516-16f.  When  shipment  becomes  sub- 
shipments  applicable — Property  not  in-  ject  to  seizure,  when  no  longer  subject  to 
tended  for  sale. — Hinolite  Egg  Co.  v.  seizure. — Hipolite  Egg  Co.  v.  United 
United  States,  220  U.  S.  45,  55  L.  Ed.  364,  States,  220  U.  S.  45,  55  L.  Ed.  364,  31  S. 
31   S.   Ct.  364.  Ct.  364. 

The  remedy  in  rem  in  the  federal  courts  Congress  could  lawfully  enact  the  pro- 
provided  by  the  Food  and  Drugs  Act  visions  of  the  Food  and  Drugs  Act  of 
(Act  June  30,  1906.  c.  3915,  §  10,  34  Stat.  June  30,  1906,  §  10,  under  which  adulter- 
771  [U.  S.  Comp.  St.  Supp.  1909,  p.  1193]),  ated  articles  of  food,  the  subjects  of  inter- 
where  any  article  of  food  that  is  adulter-  state  commerce,  may  be  confiscated  by  a 
ated  is  being  transported  from  one  state  proceeding  in  rem  in  the  federal  cotirts 
to  another  for  sale,  or,  having  been  trans-  after  they  have  reached  their  destination, 
ported,  remains  unloaded,  unsold,  or  in  and  there  remain  in  the  hands  of  the  con- 
original  unbroken  packages  may  be  in-  signee  in  the  original  unbroken  packages, 
voked  where  adulterated  eggs  have  been  Hipolite  Egg  Co.  v.  United  States,  220  U. 
shipped  into  the  state,  not  for  sale,  but  in-  S.  45,  55  L.  Ed.  364,  31  S.  Ct.  364. 

12   U    S    Enc— Jl  801 


516  INTERSTATE,  ETC.,  COMMERCE.  Vol.  VII. 

that  section  that  the  proceedings  shall  conform  as  near  as  may  be  to  the  pro- 
ceedings in  admiralty. ^^'^ 

2.  Criminal  Prosecutions — a.  Persons  Liable  to  Prosecution. — Under  the 
pure  food  law,  not  only  a  manufacturer,  but  any  dealer  shipping  adulterated  or 
misbranded  goods  in  interstate  commerce,  is  guilty  of  a  misdemeanor.  In  aid  of 
enforcement  of  the  statute,  it  is  made  the  duty  of  the  department  of  agriculture 
to  collect  specimens  of  such  articles  so  shipped,  and  the  bureau  of  chemistry  is 
'-equired  to  analyze  them.  But,  even  if  the  specimen,  on  analysis,  is  found  to  be 
adulterated,  there  is  no  requirement  that  the  case  should  be  turned  over  at  once 
to  the  district  attorney,  for  the  reason  that  the  "party  from  whom  the  sample 
was  obtained"  might  be  a  dealer  holding  a  guaranty  from  his  vendor  that  the- 
articles  were  not  adulterated.  In  such  case  the  dealer  is  not  liable  to  prosecution, 
but  the  guarantor  (§9)  is  made  "amenable  to  the  prosecutions,  fines,  and  pen- 
alties."i6h 

b.  Preliininarv  Analysis.  Notice  and  Heorinq:  Duty  to  Prosecute ;  Independent 
Prosecutions. — Character  of  Notice  and  Hearing. — In  aid  of  the  enforce- 
ment of  the  statute,  it  is  made  the  duty  of  the  department  of  agriculture  to  collect 
specimens  of  such  articles  so  shipped,  and  the  bureau  of  chemistry  is  required 
to  analyze  them,  and  the  act  declares  (§4)  that  when,  on  such  examination  by 
the  board  of  chemistry,  the  article  is  found  to  be  adulterated,  "notice  shall  be 
given  to  the  party  from  whom  the  sample  was  obtained.  Any  party  so  notified 
shall  be  given  an  opportunity  to  be  heard."  But  the  hearing  is  not  judicial. 
There  is  no  provision  for  compelling  the  presence  of  the  party  from  whom  the 
sample  was  received;  if  he  voluntarily  attends,  he  is  not  in  jeopardy;  and  ad- 
verse finding  is  not  binding  against  him ;  and  a  decision  in  his  favor  is  not  an 
acquittal  which  prevents  a  subsequent  hearing  before  the  department,  or  a  trial 
in  court. ^^' 

Duty  to  Call  upon  District  Attorney  to  Prosecute. — Even  if  the  specimen, 
upon  analysis,  is  found  to  be  adulterated,  there  is  no  requirement  that  the  case 
should  be  turned  over  at  once  to  the  district  attorney  for  prosecution,  since 
the  "party  from  whom  the  sample  was  obtained"  might  be  a  dealer  holding  a 
guaranty  from  his  vendor  that  the  articles  were  not  adulterated.  In  such  case, 
it  is  the  guarantor  and  not  the  dealer  who  is  amenable  to  the  "prosecutions, 
fines,  and  penalties"  prescribed  by  the  act.^*''^ 

Duty  of  District  Attorney  to  Prosecute  When  Called  upon. — The  provi- 
sion as  to  the  hearing  is  administrative,  creating  a  condition  where  the  district 
attorney  is  compelled  to  prosecute  without  delay  when  called  upon  to  do  so. 
AMien  he  receives  the  secretary's  report,  he  is  not  to  make  another  and  independ- 
ent examination,  but  is  bound  to  accept  the  finding  of  the  department  that  the 
goods  are  adulterated  or  misbranded,  and  that  the  party  from  whom  they  had 
been  obtained  held  no  guaranty.^"'^ 

Independent  Prosecution — Analysis,  Notice  and  Hearing  Not  a  Condi- 
tion Precedent. — But  the  fact  that  the  statute  compels  the  district  attorney  to 
act  in  one  case  does  not  deprive  him  of  the  power  voluntarily  to  proceed  in  that 
and  every  other  case  under  his  general  powers.  The  statute  clearly  shows  that 
there  was  no  intent  to  make  such  notice  and  hearing  jurisdictional,  and  recog- 

516-16g.      Costs.— Hipolite    Egg    Co.    v.  U.  S.  274,  56  L.  Ed.  198.  32  S.  Ct.  81. 

United  States.  220  U.  S.  45,  55  L.  Ed.  364,  516-16J.     Duty  to  call  upon  district  at- 

31  S.  Ct.  364.  torney     to    prosecute. — United     States    v. 

516-16h.     Persons  liable  to  prosecutions.  :\Iorgan,  222  TJ.  S.  274,  56  L.  Ed.  198,  32  S. 

— United  States  z:   Morgan.  222  U.  S.  274,  Ct.  sl. 

36  L.  Ed.  198.  32  S.  Ct.  81.  516-16k.     Duty    of    distfict   attorney    to 

516-l6i.       Preliminary     analysis,     notice  prosecute    when  called  upon. — United 

and    hearing — Character     of     notice    and  States  r.  Morgan,  222  U.  S.  274,  56  L.  Ed. 

hearing. — United    States    v.    Morgan,    222  198,  32  S.  Ct.  81. 

802 


\'ol.  \II.  IXTOXICATIXG  LIQUORS.  516-520 

nizes    that   the    district    attorney    may   begin    proceedings    against    a    defendant 
who  has  not  been  given  notice  and  an  opportunity  to  be  heard. ^"^^ 

INTERSTATE  EXTRADITION.— See  ante,  Extradition,  p.  571. 

INTERVENE.— See  note  a. 

INTERVENTION.— See  the  title  Parties,  vol.  9,  p.  34,  and  references  there 
given.  In  addition,  see  post,  Parties.  As  to  intervention  by  the  United  States 
to  prevent  further  bloodshed  and  loss  of  life  and  property  in  Cuba,  see  ante, 
Ixterxatioxal  Law,  p.  686. 

INTESTATE. — See  ante,  Descent  and  Distributiox,  p.  463;  Executors 
AXD  Admixistrators,  p.  564;   post.   Wills. 


INTOXICATING  LIQUORS. 

II.  Regulation  and  Control,  803. 

A.  By  States,  803. 

2.  Power  to   Restrain  and   Prohibit,  803. 

B.  United   States   Internal   Revenue  License,  803. 

C.  Sales  to  Indians  and  in  Indian  Territories,  804. 

IV.  License  and  Taxation,  804. 
A.  In  General,  804. 
VII.  Enforcement  of  Liquor  Laws,  804. 

CROSS  REFERENCES. 

See  the  title  Ixtoxicatixg  Liquors,  vol.  7,  p.  518,  and  references  there  given. 

II.     Regulation   and   Control. 

A.  By  States — 2.    Power  to  Restraix  axd  Prohibit. — See  note  10. 

B.  United  States  Internal  Revenue  License. — See  post,  Revexue  Laws. 

516-161.        Independent      prosecutions —  intestate    the    ris:lit    "to    intervene    in    the 

Analysis,  notice  and  hearing  not  jurisdic-  possession,    administration,     and     judicial 

tional. — United   States   f.    Alorgan,   222   U.  liquidation   of  the   estate   of  the   deceased, 

S.  274,  56  L.  Ed.  198,  32  S.  Ct.  81.  conformably   to  the   laws   of  the   country. 

The   notice   and  preliminary  hearing  by  for  the  benefit  of  the   creditors  and  legal 

the  department  of  agriculture  which  must  heirs,"  the  term  intervene  can  only  have 

be  given  under  the  Pure  Food  and  Drugs  reference    to    the    universally    recognized 

Act    of   June  30,    1906  (34  Stat,    at  L.    768,  right   of  a   consul  to   temporarily  possess 

chap.  3915,  U.   S.   Comp.   Stat.   Supp.  1909,  the  estate  of  citizens  of  his  nation  for  the 

p.    1187),  to    the    person  from    whom    the  purpose  of  protecting  and  conserving  the 

sample  was   obtained,  when,  upon  exami-  rights  of  those  interested  before  it  comes 

nation  by  the  board  of  chemistry,  an  arti-  under  the  jurisdiction   of  the   laws   of  the 

cle    is    found    to    be     adulterated    or    mis-  country  for  its  administration.     The  right 

branded,   is   not   a   condition   precedent   to  to  intervene  in  administration  and  judicial 

the   prosecution   of  a   manufacturer,   insti-  liquidation    is    for    the    same   general   pur- 

tuted  by  the  department  of  agriculture  or  pose,    and    presupposes    an   administration 

its  agent,   for  shipping  misbranded  goods  or  judicial  liquidation  instituted  otherwise 

in    interstate    commerce.    United  States  v.  than  by  the   consul,  who  is  authorized  to 

Morgan,  222  U.  S.  274,  56  L.  Ed.  198,  32  S.  intervene.     Rocca  v.  Thompson,  223  U.  S. 

Ct.   81,   reversing   judgment    (C.    C.   1910),  317,  56  L.  Ed.  453,  32  S.  Ct.  207.     See  ante, 

181  Fed.  587.  EXECUTORS      AND       ADMIXISTRA- 

516-a.    Intervention  by  consular  officers  TORS,  p.  564. 

in  matters  regarding  citizens  dying  intes-  520-10.     Power  to  prohibit. — Phillips  v. 

tate. — In  the  Argentine   treaty  of  July  27,  Mobile,  208  U.  S.  472,  52  L.  Ed.  578,  28  S. 

1853    (10   Stat,   at   L.    1009),   art.    9,     con-  Ct.    370.      See    post,    "License    and    Taxa- 

ferring  upon   the   consular   officers   of  the  tion,"  IV. 
respective    courts    as    to     citizens      dying 

803 


522-524 


INTOXICATING  LIQUORS. 


Vol.  VII. 


C.  Sales  to  Indians   and  in  Indian  Territories.— See   ante,   Interstate 
AND  Foreign  Commerce,  p.  689. 


A.    In  General. 


IV.    License  and  Taxation. 

-See  notes  26,  28. 


VII.    Enforcement  of  Liquor  Laws. 

Indictment  and  Information. — An  information  charging  defendant  with 
selHng  Hquor  without  a  permit  from  the  probate  judge  need  not  aUege  that  he 
was  not  a  registered  pharmacist  nor  assistant  pharmacist  in  the  employ  of  a 
druggist  having  a  permit. ^•^'^ 

Evidence. — Matters  which  are  immaterial  and  at  variance  with  the  allega- 
tions of  the  indictment  are  not  admissible  in  a  trial  for  the  violation  of  a  state 
liquor  lav/."'*''  Evidence,  which,  in  connection  with  other  facts  and  circumstances, 
tends  to  show  a  selling  of  liquor  in  violation  of  the  law,  is  competent,  and  jus- 
tifies a  charge  to  that  effect."'^'' 


522-26.     Imposition  of  license  tax. — The 

sale  of  liquors  may  be  controlled  and  reg- 
ulated by  the  imposition  of  license  taxes, 
by  which  those  only  who  obtain  licenses 
are  permitted  to  engage  in  it.  Phillips  v. 
Mobile,  208  U.  S.  472,  52  L.  Ed.  578,  28  S. 
Ct.  370. 

"Taxation  is  frequently  the  very  best 
and  most  practical  means  of  regulating 
this  kind  of  business.  The  higher  the  li- 
cense it  is  sometimes  said,  the  better  the 
regulation,  as  the  effect  of  a  high  license 
is  to  keep  out  from  the  business  those 
who  are  undesirable  and  to  keep  within 
reasonable  limits  the  number  of  those  who 
may  engage  in  it.  We  regard  the  ques- 
tion in  this  case  as  covered  in  substance 
by  prior  decisions  of  this  court."  Phillips 
7'.  Mobile,  208  U.  S.  472,  52  L.  Ed.  578,  28 
S.  Ct.  370.  See  Vance  v.  Vandercook  Co. 
No.  1,  170  U.  S.  438,  446,  42  L.  Ed.  1100,  18 
S.  Ct.  674;  Reymann  Brewing  Co.  v.  Bris- 
ter,  179  U.  S.  445,  45  L.  Ed.  269,  21  S.  Ct. 
201;  Pabst  Brewing  Co.  v.  Crenshaw,  198 
U.  S.  17,  25,  49  L.  Ed.  925,  25  S.  Ct.  552; 
Delamater  v.  South  Dakota,  205  U.  S.  93, 
51  L.  Ed.  724,  27  S.  Ct.  447. 

A  license  tax  imposed  under  municipal 
ordinance  upon  those  engaged  in  selling 
beer  in  the  city  by  the  Jaarrel,  half  barrel, 
or  quarter  barrel  must  be  regarded,  even 
when  applied  to  interstate  transactions  in 
the  original  packages,  as  an  exercise  of 
the  police  power  permitted  l>y  the  Wilson 
Act  of  August  8,  1890  (26  Stat,  at  L.  313. 
chap.  728,  U.  S.  Comp.  Stat.  1901,  p.  3177), 
subjecting  intoxicating  liquors  arriving  in 
a  state  to  the  laws  of  such  state  enacted 
in  the  exercise  of  its  police  powers,  al- 
though the  city  may  derive  more  or  less 
revenue  from  the  ordinance  in  question. 
Phillips  V.  Mobile,  208  U.  S.  472,  52  L.  Ed. 
578,  28  S.  Ct.  370.     See  post,  LICENSES. 

523-28.  Vesting  power  in  probate  judge 
to  grant  permits. — The  law  in  relation  to 
intoxicating  liquors,  vesting  in  probate 
judges  of  the  respective  counties  jurisdic- 


tion over  the  subject  of  granting  permits 
to  sell  such  liquors  for  medical,  mechan- 
ical, and  scientific  purposes,  is  not  a  vio- 
lation of  the  fourteeiith  amendment  to  the 
constitution  of  the  United  States.  Judg- 
ment, State  v.  Durein  (1905),  80  P.  987,  70 
Kan.  1,  affirmed.  Durein  v.  Kansas,  208 
U.   S.  613,  52  L.   Ed.  645,  28   S.   Ct.  567. 

524-36a.  Indictment  or  information. — 
Durein  v.-  Kansas,  208  U.  S.  613,  52  L.  Ed. 
045,  28  S.  Ct.  567,  affirming  40  Kan.  1,  80 
P.  98. 

524-36b.  Evidence. — Evidence  that  the 
express  company  knew  that  a  C.  O.  D.  in- 
terstate shipment  of  intoxicating  liquors 
was  not  ordered  by  the  consignee  is  iin- 
material  on  a  criminal  prosecution  of  the 
express  company  for  violating  a  state  lo- 
cal option  law,  where  the  indictment  avers 
that  the  express  company  was  engaged  in 
the  business  of  a  common  carrier  of  pack- 
ages, and  that  the  shipment  and  delivery 
were  made  and  done  in  the  usual  course 
of  its  business.  Adams  Exp.  Co.  v.  Ken- 
tucky, 206  U.  S.  129,  51  L.  Ed.  987,  27  S. 
Ct.  606;  Id.,  103  S.  W.  353,  31  Ky.  Law  Rep. 
811-813,  reversing  judgment  (1905),  87  S. 
W.  1111,  27  Ky.  Law  Rep.  1096;  Adams 
Exp.  Co.  %'.  Kentucky,  206  U.  S.  138,  51  L. 
Ed.  992,  27  S.  Ct.  608,  reversing  judgment 
(1906),  92  S.  W.  932,  29  Ky.  Law  Rep.  224, 
5  L.  R.  A.  (N.  S.)  630;  American  Exp.  Co. 
V.  Kentucky,  206  U.  S.  139,  51  L.  Ed.  993, 
27  S.  Ct.  609,  reversing  judgment  (1906), 
97  S.  W.  807,  30  Ky.  Law  Rep.  207. 

524-36C.  Evidence  competent. — Where 
there  was  evidence  that  in  June,  1902,  one 
accused  of  selling  liquor  illegall}'  told  v/it- 
nesses  that  he  was  proprietor  of  a  saloon 
then  running,  and  that  he  intended  to 
keep  right  on  running  the  saloon,  and  sell- 
ing beer,  and  that  January  10,  1903,  he  was 
still  a  keeper  of  the  saloon,  justifies  an 
instruction  that  the  testimony  was  compe- 
tent to  be  considered  with  other  facts  and 
circumstances  for  the  purpose  of  deter- 
mining  whether   the   place    described   was 


804 


A-ol.  \'II.  J  01  XT  STOCK  CO  MP  AX  IBS.  524 

Conduct  of  Trial  in  General. — In  a  prosecution  for  selling  liquor  contrary 
to  law,  an  election  to  rely  on  a  transaction  occurring  on  a  stated  day  is  not  de- 
fective because  the  witnesses  are  not  named,  when  there  is  no  evidence  of  any 
other  transaction  on  the  same  day,  nor  because  it  does  not  designate  a  sale  to  a 
particular  individual,  out  of  a  dozen  men  who  were  drinking,  the  witnesses 
being  unable  to  identify  the  precise  person  or  persons  who  furnished  the  money 
observed  to  pass.^'^'^ 

INVENTION.— See  post,  Patents. 

INVENTORY. — See  ante,  Assignments  for  the  Benefit  of  Creditors,  p. 
154;    Bankruptcy,  p.  168;    Executors  and  Administrators,  p.  564. 

INVOLVED.— See  note  3. 

IRREPARABLE  INJURY.— See  ante.  Injunctions,  p.  657. 

IRRIGATION. — See  ante,  Boundaries,  p.  206;  post.  Public  Lands;  Nav- 
igable Wathks;   Waters  and  ^^'ATERCouRSEs. 

IRRIGATION  CORPORATION.— See  post,  \\"aters  and  \\  atercourses. 

ISLANDS. — See  Islands,  vol.  7,  p.  525.  In  addition,  see  ante,  Boundaries, 
p.  206;  International  Law,  p.  686 r  post,  Public  Lands. 

ISSUE.— See  Issue,  vol.  7,  p.  525. 

ISSUES  TO  JURY.— See  the  title  Issues  to  Jury,  vol.  7,  p.  526,  and  refer- 
ences there  given. 

JEOPARDY. — See  ante.  Autrefois,  Acquit  and  Convict,  p.  161. 

JOINDER. — See  ante,  Actions,  p.  7;  Appeal  and  Error,  p.  34;  Demurrers, 
p.  461  :  Indictment?.  Informations,  Presentments  and  Complaints,  p.  652. 

JOINDER  OF  PARTIES.— See  ante.  Courts,  p.  398;  post,  Parties;  Re- 
AiovAL  OF  Causes. 

JOINT  STOCK  COMPANIES.— See  the  title  Joint  Stock  Companies,  vol. 
7,  p.  531.     In  addition,  see  post.  Perpetuities. 

a  common  nuisance  by  reason  of  beins?  a  ment  of  the  supreme  court  of  the  Philip- 
place  where  intoxicating  liquors  were  pine  Islands  where  any  treaty  of  the 
kept  for  sale  in  violation  of  law.  Jtidg-  United  States  "is  involved."  The  treaty 
ment,  State  r.  Durein  (1905),  80  P.  987,  70  of  Paris  Vv^as  necessarily  involved  in  a 
Kan.  1,  affirmed.  Durein  z\  Kansas,  208  case  where  neither  the  lower  court  nor 
U.  S.  613.  52  L.  Ed.  645,  28  S.  Ct.  567.  the    supreme    court    could    determine    the 

524-36d.     Conduct  of  trial  in  general. —  continuity   of   the    municipality   of   ^lanila 

(1904)    State  V.  Durein,  78  P.  152,  70  Kan.  nor  the  liability  of  the  city  as  it  now  ex- 

1,    15  L.    R.  A.  (X.    S.)    90S,  judgment    af-  ists   for   the    obligation    of   the     old    .city, 

firmed  on   rehearing   (1905),   80  P.   987.   70  without    considering    the     effect      of      the 

Kan.  13,  and  Durein  z'.  Kansas,  208  U.   S.  change  of  sovereignty'  resulting  from  that 

613,  52  L.  Ed.  645,  28  S.  Ct.  567.  treaty.      Vilas    v.    Manila.    220    U.    S.    345, 

524-3.     Involved.— Under    §     10     of      the  352,  55  L.  Ed.  491,  31  S.  Ct.  416.     See  ante, 

Philippine  Organic  Act  of  July  I,  1902,  the  APPEAL    AND    ERROR;    COURTS,    p. 

federal    supreme    court    is    given    jurisdic-  398. 
tion   to   review   any  final   decree    or   judg- 

805 


535-537  JUDGES.  Vol.  VII. 


JOINT  TENANTS  AND  TENANTS  !N  COMMON. 

in.  Rights,  Duties  and  Liabilities,  806. 

D.  Purchase  of  Outstanding  Claim  or  Title.  806. 

IV.  Pleading  and  Practice,  806. 

A.  Suits  and  Actions  between  Cotenants,  806. 
4.  Limitations,  806. 

CROSS  REFERENCES. 

See  the  title  Joint  Tenants  and  Tenants  in  Common,  vol.  7.  p.  SZ?),  and 
references  there  given. 

III.    Rights,  Duties  and  Liabilities. 

D.    Purchase  of  Outstanding  Claim  or  Title. — See  note  11. 

Limitation  of  Rule — Purchase  of  Common  Property  at  Public  Sale. — A 

tenant  in  common  may  purchase  the  common  property  at  public  sale  under  a 
powder  in  a  trust  deed,  if  he  takes  no  unfair  advantage  of  his  co-owners,^^^  and 
an  agreement  between  some  of  them  to  buy  in  jointly  the  common  property  at 
such  public  sale  is  not  a  fraud  upon  the  rights  of  the  remaining  cotenants,  if 
there  is  no  resort  to  any  artifice  to  deter  others  from  bidding. i^'' 

IV.    Pleading  and  Practice. 

A.  Suits  and  Actions  between  Cotenants — 1.  Limitations. — A  delay  of 
four  years,  during  which  there  has  been  a  large  appreciation  in  the  value  of  the 
property,  is  fatal  to  any  right  to  require  a  tenant  in  common  to  give  his  cotenants 
the  benefit  of  his  purchase  of  the  common  property  at  a  public  sale  under  a  power 
in  a  trust  deed.^-^ 

JOURNAL  ENTRIES.— See  post.  Statutes. 

JUDGES. — See  the  title  Judges,  vol.  7,  p.  538,  and  references  there  given. 
In  addition,  see  post,  Mandamus. 

535-11.     Purchase  of  outstanding  claim  535-llb.      Agreement    to    buy    jointly. — 

or  title. — Starkweather   v.   Jenner,   216   U.  Starkweather  v.  Jenner,  216  U.  S.  524,  54 

S.  524,  528,  54  L.   Ed.  602,  30  S.   Ct.  382.  L.   Hd.  602,  30  S.  Ct.  382. 

535-lla.     Purchase  of  common  property  537-22a.      Limitations. — Decree      (1906), 

at  public  sale.— Decree   (1906),  27  App.  D.  27  App.  D.  C.  348,  affirmed.     Starkweather 

C.   348,    affirmed.    Starkweather   r.   Jenner,  t'.  Jenner,  216  U.  S.  524,  54  L.  Ed.  602,  30 

216  U.   S.   524,  54  L.   Ed.  602,  30  S.   Ct.  382.  S.   Ct.  382. 

806 


Vol.  MI.  JUDGMEXTS  AXD  DECREES. 


JUDGMENTS  AND  DECREES. 

VI.  Amending-,    Correcting,    Modifying,    Opening    or    Vacating    Judg- 
ments and  Decrees,  808. 

A.  General  Rules  as  to  Control  of  Courts  over  Judgments  and  Decrees, 

808. 
2.  After  Term.  808. 

a.  General  Rule.  808. 

XII.  Collateral  Attack  on  Judgments  or  Decrees,  808. 

B.  Rule  Construed  and  Applied,  808. 

4.    Consideration  of  Particular  Matters  as  Grounds  for  Collateral  At- 
tack,  808. 

b.  Errors  and   Irregularities,  808. 

(1)   General  Rule.  808. 

XIII.  Equitable  Relief  against  Judgments,  808. 

B.  When  Proper,  808. 

1.  General   Principles   Determining  Right  to  Relief,   808. 

2.  Application  of   Principles  to  Particular  Facts  and  Circumstances, 


a.  Defense  Xot  Available  at  Law,  808. 
(2)   Newly-Discovered  Evidence,  808. 

XIV.  Judgment  Liens,  808. 

D.  To  What  Property  Lien  Attaches.  808. 

1.  Nature  of  Property  Subject  to  Lien,  808. 
a.  Realty  and  Interests  Therein,  808. 
CD   In  General,  808. 

F.  Inception,  Duration  and  Termination  of  Lien.  808. 

3.  Termination  of  Lien,  808. 

a.    Expiration  of  Statutory  Period  or  Failure  to  Issue  Execution 
within  Proper  Time,  808. 
rn   In  General.  808. 

G.  Priorities,  809. 

3.  Between  Judgment  Liens  and  Other  Liens,  etc.,  809. 

a.  Subsequent  Adverse  Interests  and  Encumbrances,  809. 

XVI.  Judgments  by  Default,  and  Decrees  Pro  Confess©,  809. 

B.  Decrees  Pro  Confesso,  809. 
3.  Grounds,  809. 

b.  Failure  to  Plead.  Demur  or  Answer  within  Prescribed  Time, 

809. 
6.  Hearing  and  Determination,  809. 
b.  Procedure  on  Hearing.  809. 

(T)     General    Principles    Controlling   Rendition   of   Decrees 
Pro  Confesso.  809. 
8.  Opening  and   Setting  Aside  Decree,  809. 
b.  Grounds,  809. 

CROSS   REFERENCES. 

See  the  title    Judgments    and    Decrees,  vol.  7,  p.  544,  and  references  there 
given. 

807 


581-649 


JUDGMENTS  AXD  DECREES. 


Vol.  VII. 


VI.    Amending,  Correcting,  Modifying,  Opening  or  Vacating  Judgments 

and  Decrees. 

A.  General  Rules  as  to  Control  of  Courts  over  Judgments  and  Decrees 

— 2.  After  Term — a.  General  Rule. — See  note  44. 

XII.    Collateral  Attack  on  Judgments  or  Decrees. 

B.  Rule  Construed  and  Applied — 4.  Consideration  of  Particular  Mat- 
ters AS  Grounds  for  Collaterae  Attack — b.  Errors  and  Irregularities — (1) 
General  Rule. — See  note  80. 

XIII.  Equitable  Relief  against  Judgments. 

B.  When  Proper— 1.  General  Principles  Determining  Right  to  Relief. 
— See  note  95. 

2.  Application  of  Principles  to  Particular  Facts  and  Circumstances — ■ 
a.  Defenses  Not  Available  at  Law — (2)  Neivly-Discovcred  Evidence. — See 
note  4. 

XIV.  Judgment  Liens. 

D.    To  What  Property  Lien  Attaches — 1.    Nature  of  Property  Subject 
to  Lien — a.    Realty  and  Interests  Therein — (  1  )    In  General. — See  note  50. 
F.    Inception,  Duration  and  Termination  of  Lien — 3.    Termination  of 

Li£N — a    Expiration  of  Statutory  Period  or  Failure  to  Issue  E.vecution  withvii 
Proper  Time — (T)    hi  General. — See  note  95. 


581-44.  General  rule  as  to  loss  of  con- 
trol over  judgments,  decrees,  etc.,  after 
end  of  term. — In  re  Metropolitan  Trust 
Co.,  318  U.  S.  312.  54  L.  Ed.  1051,  31  S. 
Ct.  18. 

A  federal  circuit  court  which,  after  de- 
nying a  motion  to  remand  the  cause  to  the 
state  court,  whence  it  had  been  removed 
as  presenting  a  separable  controversy, 
sustains  the  demurrer  of  one  of  the  de- 
fendants, and  decrees  the  dismissal  of  the 
bill  as  to  it,  can  not  vacate  such  decree 
after  the  term,  on  the  theory  that  its  final 
decree  dismissing  the  bill  as  to  the  other 
defendants  having  been  reversed  on  an 
appeal  to  which  such  defendant  was  not 
a  part5%  with  directions  to  remand  the 
cause  to  the  state  court,  the  decision 
sought  to  be  vacated  was  a  nullity,  as 
rendered  without  jurisdiction.  In  re  Met- 
ropolitan Trust  Co.,  218  U.  S.  312,  54  L. 
Ed.  1051,  31  S.  Ct.  18. 

625-80.  Whether  or  not  the  United 
States  provisional  court  for  Porto  Rico 
lost  jurisdiction  of  a  cause  and  of  the  par- 
ties because,  in  the  course  of  its  proceed- 
ings, it  disregarded  certain  provisions  of 
the  Code  of  Civil  Procedure  which  were 
binding  upon  it,  is  a  question  which  can 
not  be  raised  by  collateral  attack  on  its 
iudgment.  Santiago  z\  Xogueras,  214  U. 
S.  2ViO,  53  L.   Ed.  989,  29  S.  Ct.  608. 

A  decree  of  the  supreme  court  of  the 
District  of  Columbia  for  the  sale  of  an  in- 
fant's real  property  for  purposes  of  rein- 
vestment, made  with  jurisdiction  over  the 
res  and  of  the  parties,  is  not  open  to  col- 
lateral attack,  even  though  the  court 
erred  in  holding  that  a  case  had  been  made. 


either  under  its  inherent  power  as  a  court 
of  equity,  or  its  statutory  authority. 
United  States  v.  Morse,  218  U.  S.  493,  54 
L.  Ed.  1123,  31  S.  Ct.  37. 

A  judgment  of  the  supreme  court  of  the 
District  of  Columbia  conhrming  a  special 
assessment  for  benefits  resulting  from  a 
street  extension  can  not  be  attacked  col- 
laterally because  that  court,  upon  an  ob- 
jection challenging  the  assessment  as  ex- 
cessive, did  not  call  the  second  jury  pro- 
vided for  by  D.  C.  Rev.  Stat..  §  263,  since 
this  was,  at  most,  an  error  which  can  only 
be  available  m  appropriate  proceedings  in 
error.  Briscoe  r.  Rudolph.  221  U.  S.  547, 
55  L.   Ed.  S4S.  31    S.   Ct.  679. 

629-95.  Statement  of  general  principles 
determining  right  to  relief. — Pickford  v. 
Talbott,  225  U.  S.  651,  56  L.  Ed.  1240,  32 
S.  Ct.  787. 

631-4.  Facts  must  not  have  been  dis- 
coverable by  due  diligence  and  inquiry, — 
Pickford  v.  Talb'ott,  225  U.  S.  651,  56  L. 
Ed.  1240,  32  S.  Ct.  787.  See  post,  LIBEL 
AXD  SLANDER. 

642-50.  Unpatented  lode  mining  claims 
are  "real  property,"  and  as  such  are  sub- 
ject to  the  lien  of  a  judgment  recovered 
against  their  owner  when  docketed  pur- 
suant to  Laws  Ariz.  1891.  Act  Xo.  50,  §  4; 
the  term  being  defined  by  a  territory  stat- 
ute in  force  when  the  judgment  in  ques- 
tion was  rendered  and  docketed  as  coex- 
tensive with  lands,  tenements,  and  heredit- 
aments. Judgment  (Ariz.  1906),  86  P.  6, 
affirmed.  Bradford  r.  Morrison,  212  U.  S. 
389.  53  L.  Ed.  564,  29  S.  Ct.  349. 

649-95.  Estoppel  to  assert  dormancy 
where  delay  caused  by  debtor. — A  munic- 


808 


Vol.  YU. 


JUDGMENTS  AXD  DECREES. 


651-667 


G.  Priorities — 3.  Between  Judgment  Liens  and  Other  Liens,  etc. — ■ 
a.    Subsequent  Adverse  Interests  and  Encumbrances. — See  note  12. 

XVI.    Judgments  by  Default,  and  Decrees  Pro  Confess©. 

B.  Decrees  Pro  Confesso — 3.  Grounds — b.  Failure  to  Plead,  Demur  or 
Ansicer  zvithin  Prescribed  Time. — See  note  75. 

6.  Hearing  and  Determination — b.  Procedure  on  Hearing — (1)  General 
Principles  Controlling  Rendition  of  Decrees  Pro  Confesso. — See  note  84. 

8.    Opening  and  Setting  Aside  Decree — b.    Grounds. — See  note  1. 


ipality  can  not  assert  the  dormancy,  un- 
der 2  Wilson's  Rev.  &  Ann.  St.  Okl.  1903, 
§  4635,  of  certain  judgments  against  it  for 
failure  to  issue  execution  thereon  within 
five  years,  where,  during  most  of  that 
period,  the  municipality  was  carrying  out 
its  contract  arrangement  with  its  judg- 
ment creditors  to  paj'  such  judgments  in 
the  order  of  their  rendition,  out  of  the 
judgment  fund,  the  effect  of  which  was  to 
prevent  the  judgment  creditors  from  tak- 
ing such  steps  as  the  law  permitted  to 
collect  their  judgments  by  execution  or 
mandamus.  Judgment  (1906),  87  P.  292, 
17  Okl.  162,  reversed.  Beadles  z'.  Smyser, 
209  U.  S.   393,   52   L.   Ed.  849.  28   S.   Ct.  522. 

651-12.  Transfers  of  property  subject  to 
lien. — The  lien  of  a  judgment  on  an  in- 
terest in  an  unpatented  lode  mining  claim 
is  not  destroyed  by  a  subsequent  convey- 
ance thereof.  Judgment  (Ariz.  1906)  86 
P.  6.  affirmed.  Bradford  t.  Morrison,  212 
U.   S.  389,  53   L.   Ed.   564,  29   S.   Ct.   349. 

663-75.  Failure  to  answer  supplemental 
bill. — A  supplemental  bill  filed  in  open 
court  and  served  on  defendants"  attorney 
on  the  same  day  on  which  it  was  filed  may 
be  taken  for  confessed  in  the  absence  of 
any  appearance  or  pleading  by  defendants 
for  more  than  the  20  days  within  whicH, 
under  Comp.  Laws  X.  M.  1897,  tit.  33, 
§§  2685-3377,  every  pleading  must  be  liled 
and  served  after  service  of  the  pleading 
to  which  it  is  an  answer,  demurrer,  or 
reply.  Decree,  United  States  v.  Rio 
Grande  Dam  &  Irrigation  Co.  (l906),  85 
P.  393,  13  N.  M.  386.  affirmed.  Rio  Grande, 
etc.,  Irrig.  Co.  v.  United  States,  215  U.  S. 
266,  54  L.   Ed.  190,  30  S.   Ct.  97. 

665-84.  To  be  made  according  to  what  is 
proper  to  be  decreed,  etc. — "The  final  de- 
cree following  a  pro  confesso  order  is  only  . 
such  a  decree  as  would  be  authorized  by 
the  state  of  the  pleadings  when  the  order 
was  entered.  Frow  i'.  De  La  Vega,  15 
Wall.  552.  21  L.  Ed.  60;  Dan.  Ch.  PI.  &  Pr. 
5th  Ed.  pp.  525-528,  and  notes;  Simmonds 
V.  Palles,  2  Jones  &  L.  489,  8  Ir.  Eq.  Rep. 
335;  Hardwick  v.  Bassett,  25  Mich.  149; 
McDonald  v.  Mobile  L.  Ins.  Co.,  6  Ala. 
468.  If  the  bill  was  fatally  defective  upon 
its  face,  showing  that  the  court  had  no 
jurisdiction,  it  was  error  to  allow  a  pro 
confesso,  and  upon  the  court's  attention 
being  called  to  it.  it  should  have  vacated 
the  order   and   allowed  the   defaulting  de- 


fendant to  defend.  Xelson  v.  Eaton,  13  C. 
C.  A.  523,  27  U.  S.  App.  677,  66  Fed.  376; 
Blythe  z:  Hinckley,  84  Fed.  228,  244;  El- 
dred  f.  American  Palace  Car  Co.,  103  Fed. 
209."  Cuebas  z:  Cuebas,  223  U.  S.  376,  56 
L.  Ed.  476,  32  S.  Ct.  277. 

Tlie  subsequent  amendment  of  a  bill  to 
foreclose  a  mortgage,  taken  pro  confesso, 
so  as  to  create  a  jurisdiction  which  had 
not  theretofore  existed,  by  dismissing  the 
bill  as  to  all  but  one  of  the  defaulting  de- 
fendants, and  by  striking  out  the  pra3^er 
that  any  and  every  claim,  interest,  or  en- 
cumbrance be  forever  barred  and  cut  ofif, 
will  not  justify  a  final  decree  against  the 
remaining  defendant  as'  of  a  date  before 
his  death,  based  upon  the  order  pro  con- 
fesso, but  upon  such  amendment  the  court 
should  set  aside  the  default  and  give  time 
to  defend.  Cuebas  v.  Cuebas,  223  U.  S. 
376,  56  L.   Ed.  476,  32  S.  Ct.  277. 

667-1.  Where  decree  taken  without  ac- 
tual service  o£  process  on  defendant. — An 
absolute  right  to  appear  in  and  defend 
within  a  year  after  final  judgment  a  suit 
to  enforce  a  lien  or  to  remove  a  cloud  on 
title  to  property  within  the  district  was 
given  to  absent  defendants  whenever  the 
jurisdiction  of  the  federal  circuit  court 
over  them  rested  upon  publication,  even 
though  they  may  in  fact  have  had  knowl- 
edge of  the  suit,  by  Act  March  3,  1875,  c. 
137,  §  8,  IS  Stat.  472  (U.  S.  Comp.  1901,  p. 
513)  conferring  such  right  upon  all  such 
defendants  who  have  not  been  "actually 
personally  notified  as  above  provided." 
the  previous  provisions  of  the  section  call- 
ing for  service  on  the  party  outside  of  the 
district  of  an  order  of  the  court  directed 
to  him,  and  requiring  him  to  appear  and 
defend  within  a  time  stated,  or,  if  not 
practicable,  for  notice  by  publication. 
Fernandez  :•.  Perez.  220  U.  S.  224.  55  L. 
Ed.  443.  31  S.  Ct.  412:  Blanco  z\  Hubbard, 
220  U.   S.  233,  55  L.   Ed.  447.  31   S.  Ct.  415. 

No  other  terms  than  the  paj-ment  of 
costs  can  be  imposed  bj'  the  court  in  open- 
ing a  decree  to  permit  absent  defendants 
served  only  by  publication  to  appear  in 
and  defend  a  suit  to  enforce  a  lien  or  re- 
move a  cloud  on  the  title  to  property 
within  the  district,  pursuant  to  Act  ^larch 
3,  1875,  c.  137,  §  8,  18  Stat.  472  (U.  S.  Comp. 
St.  1901,  p.  513),  providing  that  in  such 
cases  the  court  shall  make  an  order  set- 
ting  aside   the   judgment,    and   permitting 


809 


670-676 


JUDICIAL  NOTICE. 


Vol.  VII. 


JUDICIAL  ADMISSIONS.— See  ante,  Estoppel,  p.  553. 
JUDICIAL,    LEGISLATIVE   AND   MINISTERIAL.— See   note    1. 


JUDICIAL  NOTICE. 

II.  Matters  of  Common  Knowledge,  810. 

A.  In  General,  810. 

F.  Usages  and  Customs,  810. 

IV.  Historical  Facts,  811. 

F.  Ceded  Territory,  811. 
VI.  Public  Officers,  Records,  and  Documents,  81 L 

B.  Public  Records,  811. 

2.  Judicial  Records,   811. 
VIII.  Laws  and  Statutes,  811. 

D.  Acts  of  Congress,  811. 

J.  Laws  of  Prior  Governments,  811. 

CROSS  REFERENCES. 

See  the  title  J^udicial  Notice,  vol.  7,  p.  672,  and  references  there  given. 

II.  Matters  of  Common  Knowledge. 

A.    In  General. — See  note  10. 

F.    Usages  and  Customs. — A  court  may  judicially  notice  the  existence  in  the 
community  of  a  general  custom  to  use  coal  oil  in  kindling  fires. ^^^     While  the 


such  defendants  to  plead  therein  on  pay- 
ment of  such  costs  as  the  court  deems 
just.  Fernandez  v.  Perez,  220  U.  S-  224,  55 
L.  Ed.  443,  31  S.  Ct.  412;  Blanco  v.  Hub- 
tard,  220  U.  S.  233,  55  L.  Ed.  447,  31  S.  Ct. 
415. 

670-1.  "Judicial  power,  says  Mr.  Justice 
Miller  in  his  work  on  the  constitution,  'is 
the  power  ot  a  court  to  decide  and  pro- 
nounce a  judgment  and  carry  it  into  ef- 
fect between  persons  and  parties  who 
bring  a  case  before  it  for  decision.'  Mil- 
ler on  the  Constitution,  314."  Muskrat  v. 
United  States,  219  U.  S.  346,  356,  55  L.  Ed. 
246,  31   S.  Ct.  250. 

A  judicial  power  is  the  right  to  deter- 
mine actual  controversies  arising  between 
adverse  litigants,  duly  instituted  in  courts 
of  proper  jurisdiction.  Muskrat  v.  United 
States,  219  U.  S.  346,  361,  55  L.  Ed.  246,  31 
S.  Ct.  250. 

Judicial  and  legislative  act  distinguished. 
— A  judicial  inquiry  investigates,  declares 
and  enforces  liabilities  as  they  stand  on 
present  or  past  facts  and  under  laws  sup- 
posed already  to  exist.  That  is  its  pur- 
pose and  end.  Legislation  on  the  other 
hand  looks  to  the  future  and  changes  ex- 
isting conditions  by  making  a  new  rule  to 
be  applied  thereafter  to  all  or  some  part 
■of  those  subject  to  its  power.  The  estab- 
lishment of  a  rate  is  the  making  of  a  rule 


for  the  future,  and  therefore  is  an  act  leg- 
islative, not  judicial,  in  kind.  Proceed- 
ings legislative  in  nature  are  not  proceed- 
ings in  a  court  within  the  meaning  of  Rev. 
Stat.,  §  720,  prohibiting  federal  courts 
from  enjoining  proceedings  in  state  courts, 
no  matter  what  may  be  the  general  or 
dominant  character  of  the  body  in  which 
they  may  take  place.  Prentis  v.  Atlantic 
Coast  Line  Co.,  211  U.  S.  210,  226,  53  L. 
Ed.   150,  29  S.  Ct.  67. 

"The  function  of  rate  making  is  purely 
legislative  in  its  character,  and  this  is  true, 
whether  it  is  exercised  directly  by  the 
legislature  itself  or  by  some  subordinate 
or  administrative  body,  to  whom  the 
power  of  fixing  rates  in  detail  has  been 
delegated.  The  completed  act  derives  its 
authority  from  the  legislature  and  must 
be  regarded  as  an  exercise  of  the  legisla- 
tive power."  Moyer  v.  Peabody,  212  U. 
S.  78,  84,  53  L.  Ed.  410,  29  S.  Ct.  235. 

Performance  of  ministerial  duties. — As 
to  compelling  performance  of  a  mere  min- 
isterial duty,  see  post,  MANDAMUS. 

675-10.  Lindsley  v.  Natural  Carbonic 
Gas  Co.,  220  U.  S.  61,  79,  55  L.  Ed.  369,  31 
S.  Ct.  337. 

676-18a.  Use  of  coal  oil. — Judgment 
(1907),  89  P.  212,  18  Okl.  107,  affirmed. 
Waters-Pierce  Oil  Co.  v.  Deselms,  212  U. 
S.  159,  53  L.  Ed.  453,  29  S.  Ct.  270. 


810 


Vol.  VII.  JUDICIAL   RECORDS.  676-698 

supreme  court  may  take  judicial  notice  of  the  fact  that  black  powder  is  a  subject 
of  interstate  commerce.^'*''  it  will  not  take  notice  of  the  details  of  a  particular 
transaction  relating  thereto. ^^'^ 

IV.    Historical  Facts. 

F.    Ceded  Territory. — See  note  85. 

VI.  Public  Officers,  Records,  and  Documents. 

B.  Public  Records — 2.  Judicial,  Re:cords. — Decision  of  Interstate  Com- 
merce Court.- — Judicial  notice  of  a  decision  of  the  interstate  commerce  com- 
mission, authoritatively  published  in  its  reports,  need  not  be  taken  by  a  state 
court  because  of  the  provision  of  the  Act  of  Feb.  4,  1887,  c.  104,  §  14,  24  Stat. 
384  (U.  S.  Comp.  St.  1901,  p.  3164),  making  the  authorized  publications  of  the 
commission  competent  evidence  without  further  proof  or  authentication,  where 
such  decision  was  not  mentioned  in  the  pleadings  nor  in  the  agreed  statement  of 
facts,  since  the  purpose  of  the  statute  is  to  relieve  litigants  from  the  inconven- 
ience and  expense  of  obtaining  certified  copies  of  the  decisions,  and  it  does  not 
■otherwise  change  the  rules  of  evidence. ^''^ 

VIII.    Laws  and  Statutes. 

D.    Acts  of  Congress.— See  note  45. 

J.  Laws  of  Prior  Governments. — The  courts  will  take  judicial  notice  of  the 
Spanish  law  as  far  as  it  affects  the  insular  possessions  of  the  United  States.  It 
is  pro  tanto  no  longer  foreign  law.^^^ 

JUDICIAL  RECORDS.— See  ante,  Estoppel,  p.  553;    post,  Records. 

676-18b.      Articles     of     interstate     com-  inq-  judgment   (1908),  63  S.   E.  32.3,  64  W. 

merce.— Williams  v.  Walsh,  222  U.  S.  415,  Va.  406. 

421,  56  L.  Ed.  253,  32  S.  Ct.  137.  692-45.    Federal    Incorporation    Act.— A 

676-18C.     Details   of   particular   transac-  federal  court  will  notice  tliat  a  corporate 

tion. — W^illiams    z'.    Walsh,    222  U.  S.    415,  defendant  was  incorporated  by  an  Act  of 

421,  56  L-  Ed.  253,  32  S.  Ct.  137.  Congress,   even   without   any   averment   of 

684-85.     The  history  of  Porto  Rico  and  the  fact  in  the  petition.     In  re  Dunn,  212 

its    legal  and    political    institutions,  up    to  U.  S.  374,  53  L.  Ed.  558,  29  S.  Ct.  299. 

the  time  of  its  annexation  to  the  United  698-81a.  Law  of  prior  government  affect 

States,  are  matters  which  must  be  recog-  insular     possession. — Judicial      notice      is 

nizcd  by  the  federal  suoreme  court.  Ponce  taken   l)y  the    federal   supreme   court   that 

V.   Roman  Catholic  Apostolic  Church,  210  the    distinctions   between   law   and   equity, 

U.  S.  296,  52  L.  Ed.  1068,  28  S.  Ct.  737.  in  a  technical  sense,  do  not  obtain  in  the 

688-16a.     Decision  of  commerce  court. —  local  law  of  Porto  Rico.     Garzot  v.  Rubio, 

Robinson  v.  Baltimore,  etc.,  R.  Co.,  222  U.  209  U.  S.  283,  52  L.  Ed.  794,  28  S.  Ct.  548. 
S.  506,  56  L.  Ed.  288,  32  S.  Ct.  114,  affirm- 

811 


720-739  JURISDICTION.  Vol.  VII. 


JUDICIAL  SALES. 
XVI.  Return  of  Officer,  812. 

AYz.  Sufficiency  of  Return,  812. 

XVIII.  Setting  Sale  Aside,  812. 

F.  Grounds  for  Setting  Aside,  812. 
9.  Inadequacy  of  Price,  812. 

CROSS   REFERENCES. 

See  the  title  Judicial  Sales,  vol.  7,  p.  703,  and  references  there  given. 

XVI.    Return  of  Officer. 

A|.  Sufficiency  of  Return. — The  question  of  the  sufficiency  of  the  officer's 
return  of  a  description  of  the  land  is  a  question  of  general  law ;  no  act  of  con- 
gress attempts  to  define  what  is  a  sufficient  description  or  to  make  any  rule  by 
which  a  purchaser  of  the  marshal's  sale  can  take  possession  of  land  other  than 
as  described  in  the  process.-*^ 

XVIII.  Setting  Sale  Aside. 
F.    Grounds  for  Setting  Aside — 9.    Inadequacy  of  Price. — See  note  93. 

JUDICIARY  ACT.— See  ante.  Appeal  and  Error,  p.  34;  Courts,  p.  398; 
post,  Removal  of  Causes. 


JURISDICTION. 

I.  Definitions  and  Essentials,  812. 

A.  Definitions,   812. 

C.  Question  of  Substantive  Law  or  Jurisdiction,  813. 

CROSS   R^F^R^XCES. 

See  the  title  Jurisdiction,  vol.  7,  p.  738,  and  references  there  given.  See 
ante,  Appeal  and  Error,  p.  34;  Courts,  p.  398;  Equity,  p.  550;  Injunctions, 
p.  657;    and  the  particular  titles  throughout  this  supplement. 

In  addition,  see  post,  Venue. 

I.  Definitions  and  Essentials. 

A.  Definitions. — See  note  1.  In  legal  phraseology  the  power  of  the  court  to 
hear  and  decide  a  cause  is  termed  "jurisdiction."^^ 

720-28a.  Sufficiency  of  return.— The  Act  obtained.     Van  Gieson  v.  Maile,  213  U.  S. 

of   February  IG,   1839,  chap.  27,   §  4,   refer-  338,  53  L.  Ed.  821,  29  S.  Ct.  492. 

ring  to  the  time  and  place  for  making  judi-  739-1.  Definition.— Central  R.  Co.  v.  Jer- 

cial    sales    in    Mississippi    does    not    define  sey  City,  209  U.  S.  473,  52  L.  Ed.  896,  28  S. 

a    question   and   valid    description   by   the  Ct.  592.     See  ante,  BOUNDARIES,  p.  206. 

marshal,  and  if  the  sale,  even  if  irregular,  739-2a.  Jurisdiction  is  power  to  hear  and 

the     federal     court     has     no    jurisdiction.  decide  cause. — Davis  v.  Cleveland,  etc.,  R. 

Rogers  v.  Jones,  214  U.  S.  196,  53  L.   Ed.  Co.,  217  U.   S.   157,  172,  54  L.   Ed.   708,  30 

965,  29  S.  Ct.  635.  S.   Ct.   463.     See,   also,   ante,   COURTS,   p. 

727-93.  Inadequacy  of  price. — A  sale   in  398. 
defiance    of    a    restraining    order    by    the  Jurisdiction  is  authority  to  hear  and  de- 
court  rendering  judgment  will  be  set  aside,  termine.      Hine   v.    Morse,   218   U.    S.    493, 
where  its  existence,  whether  valid  or  not,  508,  54  L.  Ed.  1123,  31  S.  Ct.  37. 
was    cause    of    the    very    inadequate    price  It  is  none  the  less  a  jurisdictional  matter 

812 


Vol.  VII.  JURY.  740 

C.  Question  of  Substantive  Law  or  Jurisdiction. — Whether  a  given  stat- 
ute is  intended  simply  to  establish  a  rule  of  substantive  law,  and  thus  to  define 
the  duty  of  the  court,  or  is  meant  to  limit  its  power,  is  a  question  of  construc- 
tion and  common  sense.  W'hen  it  afifects  a  court  of  general  jurisdiction,  and 
deals  with  a  matter  upon  which  the  court  must  pass,  the  courts  are  slow  to  read 
ambiguous  words  as  meaning  to  leave  the  judgment  open  to  dispute,  or  as  in- 
tended to  do  more  than  to  fix  the  rule  by  which  the  court  should  decide."^ 

JURISDICTIONAL  FACTS.— See  ante,  Appeal  and  Error,  p.  34;  Courts, 
p.  398. 

JUROR. — See  ante.  Grand  Jury,  p.  609;   post.  Jury. 


JURY. 

I.  Right  to  Trial  by  Jury,  813. 

D.  In  What  Proceedings  a  Jury  May  Be  Demanded,  813. 

1.  Civil  Proceedings,  813. 

a.  Actions  at  Law,  813. 

(5)   What  Proceedings  Are  "Suits  at  Common  Law,"  within 
Meaning  of   Federal   Constitutio-n,   813. 
fa)    In  General,  814. 

2.  Criminal  Proceedings,  814. 

.    a.  Constitutional  Guaranties,  814. 

(1)   Constitution   of   the   United    States,    814. 

b.  What  Offenses  Are  Required  to  Be  Tried  by  Jury,  814. 

II.  Qualifications  of  Jurors,  814. 
C.  Impartiality,  814. 
VI.  Challenges,  814. 

C.  Challenge  for  Cause,  814. 

6.  Trial  of  Challenges,  814. 

b.  Challenge  on   Ground  That  Juror  Has   Formed  an  Opinion, 
814. 

IX.  Custody  and  Conduct  of  Jury,  815. 

D.  Reading  Newspapers,  815. 

CROSS  REFERENCES. 

See  the  title  Jury,  vol.  7.  p.  748,  and  references  there  given. 
In   addition,   see   ante,   Appeal,  and   Error,   p.   34;    post,   Res   Adjudicata  ; 
Special  Assessments. 

I.  Right  to  Trial  by  Jury. 

D.    In  What  Proceedings  a  Jury  May  Be  Demanded— 1.    Civil  Proceed- 
ings— a.  Actions  at  Laze — (  5  )    Uliat  Proceedings  Are  "Suits  at  Common  Latv," 

in  the  case  of  judgment  and  garnishment  the    title    LIMITATION    OF    ACTIONS 

of  the  property  of  a  nonresident  because  AND  ADVERSE  POSSESSION,  p.  921. 
the  power  of  the  court  to  proceed  to  trial  The  laws  of  Mississippi  making  dealing 

depends   in   the   absence   of  the   defendant  in  futures   a  misdemeanor,   and   providing 

upon   the   lawful   seizure    of  his   property.  tliat  contracts  of  that  sort,  made  without 

Davis  7'.  Cleveland,  etc.,  R-.  Co.,  217  U.  S.  intent  to  deliver  the  commodity  or  pay  the 

1.57,  172,  54  L.  Ed.  708.  30  S.  Ct.  463.  price,     "shall     not     be     enforced     by    any 

740-7a.   Question   of  substantive  law  or  court,"    does    not   deprive    the    Mississippi 

jurisdiction. — Fauntlcroy    v.    Lum,    210    U.  courts  of  jurisdiction.     Fauntlerov  v.  Lum, 

S.  230,  .52   L.   Ed.   1039,  28  S.   Ct.  641.     See  210  U.  S.  230,  52  L-  Ed.  1039,  28  S.  Ct.  641. 

813 


754-773 


JURY. 


Yo\.  VIL 


zvithin  Meaning  of  Federal  Constitution — (a)  In  General. — See  note  28. 

2.  Criminal,  Proceedings — a.  Constitutional  Guaranties — (1)  Constitution 
of  the  United  States. — In  the  absence  of  congressional  legislation  to  that  end^ 
there  is  no  right  to  demand  trial  by  jury  in  criminal  cases  in  the  Philippine 
Islands. *5<5a 

b.  What  Offenses  Are  Required  to  Be  Tried  by  Jury. — Where  the  violation  of 
a  statute  does  not  constitute  a  crime,  but  merely  entails  the  infliction  of  a  penalty, 
enforcible  in  some  cases  by  purely  administrative  action  and  in  others  by  a  civil 
suit,  one  against  whom  the  penalty  is  sought  to  be  enforced  is  not  entitled  to  a 
trial  by  jury.'''^^ 

II.    Qualifications  of  Jurors. 

C.  Impartiality. — At  common  law  one  is  not  a  competent  juror  in  a  case  if 
he  is  master,  servant,  steward,  counselor,  or  attorney  of  either  party,^'''^  and  un- 
der this  rule  an  employee  of  the  government  can  not  sit  as  a  juror  in  a  criminal 
proceeding  instituted  by  the  government. ^"^ 

VI.  Challenges. 
C.    Challenge    for    Cause — 6.    Trial    of    Chai,le:ngss — b.     Challenge     on 
Ground  That  Juror  Has  Formed  an  Opinion. — See  note  8. 


754-28.  What  proceedings  are  suits  at 
common  law  within  meaning  of  federal 
constitution. — The  seventh  amendment  of 
the  constitution,  securing  the  right  to  trial 
by  jury  in  suits  at  common  law,  extends 
to  rights  and  remedies  peculiarly  legal  in 
their  nature,  and  such  as  it  was  proper  to 
extend  in  courts  of  law  by  the  appropri- 
ate modes  and  proceedings  of  such  courts. 
In  re  Wood,  210  U.  S.  246,  52  L.  Ed.  1046, 

28  S.  Ct.  621. 

The  right  secured  by  this  provision  of 
the  constitution  is  not  infringed  by  the 
proceeding  authorized  by  Bankr.  Act  July 
1,  1898,  c.  541,  §  60d,  30  Stat.  562  (U.  S. 
Comp.  St.  1901,  p.  3446),  to  re-examine  and 
reduce  payments  and  transfers  of  prop- 
erty to  counsel,  made  by  a  bankrupt,  in 
contemplation  of  bankruptcy  proceedings, 
for  services  to  be  rendered.  In  re  Wood, 
210  U.  S.  246,  52  L.  Ed.  1046,  28  S.  Ct.  621. 

759-66a.  No  right  to  demand  trial  by 
jury  in  Philippine  Islands. — Dowdell  v. 
United  States,  221  U.  S.  325,  55  L.  Ed.  753, 
31  S.  Ct.  590. 

760-74a.  Penal  actions  in  which  there  is 
no  right  to  jury. — Oceanic  Steam  Nav.  Co. 
V.  Stranahan,  214  U.  S.  320,  53  L.  Ed.  1013, 

29  S.  Ct.  671. 

Empowering  the  secretary  of  commerce 
and  labor  to  exact  a  money  penalty  for 
bringing  into  the  United  States  an  alien 
afflicted  with  a  loathsome  or  dangerous 
contagious  disease,  in  violation  of  the  Act 
of  March  3,  1903,  §  9,  when  the  official 
medical  examination  at  the  port  of  arrival 
shows  that  the  alien  was  suffering  from 
the  disease  at  the  time  of  embarkation, 
the  existence  of  which  might  have  been 
detected  by  a  competent  medical  examina- 
tion then  made  as  the  statute  requires, 
does  not  render  such  statute  open  to  the 
objection  that  it  defines  a  criminal  ofifense, 
and  authorizes  a  purely  administrative  of- 


ficer to  determine  whether  the  defined 
crime  has  been  committed,  and,  if  so,  to 
inflict  a  punishment.  Oceanic  Steam  Nav. 
Co.  V.  Stranahan,  214  U.  S.  320,  53  L.  Ed. 
1013,  29  S.  Ct.  671. 

765-27a.  Master,  servant,  steward,  coun- 
selor or  attorney  of  either  party  excluded. 
—Crawford  v.  United  States,  212  U.  S. 
183,  53  L.  Ed.  465,  29  S.  Ct.  260,  reversing 
30  App.  D.  C.  1. 

765-27b.  Crawford  v.  United  States,  212 
U.  S.  183,  53  L.  Ed.  465,  29  S.  Ct.  260,  re- 
versing 30  App.  D.  C.  1. 

A  druggist,  whose  store  is  a  subpostal 
station,  and  who  is  paid  by  the  govern- 
ment for  taking  charge  of  the  substa- 
tion, is  disqualified  by  reason  of  his 
relation  as  employee  of  the  government 
from  acting  as  juror  in  a  prosecution  for 
conspiracy  to  defraud  the  United  States. 
Judgment  (1907),  30  App.  D.  C.  1,  re- 
versed. Crawford  v.  United  States,  212 
U.    S.    183,    53    L.    Ed.    465,   29    S.    Ct.   260. 

The  qualifications  prescribed  for  jurors 
in  the  District  of  Columbia  by  Code  of 
Laws  1901,  §  215,  do  not  furnish  the  only 
test  of  the  juror's  competency,  but  leave 
in  force  the  common-law  rule  under  which 
an  employee  of  the  government  can  not 
sit  as  a  juror  in  a  criminal  proceeding  in- 
stituted by  the  government.  Crawford  v. 
United  States,  212  U.  S.  183,  53  L.  Ed. 
465,   29    S.    Ct.   260. 

773-8.  The  trial  court's  refusal  to  sustain 
a  challenge  to  a  juror  for  cause  will  not 
be  disturbed  by  an  appellate  court,  where 
it  appears  irom  the  examination  of  such 
juror  that  h-e  had  not  talked  with  any  one 
who  purported  to  know  about  the  case 
of  his  own  knowledge,  but  that  he  had 
taken  newspaper  statements  for  facts, 
that  he  had  no  opinion  other  than  that 
derived  from  the  newspapers,  and  that 
evidence  would  change  it  very  easily,  al- 


814 


Vol.  VII. 


KXOWLEDGE. 


nS-779 


IX.    Custody  and  Conduct  of  Jury. 

D.  Reading  Newspapers. — The  trial  court  does  not  abuse  its  discretion  in 
refusing  to  grant  a  motion  for  a  new  trial  in  a  capital  case  because  the  jury, 
being  allowed  to  separate,  read  the  local  daily  newspapers  with  articles  about 
the  case,  while  the  trial  was  in  progress.'*'''  The  right  to  a  new  trial  on  the 
ground  that  the  jury  was  improperly  influenced  by  reading  the  newspapers  may 
be  lost  by  v/aiver.^'*' 

JUST.— See  note  2. 

JUSTA  PRESCRIPTION.— See  post.  Prescription. 

JUSTICE,  DEPARTMENT  OF.— See  post,  Uxited  States. 

JUSTICES  OF  THE  PEACE.— See  the  title  Justices  oe  the  Peace,  vol.  7, 
p.  780.  and  references  there  given.  In  addition,  see  ante.  Extradition,  p.  571. 

JUSTIFIABLE  HOMICIDE.— See  ante.  Homicide,  p.  619. 

JUSTO   TITULO.— See  post.  Prescription;    Titulo. 

KNOWLEDGE.— See  ante,  Estoppel,  p.  553;  E\^DENCE.  p.  558:  Fraud 
AND  Deceit,  p.  597:    post.  Limitation  oe  Actions  and  Adverse  Possession. 


thoiitrh  it  would  take  some  evidence  to 
remove  it,  and  he  testified  that,  if  the  evi- 
dence failed  to  prove  the  facts  alleged  in 
the  newspaper,  he  would  decide  accord- 
ing to  the  evidence  or  lack  of  evidence  at 
the  trial,  and  thought  he  could  try  the 
case  solely  upon  the  evidence,  fairly  and 
impartially.  (1910)  Holt  v.  United  States, 
218  U.  S.  245.  54  L.  Ed.  1021,  31  S.  Ct.  2, 
affirming  judgment  (C.  C.  1909),  168  F. 
141. 

778-47a.  Reading  newspapers  with  ar- 
ticles about  case. — Holt  :■.  United  States, 
218  U.  S.  245.  54  L.  Ed.  1021,  31  S.  Ct.  2. 

778-47b.  Right  to  new  trial  lost  by 
waiver. — Spreckels  z\  Brown.  212  U.  S. 
208,  53  L.  Ed.  476,  29  S.  Ct.  256.  See 
post,    NEW   TRIAL. 

A  new  .trial  need  not  be  granted  on  the 
ground  that  the  jury  was  improperly  in- 
fluenced by  newspaper  reports  that  the 
trial  judge,  in  the  absence  of  the  jury, 
stated,  on  a  motion  to  direct  a  verdict, 
that  he  was  inclined  in  favor  of  the  plain- 
tiff, though  still  having  some  doubt,  and 
that  he  might  set  aside  a  verdict  for  de- 
fendants, where  counsel  for  defendants,  in 
open   court,    stated   that   they   would   take 


their  chances  of  the  effect  of  such  reports 
upon  the  jury,  at  a  time  when  there  were 
several  wa3-s  in  which  the  jurors  could 
have  been  prevented  from  seeing  the  pa- 
pers, and  stopped  the  court  from  even 
giving  the  jury  instructions  not  to  read 
the  papers.  Spreckels  z\  Brown.  212  U. 
S.    208,    53    L.    Ed.    476.    29    S.    Ct.    256. 

779-2.  Just  cause. — In  an  Alabama  stat- 
ute, providing  in  substance,  that  the  re- 
fusal or  failure  to  perform  the  service 
contracted  for,  or  to  refund  the  money  ob- 
tained, in  a  contract  of  employment,  with- 
out just  cause,  should  be  prima  facie  evi- 
dence of  the  intent  to  injure  or  defraud, 
the  refusal  or  failure  to  perform  the  serv- 
ice, without  just  cause,  constitutes  the 
breach  of  the  contract.  The  justice  of  the 
grounds  of  refusal  or  failure  must,  of 
course,  be  determined  by  the  contractual 
obligation  assumed.  Whatever  the  rea- 
son for  leaving  the  service,  if.  judged  by 
the  terms  of  the  contract,  it  is  insufficient 
in  law.  it  is  not  "just  cause."  This  act  was 
held  invalid.  Bailev  r.  Alabama,  219  U.  S. 
219,  234,  55  L.  Ed.  'l91,  31  S.  Ct.  145.  See 
post.  SLAVERY  AND  INVOLUNTARY 
SERVITUDE. 


815 


786-788  LABOR.  Vol.  VII. 


LABOR. 

I.  In  General,  816. 
II.  National  Eight  Hour  Laws,  816. 

B.  Act  of  Congress  of  Aug.  1,  1892,  816. 

3.  Construction  of  Act,  816. 

c.  Extraordinan'   Emergency,   816. 

C.  Act  of  ^larch  4,  190/,  817. 

III.  State  Eight  Hour  Laws,  817. 

V.  Federal  Regulation  of  Hours  of  Telegraph  Operator,  817. 
VI.  State  Regulation  of  Hours  of  Women  Employees,  817. 
VII.  Labor  Organizations,  817. 

CROSS  REFERENCES. 

See  the  title  Labor,  vol.  7,  p.  786,  and  references  there  given. 

In  addition,  see  ante.  Constitutional  Law,  p.  264;  Due  Process  of  Law, 
p.  475;  Fellow  Servants,  p.  579;  Interstate  and  Foreign  Commerce,  p. 
689;    post.  Master  and  Servant;    Police  Power. 

As  to  constitutionality  of  federal  statutes  regulating  hours  of  labor  of  employ- 
ees of  interstate  carriers,  see  ante,  Constitutional  Law,  p.  264;  Due  Process 
OF  Law,  p.  475;  Interstate  and  Foreign  Commerce,  p.  689.  As  to  state  reg- 
ulation of  hours  of  employees  of  interstate  railways,  see  ante.  Interstate  and 
Foreign  Commerce,  p.  689.  As  to  discharge  of  employee  because  of  member- 
ship in  labor  organization,  see  ante.  Constitutional  Law,  p.  264;  Due  Proc- 
ess OF  Law,  p.  475;  Interstate  and  Foreign  Commerce,  p.  689;  post.  Mas- 
ter and  Servant.  As  to  combination  by  members  of  labor  organization  to  re- 
strain trade  or  boycott  manufacturers,  etc.,  see  post,  ^Ionopolies  and  Corporate 
Trusts;  Restraint  of  Trade.  As  to  hard  and  painful  labor  as  being  cruel  and 
imusual  punishment,  see  ante.  Constitutional  Law,  p.  264. 

I.  In  General. 
See  note  1. 

II.  National  Eight  Hour  Laws. 

B.    Act  of  Congress  of  Aug.  1,   1892 — 3.    Construction  of  Act — c.  Es- 

traordinary  Emergency. — The  extraordinary  emergency  within  the  meaning  of 
the  Act  of  Aug.  1.  1892,  c.  352,  27  Stat.  340  (  U.  S.  Comp.  Stat.  1901,  p.  2521  ), 
is  a  special  occurrence,  and  the  phrase  used  emphasizes  this.  It  is  not  an  emer- 
gency simply  which  is  expressed  by  it,  something  merely  sudden  and  unexpected, 
but  an  extraordinary  one — one  exceeding  the  common  degree.^ ^^  Xo  mere  re- 
quirement of  business  convenience  or  pecuniary  advantage  is  an  extraordinary 
emergency  within  the  meaning  of  the  act.^^*"  xAnd,  besides,  the  extraordinary 
emergency  which  relieves  from  the  act  is  not  one  that  is  contemplated  and  in- 
heres necessarily  in  the  work.     The  phrase  was  used  with  a  consciousness  of  its 

786-1.     In     general. — Adair     z\     United  788-lla.      Extraordinary      emergency. — 

States,  208  U.  S.  161,  52  L.  Ed.  436,  238  S.  United  States  v.  Garbish.  222  U.  S.  257,  56 

Ct.  277;   Muller  v.  Oregon,  208  U.   S.  412,  L.  Ed.  190,  32  S.  Ct.  77. 

52   L.    Ed.   551,   28    S.    Ct.   324;    Baltimore.  788-llb.     United    States   z:    Garbish,   222 

etc.,      R.      Co.     V.      Interstate     Commerce  U.  S.  257,  56  L.  Ed.  190.  32  S.  Ct.  77,  fol- 

Comm.,   221   U.   S.   012,   55   L.    Ed.   878,   31  lowing   Ellis   v.    United    States,   206   U.    S. 

S.    Ct.   021.  246,   257,   51    L.    Ed.   1047,   27   S.   Ct.    600. 

816 


Vol.  VII. 


LABOR   COMBIXATIOXS. 


788 


meaning  and  with  the  intention  of  conveying  such  meaning.     '"The  phrase  'con- 
tinuing extraordinary  emergency'  is  self-contradictory.'"^ '- 

C.  Act   of  March   4,    1907. — See  post,   "Federal   Regulation  of   Hours  of 
Telegraph  Operator."   \'. 


III.  State  Eight  Hour  Laws. 


See  note  12. 


"V.  Federal  Regulation  of  Hours  of  Telegraph  Operator. 

Requiring  a  railway  telegraph  operator  to  work  5y2  hours,  and  then,  after  an 
interval,  3^^  more  hours  in  the  same  24,  is  not  made  unlawful  by  the  provisions 
of  Act  ^larch  4,  1907,  c.  2939,  §§  2,  3,  34  Stat.  1415,  1416  (U.  S.  Comp.  St. 
Supp.  1909,  pp.  1170,  1171),  forbidding  common  carriers  to  permit  such  em- 
ployees to  be  on  duty  for  a  longer  period  than  9  hours  in  any  24-hour  period  in 
a  place  continuously  operated  night  and  day.^'*'' 

"VI.    State  Regulation  of  Hours  of  "Women  Employees. 

See  ante,  Constitutional  Law,  p.  264 ;  Due  Process  of  Law,  p.  475 ;  post, 
Police  Power. 

"VII.    Labor  Organizations. 

See  post,  ^Monopolies  and  Corporate  Trusts. 


LABOR  ASSOCIATIONS.— See  note  a. 

LABOR  COMBINATIONS.— See  ante.  Labor,  p.  816. 


788-llc.  United  States  z\  Garbish,  ?22 
U.    S.   2o:.   :.(>   L.    Ed.   190,   32   S.   Ct.   77. 

The  building  of  a  public  levee  on  the 
Mississippi  river  in  the  Eastern  District 
of  Louisiana  can  not  be  said  to  present 
at  all  times  an  extraordinary  emergency, 
within  the  meaning  of  Act  Aug.  1,  1892, 
c.  3.J2,  27  Stat.  340  (U.  S.  Comp.  St.  1901, 
p.  2521),  regulating  the  hours  oF  labor  of 
laborers  and  mechanics  on  public  works, 
and  makmg  it  unlawful  to  require  or  per- 
mit such  employees  to  work  a  longer  time 
except  in  cases  of  extraordinary  em.er- 
gencv.  United  States  z\  Garbish,  222  U. 
S.  2.57.  56  L.  Ed.  190,  32  S.  Ct.  77,  revers- 
ing judgment    ( C.    C.    1910),    180    F.    502. 

788-12.  State  eight  and  ten  hour  laws. 
—Adair  -•  United  States,  208  U.  S.  161, 
52  L.  Ed.  436.  28  S.  Ct.  277;  Muller  7-. 
Oregon,  208  U.  S.  412.  52  L.  Ed.  551,  28 
S.   Ct.   324. 

"We  held  in  Eochner  :'.  Xevv  York,  198 
U.  S.  45,  49  L.  Ed.  937,  25  S.  Ct.  539,  that 
a  law  providing  that  no  laborer  shall  be 
required  or  permitted  to  work  in  bakeries 
more  than  sixty  hours  in  a  v.-eek  or  ten 
hours  in  a  daj-  was  not  as  to  men  a  legiti- 

12   U   S    Enc— 52  817 


mate  exercise  of  the  police  power  of  the 
state,  but  an  unreasonable,  unnecessary, 
and  arbitrary  interference  with  the  right 
fiud  liberty  of  the  individual  to  contract 
in  relation  to  his  labor,  and  as  such  was 
in  conflict  with,  and  void  under,  the  fed- 
eral constitution."  Muller  z\  Oregon,  208 
U.  S.  412,  52  L.  Ed.  551,  28  S.  Ct.  324. 

788-14a.  Act  March  4,  1907.— United 
States  f.  Atchison,  etc.,  R.  Co.,  220  U.  S. 
37,  55  L.  Ed.  3G1,  31  S.  Ct.  362,  affirming 
177    Fed.    114,    100    C    C.    A.    .534. 

788-a.  "Labor  associations,  we  assume, 
are  organized  for  the  general  purpose  of 
improving  or  bettering  the  conditions  and 
conserving  the  interests  of  its  members  as 
wage  earners — an  object  entirely  legiti- 
mate and  to  be  commended  rather  than 
condemned.  But  surely  those  associations 
as  labor  organizations  have  nothing  to  do 
with  interstate  commerce  as  such."  Adair 
■V.  United  States,  208  U.  S.  161,  178,  52  L. 
Ed.  436,  28  S.  Ct.  277.  See  ante,  INTER- 
STATE AXD  FOREIGN  COMMERCE, 
p.  689;  post,  MONOPOLIES  AND  COR- 
PORATE TRUSTS. 


798-799 


LACHES. 


Vol.  VII. 


LACHES. 

II.  What  Constitutes  Laches,  818. 

B.  Elements,  818. 

3.  Delay  and  Want  of  Diligence,  818. 

a.  In  General,  818. 
6.  Prejudice  to  Adverse  Party,  819. 
8.  Acquiescence  or  Abandonment,  819. 

III.  Effect  of  Laches,  819. 

C.  Basis  for  Affirmative  Relief.  819. 

VIII.  Applying  Doctrine  in  Porto  Rico,  819. 

CROSS   REFERENCES. 

See  the  title  Laches,  vol.  7,  p.  790,  and  references  there  given. 

As  to  laches  barring  rights  of  trustee  in  bankruptcy,  see  ante.  Bankruptcy,, 
p.  168.  As  to  laches  barring  mandamus  to  enforce  compliance  with  mandate, 
see  post,  AIandate  and  Proceedings  Thereon.  As  to  laches  barring  enforce- 
ment of  resulting  trust  in  grant  of  public  lands,  see  post.  Public  Lands  ;  Trusts 
and  Trustees. 

II.    What   Constitutes   Laches. 

B.  Elements — 3.  Delay  and  Want  oe  Diligence — a.  In  General. — A  court 
of  equity  will  not  afford  relief  where  there  has  been  such  laches  as  cause  it  to 
be  inequitable  to  do  so.-^'^  While  laches  is  often  spoken  of  as  the  equitable 
equivalent  of  the  legal  statute  of  limitations,  yet  there  is  no  fixed  time  which 
makes  it  an  absolute  bar.-^^     Inaction  for  such  a  time  has  been  held  to  bar  a 


798-21a.  Creswill  v.  Grand  Lodge 
Knights  of  Pythias,  225  U.  S.  246,  56  L. 
Ed.  1074,  32  S.  Ct.  822,  following  Saxlehner 
V.  Eisner,  etc.,  Co.,  179  U.  S.  19,  35,  45  L. 
Ed.  60,  21  S.  Ct.  7.  See,  to  the  same  effect, 
Rock  Island  Plow  Co.  v.  Reardon.  222  U. 
S.  354,  56  L.   Ed.  231,  32  S.  Ct.  164. 

799-23a.  Wagg  v.  Herbert,  215  U.  S. 
546,    54   L.    Ed.   321,   30    S.    Ct.   218. 

"It  would  be  open  to  argument  whether 
laches  was  made  out,  even  under  our  law, 
sufficient  to  defeat  the  remedy  usually 
given  by  equity  to  enforce  a  purely  legal 
right;  in  other  words,  whether  mere 
laches  of  tim.e  short  of  the  statute  of  limi- 
tations, with  nothing  more,  should  defeat 
the  foreclosure  of  a  lien  supposed  still  to 
exist  at  law."  Noble  v.  Gallardo  y  Seary, 
223  U.   S.  65,  56  L.   Ed.  353,  32  S.   Ct.  194. 

In  Russell  v.  Southard.  12  How.  139, 
13  L.  Ed.  927,  there  was  between  the 
fraudulent  transaction  and  the  commence- 
ment of  the  suit  a  lapse  of  nineteen  years 
and  eight  months,  and  it  was  held  that 
that  was  not  sufficient,  the  court  saying: 
"The  absence  of  all  valuable  considera- 
tion for  the  surrender  of  the  equity,  and 
the  circumstances  of  distress  under  which 
it  was  made,  and  which,  so  far  as  it  ap- 
pears, continued  to  exist  down  to  the 
filing  of  the  bill,  coupled  with  the  con- 
viction,   which    we    think     Russell      mis- 


takingly  entertained,  that  his  rights  were 
probably  destroyed,  must  prevent  us  from 
allowing  the  lapse  of  time  to  be  a  positive 
bar."  Wagg  v.  Herbert.  215  U.  S.  546, 
54   L.   Ed.  321,  30  S.   Ct.  218. 

Suit  to  set  aside  deed. — A  delay  of  two 
years  and  one  month  in  bringing  suit  to 
cancel  a  conve3^ance  by  which  a  mort- 
gagee, by  means  of  fraud,  oppression, 
and  undue  influence,  acquired  in  settle- 
ment of  the  mortgage  debt  a  tract  of  land 
of  far  greater  value  than  the  amount  of 
such  debt,  is  not  such  laches  as  bars  the 
suit.  Wagg  V.  Herbert,  215  U.  S.  546,  54 
L.    Ed.   321,   30   S.    Ct.   218. 

Petition  in  intervention  to  enforce 
trust. — The  right  of  the  administratrix  of 
the  surety  on  a  forfeited  bail  bond,  as- 
serting an  express  trust  in  the  security's 
favor  in  certain  securities  held  by  a  third 
person,  to  intervene  in  a  suit  by  the 
United  States  to  charge  the  holder  of  the 
securities  with  a  trust  in  favor  of  the  gov- 
ernment, is  not  barred  by  laches  because 
the  petition  in  intervention  was  not  filed' 
until  the  evidence  in  the  suit  had  been 
taken  and  it  was  ready  for  final  hearing, 
where  such  petition  was  filed  shortly  after 
judgment  had  been  recovered  in  a  con- 
tested suit  on  the  bond.  Leary  v.  United 
States,  224  U.  S.  567,  56  L.  Ed.  889,  32  S. 
Ct.    599. 


818 


Vol.  MI. 


LACHES. 


799-824 


suit   for  accounting,--^''  a  bill   for  injunctive  relief--'"'  and  a  suit  to  set  aside   a 
sale  under  a  trust  deed.-^^ 

6.    Prejudice  to  Adverse  Party. — See  note  32. 

8.   Acquiescence  or  Abaxdoxmext. — See  note  34. 

III.  Effect  of  Laches. 
C.  Basis  for  Affirmative  Relief. — The  objection  of  laches  on  the  part  of 
the  grantors  in  attacking  a  sale  in  attachment  proceedings  of  property  covered 
by  a  trust  deed  is  not  available  to  the  defendants,  in  a  suit  to  set  aside  the 
attachment  proceedings  and  enforce  the  trust  deed,  who  claim  title  to  the  property 
under  the  attachment  proceedings,  where  they  make  their  title  the  basis  of  an 
assertion  of  a  right  to  affirmative  relief. ^-^ 

VIII.    Applying  Doctrine  in  Porto  Rico. 

The  injustice  which,  would  result  from  applying  the  doctrine  of  laches  to  the 
conduct  of  the  parties  in  Porto  Rico  during  the  many  years  that  were  not 
governed  by  any  rule  peculiar  to  chancery  courts  forbids  the  application  of  this 
doctrine  so  as  to  defeat  a  suit  to  foreclose  a  mortgage  or  lien  executed  in  1865, 
and  still  supposed  to  exist  at  law.  and  not  shown  to  be  barred  by  any  statute  of 
limitations,  especially  where  no  change  of  position  on  the  faith  of,  or  seemingly 
influenced  by,  the  acquiescence  of  the  complainants  of  their  predecessors,  is  dis- 
closed.^*^^ 


799-23b.  Suit  for  accounting. — Failure 
to  bring  suit  for  an  accounting  under  an 
agreement  to  divide  the  net  attorneys' 
fees  received  in  the  prosecution  of  French 
Spoliation  claims  until  two  j-ears  after  the 
enactment  of  the  Appropriation  Act  of 
:\Iarch  3,  1899  (30  Stat,  at  L.  1161,  1191, 
chap.  426,  U.  S.  Comp.  Stat.  1901.  p.  751), 
from  which  payment  might  be  made,  is 
not  such  laches  as  defeats  a  recovery. 
Earle  v.  Myers,  207  U.  S.  244,  52  L.  Ed. 
191,  28  S.  Ct.  86. 

Suit  by  surviving  partner. — The  delay 
in  filing  the  bill  will  not  bar  a  suit  for  an 
accounting  from  the  surviving  partner  in 
a  special  partnership  between  lawyers  for 
the  prosecution  of  a  number  of  claims 
against  the  United  States  in  congress  and 
before  the  court  of  claims,  the  fees  for 
which  services  were  contingent  upon  suc- 
cess, and  were  to  be  paid  in  solido,  and 
divided  between  the  partners  in  the  same 
manner,  where  such  bill,  though  not  filed 
until  eight  years  after  the  other  partner 
had  been  adjudged  a  lunatic,  and  three 
years  after  his  death,  was  filed  within 
four  months  after  the  fees  were  collected. 
Consaul  %'.  Cummings,  222  U.  S.  262.  56 
L.    Ed.   192.    32    S.    Ct.   83. 

799-23C.  Injunctive  relief. — The  inac- 
tion of  a  fraternal  order  during  the  many 
years  in  which  a  newer  order,  taking  the 
same  name,  has  existed  in  the  state  and 
has  exercised  its  attributes  and  functions, 
is  such  laches  as  defeats  the  former's 
right  to  injunctive  relief  against  the  in- 
fringement of  its  name  and  the  copying 
of  its  insignia  and  emblems.  Creswill  v. 
Grand  Lodge  Knights  of  Pvthias,  225  U. 
S.    246.    56    L.    Ed.    1074,    32    S.    Ct.    822. 

799-23d.     Suit    to    set    aside    sale    under 


trust  deed. — A  delay  of  four  j-ears,  dur- 
ing which  there  has  been  a  large  apprecia- 
tion in  the  value  of  the  property,  is  fatal 
to  any  right  to  require  a  tenant  in  com- 
mon to  give  his  cotenants  the  benefit  of 
liis  purchase  of  the  conimon  property  at 
a  public  sale  under  a  power  in  a  trust 
deed.  Starkweather  v.  Jenner,  216  U.  S. 
524,    54   L.    Ed.   602.    30   S.    Ct.    382. 

803-32.  It  seems  that  a  change  of  posi- 
tion on  the  faith  of,  or  seem.ingly  in- 
fluenced by,  the  quiescence  of  the  person 
alleged  to  be  guilty  of  laches  or  their 
predecessors,  must  be  disclosed  in  order 
to  establish  the  defense  of  laches.  Noble 
r.  Gallardo  y  Searv.  223  U.  S.  65,  56  L. 
Ed.  353.  32   S.  Ct.  194. 

805-34.  A  widow,  who.  being  the  dev- 
isee under  her  husband's  will,  received 
the  purchase  price  of  an  estate  in  real 
property  which  was  convcA^ed  by  his  ex- 
ecutor in  the  mistaken  belief  that  it  was 
subject  to  testamentary  devise,  and  rested 
ten  years  without  asserting  her  claim  to 
the  property  after  a  decision  of  the  highest 
court  of  the  state  to  the  effect  that  a 
moiety  of  such  property  was  in  law  her 
community  propertj',  must  be  deemed  to 
have  ratified  the  sale,  so  as  to  preclude 
her  grantees  from  asserting  title  as 
against  the  United  States,  claiming  un- 
der the  executor's  deed.  Hussey  i'.  United 
States.  222  U.  S.  88,  56  L.  Ed.  106,  32  S. 
Ct.  33. 

809-42a.  Basis  for  affirmative  relief. — 
Southern  Pine  Lumber  Co.  :'.  Ward.  208 
U.  S.  126.  52  L.  Ed.  420.  28  S.  Ct.  239,  af- 
firming 16   Okl.   131.   85  Pac.  459. 

824-80a.  Application  to  Porto  Rico. — 
Xoble  7-.  Gallardo  v  Seary,  223  U.  S.  65, 
56  L.   Ed.   353,  32   S.   Ct.  194. 


819 


82  5-833  LANDLORD  AND   TENANT.  Vol.  VII 

LAKES. — See   ante,   Admiralty,   p.    10;     Inte;rstate   and   Foreign    Com- 
merce, p.  689 ;   post,  Navigable  Waters. 
LAND.— See  note  4. 
LAND  DEPARTMENT.— See  post,  Public  Lands. 

LANDLORD  AND  TENANT. 
IV.  Lease  or  Contract  of  Rental,  820. 

Oy2.  Covenant  to  Pay  Taxes,  820. 
Vn.  Assignment  and  Subletting,  821. 

C.  Covenants  against  Assigning  or  Subletting,  821. 

IX.  Rent,  821. 

H.  Landlord's  Lien,  821. 

1.  In  General,  821. 

2.  When  Lien  Attaches,  821. 

a.  At  Common  Law,  821. 
I.  Action  for  Recovery  of  Rent,  821. 
2.  Distress,  821.      ' 

a.  In  General,   821. 

CROSS    REFERENCES. 

See  the  title  Landlord  and  Tenant,  vol.  7,  p.  827,  and  references  there  given. 
In  addition,  see  ante.  Fixtures,  p.  583.  i 

IV.  Lease  or  Contract  of  Rental. 

G|.  Covenant  to  Pay  Taxes. — The  covenant  of  a  perpetual  leaseholder 
with  his  municipal  lessor  to  pay  the  public  taxes  which  shall  become  due  on  the 
land  embraces  municipal  taxes  wdienever  they  can  thereafter  be  lawfully  assessed 
on  the  land  or  the  improvements  which  are  part  of  the  land,  although  when  the 
lease  was  made  the  municipality  had  no  power  of  taxation.-'^'' 

825-4.  To   land. — Section   18   of  the    Im-  pretext    to  get    here,    desert,    and  get    in. 

migration  Act  of  March  3,  190.3,  makes  it  Therefore    the    ordinary    case    of    a    sailor 

the   duty   of   any   officer  in   charge   of  any  deserting  while  on  shore  leave  is  not  com- 

vessel    bringing    an    alien    to    the    United  prehended    by    the    provisions    of   the    act, 

States  to  adopt  due  precaution  to  preveiri  notwithstanding    the    omission    from    this 

the  landing  of  such  alien  at  any  time   or  section    of    the    word    "immigrant"    which 

place    other   than   that   designated   by   the  had    followed    the    word    "alien"     in    the 

immigration   officers,   and  punishes  him   if  earlier  acts.     Taylor  v.  United  vStates,  207 

he  lands   or  permits  to  land  any  alien  at  U.  S.  120,  52  L.  Ed.  130,  28  S.  Ct.  53.     See 

any    other    time    or    place.      Literally,    the  ante,  ALIENS,  p.  18. 

later  words  "to  land"  means  to  go  ashore.  Criminal  jurisdiction  over  lands  reserved 

The  words  must  be  taken  in  thoir  literal  or  acquired  for  use  of  the  United  States. — 

sense.     "Landing  from  such  vessel"  takes  See  ante,   CRIMINAL  LAW.  p.  434:. 
place    and   is   completed   the    moment   the  833-31a.    Covenant  to  pay  taxes. — Perry 

vessel  is  left  and  the  shore  reached.     But  Co.   v.   Norfolk,   220   U.   S.   472,   55   L.    Ed. 

it  is  necessary  to  all  commerce,  as  all  ad-  548,    31    S.    Ct.    465,    affirming    judgment, 

mit,  that  sailors  should  go  ashore,  and  no  City    of    Norfolk    v.    J.     W.      Perry      Co. 

one  believes  that  the  statute  intended  alio-  (1908),  61   S.   E.  867,  108  Va.  28,  and  City 

gether  to  prohibit  their  doing  so.     Reject-  of  Norfolk  v.  White   (1908),  61   S.   E.  870, 

ing    the    ambiguous    interpretation    of   "to  108  Va.  35. 

land"  the  necessary  result  can  be  reached  "It  is  true   that  in  the  present  case  the 

only  by  saying  that  the   section   does   not  indenture  uses  apt  words  to  create  a  lease, 

apply   to    sailors    carried   to   an    American  and    the    Virginia   court   held    that    it   Was 

port  with  the  bona  fide  intent  to  take  them  technically  such.     But  there  are  other  and 

out   again   when   the    ship   goes    on,   when  controlling    features    which     show      that, 

not  only  there  was  no  ground  for  suppos-  even   if   the   legal   title   is   in   the   city,   the 

ing  that  they  were  making  the  voyage  a  lessees    have    rights    different    from    those 

820 


\'oI.  MI. 


LANDLORD  AND    TENANT. 


837-843 


VII.  Assignment  and  Subletting. 
C.  Covenants  against  Assigning  or  Subletting. — It  is  said  by  some 
textwriters  that  an  ordinary  covenant  against  subletting  and  assignment  is  not 
broken  by  a  transfer  of  the  leased  premises  by  operation  of  law,  but  the  covenant 
may  be  so  drawn  as  to  expressly  prohibit  such  a  transfer,  and  in  that  case  the 
lease  would  be  forfeited  by  an  assignment  by  operation  of  law.'^^^ 

IX.    Rent. 

H.     Landlord's  Lien — 1.    In  General. — See  note  71. 

2.    When  Liex  Attaches — a.   At  Common  Law. — See  note  72. 

I.  Action  for  Recovery  of  Rent — 2.  Distress — a.  In  General. — Issuance 
of  Warrant. — In  issuing  a  distress  warrant  under  the  laws  of  Georgia,  a 
justice   acts  ministerially.'^ ^^ 


usual  in  a  mere  leasehold  estate.  On  con- 
dition broken,  they  do  not  ipso  facto 
lose  all  interest  in  the  property  and  its 
proceeds.  The  contract  does  not  contain 
the  common  stipulation  that  the  tenant 
shall  be  compensated  for  his  permanent 
improvements.  On  the  tenant's  default 
the  city  can  not  at  once  enter  into  pos- 
session, but  'the  lot  and  improvements 
shall  be  leased  out  at  public  outcry  for 
the  remainder  of  the  term,'  and  after  de- 
ducting- unpaid  rent  and  taxes  the  over- 
plus, if  any,  shall  be  paid  to  the  lessees. 
This  overplus  would  represent,  in  part, 
the  value  of  permanent  improvements  and 
also  of  the  unexpired  term.  Selling-  the 
city's  property  to  pay  rent  due  the  city  is 
not  at  all  consistent  with  the  idea  of  a 
mere  lease.  It  indicated  rather  that  the 
tenant  had  a  substantial  interest  in  the 
property  which  was  security  for  the  pay- 
ment of  whatever  he  owed  the  city.  The 
contract  creates  an  estate  somewhat  like 
the  perpetual  lease  of  the  civil  law,  where 
the  tenant  was  for  inany  purposes  treated 
as  owner,  and  liable  for  taxes.  Merlin 
Rep.,  vol.  10,  p.  232;  Cooper's  Inst.  277, 
278;  Sohmn's  Inst,  3d  Ed.,  346.  It  was 
also  similar  in  its  nature  to  ground  rent, 
where  an  annual  rental  and  public  taxes 
are  perpetually  charged  on  the  land,  in- 
stead of  a  gross  sum  being  paid  or 
secured.  There  the  grantor  is  treated  as 
having  a  fee  in  the  rent  reserved,  and  the 
grantee  a  fee  in  the  land,  subject,  among 
other  things,  to  the  payment  of  public 
taxes.  Duane  on  Landlord  and  Tenant, 
96;  Cadwallader  on  Ground  Rent,  101; 
Robinson  v.  County  of  Allegheny,  7  Pa. 
St.  161."  Perry  Co.  v.  Norfolk,  220  U.  S. 
472,  478,  55  L.   Ed.  548,  31  S.  Ct.  465. 

837-51a.  Covenant  against  assigning,  etc. 
— Gazlay  z:  Williams,  210  U.  S.  41,  47,  52 
L.  Ed.  950,  28  S.  Ct.  087,  quoting  from 
Jones  on  Landlord  and  Tenant. 

Sale  by  trustee  in  bankruptcy. — A  sale 
i)y  a  trustee  in  bankruptcy,  under  order 
of  court,  of  his  bankrupt's  interest  as 
lessee  in  a  lease  of  real  property,  is  not 
a  breach  of  a  condition  in  such  lease,  im- 
posing a  forfeiture  if  the  lessee  assigned 
the  lease,  or  the  lessee's  interest  should 
be    sold    under    execution    or    other    legal 


process  without  the  lessor's  written  con- 
sent. Judgment  (1906),  147  F.  678,  77  C. 
C.  A.  662,  affirmed.  Gazlay  v.  Williams, 
210  U.  S.  41.  52  L.  Ed.  950,  28  S.  Ct.  6S7. 
See  ante,  BAXKRUPTCY.  p.  168. 

841-71.  The  right  given  a  landlord  un- 
der the  Code  of  Georgia  which  (by 
§§  2787,  3124,  2795)  expressly  establishes 
Hens  in  favor  of  landlords,  and  gives 
them  power  to  distrain  for  rent  as  soon 
as  the  same  is  due,  and  declares  that  land- 
lords shall  have  a  general  lien  on  the 
property  of  the  tenant  liable  to  levy  and 
sale  *  *  *  which  dates  from  the  levy  of 
the  distress  warrant  to  enforce  the  same 
is  the  full  equivalent  of  a  common-law 
distress.  The  fact  that  the  warrant  could 
be  levied  upon  property  which  had  never 
been  on  the  rented  premises  does  not 
change  the  nature  of  the  landlord's  tight, 
though  it  may  increase  the  extent  of  his 
security.  Henderson  t'.  ]\Iayer,  225  U.  S. 
631,   638,   56   L.    Ed.   1233,   32   S.    Ct.   699. 

While  under  the  law  of  Georgia  the 
owners  of  agricultural  lands  have  a  spe- 
cial lien  on  the  crops,  there  is  no  inten- 
tion to  deprive  the  proprietor  of  urban 
and  other  real  estate  of  the  lien  for  rent 
which  here,  as  in  other  states,  is  treated 
as  an  incident  growing  out  of  the  relation 
of  landlord  and  tenant.  Henderson  v. 
Maver.  225  U.  S.  631,  638,  56  L.  Ed.  1233, 
32   S.   Ct.   699. 

842-72.  At  common  law. — "The  pledge, 
or  quasi-pledge,  which  the  landlord  is 
said  to  have  is,  at  most,  only  a  power  to 
seize  chattels  found  on  the  rented  prem- 
ises. These  he  could  take  into  posses- 
sion and  hold  until  the  rent  was  paid. 
Doe  ex  dem  Gladney  v.  Deavors,  11  Ga. 
79,  84.  But  before  the  distraint  the  land- 
lord at  common  law  has  'no  lien  on  any 
particular  portion  of  the  goods  and  is 
only  an  ordinary  creditor  except  that  he 
has  the  right  of  distress  by  reason  of 
which  he  may  place  himself  in  a  better 
position.'  "  Sutton  v.  Reese,  9  Jur.  (U. 
S.)  456,  Henderson  z:  Mayer.  225  U.  S. 
631,    (•):i7,    56    L.    Ed.    1233,   32    S.    Ct.    699. 

843-75a.  Issuance  of  warrant  ministerial. 
— Savage  v.  Oliver.  110  Georgia  636. 
Henderson  v.  Mayer,  225  U.  S.  631,  639, 
56  L.    Ed.   1233,   32   S.   Ct.  699. 


821 


845-8  50  LBGAL  CONCLUSIONS.  Vol.  VII. 

LANDLORD'S  LIEN.— See  ante,  Landlord  and  Tenant,  p.  820. 

LANDMARKS.— See  ante,  BouNDARms,  p.  206. 

LAND  OFFICE.— See  post,  Pubuc  Lands. 

LAND  OFFICERS. — See  post.  Mandamus;  Mines  and  Minerals;  Public 
Lands. 

LAND  PATENTS,— See  post,  Pubuc  Lands. 

LARCENY. — See  the  title  Larceny,  vol.  7,  p.  844,  and  references  there 
given. 

LAST  CLEAR  CHANCE.— See  post.  Negligence. 

LATERAL  BRANCH  LINE.— See  note  3a. 

LATERAL  OR  BRANCH  ROADS.— See  post,  Public  Lands;  Railroads. 
LAW.— See  note  846-1. 

LAW  MERCHANT.— See  ante,  Bills,  Notes  and  Checks,  p.  204. 

LAW  OF  NATIONS.— See  ante,  International  Law,  p.  686. 

LAW  OF  THE  CASE.^See  ante.  Appeal  and  Error,  p.  34;  Courts,  p.  398. 

LAW  OF  THE  ROAD.— See  ante.  Collision,  p.  243;  post.  Streets  and 
Highways. 

LAWYER. — See  ante,  Attorney  and  Client,  p.  158. 

LAYING  VENUE.— See  post.  Postal  Laws. 

LAY  WITNESS. — See  ante,  Expert  and  Opinion  Evidence,  p.  569. 

LEGACY.— See  post,  Wiles. 


LEGAL  CONCLUSIONS. 

CROSS   REFERENCES. 

See  the  title  Legal  Conclusions,  vol.  7,  p.  849,  and  references  there  given. 

General  Rule.— See  note  849-1. 

What  Are  Legal  Conclusions. — A  mere  statement  that  a  statute  is  uncon- 
stitutional without  setting  forth  facts  which  would  make  the  operation  of  the 
statute  unconstitutional  is  a  legal  conclusion. ^^^     Averments  that  a  mutual  life 

845-3a.  Lateral  branch  line.— See  Inter-  4.36,    56    L.    Ed.    1152,    32  S.    Ct.    739.      See 

state  Commerce  Comni.  v.  Delaware,  etc.,  ante,  APPEAL  AND  ERROR,  p.  34. 
R.  Co.,  216  U.  S.  531,  54  L.  Ed.  605,  30  S.  849-1.     General   rule.— Southern    R.    Co. 

Ct.   415.     See  ante,   INTERSTATE  AND  i:   King,  217  U.   S.  524,  54  L.   Ed.  868,  30 

FOREIGN  COMMERCE,  p.  689.  S.  Ct.  594. 

846-1.  "Law  is  a  statement  of  the  cir-  Applies  to  the  practice  in  Georgia. — 
cumstances  in  which  the  public  force  will  Southern  R.  Co.  v.  King,  217  U.  S.  524, 
be  brought  to  bear  upon  men  through  the  54  L.  Ed.  868,  30  S.  Ct.  594. 
courts.  But  the  word  commonly  is  con-  850-14a.  Mere  statement  that  statute 
fined  to  such  prophecies  or  threats  when  unconstitutional. — General  averments  in 
addressed  to  persons  living  withm  the  an  amended  answer  in  an  action  to  re- 
power  of  the  courts.  A  threat  that  de-  cover  damages  from  a  railway  company 
pends  upon  the  choice  of  the  party  affected  for  a  wrongful  death  caused  by  violation 
to  bring  himself  within  that  power  hardly  of  Civ.  Code  Ga.  1895,  §  2222,  requiring 
would  be  called  law  in  the  ordinary  the  slackening  of  speed  at  highway  cross- 
sense."  American  Banana  Co.  v.  United  ings,  that  such  statute  violates  the  corn- 
Fruit  Co.,  213  U.  S.  347,  356,  53  L.  Ed.  826,  merce  clause,  and  is  a  direct  burden  upon 
29  S.  Ct.  511.  See  post.  MONOPOLIES  and  impedes  traffic,  and  impairs  the  use- 
AND  CORPORATE  TRUSTS.  fulness  of  the  railway  company's  facilities 

Law  of  the  case. — The  phrase  "law  of  for  that  purpose,  and  that  it  is  impossible 
the  case,"  as  applied  to  the  effect  of  a  de-  to  observe  the  statute  in  carrying  mails 
cision  of  .an  appellate  court  in  an  earlier  and  interstate  commerce  business,  are  not 
appeal  in  the  same  case,  merely  expresses.  sufficient  as  against  demurrer,  since  they 
in  the  absence  of  statute,  the  practice  of  are  mere  conclusions,  and  do  not  show 
courts  generally  to  refuse  to  reopen  what  the  number  or  location  of  the  crossings 
has  been  decided,  and  not  a  limit  to  their  at  which  the  railway  company  will  be  re- 
power.     Messenger  v.  Anderson,  225  U.  S.  quired   to   check    the    speed    of   its    trains, 

822 


Vol.  VII.  LIABILITY— LIABLE.  850-855 

insurance  company  is  liable  to  its  policy  holders  for  frauds  committed  by  its 
officers  against  the  company  and  insolvency  as  a  result  thereof  are  legal  con- 
clusions.^^'^ 

Effect  of  Demurrer. — See  note  17. 

Admissions  on  Demurrer. — See  note  18. 

LEGAL  REPRESENTATIVE.— See  ante,  Executors  and  Administrators, 
p.  564. 

LEGATEES  AND  DISTRIBUTEES.— See  ante,  Executors  and  Admin- 
istrators, p.  564;  post,  Wills. 

LEGISLATIVE. — See  ante.  Carriers,  p.  216;  Constitutional  Law,  p. 
264;  Courts,  p.  398;  Injunctions,  p.  657.  And  see  ante,  Judicial,  Legisla- 
tive AND  Ministerial. 

LEGISLATIVE  BOARD.— See  ante,  Constitutional  Law,  p.  264;  post, 
Public  Officers. 

LEGITIMATION.— See  ante,  Bastardy,  p.  201. 

LESSOR  AND  LESSEE.— See  ante,  Landlord  and  Tenant,  p.  820. 

LETTERS. — See  ante.  Best  and  Secondary  Evidence,  p.  202;  Documen- 
tary Evidence,  p.  469;    post.  Postal  Laws. 

LETTERS  OF  ADMINISTRATION.— See  ante,  Executors  and  Admin- 
istrators, p.  564. 

LETTERS  OF  ATTORNEY.— See  post.  Powers. 

LETTERS  OF  CREDIT.— See  the  title  Letters  oe  Credit,  vol.  7,  p.  854, 
and  references  there  g\'en. 

LETTERS  PATENT.— See  post.  Patents. 

LEVEES.— See  the  title  LeveEs,  vol.  7,  p.  854,  and  references  there  given. 

LEVY. — See  ante,  Attachment  and  Garnishment,  p.  156;  Executions, 
p.  563. 

LEX  DOMICILII.— See  ante.  Domicile,  p.  472. 

LEX  FORI. — See  ante.  Conflict  of  Laws,  p.  250. 

LEX  LOCI  CONTRACTUS.— See  ante,  Conflict  of  Laws.  p.  250. 

LEX  LOCI  REI  SIT^.— See  ante,  Conflict  of  Laws,  p.  250. 

LIABILITY— LIABLE.— See  note  8. 

nor  that   the   particular  crossing  is   not  a  Applies  to  practice  in  Georgia. — South- 
dangerous  one.     Southern  R.  Co.  7'.   King,  ern   R.   Co.   z'.   King,   217   U.   S.   524,   54  L. 
217  U.   S.  524,  54  L.   Ed.  868,  30  S.   Ct.  594,  Ed.    BOS,    30    S.    Ct.    594. 
affirming  judgment   (1908),  160  F.  332,  87  851-18.    Legal  conclusions  not  admitted 
C.   C.  A.  284.  on  demurrer. — Equitable  Life  Assur.  See. 

850-14b.  Averment  as  to  liability  of  Mu-  v.  Brown,  213  U.  S.  25,  43,  53  L.  Ed.  682, 

tual  Life  Insurance  Company. — Equitable  29   S.   Ct.  404.     See,  also,  ante,   DEMUR- 

Life   Assur.   Soc.   v.   Brown,   213   U.    S.   25,  RERS,  p.   461. 

50,   53   L.   Ed.  682,  29   S.   Ct.  404.  855-8.     Liabilities.— The   limitation  of  a 

Allegations  of  insolvency  contained  in  shipowner's  liability  from  marine  torts 
a  bill  filed  by  a  policy  holder,  for  an  ac-  not  the  result  of  his  own  faults,  was  ex- 
counting  or  for  the  appointment  of  a  re-  tended  to  nonmarine  tort  by  the  provi- 
ceiver  to  wind  up  the  affairs  of  a  mutual  sions  of  the  Act  of  June  26,  1884,  limitin.g 
life  insurance  company  which  are  based  the  individual  liability  of  the  shipowner 
upon  the  idea  that  the  company  itself  is  for  "any  and  all  delfts  and  liabilities,"  ex- 
liable  to  policy  holders  for  frauds  or  cept  wages  and  liabilities  incurred  prior  to 
wrongdoing  committed  by  the  officers  or  such  enactment,  to  his  share  in  the  vessel, 
directors  a.gainst  the  company,  and  in  and  the  aggregate  liabilities  of  all  own- 
their  personal  interests,  are  legal  con-  ers  of  the  vessel  on  account  of  the  same 
elusions.  Equitable  Life  Assur.  Soc.  v.  to  the  value  of  the  vessel  and  freight 
Brown,  213  U.  S.  25,  53  L.  Ed.  682,  29  S.  pending.  Richardson  v.  Harmon.  222  U. 
Ct.  404.  S.  96,  56  L.  Ed.  110,  32  S.  Ct.  27.     See  ante, 

851-17.    May  be  demurred  to.— See  ante,  COLLISION,  p.  243;  post,   SHIPS  AND 

DEMURRERS,  p.  461.  SHIPPING. 

823 


8  58-859  LIBEL  AND  SLANDER.  Vol.  VII. 


LIBEL  AND  SLANDER. 

I.  Definitions,  824. 

II.  Right  to  Maintain  Action,  824. 

E.  Words    Tending    to    Injure    Another    in    His    Trade,    Occiipa1:ion    or 
Calling,  824. 

V.  Publication,   825. 

VIII.  Justification  and  Defenses,  825. 
A.  Truth  as  a  Defense,  825. 
B>^.  Mistake,  825. 

X.  Pleading  and  Practice,  825. 

E.  Judgment — Equitable    Relief,    825. 

XI.  Criminal  Law,  826. 

CROSS   REFERENCES. 

See  the  title  Libel  .\nd  Slander,  vol.  7,  p.  'S>?7 ,  and  references  there  given. 

I.    Definitions. 

Quaere,  whether  attributing  to  a  person's  conduct  that  is  lawful  can  be  libel. ^'^ 

II.    Right  to  Maintain  Action. 

E.  Words  Tending  to  Injure  Another  in  His  Trade,  Occupation  or 
Calling. — Criticism  and  Comment  on  Conduct  of  Public  Officer. — Anything 
bearing  upon  the  acts  of  a  public  officer  connected  with  his  office  is  a  legitimate 
subject  of  statement  and  comment,  at  least  in  the  absence  of  express  malice. ^-^ 

Injuring  Standing  with  General  Public. — A  publication  can  not  be  held 
as  a  matter  of  law  not  to  be  libelous  because  it  may  not  injure  the  plaintifif's 
standing  with  the  general  public,  if  it  may  injure  her  in  the  estimation  of  a 
considerable  and  respectable  class  of  the  community.^-'' 

858-la.  Definition. — Gandia  i'.  Pettingill,  '    Porto    Rico    considered    the    acts    charged 

222  U.  S.  452,  457,  56  L.  Ed.  267,  32  S.  Ct.  as   immoral,   and   where,   had   the   plaintiff 

127.  been   a  local   officer,   such   conduct   would 

859-12a.   Criticism  and  comment  on  con-  have     been    forbidden    by    the    local     law. 

duct  of  public  officer. — Gandia  v.  Petting-  Gandia   v.    Pettingill,  222  U.    S.  452,  56    L. 

ill,   222   U.   S.   452,   56   L.   Ed.   267,   32   S.   Ct.  Ed.  267,  32  S.  Ct.  127. 

127.  859-12b.    Injuring  standing  with  general 

Necessity  for  malice. — The  refusal  to  in-  public. — Peck  ?-.  Tribune  Co.,  214  U.  S. 
struct  the  jury  in  an  action  for  libel  in  185,  53  L.  Ed.  960,  29  S.  Ct.  554. 
publishing  newspaper  articles  charging  Publication  of  portrait  of  nurse  in 
the  United  States  attorney  for  Porto  Rico  whiskey  advertisement. — The  publication 
with  carrying  on  a  private  practice  and  in  an  advertisement  for  a  brand  of 
acting  as  lawyer  on  behalf  of  persons  whiskey  of  the  portrait  of  a  woman,  in 
bringing  suit  against  the  local  govern-  connection  with  a  signed  statement  pur- 
ment,  which  the  articles  characterize  as  porting  to  have  been  made  by  her,  that 
a  monstrous  immorality,  a  scandal,  etc.,  she  is  a  nurse,  and  has  used  the  whiskey 
that  so  far  as  the  publication  of  facts  dis-  for  herself  and  patients,  and  recommends 
approved  by  the  community  was  con-  it.  can  not  be  said  as  a  matter  of  law  not 
cerned,  the  plaintiff  coyld  not  recover,  to  be  libelous,  because  such  publication 
however  technically  lawful  his  conduct  may  not  injure  her  standing  with  the  gen- 
might  have  been,  unless  there  was  ex-  eral  public.  Judgment  (1907),  154  F.  330, 
press  malice,  or  the  comment  went  be-  83  C-  C.  A.  202,  reversed.  Peck  v.  Tribune 
yond  reasonal)le  limits,  is  reversible  error  Co.,  214  U.  S.  185,  53  L.  Ed.  960,  29  S.  Ct. 
where  there  is  evidence  that  the  people  of  554. 

824 


\'ol.  MI.  LIBEL  AND  SLANDER.  859-864 

Publication  of  Likeness. — Quaere,  whether  the  unauthorized  pubHcation  of 
a  plaintitY's  hkeness  is  a  tort  per  se.^^'^ 

V.    Publication. 

Publication  of  Portrait  under  Name  of  Another  Person. — The  pubHca- 
tion of  a  woman's  portrait  in  an  advertisement  for  whisky,  in  connection  with 
a  signed  statement  purporting  to  be  made  by  her,  to  the  effect  that  she  is  a 
nurse,  and  has  used  the  whisky  for  herself  and  patients,  and  recommends  it, 
is  a  publication  of  and  concerning  her,  although  the  name  appended  to  such 
statement  is  that  of  an  entirely  different  person. -^'^ 

VIII.    Justification  and  Defenses. 

A.  Truth  as  a  Defense. — A  charge  of  using  an  ofifice  to  procure  an  indict- 
ment as  part  of  a  conspiracy  to  blackmail  can  not  be  justified  or  in  any  degree 
excused  by  the  fact  that  the  officer,  a  prosecuting  attorney,  neglected  to  investi- 
gate the  character  of  the  prosecuting  witnesses.-^"'' 

B|.  Mistake. — The  publication  of  the  portrait  of  an  entirely  dift'erent  per- 
son from  the  one  to  whom  the  annexed  libelous  article  refers  is  not  excused 
because  it  was  by  mistake,  and  without  knowledge  that  it  was  not  what  it  pur- 
ported to  be.-^^'^ 

X.    Pleading  and  Practice. 

E.  Judgment — Equitable  Relief. — Complainants  urging  newly-discovered 
evidence  as  to  the  truth  of  a  libel  as  a  ground  for  enjoining  the  enforcement  of  a 
judgment  for  damages  recovered  in  an  action  for  the  libel,  in  which  justification 
was  not  pleaded,  must  prove  that  their  failure  to  discover  such  evidence  and 
plead  it  by  way  of  defense  was  not  attributable  to  their  own  want  of  diligence, 
where  the  answer  calls  for  strict  proof  of  the  averments  of  the  bill  that  they 
made  diligent  but  unsuccessful  efforts  to  discover  such  evidence,  both  before 
and  after  the  filing  of  their  plea,^^''  and  the  enforcement  of  such  judgment  wnll 
not  be  restrained  where  the  newdy-discovered  evidence  not  only  does  not  con- 
clusively establish  the  truth  of  the  libel,  but  does  not  render  it  clear  beyond  a 
reasonable  doubt  that  such  evidence  would  produce  a  different  verdict  on  a 
retrial. ■*''''  Xor  will  such  evidence  justify  equitable  relief  on  the  theory  that 
the  failure  to  plead  justification  was  through  accident  or  mistake,  where  that 
defense    was   considered  by   the   defendants   and   their  counsel   and   deliberately 

859-12C.    Publication   of  likeness.— Peck  D.   C.  498,   affirmed.     Pickford  i\  Talbott 

f.    Tribune    Co..   214   U.    S.    18.5.    190,   .53    L.  211  U.  S.  199,  .5.3  L.  Ed.  146,  29  S.  Ct.  75. 
Ed.  960,  29   S    Ct.   554.     ,               .          ^  863-38a.    Mistake.— Peck  v.  Tribune  Co., 

860-21a  Publication  of  portrait  under  214  u.  S.  185,  53  L.  Ed.  960,  29  S.  Ct  554. 
name      of       another      person. — Judgment  ■•  \    n    1    ■     i.         r  1  •       r  rr 

(1907),    154    F.    330,    83    C.    C.    A.    202,    re-  ^,;>  J'^'^^'"    ^^'"'ft?    °"    'ts    face.      If   a 

versed.      Peck   v.   Tribune    Co.,   214   U.    S.  f",f"  ,  ?        ^  ^°  P"^'"^-    ""■^"'^^.^^i^  .^i^^-V 

185.   53   L.   Ed.   960,   29   S.   Ct.   554.  1  L.,!.    "  f "     • ''°rfi''''T"'^  .f "    individual, 

863-37a.    Truth  as  a  defense.-Pickford  ^^ '^\T  ?  -""ftification  than  exists  for 

V.   Talbott,   211   U.    S.   199,   209,   53   L.   Ed.  f/'  ^''''^'n^-'inl'       T  f  ^."''n      news,   the 

I4f    99   S    Ct    "-  usual    principles    of    tort    will    make    him 

Evidence    that"  a    prosecuting    attorney  ^^l^'Jil,  the   statements   are   false   or  are 

neglected   to   investigate   the   character   of  ^rLZf^r       offTf  <f"f«-'  ico    -FTK'a 

the  prosecuting  witness  is  inadmissible  on  I/'^r^;    A'   -\  ^Q  ^^  a?"'  ^^^'  "^p^"  Y' 

the   cross-examination   of  that   officer   un-  ??';'•  Vt  ^-  ^  "  ^^\-     %l  Morasse  v.  Brochu, 

der  a  plea  of  the  general  issue,  as  tending  ^^^    Massachusetts   .^6<,   0.0. 
to  rebut  the  allegation  in  the  declaration  864-49a.    Dihgence  to  discover  evidence. 

in    an    action    for  lil)el    in    charging    him  —Pickford  z:  Talbott,  225  U.  S.  651,  56  L. 

with  using  his  office  to  procure  an  indict-  Ed.   1240,   32   S.    Ct.   687.     See,   also,   ante, 

ment    as    part    of    a    conspiracy   to    black-  TaJL  aCFIOXS,  p.  657. 
mail,    that    he    was    upright,    honest,    just  864-49b.    Sufficiency  of  evidence. — Pick- 

and    faithful    in    the    performance    of    his  ford  z'.   Talbott,   225   U.   S.   651,   56   L.   Ed. 

official   duties.     Judgment   (1906),  28  App.  1240,  32  S.  Ct.  687. 

825 


864  LICENSES.  Vol.  VII. 

and   advisedly   rejected,    first,   because    it   could    not   be   sustained,   and   second, 
because  a  failure  to  sustain  it  would  probably  result  in  increasing  the  damages.^^c 

XI.    Criminal  Law. 

As  to  jurisdiction  of  federal  courts  to  punish  for  libel  committed  by  circulat- 
ing copies  of  newspaper  containing  libelous  articles  in  places  of  exclusive  federal 
jurisdiction,  see  ante,  Criminal  Law,  p.  434. 

LIBEL  IN  ADMIRALTY.— See  ante,  Admirai^ty,  p.  10;  post,  Ships  and 
'Shipping. 

LIBERTY. — See  ante,  Due  Process  of  Law,  p.  475. 

LIBERTY  OF  CONTRACT.— See  ante,  Due  Process  of  Law,  p.  475. 

LICENSE  (REAL  PROPERTY)  .—See  the  title  License  (Real  Property), 
vol.  7,  p.  866,  and  references  there  given. 


LICENSES. 
III.  Power  of  State  or  Municipality  to  License  and  Regulate,  826. 

G.  Classification  of  Occupations,  etc.,  826. 

H.    Particular  Persons   and   Privileges,   Business,  Occupations   and   Pro- 
fessions, 827. 

1.  Mercantile  Pursuits  and  Sale  of  Goods,  827. 

g.  Intoxicating  Liquors,  827. 

2.  Railroads,  827. 

7y2.  Wholesale  Oil  Dealers,  827. 

CROSS   REFERENCES. 

See  the  title,  Licenses,  vol.  7,  p.  870,  and  references  there  given. 

In  addition,  see  ante,  Constitutional  Law,  p.  264 ;  Due  Process  of  Law,  p. 
475;  Foreign  Corporations,  p.  584;  Interstate  and  Foreign  Commerce,  p. 
689;  Intoxicating  Liquors,  p.  803;  post,  Municipal  Corporations;  Police 
Power;  Taxation. 

As  to  a  license  tax  aflfecting  interstate  commerce,  see  ante.  Interstate  and 
Foreign  Commerce,  p.  689.  See,  also,  ante.  Intoxicating  Liquors,  p.  803.  As 
to  the  validity  of  a  license  tax  on  the  business  of  buying  and  selling  grain  and  cot- 
ton for  future  delivery,  see  ante,  Interstate  and  Foreign  Commerce,  p.  689. 
As  to  the  question  of  licensing  private  bankers,  see  ante.  Banks  and  B.^nking, 
p.  184;  Constitutional  Law,  p.  264;  Interstate  and  Foreign  Commerce,  p. 
689;  post.  Police  Power.  As  to  the  term  license  as  used  in  relation  to  patents, 
see  post,  Patents.  As  to  denial  of  the  equal  protection  of  the  law  by  the  imposi- 
tion of  a  license  or  occupation  tax,  see  ante.  Constitutional  Law,  p.  264. 

III.    Power  of  State  or  Municipality  to  License  and  Regulate. 

G.  Classification  of  Occupations,  etc. — It  is  not  questioned  that  the  state 
may  classify  occupations  for  purposes  of  taxation.  In  its  discretion  it  may  tax 
all,  or  it  may  tax  one  or  some,  taking  care  to  accord  to  all  in  the  same  class 
equality  of  rights.  The  statute,  in  respect  of  the  particular  class  of  dealers 
mentioned  in  it,  is  to  be  referred  to  the  governmental  power  of  the  state,  in  its 
discretion,  to  classify  occupations  for  purposes  of  taxation.  The  state,  keeping 
within  the  limits  of  its  own  fundamental  law,  can  adopt  any  system  of  taxation 
or  any  classification   that  it  deems   best   for  the  common  good  and  the  main- 

864-49C.  Failure  to  plead  justification.  L.  Ed.  1240,  32  S.  Ct.  687.  See.  also,  ante, 
— Pickford  t:   Talbott,   225   U.   S.   651,   56      JUDGMENTS    AND    DECREES,  p.  807. 

826 


Vol.  VII. 


LICENSES. 


878-880 


tenance  of  its  government,  provided  such  classification  be  not  in  violation  of  the 
Fourteenth  Amendment.-^^"^ 

H.  Particular  Persons  and  Privileges,  Business,  Occupations  and  Pro- 
fessions—  1.  Mercantile  Pursuits  and  Sale  of  Goods — g.  Intoxicating  Liq- 
uors.— As  to  a  license  tax  affecting  interstate  commerce,  see  ante,  Interstate 
AND  Foreign  Commerce,  p.  689.  See,  also,  ante,  Intoxicating  Liquors,  p.  803. 
As  to  whether  the  imposition  of  an  occupation  tax  upon  a  certain  class  of  liquor 
dealers  denies  the  equal  protection  of  the  law.  see  ante.  Constitutional  Law, 
p.  264. 

2.  Railroads. — As  to  the  question  of  exempting  street  railroads  from  license 
taxes,  see  ante,  Impairment  of  Obligation  of  Contracts,  p.  624;  post,  Tax- 
ation. 

7/^.  ^\'H0LESALE  OiL  DEALERS. — An  occupation  tax  may  be  imposed  upon 
wholesale  dealers  in  oils,  although  no  similar  tax  is  exacted  from  wholesale 
dealers  in  other  articles  of  merchandise. ^^^^ 


878-39a.  Not  bound  to  tax  all  pursuits 
alike. — Southwestern  Oil  Co.  z:  Texas,  217 
U.  S.  114.  54  L.  Ed.  688,  30  S.  Ct.  49(5.  See, 
generally,  ante,  CONSTITUTIONAL 
LAW,  p.  264;  post,  POLICE  POWER. 

"In  Home  Ins.  Co.  v.  New  York,  134 
U.  S.  594,  33  L.  Ed.  1025,  10  S.  Ct.  593, 
involving  the  constitutional  validity  of  a 
law  taxing  corporate  franchises  and  busi- 
ness, the  court  held  that  the  statute  was 
not  a  denial  of  the  equal  protection  of 
laws.  It  said  that  the  amendment  'does 
not  prevent  the  classification  of  propertj'- 
for  taxation,  subjecting  one  kind  of  prop- 
erty to  one  rate  of  taxation,  and  another 
kind  of  property  to  a  different  rate,  dis- 
tinguishing between  franchises,  licenses, 
and  privileges,  and  visible  and  tangible 
property,  and  between  real  and  personal 
property.  Nor  does  the  amendment  pro- 
hibit special  legislation.  Indeed,  the 
greater  part  of  all  legislation  is  special, 
either  in  the  extent  to  which  it  operates, 
or  the  objects  sought  to  be  obtained  by 
it.  And  when  such  legislation  applies  to 
artificial  bodies,  it  is  not  open  to  objec- 
tion if  all  such  bodies  are  treated  alike 
under  similar  circuinstances  and  condi- 
tions, in  respect  to  the  privileges  con- 
ferred upon  them  and  the  liabilities  to 
which  the}'  are  subjected.  Under  the 
statute  of  New  York,  all  •  corporations, 
joint  stock  companies,  and  associations  of 
the  same  kind,  are  subjected  to  the  same 
tax.  There  is  the  same  rule  applicable  to 
all  under  the  same  conditions  in  determin- 
ing the  rate  of  taxation.  There  is  no  dis- 
criinination  in  favor  of  one  against  an- 
other of  the  same  class.'  "  Southwestern 
>Oil  Co.  V.  Texas,  217  U.  S.  114,  54  L.  Ed. 


688,   30   S.   Ct.   496. 

"So,  in  Connolly  v.  Union,  etc..  Pipe 
Co.,  184  U.  S.  540,  562,  46  L.  Ed.  679,  22 
S.  Ct.  431,  'A  tax  ma3'  be  imposed  only 
upon  certain  callings  and  trades,  for  when 
the  state  exerts  its  power  to  tax,  it  is  not 
bound  to  tax  all  pursuits  or  all  property 
that  may  be  legitimately  taxed  for  gov- 
ernmental purposes.  It  would  be  an  in- 
tolerable burden  if  a  state  could  not  tax 
any  property  or  calling  unless,  at  the  same 
time,  it  taxed  all  property  or  all  callings. 
Its  discretion  in  such  matters  is  very 
great,  and  should  be  exercised  solely 
with  reference  to  the  general  welfare,  as 
involved  in  the  necessity  of  taxation  for 
the  support  of  the  state.  A  state  may, 
in  its  wisdom,  classify  property  for  pur- 
poses of  taxation,  and  the  exercise  of  its 
discretion  is  not  to  be  questioned  in  a 
court  of  the  United  States,  so  long  as  the 
classification  does  not  invade  rights 
secured  by  the  constittition  of  the  United 
States.' "  Southwestern  Oil  Co.  v.  Texas, 
217  U.   S.   114.  54  L.   Ed.   688,  30  S.  Ct.  496. 

880-53a.  Wholesale  oil  dealers. — The  im- 
position of  an  occupation  tax  on  wliolesale 
dealers  in  oils,  under  Gen.  Laws  Tex.  1905, 
c.  148,  §  9,  without  exacting  a  similar  tax 
from  wholesale  dealers  in  other  articles, 
does  not  ciflfend  against  the  due  process 
of  law  clause  of  the  federal  constitution. 
Judgment  (1907),  103  S.  W.  489,  100  Tex. 
647.  affirmed.  Southwestern  Oil  Co.  ■:■. 
Texas,  217  U.  S.  114,  54  L.  Ed.  688,  30  S. 
Ct.  496.  See,  also,  ante,  CONSTITU- 
TIONAL LAW,  p.  264:  post,  TAXA- 
TION. And  see  ante,  "Classification  of 
Occupations,   etc.,"    Ill,    G. 


827 


897-898  LIMITATION   OF  ACTIONS,  ETC.  Vol.  VIL 


LIENS. 

IX.  Determination  of  Liens,  828. 

E.  Statute  of  Limitations,  828. 

CROSS   REFERENCES. 
See  the  title  LIENS,  vol.  7,  p.  890,  and  references  there  given. 
In  addition,  see  ante.  Bankruptcy,  p.  168;  Landlord  and  Tenant,  p.  820; 
post,  Vendor's  Lien. 

IX.    Determination  of  Liens. 
E.    Statute  of  Limitations. — See  note  49. 

LIEU  LANDS.— See  post,  Public  Lands. 

LIFE. — See  note  1. 

LIFE  BOATS  AND  RAFTS.— See  post.  Ships  and  Shipping. 

LIFE  INSURANCE.— See  ante.  Insurance,  p.  674. 

LIMITATION  OF  ACTIONS  AND  ADVERSE  POSSESSION. 

III.  Nature,  Purpose  and  Construction  of  Statutes  of  Limitation,  830. 

A.  Theory  of  Statutes  of  Limitation.  830. 

B.  As  Affecting  Remedy  or  Right,  830. 

IV.  Constitutionality,  830. 

C.  As  Affecting  Vested  Rights,  830. 

D.  As  Denial  of  Due  Process  of  Law,  830. 

V.  Operation  of  Statute  and  Effect  as  Bar,  830. 

C.  Effect,  830. 

2.  As  Affecting  Lien,  830. 

3.  On  Title  to  Real  Property,  83  L 

4.  Waiver,  Repeal  or  Change  of  Law,  83  L 

VII.  Periods  of  Limitation,  83  L 

B.    Actions  for  Recovery  of  Title  or  Possession  of  Real  Property   (Ad- 
verse Possession),  831. 
2.  Ten  Years,  831. 

VIII.  Adverse  Possession,  831. 

A.  Nature  and  Requisites  of  Adverse   Possession,  831. 

5.  Continuous  Possession,  831. 

d.  Recognition  of  Title  of  True  Owner,  831. 

6.  Hostile  and  under  Claim  of  Right,  831. 

a.  In  General,  831. 

(2)   Claim  of  Exclusive  Title  or  Ownership,  831. 
c.  Color  of  Title,  832. 

897-49.     Right   to   enforce   lien   may   be  STON;  VENDOR'S  LIEN, 
lost  under  statute  of  limitations. — Diipree  898-1.     Life  termers. — See  Finley  z'   Cal- 

T'.  Mansur,  214  U.  S.  161,  53  L.  Ed.  950,  29  ifornia.  222  U.  S.  28,  50  L.  Ed.  75,  32  S    Ct 

S.  Ct.  548.     See  post,  LIMITATION  OF  13.        See      ante,      CONSTITUTIONAL 

ACTIONS    AND    ADVERSE    POSSES-  LAW,  p.  264. 

828 


Vol.  VII.  LIMITATION  OF  ACTIONS,  ETC. 

(!)   Definition   and   Essentials,    832. 
bb.  Good   Faith,   832. 

dd.  Must    Be    under    Instrument,    Proceeding    or 
Law,  832. 
fee)   Patent  or  Grant,  832. 

(2)  Office   and   Effect   of   Color   of   Title,   and   Extent   of 

Possession,  832. 
(b)   Extent  of  Adverse  Possession,  832. 

bb.  Possession   under   Color   of  Title,   832. 

(bb)   Constructive    Possession,    832. 
cc.  Conflicting   Titles   and    Possessions,   832. 
(cc)   Tide   Lands   of    City,   832. 

C.  Effect  of  Adverse  Possession,  832. 

1.  Adverse  Possession  as  Giving  Title,  832. 

b.  To  Lands,  832. 

(3)  Native  Titles   in  Philippine   Islands,  832. 

IX.  To  What  Proceedings  Applicable,  833. 

B.  In  Equity,  833. 

2.  In   Cases   Cognizable   Exclusively   in   Equity,   833. 

b.  Trusts,   833. 

(T)   Direct   or   Express   Trusts,   833. 

X.  Postponement,  Arrest  or  Suspension  of  Running  of  Statute,  833. 

D.  Suspension  by  Inability  to  Sue,  833. 

iy2.  Injunction  against   Suit  in  Force,  833. 

E.  Suspension  by  Commencement  of  Action,  833. 

6.  New  Proceedings  Taken  under  Act  Superseding  Old  Action.  833. 

XI.  Time  from  Which  Statute  Runs,  833. 

C.  Actions   for  Recovery  of  Title  or  Possession  of  Real   Property,  S33. 

2.  Public  Land   Grants  before  Patent  Issue,  833. 

a.  Where  Present  Legal  Title  Has  Passed,  833. 

b.  Where  Legal  Title  Has  Not  Passed,  833. 
5.  Rescissory  Actions,  834. 

XIV.  Evidence,   834. 

B.   Presumptions  and  Burden  of  Proof,  834. 
2.   Burden  of  Proof,  834. 

CROSS   REFERENCES. 

See  the  title  Limitation  of  Actions  and  Adverse  Possession,  vol.  7,  p.  900, 
and  references  there  given. 

In  addition,  see  ante,  Appeal  and  Error,  p.  34;  Conspiracy,  p.  256;  Crimi- 
nal Law,  p.  434. 

As  to  limitation  of  action  to  recover  usurious  interest  paid  national  bank, 
see  ante.  Banks  and  Banking,  p.  184;  post.  Venue.  As  to  special  plea  of  lim- 
itation in  bar  to  prosecution,  see  ante.  Appeal  and  Error,  p.  34;  Criminal  Law, 
p.  434.  As  to  limitation  of  prosecution  for  conspiracy,  see  ante,  Conspiracy,  p. 
256.  As  to  federal  courts  following  state  decisions  upon  state  statutes  of  limita- 
tion, see  ante.  Courts,  p.  398.  As  to  holding  suit  barred  by  limitation  not  a  fed- 
eral ground,  see  ante.  Appeal  and  Error,  p.  34.  As  to  time  for  filing  motion  for 
new  trial,  see  post.  New  Trial.  As  to  limitations  for  appeals  in  bankruptcy 
vcases,  see  ante.  Bankruptcy,  p.  168. 

829 


908-913 


LIMITATION  OF  ACTIONS.  ETC. 


Vol.  VII. 


III.  Nature,  Purpose  and  Construction  of  Statutes  of  Limitation. 

A.  Theory  of  Statutes  of  Limitation. — It  can  not  be  admitted  for  a  mo- 
ment that  for  a  debtor  to  rely  upon  the  statute  of  limitation  is  inequitable  of 
itself,  without  some  special  circumstance,  wanting  here.  That  would  be  for 
courts,  and,  in  this  case,  courts  of  a  different  power,  to  undertake  to  declare 
wrong  or  discreditable  what  the  proper  authority,  the  legislature  of  the  state,, 
had  declared  right.^^ 

B.  As  Affecting  Remedy  or  Right. — Statutes  of  limitation,  with  regard 
to  land,  at  least,  which  can  not  escape  from  the  jurisdiction,  generally  are  held 
to  affect  the  right,  even  if  in  terms  only  directed  against  the  remedy. ^^^^  Thus 
a  statute  which  in  form  only  bars  suits  to  annul  patents  granted  by  the  United 
States  must  be  taken  to  mean  the  patent  is  to  be  held  good,  and  is  to  have  the 
same  effect  against  the  United  States  that  it  would  have  had  if  it  had  been  valid 
in  the  first  place.^^^ 

IV.    Constitutionality. 

C.  As  Affecting  Vested  Rights. — See  note  28. 

D.  As  Denial  of  Due  Process  of  Law. — There  is  no  denial  of  due  process 
of  law  in  the  provisions  of  the  Kentucky  Act  of  March  15,  1906,  art.  3,  under 
which  the  forfeiture  of  land  titles  to  the  state,  as  the  result  of  proper  proceed- 
ings and  after  due  notice  to  the  owner  of  the  title,  who  is  in  default  for  pay- 
ment of  taxes,  is  to  inure  to  the  benefit  of  adverse  claimants  occupying  and 
paying  taxes  upon  the  land,  and  not  in  default.^ ^^ 

•     V.    Operation  of  Statute  and  Effect  as  Bar. 
C.  Effect — 2.  As  Affecting  Lien. — An    action    to    recover    a    debt  may  be 


908-8a.    Theory   of    statute.— Dupree    v. 

Mansur,  2]  4  U.  S.  161,  53  L.  Ed.  9.50,  2?' 
S.    Ct.   548. 

909-lla.  As  affecting  remedy  or  right. — 
United  States  v.  Chandler-Dunbar,  etc., 
Power  Co.,  209  U.  S.  447,  52  L.  Ed.  881,  28 
S.  Ct.  579,  citing  Leffingwell  v.  Warren,  2 
Black  599,  605,  17  L.  Ed.  261;  Sharon  :■. 
Tucker,  144  U.  S.  533,  36  L.  Ed.  532,  12 
S.  Ct.  720;  Davis  ?;.  Mills,  194  U.  S.  451, 
457,    48    L.    Ed.    10G7,    24    S.    Ct.    692. 

909-llb.  Patent  to  land.— United  States 
f.  Chandler-Dunbar,  etc..  Power  Co.,  209 
U.  S.  447,  52  L.  Ed.  881,  28  S.  Ct.  579. 
citing  United  States  z'.  Winona,  etc.,  R. 
Co.,  165  U.  S.  463,  476,  41  L.  Ed.  789,  17 
S.    Ct.   368. 

A  patent  from  the  United  States,  in- 
valid when  made,  after  five  years  without 
attack,  must  be  deemed  to  have  the  same 
effect  as  against  the  United  States  in  a 
suit  to  remove  a  cloud  on  title  as  though 
it  were  valid  when  issued,  in  view  of  the 
Act  of  March  3.  1891  (26  Stat,  at  L.  1099, 
chap.  561),  §  8,  although  this  section  in 
form  only  bars  suits  to  annul  the  patent. 
United  States  v.  Chandler-Dunbar,  etc.. 
Power  Co.,  209  U.  S.  447,  52  L.  Ed.  881, 
28  S.  Ct.  579.  See  post,  PUBLIC  LANDS; 
QUIETING  TITLES. 

"The  patent  had  been  issued  in  1883  by 
the  president  in  due  form  and  in  the 
regular  way.  Whether  or  not  he  had  au- 
thoiity  to  make  it  or  to  validate  it  when 
made,    since    the    interest    of    the    United 


States  was  the  only  one  concerned.  We 
can  see  no  reason  for  doubting  that  the 
statute,  which  is  the  voice  of  the  United 
States,  had  that  effect.  It  is  said  thai  Lhe 
instrument  was  void  and  hence  was  no 
patent.  But  the  statute  presupposes  an 
inslrument  that  might  be  declared  void. 
When  it  refers  to  'any  patent  heretofore 
issued,'  it  describes  the  purport  and 
source  of  the  docttment,  not  its  legal  ef- 
fect. If  the  act  were  confined  to  valid 
patents  it  would  be  almost  or  quite  with- 
out use.  Leffingwell  v..  Warren,  2  Black 
599,  17  L.  Ed.  261."  United  States  v. 
Chandler-Dunbar,  etc  ,  Power  Co.,  209  U. 
S.   447,   52    L   Ed.   881,   28    S-    Ct.   579. 

913-28.  As  affecting  vested  rights. — "Al- 
though the  time  in  which  to  commence 
action  may  be  shortened  and  made  appli- 
cable to  causes  of  action  already  accrued, 
provided  a  reasonable  time  is  left  in 
which  such  actions  may  be  commenced 
(Terry  v.  Anderson,  95  U.  S.  628,  24  L. 
Ed.  365;  Wilson  v.  Iseminger,  185  U.  S. 
.55,  46  L.  Ed.  804,  22  S.  Ct.  573),  yet  that 
is  a  different  principle  from  taking  away 
absolutely  a  present  right  to  sue  until  a 
period  of  time,  measured  possibly  by 
years,  shall  have  elapsed.''  United  States 
Fidelity,  etc.,  Co.  v.  United  States,  209  U. 
S.  306,  52  L.  Ed.  804.  28  S.  Ct.  537,  540. 

913-31a.  As  denial  of  due  process  of 
law. — Kentucky  Union  Co  v.  Common- 
wealth, 219  U.  S.  140,  55  L.  Ed.  137,  31 
S.    Ct.    171. 


830 


Vol.  VII. 


LIMITATION  OF  ACTIONS,  ETC. 


921-943 


barred  by  limitations,  yet  the  right  to  foreclose  a  lien  or  mortgage  given  as  se- 
curity may  still  exist. "^"^ 

By  the  law  of  Texas  the  security  is  incident  to  the  note  or  debt  and  does 
not  warrant  a  foreclosure  when  the  note  or  debt  does  not  warrant  a  judgment.^o** 
This  is  not  a  matter  of  procedure  or  jurisdiction,  but  of  substantive  rights  con- 
cerning land.  It  should  be  governed  by  the  decisions  of  the  state  where  the  land 
lies.6«'= 

3.  On  Title  to  Real  Property. — See  ante,  "As  Affecting  Remedv  or  Right," 
III,  B. 

4.  Waiver,  Repeal  or  Change  of  Law. — Estoppel. — See  note  63. 

VII.  Periods  of  Limitation. 

B.  Actions  for  Recovery  of  Title  or  Possession  of  Real  Property  (Ad- 
verse Possession) — 2.  Ten  Years. — The  period  of  prescription  under  the 
code  of  procedure  in  civil  actions  of  Aug.  10.  1901,  No.  190,  §  40,  1  Pub.  Laws 
of  Philippine  Commissions  378,  384,  was  ten  years.'''^^ 

VIII.  Adverse  Possession. 

A.  Nature  and  Requisites  of  Adverse  Possession — 5.  Continuous  Pos- 
session— d.  Recognition  of  Title  of  True  Owner. — The  recognition  or  acknowl- 
edgment of  a  superior  title  by  a  person  in  adverse  possession  of  land  interrupts 
the  nmning  of  the  statute  of  limitations.^^'' 

6.  Hostile  and  under  Claim  oe  Right — a.  In  General — (2)  Claim  of  Ex- 
clusive  Title   or   Oivnership. — See  note   55. 


921-60a.  Dupree  v.  :\Iansur,  214  U.  S. 
IGl,    .53    L.    Ed.    950,    29    S.    Ct.    548. 

921-60b.  Texas. — "It  is  established  law 
in  Texas  that,  when  a  debt  is  barred,  an 
action  to  foreclose  a  lien  or  mortgage 
given  as  security  for  it  is  barred  also. 
Hale  V.  Baker,  60  Tex.  217;  Goldfrank  ?'. 
Young,  64  Tex.  432,  434;  Stephens  v. 
Matthews.  69  Tex.  341,  344,  6  S.  W.  567; 
Davis  V.  Andrews.  88  Tex.  524,  30  S.  W. 
432,  32  S.  W.  513;  Brown  v.  Gates,  99  Tex. 
133,  87  S.  W.  1149."  Dupree  v.  Mansur, 
214  U.  S.  101,  53  L.  Ed.  950,  29  S.  Ct. 
548. 

921-60C.  Dupree  v.  Mansur,  214  U.  S. 
161,  53  L.  Ed.  950,  29  S.  Ct.  548,  citing 
Slide,  etc..  Gold  IMines  v.  Seymour,  153 
U.  S.  509,  516,  38  L.  Ed.  802,  14  S.  Ct. 
842. 

A  federal  court  of  equity  will  apply,  ^'n 
a  suit  to  quiet  title  as  against  the  pur- 
chaser of  notes  for  the  purchase  price  of 
which  a  vendor's  lien  has  attached,  the 
rule  of  local  law  that,  when  a  debt  is 
barred  by  the  statute  of  limitations,  an 
action  to  foreclose  a  lien  or  mortgage 
given  as  security  for  the  debt  is  also 
barred.     Dupree  v.  Mansur,  214  U.  S.  161, 

53  L.    Ed.   950,   29    S.   Ct.   548. 

921-63.  Estoppel  of  federal  government 
to  rely  on  statute  of  limitation.— See  ante, 
ESTOPPEL,  p.  5.53. _ 

Estoppel  of  municipality  to  assert  dor- 
mancy of  judgment. — See  ante,  ESTOP- 
PEL, p.  553. 

925-78a.    Reavis  v.  Fianza,  215  U.  S.  16, 

54  L.  Ed.  72,  30  S.  Ct.  1;  Tiglao  v.  Insular 


Government,  215  U.  S.  410,  54  L.  Ed.  257, 
30  S.  Ct.  129. 

942-48a.  Recognition  of  title  of  true 
owner. — An  attempt  to  acquire  title  froin 
the  United  States  under  -Act  March  3, 
1887,  c.  376,  24  Stat.  556  [U.  S.  Comp.  St. 
1901,  p.  1595],  enacted  in  behalf  of  bona 
fide  purchasers  of  land  excepted  from  the 
operation  of  a  railroad  land  grant,  with 
the  view  of  removing  a  cloud  upon  the 
title,  is  not  an  act  of  recognition  or  ac- 
knowledsrment  of  a  superior  title,  either 
in  the  United  States  or  in  the  railroad 
company,  which  can  operate  to  interrupt 
the  continuity  of  an  adverse  possession; 
and  much  less  can  it  be  held  to  have  de- 
stroj'ed  a  title  which  had  already  become 
perfect  by  the  expiration  of  the  statutory 
period  for  acquiring  legal  title  by  adverse 
possession.  Missouri  Vallev  Land  Co.  t' 
Wiese,  208  U.  S.  234,  52  L. 'Ed.  466,  28  S 
Ct.  294,  affirming  judgment  in  Wiese  v 
Union  Pac.  Ry.  Co.  (Neb.  1906\  108  N 
W.  175;  ^Missouri  Valley  Land  Co. 
Wrich.  208  U.  S.  250.  52  L.  Ed.  473,  28 
S.  Ct.  299.  affirming  judgment  in  Wrich 
V.  Union  Pac.  Ry  Co.  (Neb.  1906),  108  N. 
W.  178. 

943-55.  Mining  claim  in  Philippine 
Islands. — The  possession  and  working  of 
a  mining  claim  in  the  Philippine  Islands 
for  the  time  requisite,  under  the  Act  of 
July  1,  1902,  §  45,  in  order  to  establish  a 
right  to  patent,  need  not  have  been  under 
a  claim  of  title.  Reavis  v.  Fianza,  215  U. 
S.  16,  54  L.  Ed.  72,  30  S.  Ct.  1.  See  post, 
MINES  AND  MINERALS;  PUBLIC 
LANDS. 


831 


954-974 


LIMITATION  OP  ACTIONS,  ETC. 


Vol.  VII. 


c.  Color  of  Title — (1)  Definition  and  Essentials — bb.  Good  Faith. — See 
note  80. 

dd.  Must  Be  under  Instrument,  Proceeding  or  Law — (ee)  Patent  or  Grant. — 
See  ante,  "Good  Faith,"  VIII,  A,  6,  c,  (1),  bb. 

(2)  Office  and  Effect  of  Color  of  Title,  and  E.rtent  of  Possession — (b)  £.^-- 
tent  of  Adverse  Possession — bb.  Possession  under  Color  of  Title — (bb)  Con- 
structive Possession. — See  post,  "Tide  Lands  of  City,"  VIII,  A,  6,  c,  (2),  (b), 
cc,    (cc). 

cc.  Conflicting  Titles  and  Possessions — (cc)  Tide  Lands  of  City. — A  partial 
actual  possession  of  alleged  tide  lands  actually  belonging  to  a  city  can  not  be  ex- 
tended by  construction  to  the  boundaries  of  the  occupant's  claim,  under  the  state 
possessory  act  (St.  1852.  p.  158)."*^^ 

C.  Effect  of  Adverse  Possession — 1.  Advkrse  Possession  as  Giving  Title 
— b.    To  Lands. — See  ante,  "As  Affecting  Remedy  or  Right,"  III,  B. 

(3)  Native  Titles  in  Philippine  Islands. — Every  presumption  should  be  in- 
dulged against  the  United  States  claiming  title  to  land  in  the  province  of  Ben- 
guet  in  the  Philippine  Islands,  which,  for  more  than  fifty  years  prior  to  the 
treaty  of  peace  with  Spain  of  April  11,  1899  (30  Stat,  at  L.  1754),  has  been 
held  by  the  present  native  Igorot  holder  and  his  ancestors  under  claim  of  private 
ownership.-^^^ 


954-80.  Unauthorized  grant  in  Philip- 
pine Island. — In  Tiglao  z'.  Insular  Govern- 
ment. 215  U.  S.  410,  54  L.  Ed.  257,  30  S. 
Ct.  129,  it  was  held  that  a  wholly  unau- 
thorized .g'rant  of  puldic  land  in  the 
Philippine  Islands  by  subordinate  Spanish 
officials,  showing  its  invalidity  on  its  face, 
can  not  serve  as  the  basis  of  a  prescrip- 
tive title  under  the  Spanish  royal  decree 
of  June  25,  1880,  under  which  a  prescrip- 
tive right  can  be  founded  on  possession 
for  ten  j'ears  under  just  title  and  in  good 
faith.  He  was  chargeable  with  knowledge 
that  he  had  acquired  no  legal  rights. 

"We  assume,  for  instance,  that  if  a 
private  person  in  possession  of  Crown 
lands,  seeming  to  be  the  owner,  executed 
a  formally  valid  conveyance  under  which 
his  grantee  held,  supposing  his  title  good, 
possession  for  ten  years  might  create  a 
indisputable  right.  But  if  the  public  facts 
known  by  the  grantees  showed  that  the 
conveyance  to  him  was  void,  we  under- 
stand that  it  would  not  constitute  a  start- 
ing point  for  the  running  of  time,  and  that 
the  grantee's  actual  belief  would  not  help 
his  case.  Indeed,  in  such  a  'case  he 
would  not  be  regarded  as  holding  in  good 
faith,  within  the  requirement  of  the  de- 
cree, because  a  man  is  not  allowed  to 
take  advantage  of  his  ignorance  of  law. 
The  subject  is  fully  expounded  in  Hayes 
V.  United  States,  170  U.  S.  637,  650.  42 
L.  Ed.  1174,  18  S.  Ct.  735."  Tiglao  v.  In- 
sular Government,  215  U.  S.  410,  54  L. 
Ed.  257,  30  S.    Ct.   129. 

967-20a.  United  Land  Ass'n  v.  Abra- 
hams, 208  U.  S.  614,  52  L.  Ed.  645,  28  S. 
Ct.  569,  affirming  139  Col.  370,  69  Pac. 
1064. 

974-38a.  Native  titles  in  Philippine 
Islands. — Carino  v.  Insular  Government, 
212  U.  S.  449,  53  L.  Ed.  594,  29  S.  Ct.  334. 


A  native  title  to  land  in  the  province  of 
Benguet  in  the  Philippine  Islands,  which, 
for  more  than  fifty  years  prior  to  the 
treaty  of  peace  with  Spain  of  April  11, 
1899,  a  native  Igorot  and  his  ancestors 
have  held  in  accordance  with  Igorot  cus- 
tom, as  private  property,  should  be 
recognized  by  the  insular  government,  al- 
though no  document  of  title  has  issued 
from  the  Spanish  crown,  where,  even  if 
tried  by  the  law  of  Spain,  without  refer- 
ence to  the  efifect  of  the  change  of  sov- 
ereignty and  of  the  declaration  of  purpose 
and  safeguards  embodied  in  the  Organic 
Act  of  July  1,  1902  (32  Stat,  at  L.  691, 
chap.  1369),  it  is  not  clear  that  he  is  not 
the  owner.  Carino  v.  Insular  Govern- 
ment, 212  U.  S.  449,  53  L.  Ed.  594,  29  S. 
Ct.  334. 

An  adverse  claim  which  will  defeat  the 
right  to  a  patent  under  the  Act  of  July 
1,  1902,  §  45,  when  natives  and  their  an- 
cestors have  held  possession  and  worked 
mining  claims  in  the  Philippine  Islands 
for  the  period  required  by  that  section, 
can  not  be  based  upon  entry  and  staking 
of  claim  and  filing  notice  of  location, 
where  such  possession  was  continuous 
down  to  the  bringing  of  suit  to  restrain 
the  person  relying  upon  such  acts  as 
amounting  to  an  adverse  claim  from  set- 
ting up  title  or  interfering  with  the 
claims.  Reavis  v.  Fianza,  215  U.  S.  16,  54 
L.   Ed.   72,  30  S.   Ct.   1. 

"It  is  not  disputed  that  this  section  ap- 
plies to  possession  maintained  for  a  suffi- 
cient time  before  and  until  the  statute 
went  into  efifect.  See  Soper  v.  Lawrence 
Bros.  Co.,  201  U.  S.  359,  50  L.  Ed.  788, 
26  S.  Ct.  473.  The  period  of  prescription 
at  that  time  was  ten  years.  Code  of  Pro- 
cedure in  Civil  Actions.  August  7,  1901. 
No.  190,  §  40.     1  Pub.  Laws  of  Philippine 


832 


Vol.  VII. 


LIMITATIOX  OF  ACTIOXS,  ETC. 


984-1022 


IX.  To  What  Proceedings  Applicable. 

B.  In  Equity — 2.  Ix  Cases  Cognizable  Exclusively  ix  Equity — b.  Trusts 
—  (1)    Direct  or  Express  Trusts. — See  note  67. 

X.  Postponement,  Arrest  or  Suspension  of  Running  of  Statute. 

D.  Suspension  by  Inability  to  Sue— 1>^.  Ixjuxctiox  agaixst  Suit  in 
Force. — The  statute  does  not  run  during  the  time  an  injunction  is  in  force,  sued 
out  by  the  adverse  party  and  afterwards  dissolved.^^^ 

E.  Suspension  by  Commencement  of  Action — 6.  Xew  Proceedings 
Takex  under  Act  SupErsedixg  Old  Actiox. — A  proceeding  for  the  reassess- 
ment of  benefits  upon  lots  benefited  by  the  extension  of  Eleventh  Street,  in  the 
District  of  Columbia,  taken  under  the  Act  of  June  6,  1900,  superseding  the  Act 
of  Alarch  3,  1899,  can  not  be  regarded  as  a  new  action,  for  the  purpose  of  apply- 
ing the  statute  of  limitations,  but  must  be  deemed  a  continuance  of  the  old  pro- 
ceeding.'*^^ 

XL  Time  from  Which  Statute  Runs. 

C.  Actions  for  Recovery  of  Title   or  Possession  of  Real  Property — 

2.  Public  Laxd  Graxts  before  Patext  Issue — a.  JJ'herc  Present  Legal  Title 
Has  Passed. — See  note  10. 

b.  Uliere  Legal  Title  Has  Xot  Passed. — Against  Homesteader. — See 
riote  20. 


Commission  378,  384.  Therefore,  as  the 
United  States  had  not  had  the  sovereignty 
of  the  Philippine  Islands  for  ten  years, 
the  section,  notwithstanding  its  siini- 
larity  to  Rev.  Stat.,  §  2332,  U.  S.  Comp. 
Stat.  1901,  p.  1433,  must  be  taken  to  refer 
to  the  conditions  as  they  were  before  the 
United  States  had  come  into  power.  Es- 
pecially must  it  be  supposed  to  have  had 
in  view  the  natives  of  the  islands,  and  to 
have  intended  to  do  liberal  justice  to 
them.  By  §  16.  their  occupancy  of  public 
lands  is  respected  and  made  to  confer 
rights.  In  dealing  with  an  Igorot  of 
the  province  of  Benguet,  it  would  be 
absurd  to  expect  technical  niceties,  and 
the  courts  below  were  quite  justified  in 
their  liberal  mode  of  dealing  with  the 
evidence  of  possession  and  the  possibly 
rather  gradual  settling  of  the  precise 
boundaries  of  the  appellee's  claim.  See 
Carino  z\  Insular  Government.  212  U.  S. 
449,  .53  L.  Ed.  594.  29  S.  Ct.  334."  Reavis 
t:  Fianza,  215  U.  S.  16.  54  L.  Ed.  72,  30 
S.  Ct.  1.  See  ante.  "Claim  of  Exclusive 
Title  or  Ownership,"  VIII,  A.  6,  a,   (2). 

984-67.  A  mere  change  in  the  course  of 
studies,  contrary  to  the  condition  on 
which  a  Protestant  Mission  was  trans- 
ferred by  the  American  Board  of  Com- 
missioners for  Foreign  Missions  to  the 
Hawaiian  government,  viz.,  that  the  gov- 
ernment should  continue  the  same  as  an 
institution  for  the  cultivation  of  sound 
literature  and  solid  science,  and  should 
teach  no  religious  tenet  or  doctrine  con- 
trary to  those  theretofore  inculcated  by 
the  mission,  as  set  forth  in  a  confession 
of  faith,  the  institution,  in  case  of  breach 
of  such  condition,  to  revert  to  the  mission 
with  an  alternative,  at  the  election  of  the 

12  U  S  Enc— 53  833 


government,  to  pay  a  stipulated  sum,  does 
not  instantl}'  operate  to  make  the  grantor 
of  the  property  a  claimant  for  money 
against  whom  the  statute  of  limitations 
immediatel}'  begins  to  run.  Lowrey  z'. 
Territory  of  Hawaii.  215  U.  S.  554.  54  L. 
Ed.   325.   30   S.    Ct.  209. 

990-88a.  Beadles  r.  Smyser.  209  U.  S. 
393,    52    L.    Ed.    849,    854,    28    S.    Ct.    522. 

1010-76a.  New  proceedings  taken  under 
statute  superseding  old  action. — Columbia 
Heights  Realty  Co.  z:  Rudolph.  217  U.  S. 
547,   54   L.   Ed.   ST7,   30    S.    Ct.   581. 

1018-10.  Grant  in  aid  of  branch  railroad. 
— The  grant  of  lands  within  place  limits, 
made  by  the  Act  of  July  1,  1862.  §  14,  as 
amended  by  the  Act  of  July  2,  1864,  §  17. 
in  aid  of  a  branch  railroad,  to  be  con- 
structed on  the  same  terms  and  conditions 
as  the  main  line,  is  not  taken  out  of  the 
general  rule  that  the  grant  is  one  in 
praesenti.  and  that,  on  filing  the  map  of 
definite  location,  the  title  passes  to  the 
railway  company  so  that  it  can  be  held 
adversely,  even  as  against  such  company, 
because  the  road  which  might  build  the 
liranch  was  not,  or  may  not  have  been, 
in  existence  at  the  time  of  the  passage 
of  the  amendatory  act.  nor  because  of  its 
provision  that  said  company  shall  be  ''en- 
titled to  receive"  alternate  sections  of  the 
land  for  ten  miles  in  width  on  each  side 
of  the  way,  along  the  whole  length  of  the 
branch,  nor  because  of  the  supposed 
limited  character  of  the  forfeiture  pro- 
vided for  failure  to  complete  the  branch. 
Missouri  Vallev  Land  Co.  z\  Wiese.  208 
U.    S.  234,   52   L'.    Ed.  466,   28   S.   Ct.  294. 

1022-20.  Against  homestead  laws. — A 
state  statute  of  limitations  for  the  recov- 
ery  of   real   property   does    not   begin    to 


1023-1052  LIS  PENDENS.  Vol.  VII. 

5.  Rescissory  Actions. — The  sisters  of  a  decedent,  who,  under  Porto  Rico 
Civ.  Code,  art.  811,  are  entitled  to  any  part  of  their  brother's  estate  which  his 
widow  may  inherit  through  her  daughter,  who  was  his  sole  heir,  had  a  sufficient 
interest,  upon  the  death  of  the  daughter  intestate  and  without  descendants,  to 
enable  them  to  bring  an  action  to  set  aside  a  so-called  partition  of  their  brother's 
estate  between  the  widow  and  the  daughter,  so  as  to  start  running  the  four  years' 
limitation  prescribed  by  articles  1076  and  1301  for  rescissory  actions  and  actions 
for  nullity. ^^^ 

XIV,  Evidence. 

B.  Presumptions  and  Burden  of  Proof — 2.  Burden  of  Proof. — See 
note  7. 

LIMITATION  OF  LIABILITY.— See  ante.  Carriers,  p.  216;  post,  Ships 
AND  Shipping:  Telegraphs  and  Telephones. 

LIMITED  LIABILITY  ACT.— See  post,  Ships  and  Shipping. 
LIQUORS,f^See  ante.  Intoxicating  Liquors,  p.  803. 


LIS  PENDENS. 
I.  Doctrine  of  Lis  Pendens,  834. 

A.  Statement  of  Rule,  834. 

C.  Requisites  and  Extent,  834. 
5.  Recordation,  834. 

IV.  Property  within  the  Rule  of  Lis  Pendens,  835. 

B.  Personal   Property,   835. 

2.  Exceptions,  835. 

a.  Negotiable  Securities,  835. 

CROSS   REFERENCES. 

See  the  title  Lis  Pendens,  vol.  7,  p.  1051,  and  references  there  given. 

I.  Doctrine  of  Lis  Pendens. 

A.     Statement  of  Rule. — See  note  1. 

C.    Requisites  and  Extent — 5.    Recordation. — Failure  of  Clerk  to  Index 

Properly. — The  failure  of  the  clerk  properly  to  index  amended  declarations  in 
ejectment  covering  additional  property,  which  were  duly  filed  in  his  office,  does 
not  excuse  the  failure  of  a  searcher  to  examine  the  files,  especially  where  there 

run    in    favor    of    a    railway    company    as  less   satisfied   by   a  preponderance   of  evi- 

against    a    settler,    under    the    homestead  dence   that   they   had   "clearly"   proved   it. 

laws    of    the    United    States,    until    patent  The   slight   over-emphasis     in     the     word 

has   issued.     Judgment,    Slaght   v.   North-  "clearly,"   if   it   was    such,    is    not   a   suffi- 

ern    Pac.    Ry.    Co.    (1905),    81    P.    1062,    39  cient    ground    for    disturbing    the    verdict. 

Wash.    576,    afifirmed.      Northern    Pac.    R.  See  Ward  v.  Cochran,  150  U.  S.  597,  606, 

Co.   V.    Slaght,    205    U.    S.    122.    51    L.    Ed.  37  L.  Ed.  1195,  14  S.  Ct.  230;  Spreckels  v. 

738,  27  S.  Ct.  442;   S.   C,  205  U.  S.  134,  51  Brown,  212  U.  S.  208,  53  L.   Ed.  476,  29  S. 

L.   Ed.  742,  27   S.   Ct.  446.  Ct.    256. 

1023-23a.     Rescissory     actions. — Maytin  1052-1.    Statement  of  rule. — A  purchaser 

V.  Vela,  216  U.  S.  598,  54  L.  Ed.  632,  30  .  of  real  property  pendente  lite  stands  in 
S.    Ct.    439.  no    better    position    than    its    vendor,    the 

1047-7.     The    plaintiffs    in    error    set    up  complainant      in     such     suit.      Lewers      v. 

the   defense   of   adverse   possession.    They  Atcherly,  222  U.  S.  285,  56  L.  Ed.  202,  32 

admit  that  the  burden  was  upon  them  to  S.    Ct.   94.     See    post,     VENDOR     AND- 

prove  it,  but  assign  as  error  that  the  jury  PURCHASER, 
was   instructed    to   find    against    them   im- 

834 


Vol.  VII.  LOST  I X  ST  RUM  EXT  S  AND  RECORDS.         1052-1058 

is  no  evidence  that  such  person  was  misled  by  the  failure  of  the  clerk  to  index 
them  properly. ^^ 

IV.  Property  within  the  Rule  of  Lis  Pendens. 

B.  Personal  Property — 2.  Exceptioxs — a.  Negotiable  Securities. — See  ante. 
Bills,  Notes  and  Checks,  p.  204.  As  to  corporate  bonds,  see  post,  Municipal, 
County,  State  and  Federal  Securities. 

Purchaser  a  Corporation  Formed  in  Another  State  to  Evade  Jurisdic- 
tion of  Court  in  Pending  Suit. — The  doctrine  of  lis  pendens  applies  to  a  cor- 
poration to  which  the  defendant,  in  a  suit  brought  in  a  federal  court  sitting  in 
■another  state,  conveys  his  water  rights  within  the  state  in  an  interstate  stream, 
which  are  the  subject  of  the  litigation,  with  the  intent  to  evade  the  jurisdiction 
of  that  court. ^''^ 

LIVE  ANIMALS.— See  ante,  Animals,  p.  27. 

LIVE  STOCK.— See  ante.  Animals,  p.  27;  Carriers,  p.  216. 

LOAN  AND  DISCOUNT.— See  ante,  Banks  and  Banking,  p.  184. 

LOANS. — See  the  title  Loans,  vol.  7.  p.  1056.  and  references  there  given. 

LOAN,  TRUST  AND  SAFE  DEPOSIT  COMPANIES.— See  the  title 
Loan,  Trust  and  Safe  Deposit  Companies,  vol.  7,  p.  1057,  and  references 
there  given. 

LOCATE— LOCATION.— See  note   1. 

LOCATOR. — See  post,  ]**Iines  and  Minerals;   Public  Lands. 

LODE  MINING.— See  post.  Mines  and  Minerals. 

LOGS  AND  LOGGING.— See  the  title  Logs  and  Logging,  vol.  7,  p.  1059, 
and  references  there  given.  In  addition,  see  ante.  Appeal  and  Error,  p.  34; 
Courts,  p.  398;  post,  Navigable  Waters.  As  to  whether  or  not  construction 
of  log  boom  in  a  navigable  stream  lying  entirely  within  a  state  is  authorized  by 
a  state  statute,  not  being  a  federal  question,  see  ante,  Appeal  and  Error,  p.  34. 

LOOKOUT.— See  ante.  Collision,  p.  243. 

LOST  INSTRUMENTS  AND  RECORDS.— See  the  title  Lost  Instru- 
ments AND  Records,  vol.  7.  p.  1064,  and  references  there  given. 

1052-8a.  Failure  to  index  properly. —  vation  at  the  instant  when  the  Act  of  Feb- 
Decree  (1903),  22  App.  D.  C.  ."68,  affirmed.   .    ruary  28.  1891,  amending  the   General  Al- 

Armstrong  v.  Ashley^  204  U.  S.  272.  .51  L.  lotment     Act    of    February    8,    1887,     was 

Ed.   482,   27   S.   Ct.   270.  passed,    in  order    to  avail    himself    of    the 

1054-17a.     Conveyance     to     corporation  benefit  of  the  provision  of  the  latter  act 

formed     to      evade      jurisdiction. — (1910)  giving  to  each   Indian  located  thereon   ]4, 

Rickey  Land.  etc..  Co.  v.  Miller,  218  U.  S.  section  of  land.     The  word  located  of  it- 

258,  .54  L.  Ed.  10.32,  31  S.  Ct.  11.  affirming  self    it  has  no    reference  to    lime.     It    has 

decrees   (1907),   152   F.   11,  22,   81   C.   C.   A.  reference  entirely  to  place,  and  is  used  to 

207,  218.  designate   upon   what   Indians   the   powers 

Quaere   whether   in    such    case    the   cor-  given  by  the   act,  when   exercised,   should 

poration  would   not   be   bound   by  the   lis  operate — that  is,  "to  each  Indian  located" 

pendens  even  if  it  were  a  purchaser  with-  on  the  reservation.     The  act  was  a  part  of 

out  notice.     Compare  Whitside  v.   Hasel-  a  scheme  of  legislation  to  have  existence 

ton,  110  U.  S.  296,  28  L.   Ed.  152,  4  S.  Ct.  and  continuity  of  action  until  its  purpose 

1 ;  Rickey  Land,  etc..  Co.  v.  Miller,  218  U.  should  be  completely  fulfilled.     Fairbanks 

S.  258,  263,  54  L.  Ed.  1032,  31  S.  Ct.  11.  V.  United  States,  223   U.   S.  215.  56  L.   Ed. 

1058-1.      Located     on     reservation.— An  409,  32  S.  Ct.  292.     See  ante.  INDIANS,  p. 

Indian   need   not  have   l)cen   on   the   reser-  641;  post,  PUBLIC  LANDS. 

835 


1072 


LOIF  WATER. 


Vol.  VII. 


LOTTERIES. 

III.  Regulation  and  Prohibition,  836. 

C.  "Gift  Enterprises"  in  the  District  of  Columbia,  836. 

CROSS   REFERENCES. 

See  the  title  Lotteries,  vol.  7,  p.  1070,  and  references  there  given. 

III.  Regulation  and  Prohibition. 

C.  "Gift  Enterprises"  in  the  District  of  Columbia. — Rev.  St.  (Dist.  of 
Col.),  §§  1176,  1177,  making  it  a  criminal  offense  to  engage  in  this  District  in 
the  business  of  conducting  a  gift  enterprise,  as  defined  in  the  act  of  the  late  leg- 
islative assembly  of  this  district,  of  August  23,  1871,  is  constitutional. ^^^ 

LOW  WATER.— See  ante.  Boundaries,  p.  206;  post,  Navigable  Waters. 


1072-lla.  Constitutionality  of  statute — 
Gift  enterprise  laws. — District  of  Colum- 
bia f.  Kraft,  35  App.  D.  C.  253,  writ  of 
certiorari  denied  Kraft  v.  District  of  Co- 
luinbia,  218  U.  S.  673,  54  L.  Ed.  1205,  31 
S.  Ct.  223. 

"Gift  enterprise"  defined. — A  "gift  en- 
terprise" has  been  defined  to  be  "a 
scheme  for  the  division  of  distribution  of 
certain  articles  of  property,  to  be  de- 
termined by  chance,  amongst  those  who 
have  taken  shares  in  the  scheme." 
Bouvier's  Law  Dictionary  (Rawle's  Rev.), 
p.  884;  Black's  Law*  Dictionary,  p.  539; 
Anderson's  Law  Dictionary,  p.  488.  See, 
also.  Lohman  v.  State,  81  Indiana  15,  17; 
Winston  v.  Beeson,  135  N.  C.  271,  279; 
Randle  v.  State,  42  Texas,  580;  Matter  of 
Gregory,  219  U.  S.  210,  214,  55  L.  Ed.  184, 
31   S.   Ct.  143. 

Construction  of  statute. — The  definition 
of  a  gift  enterprise  as  the  business  of 
selling  merchandise,  coupled  with  a 
promise  to  give  any  other  article  in  con- 
sideration of  the  purchase,  which  is  made 
by  Laws  D.  C.  1871-72,  pt.  2.  pp.  96,  97, 
licensing  various  trades  and  businesses, 
was  not  imported  into  Rev.  St.  D.  C, 
§  1177,  making  it  a  crime  in  any  manner  to 
engage  in  any  gift  enterprise  business  in 
the  district,  by  the  provisions  of  §  1176, 
disapproving  and  repealing  the  earlier 
legislation  for  the  licensing  of  gift  enter- 
prises, and  declaring  it  thereafter  to  be 
unlawful  for  any  person  or  persons  to 
engage  in  said  business  in  any  luanner,  as 
defined  in  the  repealed  act  or  otherwise. 
Matter  of  Gregory,  219  U.  S.  210,  55  L. 
Ed.   184,   31   S.   Ct.   143. 

A  trading  stamp  company  which  sells 
its  stamps  to  merchants,  whose  names  it 
prints  in  its  directory  of  merchants,  for 
$3.50  for  1,000,  which  stamps  the  mer- 
chants deliver  to  their  customers,  who 
have    the    right    to    redeem,    them    of    the 


company  in  articles  of  merchandise  only 
when  presented  in  books  containing  990 
stamps,  and  also  to  ledeem  a  single 
stamp  for  a  pen,  and  ten  or  more  for  cash 
at  the  rate  of  $1  per  1,000,  violates  §§  117G, 
1177,  Rev.  St.  (Dist.  of  Col.)  making  it  a 
criminal  oflfense  to  engage  in  the  business 
of  conducting  a  gift  enterprise  as  defined 
in  the  act  of  the  late  legislative  assembly 
of  this  district  of  August  23,  1871.  District 
of  Columbia  v.  Gregory,  35  App.  D.  C. 
271,  writ  of  certiorari  denied  Gregory  v. 
District  of  Columbia.  218  U.  S.  673,  54  L. 
Ed.   1205,  31   S.   Ct.  223. 

An  enterprise  is  not  a  bona  fide  co- 
operative association,  but  is  a  gift  enter- 
prise, as  defined  by  the  act  of  the  late 
legislative  assembly  of  this  District  of 
August  23,  1871,  and  as  prohibited  by  Rev. 
St.  (Dist.  of  Col.),  §§  1176,  1177,  where  it 
consists  of  a  corporation  with  a  capital 
stock  held  exclusively  by  its  officers  and 
directors,  but  having  so-called  members, 
each  of  whom  pays  annually  a  fee  of  25 
cents  for  the  right  to  receive  trading 
stamps  on  his  purchases  from  merchants, 
the  names  of  whom  the  corporation  pub- 
lishes, under  contract,  in  its  directory  of 
merchants  w'ho  will  deliver  stamps  with 
purchases,  and  to  whom  it  sells  stamps 
for  $3.50  per  1,000  stamps,  the  stamps 
having  a  redemption  value  of  $2  per  1,000, 
thus  realizing  to  the  corporation  a  profit 
of  $1.50  per  1,000,  no  part  of  which  profit 
is  received  by  the  members,  who,  how- 
ever, receive  back  each  year  the  member- 
ship fees,  less  the  cost  of  ol)taining  new 
members,  and  have  the  privilege  of  re- 
deeming their  stamps  at  the  offices  of  the 
corporation  in  cash  or  goods  at  the  rate 
of  $2  per  1,000,  in  any  quantity  not  less 
than  five.  District  of  Columbia  v.  Kraft, 
35  App.  D.  C.  253.  writ  of  certiorari  de- 
nied Kraft  z'.  District  of  Columbia,  218 
U.  S.  673,  54  L.  Ed.  1205.  31   S.  Ct.  223. 


836 


Vol.  VII  MALICIOUS  PROSECUTION.  1076-1084 

MACHINE.— See  note  5. 

MAGISTRATE. — The  word  magistrate  is  not  confined  to  justices  of  the 
peace,  and  other  persons,  ejusdem  generis,  who  exercise  general  judicial  pow- 
ers, but  includes  others  whose  duties  are  strictly  executive.*^ 

MAIL. — See  post,  Postai,  Laws. 

MALICE. — See  ante.  Criminal  Law,  p.  434;  Homicide,  p.  619. 

MALICIOUS  MISCHIEF.— See  the  title  ^Iaucious  .Mischief,  vol.  7,  p. 
1079,  and  references  there  given. 


MALICIOUS  PROSECUTION. 

III.  Pleading  and  Practice,  ^Z7. 

C.  Province  of  Court  and  Jury,  837. 
1.  Probable   Cause,  ?:2)7. 

IV.  Evidence,  837. 

A.  Burden  of  Proof,  837. 

B.  Proof  of  Malice  and  Want  of  Probable  Cause,  837. 

3.  Sufficiency  of   Evidence,  837. 

CROSS   REFERENCES. 
See  the  title  Malicious    Prosecution,    vol.    7,    p.  1080,  and  references  there 
given. 

III.  Pleading  and  Practice. 
C.  Province  of  Court  and  Jury — 1.  Probable  Cause. — See  note  25. 

IV.  Evidence. 

A.  Burden  of  Proof. — The  burden  of  proving  malice  and  want  of  probable 
cause  rests  upon  the  plaintiff  in  an  action  for  malicious  prosecution. ^s^ 

B.  Proof  of  Malice  and  Want  of  Probable  Cause — 3.   Sufficiexcy  of  Evi- 
dence.— A  prima  facie  showing  of  want  of  probable  cause  for  swearing  out  a 

1076-5.    Machine. — Expanded    Metal    Co.       a   magistrate   within    the    statute    referred 

V.  Bradford.  214  U.  S.  366,  384.  53  L.   Ed.       to;  'for,' said  he, 'I  know  of  no  other  defini- 
1034.  29  S.  Ct.  652.     See  post,  PATENTS.       tion  of  the  term  magistrate  than  that  he 

1077-a.  Magistrate. — 'Tn  a  general  sense  is  a  person  clothed  with  power  as  a  pub- 

a  magistrate  is  a  pubHc  civil  officer,  pos-  lie  civil  officer.'    Citing  1  Black.  Com.  146." 

sessing  such  power,  legislative,  executive  Compton  v.  Alabama,  214  U.  S.  1,  7,  53  L. 

or  judicial,  as  the  government  appointing  Ed.  885,  29  S.  Ct.  605. 

him   may   ordain.      In   a   narrow   sense,    a  Notary  public  as  a  magistrate. — An  af- 

magistrate     is     regarded — perhaps,     com-  fidavit  made   before  a   notary  public  who, 

monly    regarded — as    an    inferior    judicial  imder   Ga.    Code   1895,   vol.   2,   p.   982;    Id., 

officer,   such   as  a  justice   of  the  peace.     2  vol.  3,  p.  93,  is  ex  officio  a  justice  of  the 

Bouvier  Law  Die.  92.     But  the  appellation  peace,    satisfied    the    requirement    of    the 

of  magistrate  'is  not  confined  to  justices  provisions    of    United    States    Rev.    Stats., 

of  the  peace,  and  other  persons,   ejusdem  §    5270,    governing    interstate    extradition, 

generis,    who    exercised    general    judicial  if  such  affidavit  be  made  before  a  magis- 

powers;     but    it    includes     others    whose  trate.     Compton  v.  Alabama,  214  U.   S    1, 

duties  are  strictly  executive.'     Anderson's  53  L.  Ed.  885,  29  S.  Ct.  605. 

Dictionary  of  Law,  643,  644.     In  Gordon  1083-25.    In  clear  cases  the  question  of 

V.  Hobart,  2  Sumner  401,  405,  the  question  want  of  probable   cause   for   instituting  a 

was  whether  an  alderman  of  Philadelphia,  criminal  prosecution  is  one  of  law  for  the 

who    was    invested    by    law    with    all    the  court.     Brown  v.  Selfridge,  224  U.   S.  189, 

powers   and   authority   of  a  justice   of  the  56  L.   Ed.  727,   32   S.   Ct.  444. 

peace,  was  not  to  be  deemed  in  the  strict-  1084-38a.    Burden  of  proving  malice  and 

est  sense  a  magistrate,  within   the  mean-  want   of  probable   cause. — Brown  z'.   Self- 

ing  of  a  statute   relating  to   the   acknowl-  ridge,  224  U.   S.  189,  56   L.   Ed.  727,   32   S. 

edgment  of  deeds  'before  a  justice  of  the  Ct.    444.      See,     also,     post,      PRESUMP- 

peace    or   magistrate.'     Mr.   Justice    SLory  TIOXS  AXD  BURDEN  OF  PROOF, 
said  that  the  alderman  was  to  be  deemed 

837 


1085  MANDAMUS.  Vol.  VII I. 

search  warrant  charging  that  certain  property  stolen  by  persons  unknown  was 
concealed  upon  defendant's  premises  is  not  made  by  evidence  as  to  the  prosecu- 
tion and  the  circumstances  under  which  the  unsuccessful  search  was  made  and 
the  dismissal  of  the  proceedings,  together  with  testimony  tending  to  show  de- 
fendant's good  reputation  for  honesty  and  integrity,  and  the  injury  to  her  health 
and  occupation. ■^s^ 

MANDAMUS. 

II.  Nature,  839. 

C.  Extraordinary  Remedy,  839. 
F.  AA'rit  of  Right,  839. 

VII.  Jurisdiction,   839. 

F.  Of  United  States  Courts,  839. 

5.  Of  Supreme  Court,  839. 

6.  Of  Circuit   Court  of  Appeals,  840. 

VIII.  Grounds  for  Mandamus,  840. 

D.  As  Dependent  upon  Nature  of  Rights  to  Be  Enforced,  840. 

1.  In  General,  840. 

2.  Doubtful  Rights,  840. 

E.  As  Dependent  upon  Nature  of  Duty  to  Be  Enforced,  840. 

7.  Ministerial  Duties,  840. 

a.  General  Rule,  840. 

c.  What   Are   Ministerial   Duties,   840. 

8.  Discretional  Duties,  840. 

a.  To   Control   Discretion,   840. 

c.  What  Are  Discretional  Duties,  840. 

(1)  In   General,   840. 

G.  As   Dependent  upon  Existence  of   Other  Remedy,  840. 

1.  General  Rule,  840. 

3.  What  Remedies  Sufficient,  841. 

d.  Appeal  or  Error,  841. 
K.  Mandamus  to  Courts,  841.  ' 

5.  Matters  of  Pleading  and  Practice,  841.     . 

e.  Dismissal  and  Nonsuit,  841. 

(2)  For  Want  of  Jurisdiction,  841. 
k.  Judgment,  841. 

(5)  A'acating,  841. 

(a)  In  General,  841. 
o.  Review,  841. 

(1)  Proceedings  in  Lower  Court,  841. 

6.  In   Particular   Proceedings,   841. 

j.  Removal  of   Causes,   841. 

(2)  To  Federal  Court,  841. 

(b)  To    Remand   Cause,   841. 
aa.  In   General,   841. 

L.  Executive  and  Ministerial  Officers  of  Government,  843. 
6.  Officers   of   United    States,   843. 
c.  Heads   of   Departments,   843. 

(3)  Secretary   of   Treasury,   843. 

1085-48a.     Evidence    not    making    out    a       cause. — Brown  v.  Selfridge,  224  U.  S.  189, 
prima  facie  showing  of  want  of  probable       56  L-  Ed.  727,  32  S.  Ct.  444. 

838 


Vol.  MIL  MAX  DAM  US.  11-16 

(7)    Secretary   of    Interior,   8-t3. 
(a)   In  General,  843. 

d.  Subordinate  Officers,  843. 

(4)   Land    Officers,    843. 
(a)   In  General,  843. 
(c)   Delivery  of  Patent,  844. 
]\L  Mandamus   to    Public    Corporations.   844. 

3.  Enforcement   of    Alunicipal    Obligations,    844. 

b.  Contracts,  844. 

(4)    Satisfied  by   Levy,   844. 

4.  Levy  and  Collection  of  Taxes,  844. 

r.  Excessive  Levies,  844. 
X.  Mandamus  to   Private  Corporations.  844. 
4.  To  Railroads.  844. 

h.  To  Furnish  Cars,  844. 

IX.  Procedure,  844. 

D.  Prerequisites,  844. 

L  Demand.  844. 

3.  Exhausting  Other  Remedies.  845. 

E.  Time  of  Instituting  Proceedings.  845. 

2.  Limitations    or   Laches,   845. 

F.  Parties,  845. 

2.  Respondents.  845. 

e.  Public  Corporations.  845. 
J.  Alternative  \\'rit.  845. 

10.  'Hearing  and  Determination.  845. 
d.  Extent  of   Inquiry.   845. 

(3)   To   Matters  Determined  by  Judgment.  845. 

CROSS   REFERENCES. 
See  the  title  AIaxdamus,  vol.  8,  p.  1,  and  references  there  given. 
In  addition,  see  ante.  Appeal  and  Error,  p.  34:  Exceptioxs,  Bill  of,  and 
Statement  of  Facts  on  Appeal,  p.  559;   Interstate  and  Foreign  Commerce, 
p.  689. 

II.  Nature. 

C.    Extraordinary  Remedy. — See  note  9. 
F.    Writ  of  Right.— See  note  22. 

VII.  Jurisdiction. 

F.    Of  United  States  Courts — 5.   Of  Supreme  Court. — See  note  54. 

11-9.   Extraordinary  remedy. — '"The  writ  16-54.     Of    supreme    court. — "Authority 

of   mandamus   was   introduced   to    supple-  to  issue  writs  of  mandamus  to  any  courts 

ment    the    existing     jurisdiction      of      the  appointed    under    the     authority      of      the 

courts  and  to  afford  relief  in  extraordinary  United   States  was  given  to  this  court  by 

cases   where    the  law  presents  no   adequate  a  provision  in  the  original  judiciary  act, 

remedy."     In  re  Winn,  213  U.  S.  458,  466,  which    now   appears   in   §   688    of   the    Re- 

53  L.  Ed.  873,  29  S.  Ct.  515.  vised   Statutes.     A  writ   of  mandamus   is- 

12-22.  Writ  of  right. — Mandamus  is  not  sued  under  this  provision  is  for  the  pur- 
a  writ  of  right.  It  issues  to  remedy  a  pose  of  revising  and  correcting  proceed- 
wrong,  not  to  promote  one.  and  will  not  ings  in  a  case  already  instituted  in  the 
be  granted  in  aid  of  those  who  do  not  courts,  and  is  deemed  a  part  of  the  ap- 
come  into  court  with  clean  hands.  Turner  pellate  jurisdiction  of  this  court,  which  is 
V.  Fisher,  222  U.  S.  204.  56  L.  Ed.  165,  32  subject  to  such  regulations  as  the  con- 
S.  Ct.  37.  (Advance  Sheet)  37.  affirming  gress  shall  make."  In  re  Winn,  213  XT.  S. 
judgment  C1909),  Same  z'.  Garfield,  33  458.  465,  53  L.  Ed.  873.  29  S.  Ct.  515.  See, 
App.  D.  C.  195.  also,  ante.  COURTS,  p.  398. 

839 


18-33 


MANDAMUS. 


Vol.  VIIL 


6.   Of  Circuit  Court  of  x-\fpeals. — See  note  72. 

VIII.  Grounds  for  Mandamus. 

D.  As  Dependent  upon  Nature  of  Rights  to  Be  Enforced — 1.  In  Gen- 
Fral. — See  note   16. 

2.    Doubtful  Rights. — See  note  17. 

E.  As  Dependent  upon  Nature  of  Duty  to  Be  Enforced — 7.  Ministerial, 
Duties — a.    General  Rule. — See  note  i7 . 

c.  What  Are  Ministerial  Duties. — See  post,  "Secretary  of  Treasury,"  VIII, 
L,  6,  c,  (3). 

8.  Discretional  Duties — a.  To  Control  Discretion. — See  note  40. 

c.    What  Are  Discretional  Deities — (1)    In  General.— See  note  42. 

G.  As  Dependent  upon  Existence  of  Other  Remedy— 1.  General  Rule. 
— See  notes  49,  50. 


18-72.  Circuit  courts  of  appeals. — A  cir- 
cuit court  of  appeals  to  which  is  ad- 
dressed the  mandate  of  the  supreme  court 
directing  the  remanding  of  the  cause  to 
the  district  court  for  further  proceedings 
in  conformity  with  the  opinion  upon  which 
the  mandate  was  based  has  no  jurisdic- 
tion to  compel  the  district  court,  by  man- 
damus, to  modify  the  decree  entered  in 
supposed  compliance  with  such  mandate, 
to  conform  to  the  view  of  the  supreme 
court's  opinion  entertained  by  the  cir- 
cuit court  of  appeals.  Judgment,  Ex  parte 
Chicago  Title  &  Trust  Co.  (1906),  146 
F.  742,  77  C.  C.  A.  408,  reversed.  Ex  parte 
First  Nat.  Bank,  207  U.  S.  61,  52  L.  Ed. 
103.  28  S.  Ct.  23. 

26-16.  Grounds  for  mandamus. — Proof 
that  the  enrollment  of  certain  persons  as 
Creek  freedmen  was  procured  by  fraud 
defeats  the  right  to  compel  the  secretary 
of  the  interior  by  mandamus  to  restore 
their  names  to  the  rolls,  even  though 
such  names  have  been  arbitrarily  stricken 
therefrom  without  the  notice  and  oppor- 
tunity for  hearing  essential  to  due  process 
of  law.  Turner  v.  Fisher,  222  U.  S.  204, 
56  L.  Ed.  165,  32  S.  Ct.  37,  affirming  judg- 
ment (1909),  Same  v.  Garfield,  33  App.  D. 
C.   195. 

Mandamus  to  compel  the  secretary  of 
the  interior  to  restore  to  the  freedmen 
rolls  of  the  Creek  Nation  the  names  of 
those  who  had  been  arbitrarily  stricken 
therefrom  without  due  process  of  law  was 
properly  refused  where  a  general  demur- 
rer to  the  answer,  setting  up  that  the 
original  enrollment  was  procured  by 
fraud,  was  overruled,  and  the  relator, 
instead  of  replying,  elected  to  stand  on 
their  demurrer.  Turner  z'.  Fisher,  222  U. 
S.  204,  56  L.  Ed.  165,  32  S.  Ct.  37,  affirm- 
ing judgment  (1909),  Same  z'.  Garfield, 
33   App.    D.   C.    195. 

26-17.  Doubtful  rights. — Any  uncer- 
tainty or  indefiniteness  in  an  act  of  con- 
gress purporting  to  validate  bonds  issued 
by  Santa  Fe  county,  N.  M.,  can  not  be 
urged  to  defeat  mandamus  to  compel  the 
levy  of  a  tax  to  pay  judgments  upon  such 


bonds,  since  whatever  defense  could  have 
been  set  up  to  prevent  the  rendition  of 
such  judgments  is  not  afterwards  avail- 
able to  prevent  their  enforcement.  Judg- 
ment, Territory  v.  Board  of  Com'rs  of 
Santa  Fe  County  (N.  M.  1907),  89  P. 
252,  affirmed.  Commissioners  v.  Coler, 
215  U.   S.  296,  54  L.   Ed.  202,  30  S.  Ct.  111. 

30-37.  Ministerial  duties. — Ballinger  v. 
Frost,  216  U.  S.  240,  54  L.  Ed.  464,  30  S. 
Ct.  338. 

31-40.  To  control  discretion. — "Man- 
damus will  not  lie  to  control  the  judg- 
ment or  judicial  discretion  of  the  court  to 
which  the  writ  is  proposed  to  be  di- 
rected. This  is  true  where  the  judgment 
or  judicial  discretion  is  within  the  limits 
of  jurisdiction,  but  not  otherwise."  In 
re  Winn,  213  U.  S.  458,  467,  53  L.  Ed.  873, 
29  S.  Ct.  515. 

32-42.  What  are  discretional  duties. — 
An  adjudication  of  bankruptcy  against  a 
tunnel  company  on  a  petition  alleging  that 
such  company  was  "engaged  in  the  busi- 
ness of  building  and  contracting"'  calls  for 
a  decision  of  a  question  of  fact,  or  of 
mixed  law  and  fact,  as  to  whether  the 
principal  business  of  such  company  was 
that  of  manufacturing,  and  contracting  for 
such  manufacturing,  so  as  to  be  within 
the  purview  of  Bankr.  Act  July  1,  1898, 
c.  541,  §  4b,  30  Stat.  547  (U.  S.  Comp.  St. 
1901,  p.  3423),  as  amended  by  Act  Feb. 
5,  1903,  c.  487.  §  3.  32  Stat.  797  (U.  S. 
Comp.  St.  Supp.  1907,  p.  1025),  which  de- 
cision can  not  be  reviewed  by  mandamus. 
In  re  Riggs,  214  U.  S.  9,  53  L.  Ed.  887,  29 
S.   Ct.  598. 

"We  rest  our  conclusion  upon  the 
proposition  that  the  district  court  in  ad- 
judicating the  tunnel  company  a  bank- 
rupt was  called  upon  to  decide,  and  did 
decide,  a  question  of  fact  or  of  mixed  law 
and  fact,  and  that  such  adjudication  can 
not  be  reviewed  by  proceedings  in  man- 
damus. In  re  Pollitz,  206  U.  S.  323,  331, 
51  L.  Ed.  1081;  In  re  Winn,  213  U.  S.  458, 
53  L.  Ed.  873,  29  S.  Ct.  515."  In  re  Riggs, 
214  U.  S.  9,  14,  53  L.  Ed.  887,  29  S.  Ct.  598. 

33-49.    As  dependent  upon  existence  of 


840 


Vol.  VIII. 


MANDAMUS. 


33-54 


3.   What  Remedies  Sufficient — d.   Appeal  or  Error. — See  note  59. 

K.  Mandamus  to  Courts — 5.  Matters  of  Pleading  and  Practice — e. 
DisDiissal  and  Xoiisuit — (2)    For  IVaiit  of  Jurisdiction. — See  note  6. 

k.  Judgment — (5)  J^acating — (a)  In  General. — Mandamus  is  the  proper 
remedy  where  a  federal  circuit  court  has  exceeded  its  power  by  vacating  a  judg- 
ment after  the  term.^"'' 

o.  Revieiv — (1)  Proceedings  in  Lower  Court. — See  ante,  Appeal  and  Error, 
p.  34. 

6.  In  Particular  Proceedings — j.  Removal  of  Causes — (2)  To  Federal 
Court — (b)   To  Remand  Cause — aa.  In  General. — See  note  10. 


other  remedy. — Ex  parte  Harding,  219  U. 
S.  363,  55  L.  Ed.  252,  31  S.  Ct.  324;  Ex 
parte  Nebraska,  209  U.  S.  436,  52  L.  Ed. 
876,  28  S.  Ct.  581;  Ex  parte  Oklahoma, 
220  U.  S.  191,  55  L.  Ed.  431,  31  S.  Ct.  426. 

33-50.  Remedy  by  appeal  or  writ  of  er- 
ror.— r^Iandamus  is  tlie  proper  remedy 
where  a  single  federal  judge,  in  violation 
of  Act  June  18,  1910,  c.  309,  §  17,  36  Stat. 
557,  vacates  a  temporary  restraining  or- 
der suspending  on  constitutional  grounds 
the  enforcement  of  a  state  statute  by  re- 
straining the  action  of  a  state  officer  there- 
under, and  denies  an  application  for  an 
interlocutory  injunction,  since  this  sec- 
tion makes  no  provision  for  any  appeal 
from  an  order  of  this  character  made  by 
a  single  judge,  and  a  right  of  appeal  is 
not  otherwise  given  by  statute.  Ex  parte 
Metropolitan  Water  Co..  220  U.  S.  539,  55 
L.    Ed.   575,  31    S.   Ct.  600. 

34-59.  What  remedies  sufficient. — It  has 
frequently  been  held  that  mandamus  from 
the  federal  supreme  court  would  lie 
to  compel  a  circuit  court  to  remand  a  case 
to  the  state  court  where  it  is  apparent 
from  the  record  that  the  circuit  court 
has  no  jurisdiction  whatever  of  the  case. 
In  such  a  situation  the  remedy  by  man- 
damus is  available,  although  the  ag- 
grieved party  may  also  be  entitled  to  a 
writ  of  error  or  an  appeal.  Mandainus,  it 
is  true,  never  lies  where  the  party  pray- 
ing for  it  has  another  adequate  remedy. 
In  re  Winn,  213  U.  S.  458,  466,  53  L.  Ed. 
873.    29    S.    Ct.    515. 

41-6.  Dismissal  or  nonsuit,  and  rein- 
statement.— Mandamus  will  not  issue  to 
compel  a  federal  judge  to  dismiss,  for 
lack  of  jurisdiction,  a  suit  which  he  cer- 
tifies that  he  is  satisfied  involves  a  con- 
troversy within  the  jurisdiction  of  the 
court,  brought  by  a  nonresident  trans- 
feree of  shares  in  an  insolvent  corpora- 
tion, for  the  benefit  of  all  the  shareholders, 
to  have  a  receiver  appointed  and  the  com- 
pany wound  up.  although  the  transfer, 
while  absolute,  was  made  when  the  cor- 
poration was  insolvent,  and  for  the  pur- 
pose of  bringing  the  suit.  In  re  Cleland, 
218  U.  S.  120,  54  L.  Ed.  962,  30  S.  Ct.  647. 

44-37a.  Vacating. — In  re  Metropolitan 
Trust  Co.,  218  U.  S.  312,  54  L.  Ed.  1051, 
31    S.   Ct.  18. 

54-10.    Removal    of     causes. — A      court 


which  has  general  jurisdiction  over  the 
subject  matter  and  the  parties  to  a  cause 
is  competent  to  decide  questions  arising 
as  to  its  jurisdiction,  and  therefore  that 
such  decisions  are  not  open  to  collateral 
attack  by  mandamus.  There  is  no  sub- 
stantial foundation  for  the  contention  that 
this  elementary  doctrine  has  no  applica- 
tion to  decisions  of  courts  of  the  United 
States  refusing  to  remand  causes  to  state 
courts,  since  there  is  nothing  peculiar  in 
an  order  refusing  to  remand  which  dif- 
ferentiates it  from  any  other  order  or 
judgment  of  a  court  of  the  United  States 
concerning  its  jurisdiction.  Ex  parte 
Harding,  219  U.  S.  363,  369,  55  L.  Ed.  252, 
31  S.  Ct.  324. 

The  refusal  of  a  federal  circuit  court  to 
remand  a  civil  cause  to  the  state  court 
whence  it  had  been  removed  as  present- 
ing a  separable  controversy  between  citi- 
zens of  different  states  can  not  be  re- 
viewed by  mandamus,  which  may  not  be 
used  to  perform  the  office  of  an  appeal 
or  writ  of  error.  Ex  parte  Harding,  219 
U.    S.   363.   55   L.    Ed.   252,   31    S.    Ct.   324. 

Conflicting  decisions,  —  "Comprehen- 
sively considering  the  two  lines  of  cases, 
one  beginning  with  Ex  parte  Hoard.  105 
U.  S.  578,  26  L.  Ed.  1176.  and  ending  with 
Ex  parte  Gruetter,  217  U.  S.  586,  54  L.  Ed. 
892,  30  S.  Ct.  690,  and  the  other  begin- 
ning with  Virginia  v.  Rives,  100  U.  S.  313, 
25  L.  Ed.  667,  and  ending  with  In  re 
Winn,  213  U.  S.  458,  53  L.  Ed.  873,  29  S. 
Ct.  515,  it  is  to  be  conceded  that  they  are 
apparently  in  conflict,  both  as  to  the  as- 
sertion of  power  which  one  line  upholds 
to  view  by  mandamus  the  action  of  the 
United  States  circuit  court  in  refusing  to 
remand  and  the  nonexistence  of  stich 
power  which  the  other  line  of  cases  ex- 
pounds, and  also  as  to  much  of  the  rea- 
soning in  the  opinions  in  some  of  the 
cases."  Ex  parte  Harding,  219  U.  S.  363, 
376.    55    E.    Ed.    252,   31    S.    Ct.   324. 

Under  these  circumstances  it  becomes 
our  plain  duty,  while  not  questioning  the 
general  doctrine  announced  in  any  of  the 
cases,  yet  to  disapprove  and  qualify  Ex 
parte  Wisner,  203  U.  S.  449,  51  L.  Ed.  264; 
In  re  Moore,  209  U.  S.  490,  52  L.  Ed.  904, 
28  S.  Ct.  585,  706,  and  In  re  Winn,  213  U. 
S.  458,  53  L.  Ed.  873,  29  S.  Ct.  515,  to  the 
extent  that  those  cases  applied  the  excep- 


841 


54 


MANDAMUS. 


A'ol.  VIII. 


tional  rule  of  Virginia  v.  Rives,  100  U.  S. 
313,  25  L.  Ed.  667,  and  thereby  obscured 
the  broad  distinction  between  the  gen- 
eral doctrine  announced  in  Ex  parte 
Hoard,  105  U.  S.  578,  26  L.  Ed.  1176,  and 
the  cases  which  have  followed  it  and  the 
exception  established  bv  Virginia  i'. 
Rives,  100  U.  S.  313,  25  L  Ed.  667,  and 
the  cases  which  have  properly  applied  the 
doctrine  of  that  case.  Ex  parte  Harding, 
'219  U.  S.  363,  379,  55  L.  Ed.  252,  31  S.  Ct. 
324. 

"Where  the  removability  of  a  case 
turned  upon  the  question  whether  there 
was  a  separable  controversy,  to  the  trial 
of  which  certain  of  the  defendants  were 
not  indispensable  or  necessary  parties,  it 
was  held  that  the  circuit  court  had  juris- 
diction to  determine  the  question  of  separa- 
bility; that  its  decision  in  that  respect 
was  the  exercise  of  judicial  discretion  and 
could  not  be  controlled  by  a  writ  of  man- 
damus. In  re  PoUitz,  206  U.  S.  323,  51 
L.  Ed.  1081.  The  same  point  was  decided 
in  Ex  parte  Nebraska,  209  U.  S.  436,  52 
L.  Ed.  876,  28  S.  Ct.  581.  In  each  of  these 
cases  a  distinction  was  made  between  it 
and  a  case  where  on  the  face  of  the 
record  absolutely  no  jurisdiction  has  at- 
tached, and  the  right  to  a  writ  of  man- 
damus in  the  latter  case  was  affirmed." 
In  re  Winn.  213  U.  S.  458,  468,  53  L.  Ed. 
873,    29    S.    Ct.    515. 

Virginia  v.  Rives. — It  is  obvious  from 
the  opinion  of  the  court  and  the  concur- 
ring opinion  in  Virginia  z'.  Rives.  100  U. 
S.  313,  25  L.  Ed.  667,  that  jurisdiction  over 
the  cause  was  taken  because  of  the  ex- 
traordinary abuse  of  discretion  disclosed 
bj^  the  power  attempted  to  be  exerted, 
the  confusion  and  disregard  of  constitu- 
tional limitations  which  the  asserted 
power  implied,  and  because  under  the  law 
as  it  then  stood  no  power  would  other- 
wise have  existed  to  correct  the  wrongful 
assumption  of  jurisdiction  by  the  circuit 
court.  Ex  parte  Harding,  219  U.  S.  363, 
373.    55    L.    Ed.    252.    31    S.    Ct.    324. 

In  re  Moore,  209  U.  S.  490.  52  L.  Ed. 
904.  28  S.  Ct.  585.  706,  was  also  a  case  of 
removal,  where  there  was  diversity  of  citi- 
zenship biit  neither  of  the  parties  resided 
in  the  particular  district.  The  circuit 
court  had  refused  to  remand.  Taking  ju- 
risdiction to  review  such  action,  on  ap- 
plication for  a  writ  of  mandamus,  the 
federal  supreme  court  held  that  as  there 
was  diversity  of  citizenship  there  was 
general  jurisdiction  in  the  circuit  court, 
and  that  the  objection  that  neither  party 
resided  within  the  district  was  a  matter 
susceptible  of  being  waived  by  the  par- 
ties and  that  such  waiver  had  taken  place. 
The  observations  in  Ex  parte  Wisner,  203 
U.  S.  449.  51  L.  Ed.  264,  to  the  contrary 
were  expressly  disapproved.  The  action 
of  the  circuit  court  in  refusing  to  remand 
was  consequently  approved.  No  discus- 
sion   was    had    or    authority    referred    to 


upon  the  question  of  the  right  to  review 
by  mandamus  the  action  of  the  circuit 
court,  the  right  to  exert  such  authority 
having  in  efifect  been  assumed  as  the  re- 
sult of  the  decision  in  the  Wisner  case. 
Ex  parte  Harding,  219  U.  S.  363,  375,  55 
L.    Ed.    252,    31    S.    Ct.    324. 

In  In  re  Winn,  213  U.  S.  458,  53  L.  Ed. 
873,  29  S.  Ct.  515,  an  action  commenced  in 
a  state  court  had  been  removed  into  a 
circuit  court  of  the  United  States,  not 
upon  diversity  of  citizenship,  but  upon  the 
ground  that  the  case  stated  v.'as  one  aris- 
ing under  the  laws  of  the  United  States. 
The  circuit  court  denied  a  motion  to  re- 
mand. Upon  application  for  mandamus 
this  court  took  jurisdiction  to  review  such 
action  and  directed  that  the  case  be  re- 
manded, upon  the  ground  that  the  cause 
of  action  when  rightly  construed  did  not 
arise  under  any  provision  of  the  constitu- 
tion or  under  any  law  of  the  United 
States.  Referring  to  some  of  the  previous 
cases,  and  manifestly  noting  an  apparent 
conflict  between  them,  it  was  said  that 
this  court  had  declmed  to  exert  jurisdic- 
tion by  mandamus  in  Ex  parte  Nebraska, 
209  U.  S.  436,  52  L.  Ed.  876,  28  S.  Ct.  581, 
and  In  re  PoUitz,  206  U.  S.  323,  51  L.  Ed. 
1081,  because  those  cases  but  exemplified 
the  exercise  of  judicial  discretion  by  the 
circuit  court  as  to  a  matter  within  its  ju- 
risdiction, while  the  case  in  hand  pre- 
sented a  question  of  a  want  of  jurisdiction 
in  the  circuit  court,  clearly  apparent  on 
the  face  of  the  record,  and  therefore  that 
court  when  it  decided  that  the  cause  of 
action  alleged  arose  under  a  law  of  the 
United  States,  could  not  possibly  have  ex- 
ercised a  discretion  to  decide  a  matter 
which  was  within  its  jurisdiction.  Vir- 
ginia z:  Rives,  100  U.  S.  313,  25  L.  Ed.  667 
and  Virginia  v.  Paul,  148  U.  S.  107,  37  L. 
Ed.  386,  were  approvingly  cited.  Ex  parte 
Harding,  219  U.  S.  363,  375,  55  L.  Ed.  252, 
31  S.  Ct.  324. 

Mandamus  will  lie  to  compel  a  federal 
circuit  court  to  remand  a  cause  to  the 
state  court  whence  it  was  removed,  where 
it  is  apparent  as  a  matter  of  law  from  the 
record  itself  that  the  federal  court  was 
without  jurisdiction.  In  re  Winn,  213  U. 
S.  458,  53  L.  Ed.  873.  29  S.  Ct.  515. 

"It  is  only  in  cases  where  the  record 
makes  it  clear,  as  matter  of  law,  that  the 
circuit  court  was  without  jurisdiction  to 
take  any  action  whatever  that  the  writ  of 
mandamus  lies.'"  In  re  Winn,  213  U.  S. 
458.  468,  53   L.   Ed.  873.  29   S.   Ct.   515. 

"Where,  without  any  right,  a  court  of 
the  United  States  has  wrested  from  a  state 
court  the  control  of  a  suit  pending  in  it  an 
appeal  or  writ  of  error,  at  the  end  of  long 
proceedings,  which  must  go  for  naught, 
is  not  an  adequate  remedy."  In  re  Winn, 
213  U.  S.  458,  467,  53  L.  Ed.  873,  29  S.  Ct. 
515. 

In  Ex  parte  Nebraska,  209  U.  S.  436,  52 
L.    Ed.  876,    28  S.    Ct.  581,    the    defendant 


842 


Vol.  VIII. 


MANDAMUS. 


59-63 


L.  Executive  and  Ministerial  Officers  of  Government — 6.  Officers  of 
Unitfd  States — c.  Heads  of  Departments — (3)  Secretary  of  Treasury. — See 
note  36. 

(7)  Secretary  of  Interior — (a)  In  General. — Mandamus  will  lie,  in  the  ab- 
sence of  other  controlling  facts,  to  compel  the  secretary  of  the  interior  to  restore 
to  the  freedman  rolls  of  the  Creek  Nation  the  names  of  those  who  have  been 
arbitrarily  stricken  from  such  rolls  without  the  notice  and  opportunity  to  be  heard 
essential  to  due  process  of  law.^*^^ 

d.  Subordinate  Officers — (4)  Land  Officers — (a)  In  General. — See  note  57. 
Mandamus  may  issue  if  the  secretary  of  the  interior  has  acted  wholly  without 
authority  of  law.-^"^ 


railwaj^  removed  the  cause  to  the  United 
States  court,  upon  the  ground  that  the 
state  was  not  a  proper  or  necessary  party 
to  the  suit,  and  that  the  controversy  was 
wholly  between  citizens  of  different  states. 
A  motion  to  remand  having  been  denied 
by  the  circuit  court,  this  court  issued  a 
rule  to  show  cause  why  a  mandamus 
should  not  be  allowed  ordering  the  re- 
manding of  the  cause.  Upon  the  hearing 
on  the  return  to  this  rule  the  court  de- 
clined to  take  jurisdiction  and  review  the 
action  of  the  trial  court.  It  was  said  that 
the  circuit  court  had  jurisdiction  to  pass 
upon  the  questions  raised  by  the  motion 
to  remand,  and  if  error  was  committed  in 
the  exercise  of  its  judicial  discretion.  Ex 
parte  Harding,  219  U.  S.  363,  371.  55  L.  Ed. 
252,  31   S.   Ct.  324. 

Mandamus  can  not  be  used  as  a  sul^sti- 
tute  for  an  appeal  or  writ  of  error  to  cor- 
rect the  error,  if  any,  committed  by  a  fed- 
eral circuit  court  in  denying  a  inotion  to 
remand,  which  presented  for  decision  the 
question  whether  there  w'as  in  the  case  a 
controversy  wholly  between  citizens  of 
different  states,  to  the  complete  deterini- 
nation  of  which  the  state,  though  named 
as  a  party  plaintiff,  was  not  a  neces&ary 
party.  Ex  parte  Nebraska,  209  U.  S.  436, 
52  L.  Ed.  876,  2S  S.  Ct.  581. 

In  Ex  parte  Gruetter,  217  U.  S.  586,  54 
L.  Ed.  892,  30  S.  Ct.  690.  the  doctrine  of 
In  re  Pollitz,  206  U.  S.  323,  51  L.  Ed.  1081 
and  Ex  parte  Nebraska.  209  U.  S.  436,  52 
L.  Ed.  876.  28  S.  Ct.  581,  was  reaffirmed. 
Ex  parte  Harding,  219  U.  S.  363,  372,  55  L. 
Ed.  252,  31   S.  Ct.  324. 

The  denial  by  a  federal  circuit  court  of 
a  inotion  to  remand  a  cause  to  a  state 
court,  because  of  the  opinion  that  the 
grounds  of  the  motion,  viz.,  that  the  suit 
was  to  recover  a  penalty,  and  was  not 
therefore  one  of  a  civil  nature,  that  the 
petition  and  record  did  not  show  that  the 
suit  was  sought  to  be  removed  to  the  cir- 
cuit court  for  the  district  in  whicii  either 
plaintiff  or  defendant  resided,  and  that 
the  defendant  did  not  specifically  pray  for 
the  removal  of  the  cause,  are  not  well 
founded,  can  not  be  reviewed  by  manda- 
mus. Ex  parte  Gruetter,  217  U.  S.  586,  54 
L.  Ed.  892,  30  S.  Ct.  690. 

59-36.      Secretary   of   treasury. — A    duty 


enforceable  by  mandamus,  and  not  one 
involving  the  exercise  of  judgment  and 
discretion,  was  imposed  upon  the  secre- 
tary of  the  treasury  by  Act  Feb.  17,  1903, 
32  Stat.  1612.  c.  559,  referring  to  him  the 
Parish  claim,  under  a  contract  to  furnish 
ice  to  the  government  at  a  fixed  price,  to 
"determine  and  ascertain  the  full  amount 
which  should  have  been  paid"  to  the  con- 
tractor "if  the  said  contract  had  been  car- 
ried out  in  full,  without  change  or  default 
made  by  either  of  the  parties,"  under  the 
ruling  of  the  measure  of  damages  laid 
down  by  the  federal  supreme  court,  and 
in  "accordance  with  the  evidence  in  the 
case  collected  by  the  court  of  claims,"  and, 
after  determining  the  full  amount  thus 
due,  to  deduct  all  payments,  and  pay  over 
the  balance  to  the  claimant.  Judgment 
(1907).  United  States  v.  Cortelyou,  30 
App.  D.  C.  45.  reversed.  Parish  v.  Mac- 
Veagh,  214  U.  S.  124,  53  L.  Ed.  936.  29  S. 
v>t.  556. 

61-46a.  Secretary  of  interior. — Turner 
V.  Fisher,  222  U.  S.  204.  56  L.  Ed.  165.  32 
S.  Ct.  37.  affirming  judgment  State  v.  Gar- 
field. 33  App.  D.  C.  195.  Garfield  r. 
Goldsby.  211  U.  S.  249.  53  L.  Ed.  168.  29  S. 
Ct.  62. 

63-57.  A  decision  of  the  secretary  of 
the  interior,  made  in  the  discharge  of  a 
duty  imposed  bj'  law  and  involving  the  ex- 
ercise of  judgment  and  discretion,  can  not 
be  reviewed  by  mandamus  and  he  can  not 
be  compelled  to  retract  it.  and  to  give  ef- 
fect to  another  not  his  own  and  not  hav- 
ing his  approval.  Ness  z:  Fishef,  223  U. 
S.  683,  691,  56  L.  Ed.  610,  32  S.  Ct.  356. 

"We  have  no  disposition  to  question 
those  cases  in  which  this  court  has  held 
that  the  courts  may  not  interfere  with  the 
land  department  in  the  administration  of 
the  public  lands  while  the  same  are  sub- 
ject to  disposition  under  acts  of  congress 
entrusting  such  matters  to  that  branch  of 
the  government."  Garfield  t'.  Goldsby.  211 
U.   S.  249,  260,   53   L.   Ed.   168,  29   S.   Ct.  62. 

63-57a.  Acting  without  authority. — 
"But  the  question  presented  for  adjudica- 
tion here  does  not  involve  the  control  of 
any  matter  committed  to  the  laud  depart- 
ment for  investigation  and  determination. 
The  contention  of  the  relator  is,  that  as 
the  secretary  had  exercised  the  authority 


843 


65-79 


MANDAMUS. 


Vol.  VIII. 


(c)    Delivery  of  Patent. — See  note  66a. 

M.  Mandamus  to  Public  Corporations — 3.  Enforcement  of  Municipal 
Obligations — b.  Contracts — (4j  Satisfied  by  Levy. — A  tax  levy  can  not  be 
deemed  sufficient  to  pay  the  judgments  on  county  bonds,  so  as  to  defeat  the  right 
to  mandamus  to  compel  the  levy  of  an  additional  tax  for  that  purpose,  where 
the  original  levy  was  with  the  purpose  only,  and  was  sufficient  only,  to  pay  the 
then  amount  of  the  judgments  with  accrued  interest,  and  no  provision  was  made 
for  the  interest  to  accrue,  which  amounted  to  a  large  sum  when  the  mandamus 
issued. ^^* 

4.  Levy  and  Collection  of  Taxes — r.  Excessive  Levies. — The  tax  levy  or- 
dered by  mandamus  to  satisfy  the  accrued  interest,  amounting  to  more  than 
$30,000,  on  judgments  on  county  bonds,  can  not  be  said  to  be  excessive  when, 
upon  the  presumed  assessed  valuation  of  the  property  in  the  county,  it  would 
produce,  if  collected  in  full,  an  excess  of  little  more  than  SlOO,  and  where,  since 
the  writ  issued,  additional  interest  to  the  amount  of  $10,000  has  accrued.^-^ 

N.  Mandamus  to  Private  Corporations — 1^.  To  Railroads — h.  To  Fur- 
nish Cars. — See  post,  "Exhausting  Other  Remedies,"  IX,  D,  3. 

IX.  Procedure. 

D.  Prerequisites — 1.  Demand. — A  demand  is  not  necessary  before  bringing 
suit  by  mandamus  to  compel  a  board  of  county  commissioners  to  levy  a  tax  to 
satisfy  judgments  on  county  bonds,  where  it  is  averred  that  it  is  clearly  the 
purpose  of  the  board  not  to  perform  the  duty  imposed  upon  it  by  such  judg- 
nients.4^^ 


conferred  upon  him  and  placed  his  name 
upon  the  rolls,  and  the  same  had  been 
certified  to  the  commission,  and  he  had 
received  an  allotment  certificate,  and  was 
in  possession  of  the  lands,  the  action  of 
the  secretary  in  striking  him  from  the  roll 
was  wholly  unwarranted,  and  not  within 
the  authority  and  control  over  public  land 
titles  given  to  the  interior  department."' 
Garfield  v.  Goldsby,  211  U.  S.  249,  260,  53 
L.  Ed.  168,  29  S.  Ct.  62. 

Mandamus  is  a  proper  remedy  where 
the  secretary  of  the  interior,  whclly  with- 
out authority  of  law,  has  summarily  erased 
from  the  approved  rolls  of  citizenship  in 
the  Choctaw  and  Chickasaw  Nations  the 
name  of  one  who  has  received  an  allot- 
ment certificate  and  is  in  possession  of 
the  land.  Judgment  (1907).  30  App.  D.  C. 
177,  affirmed.  Garfield  v.  Goldsby,  211  U. 
S.  249,  53  L.  Ed.  168,  29  S.  Ct.  62;  Garfield 
r.  Allison,  211  U.  S.  264,  53  L.  Ed.  176,  29 
S.  Ct.  67. 

INIandamus  to  compel  tlie  secretary  of 
the  interior  to  undo  his  action  in  summa- 
rily striking  from  the  approved  rolls  of 
citizenship  in  the  Choctaw  and  Chickasaw 
Nations  the  name  of  one  who  has  received 
an  allotment  certificate  and  is  in  posses- 
sion of  the  land  will  not  be  refused  on 
the  theory  that  his  case  comes  within  the 
provisions  of  Act  July  1,  1902  (32  Stat.  641, 
c.  1362),  establishing  a  citizenship  court, 
as  one  of  the  claimants  whose  judgment 
in  the  court  of  the  Indian  Territory  was 
annulled  by  the  subsequent  procedure  in 
the  citizenship  court,  leaving  him  the  rem- 


edy of  appealing  to  that  court,  and  that, 
having  failed  to  appeal,  he  lost  all  right 
to  enrollment,  where  it  does  not  appear 
whether  or  not  his  name  was  on  the  orig- 
inal or  other  tribal  rolls.  Judgment  (1907) 
30  App.  D.  C.  177,  affirmed.  Garfield  v. 
Goldsby,  211  U.  S.  249.  53  L.  Ed.  168,  29 
S.  Ct.  62;  Garfield  z:  Allison,  211  U.  S.  264, 
53  L.  Ed.  176,  29  S.  Ct.  67. 

65-66a.  Delivery  of  patent. — ]Mandamus 
will  lie  to  compel  the  secretary  of  the  in- 
terior to  perform  the  purely  ministerial 
duty  to  see  that  a  patent  is  duly  executed 
and  delivered  to  an  enrolled  member  of 
the  Choctaw  Nation,  entitled  to  share  in 
the  allotment  of  tribal  lands.  Judgment, 
Garfield  v.  United  States  (1907),  30  App. 
D.  C.  165,  affirmed.  Ballinger  :•.  Frost, 
216  U.   S.  240.  54  L.   Ed.  464,  30  S.  Ct.  338. 

68-91a.  Enforcement  of  municipal  obli- 
gations.— Commissioners  v.  Coler,  215  U. 
S.  296.  54  L.  Ed.  202,  30  S.  Ct.  111. 

77-32a.  Levy  and  collection  of  taxes. — 
Commissioners  v.  Coler,  215  U.  S.  296,  51 
L.  Ed.  202,  30  S.  Ct.  111. 

79-49a.  Demand.— "By  §  2764  of  the 
Compiled  Laws  of  New  Mexico  for  the 
j^ear  1897  it  is  provided  that  'when  the 
right  to  require  the  performance  of  the 
act  is  clear,  and  it  is  apparent  no  valid  ex- 
cuse can  be  given  for  not  performing  it, 
a  peremptory  mandamus  may  be  allowed 
in  the  first  instance.'  "  Commissioners  v. 
Coler,  215  U.  S.  296,  303,  54  L.  Ed.  202,  30 
S.  Ct.  111. 


844 


Vol.  \'III. 


MAXDAMUS. 


80-93 


3.  Exhausting  Other  Remedies. — Where  grievances  complained  of  were 
primarily  within  the  administrative  competency  of  the  interstate  commerce  com- 
mission they  are  not  subject  to  be  judicially  enforced  by  mandamus,  at  least  until 
that  body,  clothed  by  the  statute  with  authority  on  the  subject,  had  been  afforded 
by  a  complaint  made  to  it  the  opportunity  to  exert  its  administrative  functions. ^^^^ 

E.  Time  of  Instituting  Proceedings — 2.  Limitations  or  Laches. — See 
note  53. 

F.  Parties — 2.  Respondents — e.  Public  Corporations. — Counties  which  have 
received  a  portion  of  the  territory  of  Santa  Fe  county,  X.  ]\L,  are  not  necessary 
parties  to  proceedings  by  mandamus  to  compel  the  levy  of  a  tax  to  satisfy  judg- 
ments on  bonds  issued  by  the  latter  county,  where,  under  Laws  X.  'M.  1903,  p. 
30,  c.  20,  as  construed  by  the  territorial  supreme  court,  the  county  of  Santa  Fe 
can  compel  contribution  from  the  other  counties  which  have  received  a  portion 
of  its  territory  in  proportion  to  the  amount  of  taxable  property  received.-^'' 

J.  Alternative  Writ — 10.  Hearing  and  Determination — d.  Extent  of  In- 
quiry—  (3)    To  Matters  Determined  by  Judgment. — See  notes  53,  54. 


80-50a.  Exhausting  other  remedies. — 
The  g:rievances  produced  by  regulations 
adopted  by  a  railway  company  for  the  dis- 
tribution of  coal  cars  in  times  of  car 
shortage  to  the  bituminous  coal  mines 
served  by  it.  which  are  alleged  to  violate 
the  provisions  of  the  act  to  regulate  com- 
merce (Act  Feb.  4,  1887,  c.  104,  §  3.  24 
Stat.  380  [U.  S.  Comp.  St.  1907,  p.  3155]), 
prohibiting  unjust  preferences  or  undue 
discriminations,  can  not  be  redressed,  in 
advance  of  the  action  of  the  interstate 
commerce  commission,  by  mandamus  to 
prohibit  the  acts  complained  of  and  pre- 
scribe a  rule  or  regulation  for  the  future, 
since  the  provisions  of  Act  March  2,  1889, 
c.  382,  §  10,  25  Stat.  862  (U.  S.  Comp.  St. 
1901,  p.  3172),  authorizing  mandamus  to 
compel  the  furnishing  of  cars  and  other 
facilities  for  transportation,  must  be  lim- 
ited either  to  the  performance  of  duties 
v.'hich  are  so  plain  and  so  independent  of 
previous  administrative  action  of  the  com- 
mission as  not  to  require  a  prerequisite 
exertion  of  power  by  that  body,  or  to 
compelling  the  performance  of  duties 
which  plainly  arise  from  the  obligatory 
force  which  the  statute  attaches  to  the 
orders  of  the  commission,  rendered  within 
the  lawful  scope  of  its  authority,  until  set 
aside  by  the  commission  or  enjoined  by 
the  courts.  Decree  United  States  z\  Bal- 
timore &  O.  R.  Co.  (1908)  165  F.  113,  91  C. 
C.  A.  147,  reversed.  Baltimore,  etc.,  R. 
Co.  t:  Pitcairn  Coal  Co.,  215  U.  S.  481,  54 
L.  Ed.  292.  30  S.  Ct.  164. 

80-53.  Three  years. — A  delay  of  more 
than  three  years  after  the  court  of  claims 
decreed,  with  all  the  partieig  before  it,  that 
the  mandate  of  the  federal  supreme  court 
modifying  a  prior  decree  of  the  court  of 
claims,  awarding  the  Cherokee  Indians 
the  amounts  due  from  the  United  States 
under  treatj'  stipulations,  required  a  dis- 
tribution per  capita,  is  such  laches  as  bars 


mandamus  to  require  the  court  of  claims 
to  conform  to  such  mandate,  which,  it  is 
contended,  directed  a  per  stirpes  distribu- 
tion, and  such  delay  is  not  excused  on  the 
theory  that  the  remedy  by  mandamus  was 
only  available  when  the  roll  of  those  In- 
dians entitled  to  share  in  the  award,  pre- 
pared in  accordance  with  the  order  of  the 
court  of  claims,  was  approved,  because 
until  that  time  there  was  uncertainty  as 
to  what  the  court  might  do.  Matter  of 
Eastern  Cherokees.  220  U.  S.  S3,  55  L.  Ed. 
379,  31   S.   Ct.  373. 

85-81a.     Parties — Public  corporations. — 

Mandamus  to  compel  the  board  of  count}* 
commissioners  of  Santa  Fe  county,  N. 
'M.,  to  levy  a  tax  to  satisfy'  judgments  on 
county  bonds,  will  not  be  denied  because 
portions  of  that  county  have  since  been 
annexed  to  two  adjoining  counties,  where 
the  territorial  supreme  court  has  con- 
strued Laws  X.  'SI.  1903,  p.  30,  c.  20,  as  au- 
thorizing Santa  Fe  county  to  compel  con- 
tribution from  the  two  other  counties 
which  have  received  a  portion  of  its  ter- 
ritory, in  proportion  to  the  amount  of  tax- 
able property  received.  Judgment,  Terri- 
torj'  V.  Board  of  Com'rs  of  Santa  Fe 
County  (X.  M.  1907),  89  P.  252,  affirmed. 
Commissioners  z:  Coler,  215  U.  S.  296,  54 
L.  Ed.  202,  30  S.  Ct.  111. 

93-53.  Alternative  writ — Hearing  and 
determination. — [Matters  that  could  have 
been  urged  to  prevent  the  rendition  of 
the  judgment  sought  to  be  enforced  by 
mandamus,  can  not  be  set  up  to  prevent 
the  issuance  of  the  writ.  The  defense  that 
an  act  of  congress  validating  the  bonds  of 
a  territory  is  uncertain  and  indefinite  can 
not  be  set  up  as  a  defense  to  mandamus. 
Commissioners  v.  Coler,  215  U.  S.  296,  54 
L.  Ed.  202,  30  S.  Ct.  111. 

93-54,  Commissioners  v.  Coler,  215  U. 
S.  296,  54  L.  Ed.  202,  30  S.  Ct.  111. 


845 


105  MANDATE  AND  PROCEEDIXGS   THEREON.       Vol.  VIII. 


MANDATE  AND  PROCEEDINGS  THEREOM. 

III.  Remand  and  Directions  Thereon,  846. 

P.  In  Admiralty  Cases,  846. 

1.  Remand   for  Amendments,  846. 
T.  For  Further  Proceedings,  846. 
17.  For  Additional  Findings,   846. 

a.  In  General,  846. 

b.  Appeals   from   Court   of   Claims,  847. 
V.  For  New  Trial,  847. 

11.  Inquiry  before  a  Public   Service  Commission,  847. 
W.  For  Entry  of  Judgment,  847. 

8^.  For  Entry  of  Particular  Decree,  847. 
Z.  For  Dismissal  of  Proceedings,  848. 

5.  For  Want  of  Jurisdiction,  848. 

a.  In  General,  '848. 

6.  Without  Prejudice  to  Other  Action.  848. 

a.  Dismissal   for  Want   of  Jurisdiction,  848. 
(1)   In  General,  848. 

IV.  To  What  Courts  Directed,  848. 

A.  United  States  Courts,  848. 

1.  In  General,  &48. 

VII.  Proceedings  in  Lower  Court,  849. 

B.  Powers  and  Duties  on  Remand,  849. 

2.  Conformity  to  Mandate,  849. 

a.  In  General,  849. 

e.  Time  of  Compliance,  849. 

f.  In  Monopoly  Cases,  849. 

CROSS   REFERENCES. 

See  the  title  Mandate  and  Proceedings  Thereon,  vol.  8,  p.  97,  and  refer- 
ences there  given. 

As  to  the  enforcement  of  a  mandate  by  mandamus,  see  ante,  ^Mandamus,  p. 
838. 

III.  Remand  and  Directions  Thereon. 

P.  In  Admiralty  Cases — 1.  Remand  for  Amendments. — Where  a  cause  in 
admiralty  is  reversed  because  of  the  insufficiency  of  the  libel,  the  court  may  ac- 
company the  decree  of  reversal  with  directions  to  allow  an  amendment  of  the 
libel  so  as  to  properly  present  the  case.^*^*^ 

T.  For  Further  Proceedings — 17.  For  Additional  Findings — a.  In  Gen- 
eral.— The  absence  of  specific  findings  of  fact  by  the  trial  court,  to  which  specific 

105-30a.  Admiralty  cases — Amendments.  the  fact  that  the  sponges  may  have  been 

— The    Abby   Dodge,    223  U.  S.    166,  56    L.  taken    from    waters    within    the    territorial 

Ed.  390,  32  S.  Ct.  310.  limits  of  a  state,  will  be  accompanied  with 

A   decree   of  the   federal   supreme   court  directions  to  permit  the  government,  if  it 

which,  construing  the  Act  of  June  20,  1906,  desires,  to  amend  the  libel  so  as  to  present 

regulating  the  landing  of  sponges,  as  ap-  a  case  within  the  statute  as  so  construed, 

plicable  only  to  sponges  taken  outside  of  The  Abby  Dodge,  223  U.  S.  166,  56  L.  Ed. 

state   territorial   limits,    reverses   a   decree  390,    32    S.    Ct.    310.    following  The    Mary 

below,    fining    a    vessel    for    violating    the  Ann,  8  Wheat.  380,  390.  5  L.  Ed.  641. 
statute,  because  the  libel  fails  to  negative 

846 


Vol.  A'lII.       MAX  DATE  AXD  PROCEBDIXGS  THEREOX.        115-119 

objections  could  be  made,  require  that  a  decree  dismissing  a  bill  be  reversed  with 
instructions  to  refer  the  case  to  some  competent  master  to  report  fully  his  find- 
ings upon  all  of  the  questions  raised  by  either  party  separately,  with  leave  to 
both  parties  to  take  additional  evidence  within  a  time  to  be  fixed  by  the  court, 
which  shall,  upon  such  report,  proceed  as  equity  shall  require. s^'' 

b.  Appeals  from  Court  of  Claims. — Where  on  appeal  from  a  court  of  claims 
the  finding  below  on  the  matters  in  controversy  is  so  incomplete  and  inconclusive 
as  to  render  it  impossible  for  the  supreme  court  to  correctly  decide  the  cause,  the 
record  may  be  remanded  to  the  court  of  claims  for  additional  findings  of  fact.^^b 

V.  For  New  Trial — 11.  Inquiry  before  a  Public  Service  Commission. — 
If  an  inquiry  before  a  state  commission  for  the  regulation  of  rates  of  public 
service  corporations  has  been  founded  upon  the  actual  effect  of  rates  higher 
than  those  in  question,  upon  reversing  the  decree  below  the  cause  will  not  be 
dismissed,  even  without  prejudice,  but  will  be  remanded  for  a  new  trial. ^'^ 

W.  For  Entry  of  Judgment — 8>^.  For  Entry  oe  Particular  Decree. — 
Where  the  construction  based  upon  an  act  by  the  supreme  court  is  different  from 
the  construction  which  the  government  gave  to  the  act  in  suits  to  enforce  it,  upon 
reversing  and  remanding  a  decree,  the  character  of  the  decree  which  shall  be 


115-8fa.  For  additional  findings  in  gen- 
eral.— Lincoln  Gas,  etc..  Co.  v.  Lincoln, 
223  U.  S.  349.  56  L.   Ed.  466,  32   S.   Ct.  271. 

The  absence  of  specific  findings  of  fact 
by  the  trial  court  to  which  specific  objec- 
tion could  be  made  requires  that  a  decree 
dismissing  the  bill  of  a  lighting  company, 
which  assails  as  confiscatory  the  rates  for 
gas  fixed  by  municipal  ordinance,  be  re- 
versed, with  instructions  to  refer  the  case 
to  some  competent  master,  to  report  fullj- 
his  findings  upon  all  of  the  questions 
raised  by  either  party,  separately,  with 
leave  to  both  parties  to  take  additional 
evidence  within  a  time  to'  be  fixed  by  the 
court,  which  shall,  upon  such  report,  pro- 
ceed as  equity  shall  require.  Lincoln  Gas, 
etc.,  Co.  r.  Lincoln,  223  U.  S.  34'J,  56  L. 
Ed.   466,   32   S.   Ct.   271. 

115-85b.  Appeals  from  court  of  claims. 
—Ripley  z:  United  States,  220  U.  S.  491, 
55  L.  Ed.  557,  31   S.  Ct.  478. 

The  record  on  cross  appeals  from  an 
award  by  the  court  of  claims  under  a  con- 
tract for  a  public  work  will  be  remanded 
for  correction,  where  the  court  failed  to 
make  an  explicit  finding  as  to  the  knowl- 
edge and  good  faith  of  the  government  in- 
spector whose  action  is  alleged  to  have 
impeded  greatly  the  progress  of  the  work, 
to  the  claim.ant's  injury,  or  to  find  as  a 
fact  whether  or  not  complaint  of  the  in- 
spector's action  was  made  by  the  claim- 
ant to  a  superior  officer,  and,  if  made,  as 
to  the  date  of  such  complaint,  and  the  ac- 
tion taken  upon  it.  Ripley  v.  United 
States,  220  U.  S.  491,  55  L.  Ed.  557,  31  S. 
Ct.  478,  following  United  States  v.  Adams, 
6  Wall.  101,  18  L.  Ed.  792. 

Additional  findings  made  by  the  court 
of  claims  do  not  conform  to  the  mandate 
of   the    federal   supreme   court,   remanding 


the  record  on  cross-appeals  from  an 
award  under  a  contract  for  a  public  work, 
for  an  explicit  finding  as  to  the  knowledge 
and  good  faith  of  the  government  in- 
spector whose  action  is  alleged  to  have 
impeded  greatly  the  progress  of  the  work, 
to  the  claimant's  injury,  where  the  state- 
ment in  such  findings  that  the  inspector 
was  knowingly  acting  in  bad  faith  is  qual- 
ified by  other  language  which  shows  that 
such  knowledge  and  bad  faith  are  inferred 
solely  from  lapse  of  time,  with  nothing  to 
Indicpte  that  such  an  inference  is  a  reces- 
sary  conclusion.  Riplev  z\  Untred  States, 
222  U.  vS.  144,  56  L.  Ed.  "]31.  32  S.  Ct.  60. 

119-8a.  Inquiry  before  a  public  serv- 
ice commission. — Railroad  Comm^.  v.  Cum- 
berland Tel.,  etc.,  Co.,  212  U.  S.  414,  53  L. 
Ed.  577,  29  S.  Ct.  357,  reversing  CuniluM"- 
land  Telephone  &  Telegraph  Co.  v.  Rail- 
road Commission  of  Louisiana,  156  Fed. 
823.     See,  also,  post,  NEW  TRL\L. 

A  bill  seeking  to  enjoin,  as  confiscatory 
and  unreasonable,  the  enforcement  of  tele- 
phone rates  established  by  a  state  com- 
mission, will  not  be  dismissed,  even  with- 
out prejudice,  on  reversing  the  decree 
below,  granting  an  injunction,  because  of 
complainant's  failure  to  show  the  disposi- 
tion of  its  so-called  depreciation  fund,  but 
the  cause  will  be  remanded  for  a  new  trial 
where  the  inquiry  has  been  founded  upon 
the  actual  effect  of  rates  higher  than  those 
in  question,  and  hence  it  is  not  merely 
conjecture  as  to  what  will  be  the  result  of 
lower  rates.  Decree  (C.  C.  1907)  Cumber- 
land Telephone  &  Telegraph  Co.  v.  Rail- 
road Commission  of  Louisiana,  156  F.  823, 
reversed.  Railroad  Comm.  v.  Cumber- 
land Tel.,  etc.,  Co.,  212  U.  S.  414,  53  L.  Ed. 
577,  29  S.  Ct.  357. 


847 


122-127 


MANDATE  AND  PROCEEDINGS  THEREON.       Vol.  VHI. 


entered  will  not  be  directed  but  the  case  will  simply  be  reversed  and  remanded 
with  directions  to  apply  the  statute  under  its  proper  construction. -^^ 

Z.  For  Dismissal  of  Proceedings — 5.  For  Want  of  Jurisdiction — a.  In 
General. — See  notes  Z7,  38. 

6.  Without  Prejudice  to  Other  Action — a.  Dismissal  for  IVaiit  of  Juris- 
diction—  (1)  In  General. — See  note  47. 

IV.  To  What  Courts  Directed. 

A.  United  States  Courts — 1.  In  General. — As  a  general  rule,  under  the 
provisions  of  the  Judiciary  Act  of  1891,  where  a  case  comes  to  the  supreme  court 
on  certiorari  to  the  circuit  court  of  appeals,  it  will  be  disposed  of  so  that  the 
mandate  of  the  federal  supreme  court  to  avoid  circuity  will  go  directly  to  the 
lower  court. '^-^  But  to  this  rule  there  is  an  exception  where  certiorari  is  brought 
to  review  a  decision  made  final  in  the  circuit  court  of  appeals ;  in  such  a  case 
the  mandate  of  the  supreme  court  will  be  directed  to  the  circuit  court  of  ap- 
peals.^-" 


122-21a.  For  entry  of  particular  decree. 

— Attorney  General  z'.  Delaware,  etc.,  Co., 
21.3  U.  S.  366,  53  L.  Ed.  835,  29  S.  Ct.  527. 

125-37.  For  want  of  jurisdiction  in  gen- 
eral.—In  McGilvra  v.  Ross,  215  U.  S.  70. 
54  L.  Ed.  95,  30  S.  Ct.  27,  reversing  164 
Fed.  604,  90  C.  C.  A.  398,  it  is  held  that 
li  the  lower  court  dismisses  a  cause  on  its 
merits  when  it  has  no  jurisdiction,  the 
case  will  be  remanded  for  dismissal  for 
want  of  jurisdiction. 

A  decree  of  a  federal  circuit  court  of  ap- 
peals which,  after  correctly  deciding  that 
the  court  below  was  without  jurisdiction, 
inadvertently  affirmed  the  decree,  dis- 
missing the  bill  on  the  merits,  will  be  re- 
versed by  the  federal  supreme  court,  and 
the  case  remanded,  with  directions  to  set 
aside  the  decree  on  the  merits  and  sustain 
the  demurrer  for  want  of  jurisdiction,  and, 
on  that  ground,  dismiss  the  suit.  Decree 
(1908)  164  F.  604,  90  C.  C.  A.  398,  reversed. 
McGilvra  v.  Ross,  215  U.  S.  70,  54  L.  Ed. 
95,  30  S.  Ct.  27. 

A  decree  of  a  federal  circuit  court  dis- 
missing, apparently  on  the  merits,  a  bill 
which,  on  its  face,  shows  that  the  court 
had  no  jurisdiction,  will  be  reversed  by 
the  federal  supreme  court,  and  the  case 
remanded  to  the  circuit  court  with  direc- 
tions to  sustain  the  demurrer  for  want  of 
jurisdiction,  and  on  that  ground  dismiss 
the  suit.  Shawnee,  etc..  Drainage  Co.  v. 
Stearns,  220  U.  S.  462,  55  L.  Ed.  462,  31  S. 
Ct.  452,  citing  McGilvra  7'.  Ross,  215  U.  S. 
70,  54  L.  Ed.  95,  30  S.  Ct.  27. 

125-38.  Where  the  trial  court  properly 
dismisses  a  bill  for  want  of  jurisdiction, 
the  federal  supreme  court,  upon  reversing 
a  decree  of  the  appellate  court  and  affirm- 
ing that  of  the  trial  court,  will  direct  that 
such  affirmance  be  without  prejudice  to  the 
right  of  complainant  to  proceed  in  the 
proper  court.  Crozier  v.  Krupp,  224  U.  S. 
290,  56  L.  Ed.  771,  32  S.  Ct.  488. 

The  federal  supreme  court,  upon  revers- 
ing a  decree  of  the  court  of  appeals  of  the 


District  of  Columbia  with  directions  to 
affirm  a  decree  of  the  supreme  court  of 
the  district,  dismissing  the  bill  in  a  suit 
to  enjoin  an  army  officer  from  making  or 
causing  to  be  made,  guns  or  gun  carriages 
embodying  the  patented  inventions  owned 
by  complainant,  will  direct  that  such  af- 
firmance be  without  prejudice  to  the  right 
of  complainant  to  proceed  in  the  court  of 
claims,  under  the  Act  of  June  25,  1910, 
for  the  compensation  for  which  that  stat- 
ute provides.  Crozier  r.  Krupp,  224  U.  S. 
290,  56  L.  Ed.  771,  32  S.  Ct.  488. 

126-47.  Without  prejudice  to  other  ac- 
tion— Dismissal  for  want  of  jurisdiction. — 
See  ante,  "For  Want  of  Jurisdiction," 
III,  Z,  5. 

127-52a.  To  what  courts  directed — 
United  States  courts. — Lutcher,  etc..  Lum- 
ber Co.  z:  Knight,  217  U.  S.  257,  54  L.  Ed. 
757.  30  S.  Ct.  505. 

127-52b.  Decisions  made  final  in  circuit 
court  of  appeals. — Lutcher,  etc..  Lumber 
Co.  z'.  Knight,  217  U.  S.  257,  54  L.  Ed.  757, 
30  S.  Ct.  505,  reversing  156  Fed.  1022,  84 
C.  C.  A.  679. 

The  circuit  court  of  appeals,  and  not 
the  circuit  court,  is  the  court  to  which  the 
cause  will  be  remanded  by  the  federal  su- 
preme court  for  hearing  and  decision  upon 
reversing,  on  certiorari,  a  judgment  of 
the  circuit  court  of  appeals  which  affirmed 
a  judgment  of  the  circuit  court  on  the 
ground  that  the  defenses  relied  upon  be- 
low were  of  an  equitable  nature,  not  cog- 
nizable in  a  court  of  law,  while  the  trial 
court,  with  the  acquiescence  of  all  parties, 
treated  the  defenses  interposed  by  the 
answer  as  legal  in  their  nature,  and  no 
such  question  was  raised  by  either  party 
or  considered  when  the  cause  was  sub- 
mitted to  the  circuit  court  of  appeals. 
Judgment  (1907)  156  F.  1022,  84  C.  C.  A. 
679,  reversed.  Lutcher,  etc.,  Lumber  Co. 
V.  Knight,  217  U.  S.  257,  54  L.  Ed.  757,  30 
S.   Ct.  505. 


848 


A'ol.  VIII. 


MAXS  LAUGHTER. 


132-133 


VII.  Proceedings  in  Lower  Court. 

B.  Powers  and  Duties  on  Remand — 2.  Conformity  to  IMaxdate — a.  In 
General. — See  note  81. 

e.  Time  of  Compliance. — In  a  monopoly  case,  on  account  of  the  magnitude 
of  the  interests  involved  and  their  complexity  six  months  may  be  given  in  which 
to  execute  a  degree  for  the  dissohition  of  a  holding  company.'^"^  And  the  Su- 
preme Court  may,  in  its  discretion,  extend  the  period  for  complying  with  its 
mandate  even  beyond  six  months,  if  the  necessities  of  the  particular  case  re- 
quire it.^'^'' 

f.  In  Monopoly  Cases. — In  monopoly  cases  the  court  below  may  be  directed 
to  hear  the  parties,  by  evidence  or  otherwise  as  it  may  deem  proper,  for  the 
purpose  of  ascertaining  and  determining  upon  some  plan  or  method  of  dissolving 
the  combination  and  of  recreating,  out  of  the  elements  composing  it,  a  new  con- 
dition which  shall  not  be  repugnant  to  the  law.^"*^ 

MANSLAUGHTER.— See  ante.  Homicide,  p.  619. 


132-81.  Conformity  to  mandate. — A  de- 
cree of  a  federal  district  court  for  the 
transfer  to  certain  adverse  claimants  of  a 
part  of  the  proceeds  of  a  sale  of  property 
not  in  possession  of  the  trustee  in  bank- 
ruptcy, without  prejudice  to  the  rights  of 
such  trustee,  "if  this  court  shall  so  author- 
ize,' to  litigate  in  any  proper  court  the 
question  of  his  right  to  recover  such  funds 
as  a  part  of  the  bankrupt's  general  estate, 
is  a  sufficient  compliance  with  the  man- 
date of  the  federal  supreme  court,  which 
had  directed  the  remanding  of  the  case 
for  further  proceedings  in  conformitj'  with 
its  opinion,  in  which  it  was  stated  that 
the  district  court's  original  decree  should 
have  been  "without  prejudice  to  the  right 
of  respondents  to  litigate  in  a  proper 
court."  Ex  parte  First  Nat.  Bank,  207  U. 
S.  61,  52  L.  Ed.  103,  28  S.  Ct.  23.  reversing 
Ex  parte  Chicago  Title  &  Trust  Co.,  146 
Fed.  742,  77  C.  C.  A.  408. 

Decrees  for  the  absolute  dismissal  of 
suits  by  the  federal  government  to  enjoin 
railway  carriers  from  interstate  transpor- 
tation of  commodities  with  which  they 
are  associated  or  in  which  they  have  an 
interest  were  in  conformity  with  the  man- 
date of  the  federal  supreme  court,  which 
had  reversed  prior  decrees  of  dismissal 
founded  upon  the  alleged  unconstitution- 
ality of  the  statute  upon  which  the  suits 
were  based,  and  had  remanded  the  causes 
for  further  proceedings,  where  leave  to 
amend  was  not  asked,  and  upon  the  facts 
appearing  and  admitted  upon  the  record, 
no  violation  of  the  statute  was  shown. 
United  States  v.  Erie  R.  Co.,  220  U.  S.  275, 
55  L.   Ed.  464.  31   S.  Ct.  392. 

133-87a.  Exception  to  rule. — Standard 
Oil  Co.  V.  United  States,  221  U.  S.  1,  55 
L.  Ed.  619,  31  S.  Ct.  502.  See  post, 
MONOPOLIES  AND  CORPORATE 
TRUSTS. 

The  magnitude  of  the  interests  involved 
and    their    complexity     require      that      six 

12    U    S    Enc— 54  849 


months  be  given  in  which  to  execute  a 
decree  for  the  dissolution  of  a  holding 
company  controlling  the  oil  industry  in 
violation  of  the  Anti-Trust  Act  of  July  2, 
1890,  and  for  the  transfer  back  to  the 
stockholders  of  the  subsidiary  corpora- 
tions of  the  stock  which  had  been  turned 
over  to  the  holding  company  in  exchange 
for  its  own  stock.  Standard  Oil  Co.  v. 
United  States,  221  U.  S.  1,  55  L.  Ed.  619, 
31    S.    Ct.    502. 

133-87b.  Extending  time  beyond  six 
months. — -United  States  z\  American  To- 
bacco Co.,  221  U.  S.  106,  55  L.  Ed.  663, 
31   S.   Ct.  632. 

Six  months,  with  a  possible  extension 
of  sixty  days,  should  be  given  in  which  to 
work  out  a  plan  for  dissolving  a  combi- 
nation found  to  control  the  tol)acco  in- 
dustry in  violation  of  the  Anti-Trust  Act 
of  July  2,  1890,  and  recreating  out  of  the 
elements  composing  it  a  condition  which 
will  not  be  repugnant  to  the  prohibitions 
of  the  act.  United  States  v.  American  To- 
bacco Co.,  221  U.  S.  106,  55  L.  Ed.  663,  31 
S.  Ct.  632. 

133-87C.  In  monopoly  cases. — United 
States  z\  American  Tobacco  Co.,  221  U. 
S.   106,  55  L.   Ed.  663,  31   S.   Ct.  632. 

To  give  effective  force  to  a  decree  of 
the  federal  supreme  court  adjudging  that 
a  combination  controlling  the  tobacco  in- 
dustry offends  against  the  Anti-Trust  Act 
of  July  2,  1890,  the  court  below  will  be 
directed  to  hear  the  parties,  by  evidence 
or  otherwise,  as  it  may  deem  proper,  for 
the  purpose  of  ascertaining  and  determin- 
ing upon  some  plan  or  method  of  dis- 
solving the  combination,  and  of  recreat- 
ing, out  of  the  elements  composing  it,  a 
new  condition  which  shall  not  be  repug- 
nant to  the  law.  United  States  :•.  Ameri- 
can Tobacco  Co.,  221  U.  S.  106,  55  L.  Ed. 
663,  31  S.  Ct.  632.  See  post,  MONOPO- 
LIES  AND    CORPORATE   TRUSTS. 


146 


MANUFACTURE— MANUFACTURES. 


Vol.  VIIL 


MANUFACTURE— MANUFACTURES.— See  note  2. 


146-2.  "Manufacture  implies  a  change, 
but  every  change  is  not  manufacture,  and 
yet  every  change  in  an  article  is  th^i  re- 
sult of  treatment,  labor  and  manipulation. 
But  something  more  is  necessar}^  as  set 
forth  and  illustrated  in  Hartranft  v.  Wieg- 
mann,  121  U.  S.  609,  30  L.  Ed.  1012,  7  S. 
Ct.  1240.  There  must  be  transformation; 
a  new  and  different  article  must  emerge, 
'having  a  distinctive  name,  character  or 
use.'"  Anheuser-Busch  Brewing  Ass'n  v. 
United  States,  207  U.  S.  556,  562,  52  L.  Ed. 
336,  28  S.  Ct.  204. 

Corks  as  articles  of  manufacture. — Im- 
ported corks  used  in  bottling  beer  for  ex- 
port are  not  articles  of  manufacture  from 
imported  materials  within  the  meaning  of 
the  §  25  of  the  Act  of  Oct.  1,  1890,  allow- 
ing a  drawback  of  duties  on  such  articles 
when  exported  although  such  corks  were 
subjected  to  a  special  treatment  after  im- 
portation to  make  them  fit  for  the  purpose 
intended.  A  cork  put  through  this  special 
process  is  still  the  cork.  Anheuser-Busch 
Brewing  Ass'n  v.  United  States,  207  U.  S. 
556,  52  L.  Ed.  336,  28  S.  Ct.  204.     See  post, 

REVENUE  LAWS. 

Manufacturing  as  used  in  bankrupt 
laws. — "The  word  manufacturing,  as  used 
in  the  Bankrupt  Act,  has  no  definite  legis- 
lative meaning  by  reason  of  adoption 
from  other  bankrupt  acts,  as  is  the  case 
with  the  words  'trader'  or  'trading,'  and 
perhaps  other  words  with  well-understood 
common-law  meanings.  Though  British 
bankrupt  acts  were  in  existence  from  the 
time  of  Henry  VIII,  they  applied  only  to 
'traders'  until  1860,  when  they  were  ex- 
tended to  other  persons.  Our  own  orig- 
inal act,  that  of  1800,  applied  only  to 
traders,  bankers,  brokers  and  underwrit- 
ers. The  Act  of  1841  added  'merchants.' 
The  Act  of  1867  extended  practically  to 
all  persons  and  corporations.  That  of 
1898  limited  the  wide  application  of  the. 
Act  of  1867  to  the  class  of  business  cor- 
porations enumerated.  Thus  it  is  that  the 
words  manufacture  and  manufacturing 
have  no  meaning  derived  from  adjudica- 
tions of  any  former  law."  Friday  v.  Hall, 
etc.,  Co.,  216  U.  S.  449,  454,  54  L.  Ed.  562, 
30  S.  Ct.  261. 

A  corporation  whose  principal  business 
is  making  and  constructing  arches,  walls, 
and  abutments,  bridges,  buildings,  etc., 
out  of  concrete,  in  carrying  on  which  busi- 
ness it  buys  and  combines  together  raw 
materials,  and  supplies  the  necessary 
labor,  machinery,  and  appliances,  is  a 
"corporation  engaged  principally  in  man- 
ufacturing," within  the  meaning  of  the 
Bankrupt  Act  of  July  1,  1898  (30  Stat,  at 
L.  544,  chap.  541,  U.  S.  Comp.  Stat.  1901, 
p.  3418),  §  4  as  amended  by  the  Act  of 
Feb.  5,  1903  (32  Stat,  at  L.  797,  chap.  487, 
U.    S.    Comp.    Stat.    Supp.    1909,    p.    1309), 


defining  the  persons  or  corporations  which 
may  be  adjudged  involuntary  bankrupts, 
although  such  company  makes  its  product, 
and  gives  it  form  and  shape,  at  the  place 
where  it  is  to  remain.  Friday  v.  Hall,  etc., 
Co.,  216  U.  S.  449,  54  L.  Ed.  562,  30  S.  Ct. 
261.     See  ante,  BANKRUPTCY,  p.  168. 

It  is  not  denied  that  if  concrete  in  a 
shape  adapted  to  use  and  in  finished  form 
is  supplied  to  others  for  the  making  of  a 
house,  bridge,  pier,  arch  or  abutment,  that 
the  corporation  making  such  blocks  or 
shapes  would  be  in  the  most  narrow  sense 
one  engaged  in  manufacture.  But  it  is 
urged  that  this  corporation  made  these 
blocks  or  shapes  at  the  place  where  used, 
and  that,  as  finished,  they  became  a  part 
of  a  principal  structure  and  affixed  to  the 
realty;  and  that,  therefore,  they  were  not 
engaged  in  manufacturing,  which,  say 
counsel,  is  a  business  confined  to  those 
who  make  articles  which  may  be  "trans- 
ported and  sold  at  some  other  place  than 
that  where  made."  The  production  of 
concrete  arches,  or  piers,  or  abutments 
is  the  result  of  successive  steps.  The  com- 
bination of  raw  material,  the  sand,  the 
limestone,  the  cement  and,  the  water  pro- 
duced a  product,  which  undoubtedly  was 
manufactured.  This  concrete  had  then  to 
he  given  shape.  That  required  the  manu- 
facture of  moulds,  which  remain  in  place 
until  hardening  occurs.  If  the  concrete 
is  reinforced,  as  in  the  case  where  great 
strength  is  required,  then  the  adjustment 
of  the  bars  of  steel  within  the  moulds 
was  another  step.  The  operation  which 
in  the  end  is  to  produce  an  arch,  or  abut- 
ment, or  pier,  or  house,  is  not  necessarily 
a  single  operation,  but  one  of  successive 
repetitions  of  the  process.  The  business 
is  not  identical  with  that  of  a  mere  builder 
or  constructor  who  puts  together  the 
brick,  or  stone,  or  wood,  or  iron,  as  fin- 
ished by  another.  If  the  builder  made  his 
brick,  shaped  his  timbers,  and  joined 
them  all  together,  he  would  plainly  be  a 
manufacturer  as  well  as  a  builder;  and  if 
the  former  was  the  principal  part  of  the 
business,  he  would  be  within  the  defini- 
tion of  the  Bankrupt  Act.  To  say  that 
one  who  makes  and  then  gives  form  and 
shape  to  the  product  made  is  not  en- 
gaged in  manufacturing  because  he  makes 
his  product  and  gives  it  form  and  shape 
in  the  place  where  it  is  to  remain,  is  too 
narrow  a  construction.  Friday  v.  Hall, 
etc.,  Co.,  216  U.  S.  449,  455,  54  L.  Ed.  562, 
30  S.   Ct.  261. 

"Undoubtedly  congress  intended  that 
that  class  of  business  corporations  en- 
gaged in  any  class  of  manufacturing,  as 
its  principal  business,  and  not  as  a  mere 
minor  incident  to  some  larger  work, 
should  be  subject  to  the  law;  and  this  in- 
tention  should   be    regarded   by   giving   to 


850 


Vol.  VIII.  MASTER  AND  SERVANT.  146 

MANUSCRIPT.— See  ante,  Copyright,  p.  377. 

MARINE  INSURANCE.— See  the  title  ^Iarine  Insurance,  vol.  8,  p.  149, 
and  references  there  given. 

MARINERS.— See  post.  Seamen. 

MARINE  TORTS.— See  ante,  Admiralty,  p.  10 ;   Collision,  p.  243. 

MARITAL  RIGHTS.— See  ante,  Husband  and  Wiee,  p.  620. 

MARITIME  LIENS.— See  the  title  Maritime  LiEns,  vol.  8,  p.  218,  and  ref- 
erences there  given.  As  to  admiralty  jurisdiction,  see  ante.  Admiralty,  p.  10. 
As  to  ship  building  contracts  and  liens  arising  out  of  the  building  thereof,  see 
post,  \\'0RKiNG  Contracts. 

MARITIME  TORTS.— See  ante,  Admiralty,  p.  10:  Collision,  p.  243;  post, 
Ships  and  Shipping. 

MARKET. — See  the  title  Market,  vol.  8,  p.  245.  and  references  there  given. 

MARRIAGE.— See  the  title  Marriage,  vol.  8.  p.  247,  and  references  there 
given. 

MARRIAGE  CONTRACTS  AND  SETTLEMENTS.— See  the  title  Marriage 
Contracts  and  Skttlf.mI'Xts,  vol.  8,  p.  254,  and  references  there  given. 

MARRIED  WOMEN.— See  ante.  Husband  and  Wiee,  p.  620. 

MARSHALING  ASSETS  AND  SECURITIES.— See  the  title  Marshaling 
Assets  and  Securities,  vol.  8,  p.  261,  and  references  there  given. 

MARTIAL  LAW.— See  the  title  Martial  Law,  vol.  8,  p.  272,  and  references 
there  given. 


MASTER  AND  SERVANT. 
I.  When  Relation  Exists,  852. 

A.  In   General.   852. 

II.  Contract  of  Hiring,  852. 

B.  Breach  of  Contract,  852. 

III.  Liability  of  Master  to  Servant  for  Personal  Injuries,  852. 
A.  In  General,  852. 

C.  Duties  Owed  by  Master  and  Servant,  852.  .j 

3.  Duties  Stated  and  Applied,  852. 

a.  Duty  to  Provide   Safe  Place  to  A^'ork,  852. 

(1)    Statement   of   Rule,   852. 

b.  Duty  to  Provide   Safe  Machinery  and  Appliances,  853. 

(1)   Statement  of  Rule,  853. 
(3)   Application  of  Rule  to  Railroads,  853. 
(b)   Cars,  853. 

aa.  In  General,  853. 
bb.  Couplings,  854. 
f.  Duty  to  Warn  and  Instruct  Servant,  855. 

D.  Assumption  of  Risks  by  Servant,  855. 

1.  Distinguished  from  Contributory  Negligence,  855. 

doubtful  words  and  terms  a  liberal  rather  States,  171  U.  S.  210,  216,  43  L.  Ed.  139, 
than  a  narrow  meaning.  Manufacturing  Mr.  Justice  Rrown,  referring  to  the  ex- 
has  no  technical  meaning.  It  is  not  pansion  of  the  meaning  of  the  word 
limited  by  the  means  used  in  making,  nor  'manufacture,'  said  that  'the  word  is  now 
by  the  kind  of  product  produced.  In  ordinarily  used  to  denote  an  article  upon 
Kidd  V.  Pearson.  128  U.  S.  1,  20,  32  L.  Ed.  the  material  of  which  labor  has  been  ex- 
.'^46,  Mr.  Justice  Field  said  that  'manu-  pended  to  make  the  finished  product.' " 
facture  is  transformation,  the  fashioning  Friday  v.  Hall,  etc.,  Co.,  216  U.  S.  449, 
of  raw  material  into  a  change  of  form  or  4,54,  .54  L.  Ed.  502,  30  S.  Ct.  261. 
use.'      In  Tide   Water   Oil    Co.   v.   United 

851 


279-281  MASTER  AND  SERVANT.  Vol.  VIII. 

3.  What  Risks  Are  Assumed  by  Servant,  855. 

a.  Risks  Ordinarily  Incident  to   Service,  855. 

(1)  In   General,   855. 

(2)  Reason  for  Rule,  855. 

d.  Open  and  Obvious  Defects  and  Damages,  856. 
h.  Under  Federal  Safety  Appliance  Act,  856. 

4.  Remaining  in   Service  upon   Promise  to   Remove   Danger,  856. 

E.  Contributory  Negligence  of   Servant,  857. 

2.  What  Constitutes  Contributory  Negligence,  857. 
^a.  In  General,  857. 

a.  Knowledge  of  Defects  and  Dangers,  857. 

f.  Failure  to  Avail  of  Permission  to  Leave  Place  of  Work,  857. 

F.  Actions  for  Injuries,  857. 

2.  Instructions,  857. 

3.  Province  of  Court  and  Jury,  857. 

G.  Federal  Employer's  Liability  Act,  858. 

IV.  Liability  of  Master  to  Third  Persons  for  Acts  of  Servant,  859. 
B.  For  Tortious  Acts,  859. 

CROSS   REFERENCES. 

See  the  title  Master  and  Servant,  vol.  8,  p.  275,  and  references  there  given. 

In  addition,  see  ante.  Interstate  and  Foreign  Commerce,  p.  689;  Labor, 
p.  816. 

As  to  constitutionality  of  safety  appliance  act,  see  ante,  Constitutional 
Law,  p.  264;  Due  Process  oe  Law,  p.  475;  Interstate  and  Foreign  Com- 
merce, p.  689. 

I.  When  Relation  Exists. 

A.  In  General. — See  post,  "For  Tortious  Acts,"  IV,  B. 

II.  Contract  of  Hiring. 

B.  Breach  of  Contract. — Discharge  Because  of  Membership  in  La- 
bor Organization. — See  ante,  Constitutional  Law,  p.  264;  Due  Process 
of  Law,  p.  475  ;  Interstate  and  Foreign  Commerce,  p.  689. 

Constitutionality  of  Statutes  Punishing  Breach  of  Labor  Contracts. — 

See  ante,  Constitutional  Law,  p.  264;  Due  Process  of  Law,  p.  475;  Police 
Power. 

III.  Liability  of  Master  to  Servant  for  Personal  Injuries, 

A.    In  General.^See  note  10. 

C.  Duties  Owed  by  Master  and  Servant — 3.  Duties  Stated  and  Applied 
— a.  Duty  to  Provide  Safe  Place  to  Work — (1)  Statement  of  Rule. — See  notes 
21,  23. 

279-10,    "Where   workmen   are   engaged  taw,  etc.,  R.  Co.  v.  McDade,  191  U.  S.  64, 

in  a  business  more   or  less  dangerous,   it  66,  48   L.   Ed.  96,  24  S.   Ct.  24,  and  cases 

is  the  duty  of  the  master  to  exercise  rea-  there  cited. 

sonable  care  for  the  safety  of  all  his  em-  281-21.  McCabe,  etc.,  Constr.  Co.  v.  Wil- 
ployees,  and  not  to  expose  them  to  the  son,  209  U.  S.  275,  52  L.  Ed.  788,  28  S. 
danger  of  being  hurt  or  injured  by  the  use  Ct.  558;  Kreigh  v.  Westinghouse,  etc.,  Co., 
of  a  dangerous  appliance  or  unsafe  place  214  U.  S.  249,  53  L.  Ed.  984,  29  S.  Ct.  619, 
to  work,  where  it  is  only  a  matter  of  us-  following  Grand  Trunk  R.  Co.  v.  Cum- 
ing due  skill  and  care  to  make  the  place  mings,  106  U.  S.  700,  27  L.  Ed.  266,  1  S. 
and  appliances  safe.  There  is  no  reason  Ct.  493,  and  Deserant  v.  Cerillos,  etc.,  R. 
why  an  employee  should  be  exposed  to  Co.,  178  U.  S.  409,  420,  44  L.  Ed.  1127,  20 
dangers  unnecessary  to  the  proper  opera-  S.  Ct.  967.  See  ante,  FELLOW  SERV- 
tion  of  the  business    of     his     employer."  ANTS,  p.  579. 

Kreigh  v.  Westinghouse,  etc.,  Co.,  214  U.  281-23.    "The  duty  of  the  master  to  use 

S.  249,  53  L.  Ed.  984,  29  S.  Ct.  619;  Choc-  reasonable    diligence    in   providing   a   safe 

852 


Vol.  VIII.  MASTER  AXD  SERVANT.  281-283 

Duty  a  Continuing  One. — The  duty  of  providing  a  reasonably  safe  place 
for  the  carrying  on  of  the  work  is  a  continuing  one,  and  is  discharged  only 
when  the  master  furnishes  and  maintains  a  place  of  that  character.--^^ 

Place  Becoming  Unsafe  through  Negligence  of  Workmen. — But  while 
this  duty  is  imposed  upon  the  master,  and  he  can  not  delegate  it  to  another  and 
escape  liability  on  his  part,  nevertheless  the  master  is  not  held  responsible  for 
injuries  resulting  from  the  place  becoming  unsafe  through  the  negligence  of  the 
workmen  in  the  manner  of  carrying  on  the  work,  where  he,  the  master,  has  dis- 
charged his  primary  duty  of  providing  a  reasonably  safe  appliance  and  place 
for  his  employees  to  carry  on  the  work,  nor  is  he  obliged  to  keep  the  place  safe 
at  every  moment,  so  far  as  such  safety  depends  on  the  due  performance  of  the 
work  by  the  servant  and  his  fellow  workmen. ^^^^ 

b.  Duty  to  Proz'ide  Safe  Machinery  and  Appliances — (1)  Statement  of  Rule. 
— It  is  the  duty  of  the  master  not  to  expose  workmen  to  the  danger  of  being 
hurt  or  injured  by  the  use  of  a  dangerous  appliance,  when  it  is  only  a  matter 
of  using  due  skill  and  care  to  keep  the  appliances  safe.-^'^^  The  employee  is  not 
obliged  to  examine  into  the  employer's  methods  of  transacting  his  business,  and 
he  may  assume,  in  the  absence  of  notice  to  the  contrary,  that  reasonable  care 
will  be  used  in  furnishing  appliances  necessary  to  carrying  on  the  business.-"'^*'' 

(3)  Application  of  Rule  to  Railroads — (b)  Cars — aa.  In  General. — A  carrier 
using  in  moving  interstate  traffic  cars  whose  condition  does  not  satisfy  the  re- 
quirements of  the  Safety  Appliance  Acts  (Act  IMarch  2,  1893,  c.  196,  27  Stat.  531 
[U.  S.  Comp.  St.  1901,  p.  3174],  Act  April  1,  1896,  c.  87,  29  Stat.  85  [U.  S. 
Comp.  St.  1901,  p.  3175],  and  Act  March  2,  1903,  c.  976,  32  Stat.  943  [U.  S. 
Comp.  St.  Supp.  1909,  p.  1143]),  can  not  escape  the  penalty  therein  prescribed 
by  showing  that  it  exercised  reasonable  care  in  equipping  its  cars  with  the  re- 
quired safety  appliances,  and  used  due  diligence  to  keep  them  in  repair  by  the 
usual  inspection,  for  the  statutes  impose  an  absolute  duty  upon  the  carrier  which 

place  for  the  men  in  his  employ  to  work  202  U.  S.  438.  50  L.  Ed.  1094,  26  S.  Ct. 
in  and  to  carry  on  the  business  of  the  676,  it  was  declared:  'The  duty  is  a  con- 
master  for  which  they  are  engaged  has  tinning  one  and  must  be  exercised  when- 
been  so  frequently  applied  in  this  court,  ever  circumstances  demand  it.' "  Kreigh 
and  is  now  so  thoroughly  settled,  as  to  v.  Westinghouse,  etc.,  Co.,  214  U.  S.  249, 
require  but  little  reference  to  the  cases  53  L.  Ed.  984,  29  S.  Ct.  619. 
in  which  the  doctrine  has  been  declared."  281-23b.  Place  becoming  unsafe  through 
Kreigh  V.  \\estnighouse  etc^,  Co.,  214  U.  negligence  of  workmen.— Kreigh  i:  West- 
S.  249,  53  L.  Ed.  984,  29  S.  Ct.  619;  Balti-  i„ghouse,  etc.,  Co.,  214  U.  S.  249,  53  L. 
more,  etc.,  R  Co.  v.  Mackey,  157  U.  S.  72,  Ed.  984,  29  S.  Ct.  619,  citing  Armour  v. 
87,  39  L.  Ed.  624  15  S.  Ct  49i;  Union  Hahn,  111  U.  S.  313,  28  L.  Ed.  440,  4  S. 
Pac  R.  Co.  V.  OBnen,  161  U.  S.  451,  40  Ct.  433;  Perry  v.  Rogers,  157  X.  Y.  251, 
L.   Ed.   766,   16   S.   Ct.   618;   Choctaw,  etc.,  51   N    E    lO''! 

R.  Co.  V.  McDade,  191  U.  S.  64,  48  L.  Ed.  osq  Qn.^      tt     •   v,  \\t     ^-      u 

Qfi    •y±  G.    r^    o±  283-30a.     Kreigh  v.   Westinghouse,    etc., 

,.;.,                     r                                        .       ■  Co.,  214  U.   S.  249,  53  L.   Ed.  984,  29  S.   Ct. 

•Where   workmen   are     engaged     in     a  619,    approving    Choctaw,    etc.,    R.    Co.    v. 

business  more  or  less  dangerous,  it  is  the  McDade,  191  U.  S.  64,  66,  48  L.  Ed.  96,  24 

duty  of  the  master  to  exercise  reasonable  s.   Ct.   24.     See   St.   Louis,   etc.,   R.   Co.  v. 

care  for  the  safety  of  all  his  employees.  Taylor,  210  U.  S.  281,  52  L.   Ed.  1061,  28 

and  not  to  expose  them  to  the  danger  of  5.  Ct.  616 

being    hurt    or    injured    by    the    use    of    a  '"The   employer   had    no   duty,   statutory 

dangerous    apphance    or    unsafe    place    to  or  otherwise,  to  use  a  rail  to  guard  against 

work,  where  it  is  only  a  matter  of  using  so   obvious   a   danger  as   that   arising   out 

due  skill  and^care  to  make  the  place  and  ^f    two    cylinders    in    contact    with-each 

appliances     safe.  '      Kreigh     v.     Westing-  other  and  seen  to  be  revolving  inwardly." 

house,   etc.,   Co.,   214  U.   S.   249,  53   L.   Ed.  Butler  v.  Frazee,  211  U.  S.  459,  53  L.   Ed. 

984,   29   S.    Ct.   619;    Choctaw,   etc.,    R.   Co.  281.  29  S.  Ct.  136. 

V.  McDade,  191  U.  S.  64,  66,  48  L.  Ed.  96,  283'-30b.     Kreigh   v.   Westinghouse,   etc., 

24    S.    Ct.   24,    and   cases   there   cited.  Co.,  214  U.  S.  249,  53  L.  Ed.  984,  29  S.  Ct. 

281-23a.    Duty   a    continuing    one. — "As  619;  Choctaw,  etc.,  R.  Co.  v.  McDade,  191 

late   as   Santa   Fe   Pac.   R.   Co.  v.    Holmes,  U.  S.  64,  68,  48  L.  Ed.  96,  100,  24  S.  Ct.  24. 

853 


285 


MASTER  AND  SERVANT. 


Vol.  VIII. 


is  not  discharged  by  the  exercise  of  reasonable  care  or  diligence.^^^ 

bb.  Couplings. — Absolute  Duty  to  Provide  Automatic  Couplers. — An  ab- 
solute duty  to  provide  every  car  used  in  moving  interstate  traffic  with  automatic 
couplers,  and  to  maintain  them  in  proper  condition  at  all  times  and  under  all 
circumstances,  is  imposed  upon  interstate  carriers  by  Safety  Appliance  Act 
(March  2,  1893,  c.  196,  27  Stat.  531  (U.  S.  Comp.  St.  1901,  p.  3174),  which 
was  not  discharged  by  properly  equipping  the  car  with  automatic  couplers,  and 
using  due  diligence  to  keep  them  in  good  working  order. ^^^^ 

Cars  Embraced  by  Statute. — The  terms  of  the  original  Safety  Appliance 
Act  of  March  2,  1893,  were  such  that  its  application  depended,  first,  upon  the 
carrier  being  engaged  in  interstate  commerce  by  railroad,  and,  second,  upon  the 
use  of  the  car  in  moving  interstate  traffic.  It  did  not  embrace  all  cars  used 
on  the  line  of  such  a  carrier,  but  only  such  as  were  used  in  interstate  com- 
merce.^o"  The  act  was  amended  March  2,  1903,  32  Stat,  at  L.  943,  chap.  976, 
U.  S.  Comp.  Stat.  Supp.  1909,  p.  1143,  so  as  to  include  all  cars  used  on  any 
railroad   engaged   in   interstate   commerce. ^^'^ 

Drawbars. — Drawbars  of  unloaded  freight  cars  are  required  by  Safety  Ap- 
pliance Act  March  2.  1893,  c.  196.  §  5,  27  Stat.  531  (U.  S.  Comp.  St.  1901,  p. 
3174),  to  be  of  uniform  and  standard  height;  but  those  of  loaded  cars  need 
not  be  of  uniform  height,  provided  that  they  do  not  vary  more  than  the  three 
inches  prescribed  as  the  maximum  permitted  variation  from  the  standard.^^"^ 

Contributory  negligence  on  the  part  of  an  employee  was  a  defense  to 
an  action  founded  on  the  Safety  Appliance  Act  (Act  Alarch  2,  1893,  c.  196,  27 


285-39a.    Under  Safety  Appliance  Act. — 

Chicago,  etc.,  R.  Co.  v.  United  States,  220 
U.  S.  559,  55  L.  Ed.  582,  31  S.  Ct.  612,  af- 
firming 170   Fed.   556,   95    C.   C.   A.   642. 

285-40a.  Delk  v.  St.  Louis,  etc.,  R.  Co., 
320  U.  S.  580,  55  L.  Ed.  590,  31  S.  Ct.  617, 
reversing  158  Fed.  931,  86  C.  C.  A.  95,  14 
A.  &  E.  Cas.  233. 

285-40b.  Brinkmeier  v.  Missouri  Pac.  R. 
Co.,  224  U.  S.  268,  56  L.  Ed.  758,  32  S.  Ct. 
412;  Southern  R.  Co.  v.  United  States, 
222  U.  S.  20,  25,  56  L.  Ed.  72,  32  S.  Ct.  2. 

A  freight  car  loaded  with  interstate 
freight,  and  placed  on  a  side  track  in  the 
railway  yard  at  destination,  to  await 
simple  repairs  to  the  automatic  coupler, 
is  used  in  moving  interstate  commerce 
within  the  meaning  of  the  Safety  Appli- 
ance Act  of  March  2,  1893  (27  Stat,  at  L. 
531,  chap.  196,  U.  S.  Comp.  Stat.  1901,  p. 
3174),  when  a  coupling  with  another  car  is 
thereafter  attempted  by  the  carrier's  order, 
during  the  course  of  switchinsr  opera- 
tions. Delk  7'.  St.  Louis,  etc.,  R.  Co.,  220 
U.  S.  580,  55  L.  Ed.  590,  31  S.  Ct.  617. 

A  shovel  car  in  course  of  transporta- 
tion between  points  of  different  states, 
and  therefore  being  used  in  interstate  com- 
merce, is  a  car  within  contemplation  of 
§  2  of  the  act  of  congress  of  March,  1893. 
Schlemmer  v.  BufiFalo,  etc.,  R.  Co.,  220  U. 
S.  590,  55  L.  Ed.  596,  31  S.  Ct.  561,  ap- 
proving S.  C,  205  U.  S.  1,  13,  51  L.  Ed. 
681,  27  S.  Ct.  407. 

The  petition  states  no  cause  of  action 
under  the  original  Safety  Appliance  Act 
of  March  2,  1893  (27  Stat,  at  L.  531,  chap. 


196,  U.  S.  Comp.  Stat.  1901,  p.  3174),  mak- 
ing it  unlawful  for  any  railroad  carrier 
engaged  in  iiUerstate  commerce  "to  haul 
or  permit  to  be  hauled  or  used  on  its  line 
any  car  used  in  moving  interstate  traffic, 
not  equipped  with  couplers  coupling  au- 
tomatically by  impact,"  where  there  is  no 
allegation  that  either  of  the  cars  was,  at 
the  time  of  the  accident,  or  at  any  time, 
used  in  moving  interstate  traffic.  Brink- 
meier v.  Missouri  Pac.  R.  Co.,  224  U.  S. 
268,   56   L.   Ed.   758,   32   S.    Ct.   412. 

285-40C.  Brinkmeier  v.  Missouri  Pac.  R. 
Co..  224  U.  S.  268.  56  L.  Ed.  758,  32  S.  Ct. 
412. 

285-40d.  Drawbars. — St.  Louis,  etc.,  R. 
Co.  V.  Taylor,  210  U.  S.  281,  52  L.  Ed. 
1061,  28  S.  Ct.  616,  reversing  83  Ark.  591, 
98   S.  W.  958. 

The  statutory  duty  imposed  upon  car- 
riers in  absolute  terms  by  Safety  Appli- 
ance Act  March  2,  1893,  c.  196,  §  5,  27 
Stat.  531  (U.  S.  Comp.  St.  1901,  p.  3174), 
of  using  in  interstate  commerce  only  such 
freight  cars  as  comply  with  the  standard 
fixed  as  the  height  for  drawbars,  is  not 
discharged  by  furnishing  cars  constructed 
with  drawbars  of  the  standard  height,  and 
by  furnishing  to  competent  inspectors 
and  train  men  a  sufficient  number  of 
metallic  wedges  or  "shims,"  to  use  as  oc- 
casion demands  to  raise  to  the  legal 
standard  drawbars  lowered  by  the  natural 
effect  of  proper  use.  Judgment,  St.  Louis, 
I.  M.  &  S.  Ry.  Co.  V.  Neal  (1906),  98  S. 
W.  958,  83  Ark.  591,  reversed.  St.  Louis, 
etc.,  R.  Co.  V.  Tavlor.  210  U.  S.  281,  52  L. 
Ed.   1061,   28   S.   Ct.   616. 


854 


Vol.  A'lII. 


MASTER  AXD  SERVANT. 


285-289 


Stat  531  [U.  S.  Comp.  St.  1901.  p.  3174]),  although  by  §  8  of  that  act  the 
defense  of  assumption  of  risk  was  expressly  excluded.'* '^^ 

Exceptions  and  Burden  of  Proof. — The  burden  of  proof  is  upon  a  carrier 
to  bring  itself  within  the  exception  in  favor  of  four-wheeled  cars  which  is  made 
by  the  proviso  in  §  6,  Automatic  Coupler  Act  March  2,  1893,  c.  196,  27  Stat. 
532  [U.  S.  Comp.  St.  1901,  p.  3175]. ^of 

f.    Duty  to  JJ'arn  and  lusfnicf  Serz'ant. — See  note  47. 

D.  Assumption  of  Risks  by  Servant — 1.  Distinguished  from  Contrib- 
utory Negligence. — See  note  53. 

3.  What  Risks  Are  Assumed  by  Servant — a.  Risks  Ordinarily  Incident 
to  Service — (1)    In  General. — See  note  H. 

(2)    Reason  for  Rule. — See  note  58. 


285-40e.  Contributory  negligence. — 
Schlemmer  v.  Buffalo,  etc.,  R.  Co.,  220  U. 
S.  590,  55  L.  Ed.  596,  31  S.  Ct.  561,  affirm- 
ing judgment  (1909),  71  A.  1053,  222  Pa. 
470. 

The  benefit  of  the  provisions  of  the 
Safety  Appliance  Act  (Act  .March  2,  1893, 
c.  196,  §  8,  27  Stat.  532  [U.  S.  Comp.  St. 
1901,  p.  3176]),  excluding  the  defense  of 
assumption  of  risk,  was  not  refused  by 
holding  that  as  a  matter  of  law  an  ex- 
perienced railway  brakeman  who  persisted 
in  attempting  to  couple  in  a  dangerous 
way  a  car  having  an  automatic  coupler  to 
another  car  not  so  equipped,  when  a  safer 
method  was  called  to  his  attention,  and 
who  was  killed  because  he  raised  his 
head  while  making  the  coupling,  in  spite 
of  repeated  cautions,  was  guilty  of  con- 
tributory negligence,  defeating  any  re- 
covery. Schlemmer  v.  Buffalo,  etc.,  R. 
Co.,  220  U.  S.  590,  55  L.  Ed.  596,  31  S. 
Ct.  561,  affirming  judgment  in  71  A.  1053, 
^22  Pa.  470. 

"There  is  nothing  in  the  statute  absolv- 
ing the  employee  from  the  duty  of  using 
ordinary  care  to  protect  himself  from  in- 
jury in  the  use  of  the  car  with  the  appli- 
ances actually  furnished.  In  other  words, 
notwithstanding  the  company  failed  to 
comply  with  the  statute,  the  employee 
was  not,  for  that  reason,  absolved  from 
the  duty  of  using  ordinary  care  for  his 
own  protection  under  the  circumstances 
as  they  existed.  This  has  been  the  hold- 
ing of  the  courts  in  construing  statutes 
enacted  to  promote  the  safety  of  em- 
ployees. Krause  v.-  Morgan,  53  Ohio  St. 
26,  40  N.  E.  886;  Holum  v.  Chicago,  M. 
&  St.  P.  R.  Co.,  80  Wis.  299,  50  X.  W.  99; 
Grand  v.  Michigan  C.  R.  Co..  83  Mich. 
564,  11  L.  R.  A.  402,  47  N.  W.  837;  Taylor 
V.  Carew  Mfg.  Co.,  143  Mass.  470,  10  N. 
E.  308.  And  such  was  the  holding  of  the 
court  of  appeals  of  the  eighth  circuit, 
where  the  statute  now  under  considera- 
tion was  before  the  court.  Denver  &  R. 
G.  R.  Co.  V.  Arrighi,  63  C.  C.  A.  649,  129 
Fed.  347."  Schlemmer  v.  Buffalo,  etc., 
R.  Co.,  220  U.  S.  590,  55  L.  Ed.  596,  31 
S.    Ct.   561. 

285-40f.  Exception  and  Burden  of  Proof. 
—Judgment  (1903),  56  A.  417,  207  Pa.  198, 


reversed.  Schlemmer  :■.  Buffalo,  etc.,  R. 
Co.,  205  U.  S.  1,  51  L.  Ed.  681,  27  S.  Ct. 
407. 

287-47.  A  master  does  not  discharge 
his  duty  to  employees  working  in  a  dimly 
lighted  stable,  where  he  does  not  inform 
them  of  the  dangers  to  them  from  the 
customary  use  of  a  hole  in  the  ceiling  to 
pass  or  drop  hay  or  feed  to  the  floor  be- 
low. Standard  Oil  Co.  v.  Brown,  218  U. 
S.  78,  54  L.  Ed.  939,  30  S.  Ct.  669,  affirm- 
ing judgment  (1908),  31  App.  D.  C.  371. 

288-53.  "Where  *  *  *  assumption  of  risk 
sometimes  shades  into  negligence  as  com- 
monly understood,  there  is,  nevertheless, 
a  practical  and  clear  distinction  between 
the  two."  Schlemmer  z\  Buffalo,  etc.,  R. 
Co.,  220  U.  S.  590,  55  L.  Ed.  596.  31  S.  Ct. 
561,  reaffirming  S.  C,  205  U.  S.  1,  12,  51 
L.  Ed.  681,  27  S.  Ct.  407,  and  Choctaw, 
etc..  R.  Co.  V.  McDade,  191  U.  S.  64,  67, 
48    L.    Ed.    9G.    24    S.    Ct.    24. 

288-55.  Risks  ordinarily  incident  to 
service. — "In  the  absence  of  statute  taking 
away  the  defense,  or  such  obvious  dan- 
gers that  no  ordinarily  prudent  person 
would  incur  them,  an  employee  is  held  to 
assume  the  risk  of  the  ordinary  dangers 
of  the  occupation  into  which  he  is  about 
to  enter,  and  also  those  risks  and  dan- 
gers which  are  known,  or  are  so  plainly 
observable  that  the  employee  may  be  pre- 
sumed to  know  of  them,  and  if  he  con- 
tinues in  the  master's  employ  without  ob- 
jection, he  takes  upon  himself  the  risk  of 
injury  from  such  defects."  Schlemmer  v. 
Buffalo,  etc.,  R.  Co.,  220  U.  S.  590,  55  L. 
Ed.  596,  31  S.  Ct.  561;  Choctaw,  etc.,  R. 
Co.  V.  McDade,  191  U.  S.  64,  68,  48  L.  Ed. 
96.  24  S.  Ct.  24,  and  former  cases  in  the 
federal   supreme   court  therein   cited. 

289-58.  "The  rule  is  too  well  settled  to 
warrant  an  extensive  discussion  of  it  or 
an  attempt  to  analyze  the  different  rea- 
sons upon  which  it  has  been  held  to  be 
justified.  The  rule  of  assumption  of  risk 
has  been  thought  by  many  a  hard  one 
when  applied  to  the  complicated  condi- 
tions of  modern  industry,  so  largely  con- 
ducted by  the  aid  of  machinery  propelled 
by  irresistible  and  merciless  mechanical 
power,  and  the  criticism  frequently  has 
been    made    that    the    imperative    need    of 


855 


290-291 


MASTER  AND  SERVANT. 


Vol.  VIII. 


d.    Open  and  Obvious  Defects  and  Dangers. — See  note  62. 

h.  Under  Federal  Safety  Appliance  Act. — The  provisions  of  the  Safety  Ap- 
pHance  Act  of  March  2.  1893,  c.  196,  §  8,  27  Stat.  532,  U.  S.  Comp.  Stat.  1901, 
p.  3176,  exclude  the  defense  of  assumptions  of  risk.*^^^ 

4.  Remaining  in  Se;rvice  upon  Promise  to  Remove  Danger. — A  promise 
to  repair  or  replace  throws  the  risk  on  the  master  until  the  time  for  perform- 
ance has  gone  by,  and  it  does  away  with  or  leaves  to  the  jury  what  otherwise 
would  be  negligence  as  matter  of  law.  This  is  evidence  of  the  great  considera- 
tion with  which  workmen  are  treated  here,  but  can  not  be  deemed  a  necessary 
incident  of  all  civilized  codes.  It  can  not  be  assumed  without  proof  that  the 
law  of  a  foreign  county  in  this  respect  is  the  same  as  that  of  the  former.'"^'^ 


employment  leaves  to  the  workman  no 
real  freedom  of  choice,  such  as  the  rule 
assumes.  That  these  considerations  have 
had  an  influence  is  shown  by  the  no- 
torious unwillingness  of  juries  to  apply 
the  rule,  and  by  the  legislative  modifica- 
tions of  it  which,  from  time  to  time,  have 
been  made,  as,  for  instance,  by  congress 
in  the  safety  appliance  law."  Butler  v. 
Frazee,  211  U.  S.  459,  53  L.  Ed.  281,  29  S. 
Ct.   136. 

290-62.  One  who  understands  and  ap- 
preciates the  permanent  conditions  of  ma- 
chinery, premises,  and  the  like,  and  the 
danger  which  arises  therefrom,  or,  by  the 
reasonable  use  of  his  senses,  having  in 
view  his  age,  intelligence,  and  experience, 
ought  to  have  understood  and  appreciated 
them,  and  voluntarily  undertakes  to  work 
under  those  conditions  and  to  expose  him- 
self to  those  dangers,  can  not  recover 
against  his  employer  for  the  resulting  in- 
juries. Upon  that  state  of  facts  the  law 
declares  that  he  assumes  the  risks.  Butler 
V.  Frazee,  211  U.  S.  459,  53  L.  Ed.  281,  29 
S.    Ct.    136. 

"\Yhcre  the  elements  and  combination 
out  of  which  the  danger  arises  are  visible 
it  can  not  always  be  said  that  the  danger 
itself  is  so  apparent  that  the  employee 
must  be  held,  as  matter  of  law,  to  under- 
stand, appreciate,  and  assume  the  risk  of 
it.  Texas,  etc.,  R.  Co.  v.  Swearingen,  196 
U.  S.  51,  49  L.  Ed.  382,  25  S.  Ct.  164; 
Fitzgerald  v.  Connecticut  River  Paper  Co  , 
155  Mass.  155,  31  Am.  St.  Rep.  537,  29  N. 
E.  464.  The  visible  conditions  may  have 
been  of  recent  origin,  and  the  danger  aris- 
ing from  them  may  have  been  obscure. 
In  such  cases,  and  perhaps  others  that 
could  be  stated,  the  question  of  the  as- 
sumption of  the  risk  is  plainly  for  the 
jury.  But  where  the  conditions  are  con- 
stant and  of  long  standing,  and  the  dan- 
ger is  one  that  is  suggested  by  the  com- 
mon knowledge  which  all  possess,  and 
both  the  conditions  and  the  dangers  are 
obvious  to  the  common  understanding, 
and  the  employee  is  of  full  age,  intelli- 
gence, and  adequate  experience,  and  all 
these  elements  of  the  problem  appear 
without  contradiction,  from  the  plaintiff's 
own  evidence,  the  question  becomes  one 
of  law  for  the  decision  of  the  court.  Upcn 


such  a  state  of  the  evidence  a  verdict  for 
the  plaintiff  can  not  be  sustained,  and  it 
is  the  duty  of  the  judge  presiding  at  the 
trial  to  instruct  the  jury  accordingly.  Pat- 
ton  V.  Texas,  etc.,  R.  Co.,  179  U.  S.  658, 
45  L.  Ed.  361,  21  S.  Ct.  275,  and  cases 
there  cited.  The  case  at  bar  falls  within 
this  class."  Butler  v.  Frazee,  211  U.  S. 
459,   53   L.    Ed.  281.,   29    S.    Ct.   136. 

An  experienced  operator  of  full  age  as 
a  matter  of  law  assumes  the  risk  of  in- 
jury from  the  excessive  height  above  the 
feed  board  at  which  the  guard  rail  of  a 
laundry  mangle  is  adjusted,  where  she 
has  worked  for  some  months  at  this  ma- 
chine, during  which  time  the  guard  rail 
has  remained  in  the  same  position.  Judg- 
ment (1905),  25  App.  D.  C.  392,  affirmed. 
Butler  V.  Frazee,  211  U.  S.  459,  53  L.  Ed. 
281,   29    S.   Ct.   136. 

In  such  case  the  fact  that,  as  the  plain- 
tiff testified  in  substance  that  she  did  not 
know  and  appreciate  the  danger  which 
she  was  encountering,  with  the  other  facts 
in  the  case,  did  not  raise  an  issue  for  the 
jury,  for,  as  a  matter  of  law,  the  risk  had 
been  assumed.  Butler  7'.  Frazee,  211  U. 
S.  459,  53  L.   Ed.  281,  29  S.   Ct.  136,  138. 

District  of  Columbia. — "The  common 
law  in  this  regard  has  not  been  modified 
in  the  District  of  Columbia"'  Butler  v. 
Frazee,  211  U.  S.  459,  53  L.  Ed.  281,  29  S. 
Ct.   136. 

291-64a.  Under  Safety  Appliance  Act. 
— The  provisions  of  the  Safety  Appli- 
ance Act  (Act  March  2,  1893,  c.  196,  §  8, 
27  Stat.  532  [U.  S.  Comp.  St.  1901,  p. 
3176 1),  excluding  the  defense  of  assump,- 
tion  of  risk,  was  not  refused  by  holding 
that  as  a  matter  of  law  an  experienced 
railway  brakeman  who  persisted  in  at- 
tempting to  couple  in  a  dangerous  way  a 
car  having  an  automatic  coupler  to  an- 
other car  not  so  equipped,  when  a  safer 
method  was  called  to  his  attention,  and 
who  was  killed  because  he  raised  his  head 
while  making  the  coupling,  in  spite  of  le- 
peated  cautions,  was  guilty  of  contribti- 
tory  negligence,  defeating  any  recovery. 
Schlemmer  v.  Buffalo,  etc.,  R.  Co.,  220  U. 
S.  590.  55  L.   Ed.  596,  31  S.  Ct.  561. 

291-65a.  Cuba  R.  Co.  v.  Crosby,  222  U. 
S.   473,   56   L.    Ed.   274,   32   S.    Ct.   13.3. 

The  federal  courts  can  not  assume  with- 


856 


Vol.  VIII. 


MASTER  AND  SERVANT. 


291-295 


E.  Contributory  Negligence  of  Servant — 2.  What  Constitutes  Con- 
tributory Negligence — ^a.  In  General. — Contributory  negligence  is  the 
omission  of  the  employee  to  use  those  precautions  for  his  own  safety  which 
ordinary  prudence  requires."^*^*^ 

a.    Knozvledge  of  Defects  and  Dangers. — See  note  67. 

f.  Failure  to  Avail  of  Permission  to  Leave  Place  of  Work. — A  locomotive 
fireman  is  not  guilty  of  contributory  negligence  precluding  a  recovery  for  an 
injury  caused  by  the  giving  way  of  a  bridge  because  he  did  not  avail  himself 
of  the  engineer's  permission,  given  before  the  engine  moved  onto  the  bridge, 
to  leave  the  engine  and  go  back  on  the  train,  where  both  the  engineer  and  him- 
self were  advised  by  the  construction  force  that  the  bridge  was  safe.'^-^^ 

F.  Actions  for  Injuries — 2.  Instructions. — See  note  79. 
3.    Province  oe  Court  and  Jury. — See  note  80. 


out  proof  that,  under  the  law  of  Cuba, 
like  that  of  the  forum,  a  promise  to  re- 
pair or  replace  defective  machinery,  when 
notified  by  an  employee  of  the  defect, 
throws  upon  the  master  the  risk  of  in- 
jury to  such  employee  from  such  defect 
until  the  time  for  performance  has  ex- 
pired, or  tiiat  it  does  away  with  or  leaves 
to  the  jury  what  otherwise  would  be  neg- 
ligence as  a  matter  of  law.  Cuba  R.  Co. 
V.  Crosby,  222  U.  S.  473,  56  L.  Ed.  274,  32 
S.  Ct.  132. 

291-66a.  Schlemmer  z:  Buffalo,  etc.,  R. 
Co.,  220  U.  S.  590,  55  L.  Ed.  596,  31  S. 
Ct.  561.  See,  in  this  connection,  Narra- 
more  v.  Cleveland,  etc.,  R.  Co.,  48  L.  R. 
A.  68,  37   C.   C.  499,  509,  96  Fed.  298. 

"Since  the  plaintiff  jumped  from  the 
train  in  obedience  to  a  suggestion,  if  not 
an  order,  of  his  immediate  superior,  the 
section  foreman,  the  jury  might  have 
found  that  the  plaintiff  reasonably  thought 
he  could  rely  upon  the  judgment  of  the 
section  foreman,  and  that,  under  the  cir- 
cumstances, the  plaintiff's  act  was  not  so 
obviousl}'-  reckless  and  dangerous  as 
to  constitute  contributory  negligence." 
Texas,  etc.,  R.  Co.  v.  Bourman,  212  U.  S. 
536,  53  L.  Ed.  641,  29  S.  Ct.  319;  Northern 
Pac.  R.  Co.  v.  Egeland,  163  U.  S.  93,  41 
L.   Ed.   82,   16   S.   Ct.   975. 

Mounting  a  moving  car  by  placing  one 
foot  on  the  journal  box  and  catching  a 
hand  rail  running  through  standards  on 
the  side  of  the  car  and  within  easy  reach 
is  not,  as  a  matter  of  law,  contributory 
negligence  which  will  defeat  a  recovery 
by  a  brakeman  for  an  injury  from  the  giv- 
ing way  of  such  rail.'  El  Paso,  etc.,,  R. 
Co.  V.  Vizard,  211  U.  S.  608,  53  L.  Ed. 
348,  29   S.   Ct.  210. 

"There  was  testimony  that  plaintiff 
followed  a  common  way  of  getting  onto 
such  a  water  car.  Indeed,  on  an  open, 
moving  car,  a  hand  rail  running  through 
standards  on  the  side,  and  within  easy 
reach,  would  naturally  suggest  doing  just 
what  the  plaintiff  did."  El  Paso,  etc.,  R. 
Co.  7.:  Vizard,  211  U.  S.  608,  53  L.  Ed.  348, 
29   S.   Ct.  210. 


292-67.  El  Paso,  etc.,  R.  Co.  r.  Vizard, 
211  U.  S.  608,  53  L.  Ed.  348,  29  S.  Ct.  210. 

293-73a.  McCabe.  etc.,  Constr.  Co.  v. 
Wilson,  209  U.  S.  275,  52  L.  Ed.  788,  28 
S.  Ct.  558,  affirming  17  Okl.  355,  87  Pac. 
320. 

295-79.  Substituting  the  word  "would" 
for  "could"  in  a  requested  instruction  to 
the  effect  that  an  employee  assumed  the 
ordinary  risks  not  only  actually  known  to 
him.  but  so  far  as  they  could  have  been 
known  to  him  by  the  exercise  of  ordinary 
care  on  his  part,  and  that  if  he  knew,  or 
by  the  exercise  of  care  and  prudence 
could  have  known,  of  the  defect,  he  could 
not  recover,  is  not  reversible  error.  Stand- 
ard Oil  Co.  V.  Brown,  218  U.  S.  78,  54  L. 
Ed.  939,  30  S.   Ct.  669. 

295-80.  Instances. — Evidence  tending 
to  show  that  a  spur  railroad  track  was  not 
a  safe  and  proper  structure  for  the  opera- 
tion of  cars  is  sufficient  to  carry  to  the 
jury,  on  the  question  of  the  negligence  of 
the  railway  company,  an  action  to  recover 
for  the  killing  of  a  brakeman  while  riding 
on  a  car  which  plunged  over  the  end  of 
the  spur  track,  although  the  evidence  for 
the  railway  company  tended  to  show  that 
the  accident  was  due  to  the  negligence  of 
a  fellow  servant  in  ordering  the  car  to  be 
detached  from  the  train  and  engine.  Judg- 
ment (Ariz.  1905),  80  P.  337,  affirmed.  Gila 
Valley,  etc.,  R.  Co.  v.  Lyon,  203  U.  S.  465, 
51    L.    Ed.   276,   27    S.    Ct.    145. 

Whether  an  employee  injured  in  direct 
line  of  his  duty  by  a  swinging  bucket  of 
a  derrick  had  reason  to  expect  it  might 
swing  across  where  he  was  at  work  with- 
out notice  or  warning,  or  whether  due 
regard  for  his  own  safety  required  a  con- 
stant lookout  for  its  approach,  are  ques- 
tions for  the  jury  under  proper  instruc- 
tions. Judgment  (1907),  152  F.  120,  81 
C.  C.  A.  338,  11  L.  R.  A.  (N.  S.)  684,  re- 
versed. Kreigh  v.  Westinghouse,  etc., 
Co.,  214  U.  S.  249,  53  L.  Ed.  984,  29  S. 
Ct.    619. 

Expert  testimony  that  proper  construc- 
tion of  a  derrick  required  its  boom  to  be 
rigged  with  two  ropes,  or  the  mast  to  be 


857 


298  MASTER  AND  SERVANT.  Vol.  VIII. 

Questions  of  Law. — See  ante,  "Contributory  Negligence  of  Servant,"  III,  E. 

G.  Federal  Employer's  Liability  Act. — Among  the  departures  from  the 
common  law  made  by  the  Act  of  April  22,  1908,  ZS  St.  at  L.  65,  chap.  149,  U. 
S.  Comp.  Stat.  Supp.  1909,  p.  1071,  are  these:  (a)  The  rule  that  the  negli- 
gence of  one  employee  resulting  in  injury  to  another  was  not  to  be  attributed 
to  their  common  employer  is  displaced  by  a  rule  imposing  upon  the  -employer 
responsibility  for  such  an  injury,  as  was  done  at  common  law  when  the  injured 
person  was  not  an  employee;  (b)  the  rule  exonerating  an  employer  from  lia- 
bility for  injury  sustained  by  an  employee  through  the  concurring  negligence  of 
the  employer  and  the  employee  is  abrogated  in  all  instances  where  the  em- 
ployer's violation  of  a  statute  enacted  for  the  safety  of  his  employees  contrib- 
utes to  the  injury,  and  in  other  instances  is  displaced  by  the  rule  of  comparative 
negligence,  whereby  the  exoneration  is  only  from  a  proportional  part  of  the 
damages  corresponding  to  the  amount  of  negligence  attributed  to  the  employee; 
(c)  the  rule  that  an  employee  was  deemed  to  assume  the  risk  of  injury,  even 
if  due  to  the  employer's  negligence,  where  the  employee  voluntarily  entered 
or  remained  in  the  service  with  an  actual  or  presumed  knowledge  of  the  con- 
ditions out  of  which  the  risk  arose,  is  abrogated  in  all  instances  where  the  em- 
ployer's violation  of  a  statute  enacted  for  the  safety  of  his  employees  contrib- 
uted to  the  injury;  and  (d)  the  rule  denying  a  right  of  action  for  the  death 
of  one  person,  caused  by  the  wrongful  act  or  neglect  of  another,  is  displaced  by 
a  rule  vesting  such  a  right  of  action  in  the  personal  representatives  of  the  de- 
ceased, for  the  benefit  of  designated  relatives. ^-^ 

Effect  on  Contracts  against  Liability. — Existing  as  well  as  future  con- 
tracts of  the  prescribed  character  fall  within  the  condemnation  in  the  Em- 
ployers' Liability  Act  of  April  22,  1908,  §  5,  of  "any  contract,  rule,  regulation, 
or  devise  whatsoever,  the  purpose  or  intent  of  which  shall  be  to  enable  any  com- 
mon carrier  to  exempt  itself  from  any  liability  created  by  this  act."^^'' 

Constitutionality  as  to  States. — See  ante,  Constitutionai,  Law,  p.  264; 
Due  Process  of  Law,  p.  475  ;  Interstate  and  Foreign  Commerce,  p.  689. 

Constitutionality  as  to  District  of  Columbia  and  Territories. — See 
ante.  Interstate  and  Foreign  Commerce,  p.  689. 

provided  with  a  lever  to  control  the  swine  298-82a.  Departures  from  common  law. 
of  the  boom,  is  sufficient  to  carry  to  the  ■ — Second  Employers'  Liability  Cases,  ?23 
jury  the  question  whether  injury  to  a  U.  S.  1,  5G  L.  Ed.  327,  32  S.  Ct.  169. 
workman  struck  by  the  swinging  bucket  298-82b.  Contracts  against  liability.- — 
of  a  derrick  not  so  equipped  was  not  at-  Philadelphia,  etc.,  R.  Co.  v.  Schuijert,  224 
tributable  to  faults  of  construction  and  U.  S.  603,  56  L.  Ed.  911,  32  S.  Ct.  589. 
equipment  as  well  as  to  negligent  opera-  Stipulation  making  acceptance  of  rail- 
lion  by  fellow  servants.  Judgment  (1907),  way  relief  fund  benefit  release  com- 
152  F.  120.  81  C.  C.  A._  338,  11  L.  R.  A.  pany's  liability.— Stipulations  making  the 
(N.  S.)  684,  reversed.  Kreigh  v.  Westing-  acceptance  of  benefits  on  account  of  the 
house,  etc.,  Co.,  214  U.  S.  249,  53  L.  Ed.  injury  or  death  of  an  employee  under  a 
984,  29  S.  Ct.  619.  contract  of  membership  in  a  railway  re- 
No  reversible  error  is  committed  in  lief  department  equivalent  to  a  release  of 
leaving  to  the  jury  an  action  for  personal  the  company's  liability  must  be  deemed 
injuries  sustained  by  an  employee  from  to  fall  within  the  condemnation  in  the 
a  falling  timber,  while  he  was  digging  a  Employers'  Liability  Act  of  April  22, 
post  hole  under  a  coal  chute  and  other  1908,  §  5,  of  "any  contract,  rule,  regula- 
employees  were  tearing  up  a  floor  above  tion,  or  devise  whatsoever,  the  purpose 
him,  with  instructions  that  if  the  injury  or  intent  of  which  shall  be  to  enable  any 
was  due  to  the  negligence  of  the  master  common  carrier  to  exempt  itself  from  any 
in  sending  men  to  work  above  the  em-  liability  created  by  this  act,"  especially  in 
ployee,  as  a  contributory  cause,  the  mas-  view  of  the  proviso  of  that  section  per- 
ler  was  liable,  but  not  if  the  iniury  was  rnitting  a  set-ofif  of  any  sum  which  the 
due  only  to  the  negligence  of  fellow  serv-  company  may  have  contributed  toward 
ants  in  their  way  of  performing  their  any  benefit  paid  to  the  emploj^ee  or  his 
work.  Texas,  etc..  R.  Co.  v.  Howell,  224  legal  representative.  Philadelphia,  etc., 
U.  S.  577,  56  L.  Ed.  892,  32  S.   Ct.   601.  R.    Co.   v.    Schubert,   224   U.    S.    603,    56    L. 

Ed.   911,  32  S;   Ct.   589. 


Vol.  VIII. 


MASTER  AND  SERVANT. 


298 


As   Abrogating   Fellow    Servant   Rules. — See   ante,    Fe;i.i,ow    Servants, 
p.  579. 
Jurisdiction  of  State  and  Federal  Courts. — See  ante,  Courts,  p.  398. 

IV.  Liability  of  Master  to  Third  Persons  for  Acts  of  Servant. 

B.  For  Tortious  Acts. — One  who  employs  a  servant  to  do  his  work  is  an- 
swerable to  strangers  for  the  negligent  acts  or  omissions  of  the  servant,  com- 
mitted in  the  course  of  the  service. ^^'^  The  master's  responsibility  can  not  be 
extended  beyond  the  limits  of  the  master's  work.  If  the  servant  is  doing  his 
own  work  or  that  of  some  other,  the  master  is  not  answerable  for  his  negli- 
gence in  the  performance  of  it.^^''  This  rule  of  law,  though  of  comparatively 
modern  origin,  has  come  to  be  elementary.  But,  however  clear  the  rule  may 
be,  its  application  to  the  infinitely  varied  affairs  of  life  is  not  always  easy,  be- 
cause the  facts  which  place  a  given  case  within  or  without  the  rule  can  not  al- 
ways be  ascertained  with  precision.  The  servant  himself  is,  of  course,  liable 
for  the  consequences  of  his  own  carelessness.  But  when,  as  is  so  frequently  the 
case,  an  attempt  is  made  to  impose  upon  the  master  the  liability  for  those  con- 
sequences, it  sometimes  becomes  necessary  to  inquire  who  was  the  master  at 
the  very  tnne  of  the  negligent  act  or  omission. s^° 

"The  master"  is  the  person  in  whose  business  the  servant  is  engaged  at  the 
time,  and  who  has  the  right  to  control  and  direct  his  conduct.^^*^    One  may  be  in 


298-85a.  Standard  Oil  Co.  v.  Anderson, 
212  U.  S.  215,  53  L.  Ed.  480,  29  S.  Ct.  252. 

"The  reason  for  the  rule  is  not  clari- 
fied much  by  the  Latin  phrase  in  which  it 
is  sometimes  clothed.  They  are  rather 
restatements  than  explanations  of  the 
rule.  The  accepted  reason  for  it  is  that 
given  by  Chief  Justice  Shaw  in  the  case  of 
Farwell  v.  Boston  &  W.  R.  Corp.,  4  Met. 
49,  38  Am.  Dec.  339.  In  substance,  it  is 
that  the  master  is  answerable  for  the 
wrongs  of  his  servant,  not  because  he  has 
authorized  them  nor  because  the  servant, 
in  his  negligent  conduct,  represents  the 
master,  but  because  he  is  conducting  the 
master's  affairs,  and  the  inaster  is  bound 
to  see  that  his  affairs  are  so  conducted 
that  others  are  not  injured.  It  is  said 
in  that  case  that  this  is  a  'great  prin- 
ciple of  social  duty,'  adopted  'from  gen- 
eral considerations  of  policy  and  secu- 
rity.'"  Standard  Oil  Co.  v.  Anderson,  212 
U.    S.   215,   53   L.    Ed.   480,  29   S.    Ct.   252. 

298-85b.  Standard  Oil  Co.  v.  Anderson, 
212  U.  S.  215,  53  L.  Ed.  480,  29  S.  Ct.  252. 

"The  liability  of  a  master  for  the  acts 
of  his  servant  extends  only  to  such  acts 
of  the  servant  as  are  done  by  him  in  the 
course  of  the  master's  service.  The  m.as- 
ter  is  not  liable  for  acts  done  by  the  serv- 
ant out  of  the  scope  of  his  duty,  even 
though  the  master  may  have  entered  into 
a  bargain  that  his  servant  should  be  em- 
ployed by  another,  and  is  paid  for  such 
service,  as  was  done  here.  *  *  *  'jf  j 
lend  my  servant  to  a  contractor,  who  is 
to  have  the  sole  control  and  superintend- 
ence of  the  work  contracted  for,  the 
independent  contractor  is  alone  liable  for 
any  wrongful  act  done  by  the  servant 
while    so   employed.      The    servant   is    do- 


ing, not  my  work,  but  the  work  of  the  in- 
dependent contractor.'  "  Standard  Oil 
Co.  z:  x\nderson,  212  U.  S.  215,  53  L.  Ed. 
480,   29    S.    Ct.   252. 

298-85C.  Standard  Oil  Co.  z'.  Anderson, 
212  U.   S.  215,  53  L.   Ed.  480,  29   S.  Ct.  252. 

298-85d.  "The  master."— Standard  Oil 
Co.  ?'.  Anderson,  212  U.  S.  215,  53  L.  Ed. 
480.   29    S.    Ct.   252. 

"It  sometimes  happens  that  one  wishes 
a  certain  work  to  be  done  for  his  benefit, 
and  neither  has  persons  in  his  employ 
who  can  do  it  nor  is  willing  to  take  such 
persons  into  his  general  service.  He  may 
then  enter  into  an  agreement  with  an- 
other. If  that  other  fm-nithes  him  with 
men  to  do  the  work,  and  places  them  un- 
der his  exclusive  control  in  the  per- 
formance of  it,  those  men  become  pro 
hac  vice  the  servants  of  him  to  whom 
they  are  furnished.  But,  on  the  other 
hand,  one  may  prefer  to  enter  into  an 
agreement  with  another  tliat  that  other, 
for  a  considei-ation,  sinill  himself  perform 
the  work  through  servants  of  his  ov.'u 
selection,  retaining  the  direction  and  C(.in- 
trol  of  them.  In  the  first  case,  he  to 
whom  ti'C  workmen  are  fuinished  is  re- 
sponsible for  tlieir  negligence  in  the  con- 
duct of  the  work,  because  the  work  is 
his  work,  and  they  are.  for  the  time,  his 
workmen.  ]n  the  second  case,  he  who 
agrees  to  furnish  the  completed  work 
through  servants  over  whom  he  retains 
control  is  responsible  for  their  negli- 
gence in  the  conduct  of  it,  because, 
though  it  is  done  for  the  ultimate  benefit 
of  tlie  other,  it  is  still,  in  its  doing,  his 
own  work.  To  determine  whether  a  given 
case  falls  within  the  one  class  or  the 
other  we  must  inquire  vihose  is  the  work 


859 


298 


MASTER  AXD  SERVANT. 


\o\.  VIII. 


the  general  service  of  another,  and,  nevertheless,  with  respect  to  particular  work, 
may  be  transferred,  with  his  own  consent  or  acquiescence,  to  the  service  of 
a  third  person,  so  that  he  becomes  the  servant  of  that  person,  wnth  all  the  legal 
consequences  of  the  new  relation. '^^^  But  the  mere  fact  that  a  servant  is  sent 
to  do  work  pointed  out  to  him  by  a  person  who  has  made  a  bargain  with  his 
master  does  not  make  him  that  person's  servant ;  more  than  that  is  necessary 
to  take  him  out  of  the  relation  established  by  the  only  contract  which  he  has 
made,  and  to  make  him  a  voluntary  subject  of  a  new  sovereign — as  the  master 
sometimes  was  called  in  the  old  books. ^*^^ 


being  performed — a  question  which  is 
usually  answered  by  ascertaining  who  has 
the  power  to  control  and  direct  the  serv- 
ants in  the  performance  of  their  work. 
Here  we  must  carefully  distinguish  be- 
tween authoritative  direction  and  control, 
and  mere  suggestion  as  to  details  or  the 
necessary  co-operation,  where  the  work 
furnished  is  part  of  a  larger  undertaking." 
Standard  Oil  Co.  v.  Anderson,  212  U.  S. 
215,   53   L.   Ed.   480,  29   S.   Ct.  252. 

"In  many  of  the  cases  the  power  of  sub- 
stitution or  discharge,  the  payment  of 
wages,  and  other  circumstances  bearing 
upon  the  relation,  are  dwelt  upon.  They, 
however,  are  not  the  ultimate  facts,  but 
only  those  more  or  less  useful  in  de- 
termining whose  is  the  work  and  whose 
is  the  power  of  control."  Standard  Oil 
Co.  V.  Anderson,  212  U.  S.  215,  53  L.  Ed. 
480.  29   3.   Ct.  252. 

"These  principles  are  sustained  by  the 
great  weight  of  authority,  to  which  some 
reference  will  now  be  made.  The  simplest 
case,  and  that  which  was  earliest  decided, 
was  where  horses  and  a  driver  were  fur- 
nished by  a  liveryman.  In  such  cases  the 
hirer,  though  he  suggests  the  course  of 
the  journey,  and,  in  a  certain  sense,  di- 
rects it,  still  does  not  become  the  mas- 
ter of  the  driver,  and  responsible  for  his 
negligence,  unless  he  specifically  directs 
or  brings  about  the  negligent  act.  Quar- 
man  v.  Burnett,  6  Mees.  &  W.  499;  Jones 
V.  Liverpool,  L.  R.  14,  Q.  B.  Div.  890; 
Little  V.  Hackett,  116  U.  S.  366,  29  L.  Ed. 
652,  6  S.  Ct.  391.  Though  even  in  such 
cases,  if  the  exclusive  control  over  the 
driver  be  in  the  hirer,  he  may  be  respon- 
sible as  master.  Jones  v.  ScuUard  (1898), 
2  Q.  B.  565."  Standard  Oil  Co.  v.  Ander- 
son, 212  U.  S.  215,  53  L.  Ed.  480,  29  S. 
Ct.  252. 

2S8-85e.  Standard  Oil  Co.  v.  Anderson, 
212  U.  S.  215,  53  L.  Ed.  480,  29  S.  Ct. 
252. 

298-85f.  Standard  Oil  Co.  v.  Anderson, 
212  U.   S.  215,  53   L.  Ed.  480,  29  S.  Ct.  252. 

A  winchman  in  the  general  employ  of 
a  shipper  remains  the  latter's  employee 
for  the  purpose  of  fixing  responsibility  for 
injuries  through  his  negligence  upon  a 
longshoreman  employed  by  a  master 
stevedore  whose  contract  with  the  shipper 


to  load  a  vessel  requires  him  to  pay  the 
latter  an  agreed  compensation  for  the 
hoisting,  and  who  has  no  control  over  the 
movements  of  the  winchman  except  that 
the  latter's  hours  of  labor  necessarily  con- 
form to  those  of  the  longshoremen,  and 
that,  in  timing  the  raising  and  lowering, 
he  obeys  the  signals  of  a  gangman  repre- 
senting the  master  stevedore.  Judgment 
(1907),  152  F.  166,  81  C.  C.  A.  399,  affirmed 
Standard  Oil  Co.  v.  Anderson,  212  U.  S. 
215,  53   L.   Ed.   480,   29   S.   Ct.   252. 

"The  winchman  was,  undoubtedly,  in 
the  general  employ  of  the  defendant,  who 
selected  him,  paid  his  wages,  and  had 
the  right  to  discharge  him  for  incompe- 
tency, misconduct,  or  any  other  reason. 
In  order  to  relieve  the  defendant  from  the 
results  of  the  legal  relation  of  master  and 
servant  it  must  appear  that  that  relation, 
for  the  time,  had  been  suspended,  and  a 
new  like  relation  between  the  winchman 
and  the  stevedore  had  been  created.  The 
evidence  in  this  case  does  not  warrant  the 
conclusion  that  this  changed  relation  had 
come  into  existence.  For  reasons  satis- 
factory to  it  the  defendant  preferred  to 
do  the  work  of  hoisting  itself,  and  re- 
ceived an  agreed  compensation  for  it. 
The  power,  the  winch,  the  drum,  and  the 
winchman  were  its  own.  It  did  not  fur- 
nish them,  but  furnished  the  work  they 
did  to  the  stevedore."  Standard  Oil  Co. 
V.  Anderson,  212  U.  S.  215,  53  L.  Ed.  480, 
29    S.    Ct.   252. 

"^luch  stress  is  laid  upon  the  fact  that 
the  winchman  obeyed  the  signals  of  the 
gangman,  who  represented  the  master 
stevedore,  in  tiining  the  raising  and  lower- 
ing of  the  cases  of  oil.  But  when  one 
large  general  work  is  undertaken  by  dif- 
ferent persons,  doing  distinct  parts  of  the 
same  undertaking,  there  must  be  co- 
operation and  co-ordination,  or  there  will 
be  chaos.  The  giving  of  the  signals  un- 
der the  circumstances  of  this  case  was 
not  the  giving  of  orders,  but  of  infor- 
mation; and  the  obedience  to  those 
signals  showed  co-operation  rather  than 
subordination,  and  is  not  enough  to 
show  that  there  has  been  a  change  of 
masters."  Standard  Oil  Co.  v.  Anderson, 
212  U.  S.  215,  53  L.  Ed.  480,  29  S.  Ct. 
252. 


860 


A'ol.  Mil.      MERCHAXT—MERCAXTILE—MERCHAXDISE.      312-338 


MASTERS  IN  CHANCERY.— See  post,  Reference. 
MASTERS   OF   VESSELS.— See  the  title  :\1asters  of  Vessels,  vol. 
300.  and  references  there  ?iven.     In  addition,  see  ante,  AliExs_,  p.  18. 
MATURE.— See  note  3l2-2a. 


8,  p. 


MAXIMS. 

II.  Equitable  Maxims,  861. 

A.  Relating  to  Parties.  861. 

1.  He  \\'ho  Seeks  Equity  ^lust  Do  Equity.  861. 

CROSS  REFERENCES. 

See  the  title  ^vIaxims,  vol.  8,  p.  313,  and  references  there  given. 

II.   Equitable  Maxims. 

A.  Relating  to  Parties — 1.  He  Who  Seeks  Equity  Must  Do  Equity. — 
This  maxim  applies  to  him  who  affirmatively  seeks  equitable  relief.  It  does 
not  apply  where  the  relief  asked  is  merely  defensive. ^•'^^ 

MEASURED  IN   PLACE.— See  note  327-2a. 

MEASURE  OF  DAMAGES.— See  ante,  Damages,  p.  455.  The  specific  titles 
should  be  consulted  in  everv  instance. 

MECHANICAL  EQUIVALENTS.— See  post.  Patents. 

MECHANICS'  LIENS.— See  the  title  Mechanics'  Liens,  vol.  8.  p.  328,  and 
references  there  given. 

MERCHANT— MERCANTILE— MERCHANDISE.— See  note  1. 


312-2a.  Order  of  state  court  stating 
that  rehearing  was  deemed  on  mature 
consideration. — An  order  of  the  highest 
stale  court,  made  in  passing  upon  the  pe- 
tition for  rehearing  which  recites  that, 
"on  mature  consideration."'  the  prayer  of 
said  petition  is  denied,  does  not  show 
that  the  court  passed  itpon  the  federal 
questions  first  raised  by  such  petition,  so 
as  to  sustain  a  writ  of  error  from  the  su- 
preme court  of  the  United  States.  Forbes 
V.  State  Council,  216  U.  S.  396,  54  L.  Ed. 
534,  30   S.   Ct.  295. 

315-13a.  He  who  seeks  equity  must  do 
equity. — Columbus  v.  Mercantile  Trust, 
etc..  Co..  218  U.  S.  645,  54  L.  Ed.  1193,  31 
S.   Ct.    105. 

Thus  the  maxim  does  not  justify  a 
court  in  denying  to  a  municipality  rescis- 
sion under  its  cross  bill  of  a  contract  with 
a  waterworks  company  which  the  latter 
has  broken  by  failing  to  maintain  a  con- 
tinuous and  adequate  supply  of  whole- 
some water,  and  in  affirmatively  restrain- 
ing the  municipalit}'  from  establishing  its 
own  system  unless  it  shall  do  equity  to 
the  bondholders  of  the  waterworks  com- 
pany by  purchasing  the  tisable  parts  of 
the  waterworks  system.  Columbus  v. 
Mercantile  Trust,  etc.,  Co.,  218  U.  S.  645, 
54  L.   Ed.   1193.  31   S.   Ct.  105. 

327-2a.  Measured  in  place. — See  Bow- 
ers, etc..  Dredging  Co.  :'.  United  States. 
211  U.  S.  176,  53  L.  Ed.  136.  29  S.  Ct.  77. 
See  post,   MINES  AXD  MINERALS. 


338-1.  Mercantile  pursuit. — "A  corpora- 
tion engaged  principally  in  running  hotels 
is  not  a  corporation  engaged  principally 
in  'trading'  or  'mercantile  pursuits.'  An 
innkeeper  is  one  who  maintains  a  house 
for  the  entertainment  of  strangers,  for  a 
reasonable  compensation.  To  secure  this 
compensation  he  is  given  a  lien  upon  the 
property  of  his  guests  within  the  inn. 
For  this  property  he  is  under  liability 
much  like  that  of  a  common  carrier.  So 
long  as  he  has  room,  he  must  receive  all 
who  may  apply  and  are  fit  persons.  He 
may  not  discriminate.  To  say  that  he 
buj^s  and  sells  articles  of  food  and  drink 
is  only  true  in  a  limited  sense.  Such  ar- 
ticles are  not  bought  to  be  sold,  nor  are 
they  sold  again,  as  in  ordinary  commerce. 
They  are  bought  to  be  served  as  food  or 
drink,  and  the  price  includes  rent,  service, 
heat,  light,  etc.  To  say  that  such  a  busi- 
ness is  that  of  a  'trader'  or  a  'mercantile 
purstiit.'  is  giving  those  words  an  elas- 
ticity of  meaning  not  according  to  com- 
mon usage."  The  keeping  of  a  bar,  cigar 
and  news  stand  are  obviously  but  or- 
dinary incidents  to  the  main  business 
when  conducted  within  the  inn,  and 
primarily  for  the  convenience  of  guests. 
The  maintenance  of  a  livery  and  of  small 
pleasure  boats  for  the  accommodation  of 
guests  may  also  be  accepted  as  merely  in- 
cidental to  that  class  of  hotels  called  re- 
sorts. Toxawaj-  Hotel  Co.  v.  Smathers 
&  Co..  216  U.  S.  439,  446,  54  L.  Ed.  558,  30 


861 


338 


MILITARY  LAW. 


Vol.  VIII. 


MERGER. — See  the  title  Merger,  vol.  8,  p.  339,  and  references  there  given. 
In  addition,  see  post,  Res  Adjudicata. 
METES  AND  BOUNDS.— See  ante,  Boundaries,  p.  206. 
MILITARY  COURTS.— See  post,  Military  Law. 


MILITARY  LAW. 

V.  Military  Tribunals,  863. 

B.  Courts-Martial,  863. 

5.  Jurisdiction,  863. 

d.  Over  Offenses,  863. 

(3)   Jurisdiction   Not   Exclusive   over   Civil   Offenses   Com- 
mitted  by   Soldiers,   863. 

6.  Procedure,  863. 

d.  Evidence,  863. 

7.  Judgment  and  Sentence.  863. 

a.  Requisites    for   Validity,   863. 

e.  Mitigation  and  Commutation  of   Sentence,  863. 

8.  Review,   863. 

D.  Provisional  Courts   for   Trial  of   Civil   Cases,  863. 
1.  Establishment  and  Duration,  863. 
2y2.  Jurisdiction,  864. 

4.  Conclusiveness  of  Judgment  on  Collateral  Attack,  864. 

CROSS  REFERENCES. 

See  the  title  Military  Law,  vol.  8,  p.  342,  and  references  there  given. 


S.  Ct.  263.  See  ante,  BANKRUPTCY,  p. 
168. 

A  corporation  engaged  in  conducting 
hotels  at  various  points  is  not  engaged 
principally  in  trading  or  mercantile  pur- 
suits, so  as  to  be  liable  to  an  involuntary 
adjudication  in  bankruptcy  under  the 
Bankrupt  Act  of  July  1,  1898  (30  Stat,  at 
L.  544,  chap.  541,  U.  S.  Comp.  Stat.  1901, 
p.  3418),  §  4,  as  amended  by  the  Act  of 
February  5,  1903  (32  Stat,  at  L.  797,  chap. 
487,  U.  S.  Comp.  Stat.  Supp.  1909,  p. 
1309),  although  it  also  maintains  two 
country  stores,  largely  as  an  incident  to 
the  location  of  its  hotels  in  a  thinly  set- 
tled mountainous  region.  Toxaway  Hotel 
Co.  V.  Smathers  &  Co.,  216  U.  S.  439,  54 
L.    Ed.    55S,    30    S.    Ct.    263. 

"Congress  having  never  by  express  leg- 
islation declared  an  innkeeper  a  'trader,' 
it  must  be  presumed  to  have  used  the 
word  in  its  well-understood  public  and 
judicial  meaning,  and  cases  based  upon  a 
parliamentary  meaning  are  not  in  point. 
See  Hall  v.  Cooley,  Fed.  Case  No.  5,928, 
and  In  re  Cote,  Fed.  Case  No.  3,267,  where 
Judge  Lowell,  referring  to  the  declaratory 
act  giving  a  list  of  occupations  which 
should  constitute  trading,  said  that  con- 
gress 'had  not  defined  a  tradesman  and 
the  question  was  therefore  addressed  to 
the  common  usage  of  this  country  and  to 
the    judge's    knowledge    of    his    own    lan- 


guage.' He  defined  a  tradesman  'as  sub- 
stantially the  same  as  shopkeeper.'  In 
the  case  styled  In  re  Smith,  Fed.  Case  No. 
12,981,  the  same  learned  judge  adopted 
the  definition  of  Bouvier,  who  defines  a 
tradesman  as  'one  who  makes  it  his  busi- 
ness to  buy  merchandise  or  goods  or 
chattels  to  sell  again  for  the  purpose  of 
making  a  profit.'  If  the  occupation  of 
innkeeping  is  not  'trading,'  it  is  not  a 
'mercantile  pursuit,'  for  little  more  than 
a  broader  significance  can  be  given  to 
that  term  than  to  'trading.'  It  is,  in  fact, 
trading  in  the  larger  sense.  Mercantile 
is  defined  'as  having  to  do  with  trade  or 
commerce;  of  or  pertaining  to  merchants, 
or  the  traffic  carried  on  by  merchants' 
(Century  Dictionary).  To  be  principally 
engaged  in  a  mercantile  pursuit  one  must 
be  carrying  on  commerce  in  some  of  its 
branches.  See  In  re  Cameron  Insurance 
Co.,  96  Fed.  Rep.  756;  Loveland  on  Bank- 
ruptcy, §  48;  In  re  New  York  &  W.  Water 
Co.,  98  Fed.  Rep.  711.  The  conclusion  we 
reach  accords  with  that  announced  by  the 
sixth  circuit  court  of  appeals  in  In  re 
United  States  Hotel  Co.,  134  Fed.  Rep. 
225,  where  the  matter  is  considered  and 
the  cases  bearing  upon  the  subject  re- 
viewed." Toxaway  Hotel  Co.  v.  Smath- 
ers &  Co.,  216  U.  S.  439,  447,  54  L.  Ed. 
558,    30   S.    Ct.    263. 


862 


Vol.  VIII.  MILITARY  LAW.  350-356 

V.  Military  Tribunals. 

B.  Courts -Martial — 5.  Jurisdiction — d.  Over  Offenses — (3)  Jurisdiction 
Xot  Bxchisirc  over  Civil  Offenses  Committed  by  Soldiers. — The  sixty-second 
article  of  war  does  not  vest,  nor  purport  to  vest,  exclusive  jurisdiction  in  courts- 
martial,  and  civil  courts  have  concurrent  jurisdiction  over  all  offenses  com- 
mitted by  a  military  officer  which  may  be  punished  by  a  court-martial  under  the 
provisions  of  that  article.'*"'^ 

6.  PROCEDURE^d.  Evidence. — Proceedings  of  Courts  of  Inquiry. — A  court- 
martial  convened  at  a  naval  officer's  request  to  investigate  charges  against  him 
is  not  without  jurisdiction  because  he  was  required,  as  a  condition  precedent, 
to  waive  protection  of  Rev.  St.  U.  S.,  §  1624,  art.  60  (U.  S.  Comp.  St.  1901,  p. 
1119),  by  consenting  to  admission  in  evidence  of  the  record  of  testimony  intro- 
duced before  a  prior  court  of  inquiry,  with  right  to  call  additional  witnesses. ^"^^ 

7.  Judgment  and  Sentence — a.  Requisites  for  J^'alidity. — AMiere  the  court 
is  of  the  minimum  number,  the  incompetency  of  one  member  renders  the  pro- 
ceedings void  ab  initio. ^^'^ 

e.  Mitigation  and  Comuiiitation  of  Sentence. — Reducing  sentence  of  a  court- 
martial,  dismissing  a  naval  officer  from  service,  to  suspension  of  five  years  on 
half  sea  pay.  with  a  reduction  in  rank  to  the  foot  of  the  list  of  his  grade,  is  a 
mitigation  of  sentence,  within  the  provision  of  Rev.  St.  U.  S.,  §  1624,  art.  54  (U. 
S.  Comp.  St.  1901,  p.  1119),  that  every  officer  authorized  to  convene  a  general 
court-martial  shall  have  power,  on  revision  of  its  proceedings,  to  "remit  or 
mitigate,"'  but  not  to  "commute,"  the  sentence  of  any  such  court  which  he  is 
authorized  to  approve  and  confirm.'^*^''  Quaere,  whether  such  statute  applies  to 
the  president   of  the   United   States.^^^ 

8.  Review. — In  General. — See  note  67. 

D.  Provisional  Courts  for  Trial  of  Civil  Cases — 1.  Establishment  and 
Duration. — The  authority  of  a  military  government  during  the  period  between 
the  cession  and  the  action  of  congress,  like  the  authority  of  the  same  govern- 
ment before  the  cession,  is  of  large,  though  it  may  not  be  of  unlimited,  extent, 
and  includes  the  authority  to  establish  courts  of  justice,  which  are  so  essential 
a  part  of  any  government. ^^^^ 

350-44a.    Jurisdiction    of    courts-martial  Civil  courts  can  not  review  proceedings 

not  exclusive. — Franklin  i\  United   States,  and    sentences    of     courts-martial,     where 

216  U.  S.  559,  568,  54  L.  Ed.  615.  30  S.  Ct.  they   are    legally    organized    and   have   ju- 

434.  risdiction  of  the  offense  and  of  the  person 

351-50a.     Proceedings   of   court    of     in-  of  accused,  and  liave  complied  with  statu- 

quiry. — ^luUan    ;'.    United    States.    212    U.  tor}^    requirements    governing     their    pro- 

S.  516,   519,  53   L.   Ed.  632.  29   S.   Ct.  330.  ceedings.    Judgment  (1907),  42  Ct.  CI.  157, 

351-51a.     Judgment  —  Validity. —  (1906')  affirmed.      Mullan    v.    United    States,     212 

Brown   r.    United    States.    41    Ct.    CI.    275.  U.   S.  516,  53   L.   Ed.  632.  29  S.  Ct.  330. 

judgment  affirmed  United  States  v.  Brown,  356-85a.    Establishment  and  duration. — 

206    U.    S.    240.    51    L.    Ed.    1046.    27    S.    Ct,  Santiago  r.    Xogueras,   214   U.    S.   260,   266, 

620.  53   L.   Ed.   9S9,  29   S.   Ct.   60S. 

353-66a.    Mitigation  of  sentence. — Judg-  Provisional  court  for  Porto  Rico. — The 

ments    (1907).    42    Ct.    CI..    157.      affirmed.  creation  of  the  provisional  court  for  Porto 

Mullan  V.  United  States.  212  U.  S.  516,  53  Rico   between   April   11,    1899,   when   rati- 

L.    Ed.    632.    29    S.    Ct.    330.  fications    of    the    treaty   by   which    it   was 

363-66b.     Quasry — Application    to  presi-  ceded  were  exchanged,  and  May  1,   1900, 

dent. — ;Mullan  v.  United   States.  212   U.   S.  when    Act   April    12,    1900,    31    Stat.    77,    c. 

516.  521.  53  L.  Ed.  632.  29  S.  Ct.  330.  191,  establishing  a  civil  government,  took 

353-67.     Appellate    jurisdiction    of    civil  effect,   was    within   scope    of   the    military 

court. — The    decision    of   a   militarj-   tribu-  power,   acting   by   authority   of   the   presi- 

nal  acting  within   the   scope   of  its   lawful  dent  as  commander  in  chief,  though  peace 

powers  can  not  be  reviewed  or  set  aside  then  prevailed,  and  courts  established  un- 

by  the   courts.     Reaves  v.   Ainsworth,  219  der    Spain    were    open.      Santiago    v.    No- 

U.   S.  296.  55  L.  Ed.  225.  31   S.  Ct.  230,  af-  gueras.  214  U.  S.  260.  53  L.  Ed.  989,  29  S. 

firming   judgment    (1906),    28   App.    D.    C.  Ct.  608. 

157.  "B^^    ihe    ratifications    of    the    treaty    of 

863 


357-363 


MINERAL. 


Vol.  VIII. 


2y2.  Jurisdiction. — A  controversy  between  a  Porto  Rican  and  a  Spaniard 
furnishes  diversity  of  citizenship  which  the  order  estabHshing  the  provisional 
court   for   Porto   Rico  made   jurisdictional. ^^^ 

4.  CoNCLUsivENKss  OF  JUDGMENT  OK  COLLATERAL  ATTACK. — Where  the  United 
States  provisional  court  for  Porto  Rico  had  jurisdiction  of  the  case  and  the 
parties,  its  decree  is  not  open  to  collateral  attack  on  the  theory  that  it  lost  its 
jurisdiction  by  disregarding  certain  provisions  of  the  code  of  civil  procedure 
which  were  binding  upon  it.*^^^ 

MILITARY  OFFICERS.— See  ante,  Army  and  Navy,  p.  150. 
MILITARY  TRIBUNALS.— See  ante,  Military  Law,  p.  862. 
MILITIA. — See  the  title  [Militia,  vol.  8,  p.  358,  and  references  there  given. 
MILLS  AND  MILLDAMS.— See  the  title  Mills  and  Milldams,  vol.  8,  p. 
362.  and  references  there  given. 
MINERAL.— See  note  1. 


peace,  Porto  Rico  ceased  to  be  subject  to 
the  crown  of  Spain  and  became  subject 
to  the  legislative  power  of  congress.  But 
the  civil  government  of  the  United  States 
can  not  extend  immediately  and  of  its 
own  force  over  conquered  and  ceded  ter- 
ritory. Theoretically,  congress  might  pre- 
pare and  enact  a  scheme  of  civil  govern- 
ment to  take  effect  immediately  upon  the 
cession,  but,  practicallj^  there  always  have 
been  delays  and  always  will  be.  Time  is 
required  for  a  study  of  the  situation  and 
for  the  maturing  and  enacting  of  an  ade- 
quate scheme  of  civil  government.  In  the 
meantime,  pending  the  action  of  congress, 
there  is  no  civil  power  under  our  system 
of  government,  not  even  that  of  the  presi- 
dent as  civil  executive,  which  can  take  the 
place  of  the  government  which  has  ceased 
to  exist  by  the  cession.  Is  it  possible 
that,  under  such  circumstances,  there  must 
be  an  interregnum?  We  think  clearly  not. 
The  authority  to  govern  such  ceded  terri- 
tory is  found  ui  the  laws  applicable  to 
conquest  and  cession."  Santiago  v. 
Xogueras,  214  U.  S.  260,  265,  53  L.  Ed. 
989,   29    S.    Ct.    608. 

In  the  case  of  Cross  v.  Harrison,  16 
How.  1'64,  14  L.  Ed.  889,  a  situation  of  this 
kind  was  referred  to  in  the  opinion  of 
the  court,  where  it  said:  "It  (the  military 
authority)  was  the  government  when  the 
territory  vi^as  ceded  as  a  conquest,  and  it 
did  not  cease,  as  a  matter  of  course,  or  as 
a  necessary  consequence  of  the  restora- 
tion of  peace.  The  president  might  have 
dissolved  it  by  withdrawing  the  army  and 
navy  officers  who  administered  it,  but  he 
did  not  do  so.  Congress  could  have  put 
an  end  to  it,  but  that  was  not  done.  The 
right  inference  from  the  inaction  of  both 
is.  that  it  was  meant  to  be  continued  un- 
til it  had  been  legislatively  changed.  Xo 
presumption  of  a  contrary  intention  can 
be  made.  Whatever  may  have  been  the 
causes  of  delay,  it  must  be  presumed  that 
the  delay  was  consistent  with  the  true 
policy     of     the      government."      And    see 


Leitensdorfer  v.  Webb,  20  How.  176,  15 
L.  Ed.  891,  and  opinion  of  Mr.  Justice 
Gray  in  Downes  v.  Bidwell,  182  U.  S.  244, 
345,  45  L.  Ed.  1088;  Santiago  v.  Xogueras, 
214  U.  S.  260,  265.  53  L.  Ed.  989,  29  S.  Ct. 
,608. 

357-88a.  Jurisdiction  of  provisional  court 
for  Porto  Rico. — Santiago  v.  Xogueras, 
214  U.   S.  260,  53   L.   Ed.  989,  29  S.   Ct.  608. 

357-91a.  Collateral  attack  on  jurisdic- 
tion.— Santiago  v.  X'ogueras,  214  U.  S. 
260,  53  L.  Ed.  989,  29  S.  Ct.  608.  See  ante, 
JUDGMEXTS  AXD   DECREES,  p.  807. 

363-1.  Mineral  lands. — The  authority  to 
cut  timber  from  a  public  domain  under 
the  Act  of  June  3,  1878,  upon  "lands  be- 
ing mineral,  and  not  subject  to  entry  un- 
der existing  laws  of  the  United  States, 
except  from  mineral  entry,"  does  not  ex- 
tend to  land  adjacent  to  lands  valuable  for 
mineral  purposes,  but  only  includes  lands 
known  to  be  themselves  valuable  for 
minerals,  which  are  the  only  lands  ex- 
cliiQed  by  the  federal  statutes  from  any 
but  mineral  entry.  United  States  v.  Plow- 
man, 216  U.  S.  372,  54  L.  Ed.  523,  30  S. 
Ct.  299.     See  post,  PUBLIC  LAXDS. 

"Mineral  surveyors  are  appointed  by 
the  surveyor  general  under  Rev.  Stat., 
§  2334,  and  their  field  of  action  is  con- 
fined to  the  survej'ing  of  mining  claims 
and  to  matters  incident  thereto.  They  act 
only  at  the  solicitation  of  owners  of  sucli 
claims,  and  are  paid  by  the  owners,  not 
by  the  government;  but  their  charges 
must  be  within  the  maximum  fixed  by 
the  commissioner  of  the  general  land  of- 
fice, and  their  work  must  be  done  in  con- 
formit}'-  to  regulations  prescribed  by  that 
oflicer.  They  are  required  to  take,  an 
oath,  and  to  execute  a  bond  to  the  United 
States,  as  are  many  public  officers. 
Within  the  limits  of  their  authority  they 
act  in  the  stead  of  the  surveyor  general 
and  under  his  direction,  and  in  that  sense 
are  his  deputies.  The  work  which  they 
do  is  the  work  of  the  government,  and 
the   surveys  which  they  make  are  its  sur- 


864 


A'ol.  MIL  MIXES  AXD  MIXERALS.  363 

MINERAL  LANDS.— See  post,  Mines  and  Minerals. 
MINERALS. — See  post,  Mines  and  Minerals. 


MINES  AND  MINERALS. 

III.  Discovery  and  Location  of  Mines  and  Mining  Claims,  866. 

B.  Discovery  and  Appropriation,  866. 

C.  ^^'ho  May  Locate  Claims,  866. 

2^.  Officer,  etc.,  of  General  Land  Office,  866. 

3.  Deputy  Mineral  Surveyor,  866. 

E.  Proceedings  Incident  to  Location,  866. 

1.  In  General,  866. 

2.  Local  Laws  and  Regulations,  866. 

4.  Description  and  Notice,  867. 

5.  Amount  of  Land  Which  ]\Iav  Be  Included,  867. 

F.  \'alidity  and  Priority.  868. 

4.  Rights   of    Prior   Appropriators,   868. 

G.  Forfeiture  and  Abandonment.  868. 
H.  Relocation,  869. 

I.  Necessity  for  Adversing  Claim,  870. 
K.  Repayment  of  Purchase  Price,  870. 

IV.  Mining  Claims  as  Property,  870. 

A.  In  General,  870. 

B.  Sale  and  Transfer.  870. 

V.  Rights  as  Affected  by  Surface  Boundaries,  87L 

A.  In  General.  871. 

1.  At   Common   Law,    871. 

B.  Right  to  Pursue  \'ein,  871. 

1.  The  General  Rule,  871. 

2.  Limitations   upon  the   Rule,   871. 

e.  Priorities,  871. 

XI.  Right  to  the  Use  of  Timber  on  Mineral  Lands,  871. 
XIV.  Taxation,  871. 
XVI.  Procedure,  872. 

C.  Recovery  of  Mining  Claims,  872. 

veys.  The  right  performance  of  their  du-  The  location  of  a  placer  mining  claim 
ties  is  of  real  concern,  not  merely  to  by  a  United  States  mineral  surveyor  is 
tiiose  at  whose  solicitation  they  act,  but  within  the  prohibition  of  U.  S.  Rev.  Stat., 
also  to  the  owners  of  adjacent  and  con-  §  452,  U.  S.  Comp.  Stat.  1901,  p.  2.57,  against 
flicting  claims  and  to  the  government.  Of  the  direct  or  indirect  purchase  by  officers, 
the  representatives  of  the  governm.ent  clerks  and  employees  in  the  general  land 
who  have  to  do  with  the  proceedings  inci-  office  of  any  of  the  public  land.  Tlie  pro- 
dent  to  applications  for  patents  to  mining  hibition  in  §  4.52  is  addressed  not  merely 
claims,  they  alone  come  in  contact  with  to  the  officers  of  the  general  land  office, 
the  land  itself,  and  have  an  opportunity  or  to  its  officers  and  clerks,  l)ut  to  its 
to  observe  its  situation  and  character,  "officers,  clerks,  and  employees."  These 
and  the  extent  and  nature  of  the  work  words,  taken  collectively,  are  very  com- 
done  and  improvements  made  thereon;  prehensive,  and  easily  embrace  all  per- 
and  it  is  upon  their  reports  that  the  sur-  sons  holding  positions  under  that  office 
veyor  general  makes  the  certificate  re-  and  participating  in  the  work  assigned  to 
quired  by  Rev.  Stat.,  §  2325,  which  is  a  it,  as  is  the  case  with  mineral  surveyors, 
prerequisite  to  the  issuance  of  a  parent.''  Waskey  v.  Hammer,  223  U.  S.  85,  56  L. 
Waskey  v.  Hammer,  223  U.  S.  85,  56  L.  Ed.  359,  32  S.  Ct.  187.  See  post,  PUB- 
Ed.  359,  32  S.  Ct.  187.  See  post,  MINES  LIC  LAXDS. 
AXD   MIXERALS:   PUBLIC  LAXDS. 

12  U   S   Enc — 55  865 


372-373  MINES  AND  MINERALS.  Vol.  VIII. 

1.  In  General,  872. 
D.  Action  to  Quiet  Title,  872. 

XVIII.  Offenses  in  Connection  with  Disposal  of  Mineral  Lands,  S72. 

A.  Conspiracy  to  Defraud  the  Government,  872. 

B.  Making  Fraudulent  Papers  in  Connection  with  Entry,  872. 

CROSS  REFERENCES. 

See  the  title  Mines  and  Minerals,  vol.  8,  p.  364,  and  references  there  given. 

III.  Discovery  and  Location  of  Mines  and  Mining  Claims. 

B.  Discovery  and  Appropriation. — See  note  20.  Discovery  is  the  all- 
important  fact  upon  which  title  to  mines  depends. ^^^  A  discovery  without  the 
limits  of  the  claim,  no  matter  what  its  proximity,  does  not  suffice. ^o"  The  ex- 
clusion of  that  part  of  a  location  which  embraces  the  place  of  the  only  discovery 
defeats  the  location  and  leaves  the  lands  therein  "open  to  exploration  and  sub- 
ject to  claim  for  new  discoveries. "^'-^'^  Although  a  discovery  subsequent  to  lo- 
cation is  valid,  where  no  adverse  claims  intervene,  where  at  the  time  of  such 
subsequent  discovery,  the  locator  has  become  disqualified  by  reason  of  his  hav- 
ing become  a  United  State?  mineral  surveyor,  his  claim  is  void.^*^"^ 

C.  Who  May  Locate  Claims — 2^.  Officer,  etc.,  of  the  General  Land 
Office. — The  location  of  a  placer  mining  claim,  contrary  to  U.  S.  Rev.  Stat., 
§  452,  U.  S.  Comp.  Stat.  1901,  p.  257,  prohibiting  officers,  clerks,  and  employ- 
ees in  the  general  land  office,  under  penalty  of  dismissal,  from  directly  or  in- 
directly purchasing  or  becoming  interested  in  the  purchase  of  the  public  land,  is 
void,  and  not  merely  voidable  at  the  instance  of  the  government.22a 

3.    Deputy  Mineral  Surveyor. — See  note  23. 

E.  Proceedings  Incident  to  Location — 1.  In  General. — Claims  in  Phil- 
ippine Islands. — The  possession  and  working  of  a  mining  claim  in  the  Phil- 
ippine Islands  for  the  time  requisite,  under  the  Act  of  July  1,  1902  (32  Stat. 
703,  c.  1369),  §  45,  in  order  to  establish  a  right  to  patent,  need  not  have  been 
under  a  claim  of  title.^^'^ 

2.  Local  Laws  and  Regulations. — See  note  31. 

372-20.    Subsequent   discovery.— Waskey  223  U.   S.  85.  91.  56  L.  Ed.  359,  32  S.  Ct. 

V.  Hammer.  223  U.  S.  85,  90,  56  L.  Ed.  359,  187. 

32   S.   Ct.   187.  372-22a.   Employee  of  land  office. — Was- 

372-20a.    Source    of     title. — Lawson     v.  key  7'.   Hammer,  223   U.   S.   85,   56  L.   Ed. 

United    States    Min.    Co.,   207   U.    S.    1,   13,  359,  32  S.  Ct.  187. 

52  L.  Ed.  65.  28  S.  Ct.  15.  372-23.    Deputy  surveyor. — The  location 

372-20b.    Discovery  to  be  within  limits  of    a    placer    mining    claim    by    a    United 

of  claim. — Waskey  z\  Hammer,   223  U.   S.  States  mineral  surveyor  is  within  the  pro- 

85,   90,   56   L.    Ed.   359,   32    S.   Ct.    187.  hibition   of  U.    S.    Rev.    Stat.,   §   452,   U.    S. 

372-20C.  Exclusion  from  claim  of  place  of  Comp.    Stat.   1901,   p.   257,   against  the   di- 

discovery. — Waskey    z\    Hammer,    223    U.  rect  or  indirect  purchase  by  officers,  clerks, 

S.   85,  91,  56  L.   Ed.  359,  32   S.   Ct.  187.  and   employees   in   the   general   land   office 

A   placer   mining   claim   which   nninten-  of  any  of  the  public  land.  Waskey  v.  Ham- 

tionally    included    a    trifle    more    than    the  mer,  223  U.  S.  85,  56  L.  Ed.  359,  32  S.  Ct. 

maximum    permitted    area    is     invalidated  187. 

under  U.  S.  Rev.  Stat.,  §§  2320,  2329,  U.  S.  373-30a.     Claims    in    Philippine    Islands. 

Comp.    Stat.    1901,   pp.   1424,   1432,   making  — Reavis   v.    Fianza,    215    U.    S.    16,    54    L. 

the  discovery  of  mineral  within  the  limits  Ed.  72,  30  S.  Ct.  1. 

of  the  claim  a  prerequisite  to  the  location,  373-31.  Local  regulations. — The  require- 
when,  h}^  the  readjustment  of  its  lines  so  ment  of  Arizona  Rev.  Stat.,  Par.  3241, 
as  to  exclude  the  excess,  the  point  or  that  tlie  location  notice  of  relocation  of 
place  of  the  only  prior  mineral  discovery  a  mining  claim  forfeited  for  failure  to  do 
was  left  outside  the  area  included  by  the  the  necessary  assessment  work  shall  state 
readjusted  lines.  Waskey  7'.  Hammer,  that  the  claim  was  located  as  forfeited  or 
223  U.  S.  85,  56  L.  Ed.  359,  32  S.  Ct.  187.  abandoned    property,     is     not    in    conflict 

372-20d.     Subsequent    discovery    where  with  U.  S.  Rev.  Stat.,  §  2324,  U.  S.  Comp. 

locator  disqualified. — Waskey  v.  Hammer,  Stat.   1901,   p.   1427.   permitting  miners   to 

866 


Vol.  Mil. 


MINES  AND  MINERALS. 


373-376 


Effect  of  Acceptance  of  Location  Notices  Given  before  Act  of  1866. 

— Acceptance  by  the  government  of  lode  mining  location  notices  given  before 
the  Act  of  July  26,  1866,  c.  262,  14  Stat.  251,  recognizing  the  rights  of  locators 
who  have  proceeded  in  conformity  to  local  customs  or  rules,  and  the  issue  of 
patents  thereon,  is  a  recognition  by  the  land  department  of  the  conformity  of 
the  proceedings  to  the  local  rules  and  customs  of  the  district,  and  such  ruling 
is  not  open  to  challenge  by  third  parties  claiming  rights  arising  subsequently 
to  the  notices.2^'^ 

4.  Description  and  Notice. — The  object  of  posting  the  preliminary  notice 
of  the  claim  is  to  make  known  the  purpose  of  the  discoverer  to  claim  title  to 
the  extent  described  and  to  warn  others  of  the  prior  appropriation.^^'^ 

Notice  on  Relocation  of  Abandoned  Claims. — See  post,  "Relocation,"' 
III,  H. 

5.  Amount  of  Land  Which  ]\Iay  Be;  Included. — Coal  Lands. — See  note  43. 


make  regulations  as  to  location  notices 
not  in  conflict  with  the  laws  of  the  United 
States  or  of  the  state  or  territory  in  which 
the  mining  district  is  situated,  subject  to 
the  requirement  that  not  less  than  $100 
worth  of  work  shall  be  performed  or 
improvements  made  each  year,  and  that, 
upon  a  failure  to  comply  with  such  con- 
ditions, the  claim  or  mine  on  which  such 
failure  occur  shall  be  "open  to  relocation 
in  the  same  manner  as  if  no  location  of 
the  same  had  ever  been  made."  Clason 
V.  Matko,  223  U.  S.  646,  56  L.  Ed.  588,  32 
S.  Ct.  392;  Yosemite  Gold  Min.,  etc.,  Co. 
V.  Emerson,  208  U.  S.  25,  29,  52  L.  Ed.  374, 
28  S.  Ct.  196. 

373-31a.  Effect  of  acceptance  of  no- 
tice, etc. — -Judgment,  United  States  ]\Iin. 
Co.  v.  Lawson  (1904)  134  F.  769,  67  C.  C. 
A.  587.  affirmed.  Lawson  v.  United  States 
Min.  Co.,  207  U.  S.  1,  52  L.  Ed.  65,  28  S. 
Ct.  15. 

375-39a.  Object  of  preliminary  notice. 
— Lindlev  on  Mines  (2d  Ed.),  §  350.  Yo- 
semite Gold  Min.,  etc.,  Co.  v.  Emerson, 
208  U.  S.  25.  31.  53  L.  Ed.  374,  28  S.  Ct.  196. 

Effect  of  failure  to  comply  with  rule  as 
to  one  having  full  knowledge  of  location. 
— One  who  attempts  to  relocate  a  mining 
claim  on  the  theory  that  the  required 
amount  of  annual  assessment  work  has 
not  been  done,  with  full  knowledge  of 
the  location  and  boundaries  of  the  claim, 
can  not  assert  a  forfeiture  of  title  for 
failure,  on  the  part  of  the  original  locators, 
to  comply  with  the  mining  rules  respect- 
ing notices  of  location.  Judgment.  Emer- 
son V.  Yosemite  Gold  Min.  &  Mill.  Co. 
(1906)  85  P.  122,  149  Cal.  50,  affirmed. 
Yosemite  Gold  Min.,  etc.,  Co.  v.  Emerson, 
208  U.   S.  25,  52  L.   Ed.  374,  28   S.   Ct.  196. 

376-43.  Entry  for  another's  benefit. — An 
entry  of  coal  lands,  made  avowedly  for 
the  sole  use  and  benefit  of  the  entryman, 
but  which,  on  a  contested  hearing,  was 
shown  to  have  been  made  at  the  instance 
of  a  corporation,  and  with  its  mone}''  and 
for  its  benefit,  can  not,  for  this  reason, 
be  deemed  to  have  been  fraudulently  pro- 
cured, in  contravention  of  U.  S.  Rev.  Stat., 


§§  2347-2352,  U.  S.  Comp.  Stat.  1901,  pp. 
1440,  1441,  which  forbids  the  acquisition  of 
such  lands  in  excess  of  the  quantities  pre- 
scribed, where  there  is  nothing  to  show 
any  efifort  through  this  or  like  entries  to 
evade  the  restrictions  in  respect  of  quan- 
tity. United  States  v.  Colorado  Anthracite 
Co.,  225  U.  S.  219,  56  L-.Ed.  1063,  32  S.  Ct. 
617. 

Entry  for  disqualified  principal.  —  The 
prohibition  against  more  than  one  entry 
of  coal  lands  by  the  same  person,  which 
is  made  by  Rev.  St.  U.  S.,  §  2350  (U.  S. 
Comp.  St.  1901,  p.  1441),  prohibits  a 
qualified  person  from  entering  such  lands 
apparently  for  himself,  but  in  fact  as  the 
agent  for  a  person  who  is  himself  dis- 
qualified because  he  has  already  purchased 
the  full  quantity  permitted  by  law.  Or- 
der (D.  C.  1907),  157  F.  396.  reversed. 
United  States  v.  Keitel,  211  U.  S.  370. 
53  L.  Ed.  230.  29  S.  Ct.  123;  United  States 
V.  Herr,  211  U.  S.  404,  53  L.  Ed.  251,  29 
S.  Ct.  134;  S.  C,  211  U.  S.  406,  53  L.  Ed. 
252,  29  S.  Ct.  135. 

Persons  entitled,  under  Rev.  St.  U.  S.. 
§§  2348,  2349  (U.  S.  Comp.  St.  1901,  p. 
1440),  to  a  preferential  right  of  entry  of 
coal  lands,  are  prevented  by  §  2350  (page 
1441),  prohibiting  the  making  of  more 
than  one  entry  by  the  same  person,  from 
entering  such  lands  apparently  for  them- 
selves, but  in  fact  as  agents  for  a  person 
who  is  himself  disqualified  because  he  has 
already  purchased  the  full  quantity  per- 
mitted by  law.  United  States  f.  Forres- 
ter, 211  U.  S.  399,  53  L.  Ed.  245,  29  S.  Ct. 
132;  United  States  v.  Herr,  211  U.  S.  404, 
53  L.  Ed.  251,  29  S.  Ct.  134. 

The  same  rule  applies  as  to  entries  by 
agents  for  corporations  who  are  disquali- 
fied. United  States  v.  Munday,  222  U. 
S.  175,  56  L.  Ed.  149.  32  S.  Ct.  53,  revers- 
ing judgment   (C.   C),  186  F    375. 

"The  statute  imposes  no  limitations  on 
the  right  of  the  purchaser  who  has  ac- 
quired coal  land  from  the  United  States 
to  sell  the  same  after  he  has  become  the 
owner  of  the  land.  The  absence,  how- 
ever,   of  the    limitation    on    the   power    to 


867 


376-381 


MINES  AND  MINERALS. 


Vol.  VIII. 


Thie  policy  of  the  restriction  in  §  2347  of  the  Revised  Statutes  in  refer- 
ence to  entry  in  coal  lands  was  to  prevent  a  monopolization  of  such  coal  lands 
by  securing  to  every  citizen  the  right  to  obtain  for  himself  one  tract,  not  ex- 
ceeding one  hundred  and  sixty  acres,  of  such  coal  land.^-^^ 

Mineral  Lands  in  the  Philippines. — The  limitation  of  §  22,  of  Philippine 
Act  of  July  1,  1902,  as  to  size  of  mining  claims,  applies  only  to  claims  located 
after  the  passage  of  the   act.-*-"" 

F.  Validity  and  Priority — 4.  Rights  of  Prior  Appropriators. — See  note  58. 

Philippine  Mining  Claims  Held  in  Possession  by  Natives  for  Re- 
quired Term. — An  adverse  claim  which  will  defeat  the  right  to  a  patent  under 
the  Act  of  July  1,  1902  (32  Stat.  703,  c.  1369),  §  45,  when  natives  and  their  an- 
cestors have  held  possession  and  worked  mining  claims  in  the  Philippine  Islands 
for  the  period  required,  can  not  be  based  upon  entry  and  staking  of  claim  and 
filing  notice  of  location,  where  such  possession  was  continuous  down  to  the 
bringing  of  suit  to  restrain  the  person  relying  upon  such  acts  as  amounting  to 
an  adverse  claim  from  setting  up  title  or  interfering  with  the  claims. ^^'^ 

G.  Forfeiture  and  Abandonment. — See  note  62. 

Distinctions. — There  may  be  a  distinction  between  the  abandonment  of  a 
claim  and  its  forfeiture,  but  no  distinction  was  intended  under  §  3241,  Rev. 
Stat.,  Arizona,  providing  for  "the  relocation  of  forfeited  or  abandoned  lode 
claims."*'-^ 


sell  after  acquisition  affords  no  ground 
for  saying  that  the  express  prohibition 
of  the  statute  against  more  than  one  en- 
try by  the  same  person  should  not  be  in- 
forced  according  to  its  plain  meaning. 
This  clearly  follows,  since  the  right  to 
sell  that  which  one  has  lawfully  acquired 
neither  directly  or  indirectly  implies  the 
authority  to  unlawfully  acquire  in  viola- 
tion of  an  express  prohibition."  United 
States  V.  Keitel,  211  U.  S.  370,  389,  53  L. 
Ed.    230,    29    S.    Ct.    123. 

"It  is  a  inisconception  to  assume  that 
there  is  any  real  identity  between  a  pui-- 
chase  made  by  a  qualified  person  in  his 
own  name  and  for  himself  with  a  pur- 
chase made  by  such  person  ostensibly  for 
himself  but  really  as  the  agent  of  a  dis- 
qualified person.  In  the  one  case  the  per- 
son securing  coal  land  from  the  United 
States  for  himself  is  free  to  dispose  of 
the  land  after  acquisition  as  he  may  deem 
best  for  his  interest  and  for  the  develop- 
ment of  the  property  acquired.  In  the 
other  case  the  ostensible  purchaser  ac- 
quires with  no  dominion  or  control  over 
the  property,  with  no  power  to  deal  with 
it  free  from  the  control  of  the  disqualified 
person  for  whose  benefit  the  purchase  was 
made."  United  States  v.  Keitel,  211  U. 
S.  370,  390,  .53   L.   Ed.  230,  29   S.   Ct.  123. 

Applies  to  unsurveyed  coal  lands  in 
Alaska. — The  restriction  to  one  entry  by 
the  same  person,  made  by  Rev.  St.,  §  2350 
(U.  S.  Comp.  St.  1901,  p.  1441),  governing 
entries  of  coal  lands  under  the  three  pre- 
ceding sections,  which  relate  solely  to 
surveyed  lands,  and  which  were  expressly 
extended  to  Alaska  by  Act  June  6,  1900, 
c.  796,  31  Stat.  658  (U.  S.  Comp.  St.  1901, 
p.    1441),   was   made   applicable    to   entries 


on  unsurveyed  coal  lands  in  Alaska  by  Act 
April  28,  1904,  c.  1772,  33  Stat.  525  (U.  S. 
Comp.  St.  Supp.  1909,  p.  556),  enacted 
solely  to  provide  for  the  sale  of  such 
lands,  and  continuing  in  force  in  Alaska  all 
the  coal  land  laws  of  the  United  States 
not  in  conflict  with  its  provisions,  the 
fact  that  such  statute  imposes  no  restric- 
tions upon  alienation  by  one  who  has 
made  a  lawful  location  not  warranting  a 
different  conclusion,  and  the  words,  "the 
three  preceding  sections,"  found  in  sec- 
tion 2350,  having  no  material  significance, 
but  having  been  necessitated  because  the 
provisions  of  the  original  act  of  March 
3,  1873  (chapter  279,  17  Stat.  607),  when 
carried  into  the  Revised  Statutes,  were 
made  a  part  of  the  general  land  law  em- 
bracing the  sale  of  other  public  lands. 
United  States  v.  Munday.  222  U.  S.  175, 
56   L.    Ed.   149,    32    S.    Ct.   53. 

376-43a.  Policy  of  restriction. — United 
States  V.  Trinidad  Coal,  etc.,  Co.,  137  U. 
S.  160,  169,  34  L.  Ed.  640;  United  States 
V.  Keitel,  211  U.  S.  370,  53  L.  Ed.  230,  29 
S.  Ct.  123;  United  States  v.  Munday,  222 
U.   S.   175,   181,   56   L.   Ed.   149.   32   S.   Ct.   53. 

376-43b.  Mineral  lands  in  the  Philip- 
pines.—Reavis  V.  Fianza,  215  U.  S.  16,  23, 
54   L.    Ed.   72,   30   S.    Ct.   1. 

380-58.  Territory  covered  by  prior  loca- 
tion.—Swanson  V.  Sears,  224  U.  S.  180,  181, 
56    L.    Ed.    721,    32    S.    Ct.    455. 

380-58a.  Philippine  mining  claims. — 
Reavis  v.  Fianza,  215  U.  S.  18.  54  L.  Ed. 
72,   30   S.   Ct.   1. 

381-62.  Failure  to  perform  conditions 
subsequent. — Brac'^'ord  v.  Morrison,  212  U. 
S.   389,  390,   53   L.   Ed.   564,  29   S.   Ct.   349. 

381-62a.  Distinctions. — Clason  v.  Matko, 
223  U.  S.  646,  56  L.  Ed.  588,  32  S.  Ct.  392. 


868 


Vol.  VIII. 


MINES  AND  MINERALS. 


381 


Noncompliance  with  Rules  as  to  Notice. — Quaere,  whether  a  forfeiture 
will  arise  from  a  violation  of  requirements  of  a  local  rule  as  to  notice,  where 
such  rule  did  not  make  non-compliance  a  cause  of  forfeiture.''-*' 

Acquiescence  in  Invalid  Judicial  Sale. — The  acquiescence  by  the  judg- 
ment debtor  in  an  invalid  judicial  sale  of  his  interest  in  a  mining  claim  can 
not  be  regarded  as  an  abandonment  of  the  claim  and  an  election  to  accept  the 
sale  as  a  disposition  of  his  property.*^"' -'^  See  ante.  Estoppel,  p.  553  ;  Iudicial 
Sales,  p.  812. 

Conflicting  Locations. — Evidence  is  admissible  on  behalf  of  the  third  lo- 
cator of  a  lode  mining  claim  which  tends  to  establish  the  existence  of  a  valid 
and  subsisting  location  prior  to  the  location  which  such  third  locator  is  adver- 
tising.*'-'^ 

H.    Relocation. — See  note  64. 

Location  after  Abandonment. — Ground  embraced  in  a  mining  location  may 
become  a  part  of  the  public  domain  so  as  to  be  subject  to  another  location  be- 
fore the  expiration  of  the  statutory  period  for  performing  annual  labor  if,  at 
the  time  when  the  second  location  is  made,  there  has  been  an  actual  abandon- 
ment of  the  claim  by  the  first  locator. '''^'^  And  where  in  such  case  the  right  of 
the  first  locator  has  been  lost  through  failure  to  adverse  the  second  location, 
the  burden  is  on  a  subsequent  locator  to  show  that  the  second  location  is  not 
a  valid  one.*'^'' 

Notice  upon  Location  of  Forfeited  Claims  in  Arizona. — A  notice  of  lo- 
cation of  mining  of  property  forfeited  for  failure  to  do  the  necessary  assess- 
ment work  must  state  that  the  property  has  been  forfeited  or  abandoned,  under 
Ariz.  Rev.  Stat.,  par.  3241,  providing  for  the  "relocation  of  forfeited  or  aban- 
doned lode  claims"  in  one  of  two  specified  methods,  and  that  in  either  case  a 
new  location  monument  shall  be  erected  and  the  location  notice  shall  state  if 
the  whole  or  any  part  of  the  new  location  is  "located  as  abandoned  property," 
or  it  will  be  void."'*'^ 


381-62b.  Noncompliance  with  rules  as 
to  notice. — Yosemite  Gold  Min.,  etc.,  Co. 
c'.  Emerson,  208  U.  S.  25,  30,  52  L.  Ed. 
374,   28   S.   Ct.  196. 

381-62C.  Acquiescence  in  invalid  judicial 
sale. — Judgment  in  Dj'e  v.  Crarv  (N.  M. 
1906),  85  P.  1038,  9  L.  R.  A.  (N.' S.)  1136, 
affirmed.  Crarv  v.  Dye,  208  U.  S.  515,  52 
L.    Ed.    595,    28    S.    Ct.    360. 

381-63a.  Conflicting  locations. — Judg- 
ment in  Lockhart  v.  Farrell  (1906),  86  P. 
1077,  31  Utah  155,  reversed.  Farrell  z'. 
Lockhart,  210  U.  S.  142,  52  L.  Ed.  994.  28 
S.  Ct.  681;  Qualifying:  Eavagnino  v.  Uhlig, 
198  U.  S.  443,  49  L.  Ed.  1119. 

It  is  to  be  observed  that  this  qualifica- 
tion but  permits  a  third  locator  to  offer 
proof  tending  to  establish  the  existence 
of  a  valid  and  subsisting  location  anterior 
to  that  of  the  location  which  is  being  ad- 
versed.  It  does  not,  therefore,  include 
the  conception  that  the  mere  fact  that  a 
senior  location  had  been  made,  and  that 
the  statutory  period  for  performing  the 
annual  labor  had  not  expired  when  the 
second  location  was  made,  would  con- 
clusively establish  that  the  location  was 
a  valid  and  subsisting  location,  preventing 
the  initiation  of  rights  in  the  ground  by 
another   claimant,    if   at   the   time    of   such 


second  location  there  had  been  an  actual 
abandonment  of  the  original  senior  loca- 
tion. Judgment,  Lockhart  z<.  Farrell 
(1906),  86  P.  1077,  31  Utah  155,  reversed. 
Farrell  t'.  Lockhart,  210  U.  S.  142,  52  L. 
Ed.  994,  28   S.   Ct.   681. 

381-64.  Relocation. — An  attempted  lo- 
cation of  a  mining  claim,  based  upon  a 
discovery  within  a  then  valid  and  sub- 
sisting claim,  is  absolutely  void  for  the 
purpose  of  founding  an  adverse  claim,  and 
does  not  attach  upon  the  subsequent  fail- 
ure of  the  first  locator  to  do  the  required 
annual  assessment  work.  Swanson  v. 
Sears,  224  U.  S.  180.  56  L.  Ed.  721,  32  S. 
Ct.  455. 

381-64a.  Relocation  of  abandoned 
claim.— Farrell  7-.  Lockhart,  210  U.  S.  142, 
147,    52    L.    Ed.    994,   28    S.    Ct.    681. 

381-64b.  Burden  of  proof. — Farrell  r. 
Lockhart,  210  U.  S.  142,  52  L.  Ed.  994,  28 
S.   Ct.   681. 

381-64C.  Notice  upon  location  of  for- 
feited claims  in  Arizona. — Clason  z'. 
Matko,  223  U.  S.  646,  56  L.  Ed.  588,  32  S. 
Ct.  392. 

Such  statute  is  not  in  conliict  with  U. 
S.  Rev.  Stat.,  §  2324,  U.  S.  Comp.  Stat.  1901, 
p.  1427.  Clason  z'.  Matko,  223  U.  S.  646. 
655,  56   L.   Ed.  588,  3L   S.  Ct.  392. 


869 


382-383 


MINES  AND  MINERALS. 


Vol.  VIII. 


I.  Necessity  for  Adversing  Claim. — See  note  65. 

Prospective  underground  conflicts  are  not  the  subject  of  adverse  claims.^^^ 
K.  Repayment  of  Purchase  Price. — The  Act  of  June  16,  1880,  §  2,  pro- 
vides that  where  an  entry  has  been  erroneously  allowed  and  is  duly  canceled  the 
purchase  price  shall  be  repaid  to  the  person  who  made  such  entry,  or  his  heirs 
or  assigns. ^"^^ 

IV.  Mining  Claims  as  Property. 

A.  In  General. — See  note  68. 

B.  Sale  and  Transfer. — Conditions. — The  deposit  of  the  net  proceeds 
from  ores  in  a  designated  bank,  to  be  credited  on  the  purchase  price,  as  stipu- 
lated in  a  contract  for  the  sale  of  mines,  under  which  the  purchaser  was  given 
possession  and  the  deed  was  placed  in  escrow,  to  be  delivered  upon  perform- 
ance of  his  undertakings,  is  a  condition  concurrent  with  the  obligation  of  the 
vendor  to  allow  the  purchaser  to  remain  in  possession,  and  precedent  to  the 
vendor's  obligation  to  convey." ^^  The  purchaser  in  possession  can  not  claim 
damages  for  his  dispossession  by  the  vendor  because  of  the  failure  to  make 
deposits   in  accordance  with    such    condition    without    showing  a  valid   excuse 


382-65.  Necessity  for  adversing  claim. 
— Farrell  v.  Lockhart.  210  U.  S.  142,  148, 
52    L.    Ed.   994,   28    S.    Ct.   681. 

382-65a.  Where  surface  rights  do  not 
conflict. — "If  the  surface  ground  included 
in  an  application  does  not  conflict  with 
that  of  an  adjoining  claimant,  the  latter 
is  in  no  position  to  question  the  right  of 
the  former  to  a  patent.  Take  the  not  in- 
frequent case  of  two  claims  adjoining 
each  other,  the  boundary  line  between 
which  is  undisputed.  If  the  owner  of 
one  applies  for  a  patent,  the  owner  of  the 
other  is  clearly  under  no  obligation  to  ad- 
verse that  application,  even  if  under  any 
circumstances  he  might  have  a  right  to 
do  so.  Other  necessary  conditions  being 
proved,  the  applicant  is  entitled  to  a  pat- 
ent for  the  ground.  Generally  speaking, 
if  the  boundary  between  the  two  claims 
is  undisputed  the  foundation  for  an  ad- 
verse suit  is  lacking."  Lawson  v.  United 
States  Min.  Co.,  207  U.  S.  1,  17,  52  L.  Ed. 
65.  28  S.  Ct.  15. 

382-67a.  Repayment  of  purchase  price. 
— United  States  v.  Colorado  Anthracite 
Co.,  225  U.  S.  219,  56  L.  Ed.  1063,  32  S.  Ct. 
617. 

"Person  who  made  such  entry," — One 
who  makes  an  entry  of  coal  lands 
avowedly  for  his  own  use  and  benefit  is 
"the  person  who  made  such  entry,"  within 
the  meaning  of  the  Act  of  June  16,  1880 
(21  Stat,  at  L.  287,  chap.  244,  U.  S.  Comp. 
Stat.  1901,  p.  1416),  §  2,  providing  for  the 
repayiTient  of  the  purchase  price  in  case 
of  subsequent  cancellation,  although  he 
made  the  entry  at  the  instance  of  a  cor- 
poration, with  its  money  and  for  its  bene- 
fit. United  States  v.  Colorado  Anthracite 
Co.,  225  U.  S.  219,  56  L-  Ed.  1063,  32  S. 
Ct.    617. 

Who  are  "assigns." — The  corporate 
grantee  in  a  quitclaim  deed  to  public  coal 
land,   executed   by  a  person   who,   having 


then  no  interest  therein,  afterwards  made 
an  entry  avowedly  for  his  sole  use  and 
benefit,  but  actually  at  the  instance  of 
the  corporation,  with  its  money  and  for 
its  benefit,  is  his  "assign"'  within  the 
meaning  of  the  Act  of  June  16,  1880,  §  2, 
providing  for  the  repayment  of  the  pur- 
chase price  in  case  of  subsequent  cancel- 
lation of  the  entry  "to  the  person  who 
made  such  entry,  or  to  his  heirs  or  as- 
signs." United  States  v.  Colorado  An- 
thracite Co.,  225  U.  S.  219,  56  L.  Ed.  1063, 
32   S.    Ct.   617. 

Where  entry  fraudulently  procured. — 
The  right  to  the  payment  of  the  purchase 
price  of  public  coal  lands,  given  by  the 
Act  of  June  16,  1880,  §  2,  where  the  en- 
try is  subsequently  canceled  because 
"erroneously  allowed,"  does  not  extend 
to  cases  where  the  entry  was  fraudulently 
procured.  United  States  v.  Colorado  An- 
thracite Co.,  225  U.  S.  219,  56  L.  Ed.  1063, 
32  S.   Ct.  617. 

383-68.  Bradford  v.  Morrison,  212  U.  S. 
389,  395.  53  L.  Ed.  564,  29  S.  Ct.  349.  See, 
also.  Elder  v.  Wood.  208  U.  S.  226,  232, 
52  L.  Ed.  464,  28  S.   Ct.  263. 

Subject  to  lien  of  judgment. — Unpat- 
ented lode  mining  claims  are  "real  prop- 
erty," and  as  such  are  subject  to  the  lien 
of  a  judgment  recovered  against  their 
owner  when  docketed  pursuant  to  Ariz. 
Laws  1891,  Act  No.  50,  §  4,  making:  :i 
docketed  judgment  a  lien  upon  the  judg- 
ment debtor's  real  property,  the  term  be- 
ing defined  by  a  territorial  statute  in 
force  when  the  judgment  in  question  was 
rendered  and  docketed  as  coextensive  with 
lands,  tenements,  and  hereditaments. 
Bradford  r.  Morrison,  212  U.  S.  389,  53 
L.   Ed.  564,  29   S.   Ct.  349. 

383-70a.  Conditions. — World's  Fair  Min. 
Co.  V.  Powers,  224  U.  S.  173,  56  L.  Ed.  717, 
32  S.  Ct.  453. 


870 


Vol.  VIII. 


MINES  AND  MINERALS. 


383-407 


therefor.'^*^''  The  breach  of  such  condition  is  not  excused  by  attachment  pro- 
ceedings and  other  acts  of  the  vendor,  hindering,  but  not  preventing,  perform- 
ance.'^ ^'^ 

V.    Rights  as  Affected  by  Surface  Boundaries. 

A.  In  General — 1.    At  Common  Law. — See  note  71. 

B.  Right  to  Pursue  Vein — 1.  The  General  Rulb. — A  lode  mining  claim 
owner  has  the  right  to  the  ore  beneath  his  claim  in  a  vein  not  having  its  apex 
th.ere,  subject  only  to  the  right  of  the  owner  of  the  claim  where  such  vein  apexes 
to  follow  it  downward  on  its  dip."^^ 

Burden  of  Proof  of  Ownership  of  Apex. — While  proof  of  ownership  of 
the  apex  may  be  proof  of  the  ownership  of  the  vein  descending  on  its  dip  below 
the  surface  of  property  belonging  to  another,  such  ownership  of  the  apex  must 
first  be  established  before  any  extraterritorial  title."^" 

2.  Limitations  upon  the  Rule — e.  Priorities. — See  note  95. 

Priority  of  entry  and  patent  does  not  conclusively  establish  seniority  of 
location,  so  as  to  give  the  holder  of  a  lode  mining  claim  under  such  patent  the 
right  to  the  entire  width  of  the  vein  on  its  dip,  where  part  of  the  apex  of  such 
vein  is  within  such  claim  and  part  within  an  adjoining  claim. ^^^ 

XI.    Right  to  the  Use  of  Timber  on  Mineral  Lands. 

The  rights  conferred  by  the  Act  of  June  3,  1878,  does  not  extend  to  adjacent 
iand.^s^ 

XIV.    Taxation. 
See  note  63. 


383-70b.  Damages  for  dispossession  be- 
cause of  nonperformance. — World's  Fair 
Min.  Co.  V.  Powers,  2:24  U.  S.  173,  56  L. 
Ed.   717.   32   S.   Ct.  453. 

383-70C.  Excuses  for  failure  to  perform. 
— World's  Fair  Min.  Co.  v.  Powers,  224 
U.  S.  173,  56  L.  Ed.  717.  32  S.  Ct.  453. 

384-71.  Title  by  patent  from  the  United 
States  to  a  tract  of  ground,  theretofore 
public,  prima  facie  carries  ownership  of 
all  beneath  the  surface,  and  possession 
under  such  patent  of  the  surface  is  pre- 
sumptively possession  of  all  beneath  the 
surface.  This  is  the  general  law  of  real 
estate.  Lawson  v.  United  States  Min. 
Co..  207  U.  S.  1,  8,  52  L.  Ed.  65,  28  S.  Ct.  15. 

In  respect  to  mining  property,  this  pre- 
sumption of  title  to  mineral  beneath  the 
surface  may  be  overthrown  by  proof  that 
such  mineral  is  a  part  of  a  vein  apexing 
in  a  claim  belonging  to  some  other  party. 
Lawson  V.  United  States  Min.  Col,  207  U. 
S.  1,  53  L.  Ed.  65,  28  S.  Ct.  15.  See  post, 
"Right  to  Pursue  Vein,"  V,  B. 

384-78a.  Right  to  pursue  vein. — IMam- 
moth  Min.  Co.  v.  Grand  Cent.  Min.  Co., 
213  U.  S.  72,  53  L.  Ed.  702,  29  S.  Ct.  413. 

384-78b.  Burden  of  proof  of  ownership 
of  apex. — Lawson  i\  United  States  Min. 
Co.,  207  U.  S.  1,  S,  52  L.  Ed.  65,  28  S.  Ct.  15. 

389-95.  The  senior  location  takes  the  en- 
tire width  of  the  vein  on  its  dip,  v.here  the 
apex  of  such  vein  is  partly  within  two  or 
more  adjacent  lode  mining  claims.  Judg- 
ment, United  States  Min.  Co.  v.  Lawson 
(1904)  134  F.  769,  67  C.  C.  A.  587,  affirmed. 


Lawson  v.  United  States  Min.  Co.,  207  U. 
S.  1,  52  L.  Ed.  (55,  28  S.  Ct.  15. 

389-96a.  Priority  of  entry  and  patent. — 
Judgment,  United  States  Min.  Co.  v.  Law^- 
son  (1904)  134  F.  769,  67  C.  C.  A.  587,  af- 
firmed. Lawson  V.  L'nited  States  Min. 
Co.,  207  U.  S.  1,  52  L.  Ed.  65,  28  S.  Ct.  15. 

405-58a.  Adjacent  land. — The  authority 
to  cut  timber  from  the  public  domain  un- 
der the  Act  of  June  3,  1878  (20  Stat,  at 
L.  88,  chap.  150,  U.  S.  Comp.  Stat.  1901, 
p.  1528),  upon  "lands  being  mineral,  and 
not  subject  to  entry  under  existing  laws 
of  the  United  States,  except  for  mineral 
entry,"  does  not  extend  to  land  adjacent 
to  lands  valuable  for  mineral  purposes, 
but  onl}^  includes  lands  known  to  be  them- 
selves valuable  for  minerals,  which  are 
the  only  lands  excluded  by  the  federal 
statutes  from  any  but  mineral  entry. 
United  States  v.  Plowman,  216  U.  S.  372, 
54  L.  Ed.  523,  30  S.  Ct.  299. 

407-63.  Taxation — Sale  for  taxes. — 
Lands  of  the  United  States  are  not  taxed 
in  violation  of  the  Act  of  March  3.  1875, 
by  the  imposition  of  a  tax  upon  the 
right  of  possession,  for  mining  purposes, 
of  a  lode  mining  claim,  and  the  enforce- 
ment of  the  collection  of  such  t^x  by  a 
sale  of  such  riarht  of  possession.  Elder  v. 
Wood.  208  U  S.  226,  52  L.  Ed.  464,  28  S. 
Ct.  263. 

An  individual  interest  in  a  valid  sub- 
sisting mining  location  has  been  held  to 
be  property,  distinct  from  the  land  itself, 
vendible,  inheritable  and  taxable.  Forbes 
V.    Gracey,    94    U.    S.  762,    24  L.    Ed.    313; 


871 


408-416 


MIXES  AND  MIXERALS. 


Vol.  VIII. 


XVI.    Procedure. 

C.  Recovery  of  Mining  Claims — 1.  In  General. — Presumption  as  to 
Rights  Determined. — In  the  absence  of  the  record  of  an  adverse  suit,  there 
is  no  presumption  that  subterranean  rights  under  lode  mining  locations  were 
therein  considered  and  determined.'"^ 

D.  Action  to  Quiet  Title. — Holder  of  Patent  in  Possession. — The 
holder,  through  a  patent  from  the  United  States,  of  the  legal  title  to  a  lode 
mining  claim,  in  possession,  may  maintain  a  suit  in  equity,  in  a  federal  circuit 
court  sitting  in  Utah  without  a  prior  adjudication  in  an  action  at  law  of  its 
legal  title,  to  cjuiet  title  and  to  restrain  defendants  from  further  mining  or 
removing  ore  from  beneath  the  surface  of  such  claim,  in  view  of  the  provisions 
of  Utah  Rev.  Stat.,  §  3511,  that  an  action  may  be  brought  by  any  person  against 
another  who  claims  an  estate  or  interest  in  real  property  adverse  to  him,  for 
the  purpose  of  determining  such  adverse  claim. '^^^ 

XVIII.  Offenses  in  Connection  with  Disposal  of  Mineral  Lands. 

A.  Conspiracy  to.  Defraud  the  Government.- — A  conspiracy  to  obtain  title 
to  coal  lands  of  the  United  States,  in  clear  violation  of  the  prohibition  of  the 
coal-land  laws  against  making  more  than  one  entry,  is  embraced  bv  the  provi- 
sion of  U.  S.  Rev.  Stat.,  §  5440,  U.  S.  Comp.  Stat.  1901,  p.  3676,  making  crim- 
inal conspiracies  "to  defraud  the  United  States  in  any  manner  or  for  any  pur- 
pose."^^^ 

B.  Making  Fraudulent  Papers  in  Connection  with  Entry. — Making  and 
presenting  false,  fictitious  and  fraudulent  papers  in  connection  with  an  entry  of 
coal  lands  is  not  made  criminal. ^'^'' 


Belk  V.  Meagher.  104  U.  S.  279,  284,  26  L. 
Ed.  735;  Manuel  v.  Wulff,  152  U.  S.  505, 
510,  38  L.  Ed.  532;  St.  Louis  Min.,  etc.,  Co. 
V.  Montana  Min.  Co.,  171  U.  S.  650,  655, 
43  L.  Ed.  320.  A  state,  therefore,  has  the 
power  to  tax  such  interest  and  enforce  the 
collection  of  the  tax  by  sale.  The  tax 
deed  conveys  merely  the  right  of  posses- 
sion and  affects  no  interest  of  the  United 
States.  Elder  v.  Wood,  208  U.  S.  226,  232, 
52  L.  Ed.  464,  28  S.  Ct.  263. 

408-70a.  Presumption  as  to  rights  de- 
termined.— "A  patent  is  issued  for  the 
land  described  and  all  thai  is  necessarily 
determined  in  an  adverse  suit  is  the  prior- 
ity of  right  to  the  land.  This  is  evident* 
from  §  2325,  Rev.  Stat.,  which  says:  'A 
patent  for  any  land  claimed  and  located 
for  valuable  deposit  may  be  obtained  in 
the  following"  manner.'  In  the  section  the 
only  matters  mentioned  for  examination 
and  consideration  relate  to  the  surface  of 
the  ground.  There  is  no  suggestion  or 
provision  for  any  inquiry  or  determination 
of  subterranean  rights.  Lindley,  in  his 
work  on  Mines,  2nd  Ed.,  vol.  2.  §  730,  sav<;: 
'An  application  for  patent  invites  only 
such  contests  as  affects  the  surface  area. 
A  possible  union  of  veins  underneath  the 
surface  can  not  be  foreshadowed  at  the 
time  the  application  is  made.  When  such 
a  condition  arises,  it  is  adjusted  by  refer- 
ence to  surface  apex  ownership  and  pri- 
ority of  location  not  involving  any  sur- 
face conllict.  The  rule  is  well  settled  that 
conflicting  adverse  rights  set  up  to  defeat 
an  application  for  patent  can  not  be  recog- 
nized in  the  absence  of  an  alleged  surface 


conflict.  Prospective  underground  con- 
flicts are  not  the  subject  of  adverse 
claims.' '"  Lawson  f.  United  States  ]\Iin. 
Co.,  207  U.  S.  ],  16,  52  L.  Ed.  65,  28  S. 
Ct.  15. 

411-84a.  Holder  of  patent  in  possession. 
— Lawson  r.  United  States  Min.  Co.,  207 
U.  S.  1,  19,  52  L.  Ed.  65,  28  S.  Ct.  15. 

416-lOa.  Conspiracy. — United  States  v. 
Keitel.  211  U.  S.  .'^70,  53  L.  Ed.  230,  29  S. 
Ct.  123.     Sec  ante,  CONSPIRACY,  p.  256. 

418-lOb.  False,  etc.,  papers — Entry  of 
coal  lands. — Making  and  presenting  false, 
fictitious,  and  fraudulent  papers  in  con- 
nection with  an  entry  of  coal  lands  is  not 
made  criminal  by  Rev.  St.  U.  S.,  §  4746, 
as  amended  by  Act  July  7,  1808,  c.  578,  30 
Stat.  718  (U.  S.  Comp.  St.  1901.  p.  3279), 
because  such  amendatory  statute,  in  re- 
peating the  original  words,  "concerning 
any  claim  for  pension  or  payment  thereof, 
or  pertaining  to  any  other  matter  within 
the  jurisdiction  of  the  commissioner  of 
pensions,"  adds  the  words  "or  of  the  sec- 
retary of  the  interior,"  since  such  section 
as  originally  enacted  related  exclusively 
to  pension  or  bounty  land  claims,  and 
every  enumeration  or  description  of  new 
acts  or  papers,  in  addition  to  those  em- 
braced in  the  section  prior  to  the  amend- 
ment, alone  concerns  pension  or  bounty 
land  claims.  Order  (D.  C.  1907)  157  F. 
396,  reversed.  United  States  v.  Keitel,  211 
U.  S.  370.  53  L.  Ed.  230.  29  S.  Ct.  123; 
United  States  v.  Herr,  211  U.  S.  404.  53  L. 
Ed.  251,  29  S.  Ct.  134;  S.  C,  211  U.  S.  406, 
53  L.  Ed.  252,  29  S.  Ct.  135. 


872 


\ol.  VIII. 


MITIGATIOX  OF  SEXTEXCE. 


416-429 


MINISTERIAL. — See  ante.  Judicial,  Legislative  and  Ministerial,  p.  810. 

MINISTERIAL  ACTION.— See  post.  Public  Officers. 

MINISTERIAL  DUTIES.— See  ante,  Mandamus,  p.  838. 

MINORS. — See  ante.  Infants,  p.  655. 

MINUTE  ENTRIES.— See  post.  Records. 

MISAPPLICATION  OF  FUNDS.— See  ante,  Banks  and  Banking,  p.  184. 

MISBRANDED.— See  note  416-a. 

MISBRANDING  GOODS.— See  ante.  Interstate  and  Foreign  Commerce, 
p.  689. 

MISDEMEANOR.— See  ante.  Criminal  Law,  p.  434. 

MISJOINDER  OF  ACTIONS.— See  ante.  Actions,  p.  7;  post.  Multifa- 
riousness. 

MISJOINDER  OF  PARTIES.— See  post.  Multifariousness;    Parties. 

MISREPRESENTATION.— See  ante.  Fraud  and  Deceit,  p.  597;  Insur- 
ance, p.  674. 

MISTAKE  AND  ACCIDENT.— See  the  title  IVIistake  and  Accident,  vol.  8, 
p.  417,  and  references  there  given. 

MISUSER.— See  post.  Quo  Warranto. 

MITIGATION  OF  SENTENCE.— See  note  429-a. 


416-a.  Misbranded  within  meaning  of 
Food  and  Drugs  Act. — False  and  mis- 
leading statements  in  the  labels  on  a  pro- 
prietary medicine  as  to  its  curative  or 
remedial  effects,  but  which  do  not  im- 
port any  statement  concerning  identitj', 
are  not  misbranding,  within  the  meaning 
of  the  Food  and  Drugs  Act  of  June  30. 
1906  (34  Stat,  at  L.  768,  chap.  3915,  U.  S. 
Comp.  Stat.  Supp.  1908.  p.  1187).  §  8, 
which  defines  that  term  as  applicable  to 
all  drugs  or  articles  of  food,  the  package 
or  label  of  which  shall  bear  any  state- 
ment, design,  or  device  regarding  such 
article  or  the  ingredients  or  substances 
contained  therein  which  shall  be  false  or 
misleading  in  any  particular.  United 
States  r.  Johnson,  221  U.  S.  488,  55  L.  Ed. 
823,  31  S.  Ct.  627.  See  ante,  references 
under  FOODS  AXD  DRUGS,  p.  584.  And 
see  post.   POLICE  POWER. 

It  will  be  observed  that  in  its  enumera- 
tion of  the  acts  which  constitute  a  viola- 
tion of  the  statute,  congress  has  not  in- 
cluded the  failure  to  disclose  the  in- 
gredients of  the  article,  save  in  specific 
instances  where,  for  example,  morphine, 
opium,  cocaine,  or  other  substances  par- 
ticularly mentioned,  are  present.  It  is 
provided  that  the  article  "for  the  pur- 
po.-es  of  this  act"'  (the  Food  and  Drugs 
Act)  shall  be  deemed  to  be  misbranded 
if  the  package  or  label  bear  any  state- 
ment, design  or  device  regarding  it  or  the 
ingredients  or  substances  it  contains, 
which  shall  be  false  or  misleading  (§  8"). 
But  this  does  not  cover  the  entire  ground. 
It  is  one  thing  to  make  a  false  or  mis- 
leading statement  regarding  the  article 
or  its  ingredients,  and  it  may  be  quite 
another  to  give  no  information  as  to  what 
the  ingredients  are.  As  is  well  known, 
products  may  be  sold,  and  in  case  of  so- 
called   proprietary   articles   frequently   are 


sold,  under  trade  names  which  do  not 
reveal  the  ingredients  of  the  composition 
and  the  proprietors  refrain  from  reveal- 
ing tliem.  r^Ioreover,  in  defining  what 
shall  be  adulteration  or  misbranding  for 
the  purpose  of  the  federal  act,  it  is  pro- 
vided that  mixtures  or  compounds  known 
as  articles  of  food  under  their  own  dis- 
tinctive names,  not  taking  or  imitating 
the  distinctive  name  of  another  article, 
which  do  not  contain  "any  added  poison- 
ous or  deleterious  ingredients''  shall  not 
be  deemed  to  be  adulterated  or  mis- 
branded if  the  name  be  accompanied  on 
the  same  label  or  brand  with  a  statement 
of  the  place  of  manufacture  (§  8).  Sav- 
age f.  Jones.  225  U.  S.  501,  531.  56  L.  Ed. 
1182.   32    S.   Ct.   715. 

429-a.  Mitigation  and  commutation  dis- 
tinguished.—  It  may  be  conceded  th^t 
there  is  a  technical  difference  between  the 
commutation  of  a  sentence  and  the  miti- 
gation thereof.  The  first  is  a  change  of 
a  punishment  to  which  a  person  has  been 
condemned  into  one  less  severe,  substi- 
tuting a  less  for  a  greater  punishment  by 
authority  of  law.  To  mitigate  a  sentence 
is  to  reduce  or  lessen  the  amount  of  the 
penalty  or  punishment.  The  reduction  of 
a  sentence  of  a  court-martial,  which  dis- 
misses a  naval  officer  from  the  services, 
to  suspension  for  five  years  on  half  sea- 
pay,  with  a  reduction  in  rank  to  the  foot 
of  the  list  of  officers  of  his  rank,  is  a 
mitigation  of  the  sentence  within  the 
meaning  of  United  States  Revised  Stat- 
utes. §  1624,  that  every  oflicer  who  is  au- 
thorized to  convene  a  court-martial  shall 
have  power,  on  reversion  of  its  proceed- 
ing, to  "remit  or  mitigate"  but  "not  to 
commute"'  the  sentence  of  any  such  court 
which  he  is  authorized  to  approve  and 
confirm.  Mullan  z:  United  States,  212  U. 
S.  516.  53  L.  Ed.  632,  29  S.  Ct.  330. 


873 


429  MONOPOLIES  AND  CORPORATE  TRUSTS.         Vol.  VIII. 

MIXED  JURY.— See  ante,  Civil  Rights,  p.  236;  Jury,  p.  813. 
MONEY.— See  note  3. 


MONOPOLIES  AND  CORPORATE  TRUSTS. 

I.  Definition  and  General  Nature,  875. 
II.  At  Common  Law,  875. 

III.  Constitutional  and  Statutory  Provisions,  877. 

B.  State  Constitutions  and  Statutes,  877. 

2.  Under  the  Acts  of  States,  877. 

a.  In  General,  877. 

b.  Constitutionality  of   State   Statutes,  877. 

c.  Remedies  under  the  Statutes,  878. 

(2)    Remedies    against    Corporations.    878. 

d.  Effect  of  Contracts,  878. 

C.  Under  the  Act  of  Congress,  878. 

1.  The  Act  Stated,  878. 

2.  Constitutionality  of  Act,  878. 

3.  General  Construction  of  Act,  878. 

a.  In  General,   878. 

c.  Protects   Only    Interstate   and   International   Trade   or   Com- 

merce, 880. 

d.  Restraint  Must  Be  Direct.  881. 

e.  Embraces   All   Restraints.   881. 

4.  Pleading  and  Practice,  887. 

a.  Criminal    Prosecution,   887. 

b.  Civil  Remedies,  887. 

(2)  Injunctions,   887. 

(3)  Actions   for  Damages,  890. 
fa)   In   General,   890. 

5.  Effect  on  Contracts.   890. 

CROSS   REFERENCES. 

See  the  title  Monopolies  and  Corporate  Trusts,  vol.  8.  p.  431,  and  refer- 
ences there  given. 

In  addition,  see  ante.  Appeal  and  Error,  p.  34;  Constitutional  Law,  p.  264; 
Due  Process  oe  Law,  p.  475;  Foreign  Corporations,  p.  584;  post,  Patents; 
Quo  Warranto. 

As  to  allegations  of  facts  prior  to  passage  of  antitrust  act  being  harmless 
error,  see  ante,  Appeal  and  Error,  p.  34.  As  to  exclusion  by  states  of  cor- 
porations that  constitute  monopolies  or  trusts,  see  ante.  Constitlttional  Law, 

429-3.     Fees  and  emoluments  as  money.  United  States,  but  as  the  amount  allowed 

— The  duty  of  a  clerk  of  a  federal  district  to    him    for    his    compensation    and    ofifice 

court   to   pay   over   to   the   United    States  expenses   under   the    statutes   defining  his 

the   surplus    fees    and   emoluments    of  his  rights  and  duties,  and  with  respect  to  the 

ofifice  which  his  half-yearly  return  or  the  amount  payable  when  the  return  is  made, 

audit    thereof    shown    to    exist    over    and  the   clerk  is   not  a   trustee,  but  a   debtor, 

above    the    compensation    and    allowances  The    amount    with     which    the    clerk     is 

authorized  by  law  to  be   retained  by  him  chargeable  upon  his  accounting  is  not  the 

is  not  governed  by  the  federal  statutes  re-  "public  money"   or  "the   money  or  prop- 

lating   to    the    embezzlement     of     "public  erty    of   the    United    States"     within     the 

money"    or    "money    or    property    of    the  meaning      of      their     provisions.      United 

United  States,"  but  such  fees  and  emolu-  States  v.  Mason,  218  U.  S.  517,  54  L.  Ed. 

ments   are   received   by   the   clerk,   not   as  1133,    31    S.    Ct.    28.      See    ante,    CLERKS 

moneys    or    property     belonging    to    the  OF  COURT,  p.  241. 

874 


Vol.  VIII.        MONOPOLIES  AND  CORPORATE  TRUSTS. 


432-433 


p.  264;  Due  Process  of  Law,  p.  475;  Foreign  Corporations,  p.  584;  Im- 
pairment OF  Obligation  of  Contracts,  p.  624.  As  to  constitutionality  of 
provisions  as  to  trusts  and  monopolies,  see  ante,  Constitutional  Law,  p.  264; 
Due  Process  of  Law,  p.  475 ;  Impairment  of  Obligation  of  Contracts,  p. 
624.  As  to  due  process  of  law  in  matters  relating  to  monopolies  and  trusts, 
see  ante,  Due  Process  of  Law,  p.  475.  As  to  quo  warranto  proceedings,  see 
post,  Quo  Warranto.  As  to  presence  of  one  of  the  defendants  in  the  district 
conferring  jurisdiction  on  court  with  power  to  serve  notice  on  nonresident  de- 
fendants, see  post  Venue.  As  to  self-incrimination  of  witnesses,  see  ante, 
Constitutional  Law,  p.  264. 

I.  Definition  and  General  Nature. 

See  note  1. 

Conspiracy  in  Restraint  of  Trade  and  Contract  in  Restraint  of  Trade 
Distinguished. — A  conspiracy  is  a  partnership  in  criminal  purposes ;  and  a 
conspiracy  in  restraint  of  trade  is  different  from  and  more  than  a  contract  in 
restraint  of  trade. ^^ 

n.  At  Common  Law. 

See  note  3. 


432-1.  Definition.— Standard  Oil  Co.  r. 
United  States,  221  U.  S.  1,  Jl.  5o  L.  Ed. 
619,  31   S.   Ct.  502. 

Engrossing  was  defined  in  the  statute, 
5  and  6  Edw.  VI,  chap.  14,  as  follows: 
"Whatsoever  person  or  persons  *  *  * 
shall  engross  or  get  into  his  or  their 
hands  b}-  buying,  contracting,  or  promise — 
taking,  other  than  by  demise,  grant,  or 
lease  of  land,  or  title,  any  corn  growing 
in  the  fields,  or  any  other  corn  or  grain, 
butter,  cheese,  fish,  or  other  dead  victuals 
whatsoever,  within  the  realm  of  England, 
to  the  intent  to  sell  the  same  again,  shall 
be  accepted,  reputed,  and  taken  as  unlaw- 
ful engrosser  or  engrossers.''  Standard 
Oil  Co.  z:  United  States,  221  U.  S.  1.  53.  55 
L.   Ed.  619.  31   S.  Ct.  502. 

Monopoly  created  by  sovereign  power. 
— "It  is  remarkable  that  nov.hcre  at  com- 
mon law  can  there  be  found  a  prohibition 
against  the  creation  of  monopoly  bj'  an  in- 
dividual. This  would  seem  to  manifest, 
either  consciously  or  intuitively,  a  pro- 
found conception  as  to  the  inevitable  op- 
eration of  economic  forces  and  the 
equipoise  or  balance  in  favor  of  the  pro- 
tection of  the  rights  of  individuals  which 
resulted.  That  is  to  say,  as  it  was  deemed 
that  monopoly  in  the  concrete  could  only 
arise  from  an  act  of  sovereign  power,  and, 
such  sovereign  power  being  restrained, 
prohibitions  as  to  individuals  were  di- 
rected, not  against  the  creation  of  monop- 
oly, but  were  onh'  applied  to  such  acts  in 
relation  to  particular  subjects  as  to  which 
it  was  deemed,  if  not  restrained,  some  of 
the  consequences  of  monopoly  might  re- 
sult." Standard  Oil  Co.  z\  United  States, 
221   U.  S.  1.  52.  55  L.  Ed.  619,  31  S.  Ct.  502. 

Present  meaning. — Both  in  this  country 
and  in  England  the  acts  from  which  it  was 
deemed  there  resulted  a  part  if  not  all  of 
the    injurious    consequences    ascribed    to 


monopoly,  came  to  be  referred  to  as  a 
monopoly  itself.  In  other  words,  practi- 
cal common  sense  caused  attention  to  be 
concentrated  not  upon  the  theoretically 
correct  name  to  be  given  to  the  condition 
or  acus  which  gave  rise  to  a  ha'-mful  re- 
sult, but  to  the  result  itself  and  to  the 
remedying  of  the  evils  which  it  produced. 
Standard  Oil  Co.  7\  United  States,  22!  U. 
S.  1,  56,  55  L.  Ed.  619.  31  S.  Ct.  502 

432-la.  Conspiracy  in  restraint  of  trade 
and  contract  in  restraint  of  trade  distin- 
guished.— A  conspiracy  to  restrain  or  mo- 
nopolize trade  by  improperly  excluding  a 
competitor  frim  busin;«s  contemplates 
that  the  conspirators  will  remain  in  busi- 
ness, and  will  continue  their  combined  ef- 
f'lrrs  to  drive  the  competitor  out  until  they 
succeed.  If  they  do  continue  such  efforts 
in  pursuance  of  the  plan,  the  conspiracy 
continues  up  to  the  time  of  abandonment 
or  success.  A  conspiracy  in  restraint  of 
trade  is  different  from  and  more  than  a 
contract  in  restraint  of  trade.  A  conspir- 
acy is  constituted  by  an  agreement,  it  is 
true,  but  it  is  the  result  of  the  agreement, 
rather  than  the  agreement  itself,  just  as 
a  partnership,  although  constituted  by  a 
contract,  is  not  the  contract,  but  is  a  re- 
sult of  it.  The  contract  is  instantaneous, 
the  partnership  may  endure  as  one  and 
the  same  partnership  for  years.  A  con- 
spiracy is  a  partnership  in  criminal  pur- 
poses. That  as  such  it  may  have  contin- 
uation in  tiine  is  shown  by  the  rule  that 
an  overt  act  of  one  partner  may  be  theact 
of  all  without  any  new  agreement  specific- 
ally directed  to  that  act.  United  States 
r.  Kissel,  218  U.  S.  601,  54  U.  Ed.  1168,  31 
S.  Ct.  124.  See  ante,  COXSPIRACY,  p. 
256. 

433-3.  Monopolies  void  •  at  common 
law. — The  situation  is  this:  monopolies 
were    unlav.-ful    by    the    common    law    be- 


433 


MONOPOLIES   AND   CORPORATE    TRUSTS.       Vol.  Mil. 


cause  of  their  restriction  upon  individual 
freedom  of  contract  and  their  injury  to 
the  public.  Standard  Oil  Co.  v.  United 
States,  221  U.  S.  1,  54,  55  L.  Ed.  619,  31  S. 
Ct.  502. 

Monopolies  odious  and  against  common 
right. — "The  evils  which  led  to  the  public 
outcry  against  monopolies  and  to  the  final 
denial  of  the  power  to  make  them  may  be 
thus  summarily  stated:  1.  The  power  wnich 
the  monopoly  gave  to  the  one  who  en- 
joyed it  to  fix  the  price  and  thereby  in- 
jure the  public.  2.  The  power  which  it  en- 
gendered of  enabling  a  limitation  on  pro- 
duction. 3.  The  danger  of  deterioration 
in  quality  of  the  monopolized  article 
which  it  was  deemed  was  the  inevitable 
resultant  of  the  monopolistic  control  over 
its  production  and  sale."  Standard  Oil 
Co.  V.  United  States.  221  U.  S.  1,  52,  55  L. 
Ed.  619,  31  S.  Ct.  502. 

Contracts  in  restraint  of  trade  unrea- 
sonable and  void. — At  common  law,  to 
protect  the  freedom  ot  contract  of  the  in- 
dividual not  only  in  his  own  interest,  but 
principally  in  the  interest  of  the  common 
weal,  a  contract  of  an  individual  by  which 
he  put  an  unreasonable  restraint  upon 
himself  as  to  carry  on  his  trade  or  busi- 
ness was  void.  Standard  Oil  Co.  i'. 
United  States,  221  U.  S.  1,  54,  55  L.  Ed. 
619,  31  S.  Ct.  502. 

The  rule  at  common  law  was  that  as  to 
necessaries  of  life,  the  freedom  of  the  in- 
dividual to  deal  was  restricted  where  the 
nature  and  character  of  the  dealing  was 
such  as  to  engender  the  presumption  of 
intent  to  bring  about  at  least  one  of  the 
injuries  which  it  was  deemed  would  result 
from  monopoly,  that  is  an  undue  enhance- 
ment of  price.  Standard  Oil  Co.  v.  United 
States,  221  U.  S.  1,  54,  55  L.  Ed.  619,  31  S. 
Ct.  502. 

"There  is  no  doubt  that  (to  quote  from 
the  well  known  work  of  Chief  Justice  Erie 
on  Trade  Unions)  'at  common  law,  every 
person  has  individually,  and  the  public 
also  has  collectively,  a  right  to  require 
that  the  course  of  trade  should  be  kept 
free  from  unreasonable  obstruction."  " 
Loewe  v.  Lawlor,  208  U.  S.  274,  294,  52  L. 
Ed.  488,  28  S.  Ct.  301. 

Modification  of  doctrine. — It  is  certain 
that  at  a  very  remote  period  the  words 
"contract  in  restraint  of  trade"  in  Eng- 
land came  to  refer  to  some  voluntary  re- 
straint put  by  contract  by  an  individual 
on  his  right  to  carry  on  his  trade  or  call- 
ing. Originally,  all  such  contracts  were 
considered  to  be  illegal,  because  it  was 
deemed  they  were  injurious  to  the  public 
as  well  as  to  the  individuals  who  made 
them.  In  the  interests  of  the  freedom  of 
individuals  to  contract  the  doctrine  that 
all  contracts  in  restraint  of  trade  were  il- 
legal, was  modified  so  that  it  was  only 
when  a  restraint  by  contract  was  so  gen- 
eral as  to  be  coterminous  with  the  king- 
dom that  it  was  treated  as  void.     That  is 


to  say,  if  the  restraint  was  partial  in  its 
operation  and  was  otherwise  reasonable 
the  contract  was  held  to  be  valid.  Stand- 
ard Oil  Co.  V.  United  States,  221  U.  S.  1, 
51,  55  L.  Ed.  619,  31  S.  Ct.  502. 

Outside  of  the  restrictions  resulting 
from  the  want  of  power  in  an  individual 
to  voluntarily  and  unreasonably  restrain 
his  right  to  carry  on  his  ^-rsde  or  business 
and  outside  of  the  want  of  right  to  lestrain 
the  free  course  of  trade  by  contracts  or 
acts  which  implied  a  wrongful  purpose, 
freedom  to  contract  and  to  abstain  fiom 
contracting  and  to  exercise  every  reason- 
able right  incident  thereto  became  the 
rule  in  the  Modern  English  law.  The  de- 
cision of  the  House  of  Lords  in  1892 
(Mongul  Steamship  Co.  v.  McGragor.  A. 
C.  25T,  announced  shortly  after  the  pas- 
sage of  the  Antitrust  Act,  serves  re^^xly 
to  show  the  exact  state  of  the  law  in  Eng- 
land at  the  time  the  antitrust  statute  of 
July  2,  1890,  was  enacted.  Standard  O'l 
Co.  V.  United  States,  221  U.  S.  1,  56,  55  L. 
Ed.  619,  31  S.  Ct.  502. 

It  will  be  seen  that  this  country  fol- 
lowed the  line  of  development  in  Eng- 
land; that  contracts  or  acts  were  at  one 
time  deemed  to  be  of  such  a  character  as 
to  justify  the  inference  of  wrongful  intent 
which  were  at  another  period  thought  not 
to  be  of  that  character.  It  is  also  true  that 
while  tlie  principles  concerning  contracts 
in  restraint  of  trade,  that  is,  voluntary  re- 
straint put  by  a  person  on  his  right  to 
pursue  his  calling,  hence  only  operating 
subjectively,  came  generally  to  be  recog- 
nized in  accordance  with  the  English  rule, 
it  came  moreover  to  pass  that  contracts 
or  acts  which  it  was  considered  had  a  mo- 
nopolistic tendency,  especially  those  which 
were  thought  to  unduly  diminish  competi- 
tion and  hence  to  enhance  prices — in 
other  words,  to  monopolize — came  also 
in  a  generic  sense  to  be  spoken  of  and 
treated  as  they  had  been  in  England,  as 
restricting  the  due  course  of  trade,  and 
therefore  as  being  in  restraint  of  trade. 
The  dread  of  enhancement  of  prices  and 
of  other  wrongs  which  it  was  thought 
would  flow  from  the  undue  limitation  on 
competitive  conditions  caused  by  con- 
tracts or  other  acts  of  individuals  or  cor- 
porations, led,  as  a  matter  of  public  policy, 
to  the  prohibition  or  treating  as  illegal 
all  contracts  or  acts  which  were  unrea- 
sonably restrictive  of  competitive  condi- 
tions, either  from  the  nature  or  character 
of  the  contract  or  act  where  the  sur- 
rounding circumstances  were  such  as  to 
justify  the  conclusion  that  they  had  not 
been  entered  into  or  performed  with  the 
legitimate  purpose  of  reasonably  forward- 
ing personal  interest  and  developing  trade, 
but  of  the  contrary  were  of  such  a  char- 
acter as  to  give  rise  to  the  inference  or 
presumption  that  they  had  been  entered 
into  or  done  with  the  intent  to  do  wrong 
to  the  general  public  and  to  limit  the  right 


876 


Vol.  VIII.       MONOPOLIES  AND   CORPORATE   TRUSTS. 


434-435 


III.   Constitutional  and  Statutory  Provisions. 

B.  State  Constitutions  and  Statutes — 2.  Under  the  Acts  of  States- 
a.  In  General. — See  note  10. 

b.   Constitutionality  of  State  Statutes. — See  note   11. 


of  individuals,  thus  restraining  the  free 
flow  of  commerce  and  tending  to  bring 
about  the  evils,  such  as  enhancement  of 
prices,  which  were  considered  to  be 
against  public  policy.  Standard  Oil  Co. 
c'.  United  States,  221  U.  S.  1,  58,  .55  L,.  Ed. 
619,  31  S.  Ct.  502. 

"With  respect  to  contracts  in  restraint 
of  trade,  the  earlier  doctrine  of  the  com- 
mon law  has  been  substantially  modified 
in  adaptation  to  modern  conditions.  But 
the  public  interest  is  still  the  first  con- 
sideration. To  sustain  the  restraint,  it 
must  be  found  to  be  reasonable  both  with 
respect  to  the  pr.l)lic  and  to  the  parties 
and  that  it  is  limited  to  what  is  fairly 
necessary,  in  the  circumstances  of  the 
particular  case,  for  the  protection  of  the 
covenantee.  Otherwise,  restraints  of  trade 
are  void  as  against  public  policy."  Miles 
Medical  Co.  v.  Park  &  Sons  Co.,  220  U. 
S.   373,  400,   55   L.    Ed.   502,  31    S.   Ct._,376. 

434-10.  Domestic  as  well  as  foreign  cor- 
porations embraced  by  Arkansas  statute. 
— Domestic  as  well  as  foreign  corpora- 
tions are  embraced  by  Act  Ark.  Jan.  23, 
1905  (Acts  1905,  p.  2),  §  1,  imposing  a 
penalty  upon  any  corporation  doing  busi- 
ness within  the  state  while  a  member  of 
a  combination  to  control  prices.  Judg- 
ment (1907),  100  S.  W.  407,  81  Ark.  519, 
affirmed.  Hammond  Packing  Co.  v.  Ar- 
kansas, 212  U.  S.  322,  53  L.  Ed.  530.  29  S. 
Ct.   370. 

435-11.  State  statutes  held  constitu- 
tional.— "That  state  legislatures  have  the 
right  to  deal  with  the  subject  matter  and 
to  prevent  unlawful  combinations  to  pre- 
vent competition  and  in  restraint  of  trade, 
and  to  prohiliit  and  punish  monopolies,  is 
not  open  to  question.  National  Cotton 
Oil  Co.  V.  Texas,  197  U.  S.  115,  49  L.  Ed. 
689,  25  S.  Ct.  379;  Smiley  v.  Kansas,  196 
U.  S.  447,  49  L.  Ed.  546,  25  S.  Ct.  289." 
Waters-Pierce  Oil  Co.  v.  Texas,  No.  1, 
212  U.  S.  86,  53  L.  Ed.  417,  29  S.  Ct.  220. 

State  legislatures,  in  dealing  with  mo- 
nopolies and  combinations  in  restraint  of 
trade,  may  provide  their  own  procedure 
and  determine  the  means  by  which  their 
legislation  may  be  made  effective,  except 
that  such  procedure  must  not  work  a  de- 
nial of  fundamental  rights,  or  conflict 
with  the  federal  constitution.  Judgment 
(Tex.  Civ.  App.  1908),  106  S.  W.  918,  af- 
firmed. Waters-Pierce  Oil  Co.  v.  Texas, 
No.  1,  212  U.  S.  86,  53  L.  Ed.  417,  29  S.  Ct. 
220. 

Corporations  are  not  denied  the  equal 
protection  of  the  laws  because  corporate 
violators      of     the      Tennessee     Antitrust 


Act  of  March  16,  1903,  may  be  proceeded 
against  by  bill  in  equity  on  relation  of 
the  attorney  general,  while  natural  per- 
sons offending  against  its  provisions  can 
not  be  tried  without  a  preliminary  in- 
vestigation by  a  grand  jury,  and  indict- 
ment or  presentment,  and  a  trial  by  jury, 
with  the  right  to  an  acquittal  unless  their 
guilt  is  established  beyond  a  reasonable 
doubt,  and  to  the  benefit  of  a  statute  of 
limitations  of  one  year.  Standard  Oil  Co. 
V.  Tennessee,  217  U.  S.  413,  54  L.  Ed.  817, 
30  S.  Ct.  543.  See,  also,  ante,  CONSTI- 
TUTIONAL LAW.  p.  264. 

Penalties  imposed  by  the  jury  and  con- 
firmed by  the  state  courts  at  the  rate  of 
$1,500  and  $50  per  day  for  violating  re- 
spectively, through  a  series  of  years,  the 
Texas  antitrust  laws  of  May  25,  1899, 
and  March  31,  1903,  are  not  so  excessive 
as  to  deprive  the  defendant  corporation 
of  its  property  without  due  process  of 
law,  where  sttch  property  amounts  to 
more  than  $40,000,000,  and  its  dividends 
have  been  as  high  as  700  per  cent  annum. 
Waters-Pierce  Oil  Co.  v.  Texas,  No.  1, 
212  U.  S.  86,  53  L.  Ed.  417,  418,  29  S.  Ct. 
220. 

A  retroactive  effect,  in  violation  of  U. 
S.  Const.,  art.  1,  §  10,  is  not  given  to  the 
Texas  antitrust  laws  of  May  25,  1899, 
and  March  31,  1903,  by  construing  them 
to  authorize  a  conviction  of  a  foreign  cor- 
poration for  carrying  out,  after  the  pas- 
sage of  those  laws,  an  agreement  for 
division  of  territory  in  suppression  of  com- 
petition, entered  into  before  the  enact- 
ment of  those  laws  and  before  the  crea- 
tion of  the  defendant  corporation,  and  at 
a  time'  when  such  agreement  was  legal. 
Waters-Pierce  Oil  Co.  v.  Texas,  No.  1,  212 
U.  S.  86,  53   L.   Ed.  417,  29   S.   Ct.  220. 

Due  process  of  law  is  not  denied  a  cor- 
poration convicted  of  violatiag  the  Texas 
antitrust  laws  of  May  25,  1899,  and  March 
31,  1903,  because  the  legislation  permits 
and  the  trial  court  charged  that  there  may 
be  a  conviction  not  only  for  acts  which  ac- 
complish the  prohibited  result,  but  also 
for  those  which  "tend"  or  are  "reasonably 
calculated"  to  bring  about  such  result. 
Waters-Pierce  Oil  Co.  v.  Texas,  No.  1, 
212  U.  S.  86,  53  L.  Ed.  417,  29  S.  Ct.  220. 
See  ante,  DUE  PROCESS  OE  LAW,  p. 
475. 

Interstate  commerce  is  not  unlawfully 
regulated,  at  least,  in  the  absence  of  con- 
gressional action,  by  the  Tennessee  Anti- 
trust Act  of  March  16.  1903.  under  which 
as  construed  by  the  state  court,  a  foreign 
oil  company  may  be  excluded  from  doing 
domestic   business  in   the   state  because   it 


87' 


438-439 


MONOPOLIES  AND   CORPORATE   TRUSTS.       Vol.  VIII. 


c.  Remedies  under  the  Statutes — (2)  Remedies  against  Corporations. — Pro- 
duction of  Documents  and  Witnesses. — An  honest,  unavailing  effort  to 
produce  books  and  paper  and  secure  attendance  of  witnesses  prevented  the 
striking  out  of  defendants'  answer  and  entry  of  a  default  judgment. ^^^ 

d.  Effect  on  Contracts. — See  note  17. 

C.     Under   the    Act    of   Congress — 1.     Thk   x\ct    Statkd. — See   note    19. 

2.  Constitutionality  of  Act. — See  note  20. 

Certainty. — The  Antitrust  Act  is  not  unenforcible  because  of  generality.^f* 

3.  General  Construction  of  Act — a.  In  GeueraL — See  note  21. 


has  induced  merchants  in  that  state,  by  a 
gift  of  oil,  to  revoke  orders  on  a  rival 
company  for  oil  to  be  shipped  into  the 
state.  Standard  Oil  Co.  z'.  Tennessee,  217 
U.   S.   413,   54   L.    Ed.   817,   30   S.   Ct.   543. 

438-16a.  Production  of  documents  and 
witnesses. — An  honest,  unavailing  effort  to 
produce  the  books  and  papers,  and  secure 
the  attendance  as  v^ntnesses  before  a  com- 
mission of  the  officers,  agents,  directors, 
and  employees  called  for  by  an  order 
made  conformably  to  Arkansas  Antitrust 
Act  (Act  Ark.  Jan.  23,  1905  [Acts  1905,  p. 
9],  §  8),  in  a  proceeding  against  a  foreign 
corporation  for  violating  that  act,  will 
prevent  the  striking  out  of  defendant's 
ansvi^er,  and  the  entering  of  a  default 
judgment  against  it,  authorized  by  §  9 
when  defendant  fails  to  obey  the  order. 
Judgment  (1907),  100  S.  W.  407,  81  Ark. 
519,  affirmed.  Hammond  Packing  Co.  v. 
Arkansas,  212  U.  S.  322,  53  L.  Ed.  530, 
29  S.  Ct.  370. 

438'-17.  No  recovery  on  illegal  contract. 
— Where,  in  pursuance  of  a  plan  to 
assemble  under  one  management  or  own- 
ership the  compression  business  in  the  cot- 
ton-producing states,  an  Oklahoma  com- 
press company,  though  financially  em- 
barrassed, leases  its  entire  property  and 
good  will  to  a  foreign  corporation,  with 
a  covenant  to  lend  its  assistance  to  dis- 
courage competition  against  its  tenant, 
and  to  refrain  from  engaging  in  the  busi- 
ness of  compressing  cotton  within  50 
miles  of  any  plant  operated  by  the  tenant, 
the  lease  was  invalid  under  the  law  of 
Oklahoma  territory,  which  makes  void 
every  contract  by  which  any  one  is  re- 
strained from  exercising  a  lawful  profes- 
sion, trade,  or  business,  except,  however, 
that  one  who  sells  the  good  will  of  a  busi- 
ness may  agree  with  the  buyer  to  refrain 
from  carrying  on  a  similar  business  within 
a  specified  county,  city,  or  part  thereof. 
Wilson's  Rev.  &  Anno.  Stat.,  §§  819,  820. 
Shawnee  Compress  Co.  v.  Anderson,  209 
U.   S.   423,   52   L.   Ed.   865,  28   S.   Ct.   572. 

438-19.  Under  act  of  contract. — Loewe 
V.  Lawlor,  208  U.  S.  274,  52  L.  Ed.  488,  28 
S.  Ct.  301;  Continental  Wall  Paper  Co.  v. 
Voight  &  Sons  Co.,  212  U.  S.  227,  53  L. 
Ed.  486,  29  S.  Ct.  280;  Standard  Oil  Co.  v. 
United  States,  221  U.  S.  1,  55  L.  Ed.  619, 
31    S.    Ct.   502. 

438-20.    Power   to    regulate     based     on 


power  to  control  interstate  and  interna- 
tional commerce. — The  prohibitions  of 
Antitrust  Act  July  2,  1890,  c.  647,  §§  1,  2, 
26  Stat.  209  (U.  S.  Comp.  St.  1901,  p.  3200), 
against  restraints  or  monopolization  of 
trade  or  commerce,  do  not  exceed  the  au- 
thority of  congress  to  regulate  commerce, 
as  applied  to  undue  restraints  of  inter- 
state or  foreign  commerce  in  petroleum 
and  its  products,  by  contract,  combina- 
tion, or  conspiracy,  or  monopolization, 
or  attempts  to  monopolize  any  part  of 
such  commerce.  Standard  Oil  Co.  v. 
United  States,  221  U.  S.  1,  55  L.  Ed.  619, 
31  S.  Ct.  502,  affirming  judgment  (C.  C. 
1909),  United  States  v.  Standard  Oil  Co. 
of   New  Jersey,    173   F.   177. 

The  contention  that  the  Antitrust  Act 
of  July  2,  1890,  can  not  be  constitutionally 
applied,  because  to  do  so  would  extend 
the  power  of  congress  to  subjects  dehors 
the  reach  of  its  authority  to  regulate  com- 
merce, by  enabling  that  body  to  deal  with 
mere  questions  of  production  of  commodi- 
ties within  the  states,  is  unsound.  Stand- 
ard Oil  Co.  v.  United  States,  221  U.  S.  1, 
68,  _  55  L.  Ed.  619,  31  S.  Ct.  502.  See 
United  States  v.  American  Tobacco  Co., 
221  U.  S.  106,  55  L.  Ed.  663,  31  S.  Ct.  632. 

438-20a.  Certainty. — Arguments  pro- 
ceeding upon  the  conception  that  in  view 
of  the  generality  of  the  Antitrust  Act  it 
is  not  susceptible  of  being  enforced  by 
the  courts  because  it  can  not  be  carried 
out  without  a  judicial  exertion  of  legis- 
lative power,  are  clearly  unsound.  The 
statute  certainly  generally  enumerates 
the  character  of  acts  which  it  prohibits 
and  the  wrong  which  it  was  intended  to 
prevent.  Standard  Oil  Co.  v.  United 
States,  221  U.  S.  1,  69,  55  L.  Ed.  619,  31 
S.    Ct.    502. 

439-21.  General  consideration  of  act. — • 
United  States  v.  American  Tobacco  Co., 
221  U.  S.  106,  17S,  55  L.  Ed.  663,  31  S.  Ct. 
632;  Standard  Oil  Co.  v.  United  States, 
221  U.   S.  1,  55  L.   Ed.  619,  31  S.   Ct.  502. 

Criminal  provisions. — Words  having 
universal  scope,  such  as  "every  contract 
in  restraint  of  trade,"  "every  person  who 
shall  monopolize,"  etc.,  will  be  taken,  as 
a  matter  or  course,  to  mean  only  everyone 
subject  to  such  legislation,  not  all  that  the 
legislator  subsequently  may  be  able  to 
catch.  In  the  case  of  the  present  statute, 
the  improbability  of  the  United  States  at- 


878 


Vol.  YIII.       MONOPOLIES  AND  CORPORATE  TRUSTS. 


439 


Intention  and  Object. — The  object  and  intention  of  the  combination  de- 
termines its  legality. 21=^ 

Origin  and  Construction  of  Terms. — The  terms  "restraint  of  trade"  in 
the  first  section  of  the  Antitrust  Act,  and  "attempt  to  monopolize"  and  "mo- 
nopolize" in  the  second  section,  in  their  rudimentary  meaning  took  their  origin 
in  the  common  law.^^^  The  second  section  of  the  Antitrust  Act  was  intended 
to  supplement  the  first  section  and  render  it  certain  that  by  no  possible  guise 
the  public  policy  in  the  first  section  could  be  frustrated  or  evaded. 2i<=  The 
words  "restraint  of  trade"  do  not  embrace  all  those  normal  and  usual  contracts 
essential  to  individual  freedom  and  the  right  to  make  which  were  necessary  in 
order  that  the  course  of  trade  might  be  free.-^'^  The  terms  "attempt  to  mo- 
nopolize" and  "monopolize,"  as  used  in  the  second  section  of  the  act,  reach 
every  act  bringing  about  the  prohibited  results. -^^     The  words  "any  part"  in  the 


tempting  to  make  acts  done  in  Panama 
or  Costa  Rico  criminal  is  obvious,  yet  the 
law  begins  by  making  criminal  the  acts 
for  which  it  gives  a  right  to  sue.  Acts 
done  in  those  states  by  the  defendant,  a 
domestic  corporation,  are  not  within  the 
scope  of  the  statute  so  far  as  the  present 
suit  is  concerned.  American  Banana  Co. 
V.  United  Fruit  Co.,  213  U.  S.  347,  53  L. 
Ed.  826,  29  S.  Ct.  511. 

439-21  a.  Intention  and  object. — Loewe 
V.  Lawlor,  208  U.  S.  274,  297,  52  L.  Ed.  488, 
28    S.    Ct.   301. 

439-21b.  Origin. — There  can  be  no  doubt 
that  the  sole  subject  with  which  the  first 
section  of  the  Antitrust  Act  of  July  2, 
1890,  deals  is  "restraint  of  trade"  as 
therein  contemplated,  and  that  the  "at- 
tempt to  monopolize"'  and  monopolization 
is  the  subject  with  which  the  second  sec- 
tion is  concerned.  It  is  certain  that  those 
terms  at  least  in  their  rudimentary  mean- 
ing, took  their  origin  in  the  common  law, 
and  were  also  familiar  in  the  law  of  this 
country  prior  to  and  at  the  time  of  the 
adoption  of  the  act  in  question.  Standard 
Oil  Co.  V.  United  States,  221  U.  S.  1,  50, 
55   L.   Ed.  619,  31   S.   Ct.   502. 

439-210.  Sections  supplemental. — In  the 
second  section  of  the  Antitrust  Act  of 
July  2,  1890,  providing  that  "every  person 
who  shall  monopolize,  or  attempt  to  mo- 
nopolize, or  combine  or  conspire  with  any 
other  person  or  persons,  to  monopolize 
any  part  of  the  trade  or  commerce  among 
the  several  states,  or  with  foreign  nations, 
shall  be  deemed  guilty  of  a  misdemeanor." 
the  consideration  of  the  text  serves  to 
establish  that  it  was  intended  to  supple- 
ment the  first  section  of  that  act,  and  to 
make  sure  that  by  no  possible  guise  could 
the  public  policy  embodied  in  the  first 
section  be  frustrated  or  evaded.  Standard 
Oil  Co.  V.  United  States,  221  U.  S.  1.  55 
L.  Ed.  619,  31   S.   Ct.  502. 

439-21d.  Restraint  of  trade. — The  words 
"restraint  of  trade"  in  Antitrust  Act 
July  2,  1890,  c.  647,  26  Stat.  209  (U.  S. 
Comp.  St.  1901,  p.  3200),  condemning  com- 
binations in  restraint  of  interstate  or  for- 
eign trade  or  commerce,  or  the  monopo- 


lization or  attempts  to  monopolize  any 
part  thereof,  should  be  given  a  meaning 
which  will  not  destroy  the  individual  right 
to  contract,  and  render  difficult,  if  not  im- 
possible, any  movement  of  trade  in  the 
channels  of  commerce,  the  free  move- 
ment of  which  it  was  the  purpose  of  the 
statute  to  protect.  United  States  v. 
\A.merican  Tobacco  Co.,  221  U.  S.  106,  55 
L.  Ed.  663,  31  S.  Ct.  632,  reversing  decree 
(C.  C.  1908),  164  F.  700;  Standard  Oil  Co. 
V.  United  States,  221  U.  S.  1,  55  L.  Ed. 
619,  31   S.   Ct.  502 

In  the  first  section  of  the  Antitrust 
Act  of  July  2,  1890,  providing  that  "Every 
contract,  combination  in  the  form  of  trust 
or  otherwise,  or  conspiracy  in  restraint 
of  trade  or  commerce  *  *  *  is  hereby  de- 
clared to  be  illegal,"  the  context  mani- 
fests that  the  statute  was  drawn  in  the 
light  of  the  existing  practical  conception 
of  the  law  of  restraint  of  trade,  because 
it  groups  as  within  that  class,  not  onlj' 
contracts  which  were  in  restraint  of  trade 
in  the  subjective  sense,  but  all  contracts 
or  acts  which  theoretically  were  attempts 
to  monopolize,  yet  which  in  practice  had 
come  to  be  considered  as  in  restraint  of 
trade  in  a  broad  sense.  Standard  Oil  Co. 
V.  United  States,  221  U.  S.  1,  59,  55  L.  Ed. 
61t<,  31    S.   Ct.   502. 

439-21e.  Monopolize. — In  the  second 
section  of  the  Antitrust  Act  of  July  2, 
1890,  providing  that  "Every  person  who 
shall  monopolize,  or  attempt  to  monopo- 
lize, or  combine  or  conspire  with  any 
other  person  or  persons,  to  monopolize 
any  part  of  the  trade  or  commerce  among 
the  several  states,  or  with  foreign  nations, 
shall  be  deemed  guilty  of  a  misdemeanor," 
the  words  undoubtedly,  as  used  in  the 
section,  reach  every  act  bringing  about 
the  prohibited  results.  The  ambiguity,  if 
any,  is  involved  in  determining  what  is 
intended  by  monopolize.  But  this  am- 
biguity is  readily  dispelled  in  the  light  of 
the  previous  history  of  the  law  of  re- 
straint of  trade  and  the  indication  v.-hich 
it  gives  of  the  practical  evolutjon  by 
which  monopoly  and  the  acts  which  pro- 
duce   the    same  result    as    monopoly,    that 


879 


439 


MONOPOLIES  AXD   CORPORATE   TRUSTS.       Vol.  MIL 


second  section  of  the  Antitrust  Act  has  both  a  geographical  and  a  distributive 
significance.-^^     The  word  person  in  the  Antitrust  Act  embraces  corporations.^^^ 

Distinction  between  Classes. — The  Antitrust  Act  makes  no  distinction  be- 
tween classes. -^'^ 

Debates  as  Aiding  Construction. — It  was  permissible  to  resort  to  debates 
as  a  means  of  ascertaining  the  environment  at  the  time  of  enactment  of  the 
Antitrust  Act.^i' 

c.  Protects  Only  Interstate  and  International  Trade  or  Commerce. — See 
note  23. 


is,  an  undue  restraint  of  the  course  of 
trade,  all  came  to  be  spoken  of  as,  and 
to  be  indeed  synonymous  with,  restraint 
of  trade.  In  other  words,  having  by  the 
first  section  forbidden  all  means  of  mo- 
nopolizing trade,  that  is,  unduly  restrain- 
ing it  by  means  of  every  contract,  com- 
bination, etc.,  the  second  section  seeks,  if 
possible,  to  make  the  prohibitions  of  the 
act  all  the  more  complete  and  perfect  by 
embracing  all  attempts  to  reach  the  end 
prohibited  by  the  first  section,  that  is, 
restraints  of  trade,  by  any  attempt  to 
monopolize,  or  monopolization  thereof,  ■ 
even  although  the  acts  by  which  such  re- 
sults are  attempted  to  be  brought  about 
or  are  brought  about  be  .not  embraced 
within  the  general  enumeration  of  the 
first  section.  And,  of  course,  when  the 
second  section  is  thus  harmonized  with 
and  made  as  it  was  intended  to  be  the 
complement  of  the  first,  it  becomes  ob- 
vious that  the  criteria  to  be  resorted  to 
in  any  given  case  for  the  purpose  of  as- 
certaining whether  violations  of  the  sec- 
tion have  been  committed,  is  the  rule  of 
reason  guided  by  the  established  law  and 
by  the  plain  duty  to  enforce  the  prohibi- 
tions of  the  act  and  thus  the  public  policy 
which  its  restrictions  were  obviously  en- 
acted to  subserve.  Standard  Oil  Co.  z\ 
United  States.  221  U.  S.  1,  61.  55  L.  Ed. 
619,  31  S.   Ct.  502. 

439-21f.  Any  part. — In  the  second  sec- 
tion of  the  Antitrust  Act  of  July  2,  1890, 
providing  that  "Every  person  who  shall 
monopolize,  or  attempt  to  monopolize,  or 
combine  or  conspire  with  any  other  per- 
son or  persons,  to  monopolize  any  part 
of  the  trade  or  commerce  among  the  sev- 
eral states,  or  with  foreign  nations,  shall 
be  deemed  guilty  of  a  misdemeanor."'  The 
commerce  referred  to  by  the  words  "any 
part"  construed  in  the  light  of  the  mani- 
fest purpose  of  the  statute  has  both  a 
geographical  and  a  distributive  signifi- 
cance, that  is  it  includes  any  portion  of 
the  United  States  and  any  one  of  the 
classes  of  things  forming  a  part  of  inter- 
state or  foreign  commerce.  Standard  Oil 
Co.  V.  United  States,  221  U.  S.  1.  61,  55 
L.   Ed.   619.  31   S.   Ct.   502. 

439-21g.  Person. — In  the  second  section 
of  the  Antitrust  Act  of  July  2,  1890,  pro- 
viding that  "Every  person  who  shall  mo- 
nopolize, or  attempt  tb  inonopolize,  or 
combine  or  conspire  with  any    other  person 


or  persons,  to  monopolize  any  part  of  the 
trade  or  commerce  among  the  several 
states,  or  with  foreign  nations,  shall  be 
deemed  guilty  of  a  misdemeanor,"  by 
reference  to  the  terms  of  §  S,  it  is  certain 
that  the  word  person  clearly  implies  a 
corporation  as  well  as  an  individual. 
Standard  Oil  Co.  r.  United  States,  221  U. 
S.   1,  61,  55  L.   Ed.  619.  31  S.   Ct.  502. 

439-21h.  No  distinctions  between  classes. 
—The  Antitrust  Act  of  July  2,  1890. 
made  no  distinction  between  classes.  It 
provided  that  "everj^"  contract,  combina- 
tion or  (Conspiracy  in  restraint  of  trade 
was  illegal.  The  records  of  congress 
show  that  several  efforts  were  made  to 
exempt,  by  legislation,  organizations  of 
farmers  and  laborers  from  the  operation 
of  the  act  and  that  all  these  efforts  failed. 
Loewe  z:  Lawlor.  208  U.  S.  274,  301.  52 
L.   Ed.   48S.   28   S.   Ct.  301. 

439-211.  Debates. — "The  debates  show 
ihat  doul>t  as  to  whether  there  was  a 
common  law  of  the  United  States  which 
governed  the  subject  in  the  absence  of 
legislation  was  among  the  influences  lead- 
ing to  the  passage  of  the  act.  They  con- 
clusively show,  however,  that  the  main 
cause  which  led  to  the  legislation  was  the 
thought  that  it  was  required  by  the 
economic  condition  of  the  times,  that  is, 
the  vast  accumulation  of  wealth  in  the 
hands  of  corporations  and  individuals,  the 
enormous  development  of  corporate  or- 
ganization, the  facility  for  combination 
which  such  organizations  afforded,  the 
fact  that  tlie  facility  was  being  used,  and 
that  combinations  known  as  trusts  were 
being  multiplied,  and  the  v»'idesprean  im- 
pression that  their  power  had  been  and 
would  be  exerted  to  oppress  individuals 
and  injure  the  public  generally.  Al- 
though debates  may  not  be  used  as  a 
means  for  interpreting  a  statute  (United 
States  z\  Trans-Missouri  Freight  Ass'n, 
166  U.  S.  290,  318,  41  L.  Ed.  1007,  and 
cases  cited)  that  rule  in  the  nature  of 
things  is  not  violated  by  resorting  to  de- 
bates as  a  means  of  ascertaining  the  en- 
vironment at  the  time  of  the  enactment 
of  a  particular  law,  that  is.  the  hiitory  cf 
the  period  when  it  was  adopted."  Stand- 
ard Oil  Co.  z:  United  States,  221  U.  S.  1. 
."0,  55  L.  Ed.  619.  31  S.  Ct.  502.  See,  also, 
post.   STATUTES. 

439-23.  Trade  or  commerce  protected. 
—The   Antitrust   Act  of  July  2.   1890,   was 


880 


\'ol.  Mil.       MOXOPOLIES  AXD  CORPORATE   TRUSTS. 


440-444 


Negligible  Amount  of  Intrastate  Commerce. — The  statute  is  applicable 
although  a  negHgible  amount  of  intrastate  business  may  be  affected  in  carrying 
out  the  combination  and  although  the  members  of  the  combination  are  not  them- 
selves engaged  in   interstate  commerce. -^^ 

Conspiracy  to  Do  Acts  in  Another  Jurisdiction. — A  conspiracy  in  this 
country  to  do  acts  in  another  jurisdiction  does  not  draw  to  itself  those  acts  and 
make  them  unlawful,  if  they  are  permitted  by  the  local  law.-'*'' 

d.  Restraint  Must  Be  Direct. — See  note  25. 

e.  Embraces  All  Restraints. — See  note  27. 


intended  to  formulate  a  rule  for  the  regu- 
lation of  interstate  and  foreign  commerce. 
Standard  Oil  Co.  v.  United  States,  221  U. 
S.   1,   55   L.   Ed.  619,   31   S.   Ct.   502. 

Contract  of  manufacturer  with  most  cf 
jobbers  and  druggists  of  the  country. — 
Contracts  between  a  manufacturer  and 
most  of  the  jobbers  and  wholesale  drug- 
gists and  the  majority  of  the  retail  drug- 
gists of  the  country  having  for  their  pur- 
pose the  control  of  the  entire  trade,  re- 
late directly  to  interstate  as  well  as  to 
intrastate  trade,  and  operate  to  restrain 
trade  and  commerce  among  the  several 
states.  ]Miles  Medical  Co.  v.  Park  &  Sons 
Co..  220  U.  S.  373,  400,  55  L.  Ed.  502,  31 
S.   Ct.  376. 

440-24a.  Combinations  doing  negligible 
amount  of  intrastate  business. — Although 
some  of  the  means  whereby  the  interstate 
traffic  is  to  be  destroyed  are  acts  within 
a  state,  and  some  of  them  are,  in  them- 
selves, as  a  part  of  their  obvious  purpose 
and  effect,  beyond  the  scope  of  federal 
authority,  still  the  acts  must  be  considered 
as  a  whole,  and  the  plan  is  open  to  con- 
demnation, notwithstanding  a  negligible 
amount  of  intrastate  business  might  be 
effected  in  carrying  ii  oat.  If  the  purposes 
of  the  combination  are  to  prevent  anj-  in- 
terstate transportation  at  all,  the  fact  that 
the  means  operated  at  one  end  before 
physical  transportation  commenced,  and 
at  the  other  end  after  the  physical  trans- 
portation ended,  was  immaterial.  Loewe 
V.  Lawlor,  208  U.  S.  274.  301,  52  L.  Ed. 
488,  28  S.  Ct.  301.  See  Continental  Wall 
Paper  Co.  v.  Voight  &  Sons  Co.,  212  U. 
S.  227,  53  L.  Ed.  48i3,  29  S.  Ct.  280. 

A  combination  by  members  of  labor  or- 
ganizations to  destroy  an  existing  inter- 
state traffic  in  hats  by  preventing  the 
manufacturers,  through  the  instrumen- 
tality of  a  boycott,  from  manufacturing 
hats  intended  for  transportation  beyond 
the  state,  and  to  prevent  their  vendees 
in  other  states  from  reselling  the  hats  so 
transported,  and  from  further  negotiating 
with  the  manufacturers  for  the  purchase 
and  transportation  of  such  hats  from  the 
place  of  manufacture  to  the  various  places 
of  destinations,  is  a  combination  "in  re- 
straint of  trade  or  commerce  among  the 
several  states,"  within  the  meaning  of 
Antitrust  Act  July  2,  1890,  c.  647,  26 
Stat.  209    [U.   S.   Comp.   St.   1901,  p.  3200], 

12  U  S  Enc— 5G  i 


the  members  of  which  are  liable  for  the 
threefold  damages  which,  under  section  7 
of  that  act,  may  be  recovered  by  those 
injured  in  business  or  property  by  viola- 
tions of  the  act,  although  a  negligible 
amount  of  intrastate  business  may  be  af- 
fected in  carrying  out  the  combination, 
and  although  the  members  of  the  combi- 
nation are  not  themselves  engaged  in  in- 
terstate commerce.  Judgment  (C.  C. 
1906).  148  F.  924,  reversed.  Loewe  v. 
Lawlor,  208  U.  S.  274,  52  L.  Ed.  488,  28  S. 
Ct.   301. 

440-24b.  Conspiracy  to  act  in  another 
jurisdiction. — American  Banana  Co.  v. 
United  Fruit  Co.,  213  U.  S.  347,  53  L.  Ed. 
826,  833,  29   S.   Ct.  511. 

Acts  done  by  a  domestic  corporation 
outside  the  United  States,  which  largely 
depend  for  their  efficacy  upon  the  co- 
operation, in  a  conspiracy  to  drive  a  rival 
out  of  business,  of  soldiers  and  officials  in 
Costa  Rica,  acting  under  governmental 
sanction,  in  territory  over  which  that  state 
exercises  a  de  facto  sovereignty,  can  not 
be  made  the  basis  of  the  action  to  re- 
cover threefold  damages  authorized  by 
the  Sherman  Antitrust  Act  (Act  July 
2.  1890,  c.  647.  §  7,  26  Stat.  210  [U.  S. 
Comp.  St.  1901,  p.  3202]),  on  behalf  of 
those  injured  in  their  business  by  reason 
of  violations  of  that  statute.  Judgment 
(C.  C.  A.  1908).  166  F.  261,  affirmed. 
American  Banana  Co.  v.  United  Fruit 
Co.,  213  U.  S.  347,  53  L.  Ed.  826,  29  S.  Ct. 
511. 

441-25.  Restraint  must  be  direct.— 
Standard  Oil  Co.  v.  United  States,  221  U. 
S.   1.   55   L.   Ed.   619,   31   S.   Ct.   502. 

444-27.  Includes  all  restraints. — Any 
combination  whatever  to  secure  action 
which  essentially  obstructs  the  free  flow 
of  commerce  between  the  states,  or  re- 
stricts, in  that  regard,  the  liberty  of  a 
trader  to  engage  in  business,  is  within  the 
inhibition  of  Antitrust  Act  July  2,  1800, 
c.  647,  26  Stat.  209  [U.  S.  Comp.  St.  1901, 
p.  3200],  against  combinations  "in  re- 
straint of  trade  or  commerce  among  the 
several  states."  Judgment  (C.  C.  1906), 
148  F.  924,  reversed.  Loewe  v.  Lawlor. 
208  U.  S.  274,  52  L.  Ed.  488.  28  S.  Ct.  301. 

"United  States  v.  Trans-Missouri 
Freight  Ass'n,  166  U.  S.  290.  41  L.  Ed. 
1007;  United  States  v.  Joint  Traffic  Ass'n, 
171  U.  S.  505,  43  L.  Ed.  259;  and  Northern 


444 


MONOPOLIES  AND   CORPORATE   TRUSTS.       Vol.  VIIL 


Rule  of  Reason. — The  question  as  to  whether  or  not  any  particular  act  or 
contract  is  within  contemplation  of  the  Antitrust  Act  must  be  determined  by 
the  light  of   reason. 2"^     Under  this  rule  there  must  be  an  undue   restraint  of 


Securities  Co.  v.  United  States,  193  U.  S. 
197,  48  L.  Ed.  679,  hold  in  effect  that  the 
antitrust  law  has  a  broader  application 
than  the  prohibition  of  restraints  of  trade 
unlawful  at  common  law.  Thus,  in  the 
United  States  z'.  Trans-Missouri  Freight 
Ass'n,  166  U.  S.  290,  41  L.  Ed.  1007,  it  was 
said  that,  'assuming  that  agreements  of 
this  nature  are  not  void  at  common  law, 
and  that  the  various  cases  cited  by  the 
learned  courts  below  show  it,  the  answer 
to  the  statement  of  their  validity  is  to  be 
found  in  the  terms  of  the  statute  under 
consideration;'  and  in  the  Northern 
Securities  Co.  v.  United  States,  193  U.  S. 
197,  331,  48  L.  Ed.  679,  that,  'the  act  de- 
clares illegal  every  contract,  combination 
or  conspiracy,  in  whatever  form,  of  what- 
ever nature,  and  whoever  may  be  the  par- 
ties to  it,  which  directly  or  necessarily 
operates  in  restraint  of  trade  or  com- 
merce among  the  several  states.'  "  Loewe 
V.  Lawlor.  208  U.  S.  274,  297,  52  L.  Ed. 
488,  28  S.  Ct.  301.  See  Shawnee  Compress 
Co.  V.  Anderson,  209  U.  S.  423,  52  L.  Ed. 
865,   28    S.    Ct.   572. 

Patents. — "The  general  rule  is  absolute 
freedom  in  the  use  or  sale  of  rights  under 
the  patent  laws  of  the  United  States.  The 
verj^  object  of  these  laws  is  monopoly, 
and  the  rule  is,  with  few  exceptions,  that 
any  conditions  which  are  not  in  their  very 
nature  illegal  with  regard  to  this  kind  of 
property,  imposed  by  the  patentee  and 
agreed  to  by  the  licensee  for  the  right  to 
manufacture  or  use  or  sell  the  article, 
will  be  upheld  by  the  courts.  The  fact 
that  the  conditions  in  the  contracts  keep 
up  the  monopoly  or  fix  prices  does  not 
render  them  illegal."  Henry  v.  Dick  Co., 
224  U.  S.  1,  29,  56  L.  Ed.  645,  32  S.  Ct. 
364. 

Even  though  contracts  relating  to  pat- 
ents include  interstate  commerce  within 
their  provisions  and  restrain  interstate 
trade,  the  Antitrust  Act  of  July  2,  1890, 
does  not  refer  to  that  kind  of  a  restraint 
of  interstate  commerce  which  may  arise 
from  reasonable  and  legal  conditions  im- 
posed upon  the  assignee  or  licensee  of  a 
patent  by  the  owner  thereof,  restricting 
the  terms  upon  which  the  article  may  be 
used  and  the  price  to  be  deinanded  there- 
for. Henry  v.  Dick  Co.,  224  U.  S.  1,  30, 
56   L.    Ed.   645,    32    S.   Ct.   364. 

444-27a.  Rule  of  reason. — The  standard 
of  reason  which  had  theretofore  been  ap- 
plied at  the  common  law  and  in  the  United 
States  in  dealing  with  subjects  of  the 
character  embraced  by  the  prohibitions  of 
Act  July  2,  1890,  c.  647,  §§  1.  2,  26  Stat. 
209  (U.  S.  Comp.  St.  1901,  p.  3200),  against 
combinations  in  restraint  of  interstate  or 
foreign   trade   or   commerce,    or   monopo- 


lization or  attempts  to  monopolize  any 
part  of  such  trade  or  commerce,  was  in- 
tended to  be  the  measure  used  for  the 
purpose  of  determining  whether,  in  a 
given  case,  a  particular  act  had  or  had 
not  brought  about  the  wrong  against 
which  the  statute  provided.  Standard  Oil 
Co.  V.  United  States.  221  U.  S.  1.  55  L. 
Ed.  619.  31  S.  Ct.  502.  affirming  judgment 
in  34  L.  R.  A.  (X.  S.)  834  (C.  C.  1900), 
United  States  v.  Standard  Oil  Co.,  173 
Fed.  177;  United  States  v.  American  To- 
bacco Co.,  221  U.  S.  106,  55  L.  Ed.  663,  31 
S.  Ct.  632:  reversing  decree  (C.  C.  1908), 
164   Fed.   700. 

As  the  acts  which  may  come  under  the 
classes  stated  in  the  first  section  of  the 
.A.ntitrust  Act  and  the  restraint  of  trade 
to  which  that  section  applies  are  not  spe- 
cifically enumerated  or  defined,  it  is  obvi- 
ous that  judgment  must  in  every  case  be 
called  into  play  in  order  to  determine 
whether  a  particular  act  is  embraced 
within  the  statutory  classes,  and  whether 
if  the  act  is  within  such  classes  its  na- 
ture or  effect  causes  it  to  be  a  restiainc 
of  trade  within  the  intendment  of  the  act. 
Standard  Oil  Co.  v.  United  States,  221  U. 
S.  1.  63,  55  L.   Ed.  619,  31   S.  Ct.  502. 

The  merely  generic  enumeration  which 
the  statute  makes  of  the  acts  to  which  it 
lefers  and  the  absence  of  any  definition 
of  restraint  of  trade  as  used  in  the  stature 
lerives  room  for  but  one  conclusion,  which 
is,  that  it  was  expressly  designed  not  to 
unduly  limit  the  application  of  the  act  by 
precise  lefinilion,  bi:t  while  clearly  fixing 
a  standa'-rl,  that  is.  by  defining  the  ulterior 
boundaries  which  could  not  be  trans- 
gressed with  impunity,  to  leave  it  to  be 
determined  by  the  light  of  reason,  'juided 
by  the  principles  of  law  and  the  duty  to 
applv  and  enforce  the  public  policy  em- 
bodied in  the  stalutc.  in  every  given  case 
whether  any  particular  act  or  contract 
was  within  the  contemplation  of  the  stat- 
ute. Standard  Oil  Co.  v.  United  States, 
221  U.  S.  1,  63.  55  L.  Ed.  619,  31  S.  Ct. 
502. 

As  the  statute  did  not  define  the  words 
restraint  of  trade,  it  becomes  necessary 
to  construe  those  words,  a  duty  which  can 
only  be  discharged  by  a  resort  to  reason. 
United  States  v.  American  Tobacco  Co., 
221  U.  S.  106,  178,  55  L.  Ed.  663,  31  S.  Ct. 
632;  Standard  Oil  Co.  v.  United  States, 
221  U.  S.  1,  55  L.  Ed.  619,  31  S.  Ct.  502. 

In  the  first  section  of  the  Antitrust 
Act  of  July  2,  1890,  providing  that  "Every 
contract,  combination  in  the  form  of 
trust  or  otherwise,  or  conspiracy  in  re- 
straint of  trade  or  commerce  *  *  *  is 
hereby  declared  to  be  illegal,"  as  the  con- 
tracts  or  acts  embraced  in  the  provision 


882 


\'ol.  MIL       MOXOPOLIES  AXD   CORPORATE   TRUSTS. 


444 


were  not  expressly  defined,  since  the 
enumeration  addressed  itself  simply  to 
classes  of  acts,  those  classes  being  broad 
enough  to  embrace  every  conceivable 
contract  or  combination  which  could  be 
made  concerning  trade  or  commerce  or 
the  subjects  of  such  commerce,  an"d  thus 
caused  any  act  done  by  any  of  the  enu- 
merated methods  anywhere  in  the  whole 
field  of  human  activity  to  be  illegal  if  in 
restraint  of  trade,  it  inevitably  follows 
that  the  provision  necessarily  called  for 
the  exercise  of  judgment  which  required 
that  some  standard  should  be  resorted  to 
for  the  purpose  of  determining  whether 
the  prohibitions  contained  in  the  statute 
had  or  had  not  in  any  given  case  been 
violated.  Standard  Oil  Co.  v.  United 
vStates,  221  U.  S.  1,  59,  55  L.  Ed.  619,  31 
S.    Ct.    502. 

Prior  cases  distinguished. — In  referring 
to  statements  in  the  United  States  v. 
Trans-IMissouri  Freight  Ass'n,  166  U.  S. 
290,  41  L.  Ed.  1007,  and  United  States  v. 
Joint  Traffic  Ass'n,  171  U.  S.  505,  43  L. 
Ed.  259,  that  all  combinations  and  con- 
tracts in  restraint  of  trade  or  commerce 
are  prohibited  in  whatever  form,  the 
court  said:  "As  the  cases  can  not  by  any 
possible  conception  be  treated  as  au- 
thoritative without  the  certitude  that 
reason  was  resorted  to  for  the  purpose  of 
deciding  them,  it  follows  as  a  matter  of 
course  that  it  must  have  been  held  by  the 
light  of  reason,  since  the  conclusion 
could  not  have  been  otherwise  reached, 
that  the  assailed  contracts  or  agreements , 
were  within  the  general  enumeration  of 
the  statute,  and  that  the  operation  and 
effect  brought  about  the  restraint  of  trade 
which  the  statute  prohibited.  This  being 
inevitable,  the  deduction  can  in  reason 
be  only  this:  That  in  the  cases  relied 
upon  it  having  been  found  that  the  acts 
complained  of  were  within  the  statute 
and  operated  to  produce  the  injuries 
which  the  statute  forbade,  that  resort  to 
reason  was  not  permissible  in  order  to 
allow  that  to  be  done  which  the  statute 
prohibited.  This  being  true,  the  rulings 
in  the  cases  relied  upon  when  rightly  ap- 
preciated were  therefore  this  and  nothing 
more:  That  as  considering  the  contracts 
or  agreements,  their  necessary  effect  and 
the  character  of  the  parties  by  whom  they 
were  made,  thev  were  clearly  restraints  of 
trade  within  the  purview  of  the  statute, 
they  could  not  be  taken  out  of  that  cate- 
gory by  indulging  in  general  reasoning 
as  to  the  expediency  or  nonexpediency  of 
having  made  the  contracts  or  the  wisdom 
or  want  of  wisdom  or  the  statute  which 
prohibited  their  being  made.  That  is  to 
say,  the  cases  but  decided  that  the  na- 
ture and  character  of  the  contracts,  creat- 
ing as  they  did  a  conclusive  presumption 
which  brought  them  within  the  stavute. 
such  result  was  not  to  be  disregarded 
by  the  substitution  of  a  judicial  apprecia- 


tion of  what  the  law  ought  to  be  for  the" 
plain  judicial  duty  of  enforcing  the  law 
as  it  was  made."  Standard  Oil  Co.  v.- 
United  States,  221  U.  S.  1,  64,  55  L.  Ed. 
619,  31  S.  Ct.  502.  See  United  States  v. 
American  Tobacco  Co.,  221  U.  S.  106,  178, 
55    L.    Ed.   663,   31    S.    Ct.   632. 

"If  the  criterion  by  which  it  is  to  be 
determined  in  all  cases  whether  every' 
contract,  combination,  etc..  is  a  restralftt 
of  trade  within  the  intendment  of  the  law, 
is  the  direct  or  indirect  effect  of  the  acts 
involved,  then  of  course  the  rule  of  rea- 
son becomes  the  guide,  and  the  construc- 
tion which  we  have  given  the  statute,  in- 
stead of  being  refuted  by  the  cases  relied 
upon,  is  by  those  cases  demonstrated  to 
be  correct.  This  is  true,  because  as  the 
construction  which  we  have  deduced  from 
the  history  of  the  act  and  the  analysis  of 
its  text  is  simply  that  in  every  case  where 
it  is  claimed  that  an  act  or  acts  are  in 
violation  of  the  statute  the  rule  of  reason, 
in  the  light  of  the  principles  of  law  and 
the  public  policy  which  the  act  embodies, 
must  be  applied.  From  this  it  follows, 
since  that  rule  and  the  result  of  the  test 
as  to  direct  or  indirect,  in  their  ultimate 
aspect,  come  to  one  and  the  same  thing, 
that  the  difference  between  the  two  is 
therefore  only  that  which  obtains  be- 
tween things  which  do  not  differ  at  all." 
Standard  Oil  Co.  v.  United  States,  221  U. 
S.   1,   66,   55   L.   Ed.   619,   31    S.   Ct.   502. 

In  reference  to  question  as  to  how  it 
was  that  much  consideration  was  given 
to  the  subject  of  whether  the  agreement 
or  combination  which  was  involved  in 
the  Freight  'Association  Case  could  be 
taken  out  of  the  prohibitions  of  the  stat- 
ute upon  the  theory  of  its  reasonableness, 
the  court  said:  "The  confusion  which 
gives  rise  to  the  question  results  from 
failing  to  distinguish  between  the  want  of 
power  .to  take  a  case  which  by  its  terms 
or  the  circumstances  which  surroimd  it, 
considering  among  such  circumstances 
the  character  of  the  parties,  is  plainly 
within  the  statute,  out  of  the  operation 
of  the  statute  by  resort  to  reason  in  effect 
to  establish  that  the  contract  ought  not 
to  be  treated  as  within  the  statute,  ?nd 
the  duty  in  every  case  where  it  becomes 
necessary  from  the  nature  and  character 
of  the  parties  to  decide  whether  it  was 
within  the  statute  to  pass  upon  that  ques- 
tion by  the  light  of  reason."  Standard 
Oil  Co.  V.  United  States,  221  U.  S.  1,  67, 
55   L.   Ed.  619,  31    S.   Ct.  502. 

In  Standard  Oil  Co.  v.  United  States, 
221  U.  S.  1.  67.  55  L.  Ed.  619,  31  _S.  Ct. 
502,  the  court  said:  "In  order  not  in  the 
slightest  degree  to  be  wanting  in  frank- 
ness, we  say  that  in  so  far.  however,  as 
by  separating  the  general  language  used 
in  the  opinions  of  the  Freight  Association 
and  Joint  Traffic  Caf.es  from  the  context 
and  the  subject  and  parties  with  which 
the  cases  were  concerned,  it  may  be  con- 


883 


444 


MONOPOLIES  AND   CORPORATE   TRUSTS.       Vol.  VIII. 


trade  to  bring  acts  or  contracts  within  the  purview  of  the  Antitrust  Act.^''''' 


ceived  that  the  language  referred  to  con- 
flicts with  the  construction  which  we 
give  the  statute,  they  are  necessarily  now 
limited  and  qualified." 

445-27b.  Undue  restraint  prohibited. — 
Only  undue  restraints  of  interstate  or  for- 
eign trade  or  commerce  are  prohibited  by 
the  provisions  of  Act  July  2,  1890,  c.  647, 
§§  1,  2,  26  Stat.  209  (U.  S.  Comp.  St.  1901, 
p.  3200),  declaring  illegal  every  contract, 
combination  in  the  form  of  trust  or  other- 
wise, or  conspiracy,  in  restraint  of  such 
trade  or  commerce,  and  making  guilty  of 
a  misdemeanor  every  person  who  shall 
monopolize  or  attempt  to  monopolize,  or 
combine  or  conspire  with  any  other  per- 
son or  persons  to  monopolize,  any  part  of 
such  trade  or  commerce.  Standard  Oil 
Co.  V.  United  States,  221  U.  S.  1,  55  L. 
Ed.  619,  31  S.  Ct.  502.  affirming  judgment 
(C.  C.  1909),  United  States  v.  Standard 
Oil  Co.   of  New  Jersey,  173   F.   177. 

Only  acts,  contracts,  agreements,  or 
combinations  which  operate  to  the  preju- 
dice of  the  public  interests  by  unduly  re- 
stricting competition,  or  unduly  obstruct- 
ing the  due  course  of  trade,  or  which, 
either  because  of  their  inherent  nature  or 
effect,  or  because  of  their  evident  purpose, 
injuriously  restrain  trade,  fall  within  the 
condemnation  of  Act  July  2,  1890,  c.  647, 
26  Stat.  209  (U.  S.  Comp.  St.  1901,  p. 
3200),  of  combinations  in  restraint  of  in- 
terstate or  foreign  trade  or  commerce,  or 
monopolization  or  attempts  to  monopolize 
any  part  of  such  trade  or  commerce. 
United  States  ?■.  American  Tobacco  Co., 
221  U.  S.  106,  55  L.  Ed.  663,  31  S.  Ct.  632, 
reversing  decree  (C.  C.  1908),  164  F.  700. 
See  Standard  Oil  Co.  v.  United  States, 
221  U.  S.  1,  55  L.  Ed.  619,  31  S.  Ct.  502. 

In  the  first  section  of  the  An^^itrust 
Act  of  July  2,  1890,  providing  that  "''Every 
contract,  combination  in  the  form  of  trust 
or  otherwise,  or  conspiracy  in  restraint  of 
trade  or  commerce  *  *  *  is  hereby  de- 
clared to  be  illegal,"  its  terms  show  that 
in  view  of  the  many  new  forms  of  con- 
tracts and  combinations  whicli  were  being 
evolved  from  existing  economic  con- 
ditions, it  was  deemed  essential  by  an 
all-embracing  enumeration  to  make  sure 
that  no  form  of  contract  or  combination 
by  which  an  undue  restraint  of  interstate 
or  foreign  commerce  was  brought  about 
could  save  such  restraint  from  condemna- 
tion. The  statute  under  this  view  evi- 
denced the  intent  not  to  restrain  the 
right  to  make  and  enforce  contracts, 
whether  resulting  from  combination  or 
otherwise,  which  did  not  unduly  restrain 
interstate  or  foreign  commerce,  but  to 
protect  that  commerce  from  being  re- 
strained by  methods,  whether  old  or  new, 
which  would  constitute  an  interference 
that  is  an  undue  restraint.     Standard  Oil 


Co.  V.   United   States,   221  U.   S.   1,  59,   55 
L.   Ed.  619,  31   S.  Ct.  502. 

"It  was  therefore  pointed  out  (in  Stand- 
ard Oil  Co.  V.  United  States,  221  U.  S.  1, 
55  L.  Ed.  6L9,  31  S.  Ct.  502)  that  the  stat- 
ute did  not  forbid  or  restrain  the  power 
to  make  normal  and  usual  contracts  to 
further  trade  by  resorting  to  all  normal 
methods,  whether  by  agreement  or  other- 
wise, to  accomplish  such  purpose.  In 
other  words,  it  was  held,  not  tliat  acts 
which  the  statute  prohibited  could  be 
removed  from  the  control  of  its  prohibi- 
tions by  a  finding  that  they  were  reason- 
able, but  that  the  duty  to  interpret  which 
inevitably  arose  from  the  general  char- 
acter of  the  term  restraint  of  trade  re- 
quired that  the  words  restraint  of  trade 
should  be  given  a  meaning  which  would 
not  destroy  the  individual  right  to  con- 
tract and  render  difficult  if  not  impossible 
any  movement  of  trade  in  the  channels  of 
interstate  commerce,  the  free  movement 
of  which  it  was  the  purpose  of  the  stat- 
ute to  protect."  United  States  v.  Ameri- 
can Tobacco  Co.,  221  U.  S.  103,  179,  55  L 
Ed.  663,  31  S.  Ct.  632. 

The  generic  character  of  the  prohibi- 
tions of  Act  July  2,  1890,  c.  647.  §§  ],  2, 
26  Stat.  209  (U.  S.  Comp.  St.  1901,  p. 
3200),  against  combinations  in  restraint 
of  interstate  or  foreign  trade  or  com- 
merce, and  monopolization  or  attempts 
to  monopolize  any  part  thereof,  covers 
every  conceivable  act  which  can  possibly 
come  within  the  spirit  or  purpose  of  the 
condemnation  of  the  law,  without  re- 
gard to  the  garb  in  which  such  acts  are 
clothed.  In  view  of  the  general  language 
of  the  statute  and  the  public  policy  which 
it  manifests,  there  is  no  possibility  of 
frustrating  that  policy  by  resorting  to  any 
disguise  or  subterfuge  of  form,  since  re- 
sort to  reason  renders  it  impossible  to 
escape  by  any  indirection  the  prohibitions 
of  the  statute.  United  States  z'.  Ameri- 
can Tobacco  Co.,  221  U.  S.  106,  55  L.  Ed. 
663,  31  S.  Ct.  632,  reversing  decree  (C.  C. 
1908),  164  Fed.  700;  Standard  Oil  Co.  v. 
United  States,  221  U.  S.  1,  55  L.  Ed.  619, 
31  S.  Ct.  502;  Waters-Pierce  Oil  Co.  z: 
Texas,  No.  1,  212  U.  S.  86,  53  L.  Ed.  417, 
29  S.   Ct.  220 

Control  of  oil  industry. — The  unifica- 
tion of  power  and  control  over  the  oil  in- 
dustry which  results  from  combining  in 
the  hands  of  a  holding  company  the  capi- 
tal stock  of  the  various  corporations  trad- 
ing in  petroleum  and  its  products  raises 
a  presumption  of  an  intent  to  exclude 
others  from  the  trade,  and  thus  centralize 
in  the  combination  a  perpetual  control  of 
the  movement  of  these  commodities  in 
the  channels  of  interstate  and  foreign 
commerce,  in  violation  of  the  prohibitions 
of  Act  July  2,  1890,  c.  647,  §§  1,  2,  26  Stat. 


S84 


Vol.  VIII.       MOXOPOLIES  AXD   CORPORATE  TRUSTS. 


444 


Extent  of  Monopoly. — See  note  28. 


209  (U.  S.  Comp.  St.  1901,  p.  ,3200),  against 
combinations  in  restraint  of  interstate  or 
foreign  trade  or  commerce,  or  monopo- 
lization or  attempt  to  monopolize  any 
part  of  such  trade  or  commerce.  This 
prima  facie  presumption  is  made  con- 
clusive by  considering  the  conduct  of  the 
persons  and  corporations.  Standard  Oil 
Co.  V.  United  States,  221  U.  S.  1,  55  L. 
Ed.  619,  31  S.  Ct.  502,  affirming  judgment 
(C.  C.  1909),  United  States  z:  Standard 
Oil  Co..  173   Fed.  177. 

"The  inference  that  no  attempt  to  mo- 
nopolize could  have  been  intended,  and 
that  no  monopolization  resulted  from  the 
acts  complained  of,  since  it  is  established 
that  a  very  small  percentage  of  the  crude 
oil  produced  was  controlled  by  the  com- 
bination, is  unwarranted.  As  substantial 
power  over  the  crude  product  was  the  in- 
evitable result  of  the  absolute  control 
which  existed  over  the  refined  product,  the 
monopolization  of  the  one  carried  with  it 
the  power  to  control  the  other,  and  if  the 
inferences  which  this  situation  suggests 
were  developed,  which  we  deem  it  un- 
necessary to  do,  they  might  well  serve  to 
add  additional  cogency  to  the  presump- 
tion of  intent  to  monopolize  which  we 
have  found  arises  from  the  unquestioned 
proof  on  other  subjects."  Standard  Oil 
Co.  r.  United  States,  221  U.  S.  1,  77,  55 
L.    Ed.    619.    31    S.    Ct.   502. 

444-28.  Unification  of  terminal  facilities. 
— The  combination  and  unification  of  the 
terminal  facilities  at  St.  Louis  under  the 
exclusive  ownership  and  control  of  less 
than  all  the  railway  companies  under  com- 
pulsion to  use  them,  the  inherent  condi- 
tions being  such  as  to  prohibit  any  other 
reasonable  means  of  railway  access  to 
that  city,  violates  the  provisions  of  the 
Sherman  Antitrust  Act  of  July  2,  1890, 
§§  1,  2,  in  that  it  constitutes  a  contract  or 
combination  in  restraint  of  commerce 
among  the  states,  and  an  attempt  to  mo- 
nopolize stich  commerce  which  must  pass 
through  the  gateway  at  St.  Louis.  United 
States  z:  Terminal  R.  Ass'n,  224  U.  S.  383, 
56    L.    Ed.    810,    32    S.    Ct.    507. 

The  mere  combining  of  several  inde- 
pendent terminal  systems  into  one  may 
not  operate  as  a  restraint  upon  the  inter- 
state commerce  which  must  use  them.  In 
ordinary  circumstances,  a  number  of  in- 
dependent companies  might  combine  for 
the  purpose  of  controlling  or  acquiring 
terminals  for  their  common  but  exclusive 
use.  In  such  cases  other  companies  might 
be  admitted  upon  terms  or  excluded  alto- 
gether. If  such  terms  were  too  onerous, 
there  would  ordinarilj^  remain  the  right 
and  power  to  construct  their  own  termi- 
nals. But  the  situation  at  St.  Louis  is 
most  extraordinary;  physical  or  topo- 
graphical   condition    peculiar    to     the      lo- 


cality, which  is  advanced  as  a  prime  justi- 
fication for  a  unified  system  of  terminals, 
constitutes  a  most  obvious  reason  why 
such  a  unified  system  is  an  obstacle,  a 
hindrance,  and  a  restriction  upon  inter- 
state commerce,  unless  it  is  the  impartial 
agent  of  all  who,  owing  to  conditions, 
are  under  such  compulsion,  as  here  ex- 
ists, to  use  its  facilities.  United  States 
c'.  Terminal  R.  Ass'n,  224  U.  S.  383,  53 
L.   Ed.  810,  32   S.   Ct.  507. 

"It  is  not  contended  that  the  unification 
of  the  terminal  facilities  of  a  great  city 
where  many  railroad  systems  center  is, 
under  all  circumstances  and  conditions,  a 
combination  in  restraint  of  trade  or  com- 
merce. Whether  it  is  a  facility  in  aid  of 
interstate  commerce  or  an  unreasonable 
restraint,  forbidden  by  the  act  of  con- 
gress, as  construed  and  applied  by  this 
court  in  the  cases  of  Standard  Oil  Co.  z: 
United  States,  221  U.  S.  1,  55  L.  Ed.  619, 
31  S.  Ct.  502,  and  United  States  z:  Ameri- 
can Tobacco  Co.,  221  U.  S.  106,  55  L.  Ed. 
663,  31  S.  Ct.  632,  will  depend  upon  the 
intent  to  be  inferred  from  the  extent  of 
the  control  thereby  secured  over  instru- 
mentalities which  such  commerce  is  un- 
der compulsion  to  use,  the  method  by 
which  such  control  has  been  brought 
about,  and  the  manner  in  which  that  con- 
trol has  been  e.xerted."'  United  States  v. 
Terminal  R.  Ass'n,  224  U.  S.  383,  56  L.  Ed. 
810.  32  S.   Ct.  507. 

If  the  combination  of  two  or  more 
mere  terminal  companies  into  a  single 
system  does  not  violate  the  prohibition  of 
the_  statute  against  contracts  and  combi- 
nations in  restraint  of  interstate  com- 
merce, it  is  because  such  combination  may 
be  of  the  greatest  public  utility.  But 
when,  as  here,  the  inherent  conditions  are 
such  as  to  prohibit  any  other  reasonable 
means  of  entering  the  city,  the  combina- 
tion of  every  such  facility  under  the  ex- 
clusive ownership  and  control  of  less  than 
all  of  the  companies  under  com.pulsion  to 
use  them  violates  both  the  first  and 
second  sections  of  the  act.  in  that  it  con- 
stitutes a  contract  or  combination  in  re- 
straint of  commerce  among  the  states,  and 
an  attempt  to  monopolize  commerce 
among  the  states  which  must  pass 
through  the  gateway  at  St.  Louis.  That 
these  facilities  were  not  to  be  acquired 
for  the  benefit  of  any  railroad  company 
which  might  desire  a  joint  use  thereof 
was  made  plain  by  a  provision  in  the  con- 
tract referred  to,  which  stipulated  that 
other  railroad  companies  not  named 
therein  as  proprietary  companies  might 
only  be  admitted  "to  joint  use  of  said 
terminal  system  on  unanimous  consent, 
but  not  otherwise,  of  the  directors  of  the 
first  party  and  on  payment  of  such  a  con- 
sideration as  they  may  determine,  and  on 


885 


445 


MONOPOLIES  AND  CORPORATE  TRUSTS.        Vol.  VIII. 


Form  of  Combination  Immaterial. — See  note  29. 


signing  this  agreement,''  etc.  Inasmuch 
as  the  directors  of  the  terminal  company 
consisted  of  one  representative  of  each 
of  the  proprietary  companies,  selected  by 
itself,  it  is  plain  that  each  of  said  com- 
panies had  and  still  has  a  veto  upon  any 
joint  use  or  control  of  terminals  by  any 
nonproprietary  companj-.  The  terminal 
properties  in  question  are  not  so  con- 
trolled and  managed,  in  view  of  the  inher- 
ent local  conditions,  as  to  escape  condem- 
nation as  a  restraint  upon  commerce. 
They  are  not  under  a  common  control  and 
ownership.  Nor  can  this  be  brought  about 
unless  the  prohibition  against  the  admis- 
sion of  other  companies  to  such  control  is 
stricken  out  and  provision  made  for  the 
admission  of  any  company  to  an  equal 
control  and  inanagement  upon  an  equal 
basis  with  the  present  proprietary  com- 
panies. United  States  v.  Terminal  R. 
Ass'n,  224  U.  S.  383,  56  L.  Ed.  810,  32  S. 
Ct.   507. 

"Plainly  the  combination  which  has  oc- 
curred would  not  be  an  illegal  restraint 
under  the  terms  of  the  statute  if  it  were 
what  is  claimed  for  it,  a  proper  terminal 
association  acting  as  the  impartial  agent 
of  every  line  which  is  tmder  compulsion 
to  use  its  instrumentalities.  If,  as  we  have 
pointed  out,  the  violation  of  the  statute, 
in  view  of  the  inherent  physical  condi- 
tions, grows  out  of  administrative  con- 
ditions which  may  be  eliminated  and  the 
obvious  advantages  of  unification  pre- 
served, such  a  modification  of  the  agree- 
ment between  the  terminal  company  and 
the  proprietary  companies  as  shall  con- 
stitute the  fonner  the  bona  fide  agent  and 
servant  of  every  railroad  line  which  shall 
use  its  facilities,  and  an  inhibition  of  cer- 
tain methods  of  administration  to  which 
we  have  referred,  will  amply  vindicate 
the  wise  purpose  of  the  statute,  and  will 
preserve  to  the  public  a  system  of  great 
public  advantage."  United  States  v. 
Terminal  R.  Ass'n,  224  U.  S.  383,  56  L. 
Ed.    810,   32    S.    Ct.   507. 

Domination  and  control  of  tobacco 
trade. — The  acts,  contracts,  agreements, 
combinations,  etc.,  in  this  case  were  of 
such  an  unusual  and  wrongful  character 
as  to  bring  them  within  the  prohibitions 
of  the  law.  These  conclusions  are  inevita- 
ble, not  because  of  the  vast  amount  of 
property  aggregated  by  the  combination, 
not  because  alone  of  the  many  corpora- 
tions which  the  proof  shows  were  imited 
by  resort  to  one  device  or  another. 
Again,  not  alone  because  of  the  dominion 
and  control  over  the  tobacco  trade  which 
actually  exists,  but  because  the  conclusion 
of  wrongful  purpose  and  illegal  combina- 
tion appears  to  be  overwhelmingly  estab- 
lished by  the  following  considerations: 
a.    By  the  fact  that  the  very  first  organ- 


ization or  combination  was  impelled  by 
a  previously  existing  fierce  trade  war,  evi- 
dently inspired  by  one  or  more  of  the 
minds  which  brought  about  and  became 
parties  to  that  combination,  b.  Because, 
immediately  after  that  combination  and 
the  increase  of  capital  which  followed,  the 
acts  which  ensued  justify  the  inference 
that  the  intention  existed  to  use  the 
power  of  the  combination  as  a  vantage 
grotind  to  further  monopolize  the  trade 
in  tobacco  by  means  of  trade  conflicts 
designed  to  injure  others,  either  by  driv- 
ing competitors  out  of  the  business  or 
compelling  them  to  become  parties  to  a 
combination — a  purpose  whose  execution 
was  illustrated  by  the  plug  v>^ar  which 
ensued  and  its  results,  by  the  snuf¥  war 
which  followed  and  its  results,  and  by 
the  conflict  which  immediately  followed 
the  entry  of  the  combination  in  England 
and  the  division  of  the  world's  business 
by  the  two  foreign  contracts  which  en- 
sued, c.  By  the  ever  present  manifesta- 
tion which  is  exhibited  of  a  conscious 
wrongdoing  by  the  form  in  which  the 
various  transactions  were  em.bodied  from 
the  beginning,  ever  changing  but  ever  in 
sul)stance  the  same.  Now  the  organiza- 
tion of  a  new  company,  now  the  control 
exerted  by  the  taking  of  stock  in  one  or 
another  or  in  several,  so  as  to  obscure 
the  result  actually  attained,  nevertheless 
uniform,  in  their  manifestations  of  the 
purpose  to  restrain  others  and  to  monopo- 
lize and  retain  power  in  the  hands  of  the 
few  who,  it  would  seem,  from  the  be- 
ginning contemplated  the  masterj'-  of  the 
trade  wliich  practically  followed,  d.  By 
tlie  gradual  absorption  of  control  over  all 
the  elements  essential  to  the  successful 
manufacture  of  tobacco  products,  and 
placing  such  control  in  the  hands  of 
seemingly  independent  corporations  serv- 
ing as  perpetual  barriers  to  the  entry  of 
others  into  the  tobacco  trade,  e.  By  per- 
sistent expenditure  of  millions  upon  mil- 
lions of  dollars  in  buving  out  plants,  not 
for  the  purpose  of  utilizing  them,  but  in 
order  to  close  them  up  and  render  them 
u.'^eless  for  the  purpose  of  trade,  f.  By 
the  constantly  recurring  stipulations, 
whose  legality,  isolatedly  viewed,  we  are 
not  considering,  by  which  numbers  of 
persons,  whether  manufacturers,  stock- 
holders or  employees,  were  required  to 
bind  themselves,  generally  for  long 
periods,  not  to  compete  in  the  future. 
United  States  f.  American  Tobacco  Co., 
221  U.  S.  106,  55  L.  Ed.  663.  31  S.  Ct.  632 
445-29.  Manufacturer  restricting  sale  of 
products. — Contracts  between  a  manufac- 
turer and  all  dealers  whom  he  permits  to 
sell  his  products,  comprising  most  of  the 
dealers  in  similar  articles  throughout  the 
countr}-,  which   fix  the  price   for  all  sale.*^. 


886 


\"ol.  MIL        MOXOPOLIES  AXD   CORPORATE   TRUSTS. 


445-447 


4.  Pleading  and  Practice — a.  Criminal  Prosecution. — Limitations  of  Ac- 
tions.— A  special  plea  of  the  statute  of  limitations  is  not  good  as  against  an 
indictment  charging  a  conspiracy  to  restrain  or  monopolize  trade,  in  violation 
of  the  Sherman  Act  of  July  2,  1890,  by  improperly  excluding  a  competitor  from 
business,  although  the  conspiracy  is  alleged  to  have  been  formed  on  a  specified 
date,  which  was  more  than  three  years  before  the  finding  of  the  indictment, 
where  such  indictment,  consistently  with  the  other  facts,  alleges  that  the  con- 
spiracy continued  to  the  date  of  its  presentment.^^^ 

b.  Cii^il  Reynedies — (2)  Injunctions. — Relief  to  Be  Afforded  in  General. 
■ — The  relief  to  be  granted  where  a  combination  has  been  found  to  violate  the 
prohibitions  of  the  Act  of  July  2,  1890,  c.  647,  26  Stat.  209  (U  S.  Comp.  St. 
1901,  p.  3200),  against  combinations  in  restraint  of  interstate  or  foreign  trade 
or  commerce,  and  monopolization  or  attempts  to  monopolize  any  part  thereof, 
should  be  dictated  by  the  duty  of  giving  complete  and  efficacious  effect  to  such 
prohibitions,  the  accomplishment  of  this  result  with  as  little  injury  as  possible 
to  the  interests  of  the  general  public,  ^nd  a  proper  regard  for  the  vast  interests 
of  private  property  which  may  have  become  vested  in  many  persons  as  the 
result  of  the  acquisition  of  stock  or  securities  of  the  combination  without  any 
t'uiltv  knovvledge  or  intent.^°'' 


whether  at  wholesale  or  retail,  operate 
as  a  restraint  of  trade,  unlawful  both  at 
common  law,  and,  as  to  interstate  com- 
merce, under  .\ntit-rust-  Act  July  2.  1S90. 
26  Stat.  209  (U.  S.  Comp.  St."  1901,  p. 
3200),  even  though  such  products  may  be 
proprietary  medicines  made  under  secret 
formulae.  Nor  were  the  contracts  valid 
on  the  ground  that  they  related  to  the 
products  of  his  own  manufacture.  Miles 
Medical  Co.  v.  Park  &  Sons  Co.,  220  U. 
S.   373,   .5.5  L.   Ed.   502,  31   S.   Ct.  376. 

A  restraint  of  trade  which  would  be 
unlawful  as  to  other  manufactured  ar- 
ticles can  not  be  justified  because  the  ar- 
ticle in  question  is  a  proprietary  medicine 
made  under  a  secret  formula.  ]\Iiles  Med- 
ical Co.  v.  Park  &  Sons  Co..  220  U.  S.  373, 
55  L.  Ed.  502,  31  S.  Ct.  376.  affirming  judg- 
ment  (1908),  164  F.  803.  90  C.  C.  A.  579. 

Agreements  or  combinations  between 
dealers,  having  for  their  sole  purpose  the 
destruction  of  competition  and  the  fixing 
of  prices,  are  injurious  to  the  public  in- 
terest and  void.  They  are  not  saved  by 
the  advantages  which  the  participants  ex- 
pect to  derive  from  the  enhanced  price  to 
the  consumer.  Where  commodities  have 
passed  into  the  channels  of  trade  and  are 
owned  by  dealers,  the  validity  of  agree- 
ments to  prevent  competition  and  to  main- 
tain prices  is  not  to  be  determined  by  the 
circumstances  whether  thej^  were  pro- 
duced by  several  manufacturers  or  by 
one,  or  whether  they  were  previously 
owned  by  one  or  by  many.  The  com- 
plainant having  sold  its  product  at  prices 
satisfactory  to  itself,  the  public  is  en- 
titled to  whatever  advantage  may  be  de- 
rived from  competition  in  the  subsequent 
traffic.  I^Iiles  Medical  Co.  v.  Park  &  Sons 
Co.,  220  U.  S.  373,  408,  55  L.  Ed.  502,  31 
S.   Ct.  376. 

The    manufacturer    bv   rule    and    notice. 


in  the  absence  of  contract  or  statutory 
right,  even  though  the  restriction  be 
known  to  purchasers,  fix  prices  for  future 
sales.  It  has  been  held  by  this  court  that 
no  such  privilege  exists  under  the  copy- 
right statutes,  although  the  owner  of  the 
copyright  has  the  sole  right  to  vend 
copies  of  the  copyrighted  production. 
Bobbs-Merrill  Co.  v.  Straus,  210  U.  S. 
339.  52  L.  Ed.  1086,  28  S.  Ct.  722.  What- 
ever right  the  manufacturer  may  have  to 
project  his  control  beyond  his  'own  sales 
must  depend,  not  upon  an  inherent  power 
incident  to  production  and  original  owner- 
ship, but  upon  agreement.  Miles  Medical 
Co.  V.  Park  &  Sons  Co.,  220  U.  S.  373, 
405.   55   L.   Ed.   502.   31    S.   Ct.   376. 

445-31a.  Limitation  of  actions. — United 
States  r.  Kissel.  218  U.  S.  601,  54  L.  Ed. 
116S,    31    S.    Ct.    124. 

Limitation  of  actions. — A  conspiracy  to 
restrain  or  monopolize  trade,  in  violation 
of  the  Sherman  Act  of  July  2,  1890  (26 
Stat,  at  L.  209,  chap.  647,  U.  S.  Comp. 
Stat.  1901,  p.  3200\  by  obtaining  control 
of  a  competitor  through  a  pledge  of  the 
majority  of  its  stock  to  secure  a  loan  to 
a  stockholder,  and  then  voting  to  suspend 
business  until  further  order  of  the  board 
of  directors,  continues,  so  fa**  as  the  stat- 
ute of  limitation  is  concerned,  so  long  as 
any  further  action  is  taken  in  furtherance 
of  the  conspiracy.  United  States  v.  Kis- 
sel, 218  U.  S.  601.  54  L.  Ed.  1168,  31  S.  Ct. 
124. 

447-35b.  Principles  determining  relief. 
— United  States  v.  American  Tobacco  Co., 
221  U.  S.  106,  55  L.  Ed.  663,  31  S.  Ct.  632. 
See.    also,    ante.    IN'JU.X'CTIOXS,    p.    657. 

Where  a  combination  has  been  formed 
to  violate  the  prohibitions  of  the  Anti- 
trust Act  of  July  2.  1890.  in  that  it  con- 
stitutes a  restraint  of  trade  within  the 
first  section,  and  an  attempt  to  monopo- 


447 


MONOPOLIES  AND   CORPORATE   TRUSTS.       Vol.  VIII. 


Proceedings  to  Effectuate  Decree  on  Dissolution  of  a  Combination. 

— An  injunction  will  be  awarded  restraining  extension  or  enlargement  of  power 
of  combination. 2^*=     The  court  below  was  directed  to  hear  the  parties,  by  evi- 


lize  or  a  monopolization  within  the 
second  section,  the  relief  to  be  afiforded 
necessarily  takes  a  two-fold  aspect— the 
character  of  the  permanent  relief  required 
and  the  nature  of  the  temporary  relief  es- 
sential to  be  applied  pending  the  work- 
ing out  of  permanent  relief  in  the  event 
that  it  be  found  that  it  is  impossible  un- 
der the  situation  to  at  once  rectify  such 
existing  wrongful  condition.  United  States 
V.  American  Tobacco  Co.,  221  U.  S.  106, 
185,   55   L.   Ed.   663,   31    S.   Ct.   632. 

"It  may  be  conceded  that  ordinarily 
where  it  was  found  that  acts  had  been 
done  in  violation  of  the  statute,  adequate 
measure  of  relief  would  result  from  re- 
straining the  doing  of  such  acts  in  the 
future.  Swift  &  Co.  v.  United  States, 
196  U.  S.  375,  49  L.  Ed.  518.  But  iri  a 
case  like  this,  where  the  condition  which 
has  been  brought  about  in  violation  of  the 
statute,  in  and  of  itself,  is  not  only  a  con- 
tinued attempt  to  monopolize,  but  also  a 
monopolization,  the  duty  to  enforce  the 
statute  requires  the  application  of  broader 
and  more  controlling  remedies.  As  penal- 
ties which  are  not  authorized  by  law  may 
not  be  inflicted  by  judicial  authority,  it 
follows  that  to  meet  the  situation  with 
which  we  are  confronted  the  application 
of  remedies  two-fold  in  character  be- 
comes essential:  1st.  To  forbid  the  do- 
ing in  the  future  of  acts  like  those  which 
we  have  found  to  have  been  done  in  the 
past  which  would  be  violative  of  the  stat- 
ute. 2.  The  exertion  of  such  measure  of 
relief  as  will  efifectually  dissolve  the  com- 
bination found  to  exist  in  violation  of  the 
statute,  and  thus  neutralize  the  extension 
and  continually  operating  force  which  the 
possession  of  the  power  unlawfully  ob- 
tained has  brought  and  will  continue  to 
bring  about.  In  applying  remedies  for 
this  purpose,  however,  the  fact  must  not 
be  overlooked  that  injury  to  the  public 
by  the  prevention  of  an  undue  restraint 
on,  or  the  monopolization  of  trade  or 
commerce  is  the  foundation  upon  which 
the  prohibitions  of  the  statute  rests,  and 
moreover  that  one  of  the  fundamental 
purposes  of  the  statute  is  to  protect,  not 
to  destroy,  rights  of  property."  Standard 
Oil  Co.  V.  United  States,  221  U.  S.  1,  77, 
55  L.  Ed.  619,  31  S.  Ct.  502.  See  United 
States  V.  American  Tobacco  Co.,  221  U. 
S.    106,   55   L.   Ed.   663,   31    S.   Ct.   632. 

Injunction  or  receiver, — In  granting 
relief  for  a  violation  of  §§  1,  2  of  the  Anti- 
Trust  Act  of  July  2,  1890,  the  court  might 
at  once  resort  to  one  or  the  other  of  two 
general  remedies — a,  the  allowance  of  a 
permanent  injunction  restraining  the  com- 
bination as  a  universality  and  all  the  in- 
dividuals and  corporations  which   form  a 


part  of  or  co-operate  in  it  in  any  manner 
or  form  from  continuing  to  engage  in  in- 
terstate commerce  until  the  illegal  situa- 
tion be  cured,  a  ineasure  of  relief  which 
would  accord  in  substantial  effect  with 
that  awarded  below;  to  the  extent  that 
the  court  found  illegal  combinations  to 
exist;  or,  b,  to  direct  the  appointment  of 
a  receiver  to  take  charge  of  the  assets 
and  property  in  this  country  of  the  com- 
bination in  all  its  amifications  for  the  pur- 
pose of  preventing  a  continued  violation 
of  the  law,  and  thus  working  out  by  a 
sale  of  the  property  of  the  combination 
or  otherwise,  a  condition  of  things  which 
would  not  be  repugnant  to  the  prohibi- 
tions of  the  act.  But.  in  view  of  the 
extent  of  the  combination,  the  vast  field 
Vv'hich  it  covers,  the  all-embracing  char- 
acter of  its  activities  concerning  tobacco 
and  its  products,  to  at  once  stay  the 
movement  in  interstate  commerce  of  the 
products  which  the  combination  or  its 
co-operating  forces  produce  or  control 
might  inflict  infinite  injury  upon  the  pub- 
lic by  leading  to  a  stoppage  of  supply  and 
a  great  enhancement  of  prices;  and  be- 
cause the  extensive  power  which  would 
result  from  at  once  resorting  to  a  receiver- 
ship might  not  only  do  grievous  injury 
to  the  public,  but  also  cause  widespread 
and  perhaps  irreparable  loss  to  many  in- 
nocent people;  the  court  did  not  direct 
the  immediate  application  of  either  of 
these  remedies.  United  States  v.  Ameri- 
can Tobacco  Co.,  221  U.  S.  106,  186,  55  L. 
Ed.  663,  31   S.  Ct.  632. 

Decree  of  reorganization  adequate  re- 
lief.— Adequate  relief  from  a  combination 
of  terminal  facilities  which  offends  against 
the  provisions  of  the  Sherman  Anti-Trust 
Act  of  July  2,  1890,  §§  1,  2,  because  it 
places  such  facilities  under  the  exclusive 
ownership  and  control  of  less  than  all  the 
railroad  companies  under  compulsion, 
from  the  peculiar  local  topographical  con- 
ditions, to  use  them,  will  be  afforded  by 
a  decree  requiring  the  reorganization  of 
the  combination  so  that  it  will  act  as  the 
impartial  agent  of  every  railway  line 
which  must  use  the  terminal  instrumen- 
talities. United  States  v.  Terminal  R. 
Ass'n,  224  U.  S.  383,  56  L.  Ed.  810,  32  S. 
Ct.    507. 

447-35C.  Injunction. — Pending  the  work- 
ing out  of  a  plan  for  dissolving  a  combi- 
nation found  to  control  the  tobacco  in-  - 
dustrv  in  violation  oi  Antitrust  \ct  July 
2,  1890,  c.  647,  26  Stat.  209  (U.  S.  Comp. 
St.  1901,  p.  3200),  and  for  recreating  out 
of  the  elements  composing  it  a  condition 
which  will  not  be  repugnant  to  the  prohi- 
bitions of  the  act,  each  and  all  of  such  ele- 
ments should  be  restrained  from  doing  any 


888 


Vol.  VIII.       MONOPOLIES  AND  CORPORATE   TRUSTS. 


447 


dence  or  otherwise,  for  ascertainment  of  plan  of  dissolution  and  recreation.-^ ^"^ 
Time  for  Compliance  with  Decree. — The  magnitude  of  interests  involved 
in  a  combination  required  that  six  months  be  given  to  execute  a  decree  of  dis- 
solution.^'^*' 

Lawful  Continuance  of  Business  Pending-  Dissolution. — A  decree  of 
dissolution  which  enjoined  further  violations  of  the  Antitrust  Act  did  not  for- 
bid lawful  contracts  and  agreements.-^^^  Possible  serious  injuries  to  the  public 
forbade  in  the  first  instance  the  granting  of  a  permanent  injunction  against 
engaging   in    interstate   commerce, ^''^   and   the    same   consideration    forbade   the 


act  which  might  further  extend  or  enlarge 
the  pov/er  of  the  combina'tion  by  any 
means  or  device  whatsoever.  United 
States  V.  American  Tobacco  Co.,  221  U. 
S.  106,  55  L.  Ed.  663,  31  S.  Ct.  632,  re- 
versing decree    (C.   C),   164   F.   700 

Upon  failure  of  the  parties  to  come  to 
an  agreem.ent  in  substantial  accord  with 
the  opinion  and  decree  requiring  the  re- 
organization of  a  combination  of  termi- 
nal facilities  the  court  stated  that  it  would, 
after  hearing  the  parties  upon  a  plan  tor 
the  dissolution  of  the  combination,  inake 
such  order  and  decree  for  the  complete 
disjoinder  of  the  three  systems,  and  their 
future  operations  as  independent  systems 
as  might  be  necessary,  enjoining  the  de- 
fendants, singly  and  collectively,  from  any 
exercise  of  control  or  dominion  over  ei- 
ther of  the  said  terminal  systems,  or  their 
related  constituent  companies,  through 
lease,  purchase,  or  stock  control,  and  en- 
joining the  defendants  from  voting  any 
share  in  any  of  said  coinpanies  or  receiv- 
ing dividends,  directly  or  indirectly,  or 
from  any  future  combination  of  the  said 
system,  in  evasion  of  such  decree  or  any 
part  thereof.  United  Staves  v.  Terminal 
R.  Ass'n,  224  U.  S.  383,  56  L.  Ed.  810,  32 
S.   Ct.  507. 

447-35d.  Hearings. — To  give  effective 
force  to  a  decree  of  the  federal  supreme 
court  adjudging  that  a  combination  con- 
trolling the  tobacco  industry  offends 
against  Antitrust  Act  Julv  2,  1890,  c.  647, 
26  Stat.  209  (U.  S.  Comp.  St.  1901,  p.  3200), 
the  court  below  will  be  directed  to  hear 
the  parties,  by  evidence  or  otherwise,  as 
it  may  deem  proper,  for  the  purpose  of  as- 
certaining and  determining  upon  some 
plan  or  method  of  dissolving  the  combina- 
tion, and  of  recreating,  out  of  the  elements 
composing  it,  a  new  condition  which  shall 
not  be  repugnant  to  the  law.  United 
States  V.  American  Tobacco  Co.,  221  U. 
S.  106,  55  L.  Ed.  663,  31  S.  Ct.  632,  revers- 
ing decree  (C.  C.  1908),  164  F.  700. 

447-35e.  Six  months  to  execute  decree. 
— The  magnitude  of  the  interests  involved 
and  their  complexity  require  that  six 
months  be  given  in  which  to  execute  a  de- 
cree for  the  dissolution  of  a  holding  com- 
pany controlling  the  oil  industry  in  viola- 
tion of  Antitrust  Act  Inly  2,  1890.  c.  647, 
26  Stat.  209  (U.  S.  Comp.  St.  1901,  p. 
3200),    and    for    the    transfer    back  to    the 


stockholders  of  the  subsidiary  corporations 
of  the  stock  which  had  been  turned  over 
to  the  holding  company  in  exchange  for 
its  own  stock.  Standard  Oil  Co.  v.  United 
States,  221  U.  S.  1,  55  L.  Ed.  619,  31  S.  Ct. 
502,  affirming  iudgment.  United  States  v. 
Standard  Oil  Co.  of  (N.  J.),  34  L.  R.  A. 
(N.  S.)   834,  173  F.  177. 

Six  months,  with  a  possible  extension 
of  sixty  days,  should  be  given  in  which  to 
work  out  a  plan  for  dissolving  a  combina- 
tion found  to  control  the  tobacco  industry 
in  violation  of  Antitrust  Act  July  2,  189u, 
c.  647,  26  Stat.  209  (U.  S.  Comp.  St.  1901, 
p.  3200),  and  recreating  out  of  the  ele- 
ments composing  it  a  condition  which  will 
not  be  repugnant  to  the  prohibitions  of 
the  act.  United  States  v.  American  To- 
bacco Co.,  221  U.  S.  106,  55  L.  Ed.  663,  31 
S.  Ct.  632,  reversing  decree  (C.  C),  164  F. 
700. 

447-35f.  Lawful  continuance  of  busi- 
ness.— Power  to  make  normal  and  lawful 
contracts  or  agreements  is  not  taken  from 
the  stockholders  of  the  subsidiary  corpo- 
rations, or  the  corporations  themselves, 
by  a  decree  for  the  dissolution  of  a  hold- 
ing company  found  to  offend  against  Anti- 
trust Act  July  2,  1890,  c.  647,  26  Stat.  2U9 
_(U.  S.  Comp.  St.  1901,  p.  3200),  which  en- 
joins such  stockholders  and  corporations 
from  in  any  way  conspiring  to  violate  the 
statute,  or  from  monopolizing  or  attempt- 
ing to  monopolize,  in  virtue  of  their  stock 
ownership,  and  prohibits  all  agreements 
between  them  tending  to  produce  or  bring 
about  further  violations  of  the  statute,  but 
such  decree  merely  restrains  them  from, 
by  any  device  whatever,  recreating,  di- 
rectly or  indirectly,  the  illegal  combina- 
tion which  the  decree  dissolves.  Stand- 
ard Oil  Co.  V.  United  States,  221  U.  S.  1, 
55  L.  Ed.  619,  31  S.  Ct.  502,  affirming 
judgment  (C.  C.  1909),  United  States  v. 
Standard  Oil  Co.  of  New  Jersey,  173  F. 
177. 

447-35g.  Permanent  injunctions. — The 
injury  which  miglit  lie  inflicted  upon  the 
public  bj'  staying  interstate  commerce  in 
tobacco  and  its  products  by  a  combina- 
tion controlling  the  tobacco  industry,  in 
violation  of  Antitrust  Act  July  2,  1890, 
c.  647,  26  Stat.  209  (U.  S.  Comp.  St.  1901, 
p.  3200),  forbids  the  allowance,  in  the  first 
instance,  of  a  permanent  injunction  re- 
straining the  combination  as  a  whole,  and 


889 


447-448         MONOPOLIES  AND   CORPORATE   TRUSTS.       Vol.  VIII. 


appointment  of  a  receiver.^^^ 

(3)    Actions  for  Damages — (a)    In  General. — See  note  Z6. 

Allegations  as  to  Damages. — It  is  not  necessary  to  allege  injury  to  an  ex- 
isting business,  though  it  is  necessary  to  show  intention  and  preparation  as  to 
prospective  business. ^^^ 

5.  Effe:ct  on  Contracts. — See  note  38.  Defendants  in  an  action  for  goods 
sold  and  delivered  are  entitled  to  judgment  on  a  demurrer  admitting  the  al- 
legations of  a  defense  set  up  by  the  answer,  which  in  substance  disclose  that 
plaintiff  is  the  selling  agent  of  a  combination  of  wall  paper  manufacturers  which 


all  the  individuals  and  corporations  which 
form  a  part  of,  or  co-operate  in  it  any 
manner  or  form,  from  continuing  to  en- 
gage in  interstate  commerce  until  the  il- 
legal situation  is  cured.  United  States  v. 
American  Tobacco  Co.,  221  U.  S.  106,  55 
L.  Ed.  663,  31  S.  Ct.  632,  reversing  decree 
(C.  C.  1908),  164  F.  700 

The  possible  serious  injury  to  the  pub- 
lic from  an  absolute  cessation  of  interstate 
commerce  in  petroleum  and  its  products 
by  the  agencies  embraced  in  a  holding 
company  controlling  the  oil  industry,  in 
violation  of  Anti-trust  Act  July  2,  1890, 
c.  647,  26  Stat.  209  (U.  S.  Comp.  St.  1901, 
p.  3200),  requires  that,  upon  dissolving  the 
holding  company,  the  subsidiary  corpora- 
tions should  not  be  enjoined  from  carry- 
ing on  interstate  commerce  until  the  dis- 
solution of  the  combination  should  be  ef- 
fected, in  accordance  with  the  decree,  bj* 
the  transfer  back  to  the  stockholders  of 
the  subsidiary  corporations  of  the  stock 
which  had  been  turned  over  to  the  hold- 
ing company  in  exchange  for  its  own 
stock.  Standard  Oil  Co.  v.  United  States, 
221  U.  S.  1,  55  L.  Ed.  619,  31  S.  Ct.  502,  af- 
firming judgment.  United  States  v.  Stand- 
ard Oil  Co.  of  New  Jersey,  34  L.  R.  A.  (N. 
S.)   834,   173   F.  171. 

447-35h,  Appointment  of  receiver. — A 
receiver  will  not,  in  the  first  instance,  be 
appointed  to  take  charge  of  the  assets  and 
property  of  a  combination  controlling  the 
tobacco  industry,  in  violation  of  Anti- 
trust Act  July  2,  1890,  c.  647,  26  Stat.  209 
(U.  S.  Comp.  St.  1901,  p.  3200),  for  the 
purpose  of  preventing  a  continued  viola- 
tion of  the  law,  and  thus  working  out,  by 
a  sale  of  the  property  of  the  combination 
or  otherwise,  a  condition  which  will  not 
be  repugnant  to  the  prohibitions  of  the 
act,  since  the  extensive  power  which  would 
result  from  at  once  resorting  to  a  receiv- 
ership might  not  only  do  grievous  injury 
to  the  public,  but  also  cause  widespread 
and  perhaps  irreparable  loss  to  many  in- 
nocent persons.  United  States  v.  Ameri- 
can Tobacco  Co.,  221  U.  S.  106,  55  L.  Ed. 
663,  31  S.  Ct.  632,  reversing  decree  (C.  C), 
104  F.  700. 

447-36.  Provision  stated. — Loewe  v. 
Lawlor,  208  U.  S.  274,  52  L.  Ed.  488,  28  S. 
Ct.  301;  Continental  Wall  Paper  Co.  v. 
Voight  &  Sons  Co.,  212  U.  S.  227,  53  L. 
Ed.  486,  29  S.  Ct.  280. 

447-36a.     Allegations     of    damages. — In 


order  to  state  a  cause  of  action  for  dam- 
ages for  conspiracy  in  restraint  of  inter- 
state commerce  under  the  federal  Anti- 
trust Act,  it  is  not  necessary  to  jdloge  in- 
jury to  an  existing  business,  though  it  is 
necessary  to  state  facts  showing  an  in- 
tention and  preparedness  to  engage  in 
business,  it  being  as  unlawful  to  prevent 
a  person  from  engaging  in  business  as  it 
is  to  drive  one  out  of  business.  Judgment 
(C.  C.  1908),  160-  F.  184,  affirmed.  (1908) 
American  Banana  Co.  v.  United  Fruit  Co., 
166  F.  261,  92  C.  C.  A.  325,  judgment  af- 
firmed American  Banana  Co.  v.  United 
Fruit  Co.,  213  U.  S.  347,  53  L.  Ed.  826,  29 
S.  Ct.  511. 

Where  a  complaint  for  conspiracy  in  re- 
straint of  foreign  commerce  in  violation 
of  the  federal  Anti-trust  Act  changed  in- 
jury to  plaintiff's  plantation  by  Costa  Ri- 
can  officials  resulting  from  an  alleged  con- 
spiracy with  defendant,  and  also  that  de- 
fendant controlled  the  banana  market  in 
the  West  Indies  and  in  Central  and  South 
America  and  prevented  plaintiff  from  bu}-- 
ing  and  shipping  bananas  to  the  United 
States  and  selling  them  to  its  great-  profit, 
which  it  would  otherwise  have  done,  such 
latter  allegation  would  be  treated  as  inci- 
dental to  plaintiff's  demand  for  damages 
for  mjury  to  its  plantation,  in  the  absence 
of  an  allegation  that  plaintiff  had  invested 
any  money  in  preparing  to  engage  in  buy- 
ing, shipping  and  selling  bananas  as  a 
business  independent  of  the  operation  of 
:ts  own  plantation.  American  Banana  Co. 
V.  United  Fruit  Co.,  166  F.  201,  92  C.  C.  A. 
32,  judgment  affirmed  American  Banana 
Co.  V.  United  Fruit  Co.,  213  U.  S.  347,  53 
L.  Ed.  826,  29  S.  Ct.  511. 

448-38.  Illegality  of  contract  as  defense 
to  suit. — A  recovery  upon  an  account  for 
goods  sold  and  delivered  by  a  corporation 
created  to  effectuate  a  combination  of 
wall  paper  manufacturers,  intended  and 
having  the  effect  directly  to  restrain  and 
monopolize  trade  and  commerce,  in  vio- 
lation of  Anti-trust  Act  July  2,  1890,  c. 
647,  26  Stat.  209  (U.  S.  Comp.  St.  1901.  p. 
3200),  can  not  be  had  where  the  account 
is  made  up,  within  the  knowledge  of  both 
buyer  and  seller,  with  direct  reference  to, 
and  in  execution  of,  the  agreements  which 
constitute  the  illegal  combination.  Con- 
tinental Wall  Paper  Co.  v.  Voight  &  Sons 
Co.,  212  U.  S.  227,  53  L.  Ed.  486.  29  S.  Ct. 
280. 


890 


Vol.  VIII.  MORTGAGES  AND   DEEDS   OF   TRUST.  448-451 

offends  against  Antitrust  Act  July  2,  1890,  c.  647,26  Stat.  209  (U.  S.  Comp.  St. 
1901,  p.  3200),  that,  in  carrying  out  such  combination  defendants  were  virtually 
compelled  to  sign  a  jobber's  agreement  which,  in  effect,  bound  them  to  buy  from 
the  plaintiff'  all  the  wall  paper  needed  in  their  business  at  certain  fixed  prices, 
and  not  to  sell  at  lower  prices  or  upon  better  terms  than  those  at  which  plain- 
tiff itself  sells  to  dealers  other  than  jobbers  that  the  goods  in  question  were 
ordered  pursuant  to  such  agreement  and  at  the  prices  fixed ;  that  such  prices 
were  unreasonable ;  and  that  all  the  transactions  between  the  parties  were  in 
furtherance  of  the  illegal  combination.^^^ 

MONUMENTS.— See  ante,  Boundariijs,  p.  206. 
MOOT  QUESTIONS.— See  note  a. 


MORTGAGES  AND  DEEDS  OF  TRUST. 

II.  Transactions  Either  Mortgages  or  Sales,  892. 
G.  Evidence,  892. 

2.  Admissibility,  892. 

IV.  Form,  Requisites  and  Validity,  892. 
K.  Validity,  892. 

1^.  Accrued  Interest  of  Heir,  892. 

V.  Operation  and  Effect,  892. 

B.  Indebtedness  Secured,  892. 
Zy..  Entire  Debt  Secured,  892. 

VII.  Rights,  Duties  and  Liabilities  of  Parties,  892. 
D.  Of  Trustees,  892. 

X.  Transfer  or  Lease  of  Encumbered  Property,  892. 
F.  Purchasers'  Rights,  892. 

XII.  Foreclosure,  893. 

C.  By  Suit  or  Action,  893. 

5.  Limitation  and  Laches,  893. 

d.  Bar  of  Obligation  Secured,  893. 

CROSS   REFERENCES. 

See  the  title  Mortgages  and  Deeds  oe  Trust,  vol.  8,  p.  452,  and  references 
there  given. 

In  addition,  see  ante,  Appeal  and  Error,  p.  34;  Bankruptcy,  p.  168: 
Courts,  p.  398;    Dismissal,  Discontinuance    and    Nonsuit,    p.    466;    Joint 

448-38a.  A  court  will  not  lend  its  aid,  451-a.  Moot  case. — A  review  of  reta- 
in any  way,  to  a  party  seeking  to  realize  tions  of  the  trial  court  in  a  criminal  case 
the  fruits  of  an  aQ:reement  that  appears  to  by  an  appeal  taken,  under  D.  C.  Code. 
be  tainted  with  illegality,  although  the  re-  §  93.5,  on  behalf  of  the  government  after 
suit  of  applying  that  rule  maj'  sometimes  acquittal,  on  which  the  court  has  no 
be  to  shield  one  has  got  something  for  power  to  set  aside  the  verdict  involving  a 
which,  as  between  man  and  man.  he  ought,  determination  of  moot  question  only, 
perhaps,  to  pay,  but  for  which  he  is  un-  which  is  not  a  judicial  function,  can  not 
willing  to  pay.  Judgment  (1906)  Conti-  be  required  of  the  federal  court  by  con- 
nental  Wall  Paper  Co.  :'.  Lewis  Voight  &  gress.  United  States  v.  Evans,  213  U.  S. 
Sons  Co.,  148  F.  939,  78  C.  C.  A.  567,  af-  297.  53  L.  Ed.  803,  29  S.  Ct.  507.  See  ante, 
firmed.  Continental  Wall  Paper  Co.  z:  APPEAL  AND  ERROR,  p.  34. 
Voight  &  Sons  Co..  212  U.  S.  227,  53  L. 
Ed.  486,  29  S.   Ct.  280. 

891 


463-484 


MORTGAGES  AND  DEEDS  OF  TRUST.  Vol.  VIII. 


Tenants  and  Tenants  in  Common,  p.  806;  Judgments  and  Decrees,  p. 
807;  Laches,  p.  818;  post.  Pledge  and  Collateral  Security;  Rescission, 
Cancellation  and  Reformation. 

As  to  federal  courts  following  state  court  decisions  in  matters  relating  to 
mortgages  and  deeds  of  trust,  see  ante,  Courts,  p.  398.  As  to  laches  in  fore- 
closure suit,  see  ante,  Laches,  p.  818.  As  to  taxation  of  mortgaged  land  for  full 
value,  see  ante,  DuE  Process  oe  Law,  p.  475. 

II.  Transactions   Either   Mortgages    or   Sales. 

G.    Evidence — 2.  Admissibility. — See  note  34. 

IV.  Form,  Requisites  and  Validity. 

K.    Validity — 1>4.    Accrued    Interest    of    Heir. — Accrued    Interest    of 

Heir. — An  heir's  right  in  Porto  Rico  to  mortgage  accrued  undivided  interest 
in  an  inheritance  is  unaffected  by  the  mortgage  law.^*^^ 

V.    Operation  and  Effect. 

B.  Indebtedness  Secured — 3^^.  Entire  Debt  Secured. — A  mortgagor's 
liabilitv  under  a  mortgage  to  secure  a  debt  extends  to  the  whole  debt,  whether 
executed  by  her  as  principal  or  surety. ^''^ 

VII.    Rights,  Duties  .and  Liabilities  of  Parties. 

D.  Of  Trustees. — Acts  of  Receiver. — A  trustee  was  not  liable  for  acts  of 
receiver. "^^^ 

X.    Transfer  or  Lease  of  Encumbered  Property. 

F.  Purchasers'  Rights. — The  purchaser  of  mortgaged  property,  under 
agreement  to  assume  lien  of  mortgage  and  judgment  of  foreclosure,  is  not  en- 
titled to  have  his  title  quieted  against  mortgage  without  paying  mortgage  debt.*'''^ 


463-34.     Evidence  to  additional  security. 

— Evidence  to  show  tliat  a  l)ill  of  sale 
which  appears  on  its  face  to  have  been 
given  in  discharge  of  a  debt  was  reallj'  in- 
tended to  give  the  creditor  additional  se- 
curity is  admissible  under  the  Porto  Rico 
law  of  evidence,  §  101,  declaring  that  the 
rule  which  raises  a  conclusive  presumption 
of  the  truth  of  the  facts  in  a  written  in- 
strument does  not  apply  to  the  recital  of 
a  consideration.  Cabrera  f.  American 
Colonial  Bank,  214  U.  S.  224.  53  L.  Ed. 
974.  29   S.  Ct.  623. 

466-66a.  Accrued  interest  of  heir. — The 
accrued  interest  of  an  heir,  though  undi- 
vided, is  not  a  property  right  to  be  ''owned 
in  the  future,"  within  the  provisions  of 
Porto  Rico  ^lortgage  Law.  art.  108,  defin- 
ing things  not  mortgageable.  Cabrera  7". 
American  Colonial  Bank,  214  U.  S.  224,  53 
L.  Ed.  974.  29  S.  Ct.  623. 

An  heir's  right  to  mortgage  his  accrued 
undivided  interest  is  not  affected  b}'  pro- 
visions of  Porto  Rico  Mortgage  Laws, 
arts.  110,  111,  which  only  define  incidents 
of  an  estate  to  which  mortgage  of  it  ex- 
tends. Cabrera  v.  American  Colonial 
Bank,  214  U.  S.  224,  53  L.  Ed.  974,  29  S. 
Ct.  623. 

470-99a.  Entire  debt  secured. — Cabrera 
r.  American  Colonial  Bank.  214  U.  S.  224, 
53  L.   Ed.  974,  29   S.   Ct.   623. 


477-48a.  Acts  of  receiver. — The  trustee 
in  a  mortgage  of  the  property  of  a  canal 
and  irrigation  company,  who  brings  a  suit 
for  foreclosure  and  sale,  and  obtains  the 
appointment  of  a  receiver  to  take  charge 
of  and  mariage  the  property  pendente  lite, 
does  not,  by  reason  of  such  action,  be- 
come personally  liable  for  money  bor- 
rowed, expenses  inciu-red,  and  certificates 
issued  by  the  receiver  under  orders  of  the 
court,  in  keeping  the  corporation  on  its 
feet  as  a  going  concern,  which  the  pro- 
ceeds of  the  sale  proved  insufficient  to 
pay.  Atlantic  Trust  Co.  v.  Chapman,  208 
U.   S.  360,  52   L.   Ed.  528,  28  S.   Ct.  406. 

484-97a.  Rights  of  purchaser  against 
mortgagee. — I'he  purchaser  of  mortgaged 
property,  under  an  agreement  to  pay  the 
lien  of  the  mortgages  and  the  judgments 
of  foreclosure  thereon,  is  not  entitled  to 
have  his  title  quieted  as  against  the  mort- 
gagee, without  paying  the  m.ortgage  debt, 
although  the  mortgagee  in  bad  faith 
evaded  the  purchaser's  effort  to  make 
such  payment,  and  with  full  knowledge 
of  the  facts,  and  with  intent  to  defraud, 
procured  from  the  mortgagor  a  convey- 
ance of  a  part  of  the  premises,  and  a  new 
mortgage  on  the  residue,  and  satisfied  of 
record  the  former  mortgages  and  judg- 
ment liens.  Stoffela  z:  Nugent,  217  U.  S. 
499,  54  L.  Ed.  856,  30  S.  Ct.  600. 


892 


Vol.  MIL 


.1/  UL  TIFARIO  USNESS. 


499-535 


XII.    Foreclosure. 

C.  By  Suit  or  Action— 5.  Limitatiox  axd  Laches— d.  Bar  of  Obligation 
Secured. — See  note  2. 

MOTIONS  AND  SUMMARY  PROCEEDINGS.— See  the  title  Motions  and 
Summary  Proceedings,  vol.  8,  p.  528,  and  references  there  given.  As  to  denial 
of  motion  for  judgment  on  pleadings,  not  constituting  reversible  error,  see  ante, 
Appeal  and  Error,  p.  34. 

MOVING  PICTURES.— See  ante,  Copyright,  p.  Z77 . 


MULTIFARIOUSNESS. 

I.  Definition  and  General  Nature,  893. 

C.   Rules  for  Determining  ^Multifariousness,  893. 

II.  Forms  of  Multifariousness,  893. 

A.  ^Misjoinder  of  Causes  of  Action,  893. 

B.  ^lisjoinder  of  Parties,  894. 

III.  Time  and  Method  of  Raising  Objections,  894. 

CROSS   REFERENCES. 

See  the  title  ^^Iultifariousness,  vol.  8,  p.  532,  and  references  there  given. 

I.  Definition  and  General  Nature. 
C.    Rules  for  Determining  Multifariousness. — See  note  3. 

II.     Forms   of  Multifariousness. 
A.    Misjoinder  of  Causes  of  Action. — See  note  9. 


499-2.      Bar   of   obligation   secured. — "It 

is  established  law  in  Texas  that,  when  a 
debt  is  barred,  an  action  to  foreclose  a 
lien  or  mortgage  given  as  security  for  it 
is  barred  also."  Diipree  v.  Mansur,  214  U. 
S.  161,  53  L.  Ed.  950,  29  S.  Ct.  548. 

■'By  the  law  of  Texas  the  security  is  in- 
cident to  the  note,  and  does  not  warrant 
a  foreclosure  when  the  note  does  not  war- 
rant a  jitdgment."  Dupree  v.  Mansur,  214 
U.  S.  161,  53  L.  Ed.  950,  29  S.  Ct.  548. 
See.  also,  ante,  LIMITATION  OF  AC- 
TIONS AND  ADVERSE  POSSESSION, 
p.  828. 

533-3.  Suit  by  one  state  against  another. 
- — Objections  as  to  multifariousness, 
laches,  and  the  like,  except  so  fai  as  they 
affect  the  merits,  will  not  be  considered 
by  the  federal  supreme  court  in  a  suit  by 
the  commonwealth  of  Virginia  against 
the  state  of  West  Virginia,  to  determine 
the  am.ount  due  to  the  former  by  the  lat- 
ter as  the  equitable  proportion  of  the 
public  debt  of  Virginia  which  was  assumed 
l5y  West  Virginia  at  the  time  of  its  crea- 
tion as  a  state.  Virginia  v.  \\'est  Virginia. 
1220  XT.  S.  1,  55  L.  Ed.  353,  31   S.  Ct.  330. 

535-9.  Cancellation  of  separate  convey- 
ances to  Indians. — .\  bill  filed  by  the  United 
States    to    cancel    conveyances    by    Indian 


allottees  on  the  ground  that  they  were  in 
violation  of  existing  restrictions  upon  the 
power  of  alienation  is  not  open  to  the  ob- 
jection of  multifariousness  or  misjoinder 
because  the  suit  involves  a  large  number 
of  separate  conveyances  by  individual  In- 
dian allottees  to  distinct  grantees  made 
parties  defendant.  Heckman  v.  United 
States,  224  U.  S.  413,  56  L.  Ed.  820,  32  S. 
Ct.  424;  Mullen  v.  United  States,  224  U.  S. 
448,  56  L.  Ed.  834,  32  S.  Ct.  494. 

Acts  of  each  defendant  of  like  character 
and  defenses  the  same. — An  objection  of 
nmltifariousness  based  on  misjoinder  of 
parties  and  causes  of  action  does  not  lie 
against  a  bill  to  enjoin  ticket  brokers  from 
dealing  in  nontransferable  reduced  rate 
excursion  tickets,  where  the  acts  com- 
plained of  as  to  each  defendant  were  of  a 
like  character,  their  operation  and  effect 
upon  the  rights  of  the  complaining  car- 
rier were  identical,  the  relief  sought 
against  each  defendant  being  the  same, 
and  the  defenses  which  might  be  inter- 
posed being  common  to  each  defendant, 
and  involving  like  legal  questions.  Judg- 
ment, Louisville  &  N.  R.  Co.  v.  Bitterman 
(1906),  144  F.  34,  75  C.  C.  A.  192,  affirmed. 
Bitterman  v.  Louisville,  etc.,  R.  Co..  207  U. 
S.  205,  52   L.   Ed.   171,  28  S.   Ct.  91. 


893 


536-540 


MULTIPLICITY  OF  SUITS. 


Vol.  VIIL 


B.    Misjoinder  of  Parties. — Suit  against  a  Prosecuting  Attorney  and 
Secretary  of  State. — See  note  11. 

III.  Time  and  Manner  of  Raising  Objections. 

See  notes  13,  16. 


MULTIPLICITY  OF  SUITS. 

I.  General  Rule,  894. 

CROSS   REFERENCES. 

See  the  title  ^^Iultiplicity  of  Suits,  vol.  8,  p.  539,  and  references  there  given.. 

I.    General  Rule. 

Repetition  of  Suits  between  Same  Parties  Involving  Same  Facts  and 
Legal  Principles. — A  court  of  equity  ought  not  to  interfere  upon  the  ground 
of  danger  of  multiplicity  of  suits  by  the  same  person  against  the  complainant 
for  causes  of  action  arising  out  of  the  same  facts  and  legal  principles,  unless  it 
is  clearly  necessary  to  protect  the  complainant  against  continued  and  vexatious 
litigation. ^^ 

Plaintiff  Can  Not  Invoke  Rule  for  Benefit  of  Defendant. — Equity  juris- 
diction can  not  depend  on  the  fact  that  defendant  will  be  saved  a  multiplicity  of 
suits  by  other  parties,  where  defendant  raises  no  objection  to  such  suits,  and 
urges  no  such  ground  for  jurisdiction  in  equity  of  the  suit  in  question.-^'' 


536-11.  Misjoinder  of  defendants. — Mul- 
tifariousness can  not  successfully  be  urged 
against  a  bill  filed  1)y  a  foreign  railway 
company  in  a  federal  circuit  court  to  en- 
join a  prosecuting  attorney  from  enforc- 
ing a  state  statute  requiring  the  stoppage 
of  interstate  passenger  trains  at  junction 
points,  and  to  restrain  the  secretary  of 
state  from  proceeding  under  the  authority 
of  another  state  statute  to  revoke  the 
company's  license  and  right  to  do  local 
business  because  of  bringing  suit  in  a  fed- 
eral court.  Herndon  <:•.  Chicago,  etc.,  R. 
Co.,  218  U.  S.  1.35.  .54  L.  Ed.  9/"o,  .30  S.  Ct. 
63.3;  Roach  z:  Atchison,  etc.,  R.  Co,  218 
U.  S.  159.  54  L.  Ed.  978,  30  S.  Ct.  639.  Af- 
firming decree  Chicago,  R.  I.  &  P.  Rv. 
Co.  V.  Swans^er  ( C.  C.  1908),  157  F.  783. 
See  ante,  "Misjoinder  of  Causes  of  Auc- 
tion." TT,  A. 

536-13.  Objection  taken  by  demurrer, 
plea  or  answer. — Wliere  a  bill  is  objected 
to  because  joinder  defendants,  the  objec- 
tion must  be  promptly  made.  The  proper 
way  to  raise  such  question  is  by  special  de- 
murrer, specifically  directed  to  the  objec- 
tion. It  is  true  that  a  court  may  itself 
take  the  objection  in  extreme  cases,  when 
that  course  is  essential  to  the  necessary 
and  proper  administration  of  justice.  But, 
if  the  court  can  get  to  a  final  decree  without 
serious  embarrassment,  it  will  do  so.  "A 
fortiori,  an  appellate  court  would  scarcely 
entertain  the  objection,  if  it  was  not 
forced  upon  it  by  a  moral  necessity." 
Herndon  v.  Chicago,  etc,  R.  Co.,  218  U.  S. 
135,  54  L.  Ed.  970,  30  S.  Ct.  633;  Roach  v. 
Atchison,  etc.,  R.  Co.,  218  U.  S.  157,  54  L. 
Ed.  978,  30  S.  Ct.  639. 


537-16.  Objection  can  not  be  made  in 
appellate  court. — The  objection  of  multi- 
fariousness will  not  prevail  on  appeal, 
where  the  bill  charges  a  conspiracy  be- 
tween several  trespassers,  and  trespasses 
extending  over  the  greater  part  of  contig- 
uous lots,  treated  as  one — especially  where 
defendants  did  not  stand  upon  their  de- 
murrers setting  up  such  objection,  and  the 
case  has  been  tried  after  long  delay.  De- 
cree. Ashburn  v.  Graves  (1907).  149  F.  968, 
79  C.  C.  A.  478,  reversed.  Graves  v.  Ash- 
burn, 215  U.  S.  331,  54  L.  Ed.  217,  30  S.  Ct. 
108. 

540-5a.  Repetition  of  suits  between 
same  parties. — Boise,  etc..  Water  Co.  i'. 
Boise.  213  U.  S.  276,  53  L.  Ed.  796.  29  S. 
Ct.  426.  See,  also,  ante,  INJUNCTIONS, 
p.   657. 

"Something  more  is  reqviired  than  the 
beginning  of  a  single  action  with  an  hon- 
est purpose  to  settle  the  rights  of  the  par- 
ties. 1  Pomeroy's  Eq.  Juris.,  3d  Ed.,  § 
254.  Perhaps  it  might  be  necessary  to 
await  the  final  decision  of  one  action  at 
law  (see  for  analogies  Sharon  z".  Tucker, 
144  U.  S.  533,  36  L.  Ed.  532;  Boston,  etc., 
Min.  Co.  v.  Montana  Ore,  etc.,  Co.,  188  U. 
S.  632,  47  L.  Ed.  626),  but  that  we  need  not 
decide."  Boise,  etc.,  Water  Co.  v.  Boise, 
213  U.  S.  276,  286,  53  L.  Ed.  796,  29  S.  Ct. 
426. 

540-5b.  Who  may  invoke  rule. — Decree 
(1907)  Brown  z'.  Equitable  Life  Assur. 
Society  of  United  States,  151  F.  1,  81  C.  C. 
A.  1.  reversed.  Equitable  Life  Assur.  Soc. 
V.  Brown,  213  U.  S.  25,  53  L.  Ed.  682,  29» 
S.  Ct.  404. 


894 


A'ol.  VIII.  MUNICIPAL  CORPORATIONS. 

MUNICIPAL   BONDS.— See   post,   Municipal,   County,    State  and   Fed- 
eral Securities. 


MUNICIPAL   CORPORATIONS. 

I.  Definition  and  General  Consideration,  896. 
A.  Definition.  Nature  and  Purpose,  896. 

II.  Incorporation,   Creation  and  Organization,  897. 
A.  In  General,  897. 

III.  Charters,  897. 

E.  Effect  as  Contract.  897. 

IV.  Territory  and  Subdivisions,  897. 

C.  Alteration.    2\loclification,   Consolidation   and   Dissolution,   897. 

3.  Annexation  and  Consolidation,  897. 

c.  Eft'ect,  897. 

(6)  Taxation,   897. 

5.  Dissolution  and  Change  of  Form,  897. 

b.  \Miat  Amounts  to  Dissolution,  897. 

c.  Effect   upon   Powers,   Property,   Immunities,   Debts   and   Lia- 

bilities. 897. 
(1)   Change   in   Continuity   of   Political   Organizations.  897. 
(d)   Xew    Xame    or    Xew    Corporation    Alade    Out   of 
Old.   897. 

V.  Powers,  Privileges  and  Obligations,  898. 

A.  In  General,  898. 

D.  Classification  of   Powers,  etc.,   as  Public  and   Private,  898. 
H.  Construction  of  Grants  of  Power  and  Privileges,  898. 

2.  Rule  of  Strict  Construction,  898. 
a.  In  General.  898. 
L.  Particular  Powers  and  Privileges,  898. 

17.  Police    Powers    and    Regulation    of    Alunicipal   Aft'airs,   898. 

a.  In  General.  898. 
29.  Light  or  Illumination,  899. 
31.  Water  Supplv.  899. 
y:'.  As  to  Buildings,  899. 

VI.  Municipal  Contracts,  899. 

A.  Power  to  Contracts,  899. 

1.  In  General,  899. 
I.  Particular  Contracts,  899. 

1.  Grant  of  Franchise,  899. 

a.  In  General.  899. 

b.  Power  to  Grant  Exclusive  Privilege  or  Franchise  and  Create 

^Monopolies.  899. 

c.  Construction  of  Grants.  900. 

2.  Contracts   Concerning  or   Restricting  Governmental   Functions   or 

Powers,  901. 

a.  In  General.  901. 

b.  Contracts  Abridging  Power  to  Fix  Rates.  901. 

4.  Contracts   Creating  Indebtedness.   902. 

c.  Source  of   Payment,  902. 

6.  Contract  with  Judgment  Creditor  as  to  Order  of  Payment,  902. 

895 


554  MUNICIPAL  CORPORATIONS.  Vol.  VIII. 

VII.  Municipal  Property,  902. 

A.  Acquisition  and  Title,  902. 
-    1.  In  General,  902. 

3.  Property   Acquirable   and   Purposes   of   Acquisition,  902. 
b.  Private  Property  Not  of  a  Governmental  Nature,  902. 

D.  Liability  of  Property  for  Debts,  903. 

1.  In  General,  903. 

E.  Legislative  Control,  903. 

1.  In  General,  903. 

VIII.  Municipal  Torts,  904. 
A.  In   General,  904. 
K.  Mob  Violence,  904. 

IX.  Governing"    Bodies,     Administrative     Boards     and     Officers     and 
Agents,  904. 
C.  Municipal  Ofificers  and  Agents,  904. 

8.  Termination   of   Office — Holding  Over,  904. 

X.  Legislative  Control,  904. 

A.  In  General,  904. 

E.  Powers,  904. 

F.  Officers  and  Agents,  904. 

I.  Power  of  Taxation  and  Revenue,  904. 
1.  In  General,  904. 

XIII.  Ratification,  Estoppel  and  Laches,  905. 

B.  Estoppel,  905. 

CROSS   REFERENCES. 

See  the  title  Municipal  Corporations,  vol.  8,  p.  546,  and  references  there 
given. 

As  to  municipal  legislation  impairing  obligations  of  contracts,  see  ante,  Im- 
pairment OF  Obligation  op  Contracts,  p.  624.  As  to  due  process  of  law  in 
assessments  for  due  public  improvements,  see  ante,  Due:  Process  of  Law,  p. 
475 ;  post.  Special  Assessments.  As  to  regulation  of  use  of  streets,  see  post. 
Police  Power;  Streets  and  Highways.  See  also,  ante.  Due  Process  oe  Law, 
p.  475.  As  to  telegraph  and  telephone  franchises  to  use  streets,  see  post,  Streets 
.\ND  Highways;  Telegraphs  and  Telephones.  As  to  regulating  telegraph 
and  telephone  rates,  service,  etc.,  see  post,  Telegraphs  and  Telephones.  As 
to  gas  rates,  see  ante.  Gas,  p.  607.  As  to  water  rates,  see  post.  Water  Com- 
panies AND  Waterworks.     As  to  municipal  taxation,  see  post.  Taxation. 

I.  Definition  and  General  Consideration. 

A.  Definition,  Nature  and  Purpose. — Municipal  corporations  are  politi- 
cal subdivisions  of  the  state,  created  as  convenient  agencies  for  exercising  such 
of  the  governmental  powers  of  the  state  as  may  be  entrusted  to  them.^^a 

554-12a.    Division    of    state. — Hunter    v.  21  L.  Ed.  597;  Commissioners  v.  Commis- 

Pittsburgh.   207   U.    S.    161.    52   L.    Ed.    151,  sinners.   92    U.   S.   307.   312.   23   L.   Ed.   552; 

28  S.  Ct.  40.  Tippecanoe  County  v.  Lucas,  93  U.  S    108, 

"This   court  has   many   times  had   occa-  23  L.   Ed.   822;   New   Orleans  v.   Clai-k,   95 

sion  to  consider  and  decide  the  nature  of  U.  S.  644,  24  L.  Ed.  521;  Mount  Pleasant 

municipal    corporations,    their    rights    and  t'.  Beckwith,  100  U.  S.  514,  532,  25  L.  Ed. 

duties,  and  the  rights  of  their  citizens  and  699;  Meriweather  v.  Garrett,  102  U.  S.  472, 

creditors.       Maryland    v.    Baltimore,    etc.,  511,    26    L.    Ed.    197;    Kelly   v.    Pittsburgh, 

R.    Co.,    3    How.'  534,    550,    11    L.    Ed.    714;  104  U.  S.  78,  SO,  26  L.  Ed.  658;  Forsyth  v. 

East  Hartford  v.  Hartford  Bridge  Co.,  10  Hammond,   166   U.    S.   506,   518,   41   L.   Ed. 

How.    511,    536,    13    L.    Ed.    518;    United  1095,  17  S.  Ct.  665;  Williams  v.  Eggleston, 

States  V.   Railroad   Co.,   17  Wall.  322.   329,  170  U.  S.  304,  310,  42  L.  Ed.  1047,  18  S.  Ct. 

896 


Vol.  VIII.  MUXICIPAL   CORPORATIOXS^  555-563 

II.    Incorporation,   Creation  and  Organization. 

A.  In  General. — The  state  is  the  creator  of  subordinate,  municipal  govern- 
ments.-^'^ 

III.     Charters. 

E.  Effect  as  Contract. — The  charter  of  a  municipal  corporation  is  not  a 
contract  v.'ith  the  state. "♦"^ 

IV.    Territory  and  Subdivisions. 

C.  Alteration,  Modification,  Consolidation  and  Dissolution — 3.  An- 
nexation AND  CoNSOLiDATioNl^c.  Effect — (6)  Taxation. — Impairment 
of  Obligation  of  Contract. — There  is  no  contract  between  the  citizens 
and  taxpayers  of  a  municipal  corporation  and  the  corporation  itself,  that  the 
former  shall  be  taxed  only  for  the  uses  of  that  corporation,  which  is  impaired 
by  subjecting  them  to  taxation  for  the  uses  of  the  enlarged  municipality  formed 
by  annexation  to   an   adjoining  and  larger  municipality.^^^ 

Due  Process  of  Law. — Citizens  and  taxpayers  of  a  lesser  municipality 
annexed  to  an  adjoining  and  larger  municipality  are  not  deprived  of  their 
property  without  due  process  of  law  by  reason  of  the  burden  of  additional 
taxation  resulting  from  the  consolidation,  although  the  method  of  voting  pre- 
scribed by  the  statute  has  permitted  the  voters  of  the  larger  city  to  overpower 
the  voters  of  the  smaller  one,  and  compel  the  union  without  their  consent  and 
against  their  protest.^^'' 

5.  Dissolution  and  Change  of  For:.i — b.  ]]liat  Aiiioitnls  to  Dissolution. 
— A  municipal  corporation  is  not  totally  dissolved  as  a  mere  consequence  of 
military  occupation  or  territorial  cession.^"^*^ 

c.  Effect  upon  Powers,  Property,  Immunities,  Debts  and  Liabilities — (1) 
Change  in  Continuity  of  Political  Organisations — (d)  Nezv'  Name  or  New 
Corporation  Made  Out  of  Old. — Where  a  municipal  charter  is  replaced  and  the 
old  charter  organization  abolished  but  the  same  or  substantially  the  same  in- 
habitants  are   erected    into    a   new   corporation,   whether   with   extended   or   re- 

617:  Covington  v.  Kentucky,  173  U.  S.  231,  son  for  presuming  their  total   dissolution 

241,  43  L.  Ed.  679,  19  S.  Ct.  383;  Worces-  as   a  mere   consequence   of  military  occu- 

ter  V.  Worcester,   etc.,   St.   R.   Co.,   196  U.  pation  or  territorial  cession.     The  suspen- 

S.    539,  549.    49  L.  Ed.    591,  25  S.  Ct.    327;  sion   of   such   governmental   functions   are 

Attorney    General   v.    Lowre5%    199    U.    S.  as    obviously    incompatible    with  the    new 

233,  50  L.  Ed.  167,  26  S.  Ct.  27."     Hunter  political  relations  thus  brought  about  may 

V.  Pittsburg,  207  U.  S.  161,  52  L.  Ed.  151,  be    presumed.      But     no    such    implication 

28  S    Ct   40  may  be   reasonably  indulged  beyond  that 

555-21a.   Chicago   v.    Sturges,   222   U.    S.  result."     Vilas  v.  Manila,  220  U.  S.  345,  55 

313,  56  L.   Ed.  215,  32   S.   Ct.  92.  L-  Ed.  491,  31  S.  Ct.  410. 

558-40a.   Effect   of   contract.— Hunter   v.  In  the  case  of  the  city  of  Manila   the  legal 

Pittsburgh,  207  U.  S.  161,  52  L.  Ed.  151,  28  entity  survived  both  the  m.li  ary  occupa- 
S    C\    40  "  ^  cession  which  toUowea.     inis 

^'       '      '    ^^  TT      1  o^,-  TT    o  conclusion    "finds    support     in    the    cases 

562-58a.   Hunter  v.   Pittsburg,  20<    U     b.  ^j^j^j^  j^^l^  ^j^^^  ^j^^  Pueblos  of  San  Fran- 

161,  52  L.  Ed.  151,  28  S.  Ct.  40,  so  holding  ^j^^^   ^^^   ^^^   Angeles,   which   existed  as 

under  Pa.  Act  of  Pcb^T^  1906      bee  ante,  ^^^nicipal  organizations  prior  to  the  ces- 

IMPAIRMENT   OF    OBLIGATION    OF  ^-^^^  of  California  by  Mexico,  continued  to 

COXTRACTS,  p.  624.  exist  with  their  community  and  property 

5e2-58b.  Due  process  of  law. — Hunter  v.  rights  intact.     Cohas  v.  Raisin,  3  Cal.  443; 

Pittsburg,  207  U.  S.  161,  52  L.  Ed.  151,  28  Hart  v.  Burnett,  15  Cal.  530;  Townsend  v. 

S.  Ct.  40,  so  holding  under  Penn.  Act  Feb.  Greeley,  5  Wall.  326,  18  L.  Ed.  547;  Mer- 

7,  1906.  ryman   v.  Bourne,  9    Wall.  592,    602,  19    L. 

563-67a      Dissolution  —  Military     occu-  Ed.  683;  More  v.  Steinbach,  127  U.  S.  70, 

pation  or  territorial  cession.— Vilas  v.  Ma-  32   L.  Ed.  51,  8    S.  Ct.  1067;    Los    Angeles 

nila   220  U    S    345,  55  L-  Ed.  491,  31  S.  Ct.  Farming,  etc.,  Co.  v.  Los  Angeles,  217  U. 

41(5  '  ■  S.  217,  54  L.  Ed.  736,  30  S.  Ct.  452."     Vilas 

"in  view  of  the  dual  character  of  munic-  r-.  Manila.  220  U.  S.  345,  55  L.  Ed.  491,  31 

ipal   corporations  there   is   no  public   rea-  S.  Ct.  416. 

12  U  S  Enc— 57  897 


564-569 


MUNICIPAL   CORPORA  TIONS. 


Vol.  VIII. 


stricted  territorial  limits,  such  new  corporation  is  treated  as  in  law  the  successor 
of  the  old  one,  entitled  to  its  property  rights,  and  subject  to  its  liabilities.''^'^ 
In  the  absence  of  express  legislative  declaration  of  a  contrary  purpose,  no 
reason  for  supposing  tliat  the  reincorporation  of  an  old  municipality  is  intended 
to  permit  an  escape  from  the  obligations  of  the  old,  to  whose  property  and  rights 
it  has  succeeded.  The  juristic  identity  of  the  corporation  has  been  in  no  wise 
alTected,  and,  in  law,  the  present  city  is,  in  every  legal  sense,  the  successor  of 
the  old.  As  such  it  is  entitled  to  the  property  and  property  rights  of  the  pred- 
ecessor corporation,  and  is,  in  law,  subject  to  all  of  its  liabilities."^"  This  is 
the  rule  where  the  reincorporated  municipality  is  situated  in  territory  recently 
acquired  by  cession." ^"^ 

V.     Powers,   Privileges  and  Obligations. 

A.    In  General. — See  ante.  "Definition,  Nature  and  Purpose,"  I,  A. 

D.    Classification  of  Powers,  etc.,  as  Public  and  Private. — See  note  84. 

H.  Construction  of  Grants  of  Power  and  Privileges — 2.  Rule  of  Strict 
Construction — a.  In  General. — Grants  to  municipal  corporations,  like  grants 
to  private  corporations,  are  subject  to  the  rule  of  strict  construction."^^ 

L.  Particular  Powers  and  Privileges — 17.  Polich  Powers  and  Regu- 
lation oE  ^Municipal  Aeeairs — a.  In  General. — Preservation  of  Law  and 
Order  and  Protection  of  Property.— The  state  vests  in  subordinate  munici- 


564-71a.  Vilas  v.  Manila,  220  U.  S.  345, 
55  L.  Ed.  491,  31  S.  Ct.  416.  following 
Shapleigh  v.  San  Angelo,  167  U.  S.  646,  42 
L.  Ed.  310,  17  S.  Ct.  957. 

In  Shapleigh  v.  San  Angelo,  167  U.  S. 
648,  43  L.'Ed.  310,  17  S.  Ct.  957,  "this  court 
said  in  a  similar  case:  'The  state's  plenary 
power  over  its  municipal  corporations  to 
change  their  organization,  to  modify 
their  method  of  internal  government,  or 
to  abolish  them  altogether,  is  not  re- 
stricted by  contracts  entered  into  by  the 
municipality  with  its  creditors  or  with 
private  parties.  An  absolute  repeal  of  a 
municipal  charter  is  therefor  effectual  so 
far  as  it  abolishes  the  old  corporate  or- 
ganization." "  Vilas  V.  Manila,  220  U.  S. 
345,  55   L.   Ed.  491,  31   S.  Ct.  416. 

564-71b.  Vilas  v.  Manila,  220  U.  S.  345, 
55  L.  Ed.  491,  31  S.  Ct.  416,  following 
Broughton  v.  Pensacola,  93  U.  S.  266,  23 
L.  Ed.  896;  Mount  Pleasant  v.  Beckwith, 
100  U.  S.  514,  520,  25  L.  Ed.  699;  Mobile  v. 
Watson,  116  U.  S.  289.  29  L.  Ed.  620,  6  S. 
Ct.  398;  Shapleigh  v.  San  Angelo.  167  U. 
S.  646,  655.  42  E.   Ed.  310,  17  S.  Ct.  957. 

564-71C.  The  present  city  of  Manila,  re- 
incorporated by  the  Philippine  Commis- 
sion with  substantially  the  same  munici- 
pal powers,  area,  and  inhabitants  as  the 
Spanish  municipality  of  the  same  name, 
is  liable  upon  municipal  obligations  incur- 
red prior  to  the  cession  of  the  Philippine 
Islands  by  the  treaty  of  Paris  of  Decem- 
ber 10,  1898,  to  the  United  States.  Vilas 
V.  Manila,  220  U.  S.  345,  55  L.  Ed.  491,  31 
S.  Ct.  416. 

567-84.  Classification  of  powers,  etc., 
as  public  and  private. — ^lunicipal  corpo- 
rations "exercise  powers  which  are  gov- 
ernmental and  powers  which  are  of  a  pri- 


vate or  business  character.  In  the  one 
character  a  municipal  corporation  is  a 
governmental  subdivision,  and  for  that 
purpose  exercises  by  delegation  a  part  of 
the  sovereignty  of  the  state.  In  the  other 
character  it  is  a  m.ere  legal  entity  or  ju- 
ristic person.  In  the  latter  character  it 
stands  for  the  community  in  the  adminis- 
tration of  local  affairs  wholly  beyond  the 
sphere  of  the  public  purposes  for  which 
its  governmental  powers  are  conferred." 
Vilas  V.  Manila,  220  U.  S.  345,  55  L.  Ed. 
491.  31   S.   Ct.  416. 

"The  distinction  is  observed  in  South 
Carolina  v.  United  States,  199  U.  S.  4-37, 
461,  50  L.  Ed.  261,  26  S.  Ct.  110,  where 
Lloyd  V.  Xew  York,  5  N.  Y.  369,  374,  55 
Am.  Dec.  347,  and  Western  Sav.  Fund  Soc. 
V.  Philadelphia,  31  Pa.  175,  72  Am.  Dec. 
730.  are  cited  and  approved. 

"In  Lloyd  v.  New  York,  supra  (5  N.  Y. 
369),  it  is  said:  'The  corporation  of  the 
city  of  New  York  possesses  two  kinds  of 
powers:  one  governmental  and  public, 
and  to  the  extent  they  are  held  and  exor- 
cised, is  clothed  with  sovereignty;  the 
other  private,  and  to  the  extent  they  are 
held  and  exercised,  is  a  legal  individual. 
The  former  are  given  and  used  for  pub- 
lic purposes,  the  latter  for  private  pur- 
poses. While  in  the  exercise  of  the 
former,  the  corporation  is  a  municipal 
government;  and  while  in  the  exer- 
cise of  the  latter,  is  a  corporate  leeal 
individual.'  See,  also,  Dill.  Mun.  Corp.  4th 
Ed.  66;  Petersburg  v.  Applegarth,  28  Gratt. 
321,  343,  26  Am.  Rep.  357,  and  Oliver  v. 
Worcester,  102  Mass.  489.  3  Am.  Rep.  485." 
Vilas  V.  Manila,  220  U.  S.  345,  55  L.  Ed. 
491,  31   S.  Ct.  416. 

569-98a.  Water,  etc..  Co.  v.  Hutchinson,. 
207  U.  S.  385,  52  L.  Ed.  257,  28  S.  Ct.  135. 


898 


\'ol.  \"lil. 


MUXICIPAL  CORPORA  TIOXS. 


576-586 


pal  governments  the  police  powers  essential  to  the  preservation  of  law  and 
order.  It  imposes  upon  them  the  duty  of  protecting  property  situated  within 
their  limits  from  the  violence  of  such  public  breaches  of  the  peace  as  are  mobs 
and  riots.-^-^'^ 

29.    Light  or  Illumixatiox. — Gas  Rates. — See  ante,  Gas,  p.  607. 

31.  Water  Supply. — See  post,  A\'ater  Compaxies  axd  Waterworks. 

35.  As   TO   BuiLDixGs. — Building   Regulations. — See   post,   Police    Power. 

VI.    Municipal  Contracts. 

A.  Power  to  Contract — 1.  Ix  Gexeral. — A  municipal  contract  is  void 
where  authority  to  make  the  contract  was  not  vested  in  the  municipality.'*'^'' 

I.  Particular  Contracts — 1.  Graxt  oe  Fraxchise — a.  In  General. — See 
ante,  Corporatioxs,  p.  381.  See,  also,  post,  "Power  to  Grant  Exclusive  Priv- 
ilege or  Franchise  and  Create  Monopolies,"  \'l,   I,   1.  h. 

h.  Pozvcr  to  Grant  E.\'chisivc  Prkilcgc  or  Franchise  and  Create  Monopolies. 
— The  power  of  a  municipal  corporation  to  grant  exclusive  privileges  must  be 
conferred  by  explicit  terms.  If  inferred  from  other  powers,  it  is  not  enough 
that  the  power  is  convenient  to  other  powers;  it  must  be  indispensable  to  them.''^'^ 


576-33a.  Chicago  v.  Sturges,  222  U.  S. 
3i:;.  .56  L.   Ed.  21.j.  32  S.  Ci      - 

579-47a.  Home  Tel.,  etc.,  Co.  z:  Los  An- 
geles, 211  U.  S.  265,  53  L.  Ed.  176.  29  S. 
Ct.  50. 

586-91a.  Water,  etc.,  Co.  z:  Hutchinson, 
207  U.  S.  385,  52  L.  Ed.  257,  28  S.  Ct.  135, 
following  Freeport  Water  Co  z\  Free- 
port,  180  U.  S.  587,  598,  45  L.  Ed.  679,  21 
S.  Ct.  493;  Rogers  Park  Water  Co.  v.  ter- 
gus,  180  U.  S.  624.  45  L.  Ed.  702.  21  S.  Ct. 
490;  Joplin  z'.  Southwest  Missouri  Light 
Co..  191  U.  S.  150,  48  L.  Ed.  127.  24  S.  Ct. 
43.  and  Owensboro  z\  Owensboro  Water- 
works Co..  191  U.  S.  358,  48  L.  Ed.  217. 
24  <.  Ct.  82. 

"There  are  privileges  which  may  exist 
in  their  full  entirety  in  more  than  one  per- 
son, and  the  privilege  or  franchise  or 
right  to  supply  the  inhabitants  of  a  city 
with  light  or  water  is  of  this  kind.  A 
grant  of  power  to  confer  such  privilege 
is  not  necessarily  a  grant  of  power  to 
make  it  exclusive.  To  hold  otherwise 
would  impugn  the  cited  cases  and  their 
reasoning.  It  would  destroy  the  rule  of 
strict  construction.  The  foundation  of 
that  rule  requires  the  grant  of  such 
power  to  be  explicit — explicit  in  the  letter 
of  the  grant — or,  if  inferred  from  other 
powers  or  purposes,  to  be  not  only  con- 
venient to  them,  but  indispensable  to  them. 
And  these  conditions  are  imperative,  too 
firm  of  authority  to  be  disregarded  upon 
the  petition  of  equities,  however  strong." 
Water,  etc..  Co.  z:  Hutchinson,  207  U.  S. 
385,  52  L.   Ed.  257,  28  S.  Ct.  135. 

The  above  rule  which  governs  in  such 
cases  was  expressed  in  Freeport  Water 
Co.  V.  Freeport,  180  U.  S.  587,  598.  45  L. 
Ed.  679,  21  S.  Ct.  493,  where  a  statute  of 
Illinois  was  considered  which  gave  power 
to  cities  and  villages  to  provide  for  the 
supply  of  water  at  such  rates  as  might  be 
fixed  by  ordinance  and  for  a  period  not 
exceeding   thirty  years.     Water,   etc.,   Co. 


V.  Hutchinson.  207  U.  S.  385,  52  L.  Ed.  257, 
28  S.  Ct.  135. 

"The  doctrine  was  recognized  as  exist- 
ing in  Walla  Walla  z:  W'alla  Walla  Water 
Co.,  172  U.  S.  1,  43  L.  Ed.  341,  19  S.  Ct.  77, 
and  in  Vicksburg  v.  Vicksburg  Water- 
works Co.,  202  U.  S.  453,  5a  L.  Ed.  1102, 
26  S.  Ct.  660.  In  the  two  latter  cases  tiie 
power  of  the  respective  cities  to  make  a 
contract  precluding  them  from  building 
waterworks  and  operating  their  own  water 
systems  was  declared.  In  the  Vicksburg 
case  it  was  pointed  out  that  the  power  of 
the  city  to  exclude  itself  from  building 
waterworks  of  its  own  was  recognized  to 
exist  by  the  supreme  court  of  Mississippi."' 
W^ater,  etc.,  Co.  v.  Hutchinson,  207  U.  S. 
385,  52  L.  Ed.  257,  28  S.  Ct.  135. 

"In  Vicksburg  z:  Vicksburg  Waterworks 
Co.,  206  U.  S.  496.  51  L.  Ed.  \l55,  27  S.  Ct. 
762,  a  contract  of  the  cit3%  fixing  a  maxi- 
mum rate,  was  sustained  upon  the  author- 
ity of  the  decisions  of  the  supreme  court 
of  the  state,  holding  that,  under  a  broad 
grant,  of  power  conferring,  without  re- 
striction or  limitation  upon  the  city,  the 
right  to  make  a  contract  for  a  supply  of 
the  water,  it  was  within  the  right  of  the 
city  council,  in  the  exercise  of  that  power, 
to  make  a  binding  contract  fixing  the  max- 
imum rate  at  which  the  water  should  be 
sujiplied  to  the  inhabitants  of  the  city  for 
a  limited  term  of  years."  Water,  etc.,  Co. 
V.  Hutchinson,  207  U.  S.  385,  52  L.  Ed.  257, 
28  S.  Ct.  135. 

"In  Detroit,  etc.,  St.  R.  Co.  z'.  Detroit 
Railway,  171  U.  S.  48,  43  L.  Ed.  67,  18  S. 
Ct.  732,  following  and  applying  the  doc- 
trine of  previous  ca-^es.  it  was  said  'hat 
the  power  to  grant  an  exclusive  privilege 
must  be  expressly  given,  or,  if  inferred 
from  other  powers,  must  be  indispensable 
to  them,  and  that  this  principle  was  firmly 
fixed  by  authority.  See,  also.  Dill.  Mun. 
Corp..  4th    Ed.,   §   so.     'I'he   case   was   con- 


899 


586 


MUNICIPAL  CORPORATIONS. 


Vol.  VIII. 


c.  Construction  of  Grants. — Ordinances  granting  franchises  and  special  priv- 
ileges are  not  to  be  extended  by  implication,  and  all  that  is  granted  must  be 
found  in  the  plain  terms  of  the  act.  •  Recognizing  this  principle,  it  must  also 
be  remembered  that  grants  of  this  character,  when  embodying  the  terms  of  a 
contract,  are  protected  by  the  federal  constitution  from  impairment  by  subse- 
quent state  legislation,  and  notwithstanding  the  principle  of  strict  construction, 
whatever  is  plainly  granted  can  not  be  taken  from  the  parties  entitled  thereto 
by  such  legislative  enactments.  Statutes  and  ordinances  of  this  character  are 
not  to  be  extended  by  construction,  nor  should  they  be  deprived  of  their  mean- 
ing, if  it  is  plainly  and  clearly  expressed.^^^ 


cerned  with  a  grant  to  a  street  railway, 
and,  in  the  argument  of  the  cases  at  bar, 
a  distinction  is  asserted  between  an  ex- 
clusive privilege  to  occupy  the  surface  of 
streets  and  interfere  with  'a  matter  of 
common  right,'  and  a  privilege  to  use  the 
streets  below  the  surface  'as  incidental 
only  and  subsidiary  to  the  performance  of 
a  contract  pertaining  to  another  matter;' 
and  on  this  distinction,  it  is  argued,  the 
'first  must  show  an  express  grant  of  au- 
thority' to  make  the  right  exclusive,  but 
that  the  second  is  not  limited  by  such  re- 
quirement. The  distinction  is  only  one  of 
degree,  and  has  not  been  considered  as 
varying  the  application  of  the  rule  of  con- 
struction announced."'  Water,  etc.,  Co. 
V.  Hutchinson,  207  U.  S.  ."^SS.  52  L.  Ed.  257, 
28   S.   Ct.   135. 

Municipal  power  to  grant  an  exclusive 
franchise  can  not  be  deduced  from  provi- 
sions of  the  Kansas  statutes  conferring, 
inter  alia,  power  to  provide  for  the  gen- 
eral welfare,  and  to  enable  the  municipal- 
ity to  construct  water  and  lighting  plants 
of  its  own,  or  to  make  contracts  with  any 
person  or  company  for  such  purposes,  and 
giving  such  person  or  company  the  priv- 
ilege of  furnishing  light  for  streets,  lanes, 
or  alleys  for  any  length  of  time  not  ex- 
ceeding 21  years,  especially  where  the  sec- 
tion most  relied  upon  as  conferring  this 
power  had  been  so  amended  before  its  at- 
tempted exercise  as  to  omit  the  words 
"the  exclusive  privilege."  Judgment  (C. 
C.  1906),  144  F.  256,  affirmed.  Water,  etc., 
Co.  V.  Hutchinson,  207  U.  S.  385,  52  L.  Ed. 
257,  28  S.  Ct.  135. 

"It  is,  however,  contended  that  the  stat- 
utes of  Kansas  fulfill  the  rule  by  the  con- 
struction put  upon  them  by  the  supreme 
court  of  the  state,  and  the  case  is  there- 
fore brought,  it  is  further  contended, 
within  the  rule  of  Vicksburg  v.  Vicksburg 
Waterworks  Co.,  206  U.  S.  496,  51  L.  Ed. 
1155,  27  S.  Ct.  762.  The  Kansas  cases  re- 
lied on  are  Eureka  Light  &  Ice  Co.  v.  Eu- 
reka, 5  Kan.  App.  669,  48  Pac.  935;  State 
V.  Topeka,  68  Kan.  177,  74  Pac.  647;  Chcr- 
ryvale  Water  Co.  v.  Cherryvale,  65  Kan. 
219,  69  Pac.  176.  In  those  cases  the  court 
did  say,  in  determining  what  duties  were 
imposed  or  powers  conferred  upon  the 
city,   that   the   statute   should  be  liberally 


construed  to  effectuate  the  general  pur- 
pose of  the  legislature,  but  the  powers 
under  consideration  were  ditiferent  from 
the  powers  herein  involved,  otherwise 
those  cases  would  not  be  reconcilable  with 
Paine  v.  Spratley,  5  Kan.  545,  and  Cofifey- 
ville  Min.  &  Gas  Co.  v.  Citizens'  Natural 
Gas  &  Min.  Co.,  55  Kan.  178,  40  Pac.  326. 
In  Plaine  v.  Spratley  the  general  princi- 
ples respecting  the  power  of  municipal 
corporations  were  said  to  be  those  which 
we  have  expressed.  In  Coffeyville  Min. 
&  Gas  Co.  V.  Citizens'  Natural  Gas  &  Min. 
Co.,  one  of  the  companies,  claiining  an 
exclusive  right,  sought  to  test  the  validity 
of  two  city  ordinances,  granting  the  other 
the  use  of  the  streets,  and  to  restrict  it 
from  using  the  privileges  gt  anted.  For 
this  purpose  the  court  said  the  plaintifif 
company  clearly  had  no  standing  in  court, 
because  the  city  authorities  alone  were 
charged  with  the  duty  of  preventing  en- 
croachment on  the  streets,  and  they,  alone, 
could  test  the  validity  of  the  ordinance. 
The  court  said  further:  'The  city  did  not, 
in  terms,  attempt  to  give  the  plaintifif 
company  a  right  to  the  exclusive  use  of 
the  streets  and  alleys  for  the  purpose  of 
laying  its  pipes.  If  it  had  attempted  to  do 
so  it  could  not,  for  want  of  power.'  " 
Water,  etc..  Co.  v.  Hutchinson,  207  U.  S. 
385,  52  L.   Ed.  257,  28  S.  Ct.  135. 

"The  conclusion  from  these  cases  is  re- 
inforced by  a  change  in  the  statutes  con- 
ferring power  upon  cities  of  the  state. 
Section  65,  supra,  was  §  30  of  the  statutes 
of  1868,  and  as  such  gave  to  a  city  the 
power  to  make  the  contracts  therein  ex- 
pressed, and  give  'the  exclusive  privilege 
of  furnishing  gas  to  light  the  streets, 
lanes,  and  alleys  of  said  city  for  any  length 
of  time,  not  exceeding  twenty-one  years.' 
This  provision  Was  repeated  in  §  59  of  the 
statutes  of  1872.  But  in  1885  that  section 
was  amended,  so  as  to  omit  the  words  'the 
exclusive  privilege.'  Statutes  1885,  p.  147, 
§  7.  And  as  thus  amended  it  was  re-en- 
acted in  1901.  Statutes  1901,  §  1000." 
Water,  etc.,  Co.  v.  Hutchinson,  207  U.  S. 
385,  52  L.  Ed.  257,  28  S.  Ct.  135. 

586-92a.  Minneapolis  v.  Minneapolis  St. 
R.  Co.,  215  U.  S.  417,  54  L.  Ed.  259,  30  S. 
Ct.  118.  See  ante,  CORPORATIONS,  p. 
381. 


900 


\'ol.   \'III. 


MUNICIPAL  CORPORATIONS. 


587-588 


2.  Contracts  Concerning  or  Restricting  Governmental  Functions  or 
Powers — a.  In  General — The  surrender  by  a  municipality,  by  contract,  of  a 
power  of  government,  though  in  certain  well-defined  cases  it  may  be  made  by 
legislative  authority,  is  a  very  grave  act,  and  the  surrender  itself,  as  well  as 
the  authority  to  make  it,  must  be  closely  scrutinized.  No  other  body  than  the 
supreme  legislature  (the  legislature  of  the  state)  has  the  authority  to  make 
such  a  surrender,  unless  the  authority  is  clearly  delegated  to  it  by  the  supreme 
legislature.  The  general  powers  of  a  municipality  or  of  any  other  political 
subdivision  of  the  state  are  not  sufficient.  Specific  authority  for  that  purpose  is 
required.  This  proposition  is  sustained  by  all  the  decisions  of  the  supreme 
court  of  the  United  States. ^^a 

b.  Contracts  Abridging  Pozcer  to  Fix  Rates. — A  state  may  authorize  one  of 
its  municipal  corporations  to  establish,  by  an  inviolable  contract,  the  rates  to  be 
charged  by  a  public  service  corporation  (or  natural  person)  for  a  definite  term, 
not  grossly  unreasonable  in  point  of  time,  and  the  effect  of  such  a  contract  is 
to  suspend,  during  the  life  of  the  contract,  the  governmental  power  of  fixing 
and  regulating  the  rates. ^'^'' 


587-95a.  Home  Tel.,  etc.,  Co.  v.  Los  An- 
geles, 211  U.  S.  265,  53  L.  Ed.  176,  29  S. 
Ct.  50. 

588-96a.  Home  Tel.,  etc.,  Co.  v.  Los  An- 
geles, 211  U.  S.  265,  53  L.  Ed.  176,  29  S. 
Ct.  50,  following  Detroit  v.  Detroit,  etc., 
St.  R.  Co.,  184  U.  S.  368,  382,  46  L.  Ed.  592, 
22  S.  Ct.  410,  and  Vicksburg  v.  Vicksburg 
Waterworks  Co.,  206  U.  S.  496,  508,  51  L. 
Ed.  1155,  27  S.  Ct.  762. 

"But  for  the  very  reason  that  such  a 
contract  has  the  effect  of  extinguishing 
pro  tanto  an  undoubted  power  of  govern- 
ment, both  its  existence  and  the  author- 
ity to  make  it  must  clearly  and  unmistak- 
ably appear,  and  all  doubts  must  be  re- 
solved in  favor  of  the  continuance  of  the 
power.  Providence  Bank  v.  Billings,  4 
Pet.  514,  561,  7  L.  Ed.  939;  Railroad  Com- 
mission Cases,  116  U.  S.  307,  325,  29  L.  Ed. 
636,  6  S.  Ct.  334,  388,  3191;  Vicksburg,  etc., 
R.  Co.  V.  Dennis,  116  U.  S.  665,  29  L.  Ed. 
770,  6  S.  Ct.  625;  Freeport  Water  Co.  v. 
Freeport,  180  U.  S.  587,  611,  45  L.  Ed.  679, 
21  S.  Ct.  493;  Stanislaus  County  v.  San 
Joaquin,  etc.,  Irrig.  Co.,  192  U.  S.  201,  211, 
48  L.  Ed.  406,  24  S.  Ct.  241;  Metropolitan 
St.  R.  Co.  V.  New  York  State  Board,  199 
U.  S.  1,  50  L.  Ed.  65,  25  S.  Ct.  705.  And 
see  Water,  etc.,  Co.  z'.  Hutchinson,  207  U. 
S.  385,  52  L.  Ed.  257,  28  S.  Ct.  135."  Home 
Tel.,  etc.,  Co.  v.  Los  Angeles,  211  U.  S. 
265,  53  L.  Ed.  176.  29  S.  Ct.  50. 

"It  is  obvious  that  no  case,  unless  it  is 
identical  in  its  facts,  can  serve  as  a  con- 
trolling precedent  for  another,  for  differ- 
ences, slight  in  themselves,  may,  through 
their  relation  with  other  facts,  turn  the 
balance  one  wav  or  the  other.  Illustra- 
tions of  the  truth  of  this  may  be  found 
in  the  cases  of  Freeport  Water  Co.  v. 
Freeport,  180  U.  S.  587,  45  L.  Ed.  679,  21 
S.  Ct.  493;  Rogers  Park  Water  Co.  v.  Fer- 
gus, 180  U.  S.  624,  45  L.  Ed.  702,  21  S.  Ct. 
490,  and  Knoxville  Water  Co.  i\  Knox- 
ville,  189  U.  S.  434,  47  L.  Ed.  887,  23  S.  Ct. 


531,  where  no  authorized  contract  was 
found,  as  contrasted  with  Detroit  v.  De- 
troit, etc.,  St.  R.  Co.,  184  U.  S.  368.  46  L. 
Ed.  592,  22  S.  Ct.  410,  and  Cleveland  v. 
Cleveland,  etc.,  R.  Co.,  194  U.  S.  517,  48 
L.  Ed.  1102,  24  S.  Ct.  756,  where  a  con- 
trary conclusion  was  reached."  Home 
Tel.,  etc.,  Co.  v.  Los  Angeles,  211  U.  S. 
265,  53  L.   Ed.  176,  29  S.   Ct.  50. 

"The  decisions  of  this  court  *  *  *  where 
a  contract  of  this  kind  was  found  and  en- 
forced, all  show  immistakably  legislative 
authority  to  enter  into  the  contract.  In 
Los  Angeles  v.  Los  Angeles,  etc.,  Water 
Co.,  177  U.  S.  568,  44  L.  Ed.  886,  20  S.  Ct. 
736,  the  contract  was  in  specific  terms 
ratified  and  confirmed  by  the  legislature. 
In  Detroit  v.  Detroit,  etc.,  St.  R.  Co.,  184 
U.  S.  368,  46  L.  Ed.  592,  22  S.  Ct.  410,  the 
contract  was  made  in  obedience  to  an 
act  of  the  legislature  that  the  rates  should 
be  "estalilished  liy  agreement  between  said 
company  and  the  corporate  authorities.' 
The  opinion  of  the  court,  after  saying  (p. 
382),  'it  may  be  conceded  that  clear  au- 
thority from  the  legislature  is  needed  to 
enable  the  city  to  make  a  contract  or 
agreement  like  the  ordinances  in  ques- 
tion, including  rates  of  fare,"  pointed  out 
(p.  386)  that  'it  was  made  matter  of 
agreement  by  the  express  command  of 
the  legislature.'"  Home  Tel.,  etc.,  Co.  v. 
Los  Angeles,  211  U.  S.  265,  53  L.  Ed.  176, 
29  S.  Ct.  50. 

"In  Cleveland  ;■.  Cleveland,  etc..  R.  Co.. 
194  U.  S.  517,  48  L.  Ed.  1102,  24  S.  Ct. 
756,  the  legislative  authority  conferred 
upon  the  municipality  was  described  in 
the  opinion  of  the  court  (p.  534)  as  'com.- 
prehensive  power  to  contract  with  street 
railway  companies  in  respect  to  the  terms 
and  conditions  upon  which  such  roads 
might  be  constructed,  operated,  extended, 
and  consolidjjted.'  In  Cleveland  v.  Cleve- 
land Elect.  R.  Co.,  201  U.  S.  529,  50  L.  Ed. 
854,  26   S.  Ct.   513,  precisely  the  same  au- 


901 


595-597 


MUXICIPAL  CORPORATIOXS. 


Vol.  VIII. 


4.  CoxTRACTs  Creating  Indebtedness — c.  Source  of  Payment. — Debt  of 
City  or  Charg-e  on  Particular  Fund. — A  claim  under  a  contract  to  supply 
coal  to  a  municipality  for  use  in  operating  its  waterworks  system,  apparently' 
entered  into  upon  tlie  general  credit  of  the  city,  does  not  constitute  a  charge 
upon  the  property  and  funds  held  in  trust  by  the  city  to  be  devoted  to  the 
establishment  and  maintenance  of  such  system. ^^^  A  debt  incurred  for  coal  to 
be  used  in  a  municipal  waterworks  system  is  a  municipal  obligation,  although, 
the  municipality  holds  property  and  funds  in  trust  to  be  devoted  to  the  establish- 
ment and  maintenance  of  such  system. ^'^'^ 

6.  Contract  zvith  Judgment  Creditor  as  to  Order  of  Payment. — A  munici- 
pality authorized  to  levy  an  annual  tax  to  create  a  judgment  fund,  may  make 
a  valid  agreement  with  its  judgment  creditors  to  pay  the  judgments  against 
it  out  of   such   fund,   in  the  order  of  their  rendition. ^^^ 

VII.    Municipal  Property. 

A.    Acquisition  and  Title — 1.    In  General. — See  note  38. 

3.  Property  Acol-iraulE  and  Purposes  oe  Acquisition — b.  Private  Prop- 
erty Xot  of  a  Governmental  Nature.^ — Alunicipal  corporations  are  sometimes  au- 
thorized to  hold  and  do  hold  property  for  the  same  purposes  that  property  is 
held  by  private  corporations  or  individuals.  The  distinction  between  property 
owned  by  municipal  corporations  in  their  public  and  governmental  capacities 
and  that" owned  by  them  in  their  private  capacities,  though  difificult  to  define, 
has  been  approved  by  many  of  the  state  courts.  As  to  such  property  a  munici- 
pality may  be  entitled  to  constitutional  protection.'*"'' 


ihority  appeared.  In  Vicksburg  z\  Vicks- 
burg  Waterworks  Co.,  206  U.  S.  496,  51 
L.  Ed.  1155.  27  S.  Ct.  762,  the  court  said 
(p.  508) :  The  grant  of  legislative  power 
upon  its  face  is  unrestricted,  and  au- 
thorizes the  city  "to  provide  for  the  erec- 
tion and  maintenances  of  a  sj^stem  of 
waterworks  to  supply  said  city  with 
water,  and  to  that  end  to  contract  with 
a  party  or  parties  who  shall  build  and 
operate  waterworks.""  '  Moreover,  in  this 
case  the  construction  of  the  .  supreme 
court  of  ]Mississippi  of  its  own  statutes 
was  followed.'"  Home  Tel.,  etc..  Co.  z'. 
Los  Angeles.  211  U.  S.  265.  53  L.  Ed.  176. 
29  S.   Ct.   50. 

"On  the  other  hand,  it  was  held  in 
Freeport  Water  Co.  r.  Freeport.  180  U. 
S.  587,  45  L.  Ed.  679.  21  S.  Ct.  493.  that 
two  acts  of  the  legislature,  passed  on  suc- 
cessive days,  authorizing  municipalities  to 
'contract  for  a  supply  of  water  for  pub- 
lic use  for  a  period  not  exceeding  thirty 
years,"  and  to  authorize  private  persons 
to  construct  waterworks  'and  maintain 
the  same  at  such  rates  as  may  be  fixed  by 
ordinance,  and  for  a  period  not  exceeding 
thirty  years,'  did  not  confer  an  authority 
upon  the  municipality  to  contract  that  the 
water  company  should  be  exempt  from 
the  exercise  of  the  governmental  power 
to  regulate  rates.  In  this  case,  too.  the 
construction  of  the  highest  court  of  the 
state  was  followed.  See  Rogers  Park 
Water  Co.  v.  Fergus.  180  U.  S.  624.  45  L. 
Ed.  702,  21  S.  Ct.  490.  All  these  cases 
agree  that  the  legislative  authority  to  the 


municipality  to  make  the  contract  must 
clearly  and  unmistakably  appear."'  Home 
Tel.,  etc..  Co.  v.  Los  Angeles,  211  U.  S. 
265,   53   L.    Ed.   176.  29   S.   Ct.   50. 

595-28a.  Vilas  r.  Manila,  220  U.  S.  345. 
55  L.  Ed.  491.  31   S.  Ct.  416. 

595-28b.  Vilas  z:  Manila.  220  U.  S.  345. 
55    L.    Ed.    491.   31    S.    Ct.    416. 

"The  designation  of  the  city  in  the  pe- 
tition as  trustee  may  be  regarded  as  de- 
scriptive. The  debt  having  been  incurred 
by  the  city,  it  must  be  regarded  as  a  city 
liability.  Taylor  z'..  Davis,  110  U.  S.  330, 
336.  28  L.  Ed.  163.  4  S.  Ct.  147.'"  Vilas  v. 
Manila.  220  U.  S.  345.  55  L.  Ed.  491,  31 
S.  Ct.  416. 

596-35a.  Beadles  v.  Smyser,  209  U.  S. 
393.  52  L.  Ed.  849.  28  S.  Ct.  522.  so  holding 
under  1  Wilson's  Okla.  Stat.  1903,  §  466. 

596-38.  Power  to  acquire,  hold  and 
manage. — For  the  purpose  of  properly 
and  efficiently  executing  the  governmen- 
tal power  entrusted  to  them,  municipal 
corporations  usually  are  given  the  power 
lo  acquire,  hold,  and  manage  personal 
and  real  propertv.  Hunter  z\  Pittsburgh, 
207  U.   S.   161.   52'  L.    Ed.   151.   28   S.   Ct.   40. 

597-46a.  Hunter  v.  Pittsburgh.  207  U. 
S.  161.  52  L.  Ed.  151,  28  S.  Ct.  40.  See 
post.    "Legislative    Control."    VH.    E. 

A  recital  of  facts  in  an  exception  to 
show  how  the  taxes  of  the  citizens  of 
Allegheny  would  be  increased  by  annexa- 
tion to  Pittsburg,  in  connection  with 
which  it  is  alleged  that  while  Pittsburg 
intends  to  spend  large  sums  of  money  in 
the    purchase    of    the    water    plant    of    a 


902 


Vol.  VIII. 


MUXICIPAL  CORPORA TIONS. 


600-601 


D.  Liability  of  Property  for  Debts— 1.    Ix  Gexer.\l.— See  note  70. 

E.  Legislative  Control— 1.  Ix  Gexeral.— The  absolute  power  of  the  state 
over  the  property  of  municipal  corporations  does  not  extend  beyond  the  prop- 
erty held  and  used  for  governmental  purposes.  Such  corporations  are  some- 
times authorized  to  hold  and  do  hold  property  for  the  same  purposes  that 
property  is  held  by  private  corporations  or  individuals.  The  distinction  be- 
tween property  owned  by  municipal  corporations  in  their  public  and  govern- 
mental capacity  and  that  owned  by  them  in  their  private  capacity,  though  diffi- 
cult to  define,  has  been  approved  by  many  of  the  states.  As  to  the  latter  class 
of  property,  the  legislature  is  not  omnipotent. ■''^*^ 


private  company  and  for  the  constriiction 
of  an  electric  light  plant,  Allegheny  '"has 
improved  its  streets,  established  its  own 
system  of  electric  lighting,  and  estab- 
lished a  satisfactory  water  supply,"  falls 
far  short  of  a  statement  that  the  city  of 
Allegheny  holds  any  property  in  its  priv- 
ate and  proprietary  capacity.  Hunter  v. 
Pittsburgh,  207  U.  S.  161,  52  L.  Ed.  151, 
28    S.    Ct.   40. 

An  allegation  that  the  taxpayers  were 
deprived  of  their  property  without  due 
process  of  law  because  of  the  increased 
taxation  which  would  result  from  the 
annexation  of  Allegheny  to  Pittsburg  is 
not  an  allegation  that  Allegheny  had  been 
deprived  of  its  property  without  due 
process  of  law.  Nor  is  the  situation 
varied  by  the  fact  that,  in  the  superior 
court,  Allegheny  was  permitted  to  inter- 
vene. The  city  made  no  new  allegations 
and  raised  no  new  questions,  but  was 
content  to  rest  upon  the  record  as  it  was 
made  up.  Hunter  v.  Pittsburgh,  207  U. 
S.    161,    52    L.    Ed.     151,      28      S.      Ct.      40. 

600-70.  "There  is  some  difference  of 
view  in  the  opinion  of  the  courts  upon 
the  subject  of  executions  against  mu- 
nicipalities, and  in  some  of  them  it  is 
held  that  property  of  a  municipality  may 
be  reached  on  execution  which  is  held 
for  profit,  and  not  charged  with  any  pub- 
lic trust  or  use.  It  was  held  in  this  court 
that  the  public  property  of  a  municipal 
corporation  can  not  be  seized  upon  ex- 
ecution. Klein  v.  New  Orleans,  99  U.  S. 
149,  25  L.  Ed.  430."  Beadles  v.  Smyser, 
209  U.   S.  393,  52  L.   Ed.  849,  28   S.   Ct.  522. 

"Judge  Dillon,  in  his  work  on  Mu- 
nicioal  Corporations,  4th  Ed.,  vol.  2,  §  576. 
notices  the  differences  of  ruling  on  the 
subject,  and  states  as  his  own  conclusion: 
'On  principle,  in  the  absence  of  statuable 
provision,  or  legislative  policy  in  the  par- 
ticular state,  it  would  seem  to  be  a  sound 
view  to  hold  that  the  right  to  contract 
and  the  power  to  be  sued  give  to  the 
creditor  a  right  to  recover  judgment; 
that  judgment  should  be  enforceable  by 
execution  against  the  strictly  private 
property  of  the  corporation,  Init  not 
against    any   property   owned   or   used   by 


the  corporation  for  public  purposes,  such 
as  public  buildings,  hospitals,  and  ceme- 
teries, fire  engines  and  apparatus,  water- 
works, and  the  like;  and  that  judgments 
should  not  be  deemed  liens  upon  real 
property  except  when  it  may  be  taken  in 
execution.' "  Beadles  v.  Smyser,  209  U. 
S.  393.  52  L.   Ed.  849.  28   S.   Ct.  522. 

601-80a.  Hunter  v.  Pittsburgh,  207  U. 
S.    161,   52    L.    Ed.    151,   28    S.    Ct.    40. 

"If  the  distinction  is  recognized  it  sug- 
gests the  question  whether  property  of  a 
municipal  corporation  owned  in  its  priv- 
ate and  proprietary  capacity  may  be  taken 
from  it  against  its  will  and  without  coin- 
pensation.  Mr.  Dillon  says  truly  that  the 
question  has  never  arisen  directly  for  ad- 
judication in  this  court.  But  it  and  the 
distinction  upon  which  it  is  based  have 
several  times  been  noticed.  Tippecanoe 
County  v.  Lucas,  93  U.  S.  108,  115,  23  L. 
Ed.  822;  Meriweather  z\  Garrett,  102  U. 
S.  472,  530,  26  L.  Ed.  197;  Essex,  etc.. 
Road  Board  v.  Skinkle,  140  U.  S.  334,  342, 
35  L.  Ed.  446,  11  S.  Ct.  790;  New  Orleans 
T'.  Xew  Orleans  Waterworks  Co.,  142  U. 
S.  79,  91,  35  L.  Ed.  943,  12  S.  Ct.  142;  Cov- 
ington V.  Kentuckv,  173  U.  S.  231,  240,  43 
L.  Ed.  679,  19  S.  Ct.  383;  Worcester  v. 
Worcester,  etc..  St.  R.  Co.,  196  U.  S.  539. 
551.  49  L.  Ed.  591,  25  S.  Ct.  327;  Graham 
r.  Folsom.  200  U.  S.  248,  50  L.  Ed.  464,  26 
S.  Ct.  245."  Hunter  r.  Pittsburg,  207  U. 
S.  ir;i.  52  L.  Ed.  151,  28  S.  Ct.  40. 

Effect  of  cession  of  territory. — Public 
property  belonging  to  the  city  of  Manila 
as  a  inunicipal  corporation  can  not  be 
regarded  as  having  passed  to  the  United 
States  under  the  cession  by  Spain  of  the 
Philippine  Islands  for  a  cash  considera- 
tion, under  the  treatj^  of  Paris  of  Decem- 
l>er  10,  1898,  of  all  "buildings,  wharves, 
barracks,  forts,  structures,  public  high- 
ways, and  other  immovable  property 
which,  in  conformitj'  with  law,  belong  to 
the  public  domain,  and  as  such  belong 
to  the  crown  of  Spain,"  especiallj^  in  view 
of  the  further  stipulation  protecting  and 
safeguarding  the  property  and  property 
rights  of  municipal  corporations  precisely 
3S  were  those  of  individuals.  Vilas  v. 
Manila,  220  U.  S.  345,  55  L.  Ed.  491,  31 
S.    Ct.    416. 


903 


602-612 


MUNICIPAL  CORPORATIONS. 


Vol.  VIII. 


VIII.    Municipal  Torts. 

A.     In   General. — See  note  88. 

K.  Mob  Violence. — See  ante,  Constitutional  Law,  p.  264;  Due  Proc- 
ess Of  Law,  p.  475.    And  see  ante,  "In  General,"  V,  L,  17,  a. 

IX.    Governing  Bodies,  Administrative  Boards  and  Officers  and  Agents. 

0.  Municipal  Officers  and  Agents — 8.  Termination  of  Oeeice — Hold- 
ing Over. — Extension  of  Term. — The  legislature  may  extend  the  terms  of 
the  members  of  a  city  council. *5*^^ 

X.     Legislative   Control. 

A.  In  General. — Speaking  generally,  the' regulation  of  municipal  corpora- 
tions is  a  matter  peculiarly  within  the  domain  of  state  control.^^'^ 

E.  Powers.— See   ante,   "Legislative   Control,"   VII,   E. 

F.  Officers  and  Agents. — See  ante,  "Termination  of  Office — Holding 
Over,"  IX,  C,  8. 

1.  Power  of  Taxation  and  Revenue — 1.    In  General. — See  note  70. 


602-88.  Municipal  torts. — "The  policy 
of  imposing  liability  (for  torts)  upon  a 
civil  subdivision  of  government  exercis- 
ing delegated  police  power  is  familiar  to 
every  student  of  the  common  law^.  We 
find  it  recognized  in  the  beginning  of  the 
police  system  of  Anglo-Saxon  people." 
Chicago  V.  Sturges,  222  U.  S.  313,  56  L. 
Ed.   215,   32   S.   Ct.  92. 

611-60a.  In  re  City  of  Pittsburg,  217 
Pa.  222,  66  Atl.  34S,  judgment  affirmed  in 
Hunter  v.  Pittsburg,  207  U.  S.  161,  52  L. 
Ed.   151,  28   S.  Ct.  40. 

Act  February  7,  1906  (P.  L.  12,  §  10), 
extending  the  term  of  councilmen  in  the 
city  of  Allegheny  on  its  consolidation 
with  the  city  of  Pittsburg,  is  not  in  viola- 
tion of  Const.,  art.  3,  §  13,  as  extending 
the  term  of  a  public  officer.  In  re  City 
of  Pittsburg,  66  A.  348.  217  Pa.  227;  Ap- 
peal of  Hunter,  Id.  Judgment  affirmed 
in  Hunter  v.  Pittsburgh,  207  U.  S.  161,  52 
L.    Ed.   151,   28   S.   Ct.   40. 

611-65a.  Braxton  County  Court  v.  State 
Tax  Comm'rs.  208  U.  S.  192.  .52  L.  Ed. 
450,  28  S.  Ct.  275. 

"The  number,  nature,  and  duration  of 
the  powers  conferred  upon  these  corpora- 
tions and  the  territory  over  which  they 
shall  be  exercised  rests  in  the  absolute 
discretion  of  the  state.  Neither  their 
charters,  nor  any  law  conferring  govern- 
mental powers,  or  vesting  in  them  prop- 
erty to  be  used  for  governmental  pur- 
poses, or  authorizing  them  to  hold  or 
manage  such  property,  or  exempting 
them  from  taxation  upon  it,  constitutes  a 
contract  with  the  state  within  the  mean- 
ing of  the  federal  constitution.  The 
state,  therefore,  at  its  pleasure,  may 
modify  or  withdraw  all  such  powers,  may 
take  without  compensation  such  property, 
hold  it  itself,  or  vest  it  in  other  agencies, 
expand  or  contract  the  territorial  area, 
imite  the  whole  or  a  part  of  it  with  an- 
other municipality,  repeal  the  charter  and 


destroy  the  corporation.  All  this  may  be 
done,  conditionally  or  unconditionally, 
with  or  without  the  consent  of  the  citi- 
zens, or  even  against  their  protest.  In 
all  these  respects  the  state  is  supreme,  and 
its  legislative  body,  conforming  its  action 
to  the  state  constitution,  may  do  as  it 
will,  unrestrained  by  any  provision  of  the 
constitution  of  the  United  States.  Al- 
though the  inhabitants  and  property  own- 
ers may,  by  such  changes,  suffer  incon- 
venience, and  their  property  may  be  les- 
sened in  value  by  the  burden  of  increased 
taxation,  or  for  any  other  reason,  they 
have  no  right,  by  contract  or  otherwise, 
in  the  unaltered  or  continued  existence 
of  the  corporation  or  its  powers,  and 
there  is  nothing  in  the  federal  constitu- 
tion which  protects  them  froin  these  in- 
jurious consequences.  The  power  is  in 
the  state,  and  those  who  legislate  for  the 
state  are  alone  responsible  for  any  unjust 
or  oppressive  exercise  of  it."  Hunter  v. 
Pittsburgh,  207  U.  S.  161,  52  L.  Ed.  151, 
28   S.  Ct.  40. 

612-70.  The  taxing  body,  the  taxing  dis- 
trict, and  the  limits  of  taxation  are  de- 
terminable by  the  legislature  of  the  state. 
Kelly  V.  Pittsburgh,  104  U.  S.  78,  26  L. 
Ed.  658;  Forsyth  v.  Hammond,  166  U.  S. 
506,  41  L.  Ed.  1095,  17  S.  Ct.  665,  and 
cases  cited  in  the  opinion;  Williams  v. 
Eggleston,  170  U.  S.  304,  310,  42  L.  Ed. 
1047,  18  S.  Ct.  617;  1  Dill.  Mun.  Corp.  4th 
Ed.,  p.  52,  and  following.  True,  the  legis- 
lature may  sometimes,  by  restrictive  legis- 
lation in  respect  to  taxes,  seek  to  pre- 
vent the  payment  by  a  municipality  of  its 
contract  obligations,  and  in  such  a  case 
the  courts  will  enforce  the  protective 
clauses  of  the  federal  constitution  against 
any  state  legislation  impairing  the  obli- 
gation of  a  contract.  Braxton  County 
Court  V.  State  Tax  Comm'rs.  208  U.  S. 
192,  52  L.  Ed.  450,  28  S.  Ct.  275.  See 
ante,  "Taxation,"  IV,  C,  3,  c,   (6). 


904 


Vol.  VIII. 


MUNICIPAL,  ETC.,  AID. 


615 


XIII.     Ratification,   Estoppel   and  Laches. 

B.  Estoppel. — The  principles  of  right  and  justice,  upon  which  the  doc- 
trine of  estoppel  in  pais  rests,  are  applicable  to  municipal  corporations.  Any 
positive  acts  (infra  vires)  by  municipal  officers  which  may  have  induced  the 
action  of  the  adverse  party,  and  where  it  would  be  inequitable  to  permit  the 
corporation  to  stultify  itself  by  retracting  what  its  officers  had  done,  will  work 
an  estoppel. ^^^ 

MUNICIPAL,  COUNTY,  STATE  AND  FEDERAL  AID.— See  the  title 
MuNiciPAi.,  County,  State  and  Federal  Aid,  vol.  8,  p.  618,  and  references 
there  given.  In  addition,  see  ante.  Impairment  of  Obligation  of  Contracts, 
p.  624.  As  to  municipal  aid  bonds  in  hands  of  subsequent  holder,  see  post, 
Municipal,  County,  State  and  Federal  Securities. 


615-91a.  Beadles  v.  Smyser,  209  U.  S. 
393,  52  L.  Ed.  849,  28  S.  Ct.  522,  quoting 
from  Dillon  on  Municipal  Corporations, 
4th    Ed.,    Note    E,   §   417. 

Dormancy  of  judgment. — A  municipality 
can  not  assert  the  dormancy,  under  2 
Wilson's  Okla.  Stat.  1903,  §  4635,  of  cer- 
tain judgments  against  it  for  failure  to 
issue  execution  thereon  within  five  years, 
where,  during  most  of  that  period,  the 
municipality  was  carrying  out  its  con- 
tract arrangement  with  its  judgment 
creditors  to  pay  such  judgments  in  the 
order  of  their  rendition,  out  of  the  judg- 
ment fvmd,  the  effect  of  which  was  to 
prevent  the  judgment  creditors  from  tak- 
ing such  steps  as  the  law  permitted  to 
collect  their  judgments  by  execution  or 
mandamus.  Beadles  v.  Smyser,  209  U.  S. 
393,   52   L.   Ed.   849,  28   S.   Ct.   522. 

"We  fail  to  'see  any  valid  reason  why 
the  municipality  might  not  enter  into  this 
arrangement.  It  was  permitted  by  law 
to  make  an  annual  levy  of  5  mills  on  the 
dollar.  1  Wilson's  Rev.  &  Anno.  Stat. 
1903,  §  466.  If  the  judgment  creditors 
and  the  mtmicipality  saw  fit  to  make  an 
arrangement  by  which  the  amount  of 
this  annual  levy  might  be  disturljed  by 
the  consent  of  the  creditors  among  them 
in  accordance  with  the  priority  of  their 
judgments,  we  perceive  no  reason  why 
this  may  not  be  legally  done.  The  effect 
of  this  arrangement  was  to  prevent  the 
judgment  creditor  from  taking  such  steps 
as   the  law  permitted  to   collect  his  judg- 


ment, and,  upon  principles  of  common 
right  and  justice,  it  would  not  do  to  per- 
mit the  city  to  carry  out  such  an  arrange- 
ment during  nearly  all  the  five  years' 
period,  and  then  meet  its  obligation  by  a 
plea  of  the  statute  of  limitations  upon 
the  ground  that  the  judgments  had  be- 
come dormant,  while  both  parties  were 
recognizing  their  binding  obligation  and 
doing  all  that  the  law  permitted  to  effect 
their  satisfaction,  and  had  entered  into  a 
contract  which  prevented  the  judgment 
creditors  from  taking  steps  to  avail  them- 
selves of  their  right  to  collect  their  judg- 
ments by  execution  or  by  writ  of 
mandamus."  Beadles  v.  Smyser,  209  U. 
S.   393,   52   L.    Ed.   849,   28   S.    Ct.   522. 

"The  principles  of  natural  justice  and 
fair  dealing  are  alike  applicable  to  mu- 
nicipal corporations  as  to  individuals,  and 
to  permit  the  city  to  escape  the  payment 
of  judgments  whose  validity  is  not  other- 
wise questioned,  for  failure  to  issue  ex- 
ecution or  sue  out  a  writ  of  mandamus 
during  the  time  when  the  action  of  the 
city  officers  was  such  as  to  prevent  the 
exercise  of  the  right,  would  be  to  per- 
mit the  action  of  the  representatives  of 
the  city,  who  have  had  the  benefit  of  the 
contract  during  the  time  both  parties 
were  observing  its  obligations,  to  work  a 
gross  injustice  upon  the  creditors  hold- 
ing valid  judgments  against  the  nm- 
nicipality."  Beadles  v.  Smyser,  209  U.  S. 
393,   52   L.   Ed.   849,   28   S.   Ct.   522. 


905 


669  MUNICIPAL,  ETC.,  SECURITIES.  Vol.  VIII. 


MUNICIPAL,  COUNTY,  STATE  AND  FEDERAL  SECURITIES. 

IV.  Municipal,  State  and  Territorial  Bonds,  S)06. 

F.  Conditions  Precedent  to  Issuance,  906. 

N.  Payment,  Redemption  and  Discharge,  907. 

7.  Funding  and  Refunding,  907. 
p.  Negotiation  and  Transfer,  907. 

2.  Bona  Fide  Holders,  907. 

a.  Who  Are  Bona  Fide  Holders,  907. 

(3)  Notice,  907. 

(c)   Constructive    or    Implied    Notice.   907. 
aa.  Authority  to   Issue,  907. 

(bb)   Limitation  of  Indebtedness,  907. 
bb.  Pending  Suit,  907. 
cc.  Matters  of  Record,  907. 
dd.  Matters  Apparent  on  Face  of  Bonds,  907. 
(bb)   Recitals,  907. 
(5)   Presumption    That    Holders   Are    Bona    Fide    Purchas- 
ers, 907. 

b.  Rights  of  Bona  Fide  Holders,  908. 

(24)   Bonds    Issued   without   Authority,  908. 

(a)    In  General,  908. 
(26)   Presumptions  and   Burden  of   Proof,  908. 
(a)     Authority  to   Issue. 

bb.  Performance     of     Conditions     Precedent     and 
Requisites  to   Validity,  908. 
(bb)    Performance  of   Conditions   Imposed  by 
A'ote  of  Electors,  908. 

V.  Operation  and  Effect  of  Recitals,  908. 

5.  Recitals  as  to  Compliance  with  Conditions  Precedent,  908. 
b;  Compliance  with   Statute  under  Which  Issued,  908. 
(1)   Doctrine  Generally,  908. 

CROSS   REFERENCES. 

See  the  title  Municipal,  County,  State;  and  Fe^otiral  Securities,  vol.  8, 
p.  650,  and  references  there  given. 

As  to  mandamus  to  enforce  judgment  on  municipal,  county,  state  and  federal 
bonds,  see  ante.  Mandamus,  p.  838. 

IV.    Municipal,  State  and  Territorial  Bonds. 

F.  Conditions  Precedent  to  Issuance. — The  provisions  of  a  vote  au- 
thorizing an  issue  of  county  bonds  may  explicitly  impose  conditions  precedent 
to  the  lawful  issue  of  the  bonds.'^-''  But  it  is  not  conclusive  that  the  obligation 
imposed  is  called  a  condition.     It   frequently  has  been  the  case  that  the  word 

669-72a.     Green    County  z'.   Quinlan,   :m  a    prior    subscription    to    another    railway 

U.   S.  582,   53   L.   Ed.  335,  29   S.   Ct.   102.  company,  is   a  condition   precedent  to  the 

Exoneration  from  prior  subscriotion  to  lawful  issue  of  the  bonds.     Judgment   (C. 

railroad. — A  condition  imposed  l)y  a  vote  C.  A.  1907).  Quinhm  v.  Green  Countv,  157 

authorizing    a   county    bond    issue   in    aid  F.   33,   modified.      Green   County  v.    Quin- 

of    railroads,     they    shall     not    be    issued  Ian,  211  U.  S.  582,  53  L.  Ed.  335,  29  S.  Ct. 

until  the  county  shall  be  exonerated  from  162. 

906 


Vol.  MIT. 


MUXICIPAL,  ETC.,  SECURITIES. 


669-695 


"condition"  has  been  used  in  written  instrnments  in  a  looser  and  broader  sense 
than  the  law  attaches  to  it."-'' 

N.  Payment,  Redemption  and  Discharge — 7.  Funding  and  Refund- 
ing.—Bonds  Included  within  Act,  1896 — Loan  Commissioner  of  Arizona. 
— See  notes  78-81. 

Stare  Decisis. — Decisions  affirming  the  validity  of  legislation  nnder  which 
territorial  bonds  are  issued  in  exchange  for  county  bonds,  and  which  provides 
for  the  payment  of  the  principal  and  interest  thereof  by  the  county,  even  if 
not  binding  on  such  county,  which  was  not  nominally  a  party,  should  be  upheld 
as  against  it  on  the  doctrine  of  stare  decisis  after  such  bonds  have  gone  into 
the  channels  of  trade. '^-^ 

Q.  Negotiation  and  Transfer — 2.  Bona  Fide  Holders — a.  Ulio  Are 
Bona  Fide  Holders^{3)  Xofice — (c)  Constntctizr  or  Implied  Xotice — aa. 
Authority  to  Issue — (bb)    Limitation   of  Indebtedness. — See  note   15. 

bb.    Pending  Suit. — See  note  17. 

cc.  Matters  of  Record. — Order  of  Court  and  Numbering  of  Bonds. — 
See  ante,  "Limitation  of  Indebtedness,"  IV,  Q,  2,  a,  (3),  (c),  aa,  (bb). 

dd.  Matters  Apparent  on  Face  of  Bonds — (bb)  Recitals. — See  ante,  "Limita- 
tion of  Indebtedness,"  IV,  Q,  2,  a,  (3),  (c),  aa,  (bb). 

(5)  Presumption  That  Holders  Are  Bona  Fide  Purchasers. — The  holder  of 
negotiable  county  bonds  is  presumed  to  have  obtained  them  underdue  or  before 


669-72b.  Green  County  v.  QninHn,  211 
U.  S.  582,  53  L.  Ed.  335,  29  S.  Ct.  162, 
modifying  Quinlan  v.  Green  County.  157 
Fed.  33. 

Provisions  in  a  vote  authorizing  a 
county  bond  issue  in  payment  of  a  sub- 
scription for  railroad  stock,  on  condition 
that  the  railroad  construct  through  the 
county  and  within  a  mile  of  a  named 
town  and  expend  the  amount  subscribed 
within  the  county!  did  not  impose  a  con- 
dition on  the  lawful  issue  of  the  bonds  or 
on  the  obligation  of  county  thereon, 
where  the  vote  makes  exoneration  from 
a  prior  subscription  to  stock  of  another 
railroad  company  a  condition  precedent 
to  the  issue  of  the  bonds.  Green  County 
V.  Quinlan,  211  U.  S.  582,  53  L.  Ed.  335, 
29   S.   Ct.   162. 

''A  consideration  of  the  vote  of  the 
■county  leaves  no  doubt  that  that  part  of 
it  which  prescribed  the  nature  of  the 
railioad  construction  was  not  a  condition. 
It  would  have  been  easy  to  have  post- 
poned the  obligation  to  pay  the  bonds 
rmtil  the  construction  had  been  com- 
pleted, as  desired  bj'  the  county.  Such  a 
provision  as  that  in  Provident  Life,  etc., 
•Co.  V.  Mercer  County,  170  U.  S.  593,  594, 
42  L.  Ed.  1156,  18  S.  Ct.  788,  would  have 
been  enough."  Green  County  t.  Quin- 
lan, 211  U.  S.  582,  53  L.  Ed.  335,  29  S.  Ct. 
162. 

686-78.  Vail  v.  Arizona,  207  U.  S.  201, 
52   L.    Ed.   169,  28   S.   Ct.   107. 

686-81.  "In  Murphy  v.  Utter,  180  U.  S. 
95,  46  L.  Ed.  1070,  22  S.  Ct.  776.  *  *  * 
it  was  held  that  neither  a  change  in  the 
personnel  of  the  loan  commission  nor  an 
act  of  the  legislature  of  .\rizona,  abolish- 
ing   the    commission,    put    an    end    to    the 


duty  of  refunding."  Vail  v.  Arizona,  207 
VJ.  S    ?0l,  5'^  L.  Ed.  169,  28  S.  C*^    in-^. 

686-82a.  Vail  v.  .Arizona,  207  U.  S.  201, 
52  L.  Ed.  169.  28  S.  Ct.  107.  See  post, 
STARE  DECISIS. 

694-15.  Limitation  of  indebtedness. — A 
purchaser  of  county  bonds,  even  if  bound 
to  examine  the  order  of  the  county  com- 
missioners' court  referred  to  therein  as 
authorizing  the  issue,  is  not  charged  with 
the  knowledge  that  such  court  exceeded 
its  power  in  issuing  the  bonds  purchased 
by  him  because  the  numbers  which  such 
bonds  bear  show  that  the  amount  au- 
thorized by  the  court's  order  had  al- 
ready been  issued,  where  the  statutes  re- 
cited in  the  bonds  do  not  name  any 
specific  amount  beyond  which  the  court 
can  not  go,  but  m.erely  forbid  an  issue 
oi  a  larger  number  than  a  specified  annual 
tax  will  liquidate  in  ten  years,  and  there 
is  nothing  in  the  court's  order  which 
requires  the  bonds  to  lie  numbered  con- 
secutively from  one  upward.  Presidio 
County  V.  Noel-Young  Bond,  etc.,  Co., 
212  U.  S.  58,  53  L.  Ed.  402,  29  S.  Ct.  237. 

695-17.  Pending  suit  on  coupons. — 
One  who  purchases  negotiable  county 
bonds  in  good  faith  and  for  value  after  a 
suit  on  the  interest  coupons  attached  to 
such  bonds  has  been  brought,  not  being 
himself  a  party  or  having  notice  of  that 
suit,  will  not  be  concluded  by  the  judg- 
ment invalidating  the  coupons,  although 
the  issue  in  that  suit  as  to  the  validity  of 
the  coupons  may  have  incidentally  in- 
volved an  inquiry  as  to  the  validity  of 
the  bonds  to  which  they  were  attached. 
Presidio  County  v.  Noel-Young  Bond, 
etc.,  Co.,  212  U.  S.  58.  53  L.  Ed.  402,  29 
S.  Ct.  237. 


907 


700-714 


MUNICIPAL,  ETC.,  SECURITIES. 


^'ol.  viiL 


maturity,  in  good  faith,  for  a  valuable  consideration,  and  without  notice  of  any 
circumstances    impeaching   their   validity. ^^^ 

b.  Rights  of  Bona  Fide  Holders — (24)  Bonds  Issued  zinthont  Authority — 
(a)    In  General. — See  note  76. 

(26)  Presumptions  and  Burden  of  Proof — (a)  Authority  to  Issue — bb.  Per- 
formance of  Conditions  Precedent  and  Requisites  to  Validity — (bb)  Perform- 
ance of  Conditions  Imposed  by  Vote  of  Electors. — See  note  91. 

V.    Operation  and  Effect  of  Recitals. 

5.  Recitals  as  to  Coaipuaxce;  with  Coxditioxs  Precedext — b.  Com- 
pliance zvith  Statute  under  Which  Issued — (1)  Doctrine  Generally.' — When  a 
county,  acting  by  the  commissioner's  court  or  the  proper  officers,  issued 
bonds  attested  by  the  seal  of  the  court  and  the  signatures  of  its  officers, 
and  reciting  that  they  were  issued  under  the  order  of  the  court,  in  virtue 
of  the  statute  named,  and  were  registered^such  recitals  fairly  importing 
a  compliance,  in  all  substantial  respects,  with  the  statute  giving  authority 
to  issue  bonds — a  bona  fide  purchaser  was  entitled  to  accept  the  recitals  as 
stating  the  truth,  and  the  county  can  not,  as  against  such  purchaser,  allege  the 
contrary.  It  will  not  be  heard  to  say  that  the  bonds  were  in  excess  of  the 
amount  authorized,  or  that  they  were  not  issued  for  the  purposes  contemplated 
by  the  statutes   referred  to.     These  principles  have  become   firmly  established, 


700-31a.  Presidio  County  v.  Noel- 
Young  Bond,  etc.,  Co.,  212  U.  S.  58,  53  L. 
Ed.  402,  29  S.  Ct.  237. 

709-76.  "In  1883  an  act  was  passed  by 
the  territorial  legislature  (Ariz.  Laws 
1883,  p.  61),  directing  Pima  county  to  ex- 
change its  bonds  for  those  of  the  Arizona 
Narrow  Gauge  Railroad  Company.  The 
amount  of  the  bonds  and  the  conditions 
of  exchange  were  specified  in  the  act. 
One  hundred  and  fifty  thousand  dollars  of 
bonds  were  so  exchanged.  Pima  county 
denied  its  liabilitj^  on  the  bonds,  refused 
to  pay  the  interest  coupons,  and  an  ac- 
tion was  brought  thereon,  which  finally 
reached  this  court.  Lewis  v.  Pima 
County,  155  U.  vS.  54,  39  L.  Ed.  67,  Iq  S. 
Ct.  22.  The  act  was  held  to  be  in  viola- 
tion of  the  restrictions  imposed  upon  ter- 
ritorial legislatures  by  U.  S.  Rev.  Stat., 
§  1889,  as  amended  by  the  act  of  congress 
of  June  8,  1878.  chap.  168  (20  Stat,  at  L. 
101),  and  the  bonds  were  adjudged  void." 
Vail  V.  Arizona,  207  U.  S.  201,  "52  L.  Ed. 
169.  28  S.  Ct.  107. 

714-91.  A  presumption,  though  not  a 
conclusive  one.  that  there  has  been  a 
compliance  with  the  condition  precedent 
to  the  issuance  of  county  bonds  in  pay- 
ment of  a  subscription  to  the  capital 
stock  of  a  railway  companj^,  that  the 
county  should  first  be  exonerated  from  a 
prior  subscription  to  the  stock  of  another 
railroad  company,  arises  from  the  mere 
fact  of  subscription  and  issuance  by  the 
officer  charged  with  the  duty  of  issuing 
the  bonds  upon  the  performance  of  the 
condition  precedent.  Green  County  v. 
Quinlan,  211  U.  S.  582,  53  L.  Ed.  335,  29 
S.   Ct.  162. 


"As  these  bonds  contained  no  recital 
importing  that  the  conditions  had  been 
performed,  it  was  open  to  the  county  to 
show,  even  against  a  purchaser  for  value, 
before  maturity,  without  notice,  that  the 
conditions  had  not  been  performed.  But 
the  issue  of  bonds  in  payment  of  a  sub- 
scription to  railroad  stock  by  an  officer 
charged  with  the  duty  of  ascertaining 
whether  the  conditions  indispensable  to 
the  lawful  issue  had  been  fulfilled  raises  a 
presumption  of  their  fulfillment  prior  to 
the  issue.  A  lawful  holder  of  the  bonds 
is  entitled  to  rely  upon  this  presumption, 
although  he  incurs  the  danger  that  the 
presumption  will  be  overcome  by  evi- 
dence. If  he  wishes  absolute  securitj'  in 
this  respect,  he  must  insist  upon  a  recital. 
This  much  was  determined  by  the  de- 
cision of  tliis  court  when  the  case  was 
here  before.  Quinlan  v.  Green  County, 
205  U.  S.  410,  51  L.  Ed.  860,  27  S.  Ct.  505." 
Green  County  v.  Quinlan,  211  U.  S.  582, 
53    L.    Ed.   335,   29    S.    Ct.   162. 

The  case  of  Quinlan  v.  Green  County, 
205  U.  S.  410,  51  L.  Ed.  860,  27  S.  Ct.  505, 
did  not  decide  that  there  was  a  presump- 
tion of  performance  arising  out  of  the 
length  of  time  during  which  no  claim  was 
made  in  respect  of  the  Elizabethtown  & 
Tennessee  Railroad  subscription,  but  that 
there  was  a  presumption  of  performance 
before  tlie  issue  of  the  bonds.  When  we 
come  to  look  at  the  facts  fotind  by  the 
circuit  court  there  is  nothing  to  rebut 
this  presumption."  Green  County  v.  Quin- 
lan, 211  U.  vS.  582,  53  L.  Ed.  335,  29  S. 
Ct.  162. 


908 


Vol.  A'lII. 


MUXICIPAL,  ETC.,  SECURITIES. 


751 


as  will  be  seen  by  an  examination  of  the  adjudged  cases. ^-^^ 


751-94a.  Presidio  County  :•.  Xoel-Young 
Bond,  etc.,  Co.,  212  U.  S.  58,  53  L.  Ed. 
402,   29    S.    Ct.   237. 

Recitals  in  county  bonds  of  compliance 
with  statutes  authorizing  their  issuance 
for  courthouse  and  jail  purposes  bj'  the 
commissioners'  court  relieve  a  purchaser 
from  the  necessity  of  examining  the  or- 
der of  such  court  referred  to  in  the  bonds 
as  authorizing  the  issue,  and  estop  the 
county  to  assert,  as  against  a  bona  fide 
holder,  that  his  bonds  were  issued  in  ex- 
cess of  the  authorized  amount,  or  were 
not  issued  for  the  purposes  contemplated 
by  the  statutes.  Presidio  County  v.  Xoel- 
Young  Bond,  etc.,  Co..  212  U.  S.  58,  53 
L.    Ed.   402.   29   S.    Ct.    237. 

Evansville  z'.  Dennett,  161  U.  S.  434,  40 
L.  Ed.  760,  16  S.  Ct.  613,  was  an  action 
involving  the  validity  of  two  series  of 
bonds,  issued  by  the  city  of  Evansville, 
Indiana,  for  subscription  to  certain  rail- 
roads. '"Each  bond  of  the  tv.'o  series  con- 
tained recitals  to  the  effect  that  the 
bonds  were  issued  in  pursuance  of  cer- 
tain legislative  enactments,  and  by  virtue 
of  certain  resolutions  and  ordinances 
passed  by  the  city  council.  If  the  bonds 
had  not  contained  any  recitals  importing 
a  performance  of  such  conditions  before 
the  power  to  subscribe  was  exercised, 
then  it  would  have  been  open  to  the  city 
to  shov,',  even  as  against  a  bona  fide  pur- 
chaser, that  the  bonds  were  issued  in  dis- 
regard of  the  statute,  and,  therefore,  did 
not  impose  any  legal  obligation  upon  it. 
Buchanan  v.  Litchfield,  102  U.  S.  278,  26 
L.  Ed.  138;  School  Dist.  v.  Stone,  106  U. 
S.  183.  187.  27  L.  Ed.  90,  91,  1  S.  Ct.  84." 
Presidio  County  v.  Xoel-Young  Bond, 
•etc.,  Co.,  212  U.  S.  58,  53  L.  Ed.  402,  29  S. 
Ct.  237. 

In  Evansville  v.  Dennett,  161  U.  S.  434. 
40  L.  Ed.  760,  16  S.  Ct.  613,  "the  court  ex- 
pressed its  approval  of  the  decision  in 
Van  Hostrup  v.  Madison,  1  Wall.  291, 
297,  17  L.  Ed.  538,  a  suit  on  municipal 
bonds,  in  which  Mr.  Justice  X^elson, 
speaking  for  the  court,  said:  'Another 
objection  taken  is,  that  the  proviso  re- 
quiring a  petition  •  of  two-thirds  of  the 
citizens,  who  were  freeholders  of  the  city, 
was  not  complied  with.  As  we  have  seen, 
the  bonds  signed  bj'  the  mayor  and  clerk 
of  the  city  recite  on  the  face  of  them 
that  they  v/ere  issued  by  virtue  of  an  or- 
dinance of  the  common  council  of  the 
city,  passed  September  2,  1852.  This  con- 
cludes the  city  as  to  any  irregularities  that 
may  have  existed  in  carrying  into  execu- 
tion the  power  granted  to  subscribe  the 
stock  and  issue  the  bonds,  as  has  been 
repeatedly  held  by  this  court.'  *'  Presidio 
County  V.  Xoel-Young  Bond,  etc.,  Co., 
212  U.  S.  58,  53  L.  Ed.  402,  29  S.  Ct.  237. 

"But    the    bonds    issued    on    account    of 


subscription  to  the  stock  of  the  Evans- 
ville. Henderson  &  X'ashville  Railroad 
Company  recite  the  subscription  was 
'made  in  pursuance  of  an  act  of  the  legis- 
lature and  ordinances  of  the  city  council 
passed  in  pursuance  thereof.'  This  im- 
ports not  only  compliance  with  the  act 
of  the  legislature,  but  that  the  ordinances 
of  the  city  council  were  in  conformity 
with  the  statute.  It  is  as  if  the  city  had 
declared,  in  terms,  that  all  had  been  done 
that  was  required  to  be  done  in  order 
that  the  power  given  might  be  exercised. 
*  *  *  As  therefore  the  recitals  in  the 
bonds  import  coinpliance  with  the  city's 
charter,  purchasers  for  value  having  no 
notice  of  the  nonperformance  of  the  con- 
ditions precedent  were  not  bound  to  go 
behind  the  statute  conferring  the  power 
to  subscribe,  and  to  ascertain,  by  an  ex- 
amination of  the  ordinances  and  records 
of  the  city  council,  whether  those  con- 
ditions had,  in  fact,  been  performed. 
With  stich  recitals  before  them  they  had 
the  right  tc  assum.e  that  the  circum- 
stances existed  which  authorized  the  city 
to  exercise  the  authority  given  by  the 
legislature.  *  *  *  The  city  having  au- 
thority, under  some  circumstances,  to  put 
these  bonds  upon  the  market,  and  having 
issued  them  under  the  corporate  seal  of 
the  city,  and  under  the  attestation  of  its 
highest  officer,  certifying  that  they  were 
issued  in  payment  of  a  subscrii)tion  of 
stock  m.ade  in  pursuance  of  the  city's 
charter,  the  principles  of  justice  demand 
that  the  bonds,  in  the  hands  of  bona  fide 
holders  for  v^ue,  should  be  met  accord- 
ing to  their  terms,  unless  some  clear, 
well-settled  rule  of  law  stands  in  the  way. 
Xo  such  obstacle  exists."  Presidio 
County  V.  X'oel-Young  Bond,  etc..  Co., 
212  U.  S.  58,  53  L.  Ed.  402,  29  S.  Ct.  237. 

"In  Waite  v.  Santa  Cruz.  184  U.  S.  302, 
320,  46  L.  Ed.  552,  22  S.  Ct.  327,  which 
was  also  a  suit  on  muncioal  bonds  and 
involved  the  effect  of  recitals  importing 
compliance  with  law,  the  court  referred 
to  and  followed  Evansville  v.  Dennett, 
161  U.  S.  434,  40  L.  Ed.  760,  16  S.  Ct.  613. 
It  said:  'The  city  of  Santa  Cruz  had 
power,  under  the  constitution  and  laws 
of  California,  to  refund  its  outstanding 
indebtedness,  evidenced  by  bonds  and 
warrants.  The  nature  and  extent  of  such 
indebtedne.'JS  were  matters  peculiarh' 
within  the  knowledge  of  its  constituted 
authorities.  When,  therefore,  the  refund- 
ing bonds  in  suit  were  issued  with  the 
recitals  therein  contained,  the  city  thereby 
represented  that  it  issued  them  under  and 
in  pursuance  of  and  in  conformity  with 
the  Act  of  1893  and  the  constitution  of 
the  state.  As  nothing  on  the  face  of  the 
bonds  suggested  that  such  representa- 
tions were  false,  purchasers  had  the  right 


909 


791 


MUTUAL   IXSURAXCE. 


Vol.  VIII. 


MUNICIPAL    COURTS.— See   ante,    Municipal   Corporations,    p.   895. 
MUNICIPAL   OFFICERS.— See  ante,   Municipai,  Corporations,  p.   895. 
MUNICIPAL  ORDINANCES.— See  post,  Ordinances. 
MUNICIPAL  TAXATION.— See  post,  Taxation. 
MURDER.— See   ante.    Homicide,  p.  619. 


MUTUAL  INSURANCE. 
II.  Change  of  Constitution  and  By-Laws,  910. 

III.  The  Contract  of  Insurance,  910. 

B.  Premiums   and   Assessments,   910. 
5.  Manner   of    Payment,  910. 

b.  Change   from  Assessment  to   Legal   Reserve   Plan.  910. 

CROSS   REFERENCES. 

See  the  title  Mutual  Insurance,  vol.  8,  p.  789,  and  references  there  given. 

II.     Change  of  Constitution  and  By-Laws. 

See  post,  "Change  from  Assessment  to  Legal  Reserve  Plan,"  III,  B,  5,  b. 

III.    The  Contract  of  Insurance. 

B.  Premiums  and  Assessments — 5.  Manner  of  Payment — b.  Change 
from  Assessment  to  Legal  Reserzr  Plan- — Vested  rights,  privileges,  or  prop- 
erty rights  of  the  members  of  an  association  insuring  lives  upon  the  co-opera- 
tive plan  are  not  taken  without  due  process  of  law  by  the  reorganization  <yi 
such  association  as  a  mutual  level  premium  company,  pursuant  to  state  law 
under  a  new  name  and  without  the  consent  of  the  members  ;^"^  nor  are  con- 
tract obligations  between  the  association  and  its  members  unconstitutionally 
unpaired. ^'^'' 


to  assume  that  they  were  true,  especially 
in  view  of  the  broad  recital  that  every- 
thing required  by  law  to  be  done  and 
performed  before  executing  the  bonds 
had  been  done  and  performed  by  the  city. 
As  there  was  power  in  the  city  to  issue 
refunding  bonds  to  be  used  in  discharging 
its  outstanding  indebtedness  of  a  specified 
kind,  purchasers  were  entitled  to  rely 
upon  the  truth  of  the  recitals  in  the 
bonds  that  they  were  of  the  class  which 
the  Act  of  1893  authorized  to  be  re- 
funded. They  were  under  no  duty  to  go 
further  and  exainine  the  ordinances  of 
the  city  to  ascertain  whether  the  recitals 
were  false.  On  the  contrary,  purchasers 
could  assume  that  the  ordinances  would 
disclose  nothing  in  conflict  with  the  re- 
citals in  the  bonds.'"  Presidio  County  t'. 
Noel-Young  Bond,  etc.,  Co.,  212  U.  S. 
58,    53    L.    Ed.    402,    29    S.    Ct.    237. 

"In  tlie  more  recent  case  of  Stanley 
County  V.  Coler,  190  U.  S.  437,  47  L.  Ed. 
1126,  23  S.  Ct.  811,  the  court  reviewed 
many  of  the  adjudged  cases,  and,  in  sup- 
port of  the  conclusion  there  reached, 
cited,  among  other  cases,  that  of  Evans- 
villc  z\  Dennett,  161  U.  S.  434,  40  L.  Ed. 
760,  16  S.  Ct.  613.  See,  also,  the  recent 
case  of  Quinlan  v.  Green  County,  205  U. 
S.    410,    51    L.    Ed.    860,    27     S.      Ct.      505." 


Presidio  County  t'.  Noel-Young  Bond, 
etc.,  Co.,  212  U.  S.  58,  53  L.  Ed.  402,  29 
S.  Ct.  237. 

791-17a.  Polk  v.  :*Iutual,  etc..  Life 
Assn,  207  U.  S.  310.  52  L.  Ed.  222,  28  S. 
Ct.  65,  so  holding  as  to  reorganization  un- 
der N.  Y.  Laws  1901,  chap.  722. 

The  power  to  amend  or  repeal,  reserved 
by  the  state  constitution  in  force  when 
an  association  insuring  lives  upon  the  co- 
operative plan  was  incorporated  under 
general  law,  will  sustain,  as  against  an 
objection  founded  on  the  contract  clause 
of  the  federal  constitution,  so  inuch  of 
N.  Y.  Laws  1901,  chap.  722.  as  authorized 
the  reorganization  of  such  association 
under  a  new  name  as  a  mutual  level 
premium  company  without  the  consent  of 
the  members,  although  the  association 
inay  have  been  insolvent  and  the  scheme 
of  reincorporation  may  have  been  de- 
vised, and  legislation  authorizing  it  pro- 
cured, by  its  officers  with  the  intent  to 
defraud  the  members.  Polk  z'.  Mutual, 
etc.,  Life  Ass'n,  207  U.  S.  310,  52  L.  Ed. 
222,  28  S.  Ct.  65. 

7Sl-17b.  Contract  obligations  between 
an  association  insuring  lives  upon  the  co- 
operative plan  and  its  members  are  not 
unconstitutionally  impaired  by  the  re- 
organization of  such  association  as  a  mu- 


910 


A'ol.  Mil.  NATURALIZAriOX.  796 

MUTUALITY.— See  ante.  Contracts,  p.  Z7i\  Estoppel,  p.  hSo;  post,  Ri;S 
Adjudicata;  Set-Off,  Recoupment  and  Counterclaiim  ;  Specific  Per- 
formance. 

NAMES. — See  the  title  Names,  vol.  8,  p.  795,  and  references  there  given. 
In  addition,  see  post.  Postal  Laws;  Trademarks,  Tradenames  and  Unfair 
Competition. 

NATION.— See  note  1. 

NATIONAL  BANKS.— See  ante.  Banks  and  Banking,  p.  184. 

NATIVE-BORN   CITIZEN.— See   ante.   Citizenship,  p.   235. 

NATURAL  GAS.  — See  ante.  Gas,  p.  607. 


NATURALIZATION. 
IV.  How  Naturalization  Accomplished,   911. 

C.  Judicial   Proceedings,  911. 
1.  In  General,  911. 
5.  Certificate  of  Naturalization,  912. 

b.  Nature,  912. 

c.  Conclusiveness,   912. 

(1)  In  General,  912. 

(2)  Impeachment   and   Cancellation   of   Certificate.   912. 

IX.  Offenses  against  the  Naturalization  Laws,  912. 

CROSS   REFERENCES. 

See  the  title  Naturalization,  vol.  8,  p.  797,  and  references  there  given. 

IV.    How  Naturalization  Accomplished. 

C.    Judicial  Proceedings — 1.  In  Genhral. — Jurisdiction  of  State  Courts. 

— Congress,  in  the  exercise  of  its  power  under  Const.  U.  S.,  art.  1,  §  8,  cl.  4,  to 
establish   a   uniform    rule   of   naturalization,    may   confer   jurisdiction   upon   the 

tiiai  level  premium  company,  pursuant  to  tract  of  country  west  of  the  Alississippi 
N.  Y.  Laws  1901,  chap.  722,  under  a  new  River,  in  tee  simple  to  them  and  their  de- 
name  and  without  the  consent  of  the  scendants,  to  inure  to  them  while  they 
members,  because  such  statute  provides  shall  exist  as  a  Nation  and  liv* on  it;"  with 
that  outstanding  assessment  contracts  the  boundaries.  The  word  Nation  is  used 
shall  be  appraised  as  liabilities  as  if  they  in  the  treaty  as  a  collective  noun,  and  as 
were  one-year  term  insurance  at  the  ages  such,  according  to  a  common  usage,  is  ac- 
attained.  Polk  v.  Mutual,  etc.,  Life  companied  Ijy  a  plural  verb  in  the  very 
Ass'n,  207^  U.  S.  310,  52  L.  Ed.  222^  28  S.  next  article.  ("The  Choctaw  Nation  of 
Ct.  G.5.  See  ante,  IMPAIRMENT  OF  Indians  consent  and  here1>y  cede.")  There- 
OBLIGATION  OF  CONTRACTS,  p.  fore  the  second  article  says  "to  them" 
624.  rather  than  "to  it,"  just  as  it  says  "while 

In  Wright  v.  Minnesota  ]\Iut.  Life  Ins.  the}'  (i.  e.,  the  Nation)  shall  exist  as  a  Na- 

Co.,   193   U.    S.   657,   -18    L.    Ed.   832._  24    S.  tion,"  and  it    adds  to    the    untechnical    "in 

Ct.   549,   "it   was  held   that   a  law   of  Min-  fee    simple"   untechnical   words   of   limita- 

nesota,    authorizing   an   assessment   insur-  tion  of  a  kind  that  would  indicate  the  in- 

ance   company  to   change   its   business   to  tent   to  confine    the    grant  to   the    Nation, 

that  of  insurance  upon  a  regular  premium  which  "successors"  would  not,  and  at  tht> 

basis,    was    not    in    violation    of    this    pro-  same  time  to  imply  nothing  as  to  the  rules 

vision  of  the   constitution."      Polk  v.   Mu-  for  inheritance  of  tribal  rights,  as  "heirs" 

tual,  etc.   Life  Assn.  207  U.   S.  310.  .")2  L.  might  have  seemed  to  do.     It  was  held  to 

Edf.  222,  28  S.  Ct.  65.  be  a  grant  to  the  Nation  only,  limited  in 

796-1.      Grant   to    Choctaw   Nation. — By  point   of   time   to  the   corporate  existence 

article  2  of  the  treaty  of   1830  it  was  pro-  of  the  Nation,  and  did  not  create  a  trust 

vided    that    "The    United    States    under    a  in  favor  of  the  then  existing  members  of 

grant   specially   to   be   made   !)y  the   presi-  the  tribe  and  their  descendants.     Fleming 

dent  of  the  United   States   shall  cause  to  :•.   McCurtain,  215  U.  S.  56,  58,  54  L.  Ed. 

be    conveyed    to    the     Choctaw    Nation    a  88,  30  S.  Ct.  16.     See  post,  TREATIES. 

911 


799-800  NATURALIZATION.  Vol.  VIII. 

courts  of  a  state  of  naturalization  proceedings  involving  admission  to  citizen- 
ship in  the  United  States. ^^a 

Nature  and  Mode  of  Procedure. — While  a  proceeding  for  the  naturaliza- 
tion of  an  alien  is,  in  a  certain  sense,  a  judicial  proceeding,  being  conducted  in 
a  court  of  record  and  made  a  matter  of  record  therein,  yet  it  is  not  in  any  sense 
an  adversary  proceeding.  It  is  the  alien  who  applies  to  be  admitted  who  makes 
the  necessary  declaration  and  adduces  the  requisite  proofs,  and  who  renounces 
and  abjures  his  foreign  allegiance,  all  as  conditions  precedent  to  his  admission 
to  citizenship  of  the  United  States.  He  seeks  political  rights  to  which  he  is  not 
entitled  except  on  compliance  with  the  requirements  of  the  act.  But  he  is  not 
required  to  make  the  government  a  party  nor  to  give  any  notice  to  its  repre- 
sentatives.^^*^ 

5.  Certificate:  of  Naturalization — b.  Nature. — See  post,  "Impeachment 
and  Cancellation  of  Certificate,"  IV,  C,  5,  c,   (2). 

c.  Conclitsk'cncss — (1)  In  General. — A  certificate  of  naturalization  is  con- 
clusive on  collateral  attack. --'^ 

(2)  Impeachment  and  Cancellation  of  Certificate. — A  certificate  of  naturali- 
zation procured  from  a  competent  court  ex  parte  in  the  ordinary  way  has  no 
such  conclusive  effect  against  the  public  as  prevents  its  cancellation  in  an  inde- 
pendent proceeding  authorized  by  congress,  on  the  ground  that  it  was  fraudu- 
lently and  illegally  procured  by  perjured  testimony.--''  The  decision  that  the 
judgment  of  a  court  of  a  record  in  naturalization  proceedings  was,  like  every 
other  judgment,  complete  evidence  of  its  own  validity,  goes  no  further  than 
to  establish  the  immunity  of  such  a  judgment  from  collateral  attack;  and  it 
does  not  follow  that  congress  may  not  authorize  a  direct  attack  upon  certifi- 
cates of   citizenship  in   an  independent  proceeding.^^c 

Certificates  Issued  Prior  to  Act  Authorizing  Impeachment. — Naturali- 
zation certificates,  whether  issued  prior  or  subsequent  to  the  enactment  of  the 
Act  of  June  29,  1906,  are,  by  the  express  provisions  of  §  15  of  that  act,  made 
liable  to  impeachment,  where  fraudulently  and  illegally  procured. 22^ 

799-13a.    Jurisdiction   of   state   courts.—  closely    analogous    to    a    public    grant    of 

Holmgren  v.  United  States,  217  U.  S.  509,  land  (Rev.  Stat.,  §  2289,  etc.,  U.  S.  Comp. 

54  L.  Ed.  861,  30  S.  Ct.  588,  affirming  156  Stat.    1901,    p.    1388),    or    of   the    exclusive 

Fed.  439,  84  C.  C.   A.  301.  right  to  make,  use,   and  vend  a  new  and 

799-13b.  Nature  and  mode  of  procedure.  useful  invention    (Rev.   Stat.,   §  4883,   etc., 

— Johannessen    v.    United    States,'   225    U.  U.  S.  Comp.  Stat.,  p.  3381)."     Johannessen 

S.  227,   56  L.   Ed.  10G6,  32   S.   Ct.  613.  v.  United   Stales,  225  U.   S.  227,  56   L.   Ed. 

800-22a.       Conclusiveness. — Johannessen  1066,  32  S.  Ct.  613. 
z>.  United  States,  225  U.   S.  227,  56  L.   Ed.  "An    alien    has    no    moral    nor    constitu- 

1066,    32    S.    Ct.    613,    explaining    Spratt   v.  tional    right    to    retain    tlie    privileges    of 

Spratt,   4  Pet.   393,   408,  7   L.   Ed.   897,   and  citizenship  if,  by  false  evidence  or  the  likt, 

referring     to      Campbell     v.      Gordon,       6  an    miposition    has    been    practiced    upon 

Craiich  176,  3  L-  Ed.  190.  the    court,    without    which    the    certificate 

800-22b.    Impeachment  and  cancellation,  of    citizenship    could    not    and    would    not 

— Johannessen  :■.  United  States,  225  U.  S-  have  been  issued."     Johannessen  v.  United 

227,  56  L.  Ed.  1066,  32  S.  Ct.  613.    So  held  States,    225    U.    S.   227,    56    L.    Ed.    1066,   32 

in   respect   to   the   proceedings   authorized  S.   Ct.   613. 

by  the  Act  of  June  29,   1906   (34   Stat,   at  800-22c.     Attacking     judgment. — Johan- 

L.  596,  601,  chap.  3592,  U.  S.   Comp.   Stat.  nessen  v.  United  States,  225  U.   S.  227,  56 

Supp.   1909,  pp.  97,  485).  §  15.  L.    Ed.    1066,    32    S.     Ct.      613,      explaining 

A  certificate  of  naturalization,  procured  Spratt  v.  Spratt,  4  Pet.  393,  408,  7  L.  Ed. 

ex  parte  in  the  ordinary  way,  has  no  con-  897. 

elusive  effect  as  against  the  public.     Such  800-22d.    Certificates  issued  prior  to  act 

a    certificate,    including     the      "judgment"  authorizing  impeachment. — Johannessen't;. 

upon  which   it   is   based,   is   in   its   essence  United   States,    225   U.    S.    227,    56    L.    Ed. 

an    instrument    granting     political      privi-  1066,  32  S.  Ct.  613. 

leges,  and  open,  like  other  public  grants.  Ex  post  facto  laws. — The  retrospective 

to    be    revoked    if    and    when    it    shall    be  features   of   the   provisions   of   the   Act_  of 

found  to  have  been  unlawfully  or  fraudu-  June    29,    1906,    §    15,    authorizing   the    im- 

lently    procured.      "It    is    in    this    respect  peachment   of    naturalization     certificates 

912 


Vol.  VIII. 


NAVAL  SERVICE. 


800-804 


Mode  of  Procedure.— Whether  the  judicial  review  of  a  certificate  of  nat- 
uralization should  be  conducted  in  one  mode  or  another  is  a  matter  plainly 
resting  in  legislative  discretion.  Section  15  of  the  Act  of  Ume  29,  1906  (34 
Stat,  at  L.  601,  chap.  3592,  U.  S.  Comp.  Stat.  Supp.  1909,"  p.  485),  provides 
for  a  proceeding  in  a  "court  having  jurisdiction  to  naturalize  aliens,  in  the  judi- 
cial district  in  Vvdiich  the  naturalized  citizen  may  reside  at  the  time  of  bringing 
the  suit,"  upon  fair  notice  to  the  party  holding  the  certificate  of  citizenship 
that  is  under  attack.    "No  criticism  is  made  of  this  mode  of  procedure. ^^^ 

IX.  Offenses  against  the  Naturalization  Laws. 

Congress  may  constitutionally  provide  for  the  punishment  of  false  swearing 
in  naturalization  proceedings  had  in  state  courts  in  conformity  with  the  acts 
of  congress  establishing  a  uniform  rule  of  naturalization,-*'""^  and  such  convic- 
tion may  be  had  in  a  federal  court.^^'' 

NATURAL  STATE.— See  note  a. 

NAVAL  OFFICERS.— See  ante.  Army  and  Navy,  p.   150. 

NAVAL  SERVICE.— See  ante.  Army  and  Navy,  p.  150. 


where  fraudulently  or  illegally  procured, 
do  not  invalidate  that  section  under  U. 
S.  Const.,  art.  1,  §  9,  prohibiting  ex  post 
facto  laws.  Johannessen  z'.  United  States, 
225  U.  S.  227,  56  L.  Ed.  1066,  32  S.  Ct. 
613. 

Exercise  of  judicial  power. — Congress 
did  not  unconstitutionally  exercise  judicial 
power  by  enacting  the  provisions  of  the 
Act  of  June  29,  1906,  §  15,  under  which 
certificates  of  naturalization  theretofore 
issued  ex  parte  in  the  ordinary  way  may 
be  impeached  where  fraudulently  and 
illegally  procured  by  perjured  testimony. 
Johannessen  z\  United  States,  225  U.  S. 
227.    50    L.    Ed.    1060,    32    S.    Ct.    013. 

800-22e.  Mode  of  procedures. — Johan- 
nessen V.  United  States,  225  U.  S.  227,  50 
L.   Ed.   1060,   32   S.   Ct.   013. 

"In  United  States  z'.  Norsch,  42  Fed. 
417,  it  was  declared  that  the  government 
could  sue  in  a  federal  court  for  the  can- 
cellation of  a  certificate  that  had  been 
procured  by  fraud  in  a  state  court,  but  it 
was  held  that  the  facts  set  forth  in  the 
bill  did  not  make  out  a  sufficient  case  of 
fraud.  In  United  States  v.  Gleason,  78 
Fed.  396,  33  C.  C.  A.  272,  02  U.  S.  App. 
311,  90  Fed.  778,  the  contrary  conclusion 
was  reached  upon  the  main  question. 
These  two  cases  arose  prior  to  the  Act 
of  1900.  Since  the  passage  of  that  act, 
the  district  courts  have  quite  generally 
sustained  the  action  for  a  cancellation  of 
fraudulent  certificates.  United  States  v. 
Nisbet,  108  Fed.  100.") :  United  States 
V.  Simon.  170  Fed.  080;  United  States 
V.  Mansour.  170  Fed.  071;  United  States  z'. 


Meyer,  170  Fed.  983;  United  States  z: 
Luria,  184  Fed.  043;  United  States  v. 
Spohrer,  175  Fed.  440."  Johannessen  v. 
United  States,  225  U.  S.  227,  56  L.  Ed. 
1066,  32  S.  Ct.  613. 

804-45a.  Punishment  of-  false  swearing. 
— Holmgren  v.  United  States,  217  U.  S. 
509,  54  L.  Ed.  861,  30  S.  Ct.  588,  affirming 
156   Fed.   439,   84   C.   C.   A.   301. 

804-45b.  A  conviction  can  be  had  in  a 
federal  court  for  false  swearing  in  natu- 
ralization proceedings  in  a  state  court, 
under  Rev.  St.  U.  S.,  §  5395  (U.  S.  Comp. 
St.  1901,  p.  3054),  making  punishable  by 
fine  and  imprisonment  the  taking  or  mak- 
ing of  a  false  oath  or  affidavit  under  or 
by  virtue  of  any  law  relating  to  the 
natitralization  of  aliens,  or  in  any  pro- 
ceeding under  any  such  laws.  Holmgren 
V.  United  States,  217  U.  S.  509.  54  L.  Ed. 
861,  30  S.  Ct.  588. 

804-a.  Pearls  in  their  natural  state. — 
Loose  drilled  pearls  unset  and  unstrung, 
however  carefully  matched  or  desirable 
for  a  necklace,  are  dutiable  at  ten  per  cent 
ad  valorem  under  the  Tariff  Act  of  July 
24,  1897,  par.  430,  as  "pearls  in  their  natural 
state,  not  strung  or  set,"  and  are  not  clas- 
sifiable by  similitude  as  jewelry,  includ- 
ing "pearls  set  or  strung,"  dutiable  under 
par.  434  at  sixty  per  cent  ad  valorem,  be- 
cause at  some  time,  or  from  time  to  time 
previous  to  importation,  such  pearls  had 
been  strung  temporarily  for  purposes  of 
display.  United  States  v.  Citroen,  223  U. 
S.  407,  50  L.  Ed.  480,  32  S.  Ct.  239.  See 
post,  REVENUE  LAWS. 


12  U  S   Enc— 5S 


913 


NAVIGABLE   WATERS.  Vol.  VIII. 


NAVIGABLE  WATERS. 

II.  Dominion,  Sovereignty  and  Ownership  of  Navigable  Waters,  Beds, 
Shores,  etc.,  914. 

B.  As  between  the  States  and  Territories  and  the  United  States,  914. 

4.  Grant  of  Navigable  Waters  and  Underlying  Soils  in  the  States, 
914. 

III.  Riparian  and  Littoral  Rights,  917. 

C.  Incidents   of   Riparian   and  Littoral  Ownership,  917. 

3.  Right  to  Construct  and  Maintain  Wharves,  Piers,  etc.,  917. 

IV.  Regulation,    Improvement;    and   Obstruction   of   Navigable   Waters, 

918. 

A.  Powers   of   Congress,  918. 

4.  Obstruction    Not    a    Common-Law    Offense    against    the    United 

States,  918. 

5.  Delegation  of  Power  to  Improve,  Obstruct,  or  Remove  Obstruc- 

tions, to  Heads  of  Departments,  918. 

B.  Powers  of  States,  919. 

1.  States  Have  Full  Control  of  Their  Navigable  Waters,  Subject  to 

Paramount  Control  of   Congress,  919. 

2.  Not  Every  Act  of  Congress  That  Operates  to  Supersede  Power 

of   States,  919. 
F.  Proceedings  to  Abate  or  Remove  Obstructions,  919. 
2.  Civil  Proceedings,  919. 

b.  Jurisdiction;  State  and  Federal  Questions,  919. 

(1)    In   Proceeding   Instituted  by   Private   Persons,   919. 

V.  Navigable  Waters  as  Boundaries,  920. 

CROSS  REFERENCES. 

See  the  title  Navigable;  Waters,  vol.  8,  p.  807,  and  references  there  given. 

In  addition,  see  ante.  Accession,  Accretion  and  Reliction,  p.  4;  Ad- 
miralty, p.  10;  Boundaries,  p.  206;  Bridges,  p.  211;  Collision,  p.  243; 
Constitutional  Law,  p.  264;  Due  Process  oe  Law,  p.  475;  Fish  and 
Fisheries,  p.  583;  Interstate  and  Foreign  Commerce,  p.  689;  post,  Police 
Power;  Ships  and  Shipping;  Waters  and  Watercourses;  Wharves  and 
Wharfingers. 

As  to  the  power  of  the  state  to  pass  and  enforce  regulations  for  the  protec- 
tion of  the  oyster  industry  in  tidal  waters,  see  ante,  Constitutional  Law,  p. 
264;  Interstate  and  Foreign  Commerce,  p.  689.  As  to  the  lands  lying  be- 
tween the  middle  of  New  York  Bay  and  the  low-water  line  on  the  New  Jersey 
shore,  being  taxable  by  New  Jersey,  see  post.  Taxation.  As  to  whether  the 
state  of  Oregon  can,  by  virtue  of  its  concurrent  jurisdiction  over  the  Columbia 
River,  make  criminal  an  act  which  is  licensed  under  the  authority  of  the  state 
of  Washington,  see  ante.  Criminal  Law,  p.  434.  As  to  federal  regulation  of 
the  commerce  in  sponges,  see  ante.  Interstate  and  Foreign  Commerce,  p 
689. 

II.    Dominion,   Sovereignty  and  Ownership  of  Navigable  Waters,  Beds, 

Shores,  etc. 

B.    As  between  the  States  and  Territories  and  the  United  States — 

4.  Grant  of  Navigable  \\'aters  and  Underlying  Soils  in  the  States. — 
A  patent  from  the  United  States,  describing  the  land  granted  as  bounded  by 

914 


Vol.  VIII. 


NAVIGABLE    WATERS. 


820 


the  St.  Mary's  River,  carries  with  it  the  title  to  small,  iinsurveyed  islands  on  the 
American  side  of  the  international  bonndary  line,  where,  under  the  laws  of  the 
state,  a  grant  of  land  bounded  by  a  stream,  whether  navigable  in  fact  or  not, 
carries  with  it  the  bed  of  the  stream  to  the  center  of  the  thread. ■^•"^'^ 

Conveyance  by  United  States  Patent  Alone.^— The  bed  of  the  river  could 
not  be  conveyed  by  the  patent  of  the  United  States  alone,  but,  if  such  is  the  law 
of  the  state,  the  bed  will  pass  to  the  patentee  by  the  help  of  that  law,  unless 
there  is  some  special  reason  to  the  contrary.  This  view  is  well  established.^^^ 
Rights  below  high-water  mark  do  not  pass  to  patentees  of  the  United  States, 
as  appurtenant  to  the  uplands  conveyed  to  them.-*^"^' 


820-45a.  Grant  of  navigable  waters  and 
underlying  soils  in  the  states. — United 
States  v.  Chandler-Dunbar  Water  Power 
Co.,  209  U.  S.  447,  52  L.  Ed.  881,  28  S. 
Ct.   579. 

Small  rocky  islands,  without  apparent 
value,  situated  in  the  St.  Mary's  river, 
were  not  excepted  from  the  transfer  to 
the  state  by  Act  June  15,  1836,  c.  99,' 5 
Stat.  49,  50,  admitting  Michigan  to  the 
Union,  of  the  bed  of  the  stream  surround- 
ing them,  because  of  the  provisions  of 
§  4  of  that  act  that  no  right  was  con- 
ferred upon  the  state  "to  interfere  with 
the  sale  by  the  United  States,  and  imder 
their  authority,  of  the  vacant  and  unsold 
lands  within  the  limits  of  the  said  state," 
and  of  Act  June  23,  1836,  c.  121,  5  Stat, 
59,  60,  that  the  state  should  "never  inter- 
feie  with  the  primary  disposal  of  the  soil 
within  the  same  by  the  United  States." 
Decree  (1907),  152  F.  25,  81  C.  C.  A.  221, 
afifirmed.  United  States  v.  Chandler-Dun- 
bar Water  Power  Co.,  209  U.  S.  447,  52 
L.   Ed.   881,  28   S.   Ct.   579. 

820-45b.  Conveyance  by  United  States 
patent  alone. — United  States  zj.  Chandler- 
Dunbar  Water  Power  Co.,  209  U.  S.  447, 
52  L.  Ed.  881.  28  S.  Ct.  579. 

"If,  by  the  law  of  Michigan,  the  bed  of 
the  river  or  strait  would  pass  to  a 
grantee  of  the  upland,  we  may  assume 
that  it  passed  to  the  defendant,  and  we 
may  assume  further  that  the  islands  also 
passed.  If,  as  we  think,  they  belonged 
to  the  state,  they  passed  along  with  the 
bed  of  the  river.  If  they  had  belonged 
to  the  United  States,  probably  they  would 
have  passed  as  unsurveyed  islands  and 
neglected  fragments  pass."  United  States 
V.  Chandler-Dunbar  Water  Power  Co., 
209  U.   S.  447,  52  L.   Ed.  881,  28   S.  Ct.  579. 

"The  question,  then,  is  narrowed  to 
whether  the  bed  of  the  strait  is  held  to 
pass  by  the  laws  of  Michigan.  We  are 
content  to  assume  that  the  waters  are 
public  waters.  Propeller  Genesee  Chief 
V.  Fitzhugh,  12  How.  443,  457,  13  L.  Ed. 
1058.  But,  whatever  may  be  the  law  as 
to  lands  under  the  great  lakes  (People  v. 
Silberwood,  110  Mich.  103,  32  L.  P..  A. 
694,  67  N.  W.  1087),  we  believe  that  the 
law  still  is  as  it  was  declared  to  be  in 
Grand  Rauids,  etc.,  R.  Co.  z'.  Butler,  159 
U.    S.    87,    94,    40    L.    Ed.    85,    15    S.    Ct.    991, 


that  'a  grant  of  land  bounded  by  a  stream, 
whether  navigable  in  fact  or  not,  carries 
with  it  the  bed  of  the  stream  to  the  cen- 
ter of  the  thread  thereof,'  and  tliat  this 
applies  to  the  Sault  Ste.  Marie,  whatever 
it  be  called.  The  fact  that  it  is  a  bound- 
ary has  not  been  held  to  make  a  dif- 
ference. The  riparian  proprietors  upon 
it  own  to  the  center.  Ryan  z'.  Brown,  18 
Mich.  196,  100  Am.  Dec.  154."  United 
States  v.  Chandler-Dtmbar  Water  Power 
Co.,  209  U.  S.  447,  52  L.  Ed.  881,  28  S.  Ct. 
579. 

820-45C.  Same. — "If  the  appellants  did 
not  derive  the  rights  contended  for  by 
the  patents,  they  have  no  right  to  be  im- 
paired, even  assuming,  as  we  have  as- 
sumed in  this  discussion,  that  the  action 
of  the  state  has  proceeded  far  enougli  to 
be  a  trespass  upon  or  an  impairment  of 
them.  But  whether  such  rights  passed 
involves  the  construction  of  the  acts  of 
congress  under  which  the  patents  issued, 
and,  necessarily,  of  the  effect  of  the  pat- 
ents, and  presents  a  federal  question,  if 
prior  decisions  have  not  defined  such 
rights  and  removed  them  from  contro- 
versy. This  is  contended  by  appellees, 
and  Shively  v.  Bowlby.  152  U.  S.  1,  38  L. 
Ed.  331,  14  S.  Ct.  548,  is  cited."  McGilvra 
zf.  Ross,  215  U.  S.  70,  54  L.  Ed.  95,  30  S. 
Ct.    27. 

"Appellants  attack  it,  and  contend  that 
the  facts  of  Shively  z'.  Bowlby  are  so  far 
different  from  those  in  the  case  at  bar  as 
to  make  that  case  inconclusive  of  the 
questions  presented  in  the  latter.  A  de- 
termination of  the  scope  of  Shively  v. 
Bowlby  becomes  necessary.  The  con- 
troversy in  that  case  was  between  a  title 
by  United  States  patent  under  the  Oregon 
donation  land  law,  so  called,  being  the 
act  of  congress,  September  27.  1850  [9 
Stat,  at  L.  496,  chap.  76]  (and  the  same 
law  under  which  the  title  in  the  Rressler 
case  is  derived),  to  lands  hounded  by  the 
Columbia  river,  and  a  title  derived  under 
the  act  of  the  state  of  Oregon,  entitled, 
'an  act  to  provide  for  the  sale  of  tide 
and  overflowed  lands  on  the  seashore 
and  coast'  to  lands  below  high  water 
mark  on  that  river.  The  issue,  there- 
fore, was  accurately  presented  between  a 
title  under  a  patent  of  the  United  States 
and  one  conveyed  l)y  a  state  in  the  exer- 


915 


820 


NAFIGABLE   WATERS. 


Vol.  VIII. 


cise  of  its  dominion  over  lands  below 
high  water  mark.  The  issue  in  the  case 
at  bar  is  exactly  the  same.  But  a  distinc- 
tion is  pointed  out,  and  on  that  distinc- 
tion appellants'  contentions  and  argu- 
ments are  based.  The  Shively  case  was 
concerned  with  shore  lands  within  the  ebb 
and  flow  of  the  tide.  In  the  case  at  bar 
the  lands  border  on  navigable  v/aters,  but 
not  on  tidal  waters.  The  Shively  case, 
it  is  therefore  contended,  as  we  have  said, 
is  not  applicable,  for,  it  is  said,  that  when- 
ever the  'court,  in  deciding  said  cause, 
used  the  term  "navigable  waters"  in  dis- 
cussing the  case  then  before  it,  said  term 
meant  tidal  waters,  for  the  question  of 
rights  upon  tidal  waters  v/as  the  only 
question  therein  presented.' "  McGilvra 
V.  Ross,  215  U.  S.  70,  5-t  L.  Ed.  95,  30  S. 
Ct.    27. 

'"The  argument  to  sustain  the  conten- 
tion is  not  confined  to  an  pn.nlvsis  of  the 
case,  but  goes  beyond,  and  l)y  the  cita- 
tion of  many  cases  seeks  to  determine  the 
riparian  rights  of  appellants  by  the  com- 
mon-law test  of  navigability;  to  wit,  the 
ebb  and  flow  of  the  tide.  We  will  not  re- 
view the  reasoning  by  vt^hich  this  conten- 
tion is  attempted  to  be  supported.  It  is 
enough  to  say  that  the  test  of  navigability 
of  waters  insisted  on  has  had  no  place  in 
American  jurisprudence  since  the  decision 
in  the  case.  Propeller  Genesee  Chief  v. 
Fitzhugh,  12  How.  443,  13  h.  Ed.  1058, 
and  is  therefore  no  test  of  rioarian  owner- 
ship." IMcGilvra  v.  Ross,  215  U.  S.  70, 
54  L.   Ed.  95,  30  S.  Ct.  27. 

"This  is  the  effect  of  Shively  z\  Bowlby. 
152  U.  S.  1,  38  L,  Ed.  331,  14  S.  Ct.  548. 
The  whole  doctrine  is  there  displayed, 
and  the  court  declared  that,  on  accoun*: 
of  the  diversity  of  view  entertained  of 
'the  scope  and  effect  of  the  previous  de- 
cisions of  this  court  unon  thp  subiect  of 
public  and  private  rights  in  lands  below 
high  water  mark  of  navigable  waters,'  it 
appeared  'to  be  a  fit  occasion  for  a  full 
review  of  those  decisions  and  a  con- 
sideration of  other  authorities  upon  the 
subject.'  And  the  term  'navigable  waters.' 
as  there  used,  meant  waters  which  were 
navigable  in  fact."  McGilvra  r.  Ross,  215 
U.   S.  70,   54  L.   Ed.  95,  30  S.   Ct.  27,   31. 

"The  definition  was  not  inadvertent  or 
unnecessary.  It  was  that  to  which  the 
reasoning  conducted  and  which  became 
the  test  of  the  dominion  of  the  national 
and  state  governments  over  shore  lands 
and  the  rights  M'hich  thev  hpd  or  co^ld 
convey.  Hence,  this  conclusion  by  the 
court:  'The  title  and  rights  of  riparian 
or  littoral  proprietors  in  the  soil  below 
high  water  mark,  therefore,  are  governed 
by  the  laws  of  the  several  states,  subject 
to  the  rights  granted  to  the  United  States 
by  the  constitution.'"  McGilvra  r.  Ross, 
215  U.  S.  70,  54  L.  Ed.  95,  30  S.  Ct.  27. 

"It  was  observed  that  the  United 
States,  while  it  held  the  country  as  a  ter- 


ritory, havina"  all  the  nowers  of  national 
and  of  municipal  government,  might  have 
granted  for  appropriate  purposes  rights 
and  titles  below  high  water  mark.  See 
United  States  ?•.  Winans,  198  U.  S.  371, 
49  L.  Ed.  1089,  25  S.  Ct.  662."  McGilvra 
V.  Ross,  215  U.  S.  70,  54  L.  Ed.  95,  30  S. 
Ct.    27. 

"But  it  was  said  that  they  had  never 
done  so  by  general  laws,  but  had  con- 
sidered it  'as  most  in  accordance  with  the 
interest  of  the  people  and  with  the  object 
for  which  the  territories  were  acquired  of 
leaving  the  administration  and  disposi- 
tion of  the  sovereign  rights  in  navigable 
waters,  and  in  the  soil  imder  them,  to 
the  control  of  the  states  respectively, 
when  organized  and  admitted  into  the 
Union.'  This  policy,  it  was  remarked,  as 
'to  navigal)le  waters  and  the  soils  under 
them,  whether  within  or  above  the  ebb 
and  flow  of  the  tide,'  has  been  'constantly 
acted  upon.'  And  hence  it  was  further 
said:  'Grants  by  congress  of  portions  of 
the  public  lands  within  a  territory  to  set- 
tlers thereon,  though  bordering  on  or 
bounded  by  navigable  waters,  convey,  of 
their  own  force,  no  title  or  right  below 
high  water  mark,  and  do  not  impair  the 
title  and  dominion  of  the  future  state 
when  created,  but  leave  the  question  of 
the  use  of  the  shores  by  the  owners  of 
uplands  to  the  sovereign  control  of  each 
state,  subject  only  to  the  rights  vested 
by  the  constitution  in  the  United  States.' 
The  conclusion  necessarily  follows,  as  ex- 
pressed by  the  court,  that  the  state  may 
dispose  of  its  lands  under  navigable 
waters  'free  from  any  easement  of  the 
upland  proprietor.'  "  McGilvra  v.  Ross, 
215  U.   S.   70,  54  L.   Ed.  95,  30   S.   Ct.  27. 

In  Kansas  v.  Colorado,  206  U.  S.  46,  93, 
51  L.  Ed.  956,  27  S.  Ct.  655,  it  was  said, 
as  a  deduction  from  many  previous  cases, 
including  Shively  v.  Bowlby,  152  U.  S. 
1,  38  L.  Ed.  331,  14  S.  Ct.  548,  "that  each 
state  has  full  iurisdiction  over  the  lands 
within  its  borders,  including  the  beds  of 
streams  and  other  waters."  Barney  v. 
Keokuk,  94  U.  S.  324,  24  L.  Ed.  ri24,  was 
quoted  from  as  follovv's:  "And  since  this 
court,  in  the  case  of  Propeller  Gencst-e 
Chief  V.  Fitzhugh,  12  How.  443,  13  L.  Ed. 
1058,  has  declared  that  the  Great  Lakes 
and  other  navigable  waters  of  the  coun- 
try, above  as  well  as  below  the  flow  of 
the  tide,  are,  in  the  strictest  sense,  en- 
titled to  the  donomination  of  navigable 
waters,  and  amendable  to  the  admiralty 
jurisdiction,  there  seems  to  be  no  sound 
reason  for  adhering  to  the  old  rule  as  to 
the  proprietorship  of  the  beds  and  shores 
of  such  waters.  It  properly  belongs  to 
the  states  by  their  inherent  sovereignty, 
and  the  United  States  has  _  wisely  ab- 
stained from  extending  (if  it  could  ex- 
tend) its  survey  and  grants  bevond  the 
limits  of  high  water."  McGilvra  i'.  Ross, 
215  U.  S.  70,  54  L.  Ed.  95,  30  S.  Ct.  27. 


916 


Vol.  Yin. 


X  AVI  GABLE    WATERS. 


822-840 


Doctrine  Extends  to  Navigable  Lakes.— See  note  46. 
III.  Riparian  and  Littoral  Rights. 

C.  Incidents  of  Riparian  and  Littoral  Ownership — 3.  Right  to  Con- 
struct AND  Maixtaix  \\harvhs,  Pikrs,  etc. — In  America. — "The  rights  of 
a  riparian  owner  upon  a  navigable  stream  in  this  country  are  governed  by  the 
law  of  the  state  in  which  the  stream  is  situated.  These  rights  are  subject  to 
the  paramount  public  right  of  navigation.  The  riparian  proprietors  have  the 
right,  amon^  others,  to  build  private  wharves  out  so  as  to  reach  the  navigable 
waters  of  the  stream. "'^"^ 

A  Property  Right  Which  Can  Not  Be  Impaired.— A  private  wharf  on 
a  navigable  stream  is  held  to  be  property  which  can  not  be  destroyed  or  its 
value  impaired,  and  it  is  property  the  exclusive  use  of  which  the  owner  can 
only  be  deprived  in  accordance  with  established  law;  and  if  necessary  that  it 
or  any  part  of  it  be  taken  for  the  public  use,  due  compensation  must  be  made.'*"'' 

When  the  Public  Seeks  the  Right  to  Use  Private  Wharf. — In  order  that 
the  public  may  acquire  the  right  to  use  a  private  wharf,  its  rights  must  be  ob- 
tained by  an  adverse  user  so  as  to  take  away  from  the  owner  the  ordinary  rights 
of  ownership.^'"^' 


822-46.  Doctrine  extends  to  navigable 
lakes. — "The  right  of  the  state  to  grant 
lands  covered  by  tide  waters  or  navigable 
lakes,  and  the  qualifications,  as  stated  in 
Shively  v.  Bowlby,  152  U.  S.  1,  47,  38  L. 
Ed.  331,  14  S.  Ct.  548,  are  that  tne  state 
may  use  or  dispose  of  any  portion  of  the 
same  'when  that  can  be  done  without  sub- 
stantial impairment  of  the  interest  of  the 
public  in  sucli  waters,  and  subject  to  the 
paramotuit  right  of  congress  to  control 
their  navigation  so  far  as  may  be  neces- 
sary for  the  regulation  of  commerce."  "" 
United  States  v.  Chandler-Dunbar  Water 
Power  Co..  209  U.  S.  447,  52  L.  Ed.  881, 
28    S.    Ct.    579. 

840-90a.  In  America — In  Virginia. — 
Weems  Steamboat  Co.  v.  People's  Steam- 
boat Co.,  214  U.  S.  345,  53  L.  Ed.  1024,  29 
S.    Ct.   061. 

Riparian  proprietors  in  Virginia  have 
the  right  to  build  out  private  wharves  so 
as  to  reach  the  navigable  waters  of  the 
stream.  Decree  (1907),  152  F.  1022,  82  C. 
C.  A.  276,  reversed.  Weems  Steamboat 
Co.  V.  People's  Steamboat  Co.,  214  U.  S. 
345,  53   L.  Ed.  ]024.  29  S.   Ct.  661. 

"If  the  wharf  obstructs  navigation  or 
the  private  rights  of  others,  or  if  it  en- 
croach upon  any  public  landing,  the 
wharf  may  be  abated.  Va.  Code,  1887, 
§  998."  Weems  Steamboat  Co.  v.  People's 
Steamboat  Co.,  214  U.  S.  345,  53  L.  Ed. 
1024,   29   S.   Ct.   661. 

840-90b.  A  property  right  which  can 
not  be  impaired. — Weems  Steamboat  Co. 
V.  People's  Steamboat  Co.,  214  U.  S.  345, 
53    L.    Ed.    1024;   29    S.    Ct.   661. 

"The  owner  of  a  private  wharf  on  a 
navigable  stream  does  not,  on  that  ac- 
count only,  hold  it  by  a  different  title 
from  the  owner  of  any  other  property 
which  he  may  use  himself  or  permit  oth- 
ers whom  he  may  select  to  use,  while,  at 


the  same  time,  denying  its  use  by  anyone 
else."  Weems  Steamboat  Co.  v.  People's 
Steamboat  Co.,  214  U.  S.  345,  53  L.  Ed. 
1024,  29  S.  Ct.  661. 

The  owner  or  lessee  of  the  exclusive 
right  to  use  a  wharf  on  a  navigable 
stream  need  not  permit  its  use  by  others 
upon  payment  of  reasonable  compensa- 
tion therefor  because  there  is  no  other 
wharf  at  that  port,  or  because  such  use 
is  convenient,  and  has  been  permitted  by 
the  former  owner  or  lessor.  Weems 
Steamboat  Co.  ■;:■.  People's  Steamboat  Co., 
214  U.  S.  345,  53  L.  Ed.  1024,  29  S.  Ct.  661. 

840-90C.  When  public  seeks  the  right  to 
use  a  private  wharf. — W^eems  Steam- 
boat Co.  f.  People's  Steamboat  Co.,  214 
U.   S.  345,  53  L.  Ed.  1024,  29  S.   Ct.  661. 

In  regard  to  the  use  of  a  private  wharf 
by  the  public,  with  or  without  compensa- 
tion to  the  owner,  the  public  can  obtain 
no  adverse  right  as  against  such  owner 
by  mere  user.  To  obtain  it  there  must 
be  an  intention  on  the  part  of  the  owner 
to  dedicate  the  property  to  the  use  of  the 
public,  and  there  must  be  an  acceptance 
of  such  dedication  on  the  part  of  some 
public  authority,  which  may  sometimes 
be  implied  (but  not  in  such  a  case  as 
this),  and,  in  the  absence  of  such  dedi- 
cation and  acceptance,  the  use  will  be  re- 
garded as  under  a  simple  license,  subject 
to  withdrawal  at  the  pleasure  of  the 
owner.  Such  was  the  case  here.  Weems 
Steamboat  Co.  v.  People's  Steamboat  Co., 
214  U.  S.  345,  53  L.  Ed.  1024,  29  S.  Ct. 
661. 

"We  see  no  sufficient  reason  for  sub- 
jecting a  private  wharf  to  the  public  use, 
which  may  frequently  include  tliat  of  a 
competitor  with  the  owner,  simply  be- 
cause there  is  no  other  wharf  at  the  place. 
A  public  wharf,  it  is  presumed,  may  be 
built,    or,    if   there    be    no   place    for    one, 


917 


854 


N  ATI  GABLE    WATERS. 


Vol.  VIII. 


IV.     Regulation,   Improvement,   and  Obstruction  of  Navigable   Waters. 

A.  Powers  of  Congress — 4.  Obstruction  Not  a  Common-Law  Offense 
AGAINST  THF  Unitfd  StatES. — See  note  26. 

5.  Delegation  of  Power  to  Improve,  Obstruct,  or  Remove  Oibstructions, 
TO  Heads  of  Departments. — "The  court  has  heretofore  held,  upon  full  con- 
sideration, that  congress  had  full  authority,  under  the  constitution,  to  enact  §  18 
of  the  Act  of  March  3,  1899,  and  that  the  delegation  to  the  secretary  of  war  of 
the  authority  specified  in  that  section  was  not  a  departure  from  the  established 
constitutional  rule  that  forbids  the  delegation  of  strictly  legislative,  or  judicial 
powers  to  an  executive  officer  of  the  government."-*^'^ 


the  private  wharf  might  l)e  taken  by  pub- 
lic authority  for  the  public  use,  upon 
compensation  being  made  for  the  taking 
of  the  property."  Weems  Steamboat  Co. 
V.  People's  Steamboat  Co.,  214  U.  S.  345, 
53    L.    Ed.    1024,   29   S.    Ct.   661. 

If  the  owner  of  one  of  these  wharves 
had  devoted  it  to  the  public  use,  and  per- 
mitted the  public  to  use  it  as  it  desired, 
and  demanded  compensation  for  such  use, 
the  question  as  to  the  amount  of  such 
compensation  might  be  raised,  to  be  de- 
termined with  reference  to  ^the  reason- 
ableness of  the  charge.  But  this  is  no 
such  case.  The  legislature  has  passed  no 
law  regarding  rates,  if  that  were  material, 
and  the  reasonableness  of  the  charge  is 
not  under  consideration.  The  right  to 
use  the  property  has  been  withdrawn  by 
the  owner  as  to  the  public  in  general, 
including  defendant.  The  only  question 
is  whether  a  third  person  has  the  right 
to  use  a  private  wharf  on  tendering  rea- 
sonable compensation  therefor,  because 
there  is  no  other  wharf  at  the  place,  or 
because  it  would  be  more  convenient  to 
such  third  person  to  so  use  it,  or  because 
the  former  owner  of  the  wharf  had  per- 
mitted the  public  to  use  it,  although  the 
present  owner  refused  to  consent  to  such 
use.  There  is  no  more  reason  why  such 
property  should  be  held  subject  to  the 
right  of  others  to  use  it  against  the  will 
of  its  owner  than  there  is  for  any  other 
kind  of  property  to  be  so  held.  Weems 
Steamboat  Co.  v.  People's  Steamboat  Co., 
214  U.  S.  345,  53  L.  Ed.  1024,  29  S.  Ct.  661. 

"The  question  as  to  the  right  of  the 
owner  to  exclude  others  from  the  use  of 
a  private  wharf  on  a  navigable  stream  has 
been  very  recently  decided  by  this  court 
in  Louisville,  etc.,  R.  Co.  v.  West  Coast 
Naval  Stores  Co.,  198  U.  S.  483,  49  L.  Ed. 
1135,  25  S.  Ct.  745,  and  the  right  of  such 
owner  to  exclude  any  or  all  other  persons 
from  the  use  of  such  wharves  was  af- 
firmed. The  owner  was  not,  it  was  also 
said,  compelled  to  use  the  wharf  ex- 
clusively for  his  own  business  or  else  to 
throw  it  open  for  the  use  of  everyone; 
that  he  could  not  only  use  it  himself  and 
permit  some  others  to  use  it,  but  might, 
at  the  same  time,  exclude  still  others  to 
whom  he  did  not  choose  to  grant  such 
right."      Weems    Steamboat    Co.    v.    Peo- 


ple's Steamboat  Co.,  214  U.  3.  345,  53  L. 
Ed.    1024,   29   S.    Ct.   661. 

854-26.  Obstructions  in  navigable 
waters  which  are  entirely  within  a  state 
may  be  offenses  against  the  laws  of  the 
state,  but  constitute  no  ofifense  against 
the  United  States,  in  the  absence  of  a 
statute.  North  Shore  Boom,  etc.,  Co.  v. 
Nicomen  Boom  Co.,  212  U.  S.  406,  53  L. 
Ed.  574,  29  S.  Ct.  355;  Williamette  Iron 
Bridge  Co.  v.  Hatch,  125  U.  S.  1,  8,  31  L. 
Ed.  H29,  8  S.  Ct.  811. 

854-26a.  Delegation  of  power  to  heads 
of  departments. — Hannibal  Bridge  Co.  v. 
United  States,  221  U.  S.  194,  55  L.  Ed. 
699,  31   S.   Ct.  603. 

"All  that  the  act  did  was  to  impose 
upon  the  secretary  the  duty  of  attending 
to  such  details  as  were  necessary  in  or- 
der to  carry  out  the  declared  policy  of 
the  government  as  to  the  free  and  unob- 
structed navigation  of  those  waters  of  the 
United  States  over  which  congress,  in 
virtue  of  its  power  to  regulate  commerce, 
had  paramount  control."  Hannibal 
Bridge  Co.  v.  United  States,  221  U.  S. 
194,  55  L.  Ed.  699,  31  S.  Ct.  603. 

"What  the  secretary  did  in  relation  to 
the  bridge  here  in  question  seems  to 
have  been  in  substantial,  if  not  in  exact, 
accordance  with  the  statute.  He  was  offi- 
cially informed  through  the  engineer 
corps,  that  the  complaints  that  came  to 
him  froin  many  sources  as  to  the  Hanni- 
bal bridge  were  Sufficient  to  require  such 
action  on  his  part  as  the  statute  au- 
thorized. He  ordered  a  hearing,  first 
causing  notice  to  be  given  to  the  parties 
interested  of  the  time  and  place  of  the 
hearing.  We  can  not  doubt  from  the 
record  that  the  hearing  Avas  adequate  and 
was  fairly  conducted.  The  result  of  the 
hearing  was  a  recommendation,  con- 
curred in  by  the  chief  of  engineers,  that 
certain  alterations  of  the  bridge  were  de- 
manded by  the  public  interests.  There 
was  a  second  hearing,  with  a  like  result. 
Then  the  secretary  acted,  and  directed 
the  making  of  such  alterations  in  the 
bridge  as  had  been  found  to  be  neces- 
sary. Of  the  character  and  extent  of 
those  alterations  the  bridge  company  was 
notified  by  an  official  coinmunication  from 
the  war  department.  It  is  true  that  that 
communication   was    signed    by     the      as- 


918 


Vol.  VIII. 


NAJ7GABLB    WATERS. 


855-867 


B.  Powers  of  States — 1.  States  Have  Full  Control  op  Their  Navi- 
gable Waters,  Subject  to  Paramount  Control  oe  Congress. — See  note  30. 

2.  Not  Every  Act  oe  Congress  That  Operates  to  Supersede  Power  oi-^ 
States. — See  note  31. 

F.  Proceedings  to  Abate  or  Remove  Obstructions — 2.  Civil  Proceed- 
ings— 1).  Jurisdiction;  State  and  Federal  Questions — (1)  In  Proceeding  In- 
stituted by  Private  Persons. — Whether  or  not  the  construction  of  a  log  loom 
in  a  navigable  stream  lying  entirely  within  the  state  is  authorized  by  the  state 
statutes  is  not  a  federal  question  which  will  sustain  a  writ  of  error  from  the 
supreme  court  of  the  United  States  to  a  state  court-^^*^ 


sistant  secretary  of  war,  and  not  by  the 
secretary  himself.  And  that  fact  is  re- 
lied upon  to  invalidate  the  entire  proceed- 
ing. There  is  no  merit  in  this  objection. 
The  comniimication  signed  by  the  as- 
sistant secretary  shows,  upon  its  face, 
that  it  was  from  the  war  department  and 
from  the  secretary  of  war,  and  that  the 
secretary,  without  abrogating  his  au- 
thority tmder  the  statute,  only  used  the 
hand  of  the  assistant  secretary  in  order 
to  give  the  owners  of  the  bridge  notice 
of  what  was  required  of  them  under  the 
statute.  It  is  physically  impossible  for 
the  head  of  an  executive  department  to 
sign,  himself,  every  official  communica- 
tion that  emanates  from  his  department." 
Hannibal  Bridge  Co.  v.  United  States, 
221  U.  S.  194,  55  L.  Ed.  699,  31  S.  Ct.  603. 

As  to  taking  property  for  public  use  by 
removing  obstructions  to  navigation,  see 
ante,   DUE   PROCESS   OF  LAW,  p.  47  5. 

855-30.  States  have  full  control  subject 
to  paramount  control  of  congress.— "The 
river  in  question  is  a  navigable  stream,  en- 
tirely within  the  state  of  Washington, 
and,  in  the  absence  of  any  statute  by  con- 
gress, a  state  has  plenary  power  in  re- 
gard to  such  waters."  North  Shore 
Boom,  etc.,  Co.  v.  Nicomen  Boom  Co., 
212  U.  S.  406,  53  L.  Ed.  574,  29  S.  Ct.  355. 

857-31.  Operation  of  act  as  superseding 
power  of  states. — Where  there  is  a  fed- 
eral law  which  it  is  claiined  also  applies 
to  the  subject  and  requires  the  consent 
of  the  federal  government,  then  there  is 
a  concurrent  or  joint  jurisdiction  of  the 
state  and  national  governments  over  the 
erection  of  a  structure  which  obstructs 
navigation.  North  Shore  Boom,  etc., 
Co.  V.  Nicomen  Boom  Co.,  212  U.  S.  406, 
53  L.  Ed.  574,  29  S.  Ct.  355;  Cummings  v. 
Chicago,  188  U.  S.  410,  47  L.  Ed.  525,  23 
S.  Ct.  472;  Montgomery  v.  Portland,  190 
U.   S.  89,  47  L.   Ed.  965,  23   S.   Ct.  735. 

867-58a.  Jurisdiction — State  and  federal 
questions. — North  Shore  Boom,  etc..  Co. 
7'.  Nicomen  Boom  Co..  212  U.  S.  406,  53 
L.    Ed.    574,   29   S.    Ct.   355. 

The  question  whether  the  acts  com- 
plained of,  such  as  obstructions,  etc.,  in 
the  river,  are  lawful  or  unlawful  under 
the  state  law,  is  a  state  question,  not  a 
federal    one.      North    Shore     Boom,      etc., 


Co.  V.  Nicomen  Boom  Co.,  212  U.  S.  406, 
53  L.  Ed.  574,  29  S.  Ct.  355;  Williamette 
Iron  Bridge  Co.  v.  Hatch,  125  U.  S.  1, 
8,   31   L.    Ed.   629,   8   S.   Ct.   811. 

It  is  contended,  however,  on  the  part 
of  the  counsel  for  the  defendant,  that 
whether  the  assent  of  the  state  has  been 
given  to  the  erection  of  the  structure  is, 
in  and  of  itself,  a  federal  question,  and 
he  cites  United  States  z>.  Bellingham  Bay 
Boom  Co.,  176  U.  S.  211,  218,  44 
L.  Ed.  437,  20  S.  Ct.  343,  as  authority  for 
the  proposition.  That  case  was  brought 
by  the  United  States  under  the  direction 
of  the  attorney  general,  pursuant  to  the 
provisions  of  §  10  of  the  river  and  harbor 
bill  of  1890  (26  Stat,  at  L.  supra).  It  was 
brought  to  enforce  the  right  of  the  gov- 
ernment to  prevent  the  erection  of  a 
structure  that  obstructed  the  navigation 
of  the  river.  It  was  held  in  that  case  that 
the  words  in  the  10th  section,  "not  affirma- 
tively authorized  by  law,"  referred  to  the 
state  as  well  as  to  the  federal  law,  and 
that  the  question  then  arose  as  to  whether 
the  structure  was  permitted  by  that 
(state)  law,  and  as  the  law  of  congress 
provided  that  it  might  be  permitted  if 
affirmatively  authorized  by  a  state  law, 
the  question  whether  it  was  so  authorized 
became,  in  effect,  a  question  whether  the 
federal  law  did  or  did  not  permit  it.  If  it 
were  authorized  by  the  state  law,  then 
the  federal  lav/  provided  that  it  might  con- 
tinue; and  whether  it  was  or  not  became 
a  federal  question.  North  Shore  Boom, 
etc.,  Co.  V.  Nicomen  Boom  Co.,  212  U.  S. 
406,  53   L.   Ed.  574,  29  S.   Ct.  355. 

"This  is  not  such  a  case,  and  it  is  not 
brought  by  the  government  under  the  sec- 
tion above  mentioned,  but  the  suit  con- 
cerns private  parties  only,  and  the  statute 
does  not,  in  the  section  applicable,  refer 
to  any  state  law,  as  in  the  case  cited. 
Section  7.  river  and  harbor  act  of  1890,  26 
Stat,  at  L.  454,  chapter  907.  .A.nd  §  10  of 
chapter  425  of  the  Laws  of  1899,  30  Stat, 
at  L.  1151,  supra,  alters  the  10th  section 
of  the  statute  of  1890  by  providing  'that 
the  creation  of  any  obstruction  not  af- 
firmatively authorized  by  congress  to  the 
navigable  capacity  of  any  of  the  waters 
of  the  United  States  is  hereby  prohibited.' 
It  leaves  out  the  words  'not  affirmatively 
authorized    bv    law,'    and    substitutes    'not 


919 


877  •  NBGLIGBNCB.  Vol.  VIII. 

V.    Navigable  Waters  as  Boundaries. 

See  ante.  Boundaries,  p.  206.  See.  also,  ante,  "Grant  of  Navigable  Waters 
and  Underlying  Soils  in  the  States,"  II,  B,  4. 

NAVIGATION. — See  ante,  Admiralty,  p.  10;  Colusion,  p.  243;  post,  Ships 
AND  Shipping. 

NAVY, — See  ante.  Army  and  Navy,  p.  150. 

NE  EXEAT. — See  the  title  Ne  Exeat,  vol.  8,  p.  871,  and  references  there 
given. 

NEGLECT.— See  post,  Negligence. 


NEGLIGENCE. 

III.  Definitions,   Distinctions  and  General  Considerations,  920. 
C.  Liability  for  Unavoidable  Accidents,  920. 

VII.  Proximate  Cause,  920. 

B.  Statement  of  General  Rule,  920. 

C.  Nearness  in  Time  or  Place  to  Catastrophe,  921. 

D.  Doctrine  of  Last  Clear  Chance,  921. 

E.  Intervening   Causes,  921. 

1.  In  General,  921. 

F.  Questions  of  Law  and  Fact,  921. 

X.  Privity,  921. 
XII.  Evidence,  922. 

A.  Presumptions  and  Burden  of  Proof,  922. 

1.  Presumption  of  Negligence,  922. 

b.  Res  Ipsa  Loquitur,  922. 

2.  Burden  of  Proof,  922. 

B.  Questions  of  Law  and  Fact,  922. 

2.  When  a  Question  of  Law  for  the  Court,  922. 

3.  When  a  Question  of  Fact  for  the  Jury,  922. 
5.  Contributory  Negligence,  922. 

CROSS   REFERENCES. 

See  the  title  Negligence,  vol.  8,  p.  873,  and  references  there  given. 

In  addition,  see  ante.  Carriers,  p.  216;  Damages,  p.  455;  Master  and  Serv- 
ant, p.  851. 

As  to  what  constitutes  contributory  negligence  in  a  traveler  using  a  railroad 
crossing,  see  ante,  Crossings,  p.  454. 

III.  Definitions,  Distinctions  and  General  Considerations. 

C.  Liability  for  Unavoidable  Accidents. — See  note  15. 

VII.  Proximate  Cause. 

B.     Statement    of    General    Rule. — Anticipation    of    Consequences. — 

Even  where  the  highest  degree  of  care  is  demanded,  still  the  one  from  whom 

affirmatively      authorized      by      congress.'  plaintiff'  can  not  make   out  a  case  against 

There  is,  therefore,  no  reference  to  strte  the   defendant,   in   an  action   for   damages 

action  or  state  law."     North  Shore  Boom,  for  alleged  negligent  injuries,  by  showing 

etc.,    Co.   V.    Nicomen    Boom    Co.,   212    U.  merely  an  accident  and  an  injury.  Waters- 

S.   406,   53   L.   Ed.   574,   29   S.   Ct.   355.  Pierce   Oil  Co.  v.  Deselms,  212  U.   S.  159, 

877-15.       Unavoidable      accidents. — The  53  L.  Ed.  453,  29  S.   Ct.  270. 

920 


Vol.  VIII. 


XBGLIGBXCE. 


881-887 


it  is  due  is  bound  to  guard  only  against  those  occurrences  which  can  reasonably 
be  anticipated  by  the  utmost  foresight.  It  has  been  well  said  that,  "if  men 
went  about  to  guard  themselves  against  every  risk  to  themselves  or  others  which 
might,  by  ingenious  conjecture,  be  conceived  as  possible,  human  affairs  could 
not  be  carried  on  at  all.  The  reasonable  man,  then,  to  whose  ideal  behavior 
we  are  to  look  as  the  standard  of  duty,  will  neither  neglect  what  he  can  fore- 
cast as  probable,  nor  waste  his  anxiety  on  events  that  are  barely  possible.  He 
will  order  his  precaution  by  the  measure  of  what  appears  likely  in  the  known 
course  of  things."-^''^ 

C.  Nearness  in  Time  or  Place  to  Catastrophe.— See  note  Z7. 

D.  Doctrine  of  Last  Clear  Chance.— See  post,  ••Questions  of  Law  and 
Fact,"  VII,  F. 

E.  Intervening  Causes— 1.  Ix  General.— See  notes  41,  44. 

F.  Questions  of  Law  and  Fact.— See  post,  '•Questions  of  Law  and  Fact," 
XII,  B.     See  note  47. 

X.  Privity. 

See  note  66. 


881-35a.    Anticipation    of    consequences. 

— Atchison,  etc.,  R.  Co.  %■'.  Calhoun,  213 
U.  S.  1,  53  L.  Ed.  671,  29  S.  Ct.  32],  citing 
Pollock,  Torts,  8th  Ed.  41.  See  post, 
"In    General,"   VII,    E,   1. 

881-37.  A  jury  is  warranted  in  finding 
that  tuberculosis  of  the  spine  is  the  di- 
rect result  of  an  injury  from  a  falling- 
timber,  where  there  was  ample  evidence 
that  the  blow  occasioned  the  development 
of  the  disease,  though  it  was  not  discov- 
ered to  be  such  for  over  a  year.  Texas, 
etc.,  R.  Co.  V.  Howell,  224  U.  S.  577,  56 
L.    Ed.    892,    32    S.    Ct.    601. 

882-41.  Intervening  causes  in  general. 
— A  careless  person  is  liable  for  all  the 
natural  and  probable  consequences  of  his 
misconduct.  If  the  misconduct  ,is  of  a 
character  which,  according  to  the  usual 
experience  of  mankind,  is  calculated  to 
invite  or  induce  the  intervention  of  soine 
subsequent  cause,  the  intervening  cause 
will  not  excuse  him,  and  the  subsequent 
mischief  will  be  held  to  be  the  result  of 
the  original  misconduct.  This  is  upon  the 
ground  that  one  is  held  responsible  for 
all  the  consequences  of  his  act  which  are 
natural  and  probable,  and  ought  to  have 
been  foreseen  by  a  reasonably  prudent 
man.  Atchison,  etc.,  R.  Co.  %<.  Calhoun, 
213  U.   S.   1,  53   L.  Ed.  671,  29   S.   Ct.  321. 

883-44.  Intervening  efficient  causes  will 
bar  recovery. — The  law,  in  its  practical 
administration,  regards  only  proximate 
or  immediate,  and  not  remote,  causes,  and, 
in  ascertaining  which  is  proximate  and 
which  remote,  refuses  to  indulge  in  meta- 
physical niceties.  Where,  in  the  sequence 
of  events  between  the  original  default  and 
the  final  mischief  an  entirely  independent 
and  unrelated  cause  intervenes,  and  is  of 
itself  sufficient  to  stand  as  the  cause  of 
the  mischief,  the  second  cause  is  ordina- 
rily regarded  as  the  proximate  cause  and 
the  other  as  the  remote  cause.  This  is 
emphatically    true    when    the    intervening 


cause  is  the  act  of  some  person  entirely 
unrelated  to  the  original  actor.  Atchison, 
etc.,  R.  Co.  V.  Calhoun,  213  U.  S.  1,  53  L. 
Ed.  671.  29  S.  Ct.  321,  citing  Insurance  Co. 
V.  Tweed,  7  Wall.  44,  52,  19  L.  Ed.  65. 

884-47.  Proximate  cause  a  question  for 
jury. — The  negligence  of  one  who  care- 
lessly places  herself  in  a  position  exposed 
to  danger  can  not  as  matter  of  law  be  said 
to  be  the  proximate  cause  of  an  injury,  if 
her  negligence  was  discovered  in  time  to 
avoid  the  injury  by  the  use  of  reasonable 
care,  and  such  care  was  not  exercised. 
Judgment  (1904)  23  App.  D.  C.  551,  re- 
versed. Chunn  V.  City,  etc.,  Railway,  207 
U.  S.  302,  52  L.  Ed.  219,  28  S.  Ct.  63.  See 
ante,  CARRIERS,  p.  210. 

Whether  a  fire  was  caused  by  the  in- 
flamable  nature  of  a  mixture  of  coal  oil 
and  gasoline  sold  as  coal  oil  is  for  the 
jury,  where  the  evidence  while  tending  to 
show  that  such  mixture  had  been  used  to 
saturate  kindling  wood  in  a  stove,  tends 
to  rebut  implication  that,  after  the  fire  had 
been  liglited,  the  mixture  was  poured  upon 
it.  Judgment  (1907)  89  P.  212,  18  Okl. 
107,  affirmed.  Waters-Pierce  Oil  Co.  v. 
Deselms,  212  U.  S.  159,  53  L.  Ed.  453.  29 
S.   Ct.  270. 

887-66.  Liability  of  oil  company  to  con- 
sumer  for   injuries   from   explosion. — The 

absence  of  any  contractual  relation  be- 
tween an  oil  company  and  a  private  con- 
sumer does  not  relieve  the  company  from 
liability  fur  injury  sustained  by  the  latter 
in  using,  in  the  customary  manner,  a  tiuid 
which  both  he  and  his  innocent  vendor 
supposed  was  coal  oil,  but  which  the  oil 
company,  knowing  that  it  contained  gaso- 
line, sold  to  such  vendor  as  coal  oil  in 
violation  of  statute,  and  with  the  expecta- 
tion that  it  would  be  retailed  to  the  pub- 
lic for  domestic  use  as  such.  Waters- 
Pierce  Oil  Co.  V.  Deselms.  212  U.  S.  159, 
53  L.  Ed.  453,  29  S.  Ct.  270,  citing  Savings 


921 


889-892 


NEGLIGBNCB. 


Vol.  VIII. 


XII.  Evidence. 

A.  Presumptions  and  Burden  of  Proof. — See,  generally,  post,  Presump- 
tions AND  Burden  of  Proof. 

1.  Presumption  of  NfgligencF — b.    Res  Ipsa  Loquitur. — See  note  72. 

2.  BuRDFN  OF  Proof. — Contributory  Negligence. — The  burden  of  proof 
is  upon  the  plaintifif  to  establish  the  defendant's  negligence. '^'^^ 

B.  Questions  of  Law  and  Fact. — See  ante,  "Questions  of  Law  and  Fact," 
VII,  F. 

2.  Whfn  a  Question  of  Law  for  thf  Court. — See  note  81. 

3.  Whfn  a  Question  of  Fact  for  the  Jury. — See  note  82. 
5.    Contributory  Negligence. — See  note  86. 


Bank  v.  Ward,  100  U.  S.  195,  204,  25  L.  Ed. 
621. 

Quaere,  question  was  raised  but  not  de- 
cided whether  the  original  vendor  is  liable 
to  a  consumer  for  negligently  mixing  gas- 
oline with  coal  oil  where  the  intermediate 
retailer  has  knowledge  of  the  dangerous 
character  of  the  oil.  Waters-Pierce  Oil 
Co.  V.  Deselms.  212  U.  S.  159,  53  L-  Ed. 
453.  29  S.  Ct.  270. 

889-72.  The  doctrine  of  res  ipsa  loquitur 
is  when  a  thing  which  causes  injury, 
without  a  fault  of  the  injured  person, 
is  shown  to  be  under  the  exclusi\e  con- 
trol of  the  defendant,  and  the  injury  is 
such  as,  in  the  ordinary  course  of  things, 
does  not  occur  if  the  one  having  such  con- 
trol uses  proper  care,  it  affords  reasonable 
evidence,  in  the  absence  of  an  explanation, 
that  the  injury  arose  from  the  defendant's 
want  of  care.  San  Juan  Light,  etc.,  Co.  v. 
Requena,  224  U.  S.  89,  56  L.  Ed.  680,  32  S. 
Ct.  399. 

The  doctrine  of  res  ipsa  loquitur  is 
properly  applied  where  a  customer  of  a 
company  supplying  electricity  for  light- 
ing purposes,  engaging  to  deliver  a  suit- 
able current  for  such  purpose,  was  killed 
without  fault  on  his  part,  while  the  sec- 
ondary wire  carrying  the  current  to  his 
residence  conveyed  an  excessive  and  dan- 
gerous current  which  could  only  come 
from  the  primary  wire  of  such  company, 
which  carried  a  current  of  high  and  deadly 
voltage,  which  dangerous  current  would 
not  have  been  communicated  to  the  sec- 
ondary wire  if  its  wires  and  converters, 
which  were  exclusively  under  its  control, 
had  been  in  proper  condition,  and  the 
converters  were  found,  immediately  after 
the  accident,  to  be  out  of  order,  one  being- 
heated  and  its  insulation  charred,  and  the 
protecting  ground  wire  of  the  other  being 
severed.  San  Juan  Light,  etc.,  Co.  v.  Req- 
uena, 224  U.  S.  89,  56  L.  Ed.  680,  32  S.  Ct. 
399.     See  ante,   ELECTRICITY,  p.  536. 

890-77a.  Burden  of  proof — Contributory 
negligence. — Waters-Pierce  Oil  Co.  v. 
Deselms,  212  U.  S.  159,  53  L  Ed.  453,  29  S. 
Ct.  270. 

890-81.  Questions  of  negligence  do  not 


become  questions  of  law,  to  be  decided  by 
the  court  except  "where  the  facts  are  such 
that  all  reasonable  men  must  draw  the 
same  conclusion  from  them;  or,  in  other 
words,  a  case  should  not  be  withdrawn 
from  the  jury  unless  the  conclusion  fol- 
lows as  matter  of  law  that  no  recovery 
can  be  had  upon  any  view  which  can  be 
properly  taken  of  the  facts  the  evidence 
tends  to  establish."  Kreigh  v.  Westing- 
house,  etc.,  Co.,  214  U.  S.  249,  53  L.  Ed. 
98jt,  29  S.  Ct.  619,  following  Gardner  v. 
Michigan  Cent.  R.  Co.,  150  U.  S.  349,  361. 
37  L.   Ed.  1107,  14  S.  Ct.  140. 

891-82.  When  negligence  a  question  of 
fact  for  jury. — If,  upon  the  facts,  reason- 
able men  might  fairly  reach  the  conclu- 
sion that  the  plaintiff,  while  herself  in  the 
exercise  of  due  care,  was  injured  by  the 
negligence  of  the  defendant,  the  case 
should  have  been  submitted  to  the  jury. 
Chunn  V.  City,  etc.,  Railway,  207  U.  S.  302, 
52   L.   Ed.  219,  28  S.  Ct.  63. 

Whether  it  is  negligence  to  run  a  street 
car  at  full  speed  past  a  usual  stopping 
place  when  persons  can  plainly  be  seen 
standing  upon  the  platform  between  the 
inner  rails,  awaiting  a  car  approaching 
from  the  opposite  direction,  is  a  question 
for  the  jury,  where  the  street  car  company 
had  sanctioned  such  a  practice  on  the  part 
of  intending  passengers,  and  the  space  be- 
tween the  rails,  while  wide  enough  to 
enable  a  person  standing  in  the  center  to 
escape  injury  left  but  a  narrow  margin  of 
safety.  Chunn  v.  City,  etc..  Railway,  207 
U.  S.  302,  52  L.  Ed.  219,  28  S.  Ct.  63.  See 
?nte.  CARRIERS,  p.  216;  post,  STREET 
RAILWAYS. 

892-86.  Contributory  negligence  a  ques- 
tion for  jury. — The  trial  court  properly 
refused  to  charge  as  a  matter  of  law  that 
the  evidence  established  the  defense  of 
contributory  negligence,  where  the  testi- 
mony on  that  question  was  such  as  to 
leave  fair  ground  for  difference  of  opinion. 
Delk  V.  St.  Louis,  etc.,  R.  Co.,  220  U.  S. 
580,  55  L.  Ed.  590,  31  S.  Ct.  617,  reversing 
judgment  (1908),  St.  Louis  &  S.  F.  R.  Co. 
V.  Delk,  158  F.  931,  86  C.  C.  A.  95,  14  A.  & 
E.  Cas.  233. 


922 


Vol.  VIII.  XEJJ'   TRIAL.  912-913 

NEGOTIABLE   PAPER.— See  ante.  Bills,  Notes  and  Checks,  p.  204. 

NEGROES. — See  ante,  Civil    Rights,  p.  236;    Interstate    and    Foreign 
Commerce,  p.  689;  Jury.  p.  813. 

'  NEUTRALITY.— See  the  title   Xeutrality,  vol.   8,  p.   894,  and  references 
there  2;iven. 

NEWLY-DISCOVERED   EVIDENCE.— See  post,   New   Trial. 

NEWSPAPERS.— See  the  title  Newspaper,  vol.  8,  p.  906,  and  references 
there  given.     In  addition,  see  ante,  Jury,  p.  813 ;  post,  New  Trial. 


NEW  TRIAL 

III.  Motion  or  Application,  923. 

B.  Time  of  .Alotion,  923. 

3.  Court  of  Claims,  923. 

4.  \\'hen  Too  Late,  923. 

D.  Hearing  and  Determination,  923. 
3.  Evidence,  923. 

IV.  Grounds  of  Motion,  924. 

C.  ^Misconduct  and  Incompetency  of  Jurors,  924. 
J^.  Former  Conviction,  924. 

CROSS   REFERENCES. 

See  the  title  New  Trial,  vol.  8,  p.  907,  and  references  there  given. 

III.    Motion  or  Application. 

B.  Time  of  Motion — 3.  Court  of  Claims. — See  note  13.  Congress  had 
power  to  grant  these  advantages  to  the  United  States  since  the  government  in 
consenting  to  be  sued  has  the  right  to  attach  such  conditions  to  its  consent  as 
to  it  may  seem  proper.i^'^ 

4.  \\'hen  Too  Late. — Power  to  Grant  on  Motion  after  Term. — Ordi- 
narily a  court  has  no  power  to  grant  a  new  trial  after  the  adjournment  of  the 
term  if  no  application  has  been  made  previous  to  the  adjournment  and  no  con- 
tinuance granted. ^^^ 

D.     Hearing  and  Determination. — 3.    Evidence. — See  note  20. 

912-13.     Applies  to   Indian   Depredation  son  :•.  United  States,  210  U.  S.  168,  175,  52 

Act. — Claims    under     Indian    Depredation  L.  Ed.  1007,  28  S.  Ct.  661. 

Act  :\Iarch  3,  1891,  c.  538,  26  Stat.  851  (U.  S.  9l3-14a.    Power   to    grant   after    term.— 

Comp.   St.  1901,  p.  758).  are  embraced  by  Sanderson  v.  United  States,  210  U.  S.  168, 

the  provisions  of  Rev.  St.  U.  S.,  §  1088  (U.  i-~    52  L.  Ed.  1007,  :.',s  ^.  Ct.  661. 


S.  Comp.  St.  1901,  p.  745),  giving  tlie  court 


913-20.    Evidence    impeaching   verdict. — 


ot    clanns    power    to  grant    new  trials    on  rp,      .      ,.  .  ■         ^        ..    ^u 

u  u   If      {    t-i       T"„v„^    c^of^o  ^he  testimony  of  jurors  as  to  the  motives 
motion    on    behalf    of    the    Lnited    States.         ^  ,  ■    a  ■        ^\    •  j-  ..       -u 

o       1  TT    -i   J  Ct  4-        ntn  Tj    c    -iro  ?nd  rcasons   innuencing  their  verdict  will 

Sanderson  t'.  United  States,  210  U.  b.  168,  .  ,  .      ,  ^    u         -^       1   ..       *. 

-p  T      PI    ^„„^    ^o  q    P     ^,j..  not  be  received,  except  where  it  relates  to 

"t-_.-I*^4.-    '    'j  "     ^l^4.^\^lur  4.^  4.;^^  ^t  ^^  extraneous   influences    tending   to   prevent 

Limitation  does  not  apply  to  time  or  de-  .,  .  r     ,  11        ^  ^        u-       ^ 

r         .•  \    1-     -4.  4.-  „   1-^ 11^  the    exercise    of    deliberate    and    unbiased 

cision  of  motion. — A  limitation  applicable  ;.  j   „     j.     xj    j         tt    -^    1  c*  ..       o-    \ 

^     ^,      ^.         r       cv        .1  .■ „j  „^t.  udgment.     Hvde  z\  United  States,  3o  ApD. 

to  the  time  for  hung  the  motion,  and  not  y>.    '^    ,.,         .-      .        ,•         •  ..    1  tit     i 
..     ^i.     ^-        r             }  ^      4.U     A   ^-  ■    .  4U^^^  LJ-  C.  4ol,  writ  of  certiorari  granted  tJyde 
to  the  time  for  making  the  decision  there-  ^,    tt,,u.,^   c+  ^^^    0-0  tt    c    .-o,     -,   r     v.] 
J     ,       ^,                •   •    „   ^r  r)„       Ot  7'.   United  btates,  218   U.   b.  t)81,  oi  L,.  b.a. 
on,  is  made  by  the  provision  ot  Kev.  bt.  ,,^.-,   .,     o    p^   „„„ 
U.  S..  §  1088  (U.  S.  Comp.  St.  1901.  p.  745),  i-^^',  -i  »•  ^.t.  „..s.             _ 
that  the  court  of  claims,  "within  two  vears           T^^  ^"^^  '^^"'"^  commits  no  error  in  de- 
next  after  the  final  disposition"  of  a  claim,  py'^g  a  motion  for  a  new  trial  in  a  crim- 
may,   on  motion  on  behalf  of  the  United  '."a'   case,   founded   upon   the   affidavits   of 
States,    grant    a  new    trial.      Sanderson    v.  ■'"'"oi's  to  the  effect  that  they  did  not  un- 
united   States,    210    U.  S.    168,    52    L.    Ed.  derstand   the   legal   effect  of  their  verdict. 
1007    ''8  S    Ct    661  Hendrix  r.  United  States,  219  U.  S.  79,  55 
912-13a.      Power    of    congress. — Sander-  L.  Ed.  102,  31   S.  Ct.  19.5. 

923 


915-956  OFFICERS.  Vol.  VIIL 

IV.  Grounds  of  Motion. 

C.    Misconduct  and  Incompetency  of  Jurors. — See  note  29. 

J|.  Former  Conviction. — Waiver  of  Ground. — It  is  not  an  abuse  of  dis- 
cretion for  the  district  court  to  refuse  a  new  trial  in  a  misdemeanor  case  on 
account  of  defendant's  former  conviction  of  the  same  offense,  when  such  con- 
viction was  first  brought  to  its  attention  by  motion  for  new  trial. ^^a 

NINETY- FOURTH  EQUITY  RULE.— See  post,  Stock  and  Stockholders. 

NOMINAL  PARTY. — See  ante,  Courts,  p.  398;  post,  Removal  of  Causes. 

NONJOINDER. — See  ante.  Demurrers,  p.  461 ;  post,  Parties. 

NON-MARITIME  TORTS.— See  ante,  Admiralty,  p.  10;  post.  Ships  and 
Shipping. 

NONSUIT. ^See  ante.  Dismissal,  Discontinuance  and  Nonsuit,  p.  466. 

NONUSER. — See  post,  Patents;  Quo  Warranto. 

NOTARY  PUBLIC— See  the  title  "Notary  Public,  vol.  8,  p.  926,  and  ref- 
erences there  given.  As  to  •  affidavit  for  extradition  purposes  being  sufficient 
when  made  before  a  notary  public  in  Georgia,  who,  under  the  code,  is  ex  officio 
a  justice  of  the  peace,  see  ante.  Extradition,  p.  571.  See,  also,  ante.  Magis- 
trate. 

NOTES. — See  ante.  Bills,  Notes  and  Checks,  p.  204. 

NOTICE. — See  the  title  Notice,  vol.  8,  p.  928,  and  references  there  given. 
As  to  notice  under  due  process  clause  of  the  constitution,  see  ante.  Due  Proc- 
ess OF  Law,  p.  475.  As  to  notice  and  knowledge  of  corporate  officers  being 
imputed  to  the  corporation,  see  post,  Officers  and  Agents  of  Private  Cor- 
porations. 

NOTICE  OF  PENDENCY.— See  ante.  Lis  Pendens,  p.  834. 

NOVATION.— See  the  title  Novation,  vol.  8,  p.  932. 

NOVELTY.— See  post.  Patents.  .    ■ 

NUISANCES. — See  the  title  Nuisances,  vol.  8,  p.  933,  and  references  there 
given.  As  to  the  right  to  seize  and  destroy  putrid  and  unwholesome  food,  as 
constituting  a  nuisance  and  as  a  menace  to  the  public  health,  see  post.  Police 
Power. 

OATH. — See  the  title  Oath,  vol.  8,  p.  951,  and  references  there  given.  As 
to  administrator  of  oath  in  matters  to  special  assessments,  see  post.  Special 
Assessments. 

OBITER  DICTA.— See  post.   Stare  Decisis. 

OBSTRUCTING  JUSTICE.— See  the  title  Obstructing  Justice,  vol.  8,  p. 
954,  and  references  there  given. 

OCCUPATION  TAX.— See  ante.  Licenses,  p.  826. 

OF.— See  note  955-2. 

OFFENSES  AGAINST  CIVIL  SERVICE.— See  post.  Public  Officers. 

OFFICE.— See  note  956-2. 

OFFICERS. — See  post.  Officers  and  Agents  of  Private  Corporations  : 
Public  Officers.  As  to  particular  officers,  see  the  particular  title  throughout 
this  supplement. 

915-29.    Reading    newspaper. — See    ante,  L.  Ed.    101.5,  31    S.  Ct.    7.     And    see    post, 

JURY,  p.  813.  RECORDS. 

920-52a.  Waiver  of  ground. — Judgment,  956-2.    Inception    of    office. — "An    office 

State   c'.   Durein   (1905)   80  P.  987,  70  Kan.  commonly   requires   something  more   per- 

1,   affirmed.     Durein  v.   Kansas,  208   U.   S.  manent    than    a    single    transitory    act    or 

613,  52  L.  Ed.  645,  28  S.  Ct.  567.  transaction    to    call    it    into   being."      Car- 

955-2.    Of    record. — See    Northern    Pac.  rington  z:  United  States,  208  U.  S.  1,  6,  52 

R.  Co.  V.  Trodick,  221  U.  S.  208,  55  L.  Ed.  L.  Ed.  367,  28  S.  Ct.  203.     See  ante,  ARMY 

704,  31  S.  Ct.  607.     See,  also,  United  States  AND  NAVY,  p.  150. 
V.  Chicago,   etc.,  R.   Co.,  218  U.   S.  233,  54 

924 


Vol.  YIU.    OFFICERS.  ETC.,  OF  PRIVATE  CORPORATIONS.  960 


OFFICERS  AND  AGENTS  OF  PRIVATE  CORPORATIONS. 

VI.  Election  and  Appointment,  925. 
A.  In  General,  925. 

VI.  Powers,  925. 

A.  In  General,  925. 

1.  Power  to  Act  for  and  Bind  Corporations,  925. 

B.  Of  Directors,  925. 

1.  In  General,  925. 

e.  Contracts    and    Dealings    with    Corporation,   925. 

(7)   Rescission,  925. 

f.  As  Representing  Bond  Holders,  926. 

VIII.  Duties  and  Liabilities  of  Officers  or  Agents,  926. 

A.  In  General,  926. 

4.  Compliance  with  Writs  Directed  to  Corporation,  926. 

B.  Of  Directors,  926. 

2.  Directors  as  Trustees,  926. 

IX.  Liability    of    Corporation    for    Acts    of    Officers    and   Agents,  and 
Rights  Thereunder,  926. 
A.  Responsibility   of   Corporation   for  Acts   Generally,   926. 

C.  For  Torts,  926. 

X.  Notice  to  Corporation  Through  Officers  or  Agents,  927. 

CROSS   REFERENCES. 

See  the  title  Officers  and  Agents  of  Private  Corporations,  vol.  8,  p.  957, 
and  references  there  given. 

In  addition,  see  ante.  Mines  and  jNIinerals,  p.  865. 

III.  Election  and  Appointment. 

A.  In  General. — Seal  or  Vote  of  Corporation. — There  need  be  no  writ- 
ten authority  under  seal  or  vote  of  -the  cor})oration  in  order  to  constitute  the 
agency  or  to  authorize  the  act  of  an  agent. ""^ 

VI.  Powers. 

A.  In  General — 1.  Power  to  Act  for  and  Bind  Corporations. — See  post, 
"Liability  of  Corporation  for  Acts  of  Officers  and  Agents,  and  Rights  There- 
under,"  IX. 

B.  Of  Directors — 1.  In  General — e.  Contracts  and  Dealings  zvitli  Cor- 
poration—  (7)  Rescission. — That  part  of  an  agreement  between  a  corporation 
<aid  one  of  its  directors  and  stockholders  by  which  there  was  vested  in  the  cor- 
poration the  proceeds  of  the  sale  of  certain  mining  properties  controlled  by  him, 
in  consideration  of  reimbursement  for  his  outlay,  and  the  assumption  by  the 
corporation  of  all  his  obligations  with  respect  to  such  properties,  can  not  be 
deemed  included  by  the  general  terms  of  a  stockholders'  rescinding  resolution, 
where,  from  a  consideration  of  the  proceedings  of  the  meeting  and  the  known 
facts  surrounding  the  parties  at  the  time,  it  is  apparent  that  they  had  in  mind 

960-5a.  Seal  or  vote  of  corporation. —  approving  Washington  Gas  Light  Co.  r. 
New  York,  etc.,  R.  Co.  r.  United  States,  Lansden,  172  U.  S.  534,  544,  43  L.  Ed.  543, 
212  U.   S.  481,   5:5  L.   Ed.  613.  29   S.   Ct.  304,        19   S.   Ct.  296. 

925 


977-998 


OFFICERS  AXD   AGEXTS,  ETC. 


Vol.  VIII. 


only  to  affect  the  director's  right  under  the  agreement  to  retain  for  his  indemnity 
the  custody  of  the  proceeds  of  the  sale.^^^ 

f.  As  Representing  Bond  Holders. — The  directors  of  a  corporation  do  not 
represent  the  bond  holders,  so  as  to  urge  the  invalidity  as  to  them  of  a  statute 
repealing  the  corporate  charter. 5*^*^ 

VIII.   Duties  and  Liabilities  of  Officers   or  Agents. 

A.  In  General — ^.  Compliance  with  Writs  Directed  to  Corporation. — 
A  command  to  the  corporation  is  in  effect  a  command  to  those  who  are  officially 
responsible  for  the  conduct  of  its  affairs.  If  they,  apprised  of  the  writ  directed 
to  the  corporation,  prevent  compliance  or  fail  to  take  appropriate  action  within 
their  power  for  the  performance  of  the  corporate  duty,  they,  no  less  than  the 
corporation  itself,  are  guilty  of  disobedience,  and  may  be  punished  for  con- 
tempt.'^^ 

B.  Of  Directors — 2.  Directors  as  Trustees. — See  note  11. 

IX.  Liability  of  Corporation  for  Acts  of  Officers  and  Agents,  and  Rights 

Thereunder. 

A.  Responsibility  of  Corporation  for  Acts  Generally.— A  corporation  is 
held  responsible  for  acts  not  within  the  agent's  corporate  powers  strictly  con- 
strued, but  which  the  agent  has  assumed  to  perform  for  the  corporation  when 
employing  the  corporate  powers  actually  authorized.-^'' 

C.  For  Torts. — It  is  now  well  established  that,  in  actions  for  tort,  the  cor- 
poration may  be  held  responsible  for  damages  for  the  acts  of  its  agent  within 
the   scope  of  his   employment.^-'' 


977-59a.  Zeckendorf  v.  Steinfeld,  225  U. 
S.  445,  56   L.   Ed.   1156,  32  S.   Ct.  728. 

977-59b.  As  representing  bond  holders. — 
Calder  v.  Attorney  General,  218  U.  S.  591, 
54  L.  Ed.  1163.  31  S.  Ct.  122.  See  ante, 
CONSTITUTIONAL  LAW,  p.  264. 

991-6a.  Compliance  with  writs  directed 
to  corporation. — "Tlic  applicable  principle 
was  thus  stated  by  Chief  Justice  Waite 
in  Commissioners  i'.  Sellew,  99  U.  S.  624, 
627,  25  L.  Ed.  333,  where  a  peremptory 
mandamus  was  directed  against  a  munic- 
ipal board:  'As  the  corporation  can  only 
act  through  its  agents,  the  courts  will 
operate  upon  the  agents  through  the  cor- 
poration. When  a  copy  of  the  writ  which 
has  been  ordered  is  served  upon  the  clerk 
of  the  board,  it  will  be  served  on  the  cor- 
poration, and  be  equivalent  to  a  command 
that  the  persons  who  may  be  members  of 
the  board  shall  do  what  is  required.  If 
the  members  fail  to  obey,  those  guilty  of 
disobedience  may,  if  necessary,  be  pun- 
ished for  the  contempt.  Although  the 
command  is  in  form  to  the  board,  it  may 
be  enforced  against  those  through  whom 
alone  it  can  be  obeyed.  *  *  *  While  the 
board  is  proceeded  against  in  its  corpo- 
rate capacity,  the  individual  members  are 
punished  in  their  natural  capacities  for 
failure  to  do  what  the  law  requires  of  them 
as  the  representatives  of  the  corporation.' 
See,  also,  Leavenworth  v.  Kinney,  154  U. 
S.  642,  24  L.  Ed.  336,  14  S.  Ct.  1198."  Wil- 
son V.  United  States,  221  U.  S.  361,  55  L. 
Ed.  771,  31  S.  Ct.  538. 


993-11.  A  stockholder  and  director  of  a 
corporation,  purchasing  in  his  own  name 
and  that  of  the  company  the  shares  of 
another  stockholder  under  an  agreement 
to  pay  the  purchase  price  from  the  pro- 
ceeds of  the  workings  of  the  company's 
property  or  from  its  sale,  and  having 
the  stock  transferred  on  the  company's 
books  to  him  as  trustee,  holds  the  same  in 
trust  for  the  corporation,  and  must  ac- 
count to  it  for  the  dividends  received  by 
him  upon  such  stock.  Zeckendorf  v. 
Steinfeld,  225  U.  S.  445,  56  L.  Ed.  1156,  32 
S.  Ct.  728. 

995-21a.  Responsibility  for  acts  gener- 
ally.— New  York,  etc.,  R.  Co.  v.  United 
States,  212  U.  S.  481,  53  L.  Ed.  613,  29  S. 
Ct.  304.  approving  Washington  Gas  Light 
Co.  V.  Lansden,  172  U.  S.  534,  43  L.  Ed. 
543,  19  S.   Ct.  296. 

998-32a.  Torts.— New  York,  etc.,  R.  Co. 
V.  United  States,  212  LT.  S.  481,  53  L.  Ed. 
613,  29  S.  Ct.  304,  following  Lake  Shore, 
etc.,  R.  Co.  V.  Prentice,  147  U.  S.  101,  111, 
37  L.  Ed.  97,  13  S.  Ct.  261. 

'"And  this  is  the  rule  when  the  act  is 
done  by  the  agent  in  the  course  of  his  em- 
ployment, although  done  wantonly  or 
recklessly  or  against  the  express  orders 
of  the  principal.  In  such  cases  the  liabil- 
ity is  not  imputed  because  the  principal 
actually  participates  in  the  malice  or  fraud, 
but  because  the  act  is  done  for  the  benefit 
of  the  principal,  while  the  agent  is  acting 
within  the  scope  of  his  emplojmient  in  the 
business   of  the   principal,   and   justice   re- 


926 


Vol.  MIL 


ORDERS  OF  COURT. 


999-1004 


X.    Notice  to  Corporation  Through  Officers  or  Agents. 

Since  a  corporation  is,  in  law,  a  person  or  entity  entirely  distinct  from  its 
stockholders  and  officers,  and  may  have  interests  distinct  from  theirs,  which 
may  also  be  adverse,  there  has  arisen  against  the  presumption  that  their  knowl- 
edge is  its  knowledge  the  counter  presumption  that,  in  transactions  with  it, 
when  their  interest  is  adverse,  their  knowledge  will  not  be  attributed  to  it.  But 
while  this  presumption  should  be  enforced  to  protect  the  corporation,  it  should 
not  be  carried  so  far  as  to  enable  the  corporation  to  become  a  means  of  fraud 
or  a  means  to  evade  its  responsibilities.  A  growing  tendency  is  therefore  ex- 
hibited in  the  courts  to  look  beyond  the  corporate  form  to  the  purpose  of  it, 
and  to  the  officers  who  are  identified  with  that  purpose.--''^ 

OIL. — See  ante,  AIixEs  and  Mixe;rals,  p.  865. 

ONCE  IN  JEOPARDY.— See  ante.  Autrefois.  Acouit  and  Convict,  p. 
161. 

ONUS   PROBANDI. — See  post,  Pre;sumptioxs  and  Burden  of  Proof. 

OPEN  AND  CLOSE.— See  the  title  Open  and  Ceose,  vol.  8,  p.  1002,  and 
references  there  given. 

OPENING  JUDGMENTS.— See  ante.  Judgments  and  Decrees,   p.  807.  . 

OPINION  EVIDENCE.— See  ante,  Expert  And  Opinion  Evidence,  p.  569. 

OPINIONS  OF  COURTS.— See  the  title  Opinions  oe  Courts,  vol.  8,  p. 
1003,  and  references  there  given.  In  addition,  see  ante,  Appeal  and  Error, 
p.  34;    Judgments  and  Decrees,  p.  807. 

OR.— See  note  4. 

ORDERS  OF  COURT.— See  references  under  Orders  of  Court,  vol.  9,  p. 
1006.     In  addition,  see  ante.  Habeas  Corpus,  p.  612. 


quires  that  the  latter  shall  be  held  respon- 
sible for  damages  to  the  individual  who 
has  suffered  by  sucli  conduct.  Lothrop  z\ 
Adams.  133  Mass.  471,  43  Am.  St.  Rep.  528." 
New  York,  etc.,  R.  Co.  v.  United  States, 
212  U.   S.  481,  53  L.  Ed.  613,  29   S.  Ct.   304. 

999-36a.  McCaskill  Co.  v.  United  States, 
216  U.  S.  504,  54  L.  Ed.  590,  30  S.  Ct.  386. 

The  principle  was  enforced  in  the  fed- 
eral stipreme  court  in  Simmons  Creek 
Coal  Co.  v.  Doran,  142  U.  S.  417,  35  L.  Ed. 
1063,  12  S.  Ct.  239.  In  that  case  a  corpo- 
ration claimed  title  to  land  through  a  deed 
of  its  corporators,  one  of  whom  became 
its  president.  Of  the  effect  of  this  the 
court  said:  "Associated  together  to  carry- 
forward a  common  enterprise,  the  knowl- 
edge or  actual  notice  of  all  these  corpo- 
rators and  the  president  was  the  knowl- 
edge or  notice  of  the  company;  and,  if 
constructive  notice  bound  them,  it  bound 
the  company."  McCaskill  v.  United 
States,  216  U.  S.  504,  54  L.  Ed.  590,  30  S. 
Ct.  386. 

Knowledge  of  the  president  of  a  corpo- 
ration of  the  fraud  committed  by  an  en- 
tryman  in  procuring  and  commuting  a 
homestead  entry  is  imputed  to  the  corpo- 
ration, so  as  to  deprive  it  of  the  position 
of  a  bona  tide  purchaser  under  a  convey- 
ance from  the  president,  who  had  taken  a 
deed  of  the  property  from  the  patentee, 
where  the  president  was  one  of  the  incor- 


porators, and,  together  with  the  secretary, 
owned  a  large  majority  of  the  capital 
stock,  and  was  intrusted  with  the  entire 
management  of  the  corporate  business, 
since  his  interest  and  that  of  the  corpora- 
tion are  identical.  McCaskill  Co.  v.  United 
States,  216  U.  S.  504,  54  L.  Ed.  590.  30  S. 
Ct.  386. 

1004-4.  Fraudulent  papers  in  connection 
with  entry  of  coal  lands. — ^^laking  and 
presenting  false,  fictitious,  and  fraudulent 
papers  in  connection  with  an  entry  of  coal 
lands  is  not  made  criminal  by  U.  S.  Rev. 
Stat.,  §  4746,  U  S.  Comp.  Stat.  1901,  p. 
3279,  as  amended  by  the  Act  of  July  7, 
1898  (30  Stat,  at  L.  718.  chap.  578,  U.  S. 
Comp.  Stat.  1901,  p.  3279),  because  such 
amendatory  statute,  in  repeating  the  orig- 
inal words,  "concerning  any  claim  for 
pension  or  payment  thereof,  or  pertaining 
to  any  other  matter  within  the  jurisdiction 
of  the  commissioner  of  pensions,''  adds 
the  words  "or  of  the  secretary  of  the  in- 
terior," since  such  section  as  originally 
acted,  related  exclusively  to  pension  or 
bounty  land  claims,  and  every  enumeration 
or  description  of  new  acts  or  papers,  in 
addition  to  those  embraced  in  the  section 
prior  to  the  amendment,  alone  concerns 
pension  or  bounty  land  claims.  United 
States  z:  Keitel,  211  U.  S.  370,  53  L.  Ed. 
230,  29  S.  Ct.  123.  See  post,  PUBLIC 
LANDS. 


92'; 


1012-1014 


OTHER. 


Vol.  Mil. 


ORDINANCES. 
VII.  Operation  and  Effect,  928. 

CROSS   REFERENCES. 

See  the  title  Ordinances,  vol.  8,  p.  1009,  and  references  there  given. 

VII.    Operation  and  Effect. 

See  note  19. 

ORDINARY   CARE.— See  ante,  Negugence,  p.  920. 
ORDINARY  NEGLIGENCE.— See  ante.  Negligence,  p.  920. 
ORE. — See  ante.  Mixes  and  Minerals,  p.  865. 
OREGON  DONATION  ACT.— See  post.  Public  Lands. 
ORGANIC  LAW.— See  ante.  Constitutional  Law,  p.  264. 
ORGANIZED    LABOR.— See    ante.    Monopolies    and    Corporate    Trusts, 
p.  874. 

ORIGINAL.— See  note  4. 

ORIGINAL  BILL.— See  ante.  Equity,  p.  550. 

ORIGINAL   JURISDICTION.— See  ante.   Courts,  p.   398. 

OSTEOPATH.— See    note    la. 

OTHER.— See  note  3. 


1012-19.  An  act  of  state. — An  ordinance 
which  would  be  regarded  as  in  effect  a 
statute  of  the  state,  adopted  under  a  power 
granted  by  the  state  legislature,  is  an  act 
of  the  state  within  the  fourteenth  amend- 
ment. North  Ainerican  Cold  Storage  Co. 
V.  Chicago,  211  U.  S.  306,  53  L.  Ed.  195,  29 
S.  Ct.  101,  following  New  Orleans  Water- 
works Co.  V.  Louisiana  Sugar  Refin.  Co., 
125  U.  S.  18,  31,  31  L.  Ed.  607,  8  S.  Ct.  741. 

1013-4.  Original  package. — The  use  of 
the  words  "original  packages"  in  Kansas 
Laws  1907,  chap.  250,  making  it  unlawful 
to  sell,  offer  for  sale,  or  deliver  black 
powder  for  use  in  any  coal  mines  in  the 
state  except  in  original  sealed  packages 
containing  12^2  pounds  of  powder,  does 
not  necessitate  the  conclusion  that  the 
statute  prohibits  the  importation  of  black 
powder  from  other  states  in  other  than 
12^  pound  packages.     Williams  v.  Walsh, 

222  U.  S.  415,  56  L.  Ed.  253,  32  S.  Ct.  137. 
See  ante,  INTERSTATE  AND  FOR- 
EIGN COMMERCE,  p.  689;  post,  PO- 
LICE POWER. 

1014-la.  Osteopath. — The  ruling  of  the 
Texas  state  court  that  osteopaths  are  per- 
sons practicing  medicine,  within  the  inean- 
ing  of  Texas  Laws  1907,  chap.  123,  provid- 
ing for  licensing  and  registering  medical 
practitioners,  will  be  followed  by  the 
federal  supreme  court  in  determining  the 
constitutionality  of  such  statute  on  writ  of 
error  to  the  state  court.     Collins  :'.  Texas, 

223  U.  S.  288,  56  L.  Ed.  439,  32  S.  Ct.  286. 
See  post,  PHYSICIANS  AND  SUR- 
GEONS. 

"An    osteopath    professes — the    plaintiff 


in  error  professes,  as  we  understand  it — 
to  help  certain  ailments  by  scientific  ma- 
nipulation affecting  the  nerve  centers.  It 
is  intelligible,  therefore,  that  the  state 
should  require  of  him  a  scientific  training. 
Dent  V.  West  Virginia,  129  U.  S.  114,  32 
L.  Ed.  623,  9  S.  Ct.  231;  Watson  v.  Marv- 
land,  218  U.  S.  173,  54  L.  Ed.  987,  30  S.  Ct. 
644.  He,  like  others,  must  begin  by  a 
diagnosis.  It  is  no  answer  to  say  that  in 
many  instances  the  diagnosis  is  easy — 
that  a  main  knows  it  when  he  has  a  cold 
or  a  toothache.  For  a  general  practice 
science  is  needed.  An  osteopath  under- 
takes to  be  something  more  than  a  nurse 
or  a  masseur,  and  the  difference  rests  pre- 
cisely in  a  claim  to  greater  science,  which 
the  state  requires  him  to  prove.  The 
same  considerations  that  justify  includ- 
ing him  justify  excluding  the  lower  grades 
from  the  law."  Collins  v.  Texas,  223  U. 
S.  288,  56  L.  Ed.  439,  32  S.  Ct.  286. 

1014-3.  Other  country. — It  must  be  pre- 
sumed that  the  words  "other  country"  in 
ihe  Cuban  treaty,  providing  that  the  rates 
therein  granted  shall  continue  "preferen- 
tial in  respect  to  all  like  imports  from 
other  countries,"  were  used  according  to 
their  known  and  established  interpreta- 
tions, and  did  not  refer  to  charges  on  ship- 
ments from  territory  belonging  to  the 
United  States.  Faber  v.  United  States, 
221  U.  S.  649,  55  L.  Ed.  897,  31  S.  Ct.  659. 
See  post,  REVENUE  LAWS;  TREA- 
TIES. 

Other  coloring  matter. — In  §  2  of  the 
Act  of  August  2,  1886,  defining  oleomar- 
garine,   tlie    use    of    the    term  "and    other 


928 


Vol.  VIII.  OTHBRIVISE. 

OTHERWISE.— See  note  2. 


1015 


coloring  matter"  was  for  an  obvious  pur- 
pose. It  was  to  prevent  excluding  from 
the  operation  of  the  statute  anything  in 
its  nature  oleomargarine  (that  is,  to  ex- 
empt from  the  oil  tax  anything  in  its  na- 
ture oleomargarine)  by  the  addition  of 
the  substance  not  in  reality  an  ingredient 
but  serving  substantially  only  the  purpose 
of  coloring  the  product  to  cause  it  to  look 
like  butter.  Moxley  v.  Hertz,  216  U.  S. 
344,  54  L.  Ed.  510,  30  S.  Ct.  305,  citing  the 
decision  of  Cliff  v.  United  States,  195  U. 
S.  159,  49  L.  Ed.  139.  See  post,  POLICE 
POWER;  REVENUE  LAWS.  And  see 
references  under  FOODS  AXD  DRUGS, 
ante,  p.  584. 

Other  explosives. — Blasting  powder  is 
included  in  the  words  "or  other  explo- 
sives," as  used  in  the  condition  of  an  in- 
surance policy,  prohibiting  the  keeping, 
use  or  allowance  of  certain  designated  ex- 
plosives and  inflammable  substances,  "or 
other  explosives."  Penman  v.  St.  Paul 
Fire,  etc.,  Ins.  Co.,  216  U.  S.  311,  54  L.  Ed. 
493,  30  S.  Ct.  312.  See  ante,  INSUR- 
ANCE, p.  674. 

Other  person. — All  noncombatants  ex- 
cept wives  and  children  or  military  and 
civil  officers  were  embraced  in  the  words 
"other  persons"  in  a  contract  with  the 
United  States  for  transportation  to  Spain 
at  the  cabin  rate  of  Spanish  military  and 
civil  officers  in  the  Philippine  Islands  and 
at  the  steerage  of  such  other  persons  that 
might  be  designated  by  the  secretary  of 
war.  Ceballos  &  Co.  v.  United  States,  214 
U.  S.  47,  53  L.  Ed.  904,  29  S.  Ct.  583.  See 
post,  UNITED  STATES. 

An  employee  in  the  customs  service  of 
the  United  States  who  makes  and  returns 
false  weights  in  connection  with  an  entry 
of  imported  merchandise  is  comprehended 
by  the  words  "other  person"  in  the  pro- 
visions of  the  Customs  Administration 
Act  of  June  10,  1890,  §  9,  for  the  forfeiture 
of  goods  or  their  value  where  "any  owner, 
importer,  consignee,  agent,  or  other  per- 
son" shall  make  an  entry  by  means  of 
false  and  fraudulent  practice  or  shall  be 
guilty  of  any  unlawful  act  or  omission 
whereby  the  United  States  is  deprived  of 
the  lawful  duties.  The  rule  of  ejusdem 
generis,  that  where  particular  words  of 
description  are  followed  by  general  terms, 
the  latter  will  be  regarded  as  referring  to 
things  of  a  like  class  with  those  particu- 
larly described,  is  only  a  rule  of  construc- 
tion to  aid  in  arriving  at  the  real  legisla- 
tive intent.  It  is  not  a  cast-iron  rule,  and 
does  not  override  all  of  the  rules  of  con- 
struction and  it  is  never  applied  to  defeat 
the  general  purpose  of  the  statute,  as  that 
purpose  may  be  gathered  from  the  whole 
instrument.  Doubtless  it  is  made  to  pre- 
serve a  meaning  for  the  particular  words. 
It  is  not  intended  to  render  meaningless 


the  general  words.  Therefore,  where  the 
particular  words  exhaust  the  class,  the 
general  words  must  be  construed  as  em- 
bracing something  outside  of  that  class. 
United  States  v.  Mescall,  215  U.  S.  26,  54 
L.  Ed.  77,  30  S.  Ct.  19.  See  post,  REVE- 
NUE LAWS. 

Other  place. — As  to  other  place  in  the 
act  giving  the  federal  courts  jurisdiction 
over  crimes  committed  in  forts,  arsenals, 
dockyards,  magazines,  or  in  any  other 
places,  in  the  sole  and  exclusive  jurisdic- 
tion of  the  United  States,  see  ante,  CRIM- 
INAL LAW,  p.  434. 

Other  than  coastwise. — The  proviso  in 
§  51  of  the  Act  of  1871  (now  the  last  sen- 
tence of  Rev.  Stat.,  §  4444),  "that  nothing 
in  this  act  shall  be  construed  to  annul  or 
affect  any  regulation  established  by  the 
laws  of  any  state  requiring  vessels  enter- 
ing or  leaving  a  port  in  any  such  state, 
other  than  coastwise  steam  vessels,  to 
lake  a  pilot  duly  licensed,  or  authorized 
by  the  laws  of  such  state,  or  of  a  state 
situate  upon  the  waters  of  such  state," 
manifestly  did  not  enlarge  the  scope  of 
the  requirement  as  to  federal  pilotage  con- 
tained in  the  preceding  portion  of  the  sec- 
tion. The  words  "other  than  coastwise 
steam  vessels"  did  not  mean  that  the  state 
could  not  require  port  pilots  for  coast- 
wise seagoing  steam  vessels  sailing  under 
register.  The  words  "other  than  coast- 
wise steam  vessels"  must  be  deemed  to  re- 
fer to  those  "not  sailing  under  register."  to 
which  the  requirement  of  federal  pilots 
applied.  The  same  meaning  must  be  as- 
cribed to  this  clause  as  it  now  appears  in 
§  4444  of  the  revised  statutes,  taken  as  it 
must  be  in  connection  with  §  4401.  An- 
derson V.  Pacific,  etc.,  Steamship  Co.,  225 
U.  S.  187,  202,  5G  L.  Ed.  1047,  32  S.  Ct.  626. 
See  post,  PILOTS. 

1015-2.  Or  otherwise — Appropriation  of 
securities  by  bank  to  secure  loan. — Notes 
sent  to  a  bank  bj^  its  correspondent  for 
discount  and  credit,  which  such  bank  re- 
fuses to  rediscount,  can  not  be  held  by  it 
as  collateral  to  the  payment  of  a  loan 
voluntarily  made  to  cover  an  overdraft, 
liy  virtue  of  an  agreement  embodied  in  a 
printed  form  prepared  by  such  bank,  and 
in  general  use  by  it,  which  gives  the  said 
l)ank  the  power  to  appropriate  any  securi- 
ties "deposited  with  said  bank  or  which 
may  hereafter  be  deposited  with  the  said 
bank,  or  which  may  be  in  any  wise  in  said 
l)ank  or  under  its  control,  as  collateral  se- 
curity for  loans  or  advances  already  made 
or  hereafter  to  be  made  to  or  for  account 
of  the  undersigned,  by  said  bank,  or  other- 
wise." The  provision  quoted  must  be 
considered  as  limitative  in  its  character 
and  as  controlling,  therefore,  the  previous 
stipulations,  thus  confining  the  right  to 
apply  securities  in  the  possession  of  the 


12  U  S  Enc— 59 


929 


1016-8  PARENT  AND  CHILD.  Vol.  IX. 

OUT.— See  note  2. 

OUTLAWRY.— See  the  title  Outlawry,  vol.  8,  p.  1017. 
OVERFLOWED  LANDS.— See  post,  Public  Lands. 

OYSTERS. — See  ante,  Constitutional  Law,  p.  264;  Due  Proce;ss  of  Law, 
p.  475 ;  Fish  and  Fisheries,  p.  583 ;  post,  Police  Power. 
PALM  OIL. — See  ante.  Artificial  Coloration,  p.   152. 
PANEL.— See  ante.  Jury,  p.  813. 


PARDON. 

II.  Pardoning  Power,  930. 

A.  By  Whom  Exercised,  930. 

1.  The  President,  930. 
C.  Nature  and  Extent  of  Power,  930. 

3.  Commutation  of  Sentence,  930. 

V.  Operation  and  Effect,  930. 

A.  Time  of  Taking  Effect,  930. 
F.  Commutation   of    Sentence,  930. 

CROSS   REFERENCES. 

See  the  title  Pardon,  vol.  9,  p.  1,  and  references  there  given. 

II.    Pardoning  Power. 

A.     By  Whom   Exercised — 1.    The   President. — See  note    12. 
C.    Nature  and  Extent  of  Power — 3.    Commutation  of  Sentence. — See 
note  28. 

V.    Operation  and  Effect. 

A.  Time  of  Taking  Effect. — A  pardon  is  not  effective  until  delivered  to^ 
the  prisoner  or  to  some  one  for  him,  being  until  that  time  subject  to  withdrawal 
and  being  merely  a  promise  of  pardon. ^^^ 

F.  Commutation  of  Sentence. — Where  an  original  sentence  is  lawful,  ex- 
ecution of  the  commuted  sentence  is  not  affected  because  the  statutes  do  not 
permit  courts  in  the  first  instance  to  inflict  so  short  imprisonment.^-^ 

PARENT  AND  CHILD.— See  the  title  Parent  and  Child,  vol.  9,  p.  9,  and 
references  there  given. 

bank  to  such  as  had  come  into  its  posses-  4-12.      Power    of     president. — Ex    parte 

sion  or  control  for  the  purposes  described.  Harlan,    180    Fed.    119.      Decrees    affirmed 

The  contention  that  the  words  "or  other-  Harlan  -•.   McGourin,  218  U.  S.  442,  54  L. 

wise"   deprived   the   provision   in   question  Ed.  1101,  31  S.  Ct.  44. 

of  its  limitative   effect   is   clearly  without  5-28.     Commutation    of    sentence. — The 

merit,   since   that  view  can   not  be   unheld  constitutional  prerogative  of  the  president 

without  causing  the  words  in  question  to  to   grant    reprieves    and   pardons    mcludes 

dominate  and  destroy  the  meaning  of  the  the  power  to  commute  punishments.      ( C. 

agreement   as   derived   from   the   consider-  C.  1909),  Ex  parte  Harlan,  ISO  F.  119.     De- 

ation  of  all  its  provisions.     Hanover  Nat.  crees    affirmed    Harlan  i'.    INTcGourin,    218 

Bank  v.  Suddath,  215  U.  S.    110,  54  L.    Ed.  U.  S.  442,  54  L.  Ed.  1101.  31  S.  Ct.  44. 

115,  30  S.  Ct.  58.     See  ante,  BANKS  AND  6-38a.     Time  of  taking  effect.— Ex  parte 

BANKING,  p.  184.  Harlan,    180    Fed.    119.      Decrees    affirmed' 

1016-2.     Out  of  the  jurisdiction   of  any  Harlan  v.  McGourin,  218  U.  S.  442,  54  L. 

particular    state. — As    to    the    meaning    of  Ed.  1101,  31  S.  Ct.  44. 

the    term  as  used    in  the    revised    statutes  8-52a.      Commutation    of    sentence. — Ex 

providing  for  punishment  of  certain  crimes  parte    Harlan,   180   Fed.   119.      Decrees   af- 

by     the    United    States     government,    see  firmed  Harlan  v.  McGourin,  218  U.  S.  442,. 

ante,  CRIMINAL  LAW,  p.  434.  54  L.  Ed.  1101,  31  S.  Ct.  44. 

930 


Vol.  IX.  PAROL  EVIDEXCB.  19-27 

PARI  DELICTO. — See    ante,    Fraud    and    Deceit,  p.  597;  Illegal  Con- 
tracts, p.  622. 

PARKS. — See  post,  Public  Lands. 


PAROL  EVIDENCE. 
IV.  Limitations  of  and  Exceptions  to  Rule,  931. 
A.  In  General,  931. 

D>4.    Character  of   Contract  \A'here  Rights  of  Third  Parties  Are  Con- 
cerned, 931. 
G.  Subject  Matter,  931. 
H.  Construction  of  Particular  Terms.  931. 

CROSS   REFERENCES. 

See  the  title  Parol  Evidence,  vol.  9,  p.  12,  and  references  there  given. 

IV.    Limitations  of  and  Exceptions  to  Rule. 

A.    In  General. — See  note  o^. 

D^.  Character  of  Contract  Where  Rights  of  Third  Parties  Are  Con- 
cerned.— The  real  character  of  a  contract  between  a  corporation  and  a  cred- 
itor in  the  form  of  a  conditional  sale  from  the  latter  to  the  former  may  be 
shown  in  a  case  in  Porto  Rico  which  presents  not  only  a  controversy  between 
the  parties  to  the  contract,  but  its  effect  and  operation  upon  the  creditors  of 
the  corporation,  especially  where  such  contract  was  never  inscribed  upon  the 
public  records  so  as  to  bind  third  persons.^*^^ 

G.  Subject  Matter. — See  note  88.  Previous  and  contemporan,'  transac- 
tions and  facts  may  be  very  properly  taken  into  consideration  to  ascertain  the 
subject  matter  of  a  contract. ^"^^ 

H.  Construction  of  Particular  Terms. — Previous  and  contemporary  trans- 
actions and  facts  may  be  taken  into  consideration  to  ascertain  the  sense  in  which 
the  parties  may  have  used  particular  terms. ^^^^  It  is  not  for  the  purpose  of 
making  a  contract  for  the  parties,  but  to  understand  what  contract  was  ac- 
tually made,  that,  in  cases  of  doubt  as  to  the  meaning  of  language  actually 
used,  prior  negotiations  may  sometimes  be  referred  to.^^'' 

19-38.     A  contract  to  grind  all  the  sugar  transactions   and   facts. — United   States  v. 

cane  raised  by  a  lessee  upon  certain  speci-  Bethlehem  Steel  Co.,  205  U.  S.  105,  51  L. 

fied  plantations  leased  to  him  for  a  certain  Ed.    731,    27  S.    Ct.    450,    reversing  41    Ct. 

number  of  grinding  seasons  is  a  contract  CI.  19. 

to  grind  in  the  grinding  season,  and  parol  27-96a.       Previous     and     contemporary 

evidence  is  admissible  to  show  what  that  transactions   and   facts. — United    States   v. 

season  is.     Porto  Rico  Sugar  Co.  v.  Lo-  Bethlehem  Steel  Co.,  205  U.  S.  105,  51  L. 

renzo,  222  U.  S.  481,  56  L.  Ed.  277,  32  S.  Ct.  Ed.    731,    27    S.    Ct.    450,    reversing  41    Ct. 

133.  CI.  19. 

23-66a.      Character    of     contract    where  Recourse  may  be  had  to  the  prior  nego- 

rights    of    third    parties  are    concerned. —  tiations   between   the   parties,   where   it  is 

Valdes  v.  Central  Altagracia,  225  U.  S.  58,  doubtful  whether  a  penalty   or  liquidated 

56  L.  Ed.  980,  32  S.  Ct.  664.  damages    were    meant    by  a    clause  in    the 

26-88.     Extrinsic  evidence  admissible  to  written  contract  relating  to  the  payment 

identify    subject    matter. — Parol    evidence  of  damages  for  its  nonfulfillment.     Judg- 

of    circumstances    surrounding    a   sale    of  ment,      Bethlehem     Steel    Co.    v.     United 

real   property   was   admissible    to   identify  States     (1905).    41      Ct.    CI.    19,    reversed, 

the  premises   and  to  remove   the   ambigu-  United  States  v.  Bethlehem  Steel  Co.,  205 

ity  created  by  the  use  of  the  word  "about."'  U.  S.  105,  51   L.  Ed.  1?>\.  27  S.  Ct.  450. 

Judgment    (1907),    29    App.  D.  C.  490,    af-  27-96b.     Purpose  of  admission. — United 

firmed.     Harten  v.  Loffler,  212  U.  S.  397,  53  States    v.  Bethlehem    Steel    Co..  205  U.    S. 

L.   Ed.  568,  29   S.  Ct.  351.  105.  51   L.  Ed.  731,  27  S.  Ct.  450,  reversing 

26-90a.       Previous      and     contemporary  41  Ct.  CI.  19. 

931 


37-64 


PARTIES. 


Vol.  IX. 


PARTIES. 

III.  Parties  in  Equity,  932. 

A.  Rules  Applicable  to  Parties  Generally,  932. 

1.  Interest  as  Criterion,  932. 

a.  In  General,  932. 

b.  Rule   Subject  to  Qualifications  and  Exceptions,  932. 

VI.  Intervention,  932. 

B.  Who  May  Intervene,  932. 

2.  Interest  Entitling  to  Intervene,  932. 

C.  Time   for  Exercising  Right  to   Intervene,  932. 

D.  Procedure,  932. 

1.  Manner  of  Intervening,  932. 

CROSS   REFERENCES. 

See  the  title  Parties^  vol.  9,  p.  34,  and  references  there  given. 

III.    Parties  in  Equity. 

A.  Rules  Applicable  to  Parties  Generally — 1.    Interest  as  Criterion — 
a.   In  General — See  note  6. 

b.    Rule  Subject  to  Qualifications  and  Exceptions. — See  note  19. 

VI.   Intervention. 

B.  Who  May  Intervene — 2.   Interest  Entitling  to  Intervene. — See  note 


53. 


C.  Time  for  Exercising  Right  to  Intervene. — See  note  54. 

D.  Procedure — 1.    AIanner  of  Intervening. — See  note  57. 


37-6.  All  persons  materially  interested 
to  be  made  parties. — Garzot  z'.  Rnbio.  209 
U.   S.  283,  52  L.   Ed.  794,  28   S.  Ct.  548. 

40-19.  Act  of  February  28,  1839.— A 
nonresident  heir  can  not  be  regarded  as 
such  an  indispensable  partj'  defendant 
that  his  absence  will  defeat  the  jurisdic- 
tion of  a  federal  court  of  chancer}^  over 
a  suit  brought  by  an  heir  against  the  ex- 
ecutor and  other  heirs,  to  determine  her 
interest  in  an  alleged  lapsed  legacy  and 
the  consequent  increase  in  the  residuary 
estate,  in  view  of  the  provisions  of  Rev. 
St.  U.  S.,  §  737  (U.  S.  Comp.  St.  1901,  p. 
587),  and  of  equity  rule  47,  which  permit 
the  court  to  proceed  with  the  trial  and  ad- 
judication of  a  suit  as  between  the  parties 
who  are  properly  before  it,  and  preserve 
the  rights  of  parties  not  voluntarily  ap- 
pearing, providing  their  rights  are  not 
prejudiced  by  the  decree  to  be  rendered. 
Waterman  ?'.  Canal-Louisiana  Bank,  etc., 
Co.,  215  U.  S.  33,  54  L.  Ed.  80,  30  S.  Ct.  10. 

63-53.  Persons  entitled  to  intervene. — A 
federal  circuit  court  which  had  acquired 
jurisdiction  over  a  street  railway  company, 
and  has  appointed  receivers  for  it,  may,  in 
its  discretion,  permit  another  street  rail' 
way  company  to  intervene,  making  it  a 
part}''  defendant,  and  extending  the  re- 
ceivership to  it,  where  the  two  companies 


sustained,  respectively,  the  relation  of  les- 
see and  lessor,  and  their  interests  are  in- 
extricably bound  together.  In  re  Metro- 
politan R.  Receivership,  208  U.  S.  90,  52 
L.  Ed.  403,  28  S.  Ct.  219. 

64-54.  Right  to  be  claimed  within  rea- 
sonable time. — The  right  of  the  adminis- 
tratrix of  the  surety  on  a  forfeited  bail 
bond,  asserting  an  express  trust  in  the 
surety's  favor  in  certain  securities  held 
by  a  third  person,  to  intervene  in  a  suit 
by  the  United  States  to  charge  the  holder 
of  the  securities  with  a  trust  in  favor  of 
the  government,  is  not  barred  by  laches 
because  the  petition  in  intervention  was 
not  filed  until  the  evidence  in  the  suit 
had  been  taken  and  it  was  ready  for  final 
hearing,  where  such  petition  was  filed 
shortly  after  judgment  had  been  recov- 
ered in  a  contested  suit  on  the  bond. 
Leary  v.  United  States,  224  U.  S.  567,  56 
L.    Ed.   889,   32    S.    Ct.   599. 

64-57.  By  complaint  or  petition. — Alle- 
gations in  a  petition  in  intervention  filed 
by  the  administratrix  of  the  surety  on  a 
forfeited  bail  bond,  that  the  decedent  be- 
came such  surety  "upon  the  understand- 
ing and  condition"  that  certain  securities 
held  in  trust  or  on  deposit  bj^  a  third 
person  should  remain  in  the  latter's  hands 
as  security  and  indemnity  for  signing  the 


932 


Vol.  IX.  PARTNERSHIP.  80-81 

PARTIES   BY  REPRESENTATION.— See    ante,    Parties,    p.    932;    post. 
Res  Adjudicata. 

_  PARTITION.— See  the  title  Partition,  vol.  9,  p.  66,  and  references  there 
given.  In  addition,  see  ante.  Limitation  of  Actions  and  Adverse  Posses- 
sion, p.  828. 


PARTNERSHIP. 

III.  What  Constitutes,  933. 

B.  Participation  in  Profits  as  Test,  933. 
1.  In  General,  933. 

IV.  Relations  Inter  Se,  934. 

F.  Accounting  and   Settlement,  934. 

3.  Interest,  934. 

G.  Lien  of  Partner,  934. 

V.  Relation  to  Third  Persons,  935. 

H.  Rights  and  Priorities  of  Creditors,  935. 
1.  In  General,  935. 

IX.  Pleading  and  Practice,  935. 

J.  Limitation  and  Laches,  935. 

CROSS  REFERENCES. 

See  the  title  Partnership,  vol.  9,  p.  7h,  and  references  there  given. 

III.     What    Constitutes. 

B.  Participation  in  Profits  as  Test — 1.  In  General. — Participation  in 
Profits. — See  note   14. 

Amount  of  Profits  to  Which  Each  Partner  Entitled — Extra  Compensa- 
tion.— Services  rendered  after  dissolution  of  the  firm  by  a  partner  for  com- 
pensation for  claims  are  not  favored.  They  lead  to  efiforts  to  prove  a  disparity 
between  the  partners,  when  the  law  implies  equality.  They  necessitate  a  bal- 
ancing of  the  value  of  the  work  of  each  in  securing  the  business  and  earning 
the  profits,  as  v/ell  as  a  comparison  of  the  time  they  may  spend  on  the  matters 
under  consideration. ^^^  To  this  general  rule  there  are  exceptions,  where,  un- 
bend, sufficiently  show  a  right  to  inter-  Cummings,  222  U.  S.  262,  269,  56  L.  Ed. 
vene    in   a    suit    by    the    United    States    to       192,  32  S.  Ct.  83. 

charge  the  holder  of  such  securities  with  The    surviving   member     of     a     special 

a  trust  in  favor  of  the  government,  as  partnership  between  lawyers  for  the 
against  the  objections  that  the  petition  prosecution  of  a  number  of  claims  against 
does  not  negative  the  surety's  ignorance  the  United  States  in  congress  and  be- 
of  the  facts  claimed  to  raise  the  latter  fore  the  court  of  claims,  the  compensa- 
trust,  and  that,  so  far  as  appears,  the  tion  for  which  service  was  contingent  on 
asserted  right  of  intervention  rests  upon  success,  and  was  to  be  paid  in  solido  and 
an  implied  contract.  Leary  v.  United  divided  between  the  partners  in  the  same 
States,  224  U.  S.  567,  56  L.  Ed.  889,  32  S.  manner,  can  not  claim,  on  an  accounting, 
Ct.  599.  to   be   entitled   to   compensation   for   such 

80-14.  A  partnership  may  be  inferred  services  rendered  by  him  after  the  disso- 
from  the  fact  that  one  man  furnishes  lution,  in  the  prosecution  and  collection 
capital  and  another  his  personal  service  of  the  claims,  as  he  had  agreed  in  the 
in  disposing  of  it,  the  latter  to  be  in-  partnership  agreement  to  render.  (1911) 
terested  in  the  profits  if  any,  but  not  to  Consaul  v.  Cummings,  222  U.  S.  262,  56 
be  a  debtor  of  the  former.  ^Manson  v.  L.  Ed.  192,  32  S.  Ct.  83.  affirming  decree 
Williams,  213  U.  S.  453,  456.  53  L.  Ed.  (1909).  33  App.  D.  C.  132. 
869,  29  S.  Ct.  519.  The  interest  of  the  estate  of  a  deceased 

81-18a.  Profits  to  which  partner  en-  member  of  a  special  partnership  between 
titled — Extra     compensation. — Consaul    v.       lawyers    for   the   prosecution     of     certain 

933 


81-91 


PARTNERSHIP. 


Vol.  IX. 


der  peculiar  circumstances,  the  principles  of  equity  entitle  the  survivor  to  com- 
pensation.^^"^ 

IV.    Relations  Inter  Se. 

F.  Accounting  and  Settlement — 3.  Interest. — The  surviving  partner  is 
properly  charged  with  interest  on  the  balance  found,  on  an  accounting,  to  be 
due  to  the  personal  representatives  of  the  deceased  partner,  from  the  date 
when  the  bill  was  filed,  where,  in  response  to  a  demand  for  settlement,  he  at 
first  promised  to  make  a  statement,  and  then  contended,  without  substantial 
support,  that  the  partnership  was  dissolved  because  the  deceased  partner  had 
transferred  his  interest  in  the  fees,  and  also  resisted  the  accounting,  and  failed 
to  produce  the  proper  books,  vouchers,  and  statements,  especially,  where  he 
did  not  except  to  this  method  of  calculating  interest,  but,  on  the  contrary, 
obtained  a  ruling  that,  on  the  same  basis,  he  should  be  allowed  interest  on  ad- 
vances made  by  him  to  the  deceased  partner.^"^ 

G.  Lien  of  Partner. — A  partner  has  a  lien  on  the  firm's  assets  for  the 
repayment  of  his  advances  to  the  firm.^^  A  lien  in  favor  of  the  partner  con- 
tributing the  entire  capital  and  necessary  advances  to  a  land  partnership  is 
created  by  a  provision  of  the  partnership  agreement  for  the  repayment  of  the 
whole  sum  advanced  by  him  for  the  venture  before  any  division  of  profits  is 
declared,  although  some  earlier  provisions  in  the  agreement  treat  the  advance 
of  a  part  of  the  capital  as  a  loan  to  the  other  partner.'^'^"' 


claims  against  the  United  States  in  con- 
gress and  before  the  court  of  claims,  in 
the  fees  earned  under  the  partnership 
agreement,  can  not  be  diminished  on  tl.e 
theory  that  the  contract  of  employment 
by  the  clients  was  revoked  by  his  in- 
sanity or  death,  where  they  made  no  suc'i 
objection,  and  apparently  acquiesced  in 
the  arrangement  by  which  the  claims 
were  put  in  the  hands  of  the  other  part- 
ner. Consaul  v.  Cummings,  222  U.  S.  262, 
56   L.    Ed.    192,   32   S.    Ct.   83. 

"Each  partner  is  bound  to  devote  him- 
self to  the  firm's  business,  and  there  is 
no  implied  obligation  that  for  perform- 
ing this  duty  he  should  be  paid  more 
than  his  proportionate  share  of  the  gains. 
Neglect  by  one  to  do  his  part  may  be  of 
such  character  as  to  justify  a  dissolution. 
But  as  long  as  the  firm  continues,  there 
is  usually  no  deduction  because  one  part- 
ner has  not  been  as  active  as  the  other. 
The  same  is  true  where  death  prevents 
either  of  the  partners  from  performing 
his  contract.  The  law  did  not  permit  him 
to  appoint  a  substitute,  nor  can  his  per- 
sonal representative,  no  matter  how  well 
qualified,  assist  in  winding  up  the  afifairs 
of  the  firm.  Whether  that  be  considered 
a  right  or  duty,  it  is,  in  either  event, 
cast  on  the  survivor.  In  performing  it 
he  only  carries  out  an  obligation  implied 
in  the  partnership  relation,  and  is  there- 
fore entitled  to  no  com_pensation  for  thus 
doing  what  he  was  bound  to  do  and  what 
would  have  been  imposed  on  the  other 
had  the  order  of  their  death  been  dif- 
ferent. To  allow  the  survivor  compensa- 
tion  wherever   he   continues   the    business 


would  be  to  offer  an  inducement  to  delay 
the  settlement  which  ought  to  be  made 
as  soon  as  possible."  Consaul  v.  Cum- 
mings, 222  U.  S.  262,  269,  56  L.  Ed.  192, 
32  S.   Ct.  83. 

81-18b.  Exceptions  to  rule. — Thus,  where 
by  authority  of  law,  or  under  a  power  in 
the  will,  the  personal  representative  con- 
sents that  the  business  may  be  continued 
by  the  survivor,  the  estate  must  pay  for 
such  additional  services.  Or,  where  with- 
out such  consent,  and  at  his  own  risk, 
the  survivor  continues  the  business  and 
makes  a  profit,  the  estate  is  bound  to  al- 
low reasonable  compensation,  if  it  elects 
to  share  in  the  gains  thus  made.  So, 
where  a  member  of  a  firm,  by  his  volun- 
tary act,  dissolved  the  partnership,  the 
partner  who  continued  the  business  was 
allowed  compensation  for  performing- 
services  in  which  he  had  the  right  to  have 
expected  the  continued  assistance  of  the 
other.  Extra  compensation  has  also  been 
allowed  in  a  few  cases  where,  in  order 
to  realize  on  the  assets,  it  was  absolutely 
necessary  for  the  survivor  to  continue 
the  business  beyond  the  reasonable  tine 
allowed  for  winding  up  its  affairs.  Con- 
saul z>.  Cummings,  222  U.  S.  262,  270,  56 
L.  Ed.  192,  32  S.  Ct.  83. 

91-47a.  Interest. — Consaul  v.  Cummings, 
222  U.   S.  262,  56  L.   Ed.  192,  32  S.  Ct.  83. 

91-48.  Lien  of  partner. — Smith  v.  Rainey, 
209  U.  S.  53,  56,  52  L.  Ed.  679.  28  S.  Ct. 
474. 

■  91-50a.  Judgment  (Ariz.  1906),  83  P. 
463,  reversed.  Smith  v.  Rainey,  209  U. 
S.  53.  52   L.   Ed.  679,  28  S.  Ct.  474. 


934 


Vol.  IX.  PASTURAGE.  105-134 

V.    Relation  to  Third  Persons. 

H.  Rights  and  Priorities  of  Creditors — 1.  In  General. — Under  the 
Louisiana  law  partnership  creditors  and  the  individual  creditors  have  a  con- 
current right  to  payment  out  of  the  individual  estates. ^°^ 

IX.    Pleading  and  Practice. 

J.  Limitation  and  Laches. — The  delay  in  filing  the  bill  will  not  bar  a 
suit  for  an  accounting  from  the  surviving  partner  in  a  special  partnership  be- 
tween lawyers  for  the  prosecution  of  a  number  of  claims  against  the  United 
States  in  congress  and  before  the  court  of  claims,  the  fees  for  which  services 
were  contingent  upon  success,  and  were  to  be  paid  in  solido,  and  divided  be- 
tween the  partners  in  the  same  manner,  where  such  bill,  though  not  filed  until 
eight  years  after  the  other  partner  had  been  adjudged  a  lunatic,  and  three 
years  after  his  death,  was  filed  within  four  months  after  the  fees  were  col- 
lected.^^^ 

PART  OWNERS. — See  ante,  Joint  Tenants  and  Tenants  in  Common, 
p.  806. 

PARTY  WALLS.— See  the  title  Party  Walls,  vol.  9,  p.  134,  and  refer- 
ences there  given. 

PASSAGE  OF  ACT.— See  note  2a. 

PASS  BOOK.— See  ante.  Banks  and  Banking,  p.   184. 

PASSENGER.— See  ante.  Carriers,  p.  216. 

PASTURAGE.— See  ante.  Animals,  p.  27. 

105-85a.     Priorities. — ^Morgan     z:     Cred-  of   all    crimes    against    the    United    States 

itors.    8    Martin    (N.    S.),    599;    Flov/er    z'.  to    the    federal    courts    therein    provided. 

Creditors,  3  La.  Ann.  189;  Miller  v.   New  enacting  Ihat  "all  prosecutions  for  crimes 

Orleans,  etc.,  Fertilizer  Co.,  211  U.  S.  496.  or  offenses  committed  before  the  passage 

53  L.   Ed.  300,  29   S.   Ct.   176.  of    this    act,    in    which    indictments    have 

128-95a.    Limitation    and    laches. — Con-  not  been  found  or  proceedings  instituted, 

saul    z'.    Cummings,  222    U.    S.  262,    56    L.  shall    be    cognizable    within    the    judicial 

Ed.   192,   32   S.    Ct.   83.  district    as    hereby    constituted    in    which 

134-2a.  Passage  of  the  act  construed  as  such  crimes  or  offenses  were  committed." 

admission  of  state. — Crimes   and  offenses  since  otherwise  there  would  be  an  indefi- 

committed    before    and    after    the    admis-  nite   period   between   the    date   of  the   en- 

sion  of  Oklahoma  into  the  Union,  and  not  abling  act  and  the  admission  of  the  state, 

those    committed    before    and    after    the  during  which    such   crimes   might   go   un- 

passage  of  the  Enabling  Act  of  June  16,  punished.     Pickett    v.   United    States,  216 

1906,   must  be  deemed  meant  by  the  pro-  U.  S.  456,  54  L.  Ed.  566,  30  S.  Ct.  265.     See 

vision  of  §  14  of  that  act  (34  Stat,  at  L.  ante,      COURTS,     p.     398;      CRIMINAL 

275,  U.  S.  Comp.  Stat.  Supp.  1909.  p.  155),  LAW,  p.  434. 
for  the  transfer  of  jurisdiction  in  respect 

935 


PATENTS.  Vol.  IX. 


PATENTS. 

III.  Patent  Laws,  937. 

C.  Construction  of  Patent  Laws,  937. 

V.  Patentability,  937. 

A.  What  May  Be  Patented,  937. 

5.  Arts  and  Processes,  937. 

a.  What  Constitutes,  937. 

(2)  What  Constitutes  a  Process,  937. 

b.  Patentability,  938. 

(1)  In  General,  938. 

(2)  Process  Consisting  of  Function  of  Machine,  938. 

(3)  Process  Carried  into  Effect  by   Machinery,  938. 

(a)  General  Rule,  938. 

(6)  Combinations,  939. 

B.  Invention,  939. 

2.  What  Constitutes,  939. 

b.     Perfection    of    Conception    and    Representation    in    Physical 

Form,  939. 
m.  Combination  of  Old  Elements,  939. 

3.  Evidence  of  Invention,  940. 

b.  General  Use  as  Evidence  of  Invention,  940. 

C.  Novelty  and  Anticipation,  940. 

1.  Novelty,   940. 

b.  What    Constitutes.   940. 

(7)  Combinations,  940. 

2.  Anticipation,  940. 

b.  Ways  in  Which  Patent  May  Be  Anticipated,  940. 

(1)   Prior  Patent,  940. 

(b)  Prior  Foreign  Patent,  940. 

c.  What  Constitutes  Anticipation,  940. 

(10)   Particular    Kinds    of    Inventions,   940. 
(d)   Combinations,   940. 

VI.  Proceedings  to  Obtain  Patent,  940. 

A.  Application,  940. 

1.  Specification  or  Description  of  Invention,  940. 

b.  Necessity  and   Sufficiency   of   Description,  940. 

(1)  General  Rule,  940. 

IX.  Date  and  Duration,  941. 

B.  Duration,  941. 

(2)  Duration   Limited  by   Foreign   Patent,   941. 

XII.  Sales,   Assignments,   Mortgages  and  Licenses,  941. 
A.  Sales   and  Assignments   of   Patent   Rights,   941. 

4.  Contract  of   Sale  or  Assignment,  941. 

b.  Form  and  Requisites,  941. 

(6)   Compliance  with   State   Statutes,  941. 

5.  Rights  and  Liabilities  of  Transferee,  941. 

b.  Rights  of  Transferee,  941. 

(2)   What  Passes  to  Transferee.  941. 

(a)   Title  and  Right  to  Control,  941. 

936 


Vol.  IX.    ^  PATENTS.  152-157 

(4)  Right  to  Replace  Worn  Out  Parts,  942. 
C.  Licenses,  942. 

1.  What  Constitutes,  942. 

Xm.  Infringement,  942. 

A.  What  Constitutes,  942. 

2.  Identity,  942. 

a.  Identity  of  Principle,  942. 

(2)  What  Constitutes,  942. 

(c)   Formal   Variations.   942. 

bb.  When  Form  Material  Element  of  Patent,  942. 
(e)  Use  of  Equivalents,  942. 
aa.  General   Rule,   942. 
bb.  Range   of   Equivalents,  942. 
cc.  What   Constitutes,  943. 

(bb)  Mechanical   Equivalent,   943. 

4,  Infringement  of  Particular  Kinds  of   Patents,  943. 

d.  Combinations.  943. 

(1)  General  Rule,  943. 

(2)  Use  of   Less  or  More  Elements  than  Used  in  First 

Combination,   943. 

(a)  Use  of  Less  than  All  Elements  of   First  Combi- 

nation,  943. 
bb.  Substitution    of   Element    for    One    Omitted, 
943. 
(bb)  Equivalent    for    Omitted    Element,   943. 

5.  Contributory  Infringement.  943. 

B.  Remedies  for  Infringement,  944. 

11.  Recovery  of  Damages.  Profits  or  Penalties.  944. 

b.  Recovery  of  Profits  in   Suit  in   Equity,  944. 

(2)  Amount  Recoverable,  944. 

(b)  Profits  ]\Iust  Be  Fruits  of  Invention.  944. 

(3)  Evidence  of  Profits,  944. 
(a)   Burden  of  Proof,  944. 

bb.    \\'here  Only  Part  of  Profits  Due  to  Use  of 
Invention.  944. 

12.  Judgment  or  Decree,  944. 

d.  Final  Decree  in  Favor  of  Defendant,  944. 
16.  Injunction  against   Infringement.   944. 

CROSS   REFERENCES. 

See  the  title  Patents,  vol.  9,  p.  136,  and  references  there  given. 

in.    Patent  Laws. 

C.  Construction  of  Patent  Laws. — Construed  Liberally. — The  statute 
creating  and  guarantying  to  an  inventor  the  exclusive  right  to  his  patent  will 
be  so  construed  as  to  give  effect  to  the  broad  public  policy  intended  to  be 
subserved   in  granting  the  monopoly.^^^ 

V.    Patentability. 

A.  What  May  Be  Patented — 5.  Arts  and  Processes — a.  What  Consti- 
tutes—  (2)    What  Constitutes  a  Process. — See  note  53. 

152-24a.    Construed  liberally. — Henry  v.  157-53.    What    constitutes    a    process.— 

Dick   Co.,   224   U.    S.   1,   56    L.    Ed.   645,   32       "This  clear  and  succinct  statement  of  the 
S.   Ct.  364.     See  post,   STATUTES.  rule    was    recognized    and     applied      (Mr. 

937 


158-159 


PATENTS. 


Vol.  IX. 


b.    Patentability — (1)    In  General. — See  note  56. 

(2)  Process  Consisting  of  function  of  Machine. — See  note  59. 

(3)  Process   Carried   into   Effect   by  Machinery — (a)     General   Rule. — See 
note  60. 


Justice  Bradley  again  speaking  for  the 
court)  in  the  case  of  Tilghman  v.  Proc- 
tor, 102  U.  S.  707,  26  L.  Ed.  279.  In  the 
course  of  the  opinion  the  learned  justice 
tersely  says:  'A  machine  is  a  thing.  A 
process  is  an  act,  or  a  mode  of  acting. 
The  one  is  visible  to  the  eye,  an  object 
of  perpetual  observation.  The  other  is  a 
conception  of  the  mind,  seen  only  by  its 
effects  when  being  executed  or  per- 
formed. Either  may  be  the  means  of 
producing  a  useful  result.' "  Expanded 
Metal  Co.  z'.  Bradford,  214  U.  S.  366,  53 
L.    Ed.    1034,    29    S.    Ct.    6.52. 

158-56.  Process  patentable. — "We  there- 
fore reach  the  conclusion  that  an  inven- 
tion or  discover}^  of  a  process  or  method 
involving  mechanical  operations  and  pro- 
ducing a  new  and  useful  result,  may  be 
vv^ithin  the  protection  of  the  federal  stat- 
ute, and  entitle  the  inventor  to  a  patent 
for  his  discovery."  Expanded  Metal  Co. 
V.  Bradford,  214  U.  S.  366,  53  L.  Ed.  1034, 
29   S.    Ct.   652. 

158-59.  Function  of  machine  not  patent- 
able.— "It  is  undoubtedly  true,  and  all  the 
cases  agree,  that  the  mere  function  or 
effect  of  the  operation  of  a  machine  can 
not  be  the  subject  matter  of  a  lawful 
patent."  Expanded  Metal  Co.  v.  Brad- 
ford, 214  U.  S.  366,  53  L.  Ed.  1034,  29  S. 
Ct.   652. 

159-60.  Process  carried  into  effect  by 
machinery. — 'Tt  is  lastly  contended,  and 
this  is  perhaps  the  most  important  ques- 
tion in  the  case,  that  in  view  of  the  former 
declaration  and  opinions  of  this  court, 
what  is  termed  a  process  patent  relates 
onl}^  to  such  as  are  produced  by  chemical 
action,  or  by  the  operation  or  application 
of  some  similar  elemental  action,  and  that 
such  processes  do  not  include  methods 
or  means  which  are  effected  by  mere  me- 
chanical combinations,  and  a  part  of  the 
language  used  in  Corning  v.  Burden,  15 
How.  252,  15  L.  Ed.  683,  and  Risdon,  etc.. 
Locomotive  Works  "■.  Medart,  158  U.  S. 
68,  39  L.  Ed.  899.  15  S.  Ct.  745,  is  seized 
upon  in  support  of  this  contention.  We 
have  no  disposition  to  question  the  de- 
cision in  those  cases."  Expanded  Metal 
Co.  V.  Bradford,  214  U.  S.  366,  53  L.  Ed. 
1034,  29  S.  Ct.  652. 

The  patentability  of  processes  is  not 
restricted  to  those  involving  chemical  or 
other  similar  elemental  action,  but  an  in- 
vention or  discovery  of  a  process  or 
method  involving  mechanical  operations 
and  producing  a  new  and  useful  result  is 
within  the  scope  of  Rev.  St.  U.  S.,  §  4886 
(U.  S.  Comp.  St.  1901,  p.  3382).  securing 
protection    to    the    inventor    of   "any    new 


and  useful  art,  machine,  manufacture,  or 
composition  of  matter,  or  any  new  and 
useful  improvement  thereof."  Expanded 
Metal  Co.  z:  Bradford,  214  U.  S.  366,  53 
L.  Ed.  1034,  29  S.  Ct.  652;  General  Fire- 
proofing  Co.  V.  Expanded  Metal  Co.,  212 
U.  S.  577,  53  L.  Ed.  658,  29  S.  Ct.  652,  re- 
versing decree  in  Bradford  v.  Expanded 
Metal  Co.  (1906),  146  F.  984,  77  C.  C.  A. 
230,  and  affirming  d,ecree,  Expanded 
Metal  Co.  v.  General  Fireproofing  Co. 
(1908),    164    F.   849. 

The  court  in  the  above  case  said:  "But 
it  does  not  follow  that  a  method  of  do- 
ing a  thing,  so  clearly  indicated  that  those 
skilled  in  the  art  can  avail  themselves  of 
mechanism  to  carry  it  into  operation,  is 
not  the  subject  matter  of  a  valid  patent." 

The  contrary  has  been  declared  in  de- 
cisions of  the  federal  supreme  court.  A 
leading  case  is  Cochrane  v.  Deener,  94  U. 
S.  780,  24  L.  Ed.  139.  in  which  the  federal 
supreme  court  sustained  a  process  patent 
involving  mechanical  operations.  Ex- 
panded Metal  Co.  v.  Bradford.  214  U.  S. 
366.  53  L.   Ed.  1034,  29  S.  Ct.  652. 

"That  this  court  did  not  intend  to  limit 
process  patents  to  those  showing  chemical 
action  or  similar  elemental  changes  is 
shown  by  subsequent  cases  in  this  court. 
In  Westinghouse  v.  Boyden  Power  Brake 
Co.,  170  U.  S.  537,  42  L.  Ed.  1136,  18  S. 
Ct.  707,  the  opinion  was  written  by  the 
same  eminent  justice  who  wrote  the 
opinion  in  Risdon,  etc.,  Locomotive  Works 
V.  Medart,  158  U.  S.  68,  39  L.  Ed.  899,  15 
S.  Ct.  745.  and,  delivering  the  opinion  of 
the  court,  he  said:  'These  cases,  Risdon, 
etc..  Locomotive  Works  v.  Medart,  158 
U.  S.  68,  39  L.  Ed.  899,  15  S.  Ct.  745,  and 
Wicke  z'.  Ostrum,  103  U.  S.  461,  26  L.  Ed. 
409,  assume,  although  they  do  not  ex- 
pressly decide,  that  a  process,  to  be  pat- 
entable, must  involve  a  chemical  or  other 
similar  elemental  action;  and  it  may  be 
still  regarded  as  an  open  question 
whether  the  patentability  of  process  ex- 
tends beyond  this  class  of  inventions."  " 
Expanded  Metal  Co.  v.  Bradford,  214 
U.   S.  366.  53  L.   Ed.  1034,  29   S.   Ct.  652. 

"In  Leeds,  etc.,  Co.  v.  Victor  Talking 
Mach.  Co.,  213  U.  S.  301,  318,  53  L.  Ed. 
805,  29  S.  Ct.  495,  this  court  said:  'A 
process  and  an  apparatus  by  which  it  is 
performed  are  distinct  things.  They  may 
be  found  in  one  patent;  they  may  be 
made  the  subject  of  different  patents.'" 
Expanded  Metal  Co.  v.  Bradford,  214  U. 
S.   366,   53    L.    Ed.    1034,    29    S.    Ct.    652. 

"Curtis,  in  his  work  on  the  Law  of 
Patents,  says:  'A  process  may  be  alto- 
gether   new,    whether    the    machinery    by 


938 


\'ol.  IX. 


PATENTS. 


160-175 


(6)  Combinations. — A  coniDinarion  is  a  composition  of  elements,  some  of 
which  may  be  old  and  others  new,  or  all  old  or  all  new.  It  is,  however,  the 
combination  that  is  the  invention,  and  is  as  much  a  unit  in  contemplation  of  law 
as  a  single  or  noncomposite  instrument.^'*^ 

B.  Invention — 2.  What  Constitutes — b.  Perfection  of  Conception  and 
Representation  in  Physical  Form. — See  note  78. 

Knowledge  of  Inventor. — A  combination  patent  for  an  article  which,  when 
constructed  in  accordance  with  the  specifications,  has  proved  a  great  commer- 
cial success,  may  not  be  held  devoid  of  invention  because  the  inventor  may  nov 
have  known  all  of  the  forces  which  he  had  brought  into  operation."^*  It  is 
certainly  not  necessary  that  he  understand  or  be  able  to  state  the  scientific 
principles  underlying  his  invention,  and  it  is  immaterial  whether  he  can  stand 
a  successful  examination  as  to  the  speculative  ideas  involved.'®'' 

m.  Combination  of  Old  Elements. — It  is  perfectly  Avell  settled  that  a  new 
combination  of  elements,  old  in  themselves,  but  which  produce  a  new  and  use- 
ful result,  entitles  the  inventor  to  the  protection  of  a  patent. ^'^ 


which  it  is  carried  on  be  new  or  old. 
A  new  process  may  l)e  invented  or  dis- 
covered, which  may  require  the  use  of  a 
newly-invented  machine.  In  such  a  case, 
if  not  the  process  and  the  machine  were 
invented  by  the  same  person,  he  could 
take  separate  .patents  for  them.  A  new 
process  may  be  carried  on  by  the  use 
of  an  old  machine  in  a  mode  in  which  it 
was  never  used  before  *  *  *.  In  such 
a  case,  the  patentability  of  the  process  in 
no- degree  depends  upon  the  characteristic 
principle  of  the  machine,  although  ma- 
chinery is  essential  to  the  process,  and 
although  a  particular  machine  may  be 
required.''"  Expanded  ^letal  Co.  r.  Brad- 
ford, 214  U.  S.  3G6,  5.3  L.  Ed.  1034,  29  S. 
Ct.    652. 

"In  Robinson  on  Patents,  vol.  1,  §  167, 
it  is  said:  'While  an  art  can  not  be  prac- 
ticed except  by  means  of  physical  agents, 
through  which  the  force  is  brought  in 
contact  with  or  is  directed  toward  its  ob- 
ject, the  existence  of  the  art  is  not  de- 
pendant on  any  of  the  special  instruments 
employed.  It  is  a  legal,  practical  inven- 
tion in  itself.  Its  essence  remains  un- 
changed, whatever  variation  takes  place 
in  its  instruments,  as  long  as  the  acts  of 
which  it  is  composed  are  properly  per- 
formed.' "  Expanded  Metal  Co.  v.  Brad- 
ford. 214  U.  S.  366,  53  L.  Ed.  1034,  29  S. 
Ct.    652. 

160-64a.  Combination  defined. — Leeds, 
etc.,  Co.  v.  Victor  Talking  Machine  Co., 
No.  2,  213  U.  S.  325,  53  L.  Ed.  816,  29  S. 
Ct.  503. 

163-78.  Perfection  of  conception,  etc. — 
"He  must,  indeed,  make  such  disclosure 
and  description  of  his  invention  that  it 
may  be  put  into  practice.  In  this  he  must 
be  clear.  He  must  not  put  forth  a  puz- 
zle for  invention  or  experiment  to  solve, 
but  the  description  is  sufficient  if  those 
skilled  in  the  art  can  understand  it.  This 
satisfies  the  law,  which  only  requires  as 
a    condition    of   its    protection     that      the 


world  be  given  something  new  and  that 
the  world  be  taught  how  to  use  it.  It  is 
no  concern  of  the  world  whether  the 
principle  upon  which  the  new  construc- 
tion acts  be  obvious  or  obscure,  so  that 
it  inheres  in  the  new  construction." 
Diamond  Rubber  Co.  t'.  Consolidated 
Rubber  Tire  Co.,  220  U.  S.  428,  55  L.  Ed. 
527,   532.   31    S.    Ct.   444. 

163-78a.  Knowledge  of  inventor. — 
Diamond  Rubber  Co.  z-.  Consolidated 
Rubber  Tire  Co.,  220  U.  S.  428.  55  L.  Ed. 
527.  31  S.  Ct.  444.  affirming  162  Fed.  S92. 

163-78b.  Sufficiency  of  knowledge. — 
Diamond  Rubber  Co.  v.  Consolidated 
Rubber  Tire  Co.,  220  U.  S.  428,  55  L.  Ed. 
527,  31  S.  Ct.  444,  citing  Andrews  r. 
Cross,  19  Blatchf,  294,  8  Fed.  269; 
Fames  z:  Andrews,  122  U.  S.  40,  55,  30 
L.  Ed.  1064,  7  S.  Ct.  1073;  St.  Louis 
Stamping  Co.  f.  Quinby,  4  Ban.  &  Ard. 
192.  Fed.  Cas.  No.  12,240,  16  Off.  Gaz.  135; 
Pfeifer  f.  Dixon-Woods  Co.,  5  C.  C.  A. 
148,  14  U.  S.  App.  245.  55  Fed.  390;  Cleve- 
land Foundry  Co.  t'.  Detroit  Vapor  Stove 
Co.  (C.  C.  A.  6th  C),  68  C.  C.  A.  233,  131 
Fed.  853;  Van  Epps  z'.  United  Box  Board 
&  Paper  Co.  (C.  C.  A.  2d  C),  75  C.  C. 
A.  77,  143  Fed.  869;  Westmoreland  Spe- 
cialty Co.  z:  Hogan  (C.  C.  A.  3d  C),  93 
C.   C.   A.   31.   167    Fed.   327. 

Ignorance  on  the  part  of  the  patentee 
of  a  combination  of  the  manner  of  the 
operation  of  the  elements  which  he  has 
combined  will  not  readily  be  inferred. 
Diamond  Rubber  Co.  r.  Consolidated 
Rubber  Tire  Co..  220  IJ.  S.  42S.  55  L.  Ed. 
527,   31    S.    Ct.    444. 

175-5a.  Combination  of  old  elements. — 
Expanded  :Metal  Co.  z:  Bradford,  214  U. 
S.  366,  53  L.  Ed.  1034,  29  S.  Ct.  652,  cit- 
ing Loom  Co.  z'.  Higgins,  105  U.  S.  580, 
591,  26  L.  Ed.  1177. 

.\  substantial  improvement  in  the  art 
of  making  expanded  sheet  metal,  involv- 
ing patentable  invention,  is  disclosed  by 
the  Golding  patent  527,242,  for  a  process 


939 


179-204 


PATENTS, 


Vol.  IX. 


3.  Evidence  of  Invention — b.  General  Use  as  Evidence  of  Invention. — 
The  widespread  commercial  success  of  a  patented  device  should  be  taken  into 
consideration  in  determining  the  question  of  invention  and  the  utility  of  a 
patented  device  may  be  attested  by  the  litigation  over  it.^^* 

0.  Novelty  and  Anticipation — 1.  Novelty — b.  What  Constitutes — (7) 
Combinations. — See  note  32. 

2.  Anticipation — b.  Ways  in  Which  Patent  May  Be  Anticipated — (1) 
Prior  Patent — (b)  Prior  Foreign  Patent. — See  note  41. 

c.  What  Constitutes  Anticipation — (10)  Particular  Kinds  of  Inventions — 
(d)    Combinations. — See  note  83. 

VI.  Proceedings   to   Obtain   Patent. 

A.      Application — 1.     Specification    or    Description    of    Invention — b. 
Necessity  and  Sufficiency  of  Description — (1)     General  Rule. — See  note  69. 
Addressed  to  Those  Skilled  in  Art. — See  note  70. 


by  which  the  metal  is  first  simuhaneously 
cut  and  stretched  so  as  to  produce  a 
series  of  half-diamond  meshes,  which  are 
completed  by  a  second  similar  operation, 
co-ordinating  with  the  first,  although  the 
slitting  and  stretching  of  the  sheet  at  the 
same  time  was  not  new.  Expanded  Metal 
Co.  V.  Bradford,  214  U.  S.  366,  53  L.  Ed. 
1034.   29    S.    Ct.    652. 

"To  our  minds,  Golding's  method  shows 
that  degree  of  ingenuity  and  usefulness 
which  raises  it  above  an  improvement 
obvious  to  a  mechanic  skilled  in  the  art, 
and  entitled  it  to  the  merit  of  invention. 
Others  working  in  the  same  field  had  not 
developed  it,  and  the  prior  art  does  not 
suggest  the  combination  of  operations 
which  is  the  merit  of  Golding's  invention." 
Expanded  Metal  Co.  r.  Bradford,  214  U. 
S.  366.   53   L.   Ed.  1034,  29   S.   Ct.  652. 

179-16a.  Use  as  evidence  of  invention 
and  utility. — Diamond  Rubber  Co.  z'.  Con- 
solidated Rubber  Tire  Co.,  220  U.  S.  428, 
55  L.  Ed.  527,  31  S.  Ct.  444,  affirming  162 
Fed.  892. 

181-32.  Combinations. — "And  we  may 
say,  in  passing,  the  elements  of  a  conibi- 
nation  may  be  all  old.  In  making  a  com- 
bination the  inventor  has  the  whole  field 
of  mechanics  to  draw  from."  Diamond 
Rubber  Co.  v.  Consolidated  Rubber  Tire 
Co.,  220  U.  S.  428,  55  L.  Ed.  527,  31  S.  Ct. 
444,  citing  Leeds,  etc..  Co.  r.  Victor  Talk- 
ing Mach.  Co.,  213  U.  S.  301,  318,  53  L. 
Ed.   805.   29    S.    Ct.   495. 

182-41.  Prior  foreign  patent.— The 
Dolan  patent.  No.  589,342,  for  a  duplex 
acetylene  gas  burner  of  the  Bunsen  type, 
having  a  series  of  inclined  air  passages  on 
the  sides,  is  anticipated  by  the  French 
patents  to  Bullier  and  Letang,  which  pro- 
vided for  a  mixture  of  air  with  the  gas, 
sufficient  to  secure  complete  combustion 
of  all  that  is  burned  near  the  point  of 
emergence,  but  insufficient  to  burn  all  the 
gas.  Steward  r.  American  Lava  Co..  215 
U.   S.   161,   54   L.    Ed.   139,  30  S.    Ct.   46. 

189-83.  Combinations. — The  grant  pat- 
ent   No.    554,675,    for    an    improvement    in 


rubber-tired  wheels,  consisting  of  a  solid 
rubber  tire,  held  in  place  in  a  flaring  rim 
by  the  tension  of  two  tightly  drawn  wires 
embedded  in  the  rubber  within  the 
periphery  of  the  flanges,  which  has  al- 
most universally  been  accepted  as  the 
termination  of  the  struggle  for  completely 
successful  tire,  a  tire  so  constructed 
possessing  the  function  of  rising,  falling, 
and  reseating  itself  under  lateral  strain, 
involves  patentable  invention,  and  was  not 
anticipated  by  prior  patents  covering  com- 
binations of  some  of  the  same  elements, 
but  which  do  not  possess  the  distinctive 
"tipping"  function  of  the  Grant  tire,  and 
hence  failed  of  commercial  success. 
Diamond  Rubber  Co.  v.  Consolidated 
Rubber  Tire  Co.,  220  U.  S.  428,  55  L.  Ed. 
527,    31    S.   Ct.   444. 

203-69.  Sufficiency  and  definiteness  of 
description. — A  statement  in  the  specifica- 
tions of  the  Dolan  patent,  No.  589,342,  for 
a  duplex  acetylene  gas  burner  or  tip  of 
the  Bunsen  type,  having  a  series  of  in- 
clined air  passages  on  the  sides,  that,  if 
the  burner  were  cut  off,  the  general  shape 
and  condition  of  the  flame  would  be  the 
same,  does  not  indicate  with  sufficient 
definiteness  that  the  essence  of  the  inven- 
tion is  to  have  so  short  a  chamber  or 
cylinder  as  to  prevent  the  mixing  of  the 
air  taken  into  it,  and  to  emit  a  current  of 
gas  surrounded  by  the  greater  part  of 
such  air  as  an  envelop  or  film.  Decrees, 
American  Lava  Co.  v.  Steward  (1907),  155 
F.  731,  84  C.  C.  A.  157,  and  American 
Lava  Co.  v.  Kischberger,  155  F.  740,  84 
C.  C.  A.  166,  affirmed.  Steward  v.  Ameri- 
can Lava  Co.,  215  U.  S.  161,  54  L.  Ed. 
139,   30   S.   Ct.   46. 

204-70.  Addressed  to  those  skilled  in 
art. — The  failure  to  describe  a  complete 
mechanism  in  the  specifications  of  a  pat- 
ent for  a  process  is  not  material  if 
enough  is  disclosed  to  indicate  to  those 
skilled  in  such  matters  the  mechanism 
whereby  the  method  of  the  patent  can  be 
put  into  operation.  Expanded  Metal  Co. 
z:  Bradford,  214  U.  S.  366,  53  L.  Ed.  1034, 


940 


Vol.  IX. 


PATENTS. 


244-252 


IX.     Date  and  Duration. 

B.  Duration — (2)  Duration  Limited  by  Foreign  Patent. — All  claims  of  a 
domestic  patent  do  not  necessarily  expire  with  a  foreign  patent  because  of 
provisions  of  Rev.  St.  U.  S.,  §  4887  (U.  S.  Comp.  St.  1901,  p.  3382),  that 
"every  patent  granted  for  an  invention  which  has  been  previously  patented  in 
a  foreign  country  shall  be  so  limited  as  to  expire  at  the  same  time  with  the 
foreign  patent,"  but  only  those  embodied  in  the  foreign  patent.^^^ 

Expiration  for  Failure  to  Pay  Fee. — Expiration  of  a  Canadian  patent 
by  failure  to  pay  the  fee  to  keep  it  alive  for  the  second  6  years  of  the  18-year 
term  for  which  it  was  granted  does  not  affect  duration  of  a  domestic  patent 
under  Rev.  St.  U.  S.,  §  4887  (U.  S.  Comp.  St.  1901,  p.  3382),  making  such 
patents  expire  with  foreign  patents  for  the  same  invention. ^^"^ 

XII.    Sales,  Assignments,  Mortgages  and  Licenses. 

A.  Sales  and  Assignments  of  Patent  Rights — 4.  Coxtract  of  Sale  or 
Assignment — b.  Form  and  Requisites — (6)  Compliance  with  State  Statutes. 
— See  note  37. 

5.  Rights  and  Liabilities  of  Transferee — b.  Rights  of  Transferee — (2) 
What  Passes  to  Transferee — (a)     Title  and  Right  to  Control. — See  note  44. 


29  S.  Cl.  652;  General  Fireproofing  Co.  r. 
Expanded  Metal  Co.,  212  U.  S.  577,  53  L. 
Ed.  658,  29  S.  Ct.  652.  Reversing  decree 
in  Bradford  v.  Expanded  Metal  Co. 
(1906),  146  F.  984,  77  C.  C.  A.  230,  and 
affirming  decree.  Expanded  Metal  Co.  v. 
General  Fireproofing  Co.  (1908),  164  F. 
849. 

244-83a.  All  claims  do  not  necessarily 
expire. — Leeds,  etc.,  Co.  f.  Victor  Talking 
IMach.  Co.,  213  U.  S.  301,  53  L.  Ed.  805,  29 
S.   Ct.   495. 

Expiration  of  foreign  patents  for  sound 
reproducers  or  recorders  does  not.  under 
Rev.  St.  U.  S.,  §  4887  (U.  5.  Comp.  St. 
1901,  p.  3382),  making  domestic  patents 
expire  with  foreign  patents,  affect  dura- 
tion of  the  Berliner  patent,  No.  534,543, 
for  sound-reproducing  apparatus,  so  far 
as  concerns  claim  5,  for  a  method,  and 
claim  35,  for  a  combination,  though  such 
recorder  or  reproducer  is  made  the  sub- 
ject of  a  claim  of  such  patents.  Leeds, 
etc..  Co.  v.  Victor  Talking  :Mach.  Co.,  213 
U.    S.   301,   53   L.    Ed.   805,   29   S.   Ct.   495. 

244-83b.  Expiration  for  failure  to  pay 
fee. — Leeds,  etc..  Co.  v.  Victor  Talking 
Mach.  Co.,  213  U.  S.  301,  53  L.  Ed.  805, 
29    S.    Ct.   495. 

251-37.  Application  to  merchants  and 
dealers. — The  exemption  of  merchants  and 
dealers  who  sell  patented  things  in  the 
usual  course  of  business  from  the  opera- 
tion of  Kirby's  (Ark.)  Dig.,  §§  513-516, 
requiring  a  negotiable  instrument  taken 
in  payment  for  a  patented  article  to  show 
on  its  face  for  what  it  was  given  or  be 
void,  does  not  render  such  statute  repug- 
nant to  U.  S.  Const.,  fourteenth  amend- 
ment, as  denying  the  equal  protection  of 
the  laws.  Ozan  Lumber  Co.  z:  Union 
County  Nat.  Bank,  207  U.  S.  251,  52  L. 
Ed.  195,  28  S.  Ct.  89. 


252-44.     Effect    of   unconditional   sale.— 

"By  a  sale  of  a  patented  article  subject  to 
no  conditions,  the  purchaser  undeniably 
acquires  the  right  to  use  the  article  for 
all  the  purposes  of  the  patent,  so  long  as 
it  endures.  He  may  use  it  where,  when, 
and  how  he  pleases,  and  may  dispose  of 
the  same  unlimited  right  to  another." 
Henry  z:  Dick  Co.,  224  U.  S.  1,  56  L  Ed. 
645,    32    S.    Ct.    364. 

"By  such  an  unconditional  sale  of  the 
thing  patented  it  is  said  to  be  'no  longer 
within  the  limits  of  the  monopoly.  It 
passes  outside  of  it,  and  is  no  longer  un- 
der the  protection  of  the  act  of  con- 
gress.'" Henry  z:  Dick  Co.,  224  U.  S.  1, 
56   L.   Ed.  645,  32  S.   Ct.  364. 

"This  has  long  been  the  settled  doctrine 
of  this  and  all  patent  courts."  Henry  v. 
Dick  Co.,  224  U.  S.  1.  56  L.  Ed.  645,  32  S. 
Ct.  364,  citing  Mitchell  v.  Hawley,  16 
Wall.  544,  21  L.  Ed.  322;  Livingston '  z/. 
Woodworth,  15  How.  546,  550,  14  L.  Ed. 
809;  Adams  v.  Burke,  17  Wall.  453,  456, 
21  L.  Ed.  700;  Keeler  v.  Standard  Folding 
Bed  Co.,  157  U.  S.  659,  666,  39  L.  Ed.  848, 
15    S.   Ct.   738. 

"In  the  cases  cited  above,  as  well  as  in 
the  leading  case  of  Bloomer  v.  Mc- 
Quewan,  14  How.  539,  14  L.  Ed.  532,  the 
statement  that  a  purchaser  of  a  patented 
machine  has  an  unlimited  right  to  use  it 
for  all  the  purposes  of  the  invention,  so 
long  as  the  identity  of  the  machine  is 
preserved,  was  made  of  one  who  bought 
unconditional!}-;  that  is,  subject  to  no 
specified  limitation  upon  his  righf  of  use. 
The  question  of  the  effect  of  limitations 
upon  the  right  of  use  arose,  however,  in 
Mitchell  v.  Hawley,  16  Wall.  544,  21  L 
Ed.  322,  and  there  we  find  the  distinction 
was    deemed   material   and   the    effect   de- 


941 


256-274 


PATENTS. 


\o\.  IX. 


(4)  Right  to  Replace  Worn  Out  Parts. — The  license  granted  to  a  purchaser 
of  a  patented  combination  is  to  preser\-e  its  fitness  for  use  so  far  as  it  may 
be  affected  by  wear  or  breakage.  Beyond  this  there  is  no  Hcensc^^^a 

C.  Licenses — 1.  What  Constitutes. — A  Hcense  is  not  an  assignment  of 
any  interest  in  the  patent.  It  is  a  mere  permission  granted  by  the  patentee. 
It  may  be  a  Hcense  to  make,  sell,  and  use,  or  it  may  be  limited  to  any  one  of 
these  separable  rights.  If  it  be  a  license  to  use,  it  operates  only  as  a  right  to 
use  without  being  liable  as  an  infringer.  If  a  licensee  be  sued,  he  can  escape 
liability  to  the  patentee  for  the  use  of  his  invention  by  showing  that  the  use  is 
within  his  license.  But  if  his  use  be  one  prohibited  by  the  license,  the  latter  is 
of  no  avail  as  a  defense.  As  a  license  passes  no  interest  in  the  monopoly,  it 
has  been  described  as  a  mere  waiver  of  the  right  to  sue  by  the  patentee.^^^ 

XIII.    Infringement. 

A.  What  Constitutes — 2.  Identity — a.  Identity  of  Principle — (2)  What 
Constitutes — (c)  formal  Variations — bb.  JJ'hen  Form  Material  Element  of 
Patent. — See  note  39. 

(e)  Use  of  Equivalents — aa.  General  Rule. — The  doctrine  of  equivalents 
may  be  invoked  for  other  than  pioneer  patents,  the  range  of  equivalents  de- 
pending upon  and  varying  with  the  degree  of  invention. ^^^ 

bb.    Range  of  Equivalents. — See  note  57. 


Glared."  Henry  v.  Dick  Co.,  224  U.  S.  1, 
56  L.  Ed.  645,  32  S.   Ct.  364. 

"An  absolute  and  unconditional  sale 
operates  to  pass  the  patented  thing  out- 
side the  boundaries  of  the  patent,  because 
such  a  sale  implies  that  the  patentee  con- 
sents that  the  purchaser  may  use  the  ma- 
chine so  long  as  its  identity  is  preserved. 
This  implication  arises,  first,  because  a 
sale  without  reservation,  of  a  machine 
whose  value  consists  in  its  use,  for  a 
consideration,  carries  with  it  the  pre- 
sumption that  the  right  to  use  the  particu- 
lar machine  is  to  pass  with  it."  Henry 
V.  Dick  Co..  224  U.  S.  1,  56  L.  Ed.  645, 
32  S.   Ct.  364. 

"The  rule  and  its  reason  is  thus  stated 
in  Robinson  on  Patents,  vol.  2,  §  824: 
'The  sale  must  furthermore  be  uncondi- 
tional. Not  only  may  the  patentee  im- 
pose conditions  limiting  the  use  of  the 
patented  article,  upon  his  grantees  and 
express  licensees,  but  any  person  having 
the  right  to  sell  may,  at  the  time  of  sale, 
restrict  the  use  of  his  vendee  within 
specific  boimdaries  of  time  or  place  or 
method,  and  these  will  then  become  the 
measure  of  the  implied  license  arising 
from  the  sale.'  "  Henry  z\  Dick  Co.,  224 
U.    S.   ],   56  L.   Ed.   645,   32   S.   Ct.  364. 

256-63a.  To  preserve  fitness  of  combi- 
nation.— Leeds,  etc.,  Co.  v.  Victor  Talk- 
ing :\Iach.  Co.,  213  U.  S.  301,  325.  53  L. 
Ed.  805,  29  S.  Ct.  495. 

The  sale  of  disc  sound  records  which, 
though  themselves  unpatented,  form  an 
essential  element  of  the  combination 
covered  by  claims  5  and  35  of  the 
Berliner  patent  No.  534,543,  for  sound- 
producing  apparatus,  with  the  intention 
that   such    disc   be   used   in   such   patented 


combinations,  can  not  be  justified  under 
the  purchaser's  right  of  repair  and  re- 
placement. Leeds,  etc.,  Co.  v.  Victor 
Talking  Mach.  Co.,  213  U.  S.  301,  323,  53 
L.   Ed.  805,  29  S.  Ct.  495. 

258-75a.  What  constitutes. — Henry  v. 
Dick  Co.,  224  U.  S.  1,  56  L.  Ed.  645,  32  S. 
Ct.  364. 

270-39.  Variations— Material.— The  Brill 
patents,  Xos.  627.898  and  627,900,  for  im- 
provements in  car  trucks,  in  which  the 
only  element  of  novelty,  if  any,  is  the  sus- 
Dension  of  the  semi-elliptic  springs  sup- 
porting the  car  body  by  spring  or  elastic 
links  connected  with  the  side  frame  of  the 
truck  by  a  pin  having  a  universal  ball- 
and-socket  joint  at  the  point  of  connec- 
tion, are  not  infringed  by  a  device  which 
does  not  use  a  ball  and  socket,  but  in- 
stead a  rigid  link,  supported  by  a  rel- 
atively unyielding  spiral  spring  in  the 
frame  of  the  truck.  Decree  (1908),  30  .\pp. 
D.  C.  255.  afifirmed.  Brill  z:  Washington 
R.,  etc..  Co.,  215  LT.  S.  527,  54  L.  Ed.  311, 
30   S.    Ct.   177. 

274-56a.  Doctrine  of  equivalents. — Con- 
tinental Paper  Bag  Co.  v.  Eastern  Paper 
Bas-  Co..  210  U.  S.  405,  52  L.  Ed.  1122,  28 
S.    Ct.    748. 

274-57.  Range  of  equivalents. — Concur- 
rent findings  of  the  courts  below  that  the 
Liddell  patent  Xo.  558.969,  for  an  im- 
provement in  paper  bag  machines,  which 
combines  a  rotary  cylinder  with  a  form- 
ing plate  oscillating  about  its  rear  edge 
upon  the  surface  of  the  cylinder,  is  a 
broad  invention,  and  is  infringed  by  a  ma- 
chine in  which  the  surface  of  the  cylinder 
is  depressed  away  from  the  forming 
plate,  while  the  patent  adopts  the  device 
of  causing  the  pivot  or  axis  of  the  form- 


942 


Vol.  IX. 


PATBXTS. 


276-287 


cc.    JJliat  Constitutes — (bb)    Mechanical  Equivalent. — See  note  66. 

4.  Infringement  oe  Particular  Kinds  of  Patents — d.  Coinbinatiovs — 
(1)  General  Rule. — It  seems  that  a  true  mechanical  device,  producing  by  the 
co-operation  of  its  constituents  the  result  specified  and  in  the  manner  specified, 
is  a  valid  combination,''*'^  and  whoever  uses  it  without  permission  is  an  in- 
fringer of  it.  Whoever  contributes  to  such  use  is  an  infringer  of  it.'^^'*'  And 
it  can  make  no  difference  as  to  the  infringement  or  noninfringement  of  a  co.n- 
bination  that  one  of  its  elements  or  all  of  its  elements  are  unpaiented.^'''^ 

(2)  Use  of  Less  or  More  Elements  than  Used  in  First  Combination — (a) 
Use  of  Less  than  All  Elements  of  First  Combination — bb.  Substitution  of  Ele- 
ment for  One  Omitted — (bb)    Equivalent  for  Omitted  Element. — See  note   1. 

5.  Contributory  Infringement. — Whoever  contributes  to  the  use  of  a  pat- 
ented combination  without  permission  is  an  infringer  of  it.'^     It  seems  that  the 


ing  plate  to  yield  away  from  the  cylinder. 
will  not  be  disturbed  by  the  federal  su- 
preme court  on  certiorari,  as  clearly  er- 
roneous. Decree  (190G),  150  F.  741,  80 
C.  C.  A.  407,  affirmed.  Continental  Pa- 
per Bag  Co.  V.  Eastern  Paper  Bag  Co., 
210  U.  S.  405,  52  L.  Ed.  1122,  28  S.  Ct. 
748. 

276-66.  What  constitutes  mechanical 
equivalent. — The  amended  specification  of 
the  Dolan  patent,  No.  589,342,  for  a  du- 
plex acetylene  gas  burner  or  tip  of  the 
Bunsen  type,  having  a  series  of  inclined 
air  passages  in  the  sides,  which,  for  the 
first  time,  if  at  all,  indicates  as  the  es- 
sence of  the  invention  so  short  a  cham- 
ber or  cylinder  as  to  prevent  the  mixing 
of  the  air  taken  into  it,  and  to  emit  the 
current  of  gas  surrounded  by  the  greater 
part  of  such  air  as  an  envelope  or  film,  is 
void  under  Rev.  St.  U.  S.,  §  4892  (U.  S. 
Comp.  St.  1901,  p.  3384),  because  intro- 
ducing entirely  new  matter  not  sworn  to, 
where  the  original  application  made  no 
claim  for  a  process,  and  disclosed  no  in- 
vention of  a  device.  Decrees,  American 
Lava  Co.  v.  Steward  (1907),  155  F.  731, 
84  C.  C.  A.  157,  and  American  Lava  Co. 
v.  Kirschberger,  155  F.  740,  84  C.  C.  A. 
166,  affirmed.  Steward  v.  American  Lava 
Co.,  215  U.  S.  161,  54  L.  Ed.  139,  30  S. 
Ct.   46. 

283-96a.  Infringement  of  combination. 
— Leeds,  etc.,  Co.  v.  Victor  Talking  Ala- 
chine  Co.,  213  U.  S.  301,  53  L.  Ed.  805,  29 
S.  Ct.  495. 

A  combination,  and  not  a  function,  of 
a  machine,  is  embodied  in  claim  35  of 
the  Berliner  patent  Xo.  534.543.  for  a 
"sound-reproducing  apparatus  consisting 
of  a  traveling  tablet  having  a  sound 
record  formed  thereon  and  a  reproducing 
stylus  shaped  for  engagement  with  said 
record,  and  free  to  be  vibrated  and  pro- 
pelled by  the  same,  substantially  as  de- 
scribed." Leeds,  etc.,  Co.  z:  Victor  Talk- 
ing Mach.  Co.,  213  U.  S.  301,  53  L.  Ed. 
805,   29    S.    Ct.   495. 

283-96b.  Contributory  infringement. — 
Leeds,   etc.,   Co.   v.   Victor   Tall'in'-;    .Mach. 


Co.,  213  U.  S.  325.  53  L.  Ed.  816,  29_S.  Ct. 
503.  See  post,  ''Contributory  Infringe- 
ment," xin,  A,  5. 

283-96C.  One  or  more  elements  un- 
patented.— Leeds,  etc.,  Co  :■.  Victor  Talk- 
ing Mach.  Co.,  No.  2,  213  U.  S.  325,  53  L. 
Ed.   816,   29   S.   Ct.  503. 

"For  instance,  in  the  case  at  bar  the 
issue  between  the  parties  would  be  ex- 
actly the  same,  even  if  the  record  disc 
were  a  patented  article  which  petitioner 
had  a  liscense  to  use  or  to  which  re- 
spondent had  no  rights  independant  of 
his  right  to  its  use  in  the  combination. 
In  other  words,  the  fact  that  the  disc  sold 
by  the  petitioner  is  unpatented  does  not 
effect  the  question  involved  except  to 
give  an  appearance  of  a  limitation  of  the 
rights  of  an  owner  of  a  Victor  machine 
other  than  those  which  attach  to  him  as  a 
purchaser."  Leeds,  etc.,  Co.  r.  Victor 
Talking  Mach.  Co.,  No.  2,  213  U.  S.  325,  53 
L.  Ed.  816.  29  S.  Ct.  503. 

285-1.  Use  of  equivalent. — The  claim  of 
the  De  Bange  patent,  Xo.  301,220.  for  a 
device  to  prevent  the  escape  of  gas  from 
breech-loading  cannon,  the  essence  of 
which  is  a  "system  of  packing"  which,  by 
the  force  of  the  explosion  of  the  powder, 
is  expanded  to  mike  a  tight  joint  to  pre- 
vent leakage  of  gas,  should  not  be  con- 
fined to  the  specific  form  of  the  elements 
described  therein  as  the  best  means  of 
carrying  out  the  invention,  so  that  a 
change  in  the  covering  of  the  packing,  or 
the  substitution  of  steel  rings  for  brass, 
will  avoid  infringement.  United  States  z\ 
Societe  Anonyme,  etc..  Cail,  224  U.  S.  309, 
56    L.    Ed.    778,   32    S.    Ct.    479. 

2S7-7a.  Contributory  infrinsement. — 
Leeds,  etc.,  Co.  z:  Victor  Talking  Ma- 
chine Co..  213  U.   S.  32.").  53  L.   Ed.  816.  20 

S.  Ct.  50.^. 

The  sale  of  ink  to  a  purchaser  of  a  Ro- 
tary mimeograph  sold  with  a  license  re- 
striction that  it  could  be  used  only  vv'i;i 
the  ink  supplied  by  the  patentee,  with  the 
expectation  that  the  ink  sold  would  be 
used  in  connection  with  such  mimeograph, 
constitutes    contributory    infringement    of 


943 


287-314 


PATENTS. 


Vol.  IX. 


doctrine  of  contributory  infringement,  which  is  conceded  to  exist,  should  not 
be  extended  beyond  those  articles  which  are  either  parts  of  a  patented  combina- 
tion or  device,  or  which  are  produced  for  the  sole  purpose  of  being  so  used, 
and  should  not  be  applied  to  the  staple  articles  of  commerced" 

Defense  of  Purchaser's  Right  of  Repair.— The  sale  of  disc  sound  rec- 
ords which,  though  themselves  unpatented,  form  an  essential  element  of  a 
combination  covered  by  a  patent  with  the  intention  that  such  disc  be  used  in 
such  patented  combination,  can  not  be  justified  under  the  purchaser's  right  of 
repair  and  replacement^'^ 

B.  Remedies  for  Infringement — 11.  Recovery  of  Damages,  Profits  or 
PENAI.TIES — b.  Recovery  of  Profits  in  Suit  in  Equity — (2)  Amount  Recover- 
able—  (b)    Profits  Must  Be  Fruits  of  Invention. — See  note  45. 

(3)  Evidence  of  Profits— (&)  Burden  of  Proof — bb.  Where  Only  Part  of 
Profits  Due  to  Use  of  Invention. — See  note  61. 

12.  Judgment  or  Decree — d.  Final  Decree  in  Favor  of  Defendant. — A 
final  decree  of  a  federal  circuit  court  in  favor  of  defendant  in  a  patent  infringe- 
ment suit  entitles  him  to  continue  the  business  of  manufacturing  and  selling 
throughout  the  United  States  the  alleged  infringing  article,  free  from  all  in- 
terference by  the  complainant  by  virtue  of  the  patent  alleged  to  have  been 
infringed.'''-^ 

16.  Injunction  against  Infringement. — A  prior  adjudication  of  a  federal 
court,  sustaining  the  validity  of  the  patent  in  suit,  is  a  valid  ground  for  grant- 
ing a  preliminary  injunction  against  infringement.'^'^^ 


the  patent.  Henry  v.  Dick  Co.,  224  U.  S. 
1,   56    L.    Ed.    645,    32   S.    Ct.    364. 

Evidence  of  notice  of  a  license  restric- 
tion as  to  the  use  of  ink  on  a  patented 
stencil  duplicating  machine,  disclosed  on 
the  baseboard  of  each  machine,  is  not  suf- 
ficient to  charge  a  corporation  with  in- 
fringement because  of  a  sale  of  its  own 
ink  for  use  on  such  a  machine,  where  it 
does  not  appear  that  it  ever  solicited  an 
order  for  ink  to  be  so  used,  although  it 
may  have  filled  a  few  such  orders,  or 
that  it  was  ever  notified  by  the  manu- 
facturers of  the  rights  which  they  claimed, 
or  that  anything  which  it  did  was  con- 
sidered an  infringement,  and  where  none 
of  the  chief  executive  officers  of  the  cor- 
poration had  knowledge  of  this  restric- 
tion. Judgment  (1906),  145  F.  933,  76  C. 
C.  A.  455,  aftlrmed.  Cortelyou  v.  Johnson 
&  Co.,  207  U.  S.  196,  52  L.  Ed.  167,  28  S. 
Ct.   105. 

287-7b.  Extent  of  doctrine. — Cortelyou 
V.  Johnson  &  Co.,  207  U.  S.  196,  52  L. 
Ed.    167,    28    S.    Ct.    105. 

287-7C.  Defense  of  purchaser's  right  of 
repair, — Leeds,  etc.,  Co.  v.  Victor  Talking 
Mach.  Co.,  No.  2,  213  U.  S.  325,  53  L.  Ed. 
816,  29  S.  Ct.   503. 

307-45.  Profits  must  be  fruits  of  inven- 
tion.— Such  part  only  of  the  commingled 
profits  as  are  attributed  to  the  use  of  his 
invention  can  be  recovered  by  the  pat- 
entee in  a  suit  against  an  infringer  who 
has  added  noninfringing  and  valuable  im- 
provements contributing  to  the  profits. 
Westinghouse,  Elect.,  etc.,  Co.  v.  Wagner, 


Elect.,  etc.,  Co.,  225  U.  S.  604,  56  L.  Ed. 
1222,    32    S.    Ct.   691. 

311-61.  Where  only  part  of  profits  due 
to  use  of  invention. — A  patentee  suing  to 
recover  profits  from  an  infringer  who  has 
added  noninfringing  and  valuable  im- 
provements discharges  the  burden  resting 
upon  him  of  showing  what  part  of  the 
commingled  profits  are  attributable  to  the 
use  of  his  invention  by  proving  the  ex- 
istence of  such  profits  and  the  impossi- 
bility of  accurately  or  approximately 
separating  them  from  those  arising  out  of 
defendant's  additions,  and  the  defendant 
must  then  carry  the  burden  of  such 
separation  if  he  is  to  escape  liability  for 
the  entire  profits.  Westinghouse,  Elect., 
etc.,  Co.  V.  Wagner  Elect.,  etc.,  Co.,  225 
U.  S.  604,  56  L.   Ed.  1222,  32  S.  Ct.  691. 

313-72a.  Final  decree  in  favor  of  de- 
fendant—Kessler  V.  Eldred,  206  U.  S.  285, 
51   L.   Ed.  1065,  27   S.   Ct.   611. 

Violation  of  right  under  decree. — De- 
fendant's rights  under  a  final  decree  in 
his  favor  rendered  by  a  federal  circuit 
court  in  a  patent  infringement  suit  are 
violated  by  the  action  of  the  complainant 
therein  in  thereafter  filing  a  bill  against  one 
of  the  former's  customers  for  an  alleged 
infringement  of  the  patent  on  account  of 
the  use  or  sale  of  the  same  article  passed 
upon  in  the  prior  suit.  Kessler  v.  Eldred, 
206  U.  S.  285.  51  L.  Ed.  1065.  27  S.  Ct.  611. 

314-77a.  Injunction  against  infringe- 
ment.— Leeds,  etc.,  Co.  v.  Victor  Talking 
Mach.  Co..  213  U.  S.  301,  53  L.  Ed.  805, 
29  S.  Ct.  495,  affirming  148  Fed.  1022.  See 
ante,    INJUNCTIONS,    p.    657. 


944 


Vol.  IX.  PENALTIES  AND   FORFEITURES.  314-364 

Nonuser  of  a  patent  for  an  improvement  in  paper  bag  machines,  in  order 
to  save  the  expense  of  changing  or  altering  the  old  machines,  will  not  justify 
a  court  of  equity  in  withholding  injunctive  relief  against  infringement.''^'^ 

PATENT  TO  LAND.— See  post,  Public  Lands.  As  color  of  title,  see  ante, 
Limitation  of  Actions  and  Adverse  Possession,  p.  828. 

PAUPERS. — See  the  title  Paupers,  vol.  9,  p.  318,  and  references  there 
given. 

PAWN. — See  post.  Pledge  and  Collateral  Security. 

PAY. — See  ante,  Army  and  Navy,  p.  150;  Clerks  oe  Court,  p.  241,  and 
like  titles. 

PAYMENT.— See  the  title  Payment,  vol.  9,  p.  319,  and  references  there 
given.  In  addition,  see  ante,  Bankruptcy,  p.  168 ;  Bills,  Notes  and  Checks, 
p.  204;  Courts,  p.  398;  Jurisdiction,  p.  812;  post,  Pensions;  Principal  and 
Surety;   Taxation. 

PAYMENT  INTO  COURT.— See  the  title  Payment  into  Court,  vol.  9,  p. 
350.  and  references  there  given. 

PEDDLER. — See  references  ante,  under  Haw^kers  and  PeddlErs,  p.  617. 

PEDIGREE. — See  the  title  Pedigree,  vol.  9,  p.  354,  and  references  there 
given. 

PENALTIES  AND  FORFEITURES. 

IX.  Power  to  Impose,  Enforce  and  Dispose  of  Penalties  and  Forfei- 
tures, 945. 

XIV.  Proceedings  to  Recover  Penalties,  945. 
B.  Nature  of  Proceedings,  945. 

CROSS   REFERENCES. 

See  the  title  Penalties  and  Forfeitures,  vol.  9.  p.  Z'?? ,  and  references  there 
given. 

In  addition,  see  ante,  Jury,  p.  813. 

IX.  Power  to  Impose,  Enforce  and  Dispose  of  Penalties  and  Forfeitures. 

The  legislature  has  the  power  to  enact  penalties  for  the  violation  of  statutes 
irrespective  of  the  motives  or  knowledge  of  the  party  in  commission  of  the 
ofifense.^"^  Penalties  which  are  not  authorized  by  law  may  not  be  inflicted 
by  judicial  authority.-"'' 

XIV.     Proceedings   to   Recover  Penalties. 
B.    Nature  of  Proceedings. — It  is  settled  law  that  a  certain  sum,  or  a  sum 

314-77b.    Nonuser  of  patent. — Continen-  forfeiture      is      incurred,     notwithstanding 

tal  Paper  Bag  Co.  v.   Eastern  Paper  Bag  their  ignorance.     Such  is  also  the  case  in 

Co.,  210  U.  S.  405,  52  L.  Ed.  1122,  28  S.  Ct.  regard    to   many    other   fiscal,    police,    and 

748.  other  laws   and   regulations,   for   the   mere 

364-27a.  Power  of  legislature. — "  'Where  violation  .of  which,  irrespective  of  the  mo- 

a  statute   commands   that   an   act   be   done  tives   or   knowledge   of  the   party,   certain 

or  omitted,  which,  in  the  absence  of  such  penalties    are    enacted;    for    the     law,      in 

statute,  might  have  been  done  or  omitted  these    cases,   seems   to   bind   the   party   to 

without  culpability,   ignorance   of  the   fact  know  the  facts  and  to  oV>pv  <he  Ipw  at  his 

or    state    of   things    contemplated    by    the  peril.'     (3    Greenleaf,   16th    Ed.,  §§  21,    26 

statute,  it  seems,  will  not  excuse  its  vio-  and    notes.)"      Chicago,     etc.,    R.    Co.    v. 

lation.     Thus,  for  example,  where  the  law  United    States,    220   U.    S.    559,    579,   55    L. 

enacts    the    forfeiture    of    a     ship      having  Ed.   582,   31    S.   Ct.   612. 

smuggled  goods  on  board,  and  such  goods  364-27b.  Power  of  courts. — Standard  Oil 

are    secreted    on    board    by    some    of    the  Co.  v.  United  States.  22]   U.  S.  1,  77,  55  L. 

crew,   the   owner   and   officers   being   alike  Ed.    619,    31    S.    Ct.   502. 
innocently   ignorant    of   the    fact,    yet    the 

12  U  S  Enc— 60  945 


367 


PENSIONS. 


Vol.  IX. 


which  can  readily  be  reduced  to  a  certainty,  prescribed  in  a  statute  as  a  penalty 
for  the  violation  of  law,  may  be  recovered  by  civil  action,  even  if  it  may  also 
be  recovered  in  a  proceeding  which  is  technically  criminal.^ ^^  If  the  statute 
by  which  the  penalty  is  imposed  contemplates  recovery  only  by  a  criminal 
proceeding,  a  civil  remedy  can  not  be  adopted.^^''. 

PENDENTE  LITE.— See  ante.  Lis  Pendens,  p.  834;  post,  Quieting  Title. 


PENSIONS. 

VIII.  Payment  and  Recovery  Back  of  Pensions,  946. 

C.  Recovery  Back  of  Payment  on  Pension  Check  Where  Payee's  Indorse- 
ment Forged,  946. 

CROSS   REFERENCES. 

See  the  title  Pensions,  vol.  9,  p.  371,  and  references  there  given. 

VIII.    Payment  and  Recovery  Back  of  Pensions. 

C.  Recovery  Back  of  Payment  on  Pension  Check  Where  Payee's  In- 
dorsement Forged. — The  right  of  the  United  States  to  recover  back  moneys 
paid  to  a  bank  on  pension  checks  bearing  the  forged  indorsements  of  the  payees 
is  not  conditioned  either  upon  demand  or  the  giving  of  notice  of  the  discovery 
of  the  forgeries,  since  the  bank,  by  presenting  the  checks  for  payment,  war- 
ranted their  genuineness,  and  the  United  States  can  not,  especially  in  view  of 
the  provisions  of  Rev.  St.  U.  S.,  §§  4764,  4765  (U.  S.  Comp.  St.  1901,  pp.  3284, 


367-41a.  Nature  of  proceedings. — Chi- 
cago, etc.,  R.  Co.  v.  United  States.  220  U. 
S.  559,  578,  55  L.  Ed.  582,  31  S.  Ct.  612; 
Hepner  v.  United  States,  213  U.  S.  103, 
53  L.  Ed.  720,  29  S.  Ct.  474.  See  ante, 
ACTIONS,  p.  7. 

Civil  action. — An  action  by  the  United 
States  to  recover  froin  a  carrier  the  pen- 
alty prescribed  for  violations  of  safetv 
appliance  acts  (Act  March  2,  1893,  c.  196, 
27  Stat.  531  [U.  S.  C^rno.  St.  l"Ol.  p. 
3174] ;  Act  April  1,  1896,  c.  87,  29  Stat.  85 
[U.  S.  Comp.  St.  1901,  p.  3175];  and  Act 
March  2.  1903,  c.  97fi,  32  Stat.  9-43  LU.  S. 
Comp.  St.  Supp.  1909,  p.  11431).  is  a  civil, 
and  not  a  criminal,  action.  Chicago,  etc., 
R.  Co.  V.  United  States.  220  U.  S.  559,  55 
L.  Ed.  582,  31  S.  Ct.  612,  affirming  judg- 
ment in  170   F.   556.  95   C.   C.  A.   642. 

The  penalty  incurred  under  the  Act  of 
March  3,  1903  (32  Stat,  at  L.  1213,  1214, 
chap.  1012).  §§  4,  5.  for  inducing  an  alien 
to  migrate  to  the  United  States  for  the 
purpose  of  performing  labor  there,  may 
be  recovered  by  a  civil  action  of  debt 
brought  bv  the  United  States.  Hepner 
V.  United  States,  213  U.  S.  103,  53  L.  Ed. 
720,  29  S.  Ct.  474.  See  ante,  ACTIONS, 
p.    7. 

When  criminal  action  not  precluded. — 
Congress,  by  providing  in  the  Immigra- 
tion Act  of  February  20,  1907  (34  Stat,  at 
L.  898,  chap.  1134.  U.  S.  Comp.  Stat.  Supp. 
1907,  p.  389),  §  5,  a  civil  action  for  the 
recovery  of  a  penalty  in  case  of  a  violation 
of   §    4    of   that    act,    making   it    a   misde- 


meanor to  assist  or  encourage  the  im- 
portation of  alien  contract  laborers,  did 
not  preclude  a  prosecution  by  indictment 
to  enforce  such  penalty.  United  States  v. 
Stevenson,  215  U.  S.  190.  54  L.  Ed.  153, 
30  S.  Ct.  35.     See  ante,  ACTIONS,  p.  7. 

It  is  to  be  noted  that  this  statute  (§  5 
of  the  Immigration  Act)  does  not  in 
terms  undertake  to  make  an  action  for 
the  penalty  an  exclusive  means  of  en- 
forcing it,  and  only  provides  that  it  may 
be  thus  sued  for  and  recovered.  There  is 
nothing  in  the  terms  of  the  act  specifically 
undertaking  to  restrict  the  government  to 
this  method  of  enforcing  the  law.  It  i* 
not  to  be  presumed,  in  the  absence  of 
language  clearly  indicating  the  contrary 
intention,  that  it  v/as  the  purpose  of  con- 
gress to  take  from  the  government  the 
v\rell-recognized  method  of  enforcing  such 
a  statute  by  indictment  and  criminal  pro- 
ceedings. United  States  t'.  Stevenson,  215 
U.   S.  190.  198.  54  L.  Ed.  153.  30  S.   Ct.  35. 

"Nor  does  this  conclusion  take  away 
any  of  the  substantial  rights  of  the  citi- 
zen. He  is  entitled  to  the  constitutional 
protection  which  requires  the  government 
to  produce  the  witnesses  against  him,  and 
no  verdict  against  him  can  be  d-rected, 
as  might  be  the  case  in  a  civil  action  for 
the  penalty.  Hepner  v.  United  States,  213 
U.  S.  103,  53  L.  Ed.  720,  29  S.  Ct.  474." 
United  States  v.  Stevenson,  215  U.  S. 
190.   199.   54   L.   Ed.   153.   30   S.    Ct.   35. 

367-41b.  Civil  remedy. — Hepner  v. 
United    States,   213   U.    S.   103,   108,   53   L. 


946 


Vol.  IX. 


PERILS  OF  THE  SEA. 


376-383 


3285),  contemplating  departmental  regulations   for  establishing  the  identity  of 
pensioners,  be  charged  with  knowledge  of  their  signatures. ^^^ 

PEONAGE.— See  note  1. 

PEREMPTORY  INSTRUCTION.— See  ante,  Civil  Rights,  p.  236;  Hom- 
icide, p.  619;  Instructions,  p.  672;  post,  Verdict. 
PERILS  OF  THE  SEA.— See  note  4. 


Ed.  720,  29  S.  Ct.  474,  following  United 
States  V.  Claflin,  97  U.  S.  546,  24  L.  Ed. 
1028. 

376-29a.  Recovery  back  where  payee's 
indorsement  on  pension  check  forged. — ■ 
United  States  v.  National  Exch.  Bank,  214 
U.  S.  302,  53  L.  Ed.  1006,  29  S.  Ct.  665,  re- 
versing  151    Fed.   402,   80   C.    C.   A.   632. 

382-1.  "Peonage  is  a  term  descriptive 
of  a  condition  which  has  existed  in  Span- 
ish America,  and  especially  in  Mexico. 
The  essence  of  the  thing  is  compulsory 
service  in  payment  of  a  debt.  A  peon  is 
one  who  is  compelled  to  work  for  his 
creditor  until  his  debt  is  paid."  Bailey  v. 
Alabama,  219  U.  S.  219,  242,  55  L.  Ed.  191, 
31  S.  Ct.  145.  See  post,  SLAVERY  AND 
INVOLUNTARY  SERVITUDE. 

The  term  peonage  may  be  defined  as  a 
status  or  condition  of  compulsory  service, 
based  upon  the  indebtedness  of  the  peon 
to  the  master.  The  basal  fact  is  indebt- 
edness. "One  fact  existed  universally; 
all  were  indebted  to  their  masters.  This 
was  the  cord  by  which  they  seemed 
bound  to  their  masters'  service."  Upon 
this  is  based  a  condition  of  compulsory 
service.  Peonage  is  sometimes  classified 
as  voluntary  or  involuntary,  but  this  im- 
plies simply  a  difference  in  the  mode  of 
origin,  but  none  in  the  character  of  the 
servitude.  The  one  exists  where  the 
debtor  voluntarily  contracts  to  enter 
the  service  of  his  creditor.  The  other  is 
forced  upon  the  debtor  by  some  provision 
of  law.  But  peonage,  however  created,  is 
compulsory  service,  involuntary  servi- 
tude. The  peon  can  release  himself 
therefrom,  it  is  true,  by  the  payment  of 
the  debt,  but  otherwise  the  service  is  en- 
forced. A  clear  distinction  exists  between 
peonage  and  the  voluntary  performance 
of  labor  or  rendering  of  services  in  pay- 
ment of  a  debt.  In  the  latter  case  the 
debtor,  though  contracting  to  pay  his  in- 
debtedness by  labor  or  service,  and  sub- 
ject like  any  other  contractor  to  an  action 


for  damages  for  breach  of  that  contract, 
can  elect  at  any  time  to  break  it,  and  no 
law  or  force  compels  performance  or  a 
continuance  of  the  service.  Bailey  v.  Ala- 
bama, 219  U.  S.  219,  243,  55  L.  Ed.  191,  31 
S.  Ct.  145. 

"The  act  of  Congress,  nullifying  all  the 
state  lav/s  by  which  it  should  be  at- 
tempted to  enforce  the  'service  or  labor 
of  anjr  persons  as  peons,  in  liquidation  of 
any  debt  or  obligation,  or  otherwise,' 
necessarily  embraces  all  legislation  which 
seeks  to  compel  the  service  or  labor  by 
making  it  a  crime  to  refuse  or  fail  to  per- 
form it.  Such  laws  would  furnish  the 
readiest  means  of  compulsion.  The  Thir- 
teenth Amendment  prohibits  involuntary 
servitude  except  as  punishment  for  crime. 
But  the  exception,  allowing  full  latitude 
for  the  enforcement  of  penal  laws,  (loes 
not  destroy  the  prohibition.  It  does  not 
permit  slavery  or  involuntary  servitude 
to  be  established  or  maintained  through 
the  operation  of  the  criminal  law  by 
making  it  a  crime  to  refuse  to  submit  to 
the  one  or  to  render  the  service  which 
would  constitute  the  other.  The  state 
may  impose  involuntary  servitude  as  a 
punishment  for  crime,  but  it  may  not 
compel  one  man  to  labor  for  another  in 
payment  of  a  debt,  by  punishing  him  as 
a  criminal  if  he  does  not  perform  the 
service  or  pay  the  debt."  Bailey  v.  Ala- 
bama, 219  U.  S.  219,  243,  55  L.  Ed.  191,  31 
S.   Ct.  145. 

383-4.  "Although  in  defining  salvage 
the  expression  peril  of  the  sea  has  some- 
times been  used  as  equivalent  to  peril  on 
the  sea,  it  is  settled  that  the  distress  or 
danger  from  which  a  vessel  has  been 
saved  need  not,  in  order  to  justify  a  re- 
covery of  salvage  compensation,  have 
arisen  solely  by  reason  of  a  peril  of  the 
sea  in  the  strict  legal  acceptation  of  those 
words."  The  Steamship  Jefferson,  215  U. 
S.  130,  139,  54  L.  Ed.  125,  30  S.  Ct.  54. 
See  post,  SALVAGE. 


947 


391-395 


PERSON. 


Vol.  IX. 


PERJURY. 

IV.  Subornation  of  Perjury,  948. 

CROSS   REFERENCES. 

See  the  title  Perjury,  vol.  9,  p.  385,  and  references  there  given. 

As   to  perjury   and   subornation   of  perjury   in   attempting  to  obtain   title  to 
land,  see  post,  Public  Lands. 

IV.  Subornation  of  Perjury. 

Indictment. — An  indictment  charging  subornation  of  perjury  before  a  fed- 
eral grand  jury  need  not,  in  describing  the  proceedings  in  which  the  perjury 
was  committed,  state  the  name  of  a  specified  defendant  under  investigation.-"'^  • 
There  is  no  want  of  definiteness  in  an  indictment  charging  subornation  of  perjury 
before  a  federal  grand  jury  because  it  is  in  effect  simply  alleged  therein  that 
before  the  grand  jury,  after  the  witness  had  been  sworn,  the  truth  of  the  re- 
cited matters  concerning  which  it  was  subsequently  alleged  that  he  testified 
falsely,  "became  and  was  a  material  question,"  and  did  not  specify  in  just  what 
evidentiary  way  the  perjured  testimony  became  material. ^^^ 

PERPETUITIES. 

II.  .Construction,  Application  and  Effect  of  Rule,  948. 
B.  Time  of  A^esting  as  Determining  \'alidity,  948. 
1.  At  Common  Law,  948. 

CROSS   REFERENCES. 

See  the  title  Perpetuities,  vol.  9,  p.  392,  and  references  there  given. 

II.    Construction,  Application  and  Effect  of  Rule. 

B.    Time  of  Vesting  as  Determining  Validity — 1.    At  Common  Law. — 
See  note  11. 


PERSON.— See  note  2. 

391-24a.  Sufficiency  of  indictment  for 
subornation  of  perjury. — Hendricks  z'. 
United  States,  223  U.  S.  178,  56  L.  Ed. 
394,   32   S.   Ct.  313. 

391-24b.  Hendricks  z:  United  States,  223 
U.    S.   178,   5G   L.    Ed.  394,   32   S.   Ct.  313. 

394-11.  The  rule  against  perpetuities, 
where  the  conmion  law  prevails,  is  not 
violated  by  a  will  creating  a  trust  for  '"as 
long  a  period  as  is  legally  possible,"  to 
terminate  when  the  law  renuires  it  "un- 
der the  statute,"  to  receive  the  income  and 
pay  annuities  therefrom  to  certain  named 
annuitants  and  their  heirs,  and,  on  the 
termination  of  the  trust,  to  distribute  the 
trust  fund  equally  among  those  then  en- 
titled to  the  annuities,  since  the  testator 
clearly  must  have  intended  to  limit  the 
duration  of  the  trust  to  21  years  after  the 
death  of  the  last  survivor  of  the  annui- 
tants named  in  the  will,  when  distribution 
is  to  be  made.  Fitchie  v.  Brown,  211  U. 
S.   321,   53    L.    Ed.   202,  29   S.    Ct.    106. 


A  corporation  or  joint-stock  company 
to  which  an  annuity  is  bequeathed  will 
not  be  deemed  a  life  in  being  where  so  to 
regard  it  would  cause  a  trust  created  by 
the  will  to  violate  the  rule  against  per- 
petuities. Fitchie  z'.  Brown,  211  U.  S. 
321,   53    L-   Ed.  202,   29   S.    Ct.   106. 

A  trust  does  not  violate  the  common- 
law  rule  against  perpetuities  because  the 
selected  lives  in  being  by  which  the  dura- 
tion of  the  trust  is  limited  exceed  40  in 
number.  Fitchie  v.  Brown,  211  U.  S.  321, 
53   L.   Ed.  202,  29   '^.   Ct.   106. 

395-2.  Corporation  as  a  person. — See 
ante,  CORPORATIONS,  p.  381.  "A 
corporation  is  a  person,  within  the  mean- 
ing of  the  Fourteenth  Amendment.'' 
Southern  R.  Co.  v.  Greene,  216  U.  S.  400, 
412.  54  L.  Ed.  536,  30  S.  Ct.  287.  See  ante, 
DUE  PROCESS  OF  LAW,  p.  475. 

In  §  6  of  the  Act  of  May  9,  1902,  re- 
quiring wholesale  dealers  in  oleomarga- 
rine, etc.,  to  keep  certain  books  and  make 


948 


Vol.  IX. 


PHYSICIAXS  AXD  SURGEOXS. 


398 


PERSONAL  ACTIONS.— See  ante.  Abatement,  Revival  and  Survival, 
p.  1  :  Actions,  p.  7. 

PERSONAL  PROPERTY. — See  references  given  under  Personal  Prop- 
erty, vol.  9,  p.  396. 

PERSONAL  SERVICE. — See  ante,  Bail  and  Recognizance,  p.  166;  post, 
Summons  and  Process. 

PETITION. — See  ante,  Appeal  and  Error,  p.  34;  Habeas  Corpus,  p.  612; 
Mandamus,  p.  838;  post.  Removal  of  Causes. 

PHILIPPINE  ISLANDS.— See  references  under  Philippine  Islands,  vol. 
9,  p.  397.  In  addition,  see  ante,  Attorney  and  Client,  p.  158;  International 
Law.  p.  686 ;  Treaties. 

PHOTOGRAPHS.— See  ante.  Extradition,  p.  571. 


PHYSICIANS  AND  SURGEONS. 

CROSS   REFERENCES. 

See  the  title  Physicians  and  Surgeons,  vol.  9,  p.  398,  and  references  there 
given. 

Power  of  State  to  Provide  Qualifications. — See  note  1. 


certain  returns  and  providing  that  "any 
person  who  willfully  violates  any  of  the 
provisions  of  this  section,"  shall  be  pun- 
ished, the  words  "any  person"'  embrace 
corporations.  United  States  v.  United 
Supply  Co.,  215  U.  S.  50,  54,  54  L.  Ed.  87, 
30  S.  Ct.  15.  See  references  ante,  under 
FOOD  AND  DRUGS,  p.  584. 

Person  as  used  in  the  anti-trust  act. — 
See  ante,  MONOPOLIES  AXD  COR- 
PORATE  TRUSTS,  p.  874. 

Persons  supplying  materials  to  con- 
tractors.— The  additional  phrase,  "the 
person  or  persons  supplying  the  con- 
tractor with  labor  and  materials,"  used 
in  the  Act  of  February  24,  1905  (33  Stat, 
at  L.  811,  chap.  778,  U.  S.  Comp.  Stat. 
Supp.  1909,  p.  948),  amending  the  Act  of 
August  13,  1894  (28  Stat,  at  L.  278,  chap. 
280,  U.  S.  Comp.  Stat.  1901,  p.  2523),  in 
describing  the  persons  entitled  to  a  copy 
of  the  contract  and  bond  for  the  purpose 
of  suit,  does  not  change  the  rule  that 
labor  and  materials  used  in  the  prosecu- 
tion  of   a   public   work,    though    furnished 


to  a  subcontractor,  are  within  the  obliga- 
tion of  a  bond  conditioned,  conformably 
to  those  statutes,  for  the  prompt  pay- 
ment by  the  contractor  to  all  persons 
supplying  him  with  labor  or  materials  in 
the  prosecution  of  the  work.  2\Iankin  f. 
United  States,  215  U.  S.  533,  54  L.  Ed. 
315.  30  S.  Ct.  174.  See  post,  UNITED 
STATES. 

A  forwarding  agent  is  a  person  within 
the  meaning  of  the  Interstate  Commerce 
Act  of  February  4,  1887,  §  2,  forbidding 
preferences  and  discrimination  in  rates. 
Interstate  Coinmerce  Comm.  v.  Dela- 
ware, etc.,  R.  Co.,  220  U.  S.  235,  55 
L.  Ed.  448,  31  S.  Ct.  392.  See  ante,  IN- 
TERSTATE AND  FOREIGN  COM- 
MERCE, p.  689. 

398-1.  Power  of  state  to  provide  as  to 
Qualifications  of  medical  practitioner. — 
Collins  r.  State,  223  U.  S.  288,  56  L.  Ed. 
439,  32  S.  Ct.  286;  Rosenkrans  v.  Rhode 
Island,  225  U.  S.  698,  56  L.  Ed.  1263,  32 
S.    Ct.   840. 


949 


400-402 


PILOTS. 


Vol.  IX. 


PILOTS. 

II.  Power  of  Congress  to  Prescribe  Regulations  Concerning  Pilots,  950. 

B.  Power  of  Congress  Exercised  by  Adopting  State  Regulations,  950. 

III.  State  Regulations,  950. 

C.  Congress  J\Iay  Restrict  or  Supersede  State  Laws,  950. 
F.  Exemptions  and  Discriminations,  950. 

3.    Federal  Statutes  Exempting  Certain  Classes  of  A'essels  from  the 
Operation  of  State  Laws,  950. 

a.  The  Act  of  August  30,  1852.  950. 

b.  Coastwise   Seagoing  Steam  Vessels,  951. 

CROSS   REFERENCES. 

See  the  title  Pilots,  vol.  9,  p.  400,  and  references  there  given. 

In  addition,  see  ante,  Admiralty,  p.  10;  Collision,  p.  243;  Interstate  and 
Foreign  Commerce,  p.  689;  post,  Ships  and  Shipping. 

As  to  pilots  on  boundaries  between  states,  see  ante,  Interstate  and  Foreign 
Commerce,  p.  689. 

n.    Power  of  Congress  to  Prescribe  Regulations  Concerning  Pilots. 

B.  Power  of  Congress  Exercised  by  Adopting  State  Regulations. — 
See  note  5. 

III.    State  Regulation. 

C.  Congress  May  Restrict  or  Supersede  State  Laws. — See  note  8. 

F.  Exemptions  and  Discriminations — 3.  Federal  Statutes  Exempting 
Certain  Classes  of  Vessels  from  the  Operation  of  State  Laws — a.  The 
Act  of  August  so,  1852. — See  note  16. 


400-5.  Power  of  congress  exercised  by 
adopting  state  regulations. — Anderson  i\ 
Pacific  Coast  Steamship  Co.,  225  U.  S. 
187,  56  L.   Ed.  1047,  32  S.  Ct.  626. 

"When  the  constitution  of  the  United 
States  was  adopted,  each  state  had  its  own 
regulations  of  pilotage.  While  this  sub- 
ject was  embraced  within  the  grant  of 
the  power  'to  regulate  commerce  with 
foreign  nations  and  among  the  several 
states'  (art.  1,  §  S),  congress  did  not  super- 
sede the  state  legislation,  but  by  the  Act 
of  August  7,  1789,  chap.  9.  §  4  (1  Stat,  at 
L.  53,  54,  Rev.  Stat.,  §  4235,  U.  S.  Comp. 
Stat.  1901,  p.  2903),  it  was  enacted  that 
'all  pilots  in  the  bays,  inlets,  rivers,  har- 
bors, and  ports  of  the  United  States, 
shall  continue  to  be  regulated  in  conform- 
ity with  the  existing  laws  of  the  states 
respectively  wherein  such  pilots  may  be, 
or  with  such  laws  as  the  states  may  re- 
spectively hereafter  enact  for  the  pur- 
pose, until  further  legislative  provision 
shall  be  made  bv  congiess.'  "  Anderson 
V.  Pacific  Coast  Steamship  Co.,  225  U.  S. 
187,  56  L.  Ed.  1047,  .32  S.  Ct.  626.  See, 
also,  ante.  INTERSTATE  AND  FOR- 
EIGN COMMERCE,  p.  689.  _ 

401-8.  Congress  may  restrict  or  super- 
sede     state      law. — Anderson      f.      Pacific 


Coast  Steamship  Co.,  225  U.  S.  187,  56 
L.    Ed.   1047,  32   S.   Ct.   626. 

The  Act  of  August  7.  1709  chap.  9.  §  4 
(1  Stat,  at  L.  53,  54,  Rev.  Stat.,  §  4235, 
U.  S.  Comp.  Stat.  1901,  p.  2903),  was  "a 
clear  and  authoritative  declaration  by  the 
first  congress,  that  the  nature  of  this  sub- 
ject is  such  that  until  congress  should 
find  it  necessary  to  exercise  its  power,  it 
should  be  left  to  the  legislation  of  the 
states;"  and  it  has  long  been  established 
by  the  decisions  of  the  federal  supreme 
court  that,  although  state  laws  concerning 
pilotage  are  regulations  of  commerce, 
they  fall  within  that  class  of  powers 
which  may  be  exercised  by  the  states  un- 
til consrress  shall  see  fit  to  act.  Cooley 
i\  Board,  12  How.  298,  321.  13  L.  Ed.  996; 
Steamship  Co.  v.  Joliffe,  2  Wall.  450,  459, 
17  L.  Ed.  805;  Anderson  v.  Pacific  Steam- 
ship Co.,  225  U.  S.  187,  56  L.  Ed.  1047,  32 
S.   Ct.   626. 

402-16.  Same— Act  of  August  30,  1852, 
providing  for  licensing  pilots  of  steam 
vessels,  repealed  by  Act  of  February  28, 
1871. — Anderson  v.  Pacific  Coast  Steam- 
ship Co..  225  U.  S.  187,  56  L.  Ed.  1047,  32 
S.   Ct.  626. 

"The  Act  of  August  30,  1852,  chap.  106 
(10   Stat,   at   L.   61),   contained  provisions 


950 


Vol.  IX. 


PILOTS. 


403 


b.  Coastzi'ise  Seagoing  Steam  Vessels. — Coastwise  seagoing  steam  vessels  sail- 
ing under  register,  whether  employing  federal  pilots  or  not,  are  not  exempted 
from  the  liability  for  pilotage  fees  created  by  Cal.  Pol.  Code,  §§  2432,  2466, 
2468,  upon  proper  tender  of  resident  bar  pilot  service  when  entering  or  leav- 
ing the  port  of  San  Francisco,  by  the  Act  of  Februarv  28.  1871  (16  Stat,  at  L. 
440,  chap.  100),  §  51,  re-enacted  as  U.  S.  Rev.  Stat.,  §§  4401,  4444,  U.  S.  Comp. 
Stat.  1901.  pp.  3016,  3037,  which  provides  that  "every  coastwise  seagoing  steam 
vessel  subject  to  the  navigation  laws  of  the  United  States  and  to  the  rules  and 
regulations  aforesaid,  not  sailing  under  register,  shall,-  when  under  way,  except 
on  the  high  seas,  be  under  the  control  and  direction  of  pilots  licensed  by  the 
inspectors  of  steamboats,"  and  prohibits  the  states  from  imposing  upon  pilots 
of  steam  vessels  "herein  provided  for"  any  obligation  to  procure  an  additional 
license,  or  any  regulation  which  will  impede  them  "in  the  perforaiance  of  their 
duties  as  required  by  this  act."  or  levying  any  pilot  charges  upon  any  "steamer 
piloted  as  herein  provided,"  with  a  proviso  that  nothing  therein  shall  be  con- 
strued to  annul  or  affect  any  state  regulation  requiring  vessels  entering  or  leav- 
ing port  "other  than  coastwise  steam  vessels"  to  take  a  state  pilot.^'''^ 


for  the  licensing  of  pilots  of  si-eani  ves- 
sels (§  9.  Ninth,  Id.  67).  In  Steamship 
Co.  z:  Joliffe.  2  Wall.  450,  459,  17  L.  Ed. 
805,  it  was  contended  that  the  statute  of 
the  state  of  California  of  :\Iay  20,  1861, 
providing  for  port  pilots  at  San  Francisco, 
was  in  conflict  with  this  act;  but  the 
court  took  the  contrary  view,  holding 
that  the  federal  law  did  not  relate  to  port 
pilots."  Anderson  z:  Pacific  Coast  Steam- 
ship Co.,  225  U.  S.  187,  56  L-  Ed.  1047,  32 
S.    Ct.   626. 

"The  Acts  of  1852  and  1866  were  re- 
pealed by  the  Act  of  Feljruary  28,  1871, 
chap.  100  (16  Stat,  at  L.  440),  the  pro- 
visions of  which  were  re-enacted  in  title 
52  of  the  Revised  Statutes.  This  act  pre- 
scribes general  regulations  with  respect 
to  the  licensing  of  pilots  of  steam  vessels 
(§§  14,  18;  Rev.  Stat.  4438.  4442,  U.  S. 
Comp.  Stat.  1901,  pp.  3034,  3037),  similar 
to  those  of  the  Act  of  1852.  The  require- 
ments as  to  the  port  pilotage  of  coastwise 
seagoing  steam  vessels  were  set  forth 
in  §  51."  Anderson  v.  Pacific  Coast 
Steamship  Co..  225  U.  S.  187,  56  L.  Ed. 
1047,   32    S.    Ct.    626. 

403-17a.  Coastwise  seagoing  steam  ves- 
sels.— "It  will  be  observed  that  the  re- 
quirement of  §  51  of  the  Act  of  1871  (R. 
S.,  §  4401),  as  to  the  piloting  of  coastwise 
seagoing  steam  vessels,  is  limited  and  ex- 
plicit. It  is  that  'every  coastwise  seago- 
ing steam  vessel  subject  to  the  navigation 
laws  of  the  United  States  and  to  the  rules 
and  regulations  aforesaid,  not  sailing  un- 
der register,  shall,  when  under  way,  ex- 
cept on  the  high  seas,  be  under  the  con- 
trol and  direction  of  pilots  licensed  by 
the  inspectors  of  steamboats.'  This  cov- 
ers port  pilotage,  for  it  relates  to  such 
vessels  'when  under  way,  except  on  the 
high  seas;'  and  it  applies  only  to  those 
'not  sailing  under  register.'  "  Anderson 
c'.  Pacific  Coast  Steamship  Co.,  225  U.  S. 
187,   199,   56   L.    Ed.    1047,   32    S.    Ct.   626. 


"At  the  time  of  the  passage  of  the  Act 
of  1871,  there  were  coastwise  seagoing 
steam  vessels  sailing  under  register  and 
having  this  privilege  of  touching  at  for- 
eign ports,  and  also  coastwise  seagoing 
steam  vessels,  which  were  enrolled  and 
licensed,  not  sailing  under  register.  It 
was  with  respect  to  the  vessels  of  the  lat- 
ter sort  that  congress  imposed  the  re- 
quirement of  §  51  to  use  federal  pilots." 
Anderson  v.  Pacific  ^oast  Steamship  Co., 
225  U.  S.  187,  56  L.  Ed.  1047,  32  S.  Ct. 
S26. 

"The  reason  for  the  distinction  may  be 
found  in  the  fact  thai  the  registered  ves- 
sels, under  the  conditions  of  trade  then 
existing,  would  presumably  be  engaged  in 
the  longer  voyages,  touching  at  foreign 
ports  where  federal  pilots  would  not 
avail,  and  at  domestic  ports,  for  all  of 
which  the  ship's  pilot  might  not  hold  a 
federal  license;  and,  as  congress  did  not 
create  local  federal  establishments  for 
port  pilotage,  it  was  evidently  deemed 
unwise  to  compel  registered  vessels  in 
entering  and  leaving  ports  to  be  under 
the  control  of  federal  pilots."  Anderson 
c'.  Pacific  Coast  Steamship  Co..  225  U.  S. 
187.  56  L.   Ed.  1047.  32   S.   Ct.  626. 

"Certainly  the  distinction  was  made; 
and  the  necessary  eflfect  of  the  limitation 
of  the  requirement  was  to  exempt  the 
coastwise  seagoing  steam  vessels  which 
did  sail  under  register,  from  its  terms." 
Anderson  z:  Pacific  Coast  Steamship 
Co.,  225  U.  S.  187,  56  L.  Ed.  1047,  32  S. 
Ct.   626. 

".\s  these  registered  vessels  were  free 
from  this  federal  regulation,  they  would 
be  under  no  compulsion  whatever  as  to 
port  pilotage  save  by  virtue  of  the  opera- 
tion of  state  laws.  And  it  is  an  inevitable 
conclusion,  on  considering  the  prior  his- 
tory of  pilotage  regulations  in  this  coun- 
try and  the  policy  which  has  been  main- 
tained   with    respect    to    the    exercise    of 


951 


403 


PILOTS. 


Vol.  IX. 


state  authority,  that,  as  congress  did  not 
see  fit  to  require  federal  pilots,  it  left  the 
regulation  of  port  pilotage  as  to  such  ves- 
sels to  the  states."  Anderson  v.  Pacific 
Coast  Steamship  Co..  225  U.  S.  187,  56  L. 
Ed.    1047,    32    S.    Ct.    626. 

"It  is  contended,  however,  that  al- 
though the  employment  of  federal  pilots 
was  not  made  compulsory  for  coastwise 
seagoing  steam  vessels  sailing  under  reg- 
ister in  entering  and  leaving  ports,  still 
they  had  an  option  to  use  such  pilots,  and 
if  in  fact  such  a  vessel  was  piloted  by  a 
federal  pilot,  she  could  not  be  required  to 
take  a  state  pilot.  The  argument  is  based 
on  the  following  provisions  of  §  51  (now 
found  in  Rev.  Stat.,  §  4444) :  'And  no 
state  or  municipal  government  shall  im- 
pose upon  pilots  of  steam  vessels  herein 
provided  for  any  obligation  to  procure  a 
state  or  other  license  in  addition  to  that 
issued  by  the  United  States,  nor  other 
regulation  which  will  impede  such  pilots 
in  the  performance  of  their  duties,  as  re- 
quired by  this  act;  nor  shall  any  pilot 
charges  be  levied  by  any  such  authority 
upon  any  steamer  piloted  as  herein  pro- 
vided, *  *  *.'  This  language  gives  no 
support  to  the  contention."  Anderson  t'. 
Pacific  Coast  Steamship  Co.,  225  U.  S. 
187.  56  L.  Ed.  1047,  32  S.  Ct.  626. 

"The  federal  requirement  as  to  port 
pilotage  of  coastwise  seagoing  steam  ves- 
sels was  applicable 'only  to  those  'not 
sailing  under  register;'  as  to  those  which 
sailed  under  register,  there  were  no  port 
pilots  provided  for,  and  the  regulation  of 
pilotage  in  the  case  of  such  vessels  en- 
tering and  leaving  the  state  ports  was 
left  to  the  states.  The  fact  that  a  ves- 
sel of  this  sort  had  on  board  a  pilot  hold- 
ing a  federal  license  when  the  services  of 
such  a  pilot  were  not  required  by  the 
federal  law  did  not  oust  the  state  of  the 
power  to  compel  the  use  of  a  state  pilot." 
Anderson  v.  Pacific  Coast  Steamship  Co., 
225  U.  S.  187,  56  L.  Ed.  ]047,  32  S.  Ct. 
626. 

"Nor  was  the  proviso  in  §  51  of  the 
Act  of  1871  (now  the  last  sentence  of 
Rev.  Stat.,  §  4444)  a  restriction  of  this 
state  authority.  This  proviso  was  as 
follows:  'Provided,  however,  that  noth- 
ing in  this  act  shall  be  construed  to  annul 
or  afifect  any  regulation  established  by 
the  laws  of  any  state  requiring  vessels 
entering  or  leaving  a  port  in  any  such 
state,  other  than  coastwise  steam  ves- 
sels, to  take  a  pilot  duly  licensed  or  au- 
thorized by  the  laws  of  such  state,  or  of 
a  state  situate  upon  the  waters  of  such 
state.'  "  Anderson  v.  Pacific  Coast  Steam- 
ship Co.,  225  U.  S.  187,  56  L.  Ed.  1047,  32 
S.    Ct.   626. 

"Manifestly,  this  did  not  enlarge  the 
scope  of  the  requirement  as  to  federal 
pilotage  contained  in  the  preceding  por- 
tion   of    the    section.      The    words    'other 


than  coastwise  steam  vessels'  did  not 
mean  that  the  state  could  not  require  port 
pilots  for  coastwise  seagoing  steam  ves- 
sels sailing  under  register.  For  this 
would  be  to  impute  to  congress  the  in- 
tent to  withdraw  from  the  state  the 
power  to  act  in  the  cases  omitted  from 
federal  regulation."  Anderson  v.  Pacific 
Coast  Steamship  Co.,  225  U.  S.  187,  56 
L.   Ed.  1047,  32  S.  Ct.  626. 

"Even  on  the  construction  of  the  stat- 
ute for  which  the  appellees  contend,  it  is 
conceded  that  'a  coastwise  steam  vessel 
sailing  under  register,  which  is  not  piloted 
by  a  federal  pilot,  may  be  compelled  by 
the  state  to  take  a  state  pilot  when  en- 
tering or  leaving  port.'  And  if  in  anj'- 
case  the  vessel  might  be  forced  to  take 
a  pilot  under  the  state  law,  it  would 
necessarily  follow  that  it  is  not  excluded 
by  the  proviso  from  the  operation  of  that 
law."  Anderson  v.  Pacific  Coast  Steam- 
ship Co..  225  U.  S.  187,  56  L.  Ed.  1047,  32 
S.    Ct.   626. 

"The  natural  interpretation  of  the 
proviso  is  that  it  was  intended  to  prevent 
misapprehension  as  to  interference  with 
local  rules;  to  declare  the  continued  ef- 
ficacy of  those  rules  when  not  in  conflict 
with  the  federal  authority,  and  not  to  in- 
troduce an  independent  limitation  of  state 
power  over  port  pilotage  with  respect  to 
registered  steam  vessels,  where  the  fed- 
eral control  had  not  been  asserted.  The 
enacting  clause  and  the  proviso  are  to  be 
read  together  'with  a  view  to  carry  into 
effect  the  whole  purpose  of  the  law.' 
White  V.  United  States,  191  U.  S.  545,  551, 
48  L.  Ed.  295,  24  S.  Ct.  171."  Anderson 
V.  Pacific  Coast  Steamship  Co.,  225  U.  S. 
187,  56  L.   Ed.   1047,  32   S.   Ct.  626. 

"So  read,  the  words  'other  than  coast- 
wise steam  vessels'  must  be  deemed  tO' 
refer  to  those  'not  sailing  under  regis- 
ter,' to  which  the  requirement  of  federal 
pilots  applied.  The  same  meaning  must 
be  ascribed  to  this  clause  as  it  now  ap- 
pears in  §  4444  of  the  Revised  Statutes, 
taken,  as  it  must  be,  in  connection  with 
§  4401."  Anderson  v.  Pacific  Coast  Steam- 
ship Co.,  225  U.  S.  187,  56  L.  Ed.  1047,  32 
S.    Ct.   626. 

"The  provisions  of  the  Political  Code 
of  the  state  of  California,  set  forth  in  the 
certificate,  do  not  apply  to  coastwise 
seagoing  steain  vessels  'not  sailing  un- 
der register.'  and  are  not  in  conflict  with 
the  statutes  of  the  United  States.  Their 
enforcement  is  simply  a  recognition  of 
the  limits  which  congress  has  thus  far  set 
to  the  exercise  of  the  unquestioned  fed- 
eral power."  Anderson  v.  Pacific  Coast 
Steamship  Co..  225  U.  S.  187,  56  L.  Ed. 
1047,   32    S.    Ct.    626. 

"The  criterion  is  not  whether  the  stops 
of  registered  vessels  at  foreign  ports  may 
be  deemed  en  route  between  domestic 
ports,  and  is  not  to  be  found  in  the  length 


952 


Vol.  IX.  PLEA  IN  ABATEMENT.  445-456 

PINE  LAND.— See  ante,  Indians,  p.  641. 

PIRACY. — See  the  title  Piracy,  vol.  9,  p.  411,  and  references  there  given. 

PLACE  OF  TRIAL.— See  post,  Venuk. 

PLACER  MINES.— See  ante,  Mines  and  Minerals,  p.  865. 


PLEADING. 

XII.  Particular  Pleadings,  953. 
F.  Answer,  953. 

2.  Under  Codes  and  Practice  Acts,  953. 

b.  Form,    Requisites   and    Sufficiency,   953. 
(1)   General  or  Specific  Denial,  953. 
(a)   Necessity,  953. 

XV.  Issues  and  Proof,  953. 

C.  Correspondence  of  Allegata  and  Probata,  953. 

CROSS   REFERENCES. 

See  the  title  Pleading,  vol.  9,  p.  418,  and  references  there  given. 

XII.   Particular  Pleadings. 

F.  Answer — 2.  Under  Codes  and  Pr.\ctice  Acts — b.  Fonn,  Requisites  and 

Sufficiency — (1)    General  or  Specific  Denial — (a)   A'ecessit\'. — See  note  87. 

XV.  Issues  and  Proof. 
C.    Correspondence  of  Allegata  and  Probata. — See  note  57. 

PLEA  IN  ABATEMENT.— See  ante.  Abatement,  Revival  and  Survival, 
p.  1. 

of   such    stops    or   in    the   relative   amount  linquent   special   assessment,   that   defend- 

of   foreign   trade.      The    statute   made   the  ants"  property  was  contiguous  to  the  im- 

distinction,    in    the    light     of      the      well-  provement,  must  be  taken  as  true,  where 

known   conditions   of  trade   which  existed  not  denied  by  the  answer.     Decree   (Ari^. 

at    the    time    of    its    enactment,    between  1907),      89      P.     501,   affirmed.      English   f. 

coastwise    seagoing    steam     vessels,      not  Griffith,  214  U.   S.  359,  53  L.   Ed.   1030,  29 

sailing    under    register,    and    those    which  S.  Ct.  658. 

did  sail  under  register.     Whether  or  not  456-57.     Proof    unnecessary    of    matters 

it  is  wise  to  establish  federal  rules  as  to  admitted  by  pleadings. — Proof  in  support 

port    pilotage    for    the    registered    vessels  of    an    averment    that    the    requisite    juris- 

exempted  from   this   regulation  is  a  ques-  dictional  amount  is  involved  need  not  be 

tion   for   congress   to  determine."     Ander-  offered   where    the     defendant      does      not 

son   7'.    Pacific    Coast    Steamship    Co.,    225  formally  plead   to   the   jurisdiction.    Judg- 

U.  S.  187,  56  L.  Ed.  1047,  32  S.  Ct.  626.  ment.  Louisville  &  N.  R.  Co.  z:  Bitterman 

445-87.  Uncontroverted  material  allega-  (1906),  144  F.  34,  75  C.  C.  A.  192,  affirmed. 

tions  taken  as  true. — An  allegation  in  the  Bitterman  v.   Louisville,   etc.,    R.   Co.,   207 

complaint    in    an    action    to    collect    a    de-  U.   S.   205,   52  L.   Ed.  171,  28   S.   Ct.   91. 

953 


465-467  POLARISCOPIC   TEST.  Vol.  IX. 


PLEDGE  AND  COLLATERAL  SECURITY. 

IV.  Rights,  Duties  and  Liabilities  of  Parties,  954. 
D.  Right  of  Indorser  to  Enforce  Collateral,  954. 

CROSS   REFERENCES, 

See  the  title  Pledge  and  Collateral  Security,  vol.  9,  p.  453,  and  refer- 
ences there  given. 

In  addition,  as  to  a  stockbroker  carrying  shares  on  the  margin  being  a 
pledgee,  see  ante.  Brokers,  p.  212. 

As  to  security  for  advances,  see  ante,  Bankruptcy,  p.  168. 

IV.  Rights,  Duties  and  Liabilities  of  Parties. 

D.  Right  of  Indorser  to  Enforce  Collateral. — The  right  of  the  indorser 
of  a  note  outstanding  and  past  due  to  enforce  the  collateral  held  by  him  to  se- 
cure him  against  liability  on  his  endorsement,  consisting  of  a  note  secured  by 
a  trust  deed,  is  a  matter  solely  between. him  and  the  pledgors. ^^^ 

POLARISCOPIC  TEST.— See  note  a. 

465-19a.     Right   of   indorser   to    enforce  lish    their    claim    that    the    collateral    had 

collateral. — Southern  Pine  Lumber  Co.  v.  been  extinguished  by  payment.    Judgment 

Ward,  208  U.   S.  126,  52  L.   Ed.  420,  28   S.  (1906),    85    P.    459,    16    Okl.    131,    affirmed. 

Ct.  239.     See,  also,  ante,  BILLS,  NOTES  Southern   Pine  Lumber  Co.  v.  Ward,  208 

AND  CHECKS,  p.  204.  U.   S.   126,  52  L.  Ed._  420,  28  S.  Ct.  239. 

The    purchasers    of    the    property    cov-  467-a.     Polariscopic     test. — See     Ameri- 

ered  by  the  trust  deed,  under  a  sale  made  can  Sugar  Refin.  Co.  v.  United  States,  211- 

in   attachment  proceedings,    are    not   con-  U.  S.  155,  53  L.  Ed.  129,  29  S.  Ct.  89.     See, 

cerned,  where  they  have  failed  to  estab-  also,  post,  REVENUE  LAWS. 

954 


Vol.  IX.  POLICE  POWER. 


POLICE  POWER. 

I.  Police  Power  Defined,  959. 
II.  Where  Vested,  959. 

A.  As  between  the  States  and  the  United  States.  959. 

1.  Generally  in  the  States,  959. 

4.  Police  Power  of  Congress,  959. 

5.  Exclusive  and  Concurrent  Powers,  959. 

a.  Exclusive  Powers,  959. 

(5)  Neither  Government  to  Control  the  Discretion  nor  to 
Interfere  with  the  Exercise  of  Acknowledged  Pow- 
ers by  the  Other,  959. 

B.  As  between  the  Legislative  and  Judicial  Departments.  960. 

C.  As  between  the  Legislature  and   Subordinate   Agencies  of  the   State ; 

Delegation  of  Powers.  960. 

III.  General  Nature  and  Extent  of  the  Police  Power,  961. 
V.  Constitutional  Limitations  upon  the  Police  Power,  962. 

A.  Generallv  as  to  the  Supremacy  of  the  Federal  Constitution  and  Laws. 
962.  ' 

C.  As  Restricted  bv  the  Interstate  Commerce  Clause  of  the  Constitution. 

962. 

1.  Generally,  962. 

2.  Exclusion  of  Dangerous  and  Infected  Articles,  Diseased  Persons 

and  Animals,  Paupers.  Criminals,  etc.,  962. 

D.  As  to  Contract  and  \'ested  Rights,  962. 

1.  As  to  Vested  Rights,  962. 

3.  A   Continuing  Power;    Can   Not   Be  Bargained  Away,  962. 

a.  Generally,   962. 

b.  Limitations  of  Doctrine,  963. 

(2)  Doctrine    Not    Universally    True    as    to    Matters    Em- 

braced   within   the   Largest   Definition   of   the   Police 
Power.  963. 

(3)  But  Even  Charter  and  Contract  Rights  Subject  to  Po- 

lice  Regulation.  963. 

E.  As  Restricted  by  the  Fourteenth  Amendment,  965. 

1.  Fourteenth   Amendment   Not   Designed   to   Interfere   with   Legiti- 

mate Exercise  of  the  Police  Power,  965. 

2.  Respects    Wherein    Police    Power  Is  Restricted    by    Fourteenth 

Amendment,  965. 

c.  Regulations    Must    Be    Reasonable    and    Bona    Fide,    Having 

Some  Substantial  Relation  to  Ostensible  Object,  etc.,  965. 

d.  Judicial  Review,  966. 

VI.  Application  of  the  Police  Power  to  Particular  Subjects,  967. 
.  A.  Regulations  Affecting  Property,  967. 

2.  Regulation  of  the  L'se  and  Enjoyment  of  Property,  967. 

3.  Exercise  of  Power  Not  Hampered  by  Obligation  to  Make  Com- 

pensation for  Injuries  Sustained,  968. 

4.  As  to  the  Regulation  and  Control  of  Contract  and  Charter  Rights, 

968. 

5.  As   to   Contracts   between   Individuals,   968. 

6.  Limiting  Height  of  Buildings,  968. 

955 


POLICE  POWER.  Vol.  IX. 

7.  Uncompensated    Removal    o'f    Tracks,    Pipes,    Bridges,    Tunnels, 

Paving  of  Tracks,  etc.,  968. 

8.  Destruction  of  Property  in  the  Interest  of  Public  Safety,  or  Prop- 

erty Kept,  Sold  or  Used  in  Violation  of  Law,  969. 
B.  Regulation  of   Courts ;    Jurisdiction,   Forms  of   Procedure,   Remedies, 
Defenses,  Measure  of  Damages,  etc.,  969. 

1.  In  General,  969. 

2.  Torts,  Actions,  Damages,  etc.,  969. 

D.  Prevention  and  Punishment  of  Crime,  Ex  Post  Facto  Laws,  970. 

E.  Public  Morals,  etc.,  970. 

1.  Gambling;  Option  and  Margin  Contracts,  etc.,  970. 

2.  Disorderly  Houses,  etc.,  970. 

F.  Highways ;   Establishment,   Care,   Maintenance,   etc. ;   Ferries,   Canals, 

etc.,  970. 

G.  Waters  and  Watercourses ;  Navigable  Waters,  970. 

1.  In  General,  970. 
H.  Animals,  971. 
I.  Fish  and  Game,  971. 
J.  Public  Health,  971. 

6.  Food  Stuffs,  971. 

7.  Tenement  Houses,  971. 

8.  Cemeteries,  972. 

K.  Regulation  of  Business,  Trade,  Occupation  or  Profession,  972. 

1.  Right  of    Citizens    to    Pursue    Lawful   Occupations,    Enter    into 

Contracts,   Acquire   and   Dispose   of    Property,   upon   Terms   of 
Equality,  972. 

2.  Right  to  Be  Exercised  in  Subordination  to  Law,  972. 

3.  As  to  Power  of  State  to  Regulate,  972. 

a.  Generally,  972. 

b.  Business  Subject  to  Regulation ;    Regulations  to  Be  Imposed, 

973. 
(1)   State  to  Select,  973. 
(3)    Doubtful  and   Immoral   Vocations,  973. 

d.  Limitations  of  Power,  973. 

(1)  Must  Be  Reasonable;    Arbitrary  Interference  Not  Per- 

missible, 973. 

(2)  Regulation  ]\Iay  Extend  to  Suppression,  974. 

(3)  As   to   the     Retrospective    Operation    of     Regulations; 
Interest   or   Estate    in    Profession,    Business,    etc.,   974. 

4.  Particular  Regulations,  974. 

a.  Power  to  Prescribe  Qualifications  for  Persons  Seeking  to 
Enter  the  Learned  Professions  or  Occupations  Requiring 
Peculiar  Knowledge  or  Skill,  974. 

c^.  Use  of  Name  or  Portrait  of  Individual  for  Advertising 
Purposes,  976. 

c^.  Advertising  in  or  on  Public  Conveyances,  in  Streets,  High- 
ways,  and   Other   Public   Places,   976. 

e.  Suppression    of    Monopolies    and    Combinations    in    Restraint 

of  Trade,  976. 
h.  Inspection  Laws,  976. 
j.  Licenses;    Occupation  Taxes,  97'6. 

k.  Regulation  of  the  Relation  of  Master  and  Servant;    Protec- 
tion of  Employees,  etc.,  977. 

(1)    Generally,   977. 

(3)   Protection    of    Laborer    against    Himself;     Legislature 

95G 


Vol.  IX.  POLICE  POWER. 

Takes    Notice    That    Employer    and    Employee    Not 
upon  an  Equal  Footing,  977. 
(5^)   Civil    Liability   for    Death  or   Injury   of    Employee, 
Generally,  978. 

(6)  Abolishing  or  Modifying  the  Doctrine  of  Fellow  Serv- 
ants, 978. 

(6^'^)   Abolishing    or    Modifying   Doctrine   of    Comparative 
and  Contributory   Negligence,  978. 

(7)  Securing  Payment  of  Wages  Promptly  and  in  Money, 

978. 

(a)  Generally,  978. 

(8)  Limiting  Days  and  Hours  of  Employment,  978. 

(b)  Eight-Hour  Laws,  978. 

(9)  Prohibiting    the    Discharge    of    Employees    because    of 

Membership   in   Labor   Organization,   978. 
1.  Imitations  and  Adulterations,  978. 
m.  Fraudulent   'and    Voluntary    Conveyances,    979. 

(1)  Generally.  979. 

(2)  Sales  in  Bulk  Acts,  979. 

n.  Recjuiring  Public   Service  Companies  to  Discharge  Duties  to 
the  Public,  979. 

(1)  Generally,  979. 

(2)  Forbidding   Contracts   Restricting  or   Modifying   Com- 
mon-Law or   Statutory   Liability,   980. 

5.  Application  of   Principles  to  Particular  Business,  Trade,  Occupa- 
tion or  Profession,  981. 

a.  Regulation  of  the  Import  Trade,  981. 

b.  Common  Carriers,  981. 

c.  Regulation  of  Railroads,  981. 

d.  Street  Railways,  981. 

e.  Telegraphs   and   Telephones,   981. 

f.  Warehouses    and   Elevators,   982. 

g.  Port   and  Harbor   Regulations,   982. 
h.  Pilots  and   Pilotage,  982. 

i.  Wharves  and  Wharfage,  982. 

j.  Insurance,  982. 

1.  Sale  of  Drugs,  Poisons,  etc.,  983. 
m.  Manufacture  and  Sale  of  Intoxicating  Liquors,  983. 

o.  Manufacture  and  Sale  of  Food  Stuffs,  983. 

r.  Hawkers,   Peddlers,   Hucksters,  etc.,  983. 

s.  Operation  of  Mines,  983. 

V.  Laundries,  983. 

X.  Gift   Enterprises,  983. 

y.  Banks  and  Banking,  984. 

z.  Brokerage  and  Commission  Business ;   Dealing  in  Futures,  etc., 
984. 
aa.  Boards  of  Trade  and  Stock  Exchanges,  984. 
bb.  Sale  of   Patented  Articles,   Patent   Rights,   etc.,  985. 
cc.  Pool  Rooms,  985. 
dd.  Advertising,  985. 
ee.  Drumming  and   Soliciting    on    Railway    Trains,  in    or    about 

Stations,    Railway    Premises,    etc.,   985. 
ff.  Manufacture  and  Sale  of  Paints,  985. 
gg.  Gas  and  Gas  Companies,  986. 
hh.  Oil  and  Other  Illuminating  Fluids,  986. 

957 


POLICE  POWER.  Vol.  IX. 

ii.  Powder  and  Other  Explosives,  987. 
jj.  Waters,  Water  Companies,  and  ^^'aterworks,  987. 
L.  Regulation  of  Rates,  987. 

1.  Power  to  Regulate,  987. 

a.  In  General,  987. 

b.  Power  to  Prescribe  Rates  a  Legislative  Function,  988. 

c.  Delegation  of  Power,  988. 

d.  Exercise  of  the  Power  with  Respect  to  Particular  Corpora- 

tions, 989. 

(1)  Railroads  and  Other  Public  Service  Companies,  989. 

(2)  Stockyards,  989. 

(3)  Grain  Elevators,  989. 

(4)  Street  Railways,  989. 

(5)  Telegraphs  and  Telephones,  989. 

(6)  Water  Companies,  989. 

(7)  Turnpikes  and  Tollroads,  989. 

1^.  Right  of  Interested  Parties  to  Notice  and  Hearing,  989. 

a.  Before  Establishment  of  Rate,  989. 

b.  After  Establishment  of  Rate,  989. 
V/a..  Remedy  against  Unjust  Rates,  990. 

2.  Reasonableness  of  Rates,  990. 

a.  Right  of  Courts  to  Interfere,  990. 

c.  Basis  for  Calculating  Reasonableness  of  Rates,  992. 

(1)  In  General,  992. 

{\}i)  Valuation  of  Property,  993. 
(1^)  Good  Will,  993. 
(IKO  Franchises,  993. 
(1^)   Capitalization,  993. 

(2)  Original  Cost,  993. 
(21/0   Cost  of  Reproduction.  994. 

(3)  Capacity  to  Pay  Dividends  as  a  Factor,  994. 
(3^)   Previous  Income,  994. 

(4)  Valuation  of  Property  for  Taxation,  994. 
M.  Conservation  of  Natural  Recources,  994. 

1.  Power  of  State  in  General,  994. 

2.  Power  as  Applied  to  Particular  Subjects,  995. 

N.    Control  of  Counties,   IMunicipal  Corporations   and  Other  Municipal 
Subdivisions,  995. 

O.  Separation  of  the  Races  in  Schools,  Public  Conveyances,  etc.,  995. 

P.  Control  of  Coin  or  Currency,  995. 

CROSS  REFERENCES. 
See  the  title  Police  Power,  vol.  9,  p.  468,  and  references  there  given. 
In  addition,  see  ante.  Animals,  p.  27;  Carriers,  p.  216;  Civil  Rights,  p. 
236;  Constitutional  Law,  p.  264;  Corporations,  p.  381;  Criminal  Law,  p. 
434;  Crossings,  p.  454;  Damages,  p.  455;  Drains  and  Sewers,  p.  472;  Due 
Process  of  Law,  p.  475 ;  Eminent  Domain,  p.  537 ;  -Fish  and  Fisheries,  p. 
583;  Game  and  Game  Laws,  p.  605;  Gas,  p.  607;  Health,  p.  617;  Inspection 
Laws,  p.  670;  Insurance,  p.  674;  Interstate  and  Foreign  Commerce,  p. 
689;  Intoxicating  Liquors,  p.  803;  Labor,  p.  816;  Licenses,  p.  826;  Lot- 
teries, p.  836;  Monopolies  and  Corporate  Trusts,  p.  874;  Municipal  Corpo- 
rations, p.  895;  Navigable  Waters,  p.  914;  Ordinances,  p.  928;  Physicians 
and  Surgeons,  p.  949;  Pilots,  p.  950;  post.  Railroads;  Street  Railways; 
Streets  and  Highways;  Sundays  and  Holidays;  Telegraphs  and  Tele- 
phones ;  Trees  and  Timber  ;  Turnpikes  and  Tollroads  ;  Water  Com- 
panies AND  Waterworks;  Waters  and  Watercourses;  Wharves  and 
Wharfingers. 

958 


Vol.  IX. 


POLICE  POWER. 


472-477 


See  notes  1,  2. 


I.     Police   Power  Defined. 
II.  Where  Vested. 


A.  As  between  the  States  and  the  United  States — 1.  Gexeil\lly  ix  the 
States. — See  note  3. 

4.  Police  Power  of  Congress. — See  note  6. 

5.  Exclusive  axd  Coxcurrent  Powers — a.  Exclusive  Pozuers — (5)  Neither 
Government  to  Control  the  Discretion  Xor  to  Interfere  zdth  the  Exercise  of 
Acknozvledged  Pozvers  by  the  Other. — See  note  10. 

State  Not  to  Impede  the  Exercise  of  Federal  Powers.— See  note  12. 


472-1.  Police  power  defined. — Lemieux 
V.  Young,  211  U.  S.  489,  53  h.  Ed.  295,  29 
S.  Ct.  174;  Mutual  Loan  Co.  v.  Martell, 
222  U.   S.  225,  56  L.  Ed.   175,  32  S.  Ct.  74. 

473-2.  Same — In  its  broadest  sense. — In 
a  sense  the  police  power  is  but  another 
name  for  the  power  of  government.  Mu- 
tual Loan  Co.  v.  Martell,  222  U.  S.  225, 
56   L.    Ed.    175,   32    S.    Ct.   74. 

473-3.  Where  vested — Generally  in  the 
states. — Speaking  generally,  the  police 
power  is  reserved  to  the  states  for  there 
is  in  the  constitution  no  grant  thereof  to 
congress.  Keller  v.  United  States,  213 
U.  S.  138,  53  L.  Ed.  737,  29  S.  Ct.  470; 
Patterson  v.  Kentucky,  97  U.  S.  501,  503. 
24  L.  Ed.  1115;  Cincinnati,  etc.,  R.  Co.  v. 
Connersville.  218  U.  S.  336,  54  L.  Ed. 
1060,    31    S.    Ct.    93. 

Among  the  powers  of  the  states,  not 
surrendered,  which  power  therefore  re- 
mains with  the  state,  is  the  power  to  so 
regulate  the  relative  rights  and  duties  of 
all  within  its  jurisdiction  as  to  guard  the 
public  morals,  the  public  safety,  and  the 
public  health,  as  well  as  to  promote  the 
public  convenience  and  the  common  good; 
and  that  it  is  with  the  state  to  devise  the 
means  to  be  employed  to  such  ends,  tak- 
ing care  always  that  the  means  devised 
do  not  go  beyond  the  necessities  of  the 
case,  have  some  real  or  substantial  rela- 
tion to  the  objects  to  be  accomplished, 
and  are  not  inconsistent  with  its  own 
constitution  or  the  constitution  of  the 
United  States.  House  v.  Mayes,  219  U. 
S.  270,  55   L.   Ed.  213,  31   S.   Ct.  234. 

Such  a  power  in  the  state,  generally 
referred  to  as  its  police  power,  is  not 
granted  by  or  derived  from  the  federal 
constitution,  but  exists  independently  of 
it,  by  reason  of  its  never  having  been 
surrendered  by  the  state  to  the  general 
government.  House  f.  Maj-es,  219  L^.  S. 
270,  55   L.   Ed.  213,  31   S.   Ct.  234. 

475-6.  Police  power  of  congress.— The 
police  power  of  congress  in  the  District 
of  Columbia  is  substantially  the  same  un- 
der the  fifth  amendment  of  the  federal 
constitution  as  that  which  may  be  exer- 
cised by  the  states  under  the  limitations 
of  the  fourteenth  amendment.  District  of 
Columbia  z:  Kraft,  35  App.  D.  C.  253, 
writ  of  certiorari  denied  in  Kraft  v.  Dis- 


trict of  Columbia,  218  U.  S.  673,  54  L.  Ed. 
1205,  31  S.  Ct.  223. 

476-10.  Neither  government  to  inter- 
fere with  the  exercise  of  the  acknowledged 
powers  of  the  other. — Although  there 
may  be  room  for  controversy  as  to 
whether  a  state  statute  is  or  was  neces- 
sary, yet  if  it  can  not  be  said  that  it  was 
so  unreasonable  as  to  justify  the  court  in 
adjudging  that  it  is  merely  an  arbitrary 
exercise  of  power  and  not  germane  to  the 
objects  w^hich  the  legislature  evidently 
had  in  view,  it  is  a  valid  enactment  and 
can  not  be  declared  unconstitutional  by 
the  federal  courts.  Chicago,  etc.,  R.  Co. 
V.  Arkansas,  219  U.  S.  453,  55  L.  Ed.  290, 
31  S.  Ct.  275;  Waters-Pierce  Oil  Co.  v. 
Deselms,  212  U.  S.  159,  53  L.  Ed.  452.  29 
S.  Ct.  270;  McLean  v.  Arkansas,  211  U. 
S.  539,  548,  53  L.  Ed.  315,  29  S.  Ct.  206; 
Chicago,  etc.,  R.  Co.  v.  McGuire,  219  U. 
S.  549,  55  L.  Ed.  328,  31  S.  Ct.  259;  Brod-' 
nax  V.  Missouri,  219  U.  S.  285,  55  L.  Ed. 
219,   31   S.   Ct.   238. 

And  although  the  means  emploj^ed  by 
a  state  to  accomplish  an  object  which  it 
is  entitled  to  accomplish  may  be  deemed 
unwise  and  inexpedient  and  not  the  best 
or  most  effective  which  might  have  been 
employed,  they  will  not  be  condemned  or 
disregarded,  unless  they  have  no  real  or 
substantial  relation  to  that  object.  Chi- 
cago, etc.,  R.  Co.  z:  Arkansas,  219  U.  S. 
453.    55    L.    Ed.    290.    31    S.    Ct.   275. 

477-12.  States  not  to  impede  the  exer- 
cise of  federal  powers. — Definitions  of  the 
police  power  must  be  taken  subject  to  the 
condition  that  the  state  can  not,  in  its 
exercise,  for  any  purpose  whatever,  en- 
croach upon  the  powers  of  the  general 
government,  or  rights  granted  or  secured 
by  the  supreme  law  of  the  land.  Keller 
V.  United  States.  213  U.  S.  138,  53  L.  Ed. 
737,  29   S.   Ct.   470. 

It  is  clear  that,  in  principle,  a  state  may 
not  so  exert  its  police  power  as  to  directly 
hamper  or  destroy  a  lawful  authority  of 
the  government  of  the  United  States. 
Flaherty  v.  Hanson,  215  U.  S.  515,  54  L. 
Ed.  307.  30  S.  Ct.  179. 

State  law  requiring  publication  and  reg- 
istry of  federal  internal  revenue  receipts. 
— The  requirement  that  receipts  for  the 
payment   of   the   federal   internal    revenue 


959 


481-483 


POLICE  POWER. 


Vol.  IX. 


B.  As  between  the  Legislative  and  Judicial  Departments. — See  notes 
24,  25. 

C.  As  between  the    Legislature    and    Subordinate    Agencies    of  the 
State;  Delegation  of  Powers. — See  note  28. 


tax  upon  the  business  of  selling  intoxi- 
cating liquors  be  registered  and  published 
at  the  holder's  expense,  which  is  made  by 
N.  D.  Act  of  March  13,  1907,  is  not  a  valid 
exercise  of  the  police  power,  but  is  invalid, 
as  placing  a  direct  burden  upon  the  tax- 
ing power  of  the  federal  government. 
Flaherty  v.  Hanson,  215  U.  S.  515,  54  L. 
Ed.  307,  30  S.  Ct.  179. 

The  state  of  North  Dakota,  on  March 
13,  1907,  enacted  a  law  requiring  a  regis- 
tration and  publication  of  any  receipt, 
stamp,  or  license,  showing  the  payment  of 
the  special  tax  levied  under  the  laws  of 
the  United  States  upon  the  business  of 
selling  distilled,  malted,  and  fermented 
liquor.  Briefly,  the  law  provides  as  fol- 
lows: a  notice  of  the  particulars  con- 
tained in  the  receipt  or  license,  and  other 
details  respecting  the  place  where  the  tax 
receipt  or  license  is  posted,  etc.,  is  re- 
quired to  be  made  for  three  weeks  in  offi- 
cial newspapers,  and  the  fees  for  publica- 
tion are  declared  to  be  the  same  "as  al- 
lowed by  law  for  the  publication  of  other 
legal  notices."  Upon  complaint  made  be- 
fore a  committing  magistrate  for  the 
county  of  Grand  Forks,  state  of  North 
Dakota,  R.  E.  Flaherty,  by  the  name  of 
R.  C.  Flarty,  was  held  to  answer  upon  a 
charge  of  neglecting  to  register  and  pub- 
lish a  government  receipt  for  the  payment 
of  an  internal  revenue  tax  on  the  business 
of  a  retail  dealer  in  malt  liquors.  The 
detention  complained  of  was  asserted  to 
be  illegal  upon  the  ground  that  the  law 
upon  which  the  prosecution  was  based 
was  repugnant  to  the  federal  constitution. 
In  passing  upon  this  contention,  the  court 
said:  "Under  the  construction  placed 
upon  the  statute  by  the  court  below  we 
see  no  escape  from  the  conclusion  that  it 
immediately  and  directly  places  a  burden 
upon  the  lawful  taxing  power  of  the 
United  States,  or,  what  is  equivalent 
thereto,  places  the  burden  upon  the  per- 
son who  pays  the  United  States  tax,  solely 
because  of  the  pajmient  of  such  tax,  and 
wholly  without  reference  to  the  doing  by 
the  person  of  any  act  within  the  state 
which  is  subject  to  the  regulating  author- 
ity of  the  state.  That  the  attempted  ex- 
ertion of  such  a  power  is  repugnant  to  the 
constitution  of  the  United  States  is  so  el- 
ementary as  to  require  nothing  but  state- 
ment. *  *  *  Indeed,  testing  the  provision 
of  the  law  under  consideration  by  the 
criterion  of  reasonableness  which  was  ap- 
plied in  the  cases  relied  upon,  it  becomes 
manifest  that  the  act  here  in  question  is 
directly  antagonistic  to  the  legislation  of 
congress  concerning  the  subject  with 
which   the   state   statute   deals,    since   that 


statute  adds  onerous  burdens  and  condi- 
tions in  addition  to  those  for  which  the 
act  of  congress  provides,  and  which  bur- 
dens are,  therefore,  inconsistent  with  the 
paramount  right  of  congress  to  exert, 
within  the  limits  of  the  constitution,  an 
untrammeled  power  of  taxation."  Flah- 
erty V.  Hanson,  215  U.  S.  515,  527,  54  L. 
Ed.  307,  30  S.  Ct.  179. 

State  interference  with  telegraph  com- 
pany operating  under  federal  statutes. — 
See  post,  "Telegraphs  and  Telephones," 
VI,  K,  5,  e. 

481-24.  Same — Judicial  control  as  to  oc- 
casion, necessity,  means  employed,  etc. — 
Brodnax  v.  Missouri,  219  U.  S.  285,  55  L. 
Ed.  219,  31  S.  Ct.  238;  McLean  v.  Arkansas, 
211  U.  S.  539,  547,  53  L.  Ed.  315,  29  S.  Ct. 
206;  Chicago,  etc.,  R.  Co.  v.  McGuire,  219 
U.  S.  549,  55  L.  Ed.  328,  31  S.  Ct.  259; 
Silz  V.  Hesterberg,  211  U.  S.  31,  53  L.  Ed. 
75,  29  S.  Ct.  10;  Chicago,  etc.,  R.  Co.  v. 
Arkansas,  219  U.  S.  453,  55  L.  Ed.  290,  31 
S.  Ct.  275;  Waters-Pierce  Oil  Co.  v.  Des- 
elms,  212  U.  S.  159,  53  L.  Ed.  453,  29  S.  Ct. 
270.  See,  also,  ante,  "Neither  Government 
to  Control  the  Discretion  Nor  to  Interfere 
with  the  Exercise  of  Acknowledged  Pow- 
ers by  the  Other,"  II,  A,  5,  a,  (5);  post, 
"Judicial  Review,"  V,  E,  2,  d. 

482-25.  Same — Same — Provided  means 
have  some  relation  to  object,  etc. — Mc- 
Lean V.  Arkansas,  211  U.  S.  539,  53  L.  Ed. 
315,  29  S.  Ct.  206;  Chicago,  etc.,  R.  Co.  V. 
Arkansas,  219  U.  S.  453,  55  L.  Ed.  290,  31 
S.  Ct.  275;  Silz  v.  Hesterberg,  211  U.  S.  31, 
53  L.  Ed.  75,  29  S.  Ct.  10;  Chicago,  etc.,  R. 
Co.  V.  McGuire,  219  U.  S.  549,  55  L.  Ed. 
328,  31  S.  Ct.  259;  Brodnax  v.  Missouri, 
219  U.  S.  285,  55  L.  Ed.  219,  31  S.  Ct.  238; 
Waters-Pierce  Oil  Co.  v.  Deselms,  212  U. 
S.  159,  53  L.  Ed.  453,  29  S.  Ct.  270.  See, 
also,  ante,  "Neither  Government  to  Con- 
trol the  Discretion  Nor  to  Interfere  with 
the  Exercise  of  Acknowledged  Powers  by 
the  Other,"  II.  A,  5,  a,  (5);  post,  "Judicial 
Review,"  V,  E,  2,  d. 

483-28.  Same — Delegation  to  commis- 
sioners.— The  power  to  regulate  public 
service  corporations  is  legislative  in  its 
character  and  may  be  exercised  directly 
by  the  legislature  itself.  But  the  legisla- 
ture may  delegate  to  an  administrative 
body  the  execution  in  detail  of  the  legis- 
lative power  of  regulation.  Prentis  v.  At- 
lantic Coast  Line  Co.,  211  U.  S.  210,  225, 
53  L.  Ed.  150,  29  S.  Ct.  67;  Honolulu,  etc.. 
Land  Co.  v.  Hawaii,  211  U.  S.  282,  291,  53  L. 
Ed.  186,  29  S.  Ct.  55;  Reagan  v.  Farmers' 
Loan,  etc.,  Co.,  154  U.  S.  362,  394,  38  L.  Ed. 
1014;  Interstate  Commerce  Comm.  v.  Cin- 
cinnati, etc.,  R.  Co.,  167  U.  S.  479,  494,  43 
L.  Ed.  243. 


960 


Vol.  IX. 


POLICE  POWER. 


483-484 


III.    General  Nature  and  Extent  of  the  Police  Power. 

See  notes  29,  31. 


4S3-29.  General  nature  and  extent  of  the 
police  power. — Primarilj',  governments 
exist  for  the  maintenance  of  social  order. 
Hence,  it  is  that  the  obligation  of  the  gov- 
erntnent  to  protect  life,  liberty,  and  prop- 
erty against  the  conduct  of  the  indifferent, 
the  careless,  and  the  evil  minded  may  be 
regarded  as  b'ing  at  the  very  foundation 
of  the  social  compact.  A  recognition  of 
this  supreme  obligation  is  found  in  those 
exertions  of  the  legislative  power  which 
have  as  an  end  the  preservation  of  social 
order  and  the  protection  of  the  welfare  of 
the  public  and  of  the  individual.  If  such 
legislation  be  reasonably  adapted  to  the 
end  i-n  view,  affords  a  hearing  before  judg- 
ment, and  is  not  forbidden  by  some  other 
affirmative  provision  of  constitutional  law, 
it  is  not  to  be  regarded  as  denying 
due  process  of  law  under  the  provisions 
of  the  fourteenth  -amendment.  Chicago  v. 
Sturges,  222  U.  S.  313,  56  L.  Kd.  215,  32  S. 
Ct.  92. 

The  essential  qualitj^  of  the  police  power 
as  a  governmental  agency  is  that  it  im- 
poses upon  persons  and  property  burdens 
designed  to  promote  the  safety  and  wel- 
fare of  the  general  public.  Lemieux  v. 
Young,  211  U.  S.  489,  53  L.  Ed.  295,  29  S. 
Ct.  174. 

While  it  is  confessedly  difficult  to  mark 
the  precise  boundaries  of  that  power,  or 
to  indicate,  by  any  general  rule,  the  exact 
limitations  which  the  states  must  observe 
in  its  exercise,  the  existence  of  such  a 
power  in  the  states  has  been  uniformly 
recognized  in  the  federal  supreme  court. 
Keller  v.  United  States,  213  U.  S.  138,  53 
L.  Ed.  737,  29  S.  Ct.  470;  Gibbons  v.  Og- 
uen,  9  Wheat.  1,  6  L.  Ed.  23;  Thurlow  v. 
Massachusetts,  5  How.  504,  12  L.  Ed.  256; 
Oilman  v.  Philadelphia,  3  Wall.  713,  18  L. 
Ed.  96;  Henderson  v.  New  York,  92  U.  S. 
259,  23  L.  Ed.  543;  Railroad  Co.  v.  Husen, 
95  U.  S.  465,  24  L.  Ed.  527;  Beer  Co.  v. 
Massachusetts,  97  U.  S.  25,  24  L.  Ed.  989. 

The  federal  supreme  court  has  said  that 
"the  power,  whether  called  police,  gov- 
ernmental, or  legislative,  exists  in  each 
state,  by  appropriate  enactments  not  for- 
bidden by  its  own  constitution  or  by  the 
constitution  of  the  United  States,  to  reg- 
ulate the  relative  rights  and  duties  of  all 
persons  and  corporations  within  its  juris- 
diction, and  therefore  to  provide  for  the 
public  convenience  and  the  public  good." 
Cincinnati,  etc.,  R.  Co.  v.  Connersville,  218 
U.  S.  336,  54  L.  Ed.  1060,  31  S.  Ct.  93;  Lake 
Shore,  etc..  R.  Co.  v.  Ohio,  173  U.  S.  285, 
297,  43  L.  Ed.  702,  19  S.  Ct.  465. 

The  federal  supreme  court  has  had  many 
occasions  to  define,  in  general  terms,  the 


police  power,  and  to  give  particularity  to 
the  definitions  by  special  applications.  In 
Chicago,  etc.,  R.  Co.  v.  Drainage  Commr's, 
200  U.  S.  561,  592,  50  L.  Ed.  596,  26  S.  Ct. 
341,  it  was  said  that  "the  police  power  of 
a  state  embraces  regulations  designed  to 
promote  the  public  convenience  or  the 
general  prosperity,  as  well  as  regulations 
designed  to  promote  the  public  health,  the 
public  morals,  or  the  public  safety;'"  and 
that  the  validity  of  a  police  regulation 
"must  depend  upon  the  circumstances  of 
each  case  and  the  character  of  the  regula- 
tion, whether  arbitrary  or  reasonable,  and 
whether  really  designed  to  accomplish  a 
legitimate  public  purpose."  jMutual  Loan 
Co.  V.  Martell,  222  U.  S.  225,  56  L.  Ed.  175, 
32  S.  Ct.  74. 

484-31.  Same — Reaches  everything  not 
surrendered  to  federal  government. — The 
police  power  is  a  very  extensive  one,  and 
is  frequently  exercised  where  it  also  re- 
sults in  raising  a  revenue.  The  police 
powers  of  a  state  form  a  portion  of  that 
immense  mass  of  legislation  which  em- 
braces everything  within  the  territory  of 
a  state  not  surrendered  to  the  general 
government;  all  which  may  be  most  ad- 
vantageously exercised  by  the  states 
themselves.  Inspection  laws,  quarantine 
laws,  health  laws  of  every  description,  as 
well  as  laws  for  the  regulating  the  internal 
commerce  of  a  state,  and  those  which 
respect  turnpike  roads,  ferries,  etc.,  are 
component  parts  of  this  mass.  Phillips  r. 
[Mobile,  208  U.  S.  472,  52  L.  Ed.  578.  581, 
28  S.  Ct.  370;  Gibbons  v.  Ogden,  9  Wheat. 
1,  203.  6  L.  Ed.  23;  New  York  v.  Miln,  11 
Pet.  102,  141,  9  L.  Ed.  648:  Barbier  v.  Con- 
nolly, 113  U.  S.  27,  31,  28  L.  Ed.  923,  5  S. 
Ct.  357. 

In  Bacon  v.  Walker,  204  U.  S.  311,  318, 
51  L.  Ed.  499,  27  S.  Ct.  289,  it  was  decided 
that  the  police  power  is  not  confined  "to 
the  suppression  of  what  is  offensive,  dis- 
orderly, or  unsanitary,"  but  "extends  to 
so  dealing  with  the  conditions  which  ex- 
ist in  the  state  as  to  bring  out  of  them  the 
greatest  welfare  of  its  people."  Mutual 
Loan  Co.  v.  Martell,  222  U.  S.  225,  56  L. 
Ed.  175,  32  S.  Ct.  74. 

While  the  constitution  of  the  LTnited 
States  and  the  laws  enacted  in  pursuance 
thereof,  together  with  any  treaties  made 
under  the  authority  of  the  United  States, 
constitute  the  supreme  law  of  the  land,  a 
state  of  the  Union  may  exercise  all  such 
governmental  authority  as  is  consistent 
with  its  own  constitution,  and  not  in  con- 
flict with  the  federal  constitution.  House 
V.  Mayes.  219  U.  S.  270,  55  L.  Ed.  213,  31 
S.   Ct.  234. 


12  U  S  Enc— 61 


9(il 


487-494 


POLICE  POWER. 


Vol.  IX. 


V.  Constitutional  Limitations  upon  the   Police   Power. 
A.    Generally  as  to  the  Supremacy  of  the  Federal  Constitution  and 

Laws.— See  notes  2>7,  39. 

C.  As  Restricted  by  the  Interstate  Commerce  Clause  of  the  Constitu- 
tion— 1.  Generally. — See  ante,  Interstate  and  Foreign  Commerce,  ante, 
p.  689,  et  seq. 

Distinct   Powers — Must   Stand   Together.— See   note  43. 

2.  Exclusion  oe  Dangerous  and  Infected  Articles,  Diseased  Persons 
AND  Animals,  Paupers,  Criminals,  etc. — As  to  state  regulation  of  the  sale 
of  gunpowder,  of  illuminating  oils  and  fluids  not  testing  up  to  a  certain  stand- 
ard, of  impure  and  adulterated  paints,  etc.,  see  post.  "Application  of  Principles 
to  Particular  Business,  Trade,  Occupation,  or  Profession,"  VI,  K,  5,  et  seq. 
And  see  ante.  Interstate  and  Foreign  Commerce,  p.  689. 

D.  As  to  Contract  and  Vested  Rights — 1.  As  to  Vested  Rights. — See, 
generally,  ante.  Constitutional  Law,  p.  264.  As  to  vested  and  property  rights 
in  franchises,  special  and  exclusive  privileges,  etc.,  see  ante.  Constitutional, 
Law,  p.  264;  Due  Process  of  Law,  p.  475.  As  to  \'ested  or  property  right 
to  import  particular  goods  or  commodities  as  against  the  right  of  the  federal 
government  to  exclude  the  same,  see  ante.  Interstate  and  Foreign  Com- 
merce, p.  689. 

3.  A  Continuing  Power  ;  Can  Not  Be  Bargained  Away — a.  Generally. 
—See  notes  67,  68,  70,  7?>. 


487-37.  Constitutional  limitations — Gen- 
eral supremacy  of  federal  constitution  and 
laws. — Definitions  of  the  police  power 
must  be  taken  subject  to  the  condition 
that  the  state  can  not,  in  its  exercise,  for 
any  purpose  whatever,  encroach  upon  the 
powers  of  the  general  government,  or 
rights  granted  or  secured  by  the  supreme 
law  of  the  land.  Keller  v.  United  States, 
213  U.  S.  138,  53  L.  Ed.  737,  29  S.  Ct._470; 
New  Orleans  Gas  Co.  v.  Louisiana  Light, 
etc.,  Co.,  115  U.  S.  650,  661,  29  L.  Ed.  516, 
6  S.  Ct.  252;  House  v.  Mayes,  219  U.  S.  270, 

55  L.  Ed.  213,  31  S.  Ct.  234. 

487-39.  Conflict  must  be  plain. — While 
it  is  the  duty  of  the  federal  courts,  if  their 
jurisdiction  be  lawfully  invoked,  to  see  to 
it  that  the  constitutional  rights  of  the  cit- 
izen are  not  infringed  by  the  state,  or  by 
its  authorized  agents,  they  should  not 
strike  down  an  enactment  or  regulation 
adopted  by  the  state  under  its  police 
power,  unless  it  be  clear  that  the  declara- 
tion of  the  public  policy  contained  in  the 
statute  is  plainlj'-  in  violation  of  the  fed- 
eral constitution.  Brodnax  v.  Missouri, 
219  U.  S.  285,  55  L.  Ed.  219,  31  S.  Ct.  238; 
Mutual  Loan  Co.  v.  Martell,  222  U.  S.  225, 

56  L.  Ed.  175,  32  S.  Ct.  74;  McLean  v.  Ar- 
kansas, 211  U.  S.  539,  53  L.  Ed.  315,  29  S. 
Ct.  206;  Chicago,  etc.,  R.  Co.  v.  McGuire, 
219  U.  S.  549,  55  L.  Ed.  328,  31  S.  Ct.  259. 
See,  also,  post,  "Judicial  Review,"  V,  E, 
2,  d. 

488-43.  Distinct  powers — Must  stand 
together. — The  principle  that  a  state,  upon 
its  admission  into  the  Union,  is  thereafter 
'.'.pon  an  equal  footing  with  every  oth?r 
5^aic   ■b.v.C   haS   full   and   complete   jurisdic- 


tion over  all  persons  and  things  within  its 
liinits,  except  as  it  may  be  restrained  by 
the  provisions  of  the  federal  constitution 
or  by  its  own  constitution,  and  the  prin- 
ciple, based  on  the  express  words  of  the 
constitution,  that  congress  has  power  to 
regulate  commerce  with  the  Indian  tribes, 
and  that  such  power  is  superior  and  par- 
amount to  the  authority  of  any  state 
within  whose  limits  are  Indian  tribes,  are 
fundamental  and  of  equal  dignity,  and 
neither  must  be  so  enforced  as  to  nullify 
or  substantially  impair  the  other.  In  reg- 
ulating commerce  with  Indian  tribes  con- 
gress must  have  regard  to  the  general  au- 
thority which  the  state  has  over  all  per- 
sons and  things  witliin  its  jurisdiction. 
So,  the  authority  of  the  state  can  not  be 
so  exerted  as  to  impair  the  power  of  con- 
gress to  regulate  commerce  with  the  In- 
dian tribes.  Dick  v.  United  States,  208  U. 
S.   340,  52  L.   Ed.  520,  525,  28  S.  Ct.  399. 

494-67.  Police  power  can  not  be  bar- 
gained away. — The  right  to  exercise  the 
police  power  is  a  continuing  one;  it  can 
not  be  contracted  away;  and  a  require- 
ment that  a  company  or  individual  com- 
ply with  reasonable  police  regulations 
without  compensation  is  a  legitimate  ex- 
ercise of  the  power,  and  not  in  violation 
of  the  constitutional  inhibition  against 
the  impairment  of  the  obligation  of  con- 
tracts. In  New  York,  etc.,  R.  Co.  v.  Bris- 
tol, 151  U.  S;  556,  567,  38  L.  Ed.  269,  14  S. 
Ct.  437;  Northern  Pac.  R.  Co.  v.  Duluth, 
208  U.  S.  583,  52  L-  Ed.  630,  28  S.  Ct.  341. 
See,  also,  ante,  IMPAIRMENT  OF  OB- 
LIGATION OF  CONTRACTS,  p.  624. 

Not  restricted  by  the  express  guaranties 


962 


Vol.  IX. 


POLICE  POWER. 


498-499 


b.  Limitations  of  Doctrine — (2)  Doctrine  Not  Universally  True  as  to  Mat- 
ters Embraced  zcitJiin  the  Largest  Definition  of  the  Police  Poxver. — Grants  of 
Exclusive  Privileges. — As  to  franchises  and  special  and  exclusive  privileges, 
see  ante.  Constitutional  Law,  p.  264. 

(3)  But  Even  Charter  and  Contract  Rights  Subject  to  Police  Regulation. — 
See  ante,  "Generally,"  \,  D,  3,  a.     As  to  the  operation  of  such  regulations  or 


as  to  contract  and  property  rights. — It  is 

thoroughly  established  that  the  inhibitions 
of  the  constitution  of  the  United  States 
upon  the  impairment  of  the  obligation  of 
contracts,  or  the  deprivation  of  property 
without  due  process,  or  of  the  equal  pro- 
tection of  the  laws,  by  the  states,  are  not 
violated  by  the  legitimate  exercise  of  leg- 
islative power  in  securing  the  public 
safety,  health,  and  morals.  Northern  Pac. 
R.  Co.  V.  Duluth,  208  U.  S.  583,  52  L.  Ed. 
630,  28  S.  Ct.  341.  See,  also,  ante,  IM- 
P  A  I  R  M  E  N  T  OF  OBLIGATION  OF 
CONTRACTS,  p.  624.  And  see  post,  "As 
Restricted  by  the  Fourteenth  Amend- 
ment,"' V,  E;  "Exercise  of  Power  Not 
Hampered  by  Obligation  to  Make  Com- 
pensation for  Injuries  Sustained,"  VI,  A,  3. 

498-68.  Immaterial  that  alleged  con- 
tract is  in  form  of  corporate  charter. — 
The  doctrine  that  a  corporate  charter  is 
a  contract  which  the  constitution  of  the 
United  States  protects  against  impairment 
by  subsequent  state  legislation  is  ever 
limited  in  the  area  of  its  operation  by  the 
equally  well  settled  principle  that  a  legis- 
lature can  neither  bargain  away  the  police 
power  nor  in  any  wise  withdraw  from  its 
successors  the  power  to  take  appropriate 
measures  to  guard  the  safety,  health,  and 
morals  of  all  who  may  be  within  their  ju- 
risdiction. Texas,  etc.,  R.  Co.  v.  Miller,  221 
U.  S.  408,  55  L.  Ed.  789,  31  S.  Ct.  534;  Beer 
Co.  V.  Massachusetts,  97  U.  S.  25,  24  L. 
Ed.  989;  Fertilizing  Co.  v.  Hyde  Park,  97 
U.  S.  659,  24  L.  Ed.  1036;  Stone  v.  Missis- 
sippi, 101  U.  S.  814,  25  L.  Ed.  1079;  Doug- 
las V.  Kentucky,  168  U.  S.  488,  42  L.  Ed. 
553,  18  S.  Ct.  199.  See,  also,  post,  "Regu- 
lation of  Courts;  Jurisdiction,  Forms  of 
Procedure,  Remedies,  Defenses,  Measure 
of  Damages,  etc.,"  VI,  B. 

The  charter  right  to  carry  on  a  particu- 
lar business  does  not  operate  to  deprive 
the  state  of  its  lawful  police  authority,  and 
therefore  a  franchise  to  carry  on  such 
business  is  inherently  qualified  by  the 
duty  to  execute  the  charter  powers  con- 
formably to  such  reasonable  police  regula- 
tions as  might  thereafter  be  adopted  in 
the  interest  of  the  public  welfare.  Ham- 
mond Packing  Co.  v.  Arkansas,  212  U.  S. 
322,  345,  53  L  Ed.  530,  29  S.  Ct.  370. 

Where  it  is  not  disputed  that  the  state, 
under  its  constitution  has  a  reserve  power 
to  repeal,  alter  and  amend  charters 
granted  by  it,  the  existence  of  the  reserve 
power  leaves  no  semblance  of  ground  for 
the  indulgence  of  the  assumption  that  the 
franchise  to  conduct  the  business  implies 


the  right  to  conduct  it  free  from  the  re- 
strictions of  lawfully  imposed  regulations. 
The  claim  of  an  irrepealable  contract  can 
not  be  predicated  upon  a  contract  which 
is  repealable.  Hammond  Packing  Co.  v. 
Arkansas,  212  U.  S.  322,  345,  53  L.  Ed.  530, 
29  S.  Ct.  370;  Citizens'  Sav.  Bank  v. 
Owensboro,  173  U.  S.  636,  644,  43  L  Ed. 
840. 

Charter  rights  of  stage  company  as 
guaranteeing  right  to  display  advertise- 
ments in  or  upon  stages. — See  ante,  DUE 
PROCESS  OF  LAW,  p.  475;  IMPAIR- 
MENT OF  OBLIGATION  OF  COX- 
TRACTS,  p.  624. 

498-70.  As  to  powers  exercised  by  mu- 
nicipal and  other  public  corporations. — 
See,  as  to  franchises  and  special  privi- 
leges, ante,  CONSTITUTIONAL  L.\W, 
p.  264:  DUE  PROCESS  OF  LAW,  p.  475-, 
IMPAIRMENT  OF  OBLIGATION  OF 
CONTRACTS,  p.  624. 

499-73.  Contracts  between  private  per- 
sons subject  to  the  police  power. — One 
whose  rights,  such  as  they  are,  are  subject 
to  state  restriction,  can  not  remove  them 
from  the  power  of  the  state  by  making  a 
contract  about  them.  The  contract  will 
carry  with  it  the  infirmity  of  the  subject 
matler.  Hudson  County  Water  Co.  v. 
McCarter,  209  U.  S.  349,  52  L.  Ed.  828,  28 
S.  Ct.  529;  Knoxville  Water  Co.  v.  Knox- 
ville,  189  U.  S.  434,  438,  47  L.  Ed.  887,  23 
S.  Ct.  531;  Manigault  v.  Springs,  199  U.  S. 
473,  480,  50  L.  Ed.  274,  26  S.  Ct.  127;  Cal- 
der  V.  Attorney  General,  218  U.  S.  591,  54 
L  Ed.  1163,  31   S.  Ct.  122. 

Operation  as  ex  post  facto  laws. — See 
ante.  CONSTITUTIONAL  LAW,  p.  264. 

As  a  deprivation  of  liberty  or  property 
without  due  process. — See  ante,  DUE 
PROCESS  OF  LAW,  p.  475. 

Regulations  of  commerce  affecting  ex- 
isting contracts. — As  to  federal  regula- 
tions of  interstate  commerce  invalidating 
existing  contracts  and  prohibiting  the 
making  of  future  contracts  opposed  to  the 
policv  of  such  resulations.  see  ante.  IN- 
TERSTATE AND  FOREIGN  COM- 
•  :\IFRCE,  p.  689. 

Contract  to  divert  waters  of  stream  into 
another  state. — The  obligations  of  a  con- 
tract to  divert  the  waters  of  the  Passaic 
river  into  another  state,  for  use  therein, 
are  not  unconstitutionally  impaired  by 
the  enactment,  in  the  exercise  of  the  po- 
lice power,  of  Laws  N.  J.  1905,  p.  461,  c. 
238,  under  which  such  a  diversion  of  water 
beyond  the  state  is  forbidden.  Decree, 
McCarter    v.    Hudson    County  Water    Co. 


963 


499 


POLICE  POWER. 


Vol.  IX. 


ex  post  facto  laws,  see  ante,  Constitutional  Law,  p.  264.  As  to  the  depriva- 
tion of  liberty  or  property  without  due  process  of  law,  see  ante,  DuK  Process 
OF  Law,  p.  475.  As  to  federal  regulations  of  interstate  commerce  invalidating 
existing  contracts  and  prohibiting  the  making  of  future  contracts  opposed  to 
the  policy  of  such  regulations,  see  ante.  Interstate  and  Foreign  Commerce. 
p.  689.  As  to  vested  and  property  rights  under  franchises,  special  and  exclu- 
sive privileges,  etc.,  see  ante,  Constitutional  Law,  p.  264;  Corporations,  p. 
381 ;    Due  Process  of  Law,  p.  475.     As  to  right  of  a  corporation  chartered  to 


(1906),  65  A.  489.  70  N.  J.  Eq.  695,  affirmed. 
?Iudson  County  Water  Co.  v.  McCarter, 
209  U.   S.  349,  52  L.  Ed.   828,  28   S.   Ct.   529. 

Contracts  and  obligations  of  corpora- 
tions.— A  corporation,  whose  charter  is 
held  subject  to  a  reserved  right  in  the 
state  to  repeal  the  same,  can  not,  by  mak- 
ing a  contract  or  incurring  a  debt,  prevent 
the  state  from  exercising  its  reserved 
power.  Persons  contracting  with  it  con- 
tract subject,  not  paramount,  to  the  pro- 
viso for  repeal,  and  can  not  get  rid  of  the 
infirmity  inherent  in  the  corporation. 
They  contracted  subject,  not  paramount, 
to  the  proviso,  for  repeal,  as  shown  by  a 
long  line  of  cases.  Calder  v.  Attorney 
General,  218  U.  S.  591,  54  L.  Ed.  1163,  31 
S.  Ct.  122;  citing  Greenwood  v.  Freight 
Co.,  105  U.  S.  13,  26  L."Ed.  961;  Bridge 
Co.  V.  United  States.  105  U.  S.  470,  26  L. 
Ed.  1143;  Chicago  Life  Ins.  Co.  v.  Needles, 
113  U.  S.  574.  28  L.  Ed.  1084;  Monongahela 
Nav.  Co.  V.  United  States,  148  U.  S.  312. 
340,  37  L.  Ed.  463,  13  S.  Ct.  622;  New  Or- 
leans Waterworks  Co.  v.  Louisiana,  185 
U.  S.  336,  354,  46  L.  Ed.  936,  22  S.  Ct.  691; 
Knoxville  Water  Co.  v.  Knoxville,  189  U. 
S.  434,  438,  47  L.  Ed.  887,  23  S.  Ct.  531; 
Manigault  v.  Springs,  199  U.  S.  473,  480,  50 
L.  Ed.  274,  26  S.  Ct.  127. 

The  bonded  indebtedness  of  a  corpora- 
tion is  subject,  not  paramount,  to  the  res- 
ervation in  the  corporate  charter  of  the 
power  to  repeal.  Calder  v.  Attorney  Gen- 
eral, 218  U.  S.  591,  54  L.  Ed.  1163,  31  S.  Ct. 
1 22. 

Same — Existence  of  unexpired  fran- 
chise.— The  existence  of  an  unexpired 
franchise  granted  by  a  municipality  to  a 
waterworks  company,  which  is  included 
in  the  company's  bonded  debt,  did  not 
prevent  the  exercise,  by  Mich.  Local  Acts 
3  905,  Act  No.  492  of  the  state's  reserved 
right  to  repeal  the  company's  charter,  un- 
der which  the  corporate  directors  may  be 
ousted  from  acting  as  a  body  corpoTate 
under  the  corporate  name.  Calder  v.  At- 
torney General,  218  U.  S.  591,  54  L.  Ed. 
1163.  31  S.  Ct.  122. 

If  the  city  gave  the  privilege  of  using 
the  streets  to  the  corporation  forever,  it 
could  not  enlarge  the  right  of  the  corpo- 
ration to  continue  in  existence  as  against 
the  reserved  right  of  the  sovereign  power. 
Calder  v.  Attorney  General,  218  U.  S.  591, 
54  L.  Ed.  1163,  31  S.  Ct.  122. 

The  mere  fact  that  a  contract  may  ex- 


tend beyond  the  term  of  the  life  of  a  cor- 
poration does  not  destroy  it.  This  prin- 
ciple was  recognized  in  Detroit  v.  Detroit, 
etc..  St.  R.  Co.,  184  U.  S.  368,  46  L.  Ed.  592. 
22  S.  Ct.  410,  in  which  it  was  held  that  a 
city  ordinance  granting  the  use  of  the 
streets  of  the  city  for  a  term  which  would 
extend  the  grant  for  sixteen  years  beyond 
the  life  of  the  corporation  did  not  invali- 
date it.  It  was  held  that  the  limitation 
upon  the  corporate  life  of  the  company 
did  not  prevent  it  from  taking  franchises, 
or  other  property,  the  title  to  which  would 
not  expire  with  the  corporation  itself; 
and  further,  that,  at  the  end  of  its  corpo- 
rate life,  if  such  property  were  still  in  ex- 
istence, it  would  be  an  asset  divisible 
among  the  shareholders  after  the  payment 
of  debts,  or  it  might,  if  assignable,  be 
transferred  to  any  other  person  or  com- 
pany competent  to  hold  it.  Minneapolis 
r.  Minneapolis.  St.  R.  Co..  215  U.  S.  417,  54 
L.   Ed.  259,  30  S.  Ct.  118. 

Regulations  affecting  contracts  between 
railroads  with  respect  to  construction  and 
maintenance  of  crossings. — A  contract  be- 
tween two  intersecting  railway  companies, 
imposing  upon  the  junior  road  the  duty  of 
constructing  and  properly  maintaining 
the  physical  crossing  of  the  two  roads, 
and  providing  and  maintaining  sema- 
phores or  other  signals,  and  the  requisite 
watchman  to  take  charge  of  and  operate 
the  same,  is  not  unconstitutionally  im- 
paired by  a  subsequent  order  of  the  state 
railroad  commission,  directing  the  instal- 
lation and  use  of  an  interlocking  plant  at 
such  crossing,  and  apportioning  betv.een 
the  two  companies  the  expense  of  execut- 
ing the  order.  Grand  Trunk,  etc.,  R.  Co. 
V.  Railroad  Conim..  221  U.  S.  400,  55  L.  Ed. 
786,  31  S.  Ct.  537,  affirming  judgment 
(1907)  Same  v.  Hunt,  81  N.  E.  524,  40  Ind. 
App.   168. 

"We  conclude,"  says  the  court,  "as  did 
the  state  court,  that  the  contract  does  not 
eml)race  the  expense  which  the  order  en- 
tails, and  therefore  that  the  order  does 
not,  by  apportioning  that  expense,  impair 
the  obligation  ot  the  contract.  But  to 
avoid  misapprehension  that  otherwise 
might  arise,  we  deem  it  well  to  observe 
that  we  do  not,  by  what  is  here  said,  sug- 
gest or  imply  that  the  contract,  if  its  terms 
were  broad  enough  to  include  the  expense 
in  question,  would  be  an  obstacle  to  the 
apportionment  of  that  expense  under  the 


964 


A'ol.  IX. 


POLICE  POWER. 


505-509 


operate  a  stage  line  to  display  advertisements  in  or  upon  its  coaches,  see  ante, 
Due  Process  of  Law,  p.  475 ;  Impairmext  of  Obligatiox  of  Contracts,  p. 
624. 

E.  As  Restricted  by  the  Fourteenth  Amendment — 1.  Fourteenth 
Amendment  Xot  Designed  to  Interfere  with  Legitimate  Exercise  of  the 
Police  Power.— See  notes  86,  87,  88,  89. 

2.  Respects  Wherein  Police  Power  Is  Restricted  by  Fourteenth 
Amendment — c.  Regulations  Must  Be  Reasonable  and  Bona  Fide,  Having 
Some  Substantial  Relation   to  Ostensible  Object,  etc. — See  notes  95,  96,  97. 


state  statute."  Grand  Trunk,  etc.,  R.  Co. 
r.  Railroad  Comm.,  221  U.  S.  400,  55  L. 
Ed.  786,  31  S.  Ct.  537.  See  Chicago,  etc., 
R.  Co.  V.  Omaha,  170  U.  S.  57,  74,  42  L. 
Ed.  948,  18  S.  Ct.  513;  New  York,  etc.,  R. 
Co.  V.  Bristol,  151  U.  S.  556.  567,  38  L.  Ed. 
260.  14  S.  Ct.  437. 

Regulations  providing  for  the  escheat- 
ing of  savings  bank  deposits  where  depos- 
itors absent  and  unheard  of. — The  obliga- 
tion of  the  contract  between  a  savings 
bank  and  its  depositor  is  not  unconstitu- 
tionally impaired  by  Laws   ^lass.   1907,   c. 

340,  providing  that  deposits  which  have 
remained  inactive  and  unclaimed  for  thirty 
years,  where  the  claimant  is  unknown  or 
the  depositor  can  not  be  found,  shall  be 
paid  to  the  treasurer  and  receiver  general, 
to  be  held  by  him' as  trustee  for  the  true 
owner  or  his  legal  representatives.  Prov- 
ident Institution  r.  Malone,  S21  U.  S.  660, 
55  L.  Ed.  899,  31  S.  Ct.  661.  affirming  judg- 
ment ^Malone  i\  Provident  Institution  for 
Savings  in  Boston,  201  ^lass.  23.  86  X.  E. 
912. 

505-86.  Police  power  as  restricted  by 
the  fourteenth  amendment. — Neither  the 
fourteenth  amendment,  broad  and  com- 
prehensive as  it  is.  nor  any  other  amend- 
ment was  designed  to  interfere  with  the 
power  of  the  state,  sometimes  termed  its 
police  power,  to  prescribe  regulations  to 
promote  the  health,  peace,  morals,  educa- 
tion, and  good  order  of  the  people,  and  to 
legislate  so  as  to  increase  the  industries 
of  the  state,  develop  its  resources,  and  add 
to  its  wealth  and  prosperity.  Keller  t'. 
United  States,  213  U.  S.  138.  53  L.  Ed.  737, 
29  S.  Ct.  470;  Northern  Pac.  R.  Co.  v.  Du- 
luth,  208  U.  S.  583,  52  L.  Ed.  630,  28  S.  Ct. 

341.  See,  also,  ante,  "Generally."  V,  D,  3, 
a;  post,  '"Exercise  of  Power  Xot  Hamp- 
ered by  Obligation  to  Make  Compensa- 
tion for  Injuries  Sustained,"  VI.  A,  3. 
See,  also,  ante,  DUE  PROCESS  OF 
LAW.  p.  475. 

505-87.  Possession  and  enjoyment'  of 
all  rights  subject  to  reasonable  regulation 
— Not  hampered  by  obligation  to  make 
compensation. — See  ante,  "Generally,"  V. 
D,  3,  a;  post,  ''Exercise  of  Power  Not 
Hampered  by  Obligation  to  Make  Com- 
pensation for  Injuries  Sustained."  VI.  A.  3. 

506-88.  Liberty  subject  to  reasonable 
restraint.— See  ante,  DUE  PROCESS  OF 
LAW,  p.  475. 


506-89.  Eflfect  of  equal  protection  clause. 

— See  ante,  "Generallv,"  V,  D,  3.  a.  See, 
also,  ante,  CONSTITUTIONAL  LAW, 
p.  264. 

507-95.  No  precise  rule. — See  post,  "Ju- 
dicial Review."  V.  E,  2,  d. 

508-96.  Regulations  must  be  reasonable 
— Not  to  go  beyond  the  necessities  of  the 
case,  etc. — Statutes  passed  under  the  ex- 
ercise of  so-called  police  power,  must  have 
some  fair  tendency  to  accomplish,  or  aid 
in  the  accomplishment  of,  some  purpose 
for  which  the  legislature  may  u-se  the 
power.  If  the  statutes  are  not  of  that 
kind,  then  their  passage  can  not  be  justi- 
fied under  that  power.  Welch  v.  Swasey, 
214  U.  S.  91,  53  L.  Ed.  923,  929,  29  S.  Ct. 
567. 

If  the  means  emploj-ed.  pursuant  to  the 
statute,  have  no  real  substantial  relation 
to  a  public  object  which  government  can 
accomplish,  if  the  statutes  are  arbitrary 
and  unreasonable,  and  beyond  the  necessi- 
ties of  the  case,  the  courts  wnll  declare 
their  invalidit}'.  Welch  r'.  Swasey.  214  U. 
S.  91,  53  L.  Ed.  923,  929,  29  S.  Ct.  567; 
House  f.  :\Iayes,  219  U.  S.  270,  55  L.  Ed. 
213.  31  S.  Ct.  234. 

509-97.  Regulations  may  be  framed  to 
meet  particular  needs  of  community. — In 
a  sense,  the  police  power  is  but  another 
name  for  the  powder  of  government;  and 
a  contention  that  a  particular  exercise  of 
it  offends  the  due  process  clause  of  the 
constitution  is  apt  to  be  very  intangible 
to  a  precise  consideration  and  answer. 
Certain  general  principles,  however,  must 
be  taken  for  granted.  It  is  certainly  the 
province  of  the  state,  by  its  legislature, 
to  adopt  such  policy  as  to  it  seems  best. 
There  are  constitutional  limitations,  of 
course,  but  these  allow  a  very  comprehen- 
sive range  of  judgment.  Legislation  can 
not  be  judged  by  theoretical  standards. 
It  must  be  tested  by  the  concrete  condi- 
tions which  induced  it.  Mutual  Loan  Co. 
:.  Martell.  222  U.  S.  225,  56  L.  Ed.  175,  32 
S.  Ct.  74.  _ 

The  principle  was  thus  stated  in  Mc- 
Lean z:  Arkansas.  211  U.  S.  539,  548,  53  L. 
Ed.  315,  29  S.  Ct.  206:  The  legislature,  be- 
ing familiar  with  local  conditions,  is,  pri- 
marily, the  judge  of  the  necessity  of  such 
enactments.  The  mere  fact  that  a  court 
may  differ  with  their  legislature  in  its 
views  of  public  polic}"-,  or  that  judges  may 


965 


509-511 


POLICE  POWER. 


Vol.  IX. 


d.    Judicial  Rez'ieu'.—See  notes  98,  99,  2,  3,  4,  6. 


hold  views  inconsistent  with  the  propriety 
of  the  legislation  in  question,  affords  no 
ground  for  judicial  interference,  unless 
the  act  in  question  is  unmistakably  and 
palpably  in  excess  of  legislative  power. 
If  there  existed  a  condition  of  affairs  con- 
cerning which  the  legislature  of  the  state, 
exercising  its  conceded  right  to  enact  laws 
for  the  protection  of  the  health,  safety,  or 
welfare  of  the  people,  might  pass  the  law, 
it  must  be  sustained;  if  such  action  was 
arbitrary  interference  with  the  right  to 
contract  or  carry  on  business,  and  having 
no  just  relation  to  the  protection  of  the 
public  within  the  scope  of  legislative 
power,  the  act  must  fail.  Chicago,  etc.,  R. 
Co.  V.  McGuire,  219  U.  S.  549,  55  L.  Ed. 
328,  31  S.  Ct.  259.  Accord,  Brodnax  v. 
Missouri,  219  U.  S.  285,  55  L.  Ed.  219,  31  S. 
Ct.  238;  JNIurphy  v.  California,  225  U.  S. 
623,  56  L.  Ed.  1229,  32  S.  Ct.  697;  Laurel 
Hill  Cemetery  f.  San  Francisco,  216  U.  S. 
358,  54  L.  Ed.  515,  30  S.  Ct.  301;  Welch  v. 
Swasey,  214  U.  S.  91,  53  L.  Ed.  923.  29  S. 
Ct.  567.  See,  also,  ante,  CONSTITU- 
TIONAL LAW,  p.  264;  DUE  PROCESS 
OF  LAW,  p.  475. 

The  extent  to  which  legislation  may 
modify  and  restrict  the  uses  of  propertj'^ 
consistently  v/ith  the  constitution  is  not 
a  question  for  pure  abstract  theory  alone. 
Tradition  and  the  habits  of  the  community- 
count  for  more  than  logic.  Laurel  Hill 
Cemetery  z'.  San  Francisco,  216  U.  S.  358, 
54  L.  Ed.  515,  30  S.  Ct.  301. 

In  questions  of  this  kind  great  caution 
must  be  used  in  overruling  the  decision  of 
the  local  authorities,  or  in  allowing  it  to 
be  overruled.  Laurel  Hill  Cemetery  v. 
San  Francisco.  216  U.  S.  358,  54  L.  Ed.  515, 
30  S.  Ct.  301. 

509-98.  Judicial  review.— That  the  leg- 
islature of  the  state  is  not  the  final  judge 
of  the  limitations  of  the  police  power,  and 
that  such  enactments  are  subject  to  the 
scrutiny  of  the  courts,  and  will  be  set  aside 
when  found  to  be  unwarranted  and  arbi- 
trary interferences  with  rights  protected 
by  the  constitution  in  carrying  on  a  law- 
ful business  or  making  contracts  for  the 
use  and  enjoyment  of  property,  is  well 
settled  by  the  decisions  of  the  federal  su- 
preme court  Silz  f.  Hesterberg.  211  U. 
S.  31,  53  L.  Ed.  75.  29  S.  Ct.  10;  Lawton  r. 
Steele,  152  U.  S.  133,  137,  38  L.  Ed.  385.  14 
S.  Ct.  499;  Holden  v.  Hardy,  169  U.  S.  366, 
42  L.  Ed.  780,  18  S.  Ct.  383;  Dobbins  z: 
Los  Angeles,  195  U.  S.  223,  236,  49  L.  Ed. 
169,  25  S.  Ct.  18.  See.  also,  ante,  "As  be- 
tween the  Legislative  and  Judicial  De- 
partments," II,  B;  "Generally,  as  to  the 
Supremacy  of  the  Federal  Constitution 
and  Laws,"  V,  A. 

It  is  true  that  the  police  power  of  the 
state  is  not  unlimited,  and  is  subject  to 
judicial   review;   and,   when   exerted   in   an 


arbitrary  or  oppressive  manner,  such  laws 
may  be  annulled  as  violative  of  rignts  pro- 
tected by  the  constitution.  While  the 
courts  can  set  aside  legislative  enactments 
upon  this  ground,  the  principles  upon 
which  such  interference  is  warranted  is 
as  well  settled  as  is  the  right  of  judicial 
interference  itself.  McLean  t:  Arkansas, 
211  U.  S.  539,  53  L.  Ed.  315,  29  S.  Ct. 
206. 

509-99.  How  constitutionality  de- 
termined— Courts  not  concluded  by  dec- 
laration as  to  purpose  of  act. — Bailey  v. 
Alabama,  219  U.  S.  219,  55  L.  Ed.  191,  31 
S.  Ct.  145.  See,  also,  ante,  CONSTITU- 
TIONAL LAW,  p.  264;  DUE  PROCESS 
OF  LAW,  p.  475. 

510-2.  Power  of  court  to  be  exercised 
with  caution. — McLean  v.  Arkansas,  211 
U.  S.  539,  53  L.  Ed.  315,  29  S.  Ct.  206; 
Chicago,  etc.,  R.  Co.  r.  McGuire.  219*  U. 
S.  549,  55  L.  Ed.  328,  31  S.  Ct.  259;  Home 
Tel.,  etc.,  Co.  v.  Los  Angeles,  211  U.  S. 
265,  281,  53  L.  Ed.  176,  29  S.  Ct.  50; 
Lemieux  v.  Young,  211  U.  S.  489.  53  L. 
Ed.  295,  29  S.  Ct.  174;  Williams  v.  Ar- 
kansas, 217  U.  S.  79,  54  L.  Ed.  673,  30  S. 
Ct.  493;  Laurel  Hill  Cemetery  Co.  z\  San 
Francisco,  216  U.  S.  358,  54  L.  Ed.  515,  30 
S.  Ct.  301.  See,  also,  ante,  "Generally,  as 
to  the  Supremacy  of  the  Federal  Consti- 
tution and  Laws,"  V.  A. 

511-3.  Legislature  permitted  a  wide  dis- 
cretion— Presumption  in  favor  of  validity. 
— In  questions  of  this  character  the  leg- 
islature, being  familiar  with  local  condi- 
tions, is  invested  with  a  wide  discretion, 
not  only  in  the  choice  of  subjects  to  be 
regulated,  but  as  to  the  character  of  the 
regulations  required  for  any  particular 
subject.  The  presumption  is  alwaj-s  in 
favor  of  the  validity  of  the  statute,  and 
where  the  subject  to  v.^hich  it  relates  is 
clearly  within  the  police  powers  of  the 
state,  the  statute  can  not  be  held  to  be 
repugnant  to  the  due  process  or  any 
other  clause  of  the  fourteenth  amendment, 
because  of  the  nature  or  character  of  the 
regulations  which  the  statute  embodies, 
unless  it  clearly  appears  that  those  regu- 
lations are  unconstitutional  beyond  all 
reasonable  relation  to  the  subject  to 
which  they  are  applied  so  as  to  amount 
to  mere  arbitrary  usurpation  of  power. 
Lemieux  v.  Young,  211  U.  S.  489,  496.  53 
L.  Ed.  295,  29  S.  Ct.  174;  Booth  v.  Illinois, 
184  U.  S.  425.  46  L.  Ed.  623,  22  S.  Ct.  425; 
Williams  v.  Arkansas,  217  U.  S.  79.  54  L. 
Ed.  673,  30  S.  Ct.  493;  Laurel  Hill  Ceme- 
tery Co.  V.  San  Francisco.  216  U.  S.  358, 
54  "L.  Ed.  515,  30  S.  Ct.  301;  McLean  z: 
Arkansas,  211  U.  S.  539,  548,  53  L.  Ed. 
315,  29  S.  Ct.  206;  Chicago,  etc.,  R.  Co.  v. 
McGuire,  219  U.  S.  549,  55  L.  Ed.  328,  31 
S.    Ct.   259:    Home   Tel.,    etc.,    Co.   z:    Los 


966 


Vol.  IX. 


POLICE  POn  ER. 


511-512 


VI.   Application  of  the  Police  Power  to  Particular  Subjects. 

A.  Regulations  Affecting  Property — 2.  Regulatiox  of  the  Use  and  En- 
joyment OF  Property. — Tenement  Houses. — See  post,  "Public  Health,"  VI, 
J,  et  seq. 

Use  of  Property  for  Cemetery  Purposes. — See  post,  "Public  Health," 
\*I,  J,  et  seq. 

Use    of   Property   for   Advertising   Purposes. — As   to    the   constitutional 


Angeles.  211  U.  S.  265,  281,  53  L.  Ed.  170, 
29    S.    Ct.   50. 

Delusive  exactness  not  required. — 
'"Classitication  must  have  relation  to  the 
purpose  of  the  legislature.  But  logical 
appropriateness  of  the  inclusion  or  ex- 
clusion of  objects  or  persons  is  not  re- 
quired. A  classification  may  not  be  merelj' 
arbitrary,  but  necessarily  there  must  be 
great  freedom  of  discretion,  even  though 
it  result  in  'ill-advised,  unequal,  and  op- 
pressive legislation.'"  Heath,  etc.,  Mfg. 
Co.  r.  Worst,  20T  U.  S.  338,  52  L.  Ed.  236, 
244,   28   S.    Ct.   114. 

Exact  wisdom  and  nice  adaptation  of 
remedies  are  not  required  by  the  four- 
teenth amendment,  nor  the  crudeness  nor 
the  impolicy  nor  even  the  injustice  of 
state  lawrs  redressed  by  it.  Heath,  etc., 
Mfg.  Co.  V.  Worst,  207  U.  S.  338.  52  L. 
Ed.   236.   244,   28   S.   Ct.    114. 

Not  invalid  because  it  may  result  in 
raising  revenue. — Phillips  v.  Mobile,  208 
U.   S.  472.   52_L._Ed.  578,  28   S.  Ct.  370. 

Mere  possibility  of  evil  or  hardship  not 
sufficient  to  mvalidate  statute. — See  ante. 
CONSTITUTIONAL  LAW.  p.  264:  DUE 
PROCESS  OF  LAW,  p.  475. 

511-4.  Courts  not  to  pass  upon  mere 
policy  or  expediency. — Although  there 
ma}'  be  room  for  controversy  as  to 
whether  a  statute  is  or  was  necessary, 
yet,  if  it  can  not  be  said  that  it  is  so  un- 
reasonable as  to  justify  the  court  in  ad- 
Judging  that  it  is  merely  an  arbitrary  ex- 
ercise of  power  and  not  germane  to  the 
objects  which  the  said  legislature  evi- 
dently had  in  view,  it  is  a  valid  enactment 
and  can  not  be  declared  unconstitutional 
by  the  cotirts.  Much  may  be  done  by  a 
state  under  its  police  power  which  many 
may  regard  as  an  unwise  exertion  of  gov- 
ernmental authority.  But  the  federal 
courts  have  no  power  to  overthrow  such 
local  legislation,  simph'  because  they  do 
not  approve  it,  or  because  the}'  deem  it 
unwise  or  inexpedient.  And  although  the 
means  employed  by  the  state  to  accom- 
plish an  object  which  it  is  entitled  to  ac- 
complish, may  be  deemed  unwise  and  in- 
expedient and  not  the  best  or  most  ef- 
fective which  might  have  been  employed, 
they  will  not  be  condemned  or  disre- 
garded by  the  courts  if  they  have  a  real 
relation  to  that  obiect.  Chicago,  etc.,  R. 
Co.  V.  Arkansas,  219  U.  S.  453,  55  L.  Ed. 
290,  31  S.  Ct.  275;  Brodnax  v.  Missouri, 
219  U.  S.  285,  55  L.  Ed.  219,  31   S.  Ct.  238; 


Waters-Pierce  Oil  Co.  v.  Deselms,  212  U. 
S.  159,  53  L.  Ed.  453.  29  S.  Cf.  270;  Home 
Tel.,  etc.,  Co.  v.  Los  Angeles,  211  U.  S. 
265,  281,  53  L.  Ed.  176,  29  S.  Ct.  50;  Mc- 
Lean V.  Arkansas.  211  U.  S.  539,  53  L. 
Ed.  315,  29  S.  Ct.  206.  See,  also,  ante, 
CONSTITUTIONAL  LAW,  p.  264. 

It  is  with  the  legislature  of  the  state  to 
devise  the  means  to  be  employed  to  such 
ends,  taking  care  always  that  the  means 
devised  do  not  go  beyond  the  necessities 
of  the  case,  that  they  have  some  real  or 
substantial  relation  to  the  objects  sought 
to  be  accomplished,  and  are  not  incon- 
sistent with  its  own  constitution  or  the 
constitution  of  the  United  States.  House 
z\  Mayes,  219  U.  S.  270,  55  L.  Ed.  213,  31 
S.  Ct.  234:  Welch  v.  Swasey,  214  U.  S. 
91.  53  L.   Ed.  923,  929,  29  S.  Ct.  567. 

The  legislattire,  being  familiar  with  lo- 
cal conditions,  is  primarily  the  judge  of 
the  necessity  of  police  enactments.  The 
mere  fact  that  a  court  may  differ  with  the 
legislature  in  its  views  of  public  policy, 
or  that  judges  may  hold  views,  incon- 
sistent with  the  propriety  of  the  legisla- 
tion in  question,  afifords  no  grounds  for 
judicial  interference,  unless  the  act  in 
question  is  unmistakably  and  palpably  in 
excess  of  legislative  power.  Williams  v. 
Arkansas,  217  U.  S.  79.  54  L.  Ed.  673,  30 
S.  Ct.  493;  Laurel  Hill  Cemetery  v.  San 
Francisco,  216  U.  S.  358.  54  L.  Ed.  515, 
30  S.  Ct.  301;  Jacobson  v.  Massachusetts, 
197  U.  S.  11.  49  L.  Ed.  643,  25  S.  Ct.  358. 

If  there  exists  a  condition  of  affairs 
concerning  which  the  legislature  of  the 
state,  exercising  its  conceded  right  to 
enact  laws  for  the  protection  of  the  health, 
safety  or  welfare  of  the  people,  might 
pass  the  law,  it  must  be  sustained;  if 
such  action  was  arbitrary  interference 
with  the  right  to  contract  or  carry  on 
business,  and  having  no  just  relation  to 
the  protection  of  the  public  within  the 
scope  of  legislative  power,  the  act  must 
fail.  McLean  z'.  Arkansas.  211  U.  S.  539, 
548.   53   L.    Ed.   315,   29   S.   Ct.  206. 

Mere  possibility  of  evil  or  hardship  not 
sufficient  to  invalidate  statute. — See  ante. 
CONSTITUTION.\L  LAW,  p.  264; 
DUE  PROCESS  OF  LAW,  p.  475. 

512-6.  No  universal  rule — Question  in 
each  case. — T!ie  validity  of  a  police  regu- 
lation must  depend  upon  the  circum- 
stances of  each  case  and  the  character  of 
the  regulation,  whether  arl)itrar3'  or  rea- 
sonable,   and   whether   really   designed   to 


967 


513  POLICE  POJVER.  Vol.  IX. 

right  of  a  stage  company  to  display  advertisements  in  or  upon  its  vehicles,  see 
ante,  Constitutional  Law,  p.  264;  Due  Process  oe  Law,  p.  475.  See,  also, 
post,  "Application  of  Principles  to  Particular  Business,  Trade,  Occupation  or 
Profession,"  VI,  K,  5,  et  seq. 

3.  Exercise  oe  Power  Not  Hampered  by  Obligation  to  ]\Iake  Compen- 
sation EOR  Injuries  Sustained. — See  note  8. 

4.  As  TO  THE  Regulation  and  Control  of  Contract  and  Charter  Rights. 
— See  ante,  "Generally,"  V,  D,  3,  a;  "But  Even  Charter  and  Contract  Rights 
Subject  to  Police  Regulation,"  V,  D.  3,  b,  (3).  As  to  whether  such  regulations 
are  within  the  constitutional  prohibition  against  ex  post  facto  laws,  see  ante. 
Constitutional  Law,  p.  264.  As  to  the  deprivation  of  liberty  or  property,  see 
■ante,  Due  Process  of  Law,  p.  475.  As  to  federal  regulations  of  interstate 
commerce  invalidating  existing  contracts  and  prohibiting  the  making  of  future 
contracts  opposed  to  the  policy  of  such  regulations,  see  ante,  Interstate  and 
Foreign  Commerce,  p.  689.  As  to  the  constitutionality  of  an  ordinance  forbid- 
ding a  stage  company  from  displaying  advertisements  for  hire  in  or  upon  its 
stages  in  use  upon  certain  streets,  see  ante,  Due  Process  of  Law,  p.  475.  See, 
also,  post,  "Application  of  Principles  to  Particular  Business,  Trade,  Occupa- 
tion or  Profession,"  VI,  K,  5,  et  seq. 

5.  As  to  Contracts  between  Individuals. — See  ante,  "As  to  the  Regula- 
tion and  Control  of  Contract  and  Charter  Rights,"  \^I,  A,  4,  and  references 
there  given. 

6.  Limiting  Height  of  Buildings. — Regulations  with  respect  to  the  height 
of  buildings  and  in  regard  to  their  mode  of  construction  in  cities,  made  by  leg- 
islative enactment  for  the  safety,  comfort,  or  convenience  of  the  people,  and 
for  the  benefit  of  property  owners  generally,  are  valid  if  the  height  and  condi- 
tions provided  for  can  be  plainly  seen  not  to  be  unreasonable  or  inappropriate.'^'* 

7.  Uncompensated  Removal  of  Tracks,  Pipes,  Bridges,  Tunnels,  Pav- 
ing OF  Tracks,   etc. — See  ante.   Bridges,   p.   211;    Constitutional  Law,   p. 

accomplish    a    legitimate    public    purpose.  513-8a.    Limiting  height   of  buildings. — - 

Mutual    Loan    Co.    v.    Martell,    222    U.    S.  Welch  r.  Swasey,  214  U.  S.  Ul,  .53  L.  Ed. 

225,  56  L.   Ed.  175,  32   S.  Ct.  7-t;   Chicago,  923,  29  S.  Ct.  567,  affirming  193  Mass.  364, 

etc.,   R.   Co.  V.   McGuire,  219  U.   S.   549,   55  79  N.   E.   745,   118  Am.   St.   Rep.  523. 

L.   Ed.   328,  31   S.  Ct.  259.  The      disci  imination      or       classification 

With  regard  to  the  police  power,  as  made  between  the  commercial  and  resi- 
elsewhere  in  the  law,  lines  are  pricked  out  dential  sections  of  Boston,  by  Mass.  Pub. 
by  the  gradual  approach  and  contact  of  Acts  1904,  chap.  333,  and  Acts  1905,  chap, 
decisions  on  the  opposing  sides.  Noble  383,  limiting  the  maximum  height  of  build- 
State  Bank  t'.  Haskell,  219  U.  S.  104,  55  ings  in  the  commercial  district  to  125 
L.  Ed.  112,  31  S.  Ct.  186,  followed  in  feet,  and  the  residential  districts  to  from 
Shallenberger  v.  First  State  Bank,  219  U.  80  to  100  feet,  will  not,  in  the  face  of  a 
S.  114.  55  L.  Ed.  117,  31  S.  Ct.  189;  Hud-  decision  of  the  highest  state  court,  up- 
don  County  Water  Co.  v.  McCarter,  209  holding  such  legislation,  as  passed  in  the 
U.  S.  349, '355,  52  L.  Ed.  828,  28  S.  Ct.  exercise  of  the  police  pov,'er,  be  held  so 
529.  unreasonable   as   to   deprive   the   owner   of 

513-8.  Not  hampered  by  obligation  to  property  in  the  residential  section  of  its 
make  compensation  for  injuries  sustained.  profitable  use  without  justification,  and 
• — The  states  have  the  power  to  modify  hence  to  take  his  property  without  due 
and  cut  down  property  rights  to  a  certain  process  of  law  unless  compensation  be 
limited  extent  without  compensation,  for  given  him  for  such  invasion  of  his  rights, 
public  purposes,  as  a  necessary  incident  even  though  jesthetic  considerations  may 
of  government,  the  power  commonly  have  entered  into  the  reasons  fot  the  pas- 
called  the  police  power.  Missouri  Pac.  sage  of  such  enactments.  Welch  v. 
R.  Co.  V.  Nebraska,  217  U.  S.  196,  54  L.  Swasey,  214  U.  S.  91,  53  L.  Ed.  923,  29  S. 
Ed.  727,  30  S.  Ct.  461.  See,  also,  ante,  Ct.  567,  affirming  193  Mass.  364,  79  N.  E. 
"Generallv,"  V,  D,  3,  a;  "Fourteenth  745,  118  Am.  St.  Rep.  523.  See,  also,  ante, 
Amendment  Not  Desired  to  Interfere  with  CONSTITUTIONAL  LAW,  p.  264. 
Legitimate  Exercise  of  the  Police  Power,'' 
V,  E,  1. 

968 


Vol.  IX.  POLICE  POWER.  514 

264;  Due  Process  of  Law,  p.  475;  Interstate  and  Foreign  Commerce,,  p. 
689;  Navigable  Waters,  p.  914. 

8.  Destruction  oe  Property  in  the  Interest  oe  Public  Safety,  or  Prop- 
erty Kept,  Sold  or  Used  in  Violation  of  Law. — See  ante,  Due  Process  of 
Law,  p.  475. 

B.  Regulation  of  Courts;  Jurisdiction,  Forms  of  Procedure,  Reme- 
dies, Defenses,  Measure  of  Damages,  etc. — 1.  In  General. — See,  gen- 
erally, ante,  Constitutional  Law,  p.  264 ;  Due  Process  of  Law,  p.  475.  As 
to  the  powers  of  a  territorial  legislature,  see  ante,  Constitutional  Law,  p. 
264.  As  to  the  power  of  the  state  to  prescribe  the  evidence  receivable  in  its 
courts  and  the  effect  thereof,  see  ante,  Constitutional  Law.  p.  264;  Due 
Process  of  Law,  p.  475 ;  Evidence,  p.  558.  As  to  the  power  of  the  state  to 
create  statutory  and  prima  facie  presumptions,  see  ante,  Constitutional  Law, 
p.  264. 

2.  Torts,  Actions,  Damages,  etc. — See,  generally,  ante.  Constitutional 
Law,  p.  264;  Death  by  Wrongful  Act,  p.  456;  Due  Process  of  Law,  p. 
475 ;  Interstate  and  Foreign  Commerce,  p.  689.  See,  also,  post,  "Regulation 
of  the  Relation  of  blaster  and  Servant;  Protection  of  Employees,  etc.,"  VI,  K, 
4,  k,  et  seq.  As  to  the  powers  of  territorial  legislatures,  see  ante.  Constitu- 
tional Law,  p.  264. 

Matters  Not  Actionable  at  Common  Law. — "It  is  a  general  principle  of 
our  law  tliat  there  is  no  individual  liability  for  an  act  which  ordinary  human 
care  and  foresight  could"  not  guard  against.  It  is  also  a  general  principle  of 
the  same  law  that  a  loss  from  any  cause  purely  accidental  must  rest  where  it 
chances  to  fall.  But  behind  and  above  these  general  principles  which  the  law 
lecognizes  as  ordinarily  prevailing,  there  lies  the  legislative  power,  which,  in 
the  absence  of  organic  restraint,  may,  for  the  general  welfare  of  society,  impose 
obligations   and   responsibilities   otherwise   nonexistent.^'"^ 

Same — Liability  of  Municipality  for  Property  Destroyed  by  Mob  Vio- 
lence.— The  imposition  of  absolute  liability  upon  the  community  when  prop- 
erty is  destroyed  through  the  violence  of  a  mob  is  not  an  unusual  police  regula- 
tion. Neither  is  it  arbitrarv,  as  not  resting  upon  reasonable  grounds  of  pol- 
icy.i'""' 

Same — Classification — Equal  Protection. — The  power  of  the  state  to 
impose  liability  for  damage  and  injury  to  property  from  riots  and  mobs  includes 
the  power  to  make  a  classification  of  the  subordinate  municipalities  upon  which 
the  responsibility  may  be  imposed.  It  is  a  matter  for  the  exercise  of  legislative 
discretion,  and  the  equal  protection  of  the  law  is  not  denied  where  the  classifi- 
cation is  not  so  unreasonable  and  extravagant  as  to  be  a  mere  arbitrary  man- 
date.io<= 

514-lOa.    Matters  not  actionable  at  com-  amount  of  any  judgment  it  may  have  paid 

mon  law. — Chicago  i'.   Sturges,   222  U.   S.  the  sufferer,  is  a  valid  exercise  of  the  po- 

313,  .")6  L.  Ed.  21.5.  32  S.  Ct.  92.  lice  power,  and  does  not  deny  to  the  mu- 

514-lOb.     Liability   of    municipality    for  nicipality   due   process    of   law   because    it 

property    destroyed    by    mob    violence. —  imposes  liability  irrespective  of  any  ques- 

Chicago  V.    Sturges,   222   U.   S.   3K].   56    L.  tion   of  the   power   of  the   municipality  to 

Ed.  215,  32  S.  Ct.  92.  have   prevented  the   violence,   or  of  negli- 

Alaking  a  municipality  liable   for  three-  gence  in  the  use  of  its  power.     Chicago  v. 

fourths  of  the  damage  to  property  within  vSturges,  222   U.   S.   313,   56   L.   Ed.   215,   32 

its  limits  caused  by  a  mob   or   riot,   as   is  S.    Ct.    92,    affirming     judgment       (1908), 

done    by    Laws    111.    1887,    p.    237,    which  Sturges  v.  City  of  Chicago,  86  X.   E.  G83, 

saves  to  the  owner  his  action  against  the  237   111.  46. 

rioters,  and  gives  the  municipality  a  lien  514-lOc.      Same — Classification  —  Equal 

upon   any  judgment  against   such   partici-  protection. — Chicago  v.  Sturges,  222  U.  S. 

pants  for  reimbursement,  or  a  remedy  to  313.  56  L.   Ed.  215,  32  S.  Ct.  92. 

the    municipality   directly   against   the    in-  A  city  is  not  denied  the  equal  protection 

dividuals    causing    the    damage,       to      the  of  the  laws  by  Laws  III.  1887,  p.  237,  im- 

969 


515  POLICE  POWER.  Vol.  IX. 

Liability  of  Corporation  for  Death  of  Employees — Validity  of  Con- 
tract   or    Charter   Exemption. — See   post,    "Regulation   of    the    Relation   of 

Master  and  Servant;    Protection  of  Employees,"  etc.,  VI,  K,  4,  k,  et  seq. 

D.  Prevention  and  Punishment  of  Crime;  Ex  Post  Facto  Laws. — See 
ante.  Constitutional  Law,  p.  264;   Due  Process  of  Law,  p.  475. 

E.  Public  Morals,  etc. — 1.  Gambling;  Option  and  Margin  Contracts, 
ETC. — The  business  of  conducting  a  place  where  corporate  stocks,  bonds,  grain, 
provisions  and  other  commodities  are  dealt  in  upon  margin,  or  bought  and  sold 
but  not  paid  for  or  delivered  at  the  time,  is  a  proper  business  for  the  state,  in 
the  exercise  of  its  general  police  power,  to  regulate  and  control. ^^a 

2.  Disorderly  Houses,  etc. — As  to  the  powers  of  the  federal  government 
with  respect  to  the  suppression  of  disorderly  houses  in  general  and  the  harbor- 
ing of  alien  women  for  immoral  purposes  in  particular,  see  ante,  Interstate 
and  Foreign  Commerce,  p.  689. 

F.  Highways;  Establishment,  Care,  Maintenance,  etc.;  Ferries,  Ca- 
nals, etc. — See,  generally,  ante,  Municipal  Corporations,  p.  895 ;  post, 
Streets  and  Highways.  As  to  the  power  of  a  municipal  corporation  to  reg- 
ulate or  suppress  the  business  of  displaying  advertisements  for  hire  in  or  upon 
stages  plying  upon  certain  streets,  see  ante,  Due  Process  of  Law,  p.  475 ;  Im- 
pairment OF  Obligation  of  Contracts,  p.  624.  And  see  post,  "Advertising 
in  or  on  Public  Conveyances,  in  Streets,  Highways,  and  Other  Public  Places," 
VI,  K,  4,  C14. 

G.  Waters  and  Watercourses;  Navigable  Waters — 1.  In  General. — 
See,  generally,  ante.  Constitutional  Law,  p.  264;  Due  Process  of  Law,  p. 
475;  Interstate  and  Foreign  Commerce,  p.  689;  NavigablF  Waters,  p.  914; 
post,  Waters  and  Watercourses.  As  to  the  removal  of  bridges  and  other 
obstructions,  improving  navigation,  etc.,  see  ante,  Due  Process  of  Law,  p.  475 ; 
Interstate  and  Foreign  Commerce,  p.  689;  Navigable  Waters,  p.  914.  As 
to  the  rights  of  riparian  owners,  see  ante,  DuE  Process  of  Law,  p.  475 ;    In- 

posing  upon  it  a  liability  for  damage  to  niodities  are  bought  and  sold,  but  not  paid 
property  within  its  limits,  caused  by  a  for  or  delivered  at  the  time,  as  a  proper 
mob  or  riot,  because,  when  property  dam-  business  for  the  imposition  of  a  stamp 
aged  under  like  circumstances  is  situated  tax  upon  such  sales,  as  is  done  by  Act 
in  a  village  or  other  incorporated  town,  March  8,  1907  (Acts  Mo.  1907,  p.  392), 
the  liability  is  imposed  upon  the  county  does  not  make  the  statute  invalid,  as  deny- 
instead  of  upon  such  village  or  town.  Chi-  ing  the  equal  protection  of  the  laws, 
cago  V.  Sturges,  222  U.  S.  313,  56  L.  Ed.  Brodnax  v.  Missotiri,  219  U.  S.  285,  55  L. 
215,  32  S.  Ct.  92,  atiirming  judgment  (1908)  Ed.  219,  31  S.  Ct.  238,  affirming  judgment 
Sturges  V.  City  of  Chicago,  86  N.  E.  683,  in  State  v.  Brodnax  (1910),  128  S.  W.  177, 
237   111.   46.  228    Mo.   25. 

515-12a.    Gambling— Option  and  margin  Suppression  —  Criminal     offense.— The 

contracts.— Brodnax    v.    Missouri,    219    U.  keeping  of  a  place  where  corporate  stocks 

S.  285,  55  L.  Ed.  219,  31  S.  Ct.  238,  affirm-  and    bonds    and    grains,     provisions,      and 

ing  228  Mo.  25,  128  S.  W.  177;  Murphy  v.  other   commodities    are    bought    and    sold, 

California,  225   U.   S.   623,  56   L.   Ed.   1229,  1^"^  not  paid  for  and  delivered  at  the  time, 

32  S.  Ct.  697.     See,  generally,  ante,  CON-  ^"d   where   no  complete    record     of     the 

STITUTIOXAL    LAW,     p.      264-      DUE  transactions,   including  a   minute    of     the 

PROCESS  OF  LAW   p   475  '  time   of  delivery,   is  made  in  a  book  kept 

As  to  license    reqtiirements     or     other  [f""  ^^^  Purpose,  and  no  niemorandum  of 

regulations      interfering     with      interstate  '^^^   f^^^'   properly   stamped,   is    given   the 

commerce,  see  ante,  INTERSTATE  AND  P^^-^'^aser,    may    be    made    a    criminal    of- 

FOREIGN  COMMERCE,  p.  689.  \^^^f'  ^'   '^,,^one   by   Act   March   8,   1907 

";  ,  ,     .  f  ,  ,  (Acts  Mo.  1907,  p.  392),  in  the  exercise  of 

As  to  the  regulation  of  stock  exchange,  the    police    power    of    the    state,    without 

boards  of  trade,   etc.,   see  post,  "Applica-  taking    property   without    due    process    of 

tion  of  Principles  to  Particular   Business,  i^w    or    interfering    with    the    freedom    of 

Trade,    Occupation    or     Profession,"      VI,  contract.     Brodnax  v.  Missouri,  219  U.  S. 

K.  5.  285,  55  L.  Ed.  219,  31  S.  Ct.  238,  affirming 

Stamp  tax. — Singling  out  the  keeping  of  judgment  in  State  v.  Brodnax  (1910),  128 

a  place  where  corporate  stocks  and  bonds,  S.   W.    177,   228    Mo.   25.      See,    also,   ante, 

and    grains,    provisions,    and    other    com-  DUE  PROCESS  OF  LAW,  p.  475. 

970 


Vol.  IX. 


POLICE  POWER. 


518-519 


TEJRSTATE    AND    FoREIGN    CoMMERCE:,    p.    689;    NaVIG  \BLE    WATERS,    p.    914;    pOSt, 

Waters  and  Watercourses.  As  to  the  power  of  the  state  to  prevent  the  di- 
version of  the  waters  of  a  stream  into  another  state  for  use  therein,  see  ante, 
Due  Process  of  Law,  p.  475 ;  Interstate  and  Foreign  Commerce,  p.  689. 
See,  also,  post,  "Conservation  of  Natural  Resources,"  VI,  M. 

H.  Animals. — See  ante,  Animals,  p.  27;  Interstate  and  Foreign  Com- 
merce, p.  68'^ 

I.    Fish  and  Game. — See  notes  19,  20. 

J.  Public  Health — 6.  Food  Stuffs. — Pure  Food  Laws,  Generally. — As 
to  pure  food  laws  in  general,  state  and  national,  see  ante.  Interstate  and  For- 
eign Commerce,  p.  689. 

Imitations  and  Adulterations. — The  police  power  of  the  state  extends  to 
the  prevention  of  the  manufacture  and  sale  of  adulterated  articles,  and  to  re- 
quiring the  publication  of  their  composition.-'^^ 

Destruction  of  Unwholesome  Food. — See  ante.  Due  Process  of  Law,  p. 
475. 

7.  Tenement  Houses. — The  regulation  and  control  of  the  sanitary  arrange- 
ments of  tenement  houses  with  a  view  to  safeguarding  the  health  of  the  oc- 
cupants and  preventing  the  sanitary  conditions  obtaining  therein  from  becoming 
a  nuisance  and  a  menace  to  the  health  of  the  community  at  large  is  a  matter 
clearly  within  the  police  power  of  the  state,  not  only  as  regards  the  construc- 
tion of  new  building,  but  with  respect  to  alterations  in  existing  structures  ren- 
dered necessary  by  reasonable  requirements.-"'' 


518-19.  Fish  and  game. — The  power  of 
the  state  to  regulate  the  oyster  industry, 
ahhough  the  same  is  carried  on  under 
tidal  waters  in  the  state,  can  not  success- 
fully be  contested.  Lee  v.  New  Jersey, 
207  U.  S.  67,  69,  52  L.  Ed.  106,  28  S.  Ct. 
22,  citing  Smith  v.  Maryland,  18  How. 
71,  15  L.  Ed.  269;  McCready  v.  Virginia, 
94  U.  S.  391,  24  L.  Ed.  248;  Manchester  v. 
Massachusetts,  139  U.  S.  240,  35  L.  Ed. 
159. 

Rights  under  Const.  U.  S.,  14th  Amend., 
are  not  infringed  by  the  provision  of 
Act  N.  J.  March  24,  1899,  p.  514,  §  20, 
as  amended  by  Act  March  22,  •  1901, 
p.  317,  under  which  a  conviction  may  be 
had  for  using  a  dredge  in  tidal  waters  of 
the  state  for  the  purpose  of  catching  oys- 
ters upon  leased  lands  without  the  con- 
sent of  the  lessees.  Judgment,  State  v.  Lee 
(1905),  59  A.  1118.  affirmed.  Lee  v.  New 
Jersey,  207  U.  S.  67,  52  L  Ed.  106,  28  S. 
Ct.  22. 

Taking  and  exportation  of  sponges.— 
See  ante,  INTERSTATE  AND  FOR- 
EIGN COMMERCE,  p.  6S9. 

518-20.  Same — Game. — The  police  power 
is  a  well  recognized  and  often  exerted 
power  of  the  state,  and  necessary  to  the 
protection  of  the  supply  of  game  which 
would  otherwise  be  rapidly  depleted,  and 
which,  in  spite  of  laws  passed  for  its  pro- 
tection, is  rapidly  disappearing  from  many 
portions  of  the  country.  In  order  to  pro- 
tect local  game  during  the  closed  season 
it  has  been  found  expedient  in  some  states 
to  make  possession  of  all  such  game  dur- 
ing   that    time,    whether    taken    within    or 


without  the  state,  a  misdemeanor.  In 
other  states  of  the  Union  such  laws  have 
been  deemed  essential,  and  have  been 
sustained  by  the  courts.  Silz  v.  Hester- 
berg,  211  U.  S.  31,  53  L.  Ed.  75,  29  S. 
Ct.  10. 

The  source  of  the  police  power  as  to 
game  birds  flows  from  the  duty  of  the 
state  to  preserve  for  its  people  a  valuable 
food  supply.  The  exercise  by  the  state 
of  such  power  therefore  conies  directly 
within  the  principle  of  Plumley  v.  Mas- 
sachusetts, 155  U.  S.  461,  473,  39  L.  Ed. 
223,  15  S.  Ct.  154;  Silz  v.  Hesterberg,  211 
U.  S.  31,  53  L.  Ed.  75,  29  S.  Ct.  10. 

The  prohibition  against  the  possession 
of  game  out  of  season,  which  is  made  by 
Laws  N.  Y.  1900,  p.  22,  c.  20.  is  a  proper 
exercise  of  the  police  power,  and  does  not 
deny  the  due  process  of  law  guaranteed 
by  Const.  U.  S.,  14th  Amend.,  although 
such  game  may  have  been  taken  in 
foreign  countries  during  the  open  sea- 
son there.  Judgment  (1906),  76  N.  E. 
1032,  184  N.  Y.  126,  3  L.  R.  A.  (N.  S.)  163. 
affirmed.  Silz  v.  Hesterberg,  211  U.  S. 
31,   53   L.   Ed.   75,   29   S.   Ct.   10. 

519-27a.  Imitations  and  adulterations. — 
Heath,  etc.,  Mfg.  Co.  v.  Worst,  207  U.  S. 
338,  353,  52  L.  Ed.  236,  28  S.  Ct.  114.  See. 
also,  ante,  CONSTITUTIONAL  LAW,  p. 
264;  INTERSTATE  AND  FOREIGN 
COMMERCE,  p.  6S9. 

519-27b.  Tenement  houses. — Tenement 
House  Dept.  of  City  of  New  York  v. 
Moeschen,  179  N.  Y.  325.  72  N.  E.  231,  70 
L.  R.  A.  704,  103  Am.  St.  Rep.  910.  af- 
firmed,   Aloeschen    z\     Tenement     House 


971 


519-521 


POLICE  POWER. 


Vol.  IX. 


8.  Cemeteries. — The  regulation  of  burial  and  the  prohibition  of  it  in  certain 
spots,  especially  in  crowded  cities,  is  a  matter  peculiarly  within  the  police  powei 
of  the  state,  and  the  court  has  said  that  in  matters  of  this  kind  the  extent  to 
w^hich  legislation  may  modify  and  restrict  the  uses  of  property  consistently  with 
the  constitution  is  not  a  question  for  pure  abstract  theory  alone,  but  that  tradi- 
tion and  the  habits  of  the  community  count  for  more  than  logic,  and  that  the 
federal  supreme  court  will  exercise  great  caution  in  overruling  the  decision  of 
the  local  authorities,  or  in  allowing  it  to  be  overruled.-"'^ 

K.  Regulation  of  Business,  Trade,  Occupation  or  Profession. — See, 
generally,  ante,  Constitutional  Law,  p.  264.  As  to  restrictions  upon  the  lib- 
erty of  contract,  see,  also,  ante,  Due  Process  oe  Law,  p.  475. 

L  Right  oe  Citizens  to  Pursue  Lawful  Occupations,  Enter  into  Con- 
tracts. Acquire  and  Dispose  oe  Property,  upon  Terms  oe  Equality. — See, 
generally,  ante.  Constitutional  Law,  p.  264.  And  see  post,  "As  to  Power  of 
State  to  Regulate,"  VI,  K,  3,  et  seq. 

2.  Right  to  Be  Exercised  in  Subordination  to  Law. — See  post,  "As  to 
Power  of  State  to  Regulate,"  VI,  K,  3,  et  seq. 

3.  As  to  Power  of  State  to  Regulate — a.  Generally. — See  note  30. 


Dept.,  203  U.  S.  583.  51  L.  Ed.  328,  27  S. 
Ct.    781. 

The  provision  of  Laws  1901,  p.  912,  c. 
334,  §  100,  as  amended  by  Laws  1902,  p. 
937,  c.  352,  §  47,  requiring  all  school  sinks 
in  existing  tenement  houses  in  cities  of 
the  first  class  to  be  removed,  is  a  con- 
stitutional exercise  of  the  police  power  of 
the  states  for  the  protection  of  the  public 
health,  and  does  not  violate  the  constitu- 
tional provision  against  taking  private 
property  for  public  use  without  just  com- 
pensation, in  so  far  as  it  applies  to  ex- 
isting buildings.  Neither  is  it  a  violation 
of  the  equal  protection  clause  of  the 
fourteenth  amendment  because  applicable 
to  tenement  houses  only  in  cities  of  the 
first  class.  Judgment,  Tenement  House 
Department  of  City  of  New  York  v. 
•Moeschen  (1904),  72  N.  E.  231,  179  N.  Y. 
325,  70  L.  R.  A.  704,  103  Am.  St.  Rep.  910, 
affirmed.  Moeschen  v.  Tenement  House 
Dept.,  203  U.  S.  583.  51  L.  Ed.  328,  27  S. 
Ct.  781. 

519-27C.  Cemeteries. — Laurel  Hill  Ceme- 
tery Co.  V.  San  Francisco,  216  U.  S.  358, 
54   L.   Ed.   515,   30   S.   Ct.   301. 

A  cemetery  association  owning  a  burial 
ground  within  the  limits  of  the  city  and 
county  of  San  Francisco  is  not  deprived 
of  its  property  without  due  process  of 
law,  contrary  to  the  Const.  U.  S.,  14th 
Amend.,  by  an  ordinance  forbidding 
the  burial  of  the  dead  within  those 
Hmits.  Decree  (1907),  93  P.  70.  152  Cal. 
464,  14  A.  &  E.  Ann.  Cas.  1080,  affirmed. 
Laurel  Hill  Cemetery  v.  San  Francisco, 
216  U.   S.  358,  54   L.   Ed.  515,  30  S.   Ct.  301. 

521-30.  Generally,  as  to  power  of  state 
to  regulate  business,  trade,  occupation, 
etc.— See,  generally,  ante,  CONSTITU- 
TIONAL LAW,  p.  264. 

It  is  too  well  settled  to  require  discus- 
sion at  this  day  that  the  police  power  of 
the    states    extends    to    the    regulation    of 


certain  trades  and  callings,  particularly 
those  which  closely  concern  the  public 
health.  Watson  v.  Maryland,  218  U.  S. 
173,  54  L.  Ed.  987,  30  S.  Ct.  644;  Collins 
V.  Texas,  223  U.  S.  288,  56  L.  Ed.  439,  32 
S.    Ct.    286. 

The  fourteenth  amendment  protects  the 
citizen  in  his  right  to  engage  in  any  law- 
ful business,  but  it  does  not  prevent  leg- 
islation intended  to  regulate  useful  oc- 
cupations which,  because  of  their  nature 
or  location,  may  prove  injurious  or  of- 
fensive to  the  public.  Neither  does  it 
prevent  a  municipality  from  prohibiting 
any  business  which  is  inherently  vicious 
and  harmful.  But,  between  the  useful 
business  which  may  by  regulated  and  the 
vicious  business  which  can  be  prohibited 
lie  many  nonuseful  occupations  which 
may  or  may  not  be  harmful  to  the  public, 
according  to  local  conditions,  or  the  man- 
ner in  which  they  are  conducted.  Murphy 
V.  California.  225  U.  S.  623,  56  L.  Ed. 
1229.   32    S.    Ct.   697. 

"Regulations  respecting  the  pursuit  of 
a  lawful  trade  or  business  are  of  very 
frequent  occurrence  in  the  various  cities 
of  the  country,  and  what  such  regulations 
shall  be  and  to  what  particular  trade, 
business,  or  occupation  they  shall  apply, 
are  questions  for  the  state  to  determine, 
and  their  determination  comes  within  the 
proper  exercise  of  the  police  power  by 
the  state;  and,  unless  the  regulations  are 
so  utterly  unreasonable  and  extravagant 
in  their  nature  and  purpose  that  the  prop- 
GTiy  and  personal  rights  of  the  citizen 
are  unnecessarily,  and  in  a  manner  wholly 
arbitrary,  interfered  with  or  destroyed 
without  due  process  of  law,  they  do  not 
extend  beyond  the  power  of  the  state  to 
pass,  and  they  form  no  subject  for  fed- 
eral interference."  McLean  v.  Arkansas, 
211  U.  S.  539,  53  L.  Ed.  315,  29  S.  Ct.  205; 
Engle   V.   O'M alley,   219   U.   S.   128,   55   L. 


972 


Vol.  IX. 


POLICE  POWER. 


523 


b.  Business  Subject  to  Regulation;  Regulations  to  Be  Imposed — (1)  State 
to  Select. — See  ante,  "Generally,"  VI,  K,  3,  a. 

(3)  Doubtful  and  Immoral  J'ocations. — See  ante,  "Gambling;  Option  and 
Margin  Contracts,  etc.,"  VI,  E,  1,  and  references  there  given;  "Disorderly 
Houses,  etc.,"  VI,  E,  2,  and  references  there  given.  And  see  post,  "Application 
of  Principles  to  Particular  Business,  Trade,  Occupation  or  Profession,"  VI,  K, 
5,  et  secj. 

d.  Limitations  of  Ponder — (1)  Must  Be  Reasonable;  Arbitrary  Interference 
Not  Permissible. — See  notes  38,  39. 


Ed.  128,  31  S.  Ct.  191;  Noble  State  Bank 
V.  Haskell,  219  U.  S.  104,  55  L.  Ed.  112, 
31  S.  Ct.  186;  Shallenberger  v.  First  State 
Bank,  219  U.  S.  114,  55  L.  Ed.  117,  31  S. 
Ct.  189;  Assaria  State  Bank  v.  DoUev.  219 
U.   S.   121,  55   T...   Ed.  123,  31   S.  Ct.  189. 

It  may  be  said  in  a  general  way  that 
the  police  power  extends  to  all  the  great 
public  needs.  Camfield  v.  United  States, 
167  U.  S.  518,  42  L.  Ed.  260,  17  S.  Ct.  864. 
It  may  be  put  forth  in  aid  of  what  is 
sanctioned  by  usage,  or  held  by  the  pre- 
vailing morality  or  strong  and  prepon- 
derant opinion  to  be  greatly  and  imme- 
diately necessary  to  the  public  welfare. 
Noble  State  Bank  v.  Haskell,  219  U.  S. 
104,  55  L.  Ed.  112,  31  S.  Ct.  186,  followed 
in  Shallenberger  v.  First  State  Bank,  219 
U.   S.   114,   55   L.    Ed.   117,   31    S.   Ct.   189. 

Not  affected  by  existence  of  right  at 
common  law. — The  claim  by  the  states  of 
the  right  to  regulate  or  prohibit  the  free 
and  unrestrained  exercise  or  pursuit  of  a 
given  occupation  or  business  is  not  an- 
swered by  citing  authorities  for  the  exist- 
ence of  the  right  at  common  law,  since 
there  are  many  things  that  a  man  might  do 
at  common  law  that  the  states  may  forbid. 
He  might  embezzle  until  a  statute  cut 
down  his  liberty.  Noble  State  Bank  v. 
Haskell,  219  U.  S.  104,  55  L.  Ed.  112,  31 
S.  Ct.  186,  followed  in  Shallenberger  7'. 
First  State  Bank,  219  U.  S.  114,  55  L.  Ed. 
117,   31    S.   Ct.   189. 

523-38.  Regulation  must  be  reasonable 
— Arbitrary  interference  not  permissible. 
—See,  generally,  ante,  CONSTITU- 
TIONAL LAW,  p.  264. 

Vesting  discretion  in  single  officer, 
board  or  tribunal.— See  ante,  CONSTITU- 
TIONAL LAW,  p.  264. 

523-39.  Presumption  in  favor  of  valid- 
ity— Legislature  permitted  a  wide  dis- 
cretion.— See,  also,  ante,  "Generally,  as  to 
the  Supremacy  of  the  Federal  Constitu- 
tion and  Laws,"  V,  A;  "Judicial  Review," 
V,  E,  2,  d. 

Before  a  law  of  this  kind  can  be  de- 
clared violative  of  the  fourteenth  amend- 
ment as  an  unreasonable  classification  of 
the  subjects  of  such  legislation  because 
of  the  omission  of  certain  classes,  the 
cojirt  must  be  able  to  say  that  there  is 
"no  fair  reason  for  the  law  that  would 
not  require  with  equal  force  its  extension 


to  others  whom  it  leaves  untouched." 
Missouri,  etc.,  R.  Co.  t'.  May,  194  U.  S. 
267,  269,  48  L.  Ed.  971,  24  S.  Ct.  638;  Wat- 
son V.  Maryland,  218  U.  S.  173,  54  L.  Ed. 
987,  30   S.   Ct.   644. 

Time  of  taking  effect — Discrimination 
as  between  rights  of  earlier  and  later 
time. — "Tlie  fourteenth  amendment  does 
not  forbid  statutes  and  statutory  changes 
to  have  a  beginning,  and  thus  disciminate 
between  the  rights  of  an  earlier  and  later 
time."  Williams  v.  Walsh,  222  U.  S.  415, 
56  L.  Ed.  253,  32  S.  Ct.  137;  Sperry,  etc., 
Co.  V.  Rhodes,  220  U.  S.  502,  505,  55  L.  Ed. 
561,  31   S.  Ct.  490. 

Legislation  which  makes  acts  criminal 
which  are  done  after  they  are  forbidden, 
and  assigns  no  penalties  to  acts  done  in 
pursuance  of  obligations  previously  le- 
gally incurred,  is  not  arlntrary  classifica- 
tion. Williams  v.  Walsh,  222  U.  S.  415, 
56   L.    Ed.   253,    32    S.    Ct.   137. 

Distinctions  based  upon  degrees  of  evil. 
— Legislation  which  regulates  business 
may  well  make  distinctions  depend  upon 
the  degrees  of  evil  without  being  arbi- 
trary or  unreasonable.  Heath,  etc.,  Mfg. 
Co.  V.  Worst,  207  U.  S.  338,  52  L.  Ed.  236, 
28  S.  Ct.  114;  Ozan  Lumber  Co.  v.  Union 
County  Nat.  Bank,  207  U.  S.  251,  52  L. 
Ed.   195,   28   S.    Ct.  89. 

Distinctions  based  upon  sex. — See  ante, 
CONSTITUTIONAL  LAW,  p.  264. 

As  to  discriminations  between  the  hours 
of  labor  for  male  and  female  employees, 
see  post,  "Eight  Hour  Laws,"  VI,  K,  4, 
k,   (8),   (bV 

Not  unreasonable  because  it  results  in 
raising  some  revenue. — The  police  power 
is  a  very  extensive  one,  and  is  frequently 
exercised  where  it  also  results  in  raising 
a  revenue.  Phillips  v.  Mobile,  208  U.  S. 
472.   52   L.   Ed.  578.   28   S.    Ct.  370. 

Thus  a  municipal  ordinance  regulating 
the  sale  of  intoxicating  liquors  in  the 
original  package,  and  otherwise  valid  un- 
der the  Wilson  .^ct,  is  not  rendered  in- 
valid by  reason  of  the  fact  that  it  also  pro- 
duces some  revenue.  Speaking  on  this 
point  the  court  says:  "The  fact  that  the 
city  derives  more  or  less  revenue  from 
the  ordinance  in  question  does  not  tend 
to  prove  that  this  section  was  not  adopted 
in  the  exercise  of  the  police  power,  even 
though  it  might  also  be  an  exercise  of  the 
power      to      tax."      And     again,      speak- 


973 


525-526  POLICE  POWER.  Vol.  IX. 

(2)  Regulation  May  Extend  to  Suppression. — See  ante,  "Generally,"  VI,  K, 
3,  a. 

Where  Business  Not  Necessarily  Objectionable,  but  Objectionable  as 
Ordinarily  Prosecuted. — See  note  43. 

(3)  As  to  the  Retrospective  Operation  of  Regulations;  Interest  or  Estate  in 
Profession,  Business,  etc. — See,  generally,  ante,  "A  Continuing  Power;  Can 
Not  Be  Bargained  Away,"  V,  D.  3,  et  seq.  See,  generally,  as  to  vested  rights, 
ante,  Constitutional  Law,  p.  264.  As  to  ex  post  facto  laws,  see  ante,  Consti- 
tutional Law,  p.  264.  As  to  the  deprivation  of  liberty  or  property  without  due 
process  of  law,  see  ante.  Due  Proce;ss  of  Law,  p.  475.  And  see  ante,  "As  Re- 
stricted by  the  Fourteenth  Amendment,"  V,  E,  et  seq.  As  to  federal  regulations 
of  interstate  commerce  invalidating  existing  contracts  and  prohibiting  the  mak- 
ing of  future  contracts  opposed  to  the  policy  of  such  regulations,  see  ante,  In- 
terstate AND  Foreign  Commerce,  p.  689. 

4.  Particular  Regulations — a.  Pozver  to  Prescribe  Qualifications  for 
Persons  Seeking  to  Enter  the  Learned  Professions  or  Occupations  Requiring 
Peculiar  Knozvledge  or  Skill. — Interest  or  Estate  in  Profession — Power  to 
Make  Regulations  Applicable  to  Existing  Practitioners. — A  prohibition 
against  the  practice  of  medicine  by  persons  not  licensed  or  registered  is  not  in- 
valid as  to  one  who  had  an  established  business  when  the  law  was  passed.^'^'^ 

Practice  of  Medicine — Generally. — It  is  too  well  settled  to  require  dis- 
cussion at  this  day  that  the  police  power  of  the  states  extends  to  the  regulation 
of  certain  trades  and  callings,  particularly  those  which  closely  concern  the  pub- 
lic health.  There  is  perhaps  no  profession  more  properly  open  to  such  regula- 
tion than  that  which  embraces  the  practitioners  of  medicine.  Dealing,  as  its 
followers  do,  with  the  lives  and  health  of  the  people,  and  requiring  for  its  suc- 
cessful practice  general  education  and  technical  skill,  as  well  as  good  character, 
it  is  obviously  one  of  those  vocations  where  the  power  of  the  state  may  be  ex- 
erted to  see  that  only  properly  qualified  persons  shall  undertake  its  responsible 
and  difficult  duties.  To  this  end  many  of  the  states  of  the  Union  have  enacted 
statutes  which  require  the  practitioner  of  medicine  to  submit  to  an  examination 
by  a  competent  board  of  physicians  and  surgeons,  and  to  receive  duly  authenti- 
cated certificates  showing  that  they  are  deemed  to  possess  the  necessary  qualifi- 
cations of  learning,  skill  and  character  essential  to  their  calling.^'''^ 

ing       of      the      power     to     regulate      the  protect  the  public  morals  has  no  real  or 

traffic    in      intoxicating    liquors:      "Taxa-  substantial  relation   to  that  object,   but  is 

tion  is  frequently  the  very  best  and  most  a    clear,     unmistakable      infringement      of 

practical  means  of  regulating  this  kind  of  rights    secured   by   the   fundamental   law." 

business."      Phillips   v.    Mobile,   208   U.    S.  (Quoting  Booth  v.  Illinois,  184  U.  S.  425, 

472,  52  L.   Ed.  578,28  S.  Ct.  370,  followed  429,   46  L.   Ed.  623,  22   S.   Ct.  425.)    Under 

in  Richard  v.  Mobile,  208  U.  S.  480,  52  L.  this   principle,    ordinances   prohibiting   the 

Ed.  581,  28   S.  Ct.  372.  keeping  of  billiard  halls  have  many  times 

525-43.    Where  business  not  necessarily  been  sustained  by  the  courts.     Murphy  v. 

objectionable,    but    objectionable     as      or-  California.  225  U.   S.  623,  56  L.   Ed.  1229, 

r^inarily  prosecuted. — "A  calling  may  not  32  S.  Ct.  697. 

':U  itself  be  immoral,  and  yet  the  tendency  526-47a.    Interest  or  estate  in  profession 

of  what  is  generally  or  ordinarily  or  often  — Constitutionality   as   to   existing   practi- 

done  in  pursuing  that  calling  may  be  to-  tioners. — Collins  7'.   Texas,   223   U.   S.   288, 

wards   that   which   is   admittedly   immoral  56  L.  Ed.  439,  32  S.  Ct.  286. 

or  pernicious.     If,  looking  at  all  the  cir-  526-47b.    Practice   of    medicine — Gener- 

cumstances  that  attend,  or  which  may  or-  ally. — Watson  z'.  Maryland,  218  U.  S.  173, 

dinarily  attend,  the  pursuit  of  a  particular  54   L.   Ed.   987,   30  S.   Ct.   644,   citing  Dent 

calling,   the    state    thinks   that   certain   ad-  z.:  West  Virginia,  129  U.  S.  114,  32  L.  Ed. 

mitted     evils     can     not     be     successfully  623,  9  vS.  Ct.  231. 

reached    unless    that    calling    be     actually  May   apply   to    osteopaths. — The     state 

prohibited,    the    courts    can    not    interfere,  may    constitutionally    require,    as    is    done 

unless    looking   through    mere    forms   and  by    Tex.    Laws    1907,    chap.    123,    that    os- 

at  the   substance  of  the  matter,  they  can  leopaths  professing  to  help  certain  human 

say    the    statute    enacted    professedly     to  ailments  by  scientific  manipulation  aflfect- 

974 


Vol.  IX. 


POLICE  POWER. 


526 


Classification  and  Exemptions. — Conceding  the  power  of  the  legislature 
to  make  regulations  for  the  practice  of  medicine,  it  is  also  within  its  power  to 
exempt  experienced  and  accepted  physicians  from  the  requirements  of  an  ex- 
amination and  certificate.  The  selection  of  the  exempted  classes  is  within  the 
legislative  power,  subject  only  to  the  restriction  that  it  be  not  arbitrary  or  op- 
pressive, and  that  it  shall  apply  equally  to  all  persons  similarly  situated.  The 
details  of  such  legislation  rest  primarily  within  the  discretion  of  the  state  leg- 
islature, and  the  federal  courts  can  interfere  only  when  fundamental  rights 
guaranteed  by  the  federal  constitution  are  violated.'^"'' 

Distinction  between  Paid  and  Gratuitous  Services. — In  prescribing  re- 
quirements of  this  character,  the  state  may  properly  distinguish  between  gra- 
tuitous medical  services  and  those  paid  for.'*''' 

Single   Acts   and   Transactions. — The   state   legislature,   when   prohibiting 


ing  the  nerve  centers  shall  have  had  a 
scientific  training.  Collins  v.  Texas,  223 
U.    S.   288,    56    L.    Ed.   439,    32    S.    Ct.   286. 

526-47C.  Classification  and  exemptions. 
—Watson  V.  Maryland,  218  U.  S.  173,  54 
L.    Ed.   987,   30   S.    Ct.   644. 

"This  subject  has  been  so  frequently 
and  recently  before  this  court  as  not  to 
require  an  extended  consideration.  The 
right  to  regulate  occupations  was  con- 
sidered by  this  court  at  the  present  term 
in  the  case  of  Williams  v.  Arkansas,  217 
U.  S.  79,  54  L.  Ed.  673,  30  S.  Ct.  493,  in 
which  it  was  held  that  a  state  statute 
which  prohibited  a  certain  class  of  drum- 
ming or  soliciting  of  business  on  trains 
did  not  amount  to  a  denial  of  the  equal 
protection  of  the  law.  In  that  case  the 
recent  cases  in  this  court  were  reviewed 
and  followed.  It  was  therein  held  that 
regulations  of  a  particular  trade  or  busi- 
ness essential  to  the  public  health  and 
safety  were  within  the  legislative  capacity 
of  the  state  in  the  exercise  of  its  police 
power,  and  that  unless  such  regulations 
are  so  unreasonable  and  extravagant  as 
to  interfere  with  property  and  personal 
rights  of  citizens,  unnecessarily  and  ar- 
bitrarily, they  are  within  the  power  of 
the  state;  and  that  the  classification  of  the 
subjects  of  such  legislation,  so  long  as 
such  classification  has  a  reasonable  basis, 
and  is  not  merely  arbitrary  selection 
without  real  difference  between  the  sub- 
jects included  and  those  omitted  from 
the  law,  does  not  deny  to  the  citizen  the 
equal  protection  of  the  laws."  Watson 
V.  Maryland,  218  U.  S.  173,  54  L.  Ed.  987, 
30   S.   Ct.   644. 

The  exemption  from  the  provisions  of 
Code  Pub.  Gen.  Laws  Md.  1904,  art.  43, 
§  83,  for  the  registration  of  physicians,  in 
favor  of  those  physicians  who  were  then 
practicing  in  the  state,  and  had  so  prac- 
ticed prior  to  January  1,  1898,  and  could 
prove  by  affidavit  that  within  one  year 
of  said  date  :hey  had  treated  at  least  12 
persons  in  their  professional  capacity,  is 
not  such  an  unreasonable  and  arbitrary 
classification  as  renders  the  statute  in- 
valid,  as   denying  the   equal   protection   of 


the  laws,  but  is  within  the  discretion 
vested  in  the  legislature  in  exercising  the 
police  power.  Watson  v.  Maryland,  218 
U.  S.  173,  54  L.  Ed.  987,  30  S.  Ct.  644. 
affirming  judgment  (1907),  66  A.  635,  105 
Md.   650. 

Resident  physicians  or  assistant  physi- 
cians at  hospitals,  and  students  on  hos- 
pital or  dispensary  duty  or  in  the  office  of 
physicians,  physicians  and  surgeons  from 
other  states,  or  residing  on  the  borders 
of  a  neighboring  state,  army  and  navy 
surgeons,  chiropodists,  midwives,  and 
masseurs,  could  be  exeinpted  by  Code 
Pub.  Gen.  Laws  Md.  1904,  art.  43,  §  101, 
from  the  provisions  of  that  article  for  the 
registration  of  physicians,  without  ren- 
dering the  statute  invalid  as  denying  the 
equal  protection  of  the  laws.  Watson  f. 
Maryland,  218  U.  S.  173,  54  L.  Ed.  987, 
30   S.    Ct.   644. 

Since  hospitals  may  be  and  very  often 
are  the  subject  of  state  or  municipal 
regulation  control,  and  employment  in 
them  may  be  by  boards  responsible  to 
public  authority  under  state  lav/  or  mu- 
nicipal ordinance,  the  conduct  of  such  in- 
stitutions may  be  regulated  by  such  laws 
or  municipal  regulations  as  may  not  reach 
the  general  practitioner  of  medicine.  In 
any  event,  it  can  not  be  said  that  these 
exceptions  are  so  wholly  arbitrary  and 
have  such  slight  relation  to  the  objects  to 
be  attained  bv  the  law  as  to  require  the 
courts  to  strike  them  down  as  a  denial 
of  the  equal  protection  of  the  law,  within 
the  meaning  of  the  federal  constitution. 
Watson  V.  Marvland.  218  U.  S.  173,  54  L. 
Ed.   987,  30  S.   Ct.  644. 

526-47d.  Distinction  between  paid  and 
gratuitous  services. — Collins  v.  Texas,  223 
U.  S.  288.  56  L.  Ed.  439,  32  S.  Ct.  286._ 

The  distinction  between  _  gratuitous 
medical  services  and  those  paid  for,  made 
by  Tex.  Laws  1907,  chap.  123,  providing 
for  registering  and  licensing  medical 
practitioners  who  charge  a  compensation 
for  services,  does  not  render  the  statute 
repugnant  to  the  federal  constitution.  Col- 
lins 7'.  Texas,  223  U.  S.  288,  56  L.  Ed.  439. 
32   S.   Ct.  286. 


97i 


526-527  POLICE  POWER.  Vol.  IX. 

the  general  practice  of  medicine  for  money  by  persons  not  licensed  or  regis- 
tered, can  constitutionally  attach  the  same  condition  to  a  single  transaction  of 
a  kind  not  likely  to  occur  otherwise  than  as  an  instance  of  a  general  practice, 
such  as  the  treatment  of  a  single  patient  for  hay  fever  by  osteopathy-^"*" 

Applicability  of  Statute — Construction  by  State  Courts. — In  determin- 
ing the  constitutionality  of  such  a  statute,  the  federal  supreme  court  will  ac- 
cept the  construction  of  the  state  courts  as  to  who  are  persons  practicing  med- 
icine within  its  terms.^"^ 

cYi.  Use  of  Name  or  Portrait  of  Individual  for  Advertising  Purposes. — It  is 
within  the  power  of  the  legislature  to  forbid  the  use  of  the  names  or  portraits 
of  individuals  for  advertising  purposes  without  the  written  consent,  first  had 
and  obtained,  of  the  person  whose  name  or  portrait  it  is  desired  to  use,  and  to 
give  a  right  of  action  to  the  person  whose  name  or  portrait  is  so  used.  Such  a 
statute  may  discriminate  as  between  the  rights  of  an  earlier  and  later  time,  and 
is  not  obnoxious  to  constitutional  objections  because  it  is  made  to  apply  to  and 
forbid  the  use  of  photographs  taken  thereafter  and  not  to  those  taken  before 
its  enactment. ^^^^ 

c^.  Advertising  in  or  on  Public  Convey  apices,  in  Streets,  Highways,  and 
Other  Public  Places. — A  municipal  ordinance  prohibiting  the  use  of  advertising 
trucks,  vans,  or  wagons  in  the  city  streets  is  a  valid  exercise  of  the  police 
power.^"'' 

Equal  Protection  of  the  Laws. — And  the  equal  protection  of  the  laws  is 
not  denied  to  a  stage  coach  company  by  a  municipal  ordinance  prohibiting  the 
use  of  advertising  trucks,  vans,  or  wagons  in  the  city  streets,  because  "ordinary 
business  wagons"  when  "engaged  in  the  usual  business  or  regular  work  of  the 
owner,  and  not  used  merely  or  mainly  for  advertising,"  are  expressly  permitted 
to  exhibit  "business  notices,"  nor  because  advertising  is  allowed  on  the  stairs 
of  the  elevated  railways  and  on  elevated  structures.-'' '^'^ 

e.  Suppression  of  Monopolies  and  Combinations  in  Restraint  of  Trade. — See 
ante.  Monopolies  and  Corporate  Trusts,  p.  87'4. 

h.  Inspection  Laws. — See  ante,  Inspection  Laws,  p.  670;  Interstate  and 
Foreign  Commerce,  p.  689. 

j.  Licenses;  Occupation  Taxes. — See  ante,  Interstate  and  Foreign  Com- 
merce, p.  689;  Intoxicating  Liquors,  p.  803;  Licenses,  p.  826;  post.  Tax- 
ation. 

526-47e.    Single  acts  and  transactions. —  other  public  places. — Fifth  Ave.  Coach  Co. 

Collins  V.  Texas,  223  U.  S.  288,  50  L.   Ed.  v.    New    York,    221    U.    S.    467,    55    L.    Ed. 

439,  32  S.  Ct.  286.  815,  31  S.  Ct.  709,  affirming  decree   (1909), 

526-47f.    Applicability  of    statute— Con-  86  N.  E.  824,  194  N.  Y.  19,  21  L.  R.  A.  (N. 

struction  by  state  court. — Collins  v.  Texas,  S.)   744,  16  A.  &  E.  Ann.  Cas.  695,  which 

223  U.  S.  288,  50  L.  Ed.  439,  32  S.  Ct.  286.  affirms    (1908),    110    N.    Y.    S.    1037,    which 

The  ruling  of  the  state  court  that  osteo-  affirms  111   N.  Y.  S.  759.     See,  also,  ante, 

paths    are    persons    practicing    medicine,  SERVANT,  p.  851. 

within    the    meaning   of   Tex.    Laws    1907,  527-50c.    Equal  protection  of  the  laws. 

chap.  123,  providing-  for  licensing  and  reg-  — Fifth  Ave.  Coach  Co.  v.  New  York,  221 

istering  medical  practitioners,  will  be  fol-  U.  S.  467,  55  L.  Ed.  815,  31  S.  Ct.  709,  af- 

lowed  by  the  federal  supreme  court  in  de-  firming  194  N.   Y.   19,  86  N.   E.  824,  21   L. 

termining    the    constitutionality     of      such  R.   A.    (N.   S.)    744,   16   A.   &   E.   Ann.   Cas. 

statute  on  writ  of  error  to  the  state  court.  695,   which   affirms   110   N.   Y.   1037,   which 

Collins  V.  Texas,  223  U.   S.  288,  50  L.   Ed.  affirms   111   N.  Y.  759. 

439,  32  S.   Ct.  280.  Display   of   advertisements   for   hire   by 

527-50a.    Use  of  name  or  portrait  of  in-  stage      company. — See,      generally,      ante, 

dividual       for      advertising      purposes.—  DUE   PROCESS   OF   lAw,  p.   475.     As 

Sperry,  etc.,  Co.  v.  Rhodes,  220  U.  S.  502,  to  the   impairment  of  contract  or  charter 

55  L.  Ed.  561,  31  S.  Ct.  490.  rights,      see     ante,      IMPAIRMENT     OF 

527-50b.     Advertising    in    or    on    public  OBLIGATION     OF     CONTRACTS,     p. 

conveyances,   in    streets,    highways,     and  024. 

970 


Vol.  IX. 


POLICE  POJJ  ER. 


529 


k.  Regulation  of  the  Relation  of  Master  and  Sen-ant;  Protection  of  Em- 
ployees, etc. —  (1)    Generally. — See  note  56. 

(3)  Protection  of  Laborer  against  Himself;  Legislature  Takes  Xotice  That 
Employer  and  Employee  Xot  upon  an  Equal  Footing. — See  note  59. 


529-56.  Relation  of  master  and  servant 
— Protection  of  employees — Generally. — 
In  dealing  with  the  relation  of  employer 
and  employed,  the  legislature  has  neces- 
sarily a  wide  field  of  discretion  in  order 
that  there  may  be  suitable  protection  of 
health  and  safety,  and  that  peace  and 
good  order  may  be  promoted  through 
regulations  designed  to  insure  wholesome 
conditions  of  work  and  freedom  from  op- 
pression. What  differences,  as  to  the  ex- 
tent of  this  power,  may  exist  with  respect 
to  particular  employments,  and  how  far 
that  which  may  be  authorized  as  to  one 
department  of  activity  may  appear  to  be 
arbitrary  in  another,  must  be  determined 
as  cases  are  presented  for  decision.  Chi- 
cago, etc..  R.  Co.  V.  McGuire,  219  U.  S. 
549,  55  L.  Ed.  32S.  31  S.  Ct.  259.  See.  gen- 
erally, ante.  FELLOW  SERVANTS,  p. 
579;  INTERSTATE  AND  FOREIGN 
COMMERCE,  p.  689;  MASTER  AND 
SERVANT,  p.  851. 

As  to  federal  Employers'  Liability 
Acts,  and  as  to  the  validity  of  state  Em- 
ployers' Liability  Acts  in  so  far  as  they 
affect  interstate  commerce,  see  ante,  IN- 
TERSTATE AND  FOREIGN  COM- 
MIE RCE,  p.   689. 

529-59.  Protection  of  laborer  against 
himself — Legislature  takes  notice  that  em- 
ployer and  employee  not  upon  an  equal 
footing. — It  is  well  established'  that,  so 
far  as  its  regulations  are  valid,  not  being 
arbitrary  or  unrelated  to  a  proper  pur- 
pose, the  legislature  undoubtedly  may 
prevent  them  from  being  nullified  by  pro- 
hibiting contracts  which,  by  modification 
or  waiver,  would  alter  or  impair  the  ol)li- 
gation  imposed.  Chicago,  etc.,  R.  Co.  z'. 
IvIcGuire,  219  U.  S.  549,  55  L.  Ed.  328,  31 
S.   Ct.  259. 

As  was  pointed  out  in  Holden  f.  Hardy, 
169  U.  S._366,  42  L.  Ed.  780,  18  S.  Ct.  383: 
"The  legislature  has  also  recognized  the 
fact,  which  the  experience  of  legislators 
in  many  states  has  corroborated,  that  the 
proorietors  of  these  establishments  and 
their  operatives  do  not  stand  upon  an 
eqiiality,  and  that  their  interests  are,  to 
a  certain  extent,  conflicting.  The  former 
naturallv  desire  to  obtain  as  much  labnr 
as  possible  from  their  employees,  while 
the  latter  are  often  induced  bj^  the  fear 
of  discharge  to  conform  to  regulations 
which  their  judgment,  fairly  exercised, 
would  pronounce  to  be  detrimental  to 
their  health  or  strength.  In  other  words, 
the  proprietors  lay  down  the  rules  and 
the  laborers  are  practically  constrained 
to  obey  them.  In  such  cases  self-interest 
is  often  an  unsafe  guide,  and  the  legisla- 

12  U  S  Enc— 62  9 


ture  may  properly  interpose  its  authority 
*  *  *.  But  the  facts  that  both  parties 
are  of  full  age  and  competent  to  contract 
does  not  necessarily  deprive  the  state  of 
the  power  to  interfere  v%-here  the  parties 
do  not  stand  upon  an  equality,  or  where 
the  public  health  demands  that  one  party 
lo  the  contract  shall  be  protected  against 
himself.  'The  state  still  retains  an  in- 
terest in  his  welfare,  however  reckless  he 
may  be.  The  whole  is  no  greater  than 
the  sum  of  all  the  parts,  and  when  the 
individual  health,  safety,  and  welfare  are 
sacrificed  or  neglected,  the  state  must 
suffer.' "  Chicago,  etc.,  R.  Co.  v.  ^Ic- 
Guire,  219  U.  S.  549,  55  L.  Ed.  328,  31  S. 
Ct.  259. 

In  the  cases  within  its  purview  it  ex- 
tended the  liability  of  the  common  law 
by  abolishing  the  fellow-servant  rule. 
Having  authority  to  establish  this  regu- 
lation, it  is  manifest  that  the  legislature 
was  also  entitled  to  insure  its  efficacj^  by 
prohibiting  contracts  in  derogation  of  its 
provisions.  In  the  exercise  of  this  power, 
the  legislature  was  not  limited  with  re- 
spect either  to  the  form  of  the  contract, 
or  the  nature  of  the  consideration,  or  the 
absolute  or  conditional  character  of  the 
engagement.  It  was  as  competent  to 
prohibit  contracts  which,  on  a  specified 
event,  or  in  a  given  contingency,  should 
operate  to  relieve  the  corporation  from 
the  statutory  liability  which  would  other- 
wise exist,  as  it  was  to  deny  validity  to 
agreements  of  absolute  waiver.  Chicago, 
'-tc,  R.  Co.  V.  McGuire,  219  U.  S.  549,  55 
L.    Ed.   328.   31    S.    Ct.   259. 

The  freedom  of  contract  is  not  uncon- 
stitutionally infringed  by  amending  the 
provisions  of  Code  Iowa,  §  2071,  which 
define  the  liability  of  railway  corporations 
for  injuries  resulting  from  negligence  and 
mismanagement  in  the  use  and  operation 
of  their  railways,  so  that  a  railway  com- 
pany, when  sued  on  such  liability,  is  pre- 
cluded from  making  the  defense  that  a 
recovery  is  barred  by  the  acceptance  of 
benefits  under  a  contract  of  membership 
in  its  relief  department.  Chicago,  etc.,  R. 
Co.  z\  McGuire,  219  U.  S.  549,  55  L.  Ed. 
328,  31  S.  Ct.  259,  affirming  judgment  in 
McGuire  v.  Chicago,  B.  &  Q.  R.  Co. 
(1908),  116  N.  W.  801.  138  Iowa  664.  See. 
also,  ante,  DUE  PROCESS  OF  LAW,  p. 
475:  INTERSTATE  AND  FOREIGN 
COMMERCE,  p.  689. 

Membership  in  railway  relief  depart- 
ment operating  as  a  release  of  damages. — 
As  to  the  power  of  congress  to  provide 
that  the  acceptance  of  benefits  under  a 
contract   of  membership   in   a   railway   re- 


530 


POLICE  POWER. 


Vol.  IX. 


(53/^)  Civil  Liability  for  Death  or  Injury  of  Employee,  Generally. — The 
civil  liability  of  employers  for  the  death  or  injury  of  their  employees,  resulting 
from  their  negligence,  is  a  matter  of  public  concern,  and  not  of  mere  private 
right,  it  is  closely  connected  with  the  safety  of  the  employees,  and  belongs  to 
that  class  of  subjects  over  which  the  legislature  possesses  a  regulatory  but  not 
a  contracting  power.^^^ 

(6)  Abolishing  or  Modifying  the  Doctrine  of  Fellow  Servants. — See,  gen- 
erally, ante,  Constitutional  Law,  p.  264;  Fellow  Servants,  p.  579;  Master 
AND  Servant,  p.  851.  As  to  federal  employers'  liability  acts,  and  state  acts 
alleged  to  unlawfully  interfere  with  interstate  commerce,  see  ante,  Interstate 
AND  Foreign  Commerce,  p.  689. 

(6^)  Abolishing  or  Modifying  Doctrine  of  Comparative  and  Contributory 
Negligence. — See  references  above  under  "Abolishing  or  ^Modifying  the  Doc- 
trine of  Fellow  Servants,"  VI,  K,  4,  k,  (6). 

(7)  Securing  Payment  of  Wages  Promptly  and  in  Money — (a)  Generally — 
Assignments  of  Wages. — A  statute  making  invalid  against  the  employer  as- 
signments of,  or  orders  for,  wages  to  be  earned  in  the  future,  unless  recorded, 
accepted  in  writing  by  the  employer,  and  accompanied  by  the  written  consent 
of  the  wife  of  the  employee,  is  a  valid  exercise  of  the  police  power  and  does 
not  deny  due  process  of  law  to  the  assignee. '^^'^ 

(8)  Limiting  Days  and  Hours  of  Employment — (b)  Eight-Hour  Lazi's.— 
See  note  65. 

(9)  Prohibiting  the  Discharge  of  Employees  because  of  Membership  in  La- 
bor Organization. — See  ante,  DuE  Process  of  Law,  p.  475. 

1.   Imitations  and  Adulterations. — The   police  power  of   the   state   extends  to 


lief  department  shall  not  operate  to  bar 
a  recovery  of  damages  for  the  death  or 
injury  of  an  employee,  and  to  avoid  any 
agreement  to  that  effect,  see  ante.  IN- 
TERSTATE AND  FOREIGN  COM- 
MERCE, p.  689. 

530-63a.  Civil  liability  for  death  or  in- 
jury of  employees,  generally. — Texas,  etc., 
R.  Co.  v.  Miller,  221  U.  S.  408,  55  L.  Ed. 
789,  31  S.  Ct.  534.  See,  generally,  ante. 
CONSTITUTIONAL  LAW,  p.  264; 
DUE  PROCESS  OF  LAW,  p.  475;  FEL- 
LOW SERVANTS,  p.  579;  MASTER 
AND  SERVANT,  p.  851. 

As  to  federal  Employers'  Liability  Acts, 
and  state  acts  alleged  to  unlawfully  inter- 
fere with  interstate  commerce,  see  ante, 
INTERSTATE  AND  FOREIGN  COM- 
MERCE, p.  689. 

As  to  powers  of  territorial  legislatures, 
see  ante,  CONSTITUTIONAL  LAW,  o. 
264. 

As  to  contracts  designed  to  modify  or 
restrict  the  statutory  or  common-law  lia- 
bility of  the  master  for  the  death  or  in- 
jury of  the  sejvant,  see  ante,  INTER- 
STATE AND  FOREIGN  COMMERCE. 
p.  GS9.  See,  also,  ante,  "Protection  of  La- 
borer against  Himself — Legislature  Takes 
Notice  That  Employer  and  Employee  Not 
upon  an  Equal  Footing,"  VI,  K,  4,  k,  (3). 

A  provision  in  a  railway  charter  ex- 
empting the  company  from  liability  for 
the  death  of  any  person  in  its  service, 
even  if  caused  by  its   negligence,   creates 


no  contract  right  protected  against  repeal 
by  the  contract  clause  of  the  federal  con- 
stitution, since  the  subject  is  one  over 
which  the  legislature  possesses  a  regulat- 
ing but  not  a  contracting  power.  Texas, 
etc.,  R.  Co.  f.  Miller,  221  U.  S.  408,  55  L. 
Ed.  789.  31  S.  Ct.  534.  affirming  judgment 
(Tex.  Civ.  App.  1910),  128  S.  W.  1165; 
Texas,  etc.,  R.  Co.  v.  Gross,  221  U.  S.  417, 
55  L.  Ed.  796,  31  S.  Ct.  536,  affirming 
judgment  (Tex.  Civ.  App.  1910),  128  S. 
W    1173. 

Forbidding  miners  working  upon  quan- 
tity rates  from  contracting  upon  basis  of 
screened  coal. — See  post,  "Operation  of 
Mines."  VI,   K,  5,  s. 

530-63b.  Assignments  of  wages. — Mu- 
tual Loan  Co.  v.  Martell,  222  U.  S.  225,  56 
L.  Ed.  175,  32  S.  Ct.  74,  affirming  judg- 
ment (1909),  86  N.  E.  916,  200  Mass.  482. 
See.  also,  ante,  CONSTITUTIONAL 
LAW.   p.   264. 

530-65.  Eight-hour  laws. — See,  gener- 
ally, ante,  CONSTITUTIONAL  LAW, 
p.    264;    LABOR,    p.    816. 

Discrimination  between  male  and  fe- 
male employees.— Rights  under  the  four- 
teenth amendment  to  the  federal  constitu- 
tion are  not  infringed  by  the  limitation 
of  tlie  hours  of  labor  of  women  employed 
in  laundries  to  ten  hours  daily  which  is 
made  by  Oregon  Laws,  1903,  p.  148,  al- 
though like  legislation  affecting  male  em- 
ployees mav  be  invalid.  ]\Iuller  r.  Oregon, 
208  U.  S.  412,  52  L.  En.  551,  28  S.  Ct.  324. 


978 


Vol.  IX. 


POLICE  POWER. 


530 


the  prevention  of  the  manufacture  and  sale  of  adulterated  articles,  and  to  re- 
quiring the  publication  of  their  composition. ^^^ 

m.  Fraudulent  and  J'oliintary  Conveyances — (1)  Generally. — See,  generally, 
ante.  Fraud  and  Deceit,  p.  597;  Fraudulent  and  Voluntary  Conveyances, 
p.  600. 

(2)  Sales  in  Bulk  Acts. — Disposing  of  a  stock  in  trade  outside  of  the  regu- 
lar course  of  business,  by  methods  which,  if  uncontrolled,  are  often  resorted 
to  for  the  consummation  of  fraud  to  the  injury  of  innocent  creditors  is  within 
the  lawful  scope  of  the  police  authority  of  the  state.*^'^'' 

n.  Requiring  Public  Service  Companies  to  Discharge  Duties  to  the  Public — 
(1)  Generally. — The  states  have  the  power  to  modify  and  cut  down  property 
rights  to  a  certain  limited  extent  without  compensation,  for  public  purposes^ 
as  a  necessary  incident  of  government,  under  the  power  commonly  called  the 
police  power.  Upon  this  principle,  railroads  and  other  public  service  corpora- 
tions can  be  required  to  fulfill  the  purposes  for  which  they  were  chartered 
and  to  do  what  is  reasonably  necessary  to  serve  the  public  in  the  way  in  which 
they  undertake  to  serve  it,  without  compensation  for  the  performance  of  some 
part  of  their  duties  that  does  not  pay.^^'^  Of  course,  the  fact  that  the  furnish- 
ing of  a  necessary  facility  ordered  may  occasion  an  incidental  pecuniary  loss 
is  an  important  criterion  to  be  taken  into  view  in  determining  the  reasonable- 
ness of  the  order,  but  it  is  not  the  only  one.     As  the  duty  to  furnish  necessary 


530-65a.    Imitations    and    adulterations. 

—Heath,  etc.,  Mfg.  Co.  r.  Worst,  207  U. 
S.  338,  353,  52  L.  Ed.  236,  28  S.  Ct.  114. 
See,  generally,  ante,  CONSTITUTIONAL 
LAW,  p.  264.  See,  also,  ante,  "Food 
Stuffs,"  VI,  J,  6. 

As  to  Pure  Food  and  Drugs  Acts,  state 
and  federal,  see,  generally,  ante.  INTER- 
STATE AND  FOREIGN  COMMERCE, 
p.  689.  As  to  the  adulteration  of  paints, 
see  post,  "Application  of  Principles  to 
Particular  Business,  Trade,  Occupation  or 
Profession,"'  VI,  K,  5. 

530-65b.  Sales  in  bulk  acts. — Lemieux 
1-.  Young,  211  U.  S.  489,  493,  53  L.  Ed.  295, 
29  S.  Ct.  174;  Kidd,  etc.,  Co.  v.  Musselman 
Grocer  Co.,  217  U.  S.  461,  54  L.  Ed.  839, 
31  S.  Ct.  606.  See,  generally,  ante.  CON- 
STITUTIONAL  LAW,  p.  264. 

Due  process  of  law  is  not  denied  retail 
dealers  bj'  the  provisions  of  Gen.  St. 
Conn.  1902.  §§  4868,  4869,  avoiding,  as 
against  creditors,  sales  in  bulk,  unless  no- 
tice of  intention  to  make  such  sale  be  re- 
corded seven  days  before  its  consumma- 
tion, but  such  statute  is  a  valid  exercise 
of  the  police  power  of  the  state.  Judg- 
ment (1907),  Young  V.  Lemieux,  65  A. 
436,  79  Conn.  434,  affirmed.  Lemieux  v. 
Young,  211  U.  S.  489,  53  L.  Ed.  295,  29 
S.   Ct.   174. 

530-65C.  Requiring  public  service  com- 
panies to  discharge  duties  to  the  public — 
Generally — Right  to  compensation. — Mis- 
souri Pac.  R.  Co.  V.  Nebraska,  217  U.  S. 
196,  54  L.  Ed.  727,  30  S.  Ct.  461;  Missouri 
Pac.  R.  Co.  V.  Railroad  Commr's,  216  U. 
S.  262,  54  L.  Ed.  472,  30  S.  Ct.  330;  Wis- 
consin, etc..  Railroad  v.  Jacobson,  179  U. 
S.   287,   45   L.   Ed.   194,   21    S.   Ct.   115;   At- 


lantic, etc.,  R.  Co.  c'.  North  Carolina 
Corp.  Comm.,  206  U.  S.  1,  51  L.  Ed.  933, 
27  S.  Ct.  585.  See,  also,  ante,  CARRIERS, 
p.  2] 6;  INTI^RSTATE  AND  FOREIGN 
COMMERCE,  p.  689.  See,  also,  post, 
"Regulation    of    Rates,"    VI,    L. 

Suspending  collection  of  tolls  until 
turnpike  put  in  order. — This  principle  has 
been  appHed  to  the  case  of  a  turnpike 
company  as  to  which  it  was  held  that, 
conformably  to  a  state  statute,  the  col- 
lection of  tolls  by  the  company  might  be 
suspended  until  its  roads  should  have 
been  put  in  proper  repair,  and  that  the 
property  of  the  company  was  not  taken 
without  due  process  of  law  contrary  to 
the  provisions  of  the  fourteenth  amend- 
ment in  such  case  because  the  travel  did 
not  yield  a  sufficient  revenue  to  keep  ths 
roads  in  good  order.  Norfolk,  etc..  Turn- 
pike Co.  V.  Virginia,  225  U.  S.  264,  56  L. 
Ed.   1082,    32    S.    Ct.    828. 

Unreasonable  requirements  as  to  gas 
pressure. — The  requirements  as  to  gas 
pressure  made  by  N.  Y.  Laws  1905,  chap. 
736,  and  Laws  1906,  chap.  125,  fi.xing  gas 
rates  in  New  York  city,  are  confiscatory, 
where,  to  put  this  pressure  upon  the 
mains  and  other  service  pipes,  in  their 
present  condition,  is  to  run  a  great  risk 
of  explosion  and  consequent  disaster,  and 
to  eliminate  such  danger  requires  an 
expenditure  of  many  millions  of  dollars, 
from  which  no  return  can  be  had  at  the 
rates  established  by  those  acts.  Willcox 
V.  Consolidated  Gas  Co.,  212  U.  S.  19,  53 
L.    Ed.    382,    29  .S.    Ct.    192. 

Compelling  water  company  to  make 
service  connections  at  pecuniary  loss. — 
See  post.  WATER  COMPANIES  AND 
WATERWORKS. 


979 


530  POLICE  POWER.  Vol.  IX. 

facilities  is  coterminous  with  the  powers  of  the  corporation,  the  obligation  to 
discharge  that  duty  must  be  considered  in  connection  with  the  nature  and  pro- 
ductiveness of  the  corporate  business  as  a  whole,  the  character  of  the  services 
required,  and  the  public  need  for  its  performance.'^'^'^  Where  a  duty  which  a 
corporation  is  obliged  to  render  is  a  necessary  consequence  of  the  acceptance 
and  continued  enjoyment  of  its  corporate  rights,  those  rights  not  having  been 
surrendered  by  the  corporation,  other  considerations  are,  in  the  nature  of  things, 
paramount,  since  it  can  not  be  said  that  an  order  compelling  the  performance 
of  such  a  duty  at  a  pecuniary  loss  is  unreasonable.  To  conclude  to  the  contrary 
would  be  but  to  declare  that  a  corporate  charter  was  purely  unilateral;  that  is, 
was  binding  in  favor  of  the  corporation  as  to  all  rights  conferred  upon  it, 
and  was  devoid  of  obligation  as  to  duties  imposed,  even  although  such  duties 
were  the  absolute  correlative  of  the  rights  conferred.*^^^ 

Distinction  between  Compelling  Discharge  of  Corporate  Duties  and 
Establishment  of  Confiscatory  Rates. — There  is  a  distinction  between  the 
exertion  of  the  legislative  power  to  compel  a  corporation  to  render  a  service 
which  it  is  essentially  its  duty  to  perform  and  an  order  establishing  rates  in 
such  a  manner  as  to  confiscate  the  property  of  a  corporation  by  fixing  them 
below  a  proper  remunerative  standard.  To  illustrate,  it  is  the  primal  duty  of 
a  carrier  to  furnish  adequate  facilities  to  the  public,  and  the  performance  of 
that  duty  may  be  compelled,  although  by  doing  so  some  pecuniary  loss  may 
incidentally  result.  The  mere  incurring  of  such  loss  does  not,  in  and  of  itself, 
necessarily  give  rise  to  the  conclusion  of  unreasonableness;  but  it  would  be 
otherwise  as  to  an  order  fixing  rates  so  low  as  to  render  the  whole  scheme 
unreasonable  and  confiscatory.*'-^^ 

Doctrine  Applicable  to  Both  State  and  Federal  Powers. — The  principle 
here  laid  down  is  applicable  to  the  powers  of  both  the  state  and  national  govern- 
ments, and.  in  so  far  as  those  powers  operate  in  different  orbits,  there  can 
be  no  conflict  between  them;  but  it  is  to  be  observed  that,  resulting  from  the 
paramount  operation  of  the  constitution  of  the  United  States,  even  the  lawful 
powers  of  a  state  can  not  be  exerted  so  as  to  directly  burden  interstate  com- 
merce.^^^ 

(2)  Forbidding  Contracts  Restricting  or  Modifying  C ommon-Lazo  or  Statu- 
tory Liability. — See,  generally,  ante.  Carriers,  p.  216;  Coxstitutional  Law, 
p.  264;  Corporations,  p.  381;  Due  Process  of  Law,  p.  475;  Interstate  axd 
Foreign  Commerce,  p.  689;  post.  Railroads;  Telegraphs  and  Telephones, 
See,  also,  ante,  "Protection  of  Laborer  against  Himself;  Legislature  Takes 
Notice  That  Employer  and  Employee  Not  upon  an  Equal  Footing,"  VI,  K,  4, 
k,  (3)  ;  post,  "Telegraphs  and  Telephones,"  VI,  K,  5,  e.  As  to  the  power  of 
congress  to  outlaw  and  prevent  the  making  of  future  contracts  or  the  carry- 
ing out  of  existing  contracts  for  rebates  reduced  transportation,  etc.,  see  ante, 
Interstate  and  Foreign  Commerce,  p.  689.  As  to  federal  regulations  for- 
bidding contracts  designed  to  waive  or  modify  the  provisions  of  statutes  in- 
tended to  protect  the  employees  of  interstate  carriers,  such  as  that  the  accept- 

530-65d.    Incidental   pecuniary   loss   not  tablishment    of    confiscatory   rates. — Mis- 

the  only  criterion. — Missouri   Pac.   R.   Co.  souri    Pac.    R.    Co.    v.    Railroad    Comni'rs, 

V.  Railroad  Comni'rs.  216  U.   S.  262,  54  L.  216  U.  S.  262,  54  L.  Ed.  472.  30  S.  Ct.  330: 

Ed.  472,  30  S.  Ct.  330;  Atlantic,  etc.,  R.  Co.  Atlantic,    etc.,    R.    Co.   v.    North    Carolina 

V.    North    Carolina   Corp.    Comm..    206   U.  Corp.   Comm.,  206  U.   S.  1,  51   L.   Ed.  933. 

S.  1.  51  L.  Ed.  933,  27  S.  Ct.  585.  27  S.  Ct.  585.     See,  also,  post,  "Regulation 

530-65e.    Same.— Missouri  Pac.  R.  Co.  z:  of  Rates."  VI,  L. 

Railroad    Comm'rs,   216    U.    S.    262,    54    L.  530-65g.     Doctrine    applicable    to     both 

Ed.  472,  30  S.  Ct.  330.  State  and  federal  powers. — Alissouri    Pac. 

530-65f.     Distinctions   between   compell-  R.    Co.    r.    Railroad    Comm'rs,    216    U.    S. 

ing  discharge  of  corporate  duties  and  es-  262.   54   L.    Ed.   472,   30   S.   Ct.   330. 

9S0 


Vol.  IX.  POLICE  POWER.  531 

ance  of  benefits  under  a  contract  of  membership  shall  not  operate  as  a  release 
of  damages,  see  ante,  Interstate  and  Foreign  Commerce,  p.  689. 

5.  Application  of  Principles  to  Particular  Business,  Trade,  Occupa- 
tion OR  Profession — a.  Regulation  of  the  Import  Trade. — See  ante.  Inter- 
state AND  Foreign  Commerce,  p.  689. 

b.  Common  Carriers. — See  ante,  Carriers,  p.  216;  Constitutional  Law, 
p.  264;  Interstate  and  Foreign  Commerce,  p.  689.  See,  also,  post,  "Regula- 
tion of  Rates,"  VI,  K,  et  seq. 

c.  Regulation  of  Railroads. — See,  generally,  ante.  Carriers,  p.  216;  Constitu- 
tional Law,  p.  264 ;  Corporations,  p.  381 ;  Due  Process  of  Law,  p.  475 ;  For- 
eign Corporations,  p.  584;  Interstate  and  Foreign  Commerce,  p.  689;  post. 
Railroads.  See,  also,  ante,  "Requiring  Public  Service  Companies  to  Discharge 
Duties  to  the  Public."  \l.  K.  4.  n.  et  seq. ;    post,  "Regulation  of  Rates,"  VI,  L. 

Equipment  of  Trains,  Number  in  Train  Crew,  etc. — A  railway  com- 
pany is  not  deprived  of  its  property  without  due  process  of  law  by  a  statute 
which  penalizes  the  operation  of  freight  trains  of  more  than  twenty-five  cars 
with  less  than  three  brakemen,  regardless  of  any  equipment  with  automatic 
couplers  and  airbrakes.""^ 

Requiring  Track  Connections,  Interchange  of  Facilities,  etc. — Where 
the  order  requiring  a  railway  company  to  make  a  track  connection  requires  it 
not  only  to  spend  money  but  prevents  it  from  using  for  other  purposes  the  land 
on  which  the  tracks  are  to  be  laid,  it  is  not  a  mere  administrative  regulation, 
but  a  taking  of  property,  and  can  not  be  sustained  merely  because  of  the  fact 
that  the  carrier  has  been  given  an  opportunity  to  be  heard.  Such  an  order  is 
to  be  tested  by  considering  whether,  in  view  of  all  the  facts,  ,the  taking  was 
arbitrary-  and  unreasonable,  or  was  justified  by  the  public  necessities  wdiich' 
the  carrier  could  lawfully  be  compelled  to  meet.  In  other  words,  the  guaranty 
of  the  constitution  extends  to  the  protection  of  fundamental  rights — to  the 
substance  of  the  order  as  well  as  to  the  notice  and  hearing  which  precede  it; 
and  the  mere  form  of  the  proceeding  instituted  against  the  company,  even 
though  it  be  admitted  to  defend,  can  not  convert  the  process  used  into  due  proc- 
ess of  law,  if  the  necessary  result  be  to  deprive  it  of  its  property  without 
compensation."  '"^ 

d.  Street  Raikcays. — The  business  conducted  by  a  street  railway  company 
operating  under  a  franchise  is  not  purely  private.  It  is  of  that  class  so  affected 
by  a  public  interest  that  it  is  subject,  within  constitutional  limits,  to  the  govern- 
mental power  of  regulation.'^ '"^ 

e.  Telegraphs  and  Telephones. — See,  generally,  ante.  Constitutional  Law, 
p.  264;  Interstate  and  Foreign  Commerce,  p.  689;  post.  Telegraphs  and 
Telephones.     As  to  stipulations  limiting  the  common-law  or  statutory  liability 

531-7ba.     Equipment    of    trains,    number  r.    Ames,    169    U.    S.    466.    43    L-    Ed.    819; 

in  train  crew,  etc. — Chicago,   etc.,   R.   Co.  Chicago,  etc.,  R.  Co.  v.  Thompkins.  176  U. 

z:  Arkansas,  219  U.  S.  453,  55  L.  Ed.  290,  S.  167.  173,  44  L.  Ed.  417.     See,  generally, 

31   S.   Ct.   275,  affirming  judgment   (1908),  ante.  DUE  PROCESS  OF  LAW,  p.  475; 

111  S.  W.  456,  86  Ark.  412.     See,  also,  on  INTERSTATE   AND    FOREIGN    COM- 

this  point,    ante,     INTERSTATE     AND  MERCE.  p.   689;   post.   RAILROADS. 

FOREIGN  COMMERCE,  p.  689.  531-70c.       Street      railways.— Honolulu, 

531-70b.    Requiring  track  connections —  etc..    Land   Co.  z:   Hawaii.   211   U.   S.  282, 

Interchange  of  facilities,  etc. — Oregon  R.,  290.  53  L.  Ed.  186,  29  S.  Ct.  55.     See,  gen- 

etc.  Co.  z:  Fairchild,  224  U.  S.  510.  523.  56  erally,  post,  STREET  RAILWAYS.     And 

L.  Ed.  863,  32  S.  Ct.  535,  citing  Chicago,  see  post,  "Regulation  of  Rates,"  VI,  L. 

etc.,  R.  Co.  V.  Chicago,  166  U.  S.  226,  236,  As  to  the  exercise  of  legislative  or  ad- 

41  L.  Ed.  979;  Missouri  Pac.  R.  Co.  z".  Ne-  ministrative    functions    by     the      judiciary 

braska    164  U.  S.  403,  416.  41  L.  Ed.  489;  with   respect  to  street  railways,  see  ante, 

Chicago,  etc.,  R.  Co.  z:  Minnesota,  134  U.  CONSTITUTIONAL  LAW,  p.  264. 
S.  418,  33  L.  Ed.  970,  10  S.  Ct.  462;  Smyth 

981 


533  POLICE  POWER.  \o\.  IX. 

of  such  companies,  and  the  power  of  the  state  to   forbid  the  same,  see  post. 
Telegraphs  and  Telephones. 

f.  Warehouses  and  Elevators. — As  to  regulations  concerning  elevators  and 
warehouses  as  instruments  of  interstate  and  foreign  commerce,  see  ante.  Inter- 
state AND  Foreign  Commerce,  p.  689. 

g.  Port  and  Harbor  Regulations. — See  ante,  Constitutional  Law,  p.  264; 
Due  Process  of  Law,  p.  475;  Interstate  and  Foreign  Commerce,  p.  689; 
Navigable  Waters,  p.  914;    Pilots,  p.  950;    post.  Ships  and  Shipping;  etc. 

h.    Pilots  and  Pilotage.— See  ante.  Pilots,  p.  950. 

i.  Wharves  and  JVharfage. — See,  generally,  ante.  Interstate  and  Foreign 
Commerce,  p.  689;  Navigable  Waters,  p.  914;  post,  Wharves  and  Wharf- 
ingers. As  to  compensation  for  the  taking  or  injury  of  property  rights  in 
private  wharves,  the  right  to  the  exclusive  use  of  the  same,  etc.,  see  ante,  DuE 
Process  of  Law,  p.  475. 

j.  Insurance. — Generally. — Insurance  companies,  in  common  with  all  cor- 
porations, associations,  and  individuals,  within  the  jurisdiction  of  a  state,  are 
subject  to  such  regulations,  in  respect  of  their  relative  rights  and  duties,  as 
the  state  may,  in  the  exercise  of  its  police  power,  and  in  harmony  with  its  own 
and  federal  constitution,  prescribe  for  the  public  convenience  and  the  general 
good.  Regulations  having  a  real,  substantial  relation  to  that  end,  and  which 
are  not  essentially  arbitrary,  can  not  properly  be  characterized  as  a  deprivation 
of  property  without  due  process  of  law.  They  are  enacted  under  the  power 
with  which  the  states  have  never  parted,  of  caring  for  the  common  good  within 
the  limits  of  constitutional  authority." ^^ 

Combinations  to  Control  Prices. — The  business  of  fire  insurance  is  of 
an  extensive  and  peculiar  character,  and  its  management  concerns  a  very  large 
number  of  people,  particularly  those  w^ho  own  property  and  desire  to  protect 
themselves  by  insurance.  Fire  insurance  companies,  acting  together,  may  have 
owners  of  property  practically  at  their  mercy  in  the  matter  of  rates,  and  may 
have  in  their  power  to  deprive  the  public  generally  of  the  advantages  flowing 
from  competition  between  rival  organizations  engaged  in  the  business  of  fire 
insurance.  In  order  to  meet  the  evils  of  such  combinations  or  associations,  the 
state  is  competent  to  adopt  appropriate  regulations  that  will  tend  to  substitute 
competition   in  the  place  of  combination  or  monopoly.'' ^^ 

533-73a.  Insurance — Generally. — German  such  statute  is  a  valid  exercise  of  the  po- 

Alliance   Ins.   Co.  v.   Hale,  219  U.   S.   307,  lice  power  of  the  state,  to  discourage  mo- 

55  L.  Ed.  229,  31  S.  Ct.  246,  citing  Jacob-  nopolies  and  to  encourage  competition  in 

son    V.    Massachusetts.    197    U.    S.    11,    31,  the    matter    of    insurance    rates.      German 

49  L.  Ed.  643,  25   S.   Ct.  358;   Lake  .Shore,  Alliance    Ins.    Co.   z:    Hale,   219   U.   S.   307, 

etc.,    R.  Co.    7'.  Ohio,    173    U.  S.    285,    297,  55  L.  Ed.  229,  31  S.  Ct.  246. 

43    L.    Ed.    702,    19    S.    Ct.    465:    House   z'.  An   insurance   company  connected  with 

J\Tayes,   ^19   U.    S.   270,    55   L.    Ed.   213,    ?1  a    tariff    association    which    fixes    rates    is 

vS    Ct.  234.     See,  generally,   ante,   IXSUR-  act    denied    the    eaual    protection    of    the 

ANCE,  p.   674.      ^        _  laws  by  Code  Ala.  1896,  §§  2619,  2620,  un- 

533-73b.    Combinations  to  control  prices.  (ler  which  the  insured  or  beneficiary  in  a 

— German   Alliance    Ins.   Co.   z'.    Hale.   219  policy   issued   by   such    company   may   re- 

U.    S.   307,   55    L.    Ed.   229,   31    S.    Ct.   246;  cover,    in    addition    to   the    actual    loss    or 

Carroll  v.   Greenwich   Ins.   Co.,   199  U.   S.  damage,  25  per  cent  of  the  amount  of  such 

401,  411,  50  L.  Ed.  246.  26  S.   Ct.  66.  actuaf  loss  or  damage,   since   such   statute 

Due  process  of  law  is  not  denied  to  an  places   upon   an   equality   in   every   respect 

insurance  company  connected  with  a  tariff  all   insures   which,   at   the   time   of  issuing 

association    which    fixes    rates,    by    Code  the    insurance,    or    subsequently,    and    be- 

Ala.   1896,   §§  2619,   2620,  under  vv'hich   the  fore  trial,  were  in  any  way  connected  with 

insured   or   beneficiary  in   a   policy   issued  any    other    persons,    associations,    or    cor- 

by    such    company   may   recover,    in    addi-  porations   which    acted   together   in    fixing 

tion  to  the  actual  loss,  25  per  cent  of  the  insurance    rates.      German    Alliance      Ins. 

amount    of    such    actual    loss    or    damage,  Co.  v.  Hale,  219  U.  S.  307,  55   L.   Ed.  229, 

any   stipulation   in   the   contract   of   insur-  31   S.   Ct.  246. 

ance  to  the  contrary  notwithstanding;  but  "It  was  for  the  state,  keeping  within  the 

982 


Vol.  IX.  POLICE  POWER.  533-536 

Reorganization  of  Insurance  Companies  by  State. — A'ested  rights,  priv- 
ileges, or  property  rights  of  the  members  of  an  association  insuring  lives  upon 
the  co-operative  plan  are  not  taken  without  due  process  of  law,  nor  is  the 
obligation  of  any  contract  right  impaired  by  the  reorganization,  pursuant  to 
state  law,  of  such  association  as  a  mutual  level  premium  company  under  a  new 
name  and  without  the  consent  of  the  members."^^*^ 

1.  Sale  of  Drugs,  Poisons,  etc. — As  to  the  national  Pure  Food  and  Drugs 
Act,  see  ante.  Interstate  and  Foreign  Commerce,  p.  689. 

m.  Mafuifacturc  and  Sale  of  Into.vicafing  Liquors. — See,  generally,  ante, 
Interstate  and  Foreign  Commerce,  p.  689;  Intoxicating  Liquors,  p.  803; 
Licenses,  p.  826;  post.  Taxation.  That  an  ordinance  regulating  the  sale  of 
intoxicants  in  the  original  package  under  the  authority  of  the  Wilson  Act  is 
not  unconstitutional  because  it  results  in  raising  some  revenue,  see  ante,  "Must 
Be  Reasonable;  Arbitrary  Interference  Not  Permissible,"  VI,  K,  3,  d,  (1). 
As  to  the  validity  of  a  state  law  requiring  the  publication  and  registry  of  re- 
ceipts for  payment  of  federal  internal  revenue  tax  upon  the  business  of  selling 
intoxicating  liquors,  see  ante,  "Neither  Government  to  Control  the  Discretion 
Nor  to  Interfere  with  the  Exercise  of  the  Acknowledged  Powers  of  the 
Other,"  II,  A,  5,  a,  (5). 

o.  Manufacture  and  Sale  of  Food  Stuffs. — See,  generally,  as  to  pure  food 
laws,  state  and  national,  ante.  Interstate  and  Foreign  Commerce,  p.  689. 
See,  also,  ante,  "Food  Stuffs,"  Yl,  J,  6. 

r.  Hawkers,  Peddlers,  Hucksters,  etc. — As  to  whether  the  exaction  of  a  li- 
cense tax  from  such  individuals  is  an  interference  with  interstate  commerce, 
see  ante,  Interstate  and  Foreign  Commerce,  p.  689. 

s.    Operation  of  Mines. — See  note  86. 

V.  Laundries. — See  ante,  Constitutional  Law,  p.  264.  As  to  discrimina- 
tions in  working  hours  of  employees  based  on  sex,  see  ante,  "Must  Be  Reason- 
able; Arbitrarv  Interference  Not  Permissible,"  Yl,  K,  3,  d,  (1)  ;  "Eight-Hour 
Laws,"  VI,  K,  4,  k,  (8),  (b),  et  seq. 

X.    Gift  Enterprises. — A  "gift  enterprise"  is  defined  to  be  "a  scheme  for  the 

limits  of  its  constitutional  powers,  to  say  of  the  weight  of  the  coal  as  originally  pro- 

what  particular  means  it  would  prescribe  duced  in  the  mine,  but  such   statute  is  a 

for   the    protection   of   the   public   in   such  valid  exercise  of  the  police  power.  Judg- 

matters.     The  court  certainly  can  not  say  ment    (190G),   98    S.   W.   729,   81    Ark.    304. 

that  the   means  here   adopted  are   not,   in  affirmed.  '  ]\IcLean  v.  Arkansas,  211  U.  S. 

any  real  or  substantial  sense,  germane  to  539,  53   L.   Ed.   315,  29  S.   Ct.  206. 

the  end  sought  to  be  attained  by  the  stat-  The   exemption  of  coal  mines   not  em- 

ute.     Those   means   may   not   be   the   best  ploying  ten  or  more  men  from  the  opera- 

that  could  have  been  devised,  but  tiie  court  tion  of  Acts  Ark.  1905,  p.  558.  c.  219,  §  1, 

can  not,  for  any  such  reason,  declare  them  under  which  miners  employed  at  quantity 

illegal  or  beyond  the  power  of  the   state  rates  are  prevented  from  contracting  for 

to   establish."     German   Alliance   Ins.   Co.  wages    upon    the    basis    of    screened    coal 

7'.   Hale,   219   U.   S.   307,   55   L.   Ed.  220,   31  instead  of  the  weight  of  the  coal  as  origi- 

S.   Ct.  246.  nally    produced    in    the    mine,     does      not 

533-730.      Reorganization    of    insurance  render   such   statute   invalid   under   Const. 

companies  by  state. — Polk  f.  Mutual,  etc.,  U.  S.  amendment  fourteen,  as  denying  the 

Life   Ass'n,   207   U.   S.   310,   52   L.   Ed.   222,  equal   protection   of   the   laws.      Judgment 

28    S.    Ct.    65.      See,    also,    ante,    IMPAIR-  (1906),  98  S.  W.  729,  81  Ark.  304,  affirmed. 

MENT    OF    OBLIGATION    OF    CON-  McLean  z:  Arkansas,  211  U.  S.  539,  53  L. 

TRACTS,   p.   624,  Ed.  315,  29   S.   Ct.   206. 

536-86.    Operation  of  mines — Wages  of  Use    of   powder   and   other    explosives; 

employees. — The      libertj^       of       contract  power   to   regulate   size   and   character  of 

secured    by    Const.    U.  S.,    14th    Amend..  package,     etc. — See     ante.      CONSTITU- 

against    state    invasion,    is     not    infringed  TIONAL  LAW,  p.  264;  DUE  PROCESS 

by     the    provision     of     Act     Ark.     1905.  OF  LAW,  p.  475:   INTERSTATE   AND 

p.    558,    c.    219,    §    1,     rmder    which    m.in-  FOREIGN    COMMERCE,    p.    689.      See, 

ers      employed      at     quantity     rates      are  also,    post,    '"Powder    and    Other    Explo- 

prevented    from    contracting     for      wages  sives,"  VI,  K,  5,  z,  ii. 
upon    the    basis    of   screened    coal   instead 

983 


538  POLICE  POWER.  Vol.  IX. 

division  or  distribution  of  certain  articles  of  property,  to  be  determined  by 
chance,  amongst  those  who  have  taken  shares  in  the  scheme."  So  defined, 
it  can  not  be  said  that  the  words  necessarily  include  conduct  which  lies  out- 
side the  range  of  the  legislative  interference  in  the  exercise  of  police  power. 
In  other  words,  a  business  or  enterprise  coming  within  the  scope  of  this  def- 
inition is  within  the  range  of  the  police  power  to  regulate  or  prohibit. ^^'^ 

y.  Banks  and  Banking. — A  person  desiring  to  engage  in  the  banking  business 
has  no  such  constitutional  right  to  carry  it  on  at  will  as  to  raise  him  above 
state  laws  designed  to  regulate  that  business  and  not  manifestly  unfit  to  accom- 
plish the  supposed  end,  nor  greatly  in  excess  of  the  need,  nor  arbitrary  and 
capricious  in  discrimination.^^'' 

z.  Brokerage  and  Commission  Business;  Dealing  in  Futures,  etc. — See  ante, 
Brokers,  p.  212;  Interstate  and  Foreign  Commerce,  p.  689.  As  to  gam- 
bling, option,  and  margin  contracts,  see  ante.  Constitutional  Law^,  p.  264; 
Due  Process  of  Law,  p.  475;  Interstate  and  Foreign  Commerce,  p.  689. 
See,  also,  ante,  "Gambling;    Option  and  Margin  Contracts,  etc.,"  VI,  E,  1. 

aa.  Boards  of  Trade  and  Stock  E.x'changes. — A  board  of  trade  in  the  manage- 
ment of  its  afifairs  has  such  close  and  constant  relations  to  the  general  public 
that  the  conduct  of  its  business  may  be  regulated  by  such  means,  not  arbitrary 
or  unreasonable  in  their  nature,  as  may  be  found  by  the  state  necessary  or 
needful  to  protect  the  people  against  their  unfair  practices  that  may  likely 
occur  from  time  to  time.  Such  regulations  do  not,  in  any  true  sense,  interfere 
with  that  "liberty  of  contract"  which  the  individual  members  of  the  board  of 
trade  are  undoubtedly  entitled,  under  the  constitution,  to  enjoy,  without  un- 
necessary interference  from  government ;  for  the  liberty  of  contract  which  that 
instrument  protects  against  invasion  by  the  state  is  subject  to  such  regulations, 
of  the  character  just  stated,  as  the  state  may  establish  for  the  protection  of 
the  public  and  the  promotion  of  the  general  welfare.  If  such  state  regulations 
are  not  unreasonable,  that  is,  not  simply  arbitrary  nor  beyond  the  necessities 
of  the  case,  they  are  not  forbidden  by  the  constitution  of  the  United  States. S'"' 

538-89a.    Gift  enterprises. — In   re   Greg-  deposit    and    holding    them    until    the    in- 

ory,  219  U.  S.  210,  55  L.  Ed.  184,  31  S.  Ct.  dividual    deposits    reach    an    amount   suffi- 

143.  cient    to    be    transmitted    to    other    states 

Liberty    and    property    are     not      taken  and  to  foreign  countries,  is  engaged  in  in- 

without   due   process   of  law,   contrary  to  terstate   and  foreign   commerce,  see  ante, 

U.  S.  Const.,  fifth  amendment,  by  the  pro-  BANKS    AND    BANKING,    p.    184;    IN- 

yisions   of  D.   C.   Rev.   Stat.,  §  1177,  mak-  TERSTATE     AND     FOREIGN     COM- 

ing   it  a  crime   to   engage   in   any   manner  MERGE,  p.  689. 

in  any  gift  enterprise  business  in  the  dis-  538-89c.    Boards  of  trade  and  stock  ex- 

irict.     In  re  Gregory.  219  U.  S.  210,  55  L.  changes.— House  v.  Mayes,  219  U.  S.  270, 

Ed.  184,  31  S.  Ct.  143.  55    L.    Ed.    213,    31    S.    Ct.     234,      affirmiuj 


538-89b.   Banks  and  banking. — Engel   v. 


judgment    (1910),   127   S.   W.   305,   227    Mo. 


O'Malley.'  219  U.  S.  128,  55  L.  Ed.  128,  31  ^^^-     ^^e    generally,   ante,   BROKERS,  p. 

S.   Ct.   191;    Noble   State   Bank  v.   Haskell,  ^12       And    see    ante.      Gambling— Option 

219    U     S     104     55    L     Ed     ll''     31    S     Ct  ^        ixlargin   Contracts,  etc..     VI,   E,  1. 

186;    Shallenberger    v.    First    State    Bank!  Making   criminal   any   deduction   by   the 

219  U.  S.  114,  55  L.  Ed.  117,  31  S.  Ct.  189;  Purchaser    from    the     actual      weight      of 

Assaria   State    Bank  v.   DoUey,   219  U.   S.  S^ain.    seed,   hay.    or   coal,   under   a   claim 

121,    55    L.    Ed.    123,    31    S.    Ct.    189.      See,  °5  "-J^  ^l  reason  of  any  custom  or  rule 

generally,    ante,    BANKS    AND    BANK-  ?^   ^   ^^^''l  °^,  ^^'f^^,^'   'L^""^  J/. r^"?* 

ING,  p.  184;  CONSTITUTIONAL  LAW,  J""^.^;  ^^^^  ^'^""^K  ^J,°-  ^T'  P"  ^^^^'  '! 

9g^  a    valid    exercise    of   the    police    power    of 

7  ,  f    ,  .  ,        r  ^^1^   state  and  does   not  interfere  with   the 

As  to  the  poxyer  of  the  state  with  refer-  \\],^rty  of  contract  nor  take  property  with- 

^"5xtJo    A^^^'n^^^'fir/A?^^'^^'     ^^^     ^"*^'  ^'"t  due  process  of  law.    House  v.  Mayes, 

BANKS  AND  BANKING,  p.  184.  .,^^  u.  S.  270.  55  L.  Ed.  213,  31  S.  Ct.  234, 

As  to  whether  a  banker,  whose  business  affirming  judgment   (1910),  127  S.  W.  305, 

consists  chiefly  in  receiving  small  sums  on  227    Mo.    617. 

984 


Vol.  IX.  POLICE  POWER.  538 

bb.  Sale  of  Patented  Articles,  Patent  Rights,  etc. — See  ante,  Constitutional 
Law,  p.  264;   Patents,  p.  936. 

cc.  Pool  Rooms. — That  the  keeping  of  a  bilHard  hall  has  a  harmful  tendency 
is  a  fact  requiring  no  proof,  and  incapable  of  being  controverted  by  testimony 
that  the  business  in  a  particular  instance  is  lawfully  conducted,  free  from 
gaming  or  anything  which  could  affect  the  morality  of  the  community  or  of  its 
patrons.  The  fact  that  there  has  been  no  disorder  or  open  violation  of  the 
law  does  not  prevent  the  municipal  authorities  from  taking  legislative  notice 
of  the  idleness  and  other  evils  which  result  from  the  maintenance  of  a  resort 
where  it  is  the  business  of  one  to  stimulate  others  to  play  beyond  what  is  proper 
for  legitimate  recreation.  Such  ordinances  are  not  aimed  at  the  game,  but  at 
the  place ;  and  where,  in  the  exercise  of  the  police  power,  the  municipal  au- 
thorities determine  that  the  keeping  of  such  resorts  should  be  prohibited,  the 
courts  can  not  go  behind  their  finding  and  inquire  into  local  conditions ;  or 
whether  the  defendant's  hall  was  an  orderly  establishment,  or  had  been  conducted 
in  such  manner  as  to  produce  the  evils  sought  to  be  prevented  by  the  ordinance. ^■•'^ 

Abolishing  Existing  Pool  Room. — The  proprietor  of  an  existing  billiard 
and  pool  room  is  not  deprived  of  his  property  without  due  process  of  law, 
contrary  to  U.  S.  Const..  14th  Amend.,  by  the  passage  of  a  municipal  ordi- 
nance prohibiting  the  keeping  of  billiard  or  pool  tables  for  hire  or  public  use.^''^ 

Equal  Protection  of  the  Laws. — A  municipal  ordinance  prohibiting  the 
keeping  of  billiard  or  pool  tables  for  hire  or  public  use  does  not  deny  the  equal 
protection  of  the  law^s,  because  hotel  keepers  are  permitted  to  maintain  a  bil- 
liard or  pool   room  in  which  their   regular  and   registered  guests  may  play.^^^ 

dd.  Advertising. — See  ante,  "Advertising  in  or  on  Public  Conveyances ;  in 
Streets,  Highways,  and  other  Public  Places,"  VI,  K,  4,  cj4>  and  references 
there  given. 

ee.  Drnmming  and  Soliciting  on  Raikvay  Trains,  in  or  about  Stations,  Rail- 
way Premises,  etc. — The  legislature  clearly  has  the  power  to  make  regulations 
for  the  convenience  and  comfort  of  travelers  on  railroads,  and  a  statute  which 
singles  out  hotels,  lodging  houses,  eating  houses,  bath  houses,  physicians,  mas- 
seurs, surgeons,  and  other  medical  practitioners,  and  prohibits  them  and  their 
representatives  from  drumming  and  soliciting  business  or  patronage  upon  rail- 
way trains  and  premises  of  common  carriers,  is  a  reasonable  regulation  for 
the  benefit  of  travelers,  and  is  not  unconstitutional  as  being  opposed  to  the 
due  process  or  equal  protection  of  clauses  of  the  fourteenth  amendment. ^^° 

ff.  Manufacture  and  Sale  of  Paints. — The  protection  of  the  public  against 
the  sale  of  inferior  and  adulterated  paints  is  a  matter  clearly  within  the  police 
power  of  the  state,  and  as  one  of  the  means  to  that  end  the  legislature  may  re- 
quire that  the  packages  in  which  paints  are  sold  shall  bear  labels  showing  their 
composition.'^^'' 

538-89d.    Pool  rooms. — Murphy  v.   Call-  538-89h.       Manufacture      and      sale      of 

fornia,   225   U.   S.   623,   56   L.   Ed.   1229,   32  paints.— Heath,    etc.,    Mfg.    f.    Worst,    207 

S.    Ct.    697.      See,    also,    ante,    "Reguladon  U.   S.  338,  52  L.  Ed.  236,  28  S.  Ct.  114. 

May   Extend   to    Suppression,"   VI,    K,    3,  Manufacturers    and    sellers     of      mixed 

d,   (2).  paints    containing    other    ingredients    than 

538-89e.    Abolishing  existing  pool  room.  pure   linseed   oil.   pure   carbonate   of  lead. 

— Murphy  7\   California,  225  U.  S.  623,  56  oxid  of  zinc,  turpentine.  Japan  dryer,  and 

L.   Ed.   1229,  32   S.   Ct.  697.  pure  colors,  are  not  deprived  of  their    lib- 

538-89f.  Equal  protection  of  the  laws. —  erty  without  due  process  of  law  by  a  state 

Murphy  v.  California,  225  U.  S.  623,  56  L.  statute    which    makes     such     manufacture 

Ed.   1229,   32   S.   Ct.   697.  and   sale   a  misdemeanor  unless   the   label 

538-89g.     Drumming    and    soliciting    on  shows    the    constituent     ingredients      and 

railway  trains,  in  or  about  stations,  rail-  quantity  or  amount  of  each.     Heath,  etc., 

way  premises,  etc.— Williams  v.  Arkansas,  Mfg.   Co.  f.   Worst.  207   U.   S.  338,   52  L. 

217  U.    S.   79,   54   L.   Ed.  673,   30   S.   Ct.   493,  Ed.  236,  28   S.   Ct.  114. 

affirming  108  S.  W.  838.  The  equal  protection  of  the  laws  is  not 

985 


538  POLICE  POWER.  \'o\.  IX. 

gg.  Gas  and  Gas  Companies. — See,  generally,  ante,  Gas,  p.  607.  As  to  regu- 
lation of  gas  rates,  see  post,  "Regulation  of  Rates,"  VI,  L,  et  seq.  As  to  the 
conservation  of  natural  gas  and  the  power  of  the  state  to  prevent  the  piping  of 
the  same  beyond  state  limits,  see  ante.  Interstate  and  Fore;ign  Commerce,  p. 
689.  As  to  the  reasonableness  of  requirements  as  to  pressure  in  gas  mains,  see 
ante,  "Generally,"  VI,  K,  4,  n,  (1). 

Waste  of  Natural  Carbonic  Acid  Gas. — It  is  within  the  police  power  of  the 
state  to  enact  reasonable  regulations  concerning  the  pumping  of  natural  mineral 
waters  for  the  purpose  of  collecting  and  vending  the  natural  carbonic  acid  gas 
with  which  such  waters  are  charged,  to  the  end  that  there  shall  be  no  undue 
waste  of  the  natural  resources  of  the  state  either  to  the  detriment  of  the  state  or 
to  the  interest  of  individual  proprietors  drawing  from  the  common  source  of 
supply. s^' 

Discrimination — Equal  Protection. — Because  the  statute  is  directed  against 
pumping  from  wells  bored  or  drilled  into  the  rock,  but  not  against  pumping 
from  wells  not  penetrating  the  rock,  and  because  it  is  directed  against  pumping 
for  the  purpose  of  collecting  the  gas  and  vending  it  apart  from  the  waters,  but 
not  against  pumping  for  other  purposes,  does  not  make  it  arbitrary  in  its  classi- 
fication, and  consequently  a  denial  of  the  equal  protection  of  the  laws  to  those 
whom  it  affects. ^''^ 

hh.  Oil  and  Other  Illuminating  Fluids. — See,  generally,  ante.  Mines  and 
Minerals,  p.  865. 

Fixing  Standard. — It  is  within  the  legislative  power  to  fix  a  reasonable 
standard  of  safety  for  oils  and  other  illuminating  fluids  offered  for  sale  within 
the  state,  and  to  forbid  the  sale  of  those  fluids  which  do  not  measure  up  to  such 
standard;  and  as  the  subject  is  clearly  within  the  police  power  of  the  state,  it 
is  not  within  the  province  of  the  judiciary  to  disregard  the  statute  and  treat  it 
as  void  upon  the  theory  that  the  legislature  has  acted  unwisely  in  fixing  the 
standard  prescribed  by  the  statute,  even  though  it  is  made  to  appear  that  some 
oils  which  do  not  measure  up  to  the  standard  would  be  perfectly  safe  for  use.^^'' 

denied  to  manufacturers  and  sellers  of  not  penetrating  the  rock,  and  such  pump- 
mixed  paints  containing  other  ingredients  ing  as  is  done  for  other  purposes  than  col- 
than  pure  linseed  oil,  pure  carbonate  of  lecting  and  vending,  as  a  separate  corn- 
lead,  oxid  of  zinc,  turpentine,  Japan  dryer,  modity,  tlie  carbonic  acid  gas  contained 
and  pure  colors,  by  a  state  statute  which  in  mineral  waters,  from  the  operation  of 
makes  the  manufacture  and  sale  of  such  the  provisions  of  Laws  N.  Y.  1908,  c.  429, 
paints  a  misdemeanor  unless  the  label  prohibiting  the  pumping  or  artificially 
shows  the  constituent  ingredients  and  the  drawing  of  unnatural  quantities  of  mineral 
quantity  or  amount  of  each,  because  the  waters  from  a  common  underground 
manufacture  and  sale  of  mixed  paints  con-  source  of  supply,  and  wasting  them  to 
taining  only  the  ingredients  specified  in  the  injury  and  impairment  of  other  pro- 
the  statute,  and,  possibly,  of  all  paste  prietors.  Lindsley  v.  Natural  Carbonic 
paints,  are  free  from  such  consequence  or  Gas  Co.,  220  U.  S.  61,  55  L.  Ed.  369,  31  S. 
condition.  Heath,  etc.,  Mfg.  Co.  v.  Worst,  Ct.  337.  affirming  decree  (C.  C.  1909)  170 
207  U.  S.  338,  52  L.  Ed.  236,  28  S.  Ct.  114.  F.  1023. 

538-89i.  Waste  of  natural  carbonic  acid  538-89k.    Oil  and  other  illuminating  fluids 

gas. — Lindsley    v.    Natural    Carbonic    Gas  — Fixing     standards. — ^Waters-Pierce     Oil 

Co.,  220  U.  S.  61,  55   L.  Ed.  369,  31  S.  Ct.  Co.   v.   Deselms,   212   U.   S.   159,    53   L.   Ed. 

337,    affirming    170    Fed.    1023.      See,    also,  453,  29  S.  Ct.  270. 

ante,  DUE  PROCESS  OF  LAW,  p.  475.  As  to  whether   such  a  regulation  is  an 

538-89J.    Discrimination — Equal    protec-  interference  with  interstate  commerce,  see 

tion.— Lindsley   v.    Natural    Carbonic    Gas  ante,     INTERSTATE    AND     FOREIGN 

Co.,  220  U.   S.  61,  55   L.   Ed.  369,  31  S.  Ct.  COMMERCE,  p.  68? 

337.  The    exclusion    from    the    territory    by 

The    substantial    difference    in    point    of  Okla.  Laws,  1899.  p.  186,  §  2,  of  illuminat- 

harmful  result,  which,  so  far  as  the  case  as  ing    fluids    which  have    a  specific    gravity 

made  shows,  may  exist,  affords  a  reason-  above    46    degrees    Baume,    is    within    the 

able   basis,   under   the   equal  protection   of  police    power    of    the    territory,    although 

the  laws  clause  of  the  federal  constitution,  some  oils  may  thus  be  excluded  which  are 

for  the  exemption  of  pumping  from  wells  as  safe  for  use  as  those  which  comply  with 

986 


Vol.  IX. 


POLICE  POWER 


538-539 


ii.  Powder  and  Other  Explosives. — Powder  is  an  explosive,  dangerous  to  han- 
dle, the  degree  of  danger  corresponding  to  its  quality.  It  is  subject,  therefore, 
to  a  measure  of  regulation  from  which  harmless  articles'  of  commerce  may  be 
exempt  ^^^ 

jj.  Waters,  Water  Companies,  and  Waterzvorks. — See,  generally,  ante,  DuE 
Process  of  Law,  p.  475;  Interstate  and  Foreign  Commerce,  p.  689;  Nav- 
igable Waters,  p.  914;  post,  Water  Companies  and  Waterworks;  Waters 
and  Watercourses.  As  to  the  jurisdiction,  sovereignty  and  eminent  domain 
of  the  state  over  waters  within  its  territorial  limits,  see  ante,  Constitutional, 
Law,  p.  264 :    Interstate  and  Foreign  Commerce,  p.  689. 

L.  Regulation  of  Rates. — As  to  regulation  by  congress  and  interstate 
commerce  commission,  see  ante.  Interstate  and  Foreign  Commerce,  p.  689. 

1.  Powder  to  Regulate — a.  In  General. — Inherent  in  Every  Sovereignty. 
— See  note  92. 

Continuing  in  Its  Nature — Can  Not  Be  Bargained  Away. — See  note  93, 


the  statutory  standard.  Waters-Pierce 
Oil  Co.  T.  Deselms,  212  U.  S.  159,  53  L.  Ed. 
453,  29  S.  Ct.  270. 

"Relying  upon  testimony  which  was  of- 
fered tending  to  show  that  from  some  lo- 
calities oils  which  are  perfectly  safe  are 
obtained,  although  they  have  a  specific 
gravity  somewhat  above  46  Baume,  it  is 
insisted  that  the  law  in  question  was  not 
a  legitimate  exercise  of  the  police  power, 
since  by  selecting  46  degrees  Baume  as 
the  standard,  oils  are  excluded  which 
would  be  as  safe  for  use  as  oil  complying 
with  the  standard  fixed  by  the  statute. 
But  we  think  the  court  below  was  clearly 
right  in  deciding  that,  as  the  subject  was 
within  the  police  power  of  the  state,  it  was 
not  within  the  province  of  the  judiciary 
to  disregard  the  statute  and  treat  it  as 
void  upon  the  theory  that  the  legislature 
had  acted  unwisely  in  fixing  the  standard 
which  the  statute  prescribed."  Waters- 
Pierce  Oil  Co.  V.  Deselms,  212  U.  S.  159, 
173,  53  L.  Ed.  453,  29  S.  Ct.  270. 

538-891.  Powder  and  other  explosives. — 
Williams  v.  Walsh,  222  U.  S.  415,  56  L.  Ed. 
253,  32  S.  Ct.  137. 

Regulating  size  and  character  of  pack- 
age.— A  statute  of  Kansas  (Laws,  1907,  c. 
250),  which  provides  that:  "It  shall  be 
unlawful  for  any  individual,  firm  or  cor- 
poration to  sell,  offer  for  sale  or  deliver 
for  use  at  any  coal  mine  or  mines  in  the 
state  of  Kansas,  black  powder  in  any  man- 
ner except  in  original  packages  containing 
twelve  and  one-half  pounds  of  powder, 
said  package  to  be  securely  sealed;  said 
powder  to  be  delivered  bj'  the  company 
to  the  miner  at  its  powder  house,  not  more 
than  three  hundred  feet  from  pit-head,  un- 
less hereafter  otherwise  provided  by  con- 
tract; provided,  however,  this  act  shall  not 
be  construed  as  in  any  manner  conflicting 
with  any  existing  contract  of  sale  of  black 
powder,"  was*  a  valid  exercise  of  the  po- 
lice power  of  the  state  to  regulate  the 
handling  of  explosives,  especially  in  min- 
ing  operations,    and   was    not   unconstitu- 


tional as  a  regulation  of  commerce  nor  as 
violating  the  due  process  or  equal  protec- 
tion clauses  of  the  fourteenth  amendment. 
Williams  v.  Walsh,  222  U.  S.  415,  418,  56 
L.  Ed.  253,  32  S.  Ct.  137. 

The  exception  in  favor  of  existing  con- 
tracts, contained  in  Laws  Kan.  1907,  c.  250, 
making  it  criminal  to  sell  or  deliver  black 
powder  for  use  in  any  coal  mines  in  the 
state  except  in  original  sealed  packages 
containing  12^  pounds  of  powder,  does 
not  make  such  statute  repugnant  to  Const. 
U.  S.  amend,  fourteen,  as  denying  the 
rqual  protection  of  the  laws.  (1912), 
Williams  v.  Walsh,  222  U.  S.  415,  56  L.  Ed. 
•?53,  32  S.  Ct.  137,  affirming  order  (1908) 
Ex  parte  Williams,  98  P.  777,  79  Kan.  212. 

538-92.  Under  the  powers  inherent  in 
every  sovereignty. — Home  Tel.,  etc..  Co. 
r.  Los  Angeles,  211  U.  S.  265,  271,  53  L. 
Ed.  176,  29  S.  Ct.  50. 

539-93.  Power  to  regulate  can  not  be 
bargained  away. — Home  Tel.,  etc.,  Co.  f. 
Los  Angeles,  211  U.  S.  265,  271,  53  L.  Ed. 
176,  29  S.  Ct.  50.  See,  also,  as  to  charter 
and  contract  rights  suspending  the  power 
of  the  state  or  municipality  to  regulate 
rates,  ante,  IMPAIR^IENT  OE  OBLI- 
GATION OF   CONTRACTS,  p.  624. 

Power  of  municipality  to  bargain  or 
surrender  right. — A  charter  power  of  a 
municipal  corporation  to  fix  and  determine 
''barges  of  telephones  and  telephone  serv- 
'ce  and  connections,  is  an  ample  authority 
for  exercising  the  governmental  power  to 
regulate  such  charges,  but  it  is  not  an  au- 
thority to  enter  into  a  contract  to  abandon 
the  governmental  power  itself:  in  other 
words  it  is  an  authority  to  prescrilie  rates, 
l)Ut  not  an  authority  to  enter  into  a  con- 
tract or  agreement  as  to  rates,  and  a  con- 
tract binding  the  city  to  certain  rates  for 
the  entire  period  of  the  franchise  of  the 
telephone  company  can  not  be  sustained 
upon  the  authority  of  such  a  provision. 
Home  Tel.,  etc.,  Co.  v.  Los  Angeles,  211 
U.  S.  265,  280,  53  L.  Ed.  176,  29  S.  Ct.  50. 


987 


539 


POLICE  POWER. 


Vol.  IX. 


Limitations  of  Power — Confiscation — Right  to  Compensation — Gen- 
erally.— See  note  94.  . 

Compelling  Performance  of  Some  Service  at  a  Loss. — See  ante,  "Gen- 
erally," VI,  K,  4,  n,  (1). 

Same — biscriminating  between  Certain  Classes  of  Patrons  or  Con- 
sumers.— Where  neither  individual  consumers  nor  the  city  are  complaining 
of  the  provision  of  a  statute  which  prescribes  one  rate  for  individual  consum- 
ers of  gas  and  another  for  the  city,  the  only  interest  which  the  gas  company 
has  in  the  question  is  to  find  out  vv'hether,  upon  the  whole,  it  is  able  to  realize 
a  sufficient  return  to  comply  with  what  it  has  a  right  to  demand.  So  long  as 
the  total  profits  from  the  gas  supplied  to  all  consumers  is  sufficient  to  insure 
the  requisite  return  upon  the  investment,  it  is  not  important  that,  with  relation 
to  some  customers,  the  price  is  not  enough. ^^^ 

Limits  under  Reserved  Power. — A  general  power  reserved  to  regulate 
rates  is  limited  only  by  the  fourteenth  amendment.^'*^ 

b.  Power  to  Prescribe  Rates  a  Legislatk^e  Function. — See  note  95. 

c.  Delegation  of  Pozver. — To  Commissions,  etc. — See  ante,  "Power  to 
Prescribe  Rates  a  Legislative  Function,"  VI,  L,   1,  b. 


539-94.  Limitations  of  power — Confisca- 
tion— Right    to    compensation — Generally. 

— Home  Tel.,  etc.,  Co.  v.  Los  Angeles,  211 
U.  S.  265,  271,  53  L.  Ed.  176,  29  S.  Ct.  5(3. 

Legislative  regulation  of  gas  rates  is  in- 
valid, where  such  rates  are  plainly  unrea- 
sonable to  the  extent  that  their  enforce- 
ment will  be  equivalent  to  the  taking  of 
property  for  public  use  without  such  com- 
pensation as,  under  the  circumstances,  is 
just,  both  to  the  owner  and  the  public. 
There  must  be  a  fair  return  upon  the  rea- 
sonable value  of  the  property  at  the  time 
it  is  being  used  for  the  public.  Willcox  v. 
Consolidated  Gas  Co.,  212  U.  S.  19,  53  L. 
Ed.  382,  29  S.  Ct.  192. 

539-94a.  Discriminating  between  certain 
classes  of  patrons  or  consumers — Rates 
too  low  as  to  some. — Willcox  v.  Consoli- 
dated Gas  Co.,  212  U.  S.  19,  53  L.  Ed.  382, 
29  S.  Ct.  192. 

In  determining  -the  reasonableness  of 
Laws  N.  Y.  1905,  p.  2091,  c.  736.  and  Laws 
1906,  p.  235,  c.  125,  fixing  gas  rates  in  New 
York  city,  a  discrimination  between  indi- 
vidual consumers  and  the  city  is  not  ma- 
terial to  the  inquiry,  if  the  total  profits 
from  the  gas  supplied  to  all  consumers  is 
sufficient  to  insure  the  requisite  return 
upon  the  property  used  by  the  gas  com- 
pany in  its  business.  Decree  (C.  C.  1907) 
Consolidated  Gas  Co.  v.  City  of  New 
York,  157  F.  849,  reversed.  Willcox  v. 
Consolidated  Gas  Co..  232  U.  S.  19,  53  L. 
Ed.  382,  29  S.   Ct.  192. 

539-94b.  Limits  under  reserved  power. — 
Cedar  Rapids  Gas  Light  Co.  v.  Cedar 
Rapids,  223  U.  S.  655,  56  L.  Ed.  594,  32  S. 
Ct.  389. 

Half  fares  for  school  children. — See 
post,  "Street  Railways,"  VL  L,  1,  d,  (4). 

539-95.  Power  to  prescribe  rates  a  leg- 
islative function. — The  function  of  rate 
making  is  purely  legislative  in  its  charac- 


ter, and  this  is  true,  whether  it  is  exercised 
directly  by  the  legislature  itself  or  by  some 
subordinate  or  administrative  body,  to 
whom  the  power  of  fixing  rates  in  detail 
has  been  delegated.  The  completed  act 
derives  its  authority  from  the  legislature 
and  invist  be  regarded  as  an  exercise  of 
the  legislative  power.  Knoxville  v.  Knox- 
ville  Water  Co.,  212  U.  S.  1,  53  L.  Ed.  373, 
29  S.  Ct.  148;  Prentis  v.  Atlantic  Coast 
Line  Co.,  211  U.  S.  210,  53  L.  Ed.  150,  29 
S.  Ct.  67;  Honolulu,  etc.,  Land  Co.  v. 
Hawaii,  211  U.  S.  282,  53  L.  Ed.  186,  29  S. 
Ct.  55;  Home  Tel.,  etc.,  Co.  v.  Los  An- 
geles, 211  U.  S.  265,  271,  53  L.  Ed.  176,  29 
S.  Ct.  50.  See,  also,  ante,  DUE  PROC- 
ESS OF  LAW,  p.  475. 

The  enforcement  of  the  continuance  by 
a  H.nwaiian  street  railway  company  ot  a 
10-minute  schedule  on  certain  of  its  lines, 
upon  the  ground  that  the  public  conven- 
ience demands  such  a  schedule,  is  not 
within  the  limits  of  the  judicial  power,  and 
is  totally  inconsistent  with  the  power  to 
regulate  the  management  of  the  street 
railway  in  this  respect,  which  is  untimately 
vested  by  Haw.  Rev.  Laws,  §  843  (Sess. 
Laws  1905,  Act  No.  78),  in  the  executive 
authorities.  Honolulu,  etc..  Land  Co.  v. 
Hawaii,  211  U.  S.  282,  53  L.  Ed.  186,  29  S. 
Ct.  55. 

The  power  to  regulate  rates  and  sched- 
ules is  a  legislative  function,  and  it  is  an 
unwarranted  assumption  of  legislative 
powers  for  a  court,  not  invested  with  any 
special  statutory  authority,  nor  having  the 
property  in  its  control  by  receivership, 
to  undertake,  solely  by  virtue  of  its  gen- 
eral judicial  powers,  to  control  to  such  an 
extent  and  in  such  detail  the  business  of 
a  transportation  corporation.  A  fortiori 
is  this  true  where  the  legislature  has  dele- 
gated this  power  to  an  administrative 
iaody.  Honolulu,  etc.,  Land  Co.  v.  Hawaii, 
211  U.  S.  282,  53  L.  Ed.  186,  29  S.  Ct.  55. 


9S8 


Vol.  IX.  POLICE  POWER.  539-541 

To  Municipal  Corporations. — See  note  97. 

d.  Exercise  of  the  Power  zcitli  Respect  to  Particular  Corporations — (1)  Rail- 
roads and  Other  Public  Service  Companies. — See,  generally,  ante,  Carriers,  p. 
216;    post,  Railroads. 

(2)  Stockyards. — As  to  the  regulation  of  stockyard  and  terminal  charges, 
see  ante,  Interstate  and  Foreign  Commerce,  pp.  689,  761. 

(3)  Grain  Elevators. — See  ante.  Interstate  and  Foreign  Commerce,  p. 
689. 

(4)  Street  Raihvays. — See,  generally,  post.   Street   Railways. 

Half  Fares  for  Children. — A  street  railway  company  whose  charter  subjects 
it  to  "all  the  duties,  liabilities,  and  restrictions  set  forth  in  all  general  laws  now 
or  hereafter  in  force,  relating  to  street  railway  companies,"  is  bound  by  the 
requirement  of  a  statute  previously  enacted,  that  street  railway  companies  shall 
transport  school  children  at  a  reduced  rate,  although  such  statute  may  be  un- 
constitutional as  to  already  existing  corporations.^'' 

(5)  Telegraphs  and   Telephones. — See  post,  Telegraphs  and  Telephones. 

(6)  Water   Companies. — See   post,   Water   Companies   and   Waterworks. 

(7)  Turnpikes  and  Tollroads. — Suspending  the  collection  of  tolls  by  a  turn- 
pike company,  conformably  to  a  state  statute,  which  was  in  force  long  before 
the  road  was  constructed  or  acquired  by  the  plaintififs,  until  the  roads  shall  be 
put  in  proper  repair,  does  not  take  property  without  due  process  of  law,  con- 
trary to  U.  S.  Const.,  14th  Amendment,  because  the  travel  does  not  yield  a 
sufficient  revenue  to  keep  the  roads  in  good  order. ^'' 

V/i.  Right  oe  Interested  Parties  to  Notice  and  Hearing — a.  Before 
Establishment  of  Rate. — See  ante,  Due  Process  of  Law,  p.  475. 

b.  After  Establishment  of  Rate. — See,  generally,  post,  "Right  of  Courts  to 
Interfere,"  VI,  L,  2,  a.  See,  also,  ante,  DuE  Process  of  Law,  p.  475. 
As  to  whether  the  legislature  can,  by  providing  for  a  notice  and  hearing  to  in- 
terested parties  previous  to  the  adoption  of  a  rate,  render  the  statute  or  order 
res  ad  judicata  and  preclude  the  right  to  afterwards  resort  to  the  courts  to  test 

539-97.  Delegation  of  power  to  munici- '  See.   also.   post.   TURX  PIKES    AND 

palities.— Home  Tel.,  etc.,  Co.  v.  Los  An-  TOLLROADS. 

seles,  211  U.  S.  2(55,  271,  53  L.  Ed.  176,  29  The  statute  in  this  case  had  l)een  a  law 

S.  Ct.  50.  of  Virginia,  with  little  change,  since  Feb- 

541-4a.     Half  fares  for  children.— Inter-  ruary  7,  1817,  and  the  motions  below  did 

state,  etc.,  St.  R.  Co.  v.  Massachusetts,  207  "ot   amount  to  a  clami  against  the  rates 

U.  S.  79,  52  L  Ed.  Ill,  28  S.  Ct.  26.  Per    se,    but    simply    asserted    that  as    the 

ATass     Rev     Taws     rhan    112     8    72     re-  travel  on  the  turnpikes  was  not  sufficient 

Mass  Kev.  i.aws,  chap.  112,  §  ^2,  re  ^^  ^^^^^  ^j  j^.  j^ti^,,  ^o  be  profitable, 
quired  the  railway  company  o  transport  ^j^^^  j^  ^^  ^J  ^^^^^^^  ^  sufficient  rev- 
children   to   and   from   the   public   schools  ^^^^    ^^    ^^^>^,^    ^,1;^    ^^^^j^    ^^  ,^^    ^  .^ 

for  hall  tare.     As  education  is  one  ot  the  j        j        ^i        r         ^u        i  r      ,.•        •  „ 

r  u-  u  ^u  1-  good   order,   theretore    tne    obligation   im- 

purposes  for  which  the  police  power  may  ^        i    t       ^i         ^  ^   ,.  ^        i..  ,^.,,.;i 

t     ^        -jiU-ijj  4.  li  posed  bv  the   statute   and  voluntarily  as- 

be  exercised,  this  l)urden  does  not  exceed  i^,,.^„j     '.     i  ,.    „   ,.    ^„    u^    ^„(^..^^a       ti,^ 

■  ^     ,.     -i      •        •  r  ,-1  J-,.-  u-  1  sumed    ought    not    to    be    entorceu.      ine 

its  limits,  in  view  of  the   condition  which  .    .'^         .      r   ^.t  •  ■^^^..     ^^-./t 

^,      A/r  1         <-<-  ^11-        1  i  ■  i.  mere    statement   of   this   proposition,    said 

the   Massachusetts  court  believed  to  exist  .,  ^ ^,  ^      ^a-^.  „.  ,^  f^  ^,V^ki;.i,  .Vo  ^^ 

^,  T   ^       ,.  ^        i       o^    -o    r<  -Mt  the  court,  was  sufficient  to  establish  its  en- 

saclnisett"    207  U    179    5o  L    Ed    llf 'og  ^ire    want    of  merit:    that  to    suspend    the 

S    pf   or  taking  of  tolls  while  the   roads  were  out 

b.  L-t.  ^b.  ^^   repair  was    not  a    taking    of    property, 

The    majority    of    the    court    considered  i^^t  ^^s  simply  a  method  provided  by  stat- 

that  this  case  was  disposed  of  by  the  fact  ute  to  enforce  the  discharge  of  the  public 

that   the   statute   in   question  was   in   force  ^I^ty   respecting   the    safe    and    convenient 

when  the  plaintiff  in  error  took  its  charter,  maintenance     of    a    public     highway.      In 

and     the    court    confined    itself     to     that  other  words,  as  observed  by  the  attorney 

ground.     Interstate,  etc.,  St.  R.  Co.  v.  Mas-  g-eneral   for   the   commonwealth,   the   bur- 

sachusetts,  207  U.  S.  79,  52  L.  Ed.  Ill,  28  ^^^  of  keeping  the  turnpikes  in  repair  was 

S.  Ct.  26.  made   a   condition   precedent   to   the   right 

541-4b.   Turnpikes   and   tollroads.— Nor-  to    collect    tolls.      Norfolk,   etc..   Turnpike 

folk,      etc..      Turnpike      Co.      :'.      Virginia,  Co.    v.    Virginia,    225  U.  S.    264,  56  L.    Ed. 

225  U.  S.  264,  56  L.  Ed.  1082,  .32  S.  Ct.  S28.  1082,  32  S.  Ct.  828. 

9S9 


542  POLICE  POWER.  Vol.  IX. 

its  reasonableness,  see  ante,  Constitutional  Law,  p.  264;  Due;  Process  of 
Law,  p.  475.  As  to  the  validity  of  a  statute  which  imposes  penalties  so  severe 
as  to  deter  parties  from  resorting  to  the  courts  to  test  the  reasonableness  of  its 
provisions  and  vindicate  their  rights,  see  ante,  Constitutional  Law,  p.  264; 
Due  Process  of  Law,  p.  475. 

1>4.  Remedy  against  Unjust  Rates. — See  ante,  Due  Process  oe  Law,  p. 
475.     See,  also,  post,  ''Right  of  Courts  to  Interfere,"  VI,  L,  2,  a. 

2.  Reasonableness  of  Rates — a.  Right  of  Courts  to  Interfere. — In  Gen- 
eral— Conclusiveness   of  Legislative   Determination, — See  note  6. 

Duty  to  Exhaust  Remedies  in  State  Courts. — Where,  under  the  state 
law,  the  parties  in  interest  are  given  notice  and  opportunity  to  be  heard  before 
a  railroad  or  corporation  commission  in  a  proceeding  to  fix  rates,  and  are  given 
an  appeal,  as  a  matter  of  right,  from  the  order  of  the  commission  prescribing 
the  rates,  to  a  state  court  of  last  resort,  the  plaintiffs,  before  filing  a  bill  to  en- 
join the  enforcement  of  the  rates,  should  first  exercise  their  right  of  appeal  to 
the  state  court  of  last  resort,  and  thus  make  sure  that  the  state,  in  its  final  ac- 
tion through  that  body  or  tribunal  having  the  last  word  upon  the  subject,  will 
not  respect  what  the  plaintiffs  consider  their  rights  to  be.  If  they  should  be 
met  by  an  adverse  decision  in  the  state  court  of  last  resort,  they  will  then  be  at 
liberty  to  make  their  application  to  the  federal  courts  without  fear  of  being 
met  by  plea  of  res  judicata.*'** 

Same — Effect  of  Existence  of  Alleged  Contract  Right. — The  duty  of  a 
plaintiff  corporation  to  first  exercise  its  right  of  appeal  to  the  state  court  of  last 
resort  before  filing  a  bill  in  the  federal  court  to  enjoin  the  enforcement  of  the 
order  prescribing  rates  is  not  affected  by  the  fact  that  the  plaintiiT  has,  or  claims 
to  have,  a  contract  right  against  the  alleged  reduction  of  the  rates.  On  the 
question  of  contract,  as  on  that  of  confiscation,  it  is  reasonable  and  proper  that 
the  case  should  be  laid,  in  the  first  instance,  before  the  state  body  having  the 
last  word  upon  the  subject.*"' 

Dismissal  without  Prejudice  Where  Plaintiff  Mistakes  Its  Remedy.— 
\\'here  a  public  service  corporation  mistakes  its  remedy  and  files  its  bill  for 
injunction  in  the  federal  court  without  first  exercising  its  right  of  appeal  to  the 
state  court  of  last  resort,  and,  while  the  proceedings  on  such  bill  are  pending, 
the  time  within  which  the  appeal  to  the  state  court  of  last  resort  might  have 
been  taken  goes  by,  the  federal  supreme  court  will  retain  the  bill  to  see  whether 
the  state  court  will,  if  an  appeal  be  taken,  declare  the  same  to  be  too  late.  If 
such  appeal  to  the  state  court  of  last  resort  is  declared  to  be  too  late,  the  su- 
preme court  of  the  United  States  will  then  render  a  decree  upon  the  bill.  On 
the  other  hand,  if  the  state  court  entertayis  the  appeal,  the  bill-  in  the  federal 
court   will  be   dismissed  without  prejudice  to  the   right  to  file   it  again   in   the 

542-6.     Conclusiveness  of  legislative  de-  212    U.  S.  1,    53  L.  Ed.    371.  29  S.  Ct.    148. 

termination.— The     courts    of     the    states.  See.  also,  ante,  DUE  PROCESS  OF  LAW, 

and    certainly  the    courts    of    the    United  p.  47.5. 

States,    are    open  to    those  who    complain  Power  of  legislature  to  make  statute  or 

that  their  property  has  been  confiscated  l)y  order  res  adjudicata  by  giving  notice  and 

an  act  of  regulation  of  this  kind,  and  the  hearing  before  adoption  of  rate. — See  iuitc, 

latter  courts  will,  under  all  circumstances,  CONSTITUTIONAL  LAW,  p.  264;  LHJE 

determine    for    themselves     whether    such  PROCESS  OF  LAW,  p.  475. 

confiscation  exists.     Home  Tel.,  etc.,   Co.  542-6a.    Duty    to    exhaust    remedies    in 

V.    Los  Angeles,    211  U.  S.    265,    278,  53    L.  state    courts. — Prentis    v.     Atlantic    Coast 

Ed.  176.  29  S.  Ct.  50.  Line  Co.,  211   U.   S.  210,  53   L.   Ed.   150,  ":'.) 

The  courts  in  clear  cases,  ought  not  to  S.  Ct.  67. 

hestitate  to  arrest  the  operation  of  a  con-  542-6b.  Same — Effect  of  existence  of  al- 

fiscatory    law,    but    they    ought  to    refrain  leged   contract  right. — Prentis  v.   Atlantic 

from    interfering     in    cases    of    any    other  Coast   Line   Co.,  211   U.   S.  210,   53   L.   Ed. 

kind.     Knoxville  v.  Knoxville  Water   C.x,  150,  29  S.  Ct.  67. 

990 


Vol.  IX. 


POLICE  POWER. 


542-543 


event  the  final  decision  of  the  state  court  should  be  adverse  to  the  federal  rights 
set  up.*^'" 

Not  Necessary  to  Await  Prosecution. — It  is  not  necessary  to  wait  until 
the  institution  of  a  prosecution  under  an  alleged  unconstitutional  rate  law  be- 
fore   applying    for   an    injunction   to   restrain   the   enforcement   of   the   same.*''^ 

Suit  against  State, — When  the  rate  is  fixed  by  a  state  railroad  or  a  corpora- 
tion commission  and  affirmed  upon  appeal  to  the  state  court  of  last  resort,  a 
bill  against  the  commission  to  restrain  the  parties  from  enforcing  it  is  not 
bad  as  an  attempt  to  enjoin  legislation  or  as  a  suit  against  the  state,  but  is 
the  proper  form  of  the  remedy.^'' 

Enjoining  Other  Courts. — Proceedings  to  fix  rates  are  legislative  in  their 
nature  and  are  not  proceedings  in  a  court  within  the  meaning  of  Rev.  Stats., 
§  720,  which  section  forbids  federal  courts  to  enjoin  proceedings  in  state 
courts.  And  it  does  not  matter  what  may  be  the  general  or  dominant  character 
of  the  body  in  which  such  proceedings  may  take  place.  The  question  depends 
not  upon  the  character  of  a  body  but  upon  the  character  of  the  proceedings. 
Hence  a  bill  will  lie  in  a  federal  court  against  a  state  corporation  commission 
to  enjoin  it  from  enforcing  rates  which  it  has  prescribed  and  which  are  alleged 
to  be  confiscatory.^'^ 

Presumption  and  Burden  of  Proof  as  to  Reasonableness  of  Rate. — 
In  judging  the  constitutionality  of  legislative  or  administrative  orders  regulat- 
ing rates,  the  presumption  is  in  favor  of  validity,  and  the  burden  is  upon  those 
W'ho  oppose  such  regulations  to  show  their  invalidit}'.  To  invalidate  such 
regulations,  it  is  not  sufficient  to  show  mere  possibility  of  evil  under  the  statute, 
but,  on  the  other  hand,  if  the  validity  of  such  regulations  can  be  sustained 
upon  any  conceivable  state  of  facts,  the  existence  of  those  facts,  in  the  absence 
of  proof  to  the  contrary,  will  be  presumed. ^^ 

Court  to  Enjoin  Rate  Only  Where  Same  Clearly  Unconstitutional. — 
See  note  9. 


542-6C.  Dismissal  without  prejudice 
where    plaintiff    mistakes     its     remedy. — 

Prentis  r.  Atlantic  Coast  Line  Co.,  211  U. 
S.  ^'10.  53  L.   Ed.  150,  29  S.  Ct.  G7. 

542-6d.  Not  necessary  to  await  prosecu- 
tion.— Prentis  v.  Atlantic  Coast  Line  Co., 
211  U.   S.  210.  5.3  L.  Ed.  150,  29  S.  Ct.  67. 

542-6e.  Suit  against  state. — Prentis  v. 
Atlantic  Coast  Line  Co..  211  U.  S.  210,  53 
L.  Ed.  150,  29  S.  Ct.  67.  See,  also,  Ex 
parte  Young,  209  U.  S.  123,  52  L.  Ed.  714, 
28  S.  Ct.  441.  See,  s:enerally,  ante,  DUB 
PROCESS  OF  LAW,  p.  475;  post, 
STATES. 

542-6f.  Enjoining  other  courts. — Prentis 
V.  Atlantic  Coast  Line  Co.,  211  U.  S.  210, 
53  L.  Ed.  150,  29  S.  Ct.  67,  citing  McNeill 
V.  Southern  R.  Co..  202  U.  S.  543,  50  L. 
Ed.  1142;  Ex  parte  Virginia,  100  U.  S.  339. 
349.  25  L.   Ed.  676. 

543-8a.  Presumption  and  burden  of 
proof  as  to  reasonableness  of  rate. — 
Home  Tel.,  etc.,  Co.  v.  Los  Angeles.  211 
U.  S.  265,  281,  53  L.  Ed.  176.  29  S.  Ct.  50. 
See,  also,  ante,  CONSTITUTIONAL 
LAW,  p.  264. 

An  act  of  a  state  legislature,  fixing  rates 
for  either  passenger  or  freight  transporta- 
tion is  to  be  regarded  as  prima  facie  valid, 
and  the  onus  rests  upon  the  carrier  to 
prove    its   assertion    to   the   contrary.      Ex 


parte  Young,  209  U.  S.  123,  52  L.  Ed.  714, 
28  S.  Ct.  441. 

If  a  company  of  this  kind  chooses  to 
decline  to  observe  an  ordinance  of  this 
nature,  and  prefers  rather  to  go  into  court 
with  the  claim  that  the  ordinance  is  un- 
constitutional, it  must  be  prepared  to 
show  to  the  satisfaction  of  the  court  that 
the  ordinance  would  necessarily  be  so  con- 
fiscatory in  its  effect  to  violate  the  con- 
stitution of  the  United  States.  Knoxville 
v.  Knoxville  Water  Co.,  212  U.  S.  '1,  53  L. 
Ed.  371.  29  S.  Ct.  148;  Ex  parte  Young, 
209  U.  S.  123.  52  L.  Ed.  714,  28  S.  Ct.  441. 

543-9.  Court  to  enjoin  rate  only  where 
same  clearly  unconstitutional. — Judicial 
interference  should  never  occur  unless  the 
case  presents,  clearly  and  bej^ond  all 
doubt,  such  a  flagrant  attack  upon  the 
rights  of  property  under  the  guise  of  reg- 
ulations as  to  compel  the  court  to  say  that 
the  rates  prescribed  will  necessarily  have 
the  effect  to  deny  just  compensation  for 
private  property  taken  for  the  public  use. 
Knoxville  v.  Knoxville  Water  Co.,  212  U. 
S.  1,  53  L.  Ed.  371,  29  S.  Ct.  148;  Ex  parte 
Young,  209  U.  S.  123,  52  L.  Ed.  714,  28  S. 
Ct.  441;  San  Diego  Land,  etc.,  Co.  v.  Na- 
tional City,  174  U.  S.  739,  754,  43  L.  Ed. 
1154,  19  S.  Ct.  804. 

The    case    must   be    a    clear   one    before 


091 


543-544 


POLICE  POWER. 


Vol.  IX. 


Rates  to  Be  Given  Fair  Trial  in  Case  of  Doubt. — If  there  is  any  reason- 
able doubt  as  to  the  reasonableness  of  the  rates  a  court  of  equity  ought  not 
to  interfere  by  injunction  with  state  legislation  fixing  the  same  before  a  fair 
trial  has  been  made  of  continuing  the  business  under  such  rates,  especially 
where  the  rates  complained  of  show  a  very  narrow  line  of  division  between 
possible  confiscation  and  proper  regulation,  as  based  upon  the  findings  as  to 
the  value  of  the  property,  and  the  division  depends  upon  variant  opinions  as 
to  value  and  upon  the  results  in  the  future  of  operating  under  such  rates.*^^ 

Same — Dismissal  without  Prejudice. — The  dismissal  of  a  bill  which 
seeks  to  enjoin  the  enforcement  of  legislative  regulation  of  gas  rates  as  con- 
fiscatory in  advance  of  any  actual  experience  of  the  practical  result  of  such 
rates  should  be  without  prejudice,  where  such  practical  experience  may  prove 
that  the  complainant  can  not  obtain  a  fair  return  upon  the  property  used  by 
it  in  its  business.^'' 

Separability  of  Statute  or  Ordinance. — The  invalidity  of  provisions  as 
to  gas  pressure  and  penalties  contained  in  a  statute  regulating  gas  rates,  does 
not  invalidate  the  other  provisions  of  the  act  respecting  rates,  from  which  the 
invalid  provisions  are  clearly  separable.^'^ 

c.  Basis  for  Calculating  Reasonableness  of  Rates — (1)  In  General. — See 
note  16. 


the  courts  should  be  asked  to  interfere  by 
injunction  in  advance  of  any  actual  ex- 
perience of  the  practical  result  of  such 
rates.  Willcox  v.  Consolidated  Gas  Co., 
212  U.  S.  19,  53  L.  Ed.  382,  29  S.  Ct.  192. 

No  injunction  ought  to  be  awarded  by 
a  federal  court  against  the  enforcement  of 
a  state  railroad  rate  law  which  is  alleged 
to  violate  the  federal  constitution,  unless 
the  case  is  reasonably  free  from  doubt. 
Ex  parte  Young.  209  U.  S.  123,  52  L.  Ed. 
714,  28  S.  Ct.  441. 

Legislative  regulation  of  gas  rates  is  in- 
valid only  where  such  rates  are  so  plainly 
unreasonable  that  their  enforcement  will 
be  equivalent  to  the  taking  of  property 
for  public  use  without  such  compensation 
as,  under  the  circumstances,  is  just,  both 
to  tjie  owner  and  the  public.  Decree  (C. 
C.  1907),  Consolidated  Gas  Co.  v.  City  of 
New  York,  157  F.  849,  reversed.  Willcox 
V.  Consolidated  Gas  Co.,  212  U.  S.  19,  53 
L.  Ed.  382,  29  S.  Ct.  192. 

543-9a.  Rates  to  be  given  fair  trial  in 
case  of  doubt. — Willcox  v.  Consolidated 
Gas  Co.,  212  U.  S.  19,  53  L.  Ed.  382,  29  S. 
Ct.  192. 

The  enforcement  of  a  municipal  ordi- 
nance fixing  telephone  rates  should  not 
be  enjoined  as  confiscatory  before  giving 
such  ordinance  a  trial  to  show  its  actual 
effect,  where  the  evidence  leaves  the  prob- 
able result  very  close  to  the  dividing  line 
between  the  yield  of  a  fair  return  and  con- 
fiscation. Louisville  zk  Cumberland  Tel., 
etc.,  Co.,  225  U.  S.  430,  56  L.  Ed.  1151,  32 
S.  Ct.  741. 

543-9b.  Same — Dismissal  without  prej- 
udice.-— Willcox  V.  Consolidated  Gas  Co., 
212  U.  S.  19,  53  L.  Ed.  382.  29  S.  Ct.  192. 
See  in  accord,  as  to  water  company.  Knox- 
ville  V.  Knoxville  Water  Co.,  212  U.  S.  1, 
53  L.  Ed.  371,  29  S.  Ct.  148. 


The  evidence  in  this  case  considered, 
and  held  that  a  judgment  of  a  state  court, 
dismissing  a  bill  to  restrain  the  enforce- 
ment of  an  ordinance  fixing  90  cents  per 
thousand  cubic  feet  as  a  maximum  gas 
rate,  without  prejudice  to  a  later  suit 
after  the  ordinance,  which  had  not  been 
enforced  before  the  commencement  of  the 
suit,  had  been  given  a  fair  test,  the  court 
estimating  on  a  value  fixed  by  it  for  the 
plant  considerably  in  excess  of  its  cost, 
that  the  return  under  the  ordinance  would 
be  over  6  per  cent,  will  not  be  disturbed 
on  review  by  the  supreme  court  of  the 
United  States  on  the  ground  that  the  rates 
fixed  by  the  ordinance  was  confiscatory 
and  a  deprivation  of  the  property  without 
due  process  of  law  in  violation  of  the 
fourteenth  amendment.  Cedar  Rapids 
Gas  Light  Co.  v.  Cedar  Rapids,  223  U.  S. 
655,  56  L.   Ed.  594,  32  S.   Ct.  389. 

543-90.  Separability  of  statute  or  ordi- 
nance.— Willcox  z'.  Consolidated  Gas  Co., 
212  U.   S.   19,  53   L.   Ed.  382,  29  S.  Ct.  192. 

As  to  unreasonable  requirements  as  to 
gas  pressure,  see  ante,  "Generally,"  VL  K, 
4,  n,   (1). 

544-16.  Proper  basis  of  calculation 
stated. — The  rule  by  which  to  determine 
this  question  is  pretty  well  established. 
The  rates  must  be  plainly  unreasonable 
to  the  extent  that  their  enforcement  would 
be  equivalent  to  the  taking  of  property 
for  public  use  without  such  compensation 
as,  under  the  circuinstances,  is  just  both 
to  the  owner  and  the  public.  Willcox  v. 
Consolidated  Gas  Co.,  212  U.  S.  19,  53  L. 
Ed.  382,  29  S.  Ct.  192,  citing  San  Diego 
Land,  etc.,  Co.  v.  National  City,  174  U.  S. 
739,  757,  43  L.  Ed.  1154,  19  S.  Ct.  804;  San 
Diego  Land,  etc.,  Co.  v.  Jasper,  189  U.  S. 
439,  442,  47  L.  Ed.  892,  23  S.  Ct.  571. 


992 


Vol.  IX.  POLICE  POWER.  545 

(1^)  J^ ablation  of  Property. — Tliere  must  be  a  fair  return  upon  the  rea- 
sonable value  of  the  property  at  the  time  it  is  being  used  for  the  public,  and 
the  valuation  of  the  property  of  the  company,  upon  which  it  is  entitled  to  a 
fair  return,  must,  as  a  general  rule,  be  determined  as  of  the  time  when  the 
inquiry  is  made  regarding  the  reasonableness  of  rates  fixed  by  statute,  giving 
the  company  the  benefit  of  any  increase  in  the  value  of  the  property  since  it 
was  acquired. ^^'^ 

(I14)  Good  JJlll. — Xo  allowance  for  the  value  of  the  good  will  should  be 
made  in  estimating  the  value  of  the  property  of  a  gas  company  upon  which 
it  is  entitled  to  earn  a  fair  return,  for  the  purpose  of  testing  the  reasonableness 
of  the  rates  fixed  by  statute,  where  such  company  is  secure  from  possible  com- 
petition.^'^" 

(1/4)  Franchises. — The  valuation  of  the  franchises  of  the  constituent  gas 
companies  as  fixed  by  them  when  organizing  a  consolidated  corporation,  which 
valuation  was  included  in  the  total  sum  of  which  the  consolidated  corporation 
issued  its  stock,  must  be  accepted  by  the  courts  in  testing  the  reasonableness  of 
legislative  regulation  of  gas  rates  as  conclusive  of  such  value  at  the  time  of  con- 
solidation, where  the  validity  of  the  agreement  fixing  the  valuation  has  always 
been  recognized,  and  the  stock  has  earned  large  dividends  and  had  been  largely 
dealt  in  for  many  years  on  the  basis  of  the  validity  of  the  valuation  of  the 
stock. ^^'^ 

Increase  Since  Consolidation. — Increase  since  consolidation  of  the  tangi- 
ble assets  of  a  consolidated  gas  company  and  in  the  amount  of  gas  supplied 
by  it  does  not  justify  the  court,  when  testing  the  reasonableness  of  the  rates 
fixed  by  statute,  in  attributing  a  proportional  increase  to  the  value  of  the  fran- 
chises as  fixed  by  the  constituent  companies  at  the  time  of  consolidation. ^-'^ 

Valuation  of  Franchise  for  Taxation. — The  assessed  value  for  taxation 
of  the  franchises  of  a  gas  company  furnishes  no  criterion  by  which  to  ascertain 
their  value,  when  testing  the  reasonableness  of  gas  rates  fi.xed  by  statute,  where 
the  taxes  are  treated  by  the  company  as  part  of  its  operating  expenses,  to  be 
paid  out  of  its  earnings  before  the  net  amount  applicable  to  dividends  can  be 
ascertained.^®^ 

(l-;4)  Capitalizatioi. — Capitalization  affords  no  guide  to  the  present  value 
of  the  tangible  property  of  a  waterworks  company  which  is  objecting  to  the 
rates  fixed  by  municipal  ordinance  as  confiscatory,  where  substantially  all  the 
common  and  preferred  stock  was  issued  under  construction  contracts  entered 
into  with  persons  who  controlled  the  corporate  action,  and  was  greatly  in  ex- 
cess of  the  true  value  of  the  property  furnished  under  the  contracts. ^^^ 

(2)  Original  Cost. — Depreciation  of  Plant. — Depreciation  represented  by 
the  destruction  or  obsolescence  of  parts  of  the  original  plant  and  by  impair- 
ment in  value  of  those  parts  which  remain  in  existence  and  continue  in  use 
can  not  be  added  to  the  present  value  of  the  surviving  parts  when  determining 
the  value  of  the  tangible  property  of  a  waterworks  company  for  the  purpose 
of  testing  the  reasonableness  of  the  rates  fixed  by  municipal  ordinance. -^^ 

545-18a.  Valuation  of  property — Gener-  545-18e.  Valuation  of  franchise  for  tax- 
ally. — Willcox  :•.  Consolidated  Gas  Co.,  ation. — Willcox  t'.  Consolidated  Gas  Co., 
212  U.   S.   19.   5.3   L.   Ed.  382,  29   S.   Ct.   192.  212  U.   S.   19.  .53   L.   Kd.  382.  29  S.   Ct.  192. 

545-18b.    Good  will. — Willcox  v.  Consol-  545-18f.       Capitalization. — Knoxville     r-. 

idated  Gas  Co..  212  U.  S.  19,  .53- L.  Ed.  382.  Knoxville    Water  Co.,    212  U.  S.    1.  53    L. 

29   S.   Ct.   192.  Ed.  371,  29  S.  Ct.  148. 

545-18C.     Value  of  franchise.— Willcox  :■.  545-21a.     Original  cost— Depreciation  of 

Consolidated  Gas  Co.,  212  U.  S.  19,  53  L.  plant.— Knoxville  v.  Knoxville  Water  Co., 

Ed.  382,  29  S.  Ct.  192.  212  U.  S.  1,  53  L.  Ed.  371,  29  S.  Ct.  148. 

545-18d.     Increase  since  consolidation. —  A  water  plant  with  all  its  additions  be- 

Willcox  c'.  Consolidated  Gas  Co.,  212  U.  S.  gins  to  depreciate  in  value   from   the  mo- 

19,  53  L.  Ed.  382,  29  S.  Ct.  192.  ment  of  its  use.  and  before  coming-  to  the 

12  U  S  Enc— 63  993 


545-547 


POUCH  POWER. 


Vol.  IX. 


(2>^)  Cost  of  Reproduction. — Deduction  for  Depreciation.— A  deduc- 
tion for  depreciation  from  age  and  use  must  be  made  from  the  estimated  cost 
of  reproducing  a  waterworks  plant  when  determining  the  present  value  of  the 
tangible  property  for  the  purpose  of  testing  the  reasonableness  of  the  rates 
fixed  by  a  municipal  ordinance.^^'' 

(3)  Capacity  to  Pay  Dizndends  as  a  Factor. — Generally. — See  note  22. 

Right  to  Discounts  for  Prompt  Payment  to  Be  Considered.— The  ab- 
sence of  any  requirement  in  a  municipal  ordinance  fixing  water  rates,  that  the 
waterworks  company  shall  continue  to  give  a  discount  for  prompt  payment, 
must  be  taken  into  consideration  when  determining,  for  the  purpose  of  testing 
the  reasonableness  of  such  rates,  the  reduction  in  the  company's  income  which 
Avill  be  produced  by  the  infringement  of  such  ordinance. 22a 

(35^)  Previous  Income. — The  net  income  of  a  waterworks  company  during 
the  years  succeeding  the  passage  of  a  municipal  ordinance  fixing  maximum 
water  rates,  which  has  never  been  enforced,  should  be  considered  by  the  courts 
in  determining  the  reasonableness  of  such  rates. ^2^ 

(4)  Valuation  of  Property  for  Taxation. — See  ante,  "Franchises,"  VI,  L, 
2,  c,    (1/.). 

M.  Conservation  of  Natural  Resources — 1.  Power  of  State  in  Gen- 
eral.— It  is  recognized  that  the  state,  as  quasi  sovereign  and  representative  of 
the  interests  of  the  public,  has  a  standing  in  court  to  protect  the  atmosphere, 
the  water,  and  the  forests  within  its  territory,  irrespective  of  the  assent  or  dis- 
sent of  the  private  owners  of  the  land  most  immediately  concerned. ^^^ 

Exercise  of  Power  Not  Dependent  upon  Exact  Estimates  nor  Specu- 
lative Needs. — The  constitutional  power  of  the  state  to  insist  that  its  natural 
advantages  shall  remain  unimpaired  by  its  citizens  is  not  dependent  upon  any 


question  of  profit  or  net  return  at  all,  the 
company  is  entitled  to  earn  a  sufficient 
sum  annually  to  provide  not  only  for  the 
current  repairs  but  for  making  good  de- 
preciation and  replacing  the  parts  of  the 
property  when  they  come  to  an  end  of 
their  life.  The  company  can  not  there- 
fore claim,  when  an  attempt  is  made  to 
regulate  its  rates,  that  its  income  in  the 
past  has  not  been  sufficient  to  make  these 
repairs  and  to  replace  worn  out  parts,  ond 
that  it  has  had  to  invest  new  capital,  not 
derived  from  its  earnings,  for  the  purpose 
of  making  these  repairs,  _  and  that  in  es- 
tablishing the  value  of  its  property  for 
the  purpose  of  determining  whether  the 
proposed  rates  are  reasonable  it  is  entitled 
to  add  to  the  present  value  of  the  plant, 
the  amount  of  outside  capital  it  has  been 
compelled  to  invest  in  the  unkeep  of  its 
property.  Knoxville  v.  Knoxville  Water 
Co..  212  U.  S.  1,  53  L.  Ed.  371,  29  S.  Ct.  148. 

545-21b.  Cost  of  reproduction — Deduc- 
tion for  depreciation. — Knoxville  v.  Knox- 
ville Water  Co.,  212  U.  S.  1,  53  L.  Ed.  371, 
29  S.  Ct.  148. 

546-22.  Capacity  to  pay  dividends  as  a 
factor. — Whether  property  has  been  taken 
imconstitutionally  through  the  promulga- 
tion and  enforcement  of  an  order  prescrib- 
ing rates  depends  upon  valuation  of  the 
property,  the  income  arising  from  the  pro- 
posed rates  and  the  proportion  between 
the   two.     Prentis  v.   Atlantic   Coast   Line 


Co.,  211  U.  S.  210,  53  L.  Ed.  150,  29  S. 
Ct.  67. 

There  is  no  particular  rate  of  compen- 
sation which  any  corporation  subject  to 
legislative  control  respecting  rates  has 
the  right  to  obtain  without  legislative  in- 
terference. Willcox  V.  Consolidated  Gas 
Co.,  212  U.  S.  19,  53  L.  Ed  382,  29  S.  Ct. 
192. 

Gas  rates,  which  will  yield  to  a  corpo- 
ration having  a  monopoly  of  the  gas  serv- 
ice in  New  York  city  a  return  of  6  per 
cent  upon  the  fair  value  of  the  property 
actually  used  by  such  company  in  its  busi- 
ness, are  not  confiscatory.  Willcox  v.. 
Consolidated  Gas  Co.,  212  U.  S.  19,  53  L. 
Ed.  382,  29  S.  Ct.  192.  See  in  accord,  as 
to  a  water  company,  Knoxville  v.  Knox- 
ville Water  Co.,  212  U.  S.  1,  53  L.  Ed.  371, 
29  S.  Ct.  148. 

546-22a.  Right  to  discounts  for  prompt 
payment  to  be  considered. — Knoxville  v. 
Knoxville  Water  Co.,  212  U.  S.  1,  53  L.  Ed. 
371,  29   S.   Ct.  148. 

546-22b.  Previous  income. — Knoxville 
7'.  Knoxville  Water  Co.,  212  U.  S.  1,  53  L. 
Ed.  371,  29   S.  Ct.  148. 

547-26a.  Conservation  of  natural  re- 
sources— Power  of  state  in  general. — 
Hudson  County  Water  Co.  v.  McCarter, 
209  U.  S.  349,  52  L.  Ed.  828,  28  S.  Ct.  529; 
Kansas  v.  Colorado,  185  U.  S.  125,  141,  46. 
L.  Ed.  838,  22  S.  Ct.  552. 


994 


Vol.  IX.  POSSBSSIOX,  WRIT  OF.  547 

nice  estimate  of  the  extent  of  present  use  or  speculation  as  to  future  needs.-'*^*' 

2.  Power  as  Applied  to  Particular  Subjects. — Natural  Gas. — As  to  the 
power  of  the  state  to  prohibit  the  exportation  of  natural  gas  to  other  states, 
see  ante,  Constitutional  Law,  p.  264;  Due  Process  oe  Law,  p.  475;  Gas, 
p.  607;  Interstate  and  Foreign  Commerce,  p.  689. 

Natural  Mineral  Waters  and  Carbonic  Acid  Gas.— See  ante.  "Gas  and 
Gas  Companies."  \'I,  K,  3,  gg,  and  references  there  given. 

Diversion  of  Waters  of  State  Stream. — The  police  power  of  the  state 
justifies  the  enactment  of  a  law  under  which  a  riparian  owner  may  be  pre- 
vented from  diverting  the  waters  of  a  stream  of  such  state  into  any  other  state, 
for  use  therein. -^"^ 

Fish  and  Game. — See  ante,  "Fish  and  Game."  \l,  I,  and  references  there 
given. 

N.  Control  of  Counties,  Municipal  Corporations  and  Other  Municipal 
Subdivisions. — See  ante.  Coxstitutioxal  Law,  p.  264:  Due  Process  oe 
Law,  p.  475;  Impairment  of  Obligation  of  Contracts,  p.  624;  Municipal 
Corporations,  p.  895. 

0.  Separation  of  the  Races  in  Schools,  Public  Conveyances,  etc. — 
See  ante.  Civil  Rights,  p.  236;  Constitutional  Law.  p.  264;  Due  Process 
OF  Law.  p.  475 ;  Interstate  and  Foreign  Commerce,  p.  689. 

P.  Control  of  Coin  or  Currency, — As  to  whether  the  Philippine  Act  for- 
bidding the  exportation  of  the  silver  coinage  of  those  islands  is  a  valid  exercise 
of  the  police  power,  see  ante.  Constitutional  Law,  p.  264. 

POLICY  OF  INSURANCE.— See  ante.  Insurance,  p.  674. 

POLITICAL   COMMUNITY.— See  note   la. 

POLITICAL   CONTRIBUTIONS.— See  post,  Public  Officers. 

PORTO  RICO,— See  ante,  Constitutional  Law,  p.  264;  post,  Territories. 

POSSESSION. — See  ante.  Limitation  of  Actions  and  Adverse  Posses- 
sion, p.  828;  post.  Quieting  Title. 

POSSESSION,  WRIT  OF.— See  the  title  Possession,  Writ  of,  vol.  9,  p. 
549,  and  references  there  given. 

547-26b.     Exercise  of  power  not  depend-  stream. — Hudson    County     Water    Co.    7: 

ent  upon  exact  estimates  nor  speculative  AlcCarter,  209  U.  S.  349,  52  L.  Ed.  828,  28 

needs.— Hudson  County  Water  Co.  z:  Mc-  S.  Ct.    529.     See,  also,  ante,    CO\STlTU- 

Cirtcr,  209  U.   S.  £49.  52   L.   Ed.  828,  28   S.  TIONAL  LAW,  p.  264;   DUE  PROCESS 

Ct.  529.  OF  LAW,  p.   475;   INTERSTATE   AND 

"We  are  of  opinion,  that  the  constitu-  FOREIGN  COMMERCE,  p.  689. 
tional  power  of  the  state  to  insist  that  its  547-la.  Political  community. — That  tliere 
natural  advantages  shall  remain  unim-  existed  an  organized  political  community 
paired  by  its  citizens  is  not  dependent  in  the  Hawaiian  Islands,  exercising  politi- 
upon  any  nice  estimate  of  the  extent  of  cal,  civil  and  penal  jurisdiction  through- 
present  use  or  speculation  as  to  future  out  what  now  constitutes  the  territory  of 
needs.  The  legal  conception  of  the  nee-  Hawaii,  including  jurisdiction  over  the 
essary  is  apt  to  be  confined  to  somewhat  bay  or  haven  in  question,  when  that  ter- 
rudimentary  wants,  and  there  are  benefits  ritory  was  acquired  under  the  joint  reso- 
from  a  great  river  that  might  escape  a  lution  of  congress  of  July  7,  1 898,  did  not 
lawyer's  view.  But  the  state  is  not  re-  prevent  the  operation  of  §  5339,  Rev.  Stat., 
quired  to  submit  even  to  an  aesthetic  anal-  defining  criminal  jurisdiction  of  federal 
ysis.  Any  analysis  may  be  inadequate.  courts.  That  political  community  did 
It  finds  itself  in  possession  of  what  all  ad-  not  constitute  one  of  the  states  of  the 
mit  to  be  a  great  public  good,  and  what  United  States;  and  if  the  other  jurisdic- 
it  has  it  may  keep  and  give  no  one  to  rea-  tional  facts  existed,  §  5339  came  at 
son  for  its  will."  Hudson  County  Water  once  into  operation.  Wynne  v.  United 
Co.  V.  McCarter,  209  U.  S.  349,  52  L.  Ed.  States,  217  U.  S.  234,  243,  54  L.  Ed.  748, 
828,  28  S.  Ct.  529.  30  S.  Ct.  447.     See  ante,  COURTS,  n.  398; 

547-26C.     Diversion    of    waters    of    state  CRIMINAL   LAW,  p.   434. 

995 


553-567  POSTAL  LAWS.  Vol.  IX. 


POSTAL  LAWS. 
II.  Power  of  the  Federal  Government  under  the  Constitution,  996. 
A.  In  General.  996. 
XII.  Carriage  of  Mails,  996. 

A.  Power  of  Postmaster  General,  996. 

B.  Contracts  for  Carriage,  996. 

3.  Compensation,  996. 

b><.  Implied  Contract,  996. 

c.  Compensation    for   Carriage   over   Subsidized   Railroads,   997. 

7.  Construction  of   Contracts,  997. 

XIV.  Offenses  against  the  Postal  Laws,  997. 

B.  Particular  Offenses,  997. 

8.  Unlawful  Use  of  Mail,  997. 

b.  Use   for   Disseminating  flatter   Pertaining  to   Lotteries,   997. 

c.  Use  for  Disseminating  [Matter  Pertaining  to  Schemes  to  De- 

fraud or  to   Sell  Counterfeit   ]\Ioney,  997. 

XV.  Rulings    of    PostofRce  Department  Determining    to    Whom   Mail 
Shall  Be  Delivered,  ')')8. 

CROSS   REFERENCES. 
See  the  title  Postal  Laws,  vol.  9,  p.  550,  and  references  there  given. 
In  addition,  see  ante.  Carriers,  p.  216;    Injunctions,  p.  657. 

II.  Power  of  the  Federal  Government  under  the   Constitution. 

A.  In  General. — The  power  of  congress  to  establish  postofhces  and  post 
roads  is  not  infringed  by  Act  Pa.  April  4,  1868,  under  which  a  railway  postal 
clerk,  injured  in  the  course  of  his  employment,  can  have  no  greater  rights 
against  the  railway  company  than  if  he  were  an  employee."'' 

XII.    Carriage  of  Mails. 

A.  Power  of  Postmaster  General. — See  note  99. 

B.  Contracts  for  Carriage — 3.  Compensation — hYz.  Implied  Contract. 
— The  United  States  is  not  liable  as  on  an  implied  contract  to  pay  the  reason- 
able value  of  the  railway  postoffi.ce  car  service  furnished  and  actually  used  by 
the  postoffice  department,  consisting  of  "full  lines"  of  cars  60  feet  in  length, 
where  the  railway  company,  being  under  no  obligation  to  carry  the  mails  or 
to  supply  postoffice  cars,  chose  to  furnish  such  service  after  being  informed 
that  the  department  only  needed  and  would  only  pay  for  50-foot  cars  on  the 
return  trip,  and  had  established  "half  lines,"  consisting  of  60-foot  cars  going 
and  50-foot  cars  returning,  instead  of  exercising  its  right  to'  decline  to  supply 

553-7a.      Statute    held     not    to    infringe  way  postoffice   car   service   not   exceediner 

power   of   congress. — Alar  tin   r.   Pittsburg,  the    statutory   maximum,   which   varies   in 

etc..  R.  Co.,  203  U.  S.  284,  51  L.  Ed.  184,  27  proportion    to  the    length  of    the  car,    ex- 

S.  Ct.  100.  affirming  72  Ohio  St.  659,  76  N.  tends    to    fixing    the    same    price    for    the 

E    1129.     See  ante,  CARRIERS,  p.  216.  longer  as  for  the  shorter  cars,  and  to  abol- 

567-99.     The  authority  of  the  postmaster  ishing    "full    lines"    or    establishing    "half 

general  under  the  Act  of  Alarch  2,  1907  (.34  lines,"  and  adjusting  the  rates  accordingly. 

Stat,   at   L.   1212,   chap.   2513,   U.   S.   Comp.  Atchison,    etc..    R.    Co.    v.    United    States. 

Stat.  Supp.  1911,  p.  1148),  to  name  any  225  U.  S.  640,  56  L.  Ed.  1236,  32  S.  Ct.  702. 
rate  for  additional  compensation   for  rail- 

996 


Vol.  IX. 


POSTAL  LAU  S. 


567-586 


the  service  on  the  conditions  named. "'^ 

c.    Compensation  for  Carriage  over  Subsidized  Railroads. — See  note  11. 
7.    CoxsTRUCTiox  OF  CONTRACTS. — See  note  47. 

XIV.    Offenses  against  the  Postal  Laws. 

B.  Particular  Offenses — 8.  Uxl.wvful.  Use  of  :\Iail— b.  Use  for  Dis- 
seminating Matter  Pertaining  to  Lotteries. — The  offense  of  using  the  mails  in 
furtherance  of  "schemes  devised  for  the  purpose  of  obtaining  money  or  prop- 
erty under  false  pretenses,"'  denounced  by  Rev.  St.,  §  3894  ( U.  S.'Comp.  St. 
1901.  p.  2659),  includes  only  schemes  having  a  similitude  to  the  lottery  and 
other  like  schemes  particularly  described  by  the  particular  words  of  the  sec- 
tion, and  does  not  cover  the  use  of  the  mails  to  promote  other  schemes  to  obtain 
money  or  property  by  means  of  false  pretenses,  which  is  embraced  by  the  pro- 
visions of  section  5480  ( U.  S.  Comp.  St.  1901,  p.  3696),  making  criminal  the 
use  of  the  mails  to  carry  on  any  scheme  of  artifice  to  defraud. ^'^ 

c.  Use  for  Disseminating  Matter  Pertaining  to  Schemes  to  Defraud  or  to 
Sell  Counterfeit  Money. — Laying  the  venue  of  the  trial  of  a  conspiracy  to  com- 
mit the  oft'ense  against  the  United  States  denounced  by  the  United  States  Re- 
vised Statute,  §  5480,-'"^  making  criminal  the  use  of  the  mails  to  carry  on  a 
scheme  or  artifice  to  defraud,  in  the  state  and  federal  judicial  district  where 
an  overt  act  is  performed,  satisfies  the  recjuirement  of  the  sixth  amendment 
to  the  constitution  of  the  United  States  that  all  crimes  be  tried  in  the  state 
and  district  where  committed.-*^''  The  exact  place  of  the  formation  of  such  a 
conspiracy  need   not   be   stated   in   an   indictment   which   lays   the   venue  at   the 


567-lOa.  United  States  not  liable  as  on 
an  implied  contract. — Atchison,  etc.,  R. 
Co.  f.  United  States.  225  U.  S.  640.  56  L. 
Ed.  1236.  32  S.  Ct.  702. 

568-11.  Construction  of  statute  fixing 
rates  on  subsidized  railroads. — A  railway 
company  carrying  the  mails  over  a  con- 
tinuous route  which  includes  certain  land- 
aided  railroads  is  only  entitled  to  the  land- 
grant  rates  for  those  portions  of  the  route, 
under  the  provisions  of  Act  July  12.  1S76. 
c.  179,  §  13,  19  Stat.  82  ("U.  S.  Comp.  St. 
1901.  p.  2722),  that  railroad  companies 
whose  railroad  was  constructed  in  whole 
or  in  part  by  a  grant  of  land  made  by  con- 
gress on  the  condition  that  the  mails 
should  be  transported  over  their  roads  at 
such  price  as  congress  should  by  law  direct 
should  receive  only  SO  per  cent  of  the 
compensation  fixed  by  that  act  for  similar 
service  for  nonland-aided  roads,  which 
provisions  must  be  construed  as  extend- 
ing not  only  to  the  original  land-aided 
companies,  but  to  every  other  company 
carrying  the  mails  over  such  roads.  Judg- 
ment (1908),  43  Ct.  CI.  595,  affirmed.  Chi- 
cago, etc.,  R.  Co.  V.  United  States.  217  U. 
S.'lSO,   54   U.   Ed.  721.  30   S.   Ct.   470. 

572-47.  Screen  wagon  mail  service — 
Service  included  in  contract. — The  service 
contemplated  by  a  screen  wagon  mail 
service  contract  for  carriage  between  the 
postoffice  and  railway  mail  stations  at 
Omaha  must  be  deemed  to  include  the 
mails  to  and  from  all  the  railroads  using 
the  union  station  at  that  point,  although 
some  of  such  railroads  were  not  specific- 
ally named  in  the  contract,  where  it  had 


long  been  the  practice  of  the  government 
and  the  screen  wagon  contractors  to  re- 
gard such  service  as  a  part  of  the  contract, 
and  the  public  advertisement  for  propos- 
als, expressl)^  made  a  part  of  the  contract, 
warned  bidders  to  familiarize  themselves 
with  the  situation  by  personal  investiga- 
tion and  inquiry.  Huse  v.  United  States, 
222  U.  S.  496.  56  L.  Ed.  285,  32  S.  Ct.  119, 
affirming  44  Ct.  CI.  19. 

585-17a.  Offenses  covered  by  Revised 
Statutes,  §  3894.— United  States  r.  Stever, 
222  U.  S.  167,  56  L.  Ed.  145,  32  S.  Ct.  51. 

flaking  false  and  fraudulent  representa- 
tions through  the  mails  to  prospective 
buj-ers  of  cattle,  to  promote  a  scheme  to 
defraud  by  inducing  them  to  come  and  in- 
pect  the  cattle,  after  which  inferior  cattle 
were  to  be  substituted  in  the  place  of 
those  inspected  and  sold,  is  not  punisha- 
ble under  Rev.  St..  §  3894  (U.  S.  Comp.  St. 
1901,  p.  2659),  making  criminal  the  use  of 
the  mails  in  furtherance  of  lotteries,  or 
schemes  of  gain  dependent  upon  chance, 
or  "schemes  devised  for  the  purpose  of 
ol)taining  monej'  or  property  under  false 
pretenses,"  but  such  acts  constitute  the 
oflfense  prohibited  by  §  5480  (U.  S.  Comp. 
St.  1901.  p.  3696)  of  using  the  mails  to 
carry  on  any  scheme  or  artifice  to  defraud. 
United  States  v.  Stever.  222  U.  S.  167.  56 
L.  Ed.  145.  32  S.  Ct.  51. 

586-26a.  Laying  venue.— U.  S.  Comp. 
Stat.  1901,  p.  3f)y.i. 

586-26b.  Rrown  i.  Elliott.  225  U.  S.  392, 
56  L.  Ed.  1136,32  S.  Ct.  812.  See  post. 
VENUE. 


99: 


586-587  POWERS.  Vol.  IX. 

place  where  an  overt  act  was  committed. ^^'^  Where  the  indictment  alleges 
that  the  conspiracy  was  designed  to  be  and  was  in  fact  continuous,  it  continues, 
so  far  as  the  statute  of  limitations  is  concerned,  so  long  as  any  overt  acts  are 
done  by  any  of  the  conspirators  in  furtherance  of  the  conspiracy.^^*^ 

XV.    Rulings    of    PostofRce    Department    Determining    to    Whom    Mail 

Shall  Be  Delivered. 

The  courts  will  not  interfere  with  a  ruling  of  the  postofifice  department  de- 
termining to  whom  mail,  addressed  in  a  certain  way,  shall  be  delivered,  where 
such  ruling  is  not  palpably  erroneous. ^''^ 

POSTMASTER   GENERAL.— See  ante,  Postal  Laws,  p.  996. 

POST  ROADS. — See  ante,  Postal  Laws,  p.  996.  And  see  ante,  Lntkrstate 
AND  Foreign  Commerce,  p.  689;  post,  Telegraphs  and  Telephones. 

POWDER. — Powder  is   an   explosive.^ 

POWER  OF  ATTORNEY.— See  post,  Powers.  As  to  revocation  of  power 
of  attorney  to  accept  service  of  process,  see  ante.  Insurance,  p.  674 ;  post, 
Summons  and  Process. 


POWERS. 

m.  Revocation,  998. 

CROSS   REFERENCES. 

See  the  title  Powers,  vol.  9,  p.  588,  and  references  there  given. 

In  addition,  see  ante,  Insurance,  p.  674;  post.  Summons  and  Process. 

As  to   revocation  of  power  of  attorney  to  accept  service  of  process  in   suit 
against   foreign   insurance   company,   see  ante,   Insurance,   p.  674 ;   post,   Sum- 
-MONs  AND  Process. 

III.    Revocation. 

With  certain  exceptions,  a  princi]ial  named  in  a  power  of  attorney  may  re- 

586-26C.     Indictment  need  not  state  ex-  with   no  further  designation  of  the  party 

act    place    of    formation    of    conspiracy. —  for    whom  it  is    intended,  be    delivered    to 

Brown  v.  Elliott,  225  U.  vS.  392,  .50  L.  Ed.  the  "Central  Trust  Company  of  Illinois," 

]136,    32  S.    Ct.  812.      See,    also,  ante,    IN-  an   Illinois   banking  corporation,   and   not 

DICTMENTS,  INFORMATIONS,  PRE-  to  a  foreign  corporation,   engaged  in  the 

SENTMENTS   AND    COMPLAINTS,   p.  mining,  promoting,   real  estate,  and  trust 

652.  business,  in  the  city  of  Chicago,  under  the 

586-26d.    Statute  of  limitations. — Brown  name    of    the  "Central    Trust    Company." 

V.  Elliott,  225  U.  S.  392,  56  L.  Ed.  1136,  32  Central    Trust  Co.    v.  Central    Trust    Co., 

S.   Ct.   812.  2]  6  U.  S.  251,  54  L.   Ed.  4G9,  30  S.   Ct.  341. 

587-27a.  Rulings  with  which  the  courts  587-a.  "Powder  is  an  explosive,  danger- 
will  not  interfere. — The  ruling  of  the  post-  ous  to  handle,  the  degree  of  danger  cor- 
office  department  that  mail  addressed  to  responding  to  its  quantity.  It  is  subject, 
the  "National  Life  Insurance  Company"  therefore,  to  a  measure  of  regulation 
at  Chicago,  111.,  without  street  or  office  ad-  from  which  harmless  articles  of  com- 
dress,  be  delivered  to  the  corporation  of  merce  may  be  exempt."  Williams  v. 
that  name,  and  not  to  a  company  subse-  Walsh,  222  U.  S.  415,  424,  56  L.  Ed.  253, 
quently  incorporated,  with  a  similar  name,  32  S.  Ct.  137.  See  ante,  INTERSTATE 
will  not  be  interfered  with  because,  judg-  AND  FOREIGN  COMMERCE,  p.  689. 
ing  from  past  experience,  the  very  great  Blasting  powder  is  an  explosive  and 
majority  of  the  mail  so  addressed  is.  in  one  of  power.  It  is  included  in  the  words 
fact,  intended  for  the  latter  company.  Na-  "or  other  explosives"  as  used  in  a  condi- 
tional Life  Ins.  Co.  v.  National  Life  Ins.  tion  of  a  fire  insurance  policy,  prohibiting 
Co.,  209  U.  S.  317,  52  L.  Ed.  808,  28  S.  Ct.  the  keeping,  use  or  allowance  of  certain 
541.  designated     explosives     and     inllammable 

The  courts  will  not  interfere,  where  no  substances,  "or  other  explosives."  Pen- 
palpable  error  appears,  with  the  ruling  of  man  z'.  St.  Paul  Fire,  etc.,  Ins.  Co.,  216  U. 
the  postoffice  department,  that  mail  ad-  S.  311.  5  L.  Ed.  493,  30  S.  Ct.  312.  See 
dressed,  "Central  Trust  Co.,  Chicago,  111.."  ante,  INSURANCE,  p.  674. 

998 


Vol.  IX. 


PRESCRIPTION. 


593-611 


voke  such  an  interest  at  his  mere  pleasure,  though  the  agency  may  be  expressly 
claimed  to  be  irrevocable;  but  when  the  authority  or  power  is  coupled  with  an 
interest,  or  when  it  is  a  part  of  the  security,  the  power  is  irrevocable,  whether 
so  expressed  or  not.^^^ 

PRACTICE  CONFORMITY  ACT.— See  ante,  Courts,  p.  398.  And  see  the 
particular  titles. 

PRACTICE  OF  LAW.— See  ante,  Attorney  and  Client,  p.  158:  post, 
Treatiks. 

PRACTICING  MEDICINE.— See  note  la. 

PRE-EMPTION.— See  post,   Pubuc  Lands. 

PREFERENCE. — See  ante.  Fraudulent  and  Voluntary  Conveyances 
p.  600. 

PREFERENTIAL  TRANSFER.— See  ante.  Fraudulent  and  \^oluntary 
CoXVEVANCES.  p.   600. 

PREMATURE  SUITS.— See  the  title  Premature  Suits,  vol.  9,  p.  610,  and 
references  there  given.  As  to  a  premature  action  upon  the  redelivery  bond  in 
replevin,  see  post,  Replevin. 

PRESCRIPTION. 

CROSS   REFERENCES. 

See  the  title  Prescription,  vol.  9,  p.  611,  and  references  there  given. 

Under  Spanish  and  Civil  Law.— See    note  4a. 


593-19a.  Strong-  c'.  Buffalo  Land,  etc., 
Co.,  203  U.  S.  582,  51  L.  Ed.  327,  27  S.  Ct. 
780,  affirming-  91  Minn.  84,  97  N.  W.  575. 
See,  also,  Hunter  v.  Mutual  Reserve  Life 
Ins.  Co.,  218  U.  S.  573,  54  L.  Ed.  1155,  31 
S.  Ct.  127. 

609-la.  Practicing  medicine. — Section 
13  of  the  Texas  Act  establishing-  a  board 
of  n-iedical  examiners,  declares  that  ''any 
person  shall  be  regarded  as  practicing 
medicine  within  the  meaning"  or  this  act 
*  *  *  (2)  Or  -who  shall  treat  or  ofifer  to 
treat  any  disease  or  disorder,  mental  or 
physical,  or  any  physical  deformity  or 
injury  by  any  system  or  method  or  to  ef- 
fect cures  thereof  and  charge  therefor, 
directly  or  indirectlj^  money  or  other 
compensation."  The  court  said:  "We 
are  far  from  agreeing  -vN'ith  the  plaintifif 
in  error  that  the  definition  of  practicing 
medicine  in  §  13  is  arbitrary  or  irrational, 
but  it  -w'ould  be  immaterial  if  it  were,  as 
its  only  object  is  to  explain  who  fall 
within  purview  of  the  act."  Collins  v. 
Texas,  223  U.  S.  288,  295,  56  L.  Ed.  439,  32 
S.  Ct.  286.  See  ante.  PHYSICLA.XS 
AND  SURGEONS,  p.  949. 

611-4a.  Under  Spanish  and  civil  law. — 
Book  12.  title  4.  law  14,  of  the  Recopila- 
cion  de  Leyes  de  las  Indias,  confers  title 
on  those  who  hold  by  just  a  prescription. 
Prescription  is  also  mentioned  in  the  royal 
Cedula  of  Oct.  15,  1753:  "Where  such  pos- 
sessors shall  not  be  able  to  produce  title 
deeds,  it  shall  be  sufficient  if  'they  shall 
show  that   ancient   possession,   as  a  valid 


title  by  prescription."  It  may  be  that  this 
means  possession  from  before  1700,  but 
at  all  events  the  principle  is  admitted.  If 
prescription,  even  against  crown  lands, 
was  recognized  by  the  laws  in  Spain,  there 
is  no  reason  for  hesitating  to  admit  that 
it  was  recognized  in  the  Philippines  in  re- 
gard to  lands  over  which  Spain  had  only 
a  paper  sovereignty.  Carino  v.  Insular 
Government,  212  U.  S.  449,  460,  53  L.  Ed. 
594,  29  S.  Ct.  334. 

The  rule  of  prescription  of  civil  law  con- 
fers ownership  on  those  who  establish 
that  they  have  possessed  the  lands  in 
question  for  the  requisite  time  under  just 
title  and  in  good  faith.  The  phrase 
"justo  titulo"  means  a  title  such  as  to 
transfer  the  propert^^  or,  as  it  is  defined 
in  the  Civil  Code,  §  1952,  "that  which  le- 
gally suffices  to  transfer  the  ownership 
on  property  rights,  the  prescription  of 
which  is  in  question."  This  does  not 
mean  that  the  titulo  must  have  been  ef- 
fective in  the  particular  case,  for  then 
prescription  would  be  unnecessary.  For 
instance  if  a  private  person  in  possession 
ot  crown  lands,  seeming  to  be  the  owner, 
executes  a  formall}^  valid  conveyance  un- 
der which  the  grantee  held,  supposing  his 
title  good,  possession  for  the  requisite 
period,  that  creates  an  indisputal)le  right: 
l)ut  if  the  public  facts  known  by  the 
grantee  showed  that  the  conveyance  to 
him  was  valid,  it  would  not  constitute  a 
stalling  point  for  the  running  of  time  :ind 
the  grantee's  actual  belief  would  not  help 


999 


623-634       PRESUMPTIOXS  AXD  BURDEX   OF  PROOF. 


\'ol.  IX. 


PRESENTMENT. — See  ante,  Ixdictments,  Informations,  Presentments 
AND  Complaints,  p.  632. 

PRESIDENT  OF  THE  UNITED  STATES.— See  the  title  President  oe 
IHE  United  States,  vol.  9,  p.  614,  and  references  there  given. 

PRESUMPTIO   JURIS.— See  post.   Presumptions  and  Burden  of  Proof. 

PRESUMPTION  OF  INNOCENCE.— See  post,  Presumptions  and  Burden 
of  Proof. 


PRESUMPTIONS  AND  BURDEN  OF  PROOF. 

I.  Presumptions,   1000. 

F.  Presumptions  in  Criminal  Cases,   1000. 

2.  Presumption   of   Innocence,    1000. 
O.  Presumption  That  Things  Are  Rightly  Done,  1000. 
2.  Presumption   That   Persons  Do   Their  Dutv.    1000. 
b.  Public  Officers,   1000. 

II.  Burden  of  Proof,  1001. 

B^.  Where  Party  Sets  Up  Exception  in  Contract  or   Statutes.   1001. 
E.  Shifting  of  the  Burden.  1001. 
1.  In  Civil  Cases.  1001. 

CROSS   REFERENCES. 

See  the  title  Presumptions  and  Burden  of  Proof,  vol.  9,  p.  618.  and  refer- 
ences there  given. 

I.    Presumptions. 

F.  Presumptions  in  Criminal  Cases — 2.  Presumption  of  Innocence. — 
Presumptio  Juris. — See  note  13. 

0.  Presumption  That  Things  Are  Rightly  Done — 2.  Presumption  That 
Persons  Do  Their  Duty — b.    Public   Officers. — See  note  51. 


his  case.  Indeed,  he  would  not  be'  re- 
garded as  holding  in  good  faith,  within 
the  requirement  of  the  rule,  because  a 
man  is  not  allowed  to  take  advantage  of 
his  ignorance  of  the  law.  Tiglao  z'.  In- 
sular Government,  215  U.  S.  410,  54  L. 
Ed.  257,  30  S.   Ct.   129. 

A  wholly  unauthorized  grant  of  public 
land  in  the  Philippine  Islands  by  subor- 
dinate Spanish  officials,  showing  its  in- 
validity on  its  face,  can  not  serve  as  the 
basis  of  a  prescriptive  title  under  the 
Spanish  royal  decree  of  June  25,  1880, 
under  which  a  prescriptive  right  can  be 
founded  on  possession  for  ten  years  un- 
der just  title  and  in  good  faith.  Tiglao 
f.  Insular  Government,  215  U.  S.  410,  54 
L.    Ed.   257,   30   S.    Ct.   129. 

A  person  who  had  occupied  land  in 
the  province  of  Benguet  for  more  than 
fifty  years  before  the  treaty  of  Paris, 
April  11,  1899,  is  entitled  to  possession 
therefor  and  should  not  be  deprived  of 
his  property  through  a  refined  interpreta- 
tion of  almost  forgotten  Spanish  law. 
Carino  v.  Insular  Government,  2J2  U.  S. 
449,  460,  53   L.   Ed.  594,  29   S.    Ct.  334. 

623-13.  Presumptio  juris. — Holt  v. 
United  States.  218  U.  S.  245,  253,  54  L. 
Ed.   1021,  31   S.   Ct.   2. 


Beyond  a  reasonable  doubt. — The  jury 
is  correctly  instructed  as  to  the  presump- 
tion of  innocence  where  the  court  states 
that  a  criminal  prosecution  begins  with 
the  presumption  that  the  defendant,  al- 
though accused,  is  innocent,  and  that  to 
overcome  this  legal  presumption  the  evi- 
dence must  be  clear  and  convincing,  and 
sufficiently  strong  to  convince  the  jury 
beyond  a  reasonable  doubt  that  the  de- 
fendant is  guilty.  Holt  f.  United  States, 
218  U.  S.  245,  54  L.  Ed.  1021,  31  S.  Ct.  2, 
affirming  judgment  in  United  States  v. 
Holt   (C.   C.  1909),  168   F.   141. 

634-51.  Acts  presupposing  existence  of 
other  acts. — It  will  be  presumed  in  the 
absence  of  any  showing  to  the  contrary, 
that  the  governor  general  of  the  Philip- 
pines reported  a  grant  of  tide  lands  to  his 
superiors  at  Madrid,  as  required  by  royal 
decree.  Costas  v.  Insular  Government, 
221  U.  S.  623,  55  L.  Ed.  884,  31  S.  Ct.  664. 
See  post,   PUBLIC   OFFICERS. 

A  presumption,  though  not  a  conclusive 
one,  that  there  has  been  a  compliance 
with  the  condition  precedent  to  the  issu- 
ance of  county  bonds  in  payment  of  a  sub- 
scription to  the  capital  stock  of  a  rail- 
way company,  that  the  county  should  first 
be    exonerated    froin   a   prior   subscription 


1000 


Vol.  IX.  PRINCIPAL  AXD  AGEXT.  636-648 

II.    Burden  of  Proof. 

B^.  Where  Party  Sets  Up  Exception  in  Contract  or  Statutes.— When 
a  proviso  embodying  a  condition  subsequent  carves  an  exception  out  of  the 
body  of  a  statute  or  contract,  those  who  set  up  such  exception  must  prove  it.^^* 

E.     Shifting   of   the   Burden— 1.    Ix    Civil   Cases.— See   note  62. 

PRIMA  FACIE.— See  ante.  Evidence,  p.  558. 

PRIMARY  EVIDENCE.— See  ante,  Best  and  Secondary  Evidence,  p   202 

PRIMARY  LIMITS.— See  post,  Public  Lands. 


PRINCIPAL  AND  AGENT. 

V.  Manner  of  Conferring  Authority,    1001. 

B.  Authority   Conferred  by   Implication.   1001. 

IX.  Rights,  Duties  and  Liabilities,   1002. 

A.  As  between  Principal  and  Agent,   1002. 

1.  Duties  and  Liabilities  of  Agent  to  Principal.  1002. 
c.  Good  Faith   in   Dealing  with   Principal,   1002. 
(1)   In  General.    1002. 

e.  Accounting,   1002. 

f.  Action   by    Principal    against    Agent,    1002. 

B.  As  between  Principal  or  Agent  and  Third  Persons.  1002. 

6.  Notice   to  Agent  as   Notice  to   Principal,    1002. 
a.  General   Rule.   1002. 

CROSS   REFERENCES. 

See  the  title  Principal  and  Agent,  vol.  9.  p.  640.  and  references  there  given. 
In  addition,  see  ante.  PoW'Ers.  p.  998.     As  to  questions  of  agencv  relating  to 
officers  of  the  public,  see  post.  Public  Officers. 

V.    Manner  of  Conferring  Authority. 

B.  Authority  Conferred  by  Implication. — The  relation  of  a  government 
acting  in  its  political  capacity  to  a  person  who  furnishes  the  information  upon 
which  it  acts  can  not,  from  the  very  nature  of  things,  be  that  of  principal  and 
agent.-*'* 

to  the  stock  of  another  railroad  companj%  Panama,  over  which  the  Costa  Rican  gov- 

arises  from  the  mere  fact  of  subscription  ernment    exercised    de    facto    sovereignty, 

and  issuance   by  the   officer  charged   with  was  injured  through  the  acts  of  the  Costa 

the    duty   of   issuing   the    bonds   upon    the  Rican   officers   and   soldiers   acting  pursu- 

performance    to    the    condition    precedent.  ant  to  an  alleged  conspiracy  between  the 

Judgment    (C.    C.    A.     1907).      Quinlan     f.  officers   and     defendant,     plaintiff's     com- 

Green  County,  157  F.  33,  modified.   Green  petitor    in    business,    defendant    could    not 

County  V.    Quinlan,   211   U.    S.   582,   53    L.  be   charged   with    the    acts   of   such    Costa 

Ed.   335.   29   S.   Ct.   162.  Rican    officials   on   the     theory     that      the 

636-59a.    Burden   of  proof. — Javierre    v.  Costa  Rican  government  merely  acted  as 

Central   Altagracia,   217   U.   S.  502.   507,   5+  defendant's   agent   in   carrying  out   its   de- 

L.    Ed.   859.   30   S.   Ct.   598.  sires:    there    being    nothing   to    show   that 

637-62.  Setting  up  facts  amounting  to  the  Costa  Rican  government  was  not  act- 
indirect  negative. — An  allegation  of  fact  ing  on  its  own  responsibility  and  in  its 
that  is  material  only  as  an  indirect  nega-  governmental  capacity.  Jud,gment  (C.  C. 
tive  of  something  to  be  proved  by  the  1908).  160  F.  184,  affirmed.  (1908)  Amori- 
other  party  does  not  shift  the  burden  of  can  Banana  Co.  v.  United  Fruit  Co..  166 
proof.  Javierre  v.  Central  Altagracia,  217  F.  261,  92  C.  C.  .\.  325.  judgment  affirmed 
U.  vS.  502,  508,  54  L.  Ed.  859,  30  S.  Ct.  598.  American  Banana  Co.  v.  United  Fruit  Co.. 

648-26a.  Authority  conferred  by  indica-  213  U.  S.  347.  53  L.  Ed.  826,  29  S.  Ct.  511. 
ticn. — Where       plaintiff's       plantation      in 

1001 


667-692 


PRIXCIPAL  AND  AGEXT. 


Vol.  IX. 


IX.    Rights,  Duties  and  Liabilities. 

A.  As  between  Principal  and  Agent — 1.  Duties  and  Liabilities  of 
Agent  to  Principal — c.  Good  Faith  in  Dealing  zvith  Principal — (1)  In  Gen- 
eral.— See  note  32.  An  agent  who  makes  a  secret  profit  in  the  execution  of 
his  agency  may  be  compelled  to  disgorge.^'*^  And  when  an  agent  agrees  to 
purchase  property  for  a  buyer  at  not  exceeding  a  specified  sum,  he  can  not 
avail  himself  of  an  unexpired  option  antedating  the  employment  to  purchase 
the  property  at  a  less  price  himself  and  make  the  difiference.-^^'' 

e.  Accounting. — An  army  engineer  in  charge  of  a  harbor  improvement,  who 
secretly  receives  from  the  contractors  a  proportion  of  the  abnormal  profits 
realized  by  them  in  the  execution  of  their  contracts,  may  be  required  to  account 
in  equity  to  the  United  States  for  the  share  so  received,  without  any  showing 
of  any  specific  abuse  of  discretion  on  his  part,  of  any  actual  loss  to  the  govern- 
ment by  fraud  or  otherwise. ^^'^ 

f.  Action  by  Principal  against  Agent. — An  agent  who  makes  a  secret  profit 
m  the  execution  of  his  agency  may  be  compelled  to  disgorge  and  required  to 
do  so  in  an  action  upon  an  implied  promise.*""' 

B.  As  between  Principal  or  Agent  and  Third  Persons — 6.  Notice  to 
Agent  as  Notice  to  Principal — a.    General  Rule. — See  note  67. 


667-32.  Good  faith  in  dealing  with 
principal — In  general. — United  States  :•. 
Carter,  217  U.  S.  286,  54  L.  Ed.  769,  30  S. 
Ct.  515;  Sandoval  v.  Randolph,  222  U.  S. 
161,  56  L.  Ed.  142,  32  S.  Ct.  48.  See  post, 
"Accounting."   IX,   A,  1,  2. 

668-34a.  Accounting  for  profits. — San- 
doval z:  Randolph.  222  U.  S.  161.  56  L. 
Ed.   142,   32   S.   Ct.   48. 

668-34b.  Purchasing  for  himself. — 
Sandoval  v.  Randolph,  222  U.  S.  161,  56 
L.    Ed.    142,   32   S.    Ct.   48. 

The  contention  of  one  sued  in  assumpsit 
as  the  agent  for  the  buyer  of  a  mine,  upon 
an  implied  promise  to  refund  a  secret 
profit  made  in  the  execution  of  the 
agenc}',  that  he  was  in  fact  the  owner  of 
the  mine  at  the  time  he  agreed  to  act  for 
the  buyer  in  purchasing  it,  is  not  estab- 
lished by  a  contract  antedating  the 
agency,  by  which  the  owners  agreed  to 
sell  the  mine  to  the  defendant  in  con- 
sideration, with  right  of  redemption  within 
six  months,  of  a  specified  sum,  with  the 
further  agreement  that  they  would  not 
exercise  the  right  of  redemption  if  he 
should  pay  to  them  the  further  considera- 
tion of  a  specified  sum,  since  such  con- 
tract is  nothing  more  than  an  option.  San- 
doval r.  Randolph,  222  U.  S.  161.  56  L.  Ed. 
142,  32  S.  Ct.  48,  affirming  judgment 
(1908),    95    P.    119,    11    Ariz.    871. 

672-58a.  Accounting. — United  States  v. 
Carter,  217  U.  S.  2S6,  51  L.  Ed.  769.  30  S. 
Ct.  515.  See  post,  PUBLIC  OFFICERS; 
UNITED  STATES. 

In  United  States  v.  Carter,  217  U.  S. 
286,  305,  54  L-  Ed.  769,  30  S.  Ct.  515,  Mr. 
Justice  Lnrton  in  delivering  the  opinion 
of  the  court  said:  "If  it  be  once  assumed 
that  the  defendant.  Carter,  did  secretly 
receive  from  Greene  and  Gaynor  a  pro- 
portion  of  the  profits  gained  by   them   in 


the  execution  of  the  contracts  in  ques- 
tion, the  right  of  the  United  States  in 
equity  to  a  decree  against  him  for  the 
sliare  so  received  is  made  out.  It  is  im- 
material if  that  appears  Vwliether  the  com- 
plainant was  able  to  show  any  specific 
abuse  of  discretion,  or  whether  it  was 
able  to  show  that  it  had  suffered  any  ac- 
tual loss  by  fraud  or  otherwise.  It  is  not 
enougli  for  out-  occupying  a  confidential 
relation  to  another,  Avho  is  shov/n  to  have 
secretly  received  a  benefit  from  the  op- 
posite party,  to  say.  'You  can  not  show 
any  fraud,  or  you  can  not  show  that  you 
have  sustained  any  loss  by  my  conduct.' 
Such  an  agent  has  the  power  to  conceal 
his  fraud  and  hide  the  injury  done  his 
principal.  It  would  be  a  dangerous  prec- 
edent to  lay  down  as  law  that  unless 
some  affirmative  fraud  or  loss  can  be 
shown,  the  agent  may  hold  on  to  any 
secret  benefit  he  may  be  able  to  make 
out  of  his  agency.  The  larger  interests 
of  public  justice  will  not  tolerate,  under 
any  circumstances,  that  a  public  official 
shall  retain  any  profit  or  advantage  which 
he  may  realize  through  the  acquirement 
of  an  interest  in  conflict  with  his  fidelity 
as  an  agent.  If  he  takes  any  gift,  gratuitj' 
or  benefit  in  violation  of  his  duty,  or 
acqvures  any  interest  adverse  to  his  prin- 
cipal without  a  full  disclosure,  it  is  a  be- 
trayal of  his  trust  and  a  breach  of  confi- 
dence, and  he  must  account  to  his  prin- 
cipal   for   all   lie   lias    received." 

673-60a.  Action  in  assumpsit. — Sandoval 
f.  Randolph,  222  U.  S.  161,  56  L.  Ed.  142, 
32   S.   Ct.  48. 

692-67.  Notice  to  agent  as  notice  to 
principal — In  general.- — Knowledge  of  the 
local  attorney  and  president  of  the  local 
board  of  directors  of  a  foreign  building 
and  loan  association  in   regard   to   a  mat- 


1002 


Vol.  IX.  PRLXCIPAL  AXD  SURETY.  718 


PRINCIPAL  AND  SURETY. 
II.  The  Contract  of  Suretyship,  1003. 

E.  Construction,  1003. 

1.  General  Rule,    1003. 

F.  Liability  on   Contract,   1004. 

1.  Measure   of   Surety's   Liability,    1004. 
b.  Liability  of   Surety  on   Bond,    1004. 

III.  Discharge  or  Release  of  Surety,  1004. 

C.  Alteration  of  Contract,   1004. 

1.  General  Rule,   1004. 

6.  Extension  of  Time  to  Principal,   1004. 

D.  Acts  or  Omissions  of  Creditor  or  Obligee,   1004. 

2.  Extension  of   Time  to   Principal,    1004. 

b.  Limitations  or  ^Modifications  of  Rule.  1004. 

(2)  Necessity   for  Consideration,    1004. 

(3)  Must  Be  without  Surety's  Consent,  1004. 

(5)   Agreement   ]Must   Be   for   Definite   Delay,    1004. 

4.  Failure  to  Give  Notice  to  Surety  of  Default,  1004. 

5.  Neglect  to  Proceed  against  Principal,  1004. 

F.  Consent  by   Surety  to   Transactions  between   Creditor   and   Principal, 
1004. 

IV.  Rights  and  Remedies  of  Sureties,   1004. 

A.  As  against  Principal,  1004. 

2.  Right  to  Reimbursement  and  Exoneration,   1004. 

3.  Subrogation  to  Rights  of  Creditor,   1005. 

V.  Actions  or  Suits  against  Principal  and  Surety,   1005. 
D.  Parties,   1005. 
H.  Judgment  or  Decree,  1005. 
2.  Against  Surety,   1005. 

CROSS   REFERENCES. 
See  the  title  Principal  axd  Surety,  vol.  9,  p.  713,  and  references  there  given. 
As  to  discharge  of  surety  in  redelivery  bond,  see  post,  ReplEvix. 

II.    The  Contract  of  Suretyship. 
E.      Construction — 1.     General    Rule. — Instrument    Construed    as    a 
Whole. — Where   the   contract  of   suretyship   makes   another   instrument   a  part 
thereof,  the  former  must  be  construed  in  connection  with  it.^^^ 

ter    coming    within    the    sphere    of    their  statements,    in    writing,    made    by    the    as- 

duty,  and  acquired  while  acting  with  refer-  sistant  cashier  of  the   bank  as   to  the  du- 

ence    thereto,    and    before    sending   to   the  ties    and    accounts    of    the    president,    and 

company   at    its   home    office     the      report  such   statements  are,  by  the  terms  of  the 

which  it  was  their  duty  to  make,  must  be  bond,  made  a  part  thereof,  the  bond  and 

imputed  to  the   company.     Decree   (1903),  statements    together   form     the      contract, 

22  App.  D.  C.  368,  affirmed.     Armstrong  z:  and  on  the  construction  as  a  whole  depend 

Ashley,   204   U.    S.   272,   51    L.    Ed.   482,   27  the    rights    and    liabilities    of    the    parties. 

S.   Ct.  270.  Judgment,   Willoughby  v.    Fidelity   &   De- 

718-18a.     Instrument     construed      as     a  posit   Co.   of   Maryland  (1906),  85  P.  713,  16 

whole. — In  an  action  against  a  surety  com-  Okl.  546,  7  L.  R.  A.   (X.  S.)   548,  affirmed, 

pany    to    recover    on    the    bond    of    a    de-  Cherry  -■.  Fidelity,  etc.,  Co.,  205  U.  S.  537, 

faulting   bank   president,    where   the   bond  51  L.  Ed.  920,  27  S.  Ct.  790.     See  ante,  IN- 

is  issued  by  the  surety  company  and  ac-  TERPRETATIOX     AXD     CONSTRUC- 

cepted  by  the  bank  on  the  faith  of  certain  TIOX,   p.   688. 

1003 


722-725  PRINCIPAL  AND  SURETY.  Vol.  IX. 

F.  Liability  on  Contract — 1.  Measure  of  Surety's  Liability — b.  Lia- 
bility of  Surety  on  Bond. — As  to  liability  of  surety  on  working  contractor's 
bond,  see  post,  Working  Contracts. 

III.  Discharge  or  Release  of  Surety. 

C.  Alteration  of  Contract — 1.  General  Rule. — See  note  39. 

6.  Extension  of  Time  to  Principal. — See  post,  "Extension  of  Time  tO' 
Principal,"  III,  D,  2. 

D.  Acts  or  Omissions  of  Creditor  or  Obligee — 2.  Extension  of  Time 
TO  Principal— b.  Limitations  or  Modifications  of  Rule — (2)  Necessity  for 
Consideration. — See  note  50. 

(3)    Must  Be  zvithout  Sitrety's  Consent. — See  note  51. 
(5)    Agreement  Must  Be  for  Definite  Delay. — See  note  55. 

4.  Failure  to  Give  Notice  to  Surety  of  Default. — The  sureties  on  a 
bond  conditioned  on  the  payment  by  the  principals  of  the  purchase  price  of 
goods  four  months  after  sale,  which  contained  no  provision  as  to  notice,  are 
not  discharged  by  failure  to  give  notice  that  their  principals  had  not  made 
payment  as  required. ^*^^ 

5.  Neglect  to  Proceed  against  Principal. — ^Sureties  are  not  discharged 
by  the  mere  delay  in  enforcing  the  obligation   of  the  principals.'^''''' 

F.  Consent  by  Surety  to  Transactions  between  Creditor  and  Princi- 
pal.— AX'here  a  bond  is  conditio-ned  on  the  i)a}-ment  by  the  principals  of  the 
purchase  price  of  goods  four  months  after  sale,  in  the  absence  of  any  agree- 
ment with  the  surety  to  the  contrary,  the  law  imposes  no  restrictions  on  ar- 
rangements between  the  principals  and  the  obligees  that  may  aiTect  the  terms 
of  their  continuing  business/'''''' 

IV.  Rights  and  Remedies  of  Sureties. 

A.  As  against  Principal — 2.  Right  to  Reimbursement  and  Exonera- 
tion.— ;See  note  62. 

722-39.  Changes  in  plans  agreed  to  in  it  might  be  necessary  or  very  convenient 
writing  before  work  contemplated  by  such  to  extend  the  time,  and  expressly  pro- 
change  begun. — Provisions  in  a  contract  vrJed  for  a  per  diem  deduction  from  the 
for  a  public  work  requiring  that  changes  contract  price  for  a  delay  beyond  the  time 
in  the  plans  or  specifications,  deemed  de-  prescribed  for  the  completion  of  the 
sirable  by  the  government,  be  agreed  to  work.  United  States  v.  McMullen,  322  U. 
in  writing  by  the  parties  to  the  contract  S.  460,  56  L.  Ed.  269,  32  S.  Ct.  128. 
before  the  work  contemplated  by  such  725-55.  No  definite  time. — Clark  v. 
changes  is  begun,  do  not  require  the  as-  Gerstley,  26  App.  D.  C.  205,  judgment  af- 
sent  of  the  sureties  in  order  not  to  work  firmed  in  Claric  v.  Gerstley,  204  U.  S.  504, 
their  discharge.  United  States  v.  Mc-  51  L.  Ed.  589,  27  S.  Ct.  337. 
}^Iullen,  222  U.  S.  460,  56  L.  Ed.  269,  32  725-56a.  Failure  to  give  notice  to  surety 
S.  Ct.  128,  reversing  judgment  (1909)  Mc-  of  default.— Clark  v.  Gerstley,  26  App.  D. 
Mullen  V.  United  States,  167  F.  460,  93  C.  C.  205,  judgment  affirmed  in  Clark  f. 
C.   A.   96.  Gerstley,   204   U.   S.   504.   51    L.   Ed.   589,  37 

724-50.    Agreements   must  have   consid-  S.  Ct.  337. 

eraticn  to  support  it. — Clark  v.   Gerstley,  725-56b.     Neglect    to     proceed      against 

26  App.  D.  C.  205.     Judgment  affirmed  in  principals. — Clark  v.   Gerstley,  26   App.   D. 

Clark  V.  Gerstley,  204  U.  S.  504,  51  L.  Ed.  C.    205,    judgment    affirmed     in      Clark      v. 

589,   27   S.   Ct.   337.  Gerstley,  204  U.   S.   504,   51   L.   Ed.   589,   27 

724-51.     Where     contract     contemplates  S.   Ct.  337. 

extension   of   time. — The    sureties    on    th'^  725-59a.    Consent  by  surety  to  tran&ac- 

l)ond    of    public     contractor,      conditioned  tions    between    creditor     and      principal. — 

upon    the    faithful   performance   of   a   con-  McGuire    v.    Gersiley,    26   App.    D.    C.    193, 

tract    for    dredging    a    channel,    wet>e    not  judgment  affirmed  in  McGuire  v.  Gerstley, 

discharged    by   an    extension    of   the    time  204  U.   S.  489,  51    L.   Ed.  581. 

fixed    for   performance,    accorded    by    the  725-62.    Right  of  surety  on  appeal  bond 

government  to  the  contractor,  where  the  — Taking    security    from    judgment    cred- 

contract  definitely  contemplated,  what  the  itor. — The  surety  on  an  appeal  bond  may 

nature    of   the    work   made    manifest,    that  recover  from  its  principals  the  amount  of 

1004 


\'ol.  IX.  PRn\ATE    JVHARJ'ES.  727-733 

3.    Subrogation  to  Rights  of  Crewtor. — See  post,  Subrogation. 
V.    Actions  or  Suits  against  Principal  and  Surety. 

D.  Parties?. — In  a  suit  brought  by  the  surety  to  set  aside  a  judgment 
against   him   and   the    principal,   the   principal    is   a   necessary   party   plaintiit."-'"' 

H.  Judgment  or  Decree — 2.  Against  Surety. — Attacking  Judgment. 
— So  long  as  a  judgment  against  the  principal  stands,  a  judgment  against  the 
surety  can  not  be  impeached. '^*^* 

PRIORITIES. — See    references   under   Priorities,   vol.   9,   p.    728. 

PRISONS  AND  PRISONERS.— See  the  title  Prisons  and  Prisoners,  vol. 
9,  p.  729,  and  references  there  given. 

PRIVATE  CORPORATIONS.— See  ante.  Banks  and  Banking,  p.  184; 
Corporations.  ]).  381. 

PRIVATE  ENTRIES.— See  post,  Public  Lands. 

PRIVATE  LAND  CLAIMS.— See  post.  Public  Lands. 

PRIVATE  PROPERTY.— See  note   L 


PRIVATE  WAYS. 

CROSS   REFERENCES. 

See  the  title  Private  Ways.  vol.  9,  p.  733).  and  references  there  given. 
In  addition,  see  ante.  Easements,  p.  534. 

General  Consideration. — A  private  right  of  way  is  an  easement  and  is 
land,  and  may  be  acquired  by  the  United  States  as  an  incident  to  the  fee  upon 
payment  of  compensation.  The  value  of  the  easement  can  not  be  ascertained 
without  reference  to  the  dominant  estate  to  which  it  is  attached.  The  same 
reasoning  that  allows  a  recovery  for  the  taking  of  land  by  permanent  occupa- 
tion, allows  it  for  right  of  way  taken  in  the  same  manner.^'' 

PRIVATE  WHARVES.— See  post.  Wharfs  and  Wharfingers. 

the  judgment  which  it  paid  after  an  affirm-  execution    had    not    then    issued    on    the 

ance    on    the   appeal   to   a    territorial      su-  judgment,  and  the  governor  may  not  have 

preme  court,  although,  when  makin'g  such  had    the    power    to    carry    out    his    threat, 

payment,  it  took  from  the  judgment  cred-  United    States    Fidelit}^    etc.,    Co.    x'.    San- 

itor   a   bond   with   collateral   security   con-  doval.  22:^   U.   S.  227,  56  L.   Ed.  415,  32   S. 

ditioned    for    the    reimbursement    of    the  Ct.   298. 

money    so    paid    in     case      the      judgment  727-75a.     Principal     necessary     party. — 

should  be  reversed  on  a  proposed  further  Steele   :■.   Culver.   211    L".   S.   26,   53   L,.   Ed. 

appeal  to  the  federal  supreme  court,  since  74,  29   S.   Ct.   9. 

the  surety,  by  so  acting,  was  not  speculat-  728-86a.    Attacking  judgment. — Steele  z'. 

ing   out    of   its    principals,    but   was    bene-  Culver.   211    U.    S.   2(j.   53   L.   Ed.   74,   29   S. 

fiting  them  by  acquiring  security  to  which  Ct.   9. 

they  could  be  subrogated  in  case  of  a  re-  733-1.      Tribal    property. — "There    is    a 

versal    of    the    jud.gment.      United    States  broad   distinction   between  tribal  property 

Fidelity,   etc.,   Co.  v.   Sandoval,  223   U.    S.  and    private    property,    and     between    the 

227,   56   L.   Ed.  415,  32   S.   Ct.  298.  power  to   abrogate   a   statute   and   the   au- 

Payment   held   not   voluntary   or   negli-  thority   to   destroy   rights   acquired   under 

gent. — The    payment    of    the    judgment    in  such    law."     Choate    z'.  Trapp.    224    U.    S. 

good    faith    by    the    surety    on    an    appeal  665,  671,  56  L.  Ed.  941,  32  S.  Ct.  565.     See 

bond,  after  an  affirmance  on  the  appeal  to  ante,  COXSTITUTIOXAL  LAW,  p.  264; 

a  territorial  supreme   court,  and  after  re-  DUE   PROCESS   OF    LAW,   p.   475;    IX- 

ceiving  notice  from  the  governor  that  un-  DIAXS.  p.  641. 

less    the   judgment    were    paid    the    surety  733-4a.    United  States  t'.   \\'elch.   217  U. 

would   forfeit   its   right   to   do   business   in  S.   333,   54   L.    Ed.   787,   30   S.    Ct.   527.   fol- 

the    territory,    can    not    be    said    to    have  lowed   in  United   States  v.   Sewell,  217  U. 

been   made   voluntarily   or  negligently,   so  S.   601,   54   L.   Ed.   897,   30   S.   Ct.   091,   and 

as    to    defeat    the    surety's    right    to    reim-  United   States  7'.   Grizzard,   219   U.   S.   180, 

bursement    from    its    principals,    altliough  55   L.    T^d.   105,  31    S.   Ct.  162. 


736-742  PRIJ'ILEGED    COMMUXICATIONS.  Vol.  IX. 


PRIVILEGE. 

II.  Privilege  of  Persons  in  Public  Service,  1006. 

B.  Privilege  of  Members  of  Legislative  Bodies,   1006. 
1.  From  Arrest  and  Service  of  Process,  1006. 

a.  Origin  and  History  of  Privilege  in  England,  1006. 

b.  Privilege   of   Members   of   National   Congress,    1006. 

CROSS   REFERENCES. 

See  the  title  Privilege,  vol.  9,  p.  734,  and  references  there  given. 
In  addition,  see  ante.  Appeal  and  Error,  p.  34 ;  Coxstitutioxal  Law,  p. 
264;    post,  Witnesses. 

II.    Privilege  of  Persons  in  Public  Service. 

B.  Privilege  of  Members  of  Legislative  Bodies — 1.  From  Arrest  axd 
Service  of  Process — a.  Origin  and  History  of  Privilege  in  England. — See 
note  11. 

b.  Privilege  of  Members-  of  National  Congress. — All  criminal  offenses  are 
comprehended  by  the  terms  "treason,  felony,  and  breach  of  the  peace,"  as  used 
in  Const.  V.  S.  art.  1,  §  6,  cl.  1,  excepting  these  cases  from  the  operation  of 
the  privilege  from  arrest  therein  conferred  vipon  senators  and  representatives 
during  their  attendance  at  the  sessions  of  their  respective  houses,  and  in  going 
to  and  returnins:  from  the  same.^"^ 


PRIVILEGED  COMMUNICATIONS. 

I.  Confidential  Communications,   1006. 

F.  Statement  of  Principle  and  Reasons  Therefor,   1006. 

CROSS   REFERENCES. 

See  the  title  Privileged  Communications,  vol.  9,  p.  740,  and  references 
there  given. 

I.  Confidential  Communications. 

F.  Statement  of  Principle  and  Reasons  Therefor. — It  may  be  stated, 
as  a  general  principle,  that  public  policy  forbids  the  maintenance  of  any  suit 
in  a  court  of  justice,  the  trial  of  which  would  inevitably  lead  to  the  disclosure 
of  matters  which  the  law  itself  regards  as  confidential,  and  respecting  which  it 
will  not  allow  the  confidence  to  be  violated.  On  this  principle,  suits  can  not 
be  maintained  which  would  require  a  disclosure  of  the  confidences  of  the  con- 
fessional, or  those  between  husband  and  wife,  or  of  communications  by  a  client 
to  his  counsel  for  professional  advice,  or  of  a  patient  to  his  physician  for  a 
similar  purpose.  Much  greater  reason  exists  for  the  application  of  the  prin- 
ciple to  cases  of  contract  for  secret  services  with  the  government,  as  the  exist- 
ence of  a  contract  of  that  kind  is  itself  a  fact  not  to  be  disclosed.^^ 

736-11.    Origin  of  privilege  in  England.  U.   S.  42o,  52   L.   Ed.  278.  28  S.  Ct.  163. 

— Williamson   i\  United  States,  207   U.   S.  742-8a.    Statement  of  principle  and  rea- 

42.5,  52  L.  Ed.  278.  28  S.  Ct.  163.  son  therefor.— Totten  v.  United  States,  93 

736-17a.    Privilege  of  members   of  con-  U.  S.  105,  107,  23  L.  Ed.  605. 
gress. — Williamson   z\    United   States,   207 

1006 


Vol.  IX.  PROBATE  OF  WILLS.  733-758 

PRIVILEGES  AND  IMMUNITIES.— See  ante,  Citizenship,  p.  235;  Civil. 

Rights,   p.   236;   Coxstitutioxal  Law,   p.   264;   Impairmext  of  Obligatiox 
OF  COXTRACTS,   p.   624. 

PRIVY— PRIVITY.— See  note  7. 


PRIZE. 

IV.  Capture  and  Condemnation  or  Restoration,  1007. 

F.  \'essels  and  Property  Subject  to  Capture  and  Condemnation.  1007. 
2.  Enemies"  Vessels  and  Property.   1007. 

h.  Exemptions   from  Capture  and   Condemnation,    1007. 

(3)  Articles  of  Capitulation.  1007. 

(4)  Proclamation  of  President  of  United  States  or  of  Com- 

manding Officer,   1007. 

CROSS   REFERENCES. 

See  the  title  Prize,  vol.  9,  p.  744,  and  references  there  given. 
In   addition,   see,   as   to    captures   on   land,   post.    War.      As   to   seizures    for 
breach  of  the  revenue  laws,  see  post,  Rex'exue  Laws. 

IV.  Capture   and   Condemnation   or  Restoration. 
F.    Vessels    and   Proj)erty    Subject   to    Capture  and    Condemnation — 

2.  Enemies'  A'essels  axd  Property — h.  Exemptions  from  Capture  and  Con- 
demnation—  (3)  Articles  of  Capitulation. — The  capitulation  of  Santiago  and 
the  cessation  of  active  military  operations  in  the  Santiago  district  did  not 
change  the  character  of  a  Spanish  merchant  vessel  lying  in  the  harbor  as  en- 
emies property,  nor  exempt  it  from  liability  to  capture  by  the  military  author- 
ities for  military  purposes." ^^ 

(4)    Proclamation  of  President  of  United  States  or  of  Commanding  Officer^ 
— See  note  77.    . 

PROBABLE    CAUSE. — See   ante,   Malicious   Prosecutiox.   p.   837. 
PROBATE. — See  ante.  Executors  axd  Admixistrators,  p.   564. 
PROBATE  COURT.— See  ante,  Courts,  p.  398. 
PROBATE  OF  WILLS.— See  post.  Wills. 

733-7.        Estoppel      of      judgment. — See  owner  of  the  vessel  of  "privity  or  knowl- 

post,  RES  ADJUDICATA.  edge,"    within    the     meaning    of    Revised 

In    Bigelow    v.   Old    Dominion    Copper  Statutes.  §  4283,  according  to  shipowners 

Min.,    etc.,  Co..    225  U.    S.  Ill,  128,  56    L.  a    limited    exemption    from    liability.      La 

Ed.    1009,    32  S.    Ct.    641,  the    court    said:  Bourgogne,  210  U.  S.  95,  52  L.  Ed.  973,  28 

"What  is. privity?     As  used  when  dealing  S.    Ct.    664.      See    ante,    COLLISION,    p. 

with   the   estoppel  of  a  judgment,  privity  243:  post,  SHIPS  AXD  _SH  IPPIXG. 

denotes  mutual  or  successive  relationship  758-76a.    Effect  of  capitulation  and  ces- 

to  the  same  right  of  property.     Litchfield  sation   of    active     military     operations. — 

V.  Goodnow,  123  U.  S.  549,  31  L.  Ed.  199,  Hcrrera  r.  United  States,  222  U.  S.  558. 
8  S  Ct.  203.  The  ground  upon  which  56  L.  Ed.  316.  32  S.  Ct.  179;  Diaz  z:  United 
privies  are  bound  by  a  judgment.  States,  222  U.  S.  574,  56  L.  Ed.  321,  32  S. 
says    Prof.    Greenleaf,   in    his  work    upon  Ct.  184. 

Evidence,     13th    ed.,    vol.     1.    §    523.     'is,  758-77.    The  president's  proclamation  of 

that  they  are  identified  with  him  in  inter-  July  13,  1898,  with  reference  to  the  rights 

est;    and   wherever   this   identity   is   found  of   private    property,    did    not    change    the 

to  exist,   all  are   alike   concluded.     Hence,  character    of    a    Spanish    merchant    vessel 

all  privies,  whether  in  estate,  in  blood,  or  lying  in  the  harbor  of  Santiago,  as  enemy's 

in   law,   are   estopped   from   litigating   that  property,   nor  exempt   it   from   liability  to 

which  is  conclusive  upon  him  with  whom  capture    by    the    military    authorities    for 

they  are  in  privity.'  "  military     purposes.      Herrera     v.      United 

Privity     or      knov^ledge.— Mere     negli-  States.  222  U.  S.  558,  56  L.  Ed.  316.  32  S. 

gence.    of  itself,    does    not    necessarily   es-  Ct.  179;   Diaz  f.   United  States.  222   U.   S. 

Tablish    the   existence    on    the   part    of   the  574,  56  L.  Ed.  321,  32  §.  Ct.  184. 

1007 


786-789  PRODUCTION  OF  DOCUMENTS.  Vol.  IX. 

PROBATE  PROCEEDINGS. — See  ante,  Executors  and  Administrators, 
p.  564. 

PROCEEDINGS  IN  REM  AND  IN  PERSONAM.— See  note  1. 

PROCESS.— See  ante.  Apparatus,  p.  Z2>\  Machine,  p.  837;  Patents,  p. 
936. 

PROCESS  OF  LAW.— See  note  3. 

PRO  CONFESSO. — See  ante;  Judgments  and  Decrees,  p.  807. 

PRODUCTION  OF  DOCUMENTS. 

I.  Definition  and  Nature  of  Subpoena  Duces  Tecum,  1008. 
II.  Power  to  Compel  Production,   1008. 
xA..  Power  of  Federal  Courts,  1008. 
1.  In  General,  1008. 

IV.  Who  May  Be  Compelled  to  Produce,   1009. 

D.  AA'itnesses,  1009. 

VI.  Effect  of  Failure  to  Produce  Documents  after  Notice,   1009. 

Cy..  Contempt  of  Court.  1009. 

D.  Presumptions  in  Case  of  Failure  to  Produce,  1009. 

VIII.  Mode  of  Compelling  Production,   1009. 

CROSS   REFERENCES. 

See  the  title  Production  of  Documents,  vol.  9,  p.  788,  and  references  there 
given. 

In  addition,  see  ante.  Constitutional  Lav^,  p.  264 ;  Discovery,  p.  465 ; 
Due  Process  of  Law,  p.  475;    Searches  and  Seizures. 

I.  Definition  and  Nature  of  Subpoena  Duces  Tecum. 

A  subpoena  duces  tecum  is  not  invalid  because  it  contains  no  ad  testificandum 
clause,  but  simply  directs  a  corporation,  wdiich  could  not  give  oral  testimony, 
to  produce  books.''^  And  even  though  the  subpoena  contains  the  usual  ad  tes- 
tificandum clause,  it  is  not  necessary  for  the  party  requiring  the  production  to 
have  the  person  producing  the  documents  sworn  as  a  witness.'^'' 

II.  Power  to  Compel  Production. 
A.  Power  of  Federal  Courts — 1.  In  General. — See  notes  4.  5.     The  pur- 

786-1.     Proceedings    for    registration. — ■  28  L.   Ed.  232."     Twining  i'.   New  Jersey, 

In   Carino  v.   Insular   Government.  212   U.  211  U.  S.  78,  101,  53  L.  Ed.  97,  29  S.  Ct.  14. 

S.    449,  456,    53   L.    Ed.  594,    29  S.  Ct.    334,  See   ante.    DUE    PROCESS    OF    LAW.   p. 

the  court  said:    "The  proceeding   for  reg-  475. 

istration    is   likened   to   bills   in   equity   to  789-3a.    Ad  testificandum  clause  not  es- 

quiet  title,   but  it  is   different  in  principle.  sential. — Wilson   7'.   United   States,   221   U. 

It  is  a  proceeding  in  rem  under  a  statute  S.  3G!.  55  L.  Ed.  777,  31  S.  Ct.  538. 

of  the  type   of  the  Torrens  Act,  such   as  789-3b.     Not   necessary   to   have   person 

was  discussed  in  Tyler  v.   Court  of  Reg-  producing  documents  sworn  as  a  witness, 

istration,     175     Massachusetts     71.       It    is  — -Wilson  v.  United   States,  221  U.   S.  361, 

nearer  to  law  than  to  equity,  and  is  an  as-  55  L-   Ed.  777,  31   S.  Ct.  538. 

sertion  of  legal  title;  but  we  think  it  un-  789-4.    Power  of  federal  courts  to  com- 

necessary    to    nut    it     into    either    pioeon  pel   production   of  documents. — Carpenter 

hole."      See   post,    QUIETING   TITLE.  v.   Winn,   221   U.   S.   533,  55   L.   Ed.   842,  31 

786-3.     Process  of  law. — "'A  process  of  S.    Ct.    683,    reversing   165    Fed.    Rep.    636, 

law."     said     ]Mr.    Justice     Matthews,    com-  91   C.  C.  A.  301. 

mcnting  on  this  statement  of  Mr.  Justice  789-5.    Production  can  be  required  only 

Curtis,  'which  is  not  otherwise  forbidden,  where  chancery  would  grant  discovery. — 

must   be  taken  to  be   due  process  of  law,  Carpenter  v.   Winn,   221   U.    S.   533,   55   L. 

if  it  can  show  the  sanction  of  settled  us-  Ed.  842,  31  S.   Ct.  683,  reversing  165   Fed. 

age    both   in    England  and    this    country.'  Rep.    636,    91    C.    C.    A.    301. 
Hurtado  v.  California,  110  U.  S.  516,  528, 

1008 


Vol.  IX. 


PRODUCTIOX  OF  DOCUMEXTS. 


789-792 


pose  of  §  15  of  the  Judiciary  Act  of  1789,  which  is  substantially  reproduced  in 
§  724  of  the  Revised  Statutes,  is  to  provide  a  substitute  for  a  bill  of  discovery 
in  aid  of  a  legal  action.*^^  It  may  be  invoked  only  when  the  document  sought 
"contains  evidence  pertinent  to  the  issue. "*^^''''  Under  it  a  court  of  law  is  not 
empowered  to  compel  one  party  to  an  action  to  produce  books  and  papers  in 
advance  of  trial  for  his  adversary's  examination  and  inspection.*^'^  An  author- 
ity to  issue  subpoenas  duces  tecum  was  comprehended  in  the  power  conferred 
upon  the  federal  courts  by  the  Act  of  September  24,  1789, ^'^^  to  issue  all  writs 
not  specially  provided  for  by  statute  which  may  be  necessary  for  the  exercise 
of  their  respective  jurisdictions,  and  agreeable  to  the  practice  and  usages  of 
law.i"" 

IV.  Who  May  Be  Compelled  to  Produce. 

D.  Witnesses. — \\here  a  witness  is  required  to  produce  documentary  evi- 
dence, it  is  his  duty  to  produce  what  is  called  for,  if  it  is  in  his  possession  or 
control. ^'^^ 

VI.  Effect  of  Failure  to  Produce  Documents  after  Notice. 

C|.  Contempt  of  Court. — The  officer  of  a  corporation  having  in  his  pos- 
session the  books  of  the  corporation,  described  in  a  subpoena  duces  tecum  di- 
rected to  the  corporation,  must  produce  the  books  or  be  held  in  contempt.^'^^ 

D.  Presumptions  in  Case  of  Failure  to  Produce. — See  post.  Ships  axd 
Shippixg. 

VIII.  Mode  of  Compelling  Production. 

Under  the  federal  statutes  a  subpoena  duces  tecum  may  issue  to  compel  a 
party  to  the  action  to  produce  books  or  writings. i'^'' 


789-6a.  Substitute  for  a  bill  of  discov- 
ery.— Carpenter  v.  Winn,  221  U.  S.  533,  55 
L.  Ed.  842.  31  S.  Ct.  683,  reversing  165 
Fed.  Rep.  636.  91  C.  C.  A.  301.  See.  also, 
ante,    DISCOVERY,    p.    465. 

789-6b.  Production  required  only  when 
document  contains  evidence  pertinent  to 
issue. — Carpenter  v.  Winn,  221  U.  S.  533, 
55  L.  Ed.  842,  31  S.  Ct.  683,  reversing  165 
Fed.    Rep.    636,    91    C.    C.    A.   301. 

789-6C.  A  party  can  not  be  compelled 
to  produce  documents  in  advance  of  trial. 
— CarT^enter  z\  \\'inn.  221  V.  S.  ."33.  55  L. 
Ed.  842,  31  S.  Ct.  683,  reversing  165  Fed. 
Rep.   636,   91   C.   C.  A.   301. 

790-lOa.  1  Stat,  at  L.  81,  chap.  20,  §  14, 
U.  S.  Rev.  Stat.,  §  713,  U.  S.  Coinp.  Slat. 
1901.  p.  580. 

790-lOb.  Authority  to  issue  subpoenas 
duces  tecum. — American  Lithographic  Co. 
z:  Werckmeister,  221  U.  S.  603,  55  L.  Ed. 
873,  31  S.  Ct.  676,  affirming  165  Fed.  Rep. 
426.   91    C.   C.   A.   376. 

791-13a.  Witnesses. — Consolidated  Ren- 
dering Co.  i:  Vermont.  207  U.  S.  541.  52 
L.    Ed.    327.    28    S.    Ct.    178. 

792-19a.  Failure  to  produce  books  is 
contempt  of  court. — Wilson  z-.  United 
States  221  U.  ?.  361.  55  L.  Ed.  771,  31 
S.  Ct.  538.  See  ante.  COXTE^IPT.  p. 
367. 

Objections  not  available  to  corporation 
fined  for  contempt. — The  o1)jcction  that 
incriminating  books  and  papers  were  re- 
quired to  be  produced  before  a  grand 
jury  under  Act  Vt.  Oct.  9.  1906.  p.  79.  Xo. 

12  U  S  Enc— 04  1009 


75,  without  extending  immunity  from 
criminal  prosecution,  is  not  available  to 
a  corporation  winch  has  been  fined  for 
contempt  in  failing  and  absolutely  refus- 
ing to  produce  any  of  the  books  and  pa- 
pers called  for,  with  some  unimportant 
exceptions,  and  has  thus  prevented  the 
court  from  inquiring  into  the  validity  of 
the  objection.  Judgment,  In  re  Consoli- 
dated Rendering  Co.  (Vt.  1907),  66  A. 
790,  affirmed.  Consolidated  Rendering 
Co.  z:  Vermont,  207  U.  S.  541.  52  U  Ed. 
327,   28    S.   Ct.    178. 

A  corporation  which,  with  unimportant 
exceptions,  refuses  to  produce  certain 
books  and  papers  before  a  grand  jury,  in 
compliance  with  the  Vermont  Act  of  Oc- 
tober 9,  1906,  can  not  urge  the  sweeping 
character  of  the  notice  to  produce  to  in- 
validate the  order  adjudging  the  corpora- 
tion guilty  of  a  contempt.  Consolidated 
Rendering  Co.  z:  Vermont,  207  U.  S.  541, 
52  L.   Ed.  327,  28   S.   Ct.   178. 

792-19b.  Mode  of  compelling  produc- 
tion.— Compulsory  production  of  the 
hooks  of  a  corporate  defendant  under  a 
subpoena  duces  tecum  served  upon  an  of- 
ficer of  the  corporation  in  an  action  to 
recover  the  penalties  prescribed  by  Rev. 
St.,  §  4965  (U.  S.  Comp.  St.  1901.  p.  3414) 
for  printing  and  selling  copies  of  a  copy- 
righted painting,  did  not,  after  the  change 
of  the  rule  as  to  the  incompetency  of  par- 
ties as  witnesses,  made  by  section  858 
(page  659),  violate  any  of  the  rights  of 
the    corporation    under    §    724    (page    583) 


797-814 


PRO  PI  ED  AD. 


Vol.  IX. 


PROFERT  AND  OYER. — See  the  title  Profert  and  Oyer,  vol.  9,  p. 
and  references  there  given. 
PROFITS.— See  note  1. 


793, 


PROHIBITION. 

III.  When  Writ  Lies,  1010. 

A.  Discretion   of   Court,    1010. 

C.  Want  or  Excess  of  Jurisdiction.  1010. 

1.  In  General,  1010. 

D.  As  Dependent  upon  Existence  of  Other  Remedies,  1010. 

1.  Where  Other  Remedies  Exist,   1010. 
a.  In   General,   1010. 

CROSS   REFERENCES. 

See  the  title  Prohibition,  vol.  9,  p.  798,  and  references  there  given. 

III.  When  Writ  Lies. 

A.    Discretion  of  Court. — See  note  9. 

C.  Want  or  Excess  of  Jurisdiction — 1.    In  General. — See  note  16. 

D.  As    Dependent    upon    Existence    of    Other    Remedies — 1.    \\  here 
Other  Remedies  Exist — a.    In   General. — See   note   22. 

PROMISSORY  NOTES.— See  ante,  Bills,  Notes  and  Checks,  p.  204. 
PROPIEDAD.— See  note  4a. 


providing-  for  the  production  on  notice 
and  motion  ol  a  party's  books  and  papers, 
since  this  section  can  not  be  regarded  as 
providing  an  exclusive  procedure.  Ameri- 
can Lithographic  Co.  v.  Werckmeister, 
221  U.   S.  G03,  55  L.  Ed.  873,  31  S.  Ct.  676. 

Requisites  of  subpcena  duces  tecum. — 
As  to  the  requisites  and  sufficiency  of  a 
subpoena  duces  tecum,  see  ante,  "Defini- 
tion and  Nature  of  Subpoena  Duces 
Tecum,"   I. 

797-1.  Profits  realized. — A  contractor 
for  the  construction  of  a  public  w^ork 
realizes  a  profit  "under  said  contract 
v^'ith  the  United  States,"  within  the  mean- 
ing of  an  agreement  to  repay,  in  the  con- 
tingency of  such  profit,  certain  moneys 
advanced,  where  the  contractor,  without 
himself  doing  the  work,  made  a  profit 
out  of  his  arrangement  with  a  subcon- 
tractor, although  the  work  was  actually 
constructed  at  a  heavy  loss.  Sand  Filtra- 
tion Corp.  V.  Cowardin,  213  U.  S.  360,  53 
L.  Ed.  833,  29  S.  Ct.  509.  See  post, 
UNITED  STATES. 

800-9.  When  discretionary. — Ex  parte 
Oklahoma,  220  U.  S.  191,  55  L.  Ed.  431, 
31  S.  Ct.  426;  Ex  parte  Oklahoma,  No. 
2,  220  U.  S.  210,  55  L.  Ed.  436,  31  S.  Ct. 
431.. 

When  matter  of  right. — Ex  parte  Okla- 
homa, 220  U.  S.  191,  55  L.  Ed.  431,  31  S. 
Ct.  426;  Ex  parte  Oklahoma,  No.  2,  220 
U.   S.   210,   55   L.   Ed.   436,   31    S.   Ct.   431. 

802-16.  Want  of  excess  of  jurisdiction 
— In    general. — Ex    parte    Oklahoma,    220 


U.  S.  191.  55  L.  Ed.  431,  31  S.  Ct.  426; 
Ex  parte  Oklahoma,  No.  2,  220  U.  S.  210, 
55  L.  Ed.  436,  31   S.  Ct.  431. 

804-22.  Where  other  remedies  exist  in 
general. — Ex  parte  Oklahoma.  220  U.  S. 
191,  55  L.  Ed.  431,  31  S.  Ct.  426;  Ex  parte 
Oklahoma,  No.  2,  220  U.  S.  210,  55  L.  Ed. 
436,  31  S.  Ct.  431. 

Prohibition  against  proceedings  in  tl:e 
federal  circuit  court  to  enjoin  the  prose- 
cution of  search  and  seizure  proceedings 
instituted  in  the  state  courts,  under  Sess. 
Laws  Okl.  1907-08,  c.  69,  against  intoxi- 
cating liquors  shipped  into  the  state,  will 
not  be  granted  by  the  federal  supreme 
court,  since  adequate  relief  is  afforded  by 
the  full  right  of  review  in  the  latter  court 
and  in  the  proper  circuit  court  of  appeals 
bv  appeal  of  certiorari.  Ex  parte  Okla- 
homa, 220  U.  S.  191,  55  L.  Ed.  431,  31  S. 
Ct.  426;  Ex  parte  Oklahoma,  No.  2,  220  U. 
S.  210.  55  L.  Ed.  436,  31  S.  Ct.  431. 

814-4a.  Propiedad. — "The  eighth  arti- 
cle of  the  Treaty  of  Paris  declares  that 
the  cession  of  sovereigntj'  'can  not  in  any 
respect  impair  the  property  rights  which 
by  law  belong  to  the  peaceful  possession 
of  property  of  all  kinds,'  etc.,  but  that 
stipulation  does  not  relate  to  the  rights 
connected  with  trades  and  professions. 
The  word  propiedad  used  in  the  Spanish 
text  is  defined  by  Escriche  as  the  right 
to  enjoy  and  dispose  freely  of  one's  things 
in  so  far  as  the  laws  do  not  prohibit  it. 
4  Escriche  736.  The  same  word  appears 
in     Article    IX,    providing    that     Spanish 


1010 


Vol.  IX. 


PUBLIC  IMPROVEMENTS. 


815-817 


PROPRIETOR. — As  to  proprietor  as  used  in  copyright  law,  see  ante,  Copy- 
right, p.  Z77.     See,  also,  ante,  Assigns,  p.  154. 

PROSECUTE— PROSECUTION.— See   note   2 

PROSTITUTION.— See  note  3a. 

PROTEST. — See  ante,   Bills,   Xotks  and  Checks,  p.  204. 

PROVABLE  CLAIMS  AND  DEBTS.— See  ante.  Bankruptcy,  p.  168. 

PROVINCE  OF  COURT  AND  JURY.— See  post,  Questions  of  Law  and 
Fact. 

PROVING  A  WILL.— See  post.  Wills. 

PROVISIONAL    COURTS.— See  ante,   Military  Law,  p.  862. 

PROXIMATE   CAUSE.— See  ante.   Negligence,  p.  920. 

PUBLICATION.— See    note    1. 

PUBLICATION  OF  LIBEL.— See  ante.  Libel  and  Slander,  p.  824. 

PUBLIC  DOCUMENTS. — As  to  term  as  used  in  provision  against  self- 
incrimination,  see  ante.  Constitutional  Law,  p.  264. 

PUBLIC  DOMAIN.— See  post,  Public  Lands. 

PUBLIC  HEALTH.— See  ante.   Health,  p.  617. 

PUBLIC   IMPROVEMENTS.— See  post.   Special  Assessments. 


subjects  nia}^  retain,  whether  they  remain 
or  remove  from  the  territory,  "all  their 
rights  of  property,  including  the  right  to 
sell  or  dispose  of  such  property  or  of  its 
proceeds."  Clearly  the  right  to  practice 
law  was  not  referred  to  as  'property' 
there,  and  they  are  followed  b}"-  the  words 
"and  they  shall  also  have  the  right  to 
carry  on  their  industry,  commerce  and 
professions,  being  subject  in  respect 
thereof  to  such  laws  as  are  applicable  to 
other  foreigners.' "  Bosque  v.  United 
States.  209  U.  S.  91,  100,  52  L.  Ed.  698,  28 
S.  Ct.  501.     See  post,  TREATIES. 

815-2.  Prosecution  of  offenses  under 
Hepburn  Act. — The  exception  from  the 
operation  of  the  provision  repealing  con- 
flicting laws,  which  is  made  by  the  Hep- 
burn Act  of  June  29.  1906  (34  Stat,  at  L. 
584,  chap.  3591,  U.  S.  Comp.  Stat.  Supp. 
1907,  p.  892),  §  10,  in  favor  of  causes 
pending  in  the  federal  courts,  which 
■'shall  be  prosecuted  to  conclusion  in  the 
manner  heretofore  provided  by  law,"  was 
addressed  solely  to  the  procedure  to  be 
followed  in  pending  cases,  and  such  sec- 
tion, therefore,  does  not  supersede  the 
general  provision  of  U.  S.  Rev.  Stat.,  §  13, 
saving  existing  forfeitures,  penalties,  or 
liabilities  from  repeal,  so  as  to  prevent 
future  criminal  prosecutions  for  offenses 
against  the  Elkins  Act  of  Feb.  19,  1903 
(32  Stat,  at  L.  847,  chap.  708,  U.  S.  Comp. 
Stat.  Supp.  1907,  p.  880),  committed  prior 
to  the  adoption  of  the  later  statute. 
Great  Northern  R.  Co.  v.  United  States, 
208  U.  S.  452.  52  L.  Ed.  577,  28  S.  Ct.  313. 
See  ante.  INTERSTATE  AND  FOR- 
EIGN C0M:^IERCE.  p.  689. 

815-3a.  Prostitution  is  the  act  of  per- 
mitting illicit  intercourse  for  hire — an 
indiscriminate  intercourse,  or  what  is 
deemed  puljlic  prostitution.      ( C.   C.   1907) 


United  States  v.  Bitty.  155  F.  938,  judg- 
ment reversed  in  United  States  v.  P>itTv. 
208  U.  S.  393,  52  L.  Ed.  543,  28  S.  Ct.  396, 
on  another  point. 

Any  prostitution. — In  the  Act  of  Feb. 
20,  lyOi,  prohibiting  importation  of  alien 
women  "for  the  purpose  of  prostitution, 
or  for  any  other  imm.oral  purpose,"  there 
can  be  no  doubt  as  to  what  class  was 
aimed  at  by  the  clause  forbidding  the 
importation  of  alien  women  for  purposes 
of  prostitution.  It  refers  to  women  who 
for  hire  or  without  hire  offer  their  bodies 
to  indiscriminate  intercourse  with  men. 
The  lives  and  examples  of  such  persons 
are  in  hostility  to  ''the  idea  of  the  family, 
as  consisting  in  and  springing  from  the 
union  for  life  of  one  man  and  one  woman 
in  the  holy  estate  of  matrimony;  the  sure 
foundation  of  all  that  is  stable  and  noble 
in  our  civilization;  the  best  guaranty  of 
that  reverent  morality  which  is  the  source 
of  all  beneficent  progress  in  social  and 
political  improvement."'  Congress  no 
doubt  proceeded  on  the  ground  that  con- 
tact with  society  on  the  part  of  alien 
women  leading  such  lives  would  be  hurt- 
ful to  the  cause  of  sound  private  and  pub- 
lic morality  and  to  the  general  well-being 
of  the  people.  Therefore  the  importa- 
tion of  alien  women  for  purposes  of 
prostitution  was  forbidden  and  made  a 
crime  against  the  United  States.  United 
States  V.  Bitty,  208  U.  S.  393,  398,  52  L. 
Ed.  543,  28  S.  Ct.  396.  See  ante,  ALIENS, 
p.  18. 

817-1.  Publication  of  paintings  and  stat- 
utes, within  meaning  of  copyright  laws. 
— See  American  Tobacco  Co.  v.  W'erck- 
meistcr,  207  U.  S.  284,  52  L.  Ed.  208.  28 
S.  Ct.  72.  See,  also,  ante.  COPYRIGHT, 
p.  377. 


1011 


PUBLIC  LANDS.  Vol.  X. 


PUBLIC  LANDS. 

I.  Definitions,   Nature  and  General  Consideration,   1015. 
A.  Definitions   and   ^Meaning  of   Terms,   1015. 

II.  Acquisition,  Control  and  Disposal,  1015. 

A.  By  the  States,   1015. 

2.  Disposal,  1015. 

i.  Patent  or  Grant,   1015. 

(7)   Contest.    Cancellation    or    Impeachment,    1015. 

B.  By  United  States  Government,   1015. 

2.  Control,  1015. 

a.  In  General,  1015. 

c.  Cutting  and  Removing  Timber,   1015. 

(1)   Right  to  Cut  and  Remove,  1015. 

(a)  In  General,  1015. 

e.  Regulation  of  Pasturage,  1016.  , 

3.  Disposal.  1016. 

a.  Power  of  Disposal  and  Laws  Controlling.  1016. 

(1)  General  Statement,  1016. 

b.  Lands  Subject  to  Entry  and  Sale,  1016. 

(4)  Land   Previouslv   Granted,   Appropriated   or   Reserved, 

1016. 

(b)  Land  to  Which  Inchoate  Rights  Attached,  1016. 
bb.  Lands  Entered  by  Record,  1016. 

faa)   Prior  to  Cancellation  or  Forfeiture,  1016. 

(c)  Lands   Granted   to  Railroad,   1016. 
(6)   Indian   Lands.    1016. 

d.  Regular  Disposition  to  Private  Individuals,   1016. 

(2)  Right  to  Acquire  and  IMethods  of  Disposal,   1016. 

(d)  Pre-Emptibn,   1016. 

ee.  Amount   and  Location,    1016. 
ff.  Procedure  to   Obtain  Title,    1017. 

(bb)    Settlement,     Occupancy     and     Improve- 
ment, 1017. 
aaa.  In   General,    1017. 
ccc.  \\'hat    Constitutes    a    Sufficient    Set- 
tlement,   1017. 
(aaa)   In    General,    1017. 

(e)  Homestead.  1017. 

ff.  Procedure  to  Obtain,   1017. 
(bb)   Residence,   1017. 

(f )  Desert  Land,   Timber   and    Stone   Land   and   Tim- 

ber Culture,  1017. 
bb.  Timber  and   Stone  Land  and  Timber  Culture, 
1017. 

(g)  Town  Site,  1019. 

dd.  Rights  of  Occupants — Statement  of  Claim  and 
Payment  of   Price,   1019. 
(a)   Right  and  Title  under  Entrv,   1019. 

(5)  Right    and    Title   to    Public    Land,    1019. 
(c)    Prior  to  Issuance  of  Patent.   1019. 

cc.  Title  and  Rights  Acquired  Prior  to  Fulfillment 
of   Conditions,   1019. 

1012 


\'ol.  X.  PUBLIC  LAXDS. 

(bb)   Rights    as    against    Third    Parties,    1019. 
(9)   Remedies.  1020. 

(b)  Before  the  Courts.   1020. 

cc.  Recovery  of  Money  Paid.   1020. 
(dd)   Recovery  of  Excess.   1020. 
f.  Grants  in  Aid  of  Railroads,  1020. 

(2)  Grants  in   Aid  of   Construction,   1020. 

(c)  A'esting  of  Title,  1020. 

aa.  In   General— Grants    in   Prassenti.    1020. 
(aa)   Original    Grant.    1020. 
(j)   Lands  Included,   1020. 

aa.  General    Statement,    1020. 

cc.  Particular  Lands  Excluded.  1022. 

(aa)   Lands  Included  in  Prior  Railroad  Grant, 
1022. 
ddd.  Railroad   Grant    Forfeited.    1022. 
(bb)  Reserved   Swamp  Lands,  1022. 
(ff)   Indian   Land,    1022. 

(hh)   Land     Claims     Arising     under     General 
Land  Laws,   1023. 
bbb.  Sufficiency   and    \^aliditv    of     Claim, 

1023. 
ccc.  Effect     of     Liability    to     Subsequent 
Cancellation.    1023. 
(m)   Indemnity  Lands,  1023. 
aa.  In  General,   1023. 

bb.  A'esting  of  Title — Selection  and  Approval.  1023. 
cc.  Land  Subject  and  Amount.   1024. 

(bb)  Lands   Subject.    1024. 
dd.  Withdrawal    of   Indemnity   Lands.    1024. 
(n)   Conflicting  Grants  and  Claims.   1025. 

bb.  Railroad   Grants   Conflicting  with   Private   En- 
tries. 1025. 
(r)   Rights      of      Purchasers      under     Railroad     Land 
Grants.   1025. 
bb.  Recoverv  of   Purchase    Price    from    Railroad, 
1025.' 

(3)  Grant  for  Right  of  Way.  Station  Purposes,  etc.,  1025. 
/  (c)   Lands   Subject   and   Location  of  Line,   1025. 

aa.  Lands   Subject,   1025. 

(bb)   Land   Subject  to   Existing  Claims.   1025. 

(d)  Vesting  of  Title  and  Estate  Acquired,   1026. 
aa.  Vesting  of  Title,   1026. 

(h)   Forfeiture,  Abandonment  and  Repeal,   1026. 
(i)    Conflicting  Claims  and  Superiority,   1026. 
h.  School   and  L'niversity  Grants  and   Reservations.   1027. 
(3)   Lands  Included  and  Subiect  to  Selection,  1027. 
(c)   Mineral  Lands.   1027. 
(11)   Sale  and  Lease  of  School  Land.  1027. 
Cc)  Disposition  of  Proceeds.  1027. 

(e)  Right  to  Purchase — Purpose  of  Purchase.   1027. 
i.  Swamp  and  Overflowed  Land  Grants.   1027. 

(5)    Identification.    Survev  and   Selection.    1027. 
(a)   Identification.   1027. 

bb.  By    Whom    Made   and    Sufficiency   of.    1027. 

101.3 


PUBLIC  LANDS.  Vol.  X. 

k.  Oregon  Donation  Acts,   1027. 
p.  Reservations,  1028. 

(3)    Forest   Reserves,    1028. 
q.    Grants    for   Parks,    1028. 

4.  The  Land  Department,   1028. 

c.  Land  Department  Subject  to  Will  of  Congress,   1028. 
h.    Review,    Cancellation    and    Correction    in    Land    Department, 
1028. 

(3)  Review  of  Decision  of  Predecessor,  1028. 

i.  Operation  and  Effect  of  Decisions  of  Land  Department,  1028. 
(1)   Conclusiveness — Direct  and  Collateral  Attack,  1028. 
(b)   Questions  Concluded  or  Reviewable,   1028. 
bb.  Construction  of  Law,  1028. 
cc.  Decisions  upon  Questions  of  Fact,  1029. 
dd.  Mixed  Question  of  Law  and  Fact,  1029. 
(d)  Direct  Attack,  1029. 

bb.  At  Law  or  in  Equity,  1029. 
cc.  Suits  by  Government,   1030. 
(ii)   Pleading,  1030. 

aaa.  Sufficiency     and     Certainty     of     Al- 
legations,  1030. 
(jj)   Defenses,   1030. 

bbb.  Laches  and  Limitations,  1030. 
(kk)    Evidence,   1030. 

bbb.   Admissibility,   1030. 
ccc.  Weight  and  Sufficiency,  1030. 
dd.   Suits  by  Private  Individuals,   1031. 
(bb)    Proper  Relief,   1031. 

aaa.   Establishing  of   Trust,   1031. 
(cc)   Rights  of    Parties  and  Grounds   for  Re- 
lief,  1031. 
aaa.  Interest  of  Complainant,  1031. 
bbb.  Grounds  for  Relief,   1031. 

(ccc)   Fraud    and    False    Testimonv, 
1031. 
aaaa.  In  General,  1031. 

5.  Jurisdiction  of  and  Review  by  Courts,  1031. 

a.  Before  Patent  Issued,  1031. 

III.  Grants  or  Claims  Emanating  from  or  Arising  under  Former   Sov- 
ereign,  1032. 
C.  Spanish,  French  and  Mexican  Grants,  1032. 

2.  Acquisition  of  Right  and  Title  under  Former  Sovereigns,  1032. 

c.  Authority  to  Make  and  Manner  of  Making,  1032. 

(1)  Laws  Controhing,   1032. 
(a)   In  General,  1032. 

(4)  Power  of  States  and  Territories,  1032. 

d.  Construction,  Operation  and  Effect,  1032. 

(2)  Conditions,  1032. 

(f)   Effect  of  Noncompliance,   1032. 

3.  Recognition,  Validation  and  Confirmation,   1033. 

a.  In  General,  1033. 

c.  Legislative  Confirmation  and  Completion  of  Claims,  1033. 
(1)   Necessity  for  Confirmation  and  Ascertainment,  1033. 
(a)   Claims   Recognized    by    Treaty — Perfect   and    Im- 
perfect, 1033. 

1014 


Vol.  X.  PUBLIC  LANDS.  2  5-54 

(3)   Proceeding  to  Confirm,  Ascertain  and  Complete,   1034. 

(d)  Determination  by  Commissioners,   1034. 
bb.  Jurisdiction,  Powers  and  Duties,   1034. 

(bb)   Claims  Cognizable,   1034. 

(e)  Determination    by     State,   Territory    and    Federal 

Courts,  1034. 

(cc)  Claims  Cognizable  and  Confirmable,  1034. 
d.  Evidence  of  Grant  from  Former  Sovereign,  1034, 
(2)    Presumption  and  Burden  of   Proof,   1034. 
(b)   Presumption  of  Grant,  1034. 

CROSS   REFERENCES. 

See  the  title  Public  Lands,  vol.  10,  p.  1,  and  references  there  given. ' 

I.  Definitions,   Nature  and  General  Consideration. 
A.  Definitions  and  Meaning  of  Terms. — See  note  2. 

II.   Acquisition,    Control  and  Disposal. 

A.  By  the  States— 2.  Disposal— i.  Patent  or  Grant— {7)  Contest,  Cancella- 
tion or  Impeachment. — Cancellation  or  Impeachment. — See  note  26.  Patents 
from  a  state  for  its  public  lands,  signed  by  the  proper  officers,  and  in  due  form 
to  convey  the  title  of  the  state  to  the  patentees,  are  not  subjects  of  individual 
attack  as  improperly  issued  because  the  land  scrip  accepted  by  the  state  in  lieu 
of  the  purchase  price  was  not  legally  receivable  for  the  land  in  question,  but 
such  patents  can  be  set  aside  only  in  judicial  proceedings  instituted  on  behalf 
of  the  state. -^^ 

B.  By  United  States  Government — 2.  Control — a.  In  General. — ^The 
public  lands  are  vested  in  congress  in  trust  for  the  people,  and  it  is  not  for  the 
courts  to  say  how  the  trust  shall  be  administered.^ i'^ 

c.  Cutting  and  Removing  Timber — (1)  Right  to  Cut  and  Remove — (a)  In 
General. — See  note  35. 

25-2.     Term    "public   land." — "As    stated  for  the  courts  to  say  how  that  trust  shall 

in    Newhall    i:  Sanger,  92  U.  S.  761,  763,    23  be  administered.     That  is  for  congress  to 

L.   Ed.  769:    'The  •v\ords  ''public  lands"  are  determine.    The   courts  can  not  compel  it 

h.abitnally   used   in   our   legislation   to    rle-  to    set    aside    lands    for   settlement,    or    to 

tcribe  such  as  are  subject  to  sale  or  other  suffer  them  to  be  used  for  agricultural  or 

disposal      under     general    laws.' "'      Union  grazing   purposes,   nor   interfere   when,   in 

Pac.    R.    Co.   z'.    Harris,   LH.">   U.    S.   383.   34  the    exercise    of    its    discretion,    congress 

L.    Ed.    246,_    30    S.    Ct.    138.      See,    also,  establishes    a    forest    reserve    for    what    it 

Barker  v.   Rarvey,   181   U-   S.   48i.   490,   45  decides    to    be    national    and    public    pur- 

L.    Ed.    963,    21    S.    Ct.    690;    Minnesota   v.  poses.     In  the  same  way  and  in  the  exer- 

Hitchcock,   185   U.    3.   373,   391,   46   L.    Ed.  cise    of   the    same    trust    it    may    disestab- 

954,  22   S.   Ct.   650  lish  a  reserve,  and  devote  the  property  to 

39-26.      Proceeding     to     annul     title. —  some   otlier  national   and   public  purpose. 

Titles  to  public  land  acquired  in  violation  These    are    rights    incident    to   proprietor- 

of  a   state   statute   mav  be   disaffirmed   by  ship,  to  say  nothing  of  the  power  of  the 

the  state,  and  annulled  in  a  proceeding  for  United   States   as   a    sovereign     over     the 

that  purpose.      Kydj  i\   United   States,   35  jjroperty  belonging  to  it."    Light  v.  United 

Afin.  D.  C-  451.  writ  '  f  certiorari  granted.  States.  220  U.  S.  523.  55  L.  Ed.  570,  31   S. 

Hyde   v.  United   States,   218  U.   S.   681,   54  Ct.    485. 
L.    Ed.   1207,   31    S.    Ct.   228.  54-35.    Right  to  cut  and  remove  timber. 

39-28a.     Who    may    attack. — Frellsen    &  — The    authority   to    cut    timber   from    the 

Co.  7\  Crandell.  217  U.  S.  71.  54  L.  Ed.  670,  public  domain   under  Act  June   3,   1878,   c. 

30  S.  Ct.  490.  affirming  120  La.  712.  150,    20    Stat.    88    (U.    S.    Comp_.    St.    1901. 

54-31a.    Public  lands  vested  in  congress  p.   1528),   upon  "lands  being  mineral,   and 

in    trust. — "  'All    the    public    lands    of    the  not   subject   to  entry  under   existing  laws 

nation    are    held    in    trust    for    the    people  of  the   United   States,   except   for   mineral 

of   the   whole   country.'      United    States   f.  entry,"   does   not   extend  to   land   adjacent 

Trinidad  Coal,  etc.,  Co..  137  U.   S.  160.  34  to    lands    valuable    for    mineral    purposes, 

L.    Ed.   640,    11    S.    Ct.    57.      And   it   is    not  but  only  includes  lands  known  to  l)e  them- 

1015 


69-74 


PUBLIC  LAXDS. 


\o\.  X. 


e.  Regulation  of  Pasturage. — As  to  regulation  of  pasturage  on  forest  reserves, 
see  ante.  Animals,  p.  27.  As  to  delegation  by  congress  of  such  authority,  to 
the  secretary  of  agriculture,  see  ante,  Constitutionai,  Law,  p.  264. 

3.  Disposal — a.  Poiver  of  Disposal  and  Lazi's  Controlling — (1)  General 
Statement. — See  ante,  "In  General,"  II,  B,  2,  a. 

b.  Lands  Subject  to  Entry  and  Sale — (4)  Land  Previouslx  Granted.  Appro- 
priated or  Reserved — (b)  Land  to  Which  Inchoate  Rights  Attached — bb.  Lands 
Entered  by  Record — (aa)     Prior  to  Cancellation  or  Forfeiture. — See  note  99. 

(c)    Lands  Granted  to  Railroad. — See  note  4. 

(6)  Indian  Lands. — But  the  rights  of  the  Indians  under  the  treaty  of  1860 
were  not  infringed  by  a  grant  to  a  railroad,  the  treaty  making  provision  for 
such  a  grant  on  certain  conditions  being  complied  with,  where  the  act  making 
the  grant  fulfills  such  conditions. -•''' 

d.  Regular  Disposition  to  Private  Individuals — (2)  Right  to  Acquire  and 
Methods  of  Disposal — (d)  Pre-Emption — ee.  Amount  and  Location. — The  pre- 


selves  valuable  for  minerals,  which  are 
the  only  lands  excluded  by  the  federal 
statutes  from  any  but  mineral  entry. 
Judgment  (1907),  151  F.  1022,  81  C.  C.  A. 
682,  reversed.  United  States  v.  Plowman, 
216  U.  S.  372,  54  L.  Ed.  523,  30  S.  Ct.  299. 

"As  was  said  in  Northern  Pac.  R.  Co. 
V.  Lewis,  162  U.  S.  366,  376,  40  L.  Ed.  1002, 
16  S.  Ct.  831,  'the  right  to  cut  is  excep- 
tional and  quite  narrow,'  and  the  party 
claiming  the  right  must  prove  it.  The 
only  lands  excluded  in  1878  or  now  from 
any  but  mineral  entry  are  lands  'valuable 
for  minerals'  or  containing  'valuable  min- 
eral deposits.'  Rev.  Stat..  §§  2302,  2318, 
2319,  U.  S.  Comp.  Stat.,  pp.  1410,  1423, 
1424.  See  §  2320."  United  States  v.  Plow- 
man, 216  U.  S.  372,  54  L.  Ed.  523,  525,  30 
S.   Ct.  299. 

"The  matter  was  much  discussed  in 
Davis  V.  Weibold,  139  U.  S.  507,  35  L.  Ed. 
238,  11  S.  Ct.  628,  and  there  it  was  said 
that  the  exceptions  of  mineral  land  froin 
pre-emption  and  settlement,  etc.,  'are  not 
held  to  exclude  all  lands  in  which  min- 
erals may  be  found,  but  only  those  where 
the  mineral  is  in  sufficient  quantity  to  add 
to  their  richness  and  to  justify  expendi- 
ture for  its  extraction,  and  known  to  be 
so  at  the  date  of  the  grant.'  P.  519.  A 
land-department  rule  is  quoted,  with 
seeming  approval,  that  'if  the  land  is 
worth  more  tor  agriculture  than  mining, 
it  is  not  mineral  land,  although  it  may 
contain  some  measure  of  gold  or  silver.'  " 
United  States  v.  Plowman,  216  U.  S.  372, 
54  L.  Ed.  523,  30  S.  Ct.  299. 

69-99.  Prior  to  cancellation  or  forfei- 
ture.— A  soldier's  declaratory  statement 
filed  during  the  time  allowed  for  an  ap- 
peal to  the  secretary  of  the  interior  from 
a  decision  of  the  commissioner  of  the  gen- 
eral land  office  against  the  validity  of  a 
prior  homestead  entry  confers  no  rights 
upon  the  applicant,  where,  by  a  rule  of 
the  land  department  in  force  when  a  pat- 
ent for  the  land  is  finally  issued,  no  ap- 
plication will  be  received  or  any  rights 
recognized   as   initiated   by  the   tender   of 


an  application  for  a  tract  embraced  in  an 
entry  of  record  until  said  entry  has  been 
canceled  from  the  records  of  the  local 
office.  Decree  (1904),  79  P.  265,  15  Okl. 
12,  affirmed.  Holt  v.  Murphy,  207  U.  S. 
407,  52  L.   Ed.  271,  28  S.   Ct.  212. 

70-4.  Lands  granted  to  railroads. — The 
withdrawal  from  sale,  pre-emption,  or 
settJement  of  lands  within  the  indemnity 
limits  of  the  Railway  Land  Grant  Act  of 
March  3,  1863  (12  Stat-  at  L.  772),  which 
withdrawal  was  authorized,  because  the 
road  had  not  then  been  definitely  located, 
does  not  prevent  a  homestead  claim  or 
right  from  attaching  to  such  land  before 
definite  location,  and  such  right  will  be 
protected  as  against  the  subsequent  selec- 
tion of  the  land  by  the  railway  compan3^ 
Brandon  r.  Ard,  211  U.  S.  11,  53  L.  Ed. 
68.  29  S.  Ct.  1.  See  post,  "Grants  in  Aid 
of  Railroads,"   II,   B.   3,   f. 

74-23a.  Right  under  treaty  not  in- 
fringed.— Congress  did  not  infringe  any 
rights  of  the  Indians  to  whom  the  lands 
in  the  Delaware  Diminished  Indian  Res- 
ervation were  assigned  in  severalty  under 
the  treaty  of  May  30,  1860  (12  Stat,  at  L. 
1129),  in  which  it  was  agreed  that  a 
specified  railway  company  should  have  the 
perpetual  right  of  way  over  any  of  the 
lands  so  assigned  on  the  payment  of  a 
just  coinpensation  to  those  whose  lands 
were  crossed  by  its  railroad,  by  the  grant 
to  such  railway  of  a  right  of  way  400  feet 
in  width  through  the  public  lands,  made 
by  the  Act  of  July  1.  1862  (12  Stat,  at  L. 
489,  chap.  120),  which  provided  that  the 
United  States  would,  as  rapidly  as  might 
be,  extinguish  the  Indian  titles  to  all  lands 
required  for  such  right  of  way,  since  the 
provisions  of  the  statute  and  the  treaty, 
taken  together,  mean  that  the  right  of 
way  was  granted  not  merely  by  the 
United  States,  but  with  the  assent  of  the 
Indian  assignees,  and  that  the  latter  Avere 
to  be  justlj^  compensated  Kindred  v. 
Union  Pac.  R.  Co..  225  U.  S.  582,  56  L- 
Ed.  1216,  32  S.  Ct.  780. 


1016 


'ol.  X. 


PUBLIC  LAXDS. 


87-105 


emption  settler  has  the  right,  under  the  Act  of  1841.  to  enter  either  160  acres 
in  legal  subdivisions  lying  contiguous  to  each  other  without  reference  to  the 
quarter  section  lines,  or  he  has  the  right  to  enter  a  quarter  section  as  such,  in 
which  case  he  can  take  the  amount  of  land  contained  therein  as  shown  by  the 
official  survey.  In  entering  a  "quarter  section."  he  can  not,  of  course,  depart 
from  the  ascertained  lines,  but  must  take  160  acres  or  less,  as  the  case  mav  be.-*^ 

ti.  Procedure  to  Obtain  Title — (bb)  Settlement,  Occupancy  and  Iniprove- 
nient^aaa..    In  General. — See  note  6. 

ccc.  What  Constitutes  a  Sufficient  Settlement — (aaa)  In  General. — See 
post.  "\\'eight  and  Sufficiency."  II,  B.  4.  i,   (  1  ).   (  d ).  cc.   (kk),  ccc. 

(e)  Homestead — ff.    Procedure  to   Obtain — (  bb  )     Residence. — See   note  84. 

(f )  Desert  Land,  Timber  and  Stone  Land  and  Timber  Culture — bb.  Timber 
and  Stone  Land  and  Timber  Culture.^See  post.  "Land  Department  Subject 
to  Will  of  Congress."  II.  B.  4.  c. 

Persons  Entitled  to  Enter. — A  special  agent  of  the  general  land  office  is 
prevented  from  making  a  valid  timber  culture  entry  by  Rev.  St.  U.  S.,  §  452 
[U.  S.  Comp.  St.  1901.  p.  257],  prohibiting  officers,  clerks,  and  employees  in 
the  general  land  office  from  directly  or  indirectly  purchasing  or  becoming  in- 
terested in  the  purchase  of  any  of  the  public  land.^*^'' 


87-4a.  Amount  and  location. — St.  Paul, 
etc..  R.  Co.  z\  Donohue.  210  U.  S.  21,  52 
L.    Ed.    941.    28    S.    Ct.    600. 

A  homesteader  who  initiates  a  right  as 
to  either  surve3-ed  or  unsiirveyed  land,  and 
complies  with  the  legal  regulations,  may. 
when  he  enters  the  land,  embrace  in  his 
claim  land  in  contiguous  quarter  sections, 
if  he  does  not  exceed  the  quantity  allowed 
by  law,  and  provided  that  his  improve- 
mients  are  upon  some  portion  of  the  tract, 
and  that  he  does  such  acts  as  put  the  pub- 
lic upon  notice  of  the  extent  of  his  claim. 
Judgment.  Donohue  z\  St.  Paul,  M.  &  M. 
Ry.  Co.  (190T),  112  X.  W.  413.  101  Minn. 
239,  affirmed.  St.  Paul.  etc..  R.  Co.  f. 
Donohue.  210  U.  S.  21.  .52  L.  Ed.  941.  28 
S.    Ct.    600. 

"This  is  further  illustrated  by  the  text 
of  §  2306.  Rev.  Stat.  (U.  S.  Comp.  Stat. 
1901.  p.  1415).  which  provides  that  every 
person  entitled  to  enter  a  soldier's  and 
sailor's  homestead,  who  had  previously 
entered,  under  the  homestead  laws,  a 
quantity  of  land  less  than  160  acres,  was 
authorized  'to  enter  so  much  land  as, 
when  added  lo  the  quantity  previously 
entered,  should  not  exceed  160  acres.'" 
St.  Paul.  etc..  R.  Co.  z:  Donohue.  210  U. 
S.   21,   52   L.   Ed.   941.   28   S.   Ct.   600. 

The  homestead  law  enacted  on  ^lay  20. 
1862.  12  Stat,  at  L.  392.  chap.  75.  The 
text  which  was  afterwards  embodied  in 
Rev.  Stat..  §  2289.  et  seq.  (U.  S.  Comp. 
Stat.  1901,  p.  1388),  makes  it  obvious  that 
it  was  contemplated  that,  as  under  the 
settled  rule  applied  in  the  enforcement 
of  the  pre-emption  laws,  the  homesteader 
was  not  to  be  confined  to  a  particular 
regular  quarter-section  tract  in  order  that 
he  might  receive  160  acres,  but  was  au- 
thorized to  make  up  the  allotted  quantity 
by   joining   contiguous   legal   subdivisions. 


St.  Paul,  etc.,  R.  Co.  z'.  Donohue,  210  U. 
S.  21,  52   L.   Ed.   941.  28   S.   Ct.  60(i. 

87-6.  Settlement,  occupancy  and  im- 
provement.— "Both  under  the  pre-emption 
law  and  under  the  homestead  law,  after 
the  Act  of  1880,  the  rights  of  the  settler 
were  initiated  by  settlement.  In  general 
terms  it  may  be  said  that  the  pre-emption 
laws  (Rev.  Stat.,  §§  2257  to  2288.  U.  S. 
Comp.  Stat.  1901,  pp.  1381-1385).  as  a  con- 
dition to  an  entry  of  public  lands,  merely 
required  that  the  appropriation  should 
have  been  for  the  exclusive  use  of  the 
settler,  that  he  should  erect  a  dwelling 
house  on  the  land,  reside  upon  the  tract, 
and  improve  the  same.  By  the  homestead 
law,  residence  upon  and  cultivation  of  the 
land  was  required.  Under  neither  law 
was  there  a  specific  requirement  as  to 
when  the  improvement  of  the  land  should 
be  commenced  or  as  to  the  nature  and  ex- 
lent  of  such  improvement,  nor  was  there 
any  requirement  that  the  land  selected 
should  be  inclosed."  St.  Paul,  etc.,  R.  Co. 
r.  Donohue.  210  U.  S.  21.  52  L.  Ed.  941, 
28  S.  Ct.  600. 

101-84.  Residence — Improvement. — Un- 
der the  homestead  law.  after  the  Act  of 
1880,  the  rights  of  the  settler  were  in- 
itiated by  settlement.  By  the  homestead 
law.  residence  upon  and  cultivation  of  the 
land  was  required.  There  was  no  specific 
requirement  as  to  when  the  improvement 
of  the  land  should  be  commenced  or  as  to 
the  nature  and  extent  of  such  improve- 
ment that  the  land  selected  should  be  in- 
closed. St.  Paul,  etc.,  R.  Co.  z-  Dono- 
hue. 210  U.  S.  21.  52  L.  Ed.  941.  28  S.  Ct. 
600. 

105-16a.  Right  of  special  agent  to  en- 
ter.— Prosser  z:  Finn.  208  U.  S.  67,  52  L. 
Ed-  392,   28    S.   Ct.   225. 

"It  is  not  clear  from  anj'  document  or 


1017 


105 


PUBLIC  LANDS. 


Vol.  X. 


Alienation  of  Rights. — See  note  18. 

Right   Acquired   by  Entry. — Continuing  in  possession  after  ceasing  to  be 
a  special  agent  of  the  land  office  is  not  the  equivalent  of  a  new  timber  culture 


decision  to  which  our  attention  has  been 
called,  what  is  the  scope  of  the  duties  of 
a  special  agent  to  the  land  office,  but  the 
existence  of  that  office  or  position  has 
long  been  recognized.  Suffice  it  to  say- 
that  they  have  official  connection  with  the 
general  land  oflice,  and  are  under  its  su- 
pervision and  control  with  respect  to  the 
administration  of  the  public  lands."  Pros- 
ser  V.  Finn,  208  U.  S.  67,  52  L.  Ed.  392,  28 
S.  Ct.  225,  citing  Wells  v.  Nickles,  104  U. 
S.  444,  26  L.  Ed.  825;  1  Land  Dec.  608, 
620,  696;  Re  Hall,  2  Land  Dec.  814;  Re 
Lawrence,  2  Land  Dec.  819;  Re  North- 
ern P.  R.  Co.,  2  Land  Dec.  820;  Re  Fond 
du  Lac  Reservation,  2  Land  Dec.  821;  Re 
Ft.  Camerson  Reserve,  2  Land  Dec.  822; 
2  Land  Dec.  827;  Re  Montana  Improv. 
Co.,  2  Land  Dec.  828;  2  Land  Dec.  832;  12 
Land  Dec.  499. 

105-18.  Alienation  of  rights. — An  entry- 
man  who  has  made  an  application  under 
the  Timber  and  Stone  Act  (Act  June  3. 
1878,  c.  151,  20  Srat.  89),  as  amended  by 
Act  Aug.  4,  1892,  c.  375,  27  Stat.  348  (U. 
S.  Comp.  St.  1901,  p.  1545),  in  good  faith, 
and  for  his  exclusive  use  and  benefit,  is 
not  prohibited  from  subsequently  agree- 
ing to  convey  the  land  covered  by  his  ap- 
plication to  another,  and  to  perfect  his 
entry  for  the  purpose,  after  patent,  of  ful- 
filling his  contract,  by  the  provision  of 
the  statute  forbidding  an  entryman  or  ap- 
plicant from  making  an  application  os- 
tensibly in  his  own  name,  but  in  reality 
for,  and  on  behalf  of,  another.  Judgment 
(D.  C.  1907),  157  F.  264,  affirmed.  United 
States  V.  Biggs.  211  U.  S.  507,  53  L.  Ed. 
305,  29  S.  Ct.  181;  United  States  v.  Free- 
m.-\n,  211  U.  S.  525,  53  L  Ed.  311,  29  S.  Ct. 
185:  United  States  v.  Sullenberger.  211  U. 
S.  522,   53  L.   Ed.  311.  29   S.   Ct.  186. 

The  omission  in  Timber  and  Stone  Act 
Tune  3,  1878,  c.  151,  §  3.  20  Stat.  89  [U.  S. 
Comp.  St.  1901.  p.  15451,  exacting  on  the 
final  application  some  of  the  requirements 
made  necessary  on  the  original  applica- 
tion for  the  purchase  of  land  under  that 
act,  of  any  reiteration  of  the  requirem_ents 
of  the  statute  regarding  a  speculative  pur- 
pose on  the  part  of  the  applicant,  his 
bona  fides,  and  his  intent  to  acquire  the 
land  for  himself  alone,  is  equivalent  to  an 
express  declaration  by  congress  that  these 
requirements  shall  not  be  exacted  at  the 
final  hearing.  Williamson  v.  United 
States,  207  U.  S.  425.  52  L.  Ed.  278,  28 
S.    Ct.    163. 

Evidence  of  the  motive  of  the  entryman 
under  Timber  and  Stone  Act  June  3,  1878. 
c.  151,  §  3,  20  Stat.  89  [U.  S.  Comp.  St. 
1901.  p.  1545],  at  the  time  of  final  hearing, 
which,  under  tliat  act.  can  not  defeat  his 
right    to    a   patent,    is    inadmissible,    on    a 


trial  for  conspiring  to  suborn  perjury  in 
the  proceedings  to  acquire  the  land,  to 
show  motive  in  inaking  the  original  ap- 
plication. Williamson  v.  United  States, 
207  U.  S.  425,  52  L.  Ed.  278.  28  S.  Ct.  163, 
cited  in  United  States  v.  Biggs,  211  U.  S. 
507,    53    L.    Ed.    305,   29    S.    Ct.    181. 

"These  conclusions  are  directly  sus- 
tained by  a  recent  ruling  in  Adams  z-. 
Church,  193  U.  S.  510,  48  L.  Ed.  769,  24 
S.  Ct.  512.  construing  the  Timber  Culture 
Act.  Under  that  law  an  applicant  for  en- 
try was  obliged,  among  other  things,  in 
making  his  application,  to  swear  to  his 
good  faith  and  to  the  absence  of  specula- 
tive purpose,  in  the  exact  words  of  the 
statute  now  under  consideration.  But  in 
the  Timber  Culture  Act,  as  in  the  Timber 
and  Sione  Act,  the  requirement  was  not 
reimposed  in  respect  to  the  final  proof. 
In  the  cited  case  the  entryman,  who  had 
complied  with  the  statute  in  making  his 
application,  had,  between  the  date  of  the 
application  and  the  final  proof,  disposed 
of  his  right,  and  the  quesiion  was  whether 
by  so  doing  he  had  forfeited  his  claim." 
Williamson  v.  United  States,  207  U.  S. 
425,    52    L.    Ed.   278,   28    S.    Ct.    163. 

"If  the  entryman  has  complied  with  the 
statute  and  made  the  entry  in  good  faith, 
in  accordance  with  the  terms  of  the  law 
and  the  oath  required  of  him  upon  mak- 
ing such  entry,  and  has  done  nothing  in- 
consistent with  the  terms  of  the  law,  we 
find  nothing  in  the  fact  that,  during  his 
term  of  occupancy,  he  has  agreed  to  con- 
vey an  interest  to  be  conveyed  after  pat- 
ent issued,  which  will  defeat  his  claim  and 
forfeit  the  right  acquired  by  planting  the 
trees  and  complying  with  the  terms  of 
the  law.  Had  congress  intended  such  re- 
sult to  follow  from  the  alienation  of  an 
interest  after  entry  in  good  faith,  it  would 
have  so  declared  in  the  law."  Williamson 
V.  United  States,  207  U.  S.  425,  52  L.  Ed. 
278,  28  S.  Ct.  163,  citing  Myers  v.  Croft, 
13   Wall.   291,   20  L.   Ed.   562. 

Conspiracy  to  induce  entrj'men  to  con- 
vey.— A  conspirac}^  to  induce  entrymen 
who  have  made  application  under  the  Tim- 
ber and  Stone  Act  of  June  3,  1878.  as 
amended  by  the  Act  of  Aug.  4,  1898,  to 
agree  to  convey  after  patent,  is  not  one 
to  defraud  the  United  States  "in  any 
manner  or  for  any  purpose,"  within  the 
meaning  of  the  U.  S.  Rev.  Stat.,  §  5440,  U. 
S.  Comp.  Stat.  1901,  p.  3676,  since  the 
former  statute  not  only  does  not  ex- 
pressly prohibit  an  entryman  from  mak- 
ing such  an  agreement,  but  impliedly 
sanctions  it.  United  States  v.  Biggs,  211 
U.  S.  507.  53  L.  Ed.  305.  29  S.  Ct.  181.  See, 
also,  ante,  CONSPIRACY,  p.  256. 


1018 


Vol.  X. 


PUBLIC  LAXDS. 


105-130 


entry,  where  the  original  entrv^  was  invalid  because  made  in  direct  violation 
of  Rev.  St.  U.  S.,  §  452  [U. 'S.  Comp.  St.  1901,  p.  257],  while  he  was  such 
special  agent. -^^ 

Cancellation  of  Entry. — Reliance,  in  making  a  timber  culture  entry,  upon 
the  opinion  of  the  commissioner  of  the  general  land  ofifice,  that  the  provisions 
of  Rev.  St.  U.  S.,  §  452  [U.  S.  Comp.  St.  1901,  p.  257],  prohibiting  officers, 
clerks,  or  employees  in  the  general  land  office  from  entering  lands  within  the 
public  domain,  did  not  embrace  a  special  agent  of  the  land  office,  can  confer 
no  interest  upon  such  special  agent  which  will  prevent  the  government,  by  its 
proper  officer  or  department,  from  cancelling  his  entr}^20b 

(g)  Town  Site — dd.  Rights  of  Occupants — Statement  of  Claim  and  Pay- 
ment of  Price — (aa)    Right  and  Title  under  Entry. — See  note  34. 

(5)  Right  and  Title  to  Public  Land — (c)  Prior  to  Issuance  of  Patent — cc. 
Title  and  Rights  Acquired  Prior  to  Fulfillment  of  Conditions — (bb)  Rights  as 
against  Third  Parties. — See  note  82. 


105-20a.     Rights    acquired    by     entry. — 

Prosser  z:  Finn.  208  U.  S.  GT.  52  L.  Ed. 
392,    28    S.    Ct.    225. 

105-20b.  Cancellation  of  entry. — Prosser 
z:  Finn,  208  U.  S.  67,  .52  L.  Ed.  392,  28  S. 
Ct.    22.5. 

107-34.  Under  Act  March  2,  1867.— "In 
Ashby  z'.  Hall.  119  U.  S.  526,  30  L.  Ed. 
469,  7  S.  Ct.  308,  this  court  said,  speaking 
by  Mr.  Justice  Field,  that  'the  power 
vested  in  the  legislature  of  the  territory 
(Montana)  in  the  execution  of  the  trust 
(under  §  2387)  upon  which  the  entry  was 
made  was  confined  to  regulations  for  the 
disposal  of  the  lots  and  the  proceeds  of 
the  sales.  These  regulations  might  ex- 
tend to  provisions  for  the  ascertainment 
of  the  nature  and  extent  of  the  occupancy 
of  different  claimants  of  lots,  and  the  ex- 
ecution and  delivery  to  those  f9und  to  Vje 
occupants  in  good  faith  of  some  official 
recognition  of  title,  in  the  nature  of  a  con- 
veyance. P>nt  they  could  not  authorize 
any  diminution  of  the  rights  of  the  oc- 
cupants when  the  extent  of  their  occu- 
pancy was  established.  The  entry  v/as  in 
trust  for  them,  and  nothing  more  was 
necessary  than  an  official  recognition  of 
the  extent  of  their  occupancy.  Under  the 
authority  conferred  by  the  Town  Site  Act, 
the  legislature  could  not  change  or  close 
the  streets,  alleys,  and  blocks  of  the  town 
by  a  new  survey.  Whatever  power  it  may 
have  had  over  them  did  not  come  from 
that  act,  but,  if  it  existed  at  all,  from  the 
general  grant  of  lesjislative  power  under 
the  Organic  Act  of  the  territory.'  See, 
also,  Stringfellow  f.  Cain.  99  U.  S.  G10,  25 
L.  Ed.  421;  Cofield  z:  McClelland.  16  Wall. 
331,  21  L.  Ed.  339;  Hussey  f.  Smith.  99  U. 
S.  20,  25  L.  Ed.  314.  ^lany  state  cases  are 
to  the  same  effect,  and  may  be  found  in 
the  notes  to  §  2387  in  United  States  Fed- 
eral Statutes  Annotated,  vol.  6,  p.  344,  et 
seq."  Scully  v.  Squier.  215  U.  S.  144,  54 
L.    Ed.    131.   30   S.    Ct.   51. 

The  rights  of  the  occupants  of  town- 
site  lots,  fixed  by  the  extent  of  their  oc- 
cupancy, could  not  be  diminished  by  con- 


ye>-nncfs  from  the  mayor  t'-ustee  accord- 
ing to  the  plat  made  and  filed  under  Act 
Idaho  Jan.  8,  1873  (Laws  1873,  p.  16), 
enacted  pursuant  to  Rev.  St.  U.  S.,  §  2387 
(U.  S.  Comp.  St.  1901.  p.  1457),  to  pro- 
vide for  the  disposal  of  the  lots — es- 
pecially where  the  state  supreme  court 
construes  such  statute  as  not  giving  the 
power  to  make  a  survey  or  plat  which  did 
not  conform  to  the  lines  of  occupation. 
Decree  (1907),  90  P.  573,  13  Idaho  417, 
affirmed.  Scully  v.  Squier,  215  U.  S.  144, 
54  L.  Ed.  131,  30  S.  Ct.  51. 

130-82.  Rights  as  against  third  parties. — 
In  Shepley  z:  Cowan.  91  V.  S.  330,  23  L. 
Ed.  424,  there  was  conflict  between  a  pre- 
emption claim  and  a  selection  on  behalf 
of  the  state  of  Missouri  under  an  act  of 
congress  conveying  to  the  state  a  large 
quantity  of  land  to  be  selected  bv  the 
governor,  the  act  providing  that  if  the 
selection  should  be  approved  by  the  secre- 
tary of  the  interior,  patents  were  to  issue. 
The  court  s&id:  "The  party  who  takes 
the  initiatory  step  in  such  cases,  if  fol- 
lowed up  to  patent,  is  deemed  to  have 
acquired  the  better  right,  as  against 
others,  to  the  premises.  The  patent  which 
is  afterwards  issued  relates  back  to  the 
date  of  the  initiatory  act.  and  cuts  oflF  all 
intervening  claimants.  Thus,  the  patent 
upon  a  state  selection  takes  effect  as  of 
the  time  v/hen  the  selection  is  made  and 
reported  to  the  land  office:  and  the  pat- 
ent upon  a  pre-emption  settlement  takes 
eflfect  from  the  time  of  the  settlement, 
as  disclosed  in  the  declaratory  statement 
or  proofs  of  the  settler  to  the  register  of 
the  local  land  office."  Weverhaeuser  ?'. 
Hovt.  219  U  S.  380,  55  L.  td.  258.  31  S. 
Ct.  300. 

The  court,  in  the  above  cited  case,  after 
distinguishing  Frisbie  z'.  Whitnej'.  9  Wall. 
187,  19  L.  Ed.  66S,  and  The  Yosemite  Val- 
ley Case.  15  Wall.  77.  21  L.  Ed.  82.  said: 
"But  whilst,  according  to  these  decisions, 
no  vested  right  as  against  the  United 
States  is  acquired  until  all  the  prerequisites 
for  the   acquisition  of  the   ti^le  have  been 


1019 


131-174 


PUBLIC  LANDS. 


\o\.  X. 


Entryman  Acquires  Equity. — One  who  has  taken  land  under  the  pre- 
emption or  homestead  law  acquires  an  equity  of  which  he  can  not  he  deprived 
by  any  individual  under  the  like  laws.^-'"' 

(9)  Remedies— h.  Before  the  Courts — cc.  Recovery  of  Money  Paid — (dd) 
Recoverv  of  Excess. — One  who  pays  money  to  a  government  officer  for  public 
lands  in"  excess  of  the  price  established  by  law  can  not  recover  back  the  excess 
in  an  action  against  the  United  States;  the  principle  being  that  courts  are 
not  established  to  unsettle  the  transactions  of  men.-'''^''  And  where  money  is 
voluntarily  paid  to  a  receiver  of  the  land  office  after  a  party's  attention  has 
been  called  to  a  legal  risk  attending  such  act,  the  payment  must  be  regarded 
as  made  in  mistake  of  law,  and  not  in  mistake  of  fact,  and  an  action  will  not 
lie  to  recover  it  back.-""'^'' 

f.  Grants  in  Aid  of  Railroads— (2)  Grants  in  Aid  of  Construction — (c) 
J'esting  of  Title — aa.  /;/  General — Grants  in  Prcvsenti — (  aa  )  Original  Grant. 
— See  note  32. 

(j)     Lands  Included — aa.     General   Statement. — See   note   61. 


complied  with,  parties  may,  as  against 
each  other,  acquire  a  right  to  l)e  pre- 
ferred in  the  purchase  or  other  acquisition 
of  the  land  when  the  United  States  have 
determined  to  sell  or  donate  the  property. 
In  all  such  cases  the  first  in  time  in  the 
commencement  of  proceedings  for  the  ac- 
quisition of  the  title,  when  the  same  are 
regularly  followed  up,  is  deemed  to  be 
the  first  in  right."  Weverhaeuser  f.  Hoyt, 
219  U.   S.  380,  55  L.   Ed.  258.  31   S.  Ct.  300. 

131-83a.  Entryman  acquires  equity. — 
Union  Pac.  R.  Co.  v.  Harris,  215  U.  S. 
386,   54  L.   Ed.  2-46,  30   S.   Ct.   138. 

"While  the  power  of  congress  over 
lands  which  an  individual  is  seeking  to 
acquire  under  either  the  pre-emption  or 
the  homestead  law  remains  until  the  pay- 
ment of  the  full  purchase  price  required 
by  the  former  law  or  the  full  occupation 
prescribed  by  the  latter,  yet,  under  the 
general  land  laws  of  the  United  States, 
one  who,  having  made  an  entry,  is  in 
actual  occupation  under  the  pre-emption 
or  homestead  law%  can  not  be  dispossessed 
of  his  priority  at  the  instance  of  any  in- 
dividual "  Union  Pac.  R.  Co.  z'.  Harris, 
215  U.  S.  386,  54  L.  Ed.  246,  30  S.  Ct.  138, 
citing  Hastings,  etc.,  R.  Co.  t'.  Whitney, 
132  U.  S.  357,  364,  33  L.  Ed.  363,  10  S.  Ct. 
112. 

145-56a.  Recovery  of  excess. — United 
States  V.  ]Miller,  208  U.  S.  32,  52  L.  Ed. 
376.    28    S.    Ct.    199. 

145-56b.  Money  paid  under  mistake  of 
law.— United  States  z'.  Miller,  208  U.  S. 
32,    52    L.    Ed.    376,    28    S.    Ct.    199. 

155-32.  Grant  in  praesenti. — The  grant 
of  lands  within  place  limits,  made  by  Act 
July  1.  1862,  c.  120,  §  14.  12  Stat.  489,  as 
amended  by  Act  July  2,  1864,  c.  216,  §  17, 
13  Stat.  356,  in  aid  of  a  branch  railroad 
to  be  constructed  on  the  same  terms  and 
conditions  as  the  main  line,  is  not  taken 
out  of  the  general  rule  that  the  grant  is 
one  in  pr?esenti,  and  that,  on  filing  the 
map   of   definite   location,   the   title   passes 


to  the  railway  company  so  that  it  can  be 
held  adversely,  even  as  against  such  com- 
pany, because  the  road  which  might  build 
the  branch  was  not,  or  may  not  have  been, 
in  existence  at  the  time  of  the  passage  of 
the  amendatory  act,  nor  because  of  its 
provision  that  said  company  shall  be  "en- 
titled to  receive"  alternate  sections  of 
land  for  ten  miles  in  width  on  each  side 
of  the  way,  along  the  whole  length  of  the 
branch,  nor  because  of  the  supposed  lim- 
ited character  of  the  forfeiture  provided 
for  failure  to  complete  the  branch.  Mis- 
souri Valley  Land  Co.  v.  Wiese,  208  U. 
S.  234,  52  L.  Ed.  466,  28  S.  Ct.  294,  affirm- 
ing judgment  in  Wiese  z'.  Union  Pac.  Rv. 
Co.  "(Neb.  1906),  108  N.  W.  175;  Missouri 
Valley  Land  Co.  v.  Wrich,  208  U.  S.  250, 
52  L.  Ed.  473,  28  S.  Ct.  299,  affirming  judg- 
ment Wrich  z'.  Union  Pac.  Ry.  Co.  (Neb. 
1906),   108   N.  W.   178. 

"This  is  so,  since  it  has  been  expressly 
held  that  the  main  line  grant  was  one  in 
praesenti,  that  the  grantee  company  had 
a  right  to  bring  ejectment  for  such  land 
after  the  definite  location  of  its  road,  and 
that  consequently,  from,  the  time  of  such 
definite  location,  a  possession  might  be 
acquired  by  a  third  party  to  land  em- 
braced within  the  grant,  which  would  be 
adverse,  even  as  to  the  railroad  company, 
and  bar  its  title  if  possession  was  con- 
tinued for  the  statutory  length  of  time." 
Missouri  Vallev  Land  Co.  v.  Wiese,  208 
U.  S.  234,  52  L.  Ed.  466,  28  S-  Ct.  294, 
citing  De=eret  Salt  Co.  v.  Tarpey,  142  U. 
S.  241,  35  L.  Ed.  999,  12  S.  Ct.  158;  Toltec 
Ranch  Co.  r.  Cook,  191  U.  S.  532,  48  L. 
Ed.  29i,  24  S.  Ct.  166;  Iowa  R.  Land  Co. 
z'.  Blumer.  206  U.  S.  482,  51  L.  Ed.  1148, 
27    S.    Ct.    769. 

174-61.  Land  included — T^anH  soM  or 
otherwise  appropriated. — ^"In  Nelson  v. 
NorMieni  Pac.  R.  Co.,  188  U.  S.  108,  130, 
47  L.  Ed.  406,  23  S.  Ct.  302,  the  court 
again  construed  the  Act  of  1864.  That 
was  the   case   of  one  who  went  upon   and 


1020 


Vol.  X. 


PUBLIC  LAXDS. 


174 


occupied  certain  lands  within  the  place 
limits,  before  the  dehnite  location  ol  the 
railroad  line,  with  the  bona  fide  purpose 
to  acquire  title  under  the  laws  of  the 
L>'nit«ci  States.  This  court  said:  'It  re- 
sults that  the  railroad  company  did  not 
acquire  any  vested  interest  in  the  land 
here  in  dispute  in  virtue  of  its  map  or 
general  route  or  the  withdrawal  order 
based  on  such  map;  and  if  such  land  was 
not  "free  from  pre-eniption  or  other 
claims  or  rights,''  or  was  "occupied  by 
homestead  settlers"'  at  the  date  of  the 
dehnite  location  on  December  8,  1884,  it 
did  not  pass  by  the  grant  of  1864.'  "  North- 
ern Pac.  R.  Co.  V.  Trodick,  221  U.  S.  208, 
55   L.   Ed.   704,  31   S.   Ct.  607. 

"Some  reliance  is  placed  on  the  delay 
occurring  after  the  survey  of  the  lands 
before  1  rodi.ck  made  his  homestead  ap- 
plication, the  statute  of  May  14,  1880, 
chap.  89,  21  Stat,  at  L.  140,  U.  S.  Comp. 
Stat.  1901,  p.  1392,  prescribing  a  certain 
period  within  which  the  homesteader 
should  act  after  the  survey  of  the  lands. 
i)Ut  that  delay  was  immaterial  as  affect- 
ing the  rights  of  the  homestead  applicant, 
because  no  rights  of  others  had  inter- 
vened intermediate  the  survey  and  Tro- 
dick's  formal  application."  Northern  Pac. 
R.  Co.  V.  Trodick,  221  U.  S.  208,  55  L. 
Ed.   704,  31   S.   Ct.   607. 

"A  similar  question  arose  in  Whitney 
z:  Taylor,  158  U.  S.  85,  97,  39  L.  Ed.  906, 
15  S.  Ct.  796,  and  it  was  thus  disposed  of: 
Tt  is  true  that  §  6  of  the  act  of  1853  (10 
Stat,  at  L.  246,  chap.  145)  provides  "that 
W'here  unsurveyed  lands  are  claimed  by 
pre-emption,  the  usual  notice  of  such 
claim  shall  be  filed  within  three  months 
after  the  return  of  the  plats  of  surveys  to 
the  land  offices."  '  ''  Northern  Pac.  R.  Co. 
V.  Trodick,  221  U.  S.  208,  55  L.  Ed.  704, 
31    S.    Ct.   607. 

"But  it  was  held  in  Johnson  Z'.  Towsley, 
13  Wall.  72,  87,  20  L.  Ed.  485,  that  a  fail- 
ure to  file  within  the  prescribed  time  did 
not  vitiate  the  proceeding,  neither  the  de- 
lay be  taken  advantage  of  by  one  who  had 
acquired  no  rights  prior  to  the  filing.  As 
said  in  the  opinion  in  that  case  (p.  90): 
'If  no  other  party  had  made  a  settlement 
or  has  given  notice  of  such  intention, 
then  no  one  has  been  injured  by  the  de- 
lay beyond  three  months,  and  if,  at  any 
time  after  the  three  months,  while  the 
party  is  still  in  possession,  he  makes  his 
declaration,  and  this  is  done  before  tny- 
one  else  has  initiated  a  right  of  pre- 
emption by  settlement  or  declaration,  we 
can  see  no  purpose  in  forbidding  him  to 
make  his  declaration,  or  in  making  it 
void  when  made.  And  we  think  that  con- 
gress intended  to  provide  for  the  protec- 
tion of  the  first  settler  by  giving  liim 
three  months  to  make  his  declaration,  and 
for  all  other  settlers  by  saying,  if  this  is 
not  done  withi?!  three  months,  anyone 
else    who    has    settled    on    it    within    that 


time,  or  at  any  time  before  the  first  set- 
tler makes  his  declaration,  shall  have  tne 
better  right."  "  Northern  Pac.  R.  Uo.  i. 
Trodick,  221  U.  S.  208,  55  E.  Ed.  704,  31 
S.    Ct.   607. 

'"See,  also,  Lansdale  ;:•.  Daniels,  100  U. 
S.  113,  117,  25  L.  Ed.  587,  where  it  is  said: 
'Such  a  notice,  if  given  before  the  time 
allowed  by  law,  is  a  nullity;  but  the  rule 
IS  otherwise  where  it  is  hied  subsequent 
to  the  period  prescribed  by  the  amenda- 
tory act,  as,  in  the  latter  event,  it  is  held 
to  be  operative  and  sufficient  unless  some 
other  person  had  previously  commenced 
a  settlement  and  given  the  required  no- 
tice ot  claim.'  The  delay  in  filing,  there- 
fore, had  no  effect  upon  the  validity  of 
the  declaratory  statement."  Northern 
Pac.  R.  Co.  V.  Trodick,  221  U.  S.  208,  55 
L.    Ed.  704,  31   S.   Ct.   607. 

"In  McNeal's  Case,  6  Land  Dec.  652, 
Secretary  Vilas  referred  to  the  Act  of 
May  14,  1880  (21  Stat,  at  L.  140,  chap.  89, 
U.  S.  Comp.  Stat.  1901,  p.  1392),  which 
related  to  settlers  on  public  lands,  and 
provided  that  their  rights  should  relate 
back  to  the  date  of  settlement,  the  same 
as  if  he  settled  under  the  pre-emption 
laws.  The  entry  in  that  case  was  can- 
celed by  the  commissioner.  ine  secre- 
tary said:  'There  being  no  intervening- 
claim,  I  see  no  reason  why  his  rights  may 
not  relate  back  to  the  time  of  his  settle- 
ment, even  though  he  did  not  file  for  the 
land  within  three  months  thereafter,  in 
strict  accordance  with  the  requirements 
of  the  Act  of  May  14,  1880.'  "  Northern 
Pac.  R.  Co.  z:  Trodick,  221  U.  S.  208,  55 
L.   Ed.  704,  31   S.   Ct.   607. 

"In  St.  Paul,  etc.,  R.  Co.  v.  Northern 
Pac.  R.  Co.,  139  U.  S.  1,  5,  35  L.  Ed.  77,  11 
S.  Ct.  389,  a  case  arising  under  the  North- 
ern Pacific  grant  of  1864,  it  was  distinctly 
held  that  "land  which,  previously  to  defi- 
nite location,  had  been  reserved,  sold, 
granted,  or  otherwise  appropriated,  or 
upon  which  there  was  a  pre-emption  "or 
other  claim  or  right,"  did  not  pass  bj' 
the  grant  of  congress.' "'  Northern  Pac. 
R.  Co.  V.  Trodick,  221  U.  S.  208,  55  L.  Ed. 
704,    31    S.    Ct.    607. 

"In  United  States  z'.  Northern  Pac.  R. 
Co.,  152  U.  S.  284,  296,  38  L.  Ed.  443,  14 
S.  Ct.  598.  the  court,  referring  to  the  same 
grant,  said:  'The  Act  of  1864  granted  to 
the  Northern  Pacific  Railroad  Company 
only  public  land,  *  *  =p  free  from  pre- 
emption or  other  claims  or  rights  at  the 
time  its  line  of  road  was  definitely  fixed 
and  a  plat  thereof  filed  in  the  office  of  the 
commissioner  of  the  general  land  office.'  " 
Xortliern  Pac.  R.  Co.  z'.  Trodick,  221  U. 
S.  208,  55  L.  Ed.  704.  31   S.  Ct.  601. 

"In  Northern  Pac.  R.  Co.  z\  Sanders, 
166  U.  S.  620,  629.  41  L.  Ed.  1139,  17  S. 
Ct.  671,  it  was  said  that  the  .Act  of  July 
2,  1864,  under  which  the  railroad  com- 
pany claims  title,  excluded  from  the 
grant  'all  lands  that  were  not.  at  the  time 


1021 


179 


PUBLIC  LANDS. 


Vol.  X. 


cc.  Particular  Lands  Excluded — (aa)  Lands  Included  in  Prior  Railroad 
Grant — ddd.  Railroad  Grant  Forfeited. — See  note  82.  But  land  lying  within 
the  primary  limits  of  the  grant  made  to  the  Atlantic  &  Pacific  Railroad  Com- 
pany by  the  Act  of  July  27,  1866,  and  also  within  the  indemnity  limits  of  the 
grant  made  by  the  same  act  to  the  Southern  Pacific  Railroad  Company,  might,, 
after  the  forfeiture  by  the  Atlantic  &  Pacific  Railroad  Company  of  its  grant 
by  the  Act  of  July  6,  1886,  be  selected  as  indemnity  lands  by  the  Southern 
Pacific  Railroad  Company.^^a 

(bb)    Reserved  Swamp  Lands. — See  note  84. 

(fif)  Indian  Land. — As  to  infringement  of  rights  under  treaty  of  May  30,. 
1860,  by  an  act  granting  right  of  way  to  railway,  see  ante,  "Indian  Lands,"  II, 
B,  3,  b,   (6). 

Effect  of  Provision  in  Treaty. — Lands  in  the  Delaware  Diminished  In- 
dian Reservation,  which  had  been  assigned  in  severalty  under  the  treaty  of  May 
30,  1860,  must  be  deemed  included  in  the  terms  "public  lands,"  as  used  in  the 
Act  of  July  1,  1862,  granting  a  right  of  way  to  the  Leavenworth,  Pawnee  & 
Western  Railroad  Company  through  the  public  lands,  in  view  of  the  provision 
of  that  act  that  the  United  States  should  extinguish  as  rapidly  as  might  be  the 
Indian  titles  to  all  lands  required  for  the  right  of  way,  and  of  the  action  of  the 


the  line  of  the  road  was  definitely  fixed, 
free  from  pre-emption  or  other  claims  or 
rights.'  "  Northern  Pac.  R.  Co.  v.  Tro- 
dick,  221  U.  S.  208,  55  L-  Ed.  704,  31  S. 
Ct.   607. 

"In  United  States  z'.  Oregon,  etc.,  R. 
Co..  176  U.  S.  28,  50,  44  L.  Ed.  358,  20  S. 
Ct.  261,  the  court  held  that  the  'Northern 
Pacific  Railroad  Company  could  take  no 
lands  except  such  as  were  unappropriated 
at  the  time  its  line  was  definitely  fixed."  " 
Northern  Pac.  R.  Co.  v.  Trodick,  221  U. 
S.    208,    55    L.    Ed.    704,    31    S.    Ct.    607. 

179-82.  Railroad  grant  forfeited. — 
None  of  the  lands  lying  within  either  the 
granted  or  the  indemnity  limits  of  the 
grant  made  to  the  Atlantic  &  Pacific  Rail- 
road Company  by  the  Act  of  July  27,  1866 
(14  Stat,  at  L.  292,  chap.  278),  were  sub- 
ject to  selection  as  indemnitj'  lands  by  the 
Southern  Pacific  Railroad  Company,  un- 
der the  Act  of  March  3,  1871  (16  Stat,  at 
L.  573,  579,  chap.  122),  §  23,  although  ly- 
ing within  the  indeinnity  limits  of  such 
grant,  and  although  the  Atlantic  &  Pa- 
cific Railroad  Company  had  forfeited  its 
grant  by  the  Act  of  July  6,  1886  (24  Stat, 
at  L.  123,  chap.  637),  before  the  Southern 
Pacific  Railroad  Company  made  its  selec- 
tion. Southern  Pac.  R.  Co.  v.  United 
States,  223  U.  S.  560,  56  L.  Ed.  551,  32  S. 
Ct.  325. 

"The  Atlantic  &  Pacific  road  forfeited 
its  grant  (Act  of  July  6,  1886,  chap.  637, 
24  Stat,  at  L.  123),  and  thereafter  the 
Southern  Pacific  selected  the  parcels  in 
question  as  indemnity  under  its  mainline 
grant.  The  rights  of  the  Southern  Pacific 
under  this  grant  were  not  subordinated  to 
those  of  the  Atlantic  &  Pacific  under  the 
same  statute,  as  they  were  by  its  branch- 
line  grant  of  1871."  United  States  v. 
Southern  Pac.  R.  Co.,  223  U.  S.  565,  56 
L.    Ed.    553,   32    S.    Ct.   326. 


"In  Southern  Pac.  R.  Co.  v.  United 
States,  168  U.  S.  1,  42  L.  Ed.  355,  18  S.  Ct. 
18,  the  lands  in  controversy  embraced 
among  others,  as  stated  by  Mr.  Justice 
Harlan,  'lands  within  the  Southern  Pa- 
cific indemnity  limits  and  the  Atlantic  & 
Pacific  granted  limits;  [and]  lands  within 
the  common  indemnity  limits  of  'both 
grants.'  Id.  47.  It  was  held  that  the  for- 
feiture to  the  United  States  did  not  en- 
large the  right  of  the  Southern  Pacific 
to  select  lands  in  question,  and  the  de- 
cree was  for  the  United  States.  The 
proposition  laid  down  in  United  States  v. 
Southern  Pac.  R.  Co..  146  U.  S.  570,  36  L. 
Ed.  1091,  13  S.  Ct.  152,  and  United  States- 
V.  Colton  IMarble,  etc.,  Co.,  146  U.  S.  615, 
30  L.  Ed.  1104,  13  S.  Ct.  163,  was  applied 
to  Southern  Pacific  branch  line  indemnity 
lands."  Southern  Pac.  R.  Co.  v.  United 
States,  223  U.  S.  560,  56  L.  Ed.  551,  32  S. 
Ct.   325. 

179-82a.  Land  lying  within  primary 
limits  and  also  with  indemnity  limits. — 
United  States  v.  Southern  Pac.  R.  Co., 
223  U.  S.  565,  56  L.  Ed.  553,  32  S.  Ct.  326. 

179-84.  Reserved  swamp  lands. — Pro- 
ceedings instituted  prior  to  the  definite 
location  of  a  railway,  for  the  purpose  of 
bringing  under  the  operation  of  the 
Swamp  Land  Act  (Act  Sept.  28,  1850,  c. 
84,  9  Stat.  519  [U.  S.  Comp.  St.  1901,  p. 
1586])  certain  lands  within  the  place 
limits  of  the  land  grant  made  to  the  rail- 
way company  by  Act  May  12,  1864,  c.  84, 
13  Stat.  72,  do  not  except  such  lands 
from  the  railway  land  grant  as  being  pre- 
viously reserved,  if  they  were  not  in  fact 
swamp  or  overflowed  lands.  United 
States  V.  Chicago,  etc.,  R.  Co.,  218  U.  S. 
233,  54  L.  Ed.  1015,  31  S.  Ct.  7,  affirming 
decree   (1908),  160  F.  818,  87  C.   C.  A.  592. 


1022 


Vol.  X. 


PUBLIC  LANDS. 


182-192 


land  department  in  so  interpreting  the  statute.-'' 

(hh)  Land  Claims  Arising  under  General  Land  Laws — bbb.  Sufficiency  and 
Validity  of  Claim. — See  note  11. 

ccc.  Effect  of  Liability  to  Subsequent  Cancellation. — See  note   19. 

(m)  Indemnity  Lands — aa.  In  General. — An  indemnity  grant,  like  the  resid- 
uary clause  in  a  will,  contemplates  the  uncertain  and  looks  to  the  future.  What 
a  railroad  is  to  be  indemnified  for  may  be  fixed  as  of  the  moment  of  the  grant, 
but  what  it  may  elect  when  its  right  to  indemnity  is  determined  depends  on 
the  state  of  the  lands  selected  at  the  moment  of  choice.-"^^^ 

Deficiency  Must  First  Appear. — See  note  40. 

Place  of  Selection. — A  selection  of  indemnity  lands  by  the  Northern  Pa- 
cific Railroad  Company,  under  the  Act  of  July  2,  1864,  c.  217,  13  Stat.  365.  and 
the  joint  resolution  of  May  31,  1870,  No.  67,  16  Stat.  378,  is  not  unlawful 
because  the  tract  selected  was  not  on  the  same  side  of  the  railroad  as  the  tract 
lost,  and  was  not  the  nearest  unappropriated  land.^-'^ 

bb.    Vesting  of  Title — Selection  and  Approval. — See  note  43. 


182-2a.    Effect  of  provision  in  treaty. — 

Kindred  z:  United  Pac.  R.  Co.,  225  U.  S. 
582,  56  L.  Ed.  1216,  32  S.  Ct.  780. 

185-11.  Lands  entered  for  pre-emption 
or  homestead. — Unsurveyed  public  land 
within  the  place  limits  of  the  grant  of 
July  2,  1864  (chapter  217,  13  Stat.  365),  to 
the  Northern  Pacific  Railroad  Company, 
which,  at  the  time  of  the  definite  location 
of  the  line,  was  actually  occupied  by  a 
settler  intending  in  good  faith  to  acquire 
title  under  the  homestead'  laws  as  soon 
as  the  land  should  be  surveyed,  was  ex- 
cepted from  the  operation  of  the  land 
grant,  although  such  occupancy  was  not 
evidenced  by  a  record  of  any  kind.  North- 
ern Pac.  R.  Co.  v.  Trodick,  221  U.  S.  208, 
55  L.  Ed.  704,  31  S.  Ct.  607,  affirming  de- 
cree (1908),  Trodick  z'.  Northern  Pac.  Ry. 
Co.,  164  F.  913,  90  C.  C.  A.  653. 

A  delay  beyond  the  time  fixed  by  Act 
May  14,  1880,  c.  89,  21  Stat.  140  (U.  S. 
Comp.  St.  1901,  p.  1392),  within  which  a 
homesteader  must  file  his  application 
after  a  survey  of  the  land,  can  not  inure 
to  the  benefit  of  a  railway  company  claim- 
ing the  land  under  the  land  grant  of  July 
2,  1864  (Act  July  2,  1864,  c.  217,  13  Stat. 
365),  on  the  theory  that  it  had  acquired 
an  interest  therein  by  the  mere  definite 
location  of  its  land  at  a  time  when  the 
land  was  in  the  actual  occupancy  of  the 
homestead  settler.  Northern  Pac.  R.  Co. 
z:  Trodick,  221  U.  S.  208,  55  L.  Ed.  704. 
31  S.  Ct.  607,  affirming  decree  in  Trodick 
V.  Northern  Pac.  Ry.  Co.,  164  F.  913.  90 
C.    C.    A.    653. 

187-19.  Effect  of  liability  and  subse- 
quent cancellation. — The  relinquishment  of 
a  homestead  entry  after  final  decision  of 
the  secretary  of  the  interior  in  favor  of 
the  entryman  in  a  contest  with  a  railway 
company  claiming  under  a  subsequent 
selection  of  indemnity  lands  does  not  in- 
ure to  the  benefit  of  the  railway  company, 
in  view  of  the  provision  of  Act  Aug.  5, 
1892,   c.   382,   27    Stat.   390,   confining   such 


selection  to  lands  not  mineral  and  not 
reserved,  "and  to  which  no  adverse  right 
or  claim  shall  have  attached  or  have  been 
initiated,"'  and  such  land,  by  the  express 
provisions  of  Act  May  14,  1880,  c.  89,  21 
Stat.  141  (U.  S.  Comp.  St.  1901,  p.  1393), 
is  open  to  settlement  and  entry.  Judg- 
ment. Donohue  v.  St.  Paul,  M.  &  M.  Ry. 
Co.  (1907),  112  N.  W.  413,  101  Minn.  239, 
affirmed.  St.  Paul,  etc.,  R.  Co.  v.  Dono- 
hue, 210  U.  S.  21,  52  L.  Ed.  941.  28  S. 
Ct.    600. 

191-38a.  Nature  of  indemnity  grant. — 
United  States  v.  Southern  Pac.  R.  Co., 
223  U.   S.  565,  56  L.   Ed.  553.  32   S.   Ct.  326. 

191-40.  Must  be  deficiency  within  place 
limits. — A  valid  basis  is  afi:'orded  for  the 
selection  by  the  Northern  Pacific  Rail- 
road Company  of  lands  within  the  second 
indemnity  limits,  under  the  joint  resolu- 
tion of  May  31,  1870,  No.  67  (16  Stat.  378), 
where  certain  lands  did  not  pass  under 
its  land  grant  of  July  2,  1864,  c.  217,  13 
Stat.  365,  367,  c.  217,  because  they  fell 
within  the  indemnity  limits  of  the  grant 
of  May  5,  1864  (Act  May  5,  1864,  c.  79,  13 
Stat.  64),  in  aid  of  another  railroad,  as 
adjusted  to  the  line  of  definite  location  of 
that  road,  and  were  selected  by  that  road 
after  the  date  of  the  Northern  Pacific 
land  grant,  but  prior  to  the  definite  loca- 
tion of  that  line  of  road.  Hoyt  v. 
Weyerhaeuser,  161  F.  324,  88  C.  C.  404; 
Weverhaeuser  z:  Hoyt,  219  U.  S.  380,  55 
L.    Ed.   258,   31    S.    Ct.   300. 

192-42a.  Place  of  selection. — Weyer- 
haeuser z:  Hoyt,  219  U.  S.  380,  424,  55  L. 
Ed.  258.  31    S.  Ct.  300. 

192-43.  Vesting  of  title — Selection  and 
approval. — "In  Oregon,  etc.,  R.  Co.  v. 
United  States,  No.  1,  189  U.  S.  103,  47  L. 
Ed.  726,  23  S.  Ct.  615,  the  court  said  (p. 
112):  'Now,  it  has  long  been  settled  that 
while  a  railroad  company,  after  its  definite 
location,  acquires  an  interest  in  the  odd- 
numbered  sections  within  its  place  or 
granted  limits,  which  interest  relates  back 


1023 


194-195 


PUBLIC  LANDS. 


Vol.  X. 


cc.    Land  Subject  and  Amount — (  bb  )    Land  Subject. — See  note  51. 

dd.    JJ'ithdran-al  of  Lideinnity  Lands. — See  note  54. 

Effect  of  Unauthorized  Withdrawal. — The  withdrawal  from  sale,  pre- 
emption, or  settlement  of  lands  within  the  indemnity  limits  of  the  Railway 
Land  Grant  Act  of  March  3,  1863  (12  Stat,  at  L.  ^72),  which  withdrawal 
was  unauthorized,  because  the  road  had  not  then  been  definitely  located,  does 
not  prevent  a  homestead  claim  or  right  from  attaching  to  such  land  before  defi- 


to  the  date  of  the  granting  act,  the  rule  is 
otherwise  as  to  lands  within  indemnity 
limits.  As  to  lands  of  the  latter  class, 
the  company  acquires  no  interest  in  any 
specific  sections  until  a  selection  is  made 
with  the  approval  of  the  land  department; 
and  then  its  right  relates  to  the  date  of 
the  selection.  And  nothing  stands  in  the 
way  of  a  disposition  of  indemnity  lands, 
prior  to  selection,  as  congress  may  choose 
to  make.' "  Weyerhaeuser  z'.  Hoyt,  219 
U.   S.   380,   55   L.    Ed.   258,   31   S.   Ct.   300. 

"The  doctrine  thus  affirmatively  estab- 
lished by  this  court,  as  we  have  said,  has 
been  the  rule  applied  by  the  land  depart- 
ment in  the  practical  execution  of  land 
grants  from  the  beginning."  Weyer- 
haeuser r.  Hoyt,  219  U.  S.  380,  55  L.  Ed. 
258,  31  S.  Ct.  300,  citing  Porter  z:  Lan- 
drum,  31  Land  Dec.  352;  Re  Southern  P. 
R.  Co.,  32  Land  Dec.  51;  Re  Santa  Fe  P. 
R.  Co.,  33  Land  Dec.  161;  Eaton  v.  North- 
ern P.  R.  Co.,  33  Land  Dec.  426;  Santa  Fe 
P.  R.  Co.  ZK  Northern  P.  R.  Co..  37  Land 
Dec.  669. 

194-51.  Lands  to  which  pre-emption 
and  homestead  rights  attached. — An  at- 
tempt oy  a  railway  company  to  select  lieu 
lands  within  the  indemnity  limits  of  the 
grant  of  July  4,  1866,  which  was  unsuc- 
cessful because  such  selection  was  rejected 
by  the  secretary  of  the  interior  for  the 
failure  of  the  railway  company  to  furnish 
a  list  of  the  lands  lost  within  the  place 
limits  for  wdiich  the  lieu  lands  were  se- 
lected, can  not  carry  back  the  title  of  those 
claiming  under  the  railway  company  un- 
der a  second  selection,  made  when  the 
land  in  question  was  in  the  actual  bona 
fide  occupancy  of  a  person  claiming  it  as 
a  homestead.  Osborn  v.  Froyseth,  216  U. 
S.  571,  54  L.  Ed.  619,  30  S.  Ct.  420. 

The  selection  of  land  within  the  indem- 
nity limits  of  the  railroad  land  grant  of 
July  4,  1866,  to  supply  deficiencies  in  the 
place  limits,  confers  no  rights  upon  the 
railway  company  as  against  a  person  then 
actually  occupying,  in  good  faith,  a  por- 
tion of  the  lands  so  selected,  and  claiming 
it  as  a  homestead,  although  his  entry  was 
subsequently  rejected  by  the  land  depart- 
ment, either  because  the  secretary  of  the 
interior  had,  though  without  authority, 
withdrawn  the  lands  from  settlement,  or 
because  of  defects  in  his  application. 
Judgment  (1909)  119  N.  W.  1135,  107 
Minn.  568,  affirmed.  Osborn  z'.  Froyseth, 
216  U.  S.  571,  54  L.   Ed.  019,  30  S.   Ct.  420. 

"It  had,  by  such  settlement,  been  segre- 


gated from  the  lands  subject  to  selection, 
and  in  a  contest  between  stich  a  home- 
steader and  those  claiming  under  selec- 
tions subsequently  made  of  lieu  lands,  the 
claim  of  the  former  is  the  better  claim. 
Under  the  Act  of  May  14,  1880  (chap.  89, 
21  Stat,  at  L.  141,  §  3,  U.  S.  Comp.  Stat. 
1901.  p.  1393),  the  right  of  one  settling  in 
good  faith  for  the  purpose  of  claiming  a 
homestead  'relates,  back  to  tlie  date  of  set- 
tlement.' "  Osborn  v.  Froyseth,  216  U.  S. 
571,  54  L.  Ed.  619.  30  S.  Ct.  420,.  citing  Nel- 
son v.  Northern  Pac.  R.  Co.,  188  U.  S.  108, 
47  L.  Ed.  406,  23  S.  Ct.  302;  Sjoli  r.  Dres- 
chel,  199  U.  S.  564,  50  L.  Ed.  311,  26  S.  Ct. 
154;  St.  Patil,  etc.,  R.  Co.  v.  Donohue,  210 
U.  S.  21,  52  L.  Ed.  941,  28  S.  Ct.  600. 

"The  doctrine  that,  until  selection  made, 
no  title  vests  in  any  indemnity  lands,  has 
been  recognized  in  several  decisions  of 
this  court.  Thus,  in  Ryan  v.  Railroad 
Co.,  99  U.  S.  382,  386,  25  L.  Ed.  305,  in  con- 
sidering a  graftt  of  land  by  congress,  in 
aid  of  the  construction  of  a  railroad  sim- 
ilar in  its  general  features  to  the  one  in 
this  case,  the  court  said:  'Under  this 
statute,  when  the  road  was  located  and 
the  maps  were  made,  the  right  of  the  com- 
pany to  the  odd  sections  first  named  be- 
came ipso  facto  fixed  and  absolute.  With 
respect  to  the  "lieu  lands,"  as  they  are 
called,  the  right  was  only  a  float,  and  at- 
tached to  no  specific  tracts  until  the  se- 
lection was  actually  made  in  the  manner 
prescribed.'  "  Osborn  v.  Froyseth,  216  U. 
S.  571,  54  L.  Ed.  619,  30  S.  Ct.  420. 

"In  Sjoli  V.  Dreschel,  199  U.  S.  564,  566, 
50  L.  Ed.  311,  26  S.  Ct.  154,  this  court  said: 
'That  up  to  the  time  such  approval  is 
given,  lands  within  indemnity  limits,  al- 
though embraced  by  the  company's  '  list 
of  selections,  are  subject  to  be  disposed  of 
by  the  United  States,  or  to  be  settled  upon 
and  occupied  under  the  pre-emption  and 
homestead  laws  of  the  United  States.'  " 
Osborn  z'.  Froyseth,  216  U.  S.  57 j,  54  L. 
Ed.  619,  30  S.   Ct.  420. 

195-54.  Authority  to  withdraw. — The 
secretary  of  the  interior  had  no  authority 
to  withdraw  from  settlement  lands  within 
the  indemnity  limits  of  the  Hastings  & 
Dakota  Railway  land  grant  of  July  4,  1866, 
in  advance  of  a  selection  approved  by  him, 
based  upon  ascertained  losses  in  the  place 
limits.  Judgment  (1909)  119  N.  W.  1135, 
107  Minn.  568,  affirmed.  Osborn  f.  Froy- 
seth, 216  U.  S.  571,  54  L.  Ed.  619,  30  S.  Ct. 
420. 


1024 


\^ol.  X. 


PUBLIC  LANDS. 


195-205 


nite  location,  and  such  right  will  be  protected  as  against  the  subsequent  selec- 
tion of  the  land  by  the  railway  company. ''■*'* 

Lawful  Withdrawal. — Lands  lawfully  embraced  in  a  list  of  indemnity 
selections  filed  by  the  Northern  Pacific  Railroad  Company  with  the  land  de- 
l^artment,  and  subsequently  approved  by  the  secretary  of  the  interior,  were  not 
subject  to  entry  or  purchase  under  the  federal  land  laws  during  the  internii 
between  the  date  of  filing  and  the  date  of  such  approval. ^-^'^ 

(n)  Conflicting  Grants  and  Claims — bb.  Railroad  Grants  Conflicting  ivith 
Private  Entries. — See  note  60. 

(r)  Rights  of  Purchasers  under  Railroad  Land  Grants — bb.  Recovery  of 
Purchase  Price  from  Railroad. — See  note  98. 

(3)  Grant  for  Right  of  U\i\\  Station  Purposes,  etc. —  (c)  Lands  Subject 
and  Location  of  Line — aa.  Lands  Subject — (bb)  Lands  Subject  to  Existing 
Claims. — The  grant  to  the  Union  Pacific  Railroad  Company  by  the  Act  of  July 
3,  1866,  of  a  right  of  way  through  the  "public  lands,"  did  not  give  that  com- 
pany the  right  to  run  its  road  through  lands  which,  at  the  time  of  the  passage 
of  that  act,  were  in  the  actual  occupation  of  an  entryman  under  the  homestead 
laws.^^ 


195-54a.      Unauthorized      withdrawal. — 

Brandon  z:  Ard.  211  U.  S.  11,  53  L.  Ed.  68, 
29  S.  Ct.  1. 

The  withdrawal  from  sale,  pre-emption, 
or  settlement  of  lands  within  the  indem- 
nity limits  of  the  Railway  Land  Grant  Act 
of  March  3,  1863  (12  Stat.  772,  c.  98).  which 
withdrawal  was  nnanthorized,  because  the 
road  had  not  then  l^een  definitely  located, 
does  not  prevent  a  homestead  claim  or 
right  from  attaching  to  such  land  before 
definite  location,  and  such  right  will  be 
protected  as  against  the  subsequent  se- 
lection of  the  land  by  the  railway  com- 
pany. Judgment  (1906)  87  P.  366,  74  Kan. 
424,  118  Am.  St.  Rep.  321,  affirmed.  Bran- 
don V.  Ard,  211  U.  S.  11,  53  L.  Ed.  68,  29 
S.  Ct.  1. 

195-54b.  Lawful  withdrawal. — Weyer- 
haeuser V.  Hoyt,  219  U.  S.  380,  55  L.  Ed. 
258,  31  S.  Ct.  300,  reversing  decree  Hoyt 
V.  Weyerhaeuser  (1908)  161  F.  324,  88  C. 
C.  A.  404;  Campbell  t'.  Weyerhaeuser,  219 
U.  S.  424,  55  L.  Ed.  279.  31  S.  Ct.  321,  af- 
firming decree  (1908)  161  F.  332,  88  C  C. 
A.  412;  Northern  Pac.  R.  Co.  v.  Wass, 
219  U.  S.  426,  55  L.  Ed.  280,  31  S.  Ct.  321, 
reversing  judgment  (1908)  117  N.  W. 
1126,   105    Minn.   525. 

197-60.  Railroad  grants  conflicting  with 
private  entry. — Lands  within  the  indem- 
nity limits  of  the  land  grant  to  the 
Northern  Pacific  Railroad  Company  could 
not  be  claimed  under  the  provision  of 
Act  July  1,  1898,  c.  546,  30  Stat.  620,  en- 
acted to  settle  the  disputes  arising  out 
of  conflicting  rulings  of  the  Land  De- 
partment with  reference  to  the  eastern 
terminus  of  the  railroad  as  affecting  its 
land  grant,  by  a  person  relying  upon  an 
alleged  purchase  under  tlie  timl)er  and 
stone  act,  where,  prior  to  January  1,  1898, 
nothing  more  had  been  done  than  to  file 
application  for  the  land.  Hoyt  v.  Weyer- 
haeuser,  161   Fed.  324,  88  C.  C.  404;  Wey- 


erhaeuser V.  Hoyt,  219  U.  S.  380,  424,  55 
L.    Ed.  258,  31   S.   Ct.   300. 

204-98.  Recovery  of  purchase  price 
from  railroad. — A  railway  company  will 
not  be  required  to  account  to  the  United 
States  in  equity  for  the  proceeds  of  the 
sale  of  lands  patented  to  the  company  as 
within  the  place  limits  of  the  railway  land 
grant  made  by  Act  May  12,  1864,  c.  84,  13 
Stat.  72,  on  the  theory  that  what  was 
done  under  or  in  execution  of  the  Swamp 
Land  Act  (Act  Sept.  28,  1850,  c.  84,  9  Stat. 
519  [U.  S.  Comp.  St.  1901,  p.  1586])  prior 
to  the  filing  of  the  map  of  definite  loca- 
tion, ooerated  to  except  su'^h  land--  +roM 
the  railway  land  grant  as  being  previously 
reserved,  where  to  grant  such  relief  would 
be  to  disregard  a  subsequent  decision  of 
the  commissioner  of  the  general  land  of- 
fice, made  after  full  notice  and  hearing, 
that  such  lands  were  not  in  fact  swamp 
or  overflowed,  and  that  neither  the  state 
nor  any  of  its  counties  claiming  them  as 
such  were  entitled  to  said  lands,  which 
decision  has  never  been  appealed  from, 
and  still  remains,  after  nearly  30  years,  un- 
reversed and  unmodified.  United  States  z'. 
Chicago,  etc.,  R.  Co.,  218  U.  S.  233,  54  L 
Ed.  1015,  31  S.  Ct.  7,  affirming  decree 
(1908)    160   F.  818,  87   C.  C.  A.  592. 

205-9a.  Land  held  under  homestead  en- 
try.—Union  Pac.  R.  Co.  z:  Harris,  215  U. 
S.  386,  54  L.   Ed.  246,  30  S.   Ct.   138. 

"As  stated  in  Newhall  v.  Sanger,  92  U. 
S.  761,  763,  23  L-  Ed.  769:  'The  words 
"pulilic  lands''  are  habitually  used  in  our 
legislation  to  descril^e  such  as  are  sub- 
ject to  sale  or  other  disposal  under  gen- 
eral laws.' "  Union  Pac.  R.  Co.  v.  Har- 
ris, 215  U.  S.  386,  54  L.  Ed.  246,  30  S.  Ct. 
138.  See,  also.  Barker  z:  Harvey,  181  U. 
S.  481,  490,  45  L.  Ed.  963,  21  S.  Ct.  690; 
Minnesota  z'.  Hitchcock,  185  U.  S.  373, 
391,  46  L.   Ed.  954,  22  S.   Ct.  650. 


12   U    S    Enc— 65 


1025 


206-208 


PUBLIC  LANDS. 


Vol.  X. 


(d)  Vesting  of  Title  and  Estate  Acquired — aa.  J^esting  of  Title. — Under 
Special  Statute. — See  note  13. 

General  Act  of  1875. — See  note  17. 

(h)     Forfeiture,  Abandonment  and  Repeal. — See  note  29. 

(i)  Conflicting  Claims  and  Superiority. — When  the  railroad  adopts  a  route 
definitely  and  then  causes  a  map  of  such  a  route  to  be  filed  in  the  land  office  of 
the  district,  in  duplicate,  and  then  filed  with  the  secretary  of  the  interior,  a 
right  is  thereby  initiated  which,  until  disposed  of,  rightly  precludes  the  crea- 
tion of  a  later  right,  and  gives  to  the  company,  as  prior  in  time,  priority  in 
right.^^^  The  initiatory  act,  to  which  the  final  act  of  approval  relates,  is  the 
filing  with  the  secretary  of  the  interior  of  the  map  of  definite  location.  The 
mere  surveying  and  staking  of  a  route  is  the  tentative  act  of  the  railroad.  It 
might  at  will  select  a  different  route  and  move  its  stakes.^^^ 


206-13.  Under  special  statute. — "True, 
as  held  in  Railroad  Co.  v.  Baldwin,  103 
U.  S.  426,  26  L.  Ed.  578;  Bybee  tj.  Ore- 
gon, etc.,  R.  Co.,  139  U.  S.  663,  679.  35  L. 
Ed.  305,  11  S.  Ct.  641;  Northern  Pac.  R. 
Co.  V.  Hasse,  197  U.  S.  9,  10,  49  h.  Ed.  642. 
25  vS.  Ct.  305,  the  grant  of  the  right  of 
way  is  absolute,  and  taking  efifect  as  of 
the  date  of  the  grant.  But  that  date  must 
be  found  in  an  act  prescribing  the  finally 
adopted  route."  Union  Pac.  R.  Co.  v. 
Harris,  215  U.  S.  386,  54  L.  Ed.  246,  30  S. 
Ct.  138. 

207-17.  General  Grant  of  1875.— No 
rights  under  Act  March  3,  1875,  c.  152,  18 
Stat.  482  [U.  S.  Comp.  St.  1901,  p.  1568], 
granting  rights  of  way  to  railroads,  can 
be  initiated  before  a  profile  map  of  the 
road  has  been  filed  in  the  local  land  office 
and  approved  by  the  secretary  of  the  in- 
terior— unless  actual  construction  is 
sooner  begun — in  view  of  the  provisions 
of  section  4  of  that  act,  that  any  railroad 
company  desiring  to  secure  the  benefit  of 
the  statute  shall,  within  a  definite  time 
after  location,  file  such  profile  map  with 
the  register  of  the  local  land  office,  that 
upon  approval  thereof  by  tiie  secretary 
of  the  interior  the  same  shall  be  noted 
upon  the  plats  in  such  office,  and  that 
"thereafter"  all  such  lands  over  which 
such  right  of  way  shall  pass  shall  be  dis- 
posed of  subject  to  such  right  of  way. 
Judgment,  Doughty  v.  Minneapolis,  St. 
P.  &  S.  S.  M.  Ry.  Co.  (N.  D.  1906),  107  N. 
W.  971.  affirmed.  Minneapolis,  etc.,  R. 
Co.  V.  Doughty,  208  U.  S.  251,  52  L.  Ed. 
474,   28   S.   Ct.  291. 

"A  right  of  way  is  granted,  but  to  se- 
cure it  three  things  are  necessary:  (l) 
Location  of  the  road;  (2)  filing  a  profile 
of  it  in  the  local  land  office;  and  (3)  the 
approval  thereof  by  the  secretary  of  the 
interior,  to  be  noted  upon  the  plats  in  the 
local  office.  It  is  after  these  things  are 
done  that  the  statute  fixes  the  right  of 
the  railroad  and  subjects  the  disposition 
of  the  land,  under  the  land  laws,  to  that 
right."  Minneapolis,  etc.,  R.  Co.  f. 
Doughty,  208  U.  S.  251,  52  L.  Ed.  474,  28 
S.  Ct.  291. 


208-29.  Forfeiture  and  revocation  of 
grant. — A  breach  of  the  conditions  upon 
wliich  a  railway  right  of  way  was  granted 
in  pra?senti  by  Act  June  4,  1898,  c.  377,  30 
Stat.  430,  viz.,  that  the  railway  company 
shall  commence  grading  v.'ithin  six 
months  after  the  approval  of  its  map  of 
definite  location  or  its  location  shall  be 
void,  and  that  the  right  therein  granted 
shall  be  forfeited  unless  the  company 
shall  construct  25  iniles  of  road  within 
two  years  after  the  passage  of  the  act, 
does  not  of  itself  work  a  forfeiture,  but. 
such  conditions  being  conditions  subse- 
quent, there  can  be  no  forfeiture  without 
some  appropriate  judicial  or  legislative 
action.  Spokane,  etc.,  R.  Co.  v.  Washing- 
ton, etc..  R.  Co.,  219  U.  S.  166,  55  L.  Ed. 
159.  31  S.  Ct.  182,  affirming  decree  (1908), 
95  P.  64,  49  Wash.  280. 

208-30a.  When  rights  initiated. — Stal- 
ker r.  Oregon,  etc.,  R.  Co.,  225  U.  S.  142, 
56  L.  Ed.  1027,  32  S.  Ct.  636. 

"Any  construction  of  the  4th  section  of 
the  Act  of  1875  which  would  permit  rights 
initiated  while  the  secretary  of  the  inte- 
rior was  considering  the  approval  of  a  map 
of  location  of  a  right  of  way  over  public 
lands,  or  a  plat  of  survey  of  depot 
grounds,  to  prevail  over  rights  resulting 
from  the  prior  commencement  of  pro- 
ceedings for  the  acquisition  of  title,  would 
be  in  confiict  with  the  settled  practice  of 
the  land  department  and  the  repeated  rul- 
ings of  this  court  under  other  acts." 
Stalker  :■.  Oregon,  etc.,  R.  Co.,  225  U.  S. 
142,  56  L.  Ed.  1027,  32  S.  Ct.  636,  citing 
Sheplev  7,'.  Cowan,  91  U.  S.  330,  23  L.  Ed. 
424;  Wcverhaeuser  v.  Hoyt,  219  U.  S.  380, 
55  L.  Ed'.  258.  31   S.  Ct.  300. 

208-30b.  Relation  back  of  approval. — 
Stalker  v.  Oregon,  etc..  R.  Co.,  225  U.  S. 
142,   56   L.   Ed.   1027,   32   S.   Ct.   636. 

The  approval  by  the  secretary  of  the 
interior  of  a  plat  of  station  grounds, 
filed  conformably  to  the  Act  of  March  3, 
1975  (18  Stat,  at  L.  482,  chap.  152,  U.  S. 
Comp.  Stat.  1901,  p.  1568),  §  4,  by  a  rail- 
way company  seeking  to  secure,  in  ad- 
vance of  actual  construction,  the  bene- 
fits   of    the    grant    made    by    that    act    of 


1026 


Vol.  X. 


PUBLIC  LANDS. 


217-228 


h.  School  and  University  Grants  and  Resen'ations — (3)  Lands  Included 
and  Sithject  to  Selection — (c)  Mineral  Lands. — Only  such  saline  lands  as 
should  be  selected  as  a  part  of  the  other  lands  granted  and  not  specifically 
located  were  granted  to  the  state  of  Utah  by  the  provisions  of  the  enabling  act 
(Act  July  16,  1894,  c.  138,  §  8,  28  Stat.  109),  granting  to  the  state  for  univer- 
sity purposes  public  lands  to  the  extent  of  two  townships  in  quantity,  and  in 
addition  110,000  acres,  to  be  selected  and  located  as  therein  provided,  "and  in- 
cluding all  the  saline  lands  in  said  state. "^^^ 

(11)  Sale  and  Lease  of  School  Land — (c)  Disposition  of  Proceeds. — No 
particular  institutions  are  entitled  to  the  grants  and  appropriations  made  re- 
spectively by  Act  of  July  2,  1862,  granting  lands  or  land  scrip  to  the  several 
states  for  the  endowment,  support,  and  maintenance  of  at  least  one  college^ 
where  the  leading  object  shall  be  to  teach  agriculture  and  the  mechanic  arts, 
and  by  Act  of  Aug.  30.  1890,  appropriating  annually  certain  sums  to  each  state 
and  territory  for  the  more  complete  endowment  and  maintenance  of  such  col- 
leges ;  but  the  states  take  the  property,  charged  with  the  duty  to  devote  it  to 
the  purpose  named."^^ 

(e)  Right  to  Purchase — Purpose  of  Purchase. — Applications  to  the  states  of 
California  and  Oregon  to  purchase  land  acquired  by  those  states  from  the  United 
States  for  the  benefit  of  the  public  schools  are  fraudulent,  if  the  applicants  do 
not  intend  to  purchase  the  land  for  their  own  benefit  and  have  made  previous 
contracts  or  agreements  to  sell  the  land."'' 

i.  Szuamp  and  Overfozved  Land  Grants — (5)  Identification,  Survey  and  Se- 
lection—  (a)  Identification— (hh)  By  Whom  Made  and  Sufficiency  of. — See 
note  25. 

k.  Oregon  Donation  Acts. — See  note  51. 


grounds  adjacent  to  its  right  of  way,  re- 
lates liack  to  the  date  of  filing,  so  as  to 
cut  off  any  rights  therein  founded  on  a 
pre-emption  claim  filed  pending  such  ap- 
proval, and  subsequently  patented,  al- 
though the  register  of  the  local  land  of- 
fice may  have  failed,  after  a  copy  of  the 
approved  plat  had  been  submitted  to  him, 
to  mark  the  proper  township  plat  and 
tract  books,  as  required  by  regulations 
of  the  land  department,  so  as  to  show  the 
station  land  selected.  vStalker  v.  Oregon, 
etc.,  R.  Co.,  225  U.  S.  142,  56  L.  Ed.  1027, 
32  S.  Ct.  636. 

217-81a.  Saline  lands.— Montello  Salt 
Co.  V.  Utah,  321  U.  S.  452,  55  L.  Ed.  810, 
31  S.  Ct.  706,  reversing  98  P.  540,  34  Utah 
458. 

220-7a.  Disposition  of  proceeds — Ben- 
eficiaries.— Wyoming  Agriculture  College 
i:  Irvine.  206  U.  S.  278,  51  L.  Ed.  1063, 
27  S.  Ct.  613,  affirming  84  P.  90,  14  Wyom- 
ing 318. 

220-7b.  Right  to  purchase — Purpose  of 
purchase. — Hyde  v.  United  States,  35 
App.  D.  C.  451,  writ  of  certiorari  granted. 
Hyde  r.  United  States.  218  U.  S.  681,  54 
L.   Ed.  1207,  31   S.  Ct.  228. 

222-25.  By  whom  made  and  sufficiency 
of. — "Referring  to  the  2d  section  of  that 
act,  Mr.  Justice  Miller,  speaking  for  the 
court  in  French  v.  Fyan,  93  U.  S.  169,  23 
L.  Ed.  812,  said:  'It  was  under  the  power 
conferred  by  this  section  that  the  patent 
was  issued  under  which   defendant  holds 


the  land.  We  are  of  the  opinion  that  this 
section  devolved  upon  the  secretary,  as 
the  head  of  the  department  which  admin- 
istered the  affairs  of  the  public  lands,  the 
duty,  and  conferred  on  him  the  power,  of 
determining  what  lands  were  of  the  de- 
scription granted  by  that  act,  and  made 
his  office  the  tribunal  whose  decision  on 
that  subject  was  to  be  controlling.'  To 
the  same  effect,  on  this  point,  are  Ehr- 
hardt  i\  Hogaboom,  115  U.  S.  67,  68,  29  L. 
Ed.  346,  5  S.  Ct.  1157,  and  Rogers  Loco- 
motive Mach.  Works  v.  American  Emi- 
grant Co.,  164  U.  S.  559,  571,  41  L.  Ed. 
552.  17  S.  Ct.  188.  In  the  latter  case  the 
court  said:  'The  identification  of  lands 
embraced  by  the  Swamp  Land  Act  was 
therefore  necessary  before  the  state  could 
claim  a  patent  or  exercise  absolute  con- 
trol of  them.'  "  United  States  v.  Chicago, 
etc.,  R.  Co.,  218  U.  S.  233,  54  L.  Ed.  1015. 
31   S.  Ct.  7. 

228-51,  Oregon  Donation  Act  s. — A 
claimant  under  the  Oregon  Donation  Act 
of  September  27,  1850  (9  Stat.  496.  c.  76), 
who  had  not  made  final  proof  under  that 
act,  but  had  occupied  the  land  for  more 
than  four  years,  could  make  a  valid  deed 
of  his  rights  after  the  Amendatory  .Act 
(Act  July  17.  1854  [10  Stat.  305.  c.  84],  § 
2),  by  which  the  proviso  in  section  4  of 
the  earlier  act,  making  void  contracts  for 
the  sale  of  land  before  patent,  was  re- 
pealed, "provided  that  no  sale  shall  be 
deemed  valid  unless  the  vendor  shall  have 


1027 


230-245 


PUBLIC  LANDS. 


Vol.  X. 


p.  Reservations — (3)  Forest  Reserves. — Congress,  in  the  exercise  of  its  con- 
trol of  the  property  of  the  United  States,  under  U.  S.  Const,  art.  4,  §  3,  could 
constitutionally  enact  the  Act  of  March  3,  1891,  under  which  public  forest 
reservations  may  be  established  on  the  public  domain  without  the  consent  of 
the  state  where  the  land  lies. •■5'*'' 

Lien  Lands. — And  the  land  department  had  the  power  to  adopt  reasonable 
rules  and  regulations  for  the  administration  of  the  Act  of  June  4,  1897,  au- 
thorizing the  selection  of  public  lands  in  lieu  of  lands  relinquished  in  a  forest 
reserve.^'^'' 

q.  Grants  for  Parks. — The  secretary  of  the  interior  can  not  make  the  exer- 
cise by  an  owner  and  lessee  of  lands  within  the  Yosemite  National  Park  of  his 
right  to  pasture  his  cattle  upon  such  lands,  and  to  use  the  toll  roads  leading 
thereto,  conditional  upon  his  compliance  with  certain  rules  and  regulations 
prescribed  by  the  secretary  for  the  government  of  the  park,  as  to  marking  and 
defining  the  boundaries,  or  obtaining  the  written  permission  of  the  superin- 
tendent.^^'^ 

4.  The  Land  Departme;nt — c.  Land  Department  Subject  to  JVill  of  Con- 
gress.— See  note  89. 

h.  Reviezv,  Cancellation  and  Correction  in  Land  Department — (3)  Reviezv 
of  Decision  of  Predecessor. — See  note  41. 

i.  Operation  and  Effect  of  Decisions  of  Land  Department — (1)  Conclusive- 
ness— Direct  and  Collateral  Attack — (b)  Questions  Concluded  or  Reviezmble 
— bb.    Construction  of  Lazv. — See  note  50. 


resided  four  years  upon  the  land."  Judg- 
ment (1907).,  91  P.  15,  46  Wash.  585,  af- 
firmed. Sylvester  v.  Washington,  315  U. 
S.  80,  54  L.   Ed.  101,  .30   S.   Ct.  25. 

230-58a.  Power  of  congress  to  create 
forest  reserve. — Light  r. .  United  States, 
220  U.   S.  523,  55   L.^Ed.  570,  31  S.  Ct.  485. 

230-58b.  Lien  lands. — Roughton  r. 
Knight,  219  U.  S.  537.  55  L.  Ed.  326,  31  S. 
Ct.  297. 

Duty  to  make  selection. — An  owner  of 
patented  land  in  a  forest  reserve  whose 
deed  to  the  United  States,  made  in  con- 
templation of  an  exchange  under  Act 
June  4,  1897,  30  Stat.  36  (U.  S.  Comp.  St. 
1901,  p.  1541),  was  returned  because  not 
accompanied  by  a  selection  of  lien  lands, 
as  required  by  the  regulations  and  prac- 
tice of  the  land  department,  had  no  vested 
right  to  the  exchange  which  would  be 
paved  bv  the  exception  in  the  repealing- 
act  of  Marcli  3,  1905  (chapter  1495,  33 
Stat.  1264  [U.  S.  Comp.  St.  Supp.  1909,  p. 
581]),  in  favor  of  selections  theretofore 
made,  and  of  existing  contracts  with  the 
secretary  of  the  interior.  Roughton  z'. 
Knight,  219  U.  S.  537,  55  L.  Ed.  326,  31  S. 
Ct.  297,  affirming  decree  (1909),  103  P. 
844,  156  Cal.  123. 

231-59a.  Power  of  secretary  of  interior 
over  owner  within  park  limits. — Curtin  r. 
Benson,  222  U.  S.  78,  56  L.  Ed.  102,  32  S. 
Ct.  31,  reversing  158  Fed.  383. 

236-89.  In  regard  to  claims  under  Tim-" 
her  and  Stone  Act. — The  authority  of  the 
commissioner  of  the  general  land  office 
under  Timber  and  Stone  Act  June  3,  1878, 
C.  151,  §  3,  20  Stat.  89  [U.  S.  Comp.  St. 
1901,  p.  1545],  to  prescribe  regulations  to 


carry  out  the  provisions  of  that  act,  does 
not  embrace  the  power  to  require  an  ap- 
plicant to  make  oath  on  final  hearing  of 
his  bona  fides  and  of  the  absence  of  con- 
tract or  agreement  in  respect  to  the  title, 
which  congress  has  in  that  act,  by  express 
intendment,  excluded  from  the  require- 
ments to  be  observed  on  such  final  hear- 
ing. Williamson  r.  United  States,  207  U. 
S.  425,  52  L.  Ed.  278,  28  S.  Ct.  163. 

The  concluding  portion  of  §  3  of  the 
Timber  and  Stone  Act  provides  that  "ef- 
fect shall  be  given  to  the  foregoing  pro- 
visions of  this  act  by  regulations  to  be 
prescribed  by  the  commissioner  of  the 
general  land  office.''  But  this  power 
must,  in  the  nature  of  things,  be  con- 
strued as  authorizing  the  coinmissioner 
of  the  general  land  ofiice  to  adopt  rules 
and  regulations  for  the  enforcement  of 
the  statute,  and  can  not  be  held  to  have 
authorized  him,  by  such  exercise  of 
power,  to  virtually  adopt  rules  and  reg- 
ulations destructive  of  rights  which  con- 
gress had  conferred.  Williamson  v. 
United  States.  207  U.  S.  425,  52  L.  Ed.  278, 
28  S.  Ct.  163. 

243-41.  Review  of  decisions  of  prede- 
cessor.— The  secretary  of  the  interior, 
having  complete  jurisdiction  of  a  contest 
before  the  land  department,  is  not  bound 
by  prior  findings  of  fact  made  by  his 
predecessor.  Decree  (1907).  88  P.  1054,  18 
Okl.  160,  affirmed.  Greenameyer  7'. 
Coate,  212  U.  S.  434,  53  L.  Ed.  587,  29  S. 
Ct.  345. 

245-50.  Construction  of  law. — The  fed- 
eral supreme  court  will  follow  the  con- 
tintious   construction   of   the  land   depart- 


1028 


Vol.  X. 


PUBLIC  LAXDS. 


245-250 


cc.  Decisions  upon  Questions  of  Fact. — See  note  51. 
dd.  Mixed  Question  of  Law  and  Fact. — See  note  56. 
(d)    Direct  Attack — bb.   At  Lazv  or  in  Equity. — See  note  77. 


ment  that  the  special  provision  for  Lou- 
isiana in  the  Swamp  Land  Grant  Act  of 
March  2,  1849  (9  Stat,  at  L.  352,  chap.  87), 
that  title  shall  vest  in  the  state  on  ap- 
proval of  a  list  of  lands  hj-  iie  '"-c  .ei:  v 
of  the  interior,  was  not  affected  by  the 
general  clause  of  the  Act  of  September 
28,  1850  (9  Stat,  at  L.  519,  chap.  84), 
granting  swamp  lands  to  Arkansas,  to 
vest  only  upon  the  issuance  of  a  patent, 
that  the  provisions  of  this  act  be  ex- 
tended to  and  their  benefits  be  conferred 
upon  each  of  the  other  states  in  which 
such  swamp  and  overflowed  lands  may 
be  situated.  Louisiana  v.  Garfield,  211  U. 
S.  70,  53  L.  Ed.  92,  29  S.  Ct.  31.  See  post, 
STATUTES. 

245-51.  Decision  upon  question  of  fact. 
— Tlie  conclusion  as  to  ultimate  facts  fi- 
nally reached  by  the  land  department 
must  be  accepted  by  the  courts,  although 
differing  from  the  conception  of  such 
facts  entertained  by  the  department  at 
previous  stages  of  the  controversy.  De- 
cree (1907),  88  P.  1054,  18  Okl.  160,  af- 
firmed. Greenameyer  z'.  Coate.  212  U.  S. 
434,  53  L.   Ed.  587,  29   S.   Ct.  345. 

The  courts  must  assume  that  the  facts 
which,  under  the  joint  resolution  of  May 
31,  1870,  Xo.  67,  16  Stat.  378,  establishing 
the  second  indemnity  limits  of  the  land 
grant  to  the  Northern  Pacific  Railroad 
Company,  must  appear  in  order  to  enti- 
tle that  company  to  the  lands  selected  as 
indemnit)'  lands,  were  shown  to  the  sat- 
isfaction of  the  secretary  of  the  interior, 
where  he  has  approved  the  company's  se- 
lections. Weyerhaeuser  v.  Hoyt,  219  U. 
S.  380,  53  L.  Ed.  258,  31  S.  Ct.  300.  re- 
versing decree  Hoyt  v.  Weyerhaeuser 
(1908).  161   F.  324. 

''The  decision  of  the  land  department 
was  not  rested  solely  upon  the  fact  that 
White's  former  application  was  filed  a 
few  hours  before  that  of  the  trustee  for 
the  occupants  of  the  town  site,  but  rather 
chiefly  up6n  the  priority  of  the  former's 
equitable  rights.  So  far  as  such  de- 
cision involves  questions  of  fact,  it  is 
conclusive  upon  the  courts."  Whitcomb 
z:  White.  214  U.  S.  15.  53  L.  Ed.  889,  29 
S.  Ct.  599,  citing  Johnson  t'.  Towsley,  13 
Wall.  72.  86.  20  L.  Ed.  485;  Shepley  v. 
Cowan.  91  U.  S.  330,  340,  23  L.  Ed.  424: 
Marquez  r.  Frisbie,  101  U.  S.  473,  476,  25 
L.  Ed.  800;  Quinby  v.  Conlan.  104  U.  S. 
425,  426,  26  L.  Ed.  800;  Burfenning  z: 
Chicago,  etc.,  R.  Co..  163  U.  S.  321.  323. 
41  L.  Ed.  175,  16  S.  Ct.  1018;  De  Cambra 
v.  Rogers,  189  U.  S.  119,  120.  47  L.  Ed.  734. 
23    S.    Ct.    519. 

246-56.  Mixed  question  of  law  and 
fact. — ''And  this  rule  is  applied  in  cases 
where   there   is   a  mixed   question   of  law 


and  fact,  unless  the  court  is  able  to  so 
separate  the  question  as  to  see  clearly 
what  and  where  the  mistake  of  law  is. 
As  said  by  Air.  Justice  Miller  in  Marquez 
I'.  Frisbie,  supra,  p.  476:  'This  means, 
and  it  is  a  sound  principle,  that  where 
there  is  a  mixed  question  of  law  and  of 
fact,  and  the  court  can  not  so  separate 
it  as  to  see  clearly  where  the  mistake 
of  law  is.  the  decision  of  the  tribunal  to 
which  the  law  has  confided  the  matter  is 
conclusive.'  "'  Whitcomb  z\  White,  214 
U.  S.  15,  53  L.  Ed.  889,  29  S.  Ct.  599, 
citing  Quinby  z\  Conlan,  104  U.  S.  425. 
426.  26   L.   Ed.  800. 

The  land  department's  finding  in  favor 
of  a  homestead  entry  against  persons 
claiming  to  have  been  occupants  of  the 
premises  as  a  town  site,  which  rests,  not 
solely  on  the  fact  that  application  for 
such  entry  was  filed  a  few  hours  before 
that  of  the  trustee  for  the  town  site  oc- 
cupants, but  rather  chiefly  on  priority  of 
the  homesteader's  equitable  rights, 
must  be  held  conclusive  by  the  supreme 
court,  especially  where  reinforced  by 
judgments  of  the  state  courts,  u'nless 
there  is  the  clearest  and  most  convincing 
evidence  of  mistake  or  injustice.  Judg- 
ment (1907),  White  r.  Whitcomb.  90  P. 
1080.  13  Idaho,  490,  affirmed.  Whitcomb 
z:  White,  214  U.  S.  15,  53  L.  Ed.  889.  29 
S.    Ct.   599. 

250-77.  Direct  attack — At  law  as  in 
equity. — "In  Re  Eml)len.  161  U.  S.  52.  56, 
40  L.  Ed.  613,  16  S.  Ct.  487,  Mr.  Justice 
Gray  thus  stated  the  law:  'After  the 
patent  has  once  been  issued,  the  original 
contest  is  no  longer  within  the  jurisdic- 
tion of  the  land  department.  The  patent 
conveys  the  legal  title  to  the  patentee, 
and  can  not  be  revoked  or  set  aside,  ex- 
cept upon  judicial  proceedings  instituted 
in  behalf  of  the  United  States.  The  only 
remedy  of  Emblen  is  by  bill  in  equity  to 
charge  Weed  with  a  trust  in  his  favor. 
All  this  is  clearly  settled  bj'  previous  de- 
cisions of  this  court,  including  some  of 
those  on  which  the  petitioner  most  re- 
lies." Frellsen  &  Co.  z:  Crandell.  217  U. 
S.  71,  54  L.  Ed.  670.  30  S.  Ct.  490.  citing 
Johnson  :■.  Towsley.  13  Wall.  72.  20  L. 
Ed.  485;  Moore  z:  Robbins.  96  U.  S.  530, 
24  L.  Ed.  848;  Marquez  z\  Frisbie,  101  U. 
S.  473,  25  L.  Ed.  800;  Smelting  Co.  z: 
Kemp.  104  U.  S.  636.  26  L.  Ed.  875;  Steel 
:■.  Smelting  Co..  106  U.  S.  447,  27  L.  Ed. 
226.  1  S.  Ct.  389;  Monroe  Cattle  Co.  v. 
Becker.  147  U.  S.  47,  37  L.  Ed.  72,  13  S. 
Ct.  217;  Turner  z:  Sawyer,  150  U.  S.  578, 
586.  37  L.  Ed.  1189.  14  S.  Ct.  192.  See, 
also,  McMichael  Z'.  Murphy.  197  U.  S.  304. 
311.  49  L.   Ed.  766.  25  S.   Ct.  460. 

"The  rule  in  respect  to  the  administra- 


1029 


256-258 


PUBLIC  LANDS. 


Vol.  X. 


cc.  Suits  by  Government — (ii)  Pleading — aaa.  Sufficiency  and  Certainty  of 
Allegations. — See  note  9. 

(jj)  Defenses — bbb.  Laches  and  Limitations. — See  ante,  Laches,  p.  818; 
Limitation  of  Actions  and  Adverse  Possession,  p.  828. 

(kk)  Evidence — bbb.  Admissibility. — Statement  Made  by  Entryman. — 
The  admission  in  evidence  in  a  suit  in  equity  to  cancel  a  patent  for  fraud  in 
procuring  and  commuting  a  homestead  entry  of  a  statement  made  by  the  entry- 
man  to  a  government  agent,  and  made  the  basis  of  the  latter's  report  to  the  land 
office,  is  not  prejudicial  error,  where  the  attention  of  the  entryman,  when  testi- 
fying, was  drawn  to  such  statement,  and  he  himself  testified  that  it  was  made 
at  his  home,  and  was  signed  by  him,  and  the  facts  were  testified  to  by  the  agent 
to  whom  the  statement  was  made.^^^ 

Purchase  of  Other  Claims  by  Grantee. — Prejudicial  error  is  not  com- 
mitted in  admitting  in  evidence,  in  a  suit  in  equity  to  cancel  a  patent  and  the 
deeds  founded  thereon,  for  the  fraud  of  the  homestead  entryman,  testimony  show- 
ing the  purchase  of  other  homestead  claims  by  the  grantee,  because  it  was  not 
accompanied  by  evidence  showing  that  such  other  transactions  were  false  and 
fraudulent,  since  it  will  be  presumed  that,  under  such  circumstances,  the  court 
gave  to  the  testimony  admitted  no  value  or  probative  strength. 22b 

ccc.    Weight  and  Sufficiency. — See  note  23. 


tion  of  the  public  domain  of  the  United 
States  is  well  settled.  In  Doolan  v.  Carr, 
125  U.  S.  618,  624,  31  L.  Ed.  844,  8  S.  Ct. 
1228»  Mr.  Justice  Miller  said:  'There  is 
no  question  as  to  the  principle  that  where 
the  officers  of  the  government  have  is- 
sued a  patent  in  due  form  of  law,  which, 
on  its  face,  is  sufficient  to  convey  the 
title  to  the  land  described  in  it,  such 
patent  is  to  be  treated  as  valid  in  ac- 
tions at  law,  as  distinguished  from  suits 
in  equity,  subject,  however,  at  all  times, 
to  the  inquiry  whether  such  officers  had 
the  lawful  authority  to  make  a  convey- 
ance of  the  title.  But  if  those  officers 
acted  without  authority,  if  the  land 
which  they  purported  to  convey  had 
never  been  within  their  control,  or  had 
1)een  withdrawn  from  that  control  at  the 
time  they  undertook  to  exercise  such  au- 
thority, then  their  act  was  void,  void  for 
want  of  power  in  them  to  act  on  the  sub- 
ject matter  of  the  patent,  not  merely 
voidable;  in  which  latter  case,  if  the  cir- 
cumstances justified  such  a  decree,  a 
direct  proceeding,  with  proper  averments 
and  evidence,  would  be  required  to  es- 
tablish that  it  was  voidable,  and  should 
therefore  be  avoided.'  "  Frellsen  &  Co. 
V.  Crandell,  217  U.  S.  71,  54  L.  Ed.  670, 
30  S.  Ct.  490.  See,  also.  Hastings,  etc., 
R.  Co.  V.  Whitney.  132  U.  S.  357,  363,  33 
L.  Ed.  363,  10  S.  Ct.  112;  Kansas  Pac.  R. 
Co.  V.  Dunmeyer,  113  U.  S.  629,  28  L. 
Ed.  1122,  5  S.   Ct.  566. 

256-9.  Sufficiency  and  certainty  of 
pleading.— A  bill  by  the  United  States  to 
cancel  a  patent  sufficiently  alleges  the 
facts  upon  which  are  based  the  charge  of 
fraud,    in    procuring    and    commuting    the 


homestead  entry  on  which  the  patent  was 
founded,  where  it  avers  that  the  patentee 
secured  his  patent  by  deceiving  the  land 
office  by  false  testimony  as  to  the  extent 
of  his  improvements,  cultivation,  and 
residence.  McCaskill  Co.  v.  United 
States,  216  U.  S.  504,  54  L.  Ed.  590,  30  S. 
Ct.    386. 

258-22a.  Admissibility — Statement  made 
by  entryman. — McCaskill  Co.  v.  United 
States,  216  U.  S.  504,  54  L.  Ed.  590,  30  S. 
Ct.  386. 

258-22b.  Purchase  of  other  claims  by 
grantee. — McCaskill  Co.  v.  United  States, 
216  U.  S.  504,  54  L.  Ed.  590,  30  S.  Ct.  386. 

258-23.  Weight  and  sufficiency.— Con- 
current findings  of  the  two  lower  courts 
that  a  patentee  deceived  the  land  office 
by  false  testimony  as  to  the  extent  of  his 
improvements,  cultivation,  and  residence, 
and  secured  his  patent  by  that  deception, 
are  sustained  by  the  evidence,  where  his 
statement  and  proof  on  final  hearing  were 
that  his  improvement  consisted  of  a 
habitable  dwelling  and  a  garden  culti- 
vated two  seasons,  and  that,  after  mak- 
ing his  settlement,  he  was  absent  only 
two  or  three  times  on  account  of  his 
health,  the  longest  absence  being  not 
over  three  months,  and  the  evidence  in 
the  case  at  bar  shows  that  the  house  was 
unfit  for  habitation,  that  the  patentee 
never  moved  his  family  there,  that  he 
did  not  stay  there  more  than  one  night 
in  a  week,  and  that  he  had  admitted  to  a 
government  agent  that  he  had  not  lived 
on  the  homestead  entry,  and  thought  he 
was  going  to  lose  it.  McCaskill  Co.  v. 
United  States,  216  U.  S.  504,  54  L.  Ed. 
590,    30    S.    Ct.    386. 


1030 


\'ol.  X. 


PUBLIC  LANDS. 


261-267 


dd.  Suits  by  Private  Individuals — (bb)  Proper  Relief — aaa.  Establishing  of 
Trust. — See  note  33. 

(cc)  Rights  of  Parties  and  Grounds  for  Relief — aaa.  Interest  of  Complain- 
ant.— See  note  37. 

bbb.  Grounds  for  Relief — (ccc)  Fraud  and  False  Testimony — aaaa.  In  Gen- 
eral.— See  note  46.  Xewly-discovered  evidence  on  the  issue  of  fraud  made 
before  the  Land  Department,  which  complainant  had  abundance  of  time  and 
opportunity  to  discover  and  present,  is  not  ground  for  rehef  in  equity  from  its 
tinal  action,  where  no  fact  is  alleged  that  anything  was  done  to  prevent  com- 
plainant from  discovering  or  presenting  such  evidence  except  the  general  al- 
legation that  cunning  and  deceit  were  practiced  on  him.^'^^ 

5.  JuRiSDicTiox  OF  AXD  ReviEw  BY  CouRTs — a.  Before  Patent  Issued. — It 
can  not  interfere  with  the  land  department  in  the  administration  of  the  public 
lands  while  the  same  are  subject  to  disposition  under  acts  of  congress  intrust- 
ing such  matters  to  that  branch  of  the  government/^-^^     But  this  rule  does  not 


261-33.  Establishing  of  trust.— "The 
principle  is  well  settled  that  where  'one 
party  has  acquired  the  legal  title  to  prop- 
erty to  which  another  has  the  better 
right,  a  court  of  equity  will  convert  him 
into  a  trustee  of  the  true  owner  and  com- 
pel him  to  convey  the  legal  title.' " 
Prosser  v.  Finn,  208  U.  S.  67,  52  L.  Ed. 
392,  28  S.  Ct.  225,  citing  Stark  v.  Starrs, 
e  Wall.  402,  419,  18  L.  Ed.  925;  Silver  v. 
Ladd,  7  Wall.  219,  19  L.  Ed.  138;  Cor- 
nelius V.  Kessel,  128  U.  S.  456,  461,  32  L. 
Ed.  482,  9  S.  Ct.  122;  Bernier  v.  Bernier, 
147  U.  S.  242,  37  L.  Ed.  152,  13  S.  Ct.  244; 
In  re  Emblen,  161  U.  S.  52,  40  L.  Ed.  613, 
16  S.   Ct.  487. 

The  waiver  of  a  preferential  right  of 
entry  under  a  decision  in  a  contest  in 
the  land  department,  filed  before  the  pat- 
ent was  finally  issued,  coupled  with  a 
delay  of  four  years  in  attempting  to  en- 
force such  preferential  right,  defeats  any 
right  to  charge  the  patentee  and  his 
grantees  with  a  resulting  trust.  Decree 
(1904),  79  P.  265,  15  Okl.  12.  affirmed. 
Holt  V.  :Murphy,  207  U.  S.  407.  52  L.  Ed. 
271,  28  S.  Ct.  212.  See,  generallv,  post, 
TRUSTS   AND   TRUSTEES. 

261-37.  Interest  of  complainant.^ 
Where  the  object  of  the  bill  is  to  seek  to 
charge  the  defendants  as  trustees  of  the 
land  for  complainant,  plainly,  proof  that 
their  grantor  never  acquired  title  to  the 
land  would  not  establish  a  right  to  it  in 
the  complainant.  Weverhaeuser  v.  Hoyt, 
219  U.  S.  380,  55  L.   Ed.  258.  31    S.  Ct.  300. 

The  failure  of  the  Northern  Pacific 
Railway  Company  to  acquire  title  to 
lands  lawfully  selected  by  the  Northern 
Pacific  Railroad  Company  as  within  the 
second  indemnity  limits  of  its  land  grant 
will  not  avail  persons  claiming  such  lands 
by  virtue  of  an  alleged  purchase  under 
the  Timber  and  Stone  Act,  who  are  seek- 
ing to  charge  as  trustees  the  grantees  of 
the  railway  company.  Weyerhaeuser  i\ 
Hoyt.  219  U.  S.  380,  55  L.  Ed.  25S,  31  S. 
Ct.  300,  reversing  decree  in  Hoyt  v. 
Weyerhaeuser  (1908),  161  F.  324.  88  C.  C. 


A.  404;  Campbell  v.  Weyerhaeuser,  219 
U.  S.  424,  55  L.  Ed.  279,  31  S.  Ct.  321,  af- 
firming decree  (1908),  161  F.  332,  88  C. 
C.  A.  412;  Northern  Pac.  R.  Co.  v.  Wass, 
219  U.  S.  426,  55  L.  Ed.  280.  31  S.  Ct.  321, 
reversing  judgment  (1908),  117  N.  W. 
1126,   105   Minn.   525. 

263-46.  Fraud  and  false  testimony. — 
"In  Vance  v.  Burbank,  101  U.  S.  514,  519, 
25  L.  Ed.  929,  this  court  said,  expressing 
the  principle  that  is  to  be  applied  in 
cases  like  that  at  bar;  'It  has  also  been 
settled  that  the  fraud  in  respect  to  which 
relief  will  be  granted  in  this  class  of 
cases  must  be  such  as  has  been  practiced 
on  the  unsuccessful  party,  and  prevented 
him  from  exhibiting  his  case  fully  to  the 
department,  so  that  it  may  properly  be 
said  there  has  never  been  a  decision  in 
a  real  contest  about  the  subject  matter  of 
inquiry.  False  testimony  or  forged  docu- 
ments even  are  not  enough,  if  the  dis- 
puted matter  has  actually  been  presented 
to  or  considered  by  the  appropriate 
tribunal.'  "  Greenameyer  v.  Coate,  212  U. 
S.  434.  53  L.  Ed.  587.  29  S.  Ct.  345,  citing 
United  States  v.  Throckmorton,  98  U. 
S.  61,  25  L.  Ed.  93;  Marquez  v.  Frisbie, 
101   U.   S.  473.  25   L.   Ed.  800. 

264-47a.  Newly-discovered  evidence — 
Laches. — Greenameyer  v.  Coate,  212  U. 
S.    434,    53    L.    Ed.   587.    29    S.    Ct.    345. 

"The  case  therefore  falls  within  the 
doctrine  of  Vance  t.  Burbank,  101  U.  S. 
514,  519,  25  L.  Ed.  929;  De  Cambra  v. 
Rogers.  189  U.  S.  119,  47  L.  Ed.  734,  33 
S.  Ct.  519;  Estes  v.  Timmons,  199  U.  S. 
391,  50  L.  Ed.  241,  26  S.  Ct.  85;  United 
States  V.  Throckmorton,  98  U.  S.  61,  65, 
25  L.  Ed.  93:  Friese  v.  Hummel,  26  Or. 
152,  46  Am.  St.  Rep.  610,  37  Pac.  458." 
Greenameyer  v.  Coate.  212  U.  S.  434.  53 
L.    Ed.   587,   29    S.    Ct.   345. 

267-63a.  Control  of  land  department. 
—Garfield  z:  Goldsby,  211  U.  S.  P40,  53 
L.  Ed.  168.  29  S.  Ct.  62.  See  ante, 
MANDAMUS,  p.  838;  post.  PUBLIC  OF- 
FICERS. 

"We    have    no    disposition    to    question 


1031 


267-291  PUBLIC  LANDS.  Vol.  X. 

apply  to  the  right  to  control,  by  judicial  action,  an  alleged  unauthorized  act  of 
the  secretary  of  the  interior  for  which  he  is  given  no  authority  by  any  act  of 
congress. ^•'^^ 

III.  Grants  or  Claims  Emanating  from  or  Arising  under  Former  Sov- 
ereign. 

C.  Spanish,  French  and  Mexican  Grants — 2.  Acquisition  of  Right 
AND  Title  under  Former  Sovereigns — c.  Authority  to  Make  and  Manner  of 
Making — (1)  Lazvs  Controlling — (a)  In  General. — The  transference  of  na- 
tional sovereignty,  and  not  the  disposal  of  public  land  as  property,  was  what  was 
comprehended  by  the  declaration  of  the  Spanish  constitution  that  "to  alienate, 
cede,  or  exchange  any  part  of  Spanish  territory,"  the  king  required  "the  au- 
thority of  a  special  law."'^'^^  A  grant  of  tide  lands  by  the  king  of  Spain  for 
•purposes  of  reclamation  and  improvement  was  not  forbidden  by  Particla  3,  tit. 
28,  laws  3  and  4,  which  affirm  that  the  sea  and  its  shore  are  among  the  things 
which  belong  in  common  to  all  men.^-^'' 

(4)  Power  of  States  and  Territories. — The  government  general  of  the 
Philippines  must  be  deemed  to  have  had  the  authority  to  make  a  grant  of 
tide  lands  for  purposes  of  reclamation  and  improvement,  in  view  of  the  uni- 
form construction  given  by  the  successive  governors  general  to  the  provisions 
of  the  Laws  of  the  Indies,  book  2,  tit.  15.  law  11,  defining  the  powers  of  that 
official,  and  acc[uiesced  in  by  the  king  of  Spain,  as  empowering  him  to  do  what- 
ever the  king  could  do  were  he  present,  except  where  otherwise  specially  pro- 
vided, and  of  the  failure  of  the  Spanish  authorities  for  thirty-nine  years  to 
call  the  grant  into  question,  meanwhile  imposing  taxes  upon  the  land  as  private 
property.^^'^ 

d.  Construction,  Operation  and  Effect — (2)  Conditions — (f)  Effect  of  Xon- 
conipliance.—See  note  20. 

Conditions  Subsequent. — See  note  23. 

those  cases  in  which   this  court  has  held  221    U.    S.    623,    55    L.    Ed.    884,    31    S.    Ct. 

that    the    courts    may    not    interfere    with  664. 

the  land  department  in  the  administra-  291-20.  Failure  to  comply  with  condi- 
tion of  the  public  lands  while  the  same  tions. — A  grant  of  public  land  in  the 
are  subject  to  disposition  under  acts  of  Philippine  Islands,  made  by  subordinate 
congress  intrusting  such  matters  to  that  Spanish  officials,  receives  no  support 
branch  of  the  government.  Some  of  these  from  the  decree  of  tlie  Spanish  Cortes  of 
cases  are  cited  in  the  late  case  of  United  January  4,  1813,  where  the  conditions  of 
States  V.  Detroit,  etc..  Lumber  Co.,  200  the  decree  were  not  fulfilled.  Tiglao  v. 
U.  S.  321,  50  L.  Ed.  499,  26  S.  Ct.  282,  Insular  Government,  215  U.  S.  410,  54  L. 
and  the  principle  to  be  gathered  from  Ed.  257,  30  S.  Ct.  129. 
them  is,  that  while  the  land  is  under  con-  291-23.  Forfeiture  for  failure  to  per- 
trol  of  the  land  department  prior  to  the  form  conditions  subsequent. — A  grant  of 
issue  of  patent,  the  court  will  not  inter-  the  "'possession  and  ownership"  of  tide 
fere  with  such  departmental  administra-  lands  in  contemplation  of  reclamation 
tion.  This  vvas  held  as  late  as  the  case  can  not  be  deemed  to  have  been  made 
of  Love  V.  Flahive,  205  U.  S.  195,  198,  upon  condition,  so  as  to  defeat  the  title 
51  L.  Ed.  768,  27  S.  Ct.  486."  Garfield  v.  thereunder  because  part  of  the  land  has 
Goldsby,  211  U.  S.  249,  53  L.  Ed.  168,  29  not  been  reclaimed,  where  the  grant 
S.   Ct.   62.  fixes    no   time    for   beginning   or   complet- 

267-63b.      Unauthorized     acts. — Garfield  '"?  the  work,  and  recites  that  it  is  made 

V.   Goldsby,   211   U.   S.  249,   53   L.   Ed.   168,  hi   consideration,  inter  alia,   of  the   official 

29   S.   Ct.   62.                                                          '  ^nd   industrial   merits   of  the   grantee,   and 

270-83a.     Construction    of    Spanish    law.  '"'^   °^^''   '''I   Protection   stated   in   a   prior 

— Costas    V.    Insular    Government.    221    U  decree,    and    where,    during    many    years, 

S.  623,  625,  55  L.  Ed.  884.  31  S.  Ct    664     '  *r-    '"^P^'^sentatives    of    Spam    and    those 

ntn  Qou      r^        ^-         ^-j      i      j        ^  clauiima:    under    the    grant    practically    in- 

270-83b.     Grantmg    tide    lands -Costas  terpreted  the  same  as  leaving  the  grantee 

t'   ^T^ls    ^^''T''r^h!  ^^^-   ^^       ^'■^e    to    efifect    the    reclamation     at      such 

L,.  £.a.  884,  31   b.   Lt.  664.  ^-^^^^^  ^g  ^^  j^j^  might  seem  practical   and 

273-99a.  Government  general  of  Philip-       advantageous.      Costas    r.    Insular    Gov- 

pines. — Costas    v.     Insular      Government,       ernment,    221   U.    S.   623,    55   L.    Ed.    884, 

31   S.   Ct.  664. 

1032 


Vol.  X. 


PUBLIC  LAXDS. 


299-306 


3.  Recogxitiox,  \'alidatiox  and  Coxfirmatiox — a.  /;;  General. — Methods 
Adopted  in  Philippines. — As  to  the  effect  of  the  treaty  of  cession,  whereby 
the  Philippine  Islands  became  a  part  of  the  United  States,  and  as  to  the  methods 
of  confirming  land  titles  and  claim  on  such  islands  see  note  69a. 

c.  Legislatk'e  Confirmation  and  Completion  of  Claims — (1)  Necessity  for 
Confirmation  and  Ascertainment — (a)  Claims  Recognized  by  Treaty — Perfect 
and  Imperfect. — See  note  8. 


299-69a.  Methods  adopted  in  the  Philip- 
pine Islands. — Exception  of  the  province 
of  Benguet  from  operation  of  the  Phihp- 
pine  Commissions  Act  1903,  Xo.  926,  re- 
lating to  registration  of  land  titles,  does 
not  apply  to  one  claiming  present  owner- 
ship of  land  therein;  but  he  is  entitled  to 
registration,  if  his  claim  can  be  main- 
tained, under  the  Commission's  Act  1902, 
Xo.  406,  establishing  a  court  for  registra- 
tion, with  jurisdiction  "throughout  the 
Philippine  Archipelago,''  and  authoriz- 
ing, in  general  terms,  applications  by 
claimants  of  the  legal  estate  in  fee  simple. 
Carino  z:  Insular  Government,  212  l^.  S. 
449.    53    L.    Ed.    594,   29    S.    Ct.    334. 

"By  the  Organic  Act  of  July  1,  1902, 
chap.  1369.  §  12,  32  Stat,  at  L.  691,  all  the 
property  and  rights  acquired  there  by 
the  United  States  are  to  be  administered 
■for  the  benefit  of  the  inhabitants  thereof.' 
It  is  reasonable  to  suppose  that  the  at- 
titude thus  assumed  by  the  United 
States  witli  regard  to  what  was  unques- 
tionably its  own  is  also  its  attitude  in 
deciding  what  it  will  claim  of  its  own. 
The  same  statute  made  a  bill  of  rights. 
embodying  the  safeguards  of  the  con- 
stitution, and,  like  the  constitution,  ex- 
tends those  safeguards  to  all."  Carino  z\ 
Insular  Government.  212  U.  S.  449,  53 
L.    Ed.    594.    29    S.    Ct.    334. 

"In  the  light  of  the  declaration  that  we 
have  quoted  from  §  12,  it  is  hard  to  be- 
lieve that  the  United  States  was  ready 
to  declare  in  the  next  breath  that  'any 
person'  did  not  embrace  the  inhabitants 
of  Benguet,  or  that  it  meant  by  'prop- 
erty' only  that  which  had  be.come  such 
by  ceremonies  of  which  presumably  a 
large  part  of  the  inhabitants  never  had 
heard,  and  that  it  proposed  to  treat  as 
public  land  what  they,  by  native  custom 
and  by  long  association,  one  of  the  pro- 
foundest  factors  in  human  thought,  re- 
garded as  their  own."  Carino  v.  Insular 
Government.  212  U.  S.  449,  53  L.  Ed.  594. 
29   S.  Ct.  334. 

"It  is  true  that,  by  §  14.  the  govern- 
ment of  the  Philippines  is  empowered  to 
enact  rules  and  prescribe  terms  for  per- 
fecting titles  to  pul)lic  lands  where  some, 
but  not  all,  Spanish  conditions  had  been 
fulfilled,  and  to  issue  patents  to  natives 
for  not  more  than  16  hectares  of  public 
lands  actually  occupied  by  the  native  or 
his  ancestors  before  August  13.  1898.  But 
this    section    perhaps    might    be    satisfied 


if  confined  to  cases  where  the  occupation 
was  of  land  admitted  to  be  public  land, 
and  had  not  continued  for  such  a  length 
of  time  and  imder  such  circumstances  as 
to  give  rise  to  the  understanding  that  the 
occupants  w^ere  owners  at  that  date." 
Carino  z'.  Insular  Government.  212  U.  S. 
449,   53   L.    Ed.   594,   29   S.    Ct.   334. 

Necessity  for  paper  title. — "We  hesi- 
tate to  suppose  that  it  was  intended  to 
declare  every  native  who  hati  not  a  pa- 
per title  a  trespasser,  and  to  set  the 
claims  of  all  the  wilder  tribes  afloat.  It 
IS  true  again  that  there  is  expected  from 
the  provision  that  we  have  quoted  as  to 
the  administration  of  the  property  and 
rights  acquired  by  the  United  States, 
such  land  and  property'  as  shall  be 
.  designated  by  the  president  for  military 
or  other  reservations,  as  this  land  since 
has  been.  But  there  still  remains  the 
question  what  property  and  rights  the 
United  States  asserted  itself  to  have  ac- 
quired." Carino  z:  Insular  Government, 
212  U.  S.  449,  53  L.  Ed.  594,  29  S.  Ct.  334. 
306-8.  Claims  recognized  by  treaty. — 
The  claim  of  one  whose  title  under  a 
Mexican  land  grant  is  perfect  and  coin- 
plete,  and  who  is,  therefore,  not  bound 
under  the  Act  of  March  3.  1891,  to  apply 
to  the  court  of  private  land  claims  for 
confirmation,  is  not  cut  down  to  the  ex- 
tent that  the  land  has  been  patented  by 
the  United  States  to  third  parties,  be- 
cause he  appeared  and  prayed  confirma- 
tion in  a  suit  brought  against  him  by  the 
United  States  under  the  authority  of  §  8 
of  that  act.  to  remove  the  government's 
doubt  as  to  title  or  boundaries,  on  the 
theory  that  the  language  of  §  14,  giving 
that  effect  to  such  patents  "if  in  any 
case"  it  shall  appear  that  the  lands  or 
any  part  thereof,  decreed  to  any  claimant 
imder  the  act,  shall  have  been  sold  by  the 
United  States,  applies  not  only  to  the 
proceeding  brouglit  by  the  claimant  him- 
self for  confirmation,  but  also  to  the 
proceeding  on  behalf  of  the  government, 
in  which  the  court  is  to  determine  the 
matter,  subject  to  all  lawful  rights  ad- 
verse to  the  claimant  or  possessor,  and 
as  between  such  claimant  and  possessor 
and  any  other  claimant  or  possessor,  and 
subject  in  this  respect  to  all  the  ap- 
plicable statutory  provisions.  Richard- 
son V.  Ainsa,  218  U.  S.  289,  54  L.  Ed. 
1044,    31    S.    Ct.    23. 


1033 


314-348 


PUBLIC  LANDS. 


Vol.  X. 


(3)  Proceeding  to  Confirm,  Ascertain  and  Complete — (d)  Determination 
by  Commissioners — bb.  Jurisdiction,  Pozvers  and  Duties — (bb)  Claims  Cogni- 
sable.— See  note  55. 

(e)  Determination  by  State,  Territory  and  Federal  Courts — cc.  Claifns  Cog- 
nisable and  Confirmable. — See  note  82. 

d.  Evidence  of  Grant  from  Former  Sovereign — (2)  Presumption  and  Bur- 
den of  Proof — (b)    Presumption  of  Grant. — See  note  47. 

Grant  Presumed  Reported  According  to  Law. — It  will  be  presumed,  in 


314-55.  Claims  cognizable. — Florida 
land  claims  which  previously  had  been 
rejected  as  fraudulent  or  maintained  by 
improper  means,  when  the  fraud  ad- 
dressed itself  to  avoiding  the  treaty  of 
February  22,  1819,  with  Spain,  as  well  as 
when  the  fraud  related  to  some  other 
fact  material  to  the  validity  of  the  claims 
at  the  time  when  they  were  created,  were 
covered  by  'the  proviso  in  Act  June  22, 
1860,  c.  188,  §  3,  12  Stat.  85,  prohibiting 
commissioners  from  embracing  among 
the  claims  which  ought  to  be  confirmed 
"any  claim  which  has  been  heretofore 
presented  for  confirmation  before  any 
board  of  commissioners  or  other  public 
officers  acting  under  authority  of  con- 
gress, and  rejected  as  being  fraudulent, 
or  procured  or  maintained  by  fraudulent 
or  improper  means."  United  States  v. 
Dalcour,  203  U.  S.  408,  .51  L.  Ed.  248.  27 
S.   Ct.   58. 

The  rejection  of  a  Florida  land  claim 
by  a  judge  of  the  superior  court  of  West 
Florida,  acting  under  Act  Mav  23,  1828,  c. 
70,  §  6,  4  Stat.  284,  §  6,  because  of  an 
unv^arranted  alteration  of  the  date  in  the 
registro  which  would  save  the  grant 
from  invalidity  under  the  treaty  of  Feb- 
ruary 22,  1819,  with  Spain,  brings  the 
case  within  the  proviso  of  Act  June  22, 
1860,  c.  188,  §  3,  12  Stat.  85,  prohibiting 
commissioners  from  embracing  among 
the  claims  which  ought  to  be  confirmed 
"any  claim  which  has  been  heretofore 
presented  for  confirmation  before  any 
board  of  commissioner  or  other  public 
officers  acting  under  authority  of  con- 
gress, and  rejected  as  being  fraudulent, 
or  procured  or  maintained  by  fraudulent 
or  improper  means."  United  States  v. 
Dalcour,  203  U.  S.  408,  51  L.  Ed.  248,  27 
S.   Ct.  58. 

Judges  of  the  superior  court  of  West 
Florida  were  "Public  officers  acting  un- 
der authority  of  congress"  within  the 
meaning  of  the  proviso  in  Act  June  22 
3  860,  c.  188,  §  3,  12  Stat.  85,  prohibiting 
commissioners  from  embracing  among 
the  Florida  land  claims  which  ought  to 
be  confirmed  "any  claim  which  has  been 
heretofore  presented  for  confirmation  be- 
fore anj  board  of  commissioners  or  other 
public  officers  acting  under  authority, 
of  congress,  and  rejected  as  being  fraudu- 
lent, or  procured  or  maintained  by 
fraudulent    or    improper    means."    United 


States  V.  Dalcour,  203  U.  S.  408,  51  L.  Ed. 
248,    27    S.    Ct.    58. 

319-82.  Claims  cognizable  and  con- 
firmable.— A  judge  of  the'  superior  court 
of  West  Florida,  acting  under  Act  May 
23,  1828,  c.  70,  §  6,  4  Stat.  284,  285,  had 
jurisdiction  to  reject  a  Florida  land 
claim  because  of  an  unwarranted  altera- 
tion in  the  date  of  the  registro  which 
would  save  the  grant  from  invalidity  un- 
der the  treaty  of  February  22,  1819  (8 
Stat.  258),  with  Spain,  although  a  proviso 
to  that  section  excluded  him  from  taking 
cognizance  of  any  claims  annulled  by  the 
treaty.  United  States  v.  Dalcour,  203  U. 
S.  408,  51  L.   Ed.  248,  27   S.   Ct.  58. 

348-47.  Presumption  in  favor  of  long 
possession. — "It  might,  perhaps,  be 
proper  and  sufficient  to  say  that  when, 
as  far  back  as  testimony  or  memory 
goes,  the  land  has  been  held  by  individ- 
uals under  a  claim  of  private  ownership, 
it  will  be  presumed  to  have  been  held  in 
the  same  way  from  before  the  Spanish 
conquest,  and  never  to  have  been  public 
land."  Carino  v.  Insular  Government. 
212  U.  S.  449,  53  L.  Ed.  594,  29  S.  Ct.  334. 

Every  presumption  should  be  indulged 
against  the  United  States  claiming  title 
to  land  in  the  province  of  Benguet  in  the 
Philippine  Islands,  which,  for  more  than 
50  years  prior  to  the  treaty  of  peace  with 
Spain  (Treaty  April  11,  1899,  30  Stat. 
1754),  has  been  held  by  the  present  na- 
tive Igorot  holder  and  his  ancestors  un- 
der claim  of  private  ownership.  Carino 
V.  Insular  Government,  212  U.  S.  449,  53 
L.    Ed.    594,    29    S.    Ct.    334. 

A  native  title  to  land  in  the  province 
of  Benguet  in  the  Philippine  Islands, 
which  for  more  than  50  years  prior  to 
the  treaty  with  Spain  (Treaty  April  11, 
1899,  30  Stat.  1754),  a  native  Igorot  and 
his  ancestors  have  held  in  accordance 
with  Igorot  custom,  as  private  property, 
should  be  recognized  by  the  insular  gov- 
ernment, though  no  document  of  title  is- 
sued from  the  Spanish  crown,  where, 
even  if  tried  by  law  of  Spain,  without 
reference  to  effect  of  change  of  sov- 
ereignty and  of  the  declaration  of  pur- 
pose and  safeguards  embodied  in  Organic 
Act  July  1,  1902,  c.  1369,  32  Stat.  691,  it 
is  not  clear  that  he  is  not  the  owner. 
Carino  v.  Insular  Government,  212  U.  S. 
449,  53  L.  Ed.  594,  29  S.  Ct.  334. 


1034 


\'ol.  X.  PUBLIC  OFFICERS.  349 

the  absence  of  any  showing  to  the  contrary,  that  the  governor-general  of  the 
PhiHppines  reported  a  grant  of  tide  lands  to  his  superiors  at  Madrid,  as  re- 
quired by  royal  decree. ^'^^ 

PUBLIC  MINISTERS.— See  references  ante  under  Ambassadors  and  Con- 
suls, p.  25. 

PUBLIC  OFFICERS. 

I.  Definition,  Distinctions  and  Creation,   1036. 
V.  Qualification  and  Induction,  1036. 
F.  Actions  on  Official  Bonds,   1036. 
4.  Pleas  and   Defenses.    1036. 
a.  In  General,  1036. 

VII.  Commencement,   Duration  and  Termination  of  Authority,   1036. 
C.  Vacation  of  Office,   1036. 

4.  By  Abolition  of  Office,   1036. 

a.  Power  to  Abolish,   1036. 

c.  Change  of  Sovereignty.  1036. 

VIII.  Compensation,    1036. 

B.  Amount  of  Compensation,  1036. 

4.  Right  to  Extra  Compensation,  1036. 

c.  Under   Statutorv   Provisions   Limiting  Right.    1036. 

(1)  Terms,  1036. 

(2)  Effect,  1037. 

C.  Recovery,  1037. 

5.  De  Jnre  from  De  Facto  Officers,   1037. 

IX.  Powers,  Duties  and  Liabilities,  1037. 
A.  Powers,   1037. 

7.  Presumptive  A'alidity  and  Authority,   1037. 

b.  \Miere   Discretion   Reposed.    1037. 

(1)   In  General,   1037. 
C.  Liabilities.   1037. 

2y2.  Accounting    for    Illicit     Gratuities     and     Gains    from    Fraudulent 
Profits  on  Contracts.  1037. 

3.  Liability  to  Third  Parties,   1038. 

a.  Personal  Liability  for  Official  Acts,   1038. 

(1)   \\lien   Authorized   or   Adopted   bv   Government.    1038. 

(3)  ^linisterial   Action.    1038. 
(a)   In  General,  1038. 

4.  Criminal  Liability,   1039. 

a.  In  General,  1039. 

d.  Falsifying  Records,  1039. 

XII.  Ofi'enses  against  Civil  Service,   1039. 

A.  Solicitajtion  by  Letter  of  Contribution   for  Political  Purpose.   1039. 

CROSS   REFERENCES. 

See  the  title  Public  Officers,  vol.  10.  p.  363,  and  references  there  given. 
In  addition,  see  ante,  Conspiracy,  p.  256. 

349-50a.     Grant   presumed   reported    ac-       ernmeiit,  221  U.  S.  623,  5.5  L.   Ed.  884,  33 
cording   to   law. — Costas   v.    Insular    Gov-       S.  Ct.  664. 

'      1035 


371-407 


PUBLIC  OFFICERS. 


Vol.  X. 


As  to  liability  of  marshal  for  detaining  vessel  on  attachment,  see  ante,  Ad- 
miralty, p.   10;  post.  United  States  Marshals. 

I.    Definition,  Distinctions  and  Creation. 

An  office  commonly  requires  something  more  permanent  than  a  single  transi- 
tory act  or  transaction  to  call  it  into  being.  The  acceptance  of  the  duty  of 
spending  and  accounting  for  a  small  fund  does  not  amount  to  holding  a  civil 
office  within  the  statutes  of  the  United  States  or  under  the  Philippine  Penal 
Code.-''^ 

V.    Qualification  and  Induction. 

F.  Actions  on  Official  Bonds — 4.  Pleas  and  Defenses — a.  In  General. — 
As  to  defenses  in  an  action  on  a  bond  of  an  Indian  agent,  see  case  cited  in 
note  51a. 

VII.    Commencement,  Duration  and  Termination  of  Authority. 

C.  'Vacation  of  Office — 4.  By  Abolition  of  Office — a.  Poi^xr  to  Abolish. 
— In  the  absence  of  a  constitutional  prohibition  express  or  implied,  congress 
can  abolish  an  office  over  which  the  United  States  is  lawful  sovereign. ^'^'^ 

c.    Change  of  Sovereignty.— ^e&  ante,  International  Law,  p.  686. 

VIII.    Compensation. 
B.     Amount   of   Compensation — 4.    Right   to   Extra   Compensation — c. 
Under  Statutory  Proiisions  Limiting  Right — (1)     Terms. — See  note  55. 


371-4a.  Single  transaction — Carring- 
ton  v.  United  States,  208  U.  S.  I,  52  L. 
Ed.    367,    28    S.    Ct.    203. 

The  acceptance  by  an  army  officer  on 
the  active  list,  detached  to  command  a 
battalion  of  Philippine  scouts,  of  a  small 
sum  trom  the  civil  government  of  the 
Philippine  Islands,  to  be  used  by  him  in 
connection  with  his  military  command  in 
the  preparation  and  display  of  an  exhibit 
at  the  Louisiana  Purchase  Exposition, 
did  not  make  him  a  civil  officer,  so  as  to 
be  amenable  to  Pen.  Code,  P.  I.,  art.  300, 
punishing  the  falsification  of  a  public 
document  by  a  public  official.  Carring- 
ton  z'.  United  States,  208  U.  S.  1,  52  L. 
Ed.    367,   2S    S.    Ct.   203. 

"In  Carrington  t:  United  States,  208  U. 
S.  I,  52  L.  Ed.  367,  2S  S.  Ct.  203,  where 
a  military  officer  of  the  United  States  was 
prosecuted  as  a  civil  officer  of  the  gov- 
ernment of  the  Philippmes.  His  convic- 
tion was  reversed,  this  court  holding 
that,  'as  a  soldier,  he  was  not  an  official 
of  the  Philippines,  but  of  the  United 
States." "  Weems  v.  United  States,  217 
U.   S.   349,   54   L.    Ed.  793,   30   S.   Ct.   544. 

392-51a.  Defenses  in  action  on  bond 
of  Indian  agent. — United  States  Fidelity, 
etc.,  Co  c'.  United  Stales,  214  U.  S.  507, 
53  L.  Ed.  1061,  29  S.  Ct.  702,  affirming 
150    Fed.    550,    80    C.    C.    A.    446,    no    op. 

401-16a.  Sancliez  z:  United  States,  216 
U.  S.  167.  54  L.  Ed.  432,  30  S.  Ct.  361. 
See  O'Reilly  de  Camara  v.  Brooke,  209 
U.  S.  45,  49,  52  L.  Ed.  676,  28  S.  Ct.  439. 
See  post,  "When  Authorized  or  Adopted 
by   Government,"  IX,   C,   3,   a,    (l). 

Congress   could,   by   Act   April   12,   1900, 


c.  191,  31,  Stat.  77,  confiscate  without 
compensation,  so  far  as  the  federal  con- 
stitution is  concerned,  the  office  of  so- 
licitor of  the  courts  of  first  instance  of 
the  capital  of  Porto  Rico,  lawfully  pur- 
chased in  perpetuity,  prior  to  the  occupa- 
tion of  Porto  Rico  by  the  military  au- 
thorities of  the  United  States,  and  the 
cession  of  that  island  to  the  United 
States.  Judgment,  Sanches  v.  United 
States  (1907),  42  Ct.  CI.  458,  affirmed. 
Sanchez  v.  United  States,  216  U.  S.  167, 
54   L.   Ed.   432,  30   S.   Ct.  3G1. 

The  abolition  of  the  office  was  not  in 
violation  of  any  provision  of  the  con- 
stitution, nor  did  it  infringe  any  right  of 
property  which  the  claimant  could  as- 
sert as  against  the  United  States. 
Sanchez  z:  United  States,  216  U.  S.  167, 
54  L.  Ed.  432,  30  S.  Ct.  361.  affirming  42 
Cl     CI.    458. 

407-55.  Terms  and  history. — A  succinct 
history  of  the  legislation  respecting  the 
question  of  extra  compensation  for  gov- 
ernment employees  is  contained  in  the 
case  of  United  States  t;  King,  147  U.  S. 
376,  681,  37  L.  Ed.  328,  13  S.  Ct.  439. 
Section  1765,  Rev.  Stat.,  was  taken 
from  two  statutes,  the  first  passed  March 
3,  1839  (5  Stat,  at  L.  349,  chao.  83,  U.  S. 
Comp.  Stat.  1901,  p.  1207),  and  the 
second  August  23,  1842  (5  Stat,  at  L.  510, 
chap.  183,  U.  S.  Comp.  Stat.  1901,  p. 
1207),  and  may  be  considered  to  be,  to 
some  extent,  in  pari  materia  with  §§  1763, 
1764.  United  States  v.  Saunders,  120  U. 
S.  126,  30  L.  Ed.  594,  7  S.  Ct.  467.  Wood- 
well  V.  United  States,  214  U.  S.  82,  53  L. 
Ed.    919,    29    S.    Ct.    576. 


1036 


\'ol.  X. 


PUBLIC  OFFICERS. 


408-419 


(2)  Effect. — In  a  case  merely  of  the  performances  of  extra  services,  and 
not  one  of  the  filhng  of  two  distinct  places,  offices,  or  employments,  payment 
for  such  extra  service  is  plainly  prohibited  by  the  terms  of  §  1765.  Rev.  Stat.; 
but  in  a  case  of  the  filling  of  two  distinct  offices,  places  or  employments  two 
compensations  are  allowed. ^''''^ 

C.  Recovery — 5.  De  Jure  from  De  Facto  Officers. — A  de  jure  officer 
may  recover  from  the  de  facto  incumbent  the  fees  and  emoluments  of  the  office, 
received  by  the  latter  during  his  incumbency.'*-''  The  actual  cost  of  obtaining 
the  fees  and  emoluments  of  an  office,  which  would  have  been  entailed  on  any 
person  who  might  have  held  the  office,  may  be  set  ofif  by  an  ousted  de  facto 
officer  in  an  action  by  the  de  jure  officer  to  recover  such  official  earnings. ^^"^ 

IX.    Powers,  Duties  and  Liabilities. 

A.  Powers — 7.  Presumptive  A'alidity  and  Authority — b.  IVhere  Dis- 
cretion Reposed — (1)  In  General. — Legislative  Board. — The  establishment 
of  railway  passenger  rates  by  the  \'irginia  Corporation  Commission  is  not  res 
judicata  in  a  suit  which  seeks  injunctive  relief  on  the  ground  that  the  rates  are 
confiscatory,  although  such  commission  for  some  purposes  is  a  court,  and  acted 
only  after  hearing  and  investigation,  since  proceedings  to  establish  rates  are 
legislative,  and  not  judicial,  in  their  nature. ^^^ 

C.  Liabilities — 2>4.  Accounting  for  Illicit  Gratuities  and  Gains  From 
Fraudulent  Profits  on  Contracts. — Interests  of  public  justice  will  not  toler- 
ate, under  any  circumstances,  that  a  public  official  shall  retain  any  profit  or 
advantage  which  he  may  realize  through  the  acquirement  of  an  interest  in  con- 
flict with  his  fidelity  as  an  agent.  If  he  takes  any  gift,  gratuity  or  benefit  in 
violation  of  his  duty,  or  acquires  any  interest  adverse  to  his  principle  without 
a  full  disclosure,  it  is  a  betraval  of  his  trust  and  a  breach  of  confidence  and  he 


408-56a.  Effect. — Woodwell  r.  United 
States,  214  U.  S.  82,  33  L.  Ed.  919,  29 
S.    Ct.   57G. 

In  United  States  v.  Saunders,  120  U. 
S.  126,  .30.  L.  Ed.  594,  7  S.  Ct.  467,  speak- 
ing of  §§  1763.  1765,  Rev.  Stat.,  the  court 
said:  "Taking  these  sections  all  to- 
gether, the  purpose  of  this  legislation  was 
1o  prevent  a  person  holding  an  oflice  or 
appointment  for  which  the  law  provides 
a  definite  compensation  by  way  of  sal- 
ary or  otherwise,  which  is  intended  to 
cover  all  the  services  which,  as  such  of- 
ficer, he  may  be  called  upon  to  render, 
from  receiving  extra  compensation,  ad- 
ditional allowances  or  pay  for  other  serv- 
ices which  niay  be  required  of  him  either 
by  act  of  congress  or  by  order  of  the 
head  of  his  departinent,  or  in  any  other 
mode  added  to  or  connected  with  the 
regular  duties  of  the  place  which  he 
holds;  but  that  they  have  no  application 
to  the  case  of  two  distinct  ofiicers, 
places,  or  employments,  each  of  which 
has  its  own  duties  and  its  own  compen- 
sation, which  offices  may  both  be  held 
by  one  person  at  the  same  time.  In  the 
latter  case  he  is.  in  the  eye  of  the  law. 
two  officers,  or  holds  two  places  or  ap- 
pointments, the  functions  of  which  are 
separate  and  distinct,  and.  according  to 
all  the  decisions,  he  is,  in  such  case,  en- 
titled to  recover  the  two  compensations. 
In    the    former    case,    he     performs      the 


added  duties  under  his  appointment  to 
a  single  place,  and  the  statute  has  pro- 
vided that  he  shall  receive  no  additional 
compensation  for  that  class  of  duties  un- 
less it  is  so  provided  by  special  legisla- 
tion" Woodwell  z\  United  States,  214 
U.   S.  82,   53   L.   Ed.  919,   29   S.    Ct.   575. 

Compensation  of  an  inspector  of  elec- 
tric light  plants  in  the  treasur}^  depart- 
ment, for  services  in  installing  an  elec- 
tric light  plant  for  the  buildings  of  the 
interior  department,  at  the  request  of  the 
secretary  of  the  interior,  and  by  the  di- 
rection of  the  secretarv  of  the  treasurv, 
is  forbidden  by  Rev.  St'.  U.  S.,  §  1765  (U. 
S.  Comp.  St.  1901,  §  1007),  though  valu- 
able, and  performed  after  hours,  and  in 
addition  to  regular  duties,  being  the  per- 
formance of  extra  services  not  specially 
required  by  law  and  for  which  it  did  not 
fix  the  remuneration,  and  not  the  filling 
of  two  distinct  places,  offices,  or  employ- 
ments. Judgment  (1906),  41  Ct.  CI.  357, 
affirmed.  Woodwell  z\  United  States, 
214  U.  S.  82,  53  L.  Ed.  919,  29  S.  Ct.  576. 

413-82a.  Albrieht  v.  Sandoval.  216  U. 
S.    331.    54    L.    Ed.    502,   30    S.    Ct.    318. 

413-82b.  Set-Off.— Albright  z:  Sandoval, 
216  U.   S.  331,  54  L.   Ed.  502,  30  S.  Ct.  318. 

419-12a.  Legislative  board. — Prentis  v. 
Atlantic  Coast  Line  Co.,  211  U.  S.  210, 
53  L.  Ed.  150.  29  S.  Ct.  67.  See  the  title 
IX'JUN'CTIOXS,  p.  657. 


IDS'; 


426-427 


PUBLIC  OFFICERS. 


Vol.  X. 


must  account  to  his  principal  for  all  he  has  received.  In  such  cases  it  is  not 
necessary  to  show  affimiative  fraud  or  loss  for  such  agent  has  the  power  to 
conceal  his   fraud  and  hide  the  injury  done  his  principal.-* i'' 

3.  Liability  to  Third  Parties — a.  Personal  Liability  for  Official  Acts — 
(1)    When  Authorized  or  Adopted  by  Government. — See  note  42. 

(3)  Ministerial  Action — (a)  In  General. — Sufficiency  of  Process. — The 
process  that  shall  protect  an  officer  must,  to  use  the  customary  legal  expression, 
be  fair  on  its  face.  By  this  is  not  meant  that  it  shall  appear  to  be  perfectly 
regular,  and  in  all  respects  in  accord  with  proper  practice,  and  after  the  most 
approved  form;  but  what  is  intended  is  that  it  shall  apparently  be  process  law- 
fully issued,  and  such  as  the  officer  might  lawfully  serve.  More  precisely, 
that  process  may  be  said  to  be  fair  on  its  face  which  proceeds  from  a  court, 
magistrate,  or  body  having  authority  of  law  to  issue  process  of  that  nature, 
and  which  is  legal  in  form,  and  on  its  face  contains  nothing  to  notify  or  fairly 
apprise  the  officer  that  it  is  issued  without  authority.  When  such  appears  to 
be  the  process,  the  officer  is  protected  in  making  service,  and  he  is  not  concerned 
with  any  illegalities  that  may  exist  back  of  it.^'"^ 


426-41a.  United  States  i-.  Carter,  217 
U.   S.   28G,   54   L.   Ed.   7G9,  30   S.   Ct.   515. 

Share  in  fraudulent  profits  of  con- 
tractor.— An  army  engineer  in  charge  of 
a  harbor  improvement,  who  secretly  re- 
ceives from  the  contractors  a  proportion 
of  the  abnormal  profits  realized  by  them 
in  the  execution  of  their  contracts,  may 
be  required  to  account  in  equity  to  the 
United  States  for  the  share  so  received, 
without  any  showing  of  any  specific 
abuse  of  discretion  on  his  part,  or  of 
any  actual  loss  to  the  government  by 
fraud  or  otherwise.  Decree  (1909),  172 
F.  1,  96  C.  C.  A.  587,  affirmed.  United 
States  V.  Carter,  217  U.  S.  286,  54  L.  Ed. 
769,    30    S.    Ct.    515. 

Recovery  on  behalf  of  the  government 
against  the  engineer  in  charge  of  a  pub- 
lic improvement,  who  secretly  receives 
from  the  contractors  a  proportion  of  the 
abnormal  profits  realized  by  them  in  the 
execution  of  their  contracts,  is  not  con- 
fined to  the  property  or  securities  into 
which  such  illicit  gains  may  be  traced, 
but  for  any  deficiency  the  government 
may  have  a  personal  judgment.  United 
States  V.  Carter,  217  U.  S.  286,  54  L.  Ed. 
769,  30   S.    Ct.   515. 

"In  Findlay  v.  Pertz.  29  L.  R.  A.  188. 
192,  13  C.  C.  A.  559,  567,  31  U.  S.  App. 
340,  357,  66  Fed.  427,  435,  it  was  applied 
to  a  contract  where  it  was  shown  that  a 
municipal  official,  buying  for  the  mu- 
nicipality, had  received  a  commission 
from  the  seller.  In  that  case  the  cir- 
cuit court  of  appeals  said:  'His  duty 
was  to  give  to  the  public  service  the  full 
benefit  of  a  disinterested  judgment  and 
the  utmost  fidelity.  Any  agreement  or 
understanding  by  which  his  judgment  or 
duty  conflicted  with  his  private  interest 
was  corrupting  in  its  tendency.  We 
know  of  no  more  pernicious  influence 
than  that  brought  about  through  a  sys- 
tem of  commissions  paid  to  public  agents 


engaged  in  buying  public  supplies.  Such 
arrangements  are  a  fruitful  source  of 
public  extravagance  and  speculation.  The 
conflict  created  between  duty  and  in- 
terest is  utterly  vicious,  unspeakably 
pernicious,  and  an  unmixed  evil.  Jus- 
tice, morality,  and  public  policy  unite  in 
condemning  such  contracts,  and  no  court 
will  tolerate  any  suit  for  their  enforce- 
ment.' "  United  States  v.  Carter,  217  U. 
S.   286,   54  L.    Ed.   769,   30   S.   Ct.   515. 

426-42.  Ratification  by  the  executive, 
congress,  and  the  treaty-making  power, 
of  the  action  of  the  military  governor  of 
Cuba  in  abolishing  a  hereditary  office, 
with  its  emoluments,  makes  his  act  that 
of  the  United  States,  and  exonerates  him 
from  all  liability  as  for  a  tort  in  violation 
of  the  law  of  nations,  or  of  a  treaty  of 
the  United  States.  Judgment  (D.  C. 
1906),  142  F.  858,  affirmed.  O'Reilly  de 
Camara  v.  Brooke,  209  U.  S.  45,  52  L.  Ed. 
676,  28  S.   Ct.  439. 

427-47a.  Sufficiency  of  process. — Bryan 
V.  Ker,  222  U.  S.  107,  56  L.  Ed.  114,  32 
S.  Ct.  26,  following  Conner  v.  Long,  104 
U.  S.  228,  237,  26  L-  Ed.  723;  Matthews 
V.  Densmore,  109  U.  S.  216,  27  L.  Ed.  912. 
3  S.  Ct.  126;  Harding  v.  Woodcock,  137 
U.  S.  43,  34  L.  Ed.  580,  11  S.  Ct.  6; 
Stutsman  County  v.  Wallace,  142  U.  S. 
293,  309,  35  L.  Ed.  1018,  12  S.  Ct.  227; 
Marks  v.  Shoup,  181  U.  S.  562,  45  L.  Ed. 
1002.  21  S.  Ct.  724;  Erskine  v.  Hohnbach, 
14  Wall.  613,  20  L.  Ed.  745;  Haffin  v. 
Mason,   15  Wall.   671,   21   L.   Ed.   196. 

Validity  of  attachment — Liability  of 
marshal. — A  writ  in  the  usual  form  of  a 
monition  and  warrant  of  arrest  in  a 
suit  in  rem,  issued  from  the  office  of  the 
clerk  of  a  federal  district  court,  and 
bearing  the  seal  of  that  court,  will  pro- 
tect the  marshal  in  seizing  and  detaining 
a  vessel  in  conformity  to  the  command 
of  the  writ,  although  the  purported  signa- 
ture  of  the   deputy  clerk  was  affixed  un- 


1038 


Vol.  X.  PUBLIC   WORKS.  433-434 

4.  Criminal  Liability — a.  In  General. — See  ante,  "Definition,  Distinctions 
and  Creation,"  I. 

d.  Falsifying  Records. — See  post.  Records.  As  to  sufficiency  of  indictment 
for  falsifying  records  or  public  documents  under  Philippine  Code,  see  ante. 
Indictments,  Informations,   Presentments  and  Complaints,  p.  652. 

XII.    Offenses  against  Civil  Service. 

A.  Solicitation  by  Letter  of  Contribution  for  Political  Purpose. — So- 
licitation by  letter  intended  to  be  received  and  read  by  a  postoffice  employee  in 
the  postoffice  building,  and  which  was  so  received  and  read  in  such  building, 
is  embraced  by  the  provision  of  Civil  Service  Act  Jan.  16,  1883,  c.  27,  §  12, 
22  Stat.  403,  407  (U.  S.  Comp.  St.  1901,  pp.  1217,  1223),  that  no  person  shall, 
in  any  loom  or  building  occupied  in  the  discharge  of  official  duties  by  any  officer 
or  employee  of  the  United  States  mentioned  in  such  act,  solicit,  "in  any  manner 
whatever,"  or  receive,  any  contribution  of  money  or  any  other  thing  of  value 
for  any  political  purpose  whatever."^'' 

PUBLIC   PARKS.— See  ante,  Public  Lands,  p.   1012. 

PUBLIC  POLICY. — See  ante.  Illegal  Contracts,  p.  622;  AIgnopoliEs 
and  Corporate  Trusts,  p.  874;    post,  Restraint  on  Alienation. 

PUBLIC   SCHOOLS.— See  post.  Schools  and  School  Di.stricts. 

PUBLIC    SERVICE.— See   ante,    Privilege,   p.    1006. 

PUBLIC  SERVICE  COMMISSION.— See  ante.  Carriers,  p.  216;  Consti- 
tutional Law,  p.  264;  Injunctions,  p.  657;  Mandate  and  Proceedings 
Thereon,  p.  848;    post.  Railroads. 

PUBLIC  SERVICE  CORPORATIONS.— See  ante,  Carriers,' p.  216;  post, 
Railroads;    Street  R-\ilways;    Telegraphs  and  Telephone:s. 

PUBLIC  TAXES.— See  note  la. 

PUBLIC  WATERS.— See  ante,  Navigable  Waters,  p.  914. 

PUBLIC   WORKS.— See  post.  United  States.     And  see  note   lb. 

der   an   attempted   but   ineffectual   delega-  when    the  lease    was    made  the    borough 

tion   of  authority,   and  although   the   case  had  no  authority  to  tax,  both  parties  were 

stated   in   the   libel   upon   which    the  writ  charged    with     notice    that    such    power 

issued    was    not    cognizable    as    a    suit    in  might,  and  probable  would,  be  conferred 

rem   in   admirality,   but   only   on   personal  when  increase  of  population  made  it  nec- 

action    for    damages.      Bryan  v.    Ker,    222  essary.     Even  if  the  borough   could  have 

U.   S.   107,   56   L.   Ed.   114,  32  S.   Ct.  ^6.  made    a    valid    contract    of    exemption    in 

433-78a.    United    States    v.    Thayer,    209  1792,  there  is  nothing  to  show  that  it  did 

U.   S.  39,  52  L.   Ed.  673,  28   S.   Ct.  426,  re-  so.      On   the   contrary,   the   provision   that 

versing  154   Fed.   508.  the  lessee  was  to  'pay    public    taxes'    was 

_434-la.   Public   taxes   as   embracing   mu-  sufficiently    comprehensive      to     embrace 

nicipal  taxes. — In  1872,  at  a  time  when  it  municipal     taxes     whenever    they      could 

had  no  right  to  tax,   the   municipality   of  thereafter    be    lawfully    assessed    on    land 

Norfolk,     Virginia,    leased     lots    of    land  or  the  improvements  which   were   a  part 

for  ninety-nine   years,   renewable  forever,  of  the   land.     Where   one   relies   upon   an 

the   lessees   and   their   assigns   to   pay  the  exemption  from  taxation,  both   the  power 

annual   rent  and   "the  public  taxes   which  to  exempt  and  the  contract  of  exemption 

shall   become   due   on   said   land."      Subse-  must   be   clear.     Any   doubt   or   ambiguity 

quently  the  city  was  given  the  power  of  must  be  resolved  in  favor  of  the  public." 

taxation,    but    made    no    effort    to    assess  Perry  Co.  v.   Norfolk,   220  U.   S.   472,   477, 

these    lots    until    1906.      The    lessees    then  55    L.  Ed.    548,    31  S.    Ct.    465.      See   ante, 

sought   to   enjoin   their   collection   on   the  MUNICIPAL  CORPORATIONS,  p.  895; 

ground  that  the  public  taxes  they  had  as-  post,   TAXATION. 

sumed  were  those  which  might  be  due  to  434-lb.      Public    work. — A    contract    to 

the  State  and  to  the  United  States.     The  build  and  deliver  a  steamer  for  the  United 

court     said:       "It    is    admitted     that    the  States  was  a  public  work  under  the   Act 

lessees     have     expressly     agreed     to     pay  of  August  13,  1894,  c.  280,  28  Stat.  278,  as 

taxes  due  Virginia  or  the  federal  govern-  amended  by  the  Act  of  February  24,  1905, 

ment,   regardless   ot   the   character   of  the  c.    778,    33    Stat.    811,    protecting    persons 

estate  created.     And,  while  it  is  true  that  furnishing     materials    or     labor    "for     the 

1039 


434-435  QUIETING  TITLE.  Vol.  X. 

PURCHASE.— See  note   Ic. 

PURCHASERS. — See  post,  Sales;    \'endor  and  Purchaser. 

PURE  COLORS.— See  note  a. 

PURE  FOOD  LAW. — See  references  ante,  under  Foods  and  Drugs,  p.  584. 

PURPOSE    OR    INTENT.— See    note   b. 

PUTATIVE  CRIMINALS.— See  note  c. 

QUARANTINE. — See  the  title  Quarantine,  vol.  10,  p.  435,  and  references 
there  given.  In  addition,  see  ante,  Animals,  p.  27;  Carriers,  p.  216;  Inter- 
state and  Foreign  Commerce,  p.  689;   Police  Power,  p.  955. 

QUESTIONS  OF  LAW  AND  FACT. — See  references  under  Questions  of 
Law  and  Fact,  vol.  10.  p.  436.     In  addition,  see  ante.  Evidence,  p.  558. 


QUIETING  TITLE. 

II.  Jurisdiction  of  Equity  and  Grounds  for  Relief,  1041. 

A.  Equity  Jurisdiction  Generally,   1041. 

B.  Enlargement  by  Statute,  1041. 

C.  What  Constitutes  a  Cloud,   1041. 

2.  X'oid   Instruments  and  Proceedings,   1041. 

b.    Invalidity  Apparent  Only  in  Connection  with  Extrinsic  Evi- 
dence,   1041. 
f.  Illegal  Taxes  and  \*oid  Tax  Sales,   1041. 
j.  Deeds,  1041. 

D.  Principles  and  Conditions  Governing  Exercise,   1042. 

3.  Adequate  Remedy  at  Law,   1042. 

b.  Possession  and  Previous  Trial  at  Law,   1042. 
(1)   Necessity,  1042. 

(a)  In  General,  1042. 

(b)  Under  State  Statutes,   1042. 
aa.  Possession,    1042. 

bb.  Previous   Trial  at  Law,   1042. 

construction  of  public  works."  Title  Guar-  be   to  enable  any  common  carrier  to  ex- 

anty.  etc.,  Co.  v.  Crane  Co.,  219  U.   S.  24.  rmpt   itself   from   any   liability   created  by 

31.  55  L.  Ed.  72,  .SI   S.  Ct.   140.     See  ante.  lliis  act."     The  provisions  of  §  5  were  in- 

MECHANICS'   LIENS,   p.   861.  tended  to  apply  as  well  to  existing,  as  to 

434-lc.  Purchase. — In  §  452  of  the  Re-  future,  contracts  and  regulations  of  the 
vised  Statute  v.diereby.  "the  officers,  described  character.  The  words,  "the 
clerks,  and  employees  in  the  general  land  purpose  or  intent  of  which  shall  be  to  en- 
office  are  prohibited  from  directly  or  in-  al)le  any  common  carriei  to  exempt  itself 
directly  purchasing  or  becoming  inter-  from  any  liability  created  by  this  act."  do 
ested  in  the  purchase  of  any  of  the  pub-  not  refer  simply  to  an  actual  intent  of  the 
lie  land,"  the  term  purchase  is  inclusive  parties  to  circumvent  the  statute.  The 
of  the  various  modes  of  securing  title  to  purpose  or  intent  of  the  contracts  and 
or  rights  in  public  lands  under  the  gen-  regulations,  within  the  meaning  of  the 
eral  laws  regulating  their  disposal.  Was-  section,  is  to  be  found  in  their  necessary 
key  V.  Hammer,  2;23  U.  S.  85,  92,  56  L.  operation  and  effect  in  defeating  the  lia- 
Ed.  359,  32  S.  Ct.  187.  See  ante,  PUBLIC  bility  which  the  statute  was  designed  to 
LAXDS,  p.   1012.  enforce.      Only   by    such    general    applica- 

435-a.      Pure    colors. — See    Heath,    etc.,  tion  could  the  statute  accomplish  the  ob- 

Mfg.  Co.  V.  Worst,  207  U.  S.  338,  52  L.  Ed.  ject   which   it   is   plain   that    congress   had 

236.  28  S.   Ct.   114.     See.  also,  ante,   CAR-  m  view.     Philadelphia,  etc.,  R.  Co.  v.  Schu- 

BONATE    OF    LEAD.    p.    215.      And    see  bert,  224  U.   S.   603,  608,  56  L.   Ed.  911.  32 

ante,  POLICE  POWER,  p.  955.  S.     Ct.     589.       See     ante.     INTERSTATE 

435-b.  Employers'  Liability  Act.—  AND  FOREIGN  CO^IMERCE,  p.  689. 
Section  5  of  the   Employers'  Lialnlity  Act  435-c.       Putative     criminals. — See     Lang 

of  April  22,  1908,  declares  void  ''any  con-  v.    New   Jersey,    209  U.  S.    467,  52  L.    Ed. 

tract,   rule,   regulation,    or   device   whatso-  894,     28     S.      Ct.    594.       See.      also,      ante, 

ever,  the  purpose  or  intent  of  which  shall  GRAND  JURY,  p.  609. 

1040 


Vol.  X. 


QUIETIXG  TITLE. 


439-442 


7.  Complainant   Must  Do   Equity,   1042. 

a.  In  General,  1042. 

b.  Payment  of  Liens  Assumed  as  Part  of  Purchase  Price,  1042. 
E.  Effect  of  Acts  Pendente  Lite  as  Defeating  Jurisdiction,  1043. 

III.  Proceedings,   1043. 

A.  Enforcement  by  Federal  Courts.   1043. 
A^.  Limitations  and  Laches,    1043. 
F    Bill.  Petition  or  Complaint,  1043.  . 
Oy^.  Plea  or  Answer,   1044. 
Kj/^.  Issues   and   Findings,   1044. 

CROSS   REFERENCES. 

See  the  title  Quieting  Title,  vol.  10,  p.  437,  and  referenc.es  there  given. 
As  to  federal  courts  following  state  decisions,  see  ante,  Courts,  p.  398. 

II.    Jurisdiction  of  Equity  and  Grounds  for  Relief. 

A.  Equity  Jurisdiction  Generally. — See  note  5. 

B.  Enlargement  by  Statute. — See  note  6. 

C.  What  Constitutes  a  Cloud — 2.  \'oid  Instruments  and  Proceedings 
— b.  InvaVidity  Apparent  Only  in  Connection  zmth  Extrinsic  Evidence. — See 
note  19. 

f.   Illegal  Taxes  and  J'oid  Tax  Sales. — See  notes  21,  23. 

j.  Deeds. — \Miere  an  invalid  deed  whose  invalidity  rests  upon  matters  in 
pais  casts  a  cloud  upon  the  title  of  the  complainant,  equity  will  decree  the  can- 
cellation of  the  same.-^^ 


439-5.  Equity  jurisdiction. — Boise,  etc., 
Water  Co.  v.  Boi.se  City,  213  U.  S.  276, 
53   L.   Ed.   796,   29    S.    Ct.   426. 

439-6.  Georgia. — Graves  z'.  Ashburn, 
215  U.  S.  331,  54  L.  Ed.  217,  30  S.  Ct.  108. 

Iowa,  Nebraska  and  Utah. — Lawson  v. 
United  States  ^lin.  Co.,  207  U.  S.  1,  52 
L.   Ed.   65,  28   S.   Ct.   15. 

441-19.  Invalidity  apparent  only  in 
connection  with  extrinsic  evidence. — 
Graves  v.  Ashburn,  215  U.  S.  331,  54  L. 
Ed.  217,  30  S.  Ct.  108.  See  post, 
"Deeds,"    II,    C,   2,   j. 

441-21.  Illegal  sale. — Boise,  etc.,  Water 
Co.  z:  Boise  City,  213  U.  S.  276,  53  L. 
Ed.    796,   29    S.    Ct.   426. 

441-23.  A  municipal  ordinance  impos- 
ing a  license  fee  on  public  service  cor- 
porations does  not  cast  a  cloud  upon  the 
title  of  the  company  to  its  franchises, 
where  the  municipality's  only  remedy, 
for  the  collection  of  the  license  fee,  is 
an  action  at  law  in  which  the  illegality 
of  the  ordinance  is  open,  the  license  not 
being  a  lien  upon  the  franchises  or  any 
other  .  property  of  the  companj-.  The 
company's  real  point  here  is  not  tiiat  the 
ordinance  imposing  a  license  fee  casts  a 
cloud  upon  its  title,  but  that  the  reason 
alleged  to  have  induced  the  ordinance, 
namely,  the  city's  claim  that  the  com- 
pany has  no  more  than  a  mere  permis- 
sion to  occupy  the  streets,  unfavorably 
aflfects  its  property  and  impairs  its 
credit.      Boise,    etc..    Water    Co.    i'.    Boise 


Citv.  213  U.  S.  276.  53  L.  Ed.  796,  29  S. 
Ct.    426. 

442-26a.  Deeds. — The  inability  of  the 
grantee  in  a  fraudulent  deed  to  recover 
if  he  should  sue  does  not  defeat  the  right 
to  have  a  deed  canceled  as  a  cloud  on 
title,  wliere  the  invalidity  does  not  ap- 
pear upon  the  face  of  the  deed,  but  rests 
partly  on  matter  in  pais,  and  where  pos- 
session under  it  for  seven  years  might, 
under  Civ.  Code  Ga.  1895,  §  3589,  give 
title.  Decree,  Ashburn  v.  Graves  (1007), 
149  F.  968,  79  C.  C.  A.  478,  reversed. 
Graves  v.  Ashburn,  215  U.  S.  331.  54  L. 
Ed.  217.  30  S.  Ct.  ins. 

Project  abandoned  and  deed  returned 
to  grantor  after  record. — A  cloud  on  the 
title  of  the  owner  of  land  in  Greer 
county,  Okla.,  under  patent  from  the 
United  States,  created  by  the  record  of 
a  deed  previously  executed  by  him  while 
he  was  claiming  ownership  under  a  Texas 
patent,  m  pursuance  of  an  arrangement 
whereby  the  grantees  were  to  sell  the 
land  and  to  collect  certain  notes  for  the 
purchase  price  of  property  which  the 
grantor  had  already  sold,  and  to  turn 
over  two-thirds  of  the  proceeds  to  the 
grantor,  retaining  one  third  for  their 
commissions,  will  be  removed  and  the 
deed  canceled,  where  the  project  was 
abandoned  and  the  deed  was  returned  to 
the  grantor,  together  with  the  notes. 
Judgment  (1906),  87  P.  669,  17  Okl.  40, 
affirmed.  Bogard  v.  Sweet,  209  U.  S. 
464.  52  L.  Ed.  892.  28  S.  Ct.  595. 


12  U  S  Enc— 66 


1041 


445-447 


QUIBTIXG  TITLE. 


Vol.  X. 


D.  Principles  and  Conditions  Governing  Exercise — 3.  Ade^quate:  Rem- 
edy AT  Law — b.  Possession  and  Previous  Trial  at  Lazi' — (1)  Necessity — 
(a)  In  General. — It  was  generally  necessary  that  the  plaintiff  in  a  suit  to  quiet 
title  should  be  in  possession  of  the  property  and,  except  where  the  defendants 
were  numerous,  that  his  title  should  have  been  established  at  law  or  be  founded 
on  undisputed  evidence  or  long-continued  possession. ^*'^ 

(b)     Under  State  Statutes — aa.    Possession. — See  note  40. 

bb.  Previous  Trial  at  LauK — By  statute  in  some  of  the  states  a  prior  suc- 
cessful adjudication,  in  an  action  at  law,  of  the  complainant's  legal  title  is  not 
essential. ^^^ 

7.  Complainant  Must  Do  Equity — a.  In  General. — A  person  suing  to  quiet 
his  title  must  do  equity  as  a  condition  precedent  to  a  decree  in  his  favor.-*^'' 

b.  Paxment  of  Liens  Assumed  as  Part  of  Purchase  Price. — The  purchaser  of 
mortgaged  property,  under  an  agreement  to  pay  the  lien  of  the  mortgages  and 


445-363.    Possession  and  previous  trial. 

— Lawson  z'.  United  States  Min.  Co., 
207  U.  S.  1,  52  L.  Ed.  65,  28  S.  Ct.  15, 
following  Holland  v.  Challen,  110  U.  S. 
15,  28  L.  Ed.  52.  3  S.  Cl.  495.  which  cited 
Alexander  z'.  Pendleton,  8  Cranch  462, 
3  L.  Ed.  624;  PeirsoU  v.  Elliott,  6  Pet. 
95,  8  L.  Ed.  332,  and  Orton  z\  Smith,  IS 
How.   263.    15    L.    Ed.    393. 

446-40.  Possession. — Lawson  f.  United 
States  Min.  Co.,  207  U.  S.  1,  52  L.  Ed. 
65,    28    S.    Ct.    15. 

Where  the  premises,  or  the  greater 
part  of  them,  are  woodland,  not  inclosed 
by  fences,  but  in  their  original  natural 
condition,  "possession  is  a  fiction  of  law 
rather  than  a  possible  fact,  and  it  would 
be  reasonable  to  assume  that  possession 
remains  with  the  title.  Green  z'.  Liter, 
8  Cranch  229,  3  L.  Ed.  545;  Ga.  Code, 
§  3878.  We  may  say  more  broadly,  and 
without  qualifying  Lawson  v.  United 
States  Min.  Co.,  207  U.  S.  1,  9,  52  L.  Ed. 
65,  28  S.  Ct.  15,  that,  in  view  oi  the  stat- 
ute, the  relief,  in  case  of  such  lands, 
should  not  be  made  to  depend  upon  the 
shadowy  distinctions,  according  to  the 
greater  or  less  extent  of  the  trespasses 
committed.  See  Holland  v.  Challen,  110 
U.  S.  15,  28  L.  Ed.  52,  3  S.  Ct.  495;  Sim- 
mons Creek  Coal  Co.  •c'.  Doran,  142  U. 
S.  417,  449,  35  L.  Ed.  1062,  12  S.  Ct.  239. 
It  has  been  intimated  by  the  Georgia 
court  that  reliei  would  be  granted,  irre- 
spective of  possession.  Pierce  z'.  Middle 
Georgia  Land  &  Lumber  Co.,  131  Ga.  99, 
61  S.  E.  1114;  Griffin  z>.  Sketoe,  30  Ga. 
300.  See,  also,  Sharon  z'.  Tucker,  144  U. 
S.  533,  543,  36  L.  Ed.  532,  12  S.  Ct.  720." 
Graves  z:  Ashburn,  215  U.  S.  331.  54  L. 
Ed.   217,  30  S.   Ct.   108. 

Nebraska. — In  Holland  r.  Challen.  110 
U.  S.  15,  28  L.  Ed.  52,  3  S.  Ct.  495.  it  was 
held  that  under  the  Nebraska  statute  a 
suit  might  be  maintained  by  one  out  o^ 
possession  against  another  also  out  of 
possession,  to  quiet  the  title  of  the 
former  to  the  premises.  It  was  said  that 
it  was  "a  case  in  which  an  enlargement 
of   equitable    rights    is    effected,    although 


presented  in  the  form  of  a  remedial  pro- 
ceeding." Lawson  v.  United  States  Min. 
Co..  207  U.  S.  1,  52  L.  Ed.  65,  28  S.  Ct.  15. 

446-41a.  Previous  trial. — Lawson  v. 
United  States  Min.  Co.,  207  U.  S.  1,  52  L. 
Ed.   65,    28    S.    Ct.    15. 

Iowa  and  Nebraska. — In  Holland  v. 
Challen,  110  U.  S.  15,  28  L.  Ed.  52,  3  S. 
Ct.  95,  it  was  said:  "The  statute  of  Ne- 
braska authorizes  a  suit  *  *  *  without 
reference  to  any  previous  judicial  de- 
termination of  the  validity  of  the  plain- 
tiff's right,  and  without  reference  to  his 
possession.  Any  person  claiming  title  to 
real  estate,  whether  in  or  out  of  posses- 
sion, may  maintain  the  suit  against  one 
who  claims  an  adverse  estate  or  interest 
in  it,  for  the  purpose  of  determining  such 
estate  and  quieting  the  title."  Lawson 
r.  United  States  Min.  Co.,  207  U.  S.  1, 
52   L.    Ed.   65,   28    S.   Ct.    15. 

"The  same  question  was  considered 
and  decided  in  the  same  way  in  respect 
to  a  suit  based  upon  a  similar  statute,  in 
Iowa,  in  Wehrman  z\  Conklin,  155  U.  S. 
314,  39  L.  Ed.  167,  15  S.  Ct.  129."  Law- 
son  r.  United  States  Min.  Co.,  207  U.  S. 
1,  52  L.   Ed.  65,  28   S.   Ct.   15. 

Utah. — The  holder,  through  a  patent 
from  the  United  States,  of  the  legal  title 
to  a  lode  mining  claim,  in  possession, 
may  maintain  a  suit  in  equity,  in  a  fed- 
eral circuit  <:ourt  sitting  in  Utah,  with- 
out a  prior  adjudication  in  an  action  at 
law  of  its  legal  title,  to  quiet  title  and  to 
restrain  defendants  from  further  mining 
or  removing  ore  from  beneath  the  sur- 
face of  such  claim,  in  view  of  the  pro- 
visions of  Utaii  Rev.  Stat.,  §  3511,  that 
an  action  ma}^  be  brought  by  any  person 
against  another  who  claims  an  estate  or 
interest  in  real  property  adverse  to  him, 
for  the  purpose  of  determining  such  ad- 
verse claim.  Lawson  z\  United  States 
Min.  Co.,  207  U.  S.  1,  52  L.  Ed.  65.  28  S. 
Ct.  15. 

447-45a.  Complainant  must  do  equity. 
— Stoffela  z:  Nugent,  217  U.  S.  499,  54  L. 
Ed.    856,   30   S.    Ct.   600. 


1042 


Vol    X.  QUIET  I XG  TITLE.  447-450 

the  judgments  of  foreclosure  thereon,  is  not  entitled  to  have  his  title  quieted 
as  against  the  mortgagee,  without  paying  the  mortgage  debt,  although  the 
mortgagee  in  bad  faith  evaded  the  purchaser's  effort  to  make  such  payment, 
and  with  full  knowledge  of  the  facts,  and  with  intent  to  defraud,  procured 
from  the  mortgagor  a  conveyance  of  a  part  of  the  premises,  and  a  new  mort- 
gage on  the  residue,  and  satisfied  of  record  the  former  mortgages  and  judg- 
ment liens.^^" 

E.  Effect  of  Acts  Pendente  Lite  as  Defeating  Jurisdiction. — The  cut- 
ting pendente  lite  by  the  grantee  in  a  fraudulent  deed  of  the  timber  valuable 
for  turpentine  purposes  on  a  part  of  the  land  does  not  defeat  the  jurisdiction 
of  equity  to  enjoin  further  cutting.'*^'^ 

in.    Proceedings. 

A.  Enforcement  by  Federal  Courts. — Administration  of  Relief  under 
State  Statutes. — Where  a  state  statute  enlarges  the  ancient  jurisdiction  of 
courts  of  equity  in  respect  to  suits  to  quiet  title,  the  equitable  rights  them- 
selves remaining,  the  enlargement  thereof  may  be  administered  by  the  federal 
courts  sitting  as  courts  of  equity,  as  well  as  by  the  courts  of  the  state,  subject 
to  the  constitutional  rights  of  the  parties  to  a  trial  by  jury,  and  to  the  express 
provisions  of  Rev.  Stat.,  §  723,  inhibiting  suits  in  equity  in  any  case  where  a 
plain,  complete  and  adequate  remedy  may  be  had  at  law.'*^^ 

A|.  Limitations  and  Laches. — A  patent  from  the  United  States,  invalid 
when  made,  after  five  years  without  attack,  must  be  deemed  to  have  the  same 
eflfect  as  against  the  United  States  in  a  suit  to  remove  a  cloud  on  title  as  though 
it  were  valid  when  issued,  in  view  of  the  Act  of  March  3,  1891  (26  Stat,  at  L. 
1099,  chap.  561),  §  8,  although  this  section  in  form  only  bars  suits  to  annul 
the  patent.^^^ 

F.  Bill,  Petition  or  Complaint. — Allegation  in  Detail  of  Title  and 
Possession. — In  an  action  to  determine  adverse  claims,  it  was  unnecessary 
to  allege  in  detail  plaintiff's  chain  of  title,  or  to  refer  to  the  issuance  of  a  patent 
to  one  of  the  defendants ;  and  the  fact  that  this  was  done,  and  that  the  com- 
plaint alleged  that  the  patent  was  issued  through  mistake  and  fraud,  did  not 
alter  the  nature  of  the  action,  or  add  anything  to  the  force  of  the  pleadings.^^^ 

Successful  Trial  at  Law. — A  bill  to  quiet  title  to  land  against  a  singly  ad- 
verse  claimant   must   aver   that   complainant's   title   has   been   established   by  at 

447-45b.    Payment   of  liens.— Stoffela  z'.  firming    Whitehead    v.    Shattuck,    138    U. 

Xupent,    217    U.    S.    499,   54   L.    Ed.   856,   30  S.   146,   34   L.    Ed.   873,   11    S.    Ct.   276. 

S.   Ct.   600.  448-51a.  Limitations  and  laches. — United 

447-45C.     Acts    pendente     lite.— Decree,  States   f.    Chandler-Dunliar   Water   Power 

Ashburn  v.    Graves    (1907),    149    F.   968,   79  Co.,    209    IJ.    S.    447,    52    L.    Ed.    881,    28    S. 

C.    C.    A.    478,    reversed.      Graves   v.    Ash-  Ct.    579,    affirming    152    Fed     25     81    C.    C. 

burn    21^  T^     S    331     54   L    Fd    "17    30   S  A.  271.     v^ee  the   title  LIMITATION   OF 

Ct  108  ACTIONS    AND    ADVERSE    POSSES- 

448-48a.     Relief   under    state    statutes.-       ^^4^0^-611  ^ Bill    petition    or     complaint.- 

Lawson    r.    United    States    Mm  _Co.     20.        ^  ^,    g^^^^j^  ^and,  etc.,   Co..  203  U. 

U.  S^l,  02  L.  Ed^6o    28  SCt.lo    follow^        S  .^    ^     gj     32       ^^    g.    Ct.    780,    af- 

t"^t:«^    io"o    c     r^'  o"'            ^     ^-        '  firming   91    Minn.    84,    97    N.   W.   575. 

L.   Ed.   52,   3   b.   Lt.   49d.  ^^^    cancellation    for    fraud    of    a    deed 

"Such   a  statute  can  not  be  relied  upon  ^^    land    containing    pine    woods    valuable 

in   the   federal   courts   to   sustain   a  bill   in  ^^^   timber   and   turpentine   should   not   be 

equity   by   one    out   of  possession    against  denied    because    the    complainants    do    not 

one   in   possession,    for   an    action    at   law  allege  that  they  are  in  possession  of  the 

in   the    nature    of   an    action    of   ejectment  j^nd.     Decree,   Ashburn  ?■.   Graves   (1907), 

affords    a    perfectly    adequate    legal    rem-  140    p     ggg     79    (^     q     \.     478,     reversed, 

edy."     Lawson  v.  United  States  Min.   Co.,  Graves   z'     X«hburn,   215    U.    S.   331,   54   L. 

207  U.  S.  1,  52  L.  Ed.  65,  28  S.  Ct.   15,  af-  EJ    217^  30   S.   Ct.   108. 

1043 


451-453  QUO  WARRANTO.  Vol.  X. 

least  one  successful  trial  at  law  before  equity  will  entertain  jurisdiction,^-^ 
unless  by  force  of  a  statute  such  adjudication  is  not  necessary  to  the  mainte- 
nance of  such  suit.^^*" 

GJ.  Plea  or  Answer. — Under  Code  Civ.  Proc,  §  437,  providing  that  the 
answer  of  defendant  shall  contain  a  general  or  specific  denial  of  the  allegations 
of  the  complaint,  an  answer  in  a  suit  to  quiet  title  need  not  allege  defendant's 
title,  but  only  deny  the  plaintiff's  allegation,  though,  to  entitle  defendant  to 
avail  himself  of  an  equitable  title  as  against  plaintift''s  legal  title,  it  should  be 
specifically  pleaded. ^*^^ 

K|.  Issues  and  Findings. — In  an  action  to  quiet  title,  there  is  no  occasion 
for  a  finding  as  to  any  alleged  title  of  plaintiff  not  set  up  in  the  complaint.*^^" 
Under  Code  Civ.  Proc,  §  437,  providing  that  the  answer  of  defendant  shall  con- 
tain a  general  or  specific  denial  of  the  allegations  of  the  complaint,  a  finding  in 
a  suit  to  quiet  title  on  the  issues  raised  by  denial  of  the  allegations  of  the  com- 
plaint, if  adverse  to  plaintiff',  is  sufficient,  without  finding  defendant's  title.*^^' 

QUI,   SERIUS,  ETC.— See  note  a. 

QUO  WARRANTO. 

CROSS   REFERENCES. 
See  the  title  Quo  Warranto,  vol.  10,  p.  453,  and  references  there  given. 
In  addition,  see  post.  Religious  Socie^tiEs. 

As  to  alignment  of  parties  in  quo  warranto  to  sustain  jurisdiction  of  fed- 
eral court  on  grounds  of  diverse  citizenship,  see  ante.  Courts,  p.  398.  As  to 
nonfederal  questions  on  appeal  or  writ  of  error  to  judgment  in  quo  warranto 
proceedings  in  state  court  to  oust  foreign  corporations,  see  ante,  Appeal  and 
Error,  p.  34.  As  to  conclusiveness  on  appeal  of  ruling  of  state  court  that  it 
had  jurisdiction,  see  ante.  Appeal  and  Error,  p.  34.  As  to  modifying  judg- 
ment of  ouster  in  quo  warranto  against  foreign  corporations,  which  can  not  be 
reversed  as  no  federal  question  involved,  see  ante.  Appeal  and  Error,  p.  34. 

Nature  and  Purpose — Relief  Offered. — See  note  4. 

451-63a.    Lawson  v.  United  States   Min.  452-a.      Qui,    serius,    etc. — "The     Latin 

Co.,  207  U.  S.  1,  52  L.  Ed.  65,  28  S.  Ct.  15.  proverb,    qui,    cito   dat    bis    dat— he    who 

There   is   nothing   in   the   point   decided  gives    quickly   gives    twice — has    its    coun- 

in  Boston,  etc.,  Min.  Co.  v.  Montana  Ore  terpart  in  a  maxim  equally  sound — qui  se- 

Purchasing  Co.,  188  U.   S.   632,   47   L.   Ed.  rius  solvit,  minus  solvit — he  who  pays  too 

626,    23    S.    Ct.   434,    which,     rightly      con-  late  pays  less."     Hubert  v.   New  Orleans, 

sidered,    conflicts    with    the    case    of    Hoi-  215  U.  S.  170,  180,  54  L.  Ed.  144,  30  S.  Ct. 

land  z\    Challen,   110    U.    S.   15,   28   L.    Ed  40,  quoting  Mr.  Justice  Field  in  Louisiana 

52,    3      S.     Ct.    495.       Lawson    v.     United  v.  New  Orleans,  102  U.  S.  203,  200,  26  L. 

States    Min.    Co.,   207   U.    S.   1,    52   L.    Ed.  Ed.    132.      See    ante,    IMPAIRMENT    OF 

05,  28  S.  Ct.  15.  OBLIGATION     OF    CONTRACTS,     p 

451-63b.    Lawson  v.  United   States   Min.  624.                                                            ' 

Co.,  207  U.   S.   1,  52  L.   Ed.   65,  28   S.   Ct.  453-4.     Nature   and  purpose   of  relief. — 

15,   following   Holland   v.   Challen,   110   U.  "Proceedings    by    information    in    the    na- 

S.  15,  28  L.  Ed.  52,  3  S.   Ct.  495.  ture   of   quo   warranto   differ   in   form   and 

451-66a.    Plea  or   answer. — United  Land  consequence    from    a    prosecution    by    in- 

Ass'n  V.   Abrahams,   208   U.    S.   614,   52   L.  dictment  for  violation  of  a  criminal   stat- 

Ed.   645.   28   S.   Ct.   509,   affirming  139   Cal.  ute.   In  the   one,  the   state   proceeds   for   a 

370.  00  Pac.  1064.  violation    of    the    company's    private    con- 

452-68b.     Issues    and    findings. — United  tract;    in    the    other,    it    prosecutes    for    a 

Land   Ass'n   v.   Abrahams,   208   U.    S.    614,  violation  of  public  law.     The  corporation 

52  L.  Ed.  645,  28  S.  Ct.  569,  affiriTiing  139  may  be  deprived  of  its  franchise  for  non- 

Cal.  370.  09  Pac.  1064.  user,   a  mere   failure   to  act.     It  may  also 

452-68C.     United    Land    Ass'n    v.    Abra-  be     deprived    of    its     charter      for      that 

hams,  208  U.   S.  614,  52  L.   Ed.   645,  28   S.  which,    though     innocent      in      itself.      is 

Ct.    568,    affirming    139    Cal.    370,    69    Pac.  beyond    the    power    conferred    upon    it    as 

1064.  an  artificial  person.     If,  however,  the  act 

1044 


Vol.  X. 


OUO  IV  ARE  AX  TO. 


453 


Constitutionality. — See  note  5. 


of  misuser  is  not  only  ultra  vires  but 
criminal,  there  is  no  merger  of  the  civil 
liability  in  the  criminal  offense.  Separate 
proceedings  may  be  instituted,  one  to 
sectire  the  civil  judgment,  and  the  other 
to  enforce  the  criminal  law.  Both  cases 
may  involve  a  consideration  of  the  same 
facts;  and  evidence  warranting  a  judg- 
ment of  ouster  may  be  sufficient  to  sus- 
tain a  conviction  for  crime.  A  judgment 
may  in  one  case  sometimes  be  a  bar  to 
the  other;  but  neither  remedy  is  ex- 
clusive. The  double  liability,  in  civil  and 
criminal  proceedings,  finds  its  counter- 
part in  many  instances;  as,  for  ex- 
ample, where  an  attorney  is  disbarred 
or  ousted  of  his  right  to  practice  in  the 
court  because  of  conduct  for  which  he 
may  likewise  be  prosecuted  and  fined." 
Standard  Oil  Co.  z:  Missouri,  224  U.  S. 
270,  56  L.  Ed.  760,  32  S.  Ct.  406. 

"The  uncertainty  as  to  the  relief  that 
may  be  granted  in  such  case  arises  from 
the  fact  that  at  one  time  the  proceeding 
was  wholly  criminal,  and  those  guilty  of 
usurping  a  franchise  were  prosecuted  by 
information  instead  of  by  indictment,  and 
punished  both  by  judgment  of  ouster  and 
by  fine,.  But  in  England,  before  the 
revolution,  and  since  that  date  in  most 
of  American  states,  include  Missouri, 
quo  warranto  has  been  resorted  to  for 
the  purpose  of  trying  the  civil  right,  and 
determining  whether  the  defendant  had 
usurped  or  forfeited  the  franchise  in 
question.  After  this  method  of  procedure 
began  to  be  used  as  a  form  of  action  to 
try  title,  it  was  inevitable  that  the  civil 
feature  would  tend  to  dominate  in  fixing 
its  character  for  all  purposes.  But  the 
disctission  as  to  the  nature  of  such  writs 
and  the  character  of  the  judgment  that 
could  be  entered,  though  not  controlled 
by  their  use  (Coffey  v.  County  of  Harlan, 
204  U.  S.  659,  664,  51  L.  Ed.  666,  27  S.  Ct. 
305;  Huntington  v.  Attrill,  146  U.  S.  657, 
667,  36  L.  Ed.  1123,  13  S.  Ct.  224;  Bovd 
V.  United  States,  116  U.  S.  616,  634,  29 
L.  Ed.  746,  6  S.  Ct.  524),  has  been  pro- 
longed by  the  retention  of  the  words  in- 
formation, prosecute,  guilty,  punish,  fine, 
survivals  of  the  period  when  the  writ 
was  a  criminal  proceeding  in  every  re- 
spect." Standard  Oil  Co.  z'.  Missouri. 
224  U.  S.  270,  56  L.  Ed.  760,  32  S.  Ct. 
406. 

"In  some  jurisdictions  the  writ  is  still 
treated  as  criminal,  both  in  the  proce- 
dure adopted  and  in  the  relief  afforded. 
State  V.  Kearn,  17  R.  I.  401.  22  Atl.  322, 
1018.  But  there  are  practically  no  de- 
cisions which  deal  with  the  nature  and 
amount  of  the  fine  which  can  be  entered 
in  states  where,  as  in  Missouri,  quo  war- 
ranto is  treated  as  a  purely  civil  proceed- 
ing.    The   references  to  the   subject,   both 


in  te.xt-books  and  opinion,  are  few  and 
casual.  They  usually  repeat  Blackstone's 
statement  (3  Com.  262)  that  the  writ  is 
now  used  for  trying  the  civil  right,  "the 
fine  being  nominal  only.'  Ames  z'. 
Johnston,  111  U.  S.  449,  470.  28  L.  Ed. 
482,  4  S.  Ct.  437;  Com.  v.  Woelper.  3 
Serg.  &  R.  53;  High,  Extr.  Legal  Rem. 
702,  697,  593.  These  authorities  and  the 
general  practice  indicate  that  in  most  of 
the  American  states  only  a  nominal  fine 
can  be  imposed  in  civil  quo  warranto 
proceedings.  We  shall  not  enter  upon 
any  discussion  of  the  question  as  to  the 
character  of  the  proceeding  nor  the 
amount  and  nature  of  the  money  judg- 
ment. For,  in  Missouri,  and  prior  to  tue 
decision  in  this  case,  the  rulings  were 
to  the  effect  that  the  supreme  court  of 
Missouri  had  jurisdiction  not  only  to 
oust,  but  to  impose  a  substantial  fine  in 
quo  warranto."  Standard  Oil  Co.  z\ 
Missouri,  224  U.  S.  270.  50  L.  Ed.  760,  32 
S.    Ct.   406. 

A  corporation  may,  in  a  quo  warranto 
proceeding  in  Missouri,  be  sub;ected  to 
a  substantial  fine  as  well  as  to  a  judg- 
ment of  ouster,  quo  warranto  in  that 
state  being  regarded  as  purely  civil  in  ii  i 
nature.  Standard  Oil  Co.  z\  Alissouri, 
224  U.   S.  270,  56  L.  Ed.  760,  32   S.   Ct.  400. 

"In  addition  to  these  considerations  it 
is  to  be  noted  that  though  the  Antitrust 
Act  provides  for  penalties  somewhat 
similar  to  those  which  may  be  entered 
in  quo  warranto  proceedings,  the  statute 
did  not,  and,  as  held  by  the  supreme 
court,  could  not,  lessen  the  power  con- 
ferred upon  it  to  hear  and  determine  quo 
warranto  proceedings,  and  to  enter  judg- 
ments which,  on  general  principles,  ap- 
pertained to  the  exercise  of  such  con- 
stittitional  jurisdiction.  Standard  Oil  Co. 
z:  Tennessee,  217  U.  S.  413,  421,  54  L. 
Ed.  817,  30  S.  Ct.  543;  Delmar  Jockey 
Club  z:  Missouri,  210  U.  S.  324,  52  L 
Ed.  1080.  28  S.  Ct.  732."  Standard  Oil 
Co.  Z'.  Missotiri,  224  U.  S.  270,  56  L.  Ed. 
760,    32    S.    Ct.    406. 

453-5.  Due  process  of  law — Notice  and 
hearing. — There  is  no  want  of  due 
process  of  law  in  a  judgment  of  the 
highest  court  of  a  state,  imposing  a  sub- 
stantial fine  in  quo  warranto  proceed- 
ings, conformably  to  the  local  practice, 
upon  a  foreign  corporation  found  to  have 
misused  its  license  to  do  business  in  the 
state,  although  there  was  no  statute  fix- 
ing a  maximum  penalt5^  no  rule  for 
measuring  damages,  and  no  hearing  on 
that  subject.  Standard  Oil  Co.  v.  Mis- 
souri. 224  U.  S.  270,  56  L.  Ed.  760,  32 
S.    Ct.   406. 

Entry  of  a  judgment  of  ouster  and  the 
imposition  of  a  substantial  fine  in  quo 
warranto    proceedings,     conformably      to 


1045 


453  RAILROADS.  Vol.  X. 

RAILROAD  COMMISSION. — See  ante,  Carriers,  p.  216;  Injunctions, 
p.  657 ;    post,  Railroads. 

RAILROAD  LAND   GRANTS.— See  ante,  Public  Lands,  p.   1012. 

RAILROAD  POOLS. — See  ante,  Monopolies  and  Corporate  Trusts,  p. 
874. 

RAILROADS. 

V.  Property,   1047. 

B.  Right  of  Way  and  Other  Real  Interest.  lCM-7. 

9.  Grants  of  Public  Land  to  Aid  Railroads,   1047. 

VI.  Construction,  Equipment,  Maintenance  and  Operation,   1047. 

C.  Operation  of  Road.   1047. 

2.  Regulation,    1047. 

a.  Statutory   and   Municipal,   1047. 

(1)   In  General — Power  to   Regulate,   1047. 

(4)  Control   by   Commissioners,   1047. 
(a)   In   General,    1047. 

(c)    Injunction    Suit     in     Federal    Court   against    Com- 
missioners,  1047. 

(5)  Constitutionality   and   \^alidity  of   Regulations,    1047. 
(a)   In  General,  1047. 

(e)   Connection    Regulations,    1047. 

(g)   Compelling   Building   Tracks    to    Elevators,    1047. 

X.  Traffic  and  Other  Operating  Contracts,   1048. 
F.  Enforcement — Specilic   Performance.    1048. 

CROSS   REFERENCES. 

See  the  title  Railroads,  vol.  10,  p.  455,  and  references  there  given. 

As  to  impairment  of  obligations  of  contracts,  see  ante.  Impairment  oe  Obli- 
gation OF  Contracts,  p.  624.  As  to  due  process  of  law  in  condemnation  pro- 
ceedings, see  ante.  Due  Process  of  Law^,  p.  475 ;  Eminent  Domain,  p.  537. 
As  to  jurisdiction  over  suits  by  and  against  railroads,  see  ante.  Courts,  p.  398. 
As  to  due  process  of  law  in  establishing  rates  and  the  enforcement  thereof,  see 
ante.  Constitutional  Law^,  p.  264;  Due  Process  oe  Lav;^,  p.  475.  As  to  tax- 
ation of  railroads  and  exemptions  therefrom,  see  post,  Taxation.  As  to 
regulation  of  commerce,  interstate  and  intrastate,  see  ante,  Interstate  and 
Foreign  Commerce,  p.  689.  As  to  regulation  of  rates  by  states,  see  ante.  Car- 
riers, p.  216.  As  to  requiring  railroad  to  deliver  to  cars  of  connecting  carrier, 
see  ante.  Carriers,  p.  216;  Constitutional  Law,  p.  264.  As  to  association 
of  railroad  company  with  commodity  carrier,  see  ante,  Interstate  and  For- 
eign Commerce,  p.  689. 

the  local  practice,  afford  sufficient  notice  its  license  to  do  business  in  the  state, 
and  opportunity  to  be  heard  to  satisfy  can  not  claim  to  have  been  denied  the 
the  due  process  of  law  clause  of  U.  S.  equal  protection  of  the  laws  because  cor- 
Const.,  fourteenth  amendment,  although  porations  prosecuted  in  the  inferior  state 
the  information  contains  only  general  al-  couits  for  identically  the  same  acts,  in 
legations  of  misuser,  with  only  a  prayer  violation  of  the  state  Antitrust  Act,  are 
for  ouster.  Standard  Oil  Co.  v.  Missouri,  entitled  to  trial  jury,  and,  if  convicted, 
224  U.  S.  270,  56  L.  Ed.  760,  32  S.  Ct.  400,  can  be  ousted  of  their  franchise  and  sub- 
See,  also,  ante,  DUE  PROCESS  OF  jected  to  a  fine  not  to  exceed  $100  per 
LAW,  p.  475;  FOREIGN  CORPORA-  day  during  the  time  the  combination 
TIONS,  p.  584.  continued  in  effect.  Standard  Oil  Co.  v. 
Equal  protection  of  the  laws. — A  for-  Missouri.  224  U.  S.  270,  56  L.  Ed.  760,  32 
eign  corporation  ousted  and  fined  $50,000  S.  Ct.  406.  See  ante,  CONSTITU- 
in  civil  quo  warranto  proceedings  in  the  TIONAL  LAW,  p.  264;  FOREIGN 
highest   court   of   a   state,    for   misuser   of  CORPORATIONS,    p.    584. 

1046 


Vol.  X. 


RAILROADS. 


473-475 


V.  Property. 
B.  Right  of  Way  and  Other  Real  Interest — 9.  Grants  of  Pubuc  Land 
TO  Aid  Railroads. — See  cross  reference,  vol.   10,  p.  471. 

VI.  Construction,  Equipment,  Maintenance  and  Operation. 
0.  Operation  of  Road — 2.  Regulation — a.  Statutory  and  Municipal — (1) 
In  General — Pozcer  to  Regulate. — The  elementary  proposition  that  railroads, 
from  the  public  nature  of  the  business  by  them  carried  on,  and  the  interest 
which  the  public  have  in  their  operation,  are  subject,  as  to  their  state  business, 
to  state  regulation,  which  may  be  exerted  either  directly,  by  the  legislative  au- 
thority, or  by  administrative  bodies  endowed  with  power  to  that  end,  is  not  and 
could  not  be  successfully  questioned,  in  view  of  the  long  line  of  authorities 
sustaining  that  doctrine.^ ^^ 

(4)  Control  by  Commissioners — (a)    In   General. — See  note  71. 

(c)  Injunction  Suit  in  Federal  Court  against  Commissioners. — See  ante.  In- 
junctions, p.  657. 

(5)  Constitutionality  and  J^alidity  of  Regulations — (a)  In  General. — See 
note  74. 

(e)  Connection  Regulations. — As  requiring  delivery  and  receipt  of  car  be- 
tween connecting  carriers,  see  ante,  Carriers,  p.  216. 

(g)  Compelling  Building  Track  to  Elez'ators. — The  compulsory  construction 
and  maintenance  by  a  railway  company,  at  its  own  expense,  and  without  a  pre- 
liminary hearing,  under  penalty  of  a  heavy  fine  for  refusal,  of  the  side  tracks 
or  switches  necessary  to  reach  grain  elevators  which  may  be  erected  adjacent 


473-61a.  Statutory  and  municipal  regu- 
lation.— Missouri  Pac.  R.  Co.  :•.  Railroad 
Comm'rs,  216  U.  S.  262,  54  L.  Ed.  472, 
30  S.  Ct.  330;  Atlantic,  etc.,  R.  Co.  z: 
North  Carolina  Corp.  Comm.,  206  U.  S. 
1,    51    L.    Ed.    933.    27    S.    Ct.    585. 

474-71.  Control  by  commissioners. — 
Nothing  in  the  federal  constitution  or 
statutes  prevents  a  state  from  creating  a 
board  of  railroad  commissioners  and 
prescribing  their  powers,  or  from  regu- 
lating or  forbidding  the  consolidation  of 
railroad  corporations,  or  from  prescrib- 
ing the  routes  of  railroads,  and  providing 
that  parallel  and.  competing  lines  shall 
so  remain.  Judgment  (1906),  41  So.  259, 
89  Miss.  724.  affirmed.  Mobile,  etc.,  R. 
Co.  V.  Mississippi,  210  U.  S.  187.  52  L.  Ed. 
1016,  28  S.  Ct.  650. 

Power  to  make  a  general  schedule  of 
maximum  rates  for  the  transportation  of 
all  commodities,  upon  all  railroads,  to 
and  from  all  points  within  the  state, 
upon  a  general  and  comprehensive  com- 
plaint that  rates  are  too  high,  or  upon 
like  information  of  the  commission  it- 
self, is  not  conferred  upon  the  Kentucky 
railroad  commission  by  Ky.  Act  of  Alarch 
10,  1900,  authorizing  such  commission, 
upon  complaint  that  the  rates  of  any 
railway  company  are  extortionate,  or 
upon  its  own  information  to  that  efifect, 
to  fix  a  reasonable  rate  if,  after  hearing, 
it  finds  the  rates  to  be  extortionate.  Siler 
V.  Louisville,  etc..  R.  Co.,  213  U.  S.  175. 
53    L.    Ed.    753.    29    S.    Ct.    451. 

475-74.  Constitutionality. — See  ante, 
IMPAIRMENT  OF  OBLIGATION  OF 
CONTRACTS,    p.    624. 

1041 


Denial    of    due    process     of     law. — The 

duty  of  a  railway  company  under  its 
charter  to  furnish  passenger  service  is 
not  so  discharged  by  carrying  them  on  a 
mixed  train,  as  to  cause  an  order  of  the 
Kansas  railroad  commission,  compelling 
passenger  train  service  at  a  pecuniary 
loss,  to  be  so  arbitrary  and  unreason- 
able as  to  take  property  without  due 
process  of  law,  though  Laws  Kan.  1907, 
c.  274,  as  amended  by  Laws  1909,  c.  190, 
gives  the  public  the  right  to  travel  in 
the  caboose  of  freight  trains,  since  it 
recognizes  that  persons  availing  them- 
selves of  such  right  are  not  entitled  to 
ordinary  passenger  facilities,  or  to  the 
legal  protection  surrounding  passenger 
traffic.  Judgment.  State  v.  Missouri  Pac. 
Ry.  Co.  (1907).  92  P.  606.  76  Kan.  4b7,  af- 
firmed. Missouri  Pac.  R.  Co.  v.  Railroad 
Comm'rs,  216  U.  S.  262,  54  L.  Ed.  472,  30 
S.  Ct.  330.  See  ante.  DUE  PROCESS 
OF  LAW,  p.  475. 

An  order  of  a  state  railroad  commis- 
sion directing  a  railroad  company  to  dis- 
charge its  corporate  duty  bj''  operating 
a  passenger  train  over  a  branch  line  be- 
tween its  terminus  within  the  state  and 
the  state  line  is  not  so  arbitrary  or  un- 
reasonable as  to  deprive  the  company  of 
its  property  without  due  process  of  law, 
because  there  are  no  facilities  at  the  state 
line,  and  no  occasion  for  the  termination 
of  the  transit  at  that  point.  Tavlor  r.  Mis- 
souri Pac.  R.  Co.,  92  P.  606,  76  Kan.  467, 
affirmed  in  Missouri  Pac.  R.  Co.  v.  Rail- 
road Comm'rs.  216  U.  S.  262,  54  L.  Ed. 
472,   30  S.   Ct.   330. 


477-525 


RAILROADS. 


Vol.  X. 


to  the  right  of  way,  cannot  be  justified  as  an  exercise  of  the  police  power,  but 
such  statute  takes  the  property  of  the  railway  company  without  due  process  of 
law,  even  if  construed  as  operating  only  when  the  demand  for  such  facilities 
is  reasonable.^2^ 

X.  Traffic  and  Other  Operating  Contracts. 

F.  Enforcement — Specific   Performance. — See   note  90. 


477-82a.  Compelling  building  track  to 
elevators. — Missouri  Pac.  R.  Co.  z>.  Ne- 
braska, 217  U.  S.  196,  54  L.  Ed.  727,  30 
S.    Ct.   461. 

On  the  face  of  it,  the  statute  Sess. 
Laws  Neb.  1905,  c.  105,  §§  1,  6  seems  to 
require  the  railroad  to  pay  for  side  tracks, 
whether  reasonable  or  not,  or,  if  another 
form  of  expression  be  preferred,  to  de- 
clare that  a  demand  for  a  side  track  to 
an  elevator  anywhere  is  reasonable,  and 
that  the  railroads  must  pay.  Clearly,  no 
such  obligation  is  incident  to  their  public 
duty,  and  to  impose  it  goes  beyond  the 
limit  of  the  police  power.  Missouri  Pac. 
R.  Co.  V.  Nebraska,  217  U.  S.  196,  54  L. 
Ed.    727,   30   S.   Ct.   461. 

There  is  no  provision  in  the  statute 
Sess.  Laws  Neb.  1905,  c.  105,  §§  1,  6  for 
compensation  to  the  railroad  for  its  out- 
lay in  building  and  maintaining  the  side 
tracks  required.  In  the  present  cases, 
the  initial  cost  is  said  to  be  $450  in  one 
and  $1,732  in  the  other,  and  to  require 
the  company  to  incur  this  expense  un- 
questionably does  take  its  property,  what- 
ever may  be  the  speculations  as  to  the 
ultimate  return  for  the  outlay.  Wood- 
ward 7'.  Central  Vermont  Ry.  Co..  180 
Mass.  599,  602,  603,  62  N.  E.  1051.  More- 
over, a  part  of  the  company's  roadbed  is 
appropriated  mainly  to  a  special  use, 
even  if  it  be  supposed  that  the  side  track 
would  be  available  incidentally  for  other 
things  than  to  run  cars  to  and  from  the 
elevator.  It  is  true  that  railroads  can  be 
required  to  fulfill  the  purposes  for  which 
they  are  chartered  and  to  do  what  is 
reasonably  necessarj'  to  serve  the  pub- 
lic in  ihc  way  in  which  they  undertake 
to  serve  it.  without  compensation  for  the 
performance  of  some  part  of  their  du- 
ties that  does  not  pay.  Missouri  Pac.  R. 
Co.  V.  Railroad  Comm'rs,  216  U.  S.  262, 
54  L.  Ed.  473,  30  S.  Ct.  330.  It  also  is 
true  that  the  states  have  power  to  modify 
and  cut  down  property  rights  to  a  cer- 
tain limited  extent  without  compensa- 
tion, for  public  purposes,  as  a  necessary 
incident  of  government,  the  power  com- 
monly called  the  police  power.  But 
railroads,  after  all,  are  property  pro- 
tected by  the  constitution,  and  there  are 
constitutional  limits  to  what  can  be  re- 
quired of  their  owners  under  either  the 
police  power  or  any  other  ostensible 
justification  for  taking  such  property 
away.  Missouri  Pac.  R.  Co.  v.  Nebraska, 
217  U.  S.  196,  54  L.  Ed.  727,  30  S.  Ct.  461. 


525-90.  Construction  of  decree. — The 
equal  use  and  benefit  of  the  entire  ground 
owned  by  the  Wabash,  St.  Louis  &  Pa- 
cific Railway  Company,  and  used  by  it 
for  its  terminal  facilities  in  St.  Louis, 
and  not  merely  a  riglit  of  ^yay  over  its 
tracks  running  to  the  Union  station, 
were  granted  to  the  St.  Louis,  Kansas 
City  &  Colorado  Railroad  Company  by 
a  decree  awarding  to  the  latter  road  the 
equal  use,  on  certain  prescribed  terms, 
of  the  right  of  way  and  tracks,  side 
tracks,  switches,  turn-outs,  turntables, 
and  other  terminal  facilities  of  the  former 
road  at  and  between  the  north  line  of 
Forest  Park  and  Eighteenth  street  in 
the  city  of  St.  Louis.  Decree  (1907),  152 
F.  849,  81  C.  C.  A.  643,  modified.  St. 
Louis,  etc.,  R.  Co.  v.  Wabash  R.  Co.,  217 
U.   S.  247,  54  L.   Ed.  752,  30  S.  Ct.  510. 

The  right  of  the  St.  Louis,  Kansas 
City  &  Colorado  Railroad  Company  to 
use  terminal  facilities  in  connection  with 
industrial  establishments  now  existing 
near  the  right  of  way  of  the  Wabash,  St. 
Louis  &  Pacific  Railway  Company  is  in- 
cluded in  a  decree  by  which  the  former 
road  was  given  the  right,  upon  certain 
prescribed  terms,  which  contemplated 
modification  upon  change  in  conditions, 
to  use  the  right  of  way  and  tracks,  side 
tracks,  switches,  turn-outs,  turntables,  and 
other  terminal  facilities  of  the  latter  road 
at  and  between  the  north  line  of  Forest 
Park  and  Eighteenth  street  in  the  city 
of  St.  Louis.  St.  Louis,  etc.,  R.  Co.  ''. 
Wabash  R.  Co.,  217  U.*S.  247,  54  L.  Ed. 
7  52,    30    S.    Ct.    510. 

The  use  of  the  tracks  of  the  Union  Pa- 
cific Railroad  Company  as  accessory  only 
to  the  use  of  that  company's  bridge  over 
the  Missouri  river  at  Omaha,  and  not 
for  purposes  which,  like  local  switching, 
are  wholly  independent  of  any  use  of  the 
bridge,  was  what  was  authorized  by  a  de- 
cree based  upon  the  Bridge  Act  (Act 
July  25.  1866,  c.  246,  14  Stat.  244;  Act  Feb. 
24,  1871,  c.  67,  16  Stat.  430),  adjudging  to 
the  Mason  City  &  Fort  Dodge  Railroad 
Company  and  its  lessee  the  right  to  the 
equal  and  joint  use  of  the  main  and  pass- 
ing tracks  of  the  Union  Pacific  Railroad 
Company  from  their  eastern  terminus  at 
Council  Blufifs  to  a  connection  with  the 
Union  Stockyards  Railroad  and  the  other 
railroads  connecting  with  the  Union 
Pacific  Railroad  at  South  Omaha,  includ- 
ing the  bridge  across  the  Missouri  river 
at  that  point,  and  of  the  connections  with 


1048 


Vol.  X.  RBCBIVBR  GBXERAL.  534-535 

RAILWAY  MAIL   SERVICE.— See  ante,  Postal  Laws,  p.  996. 

RAILWAY  POSTAL  CLERKS.— See  ante,  Postal  Laws,  p.  996. 

RANK. — See  ante,  Army  and  Navy,  p.  150. 

RAPE. — See  the  title  Rape,  vol.  10,  p.  530,  and  references  there  given. 

RATE  OF  INTEREST.— See  ante.  Banks  axd  Baxkixg,  p.   184. 

REAL  ACTIONS.— See  the  title  Real  Actions,  vol.  10,  p.  533,  and  refer- 
ences there  given. 

REAL  ESTATE.— See  note  2. 

REAL  PROPERTY.— See  ante.  Banks  and  Banking,  p.  184;  Husband 
and  Wife,  p.  620;  Judgments  and  Decrees,  p.  807;  Limitation  of  Actions 
and  Adverse  Possession,  p.  828;    ^vIinks  and  ^Iinerals,  p.  865. 

REASONABLE  CARE  AND  PRUDENCE.— See  ante,  Negligence,  p.  920. 

REASONABLE   CERTAINTY.— See   post.   Reasonable  Doubt. 

REASONABLE   COMPENSATION.— See  ante.  Eminent  Domain,  p.  537. 

REASONABLE  DOUBT. 

CROSS   REFERENCES. 

See  the  title  Reasonable  Doubt,  vol.  10,  p.  534,  and  references  there  given. 

Term  Defined  and  Explained. — See  note  8. 

Proof  Beyond  Reasonable  Doubt  in   Civil   Cases. — See  note   13. 
Proof  Beyond  Reasonable  Doubt  in  Criminal  Cases. — See  note  14. 
Instructions  as  to  Reasonable  Doubt. — See  note  15. 

REASON,  RULE  OF.— See  ante,  AIonopolies  and  Corporate  Trusts,  p. 
874. 

REBATES. — See  ante,  Interstate  and  Foreign  Commerce,  p.  689;  post, 
Revenl'E  Laws. 

RECAPTION.— See  the  title  Recaption,  vol.  10,  p.  536,  and  references 
there  given. 

RECEIPTS.— See  the  title  Receipts,  vol.  10,  p.  536,  and  references  there 
given. 

RECEIVER  GENERAL,— See  ante.  Banks  and  Banking,  p.   184. 

the    Union    Stockyards    tracks    and    with  giving  consideration  to  all  the  testimony, 

the  tracks  of  all  other  railway  companies  and    one   which    he    believes   would   cause 

connecting  at  or  near  South   Omaha  with  a   reasonable    man   in    any   matter   of   like 

the  tracks  of  the  Union   Pacific   Railroad  importance  to  hesitate  to  act,   denies  the 

Company    to    the    same    extent    and    upon  notion   that   any   mere   possibility  is   suffi- 

the  same  terms  as  defined  in  certain  ex-  cient  ground  for  such  a  doubt,  "and  adds 

isting   contracts    between    the    Union    Pa-  that,   in  the   performance   of  jury  service, 

cific    Railroad    Company    and    other    rail-  jurors  should  decide  controversies  as  thc^^ 

ways;    the   common    object    of   both    stat-  would    any    important    question    in    their 

utes    being    the    more    perfect    connection  own  aflfairs,  is  good  as  against  a  general 

of  the    roads    running    to    the    bridge  on  exception.     Holt  v.  United  States,  218  U. 

either   side   of  the   river.     Union   Pac.    R.  S.  245,  54  L.  Ed.  1021.  31  S.  Ct.  2.  affirm- 

Co.  V.  Mason,  etc..  R.  Co.,  222  U.  S.  237.  ing  judgment   United   States  v.   Holt    (C. 

56  L.  Ed.  180,  32   S.   Ct.   86,  reversing  de-  C.  1909)   1G8  F.  141. 

cree  (1908)  165  F.  844,  91  C.  C.  A.  530.  535-13.  Suit  for  injunction  against  judg- 

534-2.    Judgment   liens.— As   to   real   e--  ment.— See     ante,     JUDGMENTS     AND 

tate     wuhm     the     meaning     of    a     statute  DECREES    p    807 

providing  that  judgments  shall  be  a  lien  ___  ,.•,->'             vi      j     u^ 

on    real    estate,    see    ante,    JUDGMENTS  fS-U.   Reasonable   doubt  as   to   san^^^^^^ 

AND  DECREES    p    807  — ^^^   2,r\\.e.   DLE   PROCESS   OF  LA\\  , 


534-8.   Doubt   must  be   reasonable. — An 


p.   475;   INSANITY,  p.   669:   PRESUMP- 


instruTdon  as  to  rea^orable  doubt    which^  ^lONS    AND    BURDEN    OF    PROOF, 

after    defining    such    doubt    as    an    actual  P-  •  _ 

doubt  which  a  juror  is  conscious  of  after  535-15.     Instructions— In     general.— See 

reviewing    in    his    mind    the    entire    case,  ante,  "Term  Defined  and  Explamed." 

1049 


542-546  RBCEIVBRS.  Vol.  X. 


RECEIVERS. 

I.  Definition,  1050. 
II.  Nature  of  Office,   1050. 

III.  Appointment,   Qualification  and  Tenure,    1050. 

A.  Grounds  of  Appointment,   1050. 

2.  In  Creditors'   Suits,  Winding  Up  of  Corporations,  etc.,   1050. 

B.  Application  and  Hearing,   1050. 

2.  Exhaustion  of  Remedy  at  Law,  1050. 

IV.  Receiver's  Title  and  Right  of  Possession,   1050. 

B.  Nature  of   Receiver's  Title  and   Possession,    1050. 
D.  Protection  of  Receiver's  Possession,  1051. 

7.  Conflict  of  Concurrent  Jurisdictions,   1051. 
a.  General  Rule,  1051. 

V.  Care  and  Management  of  Property;    Powers,  Duties  and  Liabilities 
of  Receivers,  1051. 

B.  Care  and  Management  of  Property,    1051. 

3.  Liability  for  Expense  of  Care  and  Management,   1051. 

VII.  Presentation,  Allowance  and  Payment  of  Claims,  1052. 

A.  Claims  Allowable  against  Receivers,   1052. 
2.  Costs,  1052. 

CROSS   REFERENCES. 

See  the  title  Receivers,  vol.  10,  p.  538,  and  references  there  given. 
In  addition,  see  ante.  Appeal  and  Error,  p.  34;   Courts,  p.  398;   Interstate 
AND  Foreign  Commerce,  p.  689;  Monopolies  and  Corporate  Trusts,  p.  874. 
As  to  intervention  in  receivership,  see  ante,  Parties,  p.  932. 

I.  Definition. 

See  note  1. 

II.  Nature  of  Office. 

See  note  2. 

III.  Appointment,   Qualification  and  Tenure. 

A.  Grounds  of  Appointment— 2.  In  Creditors'  Suits,  Winding  Up  of 
Corporations,  etc. — See  ante.  Corporations,  p.  381. 

B.  Application  and  Hearing — 2.  Exhaustion  of  Remedy  at  Law. — See 
note  12. 

IV.   Receiver's  Title   and  Right  of  Possession. 

B.  Nature  of  Receiver's  Title  and  Possession.— See  note  28. 

542-1.  Receiver  defined. — Atlantic  Trust  complainants  were  not  judgment  credit- 
Co.  V.  Chapman,  208  U.  S.  360,  52  L.  Ed.  ors  who  had  issued  an  execution  which 
528,  28  S.  Ct.  406.  was   returned   unsatisfied,    in   whole   or   in 

542-2.  Authority  derived  from  the  court.  part,  amounts  to  a  waiver  of  that  defense. 

—Atlantic  Trust   Co.   7-.   Chapman,   208   U.  In    re    Metropolitan    R.    Receivership,    208 

S.  .360,  52  L.  Ed.  528,  28  S.  Ct.  406.  U.   S.  90,   52   L.   Ed.  40,3,  28   S.   Ct.  219. 

544-12.      Exhausting     remedy    at     law;  546-28.      Nature    of    receiver's    title   and 

waiver — Receivers.— The     consent    of    de-  possession.— Atlantic   Trust   Co.   v.   Chap- 

fendant   to   the   appointment   of   receivers,  man,    208  U.    S.  360,    52  L.    Ed.  528,  28    S. 

without    setting   up    the    defense    that    the  Ct.  406. 

1050 


Vol.  X. 


RBCBIVBRS. 


549-552 


D.  Protection  of  Receiver's  Possession — 7.  Conflict  of  Concurrent 
Jurisdictions — a.  General  Rule. — See  note  40. 

Jurisdiction  Not  Lost  because  of  Appeal  with  Supersedeas. — The  ju- 
risdiction of  a  state  court  over  the  res,  acquired  by  the  appointment  and  qual- 
ification of  a  receiver  of  a  foreign  corporation,  is  not  lost,  so  as  to  permit  in- 
terference by  a  federal  court,  because  of  an  appeal  with  supersedeas  from  the 
order  appointing  the  receiver,  where  the  state  courts  hold  that  the  effect  of  the 
appeal  and  supersedeas  bond  is  merely  to  suspend  the  order  appointing  the  re- 
ceiver pending  the  determination  of  the  appeal.  Nor  will  the  possible  danger 
of  prosecutions  and  interference  pending  such  an  appeal  justify  a  federal  court 
in  interfering  with  the  state  court's  custody  of  the  res.^^'^ 

V.  Care  and  Management  of  Property;  Powers,  Duties  and  Liabilities 

of  Receivers. 

B.  Care  and  Management  of  Property — 3.  Liability  for  Expense  of 
Care  and  Management. — The  general  rule  is  that  the  expenses  of  caring  for 
and  managing  the  property  are  a  charge  upon  the  property  or  fund  under  the 
control  of  the  court."*^'' 

Plaintiff  Obtaining  Receivership  Not  Liable. — And  there  is  generally 
no  personal  liability  upon  the  plaintiff"  who  invoked  the  jurisdiction  of  the  court 
for  the  purpose  of  obtaining  a  receivership.^*''  The  cases,  in  which  the  party 
bringing  suit,  in  which  a  receiver  has  been  appointed,  has  been  held  personally 
liable  for  such  expenses,  are  under  peculiar  circumstances  and  such  as  to  make 
it  equitable  that  that  should  be  done.^^'' 


519-40.  Conflict  between  state  and  fed- 
eral authorities. — Jurisdiction  of  a  state 
court  of  the  property  of  a  foreign  corpo- 
ration attaches  so  as  to_prevent  interfer- 
ence on  the  part  of  a  federal  court  when 
a  receiver' has  been  appointed  and  quali- 
fied, although  he  has  not  taken  actual 
possession  of  the  property.  Judgment  (C. 
C.  A.  1907),  State  of  Texas  v.  Palmer.  158 
F.  705,  modified.  Palmer  v.  Texas,  212  U. 
S.  118,  53  L.  Ed.  435,  29  S.  Ct.  230. 

"We  think  the  law  of  this  court  is  well 
established  to  be  that  jurisdiction  over 
the  property  was  acquired  by  the  state 
courts  when  the  receiver  was  appointed, 
the  judicial  process  served,  and  the  re- 
ceiver duly  qualified,  although  the  state 
receiver  had  not  taken  actual  possession 
of  the  property.  This  principle  was  rec- 
ognized in  Farmers'  Loan,  etc..  Co.  v. 
Lake  St.  Kiev.  R.  Co.,  177  U.  S.  51,  44  L. 
Ed.  667,  20  S.  Ct.  564."  Palmer  v.  Texas, 
212  U.   S.   118,  53  L.  Ed.  435,  29   S.   Ct.  230. 

549-42a.  Not  lost  by  appeal  with  su- 
persedeas.— Judgment  (C.  C.  A.  1907), 
State  of  Texas  v.  Palmer,  158  F.  705,  mod- 
ified. Palmer  v.  Texas,  212  U.  S.  118,  53 
L.   Ed.   435,   29   S.   Ct.  230. 

Shields  v.  Coleman,  distinguished. — "It 
is  further  contended  that  this  case  is  con- 
trolled by  the  principles  laid  down  in 
Shields  V.  Coleman.  157  U.  S.  168.  39  L. 
Ed.  660,  15  S.  Ct.  570.  But  in  that  case, 
before  there  was  an  attempt  to  appoint 
a  receiver  and  take  possession  of^  the 
property  by  the  second  proceedings,  the 
first    receiver    had    been     discharged    and 


the  property  restored  to  the  owner,  who 
had  given  a  bond  for  the  forthcoming  of 
the  property  to  answer  the  judgment.  In 
this  case  the  receivership  had  merely 
been  suspended  when  the  application  v/as 
made  to  the  federal  court,  and  the  re- 
ceiver's bond  was  conditioned  to  account 
for  the  rental  value  of  the  property  pend- 
ing the  appeal."  Palmer  v.  Texas,  212  U. 
S.   118,  53   L.   Ed.  435,  29   S.   Ct.  230. 

552-58a.  General  rule.— Atlantic  Trust 
Co.  V.  Chapman,  208  U.  S.  300,  52  L.  Ed. 
528.  28   S.   Ct.  406. 

552-58b.  Plaintiff  not  liable.— Atlantic 
Trust  Co.  T'.  Chapman,  208  U.  S.  360,  52 
L.   Ed.   528,   28   S.   Ct.  406. 

The  trustee  in  a  mortgage  of  the  prop- 
erty of  a  canal  and  irrigation  company, 
who  brings  a  suit  for  foreclosure  and 
sale,  and  obtains  the  appointment  of  a  re- 
ceiver to  take  charge  of  and  manage  the 
property  pendente  lite,  does  not,  by  rea- 
son of  such  action,  become  personally 
liable  for  money  borrowed,  expenses  in- 
curred, and  certificates  issued  by  the  re- 
ceiver under  orders  of  the  court,  in  keep- 
ing the  corporation  on  its  feet  as  a  going 
concern,  which  the  proceeds  of  the  sale 
proved  insufficient  to  pay.  Judgment 
(1906),  145  F.  820.  76  C.  C.  A.  396,  re- 
versed. Atlantic  Trust  Co.  7'.  Chapman, 
208  U.   S.  360.  52  L.   Ed.  528,  28   S.   Ct.  406. 

552-58C.  Under  peculiar  circurpstances. 
—Atlantic  Trust  Co.  v.  Chapman,  208  U. 
S.  360,  52  L.  Ed.  528,  28  S.  Ct.  406. 

'Tt  is  true  that  cases  are  cited  in  which 
the   party  bringing   a   suit   in   which   a  re- 


1051 


565  RECORDING  ACTS.  Vol.  X. 

VII.   Presentation,   Allowance  and  Payment  of  Claims. 

A.  Claims  Allowable  against  Receivers — 2.  Costs. — Costs  of  receivership 
should  not  be  assessed  against  complainant  on  reversal  of  order  appointing  the 
receiver,  where  the  receivership  has  gone  on  pending  the  appeal,  but  such  costs 
should  be  paid  out  of  the  fund  realized  in  court. ^-^^ 

RECEIVING  STOLEN  GOODS.— See  the  title  Receiving  Stolen  Goods, 
vol.  10,  p.  586,  and  references  there  given. 

RECIPROCITY  TREATIES.— See  post,  Revenue  Laws;  Treaties. 

RECITALS. — See  ante,  Municipal,  County,  State  and  Federal  Secur- 
ities, p.  906. 

RECLAMATION.— See  ante,   Public  Lands,  p.   1012. 

RECOGNIZANCE.— See  ante,   Bail  and  Recognizance,  p.    166. 

RECORDATION.— See  post,  Recording  Acts. 


RECORDING  ACTS. 

II.  Power  to  Enact,   1052. 

III.  Construction,   1053. 

IV.  What  Instruments  Are  within  the  Acts,   1053. 

B.  Instruments  Relating  to  Realty,   1053. 

5.  Transfer  of  a  Lease  of  Real  Property,  1053. 

VII.  Prerequisites  to  Recording,  1053. 

A.  Execution  and  Acknowledgment  or  Proof,  1053. 
XI.  Effect  of  Failure  to  Record,  1053. 

B.  As  Affecting  Third  Persons,  1053. 

2.  Purchasers  and  Mortgagees,   1053. 

a.  Of  Real  Property,   1053. 
(1)  Without  Notice,  1053. 

(b)  Failure   to   Record   Notice   of   Pendencv   of    Suit, 

1053. 

(c)  Who  Are  Purchasers,  1053. 

3.  Creditors,   1053. 

CROSS  REFERENCES. 

See  the  title  Recording  Acts,  vol.  10,  p.  587. 

In  addition,  see  ante.  Acknowledgments,  p.  7;  Bankruptcy,  p.  168;  Docu- 
mentary Evidence,  p.  469. 

II.  Power  to  Enact. 

Retail  dealers  are  not  denied  due  process  of  law,  or  the  equal  protection  of  the 
laws,  by  the  provisions  of  a  statute  avoiding,  as  against  creditors,  sales  by  such 
dealers  of  their  entire  stock  at  a  single  transaction,  and  not  in  the  regular  course 
of  business,  unless  notice  of  intention  to  make  such  sale  be  recorded  seven  days 

ceiver   is    appointed   has    been   held    liable  the     court,    that    that    should    be     done." 

for  expenses  incurred  by  the   receiver  in  Atlantic  Trust  Co.  v.  Chapman,  208  U.  S. 

excess   of   the   proceeds   arising   from   the  360,  52  L.  Ed.  528,  28  S.  Ct.  406. 

sale  of  the  property.     But  in  most,  if  not  565-13a.      Costs.— Judgment    (C.    C.    A. 

in   all,   of  those   cases,   the   circumstances  1907),    State    of  Texas   v.   Palmer,    158    F. 

were  peculiar  and  were   such   as  to  make  705,  modified.     Palmer  v.  Texas,  212  U.  S. 

it   right   and   equitable,    in   the   opinion   of  118,  53  L,.  Ed.  435,  29  S.  Ct.  230. 

1052 


Vol.  X. 


RECORDIXG  ACTS. 


588-597 


before  its  consummation,  but  such  statute  is  a  valid  exercise  of  the  police  power 
of  the  state. -^ 

ni.  Construction. 
See  note  3. 

rV.  What  Instruments  Are  within  the  Acts. 

B.  Instruments  Relating  to  Realty — 5.  Traxsfer  of  a  Lease  of  Real 
Property. — A  transfer  of  a  lease  of  real  property  which,  among  other  obliga- 
tions imposed  on  the  lessee,  stipulates  for  the  immobilization  of  machinery  to  be 
installed  by  the  tenant,  is  a  contract  concerning  real  rights  to  immovable  property, 
within  the  purview  of  a  statute  which  provides  that  "the  titles  of  ownership  or  of 
other  real  rights  relating  to  immovables  which  are  not  properly  inscribed  or  an- 
notated in  the  registry  of  property,    shall  not  be  prejudicial  to    third  parties. "^^ 


A. 


VII.   Prerequisites  to  Recording. 
Execution   and  Acknowledgment   or  Proof. — See  note   15. 


XI.  Effect  of  Failure  to  Record. 

B.  As  Affecting  Third  Persons — 2.  Purchasers  axd  ^Iortgagees — ■ 
a.  Of  Real  Property — (1)  Without  Xoticc — (b)  Failure  to  Record  Notice  of 
Pendency  of  Suit. — See  note  32. 

(  c)    Who  Are  Purchasers. — See  note  oZ. 

3.   Creditors. — See  note  43. 


588-2a.  Act  held  constitutional.— So 
held  as  to  Conn.  Gen.  Laws,  §§  486S, 
4869,  Lemieux  v.  Young,  211  U.  S.  489, 
53  L.  Ed.  295,  29  S.  Ct.  174.  See  ante, 
COXSTITUTIOXAL  LAW,  p.  264; 
DUE  PROCESS  OF  LAW,  p.  475;  PO- 
LICE POWER,  p.  955. 

588-3.  The  exception  of  the  province 
of  Benguet  from  the  operation  of  the 
Philippine  Commission's  Act  of  1903, 
No.  926,  relating  to  the  registration  of 
land  titles,  does  not  apply  to  one  who 
claims  present  ownership  of  land  in  that 
province;  but  he  is  entitled  to  registra- 
tion, if  his  claim  of  ownership  can  be 
maintained,  under  the  Commission's  Act 
of  1902,  No.  406,  establishing  a  court  for 
registration  purposes,  with  jurisdiction 
"throughout  the  Philippine  archipelago." 
and  authorizing,  in  general  terms,  appli- 
cations to  be  made  by  persons  claiming 
to  own  the  legal  estate  in  fee  simple. 
Carino  v.  Insular  Government,  212  U. 
S.    449.    53    L.    Ed.    594,    29    S.    Ct.    334. 

589-8a.  Transfer  of  a  lease  of  real 
property. — Civil  Code  of  Porto  Rico, 
§  613.  Valdes  v.  Central  Altagracia,  225 
U.    S.   58,   56   L.   Ed.   980.   32   S.   Ct.   664. 

590-15.  A  conveyance  of  a  mining  claim 
in  Alaska  is  not  entitled  to  registration 
under  the  Act  of  June  6,  1900.  title  1. 
§  15,  title  3,  §§  82.  95,  where  it  has  but 
one  witness,  and  the  only  acknowledg- 
ment was  taken  before  an  alteration, 
made  by  consent  of  the  parties.  Waskev 
V.  Chambers,  224  U.  S.  564.  56  L.  Ed. 
885.    32    S.    Ct.    597. 

594-32.  Under  the  local  statutory  law 
of  Porto  Rico. — Knovlcdge   of  the  pend- 


ency of  a  suit  to  subject  real  property 
registered  in  the  name  of  an  alleged 
fraudulent  grantee  to  the  payment  of  a 
judgment  against  the  grantor,  and  of  the 
right  to  apply  to  the  court  for  the  statu- 
tory cautionary  notice,  does  not  deprive 
a  purchaser  having  such  knowledge  of 
the  attitude  of  an  innocent  third  party, 
and  subject  the  property  in  his  hands  to 
a  responsibility  for  the  result  of  the  suit 
to  the  extent  which  would  have  been  the 
case  had  such  notice  been  demanded  and 
recorded.  Todd  z\  Romeu,  217  U.  S. 
150,    54   L.    Ed.   705,    30    S.    Ct.    474. 

595-33.  A  lessee  in  possession  of  a 
mining  claim  in  Alaska  under  an  agree- 
ment to  work  the  same  continuously, 
and  pay  over  to  the  lessor  a  percentage 
of  the  minerals  extracted,  is  a  purchaser 
for  a  valuable  consideration,  within  the 
meaning  of  the  Act  of  June  6.  1900  (31 
Stat,  at  L.  321,  505,  chap.  786),  title  3, 
§  98,  providing  that  every  unrecorded 
conveyance  of  real  property  shall  be  void 
against  anj'  subsequent  innocent  pu.r- 
chaser,  in  good  faith  and  for  a  valuable 
consideration,  of  the  same  real  property 
or  any  portion  thereof,  whose  convey- 
ance shall  be  first  duly  recorded. 
Waskey  v.  Chambers,  224  U.  S.  564,  56 
L.  Ed.  88.5,  32  S.  Ct.  597.  See.  also.  ante. 
MIXES  AXD  MIXERALS.  p.  865. 

597-43.  Unrecorded  mortgage  valid  as 
against  creditors  having  no  specific  lien 
— Statute  construed. — Subsequent  credit- 
ors without  notice  of  an  unrecorded 
chattel  mortgage,  who  have  not  secured 
any  specific  lien  upon  the  mortgaged 
property    by    execution,    attachment,     or 


1053 


598-623  REGULATE— REGULATION.  Vol.  X. 

RECORDS. 

III.  Judicial  Records,  1054. 
Ay2.  Form,  1054. 

B3/2.  Time  within  Which  ^Minute  Entries  ^for  Term  ]\Iust  Be  Completed, 
1054. 

CROSS  REFERENCES.  ' 
See  the  title  Records,  vol.  10,  p.  597,  and  references  there  given. 
In  addition,  see  post,  Res  Adjudicata. 

III.  Judicial  Records. 
Al.    Form. — Minute  entries  by  a  federal  circuit  court  clerk  in  a  record  rec- 
ognized by  the  court  as  its  minutes  are  valid  though  made  with  a  rubber  stamp.^^ 
B|.    Time  within  Which  Minute  Entries  for  Term  Must  Be  Completed. 

— Tlie  clerk  of  a   federal  circuit  court  has  until  the  end  of  term  in  which  to 
complete  the  minute  entries  for  the  term.*^^ 

RECOUPMENT. — See  post,   S^t-Off",   Recoupment  and  Counterclaim. 

REDELIVERY  BOND.— See  post.  Replevin. 

REFEREE. — See  ante,  Bankruptcy,  p.  168;  post,  Reference. 

REFERENCE. 

III.  When  Proper,  1054. 

B.  Reference  of   Pending  Actions  under  Rule  of   Court  by   Consent  of 
Parties,  1054. 
1.  In  General,  1054. 

CROSS  REFERENCES. 

See  the  title  Reference,  vol.   10,  p.  600.  and  references  there  given. 

III.  When  Proper. 
B.    Reference  of  Pending  Actions  under  Rule  of  Court  by  Consent  of 
Parties — 1.    In  General. — See  note  15. 

REFERENDUM.— See  ante,  Constitutional  Law,  p.  264. 
REGULATE— REGULATION.— See  note  3. 

otherwise,   are   not   comprehended   by   the  state    of   West    Virginia,    which    seeks    an 

term    "creditors,"    as    used    in    Ky.    Stat.  adjudication      of      the      amount     due    the 

1903,    §    496,   which    provides    that    no   un-  former  state  by  the  latter  as  the  equitable 

recorded  mortgage   shall  be  valid  against  proportion    of    the    public    debt     of      the 

a  purchaser_  for  a  valuable   consideration,  original   state   of  Virginia,   which   was  as- 

without  notice  thereof,  or  against  credit-  sumed   by   the   state   of  West  Virginia  at 

ors*.     Holt    V.  Crucible    Steel    Co.,  224    U.  the  time  of  its  creation  as  a  state.    Com- 

S.  2G2,   56   L.   Ed.   756,  32   S.   Ct.  414.     See  monwealth    v.    West    Virginia,    209    U.    S. 

ante,   CHATTEL   MORTGAGES,   p.   230.  514,  52   L.   Ed.  914.  28   S.  Ct.  614. 

598-5a.     Minute    entries    made     with     a  623-3.  Regulation  of  commerce.— In  the 

rubber   stamp. — Harlan   v.    McGourin.   218  constitutional    provision    Lonrernng    upon 

U.  S.  442,  54  L.  Ed.  1101,  31  S.  Ct.  44,  af-  congress  the  power  to  regulate  commerce 

firming  180  Fed.  Rep.  119.  *  *  "*     among  the  several  states,  "to  reg- 

598-6a.    Clerk  has  until  end  of  term  to  ulate,"  in  the  sense  intended,  is  to  foster, 

complete    entries. — Harlan    v.     McGourin,  protect,  control  and  restrain,  with   appro- 

218  U.  S.  442,  54  L.  Ed.  1101,  31  S.  Ct.  44,  priate    regard    for    the    welfare    of    those 

affirming  180  Fed.   Rep.  119.  who    are    immediately    concerned    and    of 

604-15.     Reference     in     suits      between  the   public   at   large.      Second    Employers' 

states    in   federal    court. — Reference    to    a  Liability  Cases,  223  U.  S.  1.  46.  56  L.  Ed. 

special    master    decreed    in    a    suit    besjun  327,    32'  S.    Ct.    169.      See    ante,    INTER- 

by  an  original  bill  in  equity,  filed  by  the  STATE  AND   FOREIGN   COMMERCE, 

commonwealth     of    Virginia    against    the  p.  689. 

1054 


Vol.  X.  RELIGIOUS  SOCIETIES.  635 

REHEARING. — See  the  title  Rehearinx,  vol.  10,  p.  624,  and  references 
there  given.  As  to  opening  judgment  to  let  in  defendant  served  only  by  pub- 
lication, see  ante.  Judgments  and  Decrees,  p.  807.  As  to  raising  federal  ques- 
tion in  motion  for  rehearing  in  lower  court,  see  ante,  Appeal  and  Error,  p.  34. 

RELATION. — See  references  under  Relation,  vol.  10,  p.  632. 


RELEASE. 

II.  Operation;     Construction,    1055. 

C.  Construction;   Matters  Included  in  Release,   1055. 

CROSS  REFERENCES. 

See  the  title  Release,  vol.  10,  p.  633,  and  references  there  given. 

II.  Operation;    Construction. 

C.  Construction;  Matters  Included  in  Release. — A\here  a  release  pro- 
vides that  it  shall  not  include  claims,  arising  under  a  contract,  over  which  the 
secretary  of  the  navy  has  no  jurisdiction,  it  will  be  construed  not  to  include  such 
claims;  although  the  release,  if  in  the  form  specified  in  the  contract,  would  have 
extinguished  all  claims  growing  out  of  such  contract.'^'' 

RELEVANCY.— See  ante.   Evidence,  p.   558. 

RELIEF  AGAINST  JUDGMENT.— See  ante.  Judgments  and  Decrees, 
p.  80/". 

RELIGIOUS  LIBERTY.— See  ante.  Civil  Rights,  p.  236;  Constitutional 
Law,  p.  264. 

RELIGIOUS  SOCIETIES. 

I.  Creation  and  Establishment,   1055. 

V.  Property  and  Funds,  1056. 
A.  Acquisition  and  Title,  1056. 

1.  Right   to   Acquire   and   Retain,    1056. 
E.  Conveyances — Condition    Subsequent,    1056. 

VIII.  Actions  by  or  Against,   1057. 

CROSS  REFERENCES. 

See  the  title  Religious  Societies,  vol.  10,  p.  638,  and  references  there  given. 
In  addition,  see  ante.  Courts,  p.  398. 

I.     Creation  and  Establishment. 
Nature  and  Status  of  the  Roman  Catholic  Church. — The  Roman  Cath- 
olic Cliurch  in  Porto  Rico  must  be  regarded  as  a  legal  personality,  with  capacity 

635-6a.      Matters     included — Claim      for  the   construction  of  the  vessel  under  the 

unliquidated    damages. — Cramp     &      Sons  contract,   provided   that   the    release   shall 

Ship,    etc.,    Bldg.     Co.    v.    United    States,  not    be    taken    to    include    claims    arising 

216  U.  8.  494,  54  L.  Ed.  587,  30  S.  Ct.  392.  under    the    contract     other      than      those 

Claims  for  unliquidated  damages  on  which  the  secretary  of  the  navj^  has  ju- 
account  of  extra  work  caused  by  the  fed-  risdiction  to  entertain,  although  the  re- 
eral  government  are  not  included  in  a  lease,  if  in  the  form  specified  in  the  con- 
release  given  to  the  United  States  by  tract,  would  have  extinguished  all  claims 
the  builders  of  a  battleship,  of  all  and  all  against  the  United  States  growing  out 
manner  of  debts,  dues,  sum  and  sums  of  of  such  contract.  Cramp  &  Sons  Ship, 
money,  accounts,  reckonings,  claims,  and  etc.,  Bldg.  Co.  v.  United  States,  216  U. 
demands  whatsoever,  in  law  or  in  equity,  S.  494,  54  L.  Ed.  587,  30  S.  Ct.  392.  See 
for   or   by    reason    of,    or    on    account    of,  post,    WORKING    CONTRACTS. 

1055 


639-641 


RELIGIOUS  SOCIETIES. 


Vol.  X. 


to  sue  and  to  take  and  hold  property,  in  view  of  the  law  and  history  of  the  Roman 
Empire,  of  Spain,  and  Porto  Rico  down  to  the  time  of  the  cession  to  the  United 
States,  and  of  the  recognition  accorded  to  it  as  an  ecclesiastical  body  by  the  treaty 
of  Paris  December  10,  1898,  art.  8,  and  by  the  law  of  nations. ^^ 

Formation  and  Regulation. — The  various  laws  of  Porto  Rico  relating  to 
the  formation  and  regulation  of  business  corporations  have  no  application  to  the 
Roman  Catholic  Church  of  Porto  Rico.^** 

V.    Property  and  Funds. 

A.  Acquisition  and  Title — 1.  Right  to  Acquire  and  Retain. — The  Ro- 
man Catholic  Church  in  the  Philippine  Islands  is  a  legal  personality,  with  capacity 
to  hold  property  acquired  by  gift.^^^  And  the  fact  that  such  property  was  ac- 
quired from   gifts  even  of  public  funds  does   not  effect  the  absoluteness  of  this 

E.  Conveyances — Condition  Subsequent. — A  condition  in  a  transfer  by 
the  American  board  of  commissioners  for  foreign  missions  to  the  Hawaiian  gov- 
ernment, that  definite  Christian  doctrines  should  be  taught — namely,  doctrines 
which  constitute  the  belief  of  the  Congregational  and  Presbyterian  churches  of 
the  United  States — is  not  satisfied  by  the  teaching  of  merely  some  form  of  gen- 
eral evangelical  Christianity.-^^ 


639-la.  Nature  and  status  of  the  Ro- 
man Catholic  Church. — Ponce  v.  Roman 
Catholic  Apostolic  Church,  210  U.  S.  296, 
52  L.  Ed.  1068,  28  S.  Ct.  737.  See  post, 
"Right  to  Acquire  and  Retain,"  V,  A,  1. 

639-lb.  Formation  and  regulation. — 
Ponce  V.  Roman  Catholic  Apostolic 
Church,  210  U.  S.  296,  52  L.  Ed.  1068,  28 
S.   Ct.  737. 

640-14a.  Right  of  Roman  Catholic 
Church  to  hold  property. — Santos  v. 
Holy  Catholic,  etc.,  Church,  212  U.  S. 
463,  53  L.  Ed.  599,  29  S.  Ct.  338;  Ponce 
V.  Roman  Catholic  Apostolic  Church,  210 
U.    S.    296,    52    L.    Ed.    1068,    28    S.    Ct.    737. 

640-14b.  Right  not  affected  by  fact 
property  acquired  from  gifts  of  public 
funds. — Santos  v.  Holy  Catholic,  etc., 
Church,  212  U.  S.  463,  53  L.  Ed.  599,  29 
S.  Ct.  338;  Ponce  v.  Roman  Catholic 
Apostolic  Church.  210  U.  S.  296,  52  L. 
Ed.    1068,    28    S.    Ct.    737. 

The  title  of  the  Roman  Catholic 
Church  in  Porto  Rico  to  temples  erected 
and  dedicated  to  religious  uses  is  not  af- 
fected by  the  fact  that  some  of  the  funds 
for  building  or  repairing  the  churches 
were  public  funds,  appropriated  for  that 
purpose  by  the  municipality  of  Ponce, 
where  such  appropriations  were  made 
without  reservation  or  restriction.  Mu- 
nicipality of  Ponce  v.  Roman  Catholic 
Apostolic  Church,  210  U.  S.  296,  52  L. 
Ed.   1068,   28   S.    Ct.   737. 

641-21a.  Condition  subsequent — Re- 
ligious instructions. — Lowrey  v.  Hawaii, 
215  U.  S.  554,  54  L.  Ed.  325,  30  S.  Ct. 
209. 

Religious  teaching  and  training  in  the 
doctrines  represented  by  the  mission  are 
required  to  satisfy  the  condition  on  which 


such  mission  was  transferred  by  the 
American  Board  of  Commissioners  for 
Foreign  Missions  to  the  Hawaiian  gov- 
ernment, viz,  that  the  government  should 
continue  the  same  as  an  institution  for 
the  cultivation  of  sound  literature  and 
solid  science,  and  should  teach  no  re- 
ligious tenet  or  doctrine  contrary  to 
those  theretofore  inculcated  by  the  mis- 
sion, as  set  forth  in  a  confession  of  faith, 
where  the  government  knew,  when  ac- 
cepting the  transfer  of  the  mission  to  its 
"fostering  care  and  patronage,"  that  the 
mission  was  founded  to  convert  the 
Hawaiians  to  Christianity,  and  to  educate 
young  men  to  be  christian  ministers,  and 
for  nearly  30  years  recognized  its  obli- 
gation under  the  agreement  to  afford 
religious  instruction  in  those  doctrines. 
Lowrey  v.  Hawaii,  215  U.  S.  554,  54  L. 
Ed.  325,  30   S.   Ct.  209. 

Right  to  enforce  condition  subsequent. 
— The  right  to  receive  a  reconveyance  of 
the  school,  or  of  the  stipulated  sum  in 
lieu  of  such  reconveyance,  in  case  of  the 
breach  of  the  condition  on  which  a 
Protestant  mission  was  transferred  by 
the  American  Board  of  Commissioners 
for  Foreign  Missions  to  the  Hawaiian 
government,  viz,  that  the  government 
should  continue  the  same  as  an  institu- 
tion for  the  cultivation  of  sound  litera- 
ture and  solid  science,  and  should  teach 
no  religious  tenet  or  doctrine  contrary 
to  those  theretofore  inculcated-  by  the 
mission,  as  set  forth  in  a  confession  of 
faith,  passed  under  a  deed  from  such 
board  to  certain  named  trustees,  which 
purports  to  convey,  for  the  purposes  of 
the  trust,  every  interest  in  the  property 
which  the  grantor  had,  reserving  to  the 
grantor    the    right    to    direct    any    change 


1056 


\'ol.  X.  ■  REMITTITUR.  641-649 

VIII.  Actions  by  or  Against. 

The  Roman  Catholic  Church  in  Porto  Rico  must  be  regarded  as  a  legal  person- 
ality, with  capacity  to  sue.-'*'' 


REMAINDERS,  REVERSIONS  AND  EXECUTORY  INTERESTS. 

I.  Remainders,   1057. 

D.  Classes  of  Remainders.  1057. 
1.  \"ested  Remainders,   1057. 

b.  Remainders    Construed    as    \'ested    Rather   than   Contingent, 

1057. 
(2)  Words  Importing  Time  of  Enjoyment  Rather  than  Con- 
tingency, 1057. 

c.  A^ested  Remainder  Subject  to  Divesting  Contingency,   1057. 

CROSS  REFERENCES. 

See  the  title  Remainders,  Reversioxs  and  Executory  Ixterests,  vol.  10, 
p.  642,  and  references  there  given. 

As  to  remainder  as  used  in  a  family  settlement,  see  ante,  DescKxt  axd  Distri- 
BUTiox,  p.  463. 

I.  Remainders. 

D.  Classes  of  Remainders — 1.  \'ested  Remaixders — b.  Remainders 
Construed  as  J'ested  Rather  than  Contingent — (2)  Words  Importing  Time  of 
Enjoyment  Rather  than  Contingency. — See  note  25. 

c.    rested  Remainder  Subject  to  Divesting  Contingency. — See  note  28. 

REMAND. — See  ante,  ^Iaxdate  axd  Proceedixgs  Thereox,  p.  848;  post. 
Removal  of  Causes. 

REMITTITUR.— See  the  title  Remittitur,  vol.  10,  p.  658,  and  references 
there  given. 

or  alteration  in  the  disposition  of  the  death,  leaving  descendants,  before  the  ex- 
income  and  proceeds  of  the  trust  estate,  piration  of  the  preceding  estates,  where 
or  to  remove  any  trustee,  or  fill  any  va-  the  testator,  after  making  separate  pro- 
cancy.  Lowrey  v.  Hawaii,  215  U.  S.  554,  visions  for  his  sons  and  daughters,  de- 
54    L.    Ed.    325,    30    S.    Ct.    209.  vised  the   homestead  to  his   wife   for   life, 

641-24a.     Capacity    to     sue. — Ponce      v.  with    remainder    over    to    his    daughters, 

Roman     Catholic    Apostolic    Church.    210  "being     single     and     unmarried,     and     to 

U.   S.  296,  52   L.   Ed.  1068.  28   S.  Ct.  737.  the    survivor    and    survivors    of    them    so 

648-2.5.     Words    directing    land    to    be  long  as   they  shall  be   and   remain   single 

conveyed  or  divided  at  expiration  of  par-  and   unmarried,''    and    directed    that   upon 

ticular     estate. — Johnson    v.    Washington  the    death    or    marriage    of    the    last    of 

Loan,   etc.,    Co.,   224   U.   S.   224,   56   L.    Ed.  them,    the    property    should    be    sold    and 

741,   32   S.   Ct.  421.  the    proceeds     distributed      '"among      my 

The    daughters    surviving    the    testator  daughters    living   at    my    death,    and   their 

took   at   his   death    a   vested   remainder   in  children    and    descendants    (per    stirpes)." 

fee    in    the    homestead,    to    take    effect    in  Johnson    v.    Washing-ton    Loan,    etc.,    Co., 

possession    upon    the    marriage    of    all    of  224  U.  S.  224,  56  L.  Ed.  741,  32  S.  Ct.  421. 

them,   or  the   death   of  the  last   unmarried  649-28.    Divesting  of  estate  not  favored. 

daughter,    which    remainder    was    not    de-  — Johnson  :■.  Washington  Loan,  etc.,  Co., 

feasible    as  to    any    one   of    them  by    her  224  U.  S.  224,  5G  L.  Ed.  741,  32  S.  Ct.  421. 

12  U   S   Enc— 67  1057 


666  REMOVAL  OF  CAUSES.  Vol.  X. 


REMOVAL  OF  CAUSES. 

I.  Definition,  Nature  and  General  Consideration,   1058. 
G.  Waiver  of  Right  to  Remove,  1058. 
H.  Estoppel  to  Contest  Removability,  1059. 

III.  Grounds  for  Removal,  1059. 

A.  Controversies  Arising  under  the  Constitution  or  Laws  of  the  United 

States,  1059. 

1.  General  Statement,  1059. 

4.  Suits  Involving  Corporations  Created  under  Laws  of  United  States, 

1059. 
10.  Transaction  upon  Which  Right  to  Recover  Is  Based  Prohibited  by 
Federal  Statutes,  1059. 

B.  Diversity  of  Citizenship,  1060. 

2.  Where  a  Corporation  Is  a  Party,  1060. 
4.  Where  a  State  Is  a  Party,  1060. 

9.  Waiver  of  Objection  to  Jurisdiction,  1060. 

C.  Separable  Controversies,  1060. 

1.  Statement  of  the  Rule,  1060. 

2.  How  Separability  Determined,  1060. 

E.  Jurisdictional  Prerequisites  Fundamental,   1061. 

VI.  Proceedings  for  Removal,  1061. 
B.  Time  for  Application,  1061. 

E.  Decision  of  State  and  Federal  Courts  as  to  Removability,  1062. 

F.  Order  of  Removal,  1062. 

VII.  Effect  of  Removal  Proceedings,  1062. 

B.  Divestiture  of  Jurisdiction  of  State  Court,  1062. 

D.  Where  Removal  Is  Not  Effected,  1062. 

E.  Jurisdiction  Acquired  by  Federal  Court,  1062. 

1.  In  General,  1062. 

VIII.  Remand  to  State  Court,  1062. 

H.  Second  Application  for  Removal  after  Remand,  1062. 

XI.  Waiver  of  Objection  to  Jurisdiction  of  Court  to  Which  Cause  Has 
Been  Removed,   1063. 

CROSS  REFERENCES. 

See  the  title  Removal  of  Causes,  vol.  10,  p.  663,  and  references  there  given. 
In  addition,  see  ante.  Appeal  and  Error,  p.  34;  Certiorari,  p.  228;  Courts, 
p.  398;  Mandamus,  p.  838;  post.  Summons  and  Process. 

I.  Definition,  Nature  and  General  Consideration. 
G.    Waiver  of  Right  to  Remove. — See  note  13. 

666-13.     Waiver    of   right   to    remove. —  by  the  federal  court,  where  the  plaintiff, 

The    restoration    of   the   jurisdiction   of   a  before   any  order  was  made   in  the   state 

state   court  after  one   of  the   original  de-  court,    or   the    record   filed   in   the   federal 

fendants   had   filed   its   petition   and   bond  court,  had  an   order  entered  in  the   state 

for    the    removal    of    a    separable    contro-  court,    dismissing    his    action    against    the 

versy   to   a   federal   circuit   court   was   ef-  removing    defendant    and    certain    others 

fected   by   action   and    conduct   equivalent  having  a  like  ground  of  removal,  the  or- 

to   a   formal   waiver   of   new   process   and  der  reciting  that,  in  consideration  of  such 

new   pleadings    or   any   formal    remainder  dismissal,    the    petition    for    removal    was 

1058 


Vol.  X. 


REMOVAL  OP  CAUSES. 


667-676 


H.  Estoppel  to  Contest  Removability. — See  note  15.  Where  a  removal 
is  upon  the  appHcation  of  his  opponent,  a  party  may,  by  his  conduct  thereafter, 
be  estopped  from  objecting  to  the  jurisdiction  of  the  court  to  which  the  cause  is 
removed.^  5^ 

ni.  Grounds  for  Removal. 

A.  Controversies  Arising  under  the  Constitution  or  Laws  of  the 
United  States — 1.  General  Statement. — A  suit  arises  under  the  constitu- 
tion and  laws  of  the  United  States  only  when  the  plaintiff's  statement  of  his  own 
cause  of  action  shows  that  it  is  based  upon  those  laws  or  that  constitution.  It  is 
not  enough,  as  the  law  now  exists,  that  it  appears  that  the  defendant  may  find  in 
the  constitution  or  laws  of  the  United  States  some  ground  of  defensc^^"^ 

4.  Suits  Involving  Corporations  Created  under  Laws  of  United  States. 
— An  action  brought  against  a  corporation  chartered  under  an  act  of  congress  and 
a  local  defendant,  upon  a  joint  liability,  is  a  suit  arising  under  the  laws  of  the 
United  States,  and,  as  such,  is  removable  from  a  state  court  to  a  federal  circuit 
court  on  petition  of  both  defendants. ^•^'^  The  right  of  a  federal  corporation  when 
sued  in  a  state  court,  to  remove  the  cause  to  a  federal  circuit  court,  as  being  one 
arising  under  the  federal  laws,  is  lost  by  bringing  into  the  suit  a  cause  of  action 
against  another  corporation,  with  which  plaintiff  has  no  concern,  and  recovering 
judgment  therein. ^•^'' 

10.  Transaction  upon  Which  Right  to  Recover  Is  Based  Prohibited  by 
Federal  Statutes. — That  one  against  whom  suit  is  brought  relies  for  his  defense 
upon  provisions  contained  in  certain  federal  statutes  as  establishing  that  the  trans- 
action upon  which  the  right  to  recover  is  based  is  prohibited  by  law  only  demon- 
strates that  the  suit  can  not  be  maintained  at  all,  and  not  that  the  cause  of  action 
arises  under  the  constitution  or  laws  of  the  United  States. ^i"" 


withdrawn,  and  thereafter  the  case  was 
proceeded  with  against  the  remaining 
defendants  to  verdict  and  judgment  with- 
out any  objection  by  either  the  plaintifif 
or  the  remaining  defendants.  Anderson 
V.  United  Realty  Co.,  322  U.  S.  164,  56  L. 
Ed.  144,  32  S.  Ct.  50,  affirming  judgment 
in  86   N.   E.   644,   79   Ohio   St.   23. 

667-15,  Estoppel  to  contest  remov- 
ability.—In  re  Moore,  209  U.  S.  490,  52 
L.    Ed.   904,   28    S.    Ct.    585. 

667-15a.  Plaintiff  must  be  deemed  to 
have  consented  to  accept  the  jurisdiction 
of  a  federal  circuit  court  over  a  suit  re- 
moved from  a  state  court  on  defendant's 
petition,  where,  after  the  removal,  plain- 
tiff, instead  of  moving  to  remand,  filed 
an  amended  petition  in  the  federal  court, 
signed  a  stipulation  giving  time  to  the 
defendant  to  answer,  and  entered  with 
the  defendant  into  successive  stipulations 
for  continuances.  In  re  Moore,  209  U. 
S.   490,   52   L.    Ed.   904,  28   S.    Ct.   585. 

671-35a.  When  suit  arises  under  con- 
stitution and  laws  of  United  States. — In 
re  Winn,  213  U.  S.  458,  53  L.  Ed.  873,  29 
S.   Ct.  515. 

Allegations,  in  the  petition  for  the  re- 
moval to  a  federal  circuit  court  of  a  suit 
against  an  interstate  express  company, 
that  the  defendant  was  subject  to  the 
federal  laws  to  regulate  commerce,  and, 
under  those  laws,  had  a  defense  to  the 
cause  of  action,  will  not  justify  removal 
on  the  ground  that  the  cause  is  one  aris- 


ing under  the  federal  constitution  and 
laws,  where  the  cause  of  action  itself  is 
not  based  upon  the  interstate  commerce 
act  or  any  other  federal  law.     In  re  Winn, 

213  U.  S.  458,  53  L.  Ed.  873,  29  S.  Ct.  515. 
674-43a.  Action  brought  against  cor- 
poration chartered  under  an  act  of  con- 
gress.— Texas,  etc.,  R.  Co.  v.  Eastin,  214 
U.  S.  153,  53  L.  Ed.  946,  29  S.  Ct.  564, 
affirming  100  Tex.   556,   102   S.  W.   105. 

An  action  brought  against  a  corpora- 
tion created  by  an  act  of  congress  and 
against  two  of  its  employees  to  establish 
a  joint  liability  for  negligence  is,  as  to 
the  individual  defendants,  as  well  as  to 
the  corporation,  a  suit  arising  under  the 
federal  constitution  or  laws,  within  the 
meaning  of  the  removal  provisions  of 
Act  Aug.  13,  1888,  c.  866,  25  Stat.  433  (U. 
S.  Comp.  St.  1901,  p.  508),  and  is  there- 
fore removable  to  a  federal  circuit  court 
on  petition  of  all  the  defendants.  In  re 
Dunn,  212  U.  S.  374,  53  L.  Ed.  558,  29  S. 
Ct.    299. 

674-43b.    Texas,   etc.,    R.    Co.   v.    Eastin, 

214  U.  S.  153,  53  L.  Ed.  946,  29  S.  Ct.  564, 
affirming  100  Tex.   556,   102  S.   W.   105. 

676-51a.  Transaction  upon  which  right 
of  recovery  based  prohibited  by  federal 
statutes. — Williams  v.  First  Nat.  Bank, 
216  U.  S.  582.  54  L.  Ed.  625,  30  S.  Ct.  441, 
affirming   20    Okl.    274,    95    Pac.    457. 

An  action  on  a  promissory  note  by  one 
claiming  as  a  bona  fide  holder  for  value 
before  maturity  does  not  arise  under  the 


1059 


678-683 


REMOVAL  OF  CAUSES. 


Vol.  X. 


B.  Diversity  of  Citizenship — 2.  Where;  a  Corporation  Is  a  Party. — 
A  corporation  organized  and  existing  under  and  by  virtue  of  the  laws  of  several 
states,  including  the  one  in  which  suit  against  it  is  brought,  must  be  regarded  as 
a  citizen  of  the  latter  state  for  the  purpose  of  determining  its  right  to  remove  the 
cause  to  a  federal  circuit  court,  especially  where  the  constitution  and  laws  of  that 
state  require  that  a  majority  of  the  directors  shall  be. residents,  and  that  the  cor- 
poration shall  keep  a  general  office  in  the  state.^"^ 

4.  Where  a  State  Is  a  Party. — The  mere  presence  on  the  record  of  a  state 
as  a  party  plaintiff  will  not  defeat  the  jurisdiction  of  a  federal  circuit  court  to 
which  the  cause  has  been  removed  from  a  state  court,  on  the  ground  of  a  diver- 
sity of  citizenship,  if  it  appears  that  the  state  has  no  real  interest  in  the  contro- 
versy.^^*^ 

9.  Waiver  of  Objection  to  Jurisdiction. — So  long  as  diverse  citizenship 
exists  the  circuit  courts  of  the  United  States  have  a  general  jurisdiction.  That 
jurisdiction  may  be  invoked  in  an  action  removed  from  a  state  court;  and,  if  any 
objection  arises  to  the  particular  court  which  does  not  run  to  the  circuit  courts 
as  a  class,  that  objection  may  be  waived  by  the  party  entitled  to  make  it.*^^" 

C.  Separable  Controversies — 1.  Stateme.nt  of  the  Rulk. — See  notes 
71,  72. 

A  separable  controversy  exists,  removable  to  a  federal  court  by  a  foreign 
corporation,  joined  as  a  party  defendant  to  a  suit  to  foreclose  a  mortgage,  where 
both  mortgagor  and  mortgagee,  who  are  citizens  of  the  state,  unite  in  attacking 
the  validity  of  a  prior  mortgage  in  favor  of  such  corporation  on"  the  ground  that 
it  was  doing  business  without  complying  with  state  laws,  and  that  the  secured 
note  embraced  charges  exacted  because  of  an  illegal  combination  in  restraint  of 
trade.'^^^ 

2.    How  Separability  Dete;rmine;d. — See  notes  76,  78. 


constitution  or  laws  of  the  United  States, 
so  as  to  be  removable  to  a  federal  circuit 
court  under  the  Oklahoma  enabling  act 
(Act  June  16,  1906,  c.  3335,  §  16,  34  Stat. 
276),  as  amended  by  Act  March  4,  1907, 
c.  2911,  §  1,  34  Stat.  1286,  because  the 
makers  of  the  note  relied  for  their  de- 
fense upon  provisions  of  certain  federal 
statutes  as  establishing  that  the  trans- 
action upon  which  the  right  to  recover 
was  based  was  prohibited  by  law,  which 
would  only  demonstrate  that  the  suit 
could  not  be  maintained  at  all,  and  not 
that  the  cause  of  action  arose  under  the 
federal  constitution  or  laws.  Judgment 
(H)08),  95  P.  457,  20  Okl.  274,  affirmed. 
Williams  z-.  First  Nat.  Bank,  216  U.  S. 
582,    54    L.    Ed.   625,   30    S.    Ct.    441. 

6/8-57a.  Where  a  corporation  is  a 
party.— Patch  v.  Wabash  R.  Co.,  207  U. 
S.    '?77,   52    L.    Ed.    204,   28    S.    Ct.   80. 

P  9-61a.  Effect  of  a  state  being  a  nomi- 
nal party. — Ex  parte  Nebraska,  209  U.  S. 
436     52    L.    Ed.    876,    28    S.    Ct.    581. 

680-69a.  Waiver  of  objection  to  juris- 
diction of  particular  circuit  court. — In  re 
Moore,  209  U.  S.  490,  52  L.  Ed.  904,  28  S. 
Ct.    585. 

Consent  of  both  parties  waives  all  ob- 
jec<-i'ons  to  the  jurisdiction  of  a  federal 
circtiit  court  to  which  has  been  removed 
from  a  state  court,  for  diverse  citizen- 
shin,  a  suit  which,  bj'  reason  of  the  non- 
residence    of    both    parties,    could    not,    in 


view  of  Act  Aug.  13,  1888,  c.  866,  §  1,  25 
Stat.  433  (U.  S.  Comp.  St.  1901,  p.  508), 
have  been  brought  in  that  particular  fed- 
eral circuit  court  in  the  first  instance. 
In  re  Moore,  209  U.  S.  490,  52  L.  Ed. 
904,    28    S.    Ct.    585. 

681-71.  Case  not  removable  unless 
wholly  between  citizens  of  different 
states. — "The  case  can  not  be  removed 
unless  it  is  one  which  presents  a  sepa- 
rable controversy  whollj''  between  citi- 
zens of  different  states."  Chicago,  etc.,  R. 
Co.  V.  Willard,  220  U.  S.  413,  55  L.  Ed. 
521,  31  S.  Ct.  460;  Southern  R.  Co.  v. 
Miller,  217  U.  S.  209,  54  L.  Ed.  732,  30 
U.  S.  209,  54  L.  Ed.  732,  30  S.  Ct.  450,  af- 
firming 3   Ga.  App.  410,   59   S.  E.    1115. 

681-72.  Complete  relief  without  pres- 
ence of  others  originally  made  parties. — 
Southern  R.  Co.  v.  Miller,  217  U.  S.  209, 
54  L.  Ed.  732,  30  S.  Ct.  450,  affirming  3 
Ga.   App.   410,   59   S.   E.   1115. 

683-75a.  Separable  controversy  remov- 
able by  foreign  corporation  joined  as  de- 
fendant.— Fritzlen  t'.  Boatmen's  Bank, 
212  U.  S.  364,  53  L.  Ed.  551,  29  S.  Ct.  366, 
afinrming   75    Kan.    479,    89    Pac.    915. 

683-76.  How  separability  determined. — 
Chicago,  etc.,  R.  Co.  r.  Willard,  220  U. 
S.  413.  55  L.  Ed.  521,  31  S.  Ct.  460,  af- 
firming 165  Fed.  Rep.  181,  91  C.  C.  A. 
215. 

"It  has  been  too  frequently  decided  to 
be  now  questioned  that  the  plaintiff  may 


1060 


Vol.  X. 


REMOVAL  OP  CAUSES. 


684-687 


Fraudulent  joinder  of  a  resident  with  a  nonresident  defendant,  for  the 
purpose  of  defeating  the  removal  of  the  cause  to  a  federal  court,  can  not  be  es- 
tablished, where,  by  the  settled  law  of  the  state  in  which  the  action  was  brought, 
and  in  which  the  cause  of  action  arose,  both  defendants  were  jointly  liable  to 
suitJ''^  In  the  case  of  a  tort  which  gives  rise  to  a  joint  and  several  liability,  the 
plaintiff  has  an  absolute  right  to  elect,  and  to  sue  the  tort  feasors  jointly  if  he 
sees  fit,  no  matter  what  his  motive,  and  therefore  an  allegation  that  the  joinder 
of  one  of  the  defendants  was  fraudulent,  without  other  ground  for  the  charge 
than  that  its  only  purpose  was  to  prevent  removal,  would  be  bad  on  its  face.''^'' 

E.    Jurisdictional  Prerequisites   Fundamental. — See  note  94. 

VI.    Proceeding's  for  Removal. 
B.    Time  for  Application. — A  petition  to  remove  a  cause  from  a  state  to  a 


elect  his  own  method  of  attack,  and  the 
case  which  he  makes  in  his  declaration, 
bill,  or  complaint,  that  being  the  only 
pleading  in  the  case,  is  to  determine  the 
separable  character  of  the  controversy 
for  the  purpose  of  deciding  the  right  of 
removal."  Chicago,  etc.,  R.  Co.  v.  Wil- 
lard,  220  U.  S.  413,  55  L.  Ed.  521,  31  S. 
Ct.  460;  Southern  R.  Co.  v.  Miller,  217 
U.  S.  209,  54  L.  Ed.  732,  30  S.  Ct.  450,  af- 
firming 3   Ga.  App.  410,  59  S.   E.  1115. 

A  case  in  which  plaintiff  has  elected, 
in  conformity  with  the  settled  law  of  the 
state,  to  sue  jointly  in  tort  a  nonresident 
lessee  railway  company,  exclusively 
operating,  controlling,  and  managing  the 
road,  and  its  resident  corporate  lessor, 
upon  a  cause  of  action  arising  in  the 
state,  out  of  the  negligent  operation  of 
the  road,  can  not  be  rem.oved  to  a  fed- 
oral  circuit  court  as  presenting  a  sepa- 
rable controversy  between  the  plaintiff 
and  the  lessee,  although  the  lessor  may 
have  been  joined  for  *-he  purpose  of  ex- 
cluding the  federal  jurisdiction.  Chicago, 
etc.,  R.  Co.  V.  Willard,  220  U.  S.  413.  55 
L.  Ed.  521,  31  S.  Ct.  460,  affirming  judg- 
ment (1908),  Willard  v.  Chicago  B.  &  Q. 
R.   Co.,   165   F.   181,   91   C.   C.  A.  215. 

A  suit  in  which  plaintiff,  in  good  faith, 
has  joined  as  for  a  joint  liability  in  tort 
a  foreign  railway  corporation  and  cer- 
tain of  its  resident  employees  whose  neg- 
ligence caused  the  injury  complained  of, 
is  not  removable  to  a  federal  circuit 
court  as  presenting  a  separable  contro- 
versy between  the  plaintiff  and  the  cor- 
porate defendant.  Judgment  (1908),  59 
S.  E.  1115,  3  Ga.  App.  410,  affirmed. 
Southern  R.  Co.  z'.  Miller,  217  U.  S.  209, 
54   L.    Ed.  732,   30   S.   Ct.  450. 

684-78.  Fraudulent  joinder  of  resident 
defendant. — Illinois  Cent.  R.  Co.  t'.  Shee- 
gog,  215  U.  S.  308,  54  L.  Ed.  208,  30  S- 
Ct.  101,  affirming  126  Ky.  252,  103  S.  W. 
323. 

684-79a.  When  fraudulent  joinder  for 
purpose  of  defeating  removal  can  not  be 
established. — Chicago,  etc.,  R.  Co.  t'.  Wil- 
lard, 220  U.  S.  413^  55  L.  Ed.  521,  31  S. 
Ct.  460,  affirming  165  Fed.  Rep.  181,  91 
C.   C.   A.  215. 


684-79b.  Illinois  Cent.  R.  Co.  v.  Sliee- 
gog,  215  U.  S.  308,  54  L.  Ed.  208,  30  S. 
Ct.    101. 

Allegations  in  the  removal  petition  that 
the  lessor  railway  company  and  the  con- 
ductor of  the  train  were  fraudulently 
joined  as  party  defendants  solely  for  the 
purpose  of  preventing  a  removal  to  a 
federal  circuit  court  for  diverse  citizen- 
ship, of  an  action  commenced  in  a  Ken- 
tucky court,  against  the  nonresident  rail- 
way company  exclusively  operating  the 
road,  to  recover  for  the  death  of  an  en- 
gineer, caused  by  the  alleged  negligent 
operation  of  the  train  and  the  defective 
condition  of  the  road,  are  not  sufficient 
to  entitle  the  petitioner  to  the  removal 
of  the  cause,  where,  in  Kentucky,  the 
facts  alleged  and.  proved  against  the 
lessee  railway  company  in  the  state  covirt 
made  its  lessor  jointly  liable  as  a  matter 
of  law.  Judgment,  Illinois  Cent.  R.  Co. 
of  State  of  Illinois  z'.  Sheegog's  Adm'r, 
103  S.  W.  323,  126  Ky.  252,  affirmed.  Illi- 
nois Cent.  R.  Co.  v.  Sheegog,  215  U.  S. 
308,   54   L.    Ed.   208,    30    S.    Ct.    101. 

687-94.  Presumption  that  jurisdictional 
fact  was  presented  to  court. — The  pre- 
sumption will  be  indulged  that  the  juris- 
dictional fact  of  the  Indian  citizenship  of 
the  accused  in  a  homicide  case  was  pre- 
sented to  the  United  States  court  in  the 
Indian  territory,  and  constituted  the 
ground  of  its  order  changing  the  venue, 
pursuant  to  the  Act  of  June  28,  1898  (30 
Stat,  at  L.  511,  chap.  517),  §  29,  to  the 
federal  district  court  at  Paris,  Texas, 
where  such  citizenship  is  admitted,  and 
the  affidavit  upon  which  the  order  of  re- 
moval was  made  is  not  in  the  record,  and 
the  order  recited  that  the  court  granted 
the  motion,  "being  well  advised  in  the 
premises,"  and  it  is  stated  in  the  affi- 
davit of  the  attorney  for  the  accused, 
filed  in  support  of  a  motion  to  send  the 
case  back  to  Oklaiioma,  that  the  motion 
for  removal  was  made  "under  the  federal 
statute  permitting  said  removal  to  be 
made."  Hendrix  z:  United  States,  219  U. 
S.   79,   55   L.    Ed.   102,   31    S.   Ct.   193. 


lOGl 


701-708 


REMOVAL  OF  CAUSES. 


Vol.  X. 


federal  court  is  in  time  when  filed  as  soon  as  the  petitioner  learns  of  the  filing, 
without  notice,  of  additional  pleadings  in  the  state  court,  the  effect  of  which  is  to 
disclose  a  removable  controversy.'^'^ 

E.  Decision  of  State  and  Federal  Courts  as  to  Removability.— See 
note  86. 

F.  Order  of  Removal. — The  form  and  sufficiency  of  the  order  of  removal 
is  to  be  determined  by  an  interpretation  of  the  statute  under  which  it  is  made.^^^ 

VII.  Effect  of  Removal  Proceedings. 

B.  Divestiture  of  Jurisdiction  of  State  Court. — The  voluntary  dis- 
missal of  an  action  which  has  been  removed  from  a  state  court  to  a  federal 

circuit  court  does  not  preclude  a  subsequent  suit  on  the  same  cause  of  action  in 
the  state  court.'*"'' 

D.  Where  Removal  Is  Not  Effected. — The  dismissal  against  the  conten- 
tion of  plaintitl  after  the  expiration  of  the  time  prescribed  by  statute  for  the  re- 
moval of  causes  from  the  state  to  the  federal  court  of  an  action  which  was  brought 
against  a  resident  and  a  nonresident,  so  far  as  it  afi:ects  the  former,  does  not  de- 
prive the  state  court  of  jurisdiction  to  proceed  with  the  cause  against  the  latter, 
or  entitle  him  to  remove  the  cause  to  the  federal  court. i'^ 

E.  Jurisdiction  Acquired  by  Federal  Court — 1.  In  General. — See  note  4. 

VIII.  Remand  to  State  Court. 

H.  Second  Application  for  Removal  after  Remand. — An  order  remand- 
ing a  cause  to  the  state  court  whence  it  was  removed  does  not  control  the  right 


701-74a.    When  petition  is  filed  in  time. 

— Fritzlen  v.  Boatmen's  Bank,  212  U.  S. 
364,    53    L.    Ed.    551,    29    S.    Ct.    3G(3. 

703-86.  The  state  courts  have  no  juris- 
diction to  pass  finally  upon  facts  stated  in 
a  petition  for  the  removal  of  a  cause 
from  a  state  to  a  federal  court,  since  that 
is  the  exclusive  province  of  the  federal 
court.  Judgment  (1907),  102  S.  W.  105, 
100  Tex.  556,  affirmed.  Texas,  etc.,  R. 
Co.  V.  Eastin,  214  U.  S.  153,  53  L.  Ed. 
946,   29    S.    Ct.   564. 

A  federal  circuit  court  has  the  right 
to  determine  the  question  of  the  right  to 
remove  a  case  from  a  state  court  inde- 
pendently of  the  jurisdiction  and  de- 
termination of  the  state  courts,  in  view^ 
of  the  provisions  of  Removal  Act  March 
3,  1875,  c.  137,  §§  3,  5,  7,  18  Stat.  471, 
472  (U.  S.  Comp.  St.  1901,  pp.  510,  512), 
that,  a  petition  and  bond  being  entered 
in  the  circuit  court,  the  cause  shall  pro- 
ceed in  the  same  manner  as  if  originally 
commenced  there,  that  such  court  may 
remand  and  dismiss  the  case  if  it  does 
not  really  and  substantially  involve  a  dis- 
pute or  controversy  pr-jperly  within  its 
jurisdiction,  or  if  there  is  improper  and 
collusive  joinder  of  parties,  and  may  is- 
sue certiorari  to  compel  the  state  court 
to  make  return  of  the  record  and  enforce 
such  writ.  Judgment  (1907),  ]\Iaysville 
&  B.  S.  R.  Co.  z'.  McCabe's  Adm'x,  100 
S.  W.  219,  30  Ky.  Law  Rep.  1009,  re- 
versed. Chesapeake,  etc.,  R.  Co.  v.  Mc- 
Cabe,  213  U.  S.  207,  53  L.  Ed.  765,  29  S. 
Ct.   430. 


703-86a.  Order  of  removal.— The  fed- 
eral district  court  at  Paris,  Texas,  can 
not  be  said  to  have  been  without  juris- 
diction to  try  a  member  of  the  Choctaw 
and  Chickasaw  Nation  charged  with 
homicide,  because  the  order  of  the 
United  States  .court  in  the  Indian  ter- 
ritory, changing  the  venue,  pursuant  to 
the  Act  of  June  28,  1898  (30  Stat,  at  L. 
511,  chap.  517),  §  29,  did  not  state  whether 
the  cause  was  transferred  to  the  federal 
district  or  circuit  court,  but  only  to  the 
"United  States  court''  at  that  place. 
where  the  district  court  was  the  only 
court  to  which  the  case  could  have  been 
removed  under  the  statute,  and  the 
record  was  transferred  to  and  filed  in 
that  court,  and  the  case  was  tried  there. 
Hendrix  v.  United  States.  219  U.  S.  79, 
55   L.    Ed.   102,   31    S.  Ct.    193. 

707-96a.  Voluntary  dismissal  of  action 
after  removal. — Southern  R.  Co.  v.  Miller, 
217  U.  S.  209,  54  L.   Ed.   732,  30  S.   Ct.   450. 

708-la.  Dismissal  of  action  against 
resident  and  nonresident  after  time  pre- 
scribed for  removal- — Latlirop,  etc.,  Co. 
V.  Interior  Const.,  etc.,  Co.,  143  Fed.  687, 
reversing  150  Fed.  Rep.  666. 

708-4.  The  validity  of  the  service  of 
process  upon  a  foreign  corporate  de- 
fendant is  open  in  a  federal  circuit 
court  after  the  cause  has  been  removed 
to  that  court  from  a  state  court  on  the 
petition  of  such  defendant.  ^Mechanical 
Appliance  Co.  v.  Castleman,  215  U.  S. 
437,  54  L.   Ed.  272,  30  S.   Ct.  125. 


1062 


Vol.  X.  REPLEVIN.  715-716 

to  make  a  second  application  for  removal  if  it  results  from  the  subsequent  plead- 
ings or  the  conduct  of  the  parties  that  the  cause  becomes  a  removable  one.-^^'' 

XL    Waiver  of  Objection  to  Jurisdiction  of  Court  to  Which  Cause  Has 

Been  Removed. 

A  general  appearance  by  plaintiff  in  a  federal  circuit  court  after  the  cause  has 
been  removed  from  a  state  court  does  not  waive  an  objection  to  jurisdiction 
founded  on  the  total  lack  of  any  controversy  of  a  federal  nature,  since  in  such 
cases  consent  of  both  parties  can  not  confer  jurisdiction.^^'^ 

RENDITION  OF  JUDGMENT.— See  ante,  Judgments  and  Decrees,  p.  807. 

RENT. — See  ante,  Landlord  and  Tenant,  p.  820. 

REPAIR.— See   note   1. 

REPEAL  OF   STATUTES.— See  post,   Statutes. 

REPLACEMENT.— See  ante,  Repair,  p.  1063. 


REPLEVIN. 

11.  Right  of  Action,   1063. 

B.  Property  Subject  to  Replevin,  1063. 

4.  Property  in  Custody  of  the  Law,  1063. 

c.  Property  in  Possession  of  Referee  in  Bankruptcy,  1063. 

IV.  Procedure,  1064. 

E.  The  Bond,  1064. 

2.  Defendant's  Redelivery  Bond,  1064. 

VI.  Liability  on  Bonds  and  Undertakings,  1064. 
A.  Replevin  Bonds,  1064. 

1.  Accrual  or  Release  of  Liability,  1064. 

f.  Change  in  Remedy  of  Procedure,  1064. 

3.  Actions,  1064. 

a.  Condition  Precedent,  1064. 
h.  Question  for  Jury,  1064. 

4.  Conclusiveness  of  Adjudication  in  Replevin  Proceedings,  1064. 

CROSS  REFERENCES. 

See  the  "title  Replevin,  vol.  10,  p.  717,  and  references  there  given. 

II.  Right  of  Action. 

B.    Property  Subject  to  Replevin — 4.    Property  in  Custody  oe  the  Law 
— c.  Property  in  Possession  of  Referee  in  Bankruptcy. — As  to  elTect  of  adjudi- 

713-39a.  Second  application  for  removal  are  sufficient  to  justify  the  granting  of  a 

after      remand. — Fritzlen      v.       Boatmen's  second  application   for  removal.     Fritzlen 

Bank,  2] 2  U.  S.  364,  53  L.  Ed.  551,  29  S.  v.    Boatmen's    Bank,    212    U.    S.    3G4.   53 

Ct.   366.  L.    Ed.   551,   29    S.    Ct.   360. 

Changes  in  the  pleadings  in  an  action  715-44a.  Objection  not  waived  by  gen- 
to  foreclose  a  mortgage  after  the  cause  eral  appearance  of  plaintiff. — In  re  Winn, 
has  been  remanded  to  the  state  court  213  U.  S.  458,  53  L.  Ed.  873,  29  S.  Ct.  515. 
whence  it  had  been  removed,  which  show  716-1.  Repair  and  replacement.^As  to 
the  untruth  of  the  averment  in  the  peti-  repair  and  replacement  meaning  restora- 
tion of  the  junior  character  of  another  lion  of  worn  out  parts,  when  pertaining 
mortgage  held  by  a  foreign  corporation  to  patents,  see  Leeds,  etc.,  Co.  v.  Victor 
which  was  made  a  party  defendant,  and  Talking  Mach.  Co.,  No.  2,  213  U.  S.  325, 
the  existence  of  a  separable  controversy  336,  53  L.  Ed.  816,  29  S.  Ct.,503.  See,  also, 
between  such  corporation  and  the  other  ante,  PATENTS,  p.  936. 
parties,  who  are  all  citizens  of  the  state. 

1063 


725-727  REQUISITION.  Vol.  X. 

cation  in  bankruptcy  as  bar  to  an  action  of  replevin  in  state  court  to  recover  prop- 
erty in  possession  of  referee  at  the  time  when  action  is  begun,  see  ante,  Bank- 
ruptcy, p.  168. 

IV.  Procedure. 

E.  The  Bond — 2.  DE;ifSNDANT's  Re;de:livery  Bond. — See  post,  "Change  in 
Remedy  of  Procedure,"  VI,  A,  1,  f ;  "Conditions  Precedent,"  VI,  A,  3,  a;  "Ques- 
tion for  Jury,"  VI,  A,  3,  h ;  "Conclusiveness  of  Adjudication  in  Replevin  Pro- 
ceedings," VI,  A,  4, 

VI.  Liability  on  Bonds  and  Undertakings. 

A.  Replevin  Bonds — 1.  Accrual  or  Release  of  Liability— f.  Change  in 
Ronedy  of  Procedure. — A  redelivery  bond  in  replevin  must  be  regarded  as  hav- 
ing been  entered  into  subject  to  such  changes  in  remedy  or  procedure  as  do  not 
change  the  contractual  rights  of  the  parties. ^■''^ 

3.  Actions — a.  Condition  Precedent. — An  action  upon  the  redelivery  bond  in 
replevin  is  not  premature  because  started  during  the  pendency  of  a  writ  of  error 
in  the  supreme  court  of  Hawaii,  to  review  the  judgment  in  the  replevin  suit, 
where,  pursuant  to  Laws  Hawaii  1903,  c.  32,  §§  17-19,  enacted  after  the  making 
of  the  redelivery  bond,  an  execution  had  been  issued  and  returned  unsatisfied,  be- 
cause of  the  failure  to  give  a  new  redelivery  bond  upon  an  affidavit  of  insuffi- 
ciency.^^^ 

h.  Question  for  Jury. — Tender. — Whether  the  evidence  in  a  suit  on  a  re- 
delivery bond  in  replevin  shows  a  tender  of  redelivery  of  the  property  by  the 
principal  obligor  after  judgment  requiring  such  return  is  for  the  jury  to  deter- 
mine, upon  proper  instructions.^^^ 

4,  Conclusiveness  of  Adjudication  in  Replevin  Proceedings. — See 
note  59. 

REPLEVIN  BOND.— See  ante.  Replevin,  p.   1063. 

REPORTS  AND  REPORTERS.— See  the  title  Reports  and  Reporters, 
vol.  10,  p.  728,  and  references  there  given. 

REPRESENTATIONS.— See  ante,  Fraud  and  Deceit,  p.  597;  post,  Sales; 
Vendor  and  Purchaser. 

REPRIEVES.— See  ante,  Pardon,  p.  930. 

REQUISITION.— See  ante.  Extradition,  p.   571. 

725-50a.    Change   in    remedy     of     pro-  320,  55  L.   Ed.  237,  31   S.   Ct.  241. 

cedure. — A    redelivery    bond    in     replevin  727-58a.     Question     for     jury — Tender. 

must  be  regarded  as  having  been  entered  — Bierce    r.    Waterhonse,    219    U.    S.    320, 

into   subject    to   such    changes    in    remedy  55   L.   Ed.   237,   31    S.   Ct.   241. 

or  procedure   as   do  not  change   the   con-  727-59.     Where    sureties    concluded    by 

tractual    rights    of   the    parties,    e.    g.,    the  proceedings  in  replevin  suit. — The  surety 

statutory    allowance    of    a    writ    of    error  on  a  redelivery  bond  in   replevin  can   not 

from    the    federal    supreme    court,    to    re-  object  that  his  liability  was  enlarged  be- 

view    the    final   judgment    in    the    replevin  yond  his  undertaking,  so  as  to   discharge 

suit,   where   no   such   review   had   thereto-  him    from    liability,    by    the    allowance    of 

fore  been  permissible,  or  subsequent  leg-  amendments    to    the    declaration     in      re- 

islation    authorizing    the    issuance    of    an  plevin    suit,    increasing    the    alleged   value 

execution   during   the   pendency   of  a  writ  of    the    property,    where    the    issue    as    to 

of  error   to   review   such   judgment   if  the  the    propriety    of    such    amendments    was 

defendant  should  be  ruled  to  give   a  new  in   issue   in   the   replevin   suit   and   was   de- 

redelivery   bond   upon    an    affidavit    of   in-  cided   against   the   principal  in   such   bond, 

sufficiency.       Bierce    f.    Waterhouse,    219  and    the    penalty    of    the    bond    was    not 

U.   S.   320,  55  L.   Ed.  237,  31   S.   Ct.  241.  thereby  exceeded.     Bierce  v.  Waterhouse, 

726-53a.  Premature  suit  on  redelivery  219  U.  S.  320.  55  L.  Ed.  237,  31  S.  Ct.  241. 
bond. — Bierce    v.    Waterhouse,    219    U.    S. 

1064 


Vol.  X.  RES  ADJUDICATA. 


RES  ADJUDICATA. 

III.  Elements  Essential  to  Application  of  Doctrine,   1066. 

B.  Identity  of  Parties,  Cause  of  Action,  Subject  Matter  and  Issues,  1066. 
2.  Identity  of  Parties,   1066. 
a.  General  Rule,  1066. 
D.  Alutuality,   1066. 

IV.  In  Whose  Favor  and  against  Whom  Doctrine  Applicable,  1066. 

A.  General  Rule,   1066. 

B.  Rule  Construed  and  Applied,  1066. 

1.  Who  Are  Parties  and   Privies  within  Rule,   1066. 

a.  Who  Are   Parties,   1066. 

2.  Application  of  Rule  to  Particular  Persons  and  Classes  of  Persons, 

1066. 

b.  Parties  by  Representation.   1066. 

u.  Federal  or  State  Government  and  Its  Tenants  or  Agents,  1067. 

V.  As  to  What  Matters  Conclusive,   1067. 

B.  Where  Second  Action  on  Same  Claim  or  Demand,  1067. 

2.  Matters  Available  as  Ground  of  Recovery,  1067. 

c.  Rule  Inapplicable  to  Distinct  or  Successive  Causes  of  Action, 

1067. 

C.  Where  Second  Action  on  Different  Claim  or  Demand,  1067. 

1.  Necessity  That   Precise  Question    Shall  Have  Been  Determined, 

1067. 
a.  General  Rule,  1067. 

2.  Extent  and  Limitations  of  Doctrine,  1068. 

a.  Judgment  an  Estoppel  as  to  All  ^Material  Issues  Decided,  1068. 

(2)  Applications  of  Rule,  1068. 

VI.  To  What  Judgments  or  Decrees  Doctrine  Applicable,  1068. 

A.  Nature  of  Judgment  or  Decree  as  Determining,   1068. 

1.  Necessity  for  Valid  Existent  Decision  by  Court  of  Competent  Ju- 

risdiction,  1068. 

b.  Effect  of  Invalidity  as  Distinguished  from  ^lere  Error  or  Ir- 

regularity,  1068. 

2.  Judgment  or  Decree  Alust  Be  Final,  1068. 

B.  Application  as  Dependent  on  Tribunal,  Nature  of  Proceedings,  or  Man- 

ner in  Which  Adjudication  Obtained,   1068. 

1.  Applicable  to  \'alid  Decisions  of  All  Courts  of  Competent  lurisdic- 

tion,  1068. 

c.  Decisions  of  Courts  of  Other  States  and  of  Federal  Courts, 

1068. 

2.  As  Dependent  on  Nature  of  Proceedings  in  Whicii  Adjudication 

Obtained,   1068. 
g.  Application  to  Criminal   Proceedings.   1068. 

3.  Application  Irrespective  of    Manner  in  Which  Adjudication  Ob- 

tained, 1068. 
f.  Judgments   on   Demurrer,    1068. 

VII.  Pleading  and  Proof,  1068. 

C.  Proof,  1068. 

106.5 


735-746 


RBS  ADJUDICATA. 


Vol.  X. 


2.  Admissibility  of  Extrinsic  Evidence  as  to  Scope  and  Effect  of  For- 
mer Decision.  1068. 
a.  General  Rules  Determining,   1068. 
D.  Determination  on   Plea  of  Res  Adjudicata,   1069. 

CROSS  REFERENCES. 

See  the  title  Res  Adjudicata,  vol.   10,  p.  729,  and  references  there  given. 

III.  Elements  Essential  to  Application  of  Doctrine. 
B.    Identity  of  Parties,  Cause  of  Action,  Subject  Matter  and  Issues — 

2.  Identity  of  Parties — a.  General  Rule. — See  note  15. 
D.     Mutuality.— See  note  2>Z. 

IV.   In  Whose  Favor  and  against  Whom  Doctrine   Applicable. 

A.  General  Rule. — See  note  40. 

B.  Rule   Construed    and    Applied — 1.    Who    Are  Parties  and    Privies 
within  Ruee — a.  Who  Are  Parties. — See  notes  46,  49. 

2.  Application  of  Rule  to  Particular  Persons  and  Classes  of  Persons — 
b.  Parties  by  Representation. — See  note  54. 


735-15.    Identity   of  parties   essential. — 

Chantangco  v.  Abaroa,  218  U.  S.  476,  54 
L.    Ed.   1116,   31    S.    Ct.   34. 

738-33.  Mutuality  essential  to  estoppel 
by  judgment. — Chantangco  v.  Abaroa, 
218  U.  S.  476,  54  L.  Ed.  1116,  31  S.  Ct.  34; 
IngersoU  v.  Coram,  211  U.  S.  335,  53  L. 
Ed.    208,    29    S.    Ct.    92. 

741-40.  Illustrations. — A  decree  of  a 
federal  circuit  court,  dismissing,  for  want 
of  equity,  a  bill  filed  by  several  holders 
of  railroad  equipment  bonds  "on  their 
own  behalf  as  well  as  in  behalf  of  all 
those  in  like  interest  who  may  come  in 
and  contribute  to  the  expenses  of,  and 
join  in  the  prosecution  of,  this  suit,"  to 
obtain  a  sale  of  the  railroad  property  to 
satisfy  the  lien  of  such  bonds,  is  not  a 
bar  to  the  claim  for  a  lien  of  holders  of 
the  equipment  bonds  who  were  not  par- 
ties tp  that  suit.  Decree  (Sup.  1906),  78 
N.  E.  1141,  74  Ohio  St.  483,  reversed. 
Wabash  R.  Co.  v.  Adelbert  College.  208 
U.  S.  38,  52  L.  Ed.  379,  28  S.  Ct.  182,  re- 
hearing denied  in  208  U.  S.  609,  52  L-  Ed 
642,  28  S.   Ct.  425. 

A  homestead  claimant  whose  rights  at- 
tached before  any  interest  in  the  land 
was  acquired  by  a  railway  company  un- 
der a  congressional  grant  is  not  con- 
cluded by  an  adjudication  against  the 
government  in  a  suit  brought  by  it  to 
cancel  certain  patents  issued  to  the  rail- 
way company,  including  one  for  the  land 
in  question,  to  which  suit  he  was  not 
made  a  party,  although  he  may  have  been 
an  active  member  of  a  Settlers'  Protec- 
tive Association,  which  may  have  made 
such  representations  to,  and  brought 
such  facts  to  the  attention  of,  the  gov- 
ernment, as  to  induce  the  government  to 
bring  the  suit.  Judgment  (1906),  87  P. 
366.  74  Kan.  424,  118  Am.  St.  Rep.  321. 
affirmed.  Brandon  v.  Ard,  211  U.  S  11 
53    L.    Ed.    68,    29    S.    Ct.    1. 


743-46.  Persons  without  such  rights 
regarded  as  strangers. — Brandon  v.  Ard, 
211  U.   S.  11,  53   L.   Ed.   68,  29  S.  Ct.  1. 

745-49.  The  assistance  by  one  of  two 
joint  tort  feasors  in  the  defense  of  a  suit 
against  the  other,  because  of  interest  in 
the  decision  as  a  judicial  precedent  which 
might  influence  the  decision  in  his  own 
case,  will  not  create  an  estoppel  by  the 
judgment  as  to  him.  Bigelow  v.  Old  Do- 
minion, etc.,  Smelting  Co.,  225  U.  S.  Ill, 
56  L.   Ed.   1009,  32   S.   Ct.   641. 

746-54.  Persons  represented  by  and 
claiming  under  parties.— Irrigation  canal 
companies  and  persons  claiming  under 
them,  made  parties  to  a  suit  over  water 
rights,  whether  viewed  as  appropriators 
of  water,  or  as  mere  carriers  for  others, 
sufficiently  represent  the  users  of  the 
waters  of  the  respective  canals  to  cause 
such  water  users  to  be  bound  by  the 
judgment.  Montezuma  Canal  Co.  v. 
Smithville  Canal  Co.,  218  U.  S.  371,  54 
L.  Ed.  1074,  31  S.  Ct.  67,  reversing  decree 
(1907),  89  P.  512,   11  Ariz.   99. 

A  decree  of  a  federal  court,  enjoining 
a  state  board  of  valuation  and  assess- 
ment from  assessing  bank  stock  for 
taxation,  which  proceeds  solely  upon  the 
ground  that  such  board  is  the  agent  of 
the  local  mimicipalities,  and  is  therefore 
bound  by  the  prior  injunction  decree  ob- 
tained against  a  count}'  in  a  suit  to  which 
the  board  was  not  a  party,  can  not  con- 
clude another  county,  on  any  theory  of 
the  dependence  of  the  power  of  the 
county  to  collect  taxes  upon  the  valua- 
tion and  apportionment  made  by  the 
board — especially  where  the  state  courts 
do  not  adopt  this  theory  of  the  relation 
at  the  board  of  valuation  to  the  counties 
and  other  municipalities  of  the  state. 
Judgment  (1906),  94  S.  W.  620,  29  Ky. 
Law  Rep.  643,  affirmed.  Bank  v.  Ken- 
tucky. 207  U.  S.  258,  52  L.  Ed.  197,  28  S. 
Ct.   82. 


1066 


Vol.  X. 


RES  ADJUDICATA. 


754-765 


u.   Federal  or  State  Government  and  Its  Tenants  or  Agents. — See  note  91. 
V.    As  to  What  Matters  Conclusive. 

B.  Where  Second  Action  on  Same  Claim  or  Demand — 2.  Matters 
Available  as  Ground  of  Recovery — c.  Rule  Inapplicable  to  Distinct  or  Succes- 
sive Causes  of  Action. — See  note  30. 

C.  Where  Second  Action  on  Different  Claim  or  Demand — 1.  Neces- 
sity That  Precise  Question  Shall  Have  Been  Determined — 'a.  General 
Rule. — See  note  52. 


754-91.  A  judgment  of  ejectment 
against  an  officer  of  the  United  States  in 
possession  of  the  propertj^  rendered  in 
an  action  in  which  tiie  district  attorney 
of  the  United  States,  by  direction  of  the 
attorney  general  and  the  secretary  of  the 
treasury,  appeared  on  behalf  of  the 
United  States  and  conducted  the  defense, 
does  not  estop  the  United  States  in  a 
subsequent  action  from  contesting  the 
title  to  the  property.  Hussey  v.  United 
States,  222  U.  S.  88,  56  L.  Ed.  106,  32  S. 
Ct.  3.3. 

761-30.  A  judgment  sustaining  a  de- 
murrer to  the  petition  in  an  action  by  a 
creditor  of  a  national  bank  against  the 
directors,  because  the  court  was  of  the 
opinion  that  the  petition  only  stated  a 
right  to  recover  for  violations  of  the  na- 
tional bank  act,  causing  damage  to  the 
bank  as  such,  the  right  to  recover  for 
which  was  an  asset  of  the  bank,  enforce- 
able only  by  its  receiver,  is  not  a  bar  to 
a  recovery  in  another  action  between  the 
same  parties  under  a  petition  which  sets 
lip  a  right  to  recover  for  the  individual 
loss  suffered,  as  distinct  from  the  right 
of  the  bank.  Judgment,  Yates  v.  Jones 
Nat.  Bank  (Xeb.  1905),  105  N.  W.  287. 
modified.  Yates  v.  Utica  Bank,  206  U. 
S.    181.    51    L.    Ed.    1015,    27    S.    Ct.    640. 

A  judgment  upon  a  promissor}-  note 
given  for  the  price  of  fertilizers  in  an 
action  in  which  injury  to  defendant's 
crops  because  of  their  bad  quality  was 
not  set  up  as  a  defense  does  not  preclude 
a  separate  suit  to  recover  such  damages. 
Judgment,  Kirven  v.  Virginia-Carolina 
Chemical  Co.  (1907),  58  S.  E.  424,  77  S. 
C.  493.  affirmed.  Virginia-Carolina  Chem- 
ical Co.  z:  Kirven,  215  U.  S.  252,  54  L.  Ed. 
179.  30  S.  Ct.  78. 

A  determination  in  a  suit  by  the  United 
States  against  the  Southern  Pacific  Rail- 
road Company,  tried  as  a  bill  to  quiet 
title,  against  claims  of  such  company 
under  the  branch  line  grant  made  by  the 
Act  of  March  3,  1871  (16  Stat,  at  L.  573, 
chap.  122).  that  it  took  no  title  to  lands 
lying  within  the  primary  limits  of  the 
grant  to  the  Atlantic  &  Pacific  Railroad 
Company,  made  by  the  Act  of  July  27, 
1866,  is  not  a  bar  to  a  claim  by  the 
Southern  Pacific  Railroad  Company  to 
the  sam.e  land  under  a  selection  as  in- 
demnity lands,  made  after  the  forfeiture 
of  its   grant   by   the   Atlantic     &     Pacific 


Railroad  Company,  on  the  theory  that 
such  land  was  also  embraced  within  the 
indemnity  limits  of  the  main  line  grant 
made  to  the  Southern  Pacific  Railroad 
Company  by  the  Act  of  July  27,  1866, 
and  that  under  such  act  each  road,  in 
case  of  conflict,  took  half  the  land  within 
conflicting  place  limits.  United  States  t'. 
Southern  Pac.  R.  Co.,  223  U.  S.  565,  56 
L.    Ed.    553,    32    S.    Ct.    326. 

765-52. "  Instances  in  which  former 
juagment  held  not  an  estoppel. — A  decree 
enjoining  a  municipalit}',  at  the  suit  of 
a  waterworks  company,  from  building  its 
own  waterworks,  or  denying  liability,  or 
refusing  to  pay  the  water  rentals  con- 
tracted for,  is  not  conclusive  as  to  the 
right  of  the  municipality  to  regulate 
water  rates  charged  to  private  consumers 
under  a  law  passed  long  after  the  bill 
was  filed,  even  if  it  could  be  said  that  the 
pleadings  put  in  issue  the  reasonable- 
ness of  the  rates  then  charged.  Vicks- 
burg  V.  Vicksburg  Waterworks  Co.,  206 
U.   S.  496,  51  L.  Ed.  1155,  27  S.   Ct.  762. 

An  adjudication  that  the  ownership  by 
a  lailway  carrier  of  stock  in  a  bona  fide 
corporation  manufacturing,  mining,  pro- 
ducing, or  owning  the  commodity  carried 
is  not  the  interest  in  such  commodity 
forbidden  to  the  carrier  by  Hepburn  Act 
June  29,  1906,  c.  3591,  34  Stat.  584  (U.  S. 
Comp.  St.  Supp.  1909,  p.  1149),  is  not  res 
judicata  of  the  right  of  such  carrier  to 
exert  iis  power  as  a  stock  holder  so  as 
to  deprive  the  other  corporation  of  all 
real  independent  existence,  and  to  make 
it  virtually  but  an  agency,  or  dependency, 
or  department  of  the  carrier.  United 
States  V.  Lehigh  Valley  R.  Co.,  220  U. 
S.  257,   55  L.  Ed.  458,  31   S.  Ct.  387. 

A  decree  establishing  a  will  does  not 
determine  that  any  particular  property 
belongs  to  the  decedent's  estate.  Lewers 
V.  Atcherly,  222  U.  S.  285,  56  L.  Ed.  202, 
32    S.   Ct.   94. 

Presumption  in  absence  of  record. — In 
the  absence  of  the  record  of  an  adverse 
suit,  there  is  no  presumption  that  sub- 
terranean rights  under  lode  mining  loca- 
tions were  therein  considered  and  de- 
termined. Judgment,  United  States  Min. 
Co.  z:  Lawson  (1904).  134  F.  769,  67  C. 
C.  A.  587,  affirmed.  Lawson  v.  United 
States  Min.  Co.,  207  U.  S.  1,  52  L.  Ed. 
65,  28   S.   Ct.   15. 


106] 


770-795 


RBS  ADJUDICATA. 


Vol.  X. 


2.  Extent  and  Limitations  of  Doctrine — a.  Judgment  an  Estoppel  as  to  All 
Material  Issues  Decided — (2)  Applications  of  Rule. — See  note  70. 

VI.  To  What  Judgments   or  Decrees   Doctrine  Applicable. 

A.  Nature  of  Judgment  or  Decree  as  Determining — 1.  Necessity  for 
Vai,id  Existent  Decision  by  Court  of  Competent  Jurisdiction — b.  Effect  of 
Invalidity  as  Distinguished  from  Mere  Error  or  Irregularity. — See  note  90. 

2.  Judgment  or  Decree  ]\Iust  Be  Final. — See  note  92. 

B.  Application  as  Dependent  on  Tribunal,  Nature  of  Proceedings,  or 
Manner  in  Which  Adjudication  Obtained — 1.  Ai'plicai!le  to  \  alid  Deci- 
sions OF  All  Courts  of  Competent  Jurisdiction — c.  Decisions  of  Courts  of 
Other  States  and  of  Federal  Courts. — See  note  26. 

2.  As  Dependent  on  Nature  of  Proceedings  in  Which  Adjudication  Ob- 
tained— g.    Application  to  Criminal  Proceedings. — See  note  52. 

3.  Application  Irrespective  of  Manner  in  Which  Adjudication  Ob- 
tained— f.   Judgments   on   Demurrer. — See  note  87. 

VII.  Pleading  and  Proof. 

C.  Proof — 2.  Admissibility  of  Extrinsic  Evidence  as  to  Scope  and  Ee- 
FECT  OF  Former  Decision— a.  General  Rules  Determining. — See  note   17. 


770-70.  Adjudications  as  to  matters  of 
title. — A  decree  determining  the  rights 
of  an  irrigation  canal  company  in  the 
waters  of  a  river,  as  against  the  owners 
of  other  irrigation  canals  taking  water 
from  the  river  at  points  above  the  head 
of  its  own  canal,  and  against  all  persons 
claiming  under  them,  is  res  judicata  as 
to  such  canal  ovv'ners  and  the  water  users 
under  such  canals  in  a  subsequent  con- 
troversy over  the  respective  rights  of 
the  appropriators  of  the  waters  of  such 
river.  Montezuma  Canal  Co.  i\  Smith- 
ville  Canal  Co.,  218  U.  S.  371,  54  L.  Ed. 
1074,  31  S.  Ct.  67,  reversing  decree 
(1907),    89    P.    512.    11    Ariz.    99. 

774-90.  Judgment  based  on  mistake  of 
law. — A  judgment  is  no  less  conclusive 
because  it  is  based  upon  a  mistake  of 
law.  American  Exp.  Co.  i\  IMullins,  212 
U.    S.   311,   53   L.   Ed.   525,   29   S.   Ct.   381. 

774-92.  An  ex  parte  direction  to  a  tes- 
camentary  trustee  to  pay  over  a  portion 
of  the  income  of  the  trust  property  to 
children  of  the  testator,  on  the  theorj' 
that  they  have  become  legitimate  by  the 
subsequent  marriage  of  their  parents,  is 
not  res  judicata  where  no  notice  was 
given  of  the  proceedings,  and  there  was 
no  contest  or  issue  made  concerning  the 
legitimacy  of  the  children.  Kealoha  f. 
Castle,  210  U.  S.  149,  52  L.  Ed.  998,  28  S. 
Ct.  684. 

780-26.  Conclusiveness  of  judgments 
or  decrees  of  federal  courts  in  state 
courts. — The  final  judgment  of  a  federal 
circuit  court  dismissing  a  suit  after  refus- 
ing to  remand  the  case  to  the  state  court, 
whence  it  had  been  removed,  must,  while 
unreversed,  be  given  full  efifect  by  the 
state  court  when  set  up  as  a  bar  to  the 
action  after  the  order  of  the  state  court, 
granting    the    petition     for    removal,    had 


been  reversed  by  the  highest  state  court, 
and  the  case  remanded  for  trial,  although 
the  federal  court  may  have  been  in  error 
in  holding  the  case  to  be  a  removable  one. 
Chesapeake,  etc..  R.  Co.  v.  McCabe,  213 
U.  S.  207,  53   L.   Ed.  765,  29  S.   Ct.  430. 

785-52.  Record  of  criminal  proceedings 
not  conclusive  in  civil  actions. — Chan- 
tangco  r.  Abaroa,  218  U.  S.  47(3,  54  L.  Ed. 
IIIG.   31   S.   Ct.   34. 

Under  Philippine  Codes. — A  civil  action 
for  indemnification  for  the  damages  re- 
sulting from  the  malicious  or  unlawful 
burning  of  a  storehouse  and  its  contents 
may  not  be  maintained  in  the  Philippine 
courts,  where  there  has  been  a  judgment 
of  acquittal  against  the  same  defendant 
for  the  same  malicious  and  unlawful 
burning,  in  viev.'  of  the  positive  legisla- 
tion in  the  Philippine  Codes,  civil  and 
criminal,  drawing  a  distinction  between 
a  civil  liability  which  results  from  the 
mere  negligence  of  the  defendant,  and  a 
liability  for  the  civil  consequences  of  a 
crime  by  which  another  has  sustained 
loss  or  injury,  and  of  the  plain  inference 
from  art.  17  of  the  Penal  Code  that  civil 
liability  springs  out  of  and  is  dependent 
upon  facts  which,  if  true,  would  consti- 
tute a  crime  or  misdemeanor,  and  of  the 
provisions  of  Code  Cr.  Proc,  §§  108,  112, 
742,  which  plainly  contemplate  that  the 
civil  liability  of  the  defendant  shall  be  as- 
certained and  declared  in  the  criminal 
proceedings.  Chantangco  v.  Abaroa,  218- 
U.  S.  476,  54  L.   Ed.  1116,  31  S.  Ct.  34. 

791-87.  Conclusiveness  of  judgment 
not  affected  by  fact  of  rendition  on  de- 
murrer.—  Vates  V.  Utira  T^ank.  206  U.  S. 
181,  51  L.  Ed.  1015,  27  S.  Ct.  646. 

795-17.  Interpretation  according  to 
language  of  judgment,  pleadings  and  pro- 
ceedings.— Yates  t:  Utica  Bank,  206  U.  S- 


1068 


Vol.  X.  RESERVATION.  798-811 

D.    Determination  on  Plea  of  Res  Adjudicata. — See  note  32. 

RESCISSION,  CANCELLATION  AND  REFORMATION. 

I.  Rescission  and  Cancellation,  1069. 

B.  Grounds  for  Relief,  1069. 

3.  Fraud,  1069. 

C.  Conditions  of  Relief,   1069. 

3.  Inadequacy  of  Remedy  at  Law,   1069. 

D.  Nature  of  Relief   Afiforded,   1069. 

2.  Restoration  of  Original  Status,  1069. 
a.  In  General,  1069. 

CROSS  REFERENCES. 

See  the  title  Rescission,  Cancellation  and  Reformation,  vol.  10,  p.  799, 
and  references  there  given. 

In  addition  as  to  cancellation  or  annulment  of  deeds  in  proceedings  to  quiet 
or  remove  cloud  from  title,  see  ante.  Quieting  Title,  p.  1040.  As  to  cancella- 
tion of  land  grants  made  by  Indians,  see  ante,  Indi.vns,  p.  641 ;  Public  Lands, 
p.  1012.  As  to  annulments  of  certificates  of  naturalization  for  fraud,  see  ante, 
Naturalization,  p.  911. 

I.  Rescission  and  Cancellation. 

B.  Grounds  for  Relief — 3.    Fraud. — See  note  18. 

C.  Conditions  of  Relief — 3.   Inadequacy  of  Remedy  at  Law. — See  note  30. 

D.  Nature  of  Relief  Afforded — 2.  Restoration  of  Original  Status — 
a.  /;/  General. — See  note  42. 

RESCISSORY  ACTIONS.— See  ante.  Limitation  of  Actions  and  Ad- 
verse Possession,  p.  828. 

RESERVATION. — As  to  Indian  reservations,   see  ante,  Indians,  p.  641. 

181,  51   L.  Ed.  1015,  27  S.  Ct.  646:  Vicks-  808-30.    Where    no    remedy    at    law    or 

burg   V.    Vicksburg   Waterworks    Co.,    206  remedy  ineffectual. — Where  a  waterworks 

U.  S.  496,  51  L.  Kd.  1155,  27  S.  Ct.  762.  company  breaches  its  contract  with  a  mu- 

798-32.     The   court   does   not   usurp    the  nicipality  to  furnish  a  continuous  adequate 

province    of   the    jury   in    rendering   judg-  supply    of   wholesome    water,    the   mumci- 

ment    upon   the    pleadings,   which    present  pality  has   the   right   to  invoke  the   aid   of 

the  questions  whether,  upon. the  facts  ap-  a  court  of  equity  to  enforce  its  rescission 

pearing   in   certain   judgments   pleaded    as  of  the   contract,   since   the   remedy  at  law 

res  judicata  or  averred  in  the  answer,  the  by  an  action  for  damages  is  wholly  inad- 

defendants   were,    as    a   matter   of   law,   in  equate.      Columbus    v.    Mercantile    Trust, 

privity  with  the  complainants  in  the  cause  etc.,  Co.,  218  U.  S.  645,  54  L.  Ed.  119.3,  31 

in    which    the    judgments    were    rendered,  S.     Ct.    105,   reversing    decree    Mercantile 

or  whether  these  judgments  could  be  col-  Trust     &     Deposit     Co.     of    Baltimore    v. 

laterally  attacked  for  the  alleged  insanity  City  of  Columbus  (C.  C.  1908)  161  F.  135. 
of  the  defendant  when  entered.     Souffront  811-42.    New    contract    for    parties.— A 

V.    La    Compagnie    Des    Sucreries,    217    U.  decree   which    in   substance   avoids   a   sub- 

S.  475,  54  L.  Ed.  846,  30  S.  Ct.  608.  sequent    conveyance    to    a    mortgagee    as 

804-18.         Fraud— In       general.— Equity  obtained  by  fraud,  thus  leaving  the  origi- 

will  set  aside  a  conveyance  l)y  which  the  ^^1   mortgage   valid   and   binding,   and   or- 

grantee,    by    means    of   fraud,    oppression,  ^ers     an     accounting     by     the     fraudulent 

and    undue   intluence    acquired    in     settle-  o-rantee   as   a   mortgagee   in  possession,   is 

ment    or    a  debt    a    tract    of    land    of    far  \.^^^   ^^^^   ^^   the    objection   that   it   makes 

greater    value    than    the    amount  of    such  ^    ^^^    contract    for    the    parties.      Judg- 

debt.      Judgment      (1907),    92    P.    250,     19  j-^ent     (1907)     92   P.  250,   19    Okl.   525,    af- 

Okl.  525.  affirmed.     Wagg  v.  Herbert,  215  firmed.     Wagg  v.   Herbert.  215  U.   S.  546, 

U.  vS.  546.  54  L.  Ed.  321,  30  S    Ct.  218.  See,  5^  t     VA    39^30  S    Ct    "18 

ako,    ante,    FRAUD    AND    DECEIT,    p. '  ' 

597. 

1069 


835-836  RETURN  ON  PROCESS.  Vol.  X. 

RES  GEST^ffi. — See  the  title  Res  Gest^,  vol.  1.0,  p.  829,  and  references 
there  given. 

RESIDENCE. — See  references  under  Re;sidence — Resident,  vol.  10,  p.  834. 

RESIDUARY  CLAUSE.— See  post.  Wills. 

RESIDUARY  INTEREST.— See  ante,  Fraudulent  and  Voluntary  Con- 

VLYANCES,  p.   600. 

RES  IPSA  LOQUITUR.— See  ante,  Negligence,  p.  920. 

RES  JUDICATA.— See  ante,  Res  Adjudicata,  p.  1065. 

RESTITUTION. — See  references  under  Restitution,  vol.  10,  p.  834.  And 
see  ante,  Banks  and  Banking,  p.  184. 

RESTRAINING  ORDERS.— See  ante.  Injunctions,  p.  .657;  Judicial 
Sales,  p.  812. 

RESTRAINT  OF  TRADE.— See  the  title  Restraint  of  Trade,  vol.  10,  p. 
835,  and  references  there  given. 

RESTRAINT  ON  ALIENATION. 

CROSS  REFERENCES. 

See  Restraint  on  Alienation,  vol.  10,  p.  836,  and  references  there  given. 
In  addition,  see  post,  Taxation. 

As  to  restrictions  upon  the  alienation  of  lands  allotted  to  Indians,  see  ante, 
Indians,  p.  641. 

General  Restraint   upon   Alienation   of  Personal   Property   Generally 

Void. — The  right  of  alienation  is  one  of  the  essential  incidents  of  a  right  of 
general  property  in  movables,  and  restraints  upon  alienation  have  been  gen- 
erally regarded  as  obnoxious  to  public  policy,  which  is  best  subserved  by  great 
freedom  of  traffic  in  such  things  as  pass  from  hand  to  hand.  General  restraint 
in  the  alienation  of  articles,  things,  chattels,  except  when  a  very  special  kind  of 
property  is  involved,  such  as  a  slave  or  an  heirloom,  have  been  generally  held 
void.-^ 

RETAIL.— See  note  a. 

RETURN. — See  ante,  Bail  and  Recognizance,  p.  166;  Executions,  p.  563; 
post.  Summons  and  Process. 

RETURN  NIHIL.— See  ante.  Bail  and  Recognizance,  p.  166. 
RETURN  ON  PROCESS.— See  ante.  Judicial   Sales,  p.  812. 

_  835-2a.     General  restraint  upon   aliena-  and   the   other   to   a  particular   class;   one 

tion  of  personal  property  generally  void.  within  the  state,  the  other  without.     From 

— Miles  }kledical  Co.  t'.  Park  &  Sons  Co.,  time  out  of  mind  it  has  been  the  custom 

220  U.  S.  373,  404,  55  L.  Ed.  502,  31  S.  Ct.  of    congress    to    impose    a    special    license 

^'''6.  _  tax  upon  wholesale  dealers  dififerent  from 

836-a.  Retail  and  wholesale  dealers  dis-  that  imposed  upon  retail  dealers.     A  like 

tinguished. — "In  Cook  v.  Marshall  County,  distinction    is    observed    between   brewers 

196  U.  3.  261,  268,  49  L.  Ed.  471,  which  in-  and   rectifiers,   wholesale    and   retail   deal- 

volved  the  validity  of  a  cigarette  tax  law  ers  in  leaf  tobacco  and  liquors,  manufac- 

that   made   a  distinction  between  jobbers  turers    of   tobacco    and    manufacturers    of 

and    wholesale    dealers    in    cigarettes,    the  cigars,    as    well    as    peddlers    of    tobacco. 

co_urt_  said:  'There  is  a  clear  distinction  in  It    may    be    difficult    to    distinguish    these 

principle     between     persons     engaged     in  several  classes  in  principle,  but  the  power 

selling    cigarettes    generally    or    at    retail,  of   congress    to   make    this    discrimination 

and   those   engaged   in   selling   by   whole-  has    not,    we    believe,    been    questioned.' " 

sale  to  ciistomers  without  the  state.    They  Southwestern  Oil  Co.  v.  Texas,  217  U.  S. 

are     two     entirely     distinct     occupations.  114,  125.  54  L.  Ed.  688,  30  S.  Ct.  496.     See 

One    sells    at    retail,    and    the    other    at  ante,  CONSTITUTIONAL  LAW,  p.  264; 

wholesale,    one    to    the    public    generally,  DUE  PROCESS  OF  LAW,  p.  475. 

1070 


Vol.  X.  REVENUE  LAWS. 


REVENUE  LAWS. 

II.  Definitions  and  Distinctions,    1072. 

A.  Definitions,  1072. 

4.  Duties  and  Imposts,  1072. 

9.  ^lanufactures  and  [Manufactured  Articles,  1072. 
10.  Excise  Tax  or  Duty,  1072. 
12.  Country,  1073. 

B.  Distinctions,  1073. 

III.  Constitutionality  of  Acts  Relating  to  Revenue,   1073. 
A.  Constitutional  Limitations  of  the  Taxing  Power,  1073. 

V.  Customs  Duties,   1073. 

A.  Custom  Laws  Contemplate  Foreign  Countries  Only,   1073. 

4.  Status  of  the  Insular  Possessions,  1073. 

b.  After  Ratification  of  Treaty  of  Peace,  1073. 

C.  Rules  for  Classification  of  Merchandise,  1073. 

1.  In  General,  1073. 

2.  Similitude  Clause,  1073. 

c.  [Meaning  of  Words  "of   Similar  Description,"    1073. 
h.  Administrative  Classification,   1074. 

D.  The  Schedules,  1074. 

5.  Schedule  C — Aletals  and  [Manufactures  of,  1074. 

g.  Articles  or  Wares  Not  Specially  Provided  for,  1074. 
8.  Schedule  F — Tobacco  and  Manufactures  of,  1074. 

f.  Unmanufactured  Tobacco,   1074. 

10.  Schedule  H — Spirits,  Wines  and  Other  Beverages,  1074. 

d.  Still  Wines,  1074. 

12.  Schedule  J — Flax,  Hemp  and  Jute  and  Manufactures  of,  1075. 

g.  Trimmings,  1075. 

16.  Schedule  N — Sundries,  1075. 

f.  Paintings  and  Sculptures,  1075. 
j.  Pearls  and  Precious  Stones,  1075. 
k.  Waste,  1075. 

E.  Commercial  Treaties,   1075. 

2.  Reciprocity  Treaties,  1075. 
H.  Levy,  Collection  and  Payment  of  Duties,  1076. 
8.  Liquidation  and  Payment  of  Duties,  1076. 

c.  Payment  and  Discharge  of  Duties,  1076. 

(8)  Action  by  United  States  to  Recover  Duties,  1076. 
M.  Drawback,  1076. 

2.  Definitions  and  Distinctions,  1076. 

d.  "Manufacture"  Defined,  1076. 

6.  Drawback  on   Articles   Alanufactured    from   Imported   [Materials, 

1077. 
a.  In  General,  1077. 
N.  Violation  of  Customs  Laws,  1077. 

8.  Violation  of  CustomiS  Laws  Punishable  Criminally,  1077. 
c3^.   False  and   Fraudulent  Entries,    1077. 

VI.  Internal  Revenue,  1077. 

D.  Property  Subject  to  Tax,  1077. 
1.  Oleomargarine,  1077. 

1071 


860-861  REVENUE  LAWS.  Vol.  X. 

D>^.  Corporation  Tax,  1077. 

1.  In  General,  1077. 

2.  Constitutionality  of  Act,  1078. 

3.  Corporations  Subject  to  the  Tax,  1080. 

a.  Must  Be  Organized  under  Some  Statute,  1080. 

b.  Must  Be  "Engaged  in  Business,"  1080. 

(1)  In  General,  1080. 

(2)  Particular  Corporations  Considered,  1080. 

(a)  Real  Estate  Corporations,  1080. 

(b)  Corporation  Owning  and  Leasing  Taxicabs,   1081. 

c.  Public  Service  Corporations,  1081. 

d.  State  Agencies,  1081. 

O.  Payment  of  Internal  Revenue  Taxes,  1081. 

4.  Lien  !or  Unpaid  Taxes,  1081. 

d.  Enforcement  of  Lien,  1081. 
R.  Action  by  United  States  to  Recover  Tax,  1081. 

1.  Form  of  Action,  1081. 
U.  Violation  of  Internal  Revenue  Laws,  1082. 

3.  Refusal   to  Allow   Officers   to   Enter  and   Examine  Articles   Sub- 

ject to  Taxation,  1082. 

4.  Penalties  and  Forfeitures  Incurred  by  Dealers  in  Oleomargarine, 

1082. 
5^.  Selling   Packages    Containing    "Anything   Else"    than    the    Con- 
tents When  Stamped,    1082. 

IX.  Stamp  Taxes,  1083. 

P.  Action  by  L^nited  States  to  Recover  Tax,  1083. 
O.  Validating  L^nstamped  Instruments,   1083. 

CROSS  REFERENCES. 

See  the  title  Revenue  Laws,  vol.  10,  p.  857,  and  references  there  given. 

In  addition,  see  ante.  Appeal  and  Error,  p.  34 ;  Debt,  the  Action  of,  p.  457 ; 
Estoppel,  p.  553;  post.  Succession  Taxes;  Taxation;  United  States. 

As  to  review  "by  the  federal  supreme  court  of  judgments  and  decrees  of  the  cir- 
cuit court  of  appeals  in  revenue  cases,  see  ante,  Appeal  and  Error,  p.  34.  As 
to  taxation  of  outstanding  circulation  of  national  banks,  see  post,  Taxation.  As 
to  interpretation  and  construction  of  revenue  laws,  see  post.  Statutes.  As  to 
the  delegation  of  power  to  prescribe  rules  and  regulations  for  the  enforcement 
of  revenue  laws,  see  ante.  Constitutional  Law%  p.  264. 

II.     Definitions   and  Distinctions. 

A.  Definitions — 4.  Duties  and  Imposts. — Duties  and  imposts  are  terms 
commonly  applied  to  levies  made  by  governments  on  the  importation  or  exporta- 
tion of  commodities. ^^^'^ 

9.  Manufactures  and  Manufactured  Articles. — See  note  13. 

10.  Excise  Tax  or  Duty. — See  note  20. 

860-lOa.    Duties    and    imposts.— Flint    v.  Tracy  Co.,  220  U.  S.  107,  55  L.  Ed.  389,  31 

Stone   iracy  ^^o.,  ^i;u   u.  b.  1U(,  55  L,.  ti^c.  vS.   Ct.  342,  citing  Cooley,  Const.  Lim.  7th 

389.  31   S.   Ct.  342.  Ed.   680. 

860-13.  See  post,  "  'Manufacture'  De-  "It  is  unnecessary  to  enter  upon  an  ex- 
fined,"  V,  M,  2,   d.  tended      consideration     of     the      technical 

861-20.      Excise    tax    or    duty    defined. —  meaning  of  the  term  'excise.'     It  has  been 

Excises    are    "taxes    laid    upon    the    manu-  the    subject    matter   of    considerable    dis- 

facture,  sale,  or  consumption  of  commod-  cussion;    the   terms    duties,    imposts,    and 

ities    within    the    country,    upon    licenses  excises   are    generally'  treated   as   embrac- 

to   pursue    certain    occupations,    and    upon  mg  the  indire':t  forms  .  t  'axation  contem- 

corporate     privileges."       Flint     v.      Stone  plated     by     the     constitution."       Flint     v. 

1072 


Vol.  X. 


REVENUE  LAWS. 


862-870 


12.  Country. — In  the  absence  of  some  qualifying  phrase  the  word  "country," 
in  revenue  laws  of  the  United  States,  has  always  been  construed  to  embrace  all 
the  possessions  of  a  foreign  state,  however  widely  separated,  which  are  subject 
to  the  same  supreme  executive  and  legislative  control. -^^ 

B.  Distinctions. — The  word  "import"  is  correlative  of  the  word  "export."--'' 

III.    Constitutionality  of  Acts  Relating  to  Revenue. 

See  note  22). 

A.     Constitutional  Limitations  of  the   Taxing  Power. — See  note  24. 

V.    Customs  Duties. 

A.   Custom  Laws  Contemplate  Foreign  Countries  Only — 4.    Status  op 

THi;  Insular  Possessions — b.  After  Ratification  of  Treaty  of  Peace. — Mer- 
chandise imported  into  Cuba  from  the  United  States  by  an  American 
citizen  during  the  military  occupation  of  the  island,  between  Alarch  31,  1900,  and 
May  20,  1902,  was  not  exempt  from  the  payment  of  duties  imposed  and  collected 
by  the  military  government  for  necessary  governmental  purposes  incident  to  the 
occupation  of  Cuba  by  the  United  States.'*"'^ 

C.  Rules  for  Classification  of  Merchandise — 1.  In  General. — See  note 
57a. 

2.  Similitude  Clause — c.  Meaning  of  JJ^ords  "of  Similar  Descril^tion." — 
See  note  67. 


Stone  Tracy  Co.,  220  U.  S.  107,  55  L.  Ed. 
389,  31  S.  Ct.  342,  citing  Pollock  v.  Farm- 
ers' Loan,  etc.,  Co.,  157  U.  S.  429,  39  L. 
Ed.  759.  15  S.  Ct.  673;  S.  C,  158  U.  S.  601, 
."^9  L.  Ed.  1108,  15  S.  Ct.  912;  Thoma'^  7\ 
United  States,  192  U.  S.  363,  48  L.  Ed. 
481.  24  S.  Ct.  305. 

862-21a.  "Country."— Faber  z\  United 
States,  221  U.  S.  G49,  55  L.  Ed.  897,  31  S. 
Ct.  659,  citing  Stairs  z'.  Peaslee,  18  EIow. 
521,   526,   15   L.   Ed.   471. 

862-22a.  "Import"  and  "export." — 
Faber  z:  United  States,  221  U.  S.  649,  55 
L.  Ed.  897,  31   S.   Ct.  659. 

862-23.  Constitutionality. — See  nost, 
"Constitutionality  of  Act,"  VT,  DL',  2. 

862-24.  Constitutional  limitations  of  the 
taxing  power. — The  constitution  contains 
only  two  limitations  on  the  right  of  con- 
gress to  levy  excise  taxes;  they  must  be 
levied  for  the  public  welfare,  and  are  re- 
quired to  be  uniform  throughout  the 
United  States.  Flint  v.  Stone  Tracy  Co., 
220  U.  S.  107,  55  L.  Ed.  389,  31  S.  Ct.  342, 
citing  License  Tax  Cases,  5  Wall.  462, 
471.  18  L.  Ed.  497.  See  post.  TAXA- 
TION. 

866-47a.  Merchandise  imported  into 
Cuba.— Judgment  (1905)  40  Ct.  CI.  495, 
affirmed.  Galban  &  Co.  z'.  United  States, 
207  U.   S.  579,  52  L.   Ed.  349,  28   S.   Ct.  254. 

868-57a.  Rules  for  classification. — The 
rule  is  well  established  that  "in  order  to 
prodtice  uniformity  in  the  imposition  of 
duties,  the  dutial:)le  classification  of  ar- 
ticles imported  mtist  l^e  ascertained  by  an 
examination  of  the  imoorted  article  it- 
self, in  the  'condition  in  which  it  is  im- 
ported. This,  of  course,  does  not  mean 
that  a  prescribed  rate  of  duty  can  be  es- 


caped by  resort  to  disguise  or  artifice. 
When  it  is  found  that  the  article  imported 
is  in  fact  the  article  described  in  a  partic- 
ular paragraph  of  the  tariff  act,  an  effort 
to  make  it  appear  otherwise  is  simply  a 
fraud  on  the  revenue,  and  can  not  be 
permitted  to  succeed.  But  when  the  ar- 
ticle imported  is  not  the  article  described 
as  dutiable  at  a  specified  rate,  it  does  not 
become  dutialile  under  the  descrintion 
because  it  has  been  manufactured  or 
prepared  for  the  express  purpose  of  be- 
ing imported  at  a  lower  rate."  United 
States  f.  Citroen,  223  U.  S.  407,  56  L.  Ed. 
486,  32  S.  Ct.  259,  citing  Worthington  v. 
Robbins,  139  U.  S.  337,  341.  35  L.  Ed.  181, 
11  S.  Ct.  581;  Dwight  v.  Merritt,  140  U. 
S.  213,  219,  35  L.  Ed.  450,  11  S.  Ct.  768; 
United  States  v.  Schoverling,  146  U.  S. 
76,  82,  36  L.  Ed.  893,  13  S.  Ct.  24;  United 
States  V.  Irwin  (C.  C.  A.  2d  C.)  24  C.  C. 
A.  349,  45  U.  S.  App.  746,  78  Fed.  799,  802; 
Falk  V.  Robertson,  137  U.  S.  225.  232,  34 
L.  Ed.  645,  11  S.  Ct.  41;  Merritt  z'.  Welsh. 
104  U.  S.  694,  704,  26  L.  Ed.  896;  See- 
l)erger  v.  Farwell,  139  U.  S.  608,  611,  35 
L.   Ed.  297,  11    S.  Ct.  650. 

870-67.  Goods  may  be  similar  without 
being  identical. — It  must  be  l)orne  in 
mind  that  the  statute  (Act  of  July  24, 
1897,  30  Stat,  at  L.  151,  chap.  11,  U.  S. 
Comp.  Stat.  1901.  p.  1626)  does  not  re- 
quire identity.  If  that  were  necessary 
tlie  statute  would  have  no  raison  d'etre. 
United  States  z:  Eckstein,  222  U.  S.  130, 
56  L.  Ed.  125,  32  S.  Ct.  65,  citing  United 
States  z'.  Roesseler  &  H.  Chemical  Co., 
70  C.  C.  A.  346,  137  Fed.  770. 

Imitation  horsehair. — The  requirement 
of   the    statute    (Act   of   July   24,    1897,    30 


12  U  S  Enc— 68 


lo: 


872-890 


RBVBNUB  LAWS. 


Vol.  X. 


h.  Administrative  Classification. — Where  a  certain  article  has  been  uniformly 
classified  under  the  similitude  clause  of  the  tarifif  act,  and  this  classification  has 
received  a  qualified  approval  by  congress  in  enacting  a  subsequent  tariff  act,  the 
article  will  be  held  to  be  properly  classified. ^^'^ 

D.  The  Schedules — 5.  Sche;duIvE  C — Metals  and  Manufactures  of — 
g.  Articles  or  Wares  Not  Specially  Provided  for. — A  bronze  bust  cast  by  artisans 
from  the  artist's  model  is  not  classifiable  as  statuary.'''^ 

8.  Schedule  F — Tobacco  and  Manufactures  of — f.  Unmanufactured  To- 
bacco.— See  note  25.  Congress,  in  using  the  words  "unmanufactured  tobacco," 
in  the  Tariff  Act  of  1897  (30  Stat,  at  L.  194,  169,  chap.  11,  U.  S.  Comp.  Stat. 
1901,  pp.  1679,  1648),  par.  215,  must  be  deemed  to  have  adopted  the  construction 
given  by  the  federal  supreme  court  to  those  words  as  used  in  an  earlier  tariff 
act.-5a 

10.  Schedule  H — Spirits,  Wines  and  Other  Beverages — d.  Still  Wines. — 
Tariff  Act  July  24,  1897,  c.  11,  §  1,  Schedule  H,  par.  296,  30  Stat.  174  (U.  S. 
Comp.  Stat.  1901,  p.  1654),  provides  that  the  duties  on  still  wines  shall  be,  "in 
bottles  or  jugs,  per  case  of  one  dozen  bottles  or  jugs,  containing  each  not  more 
than  one  quart  and  more  than  one  pint,  or  24  bottles  or  jugs  containing  each  not 
more  than  one  pint,  $1.60  per  case;  and  any  excess  beyond  these  quantities  found 
in  such  bottles  or  jugs  shall  be  subject  to  a  duty  of  5  cents  per  pint  or  fractional 
part  thereof. "^^'^ 


Stat,  at  L.  151,  chap.  11,  U.  S.  Comp.  Stat. 
1901,  p.  1626)  is  not  that  there  shall  be 
similarity  in  all  the  four  particulars  enu- 
merated in  §  7  (material,  quality,  texture 
and  use),  but  a  substantial  similarity  in 
one  of  those  particulars  may  be  adequate. 
Thus  imitation  horsehair  is  properly 
dutiable  under  the  similitude  clause  as 
being-  similar  to  cotton  yarns,  under  par- 
agraph 302,  being  similar  both  as  to 
material  and  use.  United  States  v.  Eck- 
stein, 222  U.  S.  130,  56  L.  Ed.  125,  32  S. 
Ct.  65. 

872-83a.  Administrative  classification. — 
Koniada  &  Co.  v.  United  States,  215  U. 
S.  392,  54  L.   Ed.  249,  30  S.   Ct.   136. 

The  Japanese  beverage  "sake"  is 
properly  classified  under  the  similitude 
clause  of  Tariff  Act  July  24,  189T,  c.  11, 
§  7,  30  Stat.  151  (U.  S.  Comp.  St.  1901,  p. 
1626),  as  similar  to  still  wine,  in  view  of 
the  uniform  customs  administrative  con- 
struction under  v>diich,  on  a  protest  by 
an  importer  in  1894  against  classification 
by  similitude  to  distilled  liquor,  sake  was 
classified  by  similitude  to  still  wine,  which 
ruling  has  uniformly  been  followed,  and 
has  received  at  least  a  qualified  approval 
by  congress  in  enacting  such  tariff  act 
without  modifying  the  provisions  of  the 
earlier  act  upon  which  such  ruling  was 
based.  Komada  &  Co.  v.  United  States, 
215  U.  S.  392,  54  L.  Ed.  249,  30  S.  Ct.  136. 
See,  generally,  post,   STATUTES. 

886-7a.  A  bronze  bust  cast  by  artisans 
from  the  artist's  model  is  dutiable,  upon 
importation  from  France,  at  45  per  cent 
ad  valorem,  under  the  Tariff  Act  of  1897, 
par.  193,  which  covers  articles  or  wares 
not  specially  provided  for  in  the  act,  com- 
posed   wholly    or    in    part    of    metal,    and 


whether  partly  or  wholly  manufactured, 
and  is  not  classifiable  as  statuary,  under 
the  coinmercial  reciprocal  agreement  with 
France,  negotiated  in  accordance  with, 
and  under  the  authority  contained  in  §  3 
of  that  act,  to  make  reciprocal  agree- 
ments with  reference,  among  other  ar- 
ticles, to  "paintings  in  oil  or  water  colors, 
pastels,  pen  and  ink  drawings,  and  statu- 
ary," since  the  Tariff  Act  defines  statuary 
as  including  only  such  as  is  cut,  carved, 
or  otherwise  wrought  by  hand  from  a 
solid  block  of  marble,  stone,  or  alabaster, 
or  from  metal,  and  such  as  is  the  profes- 
sional production  of  a  statuary  or  sculp- 
tor. Altman  &  Co.  v.  United  States,  224 
U.  S.  583,  56  L.  Ed.  894,  32  S.  Ct.  593.  See 
post,  "Reciprocal  Agreement  with  France," 
V,  E,  2,  a. 

889-25.  Tobacco  sweepings  or  scrap 
used  in  the  manufacture  of  stogies  and 
cigarettes  are  dutiable  at  55  cents  a 
pound,  under  the  Tariff  Act  of  1897,  par. 
215,  as  unmanufactured  tobacco,  and  not 
at  ten  per  cent  ad  valorem  under  para- 
graph 463,  as  "waste  not  specially  pro- 
vided lor  in  this  aci.'"  Latimer  %•.  United 
States,  223  U.  S.  501,  56  L.  Ed.  526,  32  S. 
Ct.  242. 

889-25a.  "Unmanufactured  tobacco." — 
Latimer  v.  United  States,  223  U.  S.  501, 
56  L.  Ed.  526,  32  S.  Ct.  242.  See  See- 
berger  v.  Castro,  153  U.  S.  32,  38  L.  Ed. 
624,  14  S.  Ct.  766. 

890-38a.  Still  wines.— United  States  v. 
Cerecedo  Hermanos  Y  Compania,  209  U. 
S.  337,  52  L.   Ed.  821,  28   S.   Ct.   532._ 

This  paragraph  separates  s.till  wines  in 
bottles  into  three  classes  and  fixes  a  spe- 
cific rate  of  duty  on  each  as  follows: 
"(a)    Bottles    'containing    each    not    more 


1074 


Vol.  X. 


RBJ'BNUB  LAWS. 


891-900 


12.  Schedule  J — Flax,  Hemp  and  Jute  and  Manufactures  of — g.  Trim- 
mings.— Narrow  woven  cotton  strips  bearing  "featherstitch"  or  "herringbone" 
ornamentation  are  dutiable  as  cotton  braids,  and  not  as  "bindings"  or  as  "tapes. "^-'^ 

16.    Schedule  N — Sundries — f.  Paintings  and  Sculptures. — See  note  3. 

j.  Pearls  and  Precious  Stones. — Loose  drilled  pearls,  unset  and  unstrung,  how- 
ever carefully  matched  or  desirable  for  a  necklace,  are  dutiable  at  10  per  cent  ad 
valorem  under  the  Tariff  Act  of  July  24,  1897  (30  Stat,  at  L.  151,  192,  chap.  11, 
U.  S.  Comp.  Stat.  1901,  pp.  1626,  1676),  par.  436,  as  "pearls  in  their  natural  state, 
not  strung  or  set,"  and  are  not  classifiable  by  similitude  as  jewelry,  including 
"pearls  set  or  strung,"  dutiable  under  par.  434  at  60  per  cent  ad  valorem,  because 
at  some  time,  or  from  time  to  time  previous  to  importation,  such  pearls  had  been 
strung  temporarily  for  purposes  of  display.'^'' 

k.  Waste. — The  word  "waste,"  in  this  schedule  (Act  of  1909)  generally  refers 
to  remnants  and  by-products  of  small  value  that  have  not  the  quality  or  utility 
either  of  the  finished  product  or  the  raw  material. ^'^ 

E.  Commercial  Treaties — 2.  Reciprocity  Treaties. — Reciprocal  Agree- 
ment with  France. — Under  the  commercial  reciprocal  agreement  with  France 
(30  Stat,  at  L.  1774),  which  was  negotiated  under  the  authority  contained  in  §  30 
of  the  Tarifif  Act  of  1897,  it  is  provided  that  "paintings  in  oil  or  water  colors, 
pastels,  pen-and-ink  drawings,  and  statuaries  shall  be  admitted  into  the  United 
States  at  15  per  centum  ad  valorem. "^^^ 


than  one  pint,'  which  are  to  be  assessed 
as  full  pints  at  $1.60  per  24  bottles,  or  at 
the  rate  of  63^  cents  per  pint;  (b)  bottles 
'containing  each  not  more  than  one  quart 
and  more  than  one  pint,'  whicli  are  to  be 
assessed  as  full  quarts  at  $1.60  per  dozen 
bottles;  that  is.  at  the  same  rate  of  67^ 
cents  per  pint;  and  (c)  bottles  containing 
'any  excess  beyond  these  quantities,' 
which  are  to  be  assessed  at  the  rate  of 
$1.60  per  dozen,  plus  5  cents  per  pint  or 
fractional  pint  on  the  excess  over  a  quart 
contained  in  each  bottle.'"  United  States 
V.  Cerecedo  Hermanos  Y  Compania,  209 
U.    S.   337,   .52   L.    Ed.   821,  28   S.   Ct.   532. 

Wines  imported  in  cases  of  24  bottles, 
each  bottle  containing  more  than  one  pint 
and  less  than  one  quart,  are  dutiable  at 
$1.60  per  dozen  bottles,  under  Tariff  Act 
July  24,  1897,  c.  11.  §  1,  Schedule  H,  par. 
296,  30  Stat.  174  (U.  S.  Comp.  St.  1901, 
p.  1654),  providing  that  the  duties  shall 
be,  "in  bottles  or  jugs,  per  case  of  one 
dozen  bottles  or  jugs,  containing  each 
not  more  than  one  quart  and  more  than 
one  pint,  or  24  bottles  or  jugs  containing 
each  not  more  than  one  pint,  $1.60  per 
case;  and  any  excess  beyond  these  quanti- 
ties found  in  such  bottles  or  jugs  shall  b'e 
subject  to  a  duty  of  5  cents  per  pint  or 
fractional  part  thereof."  United  States 
V.  Cerecedo  Hermanos  Y  Compania,  209 
U.  S.  337,  52  L.  Ed.  821,  28  S.  Ct.  532. 

%'^^  "13.  Trimmings.— United  States  v. 
Baruch,  223  U.  S.  191,  56  L.  Ed.  399,  32 
S.  Ct.  306. 

Narrow  woven  cotton  strips  bearing 
"featherstitch"  or  "herringbone'"  orna- 
mentation, used  largely  for  binding  seams, 
but  commercially  known  as  "featherstitch 
braids"  at  and  prior  to  the  enactment  of 


the  Tariff  Act  of  July  24,  1897  (30  Stat, 
at  L.  181,  chap.  11,  U.  S.  Comp,  Stat.  1901, 
p.  1662),  which  shifted  braids  from  tlie 
lower  duty  of  the  notions  schedule,  para- 
graph 320,  to  the  higher  dutj^  of  the  trim- 
mings schedule,  paragraph  339,  without 
any  change  of  phraseology  to  indicate 
that  it  was  the  purpose  to  depart  from 
the  settled  commercial  meaning  of  the 
word  "braids,"  must  be  deemed  dutiable 
at  60  per  cent  under  the  trimmings  sched- 
ule, as  cotton  braids,  and  not  at  45  per 
cent  under  the  notions  schedule,  as  "bind- 
ings" or  as  "tapes;"'  especially  in  view  of 
the  settled  administrative  construction 
to  such  effect.  United  States  -v.  Baruch, 
223  U.   S.  191,   56  L.   Ed.  399,  32   S.   Ct.  306. 

896-3.  Definition  of  statuary.— In  §  3 
of  the  Tariff'  Act  of  1897,  the  term  "statu- 
ary"' is  defined  as  follows:  "The  term 
'statuary,'  as  used  in  this  act,  shall  be 
understood  to  include  only  such  statuary 
as  is  cut,  carved,  or  otherwise  wrought 
by  hand  from  a  solid  block  or  mass  of 
marble,  stone,  or  alabaster,  or  from 
metal,  and  as  is  the  professional  produc- 
tion of  a  statuary  or  sculptor  only."  Alt- 
man  &  Co.  V.  United  States,  224  U.  S. 
583,  56  U  Ed.  894,  32  S.  Ct.  593.  See 
ante,  "Articles  or  Wares  Not  Specially 
Provided  for,"  V,  D.  5,  g. 

897-8a.  Pearls  and  precious  stones. — 
United  States  v.  Citroen,  223  U.  S.  407, 
56    U    Ed.    486,   32    S.    Ct.    259. 

897-8b.  Waste. — Latimer  v.  United 
States,  223  U.  S.  501,  56  L.  Ed.  526,  32  S. 
Ct.  242,  following  Patton  v.  United  States. 
159  U.  S.  500,  503,  40  L.  Ed.  233,  16  S. 
Ct.    89. 

900-39a.  Reciprocal  agreement  with 
France. — Aliman   &  Co.  v.  United   States. 


lOi 


900-951 


RBVEXUB  LAWS. 


\o\.  X. 


Commercial  Convention  with  Cuba. — Whether  the  reduction  provided 
for  by  commercial  convention  with  Cuba,  is  Hmited  to  the  rates  of  duty  in  gen- 
eral tariff  acts  and  does  not  apply  to  special  rates  under  special  agreements  with 
other  countries,  is  an  open  question. ^•^'^ 

The  words  "other  country"  in  the  Cuban  treaty  were  used  according  to 
the  known  and  established  interpretation  and  did  not  refer  to  charges  on  ship- 
ments from  territories  belonging  to  the  United  States  and  hence  the  Philippines 
are  not  a  foreign  countrv  or  "another  country'"  within  the  meaning  of  the  Cuban 
treaty  of  1903.-"^- 

H.  Levy,  Collection  and  Payment  of  Duties — 8.  Liquidation  and  Pay- 
ment OF  Duties — c.  Payment  and  Discharge  of  Duties — (8)  Action  b\  United 
States  to  Recover  Duties. — See  note  49. 

M.  Drawback — 2.  Definitions  and  Distinctions — d.  "Manufacture" 
Defined. — The  word  "manufacture"  (within  the  meaning  of  Act  Oct.  1,  1890,  c. 
1244,  §  25,  26  Stat.  617,  allowing  a  drawback  of  duties  on  such  articles  when  ex- 
ported), must  be  understood  in  the  sense  that  a  new  article  is  produced  of  which 
the  imported  material  constitutes  an  ingredient  or  part.  There  must  be  transfor- 
mation; a  new  and  different  article  must  emerge  "having  a  distinctive  name, 
character  and  use."^'^^ 


224  U.  S.  583,  .56  L.  Ed.  894,  32  S.  Ct. 
593.  See  ante,  "Articles  or  Wares  Not 
Specially  Provided  for,"  V,  D,  5,  g.  As 
to  a  definition  of  the  word  "statuary."'  see 
ante,  "Paintinofs  and  Sculptures.''  V,  D, 
16,   f. 

900-39b.     Acts    covered   by   treaty. — Fa- 

ber  V.  United  States.  221  U.  S.  649,  55  L. 
Ed.  897,  31  S.  Ct  659,  citing  Whitney  v. 
Robertson,  124  U.  S.  190.  31  L.  Ed.  386,  8 
S.    Ct.    456. 

900-39C.  The  words  "other  country." — 
The  Philippine  Islands  are  not  "an- 
other country"  within  the  meaning  of 
the  provisions  of  the  commercial  con- 
vention with  Cuba  (Act  Dec.  17,  1903, 
art.  8,  33  Stat.  2136),  that  the  rates  of 
duty  granted  to  Cuba  by  that  treaty,  be- 
ing a  reduction  of  20  per  cent  from  the 
rates  prescribed  by  the  tariff  act  July 
24,  1897,  c.  11,  30  Stat.  151  (U.  S.  Comp. 
St.  1901,  p.  1626),  or  any  tariff  laws  sub- 
sequently enacted,  shall  continue  pref- 
erential in  respect  to  all  like  imports 
from  other  countries.  Faber  v.  United 
States,  221  U.  S.  649,  55  L.  Ed.  897,  31 
S.  Ct.  659,  affirming  judgment  (C.  C. 
1907),    157    F.    140. 

The  treaty  with  Cuba  of  1903  was 
signed  and  proclaimed  several  j^ears  after 
it  had  been  decided  in  Insular  cases  that 
Porto  Rico  and  the  Philippine  Islands 
are  not  foreign  countries  but  territorj-  of 
the  United  States,  subject  to  such  laws 
as  congress  might  enact  for  their  polit- 
ical and  fiscal  management,  and  within 
the  meaning  of  that  treaty  the  Philippines 
were  not  a  foreign  country  or  "another 
country."  Faber  v.  United  States,  221  U. 
S.  649,  55  L.  Ed.  897,  31  S.  Ct.  659,  citing 
Fourteen  Diamond  Rings  v.  United 
States,  183  U.  S.  176,  177.  46  L.  Ed.  138, 
22   S.    Ct.   59;    DeLima  v.    Bidwell,   182   U. 


S.  1,  45  L.  Ed.  1041,  21  S.  Ct.  743;  United 
States  i:  Heinszen  &  Co.,  206  U.  S.  370, 
51  L.  Ed.  1098,  27  S.  Ct.  742;  Dooley  v. 
United  States,  183  U.  S.  151,  46  L.  Ed. 
128,   22   S.    Ct.   62. 

In  the  light  of  new  legislation  and  in 
view  of  the  generally  accepted  interpre- 
tation of  the  word  "import,"  the  8th  ar- 
ticle of  the  treaty  of  1903,  with  Cuba,  can 
not  be  construed  to  have  been  intended 
to  give  Cuba  an  advantage  over  ship- 
ments of  merchandise  coming  into  the 
United  States  from  a  part  of  its  own 
territory.  Faber  v.  United  States.  221  U. 
S.    G49,    55    L.    Ed.    897,    31    S.    Ct.    659. 

928-49.  Action  by  United  States  to  re- 
cover duties. — At  common  law.  customs 
duties  were  recoverable  by  the  crown  bj' 
an  information  in  debt  or  an  exchequer 
information  in  the  nature  of  a  bill  in 
equity  for  discovery  and  account.  Tliese 
informations  rested  upon  the  general 
principle  "that  in  the  given  case  the 
common  law  or  the  statute  creates  a 
debt,  charge,  or  duty  in  the  party  per- 
sonally to  pay  the  duties  immediately 
upon  the  importation;  and  that,  there- 
fore, the  ordinary  remedies  lie  for  this, 
as  for  any  other  acknowledged  debt  due 
to  the  crown."  United  States  v.  Lyman, 
1  Mason,  p.  499.  See,  also,  Comyn's  Di- 
gest (Title  "Debt,"  A,  9);  Bunbury's  Re- 
ports, pD.  97.  223,  225.  262;  ;Meredith  v. 
United  States,  13  Pet.  486,  10  L.  Ed.  258; 
United  States  v.  Chamberlin.  219  U.  S. 
250,   258,   55   L.   Ed.   204,   31   S.   Ct.   155. 

951-18a.  "Manufacture"  defined. — An- 
heuser-Busch Brewing  Ass'n  v.  United 
States,  207  U.  S.  556,  52  L.  Ed.  336,  28 
S.  Ct.  204.  As  to  the  word  "manufac- 
ture," see  Hartranft  v.  Wiegmann,  121 
U.  S.  609,  30  L.  Ed.  1012,  7  S.  Ct.  1240. 
See,  also.  ante.  MAXUFACTURES, 
p.  850. 


1076 


Vol.  X. 


REVEXUE  LAWS. 


952-965 


6.  Drawback  ox  Articles  Manufactured  from  Imported  Materials — a. 
In  General. — See  note  2Z. 

N.  Violation  of  Customs  Laws — 8.  \^iolatiox  of  Customs  Laws  Pun- 
ishable Criminally — c]^.  False  and  Fraudulent  Entries. — Act  June  10.  1890. 
c.  407.  §  1,  26  Stat.  131  (U.  S.  Comp.  Stat.  1901.  p.  1886)  provides  for  the 
forfeiture  of  goods  or  their  value  where  "any  owner,  importer,  consignee, 
agent,  or  other  person"  shall  make  an  entry  by  means  of  false  and  fraudulent 
practices,  or  shall  be  guilty  of  any  unlaiwful  act  or  omission  whereby  the  United 
States  is  deprived  of  the  lawful  duties,  and  for  the  punishment  of  such  per- 
son by  fine  or  imprisonment  or  both.^*^*^ 

The  words  "other  person"  comprehend  an  employee  of  the  customs 
service  who  makes  and  returns  false  weights  in  connection  with  an  entry 
of  imported  merchandise ;  and  the  fact  that  such  an  employee  can  not  be  pun- 
ished in  all  respects  as  fully  as  an  owner,  in  that  he  had  no  goods  to  be  for- 
feited, is  immaterial.^ ^'^ 

VI.    Internal  Revenue. 

D.    Property  Subject  to  Tax — 1.    Oleomargarine. — See  note  27. 
D|.     Corporation   Tax — 1.     In    General. — See  U.    S.   Comp.   Stat.    Supp. 
1909.  p.  844.     See.  also,  ante.  Constitutional  Law,  p.  264;  post.  Taxation. 
Construction   of  Act — Excise   Tax. — An  excise  upon  the  carrying  on   or 


952-23.  Imported  corks  used  in  bot- 
tling beer  for  export  are  not  articles 
manufactured  from  imported  materials 
within  the  meaning  of  Act  Oct.  1,  1890, 
c.  1244.  §  25,  26  Stat.  617,  allowing  a 
drawback  of  duties  on  such  articles  when 
exported,  although  such  corks  were  sub- 
jected to  a  special  treatment  after  im- 
portation to  make  them  fit  for  the  pur- 
pose intended.  Judgment  (1906),  41  Ct. 
CI.  389,  affirmed.  Anheuser-Busch  Brew- 
ing Ass'n  V.  United  States,  207  U.  S.  556, 
52  L.  Ed.  336,  28  S.  Ct.  204,  following 
Schlitz  Brewing  Co.  v.  United  States.  181 
U.   S.   584,   45    L.   Ed.   1013.  21   S.   Ct.   740. 

Where  a  manufacturer  imports  cut 
corks  to  be  used  in  beer  bottles  and  later 
exports  the  bottled  beer  and  seeks  to  ob- 
tain a  drawback  under  §  25  of  the  Act 
of  October  1.  1890.  c.  1244.  26  Stat.  617, 
due  to  the  fact  that  the  corks  had  been 
subjected  to  a  special  process  to  make 
them  soft  and  were  therefore  manufac- 
tured articles  from  raw  material  im- 
ported, there  is  force  in  the  contention 
that  the  exportation  was  not  of  corks  or 
bottles,  but  of  beer.  Anheuser-Busch 
Brewing  Ass'n  f.  United  States,  207  U. 
S.   556,   52   L.    Ed.   336.   28   S.    Ct.   204. 

963-16a.  False  and  fraudulent  entries. 
— United  States  v.  Mescali.  215  U.  S.  26, 
54   L.   Ed.   77,   30   S.   Ct.   19. 

963-16b.  The  words  "other  person." — 
United  States  r.  Mescali,  215  U.  S.  26, 
54  L.  Ed.  77,  30  S.  Ct.  19,  reversing  (C. 
C),   164   Fed.   580. 

An  employee  in  the  customs  service  of 
the  United  States  who  makes  and  re- 
turns false  weights  in  connection  with  an 
entry  of  imported  merchandise  is  com- 
prehended  by   the    words    "other   person" 


in  the  provisions  of  the  customs  admin- 
istration act  (Act  June  10,  1890,  c.  407, 
§  1,  26  Stat.  131  [U.  S.  Comp.  St.  1901,  p. 
1886])  for  the  forfeiture  of  goods  or  their 
value  where  "any  owner,  importer,  con- 
signee, agent,  or  other  person"'  shall  make 
an  entrj'  by  means  of  false  and  fraudulent 
practices,  or  shall  be  guilty  of  any  im- 
lawful  act  or  omission  whereby  the 
United  States  is  deprived  of  the  lawful 
duties,  and  for  the  punishment  of  such 
person  bj'  fine  or  imprisonment  or  both. 
Order  (C.  C.  1908),  164  F.  580,  reversed. 
United  States  v.  Mescali.  215  U.  S.  26,  54 
L.  Ed.  77.  30  S.  Ct.  19,  following  United 
States  V.  Union  Supply  Co.,  215  U.  S.  50, 
54    L.    Ed.    87,    30    S.    Ct.    15. 

965-27.  Oleomargarine — What  is  arti- 
ficial coloration. — Oleomargarine  made  to 
look  like  butter  of  a  shade  of  yellow  by 
the  tise  of  one-half  of  1  per  cent  of 
palm  oil.  a  vegetable  oil  recognized  as  a 
possible  ingredient  bv  Act  Aug.  2.  1886, 
c.  840,  §  2,  24  Stat.  209  (U.  S.  Comp.  St. 
1901.  p.  2228).  is  not  "free  from  artificial 
coloration"  within  the  meaning  of  the 
proviso  in  §  8  of  that  act.  as  amended  by 
.Act  May  9.  1902,  c.  784.  §  3.  32  Stat.  194 
(U.  S.  Comp.  St.  Supp.  1909.  p.  864).  im- 
posing a  lesser  tax  on  oleomargarine 
when  free  from  artificial  coloration  that 
causes  it  to  look  like  butter  of  any  shade 
of  yellow,  although  the  addition  of  such 
palm  oil  may  give  the  product  a  slightly 
better  grain  of  texture,  and  a  slightly  bet- 
ter physiological  effect  upon  those  who 
eat  It.  where,  but  for  its  coloring  power, 
it  probably  would  not  have  been  used. 
Moxley  v.  Hertz.  216  U.  S.  344.  54  L.  Ed. 
510.  30  S.  Ct.  305,  following  Cliff  v. 
United  States,  195  U.  S.  159,  164.  49  L'. 
Ed.  139. 


107: 


966 


REVENUE  LAWS. 


Vol.  X 


the  doing  of  business  in  a  corporate  or  quasi  corporate  capacity  is  what  was 
imposed  by  the  act.^^a 

2.  Constitutionality  of*  Act. — The  tax  being  an  excise,  and  not  a  direct, 
tax  is  not  invalid  because  not  apportioned  among  the  several  states  according 
to  population. 2^'' 

Possibility  of  Destroying  Rights  of  the  States. — Nor  does  the  mere 
possibility  that  the  rights  of  the  several  states  to  create  corporations  may  be 
practically  destroyed  by  the  exercise  of  the  power  assumed  by  congress  invali- 
date the  act.^-'' 

Private  Corporations  Created  by  the  States. ^ — Nor  is  the  tax  invalid 
because  the  business  taxed  is  done  in  pursuance  of  the  authority  granted  by 
a  state,  in  the  creation  of  private  corporations.^-"^ 


966-32a.     Construction    of     tax— Excise 

tax.— Flint    V.    Stone    Tracy    Co.,    220    U. 

5.  107,  55  L.  Ed.  389,  31  S.  Ct.  342,  fol- 
lowing Spreckels  Sugar  Refin.  Co.  v.  Mc- 
Clain,  193  U.  S.  397,  48  L.  Ed.  496,  24  S. 
Ct.  376.  ^     , 

The  thing  taxed  is  not  the  mere  deal- 
ing in  merchandise,  in  which  the  actual 
transactions  may  be  the  same,  whether 
conducted  by  individuals  or  corporations, 
but  the  tax  is  laid  upon  the  privileges 
which  exist  in  conducting  business  with 
the  advantages  which  inhere  in  the  cor- 
porate capacity  of  those  taxed,  and  which 
are  not  enjoyed  by  private  firms  or  in- 
dividuals. These  advantages  are  ob- 
vious, and  have  led  to  the  formation  of 
such  companies  in  nearly  all  branches  of 
trade.  The  continuity  of  the  business, 
without  interruption  by  death  or  disso- 
lution, the  transfer  of  property  interests 
by  the  disposition  of  shares  of  stock,  the 
advantages  of  business  controlled  and 
managed  by  corporate  directors,  the  gen- 
eral absence  of  individual  liability,  these 
and  other  things  inhere  in  the  advantages 
of  business  thus  conducted,  which  do  not 
exist  when  the  same  business  is  con- 
ducted by  private  individuals  or  partner- 
ships. It  is  this  distinctive  privilege 
which  is  the  subject  of  taxation,  not  the 
mere  buying  or  selling  or  handling  of 
goods,  which  may  be  the  same,  whether 
done  by  corporations  or  individuals. 
Flint  V.  Stone  Tracy  Co.,  220  U.  S.  107, 
55    L.    Ed.    389,    31    S.    Ct.    342. 

9G6-32b.  Apportionment  among  states. 
—Flint  V.  Stone  Tracy  Co.,  220  U.  S.  107, 
55    L.    Ed.   389,   31    S.    Ct.   342. 

The  tax  measured  by  net  annual  in- 
come   imposed    by    Act    Aug.    5,    1909,    c. 

6,  §  38,  36  Stat.  .112  (U.  S.  Comp.  St. 
Supp  1909,  p.  844),  upon  the  carrying  on 
or  doing  of  business  in  a  corporate  _  or 
quasi  corporate  capacity,  being  an  excise, 
and  not  a  direct,  tax,  is  not  invalid  be- 
cause not  apportioned  among  the  several 
states  according  to  population.  Flint  v. 
Stone  Tracy  Co..  220  U.  S.  107,  55  L.  Ed. 
389.  31  S.  Ct.  342,  distinguishing  Pollock 
V.  Farmers'  Loan,  etc.,  Co.,  157  U.  S.  429, 
39  L.  Ed.  759,  15  S.  Ct.  673;  S.  C,  158  U. 


S.  601,  39  L.  Ed.  1108,  15  S.  Ct.  912,  and 
approving  Knowlton  v.  Moore,  178  U. 
S.  41,  44  L.  Ed.  969,  20  S.  Ct.  747; 
Spreckels  Sugar  Refin.  Co.  v.  McClain, 
192  U.  S.  397,  48  L-  Ed.  496,  24  S.  Ct.  376. 

A  tax  upon  the  business  done  in  a 
corporate  capacity  is  a  subject  matter  of 
the  tax  imposed  under  the  Act  Aug.  5, 
1909,  c.  6,  §  38,  36  Stat.  112  U.  S.  Comp. 
Stat.  Supp.  1909,  p.  844;  Pollock  v.  Farm- 
ers' Loan,  etc.,  Co.,  157  U.  S.  429,  39  L. 
Ed.  759,  15  S.  Ct.  673;  S.  C,  158  U.  S. 
001,  39  L.  Ed.  1108,  15  S.  Ct.  912,  con- 
strued the  tax  there  levied  as  direct  be- 
cause it  was  imposed  upon  property 
simply  because  of  its  ownership.  In  the 
present  case  the  tax  is  not  payable  un- 
less there  be  a  carrying  on  or  doing  of 
business  in  the  designated  capacity,  and 
this  is  made  the  occasion  for  the  tax 
measured  by  the  standard  prescribed.  The 
difference  between  the  acts  is  not  merel}'' 
nominal  but  rests  upon  substantial  dif- 
ferences between  the  mere  ownership  of 
property  and  the  actual  doing  of  busi- 
ness in  a  certain  way.  Flint  v.  Stone 
Tracy  Co.,  220  U.  S.  107,  55  L.  Ed.  389^ 
31    S.    Ct.    342. 

966-32C.  Possibility  of  destroying  rights 
of  states. — Flint  v.  Stone  Tracy  Co.,  220 
U.   S.  107,  55  L.   Ed.  389,  31  S.   Ct.  342. 

The  possibility  that  the  rights  of  the 
several  states  to  create  corporations  may 
practically  be  destroyed  by  the  exercise 
of  the  power  assumed  by  congress  in 
Act  Aug.  5,  1909,  c.  6,  §  38,  36  Stat.  112 
(U.  S.  Comp.  St.  Supp.  1909,  p.  844),  to 
impose  an  excise  upon  the  doing  or  the 
carrying  on  of  business  in  a  corporate  or 
quasi  corporate  capacity,  furnishes  no 
ground  for  judicial  interference  with  the 
tax.  Flint  v.  Stone  Tracy  Co.,  220  U. 
S.   107,   55   L.    Ed.   389,   31    S.   Ct.   342. 

966-32d.  Private  corporations  created 
by  the  states. — Flint  v.  Stone  Tracy  Co., 
220  U.  S.  107,  55  L.  Ed.  389,  31  S.  Ct.  342, 
citing  Veazie  Bank  v.  Fenno,  8  Wall. 
533,   19    L.   Ed.   482. 

When  the  constitution  was  framed, 
the  right  to  lay  excise  taxes  was  broadly 
conferred  upon  the  congress.  At  that 
time    very    few    corporations    existed.      If 


1078 


Vol.  X. 


REVENUE  LAWS. 


966 


Inequality  of  Application. — Nor  is  it  invalidated  by  inequality  of  applica- 
tion owing  to  different  local  conditions.^^e 

Exemptions. — The  act  is  not  invalidated  by  the  fact  that  certain  classes  of 
corporations  are  exempted. -^^^ 

Measuring  the  Excise. — The  act  is  not  invalidated  because  the  excise  im- 
posed is  measured  by  the  entire  net  income  from  all  sources,  although  a  part 
of  such  income  may  be  derived  from  property  in  itself  not  taxable  ;^^^  or  be- 
cause  in   measuring  the   net   annual   income   deduction   of   interest  payments   is 


the  mere  fact  of  state  incorporation,  ex- 
tending now  to  nearly  all  branches  of 
trade  and  industry,  could  withdraw  the 
legitimate  objects  of  federal  taxation 
from  the  exercise  of  the  pow.er  con- 
ferred, the  result  would  be  to  exclude 
the  national  government  from  many  ob- 
jects upon  which  indirect  taxes  could 
be  constitutionally  imposed.  Let  it  be 
supposed  that  a  group  of  individuals,  as 
partners,  were  carrying  on  a  business 
upon  which  congress  concluded  to  lay 
an  excise  tax.  If  it  be  true  that  the 
forming  of  a  state  corporation  would  de- 
feat this  purpose,  by  taking  the  neces- 
sary steps  required  by  the  state  law  to 
create  a  corporation  and  carrying  on  the 
business  under  rights  granted  by  a  state 
statute,  the  federal  tax  would  become  in- 
valid and  that  source  of  national  revenue 
be  destroyed,  except  as  to  the  business 
in  the  hands  of  individuals  or  partner- 
ships. It  can  not  be  supposed  that  it 
was  intended  that  it  should  be  within  the 
power  of  individuals  acting  under  state 
authority  to  thus  impair  and  limit  the 
exertion  of  authority  which  inay  be  es- 
sential to  national  existence.  Flint  v. 
Stone  Tracy  Co.,  320  U.  S.  107,  55  L.  Ed. 
389,    31    S.    Ct.    342. 

966-32e.  Inequality  of  application. — 
Flint  r.  Stone  Tracy  Co.,  220  U.  S.  107, 
55  L.   Ed.   389,   31   S.   Ct.  342. 

Inequality  of  application,  owing  to 
different  local  conditions,  does  not  in- 
validate the  excise  imposed  by  Act  Aug. 
5,  1909.  c.  6,  §  38-,  3G  Stat.  112  (U.  S. 
Comp.  St.  Supp.  1909,  p.  844),  upon  the 
doing  or  the  carrying  on  of  business  in 
a  corporate  or  quasi  corporate  capacity. 
Flint  z\  Stone  Tracy  Co.,  220  U.  S.  107, 
55  L.  Ed.  389,  31  S.  Ct.  342.  following 
Knowlton  v.  Moore,  178  U.  S.  41,  44  L. 
Ed.   969,   20   S.   Ct.   747. 

966-32f.  Exemptions. — Flint  v.  Stone 
Tracy  Co.,  220  U.  S.  107,  55  L.  Ed.  389,  31 

5.  Ct.  342. 

Exempting  corporations  whose  net 
annual  incomes  are  under  $5,000  from  the 
excise    imposed    by   Act    Aug.    5,    1909,    c. 

6.  §38,  36  Stat.  112(11.  S.Comp.  St.  Supp. 
1909,  p.  844),  upon  the  doing  or  the  carry- 
ing on  of  business  in  a  corporate  or 
quasi  corporate  capacity,  does  not  in- 
validate the  tax.  Flint  v.  Stone  Tracy 
Co.,  220  U.  S.  107,  55  L.  Ed.  389,  31  S. 
Ct.    342,    followine    Knowlton    v.    Moore, 


178  U.  S.  41,  44  L.  Ed.  969,  20  S.  Ct.  747; 
Magoun  v.  Illinois,  etc.,  Sav.  Bank,  170 
U.  S.  283,  293,  42  L.  Ed.  1037,  18  S.  Ct. 
594. 

Labor,  agricultural,  and  horticultural 
organizations,  fraternal  and  benevolent 
societies,  and  organizations  for  religious, 
charitable  or  educational  purposes,  could 
be  excepted  from  the  operation  of  the 
excise  imposed  by  Act  Aug.  5,  1909,  c.  6, 
§  38,  36  Stat.  112  (U.  S.  Comp.  St.  Supp. 
1909,  p.  844),  upon  the  doing  or  the  carry- 
ing on  of  business  in  a  corporate  or  quasi 
corporate  capacity,  without  invalidating 
ihe  tax.  Flint  v.  Sl(-nc  Tracy  Co.,  220 
U.   S.  107,  55   L.  Ed.  389,  31  S.  Ct.  342. 

Taxing  a  business  when  carried  on  by 
a  corporation,  and  exempting  a  similar 
lousiness  when  carried  on  by  a  partner- 
ship or  by  a  private  individual,  as  is  done 
i)y  Act  Aug.  5,  1909,  c.  6,  §  38,  36  Stat. 
112  (U.  S.  Comp.  St.  Supp.  1909,  p.  844), 
imposing  an  excise  upon  the  carrying  on 
or  the  doing  of  business  in  a  corporate 
or  quasi  corporate  capacity,  does  not  in-' 
validate  the  tax,  since  the  only  limitation 
upon  the  power  of  congress  is  uniformity 
in  laying  the  tax,  and  tins  is  a  geograph- 
ical uniformity,  which  does  not  re- 
quire the  equal  application  of  the  tax  to 
all  persons  or  corporations  who  may 
come  within  its  operation.  Flint  v.  Stone 
Tracy  Co.,  220  U.  S.  107,  55  L.  Ed.  389, 
31  S.  Ct.  342,  following  Knowlton  v. 
Moore,  178  U.  S.  41,  44  L.  Ed.  969,  20  S. 
Ct.    747. 

966-32g.  Measuring  the  excise. — Flint 
7'.  Stone  Tracy  Co.,  220  U.  S.  107,  55  L. 
Ed.    389,   31    S.    Ct.   342. 

Measuring  the  excise  imposed  by  Act 
.\ug.  5.  1909,  c.  6,  §  38.  36  Stat.  112  (U. 
S.  Comp.  St.  Supp.  1909,  p.  844),  upon 
the  carrying  on  or  the  doing  of  business 
in  a  corporate  or  quasi  corporate  ca- 
pacity by  the  entire  net  income  from  all 
sources,  does  not  invalidate  the  tax,  al- 
though a  part  of  such  income  may  be 
derived  from  propertv  in  itself  not  tax- 
able. Flint  V.  Stone"  Tracy  Co.,  220  U. 
S.  107,  55  L.  Ed.  389,  31  S.  Ct.  342.  dis- 
tinguishing Pollock  V.  Farmers'  Loan, 
etc..  Co.,  157  U.  S.  429.  39  L.  Ed.  759,  15 
S.  Ct.  673:  S.  C,  158  U.  S.  601,  39  L.  Ed. 
1108,  15  S.  Ct.  912:  Galveston,  etc.,  R. 
Co.  V.  Texas,  210  U.  S.  217,  52  L.  Ed. 
1031,  28  S.  Ct.  638:  Western  Union  Tel.' 
Co  V.  Coleman,  216  U.  S.  1,  54  L.  Ed.  355, 
.  30   S.    Ct.    190. 


1079 


966 


RBVBXUE  LAWS. 


Vol.  X. 


permitted  only  in  cases  of  interests  paid  by  banks  and  trust  companies  on  de- 
posits, and  interest  actually  paid  within  the  year  on  bonded  or  other  indebted- 
ness to  an  amount  not  exceeding  the  paid-up  capital  stock.32i>  ^^^  jg  ^.j^g  meas- 
tirement  of  the  net  corporate  income  from  all  sources  so  arbitrary  and  base- 
less as  to  fall  outside  of  the  authority  of  the  taxing  power. ^ 2* 

3.  Corporations  Subject  to  the  Tax — a.  Must  Be  Organized  under  Some 
Statute. — It  was  the  intention  of  congress  to  embrace  within  the  corporation 
tax  act  only  such  corporations  and  joint  stock  associations  as  are  organized 
under  some  statute  or  which  derived  from  that  source  some  quality  or  lienefit 
not  existing  at  the  common  law;-^^^  and  hence  real  estate  trusts  created  by 
deed  which  do  not  derive  any  benefit  from,  and  are  not  organized  under,  any 
statute  of  the  state,  and  which,  by  their  terms,  end  with  lives  in  being  and 
twenty  years  thereafter,  are  not  subject  to  the  excise  imposed  by  the  •act.-"^'^ 

b.    Must  Be  "Engaged  in  Business." — See  ante,  Doing  Business,  p.  471. 

(1)  In  General. — Under  the  terms  of  the  act  the  corporation,  joint  stock 
company,  association  or  insurance  company  must  be  engaged  in  business  in 
a  state  or  a  territory  of  the  United  States  or  in  Alaska  or  in  the  District  of 
Columbia.-^  2' 

(2)  Particular  Corporations  Considered — (a)  Real  Estate  Corporations. — 
Corporations  organized  for  and  actually  engaged  in  such  activities  as  leasing 
property,  collecting  rents,  managing  office  buildings,  making  investments  of 
profits,  or  leasing  ore  lands  and  collecting  royalties,  managing  wharves,  divid- 
ing profits,  and  in  some  cases  investing  the  surplus,  are  engaged  in  business 
within   the  meaning  of   the  act.^-™     But  a  corporation  organized   for  the  pur- 


966-32h.  Flint  z'.  Stone  Tracy  Co..  220 
U.   S.   107,  .55  L.   Ed.  389,  31  S.  Ct.  342. 

The  excise  measured  by  net  annual  in- 
come, imposed  by  Act  Aug.  5.  1909,  c.  6, 
§  38,  36  Stat.  312  (U.  S.  Comp.  St.  Supp. 
1909,  p.  844),  upon  the  doing  or  the  carry- 
ing on  of  business  in  a  corporate  or  quasi 
corporate  capacity,  is  not  invalid  because 
a  deduction  of  interest  payments  is  per- 
mitted only  in  case  of  interest  paid  by 
banks  and  trust  companies  on  deposits, 
and  interest  actually  paid  within  the  year 
on  bonded  or  othei  indebtedness  to  an 
amount  not  exceeding  the  paid  up  capital 
stock.  Flint  r.  Stone  Tracy  Co.,  220  U. 
S.  107,  55   L.   Ed.  389.  31   S.   Ct.  342. 

966-32i.  Flint  v.  Stone  Tracy  Co..  220 
U.   S.   107,   55   L.   Ed.   389,   31   S.   Ct.   342. 

The  measurement  by  the  net  corporate 
income  from  all  sources  of  the  excise 
imposed  by  Act  Aug.  5,  1909,  c.  6,  §  38, 
36  Stat.  112  (U.  S.  Comp.  St.  Supp.  1909, 
p.  844),  upon  the  doing  or  carrj'ing  on 
of  business  in  a  corporate  or  quasi  cor- 
porate capacity,  is  not  so  arbitrary  and 
baseless  as  to  fall  outside  of  the  authority 
of  the  taxing  power.  Flint  z\  Stone  Tracv 
Co.,  220  U.  S.  107,  55  L.  Ed.  389,  31  S. 
Ct.  342.  distinguishing  Spreckels  Sugar 
Refin.  Co.  r.  McClain,  192  U.  S.  397,  48 
L.    Ed.   496.   24   S.    Ct.    376. 

966-32J.  Must  be  organized  under  some 
statute.— Eliot  ?■.  Freeman,  220  U.  S.  178, 
55  L.  Ed.  424,  31  S.  Ct.  360,  citing  Flint 
V.  Stone  Tracy  Co.,  220  U.  S.  107,  55  L. 
Ed.   389,   31    S.    Ct.   343. 

Under  the  terms  of  the  Corporation 
Tax    Act.    corporations    and    joint    stock 


associations  must  be  such  as  are  "now  or 
hereafter  organized  imder  the  laws  of 
the  United  States  or  of  anj^  state  or  ter- 
ritory of  the  United  States  or  under  the 
acts  of  congress  applicable  to  Alaska  of 
the  District  of  Columbia."  Eliot  z'.  Free- 
man, 220  U.  S.  178,  55  L.  Ed.  424,  31  S. 
Ct.  360,  citing  Flint  v.  Stone  Tracy  Co., 
220  U.   S.   107.  55  L.   Ed.  389,  31   S.   Ct.  342. 

966-32k.  Eliot  v.  Freeman,  220  U.  S. 
178,  55  L.   Ed.  424,  31    S.   Ct.  360. 

Real  estate  trusts  created  by  deed  for 
the  purchasing,  improving,  holding,  or 
selling  lands  and  buildings  for  the  ben- 
efit of  the  shareholders,  which  do  not 
derive  any  benefit  from,  and  are  not  or- 
ganized under,  anj^  statute  of  the  state, 
and  which,  by  their  terms,  end  with  lives 
in  being  and  twenty  years  thereafter,  are 
not  subject  to  the  excise  imposed  by  Act 
Aug.  5,  1909,  c.  6,  §  38,  36  Stat.  112  (U. 
S.  Comp.  St.  Supp.  1909,  p.  844),  upon  the 
doing  of  business  by  corporations,  joint- 
stock  companies,  or  associations  "now 
or  hereafter  organized  under  the  laws  of 
the  United  States  or  of  any  state  or  ter- 
ritory." Eliot  z'.  Freeman,  220  U.  S.  178, 
55   L.   Ed.  424.  31   S.   Ct.  360. 

966-321.  Must  be  engaged  in  business. 
—Flint  V.  Stone  Tracy  Co..  220  U.  S. 
107.  55  L.  Ed.  389,  31  S.  Ct.  342.  See  ante, 
'"Must  Be  Organized  under  Some  Stat- 
ute," VT,   Di^j,  3.  a. 

966-32m.  Real  estate  corporations. — 
Flint  z:  Stone  Tracy  Co.,  220  U.  S.  107, 
55  L.  Ed.  389,  31  S.  Ct.  342.  See  ante. 
.  BUSINESS,  p.  214. 


1080 


Vol.  X. 


REJ'EXUE  LAIJ'S. 


966-980 


pose  of  owning  and  renting  an  ofifice  building,  but  which  has  wholly  parted 
with  the  control  and  management  of  the  property,  and  by  the  terms  of  a  re- 
organization has  disqualified  itself  from  any  activity  in  respect  to  it,  its  sole 
authority  being  to  hold  the  title  subject  to  a  lease  for  130  years,  and  to  re- 
ceive and  distribute  the  rentals  which  may  accrue  under  the  terms  of  the  lease, 
or  the  proceeds  of  any  sale  of  land,  if  it  shall  be  sold,  is  not  doing  business 
within  the  meaning  of  the  act.^-'^ 

(b)  Corporation  Owniivi  and  Leasin(/  7\:.vicabs. — A  corporation  owning 
and  leasing  taxicabs  and  collecting  rents  therefrom  is  engaged  in  business  within 
the  meaning  of  the  act.^-" 

c.  Public  Service  Corporations. — Public  service  corporations,  such  as  street 
railway  companies  created  under  state  laws,  may  constitutionally  be  subjected 
to  the  excise.^-" 

d.  State  Agencies. — Corporations  acting  as  trustees,  guardians,  etc.,  under 
the  authority  of  the  laws  or  courts  of  a  state,  are  not  the  agents  of  the  state 
government  in  such  a  sense  as  to  be  exempt  from  the  tax.^-'' 

0.  Payment  of  Internal  Revenue  Taxes — 4.  Lien  for  Unpaid  Taxes 
— d.  Enforcement  of  Lien. — As  against  other  lienholders  the  lien  of  the  gov- 
ernment on  distillery  property  may  be  enforced  by  a  suit  in  equity  or  it  may 
be  enforced  by  the  summary  remedy  of  sale  by  distraint.  The  statutes  give 
concurrent   remedies."^ 

R.  Action  by  United  States  to  Recover  Tax — 1.  Form  of  Action. — 
See  note  45. 


966-32n.  Znnne  r.  ^Minneapolis  Syndi- 
cate, 220  U.  S.  187.  5.5  L.  Ed.  428,  31  S. 
Ct.  361,  following  Flint  z\  Stone  Tracy 
Co.,  220  U.  S.  107.  00  L.  Ed.  389,  31  S.  Ct. 
342. 

966-320.  Corporation  ov/ning  and  leas- 
ing taxicabs. — Flint  :■.  Stone  Tracy  Co., 
220  U.   S.   107.  55  L.  Ed.  389.  31   S.   Ct.  342. 

A  corporation  owning  and  leasing 
taxicabs  and  collecting  rents  therefrom 
is  engaged  in  business  within  the  mean- 
ing of  Act  Aug.  5,  1909,  c.  6.  §  38.  36  Stat. 
112  (U.  S.  Conip._  St.  Supp.  1909.  p.  844\ 
imposing  an  excise  upon  the  doing  or 
carrying  on  of  business  in  a  corporate  or 
quasi  corporate  capacity.  Flint  z'.  Stone 
Tracy  Co..  220  U.  S.  107,  55  L.  Ed.  389. 
31  S.  Ct.  342. 

966-32p.  Public  service  corporations.— 
Flint  c'.  Stone  Tracy  Co.,  220  U.  S.  107. 
55    L.    Ed.   389.   31    S.    Ct.   .342. 

Public  service  corporations,  such  as 
street  railway  companies  created  imder 
state  laws,  may  constitutionally  be  sub- 
jected to  the  excise  imposed  by  Act  Aug. 
5.  1909.  c.  6,  §  38.  36  Stat.  112  (U.  S. 
Comp.  St.  Supp.  1909.  p.  844),  upon  the 
doing  or  carrying  on  of  business  in  a  cor- 
porate or  quasi  corporate  capacity.  Flint 
z:  Stone  Tracv  Co..  220  U.  S.  107.  55  L. 
Ed.   389.   31   S.   Ct.  342. 

966-32q.  State  agencies. — Flint  :■.  Stone 
Tracy  Co..  220  U.  S.  107.  55  L.  Ed.  389. 
31    S.    Ct.   342. 

Corporations  acting  as  trustees,  guard- 
ians, etc..  under  the  authority  of  the  laws 
or  courts  of  a  state,  are  not  the  agents 
of  the  state   government  in  such  a  sense 


as  to  be  exempt  from  the  imposition, 
under  Act  Aug.  5,  1909.  c.  6,  §  38,  36  Stat. 
112  (U.  S.  Comp.  St.  Supp.  1909,  p.  844), 
of  an  excise  measured  by  net  income 
upon  the  doing  or  the  carrying  on  of 
business  in  a  corporate  or  quasi  corpo- 
rate capacity.  Flint  z:  Stone  Tracy  Co., 
220  U.   S.   107.  55  L.   Ed.  389,  31   S.  Ct.  342. 

975-7a.  Enforcement  of  lien. — Black- 
lock  z'.  United  St?tes.  208  U.  S.  75,  52  L. 
Ed.    396.    28    S.    Ct.   228. 

The  remedv  afforded  by  Act  July  13, 
1866.  c.  184.  14  Stat.  98.  107,  108  [U.  S. 
Comp.  St.  1901.  pp.  2073,  2074.  2077].  of  a 
sale  by  distraint  of  whatever  interest  in 
real  estate  a  distiller  owned  when  the 
government's  lien  for  unpaid  internal 
revenue  taxes  attached,  was  not  super- 
seded bv  Act  July  20.  1868,  c.  186,  §  106, 
15  Stat.  125,  167  [U.  S.  Comp.  St.  1901,  p. 
2081],  empowering  the  commissioner  of 
internal  revenue,  if  he  deems  it  ex- 
pedient, to  proceed  to  enforce  such  lien 
1^3'  a  regular  suit  in  equity  in  a  federal 
court,  in  which  al!  persons  having  liens 
upon,  or  claiming  any  interest  in.  the 
premises,  can  be  made  parties  and  can 
have  their  rights  adjudicated.  Judgment 
(1906).  41  Ct.  CI.  89.  affirmed.  Blacklock 
f.  United  States.  208  U.  S.  75.  52  L.  Ed. 
396.  28  S.  Ct.  228,  distinguishing  Mans- 
field z'.  Excelsior  Refin.  Co..  135  U.  S. 
326,   339.   34   L.    Ed.   162. 

980-45.  Form  of  action. — The  United 
States  is  not  prohil)ited  from  adopting 
an  action  of  debt  to  recover  the  amount 
of  an  internal  revenue  tax.  even  where 
the  act  provided  a  special  remedy  for  the 


1081 


986 


REVENUE  LAWS. 


Vol.  X. 


U.  Violation  of  Internal  Revenue  Laws — 3.  Refusai,  to  Allow  Offi- 
cers TO  Enter  and  Examine:  Articles  Subject  to  Taxation. — See  note  79. 

4.  Penalties  and  Forfeitures  Incurred  by  Dealers  in  Oleomargarine. 
— Omitting  to  Keep  Books. — See  note  82. 

5^^.  Selling  Packages  Containing  "Anyt.hing  Else"  than  the  Contents 
When  Stamped.— Rev.  Stat.'  U.  S.,  §  3455,  U.  S.  Comp.  Stat.  1901,  p.  2279, 
provides  for  a  seizure,  forfeiture  and  penalty  for  selling  packages  which  con- 
tain, at  time  of  sale,  anything  else  than  the  contents  when  the  same  were  law- 
fully stamped  by  revenue  officers,  even  where  there  is  no  intent  to  defraud, 
and  for  a  much  heavier  penalty  where  there  is  such  fraudulent  intent. '^•^'^ 

The  Words  "Anything  Else." — The  words  "anything  else"  in  this  statute 
will  not  be  construed  to  embrace  substances  which  are  not  in  themselves  tax- 
able under  the  laws  of  the  United  States. ^^'^  Thus  the  sale  of  a  barrel  of  whis- 
key to  which  had  been  added,  after  such  barrel  had  been  properly  stamped 
by  a  revenue  officer,  burnt  sugar  or  caramel  as  coloring  matter,  does  not  au- 
thorize a  seizure  and  forfeiture. ^^"^  In  like  manner,  it  would  seem  that  the 
addition  of  water  to  the  contents  of  a  barrel  or  package  is  not  ground  of  for- 
feiture.^^*^ 


assessment  and  collection  of  the  tax. 
United  States  v.  Chamberlin,  219  U.  S. 
250,  55  L.  Ed.  204,  31  S.  Ct.  155,  follow- 
ing Dollar  Sav.  Bank  v.  United  States,  19 
Wall.  227,  22  L.  Ed.  80.  See,  generally, 
ante,   ACTIONS,   p.   7. 

986-79.  Right  of  officers  to  enter  and 
examine  taxable  articles. — United  States 
V.  Barnes,  222  U.  S.  513,  56  L.  Ed.  291,  32 
S.  Ct.  117.  See  post,  "Penalties  and  For- 
feitures Incurred  by  Dealers  in  Oleomar- 
garine," VI,  U,  4. 

The  express  extension  of  the  provisions 
of  Rev.  St.  U.  S.,  §§  3232-3241,  3243  (U. 
S.  Comp.  St.  1901,  pp.  2091-2095),  which 
deal  with  special  taxes,  to  the  special  tax 
on  oleomargarine,  made  by  Act  Aug.  2, 
1886,  §  3,  c.  840,  24  Stat.  209  (U.  S.  Comp. 
St.  1901,  p.  2229),  imposing  such  tax,  and 
not  purporting  to  be  complete  in  itself, 
is  not  an  implied  exclusion  of  the  gen- 
eral provisions  of  section  3177  (U.  S. 
Comp.  St.  1901,  p.  2069),  for  the  entry  by 
revenue  officers  of  any  building  or  place 
where  any  articles  or  objects  subject  to 
tax  are  made,  produced,  or  kept,  for  the 
purpose  of  examining  such  articles  or 
objects.  United  States  v.  Barnes,  222  U. 
S.  513.  56  L.  Ed.  291,  32  S.  Ct.  117.  See 
post,  STATUTES. 

986-82.  Omitting  to  keep  books.— A 
corporation  is  a  "person"  within  the 
meaning  of  Act  Mav  9.  1902,  c.  784,  §  1, 
32  Stat.  193  (U.  S.  Comp.  St.  Supp.  1907, 
p.  636),  requiring  wholesale  dealers  in 
oleomargarine  to  keep  certain  books  and 
make  certain  retvirns,  and  providing  for 
punishing  by  fine  and  imprisonment  "any 
person  who  willfully  violates  any  of  the 
provisions  of  this  section,"  although  §  5 
of  the  same  act  applies  in  express  terms 
to  corporations,  and  gives  the  court  dis- 
cretionary power  to  punish  either  by  fine 
or   imprisonment   or  both.     United   States 


V.  Union  Supply  Co.,  215   U.   S.   50,   54  L. 
Ed.  87,  30  S.  Ct.  15. 

986-83a.  Selling  packages  containing 
"anything  else"  than  when  stamped. — 
United  States  v.  Graf  Distilling  Co.,  208 
U.   S.   198,  52  L.   Ed.  452,  28   S.   Ct.  264. 

986-83b.  The  words  "anything  else."— 
United  States  v.  Graf  Distilling  Co.,  208 
U.   S.  198,  52   L.   Ed.  452,  28   S.   Ct.  264. 

Substances  which  are  not  in  themselves 
taxable  under  the  laws  of  the  United 
Stales  are  not  embraced  in  the  words 
"anything  else,"  as  used  in  Rev.  St.  U. 
S.,  §  3455  [U.  S.  Comp.  St.  1901,  p.  2279], 
providing  for  a  seizure,  forfeiture,  and 
penalty  for  selling*  packages  which  con- 
tain, at  the  time  of  sale,  anything  else 
than  the  contents  when  the  same  were 
lawfully  stamped  by  a  revenue  officer, 
even  where  there  is  no  intent  to  defraud, 
and  for  a  much  heavier  penalty  where 
there  is  such  fraudulent  intent.  United 
Stales  V.  Graf  Distilling  Co.,  208  U.  S. 
198,    52    L.    Ed.   452,   28    S.    Ct.   264. 

986-83C.  Adding  burnt  sugar  to  barrel 
of  whiskey. — United  States  v.  Graf  Dis- 
tilling Co.,  208  U.  S.  198,  52  L.  Ed.  452, 
28  S.   Ct.  264. 

The  sale  of  a  barrel  of  whiskey  to 
which  has  been  added,  after  such  barrel 
has  been  properly  stamped  by  a  revenue 
officer,  burnt  sugar,  or  caramel,  as  color- 
ing matter,  does  not  authorize  the  seizure 
and  forfeiture  to  the  United  States  pro- 
vided for  by  Rev.  St.  U.  S.,  §  3455  [U.  S.  • 
Comp.  St.  1901,  p.  2279],  when  a  barrel 
or  other  package  contains  anything  else 
at  the  time  of  sale  than  the  contents 
which  were  therein  when  lawfuU}' 
stamped.  United  States  v.  Graf  Dis- 
tilling Co.,  208  U.  S.  198.  52  L.  Ed.  452,  28 
S.  Ct.  264. 

986-83d.      Addition      of     water. — United 


1082 


Vol.  X.  REI^BXUB  LAU'S.  1016 

IX.     Stamp  Taxes. 

P.  Action  by  United  States  to  Recover  Tax. — Right  of  Action. — Ex- 
press statutory  authority  for  an  action  by  the  L'nited  States  to  recover  the 
stamp  tax  which,  under  War  Revenue  Act  June  13,  1898,  c.  448,  §  6,  30  Stat. 
451  (U.  S.  Comp.  St.  1901,  p.  2291),  is  to  be  levied,  collected,  and  paid  upon 
the  execution  of  a  conveyance,  is  given  by  §  31  of  that  act,  making  applicable 
all  administrative,  special,  or  stamp  provisions  of  law,  including  the  laws 
in  relation  to  the  assessment  of  taxes  not  heretofore  specifically  repealed,  which 
must  comprehend  the  authority  conferred  by  Rev.  St.  U.  S.,  §  3213  (U.  S. 
Comp.  St.  1901,  p.  2083),  to  sue  for  and  recover  taxes  in  the  name  of  the 
United  States  in  any  proper  form  of  action,  before  any  federal  circuit  or  dis- 
trict court  for  the  district  within  which  the  liability  is  incurred,  or  where  the 
party  from  whom  such  tax  is  due  resides. -^^^ 

Form  of  Action — Debt. — The  stamp  tax  which,  under  W^v  Revenue  Act 
June  13,  1898,  c.  448,  §  6,  30  Stat.  451  (U.  S.  Comp.  St.  1901,  p.  2291),  is  to 
be  "levied,  collected,  and  paid"  upon  the  execution  of  a  conveyance,  may  be 
recovered  by  the  United  States  in  an  action  of  debt,  notwithstanding,  the  fur- 
ther provisions  of  the  statute  imposing  fine  or  imprisonment  for  issuing  an 
unstamped  conveyance,  and  making  such  unstamped  instrument  inadmissible 
in  evidence,  incapable  of  record,  and  invalid  and  of  no  effect,  which  must  be 
deemed  made  in  order  to  induce  the  payment  of  the  tax,  and  not  as  substitutes 
for  payment. ^^'^ 

Q.  Validating  Unstamped  Instruments. — Conveyances  of  land  pre- 
viously made,  as  well  as  those  subsequently  executed,  were  comprehended 
by  Amendment  March  2,  1901,  c.  806,  §  7,  31  Stat.  941  (U.  S.  Comp.  St.  1901, 
p.  2294),  by  which  the  language  of  the  original  proviso  in  War  Revenue  Act 
June  13,  1898,  c.  448,  §  13,  30  Stat.  454,  for  validating  unstamped  bonds,  de- 
bentures, or  certificates  of  stock  or  indebtedness,  on  making  the  prescribed 
payment,  was  broadened  so  as  to  embrace  any  instrument,  document,  or  paper 
of  any  kind  or  description  whatsoever  mentioned  in  Schedule  A  of  the  act, 
which   specifically  mentioned   conveyances   of  land.^^*^ 

The  satisfaction  of  a  judgment  for  the  recovery  of  the  stamp  tax  which, 
under  War  Revenue  Act  June  13,  1898,  c.  448,  30  Stat.  454  (U.  S.  Comp. 
St.  1901,  p.  2294)  is  to  be  levied,  collected,  and  paid  upon  the  execution  of  a 
conveyance,  must  be  deemed  the  equivalent  of  the  payment  of  the  price  of  the 
stamps  under  §  13  of  that  act,  as  amended  bv  Act  March  2,  1901,  c.  806,  §  7, 
31  Stat.  941  (U.  S.  Comp.  St.  1901,  p.  2294),  validating  unstamped  instru- 
ments on  making  the  prescribed  payment,  in  view  of  Rev.  St.  U.  S.,  §  3216 
(U.  S.  Comp.  St.  1901,  p.  2084),  providing  that  all  judgments  and  moneys  re- 
States  V.  Graf  Distilling  Co.,  208  U.  S.  1016-56a.  Right  of  action.— United 
198.  52  L.   Ed.  452,  28  S.   Ct.  264.                           States    v.    Chamberlin,    219  U.    S.  250,    55 

"It  has  been  held  under  other  sections  L.  Ed.  204,  31  S.  Ct.  155,  reversing  judg- 
of  this  act,  somewhat  similar,  that  the  ment  156  Fed.  881,  84  C.  C.  A.  461,  13  A. 
addition    of    water    to    the    contents    of    a       &-  E.  Ann.  Cas.  720. 

barrel    or   package    is    no    ground   of   for-  1016-56b.       Form      of      action — Debt. — 

feiture.  We  do  not  say  that  the  Ian-  United  vStates  f.  Chamberlin,  219  U.  S. 
guage  is  exactly  the  same,  but  only  that  250,  55  L.  Ed.  204.  31  S.  Ct.  155,  revers- 
it  is  somewhat  similar."  United  States  t'.  ing  judgment  (1907),  156  F.  881,  84  C.  C. 
Graf  Distilling  Co.,  208  U.  S.  198.  52  L.  A.  461.  13  A.  &  E.  Ann.  Cas.  720.  See 
Ed:  452,  28  S.  Ct.  264.  citing  United  ante.  DEBT.  THE  ACTIOX  OF,  p.  457. 
States   V.   32    Barrels    of   Distilled    Spirits,  1016-56c.     Conveyances     of     land     pre- 

5  Fed.  188;  3  Packages  of  Distilled  viously  made. — United  States  z'.  Cham- 
Spirits,  14  Fed.  569;  United  States  i\  berlin.  219  U.  S.  250,  55  L.  Ed.  204,  31  S. 
Bardenheier,  49  Fed.  846,  848;  United  Ct.  155,  reversing  judgment  (1907),  156 
States  ex  rel.  United  States  Attorney  t-.  F.  881.  84  C.  C.  A.  461.  13  A.  &  E.  Ann. 
9  Casks  &  Packages  of  Distilled  Spirits,  Cas.  720. 
51  Fed.  191. 

10S3 


1016-1019  RUBBBROID.  Vol.  X. 

covered  or  received  for  taxes,  costs,  forfeitures,  and  penalties  shall  be  paid  to 
collectors  as   internal   taxes   are   required  to  be  paid.'^*''^ 

REVERSIBLE  ERROR. — See  ante,  xAppeal  and  Error,  p.  34. 

REVERSIONS. — See  ante,  Rp^mainders,  Reve;rsions  and  Executory  In- 
terests, p.  1057. 

REVIEW. — See  ante,  Appeal  and  Error,  p.  34;  Bill  of  Review,  p.  203.' 
Certiorari,  p.  228;  Extradition,  p.  571;  Mandamus,  p.  838;  Military 
Law,  p.  862.     And  see  the  particular  titles  throughout  this  supplement. 

REVIVAL. — See  ante.  Abatement,  Revival  and  Survival,  p.  1. 

REVOCATION. — As  to  revocation  of  power,  see  ante,  Powers,  p.  998.  As 
to  revocation  of  will,  see  post.  Wills. 

REWARDS. — See  the  title  Rewards,  vol.  10,  p.  1017.  and  references  there 
given. 

RIGHT  OF  CONTRACT.— See  ante.  Civil  Rights,  p.  236. 

RIGHT  OF  EMINENT  DOMAIN.— See  ante.  Eminent  Domain,  p.  SZ7. 

RIGHT  OF  ENTRY.— See  ante.  Mines  and  Minerals,  p.  865;  Public 
Lands,  p.  1012. 

RIGHT  OF  FISHERY.— See  ante.  Fish  and  Fisheries,  p.  583. 

RIGHT   OF  WAY.— See  note   1. 

RIPARIAN  OWNERS.— See  ante.  Constitutional  Law,  p.  264. 

RIPARIAN  RIGHTS.— See  ante.  Navigable  Waters,  p.  914;  post.  Waters 
AND  Watercourses. 

RIVERS. — See  ante,  Boundaries,  p.  206;  Xavigai'.le  Waters,  p.  914;  post, 
Waters  and  Watercourses. 

ROADS. — See  post.  Streets  and  Highways. 

ROBBERY.— See  the  title  Robbery,  vol.  10.  p.  lOlO  and  references  there 
given. 

ROMAN   CATHOLIC   CHURCH.— See  ante.  Religious  Societies,  p.   1055. 

RUBBEROID. — The  word  "rubberoid"  is  a  descriptive  term,  meaning  "like 
rubber."-^ 

1016-56d.     Satisfaction     of     judgment. —  is    much   used    as    an    English    formative, 

United    States    c'.    Chamberlin,    219    U.    S.  chiefly    in    scientific    words.'      Rubberoid, 

250,  55  L.  Ed.  204,  31  S.  Ct.  155,  reversing  theretore,   is  a   descriptive   woiu,   mcanuig 

judgment  156   F.   881,   84   C.   C.  A.  461,  13  'like     rubber.'  "       Standard     Paint     Co.     v. 

A.   &   E.   Ann.   Cas.   720.  Trinidad  Asphalt  Mfg.  Co.,  220  U.  S.  446, 

1018-1.       Right     of    way.— "As     said     by  454,  55  L.  Ed.  536,  31  S.  Ct.  456. 

Circuit     Judge     Sanborn,     delivering      the  The    word    ruberoid    is    descriptive,    not 

opinion   of  the   court   of  appeals   (p.  646) :  indicative    of    the    origin    or    the    owner- 

"The    ordinary    signification    of  the    term  ship    of    the    gooas;     and,    being    oi    tnat 

right  of  way,  when  used  to  describe  land  quality,  does  not  lose  such  quality  and  be- 

which    a   railroad   corporation   owns   or   is  come  arbitrary  by  being  misspelled;  hence 

entitled    to   use    for    railroad    purposes,    is  is  not  subject  to  appropriation  as  a  trade- 

the  entire  strip  or  tract  it  owns  or  is  en-  mark.     Bad   orthosrc^phy  has   not   yet   be- 

titled    to_  use  for    this    purpose,    and    not  come   so   rare  or  so  easily  aetectea  as  to 

any  specific  or  limited  part  thereof  upon  make  a  word  the  arbitrary  sign  of  some- 

wnicn    Its  main    track  or    other    specined  thing  else  than  its  conventional  meaning, 

improvements    are    located.' "      St.    Louis.  as   different,   to  bring  the   example   to  the 

etc.,   R.   Co.  V.  Wabash   R.   Co.,  217   U.   S.  present  case,  as   the   character  of  an  arti- 

247,  253,  54  L.  Ed.  752,  30  S.  Ct.  510.     Sec  cle    is    from  its    origin  or    ownership.      It 

ante,  RAILROADS,  p.  1046.  was    held    that    the    word    ruberoid    was 

^  1019-2a.      "Rubberoid    is    defined    in    the  not  the  subject  of  exclusive  appropnauon 

Century    Dictionary   as   a   trade   name    for  as   a   trademark   for  a  flexible   waterproof 

an  imitation  o^  hard  rubber.     It  is  a  com-  roofing.      Standard   Paint   Co.   v.   Trinidad 

pound  of  the  word  'rubber'  and  the  suffix  Asphalt     Mfg.      Co.,    220     U.      S.    446,     55 

'oid.'  and  'oid'  is  defined  in  the  same  die-  L.     Ed.     536,    31     S.     Ct.    456.      See    post, 

tionary   as   meaning   'having  the   form   or  TRADEMARKS,    TRADENAMES   AXD 

resemblance  of  the  thing  indicated,  "like.'"  UNFAIR  COAIPETITION. 

as    in    anthropoid,   like    man;    crystalloid.  Trademarks   and   tradenames. — As   to   a 

like   crystal;   hydroid,   like   water;   etc.      It  manufacturer   of   roofing   under   the   name 

1084 


Vol.  X. 


SALE  OF  LAND. 


1020 


RULE  IN   SHELLEY'S   CASE.— See  post,   Shelli^y's  Case,  Rule  in. 
RULE   OF   REASON, — See  ante.   Monopolies   and  Corporate  Trusts,  p. 
874. 


RULES  OF  COURT. 

CROSS  REFERENCES. 

See  the  title  Rules  of  Court,  vol.  10,  p.  1019,  and  references  there  given. 

A  rule  of  a  federal  circuit  court  which  is  inconsistent  with  the  laws 
of  the  United  States  is  invalid.'"' 

The  conformity  requirement  of  U.  S.  Rev.  Stat.,  §  914,  U.  S.  Comp. 
Stat.  1901,  p.  684,  does  not  necessitate  altering  a  rule  of  a  federal  circuit  court  as 
to  the  return  day  for  process,  adopted  under  the  authority  of  §  918,  in  conformity 
with  the  state  practice  then  existing,  so  as  to  conform  to  a  change  in  such  prac- 
tice made  by  subsequent  state  legislation.'"' 

SAC  AND  FOX  ANNUITIES.— See  ante,  Indians,  p.  641. 

SACRIFICE.— See  ante.  General  Average,  p.  608. 

SAFETY  APPLIANCE  ACT.— See  ante,  Actions,  p.  7;  Interstate  and 
T'oREiGN  Commerce,  p.  689;  Master  and  Servant,  p.  851;  Negligence,  p. 
920. 

SAILING  VESSELS.— See  ante.  Collision,  p.  243;  post,  Ships  and  Ship- 
ping. 

SAILORS. — See   post,   Seamen. 

SALE   OF  LAND. — See  ante.  Judicial  Sales,  p.  812;    post,  A^endor  and 

I^'RCHASER. 


of  ruberoid  not  making  out  a  case  of  un- 
fair competition  against  another  manu- 
facturer of  roofing  using  the  word  rub- 
bero  to  designate  its  products,  see  post, 
TRADEMARKS.  TRADENAMES  AND 
UNFAIR  COMPETITION. 

1020-6a.  Rule  inconsistent  with  laws  of 
United  States  is  invalid. — Davidson  Bros 
Marble  Co.  r.  United  States,  213  U.  S. 
10,    53    L.    Ed.    675,    29    S.    Ct.    324. 

A  rule  of  a  federal  circuit  court  which 
treats  as  a  general  appearance  a  special 
appearance  by  a  party  sued  in  the  wrong 
federal  district,  made  solely  for  the  pur- 
pose of  objecting  to  the  jurisdiction, 
Avithout  stating  that,  if  the  purpose  for 
which    such    special    appearance    is    made 


shall  not  be  sanctioned  or  sustained  by 
the  court,  he  will  appear  generally  in 
the  case,  is  invalid,  as  substantially  im- 
oairing  his  right  under  the  act  of  March 
3,  1891  f'JG  Stat,  at  L.  826,  chap.  517,  U.  S. 
Comp.  Stat.  1901,  p.  488),  §  5,  to  appear 
specially  and  object  to  the  jurisdiction  of 
the  court,  and  bring  an  adverse  decision 
directly  to  the  supreme  court  for  review. 
Davidson  Bros.  Marble  Co.  z'.  United 
States,  213  U  S.  10,  53  L.  Ed.  675.  29  S. 
Ct.  324. 

1020-6b.  Effect  of  conformity  require- 
ment.— Boston,  etc..  Railroad  r.  Gokey, 
310  U.  S.  155.  52  L.  Ed.  1002,  28  S.  Ct. 
657. 


1085 


1040  SALES.  Vol.  X. 

SALES. 

III.  Transfer  of  Title,  1086. 
C.  Delivery,  1086. 

2.  Delivery  to  Carrier  for  Shipment,  1086. 

a.  General  Rule,  1086. 

b.  Exceptions  to  Rule — Qualified  Delivery,  1087. 

(3)   Goods    Shipped   upon    Account    and    Risk   of    Shipper, 
1087. 

VI.  Remedies,  1087. 

A.  Remedies  of  Seller,  1087. 

3.  Action  for  Price  or  \^alue,  1087. 

c.  Defenses,   1087. 

(1)   In  General,  1087. 

(3)   A'endor  Part  of  Illegal  Combination,  1087. 

(5)  Liens  upon  the  Property  Purchased,   1087. 

(6)  Failure  to  Deliver  within  Time  Specified,  1087. 

IX.  Conditional  Sales,  1087. 

A.  What  Constitutes,   1087. 

C.  Validity,  Form  and  Requisites,   1087. 

3.  Possession  Delivered  to  Vendee,   1087. 

a.  At  Common  Law,  1087. 

b.  Under  Recording  Acts,  1087. 

D.  Construction.  Operation   and  Effect,   1087. 

5.  Rights  of  Parties  and  Third  Persons.   1087. 

a.  Right  of  A'endee  to  Convey  or  Subject  to  Execution,  1087. 

CROSS  REFERENCES. 

See  the  titles  Sales,  vol.  10,  p.  1022,  and  references  there  given. 

In  addition,  see  ante,  Bankruptcy,  p.  168;  Constitutional  Law,  p.  264; 
Courts,  p.  398;  Duress,  p.  533;  Due  Process  of  Law,  p.  475;  Instructions,  p. 
672;   Negligence,  p.  920;   Police  Power,  p.  955. 

As  to  the  admissibility  of  evidence  to  show  the  real  character  of  a  written  con- 
tract, in  the  form  of  a  conditional  sale,  see  ante.  Parol  Evidence,  p.  931.  As  to 
sales  to  the  United  States,  see  post.  United  States. 

III.  Transfer  of  Title. 

C.  Delivery — 2.  Delivery  to  Carrier  for  Shipment — a.  General  Rule. — 
See  note  85.  Where  a  purchaser  of  goods  directs  their  delivery  for  his  account 
to  a  designated  carrier,  the  latter  becomes  the  agent  of  the  purchaser,  and  de- 
livery to  such  carrier  is  a  legal  delivery  to  the  purchaser.^^^  And  when,  on  the 
delivery  of  goods  to  a  carrier,  bills  of  lading  are  issued  for  the  delivery  of  the 
goods  to  the  consignee  or  his  order,  the  acceptance  by  the  consignee  of  such  bills 
of  lading  constitutes  a  delivery. ^^^b 

1040-85.     Delivery    to    carrier— General  Ct.   100. 

rule. — United    States    v.    Aadrews    &    Co.,  Deliver}'    of   paper    purchased     by      the 

207  U.  S.  229,  52  L.  Ed.  185,  28  S.  Ct.  100,  United   States   for  the   public  printing  of- 

afifiiming  41    Ct.   CI.   48.  fice  in  the   Philippine   Islands  to  the  car- 

1040-85a.    Direction  by  purchaser  as  to  rier      designated      by      the       government, 

delivery  to  carrier. — United  States  v.  An-  coupled  with   the  acceptance  by  the  gov- 

drews  &  Co.,  207  U.  S.  229,  52  L.  Ed.  185,  ernment    of   the    bills    of   lading   made    to 

28   S.   Ct.  100.  the    consignee    or   his   order,    constitute    a 

1040-85b.    Acceptance  of  bills  of  lading  delivery   to    the    United    States,    relieving 

by  consignee. — United  States  f.  Andrews  the    seller   of   risk   of  injury   during  ship- 

&  Co.,  207  U.  S.  229,  52  L.  Ed.  185,  28  S.  ment,    although    the     words      "f.      o.      b. 

10S6 


Vol.  X.  SALES.  1041-1060 

b.  Exceptions  to  Rule — Qualified  Delivery — (3)  Goods  Shipped  upon  Account 
and  Risk  of  Shipper. — See  note  90. 

VI.  Remedies. 

A.  Remedies  of  Seller — 3.  Action  for  Price  or  Vai,ue — c.  Defenses — 
(1)  In  General. — A  purchaser  of  cattle  and  feed  can  not  defeat  a  recovery  of  all 
of  the  purchase  money  because  of  a  deficiency  in  the  stated  amount  of  feed,  where 
all  the  cattle  are  delivered,  and  the  recited  amount  of  feed  is  not  guaranteed,  and 
he  acts  on  his  own  inspection. ^^'^ 

(3)  Vendor  Part  of  Illegal  Combination. — See  ante,  ^Monopolies  and  Cor- 
P0R.\TE  Trusts,  p.  874. 

(5)  Liens  upon  the  Property  Purchased. — Recovery  on  a  contract  for  the  pur- 
chase of  cattle  can  not  be  defeated  because  liens  existed  on  those  not  stated  to  be 
subject  to  liens,  where  the  possibility  of  such  liens  was  contemplated  by  the  con- 
tract, and  they  were  satisfied  out  of  the  purchase  money.^-^'' 

(6)  Failure  to  Deliver  zvithin  Time  Specified. — Failure  to  deliver  cattle  within 
the  time  specified  by  the  contract  will  not  defeat  a  recovery  of  the  purchase  money, 
where,  by  statute,  time  is  not  of  the  essence  of  the  contract  unless  by  its  terms 
expressly  so  provided,  and  the  cattle  were  accepted  without  objection  on  that 
ground. ■^^'^ 

IX.   Conditional  Sales. 
A.   What  Constitutes. — A  contract  which  gives  the  purchaser  the  right  to 
resell  in  the  ordinary  course  of  business,  but  provides  that  title  shall  remain  in 
the  seller  until  such  resale,  and  that  the  proceeds  derived  therefrom,  in  whatever 
form  existing,  shall  be  the  property  of  the  seller,  is  a  conditional  sale.''^^ 

C.  Validity,  Form  and  Requisites — 3.  Posse;ssion  Delivered  to  Vendee — 
a.  At  Common  Law. — See  note  71. 

b.  Under  Recording  Acts. — In  Arkansas,  a  contract  which  gives  the  pur- 
chaser the  right  to  resell  in  the  ordinary  course  of  business,  but  provides  that  title 
shall  remain  in  the  seller  until  such  resale,  and  that  the  proceeds  derived  there- 
from, in  whatever  form  existing,  shall  be  the  property  of  the  seller,  is,  valid  with- 
out record.'-'' 

D.  Construction,  Operation  and  Effect — 5.  Rights  of  Parties  and 
Third  Persons — a.  Right  of  J'endee  to  Convey  or  Subject  to  Execution. — See 
note  81. 

Manila"    were    used    in    the     proposal     by  1054-66a.     Contract    held    a    conditional 

which    the    negotiation    was    commenced,  sale. — Bryant    v.      Swofford      Bros.       Dry 

where   the   context   and  subsequent  corre-  Goods   Co.,   214   U.   S.   279,   53   L.   Ed.   997, 

spondence  showed  that  these  words  were  29   S.   Ct.   614. 

used  as  implying  that,  in  as  much  as  the  1055-71.  Possession  delivered  to  vendee. 

freight   to   Manila  was  to  be   mcluded  m  —Bryant    v.    Swofford    Bros.    Dry    Goods 

the    purchase    price,    it     was    to    be    pri-  q^^  214  U.  S.  ?79,  53  L.  Ed.  997,  29  S.  Ct. 

manly  deirayed  by  the  seller.     Judgment,  614,  affirming  153  Fed.  Rep.  841,  83  C.  C. 

R.    P.    Andrews    &    Co.    v.    United    States  ^    23 

(1905),    41    Ct.    CI.    48,    affirmed.     United  "  ._„  ^„        n      4.       ^      ^ua    ;„     a^u  „c,,o 

c,    ,              \    A             on       nnr,  TT    e    oon  1056-72a.     Contract    valid    in    Arkansas 

Stales  Z-.   Andrews   &   Co.,   207    U.   S.   229,  -^u      ..                j      r>          <-                c     ^a^^A 

'"  L    Ed    18"    ''8  S    Ct    100  without     record. — Bryant      v.       bworford 

"^"in/ii  ar\     n^^^Ac  '^uir^r^^A   ^l  ^JoU  ^f  .-^r,  Bros.    Dry   Goods    Co.,   214   U.    S.   279,   53 

1041-90.    uoods  snipped  at  risk  or  con-  j      r^,     v'^     or,    o     n^    r-iA     ^ffir-^;^rr   1-3 

•    „           TT    -^    1   c   i.              \     J             on  E.    Ed.    997,    29    S.    Ct.    614,    arnrmmg   lo3 

signor. — United  States  z\  Andrews  &  Co.,  tf    ,^^         o--,     00   r^    r^     a     00      c^o    oi^^ 

207  U.  S.  229.  52  L.  Ed.  185,  28  S.  Ct.  100.  ^^f'  l^^^rnvr^A^r   frrq  I   io4            ' 

1048-34a.  Where  a  deficiency  will  not  ^"^e,  RECORDING  ACTS.  p.  10o2. 
defeat  recovery  of  all  purchase  money.—  1060-81.  The  lien  created  m  Ilhnois  by 
Snyder  v.  Rosenbaum,  215  U.  S.  261,  54  the  delivery  to  the  sheriff  of  an  execution 
L.  Ed.  186,  30  S.  Ct.  73.  o"  3  judgment  attaches  to  the  property 
1048-35a.  Liens  upon  the  property  pur-  held  by  the  judgment  debtor  under  a 
chased.— Snyder  t:  Rosenbaum,  215  U.  S.  contract  of  conditional  sale,  and  is  para- 
261,  54  L.  Ed.  186,  30  S.  Ct.  73.  mount  to  the  rights  of  the  conditional 
1048-3513.  Failure  to  deliver  within  vendor.  Rock  Island  Plow  Co.  v.  Rear- 
time  specified.— Snvder  z:  Rosenbaum,  aon,  222  U.  S.  354,  56  L.  Ed.  231,  32  S. 
215   U.    S.   201,   54   L.   Ed.   186,  30   S.    Ct.   73.  Ct.    164. 

1087 


1064-1067  SALVAGE.  Vol.  X. 

SALINE  LANDS.— See  ante,  Pubuc  Lands,  p.  1012. 

SALVAGE. 

I.  Definition  and  Nature,  1088. 
IL  Necessary  Elements,  1088. 

B.  Property  in   Peril,    1088. 

C.  The  Service  Rendered.  1088. 

1.  In  General,   1088. 

3.  Saving  Vessels  from  Fire,  1088. 

IV.  Property  Liable  for  Salvage,  1088. 
B.  A^ssels  Lying  at  Wharf,   1088. 
XII.  Procedure,   1089. 
G.  Review,  1089. 

CROSS  REFERENCES. 

See  the  title  Salvage,  vol.  10,  p.  1062,  and  references  there  given. 

In  addition,  see  ante,  Admiralty,  p.  10;  Appeal  and  Error,  p.  34;  Courts, 
p.  398. 

As  to  abatement  of  action  on  pending  claim  of  owners  of  vessel  of  benefits  of 
the  limited  liability  provisions,  see  ante.  Abatement,  Revival  and  Survival, 
p.  1.    As  to  jurisdiction  of  causes,  see  ante.  Admiralty,  p.  10. 

I.  Definition  and  Nature. 
See  note  1. 

II.  Necessary  Elements. 

B.  Property  in  Peril. — See  note  6. 

C.  The  Service  Rendered — 1.  In  General. — See  note  9. 
3.    Saving  Vessels  from  Fire. — See  note  11. 

IV.  Property  Liable  for  Salvage. 
B.  Vessels  Lying  at  Wharf.— See  note  34. 

1064-1.    Definition. — The    Steamship  Jef-  character  of  services  upon  which   a  claim 

ferson,    215    U.    S.    130,   54   L.    Ed.    125,    30  to  salvage  may  be  based  was  pointed  out 

S.  Ct.  54.  in  the   definition   of  salvage  given   in   the 

1064-6.     Property  in  peril.— "In   the   na-  opinion    in    The    Blackwall,    10    Wall.    1, 

Uire   of   things   it   is   manifest,   and   indeed  19  L.   Ed.  870,  where  it  was  said   (p.   12): 

it   is    settled,    that,    because    of   the   broad  'Salvage   is   the   compensation  allowed   to 

scope    of    the    admiralty     jurisdiction     in  persons    by    whose    assistance    a    ship    or 

this    country,    the    perils    out    of   which    a  her  cargo  has  been  saved,  in  whole  or  in 

salvage  service  may  arise  are  all  of  such  part,  from  impending  peril  on  the  sea,  or 

perils    as    may   encompass    a   vessel   when  in   recovering   such    property   from   actual 

upon    waters    which    are    within    the    ad-  loss,  as  in  cases  of  shipwreck,  derelict,  or 

miralty  jurisdiction  of  the  United  States;  recapture.'"      The     Steamship      Jefiferson. 

from    which    it    follows    that   the    right   to  215  U.  S.  130,  54  L.  Ed.  125.  30  S.  Ct.  54. 

recover    for     salvage      services      is      not  1065-9.     The    Steamship    Jefferson,    215 

limited  to  services  concerning  a  peril  oc-  U.   S.   130,  54   L.   Ed.   125,   30   S.   Ct.  54. 

curring   on   the    high    seas    or   within   the  1065-11.     Service   by    tugs    to    vessel   in 

ebb   and  flow   of  the   tide.     And   although  dry   dock. —  A    court   of   admiralty   has    iu- 

in    defining   salvage,   the   expression   'peril  risdiction   of  a   libel   claiming   salvage    for 

of   the    sea'   has    sometimes   been   used   as  services   rendered   by   tugs   in   subduing   a 

equivalent   to  "peril   on   the   sea,'   it  is   set-  fire    communicated    from    the    shore    to    a 

tied    that    the    distress    or    danger    from  ^^essel   undergoing   repairs   in   a   dry   dock 

which   a  vessel  has   been   saved   need  not,  from    which    all     the      water      had      been 

in   order  to  justify  a  recovery  of  salvage  emptied.      The    Steamship    Jefiferson,    215 

compensation,   have   arisen   solely  by  rea-  U.  S.  130,  54  L.  Ed.  125,  30  S.  Ct.  54.     See 

son  of  a  peril  of  the  sea  in  the  strict  legal  ante,    ADMIRALTY,   p.    10. 

acceptation   of  those   words.     The   varied  1067-34.    Vessel    lying    at     wharf.— The 

1088 


Vol.  X. 


SB  A  BEACH. 


1075-1079 


XII.  Procedure. 
G.  Review. — See  ante,  Admiralty,  p.  10;  Appe;al  and  Error,  p.  34. 

SAME  OFFENSE.— See  ante,  Autrefois,  Acquit  and  Convict,  p.  161. 

SATISFACTION.— See  ante.  Executions,  p.  563;  Judgments  and  De- 
crees, p.  807;   Mortgages  and  Deeds  of  Trust,  p.  891;    Payment,  p.  945. 

SAVINGS  BANKS.— See  ante.  Banks  and  Banking,  p.   184. 

SCHEDULE.— See  ante.  Revenue  Laws,  p.  1071. 

SCHEMES.— See  note  a. 

SCHOOL  FUNDS.— See  ante,  Civil  Rights,  p.  236. 

SCHOOL  GRANTS.— See  ante,  Public  Lands,  p.  1012. 

SCHOOLS  AND  SCHOOL  DISTRICTS.— See  the  title  Schools  and 
School  Districts,  vol.  10,  p.  1075,  and  references  there  given.  In  addition, 
see  ante,  Civil  Rights,  p.  236;  Constitutional  Law,  p.  264;  Due  Process 
OF  Law,  p.  475 ;   Police  Power,  p.  955 ;  post,  Statutes. 

SCIRE  FACIAS.— See  the  title  Scire  Facias,  vol.  10,  p.  1076,  and  refer- 
ences there  given. 

SCRAP. — See  post,  Unmanufactured  Tobacco.  See,  also,  ante.  Revenue 
Laws,  p.  1071. 

SEA. — See  ante.  Admiralty,  p.  10;  International  Law,  p.  686;  Navi- 
gable Waters,  p.  914. 

SEA  BEACH.— See  note  la. 


Steamship  Jefferson,  215  U.  S.  130,  54  L. 
Ed.   125,   30   S.   Ct.   54. 

A  steamship  while  in  dry  dock,  under- 
going repairs,  was  subject  to  the  juris- 
diction of  a  court  of  admiralty  and  liable 
lor  a  salvage  service.  The  bteamship,  be- 
fore being  docked,  had  been  engaged  in 
navigation,  was  dedicated  to  the  purposes 
of  transportation  and  commerce,  and  had 
been  placed  in  the  dry  dock,  to  undergo 
repairs  to  fit  her  to  continue  in  such 
navigation  and  commerce.  The  Steam- 
ship Jefferson,  215  U.  S.  130,  54  L.  Ed. 
125,   30   S.   Ct.   54. 

"It  can  not  be  held  that  a  ship  or  ves- 
sel employed  in  navigation  and  com- 
merce is  any  the  less  a  maritime  subject 
within  the  admiralty  jurisdiction  when, 
for  the  purpose  of  making  necessary  re- 
pairs to  fit  her  for  continuance  in  navi- 
gation, she  is  placed  in  a  dry  dock  and 
the  water  removed  from  about  her,  than 
would  be  such  a  vessel  if  fastened  to  a 
wharf  in  a  dry  harbor,  where,  by  the 
natural  recession  of  the  water  by  the 
ebbing  of  the  tide,  she  for  a  time  might 
be  upon  dry  land.  Clearly,  in  the  case 
last  supposed,  the  vessel  would  not  cease 
to  be  a  subject  within  the  admiralty  ju- 
risdiction merely  because,  for  a  short 
period,  by  the  operation  of  nature's  laws, 
water  did  not  flow  about  her.  Nor  is 
there  any  difference  in  principle  between 
a  vessel  floated  into  a  wet  dock,  which 
is  so  extensively  utilized  in  England  for 
commercial  purposes  in  the  loading  and 
imloading  of  vessels  at  abutting  quays, 
;'nd  the  dry  dock  into  which  a  vessel 
must  he   floated  for  the  purpose   of  being 


repaired,  and  from  which,  after  being  re- 
paired, she  is  again  floated  into  an  ad- 
jacent stream.  The  status  of  a  vessel  is 
not  altered  merely  because,  in  the  one 
case,  the  water  is  confined  within  the 
dock  by  means  of  gates  closed  when  the 
tide  begins  to  ebb,  while,  in  the  other 
the  water  is  removed  and  the  gates  are 
closed  to  prevent  the  inflow  of  the  water 
during  the  work  of  repair."  The  Steam- 
ship Jefferson,  215  U.  S.  130,  54  L.  Ed. 
125.  30  S.  Ct.  54.  See,  also,  ante,  AD- 
MIRALTY,  p.   10. 

1075-a.  Use  of  mails  for  schemes  to  de- 
fraud.— Section  3894,  Rev.  Stat.,  applies 
to  the  use  of  the  mail  for  the  purpose  of 
promoting  lotteries  or  other  like  schemes 
of  chance,  while  §  5480  is  intended  to  pro- 
hibit the  use  of  the  mail  to  carry  on 
schemes  of  general  fraud,  the  language 
being  "any  scheme  or  artifice  to  defraud." 
The  words  "or  concerning  schemes  de- 
vised for  the  purpose  of  oljtaining  money 
or  property  by  false  pretenses"  are  to  be 
limited  to  schemes  having  a  similitude  to 
the  lottery  and  other  like  schemes  partic- 
ularly described  by  the  particular  words 
of  the  section,  and  do  not  cover  the  use 
of  the  mails  to  promote  other  schemes  to 
obtain  money  or  property  by  means  of 
false  pretenses,  which  arc  embraced  by 
the  provisions  of  §  5480.  United  States 
V.  Stever,  222  U.  S.  167,  174,  56  L.  Ed.  145, 
32  S.  Ct.  51.  Sec  ante,  POSTAL  LAWS, 
p.  996. 

10f9-la.  Sea  beach. — An  instruction 
that  a  grant  from  the  King  of  Hawaii  of 
the  upland  above  a  street  down  to  what 
was  then  its  upper  side,  "and  also  the  sea 


12  U  S  Enc— 69 


1089 


1085  SEARCHES  AND  SEIZURES.  Vol.  X. 

SEALS  AND  SEALED  INSTRUMENTS.— See  the  title  Seals  and  Sealed 
Instruments,  vol.  10,  p.  1079,  and  references  there  given. 

SEAMEN. 
III.  Wages,  1090. 

E.  Protection  of  Wages  from  Seizure  by  Attachment  or  Execution,  1090. 

CROSS  REFERENCES. 

See  the  title  Seamen,  vol.  10,  p.  1082,  and  references  there  given. 
And  as  to  the  applicability  of  the  immigration  laws  to  sailors  deserting  while 
on  shore  leave,  see  ante,  Aliens,  p.  18. 

III.  Wages. 

E.  Protection  of  Wages  from  Seizure  by  Attachment  or  Execution. — 

Seamen's  wages  are  protected  from  seizure  after  judgment  by  attachment  or  pro- 
ceedings in  aid  of  execution  by  the  provisions  of  Rev.  St.  U.  S.,  §  4536  (U.  S.' 
Comp.  St.  1901,  p.  3082),  that  no  wages  due  or  accruing  to  any  seaman  shall  be 
subject  to  attachment  or  arrestment  from  any  court,  and  declaring  that  payment 
of  wages  to  seamen  shall  be  valid  notwithstanding  any  previous  sale  or  assign- 
ment or  any  attachment,  incumbrance,  or  arrestment,  and  that  no  assignment  or 
sale  of  wages,  made  prior  to  the  accruing  thereof,  shall  be  binding,  except  certain 
authorized  advance  securities,  when  construed  in  the  light  of  other  provisions  of 
the  same  title,  enacted  to  secure  to  the  seaman  his  remedy  in  admiralty  for  the  re- 
covery of  his  wages  by  condemnation  of  the  ship.^^^ 


SEARCHES  AND  SEIZURES. 

CROSS  REFERENCES. 

See  the  title  Searches  and  Seizures,  vol.  10,  p.  1087,  and  references  there 
given. 

In  addition,  see  ante,  Admiralty,  p.  10;  Constitutional  Law,  p.  264;  Pen- 
alties AND  Forfeitures,  p.  945;  Prize,  p.  1007;  Revenue  Laws,  p.   1071. 

As  to  the  seizure  and  confiscation  of  impure  and  unwholesome  food  stuffs,  see 
ante.  Due  Process  of  Law,  p.  475 ;  Interstate  and  Foreign  Commerce,  p.  689. 
As  to  whether  requiring  a  bankrupt  to  produce  books  and  papers  is  an  infringe- 
ment of  the  conditional  guaranty,  see  ante,  Constitutional  Law,  p.  264. 

Unreasonable  Searches  and  Seizures  as  Regards  the  Fourth  and  Fifth 
Amendments. — See,  generally,  ante.  Constitutional  Law,  p.  264.  As  to  the 
admissibility  in  evidence  of  papers,  prints,  documents,  etc.,  unlawfully  seized, 
see  ante,  Constitutional  Law,  p.  264. 

General    Object    and    Purpose    of    Fourth    Amendment. — The    fourth 

beach  in  front  of  the  same  down  to  low-  would  seem  that  if  the  words  "the  sea 
water  mark,"  includes  the  strip  between  beach"  be  taken  in  a  very  strict  sense, 
the  front  lines  of  the  upland,  as  described  there  would  have  been  a  strip  not  con- 
by  metes  and  bounds,  and  high-water  veyed,  between  the  front  lines  of  the  up- 
mark,  can  not  be  deemed  erroneous  by  land  as  described  by  metes  and  bounds, 
the  federal  supreme  court  without  having  and  the  beach — that  is,  high-water  mark, 
the  evidence  before  it,  where  the  supreme  Spreckels  v.  Brown,  212  U.  S.  208,  53  L. 
court  of  Hawaii,  in  upholding  the  instruc-  Ed.  476,  29  S.  Ct.  256.  See  ante,  APPEAL 
tion,   said  that  the   area  between  the   part  AND   ERROR,  p.  34. 

described   and   high-water   mark   was    not  1085-I9a.     Protection     of    wages      from 

very    extensive,    was  of    little    value,    and  seizure    by    attachment     or      execution.— 

was    closely    connected     with    the    upper  wilder   v.    Inter-Island    Steam    Nav.    Co.,. 

part  in  use.  Ihis  is  true  although  from  o^  y.  S.  239,  53  L.  Ed.  164^  29  S.  Ct.  58.. 
the    facts    that    appear   but   imperfectly,    it 

1090 


Vol.  X. 


SEARCHES  AND  SEIZURES. 


1088 


amendment  of  the  constitution,  protecting  against  unreasonable  searches  and 
seizures,  was  adopted  to  protect  against  abuses  in  judicial  procedure  under  the 
guise  of  law,  which  invade  the  privrxy  of  persons  in  their  homes,  papers  and  ef- 
fects, and  applies  to  criminal  prosecutions  and  suits  for  penalties  and  forfeitures 
under  the  revenue  laws.^^'' 

Where  Other  Party  Entitled  to  Have  Documents  Produced. — There  is 
no  unreasonable  search  and  seizure  when  a  writ,  suitably  specific  and  properly 
limited  in  its  scope,  calls  for  the  production  of  documents  which,  as  against  their 
lawful  owner  to  whom  the  writ  is  directed,  the  party  procuring  its  issuance  is  en- 
titled to  have  produced. ^i'' 

Seizure  or  Compulsory  Production  of  Corporate  Books  and  Papers. — 
The  protection  against  unreasonable  searches  and  seizures  afforded  by  the  fourth 
amendment  of  the  federal  constitution  can  not  ordinarily  be  invoked  to  justify 
the  refusal  of  an  officer  of  a  corporation  to  produce  its  books  and  papers  in  obe- 
dience to  a  subpoena  duces  tecum,  either  in  a  criminal  investigation  or  proceeding, 
or  in  an  action  to  recover  a  statutory  penalty.^ ^'^ 


1088-lla.  General  object  and  purpose 
of  fourth  amendment. — Flint  v.  Stone 
Tracy  Co.,  220  U.  S.  107,  55  L.  Ed.  389, 
31  S.  Ct.  342;  Boyd  v.  United  States,  110 
U.   S.  616,   632,  29   L.   Ed.  746,   6  S.   Ct.   524. 

1088-llb.  Where  other  party  entitled 
to  have  documents  produced. — Wilson  ?■. 
United  States,  221  U.  S.  361,  55  L.  Ed. 
771.    31    S.    Ct.    538. 

1088-llc.  Seizure  or  compulsory  pro- 
duction of  corporate  books  and  papers. — 
American  Lithographic  Co.  i:  Werck- 
meister,  221  U.  S.  603,  55  L.  Ed.  873,  31 
S.  Ct.  676,  affirming  judgment  (1908),  165 
F.  426,  91  C.  C.  A.  376;  Wilson  v.  United 
States,  221  U.  S.  361,  55  L.  Ed.  771.  31 
S.  Ct.  538.  See,  also,  ante,  CONSTITU- 
TIONAL LAW,  p.  264. 

The  enforced  production  before  a 
grand  jury  engaged  in  investigating  the 
alleged  criminal  conduct  of  corporate  of- 
ficers, directors,  and  stockholders  of  the 
letter-press  copy  books  of  the  corpora- 
tion for  two  specified  months,  in  the  pos- 
session of  its  president,  under  a  sub- 
pcena  duces  tecum  directed  to  the  cor- 
poration, does  not  violate  the  provisions 
of  Const.  Amend.  4,  forbidding  unreason- 
able searches  and  seizures.  Wilson  v. 
United  States,  221  U.  S.  361,  55  L.  Ed.  771, 
31   S.   Ct.   538. 

Under  Vermont  Act  of  October  9, 
1906. — .^.n  unreasonable  search  and 
seizure  of  the  private  books  and  docu- 
ments of  a  corporation  doing  business  in 
the  state  is  not  made  by  the  proceedings 
under  Act  Vt.  Oct.  9,  1906,  p.  79,  No.  75, 
to  compel  the  production  before  a  grand 
iury  of  material  books  and  papers  called 
for  by  a  notice  limited  to  such  books  or 
papers  as  relate  to  or  concern  any  deal- 
ings or  business  between  January  1,1904, 
and  the  date  of  the  notice,  October  10, 
1906,  with  the  parties  named  therein,  who 
were  cattle  commissioners  of  the  state, 
to  be  used  relative  to  the  matter  of  a 
complaint  pending,  and  then  and  there 
to  be   investigated  by  the  grand  jury,   in 


which  the  persons  named  in  the  notice 
were  charged  with  having  unlawfully 
sold  diseased  meat  for  food  purposes  at 
Burlington,  Vt.,  the  notice  also  giving  in 
detail  the  dates  and  amounts  of  checks 
and  vouchers  which  the  company  was 
required  to  produce.  Judgment,  In  re 
Consolidated  Rendering  Co.  (Vt.  1907), 
66  A.  790,  affirmed.  Consolidated  Ren- 
dering Co.  z'.  Vermont,  207  U.  S.  541,  52 
L.    Ed.    327.    28    S.    Ct.    178. 

Same — Infringement  of  same  principle 
as  embodied  in  state  constitution. — An 
order  issued  under  Laws  1906,  p.  79,  No. 
75,  directing  a  corporation  to  produce  be- 
fore a  grand  jury  certain  books  and  pa- 
pers, and  sufficiently  describing  them,  is 
in  eflfect  the  same  as  a  subpoena  duces 
tecum,  except  that  it  applies  to  a  cor- 
poration, and  where  it  requires  no  search 
of  the  company  to  find  the  hooks  and 
papers  demanded,  and  no  hardship  to 
produce  them,  the  order  is  not  for  an 
unreasonable  search  or  seizure,  in  viola- 
tion of  Const.,  art.  11,  as  no  force  or 
auest  by  the  officer  is  authorized,  and 
that  article  was  not  intended  to  interfere 
with  the  power  of  the  court  to  compel  the 
production  of  documentary  evidence  in 
any  proceeding  therein.  (1907),  In  re 
Consolidated  Rendering  Co..  66  A.  790, 
80  Vt.  55.  judgment  affirmed.  Consoli- 
dated Rendering  Co.  v.  Vermont.  207  U. 
S.   541,   52   L.   Ed.   327,   28   S.   Ct.   178. 

Laws  1906,  p.  79,  No.  75,  providing  that 
any  corporation  doing  business  in  the 
state  shall  upon  notice  produce  before 
any  court,  grand  jury,  tribunal,  or  com- 
mission actinrr  under  authority  of  the 
state,  all  books,  correspondence,  memo- 
randa, papers,  and  data  which  mav  con- 
tain any  account,  reference,  or  informa- 
tion concerning  the  proceedings  or  sub- 
ject of  inquiry  pending  before  the  body, 
and  which  may  nl  any  time  have  been 
made  or  kept  within  the  state  and  are  in 
the  custody  of  the  corporation,  or  which 
relate  to  any  transaction  within  the  state 


1091 


1088 


SELF-DBFBNSB. 


Vol.  X. 


Requiring  Interstate  Carriers  to  Make  Sworn  Reports  as  to  Excess 
Service  under  Hours  of  Labor  Act. — See  ante,  Interstate;  and  Foreign 
Commerce,  p.  689. 

Requiring  Sworn  Tax  Returns  and  Making  Same  Public  Documents 
Open  to  Public  Inspection. — [Making  the  returns  for  the  assessment  of  the 
excise  imposed  by  the  Act  of  August  5,  1909,  §  38,  on  the  doing  or  the  carrying 
on  of  business  in  a  corporate  or  quasi  corporate  capacity,  pubhc  documents  and 
open  to  inspections  as  such,  under  certain  restrictions,  as  is  done  by  subsection  6 
of  that  act,  as  amended  by  the  Act  of  June  17,  1910  (Stat,  at  L.  2d  Sess.  61st 
Cong.  494,  chap.  297),  does  not  do  violence  to  the  constitutional  protection  against 
unreasonable  searches  and  seizures. ^^'^  Certainly  the  amendment  was  not  in- 
tended to  prevent  the  ordinary  procedure  in  use  in  many,  perhaps  most,  of  the 
states,  of  requiring  tax  returns  to  be  made,  often  under  oath.^^® 

SEA  SERVICE.— See  ante.  Army  and  Navy,  p.  150. 

SEAWORTHINESS.— See  post,    Ships  and   Shipping. 

SECONDARY  EVIDENCE.— See  ante.  Best  and  Secondary  Evidence, 
p.  202. 

SECRETARY  OF  INTERIOR.— See  ante.  Indians,  p.  641;  AIandamus, 
p.  838. 

SECTARIAN   SCHOOL  APPROPRIATIONS.— See  ante,   Indians,   p.  641. 

SECTION. — See  ante.  Public  Lands,  p.  1012 ;   post.  Statutes. 

SECURITY  FOR  COSTS.— See  ante.  Appeal  and  Error,  p.  34;  Costs, 
p.  396. 

SELF-DEFENSE.— See  ante.  Homicide,  p.  619. 


or  with  parties  residing  or  having  a 
place  of  business  therein;  and  providing 
for  the  manner  of  service  of  the  order  to 
produce  and  for  punishment  for  con- 
tempt in  case  of  noncompliance,  does  not 
contravene  Const.,  art.  11,  relating  to  the 
search  or  seizure  of  property  and  the 
particularity  of  description  required  in 
M^arrants  therefor,  since  the  act  restricts 
the  order  to  such  books  and  papers  as 
contain  information  concerning  the  sub- 
ject of  inquiry,  and  is  sufficiently  definite 
and  limited.  (1907),  In  re  Consolidated 
Rendering  Co.,  66  A.  790,  80  Vt.  55,  judg- 
ment affirmed.  Consolidated  Rendering 
Co.  V.  Vermont,  207  U.  S.  541,  52  L.  Ed. 
327.  28   S.   Ct.   178. 

The  order  and  proceedings  for  con- 
tempt for  a  violation  thereof  were  not  an 
infringement  of  Const.,  art.  11,  as  a 
seizure,  on  account  of  the  fact  that  no 
lender  was  m.ade  to  cover  the  fees  and 
expenses  for  appearing  before  the  court 
with  the  books  and  documents,  since  un- 
der the  law  it  is  the  duty  of  any  witness 
summoned  in  behalf  of  the  state  in  a 
criminal  case  to  appear  according  to  the 
summons  without  a  preliminary  tender  of 
his  fees.  (1907),  In  re  Consolidated  Ren- 
dering Co.,  66  A.  790,  80  Vt.  55,  judgment 
aflirmed.  Consolidated  Rendering  Co.  v. 
Vermont,  207  U.  S.  541,  52  L.  Ed.  327,  28 
S.    Ct.   178. 

Under  Arkansas  Antitrust  Act  of  Jan- 
uary 23,  1905 — Operation  of  fourteenth 
amendment.— Conceding,    but    not    decid- 


ing, that  the  due  process  clause  of  the 
fourteenth  amendinent  operates  to  for- 
bid unreasonal)le  searches  and  seizures, 
an  order  directing  a  foreign  corporation 
sued  for  violating  the  Arkansas  Anti- 
trust Act  of  January  23,  1905,  to  produce 
as  witnesses  before  a  commission  cer- 
tain named  officers,  agents,  directors,  and 
employees,  and  to  prodtice  any  books, 
papers,  or  documents  in  the  possession 
or  under  the  control  of  such  witnesses, 
relating  to  the  merits  of  the  cause  or  to 
any  defense  therein,  does  not  amount  to 
an  unreasonable  search  and  seizure,  even 
though  the  books  and  papers  called  for 
may  not  have  been  at  any  time  kept 
within  the  state  of  Arkansas.  Hammond 
Packing  Co.  v.  Arkansas.  212  U.  S.  322, 
53   L.    Ed.   530,   29    S.   Ct.    370. 

1088-lld.  Requiring  sworn  tax  returns 
and  making  same  public  documents  open 
to  public  inspection. — Flint  v.  Stone 
Tracy  Co..  220  U.  S.  107,  55  L.  Ed.  389, 
31    S.   Ct.   342. 

This  feature  of  the  law  does  not  do 
violence  to  the  constitutional  protection 
of  the  fourth  amendment,  and,  this  is 
equally  true  of  the  fifth  amendment, 
protecting  persons  against  compulsory 
self-incriminating  testimony.  Flint  v. 
Stone  Tracy  Co.,  220  U.  S.  107,  55  L.  Ed. 
389,    31    S.    Ct.    342. 

1088-lle.  Same.— Flint  v.  Stone  Tracy 
Co.,  220  U.  S.  107,  55  L.  Ed.  389,  31  S. 
Ct.   342. 


109S 


Vol.  X.  SBNTBXCE  AXD  PUXISHMBNT.  1094 

SELF-INCRIMINATION.— See   ante,   Constitutional   Law,   p.   264;   Due 
Process  of  Law.  p.  475. 

SEMAPHORES.— See  ante,  Lntereocking  Plant,  p.  686. 


SENTENCE  AND  PUNISHMENT. 
I.  Sentence,  1093. 

C.  Conformity  to  Statute  as  to  Character  and  Extent  of  Punishment,  1093. 

3.  Sentence  Not  within  Jurisdiction  Void,   1093. 
b.  When  Sentence  within  Jurisdiction,   1093. 
(2)   Excessive   Sentences.    1093. 

D.  \"aHditv  of  Sentence  Where  Some  Counts  Good  and  Others  Bad,  1093. 
II.  Punishment,'  1094. 

E.  Particular  Punishments  Considered,   1094. 

3.  Capital  Punishment,  1094. 

b.  Qualification  of   Sentence  by  Court  or  Jury,   1094. 

CROSS  REFERENCES. 

See  the  title  Sentence  and  Punishment,  vol.  10,  p.  1090,  and  references 
there  given. 

In  addition,  see  ante.  Autrefois,  Acquit  and  Convict,  p.  161 ;  Constitu- 
tional Law,  p.  264;  Contempt,  p.  367;  Due  Process  of  Law,  p.  475;  ]\Iilitary 
Law,  p.  862. 

As  to  the  power  of  the  appellate  court  to  convict  of  greater  oft'ense,  see  ante, 
Appeal  and  Error,  p.  34. 

I.  Sentence. 

0.  Conformity  to  Statute  as  to  Character  and  Extent  of  Punishment — 

3.  Sentence  Not  within  Jurisdiction  Void — b.  JJlien  Sentence  zcithin  Juris- 
diction—  (2)  Excessive  Sentences. — See  note  9. 
D.  Validity  of  Sentence  Where  Some  Counts  Good  and  Others  Bad. — 

The  rule  that  on  a  general  verdict  of  guilty  upon  an  indictment  containing  several 
counts,  some  of  which  are  bad,  the  conviction  will  not  be  reversed  if  there  is  one 
good  count  warranting  the  judgment,  originated  in  cases  where  the  findings  of 
guilt  were  by  the  jury,  and  the  sentence  was  by  the  judge.  In  such  cases  the  pre- 
sumption is  that  the  judge  ignored  the  findings  of  the  jury  on  the  bad  counts  and 
sentenced  only  on  those  which-  were  sufficient  to  sustain  the  conviction.  But 
where  the  findings  of  guilt  are  by  the  judge  (as  in  contempt  proceedings)  there 
is  no  room  for  such  a  presumption,  and  hence,  where  it  plainly  appears  from  the 
record,  in  such  cases,  that  a  defendant  has  been  sentenced  upon  a  defective  count, 
the  decree  should  be  reversed. ^"^ 

1094-9.    Excessive  sentences. — Where  it  court. — Gompers  v.  Buck  Stove,  etc.,  Co., 

was  objected  in  the  court  below  that  the  221  U.  S.  418,  55  L.  Ed.  797,  31  S.  Ct.  492. 

original   sentence   exceeded   the   authority  In  the  case  cited,  the  trial  judge  made 

of  the  court,  in  that  it  required  service  at  no    general    finding    that    the    defendants 

hard  labor,  and,  upon  motion  of  the  gov-  were    guilty,    but    in    one    decree    he    ad- 

ernment's    counsel,    that     much      of      the  judged    that    each    defendant    was    respec- 

sentence  was  stricken  out,  and  there  was  tively  guilty  of  the  nine  independent  acts 

no   contention   that   hard   labor   had   been,  set  out  in  separate  paragraphs  of  the  pe- 

or    would    be.    imposed    upon    the    appel-  tition.    Having     found      that      each      was 

lants,  it  was  held  that,  at  most,  only  that  guilty  of  these   separate   acts,   he   consoli- 

part  of  the  sentence  in  excess  of  the  law  dated     the     sentence     without     indicating 

would      be      void.        United      States       v.  how    much    of    the    punishment    was    im- 

Pridgeon,   153   U.   S.  48,  38   L.   Ed.  631,   14  posed    for    the    disobedience    in    any    par- 

S.    Ct.    746:    Harlan  v.    McGourin,   218   U.  ticular  instance.     "We   can  not  suppose." 

S.  442.  54  L.  Ed.  1101,  31   S.   Ct.  44.  said    the    court,    "that    he    found    the    de- 

1094-lOa.    Defective    count — Findings  by  fendants  guilty  of  an  act  charged  unless 

1093 


1101-1116  SBT-OPF,  RECOUPMENT,  ETC.  Vol.  X. 

II.  Punishment. 

E.  Particular  Punishments  Considered — 3.  Capital  Punishment — b. 
Qualification  of  Sentence  by  Court  or  Jury. — Application  to  District  of 
Columbia. — The  provision  for  a  verdict  of  guilty  of  murder  "without  capital 
punishment,"  contained  in  the  federal  criminal  code  of  March  4,  1909  (35  Stat, 
at  L.  1088,  chap.  321,  U.  S.  Comp.  Stat.  Supp.  1911,  p.  1588),  §  330,  which  Code 
in  §  272,  makes  murder  a  crime  against  the  United  States  when  committed  on 
"any  lands  reserved  or  acquired  for  the  exclusive  use  of  the  United  States,  and 
under  the  exclusive  jurisdiction  thereof,"  has  no  application  to  the  District  of 
Columbia,  which,  in  this  respect,  is  governed  by  the  district  code,  which  contains 
no  provision  for  such  a  qualified  verdict. ^^^ 

SEPARABLE   CONTROVERSY.— See  ante.  Removal  op  Causes,  p.  1058. 

SEPARATE  COACHES.— See  ante.  Civil  Rights,  p.  236. 

SEPARATE  ESTATE  OF  MARRIED  WOMEN.— See  the  title  Separate 
Estate  of  Married  Women,  vol.  10,  p.  1104,  and  references  there  given. 

SEPARATE  SCHOOL.— See  ante,  Civil  Rights,  p.  236. 

SEPARATE  TRIALS.— See  the  title  Separate  Trials,  vol.  10,  p.  1111,  and 
references  there  given. 

SEQUESTRATION.— See  the  title  Sequestration,  vol.  10,  p.  1112,  and 
references  there  given. 

SERVICE  OF  PROCESS.— See  post.   Summons  and  Process. 

SESSION.— See  ante,  Clerks  of  Court,  p.  241 ;   Courts,  p.  398. 

SET-OFF,  RECOUPMENT  AND   COUNTERCLAIM. 

I.  By  and  against  Individual,  1094. 

A.  Set-Off,  1094. 

5.  Subject  of  Set-Off  at  Law,  1094. 

a.  In  General,  1094. 

(1)   Mutual   Obligations  in  Same  Right,   1094. 

(4)  Bankruptcy  Statutes,   1095. 

(5)  Expenses  Incurred  by  De  Facto  Officer,   1095. 

6.  Subjects  of  Set-Off  in  Equity,  1095. 

a.  In  General,  1095. 

II.  By  and  against  Government,  1095. 

B.  Set-Off  by  Government,  1095. 

CROSS  REFERENCES. 

See  the  title  Set-Off,  Recoupment  and  Counterclaim,  vol.  10,  p.  1114,  and 
references  there  given. 

I.  By  and  against  Individual. 

A.  Set-Off — 5.  Subject  of  Set-Off  at  Law — a.  In  General — (1)  Mutual 
Obligations  in  Same  Right. — See  note  10. 

he  considered  that  it  amounted  to  a  vio-  constitute  a  disobedience  of  the  injunc- 
lation  of  the  injunction.  Nor  can  we  tion."  Gompers  v.  Buck  Stove,  etc.,  Co., 
suppose  that,  having  found  them  guilty  221  U.  S.  418,  55  L.  Ed.  797,  31  S.  Ct.  492. 
of  these  nine  specific  acts,  he  did  not  1101-42a.  Application  to  District  of 
impose  some  punishment  for  each.  In-  Columbia. — Johnson  z'.  United  States,  225 
stead,  therefore,  of  affirming  the  judg-  U.  S.  405,  56  L.  Ed.  1142,  32  S.  Ct.  748. 
ment  if  there  is  one  good  count,  it  should  1116-10.  Mutual  obligation  in  same 
be  reversed  if  it  should  appear  that  the  right — Liquidated  sum  for  breach  of  con- 
defendants  have  been  sentenced  on  any  tract. — The  amount  necessaril}^  expended 
count   which,    in   law   or   in   fact,    did   not  by  the  owner  to  complete  a  building  con- 

1094 


Vol.  X.  SHELLEY'S  CASE   {RULE  IN).  1117-1131 

(4)  Bankruptcy  Statutes. — For  a  complete  and  exhaustive  treatment  of  the 
right  of  set-off  and  counterclaim  under  the  bankruptcy  law,  see  ante,  Bank- 
ruptcy, p.  168. 

(5)  Expenses  Incurred  by  De  Facto  Officer. — The  actual  cost  of  obtaining  the 
fees  and  emoluments  of  an  officer,  which  would  have  been  entailed  on  any  person 
who  might  have  held  the  office,  may  be  set  off  by  an  ousted  de  facto  officer  in  an 
action  by  the  de  jure  officer  to  recover  the  official  earning.^''* 

6.   Subjects  of  Se^t-Off  in  Equity — a.  In  General. — See  note  32. 

II.  By  and  against  Government. 

B.    Set-Off   by   Government. — Set-Off   against   Indian   Annuities. — See 

ante,  Indians,  p.  641. 

SETTLEMENT  OF  DECEDENTS'  ESTATES.— See  ante.  Executors  and 
Administrators,  p.  564. 

SHARES  OF  STOCK.— See  ante.  Capital— Capital  Stock,  p.  214. 


SHELLEY'S  CASE  (RULE  IN). 

CROSS  REFERENCES. 
See  the  title  Shelley's  Case  (Rule  in),  vol.  10,  p.  1131,  and  references  there 
given. 

Operation  of  Rule. — Where  "the  ancestor,  by  any  gift  or  conveyance,  takes 
an  estate  of  freehold,  and  in  the  same  gift  or  conveyance,  an  estate  is  limited, 
either  mediately  or  immediately  to  his  heirs  in  fee  or  in  tail,  *  *  *  'the  heirs' 
are  words  of  limitation  of  the  estate,  and  not  words  of  purchase. "^'^ 

Application  of  Rule. — There  are  certain  conditions  attached  to  the  Rule 
in  Shelley's  Case  which  give  precision  to  its  application.  One  of  these  is  that  the 
remainder  after  the  particular  estate  must  be  to  heirs  of  the  whole  line  of  inheri- 
table blood,  designating  those  who  are  to  take  from  generation  to  generation. 
And  they  must  be  heirs  of  him  who  takes  the  particular  estate,  and  by  devolution 
from  him.^'^    The  rule  does  not  apply  where  the  particular  estate  is  equitable,  and 

tract  under  an  adjustment  by  the  archi-  reliance  upon  certain  notes  sent  for  dis- 
tect,  after  there  had  been  a  strike  and  count  and  credit,  after  receiving  no  re- 
cessation  of  work  on  account  of  the  sponse  to  its  notification  that  such  notes 
character  and  condition  of  the  labor  would  not  be  discounted,  but  would  be 
furnished  by  the  contractor,  should  be  held  as  collateral,  and  that  credits  should 
credited  against  the  contract  price,  where  either  be  transferred  from  other  banks 
the  contract  provides  that  under  such  or  currency  shipped.  Decree,  Hanover 
circumstances  the  owner  shall  have  full  Nat.  Bank  of  City  of  New  York  v.  Sud- 
authority  "to  arbitrate  or  adjust  the  dath  (1007),  153  F.  1022,  82  C.  C.  A.  fi77, 
matter,"  and  that  the  contractor  shall  affirmed.  Hanover  Nat.  Bank  v:  Suddath. 
make  good  the  loss,  to  be  fixed  by  the  215  U.  S.  122,  54  L.  Ed.  120,  30  S.  Ct.  63. 
architect  or  by  arbitration.  Lupton's  1131-la.  Statement  of  rule  in  Shelley's 
Sons  Co.  z;.  Automobile  Club.  225  U.  S.  Case.— Vogt  v.  Graff.  222  U.  S.  404,  56  L. 
489,  56  L.   Ed.  1177,  32   S.   Ct.  711.  Ed.    249,    32    S.    Ct.    134. 

1117-17a.     Expenses     incurred      by      de  1131-5a.    Application   of   rule. — Vogt   v. 

facto    cfBcer.— Albright    t-.    Sandoval,    216  Graff.  222  U.  S.  404,  56  L.   Ed.  249,  32   S. 

U.    S.    331,    54    L.    Ed.    502,    30    S.    Ct.    318.  Ct.  134. 

See,  also,  ante,  DE  EACTO  OFFICERS,  "Hargrave,    in    his    Law    Tracts,    states 

p.    460.  the  test  to  be   'whether  the  party  entail- 

1119-32.    Subject   of  set-ofT   in   equity. —  ing  means  to  build  a  succession  of  heirs 

No   right   of  equitable   set-off   in   favor   of  on   the   estate   of   the   tenant   for   life.'      If 

a    bank    against    the    receiver    of    its    in-  he    does    not.    but    intends    to    describe    a 

solvent    correspondent    arises    out    of    the  class  taking  from  him,  the  rule  does  not 

voluntary    payment    by    the    former    bank  apply."     Vogt  r.   Graff,   222   U.   S.  404,   56 

of   an    overdraft   of  its   correspondent,    in  L.    Ed.   249,   32    S.    Ct.   134. 

1095 


1131  SHIPS   AND   SHIPPING.  Vol.  X. 

the  estate  in  remainder  legal. ^^  The  testator  must  be  deemed  to  have  used  the 
words  of  inheritance  as  mere  descriptio  personarum,  and  not  in  their  full  legal 
sense,  thus  defeating  the  application  of  the  Rule  in  Shelley's  Case,  where,  after 
giving  outright  to  his  other  children  their  respective  shares  of  his  estate,  he  di- 
rected that  the  share  of  a  specified  son  should  be  paid  over  to  certain  designated 
trustees,  the  income  therefrom  to  be  paid  over  to  such  son,  "the  principal  to  be 
paid  to  his  heirs  after  his  death. '"^"^ 
Rule  of  Property  in  District  of  Columbia. — See  note  6a. 

SHERIFFS  AND  CONSTABLES.— See  the  title  Sheriffs  and  Con- 
STabi.e;s,  vol.  10,  p.  1132,  and  references  there  given. 

SHERIFFS',  CONSTABLES'  AND  MARSHALS'  SALES.— See  the  title 
Sheriffs',  Constables'  and  Marshals'  Sales,  vol.  10,  p.  1134,  and  references 
there  given.     In  addition,  ante.  Executions,  p.  563 ;    Judicial  Sales,  p.  812. 

SHERMAN  ANTITRUST  ACT.— See  ante.  Monopolies  and  Corporate 
Trusts,  p.  874. 

SHIPS  AND  SHIPPING. 

in.  Building,   1097. 

A.  Contracts  for  Construction,  1097. 

V.  Regulation  and  Inspection,  1097. 

B.  Inspection,  1097. 

C.  Equipment  for  Protection  of  Life  and  Property,  1097. 

VI.  Title  and  Ownership,   1098. 
A.  In  General,  1098. 

IX.  Carriage  of  Property  and  Passengers,   1098. 

C.  Liability  for  Nondelivery,  Loss  or  Injury,   1098. 

1.  Liability  as  Insurers,  1098. 

3.  Shipping  Order  and  Condition  of  Goods,  1098. 
10.  Limitation  of  Liability  by  Exceptions  in  Contract,  1098. 

b.    Express  Exceptions  in  Bill  of  Lading  or  Contract  of   Ship- 
ment, 1098. 
(1)   In  General,   1098. 

(3)   Perils  of  Sea,  Navigation,  Lakes,  Rivers,  etc.,  1098. 
(a3^)   Damage  by  Sea  Water,  1098. 
(c)   Explosions,  1098. 

(g)   Negligence  of  Carrier  and  Servants,  1098. 
(h)   Burden  of  Proof,  1098. 

D.  Limitation  of  Carrier's  Liability  by  Act  of  Congress,  1099. 

1.  Limited  Liability  Act,  1099. 

a.  Object  or  Purpose,  1099. 

b.  Constitutionality.   1100. 

c.  Rule  of  Construction,  1100. 

d.  Not  Repealed  by  Subsequent  Acts,   1100. 

e.  Part  of  Maritime  Law,  1100. 

f.  Waters  and  Vessels  to  Which  Applicable,  1100. 
h.  Loss  or  Damage  by  Fire,  1100. 

1131-5b.    Vogt  z'.   Graff,   222  U.    S.   404,           1131-6a.     In    the    District    of    Columbia 

56   L.   Ed.  249,   32   S.   Ct.   134.  the    rule    in    Shelley's    Case    is    a    rule    of 

1131-5C.    Vogt   V.    Graff,    222  U.    S.    404,       property.      Vogt   v.    Graff.   222   U.    S.    404, 

56    L.    Ed.    249,    32    S.    Ct.    134.  56   L.    Ed.   249,   32    S.    Ct.    134,   affirming. 

1096 


Vol.  X.  SHIPS  AND  SHIPPING.  1159 

i.    Loss  or  Damage   for  Which  Liability  Limited  to  Value  of 
Ship  and  Freight,   1100. 

(1)  In  General,  1100. 

(2)  Priority  or   Knowledge  of  Owner,   1102. 

(3)  What  Constitutes  Value  of  Ship  and  Freight,  1103. 

(b)  What   Freight   Estimated,    1103. 

(c)  Passage   Aloney,   1103. 

(e)    Ship   Subsidy  jMoney,   1104. 
(3>4)   Freighters  Entitled  to  Participate,   1104. 

(5)  Personal   Injuries  and  Death  by  Wrongful  Act,    1104. 

(6)  Transfer  of  Interest  to  Trustee  or  Payment  into  Court, 

1104. 

(7)  Loss  of  Ship,  1105. 

k.  Proceedings  to   Limit  Liability,   1105. 

(1)  Nature  of   Proceedings,   1105. 

{1/4)   Claims   Provable  in   Proceedings  to  Limit,    1105. 

(2)  Forms  and  Rules  of  Procedure,   1105. 

(3)  Jurisdiction,  Venue  and  Courts.   1105. 

(7)  Necessity    for  Ascertaining  Co-Existing  Claims,   1105. 
(b)   Contesting  All  Liability,   1105. 

(8)  Effect  of  Proceedings,   1105. 

(a)   Superseding  Actions  in  Other  Courts,   1105. 
aa.  In  General,   1105. 

bb.    Duty  of   Other   Courts   to   Suspend   Proceed- 
ings, 1106. 
cc.     Staying  or   Restraining   Proceedings   in   Other 
Courts,   1107. 
2.  Harter  Act,  1107. 

c.  Exceptions  Limiting  Liability  of   Carrier,   1107. 
e^.  Duty  of  Master  of  Stranded  Vessel,   1108. 
f.  Right  to  General   Average   Contribution,   1108. 
i.  Personal   Injuries  and  Loss  of  Life,  1108. 

CROSS   REFERENCES. 

See  the  title  Ships  and  Shipping,  vol.  10,  p.  1148,  and  references  there  given. 

In  addition,  see  post.  Working  Contracts. 

As  to  situs  for  taxation,  see  ante.  Constitutional  Law,  p.  264;  Due^  Proc- 
ess 01*  Law,  p.  475;  Interstate  and  Foreign  Commerce,  p.  689;  post,  Taxa- 
tion. 

III.    Building. 

A.  Contracts  for  Construction. — See  post.  Working  Contracts. 

V.     Regulation   and   Inspection. 

B.  Inspection. — Foreign  Steam  Vessels. — The  failure  especiallv  to  enu- 
merate Rev.  St.  U.  S.,  §  4405  ( U.  S.  Comp.  St.  1901,  p.  3017),  giving  the 
force  of  law  to  regulations  of  the  board  of  supervising  inspectors,  in  Act  Aug. 
7,  1882,  c.  441,  22  Stat.  346  _(U.  S.  Comp.  St.  1901,  p.  3015),  making  applicable 
to  foreign  vessels  the  provisions  of  certain  enumerated  sections  relating  to  the 
inspection  of  steam  vessels,  does  not  render  such  section  inapplicable  to  foreign 
vessels.^2^ 

C.  Equipment  for  Protection  of  Life  and  Property. — The  sufficiency 
of  the  equipment  of   a   vessel   with   lifeboats,   life   rafts,   and   boat  disengaging 

1159-32a.    La   Bourgosne,   210   U.   S.   95,   52  L.  Ed.  973,  28  S.  Ct.  664,  affirming  144 
Fed.    781,    75    C.    C.    A.    647. 

1007 


1159-1183  SHIPS  AND   SHIPPING.  Vol.  X. 

apparatus  is  to  be  measured  by  the  regulations  adopted  pursuant  to  U.  S.  Rev. 
Stat.,  §  4488,  U.  S.  Comp.  Stat.  1901,  p.  3055,  by  the  board  of  supervising 
inspectors,  which  regulations,  under  §  4405  (U.  S.  Comp.  Stat.  1901,  p.  3017), 
when  approved  by  the  secretary  of  the  treasury,  "have  the  force  of  law.''^"*^ 

VI.  Title  and  Ownership. 

A.  In  General. — Under  Contract  for  Construction. — See  post,  Work- 
ing Contracts. 

IX.    Carriage  of  Property  and  Passengers. 

C.  Liability  for  Nondelivery,  Loss  or  Injury — 1.  Liability  as  Insure;rs. 
— See  note  33. 

3.  Shipping  Order  and  Condition  of  Goods. — See  post,  "Burden  of  Proof," 
IX,  C,  10,  b,  (3),  (h). 

10.  Limitation  of  Liability  by  Exceptions  in  Contract — b.  Express  Ex- 
ceptions in  Bill  of  Lading  or  Contract  of  Shipment — (1)  In  General. — See 
note  64. 

(3)  Perils  of  Sea,  Navigation,  Lakes,  Rivers,  etc. —  (a^)  Damage  by  Sea 
Water. — Damage  to  cargo  by  sea  water  is  not  necessarily  damage  by  a  peril 
or  danger  of  the  seas.*'^'^ 

(c)    Explosions. — See  note  72. 

(g)    Negligence  of  Carrier  and  Servants. — See  post,  "Harter  Act,"  IX,  D,  2. 

(h)  Burden  of  Proof. — Where  goods  are  received  in  good  order  on  board 
of  a  vessel  under  a  bill  of  lading  agreeing  to  deliver  them,  at  the  termination 
of  the  voyage,  in  like  good  order  and  condition,  and  the  goods  are  damaged 
on  the  voyage,  in  a  proceeding  to  recover  for  the  breach  of  the  contract  of 
affreightment,  after  the  amount  of  damage  has  been  established,  the  burden 
lies  upon  the  carrier  to  show  that  it  was  occasioned  by  one  of  the  perils  for 
which  he  was  not  responsible.'^'^^ 

1159-34a.       Judgment,     La     Bourgogne  546,  29  S.  Ct.  363,  quoting  Liverpool,  etc., 

(1906)    144    F.    781,    75    C.    C.    A.    647,    af-  Steam    Co.  i:    Phenix    Ins.  Co.,    129  U.    S. 

firmed.     La    Bourgogne,    210  U.    S.  95,    52  397,  437,  32  L.  Ed.  788,  9   S.   Ct.  469. 

L.  Ed.  973,  28  S.  Ct.  664.  1181-68a.    Perils  of  sea,  etc.— The   Fol- 

1175-33.  Liability  on  insurer.— "As  said  mina,  212  U.  S.  354,  53  L.  Ed.  546,  29  S. 
in  Liverpool,  etc.,  Steam  Co.  v.  Phenix  Ct.  363,  following  The  G.  R.  Booth,  171 
Ins.  Co.,  129  U.  S.  397,  437,  32  L  Ed.  788,  U.  S.  450,  43  L  Ed.  234,  19  S.  Ct.  9. 
9  S.  Ct.  469:  'By  the  settled  law,  in  the  1182-72.  Explosions.— "In  the  case  of 
absence  of  some  valid  agreement  to  the  The  G.  R.  Booth,  171  U.  S.  450,  43  L.  Ed. 
contrary,  the  owner  of  a  general  ship,  234,  19  S.  Ct.  9,  *  *  *  the  facts  were  that 
carrying  goods  for  hire,  whether  em-  the  explosion  of  a  case  of  detonators, 
ployed  in  internal,  in  coasting,  or  in  for-  which  were  part  of  a  cargo,  burst  open 
eign  commerce,  is  a  common  carrier,  the  side  of  the  ship  below  the  water  line, 
with  the  liability  of  an  insurer  against  all  and  the  sea  water,  rapidly  flowing  in 
losses,  except  only  such  two  irresistible  through  the  opening  made  by  the  ex- 
causes  as  the  act  of  God  and  public  ene-  plosion,  injured  the  plaintiff's  sugar.  It 
mies.  *  *  *  Propeller  Niagara  v.  Cordes,  was  held  that  although  the  explosion  and 
21  How.  7,  23,  16  L.  Ed.  41;  The  Lady  the  inflow  of  the  water  were  concurrent 
Pike,  21  Wall.  1,  14,  22  L.  Ed.  499.' "  causes  of  the  damage,  yet  'the  explosion. 
The  Folmina,  212  U.  S.  354,  53  L  Ed.  and  not  the  sea  water,  was  the  proximate 
546,  29   S.   Ct.   363.  cause    of   damage,    and    that    this    damage 

1181-64.    Special  exceptions  in  contract.  was   not   occasioned  by  the   perils   of  the 

— "Special    contracts   between   the    carrier  sea   within   the   exceptions    in   the   bill   of 

and  the  customer,  the  terms  of  which  are  lading.'"      The    Folmina,    212    U.    S.    354, 

just  and  reasonable,   and  not   contrary   to  53   L.   Ed.   546,  29   S.   Ct.   363. 

public   policy,    are   upheld;    such    as   those  1183-77a.    The    Folmina.    212    U.    S.    354. 

exempting  the  carrier  from  responsibility  53    L.    Ed.    546,    29    S.    Ct.    363,    following 

for    losses    happening    from    accident,    or  Clark    v.    Barnwell,    12    How.    272,    13    L. 

from    dangers    of   navigation   that   no   hu-  Ed.    985. 

man  skill  or  diligence  can  guard  against."  Damage  by  sea  water. — A  carrier  must 

The    Folmina,    212    U.    S.    354,    53    L    Ed.  prove  that  damage  to  a  cargo  from  water 

1098 


\'ol.  X. 


SHIPS   AND   SHIPPING. 


1183-1184 


Loss  from  Shipping  Order  or  Condition  of  Goods. — Where  goods  are 
delivered  in  a  damaged  condition  plainly  caused  by  breakage,  rust,  or  decay, 
their  condition  brings  them  within  an  exception  exempting  from  that  character 
of  loss,  as  the  very  fact  of  the  nature  of  the  injury  shows  the  damage  to  be 
prima  facie  within  the  exception,  and  hence  the  burden  is  upon  the  shipper 
to  establish  that  the  goods  are  removed  from  its  operation  because  of  the 
negligence  of  the  carrier.'"'' 

D.  Limitation  of  Carrier's  Liability  by  Act  of  Congress — 1.  Limited 
Liability  Act — a.  Object  or  Purpose. — The  object  of  the  law  was  to  encour- 
age shipbuilding  and  to  induce  capitalists  to  invest  money  in  this  branch  of 
industry.^^^ 


was  occasioned  by  the  perils  of  the  sea 
within  an  exception  in  the  bill  of  lading 
against  dangers  and  accidents  of  the  seas. 
The  Folmina,  212  U.  S.  354,  53  L.  Ed. 
546,   29    S.    Ct.   363. 

"As  illustrated  in  the  case  of  The  G. 
R.  Booth,  171  U.  S.  450,  43  L.  Ed.  234, 
19  S.  Ct.  9,  proof  merely  of  damage  to 
cargo  by  sea  water  does  not  neces- 
sarily tend  to  establish  that  such  dam- 
age was  caused  by  a  peril  or  danger  of 
the  seas."  The  Folmina,  212  U.  S.  354, 
53    L.    Ed.   546,   29   S.    Ct.   363. 

"The  efficient  cause  of  the  damage 
must  be  sought  in  those  conditions  or 
events  which  caused  or  permitted  the  en- 
trance of  sea  water.  It  can  not  in  rea- 
son be  said  that  sea  water  was  the  eth- 
cient,  the  proximate  cause  of  the  cargo 
damage,  because  no  other  cause  for  that 
damage  has  been  disclosed.  As  there 
must  have  been  an  efficient  cause  per- 
mitting the  sea  water  to  enter,  so  long 
as  that  cause  remains  undisclosed,  it  can 
not  be  said  that  the  damage  has  been 
shown  to  have  resulted  from  causes 
within  the  scope  of  a  sea  peril;  *  *  * 
that  it  is  the  duty  of  the  carrier  to  sus- 
tain the  burden  of  proof  by  showing  a 
connection  between  damage  by  the  sea 
water  and  the  exception  against  set 
perils.  ,  For  the  distinction  between  the 
two,  see  Tilt;'  Henry  B.  Hyde,  32  C.  C. 
A.  534,  61  U.  S.  App.  147,  90  Fed.  114, 
116;  The  Lennox,  90  Fed.  308,  309;  The 
Patria,  68  C.  C.  A.  397,  132  Fed.  971, 
972."  The  Folmina,  212  U.  S.  354,  53  L 
Ed.    546,    29    S.    Ct.    363. 

"The  inability  of  the  court  below  to 
determine  the  cause  of  the  entrance  of 
the  sea  wafer  would  imply  that  the  evi- 
dence did  not  disclose  in  any  manner 
how  the  sea  water  came  into  the  ship. 
In  other  words,  while  there  was  a  cer- 
tainty from  the  proof  of  a  damage  by  the 
sea  water,  there  was  a  failure  of  the  proof 
to  determine  whether  the  presence  of  the 
sea  water  in  the  ship  was  occasioned  by 
an  accident  of  the  sea,  by  negligence,  or 
by  any  other  cause.  Manifestly,  how- 
ever, the  presence  of  the  sea  water  must 
have  resulted  from  some  cause,  and  it 
would  be  mere  conjecture  to  assume 
simply    from    the    fact    that    damage    was 


done  by  sea  water  that  therefore  it  was 
occasioned  by  a  peril  of  the  sea.  As  the 
burden  of  showing  that  the  damage  arose 
from  one  of  the  excepted  causes  was 
upon  the  carrier,  and  the  evidence,  al- 
though establishing  the  damage,  left  its 
efficient  cause  wholly  unascertained,  it 
follows  that  the  doubt  as  to  the  cause  of 
the  entrance  of  the  sea  water  must  be 
resolved  against  the  carrier.  The  Edwin 
I.  Morrison,  153  U.  S.  199,  212,  38  L.  Ed. 
688,  14  S.  Ct.  823."  The  Folmina,  212 
U.   S.  354,  53  L.   Ed.  546,  29  S.   Ct.  363. 

"And  see  further,  the  following  cases, 
applying  the  principle  just  stated,  and 
holding  that  because  the  damage  to 
cargo  was  shown  to  have  been  oc- 
casioned by  sea  water,  without  any  satis- 
factory proof  as  to  the  cause  of  its  pres- 
ence, in  view  of  the  burden  resting  upon 
the  carrier,  conjecture  would  not  be  per- 
mitted to  take  the  place  of  proof:  The 
Sloga,  10  Ben.  315,  Fed.  Cas.  No.  12,955. 
The  Compta,  4  Sawy.  375,  Fed.  Cas.  No. 
3,069;  Bearse  v.  Ropes,  1  Sprague,  331, 
Fed.  Cas.  No.  1,192;  The  Zone,  2  Sprague, 
19,  Fed.  Cas.  No.  19,220;  The  Svend,  1 
Fed.  54;  The  Centennial,  7  Fed.  601;  The 
Lydian  Monarch,  23  Fed.  298;  The  Queen, 
78  Fed.  155,  165,  168,  affirmed  in  36  C.  C. 
A.  135,  94  Fed.  180,  196;  The  Phoenicia, 
90  Fed.  116,  119,  40  C.  C.  A.  221,  99  Fed. 
1005;  Insurance  Co.  of  N.  A.  v.  Easton  & 
M.  Transp.  Co.,  97  Fed.  653;  The  Pres- 
que  Isle,  140  Fed.  202,  205."  The  Fol- 
mina, 212  U.  S.  354,  53  L.  Ed.  546,  29  S. 
Ct.    363. 

1183-.77b.  The  Folmina,  212  U.  S.  354, 
53    L.    Ed.    546,    29    S.    Ct.    363. 

1184-83a.  Effect  or  purpose  and  his- 
tory.— Richardson  v.  Harmon,  222  U.  S. 
96,  56  L.  Ed.  110,  32  S.  Ct.  27,  following 
Butler  V.  Boston,  etc..  Steamship  Co.,  130 
U.   S.  527,  32  L.   Ed.  1017,  9   S.  Ct.  612. 

"The  law  on  the  subject  is  now  em- 
bodied in  §§  4282-4287,  Rev.  Stat.  (U.  S. 
Comp.  Stat.  1901,  pp.  2943,  2944)  *  *  *. 
These  sections  are  a  substantial  re-enact- 
ment of  the  act  of  March  3,  1851,  9  Stat, 
at  L.  p.  635,  chap.  43,  U.  S.  Comp.  Stat. 
1901,  p.  2943.  The  purpose  of  the  act  of 
1851,  in  according  to  shipowners  the  right 
to  limit  their  liability  in  whole  or  in  part, 
and   the  meaning  of  that   act,   as  well  as 


1099 


1184-1186 


SHIPS  AND   SHIPPING. 


Vol.  X. 


b.  Constitutionality. — See  note  84. 

c.  Rule  of  Construction. — See  note  85. 

d.  Not  Repealed  by  Subsequent  Acts. — See  note  86. 

e.  Part  of  Maritime  Law. — Note  87. 

f.  Waters  and  Vessels  to  Which  Applicable.— Foreign  Vessels.— See  note  92. 

Equipment  for  Protection  of  Life  and  Property. — Oujere,  whether  ves- 
sels not  fully  equipped  with  the  lifeboats,  life  rafts,  and  disengaging  apparatus 
required  by  the  laws  of  the  United  States  should  be  accorded  the  limitation  of 
liability.^sa 

h.    Loss  or  Damage  by  Fire. — See  post,  ''In  General,"  IX,  D,  1,  i,   (1). 
i.   Loss  or  Damage  for  Which  Liability  Limited  to  Value  of  Ship  and  Freight 
—  (1)    In   General. — Under  the  original  law  of  limited   responsibility  of   ship- 


the  purpose  and  meaning  of  the  sections 
of  the  Revised  Statutes  embodying  the 
provisions  of  the  act  of  1851,  have  been 
often  before  this  court  and  have  been 
conclusively  adjudicated.  Moore  v. 
American  Transp.  Co.,  .24  How.  1,  16 
L.  Ed.  674;  Norwich  Co.  v.  Wright,  13 
Wall.  104,  20  L.  Ed.  585;  The  'Benefactor,' 
103  U.  S.  239,  36  L.  Ed.  351;  The  'Scot- 
land,' 105  U.  S.  24,  26  L.  Ed.  1001;  The 
'North  Star,'  106  U.  S.  17,  27  L.  Ed. 
91,  1  S.  Ct.  41;  Providence,  etc..  Steam- 
ship Co.  V.  Hill  Mfg.  Co.,  109  U.  S. 
578,  27  L.  Ed.  1038,  3  S.  Ct.  379;  The 
City  of  Norwich,  118  U.  S.  468,  30  L. 
Ed.  134,  6  S.  Ct.  1150;  Butler  v.  Boston, 
etc..  Steamship  Co.,  130  U.  S.  527,  32  L. 
Ed.  1017,  9  S.  Ct.  612."  La  Bourgogne, 
210  U.  S.  95,  52  L.  Ed.  973,  985,  28  S.  Ct. 
664. 

"In  Moore  v.  American  Transp.  Co., 
24  How.  1,  41,  16  L.  Ed.  674,  Mr.  Justice 
Nelson,  delivering  the  opinion  of  the 
court,  thus  stated  the  purpose  of  the 
limitation  of  liability  which  the  act 
granted:  'The  act  was  designed  to 
promote  the  building  of  ships,  and  to  en- 
courage persons  engaged  in  the  business 
of  navigation,  and  to  place  that  of  this 
country  upon  a  footing  with  England 
and  on  the  continent  of  Europe.' "  La 
Bourgogne,  210  U.  S.  95,  52  L.  Ed.  973, 
28  S.   Ct.   664. 

1184-84.  Applying  to  a  claim  for  a 
death  on  the  high  seas,  due  to  a  tortious 
collision  of  two  vessels  belonging  to 
Delaware  corporations,  the  provision  of 
Delaware  Act  of  January  26,  1186,  as 
amended  by  the  Act  of  March  9,  1901, 
authorizing  personal  representatives  to 
maintain  an  action  and  recover  damages 
for  a  death  occasioned  by  unlawful  vio- 
lence or  negligence,  does  not  render  such 
provision  repugnant  to  either  the  com- 
merce or  admiralty  clauses  of  the  fed- 
eral constitution,  where  congress  has  not 
legislated  upon  the  subject.  The  Hamil- 
ton, 207  U.  S.  398,  52  L.  Ed.  264,  28  S. 
Ct.  133.  See  post,  "Personal  Injuries  and 
Death  by  Wrongful  Act."  IX.  D.  1,  i,  (5). 

1184-85.  Rule  of  construction  and 
manner  of  administration. — "The  prac- 
tical value  of  the  law  will  largely  depend 


on  the  manner  in  which  it  is  administered. 
If  the  courts  having  the  execution  of  it 
administer  it  in  a  spirit  of  fairness,  with 
the  view  of  giving  to  shipowners  the  full 
benefit  of  the  immunities  intended  to  be 
secured  by  it,  the  encouragement  it  will 
afiford  to  commercial  operations  (as 
before  stated)  will  be  of  the  last  import- 
ance; but,  if  it  is  administered  with  a 
tight  and  grudging  hand,  construing 
every  clause  most  unfavorably  against 
the  shipowner,  and  allowing  as  little  as 
possible  to  operate  in  his  favor,  the  law 
will  hardly  be  worth  the  trouble  of  its  en- 
actment." La  Bourgogne,  210  U.  S.  95. 
52  L.  Ed.  973,  28  S.  Ct.  664,  following 
Providence,  etc..  Steamship  Co.  v.  Hill 
Mfg.  Co.,  109  U.  S.  578,  27  L.  Ed.  1038,  3 
S.  Ct.  379. 

1184-86.  The  18th  section  of  the  Act  of 
June  26,  1884  (23  Stat,  at  L.  53-57,  ch.  121, 
U.  S.  Comp.  Stat.  1901,  2804,  2945,  oper- 
ates as  an  amendment  of  the  existing  law, 
and  not  as  a  repeal  of  the  qualifications 
found  in  that  law.  "This  is  the  view 
adopted  by  three  circuit  courts  of  appeal, 
in  the  cases  of  The  Republic,  9  C.  C.  A. 
386,  20  U.  S.  App.  561,  61  Fed.  109,  in  the 
the  second  circuit,  the  Annie  Faxon, 
31  C.  C.  A.  366,  44  U.  S.  App.  591, 
75  Fed.  312,  in  the  ninth  circuit,  and  in 
Great  Lakes  Towing  Co.  v.  Mill  Transp. 
Co.,  22  L.  R.  A.  (N.  S.)  769,  83  C.  C.  A. 
607,  155  Fed.  11,  in  the  sixth  circuit,  as 
well  as  by  a  number  of  district  courts, 
among  them  being  the  case  of  The  Amos 
D.  Carver,  35  Fed.  665,  and  Re  Meyer,  74 
F'ed.  881."  Richardson  v.  Harmon,  222 
U.  S.  96,  56  L.  Ed.  110,  32  S.  Ct.  27. 

1184-87.  Richardson  v.  Harmon,  222  U. 
S.  96,  56  L.  Ed.  110,  32  S.  Ct.  27,  follow- 
ing Butler  V.  Boston,  etc..  Steamship  Co., 
130  U.  S.  527,  32  L.  Ed.  1017.  9  S.  Ct.  612. 

1186-92.  Foreign  vessels. — "It  was 
settled  in  The  'Scotland,'  105  U.  S.  24,  26 
L.  Ed.  1001,  that  a  foreign  ship  is  entitled 
to  obtain  in  the  courts  of  the  United 
States  the  benefit  of  the  law  for  the  lim- 
itation of  liability  of  shipowners."  La 
Bourgogne,  210  U.  S.  95,  52  L.  Ed.  973,  28 
S.  Ct.  664. 

1186-93a.  La  Bourgogne,  210  U.  S.  95, 
52  L.   Ed.  973,  28  S.  Ct.  664. 


1100 


Vol.  X. 


SHIPS  AND  SHIPPING. 


1187 


owners  the  owners  are  not  to  be  liable  beyond  their  interest  in  the  ship  and 
freight  for  the  acts  of  the  master  or  crew,  done  without  their  privity  or  knowl- 
edge. It  extended  to  liability  for  every  kind  of  maritime  tort,  loss,  damage 
and  injury.2^  Sections  4283  and  4284,  Rev.  Stat.,  as  amended  by  the  18th 
section  of  the  act  of  June  26,  1884  (23  Stat,  at  L.  57,  chap.  121,  U.  S.  Comp. 
Stat.  1901,  p.  2945),  include  "any  or  all  debts  and  liabilities"  of  the  owner, 
incurred  on  account  of  the  ship,  without  his  privity  or  fault. ^'' 

Nonmaritime  Torts. — The  limitation  of  a  shipowner's  liability  for  mari- 
time torts  not  the  result  of  his  own  fault,  provided  by  Rev.  St.,  §§  4283-4285 
(U.  S.  Comp.  St.  1901,  pp.  2943,  2944),  was  extended  to  nonmaritime  torts 
by  the  provisions  of  Act  June  26,  1884,  c.  121,  §  18,  23  Stat.  57  (U.  S.  Comp. 
St.  1901,  p.  2945),  limiting  the  individual  liability  of  a  shipowner  for  "any 
or  all  debts  and  liabilities,"  except  wages  and  liabilities  incurred  prior  to  such 
enactment,  to  his  share  in  the  vessel,  and  the  aggregate  liabilities  of  all  the 
owners  of  a  vessel  on  account  of  the  same  to  the  value  of  the  vessel  and  freight 
pending. 2*^ 

Obligations  Ex  Contractu. — The  Limited  Liability  xA.ct,  as  originally  enacted, 
did  not  include  the  owner's  individual  liability  for  obligations  ex  contractu  in- 
curred without  his  knowledge  or  privity. ^"^ 

Salvage   Claim.— Under  the  Act  of  June  26,   1884   (23  Stat,  at  L.  57,  ch. 


1187-3a.  "In  Butler  v.  Boston,  etc., 
Steamship  Co.,  130  U.  S.  527,  553,  32  L. 
Ed.  1017,  9  S.  Ct.  612,  the  words  'the  lia- 
bility of  the  owner  *  *  *  shall  in  no  case 
exceed,'  etc..  were  construed  as  extend- 
ing to  any  liability  'for  any  act,  matter, 
or  loss,  damage  or  forfeiture,  done  or  in- 
curred;' and  as  therefore  providing  that 
the  'owner  shall  not  be  liable  beyond  his 
interest  in  the  ship  and  freight  for  the 
acts  of  the  master  or  crew,  done  without 
his  privity  or  knowledge.'  "  Richardson 
r.  Harmon,  222  U.  S.  96,  56  L.  Ed.  110,  32 
S.  Ct.  27. 

Collision.— La  Bourgogne,  210  U.  S.  95, 
52  L.  Ed.  973,  28  S.  Ct.  664.  See  the  title 
CONFLICT  OF  LAWS,  vol.  3,  p.  1081. 
And  see  ante,  CONFLICT  OF  LAWS,  p. 
250. 

1187-3b.  Richardson  v.  Harmon,  222 
U.  S.  96,  56  L  Ed.  110.  32  S.  Ct.  27;  The 
San  Pedro.  223  U.  S.  365,  56  L.  Ed.  473, 
32  S.  Ct.  275. 

"The  learislation  is  in  pari  materia  with 
the  Act  of  1851  (9  Stat,  at  L.  635.  chap. 
43,  §  3),  as  carried  into  the  Revised  Stat- 
utes as  §  4283,  et  seq.  (U.  S.  Comp.  Stat. 
1901.  p.  2943),  and  must  be  read  in  con- 
nection with  that  law;  and  so  read,  should 
be  given  such  an  effect  not  incongrvious 
with  that  law,  so  far  as  consistent  with 
the  terms  of  the  later  legislation.  The 
former  law  embraced  liabilities  for  mar- 
itime torts,  but  excluded  both  debts  and 
liabilities  for  nonmaritime  torts.  The 
section  under  consideration  includes 
debts,  save  wages  of  seamen  and  liabili- 
ties of  an  owner  incurred  prior  to  the 
passage  of  the  law.  The  avowed  purpose 
of  the  original  act  was  to  encourage 
American  investments  in  ships.  This 
was  accomplished  by  confining  the   own- 


er's individual  liability,  when  not  the  re- 
sult of  his  own  fault,  in  the  instances 
enumerated,  to  his  share  in  the  ship.  The 
same  public  policy  is  declared  to  be  the 
motive  of  the  act  of  which  this  section  is 
a  part.  True,  a  liability  may  arise  out  of 
a  contract  as  well  as  from  a  tort.  But  a 
liability  ex  contractu  is  included  ex  vi 
termini,  and  the  addition  of  the  words 
'and  liabilities'  would  be  tautology  un- 
less meant  to  embrace  liabilities  not  aris- 
ing from  'debts.'  "  Richardson  v.  Har- 
mon, 222  U.  S.  96,  56  L.  Ed.  110,  32  S. 
Ct.  27. 

1187-3C.  Richardson  v.  Harmon,  222  U. 
S.  96,  56  L.  Ed.  110,  32  S.  Ct.  27. 

"The  case  of  Ex  parte  Phenix  Ins.  Co., 
118  U.  S.  610,  30  L  Ed.  274,  7  S.  Ct.  25. 
which  was  a  petition  for  the  benefits  of 
the  Limited  Liability  Act  and  to  stay 
suits  at  common  law  against  the  owner 
for  liability  by  fire  carried  to  buildings 
on  land,  communicated  from  the  ship,  has 
been  cited  as  holding  that  the  limited  lia- 
bility statute  did  not  apply  to  such  a 
claim,  and  that  a  court  of  admiralty  could 
not  draw  to  itself  jurisdiction  over  any 
such  claim.  But  that  liability  was  incur- 
red on  September  20,  d880,  a  date  ante- 
cedent to  the  Act  of  1884,  which  act  ex- 
pressly excluded  liabilities  which  arose 
before  its  passage.  That  the  decision  by 
this  court  was  not  made  until  November. 
1886,  and  that  the  opinion  makes  no  ref- 
erence to  the  Act  of  1884,  is  of  no  import- 
ance, since  the  act  had  no  application." 
Richardson  v.  Harmon,  222  U.  S.  96,  56 
L  Ed.  110,  32  S.  Ct.  27. 

1187-3d.  Richardson  v.  Harm.on,  222 
U.  S.  96,  56  L.  Ed.  110,  32  S.  Ct.  27.  See 
preceding  paragraph. 


1101 


1187-1188 


SHIPS   AND   SHIPPING. 


Vol.  X. 


121,  U.  S.  Comp.  Stat.  1901,  p.  2945),  a  salvage  claim  is  one  to  which  the 
Limited  Liability  Act  applies,  even  if  such  claim  was  not  included  within  the 
meaning  of  §  4283,  Rev.  Stat.^*" 

(2)  Priority  or  Knowledge  of  Onmer. — Mere  negligence  of  itself  does  not 
necessarily  establish  the  existence  on  the  part  of  the  owner  of  a  vessel  of  "priv- 
ity or  knowledge,"  within  the  meaning  of  Rev.  St.  U.  S.,  §  4283  (U.  S.  Comp. 
St.  1901,  p.  2943),  according  to  shipowners  a  limited  exemption  from  liability."** 

Regulations  as  to  Speed. — The  duty  on  the  part  of  a  steamship  com- 
pany seeking  limitation  of  liability  for  claims  arising  out  of  a  collision  in  a 
fog,  to  have  made  regulations  directing  that  its  steamers  be  not  run  at  an  im- 
moderate rate  of  speed  in  a  fog,  in  order  to  negative  privity  or  knowledge  of  fault, 
was  sufficiently  discharged  by  promulgating  regulations  which,  in  terms,  re- 
iterated the  international  rule,  and  called   for  compliance  with  its  provisions.'*'' 

Presumptions  and  Burden  of  Proof. — The  claimants  in  proceedings  by 
a  steamship  company  to  limit  its  liability  for  claims  arising  out  of  a  collision 
are  charged  with  the  burden  of  proving  that  the  regulations  promulgated  by 
the  steamship  company  for  the  conduct  of  its  business,  which  exacted  compliance 
by  the  captains  of  its  vessels  with  the  international  rules,  were  not  promulgated 
in  good  faith,  or  that  a  willful  departure  from  their  requirements  was  in- 
dulged in,  and  was  brought  home  to,  or  was  countenanced  by,  the  company.*" 
Privity  and  knowledge  of  the  habit  of  running  its  vessels  at  an  immoderate 
speed  in  a  fog  can  not  be  imputed  to  a  steamship  company  so  as  to  defeat  its 
right  to  limit  its  liability  for  claims  arising  out  of  a  collision  in  a  fog,  from 
the  provisions  of  the  contract  for  subsidy  with  the  French  government,  which 
requires   vessels,   which   are   only   obliged   to    develop,   under    forced   draft,   on 


1187-3e.  The  San  Pedro,  223  U.  S.  365, 
56  L.  Ed.  473,  32  S.  Ct.  275. 

1188-4a.  La  Bourgogne,  210  U.  S.  95, 
52  L.  Ed.  973,  28  S.  Ct.  664,  affirming  144 
Fed.  781,  75  C.  C.  A.  647,  following  Prov- 
idence, etc..  Steamship  Co.  v.  Hill  Mfg. 
Co.,  109  U.  S.  578,  27  L.  Ed.  1038,  3  S.  Ct. 
379. 

In  determining  the  Providence,  etc., 
Steamship  Co.  z'.  Hill  Mfg.  Co.,  109  U.  S. 
578,  27  L.  Ed.  1038,  3  S.  Ct.  379,  it  became 
necessary  to  decide  whether,  if  there  was 
negligence  of  the  owner  of  a  vessel  in 
case  of  fire,  within  the  meaning  of  the 
Isf  section  of  the  Act  of  1851,  such  negli- 
gence was  the  necessary  equivalent  of 
privity  and  knowledge  of  the  owner,  as 
expressed  in  the  3d  section  of  the  act.  It 
was  held  that  the  two  provisions  were 
not  necessarily  coterminous,  that  negli- 
gence under  the  1st  section  of  the  act 
might  exist  so  as  to  prevent  the  unqviali- 
fied  limitation  given  by  that  section,  and 
yet  the  owner  of  the  vessel  be  entitled  to 
the  more  limited  exemption  given  by  the 
3d  section,  which  depended  upon  the  ab- 
sence of  privity  or  knowledge.  In  other 
words,  it  was  decided  that  although  a 
loss  might  have  happened  by  the  negli- 
gence of  the  owner  of  the  vessel,  such 
loss  might  yet  not  have  been  occasioned 
with  the  knowledge  or  privity  of  such 
owner.  La  Bourgogne,  210  U.  S.  95,  52 
L.   Ed.  973,  28  S.  Ct.  664. 

"Nothing  to  the  contrary  is  properly 
to    be    deduced    from     the    case    of    The 


Main  v.  Williams,  152  U.  S.  122,  38  L. 
Ed.  381,  14  S.  Ct.  486,  *  *  *  for  that  case 
did  not  purport  in  the  slightest  degree  to 
overrule  or  qualify  the  previous  deci- 
sions, and  was  concerned,  not  with  the 
meaning  of  the  words  'privity  and  knowl- 
edge,' but  with  the  rule  to  be  applied  in 
determining  what  constituted  pending 
freight  within  the  meaning  of  the  law  for 
the  limitation  of  liability."  La  Bourgogne, 
210  U.   S.  95,  52  L.   Ed.  973,  28  S.  Ct.  664. 

"It  may  be  that  there  are  general  ex- 
pressions found  in  some  cases  in  the 
lower  federal  courts,  decided  both  be- 
fore and  after  the  Hill  Case,  which  lend 
color  to  the  assumption  that  privity  and 
knowledge,  as  defined  in  the  statute,  is 
but  the  equivalent  of  mere  negligence. 
Such  of  the  cases  relied  upon,  however, 
as  were  decided  before  the  authoritative 
interpretation  of  the  statute  in  the  Hill 
Case,  were  necessarily  overruled  by  that 
decision,  and  so  far  as  those  decided  since 
may  be  inconsistent  with  the  previous 
rulings  of  the  court,  they  are  clearly  not 
entitled  to  weight."  La  Bourgogne,  210 
U.  S.  95,  52  L.  Ed.  973,  28  S.  Ct.  664. 

1188-4b.  Judgment,  La  Bourgogne 
C1906'),  144  F.  781,  75  C.  C.  A.  647,  af- 
firmed. La  Bourgogne,  210  U.  S.  95,  52 
L.  Ed.  973,  28  S.  Ct.  664. 

1188-4C.  Judgment,  La  Bourgogne 
(1906).  144  F.  781,  75  C.  C.  A.  647,  af- 
firmed. La  Bourgogne,  210  U.  S.  95,  52 
L.   Ed.  973,  28   S.  Ct.   664. 


IIOS 


Vol.  X. 


SHIPS   AND   SHIPPING. 


1188 


their  trial,  a  maximum  speed  of  l/^/i  knots,  to  maintain  a  mean  average  annual 
speed  of  15  knots,  with  a  premium  for  exceeding  that  speed,  and  a  penalty 
for  a  failure  to  maintain  it.'*'^  Privity  or  knowledge  by  a  steamship  company 
of  the  fault  of  its  servants  in  maintaining  an  excessive  rate  of  speed  in  a  fog 
is  not  to  be  presumed  from  a  failure  to  comply,  in  proceedings  to  limit  liability, 
with  an  order  for  the  production  of  certain  log  books,  where  the  claimant  made 
no  attempt  to  introduce  secondary  evidence,  and  did  not  ask  a  dismissal  of  the 
proceedings  or  such  other  action  for  the  alleged  contumacy  as  the  case  required."*^ 

(3)  IVhat  Constitutes  Value  of  Ship  and  Freight — (b)  IVhat  Freight  Bs- 
timated. — Where  a  vessel  is  lost  on  a  voyage,  and  thereby  contracts  of  trans- 
portation are  unperformed,  it  may  be  that  there  will  be  no  freight  earned  and  none 
to  be  surrendered."*  The  freight  and  passage  money  which  was  received  for 
the  voyage  under  absolute  agreement  that  the  sums  so  paid  were,  in  any  event, 
to  belong  to  the  owner  of  the  vessel  which  were  tantamount  to  stipulations 
that,  although  such  freight  and  passage  moneys  might  be  only  partially  earned, 
the  right  to  the  whole  amount  was  contractually  complete,  must  be  surrendered 
as  freight  pending  on  the  voyage  under  the  rule  that  the  duty  to  surrender 
pending  freight  to  entitle  to  a  limitation  of  liability  must  be  liberally  construed 
against  the  shipowner."^^  Passenger  and  freight  receipts  earned  by  a  vessel 
on  her  sailing  from  Havre  to  New  York  need  not  be  surrendered  as  freight 
then  pending  for  the  voyage,  within  the  meaning  of  Rev.  Stat,  U.  S.,  §§  4283. 
4284  (U.  S.  Comp.  Stat.  1901,  p.  2943),  in  proceedings  for  the  limitation  of 
liability  for  claims  arising  out  of  a  collision  occurring  on  the  vessel's  return 
trip  from  New  York  to  Havre.     Each  of  these  trips  was  a  separate  voyage.''''^ 

(c)  Passage  Money. — See  ante,  "What  Freight  Estimated,"  IX,  D,  1,  i, 
(3),    (b). 


1188-4d.  Judgment,  La  Bourgogne 
(1906\  144  F.  781,  75  C.  C.  A.  647,  affirmed. 
La  Bourgogne,  210  U.  S.  95,  52  L.  Ed.  973, 
28   S.   Ct.  664. 

1188-4e.  Judgment,  La  Bourgogne 
(1906)  144  F.  781,  75  C.  C.  A.  647,  affirmed. 
La  Bourgogne,  210  U.  S.  95,  52  L.  Ed.  973, 
28  S.  Ct.  664. 

1188-7a.  La  Bourgogne,  210  U.  S.  95,  52 
L.  Ed.  973,  28  S.  Ct.  664,  following  Nor- 
wich Co.  V.  Wright,  13  Wall.  104,  20  L. 
Ed.  585. 

1188-7b.  La  Bourgogne,  210  U.  S.  95,  52 
L.  Ed.  973,  28  S.  Ct.  664,  following  The 
Main  v.  Williams,  152  U.  S.  122,  38  L.  Ed. 
381,  14  S.  Ct.  486,  and  O'Brien  v.  Miller, 
168  U.  S.  287,  303,  42  L-  Ed.  469,  18  S.  Ct. 
140. 

Sums  prepaid  for  freight  and  passage 
on  the  voyage,  under  an  absolute  agree- 
ment that  such  sums  are,  in  any  event,  to 
belong  to  the  owner  of  the  vessel,  must 
be  surrendered  as  freight  then  pending  on 
the  voyage,  within  the  meaning  of  Rev. 
St.  U.  S.,  §§  4283,  4284  (U.  S.  Comp.  St. 
1901,  p.  2943),  in  proceedings  for  the  lim- 
itation- of  liability  for  claims  arising  out 
of  the  sinking  of  the  vessels  as  a  result 
of  a  collision  at  sea.  Judgment,  La  Bour- 
gogne (1906)  144  F.  781,  75  C.  C.  A.  647, 
affirmed.  La  Bourgogne,  210  U.  S.  95,  52 
L.  Ed.  973,  28  S.  Ct.  664. 

1188-7C.  La  Bourgogne,  210  U.  S.  95,  53 


L.  Ed.  973,  28  S.  Ct.  664,  affirming  144  Fed. 
781,  75  C.  C.  A.  647. 

"As  §§  4283,  4284,  Rev.  Stat.  (U.  S. 
Comp.  Stat.  1901,  p.  2943),  are  in  pari 
materia,  the  two  must  be  considered  to- 
gether, and  therefore  the  freight  then 
pending,  referred  to  in  §  4283,  is  freight 
then  pending  for  "the  same  voyage,'  or 
'for  the  voyage,'  as  these  words  are  used 
in  §  4284."  La  Bourgogne,  210  U.  S.  95, 
52  L.  Ed.  973,  28  S.  Ct.  664. 

"Voyage"  defined. — "In  common  par- 
lance, each  of  these  trips  was  a  separate 
voyage.  Undoubtedly  the  word  'voyage' 
may  have  different  meanings  under  differ- 
ent circumstances,  depending  on  the  sub- 
ject to  which  it  relates  or  the  context  of 
the  particular  contract  in  which  the  word 
is  employed.  This  is  illustrated  by  the 
use  of  that  word  in  the  subsidy  contract, 
where  the  word  is  used  as  signifying  a 
sailing  from  Havre  to  New  York  and  the 
return  trip  to  Havre."  The  meaning  of 
the  word  in  §§  4283,  4284,  Rev.  Stat., 
"must  be  ascertained  by  considering  the 
context  of  the  sections  and  the  remedy 
which  they  were  intended  to  afford;  in 
other  words,  their  obvious  intent  and  pur- 
pose. The  intimate  relation  between  the 
provisions  of  the  two  sections,  which 
were  both  in  the  Act  of  1851,  was  pointed 
out  in  considering  that  act  in  Norwich 
Co.  V.  Wright,  13  Wall.  104,  20  L.  Ed. 
585."  La  Bourgogne,  210  U.  S.  95,  52  L. 
Ed.  973,  23  S.  Ct.  664. 


1103 


1188 


SHIPS  AND  SHIPPING. 


Vol.  X. 


(e)  Ship  Snbsidv  Money. — No  part  of  the  annual  subsidy  paid  to  a  steam- 
ship company  by  the  French  government  in  consideration  of  the  operation  of 
a  weekly  steamship  service  between  Havre  and  New  York  need  be  surrendered 
as  freight  pending  for  the  voyage,  within  the  meaning  of  Rev.  St.  U.  S.,  §§ 
4283,  4284  (U.  S.  Comp.  St.  1901,  p.  2943),  in  proceedings  for  the  limitation 
of  liability  for  claims  arising  out  of  the  loss  of  one  of  the  vessels  of  such 
steamship  company  in  a  collision  on  a  voyage  from  New  York  to  Havre. ^^ 

(3>^)  Freighters  Entitled  to  Participate. — "On  the  Same  Voyage."^ 
The  phrase  "on  the  same  voyage"  is  added  to  confine  the  participation  in  the 
apportionment  to  the  freighters  of  a  single  voyage,  and  not  to  permit  the  ship- 
owner to  bring  into  the  compensation  losses  sustained  on  prior  or  other  voy- 
ages.^*" 

(5)  Personal  Injuries  and  Death  by  Wrongful  Act. — The  Limited  Liability 
Act  applies  to  cases  of  personal  injury  and  death  by  wrongful  act  as  well  as 
to  those  of  loss  of  or  injury  to  property.^^ 

(6)  Transfer  of  Interest  to  Trustee  or  Payment  into  Court. — Failure  to  sur- 
render pending  freight  to  the  trustee  does  not  necessitate  a  refusal  to  allow  the 
limitation  of  liability  for  claims  arising  out  of  a  collision  at  sea,  where  there  is  an 
honest  controversy  as  to  whether  there  was  any  pending  freight  to  be  surren- 


1188-8a.  Judgment,  La  Bourgogne  (1906) 
144  F.  781,  75  C.  C.  A.  647,  affirmed.  La 
Bourgogne,  210  U.  S.  95,  52  L.  Ed.  973, 
28  S.  Ct.  664. 

1188-8b.  La  Bourgogne,  210  U.  S.  95,  52 
L.   Ed.  973,  28   S.   Ct.   664. 

1188-9a.  Richardson  v.  Harmon,  222  U. 
S.  96,  56  L.  Ed.  110,  32  S.  Ct.  27,  following 
Butler  V.  Boston,  etc..  Steamship  Co.,  130 
U.  S.  527,  32  L.  Ed.  1017,  9  S.  Ct.  612. 

"In  The  Hamilton,  207  U.  S.  398,  52  L. 
Ed.  264,  28  S.  Ct.  133,  it  was  also  settled 
that  where  the  law  of  a  state  to  which  a 
vessel  belonged,  in  other  words,  the  law 
of  the  domicil  or  flag,  gives  a  right  of  ac- 
tion for  wrongful  death  if  such  death  oc- 
curred on  the  high  seas  on  board  of  the 
vessel,  *  *  *  the  right  of  action  given  by 
the  law  of  the  domicil  or  flag  will  be 
enforced  in  an  admiralty  court  of  the 
United  States  as  a  claim  against  the  fund 
arising  in  a  proceeding  to  limit  liability." 
La  Bourgogne,  210  U.  S.  95,  52  L.  Ed.  973, 
28  S.  Ct.  664. 

The  liability  created  by  Act  Del.  Jan.  26, 
1886,  as  amended  by  Act  March  9,  1901, 
in  favor  of  personal  representatives  of  a 
person  whose  death  is  caused  by  violence 
or  negligence,  will  be  enforced  in  a  pro- 
ceeding in  admiralty  for  the  limitation  of 
liability  arising  out  of  a  tortious  collision 
on  the  high  seas  of  vessels  belonging  to 
Delaware  corporations.  Judgment,  The 
Hamilton  (1906),  146  F.  724,  77  C.  C.  A. 
150,  affirmed.  The  Hamilton,  207  U.  S. 
398,  52  L.  Ed.  264,  28  S.  Ct.  133. 

Personal  representatives  of  a  passenger 
and  of  members  of  a  crew  who  were 
drowned  as  the  result  of  the  collision  of 
their  vessel  with  another  vessel  on  the 
high  seas  may  recover  in  full  in  proceed- 
ings for  the  limitation  of  liability  of  such 
other  vessel   the   liability  created   by  Act 


Del.  Jan.  26,  1886,  as  amended  by  Act 
March  9,  1901,  in  favor  of  the  personal 
representatives  of  a  person  whose  death 
is  caused  by  violence  or  negligence.  Judg- 
ment, The  Hamilton  (1906),  146  F.  724,  77 
C.  C.  A.  150.  affirmed.  The  Hamilton,  207 
U.  S.  398,  52  L.  Ed.  264,  28  S.  Ct.  133.  See 
ante,   '"Constitutionality,"   IX,   D,   1,  b. 

"The  main  objection  is  that  the  statute 
allows  a  recovery  beyond  the  mainte- 
nance and  support  which  were  declared 
in  The  Osceola.  189  U.  S.  158,  175,  47  L. 
Ed.  760,  23  S.  Ct.  483.  to  be  the  limit  of  a 
seaman's  rights  against  his  own  vessel 
when  injured  by  the  negligence  of  the 
master  or  a  fellow  servant  on  his  ship. 
But  the  question  here  regards  the  liabil- 
ity of  the  Hamilton,  another  vessel.  The 
contract  between  the  seaman  and  the 
owners  of  the  Saginaw  does  not  afifect 
the  case.  Erie  R.  Co.  v.  Erie,  etc.,  Transp. 
Co.,  204  U.  S.  220,  226,  51  L.  Ed.  450,  27  S. 
Ct.  246.  Neither  does  the  Harter  Act,  even 
if  its  terms  could  be  extended  to  personal 
injuries  and  loss  of  life.  The  Chattahoo- 
chee, 173  U.  S.  540,  43  L.  Ed.  801,  19  S.  Ct. 
491.  Neither  does  the  negligence  of  the 
Saginaw.  The  Atlas,  93  U.  S.  302,  23  L. 
Ed.  863."  The  Hamilton,  207  U.  S.  398, 
52   L.    Ed.   264.   28    S.    Ct.    133. 

The  law  of  France,  which  authorizes  a 
recovery  for  loss  of  life  against  a  vessel 
in  fault,  will  be  enforced  by  the  courts  of 
the  United  States  in  a  proceeding  to  limit 
liability  for  claims  against  a  French  ves- 
sel found  to  be  at  fault  for  a  collision  in 
a  fog  on  the  high  seas,  although  the 
French  courts,  in  applying  to  the  facts 
found  the  international  rule  as  to  the 
''peed  of  vessels  in  a  fog.  inight  not  have 
held  such  vessel  to  be  at  fault.  La  Bour- 
o-ogne,  210  U.  S.  95.  52  L.  Ed.  973,  28  S. 
Ct.  664. 


1104 


\'ol.  X. 


SHIPS  AXD  SHIPPING. 


1188-1192 


derecl,  and  there  is  no  question  as  to  the  insolvency  of  the  owner-^*^^ 

(7)    Loss  of  Ship. — See  note  11. 

k.  Proceedings  to  Limit  Liability — (1)  Nature  of  Proceedings. — See  ante, 
"Rule  of  Construction,"  IX,  D,  1,  c. 

(  1^)  Claims  Provable  in  Proceedings  to  Limit. — The  statutes  of  the  United 
States  have  enabled  the  owner  to  transfer  its  liability  to  a  fund  and  to  the 
exclusive  jurisdiction  of  the  admiralty,  and  it  has  done  so.  That  fund  is  being 
distributed.  In  such  circumstances  all  claims  to  which  the  admiralty  does  not 
deny  existence  must  be  recognized,  whether  admiralty  liens  or  not.  This  is 
not  only  a  general  principle^*^**  but  is  the  result  of  the  statute  which  provides 
for,  as  well  as  limits,  the  liability,  and  allows  it  to  be  proved  against  the  fund.^*^*^ 

(2)  Forms  and  Rules  of  Procedure. — Rules  of  Decision  as  to  Speed  Per- 
missible in  Fog. — The  international  rule  as  to  speed  permissible  in  a  fog, 
as  interpreted  by  the  courts  of  the  United  States,  and  not  by  the  practice  under 
that  rule  prevailing  in  the  French  courts,  must  be  applied  in  a  proceeding  by 
the  owner  of  a  French  vessel  lost  in  a  collision  with  a  British  ship  on  the  high 
seas,  to  obtain,  in  the  courts  of  the  United  States,  the  benefit  of  the  law  of 
the  United   States   for  the  limitation  of  liability   of  shipowners. -'"' 

(3)  Jurisdiction,   J^enue  and  Courts. — State  Courts. — See  note  24. 

(7)  Necessity  for  Ascertaining  Co-Existing  Claims — (b)  Contesting  All 
Liability. — A  shipowner  seeking  the  benefit  of  the  Limited  Liability  Act  is 
accorded  the  privilege  not  only  of  seeking  the  benefit  of  the  act,  but  also  of 
contesting  his  liability  in  any  sum  whatever. ^^^ 

(8)  Effect  of  Proceedings — (a)  Superseding  Actions  in  Other  Courts — aa. 
In  General. — See  note  34. 


1188-lOa.  Judgment,  La  Bourgogne 
(1906),  144  F.  781,  75  C.  C.  A.  647,  af- 
firmed. La  Bourgogne,  210  U.  S.  95,  52 
L.  Ed.  973,  28  S.  Ct.  664. 

1189-11.  La  Bourgogne,  210  U.  S.  95,  52 
L.  Ed.  973,  28  S.  Ct.  664. 

1189-16a.  The  Hamilton,  207  U.  S.  398, 
52  L.  Ed.  264,  28  S.  Ct.  133,  citing  An- 
drews V.  Wall,  3  How.  567,  572,  11  L.  Ed. 
729;  The  J.  E.  Rumbell,  148  U.  S.  1,  15,  37 
L.  Ed.  345,  13  S.  Ct.  498;  admiralty  rule 
43;  The  Galam,  3  Moore  P.  C.  C.  N.  S. 
216,  236. 

1189-16b.  The  Hamilton,  207  U.  S.  398, 
52  L.  Ed.  264,  28  S.  Ct.  133,  citing  The 
Albert  Dumoi^,  177  U.  S.  240.  260,  44  L. 
Ed.  751,  20  S.  Ct.  595,  and  Workman  v. 
New  York,  179  U.  S.  552,  563,  45  L.  Ed. 
314,  21   S.  Ct.  212. 

1190-20a.  Judgment,  La  Bourgogne 
(1906)  144  F.  781,  75  C.  C.  A.  647,  affirmed. 
L?.  Bourgogne,  210  U.  S.  95,  52  L.  Ed.  973, 
28  S.  Ct.  664. 

1190-24.  The  value  and  efficiency  of  the 
law  will  also  be  greatly  diminished,  if  not 
entirely  destroyed,  by  allowing  its  admin- 
istration to  be  hampered  and  interfered 
with  by  various  and  conflicting  jurisdic- 
tions. La  Bourgogne,  210  U.  S.  95,  52  L. 
Ed.  973,  28  S.  Ct.  664,  following  Provi- 
dence, etc..  Steamship  Co.  t'.  Hill  Mfg. 
Co.,  109  U.  S.  578,  27  L.  Ed.  1038,  3  S.  Ct. 
379. 

1192-33a.  "Strictly  speaking,  the  appli- 
cation for  a  limitation  of  liability  is  in  ef- 
fect a  concession  that  liability  exists,  but. 


because  of  the  absence  of  privity  or 
knowledge,  the  benefits  of  the  statute 
should  be  awarded.  It  is  true  that,  under 
the  rules  promulgated  by  this  court,  the 
petitioner  is  accorded  the  privilege  not 
only  of  seeking  the  benefits  of  the  stat- 
ute, but  also  of  contesting  its  liability  in 
any  sum  whatever.  This  does  not,  how- 
ever, change  the  essential  nature  of  the 
proceeding.  As  the  petitioner  called  the 
various  claimants  into  a  court  of  admi- 
ralty of  the  United  States,  to  test  whether, 
in  virtue  of  the  laws  of  the  United  States, 
it  should  be  relieved,  in  part,  at  least,  of 
Hability  from  the  consequences  of  the 
acts  of  its  agents,  and  as  the  international 
rules  have  the  force  of  a  statute,  we  think 
the  issues  presented  were  of  such  a  char- 
acter as  to  render  it  essential  that  the 
right  to  exemption  should  be  tested  by 
the  law  as  administered  in  the  courts  of 
the  United  States,  and  not  otherwise." 
La  Bourgogne,  210  U.  S.  95,  52  L.  Ed. 
973.  28   S.   Ct.   664. 

1192-34.  The  case  of  Providence,  etc.. 
Steamship  Co.  v.  Hill  Mfg.  Co.,  109  U.  S. 
.->78,  27  L.  Ed.  1038,  3  S.  Ct.  379,  was 
a  suit  in  a  state  court  against  the  owner 
of  a  steamship  to  recover  for  goods  lost 
by  the  burning  of  a  steamer.  After  a 
consideration  of  the  meaning  and  purpose 
of  the  Limited  Liability  Act  of  1851  (9 
Stat,  at  L.  635,  chap.  43,  U.  S.  Comp.  Stat. 
1901,  pp.  2943,  2944),  §§  4283,  4284.  4285. 
Rev.  Stat.,  and  of  admiralty  rule  54,  the 
court  said:     "We  have   deemed  it  proper 


12  U  S   Enc— 70 


1105 


1192 


SHIPS  AND   SHIPPING. 


Vol.  X. 


bb.  Duty  of  Other  Courts  to  Suspend  Proceedings. — Proceedings  under  the 
act  having  been  duly  instituted  the  court  acquired,  full  jurisdiction  of  the 
subject  matter;  and  having  taken  such  jurisdiction,  and  procured  control  of 
the  vessel  and  freight  (or  their  value),  constituting  the  fund  to  be  distributed, 
and  issued  its  monition  to  all  parties  to  appear  and  present  their  claims,  it  be- 
came the  duty  of  all  courts  before  which  any  of  such  claims  were  prosecuted, 
upon  being  properly  certified  of  the  proceedings,  to  suspend  further  action  upon 
said  claims.^^^     When  the  procedure  provided  by   rule   54  has  been   followed 


to  examine  thus  fully  the  foundation  on 
which  the  rules  adopted  in  December 
term,  1871,  were  based,  because,  if  those 
rules  are  valid  and  binding  (as  we  deem 
them  to  be),  it  is  hardly  possible  to  read 
them  in  connection  with  the  Act  of  1851 
without  perceiving  that  after  proceedings 
have  been  commenced  in  the  proper  dis- 
trict court  in  pursuance  thereof,  the  pros- 
ecution pari  passu  of  distinct  suits  in  dif- 
ferent courts,  or  even  in  the  same  court 
by  separate  claimants,  against  the  ship- 
owners, is,  and  must  necessarily  be,  ut- 
terly repugnant  to  such  proceedings,  and 
subversive  of  their  object  and  purpose." 
The  San  Pedro,  223  U.  S.  365,  56  L.  Ed. 
473,   32   S.   Ct.   275. 

Nonmaritime  torts. — "If  thus  the  own- 
er's liability  for  a  tort  permitted  or  in- 
curred through  the  master  or  crew, 
although  nonmaritime,  because  due  to  a 
collision  between  the  ship  and  a  structure 
upon  land,  be  one  in  respect  to  which  his 
liability  is  limited,  and  he  applies  for  the 
benefit  of  such  limitation  to  the  proper 
district  court  of  the  United  States,  'all 
proceedings,'  by  the  express  terms  of 
§  4285,  Rev.  Stat.,  'against  the  owner,  shall 
cease.'  The  procedure  in  any  such  case 
is  prescribed  by  the  54th  and  55th  rules 
in  admiralty,  where  it  is  said  that  the 
court  shall,  'on  application  of  the  said 
owner  or  owners,  make  an  order  to  re- 
strain the  further  prosecution  of  all  and 
any  suit  or  suits  against  said  owner  or 
owners  in  respect  of  any  such  claim  or 
claims.'  Providence,  etc.,  Steamship  Co. 
V.  Hill  Mfg.  Co.,  109  U.  S.  578,  27  L.  Ed. 
1038,  3  S.  Ct.  379;  Butler  v.  Boston,  etc., 
Steamship  Co.,  130  U.  S.  527,  549,  32  L. 
Ed.  1017,  9  S.  Ct.  612."  Richardson  r. 
Harmon,  222  U.  S.  96,  56  L.  Ed.  110,  32 
S.  Ct.  27. 

Liability  not  affected  by  proceeding. — 
"Inasmuch  as  the  owner's  liability  was 
not  limited  by  the  statutes  providing  for 
a  limited  liabilit3\  the  pendency  of  a  peti- 
tion to  obtain  the  benefits  of  the  limita- 
tion did  not  operate  to  draw  into  such  a 
proceeding  action  for  a  liability  which 
could  in  no  wise  be  affected  by  it.  Ex 
parte  Phenix  Ins.  Co.,  118  U.  S.  610,  30 
L.  Ed.  274,  7  S.  Ct.  25.  Such  was  the  law, 
and  so  it  still  is,  unless  changed  by  the 
18th  section  of  the  Act  of  June  26,  1884." 
Richardson  v.  Harmon,  222  U.  S.  96,  56 
L.  Ed.  110,  32  S.  Ct.  27. 


Libel  by  salvage  claimants. — All  fur- 
ther proceedings  on  a  libel  instituted  by 
salvage  claimants,  who  towed  to  port  a 
vessel  disabled  in  a  collision,  must  stop' 
upon  pleading  the  pendency  in  the  same 
court  of  a  separate  proceeding  by  the 
owners  of  the  vessel,  claiming  the  bene- 
fits of  the  limited  liability  provisions  of 
U.  S.  Rev.  Stat.,  §§  4283-4285,  U.  S.  Comp. 
Stat.  1901,  pp.  2943,  2944,  as  amended  by 
the  Act  of  June  26,  1884  (23  Stat,  at  L. 
57,  chap.  121,  U.  S.  Comp.  Stat.  1901,  p. 
2945),  §  18,  in  which,  conformably  to  ad- 
miralty rule  54,  there  has  been  an  ap- 
praisement of  the  vessel  and  her  pending 
freight,  and  a  stipulation  entered  into  for 
the  payment  of  the  appraised  value  into 
court,  and  a  monition  duly  issued,  requir- 
ing all  persons  to  present  their  claims  and 
make  proof.  The  San  Pedro,  223  U.  S. 
365,  56  L.  Ed.  473,  32  S.  Ct.  275. 

1192-35a.  The  San  Pedro,  223  U.  S.  365, 
56  L.  Ed.  473,  32  S.  Ct.  275,  approving 
Providence,  etc.,  Steamship  Co.  f.  Hill 
Mfg.  Co..  109  U.  S.  578,  27  L.  Ed.  1038,  3 
S.  Ct.  379. 

"The  operation  of  the  act,  in  this  be- 
half, can  not  be  regarded  as  confined  to 
cases  of  actual  'transfer'  (which  is  merely 
allowed  as  a  sufficient  compliance  with 
the  law),  but  must  be  regarded,  when  we 
consider  its  reason  and  equity  and  the 
whole  scope  of  its  provisions,  as  extend- 
ing to  cases  in  which  what  is  required 
and  done  is  tantamount  to  such  transfer; 
as  where  the  value  of  the  owner's  inter- 
est is  paid  into  court,  or  secured  by  stip- 
ulation and  placed  under  its  control,  for 
the  benefit  of  the  parties  interested." 
The  San  Pedro.  223  U.  S.  365,  56  L.  Ed. 
473,  32  S.  Ct.  275,  quoting  Providence,  etc., 
Steamship  Co.  v.  Hill  Mfg.  Co.,  109  U.  S. 
578.  27  L.  Ed.  1038,  3  S.  Ct.  379. 

"The  appellant,  owner  of  the  San  Pedro, 
appears  to  have  proceeded  strictly  in 
compliance  with  the  fifty-fourth  admi- 
ralty rule.  There  was  a  due  appraisement 
of  the  San  Pedro  and  her  pending  freight, 
and  a  stipulation  entered  into,  with  sure- 
ties, for  the  value  so  appraised,  and  a 
monition  duly  issued,  requiring  all  per- 
sons to  present  their  claims  and  make 
proof.  In  that  situation,  the  jurisdiction 
of  the  court  to  hear  and  determine  every 
claim  in  that  proceeding  became  exclusive. 
It  was  then  the  duty  of  every  other  court, 
federal   or  state,  to  stop   all  further  pro- 


1106 


Vol.  X. 


SHIPS  AXD  SHIPPIXG. 


1192-1194 


and  a  monition  has  issued  "against  all  persons  claiming  damages  *  *  * 
citing  them  to  appear  before  said  court  and  make  proof  of  their  respective 
claims,"  etc.,  it  is  the  duty  of  every  other  court,  when  the  pendency  of  such  a 
liability  petition  is  pleaded,  to  stop.  The  very  nature  of  the  proceeding  and 
the  monition  has  the  effect  of  a  statutory  injunction.  Indeed,  that  is  the  ex- 
press declaration  of  the  statute.^^'' 

cc.  Staying  or  Restraining  Proceedings  in  Other  Courts. — The  issuance  of 
an  injunction  is  not  necessary  to  stop  proceedings  in  separate  or  independent 
suits  upon  such  claims.  Power  to  grant  an  injunction  exists  under  §  4285, 
Rev.  Stat.,  when  necessary  to  maintain  the  exclusiveness  of  the  jurisdiction.^^^ 
The  very  nature  of  the  proceeding  and  the  monition  has  the  effect  of  a  statu- 
tory injunction.     Indeed,  that  is  the  express  declaration  of  the  statutc^^** 

2.    Harter  Act — c.    Exceptions  Limiting  Liability  of  Carrier. — See  note  53. 


ceedings  in  separate  suits  upon  claims  to 
which  the   Limited  Liability  Act  applied." 


Ed. 


365, 
365, 


The   San   Pedro,   223  U.   S.  365,   56 
473,  32  S.  Ct.  275. 

1192-35b.  The  San  Pedro,  223  U. 
56  L.  Ed.  473,  32  S.  Ct.  275. 

1192-36a.  The  San  Pedro,  223  U. 
56  L.  Ed.  473,  32  S.  Ct.  275. 

It  was  urged  in  Providence,  etc.,  Steam- 
ship Co.  V.  Hill  Mfg.  Co.,  109  U.  S.  578, 
27  L.  Ed.  1038,  3  S.  Ct.  379,  that  by  virtue 
of  §  720,  Rev.  Stat.  (U.  S.  Comp.  Stat. 
1901,  p.  581),  the  district  court  had  no 
authority  to  issue  an  injunction.  But  as 
to  this,  the  court  said:  "This  view  of  the 
statutory  injunction,  and  of  its  effect  upon 
separate  actions  and  proceedings,  renders 
it  unnecessary  to  determine  the  question 
as  to  the  legality  of  the  writ  of  injunction 
issued  by  the  district  court.  Although 
we  have  little  doubt  of  its  legality,  the 
question  can  only  be  properly  raised  on 
an  application  for  an  attachment  for  dis- 
obeying it.  As  the  writ  was  issued  prior 
to  the  adoption  of  the  Revised  Statutes, 
the  power  to  issue  it  was  not  affected  by 
any  supposed  change  of  the  law  intro- 
duced into  the  revision,  by  the  720th  sec- 
tion of  which  the  prohibition  of  the  Act 
of  1793  (1  Stat,  at  L.  334,  chap.  22,  U.  S. 
Comp.  Stat.  1901,  p.  581),  in  regard  to  in- 
junctions against  proceedings  in  state 
courts,  has  this  exception  appended  to  it: 
'Except  in  cases  where  such  injunction 
may  be  authorized  by  any  law  relating  to 
proceedings  in  bankruptcy.'  Under  the 
rule  of  expressio  unius  this  express  ex- 
ception may  be  urged  as  having  the  effect 
of  excluding  any  other  exception,  though 
it  is  observable  that  the  injunction  clause 
in  the  Act  of  1851  is  preserved  without 
change  in  §  4285,  Rev.  Stat.,  and  will  prob- 
ably be  construed  as  having  its  original 
effect,  due  to  its  chronological  relation  to 
the  Act  of  1793."  The  San  Pedro.  223  U. 
S.  365.  56  L.  Ed.  473,  32  S.  Ct.  275. 

1192-36b.  The  San  Pedro,  223  U.  S.  365, 
56  L.  Ed.  473,  32  S.  Ct.  275. 

1194-53.  "Prior  to  the  Harter  Act  it  was 
established  that  a  common  carrier  by  sea 


could  not,  by  any  agreement  in  the  bill 
of  lading,  exempt  hiniself  fro:n  respond- 
ing to  the  owner  of  cargo  for  damages 
arising  from  the  negligence  of  the  inaster 
or  crew  of  the  vessel.  Liverpool,  etc., 
Steam  Co.  v.  Phenix  Ins.  Co.,  129  U.  S. 
397,  438,  32  L.  Ed.  788,  9  S.  Ct.  469,  follow- 
ing Railroad  Co.  v.  Lockwood,  17  Wall. 
357,  21  L.  Ed.  627.  But  of  course  the  re- 
sponsibilities of  the  carrier  were  subject 
to  modification  by  law,  and  with  respect 
to  vessels  transporting  merchandise  from 
or  between  ports  of  the  United  States  and 
foreign  ports  they  were  substantially 
modified  by  the  Harter  Act."  The  Jason, 
225  U.  S.  32,  56  L.  Ed.  969,  32  S.  Ct.  560. 

In  The  Irrawaddy,  171  U.  S.  187,  43  L. 
Ed.  130,  18  S.  Ct.  831,  the  opinion,  after 
stating  that,  as  the  law  stood  before  the 
passage  of  the  act,  the  shipowner  could 
not  contract  against  his  liability  and  that 
of  his  vessel  for  loss  occasioned  by  neg- 
ligence or  fault  in  ofificers  and  crew,  and 
that  in  this  particular,  the  owners  of  Amer- 
ican vessels  were  at  a  disadvantage  as 
compared  with  the  owners  of  foreign 
vessels,  who  might  so  contract,  proceeded 
to  say  that  "congress  thought  fit  to  re- 
move the  disadvantage,  not  by  declaring 
th-at  it  should  be  competent  for  the  own- 
ers of  vessels  to  exempt  themselves  from 
liability  for  the  faults  of  the  master  and 
crew  by  stipulations  to  that  effect  con- 
tained in  bills  of  lading,  but  by  enacting 
that,  if  the  owners  exercised  due  diligence 
in  making  their  ships  seaworthy  and  in 
duly  manning  and  equipping  them,  there 
should  be  no  liability  for  the  navigation 
and  management  of  the  ships,  however 
faulty."  The  Jason,  225  U.  S.  32,  56  L. 
Ed.  969,  32  S.  Ct.  560. 

In  reference  to  the  preceding  paragraph 
the  court  said:  "This  language  is  laid 
hold  of  as  indicating  that  the  decision 
proceeded  upon  the  ground  that  congress 
thought  it  improper  to  permit  owners  of 
vessels  to  contract  for  exemption  from 
liability.  What  it  really  means,  as  will  be 
observed,  is,  that  congress  went  further, 
and  by  its  own  enactment  exempted  them 
from  liability,  under  given  conditions,  for 


1107 


1196  SLAVERY  AND  IXVOLUXTARY  SERVITUDE.  Vol.  X. 

e^^.  Duty  of  Master  of  Stranded  Vessel. — The  duty  resting  upon  the  mas- 
ter of  a  negHgently  stranded  vessel,  irrespective  of  whether  the  negligence 
falls  within  the  exemption  from  liability  made  by  the  Harter  Act  of  February 
13,  1893,  §  3,  or  not,  demands  only  the  exercise  of  every  reasonable  effort 
to  save  the  imperiled  property,  and  does  not  extend  so  far  as  to  call  for  a 
sacrifice  of  part  of  the  owner's  property,  if  necessary  to  save  the  cargo.'''*'' 

f.  R'ight  to  General  Average  Contribution. — The  exemption  of  a  shipowner 
who  has  exercised  due  diligence  to  make  the  vessel  seaworthy  and  properly 
manned,  equipped,  and  supplied,  from  liability  for  the  negligence  of  master 
and  crew,  which  is  declared  in  the  Harter  Act  of  February  13,  1893  (27  Stat. 
at  L.  445,  chap.  105,  U.  S.  Comp.  Stat.  1901,  p.  2946),  §  3,  leaves  such  owner 
free  to  make  a  valid  contract  with  the  cargo  owners  under  which  contribution 
in  general  average  may  be  enforced  for  sacrifices  made  subsequent  to  the  negli- 
gent stranding  of  the  vessel,  in  a  successful  eft'ort  to  save  the  vessel,  freight, 
and  cargo."'^'^ 

i.  Personal  Injuries  and  Loss  of  Life. — See  ante,  "Personal  Injuries  and 
Death  by  \\'rongful  Act,"  IX,  D,  1,  i,   (5). 

SHIP   SUBSIDY  MONEY.— See  ante.  Ships  and  Shipping,  p.  1096. 
SHORE. — See  ante,  Boundariks,  p.  206;  Navigable  Waters,  p.  914. 
SIDEWALKS. — See  post,  Streets  and  Highways. 
SIGNALS.— See  ante.  Collision,  p.  243. 

SILENCE. — See  ante.  Estoppel,  p.  553;  Fraud  and  Deceit,  p.  597. 
SITUS. — See  ante,  Conflict  of  Laws,  p.  250.     Situs  of  property  for  taxa- 
tion, see  post,  Taxation. 


SLAVERY  AND  INVOLUNTARY  SERVITUDE. 

IX.  The  Thirteenth  Amendment,   1109. 

A.  How   Far    Self-Executing,    1109. 

D.  Prohibition  Not  Restricted  to  Enslavement  of   Negro  Race,    1109. 

E.  Character   of    Servitude   Forbidden    by    the   Thirteenth   Amendment, 

1109. 
1.  Generally,   1109. 
3.  Peonage,  1109. 

the    consequences    of    faulty    navigation."  his  servant's  neg-ligence.  it  did  not  of  its 

The  Jason,  225  U.  S.  33,  56  L.  Ed.  969,  32  own  force  entitle  him   to  share  in  a  gen- 

S.  Ct.  560.  eral   average   rendered   necessary   by   such 

The  Irrawaddy,  171  U.  S.  187,  43  L.  Ed.  negligence."     The  Jason,  225  U.   S.  32,  56 

130,  18  S.  Ct.  831,  there  was  no  agreement  L.  Ed.  969,  32  S.  Ct.  560. 
between   shipowner  and  cargo   owner   re-  "So  far  as  the  Harter  Act  has  relieved 

specting   general   average,    nor    respecting  the  shipowner  from  responsibility  for  the 

the  consequences  of  a  stranding  or  other  negligence   of   his   master   and   crew,   it   is 

peril  that    might    result    from    the   negli-  no   longer   against   the   policy   of   the   law. 

gence  of  the  master  or  crew  of  the  vessel.  ^or  him  to  contract  with  the   cargo  own- 

The  Jason,  225  U.  S.  32,  56  L.  Ed.  969,  32  ers  for  a  participation  in  general  average 

S.  Ct.  560.  contribution    growing    out    of   such    negli- 

1196-69a.  The  Jason,  225  U.  S.  32,  56  L.  Rence;   and  since   the  clause  contained  in 

Ed.  969,  32  S.  Ct.  560.  ^"^    bills    of   lading   of   the   Jason  s    cargo 

11QC  ^A^"  Tu     T  oof.  TT    c    .,r.    ^^  T  adiiiits  thc  shipowucT  to  share  in  the  gen- 

v}   ar'I  t  lU^l^n'  ^^     ^^  ^^  ^^'  ^^  ^^  ^ral     average     only    under    circumstances 

Ed.  969,  32  S.  Ct.  560.  ^^^^^^^  ^^  ^^^  ^^^  ^^  j^  relieved  from  re- 

"The  point  of  the  decision  in  The  Irra-  sponsibility,    the   provision   in   question   is 

waddy,  171  U.  S.  187,  43  L.  Ed.  130,  18  S.  valid,    and    entitles    him    to    contribution 

Ct.  831  (and  as  an  authority  the  case  goes  under    the     circumstances     stated."       The 

no  further),  is,  that  while  the  Harter  Act  Jason,  225  U.  S.  32,  56  L.  Ed.  969,  32  S.  Ct. 

relieved   the   shipowner   from   liability   for  560. 

1108 


Vol.  X. 


SOLICIT. 


1212-1214 


CROSS   REFERENCES. 

See  the  title  Slavery  and  Ixvoluxtarv  Servitude,  vol.  10,  p.  1209,  and 
references  there  given. 

In  addition,  see  ante,  Civil  Rights,  p.  236. 

IX.    The  Thirteenth  Amendment. 
A.    How  Far  Self-Executing. — See  note  19. 

D.  Prohibition  Not  Restricted  to  Enslavement  of  Negro  Race. — See 

note  22. 

E.  Character  of  Servitude  Forbidden  by  the  Thirteenth  Amendment 

— 1.  Gkxerallv. — See  note  26. 

3.    Peoxage. — See  note  29. 

Statute  Making  Refusal  to  Perform  Labor  Contract  Prima  Facie 
Evidence  of  Fraud. — So  far  as  the  refusal  without  just  cause  to  perform 
the  labor  called  for  in  a  written  contract  of  employment  under  which  the  em- 
ployee has  obtained  money  which  was  not  refunded,  or  property  which  was  not 
paid  for,  is  made  prima  facie  evidence  of  an  intent  to  defraud  by  Code  Ala. 
1896,  §  4730,  as  amended  by  Gen.  Acts  Ala.  1903,  p.  345,  and  Gen.  Acts  Ala. 
1907,  p.  636,  and  therefore  punishable  as  a  criminal  offense,  such  legislation 
offends  against  the  prohibition  of  the  thirteenth  amendment  to  the  federal 
Constitution  against  involuntary  servitude,  except  as  punishment  for  crime, 
and  against  the  provisions  forbidding  peonage,  found  in  Rev.  St.  U.  S.,  §§ 
1990,  5526  (U.  S.  Comp.  St.  1901,  pp.  1266,  3715),  enacted  to  secure  the  en- 
forcement of  such  amendment — especially  since,  under  the  local  practice,  the 
accused  may  not,  for  the  purpose  of  rebutting  the  statutory  presumption,  tes- 
tify as  to  his  uncommunicated  motives,  purposes,  or   intentions. ^^'^ 

SOLD.— See  note  5a. 

SOLE  RIGHTS.— See  note  5b. 

SOLICIT.— See  note  5c. 


1212-19.  How  far  self-executing. — Bailey 
t'.  Alabama.  219  U.  S.  219,  55  L.  Ed.  191, 
31   S.  Ct.  145. 

1212-22.  Prohibition  not  restricted  to 
enslavement  of  negro  race. — Bailey  :•. 
Alabama,  219  U.  S.  219,  55  L.  Ed.  191,  31 
S.   Ct.   145. 

1213-26.  Conspiracy  to  prevent  making 
or  carrying  out  contract. — United  States 
c.  Powell,  212  U.  S.  5(34,  53  L.  Ed.  653. 
See  ante,  CONSTITUTIONAL  LAW,  p. 
264;  DUE  PROCESS  OF  LAW,  p.  475. 

1213-29.  Peonage  defined. — Bailey  v. 
Alabama,  219  U.  S.  219,  55  L.  Ed.  191,  31 
S.  Ct.  145. 

1213-31a.  Refusal  to  perform  labor  con- 
tract— Evidence  of  fraud. — Bailey  v.  Ala- 
bama, 219  U.  S.  219,  55  L.  Ed.  191,  31  S. 
Ct.  145,  reversing  judgment  (1909)  49  So. 
886,  161  Ala.  75. 

1214-5a.  Sold  implying  a  completed 
bargain. — See  Stewart  v.  Griffith,  217  U. 
S.  323,  329,  54  L.  Ed.  782,  30  S.  Ct.  528. 
See  post.  VENDOR  AND  PURCHASER. 

1214-5b.  The  sole  right  to  vend  a  copy- 
righted book,  secured  by  U.  S.  Rev.  Stat., 
§  4952,  U.  S.  Comp.  Stat.  1901,  p.  3406,  to 
the  owner  of  a  copyright,  does  not  in- 
clude the  right  to  impose,  by  a  notice 
printed  on  the  same  page  with  the  notice 


of  copj-right,  a  limitation  as  to  the  price 
at  which  the  book  shall  be  sold  at  retail 
by  future  purchasers  with  whom  there  is 
no  privity  of  contract.  Bobbs-Merrill 
Co.  T'.  Straus,  210  U.  S.  339,  52  L.  Ed.  108  i, 
28  S.  Ct.  722.  See  ante,  COPYRIGHT, 
p.  377. 

1214-5C.  Soliciting  for  political  pur- 
poses.— Solicitation  by  letter  intended  to 
be  received  and  read  by  a  postoffice  em- 
ployee in  the  postoffice  building,  and 
which  was  so  received  and  read  in  such 
building,  is  embraced  bj'  the  provision  of 
the  Civil  Service  Act  of  January  16,  1883 
(22  Stat,  at  L.  403,  407,  chap.  27,  U.  S. 
Comp.  Stat.  1901,  pp.  1217,  1223),  §  12, 
that  no  person  shall,  in  any  room  or  build- 
ing occupied  in  the  discharge  of  official 
duties  by  any  officer  or  employee  of  the 
United  States  mentioned  in  such  act,  so- 
licit, "in  any  manner  whatever,"  or  re- 
ceive, any  contribution  of  money  or  any 
other  thing  of  value  for  any  political  pur- 
pose whatever.  It  is  possible  to  solicit 
by  letter  as  well  as  in  person.  It  is 
equall)-  clear  that  the  person  v.lio  writes 
the  letter  and  intentionally  puts  it  in  the 
way  of  delivery  solicits,  whether  the  de- 
livery is  accomplished  by  agents  of  the 
writer,  by  agents  of  the  person  addressed. 


1109 


1214  SPECIAL  ASSESSMENTS.  Vol.  XL 

SOLICITING  POLITICAL  CONTRIBUTIONS.— See  ante,  Public  Offi- 
cers, p.  1035. 

SOUNDING  IN  TORT.— See  note  5d. 

SOVEREIGNTY. — See  ante,  International  Law,  p.  686. 

SPANISH  GRANTS.— See  ante,  Public  Lands,  p.   1012. 

SPANISH  LAW.— See  ante,  Foreign  Laws,  p.  595;  Judicial  Notice,  p. 
810;  Prescription,  p.  999. 

SPANISH  OFFICIALS.— See  ante.  Public  Lands,  p.  1012;  Prescription, 
p.  999. 

SPECIAL  APPEARANCE.— See  ante,  Appeal  and  Error,  p.  34;  Appear- 
ances, p.  144. 

SPECIAL  ASSESSMENTS. 

II.  Power  to  Levy  Assessments,  1110. 

A.  Power  of  Legislature  to  Levy  or  Authorize  Assessments,  1110. 
3.  Constitutional    Restrictions    on    Power,    1110. 

a.  As  Afifected  by  Due  Process  of  Law  Clause,  1110. 
a^.  As  Afifected  by  the   Equal   Protection  of  the  Laws   Clause, 
1111. 

V.  Amount  and  Apportionment,  1111. 

A.  Amount,  1111. 

B.  Apportionment,  1111. 

1.  In  General,  1111. 

VI.  Assessment  Proceedings,   1111. 

B.  Notice  or  Opportunity  to  Be  Heard,   1111. 

1.  Necessity,   1111. 

6.  Estoppel  to  Object  to  Failure  to  Give  Notice,  1112. 

7.  Sufficiency  of  Hearing,  1112. 
D.  Reassessment,    1112. 

VII.  Enforcement  and  Collection,   1112. 

C.  Action   to   Collect — Complaint,    1112. 

CROSS  REFERENCES. 
See  the  title  Special  Assessments,  vol.  11,  p.  1,  and  references  there  given. 
In  addition,  see  ante,  Appeal  and  Error,  p.  34 ;  Drains  and  Sewers,  p.  472 ; 
Res  Ad  judicata,  p.  1065. 

II.  Power  to  Levy  Assessments. 

A.  Power  of  Legislature  to  Levy  or  Authorize  Assessments — 3.  Con- 
stitutional Restrictions  on  Power — a.  As  Affected  by  Due  Process  of  Law 
Clause. — The  power  of  a  state  to  compel  a  township,  as  one  of  its  political  sub- 
divisions, to   levy  and    collect  taxes  for   the  purpose  of    paying  the    amount  as- 

or  by  independent   middlemen,  if  it  takes  tion   on  account   of  the   unlawful   and  un- 

place   in   the   intended  way.     The    statute  necessary  destruction  of  property  during 

prohibits   solicitation   by   writing   as    well  the   war,   under   tlie   order  of  the   general 

as  by  spoken  words.     It  forbids   all  per-  commanding,     is     one     sounding    in    tort 

sons  to  solicit  "in  any  manner  whatever."  within  the  meaning  of  the  Act  of  March 

The  purpose  is  wider  than  that  of  a  no-  3.  1887  (24  Stat,  at  L.  505,  chap.  359,  U.  S. 

tice  prohibiting  book  peddling  in  a  build-  Comp.  Stat.  1901,  p.  752),  excluding  ca.'^cs 

ing.     United   States  v.  Thayer,  209  U.   S.  of  that  character  from  the  jurisdiction  of 

39,  52  L.  Ed.  673,  28  S.  Ct.  426.     See  ante,  the  court  of  claims.     Juragua  Iron  Co.  v. 

POSTAL  LAWS.  p.  996.  United   State.s   212   U.   S.   297.   53   L.   Ed. 

1214-5d.     Sounding     in     tort.— A     claim  520.   29    S.    Ct.   385.     See   ante,    COURTS, 

against   the   Lhiited   States   for   compensa-  d.  398. 

1110 


Vol.  XI.  SPECIAL  ASSESSMENTS.  5-9 

sessed  against  such  township  for  the  pubhc  benefits  accruing  from  the  construc- 
tion of  a  drain,  was  not  taken  away  by  the  due  process  of  law  clause  of  the 
fourteenth  amendment  to  the  federal  constitution. ^^^^  Due  process  of  law  is  not 
denied  to  the  owner  of  property  lying  directly  back  of  property  abutting  on  a 
street  improvement  by  legislation  creating  a  taxing  district  of  the  property  along 
the  line  of  the  improvement  and  extending  back  therefrom  150  feet,  and  pro- 
viding that  property  50  or  more  feet  distant  from  the  street  and  within  150  feet 
th.erefrom  shall  be  liable  if  the  abutting  50  feet  which  are  primarily  liable  prove 
insufficient  to  pay  the  cost  of  the  improvements. ^^'^ 

a^.  As  Affected  by  the  Equal  Protection  of  the  Laws  Clause. — The  equal 
protection  of  the  laws  is  not  denied  to  the  owner  of  property  lying  directly  back 
of  property  abutting  on  a  street  improvement  by  legislation  creating  a  taxing 
district  of  the  property  along  the  line  of  the  improvement  and  extending  back 
therefrom  150  feet,  and  providing  that  property  50  or  more  feet  distant  from 
the  street,  and  within  150  feet  therefrom,  shall  be  liable  if  the  abutting  50  feet, 
which  are  primarily  liable,  prove  insufficient  to  pay  the  cost  of  the  improve- 
ments.^^'^ 

V.   Amount  and  Apportionment. 

A.  Amount. — Private  property  is  not  taken  for  public  use  without  compen- 
sation under  an  act  which  provides  that  one-half  the  amount  awarded  as  dam- 
ages in  the  street  extension  proceeding  authorized  by  such  act  is  to  be  assessed 
against  the  lands  within  a  designated  area  as  benefits,  considering  the  benefits 
received  by  each  lot  within  such  area,  where  there  is  nothing  to  show  that  the 
actual  assessments  thereunder  are  in  substantial  excess  of  the  benefits.-*^  The 
question  of  the  excessiveness  of  a  special  assessment  for  benefits  resulting  from 
a  public  street  improvement  is  one  of  fact. 2^'' 

B.  Apportionment — 1.  Ix  General. — See  note  29. 

VI.  Assessment  Proceedings. 

B.  Notice  or  Opportunity  to  Be  Heard — 1.  Necessity. — Notice  of  the 
meetings  of  the  common  council  on  proceedings  to  confirm  a  special  assessment 
for  a  public  improvement  is  not  essential,  where  notice  was  given  of  the  meet- 
ings of  the  commissioners  appointed  to  make  such  assessment. ^^'^ 

Tribunal  before  Which  Hearing-  Had. — See  note  42. 

5-13a.    Power    to    compel    township    to  provement      districts,      and      charge      the 

levy    and    collect    assessments. — Soliah    z'.  wliole  or  part  of  the  cost  of  a  local  im- 

Heskin,  222  U.  S.  522,  56  L.  Ed.  294,  32  S.  provement  upon   the   property  in   the   dis- 

Ct.  103.  trict,      either      according     to      vahiation, 

5-13b.    Due  process  of  law  not  denied.  superficial   area,   or  frontage.      Briscoe   z'. 

— Cleveland,    etc.,    R.    Co.    v.    Porter,    210  Rudolph,  221  U.  S.  547.  55^  L.  Ed.  848,  31 

U.    S.    177,    52   L.    Ed.   1012,   28    S.    Ct.   647,  S.   Ct.  679. 

affirming  38   Ind.  App.  226,  74  N.   E.  260.  It   is  within   the   power   of  congress   to 

See  ante,  DUE  PROCESS   OF  LAW,  p.  create  a  special  improvement  district,  and 

charge    the     cost      of      an      improvement 


■±  I  .i. 


5-13c.  Legislation  not  denying  the  equal  therein  according  to  the  benefits  received 

protection    of    the    laws. — Cleveland,    etc.,  by    property    within    such    district.      Bris- 

R.  Co.  V.  Porter,  210  U.  S.  177,  52  L.  Ed.  coe  v.   Rudolph,  221   U.   S.   547,   55   L.   Ed. 

1012,  28  S.  Ct.  647.  See  ante,  COXSTITU-  848,   31    S.   Ct.   079. 

TIONAL  L.\W.  p.  264.  9-38a.    Notice   of  meetings   of   common 

7-28a.    Private   property   not   taken   for  council  to  confirm  assessment  not  essen- 

public    use    without    compensation — Bris-  tial. — English    z\    Griffith,    214    U.    S.    359, 

coe   V.    Rudolph,   221   U.    S.   547,   55    L.    Ed.  53   L.   Ed.   1030,  29   S.   Ct    658. 

848,   31    S.    Ct.    679,    affirming   32   App.   D.  9-42.       Drainage       assessments — Notice 

C.   167.  and    opportunity    to    be    heard. — A     state 

7-28b.    Question  of  excessiveness  of  as-  statute    authorizing    an    appointed    drain- 

sessment    one    of    fact. — Briscoe     f.      Ru-  age    board    to    determine    whether   a   pro- 

dolph.  221   U.  S.  547,  55   L.   Ed.  848,  31   S.  posed   drain   will   be   a   pul:)lic   benefit   and 

'Ct.  679.  to    create    a    drainage    district    consisting 

7-29.     A    state    may    create    special    im-  of  land  which  it  decides  will  be  benefited 

1111 


9-11  SPECIAL  ASSESSMENTS.  Vol.  XL 

A  charter  provision  making  conclusive  the  finding  of  a  city  council 

that  a  proper  petition  for  a  public  improvement  has  been  filed  does  not  deny  the 
due  process  of  law  guaranteed  by  the  constitution  of  the  United  States,^^''  al- 
though such  finding  is  made  without  notice.'*-*' 

But  something  more  than  an  opportunity  to  submit  in  writing  to  the 
city  council,  sitting  as  a  board  of  equalization,  all  objections  to,  and  com- 
plaints of,  an  assessment  for  a  public  improvement,  is  essential  to  satisfy  the 
due  process  of  law  guaranteed  by  the  constitution,  where  the  law  denies  the 
landowners  the  right  to  object  in  the  courts  to  the  assessment,  upon  the  ground 
that  the  objections  are  cognizable  only  by  the  board  of  equalization.'* ^'^ 

6.  EsTOPPEiv  TO  Object  to  Failure:  to  Give  Notice. — No  objection  to  fail- 
ure to  give  notice  of  meetings  of  the  common  council  on  proceedings  to  confirm 
a  special  assessment  is  available  to  a  property  owner  who,  after  appearing  be- 
fore the  commissioners  appointed  to  make  it,  and  protesting  solely  to  save  the 
right  of  review,  interests  himself  in  the  sale  of,  and  assists  in  disposing  of,  the 
bonds  issued  to  pay  for  the  improvement.^*"^ 

7.  Sufficiency  of  Hearing. — The  hearing  accorded  to  an  owner  of  property 
lying  directly  back  of  property  abutting  on  a  street  improvement  is  not  insufifi- 
cient  to  aft'ord  the  due  process  of  law,  nor  is  it  a  denial  of  the  equal  protection 
of  the  laws,  guaranteed  by  the  constitution  of  the  United  States,^'"'  as  giving  no 
opportunity  to  such  owner  to  be  heard  as  to  the  amount  to  be  assessed  against  his 
property,  where  the  amount  of  such  assessment  is  the  same  as  the  assessment  on 
the  abutting  property,  and  measures  the  contingent  liability  to  which  the  back- 
lying  property  may  be  subjected  if  the  abutting  property,  which  is  made  pri- 
marily liable,  fails  to  satisfy  the  assessment. ^*^'^ 

D.  Reassessment. — See  note  SS.  Where  the  statute  under  which  a  re- 
assessment is  made  makes  it  the  duty  of  the  court  to  hear  objection  to  jurors 
"before  accepting  them,"  objections  that  the  court  did  not  examine  the  jurors 
as  to  whether  they  possessed  the  qualifications  required  by  the  statute,  nor  ad- 
minister to  them  the  required  oath,  come  too  late  when  not  made  at  the  time 
the  jurors  were  accepted  and  sworn. ^^^'^    A  journal  entry  in  a  proceeding  for  the 

by   such    drain,    and    to   make    special    as-  property  lying  back  of  property  abutting 

sessments   accordingly,   is  not  invalidated  on  improvement.— Cleveland,   etc.,   R.   Co. 

by   the   due   process   of  law   clause   of   the  v.    Porter,    210    U.  S.    177,  52  L.    Ed.    1012, 

fourteenth  amendment  to  the  federal  con-  28  S.  Ct.  647,  affirming  38  Ind.  226,  74  N. 

stitution,    if   notice    is    given,    and    an    op-  E.    260.      See   ante,    CONSTITUTIONAL 

portunity  to  be  heard  is  afforded  the  land-  LAW,  p.  264;  DUE  PROCESS  OF  LAW, 

owner   before    the    assessment   becomes   a  p.   475. 

lien  against  his  property.  Soliah  v.  Hes-  11-55.  Reassessment  under  act  super- 
kin,  222  U.  S.  522,  56  L.  Ed.  294,  32  S.  Ct.  seding  act  under  which  original  assess- 
103,  afifirming  judgment  (1908),  Same  v.  ment  was  made. — A  reassessment  of 
Cormack,  117  N.  W.  125,  17  N.  D.  393.  benefits    under    Act    June    6,    1900,    c.    809, 

9-42a.    Const.  U.   S.  Amend.   14.  31   Stat.   668,   §   12,  upon   lots  benefited  by 

9-42b.    Due  process  of  law  not  denied.  the    extension    of   Eleventh    street,    in   the 

— Londoner  i\   County  of  Denver,   210  U.  District    of    Columbia,    is    properly    made, 

S.   373,   52   L.   Ed.   1103,  28   S.   Ct.   708,   re-  where    the   earlier   act    (March   3,   1899,    c. 

versing  33  Colo.  104,  80  Pac.  R.  117.     See  431.    30    Stat.     1344),    under     which      the 

ante,  DUE  PROCESS  OF  LAW,  p.  475.  original  assessment  of  benefits  was  made, 

9-42c.  Guarantee  of  due  process  of  law  had  been  superseded  by  the  new  enact- 
not  satisfied.— Londoner  v.  County  of  ment  at  the  time  of  the  court's  refusal  to 
Denver,  210  U.  S.  373,  52  L.  Ed.  1103,  28  confirm  such  assessment,  which  refusal 
S.  Ct.  708,  reversing  33  Colo.  104,  80  Pac.  was  assumed  by  the  parties  to  amount  to 
Rep.   117.  ^'^  annulment  of  the  award  of  benefits  by 

ll-50a.    Estoppel  to  object  to  failure  to  the   first  jury.     Columbia  Heights   Realty 

give  notice.— English  v.  Griffith,  214  U.  S.  Co.  v.   Rudolph,  217  U.  S.  547,  54  L.  Ed. 

359,   53   L.    Ed.   1030,  29   S.   Ct.   658,  affirm-  877,    30    S.    Ct.    581,   affirmmg   judgment   m 

ing  89   Pac.   R.  501.  Columbia    Heights    Realty     Co.    v.      Mac- 

ll-50b.     Const.   U.   S.   Amend.   14.  Farland    (1908),    31   App.    D.    C.    112. 

ll-SOc.     Hearing     accorded     owner      of  ll-56a.    When  objections  to  jurors  must 

1112 


Vol.  XL  SPECIAL  PRIVILEGES.  11-12 

reassessment  of  benefits  upon  lots  benefited  by  a  street  improvement,  which  re- 
cites that  the  oath  was  administered  to  the  jurors  in  accordance  with  the  pro- 
visions of  that  statute  under  which  the  proceeding  was  had,  imports  that  the 
statutory  oath  was  followed  as  far  as  applicable.-^'''''  The  power  of  the  court  to 
review  an  award  made  by  a  jury  appointed  to  view  the  premises  and  hear  the 
testimony  in  a  proceeding  for  the  reassessment  of  benefits  resulting  from  the 
extension  of  a  street,  is  limited  to  plain  errors  of  law,  misconduct,  or  grave  error 
of  fact,  indicating  plain  partiality  or  corruption,  in  a  case  w'here  the  evidence  was 
heard  by  the  jury  when  the  court  was  not  present. ^"^^  A  proceeding  for  the  reas- 
sessment of  benefits  upon  lots  benefited  by  a  street  improvement  taken  under  an 
act,  superseding  the  act  under  which  the  original  assessment  was  made,  can  not 
be  regarded  as  a  new  action,  for  the  purpose  of  applying  the  statute  of  limitations, 
but  must  be  deemed  a  continuance  of  the  old  proceeding.^'^'^ 
Instructions  in  Reassessment  Proceedings. — See  note  57a. 

VII.  Enforcement  and  Collection. 

C.  Action  to  Collect — Complaint. — An  allegation  in  the  complaint  in  an 
action  to  collect  a  delinquent  special  assessment,  that  defendants'  property  was 
contiguous  to  the  improvement,  must  be  taken  as  true,  where  not  denied  by  the 
answer. '^'"^ 

SPECIAL  INTERROGATORIES.— See  post.  Verdict. 

SPECIAL  MASTER.— See  ante.  Reference,  p.   1054. 

SPECIAL   PRIVILEGES.— See  ante,   Coxstitutioxae   Law,  p.   264. 

be   made. — Columbia    Heights    Realty   Co.  extension   of   Eleventh   street   in   the    Dis- 

V.   Rudolph,  217  U.   S.  547,   54  L.   Ed.   877,  trict  of  Columbia. 

30   S.   Ct.  581,   construing  Act   of  June   6,  ll-56d.       Statute     of     limitations— Pro- 

1900,    c.    809,    31    Stat.    665,    for    reassess-  ceeding   for  reassessment  not   a  new   ac- 

ment    of   benefits    upon    lots   benefited    by  tion. — Columbia    Heights     Realty    Co.    v. 

the    extension    of    Eleventh    street    in    the  Rudolph.  217  U.  S.   547.  54  L.   Ed.  877,  30 

District   of   Columbia.  S.  Ct.  581. 

The  refusal  of  the  court,  after  the  ac-  12-57a.  An  instruction  in  the  proceed- 
ceptance  and  swearing  of  the  jury,  in  a  ing  under  Act  June  6,  1900,  c.  809,  31  Stat, 
proceeding  under  the  above  statute,  to  665,  for  the  reassessment  of  benefits 
permit  counsel  to  examine  the  jurors  as  upon  the  lots  benefited  by  the  extension 
to  their  qualifications,  is  not  reversible  of  Eleventh  street,  in  the  District  of  Co- 
error,  although  counsel  was  not  present  lumbia,  is  not  open  to  the  objection  that 
at  the  time  they  were  accepted  and  the  jury  was  not  limited  to  the  benefits 
sworn,  where,  under  the  statute  and  the  resulting  immediatelj'  from  the  opening 
warning  order,  the  parties  interested  were  of  the  street,  but  might  consider  all  en- 
required  to  be  present  and  "continue  in  hancement  which  might  come  from  sub- 
attendance''  until  the  matter  was  ended.  sequent  improvement  of  or  upon  the 
Columbia  Heights  Realty  Co.  v.  Rudolph,  street,  where  the  court  eliminated  any 
217  U.  S.  547,  54  L.  Ed.  877.  30  S.  Ct.  581.  doubt  as  to  its  meaning  by  other  parts  of 

ll-56b.    Recital   in   general   entry   as   to  its    charge,    in    which    the    jury   was    told 

oath  administered    to     jurors. — Columbia  that  the  benefits  must  come  immediately 

Heights  Realt}-  Co.  v.  Rudolph,  217  U.  S.  from  the  extension  of  the  street,  and  not 

547,  54  L.  Ed.  877,  30  S.  Ct.  5S1.  from   any   subsequent   improvement.      Co- 

11-56C.    Power  of  court  to  review  award  lumbia    Heights    Realtj'    Co.    v.    Rudolph, 

of  jury.- Columbia   Heights   Realty   Co.  v.  217  U.  S.  547,  54  L.  Ed.  877,  30  S.  Ct.  5S1. 

Rudolph,  217  U.  S.  547,  54  L.  Ed.  877,  30  12-60a.     Allegation   in    complaint    taken 

S.    Ct.    581,    construing     Act    of    June    6,  as    true    where    not    denied    by   answer. — 

1900,    ch.   809,   31    Stat.    665,    for   the    reas-  English   v.    Griffith,   214   U.    S.   359,    53    L. 

sessment    of    benefits    resulting    from    the  Ed.  1030,  29  S.  Ct.  658. 

1113 


19-23  SPECIFIC  PERFORM  AN  CB.  Vol.  XI. 


SPECIFIC  PERFORMANCE. 

III.  statute  of  Frauds,  1114. 
A.  Part  Performance,   1114. 

VI.  Particular   Contracts  and  Transactions   Considered,    1114. 
H.  Real  Property  Contracts,   1114. 

4.  Vendor  Not  Informed  as  to  Identity  of  Person  for  Whom  Pur- 

chase Is  Made,  1114. 

5.  Belief  of  Vendor  That  Contract  Alerely  Gave  an  Option,  1114. 

VIII.  Pleading  and  Practice,   1114. 

A.  Bill,  1114. 

5.  Variance  between  Allegation  and  Proof,  1114. 

CROSS  REFERENCES. 

See  the  title  Specific  Pe;rformaxce,  vol.  11,  p.  14,  and  references  there 
given. 

In  addition,  see  post.  Vendor  and  Purchaser. 

As  to  objections  raised  for  the  first  time  on  appeal,  see  ante,  Appeal  and 
Error,  p.  34.  As  to  when  a  federal  circuit  court  has  original  jurisdiction  of 
the  suit,  see  ante.  Courts,  p.  398.  As  to  the  jurisdiction  of  a  state  court  to 
compel  the  assignment  of  a  patent,  see  ante,  Courts,  p.  398.  As  to  the  right 
of  an  executor  to  maintain  the  action,  see  ante,  Executors  and  xA.dministr.\- 
tors,  p.  564. 

III.    Statute  of  Frauds. 

A.  Part  Performance. — Specific  performance  of  an  oral  contract  for  the 
sale  of  real  property,  partly  performed,  is  properly  refused  to  the  vendee, 
where  the  contract  is  unreasonable,  if  not  unconscionable,  and  the  petition  dis- 
closes on  its  face  that  the  vendee  has  in  his  possession  money  belonging  to  the 
vendor  which  is  more  than  adequate  to  cover  any  possible  damages  resulting 
from  the  vendor's  refusal  to  convey.--*^ 

VI.     Particular  Contracts   and  Transactions   Considered. 

H.  Real  Property  Contracts — 4.  Vendor  Not  Informed  as  to  Identity 
OF  Person  for  Whom  Purchase  Is  Made. — Specific  performance  of  a  contract 
for  the  sale  of  real  property  will  not  be  refused,  in  the  absence  of  fraud,  be- 
cause the  vendor  was  not  informed  as  to  the  identity  of  the  person  for  whom 
the  purchase  was  made,  where  he  knew  that  the  person  named  in  the  con- 
tract as  the  vendee  was  not  the  real  purchaser,  and  sufifered  no  loss  thereby.^^b 

5.  Belief  of  Vendor  That  Contract  Merely  Gave  an  Option. — The 
belief  of  the  vendor  when  signing  a  contract  for  the  sale  of  real  property  that 
it  merely  gave  an  option  is   no  defense  to  a  suit   for  specific  performance.^-^'^ 

VIII.    Pleading  and  Practice. 
A.    Bill — 5.   \"ariance   between   Allegation   and   Proof. — Contract   and 
Deed  Supporting  Allegation  in  Bill. — An  allegation  in  a  suit  for  the  specific 
performance  of  a  contract   for  the  sale  of  real  property  that  the  vendee  sold 

19-24a.     Specific    performance     of      oral  identity  of  person  for  whom  purchase  is 

contract    for   sale    of   realty   orooerlv   re-  made.— Lenman    v.    Jones,    222    U.    S.    51, 

fused.— HafiFner    v.    Dohrinski,    215    U.    S.  56  L.   Ed.  89.  32   S.  Ct.   18. 

446,  54  L.  Ed.  277,  30  S.  Ct.  172,  affirming  23-53c.     Belief   of   vendor   that   contract 

17   Okl.  438,   88  Pac.  1042.  merely  gave  an  option. — Lenman  v.  Tones, 

23-53b.     Vendor   not     informed     as      to  222  U.  S.  51,  56  L.  Ed.  89,  32  S.  Ct.  18. 

1114 


Vol.  XL  STARE  DECISIS.  24-30 

all  her  rights  under  the  contract  to  complainant  is  supported  by  a  contract  by 
which  the  vendee  agreed  to  sell  the  land  to  complainant,  and  by  a  deed  to  him, 
purporting  to  be  from  both  vendor  and  vendee,  but  signed  only  by  the  latter, 
reciting  the  transactions  on  which  it  is  founded. ^^^ 

SPEED.— See  ante,  Collisiox.  p.   243;   Ships  axd  Shipping,  p.   1096. 

SPENDTHRIFTS  AND  SPENDTHRIFT  TRUSTS.— See  the  title  Spend- 
thrifts AND  Spendthrift  Trusts,  vol.   11,  p.  26,  and  references  there  given. 

SPIRITS,  WINES  AND  BEVERAGES.— See  ante,  Intoxicating  Liquors, 
p.  803:  Revenue  Laws,  p  1071. 

SPIRITUOUS  LIQUORS.— See  ante,  Ixtoxicatixg  Liquors,  p.  803. 

SPONGES. — See  ante,  Coxstitutioxal  Law,  p.  264;  Ixterstate  and  For- 
eigx  Commerce,  p.  689;  post,  L'nited  States. 

STALE  DEMAND.— See  ante,  Laches,  p.  818. 

STAMP  TAX.— See  ante.  Revenue  Laws,  p.  1071. 


STARE  DECISIS. 

III.  Decisions  Applicable,   1115. 

C.  Obiter  Dicta,  1115. 

D^.  Affirmance  upon   Equal    Division   of   Opinion,    1115. 

IV.  Decisions  of  Other  Tribunals  as  Precedents,    1116. 

D.  Federal  Decisions  in  State  Courts,  1115. 

F.    Decisions  of  the   Supreme   Court   of   Hawaii  in  the   Supreme   Court 
of  the  L'nited  States,   116. 

V.  Overruling  and  Qualifying  Decisions,    1116. 

CROSS   REFERENCES. 

See  the  title  Stare  Decisis,  vol.  11,  p.  27,  and  references  there  given. 
In  addition,  see  ante.  Appeal  and  Error,  p.  34. 

As  to  decisions  sustaining  legislation  relating  to  the  refunding  of  county  bonds, 
see  ante,  ^Municipal,  County,  State  and  Federal  Securities,  p.  906. 

III.   Decisions  Applicable. 

C.  Obiter  Dicta. — See  note  8.  Where  a  case  is  dismissed  for  want  of  juris- 
diction, any  opinion  expressed  upon  an  issue  involved  in  the  case  is  obiter.^* 
See  note  12. 

D|.  Affirmance  upon  Equal  Division  of  Opinion. — An  affirmance  in  the 
federal  supreme  court  upon  equal  division  of  opinion  is  not  an  authority  for 
the  determination  of  other  cases,  either  in  that  court  or  in  the  inferior  federal 
courts.  ^2^ 

24-59a.     Contract    and    deed    supporting  Co.,  216  U.  S.  420.  427.  54  L.  Ed.  544,  30 

allegation  in  bill. — Lenman  v.   Jones,   222  S.    Ct.   242. 

U.  S.  51,  5G  L.  Ed.  89,  32  S.  Ct.  18,  affirm-  30.12.     Opinions    that    are     not      obiter 

ing  33  App.  D.  C.  7.  dicta.— Union  Pac.   R.   Co.  v.   ^Mason,  etc., 

29-8.     An    opinion    upon    an    issue    not  r    Co.,  222  U.   S.  237,  246,  56  L.  Ed.  180, 

raised   by   the    pleadings    and    concerning  33    3.    Ct.   86;    Ontario   Land   Co.   z:   Wil- 

which   there   is   no  proof  is   obiter.     Roura  fong-.  223  U.  S.  543,  559,  56  L.  Ed.  544,  32 

z:    Philippine   Islands,    218   U.    S.   386,   399,  5.   Ct.   328. 

^■^«t'^^^' 3I^^-^'-^^^  ^'  ^^'  ~^''  A                 •  30-13a.    Affirmance  upon  equal  division 

29-9a^    Opinion    expressed    upon    issue  ^^   opinion.-Hertz   r.    Woodman,   218    U. 

involved    in    case    dismissed    for    want    of  3    ^^    .^  j^    g^    ^p^^    3^  g.  Ct.  621. 
jurisdiction. — Wright   r.    Georgia    R.,   etc., 

1115 


31 


STATE  OFFICERS. 


Vol.  XI. 


IV.    Decisions  of  Other  Tribunals  as  Precedents. 

D.  Federal  Decisions  in  State  Courts. — A  decision  of  the  United  States 
supreme  court  in  a  matter  of  federal  jurisdiction  must  be  regarded  as  of  bind- 
ing authority  on  a  state  court  of  last  resort. ^"^^ 

F.  Decisions  of  the  Supreme  Court  of  Hawaii  in  the  Supreme  Court 
of  the  United  States. — See  note  20a. 

V.    Overruling  and  Qualifying  Decisions. 

Whether  or  not  the  rule  of  stare  decisis  shall  be  followed  or  departed  from 
is  a  question  entirely  within  the  discretion  of  the  court  when  called  upon  to 
consider  a  question  once  decided.--'^ 

STATE  LANDS.— See  ante,  Public  Lands,  p.   1012. 

STATEMENT  OF  FACTS.— See  ante,  Appkal  and  Error,  p.  34;  Excep- 
tions, Bill  of,  and  Statement  oe  Facts  on  Appeal,  p.  559. 
STATE  OFFICERS.— See  ante,  Public  Officers,  p.   1035. 


31-16a.  Decision  of  supreme  court  in 
a  matter  of  federal  jurisdiction. — United 
Land  Ass'n  v.  Abrahams,  208  U.  S.  61-1, 
52  L.  Ed.  645,  28  S.  Ct.  569,  affirming  139 
Cal.    370,    69    Pac.    1064. 

31-20a.  The  holding  of  the  Hawaiian 
supreme  court  that  a  person  seeking  the 
registration  and  confirmation  in  the  court 
of  land  registration  of  a  title  which  de- 
pends upon  an  unexecuted  decree  is,  as 
against  the  holder  of  the  outstanding  le- 
gal title,  in  the  same  position  as  a  party- 
asking  the  aid  of  a  court  of  chancery  in 
executing  a  former  decree,  and  takes  the 
risk  of  opening  up  such  decree  for  re- 
examination, will  be  followed  by  the 
federal  supreme  court.  Lewers  v.  Atch- 
erly,  222  U.  S.  285,  56  L.  Ed.  202,  32  v^. 
Ct.  94. 

The  federal  supreme  court  will  follow 
a  decision  of  the  Hawaiian  supreme  coiut 
that  a  judgment  of  the  land  commission 
of  1845,  adjudging  a  parcel  of  land  to  a 
specified  person  in  fee  simple,  can  not 
be  attacked  except  by  a  direct  appeal  to 


the  supreme  court  provided  by  law. 
Lewers  v.  Atcherly,  222  U.  S.  285,  56  L. 
Ed.   202,   32    S.    Ct.   94. 

The  federal  supreme  court  will  follovv 
the  construction  given  by  the  supreme 
court  of  Hawaii  to  a  statute  first  enacted 
on  May  24,  1866,  legitimating  children 
born  out  of  wedlock  upon  the  marriage 
of  their  parents,  as  not  applicable  to  the 
issue  of  an  adulterous  relation.  Kealoha 
V.  Castle,  210  U.  S.  149,  52  L.  Ed.  998,  28 
S.   Ct.   684. 

31-22a.  Whether  rule  of  stare  decisis 
shall  be  followed  is  discretionary  with 
court. — Hertz  v.  Woodman,  21S  U.  S.  205, 
54    L.    Ed.    1001,    30    S.    Ct.    02.1. 

A  decree  of  the  Hawaiian  supreme 
court  overruling  a  demurrer  to  the  bill 
in  a  suit  over  the  title  to  real  property 
does  not  preclude  that  court  from  adopt- 
ing a  contrary  principle  when  the  con- 
troversy again  comes  before  it.  Lewers 
V.  Atcherly,  222  U.  S.  285,  56  L.  Ed.  202, 
32   S.    Ct.   94. 


1116 


\o\.  XL  STATES. 

STATES. 

I.  Definitions  and  Distinctions,   1117. 

II.  Sovereignty  and  Powers  of  States  and  Relation  to  Federal  Gov- 

ernment,  1118. 

B.  Power  over  Particular  Subjects,  1118. 

C.  Power  over   Places   Purchased   from   States   by   Federal   Government, 

1118. 

III.  Relations  of  States  to  One  Another,   1118. 

IV.  Relations  between  State  and  Its  Counties  and  Municipal  Corpo- 

rations,  1118. 

V.  Admission  of  States,    1118. 
VI.  Boundaries,   1118. 

X.  Agreements  or  Compacts  between  States  or  between  State  and 
Foreign  Power,  1118. 
C.  Construction  of  Compacts,   1118. 

XI.  Debts,   1119. 
XIV.  Suits  by  and  against  States,   1119. 
B.  Suits  against  States,   1119. 

1.  Liability  to  or  Immunity   from  Suit,   1119. 

b.  Under  Federal  Constitution,   1119. 
(1)   General   Rule,   1119. 

(3)  Suits  in  Federal  Courts,   1119. 
(b>4)    Suits   by   Individuals,    1119. 

(4)  Waiver   of    Immunitv,    1119. 
(a)   In    General,    1119. 

2.  What  Constitutes  a  Suit  against  a  State,  1120. 

b.  Suits  to  Which  State  Not  a  Party  on  the  Record,  1120. 

(1)   In  General,   1120. 

(3)   Suits  against  State  Officers,    1120. 

(a)   Suits   to   Enforce   State's   Contracts,    1120. 
(e)   Suits    to    Redress    or    Prevent    Tortious    Acts    of 
Officers,   1120. 
cc.  Suits    in    Injunction.     ^Mandatory    Decree     or 
^landamus,   1120. 
(aa)   In    General,    1120. 

(bb)   Injunctions  against  Enforcement  of  Un- 
constitutional  Enactment.    1120. 

c.  Suits  against  County,   1121. 

d.  Suits   against    Public    Corporations,    1121. 
4.  Pnocedure.   1121. 

f.  Pleading,   1121. 

CROSS  REFERENCES. 

See  the  title  States,  vol.  11,  p.  33.  and  references  there  given. 
In  addition,  see  ante.  Courts,  p.  398;  post,  Taxatiox. 

I.     Definitions   and   Distinctions. 

The  definition  of  "a  state"  is  found  in  the  powers  possessed  by  the  original 
states   which    adopted   the   constitution — a   definition   emphasized    by   the   terms 

1117 


35-41  STATES.  Vol.  XI. 

employed    in    all    subsequent    acts    of    congress    admitting   new    states    into    the 
Union.2* 

11.    Sovereignty  and  Powers  of  States  and  Relation  to  Federal  Govern- 
ment. 

B.  Power    over    Particular    Subjects. — Eminent   Domain. — As   to  the 

right  of  a  state  to  exercise  the  power  of  eminent  domain,  see  ante,  Eminent 
Domain,  p.  537. 

Railroads. — As  to  state  regulation  of  railroads,  see  ante,  Railroads,  p.  1046. 

C.  Power  over  Places  Purchased  from  States  by  Federal  Govern- 
ment.— Under  the  constitution  of  the  United  States,  congress  is  given  the 
power  "to  exercise  exclusive  legislation  in  all  cases  whatsoever  *  *  *  over 
all  places  purchased  by  the  consent  of  the  legislature  of  the  state  in  which  the 
same  shall  be,  for  the  erection  of  forts,  magazines,  arsenals,  dockyards,  and 
other  needful  buildings."-*^  "The  exclusive  power  of  legislation  necessarily 
includes  the  exclusive  jurisdiction. "2° 

III.    Relations  of  States  to  One  Another. 

The  state  of  Oregon  can  not,  by  virtue  of  its  concurrent  jurisdiction,  under 
the  Act  of  Congress  of  February  14,  1859  (11  Stat,  at  L.  383,  chap.  33),  over 
the  Columbia  River,  make  criminal  the  operation  of  a  purse  net  in  that  river 
within  the  territorial  limits  of  the  state  of  Washington,  under  authority  and 
license  from  that  state. ^'^ 

IV.    Relations  between  State  and  Its  Counties  and  Municipal  Corpora- 
tions. 

As  to  the  relations  between  a  state  and  the  counties  thereof,  see  ref- 
erences, ante,  under  Counties,  p.  397. 

As  to  the  relations  between  a  state  and  the  municipal  corporations 
thereof,  see  ante.  Municipal  Corporations,  p.  895. 

V.    Admission  of  States. 

As  to  the  admission  of  states  into  the  Union,  see  ante,  Constitutional  Law, 
p.  264. 

VI.  Boundaries. 

As  to  boundaries  between  states,  see  ante.  Boundaries,  p.  206. 

X.     Agreements   or   Compacts   between   States   or  between   State   and 

Foreign  Power. 

C.  Construction  of  Compacts. — As  to  the  construction  of  particular  com- 
pacts, see  note  12a. 

35-2a.    Definition.— Coyle   v.   Smith,   221  Western  Union  Tel.  Co.  v.  Chiles,  214  U. 

U.    S.   559,   55   L.   Ed.   853,   31    S.   Ct.   688.  S.    274,    53    L.    Ed.    994,   29    S.    Ct.    613. 

35-2b.  Power  of  federal  government  35-2d.  Concurrent  jurisdiction  of  Ore- 
over  places  purchased  from  states.—  gon  and  Washington  over  Columbia 
Const.   U.   S.,   art.    1,   §   8,   par.   17.  river.- Nielsen  v.   Oregon,  212  U.   S.  315, 

35-2C.     Western     Union      Tel.      Co.      v.  53   L.   Ed.  528,  29  S.  Ct.  383. 
Chiles,  214  U.  S.  274,  53  L-  Ed.  994,  29  S.  41-12a.    A   contract   between   the   states 

Ct.   613.  of    Virginia    and    West     Virginia,      under 

The    exclusive   legislative   power   which  which  the  latter  assumed  the  payment  of 

congress     possesses      over     the      Norfolk  her  just  and  equitable   share   of  the   debt 

navy    yard    excludes    the    giving    of    any  of    the    original    state    of   Virginia    at    the 

operation    or    effect,    within    the    limits    of  time  of  the  creation   of  West  Virginia  as 

such  navy  yard,  to  the  provisions  of  Va.  a    state,    whoever    might    be    the    persons 

Code,   1904,  pp.   096,   697,   imposing  a  pen-  to  whom   ultimately  the   payment   was   to 

alty  upon  telegraph  companies  for  failure  be    made,    was    established    by    the    pro- 

to    deliver    a    message    to    the    addressee.  visions    of    Const.    W.    Va.    1861,    art.    8, 

1118 


Vol.  XL 


STATUS. 


41-43 


XI.    Debts. 

Apportionment  of  Debts  upon  Division  of  State. — See  note  13. 
XIV.    Suits  by  and  against  States. 

B.  Suits  against  States — 1.  Liability  to  or  Immunity  from  Suit — b. 
Under  Federal  Constitution — (1)  General  Rule. — With  the  exception  named 
in  the  constitution  of  the  United  States,  every  state  has  absolute  immunity 
from  suit.  Without  its  consent  it  can  not  be  sued  in  any  court,  by  any  per- 
son, for  any  cause  of  action  whatsoever. ^■^'^ 

(3)  Suits  in  Federal  Courts — (b^)  Suits  by  Individuals. — A  bill  in  equity 
to  compel  the  specific  performance  of  a  contract  between  individuals  and  a 
state  can  not,  against  the  objection  of  the  state,  be  maintained  in  a  court  of 
the  United  States.^^a 

(4)  Waiver   of   Immunity — (a)     In   General. — It   is   elementary   that,   even 


§  8,  for  the  assumption  of  an  equitable 
proportion  of  the  Virginia  public  debt 
existing  prior  to  January  1,  1861,  and  of 
Act  Va.  May  13,  1862  (Acts  1862-63,  c. 
1),  consenting  to  the  formation  of  the 
new  state  on  those  terms,  and  of  the 
sanctioning  Act  of  congress  ,of  Decem- 
ber 31,  1862  (chapter  6,  12  Stat.  633),  and 
the  contract  so  established  was  not  modi- 
fied or  affected  in  any  practical  way  by 
the  preliminary  suggestions  as  to  the 
special  mode  of  ascertaining  a  just  pro- 
portion of  the  debt,  contained  in  the 
Wheeling  ordinance  of  August  20,  1861, 
for  the  formation  of  the  new  state,  which 
is  not  mentioned  in  any  of  the  other  en- 
actments. Virginia  v.  West  Virginia,  220 
U.  S.  1,  55  L.  Ed.  353,  31  S.  Ct.  330. 

Legislation  not  violating  compact  of 
1789  between  Virginia  and  Kentucky. — 
Requiring  upon  notice  and  hearing  the 
listing  of  land  titles  for  taxation  for  cer- 
tain specified  years,  or,  in  default  thereof, 
forfeiting  such  title  to  the  state,  as  is 
done  by  Act  Ky.  March  15.  1906,  c.  22, 
art.  3,  does  not,  as  to  titles  under  grants 
from  the  state  of  Virginia,  violate  the 
provisions  of  the  compact  of  1789,  be- 
tween the  states  of  Virginia  and  Ken- 
tucky (Ky.  St.  p.  43),  for  the  security  of 
private  rights  existing  at  the  time  of  the 
separation  of  the  states,  to  be  determined 
by  the  then  existing  laws  of  Virginia. 
Kentucky  Union  Co.  v.  Kentucky,  219  U. 
S.  140,  55  L.  Kd.  137.  31  S.  Ct.  171,  af- 
firming judgments   (1907),   106   S.  W.   260, 

127  Ky.    667   and    (1908),    108    S.    W.    931. 

128  Ky.  610,  111  S.  W.  362,  33  Ky.  Law 
Rep.   857. 

41-13.  Virginia — West  Virginia  case. — 
The  public  debt  of  the  original  state  of 
Virginia,  an  equitable  proportion  of 
which  was  assumed  by  West  Virginia  at 
the  time  of  its  creation  as  a  state,  need 
not,  because  incurred  for  local  improve- 
ments, be  divided  according  to  the  terri- 
tory in  which  the  money  was  expended, 
since  in  form  the  debt  was  an  investment 
which  generally  took  the  shape  of  a  sub- 


scription for  stock  in  a  corporation,  mak- 
ing it  an  adventure  on  behalf  of  the 
whole  state;  all  the  expenditures  having 
the  ultimate  good  of  the  whole  state  in 
view.  Virginia  v.  West  Virginia,  220  U. 
S.   1,  55   L.  Ed.  353,  31   S.   Ct.  330. 

The  valuation  of  the  real  and  personal 
property  of  the  two  states  of  Virginia 
and  West  Virginia  on  the  date  of  their 
separation,  excluding  slaves,  is  the  proper 
basis  for  determining  the  equitable  pro- 
portion of  the  public  debt  of  the  original 
state  of  Virginia  which  was  assumed  by 
the  state  of  West  Virginia  at  the  time  of 
its  creation  as  a  state,  subject  to  the 
qualification  that  the  difference  between 
Virginia's  share  on  this  ratio  and  the 
amount  which  her  creditors  were  content 
to  accept  from  her  should  be  deducted 
from  the  sum  to  be  apportioned.  Vir- 
ginia V.  West  Virginia,  220  U.  S.  1,  55 
L.   Ed.   353,   31   S.  Ct.  330. 

The  liability  of  the  state  of  West  Vir- 
ginia, assumed  at  the  time  of  its  creation 
as  a  state,  for  an  equitable  proportion  of 
the  public  debt  of  the  original  state  of 
Virginia,  was  not  discharged  by  changes 
in  the  form  of  the  debt,  nor  split  up  by 
the  unilateral  attempts  of  Virginia  to  ap- 
portion specific  parts  to  the  two  states. 
Virginia  v.  West  Virginia,  220  U.  S.  1, 
55    L.    Ed.   353,   31    S.    Ct.   330. 

43-24a.  Immunity  from  suit. — Hopkins 
V.  Clemson  Agricultural  College,  221  U. 
S.  636,  55  L.  Ed.  890,  31  S.  Ct.  654.  See, 
also,  ante,  COURTS,  p.  398. 

The  provision  of  the  federal  constitu- 
tion, that  no  suit  shall  be  brought  against 
any  state  by  citizens  of  another  state  ap- 
plies to  a  suit  brought  against  a  state  by 
its  own  citizens  as  well  as  to  one  brought 
bv  a  citizen  of  another  state.  Ex  parte 
Young,  209  U.  S.  123,  52  L.  Ed.  714,  28 
S.    Ct.   441. 

43-25a.  Bill  to  compel  specific  perform- 
ance of  a  contract. — Murrav  v.  Wilson 
Distilline-  Co..  213  U.  S.  151,  53  L.  Ed. 
742.  29  S.  Ct.  458.  See  ante,  COURTS, 
p.    398. 


1119 


46-53 


STATUS. 


Vol.  XL 


if  a  state  has  consented  to  be  sued  in  its  own  courts  by  one  of  its  creditors, 
a  right  would  not  exist  in  such  creditor  to  sue  the  state  in  a  court  of  the  United 
States."^^ 

2.  What  Constitutes  a  Suit  against  a  State — b.  Suits  to  Which  State 
Not  a  Party  on  the  Record — (1)  In  General. — See  note  39.  Immunity  from 
suit  is  a  high  attribute  of  sovereignty — a  prerogative  of  the  state  itself — which 
can  not  be  availed  of  by  public  agents  when  sued  for  their  own  torts.'*'^* 

(3)  Suits  against  State  Officers — (a)  Suits  to  Enforce  State's  Contracts. — 
See  note  42. 

(e)  Suits  to  Redress  or  Prevent  Tortious  Acts  of  Officers — cc.  Suits  in 
Injunction,  Mandatory  Decree  or  Mandamus — (aa)   In  General. — See  note  49. 

(bb)  Injunctions  against  Enforcement  of  Unconstitutional  Enactment. — See 
note  51.     Individuals  who,  as  officers  of  the  state,  are  clothed  with  some  duty 


46-35a.  Consent  of  state  to  be  sued  in 
its  own  courts. — Murray  v.  Wilson  Dis- 
tilling Co.,  213  U.  S.  151,  53  L.  Ed.  742, 
29   S.   Ct.  458. 

47-39.  When  immunity  applies  though 
proceeding  is  nominally  against  an  of- 
ficer.— "Looking  through  form  to  sub- 
stance, the  eleventh  amendment  has  been 
held  to  apply,  not  only  where  the  state 
is  actually  named  as  a  party  defendant 
on  the  record,  but  where  the  proceeding, 
though  nominally  against  an  officer,  is 
really  against  the  state,  or  is  one  to 
which  it  is  an  indispensable  party.  No 
suit,  therefore,  can  be  maintained  against 
a  public  officer,  which  seeks  to  compel 
him  to  exercise  the  state's  power  of  taxa- 
tion, or  to  pay  out  its  money  in  his  pos- 
session on  the  state's  obligation,  or  to 
execute  a  contract,  or  to  do  any  affirma- 
tive act  which  affects  the  state's  political 
or  property  rights."  Hopkins  v.  Clemson 
Agricultural  College,  221  U.  S.  636,  55  L. 
Ed.    890,    31    S.    Ct.    654. 

47-40a.  Immunity  does  not  extend  to 
public  agents  sued  for  their  own  torts. — 
Hopkins  v.  Clemson  Agricultural  College, 
221   U.   S.  636,  55  L.   Ed.  890,  31   S.   Ct.  654. 

The  eleventh  amendment  of  the  con- 
stitution was  not  intended  to  afiford  such 
agents  "freedom  from  liability  in  any 
case  where,  under  color  of  their  office, 
they  have  injured  one  of  the  state's  citi- 
zens. To  grant  them  such  immunity 
would  be  to  create  a  privilege  class,  free 
from  liability  for  wrongs  inflicted  or  in- 
juries threatened.  Public  agents  must  be 
liable  to  the  law,  unless  they  are  to  be 
put  above  the  law.  For  how  'can  these 
principles  of  individual  liberty  and  right 
be  maintained  if,  when  violated,  the  ju- 
dicial tribunals  are  forbidden  to  visit 
penalties  upon  individual  offenders  *  *  * 
whenever  they  interpose  the  shield  of  the 
state?  *  *  *  The  whole  frame  and  scheme 
of  the  political  institutions  of  this  coun- 
try, state  and  federal  protest"  against  ex- 
tending to  any  agent  the  sovereign's  ex- 
emption from  legal  process.  Virginia 
Coupon  Cases.  114  U.  S.  269,  291,  29  L. 
Ed.  185,  5  S.  Ct.  903,  923,  925."     Hopkins 


V.  Clemson  Agricultural  College,  221  U. 
S.   636,   55   L.    Ed.   890,   31    S.    Ct.   654. 

48-42.  The  existing  relation  of  debtor 
and  creditor  between  the  state  of  South 
Carolina  and  the  vendors  of  liquor  under 
the  state  dispensary  acts  was  not  so  al- 
tered by  the  Winding-Up  Act  of  Feb- 
ruary 16,  1907,  providing  for  the  appoint- 
ment of  a  commission  to  close  out  the 
state  dispensary  business  and  turn  over 
to  the  state  treasury  the  surplus  funds 
remaining  after  liquidating  and  paying 
claims  out  of  the  state  assets,  as  to  en- 
able a  federal  circuit  court  to  take  juris- 
diction of  a  bill  filed  by  such  vendors, 
which  seeks  to  enjoin  the  commission 
from  disposing  of  the  fund  until  their 
claims  are  paid,  and  asks  for  the  appoint- 
ment of  a  receiver,  on  the  theory  that, 
by  such  statute,  the  assets  of  the  dispen- 
sary were  placed  in  the  hands  of  the  com- 
mission as  a  trust  fund  for  the  benefit  of 
all  creditors  having  valid  claims  against 
such  fund,  which  they  are  entitled  to  en- 
force by  judicial  action  against  the  com- 
mission, without  the  presence  of  the 
state  as  a  necessary  party.  Murray  v. 
Wilson  Distilling  Co.,  213  U.  S.  151,  53 
L.    Ed.   742,   29    S.    Ct.   458. 

52-49.  A  suit  against  the  dairy  and  food 
commissioner  of  a  state  to  restrain  cer- 
tain action  taken  under  cover  of  his  of- 
fice, but  alleged  to  be  in  violation  of  the 
state  laws,  which  injuriously  afifects  the 
reputation  and  sale  of  certain  products 
manufactured  by  complainants,  is  not  a 
suit  against  the  state,  forbidden  by  the 
eleventh  amendment  to  the  federal  con- 
stitution. Scully  V.  Bird,  209  U.  S.  481, 
52    L.    Ed.   899,   28    S.    Ct.   597. 

53-51.  Injunctions  against  enforcement 
of  unconstitutional  enactments. — The  im- 
munity of  a  state  from  suit,  under  Const. 
U.  S.  amend.  11,  is  not  violated  by  main- 
taining a  suit  in  a  federal  court  to  enjoin 
the  threatened  proclamation  by  the  secre- 
tary of  state,  in  his  official  capacity,  un- 
der the  authority  of  a  state  statute  which 
violates  the  federal  constitution,  that  a 
foreign  telegraph  company  is  forbidden, 
under  the  penalty  prescribed  by  such  law, 


1120 


Vol.  XI. 


STATES. 


53-55 


in  regard  to  the  enforcement  of  the  laws  of  the  state,  and  who  threaten  and 
are  about  to  commence  proceedings,  either  of  a  civil  or  criminal  nature,  to 
enforce  against  parties  affected  an  unconstitutional  act,  violating  the  federal 
constitution,  may  be  enjoined  by  a  federal  court  of  equity  from  such  action.^^^ 

c.  Suits  against  County. — A  county  is  not  exempt  from  suit  under  the  elev- 
enth amendment  of  the  federal  constitution. -^^^ 

d.  Suits  against  Public  Corporations. — Public  corporations  are  not  clothed 
with  that  immunity  from  suit  which  belongs  to  the  state  alone  by  virtue  of 
its  sovereigntv.^'*'' 

4.    Procedure — f.    Pleading. — A   federal  circuit  court  should  not  dismiss  on 


to  continue  to  do  local  business  in  the 
state.  Decree,  Chicago,  R.  I.  &  P.  Rj-. 
Co.  r.  Ludwig  (C.  C.  1907),  156  F.  152. 
affirmed.  Ludwig  z:  Western  Union  Tel. 
Co.,  216  U.  S.  146,  54  L.  Ed.  423,  30  S. 
Ct.  280. 

A  bill  filed  in  a  federal  court  against  a 
state  commission  to  restrain  its  members 
from  enforcing  railway  passenger  rates 
established  by  such  commission,  on  the 
ground  that  such  rates  are  confiscatory, 
is  not  bad  as  an  attempt  to  enjoin  legis- 
lation or  as  a  suit  against  the  state. 
Prentis  z\  Atlantic  Coast  Line  Co.,  211 
U.   S.  210,  53   L.   Ed.  150,  29   S.   Ct.  67. 

53-51a.  Ex  parte  Young,  209  U.  S.  123, 
52  L.  Ed.  714,  28  S.  Ct.  441;  Western 
Union  Tel.  Co.  v.  Andrews,  216  U.  S. 
165,  54  L.  Ed.  430.  30  S.  Ct.  286,  reversing 
154  Fed.  95.  See  ante,  IN7UNCTIOXS. 
p.    657. 

Suits  to  enjoin  prosecuting  attorneys 
from  bringing  actions,  under  the  au- 
thority, of  a  state  statute  which  violates 
the  federal  constitution,  to  recover  the 
penalties  fixed  by  that  statute  for  viola- 
tions of  its  provisions,  are  not  suits 
against  a  state,  within  the  meaning  of 
Const.  U.  S.  amend.  11,  securing  to  the 
states  inimunity  froin  suit.  Decree  (C. 
C.  1907).  154  F.  95,  reversed.  Western 
Union  Tel.  Co.  z:  Andrews.  216  U.  S.  165, 
54  L.   Ed.  430,  30   S.   Ct.   286. 

A  federal  court  may  enjoin  the  at- 
tornev  general  of  a  state,  whose  general 
duty  is  to  enforce  the  state  statutes,  from 
proceeding  to  enforce,  against  persons 
affected,  a  state  statute  which  violates 
the  federal  constitution.  Ex  parte  Young, 
209  U.  S.  123,  52  L.   Ed.  714.  28  S.  Ct.  441. 

That  the  attorney  general  of  a  state 
must,  to  enforce  a  state  statute,  resort  to 
inandamus,  in  which  proceeding  he  or- 
dinarilv  represents  the  state  in  its  govern- 
mental capacity,  does  not  prevent  a  fed- 
eral court  from  enjoining  him  from  so 
doing,  where  the  statute  violates  the 
federal  constitution,  since,  in  such  case, 
his  act  in  attempting,  in  the  name  of 
ihe  state,  to  enforce  a  void  enactment,  is 
merely  illegal,  because  in  conflict  with 
the  superior  authority  of  the  federal  con- 
stitution, and  he  is  stripped  of  his  oi^cial 
character,  and  the  prohibition  against  his 
proceeding  does  not.   therefore,  afifect  the 


state  in  i^s  governmental  capacity.  Ex 
parte  Young,  209  U.  S.  123,  52  L.  Ed.  714, 
28   S.   Ct.   441. 

The  immunity  of  a  state  from  suit  is 
not  violated  by  entertaining  a  suit  in  a 
federal  circuit  court,  brought  by  a  for- 
eigif  railway  company  to  restrain  a 
prosecuting  attorney  from  enforcing  a 
state  statute  requiring  the  stoppage  of 
interstate  passenger  trains  at  junction 
points,  and  to  restrain  the  secretary  of 
state  from  proceedmg  under  the' authority 
of  another  state  statute  to  revoke  the 
company's  license  and  right  to  do  local 
business  because  of  bringing  suit  in  a 
federal  court.  Herndon  v.  Chicago,  etc.. 
R.  Co.,  218  U.  S.  135,  54  L.  Ed.  970,  30 
S.  Ct.  633;  Roach  z'.  Atchison,  etc.,  R.  Co, 
218  U.  S.  159,  54  L.  Ed.  978,  30  S.  Ct.  639, 
affirming  decree  in  Chicago,  R.  I.  &  P. 
Ry.  Co.  z:  Swanger  (C.  C.  1908),  157  F. 
783. 

55-54a.  County  not  exempt  from  suit. 
— Hopkins  v.  Clemson  .Agricultural  Col- 
lege. 221  U.  S.  036.  55  L.  Ed.  890,  31  S. 
Ct.  654,  reversing  77  S.  C.  12,  57  S.  E. 
551. 

55-54b.  Immunity  does  not  extend  to 
public  corporations.— Hopkins  r.  Clem- 
son Agricultural  College.  221  U.  S.  836 
55    L.    Ed.    890.    31    S.    Ct.    654. 

A  public  corporation  such  as  an  agri- 
cultural college  receiving  state  aid  and 
invested  with  municipal  powers  can  not 
avail  itself  of  the  state's  constitutional 
imrnunity  from  suit  in  a  proceeding 
against  it  for  constructing,  under  state 
authority,  but  for  its  own  corporate  pur- 
poses and  advantages,  a  dyke  upon  land 
ov.-ned  by  the  state,  but  in  the  use,  pos- 
session, and  enjoyment  of  the  college,  so 
as  to  damage  or  take  private  property 
without  due  process  of  law.  Hopkins  z'. 
Clemson  Agricultural  College,  221  U.  S. 
636,  55  L.  Ed.  890,  31  S.  Ct.  654,  reversing 
judgment,   57   S.    E.   551,   77   S.   C.   12. 

The  possibility  that  the  judgment  can 
not  be  enforced  by  levy  and  sale  under 
execution  affords  no  reason  why  a  court 
should  decline  jurisdiction  of  a  suit 
against  a  state  college  for  taking  private 
property  for  its  corporate  purposes  with- 
out due  process  of  law.  Hopkins  z: 
Clemson  .\ofricultural  College,  221  U.  S. 
636.   55    L.    Ed.   sec,   31    S.   Ct.   654. 


12    U    S    Enc— 71 


1121 


55-61  STATUTES.  \o\.  XL 

its  own  motion,  for  want  of  jurisdiction,  a  suit  against  the  dairy  and  food 
commissioner  of  a  state,  on  the  ground  that  such  suit  is  one  against  the  state, 
but  such  question  should  be  raised  by  demurrer  or  otlier  pleading.-'''''' 

STATE  TAXATION.— See  ante.  Constitutional  Law,  p.  264;  iNTURSTATit 
AND  Foreign  CommKrce,  p.  689;  post.  Taxation. 

STATUARY.— See  note  a. 

STATUTE  OF  ELIZABETH.— See  ante.  Fraudulent  and  Voluntary 
Conveyances,  p.  600. 

STATUTE  OF  FRAUDS.— See  ante.  Frauds,  Statute  of,  p.  600;  Specific 
Performance,  p.  1114. 

STATUTE  OF  LIMITATIONS.— See  ante.  Limitation  of  Actions  and 
Adverse  Possession,  p.  828. 

STATUTE  OF  USES.— See  post,  Trusts  and  Trustees. 

STATUTES. 

IV.  Enactment,   1124. 

C.  The  Legislature,  1124. 

3.  Powers,   1124. 

b.  Restricted  by  Prior  Legislature,  1124. 

D.  The  Bill,  1124. 

2.  Introduction,  1124. 
K.  Legislative  Journal,  1124. 

3.  Journal  as  Evidence,  1124. 

a.  In  General.  1124. 
L.  Enrolled  Bill,  1124. 

2.  As  Evidence,  1124. 
M.  At  Special  Session.  1124. 
N.  By  Territory,   1125. 

VIII.  Form,  1125. 

B.  Title  and  Subject,   1125. 

1.  Constitutional  Provisions,   1125. 

a.  In  General,  1125. 

d.  Compliance  with,  1125. 

IX.  Validity,  1125. 

B.  Where  Constitution  Molated,  1125. 

D.  Where  Act  Uncertain  or  Repugnant,  1125. 

G.  Of  Special  and  Local  Acts,  1125. 

2.  Under  Ignited  States  Constitution,  1125. 

55-56a.    Necessity    of    pleading. — Scully  and    under   the    authority    contained    in,    § 

V.  Bird,  209  U.  S.  481,  52  L.  Ed.  899,  28  S.  3   of   that   act,   to   make    reciprocal   agree- 

Ct.  597.  ments    with   reference,   among   other   arti- 

61-a.   Use   of   term   statuary   in  revenue  cles,  to  "paintings  in  oil  or  water  colors, 

laws. — A    bronze    bust     cast    t)y    artisans  pastels,   pen-and-ink   drawings,   and   statu- 

from   the   artist's   model   is   dutiable,   upon  ary,"  since  the  Tariff  Act  defines  statuary 

importation   from    France,   at   45   per   cent  as   including   only   such   as   is   cut,   carved, 

ad  valorem,  under  the  Tariff  Act  of  1897,  or    otherwise    wrought    by    hand    from    a 

p.  19.3,  which  covers  articles  or  wares  not  solid  block  of  marble,   stone,  or  alabaster 

specially    provided    for    in    the    act,    com-  or  from  metal,  and  such  as  is  the  profes- 

posed    wholly   or   in    part    of   metal,     and  sional  production  of  a  statuary  or  sculptor, 

whether    partly    or    wholly    manufactured,  Altman  &  Co.  v.  United  States,  224  U.  S. 

and   is   not   classifiable   as   statuary,  under  583,    56    L.    Ed.    894,    32    S.    Ct.    593.     See 

the  commercial  reciprocal  agreement  v/ith  ante,  REVENUE  LAWS,  p.  1071. 
France,     negotiated    in    accordance     with, 

1122 


Vol.  XI.  STATUTES. 

4.  Under  Act  of  Congress  in  Regard  to  Territories.  1125. 

5.  What  Acts  Are  Special  and  Local,  1126. 
N.  Extent  of  Invalidity,  1126. 

2.  Total  Invalidity,  1126. 

3.  Partial  Invalidity.   1126. 

X.  Amendment,  1127. 

E.  Effect  of  Amendment,  1127. 

XL  Repeal,  1127. 

C.  Power  to  Repeal,  1127. 

E.  Express  Repeal,  1127. 

2.  Of  Inconsistent  Acts,  1127. 

F.  Implied  Repeal,  1127. 

1.  In  General,  1127. 
ny2.  Of  Code  or  Revised  Statute,  1128. 
L.  Effect  of  Repeal,  1128. 

1.  Upon  Repealed  Act.  1128. 

a.  In  General,  1128. 

6.  Upon  Pending  Suits,  1128. 

XVI.  Construction,  1129. 

B.  Distinguished  from  Interpretation,  1129. 

G.  Alanner  of  Construction,  1129. 

2.  According  to  Intention,  1129. 

a.  In  General,  1129. 
5.  Construed  by  Implication,  1129. 
a.  In  General,  1129. 
I.  General  Rules  of  Construction,  1129. 

2.  Construed  to  Effectuate  Legislative  Intent,   1129. 

3.  Construed  as  a  Whole,  1129. 

4.  Construed  with  Reference  to  Statutes  in  Pari  Materia,  1129. 

5.  Construed  with   Reference  to  Primary  Meaning  of  Words,   1130. 

6.  Construed  as  Prospective  or  Retrospective,  1130. 

7.  Construed  Reasonably,  1130. 

12.  Later  Provision  Prevails  over  Prior,   1130. 

13.  Rule  of  Expressio  Unius,  1130. 
J.  Aids  to  Construction,  1130. 

2.  Intrinsic  Aids,  1130. 

f.  Prohibitions  and  Penalties,  1130. 

3.  Extrinsic  Aids,  1130. 

a.  Legislative  Construction,  1130. 

(1)    In  General,  1130. 

b.  Judicial  Construction,  1130. 

c.  Contemporaneous   and    Practical   Construction,    1131. 

(1)   In  General,  1131. 

(3)   By  Whom  Construed.   1131. 

d.  Legislative  History,  1131.  ' 

e.  Existing  Law  and  History,  1131. 

f.  Reason,  Purpose  and  Object.  1131. 

g.  Governmental  Policy,  1132. 
h.   Subject  Matter,  1132. 

K.  Consequences  to  Be  .^voided,  1132. 

1.  In  General,  1132. 

2.  Invalidity,  1132. 

3.  L^nconstitutionality,  1132. 

1123 


74-79  STATUTES.  Vol.  XL 

4.  Extraterritoriality,  1132. 

L.  Construction  of  Particular  Statutes,  1132. 

2.  Re-Enacted  Statutes,  1132. 

3.  Revised  Statutes  and  Codifications,  1133. 

5.  Repealed  and  Repealing  Statutes,  1133. 
11.  Penal  Statutes.  1133. 

15.  Afifecting  Rights  of  Indians,  1133. 
24.  Revenue  Statutes,  1133. 

c.  Construed  Liberally,   1133. 
28.  Other  Particular  Statutes.  1133. 
M.  Construction  of  Particular  Words  and  Phrases,  1133. 
2.  General  Terms,   1133. 

b.  Qualifying  General  Terms,  1133. 
'^(2)   By  Special  Terms,  1133. 

(b)   Ejusdem  Generis  Rule.  1133. 
aa.  Li  General,  1133. 
N.  Effect  of  Construction,  1134. 
2.  As  Stare  Decisis,  1134. 

XVn.  Operation  and  Effect,  1134. 

J.  Prevails  over  Contract,    1134. 
K.  Territorial  Extent  of  Operation.   1134. 
M.  As  to  Subsequent  Legislation,  1134. 

CROSS   REFERENCES. 
See  the  title  Statutes,  vol.  11.  p.  62,  and  references  there  given. 
In  addition,  see  ante,   Constitution.m.  Lav^,  p.  264;   Interpretation   and 
Construction,  p.  688. 

IV.    Enactment. 

C.  The  Legislature — 3.  Pov^Ers — b.  Restricted  by  Prior  Legislature. — 
While  congress  may  prescribe  rules  afifecting  after  legislation  which  does  not 
in  terms  show  that  it  is  to  be  unaffected  by  them,  these  rules  can  not  be  so 
framed  as  to  defeat  the  plain  intent  of  after  legislation,  and  they  cease  to  be 
effective  when  necessarily  in  conflict  with  a  later  manifestation  of  the  legisla- 
tive will.'*^^ 

D.  The  Bill — 2.    Introduction. — See  note  73. 

K.  Legislative  Journal — 3.  Journal  as  Evidence — a.  In  General. — A 
state  court  may  take  judicial  notice  of  the  journal  entries. ^^^ 

L.   Enrolled  Bill — 2.  As  Evidence. — See  note  37. 

M.  At  Special  Session. — Act  Feb.  7.  1906  (P.  L.  7).  authorizing  cities  in 
'close  proximity  to  be  united,  and  providing  for  the  temporary  government  of 

74-70a.    Restricted   by  prior  legislature.  with    amendments,     as      on      other     bills. 

— (1907)    Great     Xorthern      Ry.      Co.      r.  Flint  r.  Stone  Tracy  Co.,  220  U.  S.  107,  55 

United   States.   155   F.  945,   84  C.   C.  A.  93,  L.    Ed.   389,    31    S.    Ct.   342. 
judgment    affirmed.     Great    Northern    R.  78-19a.    Journal  as  evidence. — Peters  v. 

Co.  V.  United   States.  208  U.  S.  452.  52  L.  Broward.  222  U.  S.  483,  56   L.  Ed.  278,  32 

Ed.  567,  28   S.  Ct.  313.  S.    Ct.~  122.      See   ante,   JUDICIAL    NO- 

74-73.     Introduction.— The     substitution  TICE.    p.    810. 
in  the  senate  of  a  tax  on  corporations  in  79-37.    Title   as    shown     by     journal. — 

lieu    of    the    plan    of    inheritance    taxation  "When    there    is    a   variance    between    the 

contained    in    a    general   bill    for    the    col-  title    of    a    bill    as    enrolled    and     promul- 

lection    of   revenue    as    it    came    from    the  gated   and   the   title    of  the   act   as   shown 

house    of    representatives,    where    the    bill  b}^    the    journals,    the    latter    will    control 

originated,  was  not  forbidden  by  the  pro-  under  the  express  decision  of  the  highest 

visions   of   Const.   U.    S.,   art.   1,   §   7,   that  court  of  the  state  of  Florida."     Peters  v. 

all   bills   for   the    raising   of   revenue   shall  Broward,    222    U.    S.    483,    491.    56    L.    Ed. 

originate   in  the  house   of  representatives,  278,   32   S.   Ct.   122. 
tut    the    senate    may    propose    or    concur 

1124 


Vol.  XL 


STATUTES. 


l^-^l 


the  consolidated  city,  and  the  payment  of  debts,  etc.,  is  within  the  scope  of  a 
proclamation  of  the  governor  calling  an  extra  session  for  the  purpose  of  ena- 
bling cities  in  close  proximity  to  be  united  in  one  municipality.--'''  Where  the 
general  assembly  has  been  convened  by  the  governor  in  extraordinary  session 
to  meet  on  a  day  named  to  consider  certain  designated  subjects,  the  governor 
may  subsequently  before  the  day  stated  issue  another  proclamation  submitting 
additional  subjects  to  the  consideration  of  the  extra  session.'^"'' 
N.    By  Territory. — See  ante.  Constitutional  Law,  p.  264. 

Vm.    Form. 

B.  Title  and  Subject — 1.  Constitutional  Provisions — a.  In  General. — See 
note  83. 

d.  Compliance  with. — \\'hether  or  not  the  statute  complies  with  this  con- 
stitutional provision  is  a  state  and  not  a  federal  question.'^'''' 

IX.    Validity. 
B.     Where    Constitution   Violated. — An   unconstitutional   law   affords    no 
redress  from  the  courts  to  one  who  expends  money  on  the   faith  of  it.     Such 
person's  only  redress  is  the  legislature.-^^ 

D.    Where  Act  Uncertain  or  Repugnant. — See  note  2Z. 
G.    Of  Special  and  Local  Acts — 2.    Lender  United  State.s  Constitution. 
— See  ante.  Constitutional  Law,  p.  264. 
•     4.   Lender  Act  of  Congress  in  Regard  to  Territories. — See  note  36. 


79-37a.  At  special  session. — Hunter  v. 
Pittsburgh,  207  U.  S.  161,  52  L.  Ed.  151, 
28  S.  Ct.  40,  affirming  judgment  In  re 
City  of  Pittsburgh,  217  Pa.  227,  66  Atl. 
348;  Appeal  of  Hunter,  217  Pa.  227,  66 
Atl.  348;  In  re  City  of  Pittsburgh,  32  Pa. 
Super.   Ct.  210. 

79-37b.  Hunter  v.  Pittsburgh.  207  U. 
S.  161,  52  L.  Ed.  151,  28  S.  Ct.  40,  affirm- 
ing judgment  In  re  City  of  Pittsburgh, 
217,  227,  66  Atl.  348;  Appeal  of  Hunter,  217 
Pa.  227,  66  Atl.  348;  In  re  City  of  Pitts- 
burgh, 32   Pa.  Super.  Ct.  210. 

83-83.  Subject  and  title. — It  is  so  pro- 
vided by  the  constitution  of  Florida. 
Peters  v.  Broward.  222  U.  S.  483,  56  L. 
Ed.   278,   32    S.    Ct.    122.  * 

83-89a.  Compliance  with. — Peters  v. 
Broward.  222  U.  S.  483,  56  L.  Ed.  278,  32 
S.   Ct.   122.     See  ante,   COURTS,  p.  398. 

86-21a.  Where  constitution  violated. — 
Peters  v.  Broward,  222  U.  S.  483,  56  L. 
Ed.    278,    32    S.    Ct.    122. 

86-23.  Where  act  uncertain  or  repug- 
nant.— The  words  "except  in  case  of 
emergency,"  in  the  proviso  in  Act  March 
4,  1907,  c.  2939,  §  3,  34  Stat.  1416  (U.  S. 
Comp.  St.  Supp.  1909,  p.  1171),  making 
it  unlawful  for  railway  carriers  engaged 
in  transportation  in  the  District  of  Co- 
lumbia or  the  territories,  or  in  interstate 
or  foreign  commerce,  to  require  or  per- 
mit em.ployees  engaged  in  such  transpor- 
tation to  be  or  remain  on  duty  for  a 
longer  period  than  that  prescribed,  do 
not  make  the  application  of  the  act  so 
uncertain  as  to  destroy  its  validity,  even 
though  the  proviso  in  §  3,  limiting  the 
effect  of  the  entire  act,  can  be  said  to 
include     everything    which     mav    be    em- 


braced within  the  term  "emergency." 
Baltimore,  etc.,  R.  Co.  v.  Interstate  Com- 
merce Comm.,  221  U.  S.  612,  55  L.  Ed. 
878,    31    S.    Ct.    621. 

87-36.  Under  act  of  congress  in  regard 
to  territories. — The  granting  of  especial 
privileges  by  any  form  of  legislative  ac- 
tion, and  not  merely  the  conferring  of 
such  privileges  as  a  part  of  the  grant  of 
a  forbidden  private  character,  was  what 
was  prohibited  by  the  provision  of  Wash- 
ington Organic  Act  March  2,  1867.  c.  150, 
14  Stat.  426,  that  the  territorial  legisla- 
ture should  not  grant  private  charters  or 
especial  privileges,  but  might  enact  gen- 
eral incorporation  acts.  Berryman  v. 
Board,  222  U.  S.  334,  56  L.  Ed.  225,  32  S. 
Ct.  147,  reversing  decree  (C.  C.  1907), 
Board  of  Trustees  of  Whitman  College 
V.    Berryman,   156   F.   112. 

The  generic  prohibition  against  the 
granting  of  especial  privileges,  made  by 
Washington  Organic  Act  March  2,  1867, 
c.  150,  14  Stat.  426,  can  not  be  construed 
as  intended  to  forbid  merely  the  creation 
of  such  privileges  as  a  legislative  grant 
of  an  exclusive  right  to  ferries,  bridges, 
etc.,  even  if  it  be  conceded  that  such 
grants  were  a  common  form  of  terri- 
torial legislative  abuse  prior  to  the  adop- 
tion of  that  statute,  and  were  the  gen- 
erating cause  of  the  insertion  of  this  pro- 
hibition. Berryman  <■.  Board,  222  U.  S. 
334,   56   L    Ed.   225,   32   S.   Ct.   147. 

A  territorial  statute  giving  perpetual 
succession  to  an  incorporated  educational 
mstitution,  and  endowing  it  with  a  per- 
petual exemption  from  taxation  as  to  all 
its  propert}',  real  and  personal,  grants  an 
especial   privilege   within   the   meaning   of 


1125 


87-89 


STATUTES. 


Vol.  XL 


5.    What  Acts  Are  Special  and  Local. — See  note  37. 

N.    Extent  of  Invalidity — 2.   Total  Invaliuitv. — See  notes  48,  49,  50. 

3.    Partial  Invalidity. — See  note  52. 


the  provisions  of  Washington  Organic 
Act  March  2,  1867,  c.  150,  14  Stat.  42G, 
that  the  territorial  legislature  shall  not 
grant  private  charters  or  especial  privi- 
leges, btit  may  enact  general  incorpora- 
tion acts.  Berryman  v.  Board,  222  U.  S. 
334,   56   L.    Ed.  225.   32   S.   Ct.   147. 

Assent  of  congress. — The  assent  of 
congress  to  the  grant  of  an  especial 
privilege  by  the  territorial  legislature, 
contrarj'  to  the  express  provisions  of  the 
organic  act,  can  not  be  implied  from  its 
failure  to  disapprove  such  enactment. 
(1912)  Berryman  r.  Board,  222  U.  S.  334, 
56  L.  Ed.  225,  32  S.  Ct.  147,  reversing  de- 
cree (C.  C.  1907),  Board  of  Trustees  of 
Whitman  College  v.  Berrvman,  156  F. 
112. 

87-37.  What  acts  are  special  and  local. 
—Act  February  7,  1906  (P.  L.  7),  au- 
thorizing the  consolidation  of  contiguous 
cities,  is  not  in  violation  of  Const.,  art. 
3,  §  7,  forbidding  local  or  special  legisla- 
tion, though  at  the  time  of  its  passage 
the  cities  of  Pittsburg  and  Allegheny 
were  the  only  ones  in  the  state  to  which 
such  legislation  would  technically  apply. 
Hunter  t'.  Pittsburgh,  207  U.  S.  161,  52 
L.  Ed.  151,  28  S.  Ct.  40,  affirming  judg- 
ment In  re  City  df  Pittsburgh,  66  A.  348, 
217  Pa.  227  (Pa.  Super.  Ct.  1906).  In  re 
City  of  Pittsburgh,  32  Pa.   Super.   Ct.  210. 

88-48.  Total  invalidity.— As  the  part  of 
§  1283  of  the  Gen.  Laws  of  Kan.  of  1901 
in  regard  to  suits  by  foreign  corpora- 
tions wliich  relates  to  the  statement  to 
be  filed  with  the  secretary  is  unconstitu- 
tional, and  as  the  clause  in  the  same  sec- 
tion, relating  to  suits  in  the  state  court, 
is  so  dependent  upon  and  connected  with 
that  part  as  to  be  meaningless  when 
standing  alone,  the  section  must  be  held 
inoperative  in  all  its  parts.  International 
Textbook  Co.  v.  Pigg,  217  U.  S.  91.  114, 
54  L.  Ed.  678,  30  S.  Ct.  481. 

88-49.  The  invalidity,  as  applied  to  in- 
trastate commerce,  of  the  provision  of 
Employers'  Liability  Act  July  11,  1906, 
c.  3073,  34  Stat.  232  fU.  S.  Comp.  St.  Supp. 
1907,  p.  891],  that  "every  common  carrier 
engaged  in  trade  or  commerce"  in  the 
District  of  Columbia  or  in  the  territories 
or  lietween  the  several  states  shall  be 
lial)le  for  the  death  or  injury  of  "any 
of  its  employees"  which  may  result  from 
the  negligence  of  "any  of  its  officers, 
agents,  or  employees,"  invalidates  such 
provision  as  applied  to  interstate  com- 
merce. Judgments  (C.  C.  1906).  148  F. 
986.  and  (C.  C.  1907),  148  F.  997,  affirmed. 
The  Employers'  Liability  Cases,  207  U. 
S.    463,    52   L.    Ed.    297,    28    S.    Ct.    141. 

89-50.  The  validity  of  Kentucky  Acts 
1904,   chap.   85,   so   far   as   it   prohibits   do- 


mestic corporations  from  teaching  white 
and  negro  pupils  in  the  same  institution, 
can  not  be  deemed  affected  by  its  pos- 
sible invalidity  under  the  federal  con- 
stitution as  to  individuals,  where  the 
highest  state  court  considers  the  act 
separable,  and,  while  sustaining  it  as  an 
entirety,  gives  an  independent  reason 
which  applies  only  to  corporations. 
Berea  College  v.  Kentucky,  211  U.  S. 
45,   .:3   L.   Ed.  81,  29   S.   Ct.  33. 

89-52.  Partial  invalidity. — Grenada  Lum- 
ber Co.  V.  Mississippi,  217  U.  S.  433,  54 
L.  Ed.  826,  30  S.  Ct.  535;  Citizens'  Nat. 
Bank  v.  Kentucky,  217  U.  S.  443,  54  L. 
Ed.    832.    30    S.    Ct.    532. 

A  statute  which  is  clearly  separable 
may  be  valid  as  to  one  class  while  in- 
valid as  to  another.  Berea  College  v. 
Kentucky,  211  U.  S.  45,  54,  53  L.  Ed.  81, 
29    S.    Ct.    33. 

"Where  a  statute  contains  provisions 
which  are  constitutional  and  others* 
which  are  not,  efifect  may  be  given  to 
the  legal  provisions  by  separating  them 
from  the  illegal.  But  this  applies  only 
to  a  case  where  the  provisions  are 
separable  and  not  dependent  one  upon 
the  other,  and  does  not  support  the  con- 
tention that  that  which  is  indivisible  may 
l)e  divided.  Moreover,  even  in  a  case 
where  legal  provisions  may  be  severed 
from  those  which  are  illegal,  in  order  to 
save  the  rule  applies  only  where  it  is 
plain  that  congress  would  have  enacted 
the  legislation  v.'ith  the  unconstitutional 
provisions  eliminated."  The  Employers' 
Lialiilitv  Cases.  207  U.  S.  463,  501,  52  L. 
Ed.    297,   28    S.    Ct.    141. 

The  invalidity,  so  far  as  interstate  com- 
merce '^s  concerned  of  the  provisions  of 
the  federal  Employer's  Liability  Act 
(Act  June  11,  1906,  c.  3073.  §  1,  34  Stat. 
232  [U.  S.  Comp.  St.  Stipp.  1907,  p.  891]), 
does  not  invalidate  such  of  its  provisions 
as  attempt  to  regulate  commerce  within 
the  District  of  Columbia  and  the  terri- 
tories. Judgment.  Gutierrez  -v.  El  Paso 
&  N.  E.  R.  Co.  (Tex.).  117  S.  W.  426. 
affirmed  El  Paso,  etc.,  R.  Co.  f.  Gu- 
tierrez, 215  U.  S.  87,  54  L.  Ed.  106,  30  S. 
Ct.  21. 

"It  was  not  intended  to  hold  the  act 
unconstitutional  in  so  far  as  it  related 
to  the  District  of  Columbia  and  the  ter- 
ritories, for  it  is  there  suggested  that  to 
interpolate  in  the  act  the  qualifying- 
words  contended  for  would  destroy  the 
act  in  respect  to  the  Dir-trict  of  Columbia 
rud-  the  territories  In'  limiting  its  opera- 
tion in  a  field  where  congress  had  plenary 
power,  and  did  not  depend  for  its  au- 
thority upon  the  interstate  commerce 
clause    of    the    constitution.      The    act    in 


1126 


•Vol.  XI. 


STATUTES. 


91-98 


X.    Amendment. 

E.  Effect  of  Amendment. — When  for  purposes  of  an  enlargement  or  con- 
traction a  statute  is  re-enacted  or  repeated  with  amendments,  the  amendatorv 
act  is  an  affirmation  and  continuation  of  the  prior  law  in  so  far  as  in  substance 
and  operation  it  is  the  same,  and  is  to  be  regarded  as  new  legislation  only  so 
far  as  it  ditYers  from  the  prior  law.^^^ 

XI.    Repeal. 

C.  Power  to  Repeal.— See  note  83.  And  see  ante,  "Restricted  by  Prior 
Legislature,"  IV,  C,  3,  b. 

E.  Express  Repeal— 2.  Of  Lncoxsistent  Acts.— A  clause  generally  re- 
pealing all  laws  and  parts  of  laws  in  conflict  with  the  act  of  which  it  is. a  part 
repeals   nothing   that   would   not  be  equally   repealed   without   it. '•'■='' 

F.  Implied  Repeal— 1.  In  GkxKral.— See  note  3.     To  establish  the  repeal  of 


question  is  set  forth  in  full  in  a  note  to 
The  Employers'  L^iability  Cases,  207  U. 
S.  463,  4'JO,  52  L.  Ed.  297,  28  S.  Ct.  141." 
El  Paso,  etc.,  R.  Co.  v.  Gutierrez,  215  U. 
S.  87,  94,  54  L.  Ed.  106,  30  S.  Ct.  21. 

The  possible  invalidity  of  the  clause 
of  Hepburn  Act  June  29,  1906,  c.  3591,  34 
Stat.  584  (U.  S.  Coinp.  St.  Supp.  1907,  p. 
892),  imposing  penalties  for  violations  of 
its  provisions  forbidding  railway  carriers 
from  transporting  in  interstate  commerce 
commodities  v\'ith  which  they  are  as- 
sociated, or  in  which  thej'  are  interested 
can  not  afifect  the  validity  of  these  pro- 
visions, since  the  penalty  clause  is  wholly 
separable  therefrom.  Judgment  (C.  C. 
1908),  164  F.  215,  reversed.  Attorney 
General  v.  Delaware,  etc.,  Co.,  213  U.  S. 
366.   53  L.   Ed.  835,  29   S.   Ct.  527. 

The  invalidity  of  provisions  as  to  gas 
pressure  and  penalties  in  Laws  N.  Y. 
1905,  p.  2091,  c.  736,  and  Laws  1906,  p. 
235,  c.  125,  regulating  rates  in  New  York 
City,  does  not  avoid  provisions  as  to 
rates,  from  which  the  invalid  provisions 
are  clearly  separable.  Decree  (C.  C. 
1907),  Consolidated  Gas  Co.  v.  City  of 
New  York,  157  F.  849,  reversed.  Willcox 
V.  Consolidated  Gas  Co.,  212  U.  S.  19,  53 
L.   Ed.  382,  29  S.  Ct.  192. 

The  possible  unconstitutionality  of 
Sess.  Laws  Okl.  1899,  p.  188,  c.  21,  §  4, 
making  it  an  ofifense  to  sell  products  of 
petroleum  which  do  not  conform  to  the 
statutory  standard,  does  not  affect  the 
validity  of  the  other  sections  which  pro- 
vide for  inspection  and  branding.  Judg- 
ment (1907),  89  P.  212.  18  Okl.  107,  af- 
firmed. Waters-Pierce  Oil  Co.  v.  Deselms, 
212  U.  S.  159,  53  L.  Ed.  453,  29  S.  Ct.  270. 

The  possible  invalidity  as  to  individual 
carriers  of  the  provisions  of  Elkins  Act 
February  19,  1903,  c.  708,  32  Stat.  847  (U. 
S.  Comp.  St.  Supp.  1907,  p.  880),  imput- 
ing to  the  carrier  the  acts,  omissions,  or 
failures  of  its  officers  and  agents,  acting 
within  the  scope  of  their  employment, 
does  not  affect  the  validity  of  so  much 
of  that  act  as  imputes  to  corporate  car- 
riers   the    commission     i)y      officers      and 


agents,  acting  within  the  scope  of  their 
employment,  of  criminal  violations  of  the 
prohibitiions  of  that  act  against  reoates. 
Judgment  (C.  C.  1906),  United  States  v. 
Xew  York  Cent.  &  H.  R  R.  Co.,  146  F. 
:J98,  affirmed.  New  York,  etc.,  R.  Co.  v. 
United  States,  212  U.  S.  481,  53  L.  Ed. 
613,  29  S.  Ct.  304,  followed  in  New  York, 
etc.,  R.  Co.  V.  United  States,  No.  2,  212 
U.   S.  500,  53  L.   Ed.  624.  29   S.   Ct.  309. 

91-66a.  Effect  of  amendment. — Great 
Northern  R.  Co.  v.  United  States,  155  F. 
'.145,  84  C.  C.  A.  93,  judgment  affirmed, 
Great  Northern  R.  Co.  v.  United  States, 
208  U.   S.  452,  52   L.   Ed.  567,  28  S.   Ct.  313. 

92-83.  Power  to  repeal. — Acts  1895,  p. 
21,  c.  21  (Rev.  St.  1895,  tit.  60,  c.  2),  eti- 
titled  "An  act  to  encourage  irrigation 
and  to  provide  for  the  acquisition  of  prop- 
erty to  the  use  of  water  and  for  the  con- 
.■-truction  and  maintenance  of  canals, 
ditches,  flumes,  dams,  reservoirs,  and 
wells  for  irrigation,  and  for  inining,  mill- 
ing, the  construction  of  waterworks  and 
stock  raising,"  and  providing  for  the  or- 
ganization of  corporations  for  the  pur- 
poses mentioned,  and  giving  such  corpo- 
rations the  power  of  eminent  domain, 
docs  not  violate  Const.,  art.  3,  §  35,  on 
the  ground  that  both  the  title  and  body 
')f  the  act  express  more  than  one  sub- 
ject. Judgment  (1905),  86  S.  W.  11,  98 
Tex.  494,  107  Am.  St.  Rep.  640,  affirmed. 
Borden  v.  Trespalacios  Rice,  etc.,  Co., 
•-^04  U.   S.  667,  51  L.   Ed.  671,  27  S.  Ct.  785. 

93-93a.  Of  inconsistent  acts.— (1907) 
Great  Northern  Ry.  Co.  v.  United  States, 
155  F.  945,  84  C.  C.  A.  93,  judgment  af- 
firmed. Great  Northern  R.  Co.  v.  United 
States,  208  U.  S.  452,  52  L.  Ed.  567,  28  S. 
Ct.   313. 

98-3.  Implied  repeal. — The  rule  that  a 
later  act  covering  the  whole  subject  of  a 
former  act  and  embracing  new  provisions 
operates  bv  imolication  to  repeal  the 
prior  act  is  subject  to  the  qualification 
that  where  the  later  act  expresses  the  ex- 
tent to  which  it  is  intended  to  repeal 
prior  laws,  as  by  a  clause  repealing  all 
laws   and  parts   of  laws   in   conflict   there- 


1127 


99-105 


STATUTES. 


Vol.  XL 


a  statute  by  implication  it  is  insufficient  to  show  merely  that  a  later  statute 
making  no  mention  of  prior  one  employs  language  broad  enough  to  cover  some 
part  or  all  of  it.  but  it  must  appear  that  the  two  statutes  can  not  stand  together, 
reasonable  purpose  and  operation  being  accorded  to  each.'*^ 

11/^.  Of  Code  or  Revised  Statute. — Subsequent  legislation  upon  a  gen- 
eral subject  covered  by  a  code  or  systematic  collection  of  general  rules  deal- 
ing with  such  subject  in  a  comprehensive  way  carries  with  it  an  implication 
that  the  general  rules  are  not  superseded,  but  are  to  be  applied  in  its  enforce- 
ment, save  as  the  contrary  clearly  appears. -^^ 

L.  Effect  of  Repeal — 1.  Upon  Repealed  Act — a.  In  General. — See 
note  39. 

6.   Upon  Pending  Suits. — See  note  63. 


with,  it  excludes  any  implication  of  a 
more  extended  repeal.  (1907).  Great 
Northern  Ry.  Co.  v.  United  States.  155 
F.  945,  84  C.  C.  A.  93,  judgment  affirmed. 
Great  Northern  R.  Co.  v.  Unitend  States, 
208  U.   S.  452,  52  L.   Ed.  567,  28  S.  Ct.  313. 

99-4a.  Great  Northern  R.  Co.  v.  United 
States,  84  C.  C.  A.  93,  155  Fed.  945.  judg- 
ment affirmed.  Great  Northern  R.  Co. 
V.  United  States,  208  U.  S.  452,  52  L.  Ed. 
567,   28    S.    Ct.   313. 

102-26a.  Of  code  or  revised  statute.^ 
Subsequent  legislation  upon  a  general 
subject  covered  by  a  code  or  systematic 
collection  of  general  rules  dealing  ^vith 
such  subject  in  a  comprehensive  waj-  car- 
ries with  it  an  implication  that  the  gen- 
eral rules  are  not  superseded,  but  are  to 
be  applied  in  its  enforcement,  save  as  the 
contrary  clearly  appears.  United  States 
f.  Barnes,  222  U.  S.  513,  56  L.  Ed.  291, 
32    S.    Ct.    117. 

103-39.  Upon  repealed  act. — There  are 
cases  which  go  so  far  as  to  say  that  the 
unqualified  repeal  of  a  law  as  efifectu- 
ally  destroys  rights  and  lia])ilities  de- 
pendent upon  it.  not  past  and  concluded, 
as  if  the  statute  had  never  existed.  Tt 
is,  however,  putting  it  strongh'  enough 
to  say.  that  an  unqualified  repeal  operates 
to  destroy  inchoate  rights,  as  a  release 
of  impprfect  obligations  and  as  a  remis- 
sion of  penalties  and  forfeitures  de- 
oendent  upon  the  destroyed  statute. 
United  States  v.  Reisinger,  128  U.  S.  398, 
32  L.  Ed.  480,  9  _S.  Ct.  99.  There  has 
been  a  marked  legislative  trend  in  the  di- 
rection of  escaping  from  the  serious  con- 
senuence  sometimes  incident  to  this  com- 
mon-law rule  of  construction,  indicated 
by  general  statutes  saving  liabilities, 
penalties  and  forfeitures  incurred  un- 
der repealed  statutes.  Such  a  general 
statute  was  passed  by  congress  on  Feb- 
ruarv  25,  1871,  ch.  71.  ifi  Stat.  431,  the 
fourth  section  of  whirh  was  carried  into 
the  revision  of  1878  Pud  is  now  in  force 
as  §  13.  Rev.  Stat.  Hertz  v.  Woodman, 
?18  U.  S.  205,  216,  54  L.  Ed.  1001,  30  S. 
Ct     fi21. 

105-63.     Upon    pending    suits. — The    ex- 


ception from  the  operation  of  the  pro- 
vision repealing  conflicting  laws,  which 
is  made  by  the  Hepburn  Act  (Act  June 
29,  1906,  c.  3591,  §  10,-34  Stat.  584  fU.  S. 
Comp.  St.  Supp.  1907,  p.  892]),  in  favor 
of  causes  pending  in  the  federal  courts, 
which  "shall  be  prosecuted  to  conclusion 
in  the  manner  heretofore  provided  by 
law,"  was  addressed  solely  to  the  pro- 
cedure to  be  followed  in  pending  cases, 
and  such  section,  therefore,  does  not 
supeisede  the  general  7)rovision  of  Rev. 
St.  U.  S.,  §  13  [U.  S.  Comp.  St.  1901,  p. 
6],  saving  existing  forfeitures,  penalties, 
or  liabilities  from  repeal,  so  as  to  pre- 
vent future  criminal  prosecutions  for  of- 
fenses against  the  Elkins  Act  (Act  Feb. 
19,  1903,  c.  708,  32  Stat.  847  [U.  S.  Comp. 
St.  Supp.  1907,  p.  880]),  committed  prior 
to  the  adoption  of  the  later  statute. 
Judgment  (C.  C.  A.  1907),  155  F.  945,  84 
C.  C.  A.  93,  affirmed.  Great  Northern  R. 
Co.  7'.  United  States,  208  U.  S.  452,  52  L. 
Ed.    567,    28    S.    Ct.    313. 

Efifect  must  be  given,  in  construing  a 
repealing  '  act,  to  the  general  saving 
clause  in  Rev.  St.  U.  S.,  §  13  [U.  S. 
Comp.  St.  1901,  p.  6],  prescribing  the  ef- 
fect of  repealing  acts  on  existing  penal- 
ties, forfeitures,  and  liabilities,  unless, 
either  by  express  declaration  or  neces- 
sary implication  arising  from  the  terms 
of  the  repealing  law  as  a  whole,  it  re- 
sults that  the  legislative  mind  will  be  set 
at  naught  by  giving  effect  to  such  saving 
clause.  Judgment  (C.  C.  A.  1907),  155 
F.  945,  84  C.  C.  A.  93,  affirmed.  Great 
Northern  R.  Co.  v.  United  States,  208 
U.    S.   452,   52   L.   Ed.   567,  28    S.    Ct._  313. 

As  applied  to  subsequent  repealing  acts 
which  do  not  express!}^  or  by  necessary 
implication  contravene  its  provisions. 
Rev.  St.,  §  13  [U.  S.  Comp.  St.  1901,  p. 
6],  prescribing  the  efifect  of  a  repealing 
act  on  existing  forfeitures  and  liabilities, 
is  obligatory  on  the  courts,  but  beyond 
this  is  without  effect,  and  not  obligatory 
on  any  one.  (1907),  Great  Northern  Ry. 
Co.  V.  United  States,  155  F.  945,  84  C.  C. 
A.  93,  iudgment  affirmed.  Great  North- 
ern R.  Co.  V.  United  States.  208  U.  S.  452, 
52  L.   Ed.  567,  28   S.   Ct.  313. 


1128 


Vol.  XI. 


STATUTES. 


108-122 


XVI.   Construction. 

B.     Distinguished  from  Interpretation. — See  note  96. 

G.  Manner  of  Construction — 2.  According  to  Intextiox — a.  In  Gen- 
eral.— See  note  39. 

5.    CoxsTRuED  BY  IMPLICATION — a.    In  General. — See  note  55. 

I.  General  Rules  of  Construction — 2.  Construed  to  Effectuate  Legis- 
lative Intent. — See  note  74. 

3.  Construed  as  a  Whole. — See  notes  76,  79,  86.     . 

4.  Construed  with  Reference  to  Statutes  in  Pari  Materia. — See 
note  93. 


108-96.  Distinguished  from  interpreta- 
tion.— It  may  not  be  doubted  that  in 
common  usage  interpretation  and  con- 
struction are  usually  understood  as  bav- 
ins: tlie  same  significance.  United  States 
V.  Keitel,  211  U.  S.  370,  386,  53  L.  Ed. 
230,    29    S.    Ct.    123. 

Interpretation  as  well  as  construction 
of  the  statute,  conceding  an  abstract  dis- 
tinction between  these  two  terms,  is 
comprehended  by  the  provision  of  the 
Act  of  March  2,  1907,  authorizing;  a  writ 
of  error  on  behalf  of  the  government 
from  the  federal  supreme  co'Jit  to  review 
a  judgment  of  a  district  or  circuit  court, 
quashing  an  indictment,  when  based  upon 
the  construction  of  the  statute  upon 
which  tiie  indictment  is  founded.  United 
States  V.  Keitel.  211  U.  S.  370,  53  L.  Ed. 
230,  29  S.  Ct.  123. 

114-39.  According  to  intention. — Great 
Northern  R.  Co.  r.  United  States,  208  U. 
S.   452,  52  L.   Ed.  567,  28   S.   Ct.  313. 

116-55.  Construed  by  implication. — 
Hertz  V.  Woodman,  218  U.  S.  205,  54  L. 
Ed.    1001,    30    S.    Ct.    621. 

The  intent  of  the  legislature  constitutes 
the  law,  and  may  be  as  effectually  mani- 
fested by  what  is  necessarily'  implied  as 
by  what  is  expressed,  and  where  there 
are  conflicting  manifestations  of  the  leg- 
islative will,  the  last  is  controlling. 
(1907),  Great  Northern  Ry.  Co.  v.  United 
States,  155  F.  945.  84  C.  C.  A.  93,  judg- 
ment affirmed.  Great  Northern  R.  Co.  ?•. 
United  States,  208  U.  S.  452,  52  L.  Ed. 
567.  28   S.   Ct.   313. 

118-74.  Construed  to  effectuate  legis- 
lative intent. — Great  Northern  R.  Co.  v. 
United  States,  208  U.  S.  452,  52  L.  Ed. 
567,  28  S.  Ct.  313.  See  ante,  "Upon 
Pendinsr   Suits,"   XI.    L,   6. 

119-76.  Construed  as  a  whole. — The 
Employers"  [Liability  Cases.  207  U.  S. 
463.   52   L.   Ed.  297,  28  S.   Ct.   141. 

'Tt  is  elementary  that  all  the  words  of 
the  statute  must  be  considered  in  de- 
termining its  "meaning-."  Parish  f.  Mac- 
VeP'^h.  214  U.  S.  124,  135,  53  L.  Ed.  936, 
29    S.    Ct.    556. 

120-79.  United  States  v-  Keitel,  211  U. 
S.   .■!~0.   393,   .-3   L.   Ed.   230,  29   S.   Ct.   123. 

Ejusdem  generis. — The  addition  in  the 
Act  of  Eebruarv  20.  1907,  of  the  words, 
"or    for    any     otlier      immoral      purpose," 


after  the  word  "prostitution,"'  must  have 
been  made  for  some  practical  object. 
Those  added  words  show  beyond  ques- 
tion that  congress  had  in  view  the  pro- 
tection of  society  against  another  class 
of  alien  women  other  than  those  who 
might  be  brought  here  merely  for  pur- 
poses of  "prostitution."  In  forbidding 
the  importation  of  alien  women  "for  any 
otlier  immoral  purpose,"  congress  evi- 
dently thought  that  there  were  purposes 
in  connection  with  the  importations  of 
alien  women  which,  as  in  the  case  of 
importations  for  prostitution,  were  to  'oe 
deemed  iminoral.  It  may  be  admitted 
that  in  accordance  with  the  familiar  rule 
of  ejusdem  generis,  the  immoral  purpose 
referred  to  by  the  words  "any  other  im- 
moral purpose,""  must  be  one  of  the  same 
general  class  or  kind  as  the  particular 
purpose  of  "prostitution""  specified  in  the 
same  clause  of  the  statute.  2  Lewis' 
Sunderland  Stat.  Const.,  §  423,  and  au- 
thorities cited.  But  that  rule  can  not 
avail  the  accused  in  this  case;  for,  the 
immoral  purpose  charged  in  the  indict- 
ment is  of  the  same  general  class  or  kind 
as  ihe  one.  that  controls  in  the  importa- 
tion of  an  alien  woman  for  the  purpose 
strictly  of  prostitution.  L'nited  States  v. 
Bitty,  208  U.  S.  393,  401,  52  L.  Ed.  543, 
28    S.    Ct.   396. 

121-86.  Restraining  wider  provisions. 
— "In  view  of  tine  ambiguity  and  con- 
fusion in  the  statute  we  think  the  duty 
of  interpreting  should  not  be  so  exerted 
as  to  cause  one  portion  of  the  statute 
which,  as  conceded  by  the  government, 
is  radical  and  far  reaching  in  its  opera- 
tion if  literally  construed,  to  extend  and 
enlarge  another  portion  of  the  statute 
which  seems  reasnnal^le  and  free  from 
doubt  if  also  literallv  interpreted.  Rather 
it  seems  to  us  our  dut}^  is  to  restrain  the 
wider,  and  we  think,  doubtful  prohibi- 
tions so  as  to  make  them  accord  with  the 
narrow  and  more  reasonable  provisions, 
and  thus  harmonize  the  statute."  .At- 
torney General  z\  Delaware,  etc.,  Co.,  213 
IT.  S.  366,  412,  53  L.  Ed.  835,  29  S.  Ct. 
52~. 

122-93.  Construed  with  reference  to 
statutes  in  pari  materia. — Great  Northern 
R.  Co.  r.  United  States,  208  U.  S.  452,  52 
L     Ed.   567.   28    S.    Ct.   313;    United    States 


1129 


124-138 


STATUTES. 


\'ol.  XL 


5.  Construed  with  RefkrExXCE  to  Primary  Meaning  of  Words. — See 
note  25. 

6.  Construed  as  Prospective  or  Retrospective. — See  note  Z5. 

7 .  Construed  Reasonably. — See  note  44. 

12.  Later  Provision  Prevails  over  Prior. — See  note  53. 

13.  Rule  oe  ExprEssio  Unius. — See  note  60.  The  maxim  invoked  expresses 
a  rule  of  construction,  not  of  substantive  law\  and  serves  only  as  an  aid  in 
discovering  the  legislative  intent  when  that  is  not  otherwise  manifest.  In  such 
instances  it  is  of  deciding  importance;  in  others,  not.*'-'* 

J.  Aids  to  Construction — 2.  Intrinsic  Aids — f.  Prohibitions  and  Penal- 
ties.— The  scope  of  a  statute  is  not  necessarily  confined  to  the  clause  prescrib- 
ing a  penalty  for  doing  prohibited  acts.-^ 

3.  Extrinsic  Aids — a.  Legislative  Construction — (1)  In  General. — -See 
note  4. 

b.  Judicial  Construction. — Where  the  lower  federal  courts  to  which  con- 
gress has  committed  the  enforcement  of  a  statute  have  continuously  construed 
it  in  a  certain  way  and  rights  have  been  acquired  under  that  construction,  the 
supreme  court  should  not  overrule  it  in  the  absence  of  a  clear  necessity. ^^^ 


V.  Stever,  222  U.  S.  167,  5G  L.  Ed.  145,  32 
S.    Ct.    51. 

Subsequent  congressional  legislation 
maj^  be  considered  as  an  aid  to  the  in- 
terpretation of  prior  legislation  upon  the 
same  subject.  Tiger  v.  Western  Inv.  Co., 
221  U.  S.  286,  55  L.  Ed.  738,  31  S.  Ct.  578, 
reversing  judgment  (1908),  Western  Inv. 
Co.  V.   Tiger,   96   P.   602,   21   Okl.   630. 

124-25.  Construed  with  reference  to 
primary  meaning  of  words. — Louisville, 
etc.,  R.  Co.  V.  Mottley,  210  U.  S.  467,  55 
L.    Ed.    297,    31    S.    Ct.    265. 

127-35.  Construed  as  prospective  or 
retrospective. — Davidson  Bros.  Marble 
Co.  V.  United  States,  213  U.  S.  10,  53  L 
Ed.  675,  29  S.  Ct.  324,  following  United 
States  Eidelity,  etc.,  Co.  v.  United  States. 
209  U.  S.  306,  52  L.  Ed.  804,  28  S.  Ct.  537, 
followed  to  effect  that  the  Act  of  Feb- 
ruary 24,  1905,  ainending  the  Act  of  Au- 
gust  13,   1894,   is   prospective. 

"The  presumption  is  very  strong  that 
a  statute  was  not  meant  to  act  retrospec- 
tively, and  it  ought  never  to  receive  such 
a  construction  if  it  is  susceptible  of  any 
other.  It  ought  not  to  receive  such  a 
construction  unless  the  words  used  are 
so  clear,  strong  and  imperative  that  no 
other  meaning  can  be  annexed  to  them 
or  unless  the  intention  of  the  legislature 
can  not  be  otherwise  satisfied."  United 
States  Fidelity,  etc.,  Co.  v.  United  States, 
209  U.  S.  306,  314,  52  L.  Ed.  804,  28  S. 
Ct.   537. 

128-44.  Construed  reasonably. — Inter- 
national Textbook  Co.  v.  Pigg.  217  U.  S. 
91,  54  L.  Ed.  678,  30  S.  Ct.  481;  Standard 
Oil  Co.  V.  United  States,  221  U.  S.  1,  55 
L.  Ed.  619,  31  S.  Ct.  502.  See  ante, 
MONOPOLIES  .\XD  CORPORATE 
TRUSTS.  D.  874. 

130-53.  Later  provision  prevails  over 
prior.— Ilertz  v.  Woodman,  218  U.  S.  205, 
54  L  Ed  1001,  30  S.  Ct.  621;  Great  North- 
ern R.  Co.  V.  United  States,  208  U.  S.  452, 
52  L.  Ed.  567,  28  S.  Ct.  313. 


130-60.  Rule  of  expressio  unius. — Great 
Northern  R.  Co.  v.  United  States,  208  U. 
S.   452,   467,   52  L.   Ed.   567,  28   S.   Ct.  313. 

131-62a.  The  express  extension  of  the 
provisions  of  U.  S.  Rev.  Stat.,  §§  3232-3241, 
and  3243,  U.  S.  Comp.  Stat.  1901,  pp. 
2091,  2095,  which  deal  with  special 
taxes,  to  the  special  tax  on  oleomar- 
garine, made  by  §  3  of  the  Act  of  August 
2,  1886  (24  Stat,  at  L.  209,  chap.  840,  U. 
S.  Comp.  Stat.  1901,  p.  2228),  imposing 
such  tax,  and  not  purporting  to  be  com- 
plete in  itself  is  not  an  implied  exclusion 
of  the  general  provisions  of  §  3177  (U. 
S.  Comp.  Stat.  1901,  p.  2069),  for  the  en- 
try by  revenue  officers  of  any  building  or 
place  where  any  articles  or  objects  sub- 
ject to  tax  are  made,  produced,  or  kept, 
for  the  purpose  of  examining  such  ar- 
ticles or  objects.  United  States  v. 
Barnes,  222  U.  S.  513,  56  L-  Ed.  291,  32 
S.    Ct.    117. 

135-2a.  Prohibitions  and  penalties. — 
Waskey  v.  Hammer,  223  U.  S.  85,  56  L. 
Ed.  359,  32  S.  Ct.  J  87,  construing  §  452, 
Rev.  Stat.,  with  regard  to  mining  loca- 
tions. 

135-4.  Legislative  construction. — "While 
the  mere  declaration  contained  in  a  stat- 
ute that  it  shall  be  regarded  as  a  tax  of 
a  particular  character  does  not  make  it 
such  if  it  is  apparent  that  it  can  not  be 
so  designated  consistently  with  the  mean- 
ing and  effect  of  the  act,  nevertheless  the 
declaration  of  the  lawmaking  power  is 
entitled  to  much  weight,  and  in  this  stat- 
ute the  intention  is  expressly  declared  to 
impose  a  special  excise  taS  with  respect 
to  the  carrying  on  or  doing  business  by 
such  corporation,  joint  stock  company  or 
association,  or  insurance  company." 
Flint  V.  Stone  Tracy  Co.,  220  U.  S.  107, 
145,  55  L.  Ed.  389,  31  S.  Ct.  342;  Tiger  v. 
Western  Inv.  Co.,  221  U.  S.  286,  55  L. 
Ed.   738,   31    S.    Ct.   578. 

138-26a.     Judicial    construction. — Henry 


1130 


Vol.  XI. 


STATU  TBS. 


138-146 


c.      Co}itcmpuraneous    and    Practical    Construction — (  1)      In    General. — See 
note  27 . 

(3)    By  Whom  Constrned. — See  note  45. 

(J.    Legislative  History. — See  notes  50,  SI,  iS. 

e.  Existing  Lazv  and  History. — See  note  58. 

f.  Reason.  Purpose  and  Object. — See  notes  60,  61,  62. 


T.  Dick  Co.,  224  U.  S.  1,  50  L.  Ed.  645,  32 
S.  Ct.  364.  See,  also,  ante,  COURTS,  p. 
398. 

138-27.  Contemporaneous  and  practical 
construction. — Where  the  meaning  of  a 
statute  is  doubtful,  great  weight  is  given 
to  the  construction  placed  on  it  by  the 
department  charged  with  its  execution. 
United  States  z'.  Cerecedo  Hermanos  Y 
Compania,  209  U.  S.  337,  52  L.  Ed.  821, 
28   S.   Ct.   532. 

The  rule  which  gives  strength  to  the 
construction  of  the  officers  who  are  di- 
rected to  execute  the  law  and  who,  it 
has  been  said,  may  have  written  or  sug- 
gested it,  is  given  an  added  force  from 
one  of  the  provisions  of  the  act  of  con- 
gress directing  the  secretary  of  the  in- 
terior to  make  the  necessary  regulations 
to  carry  out  the  purposes  of  its  enact- 
ment. Jacobs  V.  Prichard,  223  U.  S.  200, 
214,    56    L.    Ed.    405,    32    S.    Ct.    289. 

142-45.  By  whom  construed. — The  con- 
struction given  by  the  department 
charged  with  the  execution  of  the  tariff 
acts  is  entitled  to  great  weight.  Komada 
&  Co.  r.  United  States,  215  U.  S.  392,  396, 
54  L.  Ed.  249,  30  S.  Ct.  136;  United  States 
V.  Cerecedo  Hermanos  Y  Compania,  209 
U.  S.  337,  339,  52  L.  Ed.  821,  28  S.  Ct. 
532. 

Land  department. — -Waskey  z'.  Ham- 
mer, 223  U.  S.  85,  56  L.  Ed.  359,  32  S.  Ct. 
187. 

The  federal  courts  will  accept  as  con- 
trolling the  decision  of  the  land  depart- 
ment that  the  use  of  the  words  "as- 
signors'' and  "assigns"  in  the  amend- 
ment of  Act  March  3,  1891,  c.  561,  §  2, 
26  Stat.  1096  (TJ.  S.  Comp.  St.  1901,  p. 
1549),  to  Desert  Land  Act  March  3,  1877, 
c.  107,  19  Stat.  377  (U.  S.  Comp.  St.  1901. 
p.  1548),  evidenced  the  intention  of  con- 
gress to  remove  the  restrictions  of  the 
earlier  act  upon  the  assignment  of  a  des- 
ert land  entry,  and  was  not  merely  in 
recognition  of  the  right  that  every  en- 
tryman  has  under  the  public  land  laws 
of  the  United  States  to  make  an  assign- 
ment after  he  has  acquired  the  equitable 
title  to  the  land  embraced  within  his 
entry.  United  States  v.  Hammers,  221 
V.    S.    220.    55    L.    Ed.   710.   31    S.    Ct.    593. 

The  federal  supreme  court  will  follow 
the  continuous  construction  of  the  land 
department  that  the  special  provision  for 
Louisiana  in  the  swamp  Land  Grant  Act 
of  March  2,  1849  (9  Stat.  352,  c.  87),  that 
title  shall  vest  in  the  state  on  approval 
■of  a  list  of  ^ands  l)v  th-'^  secretary  of  the 


interior,  was  not  affected  by  the  general 
clause  of  llie  Act  of  September  28,  1350 
(9  Stat.  519,  c.  84),  granting  Swamp  lands 
to  Arkansas,  to  vest  only  upon  the  issu- 
ance of  a  patent,  that  the  provisions  of 
this  act  be  extended  to  and  their  benefits 
be  conferred  upon  each  of  the  other 
states  in  which  such  swainp  and  over- 
flowed lands  may  be  situated.  Louisiana 
z:-.  Garfield,  211  U.  S.  70,  53  L.  Ed.  92,  29 
S.  Ct.  31.  See  ante,  PUBLIC  LANDS, 
p.  1012. 

143-50.  Legislative  history. — Parish  v. 
MacVeagh,  214  U.  S.  124,  53  L.  Ed.  936, 
29    S.    Ct.   55G. 

143-52.  The  words  "in  which  it  is  in- 
terested directly  or  indirectly"  in  the 
commodities  clause  of  the  Hepburn  Act 
of  June  29,  1906,  to  prevent  discrimina- 
tion by  carriers  of  interstate  commerce, 
are  to  be  construed  with  reference  to  the 
legislative  history  of  the  act,  and  the 
fact  that  an  amendment  declaring  that 
the  act  was  intended  to  embrace  the  pro- 
hibition of  carrying  a  commodity  manu- 
factured, mined,  produced  or  owned  by 
a  corporation  in  which  a  railroad  com- 
pany was  interested  as  a  stockholder, 
was  rejected,  therefore  the  clause  is  to 
be  construed  as  not  extending  to  com- 
modities produced  by  corporations  in 
which  the  only  interest  of  the  carrier 
was  that  of  a  stockholder.  Attorney 
General  v.  Delaware,  etc.,  Co.,  213  U.  S. 
366.  53  L.  Ed.  835,  29  S.  Ct.  527.  See 
nnte.  INTER ST.-\TE  AND  FOREIGN 
COMMERCE,  p.  689. 

143-55.  The  rule  that  congressional  de- 
bates may  not  be  used  as  a  means  to  an 
interpretation  of  an  act  of  congress  is 
not  violated  by  resorting  to  them  to  as- 
certain the  historj'  of  the  period  when 
the  statute  was  adopted.  Standard  Oil 
Co.  T.  United  States,  221  U.  S.  1.  55  L. 
Ed.  619,  31  S.  Ct.  502,  affirming  judgment 
(C  C.  1909)  United  States  t-.  Standard 
Oil   Co.    of   New   Jersey,    173    F.   177. 

145-58.  Existing  law  and  history. — 
I-oii;sville.  etc..  R.  Co.  r.  Mottley,  219  U. 
S.   467,   55   L.    Ed.   297,   31    S.    Ct.   265. 

146-60.  Reason,  purpose  and  object. — 
Shevlin-Carpenter  Co.  ;■.  Minnesota,  218 
U.  S.  57.  54  L.  Ed.  930,  30  S.  Ct.  663; 
Waskey  t'.  Hammer.  223  U.  S.  85,  56  L. 
Ed.   359,   32    S.    Ct.    187. 

146-61.  Tiger  ;-.  Western  Inv.  Co.,  221 
U.  S.  286.  55  L.  Ed.  738.  31  S.  Ct.  578; 
Jacobs  V.  Prichard,  223  U.  S.  200,  56  L. 
Ed     405.    32    S.    Ct.    289. 

146-62.      .\ttornev      General      r.       Dela- 


1131 


147-155 


STATUTES. 


Vol.  XL 


g.    Governmental  Policy. — See  note  64. 

h.    Subject  Matter. — See  note  66. 

K.    Consequences  to  Be  Avoided — 1.    In  General. — See  note  77. 

2.  Invalidity. — See  note  84. 

3.  Unconstitutionality. — See  note  85. 

4.  Extraterritoriality. — See  note  %7 . 

L.     Construction   of  Particular   Statutes — 2.    Re-Enacted   Statutes. — 
See  note  21. 


ware,  etc.,  Co.,  213  U.  S.  366,  405,  53  L. 
Ed.   835,   29    S.    Ct.   527. 

But  the  statute  may  be  given  a  broader 
efiFect  than  the  evil  giving  it  birth.  Weems 
V.  United  States,, 217  U.  S.  349.  54  L.  Ed. 
793,   54    S.    Ct.    544. 

147-64.  Governmental  policy. — Standard 
Oil  Co.  V.  United  States,  221  U.  S.  1,  55 
L.    Ed.    619,    31    S.   Ct.   502. _ 

Acts  in  regard  to  Indians. — Tiger  v. 
Western  Inv.  Co.,  221  U.  S.  286,  55  L. 
Ed.  738,  31  S.  Ct.  578.  See  ante,  IN- 
DIANS, p.  641. 

148-66.  Subject  matter. — Waskey  v. 
Hammer,  223  U.  S.  85,  56  L.  Ed.  359,  32 
S.    Ct.    187. 

149-77.  Consequences  to  be  avoided. — 
"The  government,  in  argument,  suggests 
that  the  radical  result  of  the  statute  may 
be  assuaged,  without  violating  its  spirit, 
l,>y  limiting  its  prohibitions  so  as  to  cause 
ihem  to  apply  only  so  long  as  the  com- 
modities to  which  it  applies  are  in  the 
hands  of  a  carrier  or  its  first  vendee.  But 
no  such  limitation  is  expressed  in  the 
statute,  and  to  engraft  it  would  be  an 
act  of  pure  judicial  legislation.  Besides, 
to  do  so  would  be  repugnant  to  the  as- 
serted spirit  and  purpose  of  the  statute 
which  lies  at  the  foundation  of  the  con- 
struction upon  which  the  government  re- 
lies." Attorney  General  v.  Delaware, 
etc..  Co.,  213  U.  S.  366,  405,  53  L.  Ed.  835, 
29   S.   Ct.  527. 

150-84.  Invalidity.— Great  Northern  R. 
Co.  V.  United  States,  208  U.  S.  452,  52 
L.  Ed.  567,  28  S.  Ct.  313.  See  ante.  "Upon 
Pending  Suits,"  XI,  L,  6. 

"But  this  would  require  us  to  write 
into  the  statute  words  of  limitation  and 
restriction  not  found  in  it."  The  Em- 
ployers' Liability  Cases,  207  U.  S.  463. 
500,    52    L.    Ed.   297,   28    S.    Cl.    141. 

"Of  course,  if  it  can  be  lawfully  done, 
our  duty  is  to  construe  the  statute  so  as 
to  render  it  constitutional.  But  this  does 
not  imply,  if  the  text  of  an  act  is  unam- 
biguous, that  it  may  be  rewritten  to  ac- 
complish that  purpose."  The  Employers' 
Liabilitv  Cases.  207  U.  S.  463,  501.  52  L. 
Ed.    297,    28    S.    Ct.    141. 

150-85.  Unconstitutionality. — New  York, 
etc..  R.  Co.  V.  United  States,  212  U.  S.  481, 
53  L.  Ed.  613,  29  S.  Ct.  304;  Attorney 
General  v.  Delaware,  etc.,  Co.,  213  U.  S. 
366,  407,  53  L.  Ed.  835,  29  S.  Ct.  527;  The 
Abby  Dodge,  223  U.  S.  166,  56  L.  Ed.  390, 
32  S.  Ct.  310. 


"Where  a  statute  is  susceptible  of  two 
constructions,  by  one  of  which  grave  and 
doubtful  constitutional  questions  arise 
and  by  the  other  of  which  such  questions 
are  avoided,  our  duty  is  to  adopt  the  lat- 
ter." Attorney  General  v.  Delaware,  etc., 
Co.,  213  U.  S.  366,  408,  53  L.  Ed.  835,  2& 
S.  Ct.  527;  Harriman  v.  Interstate  Com- 
merce Comm.,  211  U.  S.  407,  53  L.  Ed. 
253,  29  vS.  Ct.  115. 

"It  is  elementary  when  the  constitu- 
tionality of,  a  statute  is  assailed,  if  the 
statute  be  reasonably  susceptible  of  two 
interpretations,  by  one  of  which  it  would 
be  unconstitutional  and  by  the  other 
valid,  it  is  our  plain  duty  to  adopt  that 
construction  which  will  save  the  statute 
from  constitutional  infirmity.''  Attorney 
General  i'.  Delaware,  etc.,  Co..  213  U.  S. 
366.  407,  53   L.   Ed.  835,  29   S.   Ct.  527. 

150-87.  Extraterritoriality. — American 
Banana  Co.  v.  United  Eruit  Co..  213  U.  S. 
347,  53  L.  Ed.  826,  29  S.  Ct.  511.  See  ante,. 
MONOPOLIES  AND  CORPORATE 
TRUSTS,  p.  874. 

A  statute  is  to  l)e  construed  as  intended 
to  be  confined  in  its  operation  and  effect 
to  the  territorial  limits  over  v.'hich  the 
lawmaker  has  general  and  legitimate 
power.  American  Banana  Co.  v.  United 
Fruit  Co.,  213  U.  S.  347,  357,  53  L.  Ed.  826, 
29  S.  Ct.  511. 

155-21.  Construction  of  particular  stat- 
utes.— The  federal  courts  will  follow  the 
construction  given  by  the  courts  of  the 
government  of  Hawaii  to  a  statute  first 
enacted  on  May  24,  1866,  legitimating 
children  born  out  of  wedlock  upon  the 
marriage  of  their  parents,  as  not'  applica- 
l>!e  to  the  issue  of  an  aduh-.Tous  relation. 
Kealoha  v.  Castle.  210  U.  S.  149,  52  L.  Kd. 
998.  28  S.  Ct.  684;  Great  Northern  R.  Co. 
T.  United  States,  208  U.  S.  452,  468,  52  L. 
Ed.  567,  28  S.  Ct.  313. 

As  the  construction  affixed  to  a  statute 
many  years  before  the  Hawiian  Islands 
were  acquired  is  final,  in  effect  that  con- 
struction had  entered  into  the  statute  at 
the  time  of  acquisition  and  must  be  con- 
sidered as  if  written  in  the  law.  Kealoha 
V.  Castle,  210  U.  S.  149,  154.  52  L.  Ed.  998, 
28  S.  Ct.  684. 

The  re-enactment  by  congress,  without 
change,  of  a  statute  which  has  previously 
received  a  long-continued  executive  con- 
struction, is  an  adoption  by  congress  of 
such   construction.     United   States  v.   Cer- 


1132 


A'ol.  XI. 


STATUTES. 


157-171 


3.    Revised  Statutes  and  Codifications. — See  note  35. 

5.    Repealed  axd  Repealing  Statutes. — See  note  51. 

The  act  of  congress  saving  liabilities  upon  the  repeal  of  a  statute  has 
been  upheld  by  the  federal  supreme  court  as  a  rule  of  construction  applicable, 
when  not  otherwise  provided,  as  a  general  saving  clause  to  be  read  and  construed 
as  a  part  of  all  subsequent  repealing  statutes,  in  order  to  give  etlect  to  the 
will  and  intent  of  congress.-^ ^^ 

11.    Pexal   Statutes. — See  note  61. 

15.  Affecting  Rights  of  Indi.\ns. — A  statute  relating  to  the  sale  of  Indian 
lajid  is  to  be  construed  with  reference  to  the  habits  of  Indian  life.'^'-"' 

24.    Revenue  Statutes — c.    Construed  Liberally. — See  note  4. 

28.    Other  Particular  Statutes. — See  note   13. 

M.  Construction  of  Particular  Words  and  Phrases — 2.  General  Terms 
— b.  Quaiify'uig  General  Terjiis — (2)  By  Special  Terms — (b)  Ejnsdem  Gen- 
eris Rule — aa.    In   General. — See  note  30. 


ecedo  Hermanos  Y  Compania.  209  U.  S. 
337.  52   L.   Ed.  S2I,  2S   S.   Ct.   532. 

Words  having  received  a  certain  con- 
struction under  a  prior  tariff  act  must  be 
given  the  same  meaning  when  used  in 
subsequent  acts,  on  the  theory  that  in  us- 
ing the  phrase  in  the  later  statute  con- 
gress adopted  the  construction  already 
given  by  the  federal  supreme  court.  La- 
timer c'.  United  States,  223  U.  S.  501,  56 
L.  Ed.  526,  32  S.  Ct.  242,  citing  United 
States  V.  Baruch,  223  U.  S.  191,  56  h.  Ed 
.399,  32  S.  Ct.  306. 

157-35.  Revised  statutes  and  codifica- 
tion s. — The  change  of  arrangement, 
which  places  portions  of  what  was  origi- 
nally a  single  section  in  two  separate 
sections  of  the  Revised  Statutes,  can  not 
be  regarded  as  altering  the  scope  and  pur- 
pose of  the  enactment.  For  it  will  not  be 
inferred  that  congress,  in  revising  and 
consolidating  the  laws,  intended  to  change 
their  effect  unless  such  intention  is  clearly 
expressed.  Anderson  v.  Pacific  Coast 
Steamship  Co.,  225  U.  S.  187,  199,  56  L. 
Ed.   1047,   32    S.   Ct.   626. 

158-51.  Repealed  and  repealing  stat- 
utes.— United  States  :■.  Reisinger,  128  U. 
S.  398,  32  L.  Ed.  480,  9  S.  Ct.  99;  Great 
Northern  R.  Co.  v.  United  States,  208  U. 
S.  452,  52  L.  Ed.  567,  28  S.  Ct.  313;  Hertz 
V.  Woodman,  218  U.  S.  205.  217,  54  L.  Ed. 
1001,  30  S.  Ct.  621. 

158-51a.  Act  saving  liabilities  on  re- 
peal of  statutes. — Hertz  v.  Woodman,  218 
U.  S.  205,  217,  54  L.  Ed.  1001,  30  S.  Ct.  621. 

160-61.  Penal  statutes. — United  States 
r.  Bitty.  208  U.  S.  393.  52  L.  Ed.  543.  28  S. 
Ct.  396". 

The  rule  of  strict  construction  of  crim- 
inal statutes  does  not  require  that  the 
narrowest  technical  meaning  be  given  to 
the  words  employed  in  disregard  of  their 
context,  and  in  frustration  of  the  obvious 
legislative  intent.  Judgment  (D.  C.  1908), 
162  F.  687,  reversed.  United  States  v. 
Corbett,  215  U.  S.  233,  54  L.  Ed.  173,  30  S. 
Ct.   81. 


164-79a.  Affecting  rights  of  Indians. — 
Jacobs  V.  Prichard,  223  U.  S.  200,  56  L. 
Ed.  405,  32  S.  Ct.  289.  See  ante,  INDI- 
AXS,  p.  641. 

168-4.  Revenue  statutes. — A  statute 
for  the  raising  of  revenue,  even  when  ac- 
companied by  provisions  of  a  very  high 
penal  nature,  is  still  to  be  construed  as  a 
whole  and  in  a  fair  and  reasonable  man- 
ner and  not  strictly  in  favor  of  the  de- 
fendant. United  States  v.  Graf  Distilh'ng 
Co.,  208  U.  S.  198,  52  L.  Ed.  452,  28  S.  Ct. 
264.  Following  United  States  v.  Stowell, 
133  U.  S.  1,  33  L.  Ed.  555,  10  S.  Ct.  244. 
See  ante,  REVENUE  LAWS,  p.  1071. 

169-13.  Patent  laws.— See  ante,  P\T- 
EXTS.  p.  93(5. 

171-30.  Ejusdem  generis  rule. — The 
words  referred  to  follow  particular  words 
descriptive  of  schemes  of  gain  dependent 
upon  chance,  and  are  followed  by  further 
particular  words  relating  to  the  same 
kind  of  lottery  schemes.  In  such  circum- 
stances, unless  there  is  a  clear  manifesta- 
tion to  the  contrary,  general  words,  not 
specific  Hmited,  should  be  construed  as 
appHcable.to  cases  or  matters  of  like  kind 
with  those  described  by  the  particular 
words.  The  words  "or  concerning 
schemes  devised  for  the  purpose  of  ob- 
taining money  or  property  by  false  pre- 
tenses." in  §  3894  of  the  Revised  Statutes 
relating-  to  lotteries  are  to  be  limited  to 
schemes  having  a  similitude  to  the  lottery 
and  other  like  schemes  particularly  de- 
scribed by  the  particular  words  of  the 
section.  United  States  v.  Stever,  222  U. 
S.   167.  174,  50  L.   Ed.  145,  32  S.  Ct.  51. 

An  employee  in  the  customs  service  of 
tlie  United  States  who  makes  and  returns 
false  weights  in  connection  with  an  entr}'- 
of  imported  merchandise  is  compre- 
hended by  the  words  "other  person''  in 
the  provisions  of  the  Customs  Adminis- 
tration Act  of  June  10,  1890  (26  Stat,  at 
L.  131-135.  chap.  407.  U.  S.  Comp.  Stat. 
1901,  pp.  1886-1895).  §  9,  for  the  forfeiture 
of  goods  or  their  value  where  "any 
owner,     importer,      consignee,     agent,     or 


1133 


175-180  STIPULATIOXS.  Xol.  XI. 

N,    Effect  of  Construction— 2.    As  Stare;  Decisis. — See  note  65. 
XVII.    Operation  and  Effect. 

J.  Prevails  over  Contract. — The  general  rule  of  law  is  that  an  act  done 
in  violation  of  a  statutory  prohibition  is  void  and  confers  no  right  upon  the 
wrongdoer,  but  this  rule  is  subject  to  the  qualification  that  when,  upon  a  sur- 
vey of  the  statute,  its  subject  matter  and  the  mischief  sought  to  be  prevented, 
it  appears  that  the  legislature  intended  otherwise,  efifect  must  be  given  to  that 
intent  ion.  ^*^'' 

K.     Territorial   Extent    of   Operation. — See   note   82. 

M.  As  to  Subsequent  Legislation. — See  ante.  "Restricted  bv  Prior  Legis- 
lature." IV.  C,  .3,  b. 

STAY  BOND.— See  ante,  Estoppel,  p.  553. 

STAY  LAW. — See  ante.  Limitation  of  Actions  and  Adverse  Posskssion, 
p.  828. 

STAY  OF.  PROCEEDINGS. —See  ante.  Bankruptcy,  p.   168;  post,  Supi<r- 

SliDEAS   AND   StAY   OF    PrOCFFDINGS. 

STEAM. — See  the  title  Stfam,  vol.   11.  p.   1"8,  and  references  there  given. 


STIPULATIONS. 

CROSS   REFERENCES. 

See  the  title  Stipulations,  vol.  11,  p.  179,  and  references  there  given. 

As  to  reversal  of  lower  court  on  construction  of  stipulation,  see  ante,  AppFal 
AND  Error,  p.  34.  As  to  review  of  facts  submitted  by  stipulation  in  lower 
court,  see  ante.  Appeal  and  Error,  p.  34.  As  to  stipulation  for  waiver  of 
jury  trial,  see  ante,  Jury.  p.  813. 

Construction  of  Stipulation. — While  under  the  laws  of  the  territory  of 
Arizona  the  parties  can,  by  a  stipulation,  supplant  the  pleadings  in  the  case,  the 
court  will  not  construe  a  stipulation  as  an  agreed  case,  having  that  effect, 
where  the  parties  subsequently  amended  their  pleadings,  but  the  stipulation 
will  be  treated  as  an  enumeration  of  the  facts  involved  in  the  case."^*^ 

other    person"    shall    make    an   entry    by  court     should     conform     thereto,     unless 

means    of   false    and    fraudulent    practices,  there    is  a    clear    reason  to    the    contrary, 

or  shall  be  guilty  of  any  unlawful  act   or  tienry  v.  Dick  Co.,  224  U.  S.  1,  56  L.  Ed. 

omission  whereby  the  United  States  is  de-  ('>4.5.  32  S.  Ct.  364. 

prived    of  the  lawful    duties     and  for    the  Because    a   statute    was    construed    in    a 

punishment  of  such  person  by  fine  or  im-  ^ivil   cause,   afifords   no   reason  for  saying- 

pnsonment    or    both.      United     States    v.  th^t  the  authoritative   construction  of  the 

Mescall,  215  U.   S.  26.  54  L.   Ed.  77,  30  S.  statute  is  not  to  be  applied  in   a  criminal 

^JJ^'/.^       A                  J     •  •         A         ■         ,'  case.     United   States  v.   Keitel,  211   U.   S. 

175-65      As   stare   decisis.— A   prior   de-  070,  392,  53  L.  Ed.  230,  29  S.  Ct.  123. 

cision  should  not  be  treated  as  authority,  •,,-«  o,v        t»         -i                       ^       ^      t%7- 

where  it  does  not  appear  that  any  ques-  ,    ^'^-^Of-     ^'^""^'l^^  °7«i-  ^°"J?1*;T^#^- 

tion  was   raised   concerning  the   construe-  ':-7  !;,  "=i"^,"^er.  223  U.  S.  85,  94.  06  L.  Ed. 

tion  of  the  statute  in  the  particular  now  "''''■  "'   "'          "'^'' 

controverted,  but  that  the  meaning  of  the  176-82.  Territorial  extent  of  opera- 
statute  was  taken  for  granted,  and  hence  tion.— The  Territory  of  New  Mexico  can 
the  mere  assumption  which  was  indulged  P^ss  no  law  having  force  and  effect  over 
in  when  deciding  the  case  should  not  now  persons  or  property  without  its  jurisdic- 
prevent  a  determination  of  the  signifi-  tion.  Atchison,  etc..  R.  Co.  z'.  Sowers,  213 
cance  of  the  language  of  the  statute.  U.  S.  55,  70,  53  L.  Ed.  695,  29  S.  Ct.  397. 
United  States  v.  Corbett,  315  U.  S.  ?33  See  ante,  INDICTMENTS.  INFORM.V 
239.  54  L.  Ed.  173.  30  S.  Ct.  81.  TIONS.  PRESENTMENTS  AND  COM- 

Where   the   decisions  of  the   lower  fed-  PLAINTS,  p.  652. 

era!  courts  construing  a  statute  have  be-  180-la.     Clason  <•.  Matko,  223  U.  S.  646, 

come    a    rule    of    property,    the    supreme  56  L.  Ed.  588,  32  S.  Ct.  392. 

1134 


Vol.  XI  STOCK  JA'D  STOCKHOLDERS.  18  0 

In  Regard  to  Evidence. — See  note  6. 

STOCK. — See  post,   Stock  and   Stockholders.     And  see  ante,   Capital — 
Capital  Stock,  p.  214. 


STOCK  AND  STOCKHOLDERS. 

II.  Definitions,  Nature  and  General  Consideration  of  Stock,  1136. 

A.  Definitions  and  Distinctions,   1136. 
E.  Certificate  of  Stock,  1136. 

VI.  Assignment,  Transfer,  Sale  and  Pledge,   1136. 

B.  Essentials  of  \'alid  Transfer,  1136. 

4.  Filing  Statement  with  Secretary  of  State,  1136. 
E.  Sale  of  Stock.  1137. 

3.  Effect  of  Fraud  or  Mistake,  1137. 

b.  Rescission,    1137. 
G.  Pledge  of  Stock,  1137. 

1.  What  Constitutes,  1137. 

6.  Purchase  on  Margin  Through  Stockbroker.  1138. 
I.  Purchase  by  Director,  1138. 

VIII.  Stockholders,  1138. 

B.  Stockholders'  Meeting  and  Formality  of  Action,  1138. 

C.  Stockholders"  Rights  and  Powers,  1138. 

4.  Control  of  Corporate  Affairs,  1138. 

c.  Rights  of  ^Minority  or  Single  Stockholder,  1138. 

(2)   Right  of  Action  or  Suit,  1138. 

(a)  Representation  by  Corporation  in  Litigation,  1138. 

(b)  Suits  by   Stockholders   on   Behalf   of   Corporation, 

1139. 
aa.  Right  in  General,   1139. 

bb.     Jurisdiction — 94th    Equity    Rule    and    Neces- 
sary Allegations,  1139. 
(aa)   As  to  Stockholding.   1139. 
(cc)    Averments  as  to  Eft'orts  to   Secure  Ac- 
tion by  Corporation,   1140. 
(ee")   Jurisdiction  of  Federal  Courts.   1142. 

D.  Stockholders'  Duties  and  Liabilities,  1142. 

4.  Statutory  and  Extraordinary  Liability,  1142. 
a.  Nature  and  Terms,  1142. 

(\)    Statutory  and  Contractual.   1142. 

(5)  Extent,  1142. 

d.  Who  Liable  as  Stockholders.  1142. 

d)   Nonresident  Stockholder,  1142. 
f.  Enforcement,  1142. 

(1)   Regulations    Generally    and    Means    of    Enforcement, 
1142. 

(c)  Constitutional    Proyisions   as   Self-Executing.    1142. 

(6)  Where  Enforcible,  1142. 

180-6.     Though   all   the  parties  to  a  suit  Fox  Indians  x\  Sac  &  Fox  Indians.  45  Ct. 

unite  in  a  stipulation  that  certain  ex  parte  CI.    287,    judgment    affirmed     Sac   &    Fox 

affidavits    may    be  read    as    evidence,    the  Indians  v.   Sac   &   Fox   Indians,   220  U.   S. 

court  will    not   be   I)ound   thereby.      Sac    &  481,  .5.5  L.   Ed.  552,  31    S.  Ct.  473. 

1  i.-^r, 


187-188 


STOCK  AND  STOCKHOLDERS. 


Vol.  XI. 


CROSS  REFERENCES. 

See  the  title  Stock  and  Stockholders,  vol.  11,  p.  186,  and  references  there 
given. 

In  addition,  see  ante,  Forkign  Judgments,  Records  and  Judicial  Proceed- 
ings, p.  592 ;  Officers  and  Agents  oe  Private  Corporations,  p.  925. 

II.  Definitions,   Nature  and  General  Consideration  of  Stock. 

A.  Definitions  and  Distinctions. — The  word  "stock"  is  not  uniformly 
used  to  designate  the  capital  of  a  corporation,  although  its  primary  meaning 
is  capital,  in  whatever  form  it  may  be  invested.  Indeed,  it  is  not  at  all  unus- 
ual to  find  the  word  used  synonymously  with  "shares,"  and  meaning  the  cer- 
tificates issued  to  subscribers  to  the  company's  stock. -^ 

Capital  Stock  and  Shares  Distinguished. — There  is  an  obvious  distinc- 
tion between  the  capital  stock  of  an  incorporated  company  and  the  "shares" 
of  the  company.  The  one  is  the  capital  upon  which  the  business  is  to  be  under- 
taken, and  is  represented  by  the  property  of  every  kind  acquired  by  the  com- 
pany. Shares  are  the  mere  certificates  which  represent  a  subscriber's  contri- 
laution  to  the  capital  stock,  and  measure  his  interest  in  the  company.^^^ 

E.  Certificate  of  Stock. — The  certificate  of  shares  of  stock  is  not  the 
property  itself ;  it  is  but  the  evidence  of  property  in  the  shares.  The  certificate, 
as  the  term  implies,  but  certifies  the  ownership  of  property  and  rights  in  the 
corporation  represented  by  the  number  of  shares  named. *^^ 

VI.    Assignment,  Transfer,  Sale  and  Pledge. 

B.  Essentials  of  Valid  Transfer — 4.  Filing  Statement  with  Secre- 
tary OF   State. — The  obligation  of  the  contract  under  which  the  stockholders 


187-2a.  "Stock."— Wright  v.  Georgia 
R.,  etc.,  Co.,  216  U.  S.  420,  54  L.  Ed.  544, 
30  S.  Ct.  242. 

It  is  therefore  important  to  look  at  the 
connection  in  which  the  word  is  used 
when  an  exemption  or  substituted  method 
of  taxation  is  involved,  to  see  whether 
the  legislative  intent  was  to  exempt  the 
capital  of  the  company,  in  whatever  form 
invested,  or  the  shares  of  stock  in  the 
hands  of  the  shareholders.  Powers  v. 
Detroit,  etc.,  R.  Co.,  201  U.  S.  543,  559,  50 
L.  Ed.  860,  26  S.  Ct.  556;  Wright  v.  Geor- 
gia R.,  etc..  Co.,  216  U.  S.  420,  54  L.  Ed. 
544,  30  S.  Ct.  242. 

Stock  meaning  capital. — Capital,  in 
whatever  form  invested,  appropriate  to 
the  purpose  of  the  company,  and  not 
merely  the  shares  held  by  stockholders, 
must  be  regarded  as  meant  by  the  word 
"stock,"  as  used  in  a  provision  of  a  rail- 
way charter  that  the  stock  of  the  com- 
pany and  its  branches  shall  be  exempt 
from  taxation  for  seven  years,  and  after 
that  shall  be  subject  to  a  tax  not  exceed- 
ing a  given  per  cent  upon  the  net  proceeds 
of  their  investments,  in  view  of  the  rec- 
ognition in  other  provisions  of  the  char- 
ter of  the  distinction  between  capital 
stock  and  "shares,"  and  of  least  sixty 
years'  legislative  and  executive  acquies- 
cence in  reading  this  partial  exemption 
as  applicable  to  the  capital  stock  of  the 
company,  and  of  a  series  of  decisions  of 
the  highest  state  court,  holding  either 
that  the  whole  of  the  capital  was  exempt. 


in  whatever  form  invested,  or  so  much  of 
the  investment  as  corresponded  in  value 
to  the  authorized  capital  stock.  Wright 
V.  Georgia  R..  etc.,  Co.,  216  U.  S.  420,  54 
L.   Ed.  544.  30  S.   Ct.  242. 

187-3a.  Capital  stock  and  shares  distin- 
guished.— Wright  V.  Georgia  R.,  etc.,  Co., 
31G  U.   S.  420,  54  L.   Ed.  544,  30  S.   Ct.  242. 

188-6a.  Certificate  of  stock. — Richard- 
son V.  Shaw,  209  U.  S.  365,  52  L.  Ed.  835, 
28  S.  Ct.  512. 

A  certificate  of  the  same  numl^er  of 
shares,  although  printed  upon  dififerent 
paper  and  bearing  a  different  number, 
represents  precisely  the  same  kind  and 
value  of  property  as  does  another  certifi- 
cate for  a  like  number  of  shares  of  stock 
in  the  same  corporation.  One  share  of 
stock  is  not  different  in  kind  or  value 
from  every  other  share  of  the  same  issue 
and  company.  They  are  unlike  distinct 
articles  of  personal  property  which  differ 
In  kind  and  value  such  as  a  horse,  wagon 
or  harness.  Tiie  stock  has  no  earmark 
which  distinguishes  one  share  from  an- 
other, so  as  to  give  it  any  additional  value 
or  importance;  like  grain  of  uniform 
quality,  one  bushel  is  of  the  same  kind 
and  value  as  another.  It  is  a  misconcep- 
tion of  the  nature  of  the  certificate  to  say 
that  a  return  of  a  different  certificate  or 
the  right  to  substitute  one  certificate  for 
another  is  a  material  change  in  the  prop- 
erty right  held  by  the  broker  for  cus- 
tomer. Richardson  v.  Shaw,  209  U.  S.  365, 
52  L.   Ed.  835,  28  S.  Ct.  512. 


1136 


Vol.  XL 


STOCK  AND  STOCKHOLDERS. 


199-203 


in  a  Kansas  corporation  acquired  their  stock  is  not  unconstitutionally  impaired 
by  Laws  Kan.  1898  (Sp.  Sess.)  p.  32,  c.  10,  §  12,  requiring,  as  a  condition 
of  a  legal  or  binding  transfer  of  stock,  that  a  statement  of  such  transfer  shall 
be  filed  with  the  secretary  of  state  by  the  president,  secretary,  or  managing 
officer  of  the  corporation,  although,  when  the  stock  was  acquired,  the  sole 
requirement  of  the  Kansas  statutes  in  this  regard  was  that  corporate  stock 
should  be  transferable  only  on  the  books  of  the  corporation. ''■'■'' 

E.  Sale  of  Stock — 3.  Effect  of  Fraud  or  Mistake — b.  Rescission. — 
Purchase  of  Stock  by  Officer  of  Corporation. — Whether  or  not  the  ordi- 
nary relations  between  directors  and  shareholders  in  a  business  corporation 
are  not  of  such  a  fiduciary  nature  as  to  make  it  the  duty  of  a  director  to  dis- 
close to  a  shareholder  the  general  knowledge  which  he  may  possess  regarding 
the  value  of  the  shares  of  the  company  before  he  purchases  any  from  a  share- 
holder, yet  there  are  cases  where,  by  reason  of  the  special  facts,  such  duty 
exists. •'*"'^ 

Want  of  Authority  of  Agent  of  Seller. — The  purchaser  of  stock  can  not 
escape  liability  for  his  fraud  in  concealing  facts  affecting  its  value  which  he 
was  in  good  faith  bound  to  disclose,  on  the  theory  that,  because  of  the  insist- 
ence of  the  seller  that  her  agent  was  not  authorized  to  make  the  sale,  there 
had  never  been  any  consent  on  her  part,  obtained  by  fraud  or  otherwise,  where 
the  court  finds  that  the  agent's  authority  was  sufficient,  since,  in  legal  effect, 
her  consent  will  be  deemed  induced  by  the  fraud. •''"'^ 

G.  Pledge  of  Stock — 1.  What  Constitutes. — Pledge  by  Means  of 
Forged  Power  of  Attorney. — No  interest,  legal  or  equitable,  was  acquired 
as  against  the  true  owner,  in  the  absence  of  any  laches  or  negligence  on  his 
part,  under  an  attempted  pledge  of  a  stock  certificate  by  means  of  a  forged 
power  of  attorney  by  a  firm  of  brokers  who  held  the  same  as  evidence  of  the 


199-65a.  Henley  z:  Meyers,  215  U.  S. 
373,  .54  L.  Ed.  240,  30  S.  Ct.  148,  affirming 
76   Kan.   723,  93   Pac.  168,  17   L.   R.  A.  779. 

203-87a.  Purchase  of  stock  by  officers. 
— A  purchase  of  stock  in  a  corporation 
by  a  director  and  owner  of  three-fourths 
of  the  entire  capital  stock,  who  was  also 
administrator  general  of  the  company, 
and  engaged  in  the  negotiations  which  fi- 
nally led  to  the  sale  of  the  company's 
lands  to  the  Philippine  Islands  govern- 
ment at  a  price  which  greatly  enhanced 
the  value  of  the  stock,  was  fraudulent  as 
procured  by  "insidious  machinations"  in- 
ducing the  execution  of  the  contract  of 
sale,  within  the  meaning  of  P.  L  Code, 
art.  1269,  dcfinmg  deceit,  where  he  em- 
ployed an  agent  to  make  the  purchase, 
concealing  both  his  own  identity  as  the 
purchaser,  and  his  knowledge  of  the  state 
of  the  negotiations  and  their  probable 
successful  result.  Strong  v.  Repide,  213 
U.  S.  419,  53  L.  Ed.  853,  29   S.   Ct.  521. 

"The  supreme  court  of  Kansas  and  of 
Georgia  have  held  the  relationship  existed 
in  the  cases  before  those  courts  because 
of  the  special  facts  which  took  them  out 
of  the  general  rule,  and  that,  under  those 
facts,  the  director  could  not  purchase 
from  the  shareholder  his  share  without 
informing  him  of  the  facts  which  efifected 
their  value.  Stewart  z'.  Harris,  69  Kan. 
498,  66  L.  R.  A.  261,  105  Am.  St.  Rep.  178, 


77  Pac.  277,  2  A.  &  E.  Ann.  Cas.  873;  Oli- 
ver V.  Oliver,  118  Ga.  362,  45  S.  E.  232. 
The  case  before  us  is  of  the  same  general 
character.  On  the  other  hand,  there  is 
the  case  of  Tippecanoe  County  z'.  Rey- 
nolds, 44  Ind.  509-515,  15  Am.  Rep.  245, 
where  it  was  held  (after  referring  to 
cases)  that  no  relationship  of  a  fiduciary 
nature  exists  between  a  director  and  a 
shareholder  in  a  business  corporation. 
Other  cases  are  cited  to  that  effect  by 
counsel  for  defendant  in  error.  These 
cases  involved  only  the  bare  relationship 
betw"een  director  and  shareholder.  It  is 
liere  sought  to  make  defendant  responsi- 
l)le  for  his  actions,  not  alone  and  simply 
in  his  character  as  a  director,  but  because, 
in  consideration  of  all  the  existing  cir- 
cumstances above  detailed,  it  became  the 
duty  of  the  defendant,  acting  in  good 
faith,  to  state  the  facts  before  making  the 
purchase."  Strong  f.  Repide,  213  U.  S. 
419,  53   L.   Ed.  853,  29  S.   Ct.  521. 

203-87b.  Want  of  authority  of  agent  of 
seller. — "If  the  purchase  of  the  stock  l)y 
the  defendant  was  obtained  l>y  reason  of 
his  fraud  or  deceit,  it  is  not  material  to 
enauire  whether  the  agent  of  the  plaintiff 
had  power  to  sell  the  stock.  If  fraud  or 
deceit  existed,  the  sale  can  not  stand." 
Strong  z:  Repide,  213  U.  S.  419,  53  L.  Ed. 
853,   29   S.   Ct.   521. 


12  U  S   Enc- 


1137 


205-229 


STOCK  AND  STOCKHOLDERS. 


A'ol.  XI. 


owner's   financial-  responsibility,   and  under   an   express   agreement   that   it   was 
not  to  pass  out  of  their  possession. 2*^ 

6.  Purchase  on  Margin  through  Stockbroke;r. — A  stockbroker  is  not 
the  owmer  of  the  shares  of  stock  which  he  purchases  and  carries  for  his  cus- 
tomers on  margin,  but  is  essentially,  if  not  strictly,  as  understood  at  common 
law,  a  pledgee.^^ 

I.  Purchase  by  Director. — See  ante,  "Rescission,"  VI,  E.  3,  b.  Article 
1459  of  the  Spanish  Civil  Code,  prohibiting  directors  of  corporations  from 
acquiring  by  purchase  the  property  the  sale  of  which  may  have  been  entrusted 
to  them,  and  declaring  them  to  be  mandatories,  has  no  reference  to  the  pur- 
chase for  himself,  by  an  officer  of  corporation,  of  stock  in  the  corporation 
owned  by  another. ^^ 

VIII.    Stockholders. 

B.  Stockholders'  Meeting-  and  Formality  of  Action. — Interpretation 
of  Resolution. — In  interpreting  the  action  of  the  stockholders  in  passing  a 
resolution,  the  facts  and  circumstances  surrounding  them  may  legitimately  be 
looked  to. I''-'' 

C.  Stockholders'  Rights  and  Powers- — 1^.  Control  of  Corporate  Af- 
fairs— c.  Rights  of  Minority  or  Single  Stockholder — (2)  Right  of  Action  or 
Suit — (a)  Representation  by  Corporation  in  Litigation. — A  stockholder  is  rep- 
resented by  the  corporation  in  all  actions  against  the  corporation  for  corpo- 
rate liabilities.  A  stockholder  is  by  the  very  law  of  corporate  existence  an  in- 
tegral part  of  the  corporation,  and  is  bound  by  a  judgment  against  it  in  respect 
of  any  matter  within  the  scope  of  corporate  powers.-*^ 


205-2a.  Pledgee  by  means  of  forged 
power  of  attorney. — Unit}-  Banking,  etc.. 
Co.  V.  Bettman,  217  U.  S'.  127.  54  L.  Ed. 
695.  30  S.  Ct.  488,  affirming  159  Fed.  916. 
87  C.  C.  A.  96, 

205-4a.  Purchase  on  margin  through 
stockbroker. — Richardson  ?■.  vShaw,  209  U. 
S.  365,  52  L.  Ed.  835,  28  S.  Ct.  512.  See 
ante,  BROKERS,  p.  212. 

Return  of  margined  stock  by  stock- 
broker as  preference  in  violation  of  Bank- 
ruptcy Act.— See  ante,  BANKRUPTCY, 
p.  168. 

Return  of  excess  margins  by  stock- 
broker as  preference  forbidden  by  Bank- 
ruptcy Act.— See  ante,  BANKRUPTCY, 
p.  168. 

205-5a.  Stronp;  z:  Repide,  213  U.  S.  419. 
53  L.   Ed.  853,  29  S.  Ct.  521. 

226-18a.  Interpretation  of  resolution. — 
Zeckendorf  z:  Steinfeld.  225  U.  S.  445,  56 
L.  Ed.  1156,  32  S.  Ct.  728. 

In  Canal  Co.  x:  Hill,  15  \Yall.  94,  101. 
21  L.  Ed.  64,  the  court  said:  "This  kind 
of  evidence  is  especially  pertinent  when 
the  inquiry  is  as  to  the  subject  matter  of 
the  ai-'reenient.  To  the  same  efi'ect.  Reed 
z:  Insurance  Co.,  95  U.  S.  23,  31,  24  L.  Ed. 
348."  Zeckendorf  v.  Steinfeld,  225  U.  S. 
445,  56  L.   Ed.  1156,  32  S.   Ct.  728. 

229-28a.  Bigelow  z:  Old  Dominion,  etc.. 
Smelting  Co..  225  U.  S.  Ill,  141.  56  L.  Ed. 
1009.  32  S.  Ct.  641. 

In  an  action  on  a  judgment  in  favor  of 
a  creditor  of  a  corporation,  by  the  cred- 
itor in  another  state  against  a  stock- 
holder to   subject  him   to  a  statutory  lia- 


l)ility  as  a  shareholder,  there  is  a  privity 
in  interest  and  a  representation  in  law  of 
the  stockholder  by  the  corporation  of 
which  he  is  a  member.  The  conclusive- 
ness of  such  a  judgment  as  binding  each 
stockholder  does  not,  however,  extend  to 
matters  in  which  the  corporation  can  not 
be  said  to  represent  him.  It  is  not  con- 
clusive as  against  any  individual  sued  as 
a  stockholder  that  he  is  one,  or  if  one,  that 
he  has  not  already  discharged  by  payment 
to  some  other  creditor  of  the  corporation 
the  full  measure  of  his  liability,  or  that  he 
has  not  claims  against  the  corporation, 
or  judgments  against  it,  which  may  in  law 
or  equity,  as  any  debtor,  whether  by  judg- 
ment or  otherwise,  set  off  against  a  claim 
or  judgment,  but  in  other  respects  it  is 
an  adjudication  binding  him.  He  is  so 
far  a  part  of  the  corporation  that  he  is 
represented  by  it  in  the  action  against  it. 
Bigelow  z\  Old  Dominion,  etc..  Smelting 
Co..  225  U.  S.  Ill,  141,  56  L.  Ed.  1009,  32 
S.  Ct.  641. 

There  is  no  parallel  Ijetween  the  rela- 
tion of  joint  tort  feasor  and  that  of  a 
stockholder  to  his  corporation.  In  the 
latter  case,  the  stockholder,  by  the  or- 
ganic law  of  his  corporation,  is  a  member 
and  represented  by  it  so  long  as  it  keeps 
within  its  corporate  powers.  In  the  other 
instance  one  wrongdoer  when  sued  does 
not'  represent  those  not  sued,  although 
they  had  ro-ooerated  in  the  wrong  and 
were  both  liable.  Bigelow  z\  Old  Domin- 
ion, etc..  Smelting  Co..  225  U.  S.  Ill,  142. 
56  L.  Ed.  1009,  32   S.  Ct.  641. 


113S 


Vol.  XL 


STOCK  AXD  STOCKHOLDERS. 


229-232 


(b)  Suits  by  Stockholders  on  Behalf  of  Corporation — aa.  Right  in  General. 
— A  shareholder  may  interpose  and  set  the  machinery  of  the  law  in  motion 
for  the  protection  of  corporate  rights,  or  the  redress  of  corporate  wrongs, 
when  the  corporate  management,  after  proper  demand,  refuses  or  fails  to  act 
in  the  matter.  This  doctrine  also  obtains  under  the  equity  rule  94.3*"^  The 
directory  of  a  corporation  may  be  derelict  and  the  interests  of  stockholders 
put  in  peril,  and  a  case  hence  arises  in  which  the  right  of  protecting  the  cor- 
poration accrues  to  them.-'^^'* 

Restraining  Payment  of  Unconstitutional  Tax. — See  note  Zi. 

Diverse  Citizenship  of  Corporate  Defendant  and  Complaining  Stock- 
holder.— The  corporate  defendant  and  the  complaining  stockholder  will  not 
be  aligned  on  the  same  side  of  the  controversy  for  the  purpose  of  determining 
the  jurisdiction  of  a  federal  circuit  court,  invoked  on  the  ground  of  diverse 
citizenship,  because  it  may  be  for  the  financial  interests  of  the  corporation 
that  the  suit  shall  succeed,  where  the  corporation  unites  with  the  other  defend- 
ant in  resisting  the  claim  of  illegality  and  fraud,  and  both  are  alleged  to  have 
engaged  in  the  same  illegal  and  fraudulent  conduct,  and  the  injury  is  alleged 
to  have  been  accomplished  by  their  joint  action.-^ '^'^ 

Necessity  for  Contest  or  Ultra  Vires  or  Illegal  Conduct. — See  note  39. 

bb.  Jurisdiction — Q^tli  Equity  Rule  and  Xecessary  Allegations — (  aa)  As  to 
Stockholding. — Every  bill   brought  by  one  or  more   stockholders   in  a  corpora- 


229-30a.  Delaware,  etc.,  Co.  v.  Albany, 
etc..  R.  Co..  213  U.  S.  435,  .53  L.  Ed.  86:?. 
29  S.  Ct.  540. 

In  Doctor  v.  Harrington,  196  U.  S.  579, 
49  L.  Ed.  606,  25  S.  Ct.  35,  the  court  said: 
"The  ultimate  interest  of  the  corporation 
made  defendant  may  be  the  same  as  that 
of  the  stockholder  made  plaintiff,  but  the 
corporation  maj'  be  imder  a  control  an- 
tagonistic to  him,  and  made  to  act  in  a 
way  detrimental  to  his  rights.  In  othet 
words,  his  interests,  and  the  interests  of 
the  corporation,  may  be  made  subservient 
to  some  illegal  purpose."  Venner  7'. 
Great  Northern  R.  Co.,  209  U.  S.  24,  52  L. 
Ed.  666,  28  S.  Ct.  328. 

As  a  typical  case  of  the  kind  "which 
enforces  the  doctrine  that  the  rights  of 
the  corporation  must  be  asserted  through 
the  corporation.  Hawes  v.  Oakland,  104 
U.  S.  450,  26  L.  Ed.  827,  is  cited."  Dela- 
ware, etc..  Co.  V.  Albany,  etc.,  R.  Co.,  213 
U.   S.  435.  53  L.  Ed.  862,  29  S.   Ct.  540. 

Qujere,  whether  suits  are  ever  justified 
by  de^nand  on  the  directors  alone,  or 
whether  stockholders  have  the  power  to 
compel  directors  to  institute  suits  to 
which  the  directors  are  opposed?  Dela- 
ware, etc.,  Co.  7\  Albany,  etc..  R.  Co..  213 
U-   S.   435.  53  L.   Ed.  862.  29  S.   Ct.  540. 

230-31a.  Delaware,  etc..  Co.  v.  Albany, 
etc..  R.  Co.,  213  U.  S.  435.  53  L.  Ed.  862, 
:29  S.  Ct.  540. 

230-33.  See  Delaware,  etc..  Co.  i\ 
Albany,  etc.,  R.  Co..  213  U.  S.  435.  53  E. 
Ed.  Sti2.   29   S.   Ct.   540. 

231-38a.  Diverse  citizenship  of  corpo- 
rate defendant  and  complaining  stock- 
holder.— Venner  <■.  Great  Xnrthern  R. 
Co..  209  U.  ?  24.  52  E.  Ed.  dOr,.  28  S.  Ct. 
328 


232-39.  Necessity  for  contest  between 
stockholder  and  corporation  and  illegal 
or  ultra  vires  conduct. — "Hawes  v.  Oak- 
land, 104  U.  S.  450,  26  L.  Ed.  827,  is  cited. 
In  that  case  Dodge  v.  Woolsey,  18  How. 
331.  15  L.  Ed.  401.  was  declared  to  be  the 
leading  case  on  the  subject  in  this  coun- 
try, and,  examining  the  latter  case,  it  was 
said  that  it  did  not  establish,  nor  was  it 
intended  to  establish,  a  doctrine  different 
in  any  material  respect  from  that  found 
in  the  other  American  cases  and  the  Eng- 
lish cases.  And  the  doctrine  was  said  to 
be  that,  to  enable  a  stockholder  in  a  cor- 
poration to  sustain  in  a  court  of  equity  a 
suit  founded  on  a  right  of  action  existing 
in  the  corporation  itself,  and  in  which  the 
corporation  itself  is  the  appropriate 
plaintiff,  there  must  exist  as  a  foundation 
for  the  suit  soine  action  or  threatened  ac- 
tion of  the  managing  board  of  directors 
which  is  beyond  their  authority;  a  fraud- 
ulent transaction,  completed  or  contem- 
plated, which  will  result  in  serious  injury 
to  the  corporation  or  stockholders;  where 
the  board  of  directors,  or  a  majority  of 
them,  are  acting  for  their  own  interest  in 
a  manner  destructive  of  the  corporation 
itself  or  of  the  rights  of  other  stockhold- 
ers; or  where  a  majority  of  the  stockhold- 
ers themselves  are  oppressively  and  ille- 
gally pursiiinG;  a  course  inimical  to  the  cor- 
poration or  to  the  rights  of  the  other 
stockholders.  The  court  expressed  the 
possibility  that  other  cases  might  arise, 
but  said  'the  foregoing  ma}^  be  regarded 
as  an  outline  of  the  principles  which  gov- 
ern tliis  class  of  cases.'"  Delaware,  etc.. 
Co  :■.  Albany,  etc.,  R.  Co..  213  U.  S.  43.5, 
53  E    Ed.  Sfi2.  29   S.  Ct.  540.     ' 


1  :',9 


233 


STOCK  AND  STOCKHOLDERS. 


Vol.  XL 


tion,  against  corporation  and  other  parties,  founded  on  rights  which  may 
properly  be  asserted  by  the  corporation,  must  be  verified  by  oath,  and  must 
contain  an  allegation  that  the  plaintifif  was  a  shareholder  at  the  time  of  the 
transaction  of  which  he  complains,  or  that  his  share  had  devolved  on  him  since, 
by  operation  of  law.  Such  is  the  94th  equity  rule.  It  had  been  held  before 
the  rule  was  adopted,  that  when  it  was  alleged  and  not  denied  that  the  com- 
plainant was  the  owner  of  stock  in  his  own  right  it  was  sufficient.^ -^  Neither 
the  rule  nor  the  decision  from  which  it  was  derived  deals  with  the  question 
of  the  jurisdiction  of  the  courts,  but  only  prescribes  the  manner  in  which  the 
jurisdiction  shall  be  exercised.'*-^''  The  failure  of  a  complaining  stockholder, 
in  an  action  by  him  against  the  corporation,  to  bring  his  case  within  the  terms 
of  equity  rule  94,  while  justifying  the  dismissal  of  the  bill  for  want  of  equity, 
does  not  defeat  the  jurisdiction  of  the  federal  circuit  court  over  the  suit,  if 
the  requisite  diversity  of  citizenship  exists,  the  jurisdictional  amount  is  in- 
volved, and  defendant  is  properly  served  with  process  within  the  district."*-'*' 

(cc)  Avenncnts  as  to  Efforts  to  Secure  Action  by  Cor[>oration. — Under  rule 
94  the  plaintiff  must  set  forth  with  particularity  his  efforts  to  secure  action 
on  the  part  of  the  managing  directors  or  trustees  of  the  corporation  of  which 
he  is  a  member,  and,  if  necessary,  of  the  shareholders,  and  the  causes  of  his 
failure   to   obtain   such    action."*''"^     Rule   94   expresses   primarily   the   conditions 


233-42a.      Ninety-fourth     equity    rule. — 

"The  rule  simply  expresses  the  principles 
which  this  court,  after  a  review  of  the  au- 
thorities, had  declared  in  Hawes  v.  Oak- 
land, 104  U.  S.  450,  26  L.  Ed.  827."  Ven- 
ner  v.  Great  Northern  R.  Co.,  209  U.  S.  24. 
52   L.   Ed.   666,  28  S.   Ct.   .328. 

"The  purpose  of  rule  No.  94  hardly 
needs  explanation.  It  is  intended  to  se- 
cure the  federal  courts  from  imposition 
upon  their  jurisdiction,  and  recognizes 
the  right  of  the  corporate  directory  to 
corporate  control;  in  other  words,  to 
make  the  corporation  paramount,  even 
when  its  rights  are  to  be  protected  or 
sought  through  litigation.  Cases  in  this 
court  have  indicated  such  right."  Dela- 
ware, etc.,  Co.  V.  Albany,  etc.,  R.  Co.,  213 
U.   S.  4,35,  53   L.   Ed.  862,  29  S.  Ct.  540. 

233-43a.  Venner  v.  Great  Northern  R. 
Co.,  209  U.  S.  24,  52  L.  Ed.  666,  28  S.  Ct 
328. 

233-43b.  Venner  v.  Great  Northern  R. 
Co.,  209  U.  S.  24,  52  L.  Ed.  666,  28  S.  Ct. 
328. 

"If  a  controversy  of  this  general  nature 
is  brought  in  the  circuit  court  and  the 
necessary  diversity  of  citizenship  exists, 
but,  upon  the  pleadings  or  the  proof,  it 
appears  that  the  plaintiff  has  not  shown 
a  case  within  the  decision  in  Hawes  z'. 
Oakland,  or  the  rule  of  court  declaratory 
of  that  decision,  the  1)ill  should  be  dis- 
missed for  want  of  equity,  and  not  for 
want  of  jurisdiction.  The  dismissal  of 
the  bill  would  not  be  the  denial  but  the 
assertion  and  exercise  of  jurisdiction.  So 
it  was  that  in  Hawes  v.  Oakland  the  de- 
murrer was  sustained  and  the  bill  dis- 
missed, not  for  want  of  jurisdiction,  but,  in 
the  words  of  the  court  (p.  462)  'because 
the     appellant    shows    no    standing    in     a 


court  of  equity,  no  right  in  himself  to 
prosecute  this  suit.'  The  same  order  was 
made  in  Huntington  v.  Palmer,  104  U.  S. 
482,  26  L.  Ed.  833,  and  Quincy  v.  Steel, 
120  U.  S.  241,  30  L.  Ed.  624.  7  S.  Ct.  520. 
This  very  question  was  considered  by  the 
court  in  Illinois  Cent.  R.  Co.  v.  Adams, 
180  U.  S.  28,  45  L.  Ed.  410,  21  S.  Ct.  253." 
Venner  v.  Great  Northern  R.  Co.,  209  U. 
S.  24.  52   L.   Ed.  666,  28   S.   Ct.  328. 

233-46a.  Delaware,  etc..  Co.  v.  Albany, 
etc.,  R.  Co.,  213  U.  S.  435,  53  L.  Ed.  862, 
29  S.  Ct.  540. 

The  object  of  the  suit  in  Corbus  v. 
Alaska  Treadwell  Gold  Min.  Co.,  187  U. 
S.  455,  47  L.  Ed.  256,  23  S.  Ct.  157,  "was 
to  enjoin  the  board  of  directors  of  the 
corporation  from  paying  a  license  tax 
levied  upon  the  corporation  tmder  the 
provisions  of  an  act  of  congress.  Corbus, 
the  coinplainant  in  the  suit,  was  a  stock- 
holder of  the  corporation,  and  alleged,  as 
the  reason  of  the  suit  by  him,  that  he  was 
unable  to  request  the  directors  of  the 
company  to  refuse  to  pay  the  tax  or  ap- 
ply for  the  license  required  by  reason  of 
their  great  distance  from  him;  but  that 
he  had  made  such  request  of  the  officers 
of  the  company  residing  in  Alaska,  and 
that  they  had  refused  to  comply  with  the 
request.  Of  this  allegation  the  court  said 
tiiat  it  showed  no  compliance  with  rule  94, 
and  that  complainant  simply  relied  on  the 
distance  of  the  directors  from  where  he 
resided  as  an  excuse  for  not  applying  to 
them.  'We  are  of  opinion,'  it  was  said, 
'that  the  excuse  is  not  sufficient.  He 
should,  at  least,  have  shown  some  effort.  If 
he  had  made  an  effort  and  obtained  no 
satisfactorj'  result,  either  by  reason  of  the 
distance  of  the  directors  or  by  their  dila- 
toriness  or  unwillingness  to  act,   a  dififer- 


1140 


A^ol.  XL 


STOCK  AND  STOCKHOLDERS. 


233 


which  must  precede  the  exercise  of  the  right  of  a  stockholder  to  protect  the 
corporation  by  suit,  but  emergencies  may  arise  in  which  the  antagonism  be- 
tween the  directory  and  the  corporate  interest  may  be  unmistakable,  and  the 
recjuirements  of  the  rule  may  be  dispensed  with ;  or,  it  is  more  accurate  to 
say,  do  not  apply. ^''''     Rule  94  is  intended  to  have  practical  operation,  and  to 


ent  case  would  have  been  presented;  but 
to  do  nothing  is  not  sufficient."  "  Dela- 
ware, etc.,  Co.  z\  Albanj',  etc..  R.  Co.,  2t3 
U.   S.  435,   53   L.    Ed.   863,  29   S.   Ct.  540. 

Injunction  against  compliance  with 
statute  regulating  rates. — A  bill  by  stock- 
holders of  a  railroad  company  to  enjoin 
it  from  compljnng  with  a  statute  relating 
to  rates  sufficiently  sets  out  the  reason 
for  their  commencing  it  and  making  the 
company  a  party  defendant  by  alleging 
that  they  had  demanded  of  the  corporate 
officers  that  they  refuse  obedience  to  the 
statute,  and  should  institute  suits  to  pre- 
vent its  enforcement,  but  that  the  com- 
pany and  its  officers  had  positively  re- 
fused to  do  so,  not  because  they  consid- 
ered the  rates  just,  or  that  they  would 
not  be  confiscatory,  but  because  of  the 
severity  of  the  penalties  provided  for  vio- 
lation of  the  statute,  to  the  ruinous  con- 
sequences of  which  they  would  not  subject 
theinselves,  and  which  no  action  by  them- 
selves, their  stockholders,  or  directors 
could  avoid.  Ex  parte  Young,  209  U.  S. 
123,  52  L.  Ed.  714,  28  S.  Ct.  441. 

233-46b.  Delaware,  etc.,  Co.  v.  Albany, 
etc.,  R.  Co.,  213  U.  S.  435,  53  L.  Ed.  862, 
29  S.  Ct.  540. 

"A  case  *  *  *  where  the  circumstances 
take  the  cases  out  of  the  rule,  is  Doctor 
V.  Harrington,  196  U.  S.  579,  49  L.  Ed. 
606,  25  S.  Ct.  35.  The  suit  was  brought 
by  Doctor  and  others  as  stockholders  of 
a  corporation,  called  the  Sal  Sayles  Com- 
pany to  set  aside  a  judgment  obtained  by 
the  Harringtons  against  that  company. 
The  bill  alleged  that  tlie  suit  was  not  col- 
lusive; that  complainants  were  unable  to 
obtain  redress  from  the  company  or  "at 
the  hands'  of  its  stockholders.  It  further 
alleged  that  the  board  of  directors  of  the 
corporation  was  'under  the  absolute  con- 
trol and  domination  of  the  defendant,  John 
J.  Harrington,  and  that  said  Harrington, 
b}-  reason  of  the  possession  of  a  majority 
of  the  capital  stock  of  said  corporation,' 
likewise  controlled  'the  action  of  the 
stockholders.'  It  was  further  alleged  that 
he  refused  to  give  any  information  with 
regard  thereto,  and  declined  to  redress 
the  wrongs  of  which  complaint  was  made, 
or  give  complainants  any  opportunity  to 
lay  before  the  board  of  directors  or  the 
stockholders  of  the  company  the  facts  set 
forth.  It  will  be  observed,  therefore,  that 
there  was  no  compliance  with  the  require- 
ments of  rule  94,  as  expressed  in  its  letter. 
The  efforts  that  were  made  to  secure  the 
action  of  the  managing  directors  or  trust- 


ees were  not  "set  forth  with  particularity.' 
Nothing  was  alleged  but  the  domination 
of  John  J.  Harrington  and  his  control  of 
the  directors.  What  he  did,  in  what  way 
he  exerted  control,  was  not  alleged.  In 
other  words,  the  bill  seemed  to  show  a 
case,  not  of  compliance  with  the  require- 
ments of  rule  94,  but  circumstances  which 
excused  from  such  compliance.  Coming 
to  consider  the  effect  of  those  allegations, 
we  said  that  rule  94  contemplates  that 
there  maj^  be,  and  provides  for,  a  suit  by 
the  stockholders  in  a  corporation,  founded 
on  rights  which  may  be  properly  asserted 
by  the  corporation.  And  we  further  said 
that  'the  ultimate  interest  of  the  corpora- 
tion made  defendant  may  be  the  same  as 
that  of  the  stockholder  made  plaintiff, 
but  the  corporation  may  be  under  a  con- 
trol antagonistic  to  him,  and  made  to  act 
in  any  way  detrimental  to  his  interest. 
In  other  words,  his  interests  and  the  in- 
terests of  the  corporation  may  be  sub- 
servient to  some  illegal  purpose.'  And 
we  decided  that  these  principles  were  sat- 
isfied by  the  allegations  of  the  bill,  and 
that  such  antagonism  existed  between  the 
complainants  in  the  suit  and  the  directors 
of  the  corporation  tliat  they  would  'suffer 
irremediable  loss  if  not  permitted  to  sue.' 
In  other  words,  the  complainants  were 
in  such  a  situation  by  reason  of  the  power 
which  Harrington  possessed  over  those 
who  managed  the  corporation,  directors 
and  stockholders,  that  appeals  to  them 
for  action  would  have  l^een  futile.  Prior 
cases  were  considered,  including  Dodge  7'. 
Woolsey  and  Hawes  f.  Oakland,  and  the 
conclusion  reached  was  pronounced  to  be 
in  accordance  with  their  doctrine."  Dela- 
ware, etc.,  Co.  V.  Albany,  etc.,  R.  Co.,  213 
U.   S.   435,   53   L.   Ed.   862,   29   S.   Ct.   540. 

Bill  for  accounting  against  corporation 
and  its  lessee. — Effort  to  secure  action  by 
a  corporation,  its  directors  or  sharehold- 
ers, need  not  be  made  and  set  forth  with 
the  particularity  required  by  equity  rule 
94,  in  order  to  sustain  a  bill  filed  by  share- 
holders against  the  corporation  and  its 
corporate  lessee  to  obtain  an  accounting 
for  unpaid  rentals,  where  a  majority  of 
the  directorate  of  the  former  corporation, 
to  whose  interest  it  was  to  assert  the 
right  to  payment  and  demand  it,  were, 
and  had  been  for  many  years,  officers,  di- 
rectors, and  employees  of  the  other  com- 
pany, to  whose  interest  it  was  to  deny  in- 
debtedness and  resist  payment,  and  the 
latter  company  and  its  directors  and  offi- 
cers controlled  a  working  majority  of  the 
stock  vote  of  the  other  corporation.     Del- 


141 


233-248 


STOCK  AND  STOCKHOLDERS. 


Vol.  XI. 


have  that  it  must,  as  to  its  requirements,  be  given  such  play  as  to  fit  the  con- 
ditions of  different  cases."* •^'^ 

(ee)  'Jurisdiction  of  Federal  Courts. — If  such  a  controversy  arises  and 
the  other  conditions  of  jurisdiction  exist,  it  can  be  litigated  in  the  federal 
courts.^"^"" 

D.  Stockholders'  Duties  and  Liabilities — 1-.  Statutory  and  Extraor- 
dinary Liability — a.  Nature  and  Terms — (1)  Statutory  and  Contractual. — 
This  liability  is  not  to  the  corporation,  but  to  the  creditors  collectively;  is 
not  penal,  but  contractual;'^''  is  not  joint,  but  several;  and  the  mode  and 
means  of  its  enforcement  are  subject  to  legislative  regulation.'''*'' 

(5)  Extent. — The  extent  of  the  liability  is  ordinarily  the  par  value  of  the 
stock  held  or  owned  by  the  shareholder.^"*-^  The  state  constitution,  statutes 
and  decisions  must  be  looked  to  in  order  to  determine  the  nature  and  extent 
of  the  liability  in  question.^-*" 

d.  Who  Liable  as  Stockholders — (1)  Nonresident  Stockholder. — See  post, 
"Where  Enforcible,"  VIII,  D,  4,_f,  (6). 

f.    Enforcement — (1)     Regulations  Generally  and  Means  of  Enforcement — 
(c)    Constitutional  Provisions  as  Self -Executing. — The  provision  is  self-execu- 

(6)  Where  Enforcible. — Enforcement  by  Receiver. — If  a  receiver  can  not 
maintain  an  action  in  the  courts  of  his  own  state  to  enforce  the  stockholders" 
statutory  liability,  because  its  statute  provides  another  in  the  name  of  a  cred- 
itor, or  permits  it  only  after  the  performance  of  a  condition  precedent  which 
he  has  not  performed,  he  can  not,  although  appointed  in  the  state,  maintain 
such  action  in  a  foreign  jurisdiction,  and  comity  can  not  avail  in  such  case.-^^ 


aware,  etc.,  Co.  v.  Albany,  etc.,  R.  Co.,  213 
U.  S.  435,  53   L.   Ed.  862,  29  S.  Ct.  540. 

It  may  be  well  doubted  whether  the 
director  of  the  lessor  company,  being  di- 
rectors of  the  lessee  company,  and  who, 
either  from  an  apathy  that  endured 
through  many  years,  could  disern  no 
right  in  that  company  to  assert,  or, 
through  conviction  of  the  absence  of 
right,  were  the  best  agents  to  begin  or 
conduct  a  litigation  of  such  right.  It  was 
certainly  natural  enough  that  a  stock- 
holder should  seek  more  earnest  repre- 
sentatives, and  consider  that  the  direct- 
ors "occupied,"  to  use  the  language  of 
Dodge  V.  Woolsey,  ''antagonistic  grounds 
in  respect  to  the  controversy"  as  to  him. 
The  attitude  of  the  directors  need  not  be 
sinister.  It  may  be  sincere.  It  was  so 
in  Chicago  v.  Mills,  204  U.  S.  321,  51  L. 
Ed.  504,  27  S.  Ct.  286,  and  Ex  parte 
Young,  209  U.  S.  123,  52  L.  Ed.  714,  28  S. 
Ct.  441,  and  other  cases.  In  this  case  it 
was  certainly  determined.  It  continued 
until  after  this  suit  was  brought.  Both 
the  lessee  company  and  the  lessor  com- 
pany, then  under  "the  administration  of 
the  lessee  company,"  to  quote  from  the 
circuit  court  of  appeals,  demurred  to  the 
y,\\\.  Delaware,  etc.,  Co.  v.  Albany,  etc., 
R.  Co.,  213  U.  S.  435,  53  L.  Ed.  862,  29  S. 
Ct.  540. 

233-460.  Delaware,  etc.,  Co.  v.  .A.lbany, 
etc..  R.  Co.,  213  U.  vS.  435,  53  L.  Ed.  862, 
29  S.  Ct.  540. 

234-47a.    Venner    v.    Great    Northern    R. 


Co.,  209  U.  S.  24,  52  L.  Ed.  666,  28  S.  Ct. 
328.  See  ante,  "Right  in  General,"  VIII, 
C,  4,  c,   (2),   (b),   aa. 

239-77a.  Statutory  and  contractual — Not 
penal. — Converse  v.  Hamilton,  224  U.  S. 
243,  56  L.  Ed.  749,  32  S.  Ct.  415. 

239-78a.  Converse  v.  Hamilto«i,  224  U. 
S.  243,  56  L.  Ed.  749,  32  S.  Ct.  415. 

240-82a.  Extent. — Converse  v.  Hamilton, 
224  U.  S.  243,  56  L.  Ed.  749,  32  S.  Ct.  415. 
Sec.  3,  art.  10,  Minn.  Const. 

240-82b.  Converse  v.  Hamilton,  224  U. 
S.  243,  56  L.  Ed.  749,  32  S.  Ct.  415. 

244-99a.  Converse  v.  Hamilton,  224  U. 
S.  243,   56   L.   Ed.  749,  32   S.   Ct.  415. 

248-25a.  Converse  v.  Hamilton,  224  U. 
S.  243,  56  L.  Ed.  749,  32  S.  Ct.  415. 

"Finney  v.  Guy,  189  U.  S.  335,  47  L. 
Ed.  839,  28  S.  Ct.  558,  *  *  *  involved  the 
right  of  a  Minnesota  receiver  and  of  the 
creditors  of  a  Minnesota  corporation  to 
sue  a  stockholder  in  Wisconsin  prior  to 
the  enactment  of  chapter  272,  and  while 
the  earlier  statute,  before  mentioned,  pro- 
vided an  exclusive  remedy  through  a 
single  suit  in  equity  in  a  Minnesota  court. 
That  remedy  having  been  exhausted,  the 
receiver  and  the  creditors  sought,  by  an 
ancillary  suit  in  Wisconsin,  to  enforce  the 
liability  of  a  stockholder  who  resided  in 
that  state  and  was  not  a  party  Xo  the  suit 
in  Minnesota.  The  supreme  court  of 
Wisconsin,  treating  the  right  to  main- 
tain the  suit  in  that  state  as  depending 
upon  comity  only,  ruled  that  it  ought  not 
to    be    entertained.      The    case    was    then 


1142 


Vol.  XI. 


STOCK  AND  STOCKHOLDERS. 


248 


Where  the  statute  confers  the  right  upon  the  receiver,  as  a  quasi  assignee  and 
representative  of  the  creditor,  and  as  such  vested  with  the  authority  to  main- 
tain an  action,  the  receiver  may  sue  in  a  foreign  jurisdiction.-"''     And  the  re- 


brought  here,  it  being  claimed  that  full 
faith  and  credit  had  not  been  accorded 
to  the  laws  of  Minnesota  and  the  proceed- 
ings in  the  suit  in  that  state.  This  claim 
was  grounded  upon  a  contention  that  the 
first  decisions  in  Minnesota,  holding  that 
the  remedy  provided  by  the  earlier  stat- 
ute was  exclusive,  that  a  receiver  could 
not  sue  thereunder,  and  that  the  rights 
of  creditors  against  stockholders  must  be 
worked  out  in  the  single  suit  in  the  home 
court,  had  been  overruled  by  later  deci- 
sions giving,  as  was  alleged,  a  dififerent 
interpretation  to  that  statute.  The  con- 
tention was  ftiUy  considered  by  this 
court,  the  cases  relied  t:pon  being  care- 
fully reviewed,  and  the  conclusion  was 
reached  that  'the  law  of  Minnesota  still 
remains  upon  this  particular  matter  as 
stated  in  the  former  cases,  which  have 
not  been  overruled.'  The  claim  under 
the  full  faith  and  credit  clause  was  ac- 
cordingly held  untenable,  and  it  was  then 
said:  'Whether,  aside  from  the  federal 
consideration  just  discussed,  the  Wiscon- 
sin court  should  have  permitted  this  ac- 
tion to  be  maintained,  because  of  the 
principle  of  comity  between  the  states, 
is  a  question  exclusively  for  the  courts  of 
that  state  to  decide.' "  Converse  z'.  Ham- 
ilton, 224  U.  S.  243,  56  L.  Ed.  749,  32  S. 
Ct.  415. 

248-26a.  Converse  z:  Hamilton,  224  U. 
S.  243,   56   L.   Ed.  749,  32  S.   C*.  415. 

Under  chapter  272,  Laws  of  Minn,  of 
1899,  and  §§  3184-3190,  Revised  Laws  of 
1905,  the  receiver  is  not  an  ordinary  chan- 
cery receiver  or  arm  of  the  court  appoint- 
ing him,  but  a  quasi  assignee  and  repre- 
sentative of  the  creditors;  and  when  the 
order  levying  the  assessment  is  made  he 
becomes  invested  with  the  creditors' 
rights  of  action  against  the  stockholders, 
and  with  full  authority  to  enforce  the 
same  in  any  court  of  competent  jurisdic- 
tion in  the  state  or  elsewhere.  Converse 
z:  Hamilton,  224  U.  S.  243,  56  L.  Ed.  749, 
32  S.  Ct.  415,  following  Bernheiiner  z'. 
Converse.  206  U.  S.  516,  524,  51  L.  Ed. 
1163,  27  S.  Ct.  755. 

"The  constitutional  validity  of  chapter 
272  has  been  sustained  by  the  supreme 
court  of  the  state,  as  also  by  this  court; 
and  this  because  (1)  the  statute  is  but  a 
reasonable  regulation  of  the  mode  and 
means  of  enforcing  the  double  liability 
assumed  by  those  who  become  stockhold- 
ers in  a  Minnesota  corporation;  (2)  while 
the  order  levying  the  assessment  is  made 
conclusive,  as  against  all  stockholders,  of 
all  matters  relating  to  the  amount  and 
propriety  of  the  assessment  and  the  ne- 
cessity therefor,  one  against  whom  it  is 
sought    to    be    enforced    is    not    precluded 


from  showing  that  he  is  not  a  stock- 
holder, or  is  not  the  holder  of  as  many 
shares  as  is  alleged,  or  has  a  claim  against 
ihe  corporation  which,  in  law  or  equity, 
he  is  entitled  to  set  off  against  the  assess- 
ment, or  has  any  other  defense  personal 
lo  himself,  and  (3)  while  the  order  is 
made  conclusive  as  against  a  stockholder, 
even  although  he  may  not  have  been  a 
party  to  the  suit  in  which  it  was  made, 
and  may  not  have  been  notified  that  an 
assessment  was  contemplated,  this  is  not 
i'.  tenable  objection,  for  the  order  is  not 
in  the  nature  of  a  personal  judgment 
against  the  stockholder,  and  as  to  him  is 
amply  sustained  by  the  presence  in  that 
suit  of  the  corporation,  considering  his 
relation  to  it  and  his  contractual  obliga- 
tion in  respect  of  its  debts.  Straw  &  E. 
Mfg.  Co.  V.  L.  D.  Kilbourne  Boot  &  Shoe 
Co.  supra;  London  &  N.  W.  American 
Mortg.  Co.  V.  St.  Paul  Park  Improv.  Co., 
84  Minn.  144,  86  N.  W.  872;  Bernheimer 
:■.  Converse,  206  U.  S.  516,  51  L.  Ed.  1163, 
27  S.  Ct.  755."  Converse  v.  Hamilton,  224 
U.  S.  243,  56  L.  Ed.  749,  32  S.  Ct.  415. 

"In  Bernheimer  v.  Converse,  206  U.  S. 
516,  51  L.  Ed.  1163,  27  S.  Ct.  755,  the  pres- 
ent reeceiver  sought,  by  reason  of  the 
proceedings  in  the  Minnesota  court  under 
chapter  272,  to  maintain  an  action  in  New 
York  against  a  stockholder  residing  in 
that  state,  to  enforce  one  of  the  assess- 
ments before  mentioned,  and  this  court 
sustained  the  action,  saying  (p.  534) :  'It 
is  objected  that  the  receiver  can  not 
bring  this  action,  and  Booth  v.  Clark,  17 
How.  321,  15  L.  Ed.  164;  Hale  v.  AUinson. 
188  U.  S.  56,  47  L.  Ed.  380,  23  S.  Ct.  244; 
and  Great  Western  Min.,  etc.,  Co.  v.  Har- 
ris, 198  U.  S.  561,  49  L.  Ed.  1163,  25  S.  Ct. 
770,  are  cited  and  relied  upon.  But  in 
each  and  all  of  these  cases  it  was  held 
chat  a  chancery  receiver,  having  no  other 
authority  than  that  which  would  arise 
froni  his  appointment  as  such,  could  not 
maintain  an  action  in  another  jurisdiction. 
In  this  case  the  statute  confers  the  right 
upon  the  receiver,  as  a  quasi  assignee  and 
representative  of  the  creditors,  and  as 
such  vested  with  the  authority  to  main- 
tain an  action.  In  such  case  we  think  the 
receiver  may  sue  in  a  foreign  jurisdiction. 
Relfe  V.  Rundle,  103  U.  S.  222,  226.  26  L. 
Ed.  337;  Howarth  v.  Lombard,  175  Mass. 
570,  49  L.  R.  A.  301,  56  N.  E.  888;  Howarth 
:■.  Angle.  162  N.  Y.  179,  182,  47  L.  R.  A. 
7  25,  26  N.  E.  489.'"  Converse  7^.  Hamil- 
ton, 224  U.  S.  243,  56  L.  Ed.  749,  32  S.  Ct. 
415. 

■'And  in  Converse  z'.  Minnesota  Thresher 
Mfg.  Co..  212  U.  S.  567,  53  L.  Ed.  654,  29 
S.  Ct.  691,  where,  in  a  similar  action,  the 
supreme    court    of    errors    of    Connecticut 


1 1 43 


248 


STOCK  AND  STOCKHOLDERS. 


\'ol.  XL 


fusal  of  the  courts  of  a  foreign  state  to  permit  an  action  by  such  receiver  to 
enforce  such  double  liabiHty  denies  full  faith  and  credit  to  the  laws  and  ju- 
dicial proceedings  in  that  state  upon  which  the  receiver's  title,  authority  and 
ri^ht  to  relief  are  grounded.-''"     The   state  constitution,  statutes   and   decisions 


had  given  judgment  against  the  receiver, 
this  court  reversed  the  judgment  on  the 
authority  of  Bernheimer  v.  Converse, 
supra."  Converse  v.  Hamilton,  224  U.  S. 
243,  56  L.  Ed.  749,  32  S.  Ct.  415. 

248-26b.  Full  faith  and  credit  to 
laws  and  judicial  proceeding  of  receiv- 
er's state. — The  refusal  of  the  Wisconsin 
courts  to  permit  an  action  to  enforce  the 
double  liability  of  the  stockholders  in  an 
insolvent  Alinnesota  corporation  to  be 
maintained  by  the  receiver  of  such  cor- 
poration, who,  by  the  proceedings  in  a 
sequestration  suit  brought  conformably 
to  Minn.  Laws  1899,  chap.  272,  became 
quasi  assignee  and  representative  of  the 
creditors,  and  charged  with  the  enforce- 
ment of  the  stockholders"  liability  in  the 
Minnesota  courts  and  elsewhere,  denies 
the  constitutional  full  faith  and  credit  to 
the  lav\'S  of  ^Minnesota  and  the  judicial 
proceedings  in  that  state  upon  which  the 
receiver's  title,  authority,  and  right  to 
relief  were  grounded,  and  by  which  the 
stockholders,  even  though  not  made  par- 
ties to  the  sequestration  suit,  and  not 
notified  otherwise  than  by  publication  or 
by  mail  of  the  applications  for  the  orders 
levying  the  assessments,  were  bound. 
Converse  v.  Hamilton,  224  U.  S.  243,  56 
L.    Ed.   749,   32    S.   Ct.   415. 

So  when  the  receiver  invoked  the  aid 
of  the  Wisconsin  court  "the  case  pre- 
tended was,  in  substance,  that  of  a  trus- 
tee, clothed  with  adequate  title  for  the 
occasion,  seeking  to  enforce,  for  the 
benefit  of  Tiis  sectuis  que  trustent,  a 
right  of  action,  transitory  in  character, 
against  one  who  was  liable  contractually 
and  severally,  if  at  all.  The  receivers 
right  to  maintain  the  actions  in  that  court 
was  denied  in  the  belief  that  it  turned 
upon  a  question  of  comity  only,  unaf- 
fected by  the  full  faith  and  credit  clause 
of  the  constitution  of  the  United  States, 
and  this  view  of  it  was  regarded  as  sus- 
tained by  the  decision  of  this  court  in 
Finney  v.  Guy,  189  U.  S.  335,  47  L.  Ed. 
839,  28  S.  Ct.  558.  But  that  case  is  ob- 
viously distinguishable  from  those  now 
before  us."  Converse  v.  Hamilton,  224 
U.   S.  243,  56   L.   Ed.   749,   32   S.   Ct.   415. 

"We  perceive  nothing  in  the  decision  in 
that  case,  Finney  v.  Guy,  189  U.  S.  335, 
47  L.  Ed.  839,  28  S.  Ct.  558,  which  makes 
for  the  conclusion  that  when  the  repre- 
sentative character,  title,  and  duties  of  a 
receiver  have  been  established  bj'  pro- 
ceedings in  a  IMinnesota  court  conform- 
ably to  the  altogether  different  provisions 
of  the  later  statute  embodied  in  chapter 
272,  his  right  to  enforce  in  the  courts  of 
another    state    the    assessments    judicially 


levied  in  ^Minnesota  depends  upon  comity, 
unaffected  by  the  full  faith  and  credit 
clause.  Indeed,  the  implication  of  the 
decision  is  to  the  contrary.  We  say  this,, 
first,  because,  had  it  been  thought  that 
the  controlling  question  was  one  of 
comity  onlj%  there  would  have  been  no 
occasion  to  consider  what  effect  was  ac- 
corded in  Minnesota  to  the  earlier  stat- 
ute and  to  the  proceedings  thereunder; 
and,  second,  because  especial  care  was 
taken  to  explain  that  the  case  in  band 
was  not  controlled  by  the  decision  in. 
Hancock  Xat.  Bank  r.  Farnum,  176  U.  S. 
640,  44  L.  Ed.  619,  20  S.  Ct.  506."  Con- 
verse f.  Hamilton,  224  U.  S.  243,  56  L. 
Ed.    749,   32    S.   Ct.   415. 

"Hancock  Nat.  Bank  z\  Farnum,  176  U. 
S.  640,  44  L.  Ed.  619,  20  S.  Ct.  506,  *  '■=  * 
was  an  action  in  a  Rhode  Island  court 
by  a  creditor  of  a  Kansas  corporation 
against  one  of  its  stockholders,  to  en- 
force the  contractual  double  liability  of 
the  latter.  The  creditor  had  recovered 
against  the  corporation  in  a  court  in 
Kansas  a  judgment  which,  according  to 
the  laws  of  that  state,  invested  the  cred- 
itor with  a  cause  of  action  against  the 
stockholder  which  could  be  asserted  in 
any  court  of  competent  jurisdiction.  The 
supreme  court  of  Rhode  Island,  treating 
the  right  to  maintain  the  action  in  that 
state  against  the  stockholder  as  de- 
pendent upon  comity  only,  and  finding 
that  the  right  with  which  the  creditor 
was  invested  under  the  lav/  of  Kanses 
was  unlike  that  conferred  by  the  law  of 
Rhode  Island  in  like  situations,  ruled  that 
the  action  could  not  be  maintained  in 
the  courts  of  that  state.  20  R.  I.  466,  40 
Atl.  341.  But  when  the  case  came  here, 
it  was  held  that  full  faith  and  credit  had 
not  been  given  to  the  Kansas  judgment 
upon  which  the  creditor  relied,  and  the 
judgment  of  the  supreme  court  of  Rhode 
Island  was  accordingly  reversed,  it  being 
said  in  that  connection:  'The  question 
to  be  determined  in  this  case  was  not 
vvdiat  credit  and  effect  are  given  in  an  ac- 
tion against  a  stockholder  in  the  courts 
of  Rhode  Island  to  a  judgment  in  those 
courts  against  the  corporation  of  which 
he  is  a  stockholder,  but  what  credit  and 
effect  are  given  in  the  courts  of  Kansas 
in  a  like  action  to  a  similar  judgment 
there  rendered.  Thus  and  thus  only  can 
the  full  faith  and  credit  prescribed  by  the 
constitution  of  the  United  States  and  the 
act  of  congress  be  secured.' ''  Converse 
■V.  Hamilton,  224  U.  S.  243,  56  L.  Ed.  749, 
32    S.    Ct.    415. 

"True,  the  full  faith  and  credit  clause 
of    the    constitution    is    not    without    well- 


1144 


Vol.  XI.  STREET  RAIUVAYS.  248 

must  be  looked  to  in  order  to  determine  the  effect  given  in  that  state  to  the  laws 
and  judicial  proceedings  therein  looking  to  the  enforcement  of  the  stockhold- 
ers'  statutory  liability.-"''" 

STOCK  GRAZING.— See  ante,  Animals,  p.  27. 

STOCKHOLDERS.— See  ante,  Banks  and  Banking,  p.  184;  Stock  and 
Stock HoLDKRs,  p.  1135. 

STOCKYARDS.— See  the  title  Stockyards,  vol.  11.  p.  251.  and  references 
there  given. 

STONE  LAND.— See  ante,  Punuc  Lands,  p.   1012. 

STOPPAGE  IN  TRANSIT.— See  ante.  Carriers,  p.  216. 

STREAMS.— See  ante.  Boundaries,  p.  206;  Navigable  Waters,  p.  914; 
post,  Waters  and  Watercourses. 


STREET  RAILWAYS. 

I.  Franchise  for  Use  and  Occupation  of  Street,  1145. 
B.  Grant  of  Franchise,  1145. 

4.  Duration  of  Franchise,  1145. 

g.  As  Aft'ecting  the  \'alidity  of  the  Franchise,  1145. 
6.  Construction  of  Grant.  1146. 

IV.  Control  and  Regulation,  1146. 

A.   Power  to  Control  and  Regulate,  1146. 

D.  Regulation  of  Time  of  Running  Cars.  1146. 

VI.  Injuries  and  Liability  Therefor,   1146. 

VII.  Rights  Acquired  by  Contract,  1147. 

CROSS  REFERENCES. 
See  the  title  Street  Railways,  vol.  11,  p.  2^2,  and  references  there  given. 
In  addition,  see  ante,  Courts,  p.  398. 

I.  Franchise  for  Use  and  Occupation  of  Street. 
B.    Grant  of  Franchise — 1-.    Duration  of  Franchise — g.    As  Affecting  the 
J'alidity    of  the    Franchise.^A    municipal  ordinance    granting  a  franchise    to  a 

recognized  exceptions,  as  is  pointed  out  corporations  of  its  creation,  and  the 
in  Huntington  z\  Attrill,  146  U.  S.  657,  mode  and  means  of  enforcing  them,  is 
36  L.  Ed.  1123.  13  S.  Ct.  224;  Andrews  z\  apart  from  the  question  under  considera- 
Andrews,  188  U.  S.  14,  47  L.  Ed.  366,  23  tion."  Converse  v.  Hamilton,  224  U.  S. 
S.  Ct.  237,  and  National  Exch.  Bank  z:  243.  .56  L.  Ed.  749,  32  S.  Ct.  415. 
Wiley,  195  U.  S.  257,  49  L.  Ed.  184,  25  "Besides,  it  is  not  questioned  that  the 
S.  Ct.  70;  but  the  laws  and  proceedings  Wisconsin  court  in  which  the  receiver 
reHed  upon  here  come  within  the  gen-  sought  to  enforce  the  causes  of  action 
eral  rule  which  that  clause  estabHshes,  with  which  he  had  become  invested  un- 
and  not  within  any  exception.  Thus,  the  der  the  laws  and  proceedings  relied  upon 
liability  to  which  thej'  relate  is  contrac-  was  possessed  of  jurisdiction  which  was 
tual,  not  penal.  The  proceedings  were  fully  adequate  to  the  occasion.  His  right 
had  with  adequate  jurisdiction  to  make  to  resort  to  that  court  was  not  denied  by 
them  binding  upon  the  stockholders  in  reason  of  any  jurisdictional  impediment, 
the  particulars  before  named.  The  sub-  but  because  the  supreme  court  of  the 
ject  to  which  chapter  272  is  addressed  is  state  v.'as  of  the  opinion  that,  as  to  such 
peculiarly  within  the  regulatory  power  cause  of  action,  the  courts  of  that  state 
of  the  state  of  ^linnesota:  so  much  so  "could,  if  they  chose,  close  their  doors 
that  no  other  state  properly  can  be  said  and  refuse  to  entertain  the  same.'  "  Con- 
to  have  any  public  policy  thereon.  And  verse  f.  Hamilton.  224  U.  S.  243.  56  L.' 
what  the  law  of  Wisconsin  may  be  re-  Ed.  749.  32  S.  Ct.  415. 
specting  the  relative  rights  and  obliga-  248-26c.  Converse  z:  Hamihon.  224  U. 
tions    of    creditors    and    stockholders     of  S.  243.   56   L.   Ed.   749.   32   S.   Ct.   415. 

1145 


2  55-2  58  STREET  RAILWAYS.  \o\.  XI. 

street  railway  company  is  not  invalid  because  the  term  of  such  franch.ise  may 
extend  beyond  the  limit  of  the  corporate  life  of  such  company. ^•'''' 

6.  Construction  of  Grant. — A  street  railway  company  whose  charter  sub- 
jects it  to  "all  the  duties,  liabilities,  and  restrictions  set  forth  in  all  general  laws 
now  or  hereafter  in  force  relating  to  street  railway  companies,"  is  bound  by  the 
requirement  of  a  statute  previously  enacted,  that  street  railway  companies  shall 
transport  school  children  at  a  reduced  rate,  although  such  statute  may  be  uncon- 
stitutional as  to  already  existing  corporations.^''' 

Charter — Ordinance  Granting  Terms. — Where  an  ordinance  provided 
that  the  right  and  privilege  to  construct  and  operate  a  railway  line  subject  to  the 
terms,  conditions  and  forfeitures  named  in  the  ordinance  is  granted  to  a  street 
railway  company  "during  the  term  of  its  charter,"  the  charter  referred  to  in  the 
ordinance  could  not  have  been  anything  else  than  the  certificate  of  the  corpora- 
tion required  by  law.  Of  this  the  state  was  bound  to  take  notice;  and  when  it 
granted  the  privileges  "during  the  term  of  its  charter,"  it  could  have  meant 
nothing  less  than  during  the  period  named  in  the  charter.-''' 

IV.  Control  and  Regulation. 

A.  Power  to  Control  and  Regulate. — The  business  conducted  by  a  street 
railway  company  is  of  that  class  so  affected  by  a  public  interest  that  it  is  subject, 
within  constitutional  limits,  to  the  governmental  power  of  regulation.^"''  This 
power  is  legislative  in  its  character,  and  may  be  exercised  directly  by  the  legis- 
lature itself.  But  the  legislature  may  delegate  to  an  administrative  body  the 
execution  in  detail  of  the  legislative  power  of  regulation.^"'' 

D.  Regulation  of  Time  of  Running  Cars. — The  power  of  regulating  the 
business  of  a  street  railway  company  may  be  exercised  to  control  the  time  of  the 
running  of  cars.^'^*'  But  this  power  is  legislative  in  its  character  and  can  not  be 
exercised  by  the  courts,  where  the  legislature  has  not  delegated  it  to  them.^*"' 

VI.  Injuries  and  Liability  Therefor. 

Whether  it  is  negligence  to  run  a  street  car  at  full  speed  past  a  usual  stopping 
place  when  persons  can  plainly  be  seen  standing  upon  the  platform  between  the 
inner  rails,  awaiting  a  car  approaching  from  the  opposite  direction,  is  a  question 
for  the  jury,  where  the  street  car  company  had  sanctioned  such  a  practice  on  the 
part  of  intending  passengers,  and  the  space  between  the  rails,  while  wide  enough 
to  enable  a  person  standing  in  the  center  to  escape  injury,  left  but  a  narrow  mar- 

255-15a.     Term    of    franchise    extending  CONSTITUTIONAL    LAW,    p.    264. 

beyond  corporate  life  of  company. — Min-  258-36a.    Regulation  of  time  of  running 

neapolis    z\    JNIinneapolis    St.    R.    Co.,    215  cars. — Honoluhi,    etc..    Land    Co.    c'.     Ha- 

U.    S.    417,    54    L.    Ed.    259,    30    S.    Ct.    118,  wail,    211    U.    S.    282,    53    L.    Ed.    186,    29    S. 

modifying   155    Fed.    Rep.    989.  Ct.   55. 

257-27a.    Company  bound    by     require-  258-36b.     Exercise    by     courts. — Hono- 

ment  of  a  statute    previously    enacted. —  lulu,   etc..   Land  Co.  v.   Hawaii,  211  U.   S. 

Interstate,    etc.,    St.    R.     Co.      v.      Massa-  282,   53   L.    Ed.    186,   29   S.   Ct.   55. 

chusetts,   207   U.   S.   79,   52   L.    Ed.   Ill,   28  The  enforcement  of  the  continuance  by 

S.    Ct.   26,   affirming  187   Mass.   436,  "73   N.  an  Hawaiian  street  railway  company  of  a 

E.   530.  ten    minute    schedule    on    certain    of    its 

257-27b.   Charter — Ordinance   construed.  lines,    upon    the    ground    that    the    public 

— Minneapolis   v.    Minneapolis   St.   R.   Co..  convenience   demands   such   a   schedule,   is 

215  U.  S.  417,  54  L.  Ed.  259.  30  S.  Ct.  118.  not  within  the  limits  of  the  judicial  power, 

257-30a.    Subject  to  governmental  power  and    is    totally     inconsistent      with      the 

of    regulation. — Honolulu,    etc..    Land    Co.  power  to  regulate  the  m.anagement  of  the 

V.    Hawaii,   211    U.    S.   282,   53    L.    Ed.    186,  street    railway    in    this    respect,    which    is 

29   S.   Ct.   55.  ultimately    vested    by    Haw.    Rev.    Laws, 

257-30b.    Power   of   regulation   is   legis-  §  843,  and  Session  Laws  1905,  act  No.  78, 

lative   but   may   be   delegated. — Honolulu,  hi    the    executive    authorities.      Honolulu, 

etc..    Land   Co.   v.    Hawaii,   211   U.    S.   282,  etc..    Land   Co.   v.   Hawaii,   2J1    U.   S.   282, 

53    L.    Ed.    186,    29    S.    Ct.    55.      See    ante,  53  L.  Ed.  186,  29  S.  Ct.  55. 

1146 


Vol.  XL  STREET  RAILU  AYS.  258 

gin  of  safety.^ I''  A  person  is  not,  as  a  matter  of  law,  guilty  of  such  contributory 
negligence  in  following  the  customary  practice  sanctioned  by  a  street  car  com- 
pany of  standing  upon  the  platform  between  the  two  inner  rails  at  a  usual  stop- 
ping place,  awaiting  an  approaching  car,  as  precludes  a  recovery  for  injuries  3us- 
tained  from  being  struck  by  a  car  which  ran  by  this  stopping  place  on  the  other 
track  at  full  speed,  where  the  space  between  the  rails,  though  leaving  but  a  nar- 
row margin  of  safety,  was  wide  enough  to  permit  a  person  standing  directly  in 
the  center  to  escape  injury.^ ^'' 

VII.  Rights  Acquired  by  Contract. 

The  contract  right  of  a  street  railway  company  to  charge  the  rate  of  fare  per- 
mitted by  a  municipal  ordinance  vests  in  such  company,  secure  against  impairment 
by  subsequent  legislation,  when  ratified  by  a  valid  legislative  act,  notwith- 
standing the  want  of  power  of  the  city  to  adopt  the  ordinance.^ ^"^  Existing  con- 
tract rights  of  a  street  railway  company  to  charge  five-cent  fares,  secured  against 
impairment  by  subsequent  legislation,  were  not  abandoned  by  accepting  an  ordi- 
nance authorizing  a  change  of  motive  power  from  horse  power  to  electricity, 
although  the  original  franchise  named  only  animal  or  pneumatic  power,  where 
it  also  provided  that  no  propelling  power  should  be  used  after  it  should  be  proved 
a  public  nuisance,  and  that  the  company  might  connect  with  other  street  railways 
upon  which  power  was  used  similar  to  that  authorized  to  be  used  by  street  rail- 
ways by  the  city  council,  but  that  steam  power  cars,  such  as  were  in  common  use, 
should  not  be  used  upon  the  city  tracks  unless  specially  authorized.^  ^"^  The  ac- 
ceptance of  a  municipal  ordinance  requiring  a  street  railway  company  to  issue 
transfers  does  not  abrogate  an  existing  contract  right  secured  against  impairment 
by  subsequent  legislation  to  charge  a  five-cent  fare  for  one  continuous  passage  not 
exceeding  three  miles  in  length.^ ^"^  An  inviolable  contract  between  a  munici- 
pality and  street  railway  companies  which  will  prevent  the  exaction  of  a  license 
tax  under  an  acknowledged  power  of  the  municipality  is  not  created  by  ordi- 
nances passed  in  the  exercise  of  authority  to  grant  the  use  of  the  streets,  under 
which  the  companies  have  agreed  to  pay  certain  sums  for  the  use  of  such  streets 
for  a  given  period,  where  such  ordinances  do  not  expressly  relinquish  the  right 
to  exact  license  fees  or  taxes.^^^ 

258-41a.     Negligence — Question    for    the  to  be  for  that  term,  and  has  continued  to 

jury. — Chunn    v.    City,    etc.,    Railway,    207  act  as   a  corporation   since   the   expiration 

U.   S.  302,   52   L.   Ed.   219,   28   S.   Ct.   6.3.  of   the   30   years    which    would   have    been 

258-41b.     Facts    not    constituting    con-  its    corporate    hfe,    if    ori^anized.    as    the 

tributory  negligence  as  a  matter  of  law.  municipality    contends     it      should      have 

— Chunn    v.    City,    etc.,    Railway,    207    U.  been,   under  title   2   of  such   chapter.    De- 

S.   302,   .'52   L.   Ed.   219,  28   S.   Ct.   63.      See  cree,    Minneapolis   St.   Rv.   Co.   v.   City   of 

ante.   NEGLIGENCE,  p.   920.  Minneapolis    (Minn.    1907),    155     F.      989, 

258-41C.    Contract  right  to   charge  rate  modified      Minneapolis  v.  Minneapolis  St. 

of  fare  permitted  by  municipal  ordinance.  R.    Co.,   215   U.   S.  417,   54   L.   Ed.   259,  30 

— Minneapolis   f.    Minneapolis   St.    R.    Co.,  S.   Ct.   118. 

215  U.  S.  417,  54  L.  Ed.  259,  30  S.  Ct.  118.  258-41d.     Acceptance    of     ordinance.— 

The   contract   right   of   a   street   railway  Minneapolis    v.    Minneapolis    St.    R.    Co., 

company      to      charge       five-cent       fares,  glS  U.  S.  417,  54  L.  E<1.  259,  30  S.  Ct.  118. 

secured    against    impairment    "during    the  „cq  ...^     ,4-.  ,•     „,    T.r; ^  ..^1;^  e* 

r    •?       1       ,     f,    1                     ■   •      I  258-41e.    Minneapohs  v.   Minneapolis  bt. 

term    of   its   charter      by   a   municipal    or-  t>     n        mr   tt     c  ^i~     kit      -ca    okh    on 

J-                      4.-C     1    u        A    1    -\r-            i\r        u     <  R.    Co.,    215    U.    b.    41/,    54    L,.    Ed.    259,    30 

dinance    ratified   by   Act    Minn.    March    4,  ^^    ^.    '  .„           ,.,  .       '   _,   t^^,    t>„_    '  _„ 

1879    (Sp.   Laws   1879,   p.   410,   c.   299),   ex-  ^-   ^t-    118,   modifying   155   Fed.    Rep.   989. 

tends    for    50    years,    where    the    companv  258-41f.     Ordmances    not     creatmg     m- 

undertook    to    organize    for    that    period.  violable    contract   preventing    exaction   of 

under   Gen.   St.   Minn.    1866,   c.   34,   tits.    1,  a  license  tax.— St.  Louis  v.  United  R.  Co.. 

2.   §§   1-53.   and  in   its   certificate   of  incor-  ^10   U.    S.   266,   52    L.    Ed.    1054.   28   S.    Ct. 

poration  stated  that  its  corporate  life  was  '"''^O. 

1  147 


278-279  SUBROGATION.  Vol.  XI. 

STREETS  AND  HIGHWAYS.— See  the  title  Streets  and  Highways,  vol. 

II,  p.  259,  and  references  there  given.  And  as  to  the  right  to  use  the  streets 
of  a  municipality  for  telephone  purposes,  see  post,  Telegraphs  and  Tele- 
phones. 

STRIKING  OUT  EVIDENCE.— See  ante.  Evidence,  p.  558. 

SUBLETTING.— See  ante,  Landlord  and  Tenant,  p.  820. 

SUBMISSION  OF  CONTROVERSY.— See  ante.  Agreed  Case,  p.  17. 

SUBMISSION  TO  ARBITRATION.— See  ante.  Arbitration  and  Award, 
p.  148. 

SUBORNATION  OF  PERJURY.— See  ante,  Perjury,  p.  948;  Public 
Lands,  p.   1012. 

SUBPOENA. — See  post.  Summons  and  Process;  Witnesses. 

SUBPCENA  DUCES  TECUM.— See  ante.  Production  oe  Documents,  p 
1008. 

SUBROGATION. 

III.  Subrogation  of  Person  Paying  Debt  Due  Third  Party,  1148. 

A.  In  General.  1148. 

B.  Sureties,  Guarantors,  Insurers,  Bail,  etc.,   1148. 

CROSS   REFERENCES. 

See  the  title  Subrogation,  vol.  11,  p.  276,  and  references  there  given. 

III.  Subrogation  of  Person  Paying  Debt  Due  Third  Party. 

A.  In  General. — See  note  10. 

B.  Sureties,  Guarantors,  Insurers,  Bail,  etc. — Priority  as  to  Assign- 
ment of  Surety  on  Government  Contract. — The  right  of  a  surety  for  a 
government  contractor  to  be  subrogated  to  the  contractor's  right  to  the  reserve 
fund  in  the  hands  of  the  government,  representing  work  done  prior  to  an  assign- 
ment of  the  contract, ^^"^  and  to  sums  due  from  the  government  under  the  con- 
tract,^-'' is  superior  to  rights  of  assignees. 

278-10.  Volunteer. — Henningsen  v.  cock  an<l  the  Prairie  Bank  it  was  held  that 
United  States  Fidelity,  etc.,  Co.,  208  U.  Hitchcock  had  the  superior  equity,  and 
S.  404,  52  L.  Ed.  547,  28  vS.  Ct.  389.  the  judgment  of  the  court  of  claims  in 
279-12a.  Hardawav  v.  National  Surety  his  favor  for  the  amount  still  due  from 
Co.,  211  U.  S.  552,  "53  L.  Ed.  321,  29  S.  the  government  v/as  affirmed.  The  bank 
Ct.  202,  affirming  150  P'ed.  465,  80  C.  C.  loaned  to  Sundberg  &  Company  about 
A.  283,  and  following  Prairie  State  Bank  $6,000  prior  to  the  time  that  they  de- 
V.  United  States,  164  U.  S.  227,  41  L.  Ed.  faulted  in  the  performance  of  their  con- 
412,  17  S.  Ct.  142.  tract,  and  prior  to  any  action  by  Hitch- 
In  Prairie  State  Bank  zk  United  States,  cock  in  coiupleting  the  contract  or  in 
164  U.  S.  227,  41  L.  Ed.  412,  17  S.  Ct.  142,  paying  out  money,  so  that  the  bank  ac- 
"Sundberg  &  Company,  in  1888,  contracted  tually  parted  with  $6,000  of  its  money 
with  the  government  to  build  a  custom-  l)efore  Hitchcock  parted  with  any  of  his. 
house  at  Galveston.  Hitchcock  was  It  was  held  that  Hitchcock's  ecjuity  coni- 
surety  on  that  contract.  On  February  3,  menced  with  his  obligation  in  1888  to  see 
1890,  in  consideration  of  advances  made  that  Sundberg  &  Company  duly  per- 
and  to  l)e  made  by  the  Prairie  Bank,  formed  their  contract  with  the  govern- 
Sundbcrg  &  Company  gave  a  power  of  at-  ment.  Henningsen  v.  United  States  Fi- 
torney  to  a  representative  of  the  bank  to  delity,  etc.,  Co.,  208  U.  S.  404,  52  L.  Ed. 
receive    from    the   United   States   the    final  547,  28   S.  Ct.  389. 

payment  under  the  contract.  In  May,  279-12b.  The  surety  on  the  bond  of  a 
1890,  Sundberg  &  Company  defaulted  in  public  contractor,  conditioned,  in  com- 
the  performance  of  this  contract  and  pliance  with  the  Act  Aug.  13,  1894.  c.  280, 
Hitchcock,  as  surety,  without  any  knowl-  28  Stat.  278  (U.  S.  Comp.  St.  1901,  p. 
edge  of  the  alleged  rights  of  the  bank,  as-  2523),  for  the  faithful  performance  of 
sumed  the  completion  of  the  contract  the  contract,  and  the  prompt  and  full 
and  disbursed  therein  about  $15,000  in  payment  of  laborers  and  materialmen, 
excess  of  the  current  payments  from  the  has  an  equity,  under  the  doctrine  of  sub- 
government.     In  a  contest  between  Hitch-  rogation,   in   the   sums   due   from   the   go^- 

1148 


Vol.  XL  SUCX^BSSIOX  TAXES.  292-293 

SUBSTITUTION.— See  ante.  Patents,  p.  936. 
SUCCESSION.— See   ante.  Descent  and  Distribution,  p.  463. 


SUCCESSION  TAXES. 

II.  Constitutionality,  Nature  and  Power  to  Impose,  1149. 
III.  Power  to  Impose  Tax  upon  Particular  Property,  1149. 
X.  Refunding  Tax,    1149. 

CROSS   REFERENCES. 

See  the  title  Succession  Taxes,  vol.  11,  p.  288,  and  references  there  given. 

In  addition,  see  ante.  Appeal  and  Error,  p.  34;  Constitutional  Law.  p.  264; 
Courts,  p.  398. 

As  to  whether  a  state  statute  subjecting  to  an  inheritance  tax  the  rights  of  a 
surviving  wife  in  the  community  property  violates  the  contract  clause  of  the  fed- 
eral constitution,  see  ante,  Impairment  of  Obligation  of  Contracts,  p.  624. 
As  to  the  effect  of  a  saving  clause  in  a  repealing  act  preserving  all  taxes  imposed 
prior  to  the  taking  effect  of  the  act.  see  ante.  Statute,  p.  1122. 

II.  Constitutionality,  Nature  and  Power  to  Impose. 

A  state  law  authorizing  the  imposition  of  a  tax  when  property  is  transferred 

by  deed,  intended  to  take  effect  upon  the  death  of  the  grantor,  is  not  unconsti- 
tutional, ^^a 

III.  Power  to  Impose  Tax  upon  Particular  Property. 

Transfer  Tax — Personal  Property  in  Another  State  at  Time  of  Grant- 
or's Death. — A  transfer  tax.  when  personal  property  is  transferred  by  a  res- 
ident of  the  state  by  deed  intended  to  take  eiject  at  his  death,  may  validly  be  im- 
posed, although,  at  the  time  of  the  grantor's  death,  when  the  payment  of  the  tax 
is  required,  the  property  is  in  another  state,  in  the  hands  of  a  trustee  holding  the 
title  and  possession  by  virtue  of  such  deed.^^"" 

X.  Refunding-  Tax. 

The  Act  of  June  27,  1902,  provides  for  refunding  so  much  of  a  succession  tax, 
paid  on  the  value  of  a,  legacy  under  the  War  Revenue  Act  of  June  13,  1898,  ch. 
448,  as  may  have  been  collected  on  contingent  beneficiary  interests  which  shall  not 

ernment  under  the  contract,  which  is  su-  .5itna  Life  Ins.  Co.  f.  Middleport,  124  U. 
perior  to  the  claim  of  a  bank  under  an  S.  534,  31  L.  Ed.  537,  8  S.  Ct.  625;  Shel- 
assignment  from  the  contracter  to  secure  don,  Subrogation,  §  240.  See,  also, 
the  repayment  of  money  leaned,  to  be  United  States  Fidelity,  etc.,  Co.  z'.  United 
used  as  he  saw  fit,  either  in  the  perform-  States,  204  U.  S.  349,  357,  51  L.  Ed.  516, 
ance  of  his  building  contract  or  in  any  27  S.  Ct.  381."  Henningsen  z'.  United 
other  way.  Judgment  (1906).  14::'  F.  810,  States  Fidelity,  etc.,  Co.,  208  U.  S.  404, 
74  C.  C.  A.  484,  affirmed.  Henningsen  z:  52  L.  Ed.  547,  28  S.  Ct.  389. 
United  States  Fidelity,  etc.,  Co.,  208  U.  292-12a.  Property  transferred  by  deed 
S.  404.  52  L.  Ed.  547.'  28  S.  Ct.  3S9.  See  to  take  effect  upon  grantor's  death. — 
the  title,  WORKING  CONTRACTS.  Keeney  ;•.  Comptroller.  222  U.  S.  525,  56 
"Whatever  equity,  if  any,  the  bar.k  had  L.  Ed.  299,  32  S.  Ct.  105,  affirming  194 
to  the  fund  in  question,  arosf"  solely  by  N.  Y.  281,  87  N.  E.  428,  so  holding  as  to 
reason  of  the  loans  it  made  to  Henning-  Laws  N.  Y.  1896,  c.  908.  See  ante.  CON- 
sen.  Henningsen's  surety  was,  upon  STITL^TIONAL  LAW,  p.  264. 
elementary  principles,  entitled  to  assert  2S3-18a.  Transfer  tax— Personal  prop- 
Ihe  equitable  doctrine  of  subrogation.  l)ut  erty  in  another  state  at  time  of  grantor's 
it  is  equally  clear  ihrit  the  bnnk  was  n^t,  death. — Keeney  z\  Comptroller.  222  U.  S. 
for  it  was  a  mere  volunteer,  and  under  525.  56  L.  Ed.  299,  32  S.  Ct.  105,  affirm- 
no  legal  obligation  to  loan  its  money.  ing  194  N.  Y.  281,  87  N.  E.  428,  so  hold- 
Prairie  State  Bank  v.  United  States,  164  ing  as  to  the  New  York  Statute,  Law  N. 
U.    S.    227,    41    L.    Ed.    412,    17    S.    Ct.    142;  Y.  1896,  c.  90S. 

1149 


297-298 


SUMMARY  SEIZURE. 


Vol.  XL 


have  become  vested  prior  to  the  first  of  July,  1902.^^^  The  words  "which  shall 
not  have  become  vested,"  as  used  in  the  above  statute,  mean  the  same  as  "abso- 
lutely vested  in  possession  or  enjoinment,"  as  used  in  a  later  clause  ending  the 
tax  on  contingent  interests  unless  so  vested  before  July  1,  1902. ^s*^  It  is  held 
that  a  vested  life  estate  in  a  fund,  changing  in  investment  at  the  discretion  of  the 
trustee,  but  retaining  an  equitable  identity  is  not  a  contingent  beneficiary  interest 
within  the  meaning  of  the  succession  tax  acts.^^'' 

SUED.— See  note  2. 

SUICIDE.— See  ante.  Insurance,  p.  674. 

SUIT. — See  ante,  Actions,  p.  7.     And  see  ante,  Equity,  p.  550. 

SUITS  AGAINST  UNITED  STATES.— See  post,  United  Status.  And 
see  ante,  Courts,  p.  398. 

SUITS  FOR  ACCOUNTING.— See  ante.  Accounts  and  Accounting,  p.  6; 
Laches,  p.  818. 

SUMMARY  PROCEEDING.— See  references  ante,  under  AIotions  and 
Summary  Proceedings,  p.  893. 

SUMMARY  SEIZURE.— See  ante.  Due  Process  of  Law,  p.  475;  Heaeth,. 
p.  617;    Police  Power,  p.  955. 


297-38a.  Refunding  succession  tax  on 
contingent  beneficiary  interests. — United 
States  r.  Fidelity  Trust  Co.,  222  U.  S. 
158,  56   L.   Ed.  137,  32  S.   Ct.  59. 

297-38b.  United  States  v.  Fidelity 
Trust  Co.,  222  U.  S.  158,  56  L.  Ed.  137. 
32  vS.  Ct.  59,  citino-  Vanderhilt  t'.  Eidman, 
196   U.    S.    480,   49    L.    Ed.    563. 

297-38C.  The  entire  clear  value  of  a  leg- 
acy under  a  will  devising  the  residuary 
estate  in  trust  to  pay  over  to  the  tes- 
tator's niece  the  net  income  in  quarterly 
payments  for  life,  and  not  merely  so 
much  of  such  life  estate  as  she  had  ac- 
tnall}^  received  before  Tulv  1.  1902,  had 
"vested"  prior  to  that  date,  in  the  sense 
of  the  provision  of  Act  June  27,  1902,  c. 
1160,  §  3,  32  Stat.  406  (U.  S.  Comp.  St. 
Supp.  1909,  p.  879),  for  the  refunding  of 
so  much  of  the  succession  tax  as  may 
have  been  collected  on  "contingent  bene- 
ficial interests  which  shall  not  have  be- 
come vested"'  before  the  date  mentioned. 
United  States  z\  Fidelity  Trust  Co.,  222 
U.  S.  158,  56  L.  Ed.  137,  32  S.  Ct.  59,  re- 
versing decree.  Fidelity  Trust  Co.  v. 
United   States.   45    Ct.    CI.   362. 


298-2.  Sued  for  and  recovered. — Sec- 
lion  89  of  the  Act  of  March  2,  1799,  enti- 
tled "An  Act  to  regulate  the  collection 
of  duties  on  imports  and  tonnage,"  di- 
rects all  penalties,  accruing  by  any 
breach  of  the  act,  to  be  sued  for  and  re- 
covered, with  costs  of  suit,  in  the  name 
of  the  United  States  of  America,  in  any 
court  competent  to  try  the  same;  and  the 
collector,  within  whose  district  a  forfei- 
ture shall  have  been  incurred,  is  enjoined 
to  cause  suits  for  the  same  to  be  com- 
menced without  delay.  This  manifestly 
contemplates  civil  actions,  as  dees  the 
proviso  to  the  same  section,  which  de- 
clares that  no  action  or  prosecution  shall 
lie  maintained  in  any  case  under  the  act,, 
unless  the  same  shall  have  been  com- 
menced within  three  years  after  the  pen- 
ality or  forfeiture  was  incurred.  The  ex- 
pression, "sued  for  and  recovered"  is 
primarily  applicable  to  civil  actions,  and 
not  to  those  of  a  criminal  nature.  Hep- 
ner  r.  United  States,  213  U.  3.  103,  106,  53- 
L.  Ed.  720,  29  S.  Ct.  474.  See  ante,  REV- 
ENUE LAWS,  p.  1071. 


]  1 50 


^^ol.  XI.  SUMMOXS  AXD  PROCESS.  306-308 


SUMMONS  AND  PROCESS. 
V.  Service  of  Process,  1151. 

B.  Manner  of  Service,  1151. 

2.  Substituted  Service,  1151. 

b.  Service  by  Posting  Copy,  1151. 

D.  Palace  of  Service,  1151. 

1.  Service  Out  of  State.  1151. 

3.  Service  on  Parties  Decoyed  into  the  State,  1151. 
F.  Service  on  Corporations,  1152. 

1.  Foreign  Corporations,  1152. 

c.  Must  Be  "Doing  Business  in  the  State,"   1152. 

d.  On  Whom  Served.  1152. 

(1)  In   General.    1152. 

(2)  Designation  of  Agent  to  Receive  Service.  1153. 

(3)  Particular  Persons  on  Whom  Process  Mav  Be  Served, 

1153. 

cc.  Local  Agents,   1153. 

ee.   Insurance  Adjusters,   1153. 

VII.  Return,  1154. 

E.  Effect  and  Conclusiveness.  1154. 

CROSS  REFERENCES. 

See  the  title  Summons  and  Process,  vol.  11,  p.  299.  and  references  there  given. 

In  addition,  see  ante.  Admiralty,  p.  10;  Appeal  and  Error,  p.  34;  Attach- 
ment AND  Garnishment,  p.  156;  Constitutional  Law,  p.  264;  Courts,  p. 
398;  Executors  and  Administr.\tors,  p.  564;  Foreign  Iut)gments,  Records 
AND  Judicial  Proceedings,  p.  592;  Public  Officers,  p.  1035;  post.  \'enue; 
Wills. 

As  to  the  sufficiency  of  the  process  to  protect  officers  acting  thereunder,  see 
ante,  Public  Officers,  p.  1035.  As  to  constitutional  objections  to  the  sufficiency 
of  summons  and  service  of  process,  see  ante.  Due  Process  of  Law,  p.  475.  As 
to  notice  in  tax  proceedings,  see  post.  Taxation. 

V.  Service  of  Process. 
B.     Manner  of  Service — 2.    Substituted   Service — b.    Service  by  Posting 
Copy. — See  note  27. 
D.    Place  of  Service — 1.    Service  Out  of  State. — See  note  29. 
3.    Service  on  Parties  Decoyed  into  the  State. — See  notes  31,  32. 

306-27.    Usual  place   of   abode. — Service  Section    1,    chap.    170,    ^lass.    Rev.    Laws 

of  the  process  of  the  United  States  pro-  1902.     Brown  <•.  Fletcher,  210  U.  S.  82,  52 

visional  court  for  Porto  Rico  by  deliver-  L.  Ed.  966.  2S  S.  Ct.  702. 
ing    tlie    summons    at    the    u?ual    place    of  308-31.    Service  on  parties  decoyed  into 

defendant's   abode,   into   the  hands   of  his  state  will  be  set  aside. — It  is  undoubtedly 

wife,    is    sufficient,    such    service    being    in  true  that  if  a  person  is  induced  by  artifice 

strict   accordance   with    the   procedure   es-  or   fiaud   to   come   within   the   jtirisdiction 

lablished  by  that  court.     Santiago  :■.   X'o-  of  the  court  for  the  purpose  of  procuring 

gueras.   214   U.    S.   260,   53    L.    Ed.   089,    29  service  of  process,   such   fraudulent   abuse 

S.   Ct.   608.  of  the  writ  will  be  set  aside  upon  proper 

306-29.     Process    can    not    run    out    of  showing.      Commercial   Mut.   Acci.    Co.   r. 

state. — It    is    elementary    that    service    of  Davis,  213  U.   S.  245,  53  L.  Ed.  782.  29  S. 

process  outside   of  the  limits  of  the   state  Ct.  445.  following  Fitzgerald,  etc.,  Constr. 

is    not    operative     to      bring      the      party  Co.  i'.   Fitzgerald.   LT7   U.   S.  98.  34   L.   Ed. 

.<^erved    within    the    jurisdiction     of      the  608.   11   S.   Ct.  36. 

court  ordering  the  process.     Such  also  is  308-32.     Where    a    foreign    corporation 

the   statutory  provision  in  Massachusetts.'  engaged    in    accident    insurance    1  usiness 

1151 


309-312 


SUMMONS  AND  PROCESS. 


Vol.  XL 


F.  Service  on  Corporations — 1.  Foreign  Corporations — c.  Must  Be 
"Doing  Business  in  the  State."— See  note  38.  The  cases  have  not  defined  the 
extent  of  the  business  necessary  to  the  presence  of  a  foreign  corporation  in  the 
state  for  the  purpose  of  a  vahd  service;  it  is  sufficient  if  it  is  doing  business 
therein. ^''^'^ 

d.    On  Whom  Served— {\)  In  General.— See  note  42. 


had  refused  payment  of  the  death  claim 
on  the  ground  that  it  had  been  re- 
fused permission  to  examine  the  body 
of  the  deceased,  and  the  beneficiary  then 
wrote  offering  to  allow  the  body  to  be 
examined  and  asking  that  the  doctor 
sent  for  this  purpose  be  given  power  to 
settle  the  claim  if  he  found  everything 
alright,  or  power  to  compromise  the 
claim  in  lieu  of  an  examination,  and  a 
doctor  with  such  power  was  sent,  and 
while  the  parties  were  negotiating  the 
doctor  was  served  with  process  as  agent 
of  the  corporation  upon  a  petition  which 
had  been  prepared  before  his  arrival, 
held,  where  the  lower  court  found  that 
the  service  of  process  was  not  induced 
by  fraud  or  artifice,  that  this  finding  was 
not  such  plain  error  as  to  necessitate  its 
being  set  aside  by  the  federal  supreme 
court.  Commercial  Mut.  Acci.  Co.  v. 
Davis,  213  U.  S.  345,  53  L.  Ed.  782,  29  S. 
Ct.    445. 

As  to  review,  by  the  federal  supreme 
court,  of  the  finding  of  fact  by  the  lower 
court  that  the  service  of  process  was  not 
induced  by  fraud  or  artifice,  see  ante, 
APPEAL  AND  ERROR,  p.  34. 

309-38.  Corporation  must  be  doing  busi- 
ness in  state. — It  has  frequently  been 
held  by  the  federal  supreme  court  that  a 
foreign  corporation,  in  order  to  be  sub- 
ject to  the  jurisdiction  of  a  court,  must 
be  doing  business  within  the  state  of  the 
court's  jurisdiction,  and  service  must 
there  be  made  upon  some  duly  authorized 
ofticer  or  agent.  Herndon-Carter  Co.  v. 
Norris  Son  &  Co.,  224  U.  S.  496,  56  L. 
Ed.  857,  32  S.  Ct.  550,  citing  St.  Clair  v. 
Cox,  106  U.  S.  350,  27  L.  Ed.  222,  1  S.  Ct. 
354;  Goldey  v.  Morning  News,  156  U. 
S.  518,  39  L.  Ed.  517,  15  S.  Ct.  559;  Peter- 
son v.  Chicago,  etc.,  R.  Co.,  205  U.  S.  364, 
51   L.   Ed.   841,  27   S.   Ct.  513. 

"That  it  is  essential,  in  order  to  obtain 
jurisdiction  over  a  foreign  corporation 
having  neither  property  nor  agent  in  the 
state,  that  it  be  doing  business  in  the 
stale,  is  settled  by  numerous  decisions  of 
this  court."  Commercial  Mut.  Acci.  Co. 
^^  Davis,  213  U.  S.  245,  53  L.  Ed.  782,  29 
S.  Ct.  445,  citing  St.  Clair  v.  Cox,  106  U. 
S.  350,  27  L.  Ed.  222,  1  S.  Ct.  354;  Goldey 
7'  Morning  News.  156  U.  S.  518,  39  L. 
Ed.  517,  15  S.  Ct.  559;  Barrow  Steamship 
Co.  v.  Kane,  170  U.  S.  100,  42  L.  Ed.  964. 
18  S.  Ct.  526;  Connecticut  Mut.  Life  Ins. 
Co.  V.  Spratley,  172  U.  S.  602,  619,  43  L. 
Ed.  569.  19  S.  Ct.  308;  Conley  7'.  Mathie- 
son    Alkali    Works,    190   U.    S.    406,    47    L. 


Ed.  1113,  23  S.  Ct.  728;  Pennsylvania,  etc., 
Fire  Ins.  Co.  v.  Meyer,  197  U.  S.  407,  49 
L.  Ed.  810,  25  S.  Ct.  483;  Peterson  v.  Chi- 
cago, etc.,  R.  Co.,  205  U.  S.  364,  51  L.  Ed. 
841,  27  S.  Ct.  513.  See  ante,  DOING 
BUSINESS,  p.  471. 

This  subject  underwent  extensive  con- 
sideiation  in  the  case  of  Goldey  t'.  Morn- 
ing News,  156  U.  S.  518,  39  L.  Ed.  517, 
15  S.  Ct.  559,  and  the  rule  is  there  stated 
by  Mr.  Justice  Gray,  speaking  for  the 
court,  as  follows:  "Service  of  mesne 
process  from  a  court  of  a  state,  not 
made  upon  the  defendant  or  his  au- 
thorized agent  within  the  state,  altliough 
there  made  in  some  other  manner  rec- 
ognized as  valid  by  its  legislative  acts 
and  judicial  decisions,  can  be  allowed  no 
\alidity  in  the  circuit  court  of  the  United 
States  after  the  removal  of  the  case  into 
that  court,  pursuant  to  the  acts  of  con- 
c^ress,  unless  the  defendant  can  be  held, 
by  virtue  of  a  general  appearance  or 
otherwise,  to  have  waived  the  defect  in 
the  service,  and  to  have  submitted  him- 
self to  the  jurisdiction  of  the  court." 
Mechanical  Appliance  Co.  v.  Castleman, 
215  U.  S.  437,  54  L.  Ed.  272,  30  S.-  Ct. 
125. 

A  foreign  accident  insurance  company 
which  has  policies  outstanding  in  the 
state,  and  has  and  exercises  the  right  to 
investigate  losses  thereunder,  to  examine 
the  body  of  the  deceased  insured,  and  to 
adjust  and  settle  losses  within  the  state, 
is  doing  business  therein  so  as  to  sup- 
port service  of  process  upon  a  local 
agent,  conformably  to  Rev.  St.  Mo.  1899, 
§  7992  (Ann.  St.  1906,  p.  3801).  providing 
for  the  service  of  process  in  actions 
against  foreign  insurance  companies. 
("Commercial  Mut.  Acci.  Co.  v.  Davis,  213 
U.   S.   2 -I,'-,.   53   L.   Ed.   782,   29   S.   Ct.   445. 

309-38a.  Extent  of  business. — Com.- 
mercial  ]Mut.  Acci.  Co.  r.  Davis,  213  U. 
S.    245,    53    L.    Ed.    782.    29    S.    Ct.    445. 

312-42.  Proof  of  agency. — Service  of 
process  upon  a  foreign  corporation  should 
not  be  quashed  on  the  theory  that  when 
the  attempted  service  was  made  the  per- 
son served  was  not  the  corporation's 
agent,  where  the  decided  preponderance 
of  the  testimony  is  to  the  effect  that,  not- 
'vithstanding  the  prior  formation  of  a 
partnership  l^etwecn  him  and  certain  of 
the  officers  of  the  corporation,  which  is 
claimed  to  have  terminated  bis  agency, 
he  still  remained  the  corporation's  local 
managing  agent,  and  continued  doing 
business    for    it    in    the    state.      Herndon- 


1152 


Vol.  XI. 


SUMMONS  AND  PROCESS. 


312-314 


(2)  Designation  of  Agent  to  Receive  Sennce. — See  note  43. 

(3)  Particular  Persons  on  IVhoni  Process  May  Be  Served — cc.  Local  Agents. 
— See  note  49. 

ee.  Insurance  Adjusters. — A  state  may  provide,  as  has  Missouri  by  Rev.  St. 
Mo.  1899,  §  7992  (Ann.  St.  1906,  p.  3801),  for  the  service  of  process  in  an  action 
against  a  foreign  insurance  company  upon  any  person  within  the  state  who  ad- 
justs a  loss.^'^^ 


Carter  Co.  v.  Norris  Son  &  Co.,  224  U. 
S.  496,  56  L.  Ed.  857,  32  S.  Ct.  550.  See 
ante,  FOREIGN  CORPORATIONS,  p. 
584. 

312-43.  Designation  or  appointment  of 
agent. — In  view  of  the  fact  that  much  of 
the  business  of  the  country  is  done  by 
corporations  having  foreign  charters  and 
principal  offices  remote  from  states 
wherein  they  transact  business,  it  has 
been  found  necessary  to  make  provision 
for  the  service  of  summons  upon  local 
agents,  in  order  to  give  jurisdiction  to 
try  controversies  which  have  originated 
in  such  states.  With  this  purpose  in 
view,  many  states  have  provided  that  for- 
eign corporations,  in  order  to  do  business 
within  the  state,  must  make  provision  for 
service  upon  some  local  agent,  or  by  au- 
thority conferred  upon  some  state  officer 
to  accept  service  of  smnmons.  And  but 
for  such  statutes  and  the  authority  given 
by  the  states  to  obtain  service  upon  local 
agents,  there  could  be  no  recovery  upon 
the  contracts  of  such  companies,  unless 
redress  be  sought  in  a  distant  state, 
where  the  company  may  happen  to  have 
its  home  office.  Commercial  Mut.  Acci. 
Co.  V.  Davis,  213  U.  S.  245,  53  L.  Ed.  782, 
29  S.  Ct.  445,  citing  Connecticut  Mut. 
Life  Ins.  Co.  :-.  Spratley,  172  U.  S.  602, 
619,  43  L.  Ed.  569,  19  S.  Ct.  308;  Railroad 
Co.  V.  Harris,  12  Wall.  65,  83,  20  L.  Ed. 
354. 

How  authority  to  receive  service  con- 
ferred.— It  is  not  necessary  that  express 
authority  to  receive  service  of  process 
be  shown.  The  law  of  the  state  may 
designate  an  agent  upon  whom  service 
may  be  made,  if  he  be  one  sustaining 
such  relation  to  the  company  that  the 
state  may  designate  him  for  that  pur- 
pose, exercising  legislative  power  within 
the  lav/ful  hounds  of  due  process  of  law. 
This  was  held  in  efifect  in  Connecticut 
Mut.  Life  Ins.  Co.  v.  Snratley,  172  U.  S. 
602.  43  L.  Ed.  569,  19  S.  Ct.  308;  Com- 
mercial Mut.  Acci.  Co.  V.  Davis,  213  U. 
S.    245,    53    L.    Ed.    782,    29    S.    Ct.   445. 

For  example,  a  statute  of  a  state  pro- 
viding that  an  agent  competent  by  au- 
thority of  the  company  to  settle  and 
adjust  losses  shall  be  competent  to  repre- 
sent the  company  for  the  service  of  proc- 
ess is  sufficient  for  this  purpose.  And  if 
the  company  sends  such  an  agent  into 
the  state  he  is  presumed  by  force  of  the 
statute  to  represent  the  company  for 
the  purpose   of  service,  and  to  be  vested 


with  authority  in  respect  to  such  service 
so  far  as  to  make  it  known  to  the  foreign 
corporation  thus  coming  within  the  state 
and  subjecting  itself  to  its  laws.  Com- 
mercial Mut.  Acci.  Co.  c'.  Davis,  213  U. 
S.  245,  53  L.  Ed.  782,  29  S.  Ct.  445,  citing 
Lafavette  Ins.  Co.  v.  French,  18  How. 
404,  408,  15   L.  Ed.  451. 

Right  to  revoke  authority  of  designated 
agent. — A  foreign  insurance  company, 
upon  withdrawing  from  the  state  in  good 
faith,  to  escape  the  compulsion  of  N.  C. 
Act  of  February  10,  1899,  requiring  it  to 
become  a  domestic  corporation  if  it  de- 
sires to  continue  to  do  business  in  the 
state,  may  revoke  its  appointment  of  the 
state  insurance  commissioner  as  its  agent 
to  receive  service  of  process,  so  far  as 
claims  of  citizens  of  other  states  are  con- 
cerned, which  are  assigned  after  such 
withdrawal  to  a  resident  of  the  state  for 
collection,  although  N.  C.  Laws  1899, 
chap.  54,  continues  the  authority  of  the 
commissioner  in  force  and  irrevocable  so 
long  as  any  liabilit}'-  of  the  company  shall 
remain  outstanding  in  the  state.  Hunter 
V.  Mutual,  etc..  Life  Ins.  Co.,  218  U.  S. 
573.   54   L.   Ed.   1155,   31   S.   Ct.   127. 

The  receipt  by  a  foreign  insurance 
company  at  its  home  office  of  premiums 
upon  policies  theretofore  issued,  together 
with  fo'ir  isolated  acts  extending  over  a 
period  of  three  years,  consisting  in  re- 
writing as  existing  policy,  sending  a 
clieck  in  payment  of  a  policy,  to  be  de- 
livered upon  receipt  of  certain  unpaid 
assessments,  and  tv/o  adjustments  within 
the  state  of  claims  which  have  accrued, 
do  not  constitute  doing  business  within 
the  state  after  the  company's  asserted 
withdrawal  therefrom  in  good  faith,  so 
as  to  preclude  it  from  revoking  its  desig- 
nation of  the  state  insurance  commis- 
sioner as  its  agent  to  receive  service  of 
process.  Hunter  v.  Mutual,  etc.,  Life  Ins. 
Co.,  218  U.  S.  573,  54  L.  Ed.  1155,  31  S. 
Ct.    127. 

313-49.  The  medical  representative  of 
a  foreign  company  v.dio  comes  into  the 
state  clothed  with  full  authority  to  ad- 
just a  claim  is  one  "who  adjusts  or  set- 
tles a  loss"  within  Rev.  St.  Mo.  1899. 
§  7992  (Ann.  St.  1906,  p.  3801),  provid- 
ing for  service  of  process  on  local 
agents,  although  in  fact  such  loss  is  not 
actually  settled.  Commercial  Mut.  Acci. 
Co.  V.  Davis,  213  U.  S.  245,  53  L.  Ed.  782, 
2!)  S.   Ct.  445. 

314-50a.       Insurance       adjusters. — Com- 


12  U  S  Enc— -73 


1153 


328-336     SUPBRSBDBAS  AND  STAY  OF  PROCEEDINGS.       Vol.  XI. 

VII.  Return. 
E.    Effect  and  Conclusiveness. — See  note  34. 

SUNDAYS  AND  HOLIDAYS.— See  the  title  Sundays  and  Holidays,  vol. 
11,  p.  330,  and  references  there  given. 


SUPERSEDEAS  AND  STAY  OF  PROCEEDINGS. 

I.  Supersedeas,  1154. 

B.  Manner  of  Superseding  Proceedings  below,   1154. 
2.  Under  the  Statutes,  1154. 
b.  Perfecting  Appeal,  1154. 

(2)    Service  of  Writ  and  Filing  Bond,  1154. 

n.  Stay  of  Proceedings,  1154. 

A.  Right  to  Stay  Proceedings,  1154. 

CROSS  REFERENCES. 

See  the  title  Supersedeas  and  Stay  of  Proceedings,  vol.  11,  p.  333,  and  ref- 
erences there  given. 

As  to  motion  to  dismiss  for  defect  of  parties  to  supersedeas  bond,  see  ante. 
Appeal  and  Error,  p.  34.  As  to  suspension  of  orders  and  decisions  of  interstate 
commerce  commission  or  the  commerce  court  pending  appeal  to  the  federal  su- 
preme court,  see  ante.  Interstate  and  Foreign  Commerce,  p.  689. 

I.     Supersedeas. 
B.   Manner  of  Superseding  Proceedings  Below — 2.    Under  the  Stat- 
utes— b.  Perfecting  Appeal — (2)  Service  of  Writ  and  Filing  Bond. — See  note  15. 


mercial  Alut.  Acci.  Co.  t'.  Davis,  213  U. 
S.  245,  .53  L.  Ed.  782,  29  S.  Ct.  445.  See 
ante,   INSURANCE,  p.  674. 

328-34.  Effect  and  conclusiveness. — 
The  return  of  the  sheriff  of  the  state 
court  is  not  conclusive  upon  the  ques- 
tion of  the  validity  of  service  of  process, 
where  the  cause  has  been  removed  to  a 
federal  circuit  court  by  a  defendant  who 
raises  by  plea  to  the  jurisdiction  the  ob- 
jection that  it  was  a  foreign  corporation 
not  doing  business  within  the  state,  and 
that  the  person  served  with  process  was 
not  its  agent  at  that  time.  Mechanical 
Appliance  Co.  v.  Castleman,  215  U.  S. 
437,    54   L.    Ed.' 272,   30   S.    Ct.   125. 

336-15.  Time  for  allowance  and  lodge- 
ment of  writ  of  error. — Under  Rev.  Stat. 
U.  S..  §  1007  (U.  S.  Comp.  Stat.  1901,  p. 
714),  the  allowance  of  a  writ  and  the 
lodgement  of  the  same  in  the  office  of  the 
clerk  within  sixty  days  after  the  date  of 
a  judgment  are  essential  prerequisites  to 
the  granting  of  a  supersedeas.  Title 
Guaranty,  etc.,  Co.  v.  United  States,  222 
U.   S.  401,  56  L.   Ed.  248,  32  S.   Ct.   168. 

Appeals  from  circuit  court  of  appeals. 
— The  general  provisions  of  Rev.  St.  U. 
S.,  §  1007  (U.  S.  Comp.  St.  1901,  p.  714), 
limiting  the  time  within  which  a  writ  of 
error  must  be  allowed  and  lodged  in  the 
clerk's   office   if  a   supersedeas  is   desired, 


would  govern  writs  of  error  from  the 
federal  supreme  court  to  the  circuit 
courts  of  appeals,  even  under  the  mis- 
taken hypothesis  that  writs  of  error  from 
tlie  circuit  courts  of  appeals  to  inferior 
courts,  and  appeals  from  such  courts  to 
the  circuit  courts  of  appeals,  were  all 
that  were  within  the  purview  of  the  pro- 
vision of  Act  March  3,  1891,  c.  517,  §  11, 
26  Stat.  829  (U.  S.  Comp.  St.  1901,  p. 
552),  that  "all  provisions  of  law  now  in 
force  regulating  the  methods  and  sys- 
tem of  review,  through  appeals  or  writs 
of  error,  shall  regulate  the  methods  and 
systems  of  appeals  and  writs  of  error 
provided  for  m  this  act  in  respect  of  the 
circuit  courts  of  appeals,  including  all 
provisions  for  bonds  or  other  securities 
to  be  required  and  taken  on  such  appeals 
and  writs  of  error."  Title  Guaranty,  etc.. 
Co.  V.  United  States,  222  U.  S.  401,  56  L. 
Ed.   248.   32    S.    Ct.   168. 

Extension  of  time  for  lodging  writ  of 
error. — The  time  fixed  by  Rev.  St.  U.  S., 
§  1007  (U.  S.  Comp.  St.  1901,  p.  714), 
within  which  a  writ  of  error  from  the 
federal  supreme  court  to  a  circuit  court 
of  appeals  must  be  allowed  and  lodged 
in  the  clerk's  office  if  a  supersedeas  is 
desired,  can  not  be  extended  by  a  stay 
granted  to  afford  an  opportunity  to  ap- 
ply for  a  writ  of  certiorari,  since  there  is 


1154 


Vol.  XL 


TARIFF. 


352-354 


II.  Stay  of  Proceedings. 

A.  Right  to  Stay  Proceedings. — A  federal  circuit  court  can  not  stay  pro- 
ceedings in  a  cause  over  which  it  has  jurisdiction  and  withhold  further  action 
until  a  case  involving  the  same  question  may  be  brought  and  determined  in  a 
state  court. '^^ 

SUPPLEMENTAL  BILL.— See  ante.  Equity,  p.  550. 

SUPPRESS.— See  note  a. 

SUPREME  COURT.— See  ante.  Courts,  p.  398. 

SURETIES.— See  ante,  Principal  and  Surety,  p.  1003. 

SURETYSHIP.— See  ante,  Principal  and  Surety,  p.   1003. 

SURFACE  BOUNDARIES.— See  ante,  Boundarii-s,  p.  206;  Mines  and 
Minerals,  p.  865. 

SURGEONS. — See  ante.  Physicians  and  Surgeons,  p.  949.  And  see  ante, 
Army  and  Navy,  p.  150. 

SURVEY.— See  ante.  Public  Lands,  p.  1012. 

SURVIVAL  OF  ACTIONS.— See  ante,  Abatement,  Revival  and  Sur- 
vival, p.  1. 

SURVIVOR.— See  ante,  Husband  and  Wife,  p.  620;    Partnership,  p.  933. 

SUSPENSION. — See  ante,  Limitation  op  Actions  and  Adverse  Posses- 
sion, p.  828. 

SWAMP  AND  OVERFLOWED  LANDS.— See  ante.  Public  Lands,  p.  1012. 

SWEARING.— See  ante.  Perjury,  p.  948;    Public  Lands,  p.   1012;    post, 

\\'lTNESSES. 

TAKE— TAKING— TAKEN.— See  note  2. 
TALESMEN.— See  ante,  Jury,  p.  813. 
TARIFF.— See  ante,  Revenue  Laws,  p.  1071. 


no  power  in  the  federal  supreme  court  to 
allow  a  certiorari  under  Act  March  3. 
1901,  p.  547),  in  a  case  where  there  is  au- 
1901,  p.  547),  in  a  case  where  there  is  au- 
thority to  review  the  action  of  the  lower 
court  by  writ  of  error  or  appeal.  Title 
Guaranty,  etc.,  Co.  v.  United  States,  222 
U.   S.  401,   56  L.  Ed.  248,  32   S.   Ct.  168. 

352-14a.  Right  to  stay  proceedings. — 
"McClellan  v.  Garland.  217  U.  S.  268,  54 
L.    Ed.   762,   30   S.    Gt.   501. 

A  suit  within  the  original  jurisdiction 
of  a  federal  circuit  court,  to  have  the 
complainants  adjudicated  to  be  the  heirs 
at  law  and  next  of  kin  of  a  decedent,  can 
not  be  stayed  by  that  court  to  await  the 
commencement  and  prosecution  to  final 
determination  of  a  suit  to  be  brought  in 
a  state  court,  on  behalf  of  the  state,  to 
determine  an  escheat  of  the  estate.  Mc- 
Clellan  r.  Garland,  217  TJ.  S.  268,  54  L. 
Ed.   762,    30   S.    Gt.    501. 

352-a.  Authority  of  governor  to  repel 
or  suppress  insurrections. — "The  consti- 
tution of  Golorado  is  supplemented  by  an 
act  providing  that  'when  an  invasion  of 
or  insurrection  in  the  state  is  made  or 
threatened  the  governor  shall  order  the 
national  guard  to  repel  or  suppress  the 
same.'  Laws  of  1897,  c.  63,  art.  7.  §  2,  p. 
?04.  That  means  that  he  shall  m.ake  the 
ordinary  use  of  the  soldiers  to  that  end; 
that  he  may  kill  persons  who  resist  and. 


of  course,  that  he  may  use  the  milder 
measure  of  seizing  the  bodies  of  those 
whom  he  considers  to  stand  in  the  way  of 
restoring  peace.  Such  arrests  are  not 
necessarily  for  punishment,  but  are  by 
way  of  precaution  to  prevent  the  exer- 
cise of  hostile  power.  So  long  as  such 
arrests  are  made  in  good  faith  and  in  the 
honest  belief  that  they  are  needed  in  or- 
der to  head  the  insurrection  off,  the  gov- 
ernor is  the  final  judge  and  can  not  be 
subjected  to  an  action  after  he  is  out  of 
office  on  the  ground  that  he  had  not  rea- 
sonable ground  for  his  belief."  Knox- 
ville  V.  Knoxville  Water  Go.,  212  U.  S.  1, 
8,  53  L.  Ed.  371.  29  S.  Gt.  148.  See  ante, 
STATES. 

354-2.  As  to  when  appeal  is  taken. — 
"As  Mr.  Justice  Bradley  said  in  Gredit 
Go.  V.  Arkansas  Gent.  R.  Co.,  128  U.  S. 
258,  261,  32  L.  Ed.  448:  'An  appeal  can 
not  be  said  to  be  taken  any  more  than  a 
writ  of  error  can  be  said  to  be  "brought" 
until  it  is,  in  some  way,  presented  to  the 
court  which  made  the  decree  appealed 
from,  thereby  putting  an  end  to  its  juris- 
diction over  the  cause,  and  making  it  its 
duty  to  send  it  to  the  appellate  court.' " 
Old'  Nick  Williams  Co.  v.  United  States. 
215  U.  S.  541,  543.  54  L.  Ed.  318,  30  S.  Gt. 
221.  See  ante,  APPEAL  AND  ERROR, 
p.  34. 


11.-) 


TAXATION.  Vol.  XL 


TAXATION. 

II.  Classification  of  Taxes,  Definitions  and  Distinctions,  1159. 

B.  Definitions,  1159. 

4.  Excise  Taxes,  1159. 

b.  Excise  Tax  on  Doing  Business,  etc.,  as  Measured  by  Receipts, 

1159. 
d.  Duty  on  Gains,  Profits,  Incomes  and  Dividends,  1159. 

C.  Distinctions,  1160. 

III.  Taxing  Power,  1160.. 

A.  In  General,  1160. 

2.  Limitations  on  Power,  1160. 

b.  Requirement  of  Equality  and  Uniformity,  1160. 

(>4)   In  General,  1160. 
d.  Retrospective  Taxation,  1160. 

4.  Territorial   Limitations   of    Power,    1160. 

a.  Situs  of  Property,  1160. 

b.  Effect  of  Compact    between   States    as  to    Jurisdiction  over 

Waters,  1160. 

c.  Reservation  of  Porto  Rico  Harbor  Areas  and  Waters  in  Fa- 

vor of  the  L'nited  States,  1161. 

D.  Of  the  States,  1161. 

1.  In  General,  1161. 

b.  Nature  and  Extent,  1161. 

E.  Of  Municipal  Corporations,  1161. 

1.  In  General,  1161.  , 

h.  Misappropriation  of  Special  Tax,  1161. 

IV.  Subjects  of  Taxation,  1161. 

A.  General  Principles,  1161. 

2.  Jurisdiction  and  Situs,  1161. 

a.  Necessity  for  Jurisdiction,  1161. 

(2)    Nonresidency  of  Owner  Does   Not   Prevent  Taxation, 
1161. 

b.  Situs  as  Determining  Taxability,   1161. 

(1)  Of  Real  Estate,  1161. 

(2)  Of  Personal  Property,  1161. 

(a)  In  General,  1161. 

(b)  Of  Tangible  Personal  Property,   1162. 
aa.  In  General,  1162. 

dd.  Ships  and  Shipping,  1162. 

(c)  Of  Intangible  Personal  Property,   1165. 
aa.  In    General — Debts   and   Credits,    1165. 

cc.  Corporate  Bonds  Held  Out  of  State,  1168. 
g,g.  Credits   of  Foreign  Insurance  Company,   1168. 

5.  Application  of  Doctrine  of  Res  Judicata,  1168. 
C.  Corporations  and  Corporate  Stock,  1168. 

3.  Particular  Kinds  of  Corporations,  1168. 

a.  Banks  and  Bank  Stock,  1168. 
(1)   Power  to  Tax,  1168. 

(c)    State  Taxation  of  National  Banks,  1168. 
aa.  In  General,  1168. 
bb.  National   Bank   Shares,    1168. 
(aa)    In  General,  1168. 

1156 


Vol.  XL  TAXATION. 

(bb)   Discrimination     Forbidden,     and     What 
Constitutes,  1168. 
fff.  Discrimination  in   Mode    of    .Assess- 
ment,  1168. 
(ccc)   Deduction  of  Real  Estate  Out- 
side of  State,  1168. 
(cc)   Assessment  to  Bank  Direct  as  Agent  for 
Stockholders,  1168. 
iii.  Tax   on  Foreign   Held   Shares,    1169. 
cc.  Franchise  or  Intangible  Property,  1169. 
dd.  Resisting  Reassessment,  1169. 

(d)  Federal  Taxation  of  Banks,  1170. 
(2)   Mode  of  Taxation,  1170. 

(e)  Taxation  of  Circulation,  1170. 
j.  Foreign  Corporations,   1170. 

D.  Federal,  State  and  Alunicipal  Securities,  1170. 

2.  State  and  Municipal  Securities,  1170. 
F.  Imports  and  Exports,  1170. 
2.  By  the  States,  1170. 

b.  Under   Prohibition   to   States    to    Tax   Imports  and  Exports, 
1170. 
(7)   Foreign  Warehouse  Receipts,   1170. 
H.  Lands  and  Interests  Therein,  1170. 

1.  Lands  in  General,  1170. 

2.  Public  Lands  of  the  United  States,  1170. 

b.  Public  Lands  Not  Granted,  1170. 

c.  Public  Lands  after  Entry  or  Grant  but  before  Issue  of  Patent, 

1171. 

(2)  Alineral  Lands,   1171. 

(3)  Railroad  Grants,  1171. 

3.  Interest  of  Lessee,  1171. 

4.  Mortgaged  Property,  1172. 

I.  Money  and  Deposits  in  Bank,  1172. 
O.  Distilled  Spirits  in  Bonded  Warehouse,  1172. 

V.  Exemptions  from  Taxation,  1172. 

A.  Definitions  and  Distinctions,  1172. 

B.  Power  to  Grant  Exemptions,  1172. 

1.  Power  of  State  Legislatures,   1172. 

a.  In  General,  1172. 
3.  Power  of  Municipalities,   1172. 

C.  Rules  of  Construction,  1173. 

1.  Statutes  Exempting  Property,  1173. 
a.  In  General,  1173. 

c.  Presumptions  and  Burden  of  Proof,  117.^. 

(1)    Presumptions,  1175. 

d.  Implied  Exemptions.   1175. 

(1)  In  General,  1175. 

(2)  Effect  of  Silence  of  Charter  as  to  Exemption.  1175. 

f.  Act   of   Congress   Ratifying   Territorial   Grant   of    Franchise, 

1176. 

g.  Exemption  of  Indian  Allotments,  1176. 

D.  Impairment  of  Obligation  of  Contracts.  1176. 

1.  In  General,  1176. 

5.  Exemption  Granted  Owner  of  Land,   1176. 

a.  In  General,   1176. 

11J7 


TAXATION.  Vol.  XI. 

b.  Taxation  of  Interest  of  Lessee,  1176. 
6.  Exemption  of  Indian  Allotments,  1177. 

F.  Transfer  of  Immunity  from  Taxation,  1178. 

1.  Right  of  Owner  to  Transfer  Exemption,  1178. 

3.  Effect  of  Consolidation  or  Sale  of  Corporation  Enjoying  Exemp- 

tion, 1178. 

4.  Power  of  Legislature  to  Transmute  Exemption,   1180. 

a.  In  General,  1180. 

b.  Construction  of  Particular  Words  and  Phrases  in  Grant,  1180. 

G.  Property  Entitled  to  Exemption,  1181. 

4.  Corporations,   1181. 

a.  Corporate  Stock,  1181. 

(1)  Exemption  of  Capital   Stock  as  Exemption  of   Share- 

holders, 1181. 
(3)    Exemption  of   Stock  as  Exemption  of   Property   Rep- 
resented Thereby,   1181. 

b.  Banks,  1182. 

(2)  Inviolability  of  Contract,   1182. 

cc.  Limitations  of  General  Rule,   1182. 
dd.  Changing  Day  of  Assessment,  1182. 

c.  Railroads,  1182. 

(1)   Inviolability  of  Contract,  1182. 
H.  Commencement  and  Termination  of  Exemption.  1183. 

3.  Duration,  1183. 

4.  Revivor  of  Exemption  of  Railroad  A'oid  for  Failure  to  Construct 

in  Time  Limit,  1183. 

VI.  Assessment  and  Levy,  1183. 
A.  General  Principles,  1183. 

4.  Due  Process  of  Law.  1183. 

a.  General  Statement,  1183. 

b.  Notice  and  Hearing,  1183. 

(1)  Necessity  Generally,  1183. 

(2)  Character  of  Notice  and  Hearing,  1184. 
(3^)   Entry  and  Record  of  Assessment,  1184. 

c.  Taxation  in  Rem,  1184. 

e.  Classification  of  Property  Not  Prohibited,  1184. 

g.  Assessment  of  Back  Taxes,  and  Reassessments,   1185. 
i.  Credits  Due  Foreign  Insurance  Companies.   1186. 
j.  Allowance  for  Obligations  and  Debts,  1186. 

5.  Conclusiveness  of  Assessment,   1186. 

6.  Time  and  Place,   1187. 

C.  Liability  for  and  Payment  of  Taxes,  1187. 

1.  Liability,  1187. 

d.  Between  Landlord  and  Tenant,  1187. 

f.  Between  Vendor  and  Vendee,  1187. 
j.  Company  Operating  Railroad,  1187. 

k.  Shares  of  National  Bank  Stock.  1188. 

D.  Lien  for  Taxes.  1188. 

2.  Accrual  and  Duration,  1188. 
4.  Enforcement,  1188. 

F,  Corrections  and  Additions.  1188. 

4._  Boards  of  Revision  or  Equalization,  etc.,   1188. 
H.  Injunction  against  Taxes,  1188. 

1.  Jurisdiction,   1188. 

a.  General  Statement  of  Rule,  1188. 

1158 


Vol.  XL  TAXATION.  371-372 

b.  Exhaustion  of  Other  Remedies,  1189. 

f.  Necessity  for  Pavment  of  Taxes  Admittedly  Due,   1189. 
4.  Res  Judicata,  1189. 

VII.  Collection  of  Taxes,  1189. 
A.  General  Principles,   1189. 

2.  Due  Process  of  Law.  1189. 
D.  Collection  by  Suit  or  Motion.  1190. 
2.  Jurisdiction,   1190. 
a.  At  Law,  1190. 
F.  Forfeiture  or  Purchase  by  State  for  Taxes,  1190. 

VIII.  Sale  for  Taxes,  1191. 

A.  General  Principles  and  Preliminary  Steps,  1191. 
]/>.  Nature  of  Proceedings,  1191. 

6.  Filing  Certificates  of  Delinquency.  1192. 

7.  Notice  and  Summons,  1192. 

8.  Petition  or  Complaint,  1192. 

9.  Application  for  Judgment,  1193. 
B-C.  Advertisement  and  Notice,  1193. 

1.  Necessity  and  Purpose,  1193. 

L  Tax  Deed  or  Certificate  and  Title  Passing  Thereunder,  1193. 
6.  Description  of  Property,  1193. 
9.  Efficacy  of  Tax  Deed  to  Pass  Title.  1194. 

c.  As  Prima  Facie  Evidence  of  Title  under  Statutes,  1194. 
T.  Relief  against  Invalid  Sale  and  Deed,  1194. 

2.  Grounds  of  Relief.   1194. 
M.  Redemption,  1194. 

1.  Regulation  of  Right.  1194. 

IX.  Refunding  and  Recovery  Back  of  Taxes,  1194. 

B.  Recovery  Back,  1194. 

3.  Payment  Must  Not  Be  Voluntary,  1194. 

X.  Disposition  and  Expenditure  of  Taxes,  1195. 

F.  Agreement  by  Municipalitv  to  Pav  Judgments  in  Order  of  Rendition, 
1195. 

CROSS  REFERENCES. 

See  the  title  Taxation,  vol.  11,  p.  356,  and  references  there  given. 
In  addition,  see  ante.  Appeal  and  Error,  p.  34. 

As  to  impairment  of  obligation  of  contract  of  municipality  by  restricting  tax- 
ation, see  ante,  I^rpAIRMEXT  of  Obligation  of  Contracts,  p.  624. 

II.    Classification  of  Taxes,  Definitions  and  Distinctions. 

B.  Definitions — 4.  Excise:  Taxes — b.  Excise  Tax  on  Doing  Business,  etc., 
as  Measured  by  Receipts. — A  tax  upon  earnings  is  a  tax  which  at  last  covers 
and  includes,  unless  double  taxation  is  intended,  all  property  necessarily  held 
and  used  to  make  that  income,  including  the  enjoyment  of  its  franchises."^ 

d.  Duty  on  Gains,  Profits,  Incomes  and  Dividends. — Relation  to  Property 
Tax. — Since  the  commercial  value  of  property  consists  of  the  expectation  of 
income  from  it,  and  since  taxes  ultimately,  at  least,  in  the  long  run.  come  out  of 
income,  obviously  taxes  called  taxes  on  property,  and  those  called  taxes  on 
income  or  receipts,  tend  to  run  into  each  other  somewhat  as  fair  value  and  an- 
ticipated profits  run  into  each  other  in  the  law  of  damages. ^^* 

371-7a.    Tax   on    earnings. — Wright     7'.  372-lla.     Relation    to    property    tax. — 

Georgia  R.,  etc.,  Co..  216  U.  S.  420,  54  L.       Galveston,   etc.,    R.    Co.   v.   Texas,   210  U. 
Ed.  .544.  .30   S.   Ct.  242.  S.  217.  52  L.  Ed.  1031.  28  S.  Ct.  638. 

1159 


378-388 


TAXATION. 


Vol.  XI. 


C.  Distinctions. — See  ante,  "Duty  on  Gains,  Profits,  Incomes  and  Divi- 
dends," II,  B,  4,  d. 

III.  Taxing  Power. 

A.  In  General — 2.  Limitations  on  Power — b.  Requirement  of  Equality 
and  Uniformity — (^)  In  General. — The  legality  of  a  tax  is  not  to  be  meas 
ured  by  the  benefits  received  by  the  taxpayer,  although  ecjuality  of  burdens  be 
the  general  standard  so>ught  to  be  attained.  Protection  and  taxation  are  not 
necessarily  correlative  obligations,  nor  precise  equality  of  burden  attainable, 
however  desirable.  The  taxing  power  is  one  which  may  be  interfered  with 
upon  the  grounds  of  unjustness  only  when  there  has  been  such  flagrant  abuse 
as  may  be  remedied  by  some  affirmative  principle  of  constitutional  law."*'^'^ 

d.  Retrospective  Taxation. — Laws  of  a  retroactive  nature,  imposing  taxes  or 
providing  remedies  for  their  assessment  and  collection,  and  not  impairing  vested 
rights,  are  not  forbidden  by  the  federal  constitution.'^^'' 

4.  Territorial  Limitations  of  Power — a.  Situs  of  Property. — See  post, 
"Situs  as  Determining  Taxability,"  IV,  A,  2,  b. 

b.  Effect  of  Compact  betiveen  States  as  to  Jurisdiction  over  Waters. — The  ex- 
clusive jurisdiction  of  and  over  all  the  waters  of  the  bay  of  New  York  and  of 
and  over  the  land  covered  by  the  said  waters  to  the  low-water  mark  on  the  New 
Jersey  shore,  conferred  on  the  state  of  New  York  by  the  compact  between  that 
state  and  New  Jersey,  does  not  include  the  right  of  the  sovereign  power  of  taxa- 
tion."■''=     Such  lands  are  taxable  by  New  Jersey. ^^'' 


378-46a.  Requirement  of  equality  and 
uniformity. — Southern  Pac.  Co.  v.  Kcn- 
tuckj^  223  U.  S.  G3,  56  L.  Ed.  96,  ,">2  S. 
Ct.    13. 

388-88a.  Retrospective  taxation. — Ken- 
tucky Union  Co.  v.  Kentucky,  219  U.  S. 
140,  55  L.  Ed.  137,  31  S.  Ct.  171,  citing 
League  v.  Texas.  184  U.  S.  156,  46  L.  Ed. 
478,   22   S.   Ct.   475. 

388-89a.  "The  word  'jurisdiction'  ob- 
viously is  used  in  a  more  limited  sense. 
The  word  has  occurred  in  other  cases 
where  a  river  was  a  boundary,  and  in  the 
Virginia  compact  was  held  to  mean, 
primarily  at  least,  jurisdictio,  authority 
to  apply  the  law  to  the  acts  of  men. 
Wedding  v.  Meyler,  192  U.  S.  573,  584,  48 
L.  Ed.  570,  24  S.  Ct.  323."  Central  R.  Co. 
V.  Jersey  Citv,  209  U.  S.  473,  52  L.  Ed. 
896,   28    S.    Ct.   592. 

388-89b.  Lands  lying  between  the  mid- 
dle of  New  York  Bay  and  the  low-water 
line  on  the  New  Jersey  shore  are  tax- 
able by  New  Jersey,  notwithstanding  the 
provisions  of  a  compact  between  the 
states,  fixing  the  boundary  line  as  the 
middle  of  New  York  Bay,  approved  by 
congress.  Act  June  28,  1834,  c.  126,  4 
Stat.  708,  by  which  New  York  is  given 
"exclusive  jurisdiction  of  and  over  all 
the  waters  of  the  baj-  of  New  York,"  and 
■'of  and  over  the  land  covered  by  the 
said  waters  to  the  low-water  mark"  on 
the  New  Jersey  side,  subject  to  the  ex- 
clusive right  of  property  in  New  Jersey 
"in  and  to  the  land  under  water  Ijdng 
west  of  the  middle  of  the  bay,"  and  to 
her  exclusive  jurisdiction  over  wharves, 
docks,  and  improvements  made,  or  to 
be    made,    on   her    shore,    and    to   her   ex- 


clusive right  to  regulate  the  fisheries  on 
the  west  of  the  middle  of  said  waters. 
Judgment  (Err.  &  App.  1905),  61  A.  1118, 
72  N.  J.  Law,  311,  affirmed.  Central  R. 
Co.  -c'.  Jersey  City,  209  U.  S.  473,  52  L. 
Ed.   896,  28   S.   Ct.  592. 

"The  conclusion  reached  has  the  very 
powerful  sanction  of  the  conduct  of  the 
parties  and  of  the  existing  condition  of 
things.  See  Moore  v.  McGuire,  205  U. 
S.    214,    220,    51    L.    Ed.    776,    27    S.    Ct.    483. 

*  *  *  The  record  of  transfers  ol  such 
lands  was  kept  in  New  Jersey,  not  in 
New  York.  New  York  never  has  at- 
tempted to  tax  the  land,  while  in  Nev/ 
Jersey  has  levied  more  or  less  similar 
taxes  for  many  years  without  dispute. 
See,  e.  g..  State,  Coles,  Prosecutor  v. 
Piatt,  24  N.  J.  L.  108,  120;  State  v.  Bent- 
ley,  Prosecutor  v.  Sippel,  25  N.  J.  L.  530; 
State,  Morris  Canal  &  Bkg.  Co.,  Prosecu- 
tor V.  Haight,  35  N.  J.  L.  178:  S.  C.  36 
N.  J.  L.  471.  New  Jersey  not  New  York, 
regulates  the  improvements  on  the  shore. 
Act  of  March  18,  1851,  P.  L.  1851,  p.  335; 
Rev.  1877,  p.  1240;  Act  of  April  11.  1864, 
P.  L.  1864,  p.  681;  March  31,  1869,  P.  L. 
1869.  p.  1017;  3  Gen.  Stat.  2784,  2786; 
New  York,  L.  E.  &  W.  R.  Co.  v.  Hughes, 
46  N.  J.  L.  67."  Central  R.  Co.  v.  Jersey 
City,  209  U.  S.  473,  52  L.  Ed.  896,  28  S. 
Ct.    592. 

"The  land  which  has  been  taxed  is  on 
the  New  Jersey  side  of  the  boundary  line, 
l)ut  under  the  exclusive  jurisdiction  of 
New  York,  subject  to  the  exclusive  riglit 
of  the  property  in  New  Jersey,  and  the 
limited  jurisdiction  and  authority  con- 
ferred   by    the    paragraphs     summed      up 

*  *  *   the   dominant   fact   is   the   establish- 


1160 


Vol.  XI.  TAXATION.  388-416 

c.  Reseri'ation  of  Porto  Rico  Harbor  Areas  and  Waters  in  Favor  of  the 
United  States. — Jurisdiction  for  taxing  purposes  of  the  harbor  areas  and  navi- 
gable waters  within  the  defined  limits  of  Porto  Rico  was  not  denied  the  insular 
government  by  the  reservation  of  such  areas  and  waters  in  favor  of  the  United 
State'^,  which  must  be  construed  as  proprietary  reservations  only,  and  not  as  lim- 
itations upon  the  exercise  of  government.^^^^ 

D.  01  the  States — l.'Ix  Gkxeral — b.  .Xatiire  and  Extent. — Means  and 
Instrumentalities  of  Federal  Government. — See  note  63. 

E.  Of  Municipal  Corporations — 1.  Ix  Gexeral — h.  Misappropriation  of 
Special  Tax. — The  levy  and  collection  of  taxes  by  a  city  to  satisfy  outstanding 
indebtedness  of  the  metropolitan  police  board,  contracted  on  the  faith  of  the  ex- 
ercise of  the  taxing  power  for  its  payment,  do  not  exhaust  the  city's  power  in 
the  i:remises,  where  the  city  has  applied  the  taxes  to  other  purposes,  and  has 
failed  to  turn  them  over,  upon  demand,  to  the  board  or  its  representative.^^ 

IV.  Subjects  of  Taxation. 

A.  General  Principles — 2.  Jurisdicttox  axd  v^itus — a.  Necessity  f<,i-  Ju- 
risdiction—  (2)  Xonrcsidency  of  Ozvner  Docs  X ot  Prevent  Taxation. — See 
note  14. 

b.  Situs  as  Ddermining  Taxahil'd\  —  (1)  Of  R.eal  Estate. — See  ante,  "Ter- 
ritorial Limitations  of  Power,"  III,  A,  4. 

(2)  Of  Personal  Property — (a)  In  General. — In  the  eye  of  the  law,  personal 
property,  for  most  purposes,  has  no  locality.  *  ^^  =^  In  a  qualified  sense  it  ac- 
companies the  owner  wherever  he  goes,  and  he  may  deal  with  it  and  dispose  of 
it  according  to  the  law  of  his  domicile.  But  this  doctrine  is  not  allowed  to  stand 
in  the  way  of  the  taxing  power  in  the  locality  where  the  property  has  its  actual 
situs,  and  the  requisite  legislative  jurisdiction  exists.  Such  property  is  undoubt- 
edly liable  to  taxation  there  in  all  respects  as  if  the  proprietor  were  a  resident 
of  the  same  locality.  The  personal  property  of  a  resident  at  the  place  of  his  resi- 
dence  is  liable  to  taxation,  although  he  has  no  intention  to  become  domiciled 

ment  of  the  boundar}-  line.  The  boundar}-  388-89c.  Reservation  of  Porto  Rico 
line  is  the  line  of  sovereignty,  and  the  es-  harbor  areas  and  waters  in  favor  of 
tablishment  of  it  is  not  satisfied,  but  is  United  States. — Gromer  z\  Standard 
contradicted  by  the  suggestion  that  the  Dredging  Co.,  224  U.  S.  362,  56  L.  Ed. 
agreement  simply  gives  ownership  of  the  801,  32  S.  Ct.  499,  so  held  as  reservation 
land  under  water  on  the  New  Jersey  side  mode  by  Act  of  April  12,  1900  (31  Stat, 
to  that  state  as  a  private  owner  of  land  at  L.  77,  80,  chap.  191),  §  13,  and  Act  of 
lying  within  the  state  of  New  York.  On  July  1.  1902  (32  Stat,  at  L.  731,  ch.  1363). 
the  contrary,  the  provision  as  to  ex-  404-63.  The  requirement  that  receipts 
elusive  right  of  property  in  the  compact  (^r  the  payment  of  the  federal  internal 
between  states  is  to  be  taken  primarily  revenue  tax  upon  the  business  of  selling 
to  refer  to  ultimate  sovereign  rights,  m  intoxicating  liquors  be  registered  and 
pursuance  of  the  settlement  ot  the  tern-  pubHshed  at  the  holder's  expense,  which 
tonal  limits,  which  was  declared  to  be  jg  m^de  by  Act  N.  D.  March  13,  1907 
one  purpose  of  the  agreement,  and  is  not  (l^ws  1907.  c.  189),  is  not  a  valid  exer- 
to  be  confined  to  the  assertion  and  recog-  cise  of  the  police  power,  but  is  invalid, 
nition  of  a  pnvate  claim,  which,  for  all  ^g  placing  a  direct  burden  upon  the  tax- 
that  appears,  may  have  been  inconsistent  j^g  p^^^^  of  the  federal  government, 
with  titles  already  accrued,  and  which  Judgment  (1907),  113  N.  W.  371,  16  N. 
would  lose  significance  the  moinent  that  d_  347^  reversed.  Flaherty  v.  Hanson, 
New  Jersey  sold  the  land.  Central  R.  315  y.  S.  515,  54  L.  Ed.  307,  30  S.  Ct. 
Co.    V.   Jersey    City,    209    L.    S.    473,    52    L.  ^79 

Ed.   896,  28   S.   Ct.   592.  !,io  ,        u    ,  ^t  r-.   1  01-    t- 

'Boundary  means  sovereignty,  since,  in  ^  ^l^-la    Huberc  f    New  Orleans,  21o   L. 


modern   times,   sovereignty   is   mainly   tcr- 


S.   170,  54  L.   Ed.  144,  30  S.   Ct.  40. 


ritorial,  unless  a  different  meaning  clearly  416-14.    Southern  Pac.   Co.  v.  Kentucky, 

appears."      Central   R.   Co.  z'.   Jersey  City,  222   U.   S.   63,   56   L.    Ed.   90,   32   S.   Ct.   13, 

209    U.    S.    473,    52    L.    Ed.    896,    28    S.    Ct.  followmg  St.  Loui.-^  z:  Ferry  Co.,  11  Wall. 

592.  423,  430,  20  L.   Ed.   192. 

1161 


416-419 


TAXATION. 


Vol.  XI. 


there.^^^  The  ancient  maxim  which  assigns  to  tangibles,  as  well  as  intangi- 
bles, the  situs  of  the  owner  for  purposes  of  taxation,  has  its  foundation  in  the 
protection  which  the  owner  receives  from  the  government  of  his  residence;  and 
the  exception  to  the  principle  is  based  upon  its  theory  that  if  the  owner,  by  his 
own  act,  gives  to  such  property  a  permanent  location  elsewhere,  the  situs  of  the 
domicile  must  yield  to  the  actual  situs  and  resulting  dominion  of  another  gov- 
ernment.^^'^ 

(b)  Of  Tangible  Personal  Property — aa.  In  General. — Taxation  of  tangible 
personal  property  permanently  located  elsewhere  than  in  the  state  of  the  owner's 
domicile  iDy  the  law  of  the  domicile  of  the  owner  would  be  a  denial  of  due  proc- 
ess of  law,  and  beyond  the  power  of  the  state, ^^^  but  the  state  of  the  domicile  of 
the  owner  has  power  to  tax  tangibles  which  have  not  acquired  an  actual  situs 
elsewhere. '^^'^ 

dd.  Ships  and  Shipping. — See  note  22.  The  general  rule  has  long  been  settled 
as  to  vessels  plying  between  the  ports  of  different  states,  engaged  in  the  coast- 
wise trade;  that  the  domicile  of  the  owner  is  the  situs  of  a  vessel  for  the  pur- 
pose of  taxation,  wholly  irrespective  of  the  place  of  enrollment,  subject,  how- 
ever, to  the  exception  that  where  a  vessel  engaged  in  interstate  commerce  has 
acquired  an  actual  situs  in  a  state  other  than  the  place  of  the  domicile  of  the 
owner,  it  may  there  be  taxed  because  within  the  jurisdiction  of  the  taxing  au- 
thority, being  property  which  had  become  incorporated  into  the  tangible  prop- 
erty within  her  territory. ^-'^ 


416-16a.  Southern  Pac.  Co.  v.  Ken- 
tucky, 222  U.  S.  63,  36  L.  Ed.  96,  32  S. 
Ct.    13. 

416-16b.  Southern  Pac.  Co.  v.  Ken- 
tucky, 222  U.  S.  63,  56  L.  Ed.  96.  32  S. 
Ct.    13. 

417-18a.  Southern  Pac.  Co.  i-.  Ken- 
tucky, 199  U.  S.  194,  195,  50  L.  Ed.  150,  26 
Ct.  13,  approving  and  distinguisiiing 
Union  Refrigerator,  etc.,  Co.  v.  Kentucky, 
199  U.  S.   194,  50  L.   Ed.  150,  26   S.  Ct.  36. 

In  Union  Refrigerator,  etc.,  Co.  v.  Ken- 
tucky, 199  U.  S.  194,  195,  50  L.  Ed.  150,  26 
S.  Ct.  36.  The  question  for  decision  in  that 
case,  as  stated  in  the  forepart  of  the  opin- 
ion, was  "whether  a  corporation  or- 
ganized under  the  law  of  Kentucky  is 
subject  to  taxation  upon  its  property 
permanently  located  in  other  states,  and 
employed  there  in  the  prosecution  of  its 
l)usiness."  The  property  in  question  was 
railroad  cars  a  kind  of  movables  ob- 
viously capalile  of  acquiring  a  permanent 
location  other  than  that  of  the  owner. 
The  judgment  of  the  court  was  that  the 
taxation  of  such  property  so  perma- 
nently located  elsev/here  by  the  law  of  the 
domicile  of  the  owner  would  be  a  denial 
of  due  process  of  law,  by  the  state.  The 
principle  was  not  a  new  one,  and  was  de- 
clared to  rest  upon  repeated  judgments 
of  this  court,  the  cases  of  Railroad  Co.  v. 
Jackson,  7  Wall.  262,  19  L.  Ed.  88;  Dela- 
ware, etc.,  R.  Co.  V.  Pennsylvania,  198 
U.  vS.  341,  49  L.  Ed.  1077,  25  S.  Ct.  669; 
Louisville,  etc..  Ferry  Co.  v.  Kentucky, 
188  U.S.  385,  47  L.  Ed.  513,  23  S.  Ct. 
463,  being  cited  as  precedents.  Southern 
Pac.  Co.  V.  Kentuckv,  232  U.  S.  63,  56  L. 
Ed.    96,   32    S.    Ct.    13. 


417-18b.  Southern  Pac.  Co.  v.  Ken- 
tucky, 222  U.  S.  63,  56  L.  Ed.  96,  32  S. 
Ct.   13. 

419-22.  Southern  Pac.  Co.  v.  Kentucky, 
222   U.   S.  63,  56  L.  Ed.  96,  32  S.  Ct.   13. 

419-22a.  Southern  Pac.  Co.  v.  Ken- 
tucky, 222  U.  S.  63,  56  L.  Ed.  96,  32  S. 
Ct.  13,  following  Old  Dominion  Steam- 
ship Co.  V.  Virginia,  198  U.  S.  299,  49  L. 
Ed.  1059,  25  S.  Ct.  686;  Ayer,  etc..  Tie  Co. 
V.  Kentucky,  202  U.  S.  409,  50  L.  Ed.  1082, 
26  S.  Ct.  679,  and  distinguishing,  Union 
Refrigerator,  etc.,  Co.  v.  Kentucky,  199 
U.   S.   194,   50   L.   Ed.   150,   26   S.   Ct.  36. 

"The  persistence  with  which  this  court 
has  declared  and  enforced  the  rule  of 
taxibility  at  the  domicile  of  the  owner  of 
vessel  property,  when  it  did  not  appear 
that  the  vessels  had  an  actual  situs  else- 
where, is  illustrated  by  the  cases  of  Hays 
V.  Pacific  Mail  Steamship  Co.,  17  How. 
596,  15  L.  Ed.  254:  Morgan  v.  Parham, 
16  Wall.  471,  21  L.  Ed.  303;  St.  Louis  v. 
Ferry  Co.,  11  Wall.  423,  20  L.  Ed.  192;  Old 
Dominion  Steamship  Co.  v.  Virginia,  198 
U.  S.  299,  49  L.  Ed.  1059,  25  S.  Ct.  686,  and 
the  case  of  Ayer,  etc..  Tie  Co.  v.  Ken- 
tucky, 202  U.  S.  409,  50  L.  Ed.  1082,  26 
S.  Ct.  679."  Southern  Pac.  Co.  v.  Ken- 
tucky, 222  U.  S.  63,  56  L.  Ed.  96,  32  S. 
Ct.   13. 

"To  lay  down  a  principle  that  vessel 
property  has  no  situs  for  purposes  of 
taxation  other  than  that  of  actual  perma- 
nent location  would  introduce  elements 
of  uncertainty  concerning  the  situs  of 
such  property  not  presented  by  other 
kinds    of    movable    property."      Southern 


1162 


Vol.  XL 


TAXATION. 


419 


Due  Process  of  Law. — Making  the  domicile  of  the  corporate  owner  of 
ocean-going  steamships  the  situs  for  taxation,  where  such  vessels  have  acquired 
no  actual  situs  elsewhere,  is  not  inconsistent  with  the  due  process  of  law  guar- 
anteed by  the  fourteenth  amendment  to  the  federal  constitution.-^'^ 

Right  to  Selection  of  Home  Port. — The  right  of  the  owner  to  select  the 


Pac.  Co.  V.  Kentucky,  222  U.   S.  63.  56  L. 
Ed.   96,  32   S.   Ct.   13. 

It  is  one  thing  to  find  that  a  movable, 
such  as  a  railway  car,  a  stock  of  mer- 
chandise, or  a  herd  of  cattle,  has  become 
a  part  of  the  permanent  mass  of  prop- 
erty in  a  particular  state,  and  quite  an- 
other to  attribute  to  a  seagoing  ship  an 
actual  situs  at  any  particular  port  into 
which  it  goes  for  supplies  or  repairs,  or 
for  the  purpose  of  taking  on  or  discharg- 
ing cargo  or  passengers.  A  ship  is  not 
intended  to  stay  in  port,  but  to  navigate 
the  seas.  Its  stay  in  port  is  a  mere  in- 
cident of  its  voyage,  and  to  determine 
that  it  has  acquired  an  actual  situs  in  one 
port  rather  than  another  would  involve 
such  grave  uncertainty  as  to  result  often 
in  an  entire  escape  from  taxation.  South- 
ern Pac.  Co.  V.  Kentttcky,  222  U.  S.  63,  56 
L.   Ed.  96,  32  S.  Ct.   13. 

"This  court,  in  Hays  v.  Pacific  Mail 
Steamship  Co.,  IT  How.  596,  15  L.  Ed. 
254,  said  upon  this  subject:  'Whether 
the  vessel,  leaving  her  home  port  for 
trade  and  commerce,  visits,  in  the  course 
of  her  voyage  or  business,  several  ports, 
or  confines  her  operations  in  the  carry- 
ing trade  to  one,  are  questions  that  will 
depend  upon  the  profitable  returns  of  the 
business,  and  will  furnish  no  more  evi- 
dence that  she  has  become  a  part  of  the 
personal  property  within  the  state,  and 
liable  to  taxation  at  one  port  than  at  the 
others.  She  is  within  the  jurisdiction  of 
all  or  any  one  of  them  temporarily,  and 
for  a  purpose  wholly  excluding  the  idea 
of  permanently  abiding  in  the  state,  or 
changing  her  home  port.'  "  Southern 
Pac.  Co.  7'.  Kciituckv,  222  U.  S.  63.  56  L. 
Ed.   96,   32    S.    Ct.   13. 

In  Hays  v.  Pacific  Mail  Steamship  Co., 
17  How.  596,  599.  15  L.  Ed.  254,  the'couit 
said:  "And  so  far  as  respects  the  porls 
and  harbors  within  the  United  States, 
they  are  entered  and  cargoes  discharged 
or  laden  on  board,  independently  of  any 
control  over  them,  except  as  it  respects 
such  municipal  and  sanitary  regulations 
of  the  local  authorities  as  are  not  incon- 
sistent with  the  constitution  and  laws  of 
the  general  government,  to  v/hich  be- 
longs the  regulation  of  commerce  with 
foreign  nations  and  between  the  states." 
Southern  Pac.  Co.  v.  Kentucky,  222  U.  S. 
63,  56  L.  Ed.  96,  32  S.  Ct.  13. 

"In  Hays  v.  Pacific  Mail  Steamship 
Co.,  17-  How.  596,  15  L.  Ed.  254,  it  ap- 
peared that  the  ships  of  the  company 
were    the   property   of  a    New   York   cor- 


poration, and  that  they  were  registered 
at  the  port  of  New  York,  where  the  capi- 
tal represented  by  them  was  assessed  for 
taxation.  They  were  regularly  and  con- 
tinuously employed  on  the  Pacific  coast, 
and  were  refitted  and  repaired  from  time 
to  time  at  Benicia,  in  the  state  of  Cali- 
fornia. Concerning  these  ships,  which 
the  state  of  California  sought  to  tax, 
upon  the  theory  that  they  had  an  actual 
situs  in  that  state,  this  court  said:  'These 
ships  are  engaged  in  the  transportation 
of  passengers,  merchandise,  etc.,  between 
the  city  of  New  York  and  San  Francisco, 
by  the  way  of  Panama,  and  between  San 
Francisco  and  different  ports  in  the  ter- 
ritory of  Oregon.  They  are  thus  en- 
gaged in  the  business  and  commerce  of 
the  country,  upon  the  highway  of  na- 
tions, touching  at  such  ports  and  places 
as  these  great  interests  demand,  and 
which  hold  out  to  the  owners  sufficient 
inducements  by  the  profits  realized  or 
expected  to  be  realized.'  "  Southern  Pac. 
Co.  7'.  Kentucky.  222  U.  S.  63,  56  L.  Ed. 
96.   32   S.    Ct.    13. 

Greater  delay  in  one  port  than  others. 
— "It  may  be  that  the  course  of  trade  or 
other  circumstances  might  not  occasion 
as  great  a  delay  in  other  ports  on  the 
Pacific  as  at  the  port  of  San  Francisco. 
But  this  is  a  matter  accidental,  depend- 
ing upon  the  amount  of  business  to  be 
transacted  at  the  particular  port,  the  na- 
ture of  it,  necessary  repairs,  etc.,  which 
m  no  respect  can  effect  the  question  as 
to  the  situs  of  the  property,  in  view  of 
tlie  right  of  taxation  by  the  state."  South- 
ern Pac.  Co.  V.  Kentucky,  222  U.  S.  63, 
56  E.   Ed.   96,   32   S.   Ct.   13. 

Number  of  ports  visited. — "Whether 
the  vessel,  leaving  her  home  port  for 
trade  and  commerce,  visits,  in  the  course 
of  her  voyage  or  business,  several  ports, 
or  confines  her  operations  in  the  carry- 
ing trade  to  one,  are  questions  that  will 
depend  upon  the  profitable  returns  of  the 
business,  and  will  furnish  not  more  evi- 
dence that  she  has  become  a  part  of  the 
personal  property  within  the  state,  and 
liable  to  taxation  at  one  port  than  at  the 
others.  She  is  within  tlie  jurisdiction  of 
all  or  any  one  of  them  temporarily,  and 
for  a  purpose  wholly  excluding  the  idea 
of  permanently  abiding  in  the  state,  or 
changing  her  home  port."  Southern  Pac. 
Co.  V.  Kentucky,  222  U.  S.  63,  56  L.  Ed. 
96,  32   S.  Ct.  13. 

419-22b.  Due  process  of  law. —  South- 
ern Pac.  Co.  7'.  Kentuckv,  222  U.  S.  63, 
56   L.   Ed.  96.   32   S.   Ct.   1.3". 


1  ]  63 


419 


TAXATION 


Vol.  XT. 


name  of  the  place  of  enrollment,  the  place  where  the  vessel  was  built,  or  the  place 
where  the  owner  resides,  as  the  place  to  be  marked  upon  the  stern  as  the  home 
port,  does  not  confer  the  arbitrary  right  upon  the  owner  to  select  a  place  for  the 
taxation  of  his  vessel.^^^'  Since,  therefore,  an  artificial  situs  for  purposes  of  tax- 
ation is  not  acquired  by  enrollment  nor  by  the  marking  of  a  name  upon  the  stern, 
the  taxable  situs  must  be  that  of  the  domicile  of  the  owner,  since  that  is  the  situs 
assigned  to  tangibles  where  an  actual  situs  has  not  been  acquired  elsewhere.--'* 


419-22C.  Southern  Pac.  Co.  f.  Ken- 
tucky, 222  U.  S.  63,  56  L.  Ed.  96,  32  S. 
Ct.  13,  affirming  judgment  (1909),  Com- 
monwealth V.  Southern  Pac.  Co.,  120  S. 
W.  311,  134  Ky.  417,  20  Ann.  Cas.  965,  so 
holding  as  to  right  given  the  owner  by 
Rev.  St.,  §§  4141,  4178  (U.  S.  Comp.  St.), 
1901,  pp.  2808,  2830,  as  amended  by  Act 
June   23,   1874,   c.   467,   18   St.   252. 

"The  owner  has  no  power  to  give  his 
vessel  a  taxable  situs  by  the  arbitrary 
selection  of  a  home  port  which  is  neither 
his  domicile  nor  the  domicile  of  actual 
situs.  St.  Louis  v.  Ferry  Co.,  11  Wall. 
423,  20  L.  Ed.  192;  Old  Dominion  Steam- 
ship Co.  V.  Virginia,  198  U.  S.  299,  49  L. 
Ed.  1059,  25  S.  Ct.  686;  Ayer,  etc.,  Tie  Co. 
v.  Kentucky,  202  U.  S.  409,  50  L.  Ed. 
1082,  26  S.  Ct.  679."  Southern  Pac.  Co. 
V.  Kentucky,  222  U.  S.  63,  56  L.  Ed.  96, 
32   S.    Ct.   13. 

419-22d.  Southern  Pac.  Co.  v.  Ken- 
tucky, 222  U.  S.  63,  56  L.  Ed.  96.  32  S. 
Ct.   13. 

Ocean-going  steamships  owned  by  a 
Kentucky  corporation,  and  plying  be- 
tween the  ports  of  New  York  and  New 
Orleans,  New  York  and  Galveston,  and 
New  Orleans  and  Havana,  are  taxable  in 
Kentucky,  the  domicile  of  the  owner,  al- 
though the  vessels  are  enrolled  at  the 
port  of  New  York,  and  carry  the  words 
"New  York''  on  their  sterns;  these  facts 
not  being  sufficient  to  give  the  vessels 
an  actual  situs  in  New  York.  Southern 
Pac.  Co.  V.  Kentucky.  222  U.  S.  63,  56  L. 
Ed.   96,   32   S.   Ct.   3  3. 

"In  Ayer,  etc.,  Tie  Co.  v.  Kentucky, 
202  U.  S.  409,  50  L.  Ed.  1082.  26  S.  Ct. 
679.  the  boats  there  in  question  were  en- 
gaged in  interstate  commerce  between 
the  ports  of  Kentucky,  Illinois.  Missis- 
sippi. Tennessee,  and  Arkansas.  They 
are  owned  by  an  Illinois  corporation 
which  has  its  principle  office  at  Chicago, 
where  taxes  had  been  paid  under  the  lav.'s 
of  the  state,  both  to  the  state  and  the 
city.  Brookfield,  in  the  extreme  southern 
part  of  the  state,  and  upon  the  Ohio  river. 
was  a  port  of  call,  and  an  office  was  prob- 
ably maintained  there,  it  being  a  place 
where  cargoes  were  often  discharged. 
The  general  manager  of  the  transporta- 
tion department  of  the  company  resided 
in  Kentuck3\  and  the  boats  of  the  fleet 
were  enrolled  at  Paducah  in  that  state, 
and  bore  upon  their  sterns  the  name 
'Paducah,'  as  the  home  port  or  port  of 
hail  under  the   statute.     Paducah   was  the 


place  where  the  boats  received  their  sup- 
plies and  repairs,  where  seamen  were 
hired  and  laid  up  when  not  in  use,  though 
it  seeins  that  Paducah  was  not  a  point 
where  cargo  was  either  received  or  dis- 
charged. Upon  this  state  of  facts  it  was 
held  that  the  boats  of  the  company  had 
neither  such  artificial  situs  through  en- 
rollment or  the  marking  upon  their 
sterns,  not  such  actual  situs  by  reason 
of  the  temporary  stoppage  at  Paducah 
and  other  ports  of  the  state,  as  to  draw 
to  it  jurisdiction  for  purposes  of  taxa- 
tion."' Southern  Pac.  Co.  v.  Kentucky, 
222   U.   S.   63,   56  L.   Ed.   96,  32   S.   Ct.   13. 

"In  St.  Louis  V.  Ferry  Co.,  11  Wall. 
423,  20  L.  Ed.  192  *  *  *.  the  steamboat  in 
question  was  owned  by  an  Illinois  cor- 
poration, which  had  its  principal  office 
within  that  state.  They  were  enrolled  at 
the  port  of  St.  Louis,  where  the  prin- 
cipal officers  of  the  companj^  resided,  and 
where  an  office  was  maintained,  in  which 
the  corporate  meetings  were  held,  and 
where  the  corporate  seal  was  kept.  That 
they  were  enrolled  at  St.  Louis,  the  court 
said,  'throws  no  light  upon  the  subject 
of  our  inquiry  *  *  =^.  The  solution  6i  the 
question,  where  her  home  port  is,  when 
it  arises,  depends  wholly  upon  the  lo- 
cality of  her  owner's  residence,  and  not 
upon  the  place  of  her  enrollment.'  The 
steamers  were  taxed  in  Illinois,  and 
were  held  not  subject  to  taxation  in  St. 
Louis.  Upon  this  subject  the  court  said: 
'The  owner  was.  in  the  eye  of  the  law,  a 
citizen  of  that  state,  and  from  the  in- 
herent law  of  its  nature,  could  not  emi- 
grate or  become  a  citizen  elsewhere.  As 
the  boats  were  laid  up  on  the  Illinois 
shore  when  not  in  use,  and  the  pilots  and 
engineers  who  ran  them  lived  there,  that 
locality,  under  the  circumstances,  must  be 
taken  to  be  their  home  port.  They  did 
not  so  abide  within  the  city  as  to  become 
incorporated  with  and  form  a  part  of  its 
personal  propert3^  Hence  they  were  be- 
yond the  jurisdiction  of  the  authorities 
by  which  the  taxes  were  assessed,  and 
the  validity  of  the  taxes  can  not  l)e  main- 
tained.'" Southern  Pac.  Co.  v.  Ken- 
tucky. 222  U.  S.  63,  56  L.  Ed.  96,  32  S. 
Ct.  13. 

"In  ^Morgan  f.  Parham,  16  Wall.  471, 
21  I,.  Ed.  303,  the  vessel  was  owned  and 
registered  in  New  York,  but  enrolled  as 
a  coaster  at  Mobile,  where  her  master 
resided,  and  where  there  was  an  office 
and  agent  under  tlie  control  of  a  superior 


1164 


\'ol.  XL 


TAX  AT  I  OX. 


419-420 


Inability  of  Vessel  to  Reach  Domicile  of  Owner.— The  inability  of  ves- 
sels, by  reason  of  draught,  or  the  depth  of  water,  to  go  to  the  situs  of  the  domi- 
cile of  the  owner,  does  not  prevent  their  taxation  at  that  domicile,  where  they 
have  gained  no  actual  situs  elsewhere. --*' 

Use  in  Performance  of  Dredging  Contract  with  the  United  States. — 
The  use  of  machinery  and  boats  in  tlie  performance  of  a  dredging  contract  with 
the  United  States  does  not  exempt  them  from  local  taxation.--^ 

(c)  Of  Intangible  Personal  Property — aa.  In  General — Debts  and  Credits. — 
The  difficulties  attendant  upon  the  taxation  of  intangible  property  elsewhere  than 
at  the  domicile  of  the  owner  have  largely  preserved  the  domicile  of  the  owner 
as  the  proper  situs  for  purposes  of  taxation.-^*^  It  is  property  within  the  state, 
which  the  state  may  tax  at  its  discretion. -'^^ 

Debts  Due  Residents  Secured  on  Property  in  Another  State. — See 
note  27 . 

Credits  Held  within  State  for  Nonresident  Owner. — See  notes  28,  29. 


agent  residing  at  Xew  Orleans,  who  em- 
ployed and  paid  the  other  officers  and 
men  of  the  ships.  There  was  also  a  wharf 
at  Mobile,  controlled  and  occupied  by 
the  vessels  of  the  line.  The  vessels  were 
engaged  in  commerce  between  Mobile 
and  New  Orleans,  and  have  been  so  con- 
tinuously for  several  years.  The  court 
held  that  the  state  of  Alabama  had  no 
jurisdiction  over  the  vessels  for  the  pur- 
pose of  taxation,  for  the  reason  that  they 
had  not  become  incorporated  into  the 
personal  property  of  that  estate,  but  were 
there  temporarily  only,  and  that  they 
were  engaged  in  lawful  commerce  be- 
tween the  states,  and  their  situs  at  tlie 
home  port  of  New  York,  where  they  be- 
longed, and  where  their  owners  were  li- 
able to  be  taxed  for  their  value."  South- 
ern Pac.  Co.  V.  Kentucky,  222  U.  S.  63, 
56  L.   Ed.  96,  32  S.  Ct.  13. 

419-22e.  Southern  Pac.  Co.  v.  Ken- 
tuckv,  222  U.  S.  63,  56  L.  Ed.  96,  32  S. 
Ct.    13. 

419-22f.  Use  in  performance  of  dredg- 
ing contract  with  the  United  States. — 
Gromer  v.  Standard  Dredging  Co.,  224 
U.  S.  362,  56  L.  Ed.  801,  32  S.  Ct.  499,  so 
held  as  to  machinery  boats  so  used  in  the 
harbor  of  San  Juan,   Porto  Rico. 

419-25a.  Southern  Pac.  Co.  v.  Ken- 
tucky, 222  U.  S.  63,  56  L.  Ed.  96,  32  S. 
Ct.   13. 

419-26a.  Negotiable  bills  and  notes. — 
Selliger  v.  Kentucky.  213  U.  S.  200,  53  L. 
Ed.  761,  29  S.  Ct.  449,  citing  Buck  v. 
Beach,  206  U.  S.  392,  413,  51  L.  Ed.  1106, 
27  S.  Ct.  712. 

"Bonds  can  be  taxed  where  they  are 
permanently  kept,  because,  by  a  notion 
going  back  to  very  early  law,  the  obliga- 
tion is,  or  originally  was,  inseparable 
from  the  paper  or  parchment  which  ex- 
pressed it."  Selliger  z'.  Kentucky,  213  U. 
S.   200,    53    L.    Ed.    761,    29    S.    Ct.    449. 

419-27.  Debts  due  residents  secured  on 
property  in  another  state. — "In  Kirtland 
V.  Hotchkiss.  100  U.  S.  491,  25  L.  Ed.  558, 


it  was  held  that  the  federal  constitution 
does  not  prohibit  a  state  froin  taxing  her 
own  citizens  upon  bonds  belonging  to 
them,  although  they  were  made  by 
debtors  resident  in  other  states  and 
secured  by  mortgage  on  real  estate  there 
situated.  The  sole  inquiry  was  with  re- 
spect to  the  validity  of  the  statute  of 
Connecticut,  where  the  creditor  was 
domiciled."  Orient  Ins.  Co.  f.  Board,  221 
U.   S.  358,  55  L.   Ed.  769,  31  S.   Ct.  554. 

The  court  said  in  New  Orleans  v. 
Stempel,  175  U.  S.  309,  44  L.  Ed.  174,  20 
S.  Ct.  110,  in  referring  to  Kirtland  v. 
Hotchkiss,  100  U.  S.  491,  25  L.  Ed.  558. 
"It  was  assumed  that  the  situs  of  such 
intangible  property  as  a  debt  evidenced 
by  bond  was  at  the  domicile  of  the 
owner.  There  was  no  legislation  attempt- 
ing to  set  aside  that  ordinary  rule  in 
respect  to  the  matter  of  situs.  On  the 
contrary,  the  legislature  of  the  state  of 
Connecticut,  from  which  the  case  came, 
plainly  reaffirmed  the  rule,  and  the  court 
in  its  opinion  summed  up  the  case  in 
these  words  (p.  499):  'Whether  the 
state  of  Connecticut  shall  measure  the 
contribtition  which  persons  resident 
within  its  jurisdiction  shall  make  by  way 
of  taxes,  in  return  for  the  protection  it 
affords  them,  by  the  value  of  the  credits, 
choses  in  action,  bonds,  or  stocks  which 
they  may  own  (other  than  such  as  the 
exempted  or  protected  from  taxation  un- 
der the  constitution  and  laws  of  the 
United  States),  is  a  matter  which  con- 
cerns only  the  people  of  that  state,  with 
which  the  federal  government  can  not 
rightfully  interfere.'  See,  also,  Kidd  v. 
Alabama,  188  U.  S.  730,  47  L.  Ed.  669,  23 
S.  Ct.  401."  Orient  Ins.  Co.  v.  Board.  221 
U.    S.   358,   55   L.   Ed.   769,   31   S.    Ct.   554. 

420-28.  Credits  held  within  state. — 
Orient  Ins.  Co.  v.  Board,  221  U.  S.  358, 
55  L.  Ed.  769,  31  S.  Ct.  554,  quoting 
Metropolitan  Life  Ins.  Co.  v.  New  Or- 
leans, 205  U.  S.  395,  402,  51  L.  Ed.  853, 
27  S.  Ct.  499,  and  Blackstone  v.  Miller, 
188  U.  S.  189,  47  L.  Ed.  439,  23  S.  Ct.  277; 


1165 


420 


TAXATION. 


Vol.-  XI. 


The  jurisdiction  of  the  state  of  his  domicile,  over  the  creditor's  person,  does  not 
exclude  the  power  of  another  state  in  which  he  transacts  his  business,  to  lay  a 
tax  upon  the  credits  there  accruing  to  him  against  resident  debtors,  and  thus  to 
enforce  contribution  for  the  support  of  the  government  under  whose  protection 
his  affairs  are  conducted.  The  jurisdiction  of  the  latter  state  rests  upon  con- 
siderations which  are  more  fundamental  than  that  notes  have  been  given,  or  that 
the  credits  were  evidenced  in  any  particular  manner. ^^^  The  legal  fiction  ex- 
pressed in  the  maxim  mobilia  sequuntur  personam  yields  to  the  fact  of  actual  con- 
trol elsewhere.  And  in  the  case  of  credits,  though  intangible,  arising  from  a  for- 
eigner's entering  into  business  in  the  state  of  the  debtor's  domicile  the  control 
adequate  to  confer  jurisdiction  may  be  found  in  the  sovereignty  of  the  debtor's 
domicile.  The  debt,  of  course,  is  not  the  property  in  the  hands  of  the  debtor ;  but 
is  an  obligation  of  the  debtor,  and  is  of  value  to  the  creditor,  because  he  may  be 
compelled  to  pay;  and  power  over  the  debtor  at  his  domicile  is  control  of  the 
ordinary  means  of  enforcement. ^s**  The  foreigner  doing  business  can  not  escape 
taxation  upon  his  capital  by  removing  temporarily  from  the  state  evidence  of 
credits  in  the  form  of  notes.  Under  such  circumstances,  they  have  a  taxable 
situs  in  the  state  of  their  origin. 29*= 

Premiums  Due  Foreign  Insurance  Companies. — Premiums  due  a  foreign 
insurance  company  on  open  account,  though  charged  to  the  company's  local  agents 
instead  of  to  the  policy  holders,  may  be  subjected  to  state  taxation  without  con- 
stituting a  taking  of  the  company's  property  without  due  process  of  law.^^*^    The 


Orient  Ins.  Co.  v.  Board,  221  U.  S.  358, 
55  L.   Ed.  769,  31   S.   Ct.   554. 

"When  it  is  said  that  intangible  prop- 
erty, such  as  credits  on  open  account, 
have  their  situs  at  the  creditor's  domicile, 
the  metaphor  does  not  aid.  Being  in- 
corporeal, they  can  have  no  actual  situs. 
But  they  constitute  property;  as  such 
they  must  be  regarded  as  taxable,  and  the 
question  is  one  of  jurisdiction."  Orient 
Ins.  Co.  V.  Board,  221  U.  S.  358,  55  L.  Ed. 
769,    31    S.    Ct.    554. 

420-29.  Loans  by  nonresident. — In 
Metropolitan  Life  Ins.  Co.  z\  New  Or- 
leans, 205  U.  S.  395,  51  L.  Ed.  853,  27  S. 
Ct.  499,  it  was  held  that  those  engaged 
in  the  business  of  lending  money  in  a 
state,  being  nonresidents  of  the  same, 
might  be  taxed  upon  the  capital  em- 
ployed in  such  business,  precisely  as  the 
state  could  tax  the  capital  of  its  own 
citizens.  Burke  v.  Wells,  208  U.  S.  14, 
52   L.    Ed.   370,   28   S.    Ct.    193. 

In  the  case  of  New  Orleans  v.  Stempel, 
175  U.  S.  309,  44  L.  Ed.  174,  20  S.  Ct.  110, 
"It  appeared  that  the  assessed  credits 
were  evidenced  by  notes  secured  by 
mortgages  on  real  estate  in  New  Orleans; 
that  these  notes  and  mortgages  were  in 
that  city,  in  the  possession  of  an  agent, 
who  collected  the  proceeds  and  the  in- 
terest as  it  became  due,  and  deposited 
the  same  in  the  bank  in  New  Orleans  to 
credit  of  the  plaintiff,  the  guardian  of 
infant  owners,  who,  like  herself,  were 
domiciled  in  the  state  of  New  York.  The 
tax  was  sustained."  Orient  Ins.  Co.  v. 
Board,  221  U.  S.  358,  55  L.  Ed.  769,  31 
S.  Ct.  554. 

In    State     Board      v.      Comptoir      Nat. 


D'Escompte,  191  U.  S.  388,  48  L.  Ed.  232, 
24  S.  Ct.  109,  a  foreign  banking  company 
did  business  in  New  Orleans  and  there 
made  loans  through  a  local  agent.  The 
loans  were  made  upon  a  collateral 
security,  the  customer  drawing  his  check, 
which  was  treated  as  an  overdraft  and 
held  as  a  memorandum  of  the  indebted- 
ness. The  court  decided  that  the  credits 
so  evidenced,  created  in  the  Louisiana 
business,  were  taxable  in  that  state. 
Orient  Ins.  Co.  v.  Board,  221  U.  S.  358, 
55    L.    Ed.    769,    31    S.    Ct.    554. 

The  "checks"  in  State  Board  v. 
Comptoir  Nat.  D'Escompte,  191  U.  S. 
388,  48  L.  Ed.  232,  24  S.  Ct.  109,  were 
only  memoranda  of  indebtedness  or 
vouchers.  "While  called  'checks,'  and  so 
referred  to  in  the  record  and  by  the  par- 
ties in  their  dealings,  the  instrument  de- 
livered to  the  Comptoir,  in  form  an 
ordinary  check,  as  though  drawn  for  pay- 
ment on  presentation  from  moneys  de- 
posited, had  no  such  function.  The 
money  was  paid  to  the  customer  upon 
the  security  of  the  collateral,  and  the  so- 
called  check  taken  and  held  as  a  memo- 
randum of  the  indebtedness  to  the 
Comptoir."  Orient  Ins.  Co.  v.  Board, 
221  U.  S.  358,  55  L.  Ed.  769,  31   S.  Ct.  554. 

420-29a.  Orient  Ins.  Co.  v.  Board,  221 
U.  S.  358,  55  L.  Ed.  769.  31  S.  Ct.  554. 

420-29b.  Orient  Ins.  Co.  v.  Board,  221 
U.    S.   358,  55   L.   Ed.  769,   31   S.   Ct.   554. 

420-29C.  Orient  Ins.  Co.  v.  Board,  221 
U.   S.  358,  55  L.  Ed.  769,  31   S.  Ct.   554. 

420-29d.  Orient  Ins.  Co.  v.  Board,  221 
U.  S.  358,  55  L.  Ed.  769,  31  S.  Ct.  554, 
affirming   50   So.   778,   124   La.   872. 

"The  premiums  were  the  consideration 


1166 


Vol.  XI. 


TAXATION. 


420 


premium  accounts  were  not  withdrawn  from  the  constitutional  authority  of  the 
state  either  by  reason  of  the  fact  that  they  were  payable  in  consideration  of  in- 
surance, instead  of  loans  or  goods  sold,  or  by  the  circumstance  that  the  credits 
were  not  evidenced  by  written  instruments.  They  were  none  the  less  enforceable 
credits  arising  in  the  local  business. -^^ 

Loans  to  Policy  Holders  by  Insurance  Foreign  Companies. — Loans 
made  by  foreign  life  insurance  company  to  its  policy  holders,  which,  though 
represented  by  notes,  are  in  fact  charged  against  the  reserve  value  of  the  bor- 
rowers' policies,  under  an  agreement  for  the  extinguishment  of  the  debt  by 
deducting  the  amount  of  the  loans,  with  interest,  from  the  amount  of  any  claim 
under  the  policies,  are  not  taxable  by  the  state  in  which  the  borrowing  policy 
holders  reside. -^^  Where  the  insurance  company  makes  loans,  properly  so 
called,  to  its  policy  holders,  the  tax  is  valid. -^^ 


for  the  insurance  contracts;  they  were 
the  returns  from  the  local  business. 
Charging  the  premiums  to  the  local 
agents  did  not  withdraw  the  credits  ac- 
cruing to  the  corporations  in  the  business 
transacted  within  the  state  from  its  tax- 
ing power."  Orient  Ins.  Co.  v.  Boird. 
221  U.  S.  358,  53  L.  Ed.  769,  31  S.  Ct.  554. 

420-29e.  Liverpool,  etc.,  Ins.  Co.  v. 
Board,  221  U.  S".  346,  55  L.  Ed.  762,  31 
S.  Ct.  550,  affirming  47  So.  415,  122  La.  98. 

State  taxation  of  the  amounts  due  a 
foreign  insurance  company  by  its  policy 
holders  in  the  state  for  premiums  on 
which  credit  of  thirty  and  sixty  days  had 
been  extended  docs  not  take  the  property 
of  the  company  without  due  process  of 
law,  contrary  to  Const.,  amend.  14,  even 
though  such  indebtedness  is  not  evi- 
denced by  written  instruments.  Liver- 
pool, etc..  Ins.  Co.  v.  Board,  221  U.  S. 
346,  55  L.  Ed.  762,  31  S.  Ct.  550,  affirming 
judgment  (1908),  47  So.  415,  122  La.  98. 

"Further,  if  there  had  been  no  note?, 
luit  the  piemium  accounts  had  been  other- 
wise evidenced  by  written  instruments, 
they  would  have  been  equally  taxable." 
Orient  Ins.  Co.  7'.  Board.  221  U.  S.  358, 
55   L.   Ed.   769,  31   S.   Ct.   554. 

"The  credits  would  have  had  no  exist- 
ence save  for  the  permission  of  Louisi- 
ana; they  issued  from  the  business  trans- 
acted under  her  sanction  within  her 
borders;  the  sums  were  payable  by  per- 
sons domiciled  within  the  state,  and  there 
the  rights  of  the  creditors  were  to  be  en- 
forced. If  locality,  in  the  sense  of  sub- 
jection to  sovereign  power,  could  be  at- 
tributed to  these  credits,  they  could  be 
localized  there.  If  as  property,  they  could 
be  deemed  to  be  taxable  at  all,  they  could 
be  taxed  there."  Orient  Ins.  Co.  v.  Board, 
221  U.  S.  358,  55  L.  Ed.  769,  31  S.  Ct.  554. 

"We  are  not  dealing  here  merely  with 
a  single  credit  or  a  series  of  separate 
credits,  but  with  a  business.  The  insur- 
ance company  chose  to  enter  into  the 
business  of  lending  money  within  the 
conducted  under  the  laws  of  the  state, 
state  of  Louisiana,  and  employed  a  local 
agent   to   conduct   that   business.      It   was 


The  state  undertook  to  tax  the  capital  em- 
ployed in  the  business  precisely  as  it 
taxed  the  capital  of  its  own  citizens  in 
like  situation.  For  the  purpose  of  arriv- 
ing at  the  amount  of  capital  actually  em- 
ployed, it  caused  the  credits  arising  out 
of  the  business  to  be  assessed."  Orient 
Ins.  Co.  V.  Board,  221  U.  S.  358,  55  L.  Ed. 
769,  31   S.  Ct.  554. 

420-29f.  Judgment,  Xew  York  Life 
Ins.  Co.  V.  Board  of  Assessors  for  Parish 
of  New  Orleans  (1908),  158  F.  462,  af- 
firmed. Board  v.  New  York  Life  Ins. 
Co.,  216  U.  S.  517,  54  L.  Ed.  597,  30  S.  Ct. 
385. 

"In  Board  v.  New  York  Life  Ins.  Co., 
216  U.  S.  517,  54  L.  Ed.  597.  30  S.  Ct.  385, 
the  so-called  credit  consisted,  in  fact,  of 
a  payment  to  the  policy  holder  of  a  por- 
tion of  the  amount  for  which  the  com- 
pany was  bound  by  its  policy.  It  was 
found  that,  despite  the  fact  that  notes 
were  given,  there  was  no  personal  liabil- 
ity but  simply  a  deduction  in  account.  As 
there  was  no  loan,  there  was  no  credit  to 
be  taxed;  and  a  decree  in  the  circuit  court 
restraining  the  collection  of  the  tax  was 
affirmed."  Orient  Ins.  Co.  v.  Board,  221 
U.   S.  358,  55  L.  Ed.  769,  31  S.  Ct.  554. 

420-29g.  Board  v.  New  York  Life  Ins. 
Co.,  216  U.  S.  517,  54  L.  Ed.  597.  30  S.  Ct. 
385. 

The  case  of  Metropolitan  Life  Ins.  Co. 
V.  New  Orleans,  205  U.  S.  395,  51  L.  Ed. 
853,  27  S.  Ct.  499,  was  one  of  loans  made 
through  the  local  agent  of  the  insurance 
company,  a  New  York  corporation  doing 
business  in  Louisiana,  to  its  policy  hold- 
ers upon  the  security  of  their  policies. 
The  course  of  business  was  that,  on  the 
approval  of  a  loan  at  the  home  office  of 
the  company,  the  company  forwarded  to 
the  agent  a  check  for  the  amount,  with 
a  note  to  be  signed  by  the  borrower.  The 
agent  procured  the  note  to  be  signed,  and 
forwarded  both  note  and  policy  to  the 
home  office.  The  agent  collected  and 
transmitted  the  interest,  and  when  the 
notes  were  paid,  it  was  to  the  agent  to 
whom  they  were  sent  to  be  delivered 
l-iack  to  the  makers.     At  all  other  times. 


nCi', 


420-439  TAXATION.  Vol.  XI. 

Deposits  of  Foreign  Insurance  Company  Solely  for  Transmission  to 
Home  Office. — The  Louisiana  tax  laws  will  not  be  construed  by  the  federal 
courts  as  taxing  bank  deposits  of  a  foreign  life  insurance  company,  made  solely 
for  transmission  to  its  home  office,  and  not  used  or  drawn  against  by  any  one 
in  Louisiana,  in  the  absence  of  any  decision  of  the  Louisiana  supreme  court 
to  that  effect.29^ 

cc.    Corporate  Bonds  Held  Out  of  State. — See  note  31. 

gg.  Credits  of  Foreign  Insurance  Companx. — See  ante,  '"In  General — Debts 
and  Credits,"  IV,  A,  2,  b,   (2),   (c),  aa. 

5.  Application  of  Doctrine  of  Res  Judicata. — Decree  in  Suit  to  En- 
join Taxes. — A  decree  of  a  federal  court,  enjoining  a  state  board  of  valua- 
tion and  assessment  from  assessing  bank  stock  for  taxation,  which  proceeds 
solely  upon  the  ground  that  such  board  is  the  agent  of  the  local  municipalities, 
and  is  therefore  bound  by  the  prior  injunction  decree  obtained  against  a  county 
in  a  suit  to  which  the  board  was  not  a  party,  can  not  conclude  another  county, 
on  any  theory  of  the  dependence  of  the  power  of  the  county  to  collect  taxes 
upon  the  valuation  and  apportionment  made  by  the  boards,  especially  where 
the  state  courts  do  not  adopt  this  theory  of  the  relation  of  the  board  of  valua- 
tion to  the  counties  and  other  municipalities  of  the  state.^^'' 

C.  Corporations  and  Corporate  Stock— 3.  Particular  Kinds  of  Cor- 
porations— a.  Banks  and  Bank  Stock — (1)  Poiver  to  Tax — (c)  State  Taxa- 
tion of  National  Banks — aa.  In  General. — See  note  61.  The  only  taxation  of 
national  banks  contemplated  by  Rev.  St.  \J.  S.,  §  5219  (U.  S.  Comp.  St.  190L 
p.  3502),  is  taxation  on  shares  of   stock  and  real  property. ^^^ 

Methods  of  Taxation  May  Be  Different.— By  §  5219,  Rev.  Stat.,  the  leg- 
islature of  each  state  may,  for  itself,  determine  the  matter  and  method  for 
taxing  shares  in  such  banks,  subject  only  to  the  restrictions  named  therein. ^-^ 

bb.    National  Bank  Shares — (aa)    In  General. — See  notes  64,  65. 

(bb)  Discrimination  Forbidden,  and  What  Constitutes — fff.  Discrimination 
in  Mode  of  Assessment — (ccc)  Deduction  of  Real  Estate  Outside  of  State. — 
See  note  96. 

Tec)    Assessment  to  Bank  Direct  as  Agent  for  Stockholders. — See  note  4. 

the   notes  and  the   policies  securing  them  v.    Owensboro,    173  U.    S.  664,    4.3    L.    Ed. 

were    kept    at    the    home    office    in    New  850.  19  S.  Ct.  537. 

York.      The    tax    was     held  to    be     valid.  427-61a.      First   Nat.    Bank.   v.   Albright, 

Orient  Ins.  Co.  v.  Board,  221  U.  S.  358,  55  208  U.  S.  548.  52  L.  Ed.  614,  28  S.  Ct.  349, 

L.  Ed.  769,  31  S.  Ct.  554.  affirming  86  P.  548. 

420-29h.     Judgment,     New     York     Life  427-62a.  Methods  may  be  different. — Cit- 

Ins.  Co.  f.  Board  of  Assessors  for  Parish  izens    Nat.   Bank    r.  Kentucky.    217  U.    S. 

of  New     Orleans     (1908),   158    F.   462,    af-  443.  54  L.   Ed.  832,  30  S.  Ct.  532. 

firmed.      Board    v.   New    York    Life    Ins.  428-64,  65.   "The   law  does   not   consider 

Co.,  216  U.  S.  517,  54  L.  Ed.  597,  30  S.  Ct.  the    nature    of   the    bank's   investment   not 

385.  taxed  in  fixing  the  value  of  its  stock  (Pal- 

420-31.  "In  State  Tax  on  Foreign-Held  mer  z:  McMahon,  133  U.  S.  660,  33  L.  Ed. 
Bonds,  15  Wall  300,  21  L.  Ed.  179.  *  *  *  772,  10  S.  Ct.  324)."  First  Nat.  Bank  v. 
the  tax  was  on  the  interest  on  bonds  made  Albright,  208  U.  S.  548,  52  L.  Ed.  614,  28 
and  payable  out  of  the  state,  and  issued  to  S.  Ct.  349;  Citizens  Nat.  Bank  v.  Kentucky, 
and  held  by  nonresidents  of  the  state.  217  U.  S.  443,  54  L.  Ed.  832,  30  S.  Ct.  532, 
See  Savings,  etc.,  Soc.  v.  Multnomah  following  Owensboro  Nat.  Bank  v.  Owens- 
County,  169  U.  S.  421,  42  L.  Ed.  803,  18  S.  boro,  173  U.  S.  664,  43  L.  Ed.  850. 
Ct.  392;  New  Orleans  v.  Stempel.  175  U.  437-96.  First  Nat.  Bank  v.  Albright, 
S.  309,  320,  44  L.  Ed.  174,  20  S.  Ct.  110;  208  U.  S.  548,  52  L.  Ed.  614,  28  S.  Ct.  349. 
Blackstone  v.  Miller,  188  U.  S.  189,  206.  439-4.  Assessment  to  bank  direct. — 
47  L.  Ed.  439,  23  S.  Ct.  277."  Orient  Ins.  Citizens  Nat.  Bank  r.  Kentucky,  217  U. 
Co.  7'.  Board,  221  U.  S.  358,  55  L.  Ed.  769,  S.  443.  54  L.  Ed.  832,  30  S.  Ct.  532,  affirm- 
31   S.  Ct.  554.  ing    National    Bank   v.    Commonwealth,    9 

423-39a.     Bank  z'.   Kentucky,   207   U.    S.  Wall.    353,    19  L.    Ed.    701;    Van  Slyke    v. 

258.  52  L.  Ed.  197,  28  S.  Ct.  82.  Wisconsin,    154   U.    S.    581.   20   L.    Ed.   240, 

427-61.      Citizens    Nat.     Bank    v.    Ken-  14  S.  Ct.  1168,  and  Aberdeen  Bank  v.  Che- 

lucky,  217  U.   S.  443,   54  L.   Ed.  832,   30   S.  halis  County,  166  U.  S.  440,  41  L.  Ed.  1069, 

Ct.  532,   following  Owensboro  Nat.   Bank  17  S.  Ct.  629. 

1168 


Vol.  XI. 


TAXATION. 


440 


iii.   Tax  on  Foreign  Held  Shares. — See  post,  "Assessment    of    Back    Taxes 
and  Reassessments,"  VI,  A,  4,  g. 

cc.  Franchise    or   Intangible  Property. — See  note  12. 

dd.  Resisting  Reassessment. — Equity  will  not  enjoin  a  reassessment  of  a 
tax  on  the  stock  and  real  property  of  a  national  bank  because  of  the  apprehen- 
sion that  Rev.  St.  U.  S.,  §  5219  (U.  S.  Comp.  St.  1901,  p.  3502),  will  be  vio- 
lated by  the  assessing  officer  in  making  the  assessment. ^^^ 


440-12.  Citizens  Xat.  Bank  v.  Ken- 
tucky, 2ir  U.  S.  443,  54  L.  Ed.  832,  30  S. 
Ct.  532,  following  Owensboro  Nat.  Bank 
t:  Owensboro,  173  U.  S.  664,  43  L.  Ed. 
850,  19  S.  Ct.  537. 

440-12a.  First  Xat.  Bank  v.  Albright, 
208  U.  S.  548,  52  L.  Ed.  614,  28  S.  Ct.  349, 
affirming  86  P.  548. 

The  bill  alleged  that  the  plaintiff  gave 
the  assessor  a  list  in  which  capital  stock, 
surplus,  and  real  estate  were  lumped  in 
a  single  item  with  a  single  valuation  of 
S90.000.  Thereupon  the  assessor  made  a 
dilYerent  valuation,  lumping  the  capital 
stock  and  valuing  it  at  60  per  cent  of  its 
par  value,  and  giving  separate  figures  for 
the  surplus  and  the  several  parcels  of  real 
estate,  the  total  being  $150,542.  This  was 
affirmed  by  the  territorial  board  on  equal- 
ization on  appeal.  Afterwards  the  plain- 
tiff paid  the  amount  admitted  by  it  to  be 
due,  and  was  sued  for  the  residue;  but 
the  suit  was  dismissed,  the  district  at- 
torney giving  out  that  a  new  assessment 
would  be  made.  It  is  alleged  that  the  as- 
sessor, announced  as  his  inethod  of  valu- 
ation that  all  the  property  except  bank 
property  and  bank  shares  would  be  as- 
sessed at  one  third  of  its  real  value,  but 
that  he  would  assess  the  bank  at  60  per 
cent  of  the  capital  stock  and  surplus  in 
addition  to  their  real  estate;  that  he  did 
as  he  announced,  and  also  assessed  the 
real  estate  without  dediicting  the  value 
"from  the  valuation  of  other  property  as- 
sessed against  said  banks."  Beside  the 
prayer  for  an  injunction,  there  is  another 
that  the  treasurer  and  ex  officio  collector 
be  ordered  to  cancel  the  above-mentioned 
assessment  upon  his  books.  There  was 
a  demurrer,  which  was  overruled  below, 
but  sustained  by  the  supreme  court  of  the 
territory  with  directions  to  dismiss  the 
complaint.  First  X'at.  Bank  z:  Albright, 
208  U.   S.  548,  52   L.  Ed.  614,  28  S.   Ct.  349. 

"The  complaint  admits  that  the  plain- 
tiflf's  return  was  not  in  accordance  with 
the  law,  and  the  supreme  court  of  the 
territory  says  that  both  that  and  the  as- 
sessment were  bad,  and  that  a  reassess- 
ment is  authorized  by  local  law.  We  see 
no  reason  to  reverse  its  decision  upon 
that  point.  If  a  reassessment  is  made, 
that  now  on  the  treasurer's  books  will  be 
disposed  of  and  will  be  no  cloud  upon 
the  plaintiff's  title,  so  that  the  whole  ques- 
tion is  whether  a  reassessment  shall  be 
made.  The  plaintiff's  objection  is  not  the 
technical  one  that  no  reassessment  is  au- 


thorized by  statute,  but  the  substantial 
apprehension  that  the  shares  will  be  taxed 
"at  a  greater  rate  than  is  assessed  upon 
other  moneyed  capital  in  the  hands  of  in- 
dividual citizens,'  contrary  to  the  words 
of  Rev.  Stat.,  §  5219,  U.  S.  Comp.  Stat. 
1901,  p.  3502,  and  that  the  value  of  real 
estate  separately  assessed  and  taxed  will 
not  be  deducted  from  the  valuation  of 
shares,  as  it  is  thought  to  be  implied  by 
that  section  and  required  by  the  territo- 
rial laws  of  1891,  chap.  40  (Comp.  Laws, 
1897,  §  259),  that  it  should  be.''  First 
Xat.  Bank  v.  Albright,  208  U.  S.  548,  52  L. 
Ed.  614,  28   S.   Ct.  349. 

"We  assume  that  such  an  assessment 
of  shares  as  is  apprehended  would  be  in- 
valid under  Rev.  Stat.,  §  5219.  First  X'^at. 
Bank  v.  Chapman,  173  U.  S.  205,  220,  43 
L.  Ed.  669,  19  S.  Ct.  407.  We  assume  that 
it  would  be  invalid  none  the  less  if  dis- 
guised as  a  tax  on  60  per  cent  of  the  par 
value,  if  other  monej^ed  capital  was  uni- 
formly and  intentionally  assessed  at  one- 
third  of  its  actual  value  and  if  60  per  cent 
of  the  par  value  of  the  bank  shares  was 
more  than  one-third  of  their  actual  value. 
Accidental  inequality  is  one  thing,  inten- 
tional and  systematic  discrimination  an- 
other. See,  further,  Ravmond  z'.  Chicago, 
Union  Tract.  Co..  207  U.  S.  20,  52  L.  Ed. 
78,  28  S.  Ct.  7.  We  agree  with  the  plain- 
tiff that  the  only  taxes  contemplated  bj- 
§  5219  are  taxes  on  the  shares  of  stock 
and  taxes  on  the  real  estate.  Owensboro 
X'at.  Bank  v.  Owensboro,  173  U.  S.  664, 
669,  43  L.  Ed.  850,  19  S.  Ct.  537.  Hence, 
while  the  law  does  not  consider  the  na- 
ture of  the  bank's  investments  not  taxed 
in  fixing  the  value  of  its  stock  (Palmer 
z:  Mc^Mahon.  133  U.  S.  660,  33  L.  Ed.  772, 
10  S.  Ct.  324),  it  may  be  argued  consist- 
ently with  the  decisions  that  real  estate 
taxed  to  the  bank,  and  land  out  of  the 
territory,  which  could  not  be  taxed  by  it 
at  all  (Union  Refrigerator,  etc.,  Co.  v. 
Kentucky,  199  U.  S.  194,  50  L.  Ed.  150,  26 
S.  Ct.  36),  are  meant  to  be  deducted  by 
Rev.  Stat.,  §  5219,  and  are  required  to  be 
by  the  territorial  law.  But  we  agree  with 
the  supreme  court  of  the  territory  that 
the  time  for  deciding  these  and  other 
questions  has  not  come.''  First  X'at. 
Bank  z:  Albright.  208  U.  S.  548,  52  L.  Ed. 
614,  28  S.   Ct.  349. 

"The  acceptance  of  what  was  admitted 
to  be  due  created  no  estoppel  to  demand 
more.  There  are  no  such  precise  aver- 
ments in  the  complaint  as  would  warrant 


12  U  S  Enc- 


1169 


444-463  TAXATION.  Vol.  XL 

(d)  Federal  Taxation  of  Banks. — See  post,  "Taxation  of  Circulation,"  IV, 
C,  3,  a,  (2),  (e). 

(2)  Mode  of  Taxation — (e)  Taxation  of  Circulation. — Purpose. — The  half- 
yearly  duty  provided  by  §  5214  was  intended,  among  other  things,  at  least, 
to  create  a  general  fund  for  paying  the  cost  of  engraving  and  printing  the 
circulating  notes  of  national  banking  associations.32a 

Exemption. — A  national  bank  whose  outstanding  circulating  notes  amount 
to  less  than  5  per  cent  of  its  capital  is  not  exempted  from  the  payment  of  the 
half-yearly  duty  imposed  by- Rev.  St.  U.  S.,  §  5214  (U.  S.  Comp.  St.  1901 ,_  p. 
3500),  upon  the  average  amount  of  its  notes  in  circulation,  by  the  provision 
of  §  3411  (page  2248)  that  the  outstanding  circulation  of  any  bank,  associa- 
tion, corporation,  company,  or  person  shall  be  free  from  taxation  when  re- 
duced to  an  amount  not  exceeding  5  per  cent  of  its  capital,  although  the  latter 
section  is  by  §  3417  (page  2251)  expressly  made  applicable  to  national  banking 
associations,  since  it  was  so  made  applicable,  as  clearly  appears  from  the  legis- 
lation from  which  its  provisions  were  drawn,  in  order  to  give  national  banks 
representing  state  banks  the  benefit  of  the  presumption  of  loss  or  inability 
to  retire  the  circulation  of  the  state  bank  when  95  per  cent  thereof  had  been 
actually  retired.^^'' 

j.    Foreign  Corporations. — See  note  66. 

D.  Federal,  State  and  Municipal  Securities — 2.  State  and  Municipal 
Securitii;S. — See  note  76. 

F.  Imports  and  Exports — 2.  By  the  States — b.  Under  Prohibition  to 
States  to  Tax  Imports  and  Exports — (7)  Foreign  Warehouse  Receipts. — A 
state  can  not  tax  German  warehouse  receipts,  valuing  them  at  the  value  of  the 
whisky  they  represent,  where  it  can  not  tax  the  whisky  itself  either  because 
it  was  exported  from  the  United  States  or  because  of  its  situs. ^^^ 

H.  Lands  and  Interests  Therein — 1.  Lands  in  General.— A  tax  on 
special  interests  in  land  is  not  unknown, ^^^  but  the  usual  course  is  to  tax  the 
land  as  a  whole  and  that  seems  to  be  the  way  in  New  York.^^*' 

2.  Public  Lands  of  the  United  States — b.  Public  Lands  Not  Granted. — 
A  state  is  without  power  to  tax  public  lands  of  the  United  States  until  the 
equitable  title  has  passed  from  the  United  States,  and  that  title  does  not  pass 

our    assuming    that    no    assessment    could  451-66.   Darnell  &  Son   Co.  z'.   Memphis, 

be   made   for   a   further   amount,    still   less  208  U.  S.  113,  52  L.  Ed.  413,  28  S.  Ct.  247, 

that    none    in    any    form    could  be    made,  approving   New   York  v.   Roberts,   171   U. 

when  there  is  no  valid  one  upon  the  books.  S.  658,  43  L.  Ed.  sSs,  17  S.  Ct.  58. 

We  can  not  tell,  and  much  more  positive  453-76.     A  city  can  not  tax  its  corporate 

averments  of  intent  than  those  before  us  stock    or   pul^lic    debt    owned   by   nonresi- 

would  not  warrant  a  court  in  prejudging,  dents.     No  municipality  of  a  state  can,  by 

what   the   assessing   officer  will   do.      It   is  its    own    ordinances,    under  the    guise    of 

not  for  a  court  to  stop  an  officer  of  this  taxation,    relieve    itself    from    performing 

kind   from   performing  his   statutory   duty  to    the    letter    all    that    it    has    expressly 

for    fear    he    should    perform  it    wrongly.  promised    to    its    creditors.      Orient    Ins. 

The  earliest  moment  for  equity  to  interfere  Co.  -■.  Board.  221  U.  S.  358,  55  L.  Ed.  769, 

is    when  an    assessment    has  been    made.  31  S.  Ct.    554. 

Probably    it  will    be  made    with    caution.  462-22a.     Foreign  warehouse  receipts. — 

after   this   case."     First   Nat.   Bank  v.   Al-  ludgment    (1907),    Commonwealth   z>.   Sel- 

bright.  208  U.   S.  548,  52  L.  Ed.  614,  28  S.  "liger,  98  S.  W.  1040,  39  Ky.  Law  Rep.  451, 

Ct.  349.  reversed.     Selliger  z\  Kentucky,  213  U.  S. 

444-32a.      P  u  r  p  o  s  e.— Merchants    Nat.  200,  53  L.  Ed.  761,  29  S.  Ct.  449. 

Bank  v.  United  States,  214  U.  S.  33,  53  L.  463-25a.     Paddell  v.   New   York,  211  U. 

Ed.    900,    29  S.    Ct.    593.    approving    Twin  S.  446,  53  L.   Ed.  275,  29   S.  Ct.  139,  citing 

City  Bank  v.  Nebeker,  167  U.  S.  196.  42  L.  Baltimore    Shipbuilding,    etc..    Co.    z:    Bal- 

Ed.   134.   17   S.   Ct.   766.  timore,   195  U.    S.   375,   381.   49   L.   Ed.  242, 

444-32b.      Exemption. — Merchants     Nat.  25  S.  Ct.  50. 

Bank  v.  United  States,  214  U.  S.  33.  53  L.  463-25b.     Paddell  v.   New  York,  211  U. 

Ed.  900,  29  S.  Ct.  593,  affirming  42  Ct.  CI.  6.  S.  446,  53   L.   Ed.  275,  29  S.   Ct.   139. 

1170 


Vol.  XL 


TAX  ATI  OX 


463-465 


until  there  is  a  full  compliance  with  all  the  conditions  upon  which  the  right 
to  a  patent  depends. ^'^ 

Location  of  Military  Bounty  Warrant. — The  equitable  title  to  the  land 
did  not  pass  from  the  United  States,  so  as  to  make  it  liable  to  state  taxation, 
upon  the  location  of  the  military  bounty  land  warrant,  issued  under  the  Act 
of  I\Iarch  3,  1855,  c.  207,  10  Stat.  701,  by  one  who  was  not  the  lawful  owner 
and  holder  of  such  warrant,  since  such  location  did  not  operate  as  a  payment 
of  the  purchase  price,  which  was  essential  to  the  right  to  a  patent.-'^'' 

c.  Public  Lands  after  Entry  or  Grant  but  before  Issue  of  Patent — (2)  Min- 
eral Lands. — A  mere  possessory  right  in  a  mining  claim  in  land  to  which  the 
United  States  has  title  is  a  right  separate  from  the  fee,  and  may  be  taxed  under 
a  state  statute,  although  the  fee  can  not,  because  it  is  in  the 'government.^'^^ 

(3)  Railroad  Grants. — Agreement  Not  to  Tax  for  a  Term. — See  note  41. 

3.  Interests  of  Lessee. — Interest  of  Lessee  of  Lessor  Having  Exemp- 
tion from  Taxation. — See  post,  "Taxation  of  Interest  of  Lessee,"  V,  D,  5,  b. 

Lessee  of  Municipality. — See  post,  "In  General,"  V,  C,  1,  a. 


463-27a.  Sargent  v.  Herrick,  221  U.  S. 
404,  55  L.  Ed.  787,  31  S.  Ct.  574,  citing 
Wisconsin  Cent.  R.  Co.  i-.  Price  County, 
133  U.  S.  496,  505,  33  L.  Ed.  687.  10  S.  Ct. 
341. 

463-27b.  Sargent  v.  Herrick,  221  U.  S. 
404,  55  L.  Ed.  787,  31  S.  Ct.  574,  reversing 
decree  (1908),  Herrick  &  Stevens  v.  Sar- 
gent &  Lahr,  117  N.  W.  751,  140  Iowa. 
590,  132  Am.  St.  Rep.  281. 

"The  case  of  Hussman  v.  Durham.  165 
U.  S.  144,  41  L.  Ed.  664,  17  S.  Ct.  253,  is 
like  this  in  all  material  respects,  the  most 
noticeable  difference  l)eing  that  there  the 
assignment  to  the  locator  was  forged, 
while  here  it  was  ineffectual  because  of 
a  prior  assignment.  In  that  case  this 
court,  after  holding,  in  substance,  that  the 
doctrine  of  relation  can  not  be  invoked 
to  give  effect  to  a  title  resting  upon  the 
wrongful  taxation  of  land  while  both  the 
legal  and  the  equitable  title  were  in  the 
United  States,  said:  'Confessedly,  though 
a  formal  certificate  of  location  was  issued 
in  1858.  there  was  then  in  fact  no  payment 
for  the  land,  and  the  government  received 
nothing  until  1888.  During  these  inter- 
vening years,  whatever  might  have  ap- 
peared upon  the  face  of  the  record,  the 
legal  and  equitable  title  both  remained 
in  the  government.  The  land  was  there- 
fore not  subject  to  state  taxation.  Tax 
sales  and  tax  deeds  issued  during  that 
time  were  void.  The  defendant  took 
nothing  by  such  deeds.  No  estoppel  can 
be  invoked  against  the  plaintiff.  His  ti- 
tle dates  from  the  time  of  payment  in 
1888.  The  defendant  does  not  hold  un- 
der him,  and  has  no  tax  title  arising  sub- 
sequently thereto.'  "  Sargent  v.  Herrick. 
221   U.   S.  404.  55  L.   Ed.  787.  31   S.   Ct.   574. 

465-37a.  Elder  7:  Wood,  208  U.  S.  22ri, 
52  L.  Ed.  464.  28  S.  Ct.  263;  Jetton  v.  Uni- 
versity, 208  U.  S.  489,  52  L.  Ed.  584.  28  S. 
Ct.   37'5. 

Lands  of  the  United  States  are  not 
taxed  in  violation  of  Act  March  3.  1875. 
c.  139,  §  4,  18  Stat.  474,  by  the  imposition. 


under  the  authority  of  Colo.  Laws  1887, 
pp.  340,  341,  §§  1-5,  of  a  tax  upon  the  right 
of  possession,  for  mining  purposes,  of  a 
lode  mining  claim,  and  the  enforcement 
of  the  collection  of  such  tax  by  a  sale  of 
such  right  of  possession.  Judgment, 
Wood  c'.  McCombe  (1906),  86  P.  319,  37 
Colo.  174,  affirmed.  Elder  v.  Wood,  208 
U.   S.  226.  52   L.   Ed.  464,  28  S.  Ct.  263. 

"Such  an  interest  from  early  times  has 
been  held  to  be  property,  distinct  from 
the  land  itself,  vendible,  inheritable,  and 
taxable.  Forbes  v.  Gracev.  94  U.  S.  762. 
24  L.  Ed.  313;  Belk  v.  Meagher,  104  U.  S. 
279,  283,  26  L.  Ed.  735;  Manuel  v.  Wulff, 
152  U.  S  505,  510,  38  L.  Ed.  532,  14  S.  Ct. 
651;  St.  Louis  Min.,  etc.,  Co.  v.  Montana 
Min.  Co.,  171  U.  S.  650,  655,  43  L.  Ed.  320, 
19  S.  Ct.  61:  1  Lindley,  Mines,  §§  535  to 
542,  inclusive.  The  state,  therefore,  had 
the  power  to  tax  this  interest  in  the  min- 
ing claim  and  enforce  the  collection  of  the 
tax  by  sale.  The  tax  deed  conveyed 
merely  the  right  of  possession  and  af- 
fected no  interest  of  the  United  States." 
Elder  z:  Wood,  208  U.  S.  226.  52  L.  Ed. 
464,   28    S.   Ct.   263. 

465-41.  The  case  of  Stearns  v.  Minne- 
sota. 179  U.  S.  223,  253,  45  L.  Ed.  162,  21 
S.  Ct.  To.  Involved  only  the  question 
whether  certain  lands  owned  by  the  de- 
fendant railroad  companies,  but  which 
were  not  used  in  the  operation  of  their 
roads  in  the  state,  were  subject  to  taxa- 
tion according  to  their  value,  or  were  ex- 
empted from  ordinary  rule  of  taxation  by 
virtue  of  statutes,  passes  after  the  state 
constitution  took  effect,  and  the  court 
held  upon  the  showing  there  made,  that 
there  was  a  valid  contract  with  the  rail- 
road companies  in  respect  to  the  taxation 
of  the  lands  there  in  question  which  it 
was  beyond  the  power  of  the  state  to  im- 
pair by  legislation.  Nothing  beyond  that 
was  actually  adjudged  in  the  Stearns 
Case.  Great  Northern  R.  Co.  v.  Minne- 
'^ota.  216  U.  S.  206,  54  L.  Ed.  446,  30  S.  Ct. 
:{44. 


1171 


467-473 


TAXATIOX. 


Vol.  XL 


4.  Mortgaged  Property. — Land  subject  to  a  mortgage  may  be  assessed  at 
its  full  value  for  taxation  without  violating  Const.  U.  S.,  Amend.  14,  although 
the  mortgage  debt  is  not  deducted  from  the  owner's  personal  estate. "^'^ 

I.  Money  and  Deposits  in  Bank. — ]\Ioney  which  one  has  in  the  bank  is 
not  exempt  from  taxation  because  it  was  derived  from  his  salary  as  a  federal 
officer ;  it  losing  its  identity  as  salary  when  it  has  been  paid  to  him  and  come 
into  his  possession.^^^ 

Q.  Distilled  Spirits  in  Bonded  Warehouse. — The  taxation  of  distilled 
spirits  in  bonded  warehouses  in  the  state,  provided  for  by  Act  Ky.  March  29, 
1902  (Acts  1902,  p.  226,  c.  102),  under  which  the  warehouseman  is  made  lia- 
ble for  the  tax  and  is  given  a  lien  on  the  property  for  the  amount  paid,  is 
within  the  power  of  the  state,  where  the  legislation  does  not  contemplate  the 
collection  of  the  taxes  so  long  as  the  spirits  are  in  the  custody  or  under  the 
lien  of  the   federal  government. '^"*^ 

V.  Exemptions  from  Taxation. 

A.  Definitions  and  Distinctions. — See  note  68. 

B.  Power  to  Grant  Exemptions — 1.  Power  of  State  Legislatures — a.  In 
General. — See  notes  72,  7o. 

3.  Power  of  Municipalities. — It  can  no  longer  be  doubted  that  a  municipal 
corporation,  acting  under  its  authority,  may  deprive  itself  by  contract  of  the 
power  to  exercise  a  right  conferred  by  law  to  collect  taxes  or  license  fees.^^* 


467-51a.  Judgment  (1907),  8  N.  E.  1114, 
187  N.  Y.  552,  affirmed.  Paddell  v.  New 
York,  211  U.  S.  446.  53  L.  Ed.  275,  29  S. 
Ct.  139. 

467-52a.  Judgment  (1908),  83  N.  E.  6, 
197  Mass.  99,  125  Am.  St.  Rep.  330,  af- 
firmed. Dyer  v.  Melrose,  215  U.  S.  594, 
54  L.   Ed.   341,  30  S.   Ct.   410. 

469-64a.  Judgment  (1906),  94  S.  W.  654, 
29  Ky.  Law  Rep.  705,  affirmed.  Thomp- 
son V.  Kentucky,  209  U.  S.  340,  52  L.  Ed. 
822,  28   S.   Ct.   533. 

"The  scheme  of  the  statute  is  simple, 
and  it  is  an  exercise  of  the  power  which, 
we  said  in  Carstairs  v.  Cochran,  193  U. 
S.  10,  16.  48  L.  Ed.  596,  24  S.  Ct.  318,  the 
state  undoubtedly  possessed,  'to  tax  pri- 
vate property  having  a  situs  within  its  ter- 
ritorial limits.'  And  this  was  said  in  re- 
sponse to  contentions  having  the  same 
ultimate  foundation  as  those  urged  in  the 
case  at  l:)ar.  The  proposition  was  indeed 
considered  as  elemental,  and  as  requiring 
nothing  more  than  the  illustration  of 
cases.  There  may  be  instances  where 
property,  though  within  the  territorial 
limits  of  a  state,  is  not  subject  completely 
to  the  jurisdiction  of  the  state,  and  coun- 
sel has  cited  a  number  of  such  instances. 
Where  their  example  applies  they  will  be 
followed.  It  does  not  apply  in  the  pres- 
ent case.  There  is  no  conflict  between 
the  state  and  federal  purpose.  There  is 
no  question  of  the  supremacy  of  the  lat- 
ter and  its  complete  fulfillment.  'The 
.'■tate  does  not  propose,'  the  court  of  ap- 
peals said,  'to  collect  the  taxes  so  long  as 
the  spirits  are  in  the  custody  or  tmder 
the  lien  ol  the  federal  government.'  There 


is  actual  accommodation,  therefore,  of 
the  power  of  the  state  to  the  rights  of  the 
federal  government,  and  a  harmonious 
exercise  of  the  respective  sovereignties 
of  each,  preserving  to  each  necessary 
power.  This  is  what  Carstairs  v.  Coch- 
ran decides.  See,  also,  Baltimore  Ship- 
building, etc.,  Co.  V.  Baltimore,  195  U.  S. 
375,  49  L.  Ed.  242,  25  S.  Ct.  50."  Thorrtp- 
son  V.  Kentucky,  209  U.  S.  340,  52  L.  Ed. 
822,  28   S.  Ct.  533. 

470-68.  "Especial  Privilege." — A  terri- 
torial statute  giving  perpetual  succession 
to  an  incorporated  educational  institu- 
tion, and  endowing  it  with  a  perpetual  ex- 
emption from  taxation  as  to  all  its  prop- 
erty, real  and  personal,  grants  an  especial 
privilege  within  the  meaning  of  the  pro- 
visions of  the  Washington  Organic  Act 
of  :\Iarch  2,  1867,  that  the  territorial  leg- 
islature shall  not  grant  private  charters 
or  especial  privileges,  but  may  enact  gen- 
eral incorporation  acts.  Berryman  v. 
Board,  222  U.  S.  334,  56  L.  Ed.  225,  32  S. 
Ct.  147. 

470-72.  A  state,  acting  under  its  author- 
ity, may  deprive  itself  by  contract  of  the 
power  to  tax.  St.  Louis  v.  United  R.  Co., 
210  U.  S.  266,  52  L.  Ed.  1054,  28  S.  Ct.  630. 

471-73.  A  state  legislature,  unless  re- 
strained by  state  constitutional  provisions, 
may  contract  to  limit  its  power  of  taxa- 
tion. Great  Northern  R.  Co.  v.  Minne- 
sota, 216  U.  S.  206,  54  L.  Ed.  446,  30  S.  Ct. 
344. 

473-82a.  Municipalities. — St.  Louis  v. 
United  R.  Co.,  210  U.  S.  266,  52  L.  Ed. 
1054,   28   S.   Ct.   630. 


1172 


Vol.  XI. 


TAXATION 


473-474 


C.  Rules  of  Construction — 1.  Statutes  Exempting  Property — a.  In 
General. — See  note  83.  Where  one  relies  upon  an  exemption  from  taxation, 
both  the  power  to  exempt  and  the  contract  of  exemption  must  be  clear.  Any 
doubt  or  ambiguity  must  be  resolved  in  favor  of  the  public. ^^'^ 

Words  of  Restriction  Found  in  Fundamental  Law. — The  rule  of  strict 
construction  is  just  as  applicable  when  determining  whether  words  of  restric- 
tion found  in  the  fundamental  law  are  intended  to  operate  as  a  limitation  on 
the  legislative  power  to  grant  contract  exemptions  from  taxation  as  where 
the  question  is  whether  the  particular  terms  of  an  alleged  contract  did  or  did 
not  embrace  an  exemption  from  taxation. "^■*^  It  must  be  expressed  in  words 
so  clear  and  explicit  as  to  leave  no  reasonable  doubt  that  the  exemption  was 
intended  to  be  given.  It  can  not  be  inferred  from  uncertain  phrases  or  am- 
biguous terms. ^5* 

Charter  of  Street  Railway  Company. — An  inviolable  contract  between 
a  municipality  and  street  railwa}"  companies  which  will  prevent  the  exaction 
of  a  license  tax  under  an  acknowledged  power  of  the  municipality  is  not  cre- 
ated by  ordinances  passed  in  the  exercise  of  authority  to  grant  the  use  of  the 
streets,  under  which  the  companies  have  agreed  to  pay  certain  sums  for  the 
use  of  such  streets  for  a  given  period,  w^here  such  ordinances  do  not  expressly 
relinquish   the   right  to   exact  license   fees  or  taxes. ■^'^^   It  is  not   sufficient  that 


473-83.  Berryman  7:  Board,  222  U.  S. 
334,  56  L.  Ed.  225,  32  S.  Ct.  147;  St.  Louis  r. 
United  R.  Co..  210  U.  S.  266,  52  L.  Ed. 
1054,  28   S.   Ct.   630. 

473-83a.  Perry  Co.  v.  Norfolk,  220  U.  S. 
472,  55  L.  Ed.  548.  31  S.  Ct.  465;  St.  Louis 
V.  United  R.  Co..  210  U.  S.  266,  52  L.  Ed. 
1054.  28  S.  Ct.  630. 

473-84a.  Berryman  v.  Board.  222  U.  S. 
334.  56  L.  Ed.  225,  32  S.  Ct.  147.  reversing: 
decree  (C.  C.  1907)  Board  of  Trustees  of 
Whitman  College  t'.  Berryman,  156  F.  112. 

474-85a.  Great  Northern  R.  Co.  v.  Min- 
nesota, 216  U.  S.  206,  54  L.  Ed.  446,  30  S. 
Ct.  344:  St.  Louis  v.  United  R.  Co..  210  U. 
S.  266,   52   L.   Ed.   1054,   28   S.    Ct.   630. 

An  intention  to  exempt  from  a  fran- 
chise tax  can  not  be  gathered  froin  the 
provisions  of  a  railway  charter  that  its 
income  is  lawfully  chargeable  with  cer- 
tain specified  expenses  and  with  "every 
other  cost  and  charge  properly  or  neces- 
sarily connected  with  the  maintenance  and 
operation  of  said  railway,"  with  dividends 
and  with  a  sinking  fund,  and  that  the  ex- 
cess of  income  shall  be  divided  equally 
between  the  government  and  the  stock- 
holders, where  a  subsequent  provision  ex- 
empts the  property  from  taxation  while 
under  construction,  "provided  that,  as  fast 
as  completed  and  equipped,  the  completed 
and  equipped  portion  shall  become  liable 
to  such  taxation,"  although,  when  the 
charter  was  granted,  real  and  personal 
property  were,  under  Haw.  Rev.  Laws 
1905,  §  1216,  assessed  for  taxation  "sep- 
arately as  to  each  item  thereof  for  its 
full  value."  Honolulu,  etc..  Land  Co.  :•. 
Wilder,  211  U.  S.  137.  53  L.  Ed.  121.  29  S. 
Ct.  44. 

474-86a.  Charter  of  street  railway  com- 
pany.—St.  Louis  V.  United  R.  Co..  210  U. 
S.  266,  52  L.  Ed.  1054,  28  S.  Ct.  630. 


A  leading  case  is  New  Orleans,  etc.,  R. 
Co.  V.  New  Orleans,  143  U.  S.  192,  36  L. 
Ed.  121,  12  S.  Ct.  406.  In  that  case  the 
city  of  New  Orleans,  on  October  2,  1879, 
sold  to  the  New  Orleans  City  Railroad 
Company,  assignor  of  the  plaintiff  in  er- 
ror, for  the  price  of  $630,000,  the  right  of 
way  and  franchises  for  running  certain 
lines  of  railroad  for  carrying  passengers 
within  the  city,  for  the  term  of  twenty- 
five  years,  and  the  company  agreed  to 
construct  its  railroad,  to  keep  the  streets 
in  repair,  to  comply  with  the  regulations 
as  to  the  style  and  running  of  cars,  rates 
of  fare,  and  motive  power,  and  to  annu- 
ally pay  into  the  city  treasury,  upon  the 
assessed  value  of  the  road  and  fixtures, 
the  annual  tax  levied  upon  the  real  es- 
tate, the  value  of  the  road  and  fixtures  to 
be  assessed  by  the  usual  mode  of  assess- 
ment. .Afterwards,  in  the  year  of  1887, 
under  authority  of  a  legislative  act,  the 
city  imposed  a  license  tax  upon  the  busi- 
ness of  carrying  on,  operating,  and  run- 
ning a  horse  or  steam  road  for  the  trans- 
I)ortation  of  passengers  within  the  limits 
of  the  city,  payable  annually,  and  based 
on  the  annual  gross  receipts;  when  the 
same  exceeded  $500,000,  the  amount  to  be 
S2,500.  The  railroad  company  admitted 
its  receipts  exceeded  that  sum,  and  claimed 
the  protection  of  the  constitution  of  the 
United  States  for  its  franchise  contract 
extending  to  January  1,  1906,  as  above 
set  forth.  This  would  seem  to  be  as 
strong  a  case  for  the  exemption  from  the 
license  tax  as  could  he  made,  short  of  a 
specific  agreement  binding  the  city  not  to 
exercise  its  power  in  that  direction.  This 
court  afifirmed  the  judgment  of  the  su- 
preme court  of  Louisiana,  denying  the 
contention  of  the  railroad  company.  St. 
Louis  V.  United   R.   Co.,  210  U.   S.  266,  52 


1173 


474 


TAXATION. 


Vol.  XI. 


a  street  railway  company  has  agreed  to  pay  for  the  privilege  of  using  the  streets 
for  a  given  term,  either  in  a  lump  sum,  or  by  payments  in  installments,  or 
percentages  of  the  receipts  to  thereby  conclude  the  municipality  from  exercis- 


I,.  Ed.  1054,  28  S.  Ct.  630,  distinguishing 
Gordon  v.  Appeal  Tax  Court,  3  How.  ]32, 
11  L.  Ed.  529. 

"The  case  at  bar  can  not  be  distin- 
guished from  that  of  Memphis  Gas  Light 
Co.  V.  Taxing  Dist.,  109  U.  S.  398,  400,  27 
L.  Ed.  976,  3  S.  Ct.  205,  in  which  this 
court  upheld  a  license  tax  upon  a  corpora- 
tion which  had  acquired  by  its  charter 
the  privilege  of  erecting  gasworks  and 
making  and  selling  gas  for  fifty  years; 
and  speaking  by  Mr.  Justice  Miller,  said; 
"The  argument  or  counsel  is  that,  if  no 
express  contract  against  taxation  can  be 
found  here,  it  must  be  implied,  because  to 
permit  the  state  to  tax  this  company  by 
a  license  tax  for  the  privilege  granted  by 
its  charter  is  to  destroy  that  privilege.  But 
the  answer  is  that  the  company  took  their 
charter  subject  to  the  same  right  of  taxa- 
tion in  the  state  that  applies  to  all  other 
privileges  and  to  all  other  property.  If 
they  wish  or  intended  to  have  an  exemp- 
tion of  any  kind  from  taxation,  or  felt 
that  it  was  necessary  to  the  profitable 
working  of  their  business,  they  should 
have  required  a  provision  to  that  eflfect 
m  their  charter."  The  constitution  of  the 
United  States  does  not  profess  in  all 
cases  to  protect  property  from  unjust 
and  oppressive  taxation  by  the  states. 
That  is  left  to  the  state  constitution  and 
state  laws.  St.  Louis  v.  United  R.  Co.. 
210  U.  S.  266,  52  L.  Ed.  1054.  28  S.  Ct.  630. 
"This  case  was  but  an  affirmation  of 
the  doctrine  announced  in  Railway  Co.  v. 
Philadelphia,  101  U.  S.  528,  29  L.  Ed.  912; 
The  Delaware  R.  Tax,  18  Wall.  206,  21  L. 
Ed.  888.  The  New  Orleans  case  was 
quoted  with  approval,  and  the  former 
cases  in  this  court  reviewed  in  the  recent 
case  of  Metropolitan  St.  R.  Co.  v.  New 
York  State  Board,  199  U.  S.  1,  50  L.  Ed 
65,  25  S.  Ct.  705.  In  that  case  the  deci- 
sion of  the  New  York  circuit  court  of  ap- 
peals was  affirmed,  sustaining  the  right 
of  the  state  of  New  York  to  tax  franchises 
of  street  railway  companies,  notwith- 
standing the  railway  companies  had  al- 
ready paid  for  the  right  to  construct, 
maintain,  and  operate  and  use  street  rail- 
roads in  consideration  of  payment  into 
the  treasury  of  the  city  of  New  York  of 
a  percentage  of  their  gross  receipts."  St. 
Louis  V.  United  R.  Co.,  210  U.  S.  266,  52 
L.  E.d.  1054,  28  S.  Ct.  630. 

"In  that  case  Mr.  Justice  Brewer,  who 
spoke  for  the  court,  said  (pp.  37,  38):  'Ap- 
plying these  well-established  rules  to  the 
several  contracts,  it  will  be  perceived 
that  there  was  no  express  relinquishment 
of  the  right  of  taxation.  The  plaintiff  in 
error  must  rely  upon  some  implication, 
and   not   upon   any   direct   stipulation.      In 


each  contract  there  was  a  grant  of  priv- 
ileges, but  the  grant  was  specifically  of 
privileges  in  respect  to  the  construction, 
operation,  and  maintenance  of  a  street 
railroad.  These  were  all  that  in  terms 
were  granted.  As  consideration  for  this 
grant,  the  grantees  were  to  pay  some- 
thing, and  such  payment  is  nowhere  said 
to  be  in  lieu  of,  or  as  an  equivalent  or 
substitute  for,  taxes.  All  that  can  be  ex- 
tracted from  the  language  used  was  a 
grant  of  privileges  and  a  payment  there- 
for. Other  words  must  be  written  into 
the  contract  before  there  can  be  found 
any  relinquishment  of  the  power  of  taxa- 
tion.' "  St.  Louis  V.  United  R.  Co.,  210  U. 
S.  266,  52  L.  Ed.  1054,  28  S.  Ct.  630. 

"Many  state  authorities  have  reached 
the  same  conclusion.  We  will  refer  to 
some  of  them:  Springfield  v.  Smith,  138 
I\Io.  645,  37  L.  R.  A.  446,  60  Am.  St.  Rep. 
509,  40  S.  W.  757;  Wyandotte  v.  Corrigan, 
35  Kan.  21,  10  Pac.  99;  State  ex  rel.  Cream 
City  R.  Co.  V.  Hilbert,  72  Wis.  184,  39  N. 
W.  326;  Newport  News  &  O.  P.  &  Elec- 
tric Co.  V.  Newport  News,  100  Va.  157,  40 
8.  E.  645;  New  Orleans  v.  New  Orleans 
R.  Co.,  42  La.  Ann.  4,  21  Am.  St.  Rep.  365, 
7  So.  59;  New  Orleans  v.  New  Orleans 
City  &  Lake  R.  Co.,  40  La.  Ann.  587,  4  So. 
512;  San  Jose  v.  San  Jose  &  S.  C.  R.  Co., 
53  Cal.  475,  481;  State  v.  Herod,  29  Iowa, 
123."  St.  Louis  V.  United  R.  Co.,  210  U. 
S.  266,  52  L.  Ed.  1054,  28  S.  Ct.  630. 

"The  city  in  granting  the  right  to  use 
the  streets  by  special  ordinance  and  in 
exercising  by  general  ordinance  the  right 
conferred  in  the  charter  to  impose  a  li- 
cense tax  upon  cars,  is  dealing  with  rights 
and  privileges  somewhat  similar,  but  nev- 
ertheless, essentially  separate  and  dis- 
tinct. In  the  special  ordinances  the  city 
is  making  an  arrangement  with  the  rail- 
way company  to  confer  the  right  to  use 
the  streets  in  consideration  of  certain 
things  the  company  is  to  do  by  way  of 
operation  and,  otherwise,  including,  it 
may  be,  payment  of  fixed  sums  or  a  pro- 
portion of  receipts  in  consideration  of  the 
rights  and  privileges  conferred.  The  city 
does  this  by  virtue  of  its  power  to  grant 
rights  and  privileges  and  control  their  ex- 
ercise in  the  streets  of  the  city;  power  ex- 
pressly conferred  in  the  character  of  the 
citv."  St.  Louis  V.  United  R.  Co.,  210  U. 
S.  266,  52  L.  Ed.  1054,  28  S.  Ct.  630. 

"In  the  fixing  of  a  license  tax  upon  all 
companies  alike  for  the  privilege  of  using 
cars  in  the  city,  it  is  exerting  other  char- 
ter powers.  It  makes  provision  uniformly 
applicable  to  all  persons  or  companies 
using  street  cars.  It  is  a  revenue  measure 
equally  applicable  to  all  coming  within 
its -terms.     We   do   not  perceive   that   the 


1174 


Vol.  XL 


TAXATION. 


474-478 


ing  a  statutory  authority  to  impose  license  fees  or  taxes.  This  right  still  ex- 
ists unless  there  is  a  distinct  agreement,  clearly  expressed,  that  the  sums  to 
be  paid  are  in  lieu  of  all  such  exactions.**^'' 

Lessee  of  Municipal  Lessor. — A  contract  exemption  from  municipal  tax- 
ation can  not  be  deduced  from  the  covenant  of  a  perpetual  leaseholder  with 
his  municipal  lessor  to  pay  all  the  public  taxes  which  shall  become  due  on  the 
land,  although  the  municipality  possessed  no  power  of  taxation  when  the  lease 
was  made.^'"^ 

c.  PrcsiDHpt'wns  and  Burden  of  Proof — (1)    Presumptions. — See  notes  92,  94. 

d.  Implied  Exemptions — (1)  In  General. — See  note  96.  Deprivation  of  the 
power  to  tax  can  only  follow  when  the  state  or  a  municipality  has  concluded 
itself  by  the  use  of  clear  and  unequivocal  terms.  The  existence  of  doubt  in 
the  interpretation  of  the  alleged  contract  is  fatal  to  the  claims  of  an  exemption. ^6* 

(2)    Effect  of  Silence  of  Charter  as  to  Exemption. — See  note  97. 


exercise  of  the  power  to  grant  privileges 
ill  the  streets  in  making  terms  with  com- 
panies seeking  such  rights,  in  the  absence 
of  plain  and  unequivocal  terms  to  that  ef- 
fect, excludes  the  city's  right  to  impose 
the  license  tax  under  the  power  confer- 
red for  that  purpose."  St.  Louis  v.  United 
R.  Co.,  210  U.  S.  266,  52  L.  Ed.  1054,  28  S. 
Ct.  630. 

This  is  virtually  decided  by  the  rule 
laid  down  in  New  Orleans,  etc.,  R.  Co.  v. 
New  Orleans,  143  U.  S.  192,  36  L.  Ed.  121, 
12  S.  Ct.  406,  '"which  holds  that  because 
a  street  railway  company  has  agreed  to 
pay  for  the  use  of  the  streets  of  the  city 
for  a  given  period,  it  does  not  thereby 
create  an  inviolable  contract  which  will 
prevent  the  exaction  of  a  license  tax  un- 
der an  acknowledged  power  of  the  city, 
unless  this  right  has  been  specifically 
surrendered  in  terms  which  admit  of  no 
other  reasonable  interpretation."  St. 
Louis  V.  United  R.  Co.,  210  U.  S.  266,  52 
L.  Ed.  1054,  28  S.  Ct.  630. 

474-86b.  St.  Louis  v.  United  R.  Co.,  210 
U.  S.  266,  52  L.  Ed.  1054,  28  S.  Ct.  630. 

476-90a.  Perry  Co.  v.  Norfolk,  220  U.  S. 
472,  55  L.  Ed.  548,  31  S.  Ct.  465,  affirming 
judgments  (1908)  Citv  of  Norfolk  v.  J.  W. 
Perry  Co.,  61  S.  E.  867,  108  Va.  28,  and 
(1908)  Same  v.  White,  61  S.  E.  870,  108 
Va.  35. 

"Even  if  the  borough  could  have  made 
a  valid  contract  of  exemption  in  1792,  there 
is  nothing  to  show  that  it  did  so.  On 
the  contrary,  the  provision  that  the  lessee 
was  to  'pay  public  taxes'  was  sufficiently 
comprehensive  to  embrace  municipal 
taxes  whenever  they  could  thereafter  be 
lawfully  assessed  on  land  or  the  improve- 
ments which  were  a  part  of  the  land. 
*  *  *  Here  there  is  not  only  no  language 
of  exemption,  but  a  positive  agreement 
on  the  part  of  the  lessees  to  pay  public 
taxes  on  the  land.  In  compelling  them 
to  do  so,  the  contract  is  enforced  instead 
of  impaired."  Perry  Co.  v.  Norfolk,  220 
U.   S.  472.  55  L.   Ed.  548,  31   S.   Ct.  465. 

477-92,  94.  As  taxation  is  essential  to  the 
existence  and  operations  of  government, 
an  exemption  from  ta.xes  can  not  be  pre- 


sumed from  doubtful  language,  but  must 
be  expressed  in  words  so  clear  and  ex- 
plicit as  to  leave  no  reasonable  doubt  that 
the  exemption  was  intended  to  be  given. 
Great  Northern  R.  Co.  z'.  Minnesota,  216 
U.   S.  206,  54  L.   Ed.  446,  30  S.  Ct.  344. 

"Exemption  from  taxation  is  never  to 
be  presumed.  The  legislature  itself  can 
not  be  held  to  have  intended  to  surrender 
the  taxing  power,  unless  its  intention  to 
do  so  has  been  declared  in  clear  and  un- 
mistakable words.  Vicksburg,  etc.,  R. 
Co.  V.  Dennis,  116  U.  S.  665,  668,  29  L.  Ed. 
770.  6  S.  Ct.  625."  .  St.  Louis  v.  United  R. 
Co.,  210  U.  S.  266,  52  L.  Ed.  1054,  28  S.  Ct. 
630,  quoting  New  Orleans,  etc.,  R.  Co.  v. 
New  Orleans,  143  U.  S.  192.  36  L.  Ed.  121, 
12  S.  Ct.  406. 

"The  only  point  decided  in  Gordon 
V.  Appeal  Tax  Court,  3  How.  132,  11 
L.  Ed.  529,  was  that  an  act  of  the  legis- 
lature, continuing  the  charter  of  a  bank, 
upon  condition  that  the  corporation 
.should  pay  certain  sums  annually  for  pub- 
lic purposes,  and  declaring  th^t,  upon  its 
accepting  and  complying  with  the  provi- 
sions of  the  act,  the  faith  of  the  state  was 
pledged  not  to  impose  any  further  tax  or 
burden  upon  the  corporation  during  the 
continuance  of  the  charter,  exempted  the 
stockholders  from  taxation  on  their 
stock;  so  much  of  the  opinion  as  might, 
taken  by  itself,  seem  to  support  the  prop- 
osition that  exemptions  from  taxation 
will  be  presumed,  has  been  often  ex- 
plained or  disapproved.  Piqua  Branch  v. 
Knoop,  16  How.  369,  402,  14  L.  Ed.  977; 
People  V.  Commissioners,  4  Wall.  244, 
259,  18  L.  Ed.  344;  JefTerson  Branch  Bank 
7/.  Skelly,  1  Black  436,  446,  17  L.  Ed.  173; 
Farrington  v.  Tennessee,  95  U.  S.  679,  694, 
24  L.  Ed.  558;  Railroad  Comm.  Cases,  116 
U.  S.  307,  328,  29  L.  Ed.  636.  6  S.  Ct.  334." 
St.  Louis  r.  United  R.  Co.,  210  U.  S.  266, 
52  L.  Ed.  1054,  28  S.  Ct.  630. 

478-96.  St.  Louis  v.  United  R.  Co.,  210 
U.  S.  266.  52  L.  Ed.  1054,  28  S.  Ct.  630. 

478-96a.  St.  Louis  7-.  United  R.  Co..  210 
U.   S.  266,  52  L.  Ed.  1054,  28  S.  Ct.  630. 

478-97.  St.  Louis  7-.  United  R.  Co.,  210 
U.   S.  266,  52  L.   Ed.  1054,  28  S.  Ct.  630. 


1175 


479-484  TAXATION.  Vol.  XL 

f.  Act  of  Congress  Ratifying  Territorial  Grant  of  Franchise. — Franchises 
granted  by  the  Hawaiian  government  between  July  7,  1898,  and  September 
28,  1899,  were  not  made  acts  of  congress  by  adoption,  so  as  to  be  exempt 
from  territorial  taxation,  by  the  provision  of  the  organic  act  April  30,  1900, 
c.  339,  §  73,  31  Stat.  141,  154,  ratifying  and  affirming  such  franchises.-^ 

g.  Exemption  of  Indian  Allotments. — Liberal  Construction. — Any  doubt 
as  to  whether  the  tax  exemption  provision  in  the  Act  of  June  28,  1898,  allot- 
ting lands  in  severalty  to  the  members  of  the  Choctaw  and  Chickasaw  tribes, 
was  a  personal  privilege,  and  repealable,  or  an  incident  attached  to  the  land 
itself  for  a  limited  period,  must  be  resolved  in  favor  of  the  patentees. ^"^ 

Effect  of  Grant. — A  tax  exemption,  and  not  merely  an  additional  guard 
against  alienation,  which  would  fall  when  the  restrictions  on  alienation  were 
removed,  was  made  by  the  Act  of  June  28,  1898  (30  Stat,  at  L.  505,  chap. 
517),  under  which  the  lands  allotted  in  severalty  under  that  act  to  the  members 
of  the  Choctaw  and  Chickasaw  tribes  were  subjected  to  various  restrictions  on 
alienation,  and  were  to  be  nontaxable  while  the  title  remained  in  the  original 
allottees.-*^ 

D.    Impairment  of  Obligation  of  Contracts — 1.   In  General. — See  note  4. 

5.  Exemption  Granted  Owner  of  Land — a.  In  General. — A  state  can  not 
impair  an  immunity  from  taxation  lawfully  granted  an  owner  of  land.^^^ 

b.  Taxation  of  Interest  of  Lessee. — As  long  as  different  interests  may  exist 
in  the  same  land,  it  is  plain  that  an  exemption  granted  to  the  owner  of  the 
land  in  fee  does  not  extend  to  an  exemption  from  taxation  of  an  interest  in 
the  same  land,  granted  by  the  owner  of  the  fee  to  another  person  as  a  lessee 
for  a  term  of  years.  The  two  interests  are  totally  distinct,  and  the  exemption 
of  one 'from  taxation  plainly  does  not  thereby  exempt  the  other.^^''  The  con- 
tract exemption  from  taxation  granted  to  the  L^niversity  of  the  South  by  its 
charter  of  January  6,  1858,  as  amended  January  19,  1858;  to  continue  as  long 
as  the  land  so  exempted  belongs  to  that  institution,  is  not  impaired  by  taxing;, 
under  the  authority  of  the  Tennessee  Act  of  January  10,  1903,  chap.  258,  §  5, 
the  interest  of  the  lessees  of  such  land  under  leases  from  the  university  for  a 
term  of  years, i^°  which  inter  alia  require  the  lessees  to  pay  the  rent  specified 

479-2a.     Honolulu,     etc..     Land     Co.     v.  484-19a.   Jetton  v.   University,   208   U.    S. 

Wilder.  211  U.  S.  137,  53  L.  Ed.  121,  29  S.  489,  52  L.  Ed.  584.  28  S.  Ct.  375. 

Ct.  44.  484-19b.  Taxing  interest  of  lessee. — Jet- 

479-2b.      Exemption     of     Indian     allot-  ton  v.  University,  208  U.  S.  489,  52  L.  Ed. 

ments.— Choate    v.    Trapp,    224    U.    S.    665,  584,  28  S.  Ct.  375. 

56   L.    Ed.   941,   32   S.   Ct.   565;    Gleason   v.  484-19c.  Jetton  v.  University,   208   U.   S. 

Wood,  224  U.   S.  679,  56  L.   Ed.  947,  32  S.  489,  52  L.  Ed.  584,  28  S.  Ct.  375. 

Ct.  571.  "The   exemption   lasts   only   so   long   as 

479-2C.      Effect     of     grant. — Choate     f.  the  university  owns  the  lands,  and.  when 

Trapp,  224  U.  S.  665,  56  L.  Ed.  941.  32  S.  it  conveys  a  certain  interest  in  them  to  a 

Ct.  565;   Gleason  v.  Wood,  224  U.   S.  679,  third   person,   it   no   longer   owns   that   in- 

56  L.  Ed.  947,  32  S.  Ct.  571.  terest,   which  at  once  becomes  subject   to 

480-4.    Exemption    of   Indian   lands. — Tn  the    right    of   the    state   to   tax   it.     Wheii 

New  Jersey  v.  Wilson,  7  Cranch  164,  3  L.  the    state    exercises    that    right,    as    it    did 

Ed.   303,   "the   exemption  was   assumed  to  under  the  Act  of  1903,   and  taxes  the   in- 

be   absolute,   unconditional,   and  unlimited  terest    in    the     name    of    its    owner,    the 

in  time.     It  seems  that  there  was   an   act  state    thereby    violates    no    contract,    and 

(that  of  1796)  which  authorized  the  lands  the    tax    is    valid."      Jetton    v.    University, 

to  be  leased,  but  that  act  was  not  brought  2©8  U.  S.  489,  52  L.  Ed.  584,  28  S.  Ct.  375. 

to  the  attention  of  the  court.     See   Given  "What    is    the    exact    interest     of      the 

V.   Wright,    117   U.   S.   648,   655,   29    L.    Ed.  lessee  in  the  land  leased  to  him  it  is  not 

1021,  6  S.   Ct.  907,  where  a  more   full  his-  necessary  to  here   determine.     It  is   plain 

tory  of  the  case  is  given.     The  act  repeal-  that  he  has   some   interest  in   it,   and  that 

ing   the   exemption,   passed   after   the    sale  interest  is  distinct  from  the  fee,  and  may 

of  the  lands  by  the  Indians,  was  held  void  h&    raxed    when    the    fee    is    exempt    from 

because  it  impaired  the  obligations  of  the  taxation.''      Jetton    v.    University,    208    U. 

contract."     Jetton  v.  University,  208  U.  S.  S.  489,  52  L-   Ed.  584.  28  S.  Ct.  375. 

489,  52  L.  Ed.  584,  28  S.  Ct.  375.  Ownership  of    improvements.— Whether 

1176 


\'ol.  XI. 


TAXATION 


484 


and  "all  taxes  and  assessments  upon  said  premises,"  and  reserve  the  right  of 
re-entry  for  a  covenant  broken, i'-^*^  although,  when  the  exemption  was  granted, 
the  state  had  not  provided  for  taxation  of  the  interest  of  a  lessee  in  his  own 
name.^'-^^  The  obligations  of  the  contract  remain  precisely  as  they  were  prior 
to  its  passage.  The  change  wrought  by  the  act  affected  third  persons  only 
(the  lessees  of  real  estate),  and,  instead  of  leaving  them  to  be  taxed  in  tlie 
name  of  their  lessor  for.  their  interest  in  the  land  as  such  lessees,  the  act  pro- 
vided for  their  separate  taxation. ^'^^  The  doctrine  that  laws  which  are  in  force 
when  a  contract  is  made  will  generally  enter  into  its  obligations  has  no  ap- 
plication.^^^ 

Not  a  Tax  on  Rents  or  Income. — Such  an  assessment  is  not  the  same  in 
substance  as  one  against  the  owner  in  fee  of  the  land.  It  is  not  a  tax  on  the 
rents  or  income  of  real  estate. ^^^ 

6.  Exemption  of  Indian  Allotments. — Choctaw  and  Chickasaw  allottees 
under  the  Atoka  agreement  embodied  in  the  Act  of  June  28,  1898,  under  which, 
in  part  consideration  of  their  relinquishment  of  all  claim  to  the  tribal  property, 


the  lessee  "is  the  owner  of  the  improve- 
ments made  by  him  until  the  same  are 
paid  for  at  the  same  time  is  not  material 
upon  the  question  of  the  separate  in- 
terests of  the  lessee  and  the  owner  of 
the  fee,  the  ownership  of  the  improve- 
ments being  only  material  upon  the 
question  of  the  value  of  the  interest  of 
the  lessee.  Even  if  the  university  was 
entitled  to  become  and  was  the  owner 
of  such  improvements  at  the  end  of  the 
second  renewal,  without  paying  for  them, 
the  question  still  remains  as  to  the  value 
of  the  separate  interest  of  the  lessee, 
which,  even  upon  that  assumption,  might 
be  greatly  more  than  the  rent  to  be  paid. 
Th^  value  of  whatever  interest  he  has  is 
to  be  assessed  as  real  estate  under  the 
statute,  and  that  value  must  be  de- 
termined by  the  assessing  officer.  *  *  * 
It  is  a  separate  and  distinct  interest  from 
that  of  the  owner  of  the  fee,  and  the 
assessment  of  that  interest  for  taxation 
is  not  an  assessment  upon  the  interest  of 
the  university,  and  is  not  a  violation  of 
the  exemption  granted  to  it  by  the  stat- 
ute of  1858."  Jetton  v.  University,  208  U. 
S.   489.   52   L.   Ed.   584.   28   S.   Ct.   375. 

484-19d.  Jetton  v.  University,  208  U.  S. 
489.    52   L.    Ed.    584,   28    S.    Ct.    375. 

"If  the  interest  of  the  lessee  in  the 
land  could  be  sold  for  nonpayment  of 
the  tax  assessed  thereon,  such  result 
would  arise  from  the  act  of  the  university 
in  creating  it.  But  the  lessor  might,  un- 
der the  terms  of  the  lease,  at  once  re- 
enter for  nonpayment  of  taxes."  Jetton 
V.  University,  208  U.  S.  489,  52  L.  Ed. 
584.    28    S.    Ct.    375. 

484-19e.  Jetton  v.  University,  208  U.  S. 
489.   52   L.   Ed.   584,  28   S.   Ct.   375. 

The  fact  that,  at  the  time  when  the 
exemption  was  granted  to  the  owner  of  the 
fee,  the  state  had  not  provided  for  taxa- 
tion against  the  lessee  in  his  own  name, 
is  not  important.  The  difTerent  interest 
of  an   owner  of  the   fee   and   an   owner  of 


an  estate  for  years,  the  lessee,  existed, 
and  such  existence  was  recognized.  An 
exemption  of  one  did  not  necessarily  in- 
clude the  exemption  of  the  other.  The 
contract  of  exemption  did  not  imply  in 
the  most  remote  degree  that  the  state 
would  not  thereafter,  through  its  legis- 
lature, so  change  its  mode  of  assessment 
as  to  reach  the  interest  of  a  lessee  di- 
rectly, and  not  through  the  owner  of  the 
fee.  In  so  doing  the  state  does  not  tax 
the  owner  of  the  land  in  fee  nor  the  fee 
itself.  It  taxes  what  it  had  a  right  to 
tax,  a  separate  and  distinct  interest  in 
the  land,  although  the  fee  thereof  be  in 
the  university,  which  can  not  be  taxed 
therefor.  Jetton  v.  University,  208  U.  S. 
489.  52  L.   Ed.  584.  28  S.  Ct.  375. 

484-19f.  Jetton  v.  University,  208  U.  S. 
489,    52    L.    Ed.    584,   28    S.    Ct.   375. 

484-19g.  Jetton  v.  University,  208  U.  S. 
489,   52   L.   Ed.   584,   28   S.    Ct.   375. 

484-19h.  Not  a  tax  on  rents  or  income. 
— Jetton  V.  University.  208  U.  S.  489.  52 
L.    Ed.    584,   28   S.    Ct.   375. 

"The  university  receives  the  rents  or 
income  from  anj^  tax.  The  tax  is,  in  both 
form  and  substance,  upon  a  separate  in- 
terest in  real  estate  granted  by  the 
lessor,  and  is  assessed  against  the  owner 
of  such  separate  interest.  If  the  uni- 
versity could  lease  its  lands  and  could 
also  effectually  provide  that  the  interest 
of  the  lessee  in  the  land  so  leased  should 
be  exempt  from  taxation,  it  may  readily 
be  seen  that  the  amount  of  rent  which 
it  would  receive  would  be  larger  than  if 
no  such  exemption  could  be  obtained,  but 
that  is  a  matter  which  is  wholly  imma- 
terial upon  the  question  of  the  impair- 
ment of  the  contract  of  exemption  that 
was  really  made.  That  contract  can  not 
be  extended  simply  because  it  would,  as 
so  construed,  add  value  to  the  exemp- 
tion." Jetton  z'.  University,  208  U.  S. 
489,   52   L.   Ed.   584,  28   S.   Ct.   375. 


1177 


484-487 


TAXATION. 


Vol.  XI. 


they  were  to  receive  allotments  of  the  lands  in  severalty,  which  were  to  be 
nontaxable  for  a  specified  period  while  the  title  remained  in  the  original  allot- 
tees, acquired  vested  rights  of  exemption  from  state  taxation,  protected  by  U. 
S.  Const.,  5th  Amend.,  from  abrogation  during  that  period,  as  was  attempted 
by  the  Act  of  May  27,  1908  (35  Stat,  at  L.  312,  chap.  199),  removing  the 
restrictions  upon  alienation,  and  providing  that  lands  from  which  such  restric- 
tions had  been  removed  should  be  subject  to  taxation.!^' 

F.  Transfer  of  Immunity  from  Taxation — 1.  Right  of  Owner  to 
Transfer  Exemption. — See  note  31.  A  contract  exemption  from  taxation  is 
so  exceptional  in  its  nature  that  the  right  to  transmit  it  is  not  embraced  in  the 
general  authority  to  transmit  privileges,  and  therefore  the  power  to  transfer 
must  be  expressly  and  specially  conferred." ^^ 

3.  Effect  of  Consoudation  or  Sai^e  of  Corporation  Enjoying  Exemp- 
tion.— See  note  35.  A  contract  exemption  from  taxation  does  not  survive  a 
purchase  by  the  state  at  a  sale  on  foreclosure  of  the  property  and  franchises 
of  a   railway   company;  and  a   subsequent  grant  by  the  state,  made  when  the 


484-19i,  Choate  v.  Trapp,  224  U.  S.  G65, 
56  L.  Ed.  941,  32  S.  Ct.  565;  Gleason  v. 
Wood,  224  U.  S.  679,  56  L.  Ed.  947,  32  S. 
Ct.    571. 

486-31.  Immunity  from  taxation  a  per- 
sonal privilege. — Great  Northern  R.  Co. 
V.  Minnesota,  216  U.  S.  206,  54  L.  Ed.  446, 
30  S.  Ct.  344,  affirming  the  following 
cases:  Morgan  v.  Louisiana,  93  U.  S. 
217,  23  L.  Ed.  860;  Chesapeake,  etc.,  R. 
Co.  V.  Miller,  114  U.  S.  176,  29  L.  Ed. 
121,  5  S.  Ct.  813;  Covington,  etc..  Road 
Co.  V.  Sandford,  164  U.  S.  578,  41  L.  Ed. 
560,  17  S.  Ct.  198;  Rochester  i'.  Rochester 
R.  Co.,  182  N.  Y.  99,  70  L.  R.  A.  773,  74 
N.  E.  953  and  Memphis,  etc.,  R.  Co.  v. 
Railroad  Comm'rs,  112  U.  S.  609,  28  L. 
Ed.    837,    5    S.    Ct.    299. 

"A  distinction  must  not  be  overlooked, 
when  consideiing  the  assignability  of  a 
tax  exemption,  between  those  composing 
a  commuted  system  in  lieu  of  property 
taxes,  and  those  exempting  specific  prop- 
erty. In  the  former  case,  the  system  does 
not  attach  to  the  corporation  or  concern 
thus  taxed,  not  to  any  particular  prop- 
erty, and  necessarily  is  personal,  and  not 
assignable.  But  where  *  *  *  specific  land 
is  granted  to  a  railroad  company  to  aid 
in  the  construction  of  a  railroad,  and  is 
specifically  exempted  from  taxation  until 
sold  by  the  company,  and  the  companj' 
accepts,  in  consideration  of  the  exemp- 
tion, the  exemption  attaches  to  and 
follows  the  land.  New  Jersey  v.  Wilson, 
7  Cranch  164,  3  L.  Ed.  303;  State  v. 
Hicks,  etc.,  Co.,  4  Tenn.  (9  Yerg.)  486; 
International  &  G.  N.  R.  Co.  v.  State, 
75  Tex.  356,  12  S.  W.  685.  In  such  case 
*  *  *  the  exemption  is  appurtenant  to  and 
passes  with  the  land  to  a  succeeding  cor- 
poration assuming  the  burden  attached 
to  it."  Great  Northern  R.  Co.  v.  Min- 
nesota, 216  U.  S.  206,  54  L.  Ed.  446,  30 
S.  Ct.  344,  quoting  from  the  opinion  of 
Minnesota  Court.  106  Minn.  303,  119  N. 
W.  262,  and  affirming  judgment  of  that 
court. 


486-31a.  Berryman  v.  Board,  222  U.  S. 
334,    56    L.    Ed.    225,    32    S.    Ct.    147. 

487-35.  Effect  of  consolidation  or  sale 
of     corporation     enjoying     exemption.-^ 

Great  Northern  R.  Co.  v.  Minnesota,  216 
U.  S.  206,  54  L.  Ed.  446,  30  S.  Ct.  344, 
affirming  Yazoo,  etc.,  R.  Co.  v.  Adams, 
180  U.  S.  1,  45  L.  Ed.  395,  21  S.  Ct.  240; 
Louisville,  etc.,  R.  Co.  v.  Palmes,  109  U. 
S.  244,  254,  27  L.  Ed.  922,  3  S.   Ct.  193. 

"In  Memphis,  etc.,  R.  Co.  v.  Railroad 
Comm'rs,  112  U.  S.  609,  623,  28  L.  Ed. 
837,  5  S.  Ct.  299,  which  was  a  case  in 
which  a  railroad  claimed  an  exemption 
from  taxation,  enjoyed  by  its  predecessor, 
this  court  said:  'It  is,  of  course,  the  law 
in  force  at  the  time  the  transaction  is 
consummated  and  made  effectual  that 
must  lie  looked  to  as  determining  its 
validity  and  effect.  This  is  the  principle 
on  which  this  court  proceeded  in  decid- 
ing the  case  of  Railroad  Co.  v.  Georgia, 
98  U.  S.  359.  25  L.  Ed._  185.  The  fran- 
chise to  be  a  corporation  remained  in, 
and  was  exercised  by,  the  old  corporation 
notwithstanding  the  mortgage  of  its 
charter,  until  the  new  corporation  was 
formed  and  organized;  it  was  then  sur- 
rendered to  the  state,  and  by  a  new  grant, 
then  made,  passed  to  the  corporators  of 
the  new  corporation,  and  was  held  and 
exercised,  by  them  under  the  constitu- 
tional restrictions  then  existing.  *  *  * 
That  case  was  referred  to  with  approval 
in  Mercantile  Bank  v.  Tennessee,  161  U. 
S.  161,  40  L.  Ed.  656,  16  S.  Ct.  461.'" 
Great  Northern  R.  Co.  v.  Minnesota,  216 
U.    S.  206,   54   L.    Ed.   446,   30   S.   Ct.   344. 

Foreclosure  sale. — Where  a  corpora- 
tion enjoys  a  right  of  exemption  from 
taxation  as  to  the  whole  or  part  of  its 
property,  such  exemption  from  taxation 
does  not  pass  under  a  foreclosure  sale 
to  the  purchaser  at  such  sale  when  by 
law  the  rights  and  privileges  of  the  cor- 
poration were  transferred  by  the  sale. 
The  transmission  of  the  privileges  of  the 
corporation  to  another  does  not  embrace 


1178 


Vol.  XI. 


TAXATION. 


487-489 


state  constitution  prohibited  the  granting  of  special  privileges  with  respect  to 
taxation,  of  all  the  rights,  benefits,  privileges,  property,  franchises,  and  inter- 
ests which  the  state  had  acquired  under  its  purchase,  could  not  carry  such 
exemption  to  the  grantee.^^^  An  exemption  from  taxation  will  be  denied  the 
consolidated  company;  when  such  consolidation  was  not  effected  until  after 
a  change  in  the  state  law  forbidding  the  creation  of  corporations  having  im- 
munities from  taxation.-^^^  A  contract  exemption  from  taxation,  made  by  a 
municipality  under  authority  of  law,  for  a  valuable  consideration,  with  one 
of  the  constituent  railway  companies  does  not  pass  to  a  consolidated  company 
organized  after  the  adoption  by  the  state  of  a  constitution  requiring  the  prop- 
erty of  corporations  to  be  taxed  like  that  of  individuals.^^^ 


the  privilege  resulting  from  a  contract 
exemption  from  taxation.  Berryman  v. 
Board,  222  U.  S.  334,  56  L.  Ed.  225,  32 
S.    Ct.   147. 

Sale  of  railroad  under  foreclosure. — ■ 
Great  Xorthern  R.  Co.  v.  Minnesota,  216 
U.  S.  206,  54  L.  Ed.  446,  30  S.  Ct.  344,  ap- 
proving Keokuk,  etc.,  R.  Co.  v.  Missouri, 
152  U.  S.  301,  38  L.  Ed.  450,  14  S.  Ct.  592; 
Morgan  v.  Louisiana.  93  U.  S.  217,  23  L. 
Ed.  860;  Louisville,  etc.,  R.  Co.  v.  Palmes, 
109  U.  S.  244,  27  L.  Ed.  922,  3  S.  Ct.  193; 
Yazoo,  etc.,  R.  Co.  v.  Adams,  180  U.  S. 
1,  23,  45  L.  Ed.  395,  21  S.  Ct.  240. 

"In  Chesapeake,  etc..  R.  Co.  v.  Miller, 
114  U.  S.  176,  29  L.  Ed.  121,  5  S.  Ct.  813, 
a  tax  immunity  was  held  not  to  pass  un- 
der a  mortgage  foreclosure  sale,  under 
the  provision  of  a  statute  which  au- 
thorized the  purchaser  to  become  a  cor- 
poration; and  succeed  to  all  such  fran- 
chises, rights,  and  privileges  pertaining 
to  the  mortgagor  company."  Wright  z\ 
Georgia  R.,  etc..  Co.,  216  U.  S.  420,  54  L. 
Ed.   544,   30   S.   Ct.  243. 

Sale  under  decree  enforcing  statutory 
lien. — In  Picard  v.  East  Tennessee,  etc., 
R.  Co.,  130  U.  S.  637,  642,  32  L.  Ed.  1051, 
9  S.  Ct.  640,  it  was  held  that  such  an 
immunity  would  not  pass  to  a  purchas- 
ing coinpany  under  a  decree  enforcing  a 
statutory  lien,  where  the  sale,  as  con- 
firmed, was  of  the  "property  and  fran- 
chises" of  the  mortgagor  company. 
Wright  T'.  Georgia  R..  etc..  Co.,  216  U.  S. 
420,   54   L.    Ed.   544,   30   S.   Ct.  242. 

487-35a.  Sale  to  state  on  foreclosure. — 
Chicago,  etc.,  R.  Co.  v.  Minnesota,  216  U. 
S.    234,    54    L.    Ed.   460,    30    S.    Ct.    353. 

"A  case  in  point  is  Keokuk,  etc.,  R.  Co. 
V.  Missouri,  152  U.  S.  301,  312,  38  L.  Ed. 
450,  14  S.  Ct.  592."  Great  Northern  R. 
Co.  V.  Minnesota,  216  U.  S.  206.  54  L. 
Ed.   446.   30   S.   Ct.   344. 

"In  Trask  v.  Maguire,  18  Wall.  391, 
409.  21  L.  Ed.  938,  *  *  *  this  court,  speak- 
ing by  Mr.  Justice  Field,  said:  'When  the 
state  became  the  purchaser,  the  immunity 
ceased;  the  property  stood  in  its  hands 
precisely  the  same  as  any  other  unencum- 
bered propert}''  of  the  state,  e.xemot  from 
taxation,  not  by  virtue  of  any  previous 
stipulation  with  the  company,  but  as  all 
property    of  the    state    is  thus    exempt.' " 


Great  Xorthern  R. '  Co.  v.  Minnesota,  216 
U.   S.  206,  54  L.   Ed.  446,  30  S.   Ct.  344. 

489-39a.  Great  Northern  R.  Co.  v.  Min- 
nesota, 216  U.  S.  206,  54  L.  Ed.  446,  30 
S.  Ct.  344,  affirming  Trask  v.  Maguire, 
18  Wall.  391,  21  L.  Ed.  938;  Morgan  v. 
Louisiana,  93  U.  S.  217,  23  L.  Ed.  860,  and 
Louisville,  etc.,  R.  Co.  v.  Palmes,  109  U 
S.   244,   27   L.   Ed.   922,   3    S.   Ct.   193. 

Consolidation  subsequent  to  adoption 
of  constitution. — Great  Xorthern  R.  Co. 
V.  ]^Iinnesota,  216  U.  S.  206,  54  L.  Ed.  446, 
30  S.  Ct.  344,  approving  Louisville,  etc., 
R.  Co.  V.  Palmes,  109  U.  S.  244,  27  L.  Ed. 
922,  3  S.  Ct.  193;  and  Trask  v.  Maguire, 
18    Wall.   391,    21    L.    Ed.    938. 

Yazoo,  etc.,  R.  Co.  v.  Adams,  180  U.  S. 
1,  45  L.  Ed.  395,  21  S.  Ct.  240,  reviewed 
the  judgment  of  the  supreme  court  of 
Mississippi  in  77  Miss.  194,  60  L.  R.  A. 
33,  24  So.  200,  317,  28  So.  956.  The  Mis- 
sissippi court,  held  that  a  grant  of  ex- 
emption from  taxation  to  a  railroad  com- 
pany was  void  under  the  constitution  of 
1869  of  that  state,  and  that  the  organiza- 
tion of  a  consolidated  company  imder  the 
constitution  of  1890  cut  ofT  an  exemption 
from  taxation  granted  to  a  constituent 
company  prior  to  the  adoption  of  that 
constitution.  This  judgment  was  af- 
firmed, in  the  supreme  court  which, 
speaking  by  Mr.  Justice  Brown,  held 
"that  the  consolidation  of  October  24, 
1892,  created  a  new  corporation,  and  that 
while  it  might  be  true  that  the  e.xemp- 
tion  in  question  would  pass  to  the  con- 
solidated company  by  the  terms  of  the 
legislature  under  review,  yet,  when  the 
constitutional  provision  of  1890  took  ef- 
fect, the  consolidated  corporation,  or- 
ganized under  that  constitution,  was  no 
longer  entitled  to  the  exemption."  Yazoo, 
etc.,  R.  Co.  V.  Vicksburg,  209  U.  S.  358, 
52   L.   Ed.  833.  28   S.   Ct.   510. 

489-40a.  So  held  under  constitution  of 
Mississippi  1890,  §  181.  Yazoo,  etc.,  R. 
Co.  v.  Vicksburg,  209  U.  S.  358,  52  L.  Ed. 
833.  28  S.   Ct.  510. 

"The  effect  of  organizing  the  consoli- 
dated corporation  after  the  adoption  of 
the  Mississippi  constitution  of  1890  was 
to  bring  the  new  corporation  within  the 
terms  and  limitations  of  that  constitu- 
tion, which   prohibited  exempticfn   of  cor- 


1179 


489-490 


TAX  ATI  OX 


Vol.  XI. 


Consolidation  Creates  No  New  Immunity. — No  immunity  from  taxa- 
tion which  did  not  then  exist  is  conferred  by  an  act  authorizing  the  consoHda- 
tion  of  the  stocks  of  two  railway  companies,  which  should  continue  to  exer- 
cise all  powers  and  privileges  conferred  by  existing  law  upon  the  corporation 
o^  that  name,  and  be  under  all  the  liabilities  and  restrictions  imposed  upon  it.-*"^ 

4.  Powe;r  of  Legislature  to  Transmute  Exemption — a.  In  General. — 
Where  a  corporation  was  incorporated  under  a  general  act  creating  certain  obli- 
gations, it  can  not  receive  by  transfer  from  another  company  an  exemption 
inconsistent  with  its  own  charter  or  the  constitution  and  laws  of  the  state  then 
applicable,  and  this  even  though  the  legislative  authority  undertook  to  transfer 
the  exemption  by  words  which  clearly  included  it.^^^ 

b.  Construction  of  Particular  Words  and  Phrases  in  Grant. — It  is  now  the 
rule,  notwithstanding  the  earlier  decisions  and  dicta  to  the  contrary,  that  a 
statute  authorizing  or  directing  the  grant  or  transfer  of  the  "privileges"  of  a 


porate  property  from  taxation."  Yazoo, 
etc.,  R.  Co.  V.  Vicksburg.  209  U.  S.  358, 
52  L.  Ed.  833,  28  S.  Ct.  501;  Great  North- 
ern R.  Co.  V.  Minnesota.  216  U.  S.  206, 
54   L.    Ed.    446,    30    S.    Ct.    344. 

"The  exemption  to  the  former  con- 
stituent company  could  not  inure  to  the 
consolidated  company  without,  in  effect, 
ignoring  the  constitutional  provision." 
Yazoo,  etc.,  R.  Co.  v.  Vicksburg,  209  U. 
S.  358,  365,  52  L.  Ed.  833,  28  S.  Ct.  510; 
Great  Northern  R.  Co.  v.  Minnesota.  216 
U.    S.   206,   54   L.    Ed.   446,   30    S.    Ct.   344. 

"The  formation  of  the  consolidated 
company  was  not  imposed  upon  the  com- 
plainant; it  had  the  privilege  of  standing 
upon  such  rights  as  it  had  by  contract 
or  otherwise  under  the  former  legislation 
in  force  before  the  adoption  of  the  new 
constitution.  When  it  saw  fit  to  enter 
into  the  consolidation  and  form  a  new 
corporation  in  1892,  the  constitution  then 
in  force  in  the  state  became  the  law  of 
its  corporate  being,  and  the  requirement 
that  corporate  property  should  not  be 
exempt  from  taxation  then  became  bind- 
ing upon  it.  as  upon  all  other  corpora- 
tions formed  under  the  new  organic 
law."  Yazoo,  etc.,  R.  Co.  t'.  Vicksburg, 
209  U.  S.  358,  52  L.  Ed.  833,  28  S.  Ct.  510; 
Great  Northern  R.  Co.  v.  Minnesota.  215 
U.    S.   206.    54    L.    Ed.   446,   30   S.    Ct.   344. 

489-40b.  Consolidation  creates  no  new 
immunity. — Wright  v.  Georgia  R.,  etc.,  Co., 
216  U.  S.  420,  54  L.  Ed.  544,  30  S.  Ct.  242, 
following  Central  R.,  etc.,  Co.  v.  Georgia,  92 
U.  S.  665,  23  L.  Ed.  757.  So  holding  as 
to  Act  Ga.  Jan.  21,  1852  (1851c-52,  p.  120). 

In  Central  R.,  etc.,  Co.  v.  Georgia,  92 
U.  S.  665,  23  L.  Ed.  757,  it  was  held  that 
the  tax  exeinption  which  the  Central 
Railroad  had  enjoyed  continued  after  the 
consolidation  in  respect  of  the  property 
of  that  company,  but  that,  as  the  Macon 
company,  consolidated  with  it,  had  no 
exemption,  its  property  continued  sub- 
iect  to  taxation.  Wright  v.  Georgia  R.,  etc 
Co.,  216  U.  S.  420,  54  L.  Ed.  544,  30  S. 
Ct.    242.    * 


490-41a.  Yazoo,  etc.,  R.  Co.  v.  Vicks- 
burg, 209  U.  S.  358,  52  L.  Ed.  833,  28  S. 
Ct.  510,  following  Rochester  R.  Co.  v. 
Rochester,   205   U.    S.   236,   51   L.    Ed.   784, 

27  S.  Ct.  469;  Great  Northern  R.  Co.  v. 
Minnesota,  216  U.  S.  206,  54  L.  Ed.  446, 
30   S.   Ct.  344. 

In  Rochester  R.  Co.  r.  Rochester,  205 
U.  S.  236,  51  L.  Ed.  784,  27  S.  Ct.  469. 
The  court  said:  "The  principle  govern- 
ing these  decisions,  so  plain  that  it  needs 
no  reasoning  to  support  it,  is  that  those 
who  seek  and  obtain  the  benefit  of  a 
charter  of  incorporation  must  take  the 
benefit  under  the  conditions  and  with 
the  burdens  prescribed  by  the  laws 
then  in  force,  whether  written  in  that 
constitution,  in  general  laws,  or  in  the 
charter  itself."  Great  Northern  R.  Co. 
V.  Minnesota,  216  U.  S.  206,  54  L.  Ed. 
446,  30  S.  Ct.  344;  Yazoo,  etc.,  R.  Co.  v. 
Vicksburg,    209   U.    S.    358,   52    L.    Ed.    833, 

28  S.    Ct.   510. 

Renewals  of  exemptions. — "The  inhibi- 
tion of  the  constitution  applies  in  all  its 
force  against  the  renewal  of  an  exemp- 
tion equally  as  against  its  original  crea- 
tion; and  this  inhibition  the  legislature 
could  not  disregard  in  providing  for  the 
sale  of  the  property  which  it  had  pur- 
chased." Great  Northern  R.  Co.  v.  Min- 
nesota, 216  U.  S.  206,  54  L.  Ed.  446,  30 
S.  Ct.  344,  quoting  Trask  z:  Maguire,  18 
Wall.  391,  21  L.  Ed.  938,  and  stating 
that:  "The  Trask  Case  was  cited  with 
approval  in  Morgan  v.  Louisiana,  93  U.  S. 
217,  23  L.  Ed.  860,  and  Louisville,  etc., 
R.  Co.  7'.  Palmes,  109  U.  S.  244,  254, 
27    L.    Ed.    922,    3    S.    Ct.    193." 

The  prohibition  which  forbids  the  leg- 
islature from  exempting  the  property  of 
railroad  corporations  from  taxation  makes 
it  impossible  for  the  legislature  to  create 
such  a  corporation  capable  in  law  of  ac- 
quiring and  holding  property  free  from 
liability  to  taxation.  Great  Northern  R. 
Co.  z:  Minnesota,  216  U.  S.  206.  54  L.  Ed. 
446,  30  S.  Ct.  344. 


1180 


\'ol.  XI. 


TAXATIOX. 


491-495 


corporation  which  enjoys  immunity  from  taxation  or  reguhition  should  not  be 
interpreted  as  including  that  immunity.-*-""' 

Privilege. — See  note  46.  Incorporatmg  a  railway  company  witli  power  to 
exercise  all  the  powers  and  privileges  conferred  by  an  earlier  act  incorporating 
another  railway  company  does  not  confer  upon  the  new  corporation  the  im- 
munity from  taxation  enjoyed  by  the  earlier  company  under  its  charter.-**'* 

G.  Property  Entitled  to  Exemption — 4.  Corpor.ations — a.  Corporate 
Stock — (  1  )  Exonption  of  Capital  Stock  as  Exemption  of  Shareholders. — See 
note  70. 

(3)  Exemption  of  Stock  as  Exemption  of  Property  Represented  Thereby. — ■ 
The  word  "stock"  is  not  uniformly  used  to  designate  the  capital  of  a  corpora- 
tion, although  its  primary  meaning  is  capital,  in  whatever  form  it  may  be  in- 
vested. Indeed,  it  is  not  at  all  unusual  to  find  the  word  used  synonymouslv 
with  "shares'"  and  meaning  the  certificates  issued  to  subscribers  to  the  stock. 
It  is  therefore  important  to  look  at  the  connection  in  which  the  word  is  used 


491-45a.  Wright  v.  Georgia  R..  etc..  Co.. 
216  U.  S.  420,  54  L.  Ed.  544,  30  S.  Ct.  242. 
quoting  Rochester  R.  Co.  v.  Rochester, 
205  U.  S.  236,  51   L.   Ed.  784,  27   S.   Ct.  469. 

The  early  cases  support  the  proposition 
that  under  the  power  to  exercise  all  t!ie 
powers  and  privileges  conferred  by  an 
act  incorporating  a  company,  an  im- 
munity from  taxation  granted  to  an  earlier 
company  passes  to  the  latter  one.  See 
Humphrey  v.  Pergues,  16  Wall.  244,  21  L. 
Ed.  326;  Chesapeake,  etc.,  R.  Co.  r.  Vir- 
ginia, 94  U.  S.  718,  24  L.  Ed.  310;  Cen- 
tral R.,  etc.,  Co.  z:  Georgia,  92  U.  S.  665, 
676,  23  L.  Ed.  757,  and  Tennessee  :■. 
Whitworth,  117  U.  S.  139,  29  L.  Ed.  833.  6 
S.  Ct.  649.  In  later  cases  this  doctrine  was 
questioned.  See  Chesapeake,  etc.,  R.  Co. 
z:  Miller,  114  U.  S.  176,  29  E.  Ed.  121,  5 
S.  Ct.  813,  and  Picard  v.  East  Tennessee, 
etc.,  R.  Co.,  130  U.  S.  637,  32  L.  Ed.  1051, 
9   S.   Ct.  640. 

"In  Wilmington,  etc.,  R.  Co.  z'.  Als- 
brook,  146  U.  S.  279,  297,  36  L.  Ed.  972, 
13  S.  Ct.  72;  Keokuk,  etc.,  R.  Co.  z:  Mis- 
souri, 152  U.  S.  301,  38  L.  Ed.  450.  14  S. 
Ct.  592;  and  Phoenix  Fire,  etc.,  Ins.  Co. 
v.  Tennessee,  161  U.  S.  174,  40  L.  Ed. 
660,  16  S.  Ct.  471,  the  earlier  cases  were 
also  much  shaken,  so  far  as  they  tended 
to  establish  that  a  tax  exemption  would 
be  transferred  by  legislative  enactment 
conferring  upon  one  road  the  powers  or 
franchises  or  privileges  of  another,  in 
the  absence  of  other  language  or  preg- 
nant circumstances,  showing  a  plain  in- 
tent to  confer  such  exemption."  Wright 
z:  Georgia  R..  etc.,  Co.,  216  U.  S.  420,  54 
L.   Ed.   544,   30  S.   Ct.  242. 

"In  Picard  z:  East  Tennessee,  etc.,  R. 
Co.,  130  U.  S.  637,  642,  32  L.  Ed.  1051.  9 
S.  Ct.  640,  *  *  *  it  was  said:  "It  is  true 
there  are  some  cases  where  the  term 
"privileges"  has  been  held  to  include  im- 
munity from  taxation,  but  that  has  gen- 
erally been  where  other  provisions  of  the 
act  have  given  such  meaning  to  it.  The 
latter,  and,  we  think,  the  l)etter,  opinion, 
is  that  unless  other  provisions  remove  all 


doubt  of  the  intention  of  the  legislature 
to  include  the  immunity  in  the  term 
■■privileges''  it  will  not  l^e  so  construed. 
It  can  have  its  full  forge  by  confining  it 
to  other  grants  to  the  corporation.' '" 
Wright  v.  Georgia  R.,  etc..  Co.,  216  U.  S. 
420,    54    L.    Ed.    544,   30   S.   Ct.   242. 

491-46.  "The  word  'privilege'  has  been 
construed  by  this  court  not  to  include  a 
contract  of  exemption  from  taxation." 
Berryman  v.  Board,  222  U.  S.  334,  56  L. 
Ed.  225,  32   S.   Ct.   147. 

491-46a.  Wright  v.  Georgia  R.,  etc., 
Co.,  216  L'.  S.  420,  54  L.  Ed.  544,  30  S. 
Ct.    242. 

"It  is  one  thing  to  have  authority  to 
"exercise"  all  the  "powers  and  privileges' 
of  another  company,  and  another  thing 
to  enjoy  an  exemption  from  taxation. 
The  "exercise'  of  the  'powers  and  privi- 
leges' of  the  company  referred  to  was 
reasonably  essential  to  the  construction 
and  operation  of  the  independent  rail- 
road. Its  immunity  from  taxation  was 
not.  See  Wilmington,  etc.,  R.  Co.  v.  Als- 
brook,  146  U.  S.  279,  295,  36  L.  Ed.  972, 
13  S.  Ct.  72,  and  National  Bank  z:  United 
States,  101  U.  S.  1,  25  L.  Ed.  979.  The 
power  of  taxation  is  never  to  be  re- 
garded as  surrendered  or  bargained  away 
if  there  is  room  for  rational  doubt  as  to 
the  purpose."  Wright  z\  Georgia  R., 
etc.,  Co.,  216  U.  S.  420,  54  L.  Ed.  544,  30 
S.    Ct.   242. 

495-70.  In  Farrington  v.  Tennessee,  95 
U.  S.  679,  687,  24  L-  Ed.  558,  and  Bank 
z:  Tennessee,  161  U.  S.  134.  137,  40  L.  Ed. 
645,  16  S.  Ct.  456,  "something  is  said  in 
an  argumentative  way  about  the  tax- 
ability of  a  bank's  surplus  whose  capital 
was  exempt.  That  might  well  be  if  the 
bank  should  choose  to  enlarge  its  actual 
capital  in  the  business  by  using  profits 
as  capital  instead  of  distril)Uting  them  as 
profits  to  the  shareholders,  where  the 
exemption  was  of  a  specific  amount  of 
capital."  Wright  z:  Georgia  R.,  etc.,  Co.. 
216  U.   S.  420,  54  L.   Ed.  544,  30  S.   Ct.  242. 


1181 


496-499 


TAXATION. 


Vol.  XI. 


when  an  exemption  or  substituted  method  of  taxation  is  involved,  to  see  whether 
the  legislative  intent  was  to  exempt  the  capital,  in  whatever  form  invested,  or 
the  shares  of  stock  in  the  hands  of  the  shareholders.'^^^ 

Capital  Stock  and  Shares  Distinguished. — There  is  an  obvious  distinc- 
tion between  the  capital  stock  of  an  incorporated  company  and  the  "shares"  of 
the  company.  The  one  is  the  capital  upon  which  the  business  is  to  be  under- 
taken, and  is  represented  by  the  property  of  every  kind  accjuired  by  the  com- 
pany. Shares  are  the  mere  certificates  which  represent  a  subscriber's  contribu- 
tion to  the  capital  stock,  and  measure  his  interest  in  the  company.  The  charter, 
plainly  enough,  recognized  this.'^'^'^ 

b.  Banks — (2)  Inviolability  of  Contract — cc.  Limitations  of  General  Rule. 
— See  note  82. 

dd.  Changing  Day  of  Assessment.— ConirdiCi  obligations  created  by  a  state 
statute  exempting  a  bank  from  any  other  taxes  than  those  therein  prescribed 
are  not  impaired  by  a  subsequent  statute  changing  the  day  when  the  bank  is 
to  report  its  property  for  assessment,  the  effect  of  which  is  to  impress  a  lien 
on  its  property  which  continues,  notwithstanding  the  repeal  of  its  charter  be- 
fore liability  under  the  former  statute  attached,  and  the  transfer  of- its  assets 
to  another  bank,-  organized  for  the  purpose  of  taking  them  over.^^^ 

c.  Railroads — (1)  Inviolability  of  Contract. — A  law  which  imposes  a  tax 
upon  the  franchise  of  a  railroad  company  whose  property  is  exempt  from 
taxation  is  a  law  in  derogation  of  the  exemption  contract. '^'^^  A  tax  upon  the 
franchise  of  a  railway  company  impairs  the  obligation  of  a  charter  exemption 
from  any  property  tax  other  than  one  based  on  its  net  profits. ^^'^  The  excess 
of  the  value  of  a  railway  and  its  appurtenances  over  the  nominal  value  of  its 
authorized   capital   stock,   the   result   of   natural   increase   in   the   value   of   such 


496-74a.  Wright  v.  Georgia  R.,  etc.,  Co., 
216  U.  S.  420,  54  L.  Ed.  544,  30  S.  Ct.  242, 
following  Powers  v.  Detroit,  etc.,  R. 
Co.,  201  U.  S.  543,  559,  50  L.  Ed.  860,  26 
S.   Ct.  556. 

Capital,  in  whatever  form  invested,  ap- 
propriate to  the  purpose  of  the  company, 
and  not  merely  the  shares  held  by  stock- 
holders, must  be  regarded  as  meant  by 
the  word  "stock,"  as  used  in  a  provision 
of  a  railway  charter  that  the  stock  of  the 
company  and  its  branches  shall  be  ex- 
empt from  taxation  for  seven  years,  and 
after  that  shall  be  subject  to  a  tax  not 
exceeding  a  given  per  cent  upon  the  net 
proceeds  of  their  investments,  in  view 
of  the  recognition  in  other  provisions  of 
the  charter  of  the  distinction  between 
capital  stock  and  "shares,"  and  of  at  least 
sixty  years'  legislative  and  executive  ac- 
quiescence in  reading  this  partial  exemp- 
tion as  applicable  to  the  capital  stock  of 
the  company,  and  of  a  series  of  decisions 
of  the  highest  state  court,  holding  either 
that  the  whole  of  the  capital  was  exempt, 
in  whatever  form  invested,  or  so  much  of 
the  investment  as  corresponded  in  value 
to  the  authorized  capital  stock.  Decree, 
Georgia  R.  &  Banking  Co.  v.  Wright  (C. 
C.  1904),  132  F.  912,  affirmed.  Wright  v. 
Georgia  R.,  etc.,  Co.,  216  U.  S.  420,  54 
L.    Ed.   544,   30   S.    Ct.   242. 

"Their  investments,"  as  used  in  the 
charter  means  the  property  into  which 
the   company's  capital  has  gone.     Wright 


V.  Georgia  R.,  etc.,  Co.,  216  U.  S.  420.  54 
L.   Ed.   544,   30    S.    Ct.   242. 

496-74b.  Capital  stock  and  shares  dis- 
tinguished.— Wriglu  c'.  Georgia  R.,  etc., 
Co.,  216  U.  S.  420,  54  L.  Ed.  544,  30  S. 
Ct.   242. 

498-82.  An  irrevocable  contract  was 
not  created  between  the  state  'and  a  na- 
tional bank  accepting  the  provisions  of 
Acts  Ky.  1885-86,  c.  1233,  known  as  the 
"Hewitt  Act,"  fixing  the  rate  of  taxation, 
since  that  act  expressly  provided  that  it 
t^hould  be  subject  to  a  general  law  re- 
serving the  right  to  repeal,  alter,  or 
amend  all  grants  to  corporations.  Citi- 
zens' Nat.  Bank  v.  Kentucky,  217  U.  S. 
443,  54  L.  Ed.  832,  30  S.  Ct.  532,  citing 
Citizens'  Sav.  Bank  v.  Owensboro,  173 
U.  S.  636,  43  L.  Ed.  840,  19  S.  Ct.  530,  and 
Covington  v.  First  Nat.  Bank.  198  U.  S. 
100,    49    L.    Ed.    963,   25    S.    Ct.    562. 

498-82a.  Judgment  (1906),  94  S.  W. 
620.  29  Ky.  Law  Rep.  643,  affirmed.  Bank 
V.  Kentucky,  207  U.  S.  258,  52  L.  Ed.  197, 
28    S.    Ct.   82. 

499-87a.  Wright  v.  Georgia  R.,  etc.,  Co.. 
216  U.  S.  420,  54  L.  Ed.  544,  30  S.  Ct.  242; 
Wilmington  Railroad  v.  Reid,  13  Wall. 
264,  20  L.  Ed.  568;  Gulf,  etc.,  R.  Co.  v. 
Hewes,  183  U.  S.  66,  77,  46  L-  Ed.  86,  22 
S.    Ct.   26. 

499-87b.  Decree,  Georgia  R.  &  Bank- 
ing Co.  V.  Wright  (C.  C.  1904),  132  F.  912, 
affirmed.  Wright  v.  Georgia  R.,  etc.,  Co., 
216  U.  S.  420,  54  L.   Ed.  544,  30  S.  Ct.  242. 


1183 


Vol.  XI.  TAXATION.  499-508 

property,  and  of  renewals,  alterations,  and  betterments  made  from  time  to 
time  is  included  in  the  partial  exemption  from  taxation  under  the  charter  pro- 
vision that  the  stock  of  the  company  and  its  branches  shall  be  wholly  exempt 
for  seven  years,  and  after  that  shall  be  subject  to  a  tax  not  exceeding  a  given 
per  cent  on  the  net  proceeds  of  their  investments ;  the  legislative  purpose  being 
otherwise  plain  that  the  authorized  capital  be  adequate  to  the  construction 
and  equipment  of  the  roads. ^""^ 

H.  Commencement  and  Termination  of  Exemption — 3.  Duration. — 
The  partial  exemption  from  taxation  under  a  charter  provision  that  the  stock 
of  a  railway  company  and  its  branches  shall  be  wholly  exempt  for  seven  years, 
"and  after  that"  shall  be  subject  to  a  tax  not  exceeding  a  given  per  cent  on 
the  net  proceeds  of  their  investments,  can  not  be  regarded  as  limited  to  the 
36  years  during  which  the  company  was  to  have  exclusive  rights  within  a  de- 
fined territory,  on  the  theory  that  the  words  "and  after  that"  do  not  mean 
"thereafter,"  and  do  not  refer  to  the  limitation  immediately  preceding,  but 
to  the  36  years'  limitation  of  the  exclusive  right  regulated  by  the  preceding 
part  of  the  same  section  of  the  charter. ^^^ 

4.  Revivor  of  Exemption  oe  Railroad  Void  eor  Failure  to  Construct  in 
Time  Limit. — A  charter  exemption  from  taxation  which  has  ceased  and  be- 
come void  for  failure  to  construct  a  railroad  within  the  time  limited  by  its 
charter  can  not  be  revived  by  a  subsequent  statute,  enacted  when  the  state 
constitution  prohibited  the  granting  of  special  privileges  with  respect  to  taxa- 
tion, recognizing  the  legal  existence  of  the  railway  company  at  that  time,  and 
waiving  the  right  to  declare  a  forfeiture.^-'' 

VI.    Assessment  and  Levy. 

A.  General  Principles — 4.  Due  Process  of  Law — a.  General  Statement. 
— See  note  34. 

b.  Notice  and  Hearing — (1)  Necessity  Generally. — The  assessment  of  a 
tax  is  action  judicial  in  its  nature,  requiring  for  the  legal  exertion  of  the  power 
such  opportunity  to  appear  and  be  heard  as  the  circumstances  of  the  case  re- 
quire.-^"''  Due  process  of  law  is  not  afiforded  by  the  system  of  taxation  pre- 
scribed by  the  Georgia  Political  Code,  under  which,  as  construed  by  the  highest 
state  court,  the  valuation  of  property  not  returned  for  taxation,  made  by  the 
assessing  officer  without  notice  or  opportunity  for  hearing,  concludes  the  tax- 
payer, both  in  the  tax  proceedings  and  in  the  courts,  unless  he  can  show  bad 
faith,  even  where  he  may  have  withheld  the  property   from   return  upon  rea- 

499-87C.    Wright  v.  Georgia  R.,  etc.,  Co.,  except    by   judicial    proceedings    for   relief 

216  U.  S.  420,  54  L.  Ed.  544,  30  S.  Ct.  242.  from    the    assessment,    and    its    action    is 

See    ante,    "Exemption    of    Stock    or    Ex-  therefore     repugnant     to     Const.     U.     S.. 

emption        of         Property         Represented  14th    Amend.,    if    it    denies    any    one    the 

Thereby,"  V,  G,  4,  a,  (3).  due     process     of    law    protected    by    that 

502-12a.     Decree,    Georgia    R.    &    Bank-  amendment   against    impairment    by     the 

ing    Co.    V.   Wright    (C.    C.    1904),    132    F.  ^tate.      Judgment,    Chicago    Union    Trac- 

912,  afifirmed.     Wright  v.  Georgia  R.,  etc.,  tion    Co.   v.   State    Board   of   Equalization 

Co.,    216    U.    S.   420,    54    L.    Ed.    544,    30    S.  (C   C.    1902).    114   F.    557,    affirmed.    Ray- 

Ql    949  mond    V.      Chicago     Union     Tract.      Co., 

50i-12b.    Judgment,      State    v.     Chicago  ^07    U.S.    20,    52    L.  Ed.    78     28    S.    Ct.  7; 

Great    Western    Ry.    Co.    (1908).    119    N.  ?^^^°"    /•  ^  "'^o^°9<? J    r.    ^Z^' 

W.  211,  106  Minn.  290,  affirmed.    Chicago,  ^\il\f      xA-        '  r     T  1       .        t?     r 

r>     n  AT-  i      c-if   -rj    c     -P,<  508-37a.     Notice. — Central,    etc.,    R.    Co. 

etc..    R.   Co.  V.    Minnesota,   216    J.   S.   234.  •■,,  .   ,,     _^„   ^t     c    10-     -9   t      x^a     io< 

t^A    T      -CA     ^cA     or,    c     r<4.     '>-■>  '•    Wright,    207    U.    b.    12*.    ;)2    L.    Ed.    134, 

54    L,.    t,d.    460,    30    b.    Lt.    3o3.  _„    o     /<L     1™       ■^-         r^      -j  -kt         r\ 

^,      T,,-      •  r  28   S.   Ct.  47,  Citing  Davidson  v.  New  Or- 

507-34.  The  Illinois  state  board  of  equal-  leans,  96  U.  S    97,  24  L.   Ed.  616;   Weyer- 

ization  in  making  an  assessment  pursuant  hauser  z:  Minnesota,   176  U.   S.  550,  44  L. 

to    the    supposed    command    of  a   writ    of  pj.  533,  20  S.  Ct.  485;  Hagar  v.  Reclama- 

mandamus  represents  the   state,   there   oe-  tion    Dist.    No.    108,   111    U.    S.   701,    28    L. 

ing   no   method   of   reviewing   its   decision  gj    559^   4   g    Q^    gss. 

1183 


508-511  TAXATION.  Vol.  XI. 

sonable  grounds,  and  in  the  honest  beHef  that  it  is  not  taxable.^'*" 

(2)  Character  of  Notice  and  Hearing. — Tax  proceedings  resulting  in  a  tax 
sale  and  deed  under  which  property  marked  "Reserved"  on  an  official  plat  was 
described  as  certain  numbered  blocks,  not  designated  on  the  plat,  but  which 
would  have  borne  such  numbers  if  the  tract  reserved  had  been  divided  into 
blocks  and  lots  and  numbered  in  harmony  with  the  numbering  of  the  rest  of 
the  tract,  do  not  deprive  the  owner  of  his  property  without  due  process  of  law\ 
where  he  not  only  has  notice  from  the  record,  but  notice  in  fact,  that  such 
property  was  listed  and  assessed  for  taxes  under  such  description.^*^^ 

3^.  Entry  and  Re^cord  oi''  Assessment. — The  entry  of  an  assessment  of 
a  railway  franchise  tax  under  the  name  of  the  railway  company  w^hich  for- 
merly owned  the  franchise  furnishes  no  ground  for  the  contention  that  the 
due  process  of  law  guaranteed  by  Const.  U.  S.,  Amend.  14,  was  denied  by  the 
judicial  enforcement  of  the  tax  against  the  company  operating  the  railroad 
under  a  power  of  attorney  from  the  purchaser  at  a  judicial  sale,  which  in  mak- 
ing its  report  for  assessment  purposes,  named  the  former  railway  company  as 
the  owner  of  the  road.'*^^  The  judicial  enforcement  of  a  railway  franchise 
tax  does  not  deny  the  railway  company  the  due  process  of  law  guaranteed 
by  Const.  U.  S.,  Amend.  14,  because  the  court  treated  the  entry  of  the  assess- 
ment in  the  form  provided  for  the  purpose  upon  the  jacket  or  envelope  in- 
closing the  report  of  the  railway  company  as  sufficient  record  of  the  assess- 
ment.^ *''' 

c.  Taxation  in  Rent. — If  there  is  no  personal  liability  the  levy  of  a  tax  is 
a  proceeding  in  rem,  whatever  requirements  may  be  made  for  notice  by  naming 
parties  in  interest,  and  even  if  naming  them  is  a  condition  to  the  validity  of 
the  tax.  Indeed  it  may  be  assumed  that  primarily  it  is  such  a  proceeding  in 
any  event,  and,  as  a  proceeding  in  rem,  might  be  sustained,  if  the  personal  lia- 
bility failed."*^^  The  notion  of  a  proceeding  in  rem  is  at  the  bottom  of  the 
usual  tax  on  land,  even  where  there  is  a  personal  liability  superadded.  This 
is  shown  by  the  doctrine  that  a  valid  tax  sale  cuts  off  all  titles  and  starts  a  new 
one.-^s'^ 

e.  Classification  of  Property  A^ot  Prohibited. — The  state  may  classify  the 
subjects  of  taxation,  so  long  as  all  persons  similarly  situated  are  treated  alike. ^'''' 

508-37b.    Central,  etc.,  R.  Co.  z'.  Wright,  defined   by   the    limits    of  a   separate   title 

207  U.   S.  127,  52  L.  Ed.  134,  28  S.   Ct.  47,  and    should    simply    give    notice    by     suffi- 

reversing  54   S.   E.   52,   125   Ga.   617.  cient  means  to  all  the  world  that  it  would 

509-40a.    Judgment   (1906),  87  P.  257,  44  be    sold    unless,    within    a     certain      time, 

Wash.    239,    affirmed.      Ontario    Land    Co.  some    party   in    interest    should    see    fit   to 

r.  Yordy,  212  U.  S.  152,  53  L.  Ed.  449,  29  pay    a    certain    sum,    such     a      proceeding 

S.  Ct.  278.  would  be  as  valid  as  the   imposition  of  a 

510-46a.  Illinois  Cent.  R.  Co.  v.  Ken-  personal  liability  upon  individuals  accord- 
lucky,  218  U.  S.  551,  54  L.  Ed.  1147,  31  ing  to  their  interest.  There  is  no  men- 
S.  Ct.  95,  citing  Castillo  z'.  McConnico,  tion  of  allowances  or  deductions  upon  a 
168  U.  S.  674,  682.  42  L.  Ed.  622,  18  S.  Ct.  proceeding  in  rem.  All  interests  are  pro- 
229;  Witherspoon  z'.  Duncan,  4  Wall.  210,  ceeded  against  at  once.  Paddell  z'.  New 
IS    L.    Ed.   339.  York,   211   U.   S.   446,   53   L.   Ed.   275,  29   S. 

510-46b.     Illinois    Cent.    R.    Co.   z\    Ken-  Ct.   139,   citing  Witherspoon  v.  Duncan,   4 

tucky,    218    U.    S.    551.    54    L.    Ed.    •MJ7,    :^1  Wall.   210,  217,    18    L.    Ed.   339;    Castillo  r. 

S.    Ct.   95,   affirming  judgment    (1908),   108  McConnico.   168  U.   S.   674,   681,  42  L.   Ed. 

S.   W.   245,   128   Ky.   268.  022,    18    S.    Ct.    229. 

511-48a.    Paddell  v.   New   York.   211    U.  511-50a.     Kentucky   Union    Co.   v.   Ken- 

S.    446,    53    L.    Ed.   275.   29    S.    Ct.    139.  ^^^ky,   219   U.    S.    140,   55    L.   Ed.   137,   31    S. 

511-48b.    Paddell  v.   New  York,   211   U.  Ct.  171,  following  Michigan  Cent.   R.  Co. 

S.   446,  53  L.   Ed.  275,  29  S.  Ct.  139,  citing  v.    Powers,    201    U.    S.   245,   50   L.    Ed.   744, 

Hefner    v.    Northwestern    Life    Ins.    Co..  26    S.    Ct.   459. 

12.3  U.  S.  747,  751,  31  L.  Ed.  309,  8  S.  Ct.  "This    law   applies    with    equal    force    to 

337.  all  who  are  in  a  condition  to  come  within 

If  a  tax  notice  should  be  operated  only  its   terms.     The   fact   that   the   plaintiff   in 

in    rem,    agamst    a    lot    or   parcel    of   land  error  did  not  acquire  the  land  until  after 

1184 


Vol.  XI. 


TAXATION. 


511-512 


Assessing  the  franchises  and  other  property  of  certain  corporations  at  a  dif- 
ferent rate  and  by  a  dififerent  method  from  that  employed  for  other  corpora- 
tions of  the  same  class  for  the  same  year,  which  results  in  enormous  disparity 
and  discrimination,  denies  the  due  process  of  law  and  equal  protection  of  the 
laws  protected  by  U.  S.  Const.,  14th  Amend.,  against  impairment  by  a  state.^*^" 

g.  Assessment  of  Back  Taxes,  and  Reassessments. — Before  an  assessment 
of  taxes  can  be  made  upon  omitted  property,  notice  to  the  taxpayer,  with  an 
opportunity  to  be  heard,  is  essential,  and  somewhere  during  the  process  of 
the  assessment  the  taxpayer  must  have  an  opportunity  to  be  heard,  and  this 
notice  must  be  provided  as  an  essential  part  of  the  statutory  provision,  and 
not  awarded  as  a  mere  matter  of  favor  or  grace.  Where  the  procedure  in  the 
state  court  gives  the  taxpayer  an  opportunity  to  be  heard  upon  the  value  of 
his  property  and  extent  of  the  tax  in  a  proceeding  to  enjoin  its  collection,  the 
requirement  of  due  process  of  law  is  satisfied. ^^a 

Retrospective  Assessment. — The  retrospective  feature  of  a  statute  which 
merely  provides  a  new  remedy  for  assessment  and  collection  of  a  tax  liability 
imposed  by  prior  law  of  the  state  upon  resident  holders  of  shares  of  bank 
stock  does  not  operate  to  deny  due  process  of  law  to  such  shareholder. ^"^^    Only 


the  delinquencies  had  occurred  can  not 
prevent  the  operation  of  the  law  against 
it.  In  such  cases  the  doctrine  of  innocent 
purchasers  does  not  apply.  Citizens'  Nat. 
Bank  v.  Kentucky,  217  U.  S.  443,  54  L. 
Ed.  832,  30  S.  Ct.  532."  Kentucky  Union 
Co.  V.  Kentucky,  219  U.  S.  140,  55  L.  Ed. 
137,   31   S.   Ct.   171. 

511-50b.  Raymond  v.  Chicago  Union 
Tract.  Co.,  207  U.  S.  20,  52  L.  Ed.  78,  28 
S.    Ct.   7. 

512-52a.  Central,  etc..  R.  Co.  v.  Wright, 
207  U.  S.  127,  52  L.  Ed.  134,  28  S.  Ct.  47, 
following  Security  Trust,  etc.,  Co.  v.  Lex- 
ington, 203  U.  S.  323,  51  L.  Ed.  204,  27  S. 
Ct.    87. 

512-53a.  Citizens'  Nat.  Bank  v.  Ken- 
tucky, 217  U.  S.  443,  54  L.  Ed.  832,  30  L. 
Ed.    532. 

The  retroactive  features  of  Act  Ky. 
March  21,  1900  (Acts  1900.  c.  23).  making 
it  the  duty  of  certain  ofificers  of  each 
national  bank  to  list  its  shares  of  stock 
for  taxation  and  requiring  the  bank  to 
pay  the  tax  and  a  penalty  for  delinquency, 
subiect  to  deduction  on  account  of  taxes 
paid  by  the  bank  under  other  legislation, 
do  not,  so  far  as  the  shares  of  resident 
shareholders  are  concerned,  operate  to 
deny  due  process  of  law,  althovigh  the 
shareholders  and  the  number  of  shares 
may  not'  be  the  same  as  when  the  lia- 
bility to  taxation  arose,  where  such 
statute  is  construed  by  the  state  courts 
3S  not  imposing  any  new  liability  either 
upon  domestic  shareholders  or  the  bank, 
but  as  simply  providing  another  method 
for  the  assessment  of  shares  which  have 
escaped  assessment  because  not  listed 
for  taxation.  Citizens'  Nat.  Bank  v.  Ken- 
tucky. 217  U.  S.  443,  54  L.  Ed.  832,  30  S. 
Ct.   532. 

"In  Covington  -'.  First  Nat.  Bank,  198 
U.  S.  100,  49  L.  Ed.  963,  25  S.  Ct.  562, 
this    court   was    required    to    consider    the 


effect  of  the  3d  section  of  the  act  in  im- 
posing upon  national  banks  a  liability  for 
the  taxes  and  penalties  upon  such 
omitted  shares,  which,  during  the  years 
covered  by  this  section,  had  been  held 
I>y  persons  not  domiciled  within  the  state 
of  Kentucky.  The  question  arose  under 
a  bill  filed  in  a  circuit  court  of  the  United 
States  to  enjoin  the  imposition  of  lia- 
bility upon  a  national  bank  for  taxes  and 
penalties  upon  shares  held  between  1892 
and  1900  by  persons  who  were  not 
domiciled  in  Kentucky,  it  being  alleged 
that  the  purpose  of  the  proceeding 
against  the  bank  was  to  charge  the  bank, 
without  discrimination  between  domestic 
and  foreign-held  shares.  Prior  to  this 
Act  of  March  21,  1900,  there  was  no  law 
requiring  a  return  for  taxation  of  bank 
shares  held  by  owners  not  domiciled 
within  the  state,  either  by  such  holder 
or  by  the  bank  in  which  such  shares  were 
held.  For  this  reason  we  hold  in  the 
case  referred  to  that  this  act  imposed, 
for  the  years  prior  to  its  passage,  a  lia- 
bility upon  national  banks  for  taxes  upon 
shareholders  domiciled  outside  of  the 
state,  which  was  not  borne  by  other  in- 
corporated moneyed  institutions."  Citi- 
zens' Nat.  Bank  v.  Kentucky,  217  U.  S. 
443,    54    L.    Ed.   832.   30   S.    Ct.    532. 

"In  Covington  v.  First  Nat.  Bank,  198 
U.  S.  100,  111,  49  L.  Ed.  693.  25  S.  Ct.  562, 
this  court,  speaking  by  Mr.  Justice  Day, 
accepted  this  as  the  interpretation  of  the 
statutory  law  of  Kentucky  by  the  highest 
court  of  the  state,  saying:  'Following 
the  state  court  in  the  interpretation  of  its 
own  statutes,  it  may  be  said  that,  as  to 
shareholders  residing  in  Kentucky  and 
over  whom  the  state  has  jurisdiction,  the 
supreme  court  of  that  state  has  con- 
strued its  statutes  as  requiring  share- 
Iiolders  in  national  banks  for  the  years 
1893    to    1900,    inclusive,    to    return    their 


12  U   S   Enc- 


1185 


512 


TAXATION 


Vol.  XL 


nonresident  shareholders  in  a  national  bank  can  complain  of  the  supposed 
invalidity,  as  to  them,  of  the  retroactive  features  of  Act  Ky.  March  21,  190O 
(Acts  1900,  c.  23),  making  it  the  duty  of  certain  officers  of  the  bank  to  list 
its  shares  of  stock  for  taxation,  and  requiring  the  bank  to  pay  the  tax,  and  a 
penalty   for  delinquency.^^'' 

i.  Credits  Due  Foreign  Insurance  Companies. — Assessing  in  excess  of  ac- 
tual indebtedness  the  amounts  due  a  foreign  insurance  company  by  its  policy 
holders  in  the  state,  on  which  credits  have  been  extended  does  not  take  the 
property  of  the  company  without  due  process  of  law,  where  proper  opportunity 
was  afiforded  for  correction. •^•*^  A  foreign  insurance  company  can  not  claim 
to  have  been  denied  due  process  of  law  because  the  assessments  for  taxation 
of  the  credits  due  from  residents  of  the  state  were  grossly  excessive  or  the 
result  of  mere  guesswork,  where  opportunity  was  afforded  to  institute,  within 
a  reasonable  time  fixed  by  law,  a  suit  to  reduce  the  assessments. ^^^ 

j.  Allowance  for  Obligations  and  Debts.— The  law  can  tax  tangibles  by 
present  ownership  without  regard  to  obligations  that,  when  formed,  will  make 
some  of  them  change  hands.  The  14th  Amendment  does  not  prohibit  a  scheme 
of  taxation  which  does  not  make  allowance  for  all  obligations  and  debts. ^^'^ 

5.  CoxcivUSivENEss  OF  Assessment. — Construing  state  statutes  relating  to 
franchise  tax  assessments  as  rendering  an  assessment  once  made  final,  irrespec- 
tive of  any  secret  intentions  of  the  board  levying  it,  does  not  deny  the  due  proc- 


shares  for  taxation;  and  if  they  did  not 
make  the  return,  the  duty  was  required 
of  the  corporation.  In  this  view  of  the 
law  it  may  be  that,  as  to  local  share- 
holders, the  Act  of  March  21,  1900,  as 
held  by  the  supreme  court  of  Kentucky, 
created  no  new  right  of  taxation,  but 
gave  simply  a  new  remedy,  which,  by 
the  law,  is  operative  to  enforce  pre-ex- 
isting obligations.'  "  Citizens'  Nat.  Bank 
V.  Kentucky,  217  U.  S.  443,  54  L.  Ed.  832, 
30   S.    Ct.   532. 

"The  proceeding  enjoined  was  one  for 
the  purpose  of  fixing  liability  upon  the 
bank  without  discriminating  between 
resident  and  nonresident  shareholders. 
But  in  the  present  case  the  state  court 
has  not  imposed  liability  upon  the  bank 
for  taxes  or  penalties  upon  shareholders 
who  were  nonresidents,  but  has  applied  it 
as  affording  a  valid  remedy  for  the  col- 
lection of  taxes  and  penalties  upon  resi- 
dents who  had  not  made  return,  as  re- 
quired under  the  prior  law.  As  thus  ap- 
plied, the  bank  has  neither  been  deprived 
of  any  rights  nor  compelled  to  bear  any 
burden  in  conflict  with  §  5219,  Rev.  Stat.. 
upon  which  it  relies  for  protection." 
Citizens'  Nat.  Bank  v.  Kentucky,  217  U. 
S.    443,    54    L.    Ed.    832,    30    S.    Ct.    532. 

512-53b.  Citizens'  Nat.  Bank  v.  Ken- 
tucky, 217  U.  S.  443,  54  L.  Ed.  832,  30  S. 
Ct.   532. 

"If  it  be  assumed,  an  assumption  not 
sustained  by  any  decision  of  the  Ken- 
tucky court  of  appeals,  that  the  3d  section 
is  broad  enough  to  include  liability  for 
delinquent  taxes  claimed  from  both  resi- 
dent and  nonresident  stockholders,  none 
of  the  latter  class  are  here  complaining, 
and   such   an  objection   can   not   be   made 


b}'  one  unaffected  by  the  alleged  invalid 
feature.  Austin  :■.  Alderman,  7  Wall. 
094,  19  L.  Ed.  224;  Supervisors  v.  Stanley,. 
105  U.  S.  305,  26  L.  Ed.  1044;  The  Win- 
nebago, 205  U.  S.  354,  51  L.  Ed.  836.  27 
S.  Ct.  509."  Citizens'  Xat.  Bank  v.  Ken- 
tuckJ^  217  U.  S.  443,  54  L.  Ed.  832,  30  S. 
Ct.  532. 

512-54a.  Liverpool,  etc.,  Ins.  Co.  v. 
Board,  221  U.  S.  346,  55  L.  Ed.  762,  31  S. 
Ct.  550,  affirming  judgment  in  47  So.  415, 
122  La.  98;  Orient  Ins.  Co.  z'.  Board  of 
Assessors,  124  L.  A.  872,  50  So.  778.  See 
Central,  etc.,  R.  Co.  v.  Wright,  207  U.  S. 
127,   52   L.   Ed.   134,  28   S.   Ct.   47. 

It  was  competent  for  the  legislature  to- 
fix  a  reasonable  time  within  which  ac- 
tions for  reductions  should  be  instituted. 
When  this  was  done  and  the  company 
did  not  sue  in  time,  there  was  no  viola- 
tion of  the  federal  constitution  in  ad- 
judging the  rights  of  the  plaintiffs  ac- 
cordingly. Kentucky  Union  Co.  v.  Ken- 
lucky,  219  U.  S.  140,  157,  55  L.  Ed.  137, 
31  S.  Ct.  171;  Terry  v.  Anderson,  95  U.. 
S.  628,  24  L.  Ed.  365;  Orient  Ins.  Co.  v. 
Board.  221  U.  S.  358,  55  L.  Ed.  769,  31  S. 
Ct.  554. 

512-54b.  Orient  Ins.  Co.  r.  Board,  221 
U.  S.  358,  55  L.  Ed.  769.  31  S.  Ct.  554, 
citing  Brooklyn,  etc.,  R.  Co.  v.  New  York 
State  Board,  199  U.  S.  48,  52,  50  L.  Ed. 
79,  25  S.   Ct.  713. 

512-54C.  Paddell  z:  New  York.  211  U. 
S.  446,  53  L.  Ed.  275,  29  S.  Ct.  139,  citing 
Bell's  Gap  R.  Co.  f.  Pennsylvania,  134  U. 
S.  232,  237,  33  L.  Ed.  892,  10  S.  Ct.  533; 
Merchants',  etc.,  Bank  v.  Pennsylvania, 
167  U.  S.  461,  464,  42  L.  Ed.  236,  17  S.  Ct.. 
S29. 


1186 


Vol.  XI. 


TAXATION. 


512-520 


ess  of  law  guaranteed  by  Const.  U.  S.,  Amend.  14,  to  the  railway  company 
affected  by  such  assessment.^^^ 

6.  Time  and  Place. — The  owner  of  property  is  bound  to  take  notice  of  the 
time  and  place  provided  for  tax  proceedings.  He  knows  that  his  property  is 
subject  to  taxation. ^^^ 

C.  Liability  for  and  Payment  of  Taxes — 1.  Liability — d.  Between  Land- 
lord and  Tenant. — In  Virginia  the  general  rule  that  the  landlord  is  responsible 
for  the  taxes  has  "no  application  to  the  case  of  a  perpetual  leaseholder,  where 
the  tenant  is  in  effect  the  virtual  owner  of  the  property,  and  entitled  to  its 
use  forever.  *  *  "^^  For  the  purposes  of  taxation,  the  mere  legal  title  remain- 
ing in  the  landlord  will  be  disregarded."^^^ 

Covenant  of  Perpetual  Leaseholder  with  Municipal  Landlord  to  Pay 
Public  Taxes. — The  covenant  of  a  perpetual  leaseholder  with  his  municipal 
lessor  to  pay  the  public  taxes  which  shall  become  due  on  the  land  embraces 
municipal  taxes  whenever  they  can  thereafter  be  lawfully  assessed  on  the  land 
or  the  improvements  which  are  part  of  the  land,  although  when  the  lease  was 
made  the  municipality  had  no   power  of  taxation.^^" 

f.  Between  Vendor  and  Vendee. — See  post,  "Shares  of  National  Bank  Stock," 
VI,  C,  1,  k.  The  liability  for  a  tax  is  not  subject  to  the  rules  applicable  to  the 
vendor's  equity.  A  man  can  not  get  rid  of  his  liability  to  a  tax  by  buying  with- 
out notice.^^^ 

j.  Company  Operating  Railroad. — Under  the  federal  constitution,  a  state 
is  not  precluded  from  fixing  liability  for  the  payment  of  the  tax,  to  which  the 
franchise  is  subject,  upon  the  corporation  actually  exercising  the  franchise 
within  the  state,  and  in  control  of  the  railroad  property  and  its  earnings.     There 


512-55a.  Illinois  Cent.  R.  Co.  v.  Ken- 
tucky, 218  U.  S.  551,  54  L.  Ed.  1147,  31 
S.  Ct.  95. 

13-58a.  Time  and  place. — Ontario 
Land  Co.  V.  Yordy,  212  U.  S.  152,  53  L. 
Ed.    449,    29    S.    Ct.    278. 

520-91a.  Perry  Co.  v.  Norfolk,  220  U. 
S.  472,   55   L.   Ed.   548,   31    S.    Ct.   465. 

"The  court  of  appeals  [of  Virginia 
108  Va.  30]  *  *  *  adopted  that  part  of 
the  language  in  Wells  v.  Savannah,  87 
Ga.  397,  13  S.  E.  442,  affirmed  in  Wells 
V.  Savannah,  181  U.  S.  531,  45  L  Ed.  986, 
21  S.  Ct.  697,  vi^here,  in  speaking  of  the 
liability  of  one  who  had  a  perpetual  lease 
and  a  right  to  convert  it  at  will  into  a 
fee.  Judge  Bleckley  said:  'The  value  of 
property  consists  in  its  use,  and  he  who 
owns  the  use  forever,  though  it  be  on 
condition  subsequent,  is  the  true  owner 
of  the  property  for  the  time  being.' 
Crowe  V.  Wilson,  65  Md.  479,  57  Am. 
Rep.  343,  5  Atl.  427;  Brainard  v.  Col- 
chester, 31  Conn.  407."  Perry  Co.  v.  Nor- 
folk, 220  U.  S.  472,  55  L.  Ed.  548,  31  S. 
Ct.   465. 

520-91b.  Covenant  with  municipal 
lessor  to  pay  public  taxes. — Perry  Co.  v. 
Norfolk,  220  U.  S.  472,  55  L  Ed.  548,  31 
S.    Ct.   465. 

"In  support  of  their  claim  that  the  city 
as  lessor  could  not  tax  its  own  property, 
so  as  to  make  it  a  valid  public  tax,  pay- 
able by  the  lessee,  they  rely  on  the  gen- 


eral rule  that  taxes  are  assessed  to  the 
owner,  and  as  the  landlord  receives  the 
rent,  he  ought  to  bear  the  burdens  im- 
posed upon  the  property.  On  the  au- 
thority of  State  ex  rel.  Glenn  v.  Missis- 
sippi River  Bridge  Co.,  134  Mo.  321,  35  S. 
W.  592;  Thurston  v.  Mustin,  3  Cranch, 
C.  C.  335,  Fed.  Cas.  No.  14,013,  and  like 
cases,  they  insist  that  this  is  a  liability 
arising  out  of  the  relation  of  landlord 
and  tenant,  and  is  not  limited  to  short- 
term  leases,  but  applicable  to  those  for 
ninety-nine  years,  renewable  forever." 
Perry  Co.  v.  Norfolk,  220  U.  S.  472,  55 
L.   Ed.  548,  31   S.   Ct.  465. 

"Ordinarily,  it  would  be  a  useless 
thing  for  a  city  to  tax  its  own  property. 
But  this  can  be  done  under  Virginia 
practice,  and  is  not  a  vain  thing  if 
thereby  property  of  the  city,  subject  to 
taxation,  is  listed  in  its  name  as  holder 
of  the  legal  title,  so  as  to  fix  the  amount 
of  the  tax  on  the  property  which  the  ten- 
ant may  have  agreed  to  pay.  Cooley, 
Texn.  3d.  Ed.  263.  This  ruling  of  the 
Virginia  court  presents  no  federal  ques- 
tion, but  does  establish  that  the  tax  was 
not  illegal,  as  claimed,  but  was  based  on 
an  assessment  valid  under  the  laws  of  the 
state."  Perry  Co.  v.  Norfolk.  220  U.  S. 
472.   5.5   L.    Ed.   548,   .31    S.   Ct.   465. 

520-94a.  Citizens'  Nat.  Bank  r.  Ken- 
tucky. 217  U.  S.  443,  54  L.  Ed.  832,  30  S. 
Ct.  532,  following  Seattle  v.  Kelleher,  195 
U.    S.   351,   49   L.   Ed.   232,  25   S.   Ct.   44. 


1187 


•521-532  TAXATION.  Vol.  XI. 

is  no  constitutional  obligation  requiring  it  to  look  further  in  order  to  secure 
payment  of  the  tax  which  it  is  entitled  to  levy.^^^ 

k.  Shares  of  National  Bank  Stock. — The  shares  of  stock  of  a  national  bank 
pass  from  one  holder  to  another,  subject  to  burden  of  taxes;  and  if  not  re- 
turned by  either  the  shareholder  or  the  bank,  as  required  by  law,  the  liability 
remains  to  be  enforced  until  barred  by  limitations  of  time.  The  liability  of 
the  bank  is  that  of  the  shareholder,  and  its  reimbursement  must  come  from 
those  who  hold  the  shares  when  the  bank  liability  is  enforced.  The  liability 
of  the  purchaser  of  shares  for  tax  not  paid,  and  of  the  bank,  an  agent  for 
its  shareholders,  is  one  of  the  notorious  and  necessary  consequences  of  the 
long-sanctioned  right  of  the  states  to  compel  such  banks  to  return  their  shares 
for  taxation,  and  to  pay  the  assessment  thereon  if  the  shareholder  does  not.^^" 

D.  Lien  for  Taxes — 2.  Accrual  and  Duration. — The  lien  of  taxes  upon 
the  fee,  given  by  the  Tennessee  Act  of  January  10,  1903,  chap.  258,  §  32,  ap- 
plies only  when  the  fee  itself  may  be  taxed,  and  does  not  give  such  lien  for  a 
tax  upon  the  interest  of  a  lessee  where  the  fee  itself  is  exempt  from  taxation.^^^ 

4.  Enforcemi:nt. — See  post,  "General  Principles  and  Preliminary  Steps," 
VIII,  A. 

F.  Corrections  and  Additions — 4.  Boards  of  Revision  or  Equalization, 
ETC. — See  ante,   "General  Statement,"   VI,  A,  4,  a. 

Equalization  of  Value  of  Particular  Classes  of  Property  within  a 
County. — Ihe  Arizona  board  of  equalization,  in  exercising  its  power  under 
Rev.  St.  Ariz.  1901,  §  3880,  to  increase  or  diminish  the  valuation  of  property 
in  any  county  in  order  to  produce  a  just  relation  between  all  the  valuations  of 
property  in  the  territory,  is  not  bound  to  deal  with  the  valuation  of  each  county 
as  a  whole,  but  may  increase  or  diminish  the  valuations  of  particular  classes 
of   property   within  the   county."*^** 

H.  Injunction  against  Taxes — 1.  Jurisdiction — a.  General  Statement  of 
Rule. — See  note  48.  Federal  courts  throughout  the  country  have  frequently 
reviewed  the  action  of  taxing  bodies  when,  under  the  facts,  such  action  was 
in  effect  the  action  of  the  state,  and  therefore  reviewable  by  the  federal  courts 
by  virtue  of  the  provisions  of  the  14th  Amendment. ^^'^  When  a  rule  or  system 
of  valuation  is  adopted  by  those  whose  duty  it  is  to  make  the  assessment,  which 
is  designed  to  operate  unequally  and  to  violate  a  fundamental  principle  of  the 
constitution,  and  when  this  rule  is  applied  not  solely  to  one  individual,  but  to 
a  large  class  of  individuals  or  corporations,  equity  may  properly  interfere  to 
restrain  the  operation  of  this  unconstitutional  exercise  of  power.^'*''  Equity  has 
jurisdiction,  v/here  no  remedy  at  law  exists,  upon  payment  of  a  tax  fairly 
and  equitably  due,  to  restrain  the  collection  of  the  tax  assessed  upon  a  corpora- 
tion  at   a   different   rate   and   by   a   different   method    from   that   employed    for 

521-99a.    Illinois    Cent.    R.    Co.   v.   Ken-  an    officer    of  this   kind   from   performing 

tucky,   218   U.   S.   551,   54  L.   Ed.   1147,  31  his    statutory    duty    for    fear    he    should 

S.  Ct.  95,  citing  Carstairs  v.  Cochran,  193  perform  it  wrongly.     The  earliest  moment 

U.  S.  10,  16,  48  L.   Ed.  596,  24  S.  Ct.  318,  for  equity  to  interfere  is  when  an  assess- 

and    National    Bank  t>.    Commonwealth,   9  ment    has    been    made.      Probably   it    will 

Wall.  353,  19  L.  Ed.  701.  be    made    with    caution,    after    this    case." 

521-99b.     Citizens'    Nat.    Bank    v.    Ken-  First    Nat.    Bank    v.    Albright,    208    U.    S. 

tucky,  217  U.  S.  443,  54  L.   Ed.  832,  30  S.  ^-^S-  -'^  L-   Hd.  614,  28  S.   Ct.  349. 
Ct    532  532-54a.     Raymond    v.     Chicago     Union 

525-23a.     Jetton    v.    University,    208    U.  l'^^\-  Jo-.  207  U.   S    20,  52  L.   Ed.  78,  28 

S.   489,   52   L.   Ed.   584,  28   S.   Ct.  375.  S.    Ct.    7,    following   Chicago    etc.,    R.    Co. 

^ '  ^     ,  / »    .  „   N  .r^  <-'■   Chicago,   166   U.    S.   226,   41    L.   Ed.   979, 

529-42a.     Judgment    (Ariz.    1906),    84    P.  ^^   g    q^  gg^ 

511,    affirmetl      Copper,    etc.     Min.    Co.   v.  532-54b.     Raymond    v.    Chicago    Union 

Territorial    Board,    206   U.    S.    474,   51    L.  Tract.   Co..  207  U.  S.  20,  52   L.   Ed.  78,  28 

Kd.  1143,  27   S.   Ct.  695.  g    q^    ^^  approving  Cummings  v.  National 

530-48.     "It    is    not   for   a   court   to   stop  Bank,   101   U.   S.   153,   25   L.   Ed.   903. 

1188 


Vol.  XL 


TAXATION. 


532-536 


other  corporations  of  the  same  class  and   for  the  same  year,  which  results  in 
a  most  enormous  and  material  discrimination  against  the  complainant  corpora- 

b.  Bxhanstion  of  Other  Remedies. — See  note  58.  The  existence  of  an  ade- 
quate remedy  at  law  by  an  action  to  recover  back  illegal  taxes,  which  will  de- 
feat injunctive  relief,  is  negatived  by  allegations  in  a  bill  to  restrain  illegal 
taxation  that,  if  complainant  sues  to  recover  back  the  taxes,  separate  suits 
/nust  be  brought  against  the  several  taxing  bodies  receiving  a  share  of  the  tax ; 
that  the  proportion  of  the  tax  which  goes  to  the  state  can  not  be  recovered 
by  any  legal  proceeding;  that  whatever  repayment  can  be  compelled  from  the 
other  taxing  bodies  will  not  cover  the  cost,  including  commissions  deducted 
for  the  collection  of  the  tax;  that  payment  of  such  tax  will  render  complain- 
ant insolvent ;  and  that  a  levy  on  its  property  will  interfere  with  the  street 
car  system  operated  by  it,  to  the  injury  of  the  public.^'''' 

f.    Necessity  for  Payment  of  Taxes  Admittedly  Due. — See  note  66. 

4.  Res  Judicata. — See  ante,  "Application  of  Doctrine  of  Res  Judicata," 
IV,  A,  5, 

VII.    Collection  of  Taxes. 

A.    General  Principles — 2.    Due  Process  of  Law. — A  summary  procedure 


532-54C.  Judgment,  Chicago  Union 
Tract.  Co.  v.  State  Board  of  Equalization 
(C.  C),  114  F.  557,  affirmed  in  Raymond 
V.  Chicago  Union  Tract.  Co.,  207  U.  S. 
20,  53  L.  Ed.  78,  28  S.  Ct.  7;  Raymond  v. 
Chicago  Edison  Co.,  207  U.  S.  42,  52  L. 
Ed.  89,  28  S.  Ct.  14,  citing  Reagan  v. 
Farmers'  Loan,  etc.,  Co.,  lo4  U.  S.  362, 
390,  38  L.  Ed.  1014,  14  S.  Ct.  1014;  Backus 
V.  Fort  St.  Union  Depot  Co.,  169  U.  S. 
557,  565,  42  L-  Ed.  853,  18  S.  Ct.  445; 
Fargo  V.  Hart,  193  U.  S.  490,  502,  48  L. 
Ed.    761,   24   S.    Ct.   498. 

534-58.  If  there  be  a  complete  and  ade- 
quate remedy  at  law  assuming  the  tax  to 
be  void,  equity  will  not  restrain,  by  injunc- 
tion, its  collection,  unless  there  be  some 
other  ground  for  equitable  interposition. 
Raymond  v.  Chicago  Union  Tract.  Co., 
£07  U.  S.  20,  52  L.  Ed.  78,  28  S.  Ct.  7, 
citing  Shelton  v.  Piatt,  139  U.  S.  591,  35 
L.  Ed.  273,  11  S.  Ct.  646;  Allen  v.  Pull- 
man's Palace  Car  Co.,  139  U.  S.  658,  35 
L.  Ed.  303,  11  S.  Ct.  682;  and  Pacific  Exp. 
Co.  V.  Seibert,  142  U.  S.  339,  35  L.  Ed. 
1035,  12  S.  Ct.  250. 

In  Shehon  v.  Piatt,  139  U.  S.  591,  35 
L.  Ed.  273,  11  S.  Ct.  646,  and  Allen  v. 
Pullman's  Palace  Car  Co.,  139  U.  S.  658, 
35  L.  Ed.  303,  11  S.  Ct.  682,  "it  was  rec- 
ognized that  no  ground  appeared  f^r 
the  interposition  of  a  court  of  equity,  be- 
cause of  the  existence  of  a  statute  in  the 
state  of  Tennessee  providing  for  paying 
the  amount  of  the  alleged  illegal  tax  to 
the  officer  holding  the  warrant,  and 
granting  to  the  taxpayer  a  right  to  com- 
mence an  action  to  recover  back  the  tax 
thus  paid,  the  statute  providing  that  the 
officer  should  pay  the  amount  received 
into  the  state  treasur3\  where  it  was  to 
remain  until  the  question  was  decided, 
and,    if    it    was    decided    in    favor    of    the 


taxpayer,  provision  was  made  for  the  re- 
payment of  the  amount  by  the  state.  The 
other  averments,  beside  that  of  the  ille- 
gality of  the  tax,  made  in  these  two  cases, 
were  held  not  to  constitute  a  ground  for 
the  interposition  of  a  court  of  equity  by 
restraining  the  collection  of  the  tax." 
Raymond  v.  Chicago  Union  Tract.  Co., 
207   U.    S.   20,   52   L.    Ed.   78,  28   S.   Ct.   7. 

In  Pacific  Exp.  Co.  v.  Seibert,  142  U. 
S.  339,  35  L.  Ed.  1035,  12  S.  Ct.  250,  the 
court  held  that  there  was  no  ground  to 
warrant  the  interposition  of  a  court  of 
equity.  The  case  was  decided  upon  the 
ground  that  the  averment  of  illegality  of 
the  tax  was  not  sustained.  There  is  no 
statute  of  a  similar  kind  in  Illinois  which 
has  been  called  to  our  attention,  but 
some  of  the  cases  in  that  state  hold  that 
a  suit  may  be  maintained  against  the  col- 
lector when  the  money  was  paid  under 
prote'st."  Raymond  v.  Chicago  Union 
Tract.  Co.,  207  U.  S.  20,  52  L.  Ed.  78,  28 
S.   Ct.  7. 

535-59a.  Judgment,  Chicago  Union 
Tract.  Co.  v.  State  Board  of  Equalization 
(C.  C),  114  F.  557.  affirmed  in  Raymond 
V.  Chicago  Union  Tract.  Co.,  207  U.  S. 
20,  52  L.  Ed.  78,  28  S.  Ct.  7;  Raymond  v. 
Chicago  Edison  Co.,  207  U.  S.  42,  52  L. 
Ed.    89,    28    S.    Ct.    14. 

536-66.  Payment  of  taxes  admittedly 
due. — "Where  there  is  jurisdiction  to  tax 
at  all,  equity  will  not  grant  an  injunc- 
tion to  restrain  the  collection,  even  of 
an  illegal  tax,  without  the  payment  on  the 
part  of  the  taxpayer  of  the  amoimt  of  a 
tax  fairly  and  equitably  due.  People's 
Nat.  Bank  v.  Marye,  191  U.  S.  272,  48  L. 
Ed.  180,  24  S.  Ct.  68."  Raymond  v.  Chi- 
cago Union  Tract.  Co.,  207  U.  S.  20,  52 
L.    Ed.   78.   28    S.    Ct.   7. 


1  189 


541-547 


TAXATION. 


Vol.  XI. 


has   been   sustained   where  the  person   taxed  has  been   allowed  opportunity   to 
be  heard  in  opposition  to  the  enforcement  of  taxes  and  penalties  against  him.^^* 

Enforcement  against  Company  Operating  Railroad. — The  enforcement 
of  a  railway  franchise  tax  by  a  judgment  in  personam  against  a  railway  com- 
pany which,  while  not  the  owner  of  the  franchise,  is  operating  the  road  under 
an  arrangement  with  the  purchaser  at  a  judicial  sale,  and  is  in  possession  and 
full  control  of  the  railroad  property  and  its  earnings,  does  not  deny  the  due 
process  of  law  guaranteed  by  the  fourteenth  amendment  to  the  federal  con- , 
stitution.^^^ 

D.  Collection  by  Suit  or  Motion — 2.  Jurisdiction — a.  At  Law. — When 
a  statute  says  a  person  shall  pay  a  given  tax  it  obviously  imposes  upon  that 
person  the  duty  to  pay,  and  this  may  be  enforced  through  the  ordinary  means 
adapted  to  the  recovery  of  a  definite  sum  due,  unless  that  course  is  clearly 
prohibitedJ^ 

F.  Forfeiture  or  Purchase  by  State  for  Taxes. — See  note  25.  Due 
process  of  law  in  forfeiting  lands  to  the  state  for  failure  to  list  and  pay  taxes 
for  certain  specified  years  is  afiforded  by  the  Kentucky  Act  March  15,  1906, 
c.  22,  art.  3,  under  which  a  judicial  proceeding  is  provided  by  which  the  owner 
of  the  title  may  have  the  taxes  assessed,  and,  upon  payment  thereof,  the  for- 
feiture avoided,  and  such  forfeiture  is  declared  only  after  a  judicial  proceeding 
in  which  the  owner  of  the  title  is  summoned  and  heard. ^^^^ 

Effect  of  Compact  between  Virginia  and  Kentucky.— Requiring  upon 
notice  and  hearing  the  listing  of  land  titles  for  taxation  for  certain  specified 
years,  or,  in  default  thereof,  forfeiting  such  title  to  the  state,  as  is  done  by 
the  Kentucky  Act  of  March  15,  1906,  art.  3,  does  not,  as  to  titles  under  grants 
from  the  state  of  Virginia,  violate  the  provisions  of  the  compact  of  1789,  be- 
tween the  states  of  Virginia  and  Kentucky,  for  the  security  of  private  rights 
existing  at  the  time  of  the  separation  of  the  states,  to  be  determined  by  the 
then-existing  laws  of  Virginia. ^^"^ 


541-88a.  Summary  procedure. — Ken- 
tucky Union  Co.  v.  Kentucky,  219  U.  S. 
140,   55    L.   Ed.   137,   31   S.    Ct.  "l71. 

"Summary  proceedings  adapted  to  the 
circumstances,  and  permitting  the  tax- 
payer to  appear  and  be  heard  at  some 
stage  of  the  proceedings,  have  been  held 
to  satisfy  the  requirements  of  due  process 
of  law.  Security  Trust,  etc.,  Co.  v.  Lex- 
ington, 203  U.  S.  323,  51  L.  Ed.  204,  27 
S.  Ct.  87."  Kentucky  Union  Co.  v.  Ken- 
tucky, 219  U.  S.  140,  55  L.  Ed.  137,  31  S. 
Ct.   171. 

In  McMillen  v.  Anderson,  95  U.  S.  37, 
41,  24  L.  Ed.  335,  the  federal  supreme 
court  said:  "The  mode  of  assessing 
taxes  in  the  states  by  the  federal  govern- 
ment, and  by  all  governments,  is  neces- 
sarily summary,  that  it  may  be  speedy 
and  effectual.  By  summary  is  not  meant 
arbitrary,  or  unequal,  or  illegal.  It  must, 
under  our  constitution,  lie  law^full)'  done." 
Kentucky  Union  Co.  v.  Kentucky,  219 
U.  S.  140,  55  L.  Ed.  137.  31  S.  Ct.  171. 
See,  in  this  connection,  Leigh  v.  Green, 
193  U.  S.  79,  48  L.  Ed.  623,  24  S.  Ct.  390; 
Ballard  v.  Hunter,  204  U.  S.  241,  51  L. 
Ed.   461.    27   S.    Ct.   261. 

541-88b.  Illinois  Cent.  R.  Co.  v.  Ken- 
tucky,   21 S    U.    S.    551,    54    L.    Ed.    1147,    31 

S.  Ct.  i;.-). 


543-7a.  Means  of  recovery. — United 
States  V.  Chamberlin,  219  U.  S.  250,  263, 
55    L.    Ed.    204,    31    S.    Ct.    155. 

547-25.  "The  West  Virginia  system  was 
before  this  court  in  King  v.  Mullins,  I'i  i 
U.  S.  404,  43  L.  Ed.  214,  18  S.  Ct.  925. 
In  that  case  due  process  of  law,  in  con- 
nection v^'ith  the  taxing  system  of  the 
state,  was  given  full  consideration;  and 
the  constitution  of  West  Virginia,  when 
read  in  connection  with  the  statutes  of 
the  state,  was  held  to  afford  due  process 
of  law."  Kentucky  Union  Co.  z'.  Ken- 
tucky, 219  U.  S.  140,  55  L.  Ed.  137,  31  S. 
Ct.    171. 

"The  case  of  King  v.  Mullins,  171  U. 
S.  404,  43  L.  Ed.  214,  18  S.  Ct.  925,  was 
followed  and  approved  in  this  court  in 
King  V.  West  Virginia,  216  U.  S.  92,  54 
L.  Ed.  396,  30  S.  Ct.  225,  and  in  Fay  v. 
Crozer,  217  U.  S.  455,  54  L.  Ed.  837,  30 
S.  Ct.  568."  Kentucky  Union  Co.  v.  Ken- 
tucky, 219  U.  S.  140,  55  L.  Ed.  137,  31  S. 
Ct.   171. 

547-35a.  Kentucky  Union  Co.  v.  Ken- 
Inckv,  219  U.  S.  140,  55  L.  Ed.  137,  31  S. 
Ct.   171. 

547-25b.  Effect  of  compact  between 
Virginia  and  Kentucky. — Kentucky  Union 
Co.  7'.  Kentucky,  219  U.  S.  140,  55  L.  Ed. 
i;!7.    31    S.    Ct.    171. 


1190 


Vol.  XI. 


TAX  ATI  OX 


547 


Forfeiture  for  Failure  to  List  Lands  and  Pay  Taxes  for  Certain  Speci- 
fied Years. — Landowners  who  did  not  acquire  their  title  until  after  the 
delinquencies  had  occurred  can  not  claim  to  have  been  denied  the  equal  pro- 
tection of  the  laws  by  the  application  to  them  of  the  provisions  of  the  Kentucky 
Act  of  March  15,  1906,  art.  3,  for  the  forfeiture  of  such  lands  to  the  state, 
because  of  the  failure  to  the  owners  to  list  lands  for  taxation  and  pay  the 
taxes  thereon  for  certain  specified  years. 25<= 

Conditions  Which  Are  Applicable  Existing  in  Only  Part  of  Counties  of 
State. — The  provisions  for  the  forfeiture  of  land  titles  to  the  state  for  failure 
to  list  and  pay  taxes  thereon  for  certain  specified  years,  made  by  the  Kentucky 
Act  of  March  15,  1906,  art.  3,  do  not  deny  the  equal  protection  of  the  laws  be- 
cause, in  the  application  of  such  statute,  it  can  only  meet  conditions  such  as  are 
embraced  within  the  law  in  a  part  of  the  counties  of  the  state.^^'^ 

Ex  Post  Facto  Laws. — The  objection  that  the  retrospective  features  of  the 
Kentucky  Act  of  March  15,  1906,  art.  3,  forfeiting  land  titles  for  failure  to 
list  and  pay  taxes,  make  the  law  an  ex  post  facto  one,  is  not  valid,  where  such 
legislation,  as  construed  by  the  highest  court  of  the  state,  imposes  no  retrospec- 
tive penalties  or  punishment  of  a  criminal  nature.-^'' 

Enurement  of  Forfeiture  to  Persons  in  Possession. — There  is  no  denial 
of  due  process  of  law  in  the  provisions  of  the  Kentucky  Act  of  March  16,  1906, 
c.  22,  art.  3,  under  which  the  forfeiture  of  land  titles  to  the  state,  as  the  result  of 
proper  proceedings  and  after  due  notice  to  the  owner  of  the  title,  who  is  in  de- 
fault for  payment  of  taxes,  is  to  enure  to  the  benefit  of  adverse  claimants  occupy- 
ing and  paying  taxes  upon  the  land,  and  not  in  default. -"'^ 

VIII.  Sale  for  Taxes. 
A.    General  Principles  and  Preliminary  Steps — >4.  Nature  of  Proceed- 


547-25C.  Forfeiture  for  failure  to  list 
lands  and  pay  taxes  for  certain  specified 
years. — Kentucky  Union  Co.  v.  Ken- 
tucky, 219  U.  S.  140,  55  L.  Ed.  137,  31 
S.   Ct.   171. 

547-25d.  Conditions  which  are  ap- 
plicable existing  in  only  part  of  counties 
of  state. — Kentucky  Union  Co.  v.  Ken- 
tucky, 219  U.  S.  140,  55  L.  Ed.  137,  31  S. 
Ct.   171. 

547-25e.  Ex  post  facto  laws. — Kentucky 
Union  Co.  v.  Kentucky,  219  U.  S.  140,  55 
L.    Ed.    137,    31    S.    Ct.    171. 

547-27a.  Kentucky  Union  Co.  z'.  Ken- 
tucky, 219  U.  S.  140,  55  L.  Ed.  137,  31  S. 
Ct.  171,  affirming  judgment  108  S.  W. 
931,  128  Ky.  610,  111  S.  W.  362,  33  Ky.  L. 
Rep.  875. 

"It  is  not  a  valid  objection  to  a  law  of 
this  character  that  the  title  forfeited  to 
the  state  as  the  result  of  proper  pro- 
ceedings and  due  notice  to  the  owner  of 
the  title,  who  is  in  default  for  the  pay- 
ment of  taxes,  may  be  transferred  to 
others  occupying  and  paying  taxes  upon 
the  lands,  and  not  in  default.  That  the 
similar  feature  of  the  West  Virginia  con- 
stitution did  not  invalidate  the  law  where 
opportunity  was  given  for  a  hearing  was 
held  in  King  v.  West  Virginia  [216  U.  S. 
<)2,  54  L.  Ed.  396.  30  S.  Ct.  225]  *  *  *, 
to  have  been  concluded  by  King  v.  Mul- 
lins,  171  U.  S.  404,  43  L.  Ed.  214,  18  S. 
Ct.    925,    and    the    same    doctrine    was    ap- 


plied in  Fay  v.  Crozer,  217  U.  S.  455,  54 
L.  Ed.  837,  30  S.  Ct.  568.  This  view  may 
have  the  effect  of  subjecting  the  owner 
of  the  title  which  is  forfeited  to  proceed- 
ings which  devest  his  title,  notwithstand- 
ing another  claimant  may  have  paid 
taxes  upon  a  separate  title  in  the  same 
land;  but  this  consideration  does  not  ef- 
fect the  validity  of  the  law.  The  state 
may,  so  far  as  the  federal  constitution  is 
concerned,  tax  each  claimant  of  title 
upon  the  same  premises,  and  may,  by  a 
proper  procedure,  devest  the  owner  of 
one  in  default."  Kentucky  Union  Co.  v. 
Kentucky,  219  U.  S.  140,  55  L.  Ed.  137, 
31   S.   Ct.   171. 

Cutting  down  period  of  limitation. — 
The  forfeiture  to  the  state  for  the  benefit 
of  actual  occupants  in  adverse  posses- 
sion, which  is  provided  for  by  Act  Ky. 
March  ]5,  1906,  c.  22,  art.  3,  in  case  of  the 
failure  of  the  owner  or  claimant  to  list 
the  lands  and  pay  taxes  thereon  for  cer- 
tain specified  years,  is  not  lacking  in  due 
process  of  law  because  the  effect  is  to 
cut  down  the  period  of  limitation  in 
which  actions  may  be  brought  by  the 
holders  of  the  title  to  recover  against  ad- 
verse claimants.  Kentucky  Union  Co.  7'. 
Kentucky,  219  U.  S.  140,  55  E.  Ed.  137, 
31  S.  Ct.  171,  aflirming  judgments  (1907), 
106  S.  W.  260,  127  Ky.  667  and  Cl908), 
108  S.  W.  931,  128  Ky.  610,  111  S.  W. 
362,   33    Ky.    Law    Rep.    S57. 


1191 


551-554 


TAXATION. 


Vol.  XL 


INGS. — Tax  foreclosure  proceedings  for  the  collection  of  taxes  on  real  estate  are 
proceedings  in  rem.^^^ 

6.  Filing  Ce^rtiFicates  of  Delinquency. — The  omission  of  the  county  treas- 
urer to  file  a  certificate  of  delinquency  with  the  clerk  of  the  court  in  proceedings 
to  foreclose  the  lien  of  the  county  for  delinquent  taxes,  as  required  by  a  state 
statute,  is  not  fatal  to  the  validity  of  the  proceedings,  where  jurisdiction  has  been 
obtained  by  the  issue  of  the  certificate  and  publication  of  the  summons,  as  the 
filing  of  such  certificate  is  directory  and  not  mandatory.'^ ^^ 

7.  Notice  and  Summons. — See  post,  "Necessity  and  Purpose,"  VIII,  B-C,  1. 
Summons. — The  judgment  in  proceedings  under  a  state  statute  to  foreclose 

the  lien  of  a  county  for  delinquent  taxes  is  not  rendered  invalid  by  the  fact  that 
the  summons  requires  answer  within  sixty  days  after  the  first  publication,  instead 
of  within  sixty  days  after  the  "date  of"  the  first  publication.'^ ^'^ 
Notice  by  Publication. — See  post,  "Necessity  and  Purpose,"  VIII,  B-C,  1. 

8.  Petition  or  Complaint. — Filing  Complaint. — The  filing  of  a  complaint 
in  proceedings  to  foreclose  the  lien  of  a  county  for  delinquent  taxes  before  publi- 
cation of  summons  is  not  jurisdictional,  notwithstanding  the  requirement  of  a 
statute  of  the  state  that  publication  of  summons  shall  not  be  had  until  after  the 
filing  of  the  complaint.'^ ^° 

Description  of  Property. — A  judicial  sale  under  the  Kentucky  Act  of  March 
15,  1906,  c.  22,  art.  3,  of  lands  forfeited  to  the  state  for  failure  to  list  and  pay 
taxes  for  certain  specified  years,  is  not  lacking  in  due  process  of  law  because, 
under  such  statute,  it  is  not  necessary  that  the  petition  for  forfeiture  shall  point 
out  and  describe  the  parts  of  the  tract  held  by  adverse  claimants  to  whose  benefit 
the  forfeiture  will  accrue,  where  it  is  open  to  the  defendant  to  show  what  parts 
of  the  tract  are  subject  to  sale,  if  less  than  the  whole  is  to  be  sold.'^^" 


551-50a.  "In  Washington,  proceedings 
for  the  collection  of  taxes  upon  real 
property  are  in  rem.  Spokane  Falls  &  N. 
R.  Co.  V.  Abitz,  38  Wash.  8,  80  Pac.  193; 
Allen  V.  Peterson,  38  Wash.  599,  80  Pac. 
849;  Rowland  v.  Eskeland,  40  Wash.  253, 
82  Pac.  599;  Shipley  v.  Gaffner,  48  Wash. 
169-171,  93  Pac.  211.  In  this  last  case  it 
was  said  by  the  court:  'We  have  re- 
peatedly held  that  these  tax  foreclosure 
proceedings  are  in  rem,  and  not  against 
the  person  of  the  owner,  and  that  own- 
ers are  bound  to  take  notice  of  the  prop- 
erty they  own,  and  pay  the  taxes  thereon, 
and  defend  against  foreclosure  for  de- 
linquent taxes,  even  though  the  property 
is  assessed  to  unknown  persons  or  to 
other  persons.' "  Ontario  Land  Co.  v. 
Yordy,  212  U.  S.  152,  53  L.  Ed.  449,  29 
S.   Ct.  278. 

554-73a.  Ontario  Land  Co.  v.  Wilfong, 
223  U.  S.  543,  56  L.  Ed.  544,  32  S.  Ct. 
328,  so  holding  under  the  statute  of  the 
state  of  Washington. 

In  Ontario  Land  Co.  v.  Yordy,  212  U. 
S.  152,  53  L.  Ed.  449,  29  S.  Ct.  152,  it  was 
contended  that  the  proceedings  were 
void  because  of  the  failure  to  file  the  cer- 
tificate of  delinquency.  The  supreme 
court  of  the  state  declined  to  consider 
the  contention,  holding  that  it  v.'as  not 
open,  as  the  land  company  had  not  ten- 
dered the  delinquent  taxes,  as  required 
by  the  laws  of  the  state.  In  this  court  it 
was  not  explicitly  urged  except  in  a  pe- 
tition for  rehearing.     The   rehearing  was 


not  granted.  Ontario  Land  Co.  v.  Wil- 
fong, 223  U.  S.  543,  56  L.  Ed.  544,  32  S. 
Ct.   328. 

554-73b.  Ontario  Land  Co.  v.  Wilfong, 
223  U.  S.  543,  56  L.  Ed.  544,  32  S.  Ct.  328. 
So  held  under  statute  of  Washington. 

554-73C.  Filing  complaint. — Ontario 
Land  Co.  v.  Wilfong,  223  U.  S.  543.  56 
L.  Ed.  544,  32  S.  Ct.  328.  So  held  under 
Ball    Wash.    Code,    §    4878. 

Under  the  statute  of  Mich.  Laws  1893, 
No.  206,  the  owner  of  properly  whose 
taxes  duly  assessed,  have  remained  un- 
paid for  more  than  a  year  must  be  held 
to  Ihe  knowledge  that  the  proceedings 
for  sale  are  liable  to  be  begun  as  soon 
as  practicable  after  the  1st  day  of  June, 
and  that  the  law  contemplates  that  they 
will  be  ended  before  December  1,  when 
the  sales  will  be  made  by  the  county 
treasurer.  The  proceedings  are  inscribed 
on  the  public  records  and  otherwise  made 
notorious.  If  he  exercises  due  diligence, 
he  can  not  fail  to  learn  of  their  pendency 
and  that  full  opportunity  to  defend  is 
afforded  to  him.  This  satisfies  the  de- 
mands of  due  process  of  law.  Longyear 
V.  Toolan,  209  U.  S.  414,  52  L.  Ed.  859, 
28   S.    Ct.   506. 

554-73d.  Kentucky  Union  Co.  v.  Ken- 
tuckv,  219  U.  S.  140,  55  L.  Ed.  137,  31 
S.  Ct.  171,  affirming  judgments  (1907), 
106  S.  W.  260,  127  Kv.  667.  and  (1908), 
108  S.  W.  931,  128  Ky.  610.  Ill  S.  W.  362, 
33   Kv.  Law  Rep.  857. 


1192 


A'ol.  XI. 


TAXATION. 


554-564 


9.  AppIvICATiox  for  Judgment. — The  judgment  in  proceedings  to  foreclose 
the  lien  of  a  county  for  delinquent  taxes  under  a  state  statute  is  not  void  for  fail- 
ure to  file  the  application  for  judgment  until  the  day  of  its  entry.'^^*' 

B-C.  Advertisement  and  Notice — 1.  Necessity  and  Purpose. — Pro- 
ceeding in  Rem  and  Due  Process. — See  note  77. 

Notice  by  Publication. — The  notice  by  publication  of  the  pendency  of  pro- 
ceedings to  sell  land  to  satisfy  a  lien  for  unpaid  taxes,  prescribed  by  Laws  Mich. 
1893,  p.  354,  No.  206,  satisfies  the  requirement  of  due  process  of  law  made  by 
Const.  U.  S.,  Amend.  14,  where  the  delinquent  taxpayer,  who  has  had  an  oppor- 
tunity to  be  heard  upon  the  assessment,  can  not  fail,  if  he  exercises  due  vigilance, 
to  learn  of  the  pendency  of  the  proceedings,  and  that  full  opportunity  to  defend 
is  afiforded  to  him."'^'' 

I.  Tax  Deeds  or  Certificate  and  Title  Passing  Thereunder — 6.  De- 
scription OF  Property. — Foreclosure  of  the  lien  of  a  county  for  delinquent 
taxes,  resulting  in  a  tax  sale  and  deed  under  which  property  marked  "reserved" 
on  an  official  plat  is  described  as  specified  numbered  blocks,  not  designated  on 
the  plat,  but  which  would  have  constituted  such  blocks  if  the  tract  reserved  had 
been  divided  into  blocks  and  numbered,  does  not  deprive  the  owner  of  his  prop- 
erty without  due  process  of  law.  where  he  not  only  had  notice  from  the  record 
that  the  designated  blocks  were  listed  for  taxation,  and  that  they  would  occupy 
the  place  marked  on  the  plat  as  reserved,  but  also  had  notice  that  the  tract  marked 
"reserved"  was  not  otherwise  listed  for  taxation,  and  had  actual  knowledge  that 
the  authorities  were  attempting  to  tax  the  reserved  tract  under  the  description 
of  the  designated  blocks. ^•^'^ 


554-73e.     Application    for    judgment. — 

Ontario  Land  Co.  v.  Wilfong,  223  U.  S. 
543,   56   L.    Ed.   544,   32  S.   Ct.   328. 

555-77.  Longyear  v.  Toolan,  209  U.  S. 
414,  52  L.  Ed.  859.  28  S.  Ct.  506,  reaffirm- 
ing Leigh  v.  Green,  193  U.  S.  79.  43  L. 
Ed.    623,    24    S.    Ct.    390. 

555-77a.  Notice  by  publication. — Judg- 
ment, Toolan  v.  Longyear  (1906),  107  N. 
W.  699,  144  Mich.  55,  affirmed.  Long- 
year  V.  Toolan,  209  U.  S.  414,  52  L.  Ed. 
859,  28  S.  Ct.  506. 

"The  case  at  bar  can  not  be  distin- 
guished from  Winona,  etc.,  Land  Co.  v. 
Minnesota,  159  U.  S.  526,  40  L.  Ed.  247, 
16  S.  Ct.  83.  *  *  *  There  a  statute  similar 
to  the  one  now  before  us  was  held  to 
afford  due  process  of  law.  The  only  dis- 
tinction suggested  is  that  the  Minnesota 
statute  fixed  more  definitely  than  the 
Michigan  statute  the  time  of  filing  the 
petition,  of  making  the  order  for  hear- 
ing, and  of  the  hearing  itself.  But  those 
times  are  fixed  with  sufficient  certainty 
here."  Longyear  v.  Toolan,  209  U.  S. 
414,   52   L.   Ed.   859,   28   S.   Ct.   506. 

"In  Winona,  etc.,  Land  Co.  v.  Minne- 
sota, 159  U.  S.  526,  40  L.  Ed.  247,  16  S. 
Ct.  83,  it  was  said,  p.  537,  that  the  four- 
teenth amendment  was  not  violated  'if 
the  owner  has  an  opportunity  to  ques- 
tion the  validity  or  the  amount  of  it 
either  before  that  amount  is  determined 
or  in  subsequent  proceedings  for  its  col- 
lection.' If  it  be  assumed  that  the  de- 
linquent taxpayer,  who  has  already  had 
an  opportunity  to  be  heard  upon  the  as- 
sessment of  the  tax  upon  his  property,  is 


entitled  to  further  notice  of  the  pendency 
of  proceedings  to  sell  the  land  in  satis- 
faction of  the  tax  lien,  then  the  statute 
before  us  requires  a  sufficient  notice.  It 
is  no  objection  that  the  notice  was  only 
by  publication."  Longyear  v.  Toolan, 
209  U.   S.  414,  52  L.   Ed.  859,  28   S.  Ct.  506. 

Notice  published  in  Sunday  paper  only. 
— See  post,  "As  Prima  Facie  Evidence  of 
Title  under  Statutes,"  VIII.  I,  9,  c. 

564-33a.  Ontario  Land  Co.  v.  Wilfong, 
223  U.  S.  543,  56  L.  Ed.  544,  32  S.  Ct. 
328. 

In  Ontario  Land  Co.  v.  Yordy.  212  U. 
S.  152,  53  L.  Ed.  449.  29  S.  Ct.  278,  the 
proceedings  were  those  involved  in  this, 
and  it  was  so  held  that  the  company  was 
charged  with  notice  of  the  platting  and 
the  condition  shown  by  the  plat.  It  had 
notice  from  the  records  of  the  listing 
and  assessment  for  taxation  of  these 
blocks,  and  that  they  would  occupy  the 
place  marked  upon  the  official  plat  as 
"reserved."  The  company  also  "had  no- 
tice," it  was  said,  "that  the  tract  marked, 
'reserved'  was  not  otherwise  listed  or  as- 
sessed for  taxation,"  and  that  the  blocks 
"were  used  by  the  authorities  for  de- 
scribing the  'reserved'  tract."  The  pre- 
sumption of  knowledge  thus  arising  was 
fortified,  it  was  said,  "by  actual  knowl- 
edge 'that  the  authorities  were  attempting 
to  assess  and  tax  this  "reserved"  tract 
under  the  description  of  blocks  352.  etc.'" 
Both  were  grounds  of  decision.  In  other 
words,  the  decision  was  not  based  alone 
on  actual  knowledge  of  what  property 
was   intended   to  be   taxed,   but   upon   the 


1193 


567-577 


TAXATION. 


Vol.  XI. 


9.  Ei^i^iCACY  o?  Tax  Deed  to  Pass  Title — c.  As  Prima  Facie  Evidence  of 
Title  under  Statutes. — Presumption  of  Validity  of  Tax  Deed. — A  tax  deed 

is  not  void  because  notice  of  sale  was  not  posted  nor  otherwise  given,  as,  under 
the  laws  of  Washington,  a  tax  deed  is  prima  facie  evidence  not  only  of  the  va- 
lidity of  the  deed  and  order  under  which  the  sale  was  made,  but  also  of  the  regu- 
larity of  the  prior  proceedings.'*^'^ 

J.  Relief  against  Invalid  Sale  and  Deed — 2.  Grounds  of  Relief. — Proof 
of  Fraud. — Fraud  in  connection  with  purchases  of  land  at  tax  and  execution 
sales  is  not  established  by  questionable  evidence  of  value,  and  the  fact  that  the 
purchaser  was  a  man  of  great  power  and  influence,  and  bought  the  land  at  much 
less  than  the  value  set  by  the  owners,  from  which  it  was  sought  to  be  inferred 
that  judges,  mayors,  appraisers,  and  possible  purchasers,  all  were  frightened  or 
corrupt. 5''*'' 

M.  Redemption — 1.  Regulation  of  Right. — The  grantee  in  a  tax  deed 
can  not  claim  to  have  been  denied  due  process  of  law  or  the  equal  protection  of 
the  law  by  a  state  statute  requiring  the  giving  of  notice  to  the  original  owners  in 
order  to  cut  off  the  right  of  redemption,  on  the  theory  that,  by  the  proceedings 
under  the  tax  laws,  the  state  acquired  an  absolute  title,  which  it  conveyed  by  the 
tax  deed,  and  that  the  statute  operated  to  divest  such  title  and  transfer  it  to  an- 
other, where  the  highest  state  court  holds  that,  whatever  title  the  state  held,  it 
sold  only  an  interest  which  was  subject  to  redemption."''' 

IX.    Refunding  and  Recovery  Back  of  Taxes. 

B.  Recovery  Back — 3.  Payment  Must  Not  Be  V'oluntary. — See  note  89. 
To  permit  persons  not  affected  by  a  statute  imposing  a  tax  to  pay  the  sum  thereby 
assessed,  and  tlien  sue  for  its  recovery  on  the  ground  that  the  act  was  void, 


sufficiency  of  the  description  to  identify 
the  land  in  connection  with  the  notice 
given  to  appellant  by  the  record.  And 
this  was  not  obiter.  Union  Pac.  R.  Co. 
V.  Mason,  etc.,  R.  Co.,  222  U.  S.  237,  56 
L.  Ed.  180,  32  S.  Ct.  86;  Ontario  Land 
Co.  V.  Wilfong,  223  U.  S.  543,  56  L.  Ed. 
544.    32    S.    Ct.    328. 

567-44a.  Ontario  Land  Co.  z:  Wilfong, 
223  U.  S.  543,  56  L.  Ed.  544,  32  S.  Ct.  328. 

"The  tax  deed  under  which  the  de- 
fendant in  error,  Wood,  claims  title  was 
executed  in  pursuance  of  a  sale  made 
upon  a  notice  published  only  in  a  Sun- 
day newspaper.  This  fact  does  not  ap- 
pear from  the  deed  itself,  as  an  analogous 
infirmity  appeared  in  the  tax  deed  before 
the  court  in  Redfield  v.  Parks,  132  U.  S. 
239,  33  L.  Ed.  327,  10  S.  Ct.  83.  The  deed 
upon  its  face  was  a  valid  instrument,  and 
could  be  impeached  only  by  evidence 
aliunde.  The  state  court  did  not  deem  it 
necessary  to  consider  whether  such  a 
notice  was  sufficient,  because  it  held  that 
a  state  statute  made  such  a  deed  prima 
facie  evidence  of  the  sufficiency  of  the 
notice,  and  that  possession  under  such  a 
deed  for  the  prescribed  period  met  the 
requirements  of  the  state  statute  of  limi- 
tations. The  decision  therefore  did  not 
reach  the  only  federal  question  which 
can  be  imagined  with  respect  to  this  part 
of  the  case,  namely,  that  a  sale  upon  such 
a  notice  was  wanting  in  due  process  of 
law,    but    rested    upon    entirely    adequate 


grounds  of  a  nonfederal  nature."  Elder 
V.  Wood,  208  U.  S.  226,  52  L.  Ed.  464,  28 
S.    Ct.    263. 

571-59a.  Proof  of  fraud. — Ubarri  v.  La- 
borde,  214  U.  S.  168,  53  L.  Ed.  953,  29  S. 
Ct.  549. 

5i2-67a.  Rusch  v.  Duncan  Land,  etc., 
Co.,  211  U.  S.  526,  53  L.  Ed.  312,  29  S- 
Ct.  172.  So  holding  under  M:ch.  Pub. 
Laws  1897,  Act  No.  229. 

Where  a  tax  title  was  taken  subject 
to  redemption,  it  can  not  be  said  to  be 
divested  without  due  process  of  law  if 
redemption  were  exercised  according  to 
law.  How  redemption  can  be  exer- 
cised and  how  it  can  be  cut  ofif  depends 
upon  the  provisions  of  the  statute.  A 
purchaser  of  a  tax  title  did  not  take  an 
indefeasible  title,  where  the  deed  which 
he  received  from  the  state  was  expressly 
made  subject  to  a  right  of  redemption 
imposed  by  statute.  Whatever  the  title 
which  the  state  held,  it  sold  an  interest 
in  the  lands  which  was  liable  to  be  di- 
vested by  redemption.  Rusch  v.  Duncan 
Land,  etc.,  Co.,  211  U.  S.  526,  53  L.  Ed. 
312,    29    S.    Ct.    172. 

577-89.  Payment  must  not  be  voluntary. 
— Gaar,  etc.,  Co.  v.  Shannon,  223  U.  S. 
468,  56  L.  Ed.  510,  32  S.  Ct.  236.  See,  also. 
Southern  R.  Co.  v.  King,  217  U.  S.  524. 
54  L.  Ed.  868,  30  S.  Ct.  594;  Leathe  f. 
Thomas,  207  U.  S.  93,  52  L.  Ed.  118,  28 
S.    Ct.    30. 


1194 


Vol.  XL 


TAX  COLLECTOR. 


577-583 


would  reverse  the  rule  that  "one  who  would  strike  down  a  state  statute  as  viola- 
tive of  the  federal  constitution  must  bring  himself  by  proper  averments  and 
showing  witliin  the  class  as  to  whom  the  act  thus  attacked  is  unconstitutional. 
He  must  show  that  the  alleged  unconstitutional  feature  of  the  law  injures  him, 
and  so  operates  as  to  deprive  him  of  rights  protected  by  the  federal  constitu- 
tion."S9^ 

Compulsory  Payment. — See  note  90. 

X.     Disposition  and  Expenditure   of  Taxes. 

F.  Agreement  by  Municipality  to  Pay  Judgments  in  Order  of  Rendi- 
tion.— A  municipality  authorized  by  1  Wilson's  Rev.  &  Ann.  St.  Okl.  1903, 
§  466,  to  levy  an  annual  tax  to  create  a  judgment  fund,  may  make  a  valid  agree- 
ment with  its  judgment  creditors  to  pay  the  judgments  against  it  out  of  such 
fund,  in  the  order  of  their  rendition. ^'^ 

TAXATION  OF  COSTS.— See  ante,  Appeal  and  Error,  p.  34;  Costs,  p. 
396. 

TAX  COLLECTOR.— See  ante.  Taxation,  p.  1156. 


5?7-89a.  Gaar,  etc.,  Co.  v.  Shannon, 
223   U.   S.  46S,  .56  L.   Ed.  510,  32  S.  Ct.  236. 

A  foreign  corporation  doing  only  an 
interstate  business,  and  therefore  not  li- 
able to  the  franchise  tax  imposed  by  Tex. 
Laws  1905,  chap.  19,  can^not  recover  back 
the  amount  of  such  tax,  as  paid  under 
the  duress  of  the  self-executing  pro- 
visions of  the  statute,  under  which  a  cor- 
poration failing  to  pay  the  tax  incurs  a 
penalty  and  forfeit.'^  its  right  to  do  busi- 
ness in  tiie  state,  and  its  right  to  sue. 
Gaar,  etc.,  Co.  v.  Shannon,  223  U.  S.  468, 
56   L.   Ed.   510,   32   S.   Ct.  236. 

578-90.  Payment  under  statute  whose 
self-executing  provisions  amount  to 
duress. — The  paj'ment  by  a  foreign  cor- 
poration of  the  franchise  tax  imposed  by 
Tex.  Laws  1905,  chap.  19,  to  escape  the 
consequences  of  the  self-executing  pro- 
visions of  the  statute,  under  which  a  cor- 
poration failing  to  pay  the  tax  incurs  a 
penalty  and  forfeits  its  right  to  do  busi- 
ness in  the  state,  and  its  right  to  sue,  is 
not  voluntary,  so  as  to  defeat  the  right 
to  recover  back  the  tax  as  paid  under 
protest.  Gaar,  etc.,  Co.  -u.  Shannon,  223 
U.    S.   468,   56  L.   Ed.   510.   32   S.    Ct.   236. 

"Neither  a  statute  imposing  a  tax,  nor 
the  execution  thereunder,  nor  a  mere  de- 
mand for  payment,  is  treated  as  duress. 
It  does  not  necessarily  follow  that  there 
will  be  duress  of  goods.  Or,  if  there  is, 
the  citizen,  to  avoid  the  consequences  of 
the  duress,  may  pay  the  money,  regain 
the  use  of  his  property,  and  maintain  a 
suit  for  the  recovery  of  what  has  been 
exacted  from  him.  The  legal  remedy 
redresses  the  wrong.  But  he  has  the 
same  right  to  sue  if  he  pays  under  com- 
pulsion of  a  statute  whose  self-executing 
-provisions  amount  to  duress."  Gaar,  etc., 
Co.  V.  Shannon,  223  U.  S.  468,  56  L.  Ed. 
510,  32  S.  Ct.  236. 


"An  act  which  declares  that  wiiere  the 
franchise  tax  is  not  paid  by  a  given  date, 
a  penalty  of  25  per  cent  shall  be  incurred, 
the  license  of  the  company  shall  be  can- 
celed, and  the  right  to  sue  shall  be  lost, 
operates  much  more  as  duress  than  a 
levy  on  a  limited  amount  of  property. 
Payment  to  avoid  such  consequences  is 
not  voluntary  but  compulsory,  and  may 
be  recovered  back.  Swift  Co.  v.  United 
States,  111  U.  S.  22,  28  L.  Ed.  341, 
4  S.  Ct.  244;  Robertson  v.  Frank  Bros. 
Co.,  132  U.  S.  17.  23,  33  L.  Ed.  236,  10  S. 
Ct.  5;  Oceanic  Steam  Nav.  Co.  v. 
Stranahan,  214  U.  S.  320,  53  L.  Ed.  1013, 
29  S.  Ct.  671;  Atchison,  etc.,  R.  Co.  v. 
O'Connor  [223  U.  S.  280,  56  L.  Ed.  436, 
32  S.  Ct.  216].  Otherwise,  plaintiff  might 
be  without  any  remedy  whatever."  Gaar. 
etc.,  Co.  V.  Shannon,  223  U.  S.  468,  56  L. 
Ed.  510,  32   S.   Ct.   236. 

"In  Arkansas  Bldg.,  etc.,  Ass'n  v.  Mad- 
den, 175  U.  S.  269,  44  L.  Ed.  159,  20  S. 
Ct.  119,  it  was  held  that  a  taxpayer  was 
not  entitled  to  an  injunction  against  the 
entorcement  of  a  similar  statute  of  the 
state  of  Texas,  unless  he  could  show  that 
there  was  no  adequate  remedy  at  law. 
And,  as  payment  under  such  an  act  was 
treated  as  compulsory,  for  which  suit 
might  be  maintained,  and  as  there  was 
nothing  to  indicate  inability  of  com- 
plainant to  pay,  or  of  the  defendant  to 
respond  to  a  judgment,  the  bill  was  dis- 
missed without  prejudice.  That  neces- 
sarily recognized  that  the  plaintiff  had 
the  right  to  pay  under  protest,  sue  the 
office  for  the  amount  exacted,  and  re- 
cover it  back  in  case  it  should  be  made 
to  appear  that  the  statute  was  void." 
Gaar,  etc.,  Co.  7'.  Shannon,  223  U.  S.  468, 
56    L.    Ed.    510.    32    S.    Ct.    236. 

583-9a.  Judgment.  87  P.  292,  17  Okl. 
1  (;:.>.  reversf'd  Beadles  t'.  Snivscr.  209  U. 
S.   393.   52   T<.    Ed.   840.   28   S.    Ct.   522. 


1195 


586  TBLEGRAPHS  AND  TBLBPHONBS.  Vol.  XI. 

TAX  DEED.— See  ante,  Taxation,  p.  1156. 

TAXES. — See  ante,  Licenses,  p.  826;  Revenue  Laws,  p.  1071;  Succession 
Taxes,  p.  1149;  Taxation,  p.  1156. 

TAX  LEVY.— See  ante.  Taxation,  p.  1156. 

TAX  SALE.— See  ante,  Quieting  Title,  p.  1040;  Taxation,  p.  1156. 

TELEGRAMS. — See  post.  Telegraphs  and  Telephones. 

TELEGRAPHS  AND  TELEPHONES. 

III.  Construction  and  Maintenance,  1196. 

A.  The  Right  of  Way,  1196. 

1.  Over  Streets  and  Highways,  1196. 

a.  Right  of  Telegraph  Companies,  1196. 

b.  Right  of  Telephone  Companies,  1197. 

IV.  Operation,  1198. 

A.  Power  of  State  to  Regulate  Price  of  Service,   1198. 
Ay^.  Presumption  in  Favor  of  Rates  Established  by  a  State  Commission. 

1199. 
A%.  Power  of   Municipal  Corporations  to  Regulate  Charges  for  Service, 

1199. 

VI.  Duties  and  Liabilities  as  to  Messages,  1200. 

C.  Validity  of  Stipulations  against  Liability  for  Negligence,   1200. 
E.  Power  of  State  to  Impose  Penalty  for  Negligent  Failure  to  Transmit 
a  Message  Promptly,  1200. 
VII.  Compensation,  1200. 

C.  What  Constitutes  Capital  upon  Which  a  Company  Is  Entitled  to  Fair 
Return,  1200. 

IX.  Suit  to  Enjoin  Enforcement  of  Rates,  1200. 

CROSS  REFERENCES. 

See  the  title  Telegraphs  and  Telephones,  vol.  11,  p.  584,  and  references 
there  given. 

In  addition,  see  ante,  Constitutional  Law,  p.  264. 

As  to  state  statutes  relating  to  telegraph  companies  considered  as  regulations 
of  interstate  commerce,  see  ante.  Interstate  and  Foreign  Commerce,  p.  689. 
As  to  the  exaction  from  a  foreign  telegraph  company  of  a  charter  fee  as  a  con- 
dition of  continuing  to  do  local  business  in  a  state,  see  ante.  Interstate  and 
Foreign  Commerce,  p.  689. 

III.  Construction   and  Maintenance. 

A.  The  Right  of  Way — 1.  Over  Streets  and  Highways — a.  Right  of 
Telegraph  Companies. — The  right  of  a  telegraph  company  accepting  the  provi- 
sions of  the  Act  of  Congress  of  July  24,  1866,^^  to  construct,  maintain  and  oper- 
ate lines  over  the  post  roads  of  the  United  States,  is  subject  to  reasonable  munic- 
ipal regulation.-^'' 

586-5a.  14  Stat,  at  L.  221,  chap.  230,  accepting  the  provisions  of  the  Act  of 
Rev.  Stat.,  §  .5263,  et  seq.,  U.  S.  Comp.  July  24,  18G6,  giving  the  right  to  con- 
stat. 1901,  p.  3579.  struct,  '  maintain,    and    operate    lines    over 

586-5b.      Municipal    regulation    of    lines  the    post    roads    of    the  United    States,    is 

over    post    roads. — Western    Union    Tel.  not   exceeded,    as    granting   arbitrary   dis- 

Co.  V.  Richmond,  224  U.  S.  160,  56  L.  Ed.  cretion   to  municipal  officers,   by  an   ordi- 

710,  32  S.  Ct.  449.  nance   which   leaves   to   the   determination 

The  municipal  power  to  make  reason-  .  of  the  city  engineer  the  size,  quality,  char- 
able  regulations  respecting  the  occupancy  acter,  number,  condition,  appearance,  and 
of  the  city  streets  by  a  telegraph  company  manner    of  erection    of    poles  and    wires, 

1196 


Vol.  XL 


TELEGRAPHS  AND  TELEPHONES. 


586 


b.  Right  of  Telephone  Companies. — The  assent  of  a  municipality,  when  once 
given  conformably  to  the  charter  of  a  telephone  company,  empowering  the  latter, 
with  and  by  the  consent  of  the  city  council,  to  construct  and  maintain  a  telephone 
system  in  the  city,  perfects  the  company's  franchise,  which,  being  a  legislative 
grant,  can  not  thereafter  be  repealed,  nullified,  or  forfeited  by  municipal  ordi- 
nance.'^'' Whether  the  right  to  use  the  streets  of  a  municipality  for  telephone 
purposes,  acquired  by  a  telephone  company  conformably  to  its  charter,  by  which 
it  was  empowered  with  and  by  the  consent  of  the  municipal  council  to  construct 
and  maintain  a  telephone  system  in  the  municipality,  was  withdrawn  or  made 
subject  to  municipal  revocation,  must  be  determined  by  a  proper  construction  of 
the  constitutional  provision  or  statute  alleged  to  have  that  eft'ect.''"^     The  right  to 


and  to  the  judgment  of  other  officials  the 
safety  and  suitableness  of  poles,  wires,  at- 
tachments, insulations,  etc.,  and  which 
empowers  the  committee  on  streets  to  re- 
quire permission  to  be  given  to  others  to 
place  lighting  wires  upon  the  poles, 
where,  in  the  committee's  opinion,  they 
will  not  interfere  with  the  owner's  busi- 
ness, and  which  authorizes  such  commit- 
tee to  pass  upon  underground  plans,  and 
invests  other  officials  with  supervisory 
powers  over  the  carrying  out  of  such 
plans,  including  the  laying  of  conduits 
and  the  replacement  of  pavements.  West- 
ern Union  Tel.  Co.  v.  Richmond,  224  U. 
S.  160,  56  L.  Ed.  710,  32  S.  Ct.  449. 

The  property  of  a  telegraph  company 
accepting  the  provisions  of  the  Act  of 
July  24,  1866,  giving  the  right  to  construct, 
maintain,  and  operate,  lines  over  the  post 
roads  of  the  United  States,  is  not  taken 
without  due  process  of  law  by  a  munici- 
pal ordinance  which  demands  as  a  condi- 
tion of  the  establishment  of  poles  ^nd 
conduits  in  the  city  streets  that  positions 
shall  be  reserved  upon  the  poles  for  the 
city's  wires,  and  that  vinderground  con- 
duits shall  provide  for  30  per  cent  in- 
crease, and  shall  carry  the  city's  wires 
free  of  charge,  one  duct  being  reserved 
for  them,  and  that  space  be  left  in  the 
conduits  for  the  wires  of  third  parties,  to 
i)e  used  on  permission  by  the  city  and 
compensation,  and  which  provides  for 
moving  the  conduits  when  necessary,  at 
the  company's  expense,  and  imposes  a 
specific  money  charge  for  each  pole  or 
underground  mile  of  wire.  Western 
Union  Tel.  Co.  v.  Richmond,  224  U.  S.  160, 
56  L.  Ed.  710,  32  S.  Ct.  449. 

An  annual  municipal  charge  of  $2  per 
pole,  and  the  same  sum  for  each  mile  of 
underground  wire,  which  has  been  paid 
for  many  years  without  complaint,  can 
pot  be  said  to  be  so  unreasonable  as  to  deny 
due  process  of  law  to  a  telegraph  com- 
pany occupying  the  city  streets  under  the 
authority  of  the  Act  of  July  24,  1866,  giv- 
ing the  telegraph  companies  accepting  its 
provisions  the  right  to  construct,  main- 
tain, and  operate  lines  over  the  post  roads 
of  the  United  States.  Western  Union 
Tel.  Co.  z'.  Richmond,  224  U.  S.  160,  56  L. 


Ed.  710,  32  S.  Ct.  449.  See  ante,  DUE 
PROCESS  OF  LAW,  p.  475. 

Limiting  by  municipal  ordinance  the 
privilege  of  a  telegraph  company  as  to 
conduits  to  fifteen  years,  and  providing 
that  after  that  time  the  city  may  impose 
such  restrictions,  conditions,  and  charges 
as  it  sees  fit,  or  may  order  the  conduits 
removed,  can  not  be  regarded  as  an  at- 
tempt to  make  the  telegraph  company 
contract  itself  out  of  the  benefit  of  the 
Act  of  July  24,  1866,  under  which  it  has 
the  right  to  construct,  maintain,  and  op- 
erate lines  over  the  post  roads  of  the 
United  States;  especiall}^  in  view  of  an 
amendment  to  the  ordinance,  providing 
that  none  of  its  obligations  shall  interfere 
with  rights  under  that  act.  Western 
Union  Tel.  Co.  v.  Richmond,  224  U.  S. 
160,  56  L.  Ed.  710,  32   S.   Ct.  449. 

586-6a.  Assent  of  municipality  given 
conformably  to  charter  of  company. — 
Louisville  z'.  Cumberland  Tel.,  etc.,  Co.. 
224  U.   S.  649,  56  L.   Ed.  934,  32   S.  Ct.  572. 

Such  a  grant  empowering  a  telephone 
company  to  construct  and  maintain  a  tel- 
ephone sj^stem  in  Louisville,  Kentucky, 
did  not  expire  when,  by  Ky.  Stat.,  §  2742, 
Louisville  was  made  a  city  of  the  first 
class.  Louisville  ?'.  Cumberland  Tel.,  etc., 
Co.,  224  U.  S.  649,  56  L.  Ed.  934,  32  S.  Ct. 
572 

586-6b.  Withdravsral  of  right  to  use  city 
streets — Construction  of  constitutional 
provision  or  statute. — Louisville  v.  Cum- 
berland Tel.,  etc.,  Co.,  224  U.  S.  649,  56  L. 
Ed.  934,  32  S.  Ct.  572. 

The  right  so  acquired  by  a  telephone 
company,  to  construct  and  maintain  a 
telephone  system  in  Louisville,  Kentucky, 
was  not  withdrawn  or  made  subject  to 
municipal  revocation  by  Ky.  Const.  1891, 
§§  156,  163,  164,  199,  or  Ky.  Stat.,  §§  2742, 
2783,  2825,  conferring  upon  municipalities 
the  right  to  grant  street  franchises,  or  by 
Ky.  Stat.,  §  573,  enacted  tmder  the  reserve 
power,  repealing  all  special  corporate 
privileges,  since  such  repeal  relates  to  ex- 
clusive  grants,  tax  exemptions,  monopo- 
lies, and  similar  immunities,  and  the  other 
provisions  are  in  the  main  prospective, 
the  constitution,  while  limiting  for  the 
future  the  power  to  sell  street  franchises, 


1197 


586 


TELEGRAPHS  AND   TELEPHONES. 


Vol.  XI 


use  the  streets  of  a  city  for  telephone  purposes,  possessed  by  a  telephone  com- 
pany under  its  charter,  passes  to  a  new  corporation  formed  by  consolidation  con- 
formably to  a  statute,  which  declares  that  the  consolidated  company  shall  be 
vested  with  all  the  property,  business,  assets,  and  effects  of  the  constituent  com- 
panies, without  deed  or  transfer,  and  bound  for  all  their  contracts  and  liabilities.^*^ 
A  municipality  may  by  its  conduct  be  estopped  from  claiming  that  its  consent  to 
the  use  of  its  streets  by  a  telephone  company  for  telephone  purposes  was  inopera- 
tive, and  from  denying  that  a  consolidated  company  has  succeeded  to  the  rights 
and  obligations  of  its  predecessor.*^*^  Some  of  the  peculiar  provisions  of  consti- 
tutional enactments  and  statutes  authorizing  telephone  companies  to  occupy 
streets  or  highways  have  received  the  interpretation  of  the  supreme  court.*'*' 

IV.    Operation. 

A.    Power  of  State  to  Regulate  Price  of  Service. — The  power  to  fix, 
subject  to  constitutional  limits,  the  charges  of  such  a  business  as  the  furnishing 


distinctly  protecting  the  interests  of  those 
public-utility  companies  whose  charters 
had  been  theretofore  granted  conferring 
such  rights,  where  work  had  in  good  faitli 
been  begun  thereunder.  Louisville  v. 
Cumberland  Tel.,  etc.,  Co.,  234  U.  S.  649, 
5b  I...   Ed.  934,  32  S.  Ct.  .572. 

686-60.  Effect  of  consolidation. — Louis- 
ville V.  Cumberland  Tel.,  etc.,  Co..  224  U. 
S.  649,  56  L.  Ed.  934,  32  S.  Ct.  572. 

586~6d.  Estoppel. — Louisville  v.  Cum- 
berland Tel.,  etc.,  Co.,  224  U.  S.  649,  56  L. 
Ed.^  934,  32  S.  Ct.  572. 

The  demand  by  a  municipality  from  a 
consolidated  telephone  company  of  the 
bond  previously  required  of  the  origuial 
company,  and  the  expenditure  of  large 
sums  by  the  consolidated  company  in  ex- 
tending and  improving  the  telephone  sys 
tern,  with  the  knowledge  and  acquiescence 
of  the  city,  and  in  reliance  upon  the  stat- 
utory conveyance  of  the  street  rights,  es- 
tops the  city  from  claiming  that  its  con- 
sent to  the  use  of  the  city  streets  by  the 
original  company  for  telephone  purposes 
was  inoperative,  and  from  denying  that 
the  consolidated  company  had  succeeded 
to  the  rights  and  obligations  of  its  pred- 
ecessor. Louisville  v.  Cumberland  Tel., 
etc.,  Co.,  224  U.  S.  649,  56  L.  Ed.  934,  32 
S.  Ct.  572. 

586-6e.  No  grant  to  a  telephone  com- 
pany of  the  right  to  occupy  the  streets  of 
a  city  without  its  consent,  which  will  be 
protected  by  the  contract  clause  of  the 
federal  constitution,  can  be  deduced  from 
the  amendment  of  October  10,  1911,  to 
Cal.  Const.,  art.  11,  §  19,  under  which  per- 
sons or  corporations  may  establish  and 
operate  works  for  supplying  the  inhab- 
itants of  a  municipality  with  telephone 
service  "upon  such  conditions  and  under 
such  regulations  as  the  municipality  mav 
prescribe  under  its  organic  law,  on  con- 
dition that  the  municipal  government 
shall  have  the  right  to  regulate  the 
charges."  Pomona  v.  Sunset  Tel.,  etc.. 
Co..  224  U.  S.  330,  56  L.  Ed.  788,  32  S.  Ct 
477. 


A  telephone  company  can  claim  no  con- 
tract right  under  the  amendment  of  March 
20,  1905,  to  Cal.  Civ.  Code,  §  536,  to  oc- 
cupy the  streets  of  a  city  for  local  busi- 
ness without  the  city's  consent,  in  view 
of  the  passage,  before  the  date  when  such 
amendment  by  its  terms  was  to  go  into 
efifect,  of  the  franchise  Act  of  March  22,. 
1905.  taking  effect  iminediately,  and  pro- 
viding that  every  franchise  to  erect  or 
lay  telephone  wires,  except  "telephone 
lines  doing  an  interstate  business."  shall 
be  granted  upon  the  conditions  named  i)i 
such  act,  which  leaves  franchise  grants 
generally  to  the  local  subdivisions  con- 
cerned, and  contains  a  general  repealing 
clause  naming  certain  exceptions,  of 
which  §  536  is  not  one.  Pomona  v.  Sun- 
set. Tel.,  etc.,  Co.,  224  U.  S.  330,  56  L.  Ed. 
788,  32  S.  Ct.  477. 

A  contract  right  to  maintain  only 
through  interstate  telephone  wires  in  the 
city  streets,  and  not  to  maintain  the  poles 
and  wires  connecting  local  subscribers, 
is  all  that  can  be  gathered  from  the  ex- 
ceptions in  favor  of  "telephone  lines  doing 
interstate  business,"  made  by  Cal.  Act  of 
March  22,  1905,  which  repealed,  before  it 
took  efifect,  the  Act  of  March  20,  1905, 
amending  Cal.  Civ.  Code,  §  536,  so  as  to 
include  telephone  companies  among  the 
corporations  which  could  occupy  the  citj' 
streets  without  municipal  consent.  Po- 
mona V.  Sunset  Tel.,  etc.,  Co.,  224  U.  S. 
330,  56  L.  Ed.  788,  32  S.  Ct.  477. 

Words  "telegraph  corporations"  do  not 
include  telephone  corporations. — The 
words  "telegraph  corporations"  in  §  536 
of  the  Civil  Code  of  California,  which 
provides  that  "Telegraph  corporations 
may  construct  lines  of  telegraph  along 
and  upon  any  public  road  or  highway 
*  *  *  and  may  erect  poles  *  *  *  Jn  such 
manner  and  at  such  points  as  not  to  in- 
commode the  public  use  of  the  road,"  do- 
not  include  telephone  corporations.  Po- 
mona V.  Sunset  Tel.,  etc.,  Co.,  224  U.  S_ 
330,  343,  56  L.   Ed.  788,  32  S.  Ct.  477. 


1198 


\ol.  XI 


TELEGRAPHS  AND   TELEPHONES. 


587 


to  the  public  of  telephone  service  is  among  the  powers  of  government,  is  legisla- 
tive in  its  character,  continuing  in  its  nature,  and  cai)able  of  being  vested  in  a 
municipal  corporation. ^^'^ 

A|.  Presumption  in  Favor  of  Rates  Established  by  a  State  Commis- 
sion.— The  presumption  in  favor  of  the  correctness  of  telephone  rates  estab- 
lished by  a  state  commission  obtains,  although  the  data  upon  which  the  commis- 
sion acted  may  have  been  insufficient,  so  long  as  the  rates  adopted  were  not  based 
entirely  upon  arbitrary  conjecture. ^-^ 

A|.  Power  of  Municipal  Corporations  to  Regulate  Charges  for  Serv- 
ice.— The  power  of  a  state  to  tix,  subject  to  constitutional  limits,  the  charges 
of  a  telephone  company  for  furnishing  to  the  public  telephone  service,  may  be 
delegated  to  a  municipal  corporation. ^-"^  Xo  valid  objection  to  intrusting  a  mu- 
nicipal council  with  the  power  to  regulate  telephone  rates  can  be  based  upon  the 
theory  that  the  council  is  not  an  impartial  tribunal  because  it  is,  in  effect,  made 
a  judge  in  its  own  case,  or  that  the  judgment  and  sense  of  justice  of  the  council- 
men  will  be  distorted  by  their  dependence  upon  the  wall  of  the  people  which  re- 
sults from  a  provision  in  the  city  charter  empowering  25  per  cent,  of  the  electors 
to  recall  a  member  of  the  council  and  require  him  again  to  stand  for  election. ^^c 
Municipal  authority  to  enter  into  a  contract  fixing  unalterably,  during  the  term 
of  the  franchise,  charges  for  telephone  service,  and  disabling  itself  from  exercis- 
ing the  charter  powder  of  regulation,  must,  at  the  very  least,  necessarily  be  implied 
from  the  controlling  statutes,  even  if  it  be  conceded  that  anything  less  than  a 
clear  and  affirmative  legislative  expression  is  a  sufficient  foundation  upon  which 
to  rest  an  authoritv  of  this  nature.^-'' 


587-lla.  Power  to  fix  charges  for  tele- 
phone service. — Home  Te!.,  etc.,  Co.  v. 
Los  Angeles,  211  U.  S.  265,  53  L.  Ed.  176, 
29  S.  Ct.  50. 

587-12a.  Presumption  in  favor  of  rates 
established  by  a  state  commission. — 
Railroad  Comm.  v.  Cumberland  Tel.,  etc., 
Co.,  212  U.  S.  414,  53  L.  Ed.  577,  29  S.  Ct. 
357.  reversing  156  Fed.  Rep.  823. 

587-12b.  Power  to  fix  charges  may  be 
delegated  to  a  municipal  corporation. — 
Home  Tel.,  etc.,  Co.  v.  Los  Angeles,  211 
V.  S.  265,  53  L.  Ed.  176,  20  ?.  Ct.  50,  af- 
firming 155  Fed.  Rep.  554. 

Municipal  ordinances  fixing  telephone 
rates  do  not  deny  the  due  process  of  law 
guaranteed  by  U.  S.  Const.,  fourteenth 
amendment,  because  the  section  ot  the 
municipal  charter  under  the  authority  of 
which  they  were  enacted  does  not  ex- 
pressly provide  for  notice  and  hearing, 
where  both  notice  and  an  opportunity  to 
be  heard  were  in  fact  accorded  by  ordi- 
nances providing  that  the  rates  be  fixed 
at  a  meeting  of  the  citj"-  cotxncil  held  in 
February  in  each  year,  and  requiring  the 
telephone  company  to  furnish  the  citv 
council  annually  in  that  month  a  state- 
ment of  its  receipts,  expenditures,  and 
property  employed  in  the  business.  Home 
Tel.,  etc.,  Co.  v.  Los  Angeles,  211  U.  S. 
265,  53  L.  Ed.  176,  29   S.  Ct.   50. 

Municipal  regulation  of  rates  not  nec- 
essarily denying  equal  protection  of  laws. 
— ^lunicipal  regulation  of  the  rates  which 
a  telephone  company  may  charge,  on  a 
lower  scale  than  those  prescribed  for  a 
competitor,  does  not  necessarily  deny  the 


equal  protection  of  the  lav/s,  since  such 
competitor  may  bring  its  patrons  into 
communicatio;!  with  a  larger  number  of 
persons,  dwelling  in  a  more  widely-ex- 
tended territory,  and  may  render  much 
more  valuable  service.  Home  Tel.,  etc., 
Co.  V.  Los  Angeles,  211  U.  S.  265,  53  L. 
Ed.  176,  29  S.  Ct.  50. 

587-12C.  Objections  to  intrustmg  munic- 
ipal council  with  power  to  regulate  rates, 
held  not  valid. — Home  Tel.,  etc.,  Co.  r. 
Los  Angeles,  211  U.  S.  265,  53  L.  Ed.  176, 
29   S.   Ct.  50,  affirming  155   Fed.   Rep.   554. 

587-12d.  Power  of  municipality,  by 
contract,  to  disable  itself  from  exercising 
power  of  regulation. — Home  Tel.,  etc.,  Co. 
:•.  Los  Angeles,  211  U.  S.  265,  53  L.  Ed. 
176,  29  S.  Ct.  50,  affirming  155  Fed.  Rep. 
554. 

Charter  authority  to  regulate  telephone 
service  and  to  fix  and  determine  the 
charges  therefor  does  not  empower  a  mu- 
nicipality to  enter  into  a  contract  fixing 
unalterably,  during  the  term  of  the  fran- 
chise, the  charges  for  such  service,  and 
disabling  itself  from  exercising  the  power 
of  regulation.  Decree,  155  Fed.  554,  af- 
firmed. Home  Tel.,  etc.,  Co.  :•.  Los  An- 
geles, 211  U.  S.  265.  53  L.  Ed.  176,  29  S. 
Ct.  50. 

Municipal  authority  to  contract  away 
the.  charter  power  to  regulate  telephone 
rates  can  not  be  gathered  from  the  pro- 
visions of  the  California  statute,  Act 
March  11,  1901  (St.  Cal.  1901,  p.  265,  c. 
103),  under  which  the  telephone  company 
obtained  its  franchise  from  the  city,  that 
application  for  a  franchise  must  be  filed,. 


]  199 


588-589  TEND.  Vol.  XI. 

VI.  Duties  and  Liabilities  as  to  Messages. 

C,  Validity  of  Stipulations  against  Liability  for  Negligence. — Priv- 
ileges and  immunities  of  citizens  of  the  United  States  are  not  abridged,  nor  is 
due  process  of  law  denied,  contrary  to  the  fourteenth  amendment  of  the  federal 
constitution,  by  a  state  statute  under  which,  as  construed  by  the  state  courts,  a 
telegraph  company  can  not  limit  its  liability  for  its  negligent  failure  to  deliver  a 
telegram  addressed  to  a  person  in  another  state. ^'^^  Nor  is  the  equal  protection 
of  the  laws  denied  telegraph  companies  and  the  persons  with  whom  it  does  busi- 
ness by  such  a  statute,  although  express  companies  and  other  common  carriers 
may,  by  contract,  limit  their  liability  in  this  respect. i"*" 

E.  Power  of  State  to  Impose  Penalty  for  Negligent  Failure  to  Trans- 
mit a  Message  Promptly. — A  state  statute  under  which  a  penalty  is  incurred 
by  a  telegraph  company  which  negligently  fails  to  transmit  within  the  state  as 
promptly  as  practicable  a  message  received  at  an  office  in  the  state,  for  trans- 
mission to  a  person  in  another  state,  is  a  valid  exercise  of  the  power  of  the  state, 
in  the  absence  of  any  legislation  by  congress  on  the  subject. ^^'^ 

VII.  Compensation. 

C.  What  Constitutes  Capital  upon  Which  a  Company  Is  Entitled  to 
Fair  Return. — No  part  of  the  depreciation  fund  accumulated  by  a  telephone 
company  from  its  receipts  can  be  added  to  the  capital,  upon  which  the  company 
is  entitled  to  a  fair  return  from  rates  established  by  a  state  commission. ^^^^ 

IX.  Suit  to  Enjoin  Enforcement  of  Rates. 

The  burden  of  showing  what  part,  if  any,  of  the  depreciation  fund  accumulated 
by  a  telephone  company  from  its  receipts,  was  added  to  the  capital,  upon  which 
dividends  are  to  be  paid,  rests  upon  the  company  seeking  to  enjoin,  as  confisca- 
tory and  unreasonable,  the  enforcement  of  rates  established  by  a  state  commis- 
sion.^^^ 

TELEPHONES.— See  ante.  Telegil^phs  and  Tei^Ephones,  p.   1196. 

TEMPORARY  INJUNCTION.— See  ante.  Injunctions,  p.  657. 

TENANT. — See  ante,  Landi^ord  and  Tenant,  p.  820. 

TENANTS  IN  COMMON.— See  ante,  Joint  Tenants  and  Tenants  in  Com- 
mon, p.  806. 

TEND. — As  to  contracts  that  tend  to  restrain  trade,  see  ante,  Monopolies 
AND  Corporate  Trusts,  p.  874. 

and,  in  the  discretion  of  the  council,  pub-  TIONAL  LAW,  p.  264;  DUE  PROCESS 

lished;   that  the  city  is  entitled  to  a  per-  OF  LAW,  p.  475. 

centage  of  the  receipts;   that  the  grantee  588-17b.        Equal     protection. — Western 

must    give    bond  to    perform    every    term  Union    Tel.     Co.   v.    Commercial    Milling 

and    condition    of  the    franchise;  that    no  Co.,    218  U.    S.  406,  54  L.    Ed.  1088,  31    S. 

condition  shall  be  inserted  which  restricts  Ct.  59. 

competition,  or  favors  one  person  against  588-21a.     Power  of  state  to  impose  pen- 

another;   and   that  the   franchise   must  be  alty    for    negligent    failure    to  transmit    a 

sold     to    the    highest     bidder,     especially  message  promptly. — Western    Union   Tel. 

since  the  first  section  of  the  act  provides  Co.  v.  Crovo,  220  U.  S.  B64,  55  L.  Ed.  498, 

that    franchises    "shall    be    granted    upon  31  S.  Ct.  399. 

the   conditions   in   this   act  provided,    and  589-23a.      What    constitutes    the    capital 

not  otherwise."     Decree  (C.  C.  1907),  155  upon    which  a    company  is    entitled  to    a 

Fed.   554,  affirmed.     Home  Tel.,  etc.,   Co.  fair  return  from  rates. — Railroad   Comm. 

V.    Los  Angeles,  211   U.    S.  265.  53  L.   £d.  t'.    Cumberland    Tel.,    etc.,  Co.,    212  U.    S. 

176,  29  S.  Ct.  50.  414,   53   L.    Ed.   577.  29   S.   Ct.   357. 

588-17a.  Constitutionality  of  statute  589-25a.  Burden  of  proof  in  suit  to  en- 
prohibiting  limitation  of  liability  upheld.  loin  enforcement  of  rates. — Railroad 
—Western  Union  Tel.  Co.  v.  Commercial  Comm.  v.  Cumberland  Tel.,  etc.,  Co.,  212 
Milling  Co.,  218  U.  S.  406,  54  L.  Ed.  1088,  U.  S.  414,  53  L-  Ed.  577,  29  S.  Ct.  357,  re- 
31     S.    Ct.    59.      See    ante,     CONSTITU-  versing  156  Fed.  Rep.  823. 

1200 


Vol.  XL 


TBRRITORIBS. 


TENDER. — See  the  title  Tender,  vol.  11,  p.  590,  and  references  there  given. 

TEN-HOUR  LABOR  LAW.— See  ante,  Labor,  p.  816. 

TERMINAL  FACILITIES.— See  ante,  Carriers,  p.  216;  Monopolies  and 
Corporate  Trusts,  p.  874;    Railroads,  p.  1046. 

TERM  OF  COURT.— See  ante,  Clerks  oe  Court,  p.  241;  Courts,  p.  398; 
Removal  of  Causes,  p.  1058. 

TERM  OF  OFFICER.— See  ante,  Public  Officers,  p.  1035. 

TERRITORIAL  COURTS,— See  ante,  Courts,  p.  398;  Exceptions,  Bill 
of,  and  Statement  of  Facts  on  Appeal,  p.  559. 

TERRITORIAL  GOVERNMENT.— See  ante,  Constitutional  Law,  p.  264. 

TERRITORIAL  JURISDICTION.— See  ante,  Equity,  p.  550. 


TERRITORIES. 

CROSS  REFERENCES. 

See  references  under  Territories,  vol.  11,  p.  593. 

In  addition,  see  ante,  Appeal  and  Error,  p.  34 ; '  Constitutional  Law,  p. 
264;  Courts,  p.  398;  Master  and  Servant,  p.  851. 

As  to  power  of  congress  to  enact  a  statute  requiring  that  territorial  legislation 
shall  be  given  the  same  faith  and  credit  which  it  has  by  law  or  usage  in  the  courts 
of  the  territory  enacting  it,  see  ante.  Constitutional  Law,  p.  264.  As  to  limi- 
tation upon  general  power  of  eminent  domain  assumed  to  exist,  by  provisions  of 
article  2  of  the  ordinance  of  1787  for  the  government  of  the  Northwest  territory, 
see  ante.  Eminent  Domain,  p.  537.  As  to  Alaska  being  a  territory  within  the 
terms  of  the  Interstate  Commerce  Act,  see  ante,  Interstate  and  Foreign  Com- 
merce, p.  689. 

Construction  of  Organic  Acts. — Some  of  the  provisions  of  the  organic 
acts  of  territories  have  been  construed  by  the  supreme  court  of  the  L'nited 
States.i 


1.  Authority  to  legislate  concerning  per- 
sonal injuries  and  rights  of  action  there- 
for was  conferred  on  the  territory  of  New 
Mexico  by  Organic  Act  Sept.  9,  1850,  c. 
49,  9  Stat.  449,  extending  si:ch  authority 
to  all  rightful  subjects  of  legislation  con- 
sistent with  the  constitution  of  the  United 
States,  although  such  act  also  provides 
that  the  constitution  and  all  laws  of  the 
United  States  which  are  not  locally  inap- 
plicable shall  have  the  same  force  and  ef- 
fect within  the  territory  as  elsewhere 
within  the  United  States.  Judgment 
(Tex.  Civ.  App.  1907),  99  S.  W.  190,  af- 
firmed. Atchison,  etc.,  R.  Co.  z\  Sowers, 
213  U.   S.  55,  53  L.   Ed.  695,  29   S.   Ct.  397. 

Granting  of  special  privileges  forbid- 
den.— The  granting  of  special  privileges 
by  any  form  of  legislative  action,  and  not 
merely  the  conferring  of  such  privileges 
as  a  part  of  the  grant  of  a  forbidden  priv- 
ate charter,  was  what  was  prohibited  by 
the  provision  of  the  Washington  Organic 
Act  of  March  2,  1867  (14  Stat,  at  L.  426, 
chap.  150),  that  the  territorial  legislature 
should  not  grant  private  charters  or 
special  privileges,  but  might  enact  general 
incorporation  acts.  Berrj'man  v.  Board, 
222  U.  S.  334,  56  L.   Ed.  225,  32  S.   Ct.  147. 

The    generic     prohibition    against     the 


granting  of  special  privileges,  made  l)y 
the  Washington  Organic  Act  of  March  2, 
1867,  can  not  be  construed  as  intended  to 
forbid  merely  the  creation  of  such  priv- 
ileges as  a  legislative  grant  of  an  exclu- 
sive right  to  ferries,  bridges,  etc.,  even  if 
it  be  conceded  that  such  grants  were  a 
common  form  of  territorial  legislative 
abuse  prior  to  the  adoption  of  that  stat- 
ute, and  were  the  generating  cause  of  the 
insertion  of  this  prohibition.  Berrjanan 
V.  Board,  222  U.  S.  334,  56  L.  Ed.  225,  32 
S.   Ct.   147. 

A  territorial  statute  giving  perpetual 
succession  to  an  incorporated  educational 
institution,  and  endowing  it  with  a  per- 
petual exemption  from  taxation  as  to  all 
its  propertj',  real  and  personal,  grants  an 
especial  privilege  within  the  meaning  of 
the  provisions  of  the  Washington  Or- 
ganic Act  of  March  2,  1867,  that  the  terri- 
torial legislature  shall  not  grant  private 
charters  or  especial  privileges,  but  may 
enact  general  incorporation  acts.  Berry- 
man  V.  Board.  222  U.  S.  334,  56  L.  Ed.  235. 

r;2  S.  Ct.  147. 

The  power  of  the  territor}'  of  Wash- 
ington to  accept  a  deed  of  land  as  a  site 
for  the  seat  of  government,  and  the  erec- 
tion of  a  capitol  building,  even  if  not  in- 


12  U   S   Enc— 76 


1201 


2-598 


TICKETS. 


Vol.  XL 


Effect  of  Permission  Granted  by  Organic  Act  to  Enact  Local  or  Spe- 
cial Laws. — General  prohibitions  in  the  Act  of  July  30,  1886,  c.  818,  24  St. 
170,  against  the  enactment  by  territorial  Legislatures  of  local  or  special  laws  in 
certain  enumerated  cases,  have  no  application  where  specific  permission  to  the 
contrary  is  granted  by  the  organic  act  applying  to  a  particular  territory.^ 

The  assent  of  congress  to  the  grant  of  an  especial  privilege  by  the 
territorial  legislature,  contrary  to  the  express  provisions  of  the  organic  act, 
can  not  be  implied  from  its  failure  to  disapprove  such  enactment.^ 

The  annulment  by  congress  of  territorial  legislation  conformably  to 
the  provisions  of  the  organic  act  establishing  the  territory,  that  all  territorial 
laws  shall  be  submitted  to  congress,  and,  if  disapproved,  shall  be  null  and  of  no 
effect,  does  not  relate  back  so  as  to  render  invalid  from  the  time  of  enactment 
territorial  laws  duly  enacted  and  within  the  legislative  power  of  the  territory, 
but  such  laws  remain  in  force  until  congress  exerts  its  authority.-* 

Status  of  Porto  Rico. — Porto  Rico  is  a  completely  organized  territory  al- 
though not  a  territory  incorporated  into  the  United  States.^ 

TESTAMENTARY  CAPACITY.— See  post.  Wills. 

TESTATORS'  ESTATES. — See  ante,  Executors  and  Administrators,  p. 
564. 

TESTIMONY. — See  ante,  EvidkncE,  p.  558;  Expert  and  Opinion  Evi- 
dence, p.  569;    Hearsay  Evidence,  p.  618. 

THEIR.— See  note  2a. 

THEREAFTER.— See  note  3. 

TICKET  BROKERS.— See  ante.  Carriers,  p.  216. 

TICKETS.— See  ante.  Carriers,  p.  216. 


cident  to  the  organization  of  the  territorial 
government,  is  implied  from  the  provi- 
sions of  Organic  Act  March  2,  1853  (lO 
Stat.  177,  c.  90)  §  13,  granting  a  sum  of 
money  "for  the  erection  of  suitable  build- 
ings at  the  seat  of  government."  Judg- 
ment (1907),  91  P.  15.  46  Wash.  585,  af- 
firmed. Sylvester  %'.  Washington,  215  U.' 
S.  80,  54  L.  Ed.  101,  30  S.  Ct.  25. 

2.  Effect  of  permission  granted  by  Or- 
ganic Act  to  enact  local  or  special  laws. — 
Ponce  V.  Roman  Catholic  Apostolic 
Church,  210  U.  S.  296,  52  L.  Ed.  1068,  28 
S.  Ct.  737. 

3.  Effect  of  failure  by  congress  to  dis- 
approve grant  of  an  especial  privilege. — 
Berryman  v.  Board,  222  U.  S.  334,  56  L. 
Ed.  225,  32  S.  Ct.  147. 

4.  Effect  of  annulment  by  congress  of 
territorial  legislation. — Atkinson,  etc.,  R. 
Co.  V.  Sowers,  213  U.  S.  55,  53  L.  Ed.  695, 
29  S.  Ct.  397. 

5.  Status  of  Porto  Rico. — Kopel  v.  Bing- 
ham, 211  U.  S.  468,  53  L.  Ed.  286,  29  S.  Ct. 
190. 

598-2a.  Their  investments. — A  charter 
granted  to  a  railroad  company  by  the 
state  of  Georgia  provided:  "The  stock  of 
the  said  company  and  its  branches  shall 
be  exempt  from  taxation  for  and  during 
the  term  of  seven  years  from  and  after 
the  completion  of  the  said  railroads,  or 
any    of    them;"  and    after  that,  "shall    be 


subject  to  a  tax  not  exceeding  one-halt 
of  one  per  cent,  per  annum,  on  the  net 
proceeds  of  their  investments."  It  was 
suggested  that  by  "their  investments"  was 
meant  the  investments  of  the  sharehold- 
ers in  the  company's  stock.  The  court 
said:  "This  interpretation  is  based  upon 
the  use  of  the  plural  their;  but  in  many 
places  in  this  same  charter  the  company 
is  referred  to  in  the  plural.  As  this  same 
act  provides  for  the  organization  of  one 
or  more  companies  to  construct  branch 
lines  and  extends  to  them  the  same  ta.x 
exemption,  it  is  grammatically  correct  to 
read  their  as  referring  to  this  plurality  of 
companies.  That  'stock'  in  the  first 
clause  means  capital,  and  'their  invest- 
ments,' the  property  into  which  the  com- 
pany's capital  has  gone,  seems  in  any 
view  you  take  of  it  the  most  rational  in- 
terpretation of  the  matter.  That  the  only 
mode  of  taxation  stipulated  for  after  the 
period  of  total  exemption  is  a  tax  upon 
the  net  income  of  the  company's  property 
is  seemingly  the  plain  and  obvious  mean- 
ing of  this  contract."  Wright  v.  Georgia 
R.,  etc.,  Co.,  216  U.  S.  420,  54  L.  Ed.  544, 
30  S.  Ct.  242.  See  ante,  CORPORA- 
TIONS, p.  381;  TAXATION,  p.   1156. 

598-3.  Thereafter. — See  Minneapolis, 
etc.,  R.  Co.  V.  Doughty,  208  U.  S.  251,  258, 
52  L.  Ed.  474,  28  S.  Ct.  291.  See,  also, 
ante,  AFTER,  p.  16.  And  see  ante, 
PUBLIC  LANDS,  p.  1012. 


1202 


Vol.  XL       TRADEMARKS,   TRADENAMES,  ETC.  602 

TIDAL  WATERS.— See  ante,  Boundaries,  p.  206;  Navigable  Waters,  p. 
914;    post,  Waters  and  Watercourses. 

TIDE  LANDS. — See  ante,  Limitation  of  Actions  and  Adverse  Posses- 
sion, p.  828;  Navigable  Waters,  p.  914.  As  to  tide  land  commissioners,  see 
ante,  Estoppel,  553. 

TIMBER.— See  ante,  Mines  and  ^Iinerals,  p.  865;  Public  Lands,  p.  1012; 
post,  Trees  and  Timber. 

TIMBER  LAND.— See  ante,  Public  Lands,  p.  1012. 

TIME. — See  the  title  Time,  vol.  11,  p.  600,  and  references  there  given. 

TITULO.— See  note  1. 

TOBACCO.— See  ante.  Revenue  Laws,  p.  1071. 

TOLLROADS  AND  TURNPIKES.— See  post,  Turnpikes  and  Tollroads. 

TO  MONOPOLIZE.— See  ante.  Monopolies  and  Corporate  Trusts,  p.  874. 

TONNAGE  DUTIES.— See  the  title  Tonnage  Duties,  vol.  11,  p.  604,  and 
references  there  given. 

TORTS. — See  the  title  Torts,  vol.  11,  p.  608,  and  references  there  given. 
And  see  ante,  Officers  and  Agents  of  Private  Corporations,  p.  925. 

TOWAGE,  TUGS  AND  TOWS.— See  the  title  Towage,  Tugs  and  Tows, 
vol.  11,  p.  610.  and  references  there  given. 

TOWNS  AND  TOWNSHIPS.— See  the  title  Towns  and  Townships,  vol. 
11,  p.  613,  and  references  there  given. 

TOWN  SITE.— See  ante.  Public  Lands,  p.  1012. 

TRADE— TRADING— TRADER.— See  ante.  Merchant,  Mercantile- 
Merchandise,  p.  861. 

TRADE  COMBINATIONS.— See  ante.  Monopolies  and  Corporate  Trusts, 
p.  874. 


TRADEMARKS,  TRADENAMES  AND  UNFAIR  COMPETITION. 

I.  Trademarks,  1204. 

A.  General  Considerations,  1204. 

1.  Definition,  1204. 

B.  Office  and  Purpose  of.   1204. 

C.  What  ^lay  Be  Adopted  as  Trademarks.  1204. 

1.  In  General,  1204. 

4.  Generic  or  Descriptive  Terms,   1204. 

a.  In  General,  1204. 

5.  Geographical  Names,  1204. 

H.  Abandonment  or  Termination  of  Right,   1205. 
I.  What  Constitutes  an  Infringement,  1205. 
1.  In  General,  1205. 

II.  Tradenames,   1205. 

III.  Unfair  Competition,   1206. 

B.  In  General.  1206. 

602-1.  Justo  titulo. — "The  phrase  justo  which  is  in  question.'  Section  1952. 
titulo  is  explained  to  mean  a  title  such  (Code  of  Philippine  Islands.)  Of  course 
as  to  transfer  the  property,  Schmidt,  this  does  not  mean  that  the  titulo  must 
Civil  Law  of  Spain  and  Mexico,  289,  290;  have  been  effective  in  the  particular 
see  Partidas,  1,  18,  T.  29,  P.  3;  or  as  it  case,  for  then  prescription  would  be  un- 
is  defined  in  the  civil  code  of  a  few  years  necessary."  Tiglao  v.  Insular  Govern- 
later  than  the  decree  of  1880,  'that  which  ment,  215  U.  S.  410,  416,  54  L.  Ed.  257,  30 
legally  suffices  to  transfer  the  ownership  S.  Ct.  129.  See  ante,  PRESCRIPTION, 
or    property    right,    the    prescription    of  p.  999. 

1203 


617-619  TRADEMARKS,  TRADENAMES,  ETC.  Vol.  XI. 

CROSS  REFERENCES. 

See  the  title  Trademarks,  Tradenames  and  Unfair  Competition,  vol.  11,  p. 
617,  and  references  there  given. 

In  addition,  see  ante,  Appeal  and  Error,  p.  34;  International  Law,  p.  686. 
As  to  jurisdiction  of  the  federal  supreme  court  on  the  issue  of  unfair  competi- 
tion on  appeal  from  the  circuit  court  of  appeals,  see  ante,  Appeal  and  Error,  p. 
34.  As  to  how  a  final  decree  of  a  circuit  court  of  appeals  in  a  suit  to  enjoin  the 
infringement  of  a  trademark  may  be  brought  up  for  review  by  the  federal  su- 
preme court,  see  ante,  Appeal  and  Error,  p.  34 ;  Certiorari,  p.  228.  xA.s  to  con- 
tempt of  injunction  decree  granting  relief  against  unfair  competition  and  in- 
fringement of  trademarks,  see  ante.  Contempt,  p.  367.  As  to  jurisdiction  of 
United  States  courts  over  trademarks,  see  ante.  Courts,  p.  398. 

I.  Trademarks. 

A.  General  Considerations — 1.  Definition. — The  term  trademark  has 
been  in  use  from  a  very  early  date ;  and,  generally  speaking,  means  a  distinctive 
mark  of  authenticity,  through  which  the  products  of  particular  manufacturers 
or  the  vendible  commodities  of  particular  merchants  may  be  distinguished  from 
those  of  others. ^^ 

B.  Office  and  Purpose  of. — See  note  7. 

C.  What  May  Be  Adopted  as  Trademarks — 1.  In  General. — See  note 
9.  A  trademark  may  consist  in  any  symbol  or  in  any  form  of  words ;  but 
as  its  office  is  to  point  out  distinctively  the  origin  or  ownership  of  the  articles  to 
which  it  is  affixed,  it  follows  that  no  sign  or  form  of  words  can  be  appropriated 
as  a  valid  trademark  which,  from  the  nature  of  the  fact  conveyed  by  its  primary 
meaning,  others  may  employ  with  equal  truth,  and  with  equal  right,  for  the  same 
purpose.^''  A  trademark  must  be  distinctive  in  its  original  signification,  pointing 
to  the  origin  of  the  article,  or  it  must  have  become  such  by  association.^''  No 
one  can  claim  protection  for  the  exclusive  use  of  a  trademark  or  tradename 
which  would  practically  give  him  a  monopoly  in  the  sale  of  any  goods  other  than 
those  produced  or  made  by  himself.  If  he  could,  the  public  would  be  injured 
rather  than  protected,  for  competition  would  be  destroyed.^'' 

4.  Generic  or  Descriptive  Terms — a.  In  General. — See  note  15. 

5.  Geographical  Names. — Names  which  are  merely  geographical  can  not  be 

617-la.  Definition  of  trademark.— Stand-  Co.,  220  U.  S.  446,  55  L-  Ed.  536,  31  S.  Ct. 

ard  Paint  Co.  v.  Trinidad,  etc.,   Mfg.  Co.,  456. 

220  U.  S.  446,  55  L.  Ed.  536,  31  S.  Ct.  456.  618-9b.     Must  be  distinctive.— Standard 

618-7.  The   office   of  a  trademark  is   to  Paint  Co.  v.  Trinidad,  etc.,  Mfg.  Co.,  220 

pomt  out  distinctively  the  origin  or  own-  u.  S.  446,  55  L.  Ed.  536,  31  S.  Ct.  456. 


ership  of  the  articles  to  which  it  is  affixed 


618-9C.     Exclusive  use  creating  monop- 


Standard  Paint  Co.  v.  Trinidad,  etc.,  Mfg.  ,        "e^*     .      ^  m   ■    ^  n  t  -.-a    i    ,  tK 

r^    oon  TT    Q    11A    rn  T     T^A    r-yp    oi   c    rv        ^'^V- — Standard  Paint  Co.  2:   Irinidad,  etc., 
Co.,  220  U.   S.  446,  55   L.   Ed.  .36.  31  S.  Ct.        ^/^^    ^^^  ^^^  u.   S.  446,   55   L.    Ed.   536,   31 


S.  Ct.  456. 


456. 

618-9.  What  may  be  used  as  trademarks.  .     . 

—The  insignia  of  the  Carthusian  monks—  619-15.   Generic   or   descriptive   terms.— 

a  globe,   cross,   and  seven  stars— with  the  Standard  Paint  Co.  v.  Trinidad,  etc.,  Mfg. 

words      "Gde.       Chartreuse"      underneath,  Co.,  220  U.  S.  446,  454,  55  L.  Ed.  536,  31  S. 

could  be   registered  as   a  valid  trademark  Ct.  456. 

for  a  liqueur  made  by  those  monks  at  their  The  word  "Ruberoid"  is  not  the  subject 
monastery  of  La  Grande  Chartreuse,  as  of  exclusive  appropriation  as  a  trademark 
could  also  a  label  bearing  the  inscription  for  a  flexible  waterproof  roofing,  since. 
"Liqueur  Fabriquee  a  la  Gde.  Chartre-  even  though  the  roofing  contains  no  rub- 
use,"  with  the  same  ecclesiastical  symbols  ber,  the  word  is  descriptive,  and  not  in- 
and  a  fac-simile  of  the  signature  of  a  dicative  of  origin  or  ownership.  Stand- 
former  procureur  of  the  order.  Baglin  v.  ard  Paint  Co.  v.  Trinidad,  etc.,  Mfg.  Co., 
Cusenier  Co.,  221  U.  S.  580,  55  L.  Ed.  863,  220  U.  S.  446,  55  L.  Ed.  536,  31  S.  Ct.  456, 
;n  S.  Ct.  669.  affirming  decree  (1908),  Trinidad  Asphalt 
618-9a.  Symbol  or  form  of  words.—  Mfg.  Co.  r.  Standard  Paint  Co.,  163  E. 
Standard  Paint  Co.  r.  Trinidad,  etc.,  Mfg.  977,  90  C.  C.  A.  195. 

1204 


Vol.  XL 


TRADEMARKS,  TRADENAMES,  ETC. 


620-624 


the  subject  of  exclusive  appropriation  as  trademarks. ^'-'^  Their  nature  is  such 
that  they  can  not  point  to  the  origin  (personal  origin)  or  ownership  of  the  arti- 
cles of  trade  to  which  they  may  be  applied.  They  point  only  at  the  place  of  pro- 
duction, not  to  the  producer,  and  could  they  be  appropriated  exclusively,  the  ap- 
propriation would  result  in  mischievous  monopolies.^'*" 

H.  Abandonment  or  Termination  of  Right. — See  note  32.  The  loss  of 
the  right  of  property  in  trademarks  upon  the  ground  of  abandonment  is  not  to 
be  viewed  as  a  penalty  either  for  nonuser  or  for  the  creation  and  use  of  new 
devices.''^'' 

I.    What  Constitutes  an  Infringement^!.    In  Grne:ral. — See  note  40. 

II.  Tradenames. 

One  may  acquire  by  purchase  the  right  to  use  a  tradename,  and  the  right 
so  acquired  will  be  protected  by  injunction."*'^'' 


620-19a.  Geographical  names  not  sub- 
ject to  exclusive  appropriation  as  trade- 
marks.— Baglin  z'.  Cuseiiier  Co.,  221  U.  S. 
580,  55  L.  Ed.  863,  31  S.  Ct.  069;  Saxlehner 
z..  Wagner,  216  U.  S.  375,  54  L.  Ed.  525,  30 
S.  Ct.  298,  affirming-  157  Fed.  Rep.  745,  85 
C.  C.  A.  321. 

Word  held  a  geographical  name. — The 
owner  of  a  trademark  or  tradename  in 
the  words  "Hunyadi  Janos,"  for  a  natural 
bitter  water,  is  not  entitled,  in  the  absence 
of  fraud  or  unfair  competition,  to  enjoin 
a  manufacturer  of  an  artificial  bitter 
water  from  advertising  and  labeling  the 
product,  "Artificial  Hunyadi,"  especially 
since  the  word  "Hunyadi"  has  become  a 
generic  name  for  mineral  waters  of  a  cer- 
tain type,  coming  from  a  more  or  less  ex- 
tensive district,  if  not  from  anywhere  in 
Hungary.  Decree  (1907),  157  F.  745.  85 
C.  C.  A.  321,  affirmed.  Saxlehner  v.  Wag- 
ner, 216  U.  S.  375,  54  L.  Ed.  525,  30  S.  Ct. 
298. 

Word  held  not  a  geographical  name. — 
The  word  "Chartreuse"  was  susceptible 
of  exclusive  appropriation  as  a  trademark 
by  the  Carthusian  monks  of  the  Monas- 
tery of  La  Grande  Chartreuse  to  desig- 
nate a  liqueur  made  and  sold  by  them  for 
generations,  even  though  the  monks  took 
their  name  from  the  region  in  France  in 
which  they  settled  in  the  eleventh  cen- 
tury. Baglin  v.  Cusenier  Co.,  221  U.  S. 
580,  55  L.   Ed.  863,  31   S.   Ct.  669. 

620-19b.  Why  geographical  names  can 
not  be  appropriated  as  trademarks. — Bag- 
lin f.  Cusenier  Co..  221  U.  S.  580.  55  L. 
Ed.  86:5,  31   S.   Ct.  669. 

622-33.  What  essential  to  constitute 
abandonment. — "There  must  be  found  an 
intent  to  abandon,  or  the  property  is  not 
lost;  and  while,  of  course,  as  in  other 
cases,  intent  may  be  inferred  when  the 
facts  are  shown,  yet  the  facts  must  be 
adequate  to  support  the  finding."  Baglin 
7'.  Cusenier  Co.,  221  U.  S.  580,  55  L.  Ed. 
863,   31    S.   Ct.   669. 

"Abandonment  in  industrial  property  is 
an  act  by  which  the  public  domain  origi- 
nally enters  or  re-enters  into  the  posses- 


sion of  the  thing  (commercial  name, 
mark,  or  sign)  by  the  will  of  the  legiti- 
mate owner.  The  essential  condition  to 
constitute  abandonment  is,  that  the  one 
having  a  right  should  consent  to  the  dis- 
possession. Outside  of  this,  there  can  be 
no  dedication  of  the  right,  because  there 
can  not  be  abandonment  in  the  juridical 
sense  of  the  word."  De  Maragy's  Inter- 
national Dictionary  of  Industrial  Prop- 
erty, quoted  in  Baglin  v.  Cusenier  Co.,  221 
U.   S.  580,  55  L.   Ed.  863,  31   S.   Ct.  669. 

622-34a.  Loss  by  abandonment  not  a 
penalty  either  for  nonuser  or  for  creation 
of  new  devices. — Baglin  v.  Cusenier  Co., 
221   U.   S.  580,  55   L.   Ed.  863,  31   S.   Ct.  669. 

The  adoption  by  the  Carthusian  monks 
after  their  expulsion  from  France  and  re- 
moval to  Spain,  of  a  new  designation  for 
the  liqueur  manufactured  by  them  accord- 
ing to  a  secret  process  is  not  such  an 
a1)andonment  of  their  old  marks  as  v^^ill 
preclude  relief  against  infringement  in  the 
United  States  by  the  French  liquidator  of 
their  properties,  or  those  claiming  under 
him,  where  such  change  was  made  in  or- 
der to  save  the  French  market  for  their 
product,  and  they  have  continuously  as- 
serted their  rights  against  infringers. 
Baglin  v.  Cusenier  Co.,  221  U.  S.  580,  55 
L.  Ed.  863,  31  S.  Ct.  669,  reversing  decree 
164  F.  25,  90  C.  C.  A.  499. 

623-40.  Essence  of  wrong  in  imitating 
trademark.— Standard  Paint  Co.  7'.  Trini- 
dad, etc.,  Mfg.  Co..  220  U.  S.  446,  453.  55 
L.   Ed.  536,  31   S.  Ct.  456. 

624-48a.  Acquisition  by  purchase  of 
right  to  use  tradename — Injunction. — 
Herring-Hall-Marvin  Safe  Co.  r.  Hall's 
Safe  Co.,  208  U.  S.  554,  52  L.  Ed.  616,  28 
S.  Ct.  350,  modifying  146  Fed.  Rep.  37. 
76  C.  C.  A.  495. 

The  purchaser  of  all  the  property  and  as- 
sets as  a  going  concern,  together  with  the 
business,  good  will,  and  trade  rights  of  a 
safe  and  lock  manufacturing  company 
which  was  to  wind  up  its  afi^airs,  has  the 
right  to  use  the  surname  of  the  founder, 
where  that  name  had  acquired  a  commer- 
cial  value,  and   to  be  protected   by  an   in- 


1205 


624-626 


TRADEMARKS,  TRADENAMES',  ETC. 


Vol.  XL 


Presumptions  and  Burden  of  Proof. — The  burden  rests  upon  defendant 
when  sued  for  an  unfair  use  of  the  plaintiff's  tradename  to  justify  his  use  of  it.'*^" 
Conceding  the  burden  of  proof  to  rest  upon  the  manufacturer  of  a  medicine  un- 
der a  secret  formula,  when  suing  to  restrain  the  use  of  his  tradename  by  an  al- 
leged infringer,  to  show  that  the  latter's  medicine  is  not  made  by  his  formula, 
there  is  at  least  a  prima  facie  presumption  of  a  difference  between  the  two  for- 
mulas.^^'^ 

III.  Unfair  Competition. 

B.  In  General. — The  manufacturer  of  particular  goods  is  entitled  to  protec- 
tion of  the  reputation  they  have  acquired  against  unfair  dealing,  whether  there 
be  a  technical  trademark  or  not;  but  the  essence  of  such  a  wrong  consists  in  the 
sale  of  the  goods  of  one  manufacturer  or  vendor  for  those  of  another.^*^^ 

Use  of  Trademark  and  Failure  to  Distinguish  Product. — The  French 
liquidator  of  the  properties  of  the  Carthusian  monks  of  the  2^Ionastery  of  La 
Grande  Chartreuse,  or  those  claiming  under  him,  may  not  use  the  word  "Char- 
treuse," the  monks'  trademark  for  a  liqueur  made  and  sold  by  them  in  connec- 
tion with  the  sale  in  the  United  States  of  a  liqueur  not  made  by  the  monks,  as 
the  name  of,  or  as  descriptive  of,  the  liqueur,  or  without  clearly  distinguishing 
it  from  the  monks'  product.^-*'' 

Using  the  name  of  a  manufacturer  of  pills  under  a  secret  formula  upon 
pills  made  by  a  competitor  is  not  saved  from  being  unfair  because  it  is  accom- 
panied by  a  statement  that  the  latter  makes  the  pills,  even  if  it  be  conceded  that 
he  is  using  the  other's  formula. s^"" 


junction  against  a  rival  safe-making  cor- 
poration organized  by  the  sons  of  the 
founder,  who  were  members  of  the  origi- 
nal corporation,  forbidding  the  use  of  the 
surname  of  such  founder,  either  alone  or 
in  combination,  in  the  corporate  name,  on 
safes,  or  in  advertisements,  unless  ac- 
companied by  information  that  the  cor- 
poration is  not  the  original  corporation 
or  its  successor,  or  that  the  article  is  not 
the  product  of  such  original  company  or 
its  successor.  Judgment,  Hall's  Safe  Co. 
V.  Herring-Hall-Marvin  Safe  Co.  (1906) 
146  F.  37,  76  C.  C.  A.  495,  modified.  Her- 
ring-Hall-Marvin Safe  Co.  V.  Hall's  Safe 
Co.,  208  U.  S.  554,  52  L.  Ed.  616,  28  S.  Ct. 
350.  See  also,  Donnell  v.  Herring-Hall- 
Marvin  Safe  Co.,  208  U.  S.  267,  52  L.  Ed. 
481,  28  S.  Ct.  288,  reversing  143  Fed.  Rep. 
231,  74  C.  C.  A.  361. 

But  such  purchaser  can  not  have  an  in- 
junction totally  restraining  the  use  of  the 
founders  surname,  thus  interfering  with 
the  right  of  the  founder's  sons  to  continue 
in  the  safe  business  and  use  their  own 
name  in  so  doing,  after  being  released 
from  their  contract  obligation  not  to  en- 
gage in  any  competing  business  east  of 
the  Mississippi  river  for  a  limited  time. 
Judgment,  Hall  Safe  &  Lock  Co.  v.  Her- 
ring-Hall-Marvin Safe  Co.  (1906)  143  F. 
231,  74  C.  C.  .\.  361,  reversed.  Donnell  7-. 
Herring-Hall-Marvin  Safe  Co..  208  U.  S. 
267,  52  L.  Ed.  481,  28  S.  Ct.  288. 

624-48b.  Burden  upon  defendant  to  jus- 
tify use  of  tradename. — Jacobs  v.  Beecham, 
221    U.    S.    362,    55    L.    Ed.    729,    31    S.    Ct. 


555,  affirming  159  Fed.  Rep.  129,  86  C.  C. 
A.  623. 

624-48C.  Suit  by  manufacturer  of  medi- 
cine under  a  secret  formula, — Jacobs  v. 
Beecham,  221  U.  S.  263,  55  L.  Ed.  729,  31 
S.  Ct.  555,  affirming  159  Fed.  Rep.  129,  86 
C.  C.  A.  623. 

625-50a.  Protection  against  unfair  deal- 
ing— Essence  of  wrong. — Standard  Paint 
Co.  V.  Trinidad,  etc.,  Mfg.  Co.,  220  U.  S. 
440,  55  L.  Ed.  536,  31  S.  Ct.  456. 

A  manufacturer  of  roofing  under  the 
name  of  "Ruberoid"  does  not  make  out  a 
case  of  unfair  competition  against  another 
manufacturer  of  roofing  using  the  word 
"Rubbero"  to  designate  its  product,  where 
the  only  imitation  by  the  latter  of  the 
former's  goods  lies  in  the  similarity  of 
names,  since  to  grant  equitable  relief  in 
such  case  would  be  to  give  the  full  effect 
of  a  trademark  to  a  word  which  can  not 
be  appropriated  as  such.  Standard  Paint 
Co.  V.  Trinidad,  etc.,  Mfg.  Co.,  220  U.  S. 
446,  55  L.  Ed.  536,  31  S.  Ct.  456,  affirming 
decree  (1908)  Trinidad  Asphalt  Mfg.  Co. 
V.  Standard  Paint  Co.,  163  F.  977,  90  C.  C. 
A.  195. 

626-54a.  Use  of  trademark  and  failure 
to  distinguish  product. — Baglin  v.  Cusen- 
ier  Co.,  221  U.  S.  580,  55  L.^Ed.  863.  31  S. 
Ct.  669,  reversing  164  Fed.  Rep.  25,  90  C. 
C.  A.  499. 

626-54b.  Using  name  of  manufacturer 
of  pills  under  a  secret  formula. — Jacobs  v. 
Reerham.  221  U.  S.  263,  55  L.  Ed.  729,  31 
S.  Ct.  555.  affirming  159  Fed.  Rep.  129,  86 
C.  C.  A.  623. 


1206 


Vol.  XI. 


TREASON 


626-627 


What  Constitutes  Such  Fraud  as  Will  Preclude  Relief  against  Unfair 
Competition. — The  use  of  the  word  "patent"  to  indicate  a  medicine  made  by 
a  secret  formula,  when  the  medicine  is  in  fact  not  patented,  is  not  such  fraud  as 
defeats  the  right  of  the  manufacturer  to  relief  in  equity  against  unfair  competi- 
tion.^-"'  Xor  will  the  continued  use  of  circulars  and  labels  which  suggest  the 
foreign  origin  of  a  product,  after  its  manufacture  had  been  begun  in  this  country, 
and  the  use  of  the  name  of  the  original  proprietor  for  some  time  after  the  busi- 
ness had  been  transferred  to  his  son,  defeat  the  right  of  a  manufacturer  to  such 
rehef.^^*^ 

TRADE  RIGHTS.— See  note  a. 

TRADING  STAMPS.— See  ante.  Due  Process  of  Law,  p.  475. 

TRAFFIC  CONTRACTS.— See  ante,  Railroads,  p.  1046. 

TRANSCRIPT.— See  ante.  Appeal  and  Error,  p.  34;  Documentary  Evi- 
dence, p.  469. 

TRANSFER. — As  to  what  constitutes  a  transfer  by  a  bankrupt  with  intent 
to  hinder,  delay  or  defraud  creditors,  see  ante.  Bankruptcy,  p.  168. 

TRANSFER  TAX.— See  ante.  Succession  Taxes,  p.  1149. 

TRANSITORY  ACTION.— See  ante.  Actions,  p.  7;   post,  Venue. 

TRANSPORT— TRANSPORTATION.— See  note  3. 

TREASON.— See  the  title  Treason,  vol.  11,  p.  628,  and  references  there  given. 
As  to  the  terms  "treason,  felony,  and  breach  of  the  peace,"  as  used  in  the  con- 
stitutional provision  exempting  senators  and  representatives  from  arrest,  see 
ante.  Privilege,  p.  1006. 


626-54C.  Facts  that  will  not  preclude  re- 
lief.—  Jacobs  c'.  Beecham.  221  U.  S.  263, 
55  L.  Ed.  729,  31  S.  Ct.  555. 

626-54d.  Jacobs  v.  Beecham,  221  U.  S. 
263,  55  Iv.  Ed.  729,  31  S.  Ct.  555. 

626-a.  Trade  rights  as  used  in  a  convey- 
ance.— Although  in  the  purchase  of  all  the 
property  and  assets  of  a  going  concern, 
tradenames  were  not  mentioned  in  the 
deed,  its  language  was  broad  enough  to 
include  them,  where  the  deed,  along  with 
the  plant,  patterns,  stock  of  safes,  ac- 
counts, papers,  etc.,  conveys  all  "trade- 
marks, patent  rights,  trade  rights,  good 
will,  and  all  its  property  and  assets  of 
every  name  and  nature,"  and  agrees  that 
the  business  is,  "taken  over  in  all  re- 
spects as  a  going  concern."  If  a  particu- 
lar phrase  is  needed  in  addition  to  the 
general  language  and  the  nature  of  the 
transaction,  trade  rights  will  do  well 
enough.  Herring-Hall-Marvin  Safe  Co. 
V.  Hall's  Safe  Co..  208  U.  S.  554.  557,  52 
L.  Ed.  616,  28  S.  Ct.  350.  See  ante, 
TRADE^IARKS,  TRADENAMES  AND 
UNFAIR  COMPETITION,  p.  120.3. 

627-3.  The  term  "transportation"  as 
used  in  the  Interstate  Commerce  Act,  in- 
cludes all  instrumentalities  of  shipment 
or  carriaije.  See  ante.  INTERSTATE 
AND  FOREIGN  COMMERCE,  p.  689. 

The  Elkins  Act  provides  that  it  shall  be 
unlawful  for  persons,  or  corporations  to 
offer,  or  give,  or  to  solicit,  accept  or  re- 
ceive rebates,  concessions  or  discrimina- 
tions in  respect  of  the  transportation  of 
property  in  interstate  or  foreign  com- 
merce l)y  common  carriers,  "whereby  any 


such  property  shall  by  any  device  what- 
ever be  transported  at  a  less  rate  than 
that  named  in  tariffs  published  and  filed 
by  such  carriers  as  is  required  by  said 
act."  Counsel  contended  that  the  lan- 
guage of  this  statute  addressed  itself  to 
the  future,  and  asked  the  application  of 
the  well-known  rule  that  statutes  are  pre- 
sumed to  be  prospective  in  their  opera- 
tion, and  contended  that  this  act  has  no 
reference  to  property  transported  in  in- 
terstate commerce  at  less  than  the  pub- 
lished rates  at  any  time  before  the  act 
went  into  effect.  The  court  said:  "Read- 
ing the  latter  part  of  the  sentence, 
'whereby  any  such  property  shall  by  any 
device  whatever  be  transported  at  a  less 
rate,  etc.,'  the  act  would  seem  to  have 
reference  to  future  transportations  only. 
But  in  an  earlier  part  of  the  same  sen- 
tence it  has  been  provided  that  it  shall 
be  unlawful  to  offer,  grant,  or  give,  to 
solicit,  accept  or  receive  any  debate  in 
respect  to  property  in  interstate  com- 
merce transportation  'whereby  any  such 
propert}'  shall  be  transported  ar  a  less 
rate  tlian  that  named  in  the  tariffs,'  etc. 
Taking  the  sentence  altogether  it  is  ap- 
parent that  its  purpose  is  to  punish  the 
giving  of  a  rebate,  in  respect  of  transpor- 
tation of  property  in  interstate  commerce, 
which  shall  have  tlie  effect  to  give  or  re- 
ceive such  transportation  at  less  than  the 
published  rates."  New  York,  etc.,  R.  Co. 
v.  United  States.  212  U.  S.  500,  504,  53  L. 
Ed.  624.  29  S.  Ct.  309.  See  ante,  INTER- 
STATE AND  FOREIGN  COMMERCE, 
p.    689. 


1207 


636-639  TREATIES.  Vol.  XI. 


TREATIES. 

I.  Definition,  1208. 
II.  Treaty-Making  Power,  1208. 
B.  Of  United  States,  1208. 

2.  In  \N\\om  \'ested,   1208. 
• 
VII.  Modification  and  Abrogation,   1208. 

B.  By  Subsequent  Statute,   1208. 

VIII.  Construction,   1209. 

D.  Construed  Liberally,  1209. 
K.  Aids  to  Construction,  1209. 

2.  Surt-ounding  Facts  and  Circumstances,   1209. 

5.  Statutes,  1209. 

L.  Construction  of   Particular  Words,  Phrases  and  Clauses,   1209. 
1.  In  General,  1209. 

3.  ]\Iost  Favored  Nation  Clause,   1209. 
M.  Construction  of  Particular  Treaties,   1209. 

3.  Treaties  of  Cession,  1209. 

c.  Rights  of  Individuals,   1209. 

(2)   As  to  Grantee  Nation,   1209. 

4.  Treaties  with  Indians,  1209. 

6.  Extradition  Treaties,  1209. 

IX.  Enforcement,   1210. 

A.  Executory   Provisions,   1210. 

X.  Operation  and  Effect,  1210. 

A.  As  Law,   1210. 

C.  Of  Treaties  with  Indians,  1210. 

CROSS  REFERENCES. 

See  the  title  Treaties,  vol.  11,  p.  635,  and  references  there  given. 

In  addition,  see  ante,  Aliens,  p.  18;  Executors  and  Administrators,  p.  564; 
Extradition,  p.  571;  Indians,  p.  641;  Statutes,  p.  1122. 

As  to  right  of  aliens  to  sue  in  the  absence  of  treaty,  see  ante,  Auens,  p.  18. 
As  to  citizenship  of  a  corporation  created  by  Spain  and  Portugal  under  the  treaty 
of  Paris,  see  ante,  Corporations,  p.  381.  As  to  the  right  to  practice  law  in  the 
Philippine  Islands  in  the  treaty  of  Paris,  see  ante.  Attorney  and  Client,  p.  158. 

I.  Definition. 

See  note  1. 

II.   Treaty- Making  Power. 
B.  Of  United  States— 2.  In  Whom  Vested. — See  note  9. 

VII.  Modification  and  Abrogation. 
B.  By  Subsequent  Statute. — See  note  27. 

636-L      Definition.— lAltman     &     Co.     v.       894,  32  S    Ct    593 

Fo"ij' r?^^-o'^''  ^""^  ^-  ^"^^  ^•^■^'  ''^  ^-  ^^-  ^■^^'  639-27.   Subsequent  statute.-Sanchez  v. 

"'"'eo;^    T^"      u               .J       M              o    r^  United  States,  216  U.  S.  167,  54  L.  Ed.  432, 

637-9.  In  whom  vested.— Ahman  &  Co.  qq  S    Ct    ■^ri 

V.    United  States,  224   U.   S.  583,  56  L.   Ed. 

1208 


Vol.  XL  TRBATIES.  641-644 

VIII.   Construction. 
D.  Construed  Liberally. — See  note  44. 

K.  Aids  to  Construction — 2.  Surrounding  Facts  and  Circumstances. — 

See  note  55. 

5.  Statutes. — See  note  58. 

L.  Construction  of  Particular  Words,  Phrases  and  Clauses — 1.  In 
General. — The  words  "such  laws  as  are  applicable  to  other  foreigners'"  in  the 
treaty  of  Paris  refer  not  to  the  Spanish  law  but  to  the  laws  enacted  by  the  new- 
sovereignty.*'^''  The  words  "protection  and  security  for  their  persons  and  prop- 
erty" in  the  treaty  between  the  United  States  and  Italy  can  not  be  construed  as 
entitling  a  citizen  of  Italy  to  the  right  of  maintaining  an  action  for  death  by 
wrongful  act  of  a  kinsman  killed  in  this  country .'^^^ 

3.  Most  Favored  Nation  Clause. — The  right  of  citizens  of  Prussia  under  the 
treaty  of  Alay  1,  1828,  to  attend  to  their  affairs  in  the  United  States,  and  for  that 
purpose  to  enjoy  the  same  security  and  protection  as  natives  in  the  country 
wherein  they  reside,  is  not  violated  by  the  refusal  of  a  state  court,  on  grounds  of 
public  policy,  to  apply  the  doctrine  of  comity  so  as  to  subject  by  attachment,  to 
the  payment  of  an  indebtedness  due  a  German  corporation  from  a  German  sub- 
ject, a  fund  within  the  state  to  which  one  of  its  own  citizens  asserts  a  claim,  where 
the  effect  of  judgment  in  favor  of  the  corporation  would  be  to  remove  the  fund 
to  a  foreign  country,  there  to  be  administered  in  favor  of  the  foreign  creditors.*'^^ 

M.  Construction  of  Particular  Treaties — 3.  Treaties  of  Cession — c. 
Rights  of  huiividnals — (2)  As  to  Grantee  Xation. — The  provisions  of  the  treaty 
with  Spain,  i)rotecting  private  rights  of  property,  have  no  reference  to  public  or 
quasi  public  stations,  the  functions  and  duties  of  which  it  is  the  province  of  gov- 
ernment to  regulate  or  control  for  the  welfare  of  the  people,  even  where  the  in- 
cumbents of  such  stations  are  permitted,  while  in  the  discharge  of  their  duties, 
to  earn  and  receive  emoluments  or  fees  for  services  rendered  by  them.^^^  The 
right  to  practice  law  was  not  embraced  in  the  provision  of  the  treaty  of  peace  with 
Spain,  that  the  cession  of  sovereignty  can  not,  in  any  respect,  impair  the  property 
rights  which,  by  law,  belong  to  the  peaceful  possession  of  property  of  all  kinds.* ^'' 

4.  Treaties  with  Indians. — See  note  82. 

6.  Extradition  Treaties. — See  ante.  Extradition,  p.  571. 

641-44.     Construed    liberally. — Rocca    v.  office    of    solicitor    oi    tlie    courts    of    first 

Thompson,   22o   U.    S.   :J17,   o6   L.   Ed.   4.53,  instance  of  the  capital  of  Porto  Rico,  law- 

32  S.  Ct.  207.  fully    purchased    in    perpetuity,    prior    to 

642-55.    Surrounding    facts,    etc.— Rocca  the  occupancy  of  Porto  Rico  b)'  the  mili- 

V.  Thompson,  223  U.  S.  317,  56  L.  Ed.  453,  tary  authorities  of  the  United  States,  and 

32   S.   Ct.  207.  the   cession   of   that   island   to   the   United 

642-58.     Statutes. — See  ante,  INDIANS,  .States.       Judgment.     Sanches     i\     United 

p.  641.  States     (1907),    42     Ct.     CI.    458,    affirmed. 

642-61a.   Particular   words    and   phrases.  Sanchez  v.  United  States,  216  U.  S.  167,  .54 

—Bosque   :•.   United   States,   209    U.    S.   91.  L.  Ed.  432,  30  S.  Ct.  361. 

52  L.  Ed.  698,  29  S.  Ct.  501.  644-81b.    Right    to    practice    law.— Laws 

642-61b.     Protection  and  security. — Ma-  enacted  by  the   new  sovereignty,   and   not 

iorano  v.   Baltimore,   etc.,   R.    Co.,   213   U.  the  Spanish  laws,  were  meant  by  the  pro- 

S.  268,  53   L.   Ed.  792.  29   S.   Ct.  424.     See  vision   of  the   treaty   of  peace   with    Spain 

ante,    DEATH    BY    WRONGFUL    ACT.  of  December  10,   1898   (30  Stat.    17.59,  art. 

p.  456.  9),  that  Spanish  subjects  in  the  Philippine 

643-64a.   Most   favored   nation   clause. —  Islands   shall   liave   the   right  to  carry  on 

Disconto   Gesellschaft   v.   Uml)reit,   208    U.  tlieir     industry,     commerce,     and     protes- 

S.  570,  52  L.  Ed.  625.  28  S.  Ct.  337.  sions,  l)eing  subject   in   respect  thereof  to 

644-81a.    Treaty    of    cession.— The    pro-  "such  laws  as  are  applicable  to  other  for- 

tection  accorded  to  the  prooerty  or  rights  eigners."      Bosque    v.    United^  States.    209 

of    private    individuals    l)y    the    treaty    of  U.  S.  91,  52  L.  Ed.  698.  2S  h.  Ct.  501. 

peace  with   Spain   (Act  Dec.   10,  1898,  art.  644-82.    Treaties  with  Indians.— See  ante, 

8   f30  Stat.   1758 1)   does  not  extend  to  the  IXDI.XNS,  p.  641. 

1209 


646-647 


TREATY  FUND. 


Vol.  XL 


IX.  Enforcement. 
A.  Executory  Provisions. — See  note  89. 

X.  Operation  and  Effect. 

A.  As  Law. — See  note  93. 

C.  Of  Treaties  with  Indians. — See  ante,  Indians,  p.  641.  A  commercial 
agreement  between  the  United  States  and  another  nation,  made  under  authority 
of  the  Tariff  Act  of  1897,  while  not  a  treaty  possessing  a  dignity  of  one  requiring 
ratification  by  the  senate,  is  a  treaty  under  the  Circuit  Court  of  Appeals  act  pro- 
viding for  a  direct  appeal  to  the  supreme  court.'^'^^ 

TREATY  FUND.— See  note  a. 


646-89.     Enforcement     of     treaties. — A 

treaty  by  the  express  words  of  the  con- 
stitutioji,  is  the  supreme  law  of  the  land, 
binding  alike  national  and  state  courts, 
and  is  capable  of  enforcement,  and  must 
be  enforced  by  them  in  the  litigation  of 
private  rights.  Maiorano  v.  Baltimore, 
etc.,  R.  Co.,  213  U.  S.  268,  273,  53  L.  Ed. 
792,  29  S.  Ct.  424;  United  States  v.  Raus- 
cher,  119  U.  S.  407.  418.  30  L.  Ed.  425.  7 
S.  Ct.  234. 

646-93.  Operation  and  effect  as  law. — 
Altman  &  Co.  v.  United  States,  224  U.  S. 
583,  56  L.  Ed.  894,  32  S.  Ct.  593;  Sanchez 
V.  United  States,  216  U.  S.  167,  54  L.  Ed. 
432.  30  S.  Ct.  361. 

647-97a.  Effect  of  Indian  treaty.— The 
commercial  reciprocal  agreement  with 
France,  negotiated  under  the  authority 
contained  in  the  Tariff  Act  of  1897  (30 
Stat,  at  L.  151,  chap.  11,  U.  S.  Comp.  Stat. 
1901,  p.  1626),  §  3,  to  make  reciprocal 
agreements  with  reference  to  certain 
specified  articles,  is  a  treaty  within  the 
meaning  of  the  Act  of  March  3.  1891.  §  5, 
giving  a  direct  appeal  from  a  federal  cir- 
cuit court  to  the  supreme  court  in  cases 
where  the  validity  or  construction  of  any 
treaty  made  under  the  authority  of  the 
United  States  is  drawn  in  question.  Alt- 
man  &  Co.  V.  United  States,  224  U.  S.  583, 
.56  L.  Ed.  894,  32  S.  Ct.  593. 

647-a.  Treaty  fund. — The  gratuitous 
appropriation  of  public  moneys  for  the 
purpose  of  Indian  education  has  always 
been  made  under  the  heading  "Support 
of  Schools,"'  whilst  the  appropriation  of 
the  Treaty  Fund  has  always  been  under 
the  heading  "Fulfilling  Treaty  Stipula- 
tions and  Support  of  Indian  Tribes," 
and  that  from  the  "Trust  Fund"  is  not 
in  the  Indian  Appropriation  Acts  at  all. 
One  class  of  appropriations  relates  to 
public  money  belonging  to  the  govern- 
ment; the  other  to  moneys  which  belong 
to  the  Indians  and  which  is  administered 
for  them  by  the  government.  In  con- 
sideration of  cessions  of  land  by  the 
Sioux  Indians  in  1868  and  1877,  the 
United  States  agreed  to  furnish  teachers 
and  all  necessarj^  aid  to  assist  the  In- 
dians in   the  work  of  civilization  and  fur- 


nish them  schools  and  instruction  in  me- 
chanical and  agricultural  arts.  In  1889 
congress  extended  the  obligation  of  the 
treaty  of  1877  for  twenty  years,  subject 
to  such  modifications  as  congress  should 
deem  most  effective,  to  secure  the  In- 
dians equivalent  benefits  of  such  educa- 
tion. Thereafter,  in  every  annual  Indian 
Appropriation  Act,  there  v/as  an  appro- 
priation to  carry  out  the  terms  of  this 
treaty,  under  the  heading  "Fulfilling 
Treat}'  Stipulations  and  Support  of  In- 
dian Tribes.''  These  appropriations  rested 
on  different  grounds  from  the  gratuitous 
appropriations  of  public  moneys  under 
the  heading  "Support  of  Schools."  The 
two  subjects  were  separately  treated  in 
each  act,  and,  naturally,  as  they  are  es- 
sentially different  in  character.  One  is 
the  gratuitous  appropriation  of  public 
moneys  for  the  purpose  of  Indian  educa- 
tion, but  the  Treaty  Fund  is  not  public 
money  in  this  sense.  It  is  the  Indians' 
money,  or  at  least  is. dealt  with  by  the 
government  as  if  it  belonged  to  them,  as 
morally  it  does.  It  differs  from  the 
"Trust  Fund"  in  this:  The  "Trust 
Fund"  has  been  set  aside  for  the  Indians 
and  the  income  expended  for  their  bene- 
fit, which  expenditure  required  no  annual 
appropriation.  The  whole  amount  due 
the  Indians  for  certain  land  cessions  v/as 
appropriated  in  one  lump  sum  of  the  Act 
of  1889.  25  Stat.  888.  chap.  405.  This 
"Trust  Fimd"  is  held  for  the  Indians  and 
not  distributed  per  capita,  being  held  as 
property  in  common.  The  monej"-  is  dis- 
tributed in  accordance  with  the  discre- 
tion of  the  secretary  of  the  interior,  but 
really  belongs  to  the  Indians.  The 
Treaty  Fund  is  moneys  belonging  really 
to  the  Indians;  the  price  of  land  ceded 
by  the  Indians  to  the  government.  The 
only  difference  is  that  in  the  Treaty 
Fund  the  debt  to  the  Indians  created  and 
secured  by  the  treaty  is  paid  by  annual 
appropriations.  They  are  not  gratuitous 
appropriations  of  public  monej'S,  but  the 
pavment  of  a  treaty  debt  in  installments. 
Quick  Bear  v.  Leupp,  210  U.  S.  50,  77,  52 
L.  Ed.  954,  2S  S.  Ct.  690.  See  ante,  IN- 
DIANS, p.  641;  PUBLIC  LANDS,  p. 
1012;    TREATIES,   p.   1208. 


1210 


Vol.  XI.  TRIBAL  PROPERTY.  648-667 


TREES  AND  TIMBER. 

CROSS  REFERENCES. 

See  the  title  Trees  and  Timber,  vol.  11,  p.  648,  and  references  there  given. 

As  to  double  damages  and  fine  or  imprisonment  for  cutting  timber  on  state 
lands,  see  ante,  Autreeois,  Acquit  and  Convict,  p.  161 ;  Due  Process *of  Law, 
p.  475 ;  Police  Power,  p.  955.  As  to  sales  of  timber  by  Indians,  see  ante,  In- 
dians, p.  641.  As  to  the  right  to  cut  timber  from  the  public  domain,  see  ante, 
Mines  and  Minerals,  p.  865 ;  Public  Lands,  p.  1012. 

Injunction  to  Protect  Timber. — Equity  may  intervene  by  injunction  to 
prevent  the  wrongful  boxing  and  cutting  of  timber  valuable  for  turpentine 
purposes,  since  the  remedy  at  law  in  damages  is  of  doubtful  adequacy.^* 

TRESPASS.— See  the  title  Trespass,  vol.  11,  p.  649,  and  references  there 
given. 

TRESPASSERS.— See  ante.  Carriers,  p.  216;    Negligence,  p.  920. 

TRESPASS  TO  TRY  TITLE.— See  the  title  Trespass  to  Try  Title,  vol.  11, 
p.  664,  and  references  there  given. 


TRIAL 

CROSS  REFERENCES. 

See  the  title  Trial,  vol.   11,  p.  667,  and  references  there  given. 

In  addition,  see  ante.  Appeal  and  Error,  p.  34. 

As  to  trial  in  particular  actions  or  proceedings,  see  the  particular  titles.  As 
to  trial  in  criminal  proceedings,  see  ante,  Criminal  Law,  p.  434,  and  the  spe- 
cific criminal  titles.  As  to  trial  by  jury,  see  ante,  Jury,  p.  813.  As  to  pleading, 
see  ante.  Pleading,  p.  953,  and  the  cross  references  there  given.  As  to  in- 
structions to  the  jury,  see  ante.  Instructions,  p.  672,  and  the  cross  references 
there  given.  As  to  verdicts,  see  post,  Verdict,  and  the  cross  references  there 
given.  As  to  judgments  and  decrees,  see  ante,  Judgments  and  Decrees,  p. 
807,  and  the  cross  references  there  given. 

Trial  Defined. — "Trial  is  a  common-law  term,  and  is  commonly  used  to 
denote  that  step  in  an  action  by  which  issues  or  questions  of  fact  are  decided." 
But  the  word  has  often  a  broader  significance,  as  referring  to.  that  final  exami- 
nation and  decision  of  matter  of  law  as  well  as  fact,  for  which  every  antecedent 
step  is  a  preparation,  which  is  commonly  denominated  "the  trial. ""^^ 

TRIAL  BY  JURY.— See  ante,  Jury,  p.  813. 
TRIAL  DE  NOVO.— See  ante,  Appeal  and  Error,  p.  34. 
TRIBAL  CITIZENSHIP.— See  ante,  Indians,  p.  641. 
TRIBAL  GOVERNMENT.— See  ante,  Indians,  p.  641. 
TRIBAL  PROPERTY.— See  ante,  Indians,  p.  641. 

648-5a.    Injunction   to   protect  timber.—  JUNCTIONS,  p.  G")-. 
Graves   v.   Ashl)urn.   :21.5   U.   S.   331,   54   L.  667-3a.      Trial      defined.— Carpenter      v. 

Ed    217.  30  S.   Ct-.  108,  reversing-  149  Fed.  Winn,  221  U.  S.  533,  538,  55  L.  Ed.  842,  31 

Rep.  968,  79  C.  C.  A.  478.     See   ante,   IN-  S.  Ct.  683. 

1211 


673  TRUSTS  AND  TRUSTEES.  Vol.  XL 

TROVER  AND  CONVERSION. 

V.  Pleading  and  Practice,  1212. 
F.  Damages,  1212. 

1.  Measure  and  Elements,  1212. 
a.  In  General,   1212. 

CROSS  REFERENCES. 

See  the  title  Trover  and  Conversion,  vol.  11,  p.  669,  and  references  there 
given. 

In  addition,  see  ante.  Banks  and  Banking,  p.  184. 

V.    Pleading  and  Practice. 

F.    Damages — 1.    Measure  and  Elements — a.    In  General. — See  note  35. 

TRUST  DEEDS. — See  ante.  Mortgages  and  Deeds  of  Trust,  p.  891. 
TRUSTEE.— See  post,  Trusts  and  Trustees. 


TRUSTS  AND  TRUSTEES. 

II.  Creation,   Classification  and  Validity,   1213. 
C.  Validity,  1213. 

6.  _  Incapacity  of  Trustee,   1213. 

III.  Trust  Estate,  1213. 

E.  Duration  and  Termination,  1213. 

5.  Rule  against  Perpetuities,  1213. 
J.  Sale,  Exchange  or  Mortgage  of  Trust  Property,  1213. 

2.  Persons  Who  May  Purchase,  1213. 
a.  Purchase  by  Trustee,  1213. 

(1)   Purchase  at  Trustee's  Own  Sale,  1213. 
K.  Following  Trust  Property,  1213. 

2.  In  Hands  of  Subsequent  Purchaser,   1213. 
L.  Distribution,  1214. 

1.  Accumulation  and   Income,   1214. 

IV.  Trustee,  1214. 

H.  Substitution,  Removal,  Resignation  and  Discharge  of  Trustees,   1214, 
1.  Power  to  Appoint  New  Trustee  upon  Failure  of  Suitable  Trustees. 
1214. 

a.  Power  of  Equity,  1214. 
J.  Administration  of  Trust,   1214. 

5.  Dealings  with  and  Use  of  Trust  Funds  or  Estate,  1214. 

b.  Use  for  Benefit  of  Trustee,  1214. 

(4)   Profits  by  Agent  in  Execution  of  His  Agency,  1214. 

VI.  Remedies,  1214. 

B.   Suits  against  Trustee  or  Trust  Property,   1214. 

1.  Suits  for  Establishment,  Preservation  and  Enforcement  of  Trust. 
1214. 
e.  Bill  or  Complaint,  1214. 

673-35.    Interest    is    expressly    made    by  311,  17  Okl.  344,   affirmed.     Drumm-Flato- 

St.  Okl.  1893,  §  2640,  a  part  of  the   detri-  Comm.    Co.   7'.    Edmission,   208   U.    S.   534. 

ment     caused   by   the    conversion   of   per-  52  L.  Ed.  606,  28  S.  Ct.  367. 
sonal    property.      Judgment    (1906)    87    P. 

1212 


Vol.  XL 


TRUSTS  AND  TRUSTEES. 


710-718 


CROSS  REFERENCES. 

See  the  title  Trusts  and  Trustees,  vol.  11,  p.  676,  and  references  there 
given. 

In  addition,  see  ante.  Municipal,  Corporations,  p.  895 ;  Principal  and 
Agent,  p.  1001. 

As  to  liability  of  trust  fund  in  hands  of  municipality  where  contract  not  made 
with  special  reference  to  such  fund,  see  ante.  Municipal  Corporations,  p.  805. 

II.  Creation,  Classification  and  Validity. 

C.  Validity — 6.  Incapacity  of  Trustee. — See  post,  "Power  of  Equity," 
IV,  H,  1,  a. 

III.    Trust  Estate. 

E.  Duration  and  Termination — 5.  Rule  against  Perpetuities. — See 
ante,  Perpetuities,  p.  948. 

J.  Sale,  Exchange  or  Mortgage  of  Trust  Property — 2.  Persons  Who 
May  Purchase — a.  Purchase  by  Trustee — (1)  Purchase  at  Trustee's  Own 
Sale.- — See  note  1. 

K.  Following  Trust  Property — 2.  In  Hands  of  Subsequent  Purchaser. 
— See  note  -14. 


710-1.  .Michoud  v.  Girod,  4  How.  502, 
505,  11  L.  Ed.  107G,  is  a  leading  case  ap- 
plying the  general  rule,  which  forbids  one 
to  buy  an  estate,  directly  or  indirectly, 
when  he  is  acting  for  the  seller.  United 
States  V.  Carter,  217  U.  S.  286,  54  L.  Ed. 
769,  30  S.  Ct.  515. 

In  Michoud  7'.  Girod,  4  How.  502,  555, 
11  L.  Ed.  1076,  referring  to  the  general 
rule,  which  forbids  one  to  buy  in  an  es- 
tate, directly  or  indirectly,  when  he  is 
acting  for  the  seller,  this  court  said: 
"The  general  rule  stands  upon  our  great 
moral  obligation  to  refrain  from  placing 
ourselves  in  relations  which  ordinarily  ex- 
cite a  conrtict  between  self-interest  and 
integrity.  It  restrains  all  agents,  public 
and  private;  but  the  value  of  the  prohibi- 
tion is  most  felt,  and  its  application  is 
more  frequent,  in  the  private  relations  in 
which  the  vendor  and  purchaser  may 
stand  towards  each  other.  The  disabil- 
ity to  purchase  is  a  consequence  of  that 
relation  between  them  which  imposes  on 
the  one  a  duty  to  protect  the  interest  of 
the  other,  from  the  faithful  discharge  of 
which  duty  his  own  personal  interest  may 
withdraw  him.  In  this  conflict  of  inter- 
est, the  law  wisely  interposes.  It  acts  not 
on  the  possibility  that,  in  soine  cases,  the 
sense  of  that  duty  may  prevail  over  the 
motives  of  self-interest,  but  it  provides 
against  the  probability  in  many  cases,  and' 
the  danger  in  all  cases,  that  the  dictates 
■of  self-interest  will  exercise  a  predomi- 
nant influence,  and  supersedes  that  of 
•duty.  It  therefore  prohibits  a  party  from 
purchasing  on  his  own  account  that  which 
his  duty  or  trust  requires  him  to  sell  on 
account  of  another,  and  from  purchasing 
on  account  of  another  that  which  he  sells 
on  his  own  account.  In  effect,  he  is  nnl 
allowed   to   unite    the    two   opposite    char- 


acters of  buyer  and  seller,  because  his  in- 
terests, when  he  is  the  seller  or  buyer  on 
his  own  account,  are  directly  conflicting 
with  those  of  the  person  on  whose  ac- 
count he  buys  or  sells."  United  States  v. 
Carter,  217  U.  S.  286,  54  L.  Ed.  769,  30  S. 
Ct.  515. 

"In  Robertson  v.  Chapman,  152  U.  S. 
673,  681,  38  L.  Ed.  592,  14  S.  Ct.  741,  this 
court,  in  dealing  with  the  matter  of  a  sale 
by  an  agent  to  himself,  effected  under 
cover  of  another,  said:  'If  an  agent  to 
sell  effects  a  sale  to  himself,  under  the 
cover  of  the  name  of  another  person,  he 
becomes,  in  respect  to  the  property,  a 
trustee  for  the  principal;  and,  at  the  elec- 
tion of  the  latter,  seasonably  made,  will 
be  compelled  to  surrender  it,  or,  if  he  has 
disposed  of  it  to  a  bona  fide  purchaser, 
to  account  not  only  for  its  real  value,  but 
for  any  profit  realized  by  him  on  such 
resale.  And  this  will  lie  done  upon  the 
demand  of  the  principal,  although  it  may 
not  appear  that  the  property,  at  the  time 
the  agent  fraudulently  acquired  it,  was 
worth  more  than  he  paid  for  it.  The  law 
will  not,  in  such  case,  impose  upon  the 
principal  the  burden  of  proving  that  he 
was,  in  fact,  injured,  and  will  only  in- 
quire whether  the  agent  has  been  unfaith- 
ful in  the  discharge  of  his  duty.  While 
his  agency  continues,  he  must  act  in  the 
matter  of  such  agency  solely  with  refer- 
ence to  the  interests  of  his  principal.  The 
law  will  not  permit  him,  without  the 
knowledge  or  assent  of  his  principal,  to 
occupy  a  position  in  which  he  will  be 
tempted  not  to  do  the  best  he  may  for 
the  principal.'  "  United  States  v.  Carter, 
217  U.  S.  286,  54  E.  Ed.  769,  30  S.  Ct.  515. 

718-44.  Persons  who,  with  full  knowl- 
edge of  the  facts,  have  received  the  securi- 
ties into  which  have  gone  the  illicit  gains 


]2i:; 


718-727 


TRUSTS  AND  TRUSTEES. 


Vol.  XL 


L.  Distribution — 1.  Accumulations  and  Income. — The  surplus  income 
after  paying  annuities  must  accumulate  as  part  of  the  trust  estate  until  the 
time  for  distribution  arrives,  when  it  must  be  distributed  to  those  entitled  to. 
the  main  fund,  where  the  trust  provides  that  the  trustee  is  to  devote  sufficient 
of  the  income  toward  paying  the  annuities,  and,  on  the  termination  of  the  trust, 
is  to  distribute  the  trust  fund  to  those  entitled  to  the  annuities.^"*^ 

IV.    Trustee. 

H.     Substitution,    Removal,    Resignation   and   Discharge   of   Trustees 

— 1.    Power  to  Appoint  New  Trustee  upon  Failure  of  Suitable  Trustees 
— a.    Pozver  of  Equity. — See  note  58. 

J.  Administration  of  Trust — 5.  Dealings  with  and  Use  of  Trust  Funds 
or  Estate — b.  Use  for  Benefit  of  Trustee — (4)  Profits  by  Agent  in  Execu- 
tion of  His  Agency. — Any  profit  made  by  an  agent  in  the  execution  of  his 
agency  must  be  accounted  for  to  the  principal  who  may  claim  it  as  a  debt 
for  money  received  to  his  use.  A  gratuity  given  to  an  agent  for  the  purpose 
of  influencing  the  execution  of  his  agency  vitiates  a  contract  subsequently  made 
by  him,  as  being  presumptively  made  under  that  influence,  and  a  gratuity  to 
an  agent  after  the  execution  of  his  agency  must  be  accounted  for  to  the  princi- 
p^]  92a  This  principle  is  most  often  applied  in  cases  where  one  holding  the 
relation  of  a  trustee  buys  the  trust  property,  though  at  public  sale.^-"^ 

VI.    Remedies. 

B.  Suits  against  Trustee  or  Trust  Property — 1.  Suits  for  Establish- 
ment, Preservation  and  Enforcement  of  Trust— e.  Bill  or  Complaint. — 
Personal  Judgment  under  Prayer  of  General  Relief. — The  United  States. 
seeking  to  follow  the  illicit  gains  of  its  agent  into  the  property  or  securities  into 


of  the  engineer  in  charge  of  a  public  im- 
provement, must  account  to  the  United 
States  for  the  securities  traced  to  their 
possession.  Decree  (1909),  172  F.  1,  96 
C.  C.  A.  587,  affirmed.  United  States  v. 
Carter,  217  U.  S.  286,  54  L.  Ed.  769,  30  S. 
Ct.   515. 

718-44a.  Fitchie  v.  Brown,  211  U.  S. 
321,  53   L.   Ed.   202.   29   S.    Ct.   106. 

720-58.  The  validity  of  a  trust  is  not 
affected  by  the  incapacity  of  the  trustee, 
since,  if  he  can  not  act,  the  court  will  ap- 
point a  new  trustee  to  carry  out  the 
provisions  of  the  trust.  Fitchie  v.  Brown, 
211    U.   S.  321.  53  L.  Ed.  202,  2i)  S.  Ct.  lOG. 

727-92a.  United  States  v.  Carter,  217 
U.  S.  286,  54  L.  Ed.  769.  30  S.   Ct.  515. 

"The  doctrine  is  well  established  and 
has  hcen  applied  in  many  relations  of 
agency  or  trust.  The  disability  results 
not  from  the  subject  matter,  but  from  the 
fiduciary  character  of  the  one  against 
whom  it  is  applied.  It  is  founded  on  rea- 
son and  the  nature  of  the  relation,  and 
is  of  paramount  importance.  'It  is  of 
no  moment,'  said  Lord  Thurlow,  in  The 
York  Bldgs.  Co.  v.  Mackenzie,  3  Paton, 
378,  'what  the  particular  name  or  descrip- 
tion, whether  of  character  or  office,  situa- 
tion or  position,  is,  on  which  the 
disability  attaches.'  Thus,  in  Aberdeen 
R.  Co.  r.  Blaikie  Bros..  1  Macq.  H  I, 
Cas.  461,  472.  it  was  applied  to  a  contract 
of   a    director    dealing    in    behalf     of      his 


company."  United  States  v.  Carter,  217 
U.   S.  2S6.  54  L.  Ed.  769,  30  S.   Ct.   515. 

Necessity  for  proof  of  fraud. — "It  is 
not  enough  for  one  occupying  a  confi- 
dential relation  to  another,  who  is  shown, 
to  have  secretly  received  a  benefit  from 
the  opposite  party,  to  say,  'You  can  not 
show  any  fraud,  or  you  can  not  show 
that  you  have  sustained  any  loss  by  my 
conduct.'  Such  an  agent  has  the  power 
to  conceal  his  fraud  and  hide  the  injury 
done  his  principal.  It  would  be  a  dan- 
gerous precedent  to  lay  down  as  law  that 
unless  some  affirmative  fraud  or  loss  can 
be  shown,  the  agent  may  hold  on  to  any 
secret  benefit  he  maj^  be  able  to  make 
out  of  his  agency.  The  larger  interests 
of  public  justice  will  not  tolerate,  under 
any  circumstances,  that  a  public  official 
shall  retain  any  profit  or  advantage 
which  he  may  realize  through  the  ac- 
quirement of  an  interest  in  conflict  with 
his  fidelitj^  as  an  agent.  If  he  takes  any 
.sift,  gratuity,  or  benefit  in  violation  of 
his  duty,  or  acquires  any  interest  adverse 
to  his  principal,  without  a  full  disclosure, 
it  is  a  betrayal  of  his  trust  and  a  breach 
of  confidence,  and  he  must  account  to  his 
principal  for  all  he  has  received."  United 
Statts  f.  Carter,  217  U.  S.  286.  54  L.  Ed. 
769.  30  S.  Ct.  515. 

727-92b.  United  States  v.  Carter,  217  U. 
S.  286.  54  L.  Ed.  769,  30  S.  Ct.  515.  See 
ante,  "Purchase  by  Trustee,"  III.   I.  2,  a. 


1214 


Vol.  XL  UNDER  RESTRAINT  OF  TRADE.  739-745 

which  they  have  gone,  is  entitled,  under  a  prayer  for  "other,  further,  and  general 
relief,"  to  a  judgment,  as  for  money  had  and  received  for  its  use,  for  any  dif- 
ference between  the  cost  of  the  specific  property  recovered  and  the  gains  which  it 
is  unable  to  trace.^^^ 


TURNPIKES  AND  TOLLROADS. 

CROSS  REFERENCES. 

See  the  title  Turnpikes  and  Tollroads,  vol.  11,  p.  741,  and  references  there 
given. 

In  addition,  see  ante.  Appeal  and  Error,  p.  34. 

As  to  suspending  collection  of  tolls  until  roads  shall  be  put  in  proper  repair, 
see  ante.  Due  Process  of  Lav^,  p.  475. 

Special    Charter    Conferring    Right    to    Take    Tolls    Construed. — See 

note  2. 

TWICE  IN  JEOPARDY.— See  ante.  Autrefois,  Acouit  and  Convict,  p. 
161. 

ULTRA  VIRES. — See  ante.  Banks  and  Banking,  p.  184;  Corporations, 
p.  381 ;    Quo  \\'arranto,  p.  1044. 

UNAVOIDABLE  ACCIDENT.— See  ante.  Negligence,  p.  920. 

UNDERWRITERS.— See  ante,  Insurance,  p.  674. 


UNDUE  INFLUENCE. 

CROSS  REFERENCES. 

See  the  title  Undue  Influence,  vol.  11,  p.  743,  and  references  there  given. 

As  to  assumption  by  the  supreme  court  of  the  United  States  as  to  what 
amounts  to  undue  influence  within  the  meaning  of  a  state  statute  permitting 
a  contract  to  be  set  aside  for  such  cause  see  ante.  Courts,  p.  398.  As  to  the 
eflFect  in  equity  of  charge  of  undue  influence,  see  ante.  Equity,  p.  550.  As  to 
setting  aside  conveyances  on  the  ground  of  undue  influence,  see  ante.  Rescis- 
sion, Cancellation  and  Reformation,  p.  1069.  As  to  the  efl^ect  upon  wills  of 
undue  influence  exercised  upon  the  testator,  see  post.  Wills. 

Necessity  of  Pleading.— That  undue  influence  was  not  expressly  pleaded 
in  defense  of  a  contract  does  not  preclude  instructions  defining  it,  if  facts 
are  pleaded  and  found  which  amount  to  it.^^^ 

UNDUE  RESTRAINT  OF  TRADE.— See  ante,  Monopolies  and  Corporate 
Trusts,  p.  874. 

739-55a.     United    States    v.    Carter,    217  of    the    public    after    twenty   years,    or    at 

U.  S.  286.  54  L.  Ed.  769,  30  S.  Ct.  ol.5.  any    time    thereafter:     there      bein.s:      no 

741-2.  Special  charter  conferring  right  reference  in  the  charter  to  the  general 
to  take  tolls  construed. — The  right  of  a  act.  Decree,  Stale  v.  Scott  County  Ma- 
toll  road  company  to  take  any  tolls  what-  cadamized  Road  Co.  (1907),  105  S.  VV. 
ever,  and  not  merely  the  right  given  by  752,  207  Mo.  54,  13  A.  &  E.  Ann.  Cas.  65.5, 
its  special  charter  to  take  higher  tolls  affirmed.  Scott  County,  etc.,  Road  Co. 
than  those  allowed  to  toll  road  companies  v.  Hines,  215  U.  S.  330,  54  L.  Ed.  221.  30 
organized    under    a    general    act    then    in  S.  Ct.  110. 

force,  expired  with  the  lapse  of  fifty  years  745-lla.    Instructions  defining  undue  in- 

from    the    date    of    such    special    charter,  fluence  proper,  though  it  is  not  expressly 

which  provided  that  the  privileges  therein  pleaded. — Snyder    7'.    Rosenluuim,    215    U. 

granted    should    continue    for    fifty    years.  S.   26],   54   L.    Ed.    186,   30   S.   Ct.   ^S. 
subject  to  a  right  of  purchase  on  behalf 

1215 


745  ^  UNITED  STATES.  Vol.  XI. 

UNFAIR— UNFAIRLY.— See  note  1. 

UNFAIR  COMPETITION. — See  ante,  Trademarks,  Tradenames  and  Un- 
fair Competition,  p.  1203. 

UNIFORM  TAXATION.— See  ante,  Taxation,  p.  1156. 
UNION.— See  note  2a. 


UNITED  STATES. 

III.  Powers,  Prerogatives  and  Liabilities,   1217. 

B.  Prerogatives  and  Immunities,   1217. 

2.  Priority  as  to  Payment,  1217. 

3.  Respecting  Statutes  in  Which  United  States  Are  Not  Named,  1217. 
D.  Cession  of  Jurisdiction  from  States  over  Forts,  etc.,  1217. 

IV.  Officers  and  Agents,  1217. 
VII.  Contracts,  1217. 

B.  Form,  Requisites  and  A'alidity,  1217. 

2.  Form  Prescribed  by  Statute,  1217. 

c.  Ratification   of   Defective   Instrument,    1217. 

3.  Power  of  Officer  to  Make,  1218. 

4.  Mutual  Assent— Privity  of  Contract,   1218. 

5.  ImpHed  Contracts,  1218. 
I.  Particular  Contracts,  1218. 

7.  Sales,  1218. 

b.  Sales  to  the  United  States,   1218. 

(1)  Construction,  1218. 

(2)  Supplies    for   Departments,    1218. 
(f)   Delivery,  1218. 

9.  Transportation  Contracts,  1218. 
13.  Contracts  for  Railway  Mail  Service,  1219. 

VIII.  Claims,  1219. 

C.  Claims  against  the  United  States,  1219. 

2.  Existence  and  Legality,  1219. 

a.  Claims  Arising  Out  of  Contract  or  under  Statutes,   1219. 

(9)    Sums   in   Excess   of   That   Permitted  by   Congress    for 
Purposes  of  Any  Contract,  1219. 

c.  Recognition  by  Congress,  1219. 

(1)  Empowering  Court  to  Determine  Validity   or   Invalid- 

ity, 1219. 

d.  Recognition  by  Executive  Officer,   1220. 

3.  Auditing  and  Accounting,   1220. 

d.  Claims   for  Unliquidated  Damages,   1220.      * 
5.  Assignment,  1220. 

a.  Voluntary  /\ssignment,   1220. 

(2)  Under  Federal  Statutes,  1220. 

(b)   Construction  and   Operation,   1220. 

745-1.    Unfair  in  list  puVlished  for  pur-  power,   dignity  and   authority,   each    com- 

P°p5,  °^    boycott.— See     post,      VERBAL  petent    to    exert    that    residuum     of     sov- 

•^*-  '  ^-  ereignty     not     delegated     to     the     United 

745-2a.    Union  of  States.— '"This  Union"  States    by    the    constitution    itself.      Coyle 

contained  in  §  3,  art.  IV,  of  the  constitu-  v.    Smith,    221    U.    S.    559,    567,    55    L.    Ed. 

tion,   providing   that   '"new   states   may   be  853,    31    S.    Ct.    688.      See    ante,    STATES, 

admitted    l)y    congress    into    this    Union,"  p.   1117. 
was  and  is  a  Union  of  states,    equal     in 

1216 


Vol.  XL  UNITED  STATES.  753-754 

b.  Transfer  of  Title  by  Operation  of  Law,  1221. 

c.  Suit  by  Assignee,  1221. 
6y2.  Release,   1222. 

12.  Attorney's  Fees,  1222. 

b.  Attorney's  Contingent  Fee  Agreement,   1222. 

X.  Suits  against  the  United  States,  1222. 

A.  Immunity  from   Suit  without  Consent  of  Congress,   1222. 

6.  Tort  Actions  against  Officers  and  Agents  of  United  States,  1222. 

a.  In  General,  1222. 
6y2.     Enjoining   Threatened    Illegal   Actions   of   United    States   Offi- 
cers, 1222. 

a.  In  General.  1222. 

b.  Enjoining  Institution  of  Criminal  Proceedings,   1222. 
J.  Suits  by  State,  1223. 

XII.  Executive  Departments,    1223. 

CROSS  REFERENCES. 

See  the  title  United  States,  vol.  11,  p.  747,  and  references  there  given. 

As  to  conspiracy  to  commit  crimes  against  the  laws  of  the  United  States, 
see  ante.  Conspiracy,  p.  256.  As  to  mandamus  to  executive  officers  of  United 
States,  see  ante.  Mandamus,  p.  838.  As  to  suits  to  cancel  conveyance  of  In- 
dian allotment,  see  ante,  Indians,  p.  641.  As  to  stock  grazing  on  forest  reser- 
vations, see  ante.  Animals,  p.  27. 

III.    Powers,   Prerogatives  and  Liabilities. 

B.  Prerogatives  and  Immunities — 2.  Priority  as  to  Payment. — Prior- 
ity as  Creditor. ^ — See  note  4. 

Priority  of  Payment  Out  of  Estate  of  Insolvent  Debtor. — See  ante, 
Bankruptcy,  p.   168. 

3.  Respecting  Statuti:s  in  Which  United  States  Are  Not  Named. — 
See  note  7. 

D.  Cession  of  Jurisdiction  from  States  over  Ports,  etc. — See  ante, 
Constitutional  Law,  p.  264. 

IV.    Officers  and  Agents. 

See  post,  "Implied  Contracts,"  VII,  B,  5  ;  "Suits  against  the  United  States," 
X.    See  ante.  Public  Officers,  p.  1035. 

VII.    Contracts. 

B.  Form,  Requisites  and  Validity — 2.  Form  Prescribed  by  Statute — 
c.  Ratification  of  Defective  Instrument. — The  invalidity  of  a  public  contract 
because  of  noncompliance  with  the  requirement  of  Rev.  St.  U.  S.  3744  (U.  S. 

753-4.      Lien    for    partial    payments    on  eral    language   of   a    statute,    and    is      not 

vessels    building     for      government. — See  bound  l)y  the  provision  of  an  insolvency 

post.    WORKING    CONTRACTS.  law,  unless  specifically  mentioned  therein 

754-7.      Bankruptcy      act. — The      United  is  sustained  by  Dollar  Sav.  Bank  v.  United 

States  as  a  sovereign  is  not  bound  by  the  States,    19    Wall.    227,    2,39,    22    L.    Ed.    80; 

general    language    of   a     statute,      and      is  United    States    v.    Herron,    20    Wall.    2.51, 

therefore   not  bound  by  the  provisions  of  260,    22    L.    Ed.    275;     Lewis      v.      United 

a  bankruptcy  law  unless  specifically  men-  States,  92   U.   S.   618,  23  L.   Ed.   513.     The 

tioned  therein.     Guarantee  Title,  elc,  Co.  first    case    cited    gives    an    illustration    of 

V.  Title  Guaranty,  etc.,  Co.,  224  U.  S.  152,  it    not    connected    with    bankruptcy  _  laws. 

56   L.    Ed.    706.   32    S.    Ct.    457.      See    ante,  In  the   other  two  cases  it  was   applied  to 

BANKRUPTCY,    p.    168.  •'^uch   laws.      Guarantee   Title,   etc.,    Co.   v. 

The  proposition  that  the  United  States,  Title    Guaranty,    etc.,    Co.,   224   U.    S.    152, 

as  a  sovereign,   is  not  bound  by  the   gen-  5G   L.   Ed.   70G,   32   S.   Ct.   457. 

12   U   S   Enc— 77  1217 


760-770 


UNITED  STATES. 


Vol.  XL 


Comp.  St.  1901,  p.  2510),  that  such  contracts  be  reduced  to  writing  and  be 
subscribed  by  the  contracting  parties,  is  immaterial  after  the  contract  has  been 
performed.^^^ 

3.  Power  of  Officer  to  Make. — See  note  35. 

4.  MuTuAE  Assent — Privity  of  Contract. — See  note  36. 

5.  Implied  Contracts. — An  officer  of  the  United  States  can  not,  by  his 
acts,  create  a  state  of  things  from  which,  in  the  absence  of  legislation  on  the 
subject,  an  implied  contract  could  arise  under  which  the  government  would 
be  liable,  by  reason  of  its  constitutional  duty,  to  make  just  compensation  for 
the  use  'of  private  property  taken  for  public  purposes.  In  such  a  case  the 
remedv  is  with  congress,  and  not  with  the  courts.^^^ 

I.  Particular  Contracts— 7.  Sales— b.  Sales  to  the  United  States— {\) 
Construction.— United  States  Deemed  Purchaser.— Where  both  parties  re- 
garded the  contract  as  one  made  in  the  name  of  and  for  the  account  of  the 
United  States,  the  United  States  must  be  deemed  the  purchaser  and  not  some 
other  government  by  which  the  supplies  were  to  be  used.^^'' 

(2)    Supplies  for  Departments — (f)    Delivery. — See  note  67. 

9.  Transportation  Contracts. — The  practical  construction  put  upon  the 
contract  for  transportation  of  Spanish  military  and  civil  officers  in  the  Philip- 
pines to  Spain,  by  the  course  of  conduct  of  the  United  States,  should  be  up- 
held where  such  construction  seems  from  the  entire  text  of  the  agreement  to 
have  been  that  intended  by  the  parties.'^  ^^ 


760-32a.  Judgment,  R.  P.  Andrews  & 
Co.  V.  United  States  (1905),  41  Ct.  CI.  48, 
affirmed.  United  States  t.  Andrews  ik 
Co.,  207  U.  S.  229,  52  L.  Ed.  185,  28  S. 
Ct.  100,  following  St.  Louis,  etc.,  Grain  Co. 
V.  United  States,  191  U.  S.  159,  48  L.  Ed. 
130,  24  S.   Ct.  47. 

760-35.  Hooe  v.  United  States,  218  U. 
S.  322,  54  L.  Ed.  1055,  31  S.  Ct.  85.  See 
post,    "Implied    Contracts,"    VII,    B,    5. 

760-36.  Meeting  of  minds. — Lord  v. 
United  States,  217  U.  S.  340,  rA  L.  Ed. 
790,    30    S.    Ct.    568. 

761-38a.  Hooe  v.  United  States,  218  U. 
S.  322,  54  L.  Ed.  1055,  31  S.  Ct.  85.  See 
post,  "Sums  in  Excess  of  That  Permitted 
•by  Congress  for  Purposes  of  Any  Con- 
tract," VIII,   C,   2,   a,    (9). 

"The  taking  of  private  property  by  an 
officer  of  the  United  States  for  public 
use,  without  being  authorized,  expressly 
or  by  necessary  implication,  to  do  so  by 
some  act  of  congress,  is  not  the  act  of 
the  sjovernment."  Hooe  v.  United  States, 
218  U.   S.  322,  54  L.   Ed.  1055.  31   S.  Ct.  85. 

765-58a.  The  United  States,  and  not 
the  government  of  the  Philippine  Islands, 
must  be  deemed  the  purchaser  of  paper 
to  be  used  by  the  public  printing  office 
in  those  islands,  where  the  division  of 
insular  affairs,  under  an  order  of  the 
secretary  of  war,  conducted  the  negotia- 
tions for  such  purchase  with  no  intima- 
tion that  it  was  acting  as  the  agent  for 
the  government  of  the  Philippine  Islands, 
other  than  can  be  inferred  from  the 
statement  of  the  purpose  for  which  the 
paper  was  intended,  the  contrary  infer- 
ence being  supported  by  a  reference  to 
the    "Philippine   funds"    as   the    source    of 


payment,  and  by  the  subsequent  corre- 
spondence and  dealings,  which  showed 
that  both  parties  regarded  the  contract 
as  one  made  in  the  name  of,  and  for  the 
account  of,  the  United  States.  Judgment, 
R.  P.  Andrews  &  Co.  v.  United  States 
(1905),  41  Ct.  CI.  48,  affirmed.  United 
States  V.  Andrews  &  Co.,  207  U.  S.  229, 
52    L.    Ed.    185,   28   S.    Ct.    100. 

766-67.  Delivery  to  carrier. — Delivery 
of  paper  purchased  by  the  United  States 
for  the  public  printing  office  in  the 
Philippine  Islands  to  the  carrier  desig- 
nated 'by  the  government,  coupled  with 
the  acceptance  by  the  government  of  the 
bills  of  lading  made  to  the  consignee  or 
his  order,  constitutes  a  delivery  to  the 
United  States,  relieving  the  seller  of  risk 
of  injury  during  shipment,  although  the 
words  "f.  o.  b.  Manila"  were  used  in  the 
proposal  by  which  the  negotiation  was 
commenced,  where  the  context  and  sub- 
sequent correspondence  showed  that  these 
words  were  used  as  implying  that,  inas- 
much as  the  freight  to  Manila  was  to  be 
included  in  the  purchase  price,  it  was  to 
be  primarily  defrayed  by  the  seller. 
United  States  v.  Andrews  &  Co.,  207  U. 
S.   229,   52   L.    Ed.   185,  28   S.   Ct.   100. 

770-78a.  Ceballos  &  Co.  ?'.  United 
States,  214  U.  S.  47,  53  L.  Ed.  904,  29  S. 
Ct.   583. 

The  United  States  should  be  charged 
the  cabin  rate,  with  the  usual  reduction 
for  children  under  ten  years,  for  trans- 
portation to  Spain  as  cabin  passengers  of 
the  wives  and  children  of  Spanish  mili- 
tary and  civil  officers  in  the  Philippine 
Islands,  under  a  contract  for  the  trans- 
portation of  such  officers  at  that  rate,  and 


1218 


Vol.  XL 


UNITED  STATES. 


772-773 


13.  Contracts  for  Raii^way  Mail  Si;rvick. — See  ante,  Postal  Law^  n 
996.  ^' 

VIII.     Claims. 

C.  Claims  against  the  United  States— 2.  Existence  and  Legality— a. 
Claims  Arising  Out  of  Contract  or  under  Statutes — (9)  Sums  in  Excess  of 
That  Permitted  by  Congress  for  Purposes  of  Any  Contract. — If  an  officer, 
upon  his  own  responsibility,  and  without  the  authority  of  congress,  assumes 
to  bind  the  government,  by  express  or  implied  contract,  to  pay  a  sum  in  ex- 
cess of  that  limited  by  congress  for  the  purposes  of  such  a  contract,  the  con- 
tract is  a  nullity,  so  far  as  the  government  is  concerned,  and  no  legal  obligation 
arises  upon  its  part  to  meet  its  provisions.  If  the  circumstances  justify  such 
a  course,  congress,  in  its  discretion,  can  intervene  and  do  justice  to  the  owner 
of  private  property  used  by  officers  of  the  government  in  good  faith,  for  public 
purposes,  although  without  direct  legislative  authority. ^^^  A  claim  in  excess 
of  the  sum  appropriated  by  congress  for  that  purpose  can  not  be  allowed.'^^b 

c.  Recognition  by  Congress — (1)  Empozvering  Court  to  Determine  Validitx 
or  Invalidity. — See  note  93. 


of  sucli  other  persons  as  might  be  desig- 
nated by  the  secretary  of  war  at  the 
steerage  rate.  Judgment  (1907),  J.  M. 
Ceballos  z:  United  States,  42  Ct.  CI.  318. 
reversed.  Ceballos  &  Co.  v.  United 
States,  21-4  U.  S.  47,  53  L.  Ed.  904,  29  S. 
Ct.   583. 

"Other  persons." — All  noncombatants 
except  the  wives  and  children  of  military 
and  civil  officers  were  embraced  in  the 
words  "other  persons"  in  a  contract  with 
the  United  States  for  the  transportation 
to  Spain  at  the  cabin  rate  of  Spanish  mili- 
tary and  civil  officers  in  the  Philippine 
Islands,  and  at  the  steerage  rate  of  such 
other  persons  as  might  be  designated  by 
the  secretary  of  war.  Ceballos  &  Co.  z'. 
United  States,  214  U.  S.  47,  53  L.  Ed.  904, 
29    S.    Ct.    583. 

"In  effect,  therefore,  by  a  course  of 
conduct,  the  United  States  had  associated 
the  wives  and  the  children  of  the  officers 
and  enlisted  men  with  such  officers  and 
men  for  the  purpose  of  the  transporta- 
tion to  be  furnished  and  the  treatment 
to  be  accorded  them  on  the  homeward 
voyage."  Ceballos  &  Co.  v.  United  States, 
214  U.  S.  47,  53  L.  Ed.  904,  29  S    Ct.  5S3. 

772-92a.  Hooe  v.  United  States,  218  U. 
S.    322.    54    L.    Ed.    1055,   31    S.    Ct.    85. 

772-92b.  Claims  for  rent  in  excess  of 
appropriation. — The  owners  of  a  build- 
ing who  have  received  the  entire  sums 
which  congress  has  from  year  to  year 
appropriated  as  full  compensation  for  the 
rent  of  quarters  secured  for  the  civil 
service  commission  by  the  secretary  of 
the  interior,  in  the  discharge  of  his  duty 
under  the  Act  of  Jan.  16,  1883  (22  Stat. 
at  L.  403,  405,  chap.  27,  U.  S.  Comp.  Stat. 
1901,  p.  1220),  can  not  maintain  suit 
against  the  government  under  the  Acf  of 
March  3.  1887  (24  Stat,  at  L.  505,  chap. 
359,  U.  S.  Comp.  Stat.  1901,  p.  752),  to 
recover  the  diflference  between  such  sums 


and  the  fair  rental  value  of  the  building, 
including  the  basement,  which  was  used 
without  consent,  on  the  theory  that  the 
claim,  is  founded  either  upon  a  contract, 
express  or  implied,  or  upon  the  constitu- 
tional obligation  to  make  just  compensa- 
tion for  private  property  taken  for  pub- 
lic use,  in  view  of  U.  S.  Rev.  Stat..  §§  3(579, 
3732,  U.  S.  Comp.  Stat.  1901,  pp.  2454, 
2504,  providing  respectively  that  "no  de- 
partment of  the  government  shall  expend 
in  any  one  fiscal  year  any  sum  in  e.xcess 
of  appropriations  made  by  congress  for 
that  fiscal  year,  or  involve  the  govern- 
ment in  any  contract  for  the  future  pay- 
ment of  monej'  in  excess  of  such  appro- 
priations," and  that  "no  contract  or 
purchase  on  behalf  of  the  United  States 
shall  be  made  unless  the  same  is  au- 
thorized by  law,  or  is  under  an  appro- 
priation adequate  to  its  fulfillment,''  and 
of  the  acts  of  congress  of  June  22.  187' 
(18  Stat,  at  L.  133,  144,  chap.  388),  and 
March  3,  1877  (19  Stat,  at  L.  363,  370. 
chap.  106  U.  S.  Comp.  Stat.  1901,  p.  2514\ 
prohibiting  contracts  for  the  rental  of 
property  for  government  purposes  until 
an  appropriation  therefor  shall  have  been 
made  in  terms  by  congress.  Hooe  ?•. 
United  States,  218  U.  S^  322,  54  L.  Ed. 
1055.    31    S.    Ct.   85. 

773-93.  The  enactment  by  congress  of 
the  provision  of  Indian  Appropriation  .A.ct 
March  3,  1903.  c.  994.  §  13.  32  Stat.  1010. 
1011,  for  the  presentation  to,  and  decision 
on  the  merits  l)y,  the  court  of  claims  of  a 
claim  by  a  register  of  the  land  office  for 
commissions  for  selling  the  lands  ceded 
by  the  Osage  Indians  to  the  LInitcd 
States  by  the  treaty  of  September  29, 
1865  (14  Stat.  687),  to  be  sold  for  thf>ir 
benefit,  does  not  imply  any  admi.ssion 
that  there  is  anything  due  the  claimant. 
Judgment  (1904),  39  Ct.  CI.  321,  affirmed. 
Stewart    v.    United    States,    etc.,    Nation, 


1219 


773-780 


UNITBD  STATES. 


Vol.  XL 


d.  Recognition  by  Executive  Officer. — Executive  officers  are  not  authorized 
to  entertain  and  settle  claims  for  unliquidated  damages.^^* 

3.  Auditing  and  Accounting — d.  Claims  for  Unliquidated  Damages.— See 
ante,  "Recognition  by  Executive  Officer,"  VIII,  C,  2,  d.  The  accounting  officers 
have  no  jurisdiction  of  claims  for  unliquidated  damages  except  in  special  and 
exceptional  cases,  in  which  it  has  been  expressly  conferred  upon  them  by 
special  or  private  acts.^*^'^ 

5.  Assignme:nt — a.  Voluntary  Assignment — (2)  Under  Federal  Statutes 
—  (b)  Construction  and  Operation. — Under  §  3477,  U.  S.  Comp.  Stat.,  1901, 
p.  2320,  all  transfers  and  assignments  of  any  claim  on  the  United  States,  or 
part  of  a  claim  or  any  interest  therein,  w^hether  the  transfer  or  assignment  be 
absolute  or  unconditional,  and  whatever  was  the  consideration  of  the  transfer 
or  assignment,  and  all  powers  of  attorney,  orders,  or  other  authorities  for 
receiving  payment  of  any  such  claim,  or  of  any  part  or  share  thereof  are  "ab- 
solutely null  and  void,"  except  there  be  a  compliance  with  the  conditions  fully 
set  out  in  the  statute. -^^ 


206  U.  S.  185,  51  L.  Ed.  1017,  27  S.  Ct. 
631. 

The  mere  recital  that  the  claimant 
had  a  prior  lien,  contained  in  Act  May 
27,  1902,  c.  887,  32  Stat.  207,  243,  em- 
powering the  court  of  claims  to  hear  and 
determine  a  claim  against  the  government 
on  account  of  a  sale  of  real  estate  to 
satisfy  unpaid  internal  revenue  taxes,  is 
not  an  admission  of  that  fact,  where  it 
is  manifest  that  congress  intended  that 
the  claim  was  to  be  judicially  investi- 
gated, and  determined  according  to  all 
the  facts  as  disclosed  by  the  evidence 
adduced.  Judgment  (1906),  41  Ct.  CI.  89. 
alfirmed.  Blacklock  v.  United  States,  208 
U.  S.  75.  52  L.  Ed.  396.  28  S.  Ct.  228,  fol- 
lowing Kinkead  v.  United  States,  150  U. 
S.   483.   37   L.   Ed.   1152,   14   S.   Ct.   172. 

773-95a.  Judgment.  William  Cramp  & 
Co.  V.  United  States  (1908),  43  Ct.  CI.  202, 
reversed.  Cramp  &  Sons,  etc..  Engine 
Bldg.  Co.  V.  United  States,  216  U.  S.  494, 
54  L.   Ed.  587,   30  S.   Ct.  392. 

775-lOa.  "And  such  has  been  the  opin- 
ion of  five  attorney  generals,  all  \'ho  hive 
officially  advised  the  executive  officers  on 
the  subject.  Attorney  General  Taney,  in 
1832,  whose  opinion  is  referred  to  by 
his  successors  in  office:  Attorney  Gen- 
eral Nelson,  in  1844  (4  Ops.  Attv.  Gen. 
327);  Attorney  General  ClifTord.  in  1847 
(4  Ops.  Atty.  Gen.  627);  Annrnev  General 
Cushing,  in  1854  (6  Ops.  Atty.  Gen.  524); 
and  Attorney  General  Williams,  in  1872 
(14  Ops.  Atty.  Gen.  24).  And  the  same 
views  were  expressed  by  this  court  in 
1866  (Carmick  v.  United  States,  2  Ct.  CI. 
120,  140).  McClure  v.  United  States,  19 
Ct.  CI.  28,  29;  Brannen  v.  United  States, 
20  Ct.  CI.  219,  223.  224;  4  Ops.  Atty.  Gen. 
327,  328.  626,  630."  Cramo  &  Sons,  etc.. 
Engine  Bldg.  Co.  v.  United  States,  216 
U.    S.    494,    54    L.    Ed.    587,   30   S.    Ct.    392. 

780-28a.  National  Bank  v.  Downie,  218 
U.   S.  345,  54  L.  Ed.  1065,  31  S.  Ct.  89. 

Section   3477    of   the    Rev.    Stat.    (U.    S. 


Comp.  Stat.  1901,  p.  2320),  was  brought 
forward  from  previous  acts  of  congress. 
The  w^ords  of  that  section  are  so  clear 
and  explicit  that  there  can  not  be  any 
reasonable  ground  to  doubt  the  purpose 
of  this  legislation.  Its  essential  fea- 
tures are  not  new,  as  can  be  seen  by  an 
examination  of  the  Act  of  Congress  of 
July  29,  1846,  "in  relation  to  the  payment 
of  claims"  on  the  United  States,  and  the 
Act  of  February  26,  1853,  "to  prevent 
frauds  upon  the  treasury  of  the  United 
States."  9  Stat,  at  L.  41,  chap.  66;  U.  S. 
Comp.  Stat.  1901,  p.  2320;  10  Stat,  at  L. 
170,  chap.  81,  U.  S.  Comp.  Stat.  1901,  p. 
2320.  National  Bank  v.  Downie,  218  U. 
S.   345,   54   L.    Ed.   1065,   31   S.   Ct.   89. 

In  Spofford  v.  Kirk,  97  U.  S.  484,  24  L. 
Ed.  1032,  the  court  said:  "It  wottld  seem 
to  be  impossible  to  use  language  more 
comprehensive  than  this.  It  einbraces 
alike  legal  and  equitable  assignments.  It 
includes  powers  of  attorney,  orders,  or 
other  authorities  for  receiving  payment 
of  any  such  claim,  or  anj--  part  or  share 
thereof.  It  strikes  at  every  derivative  in- 
terest, in  whatever  form  acquired,  and 
incapacitates  every  claimant  upon  the 
government  from  creating  an  interest  in 
the  claim  in  any  other  than  himself." 
National  Bank  ?■  Downie,  318  U.  S.  345, 
54  L.   Ed.   1065.  31   S.   Ct.   89. 

Such  assignments  are  invalid  as  be- 
tween the  assignor  and  the  assignee,  if, 
after  an  assignment  the  claim  is  allowed, 
and  a  warrant  for  its  payment  issued  in 
the  claimant's  name,  no  assignment  he 
might  have  made,  or  order  he  might  have 
given,  before  the  allowance,  could  stand 
in  the  way  of  his  receiving  the  whole 
sum  allowed.  It  is  hard  to  see  how  a 
transfer  of  a  debt  can  be  of  no  force  as 
betv.'een  the  transferee  and  the  debtor, 
and  yet  effective  as  between  the  creditor 
and  his  assignee  to  transmit  an  owner- 
ship of  the  debt,  or  create  a  lien  upon  it. 
The  court  did  not  affirm  or  deny  it.     The 


1220 


Vol.  XI. 


UXITBD  STATES. 


783 


b.  Transfer  of  Title  by  Operation  of  Lazi\ — The  act  of  1833.  embodied 
now  in  §  3477  of  the  Revised  Statutes,  to  prevent  frauds  upon  the  treasury, 
appHes  only  to  cases  of  voluntary  assignment  of  demands  against  the  govern- 
ment. It  does  not  embrace  the  transfer  of  a  claim  against  the  United  States, 
where  the  transfer  of  title  has  been  by  operation  of  law,  not  merely  as  the 
result  of  a  voluntary  assignment  by  the  claimant.  The  passing  of  claims 
to  heirs,  devisees,  or  assignees  in  bankruptcy  is  not  within  the  statute ;  nor 
does  the  construction  given  the  act  deny  to  such  parties  a  standing  in  the 
court  of  claims.^^^ 

c.  Suit  by  Assignee. — See  note  45. 


intention  of  congress  must  be  discov- 
ered in  the  act  itself.  The  court  can  not 
say,  when  the  statute  declares  all  trans- 
fers and  assignments  of  the  whole  of  a 
claim,  or  any  part  or  interest  therein,  and 
all  orders,  powers  of  attorney,  or  other 
authority  for  receiving  payment  of  the 
claim,  or  any  part  thereof,  shall  be  abso- 
lutely null  and  void,  that  they  are  only 
partially  null  and  void,  that  they  are 
valid  and  effective  as  between  the  parties 
thereto,  and  only  invalid  when  set  up 
against  the  government.  National  Bank 
V.  Downie,  218  U.  S.  34.5,  54  L.  Ed.  1065, 
31  S.  Ct.  89,  following  Spofford  v.  Kirk. 
97   U.    S.    484,   24    L.    Ed.    10.'52. 

The  obvious  purpose  of  the  statute,  "in 
part,"  was  to  forbid  anyone  who  was  a 
stranger  to  the  original  transaction  to 
come  between  the  claimant  and  the  gov- 
ernment, prior  to  the  allowance  of  a 
claim,  and  who.  in  asserting  his  own  in- 
terest or  share  in  the  claim,  pending  its 
examination,  might  embarrass  the  con- 
duct of  the  business  on  the  part  of  the 
ofificers  of  the  government.  National 
Bank  v.  Downie,  218  U.  S.  345.  54  E.  Ed. 
10G5,    31    S.    Ct.    89. 

Instances — Acceptances  assigned  in 
good  faith  for  value. — The  case  of  Spof- 
ford V.  Kirk,  97  U.  S.  484,  490,  24  L.  Ed. 
1032,  frequently  referred  to  in  later  de- 
cisions and  always  followed,  was  a  suit 
by  Spofiford,  in  the  supreme  court  of  the 
district  of  Columbia.  He  l^ecame  the 
holder,  by  assignment,  of  certain  ac- 
ceptances which,  upon  their  face,  pro- 
vided for  payment  to  be  made  out  of  any 
moneys  received  from  the  United  States 
on  the  claim  of  one  Kirk  against  the  gov- 
ernment. The  assignee  or  liolder  of  the 
acceptances  paid  value  for  them.  and 
acted  in  entire  good  faith.  The  question 
was  whether  an  assignment  of  a  claim 
against  the  United  States,  made  before 
the  claim  had  been  allowed,  and  before 
a  warrant  had  been  issued  for  its  pay- 
ment, had  any  validit}',  either  in  law  or 
in  equity.  The  court  of  original  juris- 
diction dismissed  Spoiiford's  bill,  and  the 
iudgment  was  affirmed  here.  National 
Bank  :'.  Downie,  218  U.  S.  345,  54  L.  Ed. 
1065,   31    S.   Ct.   89. 

Transfer  by  mortgage  and  judicial  sale. 
—"In    St.    Paul.    etc..    R.    Co.    r.    United 


States,  112  U.  S.  733,  736,  28  L.  Ed.  861, 
5  S.  Ct.  366,  the  court  held  that  a  volun- 
tary transfer  by  mortgage,  for  the  secu- 
rity of  a  debt,  and  finally  completed  and 
made  absolute  by  a  judicial  sale,  was 
within  the  prohibition  of  §  3477,  Mr.  Jus- 
tice Matthews,  speaking  for  the  court, 
saying  that,  'if  the  statute  does  not  ap- 
ply to  such  cases,  it  would  be  difficult  to 
draw  a  line  of  exclusion  which  leaves  any 
place  for  the  operation  of  the  prohibi- 
tion.' "  National  Bank  v.  Downie.  218 
U.    S.   345.    54    L.    Ed.    1065,    31    S.    Ct.    89. 

Validity  of  assignment  as  collateral 
security  as  against  trustee  in  bankruptcy. 
— Assignments  as  collateral  security  for 
a  loan  of  unallowed  claims  against  the 
United  States  on  account  of  contracts 
for  furnishing  materials  to  the  various 
departments  of  the  government,  being  in 
direct  opposition  to  U.  S.  Rev.  Stat.. 
§  3477.  U.  S.  Comp.  Stat.  1901.  p.  2320, 
making  absolutely  null  and  void  volun- 
tary transfers  of  claims  against  the 
United  States  before  their  allowance,  can 
confer  no  interest  in  the  assignees,  as 
against  the  trustee  in  bankruptcy  of  the 
assignors.  National  Bank  v.  Downie,  218 
U.    S.   345,   54   L.   Ed.   1065,  31   S.   Ct.   89. 

Attorney's  contingent  fee. — See  post, 
"Attorney's  Contingent  Fee  Agreement," 
VTII.  C.  12,  b. 

783-43a.  National  Bank  v.  Downie,  218 
U.  S.  345.  54  L.  Ed.  1065,  31  S.  Ct.  89, 
following  Erwin  v.  United  States,  97  U. 
S.    392,    24    L.    Ed.    1065. 

In  Erwin  z:  United  States,  97  U.  S. 
392,  397.  24  L.  Ed.  1065.  the  court  said: 
"This  construction  of  the  statute  was 
recosrnized  as  settled  law  in  Goodman  :■. 
Niblark.  102  U.  S.  556,  560,  26  L.  Ed.  229; 
St.  Paul,  etc..  R.  Co.  v.  United  States. 
112  U.  S.  733.  736.  28  L.  Ed.  801.  5  S  Ct. 
366:  Butler  z:  Goreley.  146  U.  S.  303.  311, 
36  U  Ed.  981,  13  S.  Ct.  84;  Hager  v. 
Swayne,  149  U.  S.  242.  247.  37  L.  Ed.  719, 
13  S.  Ct.  841,  and  Ball  z:  Halscll.  161  U. 
S.  72,  79,  40  L.  Ed.  622.  16  S.  Ct.  554." 
National  Bank  z\  Downie,  218  U.  S.  345. 
54   L.    Ed.    1065.   31    S.    Ct.   89. 

783-45.  "In  United  States  z:  Gillis,  95 
IT.  S.  407,  24  E.  Ed.  503,  it  appear';  that 
suit  was  brought  in  the  court  of  claims, 
by  the  assignee  of  an  unallowed  claim 
on    the    United    States,    and    the    ciuestion 


1221 


793-802 


UNITED  STATES. 


Vol.  XI. 


,    6y2.    Release. — See  post,  Working  Contracts. 

12.  Attorney's  Fees — b.  Attorney's  Contingent  Fee  Agreement. — See  note 
83. 

Effect  of  §  3477,  Rev.  Stat.,  Prohibiting  Assignment  of  Claims 
against  United  States. — See  note  84. 

X.    Suits  against  the  United  States. 

A.  Immunity  from  Suit  without  Consent  of  Congress — 6.  Tort  Ac- 
tions AGAINST  Officers  and  Agents  of  United  States — a.  In  General. — 
The  exemption  of  the  United  States  from  suit  does  not  protect  its  officers 
from  personal  liability  to  persons  whose  rights  of  property  they  have  wrong- 
fully invaded. ^"^^ 

6^.  Enjoining  Threatened  Illegal  Actions  of  United  States  Officers 
— a.  In  General. — In  case  of  an  injury,  threatened  by  his  illegal  action,  an  officer 
of  the  United  States  can  not  claim  immunity  from  injunctive  process.  If  the  con- 
duct of  such  officer  constitutes  an  unwarrantable  interference  with  property 
of  the  complainant,  resort  to  equity  for  protection  is  not  to  be  defeated  upon 
the  ground  that  the  suit  is  one  against  the  United  States. i''-'' 

b.  Enjoining  Institution  of  Criminal  Proceedings. — The  exemption  of  the 
United  States  from  suit  does  not  preclude  an  action  to  prevent  the  secretary 
of  war  from  causing    criminal  proceedings  to  be    instituted  against  a    riparian 


arose  whether  the  assignee  could  main- 
tain a  suit  in  his  name  for  the  proceeds 
of  the  claim.  The  court  of  claims  sus- 
tained the  assignee's  right  to  sue,  but 
this  court,  upon  careful  examination  of 
the  act  of  1853,  re-enacted  in  §  3477,  Rev. 
Stat.,  reversed  the  judgment,  and  di- 
rected the  petition  of  the  assignee  to  be 
dismissed.  It  was  contended  in  that 
case  that  the  Act  of  1853  had  reference 
only  to  claims  asserted  before  the  treas- 
ury department.  But  that  view  was  re- 
jected. After  observing  that  the  compre- 
hensive provisions  of  the  statute  ex- 
cluded any  exceptions  to  the  rule 
presented,  the  court  said:  'We  think, 
therefore,  the  Act  of  1853  is  of  universal 
application,  and  covers  all  claims  against 
the  United  States  in  every  tribunal  in 
which  they  may  be  asserted.  And  such, 
we  think,  was  the  vmderstanding  of  con- 
gress when  the  Revised  Statutes  were 
enacted.  In  the  revision,  the  Act  of 
1853  was  included  and  re-enacted.'"  Na- 
tional Bank  v.  Downie,  2J8  U.  S.  345,  54 
L.    Ed.    10G5,   31    S.    Ct.   89. 

793-83.  See  ante.  ATTORNEY  AND 
CLIENT,  p.   158;   LACHES,  p.  818. 

793-84.  The  case  of  Nutt  v.  Knut,  200 
U.  S.  12.  20,  50  L.  Ed.  348,  26  S.  Ct.  216, 
involved  the  validity  of  the  clause  in  a 
written  contract  relating  to  compensa- 
tion to  be  made  to  an  attorney  employed 
to  prosecute  a  claim  against  the  United 
States.  The  contract  provided  that  the 
payment  of  such  compensation  "is  hereby 
made  a  linn  upon  said  claim,  and  upon 
any  draft,  money,  or  evidence  of  in- 
debtedness which  may  be  issued  thereon. 
This  agreement  not  to  be  affected  by 
any  services  performed  by  the  claimant, 
or  by  any  other  agents   or  attorneys  em- 


ployed by  him."  After  referring  to  the 
words  of  §  3477,  and  citing  previous  cases 
in  which  the  scope  and  meaning  of  that 
section  were  considered.  It  was  held 
that  the  contract  was  null  and  void  on 
its  face.  National  Bank  v.  Downie,  318 
U.   S.  345,   5.4   L.   Ed.   1065,   32   S.   Ct.  89. 

In  Nutt  V.  Knut,  200  U.  S.  12,  50  L.  Ed. 
348,  26  S.  Ct.  216,  the  court  said,  in  re- 
gard to  that  clause  making  the  payment 
of  the  attorney's  compensation  a  lien 
upon  the  claim  asserted  against  the  gov- 
ernment, and  upon  any  draft,  money  or 
evidence  of  indebtedness  issued  thereon: 
"In  giving  that  lien  from  the  outset,  be- 
fore the  allowance  of  the  claim,  and  be- 
fore any  services  had  been  rendered  by 
the  attorney,  the  contract,  in  effect,  gave 
him  an  interest  or  share  in  the  claim  it- 
self, and  in  any  evidence  of  indebtedness 
issued  by  the  government  on  account  of 
it.  In  effect,  or  by  its  operation  it  trans- 
ferred or  assigned  to  the  attorney  in  ad- 
vance of  the  allowance  of  the  claim  such 
an  interest  as  would  secure  the  payment 
of  the  fee  stipulated  to  be  paid.  .\11  this 
was  contrary  to  the  statute."  National 
Bank  v.  Downie,  218  U.  S.  345,  54  L.  Ed. 
1065,  31  S.  Ct.  89.  See  ante,  "Assign- 
ment," VIII,   C,  5. 

800-14a.  Philadelphia  Co.  v.  Stimson, 
223  U.  S.  605,  56  L.  Ed.  570,  32  S.  Ct.  340, 
following  The  Flying  Fish.  2  Cranch 
170,  2  L.  Ed.  243;  United  States  v.  Lee, 
106  U.  S.,196,  221.  27  L.  Ed.  171.  1  S.  Ct. 
240;  Belknap  v.  Schild,  161  U.  S.  10,  18, 
40  L.  Ed.  599.  16  Ct.  443;  Tindal  v.  Wes- 
ley, 167  U.  S.  204,  42  L.  Ed.  137,  17  S.  Ct. 
770;  and  Scranton  7'.  Wheeler,  179  U.  S. 
14T.   152.  45  L.   Ed.  ■l?6.  21    S.   Ct.   48. 

802-17a.  Philadelphia  Co.  v.  Stimson, 
223  U.   S.  605,  56  L.  Ed.  570,  32   S.  Ct.  340. 


1222 


Vol.  XL  UPON  CONDITION.  802-82  9 

owner  because  of  the  reclamation  and  occupation  of  his  land  outside  prescribed 
harbor  limits,  if  his  rights  of  property  were  wrongfully  invaded  in  fixing  such 
limits. i'""  One  whose  property  rights  have  been  invaded  in  fixing  harbor 
lines  may  maintain  an  action  to  restrain  the  secretary  of  war  from  causing 
threatened  criminal  proceedings  to  be  instituted  against  him  in  accordance 
with  the  provisions  of  the  Act  of  Congress  of  March  3,  1899  (30  Stat,  at  L. 
1121,  115J-1153,  chap.  425,  U.  S.  Comp.  Stat.  1901,  pp.  3541,  3542,  3544),  §§ 
11,  12,  17,  for  undertaking  the  reclamation  and  occupation  of  land  belonging 
to  him  beyond  the  prescribed  harbor  limits. ^"'= 

J.     Suits  by  State.— Bill  to  Establish  Title.— See  note  30a. 

XII.    Executive  Departments. 

See  ante,  "Suits  against  the  United  States,"  X. 

UNITED  STATES  COMMISSIONERS.— See  the  title  United  States 
CommissioxErs.  vol.  11,  p.  817,  and  references  there  given. 

UNITED  STATES  COURTS.— See  ante.  Courts,  p.  398. 

UNITED  STATES  MARSHALS.— See  the  title  UxXited  States  ^Iarshals, 
vol.  11.  p.  822,  and  references  there  given. 

UNIVERSITY  GRANTS.— See  ante,  Public  Lands,  p.  1012. 

UNIVERSITY  LANDS.— See  ante.  Public  Lands,  p.  1012. 

UNLAWFUL  USE  OF  MAILS.— See  ante.  Postal  Laws,  p.  996. 

UNMANUFACTURED   TOBACCO.— See  note  2a. 

UNMIXED  JURY.— See  ante,  Civil  Rights,  p.  236. 

UPON  CONDITION.— See  ante,  Conditions,  p.  248. 

802-17b.     Philadelphia    Co.    v.    Stimson,  in   equitj'   filed  by   the   state   of  Louisiana 

223  U.  S.  G05,  56  L.  Ed.  570,  32  S.  Ct.  340.  against   the   secretary   of  the   interior  and 

802-17C.     Philadelphia    Co.    v.    Stimson,  the     commissioner    of    the    general    land 

223  U.  S.  605,  56  L.  Ed.  570,  33  S.  Ct.  340.  office    to    establish    its     title      under      the 

An  action  to  prevent  the  secretary  of  Swamp  Land  Grant  Act  of  March  2,  1849 
war  from  causing  threatened  criminal  (9  Stat.  352,  c.  87),  to  certain  lands  v.hich 
proceedings  to  be  instituted  against  a  were  approved  to  the  state  bj-  the  secre- 
riparian  owner  because  of  the  reclama-  tarj'  of  the  interior  upon  the  manifest 
tion  and  occupation  of  land  outside  pre-  mistake  of  law.  that,  upon  the  abandon- 
scribed  harbor  limits,  in  the  fixing  of  ment  of  the  military  reservation  of  which 
which  such  owner  claims  that  his  prop-  they  formed  a  part,  the  lands  fell  within 
erty  rights  have  been  invaded,  will  lie  the  terms  of  the  grant,  since  such  suit 
in  a  court  of  equity  in  the  District  of  Co-  raises  questions  of  law  and  fact  upon 
lumbia  in  which  jurisdiction  of  the  per-  which  the  United  States  would  have  to 
son  of  the  secretary  of  war  has  been  be  heard.  -Louisiana  v.  Garfield,  211  U. 
properly  obtained.  Although  complain-  S.  70.  53  L.  Ed.  92,  29  S.  Ct.  31. 
ant  will  be  required  to  prove  his  title  to  829-2a.  Revenue  laws.— Tobacco  sweep- 
land  outside  such  harbor  limits,  the  har-  j^gs  or  scrap  used  in  the  manufacturing 
bor  line  is  claimed  to  be  a  cloud  upon  of  stogies  and  cigarettes  are  dutiable  un- 
his  title,  and  such  land  is  in  a  navigable  der  the  Tariff  Act  of  1897,  par.  215,  as  un- 
river  in  Pennsylvania,  outside  the  tern-  manufactured  tobacco  and  not  under 
tonal  junsdiction  of  the  court.  Phila-  p^r.  4r,3.  as  "waste  not  specially  provided 
delphia  Co.  v.  Stimson.  223  U.  S.  605,  56  for  in  this  act."  Latimer  v.  United  States, 
L.    Ed.    570,    32    S.    Ct.    340.  223  U.  S.  501.  56  L.  Ed.  526,  32   S.  Ct.  242. 

805-30a.    The    supreme     court      of     the  See  ante,  REVENUE  LAWS.  p.  1071. 
United  States  has  no  jurisdiction  of  a  bill 

1223 


833-862  VARIANCE.  Vol.  XI. 


USAGES  AND  CUSTOMS. 

V.  Requisites,  1224. 
VI.  Application  and  Effect,  1224. 
A.  As  to  Contracts,   1224. 

1.  To  Make  Contract,  1224. 

CROSS  REFERENCES. 

See  the  title  Usages  and  Customs,  vol.  11,  p.  831,  and  references  there  given. 

V.  Requisites. 

Testimony  that  it  is  a  custom  of  land  agents  to  have  applicants  for  public 
lands  make  affidavits  in  regard  to  the  character  and  occupation  of  the  land 
without  personal  knowledge  is  inadmissible  in  a  prosecution  for  conspiring  to 
obtain  land  from  the  United  States  through  fraud,  as  a  custom  can  not  be 
established  in  violation  of  law.^^^ 

VI.    Application  and  Effect. 
A.    As  to  Contracts — 1.    To  Make  Contract. — See  note  17. 

USURY. — See  the  title  Usury,  vol.  11,  p.  838,  and  references  there  given. 
In  addition,  see  ante.  Banks  and  Banking,  p.  184. 

VACANT  LANDS.— See  ante,  Pubuc  Lands,  p.   1012. 

VACATION.— See  ante,   Adjournments,  p.  9. 

VALIDATION  OF  LAND  CLAIMS.— See  ante.  Public  Lands,  p.  1012. 

VARIANCE. 

II.  Variance  between  Pleadings  and  Proof,   1224. 

CROSS  REFERENCES. 

See  the  title  Variance,  vol.  11,  p.  860,  and  references  there  given. 
In  addition,  see  ante.  Specific  Performance,  p.  1114. 

II.    Variance  between  Pleadings  and  Proof. 
Test  as  to  Materiality  of  Variance. — See  note  7. 

833-13a.     Requisites. — Hyde    f.     United  which  shall  be  kept  continually  in  place, 

States,    35    App.    D.    C.    451,   writ    of   cer-  and    preclude    extra    allowance     for      ex- 

tiorari  granted  in  Hyde  v.  United  States,  cavating    material     different     from      that 

218   U.    S.   G81,   54   L.    Ed.    1207,   31    S.   Ct.  therein    described,    or    payment    for   work 

228.      See    ante,     PUBLIC      LANDS,      p.  outside    the    designated    lines    of    excava- 

1012.  tion    or   below    the    specified     depth,      and 

834-17.  Application  and  effect  as  to  state  that  any  material  deposited  other- 
contracts. — Payment  for  removing  the  wise  than  specified  and  agreed  upon  must 
earth  which  may  slide  into  the  channel  be  removed  by  the  contractor  at  his  own 
from  the  sides  or  slopes  during  excava-  expense,  that  no  guaranty  is  given  as  to 
tion  is  so  clearly  excluded  by  a  dredging  the  nature  of  the  bottom,  and  that  no 
contract  as  to  prevent  giving  the  words  claim  will  be  made  for  any  excess  or 
"measured  in  place"  a  trade  meaning  deficiency  in  the  estimate  of  quantity, 
which  demands  a  different  construction,  Judgment  (1906),  41  Ct.  CI.  214,  affirmed. 
where  the  specifications  provide  for  pay-  Bowers,  etc..  Dredging  Co.  v.  United 
ment  by  the  cubic  yard,  measured  in  States,  211  U.  S.  176,  53  L.  Ed.  136,  29 
place,    determined    by    surveys    made    be-  S.    Ct.    77. 

fore    dredging    is    commenced    and    after  862-7.     When    variance    deemed    imma- 

completion,    require    that    the    work    shall  terial. — Standard    Oil    Co.    ?'.    Brown,    218 

be   plainly  located   by   stakes   and   ranges,  U.  S.  78,  54  L.  Ed.  939,  30  S.  Ct.  669. 

1224 


Vol.  XI.  VENDOR  AND  PURCHASER.  898-900 

VENDITIONI  EXPONAS.— See  the  title  Venditioni  Exponas,,  vol.   11.  p. 
863,  and  references  there  given. 


VENDOR  AND  PURCHASER. 
V.  Remedies,  1225. 

A.  Of  Vendor,  1225. 

4.  Election  of  Remedies,  1225. 

B.  Of  Purchaser,  1225. 

2.  Breach  of  Contract,   1225. 

a.  ^Measure  of  Damages,   1225. 

c.  Evidence,  1225. 
2j^.  Damages  for  Dispossession,  1225. 

CROSS  REFERENCES. 

See  the  title  Vendor  and  Purchaser,  vol.  11,  p.  864,  and  references  there 
given. 

As  to  sufficiency  of  amount  in  dispute,  in  a  suit  to  recover  damages  for  breach 
of  contract  by  the  vendor,  to  give  the  federal  supreme  court  jurisdiction  of  a 
w^rit  of  error  to  the  court  of  appeals  of  the  District  of  Columbia,  see  ante, 
Appeal  and  Error,  p.  34.  As  to  a  condition  in  a  contract  for  the  sale  of  mines, 
see  ante,  Contracts,  p.  ZYZ.  As  to  a  vendee  of  land  upon  which  a  railroad 
company  had  constructed  its  road  without  making  compensation  therefor,  see 
ante.  Eminent  Domain,  p.  537.  As  to  admissibility  of  parol  evidence  to 
identify  the  premises  and  to  remove  an  ambiguity  in  the  contract,  see  ante, 
Parol  Evidence,  p.  931. 

V.    Remedies. 

A.  Of  Vendor — 4.  Election  oe  Remedies. — A  vendor  may  acquire,  un- 
der the  terms  of  the  contract  of  sale,  the  right  to  elect  either  to  insist  upon 
a  forfeiture  by  the  vendee  or  to  enforce  specific  performance  after  default  in 
payment  of  the  balance  of  the  purchase  price. ^"^^ 

B.  Of  Purchaser — 2.  Breach  of  Contract — a.  Measure  of  Damages. — 
The  difference  between  the  purchase  price  and  the  market  value  at  the  time 
of  executing  a  contract  for  the  sale  of  land  is  the  measure  of  damages  in  an 
action  by  the  vendee  for  the  vendor's  refusal  to  perform. ^"^ 

c.  Evidence. — Evidence  of  the  value  of  the  benefit  of  a  liquor  license  and 
of  the  business  and  good  will  embraced  in  a  contract  for  the  sale  of  real  prop- 
erty is  admissible  on  the  question  of  damages  in  an  action  by  the  vendee  against 
the  vendor,  for  refusal  to  perform.^^ 

2^.  Damages  for  Dispossession. — The  purchaser  in  possession  under 
a  contract  for  the  sale  of  mines  by  which  the  deed  was  placed  in  escrow. 

898-87a.     The    vendor    may    elect    either  of  a  lot  reserved,   the  vendor  "shall  have 

to    insist    upon    the    forfeiture    or    enforce  paid   to   him   a   soecified   sum   if  he   elects 

specific  performance  after  default  in  pay-  to     abandon     it."        Decree.      Griffith      v. 

ment  of  the  balance  of  the  purchase  price.  Stewart  (1908).  .31   App.  D.  C.  29.  affirmed, 

under   a   contract   which    provides   that,   if  Stewart   f.    Griffith,    217   U.    S.    323.    .54   L. 

such    balance   be    not   paid    on    a   specified  Ed.  782.   30   S.   Ct.  528. 

date,  the  amount  paid  "is  to  be  forfeited,  899-97a.       Measure      of     damages       for 

and  the   contract  of  sale  and   conveyance  vendor's    refusal    to    perform. — Harten    ?•. 

to  be   null   and   void,   and   of   no   effect   in  T.offler.   212    U.    S.   .".;i7.   .">•'?    L.    Kd     .")<i^>,   29 

law,"  where  the  sum  paid  is  stated  to  be  c;    q^    '-51     affirmimj   20   App.   D.   C.  490. 
"part  purchase  price  of  the  total   sum   to  ^^^_^^      Evidence    admissible    on    ques- 

be    paid       the    land    is    described    as      be-  ^j^^^   ^j  damages.-Harten   v.   Loffler.   212 

inR  sold,     and   the   purchase  price     is   to  ^y     q    „„_     .-o    t      va     ^ks    oq    q    Cf    r>ri 

be      divided     and    the    notes    secured    by  ^^,^^-        09   App.   D.   C.   490. 
mortgage     to  be   given,     and.  m   the   case 

122.'. 


900-910  VBNUB.  Vol.  XL 

and  the  purchaser  required  to  deposit  in  a  designated  bank,  the  net  proceeds 
from  the  ores,  to  be  credited  upon  the  purchase  price,  can  not  claim  damages 
for  his  dispossession  by  the  vendor  because  of  the  failure  to  make  such  de- 
posits, without  showing  a  valid  excuse  therefor.^'^ 

VENDOR'S    LIENS.— See  the  title    Vendor's    Liens,    vol.  11,  p.  902,  and 
references  there  given.     In  addition,  see  ante.  Courts,  p.  398. 
VENIRE  FACIAS.— See  ante.  Grand  Jury,  p.  609. 

VENUE. 

II.  In  Civil  Actions,  1226. 

A.  Actions  at  Law,  1226. 

1.  In  Federal  Courts,  1226. 
b.  Under  Statute,  1226. 
3.  In  Particular  Actions,  1227. 

a.  Actions  on  Contract,  1227. 

b.  Actions  for  Tort,  1228. 

(2)   For  Personal  Injuries,  1228. 

(a)  In  General,   1228. 

(b)  Death  by  Wrongful  Act,  1228. 

c.  Actions  Affecting  Title  to  Real  Estate,  1228. 

in.  In  Criminal  Actions,  1228. 

A.  In  General,  1228. 

B.  In  Federal  Courts,  1228. 

1.  Crimes  Committed  within  a  State  or  District,   1228. 

a.  In  General,  1228. 

3.  Crimes  Committed  Partly  in  One  and  Partly  in  Another  District, 

1229. 

CROSS  REFERENCES. 

See  the  title  VenuE,  vol.  11,  p.  909,  and  references  there  given. 

In  addition,  see  ante.  Appearances,  p.  144;  Constitutionae  Law,  p.  264; 
Death  by  Wrongful  Act,  p.  456;  Executors  and  Administrators,  p.  564; 
Foreign  Corporations,  p.  584;  Removal  op  Causes,  p.  1058. 

As  to  jurisdiction  generally,  see  ante.  Courts,  p.  398.  As  to  transfer  of  ju- 
risdiction from  one  district  to  another,  see  ante,  Criminal  Law,  p.  434. 

II.  In  Civil  Actions. 

A.  Actions  at  Law — 1.  In  Federal  Courts — b.  Under  Statute. — See  notes 
8,  17.     An  action  may  be  maintained  against  a  corporation  created  by  congress 

900-3b.       Circumstances      under      which  come  of  a  conspiracy  and  combination  in 

vendor    can   not    claim   damages    for   dis-  restraint  of  interstate  trade,  unlawful  both 

possession. — World's    Fair    Min.     Co.      v.  at   common   law   and   under    the      federal 

Powers,   224  U.   S.   173,   56   L.   Ed.   717,  32  statutes,   is   one   in  which   the   jurisdiction 

S.  Ct.  453.  of  the  federal  court  is  not  invoked  solely 

910-8.  Venue — Federal  courts. — West-  upon  the  ground  of  diversity  of  citizen- 
more  V.  Tennessee  Copper  Co.,  218  U.  S.  ship,  and  can  therefore  not  be  brought  in 
369,  54  L.  Ed.  1073,  31  S.  Ct.  84;  Ladew  a  federal  district  in  which  none  of  the 
V.  Tennessee  Copper  Co.,  218  U.  S.  357,  defendants  reside,  in  view  of  the  provision 
54  L.   Ed.   1069,   31   S.   Ct.   81.  of  Act   Aug.   13,   1888,   c.   866,   25   Stat    433 

A   suit  by  resident   shippers   to   restrain  (U.    S.    Comp.    St.    1901,   p.    508),    that    no 

foreign    interstate    carriers    from    putting  civil    suit   shall   be   brought   in    any   other 

into  effect  a  proposed  advance  in   freight  district   than   that   whereof   the    defendant 

rates  which  is  averred  to  be  an  "arbitrary  is   an   inhabitant,   but,   where   the   jurisdic- 

and  unlawful  exaction,"  and  to  be  the  out-  tion  is  founded  only  on  the  fact  that  the 

1226 


Vol.  XI. 


VENUE. 


911-912 


in  the  district  where  its  president  lives  and  the  corporation  maintains  its  offi- 
cers.^^* 

3.  In  Particular  Actions — a.  Actions  on  Contract. — The  restriction  as  to 
the  place  of  suit  when  persons  holding  unpaid  demands  for  labor  or  materials 
bring  an  action  in  the  name  of  the  United  States,  on  the  bond  of  a  public  con- 
tractor, given  conformably  to  an  act  of  congress,  to  the  federal  court  for  the  dis- 
trict in  which  the  contract  is  to  be  performed,  and  not  elsewhere,  governs  as  well 
where  the  action  is  brought  by  the  United  States  against  the  principal  and  surety 
on  the  bond,  for  the  failure  to  pay  certain  designated  subcontractors  for  labor  and 
materials  used  in  the  construction  of  the  work.^*^^  The  act  does  not  apply  where 
the  contract  with,  and  the  bond  to,  the  United  States,  and  the  contract  under 
which  the  labor  and  material  were  furnished,  antedate  the  passage  of  the  act.^o'^ 


action  is  between  citizens  of  different 
states,  suit  shall  be  brought  only  in  the 
district  of  the  residence  of  either  the 
plaintiff  or  the  defendant.  Decree,  At- 
lantic Coast  Line  R.  Co.  v.  Macon  Gro- 
cery Co.  (C.  C.  A.  lOOrt ),  166  F.  20G,  af- 
firmed. Macon  Grocery  Co.  f.  Atlantic, 
etc.,   R.   Co.,  215    U.   S.  501.   54  L.   Kd.  300, 

30  S.   Ct.  184. 

911-17.  Waiver  of  Objections. — The 
objection  that  a  suit  in  a  federal  circuit 
court  between  citizens  of  different  states 
is  not  brought  in  the  proper  district  is 
waived  demurring  and  answering  without 
raising  that  question.  Decree,  Coran  r. 
Ingersoll  (1906),  148  Fed.  169,  78  C.  C. 
A.  303,  reversed.  Ingersoll  z\  Coram. 
211  U.S.  335,  53   L.Ed.  208.  29   S.   Ct.  92. 

Making  up  the  issues  on  the  merits 
without  objection  waives  the  right  to 
object,  because  of  the  nonresidence  of 
both  parties  within  the  district,  to  the 
jurisdiction  of  a  federal  circuit  court  to 
which  the  cause  has  been  removed  from 
the  state  court  for  diverse  citizenship, 
ludgment  (1907).  152  F.  120.  81  C.  C.  A. 
338,  11  L.  R.  A.  CN.  S.),  684,  reversed. 
Kreigh  f.  Westinghouse.  etc.,  Co..  214 
U.    Sr  249.   53   L.   Ed.   984.   29   S.   Ct.   619. 

Presence  of  one  of  several  defendants. 
— The  presence  of  one  of  the  defendants 
in  the  federal  district  in  which  suit  by 
the  United  States  under  the  Antitrust 
Act  July  2,  1890.  c.  647,  §  4,  26  Stat.  209 
(U.  S.  Comp.  St.  1901.  p.  3201),  is 
brought  to  restrain  violation  of  that  act 
justifies  the  court  in  making  an  order 
under  §  5  for  the  service  of  process  upon 
all  the  other  defendants,  wherever  they 
may  be  found.  Standard  Oil  Co.  z'. 
United  States.  221  U.  S.  1.  55   L.   Ed.  619. 

31  S.  Ct.  .502.  aflfirming  judgment  (C.  C. 
1909).  United  States  z:  Standard  Oil  Co. 
of  New  Jersey-.  173   F.   177. 

911-18a.  Actions  by  or  against  corpo- 
rations.— A  corporation  created  by  an  act 
of  congress  which,  having  designated 
Dallas.  Texas,  where  its  senior  vice  presi- 
dent lives,  as  its  general  office,  maintains 
an  office  in  Dallas  county,  and  has  all 
the  acts  of  its  board  of  directors  taken  in 
New  York  City  affirmed  by  a  meeting  of 
the    board    at    Dallas,    is    suable     in      the 


Northern  district  of  Texas,  under  Act 
March  11,  1902,  c.  183,  32  Stat.  68  (U.  S. 
Comp.  St.  Supp.  1907,  p.  163),  and  Tex. 
Sayles'  Ann.  Civ.  St.  1897,  arts.  1222, 
1223,  as  being  a  resident  of,  and  doing 
business  in,  that  district,  and  having  an 
agent  there  upon  whom  service  can  prop- 
erly be  made.  In  re  Dunn.  212  U.  S.  374, 
53  L.  Ed.  558,  29  S.  Ct.  299. 

912-20a.  Action  on  contracts. — The 
limitation  to  the  federal  circuit  court  of 
the  district  wherein  a  contract  for  a  pub- 
lic work  is  to  be  performed  of  an  action 
brought  by  the  United  States  against  the 
principal  and  sureties  on  the  bond  of  a 
public  contractor,  given  conformably  to 
Act  Feb.  24,  1905,  c.  778,  33  Stat.  811  fU. 
S.  Comp.  St.  Supp.  1909,  p.  948).  amend- 
ing Act  Aug.  13.  1894,  c.  280.  28  Stat.  278 
(U.  S.  Comp.  St.  1901.  p.  2523),  for  his 
failure  to  pay  certain  designated  subcon- 
tractors for  labor  and  materials  used  in 
construction,  operates  pro  tanto  to  dis- 
place the  provisions  upon  that  subject  in 
General  Jurisdictional  Act  Aug.  13.  1888. 
c.  866.  §  1.  25  Stat.  433  (U.  S.  Comp.  St. 
1901.  p.  508"),  and  amply  authorizes  the 
circuit  court  for  the  district  wherein  the 
action  is  required  to  be  brought  to  ob- 
tain jurisdiction  of  the  persons  of  the  de- 
fendants through  the  service  upon  them 
of  its  process  in  vx^hatever  district  they 
may  be  found.  United  States  z\  Congress 
Constr.  Co.,  222  U.  S.  199,  56  L.  Ed.  163. 

32  S.    Ct.    44. 

912-20b.  Contract  antedating  act. — 
The  provisions  as  to  the  proper  district 
for  suit  on  the  bond  of  a  public  con- 
tractor made  by  Act  Feb.  24,  1905.  c.  778. 

33  Stat.  811  CU  S.  Comp.  St.  Supp.  1907. 
p.  709),  amendine  Act  Aug.  13.  1894,  c. 
280.  28  Stat.  278  CU.  S.  Comp.  St.  1901.  p. 
2523),  for  the  protection  of  persons  fur- 
nishinsr  materials  and  labor  for  the  con- 
struction of  a  public  work,  do  not  apply 
where  the  contract  with,  and  the  bond 
to.  the  governmert.  and  the  contract  un- 
der which  the  labor  and  materials  were 
furnished,  all  antedate  the  passage  of  the 
pmendaiorv  ?cj.  Davidson  Bros.  Marble 
Co.  z:  United  States,  213  U.  S.  10,  53  L. 
Ed.    675.    29    S.    Ct.    324. 

A   suit   brought   in    the     name     of     the 


12 


912-914 


VBNUB. 


Vol.  XI. 


b.  Actions    for    Tort — (2)    For    Personal    Injuries — (a)    In    General. — See 
note  23. 

(b)    Death  by  Wrongful  Act. — See  note  24. 

c.  Actions  Affecting  Title  to  Real  Estate. — See  note  30. 

in.  In  Criminal  Actions. 

A.  In  General. — See  note  43. 

B.  In  Federal  Courts — 1.  Crimes  Committed  within    a    State  or  Dis- 
trict— a.   In  General. — See   note  46.      The   constitution   does   not   give  the   ac- 


United  States  under  Act  Aug.  13,  1894,  c. 
280,  28  Stat.  278  (U.  S.  Comp.  St.  1901, 
p.  2523),  on  the  bond  of  a  public  con- 
tractor, for  the  benefit  of  a  person  fur- 
nishing materials  and  labor  for  the  con- 
struction of  a  public  work,  is  governed 
by  that  part  of  Act  March  3,  1887,  c.  373, 
24  Stat.  552,  as  corrected  by  Act  Aug.  13, 
1888,  c.  866,  25  Stat.  433  (U.  S.  Comp.  St. 
1901,  p.  508),  which  provides  that  no  civil 
suit  shall  be  brought  before  any  federal 
circuit  court  "against  any  person,  by  any 
original  process  or  proceeding,  in  any 
other  district  than  that  whereof  he  is  an 
inhabitant."  Davidson  Bros.  Marble  Co. 
V.  United  States.  213  U.  S.  10,  53  L.  Ed. 
675,   29   S.   Ct.   324. 

912-23.  Action  for  personal  injury. — 
Price  V.  Henkel,  216  U.  S.  488,  54  L.  Ed. 
581,    30    S.    Ct.   257. 

An  action  for  personal  injuries  is  uni- 
versally held  to  be  transitory,  and  main- 
tainable wherever  a  court  may  be  found 
that  has  jurisdiction  of  the  parties  and 
the  subject  matter.  Undoubtedly,  where 
the  cause  of  action  is  created  by  the  state, 
as  is  the  action  to  recover  for  death  by 
wrongful  injury,  there  is  no  objection  to 
the  enforcement  of  the  law  because  it 
arose  in  another  jurisdiction.  Atchison, 
etc.,  R.  Co.  V.  Sowers.  213  U.  S.  55,  67, 
53    L.    Ed.   695,   29    S.   Ct.   397. 

"It  is  then  the  settled  law  of  this  court 
that  in  such  statutory  actions  the  law  of 
the  place  is  to  govern  in  enforcing  the 
right  in  another  jurisdiction,  but  such 
actions  may  be  sustained  in  other  juris- 
dictions when  not  inconsistent  with  any 
local  policy  of  the  state  wherein  the  suit 
is  brought."  Atchison,  etc.,  R.  Co.  v. 
Sowers,  213  U.  S.  55,  67.  53  L.  Ed.  695. 
29   S.    Ct.   397. 

912-24.  Death  by  wrongful  act. — Atchi- 
son, etc.,   R.   Co.   V.  Sowers,  213   U.   S    55 

53  L.    Ed.   695,   29    S.    Ct.   397. 

913-30.  Actions  affecting  title  to  real 
estate. — Wetmore  v.  Tennessee  Copper 
Co.,  218  U.  S.  369,  54  L.  Ed.  1073,  31  S. 
Ct.   84;   Stewart  v.   Griffith,  217  U.   S.   323 

54  L.   Ed.   782,   30   S.    Ct.   528. 

The  asserted  right  of  citizens  of  New 
York  and  West  Virginia,  as  owners  of 
timber  lands  in  Georgia,  near  the  Ten- 
nessee boundary  line,  to  protection 
against    the    destruction    of    their    forests 


by  the  discharge  of  deleterious  fumes 
and  gases  from  the  works  of  a  Xew  Jer- 
sey corporation  situated  within  the  ter- 
ritorial jurisdiction  of  the  federal  circuit 
for  the  eastern  district  of  Tennessee,  is 
not  a  claim  to  real  property  within  the 
district,  within  the  meaning  of  Act 
March  3,  1875,  c.  137,  §  8,  18  Stat.  472  (U. 
S.  Comp.  St.  1901,  p.  513),  providing  for 
bringing  in  absent  defendants  in  local  ac- 
tions, so  as  to  confer  jurisdiction  upon 
that  court  over  the  New  Jersey  corpora- 
tion, which  refuses  to  appear  voluntarily 
in  the  suit  as  a  defendant.  Ladew  v.  Ten- 
nessee Copper  Co.,  218  U.  S.  357,  54  L. 
Ed.  1069,  31  S.  Ct.  81,  affirming  decree 
(C.    C.)    179   F.   245. 

914-43.  In  criminal  cases. — The  federal 
district  court  at  Paris,  Tex.,  can  not  be 
said  to  have  been  without  jurisdiction  to 
try  a  member  of  the  Choctaw  and  Chicka- 
saw Nation  charged  with  homicide,  be- 
cause the  order  of  the  United  States 
court  in  the  Indian  territory,  changing 
the  venue,  pursuant  to  Act  June  28,  1898, 
c.  517,  §  29.  30  Stat.  511,  did  not  state 
whether  the  cause  was  transferred  to  the 
federal  district  or  circuit  court,  but  only 
to  the  "United  States  court"  at  that 
place,  where  the  district  court  was  the 
only  court  to  which  the  case  could  have 
been  removed  under  the  statute,  and  the 
record  was  transferred  to  and  filed  in 
that  court,  and  the  case  was  tried  there. 
Hendrix  v.  United  States,  219  U.  S.  79. 
55    L.    Ed.   102,   31    S.    Ct.    193. 

914-46.  Crimes  committed  in  state  or 
district. — Haas  v.  Henkel,  216  U.  S.  462, 
54   L.    Ed.   569.   30   S.    Ct.   249. 

The  requirement  that  the  prosecution 
of  crimes  against  the  United  States  be 
had  in  the  state  or  district  where  the  of- 
fense was  committed,  which  is  made  b}"^ 
Const.  U.  S.,  amendment  six,  is  not  vio- 
lated by  the  provision  of  Elkins  Act 
Feb.  19,  1903,  c.  708.  32  Stat.  847  (U.  S. 
Comp.  St.  Supp.  1907,  p.  880),  under 
which  the  offense  of  obtaining  transpor- 
tation of  goods  from  Kansas  City  to 
New  York  City  at  less  than  the  carrier's 
published  rates  may  be  tried  in  any  fed- 
eral district  through  which  such  trans- 
portation was  conducted.  Armour  Pack- 
ing Co.  V.  United  States.  209  U.  S.  56,  52 
L.  Ed.  681.  28  S.  Ct.  428,  affirming  judg- 
ment   C1907),    153    F.    1,    82    C.    C.    A.    135; 


1228 


^'ol.  XL  VERDICT.  914-916 

ciised  the  right  to  be  tried  in  the  district  in  which  he  resides.-*"* 

3.    Crimes  Committed  Partly  in  One  and  Partly  in  Another  District. 
— See  note  39. 

VERBAL  ACTS.— See  note  a. 

VERBAL  AGREEMENTS.— See  ante.  Frauds,  Statute  of,  p.  600. 
VERBAL  CONTRACTS.— See  ante.  Contracts,  p.  Z7Z\    Frauds,  Statute 
OF,  p.  600. 


VERDICT. 


II.  Finding  Verdict,  1229. 
B.  DeHberation.    1229. 


ni.  General  Verdict,  1230. 

C.  A'alidity,  1230. 

4.  Evidence  of  Invahdity,  1230. 

VIII.  Special  Interrogatories,  1230. 

X.  Directing  Verdict,   1230. 

D.  Motion  to  Direct,  1230. 

2.  Motion  by  Both  Parties,  1230. 

E.  \\'hen   A'erdict  Directed,   1230. 

1.  In  Civil  Cases,  1230. 

c.  \\'here  Evidence  Conclusive,   1230. 
j.  In  Action  for  Penalty,  1231. 

CROSS  REFERENCES. 

See  the  title  \'erdict,  vol.  11,  p.  917,  and  references  there  given. 

II.  Finding  Verdict. 

B.  Deliberation. — Where,  in  a  criminal  case,  after  the  jury  had  deHberated 
for  three  days  the  judge  informs  them  that  they  may  find  some  of  the  several 
defendants  guilty  and  others  not  guilty,  under  the  instruction  that  the  law  would 

Chicago,    etc.,    R.    Co.    v.    United    States,  Co.   v.   United   States,  209   U.   S.   56.   52   L. 

S09  U.   S.  90.  52  L.   Ed.  698,  28  S.   Ct.  439.  Ed.  681,  28  S.  Ct.  428.  affirming  judgment, 

affirming   judgment    (C.    C.   A.    1907).    157  (1907),    153    F.    1,    82    C.    C.    A.    135:    Chi- 

F.   S30.  cago,    etc.,    R.    Co.    v.    United    States,    209 

914-47a.    Haas  v.   Henkel.  216  U.   S.  462,  U.   S.  90.   52   L.   Ed.   698.  28  S.   Ct.   439,  af- 

54  L.    Kd.   569.   30   S.   Ct.  249.  firming  judgment    (C.   C.   A.   1907).   157    F. 

916-59.     Crime     committed      partly      in  830. 

more    than     one     jurisdiction — Haas      i'.  916-a.    Boycott. — In  the  case  of  an  un- 

Henkel.   216   U.   S.   462,   54   L.   Ed.   569,   30  lawful    conspiracy,    the    agreement    to    act 

S.  Ct.  249;  Price  v.  Henkel,  216  U.  S.  488,  in   concert   when   the   signal   is   published, 

54  L.   Ed.  581,  30  S.  Ct.  257.  gives   the   word   "Unfair,"  "We   don't  pat- 

The  offense  of  obtaining  transportation  ronize,"    or    similar     expressions,    in    the 

of  property  in  interstate  or  foreign  com-  list   published    for   purpose    of   boycott,    a 

merce  at  less  than  the  carrier's  published  force    not    inhering    in    the    words    them- 

rates,    created    by    Flkins    Act     Feb.      19,  selves,   and   therefore   exceeding  any  pos- 

1903,  c.  708.  32  Stat.  847   (U.  S.  Comp.  St.  sible    right    of   speech    which    a    single    in- 

Supp.  1907.  p.  880),  is  made  triable  in  any  dividual    might    have.      Under    such    cir- 

federal  district  through  which  such  trans-  cumstances   they  become   what  have  been 

portation  is  had  by  the  provision   of  that  called    verbal   acts,    and    as    much    subject 

act    that    violations    shall    be    prosecuted  to    injunction    as    the    use    of    any    other 

in  any  court  of  the  United   States  having  force    whereby     property      is      unlawfully 

iurisdiction    of   crimes   within   the    district  damatred.      Gompers   7'.    Buck    Stove,    etc., 

in    which    such    violation    was    committed.  Co.,  221  U.   S.   418,  439,  .'55   L.   Ed.  797.  31 

or  through  which  the  transportation  mav  S.   Ct.   492.      vSee   ante.   CONSPTR.-XCY.   p. 

have    been    conducted.     Armour    Packing  256;   INJUNCTIONS,  r-  657. 

1229 


919-933 


VERDICT. 


Vol.  XL 


not  recognize  a  coerced  verdict,  the  verdict  is  not  invalid  because  coerced  by  the 
judge.^^ 

III.   General  Verdict. 

C.  Validity — 4.  Evidence  of  Invalidity. — The  verdict  of  a  jury,  convicting 
two  of  the  four  defendants  on  trial  for  criminal  conspiracy,  and  acquitting  the 
others,  can  not  be  impeached  by  the  testimony  of  the  jurors  tending  to  show  that 
such  verdict  was  the  result  of  a  bargain,  or  was  induced  by  coercion  from  the 
court. 41^ 

VIII,  Special  Interrogatories. 

The  court  need  not  require  the  jury  to  answer  a  special  interrogatory  which 
inquires  into  a  fact  only  incidental  to  the  issue,  and  which  was,  besides,  unde- 
fined and  uncertain  as  to  time.^^* 

X.  Directing  Verdict, 

D.  Motion  to  Direct — 2.  Motion  by  Both  Parties. — See  note  27. 

E.  When  Verdict  Directed — 1.  In  Civil  Cases — c.  Where  Evidence  Con- 
clusive.— See  note  40. 


919-6a.  Deliberation. — The  verdict  in  a 
prosecution  for  a  criminal  conspiracy  can 
not  be  said  to  have  been  coerced  be- 
cause, after  a  long  trial  during  which  the 
jurors  were  not  allowed  to  separate,  and, 
after  deliberation  for  three  days  and 
nights  without  result,  they  were  in- 
structed without  objection  to  consider 
the  possibility  of  the  guilt  of  some  of  the 
defendant's,  following  which  suggestion 
they  shortly  thereafter  brought  in  a  ver- 
dict of  guilty  as  to  two  of  the  four  de- 
fendants, and  not  guilty  as  to  the  others, 
the  court  saying,  when  giving  such  in- 
structions, that  the  law  would  not  rec- 
ognize a  coerced  verdict,  and  that  it 
was  not  his  intention  to  prolong  their 
deliberations  unduly,  and  that  if,  after 
another  effort,  they  could  not  conscien- 
tiously and  freely  agree  upon  a  verdict, 
they  would  be  discharged.  Hyde  v. 
United  States,  225  U.  S.  347,  56  L.  Ed. 
1114,  32   S.   Ct.   793. 

923-41a.  Evidence  of  invalidity. — Hyde 
V.  United  States.  225  U.  S.  347,  56  L.  Ed. 
1114,  32   S.   Ct.  793. 

930-14a.  Special  interrogatories.— Judg- 
ment, 17  Okl.  344,  87  Pac.  311,  affirmed. 
Drumm-Flato  Comm.  Co.  v.  Edmisson. 
208  U.   S.  534,  52   L.  Ed.  606,  28  S.   Ct.  367. 

931-27.  Motion  by  both  parties. — A 
judgment  entered  on  a  verdict  directed 
by  the  court  after  both  parties  had 
moved  for  such  direction  must  stand  un- 
less the  court's  ruling  is  wrong  as  a  mat- 
ter of  law.  (1911)  Sena  v.  American  Tur- 
quoise Co.,  220  U.  S.  497,  55  L.  Ed.  559, 
31  S.  Ct.  488,  affirming  judgment  (1908), 
98   P.   170,   14   N.   M.   511. 

The  request  by  both  parties  for  per- 
emptory instructions  in  their  favor  does 
not  amount  to  a  submission  of  the  facts 
to  the  court,  so  as  to  exclude  the  right 
of  the  plaintiffs   to  have   the   case    go  to 


the  jury  in  accordance  with  subsequent 
special  requests  asked  on  their  behalf. 
Judgments  (1906),  147  F.  457.  77  C.  C.  A. 
601,  and  147  F.  463.  77  C.  C.  A.  607,  af- 
firmed. Empire  State  Cattle  Co.  v.  Atchi- 
son, etc.,  R.  Co.,  210  U.  S.  1,  52  L.  Ed. 
931,  28   S.   Ct.   607. 

A  party  may  request  a  peremptory  in- 
struction, and  yet,  upon  refusal  of  the 
court  to  give  it,  insist  by  appropriate  re- 
quests, upon  the  submission  of  the  case 
to  the  jury  where  the  evidence  is  con- 
flicting or  the  inferences  to  be  drawn 
therefrom  are  divergent.  To  hold  the 
contrary  would  unduly  extend  the  doc- 
trine of  Beuttell  v.  Magone,  157  U.  S. 
154,  39  L.  Ed.  654,  by  causing  it  to  em- 
brace a  case  not  within  the  ruling  of  that 
case.  Empire  State  Cattle  Co.  v.  Atchi- 
son, etc.,  R.  Co.,  210  U.  S.  1,  52  L.  Ed. 
931,  28  S.  Ct.  607. 

933-40.  Where  evidence  conclusive. — 
Hepner  v.  United  States.  213  U.  S.  103, 
53  L.  Ed.  720,  29  S.  Ct.  474. 

"The  validity  of  the  peremptory  in- 
struction must  depend  upon  whether  the 
evidence  was  so  undisputed  or  was  of 
such  a  conclusive  character  as  would  have 
made  it  the  duty  of  the  court  to  set  aside 
the  verdicts  if  the  cases  had  been  given 
to  the  ji;ry  and  verdicts  returned  in  favor 
of  the  plaintiff."  Empire  State  Cattle  Co. 
V.  Atchison,  etc.,  R.  Co..  210  U.  S.  1,  10, 
52    L.    Ed.   931,   28    S.    Ct.   607. 

A  peremptory  instruction  is  properly 
given  on  behalf  of  the  carrier  in  an  ac- 
tion against  it  to  recover  for  a  loss  to  a 
shipment  of  cattle,  alleged  to  have  been 
occasioned  by  its  negligence,  where  the 
undisputed  evidence  is  of  such  a  char- 
acter as  would  make  it  the  duty  of  the 
court  to  set  aside  the  verdict  if  the  case 
had  been  given  to  the  jury,  and  the  ver- 
dict   rendered    in    favor    of    the    plaintiffs. 


1230 


Vol.  XI.  WAIVER  AND  ABANDONMENT.  935-936 

j.  In  Action  for  Penalty. — An  action  for  debt  brought  by  the  United  States  to 
recover  a  penalty  under  the  act  of  congress  regulating  the  immigration  of  aliens 
into  this  country  is  a  civil  action,  and  the  government  is  entitled  to  a  peremptory 
instruction  in  its  favor,  where  the  undisputed  testimony  leaves  no  facts  for  the 
jury  to  consider  but  established  beyond  all  question  and  as  a  matter  of  law  the 
government's  right  to  the  prescribed  penalty.-*"^ 

VESSEL. — See  ante,  Admiralty,  p.  10;  Collision,  p.  243;  Ships  and 
Shipping,  p.  1096;    post,  Working  Contracts. 

VESTED.— See  note  la. 

VESTED  REMAINDERS.— See  ante.  Remainders,  Revt^rsions  and  Exec- 
utory Interests,  p.  1057. 

VESTED  RIGHTS.— See  ante,  Constitutional  Law,  p.  264;  Impairment 
OF  Obligation  of  Contracts,  p.  624. 

VEXATIOUS  LITIGATION,— See  ante,  Multiplicity  of  Suits,  p.  894. 

VOLUNTARY  BANKRUPTCY.— See  ante,  Bankruptcy,  p.   168. 

VOLUNTARY  CONFESSIONS.— See  ante,  Confessions,  p.  249. 

VOLUNTARY  CONVEYANCES.— See  ante.  Fraudulent  and  Voluntary 
Conveyances,  p.  600. 

VOTING  TRUSTS.— See  the  title  Voting  Trusts,  vol.  11,  p.  938,  and  ref- 
erences there  given.     In  addition,  see  ante,  Cross  Bills,  p.  453. 

VOYAGES.— See  ante.  Freight,  p.  604. 

WAIVER  AND  ABANDONMENT.— See  the  title  Waiver  and  Abandon- 
ment, vol.  11,  p.  938,  and  references  there  given.  In  addition,  see  ante,  Ex- 
ecutors and  Administrators,  p.  564;  Grand  Jury,  p.  609;  Removal  of 
Causes,  p.  1058.  As  to  waiver  of  error  by  trial  court  in  overruling  demurrer 
to  evidence,  see  ante,  Appeal  and  Error,  p.  34.  As  to  review  of  question 
whether  railway  companies  waive  their  charter  rights  to  change  the  line  of  a 
narrow-gauge  road,  see  ante.  Railroads,  p.  1046.  As  to  waiver  of  objection 
that  a  particular  federal  circuit  court  is  without  jurisdiction  of  a  suit  between 
citizens  of  different  states  because  neither  of  the  parties  is  a  resident  of  the 
district,  see  ante,  Venue,  p.  1226. 

Tudgments   (1906),  147  F.  457.  77  C.   C.  A.  213    U.    S.    103.    115.    53    L.    Ed.    720,    29    S. 

601,    and   147    F.   463,   77    C.    C.   A.    607,   af-  Ct.   474. 

firmed.     Empire  State  Cattle  Co.  v.  Atchi-  936-la.     Vested    interests. — In    the    Act 

son,   etc.,    R.    Co.,   210   U.    S.   1,    52   L.    Ed.  of  June  27,  1902,  c.  1160,  §  3,  32  Stat.  406, 

931.  28  S.  Ct.  607.  which    provides    for    refunding    "so    much 

935-47a.  In  action  for  penalty. — Hep-  of  succession  taxes  as  may  have  been  coi- 
ner V.  United  States,  213  U.  S.  103,  53  L.  lecled  on  contingent  beneficial  interests 
Ed.  720.  29  S.  Ct.  474,  decided  under  the  which  shall  not  have  become  vested  prior 
.\ct  of  March  3,  1903.  to  July  first,  nineteen  hundred  and  two," 

"The  defendant  was,  of  course,  entitled  the  words  "which  shall  not  have  become 

t'j   have    a   jury    summoned   in    this    case,  vested,"  quoted  above,  mean  the  same  as 

but  that   right  was   subject  to  the   condi-  "absolutely  vested  in  possession  or  enjoy- 

tion,  fundamental  in  the  conduct  of  civil  ment"  in  a  later  clause  ending  the  tax  on 

actions,    that    the    court    may   withdraw    a  contingent   interests   unless   so  vested  be- 

case   from   the  jury  and    direct  a  verdict,  fore   July  1,   1902.       United   States  v.   Fi- 

accordino    to    the    law,    if   the    evidence    is  dolity  Trust  Co.,  222  U.  S.  158,  159,  56  L. 

uncontradicted    and    raises    only    a    ques-  Ed.  137,  32  S.  Ct.  59.     vSee  ante,  SUCCES- 

tion    of  law."      Hepner   v.   United   Stales,  SION  TAXES,  p.   1149. 

1231 


948-960  WAR.  Vol.  XL 


WAR. 

V.  Effect  of  War  upon  the  Status  of  Individuals,  1232. 
A.  In  General,   1232. 

VII.  Conquest  of  Territory  and  the  Government  Thereof,  1232. 
F.  Government  of  Conquered  Territory,  1232. 

2.  Government  of  Territory  Conquered  by  the  United  States,  1232. 
a.  In  General,  1232. 

VIII.  Capture  and  Confiscation  of  Property,  1232. 

D.  What  Property  Subject  to  Capture  and  Confiscation,  1232. 
1.  In  General,  1232. 

CROSS  REFERENCES. 

See  the  title  War,  vol.  11,  p.  941,  and  references  there  given. 

In  addition,  see  ante.  Courts,  p.  398;  International  Law,  p.  686. 

V.  Effect  of  War  upon  the  Status  of  Individu.als. 

A.  In  General. — See  note  40. 

VII.    Conquest   of  Territory   and  the    Government   Thereof. 

F.  Government  of  Conquered  Territory — 2.  Government  of  Territory 
Conquered  by  the  United  States — a.  hi  General. — The  civil  government  of 
the  United  States  can  not  extend  immediately,  and  of  its  own  force,  over  terri- 
tory acquired  by  war.  Such  territory  must  necessarily,  in  the  first  instance,  be 
governed  by  the  military  power  under  the  control  of  the  president  as  commander 
in  chief. ^^^  The  military  power  includes  the  authority  to  establish  courts  of  jus- 
tice.^s'' 

VIII.  Capture  and  Confiscation  of  Property. 

D.  What  Property  Subject  to  Capture  and  Confiscation — 1.  In  Gen- 
eral.— See  note  56. 

948-40.     Who    are    enemies     in     war. —  der    the    Spanish    sovereignty    were    open. 

Turagua    Iron'   Co.    v.    United    States,    213  Santiago   v.    Nogueras,    214   U.    S.    260,    53 

U.   S.  297,  53   L.   Ed.  520,  29  S.  Ct.  3S5.  L.   Ed.  989,  29   S.   Ct.  608. 

958-28a.     Government   of   territory   con-  960-56.     Status    of    owner   immaterial. — 

quered   by   the    United    States. — Santiago  Juragua    Iron    Co.    v.    United    States,    212 

r.   Nogueras,  214  U.   S.  260,  53  L.   Ed.  989,  U.  S.  297,  53   L.  Ed.  520,  29  S.  Ct.  385,  af- 

29    S.    Ct.   608.  firming   42    Ct.    CI.    99.  i 

958-28b.     Military    power    includes    au-  "An  American  corporation,  doing  busi- 

thority    to    establish    courts    of    justice. —  ness   in   Cuba,   was,   during   the   war   with 

Santiago   v.    Nogueras,    214   U.    S.   260,   53  Spain,    to    be    deemed    an    enemy    to    the 

L.     Ed.     989,     29     S.    Ct.    608.      See    ante,  United    States    with    respect    of   its    prop- 

MILITARY   LAW,   p.   862.  erty   found   and   then    used   in    that    coun- 

The  creation  of  the  United   States  pro-  try,  and  such  property  could  be  regarded 

visional    court    for    Porto    Rico    between  as   enemy's   property,   liable    to   be    seized 

April    11,    1899,    when    the    ratifications    of  and   confiscated   by   the    United    States   in 

the  treaty  of  peace  by  which   Porto  Rico  the    progress    of    the     war      then      being 

was  ceded  to  the  United  States  were  ex-  prosecuted;    indeed,    subject,     under      the 

changed,   and   May  1,   1900,  when  the   Act  laws    of   war,    to   be    destroyed   whenever, 

of  April  12,  1900   (31  Stat,  at  L.  77,  chap.  in   the   conduct   of  military   operations,  its 

191),    establishing    a    civil    government    in  destruction   was   necessary   for   the   safety 

Porto    Rico,    took   effect,   was   within    the  of  our  troops  or  to  weaken  the  power  of 

scope    of   the    military    power,    acting    by  the  enemy."     Juragua  Iron  Co.  v.  United 

the    authority    of    the    president    as    com-  States.  212  U.  S.  297,  53  L.  Ed.  520,  29  S. 

mander    in    chief,    although     peace      then  Ct.   385. 
prevailed,   and  the   courts  established  un- 

1232 


Vol.  XL'  WATER  COMPJXIES  AXD   WATERWORKS. 

WARD. — See  ante,  Guardian  and  Ward,  p.  611. 

WAREHOUSES  AND  WAREHOUSEMEN.— See  the  title  Warehouses 
AND  Warehousemen,  vol.  11,  p.  970,  and  references  there  given.  And  as  to 
the  right. of  a  state  to  tax  German  warehouse  receipts,  see  ante,  Taxation,  p. 
1156. 

WARRANTS. — See  the  title  Warrants,  vol.  11,  p.  9/3,  and  references  there 
given. 

WARRANTY. — See  the  title  Warranty,  vol.  11,  p.  974,  and  references  there 
given. 

WAR  REVENUE  ACT.— See  ante.  Revenue  Laws,  p.  1071. 

WASTE. — See  the  title  Waste,  vol.   11,  p.  984.  and  references  there  given. 

WASTE— WASTING.— See  ante.  Revenue  Laws,  p.  1071. 

WATER  COMMISSIONERS.— See  post,  Waters  and  Watercourses. 


WATER  COMPANIES  AND  WATERWORKS. 
I.  Franchise,  Powers  and  Privileges,   1233. 

A.  Power  of  State  or  ^Municipality  to  Grant,  1233. 

2.  Exclusive  Franchise.  1233. 

II.  State  and  Municipal  Control,  1233. 

C.    Rights  and  Remedies  Where  Company  Fails  to  Discharge  Duties  Im- 
posed by  Charter  or  Contract,  1233. 
F.   Service    Connections,    1234. 

III.  Water  Rents,  1234. 

C.  Regulation  by  State  or  Municipality,  1234. 

3.  Reasonableness  of  Rates,  1234. 

a.  Judicial  Interference,  1234. 

d.   Basis   for  Calculating  Reasonableness  of   Rates,   1235. 
(23/2)    Capitalization,    1235. 
(3^)   Net  Income,   1235. 

(4)   Depreciation  of    Market    \'alue    and    Services  Ren- 
dered, 1235. 
(A-Yz)   Effect  of  a  Municipal  Ordinance,   1235. 

V.  Contract  Oblig-ation  to  Furnish  Water,  1235. 
VI.  Purchase  of  Waterworks  by  Municipalities,  1235. 

CROSS  REFERENCES. 

See  the  title  Water  Companies  and  Waterworks,  vol.  11.  p.  985,  and  ref- 
erences there  given. 

In  addition,  see  ante,  AppE.^l  and  Error,  p.  34;  Arbitration  and  Aw.\rd, 

As  to  the  right  to  an  injunction  against  the  enforcement  of  a  municipal  ordi- 
nance imposing  a  license  fee  upon  a  water  companv,  see  ante.  Injunctions, 
p.  657. 

I.  Franchise,   Powers  and  Privileges. 

A.  Power  of  State  or  Municipality  to  Grant — 2.  Exclusive  Franchise. 
— As  to  the  power  of  a  municipal  corj^oration  to  grant  an  exclusive  franchise 
to  a  water  company,  see  ante,  Muxicip.\l  Corporations,  p.  895. 

II.  State  and  Municipal  Control. 
C.    Rights  and  Remedies  Where  Company  Fails  to  Discharge  Duties 
Imposed  by  Charter  or  Contract. — A  municipality  has  the  right  to  treat  a 

12  U    S   Enc— 78  1233 


988-991         WATER  COMPANIES  AND  WATERWORKS.  Vol.  XI. 

contract  with  a  waterworks  company  as  terminated  by  the  latter's  breach  of  its 
contract  obHgation  to  furnish  a  continuous  adequate  supply  of  wholesome  water, 
and  to  invoke  the  aid  of  a  court  of  equity  to  enforce  its  rescission,  since  the 
remedy  at  law  by  an  action  for  damage  is.  wholly  inadequate. i'*^  The  accept- 
ance by  a  municipality  and  its  people  of  improved  conditions  in  a  waterworks 
system,  resulting  from  complaints,  does  not  estop  the  municipality  to  rescind 
the  contract  with  the  waterworks  company  for  a  breach  of  its  contract  obliga- 
tion to  furnish  an  adequate  supply  of  wholesome  water,  unless  such  improved 
conditions  result  in  the  continuous  maintenance  thereafter  of  such  a  supply. ^^^ 

The  maxim  that  "he  who  seeks  equity  must  do  equity"  does  not  justify 
a  court  in  denying  to  a  municipality  rescission  under  its  crossbill  of  a  contract 
with  a  waterworks  company  which  the  latter  has  broken  by  failing  to  maintain 
a  continuous  and  adequate  supply  of  wholesome  water,  and  in  affirmatively 
restraining  the  municipality  from  establishing  its  own  system  unless  it  shall 
do  equity  to  the  bondholders  of  the  waterworks  company  by  purchasing  the 
usable  parts  of  the  waterworks  system. ^^'^ 

F.  Service  Connections. — The  obligations  of  the  charter  of  a  water  com- 
pany are  not  unconstitutionally  impaired  by  construing  the  charter  in  the  light 
of  the  statute  law  and  the  decisions  of  the  courts  at  the  time  the  charter  was 
granted,  as  requiring  the  company  to  bear  the  cost  of  making  service  connec- 
tions.^^"^  Requiring  a  water  company,  upon  the  theory  of  an  implied  contract, 
to  bear  the  cost  of  making  the  service  connections  which  it  is  its  duty,  under 
its  charter,  to  make,  does  not  amount  to  confiscation  and  the  consequent  taking 
of  the  company's  property  without  due  process  of  law.^^**  A  clause  in  the 
charter  of  a  water  company  that  it  shall  not  be  required  to  extend  its  distribut- 
ing system  in  any  ungraded  street  is  not  unconstitutionally  impaired  by  requir- 
ing the  company  to  make  service  connections  to  residents  of  such  a  street  at  its 
own  expense,  where  it  has  voluntarily  laid  its  mains  in  the  street,  and  is  sup- 
plying water  therefrom. ^'^'^ 

III.  Water  Rents. 

C.  Regulation  by  State  or  Municipality — 3.  Reasonableness  of  Rates 
— a.  Judicial  Interference. — Judicial  interference  with  a  municipal  regulation 
of  water  rates  should  never  occur  unless  the  case  presents,  clearly  and  beyond 
all  doubt,  such  a  flagrant  attack  upon  the  rights  of  property  under  the  guise 
of  regulations  as  to  compel  the  court  to  say  that  the  rates  prescribed  will  neces- 
sarily have  the  effect  to  deny  just  compensation  for  private  property  taken  for 
the  public  use.^"^     But  in  a  clear  case  of  confiscation,  it  is  the  right  and  duty 

988-14a.    Right  of  municipality  to  treat  service    connections. — Consumers'    Co.    v. 

contract      as      terminated. — Columbus      v.  Hatch,   224   U.    S.   148,   56   L.    Ed.    703,   32 

Mercantile  Trust,  etc.,  Co.,  218  U.  S.  645,  S.   Ct.   465. 

54   L.   Ed.   1193,   31    S.   Ct.   105.      See   ante.  989-16d.     Consumers'    Co.   v.   Hatch,   224 

RESCISSION,   CANCELLATION  AND  U.  S.  148,  56  L.  Ed.  703,  32  S.  Ct.  465. 

REFORMATION,  p.  10(59  989-16e.    Consumers'    Co.   v.   Hatch,   224 

989-16a.      Facts      not      estoppmg      mu-  u.   S.  148,  56  L.   Ed.  703,  32  S.   Ct.  465. 

nicipality     from      rescinding      contract.-  gg^.^g^     j^^i^j^^  interference  with  mu- 

Columbus  V.   Mercantile    irust,   etc..    Co.,  „;^:^oi   ^^„,,i-,4.;^«    ^t  r-,*-^^      t^»i^^-,.;i1o  r, 

218   U.   S.   645,   54   L.   Ed.   1193    31   S.   Ct.  "icipal  regulation   of   ra  es.-Knoxv,  le  z;. 

.,„.                 .         .„^     T^   J     r)          inr        (-  Knoxville    Water    Co.,   212    U.    b.   1,   o3    L,. 

105'    reversing    161    Fed    Rep.    135.      See  g^,     g^^     39    g     ^t.    148. 

ante,    ESTOPPEL,   p.   553.  _          ^^  ^j^^    ^^^^^^    ^^^^^1^    ^^^    ^^j^i„    ^^^    ^^_ 

989-16b.  _  Effect  of  maxim  "he  who  j'orcement  of  a  municipal  ordinance  fix- 
seeks  equity  must  do  equity."— Colum-  i„g  maximum  water  rates  on  the  ground 
bus  V.  Mercantile  Trust,  etc.,  Co.,  218  U.  that  such  ordinance  is  invaUd  under 
S.  645,  54  L.  Ed.  1193,  31  S.  Ct.  105,  re-  Const.  U.  S..  14th  Amend.,  as  confisca- 
versing  161  Fed.  Rep.  135.  See  ante,  tory,  unless  the  confiscation  is  clearly  ap- 
MAXIMS,    p.    861.  parent.       Knoxville    7'.     Knoxville     Water 

989-16C.     Constitutionality     of     require-  Co.,  212  U.   S.  1,  53  L.   Ed.  371,  29   S.  Ct. 

ment  that  company  bear   cost  of  making  148. 

1234 


A^ol.  XI.  WATER  COMPANIES  AND  WATERWORKS.         991-994 

of  the  court  to  annul  such  regulations. ^^i' 

d.  Basis  for  Calailating  Reasonableness  of  Rates — (2^)  Capitalisation. — 
Capitalization  affords  no  guide  to  the  present  value  of  the  tangible  property 
of  a  waterworks  company  which  is  objecting  to  the  rates  fixed  by  municipal 
ordinance  as  confiscatory,  where  substantially  all  the  common  and  preferred 
stock  was  issued  under  construction  contracts  entered  into  with  persons  who 
controlled  the  corporate  action,  and  was  greatly  in  excess  of  the  true  value  of 
the  property  furnished  under  the  contracts.^^^ 

(3^)  Net  Income. — The  net  income  of  a  waterworks  company  during  the 
years  succeeding  the  passage  of  a  municipal  ordinance  fixing  maximum  water 
rates,  which  has  never  been  enforced,  should  be  considered  by  the  courts  in 
determining  the  reasonableness  of  such  rates.^^^ 

(4)  Depreciation  of  Market  Value  and  Services  Rendered. — A  deduction  for 
depreciation  from  age  and  use  must  be  made  from  the  estimated  cost  of  repro- 
ducing a  waterworks  plant  when  determining  the  present  value  of  the  tangible 
property  for  the  purpose  of  testing  the  reasonableness  of  the  rates  fixed  by 
a  municipal  ordinance.^^^  When  determining  the  value  of  the  tangible  property 
for  this  purpose,  depreciation  represented  by  the  destruction  or  obsolescence 
of  parts  of  the  original  plant  and  by  impairment  in  value  of  those  parts  which 
remain  in  existence  and  continue  in  use  can  not  be  added  to  the  present  value 
of  the  surviving  parts.-^^'' 

(4^)  Effect  of  a  Municipal  Ordinance. — The  absence  of  any  requirement 
in  a  municipal  ordinance  fixing  water  rates,  that  the  waterworks  company  shall 
continue  to  give  a  discount  for  prompt  payment,  must  be  taken  into  considera- 
tion when  determining,  for  the  purpose  of  testing  the  reasonableness  of  such 
rates,  the  reduction  in  the  company's  income  which  will  be  produced  by  the 
enforcement  of  such  ordinance.^^'^ 

V.    Contract  Obligation  to  Furnish  Water. 

The  continuing  character  of  a  waterworks  company's  contract  obligation  to 
furnish  an  adequate  supply  of  wholesome  water  is  not  met  by  showing  that 
such  supply  has  been  furnished  at  times,  or  that,  at  the  time  of  completion  ol 
the  works,  the  company  was  able  to  carry  out  its  contract,  nor  is  nonperform- 
ance excused  by  the  occurrence  of  conditions  which  are  likely  to  happen  in  a 
climate  of  long,  dry  summers.^^^ 

VI.    Purchase  of  Waterworks  by  Municipalities. 

Power  to  Purchase. — The  legislature  of  a  state  may  empower  a  municipal- 
ity to  acquire  and  operate  a  private  waterworks  plant.  Nebraska  statutes  con- 
ferring such  power  have  recently  been  construed  by  the  federal  supreme  court.^^^ 

991-25b.     Clear    cases   of    confiscation.^  obsolescence   and   impairment   in  value. — 

Knoxville  f.   Knoxville   Water  Co.,  213  U.  Knoxville  z\   Knoxville  Water   Co..  212  U. 

S.  1,  53  L.  Ed.  371,  29  S.  Ct.  148.  See  ante.  S.  1.  53   L.   Ed.  :571.  29   S.   Ct.   14^. 

INJUNCTIONS,  p.  657.  993-36c.     Reduction    in    income    by    en- 

992-34a.     Circumstances     under     which  forcement    of   requirement   that    company 

capitalization  affords  no  guide  to  oresent  give    discount     for      prompt      payment.— 

value.— Knoxville      r.      Knoxville      Water  Knoxville  v.  Knoxville  Water  Co..  212  U. 

Co.,   212   U.    S.   1,    53    L.   Ed.   371,   29    S.    Ct.  S.   1.   53   L.   Ed.   371.   29    S.   Ct,    148. 

148.  994-43a.    Obligation  not  met — Facts  not 

992-35a.     Net    income     of      company. —  excusing    nonperformance. — Columbus     v. 

Knoxville  r.   Knoxville  Water  Co..  212  U.  Mercantile   Trust,  etc.,   Co..  218  U.  S.  645, 

S.    1.    53   L.    Ed.   371.   29   S.    Ct.    148.  54    L.    Ed.    1193,    31    S.    Ct.    105.    reversing 

993-36a.      Deduction      for      depreciation  161    Fed.   Rep.   135. 

from   age   and   use.— Knoxville   v.     Knox-  994-43b.     the    city    of    Omaha   had    the 

ville   Water    Co.,   212   U.    S.   1,   53    L.    Ed.  power   to    acquire   and   operate   a   private 

371.   29    S.    Ct.    148.  waterworks    plant   as    it    existed,    with    its 

993-36b.    Depreciation  by  destruction  or  outlying  distributing  systems   serving  ad- 

1235 


994  WATER  RENTS.  Vol.  XL 

What  Is  Acquired  by  Purchase. — The  acquisition  of  a  waterworks  plant 
as  it  existed  when  a  city  made  its  election,  under  legislative  authority,  to  ex- 
ercise its  option  to  purchase,  including  the  outlying  distributing  systems  serving 
adjacent  suburban  towns,  must  be  deemed  to  have  been  within  the  contempla- 
tion of  both  the  city  and  the  waterworks  company,  where  such  system  was  a 
single  one,  having  a  common  source  of  supply  and  common  main  connections 
therewith,  unless  the  ordinance  exercising  the  option  is  so  plainly  invited  to 
the  purchase  of  only  so  much  of  the  distributing  system  as  lay  wholly  within  the 
corporate  limits  as  to  admit  of  no  other  meaning.'*^'^ 

Appraisal  of  Waterworks  Plant. — The  appraisal  of  a  waterworks  plant 
where  a  municipality  elects,  under  legislative  authority,  to  exercise  its  option 
to  purchase  at  a  value  to  be  determined  by  three  engineers,  one  each  to  be 
selected  by  the  city  and  the  waterworks  company,  and  the  third  by  the  two  so 
selected,  is  a  matter  of  public  concern,  and  unanimity  among  the  appraisers  is 
therefore  unnecessary,  the  decision  of  the  majority  being  sufficient.'*"-'^  The  val- 
uation of  a  waterworks  plant,  made  by  such  a  board  of  appraisers,  is  not  viti- 
ated, in  the  absence  of  any  evidence  of  actual  bad  faith,  by  the  examination  of 
the  company's  books  by  the  appraisers  without  the  consent  of  the  city,  or  the 
presence  of  its  representatives,  since  the  strict  rules  relating  to  arbitration  and 
awards  do  not  apply.'*^®  The  commercial  value  of  a  waterworks  plant  as  a 
going  concern  is  properly  included  in  the  valuation  of  the  plant  by  the  board 
of  appraisers  appointed,  where  the  municipality  has  elected  to  exercise  its 
option  to  purchase,  although  the  ordinance  exercising  such  option  provides  that 
nothing  shall  be  paid  for  the  unexpired  franchise  of  the  waterworks  company .^^^ 

WATERCOURSE.— See  ante.  Navigable  Waters,  p.  914;  post,  Waters 
AND  Watercourses. 

WATER  RENTS. — See  ante.  Water  Companies  and  Waterworks,  p. 
1233. 

jacent  subvirban  towns,   under  Laws   Neb.  Omaha   v.    Omaha   Water    Co.,    218    U.    S. 

1897,   c.    10,    §   27,    providing    for   the    con-  180,  54  L.  Ed.  991,  30  S.  Ct.  615,  affirming 

struction     and      maintenance      of      water-  decrees   in    Omaha   Water   Co.   v.    City   of 

works  "either  within  or  without  the   cor-  Omaha    (1908),    162    F.    225,    89    C.    C.    A. 

oorPte    limits    of   the    city,"    supplemented  205,  15  A.  &  E.  Ann.  Cas.  498. 

by  §  27  of  the  same  statute,  granting  the  994-43c.    What  is  acquired  by  purchase, 

city    power    to    appropriate    any    existing  —Omaha  v.  Omaha  Water  Co..  218  U.   S. 

waterworks   system   lying   within   the   city  igo,  54  L.  Ed.  991,  30  S.   Ct.  615. 

or   in   part   without   sucn    city,    and    within  ^^.   ,„  ,         AnnraUal        nf       waterworks 

ten   miles   from   the   corporate   limits,   and  i®  .      o       .^PP'^^i^^^  ,    °*,,.  ^^^^^'^'^^^f^ 

by  Laws   1903,   c.   12.  providing   a  m;thod  ?t^^"c'-TS"'S^ 'V^"'o^qi'  TA    C?   ^^^i 

of    procedure     for      acquiring"    municipal  U.   S.   180.   54  L.   Ed.  991,  30   S.   Ct.   615. 

water  plants,  and  the  creation  of  a  water  994-43e.       Valuation       not        vitiated.— 

board  for  their  control  and  management  Omaha   v.    Omaha   Water   Co..    218    U.    S. 

and    Comp.    St.    1907.    c.    12a,    §    242.    em-  180.  54   L.   Ed.  991.  30  S.   Ct.  015. 

powering  water   boards   to   contract  with  994-43f.    Commercial  value  properly  in- 

any  municipality   adjacent   to   said   city   to  eluded. — Omaha    v.    Omaha     Water      Co., 

supply    such     municipality      with      water.  218  U.  S.  180.  54  L.  Ed.  991,  30  S.  Ct.  615. 

1236 


Vol.  XL  WATERS   AXD    IVATBRCOURSBS.  999 


WATERS  AND  WATERCOURSES. 

III.  Watercourses,    1237. 

C.  Right  to  Use  Water,  1237. 

1.   In  General,   1237. 

\y2.  Rights  as  between  Users  in  Different  States,  1238. 

D.  Obstruction  and  Diversion,   1238. 

1.  In  General.  1238. 

IV.  Irrigation,  1239. 

D.  Doctrine  of   Prior  Appropriation,   1239. 

1.  In  General,  1239. 

E.  Irrigation   Corporations,    1239. 

5.  Limitation    upon  Time    of    Construction    of    Canal    or    Reservoir, 
1239. 

F.  Appointment  of  a  Water  Commissioner,   1239. 

CROSS  REFERENCES. 

See  the  title  Waters  and  Watercourses,  vol.  11,  p.  995,  and  references 
there  given. 

In  addition,  see  ante.  Admiralty,  p.  10;  Courts,  p.  398;  United  States, 
p.  1216. 

As  to  the  ownership  of  land  formed  by  accessions  and  accretions,  see  ante, 
Accession,  Accretion  and  Reliction,  p.  4.  As  to  loss  of  land  by  avulsion, 
see  ante,  Accession,  Accretion  and  Reliction,  p.  4.  As  to  joinder  of  defend- 
ants in  an  appeal  from  a  decree  permanently  enjoining  the  diversion  of  water, 
see  ante,  Appeal  and  Error,  p.  34.  As  to  impairment  of  the  obligations  of  a 
contract  to  divert  the  waters  of  a  river  into  another  state,  see  ante.  Impair- 
ment OF  Obligation  of  Contracts,  p.  624.  As  to  reservation  of  waters  for 
irrigation  purposes  in  favor  of  Indians,  see  ante,  Indians,  p.  641.  As  to  pro- 
hibition of  diversion  of  waters  of  a  stream  into  another  state  considered  as  a 
violation  of  interstate  commerce,  see  ante,  Interstate  and  Foreign  Commerce, 
p.  689.  As  to  congressional  control  over  the  taking  and  landing  of  sponges, 
see  ante.  Interstate  and  Foreign  Commerce,  p.  689;  Navigable  Waters,  p. 
914.  As  to  the  right  to  fix  harbor  lines,  see  ante.  Interstate  and  Foreign  Com- 
merce, p.  689;  Navigable  Waters,  p.  914.  As  to  the  rights  of  the  owner  of 
an  island  partially  submerged  by  the  building  of  a  dam  to  increase  the  depth 
of  water  in  a  harbor,  see  ante.  Navigable  W^vters,  p.  914.  As  to  judgment 
adjudicating  rights  of  appropriators  of  water  as  res  adjudicata,  see  ante.  Res 
Adjudicata,  p.  1065.  As  to  wharves,  see  post,  Wharves  and  Wharfingers. 
As  to  use  of  waters  for  mining  purposes,  see  ante.  Mines  and  Minerals,  p.  865. 

III.  Watercourses. 
C.    Right  to  Use  Water — 1.    In  General. — By  constitutional  or  statutory 
provisions,   in   some  jurisdictions,  all  unappropriated  waters   are  subject  to   ap- 
propriation.'^*    Rut  this  right  of  appropriation  is  not  an  unrestricted  right.     It 

999-14a.     Unappropriated    waters    sub-  Under      the      right      of       appropriation 

ject    to    appropriation. — Schodde    v.    Twin  "Water   is    diverted   to   propel    machinery 

Falls  Land,  etc.,  Co.,  224  U.  S.  107,  56  L.  in  flour  mills  and   saw  mills,   and   to   irri- 

Ed.    686,    32    S.    Ct.    470;    Bean   v.    Morris,  gate    land    for    cultivation,    as    well    as    to 

221  U.  S.  485,  487,  55  L.  Ed.  821,  31  S.  Ct.  enable    miners     to      work      their      mining 

703,    affirming    159    Fed.    Rep.    651,    86    C.  claims;    and    in    all    such    cases    the    right 

C.   A.   519.  of  the  first  appropriator,  e.\ercised  within 

This  is   the   rule   under  the   constitution  reasonable    limits,    is    respected    and    en- 

of   Idaho,   art.    15,   §   3.     Schodde  7'.   Twin  forced."      Schodde    v.    Twin    Falls    Land. 

Falls  Land.  etc..   Co.,  224  U.   S.  107,  56  L.  etc..  Co.,  224  U.   S.   107,  56  L.   Ed.  686,  32 

Ed.  686.  32  S.  Ct.  470.  S.  Ct.  470. 

1237 


999-1000 


WATERS   AND    WATERCOURSES. 


Vol.  XL 


must  be  exercised  with  some  regard  to  the  rights  of  the  public."'^ 

The  doctrine  of  appropriation  was  in  force  in  the  state  of  Sonora 
Mexico  prior  to  the  cession  to  the  United  States.^-*" 

Effect  of  Patent  Confirming  a  Mexican  Grant.— The  acquisition  of  rights 
as  a  riparian  proprietor  which  could  not  be  displaced  by  a  subsequent  attempt 
to  appropriate  the  water  can  not  be  based  upon  a  patent  from  the  United  States, 
issued  pursuant  to  a  decree  of  the  court  of  private  land  claims,  confirming  a 
Mexican  grant  to  riparian  lands,  on  the  theory  that  such  patent  not  only  con- 
firms the  Mexican  title,  but  releases  that  of  the  United  States.!-*"^ 

V/2.  Rights  as  between  Users Jn  Different  States. — The  federal  supreme 
court  will  assume,  in  the  absence  of  Montana  legislation  to  the  contrary,  that 
prior  appropriators  of  the  waters  of  an  interstate  stream  at  a  point  in  Wyom- 
ing could  acquire  rights  as  against  junior  appropriators  of  the  waters  of  the 
same  stream  in  Montana,  enforceable  in  the  latter  state.^-*^ 

D.  Obstruction  and  Diversion — 1.  In  Gkneral. — No  agreement  of  private 
riparian  owners  can  sanction  the  diversion  of  an  important  stream  outside  the 
boundaries  of  the  state  in  which  it  flows  ;--*^  and  the  police  power  of  a  state 
justifies  the  enactment  of  a  law  under  which  a  riparian  owner  may  be  prevented 
from  diverting  the  waters  of  a  stream  of  such  state  into  any  other  state,  for 


999-14b.  Appropriation  not  an  unre- 
stricted right. — Schodde  v.  Twin  Falls 
Land,  etc.,  Co.,  224  U.  S.  107,  56  L.  Ed. 
686.    32    S.    Ct.   470. 

This  right  to  appropriate  water,  "like 
the  right  by  prior  occupancy  to  mining 
ground  or  agricultural  land,  is  not  un- 
restricted. It  must  be  exercised  with 
reference  to  the  general  condition  of  the 
country  and  the  necessities  of  the  peo- 
ple, and  not  so  as  to  deprive  a  whole 
neighborhood  or  community  of  its  use, 
and  vest  an  absolute  monopoly  in  a 
single  individual."  Schodde  v.  Tv/in 
Fails  Land,  etc.,  Co.,  224  U.  S.  107,  56  L. 
Ed.   686,  32  S.   Ct.  470. 

"The  private  right  to  appropriate  is 
subject  not  only  to  the  rights  of  lower 
owners,  but  to  the  initial  limitation  that 
it  may  not  substantially  diminish  one  of 
the  great  foundations  of  public  welfare 
and  health."  Hudson  County  Water  Co. 
V.  McCarter,  209  U.  S.  349,  52  L.  Ed.  828, 
28   S.   Ct.   529. 

Rule  in  Idaho. — The  current  of  a  river 
can  not  be  appropriated  by  a  riparian 
proprietor  in  Idaho  to  the  extent  neces- 
sary to  operate  the  water  wheels  used  by 
him  to  divert  the  water  actually  appro- 
priated for  a  beneficial  use,  so  as  to  give 
him  a  right  of  action  for  the  destruction 
of  the  current  by  subsequent  appropria- 
tors, when  exercising  their  right,  under 
Idaho  Const.,  art.  15,  §  3,  to  apply  the 
unused  water  to  beneficial  uses,  even  as- 
suming the  coexistence  in  that  state  of 
a  system  of  riparian  rights  and  the  doc- 
trine of  appropriation.  Schodde  v.  Twin 
Fp11s  Land,  etc..  Co.,  224  U.  S.  107,  56  L. 
Ed.   686,  32  S.   Ct.  470. 

The  license  given  by  Idaho  Rev.  Stat., 
§  3184,  to  the  owners  of  land  adjacent  to 
any  stream,  "to  place  in  the  channel  of, 
or    upon    the    banks    or    margin    of,    the 


same,  rams  or  other  machines  for  the 
purpose  of  raising  the  waters  thereof  to 
a  level  above  the  banks  requisite  for  the 
flow  thereof  to  and  upon  such  adjacent 
lands,"  does  not  confer  any  power  to 
appropriate,  without  reference  to  bene- 
ficial use,  the  entire  volume  of  a  river 
or  its  current,  to  the  destruction  of  the 
rights  of  others  to  make  appropriations 
of  the  unused  water.  Schodde  v.  Twin 
Falls  Land,  etc.,  Co.,  224  U.  S.  107,  56  L. 
Ed.   686,   32    S.    Ct.   470. 

999-14C.  The  grantee  from  the  state  of 
Sonora,  Mexico,  of  land  on  the  San 
Pedro  river,  can  not  claim  to  have  ac- 
quired, under  the  grant,  rights  as  a 
riparian  proprietor  of  which  he  could  not 
be  deprived  by  a  subsequent  attempt  to 
appropriate  the  water,  since  the  doctrine 
of  appropriation  was,  to  some  extent,  at 
least,  in  force  in  that  state  by  custom, 
irrigation  having  been  practiced  in  the 
Santa  Cruz  Valley  prior  to  the  cession 
to  the  United  States,  and  the  right  of  ap- 
propriation, without  regard  to  the  riparian 
character  of  the  lands,  having  been  in 
force  there  probably  from  the  time  when 
the  Spaniards  first  settled  in  the  valley. 
Decree  (Ariz.  1907),  89  P.  504,  affirmed. 
Boquillas  Land,  etc.,  Co.  v.  Curtis,  213 
U.   S.   339,   53   L.   Ed.   822,  29   S.   Ct.   493. 

999-14d.  Effect  of  patent  confirming  a 
Mexican  grant. — Boquillas  Land,  etc.,  Co. 
V.  Curtis,  213  U.  S.  339,  53  L.  Ed.  822.  29 
S.  Ct.  493.  See  ante,  PUBLIC  LANDS, 
p.   1012. 

999-14e.  Rights  as  between  users  in 
different  states. — Bean  v.  Morris,  221  U. 
S.  485,   55   L.   Ed.  821,  31   S.   Ct.  703. 

1000-24a.  Diversion  of  waters  into  an- 
other state. — Hudson  County  Water  Co. 
V.  McCarter,  209  U.  S.  349,  52  L.  Ed.  828, 
28    S.    Ct.    529. 


1238 


Vol.  XL  Jr EIGHTS   AXD    MEASURES.  1000-1006 

use  therein.-^''  By  such  a  law  neither  due  process  of  law  nor  the  equal  pro- 
tection of  the  laws  is  denied;--*''  nor  are  the  privileges  of  citizens  of  the  state 
from  which  the  waters  are  diverted  denied  to  the  citizens  of  other  states.-^"* 

IV.    Irrigation. 

D.  Doctrine  of  Prior  Appropriation—!.  In  Ge;ne;ral. — See  note  33.  The 
right  to  appropriate  water  for  irrigation  purposes  where  the  doctrine  of  prior 
appropriation  obtains  is  not  confined  to  riparian  proprietors.^^^ 

E.  Irrigation  Corporations — 5.  Limitation  upon  Time  of  Construction  of 
Canal  or  Reservoir. — An  irrigation  company  may  lose  the  right  to  complete 
the  construction  of  its  canal  or  reservoir  by  a  failure  to  complete  such  construc- 
tion within  the  time  required  by  statute. ^^^ 

F.  Appointment  of  a  Water  Commissioner. — The  bounds  of  judicial  au- 
thority are  not  transcended  by  the  appointment  by  a  court  of  a  water  commis- 
sioner charged  with  the  duty  of  distributing  the  waters  of  a  river  among  the 
various  irrigation  canals  according  to  the  adjudged  priorities,  and  imposing  upon 
the  parties  a  pro  rata  liability  for  his  salary. ^^^^ 

WATERWORKS.— See  ante,  Water  Companies  and  Waterworks,  p.  1233. 

WAYS.— See  ante.  Private  Ways,  p.  1005. 

WEAPONS. — See  the  title  Weapons,  vol.  11,  p.  1006,  and  references  there 
given. 

WEIGHTS  AND  MEASURES.— See  the  title  Weights  and  AIeasures,  vol. 
11,  p.  1007,  and  references  there  given.  In  addition,  see  ante,  Appeai,  and  Er- 
ror, p.  34 ;    Police  Pov^^er,  p.  955. 

1000-24b.     Prohibiting   diversion. — Hud-  water      from      any      convenient      stream, 

son   County   Water   Co.   z:   McCarter,   209  Boquillas  Land,  etc.,  Co.  v.  Curtis,  213  U. 

U.    S.    349,    52    L.    Ed.    828,    28    S.    Ct.    529.  S.  339,  53  L.   Ed.  822,  29  S.  Ct.  493. 

See  ante,  POLICE   POWER,  p.  955.  1002-34a.    Right  to  appropriate  not  con- 

1000-24C.    Hudson  County  Water  Co.  v.  fined    to    riparian    proprietors. — Boquillas 

McCarter,    209   U.    S.    349,    52    L.    Ed.    828,  Land,  etc.,  Co.  z:  Curtis,  213  U.  S.  339,  53 

28    S.    Ct.    529.     See      ante,      CONSTITU-  L.  Ed.  822,  29  S.  Ct.  493. 

TIONAL  LAW,  p.  264;  DUE  PROCESS  1006-55a.     The    federal    government    is 

OE  LAW,  p.  475.  not  estopped  to  rely  upon  the  five  years' 

1000-24d.    Hudson  County  Water  Co.  v.  limitation  prescribed  by  the  Act  of  March 

McCarter,   209    U.    S.    349,    52    L.    Ed.    828,  3,   1891     (26  Stat,  at  L.  1095-1102,  chap.  561), 

28    S.    Ct.    529.      See    ante,    CONSTITU-  for    constructing    an    irrigation    canal    or 

TION.\L  LAW,   p.   264.  reservoir,   by   obtaining  an  injunction  in- 

1002-33.     The    general    adoption    of    the  terfering   with    such    construction,    where, 

common    law    by    Howell's     Ariz.     Code,  between    the    dissolution    of    the    prelimi- 

1864,  chap.  61,  §  7,  can  not  be  deemed  to  nary   injunction   and   the    granting   of   the 

liave    included    the    cominon-law    doctrine  perpetual  injunction,  more  than  five  years 

of  riparian  rights,  in  view  of  the  declara-  elapsed,    during    which    the    construction 

tion    of   the    Bill    of   Rights,    art.   22,    that  was      not      impeded     or    hindered.      Rio 

streams   susceptible   of  use   for  irrigation  Grande,  etc.,   Irrig.   Co.  z'.  United   States, 

purposes   are   public  property,   and   of  the  215  U.   S.  266,  54  L.  Ed.  190,  30  S.   Ct.  97. 

various    provisions    of    chap.    55     of     the  1006-55b.    Appointment  of  a  water  com- 

Code,  giving  those  owning  or  possessing  missioner. — Montezuma      Canal      Co.       v. 

irrigable    lands    the    right    to    divert,    by  Smithville    Canal    Co.,    218    U.    S.    371,    54 

means    of     irrigating      canals,      necessary  L.    Ed.    1074,   31    S.    Ct.   67. 

1239 


1009  WIDOWS    COMMUNITY.  Vol.  XI. 


WHARVES  AND  WHARFINGERS. 
II.  Kinds  of  Wharves,   1240. 

C.  Private  Wharves,  1240. 

CROSS  REFERENCES. 

See  the  title  Wharves  and  Wharfingers,  vol.  11,  p.  1008,  and  references 
there  given. 

As  to  the  right  of  riparian  proprietors  to  build  out  private  wharves  so  as  to 
reach  the  navigable  waters  of  a  stream,  see  ante,  Navigable  Waters,  p.  914. 

II.    Kinds  of  Wharves. 

C.  Private  Wharves. — The  owner  or  lessee  of  the  exclusive  right  to  use 
a  wharf  on  a  navigable  stream  need  not  permit  its  use  by  others  upon  payment 
of  reasonable  compensation  therefor  because  there  is  no  other  wharf  at  that 
port,  or  because  such  use  is  convenient,  and  has  been  permitted  by  the  former 
owner  or  lessor.^^ 


WHITE  SLAVE  TRAFFIC. 

CROSS  REFERENCES. 

As  to  the  importation,  keeping  or  harboring  alien  women  for  purposes  of 
prostitution  or  other  immoral  purpose  under  the  Immigration  Acts  of  Feb.  20, 
1907,  c.  1134,  34  Stat.,  §  899  (U.  S.  Comp.  Stat.  Supp.  1907,  p.  309),  and  Act 
of  March  26,  1910,  c.  128  (36  Stat,  at  L.  263,  chap.  128,  U.  S.  Comp.  Stat. 
Supp.  1911,  p.  501),  see  ante.  Aliens,  p.  18.  See,  also,  ante.  Constitutional 
Law,  p.  264;  Interstate  and  Foreign  Commerce,  p.  689;  Police  Power, 
p.  955. 

The  Act  of  June  25,  1910,  ch.  395,  entitled  the  "White  Slave  Traffic  Act,"  had 
not  yet  been  passed  upon  at  the  time  this  title  was  compiled. 

WHOLESALE.— See  ante.  Retail,  p.  1070. 

WIDOW'S  COMMUNITY.— See  ante.  Executors  and  Administrators,  p. 
564. 

1009-4a.    Owner  of  lessee  of  wharf  need       2i^   U.    S.   345,   5.3    L.    Ed.    1024,   29    S.    Ct. 
not    permit    its    use     by     others. — Weems       661. 
Steamboat  Co.  v.  People's  Steamboat  Co., 

1240 


^'o^    XI.  WILLS.  1023-1032 


WILLS. 
III.  Testamentary  Capacity,  1241. 

C.   Evidence   of   Capacity   or   Incapacity,    1241. 

VII.  Probate  and  Contest,  1241. 

C.  Notice  of  Probate,  1241. 
By2.  Evidence,   1242. 

VIII.  Construction  and  Operation,   1242. 

J.   Property  Devised  or   Bequeathed,   1242. 

2.  Under  Particular  Descriptions,   1242. 

3.  Under  Residuary  Clause,   1242. 

L.  Vesting  of  Estates  and  Interests,   1242. 

IX.  Legacies  and  Devises,  1242. 

C.  Property  Subject  to  Be  Devised,  1242. 

CROSS  REFERENCES. 

See  the  title  Wills,  vol.  11,  p.  1015,  and  references  there  given. 

In  addition,  see  ante,  Appeal  and  Error,  p.  34;  Mortgages  and  Deeds  of 
Trust,  p.  891;  Remainders,  Reversions  and  Executory  Interests,  p.  1057; 
Res  Adjudicata,  p.  1065;  Shelley's  Case,  Rule  in,  p.  1095. 

III.    Testamentary  Capacity. 

C.    Evidence  of  Capacity  or  Incapacity. — Admissibility. — See  note  18. 

VII.    Probate  and  Contest. 

C.  Notice  of  Probate. — The  caveator  may,  by  his  conduct  at  the  trial,  pre- 
clude himself  from  raising  the  objection  that  the  statutory  requirement  of  pub- 
lication against  unknown  heirs  or  next  of  kin  has  not  been  complied  with.^'^'^ 

1023-18.     The    record    in    a    suit    for    di-  to    explain     testator's    untrue     statements 

vorce   brought   by   the   testator,   in   which  that    he    was    a    widower    and    had    been 

he    alleged   as   a   cause   that   his   wife   was  divorced,    which    had    been    admitted    in 

incapable  of  a  valid  marriage  on  account  evidence  as  proof  of  his  mental  unsound- 

of   a    physical    malformation,     which      the  ness.     Turner  z.'.   American   Security,   etc., 

physicians    appointed    by    the     court      re-  Co.,   213   U.    S.    257,   53   L.    Ed.   788,   29   S. 

ported,    after    examination,    did   not   exist,  Ct.   420. 

is  not  admissible  on  the  issue  of  the  The  motive  of  a  wife  in  signing  an 
testamentary  capacity  of  the  testator  agreement  with  her  husband,  and  in  join- 
some  thirty  years  afterv/ards,  being  too  ing  with  him  in  a  deed,  is  immaterial, 
remote  in  point  of  time,  and  leading  to  where  such  agreement  and  deed  were  only 
the  collateral  inquiry  whether  the  state-  admitted  in  evidence  on  the  issue  of  the 
ment  was  actually  false,  and,  if  so.  husband's  testamentary  capacity  to  ex- 
whether  the  result  of  a  delusion,  or  of  plain  his  untrue  statements  in  evidence 
malice  or  falsehood.  Turner  z:  American  that  he  was  a  widower  and  had  been  di- 
Security,  etc.,  Co.,  213  U.  S.  257,  53  L.  vorced  from  his  wife.  Decree  (1907)  29 
Ed.   788,   29   S.   Ct.   420.  App.  D.  C.  460,  affirmed.     Turner  v.  Amer- 

Evidence    admissible    to    explain    testa-  ican    Security,    etc.,    Co.,    213    U.    S.    257, 

tor's     statements. — A     written     agreement  53  L.  Ed.  788,  29  S.  Ct.  420. 

between    testator   and   his   wife,    in   which  1032-67a.    Publication   against    unknown 

the    latter    relinquished    all    claim    to    her  heirs    or    next    of    kin. — Probate    proceed- 

husband's  property  and  all  right  to  dower  ings  in  the  District  of  Columbia  in  which 

or     alimony,     and     which     concluded     by  a  verdict  sustaining  the  will  has  been  ren- 

stating    that    it    was    intended    to    restore  dered  by  a  jury  after  a  trial  of  the  issues 

to   the   parties    the    same    contractual   and  framed    under    a    caveat    will    not  be    set 

property    rights    as    they    possessed    be-  aside    at    the    instance    of    the    caveator, 

fore    marriage,    is    admissible    in    evidence  who   participated   in    the   proceedings,   be- 

1241 


1033-1069 


WILLS. 


Vol.  XI. 


D|.  Evidence.— The  presumption  that  a  party  signing  a  will  by  mark, 
or  otherwise,  knows  its  contents,  is  not  a  conclusive  presumption,  but  it 
must  prevail  in  the  absence  of  proof  of  fraud,  undue  influence,  or  want  of 
testamentary  capacity  attending  the  execution  of  the  willJ^^ 

Declarations  of  an  illiterate,  testatrix  prior  and  subsequent  to  the  date 
of  her  will,  as  to  how  she  intended  to  dispose,  or  had  disposed,  of  her  property, 
are  inadmissible  to  show  that  she  was  ignorant  of  its  contents,  where  there  is 
no  evidence  of  testamentary  incapacity  at  the  date  of  the  will,  and  nothing  in 
the  evidence  excluded  from  which  it  could  be  inferred,  and  there  is  no  evidence 
of  fraud  or  undue  influenced ^^ 

VIII.    Construction  and  Operation. 
J.     Property  Devised   or   Bequeathed — 2.    Under   Particular  Descrip- 
tions.— See  note  48, 

3.   Under  Residuary  Clause. — See  note  49. 

L.    Vesting  of  Estates  and  Interests. — Time  of  Vesting. — See  note  80. 

IX.    Legacies  and  Devises. 
C.    Property  Subject  to  Be  Devised. — See  note  26. 


cause  there  was  no  publication,  under  act 
June  30,  1902,  c.  1329,  32  Stat.  526,  against 
unknown  heirs  or  next  ot  km,  until  afttr 
the  verdict,  where  there  was  no  sugges- 
tion made  at  any  time  that  there  were  any 
such  persons  in  existence.  Lewis  v.  Luc- 
kett,  221  U.  S.  554,  55  L.  Ed.  851,  31  S.  Ct. 
682,  affirming  judgment  32  App.  D.  C.  188. 

1033-71a.  Presumption  of  knowledge  of 
contents  of  will. — Lipphard  v.  Humphrey, 
209  U.  S.  264,  52  L.  Ed.  783,  28  S.  Ct. 
561. 

1033-71b.  Declarations  of  an  illiterate 
testatrix. — Lipphard  v.  Humphrey,  209  U. 
S.  264,  52  L.  Ed.  783,  28  S.  Ct.  561,  affirm- 
ing 28  App.  D.  C.  355. 

1050-48.  Will  giving  husband  all  prop- 
erty owned  by  testatrix. — Intention  of 
testatrix,  a  leper,  residing  at  the  settle- 
ment at  Kalaupapa,  Hawaii,  to  give  her 
husband  not  only  the  propertA'  which  she 
left  situated  there,  but  all  other  property 
owned  by  her,  wherever  situated,  and  of 
whatever  character,  clearly  appears  from 
a  gift  to  him  of  "all  property  known  be- 
longing to  me  and  appearing  in  my  name, 
situate  at  Kalaupapa,"  describing  it  as 
three  horses  and  a  wooden  house,  and 
"other  houses  owned  by  me,  as  well  as 
all  other  property  owned  by  me."  Gray 
V.  Noholoa,  214  U.  S.  108,  53  L.  Ed.  931, 
29  S.  Ct.  571. 

1051-49.    The  residuary  clause  in  a  will 


in  the  usual  form,  "All  the  rest  and  resi- 
due of  my  estate,  real,  personal,  and 
mixed,  which  I  now  possess  or  which 
may  hereafter  be  acquired  by  me,"  is  am- 
ply sufficient  to  carry  the  equitable  es- 
tate. Mayer  v.  American  Security,  etc., 
Co.,  222  U.  S.  295,  56  L.  Ed.  206.  32  S. 
Ct.  95. 

1062-80.  The  widow  is  not  entitled  to 
any  part  of  the  income  from  her  deceased 
husband's  realty  before  the  same  comes 
into  the  executors'  hands  as  trustees  under 
a  will  directing  the  executors,  who  are 
also  named  as  trustees,  to  obtain  a  decree 
of  distribution,  as  soon  as  may  be,  and 
devising  the  residue  of  the  testator's  es- 
tate, not  before  otherwise  devised  or  be- 
queathed, to  the  trustees  living  at  the 
date  of  the  decree  of  distribution,  who, 
"with  respect  to  all  property  which  shall 
be  so  distributed  to  them,"  are  to  reduce 
the  same  to  possession  and  manage  it, 
collecting  the  rents  and  income,  and  keep- 
ing separate  the  accounts  pertaining  to 
the  realty,  and  to  pay  over  to  the  widow, 
in  lieu  of  dower,  one-third  of  the  income 
of  the  "realty  last  aforesaid."  Hawaiian 
Trust  Co.  V.  Von  Holt,  216  U.  S.  367,  54 
L.  Ed.  519,  30  S.  Ct.  303. 

1069-26.  Equitable  estate  devisable. — 
Mayer  t.  American  Security,  etc.,  Co.,  222 
U.  S.  295,  56  L.  Ed.  206,  32  S.  Ct.  95,  af- 
firming 33  App.  D.  C.  391. 


1242 


Vol.  XI.  WITNESSES.  1088-1095 


WITNESSES. 

I.  Attendance  and  Compensation,   1243. 

A.  Attendance,  1243. 

4.  Subpoena  Duces  Tecum,  1243. 

II.  Competency,  1243. 

C.  Husband  and  Wife,  1243. 

1.    In   General,    1243. 
I.  Color  No  Disqualification,  1243. 

III.  Statutory  Changes  in  Common-Law  Rules,  1243. 

A.  Parties  and  Persons  Interested,  1243. 

IV.  Examination  of  Witnesses,  1244. 

B.  Cross-Examination,   1244. 

3.  Cross-Examination  as  to  Letters  and  Records,   1244. 
G.  Refreshing  Memory,  1244. 

V.  Impeachment  and  Corroboration,   1244. 

A.  Impeachment,   1244. 

4.  Impeachment  of  One's  Own  \\"itness,  1244. 

VI.  Credibility  of  Witnesses,  1244. 

E.  Interest  and  Bias,  1244. 

VII.  Privilege  of  Refusing  to  Testify,  1244. 

D.  Self-incrimination,   1244. 

CROSS  REFERENCES. 

See  the  title  Witnesses,  vol.  11,  p.  1077,  and  references  there  given. 

In  addition,  see  ante.  Constitutional  Law,  p.  264;  DuK  Process  oe  Law, 
p.  475;  Evidence,  p.  558;  Expert  and  Opinion  Evidence,  p.  569;  Interstate 
AND  Foreign  Commerce,  p.  689;  Libel  and  Slander,  p.  824;  Privileged  Com- 
munications, p.  1006. 

As  to  right  of  accused  to  confront  witness,  see  ante.  Constitutional  Law, 
p.  264.  As  to  power  of  interstate  commerce  commission  in  relation  to  attend- 
ance of  witnesses  and  production  of  evidence,  see  ante.  Interstate  and  For- 
eign Commerce,  p.  689. 

I.    Attendance  and  Compensation. 

A.  Attendance — 4.  Subpcena  Duces  Tecum. — See  ante,  Production  of 
Documents,  p.  1008. 

II.    Competency. 

C.    Husband  and  Wife — 1.   In  General. — See  note  40. 
I.    Color  No  Disqualification. — See  note  58. 

III.    Statutory  Changes  in  Common-Law  Rules. 
A.    Parties  and  Persons  Interested. — See  note  70. 

1088-40.     Wife    of    accused    in    federal  1092-58.      Color     no     disqualification.— 

court. — The  wife  of  the  accused  in  a  crimi-  American    Lithographic   Co.  t'.    Worckme- 

nal    case    is    not    competent    to    testify    in  ister,    221  U.  S.    603,  55  L.    Ed.  873,    31  S. 

the  federal  courts  on  his  behalf.     Hendrix  Ct.  676. 

V.  United   States,  219  U.   S.  79,  55   h.   Ed.  1095-70.     The    purpose  of    §  858  of    the 

102,  31  S.  Ct.  193.  Revised    Statutes. — "By    the    Act    of   July 

1243 


1105-1118 


WITXBSSES. 


Vol.  XL 


IV.    Examination  of  Witnesses. 

B.  Cross -Examination — 3.  Cross-Examinatiox  as  to  Lette:rs  and  Rec- 
ords.— Error  in  permitting  an  improper  cross-examination  may  be  cured  by 
the  instructions  of  the  court. ^^^^ 

G.  Refreshing  Memory. — See  notes  35,  37. 

V.    Impeachment  and  Corroboration. 
A.   Impeachment — 4.   Impeachment  of  One's  Own  ^^'ITNEss. — See  note  55. 

VI.    Credibility  of  Witnesses. 
E.    Interest  and  Bias. — See  note  63. 

VII.    Privilege  of  Refusing  to  Testify. 
D.     Self-incrimination. — See    ante,    Constitutional    Law,    p.    264;    Due 
Process  of  Law.  p.  475. 


2,  1864,  chap.  210,  §  3  (13  Stat,  at  L.  351. 
U.  S.  Comp.  Stat.  1901,  p.  659),  it  was  pro- 
vided that  there  should  be  'no  exclusion 
of  any  witness  on  account  of  color,  nor 
in  civil  actions  because  he  is  a  party  to, 
or  interested  in,  the  issue  tried.'  This 
provision  w^as  continued  in  §  858,  Rev. 
Stat.  'The  purpose  of  the  act  in  making 
the  parties  competent  was,  except  as  to 
those  named  in  the  proviso,  to  put  them 
upon  a  footing  or  equality  with  other 
witnesses,  all  to  be  admissible  to  testify 
for  themselves,  and  compellable  to  testify 
for  the  others.'  Texas  z'.  Chiles,  21  Wall. 
488,  492,  22  L.  Ed.  650.  Section  858  was 
amended  by  the  Act  of  June  29,  1906, 
chap.  3608  (34  Stat,  at  L.  618,  U.  S.  Comp. 
Stat.  Supp.  1909,  p.  242),  which  refers  the 
competency  of  witnesses  in  the  courts  of 
the  United  States  to  the  laws  of  the  state 
or  territory  in  which  the  court  is  held." 
American  Lithographic  Co.  v.  VVerckme- 
ister,  221  U.  S.  603,  55  L.  Ed.  873,  31  S. 
Ct.  676. 

1105-16a.  Instructions  of  court  curing 
error. — Error  in  permitting  an  improper 
use  of  a  letter  on  the  cross-examination 
of  the  addressee  is  cured  by  instructing 
the  jury  that  such  letter  is  not  to  be  taken 
as  evidence  of  the  truth  of  any  of  its 
statements,  or  even  allowed  to  be  used 
for  the  purpose  of  cross-examination. 
Turner  z\  American  Security,  etc.,  Co., 
213  U.   S.  257,  53  L.   Ed.  788,  29   S.  Ct.  420. 

1109-35.  Refreshing  memory. — Wit- 
nesses for  the  government  in  a  criminal  trial 
may  be  asked  on  direct  examination,  for 
the  purpose  of  refreshing  their  memory, 
as  to  conversations  with  the  district  at- 
torney, and  as  to  previous  written  state- 
ments made  by  them  to  certain  govern- 
ment representatives.  Hyde  z'.  United 
States,  225  U.  S  347,  56  L.  Ed.  1114,  32  S. 
Ct.  793. 

1110-37.  What  is  contemporaneous. — 
It  is  not  error  for  the  trial  court  in  a 
criminal  prosecution  to  permit  the  prose- 
cuting officer  to  show  to  a  witness  for  the 
prosecution,  who  had  related  a  conversa- 


tion between  himself  and  one  of  the  de- 
fendants, a  written  report  made  by  him 
of  the  interview  six  days  after  it  occurred, 
in  order  to  refresh  the  memory  of  the 
witness  as  to  the  conversation  and  to  en- 
able him  to  correct  his  testimony  as  to 
certain  of  its  details.  The  report,  being 
practically  contemporary  with  the  con- 
versation, is  admissible  for  the  purpose 
of  refreshing  the  memory  of  the  witness, 
and  the  matter  also  is  one  largely  in  the 
discretion  ot  the  trial  court.  Hyde  z. 
United  States.  35  App.  D.  C.  451,  writ  of 
certiorari  granted.  Hyde  z\  United  States, 
218  U.  S.  681,  54  L.  Ed.  1207,  31  S.  Ct.  228. 

1116-55.  Statutory  provision  in  District 
of  Columbia  where  party  is  taken  by  sur- 
prise.— Where  an  unfriendly  witness  for 
the  prosecution  in  a  criminal  case,  having 
testified  to  certain  facts,  is  shown  a  con- 
tradictory written  statement  made  by 
him  before  the  trial,  to  an  agent  of  the 
prosecution,  and  denies  it  to  be  true,  it  is 
permissible  to  read  it  to  him  for  the  pur- 
pose of  discrediting  him  under  Code  D. 
C,  §  1073a  (32  Stat.  540),  providing  that, 
where  a  party  producing  a  witness  is  sur- 
prised by  his  testimony,  he  may  be  al- 
lowed to  prove  statement  made  by  the 
witness  to  the  party  or  his  attorney  at 
variance  to  his  testimony,  while,  if  the 
witness  after  first  denying  the  truth  of 
such  a  statement,  then  admits  it  to  be 
true,  it  goes  to  the  jury  for  what  it  is 
worth,  discredited,  as  it  necessarily  is,  by 
his  contradictory  statements.  Hyde  t'. 
United  States,  35  App.  D.  C.  451.  writ  of 
certiorari  granted.  Hvde  z\  United  States, 
218  U.   S.  681.  54  L.  Ed.  1207,  31  S.  Ct.  228. 

1118-63.  Failure  to  charge  as  to  personal 
interest  of  witness. — A  judgment  on  a 
verdict  will  not  be  reversed  because  of 
refusal  to  instruct  the  jury  that  the  per- 
sonal interest  of  a  party  exercising  his 
statutory  privilege  to  testify  in  his  own 
behalf  should  be  considered  as  affecting 
his  credibility.  Standard  Oil  Co.  v.  Brown, 
218  U.  S.  78,  54  L.  Ed.  939,  30  S.  Ct.  669. 
affirming  judgment  (1908),  31  App.  D.  C. 
371. 


1244 


Vol.  XI. 


IVOMEX  EMPLOYEES. 


1120 


WOMEN.— See  note  a. 

WOMEN   EMPLOYEES.— See   ante,   Constitutional  Law,   p.   264;    Due 

Process  of  Law,  p.  475  :    Police  Power,  p.  955. 


1120-a.  Rights  of  women. — Putiing  to 
one  side  the  elective  franchise,  in  the 
matter  of  personal  and  contractual  rights 
women  stand  on  the  same  plane  as  the 
other  sex.  Their  rights  in  these  respects 
can  no  more  be  infringed  than  the  equal 
rights  of  their  brothers.  There  is  a  wide- 
spread belief  that  woman's  physical 
structure,  and  the  functions  she  performs 
in  consequence  thereof,  justify  special 
legislation  restricting  or  qualif3'ing  the 
conditions  under  which  she  should  be 
permitted  to  toil.  That  woman's  physical 
structure  and  the  performance  of  ma- 
ternal functions  place  her  at  a  disad- 
vantage in  the  struggle  for  subsistence  is 
oJjvious.  This  is  especially  true  when  the 
burdens  of  motherhood  are  upon  her. 
Even  when  ihey  are  not.  by  abundant 
testimony  of  the  medical  fraternity  con- 
tinuance for  a  long  time  on  her  feet  at 
work,  repeating  this  from  daj'^  to  day, 
tends  to  injurious  effects  upon  the  body, 
and  as  healthy  mothers  are  essential  to 
vigorous  offspring,  the  physical  well- 
being  of  woman  becomes  an  object  of 
public  interest  and  care  in  order  to  pre- 
serve the  strength  and  vigor  of  the  race. 
Even   though   all   restrictions   on   political, 


personal  and  contractual  rights  were 
taken  awa3^  and  she  stood,  so  far  as 
statutes  are  concerned,  upon  an  abso- 
lutely equal  plane  with  him,  it  would  still 
be  true  that  she  is  so  constituted  that  she 
will  rest  upon  and  look  to  him  for  pro- 
tection; that  her  physical  structure  and 
a  proper  discharge  of  her  material  func- 
tions— having  in  view  not  merely  her 
own  health,  but  the  well-being  of  the  race 
— justify  legislation  to  protect  her  from 
the  greed  as  well  as  the  passion  of  man. 
The  two  sexes  differ  in  structiire  of  body, 
in  the  ftmctions  to  be  performed  by  each, 
in  the  amount  of  physical  strength,  in 
the  capacity  for  long-continued  labor, 
particularly  when  done  standing,  the  in- 
fluence of  vigorous  health  upon  the  fu- 
ture well-being  of  the  race,  the 
self-reliance  which  enables  one  to  assert 
full  rights,  and  in  the  capacity  to  main- 
tain the  struggle  for  subsistence.  This 
difference  justifies  a  difference  in  legisla- 
tion and  upholds  that  which  is  designed 
to  compensate  for  some  of  the  burdens 
which,  rest  upon  her.  MuUer  v.  Oregon, 
208  U.  S.  412.  418.  .52  L.  Ed.  551,  28  S. 
Ct.  324.  See  ante.  CONSTITUTIONAL 
LAW,  p.  264;  POLICE  POWER,  p.  955. 


1245 


WORKING    CONTRACTS.  Vol.  XI. 


WORKING  CONTRACTS. 

I.  Formation,  1247. 

B.  Mutual  Assent,  1247. 

C.  Writing,  1248. 

D.  Plans,  Drawings  and  Specifications,  and  Bids,  1248. 

II.  Construction  and  Operation,   1248. 
A.  Construction  Generally,  1248. 
G.   Ownership  of  Materials.   1248. 

a.  In  General,  1248. 

b.  Time  When  Title  Passes,  1248. 

c.  Recognition  of  Liens  of  Laborers  and  Materialmen,  1249. 
H.  Assignment,  1249. 

I.  Commercial  or  Trade  Meaning  of  Words  and  Terms,   1249. 

III.  Alteration,    Modification  and  Rescission,    1250. 

IV.  Termination  or  Forfeiture,   1250. 
V.  Performance  or  Breach,   1250. 

D.  Time,  1250. 

2.  Time  as  Essence,   1250. 

a.   In  General,   1250. 

c.    Waiver   of    Nonperformance,    1250. 

3.  Annulling  and  Reletting  Government  Contracts,  1250. 

E.  Quality  of  Work,  1252. 

F.  Superintendence  and  Control,   1252. 

G.  Reference  of  Matters  of  Dispute  to  Architect  or  Engineer,  1253. 
H.  Excuses   for  Nonperformance,   1253. 

5.   Breaking  Down  of   Machinery,   1253. 
I.  Liability  for  Breach,  1253. 

2.  Liability  of  Promisor,  1253. 

a.    Negligence.    Default   or   Improper   Interference,    1253. 
(3)   Liability  of  United  States,  1253. 

3.  Measure   of  Damages,   1253. 
J.  Release,  1253. 

VI.   Compensation,   1254. 

C.   Ascertainment  of  Amount,    1254. 

3.  Extra  Work,  1254. 

4.  Deduction  of  Expense  of  Completion,   1254. 

5.  Repayment   in   Contingency  of   Profit,   1254. 

VII.  Extra  Work,  1254. 

A.  What  Constitutes,   1254. 

B.  Right  to   Compensation,   1255. 

VIII.  Security  for  Completion,  Penalties  and  Forfeitures,   1255. 

Vni|.  Bond  of  Public  Contractor  for  Security  of  Laborers  and  Mate- 
rialmen,  1255. 

A.  Time  of  Execution,  1255. 

B.  Consideration,   1256. 

C.  Claims  and  Claimants   Secured,   1256. 

D.  Priorities   and   Preferences,    1258. 

1.  Preference  to  United  States,  1258. 

1246 


Vol.  XL  WORKING    CONTRACTS.  1123 

2.    Lien  of   L'nited   States   for   Partial  Payments  on  Vessels  under 
Construction,  1258. 

E.  Discharge  of  Sureties,   1258. 

F.  Subrogation  of  Sureties,  1259. 

G.  Enforcement,  1259. 

1.  Statutory   Procedure    Generally,    1259. 

2.  Retroactive   Eflfect  of   Amendatory   Remedial   Statute.    1259. 

3.  Venue  or  District  of  Suit,   1260. 

4.  Parties— United   States.    1260. 

5.  Copy  of  Bond  and  Affidavit  That  Labor  or  Material  Furnished 

1260. 

6.  Docket  Fees,   1260. 

IX.  Actions,   1260. 

D.  Set-Off  and  Recoupment,   1260. 

E.  Evidence,    1260. 

F.  Subrogation  of  Surety  in  Building  Contract,   1261. 

G.  Actions  on   Bond  of  Public  Contractor,   1261. 

H.    Enforcement  of  Lien  of  Laborers  and  Materialmen  Allowed  by  State 
Law,   1261. 

CROSS  REFERENCES. 
See  the  title  Working  Co^ttracts,  vol.  11,  p.  1122,  and  references  there  given. 
In  addition,  see  ante.  United  States,  p.  1216. 

I.    Formation. 

B.  Mutual  Assent. — The  minds  of  the  parties  should  meet  as  to  the  terms 
of  a  working  contract.-  The  acceptance  of  a  design  for  a  building  submitted 
in  a  competition  which  contemplated  the  payment  of  a  named  sum  to  each  of  a 
number  of  architects  submitting  designs,  does  not  constitute  a  contract  for  the 
erection  of  the  building.^^ 

Certainty  and  Definiteness. — An  irreconcilable  conflict  between  es- 
sential provisions  of  a  contract  for  the  construction  of  barges  for  the  United 
States,  which  will  prevent  the  contractor  from  recovering  for  failure  to  carry 
it  out,  exists  where  the  specifications,  which  are  left  in  full  force,  prescribe 
with  much  detail  the  weight  and  dimensions  of  the  structural  materials,  while 
the  contract  itself  provides  for  the  construction  of  the  barges  in  accordance 
with  the  specifications,  "with  such  modifications"  as  are  shown  by  certain  pro- 
posals contained  in  the  contractor's  bid,  under  which  he  claims  the  right  to 
use  materials  of  an  inferior  size,  weight,  and  power  of  resistance.-" 

The  power  to  change  details,  reserved  by  the  government  in  a  contract 
for  public  work,  does  not  make  the  contract  unenforceable  for  want  of  cer- 
tainty and  mutuality,  there  being  full  provisions  for  ascertaining  a  change  in 
the  compensation  where  any  such  change  is  proper. ^^ 

1123-2.     Mutual  assent.- — Lord  v.  United  stipulated   sum  to  each   of  the  competing 

States,  217  U.  S.  340,  54  L.   Ed.  790,  30  S.  architects,   in   full   compensation   for   their 

Ct.  5G8.  service    in    preparing    and    submitting    dc- 

1123-2a.  Acceptance  of  design. — The  ac-  signs,  and  explicitly  stated  that  the  stat- 
ceptance  of  a  design  for  a  public  building,  ute    did    not    provide    for   a   building,    but 
submitted  in  the  competition  devised  un-  only  for  designs  to  be  approved  by  con- 
dor Act  March  2,  1901,  c.  805,  31  Stat.  922.  gress.      Lord   t.   United   States,   217   U._  S. 
does  not  bind  the  government  to  commis-  340,  54  L.  Ed.  790,  30  S.  Ct.  568,  affirming 
sion  the  successful  architects  to  construct  judgment    (1908),   43    Ct.    CI.   282. 
the  building  provided  for  in  the  separate  1123-2b.       Conflict      between     essential 
and   independent   act   of   February  9,   1903  provisions. — United  States  z\   Ellicott,  223 
(32  Stat.  806,  c.  528),  where  the  earlier  act  U.  S.  524,  56  L.  Ed.  535,  32  S.  Ct.  334. 
expressly  directed  that  the  plans  and  rec-  1123-2c.      Power     to    change     details. — 
nmmendations   thereon   were   to  be   trans-  United  States  z:  McMullen,  222  U.  S.  460, 
mitted   to    congress,   and   the   program    of  56  L.  Ed.  269,  32  S.  Ct.  128. 
competition   called  for  the  payment  of  a 

1247 


1123-1125 


WORKING   COXTRACTS. 


\'o\.  XI. 


C.  Writing. — Signature  of  United  States. — A  contract  for  a  public  work 
must  be  regarded  as  signed  by  the  United  States  where  it  recites  that  it  is  made 
by  the  United  States  by  a  specified  officer  described  as  chief  of  the  bureau  of 
yards  and  docks,  and  is  signed  by  such  officer,  with  his  official  title  a|)pended."''' 

D.  Plans,  Drawings  and  Specifications,  and  Bids. — See  ante,  "Mutual 
Assent,"  I,  B. 

II.    Construction  and  Operation. 

A.  Construction  Generally. — Working  contracts  are  cons,trued  by  the 
same  rules  which  are  applicable  to  contracts  generally."  The  object  of  con- 
struction is  to  effectuate  the  intention  of  the  parties  in  making  a  given  contract. 
When  the  contract  is  in  writing,  the  language  used  should  be  interpreted  in  the 
light  of  the  circumstances  surrounding  the  parties  at  the  time  the  contract 
was  made."^  An  interpretation  of  a  working  contract  not  supported  by  the 
text  of  the  instrument,  and  not  consonant  with  the  intention  of  the  parties  as 
manifested  by  the  text,  is  unsound.*^'' 

G.    Ownership  of  Materials — a.    In  General. — See  note  13. 

b.  Time  When  Title  Passes. — The  time  when  title  to  a  vessel  building  for 
the  government  passes  depends  upon  the  provisions  of  the  contract  and  not. 
the  state  lien  law.^^^ 


1123-3a.     Signature   of  United   States.— 

United  States  :•.  McMullen,  222  U.  S.  460, 
56   L.   Ed.  269,  32    S.   Ct.   128. 

1124-6.  Construction  generally. — United 
States  V.  EUicott,  223  U.  S.  524.  56  L.  Ed. 
535,   32   S.   Ct.  334. 

1124-6a.  Obiect  of  construction  and  in- 
tention of  parties. — Sand  Filtration  Corp. 
z:  Cowardin,  213  U.  S.  360,  53  U  Ed.  833, 
29  S.  Ct.  509. 

1124-6b.  Ph.°ni\-  nrid-e  Co.  r  United 
States,  211  U.  S.  188,  53  U  Ed.  141.  29  S. 
Ct.  81. 

1125-13.  Ownership  of  materials. — ■ 
United  States  r.  Ansonia  Brass,  etc..  Co.. 
218  U.  S.  452.  54  L.  Ed.  1107.  31  S.  Ct.  49. 
affirming  Clarkson  v.  Stevens,  106  U.  S. 
505,  27  U   Ed.  139,  1    S.  Ct.  200. 

1125-13a.  When  title  passes. — A  vessel 
building  for  the  federal  government  be- 
came, as  fast  as  paid  for,  the  property  of 
the  government,  so  as  not  to  be  subject 
to  seizure  or  encumbrance  under  state 
lien  laws,  where  the  ownership  clause  of 
the  building  contract  provided  that  parts 
paid  for  were  to  become  the  sole  property 
of  the  United  States,  and  required  insur- 
ance to  be  effected  by  the  contractor  on 
behalf  of  the  government  to  at  least  the 
amount  of  each  partial  payment,  notwith- 
standing other  provisions  in  the  contract, 
which  gave  the  government  the  right  to 
reject  defective  work  or  material,  or  even 
the  entire  dredge,  if,  upon  trial  and  be- 
fore final  acceptance,  it  proved  defective, 
and  to  complete  the  vessel  in  the  event 
of  the  annulment  of  the  contract,  and  re- 
quired a  bond  for  the  faithful  performance 
of  the  contract,  and  made  the  contractor 
responsible  for  the  payment  of  all  liabil- 
ities for  labor  and  material  incurred  in 
the  prosecution  of  the  work.  United 
States  z:  Ansonia  Brass,   etc.,   Co.,  218  U. 


S.  452,  54  U  Ed.  1107,  31  S.  Ct.  49;  mod- 
ifying Hawes  v.  Trigg,  110  Va.  165,  65  S. 
E.  538.  and  approved  in  Title  Guaranty, 
etc.,  Co.  z:  Crane  Co.,  219  U.  S.  24.  55  U 
Ed.  72.  31  S.  Ct.  140. 

There  is  nothing  in  the  other  provisions 
which  cuts  down  or  lessens  the  binding 
force  of  the  clear  and  distinct  provisions 
as  to  ownership.  "The  parties  therein 
dealt  with  a  specific  part  of  the  contract, 
they  expressed  themselves  clearly  upon 
the  subject,  and  it  is  not  to  be  presumed, 
in  the  absence  of  clear  expression  or  nec- 
essary implication,  that  they  intended  to 
supersede  this  provision  in  dealing  with 
other  specific  or  general  parts  of  the 
agreement."  United  States  z'.  .Ansonia 
Brass,  etc..  Co.,  218  U.  S.  452.  54  U  Ed. 
1107.  31   S.  Ct.  49. 

"Tn  Clarkson  z\  Stevens.  106  U.  S.  505, 
27  L.  Ed.  139,  1  S.  Ct.  200.  *  *  *  the 
contract  provided  that  the  materials  re- 
ceived at  the  yard  for  the  construction  of 
the  steamer  should  be  distinctly  marked 
with  the  letters  U.  S..'  and  should  be- 
come the  propertv  of  and  belong  to  the 
United  States.  There  was  no  provision 
that  title  to  the  vessel  should  vest  in  the 
United  States  as  fast  as  parts  thereof 
were  constructed,  and  Mr.  Justice  Mat- 
thews, who  delivered  the  opinion  of  the 
court,  approved  the  opinion  of  the  court 
of  errors  and  appeals  of  New  Jersey,  ex- 
pressing the  view  that  the  declaration  as 
to  the  materials  excluded  the  implication 
sought  to  he  raised  as  to  the  title  in  the 
unfinished  ship;  'for,"  said  Mr.  Justice 
Matthews,  'the  inference  is  obvious,  from 
the  particularity  of  such  a  provision,  that 
the  larger  interest  would  not  be  left  to 
mere  intendment.'  P.  516."  United  States 
V.  Ansonia  Brass,  etc..  Co.,  218  U.  S.  452, 
54  L.  Ed.   1107.  31  S.  Ct.  49. 


1248 


Vol.  XI. 


IVORKIXG  COX  TRACTS. 


1125 


c.  Recognition  of  Liens  of  Laborers  and  Materialmen. — Provisions  for  Re- 
lease of  Liens  before  Partial  Payments.— A  contract  for  the  construction 
of  a  vessel  for  the  federal  government  which  contains  no  provision  for  the 
passing  of  title  to  the  vessel  on  partial  payments,  but,  on  the  contrary,  stipulates 
that,  on  certain  conditions,  the  title  shall  vest  in  the  government  as  collateral 
security,  and  provides  for  the  release  of  liens  before  partial  payments  shall 
be  required,  must  be  deemed  to  have  been  made  in  recognition  of  the  rights 
of  those  furnishing  work  or  material  for  the  vessel  to  secure  their  claims  by 
liens,  which  it  is  made  the  duty  of  the  contractor  to  provide  for  in  order  to 
protect  the  title  of  the  government. ^■■^'' 

H.  Assignment.— See  post,  "Bond  of  Public  Contractor  for  Security  of 
Laborers  and  ^Materialmen."  VIII i-<. 

I.  Commercial  or  Trade  Meaning  of  Words  and  Terms.— Where  a 
working  contract  gives  to  a  word,  term  or  phrase  as  therein  used,  a  plain  and 
unambiguous  signification,  the  commercial  or  trade  meaning  of  such  terms,  etc., 
is  irrelevant.^-**     And  in  such  case,  where  one  of  the  parties,  with   full  knowl- 


1125-13b.  United  States  z\  Ansonia 
Brass,  etc.,  Co.,  218  U.  S.  452,  54  L.  Ed. 
1107.  31  S.  Ct.  49.  modifying  Hawes  &  Co. 
V.  Trigg  Co..  110  Va.  165,  65   S.   E.  538. 

Intervention  in  proceedings  to  enforce 
lien  under  state  laws. — There  is  no  room 
for  the  application  of  the  doctrine  gov- 
erning cases  where  the  United  States 
clamis  an  mterest  in  property  lawfully  in 
possession  of  the  court  which  is  admin- 
isienng  it,  as  in  equity  or  in  admiralty, 
and  the  government  intervenes  to  protect 
its  interest  therein,  that  its  rights  must 
be  adjudicated  in  recognition  of  rights 
and  demands  of  others  interested  in  the 
same  property,  where  a  vessel,  building 
for  the  United  States,  in  the  hands  of  a 
receiver  appointed  under  the  state  supply 
lien  law,  has  been  released  to  the  United 
States  under  a  stipulation  which  fully 
protects  the  rights  of  the  United  States, 
,.ninh  claims  tlie  exclusive  right  and  title 
to  the  vessel  as  far  as  the  parts  were  com- 
pleted and  paid  for.  United  States  r.  An- 
sonia Brass,  etc..  Co.,  218  U.  S.  452,  54  L. 
Ed.  1107,  31  S.  Ct.  49,  modifying  Hawes 
T.  Trigg  Co.,  110  Va.  165,  65  S.  E.  538. 

-■^Fert  of  Stipulation  for  release  of  ves- 
sel in  hands  of  receiver. — A  stipulation 
executed  by  the  United  States  district  at- 
torney on  behalf  of  the  government,  con- 
formably to  U.  S.  Rev.  Stat.,  §§  3753,  3754, 
U.  S.  Comp.  Stat.  1901,  p.  2530,  with  a 
view  to  obtaining  possession  of  vessels 
building  for  the  United  States,  which 
were  in  the  hands  of  a  receiver  appointed 
in  proceedings  imder  a  state  supply  lien 
law,  does  not  deprive  the  United  States 
of  any  right  which  it  had  to  assert  claims 
to  priority  under  the  building  contracts 
or  rights  existing  by  reason  of  the  sov- 
ereignty of  the  United  States,  since  the 
evident  purpose  of  these  sections  is  that 
neither  the  United  States  nor  the  claim- 
ants to  the  property  shall  lose  any  rights 
because  of  the  release  under  the  stipula- 
tion, but  the  rights  of  the  parties  shall 
continue  to  be  such   as  they  were  before 


the  change  of  possession.  United  States 
■V.  Ansonia  Brass,  etc.,  Co.,  218  U.  S.  452, 
54  L.  Ed.  1107,  31  S.  Ct.  49,  modifymg 
Hawes  v.  Trigg  Co.,  110  Va.  165,  65  S.  E. 
538. 

1125-14a.  Trade  meaning  of  words 
"measured  in  place." — Payment  for  re- 
moving the  earth  which  may  slide  into 
the  channel  from  the  sides  or  slopes 
during  excavation  is  so  clearly  excluded 
by  a  dredging  contract  as  to  prevent  giv- 
ing the  words  "measured  in  place"  a  trade 
meaning  which  demands  a  different  con- 
struction, where  the  specifications  provide 
for  payment  by  the  cubic  yard,  measured 
in  place,  determined  by  surveys  made  be- 
fore dredging  is  commenced  and  after 
completion,  require  that  the  work  shall 
be  plainly  located  by  stakes  and  ranges, 
which  shall  be  kept  continually  in  place, 
and  preclude  extra  allowance  for  exca- 
vating material  different  from  that  therein 
described,  or  payment  for  work  outside 
the  designated  lines  of  excavation  or  be- 
low the  specified  depth,  and  state  that 
any  material  deposited  otherwise  than 
specified  and  agreed  upon  must  be  re- 
moved by  the  contractor  at  his  own  ex- 
pense, that  no  guaranty  is  given  as  to  the 
nature  of  the  bottom,  and  that  no  claim 
will  be  made  for  any  excess  or  deficiency 
in  the  estimate  of  quantitj^  Bowers,  etc.. 
Dredging  Co.  v.  United  States,  211  U.  S. 
176.  53  L.  Ed.  136,  29  S.  Ct.  77. 

"If  it  be  that  the  court  below  was  cor- 
rect in  its  conclusion  that  the  contract 
gave  to  the  words  'measured  in  place,'  as 
therein  used,  a  pla-in  and  unambiguous 
signification,  it  is  obvious  th'\t  the  abstract 
or  commercial  meaning  of  those  words, 
upon  the  hypothesis  that  they  have  such 
meaning,  was  rightly  held  to  be  irrele- 
vant.' "  Bowers,  etc..  Dredging  Co.  v. 
United  States,  211  U.  S.  176,  53  L.  Ed.  136, 
29  S.  Ct.  77. 

"To  separate  the  words  'measured  in 
place'  from  all  the  other  provisions  of  the 


12  U  S  Enc— 7! 


1249 


1125-1127  WORKING    CONTRACTS.  Vol.  XL 

edge  of  the  meaning  affixed  to  the  terms  of  a  contract  by  the  other,  enters  inta 
a  supplemental  contract  with  the  same  terms,  he  is  bound  by  such  interpreta- 
tion.i^'' 

III.    Alteration,  Modification  and  Rescission. 

Power  to  Change  Details. — See  ante,  "Mutual  Assent,"  I,  B. 

Modification  of  Schedule  by  Provisions  in  Contract  Subsequently  Ex- 
ecuted.— Provisions  in  a  schedule  for  the  construction  of  barges  for  the  United 
States,  giving  with  much  detail  the  weight  and  dimensions  of  structural  mate- 
rials, are  not  affected  by  a  provision  in  the  contract  subsequently  entered  into 
for  the  construction  of  such  barges  in  accordance  with  the  specifications  con- 
tained in  such  schedule,  "with  such  modifications"  as  are  shown  on  a  specified 
drawing  outlined  in  a  designated  letter,  where  such  drawing,  without  any  ref- 
erence to  weight  and  dimensions  of  materials,  gives  a  schedule  of  displacement,, 
load,  and  draft,  with  the  total  net  weight  of  the  barge,  the  latter  authorizes 
distribution  of  such  weight  in  any  manner  desired,  and  the  contract  elsewhere 
authorizes  an  inspection  of  all  the  "material"  furnished,  provides  for  payment 
for  the  barges  when  completed  in  accordance  with  the  "specifications,"  letter, 
and  drawing,  and  that  no  change  or  modification  involving  an  alteration  in  the 
"specifications  as  to  character,  quantity,  and  quality,"  of  material,  which  would 
either  increase  or  diminish  the  cost  of  the  work,  should  be  made  unless  agreed 
to  in  v/riting.^^^  The  provision  in  regard  to  the  right  of  the  government  at 
any  time  during  the  progress  of  the  work  to  inspect  all  the  materials  furnished 
clearly  imports  that  the  contract  had  precisely  settled  the  character  of  such 
material.     So  also  does  the  provision  in  regard  to  final  inspection. ^•^'' 

IV.  Termination  or  Forfeiture. 

See  post,  "Annulling  and  Reletting  Government   Contracts,"   \ ,  D,  3. 

V.    Performance  or  Breach. 

D.  Time — 2.  Time  as  Essence — a.  In  General. — Time  may  be  of  the  es- 
sence in  a  working  contract. ^^ 

c.    Waiver  of  Nonperformance. — See  post,  "Release,"  \ ,  J. 

3.  Annulling  and  Reletting  Government  Contracts. — The  interest  of 
the  government  in  the  result  or  performance  of  the  work  stipulated  for  in  a 
working  contract  makes  it  reasonable  to  reserve  the  right  to  employ  someone 
else,  if,  when  time  enough  had  gone  by  to  show  what  was  likely  to  happen,  it 

contract,    in    order    to    give    them    an    as-  1125-15a.      Modification   of   schedule   by 

sumed  or  proven  abstract  trade  meaning,  subsequent    contract. — United     States     v. 

repugnant  to  their  significance  in  the  con-  Ellicott,  223   U.   S.  524,  56  L.   Ed.   535,  32 

tract,    would    be  to    destroy,    and    not    to  S.  Ct.  334. 

sustain  and  enforce,  the  contract  require-  1125-15b.  United  States  v.  Ellicott,  223 
ments.'  "'  Bowers,  etc..  Dredging  Co.  v.  U.  S.  524,  56  L.  Ed.  535,  32  S.  Ct.  334. 
United  States,  211  U.  S.  176,  53  L.  Ed.  136,  1127-23.  A  contract  to  grind  sugar  cane 
29  S.  Ct.  77.  implies  on  its  face,  if  read  with  any 
1125-14b.  A  contractor  for  a  public  im-  knowledge  of  the  business,  that  it  has 
provement,  who,  pending  a  dispute  with  reference  to  seasons,  and  that  it  is  more 
the  government  as  to  his  right  to  com-  definite  than  a  simple  grammatical  inter- 
pensation  for  certain  work,  enters  into  a  pretation  of  the  words  would  express, 
supplemental  contract  with  the  same  An  illustration  suggested  at  the  argument 
terms  and  specifications  as  the  original,  brings  it  home  to  those  of  us  whose  ex- 
with  full  knowledge  of  the  meaning  af-  perience  has  been  in  the  north.  A  con- 
fixed by  the  government  to  the  terms  of  tract  to  reap  a  field  of  wheat,  with  no 
such  original  contract,  which  had  been  mention  of  time,  would  not  leave  the  con- 
insisted  upon  by  it  in  carrying  on  previous  tractor  free  to  choose  his  own  time.  The 
operations,  is  precluded  from  claiming  grinding  of  cane  must  be  done  in  the 
compensation  under  the  new  contract  for  grinding  season,  and  a  contract  to  grind 
any  work  of  that  character.  Bowers,  etc.,  is  a  contract  to  grind  in  the  grinding  sea- 
Dredging  Co.  V.  United  States,  211  U.  S.  son.  Porto  Rico  Sugar  Co.  v.  Lorenzo,. 
176,  53  L.  Ed.  136,  29  S.  Ct.  77.  222  U.  S.  481,  56  L.   Ed.  277,  32   S.   Ct.  133.. 

1250 


Vol.  XL 


WORKING   COXTRACrS. 


1128 


saw  that  it  probably  would  not  get  what  it  bargained  for  from  the  hands  of 
the  contractor.  But  it  would  be  a  very  severe  construction  of  the  contract, 
a  contract,  too,  framed  by  the  United  States,  to  read  the  reservation  of  a  right 
to  annul  for  want  of  a  diligence  not  otherwise  promised,  as  importing  a  promise 
to  use  such  diligence  as  should  satisfy  the  judgment  of  the  engineer  in  charge. 
It  is  one  thing  to  make  the  right  to  continue  work  under  the  contract  depend 
upon  his  approval,  another  to  make  his  dissatisfaction  with  progress  conclusive 
of  a  breach,  and  in  the  absence  of  express  terms  such  construction  will  not  be 
placed  upon  such  a  contract.-"^  Where  there  is  time  enough  left  for  the  con- 
tractor to  finish  the  work  under  the  contract  when  the  government  terminated 
their  employment,  and  they  might  have  done  the  work  in  time  except  for  pro- 
hibition, the  government  is  not  entitled  to  assert  a  breach  of  contract  and  hold 
the  contractors  for  the  difference  in  cost  of  completion.-'''  The  word  "annul"' 
in  such  contract  means  "refuse  to  perform  further,"  not  "rescind"'  or  "avoid. "-"'^ 
At  the  time  when  the  notice  was  given,  it  was  merely  a  ceremony  to  mark  the 
point  of  default  as  a  preliminary  to  employing  someone  else.-"*^  The  obliga- 
tions of  a  contract  for  a  public  work,  so  far  as  applicable  to  a  case  of  the  con- 
tractor's default,  including  the  right  reserved  to  the  government  to  secure 
someone  else  to  complete  the  work,  and  charge  the  original  contractor  with 
the  reasonable  dift'erence  in  cost,  remained  in  force  after  the  government,  ex- 
ercising its  option,  declared  the  contract  null  and  void  for  the  contractor's  fail- 
ure to  perform,  w'ithout  prejudice  to  its  right  to  recover  for  defaults  therein  or 
violations  thereof.-'*"  The  right  of  the  government  under  a  contract  for  a  public 
work  to  charge  the  contractor  with  the  reasonable  difference  in  cost  in  case  of 


1128-27a.  United  States  :■.  O'Brien,  220 
U.   S.  321,  0.3  L.  Ed.  481,  31  S.  Ct.  406. 

1128-27b.  "The  right  to  terminate  the 
employment  of  the  defendants,  coupled 
with  a  provision  for  monthly  payments 
based  upon  the  amount  of  material  re- 
moved, and  therefore,  of  course,  giving- 
little  pay  for  little  work,  is  the  protection 
expressly  stipulated  bv  the  United  States."' 
Jjnited  States  v.  O'Br'ien,  220  U.  S.  321,  5.5 
L.  Ed.  481,  31  S.  Ct.  406. 

"The  sole  material  express  promise  of 
the  contractors  was  to  complete  the  work 
by  July  1,  1902.  If  the  work  was  done  at 
that  date,  that  promise  was  performed, 
no  matter  how  irregularly  or  with  what 
delays  in  the  earlier  months.  Under  its 
term.s  the  United  States  was  not  con- 
cerned with  the  stages  of  performance, 
but  only  with  the  completed  result." 
United  States  v.  O'Brien,  220  U.  S.  321,  55 
L.   Ed.  481,  31  S.  Ct.  406. 

1128-27C.  "The  ill-chosen  word  'annul' 
in  the  contract,  repeated  in  the  notice  to 
the  contractors  and  in  the  complaint,  can 
not  be  taken  literally  in  any  of  them.  It 
means  'refuse  to  perform  further.'  not 
'rescind'  or  'avoid.'  Philadelphia,  etc.,  R. 
Co.  V.  Howard.  13  H-.w.  307.  340.  14  L. 
Ed.  157.  For,  if  the  contract  were  made 
naught  by  the  governor's  election  and  no- 
tice, all  rights  under  it  would  be  at  an 
end,  whereas  it  provides  in  terms  that 
rights  shall  arise  upon  annulment,  which, 
but  for  this  provision  in  the  contract,  the 
government  would  not  have."'  United 
States  z:  O'Brien.  220  U.  S.  321,  55  L.  Ed. 
481,  31  S.  Ct.  406. 


In  United  States  r.  McMullen,  222  U. 
S.  460,  56  L.  Ed.  269  32  S.  Ct.  128,  the 
court  said:  "The  infelicity  of  the  word 
'annul'  has  been  adverted  to  and  its  mean- 
ing explained  heretofore.  If  notice  had 
been  given  before  the  final  breach  and 
abandonment,  it  would  have  meant  simply 
that  the  United  States  would  proceed  no 
further  with  the  contractor  under  the 
contract,  not  that  it  rescinded  or  avoided 
it.  Philadelphia,  etc..  R.  Co.  f.  Howard, 
13  How.  307.  340,  14  L.  Ed.  157;  United 
States  :•.  O'Brien,  220  U.  S.  321,  328,  55  L. 
Ed.  481,  31  S.  Ct.  406." 

1128-27d.  United  States  v.  McMuUen. 
222  U.   S.  460.  56  L.   Ed.  269,  32  S.  Ct.   128. 

1128-27e.  United  States  v.  McMullen, 
222  U.  S.  460.  56  L.  Ed.  269,  32  S.  Ct.  128. 
reversing  judgment  (1909)  McMullen  z: 
United  States,  167  F.  460,  93  C.  C.  A.  96. 

"The  cost  to  the  United  States  was  the 
least  for  which  it  could  get  the  work  done 
under  the  conditions  upon  which  the  gov- 
ernment was  bound  to  contract,  and  must 
be  assumed  to  have  been  reasonable,  in 
the  absence  of  any  evidence  to  the  con- 
trary. New  York  ;■.  Second  Ave.  R.  Co., 
102  N.  Y.  572,  55  Am.  Rep.  839,  7  N.  E. 
005;  Baer  r.  Sleichcr.  82  C.  C.  A.  281,  153 
Fed.  129.  Tt  was  less  than  the  sum  stip- 
ulated 3>  liquidated  dainases.  Sr.n  Prim- 
ing-, etc.,  Ass'n  v.  Moore,  183  U.  S.  642,  46 
L.  Ed.  366,  22  S.  Ct.  240:  United  States  t-. 
Bethlehem  Steel  Co.,  205  U.  S.  105,  119. 
51  L.  Ed.  731.  27  S.  Ct.  450."  United 
States  7'.  McMullen.  222  U.  S.  460,  56  L. 
Ed.  260.  32   S.   Ct.    128. 


1251 


1128-1130 


WORKIXG  CONTRACTS. 


Vol.  XI. 


a  reletting  after  his  default  is  not  defeated  because  this  second  contract  does 
not  appear  to  have  completed  the  work  intended  to  be  accomplished  by  the  first, 
where  the  work  done  under  the  new  contract  was  work  which  the  first  contractor 
had  agreed  to  perform.-"* 

Measure  of  Recovery. — The  excess  cost  of  completing  a  public  work, 
recoverable  by  the  United  States  under  the  contract  in  case  of  the  failure  of 
the  contractor  to  "complete  this  contract  as  specified  and  agreed  upon,"  cati 
not  be  recovered  where  there  was  time  enough  left  to  complete  the  work  within 
the  limit  set  by  the  contract  when  the  government  engineer  gave  the  written 
notice  of  annulment  for  failure  to  prosecute  the  work  "faithfully  and  diligently," 
provided  for  by  another  clause  in  the  contract,  under  which  was  incurred  only 
a  forfeiture  of  reserved  percentages,  and  money  due.^'^s 

E.  Quality  of  Work. — See  post,  "Superintendence  and  Control,"  V,  F. 

F.  Superintendence  and  Control. — Where  a  working  contract  provides 
that  the  work  shall  be  executed  under  the  supervision  of  the  engineer  in  charge 
or  his  duly  authorized  agent  who  shall  pass  upon  the  character  of  the  material 
furnished, ■^'^'^  allow  or  disallow  items  for  expense  of  inspection  ;^*^'^  or  who 
shall  determine  the  time  of  performing  parts  of  the  w^ork  with  reference  to  the 
suitable  condition  of  the  work  already  done  for  such  performance  ;-^'^'^  the  agent's 
judgment  or  determination  is  conclusive,  and  where  damage  or  delay  results 
from  such  determination,  no  matter  how  long  the  delay  or  how  great  the  dam- 
age, the  contractor  is  entitled  to  no  relief,  unless  it  appear  that  the  act  of  the 


1128-27f.  United  States  z'.  AIcMuUen,  222 
U.  S.  460,  56  L.  Ed.  269,  32  S.  Ct.  128. 

1128-27g.  United  States  v.  O'Brien,  220 
U.  S.  321,  55  L.  Ed.  481,  31  S.  Ct.  406,  af- 
firming judgment  (1908)  163  F.  1022,  89  C. 
C.  A.  664. 

1130-36a.  A  strict  construction  by  the 
inspector  under  a  contract  for  the  con- 
struction of  a  jetty  in  a  harbor  for  the 
United  States,  providing  for  a  rigid  in- 
spection of  material  and  the  rejection  of 
such  as  does  not  conform  to  specifica- 
tions, so  as  to  reject  stones  which  do  not 
measure  up  to  requirements  at  the  nar- 
rowest, thinnest,  and  shortest  points,  in- 
stead of  accepting  mean  or  average 
measures,  does  not  entitle  the  contractor 
to  damages  resulting  from  such  rejection 
and  the  use  of  the  rejected  material  in  a 
place  where  inferior  material  was  called 
for,  although  a  supplementary  agreement 
is  subsequently  made  for  the  acceptance 
of  stones  not  conforming  strictly  to  the 
letter  of  the  specifications,  where  their 
use  would  make  the  work  equally  stable 
with  those  conforming  strictly  to  specifi- 
cations. Ripley  v.  United  States,  223  U. 
S.  695,  53  L.   Ed.  614,  32   S.  Ct.  352. 

1130-36b.  The  decision  of  the  chief  of 
engineers  in  allowing  or  disallowing 
items  for  expenses  of  inspection  in  the 
construction  of  a  jetty  in  a  harbor  for  the 
United  States  during  the  suspension  of 
work  because  of  a  yellow  fever  epidemic 
is  conclusive  on  the  court,  in  the  absence 
of  fraud,  or  gross  mistake  implying  fraud, 
where  the  contract  authorized  the  remis- 
sion of  charges  for  such  expenses  for  so 


much  time  as,  in  the  engineer's  judgment, 
may  have'  been  actually  lost  by  epidemic. 
Ripley  v.  United  States,  223  U.  S.  695,  56 
L.  Ed.  614,  32  S.  Ct.  352. 

1130-36C.  One  having  a  contract  with 
the  United  States  to  build  a  jetty  in  a  har- 
bor with  a  provision  that  crest  blocks 
should  be  put  in  place  on  the  jetty  as  the 
work  progressed,  when,  "in  the  judgment' 
of  the  United  States  agent  in  charge,"  the 
core  or  mound  of  riprap  had  sufficiently 
consolidated,  is  not  entitled  to  relief  be-* 
cause  of  any  delay,  however  great,  by  the 
refusal  of  such  agent  to  permit  the  lay- 
ing of  the  blocks,  unless  such  refusal  is 
the  result  of  fraud,  or  such  gross  mistake 
as  would  imply  fraud,  but  is  entitled  to 
recover  damages  when  the  refusal  was  a 
gross  mistake  and  an  act  of  bad  faith. 
Ripley  z\  United  States,  223  U.  S.  695,  56 
L.  Ed.  614,  32  S.  Ct.  352. 

"The  contract  provided  that  these 
l)locks  sliould  be  put  in  place  when,  'in 
the  judgment  of  the  United  States  agent 
in  charge,'  the  core  or  mound  had  suffi- 
ciently consolidated.  Until  the  agent  de- 
termined that  the  core  had  settled,  the 
contractor  had  no  right  to  do  this  part  of 
the  work.  No  matter  how  long  the  delay 
or  how  great  the  damage,  he  was  entitled 
to  no  relief  unless  it  appeared  that  the 
refusal  was  the  result  of  'fraud,  or  of  such 
gross  mistake  as  would  imply  a  fraud.' 
Martinsburg,  etc.,  R.  Co.  v.  March,  114  U. 
S.  549,  29  L.  Ed.  255,  5  S.  Ct.  1035;  United 
States  z:  Mueller,  113  U.  S.  1 '.3;  28  L  Ed. 
946,  5  S.  Ct.  380."  Ripley  z:  United  States, 
223  U.  S.  695,  56  L.  Ed.  614,  32  S.  Ct.  352. 


1252 


Vol.  XI. 


WORKING  CON>TRACTS. 


1130-1133 


agent  was  the  result  of  fraud  or  of  such  gross  mistake  as  to  imply  a  fraud.''*''* 

A  contractor,  by  failure  to  take  an  appeal  to  the  engineer  in  charge  or  the 
chief  engineer  from  a  decision  of  his  agent  in  charge  in  such  cases,  does  not  lose 
his  right  to  recover  damages  for  delay  resulting  from  the  agent's  refusal  to  al- 
low the  completion  of  the  work  where  there  is  no  requirement  or  provision  for 
such  appeal  in  the  contract.^^^  Where  the  contractor  attacks  the  judgment  of 
the  agent  in  charge  he  has  the  burden  of  proving  fraud  or  such  gross  mistake 
as  implies  fraud.-^*^^ 

G.  Reference  of  Matters  of  Dispute  to  Architect  or  Engineer. — See 
ante,  "Superintendence  and  Control,""  V,  F. 

H.  Excuses  for  Nonperformance — 5.  Breaking  Dowx  of  AIachine^ry. — 
Performance  of  an  absolute  undertaking  stipulated  for  in  a  working  contract  is 
not  excused  by  the  repeated  breaking  down  of  the  machiner\^i^  or  facts  of 
that  sort. 

I.  Liability  for  Breach — 2.  Liability  of  Promisor — a.  Negligence,  De- 
fault or  Improper  Interference — (3)  Liability  of  United  States. — -See  ante,  "Su- 
perintendence and  Control,"  \',  F. 

3.  [Measure  of  Damages.^ — Amendment  for  Failure  to  Prosecute  "Work 
Diligently. — See  ante,  "Annulling  and  Reletting  Government  Contracts,"  V, 
D,  3. 

Expense  of  Completion.— See  post,  "Deduction  of  Expense  of  Completion,"' 
VI,  C,  4. 

J.  Release. — A  contract  for  the  construction  of  a  vessel  for  the  government 
may  provide  for  the  execution  of  a  release  to  the  government  in  a  form  therein 
specified  of  all  claims,  etc.,  arising  out  of  such  contract  upon  the  delivery  of 
the  vessel.-' ^^    But  in  such  case  the  parties  may  waive  this  part  of  the  contract*^** 


1130-36d.  The  verj^  extent  of  the  power 
and  the  conclusive  character  of  his  deci- 
sion raises  a  corresponding  dnty  that  the 
agent's  judgment  shall  be  exercised  not 
capriciously  or  fraudulently,  but  reason- 
ably, and  with  due  regard  to  the  rights 
of  both  the  contracting  parties.  Ripley  z'. 
United  States,  223  U.  S.  895,  5G  L.  Ed. 
G14,  32  S.  Ct.  352. 

A  finding  by  the  court  that  the  inspect- 
or's refusal  was  a  gross  mistake  and  an 
act  of  bad  faith,  necessarily  leads  to  the 
conclusion  that  the  contractor  was  en- 
titled to  recover  the  damages  caused 
thereby.  Ripley  7\  United  States,  223  U. 
S.  69.5. '.56  L.  Ed.  614.  32   S.  Ct.  352. 

1130-36e.  A  contractor  with  the  United 
States  for  the  construction  of  a  jetty  in  a 
harbor,  under  a  contract  providing  that 
crest  blocks  should  be  put  in  place  on 
the  jetty  as  the  work  progressed,  when, 
"in  the  judgment  of  the  United  States 
agent  in  charge,  the  core  or  mound  of 
riprap  had  sufficiently  consolidated,  does 
not,  by  submitting  to  the  wrongful  re- 
fusal of  such  agent  to  permit  the  laying 
of  the  blocks,  on  the  ground  that  the 
mound  or  core  had  not  sufficiently  con- 
solidated, without  taking  an  appeal  to  the 
engineer  in  charge,  lose  his  right  to  re- 
cover damages  from  such  refusal  because 
of  another  provision  for  rigid  inspection 
by  an  inspector  appointed  on  the  part  of 
the  government  before  acceptance  of  "ma- 
terial" furnished,  and  the  rejection  of 
such  as  does  not  conform  to  the  specifi- 


cations, and  making  the  decision  of  the 
"engineer  officer"  in  charge  as  to  "'quality 
and  quantity"  final.  Ripley  v.  United 
States,  223  U.  S.  695,  56  L.  Ed.  614,  32  S. 
Ct.  352. 

1130-36f.  .\  contractor  with  the  United 
States  for  the  construction  of  a  ielty  in 
a  harbor,  who  claims  to  have  been  dam- 
aged by  a  wrongful  refusal  of  the  govern- 
ment agent  to  permit  the  laying  of  crest 
blocks  on  the  jetty  when  the  core  or 
mound  had  sufficiently  settled,  under  a 
provision  of  the  contract  for  such  laying 
when,  "in  the  judgment  of  the  United 
States  agent  in  charge,"  the  mound  had 
sufficiently  settled,  has  the  burden  of 
showing  the  number  of  working  days 
l)etween  the  first  wrongful  refusal  and  the 
first  permission  to  lay  blocks,  and  on  how 
many  days  he  was  unable  to  do  labor  of 
another  character  on  the  jetty.  Ripley  7\ 
United  States,  223  U.  S.  695,  56  L.  Ed.  614, 
32  S.  Ct.  352. 

1132-41a.  Breaking  machinery. — Porto 
Rico  Sugar  Co.  :•.  Lorenzo.  222  U.  S.  481. 
56   L.    Ed.   277,  32   S.   Ct.   133. 

Failure  to  perform  an  absolute  under- 
taking to  grind  sugar  cane  during  the 
grinding  season  is  not  excused  bv  the 
repeated  breaking  down  of  the  machinery. 
Porto  Rico  Sugar  Co.  v.  Lorenzo,  222  U. 
S.  481,  56  L.  Ed.  277.  32  S.  Ct.  133. 

1133-49a.  Cramp  &  Sons,  etc..  Engine 
Bldg.  Co.  i:  United  States,  216  U.  S.  494, 
54  L.   Ed.  587.  30  S.   Ct.  392. 

1133-49b.    Waiver. — Wlicrc    neither    the 


1253 


1133-1134 


WORKING  CONTRACTS. 


Vol.  XL 


and  the  secretary  of  the  navy  may  accept  a  release  to  the  government  from  the 
builders  of  a  battleship,  which  leaves  for  determination  in  the  courts  claims  for 
unliquidated  damages  growing  out  of  the  contract.^^'' 

VI.  Compensation. 

C.  Ascertainment  of  Amount — 3.  Extra  Work. — See  ante,  "Release," 
V,  J. 

4.  Deduction  of  Expensi-:  oe  Comple:tion. — The  amount  necessarily  ex- 
pended by  the  owner  to  complete  a  building  contract  under  an  adjustment  by 
the  architect,  after  there  had  been  a  strike  and  cessation  of  work  on  account  of 
the  character  and  condition  of  the  labor  furnished  by  the  contractor,  should  be 
credited  against  the  contract  price,  where  the  contract  provides  that  under  such 
circumstances  the  owner  shall  have  full  authority  "to  arbitrate  or  adjust  the 
matter,"  and  that  the  contractor  shall  make  good  the  loss,  to  be  fixed  by  the 
architect  or  by  arbitration. •''•^'^ 

5.  Rupaymdnt  in  Continge;ncy  of  Profit. — A  contractor  for  the  construc- 
tion of  a  public  work  realizes  a  profit  "under  said  contract  with  the  United 
States,"  within  the  meaning  of  an  agreement  to  repay,  in  the  contingency  of  such 
profit,  certain  moneys  advanced,  where  the  contractor,  without  himself  doing 
the  work,  made  a  profit  out  of  his  arrangement  with  a  subcontractor,  although 
the  work  was  actually  constructed  at  a  heavy  loss.^^^ 

VII.  Extra  Work. 

A.  What  Constitutes. — In  contracts  for  public  work  whatever  the  govern- 
ment had  not  promised  to  pay  for  the  contractor  had  to  do  in  order  to  offer  the 


contractor  company  nor  tlie  goveriiment 
ifisisted  on  the  delivery  of  the  vessel  at 
the  time  it  was  launched  and  before  it 
was  armored,  but  the  government  left  the 
vessel  with  the  company,  waiting  for 
armor  to  be  put  on;  armor  which  it  had 
not  then  been  able  to  secure  and  tender 
1o  the  company;  and  when  the  question 
arose  as  to  a  settlement,  it  did  not  insist 
upon  a  release  as  specified  in  the  contract; 
this  contract  was  plainl)^  treated  by  both 
parties  as  impracticable,  and  therefore 
waived.  Cramp  &  Sons,  etc.,  Engine 
Bldg.  Co.  V.  United  States,  216  U.  S. 
494,  54  L.   Ed.   587,  30  S.   Ct.  392. 

1133-49C.  Judgment,  Cramp  &  Sons 
Co.  V.  United  States  (1908),  43  Ct. 
CI.  202,  reversed.  Cramp  &  Sons,  etc., 
Engine  Bldg.  Co.  v.  United  States,  216 
U.  S.  494,  54  L.  Ed.  5S7,  30  S.  Ct.  392, 
following  Salomon  z'.  United  States,  19 
Wall.  17,  22  L.  Ed.  46;  Redfield  v.  Win- 
dom,  137  U.  S.  636,  34  L.  Ed.  811,  11  S. 
Ct.  97;  United  States  7'.  Barlow,  184  U. 
S.   123,  135,  46  L.   Ed.  463,  22   S.   Ct.  468. 

Claims  for  unliquidated  damages  on 
account  of  extra  work  caused  by  the  fed- 
eral government  are  not  included  in  a 
release  given  to  the  United  States  by  the 
builders  of  a  battleship,  of  all  and  all 
manner  of  debts,  dues,  sum  and  sums  of 
money,  accounts,  reckonings,  claims,  and 
demands  whatsoever,  in  law  or  in  equity, 
for  or  by  reason  of,  or  on  account  of, 
the   construction   of   the   vessel   under   the 


contract,  provided  that  the  release  shall 
not  be  taken  to  include  claims  arising  un- 
der the  contract  other  than  those  which 
the  secretary  of  the  navy  has  jurisdiction 
to  entertain,  although  the  release,  if  in 
the  form  specified  in  the  contract,  would 
have  extinguished  all  claims  against  the 
United  States  growing  out  of  such  con- 
tract. Judgment,  William  Cramp  &  Sons 
Co.  V.  United  States  (1908),  43  Ct.  CI. 
202,  reversed.  Cramp  &  Sons,  etc..  En- 
gine Bldg.  Co.  V.  United  States,  216  U. 
S.   494,   54   L.   Ed.   587,   30   S.   Ct.   392. 

'"The  .secretary  was  of  the  opinion  that, 
equitably,  there  was  something  due  to 
the  company,  and  yet,  realizing  that  that 
question  was  not  one  for  his  determina- 
tion, in  order  that  full  justice  might  be 
done,  he  consented  to  a  change  in  the 
terms  of  the  release,  and  this  he  had 
power  to  do.  Salomon  v.  United  States, 
19  Wall.  17,  22  L.  Ed.  46;  Redfield  v. 
Windom,  137  U.  S.  636,  34  L  Ed.  811,  11 
S.  Ct.  197;  United  States  z:  Barlow,  184 
U.  S.  123,  135,  46  L.  Ed.  463,  22  S.  Ct. 
468."  Cramp  &  Sons,  etc..  Engine  Bldg. 
Co.  V.  United  States,  216  U.  S.  494,  54  L. 
Ed.  587,  30  S.  Ct.  392. 

1134-53a.  Lupton's  Sons  Co.  f.  Auto- 
mobile Club,  225  U.  S.  489,  56  L.  Ed. 
1177,   32   S.   Ct.   711. 

1134-53b.  Judgment  (1907),  29  App.  D. 
C.  571,  affirmed.  Sand  Filtration  Corp.  57. 
Cowardin.  213  U.  S.  360,  53  L.  Ed.  833, 
29   S.   Ct.   509. 


1254 


A^ol.  XI. 


WORKING   CONTRACTS. 


1134-1137 


•completed  work  which  he  had  agreed  to  finish. ^^'^  A  loss  occasioned  during  a 
typhoon  by  the  pressure  and  the  action  of  the  wind  and  waves  must  be  borne  by 
the  contractor. •5*''^  A  contract  which  required  the  construction  of  a  bridge  in 
such  a  manner  as  not  to  impede  navigation  does  not  authorize  a  recovery  for 
extra  work  required,  by  the  exigencies  of  the  situation,  for  the  noninterruption 
of  navigation. ^^'^ 

B.  Right  to  Compensation.— See  ante,  "What  Constitutes,"  VII,  A.  And 
see  also,  ante,  "Release,"  V,  J. 

VIII.  Security  for  Completion,  Penalties  and  Forfeitures. 

See  post,  "Bond  of  Public  Contractor  for  Security  of  Laborers  and  Alaterial- 
tnen,"  VIII>4. 

Villi .    Bond   of   Public   Contractor  for   Security   of  Laborers   and  Ma- 
terialmen. 

A.  Time  of  Execution. — Want  of  consideration  can  not  be  urged  to  defeat 
an  action  on  the  bond  of  a  public  contractor,  given  conformably  to  Act  Aug.  13, 
1894,  c.  280,  28  Stat.  278  (U.  S.  Comp.  St.  1901,  p.  2523),  as  amended  by  Act 
Feb.  24,  1905,  c.  778,  33  Stat.  811  (U.  S.  Comp.  St.  Supp.  1909,  p.  948),  for  the 
protection  of  laborei^  and  materialmen,  because  it  was  not  executed  until  ten 
days  after  the  contract  was  made,  especially  where  the  bond  was  under  seal.'''^^ 


1134-56a.  Atlantic,  etc.,  Co.  v.  Philip- 
pine Islands,  219  U.  S.  17,  55  L.  Ed.  70, 
31   S.   Ct.   138. 

1134-56b.  Loss  during  a  typhoon. — The 
contractor  for  a  public  work  must  bear 
the  loss  occasioned  during  a  typhoon  by 
the  pressure  of  the  rock  revetment  and 
the  action  of  wind  and  waves,  although 
the  storm  would  have  done  no  damage 
had  not  the  structure  been  previously 
weakened  by  a  displacement  of  bulkhead 
and  revetinent  by  pressure  from  the  in- 
side fill,  where  the  extent  of  the  govern- 
ment's liability  under  the  contract  was 
expressly  restricted  to  paying  for  the  re- 
pair of  any  break  caused  by  pressure  re- 
sulting from  the  inud  fill,  and  the  con- 
tractor's responsibility  expressly  covered 
damage  to  the  bulkhead  or  revetment 
arising  from  wave  action,  or  from  pres- 
sure of  the  revetment  against  the  timber 
structure.  Atlantic,  etc.,  Co.  v.  Philippine 
Island,  219  U.  S.  17,  55  L.  Ed.  70,  31  S. 
Ct.    138. 

"The  case  is  stronger  for  the  govein- 
iTient  than  those  upon  policies  of  insur- 
ance, where  courts  refuse  to  look  be- 
hind the  immediate  cattse  to  remoter 
negligence  of  the  insured.  General  ^\u\. 
Ins.  Co.  z'.  Sherwood,  14  How.  351,  366, 
14  L.  Ed.  452;  Orient  Ins.  Co.  v.  Adams, 
123  U.  S.  67,  31  L.  Ed.  63,  8  S.  Ct.  68; 
Dudgeon  v.  Pembroke,  L.  R.  2  App.  Cas. 
284,  295,  14  Eng.  Rul.  Cas.  105.  Here, 
as  we  have  said,  the  plaintiff  can  not 
charge  the  defendant  with  negligence; 
the  immediate  event  was  one  of  which 
the  plaintifif  took  the  risk;  on  general 
principles  of  contract  it  took  that  risk 
imless  it  was  agreed  otherwise,  and  it 
does    not    matter    to    the    result    whether 


we  say  that  we  can  not  look  further 
l)ack  than  the  immediate  cause,  or  that 
the  undertaking  of  the  government  did 
not  extend  to  ulterior  consequences,  not 
specified,  of  the  break  for  repairing  which 
it  undertook  to  pay,  but  which  it  did  not 
cause."  Atlantic,  etc.,  Co.  v.  Philippine 
Islands,  219  U.  S.  17,  55  L.  Ed.  70,  31  S. 
Ct.   138. 

1134-560.  Work  to  insure  noninterrup- 
tion of  navigation. — The  erection,  pur- 
suant to  the  direction  of  the  government 
officer  in  charge,  of  a  temporary  liftspan, 
which  was  the  most  feasible  and  least 
expensive  substitute  which  could  be  em- 
ployed after  an  accident  during  the  per- 
formance of  a  contract  to  reconstruct  and 
remodel  a  government  bridge  over  the 
Mississippi  river  had  carried  away  a  sub- 
stantial part  of  the  unfinished  drawspan, 
together  with  the  false  work  supporting 
the  old  structure,  was  contemplated  by 
the  contract,  so  as  to  preclude  extra 
compensation  therefor,  where  the  imme- 
diate opening  of  navigation,  which  would 
have  been  seriously  interrupted  by  the 
restoration  of  the  false  work,  was  im- 
minent, and  the  contract,  although  con- 
taining many  minute  stipulations  looking 
to  uninterrupted  railway  service  across 
the  bridge,  with  no  express  requirement 
as  to  the  navigability  of  the  river,  had 
fixed  a  date  for  the  completion  of  the 
drawspan  sufficiently  early  ordinarily  to 
insure  noninterruption  of  navigation. 
Judgment  (1903),  38  Ct.  CI.  492,  affirmed. 
Phoenix  Bridsje  Co.  v.  United  States,  211 
U.  S.  188,  53  L.  Ed.  141,  29  S.  Ct.  81. 

1137-70a.  Title  Guaranty,  etc.,  Co.  v. 
Crane  Co.,  219  U.  S.  24,  55  L.  Ed.  72,  31 
S.    Ct.    140. 


12.-)5 


1137 


WORKING  CONTRACTS. 


Vol.  XL 


B.  Consideration. — See  ante,  "Time  of  Execution,"  Ylliy2,  A. 

C.  Claims  and  Claimants  Secured. — The  obligation  of  the  bond  required 
by  the  federal  statutes  from  a  public  contractor  for  the  protection  of  any  per- 
son or  persons,"^ ^'^  supplying  labor  or  materials  for  the  construction  of  "public 
works'"'^'^  is  that  the- contractors  shall  make  full  payment  to  all  persons  supply- 
ing them  with  labor  and  materials  in  the  prosecution  of  the  workJ*^*^  Claims 
for  labor  and  materials  supplied  to  a  vessel,  the  title  to  which  passes  to  the 
government  as  fast  as  paid  iov,"'^^  claims  for  cartage  and  towage,'^^*  claims 
for  patterns  furnished  the  contractor,'^ ^^  claims  of  subcontractors  furnishing 
labor    and   materials/'"^    claims    of   persons    furnishing   labor   and   materials   to 


1137-70b.  "Person  or  persons." — Man- 
kin  V.  United  States,  215  U.  S.  533,  54  L. 
Ed.   315,   30   S.    Ct.   174. 

1137-70C.  "Public  works  usually  are  of 
a  permanent  nature,  and  that  fact  leads 
to  a  certain  degree  of  association  be- 
tween the  notion  of  permanence  and  the 
phrase.  But  the  association  is  only  em- 
pirical, not  one  of  logic.  Whether  a 
work  is  public  or  not  does  not  depend 
upon  its  being  attached  to  the  soil;  if  it 
belongs  to  the  representative  of  the  pub- 
lic, it  is  public,  and  we  do  not  think  that 
the  arbitrary  association  that  we  have 
mentioned  amounts  to  a  coalescence  of 
the  more  limited  idea  with  speech  so 
absolute  that  we  are  bound  to  read  'any 
public  work'  as  confined  to  work  on  land. 
It  is  not  necessary  to  discuss  in  detail 
some  opinions  from  the  attorney  gen- 
eral's ofifice  in  cases  where  the  title  to 
the  vessel  did  not  pass  that  looked  rather 
in  the  opposite  direction.  It  is  enough 
to  say  that  there  has  been  no  such  clear 
and  established  construction  as  to  cause 
us  to  yield  our  own  view.  On  the  other 
hand,  the  decision  of  some  other  courts 
has  been  in  accord  with  the  judgment  be- 
low and  with  what  we  now  decide. 
United  States  use  of  Tidewater  Steel  Co. 
V.  Perth  Amboy  Shipbuilding  &  En- 
gineering Co.,  137  Fed.  689,  693;  American 
Surety  Co.  v.  Lawrenceville  Cement  Co., 
110  Fed.  717,  719;  United  States  use  of 
Standard  Furniture  Co.  v.  ^IJtna  In- 
demnity Co.,  40  Wash.  87,  82  Pac.  171." 
Title  Guaranty,  etc.,  Co.  v.  Crane  Co., 
219  U.   S.  24,  55  L.  Ed.  72,  31   S.   Ct.  140. 

1137-70d.  Hardaway  v.  National  Surety 
Co.,  211  U.  S.  552,  53  L.  Ed.  321,  29  S 
Ct.    202. 

1137-70e.  Title  Guaranty,  etc..  Co.  v. 
Crane  Co.,  219  U.  S.  24.  55  L.  Ed.  72.  31 
S.    Ct.    140. 

A  vessel  building  for  the  United  States, 
the  title  to  which  passes  to  the  govern- 
ment as  fast  as  paid  for,  is  a  "public 
work''  within  the  meaning  of  Act  Auij- 
13,  1894,  c.  280,  28  Stat.  278  fU.  S.  Comp. 
St.  1901,  p.  2523).  as  amended  by  Act 
Feb.  24,  1905,  c.  778,  ?.?,  Stat.  811  fU.  S. 
Comp.  St.  Supp.  1900,  p.  948),  requiring 
a  bond  from  the  contractor  for  the  pro- 
tection of  persons  furnishing  labor  or 
materials    for    the    construction    of    public 


works.  Title  Guaranty,  etc.,  Co.  v.  Crane 
Co.,  219  U.  S.  24,  55  L.  Ed.  72,  31  S.  Ct. 
140,  affirming  judgment  in  Same  v. 
Puget  Sound  Engine  Works  (1908),  163 
F.  168,  89  C.  C.  A.  618. 

United  States  v.  Ansonia  Brass,  etc., 
Co.,  218  U.  S.  452,  54  L.  Ed.  1107,  31  S. 
Ct.  49,  establishes  that  as  the  title  to  the 
completed  portion  of  the  vessel  passed, 
the  laborers  and  materialmen  could  not 
have  asserted  a  lien  under  the  state  law 
and  shows  that  such  claimants  are  within 
the  policy  of  the  statute. 

"It  also  contains  a  strong  intimation 
that  they  are  within  the  meaning  of  its 
words.  For  it  refers  to  the  statute,  and 
says  that  it  was  in  recognition  of  the 
inability  of  such  persons  to  take  liens 
upon  the  public  property  of  the  United 
States  that  congress  passed  the  act,  and 
adds  that,  in  view  of  this  purpose  to  pro- 
vide protection  for  those  who  could  not 
protect  themselves,  the  statute  has  been 
given  liberal  construction  by  this  court. 
See,  also.  United  States  use  of  Hill  t-. 
American  Surety  Co.,  200  U.  S.  197.  50 
L.  Ed.  435.  26  S.  Ct.  168."  Title  Guar- 
antv.  etc.,  Co.  v.  Crane  Co.,  iv:<  V.  S.  2^. 
55    L.    Ed.   72,   31    S.   Ct.    140. 

1137-70f.  Cartage  and  towage. — Claims 
for  cartage  and  towage  to  the  place  where 
a  vessel  is  building  for  the  United  States 
are  within  the  obligation  of  a  builder's 
bond;  given  conformably  to  the  Act  of 
August  13,  1894,  c.  280,  28  Stat.  278  (U. 
S.  Comp.  Stat.  1901,  p.  2523),  as  amended 
by  Act  of  February  24,  1905,  c.  778,  33 
Stat.  811  (U.  S.  Comp.  Stat.  Supp.  1909, 
p.  748),  for  the  protection  of  laborers  and 
materialmen.  Title  Guaranty,  etc.,  Co.  v. 
Crane  Co.,  219  U.  S.  24.  55  L.  Ed.  72,  31 
S.    Ct.    140. 

1137-70g.  Patterns. — Claims  for  pat- 
terns furnished  to  the  molding  depart- 
ment of  the  builder  of  a  vessel  for  the 
United  States,  are  within  the  obligation 
of  the  latter's  bond,  given  conform.ablv  to 
the  Act  Aug.  13.  1894.  c.  280,  28  Stat.' 278 
(U.  S.  Comp.  Stat.  Supp.  1901,  p.  948), 
for  the  protection  of  laborers  and  ma- 
terialmen. Title  Guaranty,  etc.,  Co.  v. 
Crane  Co..  219  U.  S.  24,  55  L.  Ed.  72,  31 
S.    Ct.    140. 

1137-70h.  Subcontractors. — Hardaway 
f.    National    Surety   Co..   211   U.    S.   552,    53 


1256 


»  Vol.  XI. 


WORKING  CONTRACTS. 


1137 


subcontractors,''^"  are  entitled  to  the  protection  of   such  bond. 
Assignee  or  Transferee  of  Contractor.— A  claim  for  labor  and  materials 


L.  Ed.  321,  29  S.  Ct.  202;  Mankin  z'. 
United  States,  215  U.  S.  533,  54  L.  Hd. 
315,    30    S.    Ct.   174. 

Persons  who  are  subcontractors.^ 
Persons  who,  in  view  of  the  financial  ena- 
barrassment  of  a  pul^lic  contractor,  un- 
dertake to  superintend  the  completion  of 
a  public  work  and  to  furnish  the  neces- 
sary funds,  tor  which  thej''  are  to  be  paid 
by  an  assignment  of  the  reserve  ftinu  in 
the  hands  of  the  government  and  by 
checks  or  payments  tmder  the  original 
contract,  are  not  subcontractors  fur- 
nishing labor  and  materials  tor  tlie  ful- 
fillment of  such  original  contract,  so  as 
to  be  entitled  to  the  protection  of  the 
bond  executed  pursuant  to  Act  Aug.  13, 
1894,  c.  280,  §  1,  28  Stat.  278  (U.  S.  Comp. 
St.  1901,  p.  2523).  Decree  (1907),  Hard- 
away  &  Prowell  :•.  National  Suretj^  C:< 
150  F.  465,  80  C.  C.  A.  283,  affirmed. 
Hardaway  v.  National  Surety  Co.,  211  U. 
S.  552,  53  L.  Ed.  321,  29  S.  Ct.  202,  dis- 
tinguishing Hill  z'.  American  Surety  Co., 
200  U.  S.  197,  50  L    Ed.  43fi,  2G  S.  Ct.  ItS. 

1137-70i.  Mankin  ?-.  United  States,  215 
U.  S.  533,  54  L.  Ed.  315,  30  S.  Ct.  174: 
Hardaway  v.  National  Surety  Co.,  211  U. 
S.   552,   53    L.   Ed.   321,   29   S.   Ct.   202. 

Tn  F^ill  V.  American  Surety  Co.,  200  U. 
S.  197.  50  L.  Ed.  436,  26  S.  Ct.  168,  the 
court  of  appeals  held  that  one  who  fur- 
nished labor  or  materials  in  the  carrying- 
out  of  a  contract  for  public  works,  al- 
though such  materials  were  furnished  to 
a  subcontractor,  to  whom  a  part  of  the 
work  had  been  let,  could  recover  upon  a 
bond  rriven  under  the  Act  of  August  13, 
1894  (28  Stat,  at  U  278,  chap.  280,  U.  S 
Comp.  Stat.  1901,  p.  2523).  Mankin  z\ 
United  States,  215  U.  S.  533,  54  L.  Ed. 
315.  30   S.   Ct.   174. 

In  the  case  of  United  States  use  of 
Hill  7'.  American  Surety  Co.,  200  U.  S. 
197,  50  L.  Ed.  436,  26  S.  Ct.  168,  it  was 
held  that  the  obligation  of  a  public  con- 
tractor's bond,  when  construed  in  the 
light  of  the  statute  requiring  its  execu- 
tion, and  looking  to  the  protection  of 
these  who  supply  labor  and  m_aterials 
provided  for  in  the  original  contract,  wa^ 
broad  enough  to  include  laborers  whu 
had  performed  work  for  a  subcontractor 
who  furnished  labor  or  material  whicli 
the  original  contractor  had  obligated 
himself  to  furnish.  Hardaway  z^.  Na- 
tional Surety  Co.,  211  U.  S.  552,  53  L.  Ed. 
321.  29  S.  Ct.  202.  and  see  to  the  same 
effect  Mankin  v.  United  States,  215  U. 
S.  533,  54   L.   Ed.  315,  30  S.   Ct.  174. 

In   Hill  t:   American  Surety  Co.,  200  U. 
S.  197,  50  L.  Ed.  436,  26  S.  Ct.  168,  it  was 
held  that  the  original  contractor  ydio  em- 
ployed  a   subcontractor   who   b<n'ght   ma- 
terials or  hired  labor  v/ith  which  to  carry 


out  and  fulfill  the  engagement  of  the 
original  contract  for  the  construction  of 
a  public  building,  was  tnereby  supplied 
with  materials  and  labor  for  the  fulfill- 
ment of  his  contract  as  etfectually  as  if 
he  had  directly  hired  the  labor  or  bought 
the  materials.  Hardaway  v.  National 
Surety  Co.,  211  U.  S.  552,  53  L.  Ed.  321. 
29   S.   Ct.   202. 

"The  contractor  can  protect  himself  by 
requiring  a  bond  securing  him  against 
liability  on  account  of  engagement  of  the 
subcontractor  with  persons  who  furnish 
labor  and  material  upon  his  order."  Man- 
kin z'.  United  States,  215  U.  S.  533,  54  L. 
Ed.  315,  30  S.  Ct.  174,  quoting  Hill  v. 
American  Surety  Co.,  200  U.  S.  197,  50 
L.    Ed.    436,    26    S.    Ct.    IGS. 

The  additional  phrase,  "the  person  or 
persons  supplying  the  contractor  with  la- 
bor and  materials,"  used  in  the  Act  Feb. 
24,  jyu."j,  c.  7  78,  33  Stat,  bll  (U.  S.  Comp. 
St.  Supp.  1909,  p.  948),  amending  Act 
Aug.  13,  1894,  c.  280,  28  Stat.  27S  (,U.  S. 
Comp.  St.  1901,  p.  2523),  in  describing  the 
persons  entitled  to  a  copy  of  the  contract 
and  bond  for  the  purpose  of  suit,  does 
not  change  the  rule  that  labor  and  ma- 
terials used  in  the  prosecution  of  a  pub- 
lic work,  though  furnished  to  a  subcon- 
tractor, are  within  the  obligation  of  a 
bond  conditioned,  conformably  to  those 
statutes,  for  the  prompt  payment  by  the 
contractor  to  all  persons  supplying  him 
with  labor  or  materials  in  the  prosecu- 
tion of  the  work.  Judgment  (l90S),  153 
F.  1021,  86  C.  C.  A.  672,  aftirmed.  :\lan- 
kin  V.  United  States,  215  U.  S.  533,  54  L. 
Ed.  315,   30   S.   Ct.   174. 

"The  phrase,  'person  or  persons  sup- 
plying the  contractor  with  labor  and  ma- 
terials,' are  the  words  embodied  in  both 
statutes  alike  in  the  requirement  of  a 
bond  for  their  benefit."  Mankin  v.  United 
States.  215  U.  S.  533,  54  L.  Ed.  315,  30  S. 
Ct.   174. 

Not  limited  to  amount  unpaid  to  sub- 
contractor.— The  recovery  on  tlic  bond 
of  a  c'-ntractor  for  a  public  work  for  la- 
bor and  materials  furnished  a  subcon- 
tractor is  not  limited  to  the  amounts  re- 
maining unpaid  to  the  subcontractor 
when  notice  was  given  of  outstanding- 
claims,  where  the  bond  is  conditioned,, 
conformably  to  Acts  Aug.  13,  1894,  c.  280, 
28  Stat.  278  (U.  S.  Comp.  St.  1901,  p. 
2523),  and  Act  Feb.  24.  1905.  c.  778.  33 
Stat.  811  (U.  S.  Comp.  St.  Supp.  1909,  p. 
948),  for  the  prompt  payment  by  the 
contractor  to  all  persons  supplying  him 
with  labor  or  materials  in  the  prosecu- 
tion of  the  work.  Mankin  v.  United 
States,  215  U.  S.  533,  54  L.  Ed.  315,  30  S. 
Ct.    174. 


1257 


1137  WORKIXG  CONTRACTS.  \o\.  XL 

furnished  by  the  assignees  of  the  contract,  where  the  contract  of  assignment 
obHgates  the  assignor  only  to  assign  the  reserve  fund  in  the  hands  of  the  gov- 
ernment, and  to  turn  over  the  checks  or  payments  under  the  original  contract, 
is  not  within  the  obligation  of  such  bond.'^"^ 

Assignment  of  Claim  against  Contractor. — Claims  for  labor  and  mate- 
rials against  a  contractor  for  a  public  work  may  be  assigned  without  losing 
the  protection  of  the  bond  given  conformably  to  Act  of  Aug.  13,  1894.  c.  280, 
28  Stat.  278  ( U.  S.  Comp.  St.  1901,  p.  2523).  as  amended  bv  Act  Feb.  24, 
1905,  c.  778,  ZZ  Stat.  811  (U.  S.  Comp.  St.  Supp.  \9Q9.  p.  948),  for  the  benefit 
of  laborers  and  materialmen."^*^'' 

D.  Priorities  and  Preferences — 1.  Preference  to  United  States. — No 
preference  to  the  United  States  over  other  creditors  was  granted  by  the  Act  of 
1894,  but  the  Act  of  Feb.  24,  1905,  contained  a  provision  granting  such  pref- 
erence. That  provision  applies  to  bonds  executed  subsequent  to  the  enactment 
of  the  statute'*" 

2.  Lien  oe  United  States  for  Partial  Payments  on  A'essels  under  Con- 
struction.— The  lien  for  partial  payments,  reserved  by  the  federal  govern- 
ment in  a  contract  for  the  construction  of  a  vessel,  can  not  be  deemed  to  be 
intended  to  be  superior  to  those  of  contractors  for  labor  and  material  who 
have  contributed  to  the  work,  where  the  contract  required  a  bond  to  be  given, 
conditioned  for  the  faithful  performance  of  the  contract,  and  the  prompt  pay- 
ment to  other  persons  supplying  labor  and  materials  in  the  prosecution  of  the 
work."^^"^  The  lien  of  the  federal  government  for  partial  payments,  reserved 
in  a  contract  for  the  construction  of  a  revenue  cutter,  in  accordance  with  the 
joint  resolution  of  congress  of  ^lay  5,  1894  (28  Stat,  at  L.  582,  583,)  which 
merely  directs  how  contracts  thereafter  made  shall  provide  with  reference  to 
liens  upon  such  vessels,  is  one  created  only  by  tlic  terms  of  the  contract,  and  is 
not  an  express  statutory  lien  by  authority  of  the  United  States,  which  would 
be  superior  to  any  asserted  rights  under  the  lien  laws  of  a  state.""'" 

E.  Discharge  of  Sureties. — Changes  in  Plans  or  Specifications. — Pro- 
visions in  a  contract  for  a  public  work  requiring  that  changes  in  the  plans  or 
specifications,  deemed  desirable  by  the  government,  be  agreed  to  in  writing  by 
the  parties  to  the  contract  before  the  work  contemplated  by  such  changes  is  be- 
gun, do  not  require  the  assent  of  the  sureties  in  order  not  to  work  their  dis- 
charge."*^° 

1137-70J.    Hardawav  v.   National   Surety  1137-701.     United    States    Fidelity,    etc., 

Co.,    211    U.    S.    552,    53    L.    Ed.    3L^t,    29    S.  Co.  v.   United   States,  209  U.   S.   306,  52   L. 

Ct.  202.  Ed.    804,   28    S.    Ct.    537. 

A   surety  on   tlie   bond   of  a  public   con-  113/-70m.       United      States     r.     .\nsonia 

tractor  is  not  liable  on  a  claiin  for  labor  Brass,  etc.,   Co.,  218  U.   S.  452,   54   L.  Ed. 

and  materials  furnished  by  the  assignees  1107,  31    S.  Ct.  49. 

of    the    contract,    where    the    contract    of  1137-70n.     United     States      v.      Ansonia 

assignment    obligates    ihe    assignor    onlj^  Brass,  etc.,   Co.,  218  U.  S.  452,   54  L.   Ed. 

to   assign   the    reserve   fund   in   the   hanus  1107,  31  S.  Ct.  49. 

of  the   government,   and  to  turn   over  the  1137-70o.     United    States    v.    IMc^Iullen, 

checks    or    payments    under    the    original  222  U.  S.  460,  56  L.  Ed.  269,  32  S.  Ct.  12«. 

contract.      Hardaway   v.    National    Surety  "In    United    States   v.    Freel,    186    U.    S. 

Co.,    211    U.    S.    552,    53    L.    Ed.    321,    29    S.  309,   317,   46   L.   Ed.   1177,   22   S.   Ct.   875,    it 

Ct.  202.  was    recognized    that    a    clause    similar    to 

"There  was  no  undertaking  on  the  part  the  one  to  which  we  have  referred  con- 
of  the  surety  company  that  the  contract  cerning  the  case  of  the  United  State* 
should  be  profitable  to  its  principal  or  deeming  changes  desirable  would  au- 
to any  other  substituted  in  the  contract  thorize  some  changes  of  plan  without  dis- 
by  assignment  or  otherwise."  Hardawp-i-  charging  the  sureties.  It  is  true  that  that 
V.  National  Surety  Co.,  211  U.  S.  552,  53  contract  contained  a  proviso  that  no 
L.  Ed.  321,  29  S.  Ct.  202.  change    of    the    kind    should     afifect      the 

1137-70k.     Title    Guaranty,    etc.,    Co.    v.  validity  of  the  contract,  which,  of  course. 

Crane   Co.,  219  U.   S.  24.   55  L.   Ed.   72,   31  it    would    not    in    any    event    if    the    con- 

S.   Ct.   140.  tractor  agreed  to  it.     But  the  sureties,  so 

V         1258 


Vol.  XL  WORKING  CONTRACTS.  1137 

Extension  of  Time  of  Performance. — The  sureties  on  the  bond  of  a  pub- 
lic contractor,  conditioned  upon  the  faithful  performance  of  a  contract  for 
■dredging  a  channel,  were  not  discharged  by  an  extension  of  the  time  fixed  for 
performance,  accorded  by  the  government  to  the  contractor,  where  the  con- 
tract definitely  contemplated  what  the  nature  of  the  work  made  manifest,  that 
it  might  be  necessary  or  very  convenient  to  extend  the  time,  and  expressly 
provided  for  a  per  diem  deduction  from  the  contract  price  for  a  delay  beyond 
the  time  prescribed  for  the  completion  of  the  workJ*^'P 

F.  Subrogation  of  Sureties. — The  right  of  a  surety  for  a  government 
contractor  to  be  subrogated,  in  case  of  loss,  to  the  contractor's  right  to  the  re- 
serve fund  in  the  hands  of  the  government,  representing  work  done  prior  to 
an  assignment  of  the  contract,  is  superior  to  any  rights  of  the  assigneesJ^" 

G.  Enforcement — 1.  Statutory  Procedure  Generally. — The  Act  of 
Aug.  13;  1894,  requiring  a  bond  from  a  public  contractor  for  the  benefit  of  the 
persons  supplying  the  labor  or  materials  in  the  prosecution  of  public  works, 
provided  a  right  of  action  in  the  name  of  the  United  States  for  the  use  and 
benefit  of  such  persons.  In  that  act  there  was  no  limitation  upon  the  number 
of  actions  which  might  be  brought.  In  the  amended  Act  of  Feb.  24,  1905,  o 
single  action  was  provided  for,  and  priority  was  given  to  the  claim  and  judg- 
ment of  the  United  States.  In  such  suit  any  person  or  company  who  had  fur- 
nished labor  or  material  used  in  the  construction  or  repair  of  any  public  building 
was  allowed  to  intervene  in  the  suit  by  the  United  States  on  the  bond,  and  to 
have  their  rights  and  claims  adjudicated ;  and  it  was  further  provided  that, 
if  no  suit  should  be  brought  by  the  United  States  within  six  months  of  the 
completion  and  final  settlement  of  the  contract,  then  the  person  or  persons 
supplying  the  labor  or  materials  should,  upon  filing  an  affidavit  in  the  department 
imder  the  direction  of  which  the  work  had  been  done,  or  the  materials  furnished, 
"be  furnished  with  a  certified  copy  of  the  contract  and  bond,  and  might  there- 
upon bring  an  action  in  the  name  of  the  United  States  in  the  circuit  court  of 
the  United  States  in  the  district  where  the  contract  was  performed  and  ex- 
ecuted. There  are  other  provisions  looking  to  the  distribution  of  the  recovery 
upon  the  bond,  and  providing  for  bringing  all  creditors  into  the  single  suit 
which  is  authorized  to  be  instituted.'*^"" 

2.  Retroactive  Effect  of  Amendatory  Remedial  Statute. — Those  pro- 
visions, if  anv,  governing  procedure,  contained  in  the  amendment  made  bv  the 
Act  of  Feb.  24.  1905,  c.  778,  33  Stat.  811  (U.  S.  Comp.  St.  Supp.  1907,  p. 
709),  to  Act  Aug.  13,  1894,  c.  280,  28  Stat.  278  (V .  S.  Comp.  St.  1901,  p. 
2523).  for  the  protection  of  persons  furnishing  materials  and  labor  for  the  con- 
struction of  public  works,  will  not  be  given  a  retroactive  efi'ect  so  as  to  apply 
to  existing  causes  of  action,-  where  such  amendatory  statute,  which  consists 
of  but  one  section,  contains  various  provisions  dealing  with  substantive  rights, 
which  must  be  regarded  as  prospective  in  their  operation.'"" 

far  as  appears,  signed  the  bond  only  and  1137-70r.  Mankin  7'.  United  States.  215 
were  sued  upon  that.  The  proviso  did  U.  S.  .533.  54  L.  Ed.  31.5,  30  S.  Ct.  174. 
not  afifect  thoir  case.  See,  also,  Guaranty  1137-70s.  United  States  Fidelity,  etc., 
Co.  V.  Pressed  Brick  Co.,  191  U.  S.  416.  Co.  v.  United  States.  209  U.  S  306.  52  L. 
424,  48  L.  Ed.  242,  24  S.  Ct.  142."  United  Ed.  804,  28  S.  Ct.  537,  followed  in  David- 
States  V  McMullen,  222  U.  S.  460.  56  L.  son  Bros.  Marble  Co.  ■<•.  United  States. 
Ed.    260.    32    S.    Ct.    128.  213   U.    S.   10,   53   L.   Ed.   675.   29   S.   Ct.   32  4. 

1137-70p.     United    States    ?■     McMullen.  Venue— Proper    district    for   suit.— The 

222  U.  S.  460.  56  L.  Ed.  269,  32  S.  Ct.  128.  provisions    as    to    the    proper    district    for 

1137-70q.    Hardaway-f.   X^*^ional   Surety  suit   on    tlie   bond   of  a   public   contractor, 

Co..    211  U.    S.  552.    53    L    Ed.    321,  29    S.  made    by    the    Act    of    February    24.    1905 

Ct. "    202.        See.      also,      Title      Guaranty.  (33     Stat,    at    L.    811.    chap.    778.     U.     S. 

etc     Co.  z\  Crane  Co..  219  U.  S.  24.  55  L.  Comp.    Stat.    Supp.   1907.   p.   709).   amend- 

Ed.  72,  31   S.  Ct.  140.  in<?  the   .\ct   of  August   13,   1894   f28   Stat. 

1259 


1137  WORKING  CONTRACTS.  ■      Vol.  XI. 

3.  Venus  or  District  of  Suit. — See  ante,  "Retroactive  Effect  of  Amenda- 
tory Remedial  Statute,"  VIII>^,  G,  2. 

4.  Parties — United  States. — For  jurisdictional  purposes,  the  United  States 
is  the  real  party  plaintiff  in  an  action  on  a  public  contractor's  bond  executed 
under  the  Act  of  Aug.  13,  1894,  c.  280,  28  Stat.  278  (U.  S.  Comp.  Stat.  1901, 
p.  2523),''^^  but  it  is  sufficient  that  suit  was  begun  in  the  name  of  the  United 
States  to  the  real  plaintiff's  use.*^*^" 

5.  Copy  oe  Bond  and  Aeeidavit  That  Labor  or  Material  Furnished. — 
The  failure  of  plaintiff,  in  an  action  on  the  bond  of  a  contractor  for  a  public 
work,  given  conformablv  to  Act  Aug.  13,  1894,  c.  280,  28  Stat.  278  ( U.  S. 
Comp.  St.  1901,  p.  2523'),  as  amended  by  Act  Feb.  24,  1905,  c.  778,  33  Stat. 
811  (U.  S.  Comp.  St.  Supp.  1909,  p.  948),  for  the  protection  of  laborers  or 
materialmen,  to  apply,  as  provided  in  the  statute,  for  a  copy  of  the  bond,  and 
furnish  an  affidavit  that  labor  or  materials  have  been  supplied  by  him  for  the 
prosecution  of  the  work,  is  not  fatal  to  the  suit,  where  no  action  has  been 
brought  by  the  United  States  for  more  than  six  months  from  the  completion 
of  the  work,  and  affidavits  are  made  and  copies  filed  by  intervenors,  since, 
under  the  circumstances,  the  omission  is  only  a  formal  defect."*'"'' 

6.  Docket  Fees. — Each  successful  claimant  in  an  action  on  the  bond  of  a 
public  contractor,  given  conformablv  to  Act  Aug.  13,  1894,  c.  280,  28  Stat. 
278  (U.  S.  Comp.  St.  1901,  p.  2523)',  as  amended  by  Act  Feb.  24,  1905,  c.  778, 
33  Stat.  811  (U.  S.  Comp.  St.  Supp.  1909,  p.  948),  for  the  protection  of  laborers 
and  materialmen,  may  be  allowed  the  docket  fee  authorized  by  Rev.  St.  U.  S. 
§  824  (U.  S.  Comp.  St.  1901,  p.  632),  since  the  claims  are  several,  and  repre- 
sent distinct  causes  of  action  in  different  parties,  although  consolidated  in  a 
single  suit.'"''' 

IX.    Actions. 

D.  Set-Off  and  Recoupment. — Set-Off  t)f  Expense   of  Completion. — 

See  ante,  "Deduction  of  Expense  of  Completion,''  Nl,  C,  4. 

E.  Evidence. — Parol  Evidence. — Parol  evidence   is   in   order  to   translate 

at    L.    278,    chap.    280,    U.    S.    Comp.    Stat.  v.   United   States,   213   U.   S.   10,  53   L.    Ed. 

1901,  p.  2523),  for  the  protection  of  per-  675,  29  S.  Ct.  324,  following  United  States 

sons    furnishing    materials    and    labor    for  Fidelity,    etc.,    Co.    r.    United    States,    209 

the  construction  of  a  public  work,  do  not  U.  S.  306,  52  L.  Ed.  804,  28   S.  Ct.  537. 

apply   v.-here    the    contract    with,    and    the  1137-70t.    Davidson  Bros.   Marble  Co.  r. 

bond    to,    the    government,    and    the    con-  United    States,    213    U.    S.    10,    53    L.    Ed. 

tiact  under  which  the  labor  and  materials  675,  29  S.  Ct.  324,  following  United  States, 

were   furnished,    all   antedate    the   passage  etc.,   Co.  v.   Kenyon,   204   U.   S.   349,   51   L^ 

of   the    amandatory    act.     Davidson    Bros.  Ed.   516.   27    S.   Ct.   381. 

Marble    Co.    v.    United    States,    213    U.    S  1137-70u.    The  objection  that  the  United 

10,  53  L.  Ed.  675,  29  S.  Ct.  324,  following  States    should    have    been    made    a    party 

United  States  Fidelity,  etc.,  Co.  v.  United  can  not  avail  to  defeat  the  action  on  the 

States,_^209  U.  S.  306,  52  L.  Ed.  804.  28  S.  bond   of  a   contractor   for   a  public   work. 

Ct.   537.  given   conformably   to   Act   Aug.   13,   1894, 

A    suit    brought    in    the    name     of     the  c.  280,  28  Stat.  278  (U.  S.  Comp.  St.  1901. 

United    States    under    the    Act    of   August  p.    2523),    as    amended    by    Act    Feb.    24, 

13,    1894.    on    the    bond    of    a    public    con-  1905,  c.  778,  33  Stat.  811   (U.  S.  Comp.  St. 

tractor,    for   the   beneht   of   a   person    fur-  Supp.   1909.   p.   948),  for  the  protection   of 

nishing   materials   and   labor   for   the   con-  persons    furnishing    labor    and    materials, 

struction    of   a   public   work,    is    governed  where  the   suit  was  begun  in  the  name  of 

by  that  part  of  the  Act  of  March  3,  1887  the    United    States,    to   the    real   plaintiflf's 

(24    Stat,    at    L.    552,    chap.    373),    as    cor-  use.      Title    Guaranty,    etc..    Co.    v.    Crane 

rected  by  the  Act  of  August  13,  1888   (25  Co.,  219  U.   S.  24,  55  L.   Ed.   72,  31   S.   Ct. 

Stat,    at    L.    434,    chap.    865,    U.    S.    Com.p.  140. 

Stat.    1901,    p.    508),    which    provides    that  1137-70v.     Title    Guaranty,    etc.,    Co.    cV 

no  Civil   suit   shall  be  brought  before  anv  Crane  Co..  219  U.   S.  24,  55   L.   Ed.   72,   31 

federal  circuit  court  "against  any  person,  S.   Ct.   140. 

by  original  process  or  proceeding,  in  any  1137-70W.     Title    Guaranty,    etc.,    Co.    cV 

other  district  than  that  whoreof  he  is  an  Crane   Co..   219  U.   S.  24,  55  L.   Ed.   72,   31 

inhabitant."      Davidson   Bros.   ISIarble    Co.  S.    Ct.    140. 

1260 


Vol.  XI.  WYANDOTTE  CESSION.  1137-1139 

the  words  and  the  implications  of  words  into  things.  In  the  case  of  a  contract 
to  grind  all  the  sugar  cane  raised  by  a  lessee  upon  certain  specified  plantations 
leased  to  him  for  a  certain  number  of  grinding  seasons,  parol  evidence  is  ad- 
missible to  show  what  that  season  is;  but  the  season,  when  ascertained,  is  the 
limit  by  the  very  meaning  of  the  words  used,  when  used  in  a  business  contract 
made  with  regard  to  one  of  the  great  industries  of  the  world."^*^^ 

F.  Subrogation  of  Surety  in  Building  Contract. — See  ante,  "Subroga- 
tion of  Sureties,"  VIII>4,  F. 

G.  Actions  on  Bond  of  Public  Contractor. — See  ante,  "Enforcement," 
VIIIK'.  G. 

H.  Enforcement  of  Lien  of  Laborers  and  Materialmen  Allowed  by 
State  Law. — See  ante,  "Recognition  of  Liens  of  Laborers  and  Materialmen," 
II,  G,  c. 

WORKS  OF  ART.— See  ante,  Revenuiv  Laws,  p.   1071. 
WOULD.— See   note  a. 

WRECKS. — See  references  under  Wrecks,  vol.   11,  p.   1139. 
WRIT  OF  QUO  WARRANTO.— See  ante,  Quo  Warranto,  p.  1044. 
WRIT  OF  RIGHT.— See  the  title  Writ  oe  Right,  vol.  11,  p.  1140,  and  ref- 
erences there  given. 

WRITS. — See  references  under  Writs,  vol.  11,  p.  1141. 

WRITTEN  CONTRACTS.— See  ante,  Frauds,  Statute  of,  p.  600. 

WYANDOTTE  CESSION.— See  ante,  Indians,  p.  641. 

1137-75a.     Porto    Rico     Sugar      Co.      f.  recover."      The    court    gave    the    instruc- 

Lorenzo.  222  U.   S.   481,  56  L.   Ed.  277,  32  tion,   but   substituted   the   word  would   foi 

S.   Ct.   133.  "could."'      It   was   held,    not   to   constitute 

1139-a.      Substitution    of     "would''      for  reversible    error;    that   it    would   be   going 

"could"   in   an    instruction. — An      instruc-  very  far  to  reverse   the  judgment  op   the 

tion    asked    was    sulxsiantially   as    follows:  supposition    that    the    jury     would      have 

'"That     plaintiff     assumed      the     ordinary  seen    a    different    meaning    in     the      word 

risks    not    only    actually    known    to    him,  "could"    than    they    saw     in      the      word 

but  so  far  as  they  could  have  been  known  would    and    in    consequence    would    have 

to   him  by  the   exercise   of  ordinary  care  imputed    a    greater     knowledge      to      the 

on   his   part,   and   that   if   he   knew,    or  by  plaintiff   of  the   risks   of  his   employment, 

the   exercise   of  care   and   prudence   could  Standard  Oil  Co.  v.  Brown,  218  U.  S.  78, 

have  known,  of  the  existence  of  the  thing  87,  54  L.  Ed.  939,  30  S.  Ct.  669.     See  ante, 

that  caused  his  injury,  then  he  could  not  PIASTER    AND  SERVANT,  p.  851. 

1261 


D     000  321  975     5 


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